text:
    Phillip Michael WHEAT v. STATE of Arkansas
    CR 87-195
    763 S.W.2d 79
    Supreme Court of Arkansas
    Opinion delivered January 23, 1989

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

The petitioner Phillip Michael Wheat was found guilty by a jury in a bifurcated trial of three counts of aggravated robbery and theft of property arising out of the robbery at gunpoint of a pharmacy. He was determined to be an habitual offender with eight prior felony convictions and was sentenced to two consecutive prison terms of forty years on counts I and II of aggravated robbery and concurrent terms of forty years on Count III of aggravated robbery and ten years for theft of property for a total term of eighty years imprisonment. He has now filed a petition for post-conviction relief pursuant to Criminal Procedure Rule 37 in which he alleges that he was not afforded effective assistance of counsel.

Petitioner first contends that his attorney should have argued at trial that there was only one course of conduct and thus only one aggravated robbery. He argues that it was a violation of the provisions against double jeopardy to convict him of a separate offense against each of the three persons present in the pharmacy.

The evidence adduced at trial showed that petitioner who was armed with a pistol entered the pharmacy and forced the two clerks to lie on the floor while the pharmacist gathered the money and narcotics into a bag. Only the property of the pharmacy was taken and there was no effort made to take any personal property belonging to the pharmacist and clerks. Although the focus of the crime of aggravated robbery is threat of physical harm to the victim, see Mitchell v. State, 281 Ark. 112, 661 S.W.2d 390 (1983), the question is whether under the statute it was proper to charge the petitioner with a separate count of aggravated robbery for each person he threatened in the course of the robbery even though he neither took nor manifested any intention of taking property individually from each of them. We conclude that the robbery was a single transaction, the intention of which was to commit theft of the pharmacy property and not three separate offenses. As we find merit to the argument that there was only one aggravated robbery under the facts of this case, the three convictions for aggravated robbery must merge, leaving petitioner to serve concurrent terms of forty years for aggravated robbery and ten years for theft of property.

The facts of this case are distinguishable from Smith v. State, 296 Ark. 451, 757 S.W.2d 554 (1988), where the appellant who had held seven employees of a trucking company at gunpoint while waiting for his paycheck to be prepared was found guilty of seven counts of terroristic threatening and seven counts of false imprisonment. We held in that case that separate offenses were committed against each of the seven persons since each was threatened and wrongfully imprisoned. There can be no doubt that if each of the two clerks had been forced to give over some property belonging to her, separate offenses of aggravated robbery would have been committed with respect to each clerk. See Britt v. State, 261 Ark. 488, 549 S.W.2d 84 (1977).

We note that other courts have reached the same results in similar situations where the defendant threatened the use of force against several persons to commit one act of theft. See State v. Faatea, 65 Haw. 156, 648 P.2d 197 (1982) (holding that the threatening of five persons to effect the theft of a hotel’s receipts constituted one robbery, notwithstanding a phrase in the statute that robbery is committed if, in the course of committing a theft, the person “threatens the imminent use of force against the person of anyone who is present”); State v. Potter, 285 N.C. 238, 204 S.E.2d 649 (1974) (holding that when the lives of all employees of a store were threatened and endangered by the use or threatened use of a firearm incident to the theft of their employer’s money or property, a single robbery is committed); People v. Nicks, 23 Ill. App. 3d 435, 319 N.E.2d 531 (1974) (holding that where a defendant robbed a store owner and two cashiers, separately, but all in one transaction, he could only be convicted of one count of armed robbery).

Petitioner’s remaining allegations of ineffective assistance of counsel do not merit post-conviction relief. To prevail on a claim of ineffective assistance of counsel, the petitioner must show first that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the sixth amendment. Second, the petitioner must show that the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious as to deprive the petitioner of a fair trial. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. A court must indulge in a strong presumption that counsel’s conducts falls within the wide range of reasonable professional assistance. The petitioner must show there is a reasonable probability that, but for counsel’s errors, the factfinder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. In making a determination on a claim of ineffectiveness, the totality of the evidence before the judge or jury must be considered. Strickland v. Washington, 466 U.S. 668 (1984).

Petitioner alleges that counsel relieved the state of its burden of proof by conceding in his opening statement that a robbery had been committed. The contention fails in light of the overwhelming evidence that the pharmacy was indeed robbed by someone. Counsel did not concede that the petitioner was the robber and attempted throughout trial to establish that the witnesses misidentified him.

Petitioner also argues that counsel should have submitted jury instructions so that the jury could have considered a lesser included offense. Again, the evidence was overwhelming that an aggravated robbery had occurred. Petitioner has not shown that there was any rational basis for an instruction on a lesser included offense. See Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984).

Finally, petitioner makes the statement that counsel failed to “investigate regarding [his] claims to prepare for trial.” As petitioner does not explain what specific action counsel should have taken to investigate and why the action was needed to prepare for trial, he has not demonstrated that the defense suffered any prejudice.

Petition granted in part and denied in part.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Eugene REYNOLDS, d/b/a Renny’s Bail Bonds v. Russell ROGERS, Circuit Judge, et al.
    88-193
    763 S.W.2d 660
    Supreme Court of Arkansas
    Opinion delivered January 30, 1989
    [Rehearing denied February 27, 1989.]

      Darrell F. Brown & Associates, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

This case is before us on a petition for writ of prohibition. The petitioner, Eugene Reynolds d/b/a Renny’s Bail Bonds, claims that the Arkansas County Circuit Court has erroneously ordered forfeiture of a bond written by Reynolds and directed that he be held in contempt and jailed for failure to pay the bond. Reynolds contends the only bond written by him in this matter was to the Saline County Circuit Court and he is under no obligation to the Arkansas County Circuit Court. We deny the writ because the record contains none of the documents necessary to our resolution of the issues presented.

We have often recited the rule that parties seeking relief in this court must bring up a record sufficient to show the trial court has erred. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988). Here, the record contains neither the final order forfeiting bond nor the order holding petitioner in contempt, both of which form the basis for Reynolds’ petition for writ of prohibition. While petitioner’s brief abstracts such orders, they are not in the record. Also, Reynolds has not favored us with a copy of the bond at issue.

This court will not reverse based upon unsubstantiated allegations contained in the abstract on appeal or in the pleadings. Based upon the record before us, we have no alternative but to deny the relief requested.

Writ denied.


text:
    Stanley Mark VIRDEN v. STATE of Arkansas
    CR 88-198
    764 S.W.2d 43
    Supreme Court of Arkansas
    Opinion delivered January 30, 1989

      Robert E. Irwin, for appellant.

      Steve Clark, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Stanley M. Virden was charged by information with two counts of indecent exposure. Ark. Code Ann. § 5-14-112 (1987). Virden was found guilty in municipal court and again on appeal in the Pope County Circuit Court. Before trial, Virden moved that the charges be dismissed because at each stage the prosecution had been brought in the name of the City of Russellville, contrary to A.R.Cr.P. Rule 1.5, which requires that all prosecutions for violations of the criminal laws of this state be brought in the name of the state. The motion was denied. We affirm.

On appeal, Virden does not challenge the jurisdiction of either the municipal court or that of the circuit court as concerns trial of this matter. Rather, he argues only that Rule 1.5 barred prosecution in the name of the City of Russellville.

While the proper procedure under Rule 1.5 would have been to designate the State of Arkansas as plaintiff, the error was not such that it stripped either the municipal court or the circuit court of jurisdiction to try the case. Urich v. State, 293 Ark. 246, 737 S.W.2d 155 (1987); Graham v. State, 25 Ark. App. 234, 756 S.W.2d 921 (1988). Under the circumstances, and because we find no prejudice, the error complained of does not constitute sufficient grounds for this court to reverse. Wheat v. State, 295 Ark. 178, 747 S.W.2d 112 (1988).

Affirmed.

Dudley, J., dissents.


author: Darrell Hickman, Justice.

text:
    ARKANSAS CONTRACTORS LICENSING BD. v. F & F CONCRETE PRODUCTS, INC.
    88-265
    763 S.W.2d 86
    Supreme Court of Arkansas
    Opinion delivered January 30, 1989

      Steve Clark, Att’y Gen., by: Rick D. Hogan, Asst. Att’y Gen., for appellant.

      Larry E. Graddy, for appellee.
   Darrell Hickman, Justice.

The only issue in this case is whether an administrative order, including findings of fact and conclusions of law, was properly served on a corporate defendant. The trial court held that service was inadequate, evidently holding service had to be the same as service of a summons on a corporation. Ark. Code Ann. § 16-58-124(a) (1987). We disagree. The order dismissing the complaint is remanded for further proceedings.

F & F Concrete Products, Inc., the appellee, was charged by the Contractors Licensing Board with building sidewalks in Conway without a contractor’s license. F & F was served with notice of the hearing by mail and that notice was received by H. Reno. The president of F & F, Mr. J. F. O’Kelley, was present at the hearing and present when the judgment was entered imposing a penalty of $2,500 on F & F.

The board’s order containing its findings of fact and conclusions of law was mailed to F & F and again Mr. H. Reno signed for it. When the order was ignored, F & F was written twice and asked to pay the penalty. After ten months, suit was filed in circuit court to collect the penalty. The board asked for summary judgment, but F & F claimed service was not proper since the president of F & F, its agent for service, had not received notice of the order. It was not contended no notice was received, only that it was not legal notice. The judge agreed and dismissed the board’s complaint.

Service of an order of an administrative agency can be by mail. Ark. Code Ann. § 17-22-103(e)(3) (1987); Ark. Code Ann. § 25-15-210(c) (1987). There is no requirement that such service comply with the law regarding service of summons. See People v. Penn. Central Co., 60 Misc.2d 919, 304 N.Y.S.2d 149 (1969). In this case notice was adequate.

Reversed and remanded.


text:
    Everett BILLINGS v. Jay GIPSON, d/b/a Gipson Crane Co. and Don E. Wages
    88-230
    763 S.W.2d 85
    Supreme Court of Arkansas
    Opinion delivered January 30, 1989

      William A. Storey, for appellant.

      Pryor, Barry, Smith & Karber, by: Thomas B. Pryor, for appellees.
   Darrell Hickman, Justice.

Everett Billings was injured when he fell from a ladder on a construction site. He was attempting to weld a joist which was being held in position by a crane. He sued the crane operator, Don Wages, and Jay Gipson, the owner of Gipson Crane Company, who are the appellees.

The jury, on a special verdict, found no negligence on the part of Billings or Wages. On appeal Billings makes two arguments, but they are meritless because of the jury’s finding. His first argument is that the Court erred in allowing evidence to be introduced that he drank on the job and had a habit of it. We need not reach the issue because the jury made a specific finding that Billings was not negligent, so the evidence was not prejudicial to his case.

In Ray v. Murphy, 284 Ark. 512, 683 S.W.2d 916 (1985), we found that even if an instruction is erroneously given, a jury verdict may render it harmless. In Ray the jury found the defendant not guilty of any negligence. We said:

The jury’s specific finding that Mrs. Murphy was not negligent conclusively exempts her from any possibility of liability to the plaintiff. If the trial court cannot rest its judgment upon such an explicit verdict, our procedure for instructing juries becomes futile.

See also Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983); Sanders v. Neuman Drilling Co., 273 Ark. 416, 619 S.W.2d 674 (1981); Bussell v. Missouri Pacific Railroad Co., 237 Ark. 812, 376 S.W.2d 545 (1964).

In this case the jury made specific findings that neither Billings nor the crane operator was negligent. So the evidence could not have prejudiced Billings, because the jury did not find him at fault to any degree.

The second question is did the trial judge err in instructing the jury on the borrowed servant doctrine. Since the jury found no negligence on the part of the crane operator, this issue is also meritless.

Affirmed.


text:
    James Odis OXFORD, Jr. v. Donald G. HAMILTON and Snap-On Tools Corp.
    88-209
    763 S.W.2d 83
    Supreme Court of Arkansas
    Opinion delivered January 30, 1989

      Odom, Elliot & Martin, by: Don R. Elliot, Jr.; Jeff Watson, for appellant.

      Roy & Lambert, for appellee Donald G. Hamilton.

      Bassett Law Firm, by: W. W. Bassett, Jr., and Angela M. Doss, for appellee Snap-On Tools Corp.
   Darrell Hickman, Justice.

This is an automobile accident case. The appellant was seriously injured when his car collided with a truck driven by the appellee, Donald Hamilton, who was a dealer for Snap-On Tools Corporation. The jury found the appellant 90% negligent and Hamilton 10% negligent. Snap-On Tools had been dismissed as a party on a motion for summary judgment.

Oxford appeals, raising four issues. Finding his arguments meritless, we affirm the jury’s verdict.

Immediately after the accident, Oxford was taken to the emergency room. A blood alcohol test was ordered by the attending physician, and it showed the alcohol content in Oxford’s blood to be .174. The first issue is whether .the test result should have been introduced into evidence at trial. Oxford claims it was a privileged communication between him and his doctor and therefore inadmissible under A.R.E. Rule 503.

Had this case arisen before the adoption of the Uniform Rules of Evidence, undoubtedly the test results would have been excluded. The physician/patient privilege was governed by Ark. Stat. Ann. § 28-607 (1947). Under that law, any information acquired from a patient while a doctor or nurse attended him and any information necessary to enable the doctor or the nurse to prescribe or do any act for the patient as a surgeon or trained nurse was protected.

Based on that statute, we held in Ragsdale v. State, 245 Ark. 296, 432 S.W.2d 11 (1968), that when a blood alcohol test was ordered by a physician, the result of the test was inadmissible. In Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975), a doctor’s testimony regarding the removal of a bullet from Freeman’s abdomen was held inadmissible. The Freeman opinion made it clear that the privilege protected information gained by means other than direct communication with the patient.

But these two cases are no longer the law. The enactment of the Uniform Rules of Evidence in 1976 significantly changed Arkansas law regarding physician/patient privilege, and we so held in Baker v. State, 276 Ark. 193, 637 S.W.2d 252 (1982). In that case, Baker sought treatment for gonorrhea and claimed the fact that he had been so treated was privileged.

We originally held that the fact Baker had been tested was privileged, but we changed our mind on rehearing. In a substituted opinion we recognized the law had been changed:

The legislature made a significant change by adopting a more sensible rule and on rehearing we recognize that change. The rule not only applies to criminal cases but civil as well.

While the former law protected “any information,” the new rule granted the privilege only to confidential communications. We held that “the real protection is aimed at preventing a doctor from repeating what a patient told him in confidence.” Justice Purtle recognized in his dissent that we do not interpret the rule to protect a physician’s “description of the injuries or ailments or disease.”

The court of appeals relied on our decision in Baker in Barker v. State, 21 Ark. App. 56, 728 S.W.2d 204 (1987). Barker had testified that he was attacked first by the man he killed. A physician was allowed to testify that he examined Barker and found no serious injuries or abrasions on him. More recently in Bussard v. State, 295 Ark. 72, 747 S.W.2d 71 (1988), we reaffirmed our interpretation of Rule 503. The appellant had been taken to the hospital for treatment of a gunshot wound. The bullet taken from his body was matched with a gun found at the scene of the crime. The appellant’s doctor was allowed to testify about removing the bullet.

We hold that the result of the blood test was not a confidential communication and was properly admitted into evidence. There are courts which would reach a different result. See State v. Pitchford, 10 Kan. App. 293, 697 P.2d 896 (1985); In re M.P.C., 165 N.J. Super. 131, 397 A.2d 1092 (1979). But we have made it clear how we interpret Rule 503 and leading authorities on evidence would agree with our interpretation. See E. Cleary, McCormick on Evidence § 105, at 258-60 (3d ed. 1984); 8 J. Wigmore, Evidence in Trials at Common Law § 2380a, at 828-32 (McNaughton Rev. 1961).

The second issue concerns the introduction of medical records which reflected Oxford’s history of heavy drinking and alcoholism. The objection was that the evidence was irrelevant or at least more prejudicial than probative.

This was a civil suit in which Oxford sued for damages for future pain and suffering, loss of future earnings, and loss of earning capacity. The jury was instructed that, in computing the appellant’s life expectancy, it could consider the mortality table “in connection with other evidence relating to the probable life expectancy of [the appellant], including evidence of his occupation, health habits, and other activities.” See AMI 2218. Two doctors testified that alcohol could shorten one’s life expectancy due to the damage it causes to various body organs.

The trial court has discretion in determining the relevance of evidence and in gauging its probative value against unfair prejudice. Simpson v. Hurt, 294 Ark. 41, 740 S.W.2d 618 (1987). Given the fact that evidence of the appellant’s habits was useful and even necessary to assist the jury in determining his life expectancy, we find no abuse of discretion. See Pearce v. Fletcher, 74 N.C. App. 543, 328 S.W.2d 889 (1985).

The appellant’s third argument is that the court should have granted a mistrial when defense counsel remarked in the opening statement that one of his witnesses had been threatened. A mistrial is a drastic remedy only to be granted when no other remedy exists, and the trial court has wide discretion dealing with a motion for a mistrial. Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). Only one mention was made of the alleged threat, and the trial judge gave a cautionary instruction. The trial judge was in the best position to determine the effect of the remark on the jury.

Finally, the appellant claims it was error to grant summary judgment in favor of Snap-On Tools. The appellant alleged that the appellee Hamilton was acting as an agent, servant and employee of Snap-On when the accident occurred. Since the jury determined Hamilton was not liable in the accident, there was no liability to impute to Snap-On, even if it had remained in the lawsuit. Since we are affirming the jury’s verdict, we do not address this issue.

Affirmed.

       The appellant’s reliance on Mosley v. State, 22 Ark. App. 29, 732 S.W.2d 861 (1987), is misplaced. That case did not involve thephysician/patient privilege. It involved the Hospital Records Act, Ark. Code Ann. § 16-46-301 to 308 (1987).

       It is also alleged there was error in permitting evidence of Oxford’s purchase of alcoholic beverages on other occasions to be introduced. The record does not reflect any mention of this evidence at trial.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    The TRAVELERS INDEMNITY COMPANY v. OLIVE’S SPORTING GOODS, INC., et al.
    88-165
    764 S.W.2d 596
    Supreme Court of Arkansas
    Opinion delivered January 30, 1989

      McMillan, Turner & McCorkle, for appellant.

      The McMath Law Firm, P.A., for appellees Warwick and Worthen Bank and Trust Company.

      Friday, Eldredge & Clark, by: William H. Sutton, Frederick S. Ursery, and James C. Baker, Jr., for appellees Olive’s Sporting Goods, Inc., Tommie R. Olive individually and as administratrix of the estate of Robert J. Olive, deceased.
   John I. Purtle, Justice.

The Travelers Indemnity Company appeals from a declaratory judgment in favor of its insured, Olive’s Sporting Goods, Inc. The circuit court adjudged gunshot injuries to several persons to be separate occurrences within the meaning of the policy issued by Travelers to Olive’s. For reversal, the appellant argues that: (1) the court erred in finding there was more than one occurrence involved in the litigation; (2) the court erred in holding the contract of insurance ambiguous; and (3) the court erred in finding that the “products hazard” and “completed operations hazard” limits of the policy were not applicable. We agree with the appellant that there was only one “occurrence” with respect to the policy of insurance and that the aggregate coverage stated is the total sum for which Travelers may be liable under the circumstances of this case.

The trial court held that each injury inflicted by a gunman amounted to a separate occurrence under the insurance policy with Olive’s. The Court of Appeals held that there was no justiciable controversy and dismissed the action. Travelers Indem. Co. v. Olive’s Sporting Goods, Inc., 25 Ark. App. 81, 753 S.W.2d 284 (1988). We granted review from the opinion of the Court of Appeals.

The appellee sold a Colt .45 pistol and a 12-gauge Smith and Wesson shotgun to a Wayne Crossley. These weapons were allegedly subsequently used by Crossley in a bizarre incident in which he shot a policeman, killed and wounded several other persons, and then committed suicide.

Several lawsuits have been filed against Olive’s on behalf of the victims alleging negligence in the sale of the guns. In a separate action Olive’s sued Travelers in a declaratory judgment proceeding to determine the amount of coverage under the terms of this policy of insurance.

Before reaching the appellant’s arguments for reversal, we will discuss the specifics of a declaratory judgment action. The propriety of this action was argued before this court and was the basis of the opinion by the Court of Appeals. Our declaratory judgments statutes are found in Arkansas Code Annotated title 16, chapter 111, §§ 101-111 (1987). The purpose of the declaratory judgments law is to “settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” The law further provides that it is to be liberally construed and administered. Section 3 of the act gives the courts of record within their respective jurisdictions power to declare the rights, status, and other legal relations whether or not further relief is or could be claimed. The right to obtain a declaratory judgment is contained in § 104 and reads as follows:

Any person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise may have determined any question of construction, or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status, or other legal relations thereunder.

Olive’s sought a determination of its rights under the contract of insurance with The Travelers Indemnity Company. The questions to be determined in this appeal are whether Olive’s had coverage for each of the multiple injuries and the amount of the aggregate coverage for liability, regardless of the number of occurrences.

The declaratory judgment statute was first enacted in 1953, Act 274, and amended by Act 35 of 1957. One of the early cases interpreting this statute is USF & G Co. v. Downs, 230 Ark. 77, 320 S.W.2d 765 (1959). That case was factually similar to the present case with the exception that there were two insurance companies involved. Downs involved an automobile insurance policy. An injured party filed suit against Downs alleging that the driver of a truck that caused an automobile accident was an employee of Downs. Subsequently a dispute arose between Maryland Casualty Company and United States Fidelity and Guaranty Company as to which company’s policy afforded primary coverage on the truck involved in the accident. The insurance companies then filed a declaratory judgment action in order to determine the obligations of the two insurance companies under their liability policies, and to determine which company was obligated to defend the suit. Although Downs was reversed on appeal and cross-appeal, it was held to be appropriate for a declaratory judgment proceeding by both the trial court and this court.

We again considered the matter of declaratory judgments with respect to liability insurance policies in Equity Mutual Insurance Company v. Southern Ice Company, 232 Ark. 41, 334 S.W.2d 688 (1960). This proceeding was brought to determine the rights of an insured under the terms of his insurance policy. That opinion contained language as follows:

There are many cases in which declaratory judgment proceedings (under the Uniform Law) have been invoked by insurers in similar or analogous situations. [Citations omitted.] The Equity Company had a right to use the declaratory judgment proceedings in this case to have determined its duty to pay ¡or defend, just as was done in the cases previously cited. The Equity Company alleged, inter alia: (1) that the status of the Arnold boy made him an employee of The Borden Company; and (2) that the automobile insurance policy here involved specifically excluded employees. The factual issues required determination; and Equity Company was entitled to have the facts determined in the declaratory judgment proceedings. [Emphasis added.]

A more recent case on the subject is that of Priddy v. Mayer Aviation, Inc., 260 Ark. 3, 537 S.W.2d 370 (1976), another insurance case involving liability coverage in an errors and omissions policy. Tort actions were filed against the policy holder. Again a declaratory judgment action. We affirmed the judgment of the trial court and in doing so quoted from Anderson on Declaratory Judgments, Second Ed., § 187:

Since [the] purpose of the declaratory relief is to liquidate uncertainties and interpretations which might result in future litigation it may be maintained when these purposes may be subserved. The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained, may be summarized as follows: (1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination.

In the present case we believe the facts clearly show that there exists a justiciable controversy in which the policy holder is vitally concerned with the number of “occurrences” and amount of his aggregate coverage. The insuror’s and insured’s interests are adverse, to some extent, under the present circumstances. Certainly Olive’s has a legal interest in the controversy in as much as its own exposure to liability will be increased many times if there is a “single occurrence” limitation applied to the facts of this case. The matter is obviously ripe for judicial determination since several tort actions have already been filed against Olive’s, and it seeks to determine the extent of its exposure beyond the limits of the policy. Therefore, the declaratory judgment action was proper. We do not consider the issue of Olive’s negligence in making this sale. Neither do we consider the merits of the claims of any of the claimants.

The first argument for reversal is that the trial court erred in finding that there were multiple occurrences rather than a single occurrence. Obviously from the standpoint of Crossley’s victims there was more than one occurrence; viewed from Olive’s perspective there is only one occurrence — the sale of the weapons to Crossley.

In considering the different clauses of a contract, we must read the whole document together and determine whether all parts are in harmony. If possible we give effect to the overall meaning of the contract. It is error to give effect to one clause over another on the same subject if the two clauses are reconcilable. Continential Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W.2d 652 (1971).

The contract between the parties attempted to define an “occurrence.” The policy in part states:

If a single limit of liability is stated . . .the limit stated in the declarations as applicable to “each occurrence” is the total limit of liability ... for all damages . . . arising out of bodily injury. . . sustained by one or more persons. . . as a result of any one occurrence. Subject to the above provisions respecting each occurrence, the total liability of the Travelers for all damages because of bodily injury. . . described in any of the subparagraphs below shall not exceed the limit of liability stated in the declarations as “aggregate.”

The policy also states:

“Occurrence” means an accident including continuance [of] or repeated exposure to conditions which result in bodily injury neither expected nor intended from the standpoint of the insured .....

The policy declares that regardless of the number of persons injured or the number of claims made or suits brought on account of bodily injury, The Travelers’ liability is limited as stated in the single limit of liability quoted above.

Although we have found no decision by this court construing such an “occurrence” provision in an insurance policy, there are decisions from other jurisdictions reaching contrasting results. We are persuaded that those jurisdictions adopting the “cause” theory (rather than the “effect” theory) hold the better view. To decide that each of the injuries required separate coverage under the policy would in effect put a no-limit policy into effect. We find the case of St. Paul Mercury Indemnity Company v. Rutland, 255 F.2d 689 (5th Cir. 1955), persuasive. In that case fourteen different parties claimed entitlement to the proceeds of a single policy as a result of a derailment of a train. The court held the single limit liability stated in the policy was the total limit of recovery. The same result was reached in Champion International Corporation v. Continental Company, 546 F.2d 502 (2d Cir. 1976), where 1400 sales of defective material were made. The court held that the multiple sales were continuous and repeated elements of the same occurrence. From the facts presented in the present case, and the terms of the policy, we hold that there was only one occurrence within the meaning of the insurance policy issued to Olive’s.

The second argument by appellant is that the court erred in finding the contract ambiguous. When the contract of insurance is read in its entirety, it is clear that the appellant agreed to be bound for a total of $300,000 under the conditions covered by the policy. The terms of the policy make it clear that the $300,000 limit is applicable either to one or several causes for which the insured is liable. See Continental Casualty Company v. Davidson, supra. We do not find the policy to be ambiguous.

The final argument for reversal is that the trial court erred in finding that the “products hazard” and “completed operations hazard” sections of the contract had no application. Although the terms used in the contract may not exactly fit the stereotypical conception of the “occurrences” resulting in this action, the words cannot be construed otherwise. The “products hazard” section, according to the policy, covers bodily injury arising out of the insured’s products if the injury occurs away from the premises. “Completed operations hazard” includes bodily injury arising out of operations if the injury occurs after the operations have been completed and away from the insured’s premises. Obviously if the insured is responsible for injuries under these circumstances, it is covered by one of these provisions of the policy. It is also clear that The Travelers intended to insure Olive’s for liability under some circumstances. It makes no difference whether the intent was to cover them for claims resulting from “products hazards” and “completed operations hazards,” or operations on the premises such as the sale of a product. The aggregate limit is stated both on the declaration page and in the products hazards and completed operations hazards clauses of the policy. The declaration sheet is partially reproduced below:

To hold with the trial court in this case would cause the appellant to be responsible for up to $300,000 on every claim for which Olive’s may eventually be found liable. Each eligible heir of those killed could have a separate claim with a limit of $300,000. The limits of the policy cannot be calculated under these circumstances. Even if we were to decide that the “products hazards” provision does not apply, there is still the declaration sheet at the beginning of the policy where the total limit of liability under the policy is stated as $300,000. Therefore the aggregate limit in the policy is the amount stated on the declaration sheet — $300,000.

The case is reversed and remanded with directions to the trial court to enter declaratory judgment in accordance with the provisions of this opinion.

Hickman and Newbern, JJ., concur.

Darrell Hickman, Justice,

concurring. The court of appeals decided this case on a ground not raised by either party, i.e., that declaratory judgment was premature. Judge Corbin’s concurring opinion concerned nonjoinder of parties, another matter not addressed in the briefs. Since Ark. Sup. Ct. R. 29(6) did not allow us to accept supplemental briefs on review, we were somewhat handicapped, as the parties were, in dealing with these issues. That rule was changed by a Per Curiam dated January 17, 1989.

I agree with the result in this case and write only to address the court of appeals’ concurring opinion. Judge Corbin indicated that the failure to join those who had sustained injuries but had not yet filed suit against the insured was fatal to the action.

The controversy in this case is between the insurer and the insured over the amount of coverage. Any effect a declaratory judgment on that subject would have on these potential plaintiffs is so indirect that they should not be considered necessary parties in my opinion. There is not a consensus of opinion on whether those who have actually filed suit are necessary parties. See Annotation, Declaratory Judgment Parties,! I A.L.R.2d § 12 (1960); 26 C.J.S. Declaratory Judgments § 124 (1956).

Newbern, J., joins in the concurrence.


author: Steele Hays, Justice.

text:
    CITY OF LITTLE ROCK v. James A. RAGAN
    88-125
    763 S.W.2d 87
    Supreme Court of Arkansas
    Opinion delivered January 30, 1989

      Mark Stodola, City Attorney, by: Thomas C. Carpenter, Asst. City Att’y, for appellant.

      Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, for appellee.
   Steele Hays, Justice.

On February 2, 1982, the Pulaski County voters approved a countywide sales tax. Subsequently, the Pulaski County Quorum Court passed Ordinance 82-OR-12 imposing both a sales and use tax on residents. Pulaski County began collecting this tax on April 1, 1982, and pursuant to state law distributed the tax collections, per capita, to the several municipalities in the county.

In Ragan v. Venhaus, 289 Ark. 266, 711 S.W.2d 467 (1986), we held that the use tax portion of the county ordinance constituted an illegal exaction, remanding the case to chancery court to determine a remedy. After a number of hearings the chancellor issued a proposed judgment, to which the City of Jacksonville objected based in part on the allowance of interest on the judgment against the municipal defendants.

The chancellor issued a judgment on July 23, 1987, determining the specific amounts of money owed to James Ragan and all similarly situated taxpayers by Pulaski County, and by the cities of Little Rock, North Little Rock, Jacksonville, and Sherwood. In this judgment no interest was allocated against Pulaski County because of Ark. Code Ann. § 16-65-114(b) (1987), which prohibits recovery of interest on any county indebtedness. Since cities are not excepted under this statute, the cities of Little Rock, Jacksonville, North Little Rock and Sherwood were assessed both pre- and postjudgment interest.

No appeal was taken from the judgment, but on October 20, 1987, the City of Little Rock filed a motion to amend the judgment under ARCP Rule 60(b) in order “to prevent the miscarriage of justice.” On March 14, 1988, the chancellor denied the motion, and from this ruling the City of Little Rock has appealed, citing ARCP Rule 60(b) in support of its contention that the alleged error in the lower court constitutes a miscarriage of justice as the term is used in Rule 60(b):

To correct any error or mistake or to prevent the miscarriage of justice, a decree or order of a circuit, chancery or probate court may be modified or set aside on motion of the court or any party, with or without notice to any party, within ninety days of its having been filed with the clerk. [Our emphasis.]

We do not reach the merits of the argument because we have held frequently that the trial court loses the power to act under Rule 60(b) after ninety days from the filing of the judgment, decree or order with the clerk. Diebold and First National Bank of Wynne v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987); Mullen v. Couch, 288 Ark. 231, 703 S.W.2d 866 (1986); Burgess v. Burgess, 286 Ark. 497, 696 S.W.2d 312 (1985); McGibbony v. McGibbony, 12 Ark. App. 141, 671 S.W.2d 212 (1984); Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983); Southern Farm Bur. Cas. Ins. Co. v. Robinson, 238 Ark. 159, 379 S.W.2d 8 (1964); Fitzjarrald v. Fitzjarrald, 233 Ark. 328, 344 S.W.2d 584 (1961); King & Houston v. State Bank, 9 Ark. 185 (1848). Here, while appellant’s motion was filed on the 89th day and thus was timely, any power by the court to act on the motion lapsed with the expiration of the ninety days.

In Cigna Ins. Co v. Brisson, 294 Ark. 504, 746 S.W.2d 558 [Supplemental Opinion on Rehearing (1988)], confronted with the exact situation now presented, we wrote:

When the circuit court failed to modify or vacate its June 4 order within ninety days, it lost all power to act under ARCP Rule 60(b). Hayden v. Hayden, 291 Ark. App. 582, 726 S.W.2d 287 (1987); Board of Equalization, Washington County v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W.2d 211 (1972).
In St. Louis and N.A. Ry. Co. v. Bratton, 93 Ark. 234, 124 S.W. 752 (1920), we pointed out there is no authority after the term of court has expired for a trial court to revise a judgment. The term of court was later changed to ninety days and is now incorporated in ARCP Rule 60(b).

The order appealed from is

AFFIRMED.


author:
Steele Hays, Justice.
      John I. Purtle, Justice,

text:
    Rosemary McELROY and David McElroy v. AMERICAN MEDICAL INT’L, INC.
    88-154
    763 S.W.2d 89
    Supreme Court of Arkansas
    Opinion delivered January 30, 1989

      George H. Bailey, for appellant.

      Friday, Eldredge & Clark, by Calvin J. Hall, for appellee.
   Steele Hays, Justice.

The question is whether appellants substantially complied with Arkansas Rules of Appellate Procedure Rule 3(e). Concluding that substantial compliance was lacking, we dismiss the appeal.

This medical malpractice case resulted in a verdict for St. Mary’s Hospital and Dr. Finley Turner (defendants-appellees). After a motion for a new trial was denied, Rosemary and David McElroy (plaintiffs-appellants) filed a timely notice of appeal. Appellants designated the entire record and, as required by ARAP Rule 3(e), declared that the transcript had been ordered from the court reporter. Subsequently the appellees moved to dismiss the appeal, and after a hearing, the trial court granted the motion. Appellants have appealed from that order.

We begin by pointing out that we have held in several recent cases that only appellate courts have authority to dismiss an appeal. In Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), we said:

We are troubled by the apparent misunderstanding to the effect that trial judges may dismiss appeals. While we give the trial court the authority to extend the time for docketing the record with us or with the court of appeals, our rules of appellate procedure do not confer on the trial court the power to dismiss appeals. Those rules, as we said of the comparable statutes in Davis v. Ralston Purina Co., supra, and again about the rules in Brady v. Alken, Inc., supra, are for this court to apply. Nine times out of ten we will be able to decide the question of timeliness of a notice of appeal, or prejudicial failure to comply with other requirements, from the record before us. If that is not the case, we may remand the case so that a record on the matter at issue may be made in the trial court, but we do not ask the trial courts to determine who may and who may not appeal the trial courts’ decisions. Although the issue of appealability was thus not properly before the chancellor and probate judge, we reach the same conclusion he did. Treating Johnson’s appeal from that order as a motion to dismiss Carpenter’s appeal, we deny the motion.

Not long afterwards that principle was repeated in Venhaus v. Pulaski County Quorum Court, 291 Ark. 558, 726 S.W.2d 668 (1987):

In Estes v. Masner, 244 Ark. 797, 427 S.W.2d 161 (1968), this court stated that “[i]t is true that once an appeal is taken to, and docketed in, this court, the trial court is deprived of jurisdiction to further act in this matter.” Again in Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981), this court held:
We first consider the contention that the trial court erred in dismissing the appeal. There is no question that the trial court still had jurisdiction of the case when the order of dismissal was entered because the record had not yet been lodged in the appellate court.
Brady and Estes indicate that a trial court retains jurisdiction as long as the record has not been lodged in the appellate court. However, this court recently announced an absolute rule prohibiting a trial court from ever dismissing an appeal. In Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), we explained that “our rules of appellate procedure do not confer on the trial court the power to dismiss appeals. Those rules . . . are for this court to apply.” (emphasis in original). Accordingly, the chancellor erred in dismissing Venhaus’s appeal.

Thus the rule is firmly settled that a motion to dismiss an appeal is not proper in the trial court. Nevertheless, we can treat such a motion as having been made in this court. Johnson v. Carpenter, supra.

This record establishes the following: Notice of appeal was dated March 2, and filed March 7,1988. As required by Rule 3(e) the notice designated the entire record “and all proceedings, exhibits, evidence and documents introduced into evidence” and contained the requisite statement that the transcript had been ordered from the court reporter. It is undisputed that no order for the transcript had been made when the notice of appeal was filed.

On March 30, appellants contacted the court reporter by telephone to state that an amended designation of the record would be filed in the future but no order for the transcript was given. On April 11, appellants wrote to the court reporter designating lesser portions of the transcript. This letter, which was received by the court reporter on April 18, constitutes the initial order for the transcript. On May 10, points to be relied on were mailed to appellees and on May 16, the points to be relied on were filed. On May 31, a motion for an extension of time was filed and granted to July 1. Appellees moved to dismiss the appeal on June 13.

Where the notice of appeal fails to state that the transcript has been ordered, but it has in fact been ordered, we have not been disposed to dismiss an appeal for what may be seen as an inadvertent omission of the language required under Rule 3(e). Phillips v. LaValle, 293 Ark. 364, 737 S.W.2d 652 (1987). But where the facts show that the appellant has failed to order the transcript in a timely manner we have held that substantial compliance is lacking. Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1983); Appleton-Rice v. Crumpler, 279 Ark. 450, 655 S.W.2d 1 (1983); Phillips v. Marianna Ford Tractor, Inc., 290 Ark. 75, 716 S.W.2d 763 (1986).

Here, we are confronted with a situation not previously seen — the appellants affirmatively, but falsely, state that the transcript has been ordered when in fact it has not. Nor was such misstatement promptly corrected by a timely order for the transcript. Indeed, it was another five weeks before the court reporter was actually notified that a transcript was ordered. This not only operates to delay the appeal process, which Rule 3(e) was intended to prevent, but smacks of a deception on the court and opposing counsel.

Appellants rely most heavily on Johnson v. Carpenter, supra. But there there was a misunderstanding between counsel for appellants and the court reporter, the implication being that there was a timely order for the transcript. Here, there was no misunderstanding, nor any potential miscommunication. The court reporter’s testimony that April 18 was when the transcript was actually ordered by appellants was not refuted.

Appellees charge the appellants with an on-going pattern of delay: that appellants’ motion for a new trial contained a certificate of service upon appellees as of February 9,1988, yet appellants delayed serving the motion upon appellees until February 22; that when appellants wrote the trial judge on February 19, concerning the motion for a new trial they requested that a hearing be delayed for some ninety days; that when appellants filed an amended designation of record the designation was equivocal, purporting to reserve the right to designate additional testimony at some future time; that not until May 16, some two and one-half months after the notice of appeal, did the appellants file the points to be relied upon, which, under Rule 3(g) should accompany the notice of appeal where less than the entire record is designated. In short, we have no difficulty determining that appellants’ actions were calculated to cause a material delay in the appeal process and constituted a failure to substantially comply with Rule 3(e).

Appeal dismissed.

Dudley, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I think it would be helpful for an understanding of this dissent to set out the dates of the various notices and motions in chronological order.

March 7, 1988. Timely notice of appeal was filed.
March 30, 1988. Attorney for appellants contacted court reporter about amending the designation of record.
April 11, 1988. Attorney wrote reporter designating less than the entire record.
April 18, 1988. The court reporter received the letter of April 11, 1988.
May 10, 1988. Points to be relied upon were mailed to appellees.
May 31, 1988. Motion for extension of time to complete the record filed.
June 13,1988. Motion to dismiss appeal filed in trial court.
June 28, 1988. The trial court dismissed appellants’ appeal.

From the foregoing it can be seen that within thirty days after notice of appeal and designation of the entire record, the appellant contacted the court reporter about amending the designation of record to include less than the entire transcript. The court reporter acknowledged the telephone contact and also that she received a letter confirming the redesignation six days later. The amended designation of record was filed on April 15, 1988, and an appendix thereto was filed on May 16, 1988. The appellants filed the designation of points on May 16,1988, and a motion for an extension of time within which to lodge the record on May 31, 1988. On June 13, 1988, shortly after the original ninety days had expired, the appellees filed a motion to dismiss the appeal. The proper procedure at this point would have been to file a response to the motion for extension of time, objecting to an extension. Incidentally, the motion to dismiss the appeal was filed in the wrong court. Nevertheless it has been treated as if it has been properly filed.

The laws and our decisions are basically designed to search for truth and justice. It is not always possible to obtain either of these goals. Although we come close at times, this is not one of them.

We have on numerous occasions in recent years held that trial courts are without authority to dismiss an appeal. The majority rely on Rule 3(e) of the Rules of Appellate Procedure and Phillips v. LaValle, 293 Ark. 364, 737 S.W.2d 652 (1987), to support their decision. In Phillips the notice of appeal did not state that the record or transcript had been ordered. Two weeks later the transcript was actually ordered. The reporter informed the appellant that work on the transcript could not be started until March, 1986, about two months after the original notice of appeal. The trial court refused to dismiss the appeal. We also refused to dismiss the appeal, stating:

Clearly, Phillips’s counsel acted properly in ordering the transcript and his failure to mention he had ordered it in his notice of appeal in no way delayed this proceeding or in any way frustrated the purpose of Rule 3(e). Our decision in Wise v. Barron, 280 Ark. 202, 655 S.W.2d 446 (1983) controls the situation posed here and dictates the court’s decision, denying La Valle’s motion to dismiss.

The court relies heavily on Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), wherein we held that trial judges do not have the authority to dismiss an appeal. However, we said, as an afterthought, that this court could treat an appeal from such a motion as if the motion to dismiss the appeal had been filed in this court. However, we denied the motion in Johnson.

The majority also relies on Venhaus v. Pulaski County Quorum Court, 291 Ark. 558, 726 S.W.2d 668 (1987). The quote from Venhaus is really on point. The Venhaus opinion stated:

However, this court recently announced an absolute rule prohibiting a trial court from ever dismissing an appeal. In Johnson v. Carpenter, 290 Ark. 255, 718 S.W.2d 434 (1986), we explained that “our rules of appellate procedure do not confer on the trial courts the power to dismiss appeals. Those rules . . . are for this court to apply.”

We held that the chancellor erred in dismissing Venhaus’ appeal. The clear holding in Venhaus was that trial courts cannot dismiss an appeal. The dicta in Johnson was not observed in the Venhaus opinion.

The majority opinion also relies on Hudson v. Hudson, 277 Ark. 183, 641 S.W.2d 1 (1982). In Hudson the notice of appeal did not state that the transcript had been ordered. The notice of appeal was filed on September 24, 1981, and it was not until December 7,1981, after a motion to dismiss had been filed by the appellee, that appellant ordered the transcript from the reporter. The Hudson opinion clearly stated that there had not been substantial compliance with Rule 3(e). In disposing of the case this court stated:

The provision for ordering the transcript under Rule 3(e) has been construed to be satisfied by substantial compliance, provided the appellee has not been prejudiced or misled by the failure to strictly comply with the rule. Brady v. Alken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981); Davis v. Ralston Purina Company, 248 Ark. 14, 449 S.W.2d 709 (1970). However, we stated in Brady, supra, that:
Our view is that if for any reason counsel are not able to state in the notice of appeal that the transcript or portions of it have been ordered the proper practice would be for the appropriate explanation to be included in the notice of appeal.

277 Ark. 184.

In Brady v. Alken, supra, we stated:

Under prior case law, the question of whether an appeal should be dismissed for want of strict compliance with the statutes and rules turned on whether the appellee was prejudiced by the irregularity. Davis v. Ralston Purina Co., 248 Ark. 14, 449 S.W.2d 709 (1970); Pine Bluff National Bank v. Parker, 253 Ark. 966, 490 S.W.2d 457 (1973); Harbor v. Campbell, 235 Ark. 492, 360 S.W.2d 758 (1962). Since the purpose of the Rules of Appellate Procedure was basically to revise and condense prior statutory law, and the Rules were adopted for the purpose of expediting appeals, it appears that prior cases would be persuasive in this matter. In Davis v. Ralston Purina Co. we stated:
. . . The filing of a notice of appeal is jurisdictional, but irregularities in the other procedural steps . . . are merely grounds for such action as this court deems appropriate.
In the present case we do not find that the irregularity in any manner prejudiced or misled the appellee.

Without unduly prolonging this dissent I wish to point out that there is no evidence of prejudice to the appellees or any party in this case. There is no question but that the appellants substantially complied with our rules. Therefore, the appeal should not be dismissed.


author: David Newbern, Justice.

text:
    Kenneth R. MATTHEWS v. Louis Arthur DODRILL
    88-299
    763 S.W.2d 93
    Supreme Court of Arkansas
    Opinion delivered January 30, 1989
    [Rehearing denied February 27, 1989.]

      Appellant, pro se.
    No brief filed.
   David Newbern, Justice.

This appeal must be dismissed for failure of the appellant to comply with the Arkansas Rules of Appellate Procedure.

The appellant, Kenneth R. Matthews, sued the appellee, Louis Arthur Dodrill, alleging tort and contract causes of action. The court directed a verdict in favor of Dodrill on Matthews’ claim that Dodrill owed him wages. The other claims were tried to a jury which returned a verdict for Dodrill.

Matthews filed a notice of appeal which did not comply with Ark. R. App. P. 3(e). It did not designate the contents of the record on appeal or that the whole record would constitute the record on appeal, and it did not contain a statement that the transcript, or specific portions thereof had been ordered by the appellant.

Dodrill has not filed a brief in response to that filed by Matthews but has moved to dismiss the appeal on the ground that the failure to designate the record on appeal has deprived him of the opportunity to designate portions of the record which may be missing and which would be necessary in support of his position. He is correct in pointing out that it is the responsibility of the appellant, as provided in Rule 3(e), to designate the record.

The appellant stated four points of appeal in his notice of appeal. Only two of them are specific enough to be understandable or to serve as notice of claimed errors. His brief lists six points of appeal, some of which clearly are not included in the points stated in the notice of appeal.

Under these circumstances, we must agree that the notice of appeal was so defective that Dodrill could not be expected to know whether the entire record would be before the court and, if not, which portions he could expect. All things considered, the notice of appeal was inadequate and prejudicial to Dodrill. See Jones v. Adcock, 233 Ark. 247, 343 S.W.2d 779 (1961); Arkansas Farmers Assn. v. Towns, 232 Ark. 997, 342 S.W.2d 83 (1961).

Appeal dismissed.


author: Tom Glaze, Justice.

text:
    Mel BRAGG v. MAYES, SUDDERTH & ETHEREDGE, INC. and Lashlee Steel Company
    88-152
    764 S.W.2d 44
    Supreme Court of Arkansas
    Opinion delivered January 30, 1989

      Gibson, Ellis, Parker & Tedder, for appellant.

      Bridges, Young, Matthews, Holmes & Drake, by: Terry F. Wynne, for appellee.
   Tom Glaze, Justice.

This case is a second appeal. In a prior appeal, Hill Construction Co. v. Bragg, 291 Ark. 382, 725 S.W.2d 538 (1987), we found error in the failure to give certain jury instructions, and remanded this cause for a new trial. The earlier suit was brought by the appellant, Mel Bragg, an iron-worker, concerning injuries he sustained when a steel column fell on him during the construction of a building. That action was against the general contractor, Hill Construction Co., and the architect and engineers, Mayes, Sudderth & Etheredge, Inc. (Mayes), who prepared the plans for the building.

After the reversal of the first appeal, Lashlee Steel Company (Lashlee) was joined as a tortfeasor who allegedly bore some liability to Bragg for his injuries. During the course of the second trial, Bragg and Hill Construction Co. settled their differences, whereby Bragg received the sum of $145,000.00; Hill Construction Co. was dismissed from the suit. When the trial proceeded, Bragg and the remaining defendants, Mayes and Lashlee, all made references concerning the settlement terms reached between Bragg and Hill Construction Co., and although those remarks were made before the jury, no one interposed an objection. After the parties presented their evidence and rested, the trial court submitted the case to the jury on special interrogatories, and the jury returned its verdict in favor of Mayes and Lashlee. Accordingly, the trial court dismissed Bragg’s suit with prejudice, and Bragg brings this second appeal. We affirm.

Bragg’s argument for reversal involves the settlement between Bragg and Hill Construction Co. and the trial court’s allowing the amount of that settlement to be made a part of one of the interrogatories given the jury regarding the damages Bragg sought from Mayes and Lashlee. In this respect, the trial court read the following AMI 201 instruction with five interrogatories to the jury:

AMI 201
After I have completed my instructions to you on the law in this case, you will be given a number of written questions called interrogatories. These interrogatories present the issues of fact which you must decide. In order that you may be fully acquainted with the issues of fact which are now being submitted in this case for your determination, I will now read these interrogatories, some or all of which you may be called upon to answer. You should keep this in mind as I explain the law that applies to this case.
INTERROGATORY NO. 1: Do you find from a preponderance of the evidence that Mayes, Sudderth & Etheredge, Inc. was guilty of negligence which was a proximate cause of the occurrence?
Answer it “Yes” or “No.”
INTERROGATORY NO. 2: Do you find from a preponderance of the evidence that Lashlee Steel was guilty of negligence which was a proximate cause of the occurrence?
The answer will be “Yes” or “No.”
INTERROGATORY NO. 3: Do you find from a preponderance of the evidence that Mel Bragg was guilty of negligence which was a proximate cause of his damages?
Answer “Yes” or “No.”
INTERROGATORY NO. 4: If you have answered at least two of the foregoing interrogatories “yes,” then answer the following interrogatory.
Using 100% to represent the total responsibility for the occurrence of any injuries or damages resulting from it, apportion the responsibility between the parties whom you have found to be responsible.
Answer: Lashlee Steel, with a percentage, if any. Mayes, Sudderth & Etheredge, Inc., with a percentage, if any. And Mel Bragg with a percentage, if any.
INTERROGATORY NO. 5: State the amount of damages which you find from a preponderance of the evidence were sustained by Mel Bragg as a result of the accident, after first having deducted the $145,000 paid by Hill Construction Company.
Answer: $__

Bragg’s objection to the foregoing instruction and interrogatories went only to the form of Interrogatory No. 5. He argued that Interrogatory No. 5, as written, was a comment on the evidence, since it informed the jury to deduct the $145,000 paid Bragg by Hill Construction Co. from the amount of damages Bragg sustained as a result of the negligence of Mayes and Lashlee. Bragg further argued that the comment made in Interrogatory No. 5 tainted the other four interrogatories, because it permitted jurors to force the outcome by answering all of the interrogatories in a certain way since they knew what the outcome would be.

In keeping Bragg’s contention in perspective, we should point out, as does Mayes on appeal, that while AMI 201 and all the foregoing interrogatories were read to the jury, only Interrogatories No. 1 through 3 were actually submitted to the jury. Because the jury answered No. 1 and 2 in the negative, relieving Mayes and Lashlee from fault, it was then unnecessary that Interrogatory No. 5 be answered, so it was never submitted.

When considering the manner in which this case was tried and submitted to the jury, we have difficulty in accepting Bragg’s suggestion that he suffered any prejudicial error. The trial court clearly instructed the jurors that they may be called upon to answer some or all of the interrogatories read to them. They first considered those interrogatories concerning Mayes’s and Lashlee’s liability, and concluded neither was negligent. As a consequence, it was unnecessary for the jury to apportion the responsibility of Mayes and Lashlee, under Interrogatory No. 4, or to consider the issue of damages or the settlement language set out in Interrogatory No. 5, Cf. Arhart v. Micro Switch Mfg. Co., 798 F.2d 291 (8th Cir. 1986). As a result, those interrogatories were not submitted to the jury. Although Bragg argues the trial court’s reading of Interrogatory No. 5 tainted those interrogatories submitted to the jury, that argument rings hollow in view of how all parties presented their respective cases and arguments throughout the trial. As was found by the trial court, and conceded by the parties, counsel for Bragg and for Mayes or Lashlee made specific references to the $145,000 Hill Construction Co. settlement during voir dire and open and closing arguments. Obviously, if the submission of this case was in any way tainted by the fact Bragg received $145,000 from Hill Construction Co., that infection took place at the trial’s beginning, when each party’s strategy was to present the Bragg-Hill Construction Co. settlement as favoring his or its respective or opposing claims. The jury in this case was well aware of the facts stated in Interrogatory No. 5 long before that interrogatory was read to it. That being so, we fail to see how the language in Interrogatory No. 5 forced or led the jury to any particular answer. Even if the language in the interrogatory would have otherwise been error, that error was invited by Bragg. See Construction Advisors, Inc. v. Sherrill, 275 Ark. 183, 628 S.W.2d 309 (1982).

For the above reasons, we affirm.

       Lashlee Steel became a defendant joint tortfeasor as a result of separate lawsuits against it by Bragg and Hill Construction Co. and those suits were consolidated with and made a part of the new trial which resulted from the earlier case this court reversed and remanded.


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

text:
    Mark E. GARDNER v. STATE of Arkansas
    CR 86-163
    764 S.W.2d 416
    Supreme Court of Arkansas
    Opinion delivered February 3, 1989

      Mark Cambiano, for petitioner.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for respondent.
   Per Curiam.

The petitioner Mark Edward Gardner was found guilty in the Circuit Court of Sebastian County of two counts of capital murder and sentenced to death on each count. We affirmed. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Petitioner now seeks permission to proceed pursuant to Criminal Procedure Rule 37. He has also filed a motion to amend. As the amendment raises no ground for post-conviction relief not raised in the original petition, the motion is denied. Petitioner’s sole ground for relief under Rule 37 is that the aggravating circumstance found to exist by the jury in the sentencing phase of his bifurcated trial has since been invalidated. The invalidation is alleged to have come about because a conviction for a prior violent felony which formed the basis for the jury’s finding of an aggravating circumstance in the sentencing phase of petitioner’s trial has since been reversed on appeal. We must initially determine whether an attack on a death sentence by means of an allegation that an aggravating circumstance has been invalidated after trial is within the scope of our post-conviction rule.

Rule 37 provides a remedy when a conviction and sentence were: (1) obtained in violation of the constitution and laws of the United States or of this state; (2) the court imposing sentence was without jurisdiction to do so; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. Rule 37.1. The sentence here clearly was not unconstitutional or unlawful when imposed. It did not exceed that authorized by law and was imposed in a court with jurisdiction to impose it. All that remains is whether the challenge raised by petitioner constitutes a collateral attack or a direct challenge to the conviction. If it is a direct challenge in the form of new evidence to attack the sentence, it is not cognizable under Rule 37. See Malone v. State, 294 Ark. 127, 741 S.W.2d 246 (1987); McDaniel v. State, 282 Ark. 170, 666 S.W.2d 400 (1984). We conclude that the question raised by petitioner constitutes a direct attack on the evidence used to establish an aggravating circumstance which was proved at trial and as such cannot be raised under Criminal Procedure Rule 37; but even if the allegation were considered a collateral attack, it would have no merit under the facts of this case.

At the sentencing phase of petitioner’s trial, the state proved beyond a reasonable doubt the aggravating circumstance that petitioner had previously committed another felony an element of which was the use or threat of violence to another person or creating a substantial risk of death or serious physical injury to another person. Ark. Code Ann. § 5-4-604(3) (1987). To establish the existence of the aggravating circumstance, the prosecution introduced judgments from Illinois entered in 1974 which reflected that petitioner had been found guilty of robbery and aggravated robbery and also called as witnesses a couple from Illinois who testified as to violent crimes committed against them by petitioner in that state in 1985 for which petitioner had not yet been tried. Petitioner based his argument for post-conviction relief on the claim that “the conviction upon which [his] death sentence was based has been reversed on appeal.” He does not state whether he has reference to one of the 1974 convictions or the convictions ultimately obtained for the offenses against the couple in 1985. Moreover, he states that he has attached to his petition a copy of the reversal of the Illinois Court of Appeals, but the document attached is an order of an Illinois circuit court dismissing five indictments which appear to be from 1985 and 1986 which bears a notation indicating that the reason for not pursuing the charges is that petitioner Gardner had already been sentenced to serve ninety years in the Illinois Department of Correction on a charge filed in 1985 and is under a death sentence in Arkansas. If it is assumed from the dates on the indictments that petitioner is not referring to the 1974 crimes, there is still no way to know whether the indictments are for crimes against the couple who testified at trial as there is no reference to the names of the victims or other information to link the indictments to the couple. The state in its response asserts categorically that none of the indictments pertains to petitioner’s Arkansas death sentence and further that it can produce certified documents from the Illinois Court of Appeals which show that petitioner was convicted of the crimes against the couple who testified and that the convictions were duly affirmed on appeal.

Assuming for the sake of argument that petitioner is accurate that the convictions have been reversed, he has nevertheless stated no cause to vacate the death sentence imposed at his trial. He relies on the recent case of Johnson v. Mississippi, 486 U.S. __, 108 S.Ct. 1981 (1988), to support his argument that he is entitled to have his death sentence vacated, but Johnson can be distinguished. In Johnson, the jury found the existence of three aggravating circumstances, one of which was that Johnson had been previously convicted of a felony involving the use or threat of violence to another person. The sole evidence of the prior felony was a document reflecting a conviction for assault to commit rape. The assault conviction was overturned on appeal after trial, and the United States Supreme Court concluded that since the assault conviction was invalid and the prosecutor had presented no evidence of the conduct underlying it, Johnson was entitled to be resentenced. Johnson is not applicable to petitioner’s case because at petitioner’s trial the jury heard detailed direct testimony by the victims of the prior violent felony and other evidence which established the nature of petitioner’s conduct. In addition to their testimony, there was further evidence of the crimes against them introduced in the sentencing phase of petitioner’s trial. The aggravating circumstance was thus proved by evidence adduced at trial of the commission of violent acts rather than by proof of a conviction, a practice which this court has upheld. See Miller v. State, 280 Ark. 551, 660 S.W.2d 163 (1983). We held on appeal that the state had met its burden in petitioner’s case of proving the aggravating circumstance, and petitioner has offered no meritorious challenge to his death sentence whether the challenge be considered direct or collateral.

Petition and motion denied.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This court appears for the first time to hold that upon post-trial vacation of a felony which had been used as an aggravating circumstance in petitioner’s capital felony murder trial, the use of the vacated sentence at his trial cannot be the subject of a Rule 37 petition. The court today holds that such use of a conviction subsequently vacated cannot be directly or collaterally attacked through a Rule 37 petition. In my opinion, this decision flies in the face of Rule 37. Moreover, the recent case of Johnson v. Mississippi, 486 U.S. _, 108 S. Ct. 1981 (1988), requires that this matter be given consideration by this court.

The majority in this case appears to make the same argument that the Mississippi Supreme Court used in Johnson. When other cases were attacked on direct appeal on similar grounds, the Mississippi court had held that the matter should have been presented in a post-conviction proceeding. However, in Johnson, a post-conviction proceeding, the Mississippi court held that the matter should have been pursued in a direct attack. The U.S. Supreme Court reversed, holding that the use of this aggravating circumstance violated the Eighth Amendment’s prohibition of cruel and unusual punishment.

In my opinion, Johnson v. Mississippi is controlling in the present case, unless we are able to distinguish Johnson in a different manner than the majority opinion. If we can say, as the majority implies, that the vacated conviction was not the one used as an aggravating circumstance, then the problem is solved. However, if the vacated sentence was in fact used as an aggravating circumstance, then this court must take further action. The only way we are going to know which conviction was vacated is to grant this petition and allow a hearing to be held in the trial court.

The majority reasons that in spite of the vacation of the sentence, the state still proved the commission of a prior violent felony. How can there be proof that a felony has been committed without proof of a conviction? Are we as individuals permitted to decide what acts constitute a felony? Or was the capital felony sentencing jury in effect permitted to “retry” the vacated sentence? The sentencing procedure condoned in this case constitutes double jeopardy as well as cruel and unusual punishment.

The majority opinion takes further liberties with the law concerning aggravating circumstances. In order for the commission of a prior felony to be used as an aggravating circumstance, Arkansas Code Annotated § 5-4-604(3) (1987) requires that “The person previously committed another felony, an element of which was the use or threat of violence to another person or the creation of a substantial risk of death or serious physical injury to another person.” (Emphasis added.) This provision does not include the “violent acts” relied upon in the majority opinion. Clearly the provision requires that the person “previously committed another felony” in order for the act to be used as an aggravating circumstance. The petitioner’s conviction in this case may have been vacated.

It is my opinion that this petition should be granted in order that we might at least know the basis of our decision. I cannot agree that Rule 37 is an improper vehicle to attack a sentence in this manner.


text:
    Billy GRISSO v. STATE of Arkansas
    CR 88-84
    763 S.W.2d 661
    Supreme Court of Arkansas
    Opinion delivered February 6, 1989

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This appeal, from a denial of Rule 37 relief, is affirmed because of a complete failure to abstract the record. Bryant v. Lockhart, 288 Ark. 302, 705 S.W.2d 9 (1986). It also involves an untimely petition filed beyond the three year limit, A.R.Cr.P. Rule 37.2(c), and it is a second petition for postconviction relief. Collins v. State, 280 Ark. 312, 657 S.W.2d 546 (1983).

Affirmed.


author: John I. Purtle, Justice.

text:
    DENA CONSTRUCTION COMPANY, INC., and J.A. Lamberth v. BURLINGTON NORTHERN RAILROAD
    88-201
    764 S.W.2d 419
    Supreme Court of Arkansas
    Opinion delivered February 6, 1989

      Mixon & McCauley, for appellant Dena Construction Co.

      McDaniel & Wells, P.A., by: Phillip Wells, for appellant J.A. Lamberth.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   John I. Purtle, Justice.

Dena Construction Company, Inc., and J.A. Lamberth, appeal from the verdict and judgment of the trial court finding that neither the driver of the tractor pulling the lowboy trailer nor the operator of the railroad train were negligent. For reversal the appellants argue that: (1) the court erred in granting the railroad’s motion in limine to prohibit the introduction of evidence of subsequent remedial measures; (2) the court erred in submitting to the jury a violation of statute instruction describing a railroad’s obligation to construct a crossing at a specified grade; and (3) the court erred in denying appellant’s instruction concerning the duty of a railroad to construct and maintain safe crossings. We conclude that the trial court did not err and therefore affirm the decision.

On March 6, 1987, Randy King, an employee of J.A. Lamberth, was driving a tractor pulling a lowboy trailer which carried a bulldozer owned by Dena Construction Company. As he attempted to cross the Burlington Northern Railroad tracks on Hasbrook Road, the lowboy became lodged on the tracks. For about 45 minutes the driver of the tractor attempted to dislodge the lowboy from the crossing. He also attempted to notify Burlington Northern that the crossing was blocked by the trailer. However, the appellee never received any warning, and its train struck and destroyed the lowboy trailer and the bulldozer. Dena and Lamberth sued the railroad for damages asserting: (1) negligence in constructing the crossing, (2) failure to establish appropriate notice procedures, and (3) negligent operation of the train. Burlington answered, claiming negligence on the part of King. The jury returned a verdict finding no negligence on the part of anyone.

At the beginning of the trial the court granted appellee’s motion in limine and prohibited the appellants from introducing evidence of a subsequent remedial nature. The stated purpose of the proffer of the evidence was to establish control of the crossing by the railroad, or to impeach a witness. During the course of the trial the appellants made several requests that they be allowed to offer the evidence of subsequent remedial measures, but each time the trial court reaffirmed its original decision.

Proffered exhibits 34 through 37 are photographs of the crossing which reveal that additional asphalt had been added to the highway on each side of the crossing. It was contended that this evidence would demonstrate that the railroad had control of the approaches to this crossing. However, the pictures themselves would not have established whether the city, state or railroad did the remedial work. In such case we cannot say the trial court abused its discretion in refusing to accept these photographs into evidence.

The appellants argue that the testimony of three witnesses would have established that the railroad did the work on the approaches to the Hasbrook crossing. Witness Van Doyle, roadmaster for Burlington Northern, testified that the railroad did not have the responsibility for the crossing except between the ends of the ties. He further stated that even if repairs or corrective measures were needed at the crossing, the railroad could not legally work beyond the ends of the ties. He testified that the authority to do this work was with the state or county. The appellants were not permitted to put in testimony by Van Doyle that the repair work on the asphalt approaches was performed by the railroad after the accident. It was contended that Doyle had testified in a deposition to the contrary. It may have been so, but the deposition is not abstracted.

It was acknowledged by the parties that the approaches to this crossing met the requirements of a state law concerning grades of approaches. It is obvious that someone added the asphalt to the approaches for the purpose of making the crossing safer for such vehicles as the lowboy destroyed in the accident. However, subsequent remedial action is not allowed as proof of negligence.

Rule 407 of the Arkansas Rules of Evidence provides that subsequent measures are not admissible to prove negligence or culpable conduct in connection with a prior event. The rule concludes: “This rule does not require the exclusion of evidence of subsequent measures if offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.” Both parties cite Gist v. Meredith Marine Sales, 272 Ark. 489, 615 S.W.2d 365 (1981), where we applied the rule and stated: “However, the rule does not require the exclusion of subsequent measures if offered for the purpose of proving ownership, control, or feasibility of precautionary measures, if controverted, or for impeachment.”

The appellants first argue that the excluded exhibits and testimony of Van Doyle were offered for the purpose of showing control. The testimony and evidence reveal that Burlington Northern was in control of the railroad and the state in control of the highway. Obviously the point where the two crossed was under the control of both. The court ruled that the crossing was under the joint control of the state and the railroad. Certainly there was no real dispute as to ownership or control in the present case.

The appellants also insist that the evidence was offered to impeach the testimony of Van Doyle. As previously stated, the deposition of Van Doyle was not introduced or proffered. We therefore cannot review what he said in his deposition. Since we are unable to determine from the abstract whether his testimony at the trial contradicted that in the deposition, we cannot hold that the evidence of subsequent repairs was offered for the purpose of impeachment. The appellants have failed to establish that this evidence was offered for some recognized exception to the rule rather than to prove negligence.

The second argument is that the court erred in giving a jury instruction based on a statute that prescribes the railroad’s obligation to construct a crossing at a specified grade. See Arkansas Code Annotated § 23-12-305 (1987). It was stipulated by the parties that the railroad crossing was constructed in accordance with this law. The court nevertheless instructed the jury on the requirements of the statute. The instruction did little more than repeat the stipulation. Since it was not at issue, the statute should not have been given in the instructions. However, the appellants have not demonstrated that it resulted in prejudicial error.

The appellants argue that the statute applies only to crossings in incorporated cities and towns; that the instruction was therefore improper because this crossing was outside the corporate limits. The critical wording of the statute applies the standard to “a railroad across any public road, highway, or street in any incorporated city or town.” Perhaps the wording. is awkward but its obvious meaning is to cover all railroad crossings. This statute refers to any crossing at a “public road,” “highway,” or “street in any incorporated city.”

The statute originally regulated only crossings outside the corporate limits of any city or town. The 1913 amendment imposed upon the railroad the same duty to erect crossings over streets in cities and towns as previously existed with respect to roads and highways. See Kansas City S. Ry. v. City of Mena, 123 Ark. 323, 185 S.W. 290 (1916). The appellants’ contention that the statute applies only inside city limits is not well founded because this law clearly covers crossings outside as well as inside corporate limits.

The third argument is that the court erred in denying appellants’ requested instruction concerning the duty of a railroad to construct and maintain safe crossings. The proffered instruction reads as follows:

A railroad is under a duty properly to construct and maintain crossings over all public highways on the line of its road in such manner that the crossing is safe and convenient to travelers so far as it can do so without interfering with the safe operation of trains.

The proffered instruction seems to require the railroad to make its crossings safe and convenient to all travelers. The instruction probably goes beyond what the law of the state requires. If not, its contents are included in the jury instruction given that both the railroad and the driver of the tractor had a duty “to use ordinary care for the safety of their own property and the property of others.” It was not error for the court to refuse the proffered instruction.

Affirmed!


text:
    James HOWELL v. Gene BULLOCK and Verla Beth Bullock
    88-234
    764 S.W.2d 422
    Supreme Court of Arkansas
    Opinion delivered February 6, 1989
    [Rehearing denied March 13, 1989.]

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellant.

      Walters Law Firm, P.A., by: Bill Walters, for appellee.
   John I. Purtle, Justice.

The appellees were awarded a jury verdict in the amount of $38,460.00 on their complaint against the appellant for negligence in failing to procure the correct insurance coverage. The complaint alleged that the insurance agent failed to obtain the coverage requested on the appellee Gene Bullock’s motorcycle. For their appeal the appellants argue that there was no substantial evidence to support the jury’s verdict, and that the trial court erroneously instructed the jury on the issues and damages. Finding no substantial evidence to support the jury’s verdict, we must agree with the appellant’s first point and reverse and dismiss this case.

Gene Bullock confronted his former insurance agent with a coverage question when his policy came up for renewal. Upon being told that there was no liability coverage for passengers on the motorcycle, he decided to change agents. He then contacted the appellant, an agent for Shelter Insurance Company, and attempted to buy coverage “for my wife or anybody else that would be riding behind me.” When the agent checked with a supervising office, he found that he could write a policy with a provision for “guest passenger liability insurance.” Gene Bullock specifically rejected medical pay coverage. He consistently requested “coverage on anybody riding on his motorcycle with him.” He purchased a liability policy in the amount of $ 100,000/ 300,000 for bodily injury and $25,000 for property damage. For an additional premium of $66.00 he was issued a policy containing liability coverage for passengers on the motorcycle. The insurance policy was issued on March 15, 1982. It provided coverage for a 1982 Honda motorcycle.

Gene Bullock was driving the motorcycle on April 17,1983, when it went off the road, or at least onto the shoulder, and turned on its side, injuring his wife Beth Bullock, who was riding behind her husband as a passenger. Upon presentment of a claim, the insurance company denied it for lack of coverage. The appellees insisted they had liability coverage for her injuries. The insurance company subsequently offered them medical pay coverage. However, this was unsatisfactory, and suit was filed against the insurance company and the agent.

The insurance company was granted summary judgment, which decision was upheld by the Court of Appeals pursuant to Arkansas Rules of Civil Procedure Rule 54(b). The appellees did not proceed further against the insurance company, and the case went to trial against the agent only.

Testimony at the trial was somewhat conflicting. It seems clear, however, that Gene Bullock sought coverage for his wife or any other passenger and rejected medpay in favor of “guest passenger coverage.” It was the appellees’ contention throughout the course of events and at trial that Gene Bullock specifically requested coverage for anyone injured while a passenger on his motorcycle. His strongest testimony was that, after the negotiations were completed and telephone calls to the insurance company’s home office were made, the appellant had stated: “Anybody back there is covered. If you do bodily damage to anyone on that motorcycle they are covered.” The agent testified that all he ever told the appellee was that “anyone riding on the motorcycle would be covered under guest passenger liability, which is for liability when the driver of the vehicle was at fault.”

Apparently the appellees wanted coverage which would apply to any passenger injured on the motorcycle, regardless of fault and without limits. This type of coverage was not offered by either Shelter or any other insurance company. Obviously the appellees either did not read or did not understand the policy issued to them. Otherwise, they would have brought the matter to the attention of the company or the agent from whom they purchased the policy. Moreover, the appellees filled out an application for exactly the type of policy which was issued. Additionally, Gene Bullock admitted he never examined the policy. It is the duty of a policyholder to educate himself concerning matters of insurance coverage. Stokes v. Harrell, 289 Ark. 179, 711 S.W.2d 755 (1986).

According to its express terms, the policy issued to appellees was a liability policy. Liability was not established at the trial below; therefore, it was not determined whether there was any liability coverage extending to the passenger’s damages in this case. In the absence of any substantial evidence that this loss would have been covered under any type of liability policy without proof of fault, there was no issue to be presented to the jury.

Reversed and dismissed.