author: Tom Glaze, Justice.

text:
    Kay HARVILL v. COMMUNITY METHODIST HOSPITAL ASSOCIATION d/b/a Arkansas Methodist Hospital; St. Paul Fire and Marine Casualty Co., Inc., and John Doe II
    89-300
    786 S.W.2d 577
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      Stewart K. Lambert, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Tom Glaze, Justice.

On December 18,1983, the appellant, a nurse, was discharged from her employment by the Arkansas Methodist Hospital. Nearly three years later, she filed suit alleging breach of contract and tort of outrage. On January 2, 1987, the Hospital moved to dismiss appellant’s suit alleging it was a non-profit institution and immune from tort liability under Ark. Code Ann. § 23-79-210 (1987). Appellant responded stating that “if the Hospital is a charitable institution and insured,” then she would “amend her tort action to name the (Hospital’s) insurer as a party.” Appellant, in her pretrial discovery, promptly asked the Hospital if it was a non-profit corporation and insured. The Hospital subsequently answered that it had been a non-profit institution since 1949 and was insured by St. Paul Fire and Marine Casualty Co. (St. Paul).

The Hospital moved for partial summary judgment based upon appellant’s contract cause of action, and the trial court granted the Hospital’s motion, finding no contract existed between the appellant and the Hospital and therefore no breach occurred. Appellant appealed that ruling to the Arkansas Court of Appeals which, by non-published opinion dated September 28, 1988, affirmed the lower court.

After remand, and on January 18, 1989, the appellant amended its original complaint, readopting its pleadings, but directed them against St. Paul. St. Paul, contending the amended action against it was barred by the statute of limitations, moved to dismiss the appellant’s complaint. The trial court granted St. Paul’s motion, and appellant files this appeal, raising one issue, viz., the trial court erred by failing to allow her amended complaint against St. Paul to relate back to the date of the original complaint she previously filed against the Hospital. Appellant argues this “relation back” should have been allowed under ARCP Rule 15(c), and if the trial court had done so, the action against St. Paul would have been timely. We affirm the trial court’s holding.

Our focus turns on the language contained in Rule 15(c) which provides as follows:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

The purpose of Rule 15(c) is to avoid dismissals on technical grounds where the new defendant received notice of the litigation before the statute of limitations expired. See Newbern, Rule 15(c) of the Federal and Arkansas Rules of Civil Procedure: Amending Pleadings after the Statute of Limitations Has Run, 1984 Ark. L. Notes 5. We have held that Rule 15 vests broad discretion in the trial court to permit amendment to pleadings and the exercise of that discretion by the trial court will be sustained unless it is manifestly abused. See Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983).

The Supreme Court has interpreted FRCP Rule 15 (c), which in relevant part, is identical to our Rule 15, and that Court has stated that relation back is dependent upon the following four factors: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. Schiavone v. Fortune, 477 U.S. 21 (1986).

In the present case, the appellant’s amended claim filed against St. Paul basically involves the same conduct which she originally set out in her complaint against the hospital. In addition, our review of the record reflects that St. Paul had received notice of appellant’s claim within the prescribed limitations period and it would have not been prejudiced in maintaining its defense. Our main concern is whether St. Paul knew or should have known, but for a mistake concerning identity, the appellant would have originally initiated her suit against it rather than the hospital.

The question we must decide narrows to what is meant by “mistake concerning identity.” Courts have interpreted this same language in the federal rule as meaning different things. In the case of Williams v. Avis Transport of Canada, Ltd., 57 F.R.D. 53 (1972), the court offered the broadest definition of mistake and represents one end of the spectrum of cases.

There, the plaintiff sued Avis in 1971 for an accident which occurred in 1970. The cause of action alleged that Avis had negligently permitted the car to be equipped with faulty tires. The plaintiff later attempted to amend the complaint to add Chrysler and Goodyear Tire Company. The amendment adding Goodyear Tire Company was allowed because within two years of the alleged accident, Avis had written Goodyear and advised it about the claim of defect in its tires. In allowing the amendment, the Nevada District Court stated broadly that a mistake exists whenever a party who may be liable for the actionable conduct alleged in the complaint was omitted as a party defendant.

At the opposite end of the spectrum, we find the case of Rogatz v. Hospital General San Carlos, Inc., 89 F.R.D. 298 (1980). In Rogatz, the court construed Rule 15(c) to allow mistake to mean only to correct errors in the identification of defendants. There, an accident occurred on August 14,1978, and the original complaint was filed against the hospital on July 5, 1979, within the one-year statute of limitations. On August 23, 1979, the plaintiff filed an amended complaint which added the insurance company as a co-defendant. The Puerto Rico District Court did not allow the amendment, stating that Rule 15(c) was envisioned to correct the misnomers of the defendant. The court held that there was no mistake where if the plaintiff had exercised due diligence he could have readily obtained information as to the identity of the additional party within the limitation period.

There are other cases which seem to fall within the two extremes represented by the holdings in Williams and Rogatz. For example, the Seventh Circuit Court of Appeals refused to adopt the expansive view of Williams. In Norton v. International Harvester Co., 627 F.2d 18 (7th Cir. 1980), the plaintiff brought a wrongful death action against International Harvester, alleging that a defective part had caused her husband’s death. After the statute of limitations had run, the plaintiff amended the complaint to add the manufacturer of the defective part. While the court determined that the manufacturer did not have proper notice, the court also stated that Rule 15 permits an amendment to relate back only when there has been an error made concerning the identity of the proper party and whether that party is chargeable with knowledge of the mistake. In another federal circuit, the Ninth Circuit Court of Appeals held that Rule 15(c) was never intended to assist a plaintiff who ignores or fails to respond in a reasonable fashion to notice of a potential party. Nor was it intended to permit a plaintiff to engage in piecemeal litigation. Kilkenny v. Arco Marine, Inc., 800 F.2d 853 (9th Cir. 1986).

The Eighth Circuit Court of Appeals also has had the opportunity to address the meaning of “mistake” in Rule 15(c). In Russ v. Ratliff, 578 F.2d 221 (8th Cir. 1978), the plaintiff brought a civil rights action which arose from her husband having been shot and killed by a police officer. The plaintiff named numerous defendants, including police officers, the mayor and city council. After the case was tried on the merits and appealed and plaintiff was left with but one judgment-proof defendant, the plaintiff amended the complaint to add the city. While the court found that the city would have notice since its mayor and city council were sued, it did not find that the city would not be prejudiced. Further, and more importantly to the issue before us now, the court in Russ held that the plaintiffs failure to name the city was not due to any mistake in identity of the proper party to be sued. The court held that the plaintiffs attorneys chose as defendants persons whom they thought to be, and who were, proper parties.

The Eighth Circuit Court of Appeals has also discussed mistake in its Rule 15(c) context in the case of Trace X Chemical v. Gulf Oil Chemical Co., 724 F.2d 68 (8th Cir. 1983). In 1978, Trace X brought an action against Gulf alleging that Gulf had breached various express and implied warranties in its sale of TNT to Trace X. Within the four year statute of limitations, Gulf notified CIL, Gulfs supplier of TNT, of the pending litigation and requested CIL to defend. In 1981, after the statute of limitations had expired, Trace X discovered that CIL had sold it the defective TNT rather than.Gulf. A billing error by CIL apparently contributed to Trace X having filed its original suit against Gulf. After discovering its mistake, Trace X amended its complaint to name CIL as defendant. CIL argued that the amendment should not be allowed to relate back, because Trace X made no mistake concerning identity but had instead made a tactical decision to bring suit against Gulf.

In affirming the lower court’s allowance of Trace X’s amendment, the Eighth Circuit Court concluded that Gulf was obviously not the proper party to take responsibility for the defective TNT and that CIL should have discovered its billing error and when Gulf sent its notice to CIL of Trace X’s suit, CIL should have realized that Trace X had sued the wrong party. The Eighth Circuit held that it could not find as a matter of law that the district court was wrong in classifying Trace X’s acts as a “mistake concerning the identity of the proper party” under Rule 15(c).

We believe the rationale used by the Eighth Circuit in Russ and Trace X is sound, and we apply it to the facts in the present case. In doing so, we first look to the findings made by the trial court below when it decided that the appellant could not amend its complaint to include St. Paul as a party. The trial court pointed out that the appellant initially filed its tort of outrage and wrongful discharge claims against the hospital, but, for whatever reason, she elected not to pursue her tort of outrage claim. In this connection, the trial court noted that the appellant ignored her tort claim and pursued her contract action in lower court and on appeal to the court of appeals. After losing her wrongful discharge claim, appellant then elected to pursue her tort action against St. Paul — some six years after her discharge in 1983. Appellant certainly knew of St. Paul’s existence after she filed suit against the Hospital, but she gave no explanation as to why she did not pursue both her contract and tort claim after she initially filed them. The trial court noted the legal difficulty in proving the claim of tort of outrage and concluded, based upon the circumstances of the case, the court believed the appellant made a conscious and deliberate strategical decision that she would not pursue her tort claim and that her decision not to do so was not caused by a mistake in identity. In reviewing the trial court’s findings, we are unable to say the trial court erred as a matter of law.

Finally, the appellant also attempts to argue alternatively that, because she filed a John Doe pleading authorized under Ark. Code Ann. § 16-56-125 (1987), she should be able to substitute St. Paul as the John Doe pled in her original complaint. John Doe pleadings are for actions against a tortfeasor whose identity is unknown. John Doe pleadings, however, are of no assistance to the appellant because before a real party can be substituted for a “Doe” defendant in the original complaint, such pleadings must still meet the requirements of Rule 15(c). See Williams, 57 F.R.D. 53.

We also note that appellant seems to suggest that her cause of action against the Hospital’s insurance company under Ark. Code Ann. § 23-79-210 (1987) should not have to be within the statute of limitations. While that section allows for a direct action against the insurance company, there is no indication that such an action is not subject to the statute of limitations. This same argument was raised and rejected in Rogartz, 89 F.R.D. 298.

For the reasons given above, we affirm.

       This appears to have involved an interlocutory appeal under ARCP Rule 54(b), but nothing in the record reflects how the trial court and court of appeals treated this procedural issue.

       Although the trial court found it was doubtful St. Paul had actual notice of appellant’s suit until after the statute of limitations had run, St. Paul, in its answer to appellant’s requests for admissions, conceded it was aware of the lawsuit filed against the Hospital because St. Paul insured the Hospital and was defending it.

       This suit actually involved not only the deceased’s widow, but also his minor children as well. For convenience, we refer only to the widow as plaintiff.


source: Caselaw Access Project

license: Public Domain

text:
    Clyde W. LAWSON v. R.P. EDMONDSON
    89-340
    786 S.W.2d 823
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      Wilson, Engstrom, Corum & Dudley, by: Timothy O. Dudley, for appellant.

      David H. McCormick, for appellee.
   Tom Glaze, Justice.

The sole issue in this appeal is whether the trial court erred in denying the appellant’s motion to set aside the default judgment. Appellant argues that appellee failed to make timely service of process. We agree and therefore reverse and dismiss.

While the procedural history of this case is lengthy, only the following factual information is necessary for disposition of the issue. On October 23,1986, appellee filed a complaint against the appellant for breach of a lease agreement. The appellee sent a copy of the complaint and summons by certified mail to the appellant at an address in Danville, Arkansas, on January 29, 1987. The letter was returned marked “unclaimed” with a forwarding address noted in Loveland, Colorado. On March 4, 1987, the appellee mailed a copy of the complaint and summons to the Colorado address. The trial court sent a letter dated March 20,1987, to the appellee’s attorney stating that a non-est return had been made by the sheriffs department and that the case would be dismissed without prejudice for lack of prosecution if no response to the court’s letter was made within sixty (60) days. Meanwhile, on March 27, 1987, attorney Terry Sullivan filed a Rule 12 motion, on behalf of the appellant, challenging among other things the sufficiency of service of process. The record does not reflect that the trial court ever ruled on this motion.

Two new summonses were issued and mailed certified mail to the appellant at Colorado addresses on May 18 and June 18, 1987. Both of these summons were returned, one was marked “unclaimed” and the other “refused.” A forwarding address was indicated in Sand Springs, Oklahoma. On June 23,1987, the trial court entered an order of dismissal without prejudice. After that order and without refiling his complaint, the appellee continued to attempt to serve process on the appellant by sending a copy of the summons and the complaint to the Oklahoma address.

Then, the appellee filed a motion to set aside the trial court’s order of dismissal. In that motion, the appellee argued that the appellant, in his Rule 12 motion, indicated that service had been obtained on him. Further, the appellee contended that the motion constituted a limited appearance on behalf of the appellant. The trial court granted the appellee’s motion to set aside his order of dismissal. On July 20, 1988, the trial court entered default judgment against the appellant.

In considering the appellant’s argument that the default judgment should be set aside, we must first decide whether the appellee properly served a copy of the complaint and summons upon the appellant, an out of state defendant. Under ARCP Rule 4(e)(3), service, when reasonably calculated to give actual notice, may be made by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or the agent of the addressee. When service is made by mail, Rule 4(g) provides that proof of service is made by attaching to the affidavit a return receipt, envelope, affidavit or other writing required by Rule 4(d)(8). Rule 4(d)(8) (A) states that service by mail shall not be the basis for the entry of default judgment unless the record contains a return receipt signed by the addressee or the agent of the addressee or a returned envelope, postal document, or affidavit by a postal employee reciting or showing refusal of process by the addressee. In addition, service of process must be made within 120 days after the filing of the complaint unless there is a motion to extend. ARCP Rule 4(i).

Here, the appellee argues that the above requirements for service of process were met when the letter sent by certified mail on January 29, 1987, was returned marked “unclaimed.” We disagree. This court has recently held that a mailing of a complaint and summons returned marked “unclaimed” does not meet the requirements of showing refusal of process under Rule 4(d)(8)(A). Meeks v. Stevens, 301 Ark. 464, 785 S.W.2d 18 (1990). In so holding, we stated that a failure to present claimed notices at the post office does not reach the level of affirmative action suggested by the definition of “refused.” Id.

Since the January mailing of the service of process did not meet the requirements of Rule 4 and all other attempted services by mail occurred after the 120 day deadline, the appellee failed to make timely service of summons upon the appellant. Pursuant to Rule 4(i), if service is not made within 120 days of filing the complaint and no motion to extend is made, it is mandatory for the trial court to dismiss the action without prejudice upon motion or upon the court’s own initiative. See Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990).

Further, contrary to what the appellee argues, the appellant did not waive this 120 day service requirement by making a Rule 12 motion or by allegedly failing to pursue that motion. Under ARCP Rule 12(b), the defense of insufficiency of service of process shall be asserted in the responsive pleading or at the option of the pleader it may be made by motion. The defense of insufficiency of service of process is waived if it is neither made by motion under this rule nor included in the original responsive pleading. ARCP Rule 12(h)(1)(B). While the appellant attempts to argue alternatively that Terry Sullivan was not retained as his attorney, the record is clear that on March 27, 1987, Sullivan made a Rule 12 motion on behalf of the appellant arguing among other things insufficiency of service of process. Therefore, the appellant properly raised the defense of insufficient service of process.

While the trial court properly dismissed the action without prejudice on June 23,1987, it later set aside this dismissal upon motion by the appellee and issued a default judgment against the appellant. We hold that the actions taken by the trial court after June 23,1987, were in error. The appellee argues that the default judgment should not be set aside, because the appellant has failed to meet the requirements necessary for setting aside a judgment after ninety (90) days under ARCP Rule 60. We have stated that Rule 60 applies when the moving party attacks the service of process, presents evidence of a meritorious defense and seeks to have a trial. Green v. Yarbrough, 299 Ark. 175, 771 S.W.2d 760 (1989).

Here, the default judgment was rendered without valid service of process. We have held that judgments by default rendered without valid service are judgments rendered without jurisdiction and are therefore void. See Tucker v. Johnson, 275 Ark. 61, 628 S.W.2d 281 (1982). In cases where judgments are void, no proof of a meritorious defense is necessary to set aside the judgment. Wilburn v. Keenan Cos., 298 Ark. 461, 768 S.W.2d 531 (1989). Because the default judgment is void, the appellant did not have to meet the requirements of Rule 60 to set it aside. Thus, the trial court erred in not setting aside the default judgment. In addition, the appellee’s action must be dismissed without prejudice pursuant to Rule 4(i).

For the reasons stated above, we reverse and dismiss.

       We note that the appellee admitted below that a summons in this case was not served within 120 days from the date of filing the action; however, since this issue is decided against the appellee we will ignore this admission and decide the issue on its merits.


author: Otis H. Turner, Justice.

text:
    Steele HOLT v. CITY OF MAUMELLE, et al.
    89-254
    786 S.W.2d 581
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      John Wesley Hall, Jr., P.C., by: Sam T. Heuer, for appellants.

      Hilburn, Calhoon, Harper, Pruniski & Calhoun, Ltd., by: Greg Stephens, for appellees.
   Otis H. Turner, Justice.

This appeal is brought by the plaintiff class from a decision of the Pulaski County Chancery Court granting the appellees’ motion to dismiss and upholding an initiated ordinance approved by a majority of the voters of the City of Maumelle. The ordinance provides for a “service charge for police and fire protection and street lighting.”

The ordinance provides for a monthly charge of fourteen dollars for “houses and other similar dwelling structures”; twelve dollars per month for “condominiums and apartments”; and variable charges for commercial establishments and industries based upon a stated formula. (There is no representative member of the class or representative of commercial establishments and industries; the ordinance sections applicable to the businesses and industries are not at issue here.)

The parties stipulate that the charges levied by Maumelle under the provisions of the ordinance are “taxes” and not “fees”; that if the tax is a property tax, the millage rate is at a maximum of five mills; and that the tax was approved by the voters of Maumelle.

For reversal, the appellants argue first that the tax levied by the ordinance is an illegal exaction because the tax is not authorized by any delegated power of taxation. They also contend that the method of taxation is flawed and violates the statutory mandate as it has no relation to the value of the property being taxed or the benefits the property owner will derive from the purpose of the tax. The second point argued for reversal is that the tax violates the Fourteenth Amendment’s equal protection clause. We disagree on both points and affirm the decision of the trial court.

The key issue in this case is whether the taxes levied by the city are “property taxes” within the meaning of Article 12, Section 4, of the Arkansas Constitution and therefore subject to the limitations of that provision, or on the other hand, whether the tax is a tax “not otherwise prohibited by law” within the meaning of Act 942 of 1977, Section 3, Ark. Code Ann. § 26-73-103(a) (1987).

Article 12, Section 4 of the Arkansas Constitution provides:

No municipal corporation shall be authorized to . . . levy any tax on real or personal property to a greater extent, in one year, than five mills on the dollar of the assessed value of the same.

If the tax is a real or personal property tax within the meaning of Article 12, Section 4, then Article 16, Section 5, provides that all real and personal property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform.

In 1883, the legislature enacted a measure designated as Act 114. The sections of that Act applicable to the issues here are codified at Ark. Code Ann. §§ 26-25-102 and 103 (1987).

Section 102 provides that the amount of taxes which may be levied for general purposes in any one year by any city may equal but not exceed the five mills as provided in the Arkansas Constitution, Article 12, Section 4. Arkansas Code Annotated § 103 then provides that all levies of taxes in cities shall be upon the appraisement of the county assessor, as equalized, and placed upon the tax book by the county clerk, and collected in the same manner and by the same person who collects county taxes. It is clear that Act 114 tracks Article 12 of the Arkansas Constitution.

The basic rule of statutory construction, to which all other interpretative guides are really subordinate, is to give effect to the intent of the legislature. Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980). The legislative intent is derived not only from the context of the statutory language but also from the entire act from which the statute originated. Hot Springs School Dist. No. 6 v. Wells, 281 Ark. 303, 663 S.W.2d 733 (1984); Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979).

When reading the applicable provisions of Act 114 of 1883 in conjunction with Article 12 of the Constitution, it is abundantly clear that both enactments have reference to taxes on property, especially since Ark. Code Ann. § 26-25-102 refers not only to Article 12, but also to taxes levied for general purposes. Further, in 1883, the only taxes of consequence were taxes on property, and the provisions of Act 114 should be construed keeping in mind the historical context and the taxing alternatives and conditions existing at the time of enactment. See White v. Thornbrough, 229 Ark. 96, 313 S.W.2d 384 (1958).

If, as the appellees contend, the levy by Maumelle is not a tax on property, is there statutory or constitutional authority for the tax?

Arkansas Code Annotated § 26-73-103(a) provides that, in addition to all other authority to levy taxes provided by law, any municipality may levy any tax not otherwise prohibited by law. However, no ordinance levying any other tax shall be valid until adopted at a special or general election by the qualified electors of the city.

Thus, if the tax is not a property tax levied for general purposes and subject to the limitations of Article 12 and Act 114 of 1883, the tax was one “not otherwise prohibited by law” and was approved by a vote of the citizens of Maumelle as required by the statute.

We conclude that the tax in question is not a property tax within the meaning of Article 12 or of Act 114. We construe the ordinance as one placing the tax on the “resident” or “occupant” of the property as opposed to a tax on the “residence” or upon the “real property.” This conclusion is supported by the following facts: if the property is not occupied no tax is assessed; owners of undeveloped real property are not taxed; the apartment occupier, as opposed to the apartment owner, is taxed; the ordinance does not give rise to any lien on the “property” in the event of non-payment of the assessment.

As a second point for reversal, the appellants contend that the ordinance violates the equal protection clause of the Fourteenth Amendment of the United States Constitution. The appellant’s hypothesis that the owner or occupier of a more valuable home receives more police protection or fire protection or street lighting is unsupported by any evidence. It rests entirely upon speculation rather than reliable forms of proof.

It is well-established that a strong presumption of validity attaches to legislation enacted by the General Assembly; this principle holds for tax statutes as well as any other variety of legislation. See Dicks v. Naff, 255 Ark. 357, 500 S.W.2d 350 (1973). In City of Mountain Home v. Drake, 281 Ark. 336, 663 S.W.2d 738 (1984), where an ordinance which imposed an occupation tax was upheld, this court quoted with approval language from Madden v. Kentucky, 309 U.S. 83 (1940):

. . . [T]he presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. . . . [T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.

The record in the present case contains only the appellants’ assertions of the tax’s unequal impact — there was no explicit demonstration that the taxing method proved oppressively discriminatory. No disputed question of material fact existed apart from these unsubstantiated (and therefore immaterial) allegations. Hence, the trial court properly granted the appellees’ motion to dismiss.

Affirmed.

Holt, C.J., not participating.


author: Dale Price, Justice.

text:
    Gary TARENTINO v. STATE of Arkansas
    CR 89-225
    786 S.W.2d 584
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      Val P. Price, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

Appellant was convicted of battery in the first degree. He contends that there was insufficient evidence to convict him because the state failed to prove the requisite mental state and further failed to prove that serious physical injury occurred to the victim. Finding no error we affirm.

On May 29,1989, at 3 a.m., appellant Tarentino went to the house of Terry Cason. His admitted purpose in going to Cason’s house was to “beat him up” because Cason had allegedly been harassing Tarentino and his wife. He had originally planned to beat Cason with his fists and had even worn leather gloves for the purpose of inflicting a more painful blow. When he entered Cason’s house, he found him asleep on the couch. Spying a baseball bat, he picked it up and hit Cason in the head with it. When Cason tried to crawl away, Tarentino hit him in the head two more times and then left the house.

Cason sought medical attention the next day. He testified that, as a result of the beating, he suffered a fractured skull, spent 13'/2 days in the hospital and incurred medical bills of $8,000. Cason remained under a doctor’s care until July 1989.

In addition to testimony, the state offered several photographs into evidence which graphically depicted Cason’s head wounds. Photographs of the crime scene were also offered. These photos indicated a large amount of blood was lost by Cason as a result of the beating.

Tarentino claims that his motion for a directed verdict should have been granted because the state’s proof failed in two respects: (1) there was no evidence that it was his purpose to cause serious physical injury to his victim, and (2) he did not actually cause serious physical injury as defined by statute.

A directed verdict motion is a challenge to the sufficiency of the evidence. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). We affirm the trial court’s denial of a directed verdict if there is substantial evidence to support the conviction. Substantial evidence is evidence of a sufficient force that it will compel a conclusion one way or another, inducing the mind to pass beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). We review the evidence in the light most favorable to the appellee, considering only the testimony which tends to support a guilty verdict. Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989). Circumstantial evidence may constitute substantial evidence. Hill v. State, 299 Ark. 327, 773 S.W.2d 424 (1989).

There are four sets of circumstances in which a person may commit first degree battery. See Ark. Code Ann. § 5-13-201(a) (Supp. 1989). The three circumstances which could be relevant in this case are:

(1) With the purpose of causing serious physical injury to another person he causes serious physical injury to any person by means of a deadly weapon; or
(2) With the purpose of seriously and permanently disfiguring another person or of destroying, amputating or permanently disabling a member or organ of his body, he causes such an injury to any person; or
(3) He causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.

The main way in which first degree battery differs from second and third degree battery is the state of mind of the actor. To be convicted of first degree battery, a defendant must act with the purpose of causing serious physical injury to another person.

A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or cause such a result. Ark. Code Ann. § 5-2-202( 1) (1987). A person’s state of mind at the time of a crime is seldom apparent. One’s intent or purpose, being a state of mind, can seldom be positively known to others, so it ordinarily cannot be shown by facts and circumstances shown in evidence. Chaviers v. State, 267 Ark. 6,588 S.W.2d 434 (1979). Since intent cannot be proven by direct evidence, members of the jury are allowed to draw upon their own common knowledge and experience to infer it from the circumstances. Robinson v. State, 293 Ark. 243, 737 S.W.2d 153 (1987); Johnson v. State, 276 Ark. 56, 632 S.W.2d 416 (1982). Because of the difficulty in ascertaining a person’s intent, a presumption exists that a person intends the natural and probable consequences of his acts. Jackson v. State, 290 Ark. 160, 717 S.W.2d 801 (1986)

The gist of Tarentino’s argument is that, while he meant to hurt Cason, he did not mean to inflict serious physical injury on him. He points to the fact that he did not take the baseball bat with him but used it only after he discovered it at Cason’s house. We find there was substantial evidence from which the jury could have found that Tarentino did intend to cause serious physical injury.

It makes little difference that Tarentino did not take the bat with him to Cason’s house. He could have formed the requisite intent after he arrived at the house. Purpose to commit a crime can be formed in an instant. Robinson v. State, supra. Also, a person intends the natural and probable consequences of his acts. If one hits a sleeping man in the head three times with a baseball bat, a natural and probable consequence of that act is serious physical injury.

There is ample evidence from which the jury, using its common sense, could have inferred that Tarentino intended to cause serious physical injury: the fact that Cason was struck three times, the severity of the blows as evidenced by the photographs, the fact that the blows were delivered to the head, and Tarentino’s obvious anger. The judge properly refused to direct a verdict on this issue.

Tarentino’s argument that Cason did not suffer serious physical injury must also fail. Serious physical injury is defined as physical injury that creates a substantial risk of death or that cause protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark. Code Ann. § 5-1-102(19) (1987). In contrast, ordinary physical injury means impairment of physical condition or the infliction of substantial pain. Ark. Code Ann. § 5-1-102(14) (1987).

A serious physical injury was found to have occurred in Henderson v. State, 291 Ark. 138,722 S.W.2d 842 (1987), where the victim was shot in the right knee and once in the left foot. She was hospitalized for one day and night and missed one month of work. Serious physical injury was also found in Lum v. State, 281 Ark. 495, 665 S.W.2d 265 (1984), where the appellant struck the victim three times with his fist. The victim suffered three fractures in her face, had impaired vision, and suffered a loss of feeling in part of her face. In Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976), serious physical injury was found when the victim suffered a broken leg, fractured toe, and a bruised heel and pelvis, was hospitalized for a month and was still on crutches at the time of the trial.

The court of appeals addressed the issue of serious physical injury in Cook v. State, 2 Ark. App. 278, 621 S.W.2d 224 (1981), where a scuffle occurred among a number of “friends.” The court found serious physical injury when one man suffered a ten inch cut from the navel to the hipbone.

The injuries suffered by the victim in this case were at least as serious, if not more serious, than those suffered by the victims in these cases.

Viewing the evidence in the light most favorable to the state, there was substantial evidence from which the jury could have found that Taren tino acted with the purpose of causing serious physical injury and that such injury was in fact suffered by the victim.

Affirmed.


author:
Robert T. Dawson, Special Chief Justice.
      Tom Glaze, Justice,

text:
    J. Shelby DUNCAN, M.D. v. The Honorable John W. COLE, Circuit Judge, Saline County Circuit Court
    89-233
    786 S.W.2d 587
    Supreme Court of Arkansas
    Opinion delivered April 2, 1990

      Friday, Eldredge & Clark, by: Laura A. Hensley, C. Tab Turner, and Guy Alton Wade, for petitioner.

      Hamilton & Hicks, by: Charles R. Hicks and George R. Wise, Jr., for respondent.

      Wright, Lindsey & Jennings, by: James M. Moody, for amicus curiae Arkansas Defense Association.

      Henry C. Kins low, for amicus curiae Arkansas Trial Lawyers’ Association.

      William R. Wilson, Jr., for amicus curiae McMath Firm; Mays & Crutcher; Blair & Stroud; Wilson, Engstrom, Corum & Dudley; Perroni, Rauls & Looney; and Barron & Barron, P.A.
   Robert T. Dawson, Special Chief Justice.

The petitioner is the defendant in a medical malpractice action pending in Saline County. The plaintiff in that action filed a motion to prohibit ex-parte communications between the attorney for the petitioner and the treating physician based upon the physician-patient privilege of A.R.E. Rule 503. The petitioner contended below that any privilege that had existed was waived by the filing of the medical malpractice action. After a hearing, the trial court entered an order prohibiting any contact by the attorneys for the petitioner with the plaintiffs treating physicians without the attorneys for the plaintiff being present. The petitioner seeks a writ of prohibition which would prevent the enforcement of that order.

There is a division of authority among the states that have passed on the privilege issue. Before the privilege issue can be addressed, we must first determine whether a writ of prohibition is the appropriate manner by which to raise the issue. This issue has caused, and will continue to cause, difficulty. However, even though both sides would like an expression from this court concerning this issue, we cannot agree that the issuance of a writ of prohibition is appropriate and therefore, the writ must be denied.

A writ of prohibition is a discretionary matter and is only proper when the trial court has no jurisdiction over the person of the petitioner, is clearly warranted, and there are no disputed facts. Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977).

Both sides argue that this case involves an issue that should be resolved for the benefit of the trial courts and that it presents a question of first impression. The petitioner, however, relies on the fact that writ of prohibition was issued in Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981), which prohibited the trial court from enforcing a pre-trial discovery order which found that certain tax returns and other sensitive financial information was discoverable. However, in Curtis, the court made it clear that irreparable damage would be done once the financial information was disclosed, even if the documents were later held to be inadmissible.

In this case there is no contention that the trial court lacks jurisdiction, but petitioner insists that the issue cannot be presented by appeal rather than by prohibition, except by defying the order of the trial court and conducting an ex-parte interview with the medical witness or witnesses, thereby risking a contempt citation. We agree that counsel is not obliged to come under the shadow of contempt proceedings, but we are not convinced that is the only option. In oral argument counsel maintained that if her only recourse is appeal, then she cannot explore the background with the witness, or probe beneath the surface of the factual setting, that there would be no interaction with the witness, no ability to determine why one course of treatment was pursued in preference to another or why a particular notation or entry was made, or omitted. In short, she asserts she would have lost the right to develop her case. But prohibition is an extraordinary writ, issued only in extraordinary circumstances, and it is dependent on more than conclusory assurance of need from an advocate.

We remain unconvinced that prohibition is the only adequate remedy, as all of the matters touched on seem susceptible to conventional discovery procedures, unless it is to be supposed the witness will provide factual information or professional viewpoints of a different sort in ex-parte consultation than when other counsel are present.

We regard the Curtis decision as unique in that the demonstration of irreparable harm was compelling. In this case it is not compelling. We conclude that prohibition is not the proper remedy.

Because of our holding, we find it unnecessary to decide the respondent’s motion to strike petitioner’s reply brief and supplemental appendix.

The writ of prohibition is accordingly denied.

Special Justice Murrey Grider joins in this opinion.

Newbern and Glaze, JJ., concur.

Holt, C.J., and Turner and Price, JJ., not participating.

Tom Glaze, Justice,

concurring. I concur because the facts in issue here fail to support the issuance of a writ of prohibition. The majority, in my view, should complete its job and overrule Curtis v. Partain, 272 Ark, 400, 614 S.W.2d 671 (1981). It was Curtis that caused the parties in the present case to think a writ of prohibition could lie under the circumstances they describe. Until Curtis, however, the case law had been long settled that a writ of prohibition is never granted unless the inferior tribunal has clearly exceeded its authority, and the party applying for it has no other protection. Jones v. Coffin, 96 Ark. 332, 131 S.W. 873 (1910). Stated in different terms, the court has said that the office of writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Lowery v. Steel, 215 Ark. 240, 219 S.W.2d 932 (1949); Bassett v. Bourland, 175 Ark. 271, 299 S.W. 13 (1927).

In Curtis, this court cited Webb v. Harrison, 261 Ark. 279, 547 S.W.2d 748 (1977), and then promptly misstated the law recited in Webb as it pertained to when writs of prohibition may be issued. In addition, the court then relied upon a California case to justify its decision to grant a writ of prohibition against the trial court, which clearly had jurisdiction of the parties and subject matter before it. The Curtis case merely involved a discovery matter and a trial court’s pretrial order concerning discovery which this court, on appeal, believed should not be enforced. In simple terms, the Curtis decision broke with established law, and extended the reach of the office of writ of prohibition to include a matter never previously recognized by Arkansas law. In my opinion, this court erred in Curtis, and we should officially correct that error now.

Newbern, J., joins this concurrence.


author: Robert H. Dudley, Justice.

text:
    James C. PRICE, et al. v. DRAINAGE DISTRICT NO. 17, Mississippi County, AR., et al.
    89-249
    787 S.W.2d 660
    Supreme Court of Arkansas
    Opinion delivered April 16, 1990
    [Rehearing denied May 14, 1990.]

      Bill W. Bristow, for appellants.

      Mixon & McCauley, for appellees.
   Robert H. Dudley, Justice.

Various landowners filed three (3) separate suits alleging that a tax by appellee drainage district constituted an illegal exaction because, among other reasons, there was a failure to levy the tax. One of the suits was certified as a class action with the class representing all of the taxpayers in the district. The three (3) cases were then consolidated. The appellee district filed a motion for summary judgment. At a hearing on the motion some of the district’s records were stipulated into evidence. The trial court granted summary judgment and dismissed the case. We reverse the granting of summary judgment and remand for further proceedings.

Drainage District No. 17 of Mississippi County, appellee, was created by a special act of the General Assembly, Act 103 of 1917. In 1918, the commissioners of the drainage district laid out the plan of improvement, assessed benefits and damages, and borrowed money to build the improvement. The county court levied special assessments to be paid annually until bonds which financed the improvements were paid in full. A special curative act which remedied any defects in the 1918 proceedings was passed, Act 305 of 1920. By 1984, the bonds had been paid, and only a maintenance tax was being collected on all the lands within the district. However, the revenue from the maintenance tax was not sufficient to properly maintain the drainage ditches and levees; so, the commissioners decided to obtain additional maintenance taxes.

Meanwhile, in 1927 the General Assembly had enacted Act 277 which conferred upon drainage districts created by special acts all of the powers given to drainage districts under the general laws applicable to drainage districts. Ark. Code Ann. § 14-121-208 (1987). See also Meador v. Warrington, 228 Ark. 297, 307 S.W.2d 75 (1957), and Winton v. Bartlett, 181 Ark. 669, 27 S.W.2d 100 (1930). Moreover, this act specifically provides that it does not take away any powers given to the district by special act.

Accordingly, in order to obtain additional taxes with which to maintain the ditches more adequately, the commissioners had their choice of proceeding pursuant to the original special act or under the general laws. They chose to proceed under the special act. In September 1984, the commissioners filed a petition in county court asking for a reassessment of benefits and for a tax to be levied on those reassessed benefits. The county court set a date for a hearing, and the commissioners published notice of the hearing. The notice provided that the hearing would be on the matter of “reassessment of benefits for all property within the District, and levying a tax thereon.” The hearing was held, and the county judge ordered a second hearing. Notice of the second hearing was duly published.

On November 7, 1984, without a reassessment of benefits actually being had, the county judge ordered that “assessed benefits” to all rural property be set at $50.00 per acre and that the “assessed benefits” on all urban property “be set as recommended” by a reappraisal firm. He then ordered “that the tax rate on the above properties be 2% in Drainage District No. 17 and 4.4% in Sub-District No. 1 of Drainage District No. 17.” Most importantly, he ordered “that the Drainage District be and it is hereby authorized and directed to levy and collect for the year 1985 the taxes as stated above. . . .” The evidence introduced on the motion for summary judgment shows no order levying or authorizing collection of taxes for the years after 1985.

Appellants make four (4) assignments of error, each asserting a reason that summary judgment should not have been granted. We need address only one of them because it mandates reversal. In it, appellants contend that the tax was authorized and levied only for the year 1985, and yet in subsequent years, the district continues to collect the tax, and such constitutes an illegal exaction for all years after 1985.

There must be a levy of taxes in order to have a valid tax. Certain Lots v. Monticello, 159 Fla. 134, 31 So. 2d 905 (1947); Commonwealth v. Chesapeake, O. & S. R. Co., 141 Ky. 633, 133 S.W. 559 (1911); St. Louis-San Francisco Ry. Co. v. Bruin, 264 Fed. 789 (1920); Cooley, The Law of Taxation, § 1015 (1924). “It is the first essential to a valid tax.” Isbell v. Board of Supervisors of Woodbury County, 243 Iowa 941, 54 N.W.2d 508 (1952), citing 72 Am. Jur. 2d § 707 (1974). “A local tax is not valid unless it is levied by the proper local authorities.” Isbell v. Board of Supervisors of Woodbury County, supra. To levy a tax means to impose the tax under authority of law. Certain Lots v. Monticello, supra. Cooley, The Law of Taxation, § 1012 (1924). Although we have no Arkansas cases describing “levy,” our cases, statutes, and Constitution use the word in the same way, that is, to impose a tax under authority of law. See Collar v. Crowley, 202 Ark. 1159, 155 S.W.2d 578 (1941); Hopson v. Oliver, 174 Ark. 659, 298 S.W. 489 (1927); Standard Pipe Line Co. v. Index-Sulphur Drainage District, 173 Ark. 372, 293 S.W. 1031 (1927); Rosselot v. Greene and Lawrence Drainage Dist., 137 Ark. 53, 207 S.W. 219 (1918); Vance v. Little Rock, 30 Ark. 435 (1875). Ark. Code Ann. §§ 14-120-318, 14-120-319(2) (1987); Art. 16 § 11 of the Constitution of Arkansas. The special statute which governs this proceeding, Act 103 of 1917, also uses the term in the same manner. Section 13 of that act provides, in part, that “[T]he board may apply to the county court for and secure an order of said court, which shall have all the force of a judgment. . . The tax so levied shall be a lien upon all the real property in the district. . . .” In addition, section 20 of Act 103 provides, in part, that “[I]t shall be the duty of said county court to make such levy for its completion from year to year until it is completed. ...”

In this case, the order authorized the district to “levy and collect for the year 1985.” No other authority to impose the tax is shown in the evidence. Thus, there was no showing of a valid or lawfully levied tax for the years after 1985, and the trial court erred in granting summary judgment in favor of the taxing district.

The appellee district argues that we should affirm the granting of summary judgment because the appellants did not object in a timely manner and because language in the special act automatically extends the taxes upon the tax books. Neither argument has merit.

Had there been a levy of a tax in the years 1986 and thereafter, by the county court, the appellants might well have been required to appeal within thirty (30) days. However, since there was no levy, there was no need to appeal. The county court’s power to levy a tax was not exercised in an erroneous manner; it was not exercised at all. There was no levy from which to appeal. Furthermore, that part of section 20 of the special act which provides for automatic extension upon the tax books simply means that taxes are to be automatically extended after a levy. It does not mean there is an automatic levy.

As set out above, the appellants make four (4) assignments of error, and this opinion addresses only one; the one concerning the tax levy. The appellants contend that if we answer another of the assignments of error they might obtain a refund of all taxes paid, and not just a refund of those paid since the filing of the complaints. The contention is without merit.

The three complaints filed in this consolidated case were filed in 1988. All three (3) allege that the taxpayers have paid taxes since 1985, but not one alleges facts which constitute an actual or threatened exercise of an immediate seizure of the taxpayers’ land. The facts alleged do not, in law, constitute duress or compulsion. Thus, the taxes were voluntarily paid. The case of Brunson v. Board of Directors of Crawford County Levee District, 107 Ark. 24, 153 S.W. 828 (1913), is squarely in point, and dispositive of, this issue. In that case the taxpayer claimed his land was outside the district, that the taxes were illegal and wholly void, and that he was entitled to a refund of all taxes, even those paid before suit was filed. We wrote:

Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered back. And the fact that the party, at the time of making the payment, files a written protest, does not make the payment involuntary.

Under the present allegations, the taxpayers cannot collect refunds for taxes paid before the suits were filed even if those taxes are unconstitutional and illegal. City of Little Rock v. Cash, 277 Ark. 494, 503, 644 S.W.2d 229 (1982).

Since the taxes were similarly voluntarily paid in this case, and since there can be no refund of taxes paid before suit was filed, there is no need to address the other assignments of error. We reverse the granting of summary judgment, reinstate the complaint, and remand for further proceedings.

Price, J., not participating.


author: David Newbern, Justice. Tom Glaze, Justice, Otis H. Turner, Justice,

text:
    NASHVILLE LIVESTOCK COMMISSION and U.S. Insurance Group v. John Paul COX
    89-178
    787 S.W.2d 664
    Supreme Court of Arkansas
    Opinion delivered April 16, 1990

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellants.

      Wright, Chaney & Berry, P.A., for appellee.
   David Newbern, Justice.

The Arkansas Workers’ Compensation Commission refused compensation to the respondent, John Paul Cox. Due to unusual circumstances, Cox was required by his employer, Nashville Livestock Commission (NLC), to work extra hours over a three-day period. He suffered chest pain and was disabled and hospitalized. The workers’ compensation commission’s decision was based upon language found in Black v. Riverside Furniture Co., 6 Ark. App. 370, 642 S.W.2d 338 (1982) and Kempner’s & Dodson Ins. Co. v. Hall, 1 Ark. App. 181, 646 S.W.2d 31 (1983). We granted review of the court of appeals plurality decision which remanded the case to the commission. The court of appeals held that the statements in those two cases which the commission considered to be governing, were obiter dicta, and thus the workers’ compensation commission should not have regarded them as controlling of this case. While we agree with that conclusion, we also conclude that the court of appeals should have decided the fundamental question whether a disabling symptom of an underlying disease may be the basis of compensation if it is brought on by exertion in the course of employment. We hold that the work-related occurrence of a disabling symptom of underlying heart disease is compensable. The court of appeals decision is thus reversed and remanded.

The references in the Black and Kempner’s opinions to symptomology aggravation being noncompensable were clearly unnecessary to the decisions of those cases. In the Black case, the issue was solely whether there was sufficient evidence to support the workers’ compensation commission’s conclusion that a claim for death benefits should be denied. The claimant had an underlying heart condition which had not been shown to have been aggravated by employment. Nor had it been shown that the claimant’s employment was the reason for surgery resulting in death. The claim was a death claim and not one for benefits for disability resulting from an angina attack. In the Kempner’s case, the holding was simply that the testimony of a physician was sufficient to support the commission’s decision that an infarction which had occurred was work related. There was discussion of the language in the Black case, and even a statement that the Black case “holding” was that a disability resulting from a symptom such as angina was not compensable. That discussion, however, clearly was not necessary to the decision and thus was an obiter dictum. W.S. Kirkpatrick & Co., Inc. v. Environmental Tectonics Corp., International, No. 87-2066, slip op. (U.S., January 17, 1990).

The workers’ compensation commission’s opinion in the case before us now contained the following:

The claimant testified that he previously had heart problems in 1977. During a six month time period the claimant experienced weakness, shortness of breath and tightness in his chest. The claimant was hospitalized three or four times and was diagnosed as having minor heart blockage. Claimant attempted to refute that diagnosis by testifying that he later was rediagnosed as having a nervous condition from being around groups of people.
At the time of his alleged injury, the claimant was the manager of the Nashville Livestock Commission. As manager he participated in soliciting business, gathering cattle, and getting cattle ready for weekly sales. On November 19, 1986, cattle sales were scheduled for 1:00 p.m. and 7:00 p.m. Claimant testified that he began getting ready for the Wednesday sales on Sunday and that he had been working from 5:00 or 6:00 a.m. until 12:00 to 2:00 each night from Sunday through Wednesday. Shortly after the beginning of the 7:00 sale, claimant experienced pain in this chest and left arm and felt sick at his stomach. The claimant took some medicine and continued working until 2:30 or 3:00 a.m. Later that night, claimant awoke with severe chest pains and was taken to Nashville Hospital.
Claimant was examined by Dr. Pye, a general practitioner in Nashville, and was later referred to Dr. Hutchins, a cardiologist at the U of A Medical Center in Little Rock. Dr. Hutchins diagnosed claimant as having a pre-existing heart condition; namely single vessel coronary artery disease, and stated that claimant’s working conditions aggravated angina, a symptom of this pre-existing condition. Claimant then filed a workers’ compensation claim alleging that the chest pains arose out of and during the course and scope of his employment causing him to incur hospital and medical bills.

The commission concluded that “claimant’s working conditions merely aggravated angina, a symptom of claimant’s preexisting condition, and is not compensable.”

Under our workers’ compensation law, an employer pays compensation to an employee for “disability or death from injury arising out of and in the course of employment without regard to fault as a cause of the injury.” Ark. Code Ann. § 11 -9-401(a)(1) (1987). The employer must also promptly provide such medical services to any injured employee as are reasonably necessary. Arkansas Code Ann. § 11-9-508(a) (1987).“ ‘Injury’ means only accidental injury arising out of and in the course of employment, including occupational diseases . . . and occupational infections arising out of and in the course of employment.” Ark. Code Ann. § 11-9-102(4). “ ‘Disability’ means incapacity because of injury to earn, in the same or other employment, the wages which the employee was receiving at the time of the injury.” Ark. Code Ann. § 11-9-102(5) (1987).

There is no question that Cox’s condition was disabling. The argument here centers on whether Cox suffered an “injury.” Cox argues an incident of angina which arises out of and in the course of employment is an “injury.” NLC argues such an incident cannot constitute an injury unless there is a change, such as an infarction which damages heart tissue, in the physical condition of the claimant. Other than the obiter dicta in the Black and Kempner’s cases, the only authority cited for that statement by NLC is Sowders v. Mason & Dixon Lines, Inc., 579 S.W.2d 380 (Ky. App. 1979), which, as Cox points out, was based upon a Kentucky statute which specifically defined “injury” as “work related harmful change in the human organism.”

Cox cites a number of cases from other jurisdictions which have allowed recovery for angina pectoris attacks resulting in disability absent a showing of an aggravation, in the sense of making an underlying arteriosclerosis or septal effect worse, of the underlying heart condition which caused the pain. Jones v. Alaska Workers’ Compensation Board, 600 P.2d 738 (Alaska 1979); Canning v. State Department of Transportation, 347 A.2d 605 (Me. 1975); Bertrand v. Cole Operator’s Casualty Company, 253 La. 1115, 221 So. 2d 816 (1968); and H.V. & T.G. Thompson Lumber Co. v. Bates, 148 Ga. App. 810, 253 S.E.2d 213 (1979).

In addition to those cases, we have studied Crum v. General Adjustment Bureau, 738 F.2d 474 (D.C. Cir. 1984), which arose under the Longshoreman’s and Harbor Workers Compensation Act which, at 33 U.S.C. § 902(2), defines “injury” much the same as our statute quoted above. The employer made exactly the same argument as that made by NLC here. The employer argued that no compensable injury had been suffered because angina is not a disease but merely a symptom, and as the employment did not cause the underlying disease, there could be no recovery under the act. The court held that the disabling onset of angina was an “injury” within the meaning of the act and cited other cases where compensation had been allowed despite the fact that the underlying disease or condition had not been caused by the employment, such as back pain in a person suffering spina bifida, pain resulting from varicose veins which prevented the claimant from standing for long periods, and aggravation of underlying psoriasis. 738 F.2d at 478. See also Perrin v. Baldwinsville VF Co., 494 N.Y.S.2d 169 (1985).

In workers’ compensation law the employer “takes the employee as he finds him” and employment circumstances which aggravate pre-existing conditions are compensable. See McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S.W.2d 210 (1943); Green v. Lion Oil Co., 215 Ark. 305, 220 S.W.2d 409 (1949). 1 A. Larson, The Law of Workmens’ Compensation, § 12.20 (1985). We see no reason to hold that a person who is disabled from pain causally related to his or her employment and resulting from an underlying physical condition should be any less entitled to workers’ compensation benefits just because there is no change in that underlying condition. For years this court has labeled myocardial infarctions, “heart attacks,” as “injuries” in the parlance of the workers’ compensation act. R. B Leflar, Compensation for Work-Related Illness in Arkansas, 41 Ark. L. Rev. 89 (1988), citing as examples, Hoerner Waldorf Corp. v. Alford, 255 Ark. 431, 500 S.W.2d 758 (1973); Reynolds Metals Co. v. Cain, 243 Ark. 483, 420 S.W.2d 872 (1967); and McGregor & Pickett v. Arrington, supra. When there is a work-related disabling angina attack, the disability, although temporary as in this case, is no less a disability. The expense of hospitalization and related medical treatment may be less in the case of an angina attack resulting purely from underlying heart disease than with respect to an angina attack which symptomizes an accompanying infarction or other tissue change, but we can think of no reason why there should be compensation for one but not the other if both are brought on by employment. Our holding here is that an attack of angina pectoris which results in disability as defined in the workers’ compensation act may constitute an injury giving rise to compensation under the act if it arises out of and occurs in the course of employment.

Cox’s reply brief suggests .that the commission has not decided whether the angina was caused by his employment. Our reading of the commission’s opinion quoted in part above is that a finding of a relationship between the angina and the employment was made and is clearly shown in the commission’s statement that the angina was aggravated by the employment. The case will nonetheless have to be remanded to the commission to determine the amount of compensation to which Cox is entitled.

Reversed and remanded.

Hays and Turner, JJ., dissent.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I agree with the majority and write only to renew my concurring view in Black v. Riverside Furniture Co., 6 Ark. App. 370, 375, 642 S.W.2d 338, 341 (1982) (Glaze, J., concurring). Black involved a non-work related death case, not a disabling angina case. If the evidence in Black had shown Black’s angina pains had hastened his death, I believe the court would have held the claim compensable. Nonetheless, the medical evidence in Black was lacking in this respect, and the widow’s claim was properly denied.

Here, appellant also relies upon Kempner’s v. Hall, 7 Ark. App. 181, 646 S.W.2d 31 (1983), but that case involved a heart attack, which the Workers’ Compensation Commission found work-related and compensable and the court of appeals affirmed. Again, disabling angina was not the issue there, but I point out that the court of appeals upheld Hall’s heart attack as compensable because the medical evidencé showed his work-related angina pains precipitated his myocardial infarction.

The present case is the first one where an employee’s claim was based upon disabling angina. While there are dicta in Black (and mentioned in Kempner’s) that indicate angina pectoris is not compensable, the cases cited and relied on in Black do not support such a view. In fact, the Black decision cites Duffy v. State Accident Insurance Fund, 43 Or. App. 505, 603 P.2d 1191 (1979), but that case specifically notes that the Fund accepted angina attacks as compensable. In fact, the Workers’ Compensation referee and Board made a permanent partial disability award for the claimant’s angina condition and the Fund never challenged that award. Instead, the only issue raised by the Fund was its denial that it was responsible for the claimant’s underlying heart ailment.

The Black opinion also relied upon Kostamo v. Marquette Iron Mining Co., 405 Mich. 105, 274 N.W.2d 411 (1979), which, in my opinion, is no authority for disallowing disabling angina. Kostamo involved five cases where the claimants suffered from arteriosclerotic heart disease. The Michigan Supreme Court simply affirmed the Workers’ Compensation Appeal Board in each case, four where the Board concluded the claimant failed to show a relationship between his heart attack or death and his employment and one where the Board held the claimant had met his burden of proof. None of the five cases in Kostamo involved the issue we have before us now, viz., whether disabling angina is compensable.

Almost appellant’s entire argument is based upon Black and Kempner’s, which, for the reasons above, are neither controlling nor persuasive on the angina issue presented here. The majority opinion, on the other hand, sets forth sound logic and legal authority why angina, if shown to be work-related, should be compensable. The Commission found the claimant’s disabling angina related to his work conditions. Therefore, I agree with this court’s remand of the case to the Commission to determine the amount of benefits due the claimant.

Otis H. Turner, Justice,

dissenting. The majority of this court has now traversed the final hurdle and has effectively made any claim arising from a heart condition a compensable claim under the Arkansas Workers’ Compensation Law. Stated another way, workers’ compensation insurance has now clearly become health insurance as far as the law relates to heart cases. The only requirement appears to be that the claimant be gainfully employed by an employer covered by the Workers’ Compensation Act.

Volumes have been written on both sides of the question on whether heart conditions are job-related. There is no longer any room for debate that under our holdings a disabling heart condition is compensable if it can somehow be related to the claimant’s employment. However, this court has never implied, before today’s holding, that medical expenses arising from underlying symptomology are reimbursable through workers’ compensation, even if the underlying condition in and of itself does not give rise to a compensable claim.

The majority chooses to distinguish the only previous Arkansas cases on the subject of aggravation of symptoms, Black v. Riverside Furniture Co., 6 Ark. App. 370, 642 S.W.2d 338 (1982), and Kempner’s v. Hall, 7 Ark. App. 181, 646 S.W.2d 31 (1983) , by finding that the language there relating to compensability of symptomology was “obiter dicta.” Obiter dicta is defined by Black’s Law Dictionary (5th ed. 1979) as “Words of an opinion entirely unnecessary for the decision of the case. . . . A remark made, or opinion expressed, by a judge, in his decision upon a cause, ‘by the way,’ that is, incidentally or collaterally, and not directly upon the question before him, or upon a point not necessarily involved in the determination of the cause, or introduced by way of illustration, or analogy or argument. Such are not binding as precedent.”

In Black, the decedent became ill at work and was off for five days while being treated by a physician. He again became ill at work, and the doctor diagnosed the ongoing problems as arteriosclerosis and atrial septal defect and prescribed by-pass surgery. The worker ultimately died from complications of the operation.

There were obvious medical expenses in Black, but in affirming the Workers’ Compensation Commission’s decision and denying compensability, Judge Cloninger said:

We have a situation in this case which has not been specifically addressed before in this jurisdiction; namely, whether or not aggravation of the symptoms of a preexisting condition is compensable. It is not controverted that Mr. Black had two pre-existing heart conditions. His work aggravated the symptoms of those conditions, consisting of chest pains which is called angina pectoris. Mr. Black’s injury, his death, was the result of bypass .surgery which was conducted to correct the pre-existing heart condition.

I do not consider that language to be incidental, collateral, or “entirely unnecessary.”

Nor do I believe the language of the Court of Appeals in Kempner’s to be incidental, collateral, or “entirely unnecessary.” In Kempner’s, the employee had several separate episodes of angina while performing his employment duties. The pain became so great that he eventually went to a hospital and thereafter submitted to by-pass surgery. The issue was whether the surgery was elective, undertaken to alleviate pain caused by arteriosclerosis pre-existing the employment. In Kempner’s the Court of Appeals, though finding the heart condition was job-related and compensable, said:

In order to understand the argument and the issue of this appeal two medical terms must be defined and the action our courts have previously taken with respect to this type case should be reviewed. These definitions are generally accepted and are supported by the medical testimony in the record before us. “Angina” is defined not as a disease but a symptom of the underlying disease. The angina is the pain resulting from the underlying disease. In appellee’s case, it was a symptom of his arteriosclerosis or hardening of the arteries. We have recently held that aggravation of the symptoms of a pre-existing condition are not compensable. In Black v. Riverside Furniture Co., 6 Ark. App. 370, 642 S.W.2d 338 (1982), we held that where working conditions merely aggravated the angina, the symptoms of the pre-existing, underlying arteriosclerosis, the employer was not liable for medical expenses or other consequences.

Obiter dicta, like beauty, is in the eyes of the beholder. In my opinion we are overruling Black and Kempner’s and expanding the application of the workers’ compensation law.

I respectfully dissent.

Hays, J., joins in this dissent.


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    AUTOMOBILE CLUB INTER-INSURANCE EXCHANGE v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY
    90-10
    787 S.W.2d 237
    Supreme Court of Arkansas
    Opinion delivered April 16, 1990

      Kemp, Duckett, Hopkins & Spradley, by: Randolph B. Hopkins and Denise M. Martindill, for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Alfred F. Angulo, for appellee.
   Otis H. Turner, Justice.

This case involves an interpretation of the Arkansas Uninsured Motorist Statutes, Ark. Code Ann. §§ 23-89-401 through 23-89-405 (1987), and the Arkansas Motor Safety Responsibility Act, Ark. Code Ann. §§ 27-19-101 through 27-19-721 (1987 & Supp. 1989).

On June 6, 1987, Mr. and Mrs. John King, residents of the state of Arkansas, were occupants of an automobile owned by Mr. and Mrs. Dennis Downey, residents of the state of Oklahoma. The vehicle, which was licensed and insured in Oklahoma, was involved in a collision in Arkansas with an uninsured motor vehicle. The Kings were insured under the Downeys’ policy with uninsured motorist coverage by the appellee, State Farm Mutual Automobile Insurance Company (State Farm). The Kings also had a personal policy of automobile insurance including uninsured motorist coverage issued by the appellant, Automobile Club Inter-Insurance Exchange (Auto Club). The State Farm policy was written in Oklahoma on application by Oklahoma residents and contained uninsured motorist limits of coverage in the amount of $10,000 for each person and $20,000 for each accident. These coverage limits conformed to Oklahoma law. The Auto Club policy was written in Arkansas and contained uninsured motorist limits with coverage in the amount of $25,000 for each person and $50,000 for each accident, thus conforming to the Arkansas Uninsured Motorist law.

There is no dispute that the State Farm policy provides primary uninsured motorist coverage and that the Auto Club policy provides excess coverage. However, Auto Club contends that, under the Arkansas statutes and the State Farm policy provisions, the State Farm coverage is increased to limits of $25,0°%),000. In a declaratory judgment action the trial court held that the State Farm policy provided coverage of $10,0°%,000. We agree.

The trial court found that: the State Farm policy was written in Oklahoma and conformed to Oklahoma law; the Auto Club policy with $25,000/5o,000 limits issued to the Kings conforms to Arkansas law; the State Farm policy with $10,00%>,000 coverage complies with Oklahoma law; the State Farm policy provides primary coverage and the Auto Club policy provides excess coverage; there exists no ambiguity in the State Farm policy provisions; and the uninsured motorist coverage of the appellee’s policy has limits of $10,000/2o,000.

For reversal, the appellant asserts that the Arkansas minimum statutory limits for uninsured motorist coverage apply and that the language of the “All-States” provision of the State Farm policy requires application here of the higher Arkansas minimum limits. Further, Auto Club contends, even if the “All-States” provision does not apply, the State Farm policy language is ambiguous and should be construed to provide the minimum Arkansas coverage stated in the statute.

The appellant attempts to apply the Arkansas Motor Vehicle Safety Responsibility Act, Ark. Code Ann. §§ 27-19-601 through 27-19-621 (1987) to this situation in order to find a mandatory requirement that the limits of coverage be $25,000 for one person and $50,000 for each accident. That act, however, has no application here. Instead, the Arkansas Uninsured Motorist Statute, Ark. Code Ann. §§ 23-89-401 through 23-89-405 (1987) applies, and by the terms of that act coverage is elective rather than mandatory.

In examining the provisions of the State Farm policy in order to determine the contractual coverage afforded, we note that there are two policy sections affording separate and distinct coverages, which the appellant mistakenly reads together for cross-application. The involved provisions are clear and unambiguous.

The State Farm policy provides, in part:

SECTION 1 — LIABILITY—COVERAGE A
We will:
1. Pay damages which an insured becomes legally liable to pay because of:
a. bodily injury to others, . . .
Motor Vehicle Compulsory Insurance Law or Financial Responsibility Law
1. Out-of-State-Coverage.
If an insured under the liability coverage is in another state or Canada and, as a non-resident, becomes subject to its motor vehicle compulsory insurance, financial responsibility or similar law:
a. the policy will be interpreted to give the coverage required by the law.

This policy provision is found in only the “Liability-Coverage A” section of the policy and by its very term applies only to those instances where the insured becomes legally liable to pay because of bodily injuries to another. Here, the insured is not the party legally obligated to pay — a third party uninsured motorist is the one legally obligated to pay, and this section of the policy simply does not apply.

Under Policy Section III — Uninsured Motorist Vehicle-Coverage U, the insurance contract provides:

We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an uninsured motor vehicle.

Under Section III there is no “All-States” provision such as that contained in Section I. Clearly, Section I and Section III provide different coverage, and each section stands alone. Policy Section I provides for damages an insured becomes legally liable to pay, while Section III provides for payment for damages for bodily injuries an insured is legally entitled to collect from an uninsured motorist.

We hold that the trial court was correct in interpreting the Arkansas statutes and the provisions of the State Farm policy.

Affirmed.

Glaze, J., not participating.


text:
    LOGAN COUNTY, ARKANSAS v. Buster TRITT
    90-20
    787 S.W.2d 239
    Supreme Court of Arkansas
    Opinion delivered April 16, 1990

      John R. Williams, for appellant.

      Hixson, Cleveland & Rush, for appellee.
   Otis H. Turner, Justice.

This is an appeal from a jury verdict in favor of former Logan County Judge Buster Tritt awarding $5,997.55 as reimbursement for attorney’s fees incurred in his official capacity as county judge. The dispute arose over an appointment to the County Equalization Board which the Quorum Court contested by filing a suit against the judge. The office of the prosecuting attorney represented the Quorum Court in bringing the action and Judge Tritt hired personal counsel to respond. At the conclusion, Judge Tritt filed a claim with the county for reimbursement of his legal expense which was disallowed.

The appellant raises five points for reversal, including contentions that there was a failure to properly itemize the disallowed claim against the county; that no funds were appropriated to pay the claim, without which there can be no disbursement of county funds; and, further, that there was no showing that funds were available from which the claim could be paid.

We are unable to consider the appellant’s plea for reversal because of a total noncompliance with Rule 9 of the Rules of the Supreme Court. Rule 9(d) requires, in part, that the appellant’s abstract should consist of an impartial condensation of only such material parts of the pleadings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the court for decision.

The entire case below and the principal point on this appeal concerns an itemized statement of the attorney hired by the appellee. Yet, that statement, though referred to in argument, is not abstracted. The abstract is likewise flagrantly deficient with regard to each of the other issues. There is not even an effort to abstract the pleadings — even the judgment from which this appeal is taken has been omitted. A summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. Jolly v. Hartje, 294 Ark. 16, 740 S.W.2d 143 (1987); see also, Smith, Arkansas Appellate Practice: Abstracting the Record, 31 Ark. L. Rev. 359 (1977).

Appellant’s entire abstract of a 240-page, two-volume record consists of snippets of testimony, totally inadequate for an understanding, much less for a resolution, of the issues.

As Justice Smith wrote, “[Ojne transcript cannot possibly be examined by all seven members of the court in every case and in fact will not be so examined in any case.” Smith, supra, at 361.

Affirmed.


text:
    Alvin TODD v. Rodney SHRUM
    90-36
    787 S.W.2d 240
    Supreme Court of Arkansas
    Opinion delivered April 16, 1990

      Walter A. Murray, for appellant.

      Wilbur C. "Dub" Bentley, for appellee.
   Dale Price, Justice.

On June 24, 1985, appellant Todd’s mobile home was destroyed by fire. Todd brought an action against his tenant, appellee Shrum, because of the fire loss and pled res ipsa loquitur as well as specific acts of negligence. In a non-jury trial, the trial court found that appellant had failed to sustain his burden of proof but did not mention res ipsa loquitur.

In attempting to prove liability, Todd testified that Shrum told him he had cooked some french fries on the morning of the fire. He denied the existence of any electrical problems in the trailer and said he had never received a report of such problems from Shrum. Captain Billy Troy Hampton, with the Little Rock Fire Department, testified that he determined the fire had started in the kitchen in the vicinity of the stove. When asked what was on the stove that caused the fire, he said:

A. Well, they had one burner that was left on the on position. But now the circuit breaker had functioned. It had throwed itself.
Q. Which would indicate what?
A. Well, one of two things: either when the element on the stove shorted itself out, being an electric stove, you know, from one of the rings to another, it should throw the circuit breaker, or else the fire burned deep enough into the wall that it shorted out a wire . . . which would also throw the circuit breaker.

On cross-examination, the Captain testified:

Q. If [the tenant, Shrum] had told you that he had had a whole lot of trouble with the electrical circuits in that trailer, would you have investigated further?
A. Well, I would have pulled the circuit breaker out and seen if it was some kind of damage to it.
Q. [W]hen a circuit breaker is breaking, you really don’t know exactly what is causing that. All you know is it is cutting off because it is getting too hot somewhere?
A. In a major fire, you are right.
Q. And you don’t know . . . whether it is possible that the wiring could have got too hot in the wall?
A. Anything is possible, that’s right.

Shrum testified that he had cooked french fries on Friday, but not on Monday, the morning of the fire. He also said he had had numerous electrical problems with the trailer. He told the court that the circuit breakers would trip frequently when he was running various appliances. He informed Todd of this, but no action was taken. He also told the court that on the morning of the fire, he left work for about 25 minutes to run home and get something from the refrigerator. At that time, about 2 to 2 1/2 hours before the fire, he saw nothing amiss.

Appellant asserts that the trial court erred by failing to properly apply res ipsa loquitur even though it was raised in his pleading. The principal reason this issue fails is that appellant did not ask the trial judge for a ruling on the issue. In Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987), the defendant raised the defense of laches in a pleading. When the court issued its judgment, it made no reference to the laches defense. We said:

Although it may be argued that this issue was raised during the proceedings, we do not consider it on appeal since the matter was not brought to the attention of the trial court for ruling. The burden to obtain a ruling is on the movant, and questions left unresolved are waived, and may not be relied upon on appeal.

Appellant also argues that the decision of the trial court is not supported by substantial evidence. The correct standard for review is whether the trial court’s ruling is clearly erroneous. Burdette v. Madison, 290 Ark. 314, 719 S.W.2d 418 (1986); ARCP Rule 52(a). Based upon the record before us, we find that the ruling of the trial judge was not clearly erroneous.

Affirmed.