text:
    Willie PERRY v. STATE of Arkansas
    CR 73-109
    500 S.W. 2d 387
    Opinion delivered October 29, 1973

      Joe W. McCoy and Edward E. Scrimshire, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Perry, charged with the first degree murder of Pat Brumett, was found guilty of voluntary manslaughter by a jury which fixed his punishment at six years’ imprisonment. He alleges that the trial court erred in admitting two photographs of the body of Brumett into evidence and in allowing the prosecuting attorney to exceed the bounds of propriety in closing argument. We find no reversible error.

Appellant asserted that the killing was done in self-defense. Brumett died from wounds inflicted on him by Perry with a knife. A physician, acting as State Medical Examiner, testified that in his opinion death resulted from a knife wound on the neck, but that one under the arm might have been the cause. There had been previous difficulties between the two and some argument between them on June 18, 1972, the day of the fatal encounter. The killing took place in a small cabin consisting of one room, a kitchen area and a bathroom. It occurred after a dice game there in which Lewis Sutton, Neal Jester, Brumett and Perry had all participated at one time or another during a period of three hours or more. All participants had been drinking beer or whiskey. The argument between Perry and Brumett took place while this game was in progress.

Just prior to the encounter, Brumett had been sitting at the end of a bed near the door to the cabin. None of the others present saw what took place between Perry and Brumett as Perry started to leave, or heard any statements made by either to the other. Each professed to have had his attention attracted by a commotion, as if persons were scuffling near the door, and to have then seen Brumett bleeding badly and Perry and Brumett standing and facing one another. Immediately after the witnesses saw this, Perry bolted out the door. None of the witnesses saw any weapon in the possession of either Perry or Brumett or heard any threat made by Brumett to Perry.

Perry first contends that the photographs were introduced without a proper foundation having been laid, i.e., that it was not shown that the pictures were accurately taken or that they were correct- representations of the subject matter. They were identified by C. B. Crownover, a deputy sheriff who investigated the incident. Crownover went to the hospital and observed Brumett’s body after he had made an inspection,in and about the cabin and obtained such information as he could. He testified that the two photographs admitted, along with others excluded, were made in his presence by the physician who acted as medical examiner, after Brumett’s clothing had been removed. Crownover said that the pictures showed Brumett’s appearance after the clothing had been removed. We cannot say the foundation thus laid for the introduction of these pictures was inadequate. We note the physician later testified that he made the photographs and that the two, one a front view and the other a rear view of Brumett’s body, portrayed all the “cuts” on it. He. referred to these photographs in explaining his examination and findings.

Appellant also contends the photographs should have been excluded because of their tendency to inflame the minds of the jury, and that they were introduced solély for that purpose.

Brumett was described as a man over six feet tall, weighing over 200 pounds. Perry was said to have weighed 140 to 150 pounds. Perry testified that as he started to leave, Brumett jumped up from the bed and started striking and choking him, and that he ran his hand in his pocket, withdrew a knife and cut Brumett with it until Brumett slackened his hold enough that he (Perry) could get loose and fall out the door. Perry stated that he did not know how many times he struck Brumett with the knife, but that he thought each time that Brumett would feel a “sting” and release him. Perry denied having his hand or arm around Brumett’s neck while cutting him with the knife.

An in camera hearing was held before the circuit judge admitted the photographs into evidence. It is significant to us that he rejected five others. We agree with appellant that these admitted should have been rejected if their sole effect was to inflame the passions of the jurors against him. See Garrett v. State, 171 Ark. 297, 284 S.W. 734. Otherwise, the admission and relevancy of photographs are matters resting largely in the discretion of the trial judge. Lee v. State, 229 Ark. 354, 315 S.W. 2d 916. An objection that photographs tend to inflame or prejudice the jury is not valid, if they are otherwise properly admissible. Milam v. State, 253 Ark. 651, 488 S.W. 2d 16; Williams v. State, 239 Ark. 1109, 396 S.W. 2d 834; Oliver v. State, 225 Ark. 809, 286 S.W. 2d 17. However inflammatory they may be, they are admissible in the discretion of the trial judge, if they tend to shed light on any issue or are useful to enable a witness to better describe the objects portrayed or the jury to better understand the testimony, or to corroborate testimony. Davis v. State, 246 Ark. 838, 440 S.W. 2d 244; Stewart v. State, 233 Ark. 458, 345 S.W. 2d 427; Oliver v. State, supra. Photographs are also admissible as primary evidence upon the same grounds and for the same purposes as diagrams, maps and plats. Sellers v. State, 91 Ark. 175, 120 S.W. 840. These principles have been applied in sustaining the admission of photographs depicting conditions resulting from bodily injuries. Reed v. McGibboney, 243 Ark. 789, 422 S.W. 2d 115. We there pointed out that an oral description of such conditions by a witness who was unusually eloquent might be as inflammatory as a photograph showing the same conditions.

The photographs admitted showed a front and a rear view of Brumett’s body. The one taken from the rear showed two long gaping wounds on Brumett’s back, both on the left side — one just below the shoulder blade, and one near the bottom of the rib cage — and another across the back of his neck. The one taken from the front showed one severe wound on the throat and another below the armpit, both on Brumett’s left side.

We have in many cases upheld the admission of photographs of the body of the victim in a homicide case when they showed the nature and location of wounds, even though the photographs were gruesome. See, .e.g., Lillard v. State, 236 Ark. 74, 365 S.W. 2d 144; Oliver v. State, supra; Perkins v. State, 217 Ark. 252, 230 S.W. 2d 1; Lee v. State, 229 Ark. 354, 315 S.W. 2d 916; Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011, cert. denied, 339 U.S. 916, 70 S. Ct. 562, 94 L. Ed. 1341; Black v. State, 215 Ark. 618, 222 S.W. 2d 816, cert. denied, 338 U.S. 956, 70 S. Ct. 490, 94 L. Ed. 590; Higdon v. State, 213 Ark. 881, 213 S.W. 2d 621; Nicholas v. State, 182 Ark. 309, 31 S.W. 2d 527; Sellers v. State, supra.

Perry’s defense raised questions, among others, as to which of the two was the aggressor, whether Perry in good faith endeavored to avoid the danger which appeared to him and to avert the necessity of killing Brumett and to decline further contest before the mortal wound was inflicted, whether Perry honestly believed he was in danger of losing his own life or suffering great bodily injury, whether the circumstances were sufficient to excite the fears of a reasonable person, whether Perry acted hastily or in a spirit of revenge and whether he acted with due caution and circumspection. Ark. Stat. Ann. §§ 41-2209, 41-2235, 41-2236 (Repl. 1964). Bruder v. State, 110 Ark. 402, 161 S.W. 1067; Deatherage v. State, 194 Ark. 513, 108 S.W. 2d 904; Peters v. State, 245 Ark. 9, 430 S.W. 2d 856; Duncan v. State, 49 Ark. 543, 6 S.W. 164.

The nature and location of the wounds were material in this case to several of the issues. In considering these issues, the jury was at liberty to consider the nature, and location of the wounds, the probable manner of their infliction and the extent to which they were contradictory to appellant’s contentions. See Bartley v. State, 210 Ark. 1061, 199 S.W. 2d 965; Black v. State, supra. The number and severity of the wounds were relevant to the questions whether Perry acted in a spirit of revenge, and whether he acted with due caution and circumspection. In addition, these facts had some probative force tending to show malice. Davis v. State, 246 Ark. 838, 440 S.W. 2d 244; Government of Virgin Islands v. Lake, 362 F. 2d 770 (3rd Cir. 1966); Carson v. State, 217 Ark. 658, 232 S.W. 2d 835; Tatum v. State, 172 Ark. 244, 288 S.W. 904. See also, Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72; Stockton v. State, 239 Ark. 228, 388 S.W. 2d 382; Bly v. State, 213 Ark. 859, 214 S.W. 2d 77; Wooten v. State, 220 Ark. 750, 249 S.W. 2d 964. They were also to be considered in determining whether the intent to kill should be inferred. Craig v. State, 205 Ark. 1100, 172 S.W. 2d 256. From an examination of these wounds, it appears that it was possible for all or some of them to have been inflicted by one who was behind Brumett. If so, that fact was quite material to the question of whether deceased or appellant was the aggressor. See Bartley v. State, 210 Ark. 1061, 199 S.W. 2d 965.

In Nicholas v. State, 182 Ark. 309, 31 S.W. 2d 527, where a picture was nothing more than a description of fatal wounds of the deceased at the hands of the accused, it was argued that, because of the gruesomeness of the wound shown, the picture prevented a fair and impartial trial because it tended to arouse the passions of the jury. Our language there is pertinent here. We said:

The character of the wound inflicted upon deceased by one charged with his murder is always admissible in evidence, and we know of no rule limiting the description thereof to word of mouth. # * .* We do not think the most accurate method of reflecting a truth should be eliminated, but, just to the contrary, such a method should be approved and accepted.

We can say with assurance that there was no abuse of the circuit judge’s discretion in admitting these photographs, and his rejection of five others tends to indicate that his discretion was soundly exercised. Since appellant was charged with first degree murder and convicted of only voluntary manslaughter, we have considerable doubt that the admission of the photographs could have inflamed the passions of the jury. See Perkins v. State, 217 Ark. 252, 230 S.W. 2d 1; Garrett v. State, 171 Ark. 297, 284 S.W. 734.

Appellant complains that the prosecuting attorney failed to produce a forensic pathologist to testify about the direction from which the cuts were inflicted or the position of the person who inflicted them, as he stated that he would at the hearing in camera. In view of what we have said, this failure is immaterial. He also complains of the statement by the circuit judge at that hearing that the photographs admitted would have “some weight to the jury for them to know there was a hog skinning out there.” If that statement had been made in the presence of the jury, we would have cause for concern. Since it was made out of the hearing of the jury, appellant could not have been prejudiced by the folksy language used by the judge in stating the reasons for his ruling.

Appellant also complains that the circuit judge gave the jury no instruction stating the purpose for which the photographs might be considered and admonishing the jurors against permitting these pictures to inflame their minds, as was done in Lee v. State, 229 Ark. 354, 315 S.W. 2d 916. There was no request by appellant for such an admonition. The failure to give an admonitory or cautionary instruction, or one limiting the effect of testimony or the purpose for which it may be considered, is not prejudicial error, in the absence of a request therefor. Petron v. State, 252 Ark. 945, 481 S.W. 2d 722; Steel v. State, 246 Ark. 75, 436 S.W. 2d 800; Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225. Fielder v. State, 206 Ark. 511, 176 S.W. 2d 233; Kyles v. State, 143 Ark. 419, 220 S.W. 458.

The fact that appellant’s counsel admitted that the victim was cut numerous times did not render these photographs inadmissible. In the first place, the location and severity of the cuts were not admitted and admission could hardly have portrayed the actual nature of the wounds or given any indication as to the direction from which they may have been inflicted. Furthermore, the fact that the evidence is cumulative or unnecessary because of an admission by defendant of facts disclosed by photographs does not, in and of itself, render them inadmissible. Smith v. State, 216 Ark. 1, 223 S.W. 2d 1011, cert. denied, 339 U.S. 916, 70 S. Ct. 562, 94 L. Ed. 1431; Rivers v. United States, 270 F. 2d 435 (9th Cir. 1959); State v. Upton, 60 N.M. 205, 290 P. 2d 440 (1955). See also, Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72; State v. Greene, 74 R.I. 437, 60 A. 2d 711 (1948); State v. Lantzer, 55 Wyo. 230, 99 P. 2d 73 (1940).

Appellant’s contentions about the prosecuting attorney’s arguments to the jury are threefold. The arguments were not reported verbatim, but the record purports to state the gist of the statements to which appellant objected and of his objections thereto. We do not consider the statement in appellant’s brief that the prosecuting attorney was waving a knife in front of the jury, because the record does not disclose that this was done, or, if it was, that any objection was made.

The first objection was made to a statement by the prosecuting attorney that he had wanted Perry to open a pocket knife in court, but that appellant’s attorney would-n’t let him because he (the attorney) didn’t think he could open it with one hand. After a general objection was made, the court admonished the jury to consider remarks of counsel as statements of their opinions and to base its verdict on the evidence and the law given by the court. Thereafter, appellant’s attorney only requested that the judge ask the prosecuting attorney to stay in the record. We do not consider there was any reversible error here. Perry had testified that while Brumett was striking and choking him, he got one hand into his right pocket, removed his pocket knife, stuck his finger in the “nail thing,” put it against his leg and opened it. The circuit judge had sustained appellant’s attorney’s objection to the prosecuting attorney’s request that Perry demonstrate how he opened the knife with a knife tendered by the prosecuting attorney. Perry later denied that the knife was open in his pocket before the encounter. Appellant did not request any further admonition, object to that given, or move for a mistrial. In view of the court’s admonition, we cannot say that there was any prejudicial error in this instance. See Camp v. State, 249 Ark. 1075, 467 S.W. 2d 707.

The second objection was made to the statement that Pat Brumett was a fellow that liked to shoot craps, drink and fight, and that the defendant must have liked to also. It is sufficient to say that there was no error because it was not unreasonable for one to draw from the evidence the inference that the prosecuting attorney stated. See Patrick v. State, 245 Ark. 923, 436 S.W. 2d 276; Gibson v. State, 252 Ark. 988, 482 S.W. 2d 98.

The third instance is reported thus:

MR. LOVELL: He jumped on the man’s back and cut him all to pieces.
MR. McCOY: I object. I want him to argue the evidence.
THE COURT: I have repeatedly told the jury where their verdict will be based on and the right of attorneys to express their opinions.
MR. McCOY: Would you insist he stay in the record.
THE COURT: He has a right to express his opinion, Mr. McCoy.
MR. McCOY: Save my exceptions.

Here again, appellant’s attorney did not move for a mistrial and made no request for any further admonition except that the prosecuting attorney be required to stay in the record. Appellant argues that there is no evidence that appellant jumped on Brumett’s back and that the only evidence on the subject was the testimony of two witnesses that the two were locked face to face. It is true that the witnesses said that the two were standing face to face when they looked toward appellant and the deceased. It is also true that they had both previously heard a commotion and when they saw Brumett and Perry, the wounds must have already been inflicted, because Brumett was bleeding badly at the time and neither professed to have seen any of the combat. As we have previously indicated, an inference that the wounds were inflicted by someone to Brumett’s rear would not be totally unfounded. Consequently, there does not appear to have been any impropriety in the argument, and the court’s admonition to the jury to the effect that statements of counsel were to be considered as opinions only would seem to be sufficient. See Ulmer v. State, 253 Ark. 106, 484 S.W. 2d 691; Gibson v. State, supra; Camp v. State, supra; Patrick v. State, supra.

The trial court has a wide latitude of disci in controlling, supervising and determining the prop of the arguments of counsel, and its exercise will not be reversed in the absence of manifest gross abuse. Stanley v. State, 248 Ark. 787, 454 S.W. 2d 72; McGill v. State, 253 Ark. 1045, 490 S.W. 2d 449; Hill v. State, 253 Ark. 512, 487 S.W. 2d 623; Blanton v. State, 249 Ark. 181, 458 S.W. 2d 373. We find no abuse of that discretion here.

The judgment is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    D. R. HOLLINGSWORTH and ROCKWOOD INSURANCE Company v. Jimmy Ray EVANS and Mary Lee EVANS
    73-112
    500 S.W. 2d 382
    Opinion delivered October 29, 1973

      Shackleford ér Shackleford, by: Norwood Phillips, for appellants.

      Paul K. Roberts, for appellees.
   J. Fred Jones, Justice.

This is an appeal by D. R. Hol-lingsworth and Rockwood Insurance Company, the employer and compensation insurance carrier respectively, frorr a circuit court judgment reversing the Arkansas Wo men’s Compensation Commission’s dismissal of claims filed by Jimmy Ray Evans and Mary Lee Evans against Hollingsworth. The appellants contend on this appeal that the decision of the Workmen’s Compensation Commission is supported by substantial evidence and the circuit court erred in reversing the Commission.

The facts appear as follows: Hollingsworth had a contract with the Georgia Pacific Corporation whereby Hollingsworth purchased pulpwood in Bradley County and shipped it to Georgia Pacific. When the contract was entered into, Hollingsworth was required to submit proof to Georgia Pacific that Hollingsworth had procured a policy of workmen’s compensation insurance. Before Georgia Pacific would pay Hollingsworth for the pulpwood he shipped, Hollingsworth was required to attach to each ‘bill of lading a statement that he had complied with state law pertaining to workmen’s compensation insurance coverage. Hollingsworth carried workmen’s compensation insurance under a policy issued by Rockwood Insurance Company and was charged a premium of 47 cents per cord of pulpwood he shipped to Georgia Pacific. Mr. Hollingsworth maintained a pulpwood yard in Warren, Arkansas, where pulpwood was delivered by truck and loaded onto railroad cars for shipment to Georgia Pacific.

Hollingsworth purchased pulpwood from various individuals including Jimmy Ray Evans. Mr. Evans owned a pulpwood truck and was engaged in the business of purchasing timber, cutting it into pulpwood and selling it to Mr. Hollingsworth. At Mr. Evans’ request, Hollings-worth withheld from the amount due Evans for pulpwood sold to Hollingsworth, the amounts Evans had agreed to pay the owner of the timber he purchased and Hollings-worth would pay that amount direct to the timber owner and the balance to Evans.

Mr. Evans had purchased some saw log tree tops on land owned by a Miss Hardy and on November 1, 1971, Evans and his wife were cutting the tree tops into pulpwood to be delivered to Hollingsworth when a bolt in their chainsaw broke. Mr. and Mrs. Evans started in their pickup truck to Warren to have the chain saw repaired when they were involved in a collision with another vehicle in route and both of them were injured. They filed a claim for workmen’s compensation benefits and following a hearing before a Referee, their claims were denied by the Referee and the Commission.

On appeal to the circuit court, the court found there was no substantial evidence to warrant the Commission in denying the claims. The court found that Hollingsworth was required by Georgia Pacific to provide workmen’s compensation insurance for the workers who produced the pulpwood Hollingsworth shipped to Georgia Pacific. The court further found that the claimants paid a consideration to Hollingsworth for each cord of wood claimants produced, or had a consideration withheld by Hollings-worth from each cord produced, and for these reasons the claimants were covered by the policy of insurance issued to Hollingsworth by the respondent, Rockwood Insurance Company. The court further found that the respondents were estopped to deny that claimants were covered by the policy because they had already paid similar claims. The court reversed the decision of the Commission and remanded the case with directions to award benefits to Mr. and Mrs. Evans. We must agree with the appellants that the decision of the Workmen’s Compensation Commission is supported by substantial evidence and the circuit court erred in reversing the Commission.

Mr. Evans testified that he had been cutting and hauling pulpwood to Hollingsworth for about four years with the exception of perhaps one week when he hauled his pulpwood to another buyer. He said that he was receiving $15 per cord for pine and $12 per cord for oak for the pulpwood delivered to Hollingsworth’s yard. He said he purchased his timber from various individuals and at the time of his and his wife’s injuries, he was hauling from downed tree top timber he had purchased from Miss Hardy. He said Miss Hardy’s woods foreman directed him to the tract from which he was to cut and that by mutual agreement, Mr. Hollingsworth paid directly to the Hardy interest the amount per cord he agreed to pay for the timber tops he was cutting, and that Hollingsworth paid the balance directly to him. He was asked and answered the following questions:

“Q. Was anything taken out of your wages or the money that you got for insurance?
A. I really don’t know how that insurance is set up.
Q. You don’t know how that is set up?
A. It is so much a cord. I don’t know whether that is held out of our check or just how that works. I really don’t know.”

Mr. Evans testified that he carried no insurance of his own and at one time, prior to his injury, he had a conversation with Hollingsworth concerning insurance. When asked about the conversation, he testified in part as follows:

“A. Well, it was brought up a time or two, but I never did question it. Donnie just said that we were covered out there in the woods if we got hurt or anything, that we had the insurance.
Q. When did Mr. Hollingsworth tell you that?
A. I don’t remember exactly. It’s been — well I believe that was before I even went to hauling to him. I’m not sure.”

Mr. Evans said Hollingsworth’s statement concerning insurance was made when he, Evans, was in partners with his uncle. He said he had a helper about that time who was injured and his claim was accepted by Hollingsworth’s compensation carrier. He said he is quite sure he was hauling for Hollingsworth at that time. He then said:

“I don’t remember the date. I do remember we was talking about that insurance. I remember this much about it, it was ever who we hauled the last wood to, if we had an accident before we got in with the next load, the one that we hauled the last load to, whether I hauled it to Martindale or down to Hermitage, their insurance was the one obligated to pay it. I do remember hearing — I do remember that about the insurance.”

Mr. Evans testified that he had no employees except himself and his wife when he was injured; that he owned his own equipment including his pulpwood truck, loader and saws; that he purchased his own timber and furnished his own fuel. He said that Hollingsworth did not direct any of his activities in connection with the pulpwood cutting and hauling except that he designated the length of pulpwood acceptable. He said that he carried on his operation without any interference or assistance from Hollingsworth and that he worked when he wanted to. On cross-examination he testified that cost of stumpage was forwarded directly to the owner of the stum-page and that he received the amount left over for the pulpwood he delivered to Hollingsworth.

“Q. So there was nothing withheld out of your check except the amount of the cost of the stumpage?
A. To the best of my knowing, that’s all.”

On redirect examination Mr. Evans testified that after he dissolved the partnership with his uncle, he continued to haul pulpwood to Hollingsworth, but that nothing else was ever said about insurance until after his accident and injury. He said that after the injuries he and his wife sustained, he asked Mr. Hollingsworth about insurance coverage.

. . [M]e and Donnie were just talking, and I asked him about did he think that I ought to be covered or was I covered, and he said, ‘Well, I can’t tell you that you are and I can’t tell you that you ain’t, but my opinion you should be covered. . . .”

Lawrence H. Derby, Jr., the insurance agent from whom Hollingsworth obtained the policy issued by Rock-wood, testified that he did not recall Rockwood paying a claim on a man named E. L. Davis. At this point the appellant’s attorney, after conferring with Hollingsworth, volunteered the information that there was a “medical only’’ claim filed for $4 or $5 which was paid. The insurance policy issued to Hollingsworth was a standard workmen’s compensation insurance policy agreeing “to pay, promptly when due, all compensation and other benefits required of the insured by the workmen’s compensation law.”

Mr. Hollingsworth testified that he had workmen’s compensation insurance coverage at the time Mr. and Mrs. Evans were injured, and that he was paying 47 cents per cord in premiums for the insurance and that the premium was paid on the basis of check stubs he received from Georgia Pacific for the pulpwood he shipped to them. He said he would take, or mail, his check stubs to his agent Derby, and that Derby would then mail back to him a premium statement based on the total number of cords of pulpwood he had shipped to Georgia Pacific during the month. He said he shipped all his pulpwood to Georgia Pacific and that his insurance premium would vary with the number of cords of pulpwood he shipped. He said when he purchased the insurance, agent Derby told him his subcontractors would be covered under the policy, but that he did not withhold anything for insurance premiums from the amounts due the haulers. He testified that he had no “direct” employees. He said that he had no employees from whom he was withholding Social Security or income tax, and that he turned in no quarterly reports pertaining to same.

Mr. Hollingsworth was not asked to explain his meaning of direct employees as distinguished from employees that were not direct. In attempting to explain the insurance coverage he purchased from Derby, he testified as follows:

“Mr. Derby and I talked about this when I began business. My father had this business prior to the time that I took it from him. At the time he was paying an extra ten cents a cord to cover a sub-contractor. At the time I took the policy, I had only sub-contractors and I felt like it would be only reasonable that I should pay only the ten cents a cord and not the basic policy fee. At that time we discussed it. It’s been many years ago and I could not say, word for word, what was said at that time. I don’t think Mr. Derby could. There was no written agreement but the only reason I had the policy was to protect me against liability and to protect my employees as such, as sub-contractors.”

Mr. Hollingsworth then testified that he entered into his contract with Georgia Pacific about 1968 and Georgia Pacific required him to furnish proof that he had workmen’s compensation insurance coverage. He said:

“I bought it because it was required by law and because I had to have protection for myself at the time I bought it. I was under the impression that my subcontractors were covered. That’s the best answer I can give you on it. ... ”

Mr. Hollingsworth said he had been selling wood to Georgia Pacific and buying it from people such as Mr. Evans and others similarily situated for approximately three years. He said he usually had between three and ten different haulers who delivered pulpwood to him on the same basis as Mr. Evans; that “they come and go.” He said the contract between him and Georgia Pacific was subject to cancellation at any time by either party notifying the other; that he was required to attach to the bill of lading on each car of pulpwood he shipped to Georgia Pacific a form saying he had complied with all laws and statutes of Arkansas, but that he was not required to present a receipt showing he had purchased workmen’s compensation insurance except the one time when he entered into the original contract with Georgia Pacific.

Ark. Stat. Ann. § 81-1306 (Repl. 1960) provides that when a subcontractor fails to secure compensation required by the Act, the prime contractor shall be liable for compensation of the employees of the subcontractor. Mr. Hollingsworth refers repeatedly to his obtaining insurance for the protection of his “subcontractors.” The prime contract is not in evidence and there is no evidence one way or the other relating to the duties of subcontractors as distinguished from haulers or producers such as Mr. Evans, from whom Mr. Hollingsworth purchased pulpwood. It is entirely possible that Mr. Hollingsworth considers the haulers, such as Mr. Evans, as “subcontractors.” He said, however, that when he took the business over from his father, that his father had one subcontractor. Mr. Hollingsworth did say he had no “direct employees” but he did not say who loads the pulpwood from his wood-yard to the railroa.d cars, and he did not say whether anyone else is involved in his operation except himself and the haulers from whom he purchases pulpwood delivered to his yard.

There is, of course, a considerable difference between a subcontractor and an independent contractor. In Black’s Law Dictionary, Rev. 4th Ed., a subcontractor is defined as:

“One who takes portion of a contract from principal contractor or another subcontractor. * * * One who has entered into a contract, express or implied, for the performance of an act with the person who has already contracted for its performance.”

In Gaydos v. Packanack Woods Dev. Co., 166 A. 2d 181, at page 184, the New Jersey Court defines a subcontractor in a workmen’s compensation case as follows:

“A subcontractor is one who enters into a contract with a person for the performance of work which such person has already contracted to perform. In other words, subcontracting is merely ‘farming out’ to others all or part of work contracted to be performed by the original contractor.”

. As already stated, the prime contract between Hollings-worth and Georgia Pacific is not before us so it is entirely possible that in addition to purchasing pulpwood from haulers or producers such as Mr. Evans, Hollingsworth did have subcontractors performing part or all of his contract with Georgia Pacific and these employees, as well as Georgia Pacific, would have been protected as a matter of law by Hollingsworth’s compensation coverage.

The employees of a subcontractor are covered by workmen’s compensation benefits under the prime contractor’s coverage in the event the subcontractor does not have separate coverage for his employees, but the employees of an independent contractor who is not a subcontractor are not covered as are the employees of a subcontractor under § 81-1306.. This statute does not provide coverage, as a matter of law, for the subcontractor himself but only applies to his employees. The record is not clear whether Mr. Hollingsworth himself was a subcontractor under Georgia Pacific or was simply an independent contractor who purchased and sold pulpwood to Georgia Pacific. It is apparent, however, from Mr. Hollingsworth’s testimony, he believed he was required to carry a workmen’s compensation policy by the laws of Arkansas, but there is no evidence in the record that he was so required.

The trial court apparently based its decision on such cases as Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S.W. 2d 270, and Hale v. Mansfield Lbr. Co., 237 Ark. 854, 376 S.W. 2d 670. In the Stillman case the contract between the parties was in evidence in which Jim Walter was designated “contractor” and Roy Stillman was designated as “subcontractor.” The Jim Walter Corporation engaged Stillman to build houses for a specified consideration depending upon the type of house constructed. Stillman was to furnish only the labor. The contract in that case provided that the subcontractor was to furnish the contractor with a certificate of workmen’s compensation coverage on subcontractors and on employees of the subcontractor. In the absence of such certificate, all payments due the subcontractor were subject to a three per cent deduction and the contractor would furnish such workmen’s compensation coverage. Stillman was injured on the job and filed a claim for compensation benefits. The claim was defended on the ground that Stillman was an independent contractor and not an employee. In that case we pointed out that the Jim Walter Corporation had agreed, for a consideration of three per cent of the contract price payable to Stillman, to furnish workmen’s compensation coverage for Stillman as well as his employees. With Stillman’s consent the three per cent was deducted and the coverage furnished. In that case we held that regardless of whether Stillman was in fact, an independent contractor or employee, under the facts in that case, the Jim Walter Corporation was estopped to say that Stillman was not entitled to workmen’s comepnsation. The decision in that case turned on the written contract supported by valuable consideration. Such is not the fact supported by any substantial evidence in the case at bar.

In Hale v. Mansfield Lbr. Co., supra, Hale was to receive $7.50 per 1,000 board feet plus payment of the insurance premum for skidding logs out of the woods and loading them on trucks. Hale owned and used his own team in the operation and no other insurance premiums were involved except workmen’s compensation insurance premiums. The primary distinction in Hale and the case at bar, however, was that Mansfield Lumber Company was removing timber from government land under a contract with the government, and in that case we said:

“Even if it can be said that Hale was an independent contractor, he was an independent subcontractor, and Mansfield would be liable to his employees under the workmen’s compensation law.’’

Hale had no employees of his own and was simply one of the workmen getting out the timber in the performance of Mansfield’s contract with the government. Mansfield paid a premium for workmen’s compensation insurance in the amount of $11.36 on every $100 of remuneration paid to Hale and we held that it could be fairly inferred that the insurance was to cover Hale as well as the other workers. The insurance policy in that case specifically covered logging and that was what Hale was doing. Had Hale been the one who entered into a contract with the government for the purchase and removal of timber from government land, and if he in turn had cut the timber and sold the logs to the Mansfield Lumber Company, the Hale case would have been more in point with the case at bar and also in point with the cases of West v. Lake Lawrence Pulpwood Co., 233 Ark. 629, 346 S.W. 2d 460, and Pearson v. Lake Lawrence Pulpwood Co., 247 Ark. 776, 447 S.W. 2d 661.

The facts in West, supra, as set out on page 631 of the Arkansas Report are almost identical to the facts set out in the case at bar and in West this court on appeal, sustained the Commission in denying compensation. As pointed out in the dissenting opinion in West, both West and Lake Lawrence thought West was covered by Lake Lawrence’s workmen’s compensation policy and Lake Lawrence deducted a fixed sum per cord of wood cut for workmen’s compensation insurance. The dissenting members of the court in West would have applied the rule of estoppel but the majority of the court did not agree.

In the Pearson case, supra, the facts were very similar to those in the case at bar and we there held there was substantial evidence to support the Commission’s denial of compensation on the basis that the decedent was not an employee of the appellee pulpwood company. We wound up our decision in Pearson by quoting from Herman Wilson Lbr. Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487, as follows:

“ ‘* * * The question is not whether the testimony would have supported a finding contrary to the one made, but whether it supports the finding which was made.’ ”

We found in that case that there was substantial evidence to support the Commission.

We are in sympathy with Mr. Hollingsworth’s alleged statement to Evans that he thought Evans should be covered by Hollingsworth’s compensation insurance policy, but we are forced to the conclusion that he was not.

The judgment of the circuit court is reversed.


author: Conley Byrd, Justice.

text:
    Earl Eugene MURPHY v. STATE of Arkansas
    CR 73-104
    500 S.W. 2d 394
    Opinion delivered October 29, 1973

      James H. Pilkinton, for appellant.

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

In April, 1971, Earl Eugene Murphy, the appellant herein, entered a plea of guilty to a charge of robbery and was sentenced to 18 years. At the time of this sentence a charge of assault with intent to kill was pending against appellant. Following his incarceration for robbery, appellant’s motion for a speedy trial on the assault with intent to kill charge was granted. Appellant was tried before a jury and found guilty of this charge which grew out of the appellant’s shooting of the operator of the service station which he had robbed. The jury set appellant’s punishment at 21 years, and the court entered judgment ordering this latter sentence to run consecutively with the previous one.

No appeal was taken from this conviction, but appellant petitioned for post conviction relief under our Rule One procedures and was granted a hearing. The trial court denied all relief on the Rule One.

For reversal appellant contends that he should be granted a trial on the robbery charge to which he pleaded guilty. Appellant bases this contention on the allegation that he was under the influence of drugs at the time of the hearing at which he changed his plea from not guilty to guilty. Therefore, appellant argues, his plea was involuntary and should not have been accepted by the trial court.

Appellant testified at the Rule One hearing that he had concealed several capsules of “RJS”, a drug that “lifts your spirits”, on his body at the time of his arrest by taping them under his arm pit. He testified that he took the last one of these capsules the night before he went to court and changed his plea to guilty. He further testified that, as a result of the effects of this drug, at the time of entering his plea of guilty he did not know what he was doing and was not himself. Appellant in his brief argues that there is no showing that his plea of guilty was freely and understanding^ entered, and it therefore must be taken to have been involuntarily made.

We find no merit in this contention. The record of the Rule One hearing indicates that appellant recalled that the judge before whom the plea was entered had asked him if he was under the influence of alcohol or drugs, and appellant’s response was that he was not. Appellant was represented by court appointed counsel at the time of the plea. Counsel testified at the Rule One hearing that he had thoroughly discussed the nature and consequences of a plea of guilty with appellant prior to the entry of the plea, and that on the day of the plea appellant appeared normal and never indicated in any manner that he was under the influence of drugs.

It should be noted that there is nothing in the record which tends to inpugn the voluntariness of the guilty plea other than appellant’s own testimony at the Rule One hearing. See Parker v. State, 254 Ark. 878, 496 S.W. 2d 450 (1975). The balance of the record relative to this point indicates that the plea was voluntarily and understanding^ entered, and that the judge before whom the plea was entered made thorough inquiries as to the vol-untariness of the change in plea.

Appellant’s other point for reversal concerns the voluntariness of a confession introduced at the trial of the assault with intent to kill charge. Appellant argues that the trial court made no specific finding that the confession was voluntary. We find no merit in this contention. In the first place the record does not reveal any request by the appellant that the trial court make a specific finding on the voluntariness of the confession. Ballew v. State, 249 Ark. 480, 459 S.W. 2d 577 (1975). Furthermore, appellant did not raise the issue in his Rule One Hearing from which this appeal was taken. Bailey v. State, 254 Ark. 628, 495 S.W. 2d 150 (1975).

In any event the record reveals that an in-chambers hearing was held prior to the introduction of evidence of the confession. This hearing was held after the jury was sworn and prior to any testimony being taken, and the record shows that its purpose was to determine whether appellant had been advised of his rights prior to making statements to the sheriff and the deputy prosecutor subsequent to his arrest. At this in-chambers hearing the deputy prosecuting attorney and the sheriff testified that prior to making any incriminating statements the appellant had been advised of his right to have an attorney of his choice present or to have an attorney appointed for him. At the end of this hearing the trial judge said:

“The court holds that the defendant was appraised of his rights, that he understood them — that he intelligently understood them — and that he waived them.’’

Even if the appellant had properly raised the issue of the voluntariness of the confession in his Rule One petition, the in-chambers hearing conducted by the trial court was sufficient to satisfy the requirements of Ark. Stat. Ann. § 43-2105 (Supp. 1971), which provides for procedures to insure compliance with the constitutional requirement of a Denno hearing. Furthermore, the witnesses called by appellant at his trial testified to confessions he had made without objection.

Affirmed.


author: Frank Holt, Justice.

text:
    Wells R. McCALL, Jr. v. SOUTHERN FARM BUREAU CASUALTY INSURANCE Company
    73-108
    501 S.W. 2d 223
    Opinion delivered October 29, 1973
    [Rehearing denied December 10, 1973.]

      Jeff Duty, for appellant.

      Putman, Davis é1 Bassett, for appellee.
   Frank Holt, Justice.

A jury awarded $15,000 damages to appellant’s guest passenger for injuries sustained in an automobile accident and we affirmed. McCall v. Liberty, 248 Ark. 618, 453 S.W. 2d 24 (1970). Appellant, having liability insurance coverage of only $10,000, paid the $5,000 balance, plus interest and costs. He then brought the present action to recover from appellee, his insurance carrier, that excess of the coverage. Appellant asserted that appellee was negligent in refusing negotiations and settlement within the policy limits. On appeal we first consider the appellant’s contention that the court erred in directing a verdict against the appellant.

It is true that an insurer is liable to its insured for any excess judgment of the insured’s policy limits if the failure to settle the claim by the insurer is due to fraud, bad faith or negligence. Tri-State Ins. Co. v. Busby, 251 Ark. 568, 473 S.W. 2d 893 (1971). In the case at bar, only negligence is asserted and, of course, the burden to establish this issue was upon appellant. When we view the evidence, as we must do on appeal, most favorably to appellant against whom the verdict was directed, we are of the view the court correctly held there was no substantial evidence adduced to constitute a factual issue that the appellee was negligent in failing to settle the case within the policy limits.

The factual background surrounding the accident is sufficiently detailed in McCall v. Liberty, supra, for purposes of this opinion. At that trial for recovery of damages, the insured’s guest was represented by two attorneys. In the case at bar only one of those attorneys testified. He wrote a letter to appellee’s attorney preceding the trial stating that his client would settle the case “within the policy limits at this time.” The letter was made an exhibit to his testimony. He further testified that his only effort to settle “money-wise” on behalf of his client was to write this letter to appellee’s attorney to advise him he had the authority to “settle within the limits, whatever those limits might be.” In previous correspondence liability was acknowledged as a close question.

The appellant, the insured, testified that at one time, on mistaken information, he had told his insurer’s (appellee) attorney he would pay $2,500 out of his own pocket just “to get it over with.” The appellee’s attorney advised him not to do so as he felt there was no liability. Appellant was also individually represented by an attorney o£ his own choice in the original lawsuit. Appellant further testified although he was willing to pay his injured friend $2,500 out of his own pocket, he, as well as his own lawyer, agreed with appellee’s attorney there was no liability based upon the allegation of willful and wanton misconduct. His wife was of the same view. It does not appear that appellant’s personal attorney ever made a demand for settlement in the case. Appellant acknowledged that he was “willing to go to trial,” knowing he would have to pay a judgment in excess of $10,000, because “I really thought we would win it.”

In preparation of the trial, the appellee had the benefit of statements from the attending physician, as well as hospital and medical reports. Appellant was interrogated by appellee’s investigator and gave him his version of the accident. Furthermore, it was stipulated that a copy of the state police officer’s investigation was acquired by the appellee during its investigation. The appellant, the insured, himself expressed the view that he did not know of anything the appellee or his attorney “did wrong” in preparation of the defense to the case and was “well pleased” with the services of his personal attorney as well as appellee’s attorneys.

In summary, after investigation of the claim which was made by appellant’s guest against him, the appellee (insurer) was of the view that the appellant, its insured, was not guilty of willful and wanton misconduct which is required to make a host liable to his guest passenger. The injured party’s attorney, in a letter to appellee’s attorney, expressed, inter alia, that “the liability is the close question in this matter.” The appellant and his personal counsel appear to have agreed with appellee’s attorney that the asserted liability, based upon willful and wanton misconduct, was a very close question and a favorable jury verdict would result. In retrospect, appellant expressed no complaint about the preparation and defense of the case. In fact, appellant adduced no evidence from any witness that failure to evaluate and settle the lawsuit constituted negligence. Therefore, we hold, as previously indicated, appellant did not establish evidence legally sufficient to constitute a factual issue that appellee negligently failed to evaluate and settle the case.

Appellant relies upon Members Mutual Ins. Co. v. Blissett, 254 Ark. 211, 492 S.W. 2d 429 (1973). We do not consider this case applicable and it is distinguishable. Among the distinctions are that appellee’s (insurer) attorney, in the case at bar, never recommended that appel-lee pay any sum in setdement of the case. In Blissett the contrary occurred and, in fact, the insurer’s attorney recommended a larger settlement than was offered. There appears to be no conflict in the testimony as to how the accident occurred in the case at bar and there was in Blissett. There was only a formal demand here for settlement “within the policy limits,” whatever the limits might be, made by the injured party’s attorney and at the same time acknowledging it was a close case as to liability. Appellant’s personal attorney never made demand for settlement. In Blissett, a mistrial had occurred which clearly indicated the possibility of a recovery by the injured guest.

Appellant contends the court erred in excluding the proffered testimony of the state policeman who investigated the accident. The court sustained appellee’s objection to the officer’s estimated speed of the vehicle, based upon physical facts, at the time of the accident. It was agreed appellee had a copy of the officer’s report and the results of his investigation. It appears that the report was not offered in evidence by either party. Even if we should hold that his estimate of speed was admissible, we find it does not bolster appellant’s contention that appellee was negligent in handling the case in view of what we have previously said.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Gloria DAVIS, Clifton PHILLIPS and Robert Earl YOUNG v. STATE of Arkansas
    CR 73-115
    500 S.W. 2d 775
    Opinion delivered November 5, 1973

      Billy Satterfield, for appellants.

      Jim Guy Tucker, Atty. Gen. by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellants, Gloria Davis, Clifton Phillips, and Robert Earl Young, were convicted by the Pulaski County Circuit Court, sitting as a jury, of possessing stolen property with the intent to deprive the true owners thereof, knowing that the property was stolen. Appellants were sentenced to five years imprisonment each, with four years of such sentences suspended. From the judgment so entered, appellants bring this appeal. For reversal, it is first urged that the court erred in overruling appellants’ motion to suppress State’s Exhibits 1, 2, and 3, and second, it is argued that the evidence was not sufficient to support the conviction. We proceed to a discussion of each point.

Exhibit 1 is a Palm Beach men’s suit owned by Dillard Department Stores, which operates Pfeifer-Blass Companies in Arkansas; Exhibit 2 is a ladies’ suit owned by Dillard, and Exhibit 3 is a men’s navy blue leather jacket owned by David’s of Arkansas. Officer Johnny Maack of the Little Rock Police Department made the arrest of the appellants while they were travelling in their automobile, and discovered the aforementioned property in the car; he testified that he turned the property over to Detective Lieutenant George M. Knestrict. Detective Knestrict testified that he stored this property in the Service Division in care of Officer Crump, signing signature cards at the time. He checked the items out from Crump when a hearing was held in municipal court and then checked them back in. He testified that he checked them out again from Officer Crump on the day of the trial, all three being wired together with a tag, and the records reflecting that they had been kept in Crump’s custody; in the courtroom, he gave Exhibit 3 to Mr. Overman, employed by David’s of Arkansas, who identified the coat from the witness stand. The officer stated that he turned the other two items over to Thomas Dupriest in the courtroom, this roan being employed by Dillard. Dupriest identified both the men’s and ladies’ suits as property of Dillard. It is appellants’ contention that turning the property over to the named individuals before it was identified and introduced into evidence represented a break in the chain of evidence, it being asserted that these individuals were not proper custodians. We do not agree that there is merit in this argument. Both store employees testified that they had received the exhibits from Detective Knestrict in the courtroom that same day and they positively identified them as the properties which had been taken. We find no break in the chain; to the contrary, the possession of the items, and the transmission from one person to another is clearly shown. To paraphrase what we said in Fight v. State, 254 Ark. 928, 497 S.W. 2d 262, there is no word of testimony that these items were different from the articles that were taken from the store, and the court did not err in permitting their introduction.

As to the second point, it is first asserted that the State failed to prove that the items were in fact stolen. or that appellants knew they were stolen. We disagree. The testimony by Mr. Dupriest and Mr. Overman details that these items were not sold and were missing from the store; it was pointed out by Dupriest that the stubs on the men’s suit were still in place when the suit was recovered. The ladies’ suit was identified by a different type stub made in the Little Rock warehouse which requires a special tool to insert. Mr. Over-man testified that he observed the leather jacket in the store at David’s about an hour and a half before two of the appellants entered the store; that it was a size 42, and the only one of that size in the store, and he identified it as belonging to that concern. Gary Griffin, an employee of the Dillard store, testified that two of the appellants, Gloria Davis and Clifton Phillips, were occupants of a red Chevrolet Impala with light stripes down the sides, and they pulled up and parked in front of the store just across the street; that he observed the two (subsequently identified) as they got out of the car and came into the store. He said that his attention was attracted because the driver of the automobile, the third appellant, put money in the parking meter, got back in the car, and appeared to be very nervous. The witness stated that the man and woman subsequently came back out of the store and he observed the woman remove some merchandise from under her dress; that the driver put something on the floorboard and the two first mentioned went back into the store, subsequently returned to the car and as it drove away, he observed the woman take something from underneath her dress. She was wearing a purple dress.

Barbara Mueller, likewise an employee of Dillard, also observed the woman and man go into the store and go back to the car, and she said that she saw the woman take something from under her dress, and then return to the store. Subsequently, after getting off from work, she saw these people, together with another man, in their car being questioned by police officers. The officers asked if she could identify a ¿oat, and, as she testified, “It’s from David’s, because I knew what their tickets looked like.” Officer Maack testified that he had received a call that a theft had occurred at the Dillard store and had been given a description of the car and subjects; that he stopped the car occupied by appellants because it conformed to the description and he observed four articles of clothing in the automobile, three of them being State’s Exhibits 1, 2, and 3.

It is also asserted that the State failed to prove that appellants were in possession of the items, and failed to show an intent by appellants to deprive the true owners of possession. We cannot agree that there is merit in this assertion. In Daniels v. State, 168 Ark. 1082, 272 S.W. 833, it was pointed out that the rule has long been maintained by this court that unexplained possession of property recently stolen constitutes sufficient evidence to warrant a conviction and in Boyette v. State, 254 Ark. 320, 493 S.W. 2d 428, we observed that when the defendant was found in possession of stolen merchandise, the court was not required to accept or believe his explanation. See also Bond v. State, 230 Ark. 962, 328 S.W. 2d 369.

All three of the appellants testified, Gloria Davis and Clifton Phillips testifying that they paid Robert Young to take them to town; they admitted being in both stores, but denied taking any clothing. Each said that the items were in the car, but they knew nothing about them. Young testified that when the other two went into Pfeifer-Blass, he got out of the car and talked to a friend, Wesley Johnson; that he had worked with Wesley at Pine Bluff. From the record:

“Well, I get in my car, but when I was standing out there talking to Wesley, well, he had this bag. He said, ‘Say, man, I had to take that from Pine Bluff.’ We got to talking. Me and him work together. ### And then he said, ‘Take this bag. I am going up here to get me some shoes in Phillips.’ He said, ‘You come up there and pick me up, man.’ He said, ‘Make sure you get me in the morning on time,’ he said, ‘so I can talk to Mrs. Isabell.’”

When asked as to the whereabouts of Wesley Johnson, appellant Young replied that he had subsequently been killed.

We think it is apparent from the outline of the State’s testimony herein set out, that there was ample and substantial evidence to support the conviction, and we so find.

Affirmed.

      There is no dispute but that appellants Davis and Phillips were in both stores that afternoon.

      The fourth piece of clothing was a ladies’ coat with fur around the collar, but the owner had not been determined at the time of trial.


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

text:
    HOME INSURANCE COMPANY v. Janice COVINGTON et al
    73-123
    501 S.W. 2d 219
    Opinion delivered November 5, 1973
    [Rehearing denied December 10, 1973.]

      Davis, Plegge ér Lowe and Boyett ér Morgan, for appellant.

      Lightle, Teddler ir Hannah, Leroy Froman and John C. Ward, for appellees.
   George Rose Smith, Justice.

This is a personal injury suit. Two of the appellees, Janice Covington and her mother-in-law, Beatrice Covington, were injured in a traffic collision in the city of Searcy while they were riding in an ambulance owned by J. & J. Ambulance Service, Inc. The ambulance company did not have liability insurance upon its vehicle. The injured plaintiffs therefore brought suit against their own insurance company, the appellant, under an uninsured motorist clause, and against the other áppellee, Evelyn M. Lewis, who was driving the car that collided with the ambulance. The jury, attributing all the negligence to the driver of the ambulance, made awards of $750 to Janice Covington and $5,000 to Beatrice Covington. For reversal the appellant relies upon three asserted errors in the court’s instructions to the jury.

The most serious contention is that the trial court was wrong in ruling as a matter of law that Beatrice Covington was not a guest of the ambulance company. The pertinent facts are that the two women were together upon a street in Searcy when the younger woman, who was pregnant, fainted. Someone called for an ambulance, which arrived promptly. The driver, Charles Steward, had no assistant. A bystander helped him place the patient on a cot in the back of the ambulance. Steward asked if there was anybody with the younger Mrs. Covington. Beatrice Covington said, “I am,” and got in the vehicle. She sat in the back of the ambulance and bathed her daughter-in-law’s face with a wet cloth. On the way to the hospital Steward, driving above the speed limit, ran a stop sign and collided with Mrs. Lewis’s car. The ambulance company’s fee of $25.00 was paid by Beatrice Covington’s husband.

The trial court was right in holding that the elder Mrs. Covington was not a guest. In Simms v. Tingle, 232 Ark. 239, 335 S.W. 2d 449 (1960), we defined a guest, with reference to the guest statute, in this language:

The geier ' rule for determing the status of a passenger in an automobile is that if the transportation or carriage in its direct operation confers a benefit only on the person to whom the ride is given and no benefits other than such as are incidental to hospitality, companionship, or the like, upon the person extending the invitation, the passenger is a guest within the statutes . . . , but if the carriage tends to the promotion of the mutual interests of both the passenger and the driver for their common benefit, or if the carriage is primarily for the attainment of some objective or purpose of the operator, the passenger is not a guest.

We have also noted that the guest statute was passed to remedy the evil of collusive suits where the real defendant is an insurance company, with both the host and the guest interested in establishing liability. Ward v. George, 195 Ark. 216, 112 S.W. 2d 30 (1937). In the case at hand there was no reason for Mrs. Covington and Steward to establish by collusion a fictitious liability on the part of the ambulance company.

No relationship of hospitality or companionship existed between Mrs. Covington and Steward. To the contrary, the transportation was a business trip involving (as we shall see) a common carrier and its passengers. It was a single transaction. We find in the proof no fact that would warrant the jury in dividing the transaction into two parts, one being compensated and the other being gratuitous.

Upon similar facts the Supreme Court of Texas reasoned that a person in Mrs. Covington’s position might be regarded as a guest of the patient but not as a guest of the ambulance company. Cedziwoda v. Crane-Longley Funeral Chapel, 155 Tex. 99, 283 S.W. 2d 217 (1955). We agree with that court’s conclusion: “Under the facts of this case, a sick person who hires an ambulance for transportation certainly has a right to have someone ride with her in the ambulance. The purpose of Article 6701b is to prevent fraudulent collusion between an insured and a guest. The situation at bar does not fall within the purpose of the statute.”

It is next contended that the trial court erred in placing upon the ambulance company the high standard of care that a common carrier owes to its passengers. See AMI 1701 and 1702. According to the ambulance company’s own testimony it was engaged in the business of carrying passengers for hire. Upon the proof the trial court was justified in concluding that the ambulance company was a common carrier within our statutes and cases. Ark. Stat. Ann. § 73-1758 (a) (7) (Repl. 1957); Merchants’ Transfer & Whse. Co. v. Gates, 180 Ark. 96, 21 S.W. 2d 406 (1929); Arkadelphia Milling Co. v. Smoker Mdse. Co., 100 Ark. 37, 139 S.W. 680 (1911).

Finally, the appellant contends that the trial court should have given AMI 912, imposing upon Mrs. Lewis the duty of driving her car over to the curb and stopping when she heard the ambulance’s siren. In making this argument the appellant concedes that the ambulance was not in fact an emergency vehicle within the purview of AMI 912. Walden v. Hart, 243 Ark. 650, 420 S.W. 2d 968 (1967). Nevertheless, the appellant insists that the instruction should have been given, because Mrs. Lewis could not see the ambulance when she first heard its siren and was therefore under a duty to act upon the assumption that the siren was that of an authorized emergency vehicle, such as a police car or fire engine.

That reasoning is unsound. Needless to say, if the siren had proved to have been that of an authorized emergency vehicle, Mrs. Lewis would have acted at her peril in not doing what the law required her to do in the situation. But the ambulance was not an authorized emergency vehicle; so Mrs. Lewis’s duty was merely that of exercising ordinary care. For the court to have given the requested AMI instruction would have clothed the ambulance company with a protected status to which it was not entitled by law.

Affirmed.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I would reverse the judgment in this case because I think that there was a question of fact as to whether Mrs. Beatrice Coving-ton was a guest.

Ordinarily the issue of whether one is a guest is a question of fact, and this court, in many situations where the evidence seems no less conclusive than it is here, has refused to hold that a plaintiff was or was not a guest. See Austin v. Stricklin, 240 Ark. 555, 400 S.W. 2d 671; Buffington v. Wright, 239 Ark. 138, 388 S.W. 2d 100; Simms v. Tingle, 232 Ark. 239, 335 S.W. 2d 449; Brand v. Rorke, 225 Ark. 309, 280 S.W. 2d 906; Corruthers v. Mason, 224 Ark. 929, 277 S.W. 2d 60. See also, Dieter v. Byrd, 235 Ark. 435, 360 S.W. 2d 495. It is only where fair-minded men could not draw different conclusions from the evidence that we will say that a jury question is not presented. Buffington v. Wright, supra.

In Corruthers v. Mason, supra, in which we held that a jury question was presented on the very issue now before us, we relied upon and applied the following language from Blashfield “Cyclopedia of Automobile Law and Practice,” (Vol. 4, p. 326):

Where a dispute exists as to what were the respective purposes or conditions for or upon which the transportation was undertaken, relative to the nature and existence, if any, of the benefits conferred upon the respective parties, it is ordinarily a question of fact whether or not the invitee was a guest within the meaning of the statutes.

It seems to me that the language quoted governs here and requires us to say that there was a question of fact. But there is also appropriate language in Simms v. Tingle, 232 Ark. 239, 335 S.W. 2d 449, cited in the majority opinion, which seems to dictate a holding that there is a question of fact in this case. We said:

We have repeatedly held that when the status of an occupant of a car is questioned and conclusions must be drawn from the evidence, then the issue is one for the jury. Corruthers v. Mason, 224 Ark. 929, 227 S.W. 2d 60; Whittecar v. Cheatham, 226 Ark. 31, 287 S.W. 2d 578; Rogers v. Lawrence, 227 Ark. 117, 296 S.W. 2d 899.

While the testimony is undisputed, I submit that fair-minded men could reach different conclusions as to whether any objective, purpose or interest of the ambulance owner or driver was served by Mrs. Covington’s riding in the ambulance.

Because of the authorities cited above, I find no necessity for resort to decisions from other jurisdictions. If it is necessary, I‘ would reject the Texas authority for two reasons. First, it seems to be a minority rule, but, more significantly, it is less harmonious with our own decisions than those following the contrary rule. Incidentally, it should be noted that this decision was by a divided court, one judge concurring and three dissenting.

In Vogreg v. Shepard Ambulance Service, 44 Wash. 2d 528, 268 P. 2d 642 (1954), the Supreme Court of Washington, en banc, without dissent, the wife of the patient rode in the ambulance, having engaged it and having been assisted into it and shown where to sit by the driver and an attendant. No separate charge was made for transporting her. The wife said that she contracted to pay the bill. There the trial court had held that the wife was a guest as a matter of law, and directed a verdict at the close of her case as plaintiff. The Washington court said:

In the instant case, nothing determinative was said on this question (if the jury believed appellant’s testimony) when the implied contract was made. A jury might well conclude that appellant’s carriage was as much a part of that contract as her husband’s. All reasonable minds would not reach the opposite conclusion.
The court erred in taking the question from the jury.

Although Louisiana did not have a guest statute, there are two cases from that jurisdiction which should be considered, because the status of the ambulance passenger determined the extent of the duty of the ambulance driver to the passenger. It appears from those cases, that if the passenger was a licensee or guest, the driver owed the duty of ordinary care and not to wilfully injure him; on the other hand, if the passenger was not a guest, the ambulance operator is charged with the highest practicable degree of care. Morales v. Employers Liability Assur. Co., 7 So. 2d 660 (La. App. 1942); Rushing v. Mulhearn Funeral Home, 200 So. 52 (La. App. 1941). In both cases, the passenger was held to be a “guest” or “licensee” as a matter of law.

For the reasons stated, I respectfully dissent on this point only.


author: Lyle Brown, Justice. John A. Fogleman, Justice,

text:
    Helen STURDIVANT, Adm’x v. City of FARMINGTON, Ark.
    73-137
    500 S.W. 2d 769
    Opinion delivered November 5, 1973

      Jones ó* Segers, for appellant.

      James E. Evans Sr., for appellee.
   Lyle Brown, Justice.

This suit in tort was brought by appellant against appellee, City of Farmington. It arose out of a fatal collision between the city marshal of Farmington and appellant’s intestate, a minor. The city’s demurrer to the complaint was sustained on the ground that municipalities are immune from tort action. Act 165, 1969; Ark. Stat. Ann. § 12-2901 (Supp. 1971). On appeal it is asserted that the recited act makes it mandatory that the State’s political subdivisions carry liability insurance and that failure to do so makes the city amenable to a tort action.

In Parish v. Pitts, 244 Ark. 1239, 429 S.W. 2d 45 (1968), we set aside the rule of law established by precedent which granted immunity to municipalities from tort liability. The first session of the General Assembly thereafter, referring specifically to Parish v. Pitts, enacted Act 165 (Ark. Stat. Ann. § 12-2901 — 03) (Supp. 1971):

Sec. 1. It is hereby declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.
Sec. 2. Each county, municipal corporation, school district, special improvement district, or other political subdivisions of the State is hereby authorized to provide for hearing and settling tort claims against it.
Sec. 3. All political subdivisions shall carry liability insurance on all their motor vehicles in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act (Ark. Stat., § 75-1402 et seq.; Act 347 of 1953, as amended).
Sec. 4. It is hereby found and determined by the General Assembly that because of the decision of the Arkansas Supreme Court in Parish v. Pitts, 244 Ark. 1239, municipalities and all units of local government are in imminent danger of bankruptcy because of tort lawsuits and vital public services are in danger of being discontinued. Therefore, an emergency is hereby declared to exist and this Act being immediately necessary to protect the public peace, health and safety, shall take effect immediately on its passage and approval.

We have had at least three cases in which we have discussed Act 165. Sullivan v. Pulaski County, 247 Ark. 259, 445 S.W. 2d 94 (1969); Chandler v. Pulaski County, 247 Ark. 262, 445 S.W. 2d 96 (1969); Williams v. Jefferson Hospital Ass’n., 246 Ark. 1231, 442 S.W. 2d 243 (1969). In those cases we did not discuss the precise question now before us, namely, that the failure to carry liability insurance makes the political subdivision amenable to a tort action.

The preamble to Act 165 states one of the purposes of the act to be “to require all political subdivisions to carry liability insurance on their motor vehicles”. Then Section 3 says “they shall carry liability insurance on all their motor vehicles”. We think it was the intent of the General Assembly to require such liability insurance.

Two of the fundamental purposes of Act 165 are (1) to set aside Parish v. Pitts, supra, and (2) to make it possible for persons injured by municipally owned vehicles to have redress for negligence. If we hold that the city of Farmington is entitled to the immunity afforded it under Act 165 and at the same time hold that it is not mandatory that it comply with the liability insurance provision thereof, then we have destroyed the second purpose of the act above enumerated. The mandatory provision for carrying liability insurance is so strongly and clearly stated that we cannot agree to such emasculation. We think, and so hold, that any city which fails to conform to the insurance requirement places itself in the posture of being responsible, as would a self-insurer, in case it is found to be liable, in an amount not to exceed the minimum amount prescribed in the Motor Vehicle Safety Responsibility Act. See Ark. Stat. Ann. § 75-1466 (Supp. 1971). We think it reasonable to conclude that the legislature intended that the public be protected to the extent of the recited limits. That may be done in only one of two ways, namely, insurance or self-insurance. Our interpretation avoids opportunities to evade the act. An interpretation which defeats evasion is favored in the law. 50 Am. Jur., Statutes, § 361. Then in Woodruff v. State, 3 Ark. 285 (1840), it was said: “And such construction ought to be put upon it, [the act] as will not suffer it to be eluded”. And in Sutherland, Statutory Construction (4th Ed.) Vol. 2A, § 57.01 we find this significant statement: “No statutory provisions are intended by the legislature to be disregarded; but where the consequences of not obeying them in every particular are not prescribed, the courts must judicially determine them. In doing so they must necessarily consider the importance of the literal and punctilious observance of the provision in question to the object the legislation is calculated to serve.”

Reversed and Remanded.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I cannot agree with the court’s construction of the act, and I would affirm the judgment. Had the legislature said, or indicated any intent whatever to say, what the court says today I would be bound to agree. I feel the court has again acted legislatively in the municipal immunity field. I need not dwell on my differences with the majority in Parish v. Pitts, 244 Ark. 1239, 429 S.W. 2d 45, however, because my position in that case leads directly to a construction of the statute, which is the same approach as that taken by the majority.

Previous decisions mentioning Act 165 of 1969, the General Assembly’s reaction to Parish v. Pitts, are not directly in point, because the decision in Parish v. Pitts had no direct bearing upon tort liability of either counties or charitable institutions. The court’s remarks about the act are pertinent, however.

In Sullivan v. Pulaski County, 247 Ark. 259, 445 S.W. 2d 94, we deemed the action of the General Assembly sufficient reason why a suitor in tort against the county could not prevail, calling attention to Act 165. There we said:

This statement of public policy is plain and unambiguous, and leaves no room for doubt.

In Chandler v. Pulaski Country, 247 Ark. 262, 445 S.W. 2d 96, decided the same day, we said that the reasoning in Sullivan applied. Then we recited the reasoning:

There, we point out that the General Assembly of 1969 enacted legislation which became Act 165, the legislation declaring the public policy of the State of Arkansas to be “that all counties, municipal corporations, school districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.”

To the same effect, see Reeme and Rhodes v. Natural Gas. Imp. Dist., 247 Ark. 983, 448 S.W. 2d 647. In Williams v. Jefferson Hospital Association, 246 Ark. 1231, 442 S.W. 2d 243, in rejecting a plea that we abandon the doctrine of charitable immunity, we said:

There is another reason why the Parish case is not controlling. The Legislature acted within less than one year after Parish v. Pitts. By Act 165 of 1969 that holding was overturned. That Act declares the public policy to be that all political subdivisions of the State be immune from tort liability. The Act does require all such subdivisions to acquire public liability insurance on their vehicles. It is further provided that such governmental units may hear and settle tort claims against them. It can well be argued that this expression of legislative intent to retain governmental immunity would bring forward a similar expression in the field of charitable immunity if this court abrogated the latter rule.

True it is, we were dealing with immunities of agencies other than municipalities. It is also true that the requirement of automobile liability insurance had no application in any of these cases. It is significant that in none did we find any qualifying “ifs,” “ands” or “huts” in the statute. This is attributable to the fact that there are none, or were not until the court imported them today. It is also significant to me that the language quoted from Williams is consistent with my construction of the act. That language indicates the appropriate procedure in tort claims against municipal corporations.

The language of Section 1 of the act says without qualification that “no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.” This is a positive and unequivocal statement and there is no language qualifying or restricting this language anywhere in the act, even if we could consider the act itself ambiguous, and look to the title and emergency clause. Section 5 definitely does not limit, qualify or restrict this positive prohibition. We have said that this statement of public policy is unambiguous. If so, no resort to the title or the emergency clause is proper. But if it is ambiguous enough to permit this, certainly nothing can be found to mandate the construction given the act by the majority in either. The emergency clause is in the majority opinion. The title reads:

AN ACT to Declare It to Be the Public Policy of the State of Arkansas That the State and Its Political Subdivisions Shall Not Be Liable for Tort Under the Laws of the State of Arkansas and to Provide That No Action Shall Be Maintained Therefor; to Require All Political Subdivisions to Carry Liability Insurance On Their Motor Vehicles; to Declare An Emergency; and for Other Purposes.

The patent effect of the majority opinion is to create a cause of action, otherwise nonexistent, by reason of the nonfeasance of municipal officers, something heretofore unheard of in Arkansas. It was clearly and unequivocally held in City of Little Rock v. Holland, 184 Ark. 381, 42 S.W. 2d 383 (aside from and independent of the holding that a municipality is not liable for the negligence of its officers and agents in the performance of its governmental functions), that it is well setded that a municipality is not liable for the nonfeasance of its officers and agents. We quoted extensively from Collier v. Ft. Smith, 73 Ark. 447, 84 S.W. 480, 68 L.R.A. 237, as follows:

There is no necessary conflict between the earlier case holding the city liable for misfeasance of its officers and servants, and the two later cases, holding that cities and towns are not liable for nonfeasance. This distinction is not without reason, for, in the absence of a statute expressly imposing liability to individuals for nonperformance of a duty to the public, none will be implied, though liability might be implied from the commission of a positive wrong, whereby an individual might suffer injury. Nor is this distinction without high authority to support # * #

Resort to 18 McQuillin (Third Edition Revised) reveals the following rules:

A municipality can be compelled through its officers to comply with the law, but because of failure or refusal in this respect no obligation or penalty not provided by law is thereby imposed upon the municipal corporation, (p. 128, § 53.08)
The act of entering into an insurance contract on the part of the municipality is a governmental act, for neglect of which a city is not liable in tort, (p. 190, § 53.28)

In construing Act 46 of 1947, which permitted, but did not require, municipal corporations to carry liability insurance, and in holding that the insurer could not assert the municipality’s immunity from suit as a defense in a direct action on the policy, we relied upon the comments of that eminent Arkansas legal scholar, Dr. Robert A. Leflar, 1 Ark. L. Rev. 215. See Aetna Casualty & Surety Co. of Hartford, Conn. v. Brashears, 226 Ark. 1017, 297 S.W. 2d 662. Among other things, Dr. Leflar said:

It has generally been agreed that the State can by statute permit its lesser agencies to be sued either in tort or contract, though such permission has not generally been given in Arkansas. Act 46 may be deemed a sort of indirect permission, whereby the agency is allowed to contract for such suits to be brought, not against itself, but against its contractual representative who is indemnified by premiums paid to the representative by the agency. As to contracts hereafter made, it is possible that this device may be held to be effectual to give a cause of action to injured persons.

I submit that Section 3 of Act 165 of 1969, by which the carrying of automobile liability insurance by municipalities was made mandatory rather than optional, had exactly the same effect and none other, i.e., it directed the insured city to contract for such suits to be brought against the city’s insurer who is indemnified by the payment of premiums. The mere change from a permission to carry insurance to a direction to do so certainly should not be construed to create an exception from a clearly and positively declared immunity from suit. The result reached by the majority actually reads into the statute either an exception to the immunity stated or granted (depending upon one’s point of view) or an implied limited waiver of immunity from suit by the failure of municipal officers to acquire the required policies. I insist that there is no indication that the legislature so intended, or that it intended that a liability be imposed by nonfea-sance of municipal officials.

This situation is not unprecedented. In Knauer v. Ventnor City, 13 N.J. Misc. 864, 181 A. 895 (1935), an effort was made to recover on behalf of a policeman the amount of a judgment against him on a cause of action arising out of his negligent operation of a police car while in pursuit of his duties. Liability was based upon a statutory provision similar to that before us. It provided that ‘'[ejvery political subdivision in this State shall cause to be insured the drivers of its motor cars * * * against liability for damages resulting in personal injury or death or damage to property caused by reason of the operation and use of such motor cars * * * . Said insurance may be issued in the name of the political subdivision, but it shall insure the authorized drivers # # * against liability for damages to property, in any one accident, to an extent of not less than one thousand dollars and against liability for injuries or death of one person in any one accident to an extent of five thousand dollars, and against liability for injury or death of more than one person, in any one accident, of not less than ten thousand dollars.”

The New Jersey court said:

The Legislature manifestly deemed it expedient to establish in the governmental affairs of such municipalities an administrative policy which would afford the drivers of munidpally-owned vehicles the designated protection by insurance against the stated liability. The adoption of such a policy was not intended solely for the benefit of the certain individuals who were to be protected by the insurance. It was undoubtedly determined that the adoption of such a policy would be in the public interest. Recognizing, for example, that the drivers of the fire and police department vehicles were rendering a public service and in the performance of such service might incur liability for injuries to others, it was undoubtedly considered to be in the public interest to afford not only protection to such drivers against liability, but also to provide a means by which such liability might be discharged. The Legislature committed the accomplishment of this protective measure to the governing bodies of the municipalities, but did not prescribe any penalty for the failure of the municipal officials to comply with the directions of the statute, and did not impose any liability on a municipality in the event that any such driver suffered loss in consequence of the failure of the municipal officials to comply with the terms of the statute. Assuming that the duty of the governing body of the city to insure the drivers of its vehicles was mandatory, it was nevertheless a duty of a governmental character. The neglect or failure of the governing officials to obey the mandate of the statute does not of itself create a cause of action maintainable against the municipality in behalf of one who was detrimentally circumstanced by the dereliction of the governing officials.
In this action the alleged liability of the city is predicated solely upon the failure and neglect of the city council to perform a governmental duty. No such action is maintainable unless afforded by statute. It is appropriately the function of the Legislature to authorize the prosecution of a civil action against a municipality by an individual who has suffered injury in consequence of the neglect of the municipal officials to perform a public and governmental duty, if the creation of such a cause of action is deemed proper and expedient. The obligation of the municipality to perform the governmental duty may be imposed by statute, but the doctrine still prevails that the neglect of a municipal corporation to perform, or its negligence in the performance of, a public duty imposed on it by law, is a public wrong and cannot constitute the basis of a civil action by an individual who has suffered particular damage by reason of such neglect.

In a later case, Osback v. Lyndhurst Tp., 7 N.J. 371, 81 A. 2d 721 (1951), the New Jersey Supreme Court rejected a similar claim in which it was urged that a liability should be imposed upon the city because the lower court decision on the basis of Knauer effectively took away the benefit of the statute from the two classes of people upon whom it was intended to be conferred. The court, relying upon the well-established rule that an action will not lie in behalf of an individual who has sustained a special damage by reason of the neglect of a public corporation, or its agents, to perform a public duty, said:

The statute, however, while stating the requirement of public liability insurance in mandatory language, does not provide a remedy for those who may suffer through a failure to comply with its terms. If it had done so, the right to recover would be clear.

The underlying principle followed in these cases has been recognized in Arkansas. In Gregg v. Hatcher, 94 Ark. 54, 125 S.W. 1007, 27 L.R.A. (n.s.) 138, we quoted, with approval, from 20 American and English Encyclopedia of Law (Second Edition), pp. 1193 and 1194. That quotation included the following language:

So far as municipal corporations exercise powers conferred on them for purposes essentially public, they stand as does sovereignty whose agents they are, and are not liable to be sued for any act or omission occurring while in the exercise of such powers, unless by some statute the right of action is given; and where, the particular enterprise is purely a matter of public service for the general and common good, it makes no difference whether it is mandatory, or whether only permitted and voluntarily undertaken.

Without further elaboration, I feel the result reached is inappropriate only because of the means and agency through which it is reached. Not only would I have no quarrel with that result had it been reached by the General Assembly, I would agree that it was desirable. If the General Assembly had intended that result it could have said so in a few simple words. We must presume that the legislature knew that nonfeasance of municipal officers does not give rise to a cause of action against the municipality. If the effect of this decision were limited to this particular act, perhaps I should not protest so strongly. As a precedent it can be very far-reaching, and can be the vehicle for many quasi-legislative actions by this court under the guise of statutory construction.

I must add that there is an additional reason why I would affirm the action of the trial court. Failure of the municipal officers to procure the required liability insurance does not mean that Section 2 of the act may not be invoked. Section 2 is clearly applicable to all tort claims, even those arising out of operation of motor vehicles and particularly those which might be for an excess over the limits of automobile liability insurance. There is nothing in the complaint to indicate that appellant had sought to invoke procedures under that section or that the city had not established them.

      Municipal officers cannot waive or relinquish the rights of the municipality in the absence of express authority. 3 McQuillin, Municipal Corporations (Third Edition Revised) 524, § 12.126.


author: Lyle Brown, Justice.

text:
    Joseph HORNER v. STATE of Arkansas
    CR 73-117
    501 S.W. 2d 217
    Opinion delivered November 5, 1973
    [Rehearing denied December 10, 1973.]

      Jeff Duty, for appellant.

      Jim Guy Tucker, Atty, Gen. by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was convicted of burglary, and of robbery, growing out of the same incident, and was sentenced to five years on each charge. A second person similarly charged entered a plea of guilty. For reversal it is contended that the court erred in admitting statements made by appellant to the sheriff anil another to the prosecuting attorney.

Appellant made an incriminating oral statement to the sheriff on the day of his arrest. It is appellant’s contention the State did not establish that appellant was given the Miranda warnings. The sheriff testified he first advised appellant of his constitutional rights but did not elaborate, that is, he did not specify the particular rights of which appellant was advised. Counsel for appellant did not on cross-examination ask the sheriff to list the particular rights given. Appellant offered no testimony on the point. We know of no case authority which requires an officer to particularize the constitutional rights given unless he is asked to do so on cross-examination, or, if deemed necessary, on rebuttal.

With respect to a written statement given the prosecuting attorney it is again asserted that the State did not establish that adequate warnings under Miranda were given. A few days after appellant’s interview with the sheriff, appellant was taken before the prosecuting attorney. A criminal investigator from the sheriff’s office accompanied appellant to the prosecutor’s office. That officer testified that appellant was there advised of his constitutional rights. There was no cross-examination on the point and no evidence was offered to refute the testimony of the officer.

The other objection here made to the introduction of the statement taken by the prosecuting attorney is based on Ark. Stat. Ann. § 43-915 (Repl. 1964):

In all cases where two (2) or more persons are jointly or otherwise concerned in the commission of any crime or misdemeanor, either of such persons may be sworn as a witness in relation to such crime or misdemeanor, but the testimony given by such witness shall in no instance be used against him in any criminal prosecution for the same offense.

The contention is without merit because we have held that the recited statute “applies only to proceedings before a grand jury.” Rhea v. State, 226 Ark. 581, 291 S.W. 2d 505 (1956). In Rhea we also said:

The statute was enacted as § 67 of Chapter 45 of the Revised Statutes of 1838. This chapter relates to criminal procedure and, as may be readily seen from the table of contents which follows its title, is subdivided to conform tó the various steps involved in a criminal proceeding. Sections 59 through 77 define the procedure to be observed by grand juries. When § 67 is read together with the sections that immediately precede and follow it there can be no doubt that it pertains only to testimony taken in the course of a grand jury investigation.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Donald Louis CURTIS v. STATE of Arkansas
    CR 73-121
    500 S.W. 2d 767
    Opinion delivered November 5, 1973

      Eugene Hunt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen. for appellee.
   John A. Fogleman, Justice.

Donald Louis Curtis, then 13 years of age, was charged on October 1, 1970, with three counts of burglary, two counts of grand larceny and one count ©f rape. After advice by Jack Holt, Jr., an attorney employed by his parents, appellant entered a plea of guilty and was sentenced to serve 30 years in the Arkansas Department of Corrections. His petition for postconviction relief under Criminal Procedure Rule 1 was denied on March 7, 1973. In that petition he admitted guilt of two counts of burglary, but denied guilt of all other charges. He asserts two alleged errors as a basis for reversal. We find no merit in either assertion.

Appellant first asserts that the circuit judge erred by admitting his alleged confession into evidence during the hearing on his petition for postconviction relief. Even if we should agree with him that the alleged confession was involuntary, the error was harmless. One who enters a plea of guilty after he has had advice of counsel may not thereafter raise claims relating to deprivation of constitutional rights prior to his plea, except by showing that the plea was not voluntarily and intelligently entered because the advice he received from counsel was not within the range of competence demanded in criminal cases. Clark v. State, 255 Ark. 13, 498 S.W. 2d 657. Appellant, now represented by another attorney, has not even made this contention, much less the required showing.

Since appellant was so young at the time, we have considered other factors in addition to his failure to argue that his attorney’s advice was not in accord with required standards. We cannot say there is no eviden-tiary support for the trial court’s findings, among others, that: appellant’s plea of guilty was entered freely and voluntarily; both he and his mother fully understood the consequences of the plea; the plea and sentence had been arrived at through plea negotiations between his attorney and the prosecuting attorney; he was fully, completely and adequately represented by his retained counsel, both prior to, and at the time of, the plea of guilty. We note that these findings were made by a judge other than the one who accepted the plea of guilty.

Furthermore, the record discloses that appellant’s attorney had filed a motion challenging the validity and voluntariness of the confession, a motion for continuance and a motion for trial setting. Appellant testified that he advised his attorney of all the circumstances surrounding the giving of his statement to the officers. There was testimony by Mr. Fletcher Long, deputy prosecuting attorney in St. Francis County, showing that negotiations extending over a period of several months had been initiated by Holt. After Holt had filed motions for a continuance, for a bill of particulars, for disclosure of documents, and for severance of trial, Long said that he permitted Holt to examine everything in the prosecuting attorney’s files. He stated that, after discussions about the voluntariness of the youth’s statements to the officers and an investigation by Holt, this attorney conceded that he could not discredit the testimony of the officers on this subject. Long also testified that, because of Curtis’ age, he took the precaution of assuring himself of the voluntariness of the statement by interviewing young Curtis, after having advised the youth of his constitutional rights. It is not unreasonable to assume that there was an appropriate basis for appellant’s failure to challenge the competence of his attorney’s advice.

Appellant’s other contention is that the state failed to establish his capacity, at age 13, to commit the crimes with which he was charged. His guilty plea was itself a conviction, and, after it was entered, nothing remained except to enter judgment and fix punishment. Kercheval v. United States, 274 U.S. 220, 47 S. Ct. 582, 71 L. Ed. 1009 (1927). It was, in itself, an admission of all the elements of the charges. McCarthy v. United States, 394 U.S. 459, 89 S. Ct. 1166, 22 L. Ed. 2d 418 (1969). It also constituted a waiver of any defense that might have been raised at the trial of the charges. Cox v. State, 255 Ark. 204, 499 S.W. 2d 630. The state was not required to prove any element of the crime, since the plea of guilty was sustained. Here again, because of appellant’s youth, we sought to find anything to indicate that appellant’s attorney was not fully aware of this possible defense and of appellant’s mental capacity. We have been unsuccessful. It is significant that appellant was committed to the Arkansas State Hospital for psychiatric examination and observation prior to Holt’s employment. We have no reason to believe that the results of this evaluation were not available to counsel and given appropriate consideration by him.

Even with the more extended review accorded appellant because of his youth, we cannot say that his plea of guilty is vulnerable on collateral attack. No doubt the age of the offender has been, and will be, given consideration by the Department of Corrections.

The judgment is affirmed.

Holt, J., not participating.