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

text:
    Jimmy Harvey et al v. Worthen Bank & Trust Co.
    5-4951
    440 S.W. 2d 547
    Opinion Delivered May 12, 1969
    [Rehearing denied June 9, 1969.]

      Howell, Price & Worsham for appellants.

      Wright, Lindsey & Jennings for appellee.
   George Bose Smith, Justice.

More than a year after the three appellants bought a Dodge car from an automobile dealer the vehicle was heavily damaged in a collision. The purchasers then learned that the collision insurance upon the car, which had been cancelled by the insurance company several months earlier, had not been replaced. Upon being sued for the balance due on the conditional sales contract the purchasers filed a cross complaint against the appellee, Worthen Bank & Trust Company, asserting that the bank, which had financed the sale, had been at fault in failing to obtain a substitute policy of collision insurance when the first one was cancelled. This appeal is from a judgment sustaining a demurrer to the cross complaint and dismissing it.

The essential facts are simple. The appellants bought the car from Bevis Dodge on April 12, 1966, executing a conditional sales contract for a deferred balance of $3,600.36, payable in 36 monthly installments. That balance included a charge of $323.00 for insurance on the car. The contract also contained this paragraph relating to insurance:

Any sums spent by seller for insurance or taxes on the purchased property... will be repayable by buyer (with interest on each expenditure from the date thereof at 6% per annum); which reimbursable items will be added to and constitute a part of the Deferred Balance. If requested by seller, buyer will carry insurance upon said property for the full insurance value thereof the policy or policies (showing loss payable to seller as its interest may appear) to be delivered to and held by seller; and selle]' may apply any insurance proceeds upon the amount then owing hereunder in inverse order of maturity.

The contract, which was on the bank’s printed form, was assigned to the bank by Bevis Dodge, with recourse. On December 2, 1966, the collision insurer cancelled its policy for an undisclosed reason and sent the unearned premium of $238.60' to the bank. The bank simply held the money, making no attempt .either to obtain substitute insurance or to pay the money to the purchasers. The car was damaged in a collision on May 19, 1967. On July 26, 1967, the bank applied the refunded premium to the principal debt and reassigned the contract to Bevis Dodge, who sold the car for salvage and brought this action for the unpaid balance of $1,670.44. The purchasers admitted, for the purposes of the demurrer to their cross complaint, that they knew of the cancellation of the policy and made no demand upon the bank to refund the premium or to purchase new insurance.

Counsel for the bank, citing Providence Wash. Ins. Co. v. Ark. Farm Bureau, Finance Co., 221 Ark. 327, 253 S.W. 2d 226 (1952), insist that although the bank had the right to obtain insurance on the car it was under no duty to do so. Hence it is argued that the purchasers’ cross complaint did not state a cause of action.

That argument is not sound when, as here, the buyer’s obligation includes the full amount of the insurance premium for the entire term of the contract. The point was decided in Dahlhjelm Garages v. Mercantile Title Ins. Co., 149 Wash. 184, 270 P. 434 (1928), in this language :

The second objection is that the contract does not impose a mandatory duty to keep the automobile insured against injury by collision upon the appellant or its assignors. This objection has its foundation in the language used in the quoted part of the contract. It will be noticed that the language is that the seller may keep the automobile insured, not that it must do so. But it will be remembered that the seller exacted and was paid, in addition to the purchase price of the automobile, a stated sum for the very purpose of keeping it insured. If its obligation would have been otherwise optional, it became absolute when it made this exaction.

To substantially the same effect see Minor v. Universal C.I.T. Credit Corp., 27 Ill. App. 2d 330, 170 N.E. 2d 5 (1960); Liretta v. Menard, La. App., 20 So. 2d 382 (1945); and Smith v. Hellman Motor Corp., 122 Misc. Rep. 422, 204 N.Y.S. 229 (1924).

The case comes to us on demurrer, with all inferences to be resolved in favor of the cross complainants. We are unwilling to say that under the affirmative allegations of the purchasers there is no issue of fact with respect to the bank’s duty to obtain new insurance coverage or to afford the purchasers the opportunity of doing so.

Reversed and remanded with instructions to overrule the demurrer.

Byrd, J., dissents.

Conley Byrd, Justice.

In disagreeing with the majority I wish to point out that I do not disagree with the authorities upon which they rely but with the majority’s application of those authorities to a situation in which there is a cancellation of an insurance policy.

In Dahlhjelm Garages v. Mercantile Insurance Co., 149 Wash. 184 (1928), the seller insisted upon placing the insurance with the finance company’s related companies. The insured then pointed out that he wished coverage for the “for hire” use of the automobile and that suc.h coverage was not readily available in most companies. However the seller with this knowledge exacted, the premium and did obtain coverage (apparently for a one }rear term) as requested by the insured. When time came, the finance company to whom the contract had been assigned purchased insurance which excluded “for hire” coverage. Under those circumstances I will agree that the seller or lender who had collected the premium and undertook to place the insurance but did so negligently should be held to the same liability that exists in the case of an insurance agent or broker. This was the effect of the Washington decision and also the Illinois decision in Minor v. Universal C.I.T. Credit Corp., 27 Ill. App. 2d 330 (1960).

The foregoing situation, however, differs greatly from the situation in which a cancellation occurs. Here it is admitted that the appellants knew of the policy cancellation and that they made no demand upon the bank to refund the premium or to purchase new insurance. The authorities generally hold that an insurance agent or broker would not be liable in the circumstances in which the bank here finds itself; see 43 Am. Jur. 2d Insurance § 177 and 29 A.L.R. 2d 171, 201, § 27.

The reason for not holding au insurance agent or broker liable for not procuring other insurance upon a cancellation is obvious. Cancellations come about because of an increased risk which the insurer is unwilling to cany. Such cancellations ordinarily occur as the result of the insured’s own conduct. It is common knowledge that when a cancellation occurs new insurance can only be obtained at a greatly increased premium rate. In recognition of this, our legislature has provided for assigned risk plans, see Ark. Stat. Ann. § 75-1486 (Repl. 1957). Therefore the majority opinion, by holding the lender, Worthen Bank & Trust Co., liable for failure to acquire additional insurance upon the cancellation of Harvey’s policy, is placing a burden upon Worthen that it did not obligate itself to undertake and holding it to a duty greater than it would hold an insurance agent or broker under the same or similar circumstances.

As I view the record here Worthen or its assignor complied with its obligation of procuring the insurance but the policy was cancelled without any fault of Worth-en. In all of the cases relied upon by the majority the lender only partially complied with its obligation by acquiring coverage for a portion of the term and liability resulted from the failure to renew or the lender’s negligence in doing so. That is not the situation here.

Therefore I respectfully dissent.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Billy Gross v. State of Arkansas
    5-5408
    440 S.W. 2d 543
    Opinion Delivered May 12, 1969
    [Rehearing denied June 9, 1969.]

      -Clark, Clark & Clark for appellant.

      Joe Purcell, Atty. Gen., Don Langston, Asst. Atty. Gen.; Jerry D. Pinson, Asst. Atty. Gen. for appellee.
   Lyle Brown, Justice.

This is an appeal by Billy Gross from a conviction of second degree murder and a sentence of twenty-one years, which punishment was imposed as the result of a second trial which began on October 7, 1968. The principal attack upon the verdict is based upon the admission of evidence which showed that Gross remained silent in the face of a statement accusatory in nature made in his presence by an alleged accomplice. Other points for reversal are based upon the admission into evidence of certain photographs, testimony given at the first trial by a doctor who was absent from the State at the time of the second trial, and the reception in evidence of various items showing the presence of blood.

The State produced eyewitness evidence of an orgy of drinking, fighting, and sexual acts which occurred at the home of Frank A. Birch in the Hattieville community, Conway County, on the night of Saturday, September 28, 1963, and which culminated in Birch’s death. Birch was better known as Dutch Chartan. As did the witnesses, we will refer to him as Dutch.

According to the State’s evidence, two couples assembled in North Little Rock early that Saturday night. They were Billy Gross, Dollie Jean Roberts, Benjamin AVinegart, and Beverly AVllkerson. After procuring some whiskey and wine the two couples motored to Hattieville, some sixty miles distant. They first visited briefly at the home of Billy’s mother. From there they drove to the home of Dutch Chartan, with whom Billy and Dollie Jean were well acquainted. The party first engaged in licentious dissipation with all five participating. The festivities culminated in a fight. Billy is said to have called Dutch vile names and accused Dutch of “snitching” on him. Dollie Jean testified that Billy announced his intention to kill Dutch; that Billy struck Dutch with a stick of wood, cut on Dutch’s throat with a pocket knife, and then procured a saw and “started sawing his throat.” She testified that the blows from the stick felled Dutch near a stove and that he remained there. The two couples were said to have left the premises shortly before dawn Sunday morning; they went back to the home of Billy’s mother and slept uutil midafternoon. Upon arising they returned to Dutch’s house, assertedlv to procure more liquor. Gross and AVinegart entered the house and stayed for some time. AVhen they returned to the car the two couples drove back to North Little Rock. On the return trip Gross allegedly told the women to get together on a.story that they had not been with Gross and AA7inegart and that Gross stated further the men would probably he out of the State by night.

Sheriff Marlin Hawkins, in response to a call, went with other officers to the home of Dutch Chartan that Sunday night about eleven o’clock. In the disheveled house they found Dutch’s body. One or two sticks of wood and a coke bottle and a saw were observed to be stained with a red substance which appeared to be blood. There was also a towel and a pan of water, both of which contained a reddish substance.

An all-points bulletin was circulated on Gross and Winegart and they were shortly apprehended in Lubbock, Texas. Sheriff Hawkins returned them to Morrilton, the county seat. Other facts pertinent to the appeal will be related as the points for reversal are discussed. We will not burden the opinion with much of the voluminous evidence introduced because the sufficiency of the evidence to sustain a conviction is not in question.

The first two points for reversal are concerned with what is commonly called the “tacit admission rule.” Sheriff Hawkins testified that on the return trip from Lubbock, Benjamin Winegart started talking about the incident. The sheriff said he thereupon advised both Winegart and Gross that they were not being asked to discuss the charges, that any statements bjr them could be used at the trial, and that they were entitled to consult an attorney before making any statements. Winegart is said to have stated that they did not know they had killed Dutch until the officers arrested them in Lubbock.

Another conversation allegedly occurred at the jail in Morrilton some few days after Winegart and Gross were incarcerated. At that time they were together in a cell “no larger than a jury box.” Sheriff Hawkins had learned that on their flight from North Little Rock to Lubbock, the men came through Morrilton, which was not on a direct route between the first named cities. Hawkins said he told Winegart and Gross at the jail that he was curious to know why they went out of their way to come by Morrilton. He testified that Winegart answered by saying that Gross intended to proceed to Hattievilie, a short distance north of Morrilton, to the home of Dutch Chartan, and burn the building — “the building' in which Chartan’s body was at:” Winegart said he dissuaded Gross from that plan while they were eating a sandwich at Morrilton, and they proceeded to drive to Lubbock. Sheriff Hawkins testified that Gross could not help hearing the damaging statements made by Winegart and that Gross made no response.

The fact that Gross remained silent in the face of Winegart’s statements was admissible in his first trial in 1964. Moore v. State, 229 Ark. 335, 315 S.W. 2d 907 (1958); Martin v. State, 177 Ark. 379, 6 S.W. 2d 293 (1928). The 1964 conviction, which carried a life sentence, was set aside by the federal court on a finding that Gross had been denied his constitutional rights with respect to having an appeal perfected. Gross v. Bishop, 273 F. Supp. 992 (1967). It was there held that the denial of due process could not be corrected except by new trial.

Prior to the second trial came the decisions in Miranda v. Arizona, 384 U.S. 436 (1966); and Johnson v. State of New Jersey, 384 U.S. 719 (1966). This rule affecting tacit admissions was stated in Miranda: “In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. The ])rosecution maA7 not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.” Then followed the pronouncement in Johnson Avhich said Miranda should apply only to cases commenced after Miranda was announced; and it was also stated that the Miranda guidelines “are therefore available only to persons whose trials had not begun as of June 13, 1966.”

This brings us to the vital question in this case, namely, whether Miranda applies to the 1968 retrial. The question is treated exhaustively in State v. Branch, 161 S.E. 2d 492 (N.C. 1968). There it is emphasized that ihe Avliole tenor of Miranda is prospective in application, not retroactive. Branch cited with approval the case of Jenkins v. State, 230 A. 2d 262 (Del. 1967). Jenkins summarizes the view of that court in these words:

It is our opinion that Miranda should not apply at retrial, notwithstanding the fact that it will be held after the June 13, 1966 effective date of Miranda. We think it neither logical nor reasonable that the retrial should be conducted under rules different from those prevailing when the cases were tried the first time. In Johnson v. State of New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966), the United States Supreme Court stated: “We hold further that Miranda applies only to eases in which the trial began after the date of our decision [June 13, 1966] * * Although de novo, a new trial is not a new case; it is a continuation of the original case until the judgment is final. In our opinion, Johnson refers to “cases” the original trial of which commenced after June 13, 1966. Neither Miranda nor Johnson, in our view, requires the courts of this State to make applicable upon retrial the Miranda rules which were not applicable at the original trial.

In aligning with the view expressed in Jenkins we are not unmindful of the provisions of our Criminal Code which provide that a subsequent trial shall be de novo. Ark. Stat. Ann. § 43-2205 (Repl. 1964). New York has the identical provision. Its appellate court recently held that upon retrial after Miranda, the confessions used in the first trial before Miranda, and which were inadmissible under Miranda, were nevertheless admissible on retrial. In disposing of the argument that the de novo provisions of the New York Code prohibited the use of the confessions on retrial, the court said that “the crucial factors in determining whether Johnson v. State of New Jersey applies here are considerations of policy and not labels. These sections are, therefore, totally irrelevant to the decision which we must make.” People v. Sayers, 293 N.Y.S. 2d 769 (1968).

State appellate courts are not unanimous as to whether Miranda applies to retrial of a case originally tried on the merits before June 13, 1966. Numerically it can be approximated with reasonable certainty that a small majority of those courts passing on the question hold that Miranda does not so apply. Other than the three state jurisdictions heretofore cited, these cases from other state appellate courts are in agreement with the cited cases: Chapman v. State, 162 N.W. 2d 698 (Minn. 1968); Sims v. State, 156 S.E. 2d 65 (Ga. 1967); People v. Worley, 227 N.E. 2d 746 (Ill. 1967); State v. Vigliano, 232 A. 2d 129 (N.J. 1967); Burnley v. Commonwealth, 158 S.E. 2d 108 (Va. 1967); Hall v. Warden, 434 P. 2d 425 (Nev. 1967); Boone v. State, 237 A. 2d 787 (Md. 1968); and Murphy v. State, 426 S.W. 2d 509 (Term. 1968).

It is insisted that the court erred in admitting four photographs in evidence. The State offered ten pictures depicting the room in which Dutch Clxartan met his death. The court admitted only four of the photographs. AYe are unable to say that the court abused its discretion. The four views of the room and the body could well have supported two theories of the State. The alleged instruments of attack were revealed by the j>ictures. Secondly, the State claimed that Gross and his companion returned to the scene, positioned Dutch’s body and endeavored to clean his face of blood. The manner in which the body is depicted could be said to support the latter theory. The admission, relevancy, and materiality of the photographs are largely within the discretion of the trial judge. If they are accurately taken, show a correct representation of the subject matter, and can be said to be of aid to the jury, they are usually admissible. Higdon v. State, 213 Ark. 881, 213 S.W. 2d 621 (1948). The point is without merit.

Another point concerns the reading by the State of the testimony given by Dr. Roy Hoke in the 1964 trial. He was the pathologist who performed the autopsy on the deceased. In offering that testimony the State met the requirements of Ark. Stat. Ann. § 28-713 (Repl. 1962). Appellant’s only contention is that his court-appointed attorney did not have time to prepare for the examination of this medical witness at the first trial. We find no evidence in the record to sustain that contention.

The trial court permitted Sheriff Hawkins to testify that certain sticks of wood, a coke bottle, a pan of water, and a towel, contained a reddish substance similar to blood. The court also permitted the introduction of all of these items except the pan of water, which was not available. The final point on appeal questions the propriety of the. fore-going evidence. We think the intention is clearly without merit. The State produced other evidence that a terrific fight had taken place. There was direct testimony that sticks of wood were used in the affray. There was no direct testimony that the bottle was utilized, nor was there direct evidence that it was not used. An analysis of the items enumerated revealed the reddish coloration to be human blood. There was direct testimony that deceased was struck with sticks of wood. There was also evidence that blood had been cleaned off the victim’s face between the time of the beating and the moment the officers found him. It is true that the blood to which Sheriff Hawkins testified, or at least some of it, could have come from other participants in the affray. On the other hand, the fact that the deceased’s body showed evidence of being beaten and cut, and possibly by the instruments introduced, would justify the jury in believing that some of the blood probably came from the body of the deceased. Considering the fact that the instruments introduced, together with their condition, would tend to support the State’s theory that Hutch was severely beaten, we cannot say the trial court abused its discretion. See Glover v. State, 194 Ark. 66, 105 S.W. 2d 82 (1937).

Affirmed.

Byrd, J., not participating.


author: Lyre Brown, Justice.

text:
    Williams-Berryman Ins. Co., Inc. v. Carl Morphis, et al
    5-4911
    440 S.W. 2d 227
    Opinion Delivered May 12, 1969

      Williams & Gardner for appellant.

      Laws & Schulze and Don Stu/mbaugh for appellees.
   Lyre Brown, Justice.

Williams-Berryman Insurance Company, Inc., appeals from a summary judgment awarded appellees, Carl Morphis and wife, and First Federal Savings & Loan Association of Russellville. The trial court found (1) that requests for admissions served on Williams-Berryman were answered out of time and should be treated as admitted; and (2) that there remained no genuine issue as to any material fact. Appellant asserts error as to both findings.

The Morphis house burned in February 1966. First Federal held a mortgage on the property. Originally the house was insured with Peoples Indemnity Insurance Company of Arkansas. That insurance was obtained through Williams-Berryman, a Russellville insurance agency. In 1965, Peoples Indemnity was declared insolvent and the policy was transferred to Homestead Fire and Casualty Insurance Company of Pine Bluff, Arkansas.. A claim was filed with Homestead immediately after the fire but Homestead went into receivership some two and one-half months after the filing of the claim and before collection was effected. The home owners and their mortgagee instituted suit against Williams-Berryman. That agency was charged with negligence in failing to place the original policy with a financially sound company, in failing to see that the policy was reissued with a company capable of paying claims, and in failing to process the claim before the insolvency of Homestead Fire.

Plaintiffs served requests for admissions and asked that they be answered within ten days. Answers thereto were filed some seventeen days later. Thereafter and because of the late filing the trial court treated the assertions as admitted; whereupon the motion for summary judgment was granted.

Villiams-Berryman asserts two points as grounds for reversal. The first point actually has three prongs and for clarity we will discuss them separately.

I (a). It was not the legislative intent that the statutory ten-day period be folloived strictly. Certainly we can agree that there is no legislative mandate to the effect that there can be absolutely no exception to the requirement. For example, when the answering party is acting in good faith and but for unavoidable casualty would have timely answered, the tardy litigant might well be excused. See Moore’s Federal Practice § 36.05 [4]. But appellant’s dilemma arises from the fact that the record is silent as to the reason for the delay in filing. To avoid an unintended omission due to delay the defaulting party certainly should come forward with an acceptable explanation for the delay. The appellee failed to timely answer requests for admissions in Federal Factors v. Wellbanke, 241 Ark. 44, 406 S.W. 2d 712 (1966). This court there pointed out that on retrial appellee should insert in the record his defense for late filing; otherwise, the requests would necessarily be considered admitted.

I (b). Appellees had already received-, by ivay of answers and- objections to interrogatories, appellant’s responses to a number of the requests for admissions. The Morphises and Federal Savings filed with their complaint a set of interrogatories. The answer to one of those interrogatories covered the same subject matter as one of the subsequent requests for admissions. The last four interrogatories concerned the ratings of the two fire insurance companies by Best’s Insurance Guide. T\Tilliams-Berrvman refused, on grounds of immateriality, to answer those questions. The same subject matter was covered in the requests for admissions. Williams-Berryman here contends that appellees should bo required to refer to tlie responses to those interrogatories and thereby ascertain Williams-Berryman’s answers to the corresponding requests for admissions. That requirement would relieve Williams-Berryman of admitting the truth of five of the requests for admissions.

As a general rule a party may proceed by interrogatories and by request for admissions without being required to elect. 2A Barron & Holtzoff, Federal Practice & Procedure, § 772 (1961). The same authority points out, in the same section, that although the various discovery procedures are complementary, the use of more than one procedure may become an instrument of oppression. That situation was recognized by our court in Widmer v. Ft. Smith Vehicle & Machinery Corp., 244 Ark. 626, 427 S.W. 2d 186 (1968). We held that the trial court had the inherent power to bridle oppressive discovery methods.

The precise question before us is a narrower one. The defendant responded to a set of interrogatories, fifteen in number, filed contemporaneously with the complaint in October 1966. Iu January 1968 the defendant was served with requests for admissions, twenty-nine in number. Five of those requests can be said to have been covered, either by answer or objections, in the answers to the interrogatories. In those circumstances was the defendant excused from answering those five requests for admissions? There is no contention that the subject matter was repeated as a dilatory or oppressive measure, nor did the defendant seek by court order to have the requests stricken; see Barron & Holtzoff, supra. Under the circumstances we hold that the defendant was obliged to respond to all the requested admissions.

Fundamentally, interrogatories and requests for admissions are designed for different purposes. Interrogatories are designed to elicit information, some, of which might, be inadmissible at trial but may lead to the cliscovery of admissible evidence. Admissible portions of interrogatories may be read as evidence bnt they do not necessarily eliminate from tbe issues the facts covered. To the contrary, answers to admissions make it unnecessary to submit proof on issues settled by the answers and confine the trial to “vital and disputed issues.” People v. The Jules Fribourg, 19 F.R.D. 432 (Calif. 1955). In Electric Furnace Co. v. Fire Ass’n. of Philadelphia, 9 F.R.D. 741 (Ohio 1949), it was pointed out that answers to interrogatories do not ¡eliminate the requirement of proof of facts while admissions do relieve the parties of the cost of proving undisputed facts. It was there held that plaintiff was entitled to an admission notwithstanding tbe previous interrogatories supplied the information. We confine our holding to the facts and circumstances in the case at bar; the cited cases from other jurisdictions lend credence to our conclusion.

I (c). The attorney’s certificate of service of requests for admissions should have been supplemented by proof of time of delivery. The certificate of service attached to the requests is not too revealing. Counsel for appellees there certified that “a copy of this document has been served on the defendant or his attorney by ordinary mail.” The only date thereon is the date the certificate was executed. However, the fallacy in this point is that it is raised for the first time on appeal. When the matter came on for hearing on the motion for summary judgment, which motion included the prayer that the unanswered requests be treated as admitted, it was the duty of appellant to assert any challenges it considered meritorious. Also, it is noted that appellant does not contend the requests were not served some seventeen days before they were answered.

II. Alternatively, if the failure to respond in time to the requests results in the requests being admitted, there is still remaining to be resolved a genuine issue as lu one or more ‘material facts. The contention is correct. It must be remembered that the suit is based on negligence. Certainly a- number of the admissions could be interpreted by tbe trier of facts as casting doubt on the diligence of Williams-Berryman in handling the insurance account of appellees; however, when all doubts and inferences are resolved against the movants, we cannot say that only one conclusion can be reached. To uphold the summary judgment it would have to be said there is no possible defense to the charge of actionable negligence. That we cannot do.

As the record now stands the requests are treated as admitted but the summary judgment should be set aside.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Arkansas State Highway Commission v. William H. Duff, et al
    5-4881
    440 S.W. 2d 563
    Opinion Delivered May 12, 1969
    [Rehearing denied June 2, 1969.]

      Thomas B. Keys and Billy Pease for appellant.

      Gordon, Gordon & Eddy for appellees.
   John A. Fogleman, Justice.

This appeal comes from a judgment awarding appellees $8,500 as just compensation for the taking of 19.54 acres out of a 59-aere tract of land. Two grounds for reversal are asserted. The first is an allegation of error in the denial of appellant’s motion for a change of venue. The second is the contention that the verdict is not based on substantial evidence and that it is excessive. These points will be discussed in the order mentioned.

Before the date the case was set for trial, appellant filed a motion for a change of venue. The allegation that appellant could not obtain a fair and impartial trial in Conway County, Arkansas was based upon a list of 15 cases in which juries in that county had awarded compensation to owners of lands taken by appellant under 1 he power of eminent domain in amounts substantially in excess of the amounts stated to be just compensation by witnesses called by appellant. The motion was verified on behalf of appellant by its attorney. No affidavit in support of the motion for change of venue was filed. In support of its motion, appellant offered only the record of the testimony of another one of its attorneys. This was presented when the case was called for trial. He stated that he had personal knowledge of some of the awards and had knowledge of the value testimony adduced by the parties on the issue of just compensation. His investigation covered the period from June 19, 1967, through July 20, 1968. He investigated the transcripts and files prepared by attorneys for appellant who tried cases in that county during that period. His testimony simply confirmed the allegations of the motion for a change of venue enumerating the amounts of the jury awards and the amounts indicated as just compensation by expert witnesses for both parties in each case.

Our statute requires not only that a motion or petition for change of venue be verified, but, in addition, that it be supported by the affidavit of at least two credible persons that they believe the statements of the petition are true. Ark. Stat. Ann. § 27-701 (Repl. 1962). The motion may be resisted and the judge of the trial court may make an order for the change of venue if in his judgment it be necessary, for a fair and impartial trial. Ark. Stat. Ann. § 27-703 (Repl. 1962). Venue of a civil action shall not be changed unless the court or judge finds that the same is necessary to obtain a fair and impartial trial of the cause. Ark. Stat. Ann. § 27-704 (Repl. 1962). The granting or denial of a change of venue lies largely in the discretion of the trial judge. Louisiana, & Northwest Rd. Co. v. Smith, 74 Ark. 172, 85 S.W. 242; Desha v. Independence County Bridge Dist. No. 1, 176 Ark. 253, 3 S.W. 2d 969. This court will not reverse the trial court’s denial of a change of venue unless there has been an abuse of its discretion. Van Camp v. State, 125 Ark. 532, 189 S.W. 173; Adams v. State, 179 Ark. 1047, 20 S.W. 2d 130; Meyer v. State, 218 Ark. 440, 236 S.W. 2d 996: Walker v. State, 241 Ark. 300, 408 S.W. 2d 905. We cannot say that there has been an abuse of discretion on the part of the trial court when there has not been compliance with the statute governing change of venue. Even if we should agree with appellant that the testimony of its attorney was proper and sufficient to constitute a supporting affidavit as required by § 27-701, this would not be compliance. No matter how credible one affiant may be, a petition for change of venue supported by the affidavit of only one person is properly overruled for noncompliance with a statute requiring the affidavit of two credible persons. Clayton v. State, 191 Ark. 1070, 89 S.W. 2d 732; Davis v. State, 170 Ark. 602, 280 S.W. 636; Hopson v. State, 121 Ark. 87, 180 S.W. 485. There is no error in the denial of a motion for a change of venue which is uot in compliance with the governing statute. Hale v. State, 146 Ark. 579, 226 S.W. 527; Crow v. State, 190 Ark. 222, 79 S.W. 2d 75.

Appellant contends that the testimony of Mr. Charles Owens, an expert value witness called by appellees, did not constitute substantial evidence because he never did give the values of comparable sales used by him in arriving at his value testimony in dollars and cents, although he admitted that some of the sales upon which he based his valuations were of more valuable property than the property of appellees. Appellant admits that this witness qualified as an expert on real estate values in the area. He also showed his familiarity with the property in question. Under these circumstances he was not required to state the facts or reasons forming the basis for his opinion in order to render his opinion as to value admissible. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S.W. 2d 436; Arkansas State Highway Commission v. Dixon, 246 Ark. 756, 439 S.W. 2d 912. It was incumbent upon appellant to show that Owens had no reasonable basis for his opinion before it could be said that his testimony was not substantial. Arkansas State Highway Commission v. Johns, supra; Arkansas State Highway Commission v. Dixon, supra. Thus, the burden fell upon appellant to show that the dollar value of the sales upon which Owens relied lent no support to his opinions. Since appellant’s attorneys did not inquire as to these values, they are in no position to contend that the witness’s failure to give them rendered his testimony insubstantial.

Appellant also argues that Owens based his value testimony upon an incorrect premise, i.e., the market value of five- and ton-acre plots sold from the subject land. We think that the jury might properly have otherwise construed his testimony. Upon request of appellees’ attorney to state some of the comparable sales considered in arriving at his values, Owens stated that there had been several along Highway 64 which had highway frontage and would be more valuable than the property in question and consequently sold for a higher price. He then stated that the bases of his values were these sales and the amounts for which the property could be resold in five- and ten-acre plots for homesites. No objection was made to this testimony, except the objection that the sales were not comparable, which was overruled. On cross-examination, krr. Owens stated that he was aware that appellees’ land was not subdivided or platted, but he considered the development of it would be in five- to ten-acre plots rather than for sale of the property as a whole in determining the value per acre. On redirect examination, these questions were asked and answers given:

“Q. In considering your value and placing your ■ value, you understand it is what Air. Duff could have sold that whole tract to one buyer or combine?
A. Yes.
Q. Before and after?
A. Yes, sir.
Q. Not what he could have sold it for in five or ten acre tracts, but all in one tract at one time?
A. That’s right.
Q. You are talking about what the "Duffs could have done v7ith the water available?
A. Yes, sir.
Q. "Which would make it desirable?
A. Yes, sir.

Upon recross-examination, Owens answered affirmatively to tlie following question:

“Q. You described this property and the drain being through it, is it your testimony — It is my understanding you think there would be a market — would have been a market for this whole 59 acres before the taking that somebody would have been willing to pay $23,600.00 for this property you described?”

In determining whether a verdict is supported by substantial evidence, we must review the testimony in the light most favorable to the appellee and indulge all reasonable inferences in favor of the judgment. Arkansas Skate Highway Commission v. Carder, 228 Ark. 8, 305 S.W. 2d 330; Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381; Arkansas State Highway Commission v. Maus, 245 Ark. 357, 432 S.W. 2d 478. We cannot say that the testimony of Owens, viewed in that light, included values based only on the total of separate sales of lots from the property in question. There was no testimony as to the number of lots that could be sold from the property and Owens clearly stated, both on redirect and recross-examination, that his total values were market values for a sale of the entire tract. Furthermore, the opinion of an expert is not rendered without reasonable basis merely because he bases value figures partially on what lots are selling for in the area. Arkansas State Highway Commission v. Sargent, supra. We also said in the Sargent case that in considering testimony based on comparable sales, it must be remembered that no two tracts of real estate are identical and that reasonable latitude must be allowed in evaluating sales and adjusting and compensating for differences in similar lands. Here, as there, it would not. be reasonable to suppose that one making a study of values of the tract would give no consideration whatever to tlie sale of lots in the immediate vicinity of the tract of land being appraised.

While appellant admits that Mr. Joe Duff, one of the appellees, was competent to testify, it makes virtually the same arguments about the substantiality of his testimony. Appellant admits that this witness based his testimony as to just compensation on his general knowledge of land values in the area as well as on comparable sales. Mr. Duff did display his familiarity with the laud, its relationship to roads and highways, its location with-reference to the city limits of Plumerville' and the streets of that city, the existing easements across the property, the availability of utilities to the property, the uses to which the property had previously been "put, drainage conditions, and the location of houses bordering the property. It has been generally recognized by this court that the opinion testimony of the owner of property is competent and admissible on the question of value, regardless of his knowledge of property values. This is based upon the intimate acquaintance with the propertv arising from his relationship as owner. Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S.W. 2d 1; Arkansas State Highway Commission v. Drenven. 241 Ark. 94, 406 S.W. 2d 327; Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S.W. 2d 201. This does not mean that the testimony of any and every eondemnee constitutes substantial evidence. His testimony must be examined to determine whether a satisfactory explanation is given for the conclusion reached. Arkansas State Highway Commission v. Dorr, 246 Ark. 204, 437 S.W. 2d 463. In that case, the owner did not' reside, upon tlio laud, had no knowledge of market values, and testified about the “worth” of the land, relying principally upon sentimental bases and the desires of her deceased husband. In this case, Duff had lived in Plumerville for most of his life until about two years before the trial when he moved to Morrilton, a few miles away in the same, county. The city limits of Plumerville hounded the Duff property on two sides. In view of the demonstrated familiarity of this landowner with the property, we cannot say that his testimony is not substantial. See Arkansas State Highway Commission v. Maus, supra.

The judgment is affirmed.

Byrd, J., concurs.


author: J. If red Jones, Justice.

text:
    Robert Torrans, d/b/a Commercial Storage & Dist. Co. v. Arkansas Commerce Commission, et al
    5-4870
    440 S.W. 2d 558
    Opinion Delivered May 12, 1969

      Arnold & Arnold for appellant.

      Louis Tar low ski for appellees.
   J. If red Jones, Justice.

This appeal is from a judgment of the Pulaski County Circuit Court affirming an order of the Arkansas Commerce Commission in denying an application by Robert Torrans, doing business as Commercial Storage & Distribution Co., for authority io transport household and other goods and equipment intrastate. Torrans’ main place of business is located in Texarkana, Arkansas, and he had a Texas permit authorizing intrastate operation in that state. He already had Arkansas authorization to transport household goods within Miller County and to and from the city of Texarkana, Arkansas. The intrastate authority was .‘-■ought under the provisions of Ark. Stat. Ann. § 73-1762 (Ropl. 1957) which provides:

.. TA] certificate shall be issued ... if it [is] found that the applicant is fit, willing and able properly to perforar the service proposed ... and that the ... service ... is or will be required by present or future public convenience and necessity; otherwise the application shall be denied; and the burden of proof shall be upon the applicant...”

Several certificated common carriers of the type goods included in appellant’s application filed protests asserting that the proposed service is not required by the present or future public convenience and necessity, and a full hearing was had before the Commerce Commission resulting in the denial of the petition.

Upon appeal from the judgment of the circuit court affirming the order of the Commission, the appellant relies on the following points for reversal:

“Circuit Court erred in not trying the case de novo, according to Sec. 73-133, Ark. Stats., Mo. Pac. T. Co. v. Inter City T. Co., 216 Ark. 95, 224 S.W. 2d 372, and in not deciding whether the determinations of the Commission were contrary to the weight of the evidence, but found that the order of the Commission is supported by substantial evidence, p. 12 of R. Vol. 2, and solely on this basis erroneously affirmed all the findings of the commission.
The trial court erred in sustaining the Arkansas Commerce Commission’s denial of the authority of Torrans for household goods applied for.
The trial court erred in sustaining the Arkansas Commerce Commission’s denial of authority to transport additional commodities.
The trial court erred in sustaining the Arkansas Commerce Commission’s denial of extension of authority from Miller County to include additional commodities in Southwest Arkansas.
The trial court erred in sustaining the Arkansas Commerce Commission’s denial of Torrans’ application in its entirety.
The trial court erred in sustaining the Commission’s finding that ‘the present certified carriers have equipment which stands idle a good part of the time because of lack of business.’ Fisher v. Branscum, 243 Ark. 516.
The trial court erred in sustaining the Arkansas Commerce Commission’s finding that ‘there appears nothing in the record to show that sufficient business is generated in such adjacent counties to justify additional certified carriers.’ ”

Under the appellant’s first point, he argues that the circuit court erred in applying the “substantial evidence” rule rather than the “weight of the evidence” rule in reaching its decision. The trial court’s judgment does recite that the order of the Commission “is supported by substantial evidence, and should be, and the same hereby is affirmed.” Arkansas Statutes Annotated § 73-133 (Repl. 1957) sets out the procedure to be followed by the circuit court in reviewing an order of the Commerce Commission. This statute, insofar as it is applicable here, is as follows:

“Within thirty days after the entry on the record of the [Arkansas Commerce Commission] ... of any order made by it, any party aggrieved may file a written motion .. . prajring for appeal from such order to the circuit court...
The said circuit court shall thereupon review said order upon the record presented . .. and enter its findings and order thereon ...”

Appeals to this court from circuit court judgments affirming or reversing orders of the Commerce Commission are governed by Ark. Stat. Ann. § 73-134 (Repl. 1957), as follows:

“.. . [T]lie appeal to the Supreme Court shall be governed by the procedure, and reviewed in the manner applicable to other appeals from such circuit court, except that any finding of fact by the circuit court shall not be binding on the Supreme Court, but the Supreme Court may and shall review all the evidence and make such findings of fact and lawr as it may deem just, proper and equitable.”

In the case of Wisinger v. Stewart, 215 Ark. 827, 223 S.W. 2d 604, this court said:

“A point not to be lost sight of here is that de novo review by the courts, including this Court, must not proceed as though the Public Service Commission did uot exist and had never held a hearing'. A hearing has been held, and the Commission which held the hearing has had the advantage of seeing and hearing the parties and witnesses face to face, whereas the Circuit Court and this Court review the evidence from the record only. ‘Where a matter is heard and decided by an administrative body such as the Public Service Commission, an order made by it should be upheld by the court on appeal unless it is against the weight of the evidence.’ Camden Transit Co. v. Owen, 209 Ark. 861, 192 S.W. 2d 757, 758.”

Apparently the trial court did err in applying the substantial evidence rule in the case at bar, but such error is not prejudicial to the appellant since we also review the record de novo on appeal from the circuit court and must affirm the order of the Commission if the order is not against the preponderance of the evidence. In Mo. Pac. T. Co. v. Inter City T. Co., 216 Ark. 95, 224 S.W. 2d 372, we said:

“... [T]he de novo review prescribed by the governing statute, Ark. Stats. (1947) 73-133 and 73-134, is similar to that employed by this Court in Chancery appeals. Accordingly it was concluded that ‘This Court’s proper task, in the light of this state of the law, is to inquire whether the determination of the Commission was contrary to the weight of the evidence.’ ”

The testimony presented by appellant in support of his application is summarized briefly as follows: Appellant, Robert Torrans, testified that there is an obvious need for movers in southwest Arkansas based upon moves that he has been unable to handle.

Mr. O. L. Werst, an employee of the appellant, testified that he lived at Hatton in Polk County, Arkansas; that he owns a tractor of his own and did use a rented trailer belonging to Mayflower Transit Oo. prior to his transfer over to working for the appellant in 1960. He testified that if the appellant was awarded the intrastate permit, that he, Mr. Worst, would be in a position to service the area in and around Hatton. He testified that he received telephone calls quite frequently from residents in the community, but that he does not remember specifically who any of the individuals were or the time at which the calls were made. He did recall a Mr. (J. H. Johnson, who lived at Cove, Arkansas, and that he moved him from Cove to Mena, and that since that time, within the last year, he had moved the same man interstate from Mena to Ardmore, Oklahoma. On cross-examination this witness testified that he had only handled the one move intrastate and that he was contacted by one other individual, and suggested that that individual call the appellant in regard to a move from Wicks to Ashdown.

Mr. Hollis Luck of Hope, Arkansas, testified that he was in the used furniture business and previously Avas in the floorswoep manufacturing business; that he used his oaaui truck in picking up used furniture at the various places he purchased it, and that he thinks he would go out and buy more furniture if he could get it moved. He testified that it was necessary for the people in the vicinity of Hope to borrow a cattle or log truck to move their furniture, and that he is unable to get anything shipped out of Hope because the original certified mover AArho was at Hope had died and his wife had sold out to somebody else and that the new owners do not want to move household goods. On cross-examination this witness testified that he desires intrastate service for the appellant in order to bring merchandise into Hope; that he is purchasing used furniture locally at the present time, and that an intrastate carrier based in Texarkana Avould be of very little benefit to him, and that the reason common carriers do not like to handle his merchandise is that it doesn’t weigh enough. This witness testitied tliat he was under the impression that if the application should be granted, the appellant would dispatch a truck to Texarkana to pick up a load of furniture, and that he does not know if other common carriers would do the same thing or not; that he has not investigated what intrastate service is available at the present time.

Mr. Walker Strasner testified that he was in the business of farming and cattle raising, and that he does some trading in real estate at Nathan, Arkansas, north of Nashville. This witness testified that there was new industry moving into the entire area, that he sees lots of moving going on in the community, and that the moving he has observed has been in cattle trucks and open-top trucks. On cross-examination this witness testified that the moving he had observed had been in the vicinity of. Murfreesboro, Nashville, Nathan and Dierks, and that he had never had an occasion to make an investigation as to what type of moving was available from Prescott, Hope or any other towns in that area.

Mr. Ed Smith testified that he lives at DeQueen, Arkansas, and is a salesman for a realty company in that area. He testified that he does not know of any common carriers situated in that area, and that he has had occasion to use the service of a household mover; that he does not remember the date but that he moved from one place to another in the city of DeQueen. He testified that he moved in an open truck and that there was no household mover in town. He testified that he knew of people moving from other parts of Arkansas to DeQueen and from DeQueen to other parts in Arkansas, but that he does not know how they moved. On cross-examination this witness testified that he moved from one place in DeQueen to another address some four years ago and that he did not have need for a household goods mover transportation service.

Mr. Luther Alford testified that he lives in Murfreesboro, Arkansas; that he has lived in that community all of Ills life, is 73 years of age, and lias fanned and lias served eight years as deputy sheriff. He testified that he had observed people moving household goods into and out of Murfreesboro and that the most of them had moved on open cattle trucks. This witness testified that he remembers seeing one van type moving* truck from Hope, and that he thinks that this move was from Murfreesboro to Hope.

Mr. Smith testified that he knew of no specific instance of anyone having difficulty in moving to and from Murfreesboro, but that he did know of one particular case where some people in Clarendon called a cattle truck to come from Murfreesboro to move them. Mr. Smith testified that the majority of the people he had observed moved in cattle trucks and that he cannot think of anyone in particular he has heard complain about lack of moving facilities. On cross-examination this witness testified that the last move he had made was in 3932, when he moved from one part of Murfreesboro to another. He testified that he does not have any need for a moving service, but that he does not know when he might.

Mr. M. A. George testified that he lives in Cove, Arkansas, and is a real estate broker; that some of the sales that he has made have resulted in people moving in and out of the community. He says that most moves are made by pickup trucks or cattle trucks, and that apparently no other local service is available to them. This witness testified that he would be glad to refer his clients to the appellant if the appellant were able to render local service and that he would like to be able to refer his clients who inquire about movers to someone close by. On cross-examination this witness testified that he had no personal need for the service of a household goods mover. He was unable to recall any specific clients who had need of a household mover from Cove, but that everyone would be more or less familiar with the fact that there was no one available. This witness testified that he had no idea of the type service the appellant proposed to render out of Cove, Arkansas, and that he has made no investigation as to existing facilities which might he available in and around Cove. This witness testified that he could think of no reason why existing carriers could not have performed the services needed in the community. He testified that he had contacted no mover of household goods and has had no occasion to do so. He says that he has heard complaints about the lack of moving facilities but cannot remember who made them or when. He testified that he had made no effort to find moving service in Texarkana or the nearby towns.

Mr. A. J. Robinson testified that he lives at Wicks, Arkansas; that .lie owns a little motel and drive-in and that he is a real estate broker. This witness testified that the community was growing; that he had seen people moving in pickups and cattle trucks, but that he does not know whether the trucks belong to the people doing the moving or to someone else. This witness testified that be has no need for a furniture moving service personally.

Mr. George Turner testified that he lived in Lewis-ville; that the community is growing, that there is no common carrier of household goods stationed in Lewis-ville, and that the people moved mostly by pickup truck. On cross-examination Mr. Turner testified that it is approximately 30 miles from Lewisville to Texarkana; that until very recently he was office manager for Cherokee Carpet Mills; that he has no need for moving service himself and that his only reason for appearing as a witness was to testify that Lewisville has grown in population in'the last five years, and that new industries are coming into the area.

Mr. Jim C. Reece and Mr. Odie Jackson, who live at Nashville, testified substantially the same as the other witnesses to having seen people moving locally on bob-trucks and most anything they could get. Mr. Jackson testified that he liad seen a few moving vans come into Nashville, but does not know where they were from or anything about them. He testified there was no common carrier of household goods domiciled in Nashville, and that he suspects Texaidtana would be the closest place to obtain the services of a regular moving van for the moving of household goods.

Mr. W. A. Jones testified that he lived in Texark-■ ana and is in the real estate business. He testified that the population in and around Ashdown is increasing and testified as to the new industry that is coming* into southwest Arkansas. On cross-examination this witness tesüfied that Ashdown is approximately 20 miles from Texarkana, and that he himself has no transportation problems of any kind.

The twelve protestants offered testimony 'to the effect that they were actively engaged in the rendition of the same services included in appellant’s application. They testified that they were ready, able and willing to accept additional business and that there were many tidies when some of their equipment was standing idle. They testified that they solicited business by advertisements in the yellow pages of telephone directories in all parts of the state, including southwest Arkansas ;• that they accepted long distance collect calls from prospective customers and had never received a request for service fhey'wore unable or unwilling to perform.

.The finding of the Commission, in denying the appellant’s application, is set out in part as follows: . .

“The Commission has given careful consideration to all of the facts and the evidence and, as stated above, finds that the Applicant has not met the burden of proof imposed upon him by Section 9 (a) of Act 397 of the Acts of Arkansas, 1955.'' Accordingly, it follows that no useful purpose would be served by granting Applicant authority in any adjacent county, since there appears nothing in the record to show that sufficient business is generated in such adjacent counties to justify additional certificated carriers. Prom the foregoing, the Commission is of the opinion that the application must be denied in its entirety.”

In the rather recent case of Arkansas Best Freight System v. Missouri Pacific Truck Lines, 240 Ark. 664, 401 S.W. 2d 571, we said:

“The rule is set out in Missouri Pacific Railroad Company, Thompson, Trustee v. Williams, 201 Ark. 895, 148 S.W. 2d 644. There quoting from A.L.N., we said: * * The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required. ’ # * *
Of course, a few individuals or companies might receive some benefit from the granting of a certificate ... but the benefit that might accrue in these isolated cases is not what is meant by the term ‘public convenience and necessity.’ ”

In the still more recent case of Fisher v. Branscum, 243 Ark. 536, 420 S.W. 2d 882, we said:

‘ ‘ In weighing the evidence, we do not substitute our judgment for that of the Commerce Commission. We will accord due deference to the Commission’s findings because of its peculiar competence to pass upon the fact questions involved and because of its advantage in seeing and hearing the witnesses during the full hearing.”

Prom our examination of the entire record in this case, avo are unable to say that the findings of the Commission and its order entered tliereon, were against the weight of the evidence. The judgment of the trial court is affirmed.

Affirmed.


author: Conley Byrd, Justice.

text:
    Willis T. Untiedt v. St. Louis Southwestern Railway Co.
    5-4893
    440 S.W. 2d 251
    Opinion Delivered May 12, 1969

      Terral, Rawlings, Matthevvs & Purtle for appellant.

      Coleman, Gantt, Ramsay & Cox for appellee.
   Conley Byrd, Justice.

Appellant Willis T. Untiedt sued St. Louis Southwestern Railway Co. for the dam.ages. .that, occurred to his tandem lowboy truck after it became trapped .on the railroad tracks at the Highway 88 crossing in Altheimer. The trial court directed a verdict for the railroad. Untiedt for reversal claims that there was sufficient evidence to take the' case to the jury on the failure to keep a lookout and the statutory duty of the railway company to maintain the approaches to its tracks at the crossing.

The appellee’s tracks in the City of Altheimer run from southwest to northeast. Its trains are controlled -by a •■dispatcher in Pine Bluff through the use of signal blocks. A train from Pine Bluff approaching Altheimer commences to blow its horn at the Cotton Center crossing described as being 15 pole lengths from the Highway •88- crossing. A pole length is 176 feet. The signal block controlling north bound trains is 10 pole lengths or 1760 feet southwest of the highway crossing. The highway over which Untiedt was routed-with his permit load in the city of Altheimer paralled the railroad track, on the north side, from west to east commencing at Olive Street past Chestnut Street; Main Street and on to Ed-line Street. The railway depot is located between Main •and Edline Streets on the north side of the railroad tracks between the highway and the tracks.

Untiedt and two other tractor lowboy rigs were hauling experimental cotton-picking machines from Santa .Bosa, Texas, to the-John Deere place in Altheimer. When they reached Altheimer, the three units were parked beside the highway near the depot while the lead driver sought .information about their destination. The lead vehicle and Untiedt’s vehicle parked between Main.Street and the Highway 88 crossing. The driver of the third vehicle'.parked parallel with the highway between Chestnut Street and Main Street, at the western edge of Main Street.-' ■ • The third truck remained at this position during the collision involved here. After the lead driver obtained his information, he pulled up and made a right turn across the Highway 88 crossing. The lead driver had no difficulty crossing the tracks. When. Untiedt pulled up to make his right turn across the tracks the lowhoy he was pulling became stuck on a hump or hogsbaek or rise in the approach to the crossing, trapping Untiedt’s truck on the tracks so that he could go neither forward or backward.

Untiedt testified that the first thing he did when he got out of his truck and saw what was wrong was to go around the truck and right over to the depot. lie estimates that about 15 minutes elapsed from the time he became stuck until the collision. On direct examination he stated that he was in the depot from 5 to 10 minutes and on cross examination says that it could be anywhere from 2 to 6 minutes. He had left the depot and was standing outside when the train struck his truck. When asked, on direct, what Ralph Oratin, the driver of the number three truck was doing, Untiedt stated: ■

“A. Well, he went out on the track and went down the track to see if lie knew what was wrong, he knew what was going on, he could see it and lie went out on this track and down the track.a short distance and waved his arms and tried to wave this help to get this train stopped.
“Q. In any event he was going down the track waving his arms!
“A. Right.
“Q. Now where was he with reference to this, was he on the Pine Bluff side of this building here or was he between the building and highway 88!
“A. No, he was down towards Pine Bluff just about a block, well, I don’t know if it would be a block, it would be a long block from the crossing where I was to the next crossing towards Pine Bluff.
“Q. Towards which the train was coining. In any event, you say he would be on the Pine Bluff side of the depot?
‘ ‘ A. Eight.
“Q. All right, now from the Pine Bluff side of this depot, Mr. Untiedt, and looking down towards Pine Bluff what distance down that wajr could you see a train coming?
“A. Well, you could see a train coming from where he was quite a distance down.
“Q. Now what would you classify as quite a distance ?
“A. Well, I don’t know, maybe a couple of miles, maybe two or three.”

Untiedt says that the front of the train stopped within a 100 to 150 feet past the point of impact. On cross examination Untiedt testified:

‘ ‘ Q. Where was the second, actually the third truck driver, where was he located at that time?
“A. Approximately a block down the street by the next crossing, just say he was parked to enter the next crossing.
“Q. He hadn’t started up to follow you?
“A. No. no, when I went around I headed, I went to the depot and at the same time evidently he went on the track because when I come out of the depot, (interrupted)
“Q.- You didn’t see him what he did?
“Mr. Rawlings; Let him finish answering the question Mr. Lile before you interrupt him.
“A. Because when I came out of the depot he was down there on the track, he was going down the track. I couldn’t see him when I was in the depot.
‘ ‘ Q. Okay, how many minutes would you say elapsed from the time you first got hung up and when you went into the depot?
“A. Oh, it wasn’t but a few, just long enough to walk down there.
“Q. I believe you stated on direct examination that the overall time, from the time that you got hung up until you were coming out of the depot was about fifteen minutes?
“A. Approximately, yes.
“Q. Is that correct?
“A. That’s right.
“Q. And you said you were in the depot from five to ten minutes, I’m not sure?
“A. Well, it could have been. It could have been two, it could have been six. Whatever it took long enough for him to call down there and him go, we got out of the depot.
“Q. But overall it took about fifteen minutes?
“A. Well, approximately, I mean I didn’t time it.
“Q. You really don’t know exactly what the third truck driver did after you got hung up did you? You didn’t see him in his truck or his truck wasn’t moving was it?
“A. No. It was parked.”

Arden Yasser, a witness called out of turn by the railroad estimated that the train went a car and a half or two cars after it hit Untiedt’s truck. At this point in the trial, Untiedt introduced the railroad company’s answer to his interrogatories as follows:

“Q. Now during the past fifteen years, state the dates and owners thereof of all vehicles which were hung while down Highway 88 at this crossing mentioned in plaintiff’s complaint.
“Answer: September 10, 1964, S. P. Conners. September 2, 1966 Willis Untiedt.
“Q. No. 10. State where the train station at Altheinier is located with reference to the crossing mentioned in plaintiff’s complaint.
“Answer: North edge of Station is 215 feet South of crossing.
“Q. State the name and address of all employees of St. Louis Southwestern Bailway Lines who were working in or near this station at the time of the collision mentioned in plaintiff’s complaint.
“Answer: L. K. Baker, 1115 Pine Street, Pine Bluff, Arkansas.
“Q. State what was done by such employees to warn the approaching train that plaintiff’s truck was hung on the crossing.
“Answer: The operator of the vehicle, Willis Untiedt, informed the Belief Agent, L. K. Baker. tliat his trailer was hung up in the street with the tractor fouling the track, and Mr. Baker telephoned the Chief Dispatcher in Pine Bluff, who advised him that a North bound train was closely approaching the Altheimer station. The Chief Dispatcher informed Mr. Baker that the North bound train had already passed the last signal and the train crew could not be warned by signals of the existing condition at the crossing. Therefore, Mr. Baker started running in the direction of the approaching train, waiving a red flag in an effort to stop the train short of the crossing.
‘ Q. State the speed of the train at the time it struck plaintiff’s truck.
‘ Answer: Approximately 3 to 5 miles per hour.
‘ Q. How far was such train from the crossing when its brakes were applied?
1 Answer: Approximately 800 feet.
‘Q. Was the emergency brakes applied?
‘Answer: Yes.
‘Q. Who applied the brakes and what is his title?
‘Answer: E. P. Shanafelt, Locomotive Engineer.
‘Q. For what distance could the employees of the train see the crossing and plaintiff’s truck prior to the collision?
‘Answer: Approximately 700 feet.
‘0. What obstruction or obstructions prevents from seeing further down the track?
“Answer: A1 thornier depot.”

Mr. Ernest Johnson the fireman testified that the train consisted of 112 or 115 cars and that he was sitting in the fireman’s seat on the left hand side. The train commenced to blow its whistle at the Cotton Center crossing some 15 pole lengths from the highway crossing. When the train reached the section foreman’s house, 9 pole lengths from the highway crossing, he saw somebody running up the track waving his arms. At this point ho could not see the highway crossing because of the depot. He says the emergency brakes were applied at a point 8 pole lengths west of the crossing at a time when the train was running at a speed of 45 miles per hour (66 ft. pei- second). He estimated the speed of the train at tlie time of collision to be 5 miles per hour. He said, “I thought we was going to get stopped but we didn’t quite make it”. Mr. Johnson testified that the first time he saw Ealph Cratin, Cratin was at a point near Olive Street running down the railroad tracks waving his arms (approximately 500 feet west of the Main Street crossing). He says there was a gradual curve in the railroad starting about the point where he saw Cratin. On cross-examination he said you could see a person a half mile clear enough to distinguish a man from a woman or child and that a person running was much more easily seen than a person standing still.

Exhibit No. 7, a plat of the Altheimer station, indicates that the tracks are relatively straight from the Cotton Center crossing to a point some 200 feet east of the place where Johnson says he saw Cratin, and only a gradual curve from that point to the depot.

In Lovegrove v. Missouri Pacific Railroad Co., 245 Ark. 1021, 436 S.W. 2d 798 (1969), we held:

“When the asserted negligence is a failure to keep a constant lookout the carrier is entitled to a directed verdict if the undisputed testimony of the train crow shows that such a lookout was being kept. St. Louis-San Francisco Ry. v. Spencer, 231 Ark. 221, 328 S.W. 2d 858 (1959). But the jury may disregard the crew’s testimony when it is inconsistent within itself or contrary to other accepted testimony in the case. Railway Co. v. Chambliss, 54 Ark. 214, 15 S.W. 469 (1891).

In this case too, Johnson testified that he was keeping a proper lookout but when his testimony is considered in connection with the plat and testimony of the other witnesses we find that a jury question was made ou the lookout issue. Untiedt testified that a person from (Vatin's position, that is, west of the depot., could see a train for two miles. Johnson did not testify that he saw (Vatin when he first came on the track or that there was any obstruction to prevent him from seeing him a few seconds prior to the time that he actually observed him. When wTe consider that the train was traveling at a speed of 66 feet per second, and that it. only lacked a 100 or 150 feel of being stopped in time to avoid the collision, we find that under the circumstances there was sufficient evidence to go to the jury on the issue of whether a proper lookout was being maintained. This is particularly true in a case such as this where (Vatin had to be on the tracks or in the vicinity thereof for a period in excess of 10 seconds to have run to the point described by the fireman. For this reason we hold that the trial court was in error in directing a verdict for the railroad.

We find no merit in Untiedt’s contention that the railroad had a duty to maintain the highway approaches to the railroad tracks. To support his contention, Untiedt relied upon Ark. Stat. Ann. § 73-614 (Repl. 1957) and St. Louis, Iron Mt. & Southern Railway Co. v. Smith, 118 Ark. 72, 175 S.W. 415 (1915) and Payne v. Stockton, 147 Ark. 598, 229 S.W. 44 (1921). However, by the Acts of 1929, No. 65 § 59, an Act to Amend and Codify the Laws Relating to State Highways (Ark. Stat. Ann. § 76-517 [Repl. 1957]), it was provided:

“It shall be the duty of the members of the Highway Commission and of the State Highway Engineers, on all trips in the State to particularly observe crossings of railroads on State highways, and it shall be the duty of all railroad companies and the owners of tramroads whose lines intersect or cross any of the highways of the Slate to improve that part of the roadway between their tracks and to the end of the cross ties on each side with the same material (wherever practicable), with the same foundation and surface as that in the adjoining portions of the roadway and to maintain such crossings in a good .state of repair, and said Highway Commission shall have power and authority to require any and all railway companies to build and construct- roads under their tracks at such crossings as in the judgment of the Commission will be for the best and safest interest of the traveling public.* * *”

As we interpret this statute it limits the duty of all railway companies whose lines intersect or cross any of the highways of the state to improve all of that part of the roadway between their tracks and to the end of the cross ties on each side and relieves them from any duty of maintenance beyond the end of the cross ties.

Reversed and remanded.


text:
    Clarence Bailey v. Ford Motor Company
    5-4932
    440 S.W. 2d 238
    Opinion Delivered May 12, 1969

      Alonzo D. Camp for appellant.

      Griffin Smith for appellee.
   Conley Byrd, Justice.

Appellant Clarence Bailey through his trustee in bankruptcy brought this action against appellee Ford Motor Company upon the theory that Ford breached an implied warranty of fitness in the sale of a 1967 Ford automobile. Ford generally denied all the allegations of the complaint and specifically set up a statutory disclaimer of liability for an implied warranty. A jury found the issues in favor of Ford Motor Company. On this appeal, appellant, pursuant to Ark. Stat. Ann. § 27-2127.2 (Repl. 1962), designates the following as the record on appeal: (1) all pleadings, (2) all instructions, (3) all exceptions to instructions, (4) the judgment on the verdict, (5) notice of appeal, and (6) designation of record. For reversal appellant, relies upon the following points:

“1. The Court erred in failing and refusing to submit the case to the jury on the implied warranty doctrine.
“2. The Court erred in failing to void appellee's disclaimer. Appellee should be estopped to now contend a disclaimer defense.
“3. Appellee’s disclaimer was not ‘conspicuous’.
“4. Disclaimers, under the Uniform Commercial Code, are unconstitutional and void. Sec. 85-1-201 (10) of the Code is unconstitutional as a denial of due process and trial by jury. Disclaimers arc inimical to the public good.”

The Uniform Commercial Code, Ark. Stat. Ann. $ 85-2-334 and § 85-2-316 (Add. 1961), provides:

“85-2-314. (1) Unless excluded or modified (Section 2-316 [§ 85-2-316]), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind ...
“(2) Goods to be merchantable must bo at least such as ...
“(c) are fit for the ordinary purposes for which such goods are used;...”
“85-2-316 ... (2) Subject to subsection (3), to exclude or modify the implied warranty of merchantability or any part of it the language must mention merchantability and in case of a writing must be conspicuous, and to exclude or modify any implied warranty of fitness the exclusion must be by a writing and conspicuous. Language to exclude all implied warranties of fitness is sufficient if it states, for example, that ‘There are no warranties which extend beyond the description on the face hereof.’
“(3) Notwithstanding subsection (2)
“(a) unless the circumstances indicate otherwise, all implied warranties are .excluded by expressions like ‘as is,’ ‘with all faults’ or other language which in common understanding calls the buyer’s attention to the exclusion of warranties and makes plain that there is no implied warranty; and . ..
“ (c) an implied warranty can also be excluded or modified by course of dealing or course of performance or usage of trade ...”

In addition to damage instructions, the trial court instructed the jury as follows:

“Plaintiff claims that he purchased a car manufactured by defendant and that it was not reasonably fit for ordinary usage. Plaintiff claims that defendant impliedly warranted or guaranteed the car as being reasonably fit for usage.
“Defendant claims that its warranty or guarantee specifically excluded any implied warranty and that it has observed the warranty fully.
“The warranty has been introduced in evidence.
“If you find that the written warranty was in effect at the time the plaintiff experienced difficulty, you are instructed that it does exclude any implied warranty of fitness and you may find for the defendant.
“If you find the warranty was not in effect, you may find for the plaintiff.
“In determining whether or not the written warranty and warranty disclaimer was in effect you may consider whether or not it was a part of the transaction and/or whether it was subsequently received and ratified by the plaintiff.
“You are instructed that by operation of law, a manufacturer of automobiles impliedly warrants or guarantees to a purchaser that the new automobile is ‘fit for the ordinary purposes for which such automobile is to be used’; however, the law permits a seller to exclude or disclaim an implied warranty and defendant has properly excluded any implied warranty by language in tlie warranty. The question for you to decide is whether the defendant’s written warranty was in effect at the time of this transaction.”

Two of the instructions requested by appellant and refused by the trial court are as follows:

“You are instructed that by operation of law, a manufacturer of automobiles impliedly warrants or guarantees to a purchaser that the new automobile is ‘fit for the ordinary purposes for which such automobile is to be used.’
‘ ‘ You are instructed that under the law, a manufacturer has a legal right to modify or exclude altogether the statutory implied warranty of fitness of his product. To do so, however, the manufacturer must put its exclusionary language in writing, and the exclusionary language must be conspicuous.”

POINT 1. In Kimery v. Shockley, 226 Ark. 437, 290 S.W. 2d 442 (1956), we had before us an abbreviated record. We there said, “When error appears in a record shortened without objection we are not to presume that ihe judgment is supported by the omitted matter, Ark. Stat. Ann. § 27-2127.6 (1947); but it goes without saying that when the abbreviated record is free from apparent-error we cannot assume that the omitted matter would require a reversal of the judgment.”

The abbreviated record here consists of only the complaint alleging an implied warranty, an answer specifically setting up a statutory disclaimer of the implied warranty, the instructions and the judgment incorporating the jury verdict. Since the instructions given by the court were permissible within the pleadings and are not inherently erroneous, there is no basis for us to say that the trial court erred in giving the instructions. For the same reason the appellant has failed to demonstrate error oil the part of the trial court in refusing the instructions requested by appellant.

POINT 2. Appellant argues that the Ford Motor Company should now be estopped to contend a disclaimer defense because Ford objected to the court’s instructions on the basis that they did not permit the jury to determine whether the car was reasonably fit for use. AAA find this contention to be without merit. The objection is not inconsistent with Ford’s theory of disclaimer. Furthermore, appellant made no such., contention before the trial court.

POINT 3. Appellant argues that Ark. Stat. Ann. § 85-2-316 (Add. 1961) requires a manufacturer to use conspicuous print in its disclaimer as a prerequisite to avoiding the liabilities of an implied warranty. AVe find no error for several reasons. In the first place the alleged warranty or disclaimer was not designated as a part of the record. Although a booklet entitled “1967 Ford” and marked “defendant’s exhibit 1” is attached to the record, the alleged disclaimer has not been abstracted. Further, Ark. Stat. Ann. § 85-2-316 provides that implied warranties are excluded by language or expressions which in common understanding call the buytv’s attention to the exclusion of warranties and make plain that there is no implied warranty and that an implied warranty can also be excluded or modified by course of dealings or course of performance or usage of trade. Therefore we are unable to say that appellant has demonstrated error by the trial court in instructing the jury that the defendant had excluded any implied warranty by the language in the warranty.

POINT 4. Appellant argues that Ark. Stat. Ann. § 85-1-201 (10) (Add. 1961) is unconstitutional in that it deprived him of a jury trial on the fact issue of whether or not the provisions of the disclaimer were conspicuous. Appellant did not raise the constitutional issue in the trial court. Constitutional questions cannot be raised for the first time on appeal. See North Hills Memorial Gardens v. Simpson, 238 Ark. 184, 381 S.W. 2d 462 (1964).

Affirmed.


author: Frank Holt, Justice.

text:
    Thomas E. Thacker v. Victor Urban, Superintendent
    5-5402
    440 S.W. 2d 553
    Opinion Delivered May 12, 1969

      M. C. Lewis, Jr. for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Frank Holt, Justice.

This is a proceeding for post-conviction relief under our Criminal Procedure Rule No. 1. The petitioner, now the appellant, asks that his sentence be vacated and that he be set free. He was sentenced in January 1966 to a term of five years in the state penitentiary upon a plea of guilty to the alleged crime of robbery.

In February 3968 the appellant filed a writ of habeas corpus which the present trial court promptly treated as a petition for post-conviction relief. The court appointed his present counsel who filed an amended petition in appellant’s behalf. Subsequently, the court overruled and denied appellant’s motion to set aside the denial of appellant’s petition for post-conviction relief and accord appellant a new trial. This appeal followed.

The issues on appeal “involve constitutional grounds including violation of rights, violation of due process, failure to advise of charge on which arrested, failure to advise of rights, denial of rights to bond, failure to have an attorney appointed to represent Mm or to be represented in competent fashion, and bias and prejudice of the original Judge, P. E. Dobbs.” The present trial judge (who did not preside at the original trial), conducted a fair and extensive hearing on appellant’s petition and also upon Ms motion for a new trial following denial of the petition. The court rendered a comprehensive and thorough opinion in the form of findings of fact and conclusions of law in denying appellant the relief he sought.

■ Appellant first asserts that cine process was denied to him because he was never told for what charge he was being arrested and was never advised of his rights. We do not agree. There was evidence for the trial court to consider that upon being arrested with his codefendant, a brother-in-law, both were identified by the victim as having committed the alleged robbery. Furthermore, on Decembm 1, 1965, the day of his arresi, be was charged by information and accused of the alleged offense of robbery and bail was set. He had the benefit of counsel and never raised this issue at any stage until he initiated this proceeding. He was arraigned and pleaded not guilty on December 6, 1965, with counsel present, and on January 3, 1966 he pleaded guilty with the same counsel representing him, receiving a five-year sentence, along with his brother-in-law and codefendant.

Next appellant argues that he in effect was denied the right to bail or the right to make bond by Judge Dobbs, the then presiding judge. The bench warrant reflects that appellant’s bond was set at $4,000 on December 1, 1965. Appellant contends that he could not make bail because Judge Dobbs threatened to raise it if he tried to make bail. This assertion was contradicted and denied by Judge Dobbs and according to the record, the bond remained the same as originally set.

Appellant contends that “he was denied due process aud deprived of a fair trial in that he never retained counsel, none was appointed for him, he never accepted the services of an attorney, and he was not given effective, adequate, and competent legal representation.” The evidence and record are amply sufficient to sustain the trial court’s findings to the contrary. The appellant appeared with his codefendant for arraignment before the court on December 6, 1965. Senator Q. Byrum Hurst appeared with appellant and entered a plea of not guilty to the charge of robbery on behalf of appellant and his codefendant. Again, on January 3, 1966, the appellant appeared in open court with Senator Hurst who asked permission of the court to change appellant’s plea of not guilty to a plea of guilty to the charge of robbery. Upon the recommendation of the prosecuting attorney, the plea of guilty was accepted and appellant and his codefendant each received a sentence of five years in the state penitentiary on the robbery charge.

There is no evidence that appellant ever indicated during these proceedings that Senator Iiurst was not representing him or that his counsel was not satisfactory or that he desired the appointment of counsel. Senator Hurst, who has approximately thirty years experience as a trial lawyer, was retained to represent these defendants by their families the day before their arraignment. He was known to both families for several years and had previously represented some of them. A few days following their arraignment, the mothers of both defendants made a substantial payment on his fee to represent the defendants. His copies of the receipts were introduced into evidence. There was evidence that he conferred with the appellant several times. Senator Hurst testified that his efforts were directed mainly toward working out an acceptable sentence on a plea of guilty. The state desired a 12-vear sentence. The defendants’ counsel asked for a 5-year sentence with 2 years suspended. After conferences with the prosecuting attorney, it was agreed that the state would recommend a 5-year sentence for appellant and his codefendant upon a plea of guilty. It appears that this was a reluctant agreement on the part of the state as to the appellant because he had three previous felony convictions. These consisted of burglary, forgery and uttering, and theft. His codefendant had none. As was the custom, the trial court accepted the prosecuting attorney’s recommendation in assessing the recommended sentences.

The record reflects that appellant’s retained counsel continued to follow his case with interest, writing letters in his behalf to appropriate officials. Further, upon appellant’s commitment to the penitentiary, a document reflecting his personal history and signed by him shows that the name and address of his attorney was “Q. By nun Hurst, Hot Springs, Ark.”. The document further reflects:

“Brief History of Crime: (inmate’s version) * * * He and accomplice robbed a WM (Robert Clairdy) on the Street in Hot Springs, Ark. taking about $250.00 from said man. Subject states that he was arrested same day by the City Police of Hoi Springs, Ark., due to information from unknown party who saw said act. Subject was charged with Robber;/, and went to court and entered a Plea of Guilty to said charge and received a Sentence of Five (5) Yrs. to be served.

Also, we find in the record letters from appellant to Senator Hurst acknowledging him as his attorney and asking his continued assistance.

We agree there was sufficient evidence for the court to find that:

“ [T]he following facts were substantiated by the evidence adduced at the hearing: that petitioner was sufficiently and properly warned of his constitutional rights at all critical stages in the proceedings. That the petitioner had the advice and assistance of a competent attorney. That petitioner was sufficiently advised of the charge against him. That, upon entering the not guilty plea, defense counsel indicated a' need for time within which to discuss the case with the petitioner. That the time lapse between petitioner’s arrest and arraignment was reasonable. That the time lapse between the date of the not guilty plea and the date on which the plea was changed to guilty was reasonable.”

In Thornton v. State, 243 Ark. 829, 422 S.W. 2d 852 (1968), we said:

* * * Until the contrary is shown, we will assume that a person who appears in court with an attorney of his choice has ample opportunity' to understand when he has entered a plea of guilty and the consequences thereof.”

The crime of robbery is punishable by a sentence of three to twenty-one years. Ark. Stat. Ann. § 41-3602 (Repl. 1964). The appellant is 27 years of age and .has experienced three felony convictions before this alleged crime. It appears that appellant had the benefit of effective, adequate, and competent legal representation.

Appellant next asserts that because of the bias and prejudice on the part of Judge Dobbs, the then presiding judge, appellant was denied due process and deprived of a fair trial. According to the appellant’s evidence, the presiding judge refused to permit him to make bail; “promised” him 21 years if he asked for a jury trial; failed and refused to accept and file an earlier petition for writ of habeas corpus mailed to him by appellant; instructed prison authorities who transported appellant to the penitentiary to corporally punish him; and thereafter wrote a letter to the same effect to the prison officials. A photocopy of this letter was presented as a basis for appellant’s motion to set aside the denial of appellant’s petition and accord him a new trial. All of this was refuted by Judge Dobbs and the letter termed a forgery. There was evidence that after the appellant had been in the penitentiary a few months he was given a furlough to see his dying grandmother at the request of Judge Dobbs who also instructed that a $2,000 bond by appellant’s mother would be sufficient. Appellant testified that Judge Dobbs told him he did not have to return to the. penitentiary following his furlough'. This was also denied by Judge Dobbs. The present trial judge’s findings on these issues are based upon and supported bv sufficient evidence.

Appellant argues that a combination of these factors violated his constitutional rights and, thus, the court erroneously denied appellant’s amended petition for a writ of habeas corpus and further, erred in refusing his motion for a new trial thereby setting aside the denial of appellant’s petition. We do not agree. Wo think the trial court scrupulously observed and complied with the provisions of our Criminal Procedure Rule No. 1. This rule does not permit the holding of a second trial within itself. Rather, it exists for the purpose of providing “a method for determining, after the filing of aii appropriate petition, whether any constitutional requirements or statutory enactments, either federal or state, relative to the rights of an accused, have been violated, or whether the sentence is otherwise subject to a collateral attack.” Clark v. State, 242 Ark. 584, 414 S.W. 2d 601 (1967).

In Orman v. Bishop, 245 Ark. 887, 435 S.W. 2d 91 (1968), it was urged that the trial court was biased and prejudiced and that through fear appellant acquiesced in a plea of guilty. There we said:

“If Orman feared a 105-year sentence, his fear was induced by his own knowledge of the hazards involved and not by any coercion by the trial judge. ’ ’

Similarly, in the case at bar we think that in view of appellant’s age and his experience with the criminal courts, any fear he had was induced by his own knowledge and experience rather than any bias, threats and prejudice of the presiding trial judge. It appears that the sentence appellant received upon a plea of guilty was based upon the efforts of competent counsel and the prosecuting attorney’s recommendation which the court accepted.

After a full and complete canvass of the record in the case at bar, we are of the view that there is sufficient evidence to sustain the trial court’s action in refusing to vacate appellant’s sentence and to give the relief he sought and, further, that in none of the proceedings was there any violation of appellant’s constitutional rights.

Affirmed.


text:
    Roger Dean Mosby & Albert Norris Williamson v. State of Arkansas
    5-5391
    440 S.W. 2d 230
    Opinion Delivered May 12, 1969

      John W. Cole and George Howard, Jr. for.appellants.

      Joe Piirrcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee,
   Frank Holt, Justice.

The appellants were jointly charged by information with the crime of first degree murder wliilc in perpetration of robbery. Upon a joint trial, a jury found each guilty and death sentences were assessed. Upon appeal numerous assignments of error are made by each appellant for reversal. Appellant Mosby’s present counsel was appointed midway in the trial to assist in his defense. ■ This occurred when there arose a conflict of interests between the appellants. Both were then being represented by the same lawyer. Appellant Williamson’s appellate counsel did not participate in the trial.

The victim of the alleged crime was Ronald E. Lovelace, a taxicab driver for the Yellow Cab Company of Little Rock, Arkansas. He disappeared on the night of June 3, 1968. On June 10th his body was discovered about two miles from the location of his abandoned cab which he had been driving the night of his disappearance. The investigation of the crime resulted in the apprehension, trial and conviction of the appellants.

In a capital case wm are required to consider every objection made during the trial. Ark. Stat. Ann. § 43-2723 (Repl. 1964); Harris v. State, 238 Ark. 780, 384 S.W. 2d 4.77 (1964); Hays v. State, 230 Ark. 731, 324 S.W. 2d 520 (1959). One of appellants’ objections relates to the giving of an instruction with, reference to the fact that neither of the two accused appellants took the witness stand during the joint trial. The court gave the familiar or somewhat standard instruction that:

“A defendant may or may not testify in a case at his own discretion. The fact that a defendant did not testify is not evidence of his guilt or innocence and in fact is no evidence at all and is not to be considered by you in arriving at your verdict.”

In the recent case of Russell v. State, 240 Ark. 97, 398 S.W. 2d 213 (1966), we reversed a conviction where a similar procedure occurred. There we said:

* * * When the accused asks that such a charge be given if is reversible error for the court to deny tlie request. Cox v. State, 173 Ark. 1115, 295 S.W. 29 (1927). When, however, the accused objects to such an instruction, a different situation is presented. Our decisions on the point have not been entirely harmonious. We held in Watson v. State, 159 Ark. 628, 252 S.W. 582 (1923), that the giving of the instruction was prejudicial error, but we took the opposite view in Thompson v. State, 205 Ark. 1040, 172 S.W. 2d 234 (1943). Upon reconsidering the question we have concluded that the instruction ought not to be given against the wishes of the defendant. If the accused is to have the unfettered right to testify or not to testify he should have a correlative right to say whether or not his silence should be singled out for the jury’s attention.”

Therefore, we must hold that in the circumstances the giving of this instruction, to which appellants objected, constituted prejudicial error.

The appellants further urge for reversal that it was prejudicial error to admit in evidence appellants’ admissions in which each made statements and accusations against the other. According to their admissions, which were related to the jury, each appellant admitted being-present and participating in the robbery of Lovelace. The jury was told, however, that each confessor denied the murder and accused the other of actually' killing Lovelace following the robbery. The state argues that this variance of cross-implication is permissible because the distinction between an accessory and principal has been abolished and the accessory is equally as guilty of a crime as is his principal. Ark. Stat. Ann. § 41-118 (Repl. 1964); Lauderdale v. State, 233 Ark. 96, 343 S.W. 2d 422 (1961).

Therefore, the state contends that since both the appellants confessed their complicity1- in the robbery-murder and the only difference in the two confessions being that one accused the other of the actual stabbing, no prejudicial error resulted from the introduction of their .confessions implicating each other. The trial court carefully instructed the jury that the admission of one . declarant could. not be considered as evidence against his codefendant. The state cites and relies upon People v. De Vine, 293 N.Y.S. 2d 691, 57 Misc. 2d 862 (1968). There the harmless error doctrine was applied.

In view of a retrial, we deem it necessary to call attention to the recent cases of Britton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) and Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100. (1968). It now appears that the use of the cross- - implicating confessions in the case at bar is not permissible in a joint trial because of being in violation of the confrontation clause of the federal Sixth Amendment. The answer-to- the problem seems to be to delete any offending portions of the admissions with reference to a codefendant, if such deletion- is feasible and can be done without prejudice, or to grant separate trials. See dis- ■ senting' opinion of Mi1. Justice White in Bruton, supra. In Arkansas a separate trial, if requested, is mandatory in capital cases. Ark. Stat. Ann. § 43-1802 (Repl. 1964). Therefore, upon a retrial this problem of cross-implieat:-ing confessions would not arise if a separate trial is requested.

The appellants- separately argue other points for reversal.' Since we do-not consider that-they are likely to occur on a retrial, we deem it unnecessary to discuss them.

K-eversed and remanded.

Bybd, J., not participating.