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

text:
    FIRSTSOUTH, P.A. v. Harvey L. YATES, Judge, and WYNNE FEDERAL SAVINGS & LOAN ASSOCIATION
    84-317
    689 S.W.2d 532
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Ramsay, Cox, Lile, Bridgeforth, Gilbert, Harrelson & Starling, by: Kimberly W. Tucker, for petitioner.

      Farris, Warfield & Kanaday, by: H. Naill Falls, Jr.; and John N. Killough, for respondents.
   George Rose Smith, Justice.

Wynne Federal Savings & Loan Association brought an action for fraud against the petitioner, FirstSouth, a federal savings and loan association having its principal place of business in Jefferson County. The action was brought in Cross County, where the plaintiff, Wynne Federal, has its main office. FirstSouth moved to quash the service and dismiss the complaint, for improper venue. Wynne Federal answered that it could sue in the county of its residence under Act 642 of 1983. Ark. Stat. Ann. § 27-611 (Supp. 1983). The trial judge agreed and denied the motion to dismiss. On application to this court for a writ of prohibition under Rule 29 (1) (f), we granted a temporary writ and directed that the question be briefed. We now decide the issue of jurisdiction and make the temporary writ permanent.

Wynne Federal’s complaint states a cause of action for fraud and deceit. It alleges that in 1982 FirstSouth asked Wynne Federal to participate in a $20,000,000 loan that FirstSouth was negotiating with a prospective borrower in Texas. The money was to be used in a real estate development known as Sundance Resort Condominiums, in Palm Springs, California. Wynne Federal purchased a $1,000,000 certificate evidencing its participation in the investment. The certificate recited some fundamental details and referred to the Trust Agreement for additional information.

The complaint alleges that FirstSouth misrepresented the Sundance project by saying that it was to be a new development when in fact the loan was to restructure an existing development that had had substantial economic problems. The complaint also alleges that FirstSouth negligently failed to investigate the guarantor’s financial statement and the appraisal of the Sun-dance development. Wynne Federal’s reliance on FirstSouth’s misrepresentations and nondisclosures will allegedly result in a loss of several hundred thousand dollars. The prayer is for compensatory and punitive damages or for rescission and damages.

On its face the complaint does not state a cause of action within the venue fixed by Section 27-611, which applies to actions “for damages to personal property by wrongful or negligent act.” That is, a suit for damages resulting from misrepresentations that brought about an unsound investment of money is not an action for damages to personal property. A review of the history of the statute confirms that conclusion.

Section 27-611 actually had its origin in a different act, which dealt with the venue of suits for personal injuries and wrongful death. For many years such suits, when brought against certain public utilities and other corporations, could be filed in counties other than the one in which the company had its principal place of business. Act 314 of 1939, called the Venue Act, localized the venue of actions for personal injury or wrongful death in either the county “where the accident occurred” which caused the injury or death or the county where the person injured or killed resided at the time of the injury. Ark. Stat. Ann. § 27-610 (Repl. 1979). That act has remained in force without amendment since its enactment 46 years ago. Its background was stated in its emergency clause. See Missouri Pac. R.R. v. Kincannon, 203 Ark. 76, 156 S.W.2d 70 (1941).

The Venue Act had a defect in that a plaintiff might have to sue for his personal injuries in either of two counties, but he might have to sue for the simultaneous damage to his car in yet a third county, that in which the defendant resided. That oversight was corrected by Act 182 of 1947. It provided, repeating the language of the Venue Act, that actions for damages to personal property by wrongful or negligent act might be brought either in the county “where the accident occurred” which caused the damage or in the county of the residence of the owner of the property at the time. That act was the predecessor of Section 27-611 as it now reads. For a ready comparison of that section in 1947 with the changes made by amendments in 1977 and 1983, we set out the wording of the three successive versions:

Act 182 of1947. Any action for damages to personal property by wrongful or negligent act may be brought either in the County where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.
Act 830 of1977. Any action for damages to personal property by wrongful or negligent act, or for the conversion of personal property, may be brought either in the county where the accident occurred which caused the damage, or in the county where the property was converted, or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.
Act 642 of 1983. Any action for damages to personal property by wrongful or negligent act, whether arising from contract, tort, or conversion of personal property, may be brought either in the county where the damage occurred, or in the county where the property was converted, or in the county of residence of the person who was the owner of the property at the time the cause of action arose.

Our decisions have consistently kept the history of Section 27-611 in mind as we have interpreted it in its original form and as amended in 1977. In 1952 we held that the venue fixed by the 1947 act did not apply to actions for the conversion of personal property. Terry v. Plunkett-Jarrell Grocer Co., 220 Ark. 3, 246 S.W.2d 415, 29 A.L.R. 1264 (1952). That decision was unquestionably right, for the conversion of personal property, such as the theft of a car, does not arise from an accident and does not necessarily damage the chattel taken. Twenty-five years after the Terry decision the legislature amended the act by expressly including the conversion of personal property and fixing the place of conversion as an alternative venue. Act 830 of 1977, quoted above.

In 1982 it was argued that the statute embraced negligent damage to a car while it was in the hands of a garageman for repairs. We unanimously held that the statute did not apply because the action arose out of a contract and did not involve an accident or violence or a conversion. Hooper v. Zajac, 275 Ark. 5, 627 S.W.2d 2 (1982). Another case later that year was based on the negligence of a repairman who allowed a boat to sink into a lake. That case was closer, because the sinking might have been regarded as an accident involving force, but the majority took the opposite view. Beatty v. Ponder, 278 Ark. 41, 642 S.W.2d 891 (1982).

The legislature, doubtless in response to Hooper and Beatty, amended the statute by Act 642 of 1983, also quoted above. That act made two changes: (1) The reference to wrongful or negligent act was extended by the addition of “whether arising from contract, tort, or conversion”; and (2) the words “where the damage occurred” were substituted for “where the accident occurred.”

In the case at bar a plaintiff, Wynne Federal, argues for the first time that an action “for damages to personal property by wrongful or negligent act” means an economic injury to the owner of intangible property, here an investment of a million dollars represented by a typewritten participation certificate.

We are not persuaded by that argument. We know that from the outset, in 1947, the reference to actions “for damages to personal property by wrongful or negligent act” has meant a physical damage to tangible property, because the purpose of the statute was to permit actions for that kind of damage to be joined with actions for personal injury and wrongful death. That exact language has not been changed during the 38 years since it was first used. The particular amendments that have been made, bringing in actions for conversion and for damages by wrongful or negligent act arising nonaccidentally or from contract, carry no implication that injury to intangible property or the sustaining of an economic loss is being brought within the legislative intent.

Our fundamental duty, of course, is to give effect to the legislative purpose, whatever that seems to be. Since statehood it has been a basic rule of venue that a defendant is to be sued in the county where he lives or is summoned. Revised Stats., Ch. 116, § 4 (1838); Ark. Stat. Ann. § 27-613 (Repl. 1979). Actions pertaining to land and actions within the Venue Act have been the principal exceptions to the general rule. But if Wynne Federal’s interpretation of the 1983 statute prevails, a drastic and far-reaching change in our law will have taken place. For if an action for “damages to personal property by wrongful or negligent act” includes an action for a misrepresentation of the value of an investment, there is no limit to the new meaning of the statute. How can the line be extended that far without also encompassing an action for breach of a contract to buy a car, an action for libel or slander, an action for a wrongful interference with contractual relations, an action for breach of warranty, an action for fraud in the sale of stock, and so on? The matter of venue would certainly be in turmoil until settled by specific legislation or case-by-case court decisions.

In sum, FirstSouth’s alleged misstatements did not cause damage to Wynne Federal’s personal property. In fact, Wynne Federal did not even own the property when the misrepresentations and negligent conduct occurred. We are convinced that the legislature, by adding a few words to the statute for a known and limited purpose, did not intend to bring about the comprehensive changes in our venue laws that would result from sustaining Wynne Federal’s argument.

The temporary writ of prohibition is made permanent.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Venue in actions for damages to personal property, by wrongful or negligent act, was established by Act 182 of 1947 (Ark. Stat. Ann. § 27-611). Such actions were proper in the county where the accident occurred or the county where the owner of the damaged property resided at the time the cause of action arose. This Court interpreted the statute in the case of Terry v. Plunkett-Jarrell Grocer Co., 220 Ark. 3, 246 S.W.2d 415 (1952), and held that it pertained to physical injury to personal property. The legislature attempted to correct the effects of Terry by enacting Act 830 of 1977. The 1977 Act added the words “or for the conversion of personal property.” The statute already provided for damages to personal property caused by wrongful or negligent acts.

We interpreted Act 830 in the case of Beatty v. Ponder, 278 Ark. 41, 642 S.W.2d 891 (1982), and the majority held that the statute required damages to be the result of actual force or violence. I stated in the dissent in Beatty that the Act did not in any shape, form or fashion require damages to be the result of actual force or violence. I stated then and I restate now that this is pure judicial legislation without any rational reason or purpose.

In any event the legislature again attempted to remedy the situation by enactment of Act 642 of 1983. This Act added the word “tort” to Ark. Stat. Ann. § 27-611. The statute, at the time this action was commenced, provided that damages to personal property caused by wrongful or negligent act, whether arising from contract, tort, or conversion, could be brought in the county where the loss occurred or in the county where the owner resided. I submit that the General Assembly intended to cover all loss, damage or destruction to personal property under this statute. I can see no other manner in which a statute carrying out this intent could be worded unless the word “injury” were added to or substituted for the word “damages.”

In the case at bar the respondent without doubt suffered damages or injury to personal property; i.e., money. It is equally clear that the loss occurred at Wynne in Cross County. That is both the place where the loss occurred and where the owner resided. Common sense dictates that venue is proper in Cross County. Therefore, I would dissolve the writ.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    James MORTON and Alma MORTON v. AMERICAN MEDICAL INTERNATIONAL, INC.
    85-16
    689 S.W.2d 535
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Sanford, Pate & Marschewski, by: Jon R. Sanford, for appellants.

      Huckabay, Munson, Rowlett & Tilley, P.A., for appellee.
   George Rose Smith, Justice.

This is a slip-and-fall case. Alma Morton and her husband brought suit against the appellee for personal injuries and loss of consortium allegedly caused by Mrs. Morton’s having fallen on a slick floor just inside an entrance to St. Mary’s Hospital in Russellville. The defendant denied liability. Mrs. Morton testified that the floor was clean but very slick. Two witnesses who were going in just behind her saw her fall and testified that the floor was slick. The jury, having received appropriate instructions, returned a verdict for the defendant.

The only argument for reversal is that the verdict is not supported by substantial evidence. Counsel for the appellants, without citing any specific case, refer us to a key-numbered section of West’s Arkansas Digest where hundreds of cases are cited for the rule that a verdict supported by substantial evidence will not be set aside on appeal. It is argued that since the plaintiffs’ witnesses in this case testified that the floor was slick and no witness for the defense said it was not, the verdict is not supported by substantial evidence; so the appellants are entitled to a new trial.

This argument stems from a fundamental misunderstanding of the law. We have not, of course, examined the hundreds of cases collected in the digest, but we are confident that in every one of them there was a verdict in favor of the party having the burden of proof, ordinarily the plaintiff, and the verdict was either upheld as being supported by substantial evidence or set aside as not being so supported. We are not aware of any Arkansas case in which a verdict for the party not having the burden of proof has been set aside in a negligence case solely because it was not supported by substantial evidence.

The argument now made is presented so rarely that it seldom finds its way into the books. We did consider it in Spink v. Mourton, 235 Ark. 919, 362 S.W.2d 665 (1962). There the plaintiff, having lost below, argued that there was no substantial evidence to support the verdict and that (as it would logically follow) a verdict should have been directed for the plaintiff. In rejecting that argument we quoted with approval this language from United States Fire Ins. Co. v. Milner Hotels, 253 F.2d 542 (8th Cir. 1958):

Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise.

The Supreme Court of Missouri correctly stated the common law rule, which also governs in Arkansas, in Cluck v. Abe, 328 Mo. 81, 40 S.W.2d 558 (1931):

The burden was not on the defendant, but was on the plaintiff to make out the case stated in his petition. In a case where the allegations of the petition are denied by the answer, and the plaintiff offers oral evidence tending to support the allegations of the petition, the defendant is entitled to have the jury pass upon the credibility of such evidence even though he should offer no evidence himself. The court has no right to tell the jury that it must believe the witnesses. The jury, in the first instance, is the sole judge of the credibility of the witnesses and of the weight and value of their evidence, and may believe or disbelieve the testimony of any one or all of the witnesses, though such evidence be uncontradicted and unimpeached. [Italics supplied.]

See also Parson Construction Co. v. Missouri Public Serv. Co., 425 S.W.2d 166 (Mo. 1968).

We could end this opinion here; but lest it be supposed that a great injustice has occurred, we point out that there were solid reasons for the jury’s verdict. The defense offered evidence to rebut the charge of negligence, its testimony being that the hospital used a non-skid wax, properly applied, that the floor had not been stripped of wax and rewaxed for about a month, that during the month of April, 1982, there had been no reports of anyone else’s having fallen before Mrs. Morton fell on April 23, and that the floor had been rougher than some unidentified surface which plaintiff's’ attorney pointed to during his cross examination of a witness.

Mrs. Morton’s own testimony was also an adequate basis for the verdict, her credibility being a matter for the jury. In four earlier instances she had collected for personal injuries, the first three for rear-end collisions. In the fourth instance she had injured her knee in 1977. At that time she had surgery on the knee, requiring three days’ hospitalization. The knee required surgery again in 1979, and in 1980 a tumor was removed from it. The knee had collapsed on her a number of times, twice causing her to fall when she could not catch herself to prevent it. Because of the knee she was drawing 100% disability from Social Security when she fell at St. Mary’s Hospital. A more detailed discussion of the testimony would obviously be superfluous. The substantiality of the evidence is not the issue on this appeal.

Affirmed.

Dudley, J., not participating.


text:
    PENTRON CORPORATION et al v. DELTA STEEL & CONSTRUCTION COMPANY
    689 S.W.2d 539
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Heiskell, Donaldson, Adams, Williams & Kirsch, by: Charles C. Harrell-, and Jake Brick, P.A., for appellants.
    No response by appellee.
   George Rose Smith, Justice.

The judgment on the jury’s verdict in this case was entered (filed in the clerk’s office) in Crittenden Circuit Court on August 14,1984. The record was not tendered to the clerk of the supreme court until April 1,1985.The clerk refused to file the record, because it was tendered more than seven months after the entry of judgment. Rule 5(b), Ark. Rules of Appellate Procedure. There is unquestionably some uncertainty about the interaction between Rule 4, which governs the filing of the notice of appeal, and Rule 5, which governs the time for filing the record with the clerk of this court. The situation that led to the clerk’s refusal to file the record tendered in this case highlights the conflict that exists; so this is an appropriate opportunity for the court to dispel the confusion.

Here the judgment was entered on August 14. Rule 4(a) requires the notice of appeal to be filed within 30 days, except that Rule 4(b) permits the time to be extended by the timely filing of specified postjudgment motions. Two such motions were timely filed on August 14. Judge Gerald Brown could not hear the motions at once; so he ordered that the motions be heard on September 24. That order was in writing, as required, and was timely entered on August 31. Rule 4(c); Smith v. Boone, 284 Ark. 183, 680 S.W.2d 709 (1984). The motions were denied on September 24 by an order entered on September 26. Notice of appeal was filed on October 5, within the ten days allowed by Rule 4(d). There is no question about the timeliness of the notice of appeal.

At that point Rule 5 came into play. Rule 5 requires the record to be filed with the clerk of this court within 90 days from the filing of the notice of appeal, unless the time is extended by the trial court by an order entered within the 90 days. Here the 90 days from the filing of the notice of appeal on October 5 would have expired on January 3. By an order entered on December 28 the court extended the time for another 90 days, to expire on April 3. On April 1, within the second extension, the record was tendered to the clerk of this court, who refused to file it because Rule 5(b) provides: “In no event shall the time be extended more than seven months from the date of the entry of the judgment, decree or order.” Since the original judgment was entered on August 14, the seven months had expired on March 14.

This point was decided in Sherrell v. Byram, 260 Ark. 908, 545 S.W.2d 603 (1977), where we said that the case “raises the issue of how to calculate the seven months limitation ... for docketing appeals when a motion for new trial has been properly filed and acted upon pursuant to [statutes superseded by the present rules].” We concluded that the seven months must be calculated from the date of the order denying the motion for new trial, for otherwise the trial court’s delay in holding the motion under advisement for more than seven months might thwart the appeal. The Sherrell case, however, was overlooked in Yent v. State, 279 Ark. 268, 650 S.W.2d 577 (1983), where we said that the trial court cannot extend the time to a date more than seven months after the entry of judgment, the appellant’s remedy being to file a partial record in the supreme court and seek an extension for a compelling reason, such as an unavoidable casualty. It should be noted that in any event Yent reached the right result, for the appellant’s failure to obtain the entry of a written order within 30 days after the entry of the judgment, either taking the motion for new trial under advisement or setting a date for it to be heard, was fatal to the attempted appeal. Smith v. Boone, supra.

We are convinced that Sherrell states the better rule, and not merely because a trial judge’s delay might create a hardship. Rule 4 and Rule 5 are meant to operate successively. That is, a final disposition of the case in the trial court is reached before the notice of appeal must be filed under Rule 4. Rule 5 must then be observed in the preparation of the record and its filing with the clerk of the appellate court. That process should logically date from the notice of appeal, not from the entry of a judgment perhaps some months earlier. Even more important, until a motion for a new trial is acted upon, it cannot be known which party will be the appellant, for by Rule 2(a)(3) an order either granting or denying a new trial is appealable. It is manifestly impractical to put the burden of acting within seven months upon a party whose identity may not yet have been determined.

The confusion that has arisen is attributable to the wording of the next to the last sentence in Rule 5(b). On the date of this opinion we are also amending that troublesome sentence, effective today.

Rule granted.


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

text:
    Greg ALTES v. STATE of Arkansas
    CR 85-12
    689 S.W.2d 541
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Sexton, Nolan, Robb & Cuddell, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal of a conviction for DWI and the only question is whether the appellant was in control of his vehicle when he was drunk. There is no dispute that Altes was drunk, having registered .27 on the intoximeter. Altes contended at trial, however, that he did not drink anything until after he ran his truck into a ditch so that he was never in control of his truck while he was drunk. The prosecuting attorney argued that Altes’ story was “utterly fantastic.” Undoubtedly, the trial judge agreed and found that Altes was intoxicated while he was in control of his vehicle in violation of Ark. Stat. Ann. §75-913 (Supp. 1983).

We have had three recent cases on the question of control. In the first case, the defendant was found asleep in his parked car with the keys in the seat. We found that the defendant was not in control. Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984). In the second case, the defendant was found asleep behind the wheel of his car with the keys in the ignition. When awakened by the police, the defendant tried to start his car, and we found that he was in control. Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985). In the third case, which is very similar to this case, the defendant was found drunk beside his vehicle, which was stranded in the median of a divided highway. The driver told the trooper he had driven there. The trooper could not testify how long the truck had been stranded. The defendant was found to have been in control. Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985).

In this case the only difference is that other people were at the scene helping the owner remove his vehicle from the ditch. At 12:17 a.m. an officer arrived on the scene, after being flagged down by a passing motorist. Altes was standing beside the door of his vehicle, the door was open, the motor was running, and he was drunk. Altes’ friend, Gary Rackley, was under the truck. Altes confessed to the officer that he had been driving when the truck went into the ditch. The officer smelled alcohol on him, took him to the station at 12:56 a.m., and administered the intoximeter test, which registered .27.

At the trial, Altes and Rackley told their version of what happened. They had been to a bowling alley playing pool most of the evening where Altes had had nothing to drink. When they left about midnight, in separate vehicles, Altes said it had been raining and the highway was slick; he lost control on a curve and ran his truck into the ditch. Since it was only two or three blocks to Rackley’s house, he went there for help. Rackley said that Altes asked him for something to drink and he gave Altes a three-quarters full pint of whiskey which Altes immediately consumed. Altes said that Rackley suggested that he have something to drink, offered him the whiskey and he drank almost a pint “as fast as I could.” They returned to the truck. A passing motorist stopped, and they made an effort to pull the truck out. Altes said he attached a chain under the truck himself to make sure it was hooked properly, and Rackley drove the truck as it was being pulled; but he allowed Rackley to unhook the chain, the position Rackley was in when the officer arrived. Both insisted that Altes was never in the truck during this process.

Altes argues that there is no evidence that he was drunk when he was driving. In the other “control” cases cited, none of the drivers were driving their vehicles or seen driving their vehicles when drunk. In Azbill v. State, supra, the appellant was found drunk standing beside his vehicle and admitted that he had been driving it. The same facts exist here except for the story told by Altes and his friend.

The trial court did not have to accept Altes’ story. Altes’ story about drinking the whiskey seems tailor-made to explain why the intoximeter reading was so high. Altes’ particularity with his truck in hooking up the chain himself but allowing Rackley to unhook the chain sounds suspect. In short, it was a story the court could easily conclude was pure fabrication to support a contention Altes got drunk after the accident and thereafter was never in the vehicle.

The circumstantial evidence is that Altes was drunk, standing by his truck with the motor running and the door open. He confessed he was driving the truck when it went into the ditch. On appeal the test is whether there is substantial evidence to sustain the conviction. Booner v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). Circumstantial evidence can be substantial evidence. Coleman v. State, 283 Ark. 359, 676 S.W.2d 736 (1983). The evidence must present proof so that the finding does not rest on conjecture. Rode v. State, 274 Ark. 410, 625 S.W.2d 469 (1981). Altes’ story might be true; however, the trial court found it false. We are unable to say there is no substantial evidence to support that finding.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The appellant was found guilty by the use of conjecture and speculation that he had driven the vehicle while intoxicated. This court has affirmed by the use of conjecture and speculation or possibly by the use of clairvoyant powers. There is not a scintilla of evidence to support the conclusion that appellant had been drinking before the accident.

The majority opinion might have some semblance of soundness if it simply stated that appellant became intoxicated after the vehicle became stuck in the mud but he was nevertheless in control of it at the time of the arrest. The approach of the majority has placed us in the position of a super-jury and that we are not. Of course this theory could also be wrong because anyone with knowledge of the testing apparatus knows that with alcohol still in the mouth a test is unreliable. There was no second test given although appellant expressed a desire to obtáin one. In fact he was allowed to make three or four phone calls from the police station to try to locate money for another test. Apparently he was not too drunk to exercise sound judgment in the matter.

Undisputed testimony of witnesses in court reveals that appellant had been at a bowling alley for two or three hours before the incident. According to the appellant and a witness he had not had anything of an alcoholic nature to drink until after the accident. The arresting officers testified they did not know how long the car had been in the ditch, whether appellant had had anything to drink before the incident, or whether appellant had control of the vehicle after it went into the ditch. Also, the officers admitted that appellant could have drunk the alcohol after he left the scene to get help.

We went as far as possible in Wiyott v. State, 284 Ark. 399, 683 S.W.2d 220 (1985). We went too far in Azbill v. State, 285 Ark. 98, 685 S.W.2d 162 (1985). Wiyott was behind the steering wheel of his vehicle and the key was in the ignition. Furthermore, he attempted to start the vehicle when he became aware the officers were present. Azbill, like appellant, was standing beside his vehicle which also had gone into the ditch. The sole redeeming fact to support the conviction of Azbill was that he admitted he had driven from Jonesboro. Neither was there proof that he had become intoxicated after the mishap. We made a correct and sound determination in Dowell v. State, 283 Ark. 161, 671 S.W.2d 740 (1984), and I think we should return to the principles established therein.

Although I may suspect that appellant ingested some intoxicants before the mishap, I have no right to rely on suspicion. I am bound by the proof and the law. This case should be reversed and dismissed.


author: Darrell Hickman, Justice.

text:
    Mike BURDAN, et al v. Barbara WALTON
    85-45
    689 S.W.2d 543
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      William R. Mays, for appellants.

      Kendall & Schrantz, by: Stephen Lee Wood, for appellee.
   Darrell Hickman, Justice.

According to Barbara Walton, the appellee, the appellants wrongfully removed her possessions from her house trailer while she was moving. She estimated her loss at $4,720. The appellants offered testimony that the trailer contained nothing of value, only trash, rags and broken items. The trial judge discounted the damages to $ 1,670 but resolved all issues in Walton’s favor. We affirm in part and reverse in part.

Barbara Walton rented the mobile home in Cave Springs, Arkansas, in June, 1981. The Siloam Springs Housing Authority paid all of her rent as part of a rent subsidy program. She paid $5.00 monthly for furniture, which she rented from Robert Crotser, the owner of the mobile home. Walton’s rent was paid through September, 1982, but she rented another place on September 1, 1982, in Bella Vista, and began moving out of the mobile home that month. It is undisputed that she did not give the 30 days notice required by her lease with the owner.

Mike Burdan, an employee of the Housing Authority, drove by the property periodically as part of his duties in helping administer the rent subsidy program. After doing so for several weeks and seeing no activity, he stopped and determined from what he saw that Walton had moved. Burdan told JoAnn Nees, who was Crotser’s agent and managed the property for him, that he thought the mobile home might have been abandoned by the tenant and to “check it out.” Nees investigated and learned that Walton’s electricity had been transferred on September 7. At the direction of Robert Crotser, Nees contacted Don Locander, who hired a crew that cleaned the mobile home, changed the locks and discarded the items which had been left. No notice of this was ever received by Walton. After Walton found her belongings gone and made demand for them, she filed an action against Burdan, Crotser, Nees and Locander for return of her personal property or, in the alternative, damages. She amended the complaint, realleged the above, and claimed wrongful eviction against Burdan and the Housing Authority.

The appellants argue that the trial judge erred in finding that they wrongfully evicted Walton since she had abandoned the premises. They contend that because of the evidence of abandonment and the evidence of the disrepair of the mobile home which was presented at trial, they had a right to lock Walton out and discard her belongings.

Walton’s rent was paid for the month. The trial judge specifically stated that he did not believe the evidence of Walton’s abuse of the property because none of the appellants had ever complained to Walton until this case arose. It is not disputed that Locander was acting for Nees and that Nees was acting for Crotser. Eviction means interfering with the tenant’s enjoyment of the premises. Fletcher v. Joseph Pfeifer Clothing Co., 103 Ark. 318, 146 S.W. 864 (1912). The trial judge found that the actions of changing the locks and discarding Walton’s personal belongings before her term had expired amounted to eviction. We cannot say that finding is clearly erroneous.

However, we find that it was error to hold the Housing Authority and Mike Burdan liable for either wrongful eviction or for conversion. There was no evidence presented at trial that either party had any knowledge of or were responsible for the acts which constituted the eviction. Burdan did nothing more than tell Nees that it appeared to him that Walton had moved and to check on that. There was an agreement between the Housing Authority and Howard Nees, JoAnn Nees’ late husband, which obligated Nees to notify the Housing Authority before evicting Walton. Nothing in the agreement imposed an affirmative obligation upon the Housing Authority or its employees to prevent the sort of actions that transpired in this case. Therefore, we reverse that part of the judgment holding Burdan and the Housing Authority liable.

The appellants also argue that Walton did not present sufficient evidence from which the trial court could determine damages. The proper measure of damages for the conversion of personal property is its market value at the time and place of conversion. Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). Where a tenant is unlawfully evicted, the tenant is entitled to recover as damages whatever loss results to him because of the wrongful act. Brickey v. Lacy, 245 Ark. 860, 435 S.W.2d 443 (1968).

Walton’s extensive list of the items that were missing and their value was presented at trial. The appellants maintained that most of the items listed were not found at the mobile home or were broken. Walton had several witnesses testify to having seen many of the items in the mobile home. Her present husband testified that he was familiar with the items, that he had experience buying and selling merchandise because he worked for an auctioneering association, and believed Walton had assigned the appropriate value to the missing belongings. The trial judge stated that he did not believe the items left by Walton were worth $4,700; he gave damages only for that which was testified to either directly or indirectly and awarded $1,670. That finding was one of fact, and we do not find it to be clearly erroneous. ARCP Rule 52(a).

Therefore, we affirm the trial court as to the findings against appellants Crotser, Nees and Locander, but reverse as to appellants Burdan and the Housing Authority.

Affirmed in part and reversed in part.


author: John I. Purtle, Justice.

text:
    HANDY DAN HOME IMPROVEMENT CENTER, INC. - Arkansas v. Eugene PETERS
    85-9
    689 S.W.2d 551
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Wright, Lindsey & Jennings, for appellant.

      Greene Law Office, by: Brent Baber, for appellee.
   John I. Purtle, Justice.

The jury awarded appellee the sum of $ 12,500 in his slip and fall suit against the appellant. On appeal it is argued that the trial court erred in giving an instruction on future pain and suffering and permanent injury and in not directing a verdict for the appellant at the close of the appellee’s case. With these two arguments we do not agree and accordingly affirm the judgment.

On September 28, 1983, the appellee went into appellant’s store for the purpose of purchasing merchandise. While in the store he stepped into some kerosene and fell thereby injuring his arm and shoulder. A few minutes before the appellee fell another customer had knocked over a can of kerosene and part of it spilled on the floor. An employee of appellant estimated that the spill occurred about ten minutes before appellee fell. Appellant’s employees testified they were in the process of cleaning up the spill when appellee slipped and fell. There is no dispute of the fact that appellee slipped and fell in the kerosene which a customer spilled. The employees testified that the area was barricaded by use of shopping carts and a chair. The appellant indicated he was in search of a shopping cart when he walked onto the kerosene. There is a direct dispute in the evidence as to the manner of containment of the substance and the degree of protection offered by appellant.

The appellant must have been negligent in allowing the substance to be on the floor or have failed to use ordinary care to remove it before liability attaches. Weingarten, Inc. v. Thompson, 251 Ark. 914, 475 S.W.2d 697 (1972); Owen v. Kroger Company, 238 Ark. 413, 382 S.W.2d 192 (1964); AMI 1105. There is no evidence abstracted reflecting negligence on the part of the appellant in allowing the kerosene to spill on the floor. There is substantial evidence that the appellant did not use ordinary care in removing the substance or protecting the public from being injured by such action as described by the appellee. Appellant’s employees observed the spill of the kerosene as well as the slip and fall by the appellee. One employee tried to warn the appellee to not walk into the kerosene but it was too late by the time he noticed the appellee. The photographs introduced by appellant as depicting the scene were taken several days after the injury and no doubt the jury took this into consideration. We hold that the court properly presented the issue of negligence to the jury. See Pfeifers of Arkansas v. Rorex, 225 Ark. 840, 286 S.W.2d 1 (1956).

The other argument by the appellant is that the court erred in instructing the jury on the matter of future pain and suffering and permanent disability. The trial court apparently gave AMI 2213 (a) and (b) on damages over appellant’s objection that there was no evidence of future pain and suffering or permanent injury. Evidence of future pain and suffering and permanent disability must be established with reasonable certainty and it must not be left up to speculation or conjecture on the part of the jury. Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976); McCord v. Bailey and Mills, 195 Ark. 862, 114 S.W.2d 840 (1938). Permanency may be established by the nature and extent of the injury. Duckworth v. Stephens, 182 Ark. 161, 30 S.W.2d 840 (1930). Persistency of the injuries is a matter to be considered. Belford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526 (1968). Although medical testimony may fail to present a jury question on future pain and suffering, lay testimony may be used to present the issue to the jury. Bailey and Davis v. Bradford, 244 Ark. 8, 423 S.W.2d 565 (1968).

The appellee had been treated by several doctors. One physician testified (stipulated) that appellee had probably torn the rotator cuff in his shoulder and that surgery had been discussed. Several months after the injury the doctor stated an examination of the shoulder revealed abduction to only about 80°. Internal and external rotation was limited to about 60° of normal. He also stated there appeared to be muscle atrophy and neurological deficit reaching the infra spinatus and posterior deltoid. The final doctor’s report, made about five months after the injury, indicated appellee was still suffering pain but not enough to require surgery at the time. Several lay witnesses, including the appellee, stated appellee still held his regular job but he could not do as much work as he did before the injury. His own estimate was that he could do two-thirds of the work he did previously. He was a butcher and it was necessary for his employer to have other employees do part of his work. The injuries still caused him pain at the time of the trial and had been stable about three months. He further testified he could no longer paddle a boat and therefore could not fish like he did before. Other witnesses testified that appellee was still taking medication and appeared to still be suffering pain.

There is a reasonable inference from the treating physician that the appellee will continue to have pain in the future and that he has some residual disability. Additionally there was testimony by appellee and his acquaintances that he was still complaining of pain and taking medication. Also, there was testimony that he could not do as much work as he could before the injury. If there is substantial evidence to support the judgment below we must affirm. Kelly v. Cessna, 282 Ark. 408, 668 S.W.2d 944 (1984).

Affirmed.

Hickman, J., not participating.


text:
    Pamela Lynn IRVAN v. Honorable Bernice L. KIZER, Probate Judge
    84-324
    689 S.W.2d 548
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Kenneth W. Cowan, and Patrick McCarty, of Western Arkansas Legal Services, for. appellant.

      Robert S. Blatt, for appellee.
   John I. Purtle, Justice.

In an original action in this court petitioner, Pamela Lynn Irvan, sought writs of certiorari and prohibition to the Probate Court of Sebastian County, Ft. Smith District. We granted certiorari and requested briefing pursuant to Ark. Sup. Ct. R. 16. We now consider the matter of prohibition. Under the circumstances of this case the writ is granted.

Petitioner gave birth to a son on June 24,1982. She was not married at that time and named the child Cody Lee Irvan. The natural father, Kenneth Glenn Chatman, readily acknowledged his paternity. Upon request of the father the mother obtained an order of the Chancery Court changing the child’s name to Cody Lee Chatman. The father became dissatisfied with only a name change and on March 5, 1984, persuaded the petitioner, in the office of his attorney, to execute an entry of appearance and consent to adoption. On March 6,1984, he filed a petition to adopt the child.

On April 4,1984, after consulting counsel, petitioner filed a motion, upon advice of her attorney, to dismiss the adoption proceeding and to withdraw her entry of appearance and consent to adoption. On May 24, 1984, the matter was presented to the Probate Court and a verbal order of adoption was rendered. The court found no just cause to allow petitioner to withdraw her entry of appearance and consent to adoption. The verbal order granted permanent care and custody to the mother and specifically protected all her rights as the natural mother. Counsel for the father was instructed to prepare a precedent. However, on May 30, 1984, the trial court notified the parties that the entire adoption proceeding was being taken under advisement in order to allow the mother to proceed in the County Court on a bastardy proceeding.

The action was commenced in the County Court on April 13, 1984. After a hearing on June 27,1984, the County Court entered an order finding Kenneth Glenn Chatman to be the father. Permanent care and custody was granted to the mother and the father was ordered to pay monthly child support.

On July 27, 1984, petitioner’s attorney wrote the Probate Court about a final hearing in the adoption proceeding and enclosed a copy of the County Court order. About September 24, 1984, the attorneys for the parties had a chance meeting at which time the father’s attorney informed petitioner’s attorney that a decree of adoption had been entered on July 25,1984. Although the father’s attorney had mailed an interlocutory decree to the judge on July 16, 1984, no copy of the letter of transmittal was sent to petitioner’s attorney. Neither petitioner nor her attorney received any type of notice or copy of the decree until the chance meeting some two months after its entry.

On October 8, 1984, petitioner filed a motion to vacate the interlocutory decree. The motion was denied on November 14, 1984. We granted certiorari on January 21, 1985, and ordered briefing pursuant to Rule 16. The matter is before us for consideration of the petition for prohibition.

Adoptions were unknown to the common law and are entirely statutory. Any attempt to grant rights to the natural relatives, in the absence of statutory authority, is against public policy and is void. Poe v. Case, 263 Ark. 488, 565 S.W.2d 612 (1978). We interpreted the Revised Uniform Adoption Act (Ark. Stat. Ann. §§ 56-201—56-221) in Harper v. Caskin, 265 Ark. 558, 580 S.W.2d 176 (1979). We held in Harper that in order to grant an adoption contrary to the wishes of a natural parent, the conditions prescribed by statute must be clearly proven and the statute construed in favor of the natural parent.

The real problem in the present case is what rights, if any, the natural mother has after the decree of adoption. To begin with there is no question but that the decree was appealable and there can be no appeal from the final decree because no notice of appeal was filed. See per curiam In the Matter of Appeals from Adoption Orders, 277 Ark. 520, 642 S.W.2d 573 (1982). An unmarried parent may adopt a child. Ark. Stat. Ann. § 56-204 (Supp. 1983). A final decree of adoption, or an interlocutory decree which has become final, has the effect of relieving the natural parents of all rights and responsibilities and terminating all legal relationship between the child and his relatives, including the natural parents. Ark. Stat. Ann. § 56-215(a)(1). There is some question in the present case of when the decree of adoption will become final, if indeed it does. It cannot become final until the child has lived in the adoptive home for at least six months. Ark. Stat. Ann. § 56-213. The mother has been given permanent custody and until such time as the adoptive father has had custody for six months, the adoption will not become final if the provisions of Ark. Stat. Ann. § 56-213 are followed. Surely the legislature did not intend to deprive a natural mother of the relationship of parent and child when the father adopts his own child nor did it intend to place some adoption cases in limbo.

Neither the parents nor the court intended to destroy the mother’s relationship with her son. However, the decree attempted to preserve the mother-child relationship without statutory authority. The decree as it is written can never carry out the intent of all parties. In fact if the decree becomes final the father will have the absolute right to take custody of the child from the mother who would be a stranger to her child under the law.

We recognize that this writ is extraordinary and will not be granted unless the petitioner is clearly entitled to the relief sought. Henderson v. Dudley, 264 Ark. 697, 574 S.W.2d 658 (1978). It is available in our exercise of superintending control over inferior courts when there is no other remedy provided. If a petitioner lost a right of appeal through no fault of his own he is entitled to certiorari. Hendricks v. Parker, 237 Ark. 656, 375 S.W.2d 811 (1964).

The circumstances of this case are extraordinary. After the adoption proceedings were underway the Probate Court decided to suspend all activities in order to allow the County Court to consider the matter of paternity. No time was set for hearings or for final adjudication. Without notice to petitioner an interlocutory order of adoption was entered on July 25,1984. On July 27,1984, petitioner’s attorney wrote the court stating it was his understanding that the whole question of adoption was in suspense awaiting the decision by the County Court. The attorney enclosed a copy of the paternity order and specifically requested the trial court to make a final decision in order that the mother could govern herself accordingly. This is obviously a statement that the mother would appeal an adverse ruling. Neither the probate judge nor anyone else responded to the letter. In an affidavit by the attorney, filed in support of the motion to vacate the interlocutory decree, he again states he understood he was to receive notice from the court before any other action was taken in the adoption proceeding. Nothing in the record indicates the court understood otherwise. Under the circumstances of this case we think the petitioner was entitled to rely on the court to notify her of any action taken and this was not done.

The petition is granted and the case is remanded to the Probate Court to proceed in a manner not inconsistent with this opinion.


author: John I. Purtle, Justice. David Newbern, Justice,

text:
    Abraham WOODARD v. WABBASEKA-TUCKER PUBLIC SCHOOL DISTRICT
    84-280
    689 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985
    [Rehearing denied June 24, 1985.]

      Cearley, Mitchell and Roachell, by: Richard W. Roachell, for appellant.

      G. Ross Smith, P.A., for appellee.

       George Rose Smith, J., not participating.

   John I. Purtle, Justice.

The circuit court dismissed appellant’s appeal from the decision of the Wabbaseka School District to not employ the appellant as a teacher for the school year 1983-1984. Appellant argues on appeal that the trial court erred in finding the district had a legitimate rational reason for discrimination against the appellant. We do not find that the court so ruled. The trial court held that there was a rational basis and legitimate purpose in the action taken by the board and further found the action not to be arbitrary and capricious and that there was no abuse of discretion. The findings and holding by the trial court were not clearly erroneous and we therefore affirm.

The appellant had been employed by the Plum Bayou-Tucker School District in Jefferson County for more than three years and was therefore entitled to the security of the Arkansas Teacher Fair Dismissal Act of 1979. However, the Plum Bayou-Tucker District became unable to continue the type of educational program to which it felt the students and patrons were entitled. Primarily financial obligations forced the district to seek annexation to the stronger Wabbaseka District. An agreement was arranged whereby the Plum Bayou-Tucker was dissolved and merged with the Wabbaseka District which insisted that it had a competent and efficient staff which would continue intact after the annexation. Wabbaseka agreed to give the teachers at Plum Bayou-Tucker priority in hiring additional or replacement teachers. Wabbaseka had entered into contracts with its teachers for the 1983-1984 school year but the Plum Bayou-Tucker district had not done so at the time of the merger. The new district did in fact employ 19 of the 21 teachers formerly employed by the dissolved district.

Appellant had more experience and education than the teachers retained in his comparable position at Wabbaseka. Therefore, he claimed the superior right to the position. The Board of Education and the trial court held that there was a rational and reasonable basis for failure to offer the appellant a contract.

Appellant’s argument is that the appellee violated The Teacher Fair Dismissal Act of 1979 [Ark. Stat. Ann. §§ 80-1264—80-1264.10 (Supp. 1980)]. We cannot agree that the Act is controlling under the circumstances of this case. The Act protects the right of renewal of a contract between a teacher and the Board of Directors of a school district. The Act does not attempt to define the rights of teachers and districts to enter into an initial contract. In the present case the appellant’s employing district no longer exists. Therefore, he is applying to a new or different district and is not seeking renewal of his contract. He did not have a contract with the Wabbaseka District. Even if appellant were covered by the Act he does not have an absolute right to the job. He has the right not to be treated arbitrarily or capriciously, or discriminated against because of race, religion, sex, age or national origin. If the School Board action is supported by rational reasons and does not discriminate for the foregoing reasons the appellant’s rights are not violated. Lamar School District #39 v. Kinder & Wright, 278 Ark. 1, 642 S.W.2d 885 (1982).

We cannot agree with the appellant that The Teacher Fair Dismissal Act of 1979 overrides the action taken by merging the Plum Bayou-Tucker District with the Wabbaseka District. Therefore, we cannot say that the treatment of appellant by appellee is unsupported by a rational reason furthering the legitimate purposes of the appellee district.

Affirmed.

Newbern, J., concurs.

David Newbern, Justice,

concurring. This case involved an annexation of one school district (Plum Bayou-Tucker) by another (Wabbaseka) to form a new district called Wabbaseka-Tucker. Even if we consider the Plum Bayou District to have been dissolved and merely its territory annexed, the new district remained responsible for honoring the contracts of the Plum Bayou-Tucker teachers. Ark. Stat. Ann. §§ 80-419, 80-423 (Repl. 1980). The duty to honor Mr. Woodard’s contract, however, does not go beyond the provisions of the Teacher Fair Dismissal Act, and particularly Ark. Stat. Ann. § 80-1264.9(b) (Repl. 1980), which says a teacher may be dismissed for “ . . . any cause which is not arbitrary, capricious or discriminatory. . . .”

The majority opinion says even if that standard applied to Mr. Woodard he has not been treated arbitrarily or capriciously. I view Mr. Woodard’s contention as being that it was arbitrary and capricious to dismiss him without comparing his qualifications with others who, for example, were hired for the English teaching positions in the new district. The majority concludes it was not arbitrary and capricious to fail to make the comparison and hire the best teachers from the pool created by the annexation. The majority’s theme seems to be that in annexing Plum Bayou-Tucker, Wabbaseka had the right to protect its own teachers because it was the stronger district and was somehow doing the weaker district a favor by annexing it. While that theme may not reek of rationality if one assumes the goal of the schools is to provide the best teachers for the students, it cannot be said to be irrational per se for the new district to want to leave undisturbed the contracts of the Wabbaseka teachers. We have been reluctant to deny a school district the power to dismiss a teacher even when the reason seemed to be the won-lost record of a football team. Lamar School District No. 39 v. Kinder, 278 Ark. 1, 642 S.W.2d 885 (1982). Despite that earlier decision, I would disagree with the majority here had we been shown that no legitimate goal was served by keeping Wabbaseka teachers employed despite superior qualifications of available Plum Bayou-Tucker teachers.

It was the duty of the appellant to convince us of the arbitrariness or capriciousness of the plan, and he has not done so. I, therefore, concur in the result reached by the majority.


author: Steele Hays, Justice.

text:
    Dr. Helen SCHAEFFER v. James Franklin McGHEE
    84-319
    689 S.W.2d 537
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Christopher C. Mercer, Jr., and James E. Smedley, for appellant.

      Huckabay, Munson, Rowlett & Tilley, P.A., for appellee.
   Steele Hays, Justice.

Appellant appeals from a judgment on a jury verdict for the defendant in a suit for personal injuries. Appellant’s vehicle was struck from behind by the appellee as appellant slowed to a stop in traffic, allegedly resulting in the injuries complained of. Following the verdict, appellant moved for judgment n.o.v. and alternatively for a new trial. These motions were denied and appellant has appealed. She contends there is no substantial evidence to support the verdict and the trial court should have entered a judgment n.o.v. or ordered a new trial. We affirm the trial court.

When a motion for a new trial is made the test to be applied by the trial court is whether the verdict is against the preponderance of the evidence. ARCP 59(a). But the test on review, where the motion is denied, is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 226 (1982).

It is undisputed appellant’s vehicle was struck from the rear by the appellee’s vehicle. Appellant assumes from that fact alone the jury was obligated to return a verdict in her favor. That is not our law. A plaintiff must prove that she sustained an injury, that the defendant was negligent, and that the negligence of the defendant was the proximate cause of her injuries. See AMI 203.

The fact that appellee’s vehicle struck her does not create a presumption of negligence, St. Louis-San Francisco Ry. Co. v. Ward, 197 A. 520, 124 S.W.2d 975 (1939), and the jury may have decided the appellee was exercising ordinary care. There was proof the roads were glazed with snow and ice. In fact, appellant testified conditions were so hazardous she did not get out of her car after the accident for fear of falling on the ice. Appellee testified when he first saw appellant her vehicle was at a right angle to the curb. He stopped, then followed her for some distance at a slow speed and when she stopped for traffic he skidded into her rear bumper at a speed of 5 miles per hour. Appellee said appellant’s car moved forward about a foot on impact and neither car had any visible damage. Nor did the complaint allege any property damage to her automobile.

With respect to appellant’s injuries, we cannot say the jury was obligated to attribute her complaints to the mishap. The jury could have inferred from the proof her symptoms were attributable to other causes and not to the impact from appellee’s vehicle.

Where the sufficiency of the evidence to support a verdict is the issue on appeal, the standard of review is whether the verdict is supported by substantial evidence. Obviously in appeals from a verdict for the defendant the rule cannot always be read literally, as the defendant may have introduced little or no proof, yet the jury found against the plaintiff. It makes little sense in such cases for the appellant to argue the strict application of the rule, insisting that a reversal is required because the defendant’s proof failed to meet the substantial evidence test. The evident fact is the plaintiff failed to convince the jury, or fact finder, of an essential element of proof. That seems to have been the case with this jury, it simply did not think the defendant was negligent, or that the plaintiff’s injuries were proximately caused by the negligence, if any. Thus, the lack of substance is not with the defendant’s proof, but with the plaintiffs. See Morton v. American Medical International, Inc., 286 Ark. 88, 689 S.W.2d 535 (1985).

The judgment is affirmed.


author: David Newbern, Justice. John I. Purtle, Justice,

text:
    BATESVILLE TRUCK LINES, et al. v. ARKANSAS FREIGHTWAYS, INC.
    85-10
    689 S.W.2d 553
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985
    [Rehearing denied June 24, 1985.]

      Harper, Young, Smith & Maurras, by: Don A. Smith; and Henry & Duckett, by: James M. Duckett, for appellant.

      Douglas & Douglas, by: Troy R. Douglas, for appellee.

       George Rose Smith and Hickman, JJ., not participating.

   David Newbern, Justice.

The appellants are ten Arkansas trucking companies which opposed the granting of a certificate of public convenience and necessity to the appellee. The certificate was granted by the Arkansas Transportation Commission which was affirmed by the circuit court. The appeal falls within our jurisdiction as a result of Arkansas Supreme Court and Court of Appeals Rule 29. 1. d.

The appellants contend the evidence does not preponderate in favor of the appellee and that the commission and the court below did not follow applicable case precedent and statutes in affirming the commission. We find the commission and the court to have been correct in finding a preponderance of the evidence to be in favor of the appellee, and we find no reversible lapse in applying the applicable law.

1. Preponderance of evidence

Ark. Stat. Ann. § 73-134 (Repl. 1979) provides this court, in appeals of cases originating in the Arkansas Transportation Commission, is not bound by determinations of fact made by the circuit court. We review the evidence de novo or in the same manner as we would review a chancery court case. Fisher v. Branscum Moving and Storage Co., 243 Ark. 516, 420 S.W.2d 882 (1967). In a case such as this, the factual question is whether there is a preponderance of evidence supporting a finding that any one of the criteria for granting a certificate in areas already being served by trucking companies was shown to have been satisfied. The criteria are:

(a) That the present service is inadequate; or
(b) That additional service would benefit the general public; or
(c) That the existing carrier has been given an opportunity to furnish additional service as may be required.

Santee v. Brady, 209 Ark. 224, 232, 189 S.W.2d 907, 911-912 (1945).

The commission found that existing service on routes proposed to be served by the appellee was inadequate in view of “ample evidence . . . that the existing carriers are either unable or unwilling to serve the needs of the shippers who supported the application.” The shippers supporting the application are some twenty-seven businesses around Arkansas. Their representatives testified of the need for direct line service among Arkansas cities and towns without “interlining,” which is the practice of transferring intrastate freight from one carrier to another for delivery. There were complaints among the appellee’s witnesses of lack of overnight service, other delays, and instances of lack of “less than truckload” service.

The appellee’s representative testified his company is already engaged in interstate carriage in eleven states including Arkansas. He testified the company has terminals in fourteen Arkansas cities and was establishing terminals in two other cities and would make daily runs to and from each terminal. Overnight delivery would be accomplished by night runs to the Little Rock (hub) terminal and next day runs to outlying terminals.

The commission concluded that most of the appellants and other truckers were serving limited regions of the state, although some had statewide authority, and the service was generally inadequate because of the practice of interlining due to lack of direct line freight service which would be supplied according to the testimony presented by the appellee.

The statements of the appellee’s witnesses were presented in written form to the commission, and the witnesses appeared for cross and redirect examination. Of course, cross examination, in some instances, weakened the presentations of witnesses, but our review of the testimony shows overall preponderance supporting the commission’s and the circuit court’s determination of a need for more intrastate straight line service.

2. Statute and case law

The appellants contend we should reverse because the commission did not recite sufficiently the testimony of the witnesses on which its decision was based, citing Jones Truck Lines, Inc. v. Camden-El Dorado Express Company, 282 Ark. 50, 665 S.W.2d 867 (1984), and Ark. Stat. Ann. § 73-1741 (Repl. 1979). The statute requires the commission to make findings sufficiently detailed to show a reviewing court the controverted questions. The Jones Truck Lines case said our review was hampered because of the failure of the commission to discuss in detail the various witnesses’ testimony.

We have no trouble seeing what the issues were in this case. In the Jones Truck Lines case the commission had not summarized the witnesses’ testimony. In this case, the commission’s order did include a summary. We find the commission’s order was clearly adequate to permit review, especially a de novo review.

Perhaps the appellants’ strongest citation is National Trailer Convoy, Inc. v. Transit Homes, Inc., 254 Ark. 504, 494 S.W.2d 446 (1973), in which we found a lack of public necessity where cross examination revealed a dearth of facts to back up the need declared by proponents of the certificate, and there was a showing by the opponents of their ability and willingness to fill the needs alluded to by the proponents.

Our review in this case did not reveal the kind of weakness found in the testimony in the National Trailer Convoy case. Here, as we have said, there was ample evidence to support the commission’s finding that there was a public need not being fulfilled by the appellants. There are three possible reasons for the need:

(1) The appellants have chosen not to provide the services; or
(2) The appellants have not been given the opportunity to fulfill the need; or
(3) The appellants are physically or fiscally unable to provide the needed services.

The appellants, in their brief, after disputing that the need exists, claim that they are operating within the full extent of the intrastate authority possessed by some of them and further that they were not given the opportunity to service the unfulfilled demands. These positions are inconsistent and in fact support the findings of the commission. If the appellants cannot or will not provide the service, then another carrier offering to do so should be allowed to operate.

The claim that the appellants were not offered the opportunity to fill the need cannot be supported. First, as the Santee case held, only one of the three criteria need be satisfied for the commission’s decision to issue a certificate to be affirmed. Secondly, the record below shows that the commission had previously expanded the operating authority of many of the appellants in order that the appellants could satisfy the same deficiencies the commission has found still extant. Thus it is clear the appellants have been offered the opportunity to remedy the problem but have not done so.

Affirmed.

Hickman, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority correctly recites the law and precedent. However, I disagree on the conclusions reached from the facts presented to the Commission. As the ATC said, “It would serve no useful purpose to abstract the testimony of each of the witnesses . . .” In my opinion we had the same question presented in Jones Truck Lines v. Camden-El Dorado Express Company, 282 Ark. 50, 665 S.W.2d 867 (1984) and reached the opposite result. In Jones we stated: “Of course, often this testimony indicates a desire to have carrier service at all times the witness wanted the service just as if they were traveling in their private car. But we have recognized this is not a necessity within the meaning of the law which must be construed in its practical application to service of this kind.”

It is my opinion that appellee did not establish cause for a certificate of need. It was not shown by competent evidence that the existing carriers’ service was inadequate or that the additional service will benefit the general public. The likely result of this new carrier will be that everyone will give prompt service for a while and then various carriers will discontinue the less profitable runs. The final result will be that almost all segments will have less service than if this CON were denied.

I cannot find any substantial evidence that existing carriers were given an opportunity to improve their services before this certificate was granted. The desire of shippers to use another carrier is not evidence establishing public convenience and necessity. National Trailer Convoy, Inc. v. Transit Homes, Inc., 254 Ark. 504, 494 S.W.2d 446 (1973). Finally, it was not established by any facts that present services are unsatisfactory.

I would, as we did in Jones Truck Lines, supra, reverse the Circuit Court and the Commission and dismiss the application.


author: David Newbern, Justice.

text:
    E.E. CARTWRIGHT v. Howard CARNEY
    84-316
    690 S.W.2d 716
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Wood Law Firm, for appellant.

      McDaniel, Gott & Wells, P.A., for appellee.
   David Newbern, Justice.

E. E. Cartwright was the Democratic Party nominee for sheriff of Mississippi County in the 1984 general election. Howard Carney was a write-in ■ candidate. According to the original tally of votes, Carney was the winner. Cartwright sought and was granted a recount, and the county election commission certified Cartwright as the winner after discarding a number of votes it had previously counted as having been cast for Carney. Carney then filed an election contest complaint with the circuit court.

The complaint alleged that the recount should not have been conducted by the commission because Cartwright’s letter requesting it did not meet the requirement of Ark. Stat. Ann. § 3-508 (Repl. 1976) that a request for a recount state “. . . reasonable grounds for believing that the return, as made by the judges of the election, does not give a correct statement of the vote as actually cast. . . .” The complaint also asked that, in the event the recount was found to have been warranted, the court conduct an election contest and name the winner.

The court found the recount request was insufficient to warrant the recount but, anticipating appeal and possible reversal of that decision, proceeded with the election contest and ultimately declared Carney to be the winner after finding the election commission improperly discarded some of the write-in votes which were originally, and properly, counted as being for Carney. The appellant, Cartwright, has raised six points of appeal. We have combined some of them for purposes of our discussion.

1. Sufficiency of the complaint

Cartwright contends Carney’s complaint was insufficient because it did not meet the standards set in a line of cases typified by Files v. Hill, 268 Ark. 106, 594 S.W.2d 836 (1980), and Jones v. Etheridge, 242 Ark. 907, 416 S.W.2d 306 (1967). Those two named cases dealt, respectively, with allegations of failure to let prospective write-in voters vote for the write-in candidate and allegations of illegal votes having been cast. The theme of those cases is that an election contest complaint is insufficient unless it names the particular disenfranchised or illegal voters, individually, and alleges the manner in which the election result would be changed if the allegations were proven.

The allegations here are quite different. The complaint alleges improper actions on the part of the election commission in allowing a recount of legally cast ballots and, alternatively, in the manner of recounting them. The complaint clearly sets forth the allegations of illegality, and it shows and says the obvious difference in the result if the allegations are proven. We hold that in these circumstances there was no need to go behind the ballots or otherwise to name disenfranchised or illegal voters, thus the cited cases do not apply.

2. Due process

Cartwright contends it was error for the court to conduct the contest with such alacrity as to deny requests and time for discovery. He contends that despite Ark. Stat. Ann. § 3-1002 (Repl. 1976), which requires that election contests be given precedence on the court’s docket and speedily determined, the court denied him substantial rights by not permitting continuances and discovery.

Cartwright wanted to have the court consider all 17,087 ballots cast in the election rather than just the 1,735 write-in ballots which the commission discarded. The court limited its consideration to the latter. Cartwright alleged in an “affirmative defense” that some of the write-in ballots were not in the handwriting of the voters by whom they were cast and thus they were not in compliance with Ark. Stat. Ann. § 3-717(b) (Repl. 1976). Unlike the complaint, this portion of the answer implicates Files v. Hill because it brings up a question of the legality of votes cast. The court dismissed this “affirmative defense” because it did not name the voters casting those ballots or show the result of the election would be changed if the allegation were proven.

It might be asked how Cartwright is supposed to be able to demonstrate the accuracy of his suspicions about the handwriting of the voters absent discovery. That is a good question, but the law in this state does not permit “notice pleading” with its concomitant heavy emphasis on discovery. One must demonstrate more than a suspicion before getting to the discovery phase of litigation. Harvey v. Eastman Kodak Co., 271 Ark. 783, 610 S.W.2d 582 (1981). That is particularly true in election contests where we have the legislative, and obviously appropriate, mandate for speedy determination and this court’s condemnation of “fishing expeditions” in this context. Jones v. Etheridge, supra.

The court permitted both parties access to the ballots upon which the contest was focused, i.e., the write-in ballots which were attempted but were thrown oüt by the commission.

It was proper for the court to restrict the issues in the contest to the ones raised by Carney. In McClain v. Fish, 159 Ark. 199, 251 S.W.2d 686 (1923), this court held that the defendant in an election contest could raise questions about the legality of votes cast for his opponent without meeting statutory requirements that they be raised within a certain time after the election. The logic of that case is compelling, as the defendant, who has just won an election, is in no position to contest it. However, the plaintiff, having initiated the contest, should not be allowed to preclude the defendant from questioning the legality of votes cast for the plaintiff because the defendant (winner) did not contest the election in time. That case, however, has nothing to do with the sufficiency of the defendant’s allegations, as opposed to their timeliness.

The court was correct in dismissing Cartwright’s allegations, and with that dismissal went whatever need there may have been for discovery outside of looking at the ballots being contested.

3. The recount request

Cartwright’s recount request consisted of a letter to the chairman of the election commission. The letter stated it had come to Cartwright’s attention that there were “numerous irregularities” in the election. No particular irregularities were stated to have occurred. The letter concluded, however, as follows:

Furthermore, it is requested that the Mississippi County Election Commission make decisions on the following questions prior to this recount:
(1) How does the write-in candidate’s name have to be written on the ballot?
(a) Is just the last name sufficient?
(b) Does the name have to be spelled correctly?
(c) Can the name be written backward? Example: Carney Howard.
(2) Will other names written on the ballot be counted for the write-in candidate? Examples: Conley, Corney, or Collins.
(3) Will names that are illegible be counted for the write-in candidate?
(4) Does the block for the write-in candidate have to be marked?
(5) Will the vote be counted for E. E. “Hoss” Cartwright if the write-in candidate’s line is blank and both blocks are marked?

Ark. Stat. Ann. § 3-508 (Repl. 1976) says, in part:

. . . [A]ny candidate voted for who may be dissatisfied with the returns from any precinct may have a recount of the votes cast therein by presenting to the County Election Commissioners a petition showing reasonable grounds for believing that the return, as made by the judges of election, does not give a correct statement of the vote as actually cast, as the same is shown by the ballot returned with the certificate of the judges. . . .

The letter stated no grounds, although from the questions asked, some grounds might have been surmised. We agree with the trial court that the letter was not sufficient to comply with the statute, and we could have held that, as the recount was not properly initiated, the case should, without further discussion, be affirmed. However, we hope our discussion of all of the appellant’s points will be useful in future cases.

In recounting the votes, the election commission used its answers to the questions posed in the letter as bases to evaluate the write-in ballots. The answers appear parenthetically with the questions repeated below:

(1) How does the write-in candidate’s name have to be written on the ballot?
(a) Is just the last name sufficient? (No)
(b) Does the name have to be spelled correctly? (Yes)
(c) Can the name be written backward? Example: Carney Howard. (No)
(2) Will other names written on the ballot be counted for the write-in candidate? Examples: Conley, Corney, or Collins. (No)
(3) Will names that are illegible be counted for the write-in candidate? (No)
(4) Does the block for the write-in candidate have to be marked? (No)
(5) Will the vote be counted for E. E. “Hoss” Cartwright if the write-in candidate’s line is blank and both blocks are marked? (No)

These answers made it appear as if the commission were applying the language of Ark. Stat. Ann. § 3-717(b) (Repl. 1976) which, in addition to requiring a write-in vote to be in the handwriting of the voters, says the following:

In addition,.no write-in vote shall be counted unless the name written on the ballot shall be the full name of the person for whom the vote is cast, as the same appears on the Voter Registration Affidavit of the person for whom the vote is cast.

In his evaluation of the ballots, the court refused to follow that language. In an order advising the parties of the standard to be applied, the court stated:

The court finds that that portion of the . . . statute . . . is unconstitutional on its face as an unreasonable and unjustified burden on the exercise of the franchise by anyone wishing to vote for a write-in candidate. The court further finds that any ballot which adequately indicates the voter’s intent to cast his ballot for a write-in candidate shall, if otherwise valid, be counted. The court finds that a write-in vote shall be counted for the write-in candidate if the intention of the voter can be clearly ascertained, regardless of any misspelling, irregularities, reverse listing of the name, (e.g. Carney, Howard), or other such irregularity in the writing of the name of the write-in candidate.

The appellant, Cartwright, does not contend the statute is constitutional. Rather, he argues that, assuming the court was correct in striking it down, the court should not have substituted his own standards, that is, the court should not have “legislated” to fill the void left by the declaration of the statute’s unconstitutionality.

We quite agree that court should not “legislate” in the usual sense of that term. However, when the General Assembly sets in motion governmental machinery which will go awry absent a part which has been declared unconstitutional, the duty of the court is to keep it running if possible. The result reached here is surely the same as would have been reached had there been no statutory statement whatever on the manner of casting a write-in ballot. The court did not legislate a replacement statute. Rather, it simply and appropriately ignored the statute as being unconstitutional.

The emptiness of the appellant’s argument on this point is demonstrated by his insistence that the trial court should have taken testimony to determine the “clear” intent of the voters rather than just apply that standard to examination of the ballots.

4. Ouster

Cartwright contends it was improper for the court to “oust” him from office and name his successor, citing Ark. Stat. Ann. § 3-1007 (Repl. 1976) and Robinson v. Knowlton, 183 Ark. 1127, 40 S.W.2d 450 (1931).

In response to this argument it is enough to say that Cartwright had not taken office as sheriff. The final order of the court was filed on December 28, 1984, before the term of office beginning in 1985. The statute and the case are thus inapplicable.

Affirmed.


text:
    Billy DIXON and Ginger DIXON v. Lorra DIXON
    85-38
    689 S.W.2d 556
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Witt Law Firm, for appellant.

      Bullock & McCormick, for appellee.
   David Newbern, Justice.

This is an adoption case in which the probate court found that consent of the mother of the child to be adopted was necessary despite allegations of her failure significantly to support or communicate with the child for eleven months before the petition was filed and over one year before the rendition of the decree. The court also found adoption would not be in the best interest of the child. These two findings are contested in this appeal. We review the case because it was certified to us by the Court of Appeals pursuant to Arkansas Supreme Court and Court of Appeals Rule 29.4. a. and 29.1. c. We affirm on both points.

Billy and Lorra Dixon were divorced in August, 1982, and Billy received custody of their two-year-old daughter, Jenise. In November, 1983, Billy married Ginger Dixon who petitioned to adopt Jenise on January 10,1984. Lorra thereafter petitioned the chancery court to hold Billy in contempt for failure to permit her exercise of visitation rights established in the divorce decree. The adoption and contempt proceedings were consolidated for hearing.

Lorra testified she was harassed and threatened by Billy’s parents who cared for Jenise after the divorce and before Billy’s remarriage. She also testified that on one occasion Billy had told her she would not be allowed to come near her daughter. Billy testified his behavior on that occasion had only been protective of his daughter because he thought Lorra was drunk.

The judge concluded that (1) Lorra had not expended as much effort as she should have to see the child, (2) the marriage of Billy and Ginger was of short duration, i.e., two months, when the petition was filed, (3) Lorra had visited Jenise some eleven months before the petition was filed, so her consent to the adoption was not obviated by Ark. Stat. Ann. § 56-207(a)(2) (Supp. 1983), (4) the evidence was not sufficient to hold Billy in contempt, (5) the adoption was not in the best interest of the child, (6) the visitation order was reaffirmed.

1. Requirement of consent

Consent of a parent of a child to be adopted is not required when the child is in the custody of another “if the parent for a period of at least one year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree,” § 56-207, supra. The trial court held that because less than a year had passed since Lorra had communicated with her daughter when the adoption petition was filed, Lorra’s consent was still necessary. The appellants argue the time should be measured from the last communication until the time the decree is rendered rather than having the time of filing the petition as the cutoff date.

In Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979), we were confronted with a father who had failed to support his child for a one-year period but had resumed payments before the adoption petition was filed. It was held that the resumption of payments did not reinstate the requirement of obtaining the father’s consent. We noted that the earlier statute on the subject of child abandonment and consent had said consent was not required if there had been abandonment for six months “next preceding the filing of the petition,” Ark. Stat. Ann. § 56-106(b)(1) (Repl. 1971), and that the new statute, § 56-207, contained no such language. In that case we said, however, the test was met under § 56-207 if the failure to support had occurred for one year “when the petition was filed.” Thus we have used the filing of the petition as the cutoff date, and we will continue to do so. One should not be permitted to assert a right until the facts upon which it is predicated have accrued.

2. Child’s best interest

In view of our conclusion that consent of Lorra was necessary and it was not given we need not address the appellant’s second argument which was that the court erred in holding adoption would not be in Jenise’s best interest. We will, however, comment briefly on that argument.

Ark. Stat. Ann. § 56-214(c) (Supp. 1983) permits the court ultimately to approve adoption if the requisite consents have been obtained or excused and “. . . the adoption is in the best interest of the individual to be adopted. . . .” We will reverse a judge’s factual determinations only if they are clearly erroneous or clearly against the preponderance of the evidence. Ark. R. Civ. P. 52(a). Here the judge was in the better position to observe the witnesses, and we can easily see how his conclusion was appropriately influenced by the short duration of the marriage between Billy Dixon and Ginger Dixon who testified she was nineteen years old at the time of the hearing.

While the appellants explain they have established a stable home and that Billy is steadily employed and Ginger is available to take care of Jenise, those facts do not necessarily show adoption to be in the child’s best interest.

Affirmed.


author: Per Curiam.

text:
    Terry Lenn CLAWITTER v. A.L. LOCKHART, Director, Arkansas Department of Correction, and ARKANSAS DEPARTMENT OF CORRECTION
    CR 85-11
    689 S.W.2d 558
    Supreme Court of Arkansas
    Opinion delivered May 20, 1985

      Bennie O’Neil, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant Terry Len Clawitter, who was sentenced as a habitual offender to a term of imprisonment in the Arkansas Department of Correction, was determined by the Department to be ineligible for parole under Act 93 of 1977, Ark. Stat. Ann. §43-2828,43-2829 (Repl. 1977/Supp. 1983), until he served three-fourths of his sentence with credit for good time. Appellant challenged the Department’s determination regarding his parole eligibility in a petition for writ of mandamus in which he asked the trial court to enter a declaratory judgment ordering the Department not to compute his parole eligibility in accordance with Act 93. He contended that Act 93 violates Ark. Stat. Ann. § 41-105 (Repl. 1977) and the constitutional provision against double jeopardy. Appellant did not question the validity of the sentences imposed upon him. The trial court denied the petition and appellant brings this appeal.

Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within 30 days. See Rules of the Supreme Court, Rule 11(h), Ark. Stat. Ann. Vol. 3A (Supp. 1983). He did not file a brief. The State concurs that the appeal has no merit.

Ark. Stat. Ann. § 41-105 (Repl. 1977), which prescribes the method of prosecution when conduct constitutes more than one offense, embodies protections against double jeopardy found in the Fifth Amendment to the United States Constitution and Article II, Section VIII of the Arkansas Constitution. Appellant argued that § 41-105 was violated on the ground that Act 93 imposed another punishment beyond that imposed by the trial court. Denial of parole, however, is not a new punishment. As the court said in Roach v. Board of Pardons & Paroles, State of Arkansas, 503 F.2d 1367, 1368 (8th Cir. 1974):

. . . parole is a supervised release from incarceration prior to the termination of sentence. Conversely, the denial of parole has the effect of perpetuating the status quo, i.e., continued incarceration during the term of sentence. Therefore, such denial does not give rise to multiple punishment for the same offense. United States ex rel. Jacobs v. Barc, 141 F.2d 480 (6th Cir. 1944), cert. denied, 322 U.S. 751, 64 S. Ct. 1262, 88 L.Ed. 1581; Carlisle v. Besinger, 355 F. Supp. 1359, 1363 (D.C. Ill. 1973).

Appellant was not placed in double jeopardy by the application of Act 93 to his sentence.

From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.

Affirmed.