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

text:
    KANSAS CITY SOUTHERN INDUSTRIES, INC. v. David STEWMAN
    79-73
    587 S.W. 2d 12
    Opinion delivered September 24, 1979
    (In Banc)

      Hardin, Jesson & Dawson, for appellant.

      James D. Emerson, for appellee.
   John I. Purtle, Justice.

Appellee was awarded judgment in the Polk County Circuit Court for damages to automobiles allegedly caused by the negligence of the Kansas City Southern Railway Company. The appellant contends the court should have directed a verdict at the close of the appellee’s case and, further, that the verdict is not supported by substantial evidence. Appellant’s motion for a directed verdict was renewed at the close of all the evidence and again denied. The two questions to be answered by this Court are whether the court erred in refusing to grant appellant’s motions for directed verdict and whether or not the verdict was supported by substantial evidence.

We find that the court did not err in refusing to grant a verdict in favor of appellant but there was error in the manner of awarding the judgment. Therefore, the case will be reversed and sent back for further proceedings.

Appellee claims his automobiles were damaged during the summer of 1977 by the agent, servants, or employees of the railway causing gravel and railroad spikes to be thrown from their track into the windshield and the bodies of three automobiles. The automobiles were situated about 75 feet from the railroad in Mena, Arkansas. At this point the track is about 25 feet higher than the lot. The automobiles, which have been described as special interest automobiles, were apparently damaged when gravel and spikes from the railroad were thrown into them. Two of the automobiles were 1939 models and one was a 1957 model. There is no dispute that the spikes and gravel were in, on and around the automobiles when inspected by the appellee in October of 1977. Neither is it disputed that the gravel was the same type as that on the nearby railroad or that the spikes were those commonly used in the maintenance and upkeep of railroads.

The evidence relating to damages is quite confusing. The automobiles apparently were not antiques but were what is termed special interest vehicles. This would tend to increase their value over automobiles which were not of special interest. During the trial evidence of the estimated cost of repairs was introduced. Also testimony from witnesses giving a value of the automobiles some two or three years prior to the accident and up to one year after the accident was presented.

At the close of the appellee’s case the appellant moved for a directed verdict which was denied. Thereafter the appellant presented testimony which, in fact, showed the railroad had operated a bush hog along its tracks in that area about one month before the damages were discovered.

We first discuss the question of whether the court erred in failing to direct a verdict for the appellant. The motion was first made at the close of the appellee’s testimony. The motion was overruled by the court. Thereafter the appellant presented evidence in defense of the claim. On appeal it is not important whether the court was right or wrong in refusing to grant the first motion for a directed verdict because the appellant subsequently presented evidence. If there were evidence produced by the appellant, or which grew out of the defense of the case, sufficient to support a verdict, the court was correct in overruling the motion for a directed verdict at the close of all the evidence. Such an issue was considered by this Court in the case of Grooms v. Neff Harness Co., 79 Ark. 401, 96 S.W. 135 (1906). In a rehearing on the Grooms case this Court stated:

The defendant may, however, at the close of the plaintiff’s evidence, test its legal sufficiency by a request for a peremptory instruction in his favor. If, after a denial of the request, he introduces evidence which, together with that introduced by the plaintiff, is legally sufficient to sustain the verdict, he waives the error of the court in refusing to give the instruction.

To the same effect see Granite Mountain Rest Home v. Schwarz, 236 Ark. 46, 364 S.W. 2d 306 (1963).

The appellant introduced evidence showing it had operated a bush hogging machine in the area shortly before the damages were discovered by the appellee. Facts introduced by the appellee indicated the vehicles were damaged by spikes and gravel from the railroad. These facts, and other evidence, are sufficient to support a verdict even though the facts were all circumstantial. It is not necessary to have direct evidence in order to support a verdict.

We have on numerous occasions held that a well-connected train of circumstances is as valuable to the jury in reaching a verdict as that of direct evidence. We have even stated that such circumstantial evidence sometimes outweighs opposing direct testimony and any issue of fact may be established by circumstantial evidence when the circumstances are such that reasonable minds might draw different conclusions. Woodward v. Blythe, 246 Ark. 791, 439 S.W. 2d 919 (1969). We have also held, in determining the legal sufficiency of evidence, the testimony of a party to an action who is interested in the result will not be regarded as undisputed. Bridges v. Shapleigh Hardware Co., 186 Ark. 993, 57 S.W. 2d 405 (1933). We view the evidence on appeal in the light most favorable to the appellee and under the circumstances we cannot say as a matter of law that the evidence in this case is insufficient to support a verdict.

The measure of damages used by the court presents a different situation. The trial court, sitting as a jury, was obviously aware of the correct measure of damages and stated it to be the value of the vehicles immediately before the loss, less the value of the vehicles immediately after the loss. However, in reaching a decision on the amount of damages, the court failed to abide by this rule. We are not sure as to the exact method used by the court in reaching the verdict on damages. However, there was evidence concerning the value of the automobiles two or three years prior to the accident and their value a year after the accident. Also, there was evidence of the cost of repairs. At one point the court sustained the objection of the value prior to the accident because of remoteness in time. However, in reaching a decision it appears this testimony was actually considered. We do not find anywhere in the testimony evidence of the value of the vehicles immediately before and immediately after the accident.

Ark. Stat. Ann. § 75-919.1 (Supp. 1977) provides that in all cases involving damages to motor vehicles the measure of damage shall be the difference between the value of the vehicle immediately before the damage occurred and after the damage occurred, plus a reasonable amount of damage for loss of use of such vehicle. We have reaffirmed this measure of damages in cases too numerous to mention. We have no alternative but to reverse the case on the measure of damages.

Reversed and remanded for a new trial on all issues.

Harris, C.J., and Fogleman and Hickman, JJ., concur in part and dissent in part.

John A. Fogleman, Justice,

concurring in part; dissenting in part. I agree with the disposition of this case and the basis of the majority’s reversal. I would go further, however, and hold that the trial court erred in failing to grant appellant’s motion for a directed verdict at the close of all the evidence. I strongly feel that the finding that appellant was guilty of negligence which was a proximate cause of appellee’s damage is based upon nothing but speculation and conjecture.

The evidence, viewed in the light most favorable to appellee shows:

The lot on which Stewman stores his antique and special interest cars is behind a building in which Stew-man stores his personal cars. Stewman operates an antique car parts business at this location, which he shares with a heating and air conditioning business. In June, July and September, he had four or five cars stored on this lot, which was adjacent to the right-of-way of the Kansas City Southern railroad. The right-of-way is about 25 feet higher than the lot. He discovered the damage to his automobiles on the lot at some indefinite time. The damage could have occurred as long as six months prior to his discovery of it. Repair estimates were made and photographs of the automobiles taken in October, 1977. There were fresh cuts in the spike when Stewman first examined it. People walk down this section of the railroad. Children have played along this section of track on rare occasions. The right-of-way of the railroad is cleared by use of a brush cutter, which may be used in the vicinity of appellee’s lot once a year.
Richard Turman, appellant’s roadmaster, who patrols and inspects the tracks between Mena and DeQueen met with Stewman in September or October, 1977, having received information that Stewman wanted to talk to him about some damage at Stewman’s place of business. Stewman expressed the opinion that the railroad’s brush cutter caused the damage. Operators of the brush hog are instructed to raise their blade when passing along the right-of-way through town high enough to avoid its hitting anything. The brush hog machine was in the area on the last day of August and the first day of September, 1977. It passed through Mena on September 1. If the blade of the brush hog had hit the spike, it probably would have cut the spike in two. None of the spikes except the one imbedded in the windshield of the automobile bore any marks whatever. Two years earlier, the blade of this machine had struck a keg of new spikes, which had been placed near a switch for repair of the track, where there had been a derailment. Spikes were thrown with such velocity that they went through the side of a nearby van. The spike which struck the windshield of appellant’s car did not even go through the windshield. There was no pile of spikes on the right-of-way when Turman examined it. There was no way for the machine to throw a whole pile of spikes at once, without leaving some of them.

Conjecture and speculation, however plausible, cannot supply the place of proof. Russell v. St. Louis Southwestern Ry. Co., 113 Ark. 353, 168 S.W. 135; Farr v. Traders & General Ins. Co., 235 Ark. 185, 357 S.W. 2d 544. An inference cannot be based upon evidence which merely raises a conjecture or possibility. Glidewell v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W. 2d 4.

Furthermore, there was positive testimony by the operator of appellant’s brush cutter that he did not strike anything unusual when he came through Mena in September, 1977, and that whenever the blades strike anything unusual he can hear the sound from the blow. There was nothing to indicate that this testimony was so unreasonable as to be untrustworthy. The fact finder cannot capriciously disregard the reasonable testimony of a witness in order to give substance to a fanciful theory even though the witness may be an employee of a party to the action. Russell v. St. Louis Southwestern Ry. Co., supra; Missouri Pac. Rd. Co. v. Ross, 194 Ark. 877, 109 S.W. 2d 1246; St. Louis-San Francisco Ry. Co. v. Williams, 180 Ark. 413, 21 S.W. 2d 611.

The evidence may have been sufficient to give rise to a suspicion, perhaps a strong one, that the damage to appellees’ property was caused by negligence in the operation of the brush cutter, but no more. To have been substantial, the circumstantial evidence must force or induce the mind to pass beyond suspicion or conjecture. Pickens-Bond Const. Co. v. Case, 266 Ark. 323, 584 S.W. 2d 21.

I am authorized to state that the Chief Justice and Mr. Justice Hickman join in this opinion.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Vera B. SIMONETTI v. Meyer BRICK
    79-99
    587 S.W. 2d 16
    Opinion delivered October 1, 1979
    (Division I)

      Rieves, Rieves & Shelton, by: Frank C. Elcan, for appellant.

      Kent J. Rubens and Jake Brick, for appellee.
   George Rose Smith, Justice.

Vera B. Simonetti and Meyer Brick were candidates for the office of justice of the peace in the Democratic primary held on May 30, 1978. On June 5 Brick was certified as the nominee by a vote of 560 to 558. On June 14 Mrs. Simonetti filed a contest, alleging that six named persons voted for Brick, that they were not residents of the precinct in which they voted, and that their votes should not be counted. Brick’s answer denied the allegations of the complaint and asserted that twenty named persons illegally voted for Mrs. Simonetti and that their votes should not be counted. At a two-day trial in November the court cast out four votes for Brick and three for Mrs. Simonet-ti; so Brick was declared the winner, 556 to 555. Mrs. Simonetti argues three points for reversal.

First, the statute requires that a contest be filed within twenty days after the results are certified. Ark. Stat. Ann. § 3-1001 (Repl. 1976). On July 18, after the expiration of the twenty days, Mrs. Simonetti filed a petition for leave to amend her complaint, alleging that she had discovered that “numerous other voters” had voted illegally in the election. She did not allege the name of any such voter or that any such illegal vote had been cast for Brick. She merely sought leave to set forth additional names of persons who voted illegally. On August 26 leave to amend was denied by Judge Brown.

Both sides cite our cases holding that it is within the trial court’s discretion to allow amendments during the trial that do not change the grounds of contest or unduly delay the trial. Bland v. Benton, 171 Ark. 805, 286 S.W. 976 (1926); Ferguson v. Montgomery, 148 Ark. 83, 229 S.W. 30 (1921). The appellant insists that the denial of permission to amend was an abuse of discretion.

We do not think so. In the cases cited the proffered amendments appear to have stated facts asserting a cause of action. That is not true here. A complaint which does not charge that any specific illegal vote was cast fails to state a cause of action. Cowger v. Mathis, 255 Ark. 511, 501 S.W. 2d 212 (1973); McClendon v. McKeown, 230 Ark. 521, 323 S.W. 2d 542 (1959). We explained the underlying reason for the rule in Jones v. Etheridge, 242 Ark. 907, 416 S.W. 2d 306 (1967):

It places no burden on contestants to require them to state the names of the voters who allegedly voted “wet” and illegally and to show that if alleged illegal votes were purged it would change the election results. Before one can in good faith contest an election, he must have knowledge of the persons who voted illegally, some knowledge of how the persons allegedly voted, and he must be able to show that if the votes were purged it would make a difference in the outcome of the election. Otherwise, an election contest would become a fishing expedition. An election by the people should not be so lightly impugned by those who only hope to find enough information to change the result of an election.

In the case at bar Mrs. Simonetti’s complaint properly stated facts constituting a cause of action. The petition to amend, however, wholly failed to supply any information about the many other voters who assertedly voted illegally, nor was it alleged that the purging of their votes would have changed the result of the election. The time for filing a contest had expired. We cannot say the trial judge abused his discretion in denying the petition to amend.

Second, Mrs. Simonetti argues that the trial judge erred in refusing to allow her to ask the witness George Caster how he voted. Mrs. Simonetti did not mention Caster in her verified complaint. Brick, however, alleged in his verified answer that Caster did not reside in the precinct, that he voted for Mrs. Simonetti, and that his vote should not be counted. Mrs. Simonetti, as plaintiff, called a number of witnesses. The court, ruling upon each challenged vote as the trial progressed, found that four voters, all specifically named in the complaint, had illegally voted for Brick. That put Mrs. Simonetti ahead, 558 to 556. She then rested her case. Brick called a number of witnesses, and the court found that three voters, named in the answer, had illegally voted for Mrs. Simonetti. That put Brick ahead, 556 to 555. Brick then rested his case without having called Caster, whom Brick had subpenaed, as a witness.

At that point Mrs. Simonetti, over Brick’s objection, called Caster to the stand and, by questioning him, made what was ultimately ruled to be a proffer of proof that Caster had voted illegally. Judge Pearson, who was trying the case, held that he was bound by Judge Brown’s order denying leave to Mrs. Simonetti to amend her complaint. On that theory Judge Pearson withdrew his original indicated ruling that Caster had voted illegally and refused to permit counsel for Mrs. Simonetti to ask Caster how he had voted.

In the circumstances the court’s ruling was right. The only verified allegation about Caster in the pleadings was Brick’s statement that Caster had illegally voted for Mrs. Simonetti. During the trial in chief Mrs. Simonetti proved her verified allegations, that four illegal voters had voted for Brick. Brick in turn proved his verified allegations, that three illegal voters had voted for Mrs. Simonetti. At that point Brick rested. He had no reason to call Caster to the stand. For the court to have allowed Mrs. Simonetti to challenge Caster’s vote would not only have allowed her to amend her complaint, contrary to Judge Brown’s earlier ruling, but also have sanctioned a fishing expidition in the guise of rebuttal testimony, because Mrs. Simonetti never at any time alleged that Caster had voted for Brick. Apparently her counsel had no idea how he voted, for there was no proffer of proof that he had voted for Brick.

Finally, Mrs. Simonetti challenged the vote of C.H. Bond, III, on two grounds. First, she insists that Bond, age 20, was not a resident of the precinct on election day. This point presented an issue of fact upon which there is substantial evidence to support the trial judge’s rejection of the challenge. Bond had been living with his parents in the precinct, but about a year before the election he dropped out of college and worked for some 14 months on his father’s farm about 20 or 25 miles from the family residence. After the election he returned to college in the fall. He testified that although he slept at the farm he still had his room at his parents’ home, that all his personal effects except his work clothes were there, that he ate his meals and got his mail at his parents’ residence, and that he considered it to be his home. Bond’s testimony supports the trial court’s ruling.

Second, Bond, in applying for an absentee ballot, gave “work” as the reason for his expected absence from the precinct on election day. It is argued that Bond was not unavoidably absent, as the statute contemplates, because when he left his work at about 6:00 p.m. on election day he could have driven to Marion in time to vote. Ark. Stat. Ann. § 3-903. The trial judge was not required to construe the evidence so narrowly. Bond, in applying for an absentee ballot and voting in advance of the election, could not be expected to know to the minute when he would be able to leave work and drive to Marion. His good faith is not questioned. We cannot say as a matter of law that his vote should have been rejected.

We do not reach Brick’s cross appeal, questioning three votes for Mrs. Simonetti, because she has failed to show on direct appeal that the judgment is wrong.

Affirmed.

We agree. Harris, C.J., and Holt and Hickman, JJ.


author: John A. Fogleman, Justice.

text:
    Clyde A. FERGUSON et al v. James GREEN et al
    79-80
    587 S.W. 2d 18
    Opinion delivered October 1, 1979
    (In Banc)

      John T. Harmon, for appellants.

      Wilson, Dougherty <3f Mills, P.A., for appellees.
   John A. Fogleman, Justice.

This is the second appeal in this case. The case originated as an action by F & M Investments, Inc. against James Green and Cole Morgan to recover rentals alleged to have been due it under a lease-* purchase agreement. Appellees here filed a cross-complaint in which they alleged that they had exercised their option to purchase the real estate which was the subject of the lease-purchase agreement, but that the original lessors, Clyde A. Ferguson, Sharon C. Ferguson, Charles D. Matthews and Susan S. Matthews, who are appellants here, had failed and refused to convey the property to appellees here. They sought specific performance. The Greens and the Morgans raised the same issues in an action by Twin City Bank for foreclosure of a mortgage, but other issues in the foreclosure suit are not material here. That action was consolidated with the suit by F & M Investments, Inc. In the consolidated proceeding the chancery court dismissed the counterclaims of the Greens and the Morgans on the ground that they had failed to assume the mortgage in favor of Twin City Bank. We disagreed with the chancery court and held that the clause in the contract requiring the Greens and Morgans to assume that mortgage did not require that they also obtain a release of appellants here from that obligation, before the option to purchase the property could be exercised. Green v. Ferguson, 263 Ark. 601, 567 S.W.2d 89. Even so, the dispostion of the case on appeal on trial de novo on the record did not permit this court to direct a decree for specific performance by the appellees there (appellants here). In that trial, Clyde A. (Tony) Ferguson had testified that he and Matthews had conveyed the property to Freddie Hudson, a brother-in-law of Ferguson. He testified that no cash had been paid by Hudson to him and Matthews, but that Hudson had a letter of commitment from Arkansas Savings & Loan Association to finance his purchase for $165,000, and that there was no necessity for any money to change hands because he (Ferguson) had a letter of credit. Ferguson said that the deed to Hudson had been executed by Matthews and Ferguson, and had been recorded and delivered to Arkansas Savings & Loan Association, that the loan had been approved and signed, that the property was Hudson’s and that everybody was happy. He said that the transaction had taken place in early 1977 when Hudson had obtained a tenant for the building on the property. He also testified that Hudson had spent about $30,000 improving the building on the property, but that the building had burned on the day after Hudson or his tenant had first occupied it.

In disposing of the first appeal, in which appellees here were appellants and appellants here were appellees, we said:

Appellants contend they are entitled to damages for breach of contract in lieu of specific performance. The chancellor made no finding on the issue of damages since he found there was no breach of the contract. It is undisputed that appellees conveyed the land to another following the alleged breach of contract. It is well established that the measure of damages for a breach of contract to convey is based on the value of the land at the time of the breach. Kempner v. Cohn, 47 Ark. 519, 1 S.W. 869 (1886). Here appellants exercised their right to purchase as of November 1, 1974. Appellees had four months from that date to convey title and failed and refused to do so. Appellants adduced evidence from an appraisor that the fair market value of the property was $193,151 “as of 1975,” which figure, say appellants, would be reduced by the “mortgage indebtedness of $80,349 leaving an equity of [$102,803] of Appellants in the property.” This asserted equity is the amount of damages sought by them. The appraiser did not know the property was encumbered by a twenty year lease-purchase option which he said could result in the property being “worth more or it may be worth less.” Therefore, appellees argue that appellants did not sufficiently demonstrate the value of the property with respect to the date of the appraisal nor what effect the mortgage or the lease-purchase agreement had upon the value of the property. Ordinarily, we might agree with appellees. However, there is other evidence which should be considered with respect to the value of the property or damages in lieu of specific performance. It is undisputed that in March, 1975, some four months after appellants had exercised their option to purchase, appellees refused to sign appellants’ proffered deed to the property, with assumption of the mortgage, at which time it appears the mortgage balance due to TCB for the original construction loan of $85,000 was $80,349. It appears it became unnecessary to sell the property by a foreclosure sale. Appellees acquired possession and in January, 1977, conveyed the property to a relative of one of them for $165,000. Therefore, a difference of $85,651 ($165,000 — $80,349) existed based upon appellees’ own sale of the property. In the unique circumstances, we hold appellants are entitled at least to this sum for its damages in lieu of specific performance of the contract.

The decree of the chancery court was reversed and the cause remanded for proceedings not inconsistent with the opinion rendered.

At a hearing after remand, held on November 9, 1978, appellees here offered no evidence. Appellants then objected that judgment was being rendered without any testimony having been taken and asked to make an offer of proof. They then proffered the following testimony: that of Sharon Ferguson that the income tax returns of the partnership of F & M Investments did not reflect any profit from the sale of the real estate to Freddie Hudson; that of Freddie Hudson that he purchased the property for what was owed Twin City Bank on the condition that he could “finance the property” and that he made certain improvements using his own funds, but that he did not pay $165,000 for the property and never paid Ferguson or Matthews one penny; that of Charles Matthews that the sale to Hudson was on a “look-at, look-see thing” for $1.00 and other good and valuable consideration, but not for any price of $165,000 and that he purchased the property at the judicial sale on foreclosure of the Twin City Bank’s mortgage for just less than $99,000 and later through a real estate agent, sold the property for $107,500, suffering a loss of $11,073.89, after paying the real estate agent’s commission, the closing costs, and delinquent taxes that had accrued during “Mr. Hudson’s ownership,” without considering the interest accruing on a note before he obtained the funds to pay the real estate agent’s commission; that of Dietz, the real estate agent, that the sale was at fair market value, and was closed on June 1, 1978, and that his commission of $7,000 was paid on September 19, 1978; that of Ferguson that Hudson paid no money for the purchase of the property but assumed the note at Twin City Bank as the full purchase price and that the revenue stamps on the deed to Hudson, indicating a consideration of $165,000, did not reflect the actual consideration; that of H. B. Stubblefield that revenue stamps on a deed do not necessarily reflect the actual consideration, but that, in many instances, stamps in excess of the amount required by law are affixed.

Appellants on this appeal contend that appellees were entitled to only $19,079.78. This is the difference between the net proceeds of the sale by Matthews after his purchase at the foreclosure sale, less $80,349 paid as the balance due on the debt to Twin City Bank. They give no consideration to the loss of the building on the property when the option was exercised.

For the most part appellants rely for reversal on cases relating to remand of chancery cases for further proof, and on cases from other jurisdictions stating that retrial should be limited to certain issues only when it is clear that doing so will insure a fair trial. On the record before us at the time of the remand, there was no indication that our limitation of the issues on remand did not insure a fair trial of any issue remaining.

Appellants’ present argument really is that we should have remanded the case without placing a floor on the amount of damages recoverable by appellees. But this is a matter which was determined on the first appeal, on a record which clearly established that appellees were entitled to at least that minimum. Appellants advanced the same argument in their petition for rehearing, which was denied.

Appellants’ arguments are based upon a misconception, not only of the basis of our decision on the first appeal, but also of the scope of appellate review on the first appeal and the effect of that decision, as well. When the basis of our decision is viewed correctly in the light of the proper scope of appellate review on the first appeal and the effect of that decision, the decree entered by the chancellor was correct beyond doubt.

Appellants seem to think that we based our finding that they conveyed the property to Hudson for $165,000 upon a mirage produced by the amount of documentary stamps placed on the deed by which the conveyance was made. This is not so. The deed was not abstracted and, so far as the record reflects, never was introduced in evidence. Ferguson testified positively and unequivocally that the consideration for the deed was $165,000. He was asked, “What was the purchase price?” He answered, “$165,000.”

We find no suggestion in Ferguson’s testimony that this was a fictitious sale, or a conditional one, or that there was any chance that the consideration would not be paid. His testimony was quite to the contrary, and appellants had ample opportunity to develop the matter further. Instead of doing so, they elected to submit the matter solely on their contention that Green and Morgan were not entitled to exercise their option, without developing these facts and without offering evidence as to the damages suffered by the Greens and the Morgans.

When the case reached this court on appeal, it was reviewed as all equity cases are and should be reviewed. Equity cases are tried de novo on appeal upon the record made in the chancery court, and the rule that this court disposes of them and resolves the issues on that record is well established; the fact that the chancellor based his decision upon an erroneous conclusion does not preclude this court’s reviewing the entire case de novo. Sharum v. Terbieten, 241 Ark. 57, 406 S.W. 2d 136; Conrad v. Carter, 255 Ark. 327, 500 S.W. 2d 336. An appeal in a chancery case opens the whole case for review. All of the issues raised in the court below are before the appellate court for decision and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505; Gaither v. Campbell, 94 Ark. 329, 126 S.W. 1061; Arkansas State Board of Pharmacy v. Fey, 235 Ark. 319, 357 S.W. 2d 658. The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. Nolen v. Harden, 43 Ark. 307, 51 Am. Rep. 563; Lewis v. Lewis, supra. The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record. Larey, Commissioner v. Continental Southern Lines, 243 Ark. 278, 419 S.W. 2d 610.

This court reviewed this case according to the invariable practice in equity cases and found that the chancery court had reached the erroneous conclusion that Green and Morgan were not entitled to specific performance. But this did not conclude the review. On the record before us, the property had been conveyed to Hudson, thus eliminating specific performance as a remedy available to Green and Morgan because there was no indication that Hudson had any notice of the claims of Green and Morgan. Whenever specific performance of a contract is denied because it cannot be enforced in a chancery action, but there has been a breach of the contract, the plaintiff is entitled to recover damages for the breach and, the chancery court, having assumed jurisdiction of the action, should determine the damages resulting from the breach. Nakdimen v. Atkinson Improvement Co., 149 Ark. 448, 233 S.W. 694. Thus the question of damages for breach of the contract by appellants here was an unresolved issue and it was the duty of this court to determine the amount of damages. We properly considered this issue on trial de novo. Killingsworth v. Tatum, 203 Ark. 354, 157 S.W. 2d 30; Orr v. Bergemann, 225 Ark. 616, 284 S.W. 2d 105.

Green and Morgan had offered evidence on the issue and there was no reason for this court to believe that appellants here (appellees on the first appeal) had not offered whatever evidence they relied upon on that issue. They certainly had not been deprived of the opportunity to do so by any action of the trial court. Where the case has been once heard upon the evidence or there has been a fair opportunity to present it, this court will not usually remand a case solely to give either party an opportunity to produce other evidence; the rule, however, is not imperative and this court has the power, in furtherance of justice, to remand any case in equity for further proceedings, including hearing additional evidence. Fish v. Bush, 253 Ark. 27, 484 S.W. 2d 525; Wilson v. Rodgers (on rehearing), 250 Ark. 356, 468 S.W. 2d 750; Nakdimen v. Atkinson Improvement Co., supra; Brizzolara v. Powell, 214 Ark. 870, 218 S.W. 2d 728. It has been the invariable practice of this court not to remand a case to a chancery court for further proceedings and proof where we can plainly see what the equities of the parties are, but rather to render such decree here as should have been rendered below. Pickett v. Ferguson, 45 Ark. 177, 55 Am.Rep. 545; Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620. See also, Baxter County Bank v. Copeland, 114 Ark. 316, 169 S.W. 1180. The usual practice is to end the controversy by final judgment here or by directions to the trial court to enter a final decree. Wilbom v. Elston, 209 Ark. 670, 191 S.W. 2d 961. With the evidence fully developed, this court should decide the case without remanding it to the chancery court. Lewis v. Lewis, supra.

Following the conventional procedure, we undertook to determine what damages should have been awarded appellees Green and Morgan. It was clear to us that on the record before us that they were entitled to at least the difference between the consideration for the conveyance to Hudson and the mortgage indebtedness to Twin City Bank. We might well have entered judgment for that amount or directed the chancery court to do so, but Green and Morgan had offered evidence that the damages were $102,803, which appellees there (appellants here) had attacked on the ground that the expert witness’s testimony was based upon error for failure to take into consideration all the pertinent factors bearing upon the question. The only objection to that testimony was that it was irrelevant. We were unwilling to enter judgment here upon the testimony of the expert witness.

The appellate court does have the discretionary power to remand an equity case for further proceedings. Arkansas Commerce Com’n. v. St. L. S. W. Rwy., 247 Ark. 1032, 448 S.W. 2d 950. Even though the general rule is that this court will not permit cases to be tried piecemeal, an equity case may be sent back for additional proof when we find justification for a deficient record. Fish v. Bush, supra. We have exercised the power of this court to remand an equity case for further proceedings when it is clear to us that the chancery court’s decision was based upon an erroneous theory, and we cannot determine from the record the rights and equities of the parties. Lewis v. Lewis, supra. In such a case, the appellate court may, in its discretion, remand for further hearing, either on the whole case or on certain issues. Wilborn v. Elston, supra. The appellate court has the discretionary power to remand a chancery case for further proof on a limited point. Shick v. Dearmore, 246 Ark. 1209, 442 S.W. 2d 198. In exceptional circumstances, the appellate court is clothed with discretion to remand an equity case for additional proof, if that is necessary to achieve equity. Arnett v. Lillard, 247 Ark. 931, 448 S.W. 2d 626.

In retrospect, it might have been better if we had simply entered judgment for $84,651 here. But we exercised our discretion to remand the case for a determination whether Green and Morgan were entitled to recover more than that amount, because they asked judgment here on the basis of the expert witness’s testimony and other evidence might well have been offered by them, had the testimony of their expert witness been excluded upon objection or motion to strike in the trial court. This court exercised its discretion to remand the case for additional proof, limited to damages in excess of $84,651, and that decision here was conclusive on the parties, the trial court and this court, on a subsequent appeal, and the further proceedings in the trial court were strictly limited by our decision on the first appeal to the one matter left open. Gaither v. Campbell, 94 Ark. 329, 126 S.W. 1061; Fortenberry v. Frazier, 5 Ark. 200; Milsap v. Holland, 186 Ark. 895, 56 S.W. 2d 578. Appellants here had ho right to have the case reopened to permit them to offer evidence on the damage phase of the case since that proof could have been offered at the original trial. Carter v. Zachary, 243 Ark. 104, 418 S.W. 2d 787; Fish v. Bush, supra. The established practice of this court, when a new trial on any part of an equity case is intended, is to give special directions to that effect. Deason & Keith v. Rock, 149 Ark. 401, 232 S.W. 583. We followed that practice. Except for the matter left open in our decision on the first appeal, that decision was conclusive. Gaither v. Campbell, supra. The chancery court had no power to enter any decree except that directed by this court, and it had no power to change or extend the mandate of this court. Sellers v. Horney, 148 Ark. 390, 230 S.W. 575. The directions of this court upon reversal and remand in an equity case are the law of the case and the guide for the lower court in entering the decree. Walker v. Goodlet, 109 Ark. 525, 160 S.W. 399.

Whatever this court decided in the exercise of its appellate jurisdiction must be considered as finally settled. Fortenberry v. Frazier, supra; Ashley v. Cunningham, 16 Ark. 168; Milsap v. Holland, supra; Watkins v. Acker, 195 Ark. 203, 111 S.W. 2d 458. This court’s judgment or decree became the law of the case and the trial court could not have varied it or judicially examined it for any purpose other than carrying it into execution. Fortenberry v. Frazier, supra. No matter how irregular the decision of a superior court may be or upon what misapprehension of the facts it may have been made, it is the law of the case to the inferior court, and it must be obeyed. Cunningham v. Ashley, 13 Ark. 653; Ashley v. Cunningham, supra. The holding of this court became the law oí the case and the issues decided could no longer be litigated by the parties. American Co. of Arkansas v. Wheeler, 183 Ark. 550, 36 S.W. 2d 965; Wilborn v. Elston, supra. The chancery court can give no other or further relief as to any matter decided by the supreme court, even when error is apparent; it can only settle such matters as have been remanded to it and not adjudicated on appeal. Fortenberry v. Frazier, supra.

Where a judgment [or decree] is reversed for error in the proceedings in the court below and remanded for proceedings according to law and not inconsistent with the opinion of the court, it is always understood that the proceedings in the court below, prior to the fault or error which is ascertained by this court to exist, are in no wise reversed or vacated by the adjudication of the appellate court, but the fault or error adjudicated is the point from which the cause is to progress anew. Nelson v. Hubbard, 13 Ark. 253.

The question before the chancery court was what the judgment of this court was, not what it should have been. Sellers v. Homey, supra. Appellate power is exercised by the supreme court over the proceedings of inferior courts, not by the latter over those of the former. Fortenberry v. Frazier, supra. The chancery court may only inquire on remand concerning a matter which has never been adjudicated and which is not in conflict with the appellate court’s mandate. American Co. of Arkansas v. Wheeler, supra. The chancery court cannot review, alter or modify the judgment or decree of the appellate court for any supposed error or for any other matter that might have been considered on appeal. Meyer v. Johnson, 60 Ark. 50, 28 S.W. 797. What we said there is appropriate here, viz:

The motion of Mrs. Alice B. Johnson, as executrix of W. W. Johnson, deceased, was properly overruled. The object of it was to change or modify the judgment of this court for a supposed error. If such an error existed, it could have been corrected when this cause was here on the first appeal. The chancery court could not do so. It cannot “review, alter, or modify the judgments or decrees of this court for any supposed error, or for any matter which might have been considered here.” Jacks v. Adair, 33 Ark. 161.

To tolerate a disregard of the authoritative mandate of the superior court by an inferior one and a reinvestigation of the questions upon which a decision has been made by the inferior court would, in effect, constitute the inferior the superior one with power to decide upon the correctness and validity of the superior court’s decisions. Ashley v. Cunningham, supra. On this second appeal, after remand by this court on the first appeal, the question before us is what the judgment of this court was, not what it should have been. Sellers v. Homey, supra. Nothing is before us except the proceedings subsequent to the mandate. Milsap v. Holland, supra; Fortenberry v. Frazier, supra.

The minimum damages allowable to Green and Morgan and the terms of the remand on our decision are the law of the case and are binding on the parties, the trial court and this court, on this appeal, even if we should now think they were erroneous. Arkansas Baptist College v. Dodge, 189 Ark. 592, 74 S.W. 2d 645; International Harvester Co. v. Burks Motors, Inc., 252 Ark. 816, 481 S.W. 2d 351; Farmers Cooperative Ass’n. Inc. v. Phillips, 243 Ark. 809, 422 S.W. 2d 418; M. L. Sigmon Forest Products, Inc. v. Scroggins, 250 Ark. 385, 465 S.W. 2d 673; Wilson v. Rodgers, 256 Ark. 276, 507 S.W. 2d 508; Anderson v. McClanahan, 229 Ark. 239, 314 S.W. 2d 222; Collie v. Coleman, 226 Ark. 692, 292 S.W. 2d 80; Meyers v. Meyers, 214 Ark. 273, 216 S.W. 2d 54; Baker v. State, 201 Ark. 652, 147 S.W. 2d 17; Hutson Motor Co. v. Lake, 193 Ark. 200, 98 S.W. 2d 947; Stuart v. Barron, 148 Ark. 380, 230 S.W. 569.

The decree is affirmed, but modified to reduce the amount of the judgment by $1,000.

       In our opinion on the first appeal, where we subtracted 580,349 from 1165,000, we showed a remainder of 885,651, instead of the correct amount of 184,651. The law of the case is not so inflexible that we cannot resolve a conflict apparent on the face of the earlier opinion, by correcting an obvious arithmetical error.


author: Conley Byrd, Justice.

text:
    W. F. EWTON, Chief of Driver Control Section, Arkansas Department of Finance and Administration, Revenue Division v. Bernard J. BERG
    79-181
    587 S.W. 2d 26
    Opinion delivered October 1, 1979
    (Division II)

      Jack East III, Joseph Svohoda, Barry Coplin, H. Thomas Clark, Jr., by: Timothy J. Leathers, for appellant.

      Macorn, Moorhead & Green, for appellee.
   Conley Byrd, Justice.

Following appellee, Bernard J. Berg, Jr. ’s forfeiture of a cash appearance bond in connection with a driving while intoxicated charge, appellant’s predecessor, Chief of the Driver Control Section, Arkansas Department of Finance and Administration, Revenue Division, notified appellee that his driver’s license was being revoked for a period of three months pursuant to Ark. Stat. Ann. § 75-1029.4 (Supp. 1977), which provides:

“In addition to the fines and penalties as now provided by law under the provisions of Section 3 [§ 75-1029] of Act 208 of 1953, m amended, for persons convicted of driving or [being] in actual physical control of a motor vehicle while under the influence ©f intoxicating liquor or drugs, additional sanctions shall be applied as hereinafter provided.
1. (a) When a person has been convicted for driving, or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs, and such person has not been convicted of such offense for a period of three (3) years prior to the date of arrest on the charge which led to said conviction, such conviction shall constitute a first offense and the driving privilege of such person shall be suspended for not less than ninety (90) days. The court in which the conviction for first offense of operating or being in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs occurs may recommend that a restricted license be issued for the purpose of maintaining a livelihood or other dire needs of the licensee as may be determined by a Driver’s License Hearing Officer. The determination that restricted driving privileges are to be granted shall occur at an administrative hearing to be conducted by a Driver’s License Hearing Officer under provisions of existing statutory requirements for such hearings. The Hearing Officer conducting such hearing shall consider the total driving record of the person convicted for first offense of driving under the influence of intoxicating liquor or drugs for the purpose of deciding if a restricted permit should be issued, and to determine the restrictions to be placed on such person’s driving privilege in the State of Arkansas.”

On petition of appellee, the trial court enjoined the action of appellant on the basis that the statute, supra, did not authorize appellant to revoke appellee’s license— i.e. the revocation of the license was a duty imposed upon the courts of this State. We agree with the trial court.

Affirmed.

We agree. Harris, C.J., Holt and Purtle, JJ.


author: Conley Byrd, Justice. George Rose Smith, Justice,

text:
    Edward Leon TEAS v. STATE of Arkansas
    CR 79-29
    587 S.W. 2d 28
    Opinion delivered October 1, 1979
    (In Banc)

      Duncan & Davis, by: A. Wayne Davis, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Edward Leon Teas was charged by two felony informations filed on February 16, 1978, with the sale of two pills of morphine on December 14, 1977, and the sale of marijuana for $20 on December 5,1977. Over objections of appellant the trial court joined the two in-formations for trial. The jury assessed the maximum sentence and fine on both charges and the trial court ordered the sentences run consecutively. For reversal appellant raises the issues hereinafter discussed.

POINT I. With respect to severance of offenses, Criminal Procedure Rule 22.2 provides

“ (a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the, defendant shall have a right to a severance of the offenses.”

The proof on the part of the State shows only that sometime in 1973, Steve Hicks had sold drugs for appellant. After Hicks was arrested in November 1977, on a drug charge, he became a confidential informer for the State. In that capacity he went to the home of appellant on December 5, 1977 and asked for heroin. Appellant had no heroin but offered to sell Hicks some marijuana which Hicks bought. In connection with Hicks’ capacity as a confidential informer he tried five or six times to again contact appellant but was unable to do so. On December 14, Hicks went by appellant’s home and upon being informed that appellant was visiting one Steve Hall, Hicks went to Hall’s residence where he again asked to purchase some heroin. Appellant stated that he did not have any heroin but had some morphine. He sold Hicks the two morphine pills for $60.00.

The only connection we can find between the two sales is the fact that both were made to Steve Hicks. This showing alone is insufficient to connect the two sales by a single scheme or plan within the meaning of Criminal Rule 22.2 supra. It follows that the trial court erred in joining the two offenses for purpose of trial.

POINT II. Over objections of appellant the trial court permitted the State to put in proof of previous sales by appellant. To sustain the action of the trial court the State suggests that the evidence was admissible to show a single scheme or plan and that appellant by cross-examining the witness with reference to the other alleged sales is estopped to allege error. We find no merit to either contention. See Moser v. State, 266 Ark. 200, 583 S.W. 2d 15 (1979).

POINT III. The trial court after listening to the testimony of Billy L. Satterfield, Ollie Wilborg, Edward Teas, Jerry Roberts and Harold Helton overruled appellant’s motion to suppress the confessions. After a review of the record we find that the trial court’s finding of voluntariness is contrary to a totality of the evidence.

Billy Satterfield was called about 11:00 p.m. the day appellant was arrested. He was advised by Jerry Roberts and Ollie Wilborg that appellant had not made any statements at that time. The next day Satterfield had a conversation with appellant in the presence of Officer Wilborg. He states that it was his understanding that appellant could be of value to.the officers as an informer and that there was a mutual understanding reached that if appellant assisted the police, the police would in turn cooperate with appellant in the matter of reducing appellant’s bond and making recommendations to the prosecutor and to the court for leniency and possibly even dismissal of the cases.

Officer Wilborg admits that appellant’s helping the officers was discussed but that he told appellant and his lawyer, Billy Satterfield that anything appellant did would be told to the prosecuting attorney. However, he says he did not make any promises to appellant. Wilborg also told appellant and Satterfield that the Judge sets the bond, but that he would talk to Jerry Roberts about appellant helping the officers.

Officer Helton also testified that before appellant made any statements he stated he wanted to talk to his lawyer before he answered any questions.

Appellant Teas denies that he made any statements until after the discussion with Wilborg when Satterfield told him to tell it like it was.

For a confession to be free and voluntary, it must be given without hope of reward or fear of punishment. Payne v. State of Arkansas, 356 U.S. 560, 78 S. Ct. 844, 2 L. Ed 2d 975 (1958). Here we cannot say that the confession was not obtained without hope of reward. It follows that the trial court erred in not suppressing the confession:

POINT IV. We find no merit to appellant’s contention that the imposition of the maximum punishment and fine permitted by statute constitutes cruel and unusual punishment, Dyas v. State, 269 Ark. 303, 539 S.W.2d 251 (1976).

Reversed and remanded for proceedings not inconsistent herewith.

Harris, C. J., Fogleman and Hickman, JJ., concur in part and dissent in part.

George Rose Smith, Justice,

concurring. Criminal Procedure Rule 22.2 gives the defendant an absolute right to a severance when two or more offenses have been joined for trial solely on the ground that they are of similar character, but they are not part of a single scheme. Here the two offenses, sales of drugs, are unquestionably similar; so the controlling question is whether they were committed as part of “a single scheme or plan.”

I think it plain that they were not so committed. The purpose of Rule 22.2 is to give effect to the principle that the State cannot bolster its case against the accused by proving that he has committed other similar offenses in the past. Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). There are exceptions to that principle, however, as when two or more crimes are part of the same transaction, Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965), cert. denied 386 U.S. 964 (1967), or when two or more offenses have been planned in advance, as part of a single scheme. Ford v. State, 34 Ark. 649 (1879). The intent of Rule 22.2 must have been to carry into effect the spirit of those exceptions, by permitting the charges to be tried together when they are parts of a single scheme.

In drug cases the State cannot ordinarily prove that the accused sold drugs on one occasion by proving that he sold them on other occasions. Rios v. State, 262 Ark. 407, 557 S.W. 2d 198 (1977); Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913 (1971). Such proof of other sales, as we pointed out in Sweatt, would merely show that the accused had dealt in drugs before and hence was likely to do so again.

Here the two sales were nine days apart. There is no showing (as there was in Ford v. State, supra) that Teas planned in advance to sell drugs to Hicks on December 5 and again on December 14. There simply was no such scheme. I strongly disagree with the dissenting view that a scheme can be shown by proof that the accused was engaged in the business of selling drugs. Such a holding would simply abolish the Alford principle in drug cases, because the prosecution could always join charges of two or more drug offenses and ask that they be tried together, as part of a single scheme or plan. No such intention can be read into Rule 22.2.

John A. Fogleman, Justice, concurring in part; dissenting in part. I agree with the majority that testimony relating to other sales of controlled substances by appellant was not admissible on the question of guilt or innocence, even though it was on the question of severance; however, I respectfully dissent as to points I and III. I cannot agree that there is reversible error in the trial court’s action in consolidating the separate charges for trial. The trial court obviously acted under Rule 23.1 (a), Arkansas Rules of Criminal Procedure. Under that rule, the court may order consolidation of two or more charges for trial if the offenses could have been joined in a single indictment or information without prejudice to a defendant’s right to move for severance under preceding sections. Charges may be joined in a single indictment or information when the offenses are of the same or similar character, even if they are not part of a single scheme or plan, or when they are based on the same conduct or on a single scheme or plan, or when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Rule 21.1, Arkansas Rules of Criminal Procedure. If they are joined solely on the ground that they are of the same or similar character but are not part of a single scheme or plan, the defendant has an absolute right to a severance, Rule 22.2 (a), Arkansas Rules of Criminal Procedure.

The two offenses were of the same or similar character, i.e., sales of controlled substances. In my opinion, they were clearly a series of acts connected together or constituting parts of a single scheme or plan. The scheme or plan was to conduct a business of sale of controlled substances and to furnish them to Steve Hicks for a money consideration.

It was charged that the two sales were made within a period of nine days. Steve Hicks testified that he originally met Teas in 1973 on a night when he first purchased narcotics from Teas. Hicks said that Teas had supplied him with drugs off and on since that time and that he had purchased marijuana, morphine and heroin dulotta (a synthtic morphine) from Teas. On cross-examination, it was brought out that Hicks was guilty of four charges pertaining to drugs in 1974 and was sentenced to six months in jail and fined $500. Hicks said that Teas was then supplying him with drugs and that he made a living off drugs he sold for Teas, as far back as 1973 and 1974. Hicks testified about becoming a confidential informant after having been arrested in Sherwood in November, 1977, and about going to the residence of Teas in an effort to buy heroin. On the first occasion, December 5, 1978, he said Teas had no heroin, but sold him marijuana. On December 14, 1978, he again went to Teas’s residence, and when Debbie Shaw told him that Teas was at Steve Hall’s house, he went there and asked Teas for heroin. When Teas said he had some morphine, be bought two pills of morphine, instead.

In view of the history of dealing between the parties related by Hicks, the connection between the two sales was not dependent entirely upon the fact that both were made to Steve Hicks.

Other courts have dealt with similar matters. In People v. Kaplan, 86 N.Y.S. 2d 916 (1949), the defendant was charged with three counts of accepting bribes, on three different dates ranging over a period of 30 days. The bribes were allegedly received from three different persons. The defendant moved for severance and separate trials on the ground that the charges involved two or more acts or transactions which constituted crimes of the same or similar character which were not connected together and were not part of a common scheme or plan. In disposing of the motion, the court said:

It is obvious that the alleged acts, if true, constituted three crimes of the same or similar nature. However, it also appears that there is strong reason to suspect that the acts complained of, if true, constituted a part of a common scheme or plan on the part of the defendant to systematically shake down business men guilty of Labor Law violations within the area covered by him. Although different persons were involved in each instance, nevertheless, the three acts alleged occurred within a period of thirty days, within close proximity to each other in the same township, and the general pattern was the same.
Therefore, it seems to me that in the light of the situation as it here exists, the Court is absolutely barred from exercising any discretion whatsoever.

In Stephens v. State, 144 Ga. App. 779, 242 S.E. 2d 371 (1978), the defendant was charged with two robberies which took place 11 days apart and involved bailees of the same business establishment as the victim. The robberies occurred while these bailees were transporting money for the bailor and evidenced a common scheme or plan. It was held that severance was within the sound discretion of the trial judge, and that the appellate court should not substitute its discretion for that of the trial court where abuse of that discretion was not shown.

In cases where a party is charged with a number of similar offenses growing out of the same relationship of the parties and their dealings with each other, to have separate trials would unnecessarily occupy the time of the court and add enormously to the costs of the case. Williams v. State, 214 Md. 143, 132 A. 2d 605 (1957).

Our rules on joinder are similar to Rule 8 of the Federal Rules of Criminal Procedure. The pertinent portion of that rule reads:

(a) Joinder of Offenses. Two or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Charging a defendant with 11 separate offenses of making unlawful sales of narcotic drugs has been held to have been authorized by Rule 8(a) and in accordance with long established and conventional federal procedure, Brandenburg v. Steele, 177 F. 2d 279 (8 Cir., 1949). The joinder of charges against one defendant of selling heroin in June, 1968, and selling cocaine in August, 1968, for trial has been held not to be an abuse of discretion. United States v. Tillman, 470 F. 2d 142 (3 Cir., 1972).

The federal courts have found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials under the federal rules on joinder and severance. Drew v. U.S., 331 F. 2d 85 (D.C. Cir., 1964). The position of the federal courts was summarized in the opinion in that case, where the separate counts were robbery and attempted robbery. That court said:

In summary, then, even where the evidence would not have been admissible in separate trials, if, from the nature of the crimes charged, it appears that the prosecutor might be able to present the evidence in such a manner that the accused is not confounded in his defense and the jury will be able to treat the evidence relevant to each charge separately and distinctly, the trial judge need not order severance or election at the commencement of the trial. If, however, it appears at any later stage in the trial that the defendant will be embarrassed in making his defense or that there is a possibility that the jury will become or has become confused, then, upon proper motion, the trial judge should order severance.

In United States v. Adams, 434 F. 2d 756 (2 Cir., 1970), it was held that charges of sale of heroin hydrochloride on April 3, 1967 and possession of heroin hydrochloride on January 16, 1968, when accused was arrested, were properly joined as two transactions constituting part of a common scheme or design of “trafficking in narcotics.”

In my opinion, these offenses were part of a common scheme or plan.

I do not see how the majority can say that the holding that the written confession by Teas was voluntary was ’’contrary to a totality of the evidence.” Our standard on appellate review is that we will not reverse a finding of the trial court on the question of voluntariness of a confession, unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515. I would not feel that the majority was establishing a new standard by the mere use of new words, were it not for the application made of them. The majority seems to have resolved conflicts in the testimony against the finding of the trial court and concludes the matter by saying that “we cannot say that the confession was not obtained with hope of reward.” This is hardly a basis for saying that the holding of the trial court was clearly against the preponderance of the evidence. What the majority had said is not, and cannot be, an independent determination based upon the totality of the circumstances, giving due deference to the finding of the trial court. See Harris v. State, 244 Ark. 314, 425 S.W. 2d 293.

Sheriff Wilborg testified that he met with Satterfield and Teas in the jail between 4:00 and 5:00 p.m. on May 2, before Teas signed any statement. According to him, Satterfield had previously told him that he had talked to Teas and told Teas “to tell it like it was.” Wilborg said that Satterfield stated that Teas knew a lot of people and could probably help “get some people.” Wilborg testified that he then went and got Teas out of a cell and brought him to the top of the stairs, where the three discussed Teas’s helping the officers with some drug cases. Wilborg stated that he told Teas that anything Teas did “would be told to the prosecuting attorney” and that he told Satterfield that the judge sets the bond but that he would talk to Jerry Roberts about Teas’s helping them, and if Roberts wanted his help on some cases, he would try to get the bond reduced. Wilborg flatly denied that he offered to help Teas if he made a statement, or that he told Teas that he would grant leniency. Wilborg said that the only thing he told Teas was that, if Teas would give some assistance in setting up drug “buys,” that information would be passed on to the prosecuting attorney for whatever benefit it would be to Teas.

The question of credibility was resolved by the trial judge in favor of Wilborg. in such cases we must defer to the superior position of the trial judge to pass upon credibility of the witnesses. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139; Whitmore v. State, 263 Ark. 419, 565 S.W. 2d 133. The hope of reward that renders a confession involuntary is not one that arises in the mind of the accused. It must be induced by the words and actions of the interrogating officers and must be directed to the giving of a confession.

According to Wilborg’s testimony, if there was any “deal,” it was instigated by Satterfield, who advanced the proposal to Wilborg, after saying that he had told Teas to “tell it like it is,” and that “deal” was to inform the prosecuting attorney of any assistance Teas rendered. Nobody says that he rendered any.

In Hargett v. State, 235 Ark. 189, 357 S.W. 2d 533, we held that where an officer to whom a confession was máde testified that he told the accused, who was in the officer’s custody, that he would help the accused all he could but denied that this offer was conditioned on the accused’s admitting the crime with which he was charged, the question of voluntariness of the confession was one of fact. In Crosnoe v. State, 190 Ark. 691, 80 S.W. 2d 625, we held that the insurance commissioner and fire marshal’s statement to a defendant accused of arson that he had conferred with the prosecuting attorney and that the prosecuting attorney had said he would be inclined to follow whatever the official and the victim thought best in the matter, prior to a confession by appellant to the sheriff, was not a promise of immunity and did not render the confession involuntary when the sheriff testified that the statement was voluntary and the accused did not testify that he had been promised a hope of reward.

Before a confession is tainted by “flattery of hope,” that hope must be based upon the promise of a reward or advantage and the confession must be officially induced. Greenwood v. State, 107 Ark. 568, 156 S.W. 427. A confession made under the influence of hope of mitigation of punishment excited by those in authority is inadmissible as a voluntary confession Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909. In Freeman (cited by appellant), the major circumstance considered was that the deputy prosecuting attorney, when asked by the accused what would happen to him when he gave a statement, answered that if accused had committed a crime, it was probably one that would not result in more than 21 years’ imprisonment. The accused then gave a statement immediately after the deputy prosecuting attorney left. After the accused gave his statement, he was charged with robbery, which would have carried a maximum punishment of 21 years’ imprisonment. Later, after the accused had talked with the public defender, he became less cooperative with the authorities and a first degree murder charge was filed. We concluded that the accused, who had declined to make any statement prior to his conversation with the deputy prosecuting attorney, was justified in feeling that there had been an implied promise of leniency for his making a statement. The circumstances here are different.

In Penton v. State, 194 Ark. 503, 109 S.W. 2d 131, we held that a confession was not inadmissible because a deputy sheriff had told the accused that it would go well with the accused if he told the truth, when it was not coupled with innuendo or subtleties calculated to deceive the prisoner.

Unless this court resolves all questions of credibility against Sheriff Wilborg, it cannot reject his version of what happened, and cannot say that the trial court’s finding on the question of voluntariness was clearly against the preponderance of the evidence. I would affirm the trial court on this point.

I am authorized to state that the Chief Justice joins in this opinion.


text:
    Leroy HAIR v. STATE of Arkansas
    CR 79-131
    587 S.W. 2d 34
    Opinion delivered October 1, 1979
    (Division II)

      John W. Achor, Public Defender, by: Dewey Fitzhugh, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Pursuant to jury verdicts, appellant Leroy Hair was given consecutive sentences of 5 years for kidnapping, 10 years for first degree battery and 40 years for rape. For reversal he raises the issues hereinafter discussed.

The record shows that appellant was the boyfriend of the victim’s sister. While the victim was baby sitting for her sister, appellant broke into the apartment, struck the victim over the head and shot her in the shoulder. He then told the children that he was going to take the unconscious victim to the hospital. When the victim regained consciousness she was in appellant’íí car at Sweet Home. When the victim was later examined at the hospital the tests performed to determine whether male sperms were in the victim’s vagina proved positive. The victim testified that she had not consciously had intercourse with a man in the last 30 days.

POINT ][. Upon the foregoing evidence, we hold that the trial court correctly denied appellant’s motions for a directed verdict upon the rape and kidnapping charges.

POINT II. Count III of the information charged appellant w;ith the “crime of violating Ark. Stat. Ann. § 41-1803, RAPE, committed as follows to-wit: the said defendant . . . did unlawfully and feloniously engage in sexual ¡intercourse with Eartha Phillips, by forcible compulsion against the peace and dignity of the State of Arkansas.” After the proof at tria'l showed that the victim was unconscious from being struck on the head and shot in the shoulder at the apartment until she regained consciousness at Sweet Home, the trial court in addition to instructing the jury on “for cible compulsion” also instructed the jury on rape where the: victim is “incapable of consent because he is physiucally helpless” in accordance with Ark. Stat. Ann. § 41-1803(l)(b). Since the proof came in without objection, we cannot say that the trial court abused its discretion in giving the instruction over appellant’s objection. See Ark. Stat. Ann. § 43-1006 (Repl. 1977). Furthermore, appellant has not shown any prejudice from the court’s action.

POINT III. Appellant contends that the trial court erred in not instructing the jury on Sexual Abuse in the first degree, Ark. Stat. Ann. § 41-1808 (Repl. 1977), which provides: “(1) a person commits sexual abuse in the first degree if: (a) he engages in sexual contact with another person by forcible compulsion ... .” We find no merit to this contention because under the proof the victim was either raped or not raped. See Ark. Stat. Ann. § 41-105 (3) (Repl. 1977).

POINT IV. Since the trial court instructed the jury upon battery in the first degree and battery in the second degree and the jury returned a verdict finding appellant guilty of battery in the first degree, any alleged error of the court in refusing to instruct on battery in the third degree is rendered harmless by the jury’s verdict.

Affirmed.

We agree: Harris, C.J., Holt and Purtle, JJ.


author: Frank Holt, Justice.

text:
    James W. GIBBONS v. Art EASTHAM et al
    79-123
    587 S.W. 2d 36
    Opinion delivered October 1, 1979
    (Division II)

      Howell, Price <3? Howell, P.A., for appellant.

      Wright, Lindsey & Jennings, for appellees.
   Frank Holt, Justice.

Appellant filed a petition for writ of mandamus to compel the Board of Trustees of the North Little Rock Policeman’s Pension and Relief Fund to pay him a pension. The petition for the writ was amended alleging that the appellant was denied equal protection and due process of the law and sought, in the alternative, that the Board be ordered to hold a hearing comporting with due process and equal protection of the law.

Appellant contends that the court erred in denying his motion for summary judgment and in granting appellee’s motion for summary judgment. Summary judgment is properly granted when there is no genuine issue of a material fact and the moving party is entitled to judgment as a matter of law. Russell v. Rogers, 236 Ark. 713, 368 S.W. 2d 89 (1963); and Ark. Stat. Ann. § 29-211 (Supp. 1977). Here both the parties ask for a summary judgment asserting there is no disputed question of fact.

Appellant correctly contends that the five member Board voted at the February 16, 1978, meeting against a motion to deny him his pension. However, attached to appellee’s motion for summary judgment were affidavits from three of the Board members who were present, stating that each had voted with the intent to deny appellant’s pension at both meetings (February 16 and April 28) “as in my judgment he has not performed the faithful service required by Ark. Stat. Ann § 19-1809 (Repl. 1968).” Affidavits from the two members not present at the February meeting stated that they had sent prior written notice that each “wished to be recorded as voting to deny Mr. Gibbons’ application,” and that each had voted at the April meeting to deny appellant’s pension. In his cross-motion for summary judgment, appellant submitted his affidavit that he had served more than twenty years on the Police Department and the affidavit of a court reporter, which states: “At the meeting the motion was made by Chief Smith that Captain Gibbons’ request for a pension be denied, seconded by Mrs. Morgan. Chief Smith, Mrs. Morgan and Chairman Eastham all voted no to the motion that they deny Capt. Gibbons his pension.”

Appellant and his attorney were present at the February meeting when the three Board members present voted against the motion to deny the pension. Even though the members present voted not to deny the pension, it is undisputed that their intent was, in fact, to deny the pension. Futher, it is uncontradicted that none of the Board members voted affirmatively to grant the pension. In order to clarify the February vote, the Board, at the April meeting, without notice to appellant, voted to amend the minutes of the February meeting to reflect that the pension application was denied at that time; to again present the question of the pension to remove any misunderstandings of the earlier vote; and to deny the pension. Appellant argues that this action, without notice to him and pursuant to no regulations, denied him due process of law. However, during the hearing before the circuit court and before any decision by the court, appellee’s attorney agreed to a remand of the issue to the Pension Board for an additional hearing. Appellant’s attorney withdrew his prayer for a remand.

In the circumstances the court properly granted appellee’s motion for summary judgment and dismissed appellant’s petition for a writ of mandamus.

Affirmed.

We agree: Harris, C.J., and Byrd and Purtle, JJ.


text:
    Mrs. Francine Hardy SANDUSKY, Administratrix of the Estate of 1st Lt. Thomas Marvin SANDUSKY, Deceased v. FIRST ELECTRIC COOPERATIVE
    79-155
    587 S.W. 2d 37
    Opinion delivered October 1, 1979
    (Division II)

      Phillip H. Me Math, P.A., for appellant.

      Friday, Eldredge & Clark, by: Overton S. Anderson and Donald H. Bacon, for appellee.
   Frank Holt, Justice.

Appellant, as administratrix of the estate of her deceased husband, filed this tort action on behalf of their two minor children. The action was brought after the expiration of the three year statute of limitations contained in the Arkansas Wrongful Death Act, Ark. Stat. Ann. § 27-907 (Repl. 1962). The trial court sustained appellee’s demurrer on the ground that the action was barred by the statute of limitations. The only issue presented by this appeal is whether or not the general savings clause in Ark. Stat. Ann. § 37-226 (Repl. 1962) tolls the statute of limitations in § 27-907, which provides:

Every such action [wrongful death] shall be brought by and in the name of the personal representatives of such deceased person, and if no personal representative, then same shall be brought by the heirs at law of such deceased person. Every action authorized by this act [§§ 27-906 & 27-910] shall be commenced within three [3] years after the death of the person, alleged to have been wrongfully killed and not thereafter.

§ 37-226 reads:

If any person entitled to bring any action, under any law of this state, be, at the time of the accrual of the cause of action, under twenty-one [21] years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three [3] years next after full age, or such disability may be removed.

Appellant contends that the three year statute of limitations in § 29-907 is tolled when the plaintiffs, as here, are minors and that the cause of action does not accrue during their minority. The general rule is that a provision in a wrongful death statute which requires an action to be brought within a specified time is more than “an ordinary statute of limitations and goes to the existence of the right itself.” 25A C.J.S Death § 53b. In Anthony v. St. Louis I.M. & S. Ry. Co., 108 Ark. 219, 157 S.W. 394 (1913), we held that the “bringing of the suit within [three] years ... is made an essential element of the right to sue.” We cited with approval Earnest v. St. Louis Memphis and Southeastern Railway, 87 Ark. 65, 112 S.W. 141 (1908), which held that the time fixed by the statute becomes a limitation or condition on the right of action and will control. In Anthony, we specifically held that a general savings clause statute, as here, did not apply to suits brought under the wrongful death statute which statute accords a right of action that did not exist at common law. The Anthony rule has been consistently cited with approval and controlling in numerous decisions. Hicks v. Missouri Pacific Railroad Company, 181 F. Supp. 648 (W.D. Ark. 1960), appeal dismissed 285 F. 2d 427; Missouri Pacific Railroad Co. v. Armstrong, 184 Ark. 1076, 44 S.W. 2d 1093 (1932); Smith v. Missouri Pacific Railroad Co., 175 Ark. 626, 1 S.W. 2d 48 (1927). We hold it is controlling here.

Appellant also argues that since the general savings clause in § 37-226 has been applied to actions for medical malpractice, Ark. Stat. Ann. § 37-205 (Repl. 1962), it should be applied to the wrongful death statute because the two statutes are similar since neither statute contains a savings clause and each contains a statute of limitations. It is true that in Graham v. Sisco, 248 Ark. 6, 449 S.W. 2d 949 (1970), we held that the savings clause statute, § 37-226, tolled the two year statute of limitations, § 37-205, in malpractice actions. There is, however, a distinction between the two statutes. As appellee correctly observes, actions for malpractice are not statutory in origin. These statutes merely fix “the time in which action must be taken to enforce liability which they recognize as already existing.” Partin v. Wade, 172 F. 2d 50 (8th Cir.1949). However, it is well established in Arkansas that a right of action for wrongful death is of statutory origin only since no such cause of action existed at common law. Smith v. Missouri Pacific Railroad Co., supra. The limitation of time fixed by a wrongful death statute is a limitation on the right of action and is an essential element of the right to sue. Therefore, since the general savings clause provision of § 37-226 has no application to wrongful death actions, the court correctly sustained the demurrer.

Affirmed.

We agree: Harris, C.J., and Fogleman and Purtle, JJ.


author: Darrell Hickman, Justice.

text:
    Bob R. SMITH v. CITATION MANUFACTURING COMPANY, INC.
    79-85
    587 S.W. 2d 39
    Opinion delivered October 1, 1979
    (Division I)

      Ball & Mour tin, for appellant.

      Rose, Nash, Williamson, Carroll, Clay & Giroir, for appellee.
   Darrell Hickman, Justice.

Bob R. Smith, the appellant, was elected as a vice-president by the Citation Manufacturing Company, Inc. in Januray, 1975. At the same time he was elected a director. He went on Citation’s payroll about March the 1st. He was fired from his job as vice-president in June, after serving less than six months. Smith continued as a director until January, 1976.

Citation sued Smith in the Benton County Chancery Court for a breach of fiduciary duty and obtained judgment for $24,887.17. Smith was the sole stockholder of Equipment Sales & Service, a corporation to which Citation delivered some $65,000.00 in goods during 1975.

Smith appeals alleging essentially three errors. First, it is argued that because Citation had adequate knowledge of all Smith’s activities and information regarding Smith’s company, Smith did not breach his fiduciary duty to Citation. Second, the chancellor erred in refusing to admit a financial report prepared by an accountant. Finally, Smith argues the court erroneously determined damages.

Citation, an Arkansas corporation located in Siloam Springs, Arkansas, produces and distributes industrial cleaning equipment. Bob Smith had been a distributor of industrial cleaning equipment in California. He was introduced to Citation’s Board of Directors as one of the largest distributors in the states. He was hired as vice-president of operations and at the same time elected to Citation’s Board of Directors. Elmer Heinrich, the president and chairman of the board, had known Bob Smith, both of them having been in the business for some time, and introduced Smith to the board.

From January, 1975, through June, Citation sold to Smith’s California company some $65,000.00 worth of equipment.

Smith sold his company in California about June the 6th. It filed voluntary bankruptcy in October, 1975.

Citation claimed it was unable to collect all that was due for the sales to Smith’s company and suffered damages totall-ing $30,688.88 — as a result of Smith’s breach of his fiduciary duty.

The chancellor entered these specific findings and conclusions: . . .

6. From January 27, 1975 through June 1, 1975 Bob Smith had knowledge that Smith Investments and Equipment Sales were having cash flow problems, problems with collecting accounts, problems meeting their obligations as they arose, and other financial problems all of which were not disclosed to Citation. Knowledge of such problems would have been material to Citation’s decisions to extend credit and ship goods to Equipment Sales.
7. In June, 1975, Bob Smith received from Smith Investments two machines that Equipment Sales had purchased from Citation. Smith Investments had not paid Citation for the machines and Bob Smith knew this; he sold them for his own personal gain. . . .
2. Bob Smith, while serving as an officer and/or director of Citation, was negligent and breached his implied obligations and fiduciary duties as follows:
A. By failing to exercise ordinary diligence and good faith in neglecting to provide Citation with the information he had concerning his company’s probable inability to pay for goods purchased on credit from Citation.
B: By, failing to warn Citation that his companies would likely be unable to pay for the equipment purchased on credit when diligence and good faith required such warning.
C. By transferring equipment from Smith Investments and Equipment Sales to himself for satisfaction of his own personal obligations, knowing that Citation had not been paid for such equipment.
D. By permitting Citation to advance credit to Smith Investments and Equipment Sales in amounts exceeding their ability to pay when he knew or should have known that these companies would not pay for the goods.
E. By failing to make full and complete disclosure to Citation of the financial condition and affairs of Smith Investments and Equipment Sales as he knew them to be.
3. As a result of Bob Smith’s negligence and breaches of fiduciary duties, Citation has been damaged in the sum of $24,887.17 for which it should have judgment. . . .

On review it is our duty to affirm these findings unless we conclude they are clearly against the preponderance of the evidence. Porter v. Ark. Western Gas, 252 Ark. 958, 482 S.W. 2d 598 (1972).

There is no doubt Citation had information in its office that Smith’s financial dealings were suspect. Smith had been in bankruptcy court before and a Dun & Bradstreet credit report on file with Citation reflected that fact. Citation knew Smith was trying to divest himself of the company. Two checks from Smith’s company to Citation failed to clear the bank. Smith said he would take care of them.

Heinrich knew Smith owned the California company but denied he knew it was a corporation. Heinrich denied knowing of another corporation Smith owned called Smith Investments, of which Equipment Sales & Service was a division.

A critical shipment of equipment occurred in April, 1975. Heinrich wanted to ship $27,000.00 worth of equipment to Smith’s company. Smith said that much could not be accepted. Heinrich offered 60 days’ credit, the usual being 30 days. Smith accepted on his company’s behalf. It is undisputed that Heinrich and Smith agreed that if the equipment could not be sold, it would be reshipped to other distributors or buyers.

Smith’s main argument is that Citation knew all about his background and his ownership of the California corporation; further, that Citation knew, or should have known, about the California company’s financial condition.

There is no doubt that Citation did not know Smith withdrew $6,500.00 for himself when Smith came to Arkansas to be employed by Citation. Smith’s California manager testified that the account was overdrawn some $11,000.00 at about this time.

Smith did not tell Citation that he received two reports that the California company had an overdrawn bank account. A negative bank balance was a routine matter for the California company during 1975. Smith knew that shipments were made after he had this knowledge.

Smith’s manager in California testified he told Smith they could not pay for the large April shipment on time. Smith testified he checked with California and decided they could accept the shipment under the terms offered. Smith did not tell Citation his company had to sell equipment at cost to get operating money.

Smith took several pieces of equipment from his company when he sold it, knowing that it owed an outstanding indebtedness to Citation.

It is not apparent from the record that Smith told Citation he had lost a valuable line of merchandise — the Hotsy line. His company had sales of over $800,000.00 in 1974, the year it handled the Hotsy line; sales dropped to about $100,-000.00 the first five months of 1975. Smith regularly checked with the California company and had access to its continuing financial condition.

Smith was both a director and officer of Citation.

We defined the fiduciary duty of a director in the case of Sternberg v. Blaine, 179 Ark. 448, 17 S.W. 2d 286 (1929) as follows:

It may therefore be stated as the settled rule in this State that any failure of a director to exercise diligence or good faith which results in loss to a stockholder or creditor, entitles such stockholder or creditor to require the directors whose negligence have caused the loss to pay. In other words, the director whose negligence causes loss is liable for such loss to stockholders and creditors. Id. at 453.

We said in Bank of Commerce v. Goolsby, 129 Ark. 416, 196 S.W. 803 (1917):

For all practical purposes they (directors) are trustees when called upon in equity to account for their official conduct.

There is an even greater duty on one who is both a director and an officer in a company. Raines v. Toney, 228 Ark. 1170, 313 S.W. 2d 802 (1958).

The evidence in this case clearly supports the chancellor’s finding of a breach of the fiduciary relationship. There was testimony Citation did not fully know of the financial condition of Smith’s company, and if they had, the goods would not have been shipped.

Smith tried to offer as evidence an unaudited financial statement prepared by an accountant. The chancellor properly excluded it. It was not properly authenticated and no basis was laid for it being admitted as a business record, nor any exception defined in Rule 803 (6), Arkansas Rules of Evidence.

Smith argues the damages were excessive and Citation’s own unclean hands and negligence contributed to them. No doubt Citation knew some of the problems of Smith and his company. But a full and complete disclosure was due Citation by Smith and he fell woefully short of that mark.

Smith argues Citation knew of the sale of his company in June and had it acted promptly could have reduced its damages by $15,000.00. Smith says there was this much inventory of Citation equipment in California when he sold the company. Smith also argues he and Citation agreed that if the machinery could not be sold it would be redistributed and that Citation wrongfully failed to abide by this agreement.

No doubt if Citation had known in June what it learned later greater efforts would have been made to collect the debt. What those efforts would have been and the results of such efforts can only be speculation. There is conflicting evidence on whether there was sufficient Citation machinery on hand in June to cover the debt — it was about $30,000.00 at this time. Smith had removed two of the machines himself, knowing Citation was owed a substantial sum of money by his company.

The record reflects that Citation made extensive efforts to collect the debt. As a result of extended negotiations with the new owners and with a bank, about $10,000.00 worth of equipment was recovered, for which Smith received a credit.

It is undisputed that Citation, retaining no title or right to control over the equipment, sold the equipment to Smith’s company. There is no evidence the new owners were aware of any agreement between Citation and Smith to redistribute the machinery. In the written agreement Smith signed selling his company there is no mention of such a right — one Smith could have easily provided to protect his employer, Citation.

Consequently, there is no evidence Citation had any legal right to recover or reship the machinery. We cannot say the chancellor’s finding denying Smith’s claim for reduction of damages was clearly against the preponderance of the evidence.

Affirmed.

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


text:
    Norman F. WILLIAMS v. LITTLE ROCK CIVIL SERVICE COMMISSION et al
    79-205
    587 S.W. 2d 42
    Opinion delivered October 1, 1979
    (Division I)

      Mathews <3? Sanders, by: Roy Gene Sanders, for appellant.

      Joseph C. Kemp, for appellees.
   Darrell Hickman, Justice.

The only issue raised on appeal is whether a wrongfully discharged policeman may, in addition to his lost salary, recover his attorney’s fees.

We find no statutory authority for such a recovery and affirm the trial court’s judgment.

Norman Williams, a Little Rock policeman, was fired in October, 1977. The firing was upheld by the Little Rock Civil Service Commission. Williams appealed to the Pulaski County Circuit Court. It found Williams had been wrongfully discharged and ordered him reinstated with back pay, minus his outside earnings received during the period of discharge. Williams was denied recovery of the attorney’s fees he incurred for representation in the matter. It is not disputed the sum was $2,500.00. Williams appeals and asks us to hold that Ark. Stat. Ann. § 19-1605.1 authorizes the recovery of attorney’s fees. It reads in part:

... In the event that it is finally determined that there was a wrongful . . . discharge of any Civil Service Employee, such employee shall be entitled to judgment against the city for whatever loss he may have sustained by reason of. . . discharge . . . taking into consideration any remuneration which such ... employee may have received from other sources pending the final determination of his case. [Emphasis added.]

Appellant concedes the general rule is attorney’s fees are not recoverable absent statutory authority. However, he argues the word “loss” in the statute includes attorney’s fees. We disagree that the General Assembly intended for the generic and relative term of “loss” to have such a meaning.

We have consistently, for many years, held that attorney’s fees are not recoverable as an element of damages, except as specifically authorized by statute.

In Romer v. Leyner, 224 Ark. 884, 277 S.W. 2d 66 (1955) we discussed our previous decisions and the reasons attorney’s fees are not recoverable. They are in the nature of a penalty on litigation.

We have not ruled directly on the meaning of “loss” but we did, in a similar case, refer it back to the trial court for a determination of “net damages.” Sanders v. City of Fort Smith, 251 Ark. 494, 473 S.W. 2d 182 (1971).

In view of our uniform decisions denying attorney’s fees absent statutory authority, and acknowledging the General Assembly has in several instances specifically authorized attorney’s fees, we cannot read “loss” to include such a recovery.

Affirmed.

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