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

text:
    Carolyn E. CHUDY v. Dr. Amail CHUDY
    5-4315
    420 S. W. 2d 401
    Opinion delivered October 30, 1967
    [Rehearing denied November 27, 1967.]

      Frances B. Holtzendorff, for appellant.

      Smith, Williams, Friday & Bowen, for appellee.
   Paul Ward, Justice.

This litigation relates to the immunity of a doctor from liability for certain acts or conduct. To better understand the issue, how it arose, and how it reaches this Court, we set out below a brief -summary of the background facts.

On August 19, 1965 Mrs. Carolyn E. Chudy (appellant here) filed suit for a divorce from her husband; Brunan S. Chudy. On August 30, 1965 Dr. Amail Chudy (appellee here, and a brother of Brunan S. Chudy) allegedly signed a false certificate stating appellee was in need of psychiatric treatment. On the same day a hearing was held before the Probate Court relative to the condition of appellee, and the presiding judge ordered her to be taken to the Arkansas State Hospital for Nervous Diseases. Appellee was held in said hospital for one day when she was released, on a petition for a writ of habeas corpus, by the Probate Judge.

On November 17, 1965 appellant filed a Complaint, and later an Amended Complaint, in circuit court against appellee wherein she made, in substance, the following allegations :

(a) The defendant wilfully and intentionally made and signed a false statement or certificate, stating that she was psychotic and in need of psychiatric care, at the time appellee knew said statement was false.
(b) Appellee’s purpose in making this statement was to have it submitted to the Probate Court in order to have her committed for psychiatric treatment in said hospital, knowing at the. time she was not psychotic.
(c) At all times she was “sane and competent and free from psychosis and was not in need of mental or psychiatric care.”
(d) Appellee was engaged in a conspiracy with his brother, Bruñan S. Chudy, for the purpose of as--sisting the said Brunan S. Chudy in deterring her in the aforementioned divorce proceedings, and to falsely and unlawfully deprive her of her liberty, and to humiliate, intimidate and embarrass hér.
(e) She is the mother of three children who live with her, and she has suffered anxiety, humiliation and embarrassment over said detention and deprivation of her liberty, as well as from public notoriety, and that she will continué to so suffer.
(f) She has suffered compensatory damages in the sum of $100,000 and punitive damages in the sum of $50,000 for which she prays judgment.

To the above complaint appellee filed a" Motion for Summary Judgment which was sustained by the trial court, hence this appeal.

It is our conclusion that the complaint states 8 cause of action, and that the trial court erred in granting the Motion for.Summary Judgment. It.is wéll settled by decisions of this Court that the Motion does not lie when material facts are in issue. Griffin v. Monsanto Co., 240 Ark. 420, 400 S. W. 2d 492.

If, as alleged, appellee wilfully, knowingly and maliciously executed the false certificate and conspired with appellant’s husband to deprive (and did deprive) appellant of her liberty and freedom, causing her to suffer as pleaded, she has a right to recover damages in a court of law.

In the case of Comfort v. Young, 69 N. W. 1032, Young filed “with the board of insane commissioners . . . charging that plaintiff [Comfort] was and is insane, and a fit subject for custody and treatment in the insane hospital of the state.” There it was held the trial court properly instructed the jury as follows:'

“ ‘The real question for you to determine first in this case is: Was the information made by the defendant and filed by him honestly and in good faith, upon probable cause ...”

The case of Brandt v. Brandt, 3 N. E. 2d, 96, 286 Ill. App. 151, is in point with the above holding that such allegations are matters for the jury to consider. There, plaintiff (appellant) sued her former husband (and others) alleging the defendants “conspired to commit plaintiff to a hospital for the insane unlawfully and improperly.” The case was tried by a jury which found appellant had not proved the allegations. On appeal, the Court cited cases which held “that one who maliciously and falsely sues out an inquisition of lunacy may be liable to the party injured.” The Court then said: ‘ ‘ There is no question of the law in that respect, . . . hut that is wholly beside the question” because there “is no proof here from which a conspiracy can be inferred.” Of course, in the case before us, appellant was not even allowed to offer proof of her allegations. In accord with the rule above announced are other cases cited in 145 A.L.R. at page 705 et seq.

In reply to the above, and in urging an affirmance of the trial court, appellee makes this statement: “The sole question before the Court in this case is the application of the defense of absolute privilege.” In support of that position appellee cites cases which we will examine and which, we think, can be distinguished and are not applicable under the pleadings in the case here under consideration.

(a) Hurley v. Towne et al, 155 Me. 433, 156 A. 2d 377, is a case where the doctor was called, as an expert witness, before the committing proceedings, and there the doctor was immune from liability for that reason. In the case before us appellee was not called and he was not a witness. The court pointed out that “every person shall have a remedy at law for every wrong,” but that public policy requires that witnesses shall not be restrained by fear.

(b) MeZullo v. Maletz, 331 Mass. 233, 118 N. E. 2d 356, was an action based on Tort, where the doctor “was called upon to perform an important duty,” i. e. to sign a certificate of commitment. There the Supreme Court also pointed out that “Plaintiff does not contend that a case at Common Law is made.”

(c) Dyer v. Dyer, 178 Tenn. 234, 156 S. W. 2d 445, is where appellant sued her former husband and two doctors for damages for false imprisonment in the state hospital. The- trial court had sustained a demurrer to the complaint. On appeal the Supreme Court affirmed. In doing so, however, the Court said that the statements of appellees “were made in a judicial proceeding under

oath, in response to a call for their professional opinion and were, therefore, absolutely privileged.” (our emphasis) The Court again said that the statements were “responsive to questions propounded to the defendant by counsel while being examined ... in a judicial proceeding . . (our emphasis.)

In the case here under consideration this is the situation: Appellee was not a witness in a judicial proceeding and he was not called by anyone to make a statement or certificate. He is charged with conspiring with the husband of appellant to have her taken from her home and children and placed in the State Hospital for Nervous Diseases, and is charged with doing so wil-fully, falsely, and maliciously to hinder the divorce proceeding and to cause her embarrassment and humiliation. It is our conclusion that appellant has a right to try to prove the allegations in her complaint.

Reversed.

Hakris, C. J. and Byrd, J., dissent.

Jones, J., not participating.

Conley Byrd, Justice,

dissenting. I dissent from the majority opinion because I consider the statement made by appellee, Dr. Amail Chudy, in connection with the lunacy proceedings of appellant, Carolyn E. Chudy, to be an absolute privilege given by the courts, not only of this state but of other states. In setting forth my reasons it must be kept in mind that this matter went off in the trial court on a motion for summary judgment after the parties had interchanged interrogations and requests for admissions of fact, and had made certain stipulations regarding the record in the lunacy proceedings.

The amended complaint filed May 6, 1966, concerning the conduct of Dr. Chudy, alleges:

“That at the time herein mentioned, plaintiff was married to defendant’s brother, Brunan S. Chudy. That at the time of the acts herein complained of, an action for divorce was pending between the plaintiff and the said Brunan S. Chudy in the Chancery Court of Pulaski County, Arkansas.
“That over a period of time, the plaintiff had been a patient of the defendant for ailments and illnesses which were not of a serious nature, but had not consulted with the defendant in a professional capacity since the forepart of July, 1965, at which time she visited at defendant’s office for the purpose of having her leg x-rayed for a physical ailment from which plaintiff in the past had suffered.
“That on August 30, 1965, the defendant wilfully and intentionally made and signed a false statement or certificate, stating that plaintiff was psychotic and in need of psychiatric care, and at the time of making such statement, the defendant had knowledge that such statement or certificate was wilfully false.
“That defendant’s purpose in making the statement referred to above was to submit or have the statement submitted to the Probate Court of Pulaski County, Arkansas, in order to have plaintiff committed for psychiatric treatment in the Arkansas State Hospital for Nervous Diseases, knowing that plaintiff was not insane or psychotic at the time of making such statement.
“That as a result of defendant’s wilful and false diagnosis of her condition, on August 31, 1965, she was picked up at her home by two deputy sheriffs of Pulaski County, Arkansas, and without her consent and over her protest and against her will, she was taken by said deputies into custody and incarcerated in the Arkansas State Hospital for Nervous Diseases, where she was detained further against her will all the remaining portion of that day, over night and until the afternoon of the next day, namely, September 1, 1965, at which time she was released by virtue of a hearing and court order of the Pulaski Chancery Court.
“That at all times, the said Carolyn E. Chudy was sane and competent and free from psychosis and was not in need of mental or psychiatric care.
“That the defendant wilfully, falsely caused plaintiff to be deprived of her liberty and detained without just cause.
“That the defendant was engaged in a conspiracy with his brother, Brunan S. Chudy, for the purpose of assisting the said Brunan S. Chudy in deterring plaintiff in the divorce proceedings between them and to falsely and unlawfully deprive plaintiff of her liberty and to humiliate, intimidate and embarrass her.
“That the wilful, intentional and false conduct upon the part of the defendant was the proximate cause of plaintiff’s injuries and damages hereinafter described.”

The false statement mentioned in the amended complaint was on file in the lunacy proceedings and was made part of the record here by stipulation of counsel. It provides:

“TO WHOM CONCERNED:
Re: Mrs. Brunan S. (Carolyn)
Chudy
Our File: Chart No. 1267
After conversation by telephone on August 30, 1965 and considering the many factors regarding the mental status of the above named patient, it is our feeling that she should be under psychiatrist care.
Sincerely,
/s/ Amail Chudy, M.B.”

Our statute on application for commitment of dangerous patients to the State Hospital is Ark. Stat. Ann. § 59-234 (Supp. 1965). It provides:

“If at any time the Superintendent shall determine that any patient admitted to the State Hospital under any provision of this Act [§§ 59-299 — 59-242] is dangerous to himself or to society, the Superintendent shall request a writ of commitment from the Probate Court of the County in which the patient lives. This request for commitment shall he accompanied by a certificate from the medical staff of the State Hospital setting forth the facts as to the patient’s mental condition and that he or she is dangerous to himself or to herself, or to society. The Superintendent may also request a writ of commitment for any patient for whom he deems it to the best interest of the patient that such a writ be issued, for the purpose of detaining the patient in the hospital for such time as the Superintendent deems necessary for proper care and treatment. In such cases the presence of the patient before the Court need not be required. If any Health Officer, or any practicing physician, regularly licensed by the state of Arkansas, believes that any person residing in the county, who is not a patient in the State Hospital, is so suffering from mental disease as to be dangerous to himself or to so-ci y and such person cannot be taken peaceably to the State Hospital as provided in other Sections of this Act, then such Health Officer or physician shall certify this fact to the Judge of the Probate Court of such county for a hearing, copies of such certification to be delivered to the person affected thereby, or to his guardian, or to his nearest relative, if any, whereupon said court shall hold a hearing either in regular term or in vacation in chambers, receiving such evidence as may be offered by all parties interested, after which he shall, if the evidence justifies, issue an order of commitment to the State Hospital. In such cases the presence of such person before the Court need not be required.
“Any patient in any public or private hospital in this State which maintains facilities especially designed for the care and treatment of the mentally ill, and which is .approved and licensed by the State Board of Health, may be detained in said hospital for diagnosis, care and treatment of any mental disorder, including acute psychosis induced by alcoholism or drug addiction, or, at the discretion of the government (governing) head ox-board of any such hospital, may be admitted for such service, provided a regularly practicing psychiatrist duly licensed by the State of Arkansas shall certify in writing to such hospital that such patient is suffering from psychosis and that the patient is likely to be harmful to himself, herself or society. A patient so detained by or admitted to any hospital described in this section may be confined to the premises of such hospital until such time as a regularly practicing psychiatrist licensed by the State of Arkansas shall certify in writing to such hospital that the patient is no longer harmful to himself, herself or society.
“No action shall he brought against any hospital described in this Section, nor against its governing body or the members thereof, nor against its superintendent, administrator, agents, representatives, servants and employees, nor against any nurse or physician who confines and detains, or who aids in the confinement and detention, of any patient in the manner prescribed by this section, to recover damages therefor or incident thereto; provided that the immunity herein granted shall not be held to extend to any person who shall wilfully make and sign a false certificate to a hospital that a person is suffering from psychosis nor to any one who confines or detains a person in a hospital with knowledge that any such certificate is wilfully false.
“Probate Courts in this State shall have, and are hereby granted, the same jurisdiction and authority to commit persons to any private hospital in this State equipped to care for persons suffering from psychosis, as in this Section above set forth, as they may now or hereafter be empowered by law to commit to the State Hospital; provided any such private hospital be willing to accept and care for patients so committed to it. A patient so committed to a private hospital by-the Probate Court may be discharged therefrom upon a written certificate by a regularly practicing psychiatrist duly licensed by this State, that he is no longer harmful to himself, herself or to society, or when transferred, by order of the Probate Court which committed the patient, to another hospital or institution, or when discharge of said patient shall be ordéred by said Probate Court or other Court having jurisdiction.
“Nothing in this Section shall be construed to prevent voluntary entry by patients in and their admissions to public and private hospitals by applications of the patients or others in their behalf. [Acts 1943, No. 241, § 6, p. 498; 1957, No. 413, § 2, p. 1151; 1961, No. 77, § 1, p. 175.] ” (Emphasis supplied.)

The history of the foregoing statute shows that it was enacted in parts, the first paragraph having been a portion of Act 241 of 1943 and the subsequent paragraphs enacted as amendments thereto. The italicized paragraph, which recognizes the liability of doctors who make wilfully false statements, refers to situations where a patient is in a public or private hospital and is retained there on a doctor’s letter or certificate without benefit of a lunacy inquest.

The first paragraph of the statute makes it clear that Dr. Chudy’s statement did not provide a sufficient basis on which the probate court could legally have issued an order of commitment, because the letter certainly does not state that Mrs. Chudy was dangerous to herself or to society. Not only is it obvious that the doctor’s statement was made for use of the probate court in connection with Mrs. Chudy’s lunacy inquest, but Mrs. Chudy in her complaint alleges that defendant’s purpose in making the statement was to submit or have the statement submitted to the probate court. Therefore, as will be seen by our decisions hereinafter discussed, Dr. Chudy’s statement comes under the absolute privilege given to relevant or material statements made in testimony, pleadings, or other papers in judicial proceedings.

In Johnson v. Dover, 201 Ark. 175, 143 S. W. 2d 1112 (1940), we had before us a suit for slander based on a statement a witness had made in court. In upholding the witness’s statement as a privileged communication for which an action did not lie, we pointed out that the general rule of American cases is that statements made by a witness in the regular course of a judicial proceeding are absolutely privileged where they are relevant and pertinent to the subject of inquiry, even though false or malicious.

Becovery for defamation against physicians for similar statements made in lunacy inquests has been denied in Gilpin v. Tack, 256 F. Supp. 562 (W. D. Ark. 1966); Fisher v. Payne, 93 Fla. 1085, 113 So. 378 (1927); Dunbar v. Greenlaw, 152 Me. 270, 128 A. 2d 218 (1956); Mezullo v. Maletz, 331 Mass. 233, 118 N. E. 2d 356 (1954); and Jarman v. Offutt, 239 N. C. 468, 80 S. W. 2d 248 (1954). See Annot., 73 A.L.R. 2d 333 § 7 (1960).

Thus it is seen that appellant’s only complaint against Dr. Chudy concerns the statement he made for use in the lunacy inquest. The doctor’s statement is certainly relevant and pertinent to the issue that was before the trial court and, under the adjudicated cases of this and other courts as set out above, was a privileged communication upon which no action for defamation can lie.

The majority makes much of appellant’s allegation that Dr. Chudy conspired with appellant’s husband to deprive her of her liberty and freedom, which is a charge in the nature of malicious prosecution. The majority opinion in this connection fails to consider the effect of the discovery proceedings. When the discovery proceedings had by the parties are considered, it is obvious that the only fact upon which appellant relies for recovery against Dr. Chudy is his making of the written certificate for use in the lunacy inquest as required by the statute.

Under Ark. Stat. Ann. § 59-234, supra, a person can not be committed to the State Hospital except on the certification of a regularly licensed physician that the person “is so suffering from mental disease as to be dangerous to himself or to society and such person cannot be taken peaceably to the State Hospital.” As a practical matter, doctors do not make such certifications except on the request of some member of the person’s family. A physician who makes such certification is always susceptible to the allegation that he conspired with some member of the family to deprive the person of his liberty without just cause. Consequently, every doctor making such certification, after today’s majority opinion, will place himself in the position of having to defend his action in court against the accusation of conspiracy.

Therefore I would sustain the motion for summary judgment on the basis as alleged in the amended complaint that it was a statement submitted to the probate court of Pulaski County, Arkansas, in accordance with our lunacy statute, Ark. Stat. Ann. § 59-234, and is therefore privileged.


source: Caselaw Access Project

author: Paul Ward, Justice. George Rose Smith, Justice, J. Fred Jones, Justice,

license: Public Domain

text:
    SHELBY ELECTRIC CO. and Maryland Casualty Co. v. Billy DURAN
    5-4311
    419 S. W. 2d 798
    Opinion delivered October 30, 1967

      John M. Shackleford, Jr.,, for appellants.

      Clint Huey, for appellee.
   Paul Ward, Justice.

This is a Workmen’s Compensation case, and the essential facts are not in dispute.

On May 9, 1961 Billy Duran (appellee here), while working for Shelby Electric Company (appellant here), suffered an injury to his right foot. A claim was filed for compensation. At a hearing before the referee ap-pellee was adjudged to have suffered a permanent partial disability of fifty percent to his right leg below the knee. The referee allowed money compensation and also héld that appellee was entitled to receive as compensation one pair pf orthopedic shoes. An Order in accord with the above findings was entered by the referee on October 12, 1962 and no appeal was taken. The shoes were furnished, and the last payment to appellee was made on December 7, 1964.

On January 20, 1966 [one year and forty-four days after the last payment and more than four years after the injury] appellee filed a claim with the Commission for another pair of orthopedic shoes, and a hearing was had before the referee. Appellant controverted the claim, claiming it was barred under Ark. Stat. Ann. § 81-1318 (b) (Repl. 1960) which reado:

“In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred' unless filed with the Commission within one year from the date of the last payment of compensation or two years from the date of accident, whichever is greater.”

The referee held the claim was not barred; On appeal to the Commission, it held the claim was barred and, on appeal, the circuit court reversed the Commission, holding the claim was not barred by the above quoted statute —hence the appeal by appellant to this Court.

The only question before this Court is whether appellee’s claim is barred under the statute previously quoted.

It is the contention of appellee here that this claim was not barred, and that his claim was timely filed under the provisions of Ark. Stat. Ann. § 81-1311 (Repl. 1960) which, in pertinent part, reads:

“The employer shall promptly provide for an injured employee such medical, surgical or other attendance or treatment, nurse, and hospital service, medicine, crutches and apparatus as may be necessary during*'the period of six months after injury, or for such time, in excess thereof as the Commission, in its discretion, may require.”

The contention of appellee is refuted, and must be denied, under our holding in the case of Key v. Ark. P. & L. Co., 228 Ark. 585, 309 S. W. 2d 190, where we had under consideration both of the statutes set out above. As stated in the opinion, the only issue before the court was whether the limitations provided by § 18 apply to a claim for medical treatments. We rejected the contention by Key that his claim was not barred by the statute of limitations as set out in § 18 which includes the above quoted § 81-1318 (b) but that it was timely filed under the above quoted § 81-1311. In rejecting Key’s contention we said:

“We readily agree with appellant that the above statute empowers the Commission to require medical and hospital expenses indefinitely provided a claim therefor is filed within one year after the date of the last payment.”

It cannot be reasonably argued that although § 81-1311 applies to medical and hospital treatment it does not apply to crutches and apparatus, since both kinds of relief are included in the same statute and in the same sentence.

It follows therefore that the judgment of the trial court must be, and it is hereby, reversed.

Reversed.

Smith and Fogleman, JJ., concur.

Jones, J., dissents.

George Rose Smith, Justice,

concurring. Under the Key case, cited by the majority, we are compelled to hold that this claim is barred by limitations. But it ought not to be. Statutes of limitation are intended to put stale demands at rest, when pertinent proof may no longer be available and when other accidents or illnesses may have contributed to the claimant’s condition.

Those considerations do not apply in this instance. The destruction of the appellee’s heel is a permanent thing that is not going to change with the passage of time. The issne of causation has been set at rest once and for all. In the circumstances the controlling statute might well be amended. This concurring opinion is intended merely to call the matter to the attention of the General Assembly.

Fogleman, J., joins in this concurring opinion.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case and I would affirm the decision of the trial court. As a practical matter, there is a lot of difference between medical and hospital treatment and crutches and apparatus, as set out in Ark. Stat. Ann. § 81-1311 (Repl. 1960), and I can think of no better case pointing up the difference than the one before us.

Here we have an injured workman, fully and completely recovered from his injury insofar as medical and hospital treatment is concerned. His healing period has ended and he has been paid all the monetary compensation he is entitled to under the Workmen’s Compensation Law, for his temporary as well as his permanent partial disability. The only thing wrong with appellee now, as a'result of his accident, is that he simply has no heel on one of his feet. There is no question now, and never will be, that he lost his heel as a result of this accident; consequently, there is no possibility of him ever claiming an apparatus, in the form of an orthopedic shoe, for some related condition not attributable to his accidental injury.

Certainly the furnishing of such apparatus by the employer should not toll the statute of limitations on a claim for additional compensation or for medical or hospital treatment, but certainly the appellee’s failure to demand a new pair of orthopedic shoes at least once a year, regardless of the condition of the ones already furnished to him, should not divest the Workmen’s Compensation Commission of its statutory discretion in requiring the employer to furnish crutches and apparatus for such time, as may he necessary, in excess of the period of six months after injury.

I would affirm the circuit court in remanding this case to the Workmen’s Compensation Commission for the exercise of its statutory discretion.


author: Lyle Brown, Justice.

text:
    Jack Franklin ADAMS v. Charles T. WOODFIN, Adm’r, et al
    5-4316
    419 S. W. 2d 796
    Opinion delivered October 30, 1967

      E. J. Butler, Phil Hicky, for appellant.

      Barrett, Wheatley, Smith & Beacon, for appellees.
   Lyle Brown, Justice.

Appellant Adams by this appeal seeks to establish his right to prosecute a suit for personal injuries against the administrator and the personal representative of the estate of William Floyd Turnage, deceased. The trial court dismissed Adams’ complaint on the ground that prior litigation had adjudicated the same issues of negligence. In that litigation the appellees here were the plaintiffs and the only defendant was Adams’ employer. Adams was a witness and that trial resulted in a finding that Adams’ negligent operation of his employer’s truck caused the collision. Is Adams estopped by the final judgment in the prior suit from pursuing his personal injury case?

In February 1963, Jack Franklin Adams, an employee of East Texas Motor Freight Lines, Inc., was involved in a collision with a passenger car driven by Robert Martin Turnage. Adams claims to have received serious injuries. Turnage was fatally injured. The Turn-age Estate filed suit against ETMF in a federal district court in Tennessee. The suit was grounded solely on the alleged negligence of Adams, the driver for ETMF. Adams was not a party to that action. He testified as a witness on behalf of his employer. Judgment was awarded the Turnage Estate.

Jack Franklin Adams subsequently filed his own suit for personal injuries against the Turnage Estate. The suit was filed in St. Francis County, Arkansas, the situs of the collision. The trial court sustained a motion to dismiss Adams’ suit on the ground that Adams’ negligence had been adjudicated in the federal court proceedings in Tennessee. Adams appeals from that order of dismissal.

Adams contends that his cause of action is his own, that it is in no manner derived from his employer, and that he is entitled to his day in court. The Turnage Estate does' not rely on res judicata in its strict sense because the parties are not the same in the two cases. However, appellees contend ETMF and Adams were so connected in interest in the Tennessee litigation that the Turnage Estate may avail itself of the Tennessee judgment as res judicata in the St. Francis County suit. The Estate points to the employer-employee relationship and to the fact that ETMF’s liability was predicated solely on a finding of negligence against Adams. This defense is often referred to as “estoppel by judgment.”

We have not been cited an Arkansas case in which the precise facts have been before this court. However, there have been so many cases in other jurisdictions that the law is well settled. A case precisely in point comes from Massachusetts and has been cited with approval by other forums. Pesce v. Brecher, 19 N. E. 2d 36 (1939). Pesce sued Brecher for personal injuries. In a former action, Pesce’s employer had sued Brecher for property damage caused by the same accident. Pesce, the driver, testified in that case. Judgment was rendered against Pesce’s employer. In the second action, Pesce v. Brecher, the defendant pleaded the first judgment in estoppel. In rejecting the motion to dismiss, the court said:

“The former adjudication was not a defense to this action. It is elementary and fundamental that every individual is entitled to his own day in court m which to assert his own rights or to defend against their infringement. The present plaintiff was not a party to the former action. He is not in privity with any party in the sense that his rights are derived from one who was a party. His cause of action is, and always has been, his own. It is in no way derived from his employer, who was a party. The relation of employer and employee, in and of itself, does not confer upon the employer any power to represent or to bind the employee in litigation. That the plaintiff testified as a witness in the former action is immaterial. He had no control over the conduct of the trial. He could not cross-examine opposing witnesses. The essential elements of an es-toppel by judgment are lacking.”

Of the same accord are such cases and authorities as Makariw v. Rinard, 336 F. 2d 333 (1964); Dave Rice v. Ringsby Truck Lines et al, 302 F. 2d 550 (1962); Brown v. Wheeling & L. E. R. Co., 65 N. E. 2d 912 (1945); Restatement, Judgments, § 96 (1) (2); 1 Freeman on Judgments (5th. Ed. 1925) § 469 at p. 1029.

We hold that the Tennessee adjudication does not preclude Adams, from maintaining his St. Francis County action.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Robert CABLETON v. STATE of Arkansas
    5302
    420 S. W. 2d 534
    Opinion Delivered October 30, 1967
    [Rehearing denied December 4, 1967].

      John W. Walker, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This appeal is taken from the action of the trial court affirming judgments of the Mayor’s Court of the City of Gould in two cases and the Justice of the Peace Court of Gould Township in Lincoln County in three cases. All charges were misdemeanors. The first conviction was had in the Mayor’s Court on December 18, 1965 upon a charge of disturbing the peace and obstructing justice. In that case a fine of $100.00 and costs of $10.50 were assessed against appellant. All of the remaining convictions were on October 4, 1966, with total fines imposed amounting to $421.50. The costs assessed totaled $43.00. Jail sentences wrere for a total of nine months. The charges were public drunkenness, resisting arrest, assaulting an officer and disturbing the peace. Timely appeals were taken. Judgments affirming were entered in the Lincoln Circuit Court on the 13th day of February 1967. Bach recites that affirmance of the original judgment was entered when appellant failed to appear after having been called three times at the bar of the court by the sheriff. Motions to vacate these judgments and for new trial were timely filed, heard and denied.

Appellant seeks reversal on the basis that in the Mayor’s and Justice of the Peace Courts he was not advised of his right to counsel and that no offer was made to appoint counsel if he were unable to afford his own lawyer. The gist of appellant’s argument appears to be that the failure to appoint counsel for an indigent charged with a misdemeanor on which a jail sentence may be imposed is a violation of his rights under the Sixth and Fourteenth Amendments to the Constitution of the United States. The records in the original trial courts are silent on the subjects of indigency, advice as to right to counsel and request for representation by an attorney. The cases heard there in October were continued from September 15, 1966, however, at the request of appellant. On the margin of the docket sheet in the case heard December 18, 1965, the names of John Walker and Deactor [Delector] Tiller are listed at attorneys for appellant. No statement as to their appearance or nonappearance is recited in the judgment.

Appellant’s contention is based largely on the holding in Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799. This court has held that failure to appoint counsel under similar circumstances did not violate the constitutional rights of one charged with a misdemeanor. Winters v. Beck, 239 Ark. 1151, 397 S. W. 2d 364 (cert. denied 385 U. S. 907, 87 S. Ct. 207, 17 L. Ed 2d 137). It was pointed out in that opinion that the Wainwright case dealt with a felony charge where the defendant had been sentenced to five years in the penitentiary. Appellant urges, however, that the felony-misdemeanor distinction is illogical and should be abandoned, relying on cases from other jurisdictions, at least two of which, McDonald v. Moore, 353 F. 2d 106 (5th Cir.) and Harvey v. Mississippi, 340 F. 2d 263 (5th Cir.), were decided before the Supreme Court denied certiorari in Winters v. Beck and were obviously considered by that court as they are cited in the dissenting opinion of Mr. Justice Stewart. Not only was the Supreme Court fully aware of the decision of the Fifth Circuit in the McDonald case, but the Circuit Court, even while rejecting the “felony-misdemeanor” rule, the “serious offense” rule and the “peculiar, particular or special circumstance” rule and refusing to adopt a “petty offense” rule, recognized that the Wainwright case did not require the appointment of counsel in all cases, for it said:

“ * * * It seems unlikely that a person in a municipal court charged with being drunk and disorderly, would be entitled to the services of an attorney at the expense of the state or the municipality. Still less likely is it that a person given a ticket for a traffic violation would have the right to counsel at the expense of the state. If the Constitution requires that counsel be provided in such cases it would seem that in many urban areas there would be a requirement for more lawyers than could be made available. Even with the assistance of law students, whose services may be requested under some of the Criminal Justice plans, the demand might come near exceeding the supply.”

It should be noted that the Harvey case is relied on as precedent in the McDonald case.

In considering Gideon v. Wainwright, there are factors to be weighed other than the fact pointed out in the Winters case that it involved a felony conviction. That decision did not declare that the Fourteenth Amendment made the guarantees of the Sixth obligatory, as such, upon the states. Its rationale was that those pledges and guarantees contained in the Bill of Rights of the Federal Constitution, which are implicit in the concept of ordered liberty, are fundmental principles of liberty and justice which are the bases of our political and civil institutions and are fundamental and essential to a fair trial, are made obligatory upon the states by the Fourteenth Amendment. In arriving at its conclusion, the court relied upon Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. Ed. 158, 84 A.L.R. 527, as well as Betts v. Brady, 316 U. S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595 (the result of which it overruled) and Palko v. Connecticut, 302 U. S. 319, 58 S. Ct. 149, 82 L. Ed. 288, (in which the double jeopardy provision of the Fifth Amendment was held not to be obligatory upon the states). Thus, the statement with reference to right to counsel “[i]n all criminal prosecutions” is not obligatory upon the states, having never been considered fundamental to a fair trial or basic concepts of liberty and justice in any cases other than felonies. The United States Supreme Court has long recognized that a valid distinction can be made between serious and petty offenses in application of Sixth Amendment guarantees. District of Columbia v. Clawans, 300 U. S. 617, 57 S. Ct. 660, 81 L. Ed. 843.

Appellant also relies on cases such as People v. Witenski, 15 N. Y. 2d 392, 259 N. Y. S. 2d 413, 207 N. E. 2d 358. This decision was by a court divided four to three. It can be distinguished. In New York there was a statute (Code of Criminal Procedure § 699) requiring a magistrate to immediately inform a defendant of his right to aid of counsel at every stage of the proceedings and before any further proceeding is had. The court, said that it had previously decided there was so little real difference in that statute and Code of Criminal Procedure § 308, requiring that when a defendant appears upon arraignment on indictment, he must be asked if he desires the aid of counsel and that the court must assign counsel if he does. Of course, our statutes only require the appointment of counsel in felony cases. Ark. Stat. Ann. § 43-1203 (Repl. 1964). Subsequently, the New York Court of Appeals recognized that the Wainwright case did not extend the right to assigned counsel to all crimes, in an opinion holding that these constitutional requirements were not applicable where a defendant was charged with a traffic law violation. People v. Letterio, 16 N. Y. 2d 307, 266 N. Y. S. 2d 368, 213 N. E. 2d 670.

Another case cited by appellant is People v. Mallory, 378 Mich. 538, 147 N. W. 2d 66. An examination of that decision leads to the conclusion that it is based upon peculiar language of the Michigan Constitution, the rule making power of that court, and statutes of that state. The opinion recognizes that the decisions of the United States Supreme Court may not be controlling of the question of right to counsel in misdemeanor cases.

We choose not to anticipate that the Supreme Court of the United States will extend the rule of the Wainwright case to misdemeanor cases. We rather choose to hold that the public policy of this state on the right to appointed counsel is expressed in our statutory law. While the statute requiring appointment of counsel in felony cases was adopted long before the decision in Gideon v. Wainwright, supra, we take judicial notice that the General Assembly of our state has met in regular session twice subsequently. We cannot assume that, in failing to extend our law to require appointment of counsel in cases other than felonies, they were ignorant of that decision. Any change in the law of Arkansas, after certiorari was denied in the Winters case, should either come through legislative enactment or by an express decision of the United States Supreme Court.

Our decision in the Winters case does not stand alone. It has been followed or cited with approval in other jurisdictions. See, e. g., City of Toledo v. Frazier, 10 Ohio App. 2d 51, 226 N. E. 2d 777; State v. Sherron, 268 N. C. 694, 151 S. E. 2d 599; City of New Orleans v. Cook, 249 La. 820, 191 So. 2d 634.

In Florida, the arena in which at least five of the “constitutional right to counsel” cases have been originally contested, the Supreme Court has also held that the Wainwright ease did not apply to misdemeanors. They based their holding that an indigent defendant accused of a misdemeanor was not entitled to appointed counsel on the action of their legislature providing for a public defender for indigents in non-capital felony eases. This, they said, constituted a declaration of the state’s public policy. Fish v. State, 159 So. 2d 866 (Fla.); Watkins v. Morris, 179 So. 2d 348 (Fla.). The Ohio court has also found a declaration of public policy in its statutes. City of Toledo v. Frazier, supra. It is suggested by the Supreme Court of North Carolina that the United States Supreme Court has not put a responsibility upon a state in this field any greater than that imposed by its own statutes. State v. Sherron, 268 N. C. 694, 151 S. E. 2d 599.

Practical considerations must enter into these policy determinations. As stated by the District Court of the Eastern District of North Carolina, it must be recognized that the right to counsel is not an end in itself, but a means for achieving the most perfect justice possible in a given situation, which requires the striking of a balance between an ideal situation and what is humanly possible to achieve. Creighton v. State of North Carolina, 257 F. Supp. 806. Practical consideration of the impact of application of abstract constitutional principles on the administration of justice is not without precedent. Johnson v. State of New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882; Linkletter v. Walker, 381 U. S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601; Tehan v. United States, ex rel Shott, 382 U. S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453; State v. Zucconi, 93 N. J. Super. 380, 226 A. 2d 16. Most misdemeanor cases are tried in Arkansas in municipal courts, justice of the peace courts, police courts and mayor’s courts. According tp the Second Annual Report of the Judicial Department of Arkansas, the 61 municipal courts had 108,040 criminal charges and 201,867 traffic charges filed in the year 1966. According to the same report, there were 2,267 justices of the peace in Arkansas in 1967, and there is no reason to believe that the number was any less in 1966. We have no record of the number of police and mayor’s courts in Arkansas of which we can take judicial notice, nor of the number of cases brought before them. We recognize that some of the criminal charges before the municipal courts are felony cases in which-the judges sit only as committing magistrates.

The practical impossibility of implementing a system such as appellant urges is obvious when we consider that there are more justices of the peace in Arkansas than there are resident practicing lawyers and that there are counties in which there are no practicing lawyers. The impact of such a rule would seriously impair the administration of justice in Arkansas and impose an intolerable burden upon the legal profession.

It has also been held that constitutional rights are not invaded in misdemeanor cases in which counsel is not appointed for indigent defendants, even though otherwise required, where the defendant has a right to trial de novo on appeal where he is represented by counsel. Doss v. State of North Carolina, 252 F. Supp. 298. In the case at bar, appellant was provided that right. Ark. Stat. Ann. § 26-1308 (Repl. 1962); § 19-1204 (Repl. 1956); § 44-509 (Repl. 1964). Appellant took appropriate steps to avail himself of this right and was represented by counsel. By his failure to make timely appearance in the circuit court, however, he forfeited this right. The cases stood for trial at any time after the transcripts were filed in the circuit court. Ark. Stat. Ann. § 44-506 (Repl. 1964). Upon his failure to appear when the case was set for trial, the circuit court was authorized to affirm in the absence of good cause shown. Ark. Stat. Ann. § 44-507 (Repl. 1964). Appellant does not really question this, but contends that his constitutional rights under the Sixth and Fourteenth Amendments were also violated because he was not granted a continuance. At any rate, if appellant did appear in court on the date set (as advised to do by his attorney) and was only a few minutes late, as he contends, there is nothing in the record to indicate that he made his presence known to the trial court.

Appellant’s request for a continuance was made to the prosecuting attorney, not the court. This being so, appellant has no standing to complain. Be that as it may, the excuse given for the requested continuance is not ground for reversal. The granting or refusal of a continuance is within the sound discretion of the trial court and reversal is not authorized unless the trial court abused its discretion. Jackson v. State, 54 Ark. 243, 15 S. W. 607; Perez v. State, 236 Ark. 921, 370 S. W. 2d 613. Appellant says the continuance should have been granted because his attorney had what the latter considered a more important case set for trial in Camden on the same day. It has been held that the failure to grant a continuance on this account is not an abuse of discretion. The following language of Brickey v. State, 148 Ark. 595, 231 S. W. 549, is applicable here:

“* * * Counsel who are employed to represent clients having cases pending in courts must so arrange their business as to be able to appear to represent their clients when those cases are called for trial. The business of the courts cannot be controlled, interrupted, or made to conform to the business interests of attorneys. The fact that an attorney may have cases for clients pending in different courts whose terms convene at the same time, and which condition may render it impossible for the attorney to be in attendance at one of the courts, is no imperative reason for the continuance of the causes in which he is employed in the court which he does not attend. These are matters addressed to the sound discretion of the presiding judge of the court, who must conduct the public business entrusted to him in a manner most conducive to the interests of the public whom he serves. It is never an abuse of discretion for the court to refuse to grant a continuance in a cause on account of the absence .of employed counsel, unless such counsel is absent by reason of sickness or some other unavoidable casualty. The absence of an attorney from a court where causes are pending in which he is employed as counsel because of causes pending in other courts in which he is also employed as counsel is not an unavoidable casualty.”

Appellant’s remaining point for reversal is that he was denied due process of law in violation of Article II, Section 8 of the Arkansas Constitution and the Fourteenth Amendment to the United States Constitution, contending that the Mayor of Gould, being interested in the maintenance of the city treasury into which fines were paid, could not give him a fair trial. As a further basis he contends that the Mayor had an interest in avoiding demonstrations which might tend to excite the inhabitants of the city o r disrupt the public peace. Nothing in the record shows that any such demonstration was involved, contemplated or feared by anyone. While we find no merit in either contention, this question was first raised on appeal, not having been incorporated into the motion for new trial. This question, then, cannot properly be considered on this appeal. Randall v. State, 239 Ark. 312, 389 S. W. 2d 229; Clayton v. State, 191 Ark. 1070, 89 S. W. 2d 732; Fain v. State, 189 Ark. 474, 74 S. W. 2d 248. Here again, however, the alleged prejudice would have been unimportant if appellant had availed himself of a trial de novo.

The judgments are affirmed.

      Announced in cases such as State v. Anderson, 96 Ariz. 123, 392 P. 2d 784.

      This was the rule announced in Betts v. Brady, 316 U. S. 455, 62 S. Ct. 1252, 86 L. Ed. 1595.

      This did not include 108,094 non-moving traffic charges in the City of Little Rock. In some of the courts, traffic offenses are included in the criminal cases rather than being listed separately.

      All have jurisdiction of misdemeanors except those in townships where municipal courts sit. Ark. Stat. Ann. § 22-709 (Repl. 1962) and §§ 43-1405, 43-1408 (Repl. 1964); Logan v. Harris, 213 Ark. 37, 210 S. W. 2d 301 (1948).

      This is indicated by records in the office of the clerk of this court of current licenses to practice.


author: J. Fred Jones, Justice.

text:
    Mrs. Fred PLANQUE et al v. CITY OF EUREKA SPRINGS, ARKANSAS
    5-4299
    419 S. W. 2d 788
    Opinion delivered October 30, 1967

      W. D. Anglin, for appellants.

      Oliver L. Adams Jr. and James E. Coates, for appellee.
   J. Fred Jones, Justice.

This appeal is from a judgment of the Carroll County Circuit Court, Western District, upholding the annexation of certain territory consisting of some 715 acres, known as Stadium Addition, by the City of Eureka Springs. The annexation was carried out under the provisions of Ark. Stat. Ann. § 19-307 (Repl. 1956), which is Act Mar. 9, 1875, No. 1 § 84, p. 1. The city council of Eureka Springs submitted the question of annexation to the qualified electors, a majority voted in favor of annexation and a petition was presented to the county court as provided in § 19-307. Eight individuals and three married, couples, who owned property within the territory involved, and who are the appellants here, opposed the petition in county court and after hearing thereon, the petition for annexation was granted and an order of annexation was entered by the county judge. The remonstrants appealed to the circuit court where a jury was waived and the case was tried before the circuit judge sitting as a jury. After hearing the evidence offered by the remonstrants, and after finding that a majority of the votes cast at the election was in favor of annexation and that the proposed territory was contiguous to the existing boundary of the City of Eureka Springs, the circuit court found “that the Remonstrants have -failed to go forward with the burden of proof to show the invalidity of the order of the Carroll County Court, ” * * * and the petition of the remonstrants objecting to the annexation order of the Carroll County Court was dismissed and the annexation was approved by the cireuit court.

On appeal to this court appellants designate the following point for reversal:

‘ ‘ The Court erred in directing a verdict for the petitioner and appellee, City of Eureka Springs, Arkansas, upon the grounds that the remonstrants and appellants failed to go forward with the burden of proof to show the invalidity of the order of the Carroll County Court, after the remonstrants and appellants had presented their proof of same.”

At the outset we consider appellants’ reference to “directing a verdict” to mean “rendering judgment” since a jury was waived in this case, and we consider the trial court’s finding that the appellants failed to “go forward with the burden of proof” to mean “sustain the burden of proof,” since appellants apparently did accept their burden of proof and did go forward in producing the testimony of three witnesses in support of their contention that the order of annexation should not have been made following the hearing in county court.

There have been few material legislative changes in our annexation laws since first enacted in 1875, and our case law has not deviated far from the guide lines laid down in the landmark case of Vestal v. Little Rock, 54 Ark. 321, 15 S. W. 891, decided by this court in 1891. In the Vestal case we said:

“City limits may reasonably and properly be extended so as to take in contiguous lands, (1) when they are platted and held for sale or use as town lots, (2) whether platted or not, if they are held to be brought on the market and sold as town property when they reach a value corresponding with the views of the owner, (3) when they furnish the abode for a densely-settled community, or represent the actual growth of the town beyond its legal boundary, (4) when they are needed for any. proper town purpose, as for the extension of its streets, or sewer, gas or water system, or to supply places for the abode or business of its residents, or for the extension of needed police regulation, and (5) when they are valuable by reason of their adaptability for prospective town uses; but the mere fact that their value is enhanced by reason of their nearness to the corporation, would not give ground for their annexation, if it did not appear that sucih value was enhanced on account of their adaptability to town use.”

Neither have we had occasion to deviate far from the additional principle announced in the Vestal case that:

“. . . city limits should not be so extended as to take in contiguous lands, (1) when they are used only for purposes of agriculture or horticulture, and are valuable on account of such use, (2) when they are vacant and do not derive special value from their adaptability for city uses.”

Following a favorable vote for annexation in a properly called and conducted election, the county court is bound to grant the petition praying for the annexation unless a complaint is filed against it, and the burden rests on those filing such complaint to show why the petition for annexation should not be granted.

In the early case of Dodson v. Mayor and Town Council, Fort Smith, 33 Ark. 508, this court said:

“.By force of the statute the annexation follows the vote of the city, and the proper formal steps prescribed to be taken in the County Court, unless there be a complaint filed against it and sustained. The vote of the town makes a prima facie case as to the propriety of the annexation. The onus of showing cause against it sufficient to satisfy the judgment of the County Judge, was upon the remonstrants.”

On appeal to the circuit court from an order of the county court in annexation cases, the circuit court tries the case de novo hut the burden of proof in showing that the territory should not be annexed still rests on those opposing the annexation where a majority of the electors of the municipality have voted for annexation. Marsh v. City of El Dorado, 217 Ark. 838, 233 S. W. 2d 536.

In the case of Garner v. Benson, 224 Ark. 215, 272 S. W. 2d 442, this court said:

“We have consistently held that the findings of the Circuit Court have the same weight and effect as the verdict of a jury and therefore we must affirm the Court’s judgment if we find any substantial evidence to support it. We are not called upon to decide where the preponderance of the evidence lies. It is further well established that the vote of the town or city makes a prima facie case as to the propriety of the annexation. The burden of proof of showing cause against annexation rests upon those opposing it.”

In the case of Mann v. City of Hot Springs, 234 Ark. 9, 350 S. W. 2d 317, one of the rules applicable to a case like this was stated as follows:

‘ ‘ The vote of the electors of the City of Hot Springs made a prima facie case for annexation, and the burden was on the appellants, as the objectors, to defeat the prima facie case.”

The parties stipulated that the plat presented at the trial in circuit court represented the territory involved and that a majority of the votes cast in the election on the question was in favor of annexation. The trial court found from the plat before it that the 715 acres, more or less, in Stadium Addition was contiguous to the City of Eureka Springs and that a majority of the vptes cast in the election was in favor of annexing this territory to the City of Eureka Springs.

So we now come to the only question actually before us on this appeal. Did the trial court err in holding that the appellants failed to sustain their burden of proof that the proposed territory should not be annexed?

The record does not reveal the number of property owners or people residing in the territory involved, and this is immaterial except possibly to show the density of population, but only three owners of approximately 33 acres of the area involved testified at the' trial in circuit court. No professional or expert testimony was offered and none of the thirteen appellants testified except Burt Hull, V. E. Blanchard and George O’Connor.

Mr. Hull testified that he owns 21 acres, more or less, and that his land has small brush on it; that a ridge runs down south of his house where he raises good garden stuff; that it had watermelons on it when he bought it, and had a big potato patch the next year; that he has some pasture on it now where he keeps a horse and sometimes a few cows; that the land is agricultural in nature to a certain extent; that there are seven or eight houses within approximately one mile between his land and the city limits.

Mr. Hull’s primary objection is to the building code and the revenue that would be derived from his land and spent by the city as it has been spending its revenues. He thinks the city has grown beyond its present boundary lines.

Mr. O’Connor owns about five acres bordering the present city limits. He has observed livestock in the entire area, but not in great numbers. This witness has city water to his place, but no streets. He put in the water line and pays double the regular water rate. Mr. O’Connor has some pasture, a junk yard, a filling station and his home on his land. He has not used his pasture in two years. Two highways wind through the area and streets lead off going into town.

Mr. Blanchard owns about seven acres about one-half mile from the present city limits. The gist of his testimony is that he purchased the property for a retirement home and keeps farming equipment on it. He understands that the city wants to annex the property for an industrial site and he doesn’t believe there is enough labor available to run an industry. He testified that the city has grown beyond its boundaries but doesn’t need his property.

The entire evidence offered by the appellants consisted of the testimony of these three appellants, and the substance of their testimony was directed primarily to the personal inconveniences, lack of benefits and higher taxes they anticipate from annexation.

Mr. O’Connor testified:

“Another of my objections to being annexed is that the people out there are people who have paid their bills and paid them on time and they don’t give rubber checks. Neither is there any of them out there to my knowledge that have been picked up for drunkenness. So, I don’t have any particular desire to break.into town.”

This court has held that the desires of the residents in the territory to be annexed are not a determinative point. Mann v. City of Hot Springs, supra. In the Mann case attention is also directed to an annotation in 62 C.J.S. 129 “Municipal Corporations” § 44, with cases there holding that “Neither is it a valid excuse for refusing annexation of territory that the taxes in such territory will be increased.”

The rule announced in the case of Dodson v. Mayor and Town Council, Fort Smith, supra, as applicable to the case here. By force of the statute the annexation followed the vote of the City of Eureka Springs. The vote of the City made a prima facie case as to the propriety of the annexation, and the burden of producing sufficient competent evidence to overcome the prima facie case as to the propriety of the annexation was on the appellants, and we conclude that the trial court did not err in holding that appellants failed in their discharge of that burden. The judgment of the trial court is affirmed.

Affirmed.


text:
    J. T. SUMMERS et al v. Don HOOK et al
    5-4321
    419 S. W. 2d 810
    Opinion delivered October 30, 1967

      Howell, Price & Worsham, for appellants.

      Henry Spitzberg, W. S. Miller and DeMatt Henderson, for appellees.
   J. Fred Jones, Justice.

This is an appeal from a decree of the Pulaski County Chancery Court, Third Division, dismissing a complaint filed by the appellants to void a resolution adopted by the Arkansas Baptist State Convention. Arkansas Baptist State Convention and Arkansas Baptist Medical Center, formerly Baptist State Hospital, are separate corporate entities. It was the intent of the resolution complained of to release from control of the Convention the trusteeship of the Arkansas Baptist Medical Center, and to sever all connections between the Convention and the Center. The complaint alleges that the resolution violated Article VII of the Constitution of the Convention and was void. The complainants also sought to enjoin the officers of both corporations from acting under the resolution.

The chancellor, in the trial of the case, was called on to interpret Article VTI of the Constitution of the Convention, and to determine whether or not the resolution was legally effective under the Constitution. We try chancery cases de novo from the record on appeal, but affirm the chancellor’s findings if not clearly against the preponderance of the evidence and we find no abuse of the chancellor’s discretion.

The plaintiffs in the chancery action and appellants here, are pastors of Baptist Churches and are members of, or messengers to, the Arkansas Baptist State Convention. Some of the defendants in the chancery action, and appellees here, are officers and directors of the Arkansas Baptist State Convention, and some are officers and directors of the Arkansas Baptist Medical Center.

Article VII of the Convention’s. Constitution provides as follows:

“The Convention shall elect trustees to manage and to operate its colleges, hospitals, orphanages and any other institutions it may possess, as follows: Section 1. Ouachita Baptist University, 24; Arkansas'Baptist Medical Center, 18; Arkansas Baptist Home for Children, 18; Baptist Memorial Hospital, 9.”

On November 7, 1966, the Convention, in regular business session, adopted by majority vote the resolution complained of, containing the following provision:

“I That Baptist State Convention of Arkansas hereby does declare that Arkansas Baptist Medical Center henceforth is, and forever shall be, a body corporate independent of this Convention, solely under the control of its Board of Trustees and membership, fully discharged of responsibility to or control of this Convention.” .

Appellants contend that the chancellor erred in dismissing their complaint, and on appeal to this court rely on one point as follows:

“The resolution passed by the Arkansas Baptist State Convention on November 7, 1966, which would terminate the Convention’s right to direct the trusteeship of the Arkansas Baptist Medical Center is void in that it conflicts with Article VII of the Constitution of the Arkansas Baptist State Convention, said Article VII not being amended by the resolution.”

Appellants earnestly contended in the trial court, and still contend here, that the resolution complained of was in violation of Article VII of the Convention, and that the resolution could not be legally effective without amending the Constitution; that the resolution, as adopted, did in effect attempt to amend the Constitution; that it was adopted by a mere majority vote and that under Article X of the Constitution it can only be amended by “two-thirds of the members voting concurring in the measure.”

On the other hand the appellees contend that Article VII only applies to hospitals and other institutions actually owned and operated by the Convention; that Arkansas Baptist Medical Center is a separate corporate entity owning its own property and conducting its own corporate affairs, completely divorced from any legal right of control or interference in its affairs by the Convention; that the resolution was not in violation of Article VII, did not require an amendment to the Constitution to be binding, and the vote by. which it was adopted only required a majority vote as any other business resolution, and not a two-thirds vote as required to amend the Constitution.

It is true that Section I of Article VII of the Constitution of the Convention lists Arkansas Baptist Medical Center among its institutions possessed by it. As we see it, the validity of the vote by which the resolution was adopted turns on the fact question of whether or not the Arkansas Baptist Medical Center was the Convention’s hospital or institution possessed by the Convention. In arriving at an answer to this question, it is necessary to trace some of the history of the hospital as related to the Convention.

By a resolution adopted in 1919, the Convention resolved to immediately undertake the launching and putting into operation a modern hospital. This resolution provided for the appointment of a seven member Hospital Commission to carry out the will of the Convention in launching and putting into operation the hospital, and provided that the Hospital Commission:

. . be empowered with authority to take out charter, and take all necessary steps incident to establishing this hospital work; and that the State Board be instructed to cooperate with the Special Hospital Commission in financing and otherwise carrying out the will of the Convention. ’ ’ (Emphasis ours.)

The following year, in 1920, another resolution was adopted by the Convention under which the membership on the Hospital Commission was raised from seven to nine members, and this resolution provided:

“. . . all nine of such members shall be elected at this session; that three of such members shall serve for one year, three for two years, and three for three years. ‘That five members of said Commission shall be from Little Rock, Arkansas, and at least one shall be appointed from each locality where the Commission may have a hospital.’ ”

In January 1921, nine individuals executed articles of incorporation for a corporation named “Baptist State Hospital,” the fifth, sixth and seventh articles being as follows:

“FIFTH — The affairs and business of the corporation shall be conducted and controlled by a Commission or Board of Directors consisting of nine members. Said Commission or Board of Directors shall elect one of its members as President, and one of its members as Vice-President, and shall also elect from its members a secretary and. treasurer.
“SIXTH — The corporators shall be and constitute the Commission or Board of Directors, and shall serve during their term of office for -which they were appointed by the Arkansas Baptist State Convention.
“SEVENTH — The. Commission or Board of Directors are empowered to ordain and establish all bylaws and regulations necessary to the management and business of said corporation, and alter and repeal the same at pleasure.” (Emphasis ours.)

In 1937, under authority of resolutions adopted by the Convention and in consideration of the payment by the hospital of $150,000.00, or so much thereof as necessary to liquidate the indebtedness of the Convention, and especially the bonded indebtedness, the Executive Board of the Convention executed and delivered to the Hospital a warranty deed transferring all of Block 4, Centennial Addition of Little Bock, to Baptist State Hospital and its successors and assigns forever. Following this transaction there is nothing further in the record, except testimony hereinafter referred to, showing any connection at all between the Baptist State Convention and the Hospital or Medical Center.

The record does show, however, that in 1948, and again in 1965, Baptist State Hospital, by resolution of its own Board of Trustees, amended its own charter and articles of association, and by appropriate court orders changed its corporate name, finally becoming “Arkansas Baptist Medical Center.”

After the execution and delivery of the deed from the Convention to the Hospital in 1937, the Hospital acquired other real estate by purchase from various individuals, taking title by deed from the various grantors to the Hospital in its own corporate name as a nonprofit corporation, and to its successors and assigns forever. There is nothing in the record to indicate that the Convention has ever owned or claimed legal title in any of the properties owned or used by the hospital since the Convention sold and transferred to the Hospital all of Block 4, Centennial Addition, in 1937. It is rather clear under the seventh article of the Hospital Articles of Incorporation, that it was intended that the Commission or Board of Directors of the Hospital Corporation was to manage and conduct the business of that corporation.

The Convention has been contributing from $75,000.00 to $100,000.00 annually to the operating expenses of the Medical Center and from the testimony at the trial before the chancellor, it would appear that the Convention has continued to name trustees for the Hospital Corporation from its inception, and has from time to time adopted resolutions authorizing the Hospital Corporation to borrow money and purchase land. Apparently this procedure was continued under the Fifth Article of the incorporation in which it was provided that “the corporators shall be and constitute the Commission or Board of Directors, and shall serve during their terms of office for which they were appointed by the Arkansas Baptist State Convention.”

The appointments of the corporators as Commissioners or a Board of Directors under this Fifth Article was made some forty-six years ago and, of course, the terms of office for which they were appointed have long since expired. The Baptist State Hospital Corporation came into existence full grown, with all the incidental rights to sue and be sued, ordain and establish its own by-laws and regulations necessary to the management of its own business, and to alter and repeal the same at pleasure. The Hospital Corporation has twice amended its own articles of incorporation.

If the Convention has continued to name directors to fill vacancies on the Hospital Board of Directors, and has exercised any control over the Hospital Corporation’s Board of Directors in the conduct of the affairs of that corporation, we are of the opinion that such control has been exercised by the Convention under a right by sufferance rather than under any legal right reserved or granted in the articles of incorporation, and that the decree of the chancellor is not against the preponderance of the evidence in this case and should be affirmed.

Affirmed.

Harris, C. J., not participating.


author: Conley Byrd, Justice.

text:
    Andrew Jackson ROWE v. STATE of Arkansas
    5303
    419 S. W. 2d 806
    Opinion delivered October 30, 1967

      Phillip D. Hout, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. General, for appellee.
   Conley Byrd, Justice.

This is a proceeding under Criminal Procedure Rule No. 1, 239 Ark. 850a. Appellant’s conviction, resulting in consecutive sentences of 21 years for robbery and 7 years for burglary, was originally affirmed by this court in 1955. See Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887 (1955). In this post-conviction procedure appellant offered no additional proof, but relied on the record previously made. For reversal of the trial court’s order refusing him any relief, he relies on the following points.

I. The petition for writ of habeas corpus should have been granted because, in the original trial, the court erroneously permitted the state to introduce evidence of appellant’s previous convictions in the state’s case in chief.

II. The petition for writ of habeas corpus should have been granted because the penitentiary commitment does not specify which of appellant’s consecutive sentences is to run first.

I

Appellant contends that we should give retroactive effect to our decision in Miller v. State, 239 Ark. 836, 394 S. W. 2d 601 (1965). In Miller, reversing our former procedure, we held that the prosecuting attorney could not, on a trial of the primary charge, inform the jury of prior convictions for purposes, of invoking the additional penalties of the habitual criminal statute, Ark. Stat. Ann. § 43-2328 (Repl. 1964). This holding has been applied retroactively to cases then in the ordinary appellate process. Russell v. State, 240 Ark. 97, 398 S. W. 2d 213 (1966); Francis v. City of Benton, 240 Ark. 738, 401 S. W. 2d 729 (1966). However, we do not feel that we should apply it retroactively to cases finally adjudicated and in which the appellate process has been completed. Other courts with the same problem have arrived at similar conclusions. Linkletter v. Walker, 381 U. S. 618 (1965); Tehan v. Shott, 382 U. S. 406 (1966).

The procedure under the habitual criminal statute is now controlled by Act 639 of 1967.

II.

We find appellant’s second point to be without merit. The commitment originally issued hy the trial court directed that appellant he “. . . delivered to the penitentiary authorities . . . and there confined at hard labor for the period of 21 years for robbery and 7 years for burglary, both sentences to run consecutively . . .” On this record we had no trouble on the original appeal in determining that the sentences were consecutive and that the 21-year sentence was to be served before the 7-year sentence. The determination of which sentence shall run first is a matter within the discretion of the trial court and we find no abuse of it in this case. Ark. Stat. Ann. §§ 43-2311-2312 (Repl. 1964).

Affirmed.


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

text:
    H. J. LEWIS et ux v. Johnny CROCKETT
    5-4276
    420 S. W. 2d 89
    Opinion delivered November 6, 1967

      James R. Howard, for appellants.

      Sam Laser, for appellee.
   Carleton Harris, Chief Justice.

The question in this case is whether the Pulaski County Circuit Court (Third Division) committed error by giving an instruction to the jury on unavoidable accident. On January 25, 1963, in Little Rock, Mrs. Bessie Lewis, appellant herein, was proceeding south on Mississippi Street, between 8:00 and 8:30 P.M., on her way home from a women’s club meeting. A freezing rain had begun to fall, and the streets were becoming slick. When, according to her testimony, she reached the crest of a steep hill just north of the intersection of Mississippi and Gable, she stopped to try to determine whether the hill could be safely negotiated, and after watching other cars drive slowly down the hill without incident, proceeded to do likewise. After traveling approximately 100 yards, she was struck from the rear by an automobile driven by Johnny Crockett, appellee herein. Subsequently, appellant instituted suit, alleging personal injuries. On trial, the jury returned a verdict for Mr. Crockett, and from the judgment entered in accordance with the verdict, Mrs. Lewis brings this appeal. For reversal, only one point is relied upon, vis., the lower court erred in giving appellee’s requested instruction No. 1 (unavoidable accident) over the general and specific objections of the appellant.

Mrs. Lewis testified that the Crockett car topped the hill (she could not see a set of headlights), and traveled toward her “very fast;” that she was moving slowly when the automobile struck the rear of her car. She said that appellee, when asked “why he was coming at such a terrific rate of speed,” replied, “Well, I was going over 35 miles an hour when I hit you.”

Crockett testified that his family had dinner with the family of Stanley Rushing at a restaurant, and then went' to. Rushing’s home. The latter developed a had headache, and appellee, accompanied by Rushing, went out to obtain aspirin. Appellee stated that as he started down the hill, he noticed a car stopped at the bottom; that he blinked his lights, and honked his horn, thinking that the car would move on. Crockett said that he tried to avoid hitting the Lewis automobile, but was unable to do so. He denied making the statement that he was traveling 35 miles per hour. Rushing testified that Crockett was not driving fast, though appellee admitted that the two of them engaged in a conversation with a man, who lived near the scene, relative to appellee’s speed: “The gentleman came out of the house and said he wanted to know why I was traveling fast and I told him I wasn’t and Mr. Rushing said we weren’t traveling fast. ’ ’

Over appellant’s general and specific objections, the court gave appellee’s requested instruction No. 1 (AMI 604) reading as follows:

“If you believe from the evidence that the occurrence was an unavoidable accident, that is, one which was not prosimately caused by negligence of any party in this case, then no one is entitled to recover.”

The sole question on this appeal is whether the giving of this instruction constituted reversible error. We hold that the answer is, “Yes.” The controlling case on this point is Houston v. Adams, 239 Ark. 346, 389 S. W. 2d 872. This opinion was rendered on April 26, 1965, and three subsequent cases reiterate the rule announced in Houston First, let it be said that we have held that a collision is the result of an unavoidable accident if it is not attributable to negligence on the part of either party. Houston v. Adams, supra, and cases cited therein. The discussion in Houston is apropos in the present case There we said:

“In the past decade several courts have re-examined the suitability of this instruction in negligence cases. In the leading case, Butigan v. Yellow Cab Co., 49 Cal. 2d 652, 320 P. 2d 500, 65 A.L.R. 2d 1, the Supreme Court of California overruled an earlier decision and held that the issue of unavoidable accident should not be submitted to the jury in any case (except when a definition of the term may be required by statute). From the opinion: ‘The so-called defense of inevitable accident is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury . . . Since the ordinary instructions on negligence and proximate cause sufficiently show that the plaintiff must sustain his burden of proof on these issues in order to recover, the instruction on unavoidable accident serves no useful purpose.
* * #
“ ‘The instruction is not only unnecessary, but it is also confusing. When the jurors are told that “in law we recognize what is termed an unavoidable or inevitable accident ’ ’ they may get the impression that unavoidability is an issue to be decided and that, if proved, it constitutes a separate ground of nonliability of the defendant. Thus they may be misled as to the proper manner of determining liability, that is, solely on the basis of negligence and proximate causation.’
* * * *
“We are of the opinion that in a typical negligence case the position taken by the California court is right. In such a case the plea of unavoidable accident is in fact nothing more ‘than an assertion that the defendant was not guilty of actionable negligence. That defense should be submitted to the jury in terms of negligence and proximate causation. For the court to submit also an issue of unavoidable accident is, as the Butigan opinion pointed out, to suggest that unavoidability is a separate defense, requiring separate consideration by the jury.”

Appellee argues that Houston is not controlling here, since the facts are entirely dissimilar; that the instant litigation is controlled by Industrial Farm Home Gas Company v. McDonald, 234 Ark. 744, 355 S. W. 2d 174. The latter case was decided in March, 1962. The only similarity in the case before us and Industrial Farm is that the roadway was slick with ice, but -other facts are entirely different. In Industrial Farm, both operators were admittedly driving slowly, and were only about 25 feet apart when they observed each other. Neither could have observed the other earlier. More than that, the testimony of both drivers was to the effect that the accident was unavoidable. Here, as already indicated by the recital of the facts, this situation does not exist. There is a very definite contention on the part of appellant that appellee was negligent, and the mere fact that a street or road is slick, does not, within itself, raise the issue of unavoidable accident. 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 he determined to he liable, a jury must find that he was negligent, and that such negligence was a proximate cause of the alleged injuries complained of.

Perhaps it should again he 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 Ms 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.

However, appellee contends, even if the instruction constituted error, it was harmless error. Appellee says:

“When all the instructions are considered together, including those set out above, it would seem most unlikely that the jury would believe that unavoidable accident, as innocuously defined in AMI 604, presented a separate issue in addition to negligence and proximate causation. ’ ’

This could be true, but, as pointed out in Oklahoma Tire and Supply v. Bass, supra, we do not know how the jury reached its verdict. As in that case, the verdict was general, and the jury might well have taken the unavoidable accident instruction as the basis of its finding.

In line with the cases cited, the judgment is reversed, and the cause remanded to the Pulaski County Circuit Court.

Fogleman, J., dissents.

Jones, J., not participating.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. Even if the instruction given were erroneous, I cannot see how it could possibly have been prejudicial. Appellee pleaded unavoidable accident as a defense. Each party alleged that the other was negligent in the operation of his automobile under the Mghway conditions. It is possible that the jury might have found that neither was guilty of negligence under the circumstances. If the jury could so find, then this was an unavoidable accident as defined by tbe instruction. Tbe instruction is a correct statement of law and under these circumstances was not abstract. Thus, I cannot see where it did any harm.

      Both Mr. and Mrs. Lewis are appellants, but for convenience, we use the singular.

        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.


author: George Rose Smith, Justice.

text:
    Max MEHLBURGER et ux v. Charles W. NORWOOD et al
    5-4244
    420 S. W. 2d 81
    Opinion delivered November 6, 1967

      Boyce R. Love, for appellants.

      Christopher Mercer Jr. and John P. Gill and Isaac A. Scott, for appellees.
   George Rose Smith, Justice.

This litigation began as a suit brought by the Mehlburgers to enjoin their downstream neighbor, Charles W. Norwood, from cutting timber upon .a 100-acre tract of riparian land that was concededly formed by the Arkansas River as an accretion. Norwood, and later on his downstream neighbor, McAninch, contested the Mehlburgers’ assertion of exclusive ownership of the disputed tract, their contention being that the tract in controversy came into existence as an accretion to all three riparian ownerships. The trial court upheld the defendants’ position and divided the accretion among the three sets of litigants in accordance with the rules governing the apportionment of such lands. As we view the case, the basic question for the chancellor was a narrow issue of fact. We affirm his decision.

The record is voluminous, but we may avoid a wealth of needless detail and put the fundamental issue in focus by comparing the shoreline as it existed immediately after the disastrous Arkansas River flood of 1927 with the shoreline as it existed when this suit was filed in 1963.

The 1927 deluge swept away a substantial amount of soil and left on the west bank of the Arkansas River as riparian land, the tracts later acquired by the Mehl-burgers, the Norwoods, and the McAninches. The Mehl-burger tract was upstream, to the north, the Norwood tract was in the middle, and the McAninch tract was downstream, to the south. The boundary between the Mehlburger tract and the Norwood tract was the Mau-melle River (or Creek), which emptied into the Arkansas at that point. All three tracts, as we have indicated, were bounded on the east by the Arkansas River.

In 1963 (and for some years earlier) the Mehlburger tract was the only one of the three that still touched the Arkansas River. A long narrow peninsula — the land now in dispute — had formed by accretion and extended downstream from the Mehlburger tract for a distance of a mile or more along the Arkansas River. That peninsula was separated from the Norwood and Mc-Aninch lands by the Maumelle River, which now ran southward in front of the Norwood-McAninch tracts and emptied into the Arkansas at a point far downstream from what had been its mouth in 1927.

The pivotal issue below was how that change in the shoreline, and in the channel of the Maumelle, came about. The Mehlburgers contend that the peninsula gradually formed as an accretion attached only to their tract and extended slowly southward, forcing the channel of the Maumelle to bend to its right so that that stream continuously separated the growing peninsula from, the Norwood-McAninch properties.

The appellees contend, and the chancellor found, that the accretion began to form against the appellees’ land on the mainland, south of the mouth of the Mau-melle as it existed in 1927. After 1940 the Maumelle changed its course, not gradually but abruptly, cutting through the accretion so that accreted lands already attached to the Norwood-McAninch tracts were left on the east side of the Maumelle. If the appellees’ version of the facts is correct they are entitled to prevail under our decisions in Adkisson v. Starr, 222 Ark. 331, 260 S. W. 2d 956 (1953), and Dowdle v. Wheeler, 76 Ark. 529, 89 S. W. 1002, 113 Am. St. Rep. 106 (1905). (We are not persuaded by the appellants ’ argument that the Adkisson and Dowdle eases may be distinguished on the ground that the Maumelle is a navigable stream, as the trial court found it to be. In our opinion the navigability of the Maumelle is immaterial.)

No useful result would be attained if we should try to recount all the testimony bearing upon what is basically an issue of fact. The conflicts in the evidence cannot be reconciled. We may say, however, that in weighing the proof we are especially impressed by the physical facts reflected by aerial photographs taken by the U. S. Corps of Engineers. The earliest picture, made in 1940, shows the Arkansas River flowing against the three rival tracts, much as it did after the 1927 flood. But a later photograph, taken in 1948, reveals unmistakably that a sandbar (which was the embryonic stage of the accretion now in controversy) had built up in front of the appellees’ land and that the Maumelle River crossed the middle of that sandbar at right angles to the channel of the Arkansas River and emptied into that stream at a point far north of the mouth of the Maumelle as it existed in 1963. Convincing proof such as this tips the balance in favor of the chancellor’s decree.

Affirmed.

Byrd, J., disqualified.