text:
    Billy Joe ROBINSON v. STATE of Arkansas
    CR 73-135
    503 S.W. 2d 883
    Opinion delivered January 21, 1974

      Harold L. Hall, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Jr., Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Billy Joe Robinson was convicted at a jury trial for selling cocaine and sentenced to 20 years in the penitentiary. Detective Bob Anderson purchased the cocaine from Robinson and his testimony at the trial resulted in Robinson’s conviction. On appeal to this court Robinson contends as follows:

“The court erred in ruling that the officer could testify that he made purchases on prior visits to defendant’s home before defendant completed his examination of the officer.”

We find no merit to this contention on the record now before us.

The felony information charged Robinson with the crime of violating the Arkansas Uniform Controlled Substances Act by unlawfully delivering a controlled substance to wit: Cocaine, against the peace and dignity of the State of Arkansas. Robinson entered a plea of not guilty. Bob Anderson, a detective in the narcotics division of the Little Rock Police Department, testified on direct examination that on January 18, 1973, he went to the appellant’s apartment and there purchased a quantity of substance he believed to be cocaine from Billy Joe Robinson. He said he had been to the same address before, but that on January 18, he arrived at the address at approximately 8:15 p.m., knocked on the door and was admitted by Robinson. He said another male individual, whom he did not know, was in the apartment with Robinson at that time. He said he asked Robinson if he had any cocaine to sell and that Robinson answered in the affirmative and inquired as to how much he wanted. He said he told Robinson he wanted a $50 spoon of cocaine, whereupon, Robinson left the living room but returned within a few minutes and handed him the substance wrapped in aluminum foil. He said he stepped into the kitchen and examined the substance under a better light and that the substance appeared to be cocaine. He said he paid Robinson $50 for the substance and left the apartment. He said he drove directly to the narcotics division of the police department and that the substance he purchased was positively identified as cocaine.

On cross-examination Detective Anderson testified that he first met Robinson in the latter part of 1972 at Robinson’s apartment. The defense attorney then inquired as to whether anyone accompanied the officer when he first went to Robinson’s apartment and met him. The state’s attorney objected to the relevancy of the testimony as to who accompanied Detective Anderson and the record then appears as follows:

“THE COURT: What’s the purpose of this testimony, Mr. Hall?
MR. HALL: If the Court please, I want to show that he has been to see this defendant several times before at different places and it has been kept on until the date of this arrest; that he induced and entrapped him to get him some. He has been asking to get him some drugs for some period of time.
THE COURT: All right, go ahead.”

And, at this point, the state’s attorney requested an in-chambers hearing which was granted.

At the in-chambers hearing the state’s attorney stated that the state took the position there was no issue of entrapment involved in the case, but that the defendant was raising the issue of entrapment making an in-chambers hearing necessary to “determine whether or not to proceed in that area and it is up to the Court to determine whether a prima facie case of entrapment is established before it goes to the jury.”

The trial judge inquired as to what was going to be the problem with the testimony and pointed out that the witness had only been asked when he had previously gone to the residence of the defendant. The state’s attorney pointed out to the court that the defendant had subpoenaed a witness under the alias name “G. Blue”; that the defense attorney had raised the issue of entrapment and he anticipated the defense witness, G. Blue, would testify he introduced Officer Anderson to Robinson several months prior to January 18, in an effort to trap Robinson into selling or delivering cocaine. The state’s attorney argued in chambers, that from the preliminary questions directed to Officer Anderson on cross-examination, the defense was laying a foundation for the introduction of G. Blue’s testimony bearing on entrapment, and that the state was entided to an in-chambers hearing to determine whether or not entrapment was a valid issue. The trial court then ruled as follows:

“Well, let’s have it then. I don’t think he has raised it yet but let’s have it anyway.”

Whereupon, in chambers, Officer Anderson testified under questioning by the state’s attorney, that in December, 1972, he received information that Robinson was engaged in the business of selling and dealing in narcotics. He said that the very first time he ever went to Robinson’s apartment, G. Blue took him there, and that was the only time G. Blue ever went with him to the Robinson apartment. He said that after he was introduced to Robinson by G. Blue, that Robinson took him to a small utility room off the kitchen in the apartment where he purchased from Robinson a bag of green vegetable material which was later found by chemical analysis to be marijuana. He said he subsequently made two other purchases of marijuana from Robinson. He said that G. Blue had no other connection with the matter except to introduce him to Robinson upon his first contact. At this point the record is as follows:

“THE COURT: Well, just a minute now. What else did G. Blue have to do with your relations?
A. Not a thing.
THE COURT: If he wants to testify to that, well, then, I don’t see why he shouldn’t. If you want him to get up there and say he went in there and bought marijuana three different times from him or whatever he bought from him, well, I will let you do that, Mr. Hall.
MR. HALL: I have a right to ask him when he first went over, how many times he had been there, who was with him. I don’t have to ask him if he bought anything. I asked him how many times he had been there.
THE COURT: Well, now, if you’re going to try to show entrapment, that he went over there to persuade this man to, to sell, then you’re going to have to, you’re going, he’s entitled to state the—
MR. MUNSON: (Interposing) That’s right.
THE COURT: What happened after he got there.
MR. MUNSON: That’s exactly right.
THE COURT: If that’s what you’re going to do. Now, you are not going to do that, it’s ridiculous.
MR. HALL: May I ask the officer a few questions, please?
THE COURT: Go ahead.”

The defense attorney then took Officer Anderson on cross-examination in chambers and Officer Anderson testified he had been to Robinson’s apartment over a half dozen times; that he met Robinson through G. Blue; that when he purchased the cocaine from Robinson, there was one other man present whom he did not know. He described the height, dress and complexion of the other man who was in the apartment but said he was not introduced to him and did not know his name. He said he had seen the defendant at various times on the street as well as in the apartment. At the close of the in-chambers hearing, following the examination of the witness by the defense counsel, the record is as follows:

“THE COURT: Do you have any questions?
MR. MUNSON: No, Your Honor.
THE COURT: Well, so you won’t be surprised, you can ask him any questions you want to. You can do just as much of that as you want.”

It is apparent that the above statement was directed to the state’s attorney and pertained to further questioning at the in-chambers hearing.

Following the in-chambers hearing, the defense attorney continued his questioning of Officer Anderson before the jury. The officer described the automobile he was driving on his trips to see Robinson, and described the other individual in Robinson’s apartment at the time he purchased the cocaine on January 18. He said that the unknown individual was sitting at the kitchen table playing records, and that he did not talk to him or make an inquiry of him concerning drugs. He said that following this purchase on January 18, and as a result of it, Robinson was arrested on February 18.

The state then offered other witnesses who testified as to the identification, analysis and chain of possession of the cocaine offered in evidence. At the close of the state’s case, the appellant moved for a directed verdict of acquittal on the grounds that the state had not shown the amount or weight of the cocaine alleged to have been purchased by Anderson and the motion was overruled.

Willie Charles Keese testified as a witness for the defense. He said he was in Robinson’s apartment on January 18 when Officer Anderson arrived and asked for a spoon of “coke.” He said that when the officer made this request, they (apparently referring to the three of them) were “sitting in the house.” Then, apparendy referring to himself and Robinson, he said:

“We went off in the pantry. Went off in the back pantry back in the back and got some aluminum foil and some aspirins, put them in the aluminum foil and ground them up and gave it to him.”

He said he watched the whole process and was present when Robinson gave Officer Anderson the aluminum foil containing the ground up aspirins. This witness then identified Officer Anderson as the person to whom he saw Robinson sell the ground aspirin.

On cross-examination Keese testified that he lived next door to Robinson; that he had known him for some time; that they are good friends. He said he visited with Robinson and “we rap together all the time.” He said, however, that he did not know very much about Robinson.

“All I know is that he has been a good friend of mine all the time and he, I know he never had any cocaine and he never messes with the stuff.”

He denied that he helped prepare the aspirin he said Robinson delivered to Officer Anderson.

“No, sir, I didn’t help him. I say he ground it up in this paper. I was there watching him.”

At the close of all of the evidence, Robinson’s attorney renewed his motion for directed verdict of acquittal on the ground that the state had not proved any amount that Robinson was supposed to have delivered to the officer, and the motion was again denied.

We are inclined to agree with the trial court that at the time the in-chambers hearing was requested by the state’s attorney and granted by the court, the defense of entrapment had not been raised at that point. We are unable to tell from the record before us what questions would have been propounded to Officer Anderson and what his answers would have been had the defense proceeded with its cross-examination of the officer without the hearing in chambers, but we are also unable to see how the appellant could have been prejudiced in connection with the in-chambers proceedings.

The appellant argues in his brief that the state was anticipating that he was going to call a witness in an effort to prove entrapement which he did not do, and that the state’s objection and request for an in-chambers hearing was premature as the defendant had not begun to develop a case of entrapment. We are inclined to agree with the appellant that the state’s objection and the court’s ruling were premature, but we are unable to follow the appellant’s reasoning in arguing that this premature objection and ruling in chambers were prejudicial to the appellant’s rights in this case. We agree with the appellant’s statement taken from 21 Am. Jur. 2d, Criminal Law, § 143:

“‘Entrapment is an affirmative' or positive defense, and one that defendant must prove.’”

But, the appellant in his brief, argues as follows:

“The appellant understands that the State may offer evidence of other offenses in order to rebut a defense of entrapment but in the case at bar, the trial court ruled on cross-examination of the first witness by the State that the State’s witness could testify that he bought marijuana on three different times from the appellant before he ever had a chance to develop a defense of entrapment. This premature ruling by the trial court was prejudicial to the appellant because if he asked certain questions of the officer, the officer could then relate to the jury other purchases of controlled substances from the appellant before the question of entrapment could properly be raised and testimony received. If the appellant failed in his effort to prove entrapment, the State would have this damaging testimony before the jury' even though the defense of entrapment was not successful and the appellant failed to take the witness stand and testify.”

As we interpret the entire proceedings in chambers, it simply amounted to the court recognizing the right of the state to elicit from Officer Anderson’s testimony that he had purchased marijuana on three occasions from the appellant in the event the appellant proceeded in developing a defense of entrapment. It would appear that the information elicited at the in-chambers hearing should have been as beneficial to the appellant as to the state and amounted to no more than a pronouncement of the law as the appellant’s attorney says he already understands it to be, “that the State may offer evidence of other offenses in order to rebut a defense of entrapment.”

We do not interpret the court’s ruling as indicating the defense attorney would lose control of the questions he could propound to the witness on cross-examination or require him to elicit from the witness other evidence not responsive to the questions he would ask. There is nothing in the record to indicate that the defendant’s attorney could not, and would not, have conducted his examination of Officer Anderson before the jury exactly as he did conduct the examination. It would appear from the record that the admissibility of evidence was not so much the question involved as was the question of procedure and timing of evidence to be offered, but which was never actually offered.

The appellant seems to recognize the rule as stated in 33 A.L.R. 2d 883, where under an annotation pertaining to entrapment to commit offense with respect to narcotics law, § 6 states:

“When entrapment is interposed as a defense, the predisposition and criminal design of defendant become relevant, and the government may introduce evidence relating to the conduct and predisposition of the defendant as it bears upon the issue of entrapment, its tendency being to show that the law enforcement officers were acting in good faith and in the belief based upon reasonable information that accused was engaged in unlawful traffic in connection with the narcotics law.”

This annotation cites the 1926 case of United States v. Siegel, 16 F. 2d 134, where the court said:

“‘That the government, prior to the question of entrapment having been raised, could not introduce any evidence of complaints having been made to the officers, but that, when the issue of entrapment was raised, then it could show what grounds of suspicion they had.’”

The appellant indicates in his argument that by the ruling of the court in chambers he was forced to abandon his planned defense of entrapment in order to prevent the jury from learning that the appellant was also engaged in the sale and distribution of marijuana. We are unable to understand how the appellant would have been able to avoid this hazard had he proceeded with a defense of entrapment, so it would appear that prior knowledge of the full measure of such hazard should have been to his advantage. Certainly the defense that the appellant did rely on was not consistent with a defense of entrapment. Of course, the law is well settled in Arkansas that in certain cases similar acts or offenses can be shown as tending to show a system, design and guilty knowledge in connection with the offense for which the defendant is being tried. Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537; Dail v. State, 255 Ark. 836, 502 S.W. 2d 456; Alford v. State, 223 Ark. 330, 266 S.W. 2d 804.

A defense of entrapment was entirely inconsistent with the defense actually relied on before the jury in this case. The defendant was being tried for selling and delivering cocaine. The defendant pleaded not guilty and the only evidence he offered was that of his neighbor and close friend, Keese, who testified that he was present at all times when the purchase was made; that he watched Robinson prepare the material he delivered to Officer Anderson; that Robinson did not deliver cocaine; that "he never had any cocaine and he never messes with the stuff.” Keese testified positively, following a reminder of the laws against perjury, that the material he saw Robinson prepare and deliver to Anderson was simply aspirin.

Where sale or delivery of controlled substances or contraband is involved, the sale or delivery of the alleged substances is ordinarily presupposed when the defense of entrapment is interposed. In Brown v. State, 248 Ark. 561, 453 S.W. 2d 50, the defense of entrapment was interposed in a marijuana case. We upheld the trial court in holding that the defense of entrapment was not available, and in that case we said:

"Appellant denied having any connection with, or knowledge of, the marijuana. In that situation he was not entitled to the defense of entrapment. The question was raised in Rodriguez v. United States, 227 F. 2d 912 (1955), and the court said:
‘Moreover, in refusing to charge the jury on entrapment, the court stated that the defense was not available where, as in this case, the defendant denies the very acts upon which the prosecution and the defense are necessarily predicated. It is true that this defense may be raised even though the defendant pleads not guilty, but it ‘assumes that the act charged was committed,’ and where the defendant insists, as she did here, that she did not commit the acts charged, one of the bases of the defense is absent. On this ground and for other reasons mentioned, the district court was not in error in refusing the appellant’s motion or requested charge on entrapment.’”

See also 61 A.L.R. 2d p. 677 and 21 Am. Jur. 2d § 144, p. 214.

It is true that the appellant himself simply pleaded not guilty and did not specifically deny that he delivered cocaine to Officer Anderson, but his only witness Mr. Keese testified that the substance actually delivered was aspirin and not cocaine. A similar situation arose in the Texas case of Stone v. State, 171 S.W. 2d 364, in which the defense of entrapment was argued on motion for rehearing and although the court found no evidence of entrapment, it stated:

“While appellant did not testify, he had witnesses who denied the sale at the time alleged and raised the issue of an alibi as his chief defense.”

See also the Missouri case of State v. Varnon, 174 S.W. 2d 146, involving the illegal sale of intoxicating liquor where the defense of entrapment was interposed. The appellant in that case contended that his instruction on entrapment should have been given and while the court found there was no evidence upon which to base such instruction, the court said:

“Appellant denied making any sale of intoxicating liquor. This is not consistent with the defense of entrapment.”

The judgment is affirmed.

Harris, C.J., not participating.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Jimmie L. WALTERS v. STATE of Arkansas
    CR 73-116
    503 S.W. 2d 895
    Opinion delivered January 21, 1974
    /. H. Cottrell and Floyd J. Lofton, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Based upon the conduct of the trial court in discharging a jury and granting a new trial, the appellant Jimmie L. Walters seeks to set aside his subsequent second degree murder conviction upon the ground of former jeopardy or at least to reduce the conviction thereof to a degree not greater than involuntary manslaughter.

The record before us as to what occurred in the first trial is rather meager. The portion upon which appellant relies is set forth in a motion to dismiss as follows:

“That at the conclusion of the first trial of this defendant, the jury retired to deliberate a verdict and during the course of said deliberation, the Jury reported to the Court that they could not reach a decision and were hung. While determining whether the jury could reach a verdict, the following conversation between the Court and the Jury Foreman occurred:
COURT: Have you reached a verdict?
FOREMAN: No sir.
COURT: What are your numbers now?
FOREMAN: 7 to 5.
COURT: Ladies and gentlemen of the jury, I know some Courts follow the procedure of locking up juries and keeping them for days and often times by doing it, they get a verdict, but this Court doesn’t believe in that. I believe that’s subjecting you to torture. That’s not what you are down here for, to be tortured. You are just citizens doing your duty. You have told me there were two things you were considering — guilt or innocence?
FOREMAN: Yes sir.
COURT: If the proposition had been voted on, what would have been the degree?
FOREMAN: About the least.
COURT: You mean you were hung up between involuntary manslaughter and not guilty?
FOREMAN: Yes sir.”

The doctrine of former jeopardy has been set forth in Atkins v. State, 16 Ark. 568, 578 (1855) in this language, quoting from the still leading case of United States v. Perez, 9 Wheat. 579, 6 L. Ed. 165 (1824):

“ ‘We think that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated. They are to exercise a sound discretion on the subject; and it is impossible to define all the circumstances which would render it proper to interfere. To be sure, the power ought to be used with the greatest caution, under urgent circumstances, and for very plain and obvious causes; and, in capital cases especially, courts should be extremely careful how they interfere with any of the chances of life in favor of the prisoner. But, after all, they have the right to order the discharge, and the security which the public have for the faithful, sound, and conscientious exercise of this discretion, rests in this, as in other cases, upon the responsibility of the judges under their oath.’ ”

We do not read anything in Gori v. United States, 367 U.S. 364, 81 S. Ct. 1523, 6 L. Ed. 2d 901 (1961), nor in United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1970), as holding to the contrary.

Because of the fact the trial court went beyond the determination that the jury was hung between guilt and innocence and determined that they were hung between a verdict of involuntary manslaughter and not guilty, appellant suggests there was a preoccupation by the trial court in helping the prosecution obtain a conviction. While we must admit that the inquiry was inadvisable, we cannot read appellant’s suggestion into this meager record. It appears to us that the trial court had already indicated that he was going to grant a mistrial before making the inquiries as to involuntary manslaughter and not guilty. On the meager record before us we cannot say that the trial court abused his discretion in determining that the jury was hopelessly deadlocked. Consequently, we need not speculate as to what our conclusion would have been had such information been first obtained or had the record shown how long the jury had been deliberating.

Neither can we agree with appellant that the first trial resulted in an implied acquittal of all degrees in excess of involuntary manslaughter. The statements between the trial court and the jury foreman cannot be considered under the circumstances as a verdict of the jury. See Ark. Stat. Ann. § 43-1226 (Repl. 1964).

Affirmed.

Harris, C.J., not participating.


text:
    Wayne R. WILLIAMS v. Otis TURNER, Circuit Judge
    CR 73-150
    503 S.W. 2d 901
    Opinion delivered January 21, 1974

      Tackett, Moore, Dowd ir Harrelson, for Petitioner.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for Respondent.
   Conley Byrd, Justice.

Petitioner, Wayne R. Williams, being charged in Miller County with the offenses of False Pretenses, Ark. Stat. Ann. § 41-1901 (Repl. 1964), and Bribery, Ark. Stat. Ann. § 41-901 (Repl. 1964), asks this Court to prohibit Respondent, Otis Turner, Judge of the Miller County Circuit Court, from proceeding with a trial upon .«hose charges in Miller County on the theory that Miller County has no jurisdiction of the offenses charged. We agree with petitioner and grant the writ.

The false pretense information as finally amended alleges:

“. . . The said defendant on or about the 10th day of September in Clark County, Arkansas did unlawfully and feloniously with the intent to defraud and cheat B. F. Wheat, Jr., of the sum of $5,000.00, $4,-000.00 of which is to be paid in Miller County, Arkansas, by falsely, fraudulently and designedly stating to the said B. F. Wheat, Jr., that for said sum, to be paid to certain influential individuals, the son of B. F. Wheat, Jr., Frank S. Wheat, would receive a certain sentence in the felony case then pending against him in Clark County, Arkansas, and would be ‘free of prison’; Wayne R. Williams further stated to B. F. Wheat, Jr., that a probated or suspended sentence ‘has been arranged with the judge’ indicating that the Circuit Judge in Miller County, Arkansas, was to receive part of the payment, which statements were false and were known at that time by Wayne R. Williams to be false and the false representations and pretense were relied upon and believed by the said B. F. Wheat, Jr., in violation of Ark. Stats. 41-1901.”

The bribery information as finally amended charged petitioner with the crime of bribery committed as follows:

‘‘The said defendant on or about the 10th day of September, 1973, in Clark County, Arkansas, did willfully, unlawfully and feloniously directly pay and promise to pay a bribe of money in Clark and Miller Counties, Arkansas, to an officer of the State of Arkansas, a person holding a place of trust under the laws of the State of Arkansas, with the intent to influence the actions, decisions and recommendations of said officer in the prosecution of Frank S. Wheat, a defendant in a criminal case then pending in the Circuit Court of Clark County, Arkansas, in violation of Ark. Stats. 41-901.”

Our Constitution Art. 2, § 10 guarantees an accused a “public trial by an impartial jury of the county in which the crime shall have been committed.” This court, immediately after the adoption of the Constitution of 1874, recognized that this provision of the Bill of Rights was jurisdictional and held that the legislature could not direct or permit a trial in the county other than where the offense was committed.

Respondent recognizes the jurisdictional limitations but argues here that the information allege the crimes were committed in two counties. In doing so Respondent contends that the the jursidiction is controlled by Ark. Stat. Ann. § 43-1414 (Repl. 1964), and Ark. Stat. Ann. § 43-1426 (Repl. 1964) together with the interpretation that we gave to them in Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972). Arkansas Statutes § 43-1414 provides:

“Where the offense is committed partly in one county and partly in another, or the acts or the effects thereof, requisite to the consumation of the offense, occur in two (2) or more counties, the jurisdiction is in either.”

Arkansas Statutes § 43-1426 provides:

“It shall be presumed upon trial that the offense charged in the indictment was committed within the jurisdiction of the court, and the court may pronounce the proper judgment accordingly, unless the evidence affirmatively shows otherwise.”

In Hill v. State, 253 Ark. 512, 487 S.W. 2d 624 (1972), we had before us a charge of disposal of mortgaged property, Ark. Stat. Ann. § 41-1928 (Repl. 1964). In upholding the venue in that case we pointed out that the effects of the acts of the parties outside of Howard County was to dispose of the mortgaged property in Howard County. In other words there would have been no offense committed had the acts of the accused not resulted in the transfer of the mortgaged property in Howard County. Under the crimes here charged against petitioner the offenses were committed at the time of the occurrences alleged to have taken place in Clark County and were complete at that time.

Furthermore, as can be seen from the language of Ark. Stat. Ann. § 43-1426 (Repl. 1964), the presumption of venue only applies where the record does not affirmatively appear otherwise. In this case the informa-tions affirmatively allege that the events giving rise to the offenses occurred in Clark County instead of Miller County. If the State had wanted to contend otherwise, it should have either amended the informations to allege that offenses were committed in Miller County or filed a bill of particulars, as was suggested in Meador v. State, 201 Ark. 1083, 148 S.W. 2d 653 (1941), to show that it was alleging an offense in Miller County and not in Clark County.

Finally, Respondent contends that the bribery information alleges a payment of a bribe in Miller County. We do not so read the information. As we read the information it charges that whatever petitioner did occurred in Clark County. Had it been the State’s intent to charge petitioner with the payment of a bribe in Miller County, it would have been simple to have so stated without any mention of an allegation that he did pay a bribe in Clark County. — Of course nothing herein said will prevent the State from so proceeding against petitioner in Miller County upon a proper allegation.

Having shown that the informations filed against petitioner charged offenses that were allegedly committed only in Clark County, it follows that the Miller County Circuit Court was without jurisdiction.

Petitioner here for the first time challenges the sufficiency ol the false pretense charge, because it does not allege that any payment was made by any person to any other person, but we do not reach the question. The record does not show that the sufficiency of the charge was presented to the trial court.

Writ granted.


author: Frank Holt, Justice.

text:
    Reather WATSON v. Phil ALFORD, Administrator of the Estate of Nelson YOUNG, Deceased, et al
    73-178
    503 S.W. 2d 897
    Opinion delivered January 21, 1974

      Harkness, Friedman ir Kusin, by: Donald B. Friedman, for appellant.

      Young ér Patton, by: Nicholas H. Patton, for appel-lees.
   Frank Holt, Justice.

Appellant sought to set aside a conveyance of land by her deceased husband, Emanuel Watson, and herself to appellees, Stewart Landes and his wife, Gloria Landes. The chancellor dismissed appellant’s third party complaint and refused to set aside the conveyance. For reversal of that decree, appellant contends that the conveyance should be cancelled inasmuch as Emanuel was not competent to know the nature of the transaction in which he participated. Appellant bases this contention on Emanuel’s advanced age, 100 years old at the time he signed the deed, and inadequate consideration received for the land. We think the appellant is correct.

The appellee administrator brought suit to foreclose a mortgage in the sum of $1,000.55 bearing 10% interest per annum, together with a 10% attorney’s fee. The mortgage was executed in 1966 on property then owned by Charles Watson, Emanuel’s son by a former marriage. A few months later Charles died intestate and Emanuel, being the sole heir, inherited the encumbered property. At that time Emanuel was 100 years of age. He died four years later. Reather instituted her third party complaint in the pending foreclosure proceeding. As indicated, she contends that her aged husband was not competent to transact the sale of their land which was attended by inadequate consideration.

In the oft cited case of Kelly’s Heirs v. McGuire, 15 Ark. 555 (1855), the court announced that if one is “of such great weakness of mind, as to be unable to guard himself against imposition, or to resist importunity or undue influence, a contract, made by him under such circumstances, will be set aside. And it is not material from what cause such weakness arises. It may be from temporary illness, general mental imbecility, .... the infirmity of extreme old age.” The fact that a grantor is old and in feeble health is a circumstance bearing on the question of mental capacity as is gross inadequacy of price. Campbell v. Lux, 146 Ark. 397, 225 S.W. 653 (1920), McEvoy v. Tucker, 115 Ark. 430, 171 S.W. 888 (1914). Of course, we will not set aside contracts for mere inadequacy of price. Hawkins v. Randolph, 149 Ark. 124, 231 S.W. 556 (1921). The grantor’s disability must render him incapable of “intelligently comprehending and acting upon the business affairs out of which the conveyance grew, and to prevent him from understanding the nature and consequences of his act.” McEvoy v. Tucker, supra. Each case dealing with mental capacity must be decided on its own peculiar facts and circumstances. Hawkins v. Randolph, supra.

Our cases appear in conflict as to the evidentiary standard which is required to establish mental incapacity in the making of a deed. One line of cases holds that only a clear preponderance of the evidence is the required standard of proof. Campbell v. Lux, supra, and McEvoy v. Tucker, supra. However, other cases apply the usual quantum of proof which is required to set aside and cancel a deed: i.e., clear, cogent and convincing evidence. Whatley and Wright v. Corbin, 252 Ark. 561, 480 S.W. 2d 142 (1972), and Braswell v. Brandon, 208 Ark. 174, 185 S.W. 2d 271 (1945). Braswell was relied upon in Whatley and Wright as precedent for the clear, cogent and convincing standard with respect to mental capacity. However, neither Campbell nor McEvoy, the earlier cases, were recognized in Braswell which enunciated the stricter evi-dentiary requirement by citing Stephens v. Keener, 199 Ark. 1051, 137 S.W. 2d 253 (1940). Significantly, Stephens did not deal with mental incapacity as grounds for setting aside a deed. There, mistake and inadequate consideration were the issues.

We take this occasion to resolve the inconsistency in favor of the less strict quantum of proof which requires only a preponderance of the evidence as pronounced by our earlier cases. The rationale is that we can perceive no basis to establish a different standard of proof involving the mental capacity to make a deed from our rule with respect to the mental capacity to make a will. Both are solemn written instruments. We have long recognized the preponderance test as being our guideline in weighing the evidence of testamentary capacity. Short v. Stephenson, 238 Ark. 1048, 386 S.W. 2d 501 (1965). Applying this standard we now review the evidence in the case at bar.

There is little doubt that Emanuel had grown feeble and incapacitated in his old age. About ten years preceding this questioned conveyance, he had suffered a stroke and since that time was unable to work. Readier testified that his stroke impaired his mind and severely limited his ability to function physically and mentally. She was instructed by his doctors not to do anything to disturb or aggravate him. In June, 1966, Landes, the purchaser, came to their house and, after she dressed her husband, he accompanied Landes to view the property. The next day, Landes returned with the necessary legal papers for the conveyance which Emanuel signed. Readier signed the papers only after Emanuel became agitated at her reluctance. The next morning Emanuel inquired if she had seen the word "Deed” on the papers. When she confirmed that she had, Emanuel gave her the $200 check Landes had given him and directed her to take the check to Landes and demand a return of the papers they had signed. Landes refused to do this, stating he would only give them to Emanuel. Two weeks lapsed before Emanuel was physically able to go to Landes’ office. At that time, Emanuel was told that the land had been sold. He left Landes’ office crying.

Other witnesses corroborated Reather’s testimony that due to Emanuel’s stroke and age, he was unable to look after his business affairs. A lifetime acquaintance testified that due to Emanuel’s stroke and age, he was unable to conduct business affairs and that she, as a frequent visitor, assisted in getting Emanuel in and out of his bed. Further, following his stroke, “[H]is mind would come and go and sometimes you knew what he was talking about and sometimes you didn’t.” When Emanuel learned his property would not be returned, he went to a local attorney’s office and left the $200 check with him. This attorney had practiced law in the locality since 1922 and it appears that he was well acquainted with Emanuel since this time. He testified that Emanuel came to his office frequently before his stroke which was about ten years before the conveyance in question; that since then "he had failed very fast;” that "[Y]ou had a hard time explaining anything to him and he had a hard time understanding anything you tried to tell him;” that at the time the deed was made to Landes, Emanuel had only been released from the hospital a few days; that each time he went to the hospital "he was expected to die;” and “he couldn’t remember where he ended up and he didn’t understand quite why he made the deed and actually he didn’t know why.” At that time about $1,000 was owed on the mortgage of the 67.5 acres. The mortgage was not due for another two years. This attorney testified that he was familiar with the property and described it as “good up hill land.” “It was in pasture and in some timber also.” Since he had bought and sold land in this locality, he estimated that Emanuel’s land had a value of $100 per acre or $6,750. The attorney believed that Emanuel was not competent at the time of executing the deed and should have had a guardian because “[H]is mind was confused and he couldn’t comprehend anything.”

The appellees adduced evidence from one witness that he had known Emanuel since 1942 and had visited with him on many occasions during which he had made tape recordings for the local county historical society. Some of these occurred about the time of the conveyance in question. It was his opinion that Emanuel had a clear and lucid mind and he was “amazed at his clear recollection and clear consistency when he repeated things.”

The Landes attorney testified that Emanuel came to his office in June, 1966, which was a few months after he had inherited the property from his son; that he wanted to deed the land to the mortgagor who held the $1,000 mortgage; that he advised him to try to sell the land for more than the mortgage; that he called Landes who was advised that the land was worth more than the mortgage and suggested he contact Emanuel. Two days later Emanuel and Readier conveyed the property to Landes for $200 plus assumption of the mortgage. It appears that Emanuel was worried that he could not raise the money to pay off this mortgage. Landes testified that he viewed the property and learned that in addition to the $1,000 mortgage there was a lifetime lease on the land held by Nelson Young, a friend of Emanuel’s, and after Nelson’s death, Nelson’s wife would have possession of the land until her demise. Both were in their sixties. The lifetime lease provided that timber could be removed from the land along with fences and buildings. He testified that it was decided that the property was not worth anything in view of the mortgage and the lease; however, $400 would be paid. It is undisputed that only $200 was ever paid. He further testified that since the conveyance he understood that Nelson Young and his wife were both deceased.

Landes was unaware that at the time Emanuel signed the deed he was recently released from the hospital. However, he was aware that Emanuel was feeble and had suffered a stroke. Landes believed that Emanuel sold him the property because of the mortgage and did not learn until he bought the land that the $1,000 mortgage was not due for two years. Emanuel’s actions and behavior did not cause him to believe that he was unable to comprehend the validity of the conveyance.

In summary, Emanuel was 100 years old at the time of the conveyance of the deed; he had suffered a stroke a few years previously affecting him mentally and physically; the day following the conveyance he attempted to rectify it; he had to have constant care and attention as to his physical condition and was released from the hospital only a few days previously; only a $1,000 mortgage existed on the 67.5 acres at the time of the conveyance; the mortgage was not due for another two years; only $200 was paid by the purchaser, although he stated it was “decided” $400 would be a fair payment; the lifetime lease was being held by a couple in their sixties who were dead at the time of this action in 1970; the only witness who testified as to familiarity with the property and who had bought and sold property in the locality placed a value of $100 per acre or $6,750 upon the land. We hold that the evidence required to cancel this conveyance was met by the appellant and clearly preponderates in her favor. McEvoy v. Tucker, supra, and Campbell v. Lux, supra. Furthermore, in the case at bar, even if we apply the stricter requirement of clear, cogent and convincing evidence, we hold that the appellant has also met that burden of proof.

Again we must take this occasion to reiterate, in the circumstances, our disapproval of an attorney testifying in an action in which he is an advocate. See Montgomery v. 1st Nat’l. Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299 (1969), Old American Life Ins. Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23 (1968), and Rushton v. First Nat’l. Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378 (1968).

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

Reversed and remanded.

Harris, C.J., not participating.


text:
    Tommy FERGUSON v. STATE of Arkansas
    CR 73-138
    503 S.W. 907
    Opinion delivered January 21, 1974

      Donald Poe, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of the delivery of marijuana in violation of Act 590 of 1971 as amended (Ark. Stat. Ann. § 82-2617 [Repl. I960]). A two year sentence was assessed in the Department of Corrections. Appellant contends for reversal of the judgment that the purchaser and other youths instrumental in the purchase of the marijuana from appellant are accomplices and, therefore, their testimony, must be corroborated.

Appellant is correct in asserting that “a conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense.” Ark. Stat. Ann. § 43-2116 (Repl. 1964), Moore v. State, 251 Ark. 436, 472 S.W. 2d 940 (1971).

In the case at bar, however, appellant’s contention for reversal was determined adversely in the recent case of Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913 (1971). There we refused to classify the purchaser in an LSD sale as an accomplice of the seller. We said:

It is uniformly held that one who buys narcotics, intoxicating liquor, or other contraband is not an accomplice in the sale of the article, for obviously he is not selling to himself. **** [t]o be an accomplice one ‘must stand in the same relation to the crime as the person charged therewith and must approach it from the same direction.’ A buyer and a seller certainly approach the transaction from opposite poles. *###
The reason for holding that the purchaser is not the accomplice of the seller is that the purchaser, if guilty of any crime, is guilty of a crime distinct from that for which the seller is being prosecuted.

In the instant case neither the purchaser of the marijuana nor the other witnesses delivered the controlled substance. Therefore, neither could be charged with that offense. Their participation would be a separate and distinct offense, if any. Consequently, the court correctly refused to give an instruction relating to the requirement that the testimony of an accomplice or accomplices must be corroborated. An instruction must be germane to the issue.

Affirmed.

Harris, C.J., not participating.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    TRANSPORT COMPANY v. ARKANSAS TRANSPORTATION COMMISSION et al
    73-129
    504 S.W. 2d 366
    Opinion delivered January 28, 1974

      Harper, Young ¿r Smith, for appellant.

      Louis Tarlowski, for appellees.
   George Rose Smith, Justice.

The appellant, Transport Company, and its wholly owned subsidiary, Southern Transport, Inc., are motor carriers transporting petroleum products in intrastate commerce in Arkansas. Prior to the present proceedings the parent company was an authorized common carrier, but its certificate of authority limited it to the transportation of commodities along specified highways, most of which radiated from Little Rock to other parts of the state without connecting with one another at the far ends. The subsidiary company was a contract carrier engaged primarily in transporting asphalt (a petroleum product) along a different set of highways.

In this case Transport, the parent company, applied to the Arkansas Transportation Commission, a nominal appellee here, for the removal of certain restrictions in Transport’s certificate, so that it could operate over any and all highways to and from all points within the state. The applicant contemplated that its subsidiary company would be dissolved if the Commission granted the application, thereby enabling Transport to perform as a common carrier the services that the subsidiary had been performing as a contract carrier.

Transport’s application was protested by two competing carriers, Arkansas Transport Company and Earl Gibbon Transport. After a hearing at which much testimony and many exhibits were introduced, the Commission granted Transport’s 'application. Arkansas Transport appealed to the Pulaski Circuit Court, where the Commission’s order was set aside as being against the weight of the evidence. Transport brings the case to us, with Arkansas Transport as the real appellee.

At the outset Arkansas Transport renews its insistence that all proof pertaining to the subsidiary company’s operations be disregarded, because that corporation was not a party to Transport’s application. The Commission was right in rejecting that contention. The Commission is not bound by technical rules of pleading and evidence, its mission being to ascertain the facts bearing upon the right and justice of the matters before it. Ark. Stat. Ann. § 73-127 (Repl. 1957). At the hearing the subsidiary’s authorized representative announced that the subsidiary joined in Transport’s application and that upon the granting of that application the subsidiary would surrender its permits to the Commission and merge assets through an appropriate plan approved by the Internal Revenue Service. Arkansas Transport did not plead surprise or ask for a continuance, doubtless because substantially all the applicant’s proof had been disclosed in exhibits filed before the hearing. Thus the objection is purely a technical one, having no bearing upon the merits of the controversy.

We are firmly of the opinion that the Commission was fully justified by the weight of the evidence in granting Transport’s application. It must be kept in mind that only a few years ago the appellee Arkansas Transport obtained for itself the same broad authority to operate over irregular routes throughout the state that the appellant is now seeking. See Wheeling Pipe Line v. Arkansas Commerce Commn., 249 Ark. 685, 460 S.W. 2d 784 (1970), where Arkansas Transport prevailed. In the case at bar the Commission went to the heart of the matter in these two sentences in its report and order: “The carrier that is limited to a regular route operation cannot compete cost-wise with the carrier authorized to transport the same commodities between the same points over a shorter irregular route at the same level of rates required by law to prevent undue preferences or advantages and unfair or destructive competitive practices. The carrier that is restricted to regular routes involving greater distances is subjected to unfair competitive advantage resulting, in effect, in wasted • transportation and robbing him of the right to compete for traffic between the same points on the same class of traffic.”

Illustrations taken from the facts in the record will demonstrate the wisdom of the Commission’s position. Transport, when it filed its present petition, was authorized to pick up petroleum products at a distribution station in West Memphis, for example, and deliver them to customers in Marianna, only 48 miles away by the most direct route. But Transport was not authorized to travel that particular highway. To render that service it would have to travel west from West Memphis to Little Rock along one highway and then east to Marianna along another highway, the total distance exceeding 200 miles. It would have to travel even farther, by way of Little Rock, to make a delivery from West Memphis to Earle, although both those cities are in Crittenden county, about 25 miles apart. There is no limit to the number of similar instances that resulted from Transport’s being restricted to the use of certain specified highways radiating from Little Rock.

The Commission was undeniably right in stressing the "wasted transportation” that would have continued had the application been denied. When the Commission announced its decision the threat of a national energy shortage was not as well publicized as it is today, but now the threat is a matter of such common knowledge that we cannot ignore it. Neither in its brief nor in its oral argument has the appellee suggested any sound basis for the wasteful practices that were relieved by the Commission’s order. It may well be that those practices were justified in past years, when the public rules and regulations were being developed, but the situation that exists today obviously demands a re-examination of principles that were formerly regarded as controlling.

In fairness to the appellee and the circuit court we should add that even without reference to the energy shortage we do not find the Commission’s decision to be contrary to the weight of the evidence. The energy situation, however, makes it unnecessary for us to discuss at length the persuasive proof showing that the additional service proposed by the applicant will benefit the general public (Santee v. Brady, 209 Ark. 224, 189 S.W. 2d 907 [1945]) by providing a more flexible service at less cost than has been the case heretofore. Neither need we dwell in detail upon other proof that was before the Commission, such as the fact that Arkansas Transport was not itself engaged in the transportation of asphalt and the fact that at the time of the hearing Arkansas Transport had not established a terminal at Fort Smith, even though it had promised to do so four years earlier in the proceeding that reached us in the Wheeling case, supra. It is enough for us to say that we do not find the Commission’s decision to be against the preponderance of the proof.

Reversed.

Harris, C.J., not participating.

Fogleman and Byrd, JJ., concur.

John A. Fogleman, Justice,

concurring. I concur because I think the evidence preponderated in appellant’s favor, without giving any consideration to the “energy shortage” about which there is increasing debate. That matter could not have been an issue before the commission or the trial court, and our function is to review that record and the evidence and issues there presented.


author: George Rose Smith, Justice.

text:
    FALDON INDUSTRIAL WIRING Company, Inc. et al v. Darien DOWNS
    73-187
    504 S.W. 2d 346
    Opinion delivered January 28, 1974

      Daily, West, Core ir Coffman, for appellants.

      Sam Sexton Jr., by: James H. Broyles Jr., for appel-lee.
   George Rose Smith, Justice.

This is a workmen’s compensation case arising from a back injury which the appellee suffered in the course of his employment. According to the medical testimony, the injury resulted in permanent partial disability of 15% as apportioned to the body as a whole. The referee and the commission increased the award to 25%, which was upheld by the circuit court. For reversal the insurance carrier contends, first, that it should not have been charged with a fee for the claimant’s attorney upon the first 15% of disability, because that part of the claim was not controverted (Ark. Stat. Ann. § 81-1332 [Repl. I960]), and secondly, that there is no substantial evidence to support a finding of disability in excess of 15%. We agree with the carrier’s first contention but not with the second.

Downs sustained his back injury in June, 1971, while carrying a heavy electric motor in the appellant Fal-dón’s shop. Surgery was necessary. Dr. Lockhart, of the Holt-Krock Clinic, performed a laminectomy, removing an intervertebral disc. On September 27 Dr. Lockhart found that Downs was able to resume light work. The doctor, making no evaluation of permanent partial disability, instructed the patient to return for an evaluation after he had been at work for 30 days. Downs obtained light employment on October 8, but he did not return to the clinic as he had been told to do. The insurance carrier terminated its payments for total temporary disability on October 20, presumably because Downs had gone back to work. On December 8 the clinic sent a final report to the insurer, stating that the extent of permanent disability had not been assessed, because the patient did not return after October 8.

Downs, apparently without communicating either with Faldón or with the insurance carrier about a possible claim, employed an attorney, Robert Law. Law discussed the matter with the insurer or its adjuster. On January 3, 1972, Law wrote to his client, the claimant, saying in part:

In checking into your case further, I find that apparently Dr. Lockhart when he examined you the last time either failed to make a note of your permanent-partial disability or else he wants to see you again for that purpose.
At the request of the insurance company, we have made another appointment for you to see Dr. Lock-hart in his office on January 20 at 9:30 a.m. At that time I think Dr. Lockhart will, perhaps, give us a permanent-partial disability rating in order that we might enter into a settlement talk with the insurance company.

Downs was examined by Dr. Lockhart on February 3. On February 22 the doctor notified the insurance carrier that he had examined Downs and that “a permanent partial disability of the body as a whole of 15% is suggested.” Within less than a week the insurer accepted that evaluation by forwarding its check for the amount then due and explaining that the rest of the compensation would be paid in installments every two weeks for 48Vz weeks. Mr. Law disagreed with the 15% assessment of permanent partial disability and requested a hearing, which resulted in the 25% award now before us.

We find no substantial basis for the commission’s finding that the insurance carrier controverted the 15% disability claim. The Statute provides than an employer desiring to controvert a claim shall file with the commission a statement of the grounds on which the claim is controverted. Ark. Stat. Ann. § 81-1319 (d). There is no contention in the case at bar that either the employer or the carrier ever filed any such statement or made any other written or oral denial of liability.

The referee, whose finding upon this point was affirmed by the commission without comment, concluded that the carrier had controverted the claim because it made no effort to determine the claimant’s disability after payments were stopped on October 20. The referee reasoned that “the fact that Dr. Lockhart had performed a hemalami-nectomy and removed an intervertebral disc . . . would certainly put the respondents on notice that the claimant would receive some permanent disability.” The referee observed that it was the claimant’s attorney who made the appointment with Dr. Lockhart for an evaluation of permanent partial disability.

Accepting all the facts referred to by the referee, it does not follow that the carrier controverted the claim. A claim must exist before it can be controverted. On October 20 Downs had been paid in full for his total temporary disability and had obtained work. He had been instructed to return to the Holt-Krock Clinic after 30 days for an evaluation, but he failed to do so. It was he who was in default, not the insurer. When that default was finally remedied, by the February report made by Dr. Lockhart, the carrier accepted the doctor’s evaluation and at once paid the amount due. No importance can be attached to the fact that Mr. Law made the appointment with Dr. Lockhart, because Law stated in his letter to his client that he was acting at the request of the insurer.

The only remáining basis for the referee’s finding is his statement that the performance of a “hemalaminec-tomy” and the removal of a disc should have put the carrier on notice that the claimant would receive some permanent disability. Although Dr. Lockhart testified that “the type of injury” was such that he would have assumed that the patient would have permanent partial disability, there is nothing to indicate that the insurance company should have known that fact. At the least a medical question was involved, which was plainly not such a matter of common knowledge as to be the subject of judicial notice. See Larson, Workmen’s Compensation Law, § 79.54 (1971). Moreover, the claimant had completed his healing period, had gone back to work, and had disregarded Dr. Lockhart’s request that he return after 30 days for an evaluation. Upon the record it cannot be said that the insurer’s inaction amounted to a denial of liability.

There is, however, substantial proof to support the finding of a 25% disability. The commission, under the rule of Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685 (1961), was not limited to the medical testimony in determining the extent of disability. At the time of the hearing Downs was earning $3.00 an hour. His present employer testified in substance that if Downs had not been partially disabled he would be earning from $3.60 to $4.00 an hour. That testimony, as well as other proof in the record, amply supports the award.

Affirmed in part, reversed in part.

Harris, C.J., not participating.


author: Lyle Brown, Justice.

text:
    Pauline WOODS (PARRISH) v. James E. BARBER as Administrator of the Estate of S. W. WOODS, Deceased
    73-189
    504 S.W. 2d 355
    Opinion delivered January 28, 1974

      Lee Ward, for appellant.

      Frierson, Walker, Snellgrove & Laser, by: G. D. Walker, for appellee.
   Lyle Brown, Justice.

Appellant is the widow of S. W. Woods, who died intestate. Appellee is the duly qualified administrator of the estate of the deceased. The administrator filed his petition for final distribution and discharge. Among the listed disbursements was the payment of $7569.57 to the Mercantile Bank of Jonesboro. The widow filed an objection to the payment on the ground that no claim had been filed thereon, nor was any effort to foreclose any lien filed. The widow asked that the administrator be required to reimburse the estate in the amount of the payment to the bank. A hearing was conducted thereon and the probate court approved the payment “as payment of a proper debt against the estate to the bank secured by a lien on crops and equipment”. On appeal it is contended that the debt should not have been paid in the absence of the filing of a claim or any effort to foreclose the lien held by the bank. It should be noted that the bank is not a party to this case.

The record shows that the administrator was authorized to continue the decedent’s farming operation. In connection therewith he borrowed from the bank under a security agreement, and with the approval of the probate court, an additional sum of $6480 (in addition to what Woods owed at the time of his death) to continue the farming business. Of course in the sale of the crops the bank’s security interest became liquidated. The only thing left for the bank to do under those circumstances was to apply the proceeds, so far as necessary, to the satisfaction of its security interest and to release the balance thereof to the personal representative pursuant to Ark. Stat. Ann. § 62-2609 (b) (Repl. 1967). Under the circumstances the filing of a claim by the bank or any other legal proceeding was unnecessary.

While the witnesses spoke of payment of the debt, the practical effect was the same as if the bank had liquidated the security interest pursuant to § 62-2609 (b) and turned over the excess of the proceeds to the personal representative. Consequently the trial court correctly absolved the administrator of any liability.

Affirmed.

Harris, C.J., not participating.


text:
    Carl HEAD v. STATE of Arkansas
    CR 73-130
    504 S.W. 2d 342
    Opinion delivered January 28, 1974

      William C. McArthur, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was convicted of possession of marijuana with intent to deliver and sentenced to ten years imprisonment. He asserts three points as reversible error: (1) that the search warrant and the fruits of the search should have been suppressed; (2) that the contraband was improperly identified and its integrity not maintained; and (3) that the State should not have been allowed to reopen its case after resting.

Point I. We think the search warrant met the test of probable cause as set out in Bailey v. State, 246 Ark. 362, 438 S.W. 2d 321 (1969). The affidavit for a search warrant was made by Sgt. Robert B. Jones of the Little Rock Police Department. He swore there were reasonable grounds to believe that marijuana was being possessed and offered for sale at 9211 Adkins Street, Apt. 7, Little Rock; that he received his information from a confidential informant whose statement was based on personal observation; that the informant was considered reliable; and that in the preceding three months the informer had given similar information on other suspects and his information formed the basis of felony charges being filed in such other cases. (The informer was Tom Johnston, a Little Rock city detective with five years experience.)

During the course of the trial it developed that at the precise tíme the informer called Sgt. Jones, the contraband was not actually inside Apartment 7; it was in the trunk of the informer’s car. The recited discrepancy forms the basis of appellant’s main attack on the invalidity of the search warrant. The testimony revealed that the informer, the appellant and others, drove by prearrangement to Apartment 7, and from that address it was understood the informer was to make a telephone call to his “money man”. (Actually, the call was going to be made to Sgt. Jones.) Officer Johnston, the informer, testified he parked his car so that he could observe it through the apartment window and the contraband was in fact within his sight at the time the call was made; and that immediately after completing the call the parties brought the marijuana inside the apartment. We think it was sufficient that the parties had agreed to bring the contraband into the apartment — it was at all times within the view of the informer, and that it was brought into the apartment within minutes after the call. Shortly after the informer’s call the police arrived at Apartment 7 and found the drugs as represented by . the informer.

Point II. Under this point appellant alleges that the contraband was: (a) improperly identified, (b) its integrity was not maintained, and (c) it was improperly displayed to and inspected by the jurors. Sgt. Jones testified he removed the original wrappers from the bricks and rewrapped the material in clear plastic bags and attached numbered tags. We think the fact that the officers found it necessary for identification purposes to transfer the material to clear plastic bags was not improper or prejudicial.

Appellant argues that the integrity of the material was not maintained in that the State chemist analyzed some bricks that did not have a tag on them. We perceive no prejudice. The chemist received the 98 bricks confiscated. The trunk and the box in which the material was delivered were appropriately tagged. In addition, all the bricks examined, except one, had individual tags. When Officer Royster delivered the material the chemist placed it in a vault. The chemist, along with two officers, brought the material to court.

The entire collection of material was brought into the courtroom prior to the trial and appellant’s counsel noted that prospective jurors had viewed the material and that one or more jurors picked up some of the bricks. Appellant classes the procedure as prejudicial error. We do not agree. What the jurors saw and inspected was all introduced by the State. Appellant's counsel appeared to agree that his objection was probably rendered moot when the total contraband was introduced. We agree.

Point III. Appellant contends the court abused its discretion in permitting the State to reopen the case after the State had rested. We find no such error. In the first place, the court stated that the case was being reopened to permit additional testimony only with regard to appellant’s co-defendants. Secondly, we are cited to no testimony whatsoever that was given to further implicate the appellant.

Affirmed.

Harris, C.J., not participating.


text:
    John SHELTON v. STATE of Arkansas
    CR 73-156
    504 S.W. 2d 348
    Opinion delivered January 28, 1974

      Don Langston, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant John Shelton was sentenced to four years confinement on a plea of guilty to grand larceny. At the tíme of sentencing he sought credit for time spent in jail. The trial court ordered the commitment pre-dated to give credit for only a part of the time spent in jail. The sole question on appeal is whether appellant was entitled, as a matter of right, to credit for the full time he was incarcerated.

This court has twice been faced with the same question. Kimble v. State, 246 Ark. 407, 438 S.W. 2d 705 (1969); Harper v. State, 249 Ark. 1013, 462 S.W. 2d 847 (1971). In Kimble, appellant received less than the maximum sentence. He sought, among other relief, credit for time served in jail prior to trial. On appeal we said: “Appellant argues that he should have been given credit on the present sentence for this amount of time. As to the days served in jail, we do not agree, for we have no statute permitting this to be done”. In Harper, we had the same question before us and we ruled as in Kimble. Also. see Gross v. Saruer, 307 Fed. Supp. 1105 (E. D. Ark., 1970). We are further persuaded by legislation on the subject. Ark. Stat. Ann. § 43-2813 (Supp. 1971). There it is provided that the sentencing judge may in his discretion allow credit for time served in jail. It is of considerable significance that the legislature has treated the subject and did not see fit to make the credit mandatory.

We hold that when the sentence imposed plus time served in jail awaiting trial does not exceed the maximum penalty, the prisoner is not entitled as a matter of right, to credit for full time served in jail while awaiting trial.

Affirmed.

Byrd, J., dissents.


author: John A. Fogleman, Justice.

text:
    Donald LANGSTON v. Robert W. JOHNSON
    73-191
    504 S.W. 2d 349
    Opinion delivered January 28, 1974

      Herby Branscum Jr., for appellant.

      William G. Fleming, for appellee.
   John A. Fogleman, Justice.

Appellant Langston filed with the Perry County Board of Election Commissioners a petition nominating him for the office of Mayor of Bigelow prior to the General Election in 1972. Ballots were printed and an election held on November 7, 1972. More votes were cast for Langston than for a write-in candidate named Brown. When the incumbent mayor, Johnson, continued to act as such in 1973, Lang-ston applied to the Circuit Court of Perry County, Arkansas, for a writ of mandamus commanding Johnson to cease to act as mayor and prayed that Johnson be required to show his claim to the office and that the trial court determine which of the two parties was mayor of Bigelow. Johnson answered that he had been duly elected and qualified as mayor; and prayed dismissal of Langston’s complaint. The circuit court held that Bige-low, an incorporated town, should elect a mayor only in every fourth year, commencing with 1966, and that Lang-ston had no claim to the office.

On appeal, Langston contends the court erred in so holding and in holding there was no statutory authority for an election in Bigelow in 1972. We agree with the circuit judge. Arkansas Statutes Annotated § 19-1201.1 (Repl. 1968) provides that the qualified electors of incorporated towns shall elect a mayor on the Tuesday following the first Monday in November 1966 and every four years thereafter. An election held without statutory authority is a nullity and authority to hold an election at one time will not warrant an election at another. McCoy v. Story, 243 Ark. 1, 417 S.W. 2d 954; McDaniel v. Edwards, 198 Ark. 288, 128 S.W. 2d 1007; Simpson v. Teftler, 176 Ark. 1093, 5 S.W. 2d 350. Application of the cited authorities, particularly McDaniel, dictated the disipissal of Langston’s complaint.

We do not understand hoyv' the, provisions of Ark. Stat. Ann. § 19-1202 and Ark. Stat. Ann. § 19-1206 (Repl. 1968) required that anrelection for mayor be held in Bigelow in 1972, Even if these1 sections otherwise would have required an election in 1972, there is nothing whatever in this record to show that the city council appointed Johnson mayor. The prohibition in § 19-1202 against an appointed officer serving beyond the term of the council making the appointment could not be applied in this case, even if it were otherwise applicable to the office of mayor, for the further reason that nothing in this record shows that the term of the Bigelow council had expired. In order to maintain his action, appellant had the burden of showing his own entitlement to the office. Ark. Stat. Ann. § 34-2203 (Repl. 1962). See Jones v. Duckett, 234 Ark. 990, 356 S.W. 2d 5; State v. Hagemeister, 161 Neb. 475, 73 N.W. 2d 625 (1955); Saylor v. Rock Castle County Board of Education, 286 Ky. 63, 149 S.W. 2d 770 (1941); Hermann v. Lampe, 175 Ky. 109, 194 S.W. 122 (1917); Tillman v. Otter, 93 Ky. 600, 20 S.W. 1036 (1893); State v. Ellington, 117 N.C. 158, 23 S.E. 250 (1895).

Appellant also argues that the court erred in not requiring Johnson to show his entitlement to the office. It is sufficient to say that Johnson was not required to make this showing until appellant had met the burden of showing his entitlement to the office, because appellant was not otherwise entitled to maintain the action. Under the authorities above cited, appellant could only succeed upon the strength of his own title, not the weakness of Johnson’s.

The judgment is affirmed.

Harris, C.J., not participating.


text:
    Alice Inez HURST v. Rex L. HURST
    73-195
    504 S.W. 2d 360
    Opinion delivered January 28, 1974

      Brown, Compton & Prewett, Ltd., for appellant.

      Haskins, Ward & Rhodes and Bruce Bennett, for ap-pellee.
   John A. Fogleman, Justice.

Appellant urges two points for reversal of a decree of divorce granted her husband on the ground of desertion. Appelleé filed his complaint on the 12th of January, 1973. Appellant filed a motion to dismiss, alleging that the Chancery Court of Union County had, by decree entered after a hearing held December 14, 1972, awarded her separate mainten-anee on her petition filed August 6, 1971, to which appellee had responded by answer and later by an amended answer and cross-complaint in which he alleged that he was entitled to an absolute divorce from appellant on the ground of personal indignities. It was also alleged in the motion that appellee’s cross-complaint for divorce in that suit was dismissed, that no appeal was taken from the decree and that the complaint in the present action should be dismissed because the issues were res judicata. The motion was denied and, after trial, the decree which is the subject of this appeal was entered.

Appellant asserts two points for reversal, i.e., error in denial of her motion to dismiss and error in finding that appellant had deserted appellee and remained away from his home without reasonable cause. We find no reversible error.

At the outset, we should say that res judicata is an affirmative defense, ordinarily to be raised only by answer. Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620; Southern Farmers Association v. Wyatt, 234 Ark. 649, 353 S.W. 2d 531. It cannot properly be raised by motion to dismiss. Southern Farmers Association v. Wyatt, supra. In any pleading raising the defense the facts upon which the plea is based must be set out. Widmer v. Wood, 243 Ark. 617, 421 S.W. 2d 872. The burden of proving this defense was upon appellant. Southern Farmers Association v. Wyatt, supra. Assuming that the defense could have been asserted by motion, it was incumbent upon appellant to produce evidence sustaining the allegations of her motion, in order to prevail on that defense. There is absolutely no evidence abstracted by either party which makes the required showing. The previous action is not mentioned in any way, other than in appellant’s motion, even though it is conceded by appellee that they were separated from August to December in 1971, and that there was a divorce suit between the parties, which was heard on December 14, 1971. The chancery court could not take judicial notice of a prior proceeding between the parties, even though it was in the same court. Lewis v. Lewis, 255 Ark. 583, 502 S. W. 2d 505 It must appear, either from the record or extrinsic evidence that the particular matter involved was raised and determined. Fisher v. Fisher, 237 Ark. 321, 372 S.W. 2d 612. Unless, of course, the matter was necessarily within the issues presented and might have been litigated in the prior action. Arkansas State Highway Commission v. Staples, 239 Ark. 290, 389 S.W. 2d 432. Otherwise, the action cannot be dismissed on the ground of res judicata. Southern Farmers Association v. Wyatt, supra. A judgment relied upon as a bar cannot be considered here unless it was introduced in evidence. Denton v. Young, 145 Ark. 147, 223 S.W. 380.

Appellant concedes that res judicata applies in divorce cases only when the second suit is on the same cause of action as the first, but we are unable to say that this is the case or even that the decree in any prior case between these parties was based upon any particular finding on any issue, even the cause of the separation. Consequently, we cannot apply the rationale of the case of McKay v. McKay, 172 Ark. 918, 290 S.W. 951, wherein it was held that a decree denying a wife’s prayer for divorce for cruel and inhuman treatment was conclusive, in a later suit by her on the ground of desertion, as to the question whether she had cause for leaving her husband and their home.

We do not overlook the possibility that the defense of res judicata might be established on a motion for summary judgment. But we cannot say that the pleading here was sufficiently identified as such a motion to require appellee to respond to it as such. Even if it were, and it could be said that it now appeared to us that there remained no genuine issue of material fact on the question, appellate relief from the denial of a summary judgment cannot be had, after trial on the merits. Williams v. Varner, 253 Ark. 412, 486 S.W. 2d 79; Deposit Guaranty National Bank v. River Valley Company, Inc., 247 Ark. 226, 444 S.W. 2d 880; American Physicians Insurance Co. v. Hruska, 244 Ark. 1176, 428 S.W. 2d 622.

Little need be said about the second point. Even though there was evidence tending to show that after a brief reconciliation of the parties, whether permanent and unconditional as asserted by appellee, or temporary and conditional in accord with appellant’s version, we cannot say that the chancellor’s finding that the departure of appellant from appellee and his home on Decern-ber 18, 1971, was not justified by the conduct of appellee, was clearly against the preponderance of the evidence. Ap-pellee testified that the parties settled their differences, put them in the past and started a new life under new conditions, but that appellant left without any reason. He specifically denied having struck or threatened her in December 1971, or having made any accusations about her having had affairs with other men, as he had previously done. Mrs. Hurst equivocated in her testimony to some extent. She said they had a quarrel on December 18 and thát she left after he had dragged her out of her automobile onto the driveway where they fought. She admitted, however, that after they got up he “got awful sweet” to the extent that she felt compelled to go in the house and have sexual relations with him. She testified later that they had an argument in the driveway on that occasion, and that she then had to go into the house and have sexual relations with him in order to get away from the home. She did admit that appellee did not physically force her to have sexual relations with him, but that she was afraid that he would not let her leave if she did not.

Since there is no reversible error, the decree is affirmed.

Harris, C.J., not participating.


author: J. Fred Jones, Justice.

text:
    City of JONESBORO, A Municipal Corporation v. Paul ARNOLD
    73-193
    504 S.W. 2d 351
    Opinion delivered January 28, 1974

      Warren Dupwe, for appellant.

      Lee Ward, for appellee.
   J. Fred Jones, Justice.

This is an appeal by the City of Jonesboro from a chancery court decree holding that the city was arbitrary in denying appellee Paul Arnold’s application to rezone his 11 acre tract of land within the city limits of Jonesboro from R-l to R-2 classification. On appeal to this court the city contends that the chancellor’s finding that the dty acted arbitrarily, capriciously and unreasonably in refusing the rezoning request, was contrary to the preponderance of the evidence. We do not agree with this contention.

It appears from the record that there are three classifications for residential zoning in the City of Jonesboro, and separate classifications for commercial zoning. It appears that R-l represents the highest and most desirable residential classification; that R-2 is the next highest classification and R-3 is the lowest residential classification. The R-2 classification permits apartment buildings while R-l is confined to single family dwellings. When land is taken into the city limits of Jonesboro, the R-l classification automatically attaches and the property remains in the R-l classification until rezoned by the city. It appears that commercial property is likewise classified in three categories as C-l, C-2 and C-3.

The 11 acre tract involved in this case is bounded on the west by Hester Street and on the south by Cherry Street. The record is not clear as to whether Cherry Street has been completely opened along the south boundary line of the property, but the property on the east is bounded by a drainage ditch which extends north more or less parallel with Hester Street for a distance of approximately two-thirds the length of the tract involved, at which point the drainage ditch curves to the northwest and continues as the northeast and north boundary line of the property until it is intersected at an angle by Hester Street. U.S. Highway 63 runs in a northwest-southeast direction on the northeast side of the drainage ditch, and the drainage ditch is traversed by a bridge from the north end of Hester Street to the highway.

There are three or four lots classified as R-l between the north end of Hester Street and the appellee’s property, but the remainder of the property immediately west of Hester Street and adjacent to appellee’s property is zoned R-3. The property north, east and northeast of the appel-lee’s property is zoned C-3. The property south of the appellee’s tract is still zoned R-l.

Appellee Arnold first submitted his application for rezoning to the Metropolitan Area Planning Commission. His application was approved and the rezoning wa's recommended by that body. The matter was then presented to the Jonesboro City Council and the application was denied.

Mr. Aubrey E. Scott, Chairman of the Metropolitan Planning Commission, testified that he is serving his sixth year on the Commission and the Commission approved Arnold’s request to rezone his property from R-l to R-2. He said he considered it to be in the best interest for future development of the city that the application be granted, because the property immediately east of Arnold’s property is classified as commercial, and the property across Hester Street immediately west of Arnold’s property is in an R-3 classification which is a less restrictive classification than the R-2 classification requested by Arnold. He said the property to the south of the Arnold tract is still in an R-l classification, and that it was automatically classified R-l when it was brought into the city limits.

Mr. Ralph Bang, another member of the Planning Commission, testified that in his opinion it would be to the best interest of the metropolitan area to re-classify Arnold’s property from R-l to R-2.

Mr. Roy Cooper, another member of the Planning Commission, and who is also engaged in general construction, testified that in his opinion the rezoning of Mr. Arnold’s property as requested, would be in the best interest for the future development of Jonesboro. He said that insofar as the terrain of the property is concerned, it would support either apartments or residential or commercial.

The appellee Paul Arnold testified that he had owned the property involved for about 15 years; that all the property across the drainage ditch east and north of his property is commercial and he is seeking an R-2 classification in order to build an apartment building on his property. He testified that it would not be economically sound business practice to build one-family homes under the R-l classification requirements on his property immediately across Hester Street from an R-3 zone. He said that if, and when, Cherry Street is extended along the southern boundary of his property, it would divide his property from R-l classification south of his property.

Mr. Bill Bowers, superintendent of a construction company and member of the City Council, testified that he voted to deny the request for rezoning because through his past experience as street superintendent for the City of Jonesboro, he knew there was a very narrow wooden bridge across the drainage ditch at the north end of Hester Street, and that Hester Street would be the primary means of ingress and egress to and from the property involved. He said that the bridge had been remodeled but that people in the area had requested street humps in order to slow the traffic down over Hester Street; that it was his opinion that apartment buildings would create more traffic and that it was because of the traffic problem he voted to deny the petition.

On cross-examination Mr. Bowers testified that Hester Street is relatively a residential street but could be widened if someone would give the right-of-way for that purpose. He also admitted that since he had established his attitude in the matter, the bridge from Hester Street to the highway had been repaired and is now “pretty close” to two-way traffic.

Mr. Ralph Strickland, another, mertiber of the City Council, testified that because o! the petitions and attitudes of the people in the area, together with the traffic situation requiring speed humps, he just simpiy had to vote against rezoning the property from R-l to R-2. He said he did not feel that an apartment building on the land involved would be to the best interest of the city. He said that his constituents in the area expressed to him a feeling that to rezone the property would create traffic hazards and that he had not seen any specific plans as to street development or the size of apartment building Mr. Arnold was planning in the area. On cross-examination he admitted that the property east of the Arnold tract is zoned commercial, but he said that the drainage ditch between the Arnold property and the commercial property could act as a buffer between the two zones.

Bill Bowers, a practicing dentist in Jonesboro and a member of the City Council, testified that the reason he voted to override the recommendations of the Planning Commission was, first of all, the request had been presented to the Commission previously and had been denied. He said that by talking to people in the neighborhood he determined that a majority of the people who lived in the neighborhood felt it was a part of their neighborhood and did not want this land rezoned. He said that one of their objections was that rezoning would permit more people to live on the land, thereby increasing the traffic on the streets. He said that he was opposed to so-called spot zoning and that he considered Mr. Arnold’s petition to be a petition for spot zoning.

On cross-examination Dr. Bowers testified that he drove the streets in the area, “knocked on a few doors” and called on people who had asked him to look into the matter. He said that the people he talked to live in the area; that they have to use the existing streets for access to and from work, and that the bridge across the drainage ditch at the end of Hester Street creates a particular problem in handling the traffic. He said that he voted against installing speed humps on Hester Street because he does not believe in speed humps. Dr. Bowers testified on cross-examination “There are [traffic] problems all over this particular area and this was one primarily because of the construction at the end of Hester.”

In tht case of City of Little Rock v. Andres, 237 Ark. 658, 375 S.W. 2d 370 (1964), we set out the standard for review in rezoning cases as follows:

“If the chancellor’s finding to the effect that the authorities were arbitrary in not changing the zoning is supported by a preponderance of the evidence, the decree must be affirmed. City of Little Rock v. Garner, 235 Ark. 362, 360 S.W. 2d 116; City of Little Rock v. Henson, 220 Ark. 663, 249 S.W. 2d 118; City of Little Rock v. Joyner, 212 Ark. 508, 206 S.W. 2d 446.”

There is no question that the property involved in this case is bounded on the east, north and west sides by zoning classifications less restrictive than the R-2 classification requested by Arnold and recommended by the Planning Commission. We note also that none of the property owners in the area testified in the case.

In the case of Olsen v. City of Little Rock, 241 Ark. 155, 406 S.W. 2d 706, the landowner’s application for rezoning his property from two-family residential to “D” apartment use, was denied by the City Administrative Agencies and the chancery court on appeal. None of the property owners in the affected area testified in that case and in reversing the chancellor’s decree, we said:

“In a case of this kind the chancellor should sustain the city’s action unless he finds it to be arbitrary. No matter which way the chancellor decides the question, we reverse his decree only if we find it to be against the preponderance of the evidence. City of Little Rock v. Garner, 235 Ark. 362, 360 S.W. 2d 116 (1962).
# # *
That the proposed rezoning will not adversely affect the neighborhood is confirmed by the complete absence of any protest on the part of other landowners in the area. Such apparently universal acquiescence in the proposal is decidedly unusual in zoning cases. * # * It is fair to conclude that none of the neighboring property owners — the group who would suffer the greatest damage if the reclassification is contrary to the public interest — oppose the plaintiffs’ petition. Upon the record as a whole we are convinced that the weight of the evidence lies on the appellants’ side.”

It is apparent from the testimony of members of the City Council that their primary objection to rezoning the property is because of the additional traffic such rezoning would likely create, especially on Hester Street. The chancellor viewed the area involved in this case with particular attention to the traffic on the streets, as well as the bridge across the drainage ditch at the end of Hester Street, and we are unable to say that the chancellor’s decree is against the preponderance of the evidence.

The decree is affirmed.

Harris, C.J., not participating.


text:
    Ralph M. KUYKENDALL et al v. Harrol L. NEWGENT et ux
    73-175
    504 S.W. 2d 344
    Opinion delivered January 28, 1974

      Davis, Plegge ¿r Lowe, for appellants.

      Thomas A. Glaze and William B. Blevins, for ap-pellees.
   Conley Byrd, Justice.

This is a case of slip and fall on ice and snow by a business invitee. From a judgment upon a jury verdict in favor of appellees Harrol L. Newgent and wife the appellants Ralph M. Kuykendall, Crestón B. Fendley and J. D. Ashley, d/b/a Razorback Drive Inn No. 2 bring this appeal. For reversal they contend that the trial court should have directed a verdict in their favor because (1) Newgent assumed the risk; (2) there was no proof that appellants were guilty of any negligence; and (3) a landowner is not liable for open and obvious hazards due to natural accumulations of ice and snow. We find no merit in any contention.

The record shows that appellants keep their restaurant open 24 hours a day. There is a front entrance for the appellant’s customers and a delivery entrance for supplies received. The delivery entrance has a slope of seven and three-quarters inches in a distance of four feet. The parking area adjacent to the delivery entrance is fairly level.

U. S. Climatological Data reflects snow and ice conditions on January 6th and 7th, 1973 with .4 inches of precipitation. The last measurable trace of precipitation of ice and snow was between 12:00 and 1:00 p.m. on January 6th.

Newgent testified that he was working for Brown Packing Company on January 7th. His duties as such employee required him to deliver meat to appellants which he did around' 8:30 a.m. on January 7th. He drove the truck near the delivery entrance and carried in one box. The next box contained a hind quarter of beef weighing from 80 to 100 lbs. He placed this box on his shoulder and as he started in his feet slipped forward and the box fell on top of him. With reference to Newgent’s knowledge of the conditions, the record shows:

“A. [Mr. Newgent] I started walking to the door, approaching the door, on the ice being as careful as possible knowing the bad conditions and also ice on the steps and stepped onto the ice and snow and the box came down on top of me.
,Q. [Mr. Davis] The part we’re particularly interested in is that you said ‘being as careful as possible knowing the bad conditions’ and there’s no question you say the conditions were bad?
A. Yes, sir, they were.
Q. You later told me that you felt there was approximately one inch of ice and snow all over the parking area in every part you could see in the — a picture similar to the ones we’ve introduced.
A. Yes, sir, it was covered with ice.”

When asked on cross-examination if it was his decision to walk across the icy spot, he replied: ‘‘the only decision I had to make was to keep my job.” On redirect he testified that when he fell, he did not know the delivery entrance had that much slope.

Newgent’s lack of knowledge of the slope would certainly make a fact issue on the assumption of risk. That doctrine depends upon actual knowledge of the risk. See McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753 (1972). 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. See McDonald v. Hickman, supra.

The duties of owners and occupiers of land to business invitees usually end when the danger is either known or obvious to the invitee. However, most authorities; see Prosser on Torts, Invitee § 61 (4th ed. 1971); 2 Harper and James, The Law of Torts § 27.13 (1956), and Restatement of Torts 2d § 343A (1965); recognize that under some circumstances a possessor of land may owe a duty to the business invitee despite the knowledge of the latter. To the contrary see Sidle v. Humphrey, 13 Ohio St. 2d 45, 42 Ohio Ops. 2d 96, 233 N.E. 2d 589, 32 A.L.R. 3d 1 (1968). Prosser on Torts, supra, explains the landowner’s duties under those exceptional circumstances in this language:

. .In any case where the occupier, as a reasonable man, should anticipate an unreasonable risk of harm to the invitee notwithstanding his knowledge, warning, or the obvious nature of the condition, something more in the way of precautions may be required. This is true, for example, where there is reason to expect that the invitee’s attention will be distracted, as by goods on display, or after lapse of time he may forget the existence of the condition, even though he has discovered it or been warned; or where the condition is one which would not reasonably be expected, and for some reason, such as an arm full of bundles, it may be anticipated that the visitor will not be looking for it It is also true where the condition is one such as icy steps, which cannot be negotiated with reasonable safety even though the invitee is fully aware of it, and, because the premises are held open to him for his use, it is to be expected that he will nevertheless proceed to encounter it . . . ”

Appellants here argue that since ice and snow in Arkansas are of an unexpected nature and short but hazardous duration we should not hold them liable as landowners for open and obvious hazards due to natural accumulations of ice and snow. We need not here determine whether a landowner would owe a duty to an invitee because of the accumulation of ice and snow on a parking lot nor whether the landowner would owe a duty to an invitee using an entrance way during such a storm or immediately thereafter, for the proof here shows that during the operation of a 24 hour business the accumulated ice and snow was permitted to remain upon a sloping entrance way for a period of some 18 to 20 hours. It would appear under those circumstances that the landowner should have anticipated that the dangerous condition would cause physical harm to one required to use the entrance way notwithstanding the known or obvious danger.

Affirmed.

Harris, C.J., and Holt, J., not participating.


text:
    AMERICAN PIONEER LIFE INSURANCE Company v. Mrs. Lawrence E. SMITH
    73-199
    504 S.W. 2d 356
    Opinion delivered January 28, 1974

      Davidson, Plastiras & Horne, Ltd., by: Cyril Hollings-worth, for appellant.

      Wright, Lindsey ir Jennings, by: Ronald A. May, for appellee.
   Conley Byrd, Justice.

Appellant American Pioneer Life Insurance Company seeks to avoid its liability upon a credit life insurance policy issued to Lawrence E. Smith upon the basis that his statement in the application that “I am now in good health” was incorrect within the meaning of Ark. Stat. Ann. § 66-3208 (Repl. 1966). It is admitted that the insured suffered from diabetes mellitus, having been hospitalized in 1956, and that he remained on medication therefore until his death. It is also admitted that he suffered a heart attack in 1968, which resulted in his receiving a disability retirement and that he continued to make regular visits to his doctor and to take three different types of medication therefor until the time of his death on September 23, 1971. The trial court held in favor of the beneficiaries.

For the reasons set forth in Dopson v. Metropolitan Life Ins. Co., 244 Ark. 659, 432 S.W. 2d 410 (1968), Life & Casualty Ins. Co. v. Smith, 245 Ark. 934, 436 S.W. 2d 97 and Union Life Insurance Company v. Davis, Adm’x., 247 Ark. 1054, 449 S.W. 2d 192 (1970), we reverse. Upon the admitted facts, we deem the statement “I am now in good health” to be an incorrect statement as a matter of law. Furthermore, we deem the proof as to materiality of the incorrect statement to be undisputed. Not only did the expert testify that the policy would not have been issued had the true facts been correctly stated but the autopsy reports shows the immediate cause of death as congestive heart failure.

Reversed.

Harris, C.J., not participating.


text:
    Donald C. KING v. STATE of Arkansas
    CR 73-136
    504 S.W. 2d 365
    Opinion delivered January 28, 1974

      Harold L. Hall, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Donald C. King seeks to set aside his manslaughter conviction on the basis of evidence discovered after the verdict. We find no merit in the contention.

The record shows two altercations between appellant and the decedent, his brother, on the date of the killing. The first altercation occurred while their mother and another brother were present. After that altercation was broken up and the decedent had started to watch television the brother and the mother departed. Thereafter appellant shot decedent at close range with a shotgun. To bolster his contention that he shot his brother because he was advancing toward him with a steak knife, appellant sought to show that decedent had a knife during the first altercation. Neither his brother nor his mother supported him on that issue during the trial. However, after the jury had retired, but before the verdict, the mother recanted and wanted to state that decedent did have a knife during the first altercation. The trial court refused to grant a mistrial before the jury returned or a new trial thereafter.

We find no abuse of discretion. See Cooper v. State, 246 Ark. 368, 438 S.W. 2d 681 (1969).

Affirmed.

Harris, C.J., not participating.