author: Steele Hays, Justice.

text:
    CARPETLAND OF NORTHWEST ARKANSAS, INC. d/b/a Carpetland; and Philadelphia Carpet, Inc., A Foreign Corporation v. Gary HOWARD and Nancy Howard, Husband and Wife, Richardson-Vicks, Inc. and Personal Care Products Division, Inc.
    90-102
    803 S.W.2d 512
    Supreme Court of Arkansas
    Opinion delivered February 4, 1991

      Penix & Taylor, by: James A. Penix, Jr., for appellant.

      Davis, Cox & Wright, by: Don A. Taylor, for appellee.
   Steele Hays, Justice.

The primary question in this product liability case concerns the defendant-manufacturers’ impleader of third-party defendants under ARCP Rule 14, and what causes of action defendants — third-party plaintiffs can maintain against third-party defendants after the original plaintiffs have dismissed their claim against the defendants.

Gary and Nancy Howard sued Carpetland of Northwest Arkansas, Inc., and Philadelphia Carpet, Inc., appellants, (Carpetland) alleging that a carpet installed in their home was defective, in that orange-pink spots had appeared on the carpet throughout the house. Carpetland believed the spots were not caused by a defect in the carpet, but by benzoyl peroxide, a bleaching agent present in certain over-the-counter acne medications. Carpetland discovered that Clearasil, an acne medication containing benzoyl peroxide, had been used in the Howard home.

Armed with that information, in January 1988, Carpetland filed a third-party compliant against appellees, RichardsonVicks, and Personal Care Products Division, Inc., manufacturer of Clearasil, (Richardson-Vicks) under ARCP Rule 14, alleging that Richardson-Vicks were liable for all or part of the Howards’ claim against them. Carpetland amended the third-party complaint to include damages caused by other claims against them based on similar incidents. These claims are widely dispersed throughout the country and have been referred to by the parties as the “nationwide claim.”

In April 1988, the Howards executed a release for $1,000, releasing Carpetland, Philadelphia Carpet, Richardson-Vicks and Personal Care Products from all liability. On April 22,1988, the trial court granted an oral motion to dismiss the Howard complaint with prejudice.

Richardson-Vicks then moved for summary judgment against Carpetland on the theory that Carpetland no longer had a claim based on indemnity. Carpetland resisted, contending the nation-wide claim against Richardson-Vicks and Personal Care Products still existed and that they had incurred attorneys fees, costs and loss of goodwill in the Howard case, for which Richardson-Vicks should indemnify them.

A hearing was held and the trial court dismissed the third-party complaint in its entirety on the premise that Carpetland had made a voluntary settlement with the Howards which extinguished any claim Carpetland might then have based on indemnity. On appeal, Carpetland argues two points: the trial court erred by dismissing the claim for damages incurred in connection with the Howards’ action and by dismissing the claim based on the nationwide losses.

With respect to the Howard claim, the trial court found that because Carpetland had voluntarily settled with the Howards, they were not entitled to indemnification. Larson Machine, et al. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). Carpetland does not dispute the court’s finding that their actions were voluntary, but they do object to the legal conclusion of the trial court attendant on this finding. We cannot sustain the argument.

Larson states that the theory of indemnity is based on “equitable principles of restitution which permit one who is compelled to pay money, which in justice ought to be paid by another, to recover the sums so paid. . . .”

It is a general rule of law that the indemnitee on an implied covenant for indemnity against loss or damage cannot recover from the indemnitor upon a mere showing that the indemnitee had incurred liability, but he must show that he has suffered actual loss by payment or satisfaction of a judgment or by other payment under compulsion. [Our emphasis].

That is generally correct, but it must be noted that “compulsion” to pay is not confined to a judgment or court order:

Indemnity against losses does not cover losses for which the indemnitee is not liable to a third person, and which he improperly pays. But a person legally liable for damages who is entitled to indemnity may settle the claim and recover over against the indemnitor, even though he has not been compelled by judgment to pay the loss. The fact of voluntary payment does not negative the right to indemnity since a person confronted with an obligation that he cannot legally resist is not obligated to wait to be sued and to lose a reasonable opportunity for compromise. Such recovery is subject to proof of liability and the reasonableness of the amount of the settlement. 41 Am. Jur. 2d Indemnity, § 33 (1968).

And it is also stated in Morrissette v. Sears Roebuck & Co., 322 A.2d 7 (N.H. 1974):

While a prejudgment payment in settlement does not extinguish a right of indemnity [citation omitted], the third-party plaintiff must show that the settlement was made under legal compulsion, rather than as a mere volunteer. . . .

Carpetland has made no showing in this regard. Thus, Carpetland’s exposure to a judgment, the advisability of reaching a settlement, or the reasonableness of the amount are not matters of record. Consequently, the trial court was correct in finding Carpetland acted voluntarily and that the claim of the Howards, and any costs as a result of that claim, were extinguished as a matter of indemnity as between Carpetland and RichardsonVicks.

As to the claim based on nationwide losses, the basis for the dismissal with prejudice is not stated in the trial court’s letter opinion. At the hearing, the trial court gave two reasons for dismissing the nationwide claim. The first was that ARCP Rule 14 does not allow extended claims, and second, even if it did, the nationwide claim was too unwieldy and inconvenient for that court to manage. The trial court’s letter opinion is not explicit, merely noting that:

As I indicated over a year ago, it is my intention to dismiss the nationwide claims by Carpetland and Philadelphia Land Carpet Division of Shaw Industries.

We are not aware of any cases of our own touching on whether Rule 14 would allow expanded claims against a third-party defendant, so we have looked to the nearly identical federal rule for guidance. While Rule 14 requires that the claims be against a party secondarily liable to the defendant and be based on defendant’s liability to plaintifff, Rule 14 must be construed in conjunction with the other rules to give as much effect as possible. C. Wright, A. Miller and M. Kane, Federal Practice & Procedure: Civil 2d § 1442 (1990). In this case, it must be read in conjunction with Rule 18 and Rule 42. Rule 18 reads: “A party asserting a claim for relief as any original claim, counterclaim, cross-claim, or third-party claim may join either as independent or as alternate claims, as many claims as he may have against an opposing party, provided, that nothing herein shall affect the obligation of a party under Rule 13(a) [Compulsory counterclaims].” See Wright, supra § 1452.

Wright concludes a trial court should, under the rules, allow joinder of claims such as those in the cases before us, even if brought in under Rule 14. However, that is not the end of Wright’s analysis:

Once a court has determined that a proper third-party claim has been asserted, it should allow joinder of any other claims the third-party plaintiff may have against the third-party defendant. . . .
It also should be noted that Rule 18 deals only with the permissibility of joining additional claims to third-party claims under Rule 14. As the Advisory Committee commented in its Note to the 1966 amendment to Rule 18: ‘A claim properly joined as a matter of pleading need not be proceeded together with other claims if fairness or convenience justifies separate treatment. ’ Therefore, separate trials or severance still are available when proper. W right, supra, § 1452. [Our emphasis].

Whether the trial court chooses to hear all the claims together, or orders severance under Rule 42, is largely discretionary. Discussing the relationship between Rule 18(a) and Rule 42(b), Wright states:

The 1966 amendment eliminated any confusion on the point, and it now should be clear that the court actually had no discretion to determine what claims a party may or may not join in his pleading. As a practical matter however, Rule 18(a) must be read in conjunction with the practice under Rule 42(b), which gives the court extensive discretionary power to order separate trials of claims or issues. [Our emphasis]. Wright, supra, § 1586.

We believe the trial court was mistaken in its finding that it was not allowed to expand Rule 14 to the extent Carpetland proposed, adverting to unwieldiness and inconvenience. Nor do we find a basis in the record for the dismissal of the nationwide claim with prejudice. Under Rule 18, the trial court may sever causes at its discretion but may not dismiss them. If the trial court had in mind the doctrine of forum non conveniens, Ark. Code Ann. § 19-4-101E (1987), that, too, would be erroneous, except upon a showing of factors wholly absent from this record. Country Pride Foods, Ltd. v. Medina & Medina, 279 Ark. 75, 648 S.W.2d 485 (1983). If the assumption was that ARCP Rule 14 gave the trial court discretion to hear or not to hear claims against third-parties, that is not correct, it could hear the claims or sever them.

Appellants have raised one further point. Following the hearing on the dismissal of Carpetland’s third-party complaint, they moved for ARCP Rule 11 sanctions against RichardsonVicks on a number of grounds. In response, Richardson-Vicks essentially denied the allegations and sought sanctions on their own behalf. No hearing or further motions were taken on the issue of sanctions and we find no mention in the record of a ruling on the motions for sanctions.

We have held many times that the burden of obtaining a ruling is on the movant. Objections and matters left unresolved are waived and may not be relied upon on appeal. McDonald v. Wilcox, 300 Ark. 445, 780 S.W.2d 17 (1989); Mine Creek Contractors, Inc. v. Grandstaff, 300 Ark. 516, 789 S.W.2d 543 (1989); Richardson v. State, 292 Ark. 140, 728 S.W.2d 510 (1987); Britton v. Floyd, 293 Ark. 397, 738 S.W.2d 408 (1987). Here, not only did appellants fail to get a ruling, they failed to request or pursue a hearing which would have been necessary in order to resolve the factual issues on the sanctions claims. See Brattonv. Gunn, 200 Ark. 1409, 777 S.W.2d 219 (1989). There is nothing on appeal for us to review in this case, and the question is waived.

Affirmed in part, reversed in part and remanded.

Corbin and Brown, JJ., not participating.


source: Caselaw Access Project

author: Steele Hays, Justice. Robert H. Dudley, Justice, Tom Glaze, Justice,

license: Public Domain

text:
    Gary SCOGGINS and Jerriah Scoggins v. SOUTHERN FARMERS’ ASSOCIATION and Larry Latimer
    90-104
    803 S.W.2d 515
    Supreme Court of Arkansas
    Opinion delivered February 4, 1991
    [Rehearing denied March 4, 1991.]

      Gary Eubanks & Associates, by: Gary L. Eubanks and James Gerard Schulze, for appellants.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee Southern Farmers’ Assoc.

      Matthews, Sanders, Liles & Sayers, by: Marci Talbot Liles for appellee Larry Latimer.
   Steele Hays, Justice.

This personal injury case arises from a three-way motor vehicle collision. Under icy weather conditions, a Coca-Cola Bottling Company truck going north collided with a southbound automobile driven by Gary Scoggins, sending the Coca-Cola truck into a spin and the Scoggins vehicle onto the right shoulder. The Scoggins vehicle was followed by a Southern Farmers’ Association truck driven by Larry Latimer. In attempting to avoid the jackknifing Coca-Cola truck, Latimer veered to the right where he saw Scoggins in his path. He steered to the left to avoid Scoggins but struck the rear of the Coca-Cola truck and collided with the Scoggins vehicle, rendering Gary Scoggins a paraplegic.

Gary and Jerriah Scoggins sued Coca-Cola, Southern Farmers’ Association and Larry Latimer. Just prior to trial, a settlement between Coca-Cola and the Scogginses released Coca-Cola from the litigation and the trial proceeded, resulting in a verdict for the defendants.

On appeal, the Scogginses charge the trial court with two errors: one, in permitting the defendant Latimer to testify as to a safe following distance but refusing to permit the driver of the Coca-Cola truck (Donald Houston) to testify to the same matter and, two, in submitting AMI Civ. 3d 614 (sudden emergency) to the jury over plaintiffs’ objection. We hold that AMI Civ. 3d 614 was not inappropriate to the proof and that the evidentiary ruling was within the'trial court’s discretion. The judgment, therefore, is affirmed.

I

The Evidentiary Ruling

As part of the Scogginses’ case in chief, portions of the deposition of Donald Houston were read to the jury. The following segment was excluded:

(BY MR. EUBANKS):
Q: “What do you consider to be a safe traveling distance at that particular time out there?”
A: “Well, I believe everybody judges their own.”
Q: “I understand that. This is Mr. Matthews’ question.”
A: “Personally, me, probably three hundred feet.”
Q: “Three hundred feet. All right, sir. And Mr. Latimer is one hundred and fifty, two hundred feet from you — two fifty — one fifty to two fifty.”
A: “Uh-huh.”
MR. EUBANKS: And if allowed, the Plaintiff would have also read from Mr.Houston’s deposition, commencing at page 45, line 1, and these were my questions:
Q: “You mentioned when you first saw the Scoggins’ vehicle you could also see the Latimer tractor trailer rig?”
A: “Yes, sir.”
Q. “In the deposition we’ll say approximately how far you thought they were, but one more time, how far do you estimate there was between the two vehicles when you first saw them?”
A: “A hundred and fifty, to two hundred and fifty foot.”
Q: “Okay. And I believe you estimated that based on the conditions on the road. At that time, you felt that a safe distance was three hundred feet?”
A: “Well, that would be my opinion, not exactly some other driver’s opinion.”
Q: “Was that your opinion?”
A: “Yes.”
A: “I might as well do this now, because we’ll do it in the courtroom. Are you telling us that in your opinion he was closer than he should have been under those condition?”
A: “No, sir, I’d say I was closer —“ and then there is a dot, dot — “that he’d be closer than I would feel comfortable at, yes.”
Q: “But, you’re not attempting to make any judgment for him?”
A: “No, sir.”
Q: “That’s his decision?”
A: “That’s his decision. He drives his and, you know, he has a feel of what he’s doing.”
Q: “But it was closer than what you felt safe.”
A: “Yes.”

Appellants’ theory of the case is that Latimer was between one hundred fifty and two hundred fifty feet behind Scoggins when the initial impact occurred. Thus, they argue, a crucial issue was whether Latimer was following too closely, and Houston’s proffered testimony was probative of a failure by Latimer to keep a safe distance.

Expert Witness Premise

Appellants maintain that because Houston had driven a truck for thirty-one years, twenty-five of that for Coca-Cola, he was qualified as an expert by knowledge, experience and training to state an opinion as to a safe distance for Latimer’s truck. They cite Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984), for the proposition that in determining whether a witness is permitted to state an opinion as an expert, too rigid a standard should be avoided.

A.R.E. Rule 702 (Testimony by experts) provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

However, it is clear that appellants proffered Houston’s testimony not as an expert, but as an opinion by a nonexpert. During an in chambers discussion of this issue, the following occurred:

THE COURT: Let me ask you this: Are you trying to make this man (Houston) an expert, too?
MR. EUBANKS: No.

We think, in effect, the appellants are asking us to decide de novo whether Houston was “qualified as an expert by knowledge, skill, experience, training, or education.” That we decline to do, if for no other reason than because the issue was not first presented in that context to the trial court. The result is we have no information as to Houston’s familiarity with the Latimer vehicle, its braking mechanisms, its cargo weight, or any other relevant factors from which to determine whether Houston was qualified as an expert. That determination must first be made at the trial level and when it is challenged on appeal, the issue is whether the appellant has met the heavy burden of demonstrating that the trial court has abused its discretion. Sims v. Safeway Trails, Inc., 297 Ark. 588, 764 S.W.2d 427 (1989). Obviously, we are unable to hold he succeeded where there is no showing that the trial court ever ruled on whether Houston bore the necessary qualifications.

Lay Witness Premise

Whether the testimony -should have been admitted as the opinion of a nonexpert witness implicates A.R.E. Rule 701, which provides:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are
(1) Rationally based on the perception of the witness; and
(2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

We find no abuse of discretion in the trial court’s ruling. That Houston’s proffered testimony was speculative is best demonstrated by his clear reluctance to state what he considered to be a safe following distance for the Latimer vehicle. Appellants have not shown us whether Houston had any familiarity with Latimer’s truck or with any of the factors which might bear on Latimer’s ability to stop. We see some analogy to Miller v. Tipton, 272 Ark. 1, 611 S.W.2d 764 (1981), where we upheld as speculative the exclusion of an opinion by a lay witness that the defendant was “going like a bat out of hell.” In short, we cannot say the exclusion of Houston’s testimony was an abuse of discretion. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990).

Appellants submit that if Latimer’s opinion is admissible, then Houston’s should be as well. We find no connection between the two rulings, either substantively or procedurally. The trial court permitted Latimer to express his opinion that he was following at a safe distance and while appellants objected to that ruling, they do not challenge it on appeal. Rather, they ask us to hold that because the trial court admitted Latimer’s opinion, it should have admitted Houston’s opinion. But the rulings were not simultaneous — Houston’s testimony was at a much earlier point in the trial and must stand or fall on its own merit, not in correlation to the later ruling as to Latimer. Nor did appellants, in objecting to the Latimer testimony, ask the trial court to reconsider its exclusion of Houston’s testimony.

Linder Rule 701 it was for the trial court to determine whether the Houston opinion was rationally based and helpful to a clear understanding of his testimony or the determination of a fact in issue. The admissibility of nonexpert opinion evidence is discretionary and we will not reverse unless the trial court has abused his or her discretion. White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990); Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980). Given the obvious reluctance of the witness (Houston) to express an opinion as to what following distance was appropriate for an oncoming vehicle under extraordinary weather conditions, the absence of any proof that the difference between two hundred fifty feet and three hundred feet would have had any bearing on Latimer’s ability to avoid both the Coca-Cola truck and Gary Scoggins and, finally, the fact that the trial court carefully considered the proffered testimony in camera before excluding it, we cannot hold that an abuse of discretion occurred. To say otherwise would, we believe, be simply the equivalent of substituting our own judgment for that of the trial judge.

II

The Jury Instruction

The facts, stated from the appellees’ point of view, indicate that Latimer had been behind Scoggins for some miles and though he had earlier thought to pass when an opportunity arose, because of increasing sleet he ruled that out and remained some distance behind. With ice accumulating on his windshield La-timer did not see the impact between Houston and Scoggins, thus his initial perception was of the Coca-Cola truck jackknifing into the south-bound lane sliding toward him. As earlier noted, when he veered to his right to evade the truck, he saw Scoggins on the right shoulder and was unable to avoid either vehicle.'

Over Scoggins objection, the court instructed the jury in accordance with AMI 614:

SUDDEN EMERGENCY
A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation.

Scoggins insists it was error to give the instruction because it was Latimer’s negligence that produced the emergency and in that situation the instruction should not be given. In Ashmore v. Ford, 267 Ark. 854, 591 S.W.2d 666 (Ark. App. 1979), Justice Newbern noted divergent lines of cases dealing with AMI 614, concluding:

These approaches are not inconsistent. When they are combined, the result is that the trial judge may give the instruction in cases where there is some negligence on the part of the party seeking the instruction, but the instruction should not be given where the evidence is very strong that the party requesting the instruction has “created” the emergency by his own negligence.

We regard that reasoning as sound, and we find no evidence that Latimer’s negligence produced the emergency, which seems undeniably to have been real and sudden. Whether Latimer maintained a safe distance or a proper lookout were submissible issues of negligence, but the relevant proof could not be characterized as “very strong” that the emergency was his own creation. The trial court heard the proof in its entirety and obviously considered AMI Civ. 3d 614 to be appropriate. We take no exception to that ruling.

Affirmed.

Dudley, Glaze, and Brown, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. I dissent from that part of the majority opinion which holds that one lay witness, a truck driver, may give his opinion about the safe distance between vehicles, but another equally qualified lay witness, another truck driver, may not. This case involves a three vehicle accident which occurred in icy weather conditions. The driver of the first truck, the Southern Farmers’ Association truck, Larry Latimer, was allowed to testify over appellants’ objection that he was not following too closely under the icy conditions. He testified as a lay witness under Rule 701, and was not required to qualify as having any experience in driving under icy conditions. On the other hand the driver of the second truck, the Coca-Cola truck, Donald Houston, an eyewitness to the wreck, was not allowed to state his opinion about whether the Southern Farmers’ Association truck was following too closely under the conditions. He was just as qualified to give a lay opinion about driving on icy roads as was the driver of the Coca-Cola truck.

Both had been driving on the icy road that day and both were basing their opinions on their personal knowledge of the amount of ice that was on the roadway. Both expressed opinions lay persons would form on the basis of observed facts. To me it was an abuse of discretion for the trial court to admit one but not the other.

The Coca-Cola truck driver’s testimony was rationally based on his perception of the road at the time and would have been just as helpful in the determination of the main issue as was the Southern Farmers’ Association truck driver’s testimony.

A.R.E. Rule 701 requires nothing more than a rationally based observation for lay witness opinion testimony. Carton v. Missouri Pacific R.R. Co., 303 Ark. 568, 798 S.W.2d 674 (1990). Today, A.R.E. Rule 701 is not a rule against opinions, but rather one which conditionally favors them. Id. at 571. We have long followed the rule, now set out by A.R.E. Rule 701, that a lay witness may give his opinion on a subject if he is qualified by experience and observation about the subject matter. For example, in Bowen v. State, 100 Ark. 232, 140 S.W. 28 (1911), we wrote:

The appellant contends that this testimony was incompetent, for the reason that the witnesses had not shown that they had any knowledge of what the usual rate of speed of an automobile is, or that their experience would enable them to judge of the rate of speed of an automobile.
The killing occurred on the streets of Little Rock, where automobiles are constantly passing. Transportation by automobile may be taken as a matter of common knowledge and general information. It does not require the knowledge of an expert to determine whether an automobile is moving at a usual or unusual rate of speed. Any person of ordinary understanding and common observation is competent to speak upon that question. In the case of Railway Company v. Thomason, 59 Ark. 143, this court said:
“The witness was testifying to matters of fact which he says he had observed, and about which men of common understanding might be informed upon observation. Any person cognizant of the facts upon which he bases his judgment may give his opinion on questions of identity, size, weight, distance and time. Such questions are open to all men of ordinary information.” Again:
“We can see nothing in the distance or range of the reflection of light by the headlight of an engine calling for the exercise of peculiar skill, the possession of professional knowledge, or requiring any peculiar habit of study in order to qualify a person to understand it, and to testify about it intelligently.” The same may be said as to the speed of an automobile. See, also, Little Rock Traction & El Co. v. Nelson, 66 Ark. 498; Miller v. State, 94 Ark. 544; St. Louis & S.F. Ry. Co. v. Brown, 62 Ark. 254.
In State v. Watson (Mo.) 115S.W. 1011, there was a conviction for manslaughter, the charge being similar to that under consideration. Several witnesses, who saw the automobile running, testified that defendant was driving the automobile at a high rate of speed. The defendant in that case objected to the testimony, contending that it was error to permit the witnesses “who knew nothing about the operation of automobiles to give their opinions as to the rate of speed at which the automobile being operated by the defendant was running just before the deceased was struck.” The court in that case said:
“The rate of speed at which an automobile is running is not-a matter exclusively for the testimony of experts. If that was true, then, as has been intimated by this court, it would be a matter of impossibility for those injured by the running of vehicles, either automobiles, street cars, or regular railroad cars, to always have experts at hand to show what rate of speed was being made. A holding of that character would be wholly impracticable, and do a great injustice to many persons who had been negligently injured by vehicles of the character indicated running at an excessive rate of speed. At last, the only reasonable settlement of that question is to hold that witnesses who at least know what an automobile is and have seen them operated might give their opinions as to the rate of speed. As to the weight to which such opinions are entitled is a matter entirely for the jury.” See, also, 3 Wigmore on Evidence, § 1977; Commonwealth v. Sturtivant, 117 Mass. 122; State v. Welford, 29 R.I. 450.

In sum, the driver of the second truck, the Coca-Cola truck, should have been allowed to give his' lay opinion about whether the driver of the Southern Farmers’ Association truck was following too closely.

The majority opinion, in rationalizing its basis, analogizes this holding to the exclusion of a witness’s statement that a car was “going like a bat out of hell.” See Miller v. Tipton, 272 Ark. 1, 611 S.W.2d 764 (1981). Such an analogy is fallacious for at least two reasons. First, the two cases are not analogous. For the two to be truly analogous the “going like a bat” case would have to include a holding that one lay witness could testify that the car was “going like a bat” and another could not do so. As one would suspect, the cited case does not so hold. Second, the “going like á bat” statement was excluded in Miller v. Tipton, supra, because it was “speculative and not helpful to a clear understanding.” The advisory committee’s note to Rule 701 is most helpful in understanding this ruling. It is as follows:

Limitation (a) is the familiar requirement of firsthand knowledge or observation. Limitation (b) is phrased in terms of requiring testimony to be helpful in resolving issues. Witnesses often find difficulty in expressing themselves in language which is not that of an opinion or a conclusion. If attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule.

“Going like a bat” is considered to be too indefinite, vague, or meaningless, without anything more, to indicate a speed. It could be excluded for “lack of helpfulness.” However, in the case at bar the second driver’s testimony is not confusing, and it is not unreliable. Instead, it reflects that one driver was simply hesitant to testify against another. The testimony should have been admitted.

Accordingly, I dissent.

Brown, J., joins in this dissent.

Tom Glaze, Justice,

dissenting. While I agree with the majority on all other points, I must disagree with its conclusion that the trial court properly excluded the lay opinion testimony of Donald Houston. Houston’s proffered testimony was based on his perception of what happened at the time of the accident. Houston, an experienced truck driver, estimated the distance of Latimer’s truck to be 150 to 250 feet behind the Scoggins’s car and stated that, based on the conditions of the road, he believed 300 feet would have been a safe following distance. We have allowed similar lay testimony in the past. See Townsend v. State, 292 Ark. 157, 728 S.W.2d 516 (1987) (where an experienced driver, who saw the defendant’s vehicle and the accident, related the conditions of the road and compared her car’s speed with the defendant’s, this court held the driver’s lay opinion estimate of defendant’s speed at seventy miles an hour was admissible under A.R.E. Rule 701).

The trial court excluded Houston’s testimony because it was confusing, and the majority affirms because it is speculative. I disagree with both rulings. Houston gave his clear perception of the accident and his opinion that Latimer was following too close. Any weakness in his testimony should be tested by cross-examination, but the testimony is not inadmissible. As can be gleaned from Houston’s testimony as set out in the majority opinion, Houston limited his testimony stating that he was not relating “some other driver’s opinion” or “attempting to make a judgment” call for Latimer. Houston’s qualifying remarks placed his opinion in context so the jury could better understand and weigh what he meant by his testimony. In my view, the trial judge clearly abused his discretion in excluding Houston’s testimony. Thus, I would reverse and remand this cause for a new trial.

Brown, J., joins this dissent.

      Both trucks were tractor-trailers known as “18 wheelers.”

      Record, p. 428.


author: David Newbern, Justice.

text:
    DEATH AND PERMANENT TOTAL DISABILITY TRUST FUND v. HEMPSTEAD COUNTY and Public Employee Claims Division
    90-274
    803 S.W.2d 527
    Supreme Court of Arkansas
    Opinion delivered February 4, 1991

      David L. Pake, for appellant.

      Public Employee Claims Division, by: Michael E. Surguine, for appellee.
   David Newbern, Justice.

This is a workers’ compensation case. We review an Arkansas Court of Appeals decision Death and Permanent Total Disability Trust Fund v. Hempstead County, 32 Ark. App. 36, 796 S.W.2d 351 (1990), interpreting Ark. Stat. Ann. § 81 -1310(c) (2) (Repl. 1976) which applied to an injury which occurred in 1977. The statute is as follows:

The first Fifty Thousand Dollars ($50,000) of weekly benefits for death or permanent total disability shall be paid by the employer or his insurance carrier in the manner provided in this Act [§§ 81-1301 - 81-1349]. An employee or dependent of an employee who receives a total of Fifty Thousand Dollars ($50,000) in weekly benefits shall be eligible to continue to draw benefits at the rates prescribed in this Act but all such benefits in excess of Fifty Thousand Dollars ($50,000) shall be payable from the Death and Permanent Total Disability Bank Fund.

Due to a hip injury, the appellee, Public Employee Claims Division, began paying Coy Hutson permanent total disability benefits of $84.00 per week. Hutson died of complications resulting from hip replacement surgery on November 14, 1981. The Public Employee Claims Division thereafter paid Hutson’s widow $47.60 per week in widow’s benefits. The Death and Permanent Total Disability Trust Fund contends its obligation does not commence until the employer or insurance carrier has paid $50,000 in weekly benefits to the widow. The Public Employee Claims Division contends that the Fund’s obligation begins when a total of $50,000 in weekly benefits has been paid, including both the payments to the injured employee and those to the widow.

The Workers’ Compensation Commission held that the Public Employees Claims Division could credit the weekly benefits paid to Hutson as well as the amount paid to his widow against the $50,000 maximum. The court of appeals affirmed, and so do we.

We agree with the Fund’s contention, supported by its citation of Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986), that a principal rule used to interpret statutory provisions is that we give the words their ordinary meaning and apply them just as written. That rule does not work, however, when there is ambiguity. The first sentence in the statute presents a little ambiguity. The problem is that it refers to $50,000 only once, and speaks of the “first” $50,000, but is uses the disjunctive “or” between “death” and “permanent total disability.” If the general assembly intended that the employer be required to pay $50,000 in death benefits or $50,000 in permanent total disability benefits before the Fund would pick up the payments, a clearer statement would have been “The first Fifty Thousand Dollars of weekly benefits for death or the first Fifty Thousand Dollars of weekly benefits for permanent total disability shall be paid by the employer. . . .” As it is written, the sentence leaves some doubt.

The ambiguity is heightened when the second sentence is considered with the first. Again, the disjunctive “or” is used, this time between “employee” and “dependent,” but the sentence concludes by again referring to only one $50,000, i.e., “all such benefits in excess of Fifty Thousand Dollars ($50,000) shall be payable from the Death and Permanent Disability Bank Fund.” The latter statement seems to say that the employer is responsible for a total of $50,000 whether it be paid to the employee, his widow or, as in this case, both.

When confronted with language which is ambiguous, we must attempt to ascertain the general assembly’s intent. Ragland v. Alpha Aviation, Inc., 285 Ark. 182, 686 S.W.2d 391 (1985). While it is true that the benefits to the employee and the benefits to his survivors are entirely different, originating in different portions of the workers’ compensation laws, that fact is of no consequence in deciding the issue here. The question is the extent of the burden the employer must bear prior to the fund taking over.

We cannot think why the general assembly would require a greater expenditure in weekly benefits if an employee should die, for example, just before the employer paid the last weekly payment. There is no reason we can think of for making that employer pay out another $50,000 to the deceased employee’s dependent before the fund is required to pay. We believe the intent of the legislation was to create a maximum of $50,000 of weekly benefits against any employer of a worker who becomes permanently totally disabled as the result of a compensable injury. By stating that “all such benefits in excess of Fifty Thousand Dollars ($50,000) shall be payable” by the Fund, both permanent total disability and dependents’ benefits resulting from the workers death are included, and employers of employees who become totally disabled as the result of a compensable injury will have the same maximum liability for weekly payments.

Presumably, the reason for the limit on ■ an employer’s liability is to keep workers’ compensation from being too burdensome on the employers who, through insurance or self-insurance reserves, must pay for it. The fund will undoubtedly have to pay different amounts in various cases where the maximum has been reached, but that would be true regardless of the maximum placed on the employers’ responsibility.

In addition to our conclusion concerning the intent of the general assembly, we find the result we reach here to be compatible with that we reached in Hill v. CGR Medical Corp., 282 Ark. 35, 665 S.W.2d 274 (1984). There the issue was whether an employer had to pay each dependent of a deceased permanently totally disabled worker before the fund was required to pay. Our opinion included the following:

The language and intent of the statute are apparent. Had the General Assembly intended that each dependent must draw $50,000 in the weekly funds before becoming eligible to draw from the bank fund the act would have so stated and would not have provided that the employer or its carrier pay the first $50,000 and would not have provided that all benefits in excess of $50,000 are payable from the bank fund. (Emphasis in original.)

While the issue there was different, as the court was not concerned with the conjunctive “or,” the underlying rationale is one of those we apply here. Had the general assembly intended the employer to be liable for more than $50,000, it would have said so much more clearly.

Affirmed.


author: David Newbern, Justice. Robert L. Brown, Justice,

text:
    James Dominic LESHE v. STATE of Arkansas
    CR 90-171
    803 S.W.2d 522
    Supreme Court of Arkansas
    Opinion delivered February 4, 1991
    [Rehearing denied March 4, 1991.]

      Gibson & Deen, by Thomas D. Deen, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, James Dominic Leshe, was charged with two counts of rape, one by deviate sexual act and the other by sexual intercourse, of his 10-year-old stepdaughter. He was acquitted of the sexual intercourse count and convicted of rape by deviate sexual act. He has stated seven points of appeal. Reversible error occurred when a social worker was allowed to give hearsay evidence of the victim’s statement to her. The judgment is reversed, and the case is remanded. We will discuss other points as necessary for guidance in the event of retrial.

1. Sufficiency of the evidence

The state produced sufficient evidence to take the question of Leshe’s guilt to the jury. There was testimony of Ms. Weindorf, an Ashley County social worker, relating a statement of the victim to her that Leshe had engaged the victim in oral intercourse. There was also Ms. Weindorf s testimony and that of Deputy Sheriff Harris that Leshe, when confronted with Ms. Weindorf s statement of what the child had said, made a statement which could have been considered inculpatory. The problems here are with the admissibility of that evidence, but we do not consider trial errors until after we have determined sufficiency of the evidence, including that which perhaps should not have been before the jury. Harris v. State, 284 Ark. 247, 681 S.W.2d 334 (1984).

2. Hearsay testimony of victim’s statement

The trial occurred on March 21,1990. On the previous day, the prosecution notified Leshe’s counsel that the victim might not be present to testify and thus the state would rely on the testimony of Ms. Weindorf. When the trial began, Leshe’s lawyer moved in limine to disallow Ms. Weindorf s testimony on the ground that it was hearsay. He asserted that the state could not show that the witness was unavailable and claimed that Leshe’s right to confront the witness was at stake.

At a hearing on the motion, Ms. Weindorf stated she knew the victim and her mother had moved from Ashley County, where the offense allegedly occurred, to Desha County, where the victim’s mother had married a man named Streeter, and then to the State of Mississippi. She had this information a month before the trial date. Ms. Campbell, a Desha County social worker to whom the case file had been transferred, testified that she obtained the address of the victim and her mother in Leland, Mississippi, and had a Mississippi social worker check on the family. She said the Mississippi social worker said she went to the address where she found the victim, her mother, and Leshe. Ms. Campbell’s information was, however, that Leshe was living in Greenville, Mississippi. Ms. Campbell notified the prosecutor of the victim’s Mississippi address around February 12, 1990.

The case had been set for trial in mid-February but was continued at the defendant’s request. An employee of the prosecutor testified that in February the victim’s mother called the office to say she wanted to drop the charges. At a hearing in connection with the first trial setting, the prosecution asked the court to require Leshe’s counsel to assure the presence of the victim when the trial was reset. The request was refused.

It was clear that the prosecutor knew more than a month before the second trial date that his witness had moved out of the state and he might have a problem getting her to appear.

A Deputy Circuit Clerk for Ashley County testified that the prosecutor’s office requested that a subpoena for the victim and her mother be mailed to a middle school in Mississippi. It was placed in the U.S. mail, without a request for a receipt upon delivery, on March 16, 1990. The prosecutor stated that the school principal had agreed to deliver the subpoena but it was not received by him. The prosecutor also stated that he knew from talking to Mississippi officials that Leshe was living with the victim and her mother and would show that Leshe’s influence was the reason the victim was not present to testify.

A deputy sheriff from Mississippi testified that he was told by the victim’s mother that Leshe was living with her in Mississippi.

The court found that the victim was living in a household with her mother and Leshe and was thus not in a position to exercise her desire to testify. He also stated the Confrontation Clause was not a problem because the victim had made statements to different persons, and “that to me, constitutes reliability.”

a. Rule 804(b)(5)

i. Unavailability

The argument of the state at the trial and here is that the witness was unavailable and thus Ms. Weindorf s hearsay testimony could be admitted under ARE 804(b)(5) which makes an exception if the declarant is unavailable as a witness and there are circumstantial guarantees of trustworthiness equivalent to those stated for other exceptions.

In Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980), this court stated it was error to permit introduction of testimony from a prior trial because the state had dallied too long in its pursuit of the witness for the second trial to use the uniform act by which witnesses are obtained from other states for criminal trials. Ark. Code Ann. § 16-43-403 (1987). The state’s failure to utilize the uniform act procedure when it could have done so was also held fatal to an attempt to substitute hearsay evidence in Doles v. State, 275 Ark. 448, 631 S.W.2d 281 (1982).

While a trial court has discretion in determining whether a witness is “unavailable,” that discretion is not unlimited. Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989). In this case no effort whatever was made to serve a subpoena on the state’s key witness at her Mississippi address which was readily available. There was no “good faith effort” of which the Supreme Court wrote in Barber v. Page, 390 U.S. 719 (1968), and of which we wrote in Satterfield v. State, 248 Ark. 395, 451 S.W.2d 730 (1970). The trial court erred in finding the victim was unavailable in these circumstances.

if. Reliability

The state argues that the hearsay evidence was admissible under Rule 803(24) if not under Rule 804(b)(5). The former rule is identical to the latter with the exception that the latter contains the unavailability requirement. Both require “equivalent circumstantial guarantees of trustworthiness.”

It was error to conclude that because the child allegedly had made statements about being abused to “others” that the narrative read to the court by Ms. Weindorf was reliable evidence of what the child had said. The court’s remark about the child having made the accusation to others than Ms. Weindorf related to the general reliability of the child. The court’s concern, however, must be with respect to the reliability of the statement reported by Ms. Weindorf. As we pointed out in Ward v. State, 298 Ark. 448, 770 S.W.2d 109 (1989), the reliability of the declarant is a question for the jury to determine; the reliability of a hearsay report of what the declarant said is to be the focus of the court in determining admissibility.

To perform that task, the court looks to the indicia of reliability found in the first four exceptions to the hearsay rule, Rule 804. While these are not exclusive indicators of the reliability of hearsay evidence, some “circumstantial guarantees of trustworthiness” are required.

The court asked no questions of Ms. Weindorf about the conditions under which the statement was taken or her manner of taking it, but her testimony revealed some of the details. She stated the child did not volunteer information but responded to her questions. Ms. Weindorf did not have the original notes she made of the conversation, but read from a narrative prepared from those notes on the day of the interview. The state points to the use of explicit sexual terminology by the child as evidence that the statement was reliable because the child was likely to have gained that knowledge as a result of being a victim of rape. It is pretty clear, however, that at least some the terminology was that of the interviewer rather than the child. We know the child responded to questions, but we do not know the questions asked or precisely what the responses were.

The testimony of Ms. Weindorf in which she read her narrative of the victim’s statement to her was not admissible under Rule 804(b)(5) because the witness was not “unavailable,” and it was not admissible under Rule 803(24) because there were no “circumstancial guarantees of trustworthiness.”

3. Carnal abuse and rape overlap

a. Dismissal

The trial court correctly overruled Leshe’s motion to dismiss. Leshe contended that his right to equal protection of the laws was violated because the prosecution could have charged him with either carnal abuse or rape because they are the same, and carnal abuse carries a lesser sentence. He recognizes that carnal abuse and rape are both defined as sexual intercourse or deviate sexual activity with a person under the age of 14, but that carnal abuse may be committed only by a person over the age of 18. He contends there is no rational basis for the distinction.

In Sullivan v. State, 289 Ark. 323, 711 S.W.2d 469 (1986), this court recognized the overlapping definitions in the rape statute, Ark. Code Ann. § 5-14-103(a) (3) (1987), and the statute defining first degree carnal abuse. Ark. Code Ann. §4-14-104 (1987). The United States Constitution is not violated by such overlapping provisions unless it would constitute discrimination against a class of persons. See United States v. Batchelder, 442 U. S. 114 (1979). Leshe contends the statutes in question here discriminate against juveniles who may be charged with rape but not with carnal abuse. He does not, however, contend that he falls within that class and stipulated he was over 18. As he is not a member of the class he claims is affected, he has no standing to complain. Thompson v. Ark. Social Services, 282 Ark. 369, 669 S.W.2d 878 (1984).

b. Lesser included offense instruction

The trial court correctly refused to give an instruction on carnal abuse as a lesser included offense. That was the issue we decided in the Sullivan case. Leshe argues that even if we find no constitutional infirmity resulting from the overlapping statutes, we must hold carnal abuse to be a lesser offense included in rape because the statute defines a lesser included offense as one which differs from the offense charged “only in the respect that a less serious injury or risk of injury to the same person . . . suffices to establish the commission.” Ark. Code Ann. § 5-1-110(b)(2) (1987). The argument is that the general assembly must have thought carnal abuse poses a less serious threat to the victim because they gave it a lesser sentence range.

We cannot agree with such an argument. The only difference between the two definitions, one of rape and one of carnal abuse, is the requirement that the perpetrator be over 18 to commit carnal abuse. That has nothing to do with the risk to the victim. The other elements are the same. As can be determined from our explanation in the Sullivan case, the anomaly created by the two statutes came about as a result of the process of amending the carnal abuse law apparently without consideration of the rape statute. We cannot think that the general assembly intended the difference at all, much less that it thought the same act might result in a greater risk of harm to a victim because it was given a different name or might be committed by an older person.

4. Instruction on corroboration of confession

“A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” Ark. Code Ann. § 16-89-111 (d) (1987).

Ms. Weindorf testified that when Leshe was confronted with her revelation of what the victim had told her he stated “he guessed he was sicker than he thought he was.” Counsel for Leshe asked that the jury be instructed as follows:

You are instructed that a conviction may not be sustained on the evidence of a confession alone but that evidence corroborating each element of the offense is required in addition to any evidence of a confession. It is for you to determine whether or not there exists sufficient evidence of corroboration.

We disagree with the state’s contention that the court properly refused this instruction on the ground that it did not contain a reference to a confession “made in open court.” There was no open court confession here, and to have included those words just because they are in the statute would have been surplusage. The proposed instruction was relevant. We agree with Leshe’s contention that, despite the fact that no such instruction appears in the Arkansas Model Criminal Instructions approved by this court, it should have been given if it correctly instructed the jury on the law contained in the statute. We find no error, however, in the trial court’s refusal to give the instruction proffered.

The statute only requires proof that the offense was committed by someone in order to corroborate a confession. McQueen v. State, 283 Ark. 232, 675 S.W.2d 358 (1984); Smith v. State, 286 Ark. 247, 691 S.W.2d 154 (1985). See Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986). By stating that “evidence corroborating each element of the offense is required,” the instruction might have been taken by the jury to mean that there must be proof that Leshe committed each element of the offense to corroborate the confession. If a proper instruction on corroboration of a confession had been proffered, simply requiring the jury to find that the offense had been “committed,” it would have been error to refuse it. Davis v. State, 115 Ark. 566, 173 S.W. 829 (1914).

5. Confession suppression

The inculpatory statement alluded to above was allegedly made in the presence of Deputy Sheriff Harris as well as Ms. Weindorf. Harris testified that he had read to Leshe a standard rights form, and Leshe had placed his initials beside each rights statement on the form and signed his name at the bottom. Like the form we criticised in Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984), the one used here contained no express waiver provision. Leshe moved to suppress on the ground that he had not waived his rights.

In North Carolina v. Butler, 441 U.S. 469, 471 U.S. 369 (1979), the Supreme Court stated that the mere fact that a confession is eventually obtained from an incarcerated person does not conclusively show that he waived his right not to make it. The test remains, however, whether the evidence showed waiver under the totality of the circumstances, and we do not reverse unless the trial court’s conclusion is clearly against the preponderance of the evidence. Burin v. State, 298 Ark. 611, 770 S.W.2d 125 (1989).

The circumstances here suggest that the statement was made very shortly after Leshe was informed of his rights. Ms. Weindorf testified that Leshe was sober. There was no evidence of any sort of duress. We cannot say the trial court was wrong to refuse to suppress the statement.

Reversed and remanded.

Brown, J., concurs.

Robert L. Brown, Justice,

concurring. This case highlights a problem that this court will face again as complaints of juvenile sex abuse cases continue to increase. Simply stated, the problem occurs when a juvenile complainant decides not to testify against the alleged abuser or otherwise is unavailable for trial. In what form, if any, may the juvenile’s testimony be presented to the jury?

Surely the majority opinion is correct. An unsworn story told by the juvenile to a social worker and then translated into the social worker’s own words and read to the jury does not meet minimum standards of reliability. That begs the question, however, of what would have met those standards, short of direct testimony.

There is nothing to confirm that the prosecutor ever talked to the juvenile, much less recorded her statements for transcription or use at trial. A recorded statement under oath, whether video or audio, would have come much closer to assuring reliability than a social worker’s narrative. But even if recorded, admissibility would have been highly suspect without cross-examination by the defendant and clear application of a firmly rooted hearsay exception. See Bourjaily v. United States, 483 U.S. 171 (1987); Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987).

The United States Supreme Court recently departed from what had been perceived as a trend in favor of child witnesses. Coy v. Iowa, 487 U.S. 1012 (1988); Note, The Confrontation Clause Applied to Minor Victims of Sexual Abuse, 42 Vand. L. Rev. 1511 (1989). In Coy, the Court struck down a child shield law which permitted use of a one way screen in court to shield the child from actually seeing the defendant. Defense counsel was still permitted to cross-examine the child. The Court said the Iowa statute effectively denied the defendant his right to confront witnesses face-to-face.

Certain videotaped depositions of child witnesses, however, continue to pass constitutional muster. Arkansas permits the admission into evidence of depositions for alleged juvenile victims when good cause is shown. See Ark. Code Ann. § 16-44-203 (1987). That statute contemplates a deposition in judge’s chambers with cross examination by the defendant who is face to face with the alleged victim. We have upheld the constitutionality of that procedure. McGuire v. State, 288 Ark. 388, 706 S.W.2d 360 (1986). Use of this procedure, though perhaps costly, would have obviated the problems we face in this case.


author: Tom Glaze, Justice. Tom Glaze, Justice.

text:
    FISHER TRUCKING, INC. v. FLEET LEASE, INC.
    90-200
    803 S.W.2d 888
    Supreme Court of Arkansas
    Opinion delivered February 4, 1991
    [Supplemental Opinion on Denial of Rehearing March 4, 1991.]

      Rose Law Firm, A Professional Association, by: Charles W. Baker and Richard T. Donovan, for appellant.

      Davidson Law Firm, .Ltd,, by: D. Westbrook Doss, Jr., for appellee.
   Tom Glaze, Justice.

The issue in this case is whether an agreement between the Fleet Lease, appellee, and Fisher Trucking, appellant, for the “lease” of thirty-four trucks for thirty-six months was a true lease or a conditional sale in disguise. The appellant stopped making payments under the agreement after approximately fourteen months. As a result • of this breach, appellee filed suit against the appellant, and the appellant counterclaimed alleging that the agreement was actually a conditional sale which was usurious and therefore void as to the unpaid interest. Both parties filed partial summary judgment motions which included this issue. The trial court granted the appellee’s motion finding that the transaction was a true lease and that appellant was liable for its breach.

After the trial judge’s ruling on the lease issue, the parties stipulated to the facts concerning their transaction and the case was submitted to the jury solely on the issue of damages. Both sides presented testimony supporting their respective calculations on damages, and the jury awarded $1,000,000 to the appellee. Alleging that the amount of damages was excessive, the appellant made a motion for new trial under ARCP Rule 59. This motion was denied by the trial court.

On appeal, the appellant argues that the trial court erred in finding that the agreement was a true lease and not a conditional sale and in denying its motion for a new trial. While we affirm the trial court on the first issue, we agree with the appellant that the amount of damages awarded was excessive. We affirm if the appellant elects to remit the amount in excess, otherwise the cause will be remanded for a new trial.

This court has addressed on other previous occasions the issue of whether a lease was in fact a conditional sale subject to the usury defense. In doing so, the court has determined that the presence of the following factors indicates a conditional sale: 1) the lessor is a finance company; 2) the agreement puts all the risk upon the lessee; 3) the agreement provides the same remedies upon the lessee’s default in the payment of rent that would be available to a conditional seller or to a mortgagee upon similar delinquency; 4) the agreement provides that the lessee will upon the lessor’s request join the lessor in executing financial statements pursuant to the Uniform Commercial Code and other assurances the lessor deems necessary for protection of the interest of the lessor in the equipment; and 5) there is an absence of any appreciable residual in the lessor at the expiration of the lease. See Hill v. Bentco Leasing, Inc., 288 Ark. 623, 708 S.W.2d 608 (1986), Bell v. Itek Leasing Corp., 262 Ark. 22, 555 S.W.2d 1 (1977). Under the last factor, which we have referred to as the most fruitful single test, great emphasis is put on the amount the lessee must pay to acquire title after all payments have been made. See Hill, 288 Ark. 623, 708 S.W.2d 608.

In applying the above factors to the transaction here, we first note that the facts show that the appellee, the lessor, is not a finance company but has indeed performed as a leasing company. Appellee’s sole assets were the thirty-four trucks, and it had leased those trucks to another company before having leased them to the appellant. Next, the agreement was silent as to the appellee’s remedies upon default. After the appellant defaulted in its lease payments, the appellee’s lenders repossessed the trucks and sold them; this remedy, however, was not provided for in the agreement between the appellant and appellee. In addition, the parties’ agreement did not provide for the signing or filing of any financial statements pursuant to the Uniform Commercial Code.

And finally and significantly, the record reflects that an appreciable residual existed in the appellee at the expiration of the lease. In this respect, the appellant did not have a nominal purchase option at the end of the lease period. For example, in Bell, we held that an option price for 10 % of the original contract price was nominal. Here, however, the purchase option amount was established at 50 % of the average of three appraisals to be performed by different dealerships. Such an amount certainly is more than nominal. In considering the parties’ proof as to the trucks’ values at the end of the lease period, the estimated values of each truck ranged from a low of $15,000 to a high of $23,000. Given these appraisal amounts, the lease period clearly did not exceed the expected economic life of the trucks — which is another indicator that the appellee retained an appreciable residual at the end of the parties’ lease agreement.

One of the conditional sales indicators is present in the agreement, viz., the agreement appeared to place all the operating risks on the lessee. In this regard, the lessee agreed to be responsible for all operating costs of the truck including but not limited to insurance, driver payroll, federal and state payroll taxes, fuel maintenance, licenses, and permits, highway use and ton mileage taxes and any other costs related to complying with federal and state regulations. Even so, when we consider the other factors already discussed above, we believe the trial court was correct in holding the parties’ agreement to be a lease. Thus, we affirm the trial court’s ruling that the appellee, as lessor, was entitled to a judgment on this issue as a matter of law. ARCP Rule 56(c).

We now discuss the damages awarded appellee in the sum of $1,000,000. The appellant made a motion for a new trial arguing that the jury erred in the amount of recovery. Under ARCP Rule 59(a) (5), an error in the assessment of the amount of recovery, whether too large or too small can be a ground for a new trial. When the primary issue on a motion for new trial is the alleged miscalculation of the damages and not a question of liability, we sustain the trial judge’s denial of a new trial unless there is a clear and manifest abuse of discretion. See Knoles v. Salazar, 298 Ark. 281, 766 S.W.2d 613 (1989).

Both parties presented testimony and introduced an exhibit to support their respective measure of damages. The appellee’s evidence established the amount of damages at $1,209,078.28; the appellant’s estimation of damages was much lower, $30,786.47. The jury was instructed that the measure of damages for breach of an equipment lease is the amount that would put the lessor in as good a position as the lessor would have been had the lessee performed his obligations under the lease. In determining the amount of damages suffered by the appellee, the jurors were told they may consider, among others, the following factors: 1) remaining lease payments due and owing from the date of the breach through the remaining term of the lease; 2) the market and rental value of the trucks at the end of the term of the lease; 3) the amount due to appellee’s lenders at the end of the lease; and 4) sums received by the appellee’s lenders upon the sale of the trucks and the amount of deficiencies owing.

When the appellant breached the lease agreement, the trucks were sold by the appellee’s lenders and the amount from the sale was applied to the trucks’ loan balance. In the appellee’s calculations of the damages no credit is given to the appellant from the amount from the sale of the trucks. On the other hand, the appellant in calculating the amount of damages failed to consider the remaining lease payments due under the agreement and therefore failed to put the appellee in as good a position as if the lease had been performed.

Considering the appellee’s figures offered at trial, the appellant owed $996,936.10 in remaining lease payments to the appellee’s lenders. In addition, under the agreement at the end of the lease period, the appellee had the right to sell the trucks at an estimated or appraised value of $660,000 and to use that money to pay off the remaining loan balance of $246,235.50. Appellee, in calculating damages, proposed that any amount left over was to be split between the appellant and appellee. The appellee also included incidental damages of $6,159.68.

Taking the appellee’s foregoing calculation of damages, the total amount of damages owed the appellee under the agreement is $1,209,078.28. When the lease was breached, the appellee’s lenders received $892,000 from the sale of the trucks and insurance proceeds received due to the loss of one of the vehicles. As previously noted, appellee, in its calculation, never credited this amount against the lease balance amount appellant owed under the parties’ agreement. Thus, appellee’s failure to deduct the sale proceeds amount from its total amount of damages under the lease results in the appellee getting a double recovery in that amount. Therefore, we must find that the trial judge abused his discretion in not granting a new trial under ARCP Rule 59(a)(5). When this $892,000 amount is deducted from the appellee’s total amount of damages due under the lease, the correct amount of damages is $317,078.28. If the appellee remits $682,921.72 pursuant to this holding, the rest of the judgment will be affirmed. Otherwise, the cause must be remanded for a new trial. See Shepherd v. Looper, 293 Ark. 29, 732 S.W.2d 150 (1987); Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986).

804 S.W.2d 367

MARCH 4, 1989

Davidson Law Firm, Ltd., by: D. Westbrook Doss, Jr., for petitioner.

No response.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Tom Glaze, Justice.

Appellee files a petition for rehearing stating this court failed to address several matters appellee addressed in its brief. We find no merit in appellee’s petition and deny it, but do mention its questions as they pertain to the assessment of damages issue addressed in our opinion. Fisher Trucking, Inc. v. Fleet Lease, Inc., 304 Ark. 451, 803 S.W.2d 888 (1991).

First, appellee urges the appellant should not have been allowed to question such damages because appellant never objected to the jury instructions. We merely point out that the instructions on damages were correct; however, appellant did properly challenge error in the assessment of the amount of recovery by filing a motion for new trial under ARCP Rule 59(a)(5). Although appellee suggests the appellant was required first to file a motion for directed verdict before filing a motion for new trial, appellee is wrong. See Yeager v. Roberts, 288 Ark. 156, 702 S.W.2d 793 (1986). Second, appellee asserts that the majority never decided whether the appellant and its lenders should have received any consideration in the awarding of damages for the breach of contract between appellant and appellee. We thoroughly discussed and then decided this issue in the affirmative.

Denied.

       We note the appellant’s reliance on In re Peacock, 6 B.R. 922 (N.D. Tex. 1980) in its analysis. However, we believe the factors set out in Peacock are sufficiently covered in this court’s cases on this issue.


author: Donald L. Corbin, Justice. Robert L. Brown, Justice,

text:
    Bobby Joe FRUIT v. A.L. LOCKHART, Director, Arkansas Department of Correction
    90-297
    802 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered February 4, 1991
    [Rehearing denied February 25, 1991.]

      Appellant, pro se.

      Ron Fields, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for appellee.

      Brown, J., would grant rehearing.

   Donald L. Corbin, Justice.

Appellant, Bobby Joe Fruit, was convicted on December 11, 1981, in Crittenden County Circuit Court of aggravated robbery and second degree assault. He is presently serving a sentence of twenty-five years in the Arkansas Department of Correction. On August 22, 1989, appellant filed a petition for writ of mandamus and declaratory judgment in Jefferson County Circuit Court. In this petition he attacked his classification as a fourth offender for purposes of parole eligibility. He alleged appropriate officials at the Arkansas Department of Correction, when classifying him under Ark. Code Ann. § 16-93-603 (1987), improperly considered two prior Oklahoma incarcerations. Following an evidentiary hearing on the matter, the court denied appellant’s requested relief. Appellant brings this pro se appeal from that ruling.

Appellant’s abstract consists only of a “Statement” he submitted as an exhibit at the evidentiary hearing; it is flagrantly deficient. Pro se litigants are held to the abstracting requirement of Rule 9(e) of the Rules of the Supreme Court. Pennington v. Lockhart, 297 Ark. 475, 763 S.W.2d 78 (1989). When an abstract is flagrantly deficient the judgment must be affirmed for failure to comply with Rule 9(e). Harrison v. State, 300 Ark. 439, 779 S.W.2d 536 (1989); Grisso v. State, 297 Ark. 546, 763 S.W.2d 661 (1989).

Affirmed.

Brown, J., dissents.

Robert L. Brown, Justice,

dissenting. Appellant is an inmate in the Arkansas Department of Correction. He originally filed a declaratory judgment action in circuit court to invalidate two prior Oklahoma convictions which are detrimentally affecting his parole eligibility status in Arkansas. Currently, appellant is deemed to be a fourth offender under Arkansas, law which requires him to serve his entire sentence. See Ark. Code Ann. §§ 16-93-603(4) (1987) and 16-93-604(5) (1987). The two Oklahoma convictions resulted from prosecuting appellant as an adult at age 16 (burglary in the second degree, 1966) and age 17 (firearm possession, 1967) under a certification statute that has since been ruled unconstitutional in that state. See Lamb v. Brown, 456 F.2d 18 (10th Cir. 1972). The Tenth Circuit then applied the invalidity of the statute retroactively, which, arguably, would have the effect of voiding the two prior convictions. See Radcliff v. Anderson, 509 F.2d 1093 (10th Cir. 1974), cert. denied Anderson v. Radcliff, 421 U.S. 939 (1975).

Appellant now appeals the dismissal, but in doing so he has failed to abstract the record or file an appendix with his brief. The majority opinion treats this as an automatic ground for affirming the trial court’s decision. That is not my reading of our rules. Rather, the apposite rule states in part:

If the Court finds the abstract to be flagrantly deficient, or to involve an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the Court considers that action to be unduly harsh, the appellant’s attorney may be allowed time to reprint his brief, at his own expense, to conform to Rule 9(d).

Ark. Sup. Ct. R. 9(e)(2). (Emphasis ours.)

Rule 9(e)(2) is discretionary with this court. Moreover, it contemplates by its terms that if affirmance due to flagrant deficiency is “unduly harsh,” the appellant’s attorney may be allowed time to correct that deficiency.

The majority’s decision is unduly harsh. Additional time to prepare an abstract or file an appendix should be afforded the appellant, especially when he is appearing without the benefit of an attorney.

It appears from reading the record that a federal district court in Oklahoma denied appellant relief in 1988 on the basis that the court lacked jurisdiction over appellant because he was an inmate in the Arkansas Department of Correction. Now an Arkansas trial court has denied appellant relief on the theory that an Arkansas court has no authority to invalidate Oklahoma convictions. That conclusion at least appears open to debate. See Craig v. Beto, 458 F.2d 1131 (5th Cir. 1972) (jurisdiction lies in the custodial state when the inmate attacks another state’s conviction); Noll v. Nebraska, 537 F.2d 967 (8th Cir. 1976) (jurisdiction does not lie in the state of a prior conviction when the inmate is now incarcerated in another state).

Appellant also argues that under Oklahoma’s present certification statute a juvenile could not be tried as an adult for second degree burglary and possession of a firearm. See 10 Okla. St. Ann. § 1112 (Supp. 1991). The net result of all this is that both a federal court in Oklahoma and a circuit court in Arkansas are denying jurisdiction, and the merits of appellant’s claim have yet to be heard.

By the majority’s action today, the appellant, appearing pro se, is denied the right to be heard in state court. Not only is this a harsh result for appellant, but it prolongs resolution of a matter which has been pending in various court systems for too long. Appellant will now undoubtedly seek habeas corpus relief in the federal district court in Arkansas. We should give appellant an opportunity to refile his brief, and we should reach a decision on whether a new hearing is appropriate.

Accordingly, I dissent.


author: Donald L. Corbin, Justice.

text:
    IN THE MATTER OF THE ESTATE OF Harold B. O’DONNELL, Deceased
    90-257
    803 S.W.2d 530
    Supreme Court of Arkansas
    Opinion delivered February 4, 1991
    [Rehearing denied March 4, 1991.]

      Donald A. Forrest, for appellant William O’Donnell, Executor.

      Marc I. Baretz, for appellants Lillian and Victor O’Donnell.

      Rieves & Mayton, by: Elton A. Rieves III, for appellee Patricia A. O’Donnell.
   Donald L. Corbin, Justice.

This appeal comes from an order of the Probate Court of Crittenden County, denying probate of two documents, granting dower, and distributing the estate. Appellant, William L. O’Donnell, brother of decedent Harold O’Donnell and executor of the estate, filed a petition for probate of two documents, the first document being a holographic instrument dated May 23,1988, and the second document being a typewritten instrument dated October 9, 1979. Appellee, Patricia O’Donnell, widow of the decedent, contested the admission of both documents to probate.

Appellants, William O’Donnell, Victor O’Donnell, decedent’s brothers, and Lillian O’Donnell, decedent’s mother, assert four arguments for reversal of the probate court’s order. We find no merit in the first two arguments; however, the third argument has merit and we reverse the order as it relates to that point. Our reversal of the order on the third point necessarily requires reversal of the order on the fourth point.

I.

TESTIMONY OF SETTLEMENT NEGOTIATIONS

As their first argument, appellants contend that all of the testimony involving references to a “shopping list” or “family settlement” should have been excluded under Ark. R. Evid. 408 as evidence of an attempt to negotiate a family settlement agreement.

Tom Montgomery, attorney for decedent, testified on behalf of appellants. His testimony was the primary evidence'offered in support of the holographic instrument. On cross-examination he denied referring to this instrument as the decedent’s “list” or “shopping list” from which he was to prepare the decedent’s will. David Shelton, appellee’s former attorney, testified on her behalf that Montgomery did in fact refer to the holographic instrument as a “list” or “shopping list.” Shelton further testified that because he “didn’t have a vague idea” as to the value of the estate at the time the references to a “shopping list” were made, he was in no position to make any settlement offer on behalf of appellee.

The probate court allowed Shelton’s testimony, as well as that of appellee and one other witness, to be admitted for the purpose of impeaching Montgomery’s testimony. Rule 408 of the Arkansas Rules of Evidence clearly permits appellee to directly attack the credibility of Tom Montgomery. The last sentence of Rule 408 provides: .

This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, ....

See Missouri Pac. R.R. Co. v. Arkansas Sheriff's Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983).

We note further Shelton’s testimony that he was ignorant of the estate’s value and therefore in no position to make any settlement offer. The probate judge could have properly considered this testimony as credible evidence that no settlement negotiations were in fact conducted. Under these circumstances, Ark. R. Evid. 408 would not prevent admission of the challenged testimony.

The trial judge has discretion in deciding evidentiary issues and his decision will not be reversed on appeal unless he has abused his discretion. Northwestern Nat'l Life Ins. Co. v. Heslip, 302 Ark. 310, 790 S.W.2d 152 (1990). We find no abuse of discretion and affirm the trial court’s admission of this evidence.

II.

HOLOGRAPHIC INSTRUMENT

Appellants allege the court erred in denying the holographic instrument of May 23, 1988, to probate. For the benefit of the reader, a copy of the holographic instrument is reprinted and attached as an appendix to this opinion. The probate court denied its admission to probate for failure to prove testamentary intent. The court arrived at this decision after carefully comparing factors indicating the holographic instrument was a will with factors indicating it was not a will. The probate court’s memorandum opinion listed the factors as follows:

Factors Favoring Holographic Instrument as Will
1) Montgomery told decedent what to do, and he hands it to Montgomery saying, “Here it is.”
2) Decedent’s habit as acting in cursory and abbreviated way.
3) Instrument dated and signed.
4) Instrument has “Last Will and Testament”.
5) Decedent never told wife he had a 1979 will.
6) Decedent never told wife he revoked 1979 will.
7) Decedent never told wife home just in his name. Factors Indicating Holographic Instrument Not a Will
1) So brief, perfunctory, truncated and cursory as to be meaningless.
2) Written part in pen, part in pencil — seems to be on scratch paper.
3) Strikeovers.
4) No real urgency or hurry in-getting a will — not sick.
5) All property not disposed, of.
6) Shelton said Montgomery called it a list, until some 10 days later.
7) Decedent knew Montgomery going to make a written will.
8) Decedent showed typewritten will to his ;wife, but did. not tell her he had a handwritten will.
9) Discussed with wife in detail the provisions of typewritten will.
10) Has no words of a dispositive nature.
11) Wife’s name not mentioned.

The probate court’s memorandum opinion went on to say:

As the Court appreciates the law in this area, the Court must be satisfied that the writer clearly expressed an intent to make the proffered document his will, and no inference is permitted, and the Court’s mind must be settled as to the writer’s testamentary intent. McDonald v. Petty, 254 Ark. 705, 496 S.W.2d 365 (1973). The document itself, along with all the attending circumstances, must overcome all doubt about testamentary intent. David Terrell Faith Prophet Ministries v. Estate of Varnum, 284 Ark. 108, 681 S.W.2d 310 (1984).
The proof shows that decedent called Montgomery to prepare a will, and Montgomery instructed decedent how to prepare a holographic will, “to tide him over.” When decedent comes to Montgomery’s office later, he handed Montgomery the holographic instrument, and said, “Here it is.” Montgomery talked with decedent about the contents to be in his will, and then prepared a typewritten will, which was never properly executed. The decedent died unexpectedly a few days later.
It is clear Montgomery was in the process of preparing an attested typewritten will, and although Montgomery instructed him how to make a holographic will, the words, “Here it is,” might have meant here is the way I want my will drawn up. He might have decided to simply let Montgomery go on with the typewritten will, since there was no apparent urgency.
It is certain that Montgomery thought that decedent intended the document to be his will; but it is the decedent’s intent that is the subject of the inquiry, not his lawyer’s, and from all the surrounding circumstances, together with the reading of the four corners of the instrument, the Court cannot, with confidence, say the decedent intended this document as a will.
The court feels this case is somewhat similar to Pullen v. Estate of Pullen, 249 Ark. 489, 460 S.W.2d 753 (1970). There, as here, the proof indicated that the holographic document might as well been a memorandum to the lawyer, as an intended will.

We review probate matters de novo on appeal but will not reverse the findings of the probate judge unless clearly erroneous. Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990). We agree with the reasoning of the probate judge who had the facts before him. His reasoning is within the framework of the applicable law which is cited in the memorandum opinion. We cannot say the probate judge was clearly erroneous in denying the holographic instrument’s admission to probate for lack of testamentary intent.

III.

REVOCATION OF 1979 WILL

Appellants allege the probate court erred in holding the typewritten will dated October 9,1979, to be revoked. They argue that the revocation statute was not strictly complied with as the will was not destroyed in the testator’s presence. The evidence at trial revealed that Montgomery tore the 1979 will into two pieces pursuant to the decedent’s directions which came over the telephone. Montgomery testified that he could not say for certain that the decedent was or was not present when he destroyed the will. However, Montgomery stated that, according to the notes he made to himself, the will was most likely destroyed outside the testator’s presence.

Ark. Code Ann. § 28-25-109 (1987) provides in part that:

(a) A will or any part thereof is revoked:
(2) By being burned, torn, cancelled, obliterated, or destroyed, with the intent and for the purpose of revoking it by the testator or by another person in his presence and by his direction.

A decision under a prior statute which is substantially similar to the current statute, Reiter v. Carroll, 210 Ark. 841, 198 S.W.2d 163 (1946), held that oral instructions of the testator that his will be destroyed were insufficient, even though the testator believed his instructions had been carried out. The decision required strict compliance by stating “the testator did not personally destroy the will, and never caused the will to be brought into his presence for destruction. So, the will was not revoked in the form and manner required by law.” Reiter, 210 Ark. at 844, 198 S.W.2d at 165.

We followed the strict compliance standard of the Reiter opinion in Mosely v. Mosely, 217 Ark. 536, 231 S.W.2d 99 (1950), a case decided under yet another version of the same statute although, substantially similar to the current statute in all respects relevant to this case. The Mosely court stated:

In construing this statute we have uniformly held that the only methods of revoking a will are those enumerated in the statute. For instance, a testator’s direction that his son destroy a will was held ineffective where the testator did not specify, as the statute requires, that the destruction be in his presence. Reiter v. Carroll, 210 Ark. 841, 198 S.W.2d 163.

Mosely, 217 Ark. at 537, 231 S.W.2d at 100. Mosely relied on Reiter and refused to recognize the doctrine of implied revocation as it relates to the particular facts of the Mosely case.

Appellee urges us to adopt a theory of substantial compliance with respect to the revocation statute. In support of this argument appellee cites us to cases in which we have allowed substantial compliance with other probate statutes. See, e.g., Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985); Hanel v. Springle, 237 Ark. 356, 372 S.W.2d 822 (1963). The probate judge applied a theory of “ratification” to this case by stating that the testator “ratified” the revocation of the 1979 will when he observed that the will had indeed been destroyed. Although he wrote a well-reasoned memorandum opinion on this issue, the probate judge, like appellee, did not cite any binding authority in support of either ratification or substantial compliance with respect to the revocation statute.

The strict compliance standard was enunciated in Reiter, supra, and followed in Mosely, supra. We are bound by those decisions. Accordingly, we hold that the testator’s 1979 will was not revoked pursuant to the terms of the revocation statute, section 28-25-109, as the will was not destroyed in the testator’s presence. We reverse and remand the case to the probate court with instructions that the October 9, 1979 will be admitted to probate.

IV.

DISTRIBUTION OF THE ESTATE

Appellants contend the probate court erred in its order of distribution. Appellants specifically challenge the award of debt-free dower. Because we reverse this case for admission of the 1979 will to probate, we must necessarily reverse the court’s order of distribution as well.

Affirmed in part; reversed and remanded in part.


author: Jack Holt, Jr., Chief Justice. Tom Glaze, Justice,

text:
    Mike BLANKENSHIP and Tina Blankenship v. Hugh BURNETT
    90-240
    803 S.W.2d 539
    Supreme Court of Arkansas
    Opinion delivered February 11, 1991

      Robert S. Blatt and Morgan & Eisenbraun, for appellant.

      Friday, Eldredge & Clark, by: Laura Hensley Smith, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a medical malpractice case in which the appellants, Mike and Tina Blankenship, contend that the trial court erred in refusing to give either of their tendered jury instructions on the theory of “lost chance.” We disagree and affirm.

On March 23, 1985, Mike Blankenship was involved in a motorcycle accident in which he sustained severe injuries to his left leg and foot.

Mr. Blankenship was initially taken to St. Mary’s Hospital in Russellville, but was subsequently transferred to Baptist Medical Center in Little Rock, where, in the course of his stay, he was treated by the appellee, Dr. Hugh Burnett, a vascular surgeon. The leg was later amputated below the knee.

The Blankenships filed suit against Dr. Burnett alleging that he was negligent in failing to properly diagnose and treat arterial insufficiency (insufficient blood flow) in the area of Mr. Blankenship’s injury and that such failure led to progressive gangrene and the eventual amputation of Mr. Blankenship’s left leg. Alternatively, the Blankenships alleged, under the theory of “lost chance,” that Dr. Burnett’s negligence deprived Mr. Blankenship, within “reasonable medical probability,” of a substantial chance to save the leg.

The jury returned a verdict in favor of Dr. Burnett and from its decision, comes this appeal.

The theory of “lost chance,” as espoused by the Blankenships, proposes that because Dr. Burnett was negligent in failing to properly diagnose and treat Mike Blankenship for arterial insufficiency, he substantially reduced the chance of saving Mr. Blankenship’s leg. The Blankenships presented testimony with regard to this theory of recovery through their expert witness, Dr. Robert Atnip. They contend the trial court’s refusal to submit at least one of their proposed instructions on “lost chance” was reversible error.

The proffered instructions comprised two variations of AMI 203. AMI 203, which was submitted to the jury in its original form, read:

[Mike and Tina Blankenship] claim damages from [Dr. Hugh Burnett] and have the burden of proving each of three essential propositions:
First, that they have sustained damages;
Second, that [Dr. Burnett] was negligent; and
Third, that such negligence was a proximate cause of [the plaintiffs’] damages.
If you find from the evidence in this case that each of these propositions has been proved, then your verdict should be for [the plaintiffs], but if, on the other hand, you find from the evidence that any of these propositions has not been proved, then your verdict should be for [Dr. Hugh Burnett].

The Blankenships’ proffered instructions changed the third proposition of AMI 203, the first of which stated:

Third, that such negligence was a proximate cause of Mike Blankenship’s damages or the negligence of the defendant, Dr. Burnett, substantially reduced the chance of saving Mike Blankenship’s left leg.

The other instruction provided:

Third, that such negligence of the defendant, Dr. Burnett, substantially reduced the chance of saving the Plaintiff’s left leg.

In refusing the proffered instructions, the trial court stated: “The reason the court is rejecting Plaintiffs’ proposed 1 and 2 is that the briefs and the precedents cited by Plaintiff are cases that are prior to the Arkansas Medical Malpractice Act; and 1501,1 think is the only instruction that the court is allowed to give; and that’s what the court is giving in this case.”

Although the trial court mentioned AMI 1501 (which concerns the applicable standard of care) as “the only instruction that the court is allowed to give,” it is obvious that the court meant that only model jury instructions could be given. This was evident from the court’s statement to the Blankenships’ counsel that “. . . [the jury] may treat that as part of a standard of care, this lost chance, but I think your only instruction is what is provided by AMI,” and the fact that the court did give an array of AMI instructions.

The trial court expressed its concern that the jury be instructed as to the plaintiffs’ burden of proof, in accordance with the Arkansas Medical Malpractice Act of 1979, now codified at Ark. Code Ann. §§ 16-114-201 through 209 (1987 and Supp. 1989). Section 16-114-206(a) specifies that in any action for medical injury, the plaintiff must prove the applicable standard of care; that the medical provider failed to act in accordance with that standard; and that such failure was a proximate cause of the plaintiffs injuries. These requirements are reflected in the Arkansas Model Jury Instructions 203, 1501, and 501 which were given by the trial court.

The trial court’s remarks were overbroad in declaring that the Blankenships were confined to use of AMI instructions only, since modifications of the AMI or other instructions may be given under appropriate circumstances. The court was correct, however, in ruling that the instructions must accurately reflect the statutory burden of proof requirements. Here, the proposed modifications of AMI 203 did not accurately state the plaintiffs’ burden of proof as to proximate cause.

The use of the word “or” in the first instruction implies that a showing of proximate cause is necessary to prove negligence, but not to prove entitlement to damages under the “lost chance” theory. The second proposed instruction makes no mention of proximate cause at all.

A trial court need not give an instruction that needs explanation, modification, or qualification. Newman v. Crawford Const. Co., 303 Ark. 641, 799 S.W.2d 531 (1990). Also, when instructions are requested that do not conform to the Arkansas Model Jury Instructions, they should be given only when the trial judge finds the AMI instructions do not contain an essential instruction or do not accurately state the law applicable to the case. Id; see also our Per Curiam Order dated April 19,1965. It is clear to us that the submission of AMI 203, in its standard form, correctly instructed the jury as to the burden of proof to be met under any theory of recovery in a medical malpractice action, including the Blankenships’ theory of “lost chance.”

Each party has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake. W.M. Bashlin Co. v. Smith, 277 Ark. 406, 642 S.W.2d 525 (1982). It was not error for the trial court to have refused proffered instructions where the model instructions accurately stated the law and where the proposed instructions were potentially misleading.

Affirmed.

Glaze, J., concurs.

Tom Glaze, Justice,

concurring. I concur. In my view, Dr. Atnip’s testimony did not support a “loss of chance” instruction. As appellant points out, Dr. Atnip’s opinion reflects that, without the arteriogram and an attempt to repair the circulatory insufficiency, the chance of saving Mr. Blankenship’s leg was “extremely small.” On the other hand, he said if Dr. Burnett had performed the arteriogram in accordance with the established standard of care, the amputation of Mr. Blankenship’s leg could have been avoided to “a reasonable medical probability.” Dr. Atnip offered no percentage of chance of loss due to Dr. Barnett’s failure to perform the arteriogram. In light of Dr. Atnip’s testimony, I believe the trial court’s decision to give AMI 203 was a correct one.


author: Jack Holt, Jr., Chief Justice.

text:
    Judee DUNN v. Henry MEANS III, Administrator of the Estate of Claude Rogers, et al.
    90-358
    803 S.W.2d 542
    Supreme Court of Arkansas
    Opinion delivered February 11, 1991

      Steve Westerfield and Jerry Rephan, for appellant.

      Kay L. Matthews, for appellee.
   Jack Holt, Jr., Chief Justice.

This case involves the denial of the Probate Court of Garland County to probate an instrument as the will of Claude Rogers.

On August 2, 1989, Mr. Rogers, who was 78-years-old and unmarried, had been living with Ms. Maxine Robertson in a home that they had purchased jointly in October of the preceding year. In anticipation of extended travels, Mr. Rogers and Ms. Robertson invited Judee and Bill Dunn, Ms. Robertson’s daughter and son-in-law, and Ina Witherspoon, a friend, to dinner that night. During the course of the evening, Ms. Robertson drafted a two-and-a-half page will in her own handwriting, at the end of which she signed her name,

Beneath her signature on the third page of her holographic will, Ms. Robertson also wrote the following:

Judee Dunn Claude & I give you full power to do & take care of all our Business & do as you wish with, with it, with no problems from anyone.
You can sell or dispose of all property & monies.
[Signed]
[Signed]
Roxie Maxine Robertson & Claude Rogers
Sign [Signed] Ina Witherspoon
[Signed] Bill Dunn

She again signed beneath this passage, and Mr. Rogers also signed below Ms. Robertson’s signature. Ina Witherspoon and Bill Dunn signed the document as witnesses.

Mr. Rogers died on October 16, 1989, and Henry Means, III, appellee, filed a petition for appointment of administrator at the request of Virgil Rogers, Mr. Rogers’ brother, on the basis that Mr. Rogers had died intestate. Letters of administration were issued to Mr. Means on October 23, 1989; however, on January 31, 1990, Judee Dunn, appellant, petitioned for the probate of a will and appointment of herself as personal representative of Mr. Rogers’ estate. A hearing on this petition was held on April 20, 1990, and the probate court denied the admission to probate of the instrument proffered by Ms. Dunn and granted the motion of the estate to dismiss the petition.

Ms. Dunn appeals and argues that the probate court erred as a matter of law by refusing to consider her extrinsic evidence of testamentary intent. We find no merit in this argument and affirm.

In Mangum v. Estate of Fuller, 303 Ark. 411, 797 S.W.2d 452 (1990) (citing Rose v. Dunn, 284 Ark. 42, 679 S.W.2d 180 (1984) ), we noted that we review probate matters de novo on appeal and will not reverse the findings of the probate judge unless clearly erroneous.

In determining whether an instrument is in fact a will, we stated in Faith v. Singleton, 286 Ark. 403, 692 S.W.2d 239 (1985) , as follows:

A will is a disposition of property to take effect upon the death of the maker of the instrument. To be valid as a will an instrument must be executed with testamentary intent, or animus testandi. That merely means the intention to dispose of one’s property upon one’s death. By looking to the four corners of the instrument, we determine that intent. It is a question of law for the court to determine from the face of the instrument whether the writer intends to make a testamentary disposition.
(Citations omitted.)

Further, where a document sets forth no words of a dispositive nature, it is defective on its face because it lacks the required intent to make a will, and extrinsic evidence is not admissible to prove the necessary intent. McDonald, Ex’x v. Petty, et al., 262 Ark. 517, 559 S.W.2d 1 (1977).

In this case, we find no testamentary intent whatsoever within the passage that Ms. Dunn claims to be the will of Mr. Rogers. Certainly, it cannot be said that this instrument’s expressions are so clearly stated that, without inference, no mistake can be made as to the existence of testamentary intention. See generally, McDonald Ex’x v. Petty, et al., supra.

Accordingly, the probate judge’s denial of admission of Ms. Dunn’s extrinsic evidence in this matter is not clearly erroneous.

Affirmed.