text:
    FIREMAN’S FUND INSURANCE COMPANY v. POLK COUNTY, Arkansas, and Helen THOMAS and ST. PAUL FIRE AND MARINE INSURANCE CO.
    76-173
    543 S.W. 2d 947
    Opinion delivered December 20, 1976 (Division I)

      Tackett, Moore, Dowd & Harrelson, for appellant.

      J. Michael Cogbill and Charles R. Ledbetter, of Shaw & Ledbetter, for appellees.
   John A. Fogleman, Justice.

Appellant, Fireman’s Fund Insurance Company, was surety on the bond of Herman J. Callahan, as Collector of Polk County, covering the year 1973. An audit of the accounts of Callahan for that year by the Division of Legislative Audit of the Legislative Joint Auditing Committee reflected that there was a net shortage in his accounts of $6,982.20 attributable to an excessive withholding of $7,444.16 in commissions on school tax collections and additional commissions due him on other funds totalling $461.96. Callahan and Fireman’s Fund were notified of the discrepancy by letters from the Division of Legislative Audit. When neither paid the shortage the Prosecuting Attorney of the Ninth Judicial District, of which Polk County is a part, filed this suit for Polk County against appellant in the circuit court seeking to recover the amount of the shortage.

Appellant answered, alleging that the discrepancies arose from an erroneous calculation of the collector’s commissions by Helen Thomas, County Clerk of Polk County and that she, rather than Callahan and appellant, was liable to the County for the shortage. Appellant filed a third party complaint against Ms. Thomas and the surety on her bond, St. Paul Fire & Marine Insurance Company asking that they be held liable to the county, or in the alternative, to appellant for any judgment rendered against it in the action. Helen Thomas and St. Paul Fire & Marine Insurance Company filed a motion for summary judgment.

By an amendment to its answer, Fireman’s Fund alleged that the statutory notice of overpayments had not been timely served on the collector, that no judgment had been rendered against the collector in the County Court, that no timely examination of the collector’s settlement had been effected or changed, that the accounts of the collector could not be settled in the circuit court in an action against the surety on the collector’s bond, that the complaint against appellant could not be maintained in the circuit court and that the circuit court was without jurisdiction. Appellant then filed its motion for summary judgment.

At a pretrial hearing the facts were stipulated by the parties. It was agreed that:

The information contained in the letters from the Legislative Joint Auditing Committee to Callahan and Fireman’s Fund, dated November 22, 1974 and December 6, 1974, respectively, was based upon an audit made during the months of August, September and October, 1974. On March 14, 1975, the Legislative Joint Auditing .-Committee notified Prosecuting Attorney Steel of the Ninth Judicial District that the Fireman’s Fund had failed to pay the shortage. The prosecuting attorney filed the complaint seeking judgment against Fireman’s Fund for the net shortage on June 6, 1975. The calculations made by the Auditing Committee were correct. The discrepancy in the commissions on school funds was attributable to the utilization of a rate of .04039 by Helen Thomas, County Clerk, in calculating the commission rather than the correct rate of .0302053136. No official of Polk County had made any demand upon Callahan prior to the filing of the complaint. Based upon the county clerk’s computation, Callahan retained collections amounting to $6,-982.20 over and above the amount to which he was entitled. The county clerk did nothing except make a computation for a “tentative” settlement to be made by the collector with the taxing units. She did not receive any benefits by reason of the overpaid commission and no demand had been made on her or her surety by anyone. During the years 1973 and 1974 neither the Polk County Court nor the Polk County Judge made or filed any record concerning the collector’s accounts, collections or commissions for the year 1973, other than the settlement of the collector for the year 1973, dated December 4, 1973, which was exhibited.

The circuit court then rendered judgment against appellant based upon the stipulation, holding that the procedure provided by Ark. Stat. Ann. § 13-209 (E) governed and had been followed. The motions for summary judgment were denied and the cross-complaint against Ms. Thomas and St. Paul Fire & Marine Insurance Company dismissed. The judgment was rendered on November 6, 1975 at the pretrial hearing but was not filed until November 24, 1975. It was dated November 21, 1975.

A certified copy of an undated order of the County Court of Polk County, purportedly pursuant to the authority vested by Ark. Stat. Ann. § 84-1401 et seq, found its way into the transcript. The certificate of the county clerk is dated November 10, 1975 and it appears to have been filed with the Clerk of the Circuit Court of Polk County on the same date. It contained a finding that Callahan had “overdrawn” his collector’s compensation for the year 1973 by the amount of $6,982.20, as shown by the audit by the Legislative Joint Auditing Committee, and ordered him to repay the amount. There is nothing to indicate that it was presented to or considered by the circuit court in rendering the judgment. It could not, and should not, have been admitted into evidence because it was not made before the bringing of this suit. Graham v. State, 100 Ark. 571, 140 S.W. 735. At any rate, it cannot be considered on appeal.

Appellant asserts a single point for reversal. It questions the propriety of the holding that Ark. Stat. Ann. § 13-209 (E) alone governed the procedure. In its argument, appellant contends that the section in question does not authorize an action in the circuit court against it, without the liability of the collector having been determined in the County Court of Polk County. We agree with appellant. The section in question does nothing more than authorize the Director of the Division of Local Affairs and Audits, with the approval of the Legislative Joint Auditing Committee, to give notice and make demand upon the surety on an official bond, and in default of payment, to give notice to the prosecuting attorney of the proper circuit, who is, by the act, directed to “forthwith take such legal action as may be necessary to collect the amount so found to be due from the officer and his surety or sureties. ” The amount referred to is the amount of any shortage or other liability reflected by reports of audits of the records of a county official.

There is no language in the act which purports to vest any jurisdiction in any court of an action for recovery of amounts found due by an audit, or which suggests that there was any intention to repeal or amend statutes which do govern the procedure for establishing the liability of a county official, and, at least indirectly, that of a surety on his official bond. Specific acts were repealed, but none are germane to this procedure. Of course, neither repeals nor amendments by implication are favored in construing statutes. Penney v. Vessels, 221 Ark. 389, 253 S.W. 2d 968. In Arnold v. City of Jonesboro, 227 Ark. 832, 302 S.W. 2d 91, we said:

*** The Legislature will not be held to have changed a law it did not have under consideration while enacting a later law, unless the terms of the subsequent act are so inconsistent with the provisions of the prior law that they cannot stand together.

The statute relied upon is not so inconsistent with the provisions of the earlier law that all cannot stand. By omitting these acts from the specific repealer, there is more indication that the General Assembly intended that they be unimpaired than that they be superseded.

In the first place, it is the duty of the county clerk to set up the collector’s settlement, by charging him with the amount to be collected and deducting amounts delinquent and the commissions allowed him by law, Ark. Stat. Ann. § 81-1409 (Repl. 1960). The collector is charged with the duty, however, to render his accounts to, and settle with, the county court. Ark. Stat. Ann. § 84-1430 (Repl. I960). It is the duty of the county court to pass upon the collector’s settlement made and filed with the county court and to approve, reject or restate it. Ark. Stat. Ann. § 84-1410 (Repl. 1960). Failure of the county judge to act is misfeasance and a misdemeanor and failure of the county clerk to set up the settlement is a misdemeanor punishable by removal from office. § 84-1410. If the settlement is found correct, the county court shall order it spread of record; if rejected, the clerk must restate the settlement and resubmit it to the county court. Ark. Stat. Ann. §§ 81-1411, 1431 (Repl. 1960). It is only after this is done that the collector makes final payment to the various agencies for whom he has made collections. Ark. Stat. Ann. §§ 81-1412, 1416, 1432 (Repl. 1960). If the collector fails to make settlement, the county court must adjust his accounts, according to the best information obtainable. Ark. Stat. Ann. § 84-1436 (Repl. 1960). This proceeding may be ex parte, but it is only a preliminary step on which judgment cannot be entered without further proceedings. Trice v. Crittenden County, 7 Ark. 159; Carnall v. Crawford County, 11 Ark. 604; Christian v. Ashley County, 24 Ark. 142. If the collector does not show good cause for setting aside a settlement so made, the county court then enters judgment against him. Ark. Stat. Ann. § 84-1439. If good cause is shown, the court may reexamine, settle and adjust the settlement so arrived at by it. Ark. Stat. Ann. § 84-1440 (Repl. 1960). But notice must first be given to the collector, so he may be heard. Trice v. Crittenden County, supra. If the amount found due by the collector is not paid after 15 days’ notice to the collector and his sureties, the county court may render judgment against them. Ark. Stat. Ann. § 84-1442 (Repl. 1960). If an error either of law or fact is discovered in the settlement, it is the duty of the county court, within one year from the date of the settlement, to reconsider and adjust it, after ten days’ notice to the officer. Ark. Stat. Ann. §§ 84-1443, 1444 (Repl. 1960). See Haley v. Thompson, 116 Ark. 354, 172 S.W. 880.

These proceedings against the collector are exclusively within the jurisdiction.of the county court. Trice v. Crittenden County, supra. In acting on such matters the county court acts judicially. Brandenburg v. State, 24 Ark. 50.

This record is totally devoid of any evidence that the collector made or filed any settlement with the county court or that the county court ever adjusted his accounts upon his failure to make a settlement or for any error (unless this was done after the hearing in this case). There certainly is nothing in the record to indicate that the county court ever rendered a. judgment against the collector, pursuant to the statutes and after notice to the collector. This was a condition precedent to an action against the surety on the collector’s bond. Graham v. State, 100 Ark. 571, 140 S.W. 735; Jones v. State, 14 Ark. 170. In Jones, we said:

The county court is the forum where the liability of the collector, upon which that of his securities depends, is to be ascertained and evidenced by its records. An adjudication in the forum is conclusive evidence against the securities, as well as the collector, in an action upon his bond in the Circuit Court. There can be no liability upon the collector’s bond without such adjudication unless the Circuit Court can in an action upon the bond draw to itself, in a collateral way, a jurisdiction to investigate and settle the accounts of delinquent officers for the collection of revenue, which appropriately belongs to the county courts.

Later in Goree v. State, 22 Ark. 236, we held that a judgment in circuit court against the surety on a collector’s bond was defective because no action could be maintained against the surety until a final judgment had been rendered in the county court upon the collector’s settlement or its adjustment and settlement, and that the ex parte preliminary settlement was not sufficient basis for the action. Upon the basis of this holding we rejected the argument that the circuit court, and not the county court, had jurisdiction of such an action. Chris tian v. Ashley County, 24 Ark. 142. It is clear that notice prior to the final judgment is essential to its validity. Christian v. Ashley County, supra; Trice v. Crittenden County, supra; Carnall v. Crawford County, supra.

It is quite clear that no cause of action accrues against the surety on the bond until a final judgment fixing the liability of the collector has been entered. Graham v. State, supra, 100 Ark. 571.

Inasmuch as the record does not disclose that the conditions precedent to the cause of action have been met, the judgment must be reversed.

Appellant has argued that the action is barred by the statute of limitations. But the earliest date the statute can begin to run is the date the collector actually files his settlement with the county court, McCoy v. State, 190 Ark. 297, 79 S.W. 2d 94, unless it should be put in motion by the county court’s ex parte preliminary settlement or by any notice given thereafter. In any event, there is nothing in this record to show any basis for the accrual of the cause of action, so we cannot hold that the action is barred upon the record before us. Bledsoe v. State, 167 Ark. 160, 267 S.W. 571, has no application, because, as far as this record discloses, the collector never filed his settlement with the county court and the statement of the account by the county clerk is not necessarily the settlement contemplated. See Ark. Stat. Ann. § 84-1430.

It should be noted that there is no allegation of either actual or legal fraud in this case. All parties agree that the shortage is due to a mistake, which may well not have been the basis of relief in equity for fraud. State v. Perkins, 101 Ark. 358, 142 S.W. 515, but see Fuller v. State, 112 Ark. 91, 164 S.W. 770. Even if fraud has been the basis of the action, or could be alleged, this case could not be transferred to chancery court and an action on that basis would have to be instituted in that court. Bledsoe v. State, supra.

Since conditions precedent had not been met, there was no cause of action of which the circuit court had jurisdiction, so the judgment is reversed and the cause dismissed.

We agree. Harris, C.J., and George Rose Smith and Jones; JJ.

      It may well be that this jurisdiction could not be given to any other court because of Art. 7, § 28 of the Constitution of Arkansas. E. F. Leathem & Co. v. Jackson County, 122 Ark. 114, 182 S.W. 570; Ann. Cas. 19.70 438.


source: Caselaw Access Project

author: John A. Fogleman, Justice. Carleton Harris, Chief Justice,

license: Public Domain

text:
    Dewey BROCKWELL v. STATE of Arkansas
    CR 76-32
    545 S.W. 2d 60
    Opinion delivered December 20, 1976 (In Banc)

      John F. Gibson Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was convicted of second degree murder for the killing of his son-in-law, Walter Griffin, by shooting him with a 12 gauge shotgun loaded with buckshot. Brockwell and his wife lived next door to their daughter and son-in-law at McGehee. The killing took place as Griffin approached the front door of the Brockwell house, where his wife, Goldie Griffin, had gone with her mother on the preceding day. Goldie Griffin was ill at the time and died before the trial. Appellant’s defense was that he acted in defense of his habitation. He urges 20 points for reversal, most of which merit little discussion. We do find reversible error in the court’s failure to sustain appellant’s objection to the prosecuting attorney’s cross-examination of him.

Appellant had testified that his daughter was ill and had been released from the hospital just a few days earlier and had first come to the Brockwell house, but had gone to the Griffin house just two days prior to the day of the killing. On the evening of that same day, according to Brockwell, his wife had brought their daughter back to the Brockwell house and Griffin had followed them at a distance of about two and one-half feet, cursing and raging. Brockwell said he had latched the storm door at the front of the Brockwell house after his wife and daughter entered and Griffin had threatened to tear it down and come into the house. Brockwell stated that when he closed and latched the main door, Griffin left and Mrs. Brockwell called the police. Brockwell said that he watched and saw that Griffin had turned out all the lights in the Griffin house. Brockwell told of the steps taken by him and his daughter to institute “peace bond” proceedings against Griffin the following day. On still the next day he stated that Griffin returned home from work, sent for his wife, and, when she didn’t come, came out and said that if she were not back home in 15 minutes, he would come back, tear the door down and get her. Then, Brockwell said, Griffin left, after having upbraided his wife on the telephone for having taken his gun, telling her he could get another. He stated that Griffin promptly got in his car and “took off,” spinning his wheels, but returned in about one and one-half hours and sat on his front steps drinking beer, after which the five-year-old son of the Griffins came into the Brockwell house and reported that his daddy had said that, if he came back to the Brockwell house, “it would be rough. ” Brockwell said that Griffin sat on his own porch for about 15 minutes and then started toward the Brockwell house.

Brockwell testified that he thought Griffin had a gun, but could see only his shirt, not his hands. He said that the shirt hung down pretty long. On cross-examination, Brockwell testified that Griffin’s shirttail was out as he approached the Brockwell house. Then the prosecuting attorney showed a photograph to the witness, prompting an objection that the picture had not been introduced in evidence. The prosecuting attorney showed a photograph to the witness, prompting an objection that the picture had not been introduced in evidence. The prosecuting attorney responded that the photograph was offered for the purpose of impeaching the testimony of the witness, because it clearly showed that “the man’s shirttail was in.” The trial judge permitted the prosecuting attorney to question the witness about the picture without its being shown to the jury. The witness protested that the picture had been taken after the shooting but that he had been unable to see Griffin’s hands prior to the shooting. The prosecuting attorney asked if the witness assumed that Griffin tucked his shirt in after the killing. When appellant’s attorney objected to any statement by the prosecution that Griffin’s shirt was tucked in after the shooting, the prosecuting attorney answered that the witness had testified that' the shirttail was out and that if the defendant wanted to introduce the picture, he could do so, and the trial judge stated: “I’m going to now — This witness testified that his shirttail was hanging out. ” The picture was never introduced in evidence, even though the prosecuting attorney had said that it would be if Brockwell could identify it. There was no indication other than the statement of the prosecuting attorney, what it depicted relative to the shooting or when it was taken.

This attempt to impeach the defendant related to a very critical issue in the case. Admissibility of the photograph in evidence depended upon the laying of a foundation showing that it was a fairly accurate representation of the conditions existing at the time in question. Riggan v. Langley, 238 Ark. 649, 383 S.W. 661; Wheeler v. Delco Ben & Broadway Ice Co., 237 Ark. 55, 371 S.W. 2d 130. In this case, the picture would not have been admissible, unless it was indicated, in some manner, other than the prosecuting attorney’s statement, that it showed Griffin’s clothing was arranged substantially as it had been when the shooting occurred, or unless the difference was properly explained. Powell Bros. Truck Lines v. Barnett, 196 Ark. 1082, 121 S.W. 2d 116. The prosecuting attorney’s statement about what the picture portrayed was not evidence and was patently improper.

Appellant’s objection should have been sustained. The statement that appellant could introduce it if he wished certainly did not cure the error, or erase the manifestly prejudicial effect of the prosecuting attorney’s statements or the trial court’s failure to sustain the objections. It was not appellant’s responsibility to lay the foundation for the introduction of the picture; and he should not have been called upon to rebut statements of the prosecuting attorney that are not supported by evidence. It should be noted that the picture was never introduced or offered for identification and, in effect, the witness was impeached on a critical point by the unsupported statement of the prosecuting attorney. Even though leading questions are permissible on cross-examination, an attorney cannot be permitted to make statements of fact in the guise of cross-examination. Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496.

Although we find no reversible error on other points, there are matters that will arise on a retrial that we must treat in order to avoid potential reversible error on other points. Even though we consider the record deficient on two points for want of a proper proffer of proof, there are indications that such a proffer would have demonstrated that the trial court erred in excluding testimony about statements made to appellant by his daughter prior to the shooting relating to a telephone conversation between her and her husband and about previous actions and statements of the victim.

Appellant’s wife, Marie Brockwell, told of caring for her daughter after she was released from the hospital and said that she had gone to her daughter’s house the first night the latter was at her own home and had found her having trouble with her heart and her husband bathing her face and cursing loudly. Mrs. Brockwell testified that she invited her daughter to come to the Brockwell house. Objections to her stating that Griffin grabbed Goldie when she started to arise from her bed were sustained. When asked if she had run into any obstruction in helping her out of the house, an objection to the question was sustained before any answer was given, with the court ruling that the testimony was not admissible because appellant was not present. Subsequently, Mrs. Brockwell testified that her daughter had later talked on the telephone with Griffin. When Mrs. Brockwell was asked what her daughter had repeated to her and whether Brockwell was present at the time, objections were sustained. Appellant’s attorney then objected to the court’s ruling, arguing that the statement made by Goldie Griffin to her father was admissible to show what she told him and relevant to the determination whether it was sufficient to excite fear of Griffin. Appellant also now suggests that Mrs. Brockwell should have been permitted to testify as to facts she had communicated to her husband which tended to show that Brockwell was acting with reasonable apprehension of danger at the time of the shooting.

A homicide in defense of one’s habitation is justifiable. Ark. Stat. Ann. § 41-2231 (Repl. 1964). His house or place of residence is, in law, his castle. Ark. Stat. Ann. § 41-2233 (Repl. 1964). A manifest attempt and endeavor, in a violent, riotous or tumultous manner to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein, is a justification of homicide. Ark. Stat. Ann. § 41-2234 (Repl. 1964). To justify a killing, it must appear that the circumstances were sufficient to excite the fears of a reasonable person and that the killer really acted under their influence and not in a spirit of revenge. Ark. Stat. Ann. § 41-2235 (Repl. 1964). The burden of proving justification devolves upon the accused, once the killing is established. Ark. Stat. Ann. § 41-2246. Phillips v. Turney, 198 Ark. 364, 129 S.W. 2d 963. These statutes are, so far as they extend, a reenactment of the common law and leave the common law, as to the extent, manner and circumstances in or under which the right may be exercised, in force. Carpenter v. State, 62 Ark. 286, 36 S.W. 900.

An assault upon one’s house was considered as an assault upon him, at common law. Brown v. State, 55 Ark. 593, 18 S.W. 1051. It is so considered by this court. Hall v. State, 113 Ark. 454, 168 S.W. 1122. Generally, speaking, the defense of one’s habitation or members of his family or other persons therein is similar to, and an extension of, the right of self-defense. See Brown v. State, supra; Hall v. State, supra; Carpenter v. State, supra; Wheatley v. State, 93 Ark. 409, 125 S.W. 414; Crawford v. State, 231 Md. 354, 190 A. 2d 538 (1963). In either case, the danger to the person defended may be either real or apparent. Maples v. State, 225 Ark. 785, 286 S.W. 2d 15; Hall v. State, supra; Brown v. State, supra; Carpenter v. State, supra. Even though the danger may be only apparent to the slayer, it must be reasonably so or he must honestly or reasonably believe that the person defended is in such danger and that it is necessary to kill to save him from it. Brown v. State, supra; Carpenter v. State, supra; Maples v. State, supra.

In case of defense of habitation, however, it may be that the danger, real or apparent, need not, by the plain language of the statute, be the peril of death or great bodily harm in every case, because a violent attempt to enter with the apparent purpose of assaulting or offering personal violence does not necessarily imply the greater danger. Hayner v. People, 213 Ill. 142, 73 N.E. 792 (1904). In this case, there was no evidence that the victim was making a manifestly violent attempt to enter the home of appellant, but the right of one to use force to prevent an intrusion into his house does not depend upon the manner of the attempt. Brown v. State, supra. The reasonableness of the defender’s belief that there was danger of great bodily harm, at the least, is judged by the facts and circumstances as they appeared to him at the time. Sledge v. State, 507 S.W. 2d 726 (Tex. Cr. App., 1974); Miller v. Commonwealth, 188 Ky. 435, 222 S.W. 96 (1920). See also Sullivan v. State, 171 Ark. 768, 286 S.W. 939. Evidence which tends to explain the conduct or actions or state of mind of the deceased or the accused is admissible. See Lasater v. State, 133 Ark. 373, 198 S.W. 122; Rogers v. State, 152 Ark. 40, 237 S.W. 435.

All the sections of the Criminal Code defining justifiable homicide are parts of the same original statute and are so closely related that each to some extent explains or controls the meaning of the others. Brown v. State, supra. The rules regarding the defense of one’s person and regarding defense of his habitation are generally similar. State v. Miller, 267 N.C. 409, 148 S.E. 2d 279 (1966); Crawford v. State, 231 Md. 354, 190 A. 2d 538 (1963). Every fact that would be competent evidence in a case of self-defense by the person defended is competent where the killing by the accused is alleged to be in defense of another. See Commonwealth v. Girkey, 240 Ky. 382, 42 S.W. 2d 513 (1931). This is undoubtedly the rule where both the accused and the person defended are in the same dwelling. This includes evidence of hostile feelings and previous conduct toward and communicated threats and assaults against the person defended. King v. State, 55 Ark. 604, 19 S.W. 110; Brown v. State, supra; Hart v. State, 161 Ark. 649, 257 S.W. 354. See also, Commonwealth v. Girkey, supra.

Testimony showing the conduct, declarations of hostile purposes, and communicated or uncommunicated threats of the person slain on the day and near the time of killing are admissible as part of the res gestae in self-defense cases. Pitman v. State, 22 Ark. 354. A doctrine often announced by this court is that threats and conduct of the slain person, when they tend to explain or palliate the conduct of the accused are admissible circumstantial facts which are a part of the res gestae, whenever they are sufficiently connected with the acts and conduct of the parties at the time of the killing. Burton v. State, 82 Ark. 595, 102 S.W. 362; Palmore v. State, 29 Ark. 248. The same sort of evidence is admissible as tending to show who was the aggressor where the defense is defense of another. Brown v. State, supra; Trapp v. N.M., 225 F. 968 (8 Cir., 1915). Cf. Armstrong v. State, 251 Ark. 865, 475 S.W. 2d 541; Decker v. State, 234 Ark. 518, 353 S.W. 2d 168; Parsley v. State, 151 Ark. 246, 235 S.W. 797; Jackson v. State, 103 Ark. 21, 145 S.W. 559; Turner v. State, 128 Ark. 565, 195 S.W. 5.

Evidence of threats made by the victim of an assault to or against someone other than the accused is admissible when it tends to show the state of mind between the parties or to show who was the aggressor or to have probative valúe in determining whether the accused had reason to believe that danger of bodily harm was imminent. Rogers v. State, 152 Ark. 40, 237 S.W. 436. Furthermore, such statements may well have a bearing on the question of the motives of the parties. Prewitt v. State, 150 Ark. 279, 234 S.W. 35; Palmore v. State, supra, 29 Ark. 248.

Questions as to when efforts to enter the dwelling began, how far these persons may be permitted to proceed with safety to those assailed, the necessity for the use of fatal force and other such matters must be determined from the facts and circumstances existing at the time. They are usually, as here, questions of fact, not law. Brown v. State, supra. Hall v. State, supra.

Appellant had the burden of proving all the elements of justifiable homicide including the fact that the deceased was the aggressor and that appellant had a reasonable apprehension of danger to himself or the occupants of his household. He was entitled to have the jury consider all the conduct of the deceased from the time he commenced his threats against appellant’s daughter, who was, at the time of the fatal encounter, an occupant of appellant’s dwelling, until the shooting, in order to determine whether there was a necessity for appellant to act in her defense or the defense of his household, or whether he honestly believed that such a necessity existed. Hart v. State, supra, 161 Ark. 649. The case of Sanders v. State, 245 Ark. 321, 432 S.W. 2d 467 as to violent disposition of the person killed toward third persons is relied upon by the state. It is not applicable here, because defense of a third person or defense of habitation was not involved there. We did recognize, however, that even uncommunicated threats are admissible when there is doubt as to who was the aggressor. The court erred in excluding this testimony. Bailey v. People, supra, 54 Colo. 337, 130 P. 832, 45 LRA (ns) 145.

The state’s argument that there was no error in exclusion of this evidence because it would have only been cumulative to appellant’s own testimony is not persuasive, because corroboration of the testimony of the party most interested in the case is important. See Hall v. State, 64 Ark. 121, 40 S.W. 578.

We find no abuse of discretion on the part of the trial court in the admission of photographs over the objection of appellant. Furthermore, there was no error in the sustaining of an objection to the question by appellant’s attorney whether Griffin on some occasion was shaking his finger “in a menacing manner. ” The question was leading and called for a conclusion.

There was no error in the denial of a motion for a directed verdict. Appellant contends that there was no substantial evidence of malice or that the killing was done without reasonable apprehension of danger on his part. He further contends that Griffin had offered considerable provocation and that there was no evidence of any circumstances manifesting an abandoned or wicked disposition on the part of appellant. The fact that there was evidence that would have supported a finding favorable to appellant does not mean that there was no evidence to the contrary. The killing was admitted. The burden of showing circumstances that excused or justified the killing was upon appellant unless they were manifest from the state’s evidence. Ark. Stat. Ann. § 41-2246 (Repl. 1964). The killing was done with a deadly weapon. This in itself was sufficient basis for a finding of malice, if the jury found that the killing was without justification. Erby v. State, 253 Ark. 603, 487 S.W. 2d 266.

Griffin had not attempted to enter the house when he was shot. There was no evidence that Griffin was armed. The screen door was locked but the front door was not, even though Brockwell was expecting Griffin and testified that he latched both doors to prevent Griffin’s entry on the preceding day. Brockwell had told the officers that when he fired the fatal shot he was in the middle of his house. He testified that he was in a “partial stoop” when Griffin approached the door. Max Marbury, a neighbor who lived directly across the street testified that, on the day of the killing, Brockwell had called on the telephone and warned him to keep his family away from the front of the house because Brockwell was having trouble and might have to shoot across the road. Brockwell said nothing when he fired the fatal shot except to say to his wife and daughter, “Here he comes. You all go to the bedroom and stay in the bedroom.” Brockwell had kept his gun loaded with buckshot for two days. There was certainly sufficient evidence to warrant the submission of the case to the jury.

There was no error in the trial court’s exclusion of testimony of the circuit court clerk about statements made in Brockwell’s efforts to obtain a restraining order against Griffin, because they were self-serving.

Appellant has massed several points together in his brief. We consider the following points as waived because they were not argued. They were:

THE COURT ERRED IN OVERRULING DEFENDANT’S OBJECTION TO CROSS-EXAMINING DEFENDANT’S WITNESS AS TO WHETHER A RESTRAINING ORDER IS EFFECTIVE.
THE COURT ERRED IN ADMITTING IRRELEVANT AND IMMATERIAL EVIDENCE AGAINST THE DEFENDANT.
THE COURT ERRED IN REFUSING TESTIMONY REGARDING APPELLANT’S KNOWLEDGE OF MARRIAGE PROBLEMS BETWEEN APPELLANT’S DAUGHTER AND THE VICTIM.
THE COURT ERRED IN PERMITTING PROSECUTING ATTORNEY TO CROSS-EXAMINE DEFENSE WITNESS CONCERNING WHO HELD TITLE TO THE BROCKWELL HOUSE.
THE COURT ERRED IN PERMITTING PROSECUTING ATTORNEY TO CROSS-EXAMINE DEPUTY CIRCUIT CLERK REGARDING PARTIES AND PURPOSES OF RESTRAINING ORDER.
THE COURT ERRED IN REFUSING TESTIMONY OF CONVERSATIONS HAD BETWEEN THE DEPUTY PROSECUTING ATTORNEY AND THE APPELLANT PRIOR TO THE SHOOTING AS TO WHETHER APPELLANT CONSIDERED THE DECEASED A VIOLENT PERSON.

We do not agree with appellant that mere statement of any of these points is sufficient argument for reversal.

We do not agree with appellant that the trial court permitted the prosecuting attorney to harass defense counsel in examination of appellant. The examination was rather extensive in showing the condition of appellant’s daughter’s health. In the first place, after considerable argument, the court permitted appellant to pursue the line of examination, as far as he liked. In the next place, the court has some discretion in controlling the extent of examination on a particular matter, especially when it is of secondary importance.

We find no error in the giving of court’s instruction No. 16. Appellant made no objection to remarks of the prosecuting attorney in closing argument or to those of the trial judge of which he now complains on appeal. Some of them will not likely recur on retrial; others are clearly not improper and any that were could have been corrected if a timely objection had been made. For these reasons, we forego further discussion.

The judgment is reversed and the cause remanded.

Byrd, J., concurs in the result.

Harris, C.J., and Jones, J., dissent.

Carleton Harris, Chief Justice,

dissenting. I cannot agree that the case should be reversed for the reason given by the majority.

In the first place, I find nothing in the record wherein Brockwell states that the reason he could not see whether Griffin had a gun was because the latter’s shirt was hanging out. In fact, the record reveals that however the shirt was being worn (hanging or “tucked in”), this had no effect on what Brockwell could, or could not, see. From the record (cross-examination of Brockwell):

“Q. When he was coming to the house you said that you couldn’t see his hands?
A I did not.
Q Why couldn’t you see his hands?
A I couldn’t say. I don’t know whether he had them behind him like this is the only reason that I could figure that I couldn’t see his hands.
Q Well, you mentioned something about he had a long shirt on.
A Yes sir, he had a long shirt on, but his hands was behind him.”

Now, if Brockwell could see that Griffin’s hands were behind him, he certainly could have seen any movement of the hands wherein Griffin was endeavoring to get a gun out from under his shirt. Brockwell never testified that Griffin made any movement with his hands before the shooting; to the contrary, he emphatically stated that he saw no gesture or move by Griffin until he [Brockwell] fired, at which time the victim clutched himself with his right hand. Of course, if Brockwell was contending that Griffin had a gun behind his back, I cannot see the relevance of whether his shirt was in or out.

It is also my opinion that a proper objection was not made to the offer to introduce the photograph, i.e., counsel did not state that there was no proper foundation, i.e., no evidence that the shirt tail was found “tucked in” after the shooting; rather, counsel simply stated, “I don’t want the jury to be able to determine anything from something that happened after the shooting, I am making an objection.” The court never ruled on the objection, and of course, the burden is on the party making the objection to obtain a ruling. Downs v. State, 231 Ark. 466, 330 S.W. 2d 281. The photograph was not placed in evidence.

At any rate, since it is clear to me from Brockwell’s testimony that the arrangement of the shirt tail did not prevent Brockwell from knowing whether Griffin was reaching for a gun, I do not see how any prejudicial error could have resulted.

I would affirm.

Jones, J., joins in this dissent.

      The right of one to defend his close relatives from attack is widely recognized. This is so even when the “attacker” is the husband of the person defended. Bailey v. People, 54 Colo. 337, 130 P. 832, 45 LRA (ns) 145 (1913).


author: Conley Byrd, Justice. Carleton Harris, Chief Justice, John A. Fogleman, Justice,

text:
    The MAYOR & CITY COUNCIL of El Dorado v. EL DORADO BROADCASTING COMPANY and Carl CONNERTON
    76-99
    544 S.W. 2d 206
    Opinion delivered December 20, 1976 (In Banc)

      7- V. Spencer, III, City Atty., for appellants.
    No brief for appellee.
   Conley Byrd, Justice.

Following some complaints by the black residents of the City of El Dorado about the use of federal revenue funds, the mayor held a conference in his office, at which four of the city’s eight aldermen were in attendance, together with the city attorney and a man from the Mediation Service of the U.S. Department of Justice. Carl Connerton, a news reporter, was refused admittance to that conference. The record indicates that as a result of that meeting the city attorney was directed to prepare a resolution for the next formal city council meeting. The trial court entered a declaratory judgment to the effect that a meeting of any number, less than a quorum, of the members of the city council is subject to the Freedom of Information Act if the members of the council discuss, or take action on any matter on-which foreseeable action will be taken. The trial court’s order also emphasized that the Freedom of Information Act did not apply to meetings of any number of the city council for purposes of only obtaining information. The city councilmen appeal contending that the Freedom of Information Act should not be applied to a group of individual members of a governing body, less in number than a quorum, who meet either formally or informally on a matter on which foreseeable action might be taken, and who are not delegated on behalf of the governing body to perform any function whatsoever. In other words, appellants contend that the Freedom of Information Act should not be extended past the “Committee” level envisioned in Arkansas Gazette Co. v. Pickens, 258 Ark. 69, 522 S.W. 2d 350 (1975). We cannot agree with appellants.

Ark. Stat. Ann. § 12-2802 (Repl. 1968), provides:

“12-2802. Declaration of public policy. — It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this act [§§ 12-2801 — 12-2807] is adopted, making it possible for them, or their representatives, to learn and to report fully the activities of their public officials. [Acts 1967, No. 93, § 2, p. 208.]”

Ark. Stat. Ann. § 12-2805 provides:

“12-2805. Open public meetings. — Except as otherwise specifically provided by law, all meetings formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts, and all boards, bureaus, commissions, or organizations of the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds, shall be public meetings.”

In discussing informal meetings the Court in Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 69 Cal. Rptr. 480, 263 Cal. App. 2d 41 (1968) stated:

“. . . An informal conference or caucus permits crystallization of secret decisions to a point just short of ceremonial acceptance. There is rarely any purpose to a nonpublic pre-meeting conference except to conduct some part of the decisional process behind closed doors

In the Gazette case, supra, we pointed out:

“. . . When the General Assembly used the expression ‘to learn and report fully [our emphasis] the activities of their public officials’, it meant not only the action taken on particular matters, but likewise the reasons for taking that action. . . .”

The Freedom of Information Act applies alike to formal and informal meetings and since we are required to give the Act a liberal interpretation, we cannot agree with appellants that it applies only to meetings of officially designated committees. We can think of no reason for the Act specifying its applicability to informal meetings of governmental bodies unless it was intended to cover informal but unofficial group meetings for the discussion of governmental business as distinguished from those contacts by the individual members that occur in the daily lives of every public official. Any other construction would obliterate the word “informal” as applied to meetings and make it simpler to evade the Act than to comply with it.

It has been suggested that the judgment appealed from is too far reaching in that it would apply to any chance meeting of any two members of a governmental agency or body. The suggestion that the trial court’s order is too broad has not been raised by the appellants. The appellants’ argument as set forth in their conclusion is as follows:

“It is respectfully submitted that the laudatory purpose of our Freedom of Information Act would be protected and the public interest best served if the Act were not judicially extended to meetings of members of a governing body, not a committee, and less in number than a quorum, who discuss a matter on which foreseeable action might be taken. Certainly, such a group could not take ‘official action,’ nor could they bind the governing body in any way. Their actions would be limited, by operation of law, only to discussions.”

Furthermore, we do not interpret the trial court’s judgment as applying the Freedom of Information Act to a chance meeting or even a planned meeting of any two members of the city council. By its very terms the trial court’s order applies only to those group meetings such as the facts here showed — i.e. any group meeting called by the mayor or any member of the city council at which members of the city council, less in number than a quorum meet for the purpose of discussing or taking any action on any matter on which foreseeable action will be taken by the city council.

Affirmed.

Harris, C.J., and Fogleman, J., dissent.

Carleton Harris, Chief Justice,

dissenting. I would affirm the judgment, if modified to confine the holding to the particular facts of this case, which I consider to be in violation of the Freedom of Information Act. However, the opinion, in my view, goes much further, and I accordingly dissent.

John A. Fogleman, Justice,

dissenting. My task would be easier if I could be certain exactly what the majority has held. The judgment of the lower court is affirmed. The majority states that it held that a meeting of any number less than a quorum of the members of the City Council of El Dorado is subject to the Freedom of Information Act, if the members of the council discuss, or take action on any matter on which foreseeable action will be taken. Then by invisible legerdemain, it does not construe the judgment to apply to any two members of the city council. And then it says that by its very terms the trial court’s order applies only to those group meetings called by the mayor or any member of the city council, less in number than a quorum, for the purpose of discussing or taking any action on any matter on which foreseeable action will be taken by the council. No two of the three statements relating to the court’s holding are consistent with each other.

I would first suggest that we should modify the court’s judgment so that it applies to the facts of the particular controversy only. That related to a meeting called by the mayor, with four of eight council members and the city attorney present. It is a fair inference that the preparation of a resolution for action by the council was the direct result of this meeting, although the proposition is not without dispute. If the only question involved was whether there was substantial evidence to support a finding that the particular meeting involved violated the Freedom of Information Act, I would agree that the judgment should be affirmed. Anything beyond that was an advisory opinion, the giving of which is consistently shunned by this court and beyond the purposes of the Declaratory Judgment Act. Andres v. First Arkansas Development Co., 230 Ark. 594, 324 S.W. 2d 97. I submit that the action taken here is subversive of the salutary purposes of the Declaratory Judgment Act. Such a result could, and should, be easily avoided.

The purpose of the Declaratory Judgment Act was considered in Andres. There it was pointed out that the requisite precedent condition to declaratory relief is a justiciable controversy, i.e., a controversy in which a claim of right is asserted against one who has an interest in contesting it. It was also emphasized that a declaratory judgment should not be granted unless the danger or dilemma of the plaintiff is present, not contingent upon the happening of hypothetical events, and that the prejudice to his position is actual and genuine, and not merely possible, speculative, contingent and remote. Whatever the reasons for not responding, appellees’ failure to file a brief here is clearly indicative that they have no present danger or dilemma and that any issue, beyond the propriety of the meeting actually held, which gave rise to the controversy, is contingent, indeed, upon the happening of hypothetical future events. It also makes their prejudice appear to be highly speculative, contingent and remote.

The court before which a proceeding is pending cannot enlarge the issue beyond those raised by the pleadings. Weber v. Pryor, 259 Ark. 153, 531 S.W. 2d 708. Both the trial court and this court have extended the issues. The appellees, who did not even favor us with a brief, and who have not pursued their cross-appeal, had requested notice of the following:

1. Any and all meetings of any officially designated committee of the City Council of El Dorado, Arkansas.
2. Any meeting called by the Mayor or any member of the City Council at which members of the City Council, less in number than a quorum, who do not constitute a committee of the City Council, meet for the sole purpose of discussing matters or receiving information pertaining to the public business of the City of El Dorado, Arkansas. [Emphasis mine.]
3. Any time the Mayor requests as many as four members of the City Council plus the Mayor to meet in the Mayor’s office for the purpose of receiving a report or information from any representative of a federal or state governmental agency, which report or information pertains to the public business of the City of El Dorado.

The city recognized appellees ’ entitlement to notice in accordance with Item 1 but not Items 2 and 3.

The point relied on by appellants for reversal is:

A MEETING OF LESS THAN A QUORUM OF A GOVERNING BODY, NOT DESIGNATED BY THE GOVERNING BODY AS A COMMITTEE AND NOT AUTHORIZED COLLECTIVELY IN ANY MANNER WHATSOEVER TO ACT FOR THE GOVERNING BODY, WHO DISCUSS, OR ATTEMPT TO “TAKE ACTION” ON ANY MATTER ON WHICH FORESEEABLE ACTION WILL BE TAKEN BY THE GOVERNING BODY, IS NOT A “MEETING” WITHIN THE MEANING OF THE FREEDOM OF INFORMATION ACT OF THE STATE OF ARKANSAS.

Not only does the majority, in saying that appellant did not argue that the trial court order was too broad, overlook the statement of the only point urged for reversal, it totally ignores a vital part of appellant’s argument, viz:

The ruling of the lower court (T. 68) would in effect, extend the Freedom of Information Act past the “committee” level envisioned by this court in the Gazette case into an area which would place a discussion of a public issue on which foreseeable action is contemplated, between two or more members of a governing body, not constituting a committee and less than a quorum, and not authorized collectively in any matter whatsoever to act for the governing body, to be directly within the purview of the Freedom of Information Act.
The appellants certainly agree that “public business should be performed in an open and public manner,” but it is also certainly true that a group of aldermen less in number than a quorum and not constituting a committee have no authority to “perform” public business. As the California Supreme Court said in Adler v. City Council of Culver City, 7 Cal. Rpts. 805 (1960), such a gathering is not a “meeting” in the legal sense. The California Supreme Court goes on to point out:
“As stated by one of the text-writers, ‘the general rule is that, to bind the municipality, the council or legislative body must be duly assembled and act in the mode prescribed by the law of its creation, evidenced by an order entered by record, and such act, if legislative in character, must ordinarily be by ordinance, by-law or resolution, or something equivalent thereto.’ McQuillin, Municipal Corporations, 2d Ed., Vol. 2, Section 602, p. 529. Unless, therefore, the members of the council formally come together, in the manner required by law, for the purpose of joint discussion, decision and action with respect to municipal affairs there can be no ‘meeting’ of this governing body within the legally accepted sense of the terms, for the individual or separate acts of a member or the unofficial agreements of all or a part of the members of the council are ineffectual and without binding force; joint, official deliberation and action as provided by law being essential to give validity to the acts of the council.”
* * *
Certainly officially delegated committees of the city council are covered by the act under the authority of the Gazette case, because they are an “alter ego” of the “governing body,” authorized by the governing body to fulfill certain functions. Ark. Stats. Anno. 12-2805 states as follows:
Except as otherwise specifically provided by law, all meetings formal or informal, special or regular of the governing bodies of all municipalities . . . should be public meetings.
This Court found in the Gazette case that this act applied to committees of “governing bodies” under the rationale that a “parent body could divide itself into groups of small committees, each member of the committee thus having a chance to commit himself concerning a matter on which foreseeable action would be taken by the parent authority.” Under the Gazette case, the parent body could not form small committees which can meet in closed session. Such an attempt would be illegal.
The pivotal and distinguishing feature between the Gazette case and the interpretation of the act by the lower court is that the Gazette case dealt with an officially delegated “committee” of the “board” and the court is here concerned with, not a “committee,” but a group of individual members of a governing body, less in number than a quorum, who meet either formally or informally on a matter on which foreseeable action might be taken, but who are not delegated on behalf of the “governing body” to perform any function whatsoever on behalf of the governing body. Certainly, such a strained construction of the Act to cover such a situation is far beyond the liberal rule of construction applied in the interpretation of this act, *****

No application of this or any similar act has been so far reaching. The hypothetical meeting of less than a quorum dealt with in the majority opinion would not be a committee, would not be authorized to take or recommend any action and may meet for purposes in addition to discussion of matters on which “foreseeable action” will be taken. I fail to see how any decision binding either on the city council or the participants could have been made at the gathering proscribed by this opinion. I cannot escape the conclusion that the majority has not read the act beyond its first section, the declaration of public policy. Then the majority has undertaken to usurp a legislative function, i.e., implementation of the policy declared by creating the “foreseeable action” requirement. A meeting must fall within a classification of legality or illegality at the time it is held. This act carries criminal penalties for violation. This “if so” “then so” interpretation has serious constitutional implications.

By applying the majority interpretation, it will never be necessary to decide whether there was a “meeting,” so long as three (or is it two?) members participate at the behest of one of them. Or can two members do just anything without violating the act? Just what “action” by councilmen constituting neither a committee nor a majority of the city’s governing body is, I don’t suppose will ever be defined. And what does “taking any action on any matter on which foreseeable action will be taken by the city council” mean? For that matter what is the meaning of “foreseeable action will be taken”? If the action is foreseeable, then what is the significance of the minority’s “action”?

I submit that the majority’s construction of the act cannot be found anywhere in its language, even by inference. I daresay that the most ardent advocate of the Freedom of Information Act never dreamed that its scope could possibly be taken to be so extensive or confused. If the act is so comprehensive, it was a foolish extravagance to waste so much judicial time and talent in arriving at the conclusion that a meeting of a committee of a governing board must be a public meeting in Arkansas Gazette Company v. Pickens, 258 Ark. 69, 522 S.W. 2d 350.

In my concurring opinion in the Pickens case I observed that the extension of the act, to cover meetings of committees which were less than a quorum and did not have authority to act, was accomplished by rhetoric rather than reason. Here, I find both missing. I find only judicial legislation amending the Freedom of Information Act. By it the court has extended the scope of the act beyond any statutory or judicial decision in any jurisdiction. In the most extreme position taken by any other court prior to the decision of this court in Arkansas Gazette Co. v. Pickens, supra, an intermediate court in Florida, in Bigelow v. Howze, 291 So. 2d 645 (1974) said:

We do not suggest that the committee cannot interview others privately concerning the subject matter of the committee’s business or discuss among itself in private those matters necessary to carry out the investigative aspects of the committee’s responsibility. Cf. Basset [Bassett] v. Braddock, Fla. 1972, 262 So. 2d 425. However, at the point where the members of the committee who are also members of the public body make decisions with respect to the committee’s recommendation, this discussion must be conducted at a meeting at which the public has been given notice and a reasonable opportunity to attend.

The proper application of the “public meetings” provision is expressed in McLarty v. Board of Regents, 231 Ga. 22, 200 S.E. 2d 117 (1973) thus:

*** It applies to the meetings of the variously described bodies which are empowered to act officially for the State and at which such official action is taken. Official action is action which is taken by virtue of power granted by law, or by virtue of the office held, to act for and in behalf of the State. The “Sunshine Law” does not encompass the innumerable groups which are organized and meet for the purpose of collecting information, making recommendations, and rendering advice but which have no authority to make governmental decisions and act for the State. What the law seeks to eliminate are closed meetings which engender in the people a distrust of its officials who are clothed with the power to act in their name. It declares that the people, who possess ultimate sovereignty under our form of government, are entitled to observe the actions of those described bodies when exercising the power delegated to them to act on behalf of the people in the name of the State. ***

I feel so strongly about the matter that I am compelled to repeat a part of my concurring opinion in Arkansas Gazette Co. v. Pickens, supra when I said:

It can be argued with considerable force that the result of the extension made here is an impediment to informal discussions and exchange of information among committee members, and consultation by them with experts or informed individuals having special qualifications to speak upon problems being investigated by the committee. There is an appropriate investigative and exploratory stage preceding many actions by governmental bodies and agencies. At this stage, it may be said there are advantages to the public in permitting preliminary discussions in which there can be greater freedom of expression without fear of benefit-ting special interests, harming reputations, inviting pressure from special interests, creating a public image of ignorance by searching questions, producing demagogic oratory, exposing disagreements of subordinates with policy determinations they must administer, or “freezing” members into publicly expressed opinions they might well prefer to abandon. In such initial stages, it is well that much be done and said which is exploratory, experimental and hypothetical and open meetings could prove to be an impediment to a free exchange of ideas of that sort. See Open Meeting Statutes: The Press Fights for the “Right to Know,” 75 Harvard Law Review 1199, 1202, 1219 (1962). The writer of that article, an advocate of the extension of Freedom of Information Acts, demonstrates that a policy determination is involved in this language found at p. 1206:
. . . Whether the courts will construe less explicit statutes as applying to subordinate committees and agencies is problematical. Since such groups have no power to make governmental decisions and since their recommendations must be considered in open session by the parent body, the need for public meetings is less compelling; indeed, privacy may facilitate the gathering of information as well as preliminary discussion. But if in practice recommendations are adopted with only perfunctory consideration by the parent group, the public will be deprived of information about the actual process of decision. And since there seems to be no particular reason for leaving subordinate groups always free to meet in private, the preponderant interest in informing the public seems sufficient to justify their inclusion.
Likewise, an Ohio court has recognized the impossibility of satisfactory accomplishment of the desired freedom of discussion and exchange of ideas essential to clear understanding and thinking under a spotlight or before a microphone. Dayton Newspapers, Inc. v. City of Dayton, 28 Ohio App. 2d 95, 274 N.E. 2d 766 (1971).
Public policy matters are involved. Fundamentally, the legislative branch declares public policy. If the common law is to be changed by extension of the Freedom of Information Act to all committees of every public board, commission, agency, organization or governing body, it should be done, as it was in California and New Jersey, by the General Assembly. See Sacramento Newspaper Guild v. Sacramento Co. Bd. of Supervisors, 263 Cal. App. 2d 41, 69 Cal. Rptr. 480 (1968); Comment, Access to Government Information (Blum), 54 California Law Review 1650, 1653 (1966); Wolf v. Zoning Board of Adjustment of Park Ridge, 79 N.J. Super. 546, 192 A. 2d 305 (1963). The great disadvantage in courts’ attempting to declare public policy lies in the fact that attention is necessarily focused on the particular interests of the litigants. In contrast, the legislature has the advantage of having all perspectives presented and considered in making such determinations. This determination should have been left with the General Assembly where it belongs, both as a policy decision and as a change in the common law. Even the Florida Supreme Court has finally recognized the hazards of “judicial implementation.” Bassett v. Braddock, Fla., 262 So. 2d 425 (1972).

See also, Comment, Access to Governmental Information in California, (Blum) 54 California Law Review 1650, 1651, 1655 (1966).

In Bassett, the Florida Supreme Court said:

Every action emanates from thoughts and creations of the mind and exchanges with others. These are perhaps “deliberations” in a sense but hardly demanded to be brought forward in the spoken word at a public meeting. To carry matters to such an extreme approaches the ridiculous; it would defeat any meaningful and productive process of government. One must maintain perspective on a broad provision such as this legislative enactment, in its application to the actual workings of an active Board fraught with many and varied problems and demands.

I would also reiterate my belief in the act and the policy declared in it. The Florida Supreme Court in Board of Public Instruction v. Doran, 224 So. 2d 693 (Fla., 1969) articulated these views better than I can. The court said:

The right of the public to be present and to be heard during all phases of enactments by boards and commissions is a source of strength in our country. During past years tendencies toward secrecy in public affairs have been the subject of extensive criticism. Terms such as managed news, secret meetings, closed records, executive sessions, and study sessions have become synonymous with “hanky panky” in the minds of public-spirited citizens. One purpose of the Sunshine Law was to maintain the faith of the public in governmental agencies. Regardless of their good intentions, these specified boards and commissions, through devious ways, should not be allowed to deprive the public of this inalienable right to be present and to be heard at all deliberations wherein decisions affecting the public are being made.

In Adler v. City Council, 184 Cal. App. 2d 763, 7 Cal. Rptr. 805 (1960), I find this appropriate language:

It seems quite evident that the language of the Brown Act was not directed at anything less than a formal meeting of a city council or one of the city’s subordinate agencies. If it were, no practical line could be drawn. The members of the planning commission and the city council (whether the full number or only two or three members) would be impeded in conducting informal discussions among themselves, thus exchanging information, would be handicapped in viewing property upon which they were about to legislate, would be unable to confer with real estate experts or with their planning director or with informed individuals having special qualifications to speak upon municipal problems.

I must call attention to the fact that the meeting being discussed in Sacramento Newspaper Guild v. Sacramento County Board of Supervisors, 69 Cal. Rptr. 480, 263 Cal. App. 2d 41 (1968) included all of the county supervisors and several other county officials. The injunction issued applied only to a majority of the board, not less.

I must also point out that this judicial implementation of the act will subject far more persons to prosecution under the act than the General Assembly intended. It is at least arguable that there is a possibility that many acts of governing bodies and boards may be voided for causes over which a majority had no control.

I would reverse the circuit court judgment to the extent indicated.

If, however, the court would, it could modify the judgment of the trial court to limit it to the sustention of the position of appellees as to the particular meeting and to eliminate from it any declaratory judgment beyond that particular issue. In addition to the reasons previously given for so limiting our judgment in this case, there are others. Ark. Stat. Ann. § 34-2505 (Repl. 1962) permits a court to refuse to enter a declaratory judgment where the judgment would not terminate the uncertainty or controversy giving rise to the proceedings. In this respect the remarks of Dean Joe Covington, an advocate of liberal use of the procedure are appropriate. In his article, “Act 274, The Declaratory Judgment Act,” 7 Ark. Law Review 306, 310, he said:

In declaratory proceedings courts have been careful to limit the conception of a justiciable controversy to guard against mere advisory opinions and decisions on moot questions. To exclude consideration of issues under this category courts frequently state that an “actual controversy” is necessary. Some state statutes have a specific provision requiring an “actual controversy,” but Act 274 has no such provision though there is a reference in Sections 4 and 5 to “uncertainty or controversy.” Some cases have limited declaratory relief to instances of actual physical damage. It is true that there must be a genuine controversy which is ready for judicial determination so that a judgment would at least serve to “remove an uncertainty” and would be of some practical assistance to the parties. The court may dismiss a petition on this ground when the plaintiff will not be endangered or forced to decide on action concerning asserted rights which depend upon some contingency which does not seem sufficiently likely to take place. Some courts have said there must be an actual controversy or “the ripening seeds of a controversy.” A proceeding may be regarded as justiciable if a coercive cause of action has already accrued to one of the parties with respect to the issue, or if it is relatively certain that coercive litigation will eventually ensue between the same parties if a declaration is refused. It is strongly urged that “controversy” be given a liberal construction in accordance with the mandate to this effect found in Section 11.
It is clear that a cause of action in the conventional meaning of the term is not necessary for declaratory relief. “Cause of action” is a very elusive term, but in a sense the declaratory judgment statute may be regarded as enlarging the conception of a “cause of action” for it does permit suit on factual situations not heretofore justiciable.
Power of the courts to grant declaratory relief is specifically made discretionary in Section 5 of Act 274. It is there stated that the court may refuse to enter the judgment or decree if such a decision “would not terminate the uncertainty or controversy giving rise to the proceeding.” This provision was included in the Uniform Act as a part of the established jurisprudence as a guide to the courts, indicating that the declaratory relief was not something to be literally followed, but that the court could exercise its judgment by dismissing petitions for declaratory relief when such relief would serve no useful purpose. Despite the broad language of the statute, this discretion should not be regarded as absolute. It should be limited to a determination of the usefulness of the judgment or decree. It may be regarded as similar to the discretion of chancery courts in exercising equity jurisdiction. Dismissal of a petition for declaratory relief is subject to review on appeal and the appellate court should exercise its own judgment on the propriety of the refusal or grant of relief.
As an exercise of this discretion courts have shown a reluctance to hear declaratory petitions based on future rights. But some recent cases under a more liberal construction have granted relief under certain circumstances involving future rights where all parties who could claim an interest are represented and an actual controversy exists.

The courts definitely have the discretion to deny declaratory relief in proper cases. Prof. Borchard, perhaps the father of declaratory judgment procedure in the United States addresses this subject in the light of the section which appears as § 34-2505. In his work, Declaratory Judgments (2d Ed.), p. 304, et seq, he says:

The declaration will be refused where in the court’s opinion it is inexpedient, for some reason outside the record, such as public policy, or where the question might be raised again in some other way or where it would be embarrassing in the operations of government. It may also be refused where by laches or defaults or inequity the plaintiff has weakened his claim to relief, or where it would result in possible injustice to third persons. *** It will be refused where it would be futile or useless under the circumstances, for example, where the one against whom it is made is privileged to escape its effects by some action within his own discretion. As already observed, it will be refused where it is superfluous, or where it is not practical for the court to reach a conclusion, e.g., the effect of a prospective structure, or where it will serve no practical purpose in terminating uncertainty or insecurity. Thus, it will not be made “in the air,” or in the abstract, i.e., without definite concrete application to a particular state of facts which the court can by the declaration control and relieve and thereby settle the controversy. [Emphasis mine.]

He also says:

This rule merely embodies the established Anglo-American practice in all jurisdictions and indicates both the practical and remedial scope and limitations of the relief. Yet the discretion granted, however wide and unlimited in appearance, is a judicial discretion, hardened by experience into rule, and its exercise is subject to appellate review.
*** There is and there must be a broad discretion in determining whether a declaration will serve a useful purpose, but the many considerations which enter into this matter of policy should not be left exclusively to a lower court, but should be weighed by the court of appeal. The grant of equitable remedies is also generally a matter of discretion and policy, hardened by experience into rule; but it would hardly be thought proper for an appellate court to suggest that the propriety of or discretion in granting an equitable remedy should be left to the trial court, and would not be reviewed by an appellate court except for “abuse.” Equally unsound is the suggestion in its application to declaratory judgments. *** But the appellate court in all cases must exercise its own judgment on the propriety of the refusal or grant and not rely on the judgment of the trial court. Otherwise the remedy is actually “abused.”

If the court would exercise its discretion to modify the judgment to limit it as I have indicated, I would concur.

      Certainly the cross-appeal should be dismissed.


author: Frank Holt, Justice. Elsijane T. Roy, Justice,

text:
    Mr. and Mrs. Rufus E. CAPPS v. McCARLEY AND COMPANY
    76-138
    544 S.W. 2d 850
    Opinion delivered December 20, 1976 (In Banc)
    [Rehearing denied January 31, 1977.]

      Rubens, Rubens & Raney, by: Kent J. Ruben's, for appellants.

      Reid, Burge & Prevallet, for appellee.
   Frank Holt, Justice.

This is an action to recover damages for the physical injuries sustained by the appellant, Mrs. Capps, when she slipped and fell on a wet spot in her garage. Appellants alleged that the accident was caused by the appellee contractor’s negligence in failing to provide adequate drainage in the construction of the driveway of appellants’ home and in failing to correct the alleged defect after notice was given to it. At the close of appellants’ proof, the trial court granted appellee’s motion for a directed verdict. Appellants contend that the trial court erred in finding that, as a matter of law, there was an assumption of risk by Mrs. Capps.

Assumption of risk bars recovery whenever it is shown, as a matter of law, that a dangerous situation existed which was inconsistent with the safety of the plaintiff; that the plaintiff knew the dangerous situation existed and realized the risk of injury from it; and that the plaintiff voluntarily exposed himself to the dangerous situation which proximately caused his claimed injuries. Spradlin v. Klump et al, 244 Ark. 841, 427 S.W. 2d 542 (1968); McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753 (1972); Price v. Daughterty, 253 Ark. 421, 486 S.W. 2d 528 (1972); and AMI Civil 2d § 612.

The primary thrust of appellants’ argument is that the testimony of Mrs. Capps clearly shows there was no voluntary assumption of risk. During the three months the appellants had occupied their new home, they had noticed on several occasions that water collected in the garage following a rainfall. This was caused by a half inch “crown” in the driveway during its construction. The “crown” diverted water into the garage. Appellee was made aware of this defect and had not corrected it at the time of the accident. Mrs. Capps worked during the daytime and regularly returned home at lunchtime to tend to the needs of her mother who was bedfast as a result of a broken hip. On the day Mrs. Capps fell, it rained just before lunchtime resulting in the collection of water in the garage. There were three entrances into her house. The entrances, other than from the garage, were locked from the inside. Mrs. Capps testified that she used the garage door entrance because she “had no other choice but to go through the water.” However, she walked “very carefully” to avoid a mishap since she recognized that it was “dangerous” to walk through the water.

In McDonald v. Hickman, supra, we quoted with approval:

As Prosser puts it: ‘Knowledge of the risk is the watchword of assumption of risk.’ Under ordinary circumstances the plaintiff will not be taken to assume any risk of either activities or conditions of which he is ignorant. Furthermore, he must not only know of the facts which create the danger, but he must comprehend and appreciate the danger itself. Prosser on Torts, § 68 (4th ed., 1971). See also Restatement of Torts (2d), § 496 D (1965) ....

In Price v. Daugherty, supra, we said:

Assumption of risk occurs only when the injured person actually knows and appreciates the danger. The standard is a subjective one, being based upon what the particular person in fact sees, knows, understands, and appreciates.

Here the defective condition was completely open and obvious. Mrs. Capps readily admitted on cross-examination that she saw, knew, and understood the hazardous condition and appreciated it to the extent that she felt it was necessary to walk “very carefully” in the area. This was not an emergency situation since Mrs. Capps regularly came home at lunchtime to tend to the needs of her mother. In the circumstances, although we view the evidence most favorable to appellants, as we do on appeal from a directed verdict, we must hold that the court correctly held that the appellants’ action is barred by Mrs. Capps’ assumption of the risk. See Spradlin v. Klump, el al, supra.

Appellants’ final contention for reversal is that the trial court erred in admitting an offer and acceptance agreement between the parties, because provision 9 of the agreement contains language which excludes certain warranties. This contention is without merit since it clearly appears from the record that the exhibit was not considered by the court in directing a verdict on the grounds of assumption of risk.

Affirmed.

Roy, J., dissents.

Elsijane T. Roy, Justice,

dissenting. I respectfully disagree with the majority opinion because Mrs. Capps presented substantial evidence to go to the jury on the question of whether she voluntarily assumed the risk of her injuries.

A voluntary act is one done without compulsion or obligation. The doctrine of assumption of risk can only be applied in cases where the person may reasonably elect whether he shall expose himself to the danger.

In Kuykendall v. Newgent, 255 Ark. 945, 504 S.W. 2d 344 (1974), appellee was employed as a deliveryman. He carried meat to his employer’s customers. While carrying a box weighing from 80 to 100 pounds he slipped and fell on an accumulation of ice at the delivery entrance. Both the trial court and this Court refused to hold that the appellee had assumed the risk as a matter of law.

Newgent admitted he knew it was dangerous to walk across the ice and stated he was being as careful as possible. When asked on cross-examination why it was his decision to walk across the icy spot, he replied “the only decision I had to make was to keep my job.” The Court on this issue stated:

* * * While Newgent may have been guilty of some negligence, we cannot say as a matter of law that such negligence exceeded that of appellants. Such issues are ordinarily a question of fact for the jury. (Citation omitted.)

See also Woodruff Electric Co-op. Corp. v. Daniel, 251 Ark. 468, 472 S.W. 2d 919 (1971).

Newgent felt it was necessary to cross the icy spot because his job demanded it. In the case at bar certainly no less impelling was the need for the daughter (appellant) to render necessary assistance to her mother who, according to appellant’s testimony, “had a broken hip and the ball and socket had deteriorated after the surgery.” Mrs. Capps stated her mother was bedfast, had no one with her and appellant had to come home at noon each day to assist with her bodily needs and “to give her medication” and “to take her food.” She then stated, “I had no other choice but to go through the water.” She was compelled by duty and obligation to take this course of action.

Neither can I agree with the statement of the majority that this was not an emergency. One definition of emergency is a “pressing need.” Certainly there was a continuing “pressing need” for the daughter to reach her mother at noon time and take care of her.

Prosser, Torts 4th Ed. § 68 (1971) (Voluntary Assumption of Risk) states:

The second important limitation upon the defense of assumption of risk is that the plaintiff is not barred from recovery unless his choice is a free and voluntary one. There must first of all, of course, be some manifestation of consent to relieve the defendant of the obligation of reasonable conduct. It is not every deliberate encountering of a known danger which is reasonably to be interpreted as evidence of such consent.* * *
. . . [T]he risk will not be taken to be assumed if it appears from his words, or from the facts of the situation, that he does not in fact consent to relieve the defendant of the obligation to protect him. * * *

There is absolutely nothing in the record to indicate appellants intended to relieve McCarley and Company from the admitted responsibility of repairing the defect in the driveway which caused the accumulation of water when it rained. To the contrary, appellants had made several demands for corrective action and each time appellee had promised to remedy the situation.

* * * In general, the plaintiff is not required to surrender a valuable legal right, such as the use of his own property as he sees fit, merely because the defendant’s conduct has threatened him with harm if the right is exergised. He is not, for example, required to forego pasturing his cattle in a field because the defendant has failed in its duty to fence its adjoining railway track. By placing him in the dilemma, the defendant has deprived him of his freedom of choice, and so cannot be heard to say that he has voluntarily assumed the risk. * * * (Italics supplied.)

Prosser, Torts, supra.

On appeal from a directed verdict the reviewing court must view the evidence in the light most favorable to the appellant, regardless of credibility, in determining if a question of fact exists for a jury’s consideration. Gramling v. Baltz el al, 253 Ark. 352, 485 S.W. 2d 183 (1972).

For the foregoing reasons, I would reverse and remand the case for a new trial.


author: John A. Fogleman, Justice.

text:
    Roger Dale PENNINGTON v. STATE of Arkansas
    CR 76-144
    545 S.W. 2d 72
    Opinion delivered January 10, 1977 (Division I)

      Harold L. Hall, Public Defender, by: John W. Achor, Chief Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Roger Dale Pennington was convicted for violating Ark. Stat. Ann. § 41-3508 (Repl. 1964) which proscribes escape from a penitentiary. He appeals alleging that the state failed to sufficiently prove that he was the same Roger Pennington who had been convicted of kidnapping and robbery and committed to the Department of Correction; or that his custody, at the State Hospital, was lawful.

To convict a person of the crime of escape in violation of § 41-3508 the state must present evidence that the accused was convicted of a crime, was committed to the Department of Correction and escaped from the custody of the Department. It is not sufficient merely to offer evidence that someone by the same name as the accused was convicted, but there must be evidence that the accused is the same identical person who was convicted. State v. Murphy, 10 Ark. 74.

The state submitted as evidence certified copies of a judgment and order rendered in St. Francis County on June 1, 1971, finding one Roger Pennington guilty of robbery and kidnapping and sentencing him to serve two concurrent 21-year sentences. The judgment ordered the clerk of the court to deliver a certified copy of the judgment to the Sheriff of St. Francis County to be delivered to the Department of Correction as authority for confinement of Pennington. The certified copy of the commitment recites that it was issued on June 10, 1971. The certified copy of the judgment also recites that the state’s attorney was Fletcher Long, Jr., defense attorney was Knox Kinney and the docket number was 7898.

The Superintendent of the Tucker Unit, Arkansas Department of Correction testified that he was responsible for the records of the inmates incarcerated there; that he had with him the original records of Roger Dale Pennington. He stated that Arkansas Department of Correction Admission Summary (state’s exhibit 2) and Status Assignment Release Date Record (state’s exhibit 3) were kept in the normal course of business and that it was the regular course of the business at Tucker to keep such records. Although appellant’s attorney objected at trial that there was an insufficient foundation laid for the admission of the records into evidence, this argument was not pursued on appeal and we cannot, without further research, say that the foundation was insufficient.

A copy of the admission summary, included in the record, bears the name Roger Pennington, inmate No. 62258. A photograph bearing the numbers 62258 and 6-19-71 is attached. This record recites that two concurrent 21-year sentences were rendered on June 1, 1971 in St. Francis County, docket number 7898, for the offense of robbery and kidnapping; that the state’s attorney was Fletcher Long and defense attorney was Knox Kinney. The copy of the Status Assignment Release Date Record included in the record bears the following: Inmate Name: Pennington, Roger; Date, 9-13-74; Assignment, Rel-State Hospital. The witness testified that this record shows that Pennington was sent out to the State Hospital on September 13, 1974.

Two other witnesses testified that they were employed at the State Hospital on October 30,1974. They stated that they recognized Pennington as having been a patient at the hospital on that day; that Pennington had been shackled with a leather ankle cuff to a wheelchair but that on the evening of October 30, 1974 the wheelchair was found empty, close to an open window; that they searched for Pennington but he was not found in the hospital or on the grounds.

Appellant does not allege that the state has failed to sufficiently prove that he was in the State Hospital on October 30, 1974, that he had been an inmate at Tucker, or that the prison records refer to him. He alleges only that the state has not presented sufficient evidence to prove that he is the same person who was convicted of robbery and kidnapping in St. Francis County on June 1, 1971, but does not otherwise challenge the accuracy of the records kept in the regular course of business.

Although it is incumbent on the state to present evidence that the accused is the same person who was previously convicted, the proof of identity may be circumstantial, State v. Murphy, supra. The identity of facts recited on the judgment and sentence with the Admission Summary could not likely have been the result of coincidence; therefore the state has sufficiently proved the identity of the appellant by circumstantial evidence, which is substantial.

Appellant’s second contention is also without merit. It is from the State Hospital that the appellant escaped, and he now claims that there is no evidence that he was in the lawful custody of the State Hospital. Ark. Stat. Ann. § 46-106 (Supp. 1975) provides that all commitments are to be made to the Department of Correction. It is provided in § 46-150 that an inmate may be taken, when necessary, to a medical facility outside the institution and in Ark. Stat. Ann. § 46-153 (Supp. 1975) that the Commissioner may transfer an inmate for observation and diagnosis to the State Hospital. It was not required, for the purposes of Ark. Stat. Ann. § 41-3508 that the state prove that a transfer of an inmate from one institution to another was necessary so long as it was within the authority of the Department to make such transfer. The state must prove only that the accused was in the custody of the Department of Correction when he escaped. The records in evidence and the testimony of the Superintendent of Tucker and the other witnesses are sufficient to show that the appellant was transferred from Tucker to the State Hsopital; therefore he was still in the custody of the Department of Correction when he escaped, insofar as Ark. Stat. Ann. § 41-3508 is concerned.

There is another matter which we must mention in connection with this appeal. Appellant moved to dismiss the deputy public defender as his attorney on this appeal. We denied that motion by a Per Curiam order of this court without prejudice to appellant’s filing a supplemental pro se brief on appeal with this court. When afforded the opportunity to do so, appellant failed to address himself to the issues on appeal. He simply filed a “Motion to Dismiss Appointed Counsel and Strike Attorney’s Brief” on December 17, 1976. This hand lettered document was nothing more than a renewal of his previous motion. By filing it, in spite of notice by the clerk of this court on November 24, 1976, that the pro se brief had not been received, appellant has waived the right to file such a brief.

The judgment is affirmed.

We agree. Harris, C.J., and George Rose Smith and Holt, JJ.


author: Frank Holt, Justice.

text:
    MFA INSURANCE COMPANY v. CITIZENS NATIONAL BANK of Hope, Arkansas, a corporation
    76-202
    545 S.W. 2d 70
    Opinion delivered January 10, 1976 (Division I)

      Graves <3? Graves, by: Albert Graves, Jr., for appellant.

      McMillan, Turner & McCorkle, by: Otis H. Turner, for appellee.
   Frank Holt, Justice.

In a suit on an insurance contract brought by appellee, the trial court, sitting as a jury, awarded appellee a judgment for $3,450, plus 6% interest, 12% penalty and $1,000 attorney’s fee. The insured (not a party here) had purchased an automobile with a loan from appellee bank which was named as loss payee on the policy. The purchaser made no payments and the appellee bank took possession after the automobile was damaged by fire. Appellant tendered payment for the damages based on the cost of repairs. Appellee refused and filed suit alleging it was entitled to recover the difference in the market value of the automobile before and after the fire since the car was “almost totally destroyed by fire.” For reversal of the judgment for appellee, the appellant asserts the trial court erred in applying the “before and after values” method in determining the measure of damages in this contract action.

The contract of insurance contains a provision which states:

10. Limits of Liability - **** the limit of the Company’s liability shall not exceed the actual cash value of the automobile, or if the loss is of a part thereof, the actual cash value of such part at the time of the loss, nor what it would then cost to repair or replace the property or such part thereof with other of like kind and quality, less depreciation .... (Italics supplied.)

Appellant argues that its liability is limited to the cost of repairing the automobile. Appellant relies upon Unigard Insurance Co. v. Wish, 254 Ark. 832, 496 S.W. 2d 392 (1973), and Tri-State Ins. v. McCraw, 252 Ark. 1259, 483 S.W. 2d 212 (1972), as typical cases in support of its argument. It is true that these cases hold that a limitation of liability as to property damage in an insurance contract is valid. The appellee acknowledges the validity of these provisions. However, it cites our cases as holding that the measure of damages is the difference in the market value of the vehicle immediately before and after the alleged damages. Home Insurance Co. v. Springdale Motor Co., 200 Ark. 893, 141 S.W. 2d 522 (1940); The Home Insurance Company of New York v. Williams, 201 Ark. 460, 145 S.W. 2d 743 (1940); Service Fire Ins. Co. v. Horn, 202 Ark. 300, 150 S.W. 2d 53 (1941); Motors Insurance Corp. v. Lopez, 217 Ark. 203, 229 S.W. 2d 228 (1950); Southern Farm Bureau Cas. Ins. Co. v. Gaither, 238 Ark. 50, 378 S.W. 2d 211 (1964); and Insured Lloyds v. Mayo, 244 Ark. 802, 427 S.W. 2d 164 (1968). Suffice it to say that we do not deem Unigard and Tri-State controlling here. In these cases the issue was not presented, as here, whether the repairs to a fire damaged vehicle with parts of like kind and quality would restore the car to its former condition.

Here the appellee adduced evidence that the cost of repairs with parts of other like kind and quality would not restore the vehicle to its former market value. Therefore, a fact question existed as to the proper measure of damages. In our view this is the better rule and seems to have general approval by the text writers.

In Couch on Insurance 2d, Vol. 15, § 54:240, it is stated:

Where the repairs by the insurer under a collision policy did not substantially restore the automobile to its former condition and value, the proper measure of damages was the difference in the value before it was wrecked and the value after it was wrecked, repaired, and tendered to the insured.

In 7 Am. Jur. 2d, Automobile Insurance, § 192, p. 532, it reads:

Generally, the proper measure of recovery under an automobile collision insurance policy is the difference in value of the vehicle before and after the accident, at least if it is not practicable to repair the vehicle, less any amount stipulated in a deductible clause. **** In other cases, though, where the motor vehicle could be repaired, it has been held or recognized that, subject to the operation of the deductible clause, the measure of recovery is the cost of repairs, not in excess of the value of the vehicle before the accident and providing the repairs restore the vehicle to its former market value. (Italics supplied.)

The testimony of appellee’s two expert witnesses was that, even with repairs, the vehicle would not have the same market value ($5,000) as it did prior to the fire. Although appellant’s own expert witness testified that the cost of repairs would be $1,370, he acknowledged that the loss in the market value of the vehicle was $2,200. Clearly, a fact question was made as to whether the repairs with parts of other kind and quality would or could not restore the vehicle to its prior value. There was substantial evidence supporting the trial court’s finding that repairs would not restore the car to its previous market value.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Byrd, JJ.


author: Elsijane T. Roy, Justice.

text:
    Warren RENFRO v. CITY OF CONWAY, Arkansas
    CR 76-199
    545 S.W. 2d 69
    Opinion delivered January 10, 1977 (Division ll)

      Guy H. Jones, Phil Stratton, Guy Jones, Jr. and Casey Jones, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant Warren Renfro was found guilty in the Municipal Court of Conway, Arkansas, on a count of overpossession and possession for sale of intoxicants and on a count of selling intoxicants in a dry county. He was fined $750 on each count. Appellant timely appealed the municipal court actions to the Circuit Court of Faulkner County. On October 6, 1975, appellant did not appear at a scheduled pre-trial hearing, and the trial court made a docket entry forfeiting the bail bonds on the appeals and affirmed the municipal court in both cases.

When the judgments reflecting the docket entries were filed appellant then filed motions to vacate and set aside the judgment forfeiting the bail bonds and affirming the municipal court action. Appellant’s motions in each case, were overruled, and this appeal followed.

For reversal appellant contends the judgments of the circuit court forfeiting bail bonds and affirming the municipal court convictions denied him substantive and procedural due process of law because of insufficient notice. The only notice appellant had that his appeals were to be considered by the circuit court was a multi-page calendar which listed his appeals among 203 criminal non-jury matters and stated, “The cases appearing on this docket are listed for plea, arraignment, and pre-trial only.”

Appellee contends appellant had an affirmative duty to be present at the October 6, 1975 hearing and also to request a setting for trial. In support of its position the State cites Ark. Stat. Ann. § 44-507 (Repl. 1964), which provides:

If the appellant shall fail to appear in the circuit court when the case is set for trial, . . . , then the circuit court may, unless good cause be shown to the contrary, affirm the judgment of the [lower] court and enter judgment against the appellant .... (Italics supplied.)

Appellee’s position would have merit if we could find that the 14-page calendar constituted a setting of the cases for trial; however, the calendar stated “pre-trial only. ” Although circuit court always remains open [Ark. Stat. Ann. § 22-312 (Repl. 1962)] we do not deem the notice given here sufficient to comport with the requirements of Ark. Stat. Ann. § 22-311 (Repl. 1962) nor with federal requirements of due process.

The Supreme Court of the United States said in Goss v. Lopez, 419 U.S. 565, 95 S. Ct. 729, 42 L. Ed. 2d 725 (1975):

There are certain bench marks to guide us, however. Mullane v. Central Hanover Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950), a case often invoked by later opinions, said that “[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” * * * (Italics supplied.)

Appellant received no proper notice that his appeals would be heard on the merits on October 6, 1975. Failure to give such notice is failure to meet the minimum requirement of due process.

Reversed and remanded for appropriate proceedings in circuit court.

We agree. Harris, C.J., and Fogleman and Hickman, JJ-