author: George Rose Smith Justice.

text:
    Garland Pat BULLARD v. STATE of Arkansas
    5705
    481 S.W. 2d 363
    Opinion delivered June 12, 1972

      Arnold & Arnold, and Frierson M. Graves, Memphis, Tenn., for appellant.

      Ray Thornton, Attorney General; Fred H. Harrison, Asst. Atty. Gen., for appellee.
   George Rose Smith Justice.

An assertedly obscene motion picture, “The Affairs of Aphrodite,” was shown sixteen time during one week in August, 1971, at the Capri Theater in Texarkana, Arkansas. The appellant, who was the theater’s manager and projectionist, was arrested and charged with having shown an obscene film. Upon trial by jury Bullard was found guilty and was sentenced to a fine of $2,000 and to imprisonment for 18 months, with the latter part of the sentence being suspended during good behavior. Bullard’s contentions for reversal involve almost every aspect of the case, from the validity of the charge to the accuracy of the court’s instructions to the jury.

The appellant makes two contentions which, if sustained, would result in a reversal of the judgment and a dismissal of the charge. We consider those points first, for if either one has merit all the other contentions become immaterial.

The appellant first questions the constitutionality of our statute prohibiting the showing of obscene films. Ark. Stat. Ann. § 41-2729 et seq. (Supp. 1971). The argument is that the statute is invalid because its definition of “obscene,” as set forth in § 41-2730, does not expressly state the three necessary elements of obscenity that have been recognized by the Supreme Court. Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966); Roth v. United States, 354 U.S. 476 (1957). Specifically it is insisted that the statute is fatally deficient in failing to declare that obscene films must be “utterly without redeeming social value.” Memoirs, supra.

The decision of a three-judge court in Shinall v. Worrell, 319 F. Supp. 485 (E.D. N.C. 1970), is cited to support this contention. There, however, the federal court contrasted its inability to go beyond the strict letter of a state statute with the broader powers exercised by a state court in the interpretation of its own laws. We agree with the Illinois Supreme Court’s conclusion that a measure such as the Arkansas statute is not constitutionally deficient, for it is not essential that the act “incorporate every nuance of constitutional dictum.” City of Blue Isalnd v. DeVilbiss, 41 Ill. 2d 135, 242 N.E. 2d 761 (1969). See also Entertainment Ventures v. Brewer, 306 F. Supp. 802 (M.D. Ala. 1969); Cambist Films v. Tribell, 293 F. Supp. 407 (E.D. Ky. 1968); and Grove Press v. Evans, 306 F. Supp. 1084 (E.D. Va. 1969). We are of the opinion that our statutory definition of “obscene” is sufficiently fair and comprehensive to meet the test of constitutionality. That same conclusion was reached with respect to our statute by a three-judge federal court in United Artists Theater Circuit v. Thompson, 316 F. Supp. 815 (W.D. Ark. 1970).

The appellant next argues that the prosecution should be dismissed because, it is contended, “The Affairs of Aphordite” is not an obscene film, as a matter of law. Here we think the issue plainly to be one of fact. According to the proof the film contains a succession of scenes in which acts of sexual intercourse are shown without reservation or inhibition. All the intimate parts of both men and women are displayed. It was the opinion of four witnesses for the State that the film is obscene. We certainly cannot say as a matter of law that the motion picture in question lacks obscenity.

Bullard also contends that the State’s case was fatally deficient, in that it was not explicitly proved that Bullard himself knew the actual content of the film that was being shown. The State proved, however, that Bullard was the manager and projectionist at the theater, which had only one other employee, and that the film was shown a total of sixteen times during the week that ended with Bullard’s arrest. That proof amply satisfied the State’s burden of establishing a prima facie case of scienter on Bullard’s part.

The appellant is correct in his contention that the trial court erred in refusing to suppress as evidence the copy of the film, The Affairs of Aphrodite, that was seized by Constable Paul Jewell when he arrested Bullard. Jewell attended the theater and saw the film on Monday. On Saturday night he returned to the theater and arrested Bullard after the final showing for the week. At the time of the arrest Constable Jewell took possession of the film, which was shown to the jury at the trial. Before the trial Bullard’s motion to suppress the film as evidence was overruled.

In recent years the Supreme Court has developed the rule that an allegedly obscene book or film cannot, consistently with the guaranties of the First Amendment, be seized by a police officer without a preliminary adversary hearing at which the obscene quality of the book or film is independently determined by a judicial officer. Lee Art Theater v. Virginis, 392 U.S. 636 (1968); A Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964); Marcus v. Search Warrant, 367 U.S. 717 (1961). The court reasoned in Marcus that there is a difference between the seizure of ordinary contraband, such as gambling paraphernalia, and matter, such as books, that may (if not obscene) be protected by the First Amendment. That constitutional difference requires that a judicial finding of obscenity, after an adversary hearing, precede the seizure.

Since the case must be retried we point out that the rule in question does not mean that no copy of the film can be used as evidence at the trial, as might be the case, for example, if an alleged murder weapon had been illegally seized without a search warrant. The rule involved in the case at bar goes no farther than the reason for its existence, which is to safeguard the public’s right of access to matter protected by the First Amendment. Consequently the federal courts, in developing the practical application of the rule, have not hesitated to point out that the prosecution may obtain copies of the challenged book or film for use at the trial, and that the accused may be prevented by appropriate order from destroying the suspect material or shipping it out of the jurisdiction. Demich v. Ferdon, 426 F. 2d 643 (9th Cir., 1970), judgment vacated upon another ground, 401 U.S. 990 (1971); Bethview Amusement Corp. v. Cahn, 416 F. 2d 410 (2d Cir., 1969), cert. den. 397 U.S. 920 (1970).

Upon another point of evidence the appellant insists (a) that the State should have been required to prove by expert testimony that the film was in fact obscene and (b) that lay testimony to that effect is not admissible. There is authority on both sides of the question, but we prefer the view that expert testimony is not essential and that lay testimony may suffice. People v. Pinkus, 256 Cal. App. 2d Supp. 941, 63 Cal. Rptr. 680 (1967); State v. Childs, 252 Ore. 91, 447 P. 2d 304 (1968), cert. den. 394 U.S. 931 (1969).

We are actually not convinced that there is any such person as an expert on obscenity. The field is not a professional one, such as medicine or engineering, where expert testimony is readily available. Here the defendant offered as experts on obscenity two professors of English at the University of Arkansas. They were doubtless more familiar than the average person with avant-garde literature and art, but that fact certainly does not demonstrate that they are better able than lay witnesses to describe for the jury what is considered to be obscene in a community such as Texarkana. We therefore hold that lay testimony on the subject is admissible and that expert testimony is not indispensable.

Finally, the appellant questions the accuracy of the trial court’s instructions to the jury. With respect to the standard that is to be followed in the determination of what is obscene, we adhere to our previous holding that a national standard is not necessarily controlling. Gent v. State, 239 Ark. 474, 393 S.W. 2d 219 (1965), reversed on other grounds sub nom. Redrup v. New York, 386 U.S. 767 (1967). We do agree, however, that the court erred in not including all three elements of the Supreme Court’s definition of obscenity in its instructions to the jury, for without such an instruction the defendant is deprived of his right to argue to the jury that the film is not obscene because, for example, it is not utterly without redeeming social value.

Reversed and remanded for anew trial.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Ralph BROPHY et al v. John E. MAHAFFEY & Associates, Inc.
    5-5926
    481 S.W. 2d 360
    Opinion delivered June 12, 1972

      Charles W. Atkinson, for appellant.

      Jones & Segers, for appellee.
   Lyle Brown, Justice.

Appellants, Ralph Brophy and Ottis Watson, were the developers of a mobile home park in or near Fayetteville. They engaged the services of appellee, John E. Mahaffey & Associates, Inc., to perform preliminary engineering services incident to the development. The contract was oral. Appellee filed this suit to recover its fee. The jury awarded appellee $5,124, the amount of the claim. Appellants here attack the substantiality of the evidence, the inadmissibility of certain testimony, the correctness of the instructions, and certain statements of the trial court which they say amounted to a comment on the evidence.

The first three points can be treated together. They are concerned with the sufficiency of the evidence. It is there contended that the court should have directed a verdict at the close of appellee’s testimony; that the jury verdict is contrary to the evidence; and that the verdict is contrary to law. We therefore summarize the evidence presented.

Appellants owned a forty-acre tract of land upon which they desired to establish a modem mobile home trailer park. In August 1969 they employed appellee to do the preliminary engineering work and prepare plans and specifications to be submitted to the Federal Housing Administration for a substantial loan. Appellee was engaged in the work at various intervals from August 15, 1970, until January 9, 1971. That work consisted of various conferences between the parties; seven and one-half days of field work by six different employees; the making of map locations of streets, utilities, and boundaries; the performing of a topography survey; locating a water main and possible access road; preparing cost estimates; preparing plans to be submitted to FHA; and executing FHA forms. The first FHA application was rejected and additional work was done by appellee before the application was finally approved. The commitment was for the supplying of funds in excess of $200,000.

Appellee Mahaffey testified that the fee was calculated on the basis of the fee schedule promulgated by the Arkansas Society of Professional Engineers; that the amount billed was the minimum under the schedule; and that members of the Society were not permitted to go below the minimum. Mahaffey explained that he could take one of two approaches under the fee schedule in making the calculation and that he used the approach which cost his clients the least amount of money. The testimony we have summarized, together with other evidentiary matters which will be related in our discussion of other points, leaves no doubt but that appellee made a question of fact for the jury.

Appellants assign as error the fact that Ralph Brophy was instructed to answer the question of the amount appellants received when they sold the property. That amount was $140,000. We think the amount of the sale price would aid the jury in resolving the question of reasonableness of appellee’s fee. Such information is often introduced as an element for consideration in fixing legal fees. Saad v. Arkansas Trust Co., 225 Ark. 33, 280 S.W. 2d 894 (1955). Likewise, we see no error in permitting the engineer who did the final engineering work-up for the successors in title to appellants, to testify that his fee was in excess of $18,000. A comparison of his fee with that of appellee could have shed some light on the reaonableness of appellee’s fee.

Appellants attack three instructions. First, it is pointed out that the court did not tell the jury that the burden was on appellee to establish his case by a preponderance of the evidence. Appellants did not request such an instruction (insofar as a perusal of the abstract reveals), nor was any objection raised at the time the court instructed on burden of proof. The next point raised on instructions is “The court told the jury that the appellee’s right to recover was based on quantum meruit but failed to set out what appellee must prove to recover under that principle.” In the first place the court was not asked to define “quantum meruit,” nor was there any objection to the instruction. In fairness to the court it should be stated that the instruction, taken as a whole, told the jury that they were to determine the amount of recovery founded on a reasonable basis. The instruction uséd “quantum meruit” interchangeably with the phrase “the reasonableness of the charge."

Next, an objection was made to the form of the verdict. Only one form was given: “We the jury find for the plaintiff and fix his recovery at $ — .” Appellants insist that the jury should have been given a form wherein they could find for the defendants (appellants). The court committed no error. Appellants conceded that they were indebted to appellee in some amount and only contended that the amount sought was wholly unreasonable. When appellants made an objection to the form of verdict the court stated that appellants admitted that they owed some amount. We perceive no error in the comment.

Affirmed.


text:
    Eddie RUSH v. STATE of Arkansas
    5726
    481 S.W. 2d 696
    Opinion delivered June 12, 1972
    [Rehearing denied July 17, 1972.]

      Wommack ¿r Lineberger, by: Erwin L. Davis, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was found guilty of assault with intent to kill. When the prosecuting witness completed her direct examination she was asked if she had made a statement to police officers and she answered in the affirmative. Thereupon counsel for appellant asked that the prosecuting attorney furnish appellant’s counsel with a copy of the statement. The request was refused and appellant contends the State, in failing to comply with Ark. Stat. Ann. § 43-2011.3 (Supp. 1971), committed reversible error.

The statute to which we refer comes from Acts 1971 Act 381. The section is identical with 18 U.S.C.A. § 3500 and is known as the “Jencks Act.” It was enacted after the decision in Jencks v. United States, 353 U.S. 657 (1957). Succinctly stated, § 43-2011.3 (a) and (b) provide that when a witness called by the State has testified on direct examination the State, on motion of the defendant, shall produce any statement of the witness in possession of the State which relates to the subject matter to which the witness had testified.

When Miss Andrea Jones, the prosecuting witness, completed her direct examination she was asked by appellant’s counsel if she had given a statement to the prosecution. It developed that she had made a statement to Officer Hutchens at the hospital the morning following the stabbing. The prosecuting attorney replied that he did not have the statement and would have to check with the officers. The trial court interjected that appellant’s counsel could ask the policemen about it when he took the witness stand. Appellant’s counsel noted his objections to the ruling of the court and specifically cited § 43-2011.3.

The Court of Appeals, District of Columbia, was faced with a very similar fact situation in the case of Leach v. U.S., 320 F. 2d 670 (1963). In a robbery prosecution, after direct examination of a witness called by the government, defendant moved for production of witness’s statement made to police. The prosecutor indicated that he did not have the statement. Thereupon the court instructed defense counsel that he could ask the policeman for the statement when “he takes the stand.” The Court of Appeals said that was error; that it was the duty of the trial court to conduct any inquiry which was necessary to aid the court to discharge its responsibility under § 3500; and that it was error to require the defense counsel to proceed with cross-examination without the statement. However, the court made this statement: “We find the error here to be harmless. When the policeman took the stand, the entire police file was produced and made available to defense counsel. After counsel read the file, the matter of the statement was not pursued.”

The same occurrence took place in the case at bar. Officer Hutchens followed Miss Jones on the witness stand. He produced Miss Jones’s statement at the request of defense counsel. Later, Miss Jones was recalled to the stand and she was not examined relative to the statement. On the strength of the decision in Leach we find the error to be harmless.

Affirmed.


author:
John A. Fogleman, Justice.
      Conley Byrd, Justice,

text:
    INTERNATIONAL HARVESTER COMPANY v. BURKS MOTORS, INC.
    5-5906
    481 S.W. 2d 351
    Opinion delivered June 12, 1972
    [Rehearing denied July 17, 1972.]

      Wright, Lindsey & Jennings, for appellant.

      Wootton, Land ir Matthews, and Whetstone & Whetstone, for appellee.
   John A. Fogleman, Justice.

This appeal is a sequel to International Harvester Company v. Pike, 249 Ark. 1026, 466 S.W. 2d 901, and Burks Motors, Inc. v. International Harvester Company, 250 Ark. 29, 466 S.W. 2d 907, Supplemental Opinion on Rehearing, 250 Ark. 641, 466 S.W. 2d 943. The factual background is adequately stated in those opinions. In the first opinion, we reversed a judgment for personal injuries and property damage suffered by Earl Pike against International due to the failure of the trial court to grant a mistrial because of prejudicial remarks during closing arguments, and to submit the issue of Pike’s negligence to the jury. It was there recognized that Burks Motors had filed its separate appeal on a single point which was adverse to International; that the question submitted as to Burks’ liability to Pike was based on the issue of negligence only, while International’s liability hinged on either negligence or implied warranty or both; and that, as between International and Burks the total responsibility was fixed at 91% on International and 9% on Burks, and as between negligence in design and negligence in repair, the jury’s allocation was 90% and 10%, respectively.

Burks appealed from the judgment on its prayer for contribution under the Uniform Contribution Among Tortfeasors Act [Ark. Stat. Ann. § 34-1001, et seq. (Repl. 1962)] against International for 91% of the judgment against it, contending that it was entitled to a greater contribution. Burks only sought a modification, not a reversal of that judgment. The judgment was based upon answers to interrogatories by which the jury found both International and Burks guilty of negligence which was a proximate cause of the injuries and damage and allocated the responsibility as above set out. We refused the prayer for modification.

In a petition for rehearing and clarification, Burks asked that we state that its judgment against International for contribution was final and binding between these parties by reason of the judgment itself and International’s failure to seek contribution from Burks or to ask reversal of that judgment on appeal. International filed a petition for amplification of the opinion on Burks’ appeal asking that we declare that the entire judgment against it was reversed and remanded and that as a result the judgment for contribution was nullified. A similar petition was filed in its own appeal, claiming that unless and until there was an adjudication of liability against International on retrial, it could not possibly be a joint tortfeasor from whom contribution could be obtained. Burks also filed a petition for rehearing asking that we state that the judgment against it was reversed and remanded so that Pike would have no judgment against Burks, or, in the alternative, that we state that it was entitled to a 91% contribution from International.'

In our supplemental opinion on rehearing, we unanimously held that the judgment against Burks must be affirmed. By a division of four to three, we held that International had waived the point that there was error in the assessment of the liability between it and Burks. We said that point raised by the post-opinion motions other than that pertaining to finality of the judgment against Burks depended upon future developments and that they must be litigated in the trial court in the light of those developments, pointing out that Burks could not be entitled to a money judgment against International under any circumstances until Burks had either paid the judgment or discharged more than its pro rata share. We denied the petitions for rehearing except as to the finality of the judgment against Burks and as to Burks’ entitlement to a money judgment. Our mandate recited the affirmance of the Burks judgment against International.

Matters decided by us on the Burks appeal and on the petitions for rehearing are the law of the case and govern our action on this appeal to that extent, even if we were now inclined to say that we were wrong in those decisions. Farmers Cooperative Assn. v. Phillips, 243 Ark. 809, 422 S.W. 2d 418. See also, Arkansas State Highway Comm. v. Lemley, 250 Ark. 186, 464 S.W. 2d 605; Wilson v. McDaniel, 250 Ark. 316, 465 S.W. 2d 100; Sigmon Forest Products, Inc. v. Scroggins, 250 Ark. 385, 465 S.W. 2d 673; St. Louis Southwestern Ry. Co. v. Jackson, 246 Ark. 268, 438 S.W. 2d 41. Nothing is before us for adjudication but the proceedings subsequent to our mandate. Fortenberry v. Frazier, 5 Ark. 200, 39 Am. Dec. 373, relied upon in St. Louis Southwestern Ry. Co. v. Jackson, supra.

After the filing of the mandate, the circuit court on July 30, 1971, credited the judgment against Burks with the payment on June 22, 1971, to Pike by National Union Insurance Company, a liability insurance carrier for Burks, of $65,887, consisting of $50,000 for bodily injuries, $10,000 for property damage and $5,887 accrued interest. This judgment allowing the credit contained a recitation that the payment in no way abrogated or interfered with the right of Burks or National Union to recovery over against International Harvester, Hendrickson Mfg. Co., O & S Co. or any other parties'made third party tortfeasors in the actions.

On the same date Burks filed its motion for summary judgment against International asking for a money judgment of $59,957.17, which Burks alleged was 91% of the amount paid Pike. International replied that substantial fact issues existed. It contended that, since there was no judgment against it in favor of Pike, International could not be said to be a joint tortfeasor with Burks, until there is such a judgment or some judgment finding that it is a joint tortfeasor. Subsequently, International filed a cross-complaint against Burks, seeking judgment over against Burks for $20,000 paid by International to Pike as a settlement and compromise of his claim. International denied any liability to Pike and alleged that in consideration of its $20,000 payment, Pike executed a release which extinguished Burks’ liability to him. International also alleged that there was a disproportion of fault between it and Burks and that the release of Burks entitled International to contribution from Burks as a joint tortfeasor under Ark. Stat. Ann. § 34-1001, the amount and proportion of which should be determined in this action. The circuit court granted Burks’ motion and rendered a money judgment in its favor for $57,527.17, on the basis of the original judgment for 91% contribution by International.

International contends that there are material fact issues to be litigated in a new trial and that the question of contribution cannot arise until it has been established in a new trial that International is liable to Pike. Appellant argues that the contribution claimant must first prove that the contribution defendant was originally liable to the injured party before the question of contribution can arise. There are two flaws in this argument. First, appellant overlooks the fact that these very matters were at issue on the first trial, and are settled by the law of the case, if not res judicata. The jury verdict was on interrogatories. The jury found that Burks and International were both negligent and that the negligence was ■ a proximate cause. We stated in the supplemental opinion on rehearing that International had waived its contention in its motion for new trial that the judgment against it in Burks’ favor was erroneous by failure to press the point on appeal. We did not consider International’s contention that Burks’ negligence was an efficient intervening cause, as a matter of law, relieving it of any liability, to be an attack on the apportionment of liability. We rejected that contention on International’s appeal. That is the law of the case and is binding, not only on the parties but on the courts. As a result, as between International and Burks, the two were found to be joint tortfeasors and their contribution determined. We pointed out that a money judgment was not proper until Burks had paid more than its pro rata share. This, it has now done. In Wymer v. Dedman, 233 Ark. 854, 350 S.W. 2d 169, we held that a judgment against the tortfeasor from whom contribution was sought was not essential, where the percentage of negligence between the joint tortfeasors had been established in an action to which both were parties, even though the injured party did not file an action against the tortfeasor from whom contribution was sought, much less obtain a judgment against him. We said that when the tortfeasor seeking contribution paid the judgment against it, and filed motion for contribution the court should allow it for that percentage of the payment the jury had fixed as the percent of negligence attributable to the tortfeasor not sued.

The second fallacy in appellant’s argument arises from another development subsequent to our mandate. International, by its own pleading for contribution by Burks on its $20,000 settlement, alleges that it is entitled to contribution from Burks as a joint tortfeasor under Ark. Stat. Ann. § 34-1001, et seq. But International is not entitled to contribution from Burks unless they are joint tortfeasors. Ark. Stat. Ann. § 34-1001 defines the term as follows:

For the purpose of this act the term “joint tortfeasors” means two [2] or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.

Ark. Stat. Ann. § 34-1002 provides for the right of contribution among joint tortfeasors, and specifically prohibits recovery of contribution by one who makes a settlement from one who is not released from liability by the settlement. A party litigant is bound by his pleadings and the allegations therein and cannot maintain a position inconsistent therewith. Arkansas-Louisiana Gas Co. v. Maxey, 245 Ark. 15, 430 S.W. 2d 866; Harger v. Oklahoma Gas & Electric Co., 195 Ark. 107, 111 S.W. 2d 485, cert. denied, 304 U.S. 569, 58 S. Ct. 1038, 82 L. Ed. 1534; Faulkner v. Faulkner, 186 Ark. 1009, 287 S.W. 2d 818. The court had a right to rely upon the statements and allegations in the pleadings before it. Burns v. Meadors, 225 Ark. 1009, 287 S.W. 2d 893. To say the least, the position now argued by appellant is inconsistent with its cross-complaint to recover all or part of its $20,000 payment to Pike from Burks as a joint tortfeasor. A litigant is not permitted to assume wholly inconsistent positions on the same issue in the same case. Rudolph v. Kelly, 44 Ark. 296, 222 S.W. 2d 42.

Appellant also contends that the judgment against it is excessive in that it is not liable for the interest paid by Burks, or its liability insurance carrier, to Pike. Neither party has favored us with any authorities on the subject. We do not agree that International is relieved from the payment of any interest. Burks paid interest accrued to June 22, 1971. We have recognized that the right to contribution among tortfeasors is governed to some extent by equitable principles. Hazelrigg v. Enterprise Box Co., 208 Ark. 124, 185 S.W. 2d 709. Cases touching upon the subject, of which we are aware, all indicate that interest runs on the payment made from the date of payment to which contribution is sought. See Employers Mut. Liability Ins. Co. v. Derfus, 259 Wis. 489, 49 N.W. 2d 400, 27 A.L.R. 2d 1264 (1951), and following annotation; 18 Am. Jur. 2d 151, Contribution § 114. We have recognized this rule and applied it in a case involving indemnity. Kincade v. C. L. Rural Electric Cooperative Corp., 227 Ark. 321, 299 S.W. 2d 67. Yet, the question here is not whether Burks is entitled to interest on the amount paid by it. It is rather whether it is entitled to recover interest paid on the judgment against it. It is not inequitable to require International to contribute to the interest paid in this case, where no interest on Burks’ payment between the date of payment and the date of the money judgment was allowed and where no more than the legal rate of interest [Const. Art. 19, § 13, Ark. Stat. Ann. §§ 29-124, 125 (Repl. 1962)] was paid by Burks. If there were a compounding of interest or interest at a rate higher than 6% per annum had been charged, we might have a different problem. But here International is not called upon to contribute one cent more than it would if Burks had paid the judgment the day it was rendered under the rule above stated and which we have previously recognized. We cannot say, under the circumstances, that the judgment was excessive.

The judgment is affirmed.

Harris, C. J., and Byrd and Holt, JJ., dissent.

Conley Byrd, Justice,

dissenting. The majority has ignored the provisions of the Uniform Contribution Among Tortfeasors Act, Ark. Stat. Ann. Sec. 34-1002 (Repl. 1962), which denies a joint tortfeasor contribution until “he has discharged the COMMON LIABILITY or has paid more than his pro rata share thereof.” The exact language of the statute is as follows:

“(2) A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the COMMON LIABILITY or has paid more than his pro rata share thereof.” (Emphasis mine).

In this case there is no adjudicated “common liability” because in International Harvester Company v. Pike, 249 Ark. 1026 (1971) we reversed the joint or common liability of International. In doing so we held that International had the right to have the comparative negligence of Pike submitted to the jury. We also told International that because of the reversal it was unnecessary for us to discuss its asserted error whereby the trial court permitted the jury to raise its first findings of damages of Pike’s personal injuries from $19,000 to $70,000.

The majority’s reliance upon Wymer v. Dedman, 233 Ark. 854, 350 S.W. 2d 169 (1961) is not well founded —in that case there was an adjudicated “common liability.” Here the adjudicated “common liability” of International has been reversed and set aside for a new trial.

When the majority speaks of the law of the case, I’m at a loss to understand why- the opinion styled International Harvester Company v. Pike, 249 Ark. 1026, is not a part of the law of this case also, for by order of this court it was consolidated with Burks Motors Inc. v. International Harvester Company, 250 Ark. 29, 466 S.W. 2d 907 (1971) before submission. At the time the so-called clarification opinion was written on rehearing, 250 Ark. 641, Burks had not paid more than its pro rata share of the COMMON LIABILITY and of course any decision at that time with reference to whether it was entitled to contribution from International was not a justiciable controversy before this court. Thus the so-called clarification was nothing more than obiter dictum on that issue and for that reason, I’m at a loss to understand why we should declare it to be the law of the case.

For the reasons stated here and in 250 Ark. 641, I respectfully dissent.


author: John A. Fogleman, Justice.

text:
    James MILLER v. Amos EVERETT and William B. NEWBY and SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY
    5-5934
    481 S.W. 2d 335
    Opinion delivered June 12, 1972

      Macon, Moorhead ir Green, for appellant.

      Daggett ir Daggett, for appellees.
   John A. Fogleman, Justice.

Appellant James Miller received a compensable injury on October 25, 1968, while employed by Everett and Newby. Appellee Southern Farm Bureau Casualty Insurance Company, the employer’s compensation carrier (to which we will refer as the appellee), made certain voluntary payments to the claimant for temporary compensation through January 3, 1969. Also paid by the carrier were medical expenses incurred by appellant up to December 11, 1968. The last payment made was by a draft dated January 6, 1969, which covered temporary compensation payments from December 15, 1968, through January 3, 1969. On February 19, 1969, Charles B. Mills, appellee’s District Claims Supervisor, wrote the Workmen’s Compensation Commission advising it that Southern Farm Bureau had made all payments required by the act and that it would controvert any compensation or medical bills incurred on or after December 11, 1968. Appellant was informed of Southern Farm Bureau’s action by a letter from the commission dated February 24, 1969. No action was taken by appellant until December 31, 1970, at which time his present attorneys filed a claim for payment of medical expenses incurred by appellant from December 11, 1968, through January 15, 1969. This claim was denied by the referee for failure to bring an action for additional compensation within the prescribed statutory period. Ark. Stat. Ann. § 81-1318 (b) (Supp. 1971). That decision was affirmed by the full commission and was again affirmed on appeal to the circuit court. On appeal we review the decision of the commission. Lane Poultry Farms v. Wag oner, 248 Ark. 661, 453 S.W. 2d 43. We agree that the claim was barred.

Appellant argues that his claim for payment of medical and hospital bills incurred from December 11, 1968, through January 15, 1969, was not a claim for additional compensation under § 81-1318 (b) but rather a claim for medical and hospital expenses accruing within the six-month period after the injury. See Ark. Stat. Ann. § 81-1311 (Repl. 1960). In a similar situation we rejected the theory that, because medical bills are a part of compensation, the one-year limitation would not begin to run until the last such bill was paid. Phillips v. Bray, 234 Ark. 190, 351 S.W. 2d 147. In Phillips, we said, “No one can reasonably contend that a doctor could, by carelessness or connivance, keep the case in suspense for an unlimited time by merely failing to present his bill to the Commission. It seems perfectly obvious that the primary purpose of the one-year statute of limitations is to give the claimant that much extra time in which to decide whether he has been fully compensated for his injury, and not for the purpose of paying belated medical bills.” The same holds true in this case. Appellant cannot toll the statute of limitations by alleging that his claim is not for additional compensation when he did not present it for more than one year after the last payment was voluntarily made by appellee.

Although at one point in his argument appellant seems to concede that his claim is barred by § 81-1318 (b), he contends that appellee knew of these expenses for which it was allegedly liable at the time it sent its letter to the commission controverting any further payments to appellant. It would appear then that appellant is contending in the alternative that the running of the statute of limitations was tolled by appellee’s wrongful refusal to make further payments.

A claim for additional compensation must be filed within one year from the date of the last payment of compensation or two years from the date of the accident, whichever is greater, Ark. Stat. Ann. § 81-1318 (b), unless there is some action on the part of the employer or the compensation carrier which will toll the statute or will estop either from asserting it as a defense. McFall v. United States Tobacco Co., 246 Ark. 43, 436 S.W. 2d 838. The correctness of appellee’s assertion that it would not be liable for payments accruing after December 11, 1968, was a question that appellant was entitled to litigate before the Workmen’s Compensation Commission. Appellant was apprised of this right in the letter sent from the commission dated February 24, 1969. Appellant testified that he knew that appellee intended to make no further payments and that he went to see a lawyer (other than his present counsel) about his claim, but this lawyer never filed a claim in his behalf. This claim was not instituted until December 31, 1970, and then only by appellant’s presently retained counsel who were employed in late December of the same year. Appellant made no claim that any act of appellee caused him to delay in filing his claim, or misled him or that any fact was concealed from him, nor does he contend that the commission’s finding to the same effect is not supported by substantial evidence.

It would appear then that appellant’s theory is that it is basically unfair to allow a party to escape his liabilities by pleading the statute of limitations. But this is not enough. There must have been a showing by the appellant that his failure to bring his cause of action within the prescribed time was due to some action of the appellee, or that some other event tolled the statute. Phillips v. Bray, 234 Ark. 190, 351 S.W. 2d 147; McFall v. United States Tobacco Co., supra. The statute of limitations applies with full force to the most meritorious claims, and the court cannot refuse to give the statute effect merely because it seems to operate harshly in a case involving an obviously meritorious claim. Abbott, Adm. v. Johnston, 130 Ark. 1, 195 S.W. 676.

We are not unmindful of appellant’s argument that pursuant to Phillips, supra, the commission has the authority to order payment of a doctor’s claim whether or not it was filed in accordance with § 81-1311. Even if the commission had authority to do this, it did not do so in this case, and we cannot extend the statute of limitations on appeal. McFall v. United States Tobacco Co., supra. There is nothing here to indicate that the hospital whose bills constitute a part of this claim had withheld its bills or neglected to submit them. Actually they were submitted to appellee, who advised the hospital that they should be submitted to appellant. Furthermore, the only question presented to the commission was whether the claims were barred by limitations. In Phillips there does not appear to have been an issue as to the application of the statute to the doctor’s bill. The only question was whether the failure of the doctor to submit his bill tolled the statute of limitations provided in Ark. Stat. Ann. § 81-1518 (b). We held that it did not.

Appellant’s failure to take the appropriate steps within the one-vear period bars him from making this claim for additional compensation. The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    Charles GARDNER v. STATE of Arkansas
    5720
    481 S.W. 2d 342
    Opinion delivered June 12, 1972

      Ruud L. DuVall, for appellant.

      Ray Thornton, Atty. Gen., by; John D. Bridgforth, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Charles Gardner was arrested on April 9, 1971, and lodged in the Craighead County Jail at Jonesboro. On April 13, 1971, he was charged on information filed by the prosecuting attorney, with two counts of violating the Arkansas Hot Check Law in Craighead County, Arkansas. He was unable to make bond in the amount of $1,500 so he remained in jail. When his case finally came on for trial on November 15, 1971, he moved for a dismissal of the charges pending against him for the reason that he had been denied the right to a speedy trial under the Sixth Amendment of the United States Constitution, and under Art. 2, § 10 of the State Constitution. The motion to dismiss was denied by the trial court and Gardner has appealed. He contends that two terms of the Craighead County Circuit Court had expired while he was incarcerated in the county jail and he was entitled to a dismissal of the charges against him as a matter of law under Ark. Stat. Ann. § 43-1708 (Repl. 1964). Gardner also contends that the trial court erred in not giving him a speedy trial in compliance with this court’s per curiam order of June 28, 1971, rendered under authority of Act 470 of 1971.

The problem involved here is common to several judicial circuits in Arkansas as well as courts in other states. The overall problem is congested dockets both criminal and civil. To meet the expanding caseload in the various judicial circuits in Arkansas, some of the circuits have been divided into separate divisions with separately elected judges for each division. Craighead County is a part of the second circuit which was divided into three divisions by Act 505 of the Acts of 1965, Ark. Stat. Ann. § 22-322.10 (Supp. 1971). The statute designated the divisions as first, second and third divisions with the first division designated as criminal and the other two as civil. A provision of this same Act digested as § 22-322.11 provides as follows:

“Judges elected to specific numbered divisions — Each may serve in other divisions. — The three (3) Circuit Judges shall hold the courts in the respective divisions at the times and places as herein provided, and their successors shall severally do the like. The Judges shall be nominated and elected to a specific numbered division of the court, but this shall not be deemed an enlargement nor a diminution of their powers as Circuit Judges to try and dispose of any litigation or matter which falls within the jurisdiction of the Circuit Court.”

This Act further provides (§ 22-322.12):

“The Circuit Court Clerks of each of the courts in the several counties shall keep and maintain two [2] separate dockets, one [1] for criminal cases and one [1] for civil cases, and each case filed shall be entered in the proper docket. The Judge of the First Division shall preside over cases assigned to the Criminal Docket and the Judges of the Second and Third Divisions shall preside over cases assigned to the Civil Docket. During each term of either division of the Circuit Court the presiding Judge, by appropriate orders, may assign in the first instance, or reassign, any case, Criminal or Civil, from one docket to the other as may be found best for the dispatch of business. The Judges of the three (3) divisions will alternate in the holding of courts in the three (3) divisions so that each judge will hold approximately one-third [1/3] of the first division (criminal) terms in each county of the district, and two-thirds [2/3] of the second and third division (civil) terms in each, county of the district.”

Thus, it is abundantly clear that one of the main purposes and intended effect of the Act, was to permit the trial judges to transfer cases either civil or criminal from one division to the other so that the litigants in civil cases may obtain justice promptly and without delay, and so that the accused in criminal prosecutions may enjoy the right to a speedy and public trial. The various terms of the circuit courts are fixed by statute. Ark. Stat. Ann. § 22-310 (Supp. 1971) as it applies to the terms of court in Craighead County, is as follows:

“Craighead County, 2nd circuit.
Jonesboro District.
Terms, 1st division (criminal), on the 3rd Monday in April and the third Monday in November, 2nd division (civil), on the 2nd Monday in May and the 1st Monday in July; 3rd division (civil), on the 2nd Monday in January and the 2nd Monday in October.”

Returning now to the case at bar, on September 21, 1971, Gardner filed a petition in the Craighead County Circuit Court, alleging that he had been incarcerated while awaiting trial since his arrest on April 9, 1971. In the petition he claimed his right to a speedy trial and prayed that his case be transferred from the criminal docket to the civil docket, and that he be tried in the term of court commencing October 11, 1971. In support of his petition for a transfer to the civil docket, the petitioner attached a memorandum brief reciting § 22-322.11 and § 22-322.12, supra, and also set out the per curiam order of this court entered June 28, 1971, pursuant to the provisions of Act 470 of 1971. On September 22, 1971, the judge of the criminal division of the Craighead Circuit Court denied Gardner’s petition to transfer, because of the congestion of the civil docket for the upcoming term commencing on October 11, 1971.

In the motion to dismiss, filed on November 11, 1971, Gardner stated that he had been incarcerated in the Craig-head County jail for a period approaching eight months; that he had been at all times demanding a speedy trial which had been denied him. He alleged that he had demanded a trial by letter to the prosecuting attorney on July 9, 1971, and had filed a petition for transfer of his case to the civil division of the second circuit court so that he could obtain a speedy trial, and he again called the trial court’s attention to our per curiam entered on June 28, 1971. Gardner alleged that there had been one criminal and three civil terms of the Craighead Circuit Court during the time he had been incarcerated, and that he was entitled to a dismissal of the charges against him under the provisions of Ark. Stat. Ann. § 43-1708 (Repl. 1964) which is as follows:

“Time accused may be kept in jail. — If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.”

In the trial court’s order denying Gardner’s motion to dismiss, the court found that the per curiam order of this court entered on June 28, 1971,

“does not alter the existing statutory law pertaining to the jurisdiction of the various Divisions of the Second Judicial District’s Circuit Courts.”

The per curiam order above referred to is as follows:

“Pursuant to the provisions of Act 470 of 1971 the following rules are hereby promulgated by the Supreme Court of Arkansas in order that the ends of justice may be more efficiently and expeditiously served.
I
All courts of this state having jurisdiction of criminal offenses shall henceforth, except for extraordinary circumstances, give precedence to the trials of criminal felony offenses over other matters before said courts.
II
All courts of this state having jurisdiction of criminal offenses shall henceforth, in the absence of unusual or exceptional conditions requiring the expeditious trial of an accused person free on bail, give precedence to the trials of those criminal offenses in which the accused person is incarcerated by the state pending said trial.”

The trial court was correct in stating that this per curiam order does not alter the existing statutory law pertaining to the jurisdiction of the various divisions of the second judicial district’s circuit courts. The above per curiam only aids in the full compliance with the intent and purpose of Act 470 of 1971 under the jurisdiction the courts already have under Ark. Stat. Ann. § 22-322.12, supra. It has long been recognized by members of the bench and bar that our judicial machinery designed for more orderly times is ill equipped to handle the prolonged litigation in the volume and variety now placed upon it. Judges in all the states have observed with growing alarm, court machinery completely bogged down in lengthy and complicated litigation while litigants in civil cases clamor for a place on the trial calendar; and while those accused of crime are forced to languish in jail or are released on bond and permitted to roam free in the area of their apprehension while awaiting trial for a determination of whether they are guilty or not guilty of the charges against them. The people generally have recognized the problem in Arkansas and have responded through the legislature by enactment of such statutes as § 22-322.12, supra, and by such supplementary legislation as Act 470 of 1971. The pertinent first section of Act 470 provides as follows:

SECTION 1. The Supreme Court of the state of Arkansas shall have the power to prescribe, from time to time, rules of pleading, practice, and, procedure with respect to any or all proceedings in criminal cases and proceedings to punish for criminal contempt of court in all the inferior courts of law in this state.” (Emphasis added).

The recognition and concern of the legislature with the problem involved is evidenced by the emergency clause to Act 470 which is as follows:

“The General Assembly finds that pleading, practice, and procedure in criminal cases and proceedings in the inferior courts of law of this state is not efficient, certain, or responsive to the reasonable expectations and legitimate needs of the people of this state; that the system of administering criminal justice in the state of Arkansas is in need of immediate reform; and, that the immediate passage of this act is necessary to empower the Supreme Court of the state of Arkansas, which the General Assembly finds to be the proper authority for prescribing rules of pleading, practice, and procedure in criminal cases and proceedings in the courts of this state, to effectuate such needed reforms. Therefore, an emergency is hereby declared to exist and this act being immediately necessary for the preservation of the public peace, health, and safety shall be in full force and effect from and after March 1, 1971.”

It was the purpose and intent of our per curiam order to facilitate by rules of this court, under the authority if not the mandate of Act 470 of 1971, speedy trials in criminal cases under the authority already vested in the trial courts and under the existing statutory law pertaining to the various divisions of multiple-division circuit courts. The only effect of our per curiam order was to require, except for extraordinary circumstances, that the trial of criminal felony cases take precedence over other matters before the courts and as between the criminal cases, those cases in which the accused is incarcerated while awaiting trial, take precedence over cases where the accused is free on bond.

We now return to Gardner’s primary contention that he is entitled to his release as a matter of law under the statute. In addition to § 43-1708, supra, pertaining to an accused who is in prison, a similar provision appears as Ark. Stat. Ann. § 43-1709 (Repl. 1964) relating to an accused who is free on bail. Section 43-1709 is as follows:

“If any person indicted for any offense, and held to bail, shall not be brought to trial before the end of the third term of the court in which such indictment is pending, which shall be held after the finding of such indictment, and such holding to bail on such indictment, he shall be discharged, so far as relates to such offense, unless the delay happened on his application.”

We, of course, are not unmindful of the following section, Ark. Stat. Ann. § 43-1710 (Repl. 1964), as follows:

“Nothing in the two preceding sections shall be so construed, as to discharge any person who may have been indicted for any criminal offense, on account of the failure of the judge to hold any term of the court, or for the want of time to try such person at any term of the court.”

These three sections have been a part of the Criminal Code of Arkansas since ancient times in our state judicial history, (see Revised Statutes of Arkansas 1837-38, Chapter XLV, §§ 169, 170, 171). They amount to a statutory limitation on the time an accused may be kept in jail or on bond awaiting trial when courts are in session and the judges have time to try the cases. If these sections were applicable to the proper administration of criminal justice over 100 years ago, they are no less applicable now, but they were obviously not enacted with overlapping terms of multi-division circuit courts in mind; so, we are of the opinion, and therefore hold, that the expiration of the terms within the meaning of the above statutes applies to terms in any one of the divisions in which the accused could be tried in a multi-division court and does not apply to the combined overlapping terms of the combined divisions. Consequently, Gardner was not entitled to the statutory release under the facts of this case.

What constitutes a speedy trial within the meaning of the constitutional guarantee is not fixed or defined by statute, and must necessarily depend on the circumstances of the particular case. If an accused is in jail awaiting trial for a determination of whether he is innocent or guilty, he is entitled to a speedy trial as a moral and social, as well as a constitutional, right and certainly this right is considerably magnified if he is innocent of the crime charged. If an accused is free on bond while awaiting trial, he is also entitled to vindication as soon as possible if he is innocent, and he should not remain free and go unpunished any longer than is necessary if he is guilty of the crime charged. To hold the innocent in jail without a speedy trial or to permit the guilty to return to the scene of the alleged crime on the same day he is arrested and mingle free on bond for long periods of time among those who accused him, is hardly conducive to the deterrence of crime so sorely needed, and does not generate or enhance the public respect for, or confidence in, the courts and our judicial system. It is toward the correction of such evils that § 22 — 322.12 and Act 470 of 1971, supra, were enacted, and it is toward the correction of such evils that our per curiam order of June 28, 1971, was directed.

Returning now to the case at bar, the second term of no single division of the Craighead County Circuit Court had expired when Gardner’s case was set for trial, so he was not entitled to a statutory release under § 43-1708, supra, as already pointed out. These release statutes, however, Ark. Stat. Ann. §§ 43-1708 — 1709, supra, fix the very outer limits on what constitutes a speedy trial in Arkansas and do not define what is a speedy trial under the Constitution.

The accused in this case remained in jail for more than seven months simply awaiting trial for a determination of whether he was innocent or guilty. It is difficult indeed to consider a trial after such a delay as a speedy trial in a three division circuit court in Arkansas where the accused may be tried in any one of the three divisions by the simple process of transferring the case from one dicket to another under § 22-322.12, supra. On the assumption, however, that the trial court failed to recognize its jurisdiction and authority under § 22-322.12, supra, or misinterpreted the purpose and intent of our per curiam, supra, we hold that the trial court did not abuse its discretion in denying the motion to dismiss in this case, so the judgment in this case is affirmed.

Affirmed.

Fogleman, J., not participating.


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

text:
    William C. JONES, Jr. v. John D. HERRIN
    5-5914
    481 S.W. 2d 362
    Opinion delivered June 12, 1972

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

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellee.
   Conley Byrd, Justice.

In an action by William C. Jones, Jr., against appellee John D. Herrin for damages to Jones’ car, Herrin admitted liability. The trial court found both the difference between the before and after value of the car and the amount of money Jones has spent in renting a substitute vehicle. However, the trial court denied any recovery to Jones for loss of use of his vehicle for the four weeks period. We agree with the trial court under the law of this state. In Kane v. Carper-Do ver Mercantile Co., 206 Ark. 674, 177 S.W. 2d 41 (1944), we stated:

“. . .In some jurisdictions, loss of use of an automobile pending repair is a recognized item of damages. Annotations on this point may be found in 4 A.L.R. 1350, 32 A.L.R. 706, 32 A.L.R. 711, 78 A.L.R. 910, and 78 A.L.R. 917. But regardless of the holding of other courts we have held that loss of use of an automobile pending repair is not an element of damages. ...”

Mr. Jones here recognizes the foregoing authority but contends that we should overrule it and other like cases, urging that:

“Several legal treatises point out that Arkansas is the only state which denies recovery for loss of use of a vehicle pending repairs or replacement. 7 Ark. L. Rev. 397; 2 Harper & James, Law of Torts, 1315; 3 Personal Injury Actions, Defenses & Damages 237. These treatises are critical of the Arkansas position as being difficult to justify and as being regrettable. Counsel for appellant urges the Court to adopt Restatement of Torts § 928:
‘Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for
‘(a) the difference between the value of the chattel before the harm and the value after the harm or at the plaintiff’s election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs, and
‘(b) the loss of use.’ ”

While we recognize that there is some merit in appellant’s position, under our decisions the trial court properly denied the claim for loss of use. This disposition makes it unnecessary for us to rule on appellee’s contention that appellant did not sufficiently prove his delay damages.

Affirmed.

George Rose Smith and Brown, JJ., concurring.

George Rose Smith, Justice,

concurring. This court is perhaps the only one in the United States which refuses to allow a plaintiff compensation for the loss of the use of a vehicle negligently damaged by a wrongdoer. See Casenote, 7 Ark. L. Rev. 397 (1953). Our rule is demonstrably unjust, especially when, as here, the plaintiff customarily uses the vehicle in his business. Such an award is essential if the injured person is to be made whole. Hence instead of merely saying, as the majority do, that there is some merit in the appellant’s position, I would give notice that we intend to re-examine our rule in the future. That has been our practice in similar situations in the past. Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816 (1959); Robinsin v. Means, 192 Ark. 816, 95 S.W. 2d 98 (1936). Although the rule in question is not one of property, in the sense that a wrongdoer relies upon it in deciding to have a collision, it would nevertheless be fair to give notice of a possible change in the rule, so that casualty insurance companies may take that possibility into account in fixing their premiums.

Brown, J., joins in this concurring opinion.


author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    H. E. GATLIN, father and next friend of Harry E. GATLIN, a minor and H. E. GATLIN, individually v. COOPER TIRE & RUBBER CO.
    5-5898
    481 S.W. 2d 338
    Opinion delivered June 12, 1972
    [Rehearing denied July 10, 1972.1

      Dickey, Dickey & Drake, for appellants.

      Coleman, Gantt, Ramsay ir Cox, for appellee.
   Frank Holt, Justice.

Appellant, Harry E. Gatlin, a minor, was injured when a truck he was driving overturned. It appears that the accident was caused by the failure of a tire on a rear wheel of the truck. It is undisputed that the tire was manufactured by appellee. Appellant, H. E. Gatlin, individually and on behalf of his son, brought this action about two years after the accident to recover for the damages sustained by them. Appellants based their action upon the theories of negligence, strict liability in tort and breach of implied warranty. From an adverse judgment, based upon a jury verdict, appellants bring this appeal.

For reversal, appellants first contend that the court erred in refusing to give appellants’ requested instruction on strict liability. In support of this contention, they argue that under the strict liability in tort theory they met the required burden of proof to entitle them to this instruction by proving that they sustained damages which were proximately caused by a tire defectively manufactured by appellee. Appellants insist that they adduced sufficient “testimony both as to an existence of a defect in manufacture and design, as well as a removal of the possibility that the tire failure resulted from the occurrence of other causes.”

In Higgins v. General Motors Corp., 250 Ark. 551, 465 S.W. 2d 898 (1971), we said:

“**#A. plaintiff must still prove a defect in design or manufacture which was a proximate cause of his injury. This imposes upon him the burden of proving that the product was in a defective condition at the time it left the hands of the particular seller. . . In the absence of direct proof that the product is defective because of a manufacturing flaw or inadequate design, plaintiff must negate the other possible causes of failure of the product for which the defendant would not be responsible in order to raise a reasonable inference that the dangerous condition existed while the product was still in the control of the defendant, [citing cases] Otherwise, proof of proximate causation would be reduced to rank speculation [citing cases]; and this clearly is not an objective of strict liability.”

Appellants’ expert witness attributed the tire blowout to a defect in its construction. According to him, there was a “tunnel” or “hollow” area underneath the tire tread on a portion of the shoulder of the tire which resulted from an inadequate supply of rubber when the tire was in the mold machinery during the manufacturing process. In his opinion, the cause of the tire’s failure did not result from rubber quality, temperature, speed, driving, loading, or inflation.

On cross-examination, appellants’ expert witness testified that the majority of tires have a tread depth of ten thirty-seconds; this tire’s tread measurement as to the middle groove was three thirty-seconds. Further, assuming that there whs three thirty-seconds of tread left on this tire and a normal passenger load, he was in no position to state an opinion about how this tire had probably been used and did not think there was anyone qualified to do so. This is “because the wear of the tire depends on so many variables***such as the quality of the rubber; the temperature of the road; the speed of the travel; the way the man drives,***or just the change in the driving.” Loading is, also, a factor involved, as well as the inflation of the tires.

Appellee’s expert witness testified: “An examination of the tread surface indicates in this particular kind of designed tire that the tire has been run at overloads and at overinflation. The smearing and wiping of the edge of the shoulder right in this area which is being pushed down toward the sidewall of the tire by the excessive loading on the tread surface. This doesn’t happen in using this tire at the normal passenger car loads and normal passenger car use. It shows up only when the tire is loaded excessively and well beyond its design limitation. ***Now the reason that the number one ply was parted and let this air out was because the outer plies of the tire had flexed excessively and had broken from flexing successively the fourth ply and the third ply and the second ply until finally there was not the required amount of strength available in that four ply tire. It was practically a one ply tire in the final go round. And then at that time, as time went by, and I mean a few hundred miles probably, maybe a few thousand, but certainly more than fifty, as time went by and the tire was impacted in its normal use and normal impact, nothing terrific, it broke the plies, the cords in each of the plies in turn and finally as the number two ply cords broke number one ply separated between the cord and blew the liner out***.”

The subject tire was almost eighty percent worn treadwise. There was a stipulation that the tire was manufactured in November, 1967, before the accident which occurred on April 8, 1968. It appears that the tire and a piece of tread were recovered about two years after the accident from the left rear wheel of the demolished truck which was found in a junkyard. That portion of the tire tread covering the area where the blowout occurred has never been recovered. Appellants’ expert witness testified, as abstracted: “As far as this tire failure being caused from other sources I have concluded that it could not have for the following reasons, it would be impossible to conclude that it was a cut with some sharp instrument, firstly, because the part of the tire which was blown off has never been found [emphasis added]. . . ., secondly, I can’t see how it could have cut quickly through the tread and not cut the fabric [the fabric is frayed and not cut], also a cut would not leave or show a separation on the bottom or fourth ply as is shown in this tire. If it had been a cut it also would not have gone just around the tire where the tunnel appeared but would probably gone completely all the way around the tire.” The 7.25 x 14 4-ply tire was constructed for passenger car use. It was being used on an Econoline van truck. A 6.95 x 14 8-ply tire is the type recommended for use by this truck manufacturer. In the circumstances, even if we recognize the theory of strict liability in tort, which we have not, we are unable to say that appellants sufficiently negated all the possible causes of the tire failure.

Appellants, also, assert for reversal that the court erred in instructing the jury as follows: “Cooper Tire & Rubber Co. is in no way responsible to the plaintiff for any negligence of his employer, Oak Lawn Farm, Inc., or any other third party which might have caused the accident for which he seeks to recover his damages. If you find that the claimed injuries of the plaintiff were the proximate result of the negligence of Oak Lawn Farms, Inc., or any third party, then you must find for the defendant, Cooper Tire & Rubber Co.” Oak Lawn Farms, Inc., was not made a party in this action. In our view, the giving of this instruction as offered was error in view of appellant’s objection that it was a binding instruction which did not make clear that the third party’s negligence must have been the sole proximate cause before a verdict for defendant was required. It is a well settled rule of law that the negligence of a third party, not a party to the lawsuit, is no defense unless it is the sole proximate cause of the asserted damages, and a plaintiff may recover if the negligence of the named defendant was a contributing cause. See Beevers, Adm’x. v. Miller, 242 Ark. 541, 414 S.W. 2d 603, (1967). Furthermore, we have said that it 4s impermissible to substitute an instruction for an applicable AMI. If an applicable AMI is not used, it is a requirement that the trial court state the basis or reasons for refusal; C.R.I. & P. R.R. Co. v. Hughes, 250 Ark. 526, 467 S.W. 2d 150 (1971). In Vangilder v. Faulk, 244 Ark. 688, 426 S.W. 2d 821 (1968), we said: “It is implicit that the parties request instructions in the language of an applicable AMI, modified if necessary.”

Appellants further assert that the “court erred in denying the motion for summary judgment and denying the motion relating to the responses to the request for admission made at the conclusion of appellants’ case.” The appellants’ requests for admission included, inter alia, the question, “that the said tire as examined by the defendant was structurally defective?” These requests were served on appellee on October 7, 1970. Appellee’s response to their request was not served on appellants until October 21, 1970, or three days after the 11 days due date designated by appellants pursuant to Ark. Stat. Annot. § 28-858 (Repl. 1962). That statute in pertinent part provides:

“*#*Each of the matters of which an admission is requested shall be deemed, admitted unless, within a period designated in the request, not less than 10 days after service thereof or within such shorter or longer time as the court may allow on motion and notice, the party to whom the request is directed serves upon the party requesting admission either (1) a sworn statement denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully admit or deny those matters or (2) written objections***.”

Appellants assert that since the appellee’s response was made three days late that their requests for admission must be deemed as admitted facts; and, therefore, they were entitled to have their motion for summary judgment granted. At the time the requests for admission and response were served or completed, the appellants’ complaint alleged a cause of action based upon breach of an implied warranty (no notice was alleged) and, alternatively, negligent manufacture of the tire. Several months thereafter, appellants filed various amendments to their complaint alleging, inter alia, that the defect in the tire was caused solely by appellee’s negligence and workmanship; that the tire was being used in ú reasonably forseeable manner; that the tire was placed upon the market in a defective condition with a latent defect; and, finally, that notice of the defect in the tire was given to appellee. This allegation of notice is necessary, L. A. Green Seed Co of Ark. v. Williams, 246 Ark. 463, 438 S.W. 2d 717 (1969). In the circumstances, we think the trial court, notwithstanding appellee’s three day delay, acted well within its discretion in accepting appellee’s response as constituting denials of appellants’ requests for admission. See B. & P., Inc. v. Norment, 241 Ark. 1092, 411 S.W. 2d 506 (1967).

Appellants, also, contend that the court erred in not allowing appellants’ witness to testify concerning a conversation he had with appellee’s asserted agent. In support of his position, appellants rely on Lee Rubber & Tire Corp. v. Camfield, 233 Ark. 543, 345 S.W. 2d 931 (1961). We find no merit in this contention. In the case at bar, appellants’ witness was asked: “Now, Mr. Phillips, did you ever have a conversation with Mr. Sinclair concerning the quality of tires that Cooper Tire was putting out during the year?” The proof as adduced merely reflected that appellee’s asserted agent had said: “there had been a batch of tires made that wei'e defective*** he didn’t know why they were defective, but evidently they must have a certain number of them or something that they could go back to the particular day or week and that those group of tires and if they had any more in the store, they would not put any more back on our trucks.” There was not a sufficient showing that this witness’ conversation as to a batch of defective tires was connected with their particular tire. Thus, this factual situation is distinguishable from that in Lee, Rubber 8c Tire Corp. v. Cam-field, supra, where the issue related to the purchase of an entire lot of allegedly defective rubber.

Reversed and remanded.

Jones, J., dissents, and Byrd, J., concurs.

Conley Byrd, Justice,

concurring. I concur in the result but I do not want the bar nor the public to believe that I am in favor of legislating on. the question of “strict liability.” The legislature has enacted the Uniform Commercial Code in which a great deal of consideration was given to “Product Liability.” Article 4 of the Constitution of the State of Arkansas provided for three distinct departments of government — i.e. legislative, executive and judicial. Section 2 thereof provides:

“No person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others. . .”

The oath of office prescribed by Article 19 Sec. 20, and which I took, requires that I support the Constitution of the State of Arkansas. Consequently I cannot support judicial legislation on the subject of “strict liability” and will not do so no matter how many times the court rules to the contrary on the subject.

If the public wants every manufacturer, producer or processor, irrespective of size or volume, to be subject to “strict liability,” it should apply to the General Assembly — where all those with opposing views will have an opportunity to be heard.

For the reasons stated, I respectfully concur.


author: Frank Holt, Justice.

text:
    Val BROWN v. STATE of Arkansas
    5566
    481 S.W. 2d 366
    Opinion delivered June 12, 1972

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

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury convicted appellant of the crime of escape and assessed his penalty at one year in the State Penitentiary. Appellant was subsequently sentenced to 5 years in the penitentiary pursuant to the habitual-criminal act. On appeal the appellant contends for reversal that the verdict was contrary to law and the evidence.

The State adduced testimony from a deputy sheriff, a custodian of the local county jail, that the appellant was incarcerated there serving a one year’s sentence on a previous escape charge. In the absence of any objection to this testimony as not being the best evidence of appellant’s conviction and sentence, we are of the view that this testimony was sufficient to meet the requirements of Ark. Stat. Annot. 41-3513 (1971 Supp.) to establish that appellant was “lawfully imprisoned” in the county jail. See, also, Harding & Hildebrandt v. State, 248 Ark. 1240, 455 S.W. 2d 695 (1970).

The State further adduced evidence that the appellant was in the local county jail at approximately 5 p.m. when the prisoners were fed and that about 10:30 p.m. it was discovered that a hasp, which fastened the outer door of the cell, was broken and the appellant and other prisoners were missing. Later that night appellant was apprehended in the locality. Appellant testified that he left the jail, following the escape of other inmates, for the purpose of notifying the local officers about the jail break. The conflicting versions of appellant leaving his place of confinement present a question of fact for the jury to determine as to appellant’s intent. Cassady v. State, 247 Ark. 690, 447 S.W. 2d 144 (1969). We think there is substantial evidence to support the verdict.

Appellant, also, asserts that the court erred in refusing his motion for a continuance. The appellant had received continuances at two previous terms of court when represented by an attorney of his own choice. Five days before this trial he secured the services of a different attorney. It was urged that another continuance was necessary for trial preparation by his new counsel and, also, to secure the attendance of a necessary witness. No verified motion setting forth any statutory grounds to support appellant’s motion for continuance was filed.

A motion for continuance is addressed to the sound judicial discretion of the trial court, and we do not reverse its action in the absence of abuse of discretion. Nash v. State, 248 Ark. 323, 451 S.W. 2d 869 (1970), Eddy v. State, 165 Ark. 289, 264 S.W. 832 (1924). Furthermore, the motion for continuance based upon the absence of a witness is properly overruled when there is no proof, as here, of the testimony to be offered by the absent witness. Hill v. State, 250 Ark. 812, 467 S.W. 2d 179 (1971), Eddy v. State, supra. In the circumstances we are of the view that the court did not abuse its discretionary authority in refusing a continuance.

Appellant, also, attacks the constitutionality of our habitual-criminal statutes, Ark. Stat. Annot. § 43-2328 to 2331 (Supp. 1971), pursuant to which he was sentenced. We have considered and upheld the constitutionality of these acts. Poe v. State, 251 Ark. 35, 470 S.W. 2d 818, (1971), Ridgeway v. State, 251 Ark. 157, 472 S.W. 2d 108, (1971).

Affirmed.