author: John A. Fogleman, Justice.

text:
    GENERAL MOTORS CORPORATION AND SCUDDER CHEVROLET, INC. v. Thomas Allen TATE, Administrator of the Estate of Marcelyn C. TATE, Deceased and Thomas Allen TATE, Individually
    74-133
    516 S.W. 2d 602
    Opinion delivered December 9, 1974

      Barber, McCaskill, Amsler & Jones, for appellant.

      Hall, Tucker & Lovell, for appellee.
   John A. Fogleman, Justice.

On this appeal the granting of a new trial after a successful defense of a wrongful death action is brought into question. Review here is complicated by our inability to ascertain the ground or grounds upon which the motion was granted. Ordinarily, the trial court has a wide latitude of discretion in granting or refusing a new trial. Security Insurance Co. v. Owen, 255 Ark. 526, 501 S.W. 2d 229; Ellsworth Brothers Truck Lines v. Mayes, 246 Ark. 441, 438 S.W. 2d 724. We do not reverse such an order in the absence of an abuse of that discretion that is manifest or clearly shown. Security Insurance Co. v. Owen, supra; Bittle v. Smith, 254 Ark. 123, 491 S.W. 2d 815. Furthermore, the showing of abuse of discretion must be much stronger where, as here, the appeal comes from an order granting a new trial than when a denial is involved. Security Insurance Co. v. Owen, supra. We have said that when an order granting a new trial is expressed in general terms without a specification of grounds, it must be affirmed if it can be supported on any ground alleged in the motion. Missouri Pacific Railroad Co. v. Clark, 246 Ark. 824, 440 S.W. 2d 198. Hall v. W. E. Cox & Sons, 202 Ark. 909, 154 S.W. 2d 19. The motion specified six grounds. The order granting the new trial simply recited that “it is the opinion of this court that justice would best be served by the granting of a new trial. . . ” Although we are committed to a review of all grounds of a motion for new trial in such a case to ascertain whether it can be sustained on any grounds, appellee argues that the granting of the motion could be justified on any one of three grounds. No reliance is placed upon any of the other grounds. Those three are:

I. The trial court erred in refusing a jury instruction requested by appellee which would have permitted him to recover for breach of warranty.
II. The trial court erred in refusing to give a jury instruction requested by appellee which would have permitted him to recover upon the basis of strict liability.
III. The verdict was not sustained by substantial evidence.

We are confident that appellee would present any other ground upon which he felt that the order could possibly be sustained. Consequently we will review only those grounds which appellee feels are justification for granting this motion. As we do, we must also consider that it is an abuse of discretion to set aside a jury verdict without reasonable cause. Ellsworth Brothers Truck Lines v. Mayes, supra.

Thomas Allen Tate brought this action against appellant General Motors Corporation and Scudder Chevrolet, Inc. in his capacity as personal representative of his deceased wife, Marcelyn C. Tate in his own right. He sought damages for wrongful death on behalf of the estate and next of kin and for his own personal injuries. He alleged causes of action against General Motors based upon strict liability, breach of warranty and negligence. His complaint against Scudder Chevrolet, Inc., the automobile dealer,was based upon breach of warranty and negligence.

Before their marriage, Tate’s wife purchased a 1966 Model Chevrolet Caprice from Chalmers Precise, Jr. about December 18, 1969. Title was placed in Tate and his wife after their marriage. Precise had purchased the automobile, manufactured by General Motors, from Scudder Chevrolet, Inc. on December 13, 1965. Marcelyn C. Tate was fatally injured and Thomas A. Tate injured, on June 2, 1972, when the vehicle, being driven by Tate, went out of control and crashed into a highway sign on Interstate Highway 30 in Saline County. Appellee alleged that the injuries were attributable to an unusual and uncontrolled acceleration of the automobile resulting from a rotation of the vehicle’s engine caused by failure of defective engine mounts. Appellant pleaded the statute of limitations and alleged that Tate’s own negligence was1 the proximate cause of the injuries.

At the conclusion of the evidence on behalf of appellee, the dealer’s motion for a directed verdict was granted. The grounds for the motion were that there was no evidence of negligence on its part and that the cause of action on breach of warranty was barred by the statute of limitations. Appellant’s motion upon the same grounds was denied. Appellant’s motion for a directed verdict at the conclusion of all the evidence was likewise denied.

The case went to the jury upon the question of negligence only, the circuit judge having refused to submit the issues of breach of warranty and strict liability by refusing instructions requested by appellee on those issues. A unanimous verdict for appellant was returned. After a hearing on appellee’s timely motion for new trial, the circuit judge took the motion under advisement. Later, he advised the parties of his opinion by letter. Thereafter, he denied appellant’s motion for a specification of the grounds for granting the motion and entered an order setting aside the jury verdict and granting a new trial upon the vague and general grounds hereinabove set out. By way of clarification the court entered an order stating that the granting of the new trial did not apply to Scudder, but that the directed verdict in its favor should stand. Appellant’s motion for a specification of the grounds upon which the motion for new trial was granted was denied.

Turning now to the three potential bases for the circuit judge’s action, we will discuss them in order.

I.

Appellant has contended throughout that any cause of action appellee might have had was barred by the statute of limitations. On the other hand, appellee contends that the cause of action was not barred and that the statute of limitations did not begin to run until the breach was discovered. The parties agree that appellee’s allegations and proof constituted the assertion of a cause of action for breach of an implied warranty. They also agree that this cause of action accrues when the breach occurs and the breach occurs when tender of delivery is made. See Ark. Stat. Ann. § 85-2-725 (Add. 1961). The tender of delivery, insofar as appellant is concerned, was on the date of the sale by the dealer, Scudder Chevrolet Co., to Precise, i.e., December 13, 1965. This action was brought on December 21, 1972. It is evident that more than five years intervened. The action was clearly barred by the failure to bring the action within four years after the cause of action accrued as required by Ark. Stat. Ann. § 85-2-725, unless the action fell within the exception stated in Ark. Stat. Ann. § 85-2-725 (2). That subsection states that a breach of warranty occurs when tender of delivery is made except when a “warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance, the cause of action accrues when the breach is or should have been discovered.” It does not seem logical that the Code intended that an implied warranty be explicitly extended to future performance. The words “explicit” and “implied” are contradictory. “Explicit” has been defined as meaning express, not implied. Webster’s Third New International Dictionary; Webster’s New International Dictionary, Second Edition; The Random House Dictionary of the English Language, Unabridged Edition. The exception relied upon by appellee is immediately preceded by the statement that the cause of action accrues when the breach occurs, regardless of lack of knowledge of the breach. It could not have been intended that an implied warranty be an exception, where injury results from a defect in goods, to the general rule. See White - Summers, Handbook on Uniform Commercial Code 341, § 11-8; Anderson Uniform Commercial Code, 2d Ed. 563, § 2-725:24. Other jurisdictions have rejected the contention made by appellee. Ohio - Val Decker Packing Co. v. Corn Products Sales Co. (6 Cir. 1969) 411 F. 2d 850; Everhart v. Rich’s, Inc., 128 Ga. App. 319, 196 S.E. 2d 475 (1973); Constable v. Colonie Truck Co.. 37 A.D. 2d 1011; 325 N.Y.S. 2d 601 (1971); Moody v. Sears, Roebuck & Co. 344 F. Supp. 844 (D.C., Ga. 1971). See also, Mendel v. Pittsburgh Plate Class Co., 291 N.Y.S. 2d 94 (1967). This conclusion is also consistent with pre-code law in Arkansas. Peterson v. Brown, 216 Ark. 709, 227 S.W. 2d 142. We do not see how the statute can be construed to bring this action within the exception to the applicable four year statute of limitations, so appellee’s cause of action was clearly barred. In spite of the circuit judge’s concern about his failure to submit the cause of action on breach of warranty to the jury, expressed when he took the motion for new trial under advisement, a new trial was not granted against the automobile dealer. It seems to us that the same evidence and the same warranty applied to both the dealer and the manufacturer. Be that as it may, the failure to give the requested instruction could not have afforded a basis for granting a new trial.

II

Appellee contends that Act 111 of 1973 [Ark. Stat. Ann. § 85-2-318.2 (Supp. 1973)] providing for strict liability was applicable to this case in spite of the fact that the cause of action accrued and the action was commenced prior to the effective date of the act. We had steadfastly refused to adopt the doctrine of strict liability in cases such as this by judicial action. Appellee contends that the legislative act providing for strict liability was intended to have retrospective effect as shown by a clause stating that it is remedial in nature. Furthermore, says appellee, the act did not create new rights but merely gave an additional remedy. We are unable to accept this argument. Strict liability is a new theory of recovery in a case of this sort. It is a liability imposed by statute. It confers upon a plaintiff the right to recover damages upon a theory and under circumstances where a cause of action did not formerly exist. See Frumer & Friedman, Products Liability, 3-237, § 16A [1]; Restatement of Forts, 2d Ed., § 402A Comment m, Prosser, The Assault upon the Citadel (Strict Liability to the Consumer) 69 Yale Law Journal 1099, 1134 (1960); Annot, Products Liability, 13 A.L.R. 3d 1057, 1074 (1967); Greenman v. Yuba Power Products, Inc., 27 Cal. Rptr. 697, 377 P. 2d 897, 901 (1963). Before the adoption of the act, appellee could have only recovered by proving negligence or a breach of warranty. After the passage of the act, for one in appellee’s position, neither negligence nor breach of warranty would be an essential ingredient of the cause of action on strict liability. Thus a new cause of action exists and a new liability is imposed. Any doubt about the legislative intent in this regard may be resolved by resort to the title of the act which reads, “An Act to Impose Liability for Injury and Damages Done in Certain Circumstances by Defective Products, and for Other Purposes.” The mere statement that the act is remedial does not overcome the presumption against retrospective effect.

Ill

Appellee’s action for negligence was based upon an allegation that the motor vehicle he was driving and in which his wife was a passenger at the time of their injuries was equipped with engine mounts that were defectively designed in such a way that upon failure of an engine mount the engine was allowed to rotate or move within the engine compartment, thereby causing the engine to speed up, or preventing it from slowing down, because of interference with the throttle linkage system. In this respect, we must review the testimony of Tate as to how the accident of June 2, 1972 occurred. It is substantially as follows:

On the Sunday in question he and his wife had planned to go to Hot Springs and sell the car, which then had been driven approximately 66,000 miles and for which he had previously received from appellant a recall notice for correction of a possible safety hazard which would exist if separation of an engine mount should occur on the vehicle. The Tates had had no problem or difficulty with the automobile. It was in excellent condition. They proceeded normally along the highway until they reached the point where the highway branches, with the Interstate highway going to Malvern and another fork otherwise designated going to Hot Springs. Tate was driving at approximately 70 miles per hour, his customary speed on the Interstate highway. He took his foot off the accelerator in order to decrease the speed of the vehicle so that he could make a turn to the right to the Hot Springs highway. He removed his foot completely from the accelerator and the speed of the vehicle decreased normally, as he would expect, for one or two seconds. It then seemed as if the vehicle went into passing gear, jerking forward. The speed of the car then accelerated and Tate tried to put his foot on the brake. He heard a roaring noise as if he had the accelerator pressed all the way down with his foot on the brake. He believed that he put both feet on the brake trying to stop the vehicle. The steering wheel locked, as if one had turned the key on a later model car to the “off” position, so that Tate could not turn it. Tate saw a roadside sign looming up in front of him but did not remember hitting it. The vehicle struck the sign, was severely damaged, Marcelyn Tate was killed and Tate suffered severe injuries. He said that the automobile was equipped with factory air conditioning.

There is no doubt that the left motor mount had failed by fatigue prior to the impact of the automobile with the sign post. The question was whether the fatigue failure of the left motor mount could have been the proximate cause of the accident and damages. All of the witnesses on this point were experts. Two of them were called by appellee and two by appellant. All agreed that a failure of this motor mount could, under certain conditions, permit the engine on this model of Chevrolet to rotate in such a manner as to interfere with the throttle linkage. There are certain factors, however, that clearly show that this could not have happened in this instance. Ellis McCorkle, one of appellee’s experts, testified that when the engine is accelerated, its torque tends to lift it frpm the left mount putting it in tension and putting the right mount into compression. He said that the motor could move out of position so that the accelerator linkage is affected and jammed into full acceleration by pulling the carburetor into full open position and that, if you took your foot off the pedal, it is still in the jammed position, even though the motor would be racing. He theorized that the engine in the Tate vehicle had rotated and locked the accelerator into a high speed position so that if Tate took his foot off the accelerator pedal it didn’t affect the application of the gas to the motor and the motor continued to race. This, of course, is not consistent with Tate’s testimony that when he removed his foot from the throttle, the speed of the vehicle decelerated.

Joe Harris, the other expert called by appellee, was of the opinion that motor mount failure was the cause of the accident, or at least triggered the events which culminated in the accident. He said that apparently when the driver of the Chevrolet asked the car to slow down, did partly, but not totally. He said that something caused the engine to continue to deliver power while the brakes were applied and the only thing that anybody could find on this car that might have been the cause of it was the defective motor mounts. He could not recall whether the car had air conditioning or not, but admitted that an air conditioning unit could introduce some restraint to the engine motion which might limit it somewhat, but he did not think that it was a prime consideration and did not take into consideration whether or not the vehicle had air conditioning when he was making his examination of it. He said that a forward movement of the engine would cause an increased acceleration by pulling the carburetor away from the accelerator, and he thought such was likely in this case, but thought there had been a twisting motion at one point in time. He said that the only time one had any problem with a separated motor mount is in low gear, on a sharp left turn or when driving down the road at 70 miles an hour and hitting a little bump. He recalled a bit of a left turn before the point of the accident (but Tate did not). He said that the road was not perfectly level.

Richard Maiers, an engineer who was employed by General Motors Corporation, testified as an expert. He said that the engine mount phenomenon associated with Chevrolet vehicles is one in which the engine will want to lift off the mount, if the left engine mount should, by reason of fatigue, impact or any other cause, become separated into two individual parts, which had happened at some time. He stated that engine lift could only occur under particular circumstances when the transmission is in first gear but under no circumstances could you have engine lift in anything except when the automobile was in the low gear. In first gear, by accelerating from a stop with the throttle all the way to the floor, the shift of first gear will occur at about 48 miles per hour. Engine lift could be maintained only up until the vehicle reached a speed of 40 miles per hour at which time the engine would fall back due to its own weight onto the left engine mount. One of the secondary effects of the separation of the left engine mount when there was significant engine rotation to the right could result in holding the throttle rod in the position the driver put it in under the proper conditions. However, he said that this will not cause increased acceleration. The effect, according to him, is merely to hold the throttle in the position it is already in by pushing hard enough on its side. He said that this occurs in low gear only. This, he said, had no effect on the steering system of the vehicle. This witness testified that the air conditioner compressor support bracket on this automobile limited the amount of engine movement in the automobile. The amount of engine lift or displacement permitted by the air conditioner is not sufficient to cause any of the secondary effects such as would affect the throttle or brakes and, with the air conditioning unit, the Tate vehicle could not have had an acceleration problem at any speed due to a separated engine mount, according to this witness.

Henry H. Hicks, Jr., a teacher in the mechanical engineering department of the University of Arkansas also testified that the stuck throttle phenomenon could not be possible on the Tate vehicle with the air conditioner in place.

No one attempted to contradict this testimony. Of course, one of the witnesses was an employee of appellant and the other employed for the purposes of this trial. Their testimony went to the matter of physical impossibility of the accident happening as Tate related being the result of the defective left motor mount. If this were not the case, surely the experts who testified for appellee could have shown that it was not.

There was really no reason why the testimony of these witnesses should be totally discarded. In a long line of cases we have said that when the testimony of one employed by a defendant in an action is not substantially contradicted by any testimony, fact or circumstance, and does not seem unreasonable or improbable, the jury cannot arbitrarily or capriciously disregard his testimony, and we have reversed judgments where this was done, and, where the case was fully developed, have dismissed the action. See St. Louis, San Francisco Ry. Co. v. Williams, 180 Ark. 413, 21 S.W. 2d 611; St. Louis, San Francisco Ry. v. Cole, 181 Ark. 780, 27 S.W. 2d 992; Missouri Pacific Railroad Co. v. Hancock, 195 Ark. 414, 113 S.W. 2d 489; East Texas Motor Freight Lines, Inc. et al v. Dennis et al, 214 Ark. 87, 215 S.W. 2d 145. In such a case we have held that where there is not sufficient evidence upon which to predicate a finding of negligence without arbitrarily disregarding testimony of such witnesses in favor of a theory equally hypothetical, a judgment against a defendant should be reversed and dismissed. St. Louis, San Francisco Ry. Co. v. Pace, 193 Ark. 484, 101 S.W. 2d 447; Missouri Pacific Railroad Co. v. Ross, 194 Ark. 877, 109 S.W. 2d 1246. Where it is impossible for a jury to have harmonized discrepancies in testimony without eliminating impossibilities and have substantial evidence upon which to predicate a verdict, this court will reverse a judgment on such a verdict. Missouri Pacific Railroad Co. v. Hancock, supra; See also Ellsworth Brothers Truck Lines v. Mayes, 246 Ark. 441, 438 S.W. 2d 724.

Since the testimony of Harris and Hicks was unaffected by conflicting inferences which might be drawn from it, and was not improbable, extraordinary or surprising in nature, there was no reason for denying the jury’s finding of verity dictated by it. Knighton v. International Paper Co., 246 Ark. 523, 438 S.W. 2d 721. There is a presumption that the trial court will not set aside a verdict that is not against the preponderance of the evidence when there is substantial conflict in the evidence, but that presumption does not apply in the absence of such a conflict. It is clear to us that the air conditioning unit was in place on the Tate vehicle and that the motor could not have rotated sufficiently to have interfered with the throttle linkage. It is clear that the decrease in speed of the vehicle when Tate took his foot off the accelerator is a clear indication that the rotation of the motor did not interfere with the throttle linkage.

It is also significant that McCorkle’s testimony is not consistent with Tate’s version of the accident. Under these circumstances we have concluded that it was not possible that this accident could have resulted from the failure of the left motor mount of the Tate vehicle. Thus there was no substantial evidence upon which the jury could have based a verdict against appellant. Since there was no substantial conflict in the evidence on these critical points the trial court could not have properly granted a new trial because the verdict was against the preponderance of the evidence.

In our consideration of this case, we have reviewed other such cases wherein the trial court has granted a motion for new trial without specifying the grounds for its decision. These cases always present perplexing problems in appellate review, not only to the appellate court in exploring every possible facet of the case to determine whether there has been an abuse of the trial court’s discretion, but to attorneys on both sides who have to brief the case. We have, in this case, assumed, properly we think, that the attorneys for appellee would, beyond doubt, present any ground upon which the action could be sustained. Even this approach is far from satisfactory, and only tends to add to the evergrowing burden of this court. Consequently, we are promulgating a rule governing the granting of motions for new trial in the future, which will tend to eliminate this problem and thereby improve the administration of justice. It is generally conceded that, in the interest of good practice and the proper dispatch of judicial business, courts should specify in orders granting new trials, with particularity the grounds on which the order is made. 58 Am. Jur. 2d 437, New Trial § 214; 66 C.J.S. 533, §210 (3) (a). The Appellate Court of Indiana met the problem headon when it was first confronted with it. See Rife v. Karns, 133 Ind. App. 226, 181 N.E. 2d 239. See also Pensacola Chrysler-Plymouth, Inc. v. Costa, 195 S. 2d 250 (Fla. 1967); Morton v. Staples, 141 S. 2d 806 (Fla. App. 1962); Simmons v. Koeteewaw, 5 Wash. App. 572, 489 P. 2d 364 (1971); Mulka v. Keyes, 41 Wash. 427, 249 P. 2d 972 (1952); Brooks v. De La Cruz, 12 Ariz. App. 591, 473 P. 2d 793 (1970); Heaton v. Waters, 8 Ariz. App. 256, 455 P. 2d 458 (1968); Rule 59, Federal Rules of Civil Procedure.

The rule we are promulgating by per curiam order is based to some extent upon the action of other courts.

Since we have found no ground which could have supported the granting of a new trial, we reverse the order and dismiss the action.


source: Caselaw Access Project

license: Public Domain

text:
    Willis E. SELF v. John DYE and Linda DYE
    74-197
    516 S.W. 2d 397
    Opinion delivered December 9, 1974

      Eugene Coffelt, for appellant.
    Lillie, l.mvrence & McCollum, by: James G. Mixon, for appellees.
   John A. Fogleman, Justice.

This appeal involves questions pertaining to the trial of an action to recover for damage to the automobile of John and Linda Dye in a collision with the motor vehicle of Willis E. Self. The collision occurred in the city limits of Rogers at the intersection of U.S. Highway 71 and Oak Street. Although no pleadings are abstracted, it is clear from appellant’s statement of the case, adopted by appellees, that both parties alleged that the other driver was negligent and that his negligence was the proximate cause of the damage. Traffic at the intersection was controlled by traffic lights.

Appellant states the following points for reversal:

1. That there was no substantial evidence to support the verdict rendered by the trial court in this action.
2. That the trial court erred in admitting or considering the police report of the officer who investigated this accident.
3. That the trial court abused its discretion in limiting cross-examination of witnesses.

We find no merit in any of these points and affirm the judgment, which was rendered by the circuit judge sitting as a jury.

I

Appellant argues that the testimony of Linda Dye (the driver of the Dye automobile) shows that she did not even see the vehicle driven by Self on Highway 71 until the two vehicles collided, and that her testimony about the collision was not corroborated, because one witness offered for that purpose was a police officer who remembered nothing significant and the other was not credible. Appellant asserts that, since it is clear that Mrs. Dye was not keeping a proper lookout and was driving with an infant in her lap, she was negligent as a matter of law, and that the damages should have been reduced under the Comparative Negligence Statute (Ark. Stat. Ann. § 27-1764 [Repl. 1962]).

We think appellant mistakes both the scope of our review and the issue before the trial court. The question here is whether there was any substantial evidence to support the judgment. The issue before the trial court was whether one, or the other, or both, of the drivers were guilty of negligence which constituted the proximate cause of appellees’ damage.

It is not necessary that we consider any testimony other than that of Linda Dye on this point. On this critical issue she testified as follows:

She was driving the Chevrolet automobile owned by her and her husband in a westerly direction on Oak Street, en route to a babysitter’s home, where she would leave her three-year-old daughter and then go to her place of employment. At the intersection, she stopped at a stoplight. After she waited almost the full time the light remained red for Oak Street traffic, it turned green, she pulled into the intersection and her car was struck by Self’s vehicle, which she had not previously seen. She travelled 10 or 12 feet and had gotten her vehicle into the “inside lane” on Highway 71 before it was struck. Highway 71 is a four-lane highway. When the Self vehicle struck her, it was in the first lane, or the right hand lane on Self’s side of the highway. After the collision, Self asked her what had happened, who had run the red light, and who had hit whom. Self said that he was day dreaming and really did not know what had happened.

This testimony was clearly substantial evidence of Self’s negligence and was sufficient basis for the trial court’s apparent finding that it constituted the sole proximate cause of the collision.

II

Denny Roles, a Rogers police officer, investigated the collision when it happened. He prepared an accident report which was kept in the files of the Rogers Police Department. Before he was called as a witness by appellees, he reviewed this report at the request of their attorney. He testified that it was his practice to take a statement from each driver involved in a collision. He recorded those statements on his report. It is clear from the record that Roles did not have any independent recollection of the statements of the drivers and his memory was not refreshed by reading his report. He could only be sure of the statement made to him by Self because he had recorded it in his report. Appellant objected to “what he has got in that statement”. Roles testified, after the objection was overruled, that Self had stated that he didn’t know what had happened.

The importance of this point cannot be overlooked because the trial judge resolved the conflict between the testimony of the two drivers by the officer’s report of what the parties stated at the time of the investigation. The report itse-J was never actually introduced, but a critical portion of its content was read into evidence. We cannot sustain the admission of this evidence on the basis of the class of evidence called “recollection refreshed” on the record before us. Reliance upon a written recital made by the witness when he had a clear recollection of the facts recited is classified as a “past recollection recorded”. See McCormick, (2d Ed.) p. 14, § 9; p. 712, § 299; 4 Jones on Evidence (6th Ed.) 251, 266, § 27:1, 27:9.

Evidence is admissible under this classification if the witness had first-hand knowledge of the facts recorded, if the written record is an original made at or near the time of the event recorded and while the witness had a clear and accurate memory of it, but lacks a present recollection of it, and if the witness can vouch for the accuracy of the written memorandum. McCormick (2d Ed.), p. 712, Chapter 30; 4 Jones on Evidence (6th Ed.) 254, 267, 27:3, 27:9. Many years ago, we applied this rule in Woodruff v. State, 61 Ark. 157, 32 S.W. 102. It was lucidly stated by Mr. Justice Battle in Phoenix Insurance Co. v. Public Parks Amusement Co., 63 Ark. 187, 37 S.W. 959. The proper foundation was laid for the officer’s reciting the statement made by Self as recorded on the report made at the time.

Ill

During the cross examination of Linda Dye, she was asked if she had examined the Self vehicle and if she knew which part of the vehicle was struck. She responded to both questions in the negative. The court sustained appellees’ objection to the further inquiry, “You don’t know that his extreme right front —.” We certainly recognize that the cross-examiner should be accorded wide latitude in attempting to elicit facts which would tend to contradict or impeach testimony given on direct examination. We also recognize that undue limitation on examination constitutes an abuse of the trial court’s discretion. Still, the cross-examiner may be restricted in posing argumentative questions or addressing a question to a witness that erroneously assumes that a material fact has been proved or that the witness has testified to such facts on direct examination. 58 Am. Jur. 366, Witness § 666; 98 C.J.S. 211, 215, Witnesses, § 411,413; 98 C.J.S. 36, Witnesses, § 3286 (5); McCormick on Evidence p. 11, § 7; 4 Jones on Evidence 166, § 2521. The right to ask leading questions does not license the examiner to testify, in effect, by making statements of fact. Woodruff Electric Cooperative Corp. v. T.J. Daniel, 251 Ark. 468, 472 S.W. 2d 919. We find no abuse of discretion on this ruling.

Later, on cross-examination of the police officer the record discloses the following:

By Mr. Coffelt:
Q. He stated that he didn't know what happened?
A. Yes sir.
Q. Is that statement unusual when a man is driving down the highway when the light is green and somebody runs into them?
Mr. Mixon: Object. Offering an opinion.
The Court: Objection sustained. That’s the ultimate decision for the court to make/
Mr. Coffelt: Save our exceptions.

Again we find no abuse of discretion. This question is also argumentative and assumes that appellant’s version of the disputed facts as to the color of the traffic light was true. It called for a conclusion or opinion of the witness, or the drawing of an inference by him. Whether an affirmative answer to the question would have cast doubt on the officer’s credibility or would have added weight to the statement of Self as recorded by the witness is certainly a matter subject to argument. To say the least, the court's action was well within the latitude of its discretion.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Willie L. ROBERTSON and REO MOVING & STORAGE Company v. Marilyn Jean BARNETT, Administratrix of the Estate of Carl Dewayne BARNETT, deceased
    74-152
    516 S.W. 2d 592
    Opinion delivered December 9, 1974
    [Rehearing denied January 13, 1975.]

      Mays & Landers and Bridges, Toung, Matthews & Davis, for appellants.

      Richard E. Griffin and Robert J. Johnson, for appellee.
   Conley Byrd, Justice.

This is an appeal from a $300,-000 default judgment entered in a personal injury action in favor of appellee Marilyn Jean Barnett, Administratrix of the Estate of Carl Dewayne Barnett, deceased, and against appellant Reo Moving & Storage Company of Illinois and its driver Appellant Willie L. Robertson. Appellants rely upon the following points for reversal:

“POINT I. The trial court erred in finding that the appellants should not be permitted to plead to the complaint notwithstanding that time for pleading had expired.
POINT II. The trial court erred in entering judgment against appellants because a co-defendant, Clarence Poole, had filed an answer which inured to the benefit of appellants.
POINT III. Appellants should have been permitted to remove the case to Federal Court.
POINT IV. The court erred in admitting evidence as to damages for loss of parental guidance.
POINT V. The judgment is excessive.

POINT I. Appellants admittedly received proper service of the summons and complaint sometime around October 24, 1973. Appellant Reo Moving & Storage Company (hereinafter referred to as “Reo") promptly turned its summons and complaint over to its insurance broker Lindquist Burns Insurance Agency. William Leonard of the Lindquist Burns Insurance Agency mailed the summons and complaint to R. E. Potter, Ltd., through whom “Reo’s” liability coverage with U.S.F.&G. had been obtained. R. E. Potter, Ltd., is apparently a general ageni for U.S.F.&G. Potter told U.S.F&G.’s claim department that he had delivered the summons and complaint to U.S.F.&G.’s adjuster Mr. Ward Chase. Ward Chase denies that Potter delivered the summons and complaint. At any rate “Reo” had thirty days within which to answer the complaint, but due to the neglect or default of its insurance agents, no answer or response to the complaint was made until December 19, 1973. Appellants in both the trial court and here contend that their failure to answer within time was caused by “excusable neglect, unavoidable casualty and other just cause” within the meaning of Ark. Stat. Ann. § 29-401 (Repl. 1962). That statute provides:

“Judgment by default shall be rendered by the Court in any case where an appearance or pleading, either general or special, has not been filed within the time allowed by this Act; provided, that the Court may for good cause allow further time for filing an appearance or pleading, if application for granting further time is made before expiration of the period within which the appearance or pleading should have been filed; and that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause.”

Appellants quote from decisions of this court prior to Acts 1955, No. 49, and from decisions of other courts construing similar statutes to the effect that the delay in responding to the complaint came about through “excusable neglect, unavoidable casualty or other just cause. ” The history of the lax procedure before Acts 1955, No. 49, and the effect and purpose of the change brought about by Acts 1955, No. 49, can be found in Walden v. Metzler, 227 Ark. 782, 301 S.W. 2d 439 (1957), and Pyle v. Amsler, Judge, 227 Ark. 785, 301 S.W. 2d 441 (1957). The effect of the 1957 Amendment, Acts 1957, No. 53, which provided: “. . . that nothing in this Act shall impair the discretion of the Court to set aside any default judgment upon showing of excusable neglect, unavoidable casualty or other just cause,” has been considered in Interstate Fire Insurance Co. v. Tolbert, 233 Ark. 249, 343 S.W. 2d 784 (1961); Moore, Adm'x v. Robertson, 242 Ark. 413, 413 S.W. 2d 872 (1967); and Ryder Truck Rental v. Wren Oil Dist. Co., 253 Ark. 827, 489 S.W. 2d 236 (1973). We can see little difference between the neglect of the agents and employees involved in Interstate Fire Insurance Co. v. Tolbert, supra, and in Ryder Truck Rental v. Wren Oil Dist. Co., supra, and the agents to whom “Reo” entrusted its affairs. Consequently, we must hold that the trial court did not err in finding that appellants’ conduct did not amount to “excusable neglect, unavoidable casualty or other just cause.”

POINT II. Appellants contend that an answer filed by a third defendant, Clarence Poole inured to their benefit and that because thereof the trial court erred in entering the default against them. We find no merit in this contention because the issue is raised for the first time on appeal. Furthermore, there were separate allegations of negligence against Poole that did not arise out of any relationship of indemnity, master and servant, or principal and agent such as was involved in Arkansas Electric Co. v. Cone-Huddleston, 249 Ark. 230, 458 S.W. 2d 728 (1970).

POINT III. Appellants contend that since they did not know about the voluntary non-suit against Poole until they received the precedent for judgment, the trial court erred in not setting aside the default judgment so that they could remove the case to Federal Court on diversity of citizenship. We find no merit in this contention, because as pointed out in Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574, 74 S. Ct. 290, 98 L. Ed. 317 (1953), a state court’s procedural provisions cannot and do not control the privilege of removal granted by federal statute.

POINT IV. Appellants objected to any evidence for loss of parental guidance of the five children left by the decedent on the ground that there was no allegation in the complaint on that issue.

The allegation in appellee's complaint on that issue was as follows:

“. . . that his wife, Marilyn Jean Barnett and five minor children suffered and sustained severe pecuniary injuries, suffered severe mental anguish and the wife suffered loss of consortium as a result of the death of her husband.”

Appellee recognizes that under our prior cases, Helena Hardwood Lumber Co. v. Maynard, 99 Ark. 377, 138 S.W. 469 (1911), that before one could recover for loss of parental care and guidance the matter must have been specifically pleaded. However, to avoid that requirement, appellee points to AMI 2215 and our per curiam order of April 19, 1965, to the effect that an AMI instruction should be used where applicable unless the trial court finds that it does not accurately state the law.

Our per curiam order of April 19, 1965, was neither an attempt nor was intended to affect or to change pleading requirements. We note also that, appellee’s interpretation has not been given to the per curiam order by the members of the drafting committee of AMI — see article by Henry Woods in 20 Ark. L. Rev. 73, 80, wherein it is specifically recognized that before the instruction on loss of parental guidance can be given it must be specifically pleaded.

In both Starks v. North Little Rock Policemen’s Pension and Relief Fund, 256 Ark. 515, 510 S.W. 2d 305 (1974), and Kohlenherger, Inc. v. Tyson’s Foods, Inc., 256 Ark. 584, 510 S.W. 2d 555 (1974), we pointed out that because a default judgment is in the nature of a forfeiture, a judgment by default must strictly conform to and be supported by the allegations of the complaint. Of course, when appellee’s pleading is tested by that rule, we find that the issue of loss of parental guidance was not sufficiently pleaded to permit the introduction of proof in connection therewith.

However, the error of the trial court in admitting the evidence does not necessarily require an outright reversal of the whole judgment. At the conclusion of the evidence the record shows that in arriving at the total amount of the judgment the trial judge, before whom the case was tried without a jury, determined that he would allow $100,000 for loss of contributions, funeral bills and the value of the pickup truck that was destroyed; $50,000 to the widow for loss of consortium and mental anguish; and $30,000 for each of the five children. Of course, the error in admitting the evidence as to loss of parental guidance involved only the $30,000 item for each of the five children and if this element be stricken from the judgment by remittitur then the balance of the judgment can stand.

POINT V. Appellants here argue that the award of $200,000 for mental anguish is not supported by the record. We need not determine this issue since under Point IV, supra, appellee must enter a remittitur for $150,000 or the case will be remanded for a new trial. We do not consider the $50,000 award to the wife for mental anguish and loss of consortium as excessive on the record before us.

If within 17 days the appellees enter a remittitur for $150,000 — (i.r. $30,000 for each of the five children) the judgment will be affirmed. Otherwise the judgment will be reversed for a new trial.

Affirmed on condition of remittitur.


author: Frank Holt, Justice.

text:
    James H. DEVAZIER and Debra Dawn DEVAZIER v. WHIT DAVIS LUMBER COMPANY and F & S CONSTRUCTION COMPANY
    74-205
    516 S.W. 2d 610
    Opinion delivered December 9, 1974

      McMath, Leatherman & Woods, by: Phillip H. Me Math and Mart Vehik, for appellants.

      Smith, Williams, Friday, Eldredge & Clark, by: Overton S. Anderson and Joseph E. Kilpatrick, for appellees and cross-appellants; Laser, Sharp, Haley, Young & Boswell and Rice & Ballon, for appellees.
   Frank Holt, Justice.

Appellants James DeVazier and his thirteen year old daughter, Debra, brought this action to recover damages for personal injuries suffered by Debra as a result of a large stack of sheetrock falling upon her legs. The father sought “out of pocket” expenses and Debra sought damages for pain, suffering and permanent injury. The jury found each appellee and appellant Debra 25% responsible for the alleged injuries. The jury awarded Debra’s father S3,200 for the expenses he had incurred and no damages to Debra. The trial court’s denial of appellants’ motion for a new trial “solely on the issue of damages sustained by her [Debra] as a result of the negligent injury which the jury has found that she has sustained by reasons of the” negligence of the appellees is the basis for this appeal.

The relief which appellants seek is not permissible. We have consistently refused to affirm a judgment on the issue of liability and allow a partial new trial or one limited only to the issue of damages. Clark v. Ark. Democrat Co., 242 Ark. 497, 413 S.W.2d 629 (1967); Manzo v. Boulet, 220 Ark. 106, 246 S.W.2d 126 (1952); and Krummen Motor Bus & Taxi Co. v. Mechanics’ Lbr. Co., 175 Ark. 750, 300 S.W. 389 (1927). See also 58 Am. Jur. 2d, New Trial, § 27. The rationale is that a verdict, the foundation of the judgment at law, is an entity which cannot be divided by the trial court. Therefore, the trial court was correct in denying appellants’ motion for a new trial.

Although we deem it unnecessary to discuss appellants’ other contentions for reversal, suffice it to say we have examined them and find no merit.

By cross-appeal, F & S Construction Company asserts that the trial court erred in refusing its motion for a directed verdict on the basis that, as a matter of law, Debra was a licensee as to it. We cannot agree. Appellee William Carpenter, a real estate agent since 1967, sells houses. In doing so, he shows a prospective buyer building plans as well as houses which are being built by F & S Construction Company pursuant to a “turn-key” contract between Carpenter and F & S. Carpenter has keys to these pre-sold houses and does not have to secure permission from F & S to show them during construction. Carpenter was showing Debra’s mother, a prospective purchaser, houses at her request. Debra was accompanying them. When they were inspecting one of the houses, which was under construction and pre-sold, a quantity of sheetrock stacked against a wall fell on Debra breaking a leg and ankle. It is F & S’ contention that Debra was on the premises occupied by it merely as a sightseer for her own purposes and F & S Construction Company did not stand to benefit from her presence in the house.

Prosser, Law of Torts, § 61 (4th Ed. 1971), states:

The leading case of Indermaur v. Dames laid down the rule that as to those who enter premises upon business which concerns the occupier, and upon this invitation express or implied, the latter is under affirmative duty to protect them, not only against dangers of which he knows, but also against those which with reasonable care he might discover.

In Restatement (Second) of Torts § 332 (1965), comment b at p. 176, invitation is defined as “. . . . conduct which justifies others in believing that the possessor desires them to enter the land. **** Any words or conduct of the possessor which lead or encourage the visitor to believe that his entry is desired may be sufficient for the invitation.” In the case at bar, F & S allowed Carpenter to have keys to houses which were under construction by it by contract with him and it was his practice to show the houses to customers when requested. Certainly, it must be said the jury could infer that showing the houses to prospective purchasers, as here, resulted in a financial benefit to both Carpenter and F & S. See Alfrey Heading Co. v. Nichols, 139 Ark. 462, 215 S.W. 712 (1919).

Cross-appellant F & S next asserts there was no substantial evidence of negligence by it. Therefore, the court erred in denying its motion for a directed verdict. In determining this issue on appeal, our well settled rule is we consider only that evidence and all reasonable inferences deducible therefrom which are most favorable to the appellee. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W.2d 689 (1935); and National Credit Corp. v. Ritchey, 254 Ark. 139, 491 S.W.2d 811 (1973). In the case at bar 80 panels of sheetrock were delivered to the house five days before the accident occurred. One panel is 4’ x 12’ x Vz” and weighs between 60 and 80 pounds. Approximately 18 of these were stacked vertically in the unfinished bedroom where Debra was injured. An employee and part owner of F & S testified that he had seen the sheetrock three or four times between the delivery date and five days later when the accident occurred. Appellants adduced evidence that the sheetrock was leaning against the wall at a very slight angle or “straight up.” The safe method of storing sheetrock, appellant’s expert witness testified, is to lay it horizontally on the floor. We hold there was substantial evidence, when viewed most favorably to the appellee, to support the jury’s finding that F & S was negligent.

By cross-appeal, Whit Davis Lumber Company asserts for reversal that the trial court erred in refusing to grant its motion for a directed verdict. We agree with this contention. The lumber company, pursuant to an order by F & S, delivered the sheetrock to the house where the injury occurred. It was stacked in a vertical position as was their custom and practice. The sheetrock, as previously indicated, had been stacked in this position for about five days preceding the accident. During this time, a part owner of the construction company had observed and inspected it on three or four separate occasions. It appears that the sheetrock was delivered and stacked as ordered.

Restatement (Second) of Torts § 384 states the following rule:

One who on behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous character of the structure or other condition while the work is in his charge. (Emphasis ours.)

Comment g of § 384 points out that liability does not attach for harm caused after control of the condition is terminated. In S. W. Bell Co. v. Travelers Ind., 252 Ark. 400, 479 S.W.2d 232 (1972), we reiterated the general rule:

.... where there is a practical acceptance by a proprietor upon completion of its contractor’s work thereupon the liability of the contractor as to third persons ceases and the responsibility ‘for maintaining or using [it] in its defective condition [is] shifted to the proprietor.’

To the same effect is Chesser v. King, 244 Ark. 1211, 428 S.W.2d 633 (1968). In the circumstances we hold that F & S Construction Company, which ordered the sheetrock, was in complete possession and control of it at the time of the alleged injury inasmuch as there was, to say the least, a “practical acceptance” by the construction company. Therefore, any liability of the lumber company had ceased and had shifted to the construction company.

Affirmed on direct appeal. Affirmed on cross-appeal as to F & S Construction Company and reversed and dismissed on cross-appeal as to Whit Davis Lumber Company.

Byrd, J., not participating.


author: LeRoy Autrey, Special Justice.

text:
    Sam WEEMS and Doyle OWEN v. John ANDERSON, Special Judge of 17th Judicial Circuit, Prairie County, Arkansas
    CR 74-114
    516 S.W. 2d 895
    Opinion delivered December 9, 1974
    [Rehearing denied January 20, 1975.]

      Reinberger, Eilbot, Smith & Staten, for petitioners.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for respondent.
   LeRoy Autrey, Special Justice.

On August 20, 1973, Sammy A. Weems, the prosecuting attorney for the 17th Judicial District, reported to Circuit Judge W. M. Lee of that District that the investigation of an alleged crime of arson in the burning of the home of Doyle Owen in Prairie County had implicated the prosecuting attorney and requested that the Court convene a grand jury to investigate the matter. This report by Weems was made just before the commencement of a hearing before the Circuit Court at the conclusion of which Weems was disbarred but allowed to continue in the office of prosecuting attorney.

On December 20, 1973, the Court appointed William F. Sherman, a lawyer residing in Pulaski County, as special prosecutor to conduct an investigation of the alleged arson with authorization to issue subpoenas, to appear before grand juries, to prosecute any persons indicted, and to serve with the full powers of a prosecuting attorney in the State of Arkansas. On motion submitted by Special Prosecutor Sherman and over the objection of Prosecuting Attorney Weems, the Circuit Court on March 6, 1974, ordered that Thomas Woolsey be required to give testimony pertaining to the alleged arson of the Owen home on the condition that no testimony or other information compelled under the order could be used against Woolsey in any criminal case pursuant to the provisions of Act 561 of 1973.

A special grand jury was empaneled by Circuit Judge Lee on March 13, 1973, and charged with the investigation of the alleged arson of the Owen home. Special Prosecutor Sherman appeared before the special grand jury and presented evidence including the testimony of Woolsey. The grand jury on March 15, 1974, issued an indictment charging Prosecuting Attorney Weems and Owen with arson and a second indictment charging Weems, Owen and Woolsey with conspiracy.

Weems first objected to the appointment of Sherman as special prosecutor on January 29, 1974, and Circuit Judge Lee on February 11, 1974, overruled the objection, basing the Court’s authority to appoint a special prosecutor under the circumstances of the case presented on three concepts, namely: “(1) by inference under Statute 24-108, (2) by agreement or consent of the elected prosecutor, (3) by inherent authority of his office . . . .”

After the indictments issued by the grand jury, Circuit Judge Lee on his own motion disqualified himself in this matter, and Judge John L. Anderson was assigned by this Court as a special judge for the trial of these cases. Thereafter, Weems and Owen filed formal motions and objections to the appointment of Sherman as special prosecuting attorney and these motions were overruled. This petition for writ of prohibition followed.

In support of the petition for a writ of prohibition, Weems and Owen make the following contentions:

(1) The circuit court does not possess any inherent authority to appoint a special prosecuting attorney to serve in place of a prosecuting attorney, a constitutional officer of the State.
(2) Section 24-108, Arkansas Statutes, enacted in 1838, does not provide for the appointment of a special prosecuting attorney until there has been an indictment of the prosecuting attorney.
(3) Section 24-108, Arkansas Statutes, is unconstitutional because (a) the special prosecuting attorney is to be paid only if he obtains a conviction, (b) this statute violates the doctrine of separation of powers, and (c) a constitutional officer can only be removed by impeachment or joint address as provided for in Article XV of the Arkansas Constitution.
(4) Weems did not agree to the appointment of Sherman as special prosecuting attorney and, furthermore, could not contractually convey his office to another person.
(5) Section 24-117, Arkansas Statutes, providing that the court can appoint an attorney at law to prosecute for the State when the regular prosecuting attorney has neglected or failed for any reason to attend to the courts of the circuit, is wholly inapplicable to this situation.
(6) Even if the circuit court has authority to appoint a special prosecuting attorney, such attorney must be a resident of the district and Sherman is not a resident of the 17th Judicial District.
(7) A special prosecuting attorney cannot utilize the provisions of Act 561 of 1973 to grant immunity to a witness since this authority is granted only to the prosecuting attorney.
(8) Even if the Court has authority to appoint a special prosecuting attorney to handle the case against Prosecuting Attorney Weems, there is no authority for the appointment of a special prosecuting attorney to prosecute Owen, a private citizen.

Article 7 of the Arkansas Constitution entitled “Judicial Department” provides in Section 24 for the election of a prosecuting attorney for each judicial circuit. This Court held in Smith v. Page, 192 Ark. 342, 91 SW2d 281 (1936), that a prosecuting attorney is a constitutional state officer acting in a quasi judicial capacity. There is no constitutional, statutory or case law authority supporting the Petitioners’ claim that the prosecuting attorney is a member of the Executive Department of the State. In fact, Article 6, Section 1, of the Constitution as amended by Amendment 37, Section 1, specifically provides that the officers of the Executive Department are Governor, Lieutenant Governor, Secretary of State, Treasurer, Auditor, Attorney General and Commissioner of State Lands.

Article 15, Section 1, of the Arkansas Constitution provides that all State officers, judges and prosecuting attorneys shall be liable to impeachment and removal from office for high crimes and misdemeanors and gross misconduct in office, and that “an impeachment whether successful or not, shall be no bar to an indictment”. In Speer v. Wood, 128 Ark. 183, 193 SW 785 (1917), this Court held that a prosecuting attorney who had been indicted could not, under the State Constitution, be suspended or removed from his office even though an amended statute included the prosecuting attorney with county and city officials who could be suspended by the Circuit Court upon indictment. However, the prosecuting attorney in that case was subsequently prosecuted on the grand jury indictment by a special prosecutor. Speer v. State, 130 Ark. 457, 198 SW 113 (1917).

Since prosecuting attorneys and other State officials may be indicted and tried for alleged criminal activities whether there is an impeachment or not, there must be some way within the framework of our State’s legal system for the prosecuting attorney to be indicted and tried even when the alleged crime occurs within the same judicial district in which he is elected the prosecuting attorney. Section 24-108, Arkansas Statutes, provides that it is the duty of the Court to appoint an attorney to “conduct the prosecution” when there is an indictment of the prosecuting attorney, but this statute makes no provision for the appointment of an attorney to assist the grand jury in the investigation of the alleged crime or in the drafting of an indictment. Section 24-117, Arkansas Statutes, provides that if a prosecuting attorney shall neglect or fail to attend to the courts of the circuit and to prosecute as required by law, it is the duty of the court to appoint an attorney to “prosecute for the State during the term”. A literal reading of the statutory provision expresses an intent that a special prosecutor shall be appointed only when the prosecuting attorney both fails to attend court and to prosecute as required by law. Here again, the statutory provisions fall short of providing authority for the circuit court to appoint a special prosecuting attorney to assist the grand jury when the elected prosecuting attorney is allegedly involved in the commission of a crime.

The absence of specific statutory authority for the appointment of a special prosecuting attorney under the circumstances of this case does not mean that the court is without authority to do what justice, reason and common sense dictate must be done. In other jurisdictions where there was the same lack of statutory authority for the appointment of a special prosecuting attorney under circumstances such as those here presented, the courts have held that there is an inherent power in the courts to make such an appointment. We hold that the Arkansas Circuit Courts also have such inherent power.

In State, ex rel. Thomas, Pros. Atty. v. Gessner, et al, Judges, 123 Ohio St. 474, 478 (1931), the judges of Mahoning County, Ohio, without notice to the prosecuting attorney, empaneled a special grand jury to investigate the alleged criminal conduct of the prosecuting attorney and appointed three members of the Ohio Bar to serve as special prosecutors. The Ohio prosecuting attorney in his petition for writ of prohibition raised many of the same objections here raised by the prosecuting attorney. In response to these objections, the Ohio Supreme Court said:

“It must be borne in mind that this proceeding is not one for the removal of the prosecuting attorney from office, or to appoint another prosecuting attorney in his place; neither is it an effort to appoint an assistant to the prosecuting attorney. The appointment of an assistant implies that such assistant would be under the direction of the prosecuting attorney himself. If there is any virtue in the proceedings which have resulted in the selection of counsel to aid and advise the grand jury, that virtue must be found in the selection of counsel who would be entirely independent of any influence on the part of the prosecuting attorney himself.
“There being no definite specific statutory provision for a finding of the temporary disqualification of the prosecuting attorney, it only remains to inquire whether the court possesses inherent power in the premises.
“It is not doubted that the court of common pleas has the power to call a grand jury into session and to instruct it. In the opinion of this court, there is no question of the right of the court to appoint counsel to aid and advise the grand jury concerning the matters presented to it, provided such counsel absent themselves from the jury room during the deliberations and the taking of the vote upon questions being determined by it.”

For other authorities upholding the inherent authority of the court to appoint a special prosecutor when the State’s attorney is under investigation, see Williams v. State, 188 Ind. 283. 123 NE 209 (1919), State v. Jones, 306 Mo. 437, 268 SW 83 (1924), 31 ALR 3rd 953, 986-988 (1970) and 65 Yale Law Journal 209, 216, 217.

In Commonwealth v. McHale, 97 Pa. 397, 406 (1881), the Supreme Court of Pennsylvania held that an act of 1866 enabling the court to appoint a special district attorney for the conduct of a case was not voided by the passage of a new constitution in 1874 making the district attorney a constitutional officer. In reversing the lower court which had quashed the indictments on the grounds that they were not signed by the district attorney, the Court said:

It was urged, however, that the indictments were properly quashed because not signed by the district attorney. They were signed by Guy E. Farquhar, Esq., who was specially appointed by the court to try these cases, under the Act of 12th March 1866, Pamph. L. 85. The appointment appears to have been regularly made in accordance with the provisions of said act, and was eminently proper, as the district attorney was a candidate at the general election at which the alleged frauds were committed, and which frauds, it is stated, increased his vote. It would therefore have been a breach of professional and official propriety for him to have acted as district attorney in these cases. But it is said the appointment was illegal because the Constitution adopted since the act of 1866 was passed, makes the district attorney a constitutional officer, and as such he cannot be stripped of his powers by the legislature. There is little force in this suggestion. While the legislature may not abolish the office, it can control the officer. They can regulate the performance of his duties, and punish him for misconduct, as in the case of other officers. And where he neglects or refuses to act, or where, from the circumstances of a given case, it is improper and indelicate for him to act, it is competent for the legislature to afford a remedy. This is all that the Act of 1866 does, and we think its provisions are not obnoxious to any constitutional provision.” (Emphasis Supplied).

The adoption by the State of Arkansas of the Constitution of 1874 making the prosecuting attorney a constitutional officer did not void the provisions of Section 24-108, Arkansas Statutes, passed in 1838 which provides for the appointment of a special prosecutor to prosecute the prosecuting attorney. Section 24-117, Arkansas Statutes, which provides for the court appointment of a special prosecuting attorney under certain circumstances was passed by the 1875 legislature. In Speer v. Wood, Supra, this court noted that the act under discussion was passed by the Legislature of 1877, which assembled less than three years after the adoption of the 1874 Constitution and contained members of the Constitutional Convention. The Legislature of 1875, no doubt, also contained members of the Constitutional Convention and must have intended that making the prosecuting attorney a constitutional officer did not prevent the appointment of a special prosecutor when the prosecuting attorney fails to attend court and to prosecute according to law.

The Petitioners argue that Section 24-108, Arkansas Statutes, is unconstitutional because it provides that if the prosecuting attorney is convicted, the attorney conducting the prosecution “shall be entitled to receive the sum of Fifty Dollars ($50.00) out of the salary” of the prosecuting attorney. In support of this proposition, the Petitioners rely chiefly on the decision of the U. S. Supreme Court in Ward v. Village of Monroeville, Ohio, 409 US 57, 93 S. Ct. 80 (1972), in which the court held that it was a denial of due process to subject a person’s liberty or property to the judgment of a court, the judge of which could benefit from the payment of a fine by the defendant. The case here before the Court does not involve a judge, but a prosecuting attorney, and no authority has been cited from any jurisdiction supporting the contention that a prosecuting attorney may not be paid a fee from the fine imposed upon a defendant whom he has successfully prosecuted. However, this Court does not pass on the broad question of whether such an arrangement for the payment of the prosecuting attorney may or may not be violative of due process. While the amount here involved is so small as to be inconsequential when compared to the overall expense of prosecuting the prosecutor, we note that the fee portion of the statute is severable from the remainder; and should it later be held unconstitutional that portion of the statute can easily be severed without affecting the remainder. Consequently, if error, it would be harmless error.

The Petitioners’ contention that the special prosecutor must be a resident of the judicial district in which he is appointed to serve is without merit. The two specific provisions for the appointment of a special prosecuting attorney are found in Sections 24-108 and 24-117, Arkansas Statutes. These sections only require that the special prosecutor be an attorney at law. When the Court, in the exercise of its inherent power under the circumstances presented by this case, appoints a special prosecuting attorney, there does not appear to be any reason why the Court should be limited to the appointment of an attorney who is a resident of the judicial district. It is likely that attorneys who are members of the same local bar as the prosecuting attorney may seek to avoid appointment as a special prosecuting attorney under the circumstances here presented, and the Court may, in the exercise of reasonable discretion, select an attorney from some other area of the State to so serve. Article 7, Section 24, of the Arkansas Constitution provides for the election of a prosecuting attorney by qualified electors of each circuit and quite logically provides that the person, learned in law, who is elected shall be a resident of the circuit from which he is elected. This constitutional provision clearly has no application to the appointment of a special prosecutor.

Also without merit is the Petitioners’ contention that a special prosecutor may not act as prosecuting attorney under the provisions of Act 561 of 1973 in which the prosecuting attorney is authorized to request an order of the Court to require that a person testify upon being granted immunity. A special prosecutor does not displace the prosecuting attorney from his constitutional office, but in order for him to be effective in the investigation and prosecution of the matters for which he has been appointed, he must have the right to proceed in the same manner as the prosecuting attorney. Section 43-919, Arkansas Statutes, provides that “no person except the prosecuting attorney, and the witnesses under examination, are permitted to be present while the grand jury are examining a charge”. In Bennett v. State, 62 Ark. 516, 36 SW 947 (1896), an attorney acting for the prosecuting attorney went into the grand jury room and examined witnesses. In finding no violation of the statute, we stressed the fact that the attorney acted in the prosecutor’s stead. Other cases to the same effect are Tiner v. State, 109 Ark. 138, 158 SW 1087 (1913), and Coon v. State, 109 Ark. 346, 160 SW 226 (1913).

Doyle Owen was indicted with Weems on the charge of arson and with Weems and Woolsey on the charge of conspiracy. Obviously, Weems and any deputy prosecuting attorney appointed by him are disqualified in the prosecution of the case against Owen and the case against Woolsey. The inherent power of the Court to appoint a special prosecuting attorney to investigate a charge, to assist the grand jury and to prosecute the prosecuting attorney, surely includes the right to appoint a special prosecutor to investigate, assist the grand jury, and prosecute a person charged as a co-conspirator with the prosecuting attorney.

The petition for writ of prohibition is denied. For good cause shown, an immediate mandate is ordered.

Holt, J., disqualified.


author: George Rose Smith, Justice.

text:
    Joe TULL v. BENTON STATE BANK, Administrator
    74-213
    516 S.W. 2d 583
    Opinion delivered December 16, 1974

      John W. Barley, for appellant.

      Fred E. Briner, for appellee.
   George Rose Smith, Justice.

The issue in this will contest is the validity of a will which obviously was extensively altered — in fact, almost completely rewritten — by the testatrix after its original execution and attestation. The probate judge sustained the validity of the instrument, on the ground that the testatrix intended for it to be her will. The appellant, the testatrix’s brother, contested the will and now contends, correctly, that the altered instrument must be rejected, because it was not re-executed and re-attested in its altered form.

The instrument consists of two pages. The first page, on white paper, is very badly typed. It contains seven numbered paragraphs. The last six of those paragraphs make six different bequests or devises and constitute all the dispositive provisions in the will. Paragraph “Seventh” is the residuary clause, leaving the testatrix’s real property and certain personal property “to my Sister, Rena Glass.”

The second page, on blue paper, is neatly typed. It contains the final paragraph, which reads: “Fifth: I hereby appoint my sister, Rena Glass, executrix of this my last will and testament on this 25th day of July, 1964.” After that come the signature of the testatrix, Myrtice Westbrook, the attestation clause, and the signatures of two attesting witnesses.

It is conclusively shown by the testimony, as well as by the will itself, that page one was retyped (presumably by the testatrix) and substituted for the original page one, which apparently was destroyed. In addition to the variances that we have mentioned — the differences in the color of the paper, in the typing, and in the paragraph numbers — page one refers to the testatrix’s sister as Rena Glass, although she did not marry Mr. Glass until some 18 months after the date of the will, July 25, 1964. (On page two Rena’s surname at the time, Andrews, was obviously erased, and the name “Glass” typed over the erasure.)

The trial judge based his decision upholding the will upon his finding that it was the testatrix herself who retyped and substituted the first page of the will. We have no quarrel with that finding of fact, but it does not serve to validate the altered will. Here the testatrix, in effect, revoked all the dis-positive provisions in her original will and substituted those appearing on the rewritten first page of the instrument offered for probate. In those circumstances a re-execution and re-attestation of the will were essential to its validity. Walpole v. Lewis, 254 Ark. 89, 492 S.W. 2d 410 (1973); Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873 (1925). Hence the altered instrument cannot be probated as the testatrix’s will.

Reversed.


text:
    John R. DEGLER v. STATE of Arkansas
    CR 74-109
    517 S.W. 2d 515
    Opinion delivered December 16, 1974
    [As modified January 27, 1975.]

      Gene Worsham, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Deputy, for appellee.
   George Rose Smith, Justice.

The appellant was charged with felony murder, in that he killed Curtis Turner during the perpetration of larceny. The jury returned a verdict of guilty and imposed a life sentence. Four points for reversal are argued.

First, it is contended that when this case was tried in the court below, a homicide committed in the perpetration of larceny no longer constituted a felony murder. Upon that premise it is arged that Degler could not lawfully be convicted of any offense greater than second-degree murder.

We cannot sustain that contention. This homicide occurred on June 12, 1973. Larceny was then included in the definition of felony murder. Ark. Stat. Ann. § 41-2205 (Repl. 1964). But larceny was not included in a similar definition contained in Act 438 of 1973. Ark. Stat. Ann. § 41-4702 (A) (Supp. 1973). Even though Act 438, absent an emergency clause, did not take effect until more than a month after the homicide now in question, the appellant insists that Act 438 was merely procedural and thus inapplicable to cases tried after its effective date.

There are two answers to the appellant’s argument. First, the purpose of Act 438 was to reinstate capital punishment for certain crimes only. Although the Act dropped larceny from the definition of capital offenses, the older definition appears to have been retained as a “life felony” by § 4 of Act 438. § 41-4704. Secondly, a change in the definition of murder is substantive rather than procedural. In fact, we can think of no provision in the criminal law that is more plainly substantive than the definition of the crime. Hence the older definition would be controlling in the trial of the case even if it had been repealed after the commission of the homicide. Ark. Stat. Ann. § 1-103 (Repl. 1956); Clark v. State, 246 Ark. 876, 440 S.W. 2d 205 (1969).

Secondly, it is contended that the trial court should have excluded Degler’s confession and the State’s allied proof that Degler later showed the officers where he had thrown the murder weapon and the stolen property. It is argued that the officers arrested Degler without probable cause and that therefore the confession and accompanying proof were inadmissible. Davis v. Mississippi, 394 U.S. 721 (1969); Beck v. Ohio, 379 U.S. 89 (1964). In the Beck case the court said that the validity of an arrest without a warrant, as here, depends upon whether the officers had probable cause to make it — “whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.”

Upon this point for reversal the appellant’s recitation of the pertinent facts is so greatly abbreviated that we must discuss the proof in some detail. The homicide took place at what is referred to as the old State Dairy Farm house, in a rural part of Pulaski county. The house was casually frequented by a number of young people; “all the kids” that wanted to come there were welcome. (Degler was 22 at the time of the crime.) Two of the group had rented the house, but they were staying in Little Rock at the particular time in question.

On June 11, 1973, five young persons were at the house during the day. Charles Martin and Shirley Mooser were living there and had a key to the house. Degler, David Williamson, and Curtis Vanderpool were there during a substantial part of the day. Vanderpool left before the others did. Degler and Williamson, who had been drinking beer together for several hours, left at about 8:30 p.m., leaving Degler’s distinctive yellow car still at the house. When Martin and Shirley also departed at about 9:00 p.m., they left the house unoccupied and locked. The decedent, Curtis Turner, had been at the house for about an hour on the preceding day, but he does not appear to have been there on the day in question.

Martin and Shirley returned at about 30 minutes after midnight. Curtis Turner’s car was there, but Degler’s yellow car was gone. Turner’s dead body was lying on the front porch. Martin found that “a lot of stereo equipment and television and stuff” that had been there earlier was missing. Martin telephoned the sheriff’s office to report the homicide. Two deputies — Harold Munn and another — came out to investigate. Munn also questioned several young people at the sheriff’s office at three or four o’clock in the morning.

At about 9:30 that morning Officer Munn arrested Degler at his trailer home in North Little Rock. Munn, of course, had learned details of the homicide at the scene. He knew that Degler and Williamson were very good friends and traveled in each other’s company. He had learned that one of them had a .22-caliber pistol. The police department had determined that a small-caliber weapon had been used in the killing. Munn knew that Degler’s yellow car had been left on the premises before the homicide, and since the officer participated in the investigation at the house, it is reasonable to infer that he knew that the car was not there later on.

We are of the opinion that the trial court, drawing reasonable inferences from the testimony as a whole, was justified in finding that there was probable cause for the arrest. This case is quite unlike Davis v. Mississippi, supra, cited by the appellant. In Davis the police, acting upon information that a rape had been committed by a Negro youth, picked up from 40 to 50 such youths for questioning. In the case at bar the information obtained by the officers implicated only Degler and Williamson. Those two young men had been at the Dairy Farm house during much of the day, had apparently been armed with a .22 pistol, had left Degler’s car at the house when they departed together at about 8:30 p.m., and had evidently returned for it at some time before the homicide was discovered at 12:30 a.m. There is no indication in the record that the officers’ investigation turned up facts tending to incriminate anyone other than Degler and Williamson. Moreover, this was not a case in which the officers could gather more data by obtaining a search warrant for the suspects’ .22-caliber pistol, so that its test-fired bullets could be compared ballistically with those found in the victim’s body. That procedure would not have been superior to an arrest in the officers’ search for the truth, because the requirement of probable cause applies to an application for a search warrant as well as to an arrest. The officers acted reasonably upon the available facts; we are unwilling to say that the trial court was wrong in its conclusion that probable cause for the arrest existed.

Thirdly, the appellant contends that his confession should have been excluded as having been involuntarily made. In passing upon this contention we are required to review the evidence and make an independent determination of the ultimate issue of voluntariness. Davis v. North Carolina, 384 U.S. 737 (1966). We have recognized that duty ever since our decision in Harris v. State, 244 Ark. 314, 425 S.W. 2d 293 (1968), but we have not yet defined the standard to be followed in reaching our determination. See the concurring opinion in Vault v. State, 256 Ark. 343, 507 S.W. 2d 111 (1974). That omission necessarily makes it difficult for opposing counsel to argue the point on appeal. We now set the issue at rest by stating explicitly that in each case we will make an independent determination based upon the totality of the circumstances and that the trial judge’s finding of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence, which we take to be the same standard of review as the “clearly erroneous” rule followed by the federal courts. United States v. U.S. Gypsum Co., 333 U.S. 364 (1948); Maple Island Farm v. Bitterling, 209 F. 2d 867 (8th Cir. 1954).

Degler was arrested at about 9:30 a.m., was warned of his rights, and signed a “waiver of rights”, which recited the time as 9:40 a.m. At 10:10 Degler signed his first statement, in which he denied any part in the crime. It does not appear that his interrogation continued after his signing that statement.

The second suspect, Williamson, was arrested at about two o’clock. Williamson, after having been questioned, signed a statement (at a recited time of 2:10) in which he accused Degler of having fired the fatal shots. The officers then showed Williamson’s statement to Degler, who read it and announced his desire to change his own statement. Degler then signed a statement (at a recited time of 3:35 p.m.) in which he said that he and Williamson had gone back to the house, had found nobody there, and had decided to take the stereo and t.v. set. Degler was carrying Williamson’s gun. As Degler came out of the house “this man jumped up suddenly.” Degler said that he was scared and fired three times. He then “took the player and t.v. to a spot along the road and ditched them.” After signing the second statement Degler guided the officers to the place where the stolen property and murder weapon were recovered.

The record falls decidedly short of showing that the trial court’s finding of voluntariness is clearly against the preponderance of the evidence. Although Degler was detained for some five and a half hours, he does not appear to have been subjected to interrogation during most of that time. Degler makes no assertion that he was mistreated. He does say, and the officers in effect admit, that he was told that he would feel better if he told the truth and got it off his chest. Degler stated, however, that the officers did not say how it would help him. Therre was certainly no offer of leniency. During the interrogation Degler was shown a Polaroid photograph of the victim’s body, as it was found on the front porch, but there appears to be nothing particularly gruesome or inflammatory about the photograph (which is to be found in the record filed in Williamson’s appeal from his conviction). It is also argued that the officers should not have shown Degler the statement that Williamson had made, but we do not see that Degler’s constitutional rights were thereby violated. In this connection the appellant cites People v. Johnson, 75 Cal. Rptr. 401, 450 P. 2d 865 (1969), but there the court found that the codefendant’s statement had been unlawfully obtained, so that the fruit-of-the-poisonous-tree doc-tine was controlling. Here theré is no similar proof that the codefendant’s proof was unlawfully obtained. We find no error in the trial judge’s admission of the confession into evidence.

Finally, the appellant, who had signed a confession on June 12, complains that the trial court refused to allow him to show by the testimony of cellmates in the Pulaski County jail that more than two months later Williamson, who was also in the jail cell, made threats against the appellant and his family in order to force the appellant to take the blame for the crime. We agree with the trial court’s conclusion that threats made more than two months after the date of the confession had no bearing upon its voluntariness.

Affirmed.