author: Frank Holt, Justice.

text:
    Nellie PALMER, d/b/a PALMER’S BOUTIQUE v. ARKANSAS EMPLOYMENT SECURITY DIVISION
    78-318
    580 S.W. 2d 683
    Opinion delivered April 23, 1979
    (Division II)
    [Rehearing denied June 4, 1979.]

      Hoofman & Bingham, P.A., for appellant.

      Herm Northcutt, for appellee.
   Frank Holt, Justice.

Appellee’s Board of Review determined that appellant was liable for contributions under the State Employment Security Law. The trial court affirmed. Appellant first asserts that the court erred in sustaining the Board’s ruling inasmuch as there was no evidence to support a finding that appellant paid wages, for services performed, to individual beauty operators. We must agree.

The facts are undisputed. Appellant leases the property in which Palmer’s Boutique is located. She owns all the beauty shop equipment and pays the janitorial and utility bills. She is not a beautician and has no cosmetology license. The license for the establishment, issued by the State Board of Cosmetology, is in her name. Several individual beauty operators lease a designated space from appellant for which each operator pays appellant $36 per week. Each lease may be terminated by either appellant or the operator by giving thirty days’ written notice. It provides that the business is to be operated under the name “Palmer’s Boutique.” Each operator has an individual cosmetology license. Appellant pays $25 per year local occupation tax and a $5 per year levy for each chair maintained. She is reimbursed for the $5 fee by each operator. Appellant withholds no income tax nor pays any tax for these individual operators. She has no knowledge of what each individual operator’s earnings are. There is only one phone, and it is listed in the name of the Boutique. Appellant does not take the operator’s calls nor make appointments. She is seldom on the premises except to collect her rent. Each operator works whenever she pleases and is under no obligation to report to appellant. Each operator sets her own fee scale, buys her own supplies and insurance and receives payment for her services directly from her customers.

Ark. Stat. Ann. § 81-1103 (i) (5) (Repl. 1976) provides:

Service performed by an individual for wages shall be deemed to be employment subject to this Act irrespective of whether the common-law relationship of master and servant exists, unless and until it is shown to the satisfaction of the commissioner that—
(a) such individual has been and will continue to be free from control and direction in connection with the performance of such service, both under his contract for the performance of service and in fact; and
(b) such service is performed either outside the usual course of the business for which the service is performed or is performed outside of all the places of business of the enterprise for which the service is performed; and
(c) such individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.

In McCain v. Crossett Lumber Co., 206 Ark. 51, 174 S.W. 2d 114 (1943), we held that paragraphs (a) through (c) have no application “except in cases where the three precedent conditions are first found to exist, to-wit: (1) that services were performed; (2) by an individual; (3) for wages.” § 81-1103 (n) defines wages: “ ‘Wages’ means all remuneration paid for personal services including commissions and bonuses and cash value of all remuneration paid, in any medium other than cash. ” Thus, it is true, as argued by the appellee, that remuneration can be paid or received in different forms for services performed. In making the determination if remuneration is paid, this Act must be construed strictly against the State with any doubts being resolved in favor of tha taxpayer. McCain v. Crossett Lumber Co., supra; and Hervey v. Const. Helicopters, 252 Ark. 728, 480 S.W. 2d 577 (1973).

Here, we are of the view that the facts are insufficient to support a finding that the beauty operators, who paid a fixed rent according to their lease agreement, “performed services” for which “wages” were paid to them by appellant within the meaning of the Act.

It becomes unnecessary to discuss appellant’s contention that even if “wages” were paid, the appellant is exempt from the Act inasmuch as she has met the three requirements, (a) through (c), supra.

Reversed and dismissed.

We agree: Harris, C.J., and Fogleman and Hickman, JJ-


source: Caselaw Access Project

license: Public Domain

text:
    Dale Lawrence BENEDICT et ux v. ARBOR ACRES FARM, INC.
    78-332
    579 S.W. 2d 605
    Opinion delivered April 23, 1979
    (Division II)

      Rick A. Beye, for appellants.

      Crouch, Blair, Cypert & Waters, for appellee.
   Frank Holt, Justice.

Appellee’s deed to the appellants allegedly failed to include a complete legal description of the land (54 acres) purchased, omitting 7.995 acres. Appellee refused to deed the asserted omitted acreage to appellants. When appellants defaulted on their first mortgage payments, held by American Savings & Loan, it sued to foreclose on June 24, 1977, naming both appellants and appellee, the second mortgagee, as defendants. On August 23, 1977, appellee crossclaimed against appellants for default of payments on their purchase money second mortgage. Appellants answered on August 31, 1977. On November 1, 1977, seven days before the trial date, appellants moved for a continuance and cross-claimed against appellee alleging that appellee fraudulently misrepresented the acreage being sold and sought damages. On November 3, 1977, appellants’ motion for a continuance was granted, the trial was reset for November 28, 1977, and appellants’ cross-claim was dismissed without prejudice by the court, acting sua sponte. Upon trial, foreclosure was decreed by the chancellor in favor of American Savings & Loan and the appellee. Appellee then purchased the property at a Commissioner’s sale. Thereafter, appellants instituted the present action to recover damages on the same grounds which they had alleged in their dismissed cross-complaint. Appellee answered, sought the return of the matter to chancery to reform the foreclosure decree and moved for a summary judgment, arguing that appellants’ claim was barred by res judicata in that they had failed to comply with our compulsory counterclaim statute, Ark. Stat. Ann. § 27-1121 Fourth (Repl. 1962), in the prior foreclosure suit. The motion for summary judgment was granted. Hence, this appeal. Appellants assert that the court erred in finding that they failed to comply with the compulsory counterclaim requirements of that statute and in ruling their cause was barred by res judicata.

Appellants, conceding that appellee did proceed in the foreclosure proceeding to the extent necessary to invoke the application of § 27-1121 Fourth, argue that they complied with the statute by filing their pleading on the cross-complaint. They assert that it was within the chancellor’s discretion to dismiss their cross-complaint without prejudice, which would permit them to refile their present claim for damages at a later date. Appellee responds that here it filed its motion for summary judgment accompanied by affidavit, which stated that the parties in the preceding case were the same parties as were present before the court below and that the subject matter of that suit was the foreclosure of property which appellants had purchased from appellee in a transaction which resulted in this suit. Appellee argues that, since appellants did not file an affidavit controverting its affidavit, these uncontroverted facts must be taken as true, therefore leaving no question that both parties and the subject matter of the two suits were the same so that res judicata precludes a second adjudication on the merits. Also appellee asserts that appellants placed themselves in the position of forcing the chancellor to dismiss their crosscomplaint by waiting until 7 days before the trial date to file their action and that, being aware of the doctrine of res judicata, it was incumbent upon appellants to question the ruling of the trial court by appeal in that case. It also contends that a mandatory counterclaim, as here, cannot be dismissed without prejudice; i.e., the dismissal is with prejudice by the very language of § 27-1121 Fourth.

We agree with appellants’ contention that § 27-1121 Fourth was complied with by a timely filing of their cross-claim. All the statute requires, by its clear language, is that a defendant “set out in his answer” such a claim, and we have held that when, as here, the original answer was timely filed, a party may amend his answer, within a reasonable time, to include a cross-complaint. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S.W. 2d 795 (1964). Here we cannot agree with appellee’s contention that the statute, by its very language, prohibits dismissal of a cross-claim without prejudice. Neither do we agree with any of appellee’s other arguments. We find nothing in the statute to indicate that the legislature intended to alter the general rule allowing the court discretion in dismissal of an action without prejudice. See May v. Exxon Corp, 256 Ark. 865, 512 S.W. 2d 11 (1974); and 27 C.J.S. Dismissal and Nonsuit § 73.

To bar a subsequent action, a prior judgment must have been made upon the merits of the case. Ogden v. Pulaski County, 189 Ark. 341, 71 S.W. 2d 1052 (1934). Generally, a dismissal without prejudice will not be a bar to a subsequent action on the same cause. Turner v. Citizens’ Bank of Hickory Ridge, 177 Ark. 586, 9 S.W. 2d 23 (1928); Forschler v. Cash, 128 Ark. 492, 194 S.W. 1029 (1917). This is because a dismissal without prejudice is not an adjudication on the merits. See Forschler v. Cash, supra; and Hallum v. Dickinson, 47 Ark. 120, 14 S.W. 77 (1886). The law of res judicata provides that a prior decree bars a subsequent suit when the subsequent cause involves the same subject matters as that determined or which could have been determined in the former suit between the same parties; the bar extends to those questions of law and fact which “might [well] have been but were not presented.” Turner v. State, 248 Ark. 367, 452 S.W. 2d 317 (1970); and Olmstead v. Rosedale Bldg. & Supply, 229 Ark. 61, 313 S.W. 2d 235 (1958).

Appellee relies upon Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W. 2d 193 (1952), to support its contention that appellants are barred from bringing the present action. There we held that a subsequent action on the same cause was barred when the appellant had asserted the cause as a counterclaim in a previous suit and then took a voluntary non-suit on the counterclaim. Here appellants did not take a voluntary non-suit. To the contrary, the court, exercising its discretion and acting sua sponte, dismissed their claim without prejudice. As a result, there was no opportunity for the issues, the shortage of acreage and resulting damages, raised by the appellants in their cross-claim to be litigated in the previous action.

It was never contended that the court abused its discretion in dismissing appellants’ cross-claim without prejudice. In the circumstances, we hold that appellants are not barred from asserting their cause in the present suit, and, therefore, the court erred in finding appellants failed to comply with the compulsory counterclaim requirements of § 27-1121 and in granting appellee’s motion for summary judgment on the ground of res judicata.

Reversed and remanded.

We agree: Harris, C.J., and Fogleman and Purtle, JJ.


author: Darrell Hickman, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Kenneth WARD et ux
    78-309
    579 S.W. 2d 603
    Opinion delivered April 23, 1979
    (In Banc)

      Thomas B. Keys and Philip N. Gowen, for appellant.

      Jim Burnett, for appellees.
   Darrell Hickman, Justice.

The Arkansas State Highway Commission appeals this condemnation case alleging only one error: The court erred in not striking the testimony of the appellees’ expert witness. We find no error and affirm the judgment.

The appellant sought condemnation in 1975 of .97 acres owned by the appellees to be used in construction of a bypass of the city of Clinton.

The case was tried to the jury on the issue of damages and the appellees called only one expert witness on this issue. He gave an opinion that the damages to the appellees were some $14,744.00. The expert witness for the Highway Commission testified that the damages were $550.00. The jury returned a verdict in favor of the appellees in the sum of $5,-500.00.

The appellees’ expert witness sought to use five comparable sales as a basis of his opinion testimony. Three of those comparable sales were stricken by the trial judge as being objectionable. The other two. were permitted to be used. One was a 1966 sale to Petit Jean Electric Cooperative involving .66 acres in downtown Clinton and the other was .52 acres sold in 1976 to the Heber Springs Savings and Loan Association. Both were located near appellees’ land.

The appellant argues that the appellees’ expert witness’ testimony should have been stricken because one sale was too remote in time, the comparable sales were lots rather than tracts of land, the expert witness conceded the property was enhanced by the construction and one of the sales was to an authority empowered to take property by the law of eminent domain.

We have held that there is no hard and fast rule as to the time beyond which a sale may be considered comparable and remoteness goes to the weight rather than to the admissibility of such testimony. Arkansas State Hwy. Comm’n v. NWA Realty, 262 Ark. 440, 557 S.W. 2d 620 (1977). The question of similarity or dissimilarity is basically a question for the trial judge and we find no abuse of that discretion in this case. See Arkansas State Hwy. Comm’n v. NWA Realty, supra. The appellant, during cross-examination of the expert witness, after considerable questioning, was able to get the witness to concede that “possibly” or “probably” all the land in the area — the witness said within 10 or 20 miles of the construction — was affected to some degree by the construction. Such an admission falls far short of evidence that the property of the appellees was, in fact, enhanced by the construction rather than damaged. See Lazenby v. Ark. State Highway Commission, 231 Ark. 601, 331 S.W. 2d 705 (1960).

One of the comparable sales was to Petit Jean Electric Cooperative, which we assume has the authority and power to condemn property. In the light of our recent decision in the case of Ark. State Hwy. Comm’n v. First Pyramid Life Ins. Co. of America, et al, 265 Ark. 417, 579 S.W. 2d 587 (1979), the trial court should have stricken this testimony unless the expert witness could have demonstrated whether the sale was negotiated, or was consummated because of Petit Jean Electric Cooperative’s power to condemn property.

However, the issue to us on appeal, as it quite often is in this type of case, is whether the entire testimony of the expert should have been stricken. We have said many times that such a motion should be overruled, as it was, if there is any reasonable basis for the expert’s testimony. Ark. State Hwy. Comm’n v. Barnes, 263 Ark. 567, 566 S.W. 2d 148 (1978); Ark. State Hwy. Comm’n v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966). Since that is the only issue to us on appeal, and since there were other bases for the expert witness’ testimony, we find no prejudicial error requiring us to reverse the judgment of the trial court.

Affirmed.

Byrd, J., dissents.


text:
    K. A. KELLEY et al v. Stanley REED, Executor, et al
    78-324
    580 S.W. 2d 682
    Opinion delivered April 23, 1979
    (Division I)
    [Rehearing denied June 4, 1979.]

      Allen & McSpadden and Keith Rutledge, by: Tom Allen, for appellants.

      Murphy, Blair, Post & Stroud, by: Robert D. Stroud, for appellees.
   Darrell Hickman, Justice.

Beulah Kelley of Batesville died in January, 1976. Her will, executed in August, 1954, was admitted to probate in the Independence County Probate Court. The Executor appointed was Stanley Reed, Chairman of the Administrative Board, First United Methodist Church of Batesville. The appellants, K. A. Kelley and Monnie Wilcox, brother and sister of Beulah Kelley, contested the will.

In the first hearing on this matter, the probate judge granted the appellees ’ demurrer to the evidence and dismissed the appellants’ contest at the conclusion of their evidence. We decided, in an unpublished opinion, that there was sufficient evidence of a lack of testamentary capacity to require that the demurrer be overruled. On remand, the matter was reheard in its entirety. Testamentary capacity is not an issue on this second appeal. The main issue at the trial, and presented to us now, is whether an insane delusion from which Beulah Kelley suffered invalidated the will. The probate judge found as a fact that Beulah Kelley was a monomanic, possessing a delusion concerning her family. However, he found that there was no evidence that the 1954 will was a result or a product of that delusion.

The will of Beulah Kelley left her home to her mother for life and the remainder of her property, as well as the home on the death of her mother, to a trust “. . . to give aid to crippled persons, who are in need of help because of their infirmities . . . . ” The will was to be administered by the Board of Stewards of the First Methodist Church of Batesville.

Both parties to this litigation presented evidence of Beulah Kelley’s state of mind. Two witnesses for the appellants, both physicians, testified that in their opinion Beulah Kelley was paranoid and suffered from an insane delusion that she was mistreated because she was crippled. Ms. Kelley was confined to a wheel chair because of polio. Also, the appellants offered testimony from other witnesses that Ms. Kelley suffered from an insane delusion regarding her family. Her family consisted of the appellants and another sister who is not a party to this appeal. She was not survived by a husband or any children.

The appellees offered testimony of several witnesses that Beulah Kelley suffered from no mental deficiency as claimed by the witnesses for the appellants.

A good deal of the evidence regarding her delusion centered around the fact that Ms. Kelley thought that her family had worked against her in her campaign for reelection to the office of County Treasurer. She was defeated after serving several terms. Her defeat was some years after the will was executed in 1954.

The probate judge found that the delusion possessed by the decedent “. . . is not clearly shown to have influenced the testator in making the provisions of the will.” The appellants argue that since it was proved that she suffered from a delusion regarding her family, and since the will did not provide for her family, then it must be set aside as a matter of law. The probate judge was correct. In two cases we have clearly said that in order to invalidate a will because of an insane delusion, it must first be proved that the delusion exists and, second, that the will is a product of the delusion. Taylor v. McClintock, 87 Ark. 243, 112 S.W. 405 (1908); Dumas v. Dumas, et al, 261 Ark. 178, 547 S.W. 2d 417 (1977). To agree with the appellants would be to hold that any will otherwise valid could be set aside simply because a relative was left out of a will. The probate judge found, as a matter of fact, that the appellants had not proved the will was a product of that delusion and we cannot say that finding is clearly against the preponderance of the evidence. Dumas v. Dumas, et al, supra.

The appellants raise three arguments but all of them relate to the insane delusion, the weight of the evidence regarding that issue and the findings of the probate judge. The probate judge correctly followed the law and we cannot say any of his findings are clearly against the preponderance of the evidence.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Byrd, JJ.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. PULASKI INVESTMENT COMPANY et al
    78-325
    580 S.W. 2d 679
    Opinion delivered April 23, 1979
    (Division I)
    [Rehearing denied June 4, 1979.]

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      Friday, Eldredge & Clark, by; George Pike Jr., for appellees.
   Darrell Hickman, Justice.

The Arkansas State Highway Commission appeals a condemnation case from the Pulaski County Circuit Court in which the jury awarded the appellee, Pulaski Investment Company, et al, $234,400.00 for the taking of 32.92 acres to be used in the construction of the East Belt Freeway through Pulaski County.

The Commission alleges three errors on appeal, two of which are without merit. These two relate to the use of a sale by the appellees’ expert witnesses, C. V. Barnes and James Larrison, in arriving at a damage figure. The particular sale occurred about 14 months after this condemnation case was commenced. The Little Rock Port Authority was the seller, Reynolds Metals Company the buyer; the price was $18,750 per acre. Both experts reduced the value of the land, discounting any enhancement to the property that might result from the construction of the freeway. Barnes reduced it to $11,700 per acre; Larrison to $12,000 per acre. Barnes said he considered it a comparable sale that could be used as both a before and an after sale; Larrison used it as an after sale. The only objection at the trial was that the sale was, in fact, an after sale enhanced by the proposed construction and, therefore, the experts’ opinions of before value were without any fair or reasonable basis.

The appellant argues on appeal that all of the before value testimony of these witnesses should be stricken because of the improper use of this sale. We have permitted expert witnesses to make adjustments or to explain the difference between similar tracts. Ark. State Hwy. Comm’n v. Sargent, 241 Ark. 783, 410 S.W. 2d 381 (1967). According to the experts they reduced the value of the property to preclude any possibility of enhancement.

The appellant’s argument is also without merit because it is argued that the entire before value testimony of the experts should be stricken on the basis that one sale was improperly considered. We have held many times that such a motion is improper where there is any basis for such an opinion. Ark. State Hwy. Comm’n v. Barnes, 263 Ark. 567, 566 S.W. 2d 148 (1978). The record shows that Barnes and Larrison relied on other sales and additional information; therefore, we find that their opinions did, in fact, have some fair and reasonable basis.

The third point has merit: The appellant was improperly restricted in its cross-examination of the witness Barnes. The appellant tried to show that Barnes had in other similar cases refused to recognize the principle of enhancement, i.e., the value of a landowner’s remaining property adjacent to a highway is increased as a result of the highway’s construction.

It was the appellant’s theory that appellees’ remaining property, about 40 acres which will lie in a quadrant of an interchange after construction of the freeway, would be enhanced and appellees’ damages thus reduced. The Commission’s attorney attempted to ask Barnes about his testimony in four previous condemnation cases where part of an owner’s land was taken leaving the remainder of the property adjacent to a quadrant of the interchange after construction. The trial court prohibited any such examination. That was error. In a similar case, ironically involving this same witness, we said:

In view of the necessity for a new trial two other points should be mentioned. First, the court was unduly strict in limiting the highway department’s cross-examination of the witness Barnes. The great value of the right of cross-examination has been emphasized so frequently that we need not cite the cases. Counsel sought to show, by interrogating Barnes, that in other condemnation cases he had testified that the taking had not enhanced the value of the landowner’s remaining land, which was thereafter promptly sold at prices in excess of the valuation given by the witness. Of course, the trial judge has much discretion in controlling cross-examination, so that the inquiry does not go too far afield. Even so, if counsel could bring out by Barnes’ own admissions that his earlier testimony had proved to be wrong in a number of instances, his credibility might well have been seriously impaired. The effort should have been permitted.

Ark. State Hwy. Comm’n v. Lewis, 258 Ark. 836, 529 S.W. 2d 142 (1975).

The Commission’s attorney properly proffered Barnes’ testimony in chambers by asking him questions and soliciting answers. While Barnes did not acknowledge that he was aware of enhancement in such cases, that is, that the landowner later received a larger sum of money for the adjacent property than Barnes estimated its worth, the questions that were asked of Barnes were proper and his answers were admissible. His knowledge, or lack of knowledge, and his record of accuracy regarding the value of property would go to the credibility to be given his testimony as an expert witness. Ark. Stat. Ann. § 28-1001, Rules 607 and 611 (Supp. 1977). Of course, the Commission may well be bound by his answers to his knowledge of afterfacts; but the questions and answers, themselves, are admissible.

We have emphasized before that wide latitude must be afforded in cross-examination. In the case of Arkansas State Hwy. Comm’n v. Dean, 247 Ark. 717, 447 S.W. 2d 334 (1966), we said:

The proper cross-examination of a witness is the most effective attack that can be made upon his credibility and the best means of diminishing the weight which might be accorded his testimony. A wide latitude is permitted in cross-examination as to questions tending to impeach the credibility of a witness or in eliciting matter for consideration of the jury in weighing the testimony . . . Where the testimony of a witness is opinion evidence, it is essential that opportunity for thorough cross-examination be accorded. . . .Courts should be especially liberal in allowing full and complete examination of an expert witness. . . .

We find it was prejudicial error to limit the appellant in its cross-examination of Barnes and, therefore, reverse the judgment and remand the cause to the trial court for a new trial.

Reversed and remanded.

We agree: Harris, C.J., and George Rose Smith and Byrd, JJ.


author: John I. Purtle, Justice.

text:
    Ivan QUATTLEBAUM et al v. W. L. “Bill” DAVIS, as County Judge et al
    79-61
    579 S.W. 2d 599
    Opinion delivered April 23, 1979
    (Division I)

      Lessenberry & Carpenter, for appellants.

      Robert Edwards, Pros. Atty., for appellees.
   John I. Purtle, Justice.

On September 12, 1978, the White County Equalization Board contracted with the Miller-Edmiaston Appraisal Company for appraisal of the property in White County. September 29, 1978, the White County Quorum Court approved Ordinance No. 50 authorizing payment of the fees charged by the contractor for the appraisal of the property. On December 27, 1978, the appellants, representing a large number of taxpayers, filed a referendum petition. They sought to have Ordinance No. 50 referred to the voters of White County for approval or disapproval. The county court refused to call a special election for the reason, among others, that the petition did not specifically ask for a special election. A mandamus action was then filed in the circuit court against the county judge and election commission seeking to have a special election held.

On February 2, 1979, the Petition for Writ of Mandamus was presented to the circuit court. The court dismissed the county election commissioners as not being proper parties to the action. The court further refused to grant the writ as to the county judge for the following reasons: (a) The petition did not request a special election; (b) the failure to request a special election vested jurisdiction with the county court to determine the necessity for calling a special election; and, (c) the county court acted within its discretion in determining that there was no need for a special election.

ON APPEAL APPELLANTS CONTEND THAT THE TRIAL COURT ERRED IN REFUSING TO GRANT THE MANDAMUS ORDERING THE SPECIAL ELECTION ON ORDINANCE NO. 50.

Amendment 7 to the Constitution for the State of Arkansas provides that the people may refer an ordinance to the people for an election upon obtaining the signatures of 15% of the votes cast in the last election for circuit clerk in the county where the election is sought to be held. It provides that a petition for referendum may be filed from 30 to 90 days after the passage of the ordinance. Amendment 7 specifically states that a special election may be requested upon the timely filing of the requisite number of signatures with the county election board.

Ark. Stat. Ann. § 84-706 (Repl. 1960) reads as follows:

Each year the board shall, beginning the first day of August, and if deemed necessary, through the first day of September, but not thereafter except when convened in special session, which meeting in special session shall not last beyond the first day of October, except in those counties wherein the assessed value of real and personal property has been found by the assessment coordination department to be below the percentum of true or fair market value as required by law such special session may continue until, but not later than, the third Monday in November of each year, exercise its functions as a board of equalization to equalize the assessed value of all acreage lands, city and town lots, other real property and personal property subject to local assessment, regardless of the year in which such property was last assessed by the local assessor.

Ark. Stat. Ann. § 84-717 (Repl. 1960) provides as follows:

The Equalization Board of any county, on petition of the County Judge, or on its own motion, shall, at any time after adjournment of its regular meeting and before the first Monday in October next following such adjournment, convene in special session for the purpose (1) of completing its work of equalization of property assessments or (2) for the purpose of reviewing or extending its work of equalization of property assessments; and, for that purpose, said board shall be vested and charged with all the powers and duties with which such board is vested and charged when meeting in regular session and, in addition, said board shall be empowered to employ qualified appraisers, abstractors or other persons needed, to appraise properties which the board may need in the discharge of its duties.
The petition of said Equalization Board shall specify the date on which the board shall convene and such board may thereafter exercise its functions but not later than the third Monday in November next following.

Ark. Stat. Ann. § 84-718 (Repl. 1960) allows appeals to be taken from the action of the board of equalization within 10 days of notice, by the taxpayer, and further provides that it shall be held not later than 45 days prior to the date on which the tax books for the year are required to be delivered to the county clerk.

Ark. Stat. Ann. § 84-719 (Repl. 1960) reads as follows:

The expense of any special session of the County Equalization Board, including the expense for employment of appraisers, abstractors and other persons needed, shall be allowed and paid from the general fund of the county. Provided, however, that the general fund of the county shall be reimbursed by transfer to it from the funds of the respective taxing units of the county, and the amount to be contributed by each such taxing unit shall be in the proportion that the total of such ad valorem taxes collected for the benefit of each such taxing unit bears to the total of such ad valorem taxes collected for the benefit of all such taxing units during collection period next following such special session.

Ark. Stat. Ann. § 84-721 (Repl. 1960) allows special sessions by the board of equalization and authorizes the board to employ appraisers and others as needed to appraise the property.

Ark. Stat. Ann. § 84-722 (Repl. 1960) provides expenses incurred by the county equalization board, including the expenses for appraisers, shall be allowed and paid from the general fund of the county. The statute allows the county fund to be reimbursed by the respective taxing units within the county in proportion to the benefits derived.

Ark. Stat. Ann. § 17-4011 (Supp. 1977) makes provisions for initiative and referendum elections on matters concerning county government. This statute complies with the general provisions of Amendment 7 to the Constitution of the State of Arkansas. § 13 (b) of Ark. Stat. Ann. § 17-4011 (Supp. 1977), Act 1977, Number 742, provides that a referendum petition may be submitted to the electors during a general election, or it may be referred to the electors at a special election called for the expressed purpose proposed by the petition. The statute then provides that the county court and the quorum court have the discretionary powers to call special elections on county ordinances in the event the voters themselves do not see fit to do so.

The appellants candidly admit that their petition did not request a special election, thus they fail to abide by the plain and unambiguous wording of the constitution and laws. We recognize that due to the time element involved that appellants really had in mind calling for a special referendum. However, we are not authorized to change the petition for them. Also, we agree that a liberal construction should be applied to the amendment and laws above-stated. In doing so, however, the courts are not authorized to completely ignore the plain words of the statutes as enacted by the General Assembly.

The powers granted to the county equalization board under Ark. Stat. Ann. § 84-706, et seq, plainly gave the board the right to employ appraisers and further states payment shall be from the county general fund, which shall be reimbursed by the respective taxing units. We do not have the contract before us. It has not been made a part of the record, nor abstracted, and we are therefore unable to treat it as other than a valid contract. In that case, it appears the General Assembly has mandated payment from the county funds and neither the quorum court nor the county court would have any discretion in whether the expenses should be paid.

When mandated by the General Assembly, no appropriation by the county is necessary. Green v. Shell, 239 Ark. 1161, 397 S.W. 2d 363 (1965). As we view Ark. Stat. Ann. § 84-719 the expense of the appraisers in this case must be paid by the county and regardless of the results of a referendum this would be true.

We recognize the natural conflict which has arisen in this matter. On the one hand, the people of White County are faced with the loss of state turn-back funds because the assessment of property in the county has been determined by an agency of the state to be inadequate to meet the requirements of the law. On the other hand, the electors are faced with the possibility of increased taxes at a time when the cost of living is ever increasing. The appellants have taken the course believed to be the least detrimental to them in the long run. However, the county judge and the quorum court and, no doubt, the board of equalization have made decisions which they believe are in the best interest of the people of White County. Therefore, the matter has been brought to a head in this proceeding. It is our duty to resolve this situation in accordance with the law and precedent as we understand them to be.

There seems to be no question but that the petition was timely filed and contained the requisite number of signatures and otherwise met all of the requirements except the request for a special election. Appellants rely on Lewis v. Conlee, Mayor, 258 Ark. 715, 529 S.W. 2d 132 (1975), as authority for requiring a local government to conduct a special election when the prerequisites for a referendum are met by the voters. We do not agree that this case stands for the proposition that any time the requisite number of signatures are obtained, in a timely manner, a measure must be referred to a special election. In Conlee the city had enacted an ordinance stating that a special election on a referred matter would be held at a period not less than 10 days after filing of the petitions. When the city government attempted to postpone the election for a period of almost two years, we held it was an abuse of their discretion and required a special election to be held. Since the ordinance in Conlee set no upper time limit on the holding of the special referendum, we held that to postpone such election for 21 months was a violation of Amendment 7.

We agree with the trial court that the matter of calling a special election, if not exercised by the electors, rests in the discretion of the county court and/or the quorum court, either of which may determine the necessity of calling a special election. The reasons set forth in the testimony of the county judge clearly establish the court was acting within its discretion in refusing to call a special election on his own volition. The same reasons would apply to the quorum court. Appellants also rely on Kirkwood v. Carter, County Judge, 252 Ark. 1124, 482 S.W. 2d 608 (1972), as grounds to support their request for the special election. In Kirkwood the electors of Faulkner County had dictated that the county purchase electronic voting machines for all precincts in the county where as many as 300 votes were cast. Although the suit in Kirkwood was in the nature of a Petition for Writ of Mandamus against the county judge and county board of election commissioners, it was not for the purpose of compelling them to hold an election. P , i t her it was for the purpose of requiring them to abide by the results of an election already held. Cochran, Mayor v. Black, 240 Ark. 393, 400 S.W. 2d 280 (1966), involved an initiated ordinance rather than a referendum. The court in Cochran attempted to continue the election until a date beyond the general election. Again, we do not feel that this initiated act i. in point with the attempted referendum. Indeed, Amendment 7 to the Constitution required such elections to be held in the next general election and it was not within the power of the court to extend it beyond that time. In the case of City of North Little Rock v. Gorman, 264 Ark. 150, 568 S.W. 2d 481 (1978), we considered two cases involving the city ordinances of North Little Rock. One case was filed in chancery court and the other in circuit court. We had no trouble in determining that the chancery court did not have jurisdiction in this matter. Nethercutt v. Pulaski County School District, 248 Ark. 143, 450 S.W. 2d 777 (1970). The second case dealt with whether or not the subject matter of the ordinance sought to be referred was a matter subject to referendum action. Therefore, the matter of a special election as such was not before the court.

Although we agree that the provisions of Amendment 7 and Acts of 1977, No. 742, should be construed liberally, we feel this contract is controlled by the specific provisions of Ark. Stat. Ann. §§ 84-706 — 717 — 719. Therefore, since the General Assembly has authorized this action by the board of equalization and mandated payment from the general fund of the county, a special election would not have any effect on the contract here in question. For these reasons, we agree that in this particular case a special election should have been specifically requested even though if successful it would not have changed the effect of the contract made by the board of equalization.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Byrd, JJ.


author: PER CURIAM

text:
    Willie Earl BELL v. STATE of Arkansas
    CR 78-69
    579 S.W. 2d 586
    April 23, 1979

      Willie Earl Bell, pro se.

      Steve Clark, Atty. Gen., for appellee,
   PER CURIAM

Petitioner was convicted of burglary and theft of property and sentenced to 12 years and three years, respectively. We affirmed, Bell v. State, not designated for publication (November 6, 1978). Petitioner now seeks permission to proceed in circuit court under Criminal Procedure Rule 37 for postconviction relief and sets forth two grounds for relief challenging the composition and empanelling of the jury. His appeal was filed on May 15, 1978, and on September 12, 1978, his attorney filed a motion for permission to proceed under Criminal Procedure Rule 37, which was denied on October 2, 1978, as being premature. Petitioner’s present petition is identical to the petition filed by his attorney and the allegations are discussed below.

Let it be stated at the outset that the composition of the jury was not challenged in the trial court and voir dire of the jury is not included in the record. In order for a petitioner to claim postconviction relief regarding the deprivation of a constitutional right when the issue was not raised in the trial court, the burden is on petitioner to show why the issue was not raised and the prejudice that resulted. Wainwright v. Sykes, 433 U.S. 72 (1977). This petitioner has failed to do.

However, regarding petitioner’s allegations, he first alleges:

A. The jury did not represent a cross-section of the community from which it was chosen in that its racial representation was considerably disproportionate to the racial composition of the population area thereby violating the defendant’s Sixth Amendment right to a fair and impartial jury;

There is no requirement that juries must reflect various distinctive groups in the community, but the jury panel from which the jury is drawn must not systematically exclude the distinctive groups. Taylor v. Louisiana, 419 U.S. 522 (1975). Petitioner may not challenge the make-up of the jury merely because a certain number of members of his race were not on the jury, if, in fact, they were not. He must prove his race was systematically excluded. Apodaca v. Oregon, 406 U.S. 404 (1972).

Secondly, he alleges:

B. The jury was not impanelled in accordance with the applicable statutory provisions of the law of the State of Arkansas and of the United States.

Petitioner’s conclusory allegation provides this Court with no facts upon which we could grant relief. He fails to allege by what method the jury was empaneled or by what procedure it should have been empaneled. He even fails to provide the statutory provisions under which he is claiming relief.

Accordingly, petitioner’s pro se petition for permission to proceed under Criminal Procedure Rule 37 for postconviction relief is hereby denied.

Petition denied.


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

text:
    SUPERIOR FEDERAL SAVINGS & LOAN ASSOCIATION et al v. Louise SHELBY
    78-297
    580 S.W. 2d 201
    Opinion delivered April 30, 1979
    (In Banc)

      Shaw & Ledbetter, for appellants.

      Rex M. Terry, for appellee.
   George Rose Smith, Justice.

This is a claim filed by the appellee for additional compensation under the workers’ compensation law. The employer and its insurance carrier resisted the claim on the ground that it was not filed within one year after the last payment of compensation and was therefore barred by limitations. Ark. Stat. Ann. § 81-1318 (b) (Repl. 1976). The Commission rejected the plea of limitations, finding that compensation had been furnished by the carrier to the claimant, in the form of medical treatments, within less than a year before the claim was filed. We find no substantial evidence to support that conclusion and therefore reverse the circuit court’s judgment affirming the award and dismiss the claim.

The facts are not in dispute. Mrs. Shelby suffered a back injury in the course of her employment on February 14, 1975. She lost no time from work, but she was treated from time to time by Dr. Seubold, a chiropractor of her own choosing. On July 31, 1975, Dr. Seubold submitted a bill for $204, which was accompanied by a final report that the patient was asymptomatic and no longer under the doctor’s care. The carrier paid that bill on August 25, 1975.

Dr. Seubold, also on August 25, realized that he had made a mistake in considering the case to be closed and directed his secretary to telephone the insurance carrier to keep the file open. In response to that call the carrier, on August 26, sent a printed questionnaire to Dr. Seubold, requesting a final report and asking for specific information, including this question: “Is the employee still under your treatment? Yes_No__”

Dr. Seubold ignored the questionnaire and in fact did not communicate with the carrier for over 17 months. He did, however, continue to treat Mrs. Shelby. He sent his monthly bills to her and, when she expressed concern about their not having been paid, assured her that the insurance company would pay them. Finally, on February 8, 1977, Dr. Seubold submitted a bill for $405 to the carrier, for medical services consisting primarily of 42 spinal manipulations effected between July 28, 1975, and January 17, 1977. The Commission expressly found that Dr. Seubold was in error in waiting until February of 1977 to send his bill to the insurer, and the doctor testified himself that he had been at fault.

The actual claim now in issue was not filed with the Commission until July 7, 1977. The Commission, in holding that the statute of limitations had not run, relied upon the carrier’s request, made on August 25, 1975, that Dr. Seubold file a final report. The Commission went on to say: “The requested final report was never filed, clearly indicating to all concerned that the claimant was still being treated by Dr. Seubold. Yet, the carrier, acting on the previously retracted ‘final report,’ purportedly ‘closed the file’ and now takes the position that they were unaware of continuing medical treatment at the hands of Dr. Seubold.” There is actually no testimony whatever that the carrier knew that Dr. Seubold was continuing to treat the claimant after the secretary’s telephone call on August 25, 1975. The carrier simply had no information one way or the other.

The Commission’s reasoning, which puts the burden on the carrier to find out whether medical treatments are continuing, misconceives the nature of a statute of limitations. The burden is, rather, on the claimant to act within the time allowed. What we said in a similar situation in Phillips v. Bray, 234 Ark. 190, 351 S.W. 2d 147 (1961), is pertinent:

No one can reasonably contend that a doctor could, by carelessness or connivance, keep the case in suspense for an unlimited time by merely failing to present his bill to the Commission. It seems perfectly obvious that the primary purpose of the one year statute of limitations is to give the claimant that much extra time to decide whether he has been fully compensated for his injury, and not for the purpose of paying belated medical bills.

The one-year statute governing claims for additional compensation runs from the last “payment of compensation,” which we have held to mean the furnishing of medical services. Heflin v. Pepsi Cola Bottling Co., 244 Ark. 195, 424 S.W. 2d 365 (1968). Thus the Commission’s reasoning asserts that in this case the carrier was actually furnishing medical services to the claimant, even though the carrier had merely inquired whether the employee was still under treatment and had no actual knowledge that any medical services were being provided. As we said in Phillips v. Bray, supra, such an interpretation amounts to a nullification of the one-year statute of limitations. We conclude that the statute was permitted to run in the case at bar, not as a result of any action on the part of the carrier but solely as a result of the failure of the claimant or her doctor to file a claim within the time allowed.

Reversed and dismissed.

Hickman, J., concurs.

Purtle, J., dissents.

Darrell Hickman, Justice,

concurring. I agree with the majority decision. However, it is my opinion that the claimant was blameless. She inquired of her doctor about the bills, expressing concern. According to her testimony, the doctor told her not to worry, that the bills would be paid by the Workers’ Compensation insurance.

The doctor admitted that he was at fault in sending to the appellant the final report; he failed to cause intermediate reports to be filed with the appellant; he failed for almost a year to return the form to the appellant that would have clarified his error. The charges were permitted to accumulate to almost double the amount of the first bill before the company was notified of the continuing services.

Since the claimant was blameless, as well as the appellant, that leaves the doctor as solely responsible for the error — an error which should not work to the financial prejudice of the claimant. I presume that will be the case, but I feel strongly enough about the matter to emphasize the question of fault for the benefit of all concerned.

John I. Purtle, Justice,

dissenting. I disagree with the majority because of my interpretation of the facts. I agree that appellants have accurately stated the law as has the majority of this Court. I think the Commission properly applied the facts to the law when it held the carrier was on notice that appellant was still being treated for the admitted compensable injury.

The majority fail to point out that after the appellant received notice that appellee was still being treated and sent the request for additional information their file was improperly closed and thereafter there was nothing in their office to show the appellee was still being treated.

If Dr. Seubold was negligent in not forwarding interim reports it is certainly negligence on the part of appellant to fail to follow up. Simply because the carrier and the doctor failed to do their duties it is unfair to cause appellee to suffer the consequence of their combined negligence. It is normal for an injured employee to assume the matter is being properly handled when she reports the injury and obtains medical services which are paid by the carrier. The average worker is unaware that a formal claim must be filed in order to preserve her rights when she has been informed the case has been accepted as compensable and payments have been made on her behalf.

Perhaps there is something missing in our law if a claim may be legally denied because a formal claim was not filed on a particular date. Maybe the filing of notice and having it accepted or denied should be treated as sufficient notice of the claim. Whether this is a good idea is not up to this Court to decide. There is no such provision under the present law.

I believe the facts in this particular case fit the decision in Reynolds Metals Company v. Brumley, 226 Ark. 388, 290 S.W. 2d 211 (1956). We therein stated:

“This holding follows the general rule that where an employer or his insurance carrier has furnished an injured employee medical and hospital services, this constitutes the payment of compensation or a waiver which suspends the running of the time for filing a claim for compensation.”

It is not in keeping with the intent of the Worker’s Compensation Act, nor in the public interest, to allow an employer to accept a claim and pay benefits for medical services furnished to an injured employee and then close the file and do nothing until the statute runs and then deny the balance of the claim. Under the majority opinion, a carrier could receive medical bills and reports and file them away, or destroy them, and then rely on the statute of limitation to defeat a just and fair claim.

I would hold that appellant had tolled the statute by accepting the claim and then closing it without even so much as a telephone call to the doctor who they knew was treating the injured employee. The last communication the appellant had with Dr. Seubold was that the appellee was still receiving treatment. They should have known there was at least an outstanding bill. In fact, they did receive another bill before the statute ran but did not pay it. The appellant suddenly became aware of everything as soon as limitations had expired.

I see no need to furnish additional citations in support of my position in view of the majority opinion.


author: George Rose Smith, Justice.

text:
    Leroy BURRIS v. STATE of Arkansas
    CR 79-17
    580 S.W. 2d 204
    Opinion delivered April 30, 1979
    (Division I)

      Albert R. Hanna, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, Leroy Burris, was convicted of rape and sentenced to 20 years’ confinement. He contends that the trial court should not have permitted each of two witnesses to testify that the prosecutrix, within a few minutes after the occurrence, stated that she had been raped by Burris. We hold that both statements were admissible.

The prosecutrix testified that, in the absence of her husband, Burris forced her into her apartment and raped her. When she managed to escape she ran, nearly naked, to a neighbor’s house and called the police. Officer Worth answered the call and testified that when he reached the house the prosecutrix was “very hysterical. She was crying, wringing her hands.” It took the officer a few minutes to get her calmed down to where he could get any information from her. She then said that she had been raped by Leroy Burris.

The prosecutrix also called her brother within 15 or 20 minutes after the occurrence. He testified that she sounded really hysterical, that she was “all shook up” and was crying. At first she wouldn’t say what had happened, but she finally said that she had been raped by Leroy. The witness went to his sister’s apartment and saw her within five minutes after the call. Officer Worth was there, and she was still hysterical and crying.

The statements were admissible as being part of what was formerly referred to as the res gestae. The matter is now covered by Rule 803 (2) of the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Supp. 1977), which provides:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness: *****
(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

The trial judge was unquestionably justified in concluding from the testimony that the prosecutrix’s experience had been a “startling event” and that she was still under the stress of excitement caused by it when she made the two statements. They were therefore admissible under the quoted Rule.

Affirmed.

We agree. Harris, C.J., and Byrd and Hickman, JJ.


author: Conley Byrd, Justice. Darrell Hickman, Justice.

text:
    George B. THWEATT et al v. J. E. HALMES and Pauline HALMES
    78-172
    580 S.W. 2d 685
    Opinion delivered April 30, 1979
    (In Banc)
    [Rehearing denied June 4, 1979.]

      Friday, Eldredge & Clark, by: William L. Terry, for appellants.

      A. Jack King, for appellees.
   Conley Byrd, Justice.

The trial court found that appellees J. R. and Pauline Halmes and those through whom they claimed title had acquired by adverse possession an undivided one-half interest in and to all the coal in and under the “back forty” or “south forty” originally conveyed to Charles Thweatt on June 3, 1927. For reversal appellants, who claim title as heirs or devisees of Charles Thweatt and Frank H. Dodge, contend the chancellor erred in holding that the actions of Joe Halmes, grandfather of appellee J. E. Halmes, were sufficient under the law to establish all required elements of adverse possession, especially when viewed in light of the rules pertaining to tenants in common.

The parties stipulated that the area involved — i.e. SW NE 22, T 10 N, R 26 W — consisted of forty acres and was also known as the “back forty” or “south forty” of the Joe Halmes farm.

Alie Nichols testified that he was familiar with the Joe Halmes’ south forty. Coal mining commenced in 1920 or thereabouts and lasted until about 1950. The mined coal went mostly to Mulberry and Missouri. It was common knowledge in the community that Joe Halmes delivered coal for use of the people in the community and elsewhere.

J. E. Halmes testified that there was a continuous mining operation carried on from the early 3Q’s until the 50’s. The last mining was done in 1952 or 1953. His grandfather, Joe Halmes, was the only person who benefited or profited from an ownership in the coal under the land during that period. The mining operation would produce so much coal and then wait until the coal market started moving before the mining operation would start up again. It was common knowledge that his grandfather was mining and had coal for sale. His grandfather advertised “coal for sale” in the paper and maintained a big sign on the place with an arrow that said “Coal for Sale.” His father and Robert McElroy leased the land in 1936 or 1937 and mined continuously until Mr. McElroy died in 1940 or 1941. After that operation stopped people would come in and lease a small area, on which two or three men would work. After he got out of military service in 1946, he, his brother, and their father bought an electric coal digging machine and mined for two years. After they closed down, some other people leased the mine and worked it by hand until the early 50’s. This mining operation all took place on the “back forty” or “south forty” of the Joe Halmes place. He estimated there were 15 shafts sunk on this particular 40. He states that the coal mining was as continuous as it could be because of the market. If the market was there, the mining was carried on every day or every month. Most of the miners were farmers. They would grow what they could and spend all of their other time digging this coal. If there was a market for coal, the miners would let their crops go, but most of the time there was not that much market for coal in the hot summertime and it was fall before people really started hauling coal. Generally, one would find more mining activity after the miners were able to lay by their crops.

J. E. Hardcastle testified that he helped sink some of the shafts on the “back forty.” This occurred from 1928 to about 1939 or 1940. He estimated there were five or six shafts located upon this particular forty besides the slopes. “The slopes would just go back in the ground about 20 feet till you get to the coal. A lot of us fellows farmed and when we got our crops laid by we would go back to mining, but there were a lot of guys out there that didn’t do anything but mining. There was a sign out there pointing to the coal. We built a road out there in the 30’s to haul that coal out on. This one forty was the only place we worked. The rest of the area was too deep to mine.”

Theo Dunford testified that he knew Joe Halmes carried on a mining operation out there for 20 or 25 years. “It was fairly common knowledge that Mr. Halmes was in the coal business. The coal was distributed to Ozark, Mulberry, Missouri and all around. ” On cross-examination he testified that he recalled it as the other witnesses had — i.e. they would work when there was a market for coal. “Hardly ever did they work the whole year around. There was some out there that worked the whole year around. Most of them just worked after their crops were laid by. It was not possible that a whole year would go by without any mining activity at all. ”

Appellant George Thweatt testified that he found the deed to his father in his father’s papers after his father’s death in 1962. The mineral deed to the coal had never been separately assessed and he had never paid any taxes on the land. There were letters among his father’s papers showing that there were a few individual miners operating on the property in 1938.

For reversal appellants rely upon Claybrooke v. Barnes, 180 Ark. 678, 22 S.W. 2d 390 (1929). There, in reversing a trial court’s finding of adverse possession covering a 160 acre tract, we stated:

“. . . Evidence for appellee tended to show that some mining had been done on the land for each year since 1911, but nearly all of the mining had been done on a single 40-acre tract of land. All of the mining was surface mining, and no mines were opened up and mining machinery installed on the land. There was no occupancy of any of the land continuously for a period of seven years. The most that was shown was that, every three or four months, some of the appellees would work surface mines on the land. They all did so under leases from W. E. Barnes in his lifetime and from Mrs. Laura Barnes after his death. It is not possible, however, to take out any definite part of the land which was so mined, and the evidence does not show any continuous operation of mines for the period of seven years. At best it was only a fitful and desultory occupancy for mining purposes, and was not continued for the necessary length of time to give title by adverse possession for the statutory period of seven years.”

On the contrary, the record here shows that there was a continuous occupancy of the “south forty” or “back forty” for mining purposes. Some 15 shafts were sunk in addition to the mining of the slopes. A sign was maintained with an arrow showing “Coal for Sale.” Advertisements of “Coal for Sale” were run in newspapers. A road was constructed to haul the coal to market. The parties stipulated that the only area on which appellees claimed adverse possession was the area known as the “back forty” or “south forty” of the Joe Halmes’ farm. All of the witnesses described the area worked as the “back forty” or “south forty.” Furthermore, the letters in the files show that Charles Thweatt had knowledge of such coal mining operation as early as 1938. Consequently, we cannot say that the trial court’s finding of adverse possession is contrary to a preponderance of the evidence.

Affirmed.

Harris, C.J., and Fogleman and Hickman, JJ., dissent.

Darrell Hickman, Justice.

With all due respect, the majority has, in my judgment, failed to apply the law to this case.

The appellants are owners of one-half of the mineral interests in this land by virtue of a deed that dates back to 1927. The original owners of the interest, kinsmen of these parties, are now deceased.

This property interest was held by the parties and their predecessors as tenants in common. The coal has not been mined for 25 years. Before that, there was a small mining operation. There is not one item of evidence in this record of any single act that could be used to argue that the appellants or their predecessors in title had notice of adverse possession as required by law.

In the case of McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714 (1960), we dealt with a similar case where possession, as well as other facts, was used as a justification to claim title adversely. In McGuire, the cotenant was in charge of a farm, managing it for his own benefit, paying taxes and paying the installment payments upon a mortgage debt. We found these facts insufficient to support a claim of adverse possession against a cotenant. We said:

... in order for that possession to be adverse it was incumbent upon Clovis to bring home to his cUenants knowledge of his hostile claim, either directly or by acts so notorious and unequivocal that notice must be presumed. Smith v. Kapler, supra. Upon this point Clovis’s proof is fatally deficient. It is fair to say that his own testimony, when carefully read in its entirety, discloses that he never asserted a claim of exclusive ownership to a single one of his interested uncles, aunts, or cousins. His testimony implies that these relatives should have deduced from his occupancy that his position was hostile, but the law is otherwise.
Nor do we find in the record proof of any acts so notoriously and unequivocally hostile as to charge the appellants with knowledge of Clovis’s adverse claim. Counsel list an imposing array of facts that are said to satisfy the appellee’s burden of proof, but for the most part the various acts relied upon are merely subordinate aspects of conduct which, taken altogether, amounts simply to possession of the property. . . . [Emphasis added.]

The appellees argue that they had exclusive possession of the property and did not share the benefits from the coal. But, aside from these facts and the passage of time, they have nothing more. There was no severance of the mineral interests so that the taxes could be paid separately. The first notice of an adverse claim was when this lawsuit was filed by the appellees.

We have traditionally required a higher degree of proof when one cotenant seeks title by adverse possession against another cotenant. In the case of Bowlin v. Keifer, 246 Ark. 693, 440 S.W. 2d 232 (1969), we emphasized the principles of law that apply to such a case.

... In order for possession of a tenant in common to be adverse to that of his cotenants, knowledge of the adverse claim must be brought home to them directly or by such notorious acts of unequivocal character that notice may be presumed. Griffin v. Solomon, 235 Ark. 909, 362 S.W. 2d 707. Stronger evidence is required when a family relationship exists than in other cases. McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714; Ueltzen v. Roe, 242 Ark. 17, 411 S.W. 2d 894. The burden of proof was upon appellee. Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809. . . .

The appellees have failed to demonstrate any hostile act or acts that could place the appellants or their predecessors in title on notice that their claim, evidenced by deed of record, was being taken from them without compensation by virtue of the right called adverse possession.

It was never intended that the law of adverse possession be used to give someone something that is unjustified. The law of adverse possession is intended to be a tool to solve title disputes, cure legal defects and settle boundary line disputes. It has been used by the appellees in this case to take something that does not belong to them rightfully or legally. With all due respect to the majority, I submit that the law was misinterpreted by the trial judge, not applied by the majority, and I would reverse and dismiss the decree of the chancellor.

I am authorized to state that Harris, C.J., and Fogleman, J., join in this dissent.


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

text:
    Johnnie Eugene COCKMAN v. WELDER’S SUPPLY COMPANY and HOME INSURANCE COMPANY
    78-326
    580 S.W. 2d 455
    Opinion delivered April 30, 1979
    (In Banc)
    [Rehearing denied May 29, 1979.]

      Pearce & Robinson and Richard L. Mattison, for appellant.

      Lowe & Hamlin, and Tom Forest Lovett, P.A., for appellees.
   Frank Holt, Justice.

Appellant, injured when a grinding disc he was using disintegrated or exploded, brought suit to recover damages for strict liability, breach of warranty, and negligence against appellee Welder’s, a retail distributor of grinding discs, and Gulf States Abrasive Manufacturing Co., the manufacturer. Home Insurance Company, the workmen’s compensation carrier for appellant’s employer, Benton Crawler Works, intervened. The suit against Gulf States was settled and dismissed prior to trial by agreement of the parties. At the conclusion of appellant’s case, appellee Welder’s motion for a directed verdict was granted. Appellant asserts the court erred. We hold the court was correct.

In the determination of a court’s correctness in directing a verdict, we take the evidence and all reasonable inferences most favorable to the party against whom the verdict was directed and, if there is any substantial evidence tending to establish an issue in favor of that party, it is error to take the case from the jury. Daniels v. Chicago, R.I. & Pac. R.R., 256 Ark. 874, 511 S.W. 2d 175 (1974); and Barrentine v. The Henry Wrape Co., 120 Ark. 206, 179 S.W. 328 (1915).

Appellant states that, since the proof necessary to impose liability on the theory of strict liability or implied warranty of merchantability is essentially the same, he will discuss his evidence in terms of strict liability although his evidence also demonstrates the appellee’s liability for breach of warranty. He argues that he met his burden of proof of presenting a factual issue as to strict liability by demonstrating a defect in a product through circumstantial evidence, citing Higgins v. General Motors Corp., 250 Ark. 551, 465 S.W. 2d 898 (1971). There, although we did not judicially recognize the theory of strict liability in tort, in discussing a party’s burden when suing for damages under that theory, we said:

In the absence of direct proof that the product is defective because of a manufacturing flaw or inadequate design, plaintiff must negate the other possible causes of failure of the product for which the defendant would not be responsible in order to raise a reasonable inference that the dangerous condition existed while the product was still in the control of the defendant.

Subsequently, our legislature recognized strict liability by enacting Ark. Stat. Ann. § 85-2-318.2 (Supp. 1977), which provides:

A supplier of a product is subject to liability in damages for harm to a person or to property if:
(a) the supplier is engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product;
(b) the product was supplied by him in a defective condition which rendered it unreasonably dangerous; and
(c) the defective condition was a proximate cause of the harm to person or to property.

Appellant argues that he had adduced sufficient evidence to show that the grinding disc was supplied by the appellee distributor in a defective condition which rendered it unreasonably dangerous, and its defective condition was the proximate cause of his injuries.

Appellee Welder’s is engaged in the business of selling and distributing grinding discs and other supplies. It supplied appellant’s employer with this grinding disc in August, 1973. From the time of appellant’s employer’s receipt of the disc, 10 months previously, to the date of appellant’s injury, the disc was stored, hanging on a nail, in an area of the shop in which there were no activities which would disturb the disc. According to the shop foreman, who was present every day, the disc had not been disturbed although the area was open to the public. The foreman had properly attached the disc to the grinding machine the night before appellant’s use and resulting accident. It had not been used previously. Normally, it would last through several days of continuous use before wearing out. Appellant was using the disc properly and had, at the time of his injury, been using it for only 20 or 30 minutes when it unexpectedly exploded. According to appellant’s expert witness, the disintegration was not caused by a malfunction of the grinding machine, and the machine was running smoothly at a speed less than that recommended as the maximum for the disc. He could find nothing that indicated a manufacturing defect. He felt that, sometime after its manufacture, a defect had been injected into the disc. Appellee’s method of transporting the discs, loose in its truck, was mot a proper or desirable way to transport the discs. All safety guidelines concerning the handling of abrasives, including grinding discs, were designed to prevent them from receiving any sort of shock by bouncing around or into one another. The disc would be subject to damage if struck an impact blow. When the witness was presented with a hypothetical question containing assumptions of the recited evidence, which included that the disc was transported loose in the trailer of a truck when delivered by appellee, the disc had been stored undisturbed for 10 months after purchase from appellee by appellant’s employer, and it was mounted and used properly, it would be his opinion that the disc was defective when sold and delivered by appellee Welder’s to appellant’s employer.

On cross-examination as to the basis of his opinion, this witness admitted that he had made a previous report to the insurance compensation carrier, the intervener, that “[i]n summary, f find no conditions with either the air grinder or the grinding disc that would have caused this accident,” based upon an examination of the disc fragment. This was still his conclusion at the time he testified at trial; he was not able to tell the jury “with any real certainty that it was defective when it was delivered [by appellee] on August 9 or 8”; it was beyond his ability to make a determination as to why the disc exploded; it was also beyond his ability to determine that the disc was defective when it was delivered by appellee to appellant’s employer; since the disc fragmentized, a defect occurred at some point in time; however, it was beyond his ability to determine when the defective condition was injected; he had no information whereby he could “with reasonable certainty” form an opinion that the disc was not properly manufactured or at the time of delivery to appellee and by appellee to appellant’s employer “it had a defect or did not have a defect;” and finally, he could not “arrive at a conclusion to any reasonable degree of certainty whether it [the disc] was defective or not.”

In Ark. State Highway Comm.'n. v. Byars, 221 Ark. 845, 256 S.W. 2d 738 (1953), we said:

Whether there is substantial evidence to support a verdict is not a question of fact, but one of law. Because a witness testifies as to a conclusion on his part does not necessarily mean that the evidence given by him is substantial, when he has not given a satisfactory explanation of how he arrived at the conclusion.

There we reiterated that “to support a verdict the evidence must be of a convincing nature, imparting qualities of reasonable certainty.” See also Sadler v. Scott, 203 Ark. 648, 158 S.W. 2d 40 (1942); and St. Louis Southwestern Ry. Co. v. Braswell, 198 Ark. 143, 127 S.W. 2d 637 (1939). In Kapp v. Sullivan Chevrolet Company, 234 Ark. 395, 353 S.W. 2d 5 (1962), we reiterated that “[c]onjecture and speculation, however plausible, cannot be permitted to supply the place of proof.”

Appellant’s burden of demonstrating a fact issue was dependent upon his expert’s testimony. In summary that witness admitted there was nothing in his examination of the disc fragment which would lead him to a conclusion with any reasonable degree of certainty that the disc was defective when sold by the appellee to the appellant’s employer. It was beyond his ability to say why the disc exploded. Viewing appellant’s evidence most favorably, we cannot say that it negates all possibilities sufficiently to remove the asserted issue of liability from the realm of speculation and conjecture so as to entitle him to have the question presented to the jury.

Appellant next argues, with respect to negligence, that he adduced sufficient evidence on the issue of proximate causation. We have said that proximate cause must be proved, as a fact, by circumstantial or direct evidence, and not by speculation or conjecture. Superior Forwarding Co. v. Garner, 236 Ark. 340, 366 S.W. 2d 290 (1963). In an action for negligence, the evidence is sufficient to show proximate cause if the “facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred.” St. Louis-San Fran. Ry. Co. v. Bishop, 182 Ark. 763, 33 S.W. 2d 383 (1931); see also Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W. 2d 4 (1948). Here, although there was evidence that the explosion of the disc caused appellant’s injuries, there was no evidence from which it could be fairly inferred that any action by appellee Welder’s was the proximate cause of the exploding disc and appellant’s resulting injuries. Appellant’s evidence as to proximate cause is not sufficient to remove it from the realm of conjecture or speculation.

Affirmed.

Byrd and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. For the reasons stated in the majority opinion I must respectfully dissent. The work load has apparently overtaken my brothers on the Court because they have in this opinion seated themselves in the jury box instead of on the bench.

It amazes me that we stated in Higgins v. General Motors Corp., 250 Ark. 551, 465 S.W. 2d 898 (1971) that if we had strict liability in a case like this we would approve it, then the General Assembly enacted Ark. Stat. Ann. § 85-2-318.2 (Supp. 1977) to cover the subject, and now we say we really didn’t mean what we said in Higgins. The statute has been set out in the majority opinion and in the interest of brevity will not be repeated.

There is no dispute that appellee was the supplier of the product which proximately caused appellant’s injury. Neither is it disputed that the supplier was engaged in selling this product nor that the defective condition was the proximate cause of the harm to appellant.

After setting out an almost perfect case against appellee, the majority then turn around and quote from a decision “to support a verdict the evidence must be of a convincing nature, importing qualities of reasonable certainty.” This, I contend, is for the jury to decide.

I find no fault in the law as stated by my brothers but I strongly disagree with the results reached. All we know about the manufacturer is that the case was dismissed. There is not a speck in the record which speaks of a settlement having been reached. It should not make any difference in this case how the manufacturer got out of the case. Maybe appellant thought his proof against them was no more than conjecture or speculation and the best strategy was to go against a single defendant.

Appellant’s expert found the grinder on which the disc was used not to be defective. The shop foreman testified that the disc had been properly stored and correctly attached to the grinder. Appellant’s witnesses effectively negated any defect occurring after the disc was delivered by appellee. The expert testified, eseentially, as follows:

I did examine the disc fragments that were brought me. Assuming that Johnnie Cockman on May 30, 1974, was injured at his place of employment when a grinding disc exploded; that the disc was a 9 inch by 1 /4 inch type 27 grinder disc, type 27 which means depressed center wheel mounted on a portable grinding machine; that a previously unused disc was mounted even before the accident; that it had not been used; that it was first utilized for 20 to 30 minutes on the morning of the accident; that the disc was purchased August 9, 1973 from a truck operated by Welder’s Supply; that the discs were carried loose on the trailer of the truck; that it was transported after it leaves Malvern to the Benton Crawler Works in Benton; that it was stored after purchase in a storage area of Benton Crawler Works and was not disturbed from the time of purchase until the day before the accident happened when it was mounted on the machine; that it was properly mounted and attached and was being used flat against the track of a crawler type dozer to remove or smooth down excess welding material; that it was not put into a bin; that the grinder did not over-rev as Í have previously testified, it is my opinion that the disc was defective and was defective when sold by Welder’s Supply Company.
It is my opinion that if it was properly used and so forth and since there was no problem with the grinder, the only opinion I can derive is that the disc was defective. And that it was defective when delivered by Welder’s Supply to Benton Crawler Works.

This testimony, when considered with his testimony that he could find no defect in the manufacturing process, clearly carries possible liability to the supplier and the purchaser.

The purchaser’s witnesses at least made a case for the jury against appellee when they testified that the disc was not damaged while in custody of the purchaser. The testimony also pointed to the driver for the seller by showing he hauled the disc in a manner likely to cause a defect. Any type of major impact would probably inject a defect into the disc thereby rendering it likely to explode when placed into service or use.

My brothers misinterpret the expert’s testimony when he testified that he could find no manufacturing defect and that he could find no defect in the grinder and further that he could not say with any “real certainty” that it was defective when delivered by appellee. Of course, he could not say it was defective when delivered. Only a fool would so testify to such under the circumstances. All he was saying was that he found no defect in the manufacture of the disc nor in the grinder. This left only two other probabilities: It was damaged by the seller or the purchaser. He had no knowledge of how it was handled by the parties except for the testimony offered by the witnesses. However, the purchaser’s witnesses eliminated him by showing exactly how it was stored and handled before use.

I need not cite authority for the proposition that we are supposed to give the evidence its strongest probative force when reviewing a directed verdict. The expert’s testimony, standing alone, created a jury question as to the seller and purchaser although the purchaser was not a named defendant because his liability was limited to worker’s compensation benefits.

Appellant offered substantial evidence, whcch, if believed by the jury, would meet every element set out in Ark. Stat. Ann. § 85-2-318.2 regarding strict liability. Therefore, I ask whether or not we meant it when we stated in Higgins:

In the absence of direct proof that the product is defective because of a manufacturing flaw or inadequate design, plaintiff must negate the other possible causes of failure of the product for which the defendant would not be responsible in order to raise a reasonable inference that the dangerous condition existed while the product was still in the control of the defendant.

Apparently the majority still holds that even after enactment of the strict liability statute a plaintiff still may not recover on circumstantial evidence. I do not so interpret the law or the decisions made in the past.

For these reasons, and many more, I would reverse and remand with directions to allow the jury to decide the fact questions, assuming, at least, the same amount of circumstantial evidence is presented at the new trial.

I am authorized to state that Byrd, J., joins me in this dissent.


text:
    Michael Joe McGUIRE v. STATE of Arkansas
    CR 79-7
    580 S.W. 2d 198
    Opinion delivered April 30, 1979

      Niblock & Odom and Ronald M. McCann, for appellant.

      Steve Clark, Atty. Gen., by.Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged with capital felony murder, convicted by a jury, and sentenced to life imprisonment. He first asserts for reversal that the search of the automobile, in which he was riding and in which the guns were found, was illegal, and therefore, the guns, as evidence, should be suppressed. He argues that none of the exceptions justifying a search without a warrant was present. Appellee responds that the warrantless search was justified by a valid consent. We agree with the appellee.

Appellant and a Jim Davis, local residents, had been questioned by the police on March 25, 1978, about the shooting death two days earlier of Ronald P. Snodgrass. The victim’s car was found at a local tavern. Appellant and Davis admitted they were at the tavern on the day of the alleged offense. Davis worked there. Davis told an officer his fingerprints might be found on the victim’s car and that he possessed a .38 caliber pistol similar to the one used to kill Snodgrass. The two men became the focus of the police investigation concerning the murder. On March 26, Officers Tedford and Ward received orders to further question the two men. The officers began observing a local residence, recognized the two suspects as they and another individual exited the residence and left in a car. The officers followed the car to a local shopping center parking lot where, instead of parking, they drove or circled around looking and acting nervous. The officers stopped the car intending to question Davis further. As Officer Ward walked toward the rear of the car, he observed appellant straighten and make some sort of movement. The officer looked in the rear window and noticed that appellant had his hand under a coat in the rear seat. Officer Tedford observed the handle of what appeared to be a weapon in the front seat occupied by Davis. Officer Tedford got appellant and Davis out of the car. Barnett, the driver, was asked if the officers could look in the back seat and he responded that they could. When Ward raised the coat in the rear seat where McGuire had been sitting, he discovered a .38 caliber pistol. Davis then told the officer that there was another gun in the front seat. It was found to be a .38 caliber pistol. Both guns were fully loaded. Appellant and Davis were put under arrest and transported to the police station where appellant was read his rights and interrogated. Appellant gave a statement indicating that he and Davis had been picked up by Snodgrass while hitchhiking and that appellant had driven the victim’s car to the place where his body was later found. There Davis talked about shooting Snodgrass and taking his car. Appellant stayed near the car while Davis walked the man into the woods. Appellant heard one shot, after which Davis returned and told appellant to “get the hell out of here.” Appellant and Davis burned the victim’s billfold. In another statement, appellant said he told Davis to tie the man up rather than shoot him and that Davis had taken both guns.

Here Barnett, the driver of the car in which appellant and Davis were passengers, readily gave his consent to a search. According to him, he had nothing to hide. Appellant argues that under Moore v. State, 262 Ark. 27, 551 S.W. 2d 185 (1977), and Bumpers v. North Carolina, 391 U.S. 543 (1968), the search was unreasonable, based on the fact that Barnett was not informed that he did not have to consent to the search and gave his consent thinking that the car would be searched anyway since there were four officers present. We first note that there were only two officers present at the time Barnett gave his consent to search. Second, proof of knowledge of the right to refuse consent is not a necessary prerequisite to demonstrating voluntary consent. Enzor v. State, 262 Ark. 545, 559 S.W. 2d 148 (1977).

The determination of whether consent was voluntary or coerced can be made only by analyzing all the circumstances of that consent. Enzor v. State, supra; and King v. State, 262 Ark. 342, 557 S.W. 2d 386 (1977). Here Barnett was clearly not coerced into giving his consent for the officers to search the car he was driving. We cannot say the finding of the trial court that the consent was valid is clearly erroneous. See State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139 (1978).

Appellant next asserts that the officers did not have probable cause to arrest him, making the arrest and subsequent search and interrogation illegal. First, we note that the search of the automobile took place prior to appellant’s arrest. Since we find that the court’s ruling as to the validity of that search was not erroneous, the officers properly seized the two fully loaded guns. Ark. Stat. Ann. Vol. 4A, Rules of Crim. Proc., Rule 4.1 (a) (iii) (Repl. 1977) provides that an “officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed any violation of law in the officer’s presence.” Most courts agree that there is no difference in the terms “reasonable cause” and “probable cause.” Commentary to Article IV, Ark. Rules of Crim. Proc.; Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975). We have said that “[t]he substance of all definitions of probable cause is a reasonable ground for belief of guilt.” Williams v. State, supra. Probable cause exists where facts and circumstances within the officer’s knowledge and of which he has reasonably trustworthy knowledge are sufficient in themselves to warrant a man of reasonable caution to conclude that an offense has been or is being committed. Brinegar v. U.S., 338 U.S. 160 (1949). We reiterated in Holmes v. State, 262 Ark. 683, 561 S.W. 2d 56 (1978), that probable cause “need not be tantamount to that degree of proof sufficient to sustain a conviction.” Its determination is based upon factual and practical considerations of reasonable and prudent men rather than on those of legal technicians. Sanders v. State, 259 Ark. 329, 532 S.W. 2d 752 (1976). There we also said that applicable standards allow honest, common sense judgments by officers in their determination of probable cause. Ark. Stat. Ann. § 41-3151 (Repl. 1977) makes it unlawful for a person to carry a weapon if he possesses a handgun in certain situations, including possession “in a vehicle occupied by him, . . . with a purpose to employ it as a weapon against another person.” There is a presumption that a loaded pistol is placed in a car as a weapon. Clark v. State, 253 Ark. 454, 486 S.W. 2d 677 (1972); Stephens v. City of Ft. Smith, 227 Ark. 609, 300 S.W. 2d 14 (1957).

Here appellant and Davis were the prime suspects in the investigation of a murder which had taken place only a few days prior to their being stopped with the two fully loaded guns. In the totality of the circumstances, then, the officers, upon finding the guns, one possessed by appellant, had probable cause to 'arrest appellant for unlawfully carrying a weapon. The arrest being valid, we find no merit in appellant’s contention that evidence obtained through the search and the later interrogatories was inadmissible because it was “fruit of the poisonous tree.” The court properly denied appellant’s motion to suppress.

Appellant contends that the court erred in refusing to allow him to call Davis, his codefendant, to the witness stand for purposes of identification and also in not allowing Davis to appear in the courtroom as a physical exhibit to the sheriff’s testimony for purposes of identification. Appellant’s and Davis’ cases were severed for trial. Davis’ counsel invoked the 5th Amendment and the court refused to compel him to testify. Appellant argues that this prejudiced him by depriving the jury of viewing Davis whose size was relevant to the issue of duress. Appellant says he was coerced into not reporting the crime because of threats by Davis. Appellant described Davis as being 6’5“ and weighing 220 to 250 lbs. Appellant weighs 135 lbs. Ark. Stat. Ann. § 28-1001, Rule 401 (Supp. 1977), defines “relevant evidence” as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Here the evidence of duress did not bear on the issue of appellant’s guilt or innocence of the offense charged but, rather, bore only upon why appellant had not reported the crime. There was no assertion made that appellant was coerced into committing the offense. Even if Davis ’ size was relevant and admissible, appellant testified, without objection, as to Davis’ size in comparison with himself. Therefore, Davis’ absence as a witness was not prejudicial and at most harmless ercpr. Kimble v. State, 246 Ark. 407, 438 S.W. 2d 705 (1969).

As required by Ark. Stat. Ann. § 43-2725 (Repl. 1977) and Rules of Crim. Proc., Rule 36.24, we have reviewed the entire record and find no errors prejudicial to appellant.

Affirmed.

We agree: Harris, G.J., and Fogleman and Hickman, JJ-

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur with the results reached but object to part of the language in the majority opinion. The opinion apparently states it is unlawful to carry a handgun. The cases cited by the majority predate the Criminal Code, Acts of 1975, No. 280. In my opinion, Rule 4.1 does not authorize an arrest for carrying a handgun because it is not a violation of the law unless intent to use it as a weapon against a person is proven. There was no such proof as is required by Ark. Stat. Ann. § 41-3151 (Repl. 1977). Neither is it shown that the possession of the handguns was in violation of Ark. Stat. Ann. § 41-3111 (Repl. 1977).

Therefore, I fear the majority opinion might be used later to support the theory that possession of a handgun for a person’s own protection is in violation of the law. Such interpretation is clearly erroneous. Furthermore, there is no need for this language because the consent to search has already been found.