text:
    JOHN CHEESEMAN TRUCKING, INC. and John Hofstetter, et al. v. Johnny “Bo” DOUGAN; William J. Bevis, Jr., et al.
    90-140
    805 S.W.2d 69
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991

      Hucabay, Munson, Rowlett, and Tilley, by: Beverly A. Rowlett, for appellants John Cheeseman Trucking and John Hofstetter.

      Friday, Eldredge & Clark, by: James M. Simpson and Guy Alton Wade, for appellants Mallinckrodt, Inc., Morgan Clay, and Sunbelt Transportation.

      Laser, Sharp, Mayes, Wilson, Bujford and Watts, for appellee Johnny Bo Dougan.

      Hardin, Jesson and Dawson, for appellee William J. Bevis, Jr.

      Randall L. Gammill, for appellee Katherine Pinson.

      Anderson <fe Kilpatrick, by: Michael E. Aud\ and Phillips Law Firm, by: Paul Byrd and James H. Phillips, for appellees Glen McClendon Trucking and James Guy Smith.

      Jerry Kelly, for appellee Elizabeth Kittler.

      Gary Eubanks & Associates, by: Darryl E. Baker and James Gerard Schulze, for appellee Tammy Bullock.

      Wright, Lindsey & Jennings, for appellees David Newman, Richard Pitrolo, and Ryder Truck Rental.
   Steele Hays, Justice.

This case is the product of a consolidation of several suits spawned by a series of collisions involving eleven motor vehicles. The collisions occurred on the night of June 8, 1988, on Interstate 40 adjacent to farms of Johnny “Bo” Dougan and William J. Bevis in eastern Pulaski County. Earlier that day Dougan and Bevis had set fire to wheat stubble on fields lying north of the interstate. As east bound vehicles approached mile marker 162 they encountered dense smoke limiting visibility to a few feet. The first vehicles to encounter the smoke were two tractor trailers, one belonging to John Cheeseman Trucking, Inc., driven by John Hofstetter, and the other belonging to Mallinckrodt, Inc., leased to Sunbelt Transportation, Inc., and driven by Morgan Clay. Hofstetter was in the left lane and Clay in the right lane, slightly behind. Both drivers stopped abruptly, attributing a total loss of vision to the density of the smoke. The ensuing collisions resulted in four deaths, a number of injuries and extensive property damage. Ryder Truck Rental, Inc., David Newman and Richard Pitrolo filed suit against The Kroger Company and Johnny “Bo” Dougan. John Cheeseman Trucking, Inc., Hofstetter and others intervened or were added by third party complaint until some twenty parties and multiple cross claims were involved.

The trial court ordered a bifurcated trial, liability to be determined in one trial and damages in another. The liability issues were submitted on interrogatories, in response to which the jury determined that the negligence of John Hofstetter and John Cheeseman Trucking, Inc. was fifty percent and the negligence of Morgan Clay, Sunbelt Transportations, Inc. and Mallinckrodt, Inc. was fifty percent, thus contributing in equal parts to proximately cause damage to Ryder Truck Rental, David Newman, Richard Pitrolo, Estate of J.W. Stocks, Estate of Bobby Woodruff, The Kroger Company, Jerry Odom, James Guy Smith, Jr., Glen McClendon Trucking, Inc., Estate of Hollis Brown, Elizabeth Kittle and Tammy Bullock.

Pursuant to the verdict, the trial court entered a judgment, finding that the defendants adjudged to be liable in the action should not be burdened with the expense of trying the issue of damages if, in fact, there was reversible error in the liability phase of the case. Citing judicial economy and the absence of any just reason for delay, the judgment stated it was a final judgment pursuant to ARCP Rule 54(b). Cheeseman, John Hofstetter, Mallinckrodt, Inc., Morgan Clay and Sunbelt have appealed.

We cannot address the arguments raised on appeal because the judgment appealed from, its recitations notwithstanding, is not a final judgment. It merely determines which parties were damaged, which parties were negligent and the degree to which that negligence contributed to the occurrence. Rule 2 of the Rules of Appellate Procedure lists nine types of judgments, orders or decrees from which an appeal may be taken. All require finality in some respect and an order which merely determines liability and defers a determination as to the damages is not final. Malone & Hyde, Inc. v. West & Co. of L.A., Inc., 300 Ark. 435, 780 S.W.2d 13 (1989); Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987). We have said repeatedly, for an order to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Roberts Enterprises, Inc. v. Arkansas State Highway Commission, 277 Ark. 25, 638 S.W.2d 75 (1982). Nor does Rule 54(b) obviate the requirement of finality as to some aspect of the litigation. It merely provides that a judgment which is final as to less than all of the litigants or the claims, is subject to appeal in accordance with the conditions recited in the rule. That, of course, is not the situation here presented.

We addressed the appealability of bifurcated trials as to issues of liability and damages in the case of Mueller, et al. v. Killam, et al., 295 Ark. 270, 748 S.W.2d 141 (1988):

The decree specified that “[t]his order shall constitute a final appealable order of the Court. . . .” We hold to the contrary and dismiss this appeal because the decree was not one from which an appeal may be taken under Ark. R. App P. 2 and Ark. R. Civ. P. 54(b).

Other courts, state and federal, have also held that Rule 54(b) does not provide a mechanism for appeal from bifurcated trials of liability/damages issues. Kaszuk v. Bakery & Confectionery Union & Industry International Pension Fund, 791 F.2d 548 (7th Cir. 1986); Williams v. St. Louis Diecasting Corp., 611 F.2d 1223 (8th Cir. 1979); Ball Corp. v. Loran, 42 Colo. App. 501, 596 P.2d 412 (1979); Harms, Inc. v. Tops Music Enterprises, Inc., 160 F. Supp. 77 (C. Cal. 1958).

Here, some parties and some claims were dismissed by the order entered pursuant to the jury’s verdict, but those dismissals are not germane to the issues presented to us for review and not properly cognizable under Rule 54(b).

While it may seem that judicial economy would be served by an interlocutory appeal from a bifurcated trial of the liability/ damages issues, in reality the reverse is true because such procedure invites two appeals, whereas the requirement of finality assures only one. Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984). Harms, Inc. v. Tops Music Enterprises, Inc., supra.

The parties have not raised the issue of the appealability of this judgment, nevertheless it is our duty to determine that this court has jurisdiction. Roy v. International Multifoods Corp., 268 Ark. 958, 598 S.W.2d 129 (1980). Mueller, et al. v. Killam, supra.

Appeal dismissed.

Glaze, J., not participating.


source: Caselaw Access Project

author: Tom Glaze, Justice.

license: Public Domain

text:
    Leffel BROWN v. STATE of Arkansas
    CR 90-250
    805 S.W.2d 73
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991

      James R. Marschewski, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of attempted capital murder and aggravated assault steming from a shootout with Fort Smith police officers. He argues two points for reversal, but neither has merit. Therefore, we affirm.

Upon reporting for duty on December 23,1988, Officer Ron Lockhart was briefed on an armed robbery that had occurred earlier that night. Lockhart was given a detailed description of the suspect and his pickup truck, and the report provided the vehicle bore Oklahoma tags containing the prefix, L-E-F. Later the same night, Officers Lockhart and Rowlett were on patrol when they received a radio dispatch concerning another robbery. The perpetrator of the second robbery bore the same or similar description of the suspect described in the earlier briefing. The officers drove to a place near Interstate 540 where they thought the suspect might proceed on his way to Oklahoma. The officers’ hunch was validated when they subsequently located and stopped the appellant in his pickup truck. According to the officers, the appellant did not respond to requests that he put his hands where the officers could see them, but instead began firing at the officers with a handgun. Appellant subsequently sped off in his vehicle, but was later apprehended when he wrecked his truck and fled on foot.

At trial, appellant moved to exclude any reference by the state to the armed robberies for which appellant had been stopped. He argues the robberies were not relevant to the prosecution for attempted capital murder, and therefore, would be highly prejudicial.

In a prior appeal by this same appellant, we upheld the trial court’s ruling which allowed the state to join the two aggravated robbery charges against him because both robberies were of the same character, or were of a single scheme or plan. See Brown v. State, 304 Ark. 98, 800 S.W.2d 424 (1990). Additionally, we stated that some of the state’s proof was pertinent to both robberies, and in order for the officers to explain why appellant was stopped, it was necessary to prove the earlier robbery. Brown, 304 Ark. at 100-101, 800 S.W.2d at 426.

Our court has repeatedly held that all the circumstances surrounding a particular crime may be shown, even if those circumstances would constitute a separate criminal act or acts, when the criminal acts are intermingled and contemporaneous with one another. Wilson v. State, 298 Ark. 608, 770 S.W.2d 123 (1989); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). In this instance, what led to the shooting between the appellant and the officers could not be explained without showing evidence surrounding the reported robberies. Otherwise, the jurors would be left to speculate as to why the appellant had been stopped by the officers and why the officers drew their weapons as they departed their vehicle. These facts were necessary for the jury to get a comprehensive picture of the events that surrounded and led to the attempted capital murder offense with which the appellant was charged. See Harris v. State, 239 Ark. 771, 394 S.W.2d 135 (1965).

In his second point for reversal, appellant claims the trial court erred when it sustained the state’s objection, thereby refusing to admit certain metal plates bearing bullet holes from a .45 caliber pistol and a 357 magnum pistol. The basis of appellant’s argument is that Officer Lockhart’s initial report reflected the appellant, using a .45 caliber weapon, first shot at Lockhart and hit the spotlight on Lockhart’s vehicle. Appellant argues that the testimony of his ballistics expert, Berwin Monroe, would show that a bullet from one of the officers’ .38 caliber weapons had actually struck the spotlight of the officers’ vehicle and therefore would support, at least inferentially, appellant’s claim that he had never fired his .45 at the officers. Appellant’s argument fails for two reasons. First, Lockhart, at trial, acknowledged that he probably shot and hit his car’s spotlight during the exchange of gun fire with appellant. Second, appellant’s own expert stated that the metal plates proffered by appellant would be of no help in determining the caliber of bullet that actually produced the hole in the spotlight of the officers’ vehicle. Considering these circumstances, we cannot say the trial court abused its discretion in excluding the metal plates proffered by the appellant. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990).

While appellant urges no further reasons for reversal, the state, on its own volition, argues the record fails to reveal that the trial court sentenced the appellant in compliance with the terms of A.R.Cr.P. Rule 36.4. The state concedes the appellant interposed no objection and did not otherwise preserve this issue on appeal. Accordingly, we need not discuss the point further. Phillips v. State, 304 Ark. 656, 801 S.W.2d 647 (1991).

We affirm.

       We note that, effective January 1, 1991, the court reinstated Rule 37, in revised form. That revised rule provides, in pertinent part, that if an appeal was taken of the judgment of conviction, a petition, claiming post-conviction relief, must be filed in circuit court within 60 days of the date the mandate was issued by the appellate court. Rule 37.2(c).


author: Donald L. Corbin, Justice. David Newbern, Justice, Tom Glaze, Justice,

text:
    BOB HANKINS DISTRIBUTING COMPANY v. Willie Frances MAY
    90-227
    805 S.W.2d 625
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991

      Jacoway, Sherman & Pence, by: William F. Sherman, for appellant.

      Fulkerson & Todd, by: Michael E. Todd, for appellee.
   Donald L. Corbin, Justice.

Appellant, Bob Hankins Distributing Company, brings this appeal to challenge a ruling of the Greene County Chancery Court that upheld the constitutionality of the Arkansas Garnishment Statutes, Ark. Code Ann. §§ 16-110-401 to -415 (1987). We reverse and dismiss.

Appellee, Willie Frances May, obtained two judgments against her former husband, Billy May, on sums that accrued pursuant to rights given her in a decree of divorce. Billy May was an employee of appellant. Two default judgments were obtained against appellant when it failed to respond to two writs of garnishment after judgment. This is the second time this case has been before us. The first time this case was before us, we reversed on procedural issues and remanded it to the trial court to develop the constitutional issue now at bar. May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990).

Appellant contends the Arkansas Garnishment Statutes violate its rights as a garnishee to the due process of law as guaranteed by the fourteenth amendment to the United States Constitution. Specifically, appellant claims the statutes are unconstitutional because they do not provide for adequate notice to garnishees that they may be liable for the judgment against the garnishee if they fail to properly answer writs of garnishments. We agree.

Appellee suggests that while section 16-110-401, the general authority under which writs of garnishment are issued, is silent on the issuance and service of a writ of garnishment, we should read our garnishment statutes in conjunction with Rule 4 of the Arkansas Rules of Civil Procedure, which deals with service of process upon the filing of a complaint. Appellee contends that Ark. R. Civ. P. 4 would cure the notice deficiency of the statute. We cannot agree.

Section 16-110-401 is the general authority under which writs of garnishment are issued. The relevant portion follows:

(a) In all cases where any plaintiff may begin an action in any court of record, or before any justice of the peace, or may have obtained a judgment before any of the courts, and the plaintiff shall have reason to believe that any other person is indebted to the defendant or has in his hands or possession goods and chattels, moneys, credits, and effects belonging to the defendant, the plaintiff may sue ¡out of a writ of garnishment, setting forth the claim, demand, or judgment, and commanding the officer charged with the execution thereof to summon the person therein named as garnishee, to appear at the return day of the writ and answer what goods, chattels, moneys, credits, and effects he may have in his hands or possession belonging to the defendant to satisfy the judgment, and answer such further interrogatories as may be exhibited against him.

Section 16-110-402 provides for the service of the writs: “[t]he writs shall be directed, served, and returned in the same manner as writs of summons.” While this statute is silent on the particular points of the issuance and service of a writ of summons, Rule 4 of the Arkansas Rules of Civil Procedure details the procedure for issuance and service of summons:

(a) Issuance: Upon the filing of the complaint, the clerk shall forthwith issue a summons and cause it to be delivered for service to a sheriff or to a person specifically appointed or authorized by law to serve it. Upon request of the plaintiff, separate or additional summons shall issue against any defendant.
(b) Form: The summons shall be styled in the name of the court and shall be dated and signed by the clerk; be under the seal of the court; contain the names of the parties; be directed to the defendant; state the name and address of the plaintiffs attorney, if any, otherwise the address of the plaintiff; and the time within which these rules require the defendant to appear, file a pleading, and defend and shall notify him that in case of his failure to do so, judgment by default may be entered against him for the relief demanded in the complaint.

Section 16-110-407 provides the penalty for a garnishee’s failure to answer a writ of garnishment, but does not require notice to the garnishee: '

(a) If any garnishee, after having been served with a writ of garnishment ten (10) days before the return day thereof, shall neglect or refuse to answer the interrogatories exhibited against him on or before the return day of such writ, the court or justice before whom the matter is pending shall enter judgment against the garnishee for the full amount specified in the plaintiffs judgment against the original defendant, together with costs.

Even considering our original finding in May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990), that writs of garnishment are to be served pursuant to Ark. R. Civ. P. 4, when the statute and rule are read together they still do not satisfy the constitutional mandate of requiring that adequate notice be given to the garnishee that his property may be subject to satisfaction of the debt.

It is true that when the statute and rule are read together, they require that the garnishee receive notice that a failure to respond to the summons or writ of garnishment could result in a default judgment being entered against him for “the relief demanded in the complaint.” Ark. R. Civ. P. 4(b). However, this requirement of notice is not sufficient to satisfy the due process mandate of the fourteenth amendment. The statue and rule are constitutionally deficient in that they do not specifically direct the garnishor to notify the garnishee that failure to answer the writ could result in the garnishee’s personal liability for the original amount owed to the garnishor by the debtor. If a garnishee failed to answer a writ of garnishment, he could be deprived of his property without notice. It is a garnishee’s right to predeprivation due process that must be protected.

The case of Pulaski County v. Commercial Nat’l Bank, 210 Ark. 124, 194 S.W.2d 883 (1946) is analogous to the issue now before us. There, we determined that an assessment statute, insofar as it authorized an appeal by one property owner from a decision of the Board of Equalization refusing to raise the assessment of another property owner without requiring any kind of notice to that property owner, contravenes the fourteenth amendment of the Constitution of the United States and is therefore void.

We note that other aspects of the garnishment statutes have been held unconstitutional. Davis v. Paschall, 640 F. Supp. 198, (E.D. Ark. 1986), held the statutes unconstitutional insofar as they fail to give adequate notice to the judgment debtor of his right to claim exemptions. In Kennedy v. Kelly, 295 Ark. 678, 751 S.W.2d 6 (1988), we interpreted Davis, supra, and held that a garnishee had no standing to challenge the garnishment laws based on the judgment debtor’s right to notice.

Appellee calls our attention to the fact that both writs issued in this case contained the following language:

NOTICE TO GARNISHEE: Failure to answer this writ within 20 days or failure or refusal to answer the interrogatories as may be propounded shall result in the court entering a judgment for the full amount specified in this writ of Garnishee, together with costs of the action.

We reach the inescapable conclusion that the Arkansas Garnishment Statutes in effect at the time of this action are unconstitutional insofar as they do not require that adequate notice be given to the garnishee that his property may be subject to satisfaction of the original judgment when served with a writ of garnishment. Our conclusion is not influenced by any actual notice that appellant may have received in that “notice must be provided as an essential part of the statutory provision and not awarded as a mere matter of favor or grace.” Central of Georgia Ry. v. Wright, 207 U.S. 127, 138 (1907). In Gravett v. Marks, 304 Ark. 549, 801 S.W.2d 647 (1991), we considered Kennedy, supra, and other cases involving property seizure proceedings and stated:

We did not intend, in obiter dicta or otherwise, to suggest that a property seizure proceeding based on a statute which has been declared unconstitutional may succeed. We have held in many cases that “when a statute is declared unconstitutional it must be treated as if it had never been passed.” Green v. Carder, 276 Ark. 591, 637 S.W.2d 594 (1982); Huffman v. Dawkins, 273 Ark. 520, 622 S.W.2d 159 (1981); Morgan v. Cook, 211 Ark. 755, 202 S.W.2d 355 (1947). Actual notice is insufficient where a notice statute is constitutionally insufficient. Wuchter v. Pizzuti, 276 U.S. 13 (1928).

We reverse and dismiss.

Newbern, J. concurs.

Glaze and Brown, JJ., dissent.

David Newbern, Justice,

concurring. In Travelodge International, Inc. v. Handleman Nat. Book Co., 288 Ark. 368, 705 S.W.2d 440 (1986), a judgment creditor attacked pleadings and discovery responses filed by its garnishee. We held that Ark. R. Civ. P. 5(c), 10(a), 7(a), and 5(e) were inapplicable to pleadings in a garnishment proceeding because it is a special statutory action excepted from application of the Rules by Rule 81 (a). We wrote, “The procedures followed by the defendant-garnishee in this case were consistent with the garnishment statutes, and were thus appropriate.” In that case, however, we held that Rule 60(b) did apply to garnishment proceedings because there was nothing in the garnishment statutes dealing with the time in which a trial court may set its judgment aside.

In May v. Bob Hankins Distrib. Co., 301 Ark. 494, 785 S.W.2d 23 (1990), we held that the Rules govern service of a garnishment writ because Ark. Code Ann. § 16-110-402(2)(A) (Supp. 1989) specifically requires writs to be served in the same manner as writs of summons, which are now served in accordance with Rule 4. We wrote that that section of the garnishment law which governs the method of garnishment service on corporations, Ark. Code Ann. § 16-58-124 (1987), “does not fit into the exception described in . . . Rule 81(a),” and therefore, it must bow to a conflicting rule.

I fully agree with the result and rationale of the Court’s opinion in this case. The purpose of this concurring opinion is to point out the uneasy patchwork of rules and statutes with which parties must be familiar to pursue garnishment successfully. Confusion arises when we must say, as we did in the Travelodge case that several rules of procedure containing requirements not found in the garnishment statutes could be ignored and then to say, as we did in the earlier May case that a statute must yield to a rule because the statute does not fit into the exception described in Rule 81(a).

The point is that we have recognized that garnishment, generally, is one of those Rule 81 (a) special “instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.” The General Assembly may wish, when considering whether to add a notice provision to the statutory garnishment scheme, to expand the procedural provisions to alleviate the difficulties created by having to refer to both the rules and the statutes. Should that occur, our Committee on Civil Practice may wish to consider a recommendation on removing the reference to garnishment proceedings from Rule 4(k).

Tom Glaze, Justice,

dissenting. In ruling Arkansas’s Garnishment Code unconstitutional, the majority does not claim that no notice was given the appellant garnishee, See Armstrong v. Manzo, 380 U.S. 545 (1965); or that the notice effected here was not reasonably calculated to reach the appellant. Mullane v. Central Hanover Trust Co., 339 U.S. 306 (1950). The majority rests its decision on the narrow proposition that Arkansas law fails to provide “adequate” notice to the appellant of the nature of the garnishment proceedings against it. In my view, the law and the facts cannot support such a holding.

In Mullane, the Supreme Court stated that the fundamental requirement of due process in any proceeding requires that “notice must be of such nature as reasonably conveys the required information.” Arkansas law comports with this due process requirement, and in doing so, service of a writ of garnishment and required notice is served upon the garnishee in the same manner as a defendant is served with a summons and complaint under ARCP Rule 4. See Ark. Code Ann. § 16-110-402 (1987) and in particular see ARCP Rule 4(a), (b) and (k). We approved such service in garnishment cases in May v. Bob Hankins Distributor Co., 301 Ark. 494, 785 S.W.2d 23 (1990).

The form and service requirements in garnishment cases are the same as those set out in Rule 4(b) for the service of a summons and complaint. In other words, the defendant must be notified of the time within which he must appear, file a pleading and defend, and to further notify him that, if he fails to respond, a default judgment may be entered against him for the relief demanded in the complaint. Stated differently, Rule 4(k) requires the same type form and notice used for serving a complaint and summons in civil actions to be used also when serving writs of garnishments upon garnishees. Thus, Rule 4(b) and (k) merely implement Ark. Code Ann. § 16-110-407 (Supp. 1989), by notifying the garnishee in the writ served upon him that, if any garnishee fails to answer interrogatories served against him, the court shall enter judgment against the garnishee for the amount specified in the plaintiffs (creditor’s) judgment against the original defendant (debtor) or employee of the garnishee.

In compliance with Arkansas’s garnishment laws, the appellee here served her writ of garnishment and notice upon appellant by personal service through the Pulaski County Sheriffs Office. I attach a copy of that writ to the opinion for the reader’s review. That writ not only notified the appellant (garnishee) of the relief and amount of judgment that its employee (the original defendant debtor) owed appellee (original plaintiff creditor), but it likewise notified the appellant garnishee that if it failed to answer the writ or interrogatories, the court would enter a judgment against the garnishee for the full amount plus costs specified in the writ. Arkansas’s garnishment laws and the notice given here comply with those laws meeting requisite due process requirements. I fail to see how garnishee could be entitled to more information than that now provided by Arkansas law, and that information given appellant in this case. Appellant simply ignored that notice.

In conclusion, I am compelled to mention that the majority’s holding raises other questions that now must be addressed by either this court or the General Assembly — the initial question is which of these two bodies has the power to correct the so-called procedural or notice defect in Arkansas’s garnishment laws. In recent decisions, this court has held that it will give full effect to legislation in an area of procedure or practice that it has not preempted by rule and will defer to the General Assembly where a court rule conflicts with a public policy adopted by legislative act or as a part of the constitution. Lyons v. Forrest City Machine Works, Inc., 301 Ark. 559, 785 S.W.2d 220 (1990); St. Clair v. State, 301 Ark. 223, 783 S.W.2d 835 (1990); Curtis v. State, 301 Ark. 208, 783 S.W.2d 47 (1990). In Lyons, we stated that, by our adopting ARCP Rule 4, the court preempted the area of service of process, and because Act 401 of 1989 (a law dealing with service of process) deviated or conflicted with Rule 4, the court held Rule 4 controlling.

In the present case, this court, under Rule 4(k), seems to have preempted the service of writs of garnishment by providing such writs may be served in th¿ manner prescribed in Rule 4, which, of course, includes Rule 4(b) discussed above. Thus, it appears the constitutional defect (lack of sufficient notice) pointed out by the majority court in garnishment proceedings in a problem that needs to be corrected by this court. This conclusion, however, becomes somewhat murky in view of ARCP Rule 81 (a), which provides as follows:

(a) Applicability in General. These rules shall apply to all civil proceedings cognizable in the circuit, chancery, and probate courts of this State except in those instances where a statute which creates a right, remedy or proceeding specifically provides a different procedure in which event the procedure so specified shall apply.

In construing Rule 81 (a) in Travelodge International, Inc. v. Handelman Nat. Book Co., 288 Ark. 368, 705 S.W.2d 440 (1986), we stated that a garnishment proceeding is a special statutory action, and we then held ARCP Rules 5 (c), 10(a), 7 (a), and 5(e) were therefore inapplicable in that case. However, in the same case, we applied ARCP Rule 60(b) because, in the terms of Rule 81(a), the garnishment statutes did not provide for a procedure for setting aside a judgment.

As the majority opinion here mentions, Ark. Code Ann. § 16-110-402 (1987), albeit inadequate, provides for the service of writs of summons. That statute only provides for lawful service if you apply and construe Rule 4, to implement § 16-110-402, as Rule 4(k) specifically so provides. In any event, the question surfaces as to which remedial law or rule will control if both the General Assembly and this court enact or promulgate a statute or rule to correct the garnishee-notice problem the majority opinion says exists in Arkansas’s garnishment proceedings.

Having stated what I believe to be some of the problems that will arise due to the majority holding, I again reiterate my disagreement. I would affirm the trial court and uphold its ruling that the state’s garnishment statutes are constitutional. In adopting this view, the court would properly avoid the confusion that will surely follow this court’s decision.

Brown, J., joins this dissent.

       Appellant challenges the garnishment statutes, as they relate to notice to the garnishee, as they existed at the time the writs of garnishment were issued in this case. We note that the Arkansas Garnishment Statutes have been amended since that time.

       Act 463 of 1989 [now codified as Ark. Code Ann. § 16-110-407 (Supp. 1989)] limits such default judgment to the amount of nonexempt wages owed employee on date employer was served with writ.

       In applying Rule 4 to Arkansas’s garnishment laws in these circumstances, one should indulge their presumption of constitutionality — a longstanding principle of statutory construction which, I suggest, the majority court chooses to ignore in this case.


author: Donald L. Corbin, Justice. David Newbern, Justice,

text:
    Cathrine Faye BRANTLEY v. Ella C. DAVIS, Executrix of the Estate of Katherine Noble Smith
    90-300
    805 S.W.2d 75
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991

      Hardin and Grace, by: Ed Daniel IV, for appellant.

      Mays and Crutcher, by: Zimmery Crutcher, for appellee.
   Donald L. Corbin, Justice.

Appellant, Cathrine Faye Brantley, appeals the decision of the Probate Court of Pulaski County, Arkansas, which denied a motion to vacate a previous order dismissing a will contest with prejudice. We affirm.

The decedent, Katherine Noble Smith, died on June 23, 1989, a resident of Pulaski County, Arkansas. Appellant opened administration on the decedent’s estate and pursuant to her request as the sole heir at law, an order was entered approving her as the personal representative of the estate on July 24, 1989. On August 1, 1989, appellee, Ella C. Davis, proffered a document dated July 19,1988, as the last will and testament of the decedent and requested that she be named as executrix of the estate.

On August 7,1989, appellant filed a contest of will alleging that the proffered will was not valid. On August 30, 1989, the court admitted the will to probate, approved the appointment of appellee as executrix, and required the executrix to post a $50,000.00 surety bond. On November 30, 1989, appellant’s prior counsel filed a motion requesting that the contest of will be dismissed with prejudice pursuant to Ark. R. Civ. P. 41. On December 1, 1989, the probate court entered an order granting appellant’s motion and dismissing the contest of will with prejudice.

Appellant, with the services of new counsel, on February 27, 1990, filed a motion to set aside the December 1,1989 order under the authority of Ark. R. Civ. P. 60(b). On May 11, 1990, appellant filed a motion to vacate the December 1,1989 order for good cause pursuant to Ark. Code Ann. § 28-1-115(a) (1987). A hearing was held on June 28, 1990, and appellant proffered evidence in support of her motion that good cause existed for vacating the order of dismissal. Appellant proffered the testimonies of a handwriting expert and one of the witnesses to the will as well as other exhibits and documents relating that appellee exerted undue influence over the decedent and that the decedent lacked testamentary capacity. On July 12, 1990, the probate judge entered an order denying appellant’s motion to vacate the dismissal of her will contest. It is from this July 12, 1990 order that appellant appeals to this court.

Appellant raises three claims on appeal: 1) the trial court erred in holding that the order dismissing the will contest could not be vacated for good cause under section 28-1-115(a); 2) the trial court erred in refusing to consider proffered evidence as “good cause” within the meaning of section 28-1-115(a) and vacating the order dismissing appellant’s will contest; and 3) this court should review the proffered evidence de novo and invalidate the will due to lack of testamentary capacity and undue influence exercised upon the decedent by appellee, who is the majority beneficiary of the proffered will.

We consider appellant’s first two claims together. Appellant contends the probate court erred in refusing to vacate for good cause the order dismissing with prejudice the will contest pursuant to section 28-1-115(a), which provides:

(a) For good cause and at any time within the period allowed for appeal after the final termination of the administration of the estate of a decedent or ward, the court may vacate or modify an order or grant a rehearing. However, no such power shall exist as to any order from which an appeal has been taken or to set aside the probate of a will after the time allowed for contest thereof.

Appellant maintains that a study of this statute requires that she prevail in her endeavor to vacate the order dismissing with prejudice the contest of the will. She urges this is particularly true when one reads the case of Price v. Price, 258 Ark. 363, 527 S.W.2d 322 (1975), involving a challenge to the allotment of dower. There, appellee alleged that appellants were barred from contesting the confirmation of an allotment of dower by the passage of 90 days after the order approving the commissioner’s report. The Price court ruled “the fact that appellants did not appeal from the order approving the commissioner’s report prior to the probate court’s final order, even though they might have done so, does not constitute a bar to the present appeal.” Id. at 376, 527 S.W.2d at 330. To support this ruling, Price relied on Ark. Stat. Ann. § 62-2015 (Repl. 1971), now codified as Ark. Code Ann. § 28-1-115(a), which states in part:

For good cause, at any time within the period allowed for appeal after the final termination of the administration of the estate of a decedent or ward, the court may vacate or modify any order, or grant a rehearing thereon; except that no such power shall exist as to any order from which an appeal has been taken, or to set aside the probate of a will after the time allowed for contest thereof.

She further maintains that Carpenter v. Horace Mann Life Ins. Co., 21 Ark. App. 112, 730 S.W.2d 502 (1987), a Court of Appeals case, is factually similar to the case at bar. There, the parties in contention signed an “Agreed Order Probating Will and Appointing Personal Representative.” The appellant argued this order admitted the will to probate on an implied finding by the court that the testator was competent and acting without undue influence, fraud or restraint. The appellant contended that since no appeal was taken from these findings, the issues were res judicata. The trial court denied appellant’s motion for summary judgment and held that:

[T]he express language of the above order admitted the will “conditionally,” that issues involved in the will contest were reserved, and that the conduct of the parties in continuing to participate in the probate case by filing pleadings and briefs belied the assertion that the order admitting the will to probate disposed of the probate case once and for all.

Id. at 119, 730 S.W.2d at 505.

The Court of Appeals relied on the language of section 62-2015 to affirm the trial court stating, “even if the court had felt the order was res judicata on the validity of the will, it could have vacated its . . . order because the probate case was still open.” Carpenter, supra, 21 Ark. App. at 119, 730 S.W.2d at 506. We note that perhaps the key consideration of this decision as it relates to the case at bar may be the observation that “[i]t seems clear that the order recognized that the will was being contested and it was admitted to probate conditionally, while expressly reserving for a future trial on the merits the issue of who would ultimately receive the benefits of the estate.” Id. at 119, 730 S.W.2d at 506.

The statute in question and the cases of Price, supra, and Carpenter, supra, are authority for the probate court in the instant case to consider appellant’s motion to vacate the order dismissing the will contest; however, a roadblock to appellant’s efforts to vacate the order of dismissal with prejudice and renew her contest of the will is the case of Screeton v. Crumpler, 273 Ark. 167, 617 S.W.2d 847 (1981). In Screeton, we found the probate judge did not abuse his discretion in dismissing appellant’s contest of a will for want of good faith prosecution. The Screeton decision was predicated on a finding that appellant had been granted two trial date continuances, as well as two continuances for the taking of discovery depositions, and did not even appear at a hearing on a motion to dismiss. This ruling was justified by our recognition that a proceeding to probate a will is a special proceeding, not an “action” as that term is ordinarily used, and does not constitute a civil action within Ark. R. Civ. P. 2 and 3. The opinion went on to observe that a “will contestant cannot take a nonsuit under Rule 41 [of the Arkansas Rules of Civil Procedure], because such a contest is not an independent proceeding in itself.” Screeton, 273 Ark. at 169-70, 617 S.W.2d at 849. The court opined that “[i]t would seriously disrupt the administration and distribution of estates if a will contest could be dismissed, voluntarily or without prejudice, and refiled at some indefinite later date.” Id. at 170, 617 S.W.2d at 849. Thus, in Screeton, the dismissal in the probate court was necessarily with prejudice. Noticeably absent from the Screeton decision is any reference to the statute, or its predecessor, section 62-2015, relied on by appellant in the case at bar.

The probate judge in the instant case, although apparently feeling that appellant’s proffered evidence might go to the rejection of the will, felt constrained because of Screeton, supra, to deny appellant’s motion to vacate its earlier order of dismissal with prejudice. The probate judge concluded that any newly discovered evidence must go to the issues involved in the motion to vacate and not to the issues involved in the will contest itself. Thus, based on Screeton, supra, the probate court felt that a dismissal of a will contest was necessarily with prejudice and thus, the court determined it was without authority to vacate its prior order, with or without good cause, once the will contest had been dismissed with prejudice. Here, the appellant is charged with the responsibility of knowing the consequences of her action in voluntarily seeking a Rule 41 dismissal with prejudice. She had other options that she could have pursued before taking such a final and conclusive step.

The principle of orderly maintenance of an estate, which was enunciated in Screeton, supra, applies to this case. The probate court’s dismissal of appellant’s will contest was necessarily with prejudice. Any reconsideration of the dismissal must therefore relate to the dismissal itself and not to the merits of the will contest. While appellant points out “newly discovered” evidence that a claim of undue influence and lack of testamentary capacity may exist in this case, appellant offers no explanation why this evidence was not discovered prior to the dismissal. See Ark. R. Civ. P. 60(c)(1). The record is thus void of any evidence for our review of whether good cause exists to vacate the dismissal pursuant to section 28-1-115(a). Accordingly, we affirm the probate court’s ruling denying appellant’s motion to vacate the dismissal with prejudice of the will contest.

Appellant’s third claim on appeal, that we should review the claims of undue influence and lack of testamentary capacity de novo, is rendered moot by our determination of the first issue.

Affirmed.

Holt, C.J., and Newbern, J., concur.

Brown, J., not participating.

David Newbern, Justice,

concurring. While I agree with the result reached by the Court’s opinion, I do not believe it should have relied on Screeton v. Crumpler, 273 Ark. 167, 617 S.W.2d 847 (1981). As the Court’s opinion states, the Screeton opinion does not mention the applicable statute, Ark. Code Ann. § 28-1-115 (1987). Apparently the statute, which was in effect at the time was not cited to the Court which was unaware of it. Had the statute been at issue in that appeal it probably would have been decided differently.

Subsection (b) of the statute, not cited in the majority opinion, is as follows: “No vacation or modification under this section shall affect any act previously done or any right previously acquired in reliance on such order or judgment.” The General Assembly was apparently aware of the disruption which could be caused by reopening but chose to provide for it with some protection of persons whose rights might be affected.

The question here should be limited to whether the probate judge abused his discretion in finding no good cause to allow refiling of the will contest. In my view, there was no abuse.

Holt, C.J., joins in this concurrence.


author: Donald L. Corbin, Justice.

text:
    W.T. GARRETT and Carolyn Garrett v. AMERICAN FIDELITY ASSURANCE COMPANY
    91-26
    805 S.W.2d 78
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991
    [Rehearing denied April 15, 1991.]

      John I. Purtle, for appellants.

      Mitchell, Williams, Selig and Tucker, by: Sherry P. Bartley, for appellee.
   Donald L. Corbin, Justice.

Appellants, W.T. Garrett and his wife, Carolyn Garrett, appeal a decision by the trial court which they claim erroneously construed a group policy insurance provision so as to deprive them of their complete benefits. We affirm.

Appellants first contend the trial court erred in applying the provisions of Ark. Code Ann. § 23-86-111 (1987) as amended by Act 702 of 1981. The record belies appellants’ position in this regard. The record clearly indicates that trial counsel for appellants argued for the application of Act 806 of 1979 and that the trial court applied the 1979 Act in reaching its decision. This court in Provident Life & Accident Ins. Co. v. Toran, 288 Ark. 63, 702 S.W.2d 10 (1986) construed Act 806 of 1979 as not prohibiting an insurance company from enforcing a provision in its group disability insurance policy which reduced the benefits payable to an insured by the amount of the Social Security payments the insured received. Act 806 of 1979 defined the term “other like insurance” as:

“The term ‘other like insurance’ may include group or blanket disability insurance or group coverage provided by Hospital and Medical Service Corporations, government insurance plans, union welfare plans, employer or employee benefit organizations, or Workmen’s Compensation Insurance or no-fault automobile coverage provided for or required by any statute.”

In Provident we noted that, although the 1975 Act was at issue in Milldrum v. Travelers Indemnity Co., 285 Ark. 376, 688 S.W.2d 271 (1985), we inadvertently quoted language contained in Act 806 of 1979, an amended version of the same Act. In Provident we went on to say that the only change from the 1975 Act interpreted in Milldrum was the addition of “governmental insurance plans” in the list of prohibitions covered by the statute. We affirmed our holding in Milldrum that “enumeration of various private insurance plans as constituting ‘other like insurance’ by implication excludes from the prohibition governmental social programs such as Social Security benefits.” We found that the addition of “government insurance plans” in Section 1 of the Act did not affect the statute as to Social Security benefits and allowed, as in Milldrum, the insurance company to reduce the payment of benefits to the insured by the amount of Social Security benefits.

We see no reason to reverse ourselves, particularly so in the face of the obverted argument by appellants’ counsel that the Milldrum case held that clearly Social Security payments for disability were not like other insurances and therefore could not be used to reduce group policy disability benefits. We note that just the opposite result was reached and controls the disposition of the issue before us.

Appellants next argue, in the event we find no merit in their first contention, that the trial court erred in computing the amount owed to them under the policy. Appellants claim they are entitled to $2,400.00 ($400.00 per month x 6 months) for the first six months and $2,200.00 ($50.00 per month x 44 months) for the next forty-four months, a total of $4,600.00 being due. However, appellants’ trial counsel agreed to a document introduced as Joint Exhibit No. 2 at trial. Joint Exhibit No. 2 provides that $2,085.00 (total amount due under the policy obligation of $3,431.67 less $1,346.67 in benefits previously paid) is the amount due should the trial court find that after the first six months of disability, the policy allows a reduction in benefits to the minimum benefit of $50.00 per month. The trial court in its “Conclusions of Law” relied on Milldrum, supra, and Provident, supra, for the rule that “benefits received by an insured under a group policy of disability insurance can be reduced by the amount of Social Security payments the insured is entitled to receive because of his disability.” The trial court found appellant to be entitled to $2,085.00. Appellants, by agreeing to and offering Joint Exhibit No. 2, waived any right to question the computation of benefits. See Mine Creek Contractors v. Grandstaff, 300 Ark. 516, 780 S.W.2d 543 (1989); Geary v. Kirksey, 234 Ark. 325, 351 S.W.2d 846 (1961).

Finally, appellants contend if the court agrees with their first point for reversal, the case must be remanded with directions to the trial court to determine the amount of attorney’s fees to be awarded, unless this court determines the amount of such attorney’s fees.

We do not agree with appellants’ first point for reversal. Furthermore, we find no merit in appellants’ assertion that this court’s holding in Miller’s Mutual Ins. Co. v. Keith Smith Co., 284 Ark. 124, 680 S.W.2d 102 (1984) requires that penalty, interest, and attorney’s fees be granted in accordance with Ark. Code Ann. § 23-79-208 (1987), even if appellee confessed judgment.

This court, in Miller, held that where an insurance company had a reasonable opportunity to pay the correct amount owed but refused to do so, even though it later confessed judgment, the statutory penalty and attorney’s fees would be allowed. The instant case is distinguishable from Miller in that appellee confessed judgment before appellants ever reduced their claim to the correct amount. It was only after appellee confessed judgment to a $50.00 per month benefit that appellants amended their complaint to seek that amount. In this amended complaint, besides the reduced amount, appellants still claimed, alternatively, an amount in excess of the correct amount.

This court held in Cato v. Arkansas Mun. League Mun. Health Benefit Fund, 285 Ark. 419, 688 S.W.2d 720 (1985), a case similar in this regard to the case at bar, that where an insurance company confessed judgment in the correct amount before the claimant filed an amended complaint asking for the correct amount, the statutory penalty and attorney’s fees did not attach.

Based on the foregoing, we cannot say the trial court erred in denying appellants’ claim for penalty, interest, and attorney’s fees.

Affirmed.


text:
    Bradley James REAGAN v. CITY OF PIGGOTT, Arkansas, d/b/a Piggott Community Hospital, and Dr. Myra Anders Ash
    91-31
    805 S.W.2d 636
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991
    [Rehearing denied April 15, 1991.]

      Gus R. Camp, for appellant.

      Barrett, Wheatley, Smith & Deacon, by: Lucinda McDaniel, for appellees.
   Donald L. Corbin, Justice.

This appeal is from a judgment of the Clay County Circuit Court granting summary judgment in a medical malpractice suit. Appellant, Bradley James Reagan, initiated this action for medical malpractice against appellees, Dr. Myra Anders Ash and the City of Piggott, Arkansas, d/b/a Piggott Community Hospital. Appellant went to the emergency room at Piggott Community Hospital on April 21, 1985, complaining of abdominal pain, cramping, vomiting, and loose bowel movements. Appellee Dr. Ash examined appellant and gave him an injection for nausea. Dr. Ash diagnosed appellant with gastroenteritis and told him to return to the hospital if he did not improve and to see his family physician the next day. On April 22, 1985, appellant saw his family physician, Dr. Hillard Duckworth, who ordered an appendectomy which confirmed an infected appendix. Appellant subsequently brought suit against Dr. Ash and the hospital for negligence in failing to diagnose appendicitis. Appellees moved for summary judgment on the grounds that appellant had no expert testimony to establish either the standard of care or the failure of Dr. Ash to meet that standard of care. The trial court granted the motion for summary judgment and appellant appeals from that decision. We affirm.

On appeal, appellant argues the trial court erred in granting summary judgment and in holding that expert testimony was required to meet his burden of proof. Appellant further alleges that portions of the Arkansas Medical Malpractice Act are unconstitutional.

Appellant claims the trial court erred in granting the summary judgment because, under the proof presented, a question of fact exists as to Dr. Ash’s negligence in failing to diagnose appellant’s appendicitis. In reviewing motions for summary judgment, the burden is on the moving party to demonstrate there is no genuine issue of fact for trial. Clemens v. First Nat’l Bank, 286 Ark. 290, 692 S.W.2d 222 (1985). The evidence submitted in support of the motion is viewed most favorably to the party against whom the relief is sought. Id.

In granting summary judgment, the trial court found that in a case involving the diagnosis of appendicitis, expert medical testimony is essential to establish the standard of care required of the diagnosing physician and that the physician failed to act in accordance with that standard. The court further found that appellant identified no medical expert in his answers to interrogatories or in his argument at the hearing on the motion for summary judgment. The court concluded that, absent testimony by a medical expert, appellant had not met his burden of proof and no issue of fact existed for trial. We cannot say the trial court erred.

Ark. Code Ann. § 16-114-206 (1987) provides:

(a) In any action for medical injury, the plaintiff shall have the burden of proving:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality;
(2) That the medical care provider failed to act in accordance with that standard; and
(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.

It is well settled that a plaintiff must meet this burden of proof by presenting expert testimony when the asserted negligence does not lie within the jury’s comprehension as a matter of common knowledge. Prater v. St. Paul Ins. Co., 293 Ark. 547, 739 S.W.2d 676 (1987); David v. Kemp, 252 Ark. 925, 481 S.W.2d 12 (1972); Lanier v. Trammell, 207 Ark. 372, 180 S.W.2d 818 (1944).

In this case, appellant presented neither expert nor lay testimony as to the appropriate standard of care to be used. Likewise, appellant did not present any evidence that Dr. Ash failed to act in accordance with the standard of care. The only evidence appellant did offer relating to a standard of care or breach thereof was the testimony of Dr. Duckworth, appellant’s family physician who ordered the appendectomy. Without stating exactly what the appropriate standard of care was, Dr. Duckworth testified that Dr. Ash acted in accordance with the standard of care. The only other evidence offered by appellant consisted of the depositions of appellant and his parents; these depositions contained broad statements about the incident but related nothing about a standard of care or breach thereof.

In short, appellant presented no evidence indicating the existence of an issue of fact. To the contrary, the expert testimony presented does not meet the statutory burden of proof. Dr. Duckworth, whom appellant listed as his expert medical witness in answers to interrogatories, stated in his affidavit:

The diagnosis made by Dr. Ash and the instructions given by her on the morning of April 21, 1985, in my opinion, were in accord with the degree of skill and learning ordinarily possessed and used by members of the medical profession in good standing engaged in a similar practice, in Piggott, Arkansas, or in a similar locality.

Dr. Duckworth testified in his deposition:

Q. But at the time that Dr. Ash saw Bradley Reagan you believe that she exercised the degree of skill required at that time?
A. Yes, at that time.

We need only to decide if the granting of summary judgment was appropriate based on whether the evidence presented in support of the motion left a material question of fact unanswered. Barraclough v. Arkansas Power and Light Co., 268 Ark. 1026, 597 S.W.2d 861 (1980). Once the moving party makes a prima facie showing of entitlement of summary judgment, the opposing party must meet proof with proof by showing a genuine issue as to material fact. Hughes Western World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980). We can find no testimony that creates an issue of fact requiring presentation of this case to a jury. We cannot say the trial court erred and we therefore affirm the granting of summary judgment.

Appellant asserts that parts of the Arkansas Medical Malpractice Act are unconstitutional. Specifically, appellant challenges Ark. Code Ann. §§ 16-114-206 to -208 (1987) as special or class legislation. Appellant argues these statutes give medical care providers and insurance carriers certain privileges not otherwise available to other persons. Appellee responds that appellant has no standing to challenge these sections of the Medical Malpractice Act as they were not applied so as to injure appellant. Appellee also points out appellant’s failure to notify the Attorney General as required by Ark. Code Ann. § 16-111-106 (1987).

We agree that appellant’s constitutional claims cannot be heard. Section 16-111-106 requires that the Attorney General be notified of any declaratory judgment action involving a constitutional challenge to any statute. It is generally reversible error when the Attorney General fails to receive notice of a constitutional attack on a statute. Olmstead v. Logan, 298 Ark. 421, 768 S.W.2d 26 (1989); City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 29 (1982), cert. denied, 462 U.S. 1111 (1983). This general rule has not been applied in some exceptional circumstances, those being where all the issues have been briefed and argued by litigants who are clearly adversarial. This case is not such an exceptional situation. Although appellant did argue his constitutional claim to the trial court, the record does not reveal that either the Attorney General was notified of the state’s right to be represented in the proceeding, or that the issues were otherwise adequately argued or briefed by truly adversarial parties. Therefore, we do not consider the constitutional challenge on this appeal.

Affirmed.


author: Robert L. Brown, Justice.

text:
    CAR TRANSPORTATION, Cliff Riggins, Don England and Shirley Faye Ann Henslin v. GARDEN SPOT DISTRIBUTORS, Better Foods Foundation, Inc. and California Natural Products
    91-28
    805 S.W.2d 632
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991

      Woodruff and Green, by: Ronald G. Woodruff, for appellants.

      Davis, Cox, and Wright, by: Paul H. Taylor, for appellees.
   Robert L. Brown, Justice.

Appellants Car Transportation (a trucking business in Springdale, Arkansas), Cliff Riggins, Don England, and Shirley Faye Ann Henslin (collectively referred to as “motor carrier”) appeal an order for partial summary judgment entered against the motor carrier for conversion of goods and in favor of appellees Garden Spot Distributors, Better Foods Foundation, Inc., and California Natural Products (“buyers”). The motor carrier further appeals an order denying reconsideration and an order for damages following a jury trial on that issue.

The facts involve multiple parties in multiple states. In November 1987 the buyers, doing business in California, New York, and Pennsylvania, contracted with De Sal Enterprises, Inc. (also called D & L Trucking), a California business, through its principals. Nick and Sandy Lisella (“sellers”) for the purchase of food products. The motor carrier agreed to transport the goods and thereafter loaded them in California on November 20,1987. While in transit to the east coast, the truck broke down in Arkansas, according to the motor carrier. At that time the motor carrier discovered that the sellers owed it money (approximately $9,000) for previous trucking services provided in 1983 and 1984. The motor carrier demanded payment of $ 15,000 from the sellers to repair the truck. After negotiations between the sellers and the motor carrier, the sellers refused payment, whereupon the motor carrier refused to deliver the goods to the buyers and stored them in its place of business in Springdale, Arkansas. Two of the buyers, Garden Spot Distributors and Better Foods Foundation, Inc., had paid the seller for the goods in advance. The third buyer, California Natural Products, had ordered the goods from the. sellers for a customer on the east coast. When delivery was not made to that customer, the customer rescinded the contract.

The buyers argue that they demanded the goods from the motor carrier in Springdale. The buyers did not, however, tender payment to the motor carrier for the current freight charges. Nor did the motor carrier specifically demand payment of those charges from the buyers.

The buyers filed suit for conversion against the motor carrier and later filed a motion for partial summary judgment on the liability issue, which the trial court granted by an order entered on November 21, 1988, following a hearing. The motor carrier then filed a motion to set aside the court’s order, which was denied by letter opinion on January 25, 1989, and by formal order on February 7, 1989. On March 30, 1990, after instructions by the trial court, the jury awarded total damages to the buyers of $20,340.30 plus interest and costs.

The motor carrier argues on appeal that summary judgment was inappropriate because certain material facts remained to be determined under ARCP Rule 56(c). The motor carrier further argues that a proximate cause instruction should have been given to the jury prefatory to its deliberation on damages.

We do not agree, and we affirm the trial court on all points.

In support of its argument that material fact questions were left to be resolved, the motor carrier points to three unanswered factual issues: 1) who owned the goods while they were in transit; 2) was the motor carrier entitled to a lien on the goods for past or present freight charges; and 3) did the motor carrier intend to convert the goods.

Historically, summary judgment has been deemed an extreme remedy which is only granted when no issue of material fact remains for decision. See Township Builders, Inc. v. Kraus Constr. Co., 286 Ark. 487, 696 S.W.2d 308 (1985). Moreover, when summary judgment is sought, all evidence presented in support of the motion must be viewed in the light most favorable to the non-moving party. See Pinkston v. Lovell, 296 Ark. 543, 759 S.W.2d 20 (1988). At the same time, Rule 56(c) clearly provides that when the pleadings and affidavits show there is no issue regarding any material fact, the movant is entitled to judgment as a matter of law.

The motor carrier vigorously argues that the trial court failed to decide ownership of the goods in transit, which was a material fact question pertinent to the ultimate disposition of this case. The specific factual dispute, according to the motor carrier, was whether ownership in the goods was transferred to the buyers immediately upon delivery to the motor carrier under a consignment theory or by virtue of the bills of lading, or whether ownership remained in the sellers until final delivery to the buyers in New York and Pennsylvania. The buyers asserted by affidavits that it was understood that title transferred to them upon delivery of the goods to the motor carrier. The motor carrier, on the other hand, countered that the sellers had informed it that title remained in the sellers until delivery to the buyers.

The trial court made no determination of ownership, and we do not do so today, because ownership is not always an essential element in finding a common law conversion. We recently affirmed our long-standing definition of conversion as “the exercise of dominion over property in violation of the rights of the owner or person entitled to possession.” City National Bank v. Goodwin, 301 Ark. 182, 187, 783 S.W.2d 335, 337 (1990). Whether ownership rests in the sellers or buyers is not the critical factor, since the definition of those wronged by conversion also includes persons entitled to possession. It is undisputed that the motor carrier, irrespective of its dispute with the sellers, was withholding delivery of goods which ultimately belonged to the buyers. Accordingly, when the motor carrier withheld the goods from the buyers, it converted those goods as readily as if it had appropriated goods which clearly belonged to another. Because we hold again today that withholding goods from those entitled to possession constitutes conversion, it is not necessary for us to address the other issues relating to ownership which were raised by the motor carrier in its appeal.

The next question of fact arguably left unresolved by the trial court relates to the motor carrier’s lien defense. Boiled down, the argument advanced is the motor carrier legitimately had the right to assert a lien against the goods shipped for a debt due a) from the sellers for past services; and b) from the buyers and sellers for current freight charges. Not only could it assert a lien under the motor carrier’s theory, but it could enforce the lien by self-help, that is, by storing the goods in Arkansas until payment was made.

The motor carrier, however, did not plead a lien defense in its answer to the buyers’ complaints. It is true that in answers to interrogatories the motor carrier made reference to a past debt owed by the sellers. But this falls far short of raising an affirmative defense. Furthermore, a lien on presently transported goods for a prior debt is not contemplated under the Uniform Commercial Code:

(1) A carrier has a lien on the goods covered by a bill of lading for charges subsequent to the date of its receipt of the goods for storage or transportation (including demurrage and terminal charges) and for expenses necessary for preservation of the goods incident to their transportation or reasonably incurred in their sale pursuant to law.

Ark. Code Ann. § 4-7-307(1) (1987). [Emphasis ours.]

If a lien defense is available to the motor carrier, it can only be asserted against currently transported goods for current freight charges that remain unpaid. Again, there is a question of whether the motor carrier effectively raised such a lien defense. During the hearing on partial summary judgment, counsel for the motor carrier specifically stated that the motor carrier was not claiming a lien on the goods:

The Court: Well, are you claiming a lien, you mean? Counsel: No, we’re not claiming a lien, your Honor; we’re claiming they [the goods] belong to somebody else. The guy we got them from told us they belonged to him.

It was only after the trial court had entered its order for partial summary judgment on November 21, 1988, that the motor carrier made the argument that it could withhold the goods for payment of freight charges. The argument was made in a brief which accompanied the motor carrier’s Rule 60 motion to set aside the trial court’s summary judgment order.

The trial court denied the motion to set aside by letter opinion on January 25,1989. The motor carrier then filed a letter with brief attached on January 31,1989, which fleshed out its lien defense theory in more detail. The trial court, however, entered its formal order denying the motion to set aside on February 7,1989.

The trial court did not abuse its discretion in refusing to set aside the summary judgment order based on the lien theory advanced. It is clear that the motor carrier’s dispute for payment of freight charges was with the sellers, not the buyers. A sudden assertion of a lien against the goods, midway en route, to resolve a dispute between the motor carrier and another party cannot justify converting property which has been purchased by the buyers. Prosser supports this conclusion in his discussion of withholding possession of goods in the conversion context:

An unqualified refusal to surrender, stating no reason, or one stating the wrong reason, is still a conversion, even where there are unstated justifications. And if the defendant insists upon charges, or other conditions of delivery, which he has no right to impose, there is conversion.

Prosser and Keaton On Torts, § 15, p. 100 (5th Ed. 1984). Under these circumstances the motor carrier had no right to withhold the goods from the buyer.

It is further clear that the time to claim payment is in advance of the shipment or upon delivery at point of destination. The motor carrier admits this in its argument and cites authority to support this principle. See Wadley Southern Railway Co. v. Georgia, 235 U.S. 651 (1915). Moreover, the federal code supports the premise that destination is the time when payment issues should be resolved:

(a) Except as provided in subsection (b) of this section, a common carrier (except a pipeline or sleeping car carrier) providing transportation or service subject to the jurisdiction of the Interstate Commerce Commission under this subtitle shall give up possession at destination of property transported by it only when payment for the transportation or service is made.

49 U.S.C. § 10743(a) (1982).

Accordingly, with respect to the buyers no lien claim existed against the goods in mid-transit, and no fact issue relating to the buyers’ action for conversion remained to be resolved.

There is finally the issue of wrongful intent to convert and whether failure to decide this issue is fatal to the summary judgment order. Again, we refer to City National Bank v. Goodwin, supra. There, we quoted from Prosser: “Conversion can only result from conduct intended to affect property. . . . The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the plaintiffs rights.” 301 Ark. at 187-188; 783 S.W.2d at 337-338.

Conscious wrongdoing is not the requisite intent for conversion, according to Prosser and the Goodwin case. What is required is the intent to exercise control or dominion over goods. In the Goodwin case, for example, we affirmed an award for damages where the bank did not wrongfully or maliciously convert a customer’s bank account but mistakenly took funds from the wrong account. Similarly, in the present case the motor carrier took control over the goods in question and stored them at its Springdale business as security for payment of the freight charges. The intent to take control and withhold delivery is clear and unmistakable. Whether the motor carrier specifically intended to convert the property of the buyers is simply not an issue.

The motor carrier also contests the failure of the trial court to give several instructions to the jury on proximate cause for damages. We find that the trial court properly excluded these instructions. The court said in its ruling, and we agree, that “damages naturally flow from a conversion.” Stated a different way, proximate causation is not an element for the jury to find prior to awarding damages for conversion. Compensatory damages resulting from the conversion were appropriate for the jury to consider, as the trial court instructed.

Finding no abuse of discretion, we affirm.

Affirmed.


author: Per Curiam.

text:
    Earl Ray NEIGHBORS v. STATE of Arkansas
    RC 90-69
    804 S.W.2d 728
    Supreme Court of Arkansas
    Opinion delivered March 18, 1991

      J. F. Atkinson, Jr., for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Earl Ray Neighbors, by his attorney, has filed for a rule on the clerk.

His attorney, J.F. Atkinson, Jr., admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Robert H. Dudley, Justice.

text:
    Jeffrey L. RIDENHOUR v. STATE of Arkansas
    CR 91-39
    805 S.W.2d 639
    Supreme Court of Arkansas
    Opinion delivered March 25, 1991

      Ernie Witt, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Jeffrey Ridenhour, was arrested on December 23, 1988, and charged by police citation with driving while intoxicated. On September 13, 1989, he filed a motion to dismiss on the ground the arresting officer did not meet the required minimum standards, and, therefore, any action taken by him was invalid. Before the motion was ruled upon, Act 44 of 1989 became law. That act provides that action taken by non-qualified officers “shall not be held invalid.” The act expressly applies to pending cases. The trial court denied appellant’s motion to dismiss, and appellant was found guilty. The sole issue raised by this appeal is whether the retroactive application of Act 44 of 1989 violates the Ex Post Facto Clauses of the United States and Arkansas Constitutions. We hold that the act is not a violation of the ex post facto doctrine.

The officer who issued the citation did not meet the minimum qualifications. Further, the citation was the only instrument charging appellant with the offense of driving while intoxicated. Prior to the enactment of Act 44 of 1989, Ark. Code Ann. § 12-9-108(a) (1987), provided that any action taken by an officer who did not meet the minimum standards and qualifications “shall be held as invalid.” We interpreted the statute in Grable v. State, 298 Ark. 489, 769 S.W.2d 9 (1989) and Mitchell v. State, 298 Ark. 536, 769 S.W.2d 18 (1989). The holdings of those cases made it clear that when a police officer was not qualified at the time of an arrest, and the defendant’s subsequent conviction was based solely on a citation issued by that officer, the charging instrument was invalid and any conviction based on it would also be held invalid.

In reaction to our holdings in Grable and Mitchell, the General Assembly enacted Act 44 of 1989. Act 44 amended Ark. Code Ann. § 12-9-108(a) to provide that actions taken by non-qualified officers “shall not be held invalid merely because of the failure to meet the standards and qualifications.” The Act expressed the legislature’s intention that the amendment apply to any pending cases. Additionally, it was enacted with an emergency clause. Consequently, Ark. Code Ann. § 12-9-108(a) was amended effective November 8, 1989, prior to the trial court’s order denying appellant’s motion to dismiss. Appellant’s argument that the application of Act 44 to his situation violates the Ex Post Facto Clauses of the United States and Arkansas Constitution is therefore squarely before this Court.

Article 1, § 10 of the United States Constitution provides that, “No state shall. . . pass any... ex post facto law. . . .” That clause has most recently been interpreted by the United States Supreme Court in Collins v. Youngblood, No. 89-742 (U.S. S. Ct. June 21, 1990). The Collins case is significant because it clearly limits the types of situations which will constitute violations of the Ex Post Facto Clause.

In Collins, the defendant was convicted of aggravated sexual abuse. He was sentenced to life imprisonment and fined $10,000. On a writ of habeas corpus in state district court he argued that the Texas code did not authorize both a fine and a term of imprisonment, and, consequently, his judgment of conviction and sentence were void under the authority of a Texas case styled, Bogany v. State. The state district court recommended that the writ be granted. The Texas Court of Criminal Appeals had the exclusive power to grant such writs, but before they considered the application for the writ, a new Texas statute was enacted which allowed an appellate court to reform an improper verdict. Relying on that statute, the Court of Criminal Appeals reformed the verdict by dropping the fine, and denied the defendant’s request for a new trial. The defendant then sought habeas relief in the United States District Court arguing that the retroactive application of the statute violated the Ex Post Facto Clause of the Constitution. The United States District Court concluded that there was no ex post facto violation because the punishment was not increased, and the elements of the offense or the ultimate facts necessary to establish guilt were not changed. The Fifth Circuit Court of Appeals reversed, however, holding that the defendant’s right to a new trial under the Bogany case was a “substantial protection” which the retroactive application of the new Texas statute abrogated, thus violating the Ex Post Facto Clause. On those facts, the United States Supreme Court granted certiorari and held that the retroactive application of the statute did not violate the Ex Post Facto Clause.

In tracing the history of the Ex Post Facto Clause, the Court relied heavily upon two early cases, Calder v. Bull, 3 Dall. 386 (1798) and Beazell v. Ohio, 269 U.S. 167 (1925). In Calder, Justice Chase set forth the types of legislative acts which in his view implicated the core concern of the Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender.

In Beazell, the Court explained:

It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.

(Emphasis added.)

The Collins Court explained that, “The Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” Collins, No. 89-742, slip op. at 5 (U.S.S. Ct. June 21, 1990). The Court noted that subsequent cases had discussed the issue in terms of “procedural” versus “substantive” rights, and that using language such as “affect[ing] matters of substance,” “substantial protections with which the existing law surrounds the person accused of crime,” and “substantial personal rights,” has imported confusion into the interpretation of the Ex Post Facto Clause, id. at 7, and “should not be read to adopt without explanation an undefined enlargement of the Ex Post Facto Clause.” Id. at 9.

The Collins Court concluded that “the best way to make sense out of [such] discussion [s] in the cases is to say that by simply labelling a law ‘procedural,’ a legislature does not thereby immunize it from scrutiny under the Ex Post Facto Clause.” Id. at 8. The Court then overruled two of its cases to the extent that they expanded the scope of the Ex Post Facto Clause beyond that discussed in Collins.

In overruling Kring v. Missouri, 107 U.S. 221 (1883), the Court discussed the meaning of the term “defense” as it is used in the Beazell formulation of ex post facto violations. The discussion is particularly pertinent to the case at hand because, using the broadest sense of the word, the fact that appellant was arrested and charged by a non-qualified officer would be a “defense.” Collins makes it clear, however, that for purposes of the Ex Post Facto Clause, the term “defense” does not stretch that far:

This analysis [in Hall] is consistent with the Beazell framework. A law that abolishes an affirmative defense of justification or excuse contravenes Art. I, § 10, because it expands the scope of a criminal prohibition after the act is done.
* * *
It is possible to reconcile Kring with the numerous cases which have held that “procedural” changes do not result in ex post facto violations by saying that the change in Missouri law did take away a “defense” available to the defendant under the old procedure. But this use of the word “defense” carries a meaning quite different from that which appears in the quoted language from Beazell, where the term was linked to the prohibition on alterations in “the legal definition of the offense” or “the nature or amount of the punishment imposed for its commission.” . . . The “defense” available to Kring under earlier Missouri law was not one related to the definition of the crime, but was based on the law regulating the effect of guilty pleas. Missouri had not changed any of the elements of the crime of murder, or the matters which might be pleaded as an excuse or justification for the conduct underlying such a charge; it had changed its law respecting the effect of a guilty plea to a lesser included offense. The holding in Kring can only be justified if the Ex Post Facto Clause is thought to include not merely the Calder categories, but any change which “alters the situation of a party to his disadvantage.” We think such a reading of the Clause departs from the meaning of the Clause as it was understood at the time of the adoption of the Constitution, and is not supported by later cases.

Id. at 11-12 (emphasis added).

Similarly, in the instant case, the retroactive application of Act 44 does not violate the Ex Post Facto Clause because it does not punish as a crime an act previously committed, which was innocent when done. It does not make more burdensome the punishment for a crime, after its commission. It does not alter a legal rule of evidence to receive less or different testimony than was required at the time of the commission of the offense. Finally, it does not deprive appellant of any defense available according to law at the time when the act was committed.

Art. 2, § 17 of the Constitution of Arkansas similarly provides, “No ... ex post facto law . . . shall ever be passed; . . . .” The appellant does not offer any argument, and none is readily apparent to us, showing why we should interpret the ex post facto doctrine in a manner different than that of the Supreme Court of the United States.

Affirmed.


author: Steele Hays, Justice.

text:
    Tyrone Deshun JONES v. STATE of Arkansas
    CR 90-287
    805 S.W.2d 642
    Supreme Court of Arkansas
    Opinion delivered March 25, 1991

      William R. Simpson, Jr., Public Defender, Jerry D. Sailings, Deputy Public Defender, by: Thomas B. Devine III, Deputy Public Defender, for appellant.

      Winston Bryant, Att’y Gen., by: Elizabeth Vines, Ass’t Att’y Gen., for appellee.
   Steele Hays, Justice.

In the first appeal of Tyrone Jones of his conviction for aggravated robbery, we reversed and remanded. Jones v. State, 301 Ark. 530, 785 S.W.2d 218 (1990). Jones was tried and again convicted and sentenced to forty years in the Department of Correction. We affirm.

Richard Arum testified that three men, one armed with a pistol, robbed him of cash and pizzas as he attempted to deliver a pizza to a Little Rock address. Arum identified appellant from a photographic lineup and later from a live lineup as the man who held the weapon. The only point for reversal is that there was insufficient evidence to support the jury’s verdict.

Appellant points to discrepancies in the trial proceedings which, he argues, undermine the identification of appellant as the individual who held the gun during the robbery. For example, Arum described the gunman to the police as a light-skinned, clean-shaven black male, about five feet ten inches tall and about twenty years of age, whereas Jones was sixteen at the time of the robbery and is five feet seven inches tall with a severe case of acne, which Arum did not mention. Appellant also notes that Arum’s identification of Jones from the second photographic lineup was tentative, according to the police officer conducting the photo spread.

On the other hand, Arum identified Jones in the courtroom as the man he saw holding the gun on the night of the robbery and professed no real uncertainty in his identification. His testimony in full implies he believed Jones to be the man and Jones’s general description is not notably dissimilar from Arum’s initial description to the police. Photographs in the record reflect Jones as being decidely light-skinned and his age and height generally agree with Arum’s description.

We have often said that variances and discrepancies in the proof go to the weight of the evidence and are matters for the fact finder to resolve. We find the evidence supporting appellant’s conviction to be substantial. Gonzales v. State, 301 Ark. 98, 782 S.W.2d 359 (1990).

Affirmed.


author: David Newbern, Justice.

text:
    Yvette NEAL and Frank Hammond v. J. B. HUNT TRANSPORT, INC.
    90-267
    805 S.W.2d 643
    Supreme Court of Arkansas
    Opinion delivered March 25, 1991

      Gary Eubanks and Assoc., by: James Gerard Schulze, for appellant.

      Huckabay, Munson, Rowlett & Tilley, by: Bruce Munson, for appellee.
   David Newbern, Justice.

In this negligence case the appellants, Yvette Neal and Frank Hammond, alleged a truck owned by the appellee, J.B. Hunt Transport, Inc., (Hunt) ran their car off the road while passing on a two lane highway, causing Neal and Hammond to be injured. A jury found in favor of Hunt. Neal and Hammond contend two instructions given by the court were erroneous. First, they claim it was error to instruct the jury with respect to a duty they had to yield to the right and not increase speed upon “audible signal,” absent any evidence of such a signal. Second, they contend it was error to give a joint venture instruction absent a showing of some business relationship or purpose common to Neal and Hammond. We reverse on the audible signal instruction and discuss the joint venture instruction because the issue may arise on retrial.

Ms. Neal and Mr. Hammond were college students and co-owners of a green 1981 Mazda GLC automobile. Ms. Neal testified she was driving the vehicle south. Hammond, who had been driving earlier, was a passenger. Ms. Neal testified two 18-wheeler trucks passed them. The second passing truck, owned by Hunt and driven by John Delgado, pulled back into the right-hand lane before completing the pass, causing Neal to swerve off the highway and then back on. There was no contact between the vehicles. Neal and Hammond claimed they were injured physically and emotionally.

Hammond’s testimony corroborated that of Neal to the effect they were forced off the road when the Hunt truck returned to their lane to avoid hitting the oncoming yellow car.

Billy Gene Piggee testified he was driving north in his yellow car when the incident occurred and that his car was run off the road by the oncoming Hunt truck. One of his rear wheels went into the ditch. He saw the green car go off the highway in the course of the incident.

James Austin was driving north following Piggee. He testified he saw the second (Hunt) truck almost hit the yellow car, and that the green car went off on the other side of the road.

John Delgado, the Hunt driver, testified he recalled the incident but that he was passing “a red Chevrolet Caprice . . . being driven ... by [an] elderly woman . . . with three . . . elderly passenger women.” He thought he had plenty of time to pass, but “apparently their speed had increased” and, with the yellow vehicle coming toward him, he watched his mirror to assure clearance of the red Chevrolet Caprice and then switched back to the right-hand lane. When asked, after some coaxing by counsel for Hunt, if he could be wrong about the “red vehicle,” Delgado said he could possibly be but he did not believe so. He said it could have been Neal and Hammond he passed.

1. Audible signal

Arkansas Code Ann. § 27-51-306(2) provides:

Except when overtaking and passing on the right is permitted, the driver of an overtaken vehicle shall yield to the right in favor of the overtaking vehicle on audible signal and shall not increase the speed of his vehicle until completely passed by the overtaking vehicle.

Arkansas Model Jury Instructions 903 is designed to allow the court to instruct the jury that violation of a statute, while not necessarily an act of negligence, may be considered along with other facts and circumstances as evidence of negligence. The model instruction permits the court to summarize or quote the statute in question. Counsel for Hunt asked that it be given quoting Ark. Code Ann. § 27-51-306(2) (1987) with a modification. The instruction proffered by Hunt has not been abstracted, but apparently it would have removed the reference to “audible signal,” as there was no evidence whatever of any such signal having been given in this case. The court refused the modification and decided to give the instruction, quoting the statute without modification. Counsel for Neal and Hammond objected because the instruction quoting the statutory section would make reference to audible signal despite the lack of any evidence that one was given.

We hold the instruction was abstract and could have been prejudicial and thus constituted reversible error. That was our holding in Smith v. Alexander, 245 Ark. 567, 433 S.W.2d 157 (1968). Counsel for Hunt attempts to distinguish the case, arguing that our holding was based on the fact that there we were dealing with two vehicles, and each driver contended he or she was driving the “overtaking vehicle.” While we said that fact was a reason for concluding the jury would be confused by the instruction, we made it clear that:

this rule of the road imposes a duty on the driver being overtaken. The duty was shifted to that driver by Act 300 of 1937. There the requirement that an overtaking driver always sound his horn was deleted. Consequently the instruction should not be given unless there is evidence that the driver being overtaken failed to give way to the right on audible signal.

Here we have neither evidence of audible signal nor evidence that the overtaken vehicle failed to give way to the right. We would have to strain to say there was evidence that Neal increased the speed of her car while being passed. Delgado’s testimony was that “apparently” the red Chevrolet Caprice increased its speed. That was weak and equivocal testimony, even if it had been clearly in reference to a green Mazda as opposed to a red Chevrolet Caprice.

Hunt argues the burden of the statue should have been placed on Neal and Hammond because Neal was aware the truck was passing her, thus the audible signal was unnecessary. No authority is cited for that argument, and it is not convincing in view of our clear language in Smith v. Alexander, supra.

2. Joint venture

We find no error in the joint venture instruction. Neal and Hammond live together and are the parents of a child. When the incident in question occurred, they were returning from a trip to Little Rock to pick up Hammond’s nephew at a hospital. They complain that their common ownership of the car is insufficient to warrant the instruction and it was inappropriate to give such an instruction absent a business relationship between them. Citing Woodward v. Holliday, 235 Ark. 744, 361 S.W.2d 744 (1962), and Wymer v. Dedman, 233 Ark. 854, 350 S.W.2d 169 (1961), they contend there must be a showing of “an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking.”

After explaining how the joint enterprise doctrine has fallen into disrepute, a leading torts authority notes that, “The essential question is whether the parties can be found by implication to have agreed to an equal voice in the management of the vehicle, which in the normal and usual case is merely an issue of fact for the jury.” D. Dobbs, R. Keeton, and G. Owen, Prosser and Keeton on Torts, p. 521 (5th Ed. 1984).

We are not asked to decide whether there was sufficient evidence of negligence on the part of Ms. Neal to justify a joint enterprise instruction which, presumably, was for the purpose of imputing any negligence on the part of Neal to Hammond. We are concerned only with the question whether, as they put it, there was a showing of “an equal right to direct and govern the movements and conduct of each other in respect to the common object and purpose of the undertaking.”

In Reed v. McGibboney, 243 Ark. 789, 422 S.W.2d 115 (1967), we found a basis for the joint enterprise instruction in testimony of a man who owned the car being driven by a friend while they were returning from a business open house. The owner testified that he could have asked the driver to stop the car, and he could have taken control at any time. Ms. Neal testified she would have turned the driving back over to Hammond if he had asked.

While we are not enamoured of the joint enterprise doctrine, it is a part of the common law of this State. Assuming the evidence on retrial is sufficient to raise an issue of negligence on the part of Neal and it remains the same on the matter of right to control the vehicle, the giving of the instruction will not constitute error.

Reversed and remanded.