author: Frank Holt, Justice.

text:
    Darrell RIDDELL and Harold McGRAW v. Naomi LITTLE, administratrix of the estate of Sam LITTLE, deceased
    5-6050
    488 S.W. 2d 34
    Opinion delivered December 18, 1972

      Daggett ir Daggett, for McGraw; Sharpe ir Long, for Riddell.

      Butler & Hicky, for appellee.
   Frank Holt, Justice.

This appeal results from a wrongful death verdict of $90,000 which the jury awarded against both appellants as joint tortfeasors. The facts are much the same as were detailed when this case was previously before us in Little, Adm’x. v. McGraw, 250 Ark. 766, 467 S.W.2d 163 (1971). In that case we reversed a summary judgment in favor of Harold McGraw and remanded the cause for retrial as to him on the sole question of whether McGraw used reasonable care in the selection of Darrell Riddell as an independent contractor.

The case was tried upon appellee’s allegations that the appellant Riddell was piloting the airplane at “too low an altitude under the circumstances and conditions then existing and immediately prior to and at the time of the collision,” which fatally injured appellee’s decedent; also, that appellant Riddell “failed to keep a proper lookout for Sam Little, the deceased, under the circumstances then existing immediately prior to and at the time of the collision;” also, it was alleged that McGraw knew and should have known that Riddell was incompetent to do the job for which he was employed because reasonable care was not used in the selection of the independent contractor, Riddell.

Appellant McGraw, a farmer, was the employer of appellee’s decedent, Sam Little. McGraw arranged for the appellant Riddell, a pilot, to spray his rice field. In their telephone conversation, McGraw asked Riddell only if he was qualified to spread 2,4-D, a chemical, which requires a special license and approval by the State Plant Board. McGraw was told by Riddell that he was so qualified which later proved to be untrue. McGraw was of the belief that being qualified to spread 2,4-D encompassed spraying all chemicals. Riddell testified that McGraw did not ask him about his license as a crop duster. Riddell held only a student pilot’s license and not a commercial license which is required for crop-dusting. Riddell landed his plane near the rice field which was to be sprayed and McGraw assisted him in mixing and loading a chemical. McGraw then proceeded to station his employee, Little, and another employee, Moore, at opposite ends of the field to be sprayed. He instructed each of them as flagmen that when the plane turned at the end of the field and started back, he should step aside 12 to 14 steps and take a new position to guide the plane on its next passage over the field. Following these instructions to the flagmen, Riddell began spraying the field with a chemical. After several low passes across the field, Riddell flew the plane so near the ground its landing gear struck and fatally injured the flagman Little. The jury apportioned the total negligence in the ratio of 70% against the pilot, Riddell; 20% against the deceased flagman; and 10% against the farmer, McGraw. After deducting the deceased’s portion for his negligence, a judgment was rendered for $72,000 against the appellants jointly and severally.

For reversal appellant McGraw first contends that the court erred in rendering judgment against him because the negligence attributed to him by the jury was only 1/2 that attributed to Little. Appellant makes the argument that because the jury found his negligence is actually less than Little’s there could be no recovery from McGraw. Appellant cites Ark. Stat. Ann. § 27-1730.1 (1962 Repl.), our comparative negligence statute, to support his position that a plaintiff can only recover when his negligence "is of less degree than the negligence of any person, firm, or corporation causing such damage.” Therefore, since the decedent’s negligence was greater and not less than McGraw’s, recovery is barred. Appellant recognizes that this statute was construed by us in Walton v. Tull, 234 Ark. 882, 356 S.W.2d 20 (1962) on this very issue. There we said:

"We realize that where some of the tortfeasors are insolvent or unavailable our conclusion may require a single defendant to pay the entire judgment, even though his negligence was comparatively slight.”

We observed that the basic purpose of § 27-1730.1 is to distribute the total damages among those who cause them. Furthermore, the legislature did not mean to go any farther than to deny recovery to a plaintiff only when his negligence was at least 50% of the cause of the alleged injuries or damages. In other words, if the plaintiff’s negligence is less than 50% of all the co-defendants, he is entitled to recover from each or all of them as joint tortfeasors even though the plaintiff’s negligence equals or exceeds that of a particular co-defendant. We adhere to our interpretation of the statute as to the legislative intent. We observe that the several intervening sessions of the legislature have not deemed it necessary to amend the statute to correct the asserted misinterpretation of our comparative negligence statute.

The appellant McGraw next asserts for reversal there is not sufficient evidence of negligence on his part to justify submission of the case against him to the jury. Upon the first appeal we held that “the proof made a question of fact for a jury” as to whether McGraw failed to use ordinary care to select a competent independent contractor to perform the spraying of his rice field. The evidence considered by us on the first appeal on the summary judgment proceeding was reproduced at the retrial and, therefore, our holding on this issue has now become the law of the case. Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971), St. Louis S.W. Railway Co. v. Jackson, 246 Ark. 268, 438 S.W.2d 41 (1969), Moore, Adm’x. v. Robertson, 244 Ark. 837, 427 S.W.2d 796 (1968).

Appellant McGraw next asserts for reversal that the court erred in refusing to permit examination of appellant Riddell as to the custom among farmers making inquiry as to the sufficiency of licenses of crop-dusting pilots. On examination Riddell was asked by McGraw’s counsel if any farmers ever inquired if he were properly licensed. The court sustained an objection to this inquiry. The appellant asserts that since the sole issue with respect to McGraw’s negligence is whether he used ordinary care in the selection of Riddell as an independent contractor, McGraw would be entitled to establish that the custom in the crop-dusting trade is that farmers never make inquiry relating to whether a pilot is properly licensed; also, McGraw should be entitled to show “that such an inquiry is either routine or unnecessary.” In other words, since the evidence that McGraw failed to make inquiry as to Riddell’s being properly licensed as a crop-dusting pilot is being permitted for the jury’s consideration as to McGraw’s asserted negligence, then McGraw should be entitled to introduce evidence that it was not the custom nor usage in the crop-dusting trade for the farmer to make such an inquiry. We must agree with appellee that the trial court was correct in sustaining the objection. The question propounded to Riddell, the pilot, specifically and only inquired as to whether other farmers had asked him if he was properly licensed rather than asking him or a competent witness as to what custom existed in the crop-dusting trade with respect to farmers usually asking the crop-dusting pilot if he is properly licensed. Neither did the appellant make a proffer of proof as to what Riddell or any other witness would have answered in response to an inquiry as to the custom or usage in the crop-dusting trade. In Wallace v. Riales, 218 Ark. 70, 234 S.W.2d 199 (1950), we said that “[W]e have repeatedly held that an objection to the exclusion of testimony cannot be considered on appeal in the absence of a showing of what the testimony would have been.” Also, it appears that Riddell’s (22 years of age at the time of the accident) personal experience was very limited in the crop-dusting business.

Appellants McGraw and Riddell both contend that the court erred in giving instruction No. 16 involving the lookout statute. We think the appellants are correct. The pertinent part reads:

“(a) (First) It is the duty of the pilot of an aircraft to keep a lookout for other aircraft, vehicles or persons in the air or on the ground. The lookout required is that which a reasonably careful pilot would keep under circumstances similar to those shown by the evidence in this case. **** A failure to meet the standard of conduct required by these rules is negligence.”

Although there is ample substantial evidence, as we will discuss later, to support appellee’s allegation that the crop-dusting pilot was negligent in flying too low, we think the evidence is deficient that Riddell, as a crop-dusting pilot, failed to maintain a proper lookout as alleged in the complaint. To the contrary, it appears that the lookout maintained by Riddell was all that a reasonably careful pilot would or could observe in crop-dusting. He testified that he was looking at the ground and the border levee (where Little was standing) and out both sides of the plane and in all directions during this particular pass toward the flagman when the accident occurred. This testimony is uncontradicted. Another crop duster, who was experienced in the trade, testified as did Riddell that when a plane is flying at the low altitude which is necessary for crop-dusting purposes, a “blind spot” exists which obscures the pilot’s vision in front of the plane. It appears that the flagman Little came within this “blind spot” at a distance of approximately 150 to 200 yards as the plane approached him. The plane was flying at approximately 95 m.p.h. and at an altitude of 3 to 6 feet. There is no evidence that a crop-dusting pilot would have been able to maintain any better lookout than did Riddell once the “blind spot” position existed. The more experienced crop duster testified it was his opinion that it would be impossible for the pilot to see the flagman, Little, once the pilot committed himself to flying under the wire. Obviously, from the very nature of crop-dusting, the flagmen inevitably came within the “blind spot” and cannot be seen by the pilot as the plane approaches at the necessary low altitude and flies above them.

We recognize that a pilot is liable for damages in accordance with the rules and law applicable to torts which occur on land. Ark. Stat. Ann. § 74-110 (1957 Repl.). However, we have held that it is error to submit to the jury the question of whether a proper lookout had been maintained when the only testimony on this issue is to the effect that it was kept. C.R.I. & P.R.R. Co. v. Hughes, 250 Ark. 526, 467 S.W.2d 150 (1971), Mo. Pac. Rd. Co., Thompson, Trustee v. Severe, 202 Ark. 277, 159 S.W.2d 42 (1941), St. Louis-San Francisco Railway Co. v. Spencer, 231 Ark. 221, 328 S.W.2d 858 (1959), St. Louis San Francisco Railway Co., Thompson, Trustee v. Thurman, 213 Ark. 840, 213 S.W.2d 362 (1948). In Ft. Smith L. & T. Co. v. Hendrickson, 126 Ark. 377, 189 S.W. 1064 (1916), we held that instructions were not faulty which dealt only with “the failure of the motorman to hear the approaching fire wagon. In short, it was not necessary to submit to the jury the question of whether he could have seen the fire wagon, for it was the contention of appellant that he could not have seen it and the testimony on this point is undisputed.” Further, an instruction on negligence should not be given where the alleged negligent act or acts “were not the proximate or contributing cause of the injury.” Blanton v. Mo. Pac. Rd. Co., 182 Ark. 543, 31 S.W.2d 947 (1930). Or stated differently, the injury must result from “the natural and probable consequences” of the asserted negligence. Meeks v. Graysonia, N. & A. Rd. Co., 168 Ark. 966, 272 S.W. 360 (1925). See, also, 13 Blashfield Automobile Law and Practice, § 463.3, p. 574, 3rd Edition (1969), to the effect that instructions should be based on the evidence in the case, and instructions stating only abstract legal propositions or submitting matters on which there is no evidence should not be given. In the case at bar, in our view, there is no testimony which contradicts that a proper and efficient lookout was being maintained by the pilot. Therefore, the instruction being abstract erroneously presented an issue for the jury’s consideration.

Appellant Riddell contends that the court erred in overruling his motion for a directed verdict and Riddell and McGraw both contend that there is no competent substantial evidence that Riddell was guilty of any negligence which was the proximate cause of Little’s death. We disagree with these contentions. Evidence was adduced that on the particular pass when Little was fatally struck Riddell flew under a highline wire for the first time and approached Little at an altitude from 3 to 6 feet. According to the other flagman, Riddell flew at a lower altitude than he had previously as he approached Little, who was in a squatting position. Also, Riddell had noticed that on previous passes Little had not moved aside as instructed. He didn’t bother to land his plane and warn the decedent because he was in a hurry to complete the crop-dusting operation inasmuch as it was getting dark. It is admitted that Riddell had only a student pilot’s license and did not have the proper pilot’s license as required by Ark. Stat. Ann. § 74-105 (1957 Repl.). Further as to his experience, Riddell testified that he had only logged a total of 175 hours flying time; approximately 30 hours of this in the single engine crop-dusting plane which he was flying at the time of the accident; only 2 hours was ever actually spent in spraying chemicals; and he had only flown this plane spraying agricultural chemicals on one job before accepting his contract with McGraw during which the flagman, Little, was fatally injured. In the circumstances, we are of the view that the evidence was amply substantial to submit to the jury the issue of Riddell’s negligence and, also, whether his negligence was a proximate cause of Little’s death.

Both appellants next contend that the trial court erred in refusing to strike from the appellee’s complaint her allegation that Riddell was negligent in that he was flying too low. As previously stated, we hold there was ample substantial evidence adduced that Riddell was flying too low as alleged in the complaint. Therefore, it necessarily follows we find no merit in this contention. Furthermore, it does not appear that the trial court ever made any ruling on appellants’ motion to strike this allegation and it appears that the issue was abandoned. The issue is not properly before us on appeal.

Finally, the appellants assert that the trial court erred in giving instruction No. 12, section 1. This instruction was drafted according to AMI 601 and the provisions in Ark. Stat. Ann. § 74-105 (1957 Repl.). The instruction reads:

“There were in force in the State of Arkansas at the time of the occurrence statutes which provided:
“(1) The public safety requiring advantages of the uniform regulation make it desirable, in the interest of aeronautical progress, that any person engaging within this State in navigating or operating aircraft in any form of navigation shall have the qualifications necessary for obtaining and holding a license issued by the Department of Commerce of the United States, it shall be unlawful for any person to operate or navigate any aircraft in this State, unless such person is the holder of an appropriate effective license or permit issued by the United States Government.”

The instruction added:

“A violation of one or more of these Arkansas Statutes, although not necessarily negligence, is evidence of negligence tp be considered by you along with all of the other facts and circumstances in the case.”

The failure to possess a proper license required by ordinance or statute does not make a submissible issue for the jury unless there is a causal connection between the violation of the ordinance or statute and the alleged injury. Byrne v. Matczak, 254 F.2d 525 (3d Cir. 1958), Hunton v. California Portland Cement Co., 123 P.2d 947 (Cal. 1942), Wood v. Snyder, 83 Ind. App. 31, 147 N.E.314, Miller v. Jones, 270 S.W.2d 303 (Tex. Ct. App. 1954), American Automobile Ins. Co. v. Struwe, 218 S.W. 534 (Tex. Ct. App. 1920). See Annot. 29 ALR 2d 963 (1953). It is undisputed that Riddell was not properly licensed for crop-dusting. There is no doubt that evidence as to licensing requirements and the pilot’s not having been properly licensed was admissible because of its relevance to the question of the pilot’s competence and skill and to the farmer’s negligence. Even so, this fact alone is insufficient to justify giving the instruction. The record is void of any evidence linking the statutory violation with the fatal accident. The evidence of causation had to do with the manner in which the plane was operated by the pilot and his disregard of the flagman’s failure to carry out instructions. Certainly it has not been shown that the violation was a proximate or efficient cause of Little’s death. In these circumstances, we must condemn the instruction inasmuch as it states only an abstract legal proposition. CRT. v. Dunn, 248 Ark. 197, 451 S.W.2d 215 (1970), Meeks v. Graysonia, N. & A. Rd. Co., supra.

For the errors indicated, the judgment is reversed and the cause remanded.

Reversed and remanded.

Byrd, J., concurs in the result.


source: Caselaw Access Project

author:
Frank Holt, Justice.
      John A. Fogleman, Justice,

license: Public Domain

text:
    GILLISON DISCOUNT BUILDING MATERIALS, Inc. and E. C. BARTON & COMPANY, d/b/a LAKE VILLAGE LUMBER CO. v. Allen G. TALBOT and Catherine TALBOT
    5-6081
    488 S.W. 2d 317
    Opinion delivered December 18, 1972

      David F. Gillison Jr., for appellants.

      W. H. Drew, for appellees.
   Frank Holt, Justice.

This is an action to foreclose appellants’ asserted materialmen’s liens against the residence owned by appellee Allen G. Talbot. Appellee Catherine Talbot is his wife. Both appellants alleged they sold building materials to a man named Scarborough and the materials were delivered and used in the remodeling and repair of Talbot’s house which was occupied by the appellees. Upon completion of appellants’ evidence, the appellees filed a written demurrer to appellants’ evidence (Ark. Stat. Ann. § 27-1729 [1962 Repl.]) which was sustained by the chancellor. On appeal it is appellants’ contention for reversal that they established a prima facie case as to their asserted materialmen’s liens and, therefore, the chancellor erred in sustaining appellees’ demurrer to the evidence. The appellees strenuously respond that ‘‘[T]he entire record in this cause is void of any evidence of any contract with the owner of the property on which the lien is asserted.” Also, “[A]t best, the appellants attempted to show an inference that Scarborough may have been a contractor by the mere fact that he was working on the Talbot residence.” We are of the view the appellants are correct.

Evidence was adduced that the appellant Gillison Discount, during the months of July, August and September of 1970, sold to Bill Scarborough certain building materials which were delivered to and used in the Talbot house. Tickets were marked “Talbot job.” Scarborough said he would pay for the material when Talbot paid him. Scarborough wrote “Talbot job” on purchase tickets. Some of the material was picked up by Scarborough and his employees. Invoices totaling $1,038.71 identifying the materials allegedly delivered and used in the Talbot job were introduced into evidence. One of appellant’s employees, who delivered material to the house on several occasions, observed the remodeling and testified of Scarborough’s presence during some of the deliveries. An electrician bought supplies from appellant Gillison and charged them to Scarborough, as directed by him, and installed the material in the Talbot home. He observed Scarborough working at the Talbot residence during the “remodeling job.” According to one of Scarborough’s own employees, who assisted in remodeling the Talbot house, Scarborough had no other job in progress at that time and all building materials delivered by Gillison Discount were used in the Talbot home. He observed both of the Talbots at the residence during the remodeling.

The manager of appellant Lake Village Lumber Co. testified that Scarborough “said he had the job” of remodeling Talbot’s house, that materials were sold to Scarborough during July and August and were designated for use in the Talbot residence. He, also, observed construction work on the Talbot house. The amount of this appellant’s asserted lien is $149.56 for materials furnished at Scarborough’s direction. A plumber testified that he acquired materials for the house from both appellants at Scarborough’s direction and installed the materials in the Talbot residence.

We agree with appellees that the record is void of any proof of a contract between appellants, as material-men, and Talbot, as owner of the residence. However, Ark. Stat. Ann. § 51-601 (1971 Repl.) provides:

“Every **** person who shall **** furnish any material **** for any building, **** or for repairing same, under or by virtue of any contract with the owner **** or his agent, trustee, contractor or subcontractor, upon complying with the provisions of this act #*** shall have for his **** materials ###* furnished a lien upon such building ****.”

Thus a lien can be created if a contract is shown to exist between a materialman and a contractor representing the owner. The necessary contract can be by express agreement or implied from the circumstances or conduct of the parties.

We consider our decision in Werbe v. Holt, 217 Ark. 198, 229 S.W.2d 225 (1950), controlling in the case at bar as to the written demurrer. There we held:

“By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case.”

Further, the trial court’s action in sustaining a demurrer to the evidence can be affirmed only if the plaintiff offered no substantial testimony upon the controlling question of fact. Lafayette Co. Inc. Dev. v. 1st Nat’l Bank, 246 Ark. 109, 436 S.W.2d 814 (1969). There we recognized:

‘“The rule is that where fair-minded men might honestly differ as to the conclusion to be drawn from facts, whether controverted or uncontroverted, the question at issue should go to the jury.’”

In the case at bar the appellants presented undisputed evidence that they furnished material to Scarborough in the belief his status was that of a contractor; that the ‘‘Talbot job” was the only job being performed by him at that time; that Scarborough had some authority inasmuch as the materials, at his direction, were being delivered and used in remodeling Talbot’s house; and, further, that Talbot himself and his wife were observed at the residence on occasions when material was delivered and being used in a substantial and visible remodeling (i.e., a room and bath and extending a room). After giving this evidence its strongest probative force and all reasonable inferences deducible therefrom most favorable to appellants, as we are required to do on a demurrer, we are of the view there is sufficient evidence of Scarborough’s status as Talbot’s contractor and of a contract between Scarborough and the materialmen, appellants, to establish a prima facie case as to the asserted material-men’s liens. Therefore, the written demurrer should have been overruled. A different “holding would be plainly contrary to the rule that on demurrer doubts are to be resolved in favor of the pleader, not against him.” Watkins v. Johnson, 235 Ark. 85, 356 S.W.2d 655 (1962).

The decree is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

Brown, Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I cannot agree that appellants established a prima facie case for a materialman’s lien, so I would affirm the trial court’s action sustaining the demurrer to the evidence.

I do not find evidence showing that a contract existed between the “owner” and Scarborough, nor do I find a syllable to show that the materials furnished by either of the appellants were furnished for a building on the property described in the complaint, that the Talbot house was located on that property, that any material was delivered by either of the appellants to that property, or that any material furnished by appellants was used on that property. It is appropriate that all reasonable inferences deducible from the evidence be drawn in favor of appellant, but this does not permit the courts to find evidence of a fact in issue by surmise or guess or by the speculative process of drawing inferences from other inferences and indulging presumptions upon presumptions. To find evidence making a prima facie case for a materialman’s lien here requires just such speculation and conjecture.

Appellants alleged that the materials were sold and delivered to Bill Scarborough and used in the repair and remodeling of a home owned and lived in by Allen G. Talbot and Catherine Talbot on the SMÍ of Lot 7 and NJ4 of Lot 8, in division of Block 1 of Snell’s Addition to the Town of Lake Village, together with certain lands lying east thereof. This was the property upon which both appellants claimed a lien.

The Talbots denied all material allegations of the complaints of appellants against them. Thus, the burden of proving every allegation material to the establishment of the respective liens fell upon the respective lien claimants. Fine v. Dyke Bros., 175 Ark. 672, 300 S.W. 375, 58 A.L.R. 907; Royal Theater Co. v. Collins, 102 Ark. 539, 144 S.W. 919. For the purposes of the motion made by appellees, it remained there. There is evidence that certain materials sold to Scarborough by Gillison were delivered to “A. G. Talbot house,” for the remodeling of the “A. G. Talbot residence,” and that Mrs. Talbot came to Gillison Discount Building Materials and selected or ordered materials for “her house or the house she lived in”. A co-manager of appellant Gillison testified that, when making deliveries to the “A. G. Talbot residence,” he observed that an addition was being made to the house and that he saw Bill Scarborough and Howard Mims there. No one representing Gillison ever contacted Dr. Talbot, talked to him or sent him a statement for materials furnished by that appellant. The materials were billed to Bill Scarborough and the words "Talbot job” placed on the invoices whenever he directed that it be done. The testimony as to the claim of appellant Lake Village Lumber Company does not vary materially from that relating to the Gillison claim. J.W. Davidson did electrical work at the home of A.G. Talbot, installed the materials he purchased from Gillison in “Dr. Talbot’s house” and saw Bill Scarborough working there and Howard Mims helping Scarborough. Davidson said that all the electrical materials he obtained from Gillison were used in the “A. G. Talbot residence.” Davidson was employed by Scarborough, and did not talk with Dr. Talbot or observe him in the house while working there. Frank Speight was employed by Scarborough to do plumbing work and purchased supplies from Gillison and placed them in the “A. G. Talbot house” or “Dr. Talbot house.” Speight did not ever talk to Dr. Talbot. Howard Mims occasionally saw both Dr. Talbot and Mrs. Talbot during the time (1% months) that he was working at the “Dr. A. G. Talbot house” as an employee of Bill Scarborough.

From the evidence, I do not have the slightest idea where the A. G. Talbot house or residence is located, nor can I even surmise what, if anything, is located upon the S'/¿ of Lot 7 and the N% of Lot 8. As far as this record discloses, Dr. Talbot’s office or clinic may be located on the property described in the complaints and against which the lien is asserted. I don’t even know who owns the real property described in the complaint or the lot upon which the Talbot house is situated. Appellees state in their brief that record title to the “property in question” is in Dr. A. G. Talbot.

Even if it could be implied that Bill Scarborough had a contract with someone to remodel or build an addition to the Talbot house, with whom was the contract —Dr. Talbot or Mrs. Talbot? No one ever asked either Dr. Talbot or Mrs. Talbot if there was a contract with Scarborough for work on the Talbot house. A contract with Mrs. Talbot for the work would not entitle appellants to a lien upon Dr. Talbot’s property, unless it be shown that she was acting as his agent. Morehart v. A. B. Beeler Lumber Co., 176 Ark. 818, 4 S.W. 2d 29.

Appellants had the burden of proving all material elements required for the establishment of their respective liens. Among the elements on which evidence was necessary to a prima facie case are the identity of the property to be impressed with the lien and the ownership. This required appellants to prove the fact of ownership and the extent of the interest of the party entering into the contract. Williams v. Humphrey, 97 Ark. 643, 134 S.W. 939; 57 C.J.S. 961, Mechanics’ Lien § 308. Appellants also bore the burden of showing that the materials were furnished under an agreement with the owner or an agent or contractor authorized to act in the premises. Arkansas Foundry Company v. Farrell, 238 Ark. 757, 385 S.W. 2d 26; Morehart v. A.B. Beeler Lumber Co., supra.

If Dr. Talbot is the owner of the property on which appellants seek to establish liens, then the record is devoid of any evidence of a contract with him and of any agency relationship under which Mrs. Talbot could bind him. Nor is there any evidence of a contract between Dr. Talbot and Scarborough. Appellants rely upon testimony that Scarborough stated to employees of both appellants that he had "the job.” Even if this could be taken as testimony that Scarborough had a contract, it does not establish that the contract was with the owner of the property. Furthermore, the authority of Scarborough might have been shown by his testimony, but it could not be proved by his declarations to others. Daly v. Arkadelphia Milling Company, 126 Ark. 405, 189 S.W. 1053.

The strongest indication of a contract with Dr. Talbot is that he was "occasionally” seen by Howard Mims during the time Mims was doing work for Scarborough at the Talbot house, along with the references of the witnesses to the Dr. A. G. Talbot house. Still, the only evidence of any selection of materials for which a lien was sought concerned those selected by Mrs. Talbot. There is no testimony that Dr. Talbot ever paid for any item that was purchased or selected by Mrs. Talbot or that he was ever billed for any of them. Under these circumstances I do not feel that there was any estoppel against Dr. Talbot, because there is nothing to show any knowledge by the husband of his wife’s purchases on his account. Unless Mrs. Talbot is the owner of the property, there is no basis for a lien on whatever property the Talbot house is situated. Morehart v. Beeler, supra. There we said;

* * * there was no contract between appellee and the owner of the lot, or her agent, for the purchase of said material, as provided by section 6906, C. & M. Digest. In order for a material furnisher or laborer to have a lien upon the property, it must be "under or by virtue of any contract with the owner or proprietor thereof, or his agent, etc.” This is the plain language of the statute. It is admitted that appellee had no contract with appellant for the furnishing of this material. It is undisputed that the contract was with the husband of appellant, and it is nowhere shown that he was the agent of appellant, with authority to bind her in the purchase of this material. The fact that she saw the material on the lot and knew that her husband was building this house is not sufficient to imply a contract on her part to pay therefor, and there is no testimony in the record to show that she ever agreed to pay for it. There is no allegation in the complaint ¿hat B.F. Morehart was the agent of appellant, and there was no proof sufficient to establish this agency.
In the case of Hoffman v. McFadden, 56 Ark 217, 19 S.W. 753, 35 Am. St. Rep. 101, this court decided the exact questions now under consideration against the contentions of appellee here. It was there held that', under the statute creating a lien for work done, or materials furnished in making improvements on real property, the lien exists only where the labor is performed or materials furnished under a contract, express or implied, with the owner of the land, or with his agent, trustee, contractor, or subcontractor. And that the husband has no power to make a contract to improve his wife’s property so as to create a mechanic’s lien thereon, unless he had the power and authority to contract for her as her agent; and it was further held that such authority cannot be implied because of the relation of husband and wife, or from the fact that he assumes to manage her real estate, nor could the agency be inferred because of her knowledge that he is causing improvements to be erected upon her property.

I would affirm the judgment.

I am authorized to state that Mr. Justice Byrd joins in this dissent.


text:
    R. C. TRAYLOR v. Harold HUNTSMAN d/b/a HUNTSMAN FARM STORE and ALLIS-CHALMERS MFG. CO.
    5-6097
    488 S.W. 2d 30
    Opinion delivered December 18, 1972

      Guy H. Jones, Phil Stratton ir Guy Jones Jr., for appellant.

      House, Holmes & Jewell, by: Don F. Hamilton, for Allis-Chalmers; George F. Hartje, for Huntsman.
   Frank Holt, Justice.

Appellee Huntsman, a retailer, sold the appellant a farm tractor. Huntsman brought this action to collect the alleged balance owed on the tractor and to foreclose a lien. Appellant filed an answer and, also, responded with a counter-claim against Huntsman and a third-party complaint against appellee Allis-Chalmers, the manufacturer of the tractor. Upon appellant’s motion, the cause was transferred from Chancery to Circuit Court. After the evidence by Huntsman and appellant was presented, the court granted appellee Allis-Chalmers’ motion for a directed verdict. At the close of all the evidence the court directed a verdict in favor of Huntsman as to appellant’s counter-claim for crop damages. The jury verdict was in favor of Huntsman for $9,250 as being the balance due him on the purchase price of the tractor. The jury verdict, also, directed “delivery of the hitch” as provided in the contract. The court, with Huntsman’s consent, reduced the verdict by $697.35, the value of the three-point hitch. From that judgment as modified, plus interest and attorney’s fee, comes this appeal.

For reversal appellant first contends that the trial court erred in dismissing appellant’s third-party complaint against appellee Allis-Chalmers. The third-party complaint against Allis-Chalmers, the manufacturer, alleged that the retailer Huntsman and Steve Travis, a field representative of the manufacturer, sold the farm tractor to appellant and represented to him that it was a new demonstrator with less than 150 hours of use; that it was not a new demonstrator which was known to the manufacturer’s agent; that the tractor did not conform to the contract because it was delivered without a “three-point hitch” and the manufacturer’s agent knew that a three-point hitch was required; and that the tractor had been used excessively. In his third-party complaint, the appellant sought damages for the difference between the contract price and the actual market value of the tractor and, also, for damages resulting from the non-delivery of the three-point hitch which allegedly caused a late planting and, therefore, a diminished soybean yield for the 1968 crop. It is appellant’s contention “that the pleadings and the proof, when viewed in the light most favorable to appellant, was sufficient to create a question for the jury on two allegations of the third-party complaint [1] whether the tractor was a new demonstrator as represented and [2] whether the tractor conformed to the contract when it was delivered minus the three-point hitch.”

In our view the evidence appears undisputed that the manufacturer was not a party to the contract originally or by ratification. The terms of the contract were verbally agreed upon between Huntsman, the seller, and appellant, the buyer, after negotiations between them and inspection of the tractor by appellant. A few days later Huntsman and appellant signed the written contract. Travis, the manufacturer’s agent, merely witnessed their signatures and assisted in computing the balance due and, after credits, the annual payments and then filled in these items. (Appellant says that the balance due was left blank and should be $8,250 rather than $9,250.) Appellant admits that he had never met this agent until the date appellant signed the contract. Also, the agent nor any other representative of the manufacturer ever made any representations to him concerning the quality or condition of the tractor or with respect to whether the tractor conformed to the contract upon delivery without the three-point hitch. When we consider this evidence in the light most favorable to the appellant, no factual issue existed for the jury’s consideration as to the manufacturer being a party to this contract; therefore, the trial court properly directed a verdict. Cowart, Adm’x v. Jones, Contractor, 250 Ark. 881, 467 S.W.2d 710 (1971). Furthermore, appellant admits that he knew it was a demonstrator and that the manufacturer had fully performed a one-year warranty with respect to his complaints. The one-year warranty was customary in the sale of a new demonstrator tractor.

Appellant next contends that the trial court erred in directing a verdict for appellee Huntsman on appellant’s counter-claim. The contract provided that Huntsman, the seller, would order and deliver a “3 point hitch” which was to be used on the tractor in planting his soybean crop. Appellant makes the argument that the failure of Huntsman to deliver the three-point hitch resulted in consequential damages, i.e., a decrease and loss in appellant’s soybean production. According to appellant, the offer of delivery by Huntsman of the three-point hitch occurred too late for use in soybean planting. It is appellant’s assertion “that the proper measure of damage for diminished yield or diminished quality is the value of the difference in yield or quality where the entire farm was cultivated, planted and harvested as it was done here.” In support of this asserted basis for consequential damages, appellant adduced evidence as to the soybean production on a 600 acre tract in 1967 in contrast to a lesser yield on this same 600 acres, plus an adjoining 100 acres, in 1968, which is the year in question. In other words, there was testimony that the yield on the smaller acreage for the previous year was greater. The support price for soybeans was $2.50 per bushel for each year.

Appellant agrees that our pre-Uniform Commercial Code cases hold that the measure of damages as to growing crops must include consideration for the difference between the cost of producing and gathering a full crop and the crop which was actually produced. St. Louis Southwestern Ry. Co. v. Morris, 76 Ark. 543, 89 S.W. 846 (1905). However, the appellant persuasively argues that our UCC, Ark. Stats. Ann. § 85-2-714 and 715 (1961 Add.) and Comment 4 with the latter section, clearly provides for a liberal administration of remedies. Comment 4 “***rejects any doctrine of certainty which requires almost mathematical precision in the proof of loss. Loss may be determined in any manner which is reasonable under the circumstances.” However, consequential damages, or anticipated profits such as the diminished crop yield as alleged in the casé at bar, cannot be recovered unless the evidence establishes the alleged damages with reasonable certainty. Reed v. Williams, 247 Ark. 314, 445 S.W.2d 90 (1969).

In the case at bar when we view the evidence most favorably to the appellant, the proof was insufficient to take the question of anticipated profits or consequential damages out of the realm of speculation and conjecture and would present to the jury an incomplete set of figures as to anticipated profits. Therefore, the trial court properly refused appellant’s instruction on this issue and correctly directed a verdict for Huntsman upon appellant’s counter-claim for consequential damages.

Appellant next asserts for reversal that the modification of the verdict after discharge of the jury was erroneous and prejudicial. The jury found that the appellant owed $9,250. In its verdict, the jury directed “delivery of the hitch” to the appellant. The cost of the hitch was $697.35. The hitch was included as an item in the total sale price of the tractor in the written contract. Huntsman had offered to deliver the hitch after he acquired it. The trial court, with Huntsman’s consent, modified the $9,250 judgment by deducting $697.35. Appellant contends that the trial court exceeded its authority. Appellant acknowledges that the trial court has plenary power to determine the jury’s intention when it can be fairly interpreted. Sledge & Norfleet Co. v. Mann, 166 Ark. 358, 266 S.W. 264 (1924), Reynolds v. Nutt, 217 Ark. 543, 239 S.W.2d 949 (1950). When the jury’s intention is obvious and manifest and is incorrectly expressed, under a mistake of law and not of fact, it is proper for the court to amend the verdict in order that it conforms to the jury’s intention. In other words, when the jury’s intention can be ascertained with certainty, the trial court is accorded the power and authority to modify the verdict. Trailmobile v. Robinson, 227 Ark. 915, 302 S.W. 2d 786 (1957), Neal v. Peevey, 39 Ark. 337, App. & E. 231 (9) (1882). In the case at bar, we find no error in the court amending the verdict to conform to the obvious and certain intention of the jury.

The appellant next contends for reversal that the court erred in providing in the judgment a lien on the tractor in favor of Huntsman. The judgment directed that the tractor be sold to the highest bidder and the proceeds applied to the judgment. Appellant contends there is no authority for a court of law to declare a lien on personalty. Even so, here the error is harmless, since the seller’s asserted lien, based upon retention of title as provided for in the written sale contract, can be enforced by further proceedings pursuant to Ark. Stat. Ann. § 34-2301 (1962 Repl.). To that extent the judgment is modified.

Affirmed as modified.


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

text:
    NORTHWESTERN NATIONAL INSURANCE COMPANY and BEARDEN ENTERPRISES v. Mavis M. WEAST
    5-6098
    488 S.W. 2d 322
    Opinion delivered December 18, 1972

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellants.

      John T. Lavey, for appellee.
   Frank Holt, Justice.

Appellee sustained a back injury which required surgery for ruptured discs. The Workman’s Compensation Commission, in affirming a referee’s opinion, found that appellee had not suffered her alleged compensable claim during her employment with appellant Bearden Enterprises; also, that appellee’s disability was the result of a non-compensable injury caused by appellee’s fall in her yard. On appeal the Circuit Court held there was no substantial evidence to support the finding of the Commission and that appellants’ counsel had waived the right to cross-examine claimant’s treating physicians. Accordingly, a deposition of Dr. Freeland was expunged from the record. From the judgment of the Circuit Court reversing and remanding the cause back to the Commission comes this appeal. Appellants contend for reversal of that judgment that the finding and action of the Workman’s Compensation Commission are supported by substantial evidence and, therefore, should be affirmed.

We first observe that the burden was on the appellee claimant to establish her claim for compensation by a preponderance of the evidence before the Commission and that the trial court and this court on appeal review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings which, like those of a jury, will be upheld if there is any substantial evidence to support the Commission’s action. Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W. 2d 489 (1972), Mayner v. Flyer Garment Co., 249 Ark. 384, 459 S.W. 2d 413 (1970), Bentley v. Henderson, 251 Ark. 203, 471 S.W. 2d 548 (1971), and Dura Craft Boats v. Daugherty, 253 Ark. 340, 485 S.W. 2d 739. Evidence was adduced that appellee claimant injured her back at work around 8 a.m. on December 8, 1969, when she slipped from a toilet seat. She felt a sharp pain and immediately reported her injury to her supervisor. She worked that day and on the following day her local physician, Dr. Freeland, examined and Xrayed her. He diagnosed her injury as acute sprain with muscle spasm in the lumbosacral area of the back. He prescribed conservative treatment and observed her again on December 10, 12, 17 and 19. The Xrays revealed no evidence of fracture or displacement. Appellee complained of soreness in her right leg as well as her back. According to her doctor, she was improved with each visit and he discharged her on December 19. She returned to her job and worked on December 22 and 23. Upon returning from her work on December 23, appellee, as she was walking across her yard, fell face forward to the ground. Following this momentary fall, she was assisted by her husband into the house. The next day she did not work because of greater soreness about her back. After the Christmas holidays, she returned to work for a couple of weeks and then secured a leave-of-absence from her job for approximately two months because, according to her, of the problem with her back and the responsibility of taking care of her aging mother. Appellee, her coworkers, and other witnesses testified that she complained constantly after her December 8 back injury and, also, after her fall on December 23.

During her leave-of-absence, she saw her local physician, Dr. Freeland, on February 21 and 24. According to him, the nature of her complaint related to her menstrual irregularities, anxiety, and nervous tension. She did not complain or mention anything to him about her back injury or resulting pain on either of these visits. She returned to work on March 16. On April 4, she again saw Dr. Freeland and renewed her complaint about pain in her back. This time, however, she complained of pain in the left leg instead of the right leg. She did not tell him about the fall in her yard on December 23. On examination he found spasm of the muscles in the thigh and calf of her left leg and in the lumbosacral area of the back. He then diagnosed her condition as a possible ruptured disc and referred her to a specialist, Dr. Blackwell, who saw her on April 10 and hospitalized her for three weeks. During this time she responded to conservative treatment sufficiently to be discharged from the hospital. About a week later, since her pain persisted, Dr. Blackwell referred her to another specialist, Dr. Padberg. After performing certain tests, including a myelogram, he successfully performed surgery and repaired two large discal lesions in appellee’s back.

As we have previously said, the burden was upon the claimant to convince the Commission by a preponderance of the evidence that her first injury was the cause of her disability. We think what we said in Brower Mfg. Co. v. Willis, 252 Ark. 755, 480 S.W. 2d 950 (1972), is appropriate in the case at bar:

“The commission made a fact finding upon a close question of fact by resolving all inferences against appellants and by giving the evidence the most liberal construction possible in favor of the claimant. The question is not whether the testimony would have supported a finding contrary to the one made, but whether it is substantial in support of the one made. Since we cannot say that reasonable minds could not reach the commission’s conclusion from the evidence, that evidence was substantial.”

See, also, Wilson v. United Auto Workers, 246 Ark. 1158, 441 S.W. 2d 475 (1969), and Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W.2d 487 (1968).

In the case at bar, the day following appellee’s alleged compensable injury, her local physician, Dr. Free-land, examined her finding an acute sprain and muscle spasm in her lumbosacral back area. His Xrays showed no fractures or displacements. She responded to conservative treatments and after several visits to him, he discharged her as a patient. She immediately returned to work. During subsequent visits to Dr. Freeland, after returning to work and during her leave-of-absence, she made complaints about other physical conditions. She never mentioned to him anything about the second fall nor made a complaint that her back continued to cause her pain and suffering. Later when appellee did complain to him, she described the pain as existing in the left instead of the right leg. It could very well be that it is improbable that the second injury and not the first was the cause of claimant’s back condition. However, it is not shown that it was a physical or medical impossibility for such to occur. Since there is substantial evidence, as we have so many times defined that phrase, to support the Commission’s finding, the Circuit Court was without authority to reverse the Commission as fact finders.

Appellants next assert that the court erred in holding they had waived their right to cross-examine the treating physician. We agree. The medical reports of these doctors were submitted without objection approximately two months before the hearing. At the close of the hearing, before the referee, the appellants’ attorney was asked if he wished to cross-examine any of the doctors. The attorney responded that he would like to have a few days to consider the matter. By a letter, ten days later, the attorney advised the referee his clients insisted on the right of cross-examination of the doctors since at the hearing appellee admitted to having suffered a fall in her front yard following the alleged compensable injury. This fall occurred four days after she was discharged by Dr. Freeland. This attorney advised that after reading the medical reports he could not find that the claimant had ever informed any of her doctors that she had fallen subsequent to the alleged compensable injury.

Appellants’ requested cross-examination of Dr. Free-land was permitted over appellee’s objection. Ark. Stat. Ann. §.81-1327 provides:

“In *** conducting a hearing, the Commission shall not be bound by technical or statuatory rules of evidence or by technical or formal rules of procedure *** but may *** conduct the hearing in such a manner as will best ascertain the rights of the parties. ***”

Also, Rule 14 of the Commission provides that it is within the discretion of the hearing officer or the Commission to allow the introduction of medical reports of physicians even if proper notice is not given. The Commission had broad discretion with reference to the admission of evidence.

In the case at bar, we find no evidence of any abuse of discretion. Accordingly, the judgment of the Circuit Court is reversed and the cause remanded with directions to affirm the Commission’s dismissal of appellee’s claim.

Reversed and remanded.

Jones, J., dissents.

J. Fred Jones, Justice,

dissenting. I do not agree with the majority opinion in this case. There is no question that Mrs. Weast sustained a compensable injury to her back on December 8, 1969, when she fell in a twisted position wedged in-between a commode and the wall of a rest room where she worked. She experienced immediate back pain and she immediately reported the accident to her employer. The employer furnished medical treatment by Dr. Freeland following the injury and the injury was diagnosed initially as acute sprain and muscle spasms. Initial x-ray for bone fracture or displacement appeared negative and Mrs. Weast appeared to improve under conservative medical treatment until December 19 when Dr. Freeland discharged her as able to return to work. She did return to her job and worked on December 22 and 23 and continued to work intermittently until a ruptured disc was suspected by Dr. Freeland on April 14, 1970, and Mrs. Weast was referred to specialists in the field of neurosurgery. On this point Dr. Freeland testified as follows:

“A. That’s right, and that’s the time I sent her to Dr. Blackwell.
Q. Is it fair to state on April 4th her condition, at least insofar as her back was concerned, had considerably deteriorated, or at least to the point where, in your opinion, the indications of a ruptured disc were sufficient that you referred her to a specialist?
A. Well, she hadn’t come along like she should, and I felt it was time for her to be seen; and if she did have such, for us to diagnostically work it up. You have to — it must be borne in mind that for an accurate diagnosis of a ruptured disc that it requires a myelogram.
Q. Yes; but there are — the leg raising tests and reflexes.
A. She continued to have pain with her left leg and thigh and calf and in her back. At that time she had pain. She had pain in her right leg, spasm in her thigh.” (Emphasis added).

Dr. Blackwell also suspected a ruptured disc but he referred Mrs. Weast to Dr. Padberg, a neurosurgeon in Little Rock, and following an electromyographic workup Dr. Padberg diagnosed and surgically removed two disc lesions. Dr. Padberg reported as follows:

"This patient was operated upon at St. Vincent Infirmary on June 16, 1970. She was found to have a large, extruded intervertebral discal lision at L5-S1 on the left and a large, bulging lesion at L4-5 on the left.”

The evidence is clear to me that following her injury on December 8 Mrs. Weast constantly complained of back pain on the job, and the pain she complained of was consistent in nature and only varied as to severity and intensity. It is almost common knowledge that ruptured discs do not show on ordinary x-rays, and this fact was recognized by Dr. Freeland as above set out.

As pointed out in the majority opinion, there was evidence in this case that when Mrs. Weast returned from the day’s work on December 23, and after she had gotten out of the automobile in which she had ridden from work and was crossing her yard to her house, she fell forward to the ground. She got to her feet immediately, smiled and waved to the other passengers in the automobile and went into her house. She stayed home from work for a couple of days following the fall in her yard and testified that she was sorer following this fall than she had been.

The evidence does not reveal what caused Mrs. Weast to fall as she crossed her yard. The evidence did not show whether she stumbled over some object, stepped in a hole in her yard, or whether her leg simply gave way because of the pain Mrs. Weast said she had in her left leg and the muscle spasms in the calf and thigh Dr. Freeland said that he found in February. The evidence does not indicate whether the December 8 injury did or did not contribute to the second fall on December 23 but as I view the evidence, it certainly does not indicate that her second fall contributed to her injury, and that is the important question. Be that as it may, there is substantial evidence that Mrs. Weast continued to work for approximately two weeks following her fall in the yard. She took a two months’ leave of absence from her work to be with her mother and returned to work on March 16. After working less than a month it was again necessary for her to seek medical attention for her injured back. Her back condition continued to deteriorate and she was eventually referred to a neurosurgeon who correctly diagnosed and surgically removed two large disc lesions, after which Mrs. Weast was relieved of the pain she had suffered since December 8, 1969.

There is no question that Mrs. Weast’s symptoms following her injury on December 8, 1969, remained practically the same (changing only in severity) from December 8 until the two discs were removed. The majority say there was substantial evidence to support the Commission’s finding that Mrs. Weast’s disability was the result of a noncompensable injury sustained by her on December 23 when she fell in her front yard. I find no evidence at all that Mrs. Weast sustained any injury when she fell in her yard, certainly I find no substantial evidence that Mrs. Weast sustained the two ruptured discs as a result of her fall in the yard rather than when she fell in a twisted position wedged between the commode and the wall on December 8, 1969. If the two ruptured discs were causing all the pain Mrs. Weast suffered following her fall in the yard, there still remains the question without an answer as to what caused the same type of pain in the same area following her injury on December 8.

I agree with the first sentence of the majority opinion where it is stated that the “Appellee sustained a back injury which required surgery for ruptured discs.” The question then is whether Mrs. Weast sustained the injury in the course of her employment on December 8, 1969, when she fell in a twisted position wedged between the commode and wall, at which time she felt sharp pain in her back radiating down her left leg, or whether she received it on December 23, 1969, when she fell forward on her lawn after which she picked herself up, smiled and waved to her fellow-employees with whom she had ridden from work. As I view the evidence, the mere fact that Mrs. Weast failed to mention to the doctors that she fell in her yard is indicative to me that she attributed no significance to the fall in her yard. Certainly her failure to inform the doctors that she fell in her yard is no evidence that she sustained her ruptured discs when she fell in the yard.

It appears to me that in order to sustain the Commission’s finding under the “substantial evidence rule” in this case, it would be necessary to eliminate the word “substantial” from the rule. Even if the word “substantial” were left out of the rule, I would still be unable to find any evidence that Mrs. Weast sustained her ruptured discs on December 23 rather than December 8. In my opinion this is exactly the type of case where the Commission should resolve the doubts in favor of the claimant. It is my impression from the overall record in this case that the Commission felt constrained to require strict medical proof, and medical proof only, as to which of the proven accidents or falls caused the ruptured discs in this case. It is my opinion that it was not essential that a doctor testify as to which of the accidents caused the ruptured discs. If a person falls in any twisted manner and injures or sprains her back with attending muscle spasms and pain radiating into the legs, and then about a week later simply falls down and the same symptoms continue until terminated by the removal of ruptured discs, common sense dictates to me that the attending physician’s lack of knowledge concerning the second accident is no evidence at all that the ruptured discs in fact occurred as a result of the second fall.

The doctors in this case experienced enough difficulty in finally determining that Mrs. Weast even had two ruptured discs. All of her physical symptoms of ruptured discs remained constant from her injury on December 8 until their surgical removal two months later, and to expect a doctor to say that the ruptures occurred on December 23 rather than on December 8 under the evidence in this case is, in my opinion, expecting entirely too much. As a matter of fact, however, I fail to find where any doctor ever hazarded a guess that Mrs. Weast sustained her ruptured discs on December 23.

I am simply unable to understand how the Commission arrived at its decision in this case so, consequently, I am unable to follow the reasoning of the majority in finding substantial evidence to sustain the Commission’s award. I am of the opinion that the majority is brushing too lightly over the substantial nature and quality of substantial evidence.

Vol. 4, Ford on Evidence, p. 2760, § 549, offers the following definition of substantial evidence:

“Substantial evidence is evidence that is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture. (People v. Managanaro, 218 N.Y. 9).”

In vol. IX, Wigmore on Evidence, p. 299, § 2494, 3rd ed., the following appears:

Perhaps the best statement of the test is this: [the proposition] cannot merely be, Is there evidence? . . . The proposition seems to me to be this: Are there facts in evidence which if unanswered would justify men of ordinary reason and fairness in affirming the question which the plaintiff is bound to maintain?”

On page 300 of Wagmore, supra, appears footnote 18 quoting language as follows:

. . substantial evidence is evidence furnishing a substantial basis of fact from which the fact in issue can reasonably be inferred; and the test is not satisfied by evidence which merely creates a suspicion or which amounts to no more than a scintilla or which gives equal support to inconsistent inferences.’”

I would affirm the judgment of the circuit court.

       Mrs. Weast was allergic to iodine and a myelogram was not done.


text:
    James L. GUFFEY and Norman Taylor BLACK v. STATE of Arkansas
    5791
    488 S.W. 2d 28
    Opinion delivered December 18, 1972

      F. C. Crow, for appellants.

      Ray Thornton, Atty. Gen., by: James A. Neal, for appellee.
   Frank Holt, Justice.

A jury convicted appellants of the crimes of robbery and first degree kidnapping and assessed their punishment for each offense at 21 and 15 years respectively in the state penitentiary. The trial court directed that the sentences be served consecutively. From that judgment comes this appeal. For reversal the appellants first contend through court appointed counsel that the trial court erred in admitting into evidence a pistol which was secured from appellants’ vehicle by a warrantless search. We think the trial court was correct.

The police received information that the robbery was in progress, the suspects armed and, also, a description of their truck. Consequently, the police located the suspects’ vehicle in flight and by radio arranged for a highway roadblock. While following the described vehicle, the officers saw the individual (Black) on the passenger side of the truck bend over as if to put something under the seat. Appellants’ truck was stopped at the roadblock. When appellant Guffey, the driver, got out of the truck as commanded, one of the officers saw Guffey’s pistol which Guffey had been sitting upon. The officer immediately took possession of this loaded weapon and no objection is made to its admissibility as evidence. When Black stepped from the vehicle on the passenger side, the officer on that side of the car did not find Black armed or see a weapon. The officer then asked the victim of the robbery, who was being held hostage by appellants, about Black’s having a weapon. Jde was told that it was underneath the seat. The door to the vehicle was open and the officer testified “[I[t was in plain view when I did bend down and look.” He then recovered the loaded and cocked pistol.

Without hesitation we hold that the facts and circumstances were amply sufficient to establish probable cause for appellants’ arrest and, therefore, a search of the vehicle and seizure of Black’s pistol incidental to the valid arrest was lawful. Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970), Scott v. State, 249 Ark. 967, 463 S.W. 2d 404 (1971), Tygart v. State, 248 Ark. 125, 451 S.W. 2d 225 (1970), Moore, Frazier, Davidson v. State, 244 Ark. 1197, 429 S.W. 2d 122 (1968), Chambers v. Maroney, 399 U.S. 42 (1970), and Cooper v. California, 386 U.S. 58 (1967). Cf. Jenkins v. State, 253 Ark. 249, 485 S.W. 2d 541 (1972), Chimel v. California, 395 U. S. 752 (1969). The 4th Amendment to the United States Constitution and Article 2, Section 15, of our Arkansas Constitution prohibit only searches and seizures which are unreasonable. It cannot be said that the search and seizure, in the case at bar, was unreasonable.

Appellants next contend for reversal that the court erred in overruling appellants’ motion to strike testimony relating to one of the arresting officers since he was not a witness at the trial. We quickly dispose of this contention by observing that the other arresting officers testified only about the activities and not statements of their fellow arresting officer.

Appellants next contend that it was reversible error in that the deputy prosecuting attorney, in his closing arguments, referred to the appellants as “these two thugs.” In Miller v. State, 250 Ark. 199, 464 S.W. 2d 594 (1971), we held that the prosecuting attorney’s reference to appellants as “con artists,” although not recommended as proper argument,, did not require a mistrial. Also, in Moore v. State, 251 Ark. 436, 472 S.W. 2d 940, we said that when the prosecuting attorney referred to the defendants as “thugs” and “roughnecks” this did not warrant mistrial inasmuch as the trial court instructed the jury to give no consideration to this argument and admonished the prosecuting attorney about the language used. In the case at bar the court admonished the prosecuting attorney to “stay in the record.” Also, at the close of all the evidence, the jury was instructed that closing arguments are not evidence and to disregard any statements or remarks of the attorneys which have no evidentiary basis. We find no prejudicial error.

Finally the appellants contend that the evidence is insubstantial to support the jury verdict. Suffice it to say that the appellants were apprehended while transporting the victim of the robbery and the kidnapping as their hostage and, also, found in possession of the proceeds from the robbery. The victim testified and identified the appellants. Needless to say the evidence is more than amply substantial to sustain the jury’s verdict as to both offenses.

Affirmed.

PER CURIAM

Opinion delivered December 18, 1972

Petitioner, Jerry Wayne Baumgarner, has filed herein a petition, which we treat as a writ of certiorari, seeking to overturn the trial court’s ruling that an indictment for first degree rape is not a bailable offense. Since Furman v. Georgia, 408 U. S. 238 (1972), the death penalty cannot, under our present law, be assessed — thus the maximum penalty assessable is a life sentence. In Walker v. State, 137 Ark. 402, 209 S. W. 86 (1919), we held that a life sentence is a bailable offense under Art. 2, § 8. Consequently, the trial court erroneously held that the offense here was not bailable. See Graham v. State, 253 Ark. 462, 486 S.W. 2d 678, and State v. Johnson, 61 N.J. 351, 294 S. 2d 245 (1972).

Reversed and remanded to trial court with directions to fix bail.


author: Carleton Harris, Chief Justice.

text:
    Eugene JARVIS & Noble JARVIS d/b/a JARVIS’ LIQUOR STORE v. ALCOHOLIC BEVERAGE CONTROL BOARD
    5-6100
    488 S.W. 2d 709
    Opinion delivered January 8, 1973

      Perkins, Boyce ir McLarty, by: Tim F. Watson, for appellants.

      Ray Thornton, Atty. Gen., by: Milton Luekin, Asst. Atty. Gen., for appellees.
   Carleton Harris, Chief Justice.

Appellants, Eugene Jarvis and Noble Jarvis, are bothers who own and operate a club in Newport where beer is sold. In November, 1969, they were nodfied that a hearing would be held before the Director of the Department of Alcoholic Beverage Control for the purpose of determining whether their permit should be suspended, cancelled, or revoked for allegedly allowing beer to be sold to certain persons while these persons were in an allegedly intoxicated condition on or about August 2,1969. On hearing, the Director found that appellants were guilty of violating the regulations of the Department and the beer permit held by the Jarvis brothers was suspended for a period of four weeks, two weeks of the suspension to be held in abeyance during a six month probation period, and they were prohibited from selling, dispensing, or allowing the consumption of alcoholic beverages on the premises. This decision was appealed to the Alcoholic Control Board which affirmed the Director’s decision, after which a petition for review of the Board’s decision was filed in the Jackson County Circuit Court under the authority of the Arkansas Administrative Procedure Act. On January 3, 1972, the court affirmed the opinion and ruling of the Board and from such judgment, appellants bring this appeal. For reversal, it is simply asserted that the circuit court erred in not reversing the decision of the Board for the reason that the findings of the Board are not supported by substantial evidence.

Jack Henson, employed by the Criminal Investigation Division of the Arkansas State Police, together with another investigator went to Newport to investigate whether intoxicants were being illegally sold at Jarvis’ Bamboo Club, arriving there about 10:00 p.m. and staying until a little past midnight. The investigators purchased three beers. Mr. Henson testified that they were sitting in a location where they could view the entire club and that they did not tell anyone that they were with the Arkansas State Police. The witness said that during the period of time mentioned above they observed eight persons being sold beer who, in his opinion, were intoxicated. He characterized three, viz, Bill W. Scroggins, Arlis R. Lee, and William David West as excessively drunk. Henson stated that these three men were served beer approximately every twenty to twenty-five minutes; that they were using unusually loud language; that when they went to the restroom they were “walking drunk”. He identified Mrs. Leona Hargrove, a waitress, as the person who served them. Other officers came to the place a little after midnight and the eight persons mentioned were arrested. Henson did not know the people before they were arrested and he stated that he did not see either Noble Jarvis or Eugene Jarvis, owners, prior to the arrest.

Jim McClure, a Sergeant with the Newport City Police Department, testified that he administered intoximeter tests to the people that were arrested at Jarvis’ Tavern and taken to the police station. McClure stated that he used the type of test that the department had been using for two years and that he attended the training session that was conducted in St. Louis by the manufacturer of this product. McClure explained the procedure in giving the test and said that the final reading on Arlis Lee was .18%. The witness explained that .10% supports a charge of driving while intoxicated and a .15% or over is public drunkenness. Lee was charged with public drunkenness and the record reflected "Bond forfeiture on the Eighth of August, 1969, Thirty Dollars for public drunkenness”. The reading on West was .21% and he too was charged with public drunkenness, and subsequently entered a plea of guilty and was fined $20.00. McClure likewise administered an intoximeter test to Scroggins, the result showing a .20%. Scroggins too was charged with public drunkenness and subsequently forfeited bond to the city court.

Freddie Clark, also with the Arkansas State Police, testified that he was present and observed Lee, West, Scroggins, and Maloff; that they were obviously in a drunken condition, speech impaired, staggering, and in a “happy mood, laughing — nothing seemed to matter to them”. He considered their degree of drunkenness “excessive”. Billy Bob Davis, a Lieutenant with the Arkansas State Police, likewise testified that West, Lee, Scroggins and Maloff were excessively drunk.

Noble Jarvis testified that he had instructed his waitresses that they were definitely not to serve any persons who were intoxicated; that he did not know of the sales here at issue and would have stopped such sales had he known it. He also stated that if a waitress had continued to serve them “they would not be in our employ any more”. On cross-examination however, he admitted that he had not fired anyone, though he had been charged several times and appeared before the director. He also admitted that he had been convicted of perjury and “selling to a minor”.

Leona Hargrove testified that the Jarvis brothers had given her instructions, “If I thought a person had enough — to not serve them anymore, cut them off; and that is what I did”. She said that she had tried to follow the instructions and on the night in question had “cut off” people who had had, in her opinion, too much to drink. The witness stated that she did not know the names of these persons. Susie Teague, another waitress, testified to receiving the same instructions and she said she also “cut off” some persons on the night in question but she could not identify them other than Joe Gould. She stated she felt that Gould was drunk; that he had been there all night and had been drinking beer sold to him on the premises. That concluded the testimony.

The charges which were presented to the director were brought under the provisions of section 35 of the “Revised State Beer, Wine, and Liquor Regulations”, which are the same as Ark. Stat. Ann. § 48-529 (Repl. 1964), reading as follows:

“No holder of a license authorizing the sale of beer for consumption on the premises where sold, or any servant, agent, or employee of the licensee shall do any of the following upon the licensed premises:
(A) .....
(B) knowingly sell beer or wine to any person which such person is in an intoxicated condition.”

Appellants argue that there is no substantial evidence to support the finding of the board that the appellants violated this regulation. From the brief:

“ ‘Substantial evidence’ is a much-used phrase in American iurisorudence. Words and Phrases defines substantial evidence variously as ‘more than a mere scintilla, and means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion’ and ‘the question of what constitutes ‘substantial evidence’ is whether men of ordinary reason and fairness could find that most favorable evidence sustains the truth of the fact to which proof is directed’. In Arkansas, substantial evidence has also been defined as ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion’ *** The issue to be decided by the Court may thus be stated as follows: Does the record contain evidence, as distinguished from conjecture or speculation, upon which reasonable men could conclude that the Appellants violated the Alcoholic Beverage Control regulation in question on August 1, 1969?”

To this last question contained in appellants’ brief, we answer “yes”. Henson testified that three of the persons purchasing beer were excessively drunk. The evidence of drunkenness was substantiated by the intoximeter tests. In fact, two others, Gould and Maloff, forfeited bond at city court, the intoximeter test for Gould reflecting .16%. Appellants appear to be under the impression that disciplinary measure can only be taken against the Tarvis brothers if the particular sales were made with their specific consent or knowledge. We do not agree. The statute declares a violation if such sales are made by any employee of the licensee. Of course, were it otherwise, such a statute would indeed be difficult to enforce for it would require the personal approval of a licensee for each particular sale in order to enforce the provisions of the act; this would, of course, be practically impossible. Not only that, but under appellants’ theory, it would only be necessary for the holder of a license to present proof that he was not present when the sales were made, and that he had told his employees not to sell to an intoxicated person — the law would then be meaningless. The two waitresses testified that they did “cut off” sales to some of the customers on the occasion in question but they were unable to name any individual other than Joe Gould, and for that matter, under the proof, it would appear that Joe Gould should have been “cut off” earlier.

Affirmed.

       Of the five remaining, the intoximeter test of Joe P. Gould reflected .16%, Gould forfei ting a bond for public drunkenness; John Maloff''refused to take the test but subsequently forfeited a $30.00 bond in city court; the other three did not register high enough to be charged with public drunkenness, the officer testifying that the percentage was .11% or .12%.


author: George Rose Smith, Justice.

text:
    Eugene JARVIS et al v. ALCOHOLIC BEVERAGE CONTROL BOARD
    5-6101
    488 S.W. 2d 712
    Opinion delivered January 8, 1973

      Perkins, Boyce if McLarty, by: Tim F. Watson, for appellants.

      Ray Thornton, Atty. Gen., by: Gene O’Daniel, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The Director of the Alcoholic Beverage Control Department, after notice and a hearing, found that the two appellants, who own and operate a liquor store in Newport, had unlawfully sold alcoholic beverages to a minor. The Director ordered that the appellants’ liquor and beer permits be suspended for thirty days. The Director’s decision was sustained by the Alcoholic Beverage Control Board and by the circuit court. This appeal is from the circuit court’s judgment.

The appellants concede that the only question is whether the administrative decision is supported by substantial evidence. Ark. Stat. Ann. § 5-713 (Supp. 1971). The youth who made the actual purchase testified that in doing so he displayed to the seller, Noble Jarvis, a Selective Service card which showed the purchaser to be not quite nineteen years old. That testimony was corroborated by another youth, who was present, and by a State policeman, who arrested the two boys a few moments later. Noble Jarvis admitted the sale but testified that the Selective Service card showed the purchaser to be over twenty-one. It is evident that the administrative decision, upon conflicting testimony, is amply supported by substantial proof.

Affirmed.


author: Lyle Brown, Justice.

text:
    Matthew (Mack) HEUSTESS and O. J. GANDY Jr. v. Mary E. OSWALT
    5-6105
    488 S.W. 2d 707
    Opinion delivered January 8, 1973

      Knox Kinney, for appellants.

      Giles Dearing, for appellee.
   Lyle Brown, Justice.

This is an adverse possession case. The trial court held that appellee Mary E. Oswalt (plaintiff below) had by adverse possession acquired title to fifteen acres to which appellant O. J. Gandy, Jr., recently acquired record title from his co-appellant, Heustess. For reversal appellants contend (1) that the claim of appellee was not adverse to her brother, Matthew Heustess, (2) that there was no adverse possession for the full statutory period, (3) that the entry was permissive, and (4) that the findings of the court were not supported by clear, cogent, and convincing evidence.

Matthew Heustess and Mary Oswalt are brother and sister. In 1960 Mary took title to a quarter section of land on which she had resided for several years. W. E. Heustess owned the quarter section which joined Mary on the east. He had owned it since 1923. (W. E. Heustess was an uncle of Matthew and Mary). W. E. Heustess died in 1955, and his widow, Maude, held the life estate until her death in 1968, at which time Matthew Heustess, the remainderman, became the owner. Matthew took possession in 1968. When Mary assumed ownership of her quarter section in 1960, some fifteen acres (the land in dispute) of Matthew’s quarter section was attached to her land by a fence. Throughout her testimony Mary says her claim to the land in dispute originated in 1960, the year she acquired her title to her quarter section. The chancellor decreed that Mary had, by clear and convincing proof, established that she had held tlje fifteen acres as against Matthew for the statutory period.

It would serve no useful purpose to detail the evidence of the sixteen witnesses, most of that testimony being confined to the question of Mary’s activities in connection with the disputed acreage. In our view,, a single point of law, based on undisputed facts, is dispositive of the case. The undisputed facts are that Aunt Maude held a life estate in Matthew’s quarter section from 1955 until her death in 1968; Matthew was the remainderman and of course his title came into being with Aunt Maude’s death. The statute of limitations could not begin to run against the remainderman until the death of the holder of the life estate. The rule, and the reason therefor, are well stated in 3 Am. Jr. 2d Adverse Possession § 227:

A remainderman having no right to possession until the death of the life tenant, or not being bound to enter until then in order to establish his claim against interference with an easement of way appurtenant to the property, is not barred by adverse possession which might result against the life tenant. Thus, where there is possession of land subject to a life estate, the statute of limitations does not generally run against remaindermen until the life estate is terminated, for until then the possession is not adverse as to them, since they do not have a right of entry and possession until the life estate is ended.

Our court adheres to the recited rule. Luster v. Arnold, 249 Ark. 152, 458 S.W. 2d 414 (1970); Smith v. Kappler, 220 Ark. 10, 245 S.W. 2d 809 (1952); Hamilton v. Farmer, 173 Ark. 341, 292 S.W. 683 (1927); Meadows v. Hardcastle, 219 Ark. 406, 242 S.W. 2d 710 (1951).

The cause is reversed with directions to enter a decree not inconsistent with our holding.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Curtis ALLEN v. STATE of Arkansas
    5784
    488 S.W. 2d 712
    Opinion delivered January 8, 1973
    [Rehearing denied February 12, 1973.]

      George Howard Jr., for appellant.

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Curtis Allen, 19 years of age, was found guilty of the rape of an eight-year-old female. The jury fixed the degree at rape in the first degree and the punishment at life imprisonment. Appellant contends that this finding and sentence should be reversed upon the following grounds:

I. The trial court committed error in denying appellant’s motion for mistrial.
II. The trial court abused its discretion in permitting the prosecutrix, age 8 years, to testify.
III. Arkansas Statute, Section 41-3401 — Degrees of Rape — is void for vagueness.
IV. The trial court erred in refusing to transfer appellant’s case to juvenile court.

We find no reversible error. We will discuss the grounds for reversal in the order listed.

I.

During voir dire examination of jurors the circuit judge made the statement that the appellant was on trial in a capital case and that the penalty for the crime charged was electrocution or life imprisonment. Appellant’s attorney was granted a conference in chambers at which he moved for the declaration of a mistrial. After returning to the courtroom, the judge made the following statement:

The court wants to correct an erroneous statement, and this is especially to the number of the jury that have already been seated and to the prospective jurors, an erroneous statement for the record for the penalty for first degree rape, the penalty for first degree rape is death by electrocution or thirty years to life. The court misstated that while ago and I want to correct that statement.

Appellant’s reliance upon Bagley v. State, 247 Ark. 113, 444 S.W. 2d 567, to support a reversal here is unwarranted. There this court held that errors in a statement of the trial judge, prior to voir dire examination of jurors, relating to the crime and the jury’s options as to punishment were not cured by the judge’s explanation of the forms of verdict submitted to them at the conclusion of the trial and instructions about their use by the jury. In Bagley, however, we pointed out that the damage to the defendant could only have been removed by an equally positive statement of correction of a stature equivalent to that of the original erroneous statement. Here that cure was promptly and correctly administered by the trial judge.

II.

The question pertaining to the testimony of the eight-year-old prosecutrix is probably the most difficult one presented. Preliminary examination of the child victim disclosed that she knew where she lived and her birth date, and was in the second grade at Central Elementary School in Dumas. She was later held to be a competent witness, over the objections and exceptions of appellant, after the following questions and answers:

Q. Do you know what it means to tell the truth?
A. Yes sir.
Q. And will you tell the truth?
A. Yes sir.
Q. Do you know what will happen if you do not tell the truth?
A. Yes sir.
Q. What?
A. You will get punished.

The record discloses that the witness later testified that she attended church and Sunday School regularly and believed in God. Appellant points out that during the course of her examination, the witness failed to answer seven questions, and responded to seven others by nodding her head and to three by shrugging her shoulders.

We agree with the state that the record reveals that the witness, through her testimony, gave evidence of her ability to receive, retain and transmit to the jury accurate impressions. Her failure to answer questions usually occurred when she was called upon to name the intimate parts of her anatomy and that of her assailant. The nodding of her head occurred on both direct and cross-examination in response to some material questions and some immaterial ones. In some instances, the material questions had been or were later fully answered by the witness, and others answered by head-nodding were shown to have been affirmative by other testimony of the child indicating her understanding of the questions and an intention to give affirmative answers. One of the shoulder-shrugging answers was accompanied by the words “I don’t know,” and another came when she was asked why her assailant pulled her panties down, and the third had to do with the depth of the penetration. Her conduct in this respect appears to have been little different from that of many adult witnesses who testify in such matters as these.

There has never been a precise age fixed by our law for declaring a child either a competent or an incompetent witness in a criminal trial. The trial court has a wide latitude of discretion in determining the competency of such a witness, the exercise of which will not be disturbed upon appeal in the absence of clear abuse. Harris v. State, 238 Ark. 780, 384 S.W. 2d 477. See also, Edington v. State, 243 Ark. 10, 418 S.W. 2d 637. With reference to age, we have always, in criminal cases, followed the common law rule that one under the age of 14 years was not to be presumed to have common discretion and understanding required for competency as a witness, and that inquiry should be made of such a proposed witness as to the degree of understanding possessed by him, in order that the court may ascertain whether he appears to have sufficient natural intelligence and instruction to comprehend the nature and effect of an oath to permit him to testify. Payne v. State, 177 Ark. 413, 6 S.W. 2d 832; Flanagin v. State, 25 Ark. 92. In Batchelor v. State, 217 Ark. 340, 230 S.W. 2d 23, we quoted the rule governing competency of a child’s testimony from Hudson v. State, 207 Ark. 18, 179 S.W. 2d 165, where we said:

* * * if the child-witness, when offered, has capacity to understand the solemnity of an oath and to comprehend the obligation it imposes, and if in the exercise of a sound discretion the trial court determines that at the time the transaction under investigation occurred the proposed witness was able to receive accurate impressions and to retain them to such an extent that when testifying the capacity existed to transmit to fact-finders a reasonable statement of what was seen, felt or heard — then, on appeal, the Court’s action in holding the witness to be qualified will not be reversed.

As to the requirement of understanding the nature and effect of the oath, we said in Crosby v. State, 93 Ark. 156, 124 S.W. 781, that the child must be under an immediate sense of his responsibility to God with a conscientious sense of the wickedness of falsehood. But this court has found no abuse of discretion in the trial court’s determination of competency where the child realizes that he is obligated to tell the truth and that he will be punished for not doing so, i.e., that he will be punished for not telling the truth because telling falsehoods results in punishment. In Crosby, the witness did not know what the consequences of his failure to testify truthfully would be and was not asked anything from which it could be inferred that he had a sufficient sense of the danger and wickedness of false swearing or that he comprehended and appreciated the sanctity and obligation of an oath. In DeVoe v. State, 193 Ark. 3, 97 S.W. 2d 75, we had this to say regarding and eight-year-old prosecutrix in a rape case:

As to her competency, it may be said, first, that her competency was peculiarly within the trial court’s discretion, and the trial court’s ruling on the question will not be disturbed unless there was a gross abuse of discretion * * *. The witness in the present case was eight years old, appeared to be intelligent, to understand what was meant by an oath, and she testified intelligently. We are of the opinion that the trial court did not abuse its discretion in permitting the witness to testify.

We cannot say that there was an abuse of the judge’s discretion in this case. Our view in this regard is bolstered by the apparent intelligence of the witness disclosed by her testimony and the responsiveness of her answers to the questions propounded to her.

III.

Appellant argues that, since a male rqay be found guilty of rape in the third degree when he engages in sexual intercourse with a female less than 16 years of age, of rape in the second degree if he is over the age of 18 years and engages in sexual intercourse with a female less than 14 years of age, and of rape in the first degree if he engages in sexual intercourse with a female less than 11 years of age, the statute [Ark. Stat. Ann. § 41-3401 (Supp. 1971)] is void for vagueness because it affords no meaningful or material guidelines for distinguishing the three degrees of rape. Our examination of the statute does not support the assertions in appellant’s brief that it is a mass confusion of ambiguities and uncertainties and inexplicable contradictory statements. It seems clear to us that the state’s interpretation of the statute is correct. The statute defines rape in the first degree as sexual intercourse by a male person of any age with a female of any age accomplished by forcible compulsion, or without compulsion when the female is incapable of consenting by reason of physical helplessness or mental incapacity, or is under the age of 11 years. Rape in the second degree, then, is sexual intercourse by males over 18 years of age with females between the ages of 11 and 14, with or without their consent. Rape in the third degree is carnal abuse of a female less than 16 years old by a male of any age, or sexual intercourse by a male of any age with a female between the ages of 14 and 16, or sexual intercourse by a male under the age of 18 with a female between the ages of 11 and 14, without regard to the consent of the female in any case.

IV.

There was testimony by a “psychological examiner” who is licensed by the state to practice psychometrics and who examined Allen when, upon appellant’s motion, he was committed to the custody of the sheriff of Jefferson County for mental examination by the Southeast Arkansas Mental Health Clinic. This witness stated that the mental or intellectual age of appellant, according to the Weschsler Adult Intelligence Scale and Peabody Picture vocabulary test, was “approximately 9.6 years of age, somewhere in there,” even though his chronological age was 18. This, he said, meant that “mentally he [Allen] is perceiving and functioning as a nine- or ten-year-old individual with reference to judgment, insight, general information, abstract reasoning ability, and, in this case, the psychomotor and perceptional functions.” Before trial, appellant had moved that the information charging him be quashed or, in the alternative, that the case be transferred to the juvenile court. His motion was based upon psychiatric and psychological evaluations at the Southeast Arkansas Mental Health Center. The psychiatric evaluation filed with the court concluded that Allen was mentally retarded, functioning at the mental age of 9.4, without insight, was possessed of extremely poor judgment and that his behavior was based on impulses. The psychological evaluation by the examiner who testified at the trial was based upon the following tests:

Weschsler Adult Intelligence Scale
Peabody Picture Vocabulary
Bender Visual Motor Gestalt Test
House-Tree-Person
Incomplete Sentence Blanks
Rorschach
MMPI
Clinical Interview

The examiner recorded this diagnostic impression: “Mental retardation, mild, associated with behavioral reactions.” The examiner’s summary was that Allen was mildly mentally retarded, knew right from wrong and was capable of feeling remorse for his behavior, but his decision making and goal-directed behavior were based on impulses and his consideration of the possible circumstances of his actions doubtful. He did not appear to the examiner to be a sociopathic individual.

Appellant also points out that a 14-year-old sister of the prosecutrix described Allen as childish in conduct, physical appearance and activities and that a 16-year-old witness bearing the same surname as his gave testimony that would indicate that appellant’s activities were rather childish. It should be noted that the 16-year-old, when asked how old Curtis Allen acted, responded “18.” Appellant also calls our attention to the fact that the court recessed the trial and conducted an in camera hearing because, during the opening statements to the jury, appellant was sitting with his face down on the table folded in his arms as if he were asleep. The judge attempted to determine whether there was some reason for Allen to sit in the courtroom in this position rather than the normal upright position.

As the basis for his motion in the trial court, appellant contended that his prosecution is barred by Ark. Stat. Ann. § 41-112 (Repl. 1964), providing that an infant under 12 years of age should not be found guilty of any crime or misdemeanor. In his brief here, he argues that requiring him to stand trial was an abuse of the trial court’s discretion and his commitment to the State Department of Correction was cruel and unusual punishment in violation of Article 2, Section 9 of the Arkansas Constitution and of the Eighth Amendment to the United States Constitution, as applied to the states by the Fourteenth Amendment.

Even though the argument advanced in the trial court seems to have been abandoned here, we have no hesitancy in stating that the age prescribed by Ark. Stat. Ann. § 41-112 means chronological age, not some “mental” age arrived at by psychological tests and expressive, at least to some extent, of an examiner’s opinion. We have set out the record on this point at some length to demonstrate that any variation from chronological age as the basis of one’s absolute immunity from criminal responsibility, in the absence of insanity, cannot result from judicial action rather than through the General Assembly where investigative processes can be utilized, not only to ascertain the propriety of such action but to prescribe appropriate standards for the determination of immunity from prosecution because of infancy or immaturity. We find no abuse of discretion in putting appellant to trial and no violation of constitutional inhibitions against cruel and unusual punishment.

The judgment is affirmed.

       It should be made clear that appellant asserted a defense of insanity at his trial and that the court gave appellant's requested instruction as to this defense, but refused to state the substance of Ark. Stat. Ann. § 41-112 to the jury. The defense of insanity was rejected by the jury, and appellant properly does not base his argument here upon that particular defense.