author: Ted H. Sanders, Special Chief Justice.

text:
    JOHN CHEESEMAN TRUCKING, INC. and John Hofstetter v. Johnny “Bo” DOUGAN, et al.
    92-543
    853 S.W.2d 278
    Supreme Court of Arkansas
    Opinion delivered May 17, 1993.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Bruce Munson, for appellants.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Jacob Sharp, Jr. and Brian Allen Brown; and P. H. Hardin, for appellee Johnny “Bo” Duncan.

      Gammill Law Offices, by: Randall L. Gammill, for appellee Nancy Katherine Pinson.

      Jerry Kelly, for appellee Elizabeth Kittler.

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

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

      Anderson & Kilpatrick, for appellees Glen McClendon Trucking, Inc., and James Guy Smith.
   Ted H. Sanders, Special Chief Justice.

On June 8,1988, at approximately 11:45 p.m., an accident occurred among eleven (11) vehicles eastbound on Interstate 40 near the 162 mile marker east of North Little Rock in Pulaski County, Arkansas. The accident occurred when the vehicles involved encountered an area of heavy smoke which covered the highway and completely obstructed vision. The two (2) lead vehicles, the first one being owned by John Cheeseman Trucking, Inc. and driven by John Hofstetter, and the second vehicle being owned by Mallinckrodt, Inc. and driven by Morgan Clay, a leased employee from Sunbelt Transportation, Inc., stopped on Interstate 40 because they were blinded by the smoke being blown across Interstate 40 from a burning field. As a result of the two vehicles blocking the Interstate, subsequent vehicles, which entered into the smoke, collided with the two stopped vehicles or other vehicles which stopped after colliding with them. Four deaths occurred in the accident.

This action was originally filed in the Pulaski County Circuit Court by Ryder Truck Rentals, Inc. and its two drivers, David Newman and Richard Pitrolo, against the Kroger Company and two farmers who had been burning wheat stubble from their fields adjacent to Interstate 40 on the afternoon preceding the accident. The Kroger Company impleaded all other persons and entities involved in the accident. In response, most parties cross-claimed against all other parties so that all claims arising out of the accident, with the exception of the Pinson claim which was pending in Lonoke County Circuit Court, were pending in this action.

The trial court bifurcated the trial of liability and damages. At the conclusion of the trial of liability, the jury answered interrogatories, finding John Hofstetter and his employer, John Cheeseman Trucking, Inc. and Morgan Clay and his principals, Sunbelt Transportation, Inc. and Mallinckrodt, Inc., guilty of negligence, which was the proximate cause of damage to all other parties. The jury also apportioned 50% of the responsibility to John Hofstetter and his employer John Cheeseman Trucking, Inc., and 50% of the responsibility to Morgan Clay and his principals, Sunbelt Transportation, Inc. and Mallinckrodt, Inc. The judgment entered on the jury’s verdict dismissed all claims against all parties except the appellants and dismissed from the action the prevailing defendants who had not asserted cross-claims for damages. An appeal was taken from the jury’s determination of liability. John Cheeseman Trucking, Inc. v. Dougan, 305 Ark. 49, 805 S.W.2d 69 (1991). Thereafter, the separate defendants, Morgan Clay and his principals, Sunbelt Transportation, Inc. and Mallinckrodt, Inc., settled with the prevailing parties prior to the trial. John Hofstetter and his employer, John Cheeseman Trucking, Inc., stipulated to the amounts of money damages of each party, and consent judgments by each party were entered against them.

John Hofstetter and his employer, John Cheeseman Trucking, Inc., bring this appeal from the original jury verdict finding them liable for the multi-vehicle accident and apportioning 50 % of the fault to them. The appellees/cross-appellants, The Kroger Company; Nancy Katherine Pinson, Administratrix of the Estate of Kenneth Ray Pinson, deceased; Glen McClendon Trucking, Inc.; James Guy Smith, Jr.; Jeanette Stocks, Administratrix of the Estate of J.W. Stocks, deceased; Inez Woodruff, Administratrix of the Estate of Bobby Woodruff, deceased; Jerry Odom; Brenda Brown, Administratrix of the Estate of Hollis Brown, deceased; Elizabeth Kittler; Tammy Bullock; David Newman; Richard Pitrolo; and Ryder Truck Rental, Inc. brought a cross-appeal against the defendant, Johnny “Bo” Dougan, should the judgment against them be reversed. The decision is affirmed.

The appellants rely on four (4) points for reversal. They contend: (1) The evidence is insufficient to support the judgment against these defendants, and the judgment is clearly contrary to the preponderance of the evidence. (2) The court erred in failing to give AMI 902 as proffered in three separate versions. (3) The trial court erred in failing to grant a motion for mistrial based upon improper closing argument. (4) The judgment should be amended to delete the portion in which Tammy Bullock is granted judgment.

The appellees/cross-appellants rely on one (1) point for reversal. That point is: The jury’s finding of no liability on the part of Johnny “Bo” Dougan was not supported by substantial evidence.

Appellants’ contention that the evidence is insufficient to support the judgment against them and that the judgment is clearly contrary to the preponderance of the evidence is without merit. Appellants argue that John Hofstetter was not negligent because the Cheeseman tractor-trailer was entirely off the travelled portion of the Interstate and onto the shoulder and grassy median. At the instruction of the fire chief, the Cheeseman tractor-trailer was moved by Mr. Hofstetter further east and further into the median before any photographs were taken. The location of the Cheeseman truck was disputed at trial. Appellants cite John Hofstetter’s testimony as to his truck’s location and the photographs of the physical evidence at the scene in evidence that its vehicle was completely off the travelled portion of the Interstate. However, the Mallinckrodt truck entered the smoke in the right lane, and the Cheeseman truck was in the left lane. Morgan Clay, the driver of the Mallinckrodt truck, testified that when he first came to a stop, his front bumper was even with the rear of the Cheeseman truck and approximately one foot to its right. Since the Cheeseman truck had been moved, the jury was entitled to interpret the photographs in light of the testimony and totality of the circumstances presented during the trial. Evidence presented at the trial revealed that prior to entering the smoke, Mr. Hofstetter saw the fire north of the Interstate, alerting him to the possibility of smoke on the highway. Also, he heard a call over the citizen’s band radio to stop because smoke was across the Interstate. Instead of stopping, he slowed to approximately twenty (20) miles per hour and continued. After some distance into the smoke, Mr. Hofstetter testified that he felt the left side of his tractor leave the highway. He stopped his vehicle and radioed for Morgan Clay, driver of the Mallinckrodt truck, to stop his vehicle. He also testified that he abandoned his truck and ran east to another truck which was in the westbound land of the Interstate.

When a jury verdict is challenged, the court will affirm the verdict and judgment of the trial court if the verdict is supported by any substantial evidence, with the evidence and all reasonable inferences therefrom examined in the light most favorable to the appellee. Schuster’s Inc. v. Whitehead, 291 Ark. 180, 181, 722 S.W.2d 863 (1987). A jury verdict will be disturbed only when fair-minded persons could not draw the conclusion reached by the jury. Pine View Farms, Inc. v. A.O. Smith Harvestore, Inc., 298 Ark. 78, 89, 765 S.W.2d 924, 930 (1989). It would not have been unreasonable for the jury to conclude from the evidence that Mr. Hofstetter was negligent in the following ways: (1) Proceeding into the smoke despite a warning to stop. (2) Stopping without knowing for sure if his truck was completely off the travelled portion of the Interstate. (3) Informing Morgan Clay, the driver of the Mallinckrodt truck to stop. (4) Abandoning his truck and making no effort to halt or warn rearward traffic.

Substantial evidence is defined as “that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond suspicion or conjecture.” Wal-Mart Stores, Inc. v. Kelton, 305 Ark. 173, 806 S.W.2d 373 (1991).

It is not the court’s province to try (or retry) issues of fact. Instead this court examines the record to determine if there is substantial evidence to support the jury verdict. We have examined the record to determine if there is substantial evidence to support the jury verdict as we are required to do. B-W Acceptance Corp. v. Polk, 242 Ark. 422, 414 S.W.2d 849 (1967). Based on the evidence presented to the jury, we cannot say as a matter of law that the jury erred.

We conclude the foregoing evidence is substantial and, therefore, sufficient to support the conclusion and judgment of the jury. For as we have stated many times before, the question is not whether the evidence would have supported some other conclusion, but whether it supports the conclusion reached by the trier of fact. Minerva Enterprises, Inc. v. Howlett, 308 Ark. 291, 824 S.W.2d 377 (1992).

Appellants, John Hofstetter and John Cheeseman Trucking, Inc., assert that the trial court erred in failing to instruct the jury on AMI 902 regarding the superior right of the forward vehicle.

AMI 902 is as follows:

When two vehicles are traveling in the same direction, the vehicle in front has the superior right to the use of the highway [for the purpose of “leaving it to enter an intersection road” (or the other appropriate language)], and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. This does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road.

This instruction was offered in three forms. In the first form, there was inserted in the brackets the words “for the purpose of stopping to avoid vehicles ahead.” In the second form, the words “for the purpose of avoiding danger ahead” were inserted in the brackets. In the third form, the words “for the purpose of stopping in an emergency situation” were inserted.

The trial court declined to give AMI 902 and instructed the jury pursuant to AMI 301, AMI 303, AMI 305 and AMI 614. Additionally, the court instructed the jury on the rules of the road as set forth in AMI 901:

When a driver sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout, then he is required to use ordinary care to have his vehicle under such control as to be able to check its speed or stop it, if necessary, to avoid damage to himself or others.

We believe that the combination of instructions given by the trial court fully covered the situation present in this case.

The two lead vehicles, Cheeseman and Mallinckrodt, after having reduced the speed of their vehicles due to the warning they received, entered the smoke on the Interstate. Both vehicles stopped without actually seeing a forward vehicle ahead blocking the road. This case can be distinguished from East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 546-48, 713 S.W.2d 456 (1986). In East Texas Motor Freight, the forward vehicle stopped in the highway because the driver actually saw two vehicles stopped in the roadway in front of her, which blocked her path. The East Texas Motor Freight truck then struck the Freeman vehicle from the rear. In that case, AMI 902 was properly given because Mrs. Freeman had stopped to avoid colliding with the two vehicles which were blocking the travelled portion of the highway. In this case, no testimony from appellant, John Hofstetter, was given that he stopped to avoid vehicles ahead, that he followed vehicles into the smoke (and then stopped to avoid hitting them) nor that one or more vehicles followed him into the smoke. Therefore, the factual basis upon which to instruct the jury under AMI 902 is lacking in his case.

The appellants argue that the trial court erred in failing to grant a motion for mistrial based upon an improper closing argument by the attorney for Nancy Katherine Pinson. The closing is as follows:

Of all the truckers that were out there on this evening, the two in front have the least amount of training, and I’m going to suggest that I don’t think it right for trucking corporations to put employees out on the highway without training them, without extensively training them, we are talking about multimillion, multibillion dollar businesses.
When I was in high school, the State of Arkansas sent a van around, some of y’all may have participated in it, it was part of the drivers’ education program, and they had simulated driving in there and you would sit behind a steering wheel and they’d give you all kinds of conditions and you learned to drive that way. That’s been 20 years. I don’t know what the state-of-the-art simulations would be now, but it couldn’t be that expensive to expose these professional drivers to snow, blinding snow, blinding dust-storms, blinding rain, yes, smoke on the road, it couldn’t be that expensive, it ought to be done and this is the place to get it done. Juries make a lot of changes in society. They make a lot of laws, you may not realize that. If I was to suggest to you that we needed to make a change here, what do you think we could do? Maybe when you went back in the jury room and elect a foreman and you could have the foreman call John Cheeseman Trucking or Glen McClendon Trucking, call the president of the corporation and say, “Hey, Mr. President, I think we need to have some training for these drivers.” You couldn’t even get him on the phone, you know that, you couldn’t even talk to him. What if you tried to attend a board of directors meeting, they wouldn’t let you people in the door. What if you sent them a letter, what if you got together back in the jury room and sent a letter to John Cheeseman Trucking, Inc. and to Mallinckrodt or Sunbelt or whoever it is out of the corporations that Morgan Clay works for, they wouldn’t read it, but there is something that you can do, you can take the jury forms that the judge is going to give you and you can take them back to the courtroom and you can fill them out appropriately so that you can send a message to those two front trucking companies, “don’t put your drivers out there risking lives of the public, without giving them some training,” and we can avoid accidents like this.

No objection was made to these remarks by counsel for Nancy Katherine Pinson. After closing arguments, in a proceeding out of the hearing of the jury, attorneys for the appellants moved for a mistrial. The trial judge denied the motion. It is settled law that for a trial court to have committed reversible error, timely and accurate objections must have been made, so that the trial court was given the opportunity to correct such error. Gustafson v. State, 267 Ark. 830, 593 S.W.2d 187 (1980). Hence, by waiting until after closing arguments when they were out of the presence of the jury to make a motion for mistrial, Cheeseman’s attorney did not give the trial court the opportunity to correct any error committed during the closing argument. By this action, Cheeseman waived the objection. Butler Mfg. Co. v. Hughes, 292 Ark. 198, 729 S.W.2d 142 (1987).

The final point of appeal for the appellants is that the judgment should be amended to delete the portion in which Tammy Bullock is granted judgment. Tammy Bullock, by her pleadings, asked for affirmative relief only against the Kroger Company, Jerry Odom, Johnny “Bo” Dougan and William J. Bevis, Jr. Arkansas Rules of Civil Procedure 15(6) permits the trial court to allow amendment of the pleading to conform to the proof. The trial court, in this case, permitted Tammy Bullock to amend her pleading to conform to the proof.

The trial court stated in the record:

. . you correct me if I am wrong, at one point, we said it will be considered in the record that everybody sued everybody else, is that what we said, so, for the record, we don’t want any deficiency to ever show up, on appeal, arising out of the lack of suing somebody.”

In order to secure a reversal of a trial judge’s ruling under Rule 15, the appellant must show that the trial court manifestly abused his discretion, Wingfield v. Pays, 278 Ark. 276, 644 S.W.2d 940 (1983). We find that the trial judge did not abuse his discretion in allowing Tammy Bullock to amend her pleading to conform to the proof.

Since the cross-appeal is conditional upon the reversal, we do not have to consider the cross-appeal because we have affirmed the judgment. The appellants raised in their reply brief a fifth point of appeal which will not be considered as it was not one of their original points of appeal.

Affirmed.

Holt, C.J., Glaze, and Newbern, JJ., not participating.

Special Justices Robert F. Thompson and Hoyt Thomas join.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Ernest Metcalf CAVIN v. STATE of Arkansas
    CR 92-978
    855 S.W.2d 285
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      Howell, Price, Trice, Basham & Hope, P.A., by: Dale Price and Robert J. Price, for appellant.

      Winston Bryant, Att’y Gen., by: Sandy Moll, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Ernest' Metcalf Cavin (Cavin), was convicted of the first degree murder of Taylor Timken Todd (Todd) and sentenced to life imprisonment in the Arkansas Department of Correction. As his arguments on appeal are without merit, we affirm.

On May 7, 1991, police were called to Todd’s home. Testimony at trial revealed that Pulaski County Sheriff Deputies Bragg and Scott arrived to find the front door open. They saw Cavin inside the living room going through drawers and also saw a figure lying on the bed in the corner bedroom.

Cavin, who met the two deputies on the porch, appeared to have blood on his face, hands, and clothing. He told Deputy Scott that “he’d had a bad night and thought he’d just killed this man.”

Police found Todd lying partially on the bed and bleeding profusely from the head. At that point, Cavin told the deputies, “Well, I gotta go now,” and started out the door, but the officers caught him and put him in handcuffs. Local emergency ambulance service staff arrived soon afterwards and began to administer first aid to Todd, but he died at the scene.

The police placed Cavin in their police car and read him his Miranda warnings. He told them that he had to kill Todd and he did not understand why they were arresting him. Cavin had on his person a roll of money surrounding the victim’s driver’s license.

At the trial, the State introduced the testimony of Deputy Scott as well as that of Ms. Claudette Lamar, a licensed psychiatric technician nurse with Central Arkansas Screening and Assessment Center (a division of Professional Counseling Associates), and Ms. Karen Carlton, a registered nurse with St. Vincent Infirmary Medical Center.

Ms. Lamar testified that she received a phone call from Cavin at about 1:30 to 2:00 a.m. during the course of her work as an emergency telephone operator. According to her testimony, Cavin identified himself and asked to speak to his doctor. When Ms. Lamar told him that his doctor was not available, Cavin told her that he had killed somebody; specifically, he said that he had stabbed a man ten times with an ice pick.

Ms. Carlton’s testimony was similar to Ms. Lamar’s. She was working in the Psychiatric Ward at St. Vincent Infirmary Medical Center on May 7,1991, when she received a call from Cavin. The hospital operator had transferred the call to her. During Cavin’s conversation with Ms. Carlton, he told her that he thought that he had killed someone and that there was blood all over. Although he refused to provide his victim’s name, he told her that he had “beat and beat” his victim over the head. When Ms. Carlton asked him why he had beaten the man, he said that the person would not shut up.

Ms. Carlton said that Cavin was hysterical and distraught through most of the conversation. When she asked him his name, he said that he was Ernest Cavin; he even spelled his last name.

The State also presented the testimony of Dr. Violette Hnilica, a forensic pathologist at the Arkansas State Crime Lab, who performed the autopsy on Todd the day after his death. According to her report, Todd was a seventy-five year old man suffering from both lung cancer and coronary disease. It was her determination that he suffered five to ten head injuries in the form of blunt trauma and that these injuries were serious enough to cause death. She also found at least five marks on the neck indicting strangulation. Her opinion was that Todd had died due to both the blunt trauma and the strangulation.

Detective Ron Tucker with the Pulaski County Sheriff’s office also testified. Tucker was aware that Cavin’s rights had been read to him previously and advised him of his rights again. He asked Cavin if he was sober, and he said yes. Tucker recorded Cavin’s statement but claimed that during the unrecorded part of the interview, Cavin had stated that Todd had injected him with some unknown drug, and Cavin had fallen asleep. He was awakened by Todd fondling his genitals, but Cavin claimed he merely told him to go away. Further, Cavin stated that he did not remember much of the night of the murder.

During the recorded portion of his statement, Cavin asked the police if they thought he needed a lawyer, but they never gave him a direct answer explaining that they could not make that decision for him.

After hearing all of the evidence, the jury returned a verdict of guilty to the charge of first degree murder and sentenced Cavin to life imprisonment in the Arkansas Department of Correction. It is from that sentence that he appeals.

PRIVILEGED COMMUNICATIONS

Cavin clams that the trial court erred in denying his motion to suppress the testimony of medical personnel, Claudette Lamar and Karen Carlton.

In reviewing a trial court’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances and reverse only if the trial court’s ruling was clearly against the preponderance of the evidence. Cook v. State, 293 Ark. 103, 732 S.W.2d 462 (1987).

Cavin complained to the trial court that the testimony of these two women should be suppressed because revealing his conversations to either of them violated A.R.E. Rule 503 in that the statements were made as part of a privileged psychotherapist/patient relationship. The trial judge disagreed, explaining that no privilege existed because the relationship required by Rule 503 had not been established at the time the statements were made.

A.R.E. Rule 503 provides in pertinent part:

(a) (1) A “patient” is a person who consults or is examined or interviewed by a physician or psychotherapist.
(2) A “physician’ is a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be.
(3) A “psychotherapist” is (i) a person authorized to practice medicine in any state or nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including alcohol or drug addiction, or, (ii) a person licensed or certified as a psychologist under the laws of any state or nation, while similarly engaged.
(4) A communication is “confidential” if not intended to be disclosed to third persons, except persons present to further the interest of the patient in the consultation, examination, or interview, persons reasonably necessary for the transmission of the communication, or persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
(b) General Rule of Privilege. A patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition, including alcohol or drug addiction, among himself, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient’s family.
(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of the deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.

A.R.E. 503 (d)(3) contains an exception to this privilege:

Condition as an element of claim or defense. There is no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental, or emotional condition as an element of his claim or defense, or after the patient’s death, in any proceeding in which any party relies upon the condition as an element of his claim or defense; provided, however, a patient shall not be required by order of court or otherwise, to authorize any communication with any physician or psychotherapist other than (A) the furnishing of medical records, and (B) communications in the context of formal discovery procedures.

In arguing that the trial court erred in admitting the statements made to nurses Lamar and Carlton, Cavin claims that because he was seeking professional help when making the calls, the calls should fall within the privilege of A.R.E. Rule 503.

It is true that a confidential communication with a nurse can fall within this privilege. Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982). However, Rule 503(b) does not grant a privilege to all information or communication between the patient and the health provider. Baker, supra. There is no privilege with regard to the fact that treatment was sought and received. State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990). In order to be privileged, the communication must be made for the purpose of diagnosis or treatment of a physical, mental or emotional condition. Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988).

Since there is no proof that these statements were made while Cavin was seeking treatment, they do not fall within the Rule 503 privilege. Admittedly, Cavin had previously been a psychiatric patient at both St. Vincent and Professional Counseling Associates Emergency Health Service. However, when he made these phone calls, no confidential relationship had been established. Although Cavin was ostensibly calling Professional Counseling Associates to find a doctor, he freely told Ms. Lamar that he had killed someone. He did not ask her for help. When Cavin called St. Vincent and talked to Ms. Carlton, he did not even ask for a doctor. Once the operator transferred the call from Cavin to her, Cavin immediately began telling her about his participation in a killing.

Cavin’s statements were not made to the nurses in their professional capacity; nor were the statements made for the purpose of treatment. See Bonds v. State, 310 Ark. 541, 837 S.W.2d 881 (1992); Magar v. State, 308 Ark. 380, 826 S.W.2d 221 (1992). As such, these were not confidential communications.

Even if the communications were privileged, which they are not, they would nevertheless be admissible under the A.R.E. Rule 503(d) exception because Cavin asserted the defense of involuntary intoxication. In doing so, he placed his mental condition in issue and thereby waived the privilege. See McVay v. State, 312 Ark. 73, 847 S.W.2d 28 (1993); Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992).

AUTHORITY TO ORDER AUTOPSY

Cavin contends that the trial court erred in denying his motion to suppress evidence of an autopsy performed by the State Medical Examiner’s Office because the coroner allegedly violated Ark. Code Ann. § 12-12-318 (1987) by delegating his duty to request an autopsy to his deputy, a person not authorized to do so.

At the omnibus hearing on the motion to suppress, the court heard the testimony of Gerald Curtis, deputy Pulaski County Coroner. Mr. Curtis testified that when he arrived at the residence, he found the deceased, Todd, and notified the State Crime Lab of the incident and took the body to the crime lab in a coroner’s van.

The statute in question, Ark. Code Ann. § 12-12-318 (1987), provides in pertinent part:

When death occurs in such a manner or under such circumstances as described in 12-12-315, the State Crime Laboratory shall have the power and authority to perform such functions and duties as may be provided by this subchapter. The State Crime Laboratory shall make such examinations or investigations or perform such autopsies to determine the cause of death as the Executive Director of the State Crime Laboratory or his staff deems necessary or as may be requested by the coroner of the county in which death occurs or is discovered, by the prosecuting attorney of the jurisdiction in which death occurs or is discovered, by the sheriff of the county in which death occurs or is discovered by the chief of police of the city in which death occurs or is discovered, by the Board of Correction or its designee, or the Director of the Department of Correction or . its designee, or the Director of the Department of Correction or his designee if the person was in the care, custody or control of the Department of Correction at the time of death. Deputies of elected officers enumerated above shall have no authority to request an autopsy by the State Crime Laboratory.
(c) Autopsies or investigations authorized in this section may be conducted without the consent of any person.
(d) The Executive Director of the State Crime Laboratory and his staff shall not, as part of their official duties, perform any autopsy at the request of any private citizen or any public official other than those enumerated in this section.

(Emphasis added.)

Cavin argues that this statute was violated because Gerald Curtis, a deputy coroner, requested the autopsy, and the statute states specifically that “deputies of elected officials enumerated above shall have no authority to request an autopsy by the State Crime Laboratory.” However, the Pulaski County Coroner, Steve Nawojczyk, testified that he went to the crime scene, observed the body, and ordered it photographed and sent to the crime lab. As he is the coroner of the county where the body was discovered, there was no violation of Ark. Code Ann. § 12-12-318 (1987), and the trial court did not err in admitting the results of the autopsy.

FOUNDATION FOR MEDICAL EXAMINER’S TESTIMONY

Cavin submits that the trial court erred in overruling his objection to the foundation for the Medical Examiner’s testimony concerning the number of blows to the decedent’s head. Although the murder weapon was never found, Dr. Violet Hnilica, a forensic pathologist with the Arkansas Medical Examiner, testified that she believed with a reasonable degree of medical certainty that Todd’s head received blunt trauma at least five or ten times. She formed her opinion based upon the appearance of the wounds. Cavin claims that he objected to this conclusion based upon insufficient foundation, contending that forming an opinion as to the cause of death without possessing the actual weapon used was mere speculation. Yet, the record reveals that Cavin’s actual objection was as follows:

Q. Do you have an opinion about how many times this body was hit?
MR. PRICE: Objection, Your Honor. Foundation.
THE COURT: All right, If it’s an expert opinion counsel, you must keep it within the framework.
BY MISS LODGE:
Q. Do you have an opinion within a. reasonable degree of medical certainty how many times this head area, just the head area that we’re speaking about, received blunt trauma?
A. Well, the back of the head I counted at least five, and the front of the head at least five, so I’d say at least 10.
MR. PRICE: May we approach the bench, Your Honor?
THE COURT; Yes. (THEREUPON, out of the hearing of the jury, the following conversation took place between counsel and the Court.)
MR. PRICE: My objection to foundation is that they have not laid any foundation as to what kind of weapon it was that caused this. In other words, if she has 10 lacerations, it could have been something with five prongs that hit him with two blows. It’s rank speculation without a foundation as to what type of weapon was used and whether she’s compared it.
THE COURT: All right. That’s going to be overruled.

At trial, Cavin’s objection to foundation was that the State had not laid any foundation as to what kind of weapon caused the wounds. The State contends that'Cavin failed to object on this point. Although we hold that Cavin’s objection was sufficient to preserve this issue for consideration on appeal, we disagree that the trial court erred in overruling the objection.

A proper foundation for Dr. Hnilica’s testimony as to the number of blows inflicted on the victim was established. She first described the victim’s head injuries in detail and then proceeded to explain how she could determine from these injuries the approximate amount of blunt trauma inflicted. Based on this testimony, we hold that a proper foundation was established.

OUT-OF-COURT STATEMENT

For his next argument, Cavin claims that the trial court erred in denying his motion to suppress his out-of-court statement to Detective Ron Tucker because he invoked his right to an attorney while being questioned.

While being interrogated and after he had signed a rights form, Cavin asked the officers if they thought that he should ask for an attorney. Detective Tucker testified at trial that Cavin did not appear intoxicated at the time. Tucker stated that he did not give Cavin a direct answer to his question because he felt he could not make that decision for him. Detective Tucker further inquired a to whether Cavin wished to continue and tell the truth, and the appellant answered affirmatively.

Cavin testified that his question about needing an attorney was never answered and that he was never given the opportunity to talk to a lawyer. He also contends that he asked them to do a blood test to determine whether drugs or alcohol were in his system, but he did not get one. He claims that his statement should be suppressed because he was denied his right to counsel.

The State notes that it did not introduce the contents of the statement in its case-in-chief. On direct examination by the State, Detective Tucker did make reference to having taken a statement. However, Cavin was the one who introduced large portions of the statement on his cross-examination of Detective Tucker. At that point, the State introduced the tape in its entirety. One who opens up a line of questioning or is responsible for error should not be heard to complain of that for which he is responsible. Berry v. State, 278 Ark. 578, 647 S.W.2d 453 (1983).

JURY INSTRUCTIONS

Cavin also claims that the trial court erred in refusing his requested jury instruction, a modified version of AMCI 106 dealing with circumstantial evidence. At trial, Cavin requested that a modified version of AMCI 106 should have been given to the jury. The last sentence of AMCI 106 states, “However, circumstantial evidence must be consistent with the guilt of the defendant and inconsistent with any other reasonable conclusion.” Cavin wanted the trial court to give a modified version of this, asking that the words “offered by the State” be inserted after the word “evidence.” He also wanted the following added to the end of the instruction: “If you view the evidence in this case as reasonably supporting either of two conclusions — one of innocence, the other of guilt — you must adopt the conclusion of innocence and find the defendant not guilty.”

The trial court refused Cavin’s requested instruction, finding that AMCI 106 as framed was sufficient and that the requested language told the jury it should ignore direct evidence of guilt if they could draw two conclusions from the circumstantial evidence.

It is not error for the trial court to refuse to give a nonAMCI jury instruction if the other instruction given covered the issue. See Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985). An instruction not included in AMCI should be given only when the trial judge finds that the AMCI instruction does not state the law of if AMCI does not contain a needed instruction on the subject. Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990).

Clearly, AMCI covered the issue of circumstantial evidence in this case. It is not necessary to create a distinction between circumstantial evidence offered by the State and that offered by Cavin. Also, the additional language offered by Cavin was properly not given to the jury because it was a comment on the direct evidence as well as the circumstantial evidence. In addition, as the State notes, this language overlaps the instruction on reasonable doubt, which along with AMCI 106, adequately states the law on this issue. See Morgan v. State, 273 Ark. 252, 618 S.W.2d 161 (1981). Accordingly, we hold that the trial court was correct in refusing Cavin’s requested modification of AMCI 106.

Cavin also contends that the trial court erred in refusing the following jury instruction regarding the character of the weapon used:

When considering whether or not the Defendant acted with purposeful criminal intent, you may consider all of the circumstances of the case, such as the character of the weapon used and the manner in which it was used, the nature of the wounds inflicted, the conduct of the accused and the like.

The trial court refused Cavin’s requested instruction finding that other instructions adequately covered the subject matter.

Cavin argues that such a ruling was erroneous because he wanted to emphasize to the jury, in support of his affirmative defense of justification, that none of the items suspected of having been used as a weapon could be considered a weapon of choice that someone would be expected to use against another person, unless they had to so hastily, such as when defending against a sudden attack.

However, AMCI 101 (c) and (d) were given, and they address these things:

It is your duty to determine the facts from the evidence produced in this trial. . .Render your verdict upon the evidence and the law. . .In deciding the issues, you should consider the testimony of the witnesses and exhibits received in evidence.

When the matters addressed in a proffered instruction have been adequately covered in other instructions, it is not error to refuse that instruction. Morgan v. State 273 Ark. 252, 618 S.W.2d 161 (1981).

Cavin’s final argument on appeal also involves a jury instruction, and this issue arises due to the Sheriff’s refusal to give him a blood test. Cavin claims that when he was first taken into custody by the Pulaski County Sheriff’s office, he told Deputy Ron Tucker that he was very intoxicated the previous evening and had been injected with unknown drugs. He asked Tucker to give him a blood test, but this request was refused.

Cavin now complains that the Sheriff’s failure to take a blood test before taking his statement amounted to withholding evidence from him. As a result, a presumption arises that the results of this blood test would be unfavorable to the State. Citing Watts v. State, 222 Ark. 427, 261 S.W.2d 402 (1953) and Bell v. State, 243 Ark. 839, 422 S.W.2d 668 (1968), Cavin requested that the jury be instructed about this presumption:

You are instructed that the unexplained failure of the State to produce evidence which is in the exclusive control of the State raises a presumption that the evidence would be unfavorable to the State.

However, the trial court refused this instruction, explaining that:

[T]o give the jury a presumption in the form of an instruction as you’ve offered, you’re instructed that the unexplained failure of a party, this also includes the Defendant, to produce evidence which is within the exclusive control of that party raises a presumption that evidence would be unfavorable to the party withholding it.
I’m not by any means telling you that you can’t argue that well, they had the blood test, and they should have produced it, and so forth. And you should say that goes against the State that’s unfavorable. They would have produced it. Most certainly you can argue that. . . .1 believe to go further with this matter would just be belaboring the issue. . . .

We hold that since Bell and Watts do not stand for the proposition which Cavin asserts in his proffered instruction, the trial court did not err in refusing the instruction. To have instructed the jury in such a way would have been to make an incorrect statement of the law.

Watts involves a case in which the State mentioned the existence of a hair comparison test done on the defendant and a strand of hair found at the crime scene. The State had not revealed the test results to the defense. In reversing the conviction, this court stated that although the trial court told the jury to disregard any testimony about the test results, the court should have permitted the defendant to argue to the jury that the failure to the State to introduce the available report created a presumption that if introduced, it would favor the defendant.

Similarly, in Bell, supra the defendant told the judge that he had unnamed witnesses who, if present, would have testified that the deceased had no money, therefore eliminating the motive for robbery. Bell claimed that during the trial, he asked the Sheriff and the court to find these witnesses for him. At a post-trial hearing on whether the trial court erred in not calling these witnesses, the defendant had the opportunity to call numerous individuals present at his trial who allegedly witnessed his requests of the court, but he failed to do so. This court held that the failure to produce an available witness who allegedly had knowledge of defendant’s request for certain witnesses to be brought into court to testify in defendant’s behalf and were not produced, creates a presumption that the testimony, if produced, would be unfavorable.

Unlike the comparative hair test results in Watts and the witnesses in Bell, Cavin’s blood tests were not available. After all, the test had never been taken. Accordingly, we hold that Watts and Bell are not applicable, and the trial court did not commit error in refusing the proffered instruction.

The record has been examined in accordance with Ark. Sup. Ct. R. 4-3 (h), and it has been determined that there were no rulings adverse to the appellant which constituted prejudicial error.

Affirmed.


text:
    Larry FRIAR v. STATE of Arkansas
    CR 92-1346
    854 S.W.2d 318
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      W. Scott Davidson, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Larry Friar (Friar), was convicted of delivery of a controlled substance, cocaine, after a bench trial in Craighead County Circuit Court and sentenced to forty-five years imprisonment. His sentenced was enhanced due to four previous convictions. We affirm.

Ruby “Touche” Gray (Gray) worked as a confidential informant in 1991 for the Arkansas State Police. On August 7, 1991 he had a meeting with law enforcement officers at Arkansas State Police Headquarters to arrange for a drug buy from Friar. Officer Danny Smith, Jr. testified that he searched Gray for drugs, money and weapons. Finding none, Smith wired Gray with a body mike so that the officers could overhear and record any conversations the information had with Friar.

Smith was to go with Gray on the drug buy. Officers Grigsby and Thomas did visual surveillance, and Officers Bogard and Blankenship were doing visual and audio surveillance.

Smith and Gray drove to a house in which Friar was believed to reside, and Gray went up to the door. According to the tape of the conversation and Gray’s testimony, Friar came to the door. Friar asked, “What you need?,” to which Gray responded, “I need an eight ball.” Friar stated that, “I ain’t got that much. I’m not that strong. I can probably give you six. . .1 will give you six for $100.” Gray and Friar then agreed to meet and make the drug transaction a block up the street.

Gray returned to Smith’s vehicle and told him what was about to occur. Smith then saw Gray walk about a block up the street. A red Ford Festiva pulled up beside Gray. Although Smith could not determine the identity of the car’s occupant, he could see that the driver was a light-skinned, black male. The car tags on the Festiva proved that the car was owned by Friar’s mother.

As Gray approached the car, the driver got out, went around to the trunk and gave Gray a brown paper bag containing six “rocks.” Gray gave him $100, and Friar got back in the car and drove away.

Kim Brown, a drug chemist with the Arkansas Crime Lab examined the six “rocks” and determined that they weighed .93 grams and contained cocaine base and a small amount of benzocaine.

Friar testified that he did not sell the six “rocks” to Gray. He explained that although he did tell Gray that he would sell him the drugs, he claims that he did so only to make Gray go away from his house. Everyone knew that Gray was working as an informant, claimed Friar. To support his innocence, Friar claimed that he would never sell six “rocks” for $100, since the going rate was four for one hundred.

After hearing all of the evidence, the trial judge found Friar guilty of delivery of a controlled substance, cocaine. Since the State presented evidence of Friar’s four previous convictions, the court found that Friar was an habitual criminal and sentenced him to forty-five years imprisonment. It is from that conviction that he appeals.

For his first argument on appeal, Friar claims that the trial court erred in denying his motion for directed verdict because the evidence was insufficient to support his conviction. We disagree.

A motion for a directed verdict is a challenge to the sufficiency of the evidence. Williams v. State, 298 Ark. 484, 768 S.W.2d 539 (1989). The test for determining the sufficiency of the evidence is whether there is substantial evidence to support the verdict. Ricketts v. State, 292 Ark. 256, 729 S.W.2d 400 (1987). On appeal, this court reviews the evidence in the light most favorable to the appellee and sustains the conviction if there is any substantial evidence to support it. Abdullah v. State, 301 Ark. 235, 783 S.W.2d 58 (1990). Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Hodge v. State, 303 Ark. 375, 797 S.W.2d 432 (1990); Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Friar claims that the evidence was insufficient, stressing that a convicted felon, Gray, is the only one who actually identified him as the person who sold drugs. Granted, none of the officers observing the drug transaction could actually see Friar in the car well enough to identify him, but the facts leading up to the drug buy are sufficiently incriminating.

First of all, four officers saw Gray go up to what they believed was Friar’s house, at which time, an audio tape was made of the two discussing the sale off premises of six “rocks” for one hundred dollars. Officer Doug Thomas testified that he had known Friar for four years and Gray since the third grade, and he could easily distinguish their voices on the tape. He indicated that he had no doubt in his mind that it was Friar’s voice on the tape.

After this recorded conversation transpired, a red Festiva, licensed to Friar’s mother, pulls up to the spot to which Friar had told Gray to meet. Gray claims that Friar was the driver, but none of the policemen could actually see Friar. Anyway, a drug transaction took place; Gray walked up to a red Festiva, registered to Friar’s mother, with $100 and no drugs and returned to Smith with drugs and no money.

The evidence, both direct and circumstantial, is more than sufficient to convict Friar. The law makes no distinction between circumstantial and direct evidence. For circumstantial evidence to be sufficient, it must exclude every other hypothesis consistent with innocence. Cigainero v. State, 310 Ark. 504, 506, 837 S.W.2d 479 (1992).

For his final argument on appeal, Friar contends that the trial court erred in considering State’s Exhibit Eight, evidence of his previous four convictions, when sentencing him as an habitual offender. Although this exhibit was not abstracted, we reach the merits of this argument as there is sufficient information as to its contents provided in the abstract and briefs of the parties.

Friar concedes that he voiced “no objection” to the introduction of Exhibit Eight into evidence even though a contemporaneous objection is a prerequisite to appellate review. See Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992). Likewise, we hold that if an issue is not raised below, it will be waived on appeal. Hickman v. Trust of Health, House and Boyles, 310 Ark. 333, 835 S.W.2d 880 (1992); Crow v. State, 306 Ark. 411, 814 S.W.2d 909 (1991). Even constitutional arguments are waived on appeal unless raised below. Tullock v. Eck, 311 Ark. 564, 845 S.W.2d 517 (1993).

Further, in Evans v. State, 310 Ark. 397, 836 S.,W.2d 384 (1992), a somewhat similar case, the appellant contended that one of his convictions should not have been considered for habitual offender purposes because it was pending on appeal. We noted that since the appellant raised this point for the first time on appeal, the court would not address it at all. Evans, supra.

Nevertheless, Friar urges this court to consider his argument regardless of his failure to preserve it below, because it constitutes a trial error in which his “substantial rights” have been affected. In support of this argument, Friar cites A.R.E. 103(d) and Addington v. State, 2 Ark. App. 7, 616 S.W.2d 742 (1981). In Addington, the Arkansas Court of Appeals reversed a guilty verdict because the proof of prior convictions failed to indicate whether appellant had been represented by counsel. Relying on A.R.E. 103(d), the appeals court considered the argument without an objection below because it affected a substantial right of the party. In Withers v. State, 308 Ark. 507, 825 S.W.2d 819 (1992), while we did not make reference to Addington, we effectively overruled its holding by stating:

The appellant misreads these rules. None of them absolves the party at trial from making the appropriate objection as a prerequisite to our review, and we have so held. See, e.g., Fretwell v. State, supra [289 Ark. 91, 708 S.W.2d 630 (1986)]; Wicks v. State, supra, [270 Ark. 366, 606 S.W.2d 366 (1980)]. Rule 11(0 of the Arkansas Supreme Court Rules and Rule 36.24 of the Arkansas Rules of Criminal Procedure both require review of the record for error in life and death cases, but this review presupposes that an objection was made at trial. And, as was noted by this court in Wicks, Ark. R. Evid. 103(d) at best is limited to evidentiary matters and in any case does not impose an affirmative duty on the appellate courts to review such matters for the first time on appeal. Again, there was no objection made by the appellant regarding his criminal record at trial.

Accordingly, since Friar failed to make an objection to Exhibit Eight during the trial, he has waived this issue on appeal.

Affirmed.


text:
    PRECISION STEEL WAREHOUSE, INC. v. ANDERSON-MARTIN MACHINE CO.
    92-1012
    854 S.W.2d 321
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993
    [Supplemental Opinion on Denial of Rehearing July 12, 1993.]

      Dailey, West, Core, Coffman & Canfield, by: Robert W.

      Bishop, for appellant.

      Pryor, Barry, Smith, Karber & Alford, by: Gregory T. Karber, for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant is Precision Steel Warehouse, Inc. (PSW), an Illinois corporation which brokers steel between mills and manufacturers. Appellee, Anderson-Martin Machine Company (Anderson-Martin), is an Arkansas company engaged primarily in machining metal parts. In May and September 1990, respectively, Anderson-Martin placed two orders with PSW for a certain type of steel to be utilized in the making of a parachute part for its customer, U.S. Forgecraft (Forgecraft), who held contracts with the U.S. Department of Defense (DOD). Anderson-Martin bought the steel from PSW and in turn made pieces for sale to Forgecraft. The precise wording on the purchase orders sent to PSW was “CR carbon steel strips, half hard #2 temper, dull finish, sheared edges, flat, shear across the grain as we form this material. Certify to QQ-S-698 and send certs.” This second phrase required that the steel comply with federal specification QQ-S-698 and that PSW send Anderson-Martin the steel mill certifications which showed the chemical makeup of the steel. There was no reference in the purchase order as to the particular chemical makeup of the steel.

Anderson-Martin received the first shipment of steel from PSW on August 1, 1990 without accompanying certification, processed it and sent some of its product to Forgecraft. On August 9, after several requests, PSW forwarded the steel shipment’s certifications to Anderson-Martin. That same day, Anderson-Martin electronically sent the certifications to Forgecraft. The quality control manager at Forgecraft called Anderson-Martin that afternoon and informed Anderson-Martin that its product was unacceptable because it contained too much phosphorus and was outside the allowable phosphorus range for steel under specification QQ-S-698.

Anderson-Martin called PSW to verify the chemical composition of the steel shipment since the phosphorus level was unusually high. Some three and one-half months later, on November 19, 1990, PSW sent Anderson-Martin the original steel mill certifications PSW received from its supplier, LTV Steel Company, with the chemical analysis. Anderson-Martin then compared the certifications it had first received from PSW with these original steel mill certifications from LTV and found that the phosphorous level of the steel shipment was indeed nonconforming. The certifications specified that the steel sent to Forgecraft had a phosphorus level of .128 percent while the maximum level allowed by government specification was .04 percent. Forgecraft rejected all the parts they had received from Anderson-Martin and were refunded their purchase money.

As a result, Anderson-Martin sued PSW for breach of warranty, breach of contract, and negligence in Sebastian County Circuit Court to recover $12,517.98, together with interest from the time on which damages were determinable and statutory attorneys’ fees. The jury, by general verdict, awarded Anderson-Martin the sum of $12,517.67. The trial judge additionally awarded attorneys’ fees in the amount of $2,500 to Anderson-Martin and costs. This appeal followed.

MOTION FOR DIRECTED VERDICT

PSW first argues that the trial court should have granted its motion for a directed verdict made at the close of Anderson-Martin’s evidence and again at the close of all the evidence because the only issue in this case was a question of law in that it involved the interpretation of the DOD specification, QQ-S-698, which is “federal law,” and since Ark. R. Civ. P. 44.1 requires the court and not the jury to determine an issue concerning the law of any jurisdiction or governmental unit outside the state, the court erred in presenting this question to the jury when it was a question of law.

A motion for a directed verdict should be granted only if there is no substantial evidence to support the verdict. Muskogee Bridge Co. v. Stansell, 311 Ark. 113, 842 S.W.2d 15 (1992); Bank of Malvern v. Dunklin, 307 Ark. 127, 817 S.W.2d 873 (1991). Substantial evidence is defined as that which is of sufficient force and character to compel a conclusion one way or another; it must force or induce the mind to pass beyond suspicion or conjecture. Loewer v. National Bank of Ark., 311 Ark. 354, 844 S.W.2d 329 (1992).

We recently summarized our standard of review for the denial of a directed verdict:

[I] n addressing the issue of whether a directed verdict should have been granted, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give it its highest probative value, taking into account all reasonable inferences deducible from it. Where the evidence is such that fair-minded people might have different conclusions, then a jury question is presented, and the directed verdict should be reversed.

Lytle v. Wal-Mart Stores, Inc., 309 Ark. 139, 143, 827 S.W.2d 652, 654 (1992)(citing Howard v. Hicks, 304 Ark. 112, 113, 800 S.W.2d 706, 707 (1990)). See Wingate Taylor-Maid Transp. Inc. v. Baker, 310 Ark. 731, 840 S.W.2d 179 (1992); Ciba-Geigy Corp. v. Alter, 309 Ark. 426, 834 S.W.2d 136 (1992).

We cannot agree with PSW’s rationale in asking the trial court to direct a verdict in its favor as a matter of law rather than submitting this case to the jury. First, since the specifications' in question, QQ-S-698, are terms and conditions relating to certain government contracts and are not matters of “federal law,” Ark. R. Civ. P. 44.1 does not apply. Also, Ark. R. Civ. P. 44.1 does not call for the “interpretation” of law but merely provides for notice and “determination” of foreign law. Secondly, the reference to “federal law” begs the issue, since we are not dealing with a question of law which the trial court should have determined, but factual matters relating to the construction of a contractual agreement between the parties in litigation which were properly submitted to the jury.

As a practical matter, this case boils down to two primary issues. First, was the contractual language contained in Anderson-Martin’s purchase order sufficient in terms of custom and practice in the trade to provide PSW as a vendor of steel with sufficient information with which to meet the requirement of DOD’s specifications contained in the order? Second, was PSW entitled to a directed verdict as there was insufficient evidence adduced at trial to support the jury’s verdict favoring Anderson-Martin?

PSW argues that a particular, specified chemical composition was an option that Anderson-Martin should have indicated on its purchase order, and absent this indication, PSW had no duty to provide a certain composition.

PSW relied on Section 6.2 of QQ-S-698, entitled “Ordering Data,” which states:

Purchasers should exercise any desired options offered herein, and procurement documents should specify the following:
(a) Title, number, and date of this specification.
(b) Quality or temper required.
(c) Whether killed steel is required.
(d) Chemical composition.
(e) Mechanical properties, if required.
(f) If finish other than as hot rolled is required.
(g) If other than No. 1 finish is required for cold rolled steel.

(Emphasis added.)

Section 6.2 (d), above, is cross-referenced to 3.2(d), which states:

3.2 Chemical composition. When chemical composition is specified (See 6.1 and 6.2), the composition shall be specified to maximum limits. However, if required it may be specified to minimum limits, ranges or to grade designation numbers (see 6.3). A ladle analysis of each heat of steel shall be furnished by the supplier.

In response, Anderson-Martin first argues that the evidence advanced at trial revealed the course of dealing, usage of the trade, and course of performance in the industry was such that a reference in its purchase order to QQ-S-698 had a certain, identifiable meaning to PSW, which made the issue at hand a jury question.

Tom Anderson of Anderson-Martin testified regarding how purchase orders with specifications are typically submitted. He said they simply refer to the specifications and do not specify a phosphorus level. He testified that typically certifications are sent to the buyer by the seller when the steel is shipped. However, in this instance Anderson-Martin had to repeatedly ask PSW for the certifications until they received them even though Anderson-Martin had begun to process the steel. Mr. Anderson testified that his customers who primarily sell to the Department of Defense must have the certifications because the government requires that steel be traceable all the way back to the steel mill, and this is done by the seller attaching the certifications to the orders relating DOD specifications. He also testified that, in doing business, he looked for the term “QQ-S-698” and not for any chemical breakdown on the documents he received in the regular course of business. Finally, he told the jury that Forgecraft’s purchase orders sent to Anderson-Martin only stated “QQ-S-698” and did not specify a chemical composition and that it was not necessary for him to do so in ordering from PSW.

Tim Matlock, director of quality control at Forgecraft, testified that it was the custom in the steel manufacturing industry to place and fill orders for government contracts by government specifications, such as QQ-S-698, without specified chemical composition. In addition, Mr. Matlock testified about an independent test of the unacceptable steel which he requested that American Interplex Corporation Laboratories perform. This outside test was a mandatory requirement for DOD for parties contracting with the military. This test revealed that the steel had phosphorus levels of .12 and .19 percent and thus was rephosphorized steel which is unacceptable under QQ-S-698. Matlock also discussed Federal Standard 66 of QQ-S-698 which specifically addresses chemical composition. It states that rephosphorized steel is not certifiable because it becomes brittle. Finally, he testified that while he was aware that Forgecraft did not make any chemical designation in its order to Anderson-Martin, giving chemical designations in purchase orders was not the usual method in the industry where government specifications are concerned.

In its defense, PSW called Steven Kesch, a metallurgical engineer with LTV Steel, as an expert in steel specification. He testified that the steel sent to Anderson-Martin met the hardness ranges of QQ-S-698 and that QQ-S-698 does not set a mandatory chemical composition for any quality steel but instead a buyer can list the particular chemistry they desire on their order. Mr. Kesch testified that rephosphorized steel meets the requirements of QQ-S-698, that he rarely sees orders to QQ-S-698 that mention chemical composition, and that the reason chemical composition is rarely specified is that the quality descriptions are based on in-use, so the steel is ordered for an in-use, and the quality description is usually sufficient to define that steel for its future use.

In rebuttal, Tom Anderson testified that the steel sold to Anderson-Martin by PSW exceeded the maximum allowable phosphorus level according to PSW’s own chemical analysis. In support of his testimony, he made reference to the 50th Anniversary Catalog from Precision Steel Warehouse. The catalog contained a table which gave the standard chemical analysis specifications for the type of steel at issue here as .04 percent maximum level of phosphorus.

We have long held that where the terms of a contract are ambiguous and capable of having more than one meaning, extrinsic evidence of custom and usage is permitted to establish the intent of the parties, and the meaning of the contract then becomes a question of fact. First Nat’l Bank of Crossett v. Griffin, 310 Ark. 164, 832 S.W.2d 817 (1992); Duvall v. Massachusetts Indemn. & Life Ins. Co., 295 Ark. 412, 748 S.W.2d 650 (1988); Black & Black Oil Co. v. Guy R. Smith Drilling Co., 298 Ark. 487, 712 S.W.2d 901 (1986); Venturi, Inc. v. Adkisson, 261 Ark. 855, 552 S.W.2d 643 (1977); Gibson v. Heiman, 261 Ark. 236, 547 S.W.2d 111 (1977); C & A Constr. Co., Inc. v. Benning Constr. Co., 256 Ark. 621, 509 S.W.2d 302 (1974); Fort Smith Appliance & Serv. Co. v. Smith, 218 Ark. 411, 236 S.W.2d 583 (1951). See also Hoover v. Arkoma Prod. Co., 29 Ark. App. 238, 780 S.W.2d 585 (1989); Floyd v. Otter Creek Homeowners Assoc., 23 Ark. App. 31, 742 S.W.2d 120 (1988). Since witnesses for PSW and Anderson-Martin sharply disagreed as to the meaning of the term “QQ-S-698” and its effect on the purchase order, the extrinsic evidence of custom and usage is admissible and it becomes a question of fact which the trial court properly submitted to the jury.

Course of dealing or usage of trade that explains or supplements a contract is considered competent evidence of the parties’ intent and can become a part of a contract. Ark. Code Ann. § 4-2-202(a) and Comment 2 (Repl. 1991). Course of dealing refers to the conduct between the parties prior to the agreement. § 4-1-205, Comment 2. Usage in trade is a factor in reaching the commercial meaning of an agreement in which the parties have made. § 4-1-205, Comment 4. If the usage was known to both parties or so widespread in the industry that the contract would be presumed to have been made with reference to it, it becomes a part of the agreement. Venturi, supra; Sharpensteen v. Pearce, 219 Ark. 916, 245 S.W.2d 385 (1952); Ben F. Levis v. Collins, 215 Ark. 172, 219 S.W.2d 762 (1949). Both course of dealing and usage can be used to explain or supplement expressed terms that are not inconsistent with the contract. § 4-2-202(a).

The Uniform Commercial Code section on course of dealing and usage of trade states:

(1) A course of dealing is a sequence of previous conduct between the parties to a particular transaction which is fairly to be regarded as establishing a common basis of understanding for interpreting their expressions and other conduct.
(2) A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation, or trade as to justify an expectation that it will be observed with respect to the transaction in question. The existence and scope of such a usage are to be proved as facts. If it is established that such a usage is embodied in a written trade code or similar writing the interpretation of the writing is for the court.
(3) A course of dealing between parties and any usage of trade in the vocation or trade in which they are engaged or of which they are or should be aware give particular meaning to and supplement or qualify terms of an agreement.
(4) The express terms of an agreement and an applicable course of dealing or usage of trade shall be construed wherever reasonable as consistent with each other; but when such construction is unreasonable express terms control both course of dealing and usage of trade and course of dealing controls usage of trade.
(5) An applicable usage of trade in the place where any part of performance is to occur shall be used in interpreting the agreement as to that part of the performance.
(6) Evidence of a relevant usage of trade offered by one party is not admissible unless and until he has given the other party such notice as the court finds sufficient to prevent unfair surprise to the latter.

Ark. Code Ann. § 4-1-205 (1991).

Viewing the evidence in the light most favorable to Anderson-Martin and giving it its highest probative value and taking into account all reasonable inferences deducible from it as we must do, we hold that fair-minded people might have different conclusions and a jury question was properly presented and the evidence admitted at trial was sufficient to support the jury’s verdict.

DEFENDANT’S REQUESTED INSTRUCTION NO. 8

Precision Steel requested the following Instruction No. 8:

You are instructed that Anderson-Martin Machine Company is barred from any remedy unless you find that it notified Precision Steel Warehouse, Inc. of any breach within a reasonable time after it discovered or should have discovered such breach.

The trial court wanted to change “is barred” to “may be barred” because whether Anderson-Martin gave PSW notice was a disputed fact for the jury to determine, and our rule is that the assumption of a disputed fact in a jury instruction is prejudicial error. Weatherford v. Wommack, 298 Ark. 274, 766 S.W.2d 922 (1989; Porter v. Lincoln, 282 Ark. 258, 668 S.W.2d 11 (1984); Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958). PSW argues that the unmodified version is applicable law, taken directly from Ark. Code Ann. § 4-2-607(3)(a), and therefore should have been read to the jury.

We need not review PSW’s argument on the merits because PSW elected to withdraw the instruction entirely and it was not submitted in any form, thus making it a non-issue since PSW failed to comply with the requirements of Ark. R. Civ. P. 51, which states, in part:

No party may assign as error the giving or the failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection, and no party may assign as error the failure to instruct on any issue unless such party has submitted a proposed instruction on that issue.

(Emphasis added.)

We recently held in Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993) that for a party to preserve for appeal any objection to the trial court’s failure to give an instruction, that party must make a proffer of the instruction to the judge and make his objections. Simply giving a set of instructions to the trial judge prior to trial is not sufficient to allow the appellate court to address the propriety of appellant’s proposed instructions. See also Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 317 (1992); City of Little Rock v. Weber, 298 Ark. 382, 767 S.W.2d 529 (1989); Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986); Wallace v. Dustin, 284 Ark. 318, 681 S.W.2d 375 (1984).

PLAINTIFF’S REQUESTED INSTRUCTION NO. 7

PSE next argues that the trial court abused its discretion by giving the following instruction:

You are instructed where the buyer has accepted goods and then given notification that they are nonconforming, the buyer may recover as damages for the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.

PSW’s attorney stated, “We object because that [instruction] does not instruct the Jury how they should calculate damages or what the measure of damages is. It merely allows them the freedom to award any amount. I feel that is not in accord with the other instructions given by the Court.” On appeal, PSW claims the words “which is reasonable” are too abstract and therefore error occurred since the jury had a “free rein” to determine whatever amount damages could be.

To the contrary, the wording of the instruction was derived directly from Ark. Code Ann. § 4-2-714(l)(1991),a part of our Uniform Commercial Code, which reads:

Where the buyer has accepted goods and given notification. . .he may recover as damages for any nonconformity of tender the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.

Arkansas R. Civ. P. 51 requires that “[a] mere general objection shall not be sufficient to obtain appellate review of the trial court’s action relating to instruction to the jury except as to an instruction directing a verdict or the court’s action in declining to do so.” We have considered an attorney’s similar objection to a jury instruction in Chandler & Ramsey v. Kirkpatrick, 270 Ark. 74, 603 S.W.2d 406 (1980) and held it was not specific enough under Ark. R. Civ. P. 51 to preserve the issue for appeal:

Third, Chandler’s counsel made only a general objection to the court’s instruction on the measure of damages, saying that “it did not set out the proper measure of damages for the case at bar.” Such a broad statement did not tell the trial court exactly why the instruction was wrong and therefore was not sufficiently specific to present any question for review. Ark. R. Civ. P. 51 (1979).

Id. at 77, 603 S.W.2d at 407. See also Hess v. Treece, 286 Ark. 434, 693 S.W.2d 792 (1985); Carroll-Boone Water Dist. v. M & P. Equip. Co., 280 Ark. 560, 661 S.W.2d 345 (1984).

Since Anderson-Martin failed to preserve this issue for appeal, we need not address it.

INDEPENDENT CHEMICAL ANALYSIS

Plaintiffs Exhibit No. 14 was the test report prepared by American Interplex Corp. Laboratories for Forgecraft giving an independent chemical analysis of the steel at issue here. PSW objected to its introduction on the basis that it was hearsay to which Anderson-Martin replied that it was a business record admissible under the exception found at Ark. R. Evid. 803(6).

Ark. R. Evid. 803(6) reads:

Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trust worthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

PSW argues that Plaintiffs Exhibit No. 14 was not a document kept in the course of a regularly conducted business activity since it was a test done to confirm a suspected problem with the steel Anderson-Martin sent Forgecraft. The record reveals that this report was indeed a record acquired and maintained by Forgecraft in the regular course of business since the government required an independent test of the steel used to fulfill military contracts by the purchasing parties.

Finally, there was no prejudice to PSW by the introduction of this document since the amount of phosphorus in the steel was not at issue. The chemical composition was not in dispute and was established by other evidence. We will not reverse for error that does not result in prejudice. Robinson v. Abbott, 292 Ark. 630, 731 S.W.2d 782 (1987).

NONEXPERT TESTIMONY

PSW finally argues that the trial court erred in allowing Tim Matlock to testify about Exhibit No. 14, the test report previously discussed. PSW argues that this was error since Mr. Matlock was not an expert on metallurgy.

We have established above that Exhibit No. 14 was a record kept in the regular course of business. Mr. Matlock was its custodian and was duly qualified as a quality control expert. He did not testify about anything outside his expertise but only about the contents of the report, for which no expertise was required. He testified that the chemical analysis therein reflected levels of phosphorus that exceeded QQ-S-698. As a quality control expert, this was certainly within his ambit.

Again, PSW fails to show how this prejudiced it in any way, so we can find no error on this point. Id.

ATTORNEY’S FEES

After this appeal was lodged with our court and prior to oral argument, Anderson-Martin filed a motion for additional attorney’s fees of $ 1,900.00 and costs of $208.94 pursuant to Ark. Code Ann. § 16-22-308 (Supp. 1991). We deny that motion since we have held that Ark. Code Ann. § 16-22-308 (Supp. 1991) is not applicable to attorney’s fees and costs on appeal. Mosley Mach. Co., Inc. v. Gray Supply Co., 310 Ark. 448, 837 S.W.2d 462 (1992); University Hosp. v. Undernehr, 307 Ark. 445, 821 S.W.2d 27 (1991).

For all the foregoing reasons, we affirm the trial court’s decision and deny the motion for attorney’s fees and costs.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

JULY 12, 1993

856 S.W.2d 306

1. Appeal & error — rehearing — reargument of points made on appeal prohibited. — Mere reargument of points already made on appeal is prohibited in a petition for rehearing by Ark. Sup. Ct. R. 2-3 (g).

2. Trial — jury instructions — instructions do not conform to ami — when proper to use. — When instructions are requested which do not conform to AMI, 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, and it is not error for the trial court to refuse to give a non-AMI jury instruction if the other instructions given covered the issue.

3. Trial — jury instructions — assumption of disputed fact— error. — The assumption of a disputed fact in a jury instruction is prejudicial error.

4. Trial — jury instruction — matter covered by instructions GIVEN — NO ERROR TO REFUSE PROFERRED INSTRUCTION. — Where taken together, the instructions given, including Court’s Instruction No. 8A, instructed the jury that a buyer must give notice to a seller upon breach of a contract to recover damages, which is precisely the substance of the instruction petitioner proffered without the binding language; therefore the trial court did not abuse its discretion in refusing petitioner’s proffered instruction.

Petition for Rehearing denied.

Daily, West Core, Coffman & Canfield, by: Robert W Bishop, for petitioner.

Pryor, Barry, Smith, Karber & Alford, by: Gregory T. Karber, for respondent.

Jack Holt, Jr., Chief Justice. Precision Steel Warehouse, Inc. (PSW) has filed a petition for rehearing of our decision in Precision Steel Warehouse, Inc. v. Anderson-Martin Mach. Co., 313 Ark. 258, 854 S.W.2d 321 (1993).

PSW makes three arguments in its petition for rehearing, only one of which is not merely a reargument of points already made as prohibited by Ark. Sup. Ct. R. 2-3(g) — the tender of PSW’s Proposed Instruction No. 8 which was rejected by the trial court. The appellee in its original brief stated “that PSW had elected to withdraw the instruction entirely” and it was not therefore submitted in any form. Appellee’s Br. 10. We mistakenly relied on this statement and refused to consider this point on appeal. We were wrong. In examining the record of the trial, we find that PSW’s Proposed Instruction No. 8 was tendered to the trial court and an appropriate objection was made as to its exclusion, the net result of which is that our holding in this regard was in error.

Inasmuch as the issue was properly preserved for appeal, we now examine this requested instruction for a determination as to whether or not the trial court committed prejudicial error in refusing to accept this instruction and charge the jury with its contents. In doing so, we hold the trial court was not in error.

The wording of the instruction PSW sought to have read to the jury was:

You are instructed that Anderson-Martin Machine Company is barred from any remedy unless you find that it notified Precision Steel Warehouse, Inc. of any breach within a reasonable time after it discovered or should have discovered such breach.

Inasmuch as this jury instruction sought by PSW does not conform to the Arkansas Model Jury Instructions (AMI), we examine this proposed instruction in light of our Per Curiam issued April 19, 1965, found at AMI Civ. 3d, p. VII, which requires AMI to be used unless the trial judge finds that the AMI does not accurately state the law, and if AMI are refused, the trial judge is to state his reasons for refusing AMI. In other words, when instructions are requested which do not conform to AMI, 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. Smith v. Stevens, 313 Ark. 534 (June21,1993); Newman v. Crawford Constr. Co., 303 Ark. 641, 799 S.W.2d 531 (1990); Ventress v. State, 303 Ark. 194, 794 S.W.2d 619 (1990). Furthermore, it is not error for the trial court to refuse to give a non-AMI jury instruction if the other instructions given covered the issue. Cavin v. State, 313 Ark. 238, 855 S.W.2d 285 (1993); Williams v. State, 304 Ark. 279, 801 S.W.2d 296 (1990); Henderson v. State, 284 Ark. 493, 684 S.W.2d 231 (1985).

The trial court refused the requested instruction on the basis that PSW refused to allow the trial court to modify the instruction by changing the “is” to “may be,” and the court felt that using the word “is” made it a binding instruction. The assumption of a disputed fact in a jury instruction is prejudicial error. Weatherford v. Wommack, 298 Ark. 274, 766 S.W.2d 922 (1989); Porter v. Lincoln, 282 Ark. 258, 668 S.W.2d 11 (1984); Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958).

PSW argues that the wording of the proposed instruction is taken directly from Ark. Code Ann. § 4-2-607(3)(a) (Repl. 1991), and the court erred by failing to instruct the jury on a statute applicable to the case. That code section states:

Where a tender has been accepted. . .[t]he buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.

Ark. Code Ann. § 4-2-607(3)(a) (Repl. 1991).

In examining the instruction given by the trial court to the jury, we cannot say that the jury received inadequate instruction on the requirement that a buyer give notice to a breaching seller. In addition to the general instructions contained in AMI 101-103, 202 and 2301, the record reflects that the jury was instructed on breach of express warranty, breach of implied warranty for a particular purpose, and breach of contract.

The Court’s Instructions No. 5 and 6 covered breach of express warranty and contained a specific requirement that mandated notice even though the similar AMI 1011 contains no wording requiring notice. Instruction No. 7 covered breach of implied warranty for a particular purpose and made no mention of notice, and none was contained in the similar AMI 1010. Instruction No. 8 covered consequential damages for breach of contract but made no mention of notice; Instruction No. 9 covered limitation of damages to repair or replacement; and Instruction No. 10 addressed an exclusive remedy clause.

Finally, Instruction No. 8A operated to instruct the jury about notice required by a buyer to a breaching seller:

You are instructed that where the Buyer has accepted goods and then given notification that they are nonconforming, the Buyer may recover as damages for the loss resulting in the ordinary course of events from Seller’s breach as determined in any manner which is reasonable.

(Emphasis added.)

This is precisely the substance of the instruction PSW desired to be given to the jury in Defendant’s Requested Instruction No. 8 without binding language. Therefore, we cannot say that the trial court abused its discretion in denying PSW’s requested instruction.

Taken together, the instructions given, including Court’s Instruction No. 8A, instructed the jury that a buyer must give notice to a seller upon breach of a contract to recover damages. We have held that it is not error to refuse an instruction if the instructions given embrace the instruction disallowed. Barnes, Quinn, Flake & Anderson v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993); Newman v. Crawford Constr. Co., supra.

Accordingly, the petition for rehearing is denied.


author: Robert H. Dudley, Justice.

text:
    Robert HIGGS v. STATE of Arkansas
    CR 93-54
    854 S.W.2d 328
    Supreme Court of Arkansas
    Opinion delivered May 24, 1993

      Joe Kelly Hardin, for appellant.

      Winston Bryant, Att’y Gen., by: Gil Dudley, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was found guilty of delivery of a controlled substance. He appeals and argues that the trial court erred in refusing to grant his motion for a directed verdict. There is no merit in the argument and we affirm the judgment of conviction.

We affirm the denial of a motion for a directed verdict in a criminal case if there was substantial evidence to support the conviction. Brown v. State, 309 Ark. 503, 832 S.W.2d 477 (1992). In determining whether there was substantial evidence to support the verdict, we review the evidence in the light most favorable to the appellee. Id. In so viewing the evidence in this case, the facts are that the police gave Jennifer Keener money to buy drugs from the appellant. She subsequently asked appellant to buy a rock of cocaine for her. He got into the front right seat of her car. She drove to a crack house, stopped the car, and handed appellant $30.00, which he handed to a person standing just outside his side of the car. The third person went into the crack house, came out, approached the car from appellant’s side, and handed appellant the cocaine, which he handed to Keener. The event was monitored by the police.

Appellant argues that since the third person ultimately took the money appellant cannot be guilty of “delivery” of a controlled substance. The argument is without merit as one does not have to receive money to be guilty of delivery of a controlled substance. Ark. Code Ann. § 5-64-401 makes it illegal to deliver a controlled substance. “Delivery” is defined as “the actual, constructive, or attempted transfer from one (1) person to another of a controlled substance or counterfeit substance in exchange for money or anything of value.” Ark. Code Ann. § 5-64-101(f) (1987). The statute prohibits the “delivery” of a controlled substance, not its sale. The statute does not require that the perpetrator ultimately receive money, only that he participate in the transfer of the substance in exchange for money or anything of value. See Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255(1985). The fact that an accused is only the agent of a buyer or seller of drugs does not remove the transfer from the ambit of the statute. Parker v. State, 302 Ark. 509, 790 S.W.2d 894 (1990); Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979).

Affirmed.