text:
    Jim Wilson McCLELLAN v. STATE of Arkansas
    CR 78-82
    570 S.W. 2d 278
    Opinion delivered September 18, 1978
    (Division I)

      Jack King, for appellant.

      Bill Clinton, Atty. Gen., by: James E. Smedley, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was convicted of manslaughter in the killing of Coyne Sitz. The jury fixed the sentence at five years’ imprisonment. There are five points for reversal, none of which we find to have merit.

On the night of the homicide the defendant, Jim McClellan, had gone to the home of his brother’s widow, Daisy McClellan, to repair a water pipeline. Four persons — Jim, Daisy, Troy Bushman, and the decedent Sitz — participated in an extended drinking party. At some time during the evening Sitz struck Daisy. Sitz then took a red pill, chased it with vodka, and went to sleep on a couch. Jim went over and started hitting Sitz with his fists, so hard that, according to Bushmen, “Daisy told Jim to quit, that he was killing him. ” Jim did quit, but Sitz died while still lying on the couch. An autopsy indicated that the blows apparently were the cause of death. Our summation of the facts is sufficient to show that there was substantial evidence to sustain the verdict. Whether the State proved its case beyond a reasonable doubt was a question for the jury, not for this court.

Before the trial, at the request of defense counsel, the court had McClellan examined by a psychiatrist, who reported that McClellan was an episodic excessive drinker, but that he was legally competent and free from psychosis. The report did not suggest that McClellan was unfit to stand trial. It is now argued that the court had an affirmative duty to determine whether McClellan was fit to stand trial and erred in not doing so. We do not so read the statute. Ark. Stat. Ann. § 41-606 (Repl. 1977). After the psychiatrist’s report was filed there was no request by counsel that the court determine the issue of fitness. If counsel’s motion for a psychiatric examination can be construed as a motion for a determination of fitness, it was counsel’s obligation to obtain a ruling on the motion. Flake v. Thompson, Inc., 249 Ark. 713, 460 S.W. 2d 789 (1970). Absent such a ruling, no error is shown.

On the third point, the court’s finding that McClellan’s statement to the police officers was voluntary, is not clearly contrary to the evidence. To the contrary, McClellan did not see fit to testify at the Denno hearing; so the officers’ testimony is not disputed. On the fourth point, the photographs of Sitz as he lay dead on the couch were admissible to corroborate the State’s proof that he was beaten about the face. The photographs are not inflammatory in any respect.

Finally, counsel complains that the trial judge limited his direct examination of a defense witness, Gary Frost. Frost had seen the decedent, Sitz, on one occasion. Counsel sought to show that on that occasion Frost and Sitz got into an altercation about another man’s coat and that, according to Frost, Sitz “pulled a single-barrel 12-gauge shotgun with the hammer back and stuck it to my head and offered to blow my head off if I didn’t pull the coat off.” The testimony was offered to show that Sitz might have been the aggressor at the time he was killed, McClellan having said in his statement to the officers that Sitz was awake and “started cussing me” when he first hit Sitz. The court ruled that the specific instance of aggressive conduct on the part of Sitz was inadmissible.

The court was right. Rule 405 (a) of the Uniform Rules of Evidence provides that an admissible trait of character may be proved by testimony as to reputation or by testimony in the form of an opinion. On cross-examination inquiry may be made as to relevant specific instances. Rule 405 (b) then states:

(b) Specific Instances of Conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his conduct. [Ark. Stat. Ann. § 28-1001, Rule 405 (Supp. 1977).]

Rule 405 is taken verbatim from Rule 405 of the Federal Rules of Evidence. 28 USCA, Federal Rules of Evidence (1975). The Advisory Committee’s Notes to the federal rule explain why direct evidence of specific conduct is limited to instances in which the trait of conduct is squarely in issue:

Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. At the same time it possesses the greatest capacity to arouse prejudice, to confuse, to surprise, and to consume time. Consequently the rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. When character is used circumstantially and hence occupies a lesser status in the case, proof may be only by reputation and opinion.

Thus the question is, when is a trait of character strictly in issue? The answer, in the language of Rule 405 (b), is when the trait is “an essential element of a charge, claim, or defense. ”

The common-law rules of evidence, which have not really been changed by the Uniform Rule, set the point at rest. The trait of character must be an operative fact which under substantive law determines the rights and liabilities of the parties. McCormick, Evidence, § 187 (2d ed., 1954). For example, in a tort case involving the defendant’s asserted negligent entrustment of his vehicle to an incompetent driver, the plaintiff must show as a part of his substantive proof that the defendant was aware of the driver’s trait of incompetence. Proof of specific instances of incompetence is therefore admissible. Ozan Lbr. Co. v. McNeely, 214 Ark. 657, 217 S.W. 2d 341, 8 A.L.R. 2d 261 (1949). Again, if the plaintiff sues for slander because the defendant called him a liar, and the defendant pleads as a defense that the plaintiff is a liar, the plaintiff’s character as a truthful person is an essential element of the defense. Specific instances of the plaintiff’s lies would therefore be admissible at common law. See Wigmore, Evidence, §§ 202 and 207 (3rd ed., 1940).

In the case at bar the question, then, is whether Sitz’s character as an aggressive person was “an essential element” of McClellan’s defense of self-defense. Obviously it was not. One might plead self-defense after having killed the most gentle soul who ever lived. In such a situation the decedent’s character as a possible aggressor is being used circumstantially, not as a direct substantive issue in the case. The trial judge was therefore correct in disallowing the proffered proof of a specific instance of aggression on the part of the decedent.

Affirmed.

We agree.

Fogleman, Holt and Howard, JJ.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Melvin G. MARROW v. STATE FARM INSURANCE COMPANY
    78-68
    570 S.W. 2d 607
    Opinion delivered September 18, 1978
    (Division II)
    [Rehearing denied October 30, 1978.]

      J. B. Cobb, Memphis, Tenn., and William Wilson, for appellant.

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellee.
   John A. Fogleman, Justice.

This appeal comes from a summary judgment against appellant Melvin G. Marrow in his suit against appellee State Farm Insurance Company for fraud in obtaining a settlement of appellant’s claim against its insured Francisco Baltierrez for personal injuries resulting from a collision between an automobile driven by Baltierrez and another, occupied by Marrow and his family. Marrow contends that the record discloses that genuine issues of material fact existed, that the trial court granted the summary judgment prematurely because appellant’s discovery was not complete and that the trial court erred in denying certain portions of his motion for production of documents and his motion for production of documents not previously produced. We disagree with appellant on the first of these contentions. The latter two are so interrelated that they must be considered together. When we do this, we find reversible error.

Marrow sued his attorney Harold Sharpe and appellant jointly. The action against Sharpe should be classified as a malpractice suit. This phase of the suit is not involved on this appeal. Appellant alleged that Sharpe had been employed to represent him and his family in seeking recovery from State Farm Insurance Company for his damages and those of his family and that, during negotiations for settlement of these claims, the adjuster for State Farm advised Sharpe that the Baltierrez liability coverage was limited to $20,000 for any one person injured and $40,000 for all persons injured. According to the allegations of the complaint, Marrow settled his claim for personal injuries for $20,000, believing that this was his maximum possible recovery because of the assertions Sharpe attributed to State Farm. Marrow further alleged that he later discovered that the policy limits were far in excess of those he had been led to believe were applicable. Further allegations were assertions that misrepresentations of the policy limits were fraudulently made by State Farm through its adjuster. Marrow had sought recovery of $200,000 based upon medical expenses in excess of $13,000 and severe and serious permanent injuries to his person, including a permanent loss of earning capacity.

Marrow has, at all times, admitted that no representative of State Farm had ever made any representation to him about the limits of the Baltierrez coverage. His action depends upon a showing that State Farm misrepresented the amount of the policy limits to Sharpe. It appears that all negotiations with the insurance company in making a settlement of Marrow’s claim for personal injuries for $20,000 were conducted by Sharpe, who testified that his files in the case had been shredded. In a discovery deposition, Sharpe has denied that the insurance company or its agents ever made any representation to him about the amount of the policy limits. Sharpe stated that he had reached a conclusion as to the policy limits after talking with a representative of State Farm, and all his conversations were with Joe Fagan and James (Dutch) Meredith.

Marrow states unequivocally that he gave Sharpe authority to settle his claim for the amount of the Baltierrez policy limits, but for no less, whatever they were. He states, just as positively, that he was informed by Sharpe that the settlement was for the amount of the policy limits and that Sharpe had previously assured him that he could ascertain the amount of these limits from one Joe Fagan, a State Farm adjuster who lived in West Memphis. Marrow says that he did not realize that this was not true until there had been a settlement of a claim by his son-in-law for the death of Marrow’s daughter as a result of the collision. By adding the amount paid in this settlement to the recovery on behalf of himself, his wife and his son, he discovered that the total paid all parties by State Farm was $41,000. Marrow testified that when he confronted Sharpe with this fact, Sharpe stated that the State Farm representatives had misled him and had lied about the amount of the policy limits. He then endeavored to investigate, or to cause an investigation to be made, to determine the true facts. It is admitted that the policy limits for personal injuries to one person were $50,000. This action was filed after Marrow became convinced that the policy limits were in excess of those he had been led to believe were applicable.

An earlier motion for summary judgment was held premature. Before that motion was heard, Marrow’s attorney had filed a request for production of documents. This first request was denied by the court as being too generalized because it might force the production of work product and other confidential matters. That motion had sought production of the entire file of State Farm concerning Marrow’s claim. In its order, the court indicated that a particularized request should be granted. Appellant then filed a motion for production of the following documents:

1. All correspondence, memorandum, communications, or writings by State Farm Insurance Company as to the evaluation of or record of reserve for contingent liability growing out of the accident of their insured, Francisco Baltierrez, on July 4, 1971.
2. All correspondence between the defendant, Harold Sharpe, Attorney, and State Farm Insurance Company and the replies of State Farm Insurance Company as to:
(a) Evaluation of different claims against Francisco Baltierrez as a result of the accident of July 4, 1971.
(b) Offers of Settlement of the above
(c) Counter-Offers of Settlement.
(d) Any other written memorandum pertaining to negotiations and offers of settlement.
3. All documents, not privileged, pertaining to the value of the claim of Melvin Marrow against Francisco Baltierrez and his insurance company, the defendant, State Farm Insurance Company; including documentation or information which will lead to correspondence not privileged bearing on the same issues.
4. All inter-office memorandum pertaining to the evaluation of the claim of Melvin Marrow or the combined claims of Melvin Marrow and the members of his family against State Farm Insurance Company or their named insured, Francisco Baltierrez.
5. All correspondence from Harold Sharpe and the replies thereto after Melvin Marrow lodged a complaint with the Commissioner of Insurance and Banking or the Bar Association of Arkansas against Harold Sharpe.
6. All inter-office memorandum or notes or letters which might have caused Harold Sharpe to believe that Francisco Baltierrez had policy limits with State Farm Insurance Company in the amount of $20,000.00/140,-000.00.
7. All inter-office memorandum pertaining to the offers of settlement, counter-offers of settlement, or any other written memorandum pertaining to negotiations and offers of settlement.
8. All inter-office memorandum requesting, discussing, directing, or granting authorization to make offers of settlement.
9. All memorandum concerning phone conversations between defendant, State Farm Insurance Company, employees or agents and defendant, Harold Sharpe or his agents or employees pertaining to policy limits or offers of settlement.

State Farm objected to items 1, 3, 4, 6, 7 and 8. It also objected to item 2 (d). It agreed to produce other material specified in item 2, and all that requested in items 5 and 9. As to item 6, State Farm agreed to produce all its correspondence with Sharpe and all memoranda made by any adjuster concerning his negotiations with Sharpe. The trial court then ruled that, except for the written correspondence between representatives of State Farm and Sharpe and copies of written memoranda concerning conversations between State Farm and Sharpe made by the representatives of State Farm having the conversations, the requests were for matters that were either privileged, or the need for them had not been satisfactorily shown.

State Farm then filed the motion for summary judgment that resulted in the judgment from which this appeal was taken. Appellant then moved for an order requiring State Farm to produce the following documents:

1. The memorandum of 7/30/71 which was referred to in the memorandum dated 9/15/71 to Res. Supt. James Reese from Joe Fagan, West Memphis CSO, as follows: “After receiving a copy of your memo of 7/30/71 setting forth the best procedure to follow in this claim, I contacted Danny Doler and discussed the claim with him in the presence of his mother. According to our strategy, I advised Danny and his mother that we were dealing with limited funds, . . . . ”
2. Written memorandum made as a result of a phone conversation between James Reese and Joe Fagan on Spetember 15, 1971 which was referred to on Page 3 of the memorandum dated 9/15/71, heretofore described. Also on Page 4 of this same memorandum, reference is made to a meeting between Joe Fagan and Harold Sharpe to discuss the claim of Mr. Marrow and his family. The plaintiff requests any notes or memorandum made by Mr. Fagan in this meeting.
3. The office memorandum dated 11/1/71 to Joe Fagan, West Memphis, Arkansas, CSO from Res. Supt. James C. Reese indicates that the two men discussed the case by phone on October 15, 1971. Plaintiff requests production of any written memorandum of such conversation.
4. Plaintiff requests a copy of Joe Fagan’s partial closing report and any memorandums made of a conversation between Joe Fagan and James Reese, made from the office of Attorney, Harold Sharpe conveying Mr. Sharpe’s “low dollar figure” for settlement; or any written memorandum made in conjunction with or incident to this conversation.
5. Reference is made in a memorandum dated 12/3/71 from James Reese to Wayne Hill concerning a conversation between Mr. James Reese and Attorney, Sharpe. Plaintiff requests production of any memorandum or notes concerning said conversation.
6. A memorandum dated 12/15/71 from Wayne Hill to James C. Reese, contains references to frequent contacts between Wayne Hill and Attorney Sharpe between the dates of 12/3/71 and 12/15/71. Plaintiff requests the production of any notes or memorandum made by Wayne Hill in conjunction with these frequent visits during this period.
7. In the letter dated 12/15/71 from Attorney Sharpe to Jim Reese, reference is made to a phone conversation which occurred during the first several days in December. A note is also entered at the end of this letter stating that “Sharpe called 12/20/71.” Plaintiff requests production of any notes or memorandum made by Mr. Jim Reese in connection with either of these phone conversations.
8. Reference is made in the letter dated 4/5/72 from Wayne Hill to James Reese to a phone conversation of 4/5/72 between Mr. Hill and Mr. Reese. Plaintiff requests production of any notes or memorandum of this conversation made by Mr. Reese or Mr. Hill.
9. In the memorandum dated 5/2/72 from James Reese to Mr. Jack Christensen, Res. Supt. for the defendant, State Farm, Northern Illinois, there is reference to a memorandum prepared by Mr. Christensen dated 4/28/72. Plaintiff requests production of said document.
10. Plaintiff previously requested and the defendant, State Farm, agreed to produce “all correspondence from Harold Sharpe and those replies thereto after Melvin Marrow lodged a complaint.” Defendant produced a letter addressed to Mr. Melvin Marrow from Mr. George M. Polk, showing carbon copies of the letter being addressed to Mr. R. O. Noel and Mr. Troy Phillips, employees of defendant, State Farm in the “Home Office Complaint Department.” Plaintiff requests copies of all correspondence to or from Mr. Noel, Mr. Phillips, and Mr. George M. Polk concerning the complaint filed by Mr. Marrow.

This motion was entitled: “Plaintiff’s Motion for Production of Documents not Previously Produced.”

A hearing was held on these later motions. The court first granted the summary judgment and then denied the last motion of appellant for production of documents, but both actions were incorporated in the judgment from which this appeal is taken. The reasons for the denial were not stated.

In approaching the questions raised on this appeal as to the denial of appellant’s request for documents not previously furnished, we must consider the permissible scope of discovery. We have never sanctioned an outright and unadulterated “fishing expedition” under Ark. Stat. Ann. § 28-356 (Repl. 1962). Price v. Edmonds, 231 Ark. 332, 330 S.W. 2d 82. The later case of Arkansas State Highway Com’n. v. Stanley, 234 Ark. 428, 353 S.W. 2d 173, relied upon by appellant, did not overrule Price (relied upon by appellee) or abrogate the principle upon which that holding was based. The two decisions are harmonious and easily reconciled. The request in Price was that Edmonds, a utility rate payer, be permitted to inspect all the books and records of a utility commission charged with the operation of the electric power distribution system, the waterworks and the sewer system of the City of West Memphis, in connection with his suit to enjoin the commission from entering into any contract with, or making any payment to, any concern in which one or more of the commissioners had an interest. Ark. Stat. Ann. § 28-356 was not mentioned in the opinion but it was the governing statute. In Stanley, we were treating the same section of the discovery statute, but the request there was for entry upon the lands of a condemnee by the condemnor for the purpose of making test drillings to determine the extent of mineral deposits thereunder, because the landowner had contended that the lands taken from him contained valuable mineral deposits. Our recognition there that the legislature intended that the section be given a liberal construction under the rule of Hickman v. Taylor, 329 U.S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947), was in nowise a limitation on the Price decision. Hickman recognized that the knowledge essential to proper litigation was knowledge of relevant facts. In Stanley, we stated tha the two controlling factors in granting and refusing an order for discovery were relevancy and good cause, citing Barron & Holtzoff, Federal Practice & Procedure (1961) § 793. See also, Case Note, Trial Practice — Federal Rule 34 — Showing of “Good Cause” for Discovery, 8 Ark. Law Rev. 125. We found that both existed in Stanley. Although we have consistently adhered to the rule of liberal construction of this section, we have also adhered strictly to the rule that in order for a litigant to be entitled to discovery under its provisions, he must show good cause. See Drill v. Morris, 235 Ark. 40, 357 S.W. 2d 13; Tumlinson v. Harville, 237 Ark. 113, 372 S.W. 2d 385; Case Note, Trial Practice, Federal Rule 34 — Showing of “Good Cause” for Discovery, supra. Furthermore, we have not deviated from our position that relevancy is one of the two controlling factors. See Kuhl v. Arkansas State Board of Chiropractic Examiners, 236 Ark. 58, 364 S.W. 2d 790. Of course, relevancy is not limited to the question whether the documents themselves constitute evidence, if they may reasonably be expected to lead to the discovery of evidence. Ark. Stat. Ann. § 28-348 (b) (Repl. 1962); Tumlinson v. Harville, supra. See also, Case Note, supra, 8 Ark. Law Rev. 125, 126. It is significant that we have not eliminated the requirement of a showing of good cause from our statute, as has been done in other jurisdictions, so cases from those jurisdictions involving the application of a statute or rule which does not contain this requirement are not to be considered, even though it seems that, even in the absence of this requirement, a showing of necessity is required.

As in all matters pertaining to discovery the trial court has a wide latitude of discretion in determining the existence of the controlling factors in any case, and that discretion will not be controlled by this court in the absence of abuse which is prejudicial to the appealing party. Tumlinson v. Harville, supra; Curbo v. Harlan, 253 Ark. 816, 490 S.W. 2d 467; Dunaway v. Troutt, 232 Ark. 615, 339 S.W. 2d 613; Rickett v. Hayes, 251 Ark. 395, 473 S.W. 2d 446. Yet we have not hesitated to find an abuse of discretion where there has been an undue limitation of substantial rights of the appellant under the circumstances prevailing, if subsequent developments have not mooted the question. Rickett v. Hayes, supra.

In this case, we find an abuse of discretion in the denial of appellant’s last motion for production of documents. In so doing, we consider the fact that appellant, if he has any claim against State Farm, is placed in the position of having to prove it by the testimony of officers and agents of State Farm and by documents, papers and letters, written by them and kept by State Farm. In such a case, the scope of discovery permitted should be broader than otherwise and appellant here should be permitted to inspect any writing in the files of the insurance company which might lead to admissible evidence. See Connecticut Mutual Life Ins. Co. v. Shields, 17 FRD 273 (S.D., N.Y., 1955); Dow Chemical Co. v. Monsanto Co., 256 F.S. 315 (S.D., Ohio, 1966).

It is readily apparent to us that, under the circumstances, appellant’s discovery has been unduly limited. The goal of all discovery is to permit a litigant to obtain whatever information he may need to prepare adequately for issues that may develop without imposing an onerous burden on his adversary. United States v. Ling-Temco-Vought, Inc., 49 FRD 150 (W.D., Pa., 1970). A motion for production of documents must be considered in the light of the particular circumstances which give rise to it and the need of the movant for the information requested. Straughan v. Barge MVL No. 802, 291 F.S. 282 (S.D., Tex., 1968). That the information sought is not otherwise available to the party making the request, and that evidence pertaining to the issue, if there is any, would likely be in the files of State Farm, are very pertinent circumstances. Chitty v. State Farm Mutual Automobile Ins. Co., 36 FRD 37 (E.D., S.C., 1964). See also, Rekeweg v. Federal Mutual Ins. Co., 27 FRD 431 (N.D., Ind., 1961); Royal Exchange Assurance v. McGrath, 13 FRD 150 (S.D., N.Y., 1952); Turmenne v. White Consolidated Industries, Inc., 266 F.S. 35 (Mass., 1967).

From an examination of the record as abstracted, it seems clear to us that appellant was entitled to several, if not all, of the items requested in his motion for production of documents not previously produced and that denial of the motion in toto was an abuse of discretion because it constituted an undue limitation on his right of discovery. We have no hesitation in saying that the requests for items 1, 3 and 4 should have been granted because they would be calculated to lead to discovery of relevant evidence, whether favorable or unfavorable to Marrow. We speak with assurance on these items because the relevant portions of the documents giving rise to the requests were abstracted as a part of appellant’s brief in response to the first motion for summary judgment filed by State Farm. If the record actually discloses the contents of documents and writings furnished, as stated in appellant’s motion, in regard to items 2, 5, 6, 7 and 10, assuming that the conversations and contacts mentioned related to the Baltierrez policy or the claims arising out of the automobile collision, those requests should be granted. We do not speak with assurance on these items because the underlying facts are not stated in any part of the abstract of the record. We suggest that, if there is any serious question about the relationship of the requested items to this litigation, the material be submitted by State Farm to the trial judge, in camera, for a determination by him whether it should be furnished to appellant for inspection or copying by him. See Olson Rug Co. v. N.L.R.B., 291 F. 2d 655 (7th Cir., 1961).

We should add that the trial court’s ruling from which the appeal is taken was not in any way based upon the “work product” privilege and it does not appear that any of the requested material falls within that category. See Curbo v. Harlan, 253 Ark. 816, 490 S.W. 2d 467; Drill v. Morris, 235 Ark. 40, 357 S.W. 2d 13; Virginia Electric & Power Co. v. Sun Shipbuilding & Dry Dock Co., 68 FRD 397 (E.D., Va., 1975).

But little need be said about the point that appellant reserved for last in his brief. We simply do not agree that the evidence that can be gleaned from the depositions and the material obtained by discovery are sufficient to show that there was a prima facie showing of fraud on the part of State Farm, or that a genuine issue of fact existed on that issue. Taken collectively, they may justify a reasonable suspicion in Marrow’s mind. But this does not create an issue on the question of fraud, even when we consider Marrow’s testimony that Sharpe said that an agent of State Farm had misled him. Appellant characterizes this statement as double hearsay. We do not quibble about that classification, but, even though Sharpe’s testimony to this effect would probably be admissible in the case against Sharpe, his statement to Marrow clearly would not be admissible against State Farm.

Appellant misapplies Rule 801 (d) (2) (iv) of Ark. Stat. Ann. § 28-1001 (Supp. 1977). The statement in question is a statement by Sharpe which Marrow proposes to offer against State Farm, but it is clear that Sharpe has never been an agent of State Farm. The subsection upon which appellant relies relates to admissions by an adverse party. While Sharpe was an adverse party, he certainly could not make admissions or. behalf of State Farm. This double hearsay is not admissible under Rule 805. It cannot possibly be said that each part of it conforms with an exception to the hearsay rule.

Without the alleged statement of Sharpe, it is difficult to see how it could seriously be argued that there was a genuine issue of fact as to fraud.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

We agree.

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


author: Conley Byrd, Justice.

text:
    FOX HILLS COUNTRY CLUB, INC. v. THE AMERICAN INSURANCE COMPANY
    78-84
    570 S.W. 2d 275
    Opinion delivered September 18, 1978
    (Division II)

      Cathey, Goodwin & Hamilton, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   Conley Byrd, Justice.

The sole issue on this appeal is whether appellee, The American Insurance Company, under the terms of its comprehensive general liability insurance policy has a duty to defend appellant, Fox Hills Country Club, Inc., in some personal injury actions arising out of an airplane crash. After the facts were stipulated, the trial court entered a declaratory judgment that appellee had no duty to provide the “Country Club” with a defense.

The facts giving rise to this declaratory judgment action show that a social event had been planned at the Country Club for the evening of April 24, 1976. One of the members, Thomas Edward McMenamin III, volunteered to fly to Dauphin Island, near Mobile, Alabama, to obtain shrimp for the event. McMenamin borrowed an airplane from Willie G. Williams, president of the Country Club (Williams owned a one-third interest in the plane). Williams warned McMenamin not to fly the plane after dark.

McMenamin and a passenger, Thomas Lee Arrington, flew without incident to Dauphin Airport in Alabama. They purchased approximately 150 pounds of shrimp which were iced down and left in three ice chests in a motel room rented for the night. McMenamin and Arington retired to a restaurant and bar, where they drank beer and ate supper. Near midnight, McMenamin and Arington accompanied by a barmaid from the restaurant went for an airplane ride over the island. The airplane, with McMenamin as pilot, crashed during the flight, killing all occupants. Suits were filed by the estates of Arington and the barmaid against McMenamin, Willie G. Williams, and Fox Hills Country Club. Demand was made by appellants to the appellee insurance company to furnish a defense, which was refused.

The applicable policy provisions provide:

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of Coverage A — bodily injury, or Coverage B — property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.
EXCLUSIONS
This insurance does not apply: . . . (b) to bodily injury to property damage arising out of the ownership, maintenance, operation, use, loading or unloading of (1) any automobile or aircraft owned or operated by or rented or loaned to any insured, or (2) any other automobile or aircraft operated by any person in the course of his employment by insured; . . .
II. PERSONS INSURED
Each of the following is an insured under this insurance to the extent set forth below: (c) If the named insured is designated in the declarations as other than an individual, partnership or joint venture, the organization so designated and any executive officer, director or stockholder thereof, while acting within the scope of his duties as such ... .”

The personal injury complaints filed against the “Country Club” allege that the passenger and the pilot were an “agent, servant or employee” of the Country Club and that the Country Club’s negligence consisted of (a) allowing plaintiff’s decedent to become a passenger on an airplane whose pilot was under the influence of intoxicants and (b) in failing to properly supervise the operation of the airplane being used for its purposes.

The Country Club recognizes the general rule that the allegations in the pleadings against the insured determine the insurer’s duty to defend. However, the Country Club points to our cases such as Proctor Seed & Feed Co. v. Hartford Accident and Indemnity Co., 253 Ark. 1105, 491 S.W. 2d 62 (1973), and Commercial Union Insurance Company of America v. Henshall, 262 Ark. 117, 553 S.W. 2d 274 (1977), for the proposition that the duty of an insurer to defend cannot in all cases be determined from the allegations of the complaint. In its attempt to bring this case within an exception to the general rule, supra, the Country Club argues as follows, to-wit:

“The facts which indicate coverage here were not only known to the insurance company, they were stipulated to in the trial of this case. Under the stipulated facts, the only exclusion asserted by appellee was the exclusion with reference to the ‘use, loading or unloading of.. . aircraft owned or operated by or rented or loaned to any insured . . . ’ The airplane involved here was loaned to and operated by McMenamin (who, it was stipulated, was a volunteer) and not to Fox Hills Country Club. The exclusion in the insurance policy would only be applicable if McMenamin was an ‘insured’ under the policy. The portion of the policy which defines insured includes the corporation and ‘any executive officer, director or stockholder thereof while within the scope of his duties as such.’ If McMenamin was acting outside the scope of his office or duties as officer, director, stockholder, etc., then the exclusion does not apply.
Since the use or operation of the aircraft here was not being made by Fox Hills Country Club and was not being made by any officer, agent, stockholder or employee within the scope of his office, agency or employment, the exclusion attempted to be asserted by the insurance company is not applicable.”

The trouble with the Country Club’s contention is that it does not bring itself within the exception to the general rule recognized in Commercial Union Insurance Company of America v. Henshall, 262 Ark. 117, 533 S.W. 2d 274 (1977). In that case the insurer from a simple examination of the facts either knew or should have known of a potential liability of the insured within the exception to the inclusion in the insurer’s policy. Here the stipulated facts show no potential liability of the Country Club outside of the allegations in the personal injury action — i.e., the stipulated facts exonerate the Country Club from liability. Since the allegations in the actions against the Country Club for bodily injuries arising out of the use of the aircraft are clearly excluded from coverage, it follows that we find no merit to the Country Club’s contentions.

The Country Club also argues that negligent entrustment of an airplane should not be considered as arising out of the “ownership, maintenance, operation or use” of the airplane, citing Republic Vanguard Insurance Company v. Buehl, 295 Minn. 327, 204 N.W. 2d 426 (1973), and Government Employers Insurance Company v. Chahalis, 338 N.Y.S. 2d 348, 72 Misc. 2d 207 (1972). In doing so, the Country Club recognizes that we nixed a similar contention in Aetna Casualty and Surety Company v. American Manufacturers Mutual Insurance Company, 261 Ark. 326, 457 S.W. 2d 757 (1977). In view of our precedent in the Aetna Castualty and Surety Company case, supra, we find this contention without merit.

Affirmed.

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


author: Frank Holt, Justice.

text:
    Edward BUTLER v. STATE of Arkansas
    CR 78-80
    570 S.W. 2d 272
    Opinion delivered September 18, 1978
    (Division I)

      Malcolm Smith, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

This appeal is a sequel to Butler v. State, 261 Ark. 369, 549 S.W. 2d 65 (1977). There we affirmed appellant’s conviction of capital felony murder and his sentence to life imprisonment without parole. However, since appellant was not allowed to be personally present at a post-trial proceeding to settle the record, which was necessary because the court reporter’s tape recording of the trial was destroyed by fire, we held the denial of appellant’s presence was a violation of a constitutional right and remanded the case to allow him to be present at another post-trial hearing to settle or reconstruct the record of the trial proceedings. In remanding we held this “situation was comparable to that in Jackson v. Demo, 378 U.S. 368 (1964)” in which the court approved a post-trial hearing to determine the issue of the voluntariness of a confession. Subsequent to our remand, a second hearing to settle the record was held at which the appellant and his attorney were present. There appellant adopted the objections and asserted omissions from the record made by his attorney at both hearings and personally noted some of his own.

Appellant argues that without a complete and accurate trial transcript he has been deprived of his right to appeal as provided in Ark. Stat. Ann. § 43-2701 (Repl. 1977), denied due process and equal protection of the law, and this court is unable to review all errors contained in the record prejudicial to the appellant as provided in § 43-2725 and recognized in Supreme Court Rule 11 (f). As we said on the first appeal, “admittedly there were omissions” in the transcript from the reporter’s shorthand notes. A leading case, where the accuracy of a transcript is questconed, is People v. Chessman, 218 P. 2d 769 (Cal. 1950). There the court said:

The Rules on Appeal are intended to simplify and facilitate appellate procedure, not to provide for new trials on grounds which did not theretofore exist and which are not necessary to the fair administration of justice. On this appeal, as in every appeal, it is to be presumed that defendant had been accorded a fair trial and that the judgment of conviction is valid. We perceive no legal impropriety and no unfairness in placing on an appellant in the situation of Chessman the burden of showing either prejudicial error in the record or that the record is so inadequate that he is unable to show such error. Inconsequential inaccuracies or omissions in a record cannot prejudice a party; if in truth there does exist some consequential inaccuracy or omission, the appellant must show what it is and why it is consequential.

See also U.S. v. Di Canio, 245 F. 2d 713, cert. den. 355 U.S. 874, 2 L. Ed. 2d 79, 78 S. Ct. 126; Herring v. Kennedy-Herring Hardware Co., 261 F. 2d 202 (6th Cir. 1968); Turman v. Pruitt, 397 P. 2d 652 (Okla. 1964); Burton v. State, 128 So. 2d 765 (Fla. App. 1961); Fitzgerald v. Sargent, 371 A. 2d 456 (N.H 1977); and 19-24 ALR 2d LCS 1098.

Appellant here notes that there is no mention in the record of his motion to exclude three prospective jurors for cause because they were seen talking to the victim’s father before trial. However, none of these served as jurors. Any prejudice arising from the victim’s father mingling with these three prospective jurors would be mere speculation. The burden is on appellant to show error and this burden is not met by showing a possibility of error. Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975). No prejudice is demonstrated here. Furthermore, appellant did not exhaust his preemptory challenges. One cannot complain of the composition of the jury if he did not exhaust his preemptory challenges. Wells v. State, 247 Ark. 386, 446 S.W. 2d 217 (1969).

Appellant asserts that the failure to include the prosecutor’s closing argument in the record was prejudicial because his argument was improper in that it was not based upon the evidence. However, admittedly, there was no objection made to the closing argument. Objection to an alleged improper comment in a closing argument must be made at trial. Otherwise, it is not reviewable on appeal even in a capital felony case. O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618 (1972). Further, the court here, at the second post-trial hearing, ruled that the prosecution’s argument was well within the scope of reasonable inferences based upon the evidence presented at trial. The trial court is accorded wide discretion in controlling and determining the propriety of counsels’ arguments and we do not reverse the exercise of that discretion in the absence of manifest gross abuse. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387 (1973). Here no abuse of discretion is demonstrated.

Appellant contends his objection to the admission into evidence of a bloody garment, a shirt, worn by the victim was omitted from the record. The introduction into evidence of clothing worn by a victim at the time of an assault or homicide is within the sound discretion of the trial court where, as here, it serves as an aid to the jury. Farrar v. State, 240 Ark. 447, 400 S.W. 2d 289 (1966). Here admission by the court of this evidence was to show the entry point of the bullet and that the officer was acting in the line of duty. No abuse of discretion is shown.

Appellant asserts that Jackson v. Denno, 378 U.S. 368 (1964), is not applicable here inasmuch as that post-trial proceeding dealt with the voluntariness of a confession as opposed to the settlement of the record here. As indicated, we held in the first appeal that the two situations are “comparable.” Therefore, we cannot agree with appellant’s argument that the Denno type hearing was not sufficient “to reverse the damage caused by the trial Court’s refusal to allow Appellant to be present at” the first or pre-appeal hearing. Pursuant to our directive, appellant availed himself of the opportunity to examine the court reporter’s transcript of the trial proceedings and the first post-trial hearing and to personally voice to the court any objections he had in addition to those of his attorney. Appellant has not demonstrated error.

Neither has appellant demonstrated prejudice by the fact that the court reporter no longer has her shorthand notes from which the trial proceedings were transcribed. The reporter, after transcribing the record of the trial proceedings from her shorthand notes, certified that it was a full and correct transcript of all the evidence and proceedings introduced and had at the trial. At the second hearing, she testified that the transcript was a true and correct copy of the proceedings taken from her shorthand notes to the best of her ability.

The court, after this evidentiary hearing, found no “material error” with respect to any inaccuracy or omission in the transcript that might affect its “veracity” and denied appellant’s motion for a new trial.

After considering the deficiencies in the transcript argued by appellant together with those not argued on appeal, we are of the view that he has not demonstrated that the transcript was inadequately fair and accurate to afford this court a sufficient appellate review of the trial proceedings. Therefore, the court did not abuse its discretion in refusing to grant appellant a new trial.

Affirmed.

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


text:
    David BROWN v. STATE of Arkansas
    CR 78-83
    570 S.W. 2d 251
    Opinion delivered September 18, 1978
    (Division I)

      Buford M. Gardner, Jr. and John W. Hockett, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was found guilty, as a habitual criminal, on each of four counts of burglary, three counts of felony theft, one count of misdemeanor theft and one count of theft by receiving. The sentences, varying from twenty years to one year, were ordered to run concurrently. For reversal appellant first asserts that the court erred in denying his motion to suppress the evidence which was seized in the search of his residence.

The affidavit, signed by Officer Duck, in support of the search warrant stated, inter alia, that “Officer Chappelle [his companion] could see a vacuum cleaner in the house through the window.” The vacuum cleaner was found in the resultant search. However Officer Chappelle testified at the evidentiary hearing on the motion to suppress that he could not see in the house and did not make this statement to Officer Duck. According to Officer Duck’s memory, Chappelle did tell him that he observed a vacuum cleaner as stated in the affidavit. The court found with respect to the conflict in their testimony that it appeared Chappelle had forgotten he had made the statement about the vacuum cleaner. Further, the affidavit related sufficient cause for issuance of a search warrant and denied appellant’s motion to suppress.

Appellant argues that this is the only statement of the affiant that could constitute probable cause and, therefore, it invalidated the affidavit, vitiated the search and required suppression of the fruits of the search. He recognizes that our cases hold that the validity or veracity of the issuance of a search warrant cannot be retrospectively attacked by the production of other evidence. Powell v. STate, 260 Ark. 381, 540 S.W. 2d 1 (1976); Liberto & Mothershed v. State, 248 Ark. 350, 451 S.W. 2d 464 (1970). Appellant however asks us to change this rule to the one enunciated in United States v. Thomas, 489 F. 2d 664 (5th Cir. 1975) cert. den. 423 U.S. 844, 96 S. Ct. 79, 46 L. Ed. 2d 64 (1975). There the court held:

.... [Affidavits containing misrepresentations are invalid if the error (1) was committed with an intent to deceive the magistrate whether or not the error was material to the showing of probable cause; or (2) made nonintentionally but the erroneous statement is material to the establishment of probable cause for the search.

Here appellant says, viewing the evidence most favorable, it was a non-intentional misstatement. However, it was material to the establishment of probable cause. We deem it unnecessary and do not reach appellant’s argument that this alleged erroneous and material, single statement vitiated the search warrant.

Earlier this year, the United States Supreme Court in Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978) held that when the affidavit’s false or erroneous material “is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth Amendment, to his hearing. Whether he will prevail at that hearing is, of course, another issue.” See also United States v. Marihart, 492 F. 2d 897 (8th Cir. 1974), cert. den. 419 U.S. 827, 95 S. Ct. 46, 42 L. Ed. 2d 51 (1974); United States v. Carmichael, 489 F. 2d 984 (7th Cir. 1973); and United States v. Luna, 525 F. 2d 4 (6th Cir. 1975), cert. den. 424 U.S. 965, 96 S. Ct. 1459, 47 L. Ed. 2d 732 (1976).

Here we review the remaining content of the affidavit. It stated that the Boone County Sheriff’s office had received a police report of a burglary that had taken place in Stone County, Missouri; the appellant was the suspect, a warrant was outstanding for his arrest; and a description of him and the location and description of his residence and adjacent travel trailer were given. Officers Chappelle and Duck were notified of this information by the dispatcher. Appellant had had ample time (four hours) to arrive at his Arkansas residence. As they approached the house, Officer Duck (the affiant) saw a figure of a white male with short hair through a window. Appellant was described as a white male with short brown hair. The officers talked to appellant’s wife, who told them that he was not at home and refused them entrance to the house. She did consent to their searching the travel trailer behind the residence after Chappelle told her that he thought he had heard someone moving around in it. There they saw a CB radio and power pack matching a description of items taken in a recent local burglary of Marvin Wolf’s residence. No one was found in the trailer. Wolf was brought to the appellant’s house. With Mrs. Brown’s consent they entered the trailer where Wolf identified the CB and power pack as his. Appellant’s wife then refused the officers permission to search the house for other items belonging to Wolf, i.e., a CB speaker and a vacuum cleaner. Officer Duck swore to these facts in his affidavit in support of a search warrant for the residence. The warrant was issued and Duck returned to the house and served it on Mrs. Brown. A search of the house revealed a numerous variety of stolen items including Wolf’s vacuum cleaner. Also several stolen guns were recovered.

We hold that when Chappelle’s denial of the accuracy of the affidavit that he could see a vacuum cleaner through a window is not considered, “there remains sufficient content in the warrant affidavit to support a finding of probable cause.” Certainly we cannot set aside the trial court’s finding as being clearly against the preponderance of the evidence. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139 (1978).

Appellant next contends that the court erred in finding ten previous convictions from the state of Florida in the determination of finding that appellant is a habitual offender. The state introduced certified copies of eleven judgments and also introduced the certified copies of appellant’s prison records. Each judgment, rendered the same day, reflected a sentence of two years. Ten of the judgments cross-referenced each other, stating that they would run concurrently. The eleventh judgment was not mentioned in the other ten but it stated that it would run concurrently to them. The court found, sitting as a jury on the habitual criminal issue, that appellant had ten prior convictions and did not consider the eleventh. No error is demonstrated. Ark. Stat. Ann. § 41-1001 (Repl. 1977). § 41-1003 provides:

A previous conviction or finding of guilt of a felony may be proved by any evidence that satisifes the trier of fact beyond a reasonable doubt that the defendant was convicted or found guilty. The following are sufficient to support a finding of a prior conviction or finding of guilty:
(1) a duly certified copy of the record of a previous conviction or finding of guilty by a court of record; or (2) a certificate of the warden or other chief official of a penal institution of this state or of another jurisdiction, containing the name and fingerprints of the defendant, as they appear in the records of his office ....

Appellant cites us no authority requiring that each judgment cross-reference the others nor, as appellant asserts, each indicate that the plea of guilty was freely and voluntarily made. It is assumed that a defendant who appears in court with an attorney of his own choice has ample opportunity to understand a plea of guilty and the consequences thereof unless the contrary is shown. Thornton v. State, 243 Ark. 829, 422 S.W. 2d 852 (1968). Nothing to the contrary was shown here. The judgments contained all of the requisite information needed for use in the enhancement of appellant’s sentence.

Affirmed.

We agree: George Rose Smith, Byrd and Howard, JJ.


author: Darrell Hickman, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. BASIN DEVELOPMENT CORPORATION
    78-36
    571 S.W. 2d 578
    Opinion delivered September 18, 1978
    (Division II)
    [Rehearing denied October 30, 1978.]

      Thomas B. Keys, Kenneth R. Brock, and James N. Dowell, for appellant.

      Warner & Smith, by: J. H. Evans, for appellee.
   Darrell Hickman, Justice.

This is an appeal of an Arkansas State Highway Commission condemnation case from the Sebastian County Circuit Court.

The jury found the appellee landowner, Basin Development Corporation, was entitled to a total compensation of $128,520.00 as damages resulting from the appellant Highway Commission’s taking of some 12.43 acres to be used for an interchange.

The land taken, which also included a fraction of an acre for a permanent construction easement, is located in the southern part of Fort Smith, Arkansas. The condemned tract is to be used to build an interchange between Interstate 540 and Jenny Lind Road. Jenny Lind Road runs through the eastern part of a 137 acre tract of land owned by the appellee.

The taking occurred in May of 1975, and there was no dispute that the affected part of the 137 acres consisted of 63.79 acres. This means that after the taking in fee there remains 51.36 acres in the affected tract. It was assumed by all of the witnesses testifying, specifically the appraisers used by the appellant and appellee, that there existed at the time of the taking a four lane highway through the property. Such was not the case. This was apparently done because the Highway Commission changed its plans, which were originally to build an on-grade crossing at this location and instead, for safety reasons and other reasons, decided to build an interchange with an overpass.

There is no doubt that the property in question is valuable, just how valuable being a disputed matter. The appraiser for the Highway Commission testified that the land was worth $3,750.00 an acre before the taking and the appraiser for the landowner testified that the land was worth $12,000.00 an acre before the taking. After testifying about comparable sales in the vicinity of this land, the possibilities of commercial development, and other considerations, the expert witness for the landowner testified that in his opinion the damages resulting to the landowner totaled $568,680.00. The expert witness for the Highway Commission testified that in his opinion the damages would total $55,000.00, $52,000.00 for the twelve acres and some $3,000.00 for the construction easement.

The appellant challenges the judgment of the lower court by alleging three errors: first, the court permitted the landowner’s attorney during opening statement to exhibit to the jury a map of the city of Fort Smith which was marked indicating the location of twelve tracts of land in the vicinity of the land in question which would be used by the landowner’s expert as comparable sales. These sales would be primarily the basis of the expert’s opinion testimony of the market value of the land and the damages resulting from the taking; second, the appellant argues the trial court was in error in failing to admit evidence to the jury that the landowner had offered to sell the land to the Highway Commission before condemnation proceedings were commenced for a price of $62,000.00; and, finally, the appellant argues the verdict was excessive and without supporting substantial evidence. We find no error and affirm the judgment.

The first alleged error is that the appellee’s attorney should not have been permitted to refer in his opening statement to a city map on which was marked the location of twelve different pieces of property; appellee’s attorney stated that their expert witness would testify that the recent sales of these twelve tracts were comparable sales. The appellant made a timely objection and it was overruled. The appellant cites the case of Arkansas State Highway Commission v. Roberts, 246 Ark. 1216, 441 S.W. 2d 808 (1969) as authority for its position requiring reversal. In Roberts we reversed the judgment of the lower court and one of the reasons for reversal was that the landowners used in an opening statement aerial photographs of the land in question over which were plastic overlays showing the proposed location of the highway. We said that the overlays were readily separable from the photographs and should have been excluded; they had no possible relevance to the value of the land on the day of the taking. We found this was error which was presumed prejudicial because there was no evidence that it was not prejudicial. That is not the case here. Every one of the marked tracts on the map were later used as comparable sales by the expert witness testifying for the appellee. The map was later referred to by the expert witness. The appellant is unable to demonstrate that the ruling of the trial court was reversible error. Keathley v. Yeats, 232 Ark. 473, 338 S.W. 2d 335 (1960).

The second allegation of error is also without merit. During cross examination of the president of the appellee corporation, the attorney for the Highway Commission was able to ask if it was not true that the corporation had offered to sell the land for $62,000.00 to the Highway Commission before condemnation proceedings were commenced. The witness admitted it was true. However, during an in-chambers conference the court decided that the testimony was inadmissible and precluded the Highway Commission from further inquiry of this witness or other witnesses regarding the offer and ordered the testimony stricken. Apparently the appellee did make an offer or attempt to negotiate with the Highway Commission before the condemnation proceedings were, in fact, commenced. The record indicates that the condemnation proceedings were commenced twenty-two days after the so-called offer.

According to the appellant, the purpose of the evidence was to discredit the witness’ testimony, who was willing to sell the land at one time for a considerably less amount of money than he was saying it was worth at the time of the trial. We have held before that such evidence is inadmissible. Huitt v. Bradley County, 253 Ark. 376, 486 S.W. 2d 21 (1972). The reason for such a rule is to encourage negotiation and settlement of such claims without prejudice to either parties’ later right to fairly litigate their case. There is no doubt in this case that the so-called offer was not an offer made to a disinterested third party but was one made to an authority which was known to have the power to condemn and take the land regardless of an offer. In fact, the land was taken twenty-two days later.

Finally, the appellant argues that the verdict was excessive, arguing in detail three reasons: the appellant argues that the expert witness of the landowner had no basis for his opinion because the small tracts of land used by him as comparable sales were not, in fact, comparable; also, that the same expert witness failed to take into consideration the traffic count and to a great extent based his opinion on the fact that the property had been zoned commercial although it was not being used or developed as commercial property.

The size of the tracts of land or lots used by the appellee’s expert witness ranged from lots and tracts of land of less than two acres to tracts consisting of twenty-five and fifty-two acres. These tracts were all within a mile or so of the land in question. We find on review that the use of the smaller tracts in this instance, as one element in arriving at an opinion regarding market value, was not error. Arkansas Pawn & Light Company v. Haskins, 258 Ark. 698, 528 S.W. 2d 407 (1975). Neither do we find error in the expert witness’ reliance on the fact that the property had been zoned commercial but not developed. It was zoned before the taking and could obviously be developed for commercial purposes. The degree of development and value to be gained were matters of opinion. The argument of the appellant regarding the traffic count and the fact that the property was not developed is necessarily diminished when it is considered that all witnesses assumed that a four-lane highway ran through the property at the time of the taking, which, in fact, was not the case.

In summary, the appellant received a fair trial free of prejudicial error. The verdict is supported by substantial evidence and, consequently, we affirm the judgment of the trial court.

Affirmed.

We agree.

Fogleman, Byrd and Howard, JJ.


author: George Howard, Jr., Justice.

text:
    Terry Edward ROGERS v. STATE of Arkansas
    CR 78-81
    570 S.W. 2d 268
    Opinion delivered September 18, 1978
    (Division I)

      Ray & Donovan, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   George Howard, Jr., Justice.

We are to decide the following issues presented by appellant’s appeal from his jury trial resulting in a verdict of guilty of the charge of attempted rape, and a sentence to the Department of Correction for twenty years:

1. Does the question of a defendant’s competency to stand trial present a question of law to be determined by the trial court, or is the question essentially one of fact necessitating its resolution by the jury?
2. Whether appellant was deprived of his constitutional right to counsel where appellant was required to be viewed by an alleged eye-witness prior to appellant having been advised of his right to counsel?

The essential facts for a determination of the issues tendered are:

Appellant was charged by information with the crime of attempted rape of a female patient at Forrest Memorial Hospital, Forrest City, Arkansas.

The patient had undergone surgery on March 16, 1977, in connection with a broken arm. While in her room, between 11:20 and 11:30 p.m., the patient was awakened by the purported attempt on the part of appellant to rape her and, as a consequence of the patient’s scream, appellant jumped from her bed, exited the room and ran down a hallway and left the building.

A charge nurse on duty heard the scream, and as she exited an adjacent room, she saw a black male running from the patient’s room, but could not identify him.

An emergency medical technician, Lonnie Williams, on duty also heard the scream and observed the individual running down the hall and commenced pursuit of the individual who exited the entrance to the hospital. The technician could not identify the individual, but could describe a jacket that the individual was wearing.

The Forrest City Police Department was immediately informed of the incident and a patrol car began patrolling the hospital area in search of the black male.

Several hours later, Officer Buddy Kennedy observed appellant driving his vehicle on the streets of Forrest City in an erratic manner and placed appellant under arrest for reckless driving. Appellant was carried to the hospital to be viewed by the medical technician who identified the jacket that appellant was wearing as the same jacket worn by the individual whom he had observed earlier fleeing from the hospital. However, appellant was not advised of his right to counsel until sometime after he had been viewed by Lonnie Williams. Appellant was placed in jail and subsequently charged with the offense of attempted rape.

On May 25, 1977, appellant was committed to the State Hospital for nervous disease for a mental examination and evaluation. On June 23, 1977, a medical report was rendered finding appellant without psychosis. The report concluded:

“It is the opinion of the examining psychiatrist and the joint opinion of the psychiatric staff that Terry Rogers is not mentally ill to the degree of legal irresponsibility at the time of this examination and probably was not at the time of the commission of the alleged offense.
“It is further the opinion of the examining psychiatrist and the joint opinion of the psychiatric staff that Terry Rogers has the mental capacity to understand the proceedings against him and has the mental capacity to assist effectively in his own defense; and, that he was probably not suffering from mental disease or defect of such degree as to make him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."

APPELLANT’S CONTENTIONS FOR REVERSAL

1. The trial court erred in not permitting the jury to determine whether appellant was competent to stand trial.

2. That appellant was denied due process of law when appellant was required to appear before an eyewitness for identification without first having been advised of his right to counsel.

THE DECISION

I.

Appellant argues that the trial court committed reversible error in refusing to permit the jury to determine whether appellant was mentally competent to assist in his own defense and to fully understand the nature of the proceedings against him.

In support of this posture, appellant cites the following language from Forby v. Fulk, 214 Ark. 175, 214 S.W. 2d 920 (1948):

“Insanity at the time of trial, or when the crime was committed, may always be interposed as a defense at the time the defendant is being tried for the offense alleged. To deprive the defendant of this defense would be contrary to our constitutional provision (Art. VII, § 23) which makes juries triers of facts. (Emphasis added)

We are persuaded that appellant’s reliance on Forby v. Fulk, supra, in support of his argument is misplaced for Forby does not come to grips with the questions: At what stage of the trial is the issue of competency to stand trial to be submitted, and in what manner is the question to be presented? Thus, Forby is not dispositive of the issue.

Furthermore, we have recognized that there is a difference between a defendant’s competency to stand trial and his insanity at the time of the commission of the alleged offense. See: Turner v. State, 224 Ark. 505, 275 S.W. 2d 24 (1955) (concurring opinion of former Associate Justice Ed. F. McFaddin). It is clear that the question of a defendant’s competency to stand trial is essentially a jurisdictional matter and is central to the trial court’s authority to require a defendant to proceed to trial and is separate and apart from any adjudication of criminal responsibility. Consequently, this presents a question of law to be resolved by the trial court as distinguished from an issue of fact to be resolved by the jury.

Moreover, Ark. Stat. Ann. § 41-606 (Repl. 1977) provides, in relevant part, as follows:

“If the defendant’s fitness to proceed becomes an issue, it shall be determined by the court. If neither party contests the finding of the report filed pursuant to section 605 [§ 41-605], the court may make the determination on the basis of the report. If the finding is contested, the court shall hold a hearing on the issue. ”

We conclude that the action of the trial court in resolving the question as to appellant’s fitness to stand trial was proper and that Ark. Stat. Ann. § 41-606 (Repl. 1977) in making the issue a question of law does not in any way violate Art. VII, § 23 of the Arkansas Constitution which requires issues of law to be determined by the court and matters of fact to be resolved by the jury.

A finding by a trial court that a defendant is mentally competent to stand trial and is able to rationally assist his counsel does not preclude or prejudice the accused in asserting a plea of insanity as a defense to the crime charged.

II.

Appellant further contends that he was deprived of Sixth Amendment rights, as secured to him against State action under the Fourteenth Amendment to the United States Constitution, when appellant was required to appear before an alleged eyewitness for identification before he was advised of his right to counsel.

The record before us reflects that when Officer Kennedy arrested appellant for reckless driving, Officer Kennedy immediately carried appellant to the Forrest Memorial Hospital to determine if Lonnie Williams could identify him. Appellant had not been charged with the offense involved and, moreover, was taken into custody for a traffic violation. Lonnie Williams could not identify appellant, but did recognize the jacket that appellant was wearing as the one worn by the individual he had chased from the hospital.

We are persuaded that appellant’s claim of error is without merit. The facts in this case are to be distinguished from those facts in United States v. Wade, 388 U.S. 218 (1967), a leading case dealing with the compelled confrontation of an accused before the victim or witnesses to a crime for identification purposes, cited in our case Steel v. State, 246 Ark. 75, 436 S.W. 2d 800, which is relied upon by appellant.

In United States v. Wade, supra, the accused was exhibited to witnesses before trial at a post-indictment lineup for identification purposes without notice to and in the absence of the accused’s court appointed counsel. Here, appellant agreed voluntarily to return to the hospital and be viewed by Lonnie Williams before appellant had been charged or even incarcerated. At this posture of the matter, it can be readily said that the viewing of appellant by Lonnie Williams was not a critical stage of the prosecution at which appellant was “as much entitled to such aid [of counsel] ... as at the trial itself.” Powell v. Alabama, 287 U.S. 45.

In addition, the record clearly shows that Lonnie Williams stated that he could not identify appellant, but only recognized the jacket. Moreover, appellant testified that he went to the victim’s room at the hospital and was wearing the jacket; the charge nurse also testified that the jacket introduced into evidence was similar to the one she had seen worn by the individual who ran from the hospital.

Furthermore, the record before us does not reflect that appellant voiced an objection to any of the testimony offered with reference to the identification of the jacket, nor was any objection registered to the introduction of the jacket into evidence. It is well settled that this Court will not consider an issue raised for the first time on appeal. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974).

Affirmed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.

      Dr. John Althoff, Chief Psychiatrist at the State Hospital and one of the members of the psychiatric staff that examined appellant, disagreed with the majority’s report finding appellant without psychosis.

      In this regard, appellant’s attorney was not permitted to ask Dr. Althoff, in the presence of the jury, his opinion regarding appellant’s mental capacity to assist in his defense as a result of mental disease. In addition, the trial court refused to instruct the jury that they could find from a preponderance of the evidence that appellant, as a consequence of mental disease, is incapable of assisting in his defense and understanding the proceedings against him.


author: George Rose Smith, Justice.

text:
    Patricia A. RAY v. Nell PEARCE et al
    78-49
    571 S.W. 2d 419
    Opinion delivered September 25, 1978
    (Division I)
    [Rehearing denied October 30, 1978.]

      H. David Blair, of Murphy, Blair, Post & Stroud, for appellant.

      James C. Johnson, of Engeler, Johnson & Sanders, for appellees.
   George Rose Smith, Justice.

In 1968 the appellees, Nell Pearce and the John A. Daltons, bought two lots in Findevco Scenic View Subdivision in Baxter county. The subdivider, Findevco Corporation, upon making the sales, should have paid $150 per lot to the appellant, Patricia A. Ray, to obtain a release of the lots from Ms. Ray’s blanket mortgage upon the entire subdivision. Findevco Corporation, however, failed to make the payments and obtain the releases. The question now is whether the purchasers are liable to Ms. Ray for $150 per lot, as the chancellor held, or for the entire deficiency judgment of $7,083.46 that resulted from Ms. Ray’s subsequent foreclosure of her mortgage.

The chancellor was right. When Ms. Ray sold a 75-acre tract to Findevco Corporation in 1967, the parties contemplated that the land would be platted as a residential subdivision. Findevco executed a $30,000 mortgage on the tract. The parties ’ contract provided that Findevco could sell lots in the subdivision for not less than $1,000 each and obtain a release of each lot from the mortgage by paying Ms. Ray $150 per lot. Findevco failed to make the $150 payments for the two lots sold to the appellees.

Findevco eventually went into bankruptcy. Ms. Ray foreclosed her mortgage without joining the appellees as defendants in the suit, an omission to which no importance is attached by either side. After the foreclosure proceedings were over, Ms. Ray brought this suit to cancel the appellees’ deeds as clouds on her title or to foreclose the lien of her $7,-083.46 deficiency judgment. The defendants successfully contended that they were liable only for $150 for each lot.

The appellant’s position is plainly inequitable, since she seeks to obtain some $7,000 instead of the $300 to which she was entitled under her contract with Findevco. The appellant concedes in her brief that the appellees are entitled to the benefit of any rights under the contract which Findevco Corporation might have asserted. It is argued, however, that Findevco was itself in default and therefore could not have insisted upon performance by the appellant.

This argument disregards the basic principle that a party cannot insist upon the benefits of a contract without at the same time assuming its burdens. That the rule applies despite a breach of contract by the other party was settled by our decision in Williams Mfg. Co. v. Strasberg, 229 Ark. 321, 314 S.W. 2d 500 (1958). That case is essentially in point and governs this one.

Affirmed.

We agree.

Harris, C.J., and Holt and Howard, JJ.


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

text:
    TRAVELERS INSURANCE COMPANY et al v. Richard H. MARTIN
    78-220
    571 S.W. 2d 416
    Opinion delivered September 25, 1978
    (Division I)
    [Rehearing denied October 30, 1978.]

      Byron S. Southern, of: Southern, Stewart, Gunter & Alexander, for appellants.

      Winfred A. Trafford, of Holmes, Holmes & Trafford, for appellee.
   George Rose Smith, Justice.

This is a workmen’s compensation case. The injury, sustained in 1973, is admittedly compensable. The principal appellant, the employer’s insurance carrier, now admits that the claimant is totally and permanently disabled. The administrative law judge and the commission found, however, that the carrier had originally controverted all the claim in excess of a 40% permanent partial disability. On that basis the claimant was allowed a $750 attorney’s fee, which is the first point at issue.

The commission also found from the medical testimony that the claimant is in need of nursing services. Those services have been performed by the claimant’s sister. The commission directed that the employer and insurance carrier either provide professional nursing care or work out some arrangement with the claimant’s family to provide that care. The commission’s opinion stipulated that if the parties were unable to agree about the nursing care a hearing should be held by the administrative law judge. Whether the appellants are liable at all for the sister’s nursing care is the other point at issue.

The appellants’ abstract of the record, even as partly supplemented by the appellee, is so deficient that reversible error is not shown. We discuss the issues only in sufficient detail to show why this is true.

The commission’s opinion, which is essential to an understanding of the first point, is not abstracted, as it should have been. We quote a pertinent paragraph from that opinion, to confirm its controlling importance:

The record is clear and convincing that the respondents did not advise the claimant, his attorney, nor the Arkansas Workmen’s Compensation Commission until January 27, 1976, that they would ever accept any degree of permanent disability in excess of 40 percent. This response was written to the Commission after the claimant’s attorney had requested a hearing, claiming permanent and total disability. It would appear by the actions of the respondent-insurance carrier that they were paying only 40 percent to the body as a whole and if the claimant’s attorney had not requested the hearing, that is all the claimant would have received. In order to avoid controversion, respondents should immediately report to the Commission any change as to their stated position. To sit back idly to see if anyone disagrees with them at some time in the future and then say, “yes, we were going to pay permanent and total,” is not sufficient to avoid controversion of the increase in disability. Therefore, we can only conclude that the respondents have controverted all disability over 40 percent to the body as a whole.

The commission’s opinion was based at least in part upon two letters written by the claimant’s attorney, both of which, according to the commission’s opinion, indicated that the claimant was totally and permanently disabled. Neither of those vital letters has been abstracted. Moreover, Rule 9 requires that pertinent testimony be abstracted in the first person. Contrary to the rule, the appellants have merely quoted, in question and answer form, a few excerpts from the testimony that are favorable to them. We find the abstract to be flagrantly deficient and therefore affirm the award of the $750 attorney’s fee.

With regard to this point the appellee asks in his brief that maximum attorney’s fees be allowed upon all the controverted allowance of disability benefits in excess of 40%. As far as the attorneys’ services before the administrative law judge are concerned, the claimant stated in his notice of appeal to the full commission: “The appeal relates only to the claim for nursing services and not to the award for attorney’s fees. We agree with the award of attorneys’ fees in the award designated by Judge Rebsamen.” As far as any later attorneys’ services may be concerned, there was no cross appeal either from the full commission’s decision or from the circuit court’s affirmance. We therefore cannot award additional affirmative relief to the appellee. We do, however, allow the $250 attorney’s fee authorized by Ark. Stat. Ann. § 81-1332 (Repl. 1976) for services in this court.

The commission began its discussion of the second point now in dispute with this statement: “As to the issue of nursing care, we must rely heavily upon the medical evidence presented.” The appellants have not abstracted any of that medical evidence. Consequently we are not in a position to say that the commission’s findings are not supported by substantial evidence.

Affirmed.

We agree. Fogleman, Holt, and Howard, JJ.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I disagree with the majority’s disposal of this case under Rule 9.

The Workmen’s Compensation Law, Ark. Stat. Ann. § 81-1318, provides how a claim should be filed, including claims for additional compensation. Ark. Stat. Ann. § 81-1319 provides for the rights of the employer and specifically states:

“(d) RIGHT TO COMPENSATION CONTROVERTED. Each employer desiring to controvert the right to compensation shall file with the Commission, on or before the fifteenth (15th) day following notice of the alleged injury or death, a statement on a form prescribed by the Commission that the right to compensation is controverted on the grounds therefor, the names of the claimant, employer, and carrier, if any, and the date and place of the alleged injury or death. Failure to file such statement of controversion shall not preclude the urging of any defense to the claim subsequently filed, nor shall the filing of a statement of controversion preclude the urging of additional defenses to those contained in such statement of controversion.”

In so far as here applicable the provision (Ark. Stat. Ann. § 81-1332) for assessment of attorney fees provides:

“. . . Whenever the Commission finds that a claim has been controverted, in whole or in part, the Commission shall direct that fee [fees] for legal services be paid by the employer or carrier in addition to compensation awarded, and such fee [fees] shall be allowed only on the amount of compensation controverted and awarded. Whenever the Commission finds the claim has not been controverted but further finds that bona fide legal services have been rendered in respect to the claim, then the Commission shall direct the payment of such fees out of the compensation awarded.”

Appellant’s abstract of the record consists of approximately one and one-third pages and provides as follows:

“A Workmen’s Compensation claim was filed on July 5, 1973, claiming medical, permanent disability, total disability, attorney’s fees, and any other benefits entitled to under Workmen’s Compensation Commission Laws of Arkansas. The issues before the Court are whether this case is controverted and whether claimant’s sister is entitled to compensation for nursing services. On July 29, 1976, the opinion of the Referee was filed concluding that while respondents had not controverted all benefits in excess of forty per cent to the body as a whole, they had controverted the claim in part and that action forced claimant to secure attorney’s services and that attorney’s fees were due to claimant’s attorney in the amount of $750.00 to be paid by respondents; further finding that claimant’s sister was not entitled to receive payment for nursing services. Both parties filed timely Notices of Appeal. The opinion of the full commission was filed September 7, 1976, modifying the opinion of the referee. The full commission affirmed the award of an attorney’s fee in the sum of $750.00, plus adding an additional $100.00 attorney’s fee, pursuant to Act 1227 of 1975 (Extended Session). The Commission further found that claimant’s sister would be entitled to remuneration for nursing services, but did not indicate in what amount Respondent’s Notice of Appeal was timely filed. Respondents have appealed from the record as a whole.”

The abstract of appellee’s testimony shows that he was being paid compensation and had been reimbursed for all expenses for which he had submitted a claim throughout the entire time of his disability.

Appellant’s abstract of the testimony of Claude Prater, pages 9 through 14 of the abstract, shows that the claim for additional benefits was filed with the Commission on January 19, 1976, and that on January 27, 1976, the carrier accepted the claim as being permanent and total. This testimony also shows that there had been oral communication between the carrier and claimant’s attorney prior to the filing of the claim and that in those contacts the carrier had accepted the claim as total and permanent. In fact the only dispute prior to the filing of the claim centered around the issue of whether the carrier would enter into a joint petition for a lump sum settlement.

While the abstract here, which consists of pages 7 through 14 of appellant’s brief, may not be the best abstract presented to this court, it at least is sufficient to raise the issue of whether the employer controverted the claim for additional benefits within the meaning of the Workers’ Compensation Law. In this day and time when the premium for Workers’ Compensation Coverage often exceeds thirty percent of an employer’s total payroll, we should give a definitive answer to appellant’s contention that it had not controverted the claim as a matter of law.

In any event the record here is not so flagrantly deficient that appellant should not be given the opportunity to reprint its abstract in accordance with our discretion under Rule 9(e)(2) — see Russell v. Pryor, 264 Ark. (July 17, 1978).

For the reasons herein stated, I respectfully dissent.


text:
    William Edward PORTER v. STATE of Arkansas
    CR 78-90
    570 S.W. 2d 615
    Opinion delivered September 25, 1978
    (Division II)

      Don Langston, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

William Edward Porter appeals from a decision of the Sebastian County Circuit Court denying post-conviction relief pursuant to Rules of Crim. Proc., Rule 37 (1976).

The trial judge, after a lengthy hearing, granted credit to Porter for jail time served but otherwise denied his petition and on appeal we find no error in the court’s decision.

Porter was originally sentenced in 1969 by Sebastian County Circuit Judge Paul Wolfe, now deceased, to twenty-one years in the Arkansas Penitentiary on some twenty-two charges involving burglary and grand larceny. At that time he was on probation on two counts of possession of stolen property; his probation was revoked in the same proceeding in which he was sentenced on the other twenty-two charges. Shortly after Porter was sentenced to twenty-one years, he escaped from the jail, was caught a few days later and sentenced to two more years on the escape charge, consecutive to the twenty-one year sentence; he also received five years probation for stealing a bread truck in connection with his escape.

In all instances Porter pleaded guilty to these charges. In 1969, according to Porter, he had already spent twenty-three of his forty years incarcerated in penal institutions.

Porter’s petition contains numerous complaints regarding violation of his rights. He claims that at the time he was originally placed on statutory probation he had already confessed to several offenses but was not charged because of a “deal” he made with a detective. The agreement was that, in consideration for his cooperation with the detective, Porter would be allowed to remain free. The cooperation was supposed to consist of helping the detective catch another individual in a burglary or larceny.

Porter argued that the confession he made to numerous burglaries before he was charged with some twenty-two counts of burglary and grand larceny was a result of coercion and trick by the officers. He alleged that he had ineffective counsel at the time he pleaded guilty.

He claimed that the trial judge was prejudiced and committed error in failing to advise him of his rights at the time he pleaded guilty.

He claimed that he has received cruel and inhuman treatment in the penitentiary and is being prevented from earning “good time” and being paroled. Finally, he argued that he had served enough time, had learned his lesson and that his sentence should be reduced.

In summary, Porter’s petition and testimony was that everybody had violated his rights: the detective working on his case; his court appointed attorney; the FBI; a psychiatrist; the judge; his jailers; and, in general, the judicial system of Sebastian County.

Porter testified at length, as did his court appointed trial attorney and several police officers who had worked on his case. The original transcript of his plea and sentencing procedure before Judge Wolfe in 1969 was before the court. The witnesses for the state essentially disputed Porter’s testimony. Therefore, the issue became one of credibility and weight of testimony.

The trial judge, after hearing and considering the evidence, and deliberating on the matter, made a finding that Porter’s petition was without merit. On review of the findings of the trial court, after a Rule 37 hearing, we look to see if those findings are clearly against the preponderance of the evidence, which is essentially the same standard of review as the “clearly erroneous” rule followed by the federal courts. See Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974); Winford v. Swenson, 517 F. 2d 1114 (8th Cir. 1975), reh. den. (1975); State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139 (1978). It was the petitioner’s burden to prove his allegations and in this case the trial judge found he had not met that burden. We cannot say, after carefully examining all his allegations, the record, and the court’s findings, that its findings are clearly against the preponderance of the evidence.

We are not unmindful of Porter’s request for leniency. However, as the trial judge pointed out, the original twenty-one year sentence was, if anything, light considering the number of charges involved, and his request for mercy is a matter for the parole board.

Affirmed.

We agree.

Fogleman, Byrd and Howard, JJ.


text:
    Melvyn Epstein FESTINGER et al v. Helen Epstein KANTOR et al
    77-431
    571 S.W. 2d 82
    Opinion delivered October 2, 1978
    (Division I)

      Howell, Price, Howell & Barron, P.A.,; John F. Gibson, Sr.; Reinberger, Eilbott & Smith; and Eichenbaum, Scott, Miller, Crockett & Darr, for appellants.

      Friday, Eldredge & Clark; Drew & Mazzanti; Sanford L. Beshear, Jr., and Robert R. Wright, for appellees.
   George Rose Smith, Justice.

These two cases, consolidated in the trial court, have been pending for more than five years, but have not yet been brought to trial on the merits. The only question we need consider on this appeal is whether two companion orders entered by the chancellor on October 12, 1977, are final and appealable. We hold that they are not and therefore dismiss the appeal.

Sam Epstein, a resident of Lake Village, died testate in 1944, survived by his widow and three daughters. The bulk of his estate was left in trust and has been administered by trustees ever since. We are told that the present litigation about the trust property involves more than 9,000 acres of land, a cotton gin, a filling station, oil and gas leases, and commercial property. The testator’s widow died in 1963. Her will created another trust that has also been managed by the Sam Epstein trustees and is also involved in this litigation.

In July, 1973, two of Sam Epstein’s daughters, Helen Kantor and Sylvia Angel, brought suit against the third daughter, Melvyn Festinger, for a partition of the property. The complaint took the position that the three sisters own the trust property in fee simple, subject to the termination of the trust. Mrs. Festinger argues that at the termination of the trust the property passes to the three sisters and to their bodily heirs. Two of the sisters have descendants; Mrs. Kantor, 70, does not. In August, 1973, Mrs. Festinger filed the second suit, seeking a construction of both her parents’ wills. The two cases were consolidated.

Through the years the issues have proliferated. At present the pleadings seek an interpretation of the two wills, a construction of a court order entered in 1964, continuing the existence of the Sam Epstein trust after his widow’s death, an audit of the trustees’ accounts, an accounting, the removal of the present trustees, the appointment of a receiver, the termination of the trüsts, and partition of the property. There are also pleadings bringing in the bodily heirs of Mrs. Festinger and of Mrs. Angel and third party complaints bringing in still other defendants. It is not an overstatement to say that the issues are as numerous as would ordinarily be found in a half dozen lawsuits.

A pretrial conference was held in September, 1977. The pretrial order includes a recitation that two basic issues — the construction of Sam Epstein’s will as it affects the title to the land and the effect of the 1964 court order — “may be determined as a matter of law prior to trial without objection by any party made this date.” Pursuant to that pretrial order the chancellor entered, on October 12, 1977, the two companion one-page orders now before us. The first, with no discussion of the law, finds in two sentences that Sam Epstein’s will left the property to his three daughters in fee simple, not in fee tail. The second finds that under the 1964 order the three daughters were bound by their election to continue the existence of the Sam Epstein trust. This order tacitly recognizes that it is not final, by providing that the parties may make further proof about the effect of the 1964 petition and order.

When the entry of the two orders was announced, opposing counsel became alarmed about the possibility that the orders might be construed to be final in the sense that they would be res judicata if appeals were not taken within 30 days. After a hearing upon a motion to set aside the two orders, originally styled “decrees,” the chancellor merely changed the titles by specifically labeling them “Interlocutory Orders.” The parties then perfected the present appeal and cross appeal. The size of the record, comprising a 13-volume typewritten transcript condensed into a 410-page printed abstract, results from the parties’ attempt to bring up for review, in the wake of the supposedly final orders, a number of other points that are clearly interlocutory.

Counsel actually have very little to say in their briefs about the finality and appealability of the two main orders. The appellees, for example, without citation of specific supporting authority, assert that the order construing Sam Epstein’s will is final because it “conclusively” excludes the bodily heirs of the daughters from any interest in the estate.

The test of finality, however, is not whether the order settles the issue of title as a question of law. To be final the decree must also put the court’s directive into execution, ending the litigation or a separable branch of it. On this controlling point Chief Justice Cockrill’s entire opinion in Davie v. Davie, 52 Ark. 227, 12 S.W. 558, 20 Am. St. Rep. 170 (1889), is applicable, but we quote only its especially pertinent language:

A judgment in equity is understood ordinarily to be interlocutory when inquiry as to matter of law or fact is directed preparatory to a final adjudication of the rights of the parties. . . . But “where the decree decides the rights to the property in contest and directs it to be delivered up, or directs it to be sold, and the complainant is entitled to have it carried into immediate execution, the decree must be regarded as final to that extent, although it may be necessary for a further decree to adjust the account between the parties.”
# 5fC 5jC Jfi *
In this case while the decree takes the form of a final order in adjudicating the parties ’ proportionate interests in the land, it is apparent that the court has not fully adjudicated that branch of the cause. The relative interests of the parties in the land have been ascertained and determined, but . . . the court is yet to determine . .. what amounts shall be charged as liens upon the several interests, and whether there shall be a sale of some of the interests to satisfy the same. The decree does not direct its execution, but looks to further judicial action before that event. The plaintiffs can suffer no injury by awaiting the termination of the litigation.

The appeal in that case was dismissed for want of a final order. Other cases illustrating non-final orders vesting the title to land include Sennett v. Walker, 92 Ark. 607, 123 S.W. 769 (1909), and Brown v. Nowell, 88 Ark. 590, 115 S.W. 372 (1909). The correct appellate procedure was followed in Hargus v. Hayes, 83 Ark. 186, 103 S.W. 163 (1907), where the appeal from such a title-vesting order was delayed until a truly final decree was entered more than a year later.

In the case at bar the chancellor merely entered interlocutory orders deciding questions of law that were pertinent to the impending trial of the cases on their merits. Neither order disposed of the cases or purported to do so.

Appeal dismissed, without prejudice.

We agree.

Holt, Hickman and Howard, JJ.