author: John A. Fogleman, Chief Justice.

text:
    M.B.M. COMPANY, INC. v. Shirley Ann COUNCE
    79-313
    596 S.W. 2d 681
    Supreme Court of Arkansas
    Opinion delivered March 24, 1980

      Parker & Henry, for petitioner.

      Barrett, Wheatley, Smith & Deacon, for respondent.
   John A. Fogleman, Chief Justice.

Shirley Ann Counce appealed from a summary judgment against her in her suit against M.B.M. Company, her former employer, to recover damages for wrongful discharge and for intentional infliction of emotional distress. Because we find a material issue of fact as to intentional infliction of emotional distress, we affirm the action of the Court of Appeals reversing the judgment and find no error in that court’s holding.

In her complaint, respondent Counce alleged that, on February 2, 1977, she was “laid-off” from her employment by petitioner at Coleman’s Bar-B-Q, its place of business in West Memphis, supposedly because her services were no longer needed but that she was subsequently told by an employee of petitioner that she must submit to a polygraph examination in connection with a money shortage on the last day she worked. She further alleged that she passed the test and demanded her wages for her last 17 hours of work, but when she received her pay check it amounted to only $.081 after an unexplained deduction of $36, which was later explained as being her share of the money which was missing on February 2. She asserted that these actions by petitioner were an intentional course of conduct designed to cause severe emotional distress, and that her termination was in retaliation for alleged stealing and a breach of the employment relationship and in violation of public policy.

M.B.M. moved for summary judgment on the basis of the discovery deposition of Ms. Counce and those of Jerrell Coleman Moss, area supervisor for M.B.M., who was in charge of the West Memphis store, and Porter Moss, president of M.B.M. Since we are considering a summary judgment, we will view this evidence in the light most favorable to Shirley Ann Counce, against whom it was rendered.

Ms. Counce was employed by M.B.M. at the West Memphis store on January 17, 1977. The store manager was Jan Hylander. Between the closing of the business on February 1, 1977 and its reopening the following day, $99.00 in money and checks were missing. Ms. Counce had been assigned to the cash register on that evening. She had no knowledge the money was missing until the store manager called her on the morning of February 2. When Ms. Hylander asked her if she had put all the money and checks together as she was supposed to do, Ms. Counce answered in the affirmative. Later Ms. Hylander called Ms. Counce and told her that she was laid off because Ms. Hylander had too much counter help. Shortly thereafter, Ms. Counce called and asked Ms. Hylander about her pay, but was told that she would have to take a polygraph test before the company would release her check. She went to Memphis and submitted to the test, which was arranged by Coleman Moss. The polygraph operator told her that she had passed and that M.B.M. would have to release her paycheck. The next day she picked up her check for the previous week’s work. A week later she picked up her check for the last 17 hours she had worked. When she noticed that it was for only $0.81, she went back to Coleman’s Bar B-Q and asked Jan Hylander why it was for that amount but was told that she whould have to talk to Coleman Moss. Ms. Counce then called him on the telephone, asked why her money was withheld and told him that she had passed the test and needed her money. Coleman Moss responded, “I need mine, too.”

Ms. Counce applied for unemployment benefits and gave the same reason for her discharge that she had been given by Jan Hylander. She was denied benefits because the employer had stated that she was laid off because of numerous customer complaints, a bad attitude and violation of company rules and policies. At the time Ms. Counce was discharged, M.B.M. was advertising for counter help in the West Memphis newspaper.

Coleman Moss stated that the reason Ms. Counce was dismissed was because there were two customer complaints about her service, but he did not know the name of either customer. Ms. Counce never had any problems or arguments with customers. The deduction from her pay was one-third of the missing money and the president of the company made the decision to withhold it. After an investigation by the Labor Department, this amount was paid to Ms. Counce. Coleman’s Bar B-Q did not have excess counter help when she was discharged. No one ever said that Ms. Counce had stolen the missing money.

The written employment agreement between Ms. Counce and the company provided that she could be discharged at any time, without notice. In that contract, she consented, if she were employed, to submit to a polygraph test at any time during her employment and she understood that employees of Coleman’s might be required to take such tests.

Ms. Counce first argues that there was a breach of the employment relationship in violation of public policy. This is but another way of saying that M.B.M. breached the contract of employment. She relies to some extent upon cases holding that discharge of an employee for filing a worker’s compensation claim, for refusing to “go out” with her foreman, for going on jury duty, or for refusal to commit perjury, is a breach of contract. She contends that, upon the authority of such cases, she has stated a cause of action in contract. We might well agree with Ms. Counce if there was any indication that she was discharged for exercising a statutory right, or for performing a duty required of her by law, or that the reason for the discharge was in violation of some other well established public policy. That simply is not the case here. Since it is not, our holdings in such cases as Miller v. Missouri Pac. Transportation Co., 225 Ark. 475, 283 S.W.2d 158, lead us to hold that Ms. Counce has failed to establish a cause of action for breach of contract. In that case, the court relied upon the rule that, where no definite térm of employment is specified in the contract of employment, and in the absence of other circumstances controlling the duration of the employment, the contract is terminable at will of either party. That rule has greater impact when, as here, the contract specifically authorizes the employer to terminate the contract at will. In the absence of violation of some clearly established public policy, we join the Supreme Court of Utah in declining an invitation to remake the contract between the parties or to somehow devise a basis for relief whenever one party to a contract can show injury flowing from the exercise of a contract right by the other. Mann v. American Western Life Ins., Co., 586 P.2d 461 (Utah 1978).

This is not a case in which there was injury resulting from a physical impact, so appellant’s right to recover damages for emotional distress depends upon the existence of a cause of action to recover these damages when distress is not merely “parasitic” as an element of damages for physical injury. The idea that a recovery should be permitted in some cases of this sort is not novel. In 2 Harper & James, The Law of Torts 1033, § 18.4 (1956), the authors said:

The more recent trend, in the British Empire as well as America, has been away from this mechanical requirement of impact. Where defendant’s conduct is intentional, or willful and wanton, or constitutes a technical trespass or other legal wrong (which is complete without a showing of damage), recovery has often been allowed for emotional disturbance and its consequences. This has been so for a long time, but there has been an extension of liability along this line in recent years. ***

In a footnote, the authors state that the oldest example was a case decided in 1348.

The concept of allowing recovery of damages for mental distress and injured feelings is not completely new in Arkansas. We upheld a recovery for mental suffering which was unaccompanied by any physical injury in Wilson v. Wilkins, 181 Ark. 137, 25 S.W.2d 428. Although we recognized that in actions for negligence there can be no recovery for mental suffering where there has been no physical injury, we said:

The rule is well settled in this state, but it has no application to willful and wanton wrongs and those committed with the intention of causing mental distress and injured feelings. Mental suffering forms the proper element of damages in actions for willful and wanton wrongs and those committed with the intention of causing mental distress.

Our holding in Wilson is not controlling authority for a holding that Ms. Counce has a cause of action against M.B.M., because the actionable wrong recognized in that case was wilfull intimidation of the plaintifTs rights of personal security and of private property. The cause of action was based upon threats of the defendants that, if the plaintiff did not leave the community in which he lived, they would put a rope around his neck. Later in Geyer v. Western Union Telegraph Co., 192 Ark. 578, 93 S.W.2d 660, we again recognized the rule that, under the common law, there can be no recovery for fright or mental anguish caused by mere negligence, but that a recovery may be had where fright or mental anguish is caused by wilful conduct. In that case damages for mental anguish and fright were not sought, but we upheld a recovery for physical pain and injury attributable to the inability of the plaintiff to attend her brother’s funeral because she was misled by an incorrect transmission of a death message.

Our statement in Wilson either overlooked or disregarded our previous holding in St. Louis, I. M. & S. Ry. Co. v. Taylor, 84 Ark. 42, 104 S.W. 551, 13 LRA (n.s.) 159, the very case distinguished in the opinion. We actually held in Taylor that there could be no recovery for mental anguish unaccompanied by physical injury or some other recoverable elements of damage and that an independent action for damages for mental anguish and humiliation would not lie, even though the violation of duty made the basis of the complaint was wilful. Authorities supporting this view were set out in the Taylor opinion and the same rule was followed in such subsequent cases as Chicago, Rock Island & Pacific Ry. Co. v. Moss, 89 Ark. 187, 116 S.W. 192, and Pierce v. St. Louis, Iron Mt. & S. Ry. Co., 94 Ark. 489, 127 S.W. 707. In the latter case, we explicitly declined an invitation to overrule Taylor in this respect.

We had also held that the use of impolite and insulting language which caused humiliation and mental suffering was not actionable where there was no physical injury, even though we recognized that there are cases where there could be recovery for mental suffering coupled with a “constructive physical injury,” such as duress or coercion, where there is no physical violence but an actual restraint or coercion. Chicago, Rock Island & Pacific Ry. Co. v. Moss, 89 Ark. 187, 116 S.W. 192. We followed this constructive physical injury theory in Arkansas Motor Coaches, Inc. v. Whitlock, 199 Ark. 820, 136 S.W.2d 184, holding that the act of a bus driver in laying his hand on a passenger in leading him from the bus, humiliating and embarrassing him before the other passengers, constituted an actionable wrong for mental anguish for which the coach company would be liable. We had also held that mental anguish was not a recoverable element of damages when three plaintiffs were unable to attend the funeral of a close relative due to their being prevented from boarding a train, because we could find no causal connection between the mental anguish suffered solely because of their being delayed and the physical pain suffered from illnesses contracted by the plaintiffs as a consequence of the same act of the defendant railroad. Chicago, Rock Island & Pac. Ry. Co. v. Mizell, 118 Ark. 153, 175 S.W. 396.

Wittingly or unwittingly, we departed from the parasitic requirement in Wilson and there are subsequent holdings by this court that where the defendant’s action constituting the wrong is wanton or wilful, there may be a recovery for humiliation and mental suffering. When we held in Rogers v. Williard, 144 Ark. 587, 223 S.W. 15, 11 ALR 1115, that there could be recovery for bodily pain and suffering resulting from fright caused by a wilful wrong, we pointed out that we had not overruled St. Louis Iron Mt. & S. Ry. Co. v. Bragg, 69 Ark. 402, 64 S.W. 226, 86 Am. St. Rep. 206 in Taylor, Moss or Pierce. We found that it was inferable from Bragg that there could be recovery for bodily injuries from fright caused by a wilful tort or wanton wrong. We moved a little further toward the rule relied upon by respondent in Erwin v. Milligan, 188 Ark. 658, 67 S.W.2d 592, where we held that a married woman could recover damages for shock to her moral sensibilities and ideas of decency, nervous collapse, pain, anguish, humiliation and her physical pain and suffering and impairment of health attributable to a miscarriage because of physical shock, all of which were caused by indecent proposals made to her by the defendant. We did say in Erwin that there could be a recovery of damages for mental pain and anguish caused by wilful or intentional conduct, citing a textbook statement that damages are recoverable for mental suffering consisting in a sense of wrong or insult, indignity, humiliation or injury to the feelings where the suffering is the result of a wanton or intentional trespass on the person of a woman. We made no reference to Davis v. Richardson, 76 Ark. 348, 89 S.W. 318, in which we had reversed a judgment in favor of a female because she had been permitted to recover damages on account of indecent and insulting proposals made to her by a male, because she had suffered no physical injury.

Although we had never held that there could be a recovery for emotional or mental distress or mental suffering in the absence of a physical injury either accompanying the mental suffering or resulting from it, we were led to say by way of dictum in Chicago, Rock Island & Pacific Ry. Co. v. Caple, 207 Ark. 52, 179 S.W.2d 151, that where the action of the defendant is wanton or wilful there may be a recovery for humiliation and suffering without any physical injuries, citing Erwin, Rogers, and Lyons v. Smith, 176 Ark. 728, 3 S.W. 2d 982, none of which is outright authority for the statement. In Lyons, there had been a recovery of actual damages for loss of use of the plaintiffs property and of exemplary damages for humiliation and mental suffering.

It was not until we decided Olan Mills, Inc. v. Dodd, 234 Ark. 495, 353 S.W. 2d 22, that we actually sustained an award for humiliation, embarrassment, mental anguish and loss of weight from worry and lack of sleep. There we relied upon the dictum in Caple for stating that, in some instances, we had held there may be recovery for humiliation and mental suffering in the absence of any physical injury. We held that there might be such a recovery in an action for invasion of privacy “just as in cases of wilful and wanton wrong.” It must be acknowledged, however, that one of the elements supporting the plaintiffs recovery in that case was a physical factor, i.e., loss of weight resulting from worry and lack of sleep, another physical manifestation.

We carried the constructive physical injury theory to its ultimate limits in holding that a complaint of a married woman seeking damages for worry, humiliation, distress of mind, public shame and degradation, by reasons of the actions of a hotel manager in wrongfully ordering her out of the room to which she and her husband had been assigned and out of the hotel by insulting and abusive language falsely imputing adultery to her, stated a cause of action. Stevenson v. John J. Grier Hotel Co., 159 Ark. 44, 251 S.W. 355. The constructive physical injury was based upon her leaving the hotel before restraint and coercion by the manager became actual rather than constructive.

The evolutionary process demonstrated by our own decisions culminating in such holdings as those in Wilson, Rogers, Erwin, Caple and Olan Mills, caused Prof. William T. Prosser to say, in 1939, that it was time that the courts recognize that they had created a new tort. Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Michigan Law Review 874. He theorized that there was no necessity that a tort have a name. According to him, the new tort consisted of intentional, outrageous infliction of mental suffering in the extreme form and that it resembled assault. He pointed out that, in spite of the fact that mental anguish had been recognized in early assault cases, the law had been reluctant to accept interest in peace of mind as entitled to independent legal protection. He described the matter dealt with in this new tort as outrageous conduct of a kind especially calculated to cause serious mental and emotional disturbance. Prof. Prosser pointed out that in many cases in which recovery for mental suffering was permitted as parasitic damage, that element was the only substantial damage actually sustained. Our cases are certainly illustrative of this statement. Prof. Prosser pointed out that the courts had strained (as this court certainly has) to find a technical battery, an assault, a false imprisonment, a trespass or even an invasion of the right of privacy “as a bare excuse” to permit recovery for mental injury, when it was the only substantial damage suffered. Chief Judge Henley, after reviewing our cases, including Caple, Wilson, Rogers, and Bragg, in Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688 (E.D. Ark., 1959), correctly concluded that Arkansas was an “impact” state, even though the impact could be constructive.

The California Supreme Court took the step recommended by Prof. Prosser in State Rubbish Collectors Ass’n. v. Siliznoff, 38 Cal. 2d 330, 240 P.2d 282 (1952). Justice Traynor, speaking for the court, reviewed the evolutionary process by which the interest in mental and emotional tranquility and freedom from mental and emotional disturbance was converted from a thing of insufficient importance to require others to refrain from conduct intended to cause such a disturbance, to the exact opposite, so that conduct intended to invade freedom from severe emotional distress is now tortious. This transition was also reviewed in George v. Jordan Marsh Co., 359 Mass. 244, 268 N.E.2d 915, 46 ALR 3d 762 (1971). The Massachusetts court there recognized the tort but clung to the requirement that there be bodily harm. Only five years later the Supreme court of Massachusetts said that it had concluded that the extension of its recognition of the existence of a cause of action for intentional infliction of severe emotional distress to cases in which there was no bodily injury was both warranted and desirable. The Supreme Court of Missouri, recognizing that it had previously accepted the view that a right of action does exist for damages for severe emotional distress intentionally caused by conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community, first held that such a cause of action had been stated in Warrem v. Parrish, 436 S.W.2d 670 (Mo., 1969). The Tennessee Supreme Court recognized the “new tort” in Medlin v. Allied Investment Co., 217 Tenn. 469, 398 S.W. 2d 270. Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759 (1961) is another case in which the intentional infliction of emotional distress has been specifically recognized as a tort.

It was Prof. Prosser’s theory that the problems inherent in allowing such recoveries could be more intelligently dealt with if we were to jettison the entire cargo of technical torts with which the real cause of action has been burdened and recognize and treat the intentional infliction of extreme mental suffering by outrageous conduct as a separate and independent tort. Nearly 20 years later, Prof. Prosser was able to say that it appeared to be quite generally recognized that the nameless wrong which was usually called the intentional infliction of mental suffering, or mental anguish, or mental disturbance or emotional distress was entitled to be recognized as a separate tort. Prosser, Insult & Outrage, 44 Cal. L. Rev. 40 (1956). See also, Magruder, Mental & Emotional Disturbance in Torts, 49 Harv. L. Rev. 1033 (1936).

It is not a long step from Wilson, where we found some remote actionable wrong or from Olan Mills, where we resorted to the right of privacy to support an award to an outright recognition of intentional infliction of emotional distress. In Restatement of Law, Torts 2d, § 46, p. 71 et. seq, the tort is recognized.

We need only to abandon our strained efforts to find a tort or a theoretical physical impact or injury and the consequent tenuous reasoning in order to justify the award of damages for mental anguish. By doing so, we can and do now recognize that one who by extreme and outrageous conduct wilfully or wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress.

It is of little consequence that different terms are used in describing the element of compensable damages involved as mental suffering, mental anguish, emotional distress, etc. Prof. Prosser sees the term mental anguish comprehensive enough to cover everything from nervous shock to emotional upset, and agrees that the words emotional distress may well be used. In his view they include all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, anger, embarrassment, chagrin, disappointment, worry and nausea. Prosser, Insult & Outrage, 66 Cal. L. Rev. 43 (1956). See also, Restatement, Torts 2d 22, § 46, Comment j. The emotional distress for which damages may be sought must be so severe that no reasonable person could be expected to endure it. It must be reasonable and justified under the circumstances. Liability arises only when the distress is extreme. Restatement, Torts 2d 78, § 46, Comment j.

By extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. See Restatement of the Law, Torts, 2d 72, § 46, Comment d.

Since we recognize the tort of intentional infliction of emotional distress, we conclude that granting a summary judgment was error. Ms. Counce has no cause of action for intentional infliction of emotional distress because of petitioner’s action in discharging her, because petitioner is not liable for doing that which it had the legal right to do. Restatement, Torts 2d 76, § 46, Comment g; Prosser, Insult & Outrage, 44 Cal. L. Rev. 40, 49.

M.B.M.’s conduct subsequent to her discharge is a different matter. Prof. Prosser states that there are cases in which the extreme and outrageous nature of the conduct arises not so much from what is done as from the abuse by the defendant of a relationship with the plaintiff which gives him power to damage the plaintiffs interests. Prosser, Insult & Outrage, supra, 47. Certainly there was such a relationship so long as Ms. Counce was not paid for her work until the time of her discharge. Such a relationship also existed with reference to her entitlement to unemploymet compensation benefits. The facts disclose that, in order to receive her pay, Ms. Counce was forced to submit to a polygraph test after her employment had been terminated and to cause a labor department investigation to collect $36 of the $36.81 due her. There is, at this point, no satisfactory explanation of the basis for withholding this money after she had passed the polygraph test. The different reasons given for her discharge are a significant circumstance, particularly when Coleman Moss’ unsatisfactory explanation of the basis for the statement made by M.B.M. to the Employment Security Division is taken into account. We have no hesitation in saying that there was a material issue of fact as to whether M.B.M.’s conduct was extreme and outrageous.

The question of severe emotional distress is another matter. We can say with assurance that there is no issue of fact on humiliation, because Ms. Counce has eliminated that sort of distress by her own testimony.

Perhaps we should not say that the element of bodily harm is totally eliminated but it seems certain from respondent’s testimony that her bodily harm was slight, if existent at all. We cannot say, with the degree of certainty that we should where summary judgment is involved, that there is no material issue of fact as to her unpleasant mental reactions such as anguish, shock, anger, embarrassment, chagrin, disappointment or worry.

We agree with the Court of Appeals that the summary judgment must be reversed. The cause is remanded to the Court of Appeals with directions to remand it to the trial court for further proceedings not inconsistent with this opinion.


source: Caselaw Access Project

author: John A. Fogleman, Chief Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Robert SMITH v. STATE of Arkansas
    CR 79-200
    595 S.W. 2d 671
    Supreme Court of Arkansas
    Opinion delivered March 24, 1980

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

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Chief Justice.

Appellant was found guilty of violation of Ark. Stat. Ann. § 41-2102 (Repl. 1977) by threatening to immediately employ physical force against Betty English, an employee of the Seven-Eleven store at Eighteenth & Main, North Little Rock, with the purpose of committing a theft, having a gun in his possession at the time. He was sentenced to a term of 50 years’ imprisonment. Appellant asks us to reverse that judgment upon two grounds. He says that the court erred by denying consideration by the jury of a verdict of not guilty and by excluding a portion of an instruction requested by him. We find no prejudicial error and affirm.

There was not only substantial evidence that appellant committed the crime, but appellant took the witness stand and testified that he had committed the robbery and that he was armed at the time, but said that he was under the influence of drugs and had been drinking beer. He said that he never used physical force, pulled the weapon or pointed it at the “girl,” or even represented to her that he had the weapon or that he would kill her if she didn’t give him the money. He said that when she began “hassling” him about the money, he was about to leave, but looked out over the fog on the window and saw the top of a police car. He said that he did not see a police officer approaching him with a riot gun until that officer had jumped out of the car and appellant had opened the door. Appellant said that he retreated into the store, took the weapon out of his britches and put it on a stack of cans because he did not want to be found with it, knowing exactly what the officer would do if he had been seen with it in his hand. He said he had gone into the store to rob it but that he was caught before he could get out and he never took the money outside the front door.

He also testified on direct examination that he had been convicted of prior felonies—burglary and grand larceny, assault with intent to rob and armed robbery. He said he knew that, because he had taken the witness stand, the jury was going to find out about these prior convictions and that he could have avoided the jury’s knowing about them, if he had not taken the witness stand. He explained that some of his prior convictions were “just neighborhood type situations” in which the alleged victims also went to the penitentiary.

Appellant stated he knew the jury was going to find him guilty but that he couldn’t plead guilty because he wanted the jury to decide his sentence. He told the jury that, because he was an habitual offender, he would not be eligible for parole as others were, but would have to serve “whatever I get.” He explained that he had been employed at the time of the “incident” but “goofed up” again and got to drinking and had been taking Valium and drinking on the day of the robbery.

In order to properly evaluate appellant’s arguments, it is necessary that we consider his trial strategy. Not only did he testify that he had decided to let the jury fix his sentence, he said that he felt more comfortable with a jury of 12 deciding “on me.” He also made a plea for leniency by pointing out that he had a drinking problem, but had conquered a drug problem. He told the jury that he had been treated in the state hospital for alcohol abuse. Virtually all this information was given during his direct examination.

In closing argument, appellant’s trial attorney (who is not his attorney on appeal) opened with a statement that “honesty is the best policy*” reminded the jurors that at the beginning of the case he had told them that there were only two issues to be decided, i.e., whether Smith was guilty of aggravated robbery or of criminal attempt to commit robbery and the extent of the punishment to be imposed. He pointed out that the jury had five options but that the fifth one, a finding of not guilty, was not actually an option. He said that Smith was only asking the jury to make the punishment fit the crime but not “to let him loose.” He said that Smith was guilty.

After the jury retired, this attorney, in Smith’s presence, advised the court that Smith had instructed him to argue to the jury and base his defense on the fact that Smith was in fact in the store, and was guilty of some offense, but not aggravated robbery. Smith confirmed the attorney’s statement and said that he had advised the attorney to argue that he was not guilty of aggravated robbery, but that he was in fact guilty of “going and robbing the place.”

The form of verdict submitted to the jury provided for findings of guilty or not guilty of aggravated robbery, robbery, criminal attempt to commit aggravated robbery, or “criminal attempt to robbery.” The trial judge told the jury that it could disregard the form for not guilty of aggravated robbery, because Smith had admitted he was guilty of something. Appellant’s attorney then stated that he was not sure that he understood the judge’s comment about “the jurors disregarding what.” The judge responded that there was an admission of guilt of criminality and that a not guilty verdict should not be considered by the jury. No objection was made to either statement by the judge.

Appellant now argues that the judge commented on the evidence, and in effect, directed a verdict of guilty. The attorney’s inquiry cannot be transformed into an objection as appellant would have us do. He would also have us ignore the fact that he made no objection, on the ground that plain error was committed, relying on Ark. Stat. Ann. § 43-2725.2 (Repl. 1977) and Camp v. Arkansas, 404 U.S. 69, 92 S. Ct. 307, 30 L. Ed. 2d 223 (1971).

We have no “plain error” rule and Camp certainly does not require one. We do not take § 43-2725.2 to mandate such a rule. Just a few months ago—long after the adoption of that section of the statute—we held that an appellant is barred from arguing a point not supported by an objection in the trial court. We overlook a failure to object in the trial court only when the error is so great the trial judge was under a duty to correct his own action immediately and when no objection or admonition could have undone the damage or erased the effect of his error from the minds of the jurors. Wilson v. State, 261 Ark. 820, 552 S.W. 2d 223. We pointed out in Wilson that even that practice should be indulged in with great caution and invoked only to avoid a clear miscarriage of justice.

Appellant correctly contends that the statements of the judge were a comment on the evidence and his action tantamount to directing a verdict of guilty of aggravated robbery or a lesser included offense. The error was harmless beyond a reasonable doubt. A declaration of error certainly is not necessary to avoid a clear miscarriage of justice. Nor would it mandate a reversal. The trial judge’s statement conveyed no thought to the jury that was not communicated to it with greater potential impact by both appellant and his attorney. Appellant’s trial strategy was inconsistent with an objection to the judge’s statements. The verdict forms submitted to the jury still permitted a finding of not guilty, but appellant did not seek such a verdict. His deliberate strategy was to make a judicial confession to the jury in order to avoid sentencing by the judge. He is in no position to complain on appeal.

Appellant has never contended that the evidence was not sufficient to support a finding that he was guilty of aggravated robbery.

Appellant offered and the judge refused the following instruction to the jury:

You must not consider any prior trouble in which the Defendant may have been involved for any purpose other than in assessing his credibility as a witness. It is for you as jurors to say what weight you will give to the testimony of each witness.

He argues here that evidence of prior convictions is admissible only for the purpose of attacking the credibility of the witness. That is true when the evidence is offered by the state. Appellant voluntarily testified as to his prior convictions, not for the purpose of showing the jury that he was not credible, but for the purposes of impressing the jury with his honesty and sincerity and of emphasizing the fact that his eligibility for parole would be postponed on account of these convictions. Under these circumstances he was not entitled to the requested instruction, even if it is correct. The use of the words “prior trouble” casts considerable doubt about its correctness.

Since we find no reversible error, the judgment is affirmed.

Hickman and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. Appellant was on trial for aggravated robbery. He entered a plea of not guilty and was tried before a jury. The charge of aggravated robbery necessarily includes the offenses of robbery, criminal attempt to commit aggravated robbery and criminal attempt to commit robbery. Therefore, there were four possible guilty verdicts which should have been considered by the jury.

Ark. Stat. Ann. §§ 41-2102/2103 (Repl. 1977) states:

41-2102:(1) A person commits aggravated robbery if he commits robbery as defined in section 2103 (§ 41-2103) and he:
(a) is armed with a deadly weapon, or represents by word or conduct that he is so armed; or
(b) inflicts or attempts to inflict death or serious physical injury upon another person.
(2) Aggravated robbery is a class A felony.
41-2103:(1) A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.
(2) Robbery is a class B felony.

Therefore, before a person may be convicted of aggravated robbery, he must employ or threaten to immediately employ physical force upon another person AND be armed with a deadly weapon or represent he is so armed; or, inflict or attempt to inflict death or serious physical inquiry upon another person. Physical force is defined in Ark. Stat. Ann. § 41-2101 (Repl. 1977) as:

“Physical force” means any bodily impact, restraint, or confinement, or the threat thereof.

Did appellant admit or did the evidence show that he employed or threatened to immediately employ physical force upon another person? I do not think so. The appellant stated:

“At no time when I was inside the store did I use any physical force or threaten to use any physical force ... I goofed up again and got to drinking; that’s exactly what happened. I know I’m in trouble, but I didn’t take anything out of the store, and I wouldn’t try to hurt nobody . . . that day I was taking Valium. That was the only drug I was taking, but I was also drinking beer. . . .”

The above testimony certainly makes it a fact question whether the appellant employed or threatened to use force. If he neither used physical force nor threatened to immediately use physical force upon another person, he was not guilty of aggravated robbery. In fact, he would not be guilty of robbery absent such force or threat of force. Certainly, his testimony is not undisputed even though it may be uncontradicted. There is no independent testimony contradicting his statements contained in the record before us. The jury may not have believed a single word of appellant’s testimony, but it was their right and duty to give this testimony as little or as much weight as they choose. The court completely took the facts away from the jury; and, in effect, directed a verdict of guilty of aggravated robbery when the verdict forms were being read to the jury. This event occurred after the verdict on aggravated robbery was given, and the court stated:

“All right, ladies and gentlemen, it’s time for you to retire to the jury room and consider your verdict. . . The first one says:
We, the Jury, find the defendant, Robert Smith, guilty of aggravated robbery as charged in the information.
If that is your verdict, then your foreman will sign that in the place here for the foreman. The rest of these are lesser included offenses ... If you find
We, the Jury, find Robert Smith not guilty of aggravated robbery,
You can disregard that. Mr. Lee has admitted that he is guilty of something. So, you can disregard that not guilty verdict.”

The court then proceeded to instruct the jury on a finding of guilty or not guilty as to robbery, criminal attempt for aggravated robbery, and criminal attempt for robbery. In my opinion, appellant’s argument is broad enough to include the argument of insufficiency of the evidence to support a finding of guilty of aggravated robbery.

At the conclusion of the court’s verdict instruction appellant’s attorney stated:

“Your Honor, if it please the Court, I’m not sure that I understand the comment, I don’t know about the jurors disregarding what.”

These words may not be in the best form for an objection, but they do at least question the correctness of the court’s instructions and comments. This inquiry may have meant the attorney could not believe what he had heard. At the very least, the court should have considered the remarks he had just made. For reasons stated later, I do not believe an objection was necessary. I feel this error was of such magnitude that no objection was necessary. I feel the trial court was under a duty to correct his mistake immediately, and the error was so prejudicial that justice could not be served by a continuation of the trial after such a mistake. This amounts to what I call “plain error.”

Ark. Stat. Ann. § 43-2725.2 (Rep. 1977) states:

A conviction shall be reversed and a new trial ordered where the Supreme Court finds that the conviction is contrary to the Constitution, the laws of Arkansas or for any reason determines that the appellant did not have a fair trial. Where appropriate, the Supreme Court shall reverse the conviction and order the appellant discharged. In all other cases, the conviction must be affirmed, but the sentence of the appellant may be reduced if it is deemed excessive.

Thus, it is clearly stated in § 43-2725.2 that a conviction shall be reversed and a new trial ordered when the Supreme Court finds that the conviction is contrary to the Constitution, the laws of the State of Arkansas, or for any other reason determines that the appellant did not have a fair trial. We do not have to base this decision on the above statute because there is higher authority. The Constitution of Arkansas, Art. 7 § 23, states:

Judges shall not charge the juries with regard to matters of fact. . . .

I do not feel that the above constitutional provision and laws of the State of Arkansas are merely pieces of paper. I cannot understand how the majority can agree that the trial judge commented on the evidence, which violates the constitution, and directed a verdict of guilty to aggravated robbery, which is contrary to all precedent, and still uphold the conviction.

I am, at least at this time, unwilling to seat myself in the jury box, as I believe the majority has done, and pass upon the guilt or innocence of an accused. There is no doubt in my mind that had I been a juror in this case, I would have voted to convict the appellant of one of the offenses. Perhaps, I would have voted for aggravated robbery; but, it would be necessary for me to have heard some evidence of the use of force or the threat of physical force. Nothing in the record or in the majority opinion supplies this missing ingredient.

There is at least a jury question on another part of the aggravated robbery charge. That jury question is whether or not the appellant had the necessary purpose to commit the offense. Ark. Stat. Ann. § 41-203(1) (Repl. 1977} defines “purposely” as:

A person acts purposely with respect to his conduct or a result thereof when it is his conscious object to engage in conduct of that nature or to cause such a result.

I think there is at least a fact question whether the appellant possessed the requisite purpose of mind; after all, he testified he was on Valium and beer.

We have previously held a trial court may not direct a verdict of guilty when the penalty for the offense is possible imprisonment. Collins v. State, 183 Ark. 425, 36 S.W. 2d 75 (1931); Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S.W. 2d 679 (1956). Also, see Compton v. United States, 377 F.2d 408 (8th Cir. 1967).

Failure to object to an improper instruction has been before this Court several times. Such failure to spontaneously object to an erroneous instruction was discussed by this Court in Wilson [& Dancy] v. State, 261 Ark. 820, 552 S.W. 2d 223 (1977) wherein we stated:

We will take this action only when the error is so great that the trial court was under a duty to correct it immediately and no objection or admonition could have undone the damage or erased the effect of the error from the minds of the jurors.

Not only did the court fail to take any action to undo the error, but he also sent this error with the jury into the jury room. This instruction error was constantly before the jurors until they had complied with the court’s indirect instructions to convict the appellant of aggravated robbery. We have held it to be plain error for the court to comment to the jury during their deliberations. Bell v. Smith, 223 Ark. 304, 265 S.W.2d 709 (1954). In Bell the comment of the court concerned the eligibility of a convict obtaining a parole. In my opinion, such comment did properly call for a reversal of the case. However, that comment was small compared to the one in the present case. I can think of no instance where greater harm could be done than the combination of the remark of the court and a withdrawal of the not guilty verdict form. If no objection were required in Bell, certainly none is required in the present case.

It is fundamental to our system of government that an accused is presumed to be innocent until he is found guilty. When a court instructs the jury that the accused is guilty, this principle has been violated.

I stated earlier that there is no evidence in this record to support a conviction for aggravated robbery, let alone warrant a directed verdict. I fear the majority is making a grievous mistake, and a mistake which all of us will later regret. Therefore, I would reverse and remand for a new trial.


author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    Cecil H. DICKERSON, Jr. v. UNION NATIONAL BANK OF LITTLE ROCK
    80-32
    595 S.W. 2d 677
    Supreme Court of Arkansas
    Opinion delivered March 24, 1980

      Sanford L. Beshear, Jr. and Robert R. Wright, for appellant.

      Phil Stratton and Clark & McNeil, for appellee.
   George Rose Smith, Justice.

The principal question on this appeal is whether a trust created by the holographic will of Nina Martin Dickerson, who died on June 21, 1967, is void under the rule against perpetuities, because it is possible that the interest of the various beneficiaries may not vest within the period allowed by that rule. Cecil H. Dickerson, Jr., one of the testatrix’s two sons, attacks the validity of the trust. The chancellor rejected Cecil’s attack on two grounds; First, Cecil should have raised the question of the validity of the trust in the probate court in connection with the probate of the will and the administration of the estate. His failure to do so makes the issue res judicata. Second, on the merits, the trust does not violate the rule against perpetuities. We disagree with the chancellor on both grounds.

The facts are not in dispute. The testatrix was survived by her two children. Cecil, 50, was single, and Martin, 45, was married. At that time the two sons had a total of seven children, who of course were the testatrix’s grandchildren.

The testatrix named the appellee bank as executor and directed that at the close of the administration proceedings the bank transfer to itself as trustee all the assets of the estate. The terms of the trust are long, but we may summarize them as follows:

The trust is to continue until the death of both sons and of Martin’s widow, who is not otherwise identified. The income is to be divided equally between the two sons during their lives, except that Cecil’s share is to be used in part to provide for a four-year college education for his two minor children, who are named, and for the support and education of any bodily heirs by a later marriage. When the two named minor children finish college, their share of the income is to revert to Cecil. Upon Martin’s death his share of the income is to be paid monthly to his widow and children living in the home, but the share of each child terminates and passes to the widow when that child marries or becomes self-supporting. The trustee is given discretionary power to make advance payments of principal in certain cases of emergency or illness. If either son and his wife and all his bodily heirs die before the final distribution of the trust assets, that son’s share in the estate and in the income passes to the other son and then to his bodily heirs.

As far as the rule against perpetuities is concerned, the important part of the will is paragraph VIII, from which we quote:

VIII. This Trust shall continue until the death of both my sons and my son Martin’s widow and until the youngest child of either son has reached the age of twenty-five years, then at that time, the Trust shall terminate and the Union National Bank Trustee shall distribute and pay over the entire balance of the Trust Fund in their hands to the bodily heirs of my son, Cecil H. Dickerson, and the bodily heirs of my son William Martin Dickerson, in the same manner and in the same proportions as provided for by the general inheritance laws of Arkansas.

Upon the death of the testatrix in 1967, her will was presented to the Faulkner Probate Court by her son Cecil, who lived in Conway, Arkansas. (The other son, Martin, was living in Indiana.) The probate court entered a routine order reciting that the will had been properly executed, admitting the instrument to probate, and appointing the bank as executor, without bond. On May 31, 1968, the probate court entered another routine order approving the executor’s first and final accounting, allowing fees to the executor and its attorneys, discharging the executor, and closing the administration of the estate. That order made no reference to the validity of the trust or to the manner in which the assets of the estate were to be distributed.

In fact, the assets of the estate, except for $18,000 set aside for administration expenses and estate taxes, had already been transferred by the bank to itself as trustee. On August 11, 1967, about a month after the probate of the will, the bank filed in the Faulkner Chancery Court an ex parte “Declaration of Trust,” in which the bank expressed its desire to perform the trust and asked the court to find and decree that it held the property in trust for the beneficiaries of the testamentary trust. No notice of that filing appears to have been given to anyone. On September 1, 1967, the bank filed a petition in the same ex parte case, asking for an interpretation of the will with respect to the distribution of income derived from capital gains. The court directed the bank to give notice of that petition to all persons interested in the trust estate. Counsel for the trustee certified that such notice of the hearing on the petition for interpretation had been given. On October 4 the chancery court entered an order reciting the appearance of the bank only, finding that the bank had been appointed as administrator of the estate and as trustee of the trust, authorizing the bank to transfer all the real and personal property (except $18,000) to the trust estate, and instructing the trustee as to the proper treatment of capital gains as trust income.

Nothing further appears to have taken place in the case until 1977, when Cecil Dickerson filed in the same proceeding the present complaint against the bank and its trust ofiicer. The complaint, after reciting the background facts, asserts that the trust is void under the rule against perpetuities. The complaint charges the trust officer with violations of his fiduciary duties in failing to deliver all the assets of the estate to the heirs of the testatrix and in failing to ask the probate court to construe the will with respect to violations of the rule against perpetuities. The complaint charges that the trust officer concealed the trust’s defects from the court and from the testatrix’s two sons. The prayer is for an order restraining the trustee from making further transfers or distributions of the trust funds, for recovery of Cecil’s half interest in the estate, for compensatory and punitive damages, and for other proper relief. The charges of negligence and wrongdoing on the part of the bank were later .dismissed without prejudice. The other matters were heard upon stipulated facts, culminating in the degree dismissing Cecil’s complaint on the two grounds we have mentioned.

First, there is no merit in the argument that Cecil’s failure to challenge the validity of the trust in the probate proceedings precludes him from raising that issue now. Under the Probate Code the probate court does have the power to construe a will, but the construction must be necessary to the determination of some issue properly before the court. Ark. Stat. Ann. § 60-416 (Repl. 1971). Here the probate court made no pertinent decisions except that Mrs. Dickerson’s will had been properly executed and that at the end of the administration proceeding the estate should be closed. There was not even an order of distribution, because the trust assets had already been transferred by the bank to itself with the ex parte approval of the chancery court. Just as we said in an earlier case: “The [probate] court was not called upon to determine the validity of the fourth paragraph in Collie’s will, for a decision of that issue was not essential to a distribution of the estate.” Collie v. Tucker, 229 Ark. 606, 317 S.W. 2d 137 (1958).

The doctrine of res judicata is based upon the assumption that a litigant has already had his day in court. For that reason it applies to matters that were necessarily within the issues and might have been litigated in the former suit. Crump v. Loggains, 212 Ark. 394, 205 S.W. 2d 846 (1947); Robertson v. Evans, 180 Ark. 420, 21 S.W. 2d 610 (1929). Here the validity of the trust was not such a matter. The complications that may be presented by the rule against perpetuities are so numerous and difficult that even experienced lawyers and judges must usually consult the authorities to be certain about its application to a given set of facts. There was not the slightest reason for Cecil or Martin Dickerson to suspect a possible invalidity in their mother’s testamentary trust, nor any duty on their part to raise such a question. To deprive them of their property on the basis of res judicata would actually be to deny them their day in court.

Indeed, if there was any duty on anyone to raise the issue, that duty rested on the bank. It was a fiduciary, both as executor and as trustee. It owed a duty of good faith and loyalty to all the beneficiaries of the estate and of the trust and a duty to act impartially as between successive beneficiaries. Restatement of Trusts (2d), §§ 170 and 232 (1959), and Arkansas Annotations (1939) to those sections. We do not imply any wrongdoing on the part of this appellee, but it is certainly not in a position to ignore the possible invalidity of the trust both in the probate court and in the ex parte chancery court case and then take advantage, to its own pecuniary benefit, of the beneficiaries’ similar course of conduct. A contrary rule would compel the beneficiaries of an estate or trust to hire a lawyer to watch the executor or trustee, when the law actually permits them to rely upon the fiduciary.

Second, the trust is void because there is a possibility that the estate will not vest within a period measured by a life or lives in being at the testatrix’s death, plus 21 years. A bare possibility is enough. “The interest must vest within the time allowed by the rule. If there is any possibility that the contingent event may happen beyond the limits of the rule the transaction is void.” Comstock v. Smith, 255 Ark. 564, 501 S.W. 2d 617 (1973).

The terms of this trust present an instance of the “unborn widow,” a pitfall that if familiar to every student of the rule against perpetuities. This trust is not to terminate until the deaths of Cecil, Martin, and Martin’s widow, but the identity of Martin’s widow cannot be known until his death. Martin might marry an 18-year-old woman twenty years after his mother’s death, have additional children by her, and then die. Cecil also might die. Martin’s young widow, however, might live for another 40 or 50 years, after which the interests would finally vest. But since Cecil and Martin would have been the last measuring lives in being at the death of the testatrix, the trust property would not vest until many years past the maximum time allowed by the rule. The rule was formulated to prevent just such a possibility—uncertainty about the title to real or personal property for an unreasonably long time in the future.

The violation of the rule, except for the interposition of a trust, is actually so clear that the appellee does not argue the point. Instead, it insists that the property would vest in Cecil and Martin’s bodily heirs at their deaths, with only the right of possession of the property being deferred until the termination of the trust.

This argument overlooks the fact that the words “bodily heirs” were used in the decisive paragraph VIII of the will not as words of limitation, to specify the duration of an estate granted to Cecil and Martin, but as words of purchase, to specify the persons who would take at the termination of the trust. Obviously the identity of those persons cannot be determined until the death of Martin’s widow; so the ownership would not vest until that time.

A vested remainder, simply stated, is a present interest that cannot be defeated by any contingency. Such an interest can be transferred by deed, by will, or by inheritance, even though the right of possession may not accrue until some time in the future. The simplest example is a conveyance or devise to A for life, remainder to B. Since A must eventually die, B’s remainder is a present vested interest which cannot be defeated by any contingency. As we said in Hurst v. Hilderbrandt, 178 Ark. 337, 10 S.W. 2d 491 (1928), in describing a vested remainder: “[T]here is some person in esse known and ascertained, who, by the will or deed creating the estate, is to take and enjoy the estate, and whose right to such remainder no contingency can defeat.” To the same effect see Steel v. Robinson, 221 Ark. 58, 251 S.W. 2d 1001 (1952); National Bank of Commerce v. Ritter, 181 Ark. 439, 26 S.W. 2d 113 (1930); Restatement of Property, § 157, Comment f (1936).

Here the testatrix directed that at the termination of the trust the property be distributed as provided by the general inheritance laws of Arkansas. At the time of the deaths of Cecil and Martin it would be utterly impossible to say who would take, in the case we have supposed, at the death of Martin’s young widow 50 years later. Under our law the surviving descendants would then take per capita if they were related to Cecil and Martin in equal degree, but per stirpes if in unequal degree. Ark. Stat. Ann. §§ 61-134 and -135 (Repl. 1971). If there were no surviving descendants of one brother, the entire property would go to the surviving descendants of the other. If there were no surviving descendants of either, the property would revert to the testatrix’s estate and go to her collateral heirs. Thus it is really too plain for argument that the interest of every descendant (or “bodily heir”) of Cecil or Martin would be contingent upon his surviving the death of Martin’s widow, at which time—and only at which time— the title would finally vest.

A subordinate issue, that of estoppel, is relied upon by the dissenting opinion. Cecil certainly did not represent that the trust, as distinguished from the will, was valid, nor did the bank nor anyone else rely to its detriment upon the supposed validity of the trust.

Reversed and remanded for further proceedings.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. I would not reach the question of the rule against perpetuties.

The appellant in 1967 personally filed a petition asking that the instrument be admitted to probate. Later he was notified a question was raised regarding an interpretation of the trust provision. The estate was finally closed.

The chancellor found the appellant was estopped to now question the document. Twelve years is a rather long time for one to wait to object to something one intiated and in effect approved in the first place. The chancellor’s findings in this regard are not to be set aside unless clearly erroneous. Ferguson v. Guy don, 148 Ark. 295, 230 S.W. 260 (1921); Rules of Civil Procedure, Rule 52.


author: Frank Holt, Justice.

text:
    SOUTHERN TITLE INSURANCE COMPANY v. Paul OLLER, Jr. and Pearline OLLER
    80-33
    595 S.W. 2d 681
    Supreme Court of Arkansas
    Opinion delivered March 24, 1980

      Graves & Graves, by: John Robert Graves and William Randall Wright, for appellant.

      Tackett, Moore, Dowd & Harrelson, by: Gene Harrelson, for appellees.
   Frank Holt, Justice.

In 1975 appellees purchased approximately 400 acres of property in Hempstead County. At the same time, they purchased title insurance from the appellant which insured against any loss or damage they might sustain by reason of certain enumerated defects or unmarketability of their fee simple title to the property. However, the policy contained the following exclusionary clause: “subject to mineral interest leased or reserved.” There was in existence at the time a recorded 1909 deed to the property which reserved to the grantors one-half of the “chalk deposits” on the land with the right “to enter upon said land for the purpose of mining and removing said chalk.” Appellant’s primary contention on appeal is that the court, sitting without a jury, erred in concluding that chalk, a form of limestone, is not a mineral, and therefore not excluded from coverage under the title insurance policy. The crucial question, one of first impression in Arkansas, is whether chalk or limestone is classified as a mineral. If so, the “chalk deposits” retained in the deed fall within the purview of the exclusionary clause, and the appellant is not liable under the policy. If not, the appellant is liable on the policy, and the judgment of the lower court must be affirmed in this respect.

For purposes of clarity, it is undisputed that chalk is a form of limestone.

It appears there is no Arkansas case on the subject as to whether limestone is a mineral. Therefore, we look to other jurisdictions. Courts there have followed the general rule that a reservation of mineral rights in a deed does not ordinarily include limestone. Holland v. Dolese Co., 540 P. 2d 549 (Okla. 1975); Atwood v. Rodman, 355 S.W. 2d 206 (Tex. Civ. App. 1962); Eldridge v. Edmondson, 252 S.W. 2d 605 (Tex. Civ. App. 1952); Heinatz v. Allen, 217 S.W. 2d 994 (Tex. 1949); 265 Ky. 495; Rudd v. Hayden, 97 S.W. 2d 35 (Ky. 1936); and 54 Am. Jur. 2d, Mines and Minerals, §§ 8 and 10.

In interpreting the scope of a mineral rights reservation in a deed or an oil and gas lease which includes the phrase “and other mineral substances” or a grant of the “surface estate,” a major factor to be considered is whether the removal of the substance is accomplished by open pit mining, or any other process, which effectively destroys the surface of the land. Other relevant factors are local custom and usage and intention of the parties. Carson v. Missouri Pacific Rd. Co., Thompson, Trustee, 212 Ark. 963, 209 S.W. 2d 97 (1948); Vang v. Mount, 220 N.W. 2d 498 (Minn. 1974); Holland v. Dolese Co., supra; Acker v. Guinn, 464 S.W. 2d 348 (Tex. 1974); Reed v. Wylie, 554 S.W. 2d 169 (Tex. 1977); Blythe v. Hines, 577 P.2d 1268 (Okla. 1978); 211 Kan. 724; and Wulf v. Schultz, 508 P. 2d 896 (Kan. 1973). In Newell, Inc. v. Randall, 373 So. 2d 1068 (Ala. 1979), it was said: “Although there is no precise definition of the term ‘mineral,’ it necessarily implies a substance rare and exceptional in character possessing special value—and something other than the soil itself.” The rationale expressed in some of these cases is that, although limestone is of commercial value, it is not rare or exceptional in character. Further, being a part of or near the top soil as here, when quarried, the surface soil is destroyed for agricultural or grazing purposes. It would therefore be unreasonable to construe the reservation to include the right to destroy the surface of the property.

It is well settled in Arkansas with respect to the scope of a mineral reservation in a deed, that it is a fact question as to whether a certain substance is generally characterized or considered as a mineral. Thomas v. Markham & Brown, Inc., 353 F. Supp. 498 (E.D. Ark. 1973). See also Missouri Pacific Rd. Co., Thompson, Trustee v. Strohacker, 202 Ark. 645, 152 S.W. 2d 557 (1941); and Carson v. Missouri Pacific Rd. Co., Thompson, Trustee, 212 Ark. 963, 209 S.W. 2d 97 (1948). In Thomas it was observed that legal scriveners and laymen, who buy or sell land and grant or reserve a mineral right, don’t usually think in technical terms as defined by geologists, engineers or other experts. Also the fact that it is well known that a valuable substance is in or on the ground does not necessarily make the substance a “mineral” within a mineral grant or reservation. In Strohacker we held that a reservation of coal and mineral deposits in an 1892 deed was not sufficient to cover oil and gas because they were not understood to be minerals at that time. In Carson we held that bauxite was not included in a reservation of mineral rights in an 1892 deed because it was not generally known as such or within the contemplation of the parties. We also held that “minerals” or “mineral rights” did not include bauxite because of the inconsistency between the use of the land surface and the exploitation of the bauxite deposit.

Since the case at bar was tried before the standard of review was altered by our new Rules of Civil Procedure, Rule 52, we affirm if there is any substantial evidence to support the findings of the court. Taylor v. Johnnie Richardson, D/B/A Richardson Construction Co., 266 Ark. 447, 585 S.W. 2d 934 (1979). Here we view the evidence, even though contradicted, and all reasonable inferences deducible therefrom in the light most favorable to the appellee; further, exclusionary clauses in insurance policies are strictly interpreted, and all reasonable doubts are resolved in favor of the insured. State Farm Mutual Automobile Insurance Co. v. Traylor, 263 Ark. 92, 562 S.W. 2d 595 (1978); Security Ins. Co. v. Owen, 252 Ark. 720, 480 S.W. 2d 558 (1972); and First Pyramid Life Ins. Co. v. Thornton, 250 Ark. 727, 467 S.W. 2d 381 (1971).

Here appellees purchased the property and operated a hog farm. Subsequently limestone was commercially mined for a short time. The appellant argues that limestone is valuable and commercially profitable, and therefore the concept of profitability or value should be the controlling factor as to whether limestone is a mineral when there is a mineral exclusion in a policy of title insurance. We cannot agree. That is only one factor. It appears that limestone mining is commercially feasible and profitable in the local area. The limestone is about 50’ in depth. The production would be about 3,000 tons per acre foot and $3.50 per ton appeared to be a reasonable “going rate.” As to the proper characterization or definition of limestone, the evidence was conflicting. Two expert witnesses testified for appellant that it was a mineral, and two state geological publications classified it as a mineral. The geologist for the State Geological Commission testified, however, that “chalk is a rock,” and “chalk does not fit the classic defintion for a mineral nor does limestone . . .” Limestone is generally mined by going upon the property and using the open pit method, a surface excavation, which destroys the surface of the land. This is true here. Although there is evidence of commercial mining in Arkansas in 1909 and mining was commercially profitable in the local area in 1975, there is no evidence that at any time chalk or limestone was generally known or regarded in the area as a mineral. At the time this case was tried in 1978, the appellees could not lease nor sell their property because of the title defect. When appellant issued its title insurance policy in 1975, it chose to restrict its coverage for “mineral leased or reserved” although there was a recorded deed reserving to the grantors a one-half interest in the “chalk deposits” (limestone).

Viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellees, as we must do on appeal, we find that there is ample substantial evidence to support the court’s finding that the limestone on the appellees’ land is not a mineral “within the exclusion in the title insurance policy.” A predominate, if not controlling factor, is that the mining of limestone destroys the surface of the property for farming or any legitimate purpose, and therefore the exclusion claimed by appellant is unreasonable and not within the intent of the parties.

The second issue raised on appeal is that the trial court’s allowance of attorney’s fees to appellees’ attorney is excessive. Appellant cites Equitable Life Assurance Society v. Rummell, 257 Ark. 90, 514 S.W. 2d 224 (1974) which enumerated the factors to be considered in determining the reasonableness of attorney’s fees. Here the court awarded judgment for the face amount of the policy, $68,000, a 12% statutory penalty in the amount of $8,160, plus a $7,500 attorney’s fee. Appellant argues that the trial judge based his decision on the pleadings, actual trial and skill of the attorney, and therefore these factors alone are insufficient bases for the award. Appellees respond that the investigation of the case required considerable travel, the interviewing of witnesses, the securing of expert testimony, a search of court records, and the necessary expertise to properly cross-examine appellant’s witness. Further, a novel and difficult question of first impression was presented, and $7,500 is less than 10% of the total amount recovered for the appellees. The appellees do not ask for any additional fee for legal services on appeal. We recognized in Equitable Life Assurance v. Rummell, supra, that there is no fixed formula or policy for determining a reasonable attorney’s fee other than there is a broad discretion vested in the courts which must not be abused. In the circumstances, we hold the $7,500 fee reasonable.

Affirmed.


author: John I. Purtle, Justice.

text:
    Esther L. COLVIN v. Richard A. COLVIN
    79-327
    595 S.W. 2d 685
    Supreme Court of Arkansas
    Opinion delivered March 24, 1980

      Killough & Ford, by: Robert M. Ford, for appellant.

      Kinney & Easley, for appellee.
   John I. Purtle, Justice.

The Chancery Court of St. Francis County denied appellant’s motion to set aside a decree of divorce in which appellant contended it was error to grant the decree after appellant had notified appellee’s attorney that she was dissatisfied with the terms of the waiver and settlement agreement which she had executed.

On appeal appellant argues: (1) it was improper for appellee’s attorney to file the waiver and agreement after she had expressed dissatisfaction with it; (2) it was error for appellee’s attorney to fail to notify her of the date the matter would be presented to the court; (3) attorney for appellee had a duty to notify the court of appellant’s dissatisfaction; and (4) it was error for the court to refuse to grant the motion to set aside the decree. We do not find reversible error.

On July 3, 1979, appellee’s attorney filed a complaint for divorce. On the same day he mailed appellant a copy of the complaint, a waiver of service and entry of appearance, a property settlement agreement, and a letter advising her he would discuss the matter with her. The letter also informed her that she had the right to consult an attorney of her choice.

A few days later, appellant contacted appellee’s attorney and negotiated a change in the agreement; and, the instrument was modified and executed by the parties on July 17, 1979.

On August 7, 1979, appellant called appellee’s attorney and stated she believed she had made a mistake in signing the instrument. She further stated that she thought she might cross-file for divorce and that she would probably hire an attorney. Appellee’s attorney advised her she should do this. At that time appellant requested the appellee’s attorney not to tell her husband about the conversation. She made no request to withdraw the waiver or the property settlement agreement.

On August 8, 1978, the attorney filed the waiver of service and settlement agreement with the court, and on August 9, 1979, appellee’s attorney took the dispositions of his client and his client’s witness. Later on the same day, the appellant inquired of the chancery clerk whether a divorce had been granted, and she was informed it had not.

The depositions were filed on August 13, 1979, and the decree was signed in chambers on that date. No attorneys had contacted appellee’s attorney prior to the court granting the decree for divorce. The court was not made aware of appellant’s statements.

On August 23, 1979, the appellant filed a motion to set aside the decree on the grounds stated earlier in this opinion. The appellee filed a motion to strike appellant’s motion to vacate the decree. Memorandum briefs were filed in support of each motion. On August 30, 1979, a hearing was held by the court, and the motion to set aside the divorce decree was denied. Appellant appeals from the order entered thereon.

The appellant received the letter from her husband’s attorney along with the proposed waiver and property settlement shortly after July 3, 1979. She discussed this matter with the attorney at a later time and suggested changes in the agreement. These changes were completed on July 17, 1979. In her conversation with the attorney on August 7, she simply stated she thought she had made a “bad deal.” She never requested that the waiver be withdrawn nor did she suggest in what manner she had made a bad deal.

At this time she was encouraged to seek the services of another attorney. However, this was not done until early August; and, her attorney did not contact the appellee’s attorney or the court until after the decree was entered.

Appellant does not quote any statute or rule which would have any bearing on this argument. The most that can be said of the authorities cited in support of this argument is that the courts do not seem to favor waivers. However, some courts are almost forced to use waivers in an effort to conserve time.

No doubt, it would have been better practice had the attorney informed the appellant that he was going to abide with the waiver and present it to the court for approval. The attorney should have also notified the court that there was some disagreement or at least a question about the agreement. Nevertheless, this was adequately explored at the hearing to set aside the decree.

We do not believe there is any legal requirement that the appellant should have received notice prior to the decree being taken in this case. The waiver which she signed specifically waived issuance of summons, service of summons, and notice of the proceedings to be had in the case. Again, it would have been the best practice to notify the appellant that the appellee was going to ask the court to enter the decree on a date certain.

Well over a month had elapsed from the time appellant had received notice of the filing of the complaint and a copy of the waiver before she seriously addressed this matter. Therefore, it does not appear that appellant used due diligence in her own behalf. We stated in McCormick v. McCormick, 246 Ark. 348, 438 S.W. 2d 23 (1969), that where one has notice of the pendency of an action for divorce and fails to appear or defend, a motion to vacate will be denied where there is negligence or lack of diligence on the part of the defendant. This is a matter that is within the discretion of the court. Unless excusable neglect or fraud or some other just cause is shown, the courts usually will not set aside a decree granted without notice to the defendant. Hagen v. Hagen, 207 Ark. 1007, 183 S.W. 2d 785 (1944). Also see Sariego v. Sariego, 231 Ark. 35, 328 S.W. 2d 136 (1959).

We do not find that the attorney for appellee gave the appellant any advice during the pendency of this action. In fact, on at least two occasions he advised her to secure counsel of her own choosing.

It is true appellee’s attorney rushed the case in order to protect his client’s rights, but he was looking after his client’s best interest. We do not find that the attorney engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation, as cited in DR 1-102 of the Code of Professional Responsibility.

We agree with appellant that the attorney representing appellee was under a duty to inform the court appellant had raised some question about signing the waiver. However, there is nothing in the record to indicate it would have changed the course of conduct of the trial. In fairness to the court, this matter should have been presented at the time the decree was entered. But, this matter was thoroughly discussed at the hearing on the motion to vacate the decree, and we feel that the court acted within its discretion.

The reason the separation agreement portion of the waiver document was not entered was because the parties had already completed that portion of the instrument. Appellant had executed a quitclaim deed and received in return a promissory note for her interest in the property as had been agreed between the parties. Nowhere in the proceedings were facts alleged which indicate that the appellee had overreached the appellant or that appellant had not in fact received a fair deal. In appellant’s testimony she simply stated she wanted the divorce in her name and she had more than $500 invested in the property. Frequently, people are unable to obtain their investment upon a sale of property in divorce actions. We do now know whether this property was owned by the appellee prior to the marriage or whether there was in fact any equity due the parties in the event of a sale in view of the fact that the marriage lasted less than two years.

We do not think the court erred in denying appellant’s motion to set aside the decree. The setting aside of a decree in a divorce action is within the sound judicial discretion of the trial court and will not be reversed in the absence of a clear showing of abuse of discretion. Jackson v. Jackson, 253 Ark. 1033, 490 S.W. 2d 809 (1973). The burden was on appellant to demonstrate proper cause to set the decree aside. The fact that she had changed her mind is not sufficient to set aside the decree. Jackson, supra. Since no valid defense to the divorce was alleged, we think the court was acting within its discretion. Burnett v. Burnett, 254 Ark. 507, 494 S.W. 2d 482 (1973).

Ordinarily, it would not be proper for an attorney in the case to testify. However, in the case before us the opposing counsel requested appellee’s attorney to testify and opposing counsel waived all confidentiality existing between his client and appellee’s attorney.

Affirmed.


author: Per Curiam.

text:
    Kozy KITCHEN v. STATE of Arkansas
    CR 80-20
    Supreme Court of Arkansas
    March 24, 1980
   Per Curiam.

The appellant, Kozy Kitchen, through his attorneys, has filed a motion for a rule on the clerk.

A motion for an extension of time to docket the record was filed 92 days after the Notice of Appeal.

The attorneys for Kozy Kitchen, Gerald W. Carlyle and Steven G. Howard, concede the error was theirs, offering no excuse except a miscalculation.

We have found this to be “good cause” for failing to file a record in a criminal case. However, we forward a copy of this opinion to the Committee on Professional Conduct pursuant to our Per Curiam dated February 5, 1979, regarding belated appeals.

Also the petition to extend time for filing is granted.


author:
George Rose Smith, Justice.
      George Rose Smith, Justice. Richard L. Mays, Justice,

text:
    DeWayne HULSEY v. STATE of Arkansas
    CR 76-125
    595 S.W. 2d 934
    Supreme Court of Arkansas
    Opinion delivered March 31, 1980
    Rehearing denied June 9, 1980

      Latham & Watkins; Reed E. Hundí and Patrick T. Seaver, for petitioner.

      Steve Clark, Atty. Gen., by: Ray E. Hartenstein, Asst. Atty. Gen., for respondent.
   George Rose Smith, Justice.

In November, 1975, the petitioner, DeWayne Hulsey, was convicted of capital felony murder in the death of John Easley, Jr., a service station attendant in St. Francis county. According to the proof at the trial, Hulsey killed Easley, in the course of robbery, by shooting him seven times while Easley was unarmed and comparatively helpless. The jury imposed the death sentence. We upheld the conviction and the sentence, rejecting many assertions of reversible error. Hulsey v. State, 261 Ark. 449, 549 S.W.2d 73 (1977), cert. den. 439 U.S. 882, 99 S. Ct. 220, 58 L. Ed. 2d 194 (1978).

On January 24, 1980, Hulsey filed the present petition for postconviction relief under Criminal Procédure Rule 37.2, seeking permission to proceed further in the circuit court of St. Francis county. The petition is unusual in that it does not raise any questions of fact nor ask for any sort of evidentiary hearing in the trial court. To the contrary, counsel readily conceded at the oral argument that the petition raises only questions of law and that the petitioner does not propose to offer any testimony with respect to those questions.

In most respects this petition misconceives the purpose of Criminal Procedure Rule 37 and of its predecessor, which was adopted in 1965 as Criminal Procedure Rule 1. 239 Ark. 850a. This postconviction remedy was not intended to provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973). As the Rule itself states, it affords a remedy when the sentence was imposed in violation of the Constitution or laws of the United States or of this state or “is otherwise subject to collateral attack.” Rule 37.1; Swisher v. State, 257 Ark. 24, 514 S.W. 2d 218 (1974); Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553 (1969); Clark v. State, 242 Ark. 584, 414 S.W. 2d 601 (1967). In the case at bar the petitioner for the most part seeks to use Rule 37 as a basis for filing what is in substance a petition for rehearing, almost three years after the delivery of our opinion on the original appeal. Moreover, the present petition is based entirely upon the record that was before us on that appeal and seeks to raise questions that could have been presented to us then, had they been properly raised below.

In one respect, the petition may be proper and timely. That is, it asserts that the original death sentence was void, because one of the prospective jurors, Mary L. Creamer, was excused in violation of the rule announced in Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1720, 20 L. Ed. 2d 776 (1968). There is language in that case, and in the later case of Boulden v. Holman, 394 U.S. 478, 89 S. Ct. 1138, 22 L. Ed. 2d 433 (1969), suggesting that a death sentence cannot be permitted to stand if a juror was excused in violation of the Witherspoon principle, which is: A venireman’s opposition to capital punishment does not disqualify him unless he would automatically vote against the imposition of capital punishment no matter what the trial might reveal. If the sentence now before us is void, then a collateral attack is expressly permissible under Rule 37.1 and may be initiated, as here more than three years after the defendant’s commitment. Rule 37.2 as amended; Ark Stat. Ann., Vol. 4A (Supp. 1979).

It does not appear, however, that the trial court’s decision to excuse Mrs. Creamer for cause was a violation of Witherspoon. This juror equivocated repeatedly about her willingness to vote for or against the death penalty, but her final position was expressed in her answer to the prosecuting attorney’s last question to her:

Q. Now, what I’m trying to find out, even though you think he is guilty, would you automatically vote against the imposition of the death penalty without regard to any evidence that might develop in the trial of this case?
A. I believe I would, yes, sir, because I don’t want to take a life.

The juror was then excused, without objection by the defense.

The trial judge had the opportunity to observe the juror as she answered questions on voir dire. The judge was in a position to weigh her somewhat contradictory assertions in order to determine, as he did, whether she was qualified under the rule of Witherspoon. We find that the trial judge was justified in excusing the juror.

The petitioner presents a number of other quesions that either were passed upon in our first opinion or might have been raised at the trial or upon the record on the first appeal. Among the questions not expressly decided on the first appeal, the principal ones now argued are: (1) The Eighth and Fourteenth Amendments were violated by the jury’s consideration of pecuniary gain as an aggravating circumstance after they had already found Hulsey guilty of felony murder in the perpetration of robbery; (2) the prosecutor’s argument about the brutality of the crime presented an impermissible aggravating circumstance to the jury; (3) Act 438 of 1973, § 12, under which Hulsey was convicted, was unconstitutional in that it did not expressly permit the jury to consider every possible mitigating circumstance (even though the court’s instructions permitted the jury to consider mitigating circumstances other than those listed in the statute, and the jury actually found one such circumstance); and (4) the case should have been submitted to the jury under Act 280 of 1975, § 1302 (Ark Stat. Ann. § 41-1302 Repl. 1977), which required the jury to find beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating ones (even though that act did not become effective until January 1, 1976, which was after Hulsey’s trial).

Supplemental opinion on denial of rehearing delivered June 9, 1980

All these questions, and doubtless scores of others, might have been raised at the trial and thereafter on the first appeal, but they were not. Although they are argued as constitutional questions, they do not raise issues so fundamental as to render the sentence and the judgment void and open to collateral attack. Such constitutional questions are waived if not raised in accordance with the controlling rules of procedure. Moore v. Illinois, 408 U.S. 786, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972); Stembridge v. Georgia, 343 U.S. 541, 72 S. Ct. 834, 96 L. Ed. 2d 1130 (1952); Williams v. Edmondson, 257 Ark. 837, 250 S.W. 2d 260 (1975); Orman v. Bishop, 245 Ark. 887, 435 S.W. 2d 440 (1968). In this court, contentions not argued by the appellant—in this instance on the first appeal —are waived. Sarkco v. Edwards, 252 Ark. 1082, 482 S.W. 2d 623 (1972). Judgments in criminal cases must have stability and finality, else they could never be carried into effect. Under our long established procedure it is simply too late for the present contentions to be raised.

Petition denied.

George Rose Smith, Justice.

The petitioner has filed a detailed petition for rehearng and supporting brief, devoted for the most part to a reargument of points already made. We find no merit in the petition, but two of the points call for some additional discussion.

First, petitioner insists that we have failed to follow Supreme Court decisions holding that a prospective juror’s statement of “belief’ that he would vote against the imposition of the death penalty is not sufficient cause for his exclusion from a jury for cause, it is argued that Mrs. Creamers’s statement that she “believed” that she would automatically vote against the death penalty was not a positive statement, in view of her voir dire examination as a whole.

We disagree. It seems perfectly clear that Creamer did not at first understand that the jury would have a choice between the death penalty or life imprisonment. Instead, she thought that a finding of guilty would require the death sentence. Under that misapprehension, she stated that if she believed the defendant to be guilty she would vote for the death penalty, “but I just wouldn’t want to vote for it.” When, however, it was explained to her that the jury would have a choice, she said: “Oh.” She then replied, in response to the question whether she would automatically vote against the death penalty regardless of the evidence: “I believe I would, yes sir, because I don’t want to take a life.” There is no uncertainty in that reply, which gives a positive answer, “yes, sir,” and adds the reason for her position.

Second, it is argued that if we reject without discussion the petitioner’s various “constitutional” arguments, mentioned in our original opinion, then the petitioner has received ineffective assistance of counsel and must be permitted to amend his petition to seek relief on that ground.

No authority is cited for this argument, nor is any authority needed to answer it. Within the vague contours of “due process of law,” every contention can be framed as a constitutional right. If, for example, hearsay testimony about an immaterial question is introduced without objection, it can be asserted that a conviction based upon such testimony is a denial of due process of law. In the case at bar counsel have had about three years since our original opinion, delivered April 11, 1977, to comb the record for some semblance of prejudicial error. No violation of any fundamental constitutional right has been discovered. The petitioner appears to have been competently represented by counsel and to have received a fair trial in every respect. We are now asked to declare that trial counsel should have anticipated the frail and insubstantial constitutional questions that are now being urged three years later and should have interposed appropriate objections at the trial. If that principle were adopted, there could never be any end to a criminal prosecution in the state courts, much less to the succession of appeals to the federal courts that can be expected to follow. As we said in our first opinion on this appeal, it is simply too late, for the present contentions to be raised.

Rehearing denied.

Mays, J., would grant the rehearing.

Richard L. Mays, Justice,

dissenting. In Witherspoon v. Illinois, 391 U.S. 510, rehearing denied, 393 U.S. 898 (1968), the United States Supreme Court held that in capital cases only jurors who are unequivocally opposed to the imposition of the death penalty may be excused for cause. During petitioner’s trial in which the death penalty was imposed Mrs. Creamer, a prospective juror, was excluded by the court during voir dire when she said that she “believed” that she would automatically vote against the death penalty. I view Mrs. Creamer’s response as equivocal, especially in the context of her previous statements suggesting that she could vote for the death penalty under appropriate circumstances. Therefore, applying the principle of Witherspoon, Mrs. Creamer should not have been excluded. I would grant the rehearing requested by petitioner.


text:
    Charles BLACKMON v. STATE of Arkansas
    CR 79-209
    595 S.W. 2d 689
    Supreme Court of Arkansas
    Opinion delivered March 31, 1980
    Appellant, pro se.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted of second degree murder and sentenced to 35 years’ imprisonment. He subsequently filed a pro se petition for post conviction relief requesting an evidentiary hearing. Ark. Stat. Ann. Vol. 4A, Rules of Crim. Proc., Rule 37 (Repl. 1977). In a supplemental document, appellant alleged that he was denied effective assistance of counsel. We granted appellant’s motion to proceed under Rule 37. The circuit court denied the petition without an evidentiary hearing pursuant to Rule 37.3 (a) which provides that a Rule 37 motion may be disposed of without a hearing by the trial court if the motion and the files and records of the case “conclusively” demonstrate that the petitioner is not entitled to the relief requested. Appellant’s sole contention on appeal is that the trial court erred in denying him an “evidentiary hearing upon his motion for post conviction relief in which he alleged that his retained counsel had ineffectively assisted him at trial.” He alleges that he was denied effective assistance of counsel inasmuch as his attorney failed to properly investigate the case and interview several witnesses who were willing to testify in his defense, refused to ask for a continuance to secure the attendance of these witnesses, and failed to make proper objections to the amendment of the information and the admission of certain evidence, including a statement from the medical examiner’s office.

An evidentiary hearing in the trial court on an allegation of ineffective assistance of counsel “better equip [s] us on review to examine in detail the sufficiency of the rep-representation below.” Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463 (1976). See also Cross v. U.S., 392 F.2d 360 (8th Cir. 1968). Here we granted appellant’s motion to proceed under Rule 37 wherein he specifically requested an evidentiary hearing with the right to be present. In the absence of an evidentiary hearing, it would be virtually impossible for the trial court or us on appellate review to make a determination as to the adequacy of counsel in view of the objections asserted by the appellant. The record before us does not “conclusively” show appellant was not entitled to a hearing. Therefore, the trial court should have granted the appellant a hearing with reference to his allegation of ineffective assistance of counsel. Cusick v. State, 259 Ark. 720, 536 S.W. 2d 119 (1976); and Cullens v. State, 252 Ark. 995, 482 S.W. 2d 95 (1972).

Reversed and remanded.