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

text:
    Colleene B. PARK, Margaret B. “Polly” SMITH, W. T. BUCK, Sr. and Malcolm BUCK v. Conway GEORGE, Personal Representative of the Estate of Myrtle ROGERS
    83-292
    667 S.W.2d 644
    Supreme Court of Arkansas
    Opinion delivered April 2, 1984
    [Rehearing denied May 7, 1984.]

      Wilson, Engstrom & Vowell, for appellants.

      Lightle, Beebe, Raney & Bell, for appellee.
   John I. Purtle, Justice.

The probate judge for Prairie County admitted a will to probate over appellants’ objections that it was procured by undue influence and that the testator lacked mental capacity. Appellants argue here that: 1) the court erred in not shifting the burden of proof; 2) the court erred in allowing an expert witness to testify; and 3) the trial court’s findings were clearly erroneous. We agree that the court erred in placing the burden of proof on the contestants thereby creating prejudicial error. Since the case was fully developed and we review it de novo we hold the will to be invalid.

Myrtle Rogers was 88 years of age when she executed the will here in question, on July 22, 1982. This date was her second day jn the hospital. She died on August 4, 1982, and a petition to probate her will was filed on the same date. The case was heard by the probate judge on April 26 and 27, 1983. The weight of the testimony and evidence presented at the trial is the subject of this appeal.

W. B. “Buster” Guthrie and James Thweatt were associated in the practice of law. They prepared the will and procured its execution. Guthrie was a beneficiary in the will in the amount of $10,000. On the day the will was executed the attorneys obtained a check from the decedent in the amount of $7,000 for the purpose of, among other things, defending the will in a court contest which was expected. Also, Guthrie had been the recipient of a previous $7,000 check from the appellant which was a gift to him for making a down payment on a house. In addition to the above Guthrie received $5,000 for the purchase of a copying machine to copy certain abstract of title records. The records were never copied and Guthrie kept the machine. During the three years preceding decedent’s death Guthrie had collected at least $19,500 in attorney’s fees in addition to the items above mentioned. Guthrie so controlled the decedent’s life that he determined whom she would be allowed to see and visit with and who would not be allowed in her presence. He obtained a restraining order against Colleene Park, Malcolm Buck, W. T. Buck, Sr. and others to prevent them from seeing the decedent. This was done before he took decedent from the psychiatric ward at St. Vincent’s Infirmary in Little Rock without authorization by the attending physician. Guthrie had been named as a beneficiary in one or more of the previous wills, including the one dated November 20, 1981, which was the last one before the one here under consideration. He also represented the decedent in two prior actions in which some of the appellants sought to have a guardian appointed for her on the grounds of senility or other mental incapacity. In one case, P-82-15, Dr. J. T. Williams, Jr., M.D., executed an affidavit in favor of appointing a guardian. Dr. Williams stated that Myrtle Rogers was unable to take care of herself or to manage her financial affairs. He stated she suffered from cerebral arterial insufficiency and certain other disease processes, including arteriosclerosis and the aging process. The affidavit was filed on July 12, 1982, ten days prior to the execution of the will under consideration.

Dr. Williams testified at the trial that he thought the testator was competent to execute the will dated July 22, 1982; that he had been her physician for 25 years; that he did not observe any mental confusion on the part of the testator at noon on the day she executed the will; that she had been given morphine about 5:00 a.m. the same day; and that the reason he executed the affidavit to have a guardian appointed for the decedent was because he thought she should not live alone.

Witnesses who observed the testator at the hospital during her final stay generally stated she was rational part of the time. On the day the will was executed Colleene Park and two other appellants tried to visit her in the hospital but were told by the nurse they could not see her. Park stated they talked to Dr. Williams at the hospital about 1 p.m. and he told them the decedent was heavily sedated and he would not even allow an attorney to visit her. The medication nurse at Mercy Hospital, who was on duty on the day the will was executed, stated she observed the decedent between 5 and 6 p.m. on July 22, 1982, and that the decedent had pulled the I. V. from her arm and removed the heart monitor electrodes attached to her body. The nurse said she helped get her back into the bed but that the testator kept asking, “Have I signed something that I shouldn’t have?” The testator appeared very upset and confused. This nurse refused to be a witness to the execution of the will. Finally, it was her opinion the decedent was oriented about half of the time.

Nurse supervisor Roberts testified that decedent was out of touch with reality while she was hospitalized in July of 1982. He thought there were periods of time when she may have been lucid but such periods lasted only five or ten minutes. Immediately after the will was signed she seemed alert but later on the same afternoon she was out of her bed after disconnecting the I. V. and heart monitor. It was at this time that she kept asking, “Have I signed something I shouldn’t?” Late in the afternoon or early evening she had to be quieted with demerol. At 7:00 p.m. she was quieted and resting. He thought she was mentally confused and out of touch with reality during most of the time she was in the hospital.

None of the testimony of witness Roberts was heard by Dr. Doug Brown, who later testified that the testator was competent during this period of time.

Dr. Doug Brown was allowed to testify over the appellants’ objection on grounds that it would be unfair because he had not heard the direct testimony of witness Roberts. In essence Dr. Brown testified that he thought there was no basis from a psychological perspective to consider Myrtle Rogers incompetent as psychologist Dr. Douglas Stevens had done.

Dr. Stevens, a clinical psychologist, went to a nursing home in Des Arc on June 11, 1982, for the purpose of testing the testator’s competency. He gave her certain tests and reviewed her medical history, including nursing notes indicating she was “crying, wandering, incontinent, soiled herself with feces, and later had a large bowel movement on the floor.” Dr. Stevens recommended that she be transferred to St. Vincent’s Infirmary and this was done. It was shortly after this when attorney Guthrie by his own authority took her out of St. Vincent’s. Stevens spent about six hours with her on June 11, but she did not recognize him the next morning. The nurses at St. Vincent’s indicated the testator would get lost between the nurses’ station and her room which was three doors away. Dr. Stevens concluded she was senile, had a child-like behavior, had an I.Q. of 94, and was out of touch with reality. He stated: “At no time did her lucidity even begin to approach that level that would be necessary for competence in the real world ...” It was his opinion that she did not have the requisite mental capacity to execute a will on July 22, 1982.

Various relatives and friends testified as to the testator’s condition. Their descriptions of her condition ranged from fully alert to completely disoriented. Without detailing more testimony it is fair to state the other testimony was about equally divided with perhaps the most of it indicating the decedent was generally incompetent.

During the trial the court held that it was the duty of the contestants to prove that the decedent did not have the requisite legal capacity to execute this will. At commencement of the trial the proponents’ attorney stated it was his duty to present the will and the witnesses to the will before the burden shifts. The court agreed and contestants’ attorney stated he had no objection to letting the proponents’ witnesses go until the next day. There was a stipulation that the testatrix had executed a previous will on November 20, 1981.

Appellants first argue the court erred in placing the burden of proof on them. They argue that after it was shown that the attorney preparing the will was the beneficiary of a $10,000 bequest the presumption that the will was invalid arose and it became the burden of appellee to prove the will was not a result of undue influence and that the testatrix was mentally competent. The will named Thweatt and Guthrie as attorneys to represent the estate and they were paid $7,000 in legal fees at the time she executed the will. Two of the primary beneficiaries of the will were represented by Thweatt at that time. The two witnesses to the will were secretaries for the lawyers. The four persons connected with the law offices in Des Arc and Hazen were present in the hospital room in Brinkley when the will was executed. Myrtle was awakened from her sleep by Guthrie and she signed the will without reading it after Guthrie read parts of it to her.

In Greenwood v. Wilson, 267 Ark. 68, 588 S.W.2d 701 (1979) we held that the proponent of a will who is a beneficiary and who drafted the will or caused it to be drafted has the burden to prove beyond a reasonable doubt that it was not the result of undue influence and that the testator had the mental capacity to make the will. We again held in Smith v. Welch, 268 Ark. 510, 597 S.W.2d 593 (1980) that where a beneficiary procures the making of a will, “it is incumbent upon those who, in such a case, seek to establish the will, to show beyond reasonable doubt, that the testator had both such mental capacity, and such freedom of will and actions as are requisite to render a will legally valid.” Uniform Rules of Evidence Rule 301 (a) speaks to presumptions and states that the party against whom the presumption is directed has the burden of proving the nonexistence of the presumed fact is more probable than its existence.

At the time the will was executed Margaret George, one of the beneficiaries of the will, was a client of James Thweatt. He represented Margaret George in her efforts to get Bill Hall appointed guardian of the testatrix. Hall petitioned to be appointed guardian to handle decedent’s affairs because he thought she was not competent to do so. Attorney Guthrie certified the answer of Rogers to the first petition for appointment. On the other hand Thweatt represented Margaret George on her petition to have Hall appointed guardian. It appears the two associated attorneys were on opposing sides until Guthrie had the decedent join in the Hall request for appointment as guardian. Either Margaret George or Bill Hall, another beneficiary, called Guthrie and reported testator’s deteriorating condition. Guthrie stated he took Thweatt to the hospital to protect him from possible harm from appellants whom he had enjoined from visiting the decedent. Margaret George was at bedside when Guthrie awoke Myrtle Rogers from her sleep and read a part of the will to her. By this time Guthrie and Thweatt’s two secretaries had arrived and became witnesses to the execution of the will. Margaret George’s bequest was greatly increased at the expense of the appellants who had been named beneficiaries under the prior will. Neither the medical staff nor Dr. Williams were consulted prior to execution of the will.

The new will still contained the bequest to Guthrie. The share of Thweatt’s clients was greatly increased and a fee of $7,000 was paid to the lawyers at the time the will was signed. Therefore, Guthrie was benefitted by the new will as were Bill Hall and Margaret George. Having procured the execution of the will they had the burden of proving beyond a reasonable doubt that the testatrix was not unduly influenced and possessed the mental capacity to execute the will.

The court ruled from the bench that the opponents had failed to carry their burden of proof when it stated:

I don’t think there is any question that the contestants of the will do have the burden of proof that Myrtle Rogers did not have the requisite legal capacity to execute the will . . . and the will will be admitted to probate.

Even though the court erroneously placed the burden of proof as to undue influence and requisite mental capacity upon the opponents of the will the testimony was all entered into the record. In reaching this conclusion we have necessarily decided the proponents of the will procured its execution or were beneficiaries thereunder. Therefore, the will under consideration is declared void.

Reversed.

Adkisson, C.J., Smith, George Rose, J., and Hickman, J., dissent.

Darrell Hickman, Justice,

dissenting. The majority has succumbed to the temptation to retry this case. The fact that we review a case de novo from the probate court does not mean that we substitute our judgment for that of the judgment of the trial court. The legal argument made on appeal that the trial court applied the wrong legal standard regarding the burden of proof, was not presented to the trial court and is presented to us for the first time. I cannot say from the record what standard the trial court applied; therefore, I can only examine his findings to see if they are clearly wrong. ARCP Rule 52. I cannot say he was wrong from this record. There is an abundance of testimony that could be recited, if we were of a mind to, to justify upholding the probate judge’s finding that the proponents of the will met their burden of proof. There was strong testimony that the testatrix was of sound mind, knew exactly what she was doing, and was not influenced in any way by those alleged to have influenced her. The role of W. B. Guthrie is insignificant, because in either will he was to receive the same bequest.

Adkisson, C.J. and George Rose Smith, J. join.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Arkansas v. Tracy ZIEGENBEIN
    CR 83-140
    666 S.W.2d 698
    Supreme Court of Arkansas
    Opinion delivered April 2, 1984

      Steve Clark, Atty. Gen., by: Randel Miller, Asst. Atty. Gen., for appellant.

      Hoofman cir Bingham, P.A., by: Clifton H. Hoofman, for appellee.
   Robert H. Dudley, Justice.

The General Assembly enacted the Omnibus DWI Act of 1983 on March 21, 1983. See Ark. Stat. Ann. § 75-2501 et seq. (Supp. 1983). The act contains an emergency clause which provides it is immediately in effect. On April 8, 1983, the respondent was charged under a 1953 act, Ark. Stat. Ann. § 75-1027 (Repl. 1979), with driving while intoxicated. After being found guilty in municipal court the respondent appealed to circuit court. The prosecutor did not attempt to amend so that the respondent would be charged under the 1983 act. Nevertheless, the circuit court held the 1983 act was not in force on the date of the offense and, instead of trying respondent under the 1953 act, dismissed the case. The state appeals in order to seek a correct and uniform administration of the criminal law. A.R.Cr.P. Rule 36.10 (b) and (c). We reverse the circuit court and, since there was neither an acquittal nor a reversal in the circuit court, we reinstate the judgment of conviction from the municipal court and remand to the circuit court for further proceedings. See A.R.Cr.P. Rule 36.11. Jurisdiction is in this court under Rule 29 (1) (c).

The 1983 act contains the following language: “The provisions of this act do not apply to offenses committed prior to the effective date of this act. Such offenses shall be construed and punished in accordance with the law existing at the time of the commission of the offense.” Ark. Stat. Ann. § 75-2501 (b) (Supp. 1983). See also Ark. Stat. Ann. § 1-103 (Repl. 1976). The circuit court found that the 1983 act was not in effect on the date of the offense but dismissed the case. However, the primary legal issue before us concerning the uniform administration of the criminal law is whether the emergency clause of the Omnibus DWI Act of 1983 is valid.

Amendment Number 7 to the Constitution of Arkansas reserves to the voters the power to reject any act of the General Assembly. In order to make this power viable the amendment provides that an act is not effective until ninety days after adjournment unless immediate operation of the act is essential to preservation of the public peace, health and safety. In that exigent situation, after the two-thirds vote of both houses and a statement in a separate clause of the facts constituting the emergency, an act may be put into immediate effect. The General Assembly declared that the Omnibus DWI Act of 1983 should be put into immediate effect. The respondent contends that no condition or fact was stated in the emergency clause which, if ignored, would imperil the public peace, health and safety. We find no merit in the argument.

The emergency clause at issue provides:

It is hereby found and determined by the Seventy Fourth General Assembly that the act of driving a motor vehicle while under the influence of intoxicating alcoholic beverages or drugs constitutes a serious and immediate threat to the safety of all citizens of this State, and that increasing the penalty for this dangerous conduct may serve as a deterrent to such behavior. Further, it is found that increased income derived from the levying of such penalties can best be utilized to provide immediate alcohol and drug safety and rehabilitation and treatment programs both to prevent an increase in the use of intoxicating alcoholic beverages and drugs and to rehabilitate persons convicted of related offenses. Therefore, an emergency is hereby declared to exist, and this Act being necessary for the immediate preservation of the public peace, health, and safety shall be in full force and effect from and after the date of its passage and approval.

We first omit from consideration the provision about increased income from the levying of penalties because the Omnibus DWI Act of 1983 does not provide for any increased income. That provision is contained in a separate act. See Ark. Stat. Ann. § 75-2531 (Supp. 1983).

We do consider the recitations that driving while intoxicated constitutes a serious and immediate threat to the public safety and that increasing the penalty may serve as a deterrent to this serious and immediate problem. All fair-minded and intelligent men would surely agree that driving while intoxicated constitutes a serious and immediate threat to the public safety. Fair-minded and intelligent men might reasonably differ as to the truth of whether increased penalties may serve as a deterrent and might reasonably differ as to the sufficiency of that statement as a basis for declaring an emergency. Flowever, the recitations serve as a sufficient basis for a valid emergency clause because we do not disturb a finding by the General Assembly that a particular fact comprises an emergency if the fact is recited and if fair-minded and intelligent men might reasonably differ as to the sufficiency and truth of the recited fact as a basis for declaring an emergency. Jumper v. McCollum, 179 Ark. 837, 18 S.W.2d 359 (1929); Mann v. Lowry, 227 Ark. 1132, 303 S.W.2d 889 (1957). Thus, the emergency clause is valid. The Omnibus DWI Act of 1983 was effective on March 21, 1983.

The circuit court’s dismissal of the municipal court conviction is reversed, the conviction is reinstated, and the case is remanded to the circuit court for further proceedings. Upon remand, if the state does not amend the charge, the circuit court must reverse and dismiss the municipal court conviction since the 1953 act was repealed before appellee was arrested. If the state does ■amend the charge to the 1983 act, the appellee must be afforded a de novo trial under the 1983 act.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because I do not believe there was a valid emergency. If we were to recognize there was actually no emergency it would not affect in any manner a single charge of DWI against anyone. The new DWI law expressly preserved the old law until the new comes into being. The major difference in the two is in the penalty.

In Gentry v. Harrison, 194 Ark. 916, 110 S.W.2d 497 (1937) this court considered an emergency clause tacked onto a bill by the General Assembly which abolished the combined office of Insurance Commissioner and Fire Marshal. The emergency clause was as follows:

It is hereby found and declared that the regulation of the business of insurance is a function of the state government and necessary for the preservation of the public peace, health and safety, and that therefore an emergency exists, and this act shall take effect immediately upon its passage and approval.

This court held that no emergency was stated and declared the clause invalid. Prior to the adoption of Amendment 7 to the Constitution of Arkansas, the legislature had developed a habit of attaching emergency clauses to almost all legislative acts. Gentry v. Harrison, supra. Amendment 7 sought to stop the use of emergency clauses when there was no emergency when it stated: “If it shall be necessary for the preservation of the public peace, health and safety that a measure shall become effective without delay, such necessity shall be stated in one section ... It shall be necessary, however, to state the fact which constitutes such emergency

The replacement of existing legislation with new but similar legislation can hardly be declared an emergency. The new DWI law is certainly an attempt to deal with the same problem the old DWI laws dealt with. The problem has existed as long as automobiles have been driven upon our streets and highways. The facts stated in this emergency clause are nothing more than a restatement of the problem which is recognized by all who have an interest in the subject.

At the time of the trial in this case it was apparently obvious that the new act had not made any impression that it was helping to solve the old problem because no evidence was introduced to that effect. Every factual statement in this emergency clause was true long before the first DWI law was passed. An emergency has been described as “unforeseen occurrence, sudden and urgent occasion for action . . . pressing necessity, crisis, dilemma, quandary, last-minute need, eleventh hour obligation . . .” The Synonym Finder, (J.I. Rodale ed. 1961).

We do not accept the facts stated in an emergency clause as being an emergency merely because it so states or because it serves a necessary function.

In the recent case of Henderson v. Russell, 267 Ark. 140, 589 S.W.2d 565 (1979) we found an emergency clause to be ineffective. We held that although the emergency clause stated facts declared to be an emergency, an emergency did not exist. I think the same rule applies here. I think fair minded and intelligent people would agree that the factual recitations in this emergency clause stated nothing more than facts which have existed for many years.


author: P. A. Hollingsworth, Justice.

text:
    George E. MARSHALL v. Charles R. SINGLETON, Director, Alcoholic Beverage Control and The STATE of Arkansas
    84-6
    666 S.W.2d 399
    Supreme Court of Arkansas
    Opinion delivered April 2, 1984

      Gibson Law Firm, by: John F. Gibson, Jr., for appellant.

      Donald R. Bennett, for appellee.
   P. A. Hollingsworth, Justice.

On March 25, 1983, the appellant, George E. Marshall, filed an application for a retail liquor permit in Drew County. Act 812 of 1983 imposing a quota system on liquor permits had been passed by the legislature and submitted to the Governor for his approval. Marshall was advised that if the Bill was signed, with the emergency clause, on March 25, 1983, then his application would be returned to him. The Governor signed the Act on March 25, and the application was subsequently returned to the appellant. Marshall then filed a petition for declaratory judgment with the Pulaski County Chancery Court, attacking the validity of the emergency clause for violating Amendment 7 to the Arkansas Constitution. The trial court denied the Appellant’s petition, and this appeal was filed. Jurisdiction is in this Court under Rule 29 (1) (c).

The chancellor found that the emergency clause states sufficient grounds for an emergency and that a retail liquor permit is not within the meaning of Amendment 7 to the Arkansas Constitution which prohibits adoption of emergency clauses dealing with privileges.

We reverse.

Amendment 7 to the Constitution of Arkansas reserves to the voters the power to reject any act of the General Assembly. In order to make this power viable, the amendment provides that an act is not effective until ninety days after adjournment unless immediate operation of the act is essential to preservation of the public peace, health and safety. Amendment 7 further states: “Provided, however, that an emergency shall not be declared on any franchise or special privilege or act creating any vested right or interest or alienating any property of the State.”

We omit from consideration the words “vested right” or “interest” since a liquor license can be revoked at any time. Matthews v. Bailey, 198 Ark. 830, 131 S.W.2d 425 (1939). Furthermore, the Act does not alienate any property of the State of Arkansas. The issue before us then is to determine whether a liquor permit in a “franchise” or “special privilege.” We have previously stated that a license to sell liquor is a privilege. Blum v. Ford, Comm’r of Revenues, 194 Ark. 393, 107 S.W.2d 340 (1937).

Black’s Law Dictionary (4th edition) defines “franchise” as “a privilege or immunity of a public nature, which cannot be legally exercised without legislative grant;” and “special privilege” as “a right, power, franchise, immunity, or privilege granted to, or vested in, a person or class of persons, to the exclusion of others, and in derogation of common right.”

Act 812 of 1983 expands Ark. Stat. Ann. § 48-301 (Repl. 1977) by further restricting the issuance of liquor permits. Under the Act, the number of permits in any county or political subdivision may not exceed a ratio of one permit for every 2500 population residing in that county or subdivision. Drew County, where the appellant applied for a permit, already has the maximum number of permits for a county of that size. The effect of the Act, therefore, is to establish a special privilege for people residing in the more populous counties, to the exclusion of others. Therefore, we hold that because a special privilege is created, the emergency clause appended to the Act is unconstitutional. We therefore reverse and instruct the chancellor to grant the appellant’s petition for a declaratory judgment. Our holding makes it unnecessary to reach the appellant’s second argument which concerns the actual content of the emergency clause.

Reversed.


author: Per Curiam.

text:
    Joel McDANIEL v. STATE of Arkansas
    CR 84-18
    666 S.W.2d 400
    Supreme Court of Arkansas
    Opinion delivered April 2, 1984

      Petitioner, Pro Se.

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petitioner Joel McDaniel was convicted by a j ury of possession and delivery of LSD and sentenced to a term of 15 years imprisonment in the Arkansas Department of Correction. Probation of a four and one-half year suspended sentence on an earlier conviction was also revoked. The Court of Appeals affirmed the LSD conviction but reversed and remanded the revocation decision. McDan iel v. State, CACR 83-10 (June 29, 1983). Petitioner now seeks permission to proceed in circuit court for post-conviction relief pursuant to A.R.Cr.P. Rule 37.

Petitioner first alleges that his trial attorney was ineffective in that his pretrial investigation was inadequate. He contends that counsel should have (1) confirmed the exact location of the drug sale; (2) examined the prosecutor’s file; (3) taken the deposition of the state’s witnesses; and (4) found out that petitioner had been under surveillance at the time the drug sale was made. To prevail on the allegation that counsel was ineffective in failing to prepare an adequate defense, petitioner would have to show by clear and convincing evidence that he was prejudiced by counsel’s failure to act and that the prejudice was such that he was denied a fair trial. Hill v. State, 278, Ark. 194, 644 S.W.2d 282 (1983). Petitioner has not demonstrated that he was denied a fair trial. He offers very little factual support for the allegations. Essentially he is arguing that there was evidence that could have been produced and ways to influence the jury to a verdict favorable to the defense if counsel had employed better trial strategy. Matters of trial strategy, however, are open to debate by experienced counsel and are not grounds for relief under our postconviction rule. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). A showing of improvident strategy, mere error, omission or mistake will not suffice to establish counsel’s incompetence. Leasure v. State.

A police informant testified that she went to petitioner’s grandmother’s house on the night of the drug sale. Petitioner alleges that counsel should have objected to the testimony and asked for a continuance or mistrial on the ground that her testimony was a “surprise tactic.” He has attached the affidavits of three witnesses who he alleges were available to testify that he was not at the house and that the informer did not go there. Three policemen testified that petitioner was at the house. Counsel called four witnesses who testified that petitioner was at his brother’s house when the informant said he was with her. The decision to call some witnesses and not others is a tactical one within the realm of judgment of counsel. Hill v. State; Swindler v. State, 272 Ark. 340; 617 S.W.2d 1 (1981). The mere fact that other witnesses could have testified does not mean that counsel was ineffective in not seeking a continuance to secure their testimony.

With regard to the three affidavits and two others that petitioner has attached to his petition, it appears that the affidavits are at least in part intended to be new evidence to be made a part of the record. If this is petitioner’s intention, Rule 37 was not designed as a means to add evidence to the record. See Chisum v. State, 274 Ark. 332, 625 S.W.2d 448 (1981).

Petitioner next alleges that his wife was not allowed to use the “evidence folder” when she testified. It is not clear from the record to what folder petitioner refers, but the allegation appears to be that counsel had a folder with documentary evidence to support petitioner’s alibi defense but the evidence was ruled inadmissible on the ground that the documents did not appear on the defense list of items to be introduced at trial. While petitioner contends that counsel was remiss in not seeing to it that the evidence was admissible, he fails to state specifically what evidence was excluded. The conclusory allegation that it would have supported petitioner’s alibi does not warrant an evidentiary hearing.

Petitioner asserts that counsel lacked the customary skill of a competent attorney in the area of witness examination. He cites several questions that could have been asked which would have elicited favorable evidence. Like the calling of witnesses, the questioning of witnesses is a matter of trial tactics and strategy about which competent attorneys could disagree. Rule 37 does not provide a forum for dissecting counsel’s examination of witnesses. See Leasure v. State.

When petitioner testified in his own behalf, counsel asked him whether he had used marijuana in the past. He replied that he had tried it once or twice, but on cross-examination he conceded that he had a prior conviction involving marijuana. Petitioner now alleges that counsel advised him that the state could not bring up the previous conviction unless the subject of prior drug use was raised on direct examination. He contends that he would not have taken the stand had he known that the prior conviction would be brought to the jury’s attention. When an accused takes the stand he may be asked as a means of attacking his credibility whether he has been convicted of a crime, unless the probative value of the testimony does not outweigh its prejudicial effect. Unif. R. Evid., Rule 609. The question of whether the accused should take the stand is a difficult one, particularly where the accused has been previously convicted of a crime. Ordinarily, it is a question of trial strategy and outside the purview of Rule 37, but in petitioner’s case he is alleging that counsel gave him erroneous advice about the rules of evidence and thus caused him to testify to a fact that prejudiced him. As with all allegations of ineffective assistance of counsel, petitioner must demonstrate by clear and convincing evidence not only that counsel’s conduct prejudiced him but that it denied him a fair trial. This is a heavy burden which petitioner has not met. The purpose of Rule 609(a) is to allow the witness’s credibility to be impeached. Floyd v. State, 278 Ark. 342, 645 S.W.2d 690 (1983). The rule does not permit proof of an earlier crime merely to bolster the prosecution’s case by showing that the accused is of bad character and likely to commit other crimes. Jones v. State, 274 Ark. 379, 625 S.W.2d 471 (1981). Here, petitioner’s credibility may have been affected adversely by his testimony, but the effect was not so prejudicial that it tainted his entire trial to the degree that the proceeding was unfair. Even if petitioner would have been better off not taking the stand, mere mistakes on counsel’s part do not establish the denial of a fair trial. Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).

Petitioner’s final allegation concerns comments made by the prosecutor in closing argument that petitioner was a dope dealer, his witnesses were dope smokers and his wife was willing to lie to gain his acquittal. Defense counsel reminded the jury that it had been instructed that closing argument was not evidence. Counsel went on to take issue with the state’s characterizations of petitioner, his wife and his witnesses. It was for the jury to decide whether the evidence justified the inferences drawn by both the defense and the prosecution.

Petition denied.


author: Richard B. Adkisson, Chief Justice.

text:
    Harold J. CRAIL and Darlene CRAIL v. NORTHWESTERN NATIONAL INSURANCE CO.
    83-271
    666 S.W.2d 706
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984

      Jonathan P. Shermer, Jr., for appellant.

      Laser, Sharp ir Huckabay, P.A., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellants, Harold and Darlene Crail, had been injured in an automobile accident and were paid $8,188.44 pursuant to the no fault provisions of an automobile policy issued to appellant’s employer by appellee, Northwestern National Insurance Co. Contrary to the terms of the policy, appellants were assured by appellee’s agent, James R. Ford Insurance Company, that they would not have to refund the money when they received an expected settlement from the tortfeasor. Relying on this assurance, appellants accepted and spent the money. When appellants received the settlement, appellee sued them for reimbursement of the $8,188.44 payment.

A jury found that the James R. Ford Insurance Company, as agent, had apparent authority to bind its principal, appellee, and that appellants had detrimentally relied on that apparent authority. A verdict was returned in favor of appellants, but the Yell County Circuit Court granted appellee judgment notwithstanding the verdict. On appeal we reverse.

The question of whether an agent is acting within the scope of his actual or apparent authority is a question of fact for the jury or trier of fact to determine. Rowland v. Gastroenterology Associates, P.A., 280 Ark. 278, 657 S.W.2d 536 (1983); Babbitt v. Gordon, 251 Ark. 1112, 476 S.W.2d 795 (1972). A trial court may enter judgment notwithstanding the verdict only if there was no substantial evidence to support the jury verdict. McCuistion v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980). We must review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party against whom the judgment notwithstanding the verdict was entered. Westside Motors v. Curtis, 256 Ark. 237, 506 S.W.2d 563 (1974).

An employee of the James R. Ford Insurance Company testified that she told appellant, Harold Crail, that he would not have to return the money before she handed him the checks issued by appellee in the amount of $8,188.44. She further testified that the James R. Ford Insurance Company had authority to accept premiums, issue binders, change names on a policy, add or delete a named insured, change the amount of coverage, and change automobiles on a policy. We conclude that such authority is consistent with our previous description of a general agent with apparent authority to bind its principal. Dixie Life and Accident Ins. Co. v. Hamm, 233 Ark. 320, 344 S.W.2d 601 (1961). The testimony of the employee of the James R. Ford Insurance Company was such that the jury could find the agency had apparent authority to bind its principal, the appellee.

The remaining question is whether there was substantial evidence to support the jury finding that the appellants relied to their detriment on the apparent authority of the James R. Ford Insurance Company. Appellant, Harold Crail, testified that, in reliance upon the statement of the employee of the James R. Ford Insurance Company, he spent the money received from appellee for medical bills, living expenses while out of work, the purchase of a vehicle, and the purchase of a business partnership. If there is any substantial evidence to support a finding of fact by the jury, the trial court may not enter a judgment notwithstanding the verdict. McCuistion v. City of Siloam Springs, supra.

Reversed.

Hays, J., dissents.


author: Richard B. Adkisson, Chief Justice. John I. Purtle, Justice,

text:
    Mattie Malinda BELL v. Glen Carlton BELL
    84-14
    666 S.W.2d 708
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984

      Howell, Price & Trice, P.A., for appellant.

      Boyett, Morgan & Miller, P.A., for appellee.
   Richard B. Adkisson, Chief Justice.

This appeal was certified to this Court by the Court of Appeals pursuant to Rule 29(4)(b) as an issue of significant public interest. Appellant, Mattie Malinda Bell, and appellee, Glen Carlton Bell, were married on March 10, 1967, and lived together until they separated on April 16, 1982. Shortly after their marriage, appellant’s parents conveyed a home to the couple in tenancy by the entirety. Less than a year later, appellee conveyed his interest in the home by quit-claim deed to appellant. The home remained solely in appellant’s name. She put it up as security for appellee to purchase a business, and the couple had partly paid off the debt by the time of the divorce. The Prairie County Chancery Court found the conveyance of the home from appellee to appellant did not constitute a gift, and thus the home was marital property, its value to be distributed one half to each party. On appeal appellant argues that the chancellor’s finding of no intent to make a gift was clearly against the preponderance of the evidence. We affirm.

On appeal the findings of a chancellor will not be reversed unless clearly against the preponderance of the evidence, and, since the question of preponderance of the evidence turns largely on the credibility of the witnesses, we properly defer to the superior position of the chancellor. Hayse v. Hayse, 4 Ark. App. 160-B, 630 S.W.2d 48 (1982). Here the chancellor found that the quitclaim deed was not a gift from appellee to appellant but a device by both parties to ensure that appellee’s former wife and children would have no claim on the property. Under the circumstances of this case, where during the marriage, both parties considered the home as joint property, we cannot say the chancellor’s finding was clearly against the preponderance of the evidence.

Affirmed.

Purtle and Hollingsworth, JJ., dissent.

John I. Purtle, Justice,

dissenting. I cannot understand how the majority reach their decision on the facts presented in this case. Clearly the home was a gift from appellant’s parents. No one would suspect the home would have been given in both names if there was any thought that the parties would later divorce. Parents often make gifts to their children and in order to be polite they include the name of the in-law. In this case after the wife’s parents gave them the property the husband deeded it to his wife. The deed remained in the wife’s name from March 6, 1968, to the date of this action. The property had been in her name more than seven years before Act 705 of 1979 became effective and 15 years prior to the divorce decree.

When the divorce was tried the husband then contended he only placed the property in his wife’s name for the purpose of keeping his former wife and his children from making claims against it. Any person with a little intelligence and some education would know that his former wife and children could not take the property his present wife’s parents had given them. It seems to me that if he intended to pull a fraud on his former wife he is now hoisted by his own petard. This very same court stated in Fullerton v. Fullerton, 233 Ark. 656, 348 S.W.2d 689 (1961):

“[W]e have held that a husband who conveys land to his wife in fraud of creditors, is not permitted to invoke the assistance of equity in setting aside the deed, for he does not come into equity with clean hands.”

That was not the only case in which this court refused to lend assistance to set aside a fraudulent conveyance to a wife. See Melvin v. Melvin, 270 Ark. 522, 606 S.W.2d 90 (Ark. App. 1980) and McClure v. McClure, 220 Ark. 312, 247 S.W.2d 466 (1952). A conveyance made in an effort to defraud creditors is still binding between the parties. Maupin v. Gains, 125 Ark. 181, 188 S.W. 552(1916).

If the home was conveyed to the wife as a gift it is still binding on the appellee. Where the husband voluntarily conveys property to his wife, or causes it to be conveyed to her, it is presumed to be a gift, even if he uses his own money to purchase the property. Mayers v. Lark, 113 Ark. 207, 168 S.W. 1093 (1914). This court also stated in Fullerton v. Fullerton, supra:

We have many times held that where a husband purchases and pays for lands, taking the deeds therefor in the name of his wife, there is a presumption of a gift to her.

I see no need to cite additional authority because the law is quite plain. It needs no further comment by me. I will end by pointing out that we also have a statute, Ark. Stat. Ann. § 50-413 (Repl. 1971), which I think requires a reversal of this case. The statute is as follows:

Deeds between husband and wife. — Any deed of conveyance of real property located in this State, executed after the passage of this act [§§ 50-413, 50-414] by a married man directly to his wife or by a married woman directly to her husband, shall be construed as conveying to the grantee named in such deed the entire interest of the grantor in the property conveyed, or the interest specified in the deed, as fully and to all intents and purposes as if the marital relation did not exist between the parties to such deed. [Acts 1935, No. 86, § 1, p. 212; Pope’s Dig., § 1866.]

There is no necessity for me to explain this statute because it speaks for itself. Just for good measure read Sandidge v. Sandidge, 212 Ark. 608, 206 S.W.2d 755 (1947).

Hollingsworth, J., joins in this dissent.


author: George Rose Smith, Justice. George Rose Smith, Justice, P. A. Hollingsworth, Justice,

text:
    William E. BEAUMONT, Jr. and Jo GROWCOCK v. Tommy ROBINSON et al
    83-264
    668 S.W.2d 514
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984
    [Supplemental Opinion on Denial of Rehearing May 21, 1984.]

      House, Wallace & Jewell, P.A., by: David M. Hargis and Wm. David Duke, for appellants.

      Hilburn, Calhoon, Forster, Harper ir Pruniski, Ltd., by: Phil Campbell and Robert L. Roddey, for Robinson, Bowman, Zoller and Evans.

      Tom Forest Lovett, P.A., by: Mel Sayes, for Pulaski County.

      Hollingsworth, J., would grant rehearing.

   George Rose Smith, Justice.

On March 22, 1982, William E. Beaumont, Jr., the county judge of Pulaski County, was arrested at his office in the county courthouse by the county sheriff, Tommy Robinson, and by a deputy sheriff, Mark Bowman, was handcuffed, and was taken to the county jail, where he was booked on charges of obstructing governmental operations and resisting arrest. A few minutes later Judge Beaumont’s assistant, Jo Growcock, the county comptroller, was arrested by deputy sheriffs Nick Zoeller and Dennis Evans, handcuffed, and taken to jail, where she was charged with obstructing governmental operations. Both Beaumont and Mrs. Growcock were released on their own recognizance after having been booked. On April 16 they were tried in municipal court upon the charges against them and were acquitted.

Judge Beaumont and Mrs. Growcock then brought this action against the Sheriff, the three deputies, and the county itself, seeking compensatory and punitive damages on the ground that the plaintiffs’ civil rights had been violated by the defendants, acting under color of law, contrary to 42 U.S.C.A. § 1983 (1981). The county was joined as a defendant on the allegation that Robinson was its chief law enforcement officer, so that his acts represented the county’s official policy.

The jury, after hearing about 40 witnesses, was able to reach a decision as to some of the asserted causes of action but not as to all. Specifically, the jury found that Zoeller, Evans, and Pulaski County were not liable to either plaintiff. Mrs. Growcock had taken a nonsuit as to Bowman. The jury found that Beaumont was not entitled to punitive damages against Robinson or Bowman and that Mrs. Growcock was not entitled to punitive damages against Robinson. The jury was unable to decide whether compensatory damages should be awarded to Beaumont against Robinson, to Beaumont against Bowman, or to Mrs. Growcock against Robinson.

The trial court entered judgment dismissing with prejudice all the causes of action finally determined by the jury. The court declared a mistrial as to the undetermined causes of action for compensatory damages. The two plaintiffs have appealed. They argue, first, that owing to the incomplete verdicts there should be a new trial as to all defendants upon all the issues, and second, that various asserted errors in the trial also entitle them to a new trial.

The plaintiffs’ proof tended to show that the sheriff and his deputies were in the wrong in making the arrests. There was evidence that Sheriff Robinson had repeatedly overspent his budget as fixed by the quorum court. Federal Judge George Howard had found conditions at the county jail to be below constitutional standards and had appointed Kenneth Basinger as a special master to supervise the operation of the jail. Four days before the plaintiffs were arrested, Robinson had evicted Basinger from the jail, told him not to return, and expressed his own intention not to obey the orders of the federal court. When the sheriff and the deputy sheriffs came to the courthouse on March 22, they demanded that their purchase requisitions (requests for money from the county) be processed at once. They were told that Basinger would have to approve the requests. The evidence was in conflict about whether Beaumont resisted arrest, but the plaintiffs’ theory was essentially that when they refused to honor the requests for funds they were wrongfully arrested for obstructing governmental operations. After the plaintiffs had been arrested and released they went to the federal court, where Robinson was held to be in contempt of court and put in jail.

The appellants first insist that they are entitled to a new trial as to all parties and all issues, because the verdicts were incomplete. Absent other reversible error, this argument cannot be sustained. The judge properly instructed the jury, in the language of AMI 105 and 106, that the plaintiffs’ claims should be treated as separate suits and that each defendant’s case was to be decided separately as if each were a separate suit. AMI Civil 2d (1974). Hence, subject to the possibility of error prejudicial to the appellants, the jury has settled the issues as between the plaintiffs and three of the defendants, Zoeller, Evans, and the county.

The appellants are right, however, in contending that they are entitled to a new trial with respect to both compensatory and punitive damages as against Robinson and Bowman, despite the jury’s verdicts in favor of those defendants as to punitive damages. Each plaintiff has essentially only one cause of action against each defendant, even though that cause of action may embrace both compensatory and punitive damages. See, by analogy, St. Louis, I.M.& S. Ry. v. Hix, 101 Ark. 90, 141 S.W. 492 (1911). Hence the general rule, that a partial verdict as between two adverse parties cannot stand, is controlling. Martin v. Romes, 249 Ark. 927, 462 S.W.2d 460 (1971). The trial court’s entry of judgment upon the partial verdicts must be reversed.

Second, the proffered testimony of Dr. Venus that had Robinson made adjustments in his expenditures in 1981 there would have been no need for the layoff of deputies in that year, was properly excluded. We fail to see how that earlier incident would have shown malice on Robinson’s part in making the arrests, and in other respects the proffered testimony dealt with matters of law, such as Robinson’s authority to set a policy for the county.

Third, we agree with appellants’ argument that a deputy prosecuting attorney should not have been permitted to testify on a point of law: whether there was probable cause for the plaintiffs’ arrest when the municipal court charges were tried. The only objection, however, was that it was unfair to ask the witness for an opinion without presenting all the facts to her. That objection did not raise the point now argued; so reversible error is not shown.

The fourth point hardly merits discussion. That officer Zoeller questioned the employment of Mrs. Growcock at a meeting nine months after her arrest had no real probative value in showing malice on the officer’s part in making the arrest. That proffered testimony was correctly excluded.

As their fifth point the appellants group three minor arguments relating to incidents that are said to have had a cumulative prejudicial effect. We fail to see how this is true. First, after the trial had been recessed one afternoon until the following morning, a belly dancer appeared in a corridor near the courtroom and danced, apparently to wish the sheriff a happy birthday. As far as the record shows, the incident was extraneous and had no effect on the trial. Second, a defense lawyer suggested at one point that the plaintiffs’ attorney might be disqualified, because he had represented the county in other matters. The court at once admonished the jury to disregard the matter. There was no immediate request for a mistrial, and all further references to the incident were between counsel, out of the presence of the jury. Third, Robinson’s discovery deposition was introduced in evidence during the questioning of another witness, but only one paragraph was read to the jury. Apparently by accident, the deposition was taken by the jury into the jury room. Since neither side has abstracted whatever may have been in the deposition, we have no basis for holding that the appellants’ case against Zoeller, Evans, and the county was affected one way or the other.

Delivered May 21, 1984

Sixth, the appellants complain of the trial judge’s failure to give three requested instructions. No error is shown, for none of the instructions would have been of material assistance to the jury. Number 11 would have told the jury that “Congress shall make no law abridging the freedom of speech.” Counsel do not explain how the arrests affected the plaintiffs’ right to freedom of speech. Number 24 is a rambling charge about the county’s liability for the acts of its policy-making officials, but we find in it nothing specific enough to have been of any help to the j ury. Number 29, dealing with the duties of the county judge, added nothing of consequence to number 28, which was given.

Affirmed in part, reversed in part, and remanded for a new trial as to the liability of defendants Robinson and Bowman.

Supplemental Opinion on Denial of Rehearing

George Rose Smith, Justice,

on rehearing. In order that counsel may fully understand the reasons for our decision, we think it best to discuss briefly two points argued in their petition for rehearing.

First, in connection with the deposition that accidentally reached the jury room, counsel argue that we were in error in saying that the deposition had not been abstracted. Our statement was not inaccurate. The deposition was not summarized in the appellants’ abstract, as required by Rule 9 (d). Counsel now point out that a few sentences from the 56-page deposition were contained in an appendix to the appellants’ brief. Such attachments of printed or typewritten exhibits do not comply with our rules. Such exhibits should be abstracted along with the other testimony. See our per curiam order of February 13,1978, which is copied in full three separate times in the Bobbs-Merrill compiler’s notes to our rules, immediately after Rules 8, 9, and 11. Ark. Stat. Ann., Vol. 3A (Repl. 1979).

Second, it is argued that proffered Instruction Number 24 was a correct statement of the law, because it was taken in part from the opinion in Monell v. Department of Social Services, 436 U.S. 658 (1978). Nevertheless, the instruction was properly refused. It was, as we said in our opinion, a rambling charge that contained nothing specific enough to be of any help to the jury. There is no AMI instruction on this particular subject. That being true, any proffered instruction must be “simple, brief, impartial, and free from argument.” AMI Civil 2d, p. xiii (1974). Instruction Number 24 was not simple. It was not brief. It was not impartial. It was not free from argument, in that most of it dealt with matters not touched upon by the testimony in the case.

Rehearing denied.

Hollingsworth, J., dissents.

P. A. Hollingsworth, Justice,

dissenting. I would grant the rehearing based upon the petitioners’ second point that the excluded testimony of Dr. Charles Venus is vital and Instruction Number 24 is the law.

The United States Supreme Court in Monell v. Department of Social Services, 436 U.S. 658 (1978), first held that a local government may be sued under 42 U.S.C. § 1983. The Court stated: !

[W]hen execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury then the government as an entity is responsible under § 1983. 436 U.S. at 695.

I concur with the majority except for their conclusion on Instruction Number 24.1 would allow it to be given.


author: George Rose Smith, Justice.

text:
    Haskell BROWN and Odell BROWN, his wife v. Doreen MEEKINS
    83-289
    666 S.W.2d 710
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984

      Stripling ir Morgan, by: Dan Stripling, for appellants.

      Stephen E. James, P.A., for appellee.
   George Rose Smith, Justice.

In this adoption proceeding the probate court granted the petition of the appellee, Doreen Meekins, to adopt her ten-year-old stepson, Kenneth Ray Meekins, and also granted visitation privileges to the appellants, Haskell and Odell Brown, who are the child’s maternal grandparents, their daughter (the child’s mother) having died in 1978. The grandparents appeal, arguing that the court had no jurisdiction to enter the adoption decree. The stepmother cross-appeals, arguing that the court had no jurisdiction to grant visitation privileges. The case comes to us as a second appeal. Rule 29 (1) (j); Brown v. Meekins, 278 Ark. 67, 643 S.W.2d 553 (1982). We affirm the trial court’s decree.

The appellee’s petition to adopt her stepson, filed in March, 1982, was accompanied by the written consent of the petitioner’s husband (the child’s father) and by the written consent of the child. At the hearing in chambers, however, on July 8,1983, the ten-year-old child testified that although he had said earlier that day that he agreed to the adoption, he had changed his mind and wanted to live with his grandparents. Counsel for the grandparents, without offering any testimony, moved for a “directed verdict,” apparently meaning a judgment on the petitioner’s proof. The court denied the motion, stating: “The Court holds that he has consented.” The probate judge took the case under advisement and in the following month announced his decision in a memorandum that included these findings:

From the circumstances existing in this matter, the Court could easily see that this long drawn out legal hassle as between the maternal grandparents, parent, and stepparent, was a contributing factor, possibly, for the child’s problems in school and discipline. . . .
There is a place in the life of every person for a grandparent, but by the same token this does not mean that the grandparents should not accept their role in the child’s life. The Court is concerned that even though the respondents, grandparents, have been granted special visitation, more than the paternal grandparents, they persist in still being active in litigation as to causes this father has determined as being best for his child. . . .
It is time for this child to have a stabilized home life, and this child and the testimony convince me beyond a reasonable doubt that a proper condition exists with his father and stepmother. The Court recognizes the circumstances surrounding this consent of the minor, and the pressures this child was under. The Court dispenses with the consent of this ten year old and feels confident that it would be in his best interest and for this child’s benefit that the petition for adoption be granted.

A few days later the trial judge signed the decree now before us.

On direct appeal the grandparents argue only that the trial court had no jurisdiction to approve the adoption, because the adoption statutes require the consent of the minor, if more than ten years of age, “unless the Court in the best interest of the minor dispenses with the minor’s consent,” and also specify that the minor’s consent be “in the presence of the court.” Ark. Stat. Ann. §§ 56-206 (a) (5) and 56-208 (a) (1) (Supp. 1983). It is insisted that the consent of this ten-year-old boy was so essential that it had to be made at the hearing and could not be dispensed with by the court a month later.

We decline to construe the statute in such an unreasonable way. The consenting minor’s age may vary from ten up to eighteen. Unquestionably the trial judge has the authority to attach more weight to the decision of a minor almost of full age than to that of a ten-year-old. Moreover, a trial court has control over its judgments for a period of ninety days. ARCP Rule 60 (b). We think that in this case the trial judge would have abused his discretion if he had not dispensed with the child’s consent while the matter was still before the court for final aciton.

There remains the cross appeal. The chancery court in 1980 had, by agreement of the parties, granted these grandparents specified visitation rights, pursuant to a 1975 statute allowing such a court order in favor of the parents of the deceased parent of a child. Section 57-135 (Supp. 1983). Until 1983 the matter of visitation was not to be considered in an adoption proceeding, but Act 324of 1983, effective July 3, 1983, provides that when, as here, a parent dies and a later husband or wife of the surviving parent adopts the child, the court granting the adoption may grant the grandparents (parents of the deceased parent) reasonable visitation rights. Section 56-215 (b) (Supp. 1983).

This matter was originally set for a hearing on June 9, 1983, but the judge continued the case until July 8 for the declared purpose of deferring it until the 1983 law went into effect. On cross appeal the appellee now argues that the court abused its discretion in granting the continuance and also that the 1983 act cannot be applied retroactively to a matter that was pending before the act took effect.

We hold that the trial court was right. The vital point is whether the act can be applied retroactively, for if so the court could have deferred the matter by hearing it as scheduled on June 9 but taking the case under advisement just as he actually did. We see no objection to the new statute’s being applied to this case. The grandparents already had visitation privileges under the chancery court decree, which was put in the present record before the first appeal. Those privileges certainly remained in force until the probate court specified the same visitation privileges in the adoption decree. It is reasonable to believe that the legislature did not intend for a gap to exist in the continuity of visitation privileges granted by the chancery court and those granted in adoption proceedings in the probate courts.

The parties have not specifically addressed or briefed the question of whether visitation rights granted under the 1983 act in an adoption proceeding are subject to modification to meet changed conditions, as is the rule in the chancery court. We are not deciding that issue, for it is not really before us, but we do think it appropriate to say that we agree with the trial judge’s comments about these appellants’ abuse of their visitation privileges and warn them of the possibility that those privileges may perhaps be curtailed or withdrawn if their future conduct justifies the conclusion that such modification of the order would be in the child’s best interest.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Cooper LAND, Jr. and Mildred MATTHEWS v. ARKANSAS DEPARTMENT OF HEALTH and ARKANSAS STATE BOARD OF HEALTH
    83-283
    667 S.W.2d 651
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984
    [Rehearing denied May 14, 1984.]

      House, Wallace ir Jewell, P.A., by: Charles R. Nestrud, for appellant.

      Glover, Sanders, Parkerson ir Hargraves, by: Robert S. Hargraves, for intervenor.

      Steve Clark, Atty. Gen., by: George A. Harper, Special Asst. Atty. Gen., for appellee
   Robert H. Dudley, Justice.

The Highway 70 West Water Improvement District No. 31 of Garland County was formed to distribute water to a rural area west of Lake Hamilton. The record does not reflect whether there were objections to the formation of the District or whether there were objections to assessments, if any, for betterments. In June 1980, the District submitted a preliminary engineering report to the Arkansas Department of Health and, in it, sought approval of the Hot Springs Municipal Water Commission as the supplier of water. The Commission responded that it did not have enough surplus water to supply the needs of the District but an expansion of facilities was contemplated and the water could be supplied at a later date. In anticipation of the expansion program, the Hot Springs Commission and the District began to negotiate but were unable to reach an agreement. The District then submitted to the respondent Health Department an alternate plan for the construction and operation of a water treatment system to be located on the Big Mazarn tributary to Lake Hamilton. The Health Department preferred that the District purchase its water from the Hot Springs Commission. While continuing to encourage the District and the Commission to reach an agreement, the Health Department began a review of the alternative plan and found that it was in compliance with all applicable rules, regulations, and laws, and approved it.

Appellants, Land and Matthews, opposed the alternate plan. Their attorneys corresponded with and submitted information to the Health Department. Eventually, the Health Department approved the alternate plan. Appellants were then granted a hearing before the Arkansas State Board of Health. The respondents, the Health Department and the Board of Health, are assigned by statute the duty of protecting the public health and welfare of the state. See Ark. Stat. Ann. §§ 82-109 and 82-110 (Repl. 1976). The Board approved the alternate plan. Appellants then sought a writ of certiorari in circuit court. There, a full evidentiary hearing was conducted and the trial court held that the Board of Health had not acted arbitrarily since the District and the Hot Springs Commission had been unable to reach an agreement and the alternate plan was in substantial compliance with all applicable rules and regulations. We affirm. Jurisdiction is in this court under Rule 29(l)(c).

The appellants contend that, as a matter of law, the Health Department cannot approve the Big Mazarn water intake system. They argue that the “Ten States Standards” [for water] is an engineering standard which is incorporated by reference into the rules and regulations of the Department and those standards allow only the best available source of water and, they argue, this eliminates Big Mazarn. The argument is without merit. A rule or regulation, like a statute, is not considered as a reference regulation unless the unequivocal and inflexible import of the terms of the statute manifest the intent that it be considered as such. The only reference to the Ten States Standards is in Section XVIII, the rule requiring a preliminary engineering report before a system is approved. It is as follows:

Before detailed plans and specifications for new construction or major improvements are prepared, the owner or his authorized agent should submit to the Arkansas Department of Health a preliminary report containing data and information sufficient for the complete understanding of the proposed work. “Ten States Standards” is recommended as a guide.

The section plainly recommends the standards as a guideline for the preparation of the preliminary report. It does not recite a clear intent that the standards be adopted by reference and made a part of the regulations of the Health Department.

Appellants next contend that a federal act, the Safe Drinking Water Act, Pub. L. 93-523,88 Stat. 1660 (1974), and the implementing regulations, 40 C.F.R. § 142 (1983), are incorporated by reference into the Health Department’s regulations and together they mandate that the District obtain its water from the regional distributor, the Hot Springs Commission. One witness testified that the Health Department had adopted the federal act by reference but the regulations do not support his testimony. Section III of the regulations, in describing the required quality of water, does refer to the National Primary Drinking Water Regulations, which are the standards for water promulgated by the United States government. However, those regulations do not require water from a regional supplier. In addition, even if the Safe Drinking Water Act had been incorporated by reference into the Health Department’s regulations, it would not mandate the use of a regional supplier.

The decisions of the Department and of the Board are not clearly erroneous. See ARCP Rule 52. Two engineers testified that a sanitary survey was performed and the Big Mazarn site was found to be acceptable. The District’s engineer testified that the Hot Springs Commission’s rates would be from 38% to 109% higher than the District’s proposed rates with the use of the Big Mazarn site.

There is no merit in appellants’ argument that they were denied due process.

Affirmed.


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

text:
    SIMMONS FIRST NATIONAL BANK, Administrator of the Estate of Georgia HUCHINGSON, Deceased and Robert HUCHINGSON v. LIBERTY MUTUAL INSURANCE COMPANY and NORTHBROOK INSURANCE COMPANY
    83-293
    667 S.W.2d 648
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984
    [Rehearing denied May 14, 1984.]

      Jack D. Ruple, for appellant.

      Winslow Drummond, P.A., for appellees.

       Hickman, J., would grant rehearing.

   Robert H. Dudley, Justice.

The appellants brought suit in Saline County against a partnership of doctors which provided anesthesiological services used in the administration of anesthesia during surgery and Aireo, Inc., which manufactured an artificial breathing machine. Liability for compensatory damages was admitted both by the doctors and by Aireo. The jury awarded compensatory damages of $1,070,000 against the doctors and Aireo and punitive damages of $5,000,000 against Aireo. Appellee Liberty was Airco’s primary liability carrier with $2,000,000 in insurance coverage and appellee Northbrook was Airco’s excess carrier with $20,000,000 in coverage. The judgment was entered in Saline County on September 18, 1981. Airco’s attorney had notice on September 18, of the entry of judgment.

On September 21, 1981, within ten days from the entry of judgment, Aireo filed motions for a judgment notwithstanding the verdict and for anew trial. On October 19,1981, the trial court denied both motions and ordered Aireo to secure a supersedeas bond. The Judgment for compensatory damages was fully satisfied and, on October 26, 1981, a timely notice of appeal was given and on the next day, the 27th, the supersedeas bond was forwarded to the trial court in Saline County for approval.

On that same day, the 27th, the appellants filed this separate suit in Pulaski County contending that Ark. Stat. Ann. § 66-4001 (Repl. 1980) and Ark. Stat. Ann. § 66-5238 (Repl. 1980) entitled them to $360,000 as penalty, plus interest and attorney’s fee.

On July 12, 1982, this court affirmed the judgment for punitive damages rendered in Saline County. Airco, Inc. v. Simmons First National Bank, 276 Ark. 486, 638 S.W.2d 660 (1982). The Saline County award of punitive damages was satisfied on August 2, 1982, by payment of the judgment, interest and costs.

On September 14, 1982, the Circuit Court of Pulaski County ruled that appellants were not entitled to the statutory penalty, interest and attorney’s fee. We affirm. Jurisdiction rests in this court under Rules 29(l)(c) and (j).

Ark. Stat. Ann. § 66-4001 subrogates an injured party, or his or her personal representative, to the rights of an insured and, if the injured party recovers a judgment against the insured, and the j udgment is unsatisfied thirty days from the entry of judgment, the injured party may sue the insurer directly. The statute does not mention an attorney’s fee or a percentage penalty to be added to the claim. However, Ark. Stat. Ann. § 66-3238 provides a penalty of 12% and an attorney’s fee will be added to recovery when an insurer, after demand, fails to pay for an insured loss within the time specified in the policy.

A party who prevails under the subrogation statute, § 66-4001, may, in some circumstances, be entitled to the statutory penalty and attorney’s fee under § 66-5238. Trinity Universal Ins. Co. v. Stobaugh, 239 Ark. 746, 395 S.W.2d 24 (1965); Blevins v. Commercial Std. Ins. Companies, 544 F.2d 967 (1967). In Blevins and Stobaugh, the plaintiff sued the insurer following a judgment that went wholly unsatisfied against the insured. Significantly, the defendant insured did not appeal the initial judgment in either case. Here, the defendant timely pursued post-trial motions and then timely appealed the initial judgment. See Arkansas Rules of Appellate Procedure, Rule 4(a), (c) and (d).

The direct action statute, § 66-4001, gives an injured party a direct action against an insurer any time “such judgment remains unsatisfied at the expiration of thirty (30) days from the serving of notice of entry of judgment upon the attorney for the insured or upon the insured or upon the insurer.” Under the literal interpretation of this statute urged by appellant, any time a defendant sought to appeal, without first satisfying the judgment, the insurer would be subject to a direct action for penalty, interest and attorney’s fee. Other bizarre results would be reached under such interpretation. For example, assume that, on the thirty-first day after entry of judgment, the Saline County Circuit Court had granted the motion for judgment notwithstanding the verdict. The $3,000,000 judgment would have been unsatisfied for thirty days, and yet the appellants would be entitled to $360,000 penalty, plus interest and attorney’s fee for not satisfying a judgment which had been set aside. The same outlandish result would have occurred if we had reversed the Saline County case and the statute alone was literally construed as appellants ask. Such an interpretation would not only cause preposterous results but could open the door to collusion. Suppose the insured judgment debtor was bankrupt. Appellants’ suggested construction would enable the judgment debtor and the judgment creditor to delay a ruling on a post-trial motion and then appeal. More than thirty calendar days would have passed and the judgment creditor could reap a windfall penalty against an unsuspecting insurer.

This court gives effect to the intent of the General Assembly, even when the statute is not precisely worded. Steele v. Murphy Trustee, 279 Ark. 235, 650 S.W.2d 573 (1983). We do so with a common sense approach. Keith v. Barrow-Hicks, 275 Ark. 28, 626 S.W.2d 951 (1982). Common sense dictates that the General Assembly did not intend to impose a 12% penalty on an insurer for exercising its right to timely seek a new trial or timely obtain appellate review. Instead, the penalty nature of § 66-3238 is directed against unwarranted delaying tactics of insurers. Accordingly, we interpret the wording “. . . unsatisfied at the expiration of thirty (30) days from the serving of notice of entry of judgment ...” to mean thirty days from the entry of final judgment as described by Rule 4 of the Rules of Appellate Procedure. This construction will make symmetrical the direct action statute and the Rules of Appellate Procedure.

Affirmed.

Adkisson, C. J. and Hickman and Hollingsworth, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The majority gives various examples of what could happen, if it followed the law, to justify its deviation from a principle of law that has been followed by us since we began making decisions. That is, we give a statute its plain meaning and do not “interpret” the language unless it is vague or uncertain. Bank of Evening Shade v. Lindsey, 278 Ark. 132, 644 S.W.2d 920 (1983); Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977); Cross v. Graham, 224 Ark. 277, 272 S.W.2d 682(1954); Call v. Wharton, 204 Ark. 544, 162 S.W.2d 916 (1942); Johnson v. Lowman, 193 Ark. 8, 97 S.W.2d 86 (1936); Hopper v. Fagan, 151 Ark. 428, 236 S.W. 820 (1922); St. Louis, I.M. & S. Ry. Co. v. Waldrop, 93 Ark. 42, 123 S.W. 778 (1909); Wilson v. Biscoe, 11 Ark. 44, 6 Eng. 44 (1850). The majority concedes the statute is clear in this case, and I feel we are duty-bound to follow it.

Ark. Stat. Ann. § 66-4001 (Repl. 1980) plainly states an insured “may maintain a direct cause of action against the insurer issuing such policy for the amount of the judgment rendered against such insured, not exceeding the amount of the policy, provided such judgment remains unsatisfied at the expiration of thirty (30) days from the serving of notice of entry of j udgment upon the attorney for the insured or upon the insured or upon the insurer.”

I am not concerned with what might happen if we followed the statute; the fact is that the appellants did follow the statute. The appellees or their attorney overlooked the penalty and we should not avoid our duty to rectify the appellees’ error.

A final judgment was entered in this case, notice was given, and there is no legal reason or other good reason to make a change in the statute. I would respectfully suggest that the majority is looking for what it conceives to be a favorable result rather than enforcing the plain and clear language of the statute, which is what we are bound to do. The first time we interpret a statute is the time to do it right. I would follow our cases and the statute and reverse the judgment.

Adkisson, C.J. and Hollingsworth, J., join.


text:
    Della H. RUCKS v. Martha Kaye TAYLOR, Executrix of the Estate of Floyd Lester RUCKS, Deceased
    83-312
    667 S.W.2d 365
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984

      Honey & Rodgers, by: Danny Rodgers, for appellant.

      Eilbott, Smith, Eilbott & Humphries, by: Zachary Taylor, for appellee.
   Robert H. Dudley, Justice.

On August 6, 1979, Floyd Rucks and appellant Della Hornsby entered into an antenuptial agreement which provided that, in the event of the death of Floyd Rucks, appellant would inherit one-half of all property owned individually by Floyd Rucks. The couple was married and acquired title to a tract of land as tenants by the entirety. Floyd Rucks filed suit for divorce in December, 1979. It was denied. The couple resolved their differences and lived together until October, 1980 when they again separated and Floyd Rucks again filed for divorce. They executed a separation and property settlement agreement which provided that the tract owned by the couple should be sold at fair market value and the proceeds divided equally. Mr. Rucks died before the land was sold and before the petition for divorce was heard.

On May 5, 1981, appellee, the executrix of Rucks’s estate, filed suit seeking specific performance of the separation and property settlement agreement. Appellant counterclaimed and contended that she should be awarded the property by virtue of her survivorship of an estate by the entirety with Rucks. The trial court found the separation and property settlement agreement to be controlling, ordered the tenancy by the entirety converted to a tenancy in common, and ordered the property sold with the proceeds to be divided equally. The Court of Appeals affirmed the trial court. Rucks v. Taylor, Ex’x, 10 Ark. App. 195, 662 S.W.2d 199 (1983). We granted certiorari pursuant to Rule 29 (6). We affirm the Court of Appeals.

Appellant relies exclusively on Killgo v. James, Executrix, 236 Ark. 537, 367 S.W.2d 228 (1963). In Killgo, a separation agreement was argued to have converted an estate by the entirety into a tenancy in common. We focused on the language of the settlement agreement and held it insufficient to change the estate to a tenancy in common. The Killgo settlement agreement was as follows:

It is understood that the decree to be entered herein is to provide that Charlie C. Killgo is to have possession, use and control of the [home], together with the furniture therein, until such time as the parties to this case may agree on a sales price for such, at which time, on such agreement, the proceeds are first to be used to reimburse Charlie C. Killgo for all monies he has paid or will pay on the mortgage on same after date of August 1953, after which the balance of the proceeds is to be divided between the parties hereto equally.

We stated that “we cannot find one sentence or even one word, in the agreement or in the decree, to support the conclusion that the parties had an affirmative intention to bring about an immediate termination of the tenancy by the entirety.”

The language in the present agreement is distinguishable from the language of the Killgo agreement. The language of this agreement shows an intent to terminate all property rights between the parties with the signing of the agreement.

WHEREAS, it is the desire and intention of the parties that all rights, interest, liabilities, and relations, with respect to property and financial matters be finally and conclusively fixed and determined by this agreement in order to settle and determine in all respects and for all purposes their respective present and future property rights, claims and demands in such a manner that any action with respect to the rights and obligations, past, present, or future, of either party, with respect to the other, be finally and conclusively settled and determined by this agreement. [Emphasis ours.]

While the agreement was to be incorporated into a divorce decree, if any, it was not contingent upon their obtaining a divorce. The chancellor has jurisdiction over such agreements even in the absence of a divorce action. Strasner v. Strasner, 232 Ark. 478, 338 S.W.2d 679 (1960).

The immediacy and finality of the agreement are apparent, from the following:

Subject to the provisions of this agreement, each of the parties may hereafter dispose of his or her property of whatsoever nature, real or personal, and each party hereby waives any and all right or interest which he or she might otherwise have in and to the estate of the other. The Wife specifically renounces and releases all interest, right or claim of right of dower, or homestead, that she now has, or might otherwise have, against the property and estate of the Husband.

The parties intended to dispose of all property rights between them upon execution of the agreement. The provision for equal division of the proceeds of a sale of the tract should be given effect and appellant cannot be considered a tenant by the entirety with the right of survivorship.

While the language is clear that the tenancy by the entirety was to cease, we express concern, as we did in Killgo, supra, for the certainty and reliability of the title to real property. Drafters of separation agreements who wish to convert a tenancy by the entirety into a tenancy in common should take great care in unequivocally stating the intentions of the parties and should be mindful of the fact that the subject of dower is not raised on this appeal.

Affirmed.


author:
Steele Hays, Justice.
      Steele Hays, Justice.

text:
    Estate of Robert D. INGRAM, Deceased and FIRST NATIONAL BANK IN STUTTGART v. Oscar KOCHTITZKY,
    83-288
    668 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984
    [Supplemental Opinion on Denial of Rehearing June 18, 1984.]

      Randall L. Gammill, for appellant, Estate of Ingram.

      Carl J. Madsen, P.A., for appellant, First National Bank of Stuttgart.

      Catlett ér Stubblefield, by: H. B. Stubblefield, for appellee.
   Steele Hays, Justice.

This case involves the assignment rights of a purchaser of stock in a private corporation under an escrow agreement. Appellant, Oscar F. Kochtitzky, seller, and W. B. Guthrie, Jr., buyer, executed a buy/sell agreement on October 13, 1977, for the sale and purchase of eight and eight elevenths shares of stock in LaGrue Land and Irrigation Company, a farming and hunting corporation. At the same time, seller and buyer executed an escrow agreement naming Commercial National Bank of Little Rock as escrow agent. The escrow agreement provided that the agent was to hold the stock, receive the payments from the buyer and, upon full payment, deliver the stock to the buyer. Payments were due annually on January 15th of each year, with a sixty day grace period, and there was provision for a forfeiture of the buyer’s interest if any payment was not timely made. The agreement prohibited prepayment, but had no restriction on assignment. The buyer made the payments in a timely manner for the years 1978, 1979, 1980, 1981 and 1982. Buyer assigned his interest under the escrow agreement to appellant, Robert Ingram, on February' 28, 1983. Appellant tendered the 1983 annual payment to the escrow agent on March 8, 1983, which was within the grace period. Pursuant to instructions from appellee, the escrow agent did not deposit the payment in appellee’s account, nor did the agent return the payment to appellant. Appellee filed suit on March 18, 1983, against the original buyer, his assignee (appellant), and the escrow agent, seeking forfeiture of the buyer’s interests in the stock and an order that the stock be reissued to the seller. Appellant counterclaimed, asserting his interest in the stock and the escrow agent interplead the payment and stock certificate in question. Both parties filed motions for summary judgment and the appellant brings this appeal from summary judgment granted to the appellee.

The appellant argues that the trial court erred in finding that Arkansas law pertaining to escrow agreements prohibits an assignment of rights by the obligor, and we agree. Our case law does not support a ruling that a party to an escrow agreement such as this who is not in default cannot assign his interest. Corbin takes note of this particular situation and readily concedes the propriety of assignment:

. . . [I]t has been and should be held, in cases where a deed of conveyance is delivered as an escrow, or to the grantee on condition, that the grantee has a property interest before [the condition is met and the deed delivered to the grantee], . . . and one that includes a power of making conveyances to others. Doubtless these in some measure depend upon the character of the conditions upon which the escrow was delivered ... If the subject matter is land, the grantee has an interest that will descend to his heir. Corbin on Contracts, IA § 249.

Additionally, there is statutory authority that provides for assignments. Ark. Stat. Ann. § 68-801 states:

All bonds, bills, notes, agreements and contracts, in writing, for the payment of money or property, or for both money and property, shall be assignable.

The appellee and the trial court rely on escrow cases which are not applicable to this situation. See, Ark. Supply Inc. v. Young, 265 Ark. 281, 580 S.W.2d 174 (1979); Mansfield Lumber Co. v. Gravette, 177 Ark. 31, 5 S.W.2d 726 (1928). In these cases we found no identifiable interests of a defaulting purchaser to support a lien by the purchaser’s creditors. The circumstances and considerations of a defaulting purchaser are not present here and those cases do not support a conclusion that an interest under an escrow agreement is not assignable. The defaulting purchaser triggers considerations that do not occur in a case of a simple assignment. The purchaser by defaulting, loses certain rights because he has breached the contract. No analogous situation arises in assignment. Nor have we ever held, as appellee suggests, that a purchaser under an escrow agreement is totally lacking of any interest or right until the condition of the agreement is fulfilled. That reading of our cases is incorrect and would be contrary to basic equitable principles, as would be the result in this case, were we not to recognize some interest of the purchaser. In Young and Mansfield, supra, we even suggested the recognition of an equitable interest of a defaulting purchaser, but neither case was appropriate for such a finding. And in Ober, Attwater and Co. v. Pendleton, 30 Ark. 61 (1875), we sanctioned the trial court’s remedy which recognized such an equitable interest.

True, we have held an assignment under an escrow agreement void, but for reasons that are readily distinguishable from the case at hand. In Bonderant v. Enis, 152 Ark. 372, 238 S.W.2d 48 (1922), Enis had executed a lease to Phillips, but through oversight, the lease did not appear in the abstract of title to the land. Enis was aware of this, but nevertheless, entered into a second lease on the same land with Bonderant. An escrow agreement was entered into, whereby the lease and the purchase money were deposited in a bank, to allow the purchaser forty-eight hours to examine title. The title appeared to be good upon examination and the parties were about to close the transaction when Bonderant discovered that the title was defective. Bonderant, in expectation of receiving a valid lease, had previously entered into a contract for the assignment of the lease for a profit of $3,000. Upon discovery of the defective title, Bonderant brought an action against Enis for breach of contract. We found Bonderant had no cause of action because he had “no right in the lease which justified him in contracting to assign it.” In other words, Bonderant assigned more than he was entitled to under the escrow agreement — a valid, unencumbered lease, as opposed to a lease subject to title examination. Had Bonderant assigned his rights as they were stated in the escrow agreement, the asssignment would have been proper. In this case, Guthrie, the original buyer, did not assign to Ingram any more than he was entitled to under the escrow agreement, i.e., the right to pay off the price of the stock in annual installments. Upon fulfillment of that condition the assignee would then be entitled to whatever rights the assignor would have had upon the fulfillments of the condition. To hold otherwise would be to sanction a forfeiture in the purest form, which equity will avoid whenever possible. See Triplett v. Davis, 238 Ark. 870, 385 S.W.2d 23 (1964); Higgenbotham v. Harper, 206 Ark. 210, 174 S.W.2d 668 (1943).

delivered Tune 18, 1984

671 S.W.2d 162

Appellee contends that the by-laws of the corporation restrict the right to transfer the stock to an individual who has not been approved by the other stockholders, hence the attempted assignment is invalid. But the Chancellor noted that appellee was no longer a member of the hunting club or a stockholder in the corporation and correctly found the appellee was without standing to raise the issue. Since we agree with the Chancellor on this point, appellant’s status with respect to stockholder approval under the restrictive clause is not before us and is not resolved by this litigation. Our decision affects only the fundamental question of whether rights under an escrow agreement are assignable.

The decree is reversed and the case is remanded for the entry of a decree consistent with this opinion.

Supplemental opinion on Denial of Petition for Rehearing

Steele Hays, Justice.

Appellee’s petition for rehearing warrants response. The assertion that by our decision we have changed the law of this State cannot be sustained, as we have never held that where assets are subject to escrow simply for the payment of a purchase price the purchaser may not lawfully assign his rights under such an agreement. The cases petitioner cites as reaching that result are distinguishable and none of them involves the factual situation here presented. Moreover, our legislature long ago announced the express policy of this State with respect to the assignment of rights under contracts for the payment of money and neither it, nor this court, has made exception simply because the parties used an escrow as the device by which to accomplish the exchange. Ark. Stat. Ann. § 68-801 (Repl. 1979). Here, the parties themselves omitted to restrict the right of assignment from their agreement, so why should the law impose a condition which they did not?

As the trial court correctly found, the appellee has no interest in the property held in escrow, except the right to receive the annual installment payments in accordance with the terms of the escrow, which in fact he has received, and to permit him to cancel the agreement, retain virtually the entire purchase price, and the property as well, only because the balance of the purchase price is tendered to him by an assignee of the purchaser, rather than by the purchaser himself, would operate as a forfeiture in the truest sense, which the law has traditionally abhorred.

Petition denied.

       Robert Ingram is now deceased and this appeal is brought on behalf of his estate.