text:
    Clement E. HANNUM and Edna M. HANNUM, Husband and Wife v. BELLA VISTA VILLAGE PROPERTY OWNERS ASSOCIATION et al
    80-270
    611 S.W. 2d 736
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981

      J. L. Hendren, for appellants.

      Little, McCollum & Mixon and Godo & Dossey, for appellees.
   Robert H. Dudley, Justice.

The appellants are property owners in Bella Vista Village. The appellees are the Bella Vista Property Owners Association and the members of its board of directors, who control the use of the common properties and facilities of the village, such as the country club, golf courses, tennis courts and lakes. The appellants filed this suit contending that appellees have prevented them from leasing to others an easement of enjoyment in the common properties and seeking a judgment declaring they can validly lease these interests. The lower court held that the easement in the common properties can only be used by the record owner of a fee interest in a lot or living unit or by one purchasing under a contract with the developers. We affirm.

Article VIII, Section 1, of the Declaration and Protective Covenants of the Association determines who has the right of enjoyment to the common properties:

Members’ and Associate Members’ Easement of Enjoyment Subject to the provisions of Article IV hereof and Section 3 of this Article VIII, every member and associate member, so long as the associate membership shall continue, shall have a right and easement of enjoyment in and to the Common Properties and such easement shall be appurtenant to and shall pass with the title to every Lot or Living Unit.

Other provisions describe a member as the developer or a record owner of a fee interest, and an associate member as one purchasing under a contract with the developer.

A lessee of a vacant lot, home or living unit is the holder of a leasehold interest only and is neither a developer nor the record owner of a fee interest nor a purchaser under contract with the developer. A lease will not transfer the right and easement of enjoyment to the common properties as provided by the above cited section of the Declaration and Protective Covenants.

The paragraph quoted above recites that the right of a member of the Association to use the common facilities is an “easement of enjoyment” and is “appurtenant to and shall pass with the title to every lot.” Appellants contend that this language demonstrates that the easement was not intended to be a personal right of the fee owner, but rather is to be treated as an appurtenant easement. From that we are asked to deduce that easements cannot be separated from the land, that one entitled to rightful possession may use an appurtenance thereto, that when land is leased, appurtenances go with it, and therefore the owner can lease the use of the common properties.

The appellants’ contentions are supported by authorities dealing with a right-of-way easement for ingress across an adjoining lot. Rules concerning that type of appurtenant easements are not applicable. Here we are dealing with the right of a member or associate member to use a golf course, a tennis court, a swimming pool, a lake, a restaurant or a club house. This right is defined in the Declaration as being determined by title.

No restraint on alienation was created. Appellants may lease their lots or house to anyone of their choice. That lease, however, will not pass the right of entry to the common properties.

Affirmed.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Alfred QUARLES and Florence QUARLES, his wife v. Larry Thomas FRENCH and Patricia Quarles FRENCH, his wife, In the Matter of the Adoption of Tony Dewayne FRENCH and Charles Waylon FRENCH, minors
    80-226
    611 S.W. 2d 757
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981

      Gene E. McKissic, for appellants.

      Thurman Ragar, Jr., for appellees.
   Steele Hays, Justice.

The issue raised by this appeal is whether grandparents who have been granted visitation rights pursuant to Ark. Stat. Ann. § 57-135 (Supp. 1979) have standing to intervene in proceedings for the adoption of their grandchildren, children of their deceased son. The trial court held that they did not. We have concluded that they do have limited standing to be heard and reverse.

The appellants, Alfred and Florence Quarles, are the natural grandparents of Tony Dewayne Quarles (French) and Charles Waylon Quarles (French), children of Patricia Quarles French and Jeffery Quarles, whose death occurred after he and Patricia had divorced. The appellants were awarded full custody of the two boys for a period of some nine months under an order of the chancery court. Custody was returned to Patricia Quarles French in July, 1977, but the order granted weekend visitation rights to the appellants.

Patricia Quarles later married Larry Thomas French and in August 1979 they filed a petition for the adoption of the two boys by Mr. French. Notice was given to appellants who responded with a motion challenging the fitness of the appellees and relying on the visitation rights granted by the chancery court. Appellants’ motion was treated by the probate court as a motion to intervene, which was denied and a final decree of adoption was entered. On appeal, appellants urge that they were entitled to notice of the adoption proceedings, were entitled to intervene and further, that their right of visitation has been abolished without the opportunity to be heard in violation of the Fourteenth Amendment guarantee of due process, also raised below. Without adopting the exact arguments of the appellants, we agree that in the attenuated circumstances of this case the appellants have not been afforded the opportunity to be heard due them under the Fourteenth Amendment.

First, it is evident that under the Arkansas Revised Uniform Adoption Act the appellants are not “persons required to consent to adoption.” Ark. Stat. Ann. § 56-206 (Supp. 1979), and our holding is not intended to alter this provision. Since their consent is not required, the question remains whether the appellants otherwise have standing to intervene in the proceeding. More precisely, do the visitation rights previously granted them by the chancery court confer a sufficient interest in the adoption proceeding that appellants have standing to intervene? We think they do. It has been held at least twice in this jurisdiction that grandparents standing in loco parentis have a sufficient interest in the adoption of natural grandchildren to entitle them to intervene. Appellants have not only stood in loco parentis to these children, but have the added element of court ordered visitation rights. Cotton v. Hamblin, 234 Ark. 109, 350 S.W. 2d 612 (1961); Nelson v. Shelly, 268 Ark. 760, 600 S.W. 2d 411 (Ark. App. 1980).

At common law, a grandparent could not maintain an action for visitation rights to a grandchild except as a party to a custody proceeding. See, Veazey v. Stewart, 251 Ark. 334, 472 S.W. 2d 102 (1971). Cf. Parks v. Crowley, 221 Ark. 340, 253 S.W. 2d 561 (1952). Visitation rights are exclusively within the jurisdiction of the chancery courts. Ark. Stat. Ann. § 57-135 (Supp. 1979). But in this case, unlike Veazey, the appellants were parties to the earlier custody proceeding and have specific visitation rights granted by the chancery court. However, the decree of adoption, if granted, will effectively extinguish the visitation rights, since adoption under Ark. Stat. Ann. § 56-215 (a) (1) terminates the relational status between adopted individuals and their relatives, which is the legal foundation for the visitation rights granted to grandparents under § 57-135. This was the effect of our decision in Poe v. Case, 263 Ark. 488, 565 S.W. 2d 612 (1978).

In practical terms, we are faced with a situation in which the rights granted by one court are extinguished by another court without affording the parties holding those rights an opportunity to be heard. We believe that such a result is inconsistent with due process, which, at the very minimum, requires a reasonable opportunity to be heard. Armstrong v. Manzo, 380 U.S 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). It follows that appellants are entitled to intervene as a matter of right, pursuant to Rule 24(aX2) of the Rules of Civil Procedure. We do not reach the appellants’ argument that they were constitutionally entitled to receive notice of the adoption proceeding, since they were, in fact, given timely notice.

This decision is restricted to the narrow principle that grandparents who have been granted visitation pursuant to Ark. Stat. Ann. § 57-135 have a sufficient interest in adoption proceedings to entitle them to intervene for the limited purpose of offering such evidence as may be relevant to the focal issue, i.e., whether the proposed adoption is in the best interest of the children. Caples v. Wages, 219 Ark. 252, 241 S.W. 2d 111 (1951); Cotton v. Hamblin, supra. In such cases, the court will weigh, among other considerations, the benefits flowing to the children from the granting of the adoption, as opposed to disadvantages which may result from the severing of ties between the grandparents and the grandchildren, as the two are incompatible under our law, unless consensual. If the court resolves the issue in favor of adoption, of course, appellants’ legal right of visitation is automatically extinguished. Poe v. Case, supra. If not, that right remains subject to the jurisdiction of the chancery court.

Since the court below never reached the merits of the issue here defined, we must reverse and remand this case for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Hickman, J., dissents.

He would affirm for failure to comply with Rule 9 (e).


text:
    Dorothy L. LOWERY, et al. v. Larry JONES, Executor, et al
    80-267
    611 S.W. 2d 759
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981

      Laws & Swain, P.A., by: William S. Swain, for appellants.

      Little, McCollum & Mixon, by: David George, for appellees.
   Steele Hays, Justice.

The crux of this appeal is whether a testamentary bequest to a charitable institution should fail for vagueness and hence pass to the appellants, heirs at law of the decedent. The will of Robert P. Frazier consists entirely of bequests for charitable purposes, including the following disputed bequest:

Fifteen percent (15%) to Shriner’s Hospital for Crippled Children, Little Rock, Arkansas, to be used at the discretion of said hospital.

The executor petitioned the probate court to construe the provision as meaning the “Shriners Hospital for Crippled Children, a National Organization,” there being no “Shriners Hospital for Crippled Children” located in Little Rock, presently or at the time the will was executed. The appellants, seven brothers and sisters of decedent, responded that the intended beneficiary could not be determined with certainty, asking that this portion of the estate go to them as heirs. The court granted the petition of the executor, and construed the provision as meaning the “Shriners Hospital for Crippled Children, a National Organization,” and appellants allege error. We agree entirely with the interpretation of the court below and, therefore, affirm.

Under Rule 52 of the Arkansas Rules of Civil Procedure, “[findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence) ----” See also, Greenwood v. Wilson, 267 Ark. 68, 588 S.W. 2d 701 (1979) and Hiler v. Cude, 248 Ark. 1065, 455 S.W. 2d 891 (1970).

As early as McDonald v. Shaw, 81 Ark. 235, 98 S.W. 952 (1906), this court stated that in interpreting provisions of a will:

It is an elementary rule of construction that a bequest or devise will not fail because of a mere inaccuracy in the designation of the beneficiary, where the meaning of the testator can be gathered with reasonable certainty from the instrument itself, or where the identity of the object of his bounty can be shown by extrinsic evidence and such evidence is always admissible for the purpose of identifying the beneficiary, where there is uncertainty or ambiguity in the designation. This rule applies to corporations as well as to those taking for their own benefit.
McDonald, at 240.

See, Lytle v. Zebold, 227 Ark. 431, 299 S.W. 2d 74 (1957) and Tullis v. Minchew, 239 Ark. 222, 388 S.W. 2d 393 (1965).

It should be noted at the outset that the effect of the various provisions of the will in the present case devises the entire estate to some five charities. Three of the named beneficiaries, besides the bequest at issue, are to the Masonic Building Corporation, Knights Templar Inc. Eye Foundation and to the Order of the Eastern Star, all of which are organizationally associated with the Shriners. There was testimony that Mr. Frazier was an active Mason and Shriner. There was also testimony that a person wishing to make a donation or bequest to the “Shriners Hospital for Crippled Children” would do so through the Scimitar Shrine Temple in Little Rock. And testimony to the effect that a child seeking care in a Shriners hospital would be processed through the Temple in Little Rock. There was documentary evidence in the form of a booklet published by the Shrine Temple, bearing the Little Rock street address and Post Office Box of the Temple, containing prominent references to Shriners Hospital for Crippled Children and information regarding the hospitals. On the basis of the evidence, the court held that the bequest to “Shriners Hospital for Crippled Children, Little Rock, Arkansas,” should in fact be read as “Shriners Hospital for Crippled Children, a National Organization.” We cannot say that such a deicion is clearly erroneous. Greenwood and Hiler, above. On the contrary, we think it was eminently correct.

This holding is sustainable for another reason — the application of the cy pres doctrine. While the court below did not expressly rely on the doctrine, it effectively applied it, as it should have. Judicial cy pres, as opposed to prerogative cy pres, has long been recognized and applied in Arkansas. Hicks Memorial Christian Ass’n v. Locke, 178 Ark. 892, 12 S.W. 2d 866 (1929); Trevathan v. Ringgold-Noland Foundation, 241 Ark. 758, 410 S.W. 2d 132 (1967); The State National Bank of Texarkana v. Bann, 202 Ark. 850, 153 S.W. 2d 158 (1941); McCarroll v. Grand Lodge, 154 Ark. 376, 234 S.W. 870 (1922).

The bulk of the cases applying cy pres involve charitable trusts, rather than bequests, as here, and there is some authority that the doctrine is limited to charitable trusts. But the growing weight of authority, and better reasoned, is that the doctrine of cy pres is equally applicable to charitable bequests and devises. Scott on Trusts, Vol. IV, #348, #399; Bogert, 2d Edition, Trusts and Trustees, Vol. 2A, #431; Miller v. Mercantile-Safe Deposit and Trust Co. (App. Md. 1961) 168 A2 184. We can see no reason why the logic of cy pres, which was conceived as a method of achieving the ultimate aim of the donor “as nearly as possible” where his expressed intent for some reason became unattainable, is not equally sound where the bequest is outright rather than in trust, and this view is consistent with some of the dicta of our own decisions. Fordyce v. Woman’s Christian Naf'l Library Assn., 79 Ark. 550, 96 S.W. 155 (1906); Bossen v. Woman’s Christian National Library Association, 216 Ark. 334, 225 S.W. 2d 336 (1949).

In Bletsch v. Barth, 130 N.W. 2d 275 (Wisc. 1964), cited by both sides, the Supreme Court of Wisconsin held the doctrine of judicial cy pres applicable to a gift to charity even though not expressly in trust, notwithstanding a number of earlier Wisconsin decisions repudiating the doctrine altogether. The court stated:

While most of the descriptions of cy pres confine its operation to charitable “trusts,” there is no sound reason for the requirement that there be a formal trust, as such. In our opinion, it is sufficient if there is a bequest to a charity. In a sense, it can perhaps be said that a charity always receives the gift in trust for its purposes.

The facts in Bletsch are similar in many respects to this case. The bequest in Bletsch was to the “Masonic Home for Crippled Children of the State of Illinois,” which was nonexistent. The court held that the “Shriners’ Hospital for Crippled Children;” in Chicago closely reflected the charitable purpose of the testator and should receive the bequest in preference to the heirs at law.

For the reasons stated, we affirm the probate court.


author: Per Curiam. John I. Purtle, Justice,

text:
    Milton W. AINGS v. Virginia Lee GIBSON
    80-269
    613 S.W. 2d 87
    Supreme Court of Arkansas
    Opinion delivered February 23, 1981
    [Rehearing denied April 13, 1981]

      Lookadoo, Gooch & Ashby and Lane, Muse, Arman & Pullen, by: Richard S. Muse, for appellant.

      Clark & Miller, Ltd., by. Michael R. Jones, for appellee.
   Per Curiam.

Our Rule 9 (b) provides that a statement of the case should be made at the beginning of the abstract. The statement should ordinarily not be more than two pages in length.

Our Rule 9 (d) provides that appellant’s abstract of the record should consist of an impartial condensation of such material parts of the record as are necessary to an understanding of all questions presented to this court for decision.

In the present case the statement was seven pages in length. The appeal was from an order of the trial court refusing to grant a new trial. The order or judgment was not abstracted nor were any of the pleadings. Therefore, we must affirm the judgment of the trial court for the reason that appellant has failed to comply with Rule 9-

Affirmed.

John I. Purtle, Justice, dissenting on denial of rehearing.

John I. Purtle, Justice,

dissenting. I would grant the petition for rehearing and decide the case on its merits. I agree that we were too harsh in treating this case under Rule 9(d), especially in view of the fact that appellant was not given an opportunity to remedy the insufficiency as provided by Rule 9(e)(2).

I was able to understand the essential parts of the record and the facts in this case. There is no question in my mind that had we reached the case on its merits we would have had no choice other than to affirm the trial court. There was a substantial recovery, and it was a matter solely within the province of the jury to decide. Neither lawyers nor judges have the authority to overrule a jury where it has properly considered and decided the facts of a case.

Therefore, I would issue a substituted opinion for the per curiam and would affirm the judgment of the trial court on its merits.


author: Richard B. Adkisson, Chief Justice.

text:
    Walter A. WOOTEN v. Mac McCLENDON
    80-271
    612 S.W. 2d 105
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981

      Ray & Donovan, for appellant.

      Daggett, Daggett & Van Dover, by: David W. Cahoon, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Walter A. Wooten, filed suit for damages to his vehicle which occurred on March 17, 1977, as a result of appellee’s negligence. The jury awarded him property damages in the amount of $2,000 and personal injury damages in the amount of $750. Judgment was entered in these amounts on May 14, 1980.

Thereafter, on May 27, 1980, the appellant filed a motion to amend the judgment to include prejudgment interest on the property damages. This appeal is from an order denying the motion to include prejudgment interest on property damages from March 17, 1977 to May 14, 1980.

Prejudgment interest is compensation for recoverable damages wrongfully withheld from the time of the loss until judgment. This interest must be allowed for any injury where, at the time of loss, damages are immediately ascertainable with reasonable certainty. Where prejudgment interest is collectible at all, the injured party is always entitled to it as a matter of law. Nothing is left for the jury’s consideration. The court stated in Lovell v. Marianna Federal Savings & Loan Association, 267 Ark. 164, 589 S.W. 2d 577 (1979): “The test in prejudgment interest cases is whether there is a method of determination of the value of the property at the time of the injury. If such method exists, prejudgment interest should be allowed.”

The recovery of prejudgment interest is not dependent upon whether the claim is liquidated or whether it sounds in tort or contract. However, in most personal injury claims the amount of money damages is not measurable until some future time. Prejudgment interest will always be dependent upon the initial measure of damages being determinable immediately after the loss. If the damages are not by their nature capable of exact determination both in time and amount, prejudgment interest is not an item of recovery.

Since damages are reduced to money and since interest is the price paid for the use of money, it logically follows that to fiilly compensate the injured party for his delayed recovery the rate of prejudgment interest should be that rate which is currently in use by those lending money. However, Ark. Const, art. 19, § 13 artifically regulates the price for the use of money and provides that, when no rate of interest is agreed upon, the rate shall be 6% per annum. Therefore, since the legislature has failed to prescribe a rate for prejudgment interest, it must be set at 6% as prescribed by the Constitution.

The trial court erred in not granting appellant’s motion to amend judgment to include prejudgment interest from March 17, 1977, until the date the judgment was entered on May 14, 1980, on property damages to appellant’s vehicle.

Therefore, this case is reversed and remanded for entry of judgment consistent with this opinion.


text:
    Rachel TUCKER v. Jimmy RASDON
    80-297
    612 S.W. 2d 106
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981

      Lessenberry & Carpenter, by: Thomas M. Carpenter, for appellant.

      Matthews & Sanders, by: Roy Gene Sanders, for appellee.
   Richard B. Adkisson, Chief Justice.

This appeal is from a judgment in the amount of $10,075.00 against Rachel Tucker, appellant, for malicious prosecution. Jimmy Rasdon, appellee, filed suit after appellant caused him to be charged with theft of property and the proceedings were terminated in his favor.

While Rasdon and his family were tenants in one of Rachel Tucker’s trailers, they witnessed her removing personal property from a trailer of another tenant, the Coles. The Coles filed suit against Tucker; and, after the Rasdons consented to testify about the incident, they moved from the rented trailer at Tucker’s request.

Three weeks before the trial of the Coles’ lawsuit, Mrs. Rasdon gave deposition testimony about Tucker removing the Coles’ personal property. One week later Tucker filed charges against Rasdon for a theft which had allegedly occurred some nine months earlier at the time Rasdon was moving from the trailer; Tucker failed to appear in municipal court on either of the two settings and the charges were later dismissed.

I

The trial court did not err in permitting questioning during redirect examination about specific instances of conduct by Tucker. During the trial, Rasdon called Tucker as a witness on direct examination to prove that Tucker was responsible for having the criminal prosecution initiated. Tucker’s attorney then examined her and elicited testimony supporting her defense — that Rasdon had, in fact, stolen her property. On redirect Rasdon sought to impeach Tucker by asking questions about a prior act of misconduct — whether she had committed perjury.

Tucker argues that regardless of the issue of truthfulness, the evidence was improper because it was offered on redirect as opposed to cross-examination as required by Rule 608(b), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) which provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness. ...

This rule must be read along with Rule 607 which provides: “The credibility of a witness may be attacked by any party, including the party calling him.”

The impeachment questions were not asked on direct examination, but on redirect, and then, only after Tucker’s own attorney had fully developed all of appellant’s testimony offered in defense and after the trial judge had declared Tucker a hostile witness, without objection, for purposes of cross-examination.

Appellant states that the impeachment questions were not properly offered in light of Gustafson v. State, 267 Ark. 278, 590 S.W. 2d 853 (1979), which requires the examination must:

(1) be conducted in good faith;
(2) be such that its probative value outweighs its prejudicial effect; and
(3) be directed toward the misconduct of the witness relating to his truthfulness or untruthfulness.

We find that the requirements of Gustafson were met. First, the “good faith” requirement was met since, in this case, the witness, Tucker, admitted prior perjured testimony. Second, the test of probative value versus prejudicial effect was met since it was critical that the judge allow the jury to fully explore the credibility of the parties in this type of lawsuit — a matter which is within the trial court’s discretion. Third, the requirement of relatedness of the misconduct to the witness’s truthfulness is obviously met where the misconduct in question here was perjury.

II

In civil cases this court will not consider whether the evidence was sufficient to sustain the verdict where the trial court had no opportunity to rule on the issue. Although the evidence appears overwhelming in favor of appellee, we will not consider this issue since it is being raised for the first time on appeal.

To preserve the sufficiency of the evidence issue on appeal appellant must comply with Rule 50(e) of the Ark. Rules of Civ. Proc. which provides:

Where there has been a trial by jury, the failure of a party to file a motion for directed verdict at the conclusion of all the evidence, or a motion for judgment notwithstanding the verdict, or a motion for new trial because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
For the reasons stated herein, this judgment is affirmed.

Purtle, not participating.


author: George Rose Smith, Justice.

text:
    James BURGE d/b/a JAMES BURGE PHOTOGRAPHY v. PULASKI COUNTY SPECIAL SCHOOL DISTRICT et al
    80-250
    612 S.W. 2d 108
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981

      Napper, Wood, Hardin, Grace, Downing & Allen, PA., for appellant.

      Henry J. Osterloh, for appellee.
   George Rose Smith, Justice.

Our Unfair Practices Act, modeled after the federal Robinson-Patman Act, prohibits anyone engaged in the production, distribution, or sale of any commodity or service from paying secret rebates, commissions, or unearned discounts to some purchasers on terms not extended to all purchasers, where such payments tend to destroy competition. Ark. Stat. Ann. §§ 70-301 and -307 (Repl. 1979). The appellant, Burge Photography, brought this action for an injunction and triple damages, alleging that the two defendants, Pulaski County Special School District and Phillip’s Photography, had engaged in specified practices that violated the Act.

The School District filed a motion to dismiss, on the ground that the complaint did not state a cause of action against it. The trial court apparently treated the motion as one for summary judgment under Civil Procedure Rule 12 (c), because depositions and opposing briefs were considered by the court in passing upon the motion, and we also so treat it. This appeal from the order dismissing the action against the School District presents an issue of statutory construction under Rule 29(l)(c).

For some years before 1979 the principal of one of the District’s schools, Sylvan Hills High School, had been taking what amounted to informal bids from photographers for the exclusive privilege of taking the senior class’s annual pictures. There was no fixed procedure, but photographers knew by word of mouth when the school would be making its yearly contract and were in the practice of submitting proposals at the proper time. In at least one of those prior years the plaintiff Burge obtained the contract in return for a payment of $2,000 to the school.

In 1979 there were four competitors for the contract. Phillip’s Photography submitted a detailed proposal fixing certain prices to be paid by the members of the class for individual pictures selected from a number of proofs. The proposal also required Phillip’s to pay a “commission” to the school of either $2,500 or 15% of the gross sales to students, whichever was greater. Burge submitted a somewhat different proposal by which he would take the pictures and sell them to the school at a discount, with the school reselling them to the students at specified prices. If every student bought the most expensive package, the school’s profit on the Burge contract would be $2,512.50. We need not discuss the other two bids, which were individual proposals also contemplating some profit to the school. Through the years the school used the annual profit for school purposes, such as contributing it to the cost of the school yearbook.

In 1979 the school accepted the proposal submitted by Phillip’s, on the ground that it was the most profitable, and so informed Burge. Burge then brought this action under the Unfair Practices Act. We agree with the trial court’s finding that, for two reasons, Burge has failed to show any violation of the Act by the School District.

First, the Act provides a remedy only in favor of one seller against another seller, not in favor of a seller against a buyer or vice versa. In Beam Bros. Contractors v. Monsanto Co., 259 Ark. 253, 532 S.W. 2d 175 (1976), we held that the Act fosters competition for the primary benefit of the public by protecting dealers, especially small dealers, from unfair competition by large dealers. That is not the situation before us. Burge was a seller of photographs. The School District was either a buyer or an agent of the student (or parent) buyers. Hence the Act does not create a cause of action in Burge against the District.

Second, the Act prohibits only the secret payment of what are commonly referred to as “kickbacks.” Here there was no secrecy as between the parties governed by the Act. The competition among rival photographers for the annual contract was completely open. Burge not only knew all the facts, but also had won the contract himself in a prior year and submitted a proposal in 1979. The principal testified that the payment of the commission was known to the assistant principals, the bookkeeper, the annual sponsor, and the entire annual staff. He said he had never felt any need to inform the students (or their parents) of the commission, but the contract was a matter of public record for anyone to examine. We are not called to say, and do not say, whether it was proper for the Sylvan Hills school to make a profit not affirmatively disclosed to the parents who presumably paid for their children’s pictures at the prices fixed by the photographer. We merely hold that no violation of the Unfair Practices Act on the part of the School District has been shown.

Affirmed.

Purtle, J., not participating.


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

text:
    August F. SCHEPTMANN et al v. F. Randall THORN and Marguerite THORN
    80-264
    612 S.W. 2d 291
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981

      Friday, Eldredge & Clark, by: Frederick S. Ursery, for appellants.

      Guy Jones, Jr., for appellees.
   George Rose Smith, Justice.

On the night of October 22, 1976, Randall Thorn was seriously injured when the pickup truck in which he was a passenger left the highway and overturned. The driver, John W. Hunt, and another passenger were killed. Thorn and his wife brought this action for personal injuries and loss of consortium against Hunt’s employer and Hunt’s estate. There were many disputed questions of fact, including whether Hunt was acting in the scope of his employment, Thorn’s status as a guest, willful and wanton negligence, comparative fault, assumption of risk, and the amount of damages.

The case was submitted on interrogatories, with the jury finding that Hunt was in the scope of his employment, that Thorn was not a guest and did not assume the risk, that Hunt was 80% at fault, and Thorn 20%, and that Thorn’s damages were $200,000 and his wife’s $50,000. Judgment was entered accordingly. For reversal the defendants argue that the trial judge responded so erroneously to the jury’s inquiries during their deliberation that a mistrial should have been declared. The awards are also said to be excessive.

After the jurors had deliberated for some time they returned to the courtroom and asked for instructions “about the undecided decisions we have.” The verdict forms (which the jurors had utilized as scratch paper) were handed to the judge, who went through them and made comments. The jury had not yet entered any amount of damages for Thorn or his wife. There was a majority of at least nine as to some of the interrogatories but not as to others.

We are concerned primarily with Interrogatory 4, by which the jury were to apportion the total fault between Hunt and Thorn. Toward the bottom of that form the jurors had each written their initials in a column, with a percentage figure for Hunt and another for Thorn, such as 50-50, 75-25, 90-10, etc. There is no indication that the jurors had added up the totals (which would have apportioned the fault as 73.33% in Hunt and 26.67% in Thorn). Some apportionment had actually been inserted in the blanks provided, but the judge did not announce it. Later those figures were so obliterated by the jury that the originals cannot be read. Eventually the jurors did arrive unanimously at the 80% fault for Hunt and 20% for Thorn.

The trial judge, in going through the verdict forms, announced whether or not there was at least a nine-vote majority for each interrogatory. Upon reaching Interrogatory 4 the judge’s original comments were as follows:

Now on this next interrogatory, No. 4 ... we have twelve initials on this particular interrogatory with figures following the names which I’m going to assume are percentages. (Jurors indicate this is correct.) This reminds me of a quotient verdict which is forbidden in the State of Arkansas; so I’m going to tell you we have no answer to Interrogatory 4.

After some further discussion the judge went on to say:

A quotient verdict is where everybody puts a figure in the hat and you add it up and divide by twelve, and the Supreme Court says that is not a verdict. And I feel that is what you all were starting to do or might have done.
Now, fine, it would be good to vote and let everybody say what they think it is and reach some kind of discussion on that, and come up with a decision you could be called upon and say — and probably will be called upon to say — is this your verdict? And say what is the figure and you say, “No, I didn’t agree to that. I agreed to something else.” We’re out the window again.
Start with that, that’s fine. But you all must hammer out a figure to which you can all agree, to which the apportionment of negligence is concerned. You have indicated that is what you’re going to do, but you have as yet not done that, because nine of you can’t agree on the answers to these things.

The court then gave the deadlocked jury instruction, AMI 2303, after which the following colloquy is pertinent:

Foreman Hall: Can we come up — on the percentage deals there if we hammer out a number between the twelve of us, suitable to all twelve of us, that all of us will stand behind, will that be suitable for the Court?
The Court: Yes, it will. And I want it to be everybody’s verdict and agreement, not your verdict originally but one you have agreed on individually. That is what I mean.
Juror Wood: We can’t take an average?
The Court: No. If the number you work out turns out to be an average, okay. But I want you to say, “That’s my number,” and I want you to stand behind it.

After the jury had retired again, defense counsel moved for a mistrial on the ground that the exchange between the court and the jurors with regard to a quotient verdict “is an invasion of the province of the jury at this point when they have not completed their deliberations.” The principa point argued for reversal is the court’s denial of that request for a mistrial.

No prejudicial error occurred. Where the jurors each submit a figure and agree in advance that the verdict will be one twelfth of the total, the verdict is by lot and cannot be upheld. If, however, there is no agreement in advance to be bound by the procedure, but the jurors do adopt the result, it is a quotient verdict and is valid. National Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W. 2d 488 (1972). Thus, although quotient verdicts are frowned upon, the trial judge was wrong in saying that they are forbidden in Arkansas. (It is, of course, most unlikely that the jurors had any clear idea of what is meant by a quotient verdict.)

Despite the misstatement, any possibility of a misunderstanding was eliminated by the judge’s offhand but lucid explanation. He told the jurors that it would be good to let them all say what they thought and engage in discussion, but after that beginning they should hammer out an apportionment to which they could all agree. The foreman’s last question shows that the court’s explanation was clearly understood.

It is suggested that the procedure was seriously defective, because the final 80-20 apportionment of fault may not have been the exact ratio the jury first brought into the courtroom and then obliterated. Perhaps not, but it is impossible to say that the appellants were prejudiced by whatever change the jurors may have made. Even more important, any revision was achieved by unanimous vote after the jurors had received a clear explanation of what their goal should be and were therefore in a position to improve on their first conclusion by further deliberation. Thus the parties ultimately received the jurors’ best collective judgment, the very purpose of a jury trial.

Second, it is argued that the trial judge’s remarks to the jury had the effect of telling them the effect of their answers to the interrogatories, which would be contrary to our practice. Wright v. Covey, 233 Ark. 798, 349 S.W. 2d 344, 90 A.L.R. 2d 1033 (1961). We quote the challenged remarks, made in response to a juror’s inquiry about whether all the interrogatories had to be answered:

The Court: Depending upon what your answers are, you would not, under one set of facts, have to answer every interrogatory. If your answers to some of the interrogatories are different, then you may have to answer each and every one of them, and the way you have started off answering these interrogatories I will tell you you will probably have to answer every one of them.

We are not persuaded that the court’s remarks told the jury the effect of their answers upon the parties’ ultimate liability. Of course the jurors, as practical persons, knew that the interrogatories were not propounded idly, that they were intended to have some effect upon the outcome of the lawsuit. But the court spoke only in generalities, so much so that we are wholly unable to see how the jurors could have derived any usable information from the remarks in question.

Third, we do not find the $200,000 award to Randall Thorn to be excessive. At the time of his injury he was 46, active and vigorous, with a substantial income from construction work and from farming. His injuries affected his physical and nervous condition to such an extent as to be totally disabling. The testimony of an expert witness, if accepted by the jury, would have supported a somewhat larger award. The amount of the verdict does not shock the conscience of the court or suggest passion or prejudice on the part of the jury.

On the other hand, most of Mrs. Thorn’s pertinent testimony related to the additional farm work she must do because of her husband’s disability. We have often reduced consortium awards to a wife because the jury evidently considered such matters, which not only are included in the husband’s recovery but also are not properly embraced within the concept of consortium. White v. Mitchell, 263 Ark. 787, 568 S.W. 2d 216 (1978); Scoff v.Jansson, 257 Ark. 410, 516 S.W. 2d 589 (1974);Ark. La. Gas Co. v. Strickland, 238 Ark. 284, 379 S.W. 2d 280 (1964). Here, construing the testimony most favorably to the appellees, we cannot sustain an award of more than $25,000 for loss of consortium.

Affirmed as to Randall Thorn. Affirmed as to Mrs. Thorn upon condition that a remittitur of $25,000 be filed within 17 calendar days; otherwise reversed and remanded as to her cause of action.

Hickman, J., dissents.

Adkisson, C.J., and Hays, J., dissent in part.

Darrell Hickman, Justice,

dissenting. My disagreement with the majority in this case is fundamental. It is my judgment that the trial court made two mistakes which so substantially affected the rights of the appellants that a new trial should be ordered.

The trial judge found himself in the unenviable position of having a confused jury. The jury returned to the courtroom and asked the court for assistance regarding some unanswered interrogatories. Four interrogatories had been answered. One interrogatory, No. 4, apportioned the fault between the parties and this interrogatory had been answered. However, on that same page there were figures and initials which indicated that the jurors had individually written down what percentage of negligence should be attributed to the two parties. The court wrongfully concluded that this was an invalid verdict under Arkansas law and told them they would have to change it.

I have attached Interrogatory No. 4 to this dissent. The judge wrongly concluded that this was a quotient verdict which he considered illegal in the State of Arkansas and told the jury that Interrogatory No. 4 would have to be changed. The interrogatory was then changed.

The jury had already filled in the percentages of negligence and this was a valid determination because quotient verdicts in Arkansas are not illegal. Only a verdict which is determined by lot is illegal. The difference is that in a quotient verdict the jurors give their opinion of the amount that should be used in a verdict and they make this amount known to the other jurors. The amounts are added and the total divided by the number of jurors. If the jurors agree to the resulting amount, this becomes a quotient verdict. However, if the jurors agree in advance that they will be bound by these figures, then it is a verdict by lot and it is prohibited. National Credit Corp. v. Ritchey, 252 Ark. 106, 477 S.W. 2d 488 (1972); Connelly v. State, 234 Ark. 143, 350 S.W. 2d 298 (1961); Lin Mfg. Co. of Ark. v. Courson, 246 Ark. 5, 436 S.W. 2d 472 (1969).

A quotient verdict cannot be impeached and, therefore, this verdict, Interrogatory No. 4, was a valid finding by the jury. National Credit Corp. v. Ritchey, supra.

We do not know what the original findings of the jurors were but we do know that Interrogatory No. 4 was improperly ordered changed. What we have is a lawful verdict agreed upon by a jury and subsequently changed by the trial court. It ought to be obvious that this is reversible error. St. Louis Southwestern Ry. Co. v. Aydelott, 128 Ark. 479, 194 S.W. 873 (1917). The concept that a trial judge must manifest impartiality in the conduct of a trial was recently restated by this court in Kitchen v. State, 271 Ark. 1, 607 S.W. 2d 345 (1980). This, added to the fact that the court made an improper remark to the jury when one juror asked if they could just throw out one interrogatory or ignore it, the judge replied; “... the way you have started off answering these interrogatories, I will tell you you will probably have to answer every one of them.” At this time none of the interrogatories regarding damages had been filled in by the jury. I also consider this error.

I am authorized to state that Justice Hays joins me in this portion of the dissent.

My other disagreement is with the majority’s reduction of the award for consortium. Damages in this regard were set by the jury at $50,000.00 and this court has arbitrarily, and in my judgment improperly, reduced the damages to $25,-000.00. If there was adequate evidence to support $25,000.00, there is adequate evidence to support $50,000.00. I am authorized to state Chief Justice Adkisson joins me in this portion of the dissent.

Thom v. Scheppmann Faulkner Circuit . CIV 77-310

INTERROGATORY NO. 4

Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from It, apportion the fault between the parties whom you have found to be responsible.

Answer: John W. Hunt %

Randall Thorn 7& %

Total 100%

By the term "fault" in the above interrogatory, I mean any act, omission, conduct or risk assumed which you find proximately caused any damages sustained by Randall Thom.

Steele Hays, Justice,

dissenting. I believe that there is enough uncertainty in how the jury reached its final verdict to justify remanding the case for a new trial. In the discussions over Interrogatory No. 4, the trial judge instructed the jury that its initial completion of the interrogatory was improper under our law, being a quotient verdict. It is conceded that this was an error on his part. While nine jurors had not yet agreed on Interrogatory No. 4, it is evident that the interrogatory was not improper and that the jury had filled in the percentages of fault on the part of Randall Thorn and John Hunt. What these percentages were is not revealed, as they were later obliterated by the jury, but the jury was told by the judge that its treatment of the interrogatory was “forbidden.” They were told to return to the jury room with the instruction that their verdict should be the verdict of all the jurors, but “not your original verdict.”

The majority reasons that the appellant was not prejudiced by this development. But the answer to that lies in the interrogatory itself, as the original completion shows that four of the jurors had determined that Randall Thorn’s negligence was equal to the negligence of John Hunt and in that posture the plaintiff could not have recovered any amount. Thus, the jury was erroneously instructed that they must undo what they have done and any verdict returned thereafter is unreliable.

The court’s instruction to the jury at this stage of the proceedings, i.e., after deliberations have begun, are the most sensitive stage of the trial process and when those instructions are material and admittedly erroneous, a new trial should be ordered.


author: Frank Holt, Justice.

text:
    Dorothy HAIR v. J. C. HAIR
    80-287
    613 S.W. 2d 376
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981
    [Rehearing denied April 20, 1981.]

      Howell & Price, for petitioner.

      Macom, Moorhead, Green & Henry, for respondent.
   Frank Holt, Justice.

Petitioner sued respondent for divorce and asked that a written property settlement between the parties be enforced by the court. Respondent counterclaimed for a divorce, asked that the agreement be annulled and that a conveyance by him of his interest in the family home pursuant to this agreement be set aside. The chancellor denied both parties a divorce, set aside the agreement, and ordered respondent’s quitclaim deed to be set aside. This decree was upheld by the Court of Appeals. Hair v. Hair, 270 Ark. 948, 607 S.W. 2d 72 (Ark. App. 1980). We granted certiorari. We affirm the denial of a divorce and reverse as to the cancellation of the property settlement and setting aside of the deed.

The parties, who had been married since 1952, entered into a “Separation and Property Settlement Agreement” on April 14, 1977. The parties were living in the same household and continued to do so after the agreement until the divorce action. The agreement provided that they were making an effort to maintain the home for the benefit of their 15 year old daughter until she finished high school; if petitioner sued for a divorce prior to that time the agreement would be null and void; it was the intention of the parties that all rights with respect to the property and financial matters be finally and conclusively fixed and determined by the agreement; the petitioner would receive the furniture, fixtures and appliances, among other things, and title to the home; a joint bank account would be maintained from which the petitioner would pay the living expenses and bills incurred; respondent would be responsible for the college education of their children, Rhonda and Denise, provided they attended an Arkansas supported college; if the respondent should discontinue the joint bank account or stop depositing money in the account as agreed, he would pay petitioner a stipulated alimony amount; and the agreement should not be merged in any decree for divorce but should survive the same and be forever binding and conclusive on the parties.

It was undisputed by the parties that they continued to live in the same household following their agreement until petitioner filed the present action for divorce on June 6, 1979, one month following their youngest daughter’s high school graduation. Both parties testified that, at the time of the signing of the agreement, respondent wished to stay in the home until their youngest daughter graduated from high school. Here, the parties’ testimony diverges. Petitioner testified that she slept in her children’s bedroom from the day the agreement was signed; the couple had not had sexual relations in five years before the agreement and had not lived together as man and wife since signing the agreement; sometimes they attended ball games together after the agreement was signed; however, they arrived in different cars, and they did not go to social functions together; she did not record the quitclaim deed to their home until April 4, 1979, because respondent is a disabled veteran and did not have to pay real estate taxes.

Respondent admitted signing the agreement. He testified they resumed sexual relations from the day the agreement was signed in April of 1977 until the following November; further, his wife had told him upon signing the agreement that she thought they could make a go of it and she would not need to file for divorce; she slept in another room because of his snoring; they attended certain social functions and other activities together. According to neighbors, there was no appearance of estrangement.

The trial judge found that the agreement was valid at the time of its execution. However, he found that subsequently the parties “cohabited as husband and wife” and the agreement should therefore be set aside and voided. In this he erred. It is true that if the parties to a separation agreement resume their marital relationship and their conduct is such that no other reasonable conclusion can be justified than that they intended to cancel their agreement, then it results in abrogation of the agreement. O’Quinn v. O’Quinn, 217 Ark. 321, 230 S.W. 2d 16 (1950). See Simpson, Administrator v. Weatherman, 216 Ark. 684, 227 S.W. 2d 148 (1950); Sherman v. Sherman, 159 Ark. 364, 252 S.W. 27 (1923); and Carter v. Younger, 112 Ark. 483, 166 S.W. 547 (1914). However, the fact that the two may have resumed a marital relationship, which is disputed here, does not cancel a mutual agreement. In Arnold v. Arnold, 261 Ark. 734, 553 S.W. 2d 251 (1977), we said:

[W]hen there is a property settlement, it is generally held to be a final and binding contract between the parties which can only be voided by mutual agreement. Reconciliation alone does not terminate the settlement. Therefore the settlement survives the reconciliation unless the court can find an intention or an express agreement that it shall not survive.

Further, the agreement being undisputed, the burden of proof was upon respondent to show that the agreement had been abrogated. Carter v. Younger, supra. Here it cannot be said that respondent has sustained, by a clear preponderance of the evidence, his burden of showing that no other reasonable conclusion can be reached than that the parties intended to abrogate the agreement. The testimony of both parties as to why the two continued to live under the same roof is consistent with the agreement. The fact that the quitclaim deed was not recorded until later was also adequately explained by the petitioner. The divorce was filed the month after the youngest child graduated, which is also in keeping with the agreement.

However, we agree with the chancellor and with the Court of Appeals that the petitioner failed to establish grounds for a divorce for general indignities. She testified as to certain indignities to which she was subjected. However, the only corroboration was that of her mother and sister. Her mother testified that there was a tenseness when she visited in the home and petitioner’s eyes were tear-stained and red. According to her sister, the respondent’s attitude was “nothing,” and Mrs. Hair appeared to be very nervous and upset with red eyes, “nobody ... speaking to anybody.” It is true that in the case of both parties seeking a divorce, as here, only slight corroboration is required. Ferguson v. Ferguson, 251 Ark. 585, 473 S.W. 2d 869 (1971); and McNew v. McNew, 262 Ark. 567, 559 S.W. 2d 155 (1977). Mere statements of generalities or statements of opinion, beliefs and conclusions of the witnesses are not enough to constitute sufficient corroboration. Such testimony must be directed toward specific language, acts and conduct. Welch v. Welch, 254 Ark. 84, 491 S.W. 2d 598 (1973). The evidence here did not meet these tests and the chancellor correctly denied the divorce.

We deem it unnecessary to discuss petitioner’s other contentions for reversal.

Affirmed in part and reversed in part.

Hays, J., not participating.


author: Darrell Hickman, Justice.

text:
    Carl RIDDELL, et al v. CITY OF BRINKLEY, Arkansas, et al
    80-268
    612 S.W. 2d 116
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981

      Daggett, Daggett & Van Dover, and Steven W. Elledge, for appellants.

      Burke & Eldridge, by: John R. Eldridge and Dan Kennett, for appellees.
   Darrell Hickman, Justice.

This is a zoning case from the City of Brinkley, Arkansas. The chancellor found valid a city ordinance that rezoned a tract of land on Brinkley’s southwest city limits.

On appeal the appellants argue that the chancellor was wrong because the ordinance was arbitrary, capricious, and amounted to spot zoning. We disagree and affirm the decree.

The tract in question is on the city limits of Brinkley, Arkansas, and is part of a larger tract which was zoned R-l, for residential purposes only, in 1967. At that time the City of Brinkley adopted a comprehensive plan and, anticipating residential growth toward this area, zoned the tract R-l. However, the evidence reflects that it was not then used for that purpose nor has it been developed as residential property since then. In fact, there was considerable evidence that it was not suitable to be used exclusively for residential purposes.

The appellee landowners, who include a company named Eldridge Supply, Inc., sought the rezoning in 1975 because Eldridge wanted to build an International Harvester retail sales and service building on the land. Eldridge owns seventeen acres of which about half is in the city limits. Ninety percent of the landowners joined in the petition.

Objections to this petition were made by several parties, including nearby residential owners and others who were interested in preventing a change. The matter was presented in a hearing to the City Planning Board which divided on the issue; two were in favor of the rezoning; two were against it; one member was absent, and one member abstained. The City Council also had a hearing on the matter where all parties had a chance to testify; the Council voted five to two to grant the change.

The matter was appealed to the Monroe Chancery Court. Several expert witnesses testified. C. V. Barnes, a licensed realtor, testified for the appellants and concluded that the rezoning amounted to spot rezoning. An expert witness for the appellees, who was identified as a consulting planner from Fayetteville, testified to the contrary. Other witnesses included the appellees and appellants who were all landowners or interested parties.

The chancellor, in a comprehensive memorandum opinion, carefully explained his findings that this was not spot zoning and that the action of the City Council was not arbitrary. Summarized, those findings are: 1. There was no development of any kind in the area rezoned; 2. With certain exceptions, there was no development within the entire two or three hundred acres originally zoned R-l. This area was separated from the developed area of the city by additional residential zones which remained raw and undeveloped property; 3. When the ordinance was originally adopted, it was projected that residential growth would be to the south and across the area rezoned. This development has not occurred; 4. The land immediately north of this tract was zoned commercial but little or no commercial use has developed. The land to the south and west was outside the city limits and was not classified; 5. One residence, outside the city limits, is located adjacent to the rezoned strip and was in existence when the land was zoned originally. However, a commercial aviation activity has been used in connection with this residence; 6. Immediately east and across Highway 49 there is one residence and a sawmill. The sawmill was present before the zoning occurred and was permitted to continue as a nonconforming use; and, 7. There were residences located several hundred feet north of an intersection between State Highway 232 and U.S. Highway 49. Some of these were erected before the zoning ordinance. Evidence was divided as to whether these homes were adversely affected by the rezoning.

All the rest of the land zoned R-l was found to be undeveloped. There were no lots, blocks, streets, or utilities.

If the particular tract in question could be identified by a summary it would be fair to say that it is on the outer city limits of the City of Brinkley and is located within a tract of land that was originally designated for residential purposes but had never developed. On one side is the Cotton Belt Railroad and other commercially zoned property. The tract is bounded on another side by a state highway. A U.S. highway separates the appellees’ property from the rest of the city.

Did rezoning this property amount to spot zoning? Spot zoning has been defined by several authorities. It has been said that:

Spot zoning, by definition, is invalid because it amounts to an arbitrary, capricious and unreasonable treatment of a limited area within a particular district. As such, it departs from the comprehensive treatment or privileges not in harmony with the other use classifications in the area and without any apparent circumstances which call for different treatment. Spot zoning almost invariably involves a single parcel or at least a limited area. R. Wright and S. Webber, Land Use (1978).

We agree with the chancellor that rezoning this particular tract did not amount to spot zoning and was not an arbitrary act by the City Council. The review of a zoning case is limited to determining whether the decision to rezone is arbitrary and capricious. City of Little Rock v. McKenzie, 239 Ark. 9, 386 S.W. 2d 697 (1965); Downs v. City of Little Rock, 240 Ark. 623, 401 S.W. 2d 210 (1966);James v. Price Const. Co., 240 Ark. 628, 401 S.W. 2d 206 (1966);Marling v. City of Little Rock, 245 Ark. 876, 435 S.W. 2d 94 (1968); Tate v. City of Malvern, 246 Ark. 316, 438 S.W. 2d 52 (1969). These cases also hold that in order to reverse a chancellor’s findings regarding a zoning case we must find that the decree was clearly against the preponderance of the evidence. Rule 52, Rules of Civil Procedure, has redefined that to mean that we must affirm unless the findings are clearly erroneous.

Affirmed.


author: Darrell Hickman, Justice. Richard B. Adkisson, Chief Justice,

text:
    George Amos SCOTT and Henry Clayborne JOHNSON v. STATE of Arkansas
    CR 80-129
    612 S.W. 2d 110
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981

      James P. Massie, for appellant Scott.

      Ralph M. Cloar, Jr., for appellant Johnson.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

George Amos Scott and Henry Clayborne Johnson were convicted of possessing firearms, a violation of Ark. Stat. Ann. § 41-3103. Scott was sentenced to six years imprisonment; Johnson to five. They were admittedly convicted felons. On appeal, the controlling issue is whether a transcript of testimony taken at a preliminary hearing may be used as evidence in a circuit court criminal trial where the witness is unavailable.

The circuit judge admitted the transcript and this transcript was the basis of the convictions. We disagree with the circuit judge’s decision. The transcript was not admissible because it did not comply with the rules of evidence and because it violated the defendants’ Sixth Amendment right to confront a witness.

The facts are essentially undisputed. The appellants, Scott and Johnson, were arrested on March 4, 1979, at the residence of Cherylinda Ford. Ford had called the police to complain that Scott and Johnson were terrorizing her. The police arrived and found two pistols; one was located in or near Ford’s purse; the other was inside a washing machine. Scott and Johnson were both present in the house when Ford indicated that the guns were theirs. The appellants were arrested for possession of the firearms.

A preliminary hearing was held in the Little Rock Municipal Court on March 13, 1979. Ford testified, but the questions were brief and Ford’s answers were the same. The substance of her testimony was that these defendants owned the guns. Johnson and Scott were present with separate lawyers. Johnson’s attorney asked Ford five questions; Scott’s attorney asked no questions. The limited cross-examination revealed that Ford was the only person who saw these men with the guns.

In May the case was set for trial on October 25,1979. The day of trial the State announced it could not produce Ford as a witness. It had learned the address of Ford in California on the morning of the trial. A transcript of Ford’s testimony taken at the preliminary hearing was offered as evidence. The State argued that the transcript was admissible under Rule 804 (b)(1), Uniform Rules of Evidence. That rule does provide under certain circumstances prerecorded testimony is admissible. It reads:

(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

The appellants argued it was not admissible for two reasons: First, the State had to show more than the fact a witness was “unavailable;” second, it would violate a defendant’s right to confront witnesses.

A deputy sheriff testified briefly. He was a specialist in locating difficult-to-find witnesses and had had the subpoena “about a week.” He had tried several ways to locate Ford but had just that morning learned her exact address in California. The judge ruled that the State had shown the witness “unavailable.” The other objections were overruled and the transcript was admitted.

On appeal, the appellants argue as their first point that the judge was wrong in finding the witness “unavailable.” It is not necessary for us to review that decision because the transcript was otherwise inadmissible. It did not comply with Rule 804 and violated the confrontation clause of the Sixth Amendment to the United States Constitution. Rule 804 clearly provides not only that the witness must be unavailable but also that the testimony must be given at a proceeding where a party had “an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.”

Any study of such an evidentiary rule in connection with a criminal case must be in conjunction with the confrontation clause of the Sixth Amendment. The Sixth Amendment provides that:

... the accused shall enjoy the right... to be confronted with the witnesses against him. ...

As Justice Stewart said in Dutton v. Evans, 400 U.S. 74, 86 (1970), the two concepts “stem from the same roots.” There has traditionally been an exception to the right of confrontation where a witness who testified at a prior trial is unavailable at a later judicial proceeding. Mattox v. State, 156 U.S. 237 (1895). State evidentiary rules can fall within this exception if two tests are met. First, the witness must be “unavailable.” A witness is not unavailable unless the State has made a good faith effort to obtain the witness’s presence at the trial. Barber v. Page, 390 U.S. 719 (1968). Next, the evidence must be reliable, and that is our only concern here.

The United States Supreme Court has said such evidence (i.e. the transcript of a separate hearing) must have “indicia of reliability” and “afford the trier of fact a satisfactory basis for evaluating the truth of the prior statement.” Mancusi v. Stubbs, 408 U.S. 204 (1972). Does that mean testimony taken at a preliminary hearing can be later used in a criminal trial? It depends on the hearing and the circumstances surrounding the taking of the testimony. In a series of decisions the United States Supreme Court has explained the confrontation guarantee as it relates to this problem.

In Pointer v. Texas, 380 U.S. 400 (1965), testimony taken at a preliminary hearing was found wanting. The defendant had no lawyer and there was no cross-examination. The court indicated that the case would be different if there had been a “full fledged” hearing.

In Barber v. Page, supra, the court said that testimony from a preliminary hearing was not admissible even though the defendant had been present and had an attorney. The attorney in Barber had not cross-examined the witness, although another attorney for the another defendant had.

The court in California v. Green, 399 U.S. 149 (1970), found that testimony taken at a preliminary hearing was admissible. The hearing was obviously different from that in Barber. The reasons given for admission were: The circumstances closely approximated those that surround a typical trial; the witness was under oath; the defendant was represented by counsel and had every opportunity to cross-examine the witness; and, the trial was before a judicial tribunal equipped to provide a judicial record.

In Mancusi v. Stubbs, supra, testimony from a trial held eight years earlier was offered. It was argued that the transcript was inadmissible because the cross-examination had not been effective. The court held otherwise, looking at the testimony to see if there were the “indicia of reliability” referred to in Dutton.

Obviously admission depends upon the circumstances surrounding the hearing. In the case of a preliminary hearing admission depends on what kind of hearing is involved and whether it is a “full fledged” hearing or a limited one. In Mancusi v. Stubbs, supra, the court compared the circumstances surrounding the giving of testimony in the trial of a serious felony before a jury as opposed to testimony before a magistrate at a preliminary hearing; in California v. Green, supra, the court did not find the preliminary hearing “significantly different” from an actual trial.

In Dutton, when examining transcribed testimony, the court explained what some of the “indicia of reliability” were. Does it answer obvious questions relating to identity, personal knowledge of the witness, the role of the defendant, [in this case each defendant], and, did the witness have any motive to lie or misrepresent?

Treatment of this issue by various states provides some guidance. Colorado, whose preliminary hearing law is similar to Arkansas’s, has decided that testimony taken at a preliminary hearing cannot be used at trial. In People v. Smith, 597 P. 2d 204 (Colo. 1979), Colorado concluded that the limited scope of the preliminary hearing in Colorado failed to satisfy constitutional requirements granting the right to confront witnesses. Apparently that would apply to all testimony taken at a preliminary hearing. Virginia, in Fisher v. Commonwealth, 217 Va. 808, 232 S.E. 798 (1977), came to a different conclusion. However, in Fisher, it was pointed out that the witness, who was unavailable, was subject to a “vigorous, detailed and searching cross-examination” by an attorney for the defendant. Consequently, the Virginia court concluded that the transcript satisfied constitutional requirements.

That leads us to examine our rule of evidence as it releates to this preliminary hearing. A preliminary hearing in Arkansas is ordinarily one initiated by the State to show probable cause. The procedure is generally provided for in Ark. Stat. Ann. § 43-601, et seq. (Repl. 1977). It is not a required but a discretionary procedure. Graves v. State, 256 Ark. 117, 505 S.W. 2d 748 (1974).

Constitutional requirements imposed in recent years are satisfied if a person is taken before a judicial officer in compliance with Rules of Crim. Proc., Rule 8. In such a case the judicial officer shall determine by an “informal, non adversary” hearing whether there is probable cause.

Either of these procedures might or might not amount to a “full fledged” hearing. In this case all we have is a brief transcript of the testimony of the only witness against these defendants. There is no evidence that the transcript was taken at the instance of the judge. There was no extensive cross-examination. Motive of the witness was important because one of the defendants was apparently her former boyfriend.

The hearing was not one where a motive existed to develop testimony as one would have in a trial. The appellants were represented by attorneys but were not obligated to cross-examine the witness. To presume that they should have done so would be to presume that they knew the testimony could be used later in the absence of the witness. That would mean a preliminary hearing could not be one solely to learn if only probable cause existed. It is questionable whether there is even a right to conduct a searching cross-examination at a preliminary hearing. Moreover, a defendant, having no obligation to cross-examine, may for strategy’s sake forego examination. The defense may not wish to disclose its theory of defense.

There is a statutory provision for preserving testimony at a preliminary hearing but it contains several conditions. Ark. Stat. Ann. § 43-626 provides that if a witness fails to enter into the required recognizance, or the magistrate has reasonable grounds to believe a witness may not appear, the witness can be examined for that purpose. However, there must be notice of that intention to the other party. Here the State offered no evidence that it complied with the statute.

The problem before us is one of a limited transcript where a bare opportunity existed to cross-examine. The transcript must pass two tests: Rule 804(b)(1) requires a hearing where a similar motive exists, and the transcript must also meet the reliability test imposed by the United States Supreme Court. We conclude that it fads those tests.

While we do not adopt Colorado’s view that testimony from a preliminary hearing can never be admitted, we readily find this transcript was inadmissible.

Reversed and remanded.

Adkisson, C.J., dissents.

Richard B. Adkisson, Chief Justice,

dissenting. The majority correctly state the issue, which is whether a transcript of testimony taken at a preliminary hearing may be used as evidence in a circuit court criminal trial where a witness is unavailable. I dissent from the majority decision.

The appellants appeared at plea and arraignment in Pulaski County Circuit Court on May 29, 1979, and after they waived their right to trial by jury, a court trial was set for October 25, 1979. The subpoena for Cherylinda Ford (absent witness) was not issued until ten days before the trial, a delay of over four and one-half months from the arraignment date. On the day of trial, Cherylinda Ford was reported to be living in Pasadena, California.

I

The majority’s holding that it is unnecessary to reach the issue of the “unavailability” of the witness ignores Satterfield v. State, 248 Ark. 395, 451 S.W. 2d 730 (1970) in which this court held that the prosecution must make a “good-faith effort” to obtain a witness at trial before it can claim the “unavailability” exception to the confrontation requirement. This is also the rule recognized by the United States Supreme Court. They said that state evidentiary rules can fall within this exception if two tests are met. First, the witness must be “unavailable,” and second, the testimony must be found to be reliable. A witness is not unavailable unless the State has made a good-faith effort to obtain the witness’s presence at the trial. Barber v. Page, 390 U.S. 719 (1978). Also see Dutton v. Evans, 400 U.S. 74 (1970);Mattox v. U.S., 156 U.S. 237 (1895).

Since the trial court held that the witness in this case was unavailable, the only remaining issue under the confrontation clause of the Arkansas and United States Constitutions is whether the testimony given at the preliminary hearing is reliable. The United States Supreme Court considered the issue of reliability in California v. Green, 399 U.S. 149 (1970) and found that testimony taken at a preliminary hearing was admissible. The reasons given for admission were: The circumstances closely approximated those that surround a typical trial; the witness was under oath; the defendant was represented by counsel and had every opportunity to cross-examine the witness; and, the trial was before a judicial tribunal equipped to provide a judicial record. All of the circumstances present in Green are present here and, therefore, this case should be affirmed.

II

I would also take exception with the majority holding that the transcript, to be admissible, must pass only the test as to whether a similar motive exists. In all cases the transcript, of course, must meet the reliability test imposed by the United States Constitution.

However, in regard to “a similar motive,” Rule 804 (b)(1) provides: “the party against whom the testimony is now offered [must have] ... had an opportunity and similar motive to develop the testimony. ...” The test as stated in the majority opinion should consider both of the elements of Rule 804(b)(1); instead, however, it de-emphasizes the element of “opportunity” for cross-examination which has been emphasized in prior cases. See Walls v. State, 194 Ark. 578, 109 S.W. 2d 143(1937);Satterfieldv. State, 248 Ark. 395, 451 S.W. 2d 730 (1970);Pointer v. Texas, 380 U.S. 400 (1965). Although the Colorado case, apparently favored by the majority, places emphasis on the “motive” for cross-examination, both opportunity and similar motive are factors to be considered in determining whether former testimony is admissible as an exception to the hearsay rule under Rule 804.

Also, the majority state that the “motive of the witness was important because one of these defendants was apparently her former boyfriend.” This statement regarding the motive of the witness expands the scope of Rule 804 which only requires the party against whom the testimony is offered to have had an opportunity and similar motive to develop the testimony. I don’t think we should consider the motive of a mere witness. It certainly is not required by Rule 804.


text:
    Gary Lee WILLIAMS v. STATE of Arkansas
    CR 80-174
    612 S.W. 2d 115
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981

      E. Alvin Schay, State Appellate Defender, by: Jack Kearney, Deputy Defender, and Wayne Boyce, Trial Counsel, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal from a hearing held in the Jackson County Circuit Court on a petition by Gary Lee Williams for post-conviction relief pursuant to Rules of Crim. Proc., Rule 37.

Williams had pled guilty to capital felony murder, rape, kidnapping, and use of a firearm in connection with a felony on May 13, 1976. The petition generally alleges that Williams’ plea was void because it was entered as a result of duress and without comprehension of the consequences.

After a lengthy hearing on the matter the trial court denied relief. We cannot reach the merits of this matter because the trial court did not enter findings of facts and conclusions of law as required by Rules of Crim. Proc., Rule 37.3. We have held without exception that this rule is mandatory and requires written findings. State v. Maness, 264 Ark. 190, 569 S.W. 2d 665 (1978);Robinson & Williams v. State, 264 Ark. 186, 569 S.W. 2d 662 (1978).

On review, we determine whether these findings are supported by a preponderance of the evidence. Unless the findings are clearly erroneous, they will be affirmed. Therefore, we must have specific findings regarding the facts in the case and the conclusions of law so that there can be a meaningful review of those findings.

Reversed and remanded.

Dudley, J., not participating.


author: John I. Purtle, Justice.

text:
    Harry WARD v. STATE of Arkansas
    CR 80-182
    612 S.W. 2d 118
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981

      E. Alvin Schay, State Appellate Defender, by: Jackson Jones, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   John I. Purtle, Justice.

The appellant was charged by information on October 3, 1979, of causing the death of Patra Bryant on October 1, 1979. He was tried before a jury on April 24, 1980, and was found guilty of murder in the first degree in violation of Ark. Stat. Arin. § 41-1502 (Repl. 1977). He was sentenced to life in prison. On appeal he alleges (1) that the court erred in failing to exclude a statement made by him while he was in custody and prior to receiving a Miranda warning; (2) that the court erred in allowing the prosecuting attorney to comment about the appellant’s election to remain silent; and, (3) that the evidence was insufficient to support the verdict.

We agree with appellant on his second argument.

The facts reveal that Harry Ward and Everett “Jiggs” Lincolmfelt had been friends for 40 years prior to October 1, 1979- They resided in rural Monroe County near Indian Bay, Arkansas. In fact, they were neighbors. On October 1, 1979, appellant and “Jiggs” Lincolmfelt were out driving around and drinking beer. Along about night the two of them decided to have a fish fry. They purchased a nice enough buffalo for about $5 and went to the home of Patra Bryant for the fish fry. For some reason the fish fry did not come off and appellant was asked to leave and to return in about 45 minutes for the purpose of picking “Jiggs” up. When Harry returned to the Bryant home neither “Jiggs” nor Patra Bryant were present. He started back to his own home when he noticed the light on at “Jiggs’ ” house. He drove into the yard and up next to the rear porch where he stopped his vehicle. From this point the testimony is very disputed with the appellant insisting that shortly after he arrived at Lincolmfelt’s home that Lincolmfelt jumped him and beat him over the head with a gun. He alleges that the first thing that Lincolmfelt said to him was, “You son-of-a-bitch, I’m fixing to kill you.” Appellant alleges he asked “Jiggs” what was the matter, and the reply was, “You have been married to a woman for 35 years that I have loved all my life.” He also testified that Patra Bryant helped Lincolmfelt and that she used a brick to strike him over the head. He stated he was momentarily rendered unconscious and upon regaining the ability to leave he went to his car and obtained a shotgun and fired two shots, one of which killed Patra Bryant. He said he did not know that he had injured anyone and was not aiming at anybody when he fired toward the house.

The undisputed evidence shows Patra Bryant was struck at fairly close range with a shotgun blast which almost severed her arm and apparently struck her heart. She died from the shotgun blast immediately. There was a brick with bloodstains on it found inside the house and a pool of blood which was not next to the body of the deceased. Also, appellant had numerous cuts and abrasions about his head. He was hospitalized for a period of time following the incident.

Lincolmfelt’s story differs from appellant’s story in that he claimed the appellant came at him and the deceased with a pistol and fired several times. He stated he took the pistol away from the appellant and “pecked” him on the head with it. He denied that the deceased helped him beat the appellant up. He stated that after he took the pistol from appellant that appellant returned to his car and picked up the shotgun and fired into the house, and that one of the shots struck and killed Patra Bryant. His testimony clearly described the appellant as the aggressor.

Appellant returned home immediately after the incident at Lincolmfelt’s house and sent his wife to get the constable. The constable, Jack George, arrived at the house of appellant soon thereafter and inquired, “What happened?” The appellant replied, “I shot ‘Jiggs’.” The constable, who was appellant’s son-in-law, told appellant not to make any further statements. No further statements were made by the appellant. The “I shot ‘Jiggs’ ” statement was used at the trial by the prosecution. Also, during the trial the prosecuting attorney openly referred to occasions when appellant refused to discuss the incident. At one time appellant told his attending physician that he would not discuss the matter and the other occasion was when he was taken into custody by the officers and refused to make a statement. The prosecutor in the closing argument mentioned that appellant “didn’t tell the police officers anything,” and that “he didn’t have anything done about the people beating him up.” He further remarked: “Mr. Ward didn’t want to talk about the matter. He wanted to talk to his lawyers. He knew he was in trouble. No, he wasn’t going to tell them. No, huh-uh, and there is a very good reason for that because he done wrong. He done wrong, and he knew he had done wrong.”

The appellant took the stand in his own behalf and was questioned about all of the matters which the prosecutor argued. The trial court overruled the appellant’s motion in limine in which he tried to prevent the prosecutor from arguing about the appellant’s silence during the closing argument. The court allowed the arguments and the jury returned a verdict of guilty in the first degree and fixed appellant’s punishment at life imprisonment.

I.

We first consider the argument that the trial court erred in allowing the statement “I shot ‘Jiggs’ ” to be introduced into evidence. The Fifth Amendment to the Constitution of the United States prohibits a person from being required to testify against himself. It gives him the right to remain silent but it does not guarantee that he will remain silent. In the present case it is doubtful that appellant was in custody although he had attempted to surrender himself to the constable. When the constable asked what was the matter, he replied, “I shot ‘Jiggs’.” At the time this statement was made the appellant was in his own home in the presence of his own family and the only officer present was his son-in-law, the constable. The constable never did really take the appellant into custody. He did remind him not to say any more than he had already said. The Miranda warning was set up for the purpose of enforcing Fifth Amendment rights by requiring that certain warnings be given to suspects prior to “custodial” questioning or interrogation. The Fifth Amendment does not preclude voluntary statements by an accused. Beard v. State, 269 Ark. 16, 598 S.W. 2d 72 (1980). Certainly, we cannot say when the statement is viewed with all of the circumstances that the court’s ruling was against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).

II.

Appellant next argues that the prosecutor’s comments made during closing argument concerning his prior silence violated his constitutional rights against self incrimination. The prosecutor reminded the jury that the appellant had refused to make any statement at the time he was arrested and when he went to the doctor. A portion of the prosecutor’s closing argument is:

... No, he wasn’t going to tell them. No, huh-uh, and there is a very good reason for that because he done wrong. He done wrong, and he knew he had done wrong. * * * He will come before you in the calm and the cool of the courtroom and rationality, and he will surround himself with cloaks and with the constitution and with all its guarantees, and he will present his case to you, ladies and gentlemen of the jury, hoping your verdict will be rendered on sympathy because he claims to have a heart condition of some sort. * * * He will cloak himself with that and tell whatever he wants to because he’s free to say whatever he wants to because he didn’t say anything after it happened and is not liable for that.

Several other similar remarks were made by the prosecuting attorney during the closing argument. We believe these remarks amounted to prejudicial error, and that the case must be reversed on account of the argument of the prosecutor.

In the case oí Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court reversed the conviction because the prosecutor sought to impeach the accused’s testimony by referring to his silence after he was arrested. Mr. Justice Powell, speaking for the majority, stated:

We conclude that the use of the defendants’ post-arrest silence in this manner violates due process, and therefore reverse the convictions of both petitioners.

In reading this opinion we find that some of the questions asked of Doyle were the same questions as those asked of the appellant in the present case. We feel that Doyle is controlling in the present case.

We are not unmindful that the appellant made a motion in limine, prior to commencement of closing arguments, in which he sought to prevent the prosecution from making this type of argument. The court reasoned that the appellant had already taken the stand and waived his Fifth Amendment rights and that it would be proper to allow such statements in the closing argument. We think Doyle v. Ohio, supra, is controlling and that the statement should not have been allowed. This constituted prejudicial error. When a motion in limine is overruled, no further objection is needed.

III.

The third point argued is that the evidence was insufficient to support the verdict. We all know that the standards for sustaining a verdict on appeal is governed by the rule of viewing the evidence in the light most favorable to the appellee. Tatum v. State, 266 Ark. 506, 585 S.W. 2d 957 (1979). Since the evidence will no doubt be different in the next trial, we will not deal, further with this argument at this time.

Reversed and remanded.


author: Robert H. Dudley, Justice.

text:
    HARRELL MOTORS, INC. and CHRYSLER MOTORS CORPORATION v. Billy FLANERY
    80-241
    612 S.W. 2d 727
    Supreme Court of Arkansas
    Opinion delivered March 2, 1981
    [Rehearing denied April 6, 1981.]

      Gardner & Gardner, for appellant Chrysler Motors Corporation.

      Southern & James, by: Dennis L. James, for appellants.

      Mobley & Smith, by: William F. Smith, for appellee.
   Robert H. Dudley, Justice.

On September 11, 1973, appellee Billy Flanery purchased from appellant Harrell Motors a new 1973 Dodge Carry van which was manufactured by appellant Chrysler Motors Corporation. Two months later, while the van was being driven, the transmission jumped from drive into neutral. In January, 1974, appellee put the gearshift in park and left the motor running while he went into his place of business. When he returned the van had jumped out of park, gone into reverse, and backed across the street. Flanery testified that he reported all of this to Harrell Motors and he was informed there was a problem with the transmission linkage. The transmission continued to jump from drive to neutral while the van was being driven. On several occasions appellee took the vehicle to Harrell Motors to have the problem corrected. Then, on February 12, 1974, appellee backed the van to the loading dock at his place of business, left the engine running, put the gearshift in park, did not put on the emergency brake, and went to the rear of the van. The van began to back up and pinned appellee against the door of his loading dock, resulting in personal injury to appellee.

Flanery filed suit alleging that the transmission was improperly designed, manufactured or installed at the Chrysler factory and that Harrell Motors negligently failed or refused to repair the van despite numerous requests. The trial court, sitting without a jury, awarded appellee $10,-892.10, reduced by 10 percent because of his failure to set the emergency brake. Harrell Motors was found to be 30 percent negligent and Chrysler 60 percent negligent.

Chrysler contends that there was no evidence of a defect which caused appellee’s injury and that no defect was proved to exist at the time the car left Chrysler’s factory.

Ark. Stat. Ann. § 85-2-318.2 (Supp. 1979) does away with the necessity of proving negligence in order to recover for injuries resulting from a defective product. Southern Company, Inc. v. Graham, 271 Ark. 223, 607 S.W. 2d 677 (1980). While proof of negligence is no longer necessary, proof of the specific defect is normally required. Higgins v. General Motors Corporation, 250 Ark. 551, 465 S.W. 2d 898 (1971). However, proof of the specific defect is not required when common experience tells us that the accident would not have occurred in the absence of a defect. In such a situation there is an inference the product is defective, and it is up to the manufacturer to go forward with the evidence. Williams v.Deere & Company, 598 S.W. 2d 609 (Mo. App., 1980). On the second occasion the new van shifted from park to reverse and the appellee was injured. Common experience tells us that if the vehicle had been operating properly it would have stayed in park. Professor Prosser, in his hornbook, The Law of Torts, § 102, p. 672, 673 (4th Ed., 1971) discusses this situation now before us.

The difficult problems are those of proof by circumstantial evidence. Strictly speaking, since proof of negligence is not in issue, res ipsa loquitur has no application to strict liability; but the inferences which are the core of the doctrine remain, and are no less applicable. The plaintiff is not required to eliminate all other possibilities, and so prove his case beyond a reasonable doubt. As on other issues in civil actions, it is enough that he makes out a preponderance of probability. It is enough that the court cannot say that reasonable men on the jury could not find it more likely than not that the fact is true.
The mere fact of an accident, standing alone, as where an automobile goes into the ditch, does not make out a case that the product was defective, nor does the fact that it was found in a defective condition after the event, where it appears equally likely that it was caused by the accident itself. But the addition of other facts tending to show that the defect existed before the accident, such as its occurrence within a short time after the sale, or proof of the malfunction of a part for which the manufacturer alone could be responsible, may make out a sufficient case, and so may expert testimony.

There was evidence that the transmission had not properly functioned from shortly after the date of purchase. There was no evidence that the transmission had been altered, adjusted or interfered with from the date of delivery to the date of the accident. Hence, the trier of ¡fact could properly find that the defect existed when the van left the factory.

Harrell Motors contends there was no substantial evidence to prove that it performed a negligent adjustment of the transmission. The lower court found that Flanery requested that the transmission problem be corrected, yet no adjustment to the transmission was ever made. The trier of fact found, under these conditions, a negligent omission either to repair the transmission or to inform the appellee that the van was dangerous. Either of the negligent omissions was a valid basis for determining that appellant Harrell Motors was liable.

Chrysler contends that appellee assumed the risk by not applying the handbrake when he knew the transmission was defective. Flanery responds that he thought appellant Harrell Motors had repaired the transmission. Appellant Harrell Motors contends it is entitled to a judgment over and against appellant Chrysler.

The weighing of relative fault is peculiarly a jury function and will be disturbed only in rare instances if there is negligence by all parties. St. Louis Southwestern Railway Company v. Pennington, 261 Ark. 650, 553 S.W. 2d 436 (1977). Findings of fact by the trial judge will not be set aside unless clearly erroneous. Ark. R. Civ. P. 52. We cannot say the finding of the court that all parties were at fault in the varying percentages is clearly erroneous.

The trial court did not commit error in refusing to grant Harrell Motors a judgment over against Chrysler. A retailer having knowledge of a latent defect and omitting either to repair the defect or to inform the purchaser of the failure to repair is not entitled to a judgment over against a manufacturer for the portion of the damages assessed against the retailer.

Both appellants contest the award of damages by arguing that the trial court used an erroneous basis for the loss of earnings. Appellee testified that he lost 12 or 13 weeks’ work as a result of the accident and that his weekly income was from $700 to $1,000. There was no other evidence on the subject. The trial court took the lower figure and multiplied it by the lowest number of weeks to award lost earnings of $8,400. The award for loss of earnings is not clearly against the evidence.

Affirmed.