author: Darrell Hickman, Justice. Robert H. Dudley, Justice,

text:
    ARKANSAS PUBLIC SERVICE COMMISSION v. ARKANSAS ELECTRIC COOPERATIVE CORPORATION
    80-313
    618 S.W. 2d 151
    Supreme Court of Arkansas
    Opinion delivered June 22, 1981
    [Rehearing denied July 20, 1981.]

      Jeff Broadwater, for appellant.

      Leland F. Leatherman and Allen, Cabe & Lester, for appellee.
   Darrell Hickman, Justice.

In 1979 the Public Service Commission decided to exercise jurisdiction over the rates and charges of the Arkansas Electric Cooperative Corporation.

The hearing preceding the order and the issues on appeal form only one question, whether the Commission is attempting to regulate wholesale interstate sales of electricity. The Commission concluded that it was not and could, therefore, assume jurisdiction.

Arkansas Electric Cooperative Corporation was formed to serve its seventeen members who are all Arkansas electric cooperatives. The only Arkansas cooperative that is not a member is one located at Newport, Arkansas. The appellee corporation was formed by the seventeen cooperatives so that the customers of the cooperatives could be better served; borrowing and purchasing power are more economical through a joint effort.

The appellee generates some of its electricity and buys the remainder from utility companies located in Arkansas. Apparently the appellee sells some of its electricity to these same utility companies when there is a surplus of energy. Other than those sales, all the power generated and bought by the appellee is sold to the seventeen Arkansas cooperatives. It is conceded that these cooperatives must buy the power and that the rate is determined by the appellee. It is not a negotiated rate and the rate is not regulated by any state or federal agency.

The PSC decided that it could exercise jurisdiction over those sales which were “essentially local.” In its order the PSC said, “This Commission would not attempt to regulate the rate at which AECC purchases power in interstate commerce and that rate, of course, must act as a base for the price at which it resells that power to its members.”

The corporation appealed the order to circuit court and the court reversed the Commission’s decision. The court found that the sales of the corporation were wholesale sales in interstate commerce over which the PSC had no jurisdiction.

We find the Commission had the authority by Arkansas statutes to exercise jurisdiction and that this authority is neither preempted by any federal law nor prohibited by the Commerce Clause of the United States Constitution.

The Arkansas statutes give the Commission the authority over public utilities and the appellee is such a utility. See Ark. Stat. Ann. § 73-201, et seq. (Repl. 1979). There are no exceptions for regulating wholesale sales. Ark. Stat. Ann. § 73-202(a) (Repl. 1979).

The Commission concedes it cannot regulate wholesale sales in interstate commerce and contends that it has no intention of doing so. The appellee cites authority that the Commission’s order will do just that.

The distinguishing features in this case are as follows: The appellee is an Arkansas corporation formed for the purpose of serving seventeen Arkansas cooperatives. While it may incidentally and from time to time buy or sell electricity that may cross a state line, that is not its purpose. The utility companies that it buys from and sells surplus electricity to do serve customers in other states. Those are Arkansas Power & Light Co., which is a part of Middle South Utilities, Southwest Electric Power Co., and Southwestern Power Administration.

But the Commission found:

... AECC’s business, indeed its very reason for existence, is the generation, purchase and transmission of electricity for and to its members, seventeen Arkansas electricity distribution cooperatives, who retail the electricity to their members in this State.

The appellee cites several cases as authority for its position. They are all distinguishable. Public Utilities Commission v. Attleboro Steam & Electric Co., 273 U.S. 83 (1927) is not controlling because in that case a Rhode Island utility company had a wholesale customer in Massachusetts. The court found the regulation by Rhode Island was not local but essentially national. The Court prevented Rhode Island from setting the rate. The appellee in this case exists to serve seventeen Arkansas cooperatives; it sells to none in other states.

The case of Federal Power Commission v. Southern California Edison Co., 376 U.S. 205 (1965) is not controlling because that case interpreted the Federal Power Act and did not involve a cooperative. The Federal Power Commission took jurisdiction over wholesale rates charged by Edison, a California utility company, to the city of Colton, which is also in California. A small amount of power sold by Edison originated in other states. This case does not control because it concerned an interpretation of the Federal Power Act. The Federal Power Commission has held that the Federal Power Act does not apply to cooperatives financed by the Rural Electrification Administration. Re Dairyland Power Cooperative, 67 PUR 3d 340 (1967). The appellee concedes that the Federal Power Commission has not attempted to regulate its rates.

Tri-State Generation & Transmission Association v. Public Service Commission, 412 F. 2d 115 (10th Cir. 1969)is not controlling because of distinguishing facts. Cooperatives in three states, Colorado, Wyoming, and Nebraska, formed a corporation just like the appellee. The Circuit Court of Appeals found the Wyoming Public Service Commission had prevented the Wyoming cooperative from paying contractual obligations to Tri-State which imposed a burden on interstate commerce. The appellee consists of cooperatives only in Arkansas and there is no evidence of a burden on interstate commerce.

In Missouri v. Kansas Natural Gas Co., 265 U.S. 298 (1924), Missouri sought to regulate a situation where power originating in Oklahoma passed through Kansas and was sold in Missouri. The Court held that the sale of this power was “an inseparable part of a transaction in Interstate Commerce — not local, but essentially national in character . . .” In distinguishing this case, the appellant Commission found:

. . . [I]t seems to us that the rates and charges of AECC that could effectively be regulated by this Commission are for transactions essentially local in character. Unlike Kansas Gas, [Missouri v. Kansas Natural Gas Co., 265 U.S. 98 (1924)] which sold in an open interstate market, AECC exists to serve its members. Its transactions with them do not constitute “an unbroken chain, fundamentally interstate from beginning to end.” Those transactions begin and end here in Arkansas. This service is hardly “of the character which require(s) general and uniform regulation of rates by Congressional action.” Unlike the Narragansett Company, AECC does not serve customers in other states whose authorities might retaliate, to the detriment of interstate commerce. Unlike Rhode Island, this Commission does not seek to regulate, nor do we read our statutes as requiring us to regulate, interstate transactions of AECC, if there be any. If our regulation of rates charged to local customers has an “effect” unto interstate commerce, it can only be incidental, given a continuation of the present circumstances and policies of the company, which there is no reason not to expect. (That issue, however, can properly be dealt with only when and if it arises.) Nor does it matter that AECC’s transactions with its members may be characterized as wholesale, for, as the Court said in Attleboro [Public Utilities Commission v. Attleboro Steam & Electric Co., 273 U.S. 83 (1927)] the test “is not the character of the general business ... but whether the particular business which is regulated is essentially local or national in character.” The particular business this Commission must regulate, between AECC and its members, is decidedly local, having its paramount impacts and consequences in Arkansas and having little or no relation to any other place.

The hearing did not delve into whether the appellee had been fair in its charges to its seventeen members. The only suggestion that the appellee’s costs might be excessive was a reference to the fact that the appellee had thirty-four board members who met once a month and received $75.00 per diem for that meeting.

We find the appellant has the authority to take jurisdiction as it proposes and reverse the judgment of the circuit court.

Reversed.

Holt and Dudley, JJ., dissent.

George Rose Smith, J., not participating.

Robert H. Dudley, Justice,

dissenting. Appellee has two sources of electric power. One is from generating plants located in Arkansas. The other is from purchasing electricity from Southwest Electric Power Company, Southwestern Power Administration, Arkansas Power & Light Company and Ark-Mo Power Company. This purchased power is generated at facilities located in Oklahoma, Missouri, Texas or Arkansas and is transmitted to appellee from multi-state integrated systems or grids so that it is impossible to identify the generating facility which produced any particular energy.

Appellee sells power to A.P. & L. and to S.P.A. That power goes into multi-state grids or integrated systems maintained by those purchasers and may be transmitted and consumed in Oklahoma, Missouri, Texas or Arkansas.

Appellee is engaged in interstate commerce. The purchasing from interstate sellers of some of the power which it, in turn, sells to its member cooperatives and to other purchasers is the same sort of transaction involved in the case of Tri-State Generation & Transmission Ass’n., Inc. v. Public Service Commission of Wyoming, 412 F. 2d 115 (10th Cir. 1969). Tri-State was a nonprofit cooperative corporation as is appellee. Tri-State had 28 R.E.A. cooperative members in three states who sold electricity at retail, while appellee has 17 R.E.A. cooperative members in Arkansas who sell electricity at retail. In Tri-State, the 28 member cooperatives were subject to regulation by the states, and in this case the 17-member cooperatives are regulated by the appellant P.S.C. The Tenth Circuit Court of Appeals held that Tri-State was clearly engaged in interstate commerce and the Wyoming P.S.C. action patently had the potential of interfering with interstate commerce. Likewise, appellee is clearly engaged in interstate commerce, and the P.S.C. action patently has the potential of interfering with interstate commerce. The majority opinion dismisses Tri-State by stating it “is not controlling because of distinguishing facts.” Even the P.S.C. does not go that far as the Commission order states: “In candor, we should add that, for the reasons stated in the dissent therefrom, we do not think Tri-State was correctly decided ...” and also that the P.S.C. will not nullify appellee’s “ability to pass on the cost of purchased power to its members, as Wyoming seemingly did or was perceived by the Court of Appeals to have potentially done.”

There are constitutional limitations upon state regulation of interstate commerce. In Public Utilities Commission of Rhode Island v. Attleboro Steam & Electric Company, 273 U.S. 83 (1927), a Rhode Island company sold electricity at wholesale to a Massachusetts company. The Supreme Court denied Rhode Island the power to regulate the transaction for the sale of energy at wholesale. This was in 1927, before Congress had passed the Federal Power Act or any similar pre-emption statute, and the Court ruled that since the sale was of concern to both Rhode Island and Massachusetts it was “national in character” and not subject to state regulation. Consequently, “if such regulation is required it can only be attained by the exercise of power in Congress.” Hence, the commerce clause is a limitation upon state power, whether or not Congress has chosen to regulate.

Congress undertook federal regulation through the Federal Power Act in 1935 and the Natural Gas Act in 1938. The premise on which Congress acted was that constitutional limitations upon state regulatory power made federal regulation essential if major aspects of interstate transmission and sale were not to go unregulated. “What Congress did was to adopt the test developed in the Attleboro line which denied state power to regulate a sale ‘at wholesale to local distributing companies’ and allowed state regulation of a sale at ‘local retail rates to ultimate consumers.’ ” Federal Power Commission v. Southern California Edison Co., et al, 376 U.S. 205 at 214 (1964), discussed in treatises and articles as the “Colton case.”

In the Colton case, supra, Southern California Edison Company, a public electric utility company, operating in central and southern California, sold energy only to customers in its California territory. These customers included the City of Colton, which used some of the power for municipal purposes but resold the bulk of the power to residential and commercial customers. The California Public Service Commission had exercised jurisdiction over the Edison-Colton energy transaction for years. The Federal Power Commission asserted jurisdiction and ultimately the Supreme Court of the United States ruled that the state could not regulate this transaction and that the Federal Power Commission could.

The majority inferentially concedes that the P.S.C. cannot regulate wholesale sales in interstate commerce. To avoid this issue, and the Colton case, the majority goes outside the abstracts submitted in this case, goes to the record to reverse a trial judge, and cites a footnote to the order stating that there will be no attempt to regulate interstate commerce. However, the ordering clause of the decree provides, “Henceforth, A.E.C.C. should regard itself as subject to the jurisdiction of this Commission and within thirty days shall file with the Secretary its schedules and tariffs for approval pursuant to applicable law.”

Even if it should attempt to regulate only intrastate sales it would be beyond the reach of the P.S.C. for, as stated, the regulation of the sale of electric energy at wholesale patently has the potential of interfering with interstate commerce.

The majority opinion also states that power occasionally ends up in another state, indicating this is a local operation. Yet the P.S.C. has never supplied one single figure to set out percentages of interstate versus intrastate power. Yet it is certain that interstate and intrastate power comes and goes by interstate transmission grids as appellee has very little transmission capability of its own. Even so, that is not of great significance for the Supreme Court in the Colton case ruled out any case by case impact analysis deciding this type of case:

“. . . In short, our decisions have squarely rejected the view of the Court of Appeals that the scope of the FPC jurisdiction over interstate sales of gas or electricity at wholesale is to be determined by a case-by-case analysis of the impact of state regulation upon the national interest. Rather, Congress meant to draw a bright line easily ascertained, between state and federal jurisdiction, making unnecessary such case by case analysis . . .” 376 U.S. 205, at 215.

That bright line is that states may not regulate interstate sales of electricity at wholesale to local distributing companies, but states may regulate rates at local retail to ultimate consumers.

The appellant contends that the Federal Power Act does not apply to electric cooperatives. This is not a determining factor for the commerce clause is a limitation upon state power whether or not Congress has chosen to regulate. However, it is worth examining. The material facts in this case are the same as those set out in Salt River Project Agricultural Improvement and Power District v. Federal Power Commission, 391 F. 2d 470 at 473 (D.C. Cir. 1968). That court observed:

Though REA regulation and supervision of cooperatives are, in many respects, far more comprehensive than those which the Federal Power Commission exercises over investor-owned utilities, there are certain areas, such as rate-making, where the cooperatives enjoy a freer hand. But it is in these areas that, by their structural nature, the cooperatives are effectively self-regulating. They are completely owned and controlled by their consumer-members, and only consumers can become members. They are non-profit. Each member has a single vote in the affairs of the cooperative, and service is essentially limited to members. No officer receives a salary for his services and officers and directors are prohibited from engaging in any transactions with the cooperative from which they can earn any profit.

The above paragraph, with an additional factor, is applicable to the present case. The additional factor is that much of the energy generated by appellee is sold to its owners, the 17-member cooperatives, who are fully regulated by appellant. The member cooperatives cannot pass on any increases in rates without appellant’s approval. The fact that the Federal Power Act does not apply is insignificant.

Finally, there is no practical reason for the P.S.C. to regulate this non-profit wholesale cooperative. It is simply an additional layer of governmental regulation.

I dissent.


source: Caselaw Access Project

license: Public Domain

text:
    Buel Ray WORTHAM v. LITTLE ROCK NEWSPAPERS, INC.
    81-97
    618 S.W. 2d 156
    Supreme Court of Arkansas
    Opinion delivered June 22, 1981

      R. W Laster and C. James Kubicek, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Darrell Hickman, Justice.

Buel Ray Wortham filed a defamation suit against Little Rock Newspapers, Inc., which publishes a state-wide newspaper, the Arkansas Democrat. He asked for compensatory and punitive damages. Wortham held a license to sell beer at the Sportsman’s Inn and he claimed that a series of articles printed by the Democrat caused him to lose profits and prevented him from selling the Sportsman’s Inn.

The circuit court granted the newspaper’s motion for summary judgment, dismissing Wortham’s suit. The court found no disputed facts, no malice, and that the articles in question were not libelous. We affirm.

In 1979, a reporter for the Democrat, Gene Nail, wrote a series of articles about the Alcoholic Beverage Control Board. The articles were headlined: “ABC files indicate officials habitually ignored liquor laws”; “Two liquor licenses may violate law”; “Director will review cases soon”; “Clinton says aides believe liquor actions are legitimate.” In these articles it was mentioned that the Sportsman’s Inn had been issued an illegal license by the ABC Board. One of those references read: “The Sportsman’s Inn was apparently ineligible for a beer license because the Mad Dog Saloon, a previous business at the same address, had its license revoked within one year before the application for a new permit.” Another reference said: “The apparent illegality of the Sportsman’s Inn permit stems from another law which states that ‘where a permit for any premises permitted has been revoked, no permit shall thereafter be issued for a period of one year after such revocation for such permitted premises or any part of the building containing such permitted premises.’ ” The reporter noted that three months earlier the ABC Board had declined to issue a license to another person for the same location and evidently based his reference to the Sportsman’s Inn license on this fact.

As it turned out, Wortham obtained a beer license, not a liquor license. The law treats these licenses differently. A beer license is exempted from the prohibition but a liquor license is not. See Ark. Stat. Ann. § 48-107 (Repl. 1977). The articles mentioned that the attorney for the ABC Board advised the Board that its actions were proper because there was an exemption in the case of a beer license.

In a memorandum to the Governor of Arkansas the same reporter furnished a list of the findings he made in investigating the practices of the ABC Board. One of nine questionable actions by the Board mentioned the Sportsman’s Inn license. It simply read: “Illegal license issued to a location that had a license revoked within one year. 48-315.”

The Sportsman’s Inn license was actually a small part of the articles in question. Another license which was issued to Jimmy Doyle Country Club was more extensively discussed.

There were no disputed facts in this case. It was admitted that the Democrat published the articles and the reporter stated under oath that he had no malice toward Wortham. Wortham admitted under oath' that he knew of no malice that the reporter or newspaper had toward him.

Wortham’s claim is that the publications were defamatory because they implied that Wortham held his license illegally and was operating a business in violation of the state law, and the articles charged him with a criminal act by implying that a conspiracy existed between him and state officials to violate the laws of the State of Arkansas.

Since there were no disputed facts, the court was correct in considering summary judgment as a remedy. Ryder Truck Rental, Inc. v. Kramer, 263 Ark. 169, 563 S.W. 2d 451 (1978). Certainly there was no defamation per se because there was no statement that Wortham or the Sportsman’s Inn had committed a criminal act. That leaves us with the question of whether defamation may be implied by innuendo.

The test in that regard was discussed in Roberts v. Love, 231 Ark. 886, 333 S.W. 2d 897 (1960). See also Note, Defamatory Innuendo From Innocent Language, 6 Ark. L. Rev. 493 (1952). The words to be defamatory in such cases should be susceptible of two meanings, one defamatory and one harmless. In that regard we read the words in their plain and natural meaning, as they would be interpreted by a reader of the newspaper considering the articles as a whole.

The articles implied no illegal conduct on the part of the Sportsman’s Inn or Wortham. To the contrary, all of the implications are directed toward the ABC Board and its officials. There is no suggestion that Sportsman’s Inn or Wortham in any way improperly influenced the Board, committed any crime, or did anything wrong in obtaining its license; only that the Board was wrong in issuing the license. It would be a strained and forced interpretation to say that Wortham was defamed, a posture the law does not take in such a case. W. Prosser, The Handbook of the Law of Torts, 763 (3d ed. 1964).

The concurring opinion proposes a disposition of this case on whether Wortham was a public figure. That is not an issue before us on appeal.

The trial court was right in granting summary judgment.

Affirmed.

Dudley, J., concurs.

Robert H. Dudley, Justice,

concurring. While concurring in the decision, I disagree with the reasoning of the majority which is bottomed on the premise that it takes “a strained and forced interpretation to say Wortham was defamed.” This case is before us on a motion for summary judgment and we are required to view the evidence in the light most favorable to the party resisting the motion, appellant Wortham, with all doubts and inferences being resolved against the moving party, appellee Little Rock Newspapers. The published articles continually used the phrases “may violate the law,” “appear to viólate State laws,” “apparently violate State laws,” “possible illegal license,” and the “apparent illegality of the Sportsman’s Inn permit.” Most reasonable and fair-minded readers would have concluded that appellant Wortham or the Director of the Department of Alcoholic Beverage Control, or both, violated the law. In truth, no law was violated. Logically, this summary judgment procedure mandates a finding that a valid dispute exists about whether Wortham was defamed.

Appellant, in order to operate his two taverns, had to obtain the required licenses from the Department of Alcoholic Beverage Control. The sale of intoxicating liquors is the most heavily regulated of public privileges. Ark. Stat. Ann. Title 48. As a part of the process to obtain licenses Wortham had to publish public, notices of his applications. Ark. Stat. Ann. § 48-528 (G) (Repl. 1977). Those notices, which the applicant must have “caused to be published at least once a week for two consecutive weeks in a legal newspaper of general circulation ...,” must give the name of the applicant and the name of his proposed business, state that he is of good moral character, has never been convicted of a felony, and has never been convicted of violating liquor laws. The Director must then notify the sheriff, the chief of police, the prosecuting attorney, the circuit judge and the city board of directors of the pending application. § 48-528 (I). If any one of these public officials protests the granting of the license to the applicant, it must be delayed until a public hearing is conducted. § 48-528 (J). Clearly, a person becomes a public figure by the time he obtains a public liquor or beer license.

Given this set of facts we must cope with the. problem of whether the matter is privileged, for if it is, then no action will lie, and if it is not, the summary judgment must be reversed. To struggle with the facts in each case is quite hopeless and, in my opinion, a needless quagmire.

The narrow issue is freedom of the press to criticize, albeit wrong, the governmental issuance of a beer permit to an individual who is a public licensee. The majority would leave the would-be critic subject to the quieting effect of possible libel actions to be decided on a case by case basis. The result will be to dampen the vigor and limit the variety of public debate, an erosion of the First Amendment protection. To allow the imposition of damages through libel laws for a discussion of public affairs is to impinge upon free and open discussion. Only the hardiest of publishers will engage in public debate in the face of such financial risk.

I would hold that Wortham, a public licensee, was defamed but that the First Amendment prohibits the imposition of damages for this discussion of public affairs.


author: Darrell Hickman, Justice.

text:
    Warren E. SUMLIN v. STATE of Arkansas
    CR 78-217
    617 S.W. 2d 372
    Supreme Court of Arkansas
    Opinion delivered June 22, 1981

      Manuel E. Pruitt-, and Warren Sumlin, pro se, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for /appellee.

      Len W. Holt, amicus curiae.
   Darrell Hickman, Justice.

Warren Sumlin was convicted of capital murder and sentenced to death. The charge was that he was an accessory to the murder of J. Y. Cooper. Cooper was killed by Warren Sumlin’s wife who took Cooper’s wallet and vehicle. The vehicle was to be used in an escape that the Sumlins planned.

Sumlin was in the Columbia county jail in the fall of 1977, awaiting extradition to California. While in jáil he married Ruth Sumlin on the 2nd day of October, 1977. Together they planned Warren’s escape from jail. Ruth Sumlin was to get a man named J. Y. Cooper drunk and steal his car which was to be used in flight. Afterwards Ruth was to force the jailer at gunpoint to free Sumlin. The State’s case was uncontroverted in most regards.

There was substantial evidence to support the jury’s finding that Sumlin was an accomplice to the murder of Cooper and that the murder was committed in the furtherance of two felonies, one to rob Cooper and steal his vehicle and the other to break Sumlin out of jail. However, because of the possibility of prejudice during the sentencing phase of the trial and because of our prerogative of comparative review in death cases, we reduce the sentence of death in this case to life imprisonment without parole.

Briefly, the facts are that Warren and Ruth Sumlin had discussed the escape in the jail and the plan was overheard by several other people. Ruth obtained a pistol ten days before the escape. J. Y. Cooper, an older man, had shown an interest in Ruth Sumlin and Ruth was to go with Cooper to a remote area, get him drunk, and take his vehicle. Ruth had gone out with Cooper and, according to her testimony, had sexual intercourse with him but because Cooper tried to attack her, she shot him. She admitted taking Cooper’s car, going to the jail, and using a gun and knife to force the jailer to release Sumlin. The other cells also were opened and four other prisoners escaped. Two prisoners, Jackie Moore and Thurman Moore, accompanied the Sumlins in flight. A wild escapade followed the escape. At one time when both of the Moores were in the front seat of the vehicle, they were shot at the same time, evidently by both Sumlins who were in the back seat. Jackie Moore was shot in the head and Thurman Moore, Jr., was shot twice in the neck. Both were able to escape and both testified against Warren Sumlin. A good Samaritan who stopped to assist what appeared to be Mrs. Sumlin having difficulty with the vehicle was also shot by Warren Sumlin. Fortunately he was not killed. When a policeman finally cornered the Sumlins, Warren Sumlin tried to escape and in doing so rammed a vehicle which had stopped so that the driver could assist the policeman.

Ruth Sumlin was tried separately on identical charges and was found guilty and sentenced to life without parole. At her trial she testified that it was Warren Sumlin who killed Cooper. This was contrary to strong evidence that Ruth had committed the deed. Ruth also testified that she was under the influence of Warren Sumlin and that the escape was Warren’s plan, not hers. At Warren Sumlin’s trial Ruth recanted her previous testimony and admitted that she killed Cooper. She claimed that the entire idea of breaking Warren Sumlin out of jail was her idea. Otherwise, Ruth’s testimony paralleled that at the first trial.

The escape plan was common knowledge in the jail. Thurman Moore, a fellow prisoner, testified that Sumlin told him that Ruth was to “fool around” with J. Y. Cooper in order to get Cooper’s car for the jail break. Ruth was supposed to get Cooper drunk and drop him off somewhere. Moore said he questioned Sumlin as to what Ruth would do if Cooper did not cooperate. Moore said Sumlin simply made a motion with his index finger as if he were pulling the trigger. Moore said that he was informed of all the details of the escape and had been told if the jailer did not cooperate, Ruth was going to shoot him.

Troy Lee Biggs testified that he was in the Columbia County jail when the escape occurred and that at one time he was in the same cell with Sumlin. Biggs testified that the Sumlins talked to each other through a jail window. He said he did not know anything about the escape.

Donald Lee Biddle was in the jail and he said that he knew about a week before the escape that it was going to take place. He said that Ruth Sumlin came to the jail almost every day and talked to her husband through a window. He heard them talking about getting J. Y. Cooper’s car before the escape and heard the plans for both Sumlins to leave in the vehicle. He said that at one time Ruth Sumlin told Warren Sumlin that Cooper might not drink enough and Warren Sumlin told Ruth to do it the best way she could.

Jackie Moore testified that Warren Sumlin had told him he wanted to get out of jail. Moore had heard Warren ask Ruth to get him out.

Counsel for Sumlin raises six objections on appeal. First, it is argued that the aggravating circumstances do not exist beyond a reasonable doubt. and do not justify the sentence of death. The jury found five aggravating circumstances: Sumlin had committed a prior felony with an element involving violence or creating a substantial risk of death or serious injury to another; in the commission of the capital murder he created a great risk of death to another person other than the victim; the murder was committed for the purpose of avoiding arrest or effecting an escape; the murder was committed for pecuniary gain; and, the murder was committed to disrupt or hinder a government function.

The wild escapade that Sumlin participated in cannot be isolated into different instances as he argues. The theft of the vehicle, the jail escape, and the events thereafter were all part of one plan. Ruiz v. State, 265 Ark. 875, 582 S.W. 2d 915 (1979). If Sumlin were indeed an accomplice to the murder of Cooper, the jury could have found that other people were threatened with death or serious injury. For example, the jailer was forced at gunpoint to empty the cells.

There is evidence the murder was committed for pecuniary gain because Cooper’s car and wallet were stolen. The wallet contained twenty or twenty-five dollars. It is possible that the jury might not have been justified in finding that the murder was committed both to effect an escape and to disrupt or hinder a government function. These seem to be redundant findings.

Appellant’s counsel argues that through comparative review the death sentence should be reduced to life imprisonment without parole and we agree with this argument. In Collins v. State, 261 Ark. 223, 548 S.W. 2d 106 (1977), cert. den. 434 U.S. 878 (1977), we discussed this court’s responsibility in reviewing death penalty cases in relation to other death cases. We have done that in this case. In this case it would also be appropriate to compare the sentence that Ruth Sumlin received with the sentence imposed on Warren Sumlin because both were charged with, and convicted of, the same crime. We compare the death sentence in this case to all of those that have been imposed and reviewed since Collins v. State, id. We also consider the fact that error may have been committed during the sentencing phase. Using these criteria, we conclude that the death penalty in this case ought to be reduced to life without parole.

It is argued that the trial court committed error in forcing Ruth Sumlin to testify against her husband. Appellant claims that Ruth’s testimony was privileged. There is a privilege for conversations between a husband and wife which involve confidential communications that are not intended for disclosure to any other person. That privilege is contained in Rule 504, Uniform Rules of Evidence, and may be claimed by either spouse in a criminal proceeding. Warren Sumlin claimed the privilege in this case. The State argued below that because Ruth Sumlin had testified to the conversations in her trial, the so-called confidential communication requirement was breached. That is, Ruth had told a third party the conversations. At first the trial court seemed to agree with the State’s position. Later the court ruled that Ruth Sumlin could not testify as to any conversation which was confidential and was intended to remain so. During Ruth’s testimony the State attempted to impeach her by using testimony from Ruth’s trial and some of that testimony included conversations between Ruth and Sum-lin. For example, the State quoted some of Ruth Sumlin’s prior testimony in which she said she was supposed to get J. Y. Cooper’s car in any way that she could. This testimony no doubt could have been considered by the jury in determining whether Sumlin was an accomplice to the murder. However, we cannot say this conversation was confidential since one witness testified that he overheard this same conversation in jail.

Certainly a wife can be called as a witness against her husband and be required to testify concerning what she heard, saw, and observed in relation to a criminal charge. In Huckaby v. State, 262 Ark. 413, 557 S.W. 2d 875(1977), we so interpreted the husband-wife privilege, excluding only confidential conversations. The United States Supreme Court in Trammell v. United States, 445 U.S. 40 (1980), recognized our posture as being one that would not violate any constitutional right. We cannot say that any of Ruth Sumlin’s testimony breached the confidential privilege. The defense points to no part of her testimony which was confidential in the sense that a third party did not hear it. Sumlin and his wife talked through a jail window, the plan was common knowledge, and the only testimony Ruth gave at her former trial or during this trial that we conclude could be privileged was that conversation noted above. Consequently, we find no prejudicial error was committed.

Appellant argues that there was insufficient evidence to sustain the conviction. That is an argument with the facts. If there was substantial evidence that Sumlin was an accomplice to the murder of Cooper, then the judgment of the jury must stand. It is irrelevant that Warren Sumlin did not pull the trigger if he aided, solicited, or encouraged Ruth Sumlin in committing the murder. Ruth Sumlin was a person with no criminal background when she met and married Sumlin, who was in jail at the time. She was nine hours short of completion for a degree at a state college, and the evidence is overwhelming that Sumlin had some influence or control over her actions. There was one witness who testified that Warren Sumlin had used Ruth as a prostitute.

There is an objection that some jurors were excused for cause by the State in violation of the rule stated in Witherspoon v. Illinois, 391 U.S. 510 (1968). We have examined the testimony and could find no evidence that any juror was excused who should not have been. The court decided that if a juror would automatically vote against the death penalty that juror should be excused.

Appellant’s counsel argues that there was an error caused by the court reporter’s failure to record the entire voir dire proceedings. The record reflects that counsel for the appellant requested that only that part of the voir dire where an objection was made be recorded. We know of no precedent that says a voir dire has to be recorded in its entirety and in the absence of any specific evidence of prejudice this argument must fail.

Warren Sumlin filed a comprehensive and extensive pro se brief which he swears he prepared himself but which was undoubtedly prepared by an attorney or with the assistance of an attorney. In his pro se brief Warren Sumlin raises numerous arguments, many of which are related to the effectiveness of his counsel or to errors that were not raised at the trial level. We have reiterated time and again that the question of effectiveness of counsel may not be raised for the first time on appeal. Haynie v. State, 257 Ark. 542, 518 S.W. 2d 942 (1975 ). We do not consider even in a capital case these arguments which are made for the first time on appeal unless the issue is of such magnitude that it would require us to take note of an error which involved a fundamental deprivation of the right to a fair trial. Wicks v. State, 270 Ark. 781 (October 20, 1980). Sumlin argues that it was error for a gun and wallet taken from his wife’s purse to be admitted into evidence. We discussed these same items in the case of Sumlin v. State, 266 Ark. 709, 587 S.W. 2d 571 (1979) and concluded that those items were admissible in the trial against Mrs. Sumlin. They are admissible against Warren Sumlin for the same reason. Actually Warren Sumlin does not appear to have standing to raise that issue. See Koonce v. State, 269 Ark. 96, 598 S.W. 2d 741 (1980). Even so, Sumlin argues that the officers changed their stories after Ruth Sumlin’s trial and placed the wallet on him at the time of his arrest and not in her possession. There was no mention made of this inconsistency below and in any event it would not affect the admissibility of the wallet because it would have been seized incidental to his arrest.

Sumlin argues that it was error for a witness, Bill Gentry, to testify that Sumlin had acted as a procurer of sex for his wife. The State offered the testimony to show that Warren Sumlin had control over his wife’s actions and we agree that it was relevant to that extent since Sumlin was charged as an accomplice. Sumlin argues that his counsel was surprised by the testimony since he had not been furnished with Gentry’s name before trial. During the trial the prosecuting attorney informed both the court and Sumlin’s counsel that he intended to call Bill Gentry and what the substance of Gentry’s testimony would be. The court gave Sumlin’s counsel until the next day to talk to Gentry about Gentry’s testimony. There is no evidence at all that the prosecuting attorney knew of this witness’s existence until he informed the court. In view of that and the fact that Sumlin’s counsel was given an opportunity to talk to the witness, we find no prejudicial error.

Sumlin argues it was prejudicial to admit two pistols, gun registration certificates, and other documentary evidence. There is no merit to this objection. All of this was relevant and is admissible evidence.

It is again argued that the Arkansas death penalty statute is unconstitutional. We have ruled many times that it is constitutional.

An amicus curiae brief was filed by Lynn W. Holt of Berkley, California. Holt argues numerous errors relating to the effective assistance of counsel and other matters not raised below. He also argues for several reasons that Warren Sumlin should not have received the death penalty. Since these arguments have been disposed of or already discussed, we will not answer them.

In accordance with the requirement of Ark. Stat. Ann. § 43-2725 (Repl. 1977), we have reviewed all errors prejudicial to the rights of the defendant and find none that will require us to reverse the conviction.

Affirmed as modified.


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

text:
    Charles Joseph POE v. STATE of Arkansas
    CR 81-11
    617 S.W. 2d 361
    Supreme Court of Arkansas
    Opinion delivered June 22, 1981

      E. Alvin Schay, State Appellate Defender, by: Deborah Davies Cross, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Charles Joseph Poe appeals from a denial of Rule 37 relief. This relief must be denied for three reasons: Motion for a belated appeal must be filed within eighteen months of the date of commitment (Rules of Crim. Proc., Rule 36.9); a motion for Rule 37 relief must be filed within three years of the date of commitment (Rules of Crim. Proc., Rule 37.2 (c)); and, we cannot say that the judge was clearly wrong in his findings.

Poe was convicted of burglary and grand larceny in February, 1976, in the Faulkner County Circuit Court. His lawyer wrote to him at the penitentiary telling Poe of his right to appeal and enclosed a form for Poe to check and return if he wanted to appeal. When the lawyer did not hear from Poe, he called the penitentiary and talked to a warden who told him that Poe had received the letter. Poe denied that he ever received the letter.

In May, 1976, Poe filed a pro se petition for Rule 1 relief. On September 3, 1976, he was present in Faulkner Circuit Court on this petition. Poe’s petition was dismissed when he presented the following document which both he and his lawyer had signed:

I, Charles Joseph Poe, do desire to withdraw my previous request for a Rule 1 hearing in this case. I am making this request for withdrawal of my own free will and I do hereby state that I have not been subjected to any coercion or undue influence of any sort.

Thereafter Poe corresponded with regularity with the court through the clerk’s office. Eventually he learned that the transcript of his trial could not be produced because the court reporter had destroyed her notes. However, he did not file his petition for Rule 37 relief and for other relief until February, 1980.

On November 3, 1980, a Rule 37 hearing was held. The trial court examined the record and heard the testimony of Poe and his trial attorney. He concluded that Poe had knowingly waived his right to appeal. He also found no ineffectiveness on the part of Poe’s counsel and that the petition for Rule 37 relief had been filed beyond the three year limit.

We affirm. Poe suggests that his conviction was void and should be excepted from the three year rule. He states no grounds which would make that conviction void.

Affirmed.

Purtle and Hays, JJ., dissent.

John I. Purtle, Justice,

dissenting. In my opinion, the appellant has received a complete run-around at all stages of the proceedings in this matter. He has been denied a direct appeal or a belated appeal and he has been denied a Rule 37 hearing. In order to get the events in order I will set them out chronologically below:

12-30-75 Information filed
2-12-76 Tried and convicted
2-26-76 Notice of appeal filed
3-1-76 Attorney wrote appellant about appeal
5-7-76 Rule 1 Petition verified and mailed (Not filed until August 4, 1976)
6-10-76 Appellant wrote court requesting transcript and ruling on his Rule 1 Petition (Not filed until August 4, 1976)
8-4-76 Hearing set on Rule 1 for 8-20-76
8-9-76 Appellant’s attorney requested to be relieved
8-24-76 Amendment to Rule 1 Petition filed
9-3-76 Appellant moved to withdraw Rule 1 Petition
9-8-76 Letter from appellant to clerk
9-20-76 Letter from clerk to appellant stating the warrant was not filed in her office
1-26-78 Appellant requested status report on Rule 1 or 37
6-22-78 Appellant requested cost of transcript
8-20-78 Appellant wrote for commitment papers
12-26-78 Petition to obtain transcript at public expense
1-4-79 Letter from court to reporter re transcript
1-8-79 Reporter states record unavailable
3-14-79 State demands proof of indigency
7-5-79 Order for a hearing on July 9, 1979
2-11-80 Motion to reconstruct original transcript
11-3-80 Filed amendment to petition under Rule 37.1
11-3-80 Hearing on above petition was denied
12-5-80 Notice of appeal and designation of record

From the above-listed events it can easily be determined that the notice of appeal filed on February 26,1976, has never been acted upon. The attorney does not have a withdrawal authority in the record. Therefore, the appeal is technically still pending.

We have firmly established that the filing of a notice of appeal in apt time is not a prerequisite to jurisdiction by the supreme court in criminal cases. Goodwin v. State, 261 Ark. 926, 552 S.W. 2d 233 (1977). In the case of Harkness v. State, 264 Ark. 561, 572 S.W. 2d 835 (1978), we stated that when an attorney miscalculated the time for filing the appeal, it amounted to a denial of the appellant’s constitutional rights and would not be grounds for refusing a rule on the clerk.

Even though the trial judge may no longer have authority to accept an appeal or appoint counsel for an accused, because the time for appeal has run, there is still a remedy for the appellant. Rules of Criminal Procedure, Rule 36.9, provides, among other things, that the supreme court may act upon and decide a case in which notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit. This is true even though no request for belated appeal has been made. Finnie v. State, 265 Ark. 941, 582 S.W. 2d 19 (1979). TheFinnie case also sets out the requirements the attorney must follow in order to withdraw from a case after trial.

It is clear from the Rules of Criminal Procedure and from our case law that this court has the authority to grant the relief sought in this case. Therefore, I would grant a belated appeal since the initial notice of appeal was never acted upon and the appellant was in no position to follow through with it. In any event, it is quite clear that he withdrew his original Rule 1 Petition with the understanding that he was going to get a belated appeal and/or his attorney would file an amended petition. According to the testimony at the hearing on December 5, 1980, a Rule 37 Petition was filed in 1978,-This would, no doubt, account for the amendment to the Rule 37 Petition being filed on November 3, 1980. Any way I look at this case I find the appellant was denied due process of law.

Hays, J., concurs.


author: John I. Purtle, Justice.

text:
    W. D. WARD v. Angela WARD
    80-282
    617 S.W. 2d 364
    Supreme Court of Arkansas
    Opinion delivered June 22, 1981

      Ponder & Jarboe, for petitioner.

      Wilson & Grider, by: Bob Castleman, for respondent.
   John I. Purtle, Justice.

Petitioner was held in contempt for his willful and deliberate falure to pay child support as ordered by the Chancery Court of Lawrence County. On appeal petitioner insists that his failure to pay was not willful and deliberate; that the court should have held up the proceedings until the appellant had the services of an attorney; and that the punishment was excessive under the circumstances. We think the amount of the punishment was excessive under the circumstances but otherwise agree with the trial court.

Petitioner and respondent were separated July 15, 1976, and did not live together thereafter. However, at the divorce hearing on December 27, 1978, the proof was that respondent had a child on January 27, 1978. In other words, the parties had not lived together for about 18 months at the time the child was born. The chancellor held the petitioner was the father of the child because he did not prove inaccessibility. No appeal was filed from the divorce decree which was entered of record on January 10, 1979.

On August 7, 1980, respondent filed a petition asking that petitioner be cited for contempt of court for his failure to pay the $10 per week which he had been ordered to pay at the time of the divorce. On August 8, 1980, the court issued a citation directing the petitioner to appear and show cause. On September 10,1980, the petition to show cause was called on the court’s docket. At that time the petitioner appeared without counsel, and the chancellor explained the severity of the offense and possible consequences if found guilty. The chancellor, upon his own motion, continued the matter until October 8, 1980, in order that petitioner might consult with an attorney. On October 8, 1980, the petitioner again appeared at the hearing without counsel and attempted to represent himself. The result was not good. There is no need to set out the testimony to any great extent. It is well epitomized by the following questions and answers:

BY THE COURT: You stood there and you said you had no intention of paying it because —
BY MR. WARD: I don’t.
BY THE COURT: All right, do you desire to testify? Let me explain that to you. You cannot be forced to testify against yourself. You have the right to remain silent if you want. You may testify if you desire. To be quite candid with you, that means try and explain it fully to you. You have stood there and you have said you willfully didn’t pay it and you don’t intend to pay it.
BY MR. WARD: That’s correct.
BY THE COURT: Sir?
BY MR. WARD: That’s correct.

Petitioner further stated on examination by the court, “Even if you explained to me that I am going to jail if I don’t start paying I am not going to pay nothing. That’s not my kid.”

At the conclusion of the hearing on October 8, 1980, the petitioner was sentenced to six months in jail to commence immediately. He petitioned this court for certiorari which was granted. Petitioner obtained bail in the amount of $1500 and stayed the execution of the sentence on November 10, 1980. Therefore, he spent a little more than a month in jail before being released.

It is obvious that the refusal to pay the $10 per week was willful and intentional. However, the petitioner’s refusal to pay was apparently based upon his misunderstanding of the law and his insistence that he was not the father of the child for whom the support was being paid. However, no appeal having been taken from the divorce decree, the matter of the paternity of the child is final and the petitioner is the legal father. The petitioner did not speak contemptuously toward the court nor indicate a disrespect for the court or the proceedings. He merely insisted thát he was not the father of the child and did not intend to support it.

Although no attempt was made by either party to determine whether this was criminal or civil contempt, we are of the opinion that it was criminal contempt. We have held that the primary reason for punishment for criminal contempt of court is the necessity for maintaining the dignity, integrity, authority and respect toward the courts. Criminal contempt sanctions are also designed to have a deterring effect on others as well as the offender. Hickinbotham v. Williams, 228 Ark. 46, 305 S.W. 2d 841 (1957). Civil contempt proceedings are for the purpose of preserving and enforcing the rights of the private parties to the proceeding and to compel obedience to orders and decrees made for the benefit of the parties. Blackard, et al v. State, 217 Ark. 661, 232 S.W. 2d 977 (1950). The matter of proof between the two forms of contempt is considerable. A criminal contempt citation requires proof beyond a reasonable doubt. On the other hand, a degree of proof required in civil contempt is that the trial court did not act in an arbitrary manner or against the weight of the evidence. Dennison v. Mobley, 257 Ark. 216, 515 S.W. 2d 215 (1974).

In Dennison v. Mobley, supra, the grandparents of a child whose parents were divorced were held in contempt of court for helping their son take the child out of the jurisdiction of the court in violation of the decree. The grandparents were immediately placed in jail. The following day this court issued a stay and granted certiorari. Upon the hearing of the case on its merits, we stated:

Inasmuch as we are unanimously of the view that the order must be quashed, insofar as the alleged civil contempt is concerned, as clearly against the preponderance of the evidence, we will summarize the evidence only insofar as necessary to determine whether there was any substantial evidence to support the finding of criminal contempt. In doing this, we view it as we would in an ordinary criminal case, i.e., in the light most favorable to the court’s findings, drawing all inferences and resolving all conflicts against petitioners. ...

In Hickinbotham v. Williams, supra, the appellants were sentenced to a six-month term in jail. We also reduced the jail time which the appellants were ordered to serve.

The fact that the petitioner has been punished for criminal contempt in no way reflects on his responsibility or upon his exposure to civil contempt citation. However, in view of the fact that we hold he was found guilty of criminal contempt, we are of the opinion that the sentence was too severe. Therefore, it will be reduced to the time served. To that extent the decree will be modified; otherwise, it is affirmed.

Affirmed as modified.

Dudley,. J., not participating.


text:
    Gary Kenneth HENSON v. William L. MONEY and Betty Sue MONEY
    81-70
    617 S.W. 2d 367
    Supreme Court of Arkansas
    Opinion delivered June 22, 1981

      Barron, Coleman & Barket, PA., for appellant.

      David L. Stubbs, for appellees.
   John I. Purtle, Justice.

The Probate Court of Desha County approved the adoption of Gary Kenneth Henson, II, by William L. Money and his wife, Betty Sue Money, the natural mother of the adopted child. The natural father, Gary Kenneth Henson, appeals and argues that the trial court erred in granting the petition for adoption without his consent because the appellees did not establish by clear and convincing evidence that the appellant failed significantly to support the minor child without justifiable cause for a period of more than one year. We granted certiorari to the Court of Appeals after it affirmed the probate judge by a 3-3 vote. We cannot find that the Court of Appeals or the trial court committed reversible error.

The facts reveal that Gary Kenneth Henson, II, was born on May 19, 1970, to the marriage of Gary Kenneth Henson and Betty Sue Henson (Money). The parents of said minor were divorced in the District Court for Tulsa County, Oklahoma, on July 28, 1972. Custody was granted to the mother with reasonable rights of visitation granted to the father, and the father was ordered to pay $100 per month child support. In the early part of 1973 Betty Sue Henson (Money) moved to North Little Rock, Arkansas, and took the child with her. She married William L. Money on April 24, 1974.

The visitation rights of the father were seriously restricted when the mother took the child with her in her permanent move to Arkansas. In May of 1973 the appellant filed a motion in the Tulsa district court in which he sought reduction of child support and rearrangement of visitation rights. He was not successful in either effort. In fact, the court required appellant to pay medical expenses of the child in addition to the support he was already paying and to pay the support through the court registry.

Shortly after the hearing on the decree in the Tulsa district court the appellant moved to Houston, Texas. The record reveals that during the time the appellees claim the appellant failed to significantly support his minor child the appellant was earning in excess of $30,000 per year. By the time of the trial his annual earnings were in excess of $40,000. The appellant alleges the mother interfered with his attempts to visit the child and to talk with the child by telephone. The mother denies any interference on her part except one instance where visitation was refused when the natural father, appeared unannounced at the door of appel-lees’ home after the petition for adoption had been filed.

In April of 1979 the appellees filed a petition for the adoption of the minor child. The petition alleged that the appellant had paid 64 months out of 67 months prior to February 15, 1978. They alleged and proved that appellant made no payment between February 15, 1978, and February 8, 1979. This is obviously 51 weeks and one week short of a year. Subsequent to the appellees filing their petition for adoption the appellant has paid $1,900 during an 18-month period.

The broad issue in this case is whether it was necessary to have the father’s consent to the adoption. The consent of a parent is unnecessary when it is proven that the parent has failed significantly to support the minor child and that there is no justifiable cause for the failure to support for a period of at least one year. Ark. Stat. Ann. § 56-207(a)(2) (Supp. 1979). The narrow issues to be decided here are whether there was significant failure to support, and if so, whether the failure was justified. There is no question that prior to adoption of the Uniform Adoption Act (Acts 1977, No. 735) it was much more difficult to adopt a child than it is under the Uniform Act as adopted in 1977. We have interpreted the Uniform Adoption Act in two recent cases. The first case was Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979). In Harper we upheld the probate court in refusing to hold the natural father’s consent was unnecessary in the matter of the adoption of his minor child. There we held that the adopting parent, acting without the consent of a natural parent, bears the heavy burden of proving by clear and convincing evidence that the parent has failed significantly and without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree. The holding was that under the circumstances of the case, the father’s failure to significantly support was justified.

The next case which we considered at length under the new adoption act was that of Pender v. McKee, 266 Ark. 18, 582 S.W. 2d 929 (1979), where there had been some visitation and some support paid by the father. In Pender we affirmed the probate judge who granted the adoption without the consent of the father upon finding that the natural father did not have justification for his failure to support the child. In Pender we stated:

The question was whether the father has “failed significantly” for a period of one year to support his child “without a justifiable cause.” “Fails significantly” certainly does not mean “failed totally.” It only means that the failure to support must be significant as contrasted with an insignificant failure: It denotes a failure that is meaningful or important.

We also held that resumption of support payments, whether before or after a petition for adoption has been filed, will not act to “redeem” the delinquent parent and start a new one-year period under the statute.

In the present case it is undisputed that for a period of 51 weeks no support was paid by the natural father. There would seem to be no question that such support was not significant for a period of one year. The question then becomes whether his failure to support was justified. The trial court found that the failure was not justified. We review the case de novo but conform to Arkansas Rules of Civil Procedure, Rule 52, which requires a reversal only if the decision is clearly erroneous. From the record we are unable to state that the trial court was clearly in error. It appears that appellant simply refused to make the payments in order to get even with the appellees for interfering with his visitation rights. It would have been a fairly simple matter for the appellant to have gone into the district court in Tulsa for the purpose of compelling his ex-wife to abide by the terms of the decree. That he was not ignorant of judicial process is shown by his attempt, in 1973, to reduce his support payments and change his visitation. This is a case where it is clearly shown that two wrongs do not make a right. The duty to pay child support is independent of the duty of the custodial parent to allow visitation, as both may be enforced by the courts.

Considering the record in this case, we believe that the trial court held the appellees to their burden of proving by clear and convincing evidence that the appellant had failed significantly and without justifiable cause to support the child for a period of one year.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Andrew Dean DOWNEY and Reita F. DOWNEY v. Freddie L. MAY and R. Byron JONES d/b/a JONES MECHANICAL CONTRACTORS
    81-99
    619 S.W. 2d 614
    Supreme Court of Arkansas
    Opinion delivered June 22, 1981
    [Rehearing denied September 14, 1981.]

      Spencer, Spencer & Shepherd, P.A., for appellants.

      Robert J. Johnson, for appellee May.

      Shackleford, Shackleford & Phillips, P.A., for appellee Jones.
   Robert H. Dudley, Justice.

This is a tort suit involving injuries to appellant Andrew Downey which occurred during a $4,000,000 remodeling of the Georgia-Pacific Corporation’s particle board plant at Crossett. On September 15, 1975 appellee Freddie May was operating a crane which was located just outside a wall of the plant. The roof of the building had been removed. The boom of the crane reached over the top of the wall, and the lines extended down inside the building. Appellant Downey, a steelworker, was beside a 20-foot 1500-pound steel beam being lifted and placed horizontally into , the inside wall of the building at a height of approximately 40 feet. The crane operator, appel-lee Freddie May, could not see inside the building and was given directions from a signalman stationed on top of the wall. After positioning the beam, appellee May was given the signal to stop all movement of the lines on the crane. Appellant Downey and his co-worker had difficult in making the beam fit precisely into the wall. Downey climbed atop the beam and attempted to hammer it into place with an 8-pound sledgehammer. On the second blow the beam fell 2-1/2 to 3 feet, in turn causing appellant Downey to fall 40 feet to the concrete floor and suffer permanent disabling injuries. Appellants, Downey and his wife, contend that appellee May negligently released the tension on the crane lines which held the beam, causing both the beam and appellant to fall. They also claim that the negligence should be imputed to appellee Jones Mechanical Contractors.

The testimony of Don McLin, an experienced steelworker and appellant’s co-worker, was that there was no slack in the lines immediately prior to the accident. He explained that if no slack existed in the lines and the beam had become dislodged from the wall when appellant struck it with the sledgehammer it would have swung slowly outward over the floor rather than fall downward. He testified that the end of the beam upon which appellant was positioned should have risen as it was the shorter, or lighter, end if the lines had remained taut. He stated that slack alone caused the accident. On the issue of causation of slack in the line there is only one statement by the witness. It is quoted because it is critical to the decision in this case.

Q. How could you get slack in the line?
A. It could only be from the operator letting it down, or maybe some fault with the machine where a boom could leap down.

This alternative statement is the only evidence on causation and may be fairly summarized as stating that appellee May was negligent or else there was a malfunction of the machine. The trial judge, having no other evidence on causation, granted directed verdicts in favor of appellees.

Given this particular fact situation, our decision to affirm or reverse will depend entirely on the standard we use to test the sufficiency of evidence in the case of a directed verdict. We recognize that we have used differing standards in the past.

Clearly, it cannot be said that, given this particular set of facts, there was no evidence of negligence. The “no” evidence standard was mentioned as recently as 1978 when we said:

It is well recognized that upon a defendant’s motion for a directed verdict, at the close of plaintiffs case, the evidence, including all reasonable inferences thereto, must be viewed in the light most favorable to the plaintiff and will be granted only when there is no evidence tending to establish an issue in plaintiffs favor ... [Emphasis supplied.]

Texarkana Housing Authority v. Johnson Construction, 264 Ark. 523, 573 S.W. 2d 316 (1978).

In the past we also have used the “any” evidence standard, Williams v. St. Louis & San Francisco Railway Co., 103 Ark. 401, 147 S.W. 93 (1912) and the “slight” standard, Little Rock & Fort Smith Railroad Co. v. Perry, 37 Ark. 164 (1881).

In 1969 we recognized the confusion and sought to harmonize the cases with the following statement:

In testing the granting of a directed verdict the rule has been many times stated and ofttimes with a slight variation. A typical statement of the rule is found in Barrentine v. The Henry Wrape Co., 120 Ark. 206, 179 S.W. 328 (1915):
In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of the evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury.
We have no intention of deviating from the rule just stated; however, it has been some time since we have pointed up the meaning of the term “any evidence.” The term has long been recognized to mean “evidence legally sufficient to warrant a verdict.” Catlett v. St. Louis L.M. & S. Railway Co., 57 Ark. 461, 21 S.W. 1062 (1893). To be legally sufficient it must be substantial; and substantiality is a question of law. St. Louis S.W. Ry. Co. v. Braswell, 198 Ark. 143, 127 S.W. 2d 637 (1939).

Paul Hardeman, Inc. v. J. I. Hass Co., 246 Ark. 559, 439 S.W. 2d 281 (1969).

This is the more logical view. It will save litigants time and expense. It will give certainty to the law and it will promote justice. There has been no intent to deviate from it. It was clearly stated in Jackson v. McCuiston, 247 Ark. 862, 448 S.W. 2d 33 (1969).

In resolving the propriety of the directed verdict, we must of course take that view of the evidence most favorable to plaintiffs and see if there is any substantial evidence on which the jury could have based a finding of negligence. [Emphasis supplied.]

The evidence in this case, when viewed most favorably to the appellant, is not sufficient to allow the case to go to the jury because the jury would have to guess or speculate to arrive at a verdict. A jury cannot be permitted to decide a case on the basis of speculation. Bussell v. Missouri Pacific Railroad Co., 237 Ark. 812, 376 S.W. 2d 545 (1964). A jury should have sufficient evidence to weigh probabilities or assess credibility in making its decision. See T.I.M.E. Freight, Inc. v. McNew, 241 Ark. 1048, 411 S.W. 2d 500 (1967).

Affirmed.

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

John I. Purtle, Justice,

dissenting. I disagree with the result reached by the majority even if the facts set out in the opinion are the only ones to be considered. It is not pointed out in the opinion but two other witnesses testified substantially the same as witness McLin that the end of the beam fell 2-1/2 to 3 feet; also, that the only way it could fall was to have slack in the choke line. Returning to the statements of McLin, as quoted in the majority opinion, it is obvious that he felt that the crane operator slacked off on the line. All of the testimony indicates that the operator was not signaled to slack off on the line at any time until after the appellant had fallen. The most that can be said is that McLin’s answer is subject to either of two reasonable interpretations. It was either the fault of the crane operator in letting slack in the line or the fault of the machine in failing to hold the line steady. In Jackson v. McCuiston, 247 Ark. 862, 448 S.W. 2d 33 (1969), we stated:

If the evidence permits of more than one reasonable conclusion, that conclusion is for the jury and not the court.

I cannot agree with the majority that the question and answer quoted in the opinion is all the evidence which could be considered on behalf of the appellant.

If the trial court is upheld on the summary judgment in favor of Freddie May, certainly the Jones Mechanical Contractors would not be liable. Since I do not believe it was proper to direct a verdict in favor of the crane operator, it would be necessary to consider his employment status.

There is no dispute of the fact that the crane being used at the time of this occurrence was leased from Jones Mechanical Contractors. Neither is it disputed that the operators of the crane were obtained through Jones Mechanical. The engineer for Georgia Pacific testified that he called Jones and Jones did furnish the operators. He stated the operator on duty at the time of the occurrence was employed by Mr. Jones doing business as Jones Mechanical. He further testified that he reimbursed Jones for the salary of the crane operators every two weeks and that all of the crane operators, except the one on duty at the time of this incident, were terminated because they were not operating the crane safely. He stated he did not make that determination. This, of course, implies that Jones made the determination since Jones was their general employer and the one who paid them. It seems to me that the law is well stated in AMI 702 which reads:

An employee is acting within the scope of his employment if he is engaged in the transaction of business which has been assigned to him by his employer or if he is doing anything which may reasonably be said to have been contemplated as a part of his employment and is in furtherance of his principal’s interest, even though it was not expressly authorized and may have been specifically forbidden.

It is readily apparent that the crane operator was furthering the business of his employer while he was erecting the steel for the other parties. It seems to me that Restatement of Agency 2d, sec. 227, p. 501 correctly sums up the employment situation when it states:

In the absence of evidence to the contrary, there is an inference that the actor remains in his general employment so long as, by the service rendered and other, he is performing the business intrusted to him by the general employer.

I would reverse and remand because there is evidence of a substantial nature tending to show negligence by the crane operator and that his general employer retained control over him. Further, the evidence may well have been strengthened by the defense witnesses and proof.

Adkisson, C.J. and Hays, J., join in this dissent.


author: Richard B. Adkisson, Chief Justice.

text:
    DAN COWLING & ASSOCIATES, INC. and Dan COWLING, JR. v. THE BOARD OF EDUCATION OF CLINTON SCHOOL DISTRICT #1

    81-119
    618 S.W. 2d 158
    Supreme Court of Arkansas
    Opinion delivered June 29, 1981

      Wright, Lindsey & Jennings, for appellants.

      Givens & Buzbee, by: J. R. Buzbee, for appellee.

      Rose Law Firm, by: Phillip Carroll, amicus curiae.
   Richard B. Adkisson, Chief Justice.

After a trial by jury, judgment was entered in the amount of $17,500 against the appellants, Dan Cowling, Jr. and Dan Cowling & Associates, Inc., who had agreed to provide professional architectural services in connection with the construction of four school buildings for the appellee. Appellants argue on appeal that the evidence was insufficient as a matter of law to support the judgment and that the trial court erred in denying their motion for a directed verdict.

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. Tipton, 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).

The terms and conditions of the agreement between the parties are set out in a written contract, the pertinent parts of which are set out in the following paragraphs:

1.1.6 The Architect shall prepare ... Working Drawings and Specifications setting forth in detail the requirements for the construction of the entire project.
1.1.14 The Architect shall make periodic visits to the site to familiarize himself generally with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an architect, he shall endeavor to guard the Owner against defects and deficiencies in the Work of the Contractor. The Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. The Architect shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and he shall not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents. (Emphasis supplied)
1.1.16 ... The Architect shall make decisions on all claims of the Owner or Contractor relating to the execution and progress of the Work and on all other matters or questions related thereto. ...
1.1.17 The Architect shall have authority to reject Work which does not conform to the Contract Documents.

As indicated by paragraph 1.1.6 of the contract the appellants were required to set forth in detail the specifications for the construction of the building. The requirements for masonry work are set forth in the specifications at page 4-2, the pertinent paragraph of which provides:

4. WORKMANSHIP.

(a) Field stone building facing shall be laid uncoursed in random sizes with full joints of mortar, and back parged or slushed with waterproof mortar to obtain a solid masonry wall. Mortar joints shall be raked out 1'' to 1 1/2” deep from face to stone. (Emphasis supplied lines 2, 3, and 4)

These specifications called for either “parging” or “slushing” of the two stone walls of each building with waterproof mortar. “Parging” means smearing mortar on the surface of the rock as one would a plaster wall; “slushing” means pouring liquid mortar into the space behind the rock (between the exterior sheathing of the inner wall and the rock wall — in this case, a space shown but not labeled or dimensioned in the architect’s plans).

The general contractor, Story Construction Company of Clinton, completed construction of the buildings in 1975. The four interior wall surfaces of each of the four buildings consisted of a vinyl wall covering applied to gypsum board. Two of the exterior walls of each building had concrete sheathing exposed to the elements while the other two exterior walls were built with mortar and native stone by a Clinton stone mason, Elvis Irby, a subcontractor. During the end of the summer of 1977, the interior vinyl covering on the walls with stone exteriors began separating at the seams causing extensive damage which resulted in this suit.

There was substantial evidence that the peeling or delamination was caused by moisture resulting from faulty construction of the stone wall. The stone mason, Elvis Irby, readily admitted that the stones were laid up against the gypsum board’s outer sheathing with no space or waterproof mortar left between many of the stones and the sheathing. However, according to the individual appellant’s own testimony, the plans called for a space scaling to approximately 7/8" between the outer layer of gypsum and the interior side of the stone wall. Joe Taylor, an architect who inspected the project for appellants after the damage was reported, testified that there was slushing in some places and not in others, air space in some places and not in others, and that generally “nothing was properly done as far as the stone work was concerned.” Other evidence reveals that the architect made numerous trips to the construction site and that the contractor, Elmo Story, specifically showed him the “slushing,” and the impossibility of “parging” the area between the sheathing and the stone wall. The architect then approved the slushing method being employed although he testified that adequate waterproofing using this method could not be accomplished because the stones were laid against the gypsum board.

Therefore, in viewing this evidence in the light most favorable to the appellee, we conclude that the architect, by inspecting the rock wall and approving it in its obviously defective condition, furnished the jury more than substantial evidence from which to find that he breached his contractual duty to guard the owner against defects and deficiencies in the work of the contractor based upon his on-site observations. The trial court is affirmed in its denial of appellants’ motion for a directed verdict.


author: George Rose Smith, Justice.

text:
    Donald KING v. Merna W. GIBSON and Cecil L. GIBSON
    81-48
    620 S.W. 2d 257
    Supreme Court of Arkansas
    Opinion delivered June 29, 1981
    [Rehearing denied September 21, 1981.]

      Bradley & Coleman, by: Douglas Bradley, for appellant.

      Davis, Bassett, Cox & Wright, and Oscar Fendler, by: Tilman P. Wright, III, for appellees.
   George Rose Smith, Justice.

Nora Gibson wás Herman Gibson’s surviving widow at his death in 1976. She first went into the probate court and had her dower assigned as a life estate in a specified 195.07 acres out of the 585.21 acres her husband had owned. As the life tenant of the 195.07 acres she then filed this partition suit in the chancery court against the two remaindermen, her husband’s sons by an earlier marriage. The chancellor held that Mrs. Gibson had no right to partition, but on the first appeal we sustained her position. Gibson v. Gibson, 264 Ark. 418, 572 S.W. 2d 146 (1978). The chancellor misconstrued our opinion and again refused to allow partition, but we reversed his decree and directed that the widow’s right to partition be carried into effect. Gibson v. Gibson, 266 Ark. 622, 589 S.W. 2d 1 (1979).

Mrs. Gibson died on October 26, 1979, eighteen days after our opinion on the second appeal was delivered. In the following December the suit was revived in the trial court in the name of the appellant, Mrs. Gibson’s personal representative and sole heir. Later on, however, the trial court dismissed the suit on the ground that the life tenant’s interest in the land terminated with her death, and the action abated. This appeal is from that dismissal.

The trial court was right. A widow’s dower right, being a life estate, terminates upon her death, so that a pending action for possession of the land then abates. Mills v. Alexander, 206 Ark. 754, 177 S.W. 2d 406 (1944); see also Burrus v. Butt, 118 Ark. 335, 176 S.W. 308 (1915). The same principle must apply to a suit for partition, which also looks to the future. When the life tenant dies, the remainderman becomes the owner in fee; there is no longer any shared estate to be partitioned.

The appellant argues, however, that when Mrs. Gibson filed suit for partition, there was an irrevocable election of remedies that somehow created a vested right to partition that passed on her death to her heir. We do not see that the doctrine of election of remedies is pertinent to this case. As life tenant Mrs. Gibson was entitled to possession of the 195.07 acres until it was actually divided or sold. The record on the second appeal indicates that she rented the land for $12,000 in 1978 and for $13,000 in 1979. The pendency of the partition suit had no effect upon her rights as life tenant until the land was divided or sold, which never happened. If an opportunity had been presented for her to execute a highly favorable lease for 1980, we see no reason why she could not have dismissed her suit for partition and continued to rent the land. Thus the mere filing of a partition suit did not create any vested right in the life tenant. We do not find it necessary to discuss the appellant’s other arguments for reversal.

Affirmed.