author: J. Fred Jones, Justice. John A. Fogleman, Justice.

text:
    William R. Hass, Administrator of the Estate of Willard Hodges, Deceased v. Louis Kessell, by Leroy Kessell His Father and Next Friend, and Leroy Kessell, Individually
    4683
    432 S.W. 2d 842
    Opinion Delivered October 14, 1968
    [Rehearing denied November 18, 1968.]

      Putman, Davis & Bassett for appellant.

      Crouch, Blair & Cypert for appellees.
   J. Fred Jones, Justice.

This case arises out of a collision between two automobiles in Springdale, Arkansas. One of the vehicles was owned and operated by-Willard Hodges. The other vehicle was owned by Springdale Motor Company and was operated by Randy Morris, a minor, fifteen years of age. Louis Kessell, then fourteen years of age, and Jimmy Ray Combs, then sixteen years of age, were passengers in the vehicle driven by Morris. The Collision accurred when Hodges drove his automobile into the path of the automobile driven by Morris. Willard Hodges sustained fatal injuries in the accident and Randy Morris and Louis Kessell were severely injured.

Separate suits were filed against the estate of Hodges on behalf of the minors, Kessell and Morris, for their personal injuries and on behalf of Springdale Motor Company to recover for its property damage. The administrator of Hodges’ estate answered by general denial and pleaded contributory negligence on the part of Kessell. The administrator also alleged that Kessell’s injuries were caused by the negligence of Morris; that Kessell assumed the risk of Morris’ negligence ; that they were on a joint venture and that Morris’ negligence was imputed to Kessell. The administrator also cross-complained for contribution from Morris in the event of an adverse judgment. The cases were consolidated for trial and the issues were submitted to the jury on eight interrogatories to be answered in the form of verdict. Interrogatories 1', 2, 3, 4, 5, 6 and 8 being pertinent to the problem here, they were propounded to the jury and answered as follows:

“No. 1. Do you find from a preponderance of the evidence that the deceased, Willard Hodges, was guilty of negligence which was a proximate cause of the accident in question?
Answer: Yes.
No. 2. Do you find from a preponderance of the evidence that Randy Morris was guilty of negligence which was a proximate cause of the accident in question?
Answer: Yes.
No. 3. Using 100% to represent the total fault or negligence, what percentage of fault or negligence do you find to be attributable to eách of the following?
Willard Hodges, 44%
Randy Morris, 56 %
No. 4. Do you find from a preponderance of the evidence that Louis Kessell was guilty of negligence which was a proximate cause of any damages which he may have sustained?
Answer: Yes.
No. 5. Using 100% to represent the total fault or negligence, what percentage of fault or negligence do you find to be attributable to each of the following,
Willard Hodges, 75%
Louis Kessell, 25%
No. 6. Do you find a preponderance of the evidence that Louis Kessell assumed the risk of riding in the automobile driven by Randy Morris?
Answer: Yes.
No. 8. What do you find each of the following are entitled to recover for the following elements:
Answer: Leroy Kessell
Medical expenses for minor, $990.00
Louis Kessell
Conscious Pain and
Suffering, $1,250.00
Disability and Loss of
Earning Capacity, $5,000.00”

The trial court reduced the amount of Kessell’s damages by 25% and entered judgment for Kessell against Hodges’ estate in the amount of $5,430.00. On direct appeal, Hodges’ estate designated the following points for reversal:

“The Trial Judge erred in refusing to apply the jury’s finding that appellee Louis Kessell assumed the risk of riding with his host whose negligence exceeded fifty per cent and further erred in refusing to dismiss appellee Kessell’s complaint.
“If the negligence of the host driver was not imputed to appellee Louis Kessell, thereby barring appellees’ recovery, then, in any event, the trial court erred in refusing to reduce appellees’ recovery by 81 per cent, the total of the negligence assumed, and Louis Kessell’s own contributory negligence.”

On cross-appeal, Kessell designated the following point:

“The trial court erred in submitting the question to the jury of whether Louis Kessell assumed the risk of his own injuries for the reason that there was no evidence from which the jury could determine that he had assumed the risk.”

We are unable to see where assumption of risk as an element separate and apart from contributory negligence enters into the picture in this case at all. The collision was caused by the combined negligence of appellant’s intestate Hodges and appellee Kessell’s host driver Morris, and the separate negligence of each constituted a proximate cause of the collision. Hodges contributed 44% and Morris contributed the remaining 56% of this negligence. As between the two drivers, Morris is barred from recovery by his own negligence and this is not questioned. Although Kessell assumed the risk of riding with Morris, and although he may have been negligent in doing so, he was not driving the Morris automobile, nor was he directing Morris in its operation at the time of the collision. Kessell did not sue Morris, but he did sue Hodges’ estate for damages he sustained because of Hodges’ negligence. The jury found that the combined negligence of Hodges and Kessell caused the damages sustained by Kessell and that Hodges contributed 75% and Kessell contributed 25% of this total negligence causing Kessell’s injuries, and the court correctly found that as between Kessell and Hodges, Hodges was only liable for 75% of Kessell’s damages.

Appellant argues, in effect, that by assuming the rick of riding in the automobile with Morris while on a joint venture, the negligence of Morris in the operation of his automobile was imputed to Kessell to the exclusion of his cause of action against Hodges for damages as a proximate result of the negligence of Hodges. Appellant cites J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W. 2d 176, and Canady v. Allen, 239 Ark. 742, 393 S.W. 2d 865, as authority for the proposition that Kessell’s right to recovery was barred completely under our comparative negligence act. (Ark. Stat. Ann. § 27-1730.1, et seq.) We do not so construe the Tipton and Allen cases, and we do not so construe the act.

A careful reading of the decision in the Tipton case clearly distinguishes it from the case at bar and actually sustains the judgment of the trial court in the case at bar. In the Tipton case, young Tipton was a passenger in an automobile driven by Woolsey. Woolsey drove his automobile into the rear of a truck which negligently drove onto the highway. Tipton was killed in the collision and the Tiptons sued the truck company and driver and also sued Woolsey. The jury found that Woolsey contributed 20% of the negligence and that the truck driver contributed 80% of the negligence which caused the death of young Tipton, and that the negligence of Woolsey, as well as the negligence of the truck driver, was a proximate cause of the injuries and death. Contributory negligence did not go to the jury. The verdict for Tipton fixed the amount of damages and the trial court reduced the amount by 20% in the judgment against the truck company. It seems that the Tiptons waived their right to any judgment against Woolsey.

Appellants in the Tipton case argued that Tipton assumed the risk of the harm that might come to him through the negligent acts of Woolsey in the operation of the vehicle in which Tipton was riding. In affirming the judgment of the trial court, this court said:

“To adopt the rule which appellants appear to espouse would lead to an illogical and unjust result. It would allow Woolsey (the negligent driver) to recover, but it would deny recovery to the boys who bad no control over the car.
“We are unable to understand how our comparative negligence statute in any way operates to modify or repeal the doctrine of assumption of the risk as it applies to the case under consideration and as it has been uniformly construed by the courts in this and other jurisdictions — that is, a person does not assume the risk of the negligence of a third party and does not assume a risk of which he is not aware. The rule, as applied to cases of this nature is very well stated in 61 C.J.S. Motor Vehicles §486, where appears this statement:
“ ‘A guest’s assumption of risk, in case of a motor vehicle collision, applies only as between the guest and his host, and does not bar recovery from a third person for injuries to which the third person’s negligence proximately contributed, unless the acts of the host, in which the guest acquiesces, operate as the the cause of the collision.’
“There are many authorities and decisions in substantial agreement with the above statement. See: 4 Blashfield, Cyclopedia of Automobile Law and Practice, §2511; Keowen v. Amite Sand & Gravel Co., (La. 1941) 4 So. 2d 79; and Guile v. Greenberg, 192 Minn. 548, 257 N.W. 649.” (Emphasis supplied.)

In the Allen case, the motor had gone dead at night on Canady’s car and he was working on it beside the highway. He directed Mitchum to park his car headed in the opposite direction on Mitchum’s wrong side of the highway and in front of the Canady car so that the lights would shine on the front of the Canady automobile. Mrs. Allen drove into the rear of the Canady automobile. The jury divided the fault in the ratio of 90% to Mrs. Allen and 10% to Mitchum. Canady was the one who had directed and caused the Mitchum automobile to be placed on the -wrong side of the highway with the lights burning, and, of course, the negligence on the part of Mitchum was imputed to Canady on the facts of that case, which clearly distinguishes it from the case at bar.

Had Kessell directed Morris in the commission of acts constituting Morris’ 56% of the negligence causing the collision, then that negligence may have been imputed to Kessell even though he did not actually execute the negligent acts himself. But, there is no evidence in the record that Kessell did direct or assist Morris in the commission of Morris’ negligent acts or conduct.

The record does not reveal the disposition made of ajjpellant’s alternative prayer for contribution and appellee has abandoned his cross-appeal in the light of the decision we reach. We conclude that the rule stated, supra, from our decision in Smith Co. v. Tipton should not be abandoned in this case and that the judgment of the trial court should be affirmed.

Affirmed.

George Rose Smith, Brown and Fogleman, JJ., concur.

John A. Fogleman, Justice.

I concur in the affirmance of this case but for a reason entirely different from that stated in the majority opinion.

I do perceive that assumption of the risk in this case could constitute a defense entirely separate and apart from contributory negligence. I do not think that it is necessary to determine whether or not the parties were on a joint venture, and I seriously doubt that the evidence is sufficient to make an issue of this relationship between Morris and Kessell. A reading of J. Paul Smith Co. v. Tipton, 237 Ark. 486, 374 S.W. 2d 176, leads me to an entirely contrary construction than that given in the majority opinion. I construe that case to make the negligence of the driver imputable to his passenger if the passenger assumes that risk. In that case we approved the reduction of the recovery of a passenger from a third-party driver by the percentage of his host driver’s negligence. In other words, the passenger was held responsible for the hazard he assumed, i.e., that portion of total fault constituting the proximate cause of his own damages attributable to his host. The real effect of the majority opinion would be to overrule the cited case without saying so. It seems to me that the rule is a sound and just one. We necessarily construed the comparative negligence statute in adopting the rule in the cited case and I would not overrule it. Certainly it could not be said that there was assumption of the risk of negligence of Hodges, an unknown third party, the hazards of which could not have been known or anticipated by Kessell.

This appeal is actually taken from a judgment in two cases. Louis Kessell, the passenger, through his father and next friend, sought recovery against the estate of Willard Hodges who was the driver of the vehicle which collided with that in which Kessell was a passenger. An answer and cross complaint were filed by the estate of Hodges. Separate suits were brought by Springdale Motor Company, Inc. and Randy Morris against the Willard Hodges estate. On motion of the administrator of the Hodges estate, three separate causes of action arising out of this collision were consolidated for trial. The jury made the following answers to interrogatories submitted by the court.

‘ ‘ INTERROGATORY NO. 1: Do you find from a preponderance of the evidence that the deceased, Willard Hodges, was guilty of negligence which was a proximate cause of the accident in question?
ANSWER: Yes.
INTERROGATORY NO. 2: Do you find from a preponderance of the evidence that Randy Morris was guilty of negligence which was a proximate cause of the accident in question?
ANSWER: Yes.
INTERROGATORY NO. 3: Using 100% to
represent the total fault or negligence, what percentage of fault or negligence do you find to he attributable to each of the following?
ANSWER: Willard Hodges 44%
Randy Morris 56%
INTERROGATORY NO. 4: Do you find from a preponderance of the evidence that Louis Kessell was guilty of negligence which was a proximate cause of any damages which he may have sustained?
ANSWER: Yes.
INTERROGATORY NO. 5: Using 100% to represent the total fault or negligence, what percentage of fault or negligence do you find to be attributable to each of the following?
ANSWER: Willard Hodges 75%
Louis Kessell 25%
INTERROGATORY NO. 6: Do you find from a preponderance of the evidence that Louis Kessell assumed the risk of riding in the automobile driven by Randy Morris?”

The jury affirmatively answered that Kessell was guilty of negligence and also assumed the risk of Morris’ negligence, but they found that the total fault or negligence attributable to Mm amounted to 25% and that attributable to Hodges amounted to 75%.

It seems clear to me that the jury found that Kessell’s total contribution to bis damages by assumption of the risk and negligence amounted to only 25 % and, thus, justified the court’s action. This is a finding in the case between Hodges and Kessell that is inconsistent with the finding on the cross complaint of the administrator of the Hodges estate against Bandy Morris, if Morris’ negligence is, in effect, to be imputed to Kessell. Inconsistency of verdicts is not a ground for reversal. Rudolph v. Mundy, 226 Ark. 95, 288 S.W. 2d 602; Milum v. Clark, 225 Ark. 1040, 287 S.W. 2d 460; Brown v. Parker, 217 Ark. 700, 233 S.W. 2d 64; Leech v. Missouri Pacific R. Co., 189 Ark. 161, 71 S.W. 2d 467.

I would affirm tbe judgments of tbe trial court on tbe inconsistent verdicts.

I am authorized to state that George Bose Smith and Brown, JJ., join in this concurrence.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    The Kroger Co. v. Mrs. W. R. Burleson
    4677
    432 S.W. 2d 847
    Opinion Delivered October 14, 1968
    [Rehearing denied November 18, 1968.]

      Keith, Clegg & Eckert for appellant.

      McKay, Anderson & Crumpler for appellee.
   Conley Byrd, Justice.

Appellant, Tbe Kroger Company, conducted a promotional game called “Double Sweepstakes Bingo”, whereby customers could win prizes ranging from trading stamps to $1,000 cash. The game was played with a card and discs distributed by the Kroger stores to their customers. Kroger’s Exhibit #3 is reproduced below to show the card and the discs placed thereon. Concealed discs, such as Burleson’s Exhibit #1-A, below, were given to customers each time they visited the store.

Exhibit #3

Exhibit #1-A

The game rules are on the hack of the cards. Rules 4 and 10 provide:

“4. When you have a row of five squares covered vertically, horizontally or diagonally on any one of the four games on each card, you have won the cash prize indicated at the top of that game. Free squares are the same as covered numbers. Take winning card to our store and have manager verify it. He will then award you the CASH PRIZE. Only one cash prize per game.”
“10. CAUTION: Cards and disc tickets VOID if altered or defaced. Game is VOID where prohibited or restricted by law.”

Appellee, Mrs. W. R. Burleson filled the $1,000 game card allegedly by acquiring the disc “G--80” in the Magnolia Kroger Store. Mrs. Burleson claims that when she presented the card and discs to the store manager, he told her “he would send it in and then they’d send me my money”. At that time she signed a form entitled “Double Sweepstakes Bingo $1,000, $100, $25 .....Submission Agreement and Publicity Release Form.”

Mrs. Burleson maintains that she did not leave the store after getting the “G--80”. Kroger subsequently notified Mrs. Burleson that she was not a winner because the “G--80” disc had been altered. When Mrs. Burleson’s counsel wrote for the return of her bingo card and discs, Kroger responded:

“Dear Mr. Crumpler:
An examination of the key bingo disc submitted by your client makes it obvious that the disc has been tampered with. Aside from any possible fraud implications, our rules state quite clearly that discs which have been altered or defaced are void. Your client clearly does not have a winning disc or card.
For your own information, I might add that your client initialed the disc in question before submitting it to us. The tampering took place before this time. You might also be interested to know that the invisible ink coding which is placed on all winning discs was not on your client’s disc.
This is not a case of simple error. It involves a deliberate effort on the part of someone to obtain a prize to which they are not entitled. I understand, of course, that this may have occurred before the disc reached your client for we know these discs are widely traded or sold.
In view of the facts, we do not intend to consider the material submitted by your client as valid.”

At trial the store manager positively identified Kroger’s Exhibit #3 as the card and discs given to him by Mrs. Burleson because of his initials on the back of the card and the alteration of the “G-80”. In a previous deposition he had stated only that it would be his opinion that this was the card submitted by Mrs. Burleson, but that as far as the marks on the card, he was not sure, but they looked like his initials; he would not say they were and he did not remember initialing the discs. He admits he had been instructed by the company to mark the cards and discs for identification so that the person sending them in could be sure it was their card and discs that were sent in, but he failed to have Mrs. Burleson initial her card and disc. The “G-83” disc on Exhibit #3 was there when submitted, but there was no explanation for its absence. He was not sure why he did not staple the “G-83” disc as he had done the other two. The “G-80” was only clipped to prevent mutilation. ■

The store manager says that it would be a matter of opinion whether Mrs. Burleson thought that he in-cheated she was a winner. It was his duty to take the card without causing any problems from her and send it to Little Rock.

Byron Crain, Kroger’s Advertising Manager for the 36 stores in Arkansas and two in Texarkana, Texas, testified that Kroger used the games so that people would respond to the opportunity to win by shopping at Kroger stores. The cards and discs were designed for 139,000 winners, but only five $1,000 winners. The $1,000 winners were handled individually by him through the use of “control” numbers or discs —■ one of which was a “Gr-80” disc. The stores receiving the control discs were in Pine Bluff, Little Rock, North Little Rock and Texarkana. A disc numbered “G--80” was not sent to Magnolia.

Mr. Crain then demonstrated with ultra violet light that the “Gr-80” disc on Kroger’s Exhibit No. 3 was not one distributed by Kroger, Le., it was not coded properly. He speculated that two discs may have been put together by using the eight in 86 and the zero in 40. However the actual decision to deny the verity of the disc was made on the basis of an alteration under rule #10 of the contest.

On cross examination Crain admitted that Kroger did not mention in its advertising that there could only be five $1,000 winners in Arkansas, and that it continued to advertise $1,000 winners in Magnolia even though no $1,000 control numbers had been sent to that store.

Another Kroger employee testified that Mrs. Burleson handed him a bingo card with “Gr-80” on the manager’s day off, Thursday, December 15, before she talked with the store manager on December 19th. He says that he told her to present the card to the manager when he got back. He testified that Mrs. Burleson explained that the “G-80” disc had been in her wrecked truck.

Mrs. Burleson’s complaint alleged fraud and sought damages not only for the $1,000 cash prize, but also for the expense of the trips made to shop with Kroger. From a jury verdict of $1,000, Kroger appeals urging the following points:

I. There was no substantial evidence to support a verdict of fraud.
II. There was no substantial evidence that appellee presented a valid “G-80”.
III. The court erred in refusing to declare a mistrial when the plaintiff suffered two seizures in the presence of the jury.
IV. The court erred in refusing to declare a mistrial based upon the misconduct of a juror during the trial.
V. The court erred in giving instruction No. 10, because there was no evidence of a misrepresentation by Kroger or damages sustained by Mrs. Burleson.

Points I and II, Whether any fraud was shown here depends upon whether Mrs. Burleson presented a valid disc “G-80”. Of course, if we could be sure that the “G-80” on Kroger’s Exhibit #3 was the disc with which Mrs. Burleson claims to have bingoed, we could easily find no fraud on Kroger’s part.

The record when viewed in the light most favorable to the jury’s verdict shows that Mrs. Burleson obtained a “G-80” disc from the Kroger Store in Magnolia; that she presented her bingo card to the manager as required by rule #4 above; and that the manager stated that he would send the card in and she would then get her money. After the card was turned over to the Manager, Mrs. Burleson was notified that she was not a winner because the disc “G-80” had been altered. When her counsel requested return of the card, Kroger advised him that the disc had been altered and that Mrs. Burleson’s initials were on the disc to verify that it was the disc presented by her to the manager, i.e., showing that it was altered at the time of receipt by the manager. When Exhibit #3 was presented to the manager during a pretrial deposition, he was unable to definitely identify either the card or the disc as those given him by Mrs. Burleson, but by the time of trial he was positive of the identification. Admittedly, neither the card nor the disc had been initialed by Mrs. Burleson.

The jury also had before it evidence showing that Kroger did not comply with the Bingo Game Buie #4 when the amount exceeded $5.00, but actually instructed store managers that when a $25, $100 or $1,000 cash winner was claimed, they were to get possession of the cards and discs and send them to the advertising manager for verification and payment.

Added to the above testimony is the undenied fact that Kroger continued to advertise $1,000 cash prizes throughout the thirty-eight store area in which the game was being promoted even though it claimed there were only five possible $1,000 winners and that it knew the store in Magnolia had no $1,000 winner.

Under the circumstances, we are unwilling to say that there was no evidence from which the jury could find fraud on the part of Kroger or that there was no evidence to show that Mrs. Burleson did not receive a valid disc “G-80”.

Point III. We can find no abuse of the trial court’s discretion in refusing to grant a mistrial when Mrs. Burleson suffered two seizures during the trial. Ordinarily a cautionary instruction is sufficient to remove any prejudice arising from sympathy.

Point IV. Kroger’s complaint about the comment of the juror arose during the cross-examination of Mr. Byron Crain. The record with respect thereto shows the following:

Q. Mr. Crain, you have testified that the only reason that Mrs. Burleson was not awarded a $1,000 prize was because the disc was not altered.
Mr. Eckert
That it was altered.
Mr. Crumpler
That it was altered. Now with that in mind then, the questions that Mr. Eckert asked Mrs. Burleson about her relationship to one of your employees, that hasn’t got anything to do with this?
A. No, sir.
Q. The only grounds that you all are kicking about is this ticket? This one Gr-80?
Juror
It’s the amount, too, the way I get it.

No objection was made at the time to the juror’s remark and no request was made for cautionary instructions. This is certainly not the conduct condemned in St. Louis-San Francisco Ry. Co. v. Oxford, 174 Ark. 966, 298 S.W. 207 (1967). We feel that the record here shows the juror’s remark was prompted by evidence heard in open court and we cannot see that the trial court erred in refusing to grant a mistrial.

Point Y. We find no merit in appellant’s contention that there was no evidence of a misrepresentation by Kroger or of damages sustained by Mrs. Burleson. The record shows that Mrs. Burleson did respond to the advertised opportunity to play the game by driving some 20 miles to shop with Kroger and that in accordance with Rule #4 of the game she submitted her winning bingo card to the store manager at which time she understood that she would be paid. We hold that the evidence was sufficient to sustain the $1,000 award of the jury.

Affirmed.

Brown, J., dissents.


author: Carlton Harris, Chief Justice.

text:
    Kenneth Beam d/b/a Beam Asphalt Company v. Jack Parsons d/b/a Mena Red-E-Mix
    4604
    432 S.W. 2d 768
    Opinion Delivered October 21, 1968

      Batchelor & Batchelor, for appellant.

      Shaw & Shaw, for appellee.
   Carlton Harris, Chief Justice.

Appellant, Kenneth Beam d/b/a Beam Asphalt Company, instituted action against appellee, Jack Parson d/b/a Mena Red-E-Mix, seeking judgment in the amount of $5,414.77, the allegations being that appellant had suffered that amount of damages by reason of appellee’s furnishing defective and non-conforming base material, supposedly GB-3, this act necessitating the replacement of 2% to 3 acres of parking lot. Parsons filed a counterclaim for $3,759.41 representing materials furnished and equipment rendered and sold. The case was tried before the court, sitting as a jury, and at the conclusion of the evidence, Beam’s complaint was dismissed, and Parsons was granted judgment for the amount sought, plus interest from the date of judgment. Appellant brings this appeal, asserting several points for reversal.

Of course, this being a case from the Circuit Court, we are only concerned with whether there was substantial evidence to support the trial court’s decision, and it is accordingly unnecessary that we detail all of the evidence offered by appellant.

The facts, in brief, are that Beam took a sub-contract to build two parking lots, and a clay gravel sub-base was put in in approximately January, 1966. In April of the same year Parsons agreed to furnish GB-3. base material and No. 8 mineral aggregate for the job. In May, appellee delivered a sample of material, which was testéd by Gene Daniel, a registered professional engineer of Port Smith, and operator of a soil and concrete testing firm. Mr. Daniel’s report stated:

“This material conforms to Arkansas Highway Department specifications for gravel base course GB-3.”

Daniel testified that the sample was acceptable, and the report reflects that the sample came from the source of Parson’s crushed gravel site. Beam’s testimony reflects procedure after receiving the material:

“Well, after it’s dumped on the job, the first thing after it’s dumped on the job, you have got to do is take either a dozer or motor grader and spread the material, and as soon as it’s roughly graded in, then you take your water and your rollers and grader, and usually those three pieces of machinery, well, you can prepare it, get your compaction and all with it.”

He used 35,000 gallons of water on this job. After spreading the material, and wetting it, it was “prime-coated,” and the seal coat was applied in early June. As the seal coat was rolled, it began to buckle under the weight of the roller, and the end result was that the GB-3 was taken off. A sample of the material used was given to Daniel who, after an examination, reported that it was not GB-3 material.

The evidence offered by various witnesses indicated that there could be six possible reasons for a parking lot to break apart, one being freezing, which cannot be considered here because there was no freezing weather during the period of construction. The other reasons given were improper rolling, excessive watering, improper compaction, base course too thin, and finally, defective materials, this latter cause being the contention of appellant.

Eli Depuis, employed by U. S. Motors as a manufacturing engineer, testified that he was already familiar v/ith the lot which was paved before the GB-3 was placed on it; that part of the ground was hard, but the side nearer the highway was softened to the extent that he conld not drive his Volkswagen on it. Although he went by the job each day, he said that he never saw the employees of appellant rolling and compacting this soft area, recognizing however, that it could have been done when he was not present. Parsons likewise testified that he never did see any rolling done. This testimony was disputed by Roy Paleide, job superintendent for the prime contractor, and Donald Bolton, who was working for Beam on this particular job, i-e., both testified that the lot was properly rolled. As to excessive watering, Daniel testified that ordinarily, to water down 12,711 square yards of material, 2 inches thick, for a single seal job, 20 to 25 thousand gallons of water would be used, and 35,000 gallons would be more than enough. The witness stated that whether this last amount would have a detrimental effect would depend upon the sub-base and sub-grade, i.e., whether there had been saturation. He said that 35,000 gallons on this project could be excessive, but there were too many intangibles to definitely reach such a conclusion.

An interesting observation was made by Dale Spencer, a resident engineer with the Arkansas State Highway Department, and James Looney, street commissioner of Mena, both stating that, in their opinion, 2 inches of GB-3 on top of the clay base would not be sufficient to carry traffic that would ordinarily be on a street or parking lot. When asked what his opinion would be if the evidence reflected that a lot with 4 inches of GB-3 material buckled the same way, Mr. Spencer stated that he would not express an opinion, since there are many things that can go wrong with a seal coat job. Spencer also testified that it was possible that materials could meet specifications when delivered, but not meet same when laid, and this could be either because the material was defective or because it was laid in an inefficient manner. Spencer mentioned that Daniel’s manner of sampling was not in conformity with the Highway Department’s general method, but that the first Daniel report showed that the material was well within specifications.

Appellant objected to the testimony of Looney on the basis that this witness had not had sufficient experience to qualify as an expert. The proof reflected that Looney had been employed by the City of Mena for six years as street commissioner, and had been in charge of construction, repair, and maintenance of all city streets. He had not had experience with G-B-3 materials. The witness had had experience in sealing since 1948 when working for the state, and we cannot say that it was an abuse of discretion for the trial court to admit this testimony. As stated in Ray v. Fletcher, 244 Ark. 74, 423 S.W. 2d 865:

“The determination of the qualifications of an expert witness to express an opinion is within the discretion of the trial judge, and we will not reverse his decision unless it appears that he abused that discretion. ’ ’

For that matter, this case was not tried before a jury, and there is no indication that the testimony of this witness had any particular influence on the court’s decision, it being remembered that Spencer, whose qualifications were not questioned, testified to the same thing.

Jim Beam, brother of appellant, and also a general contractor, admitted that he had never seen G-B-3 material laid thinner than 3 inches, and Mr. Faleide also testified that this was the first instance in which he had known of GB-3 materials being laid only 2 inches thick, although he stated that if the subbase, and other requirements of the job were complied with, the 2-inch thickness should not have too much effect.

As previously stated, there was evidence offered by appellant that the lot was properly rolled; that there was no excessive watering; that the sub-base had been properly compacted and had been permitted to settle for 4 to 5 months before base material was put on it. The Beams and Faleide testified that, in their opinion, the buckling of the parking lot was not caused by the fact that the GB-3 was only 2 inches thick. Still, these were all fact questions to be determined by the trial court. Certainly, there was evidence that the condition could have been caused by other than defective materials, and the trial court was not required to believe the statements of every witness who testified.

Parsons testified that the first knowledge he had of any complaint was when he sought his money and was advised by Beam that the materials had been unsatisfactory. From Beam’s testimony, it would appear that he had no suspicion of the cause of the trouble until the parking lot buckled, was ripped up-, and a sample further tested by Daniel. This seems unusual, since Beam was an experienced contractor, and, according to highway engineer Spencer, the Highway Department runs a complete test on GB-3 material for every 500 yards. Of course, Beam could have tested the GB-3 at intervals before using, and any deficiency would have been found.

Based on the testimony heretofore set out, we hold that there was substantial evidence to support the finding of the trial court.

Affirmed.

       B-S was defined by Daniel as a natural or artificial mixture of gravel and soil mortar uniformly well graded from coarse to fine, and free from objectionable materials, and that 100% of such material should pass through a IV2 inch screen.

       Actually, Mr. Faleide testified that he observed some of the material as it was brought in, and that it did not look the same as the material delivered at the beginning of the job. He called this to the attention of both Parsons and the contractor, but stated, “They told me that it was the same material and that it would meet the specifications. The same material as had been delivered to start with and that tests were made.” Accordingly, he had no further tests made. In referring to “they,” it is not clear whether Faleide was referring to Beam or to the prime contractor, although it was probably the latter. However, if the appearance was such as to be questionable to Faleide, one wonders why it was not also questionable to Beam.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice.

text:
    Jannie Cannor v. Adelia Cooper
    4687
    432 S.W. 2d 761
    Opinion Delivered October 21, 1968

      Cockrill, Laser, McGehee, Sharp & Boswell for appellants.

      Hall & Tucker for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to a collision involving five automobiles. All drivers, and two passengers in two of the vehicles are parties to this litigation. The proof reflects that this accident happened on January 18, 1966, early in the morning, before sun-up, on the Saline River Relief Bridge on Interstate Highway No. 30, just south of Benton. The collisions occurred as a reult of all drivers involved partly losing control of the cars they were respectively driving when ice was encountered on this bridge. The action was instituted by Geraldine Mills, driver of one of the automobiles, and Adelia Cooper, mother of Mrs. Mills, who was a passenger in the Mills vehicle. Four ladies, all drivers of other vehicles involved, were named as defendants. The complaint alleges:

‘ ‘ On January 18,1966, plaintiff, Adelia Cooper, was riding as a passenger in a vehicle driven by plaintiff, Geraldine Mills, traveling North on Interstate Highway No. 30. Each of the defendants were also traveling North on the same highway. Defendant, Jannie Cannor, lost control of her vehicle and skidded into a bridge rail then collided with the vehicle driven by defendant, Bernice Beck. The vehicle in which plaintiff, Adelia Cooper, was a passenger was struck from the rear by a vehicle driven by Alva Ann Hill and was also struck one or more times by the vehicles of the other defendants.”

It was asserted that all defendants were individually negligent, and the negligence of each contributed to cause the injuries and damages subsequently set out in the complaint. Thereafter, Mildred Pilcher and her husband, Murl Pilcher, counterclaimed against Mrs. Mills and her mother, and also sued Mrs. Cannor. Bernice Beck and Alva Ann Hill answered, asserting that, as to them, the accident was unavoidable. Jannie Cannor also pleaded unavoidable accident. On trial, the court gave AMI 604, which is an instruction on unavoidable accident, the giving of said instruction being objected to generally and specifically by counsel for appellees Mills and Cooper, and counsel for appellees Mildred and Murl Pilcher. The question of the negligence of each driver was submitted to the jury on interrogatories, and in answer to these interrogatories, the jury (varying from nine to eleven in the several answers) found none of the drivers guilty of negligence which was a proximate cause of the collisions. Mills and Cooper moved for a new trial, and the court granted this motion, holding that error had been committed in giving the defendants’ requested instruction, as follows:

“If you believe from the evidence that the occurrence was an unavoidable accident; that is, one which was not proximately caused by negligence of any party in this case, then you should answer interrogatories 1 through 5 ‘no’.”

Prom this order granting the new trial, appellants bring this appeal.

The proof indicates that Mrs. Cannor was the first driver to go on the bridge. The second was either appellant Beck or a vehicle driven by an individual not involved in the collision and not a party to this suit. The third vehicle was driven by Mildred Pilcher, the fourth by Geraldine Mills, and the fifth by Alva Ann Hill. Mrs. Cannor, skidded on the ice, struck the bridge and stopped on the right shoulder. She testified that she was traveling 40 to 45 miles a,n hour when she drove onto the bridge. The car driven by Alva Ann Hill struck the Mills car. Mildred Pilcher testified that she was driving 30 to 40 miles per hour upon entering the bridge. She said that she was struck by the Mills car, and Mrs. Mills testified that she was struck by the Pilcher car, the Hill car, and a brown car, the owner being imknown. Mrs. Mills testified that she was traveling about 40 miles per hour when she drove onto the bridge. Mrs. Beck thought she was hit by Mrs. Pilcher.

Appellants point out that all drivers testified that they had not previously observed any ice at any place before coming onto the bridge in question; that several of these drivers had already traveled over other bridges, and none had difficulties; that there was no evidence of excessive speed, nor evidence of a lack of proper control of the respective vehicles on the part of any driver until the ice was unexpectedly encountered on the Saline Biver Belief Bridge. It is forcefully argued that this case is a perfect example of an unavoidable accident, and appellants cite Industrial Farm Home Gas Company v. McDonald, 234 Ark. 744, 355 S.W. 2d 174. In the first place, the facts in McDonald are not in accord with the facts in the instant litigation. There, though the roadway was slick with snow and ice, both vehicle operators were admittedly driving slowly, were only about 25 feet apart when they observed each other, and neither could have seen the other earlier. Not only that, but both drivers testified that the accident was unavoidable.

Here, according to the testimony, involved drivers were traveling anywhere from 30 to 45 miles per hour. The bridge was 500 feet long, and the proof showed that there was no precipitation, no fog, nor anything to obscure the view, except that it was still dark enough to use headlights; however, there is no complaint that any car could not be seen, and apparently all had their headlights on, and taillights were burning. In fact, several of the drivers commented on seeing taillights up ahead flashing. The evidence reflected that there was snow in the fields and yards, and the weather, though clear, was very cold. There was further testimony as to signs warning drivers to watch for ice on the bridges.

Also, there is evidence in the record reflecting possible negligence on the part of some of the drivers. For instance, Mrs. Pilcher testified that Mrs. Cannor was crying, and stated that she (Cannor) “felt like she was the cause of all this.” Fay Jones, riding in the car with Mrs. Pilcher, testified that Mrs. Mills “come at quite a speed and hit us in the side.”

At any rate, we have, in our last several cases which involved this point, held that instruction to be improper, and we reversed four cases because of the giving of it, and in yet another, affirmed the trial court

in setting aside an earlier judgment wherein the instruction had been given. In Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872, the first of these cases, we discussed this instruction at length, pointing out that the defense of unavoidable accident is nothing more than a denial of negligence, or a contention that such negligence was not a proximate cause of the injury complained of; further, that to submit this issue is confusing, in that it suggests that unavoidability is a separate defense, requiring separate consideration by the jury. In Lewis v. Crockett, 243 Ark. 377, 420 S.W. 2d 89, we pointed out:

“ * * * After all, in holding that this instruction should not have been given, we are not taking away appellee’s defense, for it is his contention that he was not negligent, and before he can be determined to be liable, a jury must find that he was negligent, and that such negligence was a proximate cause of the alleged injuries complained of.”

By our decision in this case, we are again reiterating our disapproval of the giving of this instruction in damage suits arising out of automobile collisions, except in most unusual situations. What is an unusual situation? This too is commented upon in Crockett:

“Perhaps it should again be emphasized that, since Houston v. Adams, supra, we have held that an unavoidable accident instruction is only permissible in exceptional situations. In that case, we mentioned, as an example of an unavoidable accident, a collision occurring because of a driver, with no previous coronary disease, losing control of his car as a result of a sudden heart attack. Accidents caused by an ‘Act of God’ might well be included — but certainly, no such issue is presented here.”

We agree that the giving of the instruction in this case was error, and it may well be that the instruction was the basis for the findings of the jury.

Affirmed.

Brown and Fogleman, JJ., dissent.

John A. Fogleman, Justice.

I dissent because I deem that the instruction on unavoidable accident was properly given under the pleadings and evidence in this case and the granting of a new trial based solely on the giving of this instruction erroneous.

An unavoidable accident is one which is an unanticipated and unexpected occurrence which no reasonable person would likely have foreseen and for which no one is to blame. St Louis-San Francisco Ry. Co. v. Bryan, 195 Ark. 350, 112 S.W. 2d 641. This court has defined an unavoidable accident in automobile collision cases to be a collision occurring without negligence on the part of either driver. Caldwell v. McLeod, 235 Ark. 799, 362 S.W. 2d 436. It has been held that the instruction on unavoidable accident should be given when there is evidence tending to prove that the injury resulted from some cause other than the negligence of the parties. Elmore v. Dillard, 227 Ark. 260, 298 S.W. 2d 338; Rhoden v. Lovelady, 239 Ark. 1015, 395 S.W. 2d 756. The giving of the instruction is error only where the sole question is whether one or more of the parties is guilty of negligence. Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872; Burton v. Bingham, 239 Ark. 436, 389 S.W. 2d 876; Oklahoma Tire & Supply Co. v. Bass, 240 Ark. 496, 401 S.W. 2d 35.

The ease now before ns falls in the category of those where there is considerable evidence tending to prove that the series of collisions involved resulted from a cause other than the negligence of any of the parties involved. It does not involve the simple matter of determining which of the parties was negligent. As pointed out in the majority opinion, five automobiles were involved. There were the usual counterclaims and cross complaints. The defense of unavoidable accident was pleaded by several of the parties.

Geraldine Mills, the plaintiff, testified that there was no evidence of snow or ice either on her porch when she left home or on the highway leading up to where the collisions occurred. She first discovered the condition when she applied her brakes, after she saw cars colliding ahead when halfway across the bridge. One of the vehicles involved overtook her at the bridge.

Mrs. Beck, a defendant driver, was on the bridge and about to pull over into the left-hand lane because of seeing the taillights on Mrs. Cannor’s automobile flashing, before she noticed there was ice on the bridge. She also was unaware of this condition until she applied her brakes and started skidding. She had traveled for some distance on the highway and noticed nothing to indicate that there would be ice on the bridge.

Mrs. Cannor testified that she had crossed a number of bridges and had seen no signs of ice on the highway before she reached the bridge on which the collisions occurred. She drove onto this bridge and discovered the icy condition when her car started sliding toward her right. She said that as she approached the bridge, it looked like all of the bridges she had previously crossed on which there had been no ice. The same sign warning drivers to watch for ice on bridges had appeared on the approaches to all the bridges she had previously crossed and on which there was no ice.

Miss Hill did not encounter any icy conditions on the highway before she reached the bridge and did not see any indication of icing on the bridge. When she saw cars ahead of her on the bridge start to slide around, she tapped her brakes. She stated that it came as a complete shock to her when her car started skidding.

Mrs. Cooper, a passenger in the car driven by her daughter, Geraldine Mills, testified that the highway was clear, that there was no ice upon it and that there was no indication of any slick spots until the car in which she was riding started slipping on the bridge.

Mrs. Pilcher, a defendant and counter claimant, was not even aware that there had been a little snow earlier in the morning. When she was on the bridge she saw a ear in front of her also on the bridge and this caused her to tap her brakes. Her car then seemed to go faster. She testified that there was no prior indication to her of any ice on the highway or bridge.

Wesley Youngman was the driver of one of the cars involved in the collisions. Strangely enough, he was not a party to the action. The first time he suspected any trouble was when the lights on Mrs. Beck’s car started blinking and the car started sliding back and forth across the center line about 50 feet in front of him.

While there was evidence which would have sustained a finding of negligence on the part of one or some, or perhaps all of the drivers involved, there was ample substantial evidence on which the jury might properly find that the accident was not proximately caused by the negligence of any of the parties, or, in other words, that the injuries involved resulted from some cause other than the negligence of any of, ,the parties and that the occurrence was one which a reasonable person would not likely have foreseen.

In holding* that it was error to refuse the' instruction in Industrial Farm Home Gas Co. v. McDonald, 234 Ark. 744, 355 S.W. 2d 174, we said:

* * * Accordingly, we have both parties making statements that certainly bring into issue the question of whether the collision was an unavoidable accident. In fact, the quoted testimon3r of the two principals, together with the testimony about the weather conditions, and the admitted slow speed of each vehicle, was sufficient to warrant the giving of the instruction.”

The cases in which it has been held that the instruction was properly refused or erroneously given have been two-party cases, or cases in which there was no evidence to show an unavoidable accident. See Bennett v. Staten, 229 Ark. 47, 313 S.W. 2d 232; Sullivan v. Fanestiel, 229 Ark. 662, 317 S.W. 2d 713; Burton v. Bingham, 239 Ark. 436, 389 S.W. 2d 876; Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872; Rhoden v. Love-lady, 239 Ark. 1015, 395 S.W. 2d 756; Norman v. Gray, 238 Ark. 617, 383 S.W. 2d 489; Oklahoma Tire & Supply Co. v. Bass, 240 Ark. 496, 401 S.W. 2d 35. In several of these cases it was specifically pointed out that the incident involved would not have occurred unless someone was negligent. An analysis of our cases leads me to the conclusion that the real basis for holding the instruction inapplicable is that the incident before the court could not have occurred except for some: party’s negligence, or, stated conversely, evidence indicating that the cause of the incident was unavoidable is absent.

In one of the more recent decisions holding that the refusal of this instruction was not error, both the pleadings and the evidence indicated that the accident was caused by the negligence of one or both of the parties and was not inevitable. It was unequivocally stated that it could not have happened without someone having been negligent. Rhoden v. Lovelady, supra. In discussing the case of Houston v. Adams, supra, the court there stated that the exceptional circumstances making the instruction permissible exist where the alleged injury resulted from some cause other than the negligence of either party. As demonstrated, there was ample substantial evidence here to support the jury finding that the proximate cause was something other than the negligence of any of the parties to the action. The fact that there would also have been substantial evidence on which to base a contrary finding should be of no consequence. In my opinion, it is not necessary that the facts be such as would warrant a directed verdict on the basis of unavoidable accident to warrant the giving of the instruction.

If this case is not one where the giving of the instruction is warranted, it is difficult to conceive of one where it would be. The situations involving a sudden, unanticipated coronary attack or act of God, suggested in Lewis v. Crocheit, 243 Ark. 377, 420 S.W. 2d 89, are not fundamentally different in principle from defenses asserted here. The principle involved in each factual situation is a contention that there was a proximate cause other than the negligence of any party. This is the very situation mentioned as “exceptional circumstances” in the Rhoden case.

The instruction was particularly appropriate in a multi-party action such as this, where a jury might well believe, in the absence of such an instruction, that they were required to fix the blame on one or more of the drivers.

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

      There were other passengers in some of the cars, but only two are parties to this litigation.

       Houston v. Adams, 239 Ark. 346, 389 S.W. 2d 872; Burton v. Bingham, 239 Ark. 436, 389 S.W. 2d 876; Rhoden, Admr. v. Lovelady, 239 Ark. 1015, 395 S.W. 2d 756; Oklahoma Tire and Supply v. Bass, 240 Ark. 496, 401 S.W. 2d 35; Lewis v. Crocket, 243 Ark. 377, 420 S.W. 2d 89.

       AMI 615 points out that: “A person is not liable to another whose damages were caused solely by an act of God. If an act of God concurs with the negligence of man to proximately cause damages, the negligent person is not excused from liability by the act of God.”


author: George Rose Smith, Justice. Conley Byrd, Justice.

text:
    Willie Lee Paschal v. State of Arkansas
    5368
    432 S.W. 2d 879
    Opinion Delivered October 21, 1968
    [Rehearing denied November 18, 1968.]

      Claude Carpenter Jr. and Boy Finch Jr. for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   George Rose Smith, Justice.

On the night of March 29, 1967, thieves broke into the post office at Emerson and carried away a heavy safe. When the safe was found the next day, more than a mile from the post office, it had been opened with an acetylene torch, and $305.34 had been taken.

Informations were filed against Willie Lee Paschal, Jimmie Dale Paschal, and Henry Lee Cooper, charging burglary and grand larceny. Jimmie Dale Paschal pleaded guilty and testified for the State at the trial of the appellant, Willie Lee Paschal. This appeal is from a verdict and judgment finding Willie Lee Paschal guilty and fixing his punishment at 12 years imprisonment upon each charge.

Jimmie Dale Paschal, according to the undisputed proof, was an accomplice; the court so instructed the jury. Under the statute applicable to felonies, the testimony of an accomplice must be corroborated by other evidence tending to connect the accused with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1964). There is no such corroboration here. Laying aside Jimmy Dale’s testimony, we find no proof whatever that connects the appellant with the commission of the crimes. At most the State proved that the safe was carried away in a station wagon owned by the appellant’s sister (and even that testimony was later stricken from the record as hearsay); but there is no proof, other than the accomplice’s testimony, that tends to connect the appellant with the commission of the offenses.

The judgment must be reversed, but in our conference a question was raised about whether the case should be remanded for a new trial or he dismissed. It was suggested that when the trial court is found to have erroneously refused to direct a verdict for the accused on the ground that the evidence is insufficient to support a conviction, a remand of the case for a new trial would violate the constitutional provision against double jeopardy.

We do not consider that suggestion to be sound. The decision of the accused to appeal is a waiver of the plea of former jeopardy. As Dean Miller puts it:

At the common law neither the defendant nor the King could appeal from a judgment upon a verdict of guilty or acquittal. However, both in England and in the United States, the privilege has been granted to the defendant to appeal from a judgment on a verdict of conviction. Consequently the reason for the old rule making former conviction a proper plea in bar of a second prosecution under such circumstances, has ceased to exist and it is now generally recognized as no infringement on defendant’s rights, to require that if a conviction be set aside on appeal, he should be returned to the trial court for a new trial. [Miller, Criminal Law, § 186 (c) (1934).]

We expressed much the same point of view in Johnson v. State, 29 Ark. 31 (1874), saying:

It is true that, by a constitutional provision as well as by the common law, no man can be twice put in jeopardy of life or limb for the same offense; but, where the first jeopardy has resulted in his conviction, it is rather a merciful interposition of the court, than any invasion of his rights, to set aside the conviction upon his own application in order to afford him the opportunity of another trial.

The precise point was decided in Bryan v. United States, 338 U.S. 552 (1950), where the appellant argued that, upon a reversal of the trial court for its refusal to direct a verdict of not guilty for insufficiency of the evidence, a remand for a new trial would subject him to double jeopardy. In rejecting that argument the court said:

Petitioner’s contention that to' require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction, assigning a number .of alleged errors on appeal, including' denial of his motion for judgment of acquittal. . . . where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial. Francis v. Resweber, 329 U.S. 459, 462.”

In reversing criminal convictions for insufficiency of the evidence we have customarily remanded the cause for a new trial [State v. State, 221 Ark. 527, 254 S.W. 2d 314 (1953); Taylor v. State, 211 Ark. 1014, 204 S.W. 2d 379 (1947)] unless it appears that the case has been fully developed. Edens v. State, 235 Ark. 284, 357 S.W. 2d 641 (1962). In the case at bar there are indications in the record that additional testimony is available to the State.

Reversed and remanded for a new trial.

Byrd, J., dissents.

Conley Byrd, Justice.

I dissent to that part of the opinion remanding this case for a new trial. I do so because it constitutes double jeopardy. In so dissenting I recognize that all reversals for new trials do not constitute double jeopardy.

Here the jury was impaneled and sworn. After the evidence was heard appellant moved for a directed verdict which we now hold the trial court should have granted because there was no legal evidence to sustain a conviction. If the trial court had granted the motion, appellant would have been discharged and former jeopardy would have attached.

In Whitmore v. State, 43 Ark. 271 (1884), we stated:

“A prisoner is in legal jeopardy when he is put upon trial, before a court of competent jurisdiction, upon an indictment which is sufficient in form and substance to sustain a conviction, and a jury is charged with his deliverance. And a. jury is thus charged when they have been impaneled and sworn. The defendant then becomes entitled to a verdict which shall constitute a bar to a new prosecution; and he cannot be deprived of this bar by a nolle prosequi entered by the prosecuting officer against his will or by discharge of the jury.”

In State v. Taylor 180 Ark. 588, 22 S.W. 2d, 34 (1929), we held that a directed verdict of acquittal, even though erroneous, operated as a bar to a future prosecution. See also State v. Gray, 160 Ark. 580, 255 S.W. 304 (1923).

When the trial court lets the jury return its verdict before ruling the evidence is not sufficient to sustain a conviction, has the defendant’s life been put in less jeopardy? If the trial court waits until a motion for new trial to rule that the evidence is insufficient to sustain the conviction, is not the acquittal just as effective as though the matter had been taken away from the jury?

When we rule on appeal that the trial court should have directed a verdict of acquittal, why is not the defendant just as effectively discharged as he would have been had the trial court correctly so ruled before the appeal? Has not the State had its day in court?

It is true that in civil cases we sometimes remand a case for a new trial while holding that a directed verdict should have been granted, but in so doing we are but giving cognizance to the practice whereby trial courts under some circumstances allow plaintiffs the option of taking a non-suit before granting a motion for a directed verdict. However, as pointed out above, the double jeopardy clause, Ark. Const. Art. 2, § 8, prevents a nolle prosequi of a criminal prosecution once the jury has been impaneled and sworn.

In dissenting, I am not unaware of the rule that a person convicted of a crime waives his constitutional protection against double jeopardy when a verdict or judgment against him is set aside at his own instance, either on motion in the lower court or on appeal. However, I am unable to see how or why the waiver rule should be applied when the result of the ruling on appeal is that the defendant should have been acquitted by either the trial court or the jury.

Therefore, I respectfully dissent from that part of the opinion remanding the case for a new trial.


author:
George Rose Smith, Justice.
      John A. Fogleman, Justice.

text:
    W. F. Laman, et al v. Robert S. McCord et al
    5-4598
    432 S.W. 2d 753
    Opinion Delivered October 21, 1968

      John T. Harman and Leon B. Catlett for appellants.

      Rose, Meek, House, Barron, Nash & Williamson for appellees.
   George Rose Smith, Justice.

On April 24, 1967, the North Little Rock city council held a regular meeting at the city hall. At the end of the meeting the council voted to go into closed session with the mayor and city attorney to discuss a Public Service Commission proceeding to which the city was a party. All members of the public, including one of the appellees, were excluded from the closed session.

The appellees, then the editor and managing editor of The Times, a North Little Rock newspaper, brought this suit against the mayor, city attorney, and aldermen; for a judgment declaring that the closed session had been in violation of our Freedom of Information Act. Act 93 of 1967; Ark. Stat. Ann., Title 12, Ch. 28 (Supp. 1967). This appeal is from a judgment declaring that the meeting was in violation of the act and that the city council cannot meet secretly to discuss legal matters with the city attorney.

The Freedom of Information Act, dealing with public records and public meetings, was passed at the first regular session of the legislature following two decisions of this court defining to some extent a citizen’s right to examine public records. Republican Party of Ark. v. State ex rel. Hall, 240 Ark. 545, 400 S.W. 2d 660 (1966); Gaspard v. Whorton, 239 Ark; 849, 394 S.W; 2d 621 (1965). As far as the case at bar is concerned, the pertinent parts of the act are as follows:

Section 2. Declaration of Public Policy. It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall he advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this act is adopted, making it possible for them, or their representatives, to learn and to report fully the activities of their public officials.
# * *
Section 5. Open Public Meetings. Except as otherwise specifically provided by law, all meetings formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and School Districts, and all boards, bureaus, commissions, or organizations of the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds, shall be public meetings.
The time and place of each regular meeting shall be furnished to anyone who requests the information.
In the event of emergency, or special, meetings the person calling sucia a meeting shall notify the representatives of the newspapers, radio stations and television stations ... at least two hours before such a meeting takes place in order that the •public shall have representatives at the aneeting.
Executive sessions will be pernaitted only for the purpose of discussing or considering employaneaat, appointment, promotion, demotion, disciplining, or' resignation of any public officer or employee.
' ■' Executive sessions must never be called for the purpose of defeating the reason or the Spirit of the Freedom of Information Act.
Section 10. [Emergency.] It is hereby found and determined by the General Assembly that the proper functioning of a democratic society is dependent upon the public being informed at all times with respect to the operations of government, and public officials shall at all times be held accountable for their public actions and conduct; . . . that many agencies are now holding executive or closed sessions . . . which is contrary to the spirit of the public business being transacted in open public meetings . . .

At the outset we reject the city’s contention that the Freedom of Information Act is a penal statute, to be strictly construed. It is true that the act (§7) provides that its willful violation is a misdemeanor, punishable by a fine or jail sentence. Such a provision, however, does not make the entire statute penal. For instance, the workmen’s compensation act makes it a misdemeanor for an employer to fail to provide compensation coverage for his workmen. Ark. Stat. Ann. § 81-1339 (Repl. 1960). We have nevertheless held, in passing upon that very duty to provide coverage, that the compensation act is to be liberally construed. Brooks v. Claywell, 215 Ark. 913, 224 S.W. 2d 37 (1949).

Whether a statute should be construed narrowly or broadly depends upon the interests with which the statute deals. Warfield v. Chotard, 202 Ark. 837,153 S.W. 2d 168 (1941). As a rule, statutes enacted for the public benefit are to be interpreted most favorably to the public. Employers Ins. Co.y of Ala. v. Johnston, 238 Ala. 26, 189 So. 58 (1939); Bankers Life & Cas. Co. v. Alexander, 242 Iowa 364, 45 N.W. 2d 258 (1950); Hipp v. Prudential Cas. & Surety Co., 60 S.D. 308, 244 N.W. 346 (1932). In the act now before us the General Assembly clearly declared the State’s public policy: “It is vital in a democratic society that public business be performed in an open and public manner.” We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved.

The language of the act is so clear, so positive, that there is hardly any need for interpretation. The heart of the act, in its application to this case, lies in Section 5: “Except as otherwise specifically provided by law, all meetings formal or informal, special or regular, of the governing bodies of all municipalities . . . shall be public meetings.” On April 24, 1967, the North Little Rock city council was unquestionably the governing body of a municipality. Its closed session was unquestionably a meeting, formal or informal, special or regular. How, then, can it be said that the closed session was not a violation of the statute?

Counsel for the city base their arguments entirely on the attorney-client privilege. They insist that the statute should not be construed to apply to a meeting between the city council and the city attorney. It is predicted that the city will not be able to prepare its cases for trial without disclosing its strategy and its-weaknesses to its adversaries.

We think that, as a practical matter, counsel are unduly apprehensive about the impact of the act upon municipal litigation. The city attorney, with the assistance of the mayor, department heads, and other municipal employees, can certainly prepare a case for trial without discussing his plans in detail with the city council. By analogy, the State of Arkansas is continually engaged in litigation, but there is scant occasion for its Attorney General or its other legal counsel to confer in secret with the members of the General Assembly.

Regardless of such practical considerations, the act itself effectively refutes the appellants’ argument. The legislative mandate cannot be misunderstood: “Except as otherwise specifically [our italics] provided by law, all meetings ... of the governing’ bodies of all municipalities . . . shall be public meetings.” The key word is “specifically,” meaning “explicitly,” “definitely,” “in so many words.” The legislature itself provided a specific exception in Section 5 of the act, having to do with personnel matters. It did not see fit to provide a similar exception for meetings between the city council and the city attorney.

The attorney-client privilege, originally a common-law immunity, now rests upon a section of the Civil Code, adopted in 1869, wdiick provides that an attorney is incompetent to testify about his client’s communications without the client’s consent. Ark. Stat. Ann. § 28-601 (Repl. 1962). For us to say that the section just cited, dealing only with a testimonial disqualification, “specifically” provides that the city council may consult its attorney in secret would simply amount to striking the word “specifically” from the Freedom of Information Act.

A point not to be overlooked is that the legislature necessarily had to make a policy decision in drafting the Freedom of Information Act. On the one hand, to deny to the city council the right to meet in secret with the city attorney might in some instances work to the public disadvantage. But, on the other hand, to allow the council to go into executive session at any time, upon the pretext of consulting the city attorney about legal matters, might readily open the door to repeated and undetectable evasions of the Freedom of Information Act — also to the public disadvantage. Policy decisions such as that are peculiarly within the province of the legislative branch of the government. In this instance that branch has spoken so unequivocally that its command cannot be misunderstood. Our duty is simply to give effect to its mandate.

The trial court was right; its judgment is affirmed.

Harris, C.J. and Fogleman, J., concur.

John A. Fogleman, Justice.

In view of the language of the act requiring that meetings of the governing bodies of municipalities shall be public “except as otherwise specifically provided by law,” I agree that exceptions can only be made by statutory law. I do not think that Ark. Stat. Ann. § 28-601 (Repl. 1962) is amended or repealed by Act 93 of 1967, either expressly or by implication. There is no conflict between these acts because § 28-601 does not specifically provide for private conferences between attorney and client. That section simply affords a measure of protection to the client against disclosure of the subject matter of those conferences. Thus, there is no specific provision of law which permits the governing board of a city collectively to have the advantage of confidential communication with its attorney.

I do not agree, however, that the scope of the attorney-client privilege is as limited as might be inferred from the majority opinion.

The privilege is designed to protect from disclosure not only the communications of client to attorney, but also the advice of the attorney based thereon. The protection is not limited to matters which are the subject of pending cases. This court said in Bobo v. Bryson, 21 Ark. 387:

“ * * * This protection extends to every communication which the client makes to his legal adviser, for the purpose of professional advice or aid, upon the subject of his rights and liabilities. Nor is it necessary that any judicial proceedings in particular should have been commenced or contemplated ; it is enough if the matter in hand, like every other human transaction, may by possibility become the subject of judicial enquiry. The great object of the rule seems plainly to require that the entire professional intercourse between client and attorney, whatever it may have consisted in, should be protected by profound secrecy. See 1st Green-leaf 303.”

The statute not only protects the client from disclosure by the attorney, it also excuses the client from being compelled to disclose his confidential communications to his attorney or the advice given by the attorney. Casey v. The State, 37 Ark. 67.

Only a small fraction of a city council’s need for legal consultation and advice arises in connection with the preparation of cases for trial. Even in pending proceedings the need for confidential communications on settlement possibilities and settlement authority is critical.

I fail to see the analogy between the relationship of the Attorney Genei’al and the General Assembly and that of a city attorney and a city council. The duties of the General Assembly are legislative only. Those of a city are often as much in the executive field as the legislative. Certainly the powers of a city council are not limited to legislative functions. It has many duties which are administrative and ministerial.

The doctrine of separation of powers applied at the state level is not usually applied to municipal corporations and has never been regarded as fully appropriate in the performance of municipal functions. McQuillin, Municipal Corporation, §§ 9.20, 10.3; C.J.S. 489, Constitutional Law, § 106. It has not been the practice in Arkansas to separate these powers to any great degree. In a city such as North Little Rock, corporate authority is vested in a mayor and city council. Ark. Stat. Ann. § 19-901 (Repl. 1956). The city council, in addition to all legislative powers, possesses all corporate powers not prohibited by the General Assembly or its own ordinances. § 19-1011. Among its powers are the management and control of finances and of the property of the municipal corporation. § 19-1011. Consequently, the need of the city council for legal advice and consultation is far different than that of the General Assembly.

There is a strong implication in Morgan v. Wells, 242 Ark. 499, 415 S.W. 2d 323, that the general rule that communications made in the presence of third persons are not privileged or confidential is applicable to the attorney-client relationship. See, Barnhart, Theory of Testimonial Competency and Privilege, 4 Ark. Law Rev. 377, 402.

Thus, there is little doubt that the Freedom of Information Act has deprived each agency named therein (as a body) of free communication with, and unrestrained advice from, its attorneys, in confidence.

It is not our function to look into the wisdom of this action or the advisibility of the public purpose sought to be accomplished. Berry v. Gordon, 237 Ark. 547, 865, 376 S.W. 2d 279; Beaumont v. Faubus, 239 Ark. 801, 394 S.W. 2d 478; McCastlain v. Oklahoma Gas & Elec. Co., 243 Ark. 506, 420 S.W. 2d 893; Haynie v. City of Little Rock, 243 Ark. 86, 418 S.W. 2d 633.


author: George Rose Smith, Justice. Conley Byrd, Justiee.

text:
    City of Fort Smith v. Arkansas State Council No. 38, AFSCME, AFL-CIO, et al
    5-4736
    433 S.W. 2d 153
    Opinion Delivered October 21, 1968
    [Rehearing denied November 25, 1968.]

      James A. Gillcer and Daily & Woods for appellant.

      Sam Sexton Jr. for appellees.

      Gayle Windsor; Spitzberg, Mitchell & Hays, Glenn Tiimmerman & William G. Fleming briefs amuicus curiae.
   George Rose Smith, Justice.

Under Amendment 34 to the Arkansas Constitution municipal employees have the right to belong to labor unions, but they do not have the right to strike against the government. Potts v. Hay, 229 Ark. 830, 318 S.W. 2d 826 (1958). The principal question here is whether a city is under a duty to engage in collective bargaining with a union representing city employees. This appeal is from a decree holding that the city must bargain in good faith with the union representatives. The other issues in the case are of comparatively minor importance.

The record runs to almost 500 pages, but the controlling facts are not really complicated. Many employees of the city of Fort Smith — the exact number is not now material — joined the appellee union, State Council No. 38 of the American Federation of State, County,. and Municipal Employees, AFL-CIO. On June 17, 1968, Jeane Lambie, the state president of the union, sent a letter to the city officials, asking that the union be recognized by the city for the purpose of collective bargaining about wages, hours, and conditions of employment. On the same day Mrs. Lambie appeared at a meeting of the city directors and renewed her request for recognition. No formal action was then taken by the directors.

On the following- day the directors unanimously adopted a written statement of policy which declared, among other points, (a) that the determination of hours of work, salary, etc., was the responsibility of the board of directors and not a matter to be negotiated, (b) that a personnel officer had been made available to hear grievances, (c) that city employees do not have a right to strike or to picket, and (d) that should city employees stop work or picket they would be treated as having quit their jobs and would, be replaced.

That statement was approved on June 18. On the next day the city, administrator (a position similar to that of a city manager) attempted to arrange a series of' departmental meetings at which the city directors’ statement of policy would be read to the municipal employees. The first meeting scheduled was to have been with the sanitation department employees, who collected trash and garbage. It is quite apparent from the testimony that those on each side of the dispute were maneuvering to make it appear that the opposite side was in the wrong. That is, the city wanted it to appear that the workers had quit their jobs, while the union wanted it to appear that some of its members had been discharged because of their union membership. On this issue of fact the chancellor upheld the union’s position. We think the weight of the evidence supports that conclusion.

After the sanitation department meeting, at which about twenty employees were discharged, members of tlie -union set up picket lines at several municipal facilities. A great many of the city’s non-uniformed employees (the police and fire departments have not taken any part in the dispute) refused to cross the picket lines, so that some municipal services — especially garbage collection — were curtailed or discontinued entirely.

On June 20 the city filed this suit for an injunction against the picketing and other assertedly illegal acts. The union’s answer and counterclaim asked that the city be required to bargain collectively with the union’s representatives. Testimony was taken at several hearings.

The chancellor eventually entered two temporary orders, a final order, and a supplement to the final order, all of which are before us for review. The court found that the city’s refusal to bargain with the union was contrary to law. The city was ordered to reinstate the discharged employees, and the employees were ordered to return to work. The city was enjoined from letting contracts to third persons for the performance of municipal services, such as garbage collection. The city was ordered to bargain collectively and in good faith with the union. To that end the court appointed three special masters in chancery, who were directed to assist the parties in their negotiations (in the manner of a mediation board) and to report progress to the court from time to time.

The court was in error in holding that the city was under a duty to bargain with the union’s representatives. In the absence of a statute to the contrary the cases have held almost without exception that a municipality or other political subdivision is under no duty (which we take to mean a legally enforceable duty) to bargain collectively with its employees about wages, hours, or working conditions. Nutter v. City of Santa Monica, 74 Cal. App. (2d) 292, 168 P. 2d 741 (1946); Fellows v. LaTronica, 151 Colo. 300, 377 P. 2d 547 (1862); Miami Water Works Local No. 654 v. City of Miami, 157 Fla. 445, 26 So. 2d 194, 165 A.L.R. 967 (1946); Local Union 283, International B.E.W. v. Robison, 91 Idaho 445, 423 P. 2d 999 (1967); Wichita Public Schools Employees v. Smith, 194 Kan. 2, 397 P. 2d 357 (1964); City of Springfield v. Clouse, 356 Mo. 1239, 206 S.W. 2d 539 (1947), distinguished but not overruled in State ex rel. Moore v. Julian, 359 Mo. 539, 222 S.W. 2d 720 (1949).

Basically, the reason for the rule is that the fixing of wages, hours, and the like is a legislative responsibility which cannot be delegated or bargained away. Several aspects of the matter were discussed in the Wichita case, supra, where the court said:

The entire matter of qualifications, tenure, compensation and working conditions for any public employee involves the exercise of governmental powers which are exercised by or through legislative fiat. Under our form of government public office or public employment cannot become a matter of collective bargaining and contract.
The objects of a political subdivision are governmental — not commercial. It is created for public purposes and has none of the peculiar characteristics of enterprises maintained for private gain. It has no authority to enter into negotiations with labor unions concerning wages and make such negotiations the basis for final appropriations. Strikes against a political subdivision to enforce collective bargaining would in effect amount to strikes against the government.

Some cases have held that a municipality or school district may voluntarily engage in collective bargaining. Norwalk Teachers’ Assn. v. Board of Education, 138 Conn. 269, 83 A. 2d 482 (1951); Chicago Division of the Education Assn. v. Board of Education, 76 Ill. App. 2d 456, 222 N.E. 2d 243 (1966). Those cases do not assist the appellees, for here the city directors are unwilling to engage in such bargaining. In one case cited by the appellees, Local 266, International B.E.W. v. Salt River Project Agri. Imp. & Power Dist., 78 Ariz. 30, 275 P. 2d 393 (1954), the court did sustain the union’s right to strike against an improvement district, but one of the reasons given was that the district was owned by private landholders; so the strike was not against the public.

We do not agree with the appellees’ argument that the city is compelled by Ark. Stat. Ann. § 81-201 (Repl. 1960) to engage in collective bargaining. 'That section reads: ‘ Freedom of organized labor to bargain collectively, and freedom of unorganized labor to bargain individually is declared to be the public policy of the State under Amendment 34 to the Constitution.” That section is merely a preamble to Act 101 of 1947 — the enabling act for Amendment 34. Except for that prefatory statement of policy the act, like the amendment, deals only with the denial of employment on the basis of the employee’s membership or nonmembership in a labor union. We are unable to read into that preamble, which is merely a statement of policy expressed in the most general terms, a specific command that municipalities engage in collective bargaining when requested to do so. Had the General Assembly intended that change in the law it would certainly have used more explicit language to accomplish its purpose.

During the oral argument counsel for the appellees, envisaging the possibility that the city might not be compelled to bargain collectively, suggested that nevertheless the union’s right to present its grievances to the city officials ought to be recognized. No doubt that right does exist. The Bill of Rights protects the right of the people to assemble and to petition the government by address or remonstrance. Ark. Const., Art. 2, § 4. The Colorado court, in the Fellows case, sv/pra, made this pertinent observation, with which we agree:

A proper exercise of the legislative function might well involve consultation and negotiation with spokesmen for public employees, but the ultimate responsibility rests with the legislative body and, under the record here presented, that responsibility cannot be contracted away.

We must decline the appellees’ suggestion that we attempt to define precisely the extent to which the city officials are required to listen to the grievances of its employees, whether presented individually or collectively. There is no limit to the various fact situations in which the issue might arise. Experience has shown again and again that the courts’ best course is to decide concrete cases as they are presented in adversary proceedings, rather than to speculate about theoretical or academic questions that may never arise in actual litigation.

We conclude that the court was in error in directing the city to bargain in good faith with the union, with the implication that a failure to do so might be punishable as a contempt of court. It follows from our decision upon the principal question that the court also erred in appointing what amounted to a mediation board and in enjoining the city from letting contracts for the performance of municipal services.

That part of the decree that directs the city to reinstate those employees who were wrongfully discharged is affirmed; in other respects the decree is reversed.

Harris, C.J., and Jones and Byrd, JJ., concur.

Conley Byrd, Justiee.

In concurring I place much more emphasis on the fact that Ark. Stat. Ann. § 81-201 (Repl. 1960), makes collective bargaining the public policy of this state and that the statute is also applicable to municipalities. It is true that Acts 1947, No. 101, of which § 81-201 is the first section, provides no sanction for an employer who refuses to recognize a union and does not attempt to change public policy prohibiting strikes against a municipality or other government agency. However, I think the majority opinion is not exactly correct when it says the city has no duty to bargain collectively with its employees about wages, hours and working conditions. My understanding of the act is that the employees have no recourse to the courts for the enforcement of their right of collective bargaining where the city refuses their request.

This may be nothing more than the difference between accentuating the positive instead of the negative, but I certainly think that in view of the state’s public policy, an employee of the city not only has the right to belong to a union, but has the correlative right to bargain over wages, hours and working conditions with the city through. his union representative.

The lack of recourse to the courts or to the use of a strike may water down the effectiveness of the union’s ability to represent him, but it does not prevent recourse to education of the public through publicity. It must be remembered that this phase of a union’s activities has its effect upon community thinking. It is common knowledge that many people who work with their hands are incapable of expressing their grievances even after they have found the proper forum. Just as business finds it necessary to employ advertising agencies to sell its products or its message to the public, I think a man through his union dues should be entitled to the services of a union representative to settle or publish his grievances concerning the things most important to him, i.e., grievances concerning wages, hours and working conditions.

Concurring.

Harris, C.J. and Jones, J., join in this concurrence.


author: Paul Ward, Justice. Conley Bykd, Justice.

text:
    Jack Rheuark v. State of Arkansas
    5371
    435 S.W. 2d 786
    Opinion Delivered October 21, 1968

      Sol Russell for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Paul Ward, Justice.

On July 12, 1967 Jack Rheuark (appellant) entered a plea of guilty to possessing stolen property, and ivas sentenced to serve fifteen years in the penitentiary. This sentence, however, was suspended and appellant was placed on probation for five years.

On August 17, 1967 appellant was brought before the court to show cause why the suspended sentence should not be revoked. After hearings on different occasions, the suspended sentence was revoked, and appellant was ordered to serve his sentence.

On April 24, 1968 Attorney Sol Russell, having previously been appointed to represent appellant, filed a petition for' a new trial. Pursuant to said petition the trial court ordered the superintendent of the penitentiary to have appellant present on May 4, 1968 for a hearing. A hearing was held, and on May 7, 1968 the trial court denied the petition, and appellant was granted an appeal to this Court.

On appeal appellant urges only one point for a reversal. It reads:

“The trial court erred in revoking appellant’s probation and sentencing at a time when appellant was not represented by counsel and was not afforded the opportunity to call witnesses in his own behalf. ’ ’

After a careful study of appellant’s exhaustive and excellent brief we feel that it is necessary to discuss and answer only two decisive questions. One, was appellant adequately represented by counsel when his suspended sentence was revoked. Two, did the trial court abuse its sound discretion in revoking the suspended sentence. For reasons hereafter stated we have concluded that no reversible error has been shown.

One. As contended by appellant, a hearing was had before a special judge on August 21, 1967 to determine whether the suspended sentence should be revoked, and it is true that appellant was not represented by an attorney. However, when this fact was brought to the attention of the special judge, no decision was reached, and the hearing was postponed to the following day — August 22. At this hearing appellant was represented by an appointed attorney — B. L. Church, Jr. of Little Rock. The record reveals that Attorney Church conferred with appellant, and :was informed of the accusation of an attempt by appellant to kill his wife. The record also reveals that Church argued to the court that this was only a family squabble and not sufficient to justify a revocation. At the close of the hearing the court revoked the suspended sentence.

Conceding, for the purpose of this opinion, that appellant was entitled to be represented by an attorney at the revocation hearing, we think it is clear and undisputed that he was so represented in this case. In the absence of any showing to the contrary, we must assume Attorney Church ably represented appellant.

Two. In our opinion the trial court had ample grounds and sufficient reason for revoking appellant’s suspended sentence. There was testimony that, after being sentenced, appellant not only attempted to commit murder, but that he was guilty of theft and disturbing the peace.

The rule applicable to this kind of a situation is that revocation is a matter that lies Avithin the sound discretion of the trial court. See the following recent decisions of this Court: Smith v. State, 241 Ark. 958 (p. 963), 411 S.W. 2d 510; Thornton v. State, 243 Ark. 829 (p. 831), 422 S.W. 2d 852, and Blake v. State, 244 Ark. 37 (p. 43), 423 S.W. 2d 544. In the Smith case Ave said:

“The suspension of pronouncement of sentence upon convictions rests in the sound discretion of the trial courts in this State . . . and the sufficiency of evidence for the revocation of such suspension also lies Avithin the sound discretion of the trial court.”

In the Thornton case we said it Avas within the sound discretion “to suspend sentences ... ”, and from the Blake case we quote:

“Furthermore, we have on many occasions held that the suspension of a sentence rests in the sound discretion of the trial court and that the sufficiency of the evidence for revocation of such suspension also lies within the sound discretion of the trial court.”

In view of what we have heretofore said, we are unwilling to say the trial court, in this case, abused its sound discretion, and its judgment is therefore affirmed.

Affirmed.

Brown, Fogleman and Byrd, JJ., concur.

Conley Bykd, Justice.

I concur in the result reached, but on a different ground.

The record shows that the Honorable John Bailey was sitting as Special Judge during the vacation of Judge William J. Kirby. When petitioner Kheuark appeared on August 21, 1967, he was not represented by counsel. When the lack of counsel was called to the judge’s attention, he made arrangements for counsel to be appointed and consult with petitioner. After counsel consulted with petitioner, the judge interrogated petitioner relative to a stolen pistol. At this time, and in the presence of counsel, petitioner admitted he had carried the stolen pistol across town for the purpose of shooting Winston Talley. This admission only confirmed the contents of a letter petitioner had written to Judge Kirby. After this admission, petitioner stated to the court and his attorney — “Let’s go and get it over with.” — and then pleaded with the court not to place the charges his wife had against him as a hold on him.

For these reasons I find that petitioner was represented by counsel at the time his suspended sentence was revoked, and that he waived the opportunity to call witnesses in his own behalf.

Brown and Fogleman, JJ., join in concurrence.