author: Steele Hays, Justice.

text:
    Donnie Wayne DAWSON, et al. v. Roy GERRITSEN, M.D., et al.
    87-215
    748 S.W.2d 33
    Supreme Court of Arkansas
    Opinion delivered April 11, 1988

      Robert G. Gilder and Frank Morledge, for appellants and cross-appellees.

      Rieves & Mayton, by: TedMackall, Jr., for appellee Baptist Memorial Hospital, Forrest City, Inc.

      Friday, Eldredge & Clark, by: Calvin J. Gall, for appellee and cross-appellant Roy Gerritsen, M.D.
   Steele Hays, Justice.

This is a second appeal by Donovan Dawson involving claims arising from the death of Mary Francis Dawson. Mrs. Dawson died intestate on October 7,1983, the day after surgery was performed by Dr. Roy Gerritsen at Baptist Memorial Hospital, Forrest City. She was survived by her husband, Donovan Dawson, and by two minor sons, Donnie Wayne Dawson and Timothy Oliver, the latter from an earlier marriage. Mr. Dawson was appointed administrator of the estate and on October 1,1985, he filed a wrongful death action on behalf of the heirs against Dr. Gerritsen and Baptist Memorial Hospital. The complaint specifically included the causes of action of the minor sons of Mrs. Dawson.

The defendants moved to dismiss the complaint for failure to give sixty days notice in writing of an intent to sue, as required by Section 5 of Act 709 of 1979, codified as Ark. Code Ann. § 16-114-204 (1987) [Ark. Stat. Ann. § 34-2617 (Supp. 1985)]. Recognizing the omission, the administrator took a voluntary nonsuit on December 5, 1985, and a few days later filed an identical complaint, again omitting the notice requirement. When the complaint was again dismissed by the trial court for failure to give notice, Dawson appealed and we affirmed, rejecting Dawson’s contentions that the notice provision operated as a denial of due process, was special legislation, and that the complaint and summons received by the defendants in the first suit served as the written notice of an intention to sue the second time. See Dawson v. Gerritsen, 290 Ark. 499, 720 S.W.2d 714 (1986).

While the first case was under submission on appeal, another wrongful death action was filed on October 6, 1986, more than two years, but less than three years from the death of Mrs. Dawson. This is the case now before us on appeal. The action was brought on behalf of the minor sons by their fathers as next friend, by Donovan Dawson on behalf of Donnie Wayne, and by Elton Oliver on behalf of Timothy. It is undisputed that the written notice of intent to sue was given more than sixty days prior to the filing of the complaint in this case. Both defendants moved for summary judgment, which was granted, and the plaintiffs have appealed. We affirm the trial court.

Appellants contend that under Ark. Code Ann. § 16-56-116 (1987) [Ark. Stat. Ann. § 37-226 (Repl. 1962)] minors have three years after their disabilities are removed in which to bring an action for medical malpractice, that in Graham v. Cisco, 248 Ark. 6, 449 S.W.2d 949 (1980), we held that the cause of action by a minor for medical malpractice was extended by the savings clause contained in § 37-226, even though the period of limitations for bringing an action for medical malpractice generally was limited to two years under Ark. Stat. Ann. § 37-205 (Repl. 1962). However, appellants need not rely on § 37-226, as Section 4 of Act 709 [Ark. Code Ann. § 16-114-203 (1987)] contains its own savings clause, part of which gives minors until age nineteen in which to assert a claim for a medical injury.

Appellants maintain that this is a wrongful death claim rather than a medical injury and is, therefore, subject to the three year period of limitations applicable to wrongful death actions generally under Ark. Stat. Ann. §§ 27-906 and -907 (Repl. 1979), rather than to the two year period provided for in Section 4 of Act 709. That was the issue in Matthews v. Travelers Indemnity Insurance Co., 245 Ark. 247, 432 S.W.2d 485 (1968), where we held that causes of action inuring to the estate of a decedent were subject to the lesser period of two years provided for in § 37-205, but that causes of action for loss of consortium and mental anguish inuring to the next of kin were subject to the three year limitation provided in §§ 27-906 and -907. The appellees counter that contention by pointing out that Act 709 was enacted well after the Matthews case and provides that “all actions for medical injury shall be commenced within two years after the cause of action accrues,” that “the accrual of the cause of action shall be the date of the wrongful act complained of, and no other time,” language they interpret as requiring every cause of action for medical injury, including wrongful death, to be brought within two years.

We do not decide whether the legislature intended that actions for wrongful death resulting from medical malpractice be subject to Act 709, because it is clear that the claims of Donnie Wayne Dawson and Timothy Oliver, irrespective of their minority, may not be severed or split from the claims of the estate and next of kin when a personal representative has been appointed. That was precisely the issue in Reed v. Blevins, 222 Ark. 202, 258 S.W.2d 564 (1953). Anthony Reed was killed in a traffic accident in Nevada County, Arkansas where his parents lived. An administrator was appointed and a wrongful death action was brought, the complaint alleging that Reed’s next of kin were his parents. There was no mention of a wife and minor child residing in California, whose existence was not even known to the administrator. The case was tried, a judgment of $2,500 was awarded the plaintiff against the defendant, and the money was distributed to the parents. When the spouse and minor child brought an action of their own, the trial court sustained the defendant’s plea of res judicata and we affirmed, holding that under the language of Ark. Code Ann. § 16-62-102(2) (b) (1987) [Ark. Stat. Ann. § 27-907 (Supp. 1985)], when a personal representative is appointed, that individual is “the only person” who can maintain an action for wrongful death, citing St. Louis-San Francisco Ry. Co. v. Garner, 76 Ark. 555, 89 S.W. 550 (1905), Davis v. Railway Co., 53 Ark. 117, 13 S.W. 801 (1890); St. Louis-San Francisco Ry. Co. v. Crick, 182 Ark. 312, 32 S.W.2d 815 (1930). And see Waldrip v. McGarity, 270 Ark. 305, 605 S.W.2d 5 (1980).

Appellants frankly concede the holding of Reed v. Blevins is adverse to their contention, but they point to the well reasoned dissent of Justice George Rose Smith in the Blevins case. Admittedly, it advances sound reasons for a different result, but the fact is the opposing view prevailed and time has not weakened it. The rule is now deeply rooted in our law. Maryland Casualty Company v. Rowe, 256 Ark. 221, 506 S.W.2d 569 (1974); Matthews v. Travelers Indemnity Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968); Dukes v. Dukes, 233 Ark. 850, 349 S.W.2d 339 (1961).

To uphold the appellant’s arguments in this case would require that we split appellants’ causes of action from those of the estate and other next of kin brought by the personal representative, which we have consistently refused to do where a multiplicity of suits would be the result. Lisenby v. Farm Bureau Mutual Insurance Company of Arkansas, 245 Ark. 144, 431 S.W.2d 484 (1968):

Needless to say, the rule against the splitting of a single cause of action is intended to keep defendants from being harassed by a multiplicity of suits and to lighten the already overcrowded dockets of the trial courts. In finding the existence of a single cause of action, we have placed some emphasis upon the fact that the several claims arise from a single transaction, [citations omitted] In the case at bar we are firmly of the view that the fire created only one cause of action and the plaintiffs ought not to be permitted to subdivide that cause of action, thereby burdening the defendant and the courts with a waste of time and expense that attends a needless jury trial. [Id. at 146].

Appellants also cite us to Darnell v. Lea, 162 Ark. 516, 258 S.W. 363 (1924). There we held a plaintiff was not barred from suing a man who had allegedly seduced and debauched her at age sixteen, even though an earlier suit by her guardian had been dismissed. The cases are distinguishable. The cause of action for seduction was in no sense derivative, as may be said of the cause of action bestowed under the wrongful death statutes, but arose from a tort committed directly against the person of the plaintiff. Too, the suit by the guardian was dismissed for failure to prosecute and was not res judicata as to the cause of action.

Here, when the second action was dismissed for failure to give written notice of an intention to sue, an earlier identical action having been dismissed on plaintiffs motion for a nonsuit, the second dismissal operated as an adjudication on the merits. Arkansas Rules of Civil Procedure, Rule 41.

By cross-appeal, counsel for the appellees' seek to recover fees and expenses under Section 8 of Act 709, which provides for the recovery of reasonable costs in any action to recover for medical injury wherein the claims or defense are baseless, that is, “intentionally made without reasonable cause and found to be untrue.” The trial court considered appellees’ requests for a recovery under this section and took the position the claims were not baseless. Considering the circumstances in their entirety we cannot conclude that was error. The provision in Act 709 requiring sixty days notice in writing of an intent to sue raises significant due process questions and is manifestly harsh. While we have upheld it, Jackson v. Ozment, 283 Ark. 100, 671 S.W.2d 736 (1984), we have also noted our reservations. Dawson v. Gerritsen, supra. Suffice it to say at this juncture that the appellants are not to be further penalized for attempting to escape from an obvious hardship, the equal of which may not exist elsewhere in the law.

AFFIRMED.


source: Caselaw Access Project

author: Tom Glaze, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Jack YARBROUGH v. Diana YARBROUGH
    87-141
    748 S.W.2d 123
    Supreme Court of Arkansas
    Opinion delivered April 11, 1988

      James P. Clouette, for appellant.
    No brief filed for appellee.
   Tom Glaze, Justice.

This case emanates from a divorce action in which the appellant had Leen ordered to make monthly child support payments. Appellant allegedly became delinquent in his payments, and the trial court issued a court order for him to appear and show cause why he should not be held in contempt. During his attempt to serve this order, Doyne Ball, a process server, was attacked and beaten by appellant. Appellant’s actions resulted in the trial court’s setting a hearing to determine if appellant was in criminal contempt of court. At the end of that hearing, the court found the appellant guilty and sentenced him to six months imprisonment and a fine of $100.00. We affirm.

In reviewing cases of criminal contempt, we view the record in the light most favorable to the trial judge’s decision and sustain that decision if supported by substantial evidence. Rowell v. State, 278 Ark. 217, 644 S.W.2d 596 (1983); Dennison v. Mobley, Chancellor, 257 Ark. 216, 515 S.W.2d 215 (1974).

The record clearly reflects that the appellant attacked and assaulted Mr. Ball. In fact, Mr. Larry Sims was an eyewitness to the assault, and testified that he observed the appellant pursue and strike Ball. A police officer testified that he arrived moments after the incident to find Ball appearing disheveled and bleeding and attempting to serve “some type of subpoena” on the appellant. Although appellant does not dispute that he struck Ball, he argues that he was not in contempt because his action did not constitute disobedience of process. Appellant further claims that, even if he were in contempt, the applicable statutory law limits the sentence that can be imposed to a maximum of ten days in jail and a fine of $50.00.

Appellant relies upon Ark. Code Ann. § 16-10-108 (1987) which sets forth the powers of the court in punishing criminal contempt. He particularly refers to subsection (a)(3) which provides that the court may punish “willful disobedience of any process or order lawfully issued or made by it,” and to subsection (b)(1) which provides for a maximum of ten days imprisonment and a fine of $50.00.

This court, however, has interpreted the foregoing statutory provisions and has held they are not a limitation on the power of the court to inflict punishment for disobedience of process. Morrow v. Roberts, Judge, 250 Ark. 822, 467 S.W.2d 393 (1971). Stated mother terms, this court, citing Article 7, § 26 of the Arkansas Constitution, held the Legislature cannot abridge the power of the courts to punish for contempt in disobedience of their process; the Constitution specially reserved this inherent power in the courts, when delegating authority to the Legislature to regulate punishments for contempts. Spight v. State, 155 Ark. 26, 243 S.W. 860 (1922); Ford v. State, 69 Ark. 550, 64 S.W. 879 (1901). Also relevant to the present case, we point out that, in Bryan v. State, 99 Ark. 163, 137 S.W. 561 (1911), this court held that a person’s resistance of process, or evasion or circumvention of an officer in the service of process, where it is sufficient to amount to contempt of court, is disobedience of process, and therefore falls within the language of the constitution, which in effect forbids regulation by the Legislature. See also Spight, 155 Ark. 26, 243 S.W. 860.

Here, appellant clearly resisted Ball’s efforts to serve the trial court’s order on him, and did so by conduct that could be characterized not only as willful, but also as criminal in nature. Because the appellant acted in willful disobedience of the court’s process or order, the trial court, according to well-established law, was not limited to those penalties prescribed by § 16-10-108.

Finally, appellant contends that the sentence imposed by the trial court constitutes cruel and unusual punishment. That argument, however, was not raised below, and, therefore, we are unable to consider it for the first time on appeal. See, e.g., Boatman v. Dawkins, 294 Ark. 421, 743 S.W.2d 800 (1988).

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This court never ceases to amaze me, especially in matters of chancery. Now it has conferred jurisdiction to try criminal cases upon chancellors. In the process it points out that a state statute is ineffective in restricting the contempt powers of chancellors and this court. At the same time the majority opinion ignores the United States Constitutional provisions concerning due process and double jeopardy.

Without doubt the record reveals that the appellant violated a criminal law when he attacked Doyne Ball and is most probably liable for civil damages. However, he has been or will be tried on criminal charges and may or may not be sued for damages. That is up to the victim. As disgusting as appellant’s action may appear, he is still entitled to due process and equal protection of the law.

Punishment for indirect contempt is a matter for the General Assembly to define. Article 7, Section 26, of the Constitution of Arkansas states:

The General Assembly shall have power to regulate by law the punishments of contempts not committed in the presence or hearing of the courts, or in disobedience of process.

The General Assembly has enacted legislation presently codified at Ark. Code Ann. § 16-10-108 (1987). This section of the code defines contempt which is within the inherent discretion of the courts. The statute also defines acts constituting contempt committed outside the presence and hearing of the court and in disobedience of process. Pursuant to Article 7, Section 26 of the Constitution the General Assembly is granted such authority. The various provisions in § 16-10-108 clearly stand alone and are severable. Therefore, we are bound to give effect to those sections which were lawfully enacted. Contempts committed outside the presence of the court, or which do not interrupt its proceedings or impair its respect, are limited by the Constitution to punishment established by law. In this case punishment has been limited by the legislature to a fine of no more than $50 and imprisonment of no more than ten (10) days.

Punishment for contempt committed in the “presence or hearing” of the court is inherent and is specifically reserved to the courts. However, the General Assembly is specifically authorized by the Constitution to regulate punishment for contempt committed outside the presence and hearing of the courts and in disobedience of process.

The assault on Mr. Ball clearly was not in the presence or hearing of the court. Therefore, it is a matter which the General Assembly has the power to regulate by law. The offensive conduct here arose out of an attempt by the process server to serve an order of the trial court upon the appellant. The chancellor found the appellant guilty of “interfering with a person authorized to serve papers, orders and process of the court by attacking and beating Doyne Ball who had served or was serving an order of the court and making return of service thereon.”

The “process” Ball was serving was an order for appellant to appear at a “show cause” hearing. The appellant appeared as ordered. Therefore, he was not in disobedience of this order nor was he in violation of any other order revealed by the record. He apparently became enraged when he was served and assaulted the process server. The assault occurred nowhere near the court. His action constituted a violation of criminal law and subjected him to civil liability. The additional punishment by the chancellor in the form of jail time and a fine clearly violates the constitutional prohibition against multiple punishments for the same offense. Two punishments for the identical act is simply not tolerated under the Constitution.

The majority cites several cases in support of its opinion. However, I find none of them on point. In Morrow v. Roberts, Judge, 250 Ark. 822, 467 S.W.2d 393 (1971), the trial court held Morrow in contempt for failing to obey a subpoena to appear, and separately for failure to get a hair cut. This court affirmed the failure to obey but reversed his conviction for refusal to get his hair cut. Morrow’s failure to obey the subpoena was a refusal to obey the order of the court. Spight v. State, 155 Ark. 26, 243 S.W. 860 (1922), involved a contempt citation by the grand jury against Spight for hiding when the sheriff was trying to serve him with a subpoena to testify before the grand jury. Bryan v. State, 99 Ark. 163, 137 S.W. 561 (1911), also was based upon disobedience of process.

No reference is made by the majority to any of the leading cases concerning contempt. In Freeman v. State, 188 Ark. 1058, 69 S.W.2d 267 (1934), this court extensively reviewed prior contempt cases and reversed the trial court’s finding of contempt for activities committed out of the presence or hearing of the court; in Edwards v. Jameson, Judge, 284 Ark. 60, 679 S.W.2d 195 (1984), we reversed a contempt of court conviction based upon a disturbance outside the courtroom because there was no reflection upon the integrity of the court and no disturbance of its proceedings; in Clark v. State, 287 Ark. 221, 697 S.W.2d 895 (1985), this court, speaking of criminal contempt, stated: “[t]his is a problem the legislature needs to address as we are confined to the resolution of specific issues and it is not the function of this court to promulgate guidelines and rules for criminal contempt charges.”

Similarly in Clark v. State, 291 Ark. 405, 725 S.W.2d 550 (1987), we thoroughly reviewed our decisions in matters relating to contempt of court. In Clark II the appellant filed a motion requesting the trial court to recuse. The motion was baseless and accused the judge of criminal misconduct. The trial judge was not aware that the scurrilous motion had been filed until some time later when he ordered Clark to show cause why he should not be held in contempt. The court convicted Clark of criminal contempt and we reversed on the ground that the judge should have recused.

Upon retrial before another judge, Clark was again found guilty of criminal contempt for filing the motion accusing the first judge of being a crook. We again reversed because the facts of the case were insufficient to form the basis for a contempt conviction. The thrust of our holding in Clark II was that the motion was not presented in a manner as to be “disruptive of proceedings before the court or in such a way as to incite disruption or disrespect for the court by others.” Therefore, such acts did not constitute contempt.

The Clark II opinion cited with approval language from In Re Larry Little, 404 U.S. 553 (1972), as follows:

There is no indication, and the State does not argue, that petitioner’s statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding. Therefore, “the vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil . . . . [T]he law of contempt is not made for the protection of judges who may be sensitive to the winds of public opinion. Judges are supposed to be men of fortitude, able to thrive in a hardy climate.” Craig v. Harney, 331 U.S. 367, 376 (1947). “Trial courts. . .must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice.” Brown v. United States, 356 U.S. 148, 153 (1958).
The reversal of this conviction is necessarily required under our holding in Holt v. Virginia, 381 U.S. 131 (1965). There attorneys filed motions that the trial judge recuse himself and for a change of venue, alleging that the judge was biased. The motion for change of venue alleged that the judge intimidated and harassed the attorneys’ client. The court adjudged the attorneys in contempt for filing these motions. We reversed for reasons also applicable here:
“It is not charged that petitioners here disobeyed any valid court order, talked loudly, acted boisterously, or attempted to prevent the judge or any other officer of the court from carrying on his court duties. Their convictions rest on nothing whatever except allegations made in motions for change of venue and disqualification of Judge Holladay because of alleged bias on his part.” Id. at 136 [404 U.S. at 555-556]

The Clark //opinion, after carefully examining all our prior cases on contempt and many of the decisions of the United States Supreme Court, concluded that even those justices constituting the majority would have affirmed “had there been any disruption or open insult or degrading comment whatsoever accompanying the filing of the motion.”

It is my opinion that the majority in this case takes a step backward and that this decision is a knee-jerk reaction to a criminal assault which in no manner disrupted court proceedings or reflected on the integrity of the court. Such matters should be left to the discretion of the victim and the criminal and civil courts. Further, by the express terms of the Arkansas Constitution, it is the General Assembly that has the power to regulate contempts committed outside the presence or hearing of the courts. It has done so. The conduct of appellant in this case is not in violation of the statute.

I would reverse and dismiss.

       We note that a person may demand a jury trial in a criminal contempt proceeding when the possible imprisonment may exceed six months. Taylor v. Hayes, 418 U.S. 488 (1974); Edwards v. Jameson, 283 Ark. 395, 677 S.W.2d 842 (1984).


author: Robert H. Dudley, Justice.

text:
    Sanders McDaniel CARTER v. STATE of Arkansas
    CR 87-209
    748 S.W.2d 127
    Supreme Court of Arkansas
    Opinion delivered April 18, 1988

      William R. Simpson, Jr., Public Defender, Steff Padilla, Deputy Public Defender, by: Llewellyn J. Marczuk, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

On November 18, 1986, a criminal committed the felonies of rape and aggravated robbery of the prosecutrix and the burglary of her home. During the forty to forty-five minute ordeal, the criminal, who had entered the home through a kitchen window off a deck, threatened to kill the prosecutrix with a knife, and also told her that if she called the police he would come back at a later time and slit her throat. In spite of his threat, she called the police, reported the crimes, and gave a description of the criminal. One night about a month and one-half later, on January 4,1987, she heard someone on the deck and saw a man pass by the window. She called the police and they immediately caught the appellant on the deck. Later that day, and again at trial, she identified the appellant as the person who had committed the earlier rape, aggravated robbery, and burglary. The appellant was charged with those three felonies and was also charged with the later attempted burglary. The attempted burglary charge was severed and later dismissed. Appellant was convicted of the three felonies. We affirm the convictions.

Before trial the appellant made a motion to exclude the evidence about the later attempted burglary under A.R.E. Rule 404(b), and, at trial, repeatedly objected to the introduction of the evidence. The trial judge admitted the evidence, and the appellant contends the rulings were erroneous. The argument is without merit.

A.R.E. Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Under A.R.E. Rules 404(b), quoted above, and 403, the weighing rule, evidence of other crimes will be admitted only if (1) it has independent relevance and (2) its relevance is not substantially outweighed by the danger of unfair prejudice. Price v. State, 268 Ark. 535, 539, 597 S.W.2d 598, 600 (1980).

As to the first requirement, independent relevance, this means that the evidence must be “ ‘relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal.’ ” Id. at 538, 597 S.W.2d at 599 (quoting Alford v. State, 223 Ark. 330, 334, 266 S.W.2d 804, 806 (1954)). Here, the evidence was admissible to show identity. The return to the original crime scene, perhaps to make good his threat to slit the prosecutrix’s throat for having called the police, tends to establish that he was the same person who committed the earlier felonies.

As to the second requirement, that the probative value not be substantially outweighed by the danger of unfair prejudice, this is a balance we accord the trial judge “wide discretion in deciding, and he will not be reversed on appeal unless he has abused such discretion.” Id. at 539, 597 S.W.2d at 600. Here, the identity of the person who committed the three felonies was the key issue. The prosecutrix identified the appellant as the person who broke into her home and raped and robbed her. The defense then cross-examined the prosecutrix and attempted to show that her identification of the defendant was flawed. In addition, the defendant’s mother strongly implied that the prosecutrix was mistaken in identifying the defendant because she, the mother, testified that the defendant was at home on the night the crimes were committed. The probative value of the evidence went to identification, and we cannot say the trial judge abused his wide discretion in deciding that the probative value was not substantially outweighed by the danger of unfair prejudice.

The appellant next argues that the evidence was insufficient to support his conviction for aggravated robbery. “Aggravated robbery” is defined as follows:

(1) A person commits aggravated robbery if he commits robbery as defined in Section 2103 of Act 280 of 1975 (Arkansas Statutes Annotated 41-2103) and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person.

Ark. Stat. Ann. § 41-2102(1) (Supp. 1985) [now codified with minor stylistic changes at Ark. Code Ann. § 5-12-103 (1987)].

“Robbery,” a necessary element of aggravated robbery, was defined at the time of the crime as follows:

(1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

Ark. Stat. Ann. § 41-2103 (Repl. 1977) (amended in 1987 to add the words “felony or misdemeanor” before the word “theft”) [amended version appears at Ark. Code Ann. § 5-12-102 (Supp. 1987)].

“Physical force” is defined as “any bodily impact, restraint, or confinement, or threat thereof.” Ark. Stat. Ann. § 41-2101 (Repl. 1977) [now codified with minor stylistic changes at Ark. Code Ann. § 5-12-101 (1987)].

The appellant argues that physical force was used to commit the rape, but after that was over, no physical force was used to commit the robbery.

On appeal, we view the evidence in the light most favorable to the appellee and affirm if there is substantial evidence to support the jury finding, and “ ‘[substantial evidence’ means that the jury could have reached its conclusion without having to resort to speculation or conjecture.” Osborne v. State, 278 Ark. 45, 53, 643 S.W.2d 251, 254 (1982). Here, there was substantial evidence for the jury to reach its verdict. The prosecutrix testified that the appellant threatened her with a knife, repeatedly beat her, and told her he would kill her if she did not do what he said. She believed his threat was genuine. When he was going through her purse for money, she thought he would start hitting her again. The testimony constituted very substantial evidence that there was an immediate threat of death or serious physical injury to the prosecutrix, at least until she surrendered her money.

Pursuant to Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals, we state that we find no errors prejudicial to the appellant, who was sentenced to life imprisonment on the rape conviction in this case.

Affirmed.


text:
    ARKANSAS CONTRACTORS LICENSING BOARD v. BUTLER CONSTRUCTION CO., Inc. of Barling, Arkansas
    87-333
    748 S.W.2d 129
    Supreme Court of Arkansas
    Opinion delivered April 18, 1988

      Steve Clark, Att’y Gen., by: Rick D. Hogan, Asst. Att’y Gen., for appellant.

      Davidson, Horne, & Hollingsworth, A Professional Association, by: Cyril Hollingsworth for amicus curiae Arkansas Chapter of the Associated General Contractors of America, Inc.

      Walters Law Firm, by: Bill Walters, for appellee.
   Steele Hays, Justice.

The issue is whether appellee Butler Construction Co., Inc. was required by law to have a contractor’s license before constructing a dental clinic for Dr. Robert Ward. The Arkansas Contractors Licensing Board, after a hearing, determined that Butler had undertaken to erect the clinic without a contractor’s license, in violation of Act 150 of 1965, codified as Ark. Code Ann. §§ 17-22-101 et seq. (1987) [Ark. Stat. Ann. §§ 71-701 et seq. (Supp. 1985)]. Butler was fined $2,960 and enjoined from performing any work in excess of $20,000 prior to being licensed as a contractor. Butler appealed to circuit court, where the Board was reversed upon findings that 1) because Butler received less than $20,000 for his supervision of the construction he was not subject to the act, 2) the Board’s Exhibit No. 5 was hearsay and should not have been considered, and 3) a witness for the Board was not sworn before testifying. The Board has appealed the order of the circuit court. We reverse.

I

The Board unanimously found that Butler was acting as a contractor within the meaning of Ark. Code Ann. § 17-22-101 (1987). That section defines a contractor as any person (including a corporation) who, for a fixed fee, undertakes to construct any building or other improvement (except single family residences), when the cost of the work to be done is $20,000 or more, including labor and materials. On appeal the circuit judge noted that Butler was to receive $ 15,000 for supervising the work and hence was not a contractor within the meaning of the act. That was clearly error.

When a decision of an administrative agency is appealed, a number of general rules of appellate review apply: the evidence is given its strongest probative force in favor of the ruling of the administrative agency. Arkansas Department of Human Services v. Simes, 281 Ark. 81, 661 S.W.2d 378 (1983); Franks v. Ammoco Chemical Co., 253 Ark. 120, 484 S.W.2d 689 (1972). The interpretation of a statute by an administrative agency, while not conclusive, is highly persuasive. Public Service Commission v. Allied Telephone Co., 274 Ark. 478, 625 S.W.2d 515 (1981). A court may not substitute its judgment for that of the administrative agency unless the decision of the agency is arbitrary and capricious. Green v. Carder, 282 Ark. 239, 667 S.W.2d 660 (1984).The construction of a statute by an administrative agency should not be overturned unless it is clearly wrong. Moore v. Tillman, 170 Ark. 895, 282 S.W. 9 (1926). A court may not reverse a decision of an administrative agency if there is any substantial evidence to support its decision. Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983); Arkansas Department of Human Services v. Sims, 281 Ark. 81, 661 S.W.2d 378 (1983).

The decision of the Contractors Licensing Board was, we believe, entirely consistent with the legislative intent behind Act 150. The figure of $20,000 used in the act, rather than being intended to apply simply to the fee or commission received by the contractor, is meant to apply to the cost of the project, including labor and materials. If the overall cost of the project equals or exceeds $20,000, a license is required under the Act. This, essentially, was our holding in Bird v. Pan Western Corp., 261 Ark. 56, 546 S.W.2d 417 (1977). Any other interpretation would sorely cripple the objective of this legislation. The building permit for this clinic authorized construction costing an estimated $125,000. The four bids submitted ranged from a low of $ 148, 932.24 (Butler’s bid) to a high of $ 182, 231.00. It is true that Mr. Butler testified that he submitted a bid simply as a courtesy to Dr. Ward, that he was merely to supervise the work and receive $15,000, irrespective of the bids. However, it is undisputed that this clinic was to cost in the range of $125,000 by Butler’s own estimate and there was evidence, though disputed, that it could cost as much as $148,000. Butler urges that he was working for a fixed fee, that he furnished no labor or materials, other than one employee, that all other labor and materials came directly from subcontractors. However, the Board unanimously rejected that concept of the arrangement and the contract itself between Dr. Ward and Butler effectively refutes that theory of the agreement in that Butler agreed to be responsible for obtaining all material and supplies and to provide all services in connection with the construction so as to provide the owner with a turnkey completion of the clinic.

II

Over Butler’s objection, a bid tabulation form was introduced which reflected four bids. Butler’s bid of $148,932.24 was low and Schriver & Son Construction Company’s bid of $ 182,231 was high. It appears the hearing examiner declared the exhibit inadmissible on grounds of hearsay, yet permitted it to become part of the record and the Board, Butler contends, considered it in reaching its decision. Even so, this was not a sufficient basis for reversal of the decision of the Board. The bid tabulation had little bearing on the outcome of the case, as the facts are not in any real dispute. The entire theory of appellee’s defense is based on a question of law. The only relevance of the bid tabulation was the amount of Butler’s “bid” of $148,000. But the cost of the project, whether $125,000 or $148,000, is immaterial to Butler’s defense, which is that irrespective of the overall cost, Butler’s fee was less than $20,000. The rules of evidence applicable to administrative proceedings are more relaxed, Evans v. Arkansas Racing Commission, 270 Ark. 788, 606 S.W.2d 578 (1980); Fisher v. Branscum, 243 Ark. 516, 420 S.W.2d 882 (1967). Besides, Butler testified to this same information without objection, hence, the bid tabulation was merely cumulative of other identical evidence.

HI

Another reason for the circuit court’s reversal of the Board was that a witness for the Board, Mr. Bill Mullinax, was not sworn before testifying. Granted, the record does not reflect either Mr. Mullinax or Mr. Butler being sworn before giving testimony at the hearing. There is no contention the witnesses were not sworn, only that the record does not affirmatively indicate that they were. Just how this became an issue before the circuit court is not clear; it is clear, however, that no one objected to Mr. Mullinax testifying without first being sworn and the omission, if it occurred, may not be raised on appeal unless it was preserved at the administrative hearing. Arkansas Cemetery Board v. Memorial Properties, Inc., 272 Ark. 172, 616 S.W.2d 713 (1981). Hennesey v. S.E.C., 285 F.2d 511 (3d Cir. 1960); Unemployment Commission v. Aragon, 329 U.S. 143 (1946).

Reversed and remanded with directions to enter an order consistent with this opinion.


text:
    Michael Anthony RONNING v. STATE of Arkansas
    CR 87-57
    748 S.W.2d 633
    Supreme Court of Arkansas
    Opinion delivered April 18, 1988
    [Rehearing denied May 16, 1988.]

      McDaniel & Wells, P.A., by: Phillip Wells, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Michael Ronning was convicted of the capital murder of Diana Lynn Hanley and sentencéd to life imprisonment without parole. On appeal Ronning raises twelve points. Finding no reversible error, we affirm the judgment.

In March of 1984 Diana Hanley and Darrell Meredith began living together in a house on Bridger Road in Jonesboro. Meredith was a house builder and in December, 1984 he was contacted at the job site by a man who wanted work and who identified himself as Michael Haroldson. Meredith didn’t need anyone, but Haroldson came back a week later, with his wife and baby in the car, pleading for work of any kind. Meredith put him to work on December 6. When another worker quit Meredith hired Larry Brown, and Haroldson and Brown drove to work together from Pocahontas in an old Plymouth automobile belonging to Haroldson. The car, a 1965 model, was cream colored, badly rusted, and emitted dense smoke from the exhaust.

On Friday, January 3, Haroldson and Brown came to Meredith’s house to be paid. Meredith had about $1,100 in cash in a lock box. Meredith asked the two men to wait outside while Diana retrieved the lock box from its hiding place and Meredith proceeded to pay them, Haroldson receiving $77. Meredith testified that he noticed Haroldson look at the money in the lock box several times and that he “got real quiet.”

On Monday Meredith got up at the usual time, had coffee with Diana and left for work about 7:20 a.m. Diana was wearing a red robe Meredith had given to her for Christmas. Meredith went straight to the job site where Brown was waiting for him. Haroldson did not show up for work that day.

When Meredith got home that evening Diana’s Corvette was in the driveway but she was not there. Her coat was still where she had left it the night before and her purse, cigarettes and billfold were beside the couch. There was no money in her purse. Meredith called several friends to see if they knew where Diana might be and when he was unable to locate her he became worried and called the sheriff. While waiting for a deputy to come he thought of the lock box and found that it was empty. It had contained seven $100 bills after he and Diana had withdrawn some of the money over the weekend. He later discovered that a large Bowie knife was missing from the kitchen.

Attention quickly focused on Michael Haroldson because of reports that a car matching the description of the Plymouth was seen in the driveway of Meredith’s home on the morning of Diana Hanley’s disappearance.

The Sheriff of Randolph County was contacted. He undertook an investigation and learned that Michael Haroldson was in fact Michael Ronning, and was wanted on burglary charges in Michigan. The Ronning home was watched and at 10:30 p.m. the Plymouth automobile was observed, though Ronning was not there. Ronning’s wife gave the officers the clothes Ronning had worn that day. Eventually a search of the area was begun and Ronning was found hiding in some shrubbery about seventy-five yards behind the house. He was taken into custody during the early hours of January 7, 1985.

On January 19 a trapper found the body of Diana Hanley. It was located a half mile off the O’Kean Cut-off road between Pocahontas and O’Kean, partially covered with branches. Diana Hanley’s throat had been cut by three stab wounds from a large knife. There were bruises to the left side of the jaw. Her garments, including the red robe, were up around her shoulders exposing the lower two-thirds of her torso. There were scratches and abrasions on her upper thighs. She had been bound at the hands and feet. In the opinion of the medical examiner she had been raped, though the lapse of time rendered that opinion conjectural.

I

THE COURT ERRED IN FAILING TO DISMISS THE INFORMATION AGAINST APPELLANT ON THE BASIS OF IMPROPER VENUE.

Michael Ronning was arrested in Randolph County, where the body of Diana Hanley was discovered. She was last seen alive in Craighead County, where the information was filed charging Ronning with burglary, kidnapping and murder.

Ronning cites Ark. Code Ann. § 16-88-109 (1987) [Ark. Stat. Ann. § 43-1417 (Repl. 1977)], providing that when two or more counties have jurisdiction of the same offense, the county in which the defendant is first arrested shall proceed to try the offense to the exclusion of the others. He also cites language from Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), to the effect that because the victim was kidnapped in Pulaski County and murdered in Lonoke County, venue was proper in the county where the murder occurred. Since Ronning was arrested in Randolph County and the murder presumably occurred in Randolph County, Ronning argues that a defense motion to transfer to Randolph County should have been granted.

We need not determine whether venue lay in Randolph County to the exclusion of Craighead County because before the motion to transfer was filed the defense asked for, and was granted, a change of venue. The case was transferred to Crittenden County where the trial was held. It was not error for the court to refuse a second request for a venue change. Ark. Code Ann. § 16-88-203 (1987) [Ark. Stat. Ann. § 43-1518 (Repl. 1977)].

II

THE COURT ERRED IN FAILING TO GRANT A MISTRIAL WHEN SHERIFF JOHNSON TESTIFIED THAT THE APPELLANT WAS BEING HELD ON MICHIGAN CHARGES.

During the prosecutor’s interrogation of Craighead Sheriff Floyd Johnson, Johnson spoke of conversations with Ronning as to the possibility of Ronning being released on bond. He was asked, “And most of those questions related to his getting out on bond?” Answer: “Yes sir. He told me that — when I informed him that we would probably hold him on a burglary charge based on the information that we had at that point — he told me that he wasn’t too concerned about the charges in Michigan and he wasn’t too concerned about the burglary.”

The answer prompted a motion for a mistrial which the trial court denied. Appellant points to Rule 404(b) of the Arkansas Rules of Evidence which excludes evidence of other crimes to show the character of a defendant in order to prove the defendant acted in conformity therewith. Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). However, it seems clear the reference to Michigan charges, the nature of which were not disclosed, was not deliberately prompted by the question and the trial court’s admonition to the jury to disregard the remark was a sufficient handling of the incident. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985).

Ill

THE COURT ERRED IN FAILING TO GRANT A MISTRIAL IN THAT ONE OF THE JURORS STATED IN OPEN COURT THAT HE WAS HARD OF HEARING AND THERE WERE “SKIPS” IN HIS HEARING THE TESTIMONY.

During the state’s closing argument in rebuttal one of the jurors asked counsel to speak up and expressed some difficulty in hearing the arguments, resulting in this exchange:

The Court: Were you able to hear the evidence presented in this case?
Juror: Yes.
The Court: You didn’t have trouble with the evidence — the testimony you heard?
Juror: There were some skips.
The Court: Do you feel that you heard all the testimony?
Juror: Right.

Appellant moved for a mistrial, which was denied, and on appeal cites case law that a juror who is physically unfit to discharge the duties of a juror, or who is incapable of hearing the testimony, is not qualified. Commonwealth v. Brown, 231 Pa. Super. 431, 332 A.2d 828 (1974); State v. Reed, 10 So. 2d 28 (La. 1944); Bell v. O’Connor Transport, Limited, 94 Idaho 406, 489 P.2d 439 (1971). Appellant submits that a trial should not only be fair, but should have the appearance of fairness as well. Henslee v. State, 251 Ark. 125, 471 S.W.2d 352 (1971).

While we do not dispute the authority for this point, we disagree that the fairness of the trial, or its appearance, was undermined by this development. We find no significant inability by the juror to hear the testimony. He acknowledged some “skips” but he maintained he had heard all the testimony. Without more, we cannot conclude that the trial court’s broad discretion to act upon mistrial motions was improperly exercised by refusing to abort the trial. Combs v. State, 270 Ark. 496, 606 S.W.2d 61 (1986).

IV

THE CONVICTION OF THE APPELLANT SHOULD BE REVERSED DUE TO NUMEROUS REFERENCES MADE BY THE PROSECUTING ATTORNEY IN HIS CLOSING ARGUMENT OF THE APPELLANT’S FAILURE TO TESTIFY.

Appellant cites a number of instances in closing argument when the prosecutor allegedly violated the principle established by Griffin v. California, 380 U.S. 609 (1965), that the decision of a defendant not to testify in his own behalf may not be argued as evidence of guilt. We will not report all the rather lengthy excerpts relied on, as we find only one objection to these remarks and that was on a wholly different basis than now argued.

We quote from the record, p. 1055:

They not only did that with this place of business that Victoria Ronning had told them this defendant had been at, but they also checked out other coffee shops and truck stops to see if they could find anyone who saw this defendant drinking coffee or served him coffee or saw him getting his car boosted or having trouble with his car, and they were unable to elicit any person that could come before you and say that he was there like he told Victoria Ronning he was. Now why was he lying about that? Why do you lie if the truth won’t hurt you?

[Defense Counsel]:

Your honor, I’m going to have to object as far as he’s saying that he’s lying. It’s not been proven through any kind of testimony that he was lying.

[Prosecutor]:

Your Honor, this is closing argument.

[Defense Counsel]:

I understand this is closing argument, but I think he’s gone a little too far in saying that he’s lying.

[The Court]:

Ladies and gentlemen, the Court will instruct you — as I’ve previously done — that opening statements, remarks during the trial and closing arguments of the attorneys are not evidence but are made only to help you in understanding the evidence and applicable law. Any arguments, statements or remarks of the attorneys having no basis in the evidence should be disregarded by you.
Gentlemen, you’re permitted to argue any reasonable inferences from what’s been received in evidence.
Ladies and gentlemen of the jury, it will be for you to determine what has been received in evidence and your recollection of the evidence. Alright, you may continue.

The objection, clearly, was to the prosecutor’s argument that Michael Ronning was lying when he told his wife he was at the 76 Truckstop at the time of Diana Hanley’s disappearance. There was no objection based on the defendant’s failure to testify in his own behalf. In hundreds of cases we have repeated the fundamental rule that an argument for reversal will not be considered in the absence of an appropriate objection in the trial court. Perry v. State, 211 Ark. 357, 642 S.W.2d 865 (1982); Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

V

THERE WAS NOT SUBSTANTIAL EVIDENCE OF RECORD TO SUPPORT THE VERDICT OF GUILTY RETURNED BY THE JURY.

Appellant submits the evidence of guilt was insufficient to support the verdict. Noting that the proof was entirely circumstantial, he asserts the evidence must be consistent with the guilt of the accused and inconsistent with any other reasonable hypothesis. Ward v. State, 6 Ark. App. 349, 642 S.W.2d 328 (1982). However, this standard for weighing the evidence is addressed to the jury, as on appeal we view the evidence only to determine whether there is substantial evidence to support the verdict. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).

We reject the contention that there was no substantial evidence of guilt. The evidence, viewed in the light most favorable to the state and with all reasonable inferences consistent therewith, fully supports the verdict. The circumstances which point in that direction are these: On Friday afternoon when he paid Brown and Ronning, Meredith noticed Ronning’s interest in the cash in the lock box and that Ronning got very quiet as he observed it. On Monday morning Meredith expected to find Ronning at work but Ronning failed to appear at the job throughout the day. There is evidence that Victoria Ronning, too, thought Ronning was going to work on Monday when he left the house. Numerous witnesses testified to the fact that a vehicle matching Ronning’s automobile, which was conspicuous for several reasons, was seen in the driveway at the Meredith residence from about 8:15 a.m. until as late as 10:30 or 11:00. Kenneth Ray Brewer saw the car at about 8:10 and noticed a person beside the car. He had the “impression” it was a man. Floyd Stonecipher passed the Meredith house between 7:45 and 8:00 a.m. and saw an old, rusty white car of Chrysler make with a Michigan license plate. The Corvette was also in the drive. Gary Keyser saw the car as described about 8:00 o’clock that morning. Steve Tyler saw the car around 8:00 and noticed that it did not have an Arkansas license plate. When he came back by between 10:30 and 11:00 he did not see the car. Kathy Hall testified that as she was going to work on that morning at “shortly after ten,” no later than 10:20, a car pulled onto Hwy. 49 from Bridger Road which startled her because it did not stop. The car was old, with rust spots, and smoked rather badly. The car she saw resembled a photograph of the Ronning car and contained two people. One neighbor, Mr. Riley Futrell, testified he saw the car in the drive between 12:00 and 12:30, which is later, by perhaps an hour or more, than the other witnesses. However, inconsistencies in the testimony are matters for the jury.

Mary Meyer testified that as she drove from Jonesboro to Brookland that morning around 10:15 a car meeting her swerved unexpectedly toward her and attracted her attention. A man was driving with a woman passenger. As the cars passed she had direct eye contact with the woman, who looked “scared to death.” The car matched the Ronning vehicle and had out of state tags. The witness was vaguely aware of a laundry basket in the backseat with something red draped over it. She identified Michael Ronning as the driver and was “75 % sure” the passenger was Diana Hanley. Harry Gordon testified that on January 6 he took his wife to work at the Black River Vo-Tech. Sometime between 10:15 and 10:45 he saw Michael Ronning with a female passenger headed toward the O’Kean Cut-off.

There was proof that some of the fibers from the red robe were on the floor of the Ronning vehicle and two such fibers were recovered from the jeans worn that day by Michael Ronning. There was also proof that Ronning was familiar with the O’Kean Cut-off. Doyle Bruce testified that he operated a furniture and vehicle upholstery shop in Pocahontas and Victoria Ronning worked for him. He said that on the morning of January 6 Michael Ronning came to the shop a few minutes before 11:30, that Victoria was surprised to see him and asked him why he wasn’t working. Michael told her he had had car trouble, that he had stopped at the 76 Truckstop in Walnut Ridge for coffee. There was testimony from investigating officers that none of the employees at the 76 Truckstop could identify Michael Ronning as having been there the morning of January 6.

Other pertinent circumstances included evidence that on Friday evening Ronning took his tools from Meredith’s truck where he ordinarily left them; that a pair of gloves was found in the Ronning vehicle after it was impounded, though Ronning never used gloves at work and had once refused Meredith’s offer to furnish him with a pair; that while Ronning was in jail before the discovery of Diana Hanley’s body Mrs. Ronning talked to him in the presence of Officer Dickie Howell. Officer Howell said Mrs. Ronning told Michael that the police knew he had not gotten the money by forging a check, as he had said, and the police wanted to know where he got the money. Howell said Ronning became upset and said, “Shut-up, you son of a bitch, about that extra money I had. Don’t you tell anybody about the money.” Mrs. Ronning began to cry and left. Officers tried unsuccessfully to subpoena Mrs. Ronning for trial but were unable to locate her although two officers had gone to Dallas in an attempt to find her.

Two final circumstances are consistent with guilt: The testimony of Sheriff Johnson that while in custody and after having been given the Miranda warnings Ronning told him that he might be able to help the sheriff on the burglary but that he could not help with locating the woman; and the fact that Ronning attempted to hide when the police began looking for him. As might be expected, there were circumstances pointing toward other possibilities, but in determining the sufficiency of the evidence we do not weigh evidence on one side against the other, we simply determine whether the evidence in support of the verdict is substantial. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987).

VI

THE COURT ERRED IN RULING THAT AN IN CUSTODY STATEMENT MADE BY THE APPELLANT QUALIFIED AS EITHER A CONFESSION OR A DECLARATION AGAINST INTEREST, AND THEREFORE ADMISSIBLE IN EVIDENCE AT TRIAL.

VII

THE COURT ERRED IN ADMITTING THE STATEMENT MADE BY THE APPELLANT TO SHERIFF JOHNSON IN THAT AFTER APPELLANT REQUESTED TO HAVE AN ATTORNEY APPOINTED, ALL QUESTIONING BY SHERIFF JOHNSON SHOULD HAVE CEASED.

Points VI and VII are closely related and will be considered together. By pretrial motion appellant asked the trial court to rule that the state could not introduce either as a confession or as a declaration against interest a remark attributed to Ronning by Sheriff Floyd Johnson, that Ronning told the sheriff he could possibly help him with the burglary, but could not help in locating Diana Hanley.

Appellant argues that the remarks, even if made, constitute neither a confession, nor an admission against interest. He points out that a confession is an admission of guilt [Workman v. State, 267 Ark. 103, 589 S.W.2d 20 (1979)], which this is not, and a declaration against interest is one which is contrary to the pecuniary or proprietary interest of the declarant and, hence, admissible as an exception to the hearsay rule. A.R.E. Rule 804(b)(3). But it is not necessary that the admissibility of the remarks rest on one or the other of these categories, but on whether they are relevant and were intelligently made pursuant to the Miranda warnings, that is, with an awareness by the declarant that the remarks could be used as evidence. As to their relevancy, that involves the trial court’s discretion, and it hardly taxes the concept of relevancy to point out that for Ronning to profess some knowledge concerning a burglary of the Meredith dwelling, which coincided with the disappearance of Diana Hanley, is a circumstance bearing on the probability that Ronning was involved in her disappearance and murder. A.R.E. Rules 401 and 402. As to the Miranda warnings, no serious argument can be made that they were not given Michael Ronning. Officer Howell testified that he twice administered the Miranda warnings and Ronning acknowledged in writing that he understood the warnings. Ronning did not dispute this testimony and acknowledged that he understood his rights.

Turning to the other point, No. VII, Ronning contends Sheriff Johnson ignored the doctrine of Edwards v. Arizona, 451 U.S. 477 (1981), by continuing to question him after Ronning had invoked his sixth amendment right to counsel. But the express finding of the trial court was that Ronning’s remarks came in the course of a conversation which Ronning initiated and following a statement, rather than a question, from Johnson. The abstract of the suppression verifies this finding by quoting Ronning’s testimony verbatim: “Yes, my statement about being able to help was a response to his question. This was toward the end of the conversation. It was a response to a statement of his, I guess, not a question.'’’’ [Our italics.]

VIII

THE COURT ERRED IN FAILING TO GRANT APPELLANT PERMISSION TO HAVE CERTAIN PHYSICAL EVIDENCE BY APPELLANT’S EXPERT WITNESS PRIOR TO TRIAL.

Appellant maintains that by pretrial motion he asked that the red fibers recovered from Ronning’s gloves, blue jeans and car be sent to Dr. Irving Stone of Dallas, Texas, employed by the defense for scientific analysis, but the state objected on grounds the fibers might be lost. Appellant concedes the trial court ordered the state crime lab to make the fibers available to the defense but since appellant lacked the funds to bring Dr. Stone to Little Rock, he urges the trial court should have ordered the fibers delivered for analysis. The record indicates, however, that “numerous fibers” were mailed to Dr. Stone for examination, while others (presumably the two recovered from the blue jeans) were not, but were available at all times for inspection by the defense. We cannot say the trial court’s broad discretion over such matters was abused by this handling of the issue.

IX

THE CONVICTION OF THE APPELLANT SHOULD BE REVERSED DUE TO IMPROPER COMMENTS MADE BY THE PROSECUTING ATTORNEY CONCERNING THE ABSENCE AT TRIAL OF APPELLANT’S WIFE, VICTORIA RONNING.

Appellant advances the argument that prejudicial error occurred during closing argument when the prosecutor told the jury:

You heard the testimony about Victoria Ronning. You heard Officer Howell testify about trying to find her, trying to get her subpoenaed to bring her into court, and you heard him say that he even went to Dallas, Texas, to try to find her, but to no avail. And what does that tell you, inferentially? (R. 1054).

However, the remarks were not objected to and, therefore, the allegation of error may not be argued on appeal. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).

X

THE CONVICTION OF THE APPELLANT SHOULD BE REVERSED BASED ON COMMENTS MADE BY THE PROSECUTING ATTORNEY THAT WERE INTENDED TO INFLAME THE JURY AGAINST APPELLANT.

At separate points in closing argument counsel for the state made these comments:

I think what you are talking about here is a psychopathic killer, and these people, they feel no remorse, they feel no pain of conscience.
And realize that if you are wrong, you are going to turn a psychopathic killer loose.
Don’t turn him loose to run amidst the law abiding people of this area, and any other area he might go.

No objection was offered to the first and third excerpts. Following the second, defense counsel interposed an objection to the characterization, “psychopathic killer,” which the trial sustained, again reminding the jury that closing argument was only an aid to the jury and not evidence. The objection having been sustained and the jury admonished, no error occurred.

XI

THE VERDICT OF THE APPELLANT SHOULD BE REVERSED IN THAT THE APPELLANT WAS DENIED A FAIR TRIAL DUE TO NUMEROUS LEADING QUESTIONS ASKED BY THE PROSECUTING ATTORNEY DURING THE STATE’S CASE.

XII

THE CUMULATIVE EFFECT OF THE ERRORS OF THE TRIAL COURT AND THE PROSECUTING ATTORNEY TAINTED THE PROCEEDINGS AND AMOUNTED TO CUMULATIVE ERROR REQUIRING REVERSAL.

In the recent case of Alexander v. Chapman, 289 Ark. 238, 711 S.W.2d 765 (1986), we reversed a medical malpractice case because there was a pervasive misuse of leading questions by the defense in the production of evidence which the trial court was unable to control. Appellant cites this language from the Alexan der decision:

There are limits to everything and when counsel cannot or will not abide by the rules of evidence and of the trial court, and the trial court cannot stop the violations, we have to. The contention on appeal is that although not one instance of counsel’s conduct would be cause for reversal, all of the violations combined to deny the appellant a fair trial.

In this case we have examined the ten specific instances of leading questions by counsel for the state cited by the appellant. However, this was a lengthy trial and there was an evident attempt by counsel to comply with the trial judge’s directive to avoid leading questions. We are satisfied the situation is not comparable to Alexander v. Chapman.

We have examined all other objections made during the trial pursuant to Rule 11 (f), Rules of the Supreme Court and Court of Appeals, and find no error. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

Finding no error, the judgment is affirmed.

       Record, p. 99.


author: David Newbern, Justice.

text:
    CRAIGHEAD COUNTY BOARD OF EDUCATION, Joe Boone, Doyle Yarbrough, and Robert Flannigan v. Mearl HENRY
    87-314
    748 S.W.2d 132
    Supreme Court of Arkansas
    Opinion delivered April 18, 1988

      Bill W. Bristow, P.A., for appellants.

      Henry, Walden & Davis, by: Troy Henry, for appellee.
   David Newbern, Justice.

Appellant, Craighead County Board of Education, dismissed Mearl Henry, the appellee, from his position as county school superintendent. The other appellants are Joe Boone, Doyle Yarbrough, and Robert Flannigan, who were apparently the only three members of the board. Henry sought a declaratory judgment to the effect that the dismissal was illegal because appellant Flannigan, who had voted to dismiss Henry, was not legally a member of the board when the vote was taken because he had forfeited his membership when he became mayor of Monette, Arkansas. Combined with his claim for a declaratory judgment was Henry’s claim for damages for unlawful dismissal. The trial court held that Flannigan could not have been a member of the board when the vote on Henry was taken because Ark. Code Ann. § 6-12-101(b) (1987) provides that a county board of education member shall be one who does “not hold any salaried . . . office of the state or any political subdivision thereof.” A final judgment was issued on this claim, and the matter was certified as being appealable pursuant to Ark. R. Civ. P. 54(b). We reverse because we find the statute to be in conflict with Ark. Const, art. 19, § 26, which provides in part that “officers of the public schools may be elected to fill any executive or judicial office.”

The argument of the board is that Flannigan is not a public school officer so the constitutional provision does not protect him from the application of the statute. The contention is that he is a “county officer” rather than a public school officer, and that he cannot be a public school officer because he is affiliated with no school district. No explanation or authority is given to support the proposition that one may not be both a county officer and a public school officer. The board cites Cade v. State, 185 Ark. 1150, 51 S.W.2d 857 (1932), but there it was held only that a county board member and a county superintendent of schools were county officers; it was not held that they were not public school officers. Nor is there explanation of the argument that one must serve a particular school district to be a public school officer. Maddox v. State, 220 Ark. 762, 249 S.W.2d 972 (1952), is cited, but there it was held only that a school teacher and a superintendent were not “public officers” but were, instead, school employees. No reference was made to the constitutional provision.

We need only look to the statutes creating county boards of education to see that the general assembly contemplated that they be public school officers. Ark. Code Ann. § 6-12-108(a) (1987) provides:

6-12-108. Schools under board supervision — Superintendent.
(a) The public schools of each of the several counties of the state, except those schools in districts which employ a superintendent of schools, shall be under the general direction and supervision of the county board of education insofar as is provided in this chapter.

Arkansas Code Ann. § 6-12-109 (1987) provides:

6-12-109. Powers and duties.
(a) It shall be the duty of the county board of education to supervise and direct all its employees in the performance of their duties and, in addition thereto, the board shall have all powers, duties, and responsibilities respecting the public schools of the several counties which are set forth in subsection (b).
(b) Specifically, these duties, among others, shall include the following:
(1) To apportion all school funds as provided by law and in conformity to the regulations of the State Board of Education;
(2) To form local school districts, change boundary lines of school districts, dissolve school districts and annex the territory of such districts to another district, create new school districts, and perform all other functions regarding changes in school districts, in accordance with the law;
(3) To transfer funds and attach territory which is in no school district to other districts as may seem best for the educational welfare of the county;
(4) To cause to be set aside from funds in the county general school fund amounts necessary for the expenses of the board and of the county school supervisor’s office;
(5) To administer the compulsory school attendance laws in the county;
(6) To approve budgets of school districts coming under the provisions of this chapter;
(7) To appoint all school directors in all school districts where the authority to do so has heretofore been conferred on any county judge of any county.

While we recognize the rule that we presume statutes not to be unconstitutional, HCA Medical Services of Midwest, Inc. v. Rodgers, 292 Ark. 359, 730 S.W.2d 229 (1987), and that the longevity of a statute is persuasive of its constitutionality, South Central District of the Pentecostal Church of God of America, Inc. v. Bruch-Rogers Co., 269 Ark. 130, 599 S.W.2d 702 (1980), we cannot ignore the words of the Constitution and the legislative scheme giving the county board of education responsibilities for public schools. The fact that board members are county public school officers makes them no less “officers of the public schools.” Therefore, we conclude Ark. Code Ann. § 6-12-101 (b) (1987) is unconstitutional to the extent it precludes county board of education members from holding elected executive or judicial office because it is in conflict with art. 19, § 26 of the Constitution.

Reversed and remanded.

Hickman, J., dissents.


author: David Newbern, Justice. Jack Holt, Jr., Chief Justice,

text:
    NORTHWEST TIRE SERVICE and Tri-State Insurance Company v. Arlie EVANS
    87-360
    748 S.W.2d 134
    Supreme Court of Arkansas
    Opinion delivered April 18, 1988

      Mashburn & Taylor, by: Michael H. Mashburn, for petitioners.

      Bassett Law Firm, by: Curtis L. Nebben, for amicus curiae Tyson Foods, Inc.

      Walter A. Murray, for amicus curiae Arkansas Self-Insured Association.

      Jan N. Tolley, for respondent.
   David Newbern, Justice.

The sole issue to be considered here is whether the furnishing, by an employer, of replacement medicine to an injured employee is payment of “compensation” and thus tolls the statute of limitations applicable to a workers’ compensation claim. The Arkansas Workers’ Compensation Commission held that it did not. The Arkansas Court of Appeals reversed. We affirm the court of appeals.

The statute to be considered is Ark. Code Ann. § 11-9-702(b) (1987):

Time for Filing for Additional Compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation, or two (2) years from the date of the injury, whichever is greater. The time limitations of this subsection shall not apply to claims for replacement of medicine, crutches, artificial limbs, and other apparatus permanently or indefinitely required as the result of a compensable injury, where the employer or carrier previously furnished such medical supplies.

The respondent, Arlie Evans, received a compensable injury in 1976. His partial disability payments ended in 1980, and payments for treatment other than medication ended in October, 1983. Thereafter, he received payments on his claim only for prescription refills. In April, 1985, Evans filed for additional benefits, claiming he had become permanently and totally disabled. The commission denied his claim on the ground that the statute of limitations had run. The court of appeals held that, because no one-year period had elapsed between payments, the limitations period had not run. To reach that decision, it was necessary to characterize furnishing prescription refills as “compensation.”

The court of appeals relied on its decision in Alred v. Jackson Atlantic, Inc., 268 Ark. 695, 595 S.W.2d 249 (Ark. App. 1980), in which it was clearly held that payments for prescription refills constituted compensation and thus tolled the statute. The petitioners suggest that the Aired case is distinguishable on the ground that the prescription refills there may have been “treatment” and here the commission has held they were “purely replacement medicine.” The suggestion is that having a prescription filled may constitute “treatment” and the furnishing of it may toll the statute, but a refill is somehow not to be characterized as “treatment” because it is “purely replacement medicine.” As the distinction escapes us, we move on to consider whether the Aired case should be overruled.

The petitioners contend the Aired decision “on the surface at least” conflicted with our decision in Mohawk Rubber Co. v. Thompson, 265 Ark. 16, 576 S.W.2d 216 (1979). There we held that, because of the exceptions in the second sentence of the statute, a worker could be entitled to have his orthopedic footwear replaced, but that the replacement of the shoes more than two years after the injury and more than one year after the last payment of compensation would not revive the claim. There was no doubt in the Mohawk case that the statute had run because more than a year had elapsed between payments of compensation, and thus the court of appeals correctly distinguished it in its opinion in the Aired case.

In both the Aired case and the case now before us, the court of appeals noted that “compensation” includes the furnishing of medicine only to the extent that it is “reasonably necessary” for treatment of the compensable injury. See Ark. Code Ann. §§11-9-102(9), 11-9-508(a), and 11-9-509 (1987). This correct conclusion blunts the argument that by merely having a prescription refilled at the employer’s expense an injured employee can forever prevent the statute from running.

We appreciate the general assembly’s interest in providing a time limitation on an injured employee’s claim. We understand the legislative decision to tie the limitation to the continued furnishing of compensation. The period of treatment, including reasonably necessary medication, plus a year is a reasonable period in which to determine the full extent of the injury. We held in Ragon v. Great American Indemnity Co., 224 Ark. 387, 273 S.W.2d 524 (1954), that medical payments constituted “compensation” in addition to disability payments for the purpose of determining an attorney fee under the workers’ compensation law. Combining that decision with our understanding of the statute under consideration here and the policies behind it, we conclude the court of appeals’ construction of the statute was correct. Even if there were substantial doubt about the legislative intent, we would interpret the statute liberally in favor of the injured worker, given the highly remedial nature of the workers’ compensation law. See Gill v. Ozark Forest Products, Inc., 255 Ark. 951, 504 S.W.2d 357 (1974); McGhee Hatchery Co. v. Gunter, 237 Ark. 448, 373 S.W.2d 401 (1963).

Affirmed.

Holt, C.J. and Hickman and Glaze, JJ., dissent.

Jack Holt, Jr., Chief Justice,

dissenting. I respectfully dissent. I do not feel as though our holding in Ragon blends with the statute under consideration nor does it furnish us a basis for holding that the court of appeals’ construction of the statute was correct. In dissenting to the court of appeals’ construction, Chief Judge Corbin stated:

Arkansas Statutes Annotated § 81-1318(b) is clear and unambiguous. Under the statute, a claimant is not eligible to receive compensation for additional medical benefits unless the claim is filed within one year of the date of last payment of compensation or two years from the date of the injury. The statute’s 1968 amended sentence goes on to explain that the limitations periods for additional benefits shall not apply to replacement of medicine, crutches, artificial limbs, etc., required as a result of the compensable injury. In this case, appellant is clearly entitled to receive replacement medicines indefinitely under the express language of the amended sentence of Arkansas Statutes Annotated § 81 -1318 (b). However, it is also clear that merely receiving replacement medicines without any medical treatment will not operate to toll the statute for additional benefits once the statutory period has run. [Emphasis in original.]

I agree.

Judge Corbin, appropriately concludes: “[A]ny expansion of the act should come from the legislature, not the courts.”

Hickman, J., joins in this dissent.


author: David Newbern, Justice. Steele Hays, Justice,

text:
    SOUTHERN FARM BUREAU LIFE INSURANCE COMPANY v. Mary Irene COWGER
    87-300
    748 S.W.2d 332
    Supreme Court of Arkansas
    Opinion delivered April 18, 1988
    [Rehearing denied May 16, 1988.]

      Friday, Eldredge & Clark, by: Laura A. Hensley and C. Tab Turner, for appellant.

      Hendren & Hood, for appellee.

       Hickman, J., would grant rehearing.

   David Newbern, Justice.

The appellant, Southern Farm Bureau Life Insurance Company (the company), insured the life of Ronald Cowger. Mr. Cowger was killed in a tractor accident, and the company refused to pay the $100,000 policy amount to the beneficiary, appellee Mary Irene Cowger, because Mr. Cowger had misrepresented his health when applying for the policy. In accordance with our decision in National Old Line Ins. Co. v. People, 256 Ark. 137, 506 S.W.2d 128 (1974), the trial court instructed the jury that, if the fact or facts not revealed in the insurance application were not the cause of death, the misrepresentation would not bar recovery. We overrule that case, but we do so prospectively only, and thus the judgment before us now is affirmed. We also affirm the part of the judgment allowing a fee of $33,000 to Mrs. Cowger’s counsel.

Mr. and Mrs. Cowger wanted to borrow from a bank to build chicken houses on their farm. The bank required that Mr. Cowger’s life be insured. Mr. Cowger applied for a $100,000 policy with the company and submitted to a physical examination conducted by a paramedic on behalf of the company who asked him questions about his health and wrote down Mr. Cowger’s answers on a form. Mr. Cowger’s responses included his statements that he had not suffered stomach or liver disorders or used alcohol to excess in the last ten years. The truth was that Mr. Cowger had been hospitalized more than once during that time and had been diagnosed as having cirrhosis of the liver, acute alcoholism, and delirium tremens. The evidence showed, and it is not contested by Mrs. Cowger, that Mr. Cowger was aware of his condition when he applied for the policy.

On June 21, 1986, which was within the two-year period in which the policy remained contestable, Mr. Cowger was killed by being pinned beneath an overturned tractor on a slope he was attempting to mow. He had been released from his final hospitalization for alcoholism symptoms the day before. No blood test was done, and there was no evidence Mr. Cowger was drunk or drinking when his death occurred.

1. Causation

In Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969), the insurer sued to rescind a health policy on the ground that the insured had stated he had not had “heart trouble.” The insured counterclaimed to recover on the policy for injury to his leg from a shooting accident. We upheld a judgment denying rescission and awarding damages on the counterclaim because a negative answer to the question about “heart trouble” was not necessarily a misrepresentation. The insured had been diagnosed as having more than one kind of heart disease, but the results of exploratory surgery were negative.

Justice George Rose Smith filed a concurring opinion in which he stated he would have reached the same result on the counterclaim because the insured’s heart condition had nothing to do with the leg injury. The opinion quoted part of what is now Ark. Code Ann. § 23-79-107 (1987) as follows:

Misrepresentations, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(1) Fraudulent; or
(2) Material either to the acceptance of the risk or to the hazard assumed by the insurer; or
(3) The insurer in good faith would not have issued the policy or contract or would not have issued a policy or contract in as large an amount or at the same premium or rate or would not have provided coverage with respect to the hazard resulting in the loss if the facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.

Justice Smith contended that these provisions were only the minimum requirements of an insurer’s proof and that “irrelevant” misrepresentations should not bar insurance claims.

In National Old Line Ins. Co. v. People, supra, we adopted Justice Smith’s position. In that case, an applicant for credit life insurance stated in the application, which was also the policy document issued by a car dealer as agent for the insurer, “I hereby apply for the insurance shown above and represent that I am now in good health, both mentally and physically, and free from any mental or physical impairment of any chronic disease, and am the age shown above.” Just above the applicant’s signature appeared the statement in larger capital letters, “I AM NOW IN GOOD HEALTH.” The jury, responding to an interrogatory, concluded that the policy application contained no misrepresentation. The undisputed evidence was that the insured was not in good health but had been treated, for four years before making the application, for high blood pressure and diabetes.

The majority opinion quoted the statutory language above and concluded that there must be a causal relation between the misrepresentation and the loss for recovery to be barred, presumably meaning a causal relation between the condition misrepresented and the loss. We stated that subsection (a)(3) of the statute supported the conclusion to some extent by this language: “the insurer in good faith . . . would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known.” We said, “Thus it would be a defense to the insurer, in a back injury case, to show that if the applicant had disclosed a history of back trouble it would have excepted that hazard from the policy.” Justice Byrd filed a persuasive dissenting opinion, the essence of which was that we were guilty of a gross misinterpretation of the statute.

While it may be that subsection (a)(3) offers some support for our rationale when combined with the assumption that the statute states only a minimum of proof the insurer must make to bar recovery for misrepresentation, that conclusion ignores the remainder of the quoted statutory language. The statute could not be clearer in stating that misrepresentation will not bar recovery unless it is fraudulent or “[m]aterial either to the acceptance of the risk or to the hazard assumed by the insurer.” As one critic of our opinion put it:

Whatever tendency the language emphasized by Justice Smith in paragraph [(a)(3)] of [the statute] may have, when lifted out of context to suggest a requirement that a misrepresented fact has contributed to the loss for which policy benefits are sought, fades when the paragraph is read as a whole.

D. F. Adams, Misrepresentation in the Procurement of Insurance, 4 UALR L.J. 17, at 79 (1981).

Our opinion in the National Old Line case, however, did not rest solely on the support we found in the statutory language. We wrote:

Fairness and reason support the view that a causal connection should be essential. Otherwise, when the insured is killed by a stroke of lightning or by being run over by a car, the insurance company could successfully deny liability by showing that the insured was suffering from diabetes when he stated that he was in good health.
Such considerations of fairness are especially pertinent to a credit life insurance policy like the one before us. This was a short-term policy, to remain in force for only three years. The company made no medical examination of the applicant, relying upon him either to refuse to sign the application if he was not in good health, in which case the policy would never be issued, or to “clip a note” to the application, explaining his health condition. The appellant had the burden of proving its affirmative defense, but it made no effort to show that the automobile salesman who took People’s application made any explanation of the printed form or of the significance of the representation of good health. If People had lived for three years the insurer would have sustained no loss. In the circumstances it is plainly unjust to permit the company to deny liability on the basis of a misrepresentation that had no connection with People’s death (or so the jury might have found) and that would have provided no defense to the insurer if the policy had excluded coverage for loss resulting from the undisclosed ailments. [256 Ark. 142, 506 S.W.2d at 131.]

Given the emphasis placed on the type of policy and the type of medical inquiry which occurred in the National Old Line case, there is the temptation to limit its holding to credit life policies tendered by automobile salespersons where no detailed medical questions are asked. We cannot do that because the sweep of principle adopted in the opinion is too broad. We have applied the ruling only in very similar cases, Ford Life Ins. Co. v. Samples, 277 Ark. 351, 641 S.W.2d 708 (1982); Ford Life Ins. Co. v. Jones, 262 Ark. 881, 563 S.W.2d 399 (1978), and not in “regular” insurance cases where the misrepresentation occurred in response to a more thorough investigation of the health of the prospective insured. Thus this is, in a way, a case of first impression in this court, and we do not feel that our decisions have become as much a part of the statute as its very words. See Lucky v. Equity Mut. Ins. Co., 259 Ark. 846, 537 S.W.2d 160 (1976). Cf. Crawford v. Emcasco, 294 Ark. 569, 745 S.W.2d 132 (1988). Our court of appeals has, however, applied our National Old Line case rationale in a regular term life insurance policy case, like the one before us now, Capitol Old Line Ins. Co. v. Gorondy, 1 Ark. App. 14, 612 S.W.2d 128 (1981), and in a health insurance policy case, Ward v. Union Life Ins. Co., 9 Ark. App. 131, 653 S.W.2d 153 (1983). In cases like the credit life cases where the insurance application questions and the answers required are very general and not detailed, the factual question whether the applicant for insurance has indeed misrepresented his or her health will be more difficult, and presumably, the fact-finder’s determination will be subjected to the sort of scrutiny we gave it in our majority opinion in Old Republic Ins. Co. v. Alexander, supra. Where, however, as here, it is clear and virtually uncontested that a misrepresentation has occurred, resulting in the issuance of a policy of insurance which would not otherwise have issued, we could not approve a finding of fact to the contrary.

With respect to the fairness and justice statements made in our opinion in the National Old Line case we must point out that there are counter-considerations. The policy we have adopted is that regardless of a misrepresentation which causes the insurer to undertake a risk, liability will occur unless the loss is related to the fact misrepresented. This places the policy applicant in the position of being able to gamble that he or she will not sustain a loss caused by the existence of the fact misrepresented. The misrepresentation may or may not have an effect. The party defrauding the insurance company may or may not be rewarded. On the other hand, the honest applicant who has the same facts to reveal will be denied insurance because of telling the truth.

It may be that these policy considerations balance each other. We might even conclude, if it were up to us, that the fairness and justice considerations do come down somewhat on the side of the insured who has lied in order to obtain coverage. Our point is, however, that the decision has been made by the body properly charged with making such decisions, that is, the general assembly. We incorrectly ignored their decision in the National Old Line case and we now correct our error.

In reaching this result, we are not alone. In his 1981 article cited above, Professor Adams reported that of seventeen states which had adopted statutory rules on misrepresentation resembling our statute none had construed such a statute as incorporating the kind of causation requirement found in the National Old Line case, and at least three states had rejected such a reading. We have found cases published since the date of the article rejecting our earlier position (although not specifically mentioning our decision), Wickersham v. John Hancock Mut. Life Ins. Co., 413 Mich. 57, 318 N.W.2d 456 (1982); McAllister v. AVEMCO Ins. Co., 528 A.2d 758 (Vt. 1987), and none adopting it. See also 7 G. Couch, Insurance, §§ 35:47 and 35:87 (2d ed. 1985).

While we now conclude that an insurer may defend a policy claim on the ground of a misrepresentation which caused the issuance of the policy but with respect to which the fact or facts misrepresented were not necessarily related to the loss sustained, we do not apply the new rule to this case. We do not know that the parties relied on our old rule in making their contract, but we must assume they did and not apply this decision retroactively. Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W.2d 973 (1952). See also Crawford v. Emcasco, supra; Lucky v. Equity Mut. Ins. Co., supra.

2. Attorney fee

This case began with the filing by the company of a suit to rescind the policy. That suit died for lack of service of process, and Mrs. Cowger then brought this action. Her attorney agreed to represent her on a contingent fee basis for one-third of the recovery. Arkansas Code Ann. § 23-79-208(a) (1987) provides that a recovery against an insurer who refuses to pay will include a twelve percent penalty with “all reasonable attorneys’ fees for the prosecution and collection of the loss.”

Mrs. Cowger’s attorney stated to the trial court that his regular hourly fee was $80 and that he had recorded 104.9 hours spent on the case which did not include early conferences. He also stated he charged $1,000 per day for trial (in this case $2,000 total) and he sought $800 per day for the presence of his associate attorney at the trial, $438.50 for court reporter fees and depositions, $12.90 telephone charges and $7.20 postage. The company objected to all charges other than the hourly charge and the $ 1,000 per day trial charge. Thus, apparently the company would not object to having awarded against it an attorney fee of $10,392. The trial court awarded $33,000.

In Old Republic Ins. Co. v. Alexander, supra, which we decided in 1969, we held that a fee of $6,000 was not excessive where the recovery was $51,000 and we awarded an additional $1,500 for the attorney’s fee on appeal. In his typically thorough fashion, Justice Fogleman reviewed the authorities on the question of the appropriateness of a fee to be awarded against a recalcitrant insurer.

Appellant also contends that the attorney’s fee of $6,000 allowed by the trial court was exorbitantly excessive. It correctly states that the fee contemplated [by the statute] is not a speculative or contingent fee but such a fee as would be reasonable for a litigant to pay his attorney for prosecuting such a case. It is not correct, however, as suggested by appellant that the mere time involved is the only factor to be considered. The purpose of the statute ... is to permit an insured to obtain the services of a competent attorney. The amount of the fee allowed should be such that well prepared attorneys will not avoid this class of litigation or fail to devote sufficient time for thorough preparation. It would not only be commensurate with the time and amount of work required but also with the ability present and necessary to meet the issues that arise. Also we have often considered the sum recovered or the amount involved in an action in allowing fees or in considering fees allowed by trial courts. The statute requires that we do so in cases, such as this, where the insurance company brings suit to cancel a policy. It is also appropriate that consideration be given to the trial judge’s acquaintance with the case. When we consider from an inspection of the record the nature of the cause, the novelty of some of the questions presented, the heat of the contest, the time necessary for preparation of the case, the standing and ability of the attorneys on both sides, and the knowledge of the trial court of the nature and the extent of the services rendered, we cannot say that this allowance on a recovery of $51,000 and interest was excessive. [Citations omitted.]

See also the factors set out in Southall v. Farm Bureau Mut. Ins. Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984), and Equitable Life Assurance Soc. of the United States v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974), where we reiterated that the statute does not contemplate the awarding of a contingent fee against the insurer.

The fee awarded by the trial court was not precisely one-third of the recovery. The judgment for Mrs. Cowger was for $100,000 plus eight percent interest from the date of Mr. Cowger’s death. The twelve percent penalty based on the judgment plus interest came to $12,899.60. Her total recovery from the company, exclusive of the attorney fee, was thus something over $120,000. The contingent fee would thus be roughly $40,000. The fee of $33,000 was awarded after a hearing in which testimony was given by attorneys not involved in this claim as to what would be reasonable. In these circumstances, we cannot say the trial court abused his discretion in setting the fee. We award an additional $1,500 fee to Mrs. Cowger’s attorney for the prosecution of this appeal.

Affirmed.

Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. Nothing in the majority opinion justifies overruling the established principle of Arkansas insurance law that to deny recovery an insurer must show a causal connection between a fact misrepresented in an application for life insurance and the subsequent loss. While this principle appeared in National Old Line Ins. Co. v. People, 256 Ark. 137, 506 S.W.2d 12 (1974), as an interpretation of the Arkansas Insurance Code of 1959, it actually has been a part of Arkansas law since it was first stated in Inter-Ocean Casualty Co. v. Huddleston, 184 Ark. 1129, 458 S.W. 23 (1932). A doctrine so well established in the law should not be so easily overruled, in the absence of compelling reasons.

Having been a part of our law for over a decade the rule has doubtless become a basis for insurers to anticipate losses. Professor Adams had noted Justice Byrd’s comment in National Old Line that “the burden initially cast on insurers by the rule is not likely to remain with them, for premium rates will be adjusted to absorb the added cost. . . .” Adams, Misrepresentation in the Procurement of Insurance, 4 U.A.L.R.L.J. 17 (1981).Toreverse the rule now invites insurers to retain the benefits which will result from our change of position.

While the majority concedes that fairness favors a causal connection requirement, it denies that the statute admits of such an interpretation. The majority does not challenge Justice Smith’s conclusion that the statute “merely provides a minimum prerequisite to the insurer’s successful defense.” Old Republic Ins. Co. v. Alexander, 245 Ark. 1029, 1044, 436 S.W.2d 829, 838 (1969). Nor does it complain that the causation requirement runs against public policy; indeed, several states have explicitly incorporated the requirement into their statutes. Kan. Stat. Ann. § 40-418 (1986); Mo. Rev. Stat. § 376.580 (1959); R.I. Gen. Laws § 27-4-10 (1979). Rather, under the rubric of honoring legislative intention, the majority has imposed its own judgment over time-tested law. Had the legislature actually intended not to require proof of a causal connection, it could have acted to clarify its position during any one of the legislative sessions conducted since National Old Line was handed down in 1974. Generally, legislative inaction following a practical interpretation of a statute is evidence that the legislature intends to adopt such an interpretation. Sutherland Stat. Const. § 49.10 (4th ed.). “There is a strong authoritative effect of judicial interpretive opinions that the legislature has acquiesced in by the lapse of time without action.” Johnstone, An Evaluation of the Rules of Statutory Interpretation, 3 U. Kan. L. Rev. 1 (1954). Accord, Shivers v. Moon Distributors, 223 Ark. 371, 265 S.W.2d 947 (1954). By its long acquiescence in the National Old Line holding, the legislature has expressed its satisfaction with our interpretation of the insurance code. Thus, the majority is shunning this legislative expression by overruling National Old Line and giving a new and different meaning to the act. For these reasons I believe the trial court should be affirmed.

Hickman, J., joins this dissent.