author: P. H. Hardin, Special Justice. Darrell Hickman, Justice,

text:
    Louis Art DODRILL v. ARKANSAS DEMOCRAT COMPANY et al
    78-10
    590 S.W. 2d 840
    Substituted Opinion on Rehearing delivered July 2, 1979
    (In Banc)
    [Rehearing denied September 10, 1979.]

      Brown <2? Etter, by: Richard Quiggle; and Louis A. Dodrill, for appellant.

      Wright, Lindsey <2? Jennings, for appellees.
   P. H. Hardin, Special Justice.

This appeal is prosecuted from an order of the lower court sustaining a motion for summary judgment, which dismissed Appellant’s complaint seeking damages for libel and invasion of privacy. The factual background giving rise to the litigation is necessary to a clear disposition of the issues on appeal.

On February 4, 1975, upon a complaint filed by the Supreme Court Committee on Professional Conduct, the Pulaski Circuit Court entered judgment suspending Louis Art Dodrill’s license to practice law for a period of 12 months. The judgment conditioned the reinstatement of Dodrill’s license thereafter only upon Dodrill’s satisfactorily passing the regular examination for admission to the bar. No appeal from the judgment was taken by Dodrill, but he subsequently filed a petition in this court challenging the circuit court’s power to condition the reinstatement of his license upon his taking and passing the regular bar examination for admission to the bar. We dismissed the petition holding that the circuit court acted within its jurisdiction. See, In Re Dodrill, 260 Ark. 223, 538 S.W. 2d 549 (1976).

Thereafter, Dodrill took the regular bar examination administered August 9-11, 1976. The Board of Bar Examiners met in regular session and on August 21, 1976, announced the names of applicants who had passed the examination. The Secretary of the Board of Bar Examiners, in keeping with a long standing practice, provided a list of the names of the applicants who had passed the examination to the major newspapers in the state, namely, the Arkansas Democrat and the Arkansas Gazette.

The Sunday, August 22, 1976, issue of the Arkansas Democrat included an article which, among other things, stated:

SUSPENDED LR LAWYER FAILS BAR EXAMINATION
Louis Arthur Dodrill, a Little Rock lawyer whose license was suspended for a year on Feb. 4, 1975, for unethical conduct in his dealings with four clients, failed to pass the August examination of the State Board of Bar Examiners.

Following the above publication, Dodrill filed a petition for writ of mandamus in the Pulaski Circuit Court seeking an order directing the State Board of Bar Examiners to report his scores on the August, 1976, examination. The Board of Bar Examiners filed a motion to dismiss and on October 27, 1976, the Arkansas Democrat, in an article headlined “EXAM BOARD LAWYER ASKS SUIT DISMISSAL”, recounted the efforts by the Board of Bar Examiners to have the suit dismissed, and a brief history of the controversy, including that Dodrill’s name had not been published along with the list of successful examinees.

Being unsuccessful in the mandamus proceedings, Dodrill filed complaint against the members of the Board of Bar Examiners in the United States District Court seeking injunctive and other relief alleging, among other things, that the members of the Board of Examiners were responsible for the publication of the first above quoted article appearing in the Arkansas Democrat.

The affidavits, interrogatories and answers thereto, together with other factual materials properly before the trial court require the following findings: (1) that Dodrill, in fact, had passing scores upon the written examination administered by the Board of Bar Examiners in August of 1976; (2) that the Board of Bar Examiners declined to list his name among the applicants who successfully passed the examination at that time; (3) that Dodrill was not listed because the Board was continuing its investigation into Dodrill’s conduct during the period of his suspension and to otherwise determine that he, in all respects, conformed to requirements of this court for admission to practice; and (4) that finally, on May 14, 1977, the Board of Bar Examiners certified Dodrill to be licensed, he having successfully passed the examination.

Following the reinstatement of his license, Dodrill filed his complaint in the court below seeking damages against the Arkansas Democrat for libel contained in the publication of the two articles above mentioned and for invasion of his right to privacy. In sustaining the Arkansas Democrat’s motion for summary judgment dismissing Dodrill’s complaint, the trial court found, inter alia, that Dodrill had gained the status of a “public figure” because of litigation and publicity surrounding his suspension from the practice of law; that the article complained of contained material of general and public concern, namely, requirements for admission to the bar and efforts for readmission to the bar by a previously suspended lawyer; and that Dodrill had failed to demonstrate that the articles were published with actual malice.

We recognize as controlling the time-honored rule that a summary judgment is an extreme remedy. The burden is upon the moving party to demonstrate that there is no genuine issue of material fact for trial, and evidence submitted in support of the motion must be viewed most favorably to the party resisting the motion. Lallman v. Carnes, 254 Ark. 987, 497 S.W. 2d 47 (1973); Quillen, Adm's v. Twin City Bank, 253 Ark. 169, 485 S.W. 2d 181 (1972).

A. THE LIBEL CLAIM

The central issue presented by this appeal is whether the court erred in finding Dodrill was a “public figure”, thus affording the Arkansas Democrat First Amendment protection from an action for defamation in the absence of proof of actual malice as that doctrine has been announced by numerous decisions of the United States Supreme Court. New York Times Company v. Sullivan, 376 U.S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967); St. Amant v. Thompson, 390 U.S. 727 (1968); Rosenbloom v. Metromedia, Inc., 403 U.S. 29 (1971).

Rosenbloom, supra, extended the privilege announced in New York Times v. Sullivan, supra, to publications concerning matters of general or public interest regardless of the plaintiff’s status. However, the Court in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974) repudiated Rosenbloom and held that the general rule announced there was inappropriate in those cases where the reputations of private individuals were placed in jeopardy.

In Gertz, the Court noted that public figures usually enjoy significantly greater access to channels of effective communication than private individuals. The Court reasoned that private individuals were more vulnerable because of lack of a forum to rebut false statements and that they were more deserving of recovery because they had not thrust themselves into the vortex of public controversy. The Court defined “public figures” as individuals who

have assumed rules of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. Id. 345.

The definition of “public figure” is quite broad and, indeed, one may be held a public figure for limited purposes. Various courts have held included within the definition a football coach, political activist, wife of nationally known television celebrity, editor of newspaper, and a belly dancer. The classification of “public figure” in these instances was justified by the particular facts of those cases. While all of the individuals who have been held to be public figures have not taken active parts in debates on public issues, they nevertheless remained persons in whom the public has a continuing interest in that in each instance the individual had taken affirmative steps to attract public attention or had strived to achieve some degree of public acclaim.

The most celebrated decision dealing with the question of public figure versus private individual is Time, Inc. v. Firestone, 424 U.S. 448 (1976), which arose out of a libel action by the former wife of an heir of one of America’s wealthiest industrial families. . The Court rejected the publisher’s contention that Mrs. Firestone was a public figure even though it appeared from the Court’s opinion, both majority and dissent, that she was a fairly publicized individual who had held a few or several press conferences. The Court particularly pointed to its definition of “public figure” as defined in Gertz and concluded that Mrs. Firestone did not assume a role of especial prominence in the affairs of society and that she had not thrust herself to the forefront of any public controversy in order to influence its resolution.

The Court in dealing with the publisher’s contention that the Firestone divorce had been characterized by the Florida Supreme Court as a “cause celebre” and that it was a public controversy, observed:

But in so doing Petitioner seeks to equate ‘public controversy’ with all controversies of interest to the public. Were we to accept this reasoning, we would reinstate the doctrine advanced in the plurality opinion in Rosenbtoom . . . which concluded that the New York Times privilege should be extended to falsehoods defamatory of private persons whenever the statements concern matters of general or public interest. Id. 454.

The Court concluded that a divorce is not the sort of public controversy referred to in Gertz even though the matrimonial difficulties of some individuals may be of interest to a portion of the reading public. The Court further observed that Mrs. Firestone did not freely choose to publicize the issues but was compelled to resort to the judicial process to obtain a release from the bonds of matrimony. “We have said that in such an instance ‘[rjesort to the judicial process ... is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court.’ ” Id. 454. The Court further found that Mrs. Firestone had not assumed special prominence in the resolution of public questions and, therefore, held that she was not a public figure.

The record in the case at bar is devoid of facts supporting the lower court’s finding that Dodrill had attained “public figure” status. He had not thrust himself into the vortex of public controversy and, in fact, any showing of a public controversy was absent. Moreover, he neither had taken steps to attract public attention, nor had he strived to achieve a degree of public acclaim. His activities were restricted to complying with the lawful mandate of the circuit court by applying for and taking the regular bar examination in August, 1976, an event in which the names of the applicants were not released for public dissemination. Whether he passed or failed would no more relegate him to “public figure” status than did the representation of a client in a highly emotional and publicized case relegate Gertz to “public figure” status, or than did the widely publicized activities relegate the celebrated Mrs. Firestone to “public figure” status. We therefore hold that the lower court erred in granting the motion for summary judgment based on the record before it as to Appellant’s cause of action for defamation.

B. THE INVASION OF PRIVACY CLAIM

The invasion of privacy claim stands upon a different footing than the defamation claim. The law delineating conduct constituting an invasion of privacy and thus, an actionable wrong, is codified in RESTATEMENT (SECOND) OF TORTS, §652A (1977):

(1) One who invades the right of privacy of another is subject to liability for the resulting harm to the interests of the other.
(2) The right of privacy is invaded by
(a) unreasonable intrusion upon the seclusion of another . . .
(b) appropriation of the other’s name or likeness . .
(c) unreasonable publicity given to the other’s private life. . .
(d) publicity that unreasonably places the other in a false light before the public . . .

In Olin Mills, Inc. v. Dodd, 234 Ark. 495, 353 S.W. 2d 22 (1962) we recognized invasion of privacy as an actionable wrong. Olin Mills involved conduct described in Par. 2(b) of the Restatement principles, while the instant case involves conduct allegedly violating Par. 2(d), as above set forth.

The right to recover for an invasion of privacy is conditioned upon the complaining party’s demonstrating that (1) the false light in which he was placed by the publicity would be highly offensive to a reasonable person, and (2) that the defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed. RESTATEMENT (SECOND) OF TORTS, §652E (1977).

A cause of action both for “false light” invasion of privacy and for defamation can be joined in the same action. See, e.g., Varnish v. Best Medium Publishing Co., 405 F. 2d 608 (2d Cir. 1968). However, there can be but one recovery for any particular publication. RESTATEMENT (SECOND) OF TORTS, §652E, Comment b. See also, 62 Am. Jur. 2d, Privacy, §5 (1972).

In Time, Inc. v. Hill, 385 U.S. 374 (1967), the Supreme Court held that First Amendment protection precluded recovery upon a cause of action for “false light” invasion of privacy by a private individual against a publishing company in the absence of proof that the Defendant published the information with knowledge of its falsity or in reckless disregard of the truth. Thus, actual malice must be demonstrated by one seeking to recover for invasion of privacy. This requires a showing of more than mere negligence. There must be sufficient evidence to permit the conclusion that the Defendant, in fact, entertained serious doubts as to the truth of his publication. In Logan v. District of Columbia, 447 F. Supp. 1328 (D. D.C. 1978), an action by a private individual for invasion of privacy, the court said:

Finally, plaintiff’s invasion of privacy claims as to the erroneous report that his urine test indicated drug usage must be considered. On this claim plaintiff appears to assert that the article invaded his privacy by placing him in a false light. To recover on such a theory, however, the plaintiff must demonstrate that the article was published with knowledge of its falsity or in reckless disregard of the truth — i. e. that it was published with actual malice. Time, Inc. v. Hill, 385 U.S. 374, 386-91, 87 S.Ct. 534, 17 L.Ed. 2d 456 (1967); cf. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 249-52, 95 S. Ct. 465, 42 L.Ed. 2d 419 (1974). Id. 1333.

Where the Plaintiff is not a public figure and the publication is of matters of general or public concern, the rule laid down in Time, Inc. v. Hill, supra, dictates that a plaintiff must prove actual malice and that decision remains the law with respect to invasion of privacy actions. Later decisions of the Supreme Court which have retreated from the malice standard in private individual defamation actions have not eroded the rule of Time, Inc. v. Hill, supra, as to “false light” privacy actions. The Plaintiff’s burden of proof is governed by the clear and convincing evidence standard rather than by the preponderance of the evidence standard. New York Times Co. v. Sullivan, supra, 285-286; Hoffman v. Washington Post Co., 433 F. Supp. 600, 604 (D. D.C. 1977).

In the instant case, the affidavits and other matters properly before the court, clearly demonstrate that the Arkansas Democrat did not publish the articles in question with knowledge of falsity or in reckless disregard of the truth. There being therefore no genuine issues of any material fact with regard to the “false light” invasion of privacy claim, we affirm the trial court’s action in entering summary judgment with regard to that cause of action.

Affirmed in part, reversed in part.

George Rose Smith, Holt, and Hickman, dissent.

Darrell Hickman, Justice,

dissenting. The majority, as it is reconstituted, has decided to take a restrictive approach to the problem presented in this case.

It now literally applies some language from United States Supreme Court decisions, notably the cases of Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed 2d 789 (1974), and Time, Inc. v. Firestone, 424 U.S. 448, 96 S. Ct. 958, 47 L. Ed 2d 154 (1975). It also chooses to ignore some language from those cases and not apply that language I quoted from the Gertz case which recognizes that an individual can become a public figure for a “limited range of issues.”

While the majority recognizes that a belly dancer and a football coach can be a public figure, it holds that a lawyer, whose license to hold a position of public trust is in issue, is not a public figure. Who, then, is a public figure? Apparently, aside from elected officials who are recognized by all of us as public figures, only notorious criminals or controversial figures of the highest order. It is regrettable the majority has elected to literally and restrictively apply the standard of law applicable. It is always easier to make such an application. It takes no flexibility, tolerance or ingenuity to do so. It is a haven often sought when tough decisions must be made. It is safer.

Whether Dodrill’s status as a lawyer affects the majority, I cannot say. He was not representing a client as was Gertz. He was not in litigation over a private personal matter as was Mrs. Firestone. He was, as we said in our original opinion, in the public eye because of his breach of a public trust. Would a physician, seeking return of his license after losing it for improperly authorizing drugs, become a public figure? Would a druggist become a public figure under the same circumstances? Such individuals, like Dodrill, would not be ordinary professional people minding their own business, practicing their trade, unwittingly subject to the glare of publicity. They would be individuals who had violated their public trust because of their own misdeeds and were, for good or ill, about to resume their roles as individuals having a public trust. The public in every such instance has a right to know about such a situation and that is a consideration that must be given when deciding such cases.

What right or need does the public have to know about the goings on of a belly dancer or a football coach? Less, I dare say, than about a lawyer whose license has been suspended for unethical conduct.

Finally, and most importantly, the effect of the majority’s decision is to limit the First Amendment of the United States Constitution. That is the substantive issue before us. Any limitation of the freedoms contained in that Amendment, for whatever good intentions, should be made only after careful consideration of the consequences. Any limitations, against whoever, for whatever reasons, cut across everyone’s right (with some limitations, of course) to say what he pleases, about whom he pleases — an American tradition that no other nation has enjoyed nor any government permitted. It is a freedom that ought to be preserved and it is limited in Arkansas by the majority’s decision to grant a rehearing in this case.

I respectfully dissent from this decision and would deny the petition for rehearing.

I am authorized to state that George Rose Smith and Holt, JJ., join in this dissent.

I

       The October 27, 1976 article stated:
      Robert L. Rogers II, a lawyer for the state Board of Law Examiners, has filed a motion in Pulaski Circuit Court asking Circuit Judge Tom F. Digby to dismiss a lawsuit filed by a suspended lawyer who wants to know his score on the Aug. 9 state bar examination.
      Louis Art Dodrill of 3000 Maryland Avenue filed the suit Oct. 5 asking Digby to force the state board to make public his score and to order the board to inform him whether he passed the examination.
      Dodrill did not appear at a hearing in the case last week, and Rogers’ motion was the latest maneuver in a long controversy that dates back to Feb. 18, 1975.
      Digby ruled on that date that Dodrill’s license to practice law would be suspended for one year because of unethical conduct in his dealings with four clients. The judge said Digby’s [Dodrill’s] license couldn’t be reinstated until he passed the exam again.
      Dodrill missed the deadline for appealing Digby’s ruling to the state Supreme Court, and the Supreme Court ruled on July 12 that the appeal had not been lodged in time.
      Dodrill then filed suit against the bar group seeking to determine his score.
      When the results of the Aug. 9 bar examination were made public, only those who passed the examination were listed. As a rule, the law examiners do not mention those who fail.

         Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).

         Associated Press v. Walker, 388 U.S. 130 (1967).

         Carson v. Allied News Co., 529 F. 2d 206 (7th Cir. 1976).

         Tait v. King Broadcasting Co., 1 Wash. App. 250, 460 P. 2d 307 (1969).

         James v. Gannett Co., Inc., 40 N.Y. 2d 415, 353 N.E. 2d 834 (1976).

       Application for and administration of the bar examination are not matters of public record. To preserve the integrity of the admission process these matters of necessity must be closely guarded and uncompromised by public dissemination.

       Neither the United States Constitution nor the Common Law recognized a cause of action for violation of the right to privacy as such. The concept stems primarily from Warren and Brandéis’ The Right to Privacy, 4 Harv. L. Rev. 193 (1890). The late William L. Proser wrote extensively in this area. His work, Privacy, 48 Calif. L. Rev. 383, (1960) was in large measure the inspiration of the American Law Institute’s principles noted above. The majority of jurisdictions now recognize the right to privacy and Arkansas has been included in that majority with the decision in Olin Mills, supra. See also, Note, Torts — Invasion of Privacy by Publication of a Photograph, 3 Ark. L. Rev. 105 (1948-49); Comment, The Right of Privacy, 6 Ark. L. Rev. 459 (1952); Comment, Privacy: The Polygraph in Employment, 30 Ark. L. Rev. 35 (1976).

       In Cantrell v. Forest City Publishing Co., 419 U.S. 245 (1974), the Court consciously abstained from examining the status of Time, Inc. v. Hill, supra, in the light of Gertz v. Welch, supra. It is the duty of this court to follow the mandate of Time, Inc. v. Hill until the rule announced therein has been modified or overruled.


source: Caselaw Access Project

author: Darrell Hickman, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Rex SUTTON v. STATE of Arkansas
    CR 78-150
    580 S.W. 2d 195
    Opinion delivered April 30, 1979
    (In Banc)
    Appellant, pro se.

      Sieve Clark, Atty. Gen., by: Ray Hartenstein, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Rex Sutton was convicted of theft by deception and obtaining a signature by deception in violation of Ark. Stat. Ann. §§ 41-2203 and 41-2213 (Repl. 1977), respectively. He was sentenced to one year on the first charge and six months on the second charge, the sentences to be served concurrently.

Sutton represents himself on appeal and his argument is that the trial judge made a comment which was prejudicial to his case. In response to a question from the jury foreman who requested further directions, it is alleged that the trial judge said, “In a case like this where there is obvious guilt, a jury has wide latitude . . . . ”

That alleged comment is not in the certified record. Even if we accept Sutton’s allegations and proffered “supplemental record”, there was no objection by the experienced trial lawyer representing Sutton; there was no motion for a new trial wherein it might have been proper to offer an alleged tape recording of the court’s comment. There is no compliance with Ark. Stat. Ann. § 27-2127.11 (Repl. 1962) which authorizes settlement of a record that is not stenographically reported. Also, a bystander’s bill of exceptions is a method to properly make a record where none exists. That method was not utilized. See Graham v. State, 264 Ark. 489, 572 S.W. 2d 385 (1978).

In other words, we essentially have the appellant’s statement in his brief that the remark was made.

Since that remark is not a part of the record, we cannot declare it reversible error, as it would be. We will not presume it was made.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I cannot refrain from expressing my rather strong dissent from the majority in this case, although I am sure the majority of the Court intends to do no real injustice and, no doubt, believe they are upholding the law. They are in fact disregarding the constitutional rights of a citizen of the State of Arkansas and sending him to prison on a failure to comply with a procedural rule of the Supreme Court of Arkansas. They are, in my opinion, straining at a gnat and swallowing a camel. The whole basic system of our Republic is founded upon the equality of all mankind and justice to all, regardless of their station in life or status in society.

The Supreme Court of Arkansas promulgated its rules for the purpose of conducting orderly business and guiding the courts and lawyers in the presentation of matters before this Court. Our rules, generally speaking, are good rules and it is proper and right that they should be observed by the courts and the lawyers. However, it is not reasonable to believe that the average person would be able to understand, much less comply with, all of our rules. In fact, we have on many occasions, in the past, waived the technicalities of our rules, especially when a person represented himself. This is the least we could do in this case. The appellant has filed the record and a brief before this Court. Perhaps a more disorganized brief has never been presented to this Court. However, within that brief is a copy of an alleged statement made by the trial judge, to the jury, during their deliberations on this action, which should not and cannot be allowed to stand if our system of justice is to prevail. When the jury asked for additional instructions the court, among other things, allegedly stated:

“EVEN IN A CASE LIKE THIS WHERE THERE IS OBVIOUS GUILT A JURY HAS WIDE LATITUDE

The above statement was not taken by the court reporter and is “outside” the record so far as the majority is concerned and they even cite a statute and a case to support their position. A hundred statutes and a hundred cases would not change my opinion that we are not doing justice when we fail to look at an error of this magnitude on the ground that it is outside the record. The only reason we have the statement, which is considered outside the record, is that the appellant had the foresight to have his cassette recorder turned on at the time this incident happened. Also contained within the papers filed by the appellant is a sworn affidavit by one of the jurors which states essentially the same thing as the part quoted above. The state, in its reply brief, does not contest the validity of the statement. Therefore, I am assuming it is a true statement.

The state argues, in addition to the “outside the record” matter, that no objection was made at the time this remark was made by the court. It is not necessary that an objection be made when an error is so grave as to deprive a defendant of his constitutional rights. In the case of Bell v. State, 223 Ark. 304, 265 S.W. 2d 709 (1954), the trial judge very innocently approached the jury, during deliberations, to determine whether they wanted him to remain at the courthouse during the noon hour. Thereupon a series of questions was asked by jurors and answered by the trial judge. In reversing the conviction in that case, we stated:

“We admire the candor and integrity of character of the trial judge, who unhesitatingly made the above and foregoing statement, but we cannot affirm this case and thereby put the stamp of our judicial approval on such communications between the judge and the jury, lest in the future such communications should be considered a wise course for other judges to follow.”

No objection was made in the Bell case probably for the reason that the lawyer did not hear the conversation. The same reason exists in the present case.

Although the court may have considered he was “having fun” with the jury, it was not so funny to the appellant when he discovered what the fun was all about. I do not mean to imply that the trial judge intentionally made such an unwise statement for the purpose of having this appellant convicted. Nevertheless, it is a statement which a trial court cannot afford to make even though it may be in fun or without any motive whatsoever. This may have been the very statement that caused the jury to return a guilty verdict in a case which was very weak, to say the least, from the beginning. Even though the judge may have been a man of outstanding character and adjudged by the jurors as a great jurist and leader, this is all the more reason why the jury was apt to perceive his every word as a guiding light to them in concluding the matter which was before them.

We are dealing with an appellant who states that he has no money and is unable to employ counsel. Therefore, he has no choice but to take on his own defense in the manner in which he believes is suitable in obtaining justice. I would like to quote from page 2-C of the appellant’s brief:

“Sutton, naively secure in the knowledge that you can’t be held guilty when you are innocent, was confident of justice. Now sadder but wiser, Mr. Sutton realizes that justice and the sum of one’s available economic resources are rather directly related in at least some circumstances. Specifically, in this case, where an innocent man seeks redress for an error not in the official record, which is a further miscarriage of justice.”

New lawyers could have stated the situation more succinctly. I am sure every member of the Court fully agrees that justice is not reserved for only those who can afford to pay for it. I am sure they agree with me that every person in the State of Arkansas is considered to have been born equal with every other individual and has guaranteed unto him the rights not to be deprived of life, liberty or property, without due process of law. The fact that a person cannot hire a lawyer should not send him to prison.

I feel we should have waived the formalities of Ark. Stat. Ann. § 27-2127.11 (1962), although it may make our jobs more difficult, in order to see that justice is done in this case and hopefully to prevent such future occurrences. I am sure the trial court, in looking back, would be genuinely sorry for having made such statement if, indeed, it was made. Nevertheless, I feel that, in the interest of justice, the case should be reversed.


author: John I. Purtle, Justice.

text:
    NORTHWESTERN NATIONAL CASUALTY COMPANY v. Murray F. ARMSTRONG, SOUTHERN FIRE & CASUALTY INSURANCE COMPANY and Curtis COLLINS
    78-328
    580 S.W. 2d 192
    Opinion delivered April 30, 1979
    (Division II)

      Laser, Sharp, Haley, Toung & Huckabay, for appellant.

      Bridges, Toung, Matthews & Davis, for appellees.
   John I. Purtle, Justice.

This case concerns the interpretation of two automobile insurance policies and the exclusions or exceptions from coverage. Both parties presented excellent briefs. Needless to say, their interpretations of the policies differ. After a careful study of the two policies, we have concluded that the trial judge was correct in his interpretation of the policies regarding coverage and exclusions.

The dispute is between Northwestern National Casualty Company, appellant, and Southern Fire & Casualty Insurance Company, appellee. Appellant issued a policy insuring Murray F. Armstrong and appellee issued one insuring Lincoln County, Arkansas. Armstrong borrowed a trailer owned by Lincoln County for his personal use and hitched it to his pickup truck which was covered by appellant’s policy. The utility trailer came unhitched while Armstrong was driving along State Highway #11 in Lincoln County. The trailer then crossed the center line and collided with a vehicle driven by Curtis Leon Collins thereby causing damages and injuries. Armstrong filed a complaint against appellant for a declaratory judgment in which he sought to determine if his policy with appellant afforded him coverage against the claim of Collins. Appellant filed an answer denying coverage to Armstrong and also filed a declaratory judgment that appellee’s policy afforded coverage for the claim by Collins.

Although the case was transferred to federal court on the diversity of citizenship, it was, by mutual consent, returned to the Lincoln County Circuit Court. The pleadings were finally joined and each party moved for summary judgment. The trial court decided appellant’s policy required it to provide a defense for Armstrong against the claim of Collins and further that Armstrong was not “an insured” under appellee’s policy. Appellant (Northwestern National Casualty) appeals on the grounds appellee (Southern Fire & Casualty Insurance Company) should afford basic coverage for Armstrong.

It might be of help to set out the provisions of the policies able counsel rely upon for their argument. Each policy contained the following general insuring clause:

To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of:
A. bodily injury, sickness or disease, including death resulting therefrom, hereinafter called “bodily injury,” sustained by any person:
B. injury to or destruction of property, including loss of use thereof, hereinafter called “property damage”; . . .

Of course, both policies required such loss to arise out of the “ownership,” “maintenance” or “use” of an “owned” or “temporary substitute” automobile. From this point on it appears to be a contest to see which policy can out “exclude” the other.

Under “named insured,” of course, both policies are fairly unambiguous. Under the definitions part of the policies, appellant’s policy (Northwestern) provides:

“owned automobile” means (b) a trailer owned by the named insured “trailer” means a trailer designed for use with a private passenger automobile, if not being used for business or commercial purposes with other than a private passenger, farm or utility automobile, or a farm wagon or farm implement while used with a farm automobile.

Under the terms of appellee’s definitions we find:

“owned automobile” includes a trailer not described in this policy if designed for use with a four-wheel private passenger automobile and if not being used for business purposes with another type automobile.

The following definitions of “an insured” (not the “named” insured) appear in appellant’s (Northwestern) policy:

. . . “insured” means a person or organization described under “Persons Insured”; . . .
Persons Insured: The following are insureds under Part 1: *** (2) any other person using such automobile with the permission of the named insured, provided his actual operation or (if he is not operating) his other actual use thereof is within the scope of such permission, and. .

The definition under appellee’s (Southern) “an insured” reads:

(c) any other person while using an owned automobile or a temporary substitute automobile with the permission of the named insured, provided his actual operation (or if he is not operating) his other actual use thereof is within the scope of such permission. . .

Appellee’s policy then contained a provision stating none of the following is “an insured”:

. . . (iii) any person or organization, other than the named insured with respect to ... (2) a trailer while used with any motor vehicle owned or hired by such person or organization and not covered by like insurance in the Company.

In an effort not to be out excluded the appellant inserted in its exceptions the following exception:

“. . . ; provided, however, the insurance with respect to a temporary substitute automobile or nonowned automobile shall be excess insurance over any other valid and collectible insurance.”

So far as coverage is concerned it appears both policies would afford Armstrong coverage except for the exclusions and/or definitions which, as we see it, turn in favor of the appellee for the reason that the policy states it does not protect any person with respect to a trailer when the trailer is used with any motor vehicle owned by such person and the motor vehicle with which the trailer is used is not insured with appellee (Southern Fire & Casualty Insurance Company). Armstrong, who was using the trailer with his own pickup truck, did not have “like” insurance. Instead, his policy was with appellant (Northwestern National Casualty Company). Therefore, in the absence of any statute or regulation, we must give a literal construction to the contract, and we agree with the trial court that appellee’s policy excludes coverage for Armstrong under the circumstances. At the same time, we agree that appellant’s policy does afford protection for Armstrong against the claim of Curtis Leon Collins, up to the applicable limits of coverage.

We agree with appellant that where the terms and provisions of a contract are conflicting or ambiguous, the contract is to be strictly construed against the insurer and in favor of the insured. However, we here deal with an exclusion from coverage which is fairly apparent after you get that far into the policy. We also agree with appellant that its policy is excess over and above any other valid and collectible insurance available to its policyholder. However, appellee excluded this trailer on its July 1975 Edition of Form A-124, Page 1, “None of the following is an insured,” (iii) (2) when it excluded a “trailer” while used with any motor vehicle owned by an insured unless his motor vehicle was also insured by appellee, Southern Fire & Casualty Insurance Company.

Affirmed.

We agree. George Rose Smith and Fogleman, JJ.

Byrd, J., concurs.


text:
    Sharon Lea CANTLIN v. Milan PAVLOVICH
    78-340
    580 S.W. 2d 190
    Opinion delivered April 30, 1979
    (Division II)

      Wootton, Land & Matthews, by: Gene Matthews, Jr., for appellant.
    No brief for appellee.
   John I. Purtle, Justice.

This case arises out of an automobile collision on a paved apron between Emory Street and the Hot Springs High School parking lot in Hot Springs on December 8, 1975. Appellee had pulled off Emory Street and appellant was leaving the parking lot. The paved apron was not designated for parking or driving.

Prior to the trial the appellant presented a Motion in Limine in which she sought to prevent appellee’s attorney from in any manner introducing evidence of or conveying any information that appellant undertook settlement negotiations. The court overruled the motion and stated he would decide the matter when it was presented during the trial. The jury awarded appellee $700 damages and appellant appeals on the grounds:

THE MOTION IN LIMINE SHOULD HAVE BEEN GRANTED
and
THE COURT ERRED IN REFUSING TO GIVE AMI 9Ó1 AND 903.

The Motion in Limine was proper and should have been granted. However, it within itself would not have been prejudicial error if the court had rejected the matters concerning settlement negotiations when presented. However, when witness Floyd McDaniel testified, “To my recollection, she (appellant) came down and asked me if she could pay this out. And I told ... ”, the objection of appellant to the testimony was overruled by the court. This was clearly part of the negotiations or offer to settle. Also, the court allowed the introduction of a repair estimate on appellee’s vehicle, over objection, to be introduced. The estimate was made out to appellant. The court refused to allow appellant to explain she had made the offer to settle for the purpose of protecting her license to drive a vehicle rather than because she felt she was at fault. We believe this evidence of negotiation was not proper either under our prior case law or Uniform Rules of Evidence, Rule No. 408, which reads as follows:

“COMPROMISE AND OFFERS TO COMPROMISE — Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct criminal investigation or prosecution.”

We now discuss the refusal of the court to give AMI 901 and 903 as requested. Both parties requested 901 be given; therefore, there would have been no error. However, we believe 901 is a proper instruction to be given under the circumstances. There is no reason why the rules should not apply to parking lots. It might be advisable to omit the words “on the street or highway” from § A. Although we have not previously ruled directly on this point, we find many other states have applied the common law Rrules of the Road to other areas such as parking lots and private property. We would not go so far as to hold that statutory rules of the road apply to other than streets or highways. The common law rules do not depend upon positive or negative legislation but have developed by judicial decisions and public policy growing from the experience and practice of society in general. Uses and customs coupled with common sense are the basis for such law. From the experience, observations and acceptance of certain practices, it is common sense that the common law rules of the road (AMI 901), which simply state the duty of the operator of an automobile to others, should apply to areas which are frequently used by the public even though such areas are not designated as part of the system of public streets and highways. Cases which have held “proper lookout” and “reasonable care” should be applied to places not on a street or highway are Erwin Mfg. Co. v. Croft, 222 Ala. 680, 133 So. 717 (1931); Sientki v. Haffner, 145 F. Supp. 435 (D.C.N.Y. 1956); Cavalier v. Peerless Ins. Co. of Keene, N.H., 246 La. 336, 164 So. 2d 347 (1964). We have held that the rules of the road do not apply to off-street areas when the use of the street was not involved. Bean v. Coffee, 169 Ark. 1052, 277 S.W. 522 (1922).

The testimony indicates appellee was using Emory Street immediately before he turned onto the paved apron separating Emory Street from the designated parking lot at the high school. Ark. Stat. Ann. § 75-618 would appear to certainly be applicable and the facts, when they are developed, may well show it to be proper to insert other statutes or ordinances within the framework of AMI 903 which we believe to have been a proper instruction under the facts of this case. Although all the record was not abstracted, we do know that there seems to be a difference of opinion as to whether appellee turned at an intersection or not but, in any event, he did turn off Emory Street immediately before the collision.

Since evidence of negotiations was improperly admitted and for the further reason that AMI 901 and 903 should have been given, we must reverse.

Reversed and remanded.

We agree. Harris, C.J., and Fogleman and Holt, JJ.


author: George Rose Smith, Justice.

text:
    Bob McFERRIN et al v. Arnold KNIGHT, Circuit and County Clerk, et al
    78-294
    580 S.W. 2d 463
    Opinion delivered May 7, 1979
    (In Banc)

      David Osmon; Norman C. Wilbur; and H. David Blair, of Murphy, Blair, Post & Stroud, for appellants.

      Drew Luttrell, for appellees.
   George Rose Smith, Justice.

This appeal in effect challenges the validity of a local option election held in Baxter county in connection with the general election on November 7, 1978. The electors voted in favor of the manufacture and sale of intoxicating liquors within the county. We reverse the chancellor’s decree and dismiss the case, on the ground that a chancery court has no jurisdiction to review the sufficiency of a petition seeking a local option election.

The petitions for a local option election were filed with the circuit and county clerk on September 7, 1978. Amendment 7 to the Constitution of 1874 provides that initiative and referendum measures, in counties, may be ordered by petitions signed by persons equalling 15% of the total number of votes cast in the last general election for the office of circuit clerk. In the present instance the clerk approved the petitions, certifying that 7,295 votes had been cast for the office of circuit clerk and that the petitions contained 1,278 valid signatures.

The clerk was actually in error in relying upon the 15% requirement contained in Amendment 7, because it is firmly settled that Amendment 7 has no application to local option petitions, which are governed by statute. Brown v. Davis, 226 Ark. 843, 294 S.W. 2d 481 (1956). The controlling statute actually provides that a county-wide local option petition must contain signatures equalling 15% of the qualified electors in the county. Ark. Stat. Ann. § 48-801 (Repl. 1977). In the present instance the petitions did not contain that many signatures.

The appellants, however, in challenging the petitions, did not at first raise the point that 15% of the county electorate had not signed the petitions. Instead, the appellants appealed to the chancery court and questioned the sufficiency of the petitions on other grounds, which we need not enumerate. With respect to those grounds the chancellor sustained the validity of the petitions and refused to prohibit the election. When the appellants finally raised the point that the petitions did not contain 15% of all the qualified electors in the county, the chancellor held that the objection was not timely.

As we have indicated, the chancery court actually had no jurisdiction to review the sufficiency of the petitions. That authority, in local option cases, is purportedly conferred by statute. Section 48-801.1 (Repl. 1977), which in turn refers to Section 2-311 (Repl. 1976). Ever since the leading case of Walls v. Brundidge, 109 Ark. 250, 160 S.W. 230, Ann. Cas. 1915C, 980 (1913), it has been consistently held that when the Constitution of 1874 was adopted, chancery courts had no jurisdiction with respect to election contests or the adjudication of political rights, and such jurisdiction cannot be conferred by statute. This want of subject-matter jurisdiction is an issue which the court raises itself, even though the parties have not done so. Roper v. Rodgers, 249 Ark. 416, 459 S.W. 2d 419 (1970). It follows that the chancery court should have dismissed the case, for want of jurisdiction.

We do not overlook the fact that under the express language of Amendment 7 the sufficiency of local initiative and referendum petitions is subject to review by the chancery court. The validity of that provision is not open to question, because of course the original jurisdiction of chancery courts can be enlarged by constitutional amendment. Local option petitions, however, as we have pointed out, are not filed under Amendment 7; so the statutory attempt to enlarge the jurisdiction of chancery courts must fail.

One other point must be discussed. In Catlett v. Republican Party of Ark., 242 Ark. 283, 413 S.W. 2d 651 (1967), we dismissed a case pertaining to election matters, because the chancery court had no jurisdiction. In doing so, however, we explained that we "id not remand the case with directions that it be transferred to law, because no justiciable controversy remained in that instance.

In the case at bar, however, a justiciable question does remain. That is, the appellants contend that the failure of the local option petit: ns to contain the signatures of 15% of the county’s total electorate is a jurisdictional defect that can be raised at any time and that renders void the wet-dry election which was held last November in Baxter county. We could, of course, remand the case to chancery so that it could be transferred to circuit court for the decision of that question. We see no reason, however, to adopt that circuitous procedure when the proper parties are before us and the question has been presented by the briefs.

We have found no authority on the exact point, but we think it plain that the 15% requirement is not jurisdictional. The manifest purpose of a minimum signature requirement is to make it certain that trivial matters cannot be readily placed upon the ballot. State ex rel. Graham v. Board of Examiners, 239 P. 2d 283 (Mont., 1952). There the number of signatures on an initiative petition fell short of the constitutional minimum, but the court held that the deficiency was immaterial where no such challenge was made until after the election. Similarly, we have held that the sufficiency of the petition is of no importance after the question has been submitted to and voted upon by the people. Beene v. Hutto, 192 Ark. 848, 96 S.W. 2d 485 (1936). Moreover, Amendment 7 provides that the failure of the courts to determine the sufficiency of a petition before the election does not militate against the validity of a measure which has been approved by a vote of the people. In view of all these considerations we are convinced that the 15% requirement is not jurisdictional.

The decree is reversed, for want of jurisdiction in the chancery court, and the appellants ’ challenge to the election is dismissed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Calvertis JARRETT v. STATE of Arkansas
    CR 79-22
    580 S.W. 2d 460
    Opinion delivered May 7, 1979
    (In Banc)

      John W. Achor, Public Defender, by: James Phillips, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

By information Jarrett was charged with theft of property and with robbery, with three previous felony convictions. At a bench trial the court found Jarrett guilty of the two offenses and sentenced him to 30 days’ confinement for the theft and to 5 years for the robbery. For reversal it is argued that the proof is insufficient to sustain a finding of guilty upon either charge.

At the time of the offenses police officer Baer, off duty, was acting as a security guard at a grocery store. From a place of concealment the officer saw Jarrett and three other men load a grocery cart with packages of meat. The other three then went toward the front of the store, but Jarrett pushed the loaded cart into a storeroom, marked Employees Only. There, within the officer’s sight, Jarrett began to put the packages of meat into two large sacks that had been stuck in the back of his pants. When Jarrett saw the officer he started to run, but he stopped when the officer drew his revolver and ordered him to stop. Baer tried to handcuff Jarrett and succeeded in getting one bracelet on his left wrist. The officer’s testimony then continues:

I... was attempting to put the other bracelet on his right wrist when the fight started. . . . He broke and tried to run, and of course I was holding on to the one bracelet, and I’ve got a gun in the other hand, which means I can’t grab him. We started fighting, bouncing off. There’s all kinds of merchandise, boxes, there’s an ice machine, a baler. We bounced off the ice machine and the baler. I tried to handcuff him to the baler, because my car was out front with two more suspects. We continued to fight, wrestle, he was continually trying to break and get away, pushed me away, knocked me away. . . . We got up closer to the baler, and of course we are still fighting and I was trying to handcuff him to it.

At that point the officer’s gun went off accidentally. Both men stopped fighting, and Jarrett was handcuffed and taken into custody.

First, the proof supports the court’s finding that Jarrett was guilty of theft of property. Under the new Criminal Code a person commits theft of property if he knowingly exercises unauthorized control over the property of another person with the purpose of depriving the owner thereof. Ark. Stat. Ann. § 41-2203 (Repl. 1977). It was reasonable for the trial judge to believe that if Jarrett meant to buy the large quantity of packaged meat he would have taken it to the check-out counter. Instead, he rolled the cart into a storeroom, where the public was not supposed to be, and began putting the meat into sacks. The trial judge could infer from the evidence that Jarrett was exercising unauthorized control over the property with the intention of taking it out of the store in sacks, as if it had been paid for. In fact, no other explanation for Jarrett’s conduct is readily apparent.

The proof also supports the conviction for robbery, because the crime of robbery has been materially changed by the Criminal Code. As pointed out in the Commentary to Section 41-2103, under prior law robbery consisted of the felonious taking of money or other valuable thing from the person of another by force or intimidation. That definition put the primary emphasis upon the taking of property. But the Code redefines robbery to shift the focus of the offense from the taking of property to the threat of physical harm to the victim. As the Commentary states: “One consequence of the definition is that the offense is complete when physical force is threatened; no transfer of property need take place.”

Under the Code robbery is defined in this language:

A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. [§ 41-2103.]

“Physical force” means, among other things, any bodily impact or the threat thereof. § 41-2101

Needless to say, it is our duty to enforce the new statute as it is written, which we have actually already done in Wilson v. State, 262 Ark. 339, 556 S.W. 2d 657 (1977). Here the proof supports a finding that Jarrett, immediately after committing a theft, resisted apprehension by employing or threatening to employ physical force upon Officer Baer. The evidence therefore sustains the conviction.

Affirmed.

Hickman and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. I cannot compel myself to remain silent in view of the majority opinion. I could not sleep well if I refrained from registering this dissent. My brothers have again confounded me by their reasoning in affirming this case. Apparently the prosecuting attorney wanted to see how far he could go with a literal interpretation of the language in our new Criminal Code. It would be funny if we were not dealing with the liberty of another human being.

Robbery is defined in Ark. Stat. Ann. § 41-2103 (1) (Repl. 1977):

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

Appellant had placed some meat from a shelf in a grocery store in a sack while he was in the back of the store. The officers were perched upon their seat behind one-way mirrors and observed what appeared to be a theft in the making. Before appellant attempted to leave the store the officer rushed him and he started to flee. Thereupon the officer drew his service revolver and ordered appellant to stop as he obviously did. While the officer was holding his revolver in one hand he was attempting to handcuff the appellant with the other. After clamping his left hand into the cuffs he attempted to put the other one on while appellant was resisting the force being used upon him. About this time the revolver discharged and both men became frightened and settled down. There is no indication appellant exerted any force whatsoever except to try to keep from being handcuffed. He made no threats to employ physical force upon anyone so far as the record reveals. Obviously the main force used was by the officer while he was trying to handcuff appellant to a wire on a baler machine. Naturally, there was physical force when appellant pulled back. The two may have even scuffled but the most that can be said is that appellant was resisting arrest. The officer stated: “He was continually trying to break and get away.”

Appellant had no weapon other than the meat he had placed in a sack. He inflicted no injury upon the officer. Nevertheless, he was charged, convicted and sentenced to five years in the Department of Correction for “robbery.”

I do not believe the General Assembly intended that every supposedly attempted theft would be considered a robbery. If they did, the comments following § 41-2103 and common sense no longer have any application to the law. Most any shoplifting or theft or resisting arrest case is now classified as a robbery if this opinion stands.

There was only one entrance and exit from this Safeway Store on Asher Avenue. The appellant would have to have attempted to walk past the checkout counters with his bag of groceries before he could reasonably have been charged with attempted theft. Witnesses for appellant contended he was there for the purpose of purchasing items and the facts do not dispute this, except it would be unusual to put the meat in a sack instead of a cart. I am sure he probably intended to try to steal the items but he was still in the preparation and planning stages inside the store when he was handcuffed and arrested. The store employee testified the meat was still in the cart. I don’t know whether it was in a sack or a cart but it was still inside the store and it never left the store. Appellant never attempted to leave the store without paying for the meat or whatever it was.

Giving the evidence its highest probative value, appellant possibly committed the offense of resisting arrest pursuant to Ark. Stat. Ann. § 41-2803 (Repl. 1977). Unless this statute was intended to apply in cases like this, it may as well never have been enacted.

In practical application the majority view here would allow a robbery conviction for a person who took a 15-cent item and ran and, while running, accidentally bumped into someone in a crowd of people. I believe in the strict enforcement of our penal statutes but I do not believe in applying them to abstract or ridiculous situations like this. It is no wonder our penal institutions are overflowing and that we have so much criticism of the Department of Corrections for releasing inmates early. I hope appellant is one of those who obtains an early release.

Our criminal justice system should be designed for the purpose of an equal application of the laws and to do justice. This Court is the last resort for those who feel they have not received justice in the lower courts, and if we fail them then they have nowhere else to turn. I submit that when we render an opinion affirming a conviction like this we have failed to look out for individual rights and the image and structure of our “Criminal Justice System.”

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


author: John A. Fogleman, Justice.

text:
    Garrett HACKWORTH and Bertha C. HACKWORTH and Richard M. COURSON v. FIRST NATIONAL BANK OF CROSSETT, Crossett, Arkansas
    78-329
    580 S.W. 2d 465
    Opinion delivered May 7, 1979
    (Division II)

      Paul S. Rainwater, for appellants.

      Arnold, Hamilton & Streetman, for appellee.
   John A. Fogleman, Justice.

Appellee, First National Bank of Crossett, brought this foreclosure action against appellants Garrett Hackworth and Bertha C. Hackworth, d/b/a The Hack Shop and Richard M. Courson, the uncle of Bertha Hackworth, on a real estate mortgage and a security agreement covering inventory, furniture and fixtures of The Hack Shop, a business operated by Garrett Hackworth. Appellants contended that the security interest held by appellee had been extinguished by payment of the original notes secured by the security agreement. The chancery court sustained appellee’s contentions and ordered foreclosure. We affirm.

The suit was brought on appellee’s note No. 09693, dated October 6, 1976, for $12,750.00, executed by Garrett and Bertha G. Hackworth. Appellee contended that this note was a renewal of its note No. 04913, dated September 26, 1975, for $12,750.00, also executed by Garrett and Bertha C. Hackworth. A real estate mortgage was given by Harry and Betty Gourson, parents of Bertha Hackworth, to secure this note. Appellee contended that both note No. 04913 and note No. 09693 were secured by both the real estate mortgage and the security interest in the inventory, furniture and fixtures of The Hack Shop, by virtue of the security agreement. On this basis, the property was attached and sold under the orders of the chancery court in this proceeding.

Appellants contend that the attachment was wrongful because the bank had no security interest at the time of the attachment. Richard M. Gourson is a party because he loaned money to Garrett and Bertha Hackworth on the basis of a security agreement covering the same personalty. This security agreement was executed on July 11, 1977.

The sole point for reversal is the assertion that the finding of the chancellor was clearly against the preponderance of the evidence.

The security agreement on which the bank relied was dated September 26, 1974. A financing statement evidencing this security interest was filed in the offices of the Secretary of State of the State of Arkansas and the Circuit Court Clerk and Recorder of Ashley County. This statement showed no maturity date on the debt secured. No termination statement was ever filed. This security agreement secured an original loan of $38,439.42, evidenced by two notes, one for $13,-000.00 and the other for $25,439.42, both due one year after date. The original notes were executed by the Hackworths and by Mrs. Hackworth’s parents. The bank contended that this indebtedness was not paid but was extended on September 26, 1975, by renewal notes and that the unpaid balance of the note for $13,000.00 was again extended for six months by the renewal note dated October 6, 1976. There was a balance of $12,516.43 principal and $648.12 interest due on this note when the foreclosure suit was filed. This was the only indebtedness owed the bank by the Hackworths at that time. The decision turns substantially upon the question whether the note executed on September 26, 1975, was a renewal of one of the two promissory notes described in the security agreement with the bank.

In support of their contention that the note on which the foreclosure suit was based was not a renewal, appellants rely on the testimony of Garrett Hackworth and the fact that the original note was marked paid by the bank. This mark was placed upon the note by J. B. Posey, Vice Chairman of the Board of Directors of First National Bank of Crossett. The date of payment indicated was “9-25-75.” There was no notation “Paid by Renewal” similar to that put on a later note, extending the debt of the Hackworths which was evidenced by the note dated September 26, 1975, which appellee contends was a renewal 'or extension of one of the original notes and which appellants contend was a new loan.

Garrett Hackworth testified that the original note dated September 25, 1974, was paid to the bank on September 26, 1975, the date of the note the bank claims was a renewal or extension of the balance then due on the original note. He said that new notes were executed on September 26, 1975 and a new real estate mortgage taken to secure them. He testified that he asked Posey if the inventory was included and that Posey replied, “No, not with this type of collateral. We would not need the security of merchandise. ” He added that he had asked if he needed to sign another security agreement and that Posey answered that one would not be needed and that the bank had sufficient collateral in the real estate. He said that the proceeds of the notes executed on September 26, 1975, were used to pay off the original notes. He pointed out that the later notes both bore a notation “realty mortgage” and that the note later paid had a notation, “Payment of this note is secured by a realty mortgage. ” There was no reference to a security agreement on either note. Garrett Hackworth said that there was no discussion of collateral at the time the note on which this suit is based was signed, but that, when he paid the larger note in July of 1977, Posey stated that the bank would be willing to go ahead and renew this note, if “the store” was put up for collateral, and showed him a new security agreement already prepared. Hackworth testified that he told Posey he could not give the bank a “first mortgage” on the store, because he had already given one to Robert Courson, but that he would be glad to give the bank a second mortgage. According to Hackworth, Posey declined this offer. Hackworth stated that when he executed the security agreement with Robert Courson and the accompanying financing statement on July 6, 1977, he did not realize that the bank claimed a security interest in the inventory, furniture and fixtures.

Posey testified that the transaction which took place on September 25 and 26, Í9Í5, was the result of an agreement on the part of the bank to renew the balance due on the two original notes after Garrett Hackworth had reported that his father-in-law was in a “deteriorating condition” and that the notes could not be paid except in installments similar to those being made on the larger of the two notes. Posey said that the Hackworths never requested that the bank release its security interest and that there had never been any discussion about renewing or releasing security interests. He acknowledged that he made the “paid” notation on the original note, but said that it was not paid in “good funds.” Posey explained the taking of a new real estate mortgage, and not a new security agreement, by stating that, because of payments made, the amounts of the notes were changed, but that a change in amount on the security agreement was unnecessary. He stated that he did not request that Hackworth execute a new security agreement at the time the larger note was paid, but said that the bank did offer to renew the debt represented by the note on which this suit is based and, when Hackworth did not pursue the matter, there was no discussion of “mechanics.” Posey denied that a new security agreement had been prepared. No request was ever made for a termination statement on the bank’s security interest. A secured party is required to file such a statement upon demand of the debtor when there is no outstanding secured obligation and no commitment to make advances. Ark. Stat. Ann. § 85-9-404 (Supp. 1977).

On the testimony outlined above, there was only a question of credibility to be resolved by the chancellor. There are additional facts, however, that weigh heavily in favor of appellee, and probably assisted the chancellor to resolve the question without difficulty.

James Nolley, the owner of Guy Nolley Insurance Agency, had issued a policy of insurance on the contents of The Hack Shop on March 3,1975. It was for a term of three years. It had a loss payable clause in favor of appellee. This policy remained in effect until November 10, 1977, without any change in the mortgage clause. The premium was billed in annual installments which were paid by Hackworth. Nolley testified that it was the practice of his agency to check on each anniversary of such a policy to determine whether the mortgagee still has a mortgage. Although Nolley considered every third year to be the anniversary of a three year policy, he said that his agency attempted to inquire about the mortgagee every year. He had no specific recollection of having asked Hackworth about this. Posey testified that at a conference with the Hackworths on May i, 1977, they had a conversation about payment of premiums on this policy, and he was assured that they had been paid. He also stated that he made a trip to the agency to ascertain whether the premiums had been paid and the coverage was still in effect.

It is also significant that the first real estate mortgage was not released until the bank agreed to release both mortgages upon payment of the larger of the two notes executed on September 26, 1975. The undisputed evidence also shows that Hackworth periodically furnished the bank with inventories of the collateral covered by the bank’s security agreement during the entire period any of the indebtedness remained outstanding. One of them was dated December 31, 1976.

Hackworth testified that he never requested a termination statement because he didn’t know that a request was required. He denied having had any discussion with the Guy Nolley Insurance Agency about the mortgage clause, and said that removal of the mortgage clause never entered his mind. He admitted that inventories were furnished because the bank requested them, but said that the reason he furnished them was because he owed the bank, was buying merchandise and making “other” notes. The actions of the parties certainly tend to corroborate the testimony of Posey.

Even though we try chancery cases de novo, we do not reverse the chancery court’s decree, unless the chancellor’s findings are clearly against the preponderance of the evidence. Since the question of preponderance turns largely upon the credibility of the witnesses, we defer to the superior position of the chancellor. Massey v. Price, 252 Ark. 617, 480 S.W. 2d 337; Loftin v. Goza, 244 Ark. 373, 425 S.W. 2d 291; Guaranty Financial Corp. v. Harden, 244 Ark. 846, 427 S.W. 2d 548; Dodds v. Dodds, 246 Ark. 313, 438 S.W. 2d 54; Marine Mart, Inc. v. Pearce, 252 Ark. 601, 480 S.W. 2d 133.

Most of appellants’ arguments turn upon the question whether the security agreement remained in force after September 25, 1974, and we cannot say that the chancellor’s finding in this regard was clearly against the preponderance of the evidence. Appellants did express their disagreement with our decision in Associated Business Investment Corp. v. The First National Bank of Conway, 264 Ark. 611, 573 S.W. 2d 328 (1978), and expressed a preference for Safe Deposit Bank & Trust Company v. Berman, 393 F. 2d 401 (1st Cir., 1968). The question there involved was whether a security agreement covered advances made after the original obligation had been paid. The question here is primarily a factual one, i.e., whether the original obligation had been paid. Even so, in the security agreement in this case, the indebtedness recited therein covered “all future advances made by secured party for taxes, insurance, repairs or otherwise advanced to debtor prior to satisfaction hereof.” The indebtedness, according to the chancellor’s holding, was not paid, but even if it had been, the loan on September 26, 1975, would have been a future advance made, not only prior to satisfaction of the security agreement, but, since, under the Hackworths’ version, it was made to enable them to pay the notes described in the agreement, it was necessarily made before those notes were actually paid.

We find no conflict in our decision and that of the Fifth Circuit Court of Appeals. The security agreement in that case secured only certain notes (not indebtedness) and renewals and extensions thereof. The secured creditor in that case sought to enforce a “future advance,” rather than an extension or renewal of the notes described in the security agreement, against a trustee in bankruptcy, who stood in the position of a subsequent lien creditor.

The Hackworths also contend that the court erred in dismissing their counterclaim for damages for wrongful attachment because appellee, in obtaining an attachment of the property covered by the security agreement, did not comply with Ark. Stat. Ann. §§ 34-2119 — 34-2123 (Supp. 1977). This statute does not apply to attachments. It applies only to actions in which the plaintiff claims a right to possession of property in possession of another, which would usually, if not always, be a replevin suit. This attachment merely held the property attached as security for the satisfaction of a judgment which may be recovered. Ark. Stat. Ann. § 31-101 (Repl. 1962). By it, the property was taken into the custody of the sheriff to be held subject to the order of the court. Ark. Stat. Ann. §§ 31-110, -114 (Repl. 1962).

Appellants also contend that the attachment was wrongful because appellee did not allege or prove any of the essential grounds for attachment under Ark. Stat. Ann. § 31-101 et seq (Repl. 1962). We disagree. Appellee filed a verified “Complaint for Foreclosure and Order of Attachment.” This pleading contained an allegation that the value of the security was diminishing and that Hackworth was in the process of selling or disposing of the collateral and that the collateral was in danger of being sold, concealed or moved from the premises in derogation of the rights and interest of appellee, without the proceeds being applied to the debt owing to appellee, and contrary to the terms of the security agreement. It was further alleged that, if the property were not attached, it would greatly diminish to the detriment of appellee. On the same day this complaint was filed, the court ordered the issuance of the attachment, but provided that appellants might obtain release of the property upon filing a corporate surety bond for $15,000, in favor of appellee. Appellee filed its attachment bond on August 3, 1977. The allegations made by appellee stated a ground for attachment under subdivision 8 of § 31-101. Ark. Stat. Ann. § 31-149 (Repl. 1962) provides a method under which a defendant may move for discharge of an attachment and have a hearing if the grounds for attachment are controverted. No such motion was filed. The only controversion of the allegations of the complaint was denials in the answer filed.

No hearing on the grounds for attachment in advance of the trial was held or sought, even though the court ordered a commissioner to sell the attached property upon the petition of appellee, to which appellants filed a response. The order of sale recites that the matter came on for hearing upon appellee’s petition, but a transcript of the hearing does not appear in the record.

At the trial, W. C. Norman, Jr., president of the bank, testified that during June, July and August of 1977, he was trying to work out a solution to the default status of the Hackworth loan and to negotiate a settlement with Garrett Hackworth and his attorney. According to Norman, Hackworth was conducting a sale at The Hack Shop. Norman exhibited a newspaper advertisement which he said was typical of that being conducted in a newspaper and on radio. Norman said this caused the bank concern about the dissipation of the collateral without the debt to the bank being paid, and caused the bank to apply for attachment of this collateral, which was accomplished on August 4, 1977. He said that the bank’s efforts at this time to secure a commitment from Hackworth that would insure payment of the debt had been unsuccessful.

Hackworth testified that the sale advertised was promotional only, to raise funds, rather than a “going out of business sale,” even though it was called a liquidation sale in the advertising done. He said that he had discussed the sale with Posey, but that, after it had gone on for ten days, it was stopped by the attachment on August 4. He said that he learned on July 28, 1977, that the bank was planning to file the suit.

Again, we are unable to say that the holding of the trial court sustaining the attachment was clearly against the preponderance of the evidence.

The decree is affirmed.

We agree. Harris, C.J., and Holt and Purtle, JJ.


author: Conley Byrd, Justice.

text:
    Jerry CASHION v. STATE of Arkansas
    CR 79-4
    580 S.W. 2d 470
    Opinion delivered May 7, 1979
    (Division I)

      Oliver Cox, for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Jerry Cashion in January, 1970, entered guilty pleas to two separate burglaries (Cases 1576 and 1577) and received two concurrent 15 year sentences with eight years suspended. In January, 1973, after appellant had been paroled from the Department of Corrections, the trial court revoked the eight year suspended sentence in Case No. 1577. On April 26, 1978, the trial court revoked the eight year suspended sentence in Case No. 1576.

In this post conviction proceeding, appellant contends that the court had no authority on April 26, 1978, to revoke the suspended sentence in Case No. 1576, since such action would in effect make the two sentences run consecutively instead of concurrently. We must agree with appellant.

In Williams, Standridge & Deaton v. State, 229 Ark. 42, 313 S.W. 2d 242 (1958), we pointed out that once a valid concurrent sentence has been put into execution, the trial court is without jurisdiction to modify the sentence to make the sentences run consecutively. Consequently, it follows that since the trial court here originally ran the sentences concurrently, it was without authority to revoke the suspension in such a manner as to make them run consecutively.

Reversed with directions to set aside the revocation in case No. 1576.

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


author: Frank Holt, Justice.

text:
    Leon REA et al v. Katherine RUFF et al
    78-249
    580 S.W. 2d 471
    Opinion delivered May 7, 1979
    (Division II)

      Blackmon & ¿¡akrzewski, by: Wayne ^akrzewski, for appellants.

      Philip E. Meadows, for appellee Millers Ins. Co.

      Pinson <2? Reeves, by: Kenneth Reeves, for appellee Katherine Ruff.
   Frank Holt, Justice.

This action was instituted by appellants seeking a declaratory judgment as to their rights in the proceeds of an insurance policy on a motel damaged by fire. Appellee Ruff, as first mortgagee, was named loss payee in the policy. The court found she was entitled to the policy proceeds. Hence this appeal.

Appellee Ruff and her husband, now deceased, sold the motel to appellants Woodrow and Mollie Horton in 1964 by escrow contract. The contract provided that appellants, as the purchasers, would procure insurance coverage on the motel (and a restaurant) in the amount of $60,000 with loss payable to the sellers. Thereafter, appellants Horton sold their interest in the motel to appellants Leon and Nadine Rea, who assumed the balance due appellee Ruff under the escrow contract. The motel was damaged by fire in January, 1978. At the time of the fire, there was in effect an insurance policy issued by appellee Millers Insurance Group naming appellee Ruff as loss payee.

Appellants first contend the court erred in entering an order without a trial and that until there is evidence submitted, the chancellor could not make “a valid determination of the issues.” Appellants’ declaratory action alleged that appellee Ruff had impliedly authorized the proceeds of the insurance policy to be applied to the repair of the building. Appellee Ruff responded by denying that she had so agreed or that she had been aware of the plans or reconstruction in progress. We first observe, in answer to appellants’ contention, that the chancellor’s action was based upon appellants’ agreement. Admittedly, appellants’attorney, with appellees’ attorney, approved an order of the court providing that “ [b]y agreement of all the parties,” written briefs would be submitted to the chancellor and opposing counsel on or before a certain date and “[t] hat judgment declaring the rights of the parties herein will be rendered based on said briefs as submitted. ” Further, appellants made no objection to this agreement until after the court’s action when they filed a motion to set it aside asserting that they should have been permitted to introduce proof. As to appellants’ motion, we find no ruling on it. The burden is on the party making a motion to obtain a ruling from the court and failure to do so constitutes a waiver of the motion precluding its consideration on appeal. Flake v. Thompson, Inc., 249 Ark. 713, 460 S.W. 2d 789 (1970). In the circumstances here, we cannot say that the court erred in entering judgment.

Appellants next contend that the court erred in awarding the insurance money to appellee Ruff since she knew of the fire loss and the intentions of the insurance company and the appellants to apply the proceeds to the property’s reconstruction. Appellee Ruff asserted her claim to the proceeds as the project neared completion. Appellants now assert that appellee Ruff is estopped to claim the proceeds.

It is weil settled that, in a situation such as the one at bar, the loss payee is entitled to the insurance proceeds. Price v. Harris, 251 Ark. 793, 475 S.W. 2d 162 (1972). The facts of that case are almost identical to the case at bar. In dealing with the estoppel argument, among others, we said:

Because of our previous holdings that a stipulation that property should be insured for the benefit of the mortgagee constitutes an appropriation in advance of the insurance money to the satisfaction of the mortgage indebtedness, Bonham v. Johnson, 98 Ark. 459, 136 S.W. 191 (1911), appellant is not entitled to relief under these contentions.

See also Sharp v. Pease, 193 Ark. 352, 99 S.W. 2d 588 (1936); and Kissire v. Plunkett-Jarrell Gro. Co., 103 Ark. 473, 145 S.W. 567 (1912).

Appellants assert further that even if appellee Ruff is entitled to the proceeds, appellants should be allowed to apply the payments to their debt as the payments become due, arguing that the case is similar to Crone v. Johnson, 240 Ark. 1029, 403 S.W. 2d 738 (1966), as appellants will be placed in an “obviously inequitable” position if appellee is awarded the proceeds. Crone is inapposite. It dealt with a case where the mortgagor defaulted and the mortgagee was attempting to accelerate the entire debt, foreclose, and also collect the insurance proceeds. We disallowed this as being an inequitable result. Here appellants’ same argument was made in Price, supra. There we rejected that argument, noting that we did not overlook appellant’s reliance on Crone, supra. Here it is undisputed that appellee Ruff did not seek acceleration of the debt nor a foreclosure. She only sought and was awarded the insurance proceeds, as a loss payee, which she has applied to appellants’ indebtedness.

Affirmed.

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