author:
Conley Byrd, Justice.
      J. Fred Jones, Justice,

text:
    Harold NETHERCUTT and Charles T. PAYNE v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT
    5-5692
    475 S.W. 2d 517
    Opinion delivered January 24, 1972

      Warren ir Bullion, for appellants.

      Terral, Rawlings, Matthews ir Purtle, for appellee.
   Conley Byrd, Justice.

Appellants Harold Nethercutt and Charles T. Payne were assistant superintendents under contracts of employment with appellee Pulaski County Special School District for the twelve months from July 1, 1968, to June 30, 1969. Both had been so employed oh year to year contracts for a number of years. In January of 1969, it became apparent that Superintendent Leroy Gattin’s contract would not be renewed. At the same time appellants learned that there was some question whether their contracts would be renewed. Some of the school board members took the position that selection of assistant superintendents should be left up to the incoming superintendent, Dr. Heidbrink. However it does not definitely appear that appellants were fully aware of the board’s position. From January to the end of their contract term appellants regularly attended the public school board meetings. They admittedly expressed their professional opinion that Mr. Gattin was a competent superintendent. After it became public knowledge that Mr. Gattin’s contract would not be renewed and before Dr. Heidbrink was selected, one of the appellants was reported in a local newspaper as having pointed his finger at one of the board members and having told the board member that he was “nit picking.” On March 12, 1969, Superintendent Gattin by letter notified appellants that five members of the board had said they would not vote to renew their contracts. Finally on June 3, 1969, the superintendent, as directed by the board, formally notified the appellants in writing as follows:

“At a regular meeting of the Pulaski County Special School District Board on. April 8, 1969, the majority of the Board voted not to renew your contract for the 1969-70 school year for the following reasons: ‘It is the opinion of the majority of the Board that it is in the best interest of the Pulaski County Special School District and that it is in the opinion of the majority of the Board that your services have been inefficient and incompetent.’ Sincerely yours, Leroy Gattin, Superintendent of Schools.”

In their actions against the board, for reinstatement appellants alleged that effective July 1, 1968, the board had adopted a teacher tenure policy, that the teacher tenure policy became a part of their contract, and that the board did not comply with the teacher tenure policy in terminating their contracts. The teacher tenure policy adopted by the board is:

“All certified personnel entering the Pulaski County Special School District are on probation until they have served under an annual contract for three consecutive years and have been elected for their fourth contract. Upon completion of this probationary period and the receipt of the fourth contract, all certified personnel become entitled to tenure status, in Pulaski County Special School District. Teachers who have taught three consecutive years prior to July 1, 1968 shall be said to have completed their probation. The three years service shall not include any years taught under an emergency certificate.
“The annual contract of all professional employees under tenure (except the Superintendent and certified personnel on probationary status) employed under the annual contract shall be renewed unless the following procedure has been pursued:
“1. Any person who, in the opinion of the Principal, Superintendent, or the School Board, is not rendering efficient and competent service or is insubordinate shall be given written notice of the particular respects in which such person is considered inefficient, incompetent, or insubordinate; and such person shall be informed by the Principal or Superintendent, in consultation, concerning any unsatisfactory rating which has been given with respect to such a person. The purpose of this notice shall be to give the person so notified the opportunity to remedy the alleged deficiencies.
“2. Any person notified under paragraph (1) who, in the opinion of the Principal, Superintendent and the Board of Directors, has not remedied the alleged deficiencies within 30 days of the notification shall be given:
a. A written notice of the alleged deficiencies which have not been remedied.
b. An opportunity for a hearing thereon before the Welfare Committee at a special meeting designated for this purpose. At the special meeting such person may have any representative or spokesman desired by him. The Welfare Committee shall consist of seven- (7) persons chosen annually on or before July 1, as follows: Four teachers chosen by the teachers, two principals chosen by the principals and one administrative staff. The members of the Welfare Committee shall present their advisory opinion at a meeting of the Board of Directors held before it reaches its decision on the termination of the contract.
c. An opportunity for a hearing thereon before the School Board at a special meeting designated for this purpose. At the special meeting such person may have any representative or spokesman desired by him.
“3. Not withstanding the foregoing provisions of this section the contract of any person serving under annual contract with the District who is suffering from mental or physical disability which renders the person incapable of performing the service contemplated under the contract or engages in immoral or licentious conduct prejudicial to the best interest of the school system may be terminated any time. However, his contract may not be terminated prior to his receipt of a reasonable notice of the specific charges, an opportunity for a hearing before the Board of Directors, at which hearing he may have any representative or spokesman desired by him.
“4. Any certified person having three consecutive years of service in Pulaski County Special School District and reemployed for the fourth year shall be granted tenure.
“5. The provisions of this policy shall be effective July 1, 1968.”

Admittedly the board did not follow the provisions of the teacher tenure policy, but the minutes do show that after appellants had filed an action against the board, the board offered to give them a hearing. There is other evidence to the effect that the board suspended its rules before taking action in formally notifying appellants that their contracts would not be renewed.

Before trial of this action in the lower court, a school board election had been held at which Mr. Gatdn was elected as a member of the board. After Mr. Gattin’s election, Dr. Heidbrink was removed as superintendent. At the time of trial, Mr. Gatdn was acting superintendent.

The trial courts jointly ruled that appellants had waived any rights they might have had by reason of their contracts and dismissed their action. For reversal, appellants contend that the teacher tenure provisions were part of their contracts; the provisions thereof were not followed; the board could not temporarily suspend the policies; they did not waive their rights; and that they were terminated without procedural due process.

We do not reach appellants’ arguments because under the laws of this State a school board is a body corporate created by law and as such has no authority not conferred by law. The matter of teacher contracts or employment is controlled by Ark. Stat. Ann. § 80-1304 (b) (Süpp. 1969) as follows:

“(b) Every teacher in the State shall be employed by written contract. In districts which include cities of 10,000 or more population, according to the last Federal census, school boards may elect the superintendent for a period not to exceed 3 years. In other school districts employing a superintendent, school boards may elect the superintendent for a period of not to exceed 2 years. All other teachers and personnel of school districts shall be employed by written contract annually.
# * *
“Every contract of employment hereafter made between a teacher and a board of school directors shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the school year next succeeding the date of termination fixed therein, which renewal may be made by indorsement on the existing contract instrument; unless during the period of such contract or within ten (10) days after the termination of said school term, the teacher shall be notified by the school board in writing delivered in person or mailed to him or her at last and usual known address by registered mail that such contract will not be renewed for such succeeding year, or unless the teacher during the period of the contract or within ten (10) days after close of school shall deliver or mail by registered mail to such board his or her written resignation as such teacher, or unless such contract is superseded by another contract between the parties. Provided that no contract for the succeeding school year shall be entered into between the school board and any person prior to the beginning of the second semester of the current school year. If a teacher quits or refuses to teach in accordance with his or her contract without just cause, he or she is hereby prohibited from teaching elsewhere during the time for which he or she had been employed. Provided, that nothing herein shall prohibit any school board from entering into a two [2] year or three [3] year contract as authorized in the first paragraph of this subsection.”

As we construe this statute, a school board, as it may be constituted following any school election, is free to reemploy or terminate any teacher with or without cause. A school board, having only such authority as is granted it by law, cannot by the adoption of a teacher tenure policy give to a teacher a tenure beyond or greater than that authorized by the law limiting such employment to an annual contract.

Since the record admittedly shows that appellants received their statutory notice of termination within the time provided by law, it follows that their causes of action for reinstatement and damages were properly dismissed.

Affirmed.

Jones, J., concurs.

J. Fred Jones, Justice,

concurring. I concur in the results reached by the majority in this case but I do so on the basis that the tenure policy did not become a part of the teaching contracts. I find no conflict between the provisions of the teacher tenure policy adopted by the board and Ark. Stat. Ann. § 80-1504 (b) (Supp. 1969) pertaining to teacher contracts.

As I interpret the statute, it simply provides for a renewal of the annual contract on the same terms and for the same salary unless written termination notice is given in advance by the school board or by the teacher as set out in the statute, or unless such contract is superseded by another contract between the parties.

When a principal, superintendent or a school board is of the opinion that a teacher is not rendering efficient or competent service, I find nothing in the statute that would prevent a school board from making a binding written contract with a teacher agreeing to advise her of such opinion and agreeing to give her an opportunity to remedy the inefficiency as well as giving her a hearing thereon, before they would fire her.

No such provision was contained in the written teacher contracts in the case at bar, so for that reason I also affirm.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    HOME INSURANCE COMPANY v. Joann CRAWFORD (Kyser)
    5-5718
    475 S.W. 2d 889
    Opinion delivered January 24, 1972
    [Rehearing denied February 28, 1972.]

      Griffin Smith, for appellant.

      Gaughan, Laney, Barnes, Roberts & Harrell, for appellee.
   Conley Byrd, Justice.

The issues in this case grow out of a fire insurance policy issued by appellant Home Insurance Company through the Silliman Agency, Inc., to Jerry and Marie Pennington containing a mortgagee clause in favor of First Federal Savings and Loan Association of Camden, Arkansas. On August 25, 1969, the Penningtons conveyed the premises to appellee Joann Crawford (Kyser) who assumed the mortgage to First Federal. In making the conveyance and assuming the loan, the parties acted on the advice of First Federal’s Fordyce branch manager, J. H. Joyce. Upon a First Federal form furnished by Joyce it was agreed that the escrow fund for taxes and insurance and the insurance policy would be transferred to appellee. Joyce instructed the parties to go to the law office of Thomas Sparks to have the deed prepared, then to have the deed recorded and return it to Joyce to be kept with other legal papers on the property. Joyce gave no verbal instructions to appellee to notify anyone about the transfer of the policy. The deed was not returned to Joyce until after the property was damaged by fire on September 2, 1969. Home Insurance Company, not having received an endorsement showing transfer of the policy to appellee, denied liability to her. However, under the mortgagee clause, it paid First Federal and took an assignment of the mortgage. Home Insurance then instituted this action to foreclose the mortgage and for a declaratory judgment that it had no obligation to appellee under the policy. The trial court denied any relief to Home Insurance and awarded judgment including 12% penalty and attorney’s fee to appellee. For reversal Home Insurance contends among other things that the transfer without notice voided the policy and that the trial court erred in assessing the penalty.

The stipulated facts show that both the Silliman Insurance Agency and First Federal were founded by W. E. Silliman, who is now President of Silliman Agency and Chairman of the Board and General Manager of First Federal. First Federal and Silliman Agency are both located in the same building in Camden and share the same outside entrances to the building. As a part of its business First Federal employees regularly handle transactions such as here involved and in the making of new loans take applications for insurance through the Silliman Agency. The Silliman Agency forms for transfer of a policy and for application for insurance were furnished to the First Federal’s Fordyce branch. According to instructions from W. E. Silliman, employees of First Federal waited until they had obtained a recorded deed before they notified the Silliman Agency to transfer a policy of insurance.

H. B. Silliman, general manager of the Silliman agency, testified that the personnel in the Fordyce branch of First Federal normally notified the agency of losses and furnished the necessary information.

It is undisputed that the Silliman Agency is a general agent of Home Insurance and that the transfer would have been consummated if the deed had been returned.

Under the proof, we hold that the chancellor was warranted in concluding that Joyce was an authorized agent of the Silliman Agency and that as such he had represented to the appellee that the property was insured. Since under Ark. Stat. Ann. § 66-3219 (Repl. 1966) such an oral contract is binding on the insurer, the Chancellor properly held Home Insurance liable upon the policy.

No error was committed in the allowance of the 12% penalty pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1966) on the counterclaim filed by appellee. That statute provides for the payment of the penalty where a loss has occurred and the insurer fails to pay after demand has been made therefor. We can find nothing in Ark. Stat. Ann. § 66-3239 (Repl. 1966) that prevents the allowance of the penalty upon a counterclaim for a loss.

Home Insurance makes some other contentions such as, that Silliman Agency was not chargeable with knowledge of the change in ownership, and that First Federal could not possibly be an agent of Silliman but in view of the foregoing disposition we find it unnecessary to discuss them.

Affirmed together with an allowance of an additional attorney’s fee of $750.00.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I cannot agree with the majority opinion, because it disregards the separate corporate identities of First Federal Savings & Loan Association and Silliman Agency, Inc., in order to find evidence that an employee of the former was an agent of the latter. The corporate structure is to be disregarded only when it has been illegally abused to the injury of another. Arkla Chemical Co. v. Palmer, 250 Ark. 405 (1971), 465 S. W. 2d 335. This rule has been recognized as being applicable even where the two corporations involved were parent and subsidiary. Rounds & Porter Lumber Co. v. Burns, 216 Ark. 288, 225 S.W. 2d 1. Control and ownership by the same persons are not a sufficient basis for disregard of separate corporate identity. In Lange v. Burke, 69 Ark. 85, 61 S.W. 165, we said:

In supporting his contention the receiver lays much stress upon the fact that the two corporations were practically under the control of the same persons; Kaiser and Ohrndorf being directors and officers, and the owners of the large majority of the stock, in each company. But this fact does not prove that the two companies were in fact one corporation, and that the trustee, the appellant, was not a creditor of the lumber company. A corporation is an artificial being, separate and distinct from its agents, officers, and stockholders. Its dealings with another corporation, although it may be composed in part of persons who own the majority of the stock in each company, and may be managed by the same officers, if they be in good faith and free from fraud, stand upon the same basis, and affect it and the other corporation to the same extent, they would if each had been composed of different stockholders and controlled by different officers.

Even those corporations with identical officers, stockholders and managers and with the same post office address are separate legal entities, and liability of one for the acts of the other must be predicated upon other facts, and the fact that such corporations have mutual dealings is not sufficient. Mannon v. R. A. Young & Sons Coal Co., 207 Ark. 98, 179 S. W. 2d 457; Ft. Smith Light & Traction Co. v. Kelley, 94 Ark. 461, 127 S. W. 975. See also, G. W. Jones Lumber Co. v. Wisarkana Lumber Co., 125 Ark. 65, 187 S. W. 1068; Mid-State Homes, Inc. v. Knight, 237 Ark. 802, 376 S. W. 2d 556. Although a subsidiary or auxiliary corporation created as an agency of the parent corporation, may sometimes be treated as identical with the parent, especially if the stockholders are substantially the same or their systems of operation unified, the corporate veil may be pierced when allowing the subsidiary or auxiliary to claim separate existence would constitute constructive fraud, but even then the rule is to be applied with extreme caution. Plant v. Cameron Feed Mills, 228 Ark. 607, 309 S. W. 2d 312; Banks v. Jones, 239 Ark. 396, 390 S. W. 2d 108.

Special circumstances justifying piercing the corporate veil are neither alleged nor proved in this case. Appellee alleged that the transaction between her and the sellers was handled by First Federal Savings & Loan Association through James Joyce, who, she alleged, was its employee. The memorandum of assumption of the loan exhibited to the complaint recited a request that First Federal Savings & Loan notify the proper insurance agent of the transfer and that the policy in force be transferred. It was also alleged that Joyce agreed to do this. It was alleged that First Federal — not Joyce— acted as agent for the Silliman Agency and the Home Insurance Company, so that knowledge of the. transfer was imputed to Home and that the insurance company was estopped to deny its liability to appellee under the policy.

The chancery court’s findings of fact include a finding that Joyce, not First Federal, was an agent of Silliman Agency, Inc., and acting for it as well as for First Federal. There is no evidence that the two corporations have more than one officer in common. The managers are not the same person. It is not shown that the ownership is even substantially the same. It would be surprising if such a thing were possible with a Federal Savings and Loan Association, in which the depositors are the equivalent of stockholders. A subsidiary or auxiliary corporation is not involved. The basis for invoking the rule for piercing the corporate veil is not even remotely present.

The only evidence pertaining to Joyce’s alleged agency is that the Silliman Agency furnishes forms of its applications for insurance and for transfers of insurance to the First Federal office at Fordyce, which places insurance for its customers. These forms when filled in and signed are mailed to the Silliman Agency in Camden. Transfers are made there when the forms are received. I can find no evidence which met appellee’s burden in this regard. It seems obvious to me that this is the reason she did not rely on Joyce’s agency in her complaint.

It must be remembered that this is not an action by appellee against the mortgagee, First Federal. Furthermore, appellant’s right to recover is not defended upon the ground that the right of the insurance company as subrogee was limited or destroyed because of any counterclaim appellee might have against appellant’s subrogor, First Federal.

It has often been said that hard cases make shipwreck of the symmetry of the law. In my opinion, this case must take its place in the forefront of that category.


author: Conley Byrd, Justice.

text:
    Leon WILLIAMS v. STATE of Arkansas
    5662
    475 S.W. 2d 685
    Opinion delivered January 24, 1972
    [Rehearing denied February 28, 1972.]

      Harold L. Hall, for appellant.

      Ray Thornton, Attorney General; Henry Ginger, Deputy Atty. Gen., for appellee.
   Conley Byrd, Justice.

For reversal of the verdict finding him guilty of assault with intent to kill, appellant Leon Williams urges that (1) the evidence is insufficient to support the verdict and (2) the court erred in giving State’s requested instruction No. 2 over his objection.

On the evening of August 7, 1969, outside a cafe in Little Rock there was a fight between “Pap” Williams and David Lewis. Appellant, “Pap’s” brother, one of a number of people watching the fight, kept telling people to stay out of the fight. When William Ham went up to the combatants, appellant shot him in the back. Appellant, “Pap” Williams and his wife Ruby testified that Ham came to the scene of the fight with a knife in his hand, threw Ruby Williams to the ground when she attempted to stop him from entering the fight, and went over to get into the fight. Ham, a friend of David Lewis, and other witnesses for the State testified that Ham had no knife and had just pulled Lewis off “Pap” Williams when he was shot. Appellant testified that he fired just once, shooting down, and didn’t intend to hit Ham but to scare him off. One young witness testified that after Ham was shot and fell on his face, he asked appellant if he could pick up Ham, that appellant told the witness, "No, you can’t pick him up, Don’t nobody pick him up,” but the witness picked him up anyway.

The court instructed the jury on both assault with intent to kill and assault with a deadly weapon (a misdemeanor). We find the evidence was sufficient to support the felony verdict.

Appellant next complains of State’s requested instruction No. 2, concerning intent to kill, to which appellant generally objected. Appellant relies upon Davis v. State, 115 Ark. 566, 173 S. W. 829 (1914); however, in the Davis case a substantially similar instruction was approved as correct. Davis was reversed because of the court’s failure to instruct the jury that an out of court confession was not sufficient to warrant a conviction until there was other proof tending to show the offense was committed.

Affirmed.


author: Frank Holt, Justice.

text:
    H. C. BROWN and Coral Brown v. LeTOURNEAU COLLEGE
    5-5700
    475 S.W. 2d 521
    Opinion delivered January 24, 1972

      Kenneth R. Smith and Procter ir Huckaba, for appellants.

      Fitton, Meadows & Adams, for appellee.
   Frank Holt, Justice.

The appellants purchased a home from the appellee and later learned that owners of four adjoining lots had a perpetual right to receive water from the well located on appellants’ lot. The abstract of title did not reflect this encumbrance. The appellants brought suit against the appellee for rescission of the contract and refund of their purchase price or, in the alternative, for damages. The court found that the existence of the water right obligation was an encumbrance upon appellants’ property and constituted a breach of the deed’s warranty clause; denied rescission and, instead, awarded $1,000 in damages to the appellants. On appeal appellants assert only that the awarded damages are inadequate and the refusal of the court to award $2,850 in damages was against the preponderance of the evidence.

The appellants presented as a witness a local real estate agent who was familiar with real estate values in this locality. According to him, the existence of the unknown perpetual obligation to furnish water to these four adjoining lots for $2.50 per month per lot was an encumbrance upon the property and damaged its fair market value to the extent of $2,850 at the time of the purchase.

The appellee presented evidence from the individual who sold the property to it. He testified that he had some of his property platted into a subdivision which included the lot now owned by appellants. At that time he recorded an agreement that for a monthly rate of $2.50 per lot water would be furnished to adjoining lot owners from a well he had drilled on lot No. 32 which is the one appellants now own. The house he constructed on this lot was a modern all electric residence. He testified with respect to the water right obligation and its effect upon the value of this property that: “Why, I thought that was an asset myself.” Further, that he “figured that the water [income] would practically pay for the whole electric bill every month. We were getting up in age and we thought that was a good deal.” Evidence was also adduced that pursuant to the water right agreement, the appellants were furnishing water to only two of the adjoining owners. Furthermore, one of them has now drilled his own well and asked to be disconnected from appellants’ waterline.

As appellants recognize, we have often held that where there is conflicting evidence on an issue of fact, the chancellor is in a more favorable position since he observes and hears the witnesses. Our de novo review is limited to exhibits and printed pages. Also, we uphold the chancellor unless his findings are against the preponderance of the evidence. Kittler v. Phillips, 246 Ark. 233, 437 S. W. 2d 455 (1969). In the case at bar there was evidence that the encumbrance upon appellants’ property was detrimental to its value and, also, evidence that it was an asset or an enhancement in its value. We cannot say that the findings of the chancellor are against the preponderance of the evidence.

Affirmed.


author: Frank FIolt, Justice.

text:
    W E. CLARK & SONS, INC. v. Eloise ELLIOTT, Adm’x, Lyons Machinery Co. and Patent Machinery Co. Scaffolding Company
    5-5708
    475 S.W. 2d 514
    Opinion delivered January 24, 1972

      House, Holmes & Jewell; By: Robert L. Robinson, Jr., for appellant.

      Wright, Lindsey ir Jennings and Barber, Henry, Thurman, McCaskill ér Amsler; McMath, Latherman <b Woods, for appellees.
   Frank FIolt, Justice.

Appellee Elliott’s decedent husband was fatally injured when he fell 9 stories from a swinging-stage scaffold. The scaffold was suspended from the top of a 10-story building by two cables, one on each side of the scaffold, attached to window washer hooks affixed to the top of the building. The accident occurred as a result of a defective eye loop in one of the two cables. The eye loop pulled loose, causing one end of the scaffold to drop and the decedent’s fatal fall. Following the accident it was discovered that the defective eye loop was not braided or spliced back into the cable itself. It was wrapped with wire and underneath the wire was a tight-fitting metal thimble. The outside wire wrapping and the metal thimble obscured the fact that the eye loop was not properly spliced. The eye loop on the other cable was properly spliced.

Appellee Elliott’s decedent was the employee of E. M. Bush, the general contractor in the construction of the new highway department building. The scaffold was owned by appellant Clark, a subcontractor on this project. Appellee Patent Scaffolding Company manufactured the scaffold and appellee Lyons Machinery Company, Patent’s distributor in this area, sold the scaffold in 1954 to appellant Clark. The general contractor, Bush, and the subcontractor, Clark, sometimes swapped equipment. Clark loaned this scaffold to Bush in October 1965 and Bush had possession of it from that date until March 1966 when the fatal accident occurred.

Appellee Elliott sued Clark, the owner of the scaffold, on the theory of negligent repair and negligent inspection before lending the scaffold to Bush. Elliott sued Patent, the manufacturer, on the accusations of negligent design, selection of materials, assembly, construction, inspection, and testing of the scaffold. Appellee Lyons, the local distributor, was made a defendant on the theory of negligent repair. Each of the appellees denied the allegations of negligence, pleading various defenses. Patent specifically denied that it furnished this particular cable.

This case was before us in Elliott v. Clark & Sons, 247 Ark. 651, 447 S. W. 2d 129 (1969) in which we reversed .a summary judgment rendered in favor of Clark and remanded the issue for trial, holding that a jury question existed as to Elliott’s claim against Clark. A comprehensive recitation of the facts is found in that opinion. Upon a retrial, the trial court directed verdicts for appellees Lyons and Patent. The jury awárded $52,-773 to appellee Elliott against appellant Clark. For reversal of that judgment as to Lyons and Patent, from which appellant seeks contribution, appellant first contends that the trial court erred in granting their motions for directed verdicts. We cannot agree with this contention.

Appellant Clark, owner of the scaffold manufactured by Patent in 1954, had purchased it from appellee Lyons, Patent’s exclusive distributor in Arkansas for the past 20 years. It appears that appellant had purchased about 16 Patent scaffold drums from Lyons during these years, including this one about or sometime after 1954; Clark’s employees were instructed not to try to make cable repairs and, further, to return them to Lyons for that purpose; Clark returned to Lyons some of these 16 drums for repairs and cable lengthening; there was no evidence that this particular scaffold drum or cable was ever returned to Lyons for replacement or repair work; the evidence is undisputed that Lyons never attempted to make repairs and if such were requested, the drums or cables would be forwarded to Patent; the cable with the defective eye loop was manufactured by United States Steel from which Patent never purchased its cable; the properly spliced companion cable on the scaffold was different, however, this cable was of the type furnished by Patent; the cable with the defective eye loop was a completely different type than that ever used by Patent; the wire wrapping around the unspliced cable was a 16-gauge reinforcing tie wire and not a 14-gauge galvanized wire which was used by Patent; the wrapping wire around the defective eye loop was a type of wire commonly used around construction sites and the type wire used to tie reinforcing steel; appellant Clark had loaned its scaffolding equipment to other contractors throughout the state; the thimble underneath the wire wrapping on the defective eye loop on this completely different type cable was somewhat similar in a marking to the ones produced by one of Patent’s suppliers and yet the thimble was much smaller in size than the type used by Patent; iron workers on construction jobs are familier with eye loops in these cables and it is not uncommon for them to make eye loop splices on the job since no particular equipment is necessary; Bush’s job superintendent testified that he personally inspected this particular defective eye loop when the scaffold was loaned to them by the appellant and the eye of each of the two cables looked alike; the wire wrapping around the defective eye loop was dirty and any defect was not visible; that the eye loop was in substantially the same condition when it was borrowed as when it caused the accident four months later; and, further, that neither he nor any of his employees attempted to repair or fabricate the defective eye loop.

Appellant, in effect, argues that by directing verdicts for Patent and Lyons the jury was prevented from considering inferences from the proof as to possible negligent manufacturing of the defective eye loop by Patent or someone on its behalf, or the possible negligent repair or inspection by either or both Patent and Lyons. In Kapp v. Sullivan Chevrolet Co., 234 Ark. 395, 353 S. W. 2d 5 (1962) we aptly said:

<<# * * Appellants’ entire case rests upon conjecture and speculation. Several possible causes of the break are argued, but in truth, they are only possibilities, and do not reach the status of probabilities. Negligence cannot be established by guesswork.”

In the case at bar we think the trial court correctly directed a verdict in favor of appellees Lyons and Patent. The burden was upon appellant Clark to produce some substantial evidence to support its contention for contribution from these appellees. We cannot say that the most favorable inferences deducible from the evidence meet the substantial evidence test inasmuch as the jury would have for consideration only a choice of possibilities.

Appellant next contends for reversal that the trial court erred in giving appellee Elliott’s requested Instruction No. 15. Appellant does not object to the form of the instruction which is AMI 2215. However, appellant argues that the element of “pecuniary injuries”, as to “what the deceased earned and what he might reasonably have been expected to earn in the future”, is not supported by the testimony. There was evidence that appellee’s decedent husband earned approximately $3.98 per hour, producing an income between $5,000 and $6,000 the year preceding his death. Decedent also received a $60 per month pension as a disabled war veteran. A fellow worker testified that an iron worker who was making $5,000 to $6,000 when the decedent was fatally injured would now have an approximate earning capacity of $10,000 per year. At the time of his demise he was 47 years of age and had 17 years experience as an iron worker. Most of his income was contributed to the maintenance of his family. In Missouri Pacific Trans. Co. v. Simon, 199 Ark. 289, 135 S. W. 2d 336 (1939) we said:

“No rule has been established — and in the nature of things none can be — for determining what compensation should be paid for loss of life, for pain and suffering, for loss or decrease of earning power, for mental anguish accompanied by physical injury, for loss of companionship, and for the various elements entering into damage actions.”

We think there is substantial evidence to support the element of damages as to the aspect of “pecuniary injuries.”

Appellant also asserts that the evidence is insufficient to justify $1,273 as funeral expenses awarded by the jury on behalf of the estate. In this respect there is no competent evidence to support an award in excess of $500. To that extent we agree with the appellant and accordingly reduce the judgment.

Appellant next asserts that the trial court erred in admitting, over appellant’s objection, incompetent opinion testimony. Appellant contends that it was prejudicial error for the court to permit a witness, William L. Porter, to respond as follows:

Q. If you had inspected this particular eye loop involved here would you have been able to determine as a qualified rigger that it was not properly fabricated?
A. Yes, sir, I believe I would have.

This witness possessed special qualifications and skill with respect to cables and scaffolds. He had served an apprenticeship for three years and was an instructor on this subject for the Little Rock Vocational School for four years. In our view this witness possessed an expertise on this subject of cable splicing and rigging which was not within the ken or purview of the average juror, four of whom were women. To this jury he demonstrated with cables and wrappings the proper and improper method of making eye loops. The court did not abuse its discretion in permitting this testimony. See Jones v. Turner, 244 Ark. 603, 426 S. W. 2d 401 (1968); Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S. W. 2d 684 (1953); Lee v. Crittenden County, 216 Ark. 480, 226 S. W. 2d 79 (1950); and McCormick, Law of Evidence § 13.

The judgment is affirmed with the modification as previously indicated.

Affirmed as modified.


author: Frank Holt, Justice. J. Fred Jones, Justice,

text:
    INTERNATIONAL PAPER COMPANY v. Fred W. LANGLEY
    5-5765
    475 S.W. 2d 686
    Opinion delivered January 24, 1972
    [Rehearing denied February 28, 1972.]

      Gaughan, Laney, Barnes, Roberts ir Harrell, for appellant.

      Brown, Compton ir Prewett, for appellee.
   Frank Holt, Justice.

This is a workmen’s compensation case in which the appellee claims compensation for total permanent disability as a result of two separate heart attacks. The circuit court affirmed the Commission’s finding that the appellee had suffered a 65% permanent partial disability to his body as a whole as a result of both attacks. From that judgment comes this appeal. We first consider appellant’s assertion that the evidence is insubstantial to support the Commission’s finding.

The appellee, 43 years of age, was a long-time employee of appellant as a manual laborer. He based his claim for compensation upon a heart attack occurring on December 17, 1965, and, after returning to work, another attack on June 5, 1967.

It appears undisputed that before December 1965 appellee had experienced some cardiac problems, although he continued to work regularly. Appellee testified that before the December attack, “something kept mashing my windpipe off and on and I couldn’t hardly breathe during, that, I guess four or five days. Well, I came back one afternoon, I was on evenings, and I was just fixing to go to work and I picked up one bag [an empty paper bag 7 feet long and 2 feet wide] off the table there and it hit me in the left arm and my chest crushing in, and of course, I went on home and told my foreman I was going to the doctor that I would be back in a little while.” He also testified:

Q. Prior to that time. Prior to picking the bag up did you have any difficulty in your arm or chest?
A. Sure.
Q.. What type of pain had you had during the three or four hours prior to that time?
A. It was just a sharp pain running down my arm and it just hurt real bad, a throbbing pain in there.

Appellee was hospitalized and treated by his doctor who described his condition as being “quite typical of a coronary attack, coronary artery disease, acute.” The diagnosis was that appellee has a coronary disease (narrowing of the coronary arteries) with angina. With respect to the December 1965 incident, one of appellee’s doctors testified: “Let'me say this. I think his original pain, there is no reason for suspecting ... in the original attack, there would be no reason for suspecting a relationship between work and coronary artery disease in December 1965.”

In the circumstances we are unable to say there was substantial evidence to support the Commission’s finding that any heart attack suffered by the appellee on this occasion (December 1965) was an accidental injury arising out of and in the course of his employment.

After the December 1965 attack appellee was hospitalized for a period of time and did not return to work for six months, during which time he received non-occupational group insurance benefits. In June 1966 when he returned to work it appears he again sustained a heart attack after working approximately one day. He resumed his employment in December 1966 and worked intermittently until June 5, 1967, at which time he suffered another heart attack as he was pulling bags off a conveyor belt. He testified that:

I was pulling the bags off the conveyor. They have those automatic bag pullers and the hands come down and, of course, I was taking them off and putting them on the skid and when the tables run out I had to get across the belt and put them on the table and its just a strain any way you go, especially for a man who is not supposed to do those things.

This last attack disabled him to such an extent that he has not been able to engage in any gainful employment since then. With respect to this incident, there was medical evidence by appellee’s doctor that:

Q. And is it correct that any type of exertion or lifting or straining will aggravate and make worse a coronary condition?
A. Yes sir.
Q. And you had previously advised him not to do that, and this June 5th attack immediately followed his exertion on the job, I believe, according to the history you received?
A. Yes sir.
Q. And based upon that would you say that the exertion on the job aggravated and brought on the heart attack for which you began treating him on June 5, 1967?
A. It was definitely aggravated by it, as far as precipitating I can’t say.
Q. It was definitely aggravated by it?
A. Yes sir.

It may be that it could be shown that the June 1967 heart attack was a result of the aggravation of a preexisting condition and was work connected. See Olin Mathieson Chemical Co. v. White, 239 Ark. 833, 394 S. W. 2d 632 (1965); Kearby v. Yarbrough Bros., 248 Ark. 1096, 455 S. W. 2d 912 (1970); U. S. Fidelity & Guaranty Co. v. Dorman, 232 Ark. 749, 340 S. W. 2d 266 (1960). In the case at bar we observe that the Commission has not yet considered and made any finding based only upon the June 1967 incident.

Appellant next contends for reversal that the appellee “waived any claim for workmen’s compensation by filing a claim for sick and accident benefits with Metropolitan Insurance Company in which he represented that his disability was not related to his employment.” It is true that during the six-month intervals following the December 1965 and June 1967 heart attacks the appellee applied for and received benefits for non-occupational sickness and accident on a group insurance policy carried by appellant for its employees. This claim form was in three parts, one being signed by the appellee, another by the appellant, and another part by the appellee’s physician. That portion signed by the appellee, with the assistance of the employer’s representative, did not indicate whether or not it was a non-occupational sickness or accident. Furthermore, this policy was provided by appellant as a fringe benefit for its employees pursuant to a negotiated work contract. Suffice it to say that our legislature has seen fit to prevent the applicability of such a defense to a compensation claim. Ark. Stat. Ann. § 81-1320 (Repl. 1960) provides:

No agreement by an employee to waive his right to compensation shall be valid, and no contract, regulation, or device whatsoever shall operate to relieve the employer or carrier, in whole or in part, from any liability created by this act, except as specifically provided elsewhere in this act.

We agree with the appellee that appellant’s asserted defenses of waiver and estoppel are not applicable and, therefore, do not prevent compensation to the appellee.

Nor can we agree with the appellant that the June 1967 claim is barred by either the failure to give notice or by the statute of limitations. Our statute, § 81-1317(c), requires that any objection to the failure to give notice must be raised at the first hearing before the referee. As to the two-year statute of limitation, § 81-1318(c) similarly provides:

Failure to file a claim within the period prescribed in subsection (a) or (b) shall not be a bar to such right unless objection to such failure is made at the first hearing on such claim * * *.

As we view the record, appellant’s defense as to notice and the statute of limitations was not asserted at the initial hearing as to either claim and it cannot be raised for the first time on appeal.

Inasmuch as we are of the view that the first injury was not compensable, it is necessary that we reverse the judgment and remand the cause with directions that the Commission determine the degree of appellee’s compensable disability, if any, as a result of the June 1967 attack. See Davis v. Stearns-Rogers Const. Co., 248 Ark. 344, 451 S. W. 2d 469 (1970) and § 81-1313(f)(2)(ii).

Reversed and remanded.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. It is clear to me, ás I interpret the evidence in this case, that the appellee’s heart attack on June 5, 1967, occurred when he was pulling bags off a conveyor belt rather than because he was pulling bags off a conveyor belt. As I view the record, there is no substantial evidence that the appellee’s overall heart condition was any worse immediately after the attack on June 5 than it was immediately before, and certainly I find no evidence at all that the appellee’s overall disability because of his heart condition was caused or aggravated by the work he was doing on June 5, 1967.

As I interpret the evidence in this case, the appellee was simply suffering from coronary artery diseasé consisting of a narrowing of the coronary arteries going back at least as far as 1965. There was no evidence that appellee suffered a myocardial infarction that could have been attributed to insufficient blood supply under stress of exercise, as was the situation in U. S. F. G. Co. v. Dorman, 232 Ark. 749, 340 S. W. 2d 266, and there was no evidence of a coronary thrombosis which could have been attributed to exertion on the job as was the situation in Crossett Chemical Co. v. Sedberry, 232 Ark. 608, 339 S. W. 2d 426.

As I view the evidence in this case, the appellee on June 5, 1967, simply experienced angina pectoris (pain in his chest) as he had previously experienced and in all probability will continue to experience, when he takes more exercise than he should, either in or outside of gainful employment. Such was the situation in Arkansas Power & Light Co. v. Scroggins, 230 Ark. 936, 328 S. W. 2d 97. In that case the Commission very properly denied compensation and we affirmed.

It appears to me that the appellee was correct when he first filed his claim for disability under his group policy. I can find no substantial evidence that whatever liability he may now suffer was caused or aggravated by his employment.

I would reverse and dismiss.


author: Carl-eton Harris, Chief Justice.

text:
    James ARMSTRONG v. STATE of Arkansas
    5669
    475 S.W. 2d 541
    Opinion delivered January 31, 1972

      Streett & Plunkett, for appellant.

      Ray Thornton, Attorney General; John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Carl-eton Harris, Chief Justice.

Appellant, James Armstrong, was charged with first degree murder, it being asserted that he murdered Tyree Godbolt on January 2, 1971. On trial, the jury convicted Armstrong of second degree murder and fixed his punishment at 21 years confinement in the Department of Corrections. From the judgment so entered, Armstrong brings this appeal. For reversal, only one point is relied upon, viz, “The court erred in refusing to allow testimony that the deceased had made an uncommunicated threat shortly before the fatal altercation”.

Armstrong asserted that he had acted in self-defense in killing Godbolt, and three witnesses, in addition to appellant, testified that Godbolt advanced toward Armstrong with “his hand under his shirt”. J. W. Thompson testified that appellant told Godbolt to stop but Godbolt continued to advance and appellant struck him, knocking him down. According to Thompson, Godbolt got up, still with his hand under his shirt, and appellant fired a warning shot into the ceiling; that Armstrong then shot Godbolt when he was about three feet away.

Charles Watkins testified to practically the same set of facts, and in addition, stated that Godbolt had a bad reputation, and a reputation for carrying a knife. James Otis Robinson testified substantially to the same facts except that he stated that Godbolt also had a bottle in his hand. Marvin Stith also testified that Godbolt had a reputation in the community for being violent, and for carrying a knife.

The court considered the evidence on the question of self-defense to be sufficient to warrant instructions to the jury relating to that defense. Appellant offered to prove by Roy Hamilton that Godbolt, after going in the direction of his residence, came back, and had a conversation with a third person, and that Hamilton overheard Godbolt say that wherever he found James Armstrong he was going to “kick his g — d— a-”. The court would not permit this testimony, stating that the same was an uncommunicated statement; that “the killing was open and visible to many witnesses, and the proposed testimony was not the best evidence”. Appellant objected and excepted to the ruling.

We think the learned court erred in this ruling. In Decker v. State, 234 Ark. 518, 353 S. W. 2d 168, 98 ALR 2d 1, this court said:

“It is likewise true, that where the defendant relies upon self-defense, uncommunicated threats are admissible where there is doubt as to who was the aggressor, but this evidence is admissible solely for the purpose of bearing on this question. See Parsley v. State, 151 Ark. 246, 235 S. W. 797, and Bell v. State, 69 Ark. 148, 61 S. W. 918, Lee v. State supra.”

As stated, the trial court considered the evidence on self-defense sufficient to require that the jury be instructed on that defense and indeed, we think this action by the court was proper. In Decker, the evidence was not permitted, but we held that no error was committed because we found that the testimony offered by the defendant was not consistent with a plea of self-defense.

In its brief, the state argues that the proof here did not support the plea of self-defense; further, it is said that the statement allegedly made by the deceased was not a threat against appellant’s life, and would not place appellant under apprehension for his own life. We have already commented that we thought the evidence raised the issue of self-defense, and, though the word “kill” was not included in the alleged statement by Godbolt, we certainly think the evidence was admissible on the question of which man was the aggressor — and the testimony was only admissible for that purpose.

We are unable to say that exclusion of this offered evidence was not prejudicial to appellant, and accordingly, the judgment of conviction is reversed, and the cause remanded.

It is so ordered.


author: George Rose Smith, Justice.

text:
    Alfred B. HETTEL v. Bethel Lee RYE, Administrator et al
    5-5719
    475 S.W. 2d 536
    Opinion delivered January 31, 1972.

      Laws 6- Schulze, for appellant.

      Williams ér Gardner, for appellees.
   George Rose Smith, Justice.

Following a traffic accident the appellant, Alfred B. Hettel, brought this action for personal injuries against Charles M. Rye. Upon Rye’s death a few months later, the cause was revived against his administrator, one of the appellees. The other appellee, Northwestern National Insurance Company, is the plaintiff’s own insurer, whom the plaintiff brought into the case for the assertion of a cause of action under the uninsured motorist clause in the policy. Although the original cause was revived against Rye’s administrator, the plaintiff failed to file a copy of the complaint or other pleading in the probate proceeding, as the Probate Code requires. Ark. Stat. Ann. § 62-2602 (Repl. 1971); Wolfe v. Herndon, 234 Ark. 543, 353 S. W. 2d 540 (1962). This appeal is from a circuit court order dismissing the complaint both as to the administrator and as to the insurance company.

We affirm the dismissal as to the administrator. On that branch of the case the only argument made for reversal is that the plaintiff should be excused from filing a copy of the complaint in the probate court, for the reason that the same attorneys were then representing both the plaintiff and Rye’s administrator. That argument must be rejected, because it is raised for the first time on appeal. Had the contention been made in the court below it is manifestly possible that some explanation of the apparent conflict of interest would have been forthcoming.

We must, however, set aside the dismissal as to the insurance company. We are not persuaded by the company’s argument that the dismissal as to the uninsured motorist’s estate necessarily requires that the cause of action under the uninsured motorist clause also be dismissed.

The policy requires the company, within stated limits, “[t]o pay all sums which the insured. . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile because of bodily injury. . . sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured automobile.” The policy goes on to define an uninsured automobile as including a hit-and-run automobile.

The uninsured motorist clause is intended not to afford coverage to the uninsured motorist but rather to provide protection to the policyholder against the perils of injury by such a motorist. MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S. W. 2d 252 (1968). It is generally held that the policy requirement that the insured “be legally entitled to recover” from the uninsured motorist is intended only to require a showing of fault on the part of the latter. Upon that reasoning, in cases directly in point here, it has been held that the policyholder may recover against the insurer even though the statute of limitations has run in favor of the uninsured motorist, Booth v. Fireman’s Fund Ins. Co., 253 La. 521, 218 So. 2d 580 (1969); Sahloff v. Western Cas. & Surety Co., 45 Wis. 2d 60, 171 N. W. 2d 914 (1969), or even though the plaintiff has dismissed his suit against the uninsured motorist with prejudice. Reese v. Preferred Risk Mut. Ins. Co., Mo., 457 S. W. 2d 205 (1970). Moreover, that same conclusion is indicated by the policy provision that the uninsured motorist may be a hit-and-run driver; for in that situation there might never be a judgment against the uninsured motorist. It is therefore our opinion that the dismissal as to Rye’s estate does not call for a dismissal as to Northwestern National.

Affirmed in part, reversed in part.


text:
    PETIT JEAN AIR SERVICE et al v. James W. WILSON
    5-5775
    475 S.W. 2d 531
    Opinion delivered January 31, 1972

      Terral, Rawlings, Matthews if Turtle, for appellants.

      Gordon, Gordon ir Eddy, for appellee.
   George Rose Smith, Justice.

The question in this workmen’s compensation case is whether the appellee Wilson’s claim for additional compensation is barred by the statute of limitations. Such a claim must be filed within one year from the date of the last payment of compensation or within two years from the date of the injury, whichever is greater. Ark. Stat. Ann. § 81-1318 (b) (Supp. 1969). The commission held that the statute had not run, because the doctors who examined and treated the claimant did not make a final determination of the extent of his disability. Whether that omission prevented the running of the statute is the principal issue upon this appeal from a circuit court judgment affirming the commission’s decision.

The essential facts are not in dispute. The claimant was an aircraft mechanic. Two separate injuries are involved in this case, both admittedly compensable. On April 30, 1968, the claimant fell to the floor of his employer’s premises and injured his back. A claim for that injury was filed with the commission. Wilson returned to work five days later, but there is no suggestion that his injury had healed in that short time.

About two months later, on July 3, 1968, Wilson again fell to the floor when a small aluminum ladder gave way under him. In that accident Wilson suffered a broken ankle and an additional injury to his back. Another claim was filed with the commission, but neither claim form is contained in the record before us. Viewing the record most favorably to the claimant, we assume that the first claim was for a back injury and that the second claim was for injuries both to the claimant’s back and to his ankle.

It is important to state at the outset that neither claim was controverted by the employer or the insurance carrier. In such cases, as we noted in Dixie Cup Co. v. O’Neal, 240 Ark. 785, 402 S. W. 2d 417 (1966), “it is the custom for insurance companies to have a physician rate the claimant for disability, and settle the claim on that basis, though the insurance company takes this course at its own risk.”

From the date of the first accident, April 30, 1968, until the carrier’s last payment on September 22, 1969, the carrier expended a total of $5,006.86 in the payment of compensation and medical expenses. At the hearing before the referee the carrier attributed $3,686.78 of that total to the ankle injury and the remaining $1,320.08 to the back injury; but there was evidently a certain amount of overlapping, because the same doctor often examined or treated both injuries together.

We think it necessary to state only the salient events, chronologically, in the course of the claimant’s treatment. The broken ankle was promptly set, but it did not heal satisfactorily. A second operation upon the ankle was performed on January 23, 1969. Wilson later went back to work, but he was discharged by his employer, the appellant Petit Jean Air Service, on March 31, 1969.

Wilson continued to have trouble with his back and with his ankle. He was examined or treated by four doctors who were paid by the insurance carrier. At the hearing before the referee (at which limitations was the sole issue) it was shown that Wilson’s last contacts with the several doctors were as follows: Dr.. Wells dismissed Wilson as a patient on April 9, 1969, and did not see him again. Dr. Engelhoven, a chiropractor, treated Wilson for the last time on May 6, 1969. Dr. Jones, an orthopedist, examined Wilson for the last time on August 15, 1969. Dr. MacKenzie, also an orthopedist, examined Wilson for the last time on September 18, 1969. At that time he rated Wilson’s disability as 35% of the leg below the knee.

One or another of the physicians had made evaluations of disability from time to time, all of which were promptly honored by the insurer. For the back injury, compensation totaling ten weeks was paid, the last payment being on July 31, 1969. For the ankle injury, the carrier first made payment for a 10% permanent partial disability and later, on September 22, 1969, made a final lump sum payment of $1,203.13 for Dr. MacKenzie’s finding of an additional 25% permanent partial disability. Chronologically, that was the last payment of compensation in any form.

The record discloses no further contact or communication between the claimant and the insurer (or the former employer) until the present claim for additional compensation was filed on October 20, 1970 — about thirteen months after the last payment of compensation and more than two years after the date of the last injury. Thus the claim for additional compensation is apparently barred under both provisions of the statute, supra.

In seeking to avoid the bar of the statute, counsel for the claimant máke two arguments. First, it is contended, and the commission found, that the claims were never finally disposed of, because the doctors did not make a final determination of the extent of the disability resulting from either the back injury or the ankle injury. Apparently the commission viewed the claims, in those circumstances, as being. analogous to cases pending in court, as to which the statute of limitations is suspended. Rogers’ Estate v. Hardin, 201 Ark. 1, 143 S. W. 2d 544 (1940).

We cannot sustain that point of view in a case of this kind. It is true that claims had been filed with the commission, but such a filing is by no means comparable to the lodging of a formal complaint in a court of law. Court cases, almost without exception, are contested; and even those that are allowed to go by default are eventually terminated by an affirmative order of court. By contrast, hardly one compensation case in fifty is controverted. Uncontroverted claims, such as this one, make up the vast majority of all claims that are filed. Such claims are not ordinarily brought to the attention of the commission nor acted upon by it in any way whatever. The insurance carrier pays the claim to the satisfaction of all concerned, and that is the end of the matter.

This case does not appear to be out of the ordinary. Wilson, with the carrier’s knowledge and consent, consulted a total of four doctors whose fees were paid by the carrier. Whenever a doctor made a finding that compensation was due the claimant, payment was promptly made. Eventually the final lump sum settlement was made on September 22, 1969. At that point Wilson had been seen for the last time by every one of the doctors. The claims, as active cases, had simply come to an end. In fact, Wilson decided to go into the insurance business and for that purpose went to Texas, where he attended an insurance training school for several months.

There is no statutory requirement that physicians make a percentage evaluation of disability in every instance. As a practical matter that course is doubtless followed in most cases, as a means of settling the claim. We are unwilling to say, however, that the physician’s failure to make such an evaluation has the effect of holding the claim in suspension for all time to come. To adopt such a rule would mean that in many cases insurers would never know when their liability upon a particular claim was finally terminated. It is plainly the better rule to put upon the claimant the burden of filing his claim for additional compensation within the time allowed by the statute. In our opinion, that view of the matter gives effect both to the letter and to the spirit of the law.

Alternatively, the claimant argues, although the commission did not so find, that the lump sum award made on September 22, 1969, represented a payment of compensation for the next 43.75 weeks, which would put the last payment within less than a year before the filing of the claim for added compensation. It is plain, however, that the 43.75 weeks had already elapsed between the accident on July 3, 1968, and the payment on September 22, 1969. Hence the payment represented compensation already accrued rather than compensation to become due in the future. See Phillips v. Bray, 234 Ark. 190, 351 S. W. 2d 147 (1961), where we so held in a similar fact situation. Hence the settlement was not effective to extend the payment of compensation prospectively beyond the date upon which the settlement was made.

Reversed and dismissed.


author: Lyle Brown, Justice.

text:
    Jimmy CARTER v. HELENA MARINE SERVICE, INC.
    5-5721
    475 S.W. 2d 528
    Opinion delivered January 31, 1972

      Schieffler & Murray, for appellant.

      David Solomon, for appellee.
   Lyle Brown, Justice.

Appellant Jimmy Carter sued out a writ of garnishment directed to appellee, Helena Marine Service, Inc., in an effort to attach any wages in the hands of the garnishee owing one Joe Self. Although the court found that Helena Marine did not timely answer, judgment was denied on the theory that Joe Self worked as a seaman and that his wages were exempt by federal statute. The issues on appeal are whether appellant Carter was entitled to judgment on the garnishment and, if so, the amount of the judgment.

In August 1969 appellant Carter obtained judgment against Joe Self for $6,300.14. On October 18, 1969, Carter obtained a writ of garnishment directed to Helena Marine Service, alleging Helena Marine to be indebted to Self in the sum of $250. The interrogatories were served three days later. Helena Marine did not report the matter to its attorney until November 12, 1969, on which date an answer was filed, denying any indebtedness to the judgment debtor, Self. The facts we have recited are not disputed. Nor is there any question but that Helena Marine was not indebted to Self, he having quit his employment in September 1969 and having collected all his wages.

We conclude that even if appellant was entitled to judgment against appellee because of the failure to timely file an answer to the allegations and interrogatories, under Ark. Stat. Ann. § 31-512 (Repl. 1962), the recovery should be limited to $250. That is the amount of Self’s money which appellant by his pleadings alleged was in the hands of the garnishee. Wilson v. Phillips, 5 Ark. 183 (1843); Lewis v. Firestone Tire & Rubber Co., 241 Ark. 360, 407 S. W. 2d 750 (1966). We should also note that the trial court, in the instant case, said that if that court were to enter judgment it would be for $250.

We do not agree with the trial court that the appellee garnishee is protected from payment by virtue of 46 U. S. C. A. § 601. That section excludes the wages of a seaman or apprentice from attachment or arrestment from any court, except for support and maintenance of a wife and minor children. The only evidence in the record about the status of Joe Self’s position with garnishee was that he was a “seaman pilot or seaman operator.” There are a number of workers in navigable waters who do not come under the term “seaman.” For example, the master of a vessel is not a “seaman” within the terms of the statute. Blackton v. Gordon, 303 U. S. 91 (1938). Again, it has been held that the wages of a pilot are subject to garnishment. William Jackman Sons v. Hauffman, 287 N. Y. S. 177 (1935). From the evidence adduced we are unable to say that Joe Self’s endeavours as a seaman pilot or seaman operator protected his wages from garnishment. The burden was on appellee to establish the exemption. Blythe v. Jett, 52 Ark. 547, 13 S. W. 137 (1889).

Reversed and remanded for further proceedings consistent with this opinion.


text:
    Fred WILLIAMS v. STATE of Arkansas
    5671
    475 S.W. 2d 530
    Opinion delivered January 31, 1972

      Howell, Price, Howell <br Barron; By: William C. Rea, for appellant.

      Ray Thornton, Attorney General; Henry Ginger, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Fred Williams appeals from a conviction for grand larceny, he allegedly having stolen a gun from an arresting officer. He contends that the court erred in denying his motion for a directed verdict at the close of the State’s case because the evidence was not sufficient to show a specific intent to commit larceny.

Appellant was driving his truck south on Frazier Pike in Little Rock, accompanied by his wife. They became engaged in a quarrel and appellant stopped his truck in the roadway “to cool her down.’’ There was a scuffle between the parties. Officer Riggin came upon the scene, stopped, approached the truck, and advised appellant to get out. Officer Riggin testified that he removed appellant from the truck after a bit of resistance. The officer said he took appellant to the police car and radioed for assistance. He said appellant started scuffling again and, during the scuffle the two men fell in the roadway. According to the officer appellant gained possession of the weapon after both men fell to the ground; that appellant fired one shot; and that he ran to the truck with the gun in his possession and drove away. Officer Riggin radioed another policeman in the vicinity and appellant was apprehended some six blocks from the scene of the altercation. The officer’s pistol was in the seat of appellant’s truck.

The version of the incident, as testified to by appellant, differed in some respects from that of the officer. Appellant insisted that the officer fired the gun, lost control of it, and it fell to the ground. Appellant said he retrieved the gun for his own safety. He concedes that he drove away with it and intended taking it to police headquarters.

The single question before us is whether the evidence was sufficient to sustain a felonious larceny. Ark. Stat. Ann. § 41-3901 (Repl. 1964). The intent to deprive the owner of his property is an essential element of the crime. The crux of this case is the intent of appellant when he took the gun, placed it in his truck, and drove away with it in his possession. If he intended to take it to the police station then he would not be guilty of larceny. On the other hand, if he intended to keep the weapon or dispose of it by sale or otherwise, he would be guilty of larceny.

The trial judge, sitting as a jury, rejected the self-serving declaration that appellant intended to take the pistol to the police station and turn it in. The judge evidently believed that the aggressive attitude of the appellant was inconsistent with appellant’s theory that he merely took the gun to protect himself. The testimony of the officer was to the effect that he at no time reached for his pistol. “The subject (appellant) grabbed the revolver out of my holster, discharging one round, and then jumped back and pointed it at me and told me not to move.” Whereupon, according to the officer, appellant ran and got in his truck with the weapon in his hand. It was evidently the trial judge’s conclusion that appellant thought he could disappear from sight and keep the pistol, valued at $135. The attitude of mind of the officer’s assailant was of some significance. Appellant testified in effect that he was in a belligerent mood which was initiated from his wife’s pulling on him and insisting that he turn the truck around. He also said he resented the attitude with which the officer approached his truck. The intent resting in one’s mind in a case of this nature has to be gleaned from reasonable inferences to be drawn from the circumstances surrounding the case.

Appellant relies strongly on Bailey v. State, 92 Ark. 216, 122 S. W. 497 (1909). That was a case in which an officer was disarmed in an attempt to make an arrest. Appellant in that case fled and was apprehended the next day. He testified that he intended to return the pistol. As appellant here points out, that case was reversed; however, it was reversed because of the refusal of the trial court to give a proffered instruction. In fact the court said in that case that the circumstances were sufficient to warrant a conviction for larceny. The case was reversed and remanded for a new trial.

We are unable to say that there was not substantial evidence to support the charge.

Affirmed.


author: John A. Fogleman, Justice.

text:
    FORD MOTOR CREDIT COMPANY v. THE EXCHANGE BANK & TRUST COMPANY
    5-5706
    476 S.W. 2d 208
    Opinion delivered January 31, 1972
    [As amended on denial of rehearing March 6, 1972.]

      Griffin Smith, for appellant.

      Spencer if Spencer, for appellee.
   John A. Fogleman, Justice.

The sole question raised on this appeal is the sufficiency of the evidence to support a jury verdict in favor of appellee for recovery of the face amount of two drafts drawn on Ford Motor Credit Company by J J Motors, Inc., an automobile dealership doing business in El Dorado. The jury verdicts were necessarily based upon a finding against appellant on the issues of estoppel and unjust enrichment. The question was presented by motions for a directed verdict and objections to instructions of the court submitting those issues. We agree with the appellant that the evidence was not sufficient to support the verdict, or to justify the submission of the issues to the jury.

Ford Motor Credit Company entered into an agreement with J J Motors to purchase contracts on new and used cars financed by J J Motors which were acceptable to the company but was not obligated, under the agreement, to purchase any particular contract. FMCC furnished J J Motors with its forms of contracts on which credit could be advanced and form sight drafts for the use of the dealer in the sale of its contracts to FMCC, but did not require the dealer to use this form of draft. It was admitted that the president of J J Motors was instructed to make out the drafts for the amount of the respective contracts submitted for purchase in duplicate and to deposit one copy of the draft in the bank with which the dealer did business and to mail a copy of each such draft to appellant with the contract attached.

The dealer had an account in the Exchange Bank and Trust Company at El Dorado. When the first such draft was brought to this bank by the dealer in the latter part of 1966, the bank was asked to give immediate credit to the dealer’s bank account. At that time Bob Tinkle was vice-president and cashier of appellee. He continued in that capacity through January 1968, but had no connection with the bank at time of trial. He testified that before appellee agreed to give immediate credit for the amount of any draft, he called appellant’s branch office in Monroe, through which the dealer’s contracts were handled, and talked to the branch manager. Tinkle advised appellant’s manager that the dealer wanted immediate credit on these drafts, and asked what appellant normally did in the course of the business, how it paid these drafts, whether it wanted appellee to send the drafts for special collection or whether appellant paid them through the normal course of business. According to Tinkle, the branch manager told him that the normal, accepted practice was for the dealer to draw his drafts, deposit them in the bank and when appellant received the contracts from the dealer, the draft would be paid at appellant’s bank in Monroe, if the contracts were in order.

Appellee then accepted the drafts presented for immediate payment on that occasion and continued the practice until the date of the drafts in question here solely upon the basis of this conversation. Appellee’s claim of estoppel is based entirely upon this conversation, and the ensuing course of dealing among the parties. It appears from the testimony that appellant never failed to accept any draft presented to it in this manner, and that there was never any occasion, prior to the presentation of the drafts involved in this case, where appellant accepted any contract of the dealer without also accepting the draft.

Following the usual practice, J J Motors drew drafts for $2,563.14 on one contract and for $1,664.42 on another on March 3, 1969. They were treated by appellee as cash and deposited to the account of the dealer on the same date. The dealer’s account was then overdrawn, partially by reason of the payment by appellee of certain checks drawn on the account by the dealer payable to the order of appellant. After crediting the amount of these drafts to the account of J J Motors, appellee issued its checks for $1,943.63 and $788 to appellant to cover two additional checks of the dealer payable to appellant which had been presented to appellee for payment and charged them to the dealer’s account. The drafts were presented in due course to appellant through its bank in Monroe, the Ouachita National Bank. The dealer had, pursuant to appellant’s instructions, forwarded the respective contracts for which these drafts were drawn to FMCC at Monroe, with copies of the drafts. In spite of appellant’s knowledge that the contracts were submitted for purchase only, it accepted and retained the two contracts, but refused acceptance of the drafts which were returned to appellee bearing the typed notation: “Drafted in error, FMCC.” When the drafts were returned to appellee, the dealer had declared bankruptcy.

It is undisputed that, at the time of the drawing and presentation of these drafts, both parties were aware of the dealer’s precarious financial condition. It is also admitted that the contracts submitted qualified for acceptance by appellant under the terms of its agreement with the dealer. Appellant’s branch manager at the time the drafts were presented explained that the reason for not accepting the drafts was that appellant already had a security interest in both of the vehicles covered by £he contracts, one of which was floor-planned and the other subject to an outstanding contract held by appellant. He stated that appellant had conducted an inventory on March 7, and found that the dealer had sold some $25,000 worth of items out of trust for which he could not pay appellant, and that this fact entered into its failure to accept the drafts and its determination to retain the contracts as proceeds of sale of collateral securing an indebtedness to FMCC far in excess of the amount of the drafts. The instruments evidencing the security interests of appellant in the particular vehicles were introduced without objection. There was no other evidence relating to the contracts submitted to appellant or the reasons for its failure to accept the drafts.

The chairman of the board and chief executive officer of appellee, a banker with 50 years’ experience, testified that he would have accepted these two drafts under the circumstances if he had been cashier of the bank and that their acceptance for immediate credit, under those circumstances, was in keeping with good banking practice. He stated that the bank took a chance every time it handled a draft as a cash item and that doing so was a matter of good business judgment and the accommodation of its customers. He admitted that appellee could have given both appellant and itself absolute protection, if it had accepted the drafts for collection or if it had demanded that the contracts accompany the draft. He felt that his bank’s action in the matter was based upon an assurance that appellant would pay all such drafts.

There was no specific evidence that any draft had previously been drawn on appellant based upon a contract covering a vehicle on which appellant already had a security interest so that the contract actually represented the proceeds of sale of its collateral, or that the dealer had previously failed to account for the sale of any automobile out of trust.

Appellant relied upon Ark. Stat. Ann. §§ 85-3-409, 410 (Add. 1961), and contended that until there was a written acceptance of the draft, there was no liability on its part. Appellee, on the other hand, contended that the exception in § 85-3-409(2) provided that nothing in that section should affect any liability in contract, tort or otherwise arising from any letter of credit or other obligation or representation which did not consititute an acceptance, and that under the doctrine of estoppel there was such an obligation. Specific reliance is placed on the committee comment on the above subsection, in which it is stated that the intention of this subsection was to make it clear that the section did not affect any liability arising apart from the instrument itself and that a drawee might be liable in tort or upon any other basis because of this representation that he has accepted, or that he intends to accept. Thus, says appellee, estoppel prevents appellant from availing itself of this defense.

Ever since our decision in Arkansas National Bank v. Boles, 97 Ark. 43, 133 S. W. 195, we have been committed to the doctrine that, since estoppel bars the truth to the contrary, the party setting it up must prove it strictly, that there must be certainty to every intent, that the facts constituting it must not be taken by argument or inference and that nothing can be supplied by intendment. See, James Talcott, Inc. v. Associates Discount Corp. 302 F. 2d 443 (8th Cir. 1962); McFaddin v. Bell, 168 Ark. 826, 272 S. W. 62.

When we apply this rule to this case, we cannot say that the statement of appellant’s branch manager, relied on here, was sufficiently definite to furnish a basis for an estoppel. It is not disputed that this manager told Tinkle that the dealer’s drafts would be paid if the contracts received from him were in order. It certainly cannot be said that this statement could not properly be taken to mean that appellant had the right to do exactly what it did, i. e., refuse payment of drafts presented after the dealer had failed to account for the proceeds of sales of other automobiles out of trust, when those drafts covered the proceeds of sale of other collateral. As a result it could be said that the contracts were not in order. This being the case, we cannot say that there was sufficient certainty to permit the raising of an estoppel. On the other hand, in order to reach the result for which appellee contends, the obligation to pay if the contracts were properly executed would have to be supplied by argument,. inference and intendment. Certainly it cannot be said that a statement that appellant would pay drafts if the “contracts were in order” made more than two years earlier should be taken to mean that appellant could never refuse a draft just because the supporting contract was properly signed, after it was on notice that steps to protect its own collateral were necessary. It can be forcefully argued, as appellant does, that whatever answer its branch manager gave to the inquiry by the bank’s Vice President and Cashier was not intended to amount to anything more than a description of the normal routine followed in the presentation and payment of dealer’s drafts.

This is not a case calling for application of the doctrine of unjust enrichment. In Whitley v. Irwin, 250 Ark. 543 (1971), 465 S. W. 2d 906, we held that one is not unjustly enriched by receipt of that to which he is legally entitled and that no recovery can be based upon unjust enrichment when the recipient can show a legal or equitable ground for keeping it. It cannot be seriously doubted that appellant had a legal right to the proceeds of the sale of collateral by its debtor, and, in the absence of estoppel, it certainly had an equitable ground for keeping these proceeds. It also had a clear legal right to the proceeds of the checks of j J Motors voluntarily paid by appellee.

Since we find no fact issue as to either estoppel or unjust enrichment, the judgment is reversed and the cause dismissed.


text:
    Charles Edgar LEASURE v. STATE of Arkansas
    5673
    475 S.W. 2d 535
    Opinion delivered January 31, 1972

      Thomas C. Pitts, for appellant.

      Ray Thornton, Attorney General; Henry Ginger, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was convicted of the crime of rape consisting of sexual intercourse with a female under the age of 11 years. The case was tried before the circuit judge without a jury by agreement of the parties. Appellant contends that the judgment was based upon findings of the circuit judge contrary to the law and the evidence. He argues that the judgment is vulnerable to this attack because there was not sufficient evidence to support the court’s findings that appellant was legally sane and responsible for his acts and that his confession was admissible in evidence. Appellant contends that there was no evidence to show that a rape was actually committed, in the absence of his confession, which he says was involuntary, solely on the basis of his mental condition at the time. We find the evidence sufficient to support the finding of guilt.

Dr. Robert L. Sherman testified that he examined the alleged victim, then seven years of age, on October 15, 1970. He found a lacerated, but healing, hymenal ring with evidence of trauma. He said that the child was not virginal and that the vagina had been dilated either by a penis or some instrument. It was his opinion that the entry into the vagina had been within the preceding two weeks. Appellant’s confession disclosed attempted sexual relations with her on October 2, 1970, discontinued when she screamed, and an actual penetration on October 12. The testimony of the doctor was substantial evidence that a seven-year-old girl had been raped. Appellant’s confession connects him with the crime. No further evidence is necessary to constitute substantial evidence in support of the jury verdict, unless the confession was inadmissible or unless appellant must be said to be insane as a matter of law. Mosley v. State, 246 Ark. 358, 438 S. W. 2d 311; Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653. If the testimony on this subject may be said to be conflicting, then the question is one of fact to be determined by the trier of facts. Campbell v. State, 216 Ark. 878, 228 S. W. 2d 470.

About 30 days after the offense was alleged to have occurred, appellant was committed to the Arkansas State Hospital for mental examination. The report of this examination was introduced in evidence without objection. Appellant was also examined by Dr. Joe H. Dorzab of Fort Smith and Dr. Stephen B. Finch of Fayetteville. The reports of these physicians were also received in evidence without objection.

We find substantial evidence that appellant was sane at the time of the alleged offense and at the time his confession was given. The report of the state hospital staff made on the 22nd day of December, 1970, expresses the opinion that appellant was not mentally ill to the degree of irresponsibility, either at the time of the alleged crime or at the time of the report. They found no intellectual deficit which would cast doubt upon his competency or self-responsibility, and no evidence of thought disorganization, affective illness, mental deficiency or organic brain syndrome. They specifically found that appellant knew right from wrong and had the ability to adhere to the right. They did find his responses to tests typical of an alcoholic or other personality disorder characterized by emotional instability, immaturity and feelings of inadequacy. They also found that his memory was good except for blackouts attributable to excessively heavy drinking.

Dr. Finch’s report indicated a finding that appellant had inadequate personality, a chronic brain syndrome secondary to use of alcohol and drugs, and severe psychoneurotic or psychotic depressive reaction, with possible suicidal tendencies. He recommended intensive care in an inpatient institution for depression and withholding of alcohol and drugs. Dr. Dorzab found appellant seriously depressed with suicidal thought but without evidence of psychosis. He considered appellant to be of average intellect, but expressed the opinion that he might be suffering from a primary affective disorder with secondary alcoholism and drug abuse. He also found evidence of personality disorganization with underlying paranoid schizophrenia. His diagnosis included ppssible chronic brain syndrome, secondary to use of alcohol and drugs, and severe psychoneurotic or psychotic depressive reaction. He recommended intensive care in an inpatient institution and the withholding of alcohol and drugs.

It appears to us that the evidence clearly preponderated in favor of the court’s findings. Certainly it was substantial enough to support the rulings on admissibility of the confession and appellant’s conviction.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Jesse SHELTON v. STATE of Arkansas
    5648
    475 S.W. 2d 538
    Opinion delivered January 31, 1972

      James K. Young, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. ,Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Jesse Shelton was found guilty of first degree rape at a jury trial in the Pope County Circuit Court and was sentenced to imprisonment for life. On appeal to this court he relies on the following points for reversal:

“The court erred in its refusal to release the jury for the reason that they had never been sworn to answer questions touching their qualifications on voir dire.
The court erred in refusing to discharge the jury for the reason that four jurors, who were seated, were never impaneled, nor their qualifications investigated by the judge.
The court erred in permitting the state to introduce an alleged oral confession when the same was purportedly made in violation of the constitutional rights of the appellant.
The court erred in failure to give the requested instruction on assault with intent to rape.”

It could serve no useful purpose to set out and discuss the evidence in detail. The prosecutrix, when testifying at the trial, positively identified the appellant as her assailant and her testimony and that of her examining physician were amply sufficient to sustain a conviction for rape (McDonald v. State, 160 Ark. 185, 254 S. W. 549; Smith v. State, 160 Ark. 178, 254 S. W. 463). We conclude, therefore, that the trial court did not err in refusing to give appellant’s requested instruction on assault with intent to rape. We regret, however, that we must reverse for other error which could have so easily been avoided.

As to the appellant’s first two points, the record is not clear as to the procedure followed in making up the jury in this case. The record is further complicated by the apparent fact that two separate trial judges participated in forming the jury and the record simply does not reveal what oaths were administered in connection with the formation of the jury. The Honorable Russell C. Roberts is the regularly elected circuit judge in Pope County and the Honorable William J. Kirby is the regularly elected circuit judge in Pulaski County. Apparently Judge Kirby was sitting on exchange with Judge Roberts when the petit jury panel from which the jury was selected to try this case was made up in Pope County some weeks prior to the trial of this case. The record is void as to what action was taken by Judge Kirby except the circuit clerk of Pope County did testify that Judge Kirby “swore the jury.” The clerk testified that Judge Kirby “swore all that was present,” but that he does not know whether all the veniremen were present or not. The jury before whom the appellant was tried was not sworn on voir dire and the appellant directs his first point to this assigned error. Four of the jurors before whom the appellant was tried indicated by a raise of their hands, that they were not present when Judge Kirby swore in the panel. It is to these four jurors that the appellant’s second assignment is directed. Since we must reverse because of the error assigned under the appellant’s third point, we do not determine whether the appellant waived the oath of the jury on voir dire as was done in Smith v. State, supra, or waived the alleged improper empaneling of the four unnamed jurors by failure to exercise peremptory challenges, as these alleged errors are not likely to arise again on retrial.

As to appellant’s third point, the state offered in evidence through the testimony of Mr. Deloin Cossey of the state police, an oral confession made by the appellant to Mr. Cossey. A separate hearing was held outside the presence of the jury to determine the voluntariness and admissibility of appellant’s confession. After hearing the testimony, the trial court did not make a specific finding that the confession was voluntary but did hold that it was admissible in evidence, so we conclude that the trial court did find the confession to have been voluntarily made, otherwise he would not have held it admissible in evidence.

Mr. Cossey testified that he advised the appellant of his constitutional rights, including his right to an attorney. He testified that when he had finished advising the appellant of his constitutional rights and before the appellant told him anything, the appellant specifically requested to see “Doc” Irwin. He says that he advised the appellant that “Doc” Irwin was the deputy prosecuting attorney, but that the appellant insisted on seeing him anyway. He testified that Mr. Irwin came over and talked with the appellant, after which the appellant made the incriminating statement offered in evidence.

Mr. Bill Abernathy, sheriff of Pope County, also testified that the appellant requested permission to talk with the deputy prosecuting attorney and that after doing so the appellant made the statement offered in evidence. Mr. Cossey and the sheriff deny that they offered any inducement to the appellant in exchange for a statement, and they deny that they heard anyone else make such offer. Both of these officers testified, however, that they did not hear the conversation between the appellant and Mr. Irwin immediately before the appellant made the incriminating statement offered in evidence.

The appellant testified that when he was being questioned as to his whereabouts on the dates involved, he requested that an attorney be present. He says that the officers advised him that they would call “Doc” Irwin who had represented him in a divorce matter (and who was also the assistant prosecuting attorney). On cross-examination the appellant testified in part as follows:

“Q. Jesse, did I understand that you asked for á lawyer?
A. Yes, sir.
Q. Who did you ask for?
A. I told the sheriff — not the sheriff but Mr. Cossey.
Q. Did you tell him who you wanted to see?
A. No. I said I wanted an attorney present.
Q. You told them you wanted to see a lawyer?
A. Yes.
Q. Who was present?
A. Mr. Cossey is the only one I can think of.
Q. Just you and Cossey?
A. Yes.
Q. He told you—
A. I told him I would remain silent, but they kept on, which I was silent a while, and they kept—
Q. Who promised yoü anything?
A. They did, the sheriff and Mr. Irwin said they would try to help me all they could.
Q. Did they promise you anything other than that?
A. No, sir.
Q. Did they tell you they would get you a lawyer if you wanted one?
A. No, sir.
Q. They didn’t tell you that?
A. No, sir.”

Near the conclusion of the in-chambers hearing the following colloquy between the prosecuting attorney and the appellant’s attorney occurred:

“MR. YOUNG: Judge, we have some cases here that say if a promise is made, however slight—
MR. STREETT: You have a conflict here. Mr. Shelton says there was. The officers say there was not.
MR. YOUNG: No question about an attorney. They agree about that.
MR. STREET: He was furnished one.
MR. YOUNG: He was furnished the deputy prosecuting attorney. A confession is not admissible when the defendant was denied the right to get an attorney.”

In summarization, the State’s witnesses say that the appellant specifically asked to talk with “Doc” Irwin; that they advised him “Doc” Irwin was the assistant prosecuting attorney and that he still insisted that he wanted to talk with “Doc” Irwin. The appellant testified that he simply requested the assistance of an attorney and that he was furnished the deputy prosecuting attorney who had represénted him in a divorce case. He denies that he specifically asked to talk to “Doc” Irwin. It is agreed that the appellant did talk with “Doc” Irwin before he made his confession to Mr. Cossey and that after talking with Mr. Irwin he did make the statement which was offered in evidence. The appellant testified that the sheriff and “Doc” Irwin promised that they would try to help him all they could, as an inducement in obtaining a statement from him. Both Mr. Cossey and the sheriff deny that they made any promises to the appellant and they deny that they heard anyone else make any promises to him. They testified, however, that they did not hear the discussion between the appellant and Mr. Irwin, but that immediately after the appellant talked with Mr. Irwin he did make the statement offered in evidence. Mr. Irwin represented the state in the prosecution of the appellant at his trial but Mr. Irwin did not testify as to whether he did or did not make promises to the appellant as an inducement to obtaining a confession from him. So as the record now stands, the appellant’s testimony is uncontradicted that the assistant prosecuting attorney agreed to try to help the appellant all that he could in exchange for the statement offered in evidence. Under these circumstances we hold that the trial court erred in holding the statement voluntarily made and admissible in evidence.

As far back as 1887 in Corley v. State, 50 Ark. 305, the defendant was told by the prosecuting attorney that if he would tell the whole truth, the state would deal fairly with him. Following this, and similar suggestions from members of the grand jury, the defendant was convicted on evidence tainted by his confession. In reversing the conviction, we said:

“The rule is established in this state, in accord with the unvarying current of authority elsewhere, that a confession of guilt, to be admissible, must be free from the taint of official inducement, proceeding either ‘from the flattery of hope or the torture of fear.’ Austin v. State, 14 Ark. 555.”

Certainly the current of authority elsewhere is still in accord with the established rule stated in Corley, so we conclude that the judgment of the trial court múst be reversed and this cause remanded for a new trial.

Reversed and remanded.


text:
    Cornelius TILLMAN v. STATE of Arkansas
    5676
    475 S.W. 2d 529
    Opinion delivered January 31, 1972

      Louis W. Rosteck, for appellant.

      Ray Thornton, Attorney General; Henry Ginger, Deputy A tty. Gen., for appellee.
   Conley Byrd, Justice.

Under Ark. Stat. Ann. § 43-1922 (Repl. 1964) a defendant put to trial upon an offense punishable by either death or life imprisonment is entitled to 12 peremptory challenges. Appellant Cornelius Tillman was put to trial upon a charge of first degree rape. After he had used up eight peremptory challenges, the trial court ruled that, because the State had waived the death penalty, appellant had exhausted his peremptory challenges. This was error.

Reversed.