author: John A. Fogleman, Chief Justice.

text:
    Doris MIKEL v. THE DEVELOPMENT COMPANY, INC.
    CA 80-83
    602 S.W. 2d 630
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980
    Rehearing denied August 25, 1980

      Martin, Vater, & Karr, by: Charles Karr, for appellant.

      Harper, Young, & Smith, by: S. Walton Maurras, for appellee.
   John A. Fogleman, Chief Justice.

The real issue on this appeal is whether the finding of the chancery court that appellant’s use of a tract of land of which appellee was the holder of the record title was not sufficient to constitute adverse possession for more than the statutory period of seven years was clearly against the preponderance of the evidence. We find that it was not and affirm the chancery court’s decree.

We need not go into elaborate detail with reference to the use of the tract by appellant. She and her husband acquired property at 1920 Waldron in Fort Smith in 1965. The dwelling house in which they thereafter resided was located on this property. Mrs. Mikel continued to live there after the death of her husband, Lyman Mikel, a Fort Smith attorney, in 1967. The tract in dispute is that part of Tract A of Brookwood Addition, which lies south of a drainage creek called Sunnymede Creek. It is a triangular tract immediately adjacent to the Mikel property. That part of Tract A north of the drainage canal had been divided into lots in 1963 and sold by appellee. Thereafter the portion of Tract A lying south of the drainage creek was omitted from the tax books until 1977. The tract involved here was offered for sale at one time prior to 1966 but never sold. At the time the Mikels moved onto the property they purchased, the part of Tract A adjacent to their lot was grown up in weeds and bushes. They commenced clearing it, planted flowers which bloom every year and maintained it just as they did their own yard. No effort has ever been made by appellee to develop or improve it. When the city commenced a project for channelization of Sunnymede Creek, Lawrence Wewers, right-of-way agent for Fort Smith, began determining the identity of owners of land adjoining the creek in order to acquire right-of-way. When he was unable to find this property listed on the tax books, he went to an abstract office to ascertain the ownership. At that time he saw appellant, asked her about the ownership of the land and told her that the city was going to take it. Not long thereafter, appellant instituted this action against appellee seeking to quiet her title to the tract on the basis that she had been in open, actual, notorious, continuous and hostile possession with the intent to hold it adversely and in derogation of appellee and all others.

Appellant first seeks to reverse the decree of the chancery court on the ground that appellee had abandoned the property. This contention is based upon the argument that the chancellor should have held that there had been an abandonment, because of the unsuitability of the tract for development due to its limited size, triangular shape, bisection by a sewer line, and of the failure of appellee to pay taxes or list the property for taxation or maintain it, coupled with the activities of appellant on the property consisting of cutting weeds, mowing the grass, planting flowers, removing dead trees and debris, causing dirt to be hauled in to fill holes and ruts, and other such activities.

The only allegations in appellant’s complaint that could have related to the issue of abandonment were those relating to appellee’s ceasing to pay taxes and failing to report its ownership to the tax assessor. Although failure to pay taxes is evidence tending to show abandonment of real estate, it is not alone sufficient to prove abandonment. Gill v. Dunn, 196 Ark. 1178, 116 S.W. 2d 612. Thus, these allegations were not sufficient to raise the issue of abandonment and, since it was not otherwise raised in the trial court, we do not consider it on appeal.

Appellant also contends that the chancellor erred in refusing to strike the testimony of George Carney, president of appellee, that he gave Lyman Mikel permission to use the property in return for Mikel’s promise to keep the property clean. Carney was called as a witness by appellant. During direct examination the following questions were asked and answers given:

Q. Have you ever since May the 31st of 1963 caused The Development Company to have anyone go out and cut the grass on this property?
A. It is . . . to the best of my knowledge and belief when we were developing the seven (7) lots north of the creek, for a short period of time in there we tried to maintain that small area south of the creek to some extent, not certainly as a mowed lot, but we tried to keep a certain amount of the weeds down.
Q. Okay, how long did that continue?
A. It continued until Mr. Mikel took over maintenance of the lot with my permission.
Q. And about when .was that?
A. That would have been shortly after they acquired their house, I presume. It had to be between 1965 when they bought their .house and when he died.

On cross-examination Carney was asked what the arrangement with Mikel was. He related that Mikel called him and wanted to know if he (Mikel) could keep the property mowed, clean it up and use it for his kids to play on and his wife to plant flowers on. Carney said that he stipulated that Mikel was not to put any improvements on the property of a permanent nature or erect any fences on it. Carney was then asked whether Mikel, during his lifetime, kept his end of the agreement, and whether, after Mikel’s death, the property continued to be used and the terms of the agreement met by Mikel’s family; he answered both inquiries in the affirmative. In response to the inquiry as to when he first had any notice or knowledge that Mrs. Mikel or any other member of her family was claiming any ownership or interest in the property, Carney said that it was when the tax assessor’s office called him in late 197-7 or early 1978 and advised him that Mrs. Mikel was attempting to assess the property in her name. On redirect examination appellant’s attorney examined Carney extensively about his failure to make any written memorandum or notation about the agreement or to write a letter to Mik.el, and brought out the fact that Carney had never discussed this agreement with Mrs. Mikel or talked with her about permissive use.

After Carney testified, appellant rested and appellee called two witnesses. After they had testified, appellee recalled Carney for the sole purpose of introducing five photographs of the property which had been taken by Carney. Appellee then rested.

Appellant filed a motion to strike the testimony of Carney that he had given with reference to permission he gave Lyman Mikel to use the tract in dispute. The grounds for the motion were:

1. The testimony was elicited by cross-examination beyond the scope of direct examination.
2. If given in response to a question on direct examination, the testimony was not responsive to the question.
3. The claim of permissive use was a matter constituting an affirmative defense which was not pleaded by appellee as required by Rule 8 (c), Arkansas Rules of Civil Procedure or Ark. Stat. Ann. § 27-1121 (Repl. 1962).
4. The testimony should have been excluded under the Statute of Frauds set out in Ark. Stat. Ann. § 38-101.
5. The testimony was hearsay as a statement by Carney other than one made by him while testifying at the trial and offered to prove the truth of the matter asserted.
6. The testimony was incompetent under the dead man’s statute, set out in Schedule 2 of the Constitution of Arkansas, because it was about a transaction with Lyman Mikel, who is deceased.

Only after Carney had been recalled to identify the photographs had appellant’s attorney made any objection to the testimony of Carney on the subject of permissive use. He had then moved to strike thé testimony of Carney about conversations that he had with Mikel. The only ground ever stated was that the answer of the witness on direct examination had not been responsive to his question on direct examination. The general objection made was not sufficient to raise any question on any ground not specified. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (1) (Repl. 1979). It was certainly not apparent from the context that any ground other than the lack of responsiveness of the answer was relied upon. It is apparent, however, that this objection did go to the propriety of the cross-examination based upon the allegedly unresponsive answer.

The trial was held on September 5, 1979. It was a week after the chancellor had announced a finding that the use by the Mikels had been permissive that appellant filed her written motion to strike the testimony, setting out the grounds enumerated above.

In the first place, a motion to strike must be timely. Section 28-1001, Rule 103 (a)(1). The granting or denial of a motion to strike the testimony of a witness after he has left the witness stand is a matter lying within the sound judicial discretion of the trial judge, whose exercise of that discretion will be set aside on appeal only when there has been an abuse of discretion. Massey v. Massey, 268 Ark. 351, 596 S.W. 2d 701 (1980). We cannot say that there was an abuse here.

The deadman’s statute was repealed, effective July 1, 1976. Section 2, Act 1143 of 1975. Davis v. Hare, 268 Ark. 818, 561 S.W. 2d 321. George Carney’s testimony about his conversation with Lyman Mikel was not hearsay. The testimony was offered to prove that the statements were made, rather than to prove the truth of the statements. Motors Insurance Corp. v. Lopez, 217 Ark. 203, 229 S.W. 2d 228; Mazo v. Boulet, 220 Ark. 106, 246 S.W. 2d 126. See also, Hight v. Klingesmith, 75 Ark. 218, 87 S.W. 138; Kirby v. Wooten, 132 Ark. 441, 201 S.W. 115.

Testimony about the grant of permission to use the property was not barred by the statute of frauds. Appellant does not specify the sub-section of the statute of frauds upon which she relies. At any rate, this testimony related only to the intent of the parties and the nature of the possession. Even if it be taken to have been directed toward establishing a contract licensing Mikel to use the land, such a contract would not be within the statute of frauds. Montuori v. Bailen, 290 Mass. 72, 194 N.E. 714, 97 ALR 789 (1935). Such an agreement merely excludes acts which would otherwise constitute trespass or be otherwise unlawful. Hodgkins v. Farrington, 150 Mass. 19, 22 N.E. 73 (1889).

Permissive use is not an affirmative defense which must be pleaded specifically under Rule 8(c), Arkansas Rules of Civil Porcedure, or Ark. Stat. Ann. § 27-1121. Appellee specifically denied appellant’s allegations that she had been in hostile possession of the property for more than seven years with the intent to hold it adversely to appellee. The nature of her use and possession was thus put in issue and she bore the burden of proving that it was hostile and adverse and not permissive. Barclay v. Tussey, 259 Ark. 238, 532 S.W. 2d 193; Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W. 2d 569; Alphin v. Blackmon, 180 Ark. 260, 21 S.W. 2d 426; Nicklace v. Dickerson, 65 Ark. 422, 46 S.W. 945. When the testimony of Carney was given, appellant did not plead surprise. The matter of surprise was not mentioned until appellant’s post-trial motion to strike was made. The matter of responsiveness of Carney’s answer to appellant’s question is at least subject to argument. It was, in a sense, responsive. See Thompson v. AAA Lumber Co., 245 Ark. 518, 432 S.W. 2d 873. If it was not, objection should have been made at the time the answer was given. Ark. Stat. Ann. § 28-1001, Rule 103 (a) (1). The trial judge has some discretion in such matters. Arkadelphia Lumber Co. v. Asman, 85 Ark. 568, 107 S.W. 1171. He should be asked to exercise it promptly. No objection was made during or after appellee’s attorney’s cross-examination of Carney about the matter, until the examination of the witness, on recall, had been concluded. The scope and extent of cross-examination lies to a great extent within the discretion of the trial judge. Abel of Arkansas v. Richards, 236 Ark. 281, 365 S.W. 2d 705. We find no abuse here. Furthermore, when appellant’s attorney examined Carney on redirect examination he was precluded from moving to strike the testimony. Montgomery v. First National Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299.

Appellant’s contention that the chancellor’s holding that adverse possession by appellant had not been proven by a preponderance of the evidence was erroneous. She admits that she had the burden of proving that her possession was actual, open, notorious, peaceable, continuous, hostile, and exclusive and accompanied with an intent to hold the property adversely and in derogation of, not in conformity with, the right of the true owner. No useful purpose would be serv,ed by further detailing the- testimony. In addition to those ac-tivities -by the Mikels already mentioned, there was evidence that-appellant had permitted a television cable to be strung across the property, but had refused to permit the city to cut down some trees; she had placed,- and permitted others to place, political signs on the property; her children and others had played on it. Furthermore, some of. Mrs. Mikel’s neighbors thought she owned the tract. The matter of appellant’s intent, however, is subject to question. Mrs. Mikel never assesed the property for taxation. The fact that the property had not been assessed for taxation was called to the attention of the tax assessor in 1978 by the representative of the city who was seeking an easement. It was then that Mrs. Mikel sought to have the property assessed in her name. The testimony of the city’s right-of-way representative also tended to negate an intention on the part of appellant to claim title by adverse possession. As he remembered, when he first asked her who owned the tract of land, she answered that she did not know.

The chancellor obviously believed the testimony of Carney that the use and possession of the questioned tract was permissive in its inception. We cannot say that this finding was clearly against the preponderance of the evidence. One of the primary questions in any case of adverse possession is, “When did the possession become adverse?” Utley v. Ruff, 255 Ark. 824, 502 S.W. 2d 629. If the original use and possession was permissive, it cannot become adverse until notice of the hostility of the possessor’s holding has been brought home to the owner by actual notice or by a holding so open and notorious as to raise a presumption of notice, equivalent to actual notice. Still v. Still, 239 Ark. 685, 394 S.W. 2d 733; Thomas v. Stobaugh, 244 Ark. 787, 427 S.W. 2d 170. The evidence of the adverse holding when the original entry is by permission must be very clear. Minton v. McGowan, 253 Ark. 945, 490 S.W. 2d 136; Dial v. Armstrong, 195 Ark. 621, 113 S.W. 2d 503. The fact that permission was given Lyman Mikel, and not his wife, did not make his wife’s holding after his death adverse, because the presumption'is that the possession of those claiming under him or occupying the land under the agreement with him is also permissive. Thomas v. Stobaugh, supra; Britt v. Berry, 133 Ark. 589, 202 S.W. 830; Fry v. Grismore-Hyman Co., 151 Ark. 44, 235 S.W. 373; Dial v. Armstrong, supra.

Mrs. Mikel never gave appellee express notice that she was claiming adversely to it, and we find nothing in her conduct or use of the property that would have brought any change in the nature of her holding to the attention of appellee until she attempted to assess the tract for taxation.

The decree is affirmed.


source: Caselaw Access Project

author: George Rose Smith, Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Buford MARTIN, d/b/a MARTIN’S MOBILE HOMES v. Lloyd MOORE
    80-105
    601 S.W. 2d 838
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980

      Gardner & Steinsiek, for appellant.

      Vincent E. Skillman, Jr., of Skillman & Durrett, for appellee.
   George Rose Smith, Justice.

Our Constitution, adopted in 1874, provides that all contracts for a greater rate of interest than 10% per annum shall be void as to principal and interest. Art. 19, § 13. The question here is whether the Constitution prohibits the practice, widely used in business transactions, of computing interest on the basis of a 360-day year. The Court of Appeals certified the case to us under Rule 29 (4). We have no hesitancy in holding, for practical, legal, and historical reasons, that the use of the 360-day year is lawful even when the interest rate is 10%.

In four separate transactions the appellant Martin sold mobile homes to the appellee Moore, to be paid for in monthly installments. Some ten years earlier Martin, on the advice of his banker, had obtained a printed chart giving the monthly payments at a 10% interest rate. Unknown to Martin, the chart was based upon a 360-day year, which means that the one-day interest factor is obtained by dividing the interest rate by 360 instead of by 365 or 366. Martin used the chart for ten years and used it in the four sales to Moore. In one, for example, the balance of $4,000, at 10% interest, was to be paid in 36 monthly installments. Martin, using the chart, selected $129.06 as the monthly payment.

When Martin brought this suit upon the four contracts, Moore interposed the defense of usury. The basic facts are stipulated. In addition, Martin testified that after the issue of usury was raised he was able to obtain, with much difficulty, a 365rday schedule of monthly payments. He amended his complaint to ask for judgment on that computation. The chancellor found that Martin had acted in complete good faith, but the chancellor ruled that the contracts were usurious because Martin intended to collect interest at a rate which proved to be more than 10%.

We have not considered this precise question, perhaps because the 360-day year is so uniformly used in the commercial world that no one has thought to question it. In Cagle v. Boyle Mortgage Co., 261 Ark. 437, 549 S.W. 2d 474 (1977), we mentioned the 360-day year, but there the interest was also compounded to produce an annual interest rate of 10.62%, which would have been usurious regardless of the 360-day year. A similar holding was made in First American Nat. Bk. v. McClure Constr. Co., 265 Ark. 792, 581 S.W. 2d 500 (1979).

There is no problem when a contract provides only for annual payments. Annual payments of 10% interest upon a $1,000 debt are obviously $100. All the 360-day interest tables we have been able to find agree on that figure.

The difficulty, with the accompanying need for a standard month, arises when interest payments are to be made not annually but monthly, quarterly, or semiannually. One calendar month may be 28, 29, 30, or 31 days. Three months may be 89, 90, 91, or 92 days. The six months from January through June contain 181 days in an ordinary year, but the remaining six months contain 184 days. It becomes impossible to use what is known as exact-day interest in specifying equal monthly payments. Either the monthly payments must be unequal or a month of standard length must be used.

There is no doubt that simple interest can be computed in several different ways, as we noted in Southland Mobile Home Corp. v. Webster, 263 Ark. 100, 563 S.W. 2d 430 (1978). The four main possibilities are discussed in the Thorndike Encyclopedia of Banking and Financial Tables (1973), p. xiii:

Simple interest may be computed by four different methods. Each gives a different answer. Each is correct. [Our italics.]
They are known by the following:
(1) Ordinary interest.
(2) Exact day interest.
(3) Bank interest, and
(4) Discount.
They differ in the number of days in the interest period and in the number of days assumed to be the basis year. The . basis year is used to compute the interest for one day. [The equation for determining the interest factor is:]
„ , r , n Interest Rate One-day interest [equals] - Basic Year
Ordinary interest counts months and days in the interest period. The basis year is 360 days.
Exact-day interest counts each day in the interest period. The basis year is 365 or 366 days.
Bank interest counts each day in the interest period. The basis year is 360 days.
Discount [is the deduction of interest in advance].

It is explained in Lake’s Monthly Installment and Interest Tables (6th ed., 1970), p. 643, that ordinary interest can be converted to exact-day interest by subtracting l/73rd of the total ordinary interest. (Of course, the difference is 1/7 3rd because the 5 days disregarded in the 360-day year are l/73rd of a 365-day- year.) Thus we are concerned with a difference of l/73rd between ordinary interest and exact-day interest. In the case at bar Moore would have paid a total of $646.16 in ordinary interest upon the $4,000 debt. Had exact-day interest been used the amount of interest would be reduced by $12.96, or 36 cents on each monthly payment of $129.06.

The commercial world adopted the 360-day year as a practical solution to the virtual impossibility of preparing a standard form of contract that would yield 10% interest on an exact-day basis when monthly payments are made. The 360-day year is used for all calculations, whether at 6%, 10%, or 12%; so the intent was not to avoid any usury law. A similar problem was solved when standard time was adopted to avoid the irregularities of solar time. There is nothing novel about striking a reasonable average ás a practical means of reconciling erratic variables.

The framers of our Constitution, in 1874, certainly did not intend to adopt exact-day interest, with all its complications, as an inflexible rule. The General Assembly had already enacted, in 1838, a statute declaring that a 30-day month is to be used in the computation of interest. Ark. Stat. Ann. § 68-605 (Repl. 1979). By the great weight of authority, going back long before 1874, the courts have held that the use of a 360-day year does not result in usury. The cases are collected in an annotation in 35 A.L.R. 2d 842 (1954). A number of courts have specifically approved the use of Rowlett’s Tables, which were based on a 30-day month and a 360-day year. At present, Lake’s book, supra, which we have relied upon in several cases, uses a 360-day year and gives substantially the same monthly payment figure, $129.068, as the appellant used in this case. The Loan Payments Handbook (1974) gives the appellant’s exact figure, $129.07. Since the problem is purely mathematical, any variation among the standard works would be surprising.

We find it impossible to believe that the reference in our Constitution to an interest rate of 10% per annum was intended to prohibit the already familiar device of a 30-day month and a 360-day year, especially in view of the severe penalty of a forfeiture of both principal and interest. Needless to say, we do not imply, by pointing out the slight .difference of l/73rd between ordinary interest and exact-day interest, that there is always a rule of de minimis non curat lex in usury cases. A lender cannot deliberately and expressly contract for 10.01% interest and then insist that the excess above the legal rate is too small to matter. We herely hold that reason, authority, and history all support our interpretation of the language in the Constitution of 1874.

Reversed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the majority opinion. Ten per cent per annum means 10% per year. A year has 365 days, except for a leap year, and no amount of juggling or resorting to rhetoric can change the facts.


author: George Rose Smith, Justice.

text:
    Lonnie Augusta MEADOWS v. STATE of Arkansas
    CR 80-77
    602 S.W. 2d 636
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980
    Rehearing denied August 25, 1980

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

In this prosecution for possession of heroin with intent to deliver, the issue on appeal is the validity of a police search by which Meadows was found to be carrying drugs on his person. At a non-jury trial Meadows was found guilty and sentenced to ten years’ imprisonment. We agree with his insistence that the trial court should have suppressed the evidence produced by the search.

On the evening of February 8, 1978, Meadows and a companion, Rosco Duncan, both black, arrived by plane at the Little Rock airport. Three state policemen, Don Sanders, Bill Bounds, and Dave Johnston, dressed in plain clothes, were watching the alighting passengers in the hope of spotting several white males who were reported to be transporting heroin. When Meadows and Duncan walked past the officers they started looking back, which aroused the officers’ suspicion. Bounds motioned to Sanders to follow the two men. Sanders fell in behind them and followed them through the building at some distance. Both men kept looking back occasionally. Their pace quickened as they went through the terminal, where there were perhos 150 people. After going down an escalator the two men went to a pay telephone booth.

At that point Sanders approached Meadows and identified himself as a policeman. Meadows said, “I knew you were a police officer.” Sanders said he wondered if anything was wrong, and Meadows answered, “No.” Sanders then asked for identification, and Meadows produced his driver’s license. Sanders handed the license to Officer Bounds, who with Officer Johnston had arrived by then. Bounds telephoned the police communications center to check on the two men, but the computer terminal was “down.” Bounds returned the driver’s license to Meadows and told him he could go.

Within moments Bounds was called to the telephone and was told by the communications center that there was a felony warrant out for Meadows, for defrauding a secured creditor. The officers caught up with Meadows and Duncan as they were leaving the airport, arrested Meadows, and searched him, finding heroin which gave rise to this prosecution.

Officer Sanders testified that he did not follow Meadows because he suspected him of any specific crime, but simply because Meadows and Duncan were looking back in a suspicious manner. Officer Bounds testified that the police call such conduct “rubber-necking,” which indicates that the suspect has spotted a police officer and is nervous. The trial judge found that there was nothing at all illegal about what Meadows and Duncan were doing; “It’s obvious to the court that we’ve got some paranoid cops.” Nevertheless, the judge refused to suppress the evidence, on the ground that a police officer is permitted to stop anyone and ask him for identification. On that premise the judge held that the information obtained through Meadows’ driver’s license was not tainted under the poisonous tree doctrine, and the seized drugs were therefore admissible.

We disagree. The main issue is controlled by our Criminal Procedure Rule 3.1, which provides:

A law enforcement officer lawfully present in any place 'may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct.

The rule is meant to furnish police officers with a simple, certain, understandable guide for stopping and detaining suspects. We need not determine whether the rule is more restrictive than the principles to be distilled from various Supreme Court decisions, for of course there is no constitutional objection to a rule of law that provides more protection to individual liberty than the minimum required by the Constitution of the United States.

Here the officer’s sole reason for approaching the two men "was their conduct in looking back and in quickening their pace upon being followed. That conduct, however, could not possibly suggest that Meadows or Duncan had committed or were about to commit any particular type of felony or misdemeanor, which is necessarily what Rule 3.1 refers to. In fact, • Bounds testified that he suspected that Meadows had committed “crime,” but he was unable to be more specific. We must conclude that in the circumstances the officers were not authorized by Rule 3.1 to stop the two men.

The State also argues that Officer Sanders’s request for Meadows’s identification was proper under Rule 2.2, which reads in part:

(a) A law enforcement officer may request any person to furnish information or otherwise cooperate in the investigation or prevention of crime. The officer may request the person to respond to questions, to appear at a police station, or to comply with any other reasonable request. [Italics added.]

We have emphasized the word “otherwise,” because the insertion of that word shows beyond question that the officer’s request for information must be in aid of the investigation or prevention of crime. Here there is nothing in the officers’ testimony to support a belief that Officer Sanders asked Meadows for identification in the course of a criminal investigation. According to the officers’ own statements, their interrogation was of the kind contemplated by Rule 3.1 rather than by Rule 2.2.

It is also argued that Meadows consented to the interrogation by handing over his driver’s license. We have held, however, that consent to an invasion of privacy must be proved by clear and positive testimony — a burden that is not met by showing only acquiescence to a claim of lawful authority. Rodriquez v. State, 262 Ark. 659, 559 S.W. 2d 925 (1978). Nothing more has been shown in this case.

To sum up, if the officers’ conduct in this case is proper, then any law enforcement officer may stop a citizen at any time, without reasonable grounds for suspicion, request identification, and arrest and search the citizen if his identity uncovers an outstanding felony warrant. We need not sift through the Supreme Court’s decisions to find that tribunal’s probable answer to the question presented by this case. Our own Rules of Criminal Procedure unmistakably require that the evidence seized in this case be suppressed.

Reversed.


author: Frank Holt, Justice. George Rose Smith, Justice,

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, INC. v. James MILBURN et ux
    80-73
    601 S.W. 2d 841
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellant.

      Henry Morgan, for appellees.
   Frank Holt, Justice.

The appellees were involved in a one vehicle traffic accident. The court, sitting as a jury, found that an insurance binder was in effect at the time of the accident, and the appellant insurer was liable to the appellees in the amount of $4,431 plus 10% interest from' the date of the judgment until paid. The sole issue presented by this appeal is whether the decision of the trial court is clearly erroneous. Ark. Rules of Civil Proc., Rule 52, July 1, 1979.

The facts are essentially undisputed. The appellant issued a 30 day oral insurance binder to the appellees effective April 17 and received appellees’ check for $118 in payment of the premium. Appellant’s local agent advised Mr. Milburn that additional information would be needed: namely, his wife’s driver’s license number and her date of birth. On May 16, appellant sent a notice of cancellation to the appellees which stated:

Jim Milburn from Joy Crafton, pickup insurance, date 5/16/77. I am returning your payment in the full amount of $118.00. We cannot continue the binder on your vehicle as we have not received the driver’s license number and date of birth of your wife. If you still want the insurance, return the check along with the necessary information and we will proceed. Thanks.

We first consider appellant’s argument that the evidence does not establish the requested information and the premium check were mailed before the accident. The appellant received the requested information and a check from the appellees in the morning mail of May 24. Appellees were involved in a one vehicle accident approximately 1:20 a.m. on May 24. Mr. Milburn maintained he and his wife mailed the requested information late in the afternoon of May 23, or a little bit after dark, in a letter dated May 21. According to him, receipt of the cancellation notice was delayed because of a change of address. His wife testified that she had written the letter a day or two before it was mailed. She corroborated her husband’s testimony that the letter to the appellant was mailed before the accident. It was stipulated by the parties that since the envelope was postmarked May 24, it had to have been mailed between 5 p.m. on May 23 and 4 a.m. on May 24. Suffice it to say that although there are inconsistencies in appellees’ testimony, we are of the view that the court’s finding was not clearly in error on the issue as to when the letter was mailed.

Even so, appellant asserts the receipt of the requested information and check from the appellees was ineffective to automatically reinstate the oral binder agreement and thereby provide coverage for the May 24 accident. The determination of whether the appellees’ vehicle was covered at the time of the accident turns on the meaning of the notice of cancellation which, as indicated, reads: “If you still want the insurance, return the check along with the necessary information and we will proceed.” Appellant argues that this communication could not constitute an offer to automatically accept Mr. Milburn’s application and premium check for a second binder since the original 30 day binder had expired several days previously; the local agent only had authority to issue a binder for 30 days; and since appellant had returned Mr. Milburn’s second check or premium payment, it was justified in refusing coverage.

The resolution of the meaning of the writing in question depends upon the conditions enumerated in the writing and whether the appellees had complied. We must consider the sense and meaning of the words used by the parties as they are taken and understood in .their plain, ordinary meaning. See Southern Farm Bureau Casualty Ins. Co. v. Williams, 260 Ark. 659, 543 S.W. 2d 467 (1976); and American Homestead Ins. v. Denny, 238 Ark. 749, 384 S.W. 2d 492 (1964). Further, a written instrument, such as a contract, binder, application or memorandum, delivered by the insurer to an applicant, is strictly construed against the insurer where the language employed is ambiguous or susceptible to one or more reasonable interpretations. See Glen Falls Ins. Co. v. Simpson, 246 Ark. 654, 439 S.W. 2d 292 (1969); Dove v. Ark. National Life Ins. Co., 238 Ark. 1033, 386 S.W. 2d 495 (1965); and Service Casualty Co. of New York v. Alvin Franklin Vasseau, 245 Ark. 63, 431 S.W. 2d 243 (1968).

Here, admittedly, the local agent had the authority and did issue a 30 day oral binder. It was cancelled by the agent at the expiration of 30 days because of appellees’ noncompliance as to the requested information. However, at the time of the cancellation, the appellant’s agent, as indicated, notified Mr. Milburn that “[i]f you still want the insurance, return the check along with the necessary information and we will proceed.” He complied about a week later. There is no evidence, at least none communicated to the appellees, that another 30 day binder was precluded. When Mr. Milburn complied with the requested conditions, he did all that was then or originally expected or required of him. In view of the situation of the parties and the total transaction, it appears to us that this communication is ambiguous and susceptible to one or more reasonable interpretations and, therefore, must be strictly construed. When we give effect to a reasonable interpretation or expectation, we cannot say that the trial court was clearly in error in finding that a binder agreement existed and provided coverage for the accident.

Affirmed.

Fogleman, C.J., and George Rose Smith and Hickman, JJ., dissent.

George Rose Smith, Justice,

dissenting. Even assuming that Milburn’s letter and check were mailed before the accident — an assumption open to serious .doubt — the majority is still wrong. The information and check were in the mail when the accident happened. That means that, in order for the act of mailing to constitute an acceptance, the insurance company’s offer to issue a policy must have been definite and complete. Restatement, Contracts, §§22 and 64 (1932).

That is simply not true. To begin with, the notice of cancellation was merely a letter written by the local agent, as to which there is no rule of strict construction. But even if there were, all the letter said was that if you will send us certain information and a check, “we will proceed.” Webster’s Second New International Dictionary (1934) contains many definitions of “proceed,” but not one of them means what the majority have read into the word. To proceed is to continue, to go forward. To proceed on a journey does not mean to arrive at one’s destination. Here the company had to be satisfied with the information before a policy would be issued. The majority have simply created an ambiguity where there is none and then resolved it against the insurance company, which amounts to nothing less than rewriting the agent’s language to say what it did not say.

Fogleman, C.J., and Hickman, J., join in this dissent.


author: Frank Holt, Justice.

text:
    David Allen SCHWINDLING v. STATE of Arkansas
    CR 80-71
    602 S.W. 2d 639
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980
    Rehearing denied August 25, 1980

      Stephen Engstrom, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was charged with burglary and theft of property arising out of the theft of a quantity of controlled drugs. See Ark. Stat. Ann. §§ 41-2002 and 41-2203 (Repl. 1977). He was convicted of both offenses and sentenced to concurrent terms of 20 years and 10 years, respectively. His only contention for reversal, through present counsel, is that the court erred in failing to instruct the jury on the sole issue raised by the evidence; i.e., the existence of the ordinary defense of self-induced intoxication.

Appellant presents a three-fold argument: (1) the existence of the defense of self-induced intoxication was the sole issue in the trial of the case; (2) self-induced intoxication is a “simple defense” to the crimes charged and the provisions of Ark. Stat. Ann. § 41-110 (1) (a) and (3) (c) require that such an instruction be given; and (3) the reasons supporting the “absent request” prohibition against raising the issue on appeal are strongly outweighed by fair trial considerations. Even assuming arguendo that the defense was sufficiently raised by the evidence, the court is not required to give a specific instruction when, as here, none was requested. Ark. Stat. Ann. § 43-2134 (Repl. 1977); Tyler v. State, 265 Ark. 822, 581 S.W. 2d 328 (1979); and Roberts and Charles v. State, 254 Ark. 39, 491 S.W. 2d 390 (1973). We do not construe § 41-110 (1) (a) and (3) (c) to require the trial court, sua sponte, give an instruction on an ordinary defense, as asserted here. The court instructed the jury that to sustain a burglary charge, the state must prove the appellant “entered . . . with the purpose of committing therein a theft of property,” arid that to sustain a theft charge, the state must prove the appellant “knowingly took . . . unauthorized control over the property of another person with the purpose of depriving the owner thereof.” The jury was clearly instructed on the statutory definitions of the terms “purpose” and “knowingly,” and that the burden was on the state to prove beyond a reasonable doubt the elements of each offense.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Pearline DANIELS, Trustee, et al v. ARKANSAS POWER & LIGHT CO.
    80-31
    601 S.W. 2d 845
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980

      Raymond A. Harrill, P.A., for appellants.

      House, Holmes & Jewell, by: Robert L. Robinson, Jr. and Charles R. Nestrud, for appellee.
   Darrell Hickman, Justice.

The only issue in this case is whether a check from Arkansas Power and Light Company to the appellants, redeemable in federal reserve notes (money) is compensation required by law in an eminent domain case.

The appellants argue the United States Constitution, the Arkansas Constitution, and Arkansas law require payment in gold, silver or certificates redeemable in such medium of exchange. U.S. CONST, art. I, § 10, cl. 1; Ark. CONST, art. 12, § 9.

Federal reserve notes are legal tender and, therefore, the appellants’ argument has no merit. 31 U.S.C. § 392 (1976); United States v. Wangrud, 533 F. 2d 495 (1976); United States v. Rifen, 577 F. 2d 1111 (1978).

Affirmed.


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

text:
    Truman P. BOLDEN v. Jimmy Lee CARTER
    80-78
    602 S.W. 2d 640
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980
    Rehearing denied August 25, 1980

      William P. Yan Wyke, for appellant.

      Dane, Felton & Hamilton, by: DonaldE. Hamilton, for appellee.
   Darrell Hickman, Justice.

Jimmy Lee Carter sued Truman P. Bolden and his brother, Dozier Bolden, for damages resulting from an assault and battery that occurred in 1976. Two criminal trials were held in connection with the same incident. In Bolden v. State, 262 Ark. 718, 561 S.W. 2d 281 (1978), we reversed Truman Bolden’s conviction for first degree battery. Bolden was again convicted and on appeal we again reversed the conviction. Bolden v. State, 267 Ark. 504, 593 S.W. 2d 156 (1980). This civil lawsuit was filed in October, 1976, five months after the incident. The matter was tried to a St. Francis County jury on August 22, 1979. The civil trial occurred after the second criminal trial but before we had decided the case on appeal.

The jury awarded Jimmy Lee Carter judgment for $25,-000 against Truman Bolden, finding no damages were due against Dozier Bolden.

On appeal Bolden raises three questions, all relating to procedure. First, he argues the trial court abused its discretion in not granting a continuance before trial. Second, he argues a continuance should have been granted during the trial. Finally, he argues that certain testimony from the criminal trials should have been admitted as evidence in the trial of this cause.

The appellant concedes that the granting or denial of a continuance is a matter within the sound discretion of the court. Rules of Civil Procedure, Rule 40, provides:

The court may, upon motion and for good cause shown, continue any case previously set for trial.

We will not disturb such a ruling unless we find the trial judge abused that discretion by acting capriciously and arbitrarily. B. J. McAdams, Inc. v. Best Refrigerated Express, Inc., 265 Ark. 519, 579 S.W. 2d 608 (1979).

Did the appellant show good cause and did the trial court abuse its discretion in denying the motions?

This case had been pending for over two years. For over a year the case was in federal court, having been removed on the motion of the appellant. In November, 1978, the case was remanded to the state court; at the same time the federal judge relieved counsel of record for the appellant of his duties. After it had been remanded to the state court, the case was called at pretrial three times in 1979 before the matter was finally set for trial in August, 1979.

On August 6th it was set for trial for the 22nd of August. On the 16th of August, new counsel for Bolden, William P. Van Wyke of East Arkansas Legal Services, filed a motion for continuance alleging, among other things, insufficient time to prepare for trial. On the 20th of August, a hearing was held on the motion. The only evidence we have before us is the record, which consists of pleadings and docket entries, and the statements of counsel that were made to the court at the hearing. Counsel for the appellant argued Bolden had diligently tried to obtain counsel contacting two or three lawyers; he had been unable to obtain their services. Van Wyke stated that his services were obtained by Bolden, because Bolden was an indigent, on the 9th of August, but that due to the complexity of the case it would be impossible to be ready for trial by the 22nd of August.

Counsel for the appellee remarked that Bolden had been present before the court in April, without counsel, and asked for and was granted a continuance. At that time the trial judge told Bolden the matter would be tried during the fall term and that Bolden would have to have an attorney. Counsel for the appellee argued that Bolden had not demonstrated sufficient effort to obtain counsel and that the trial should not be delayed.

The docket reflected Bolden had obtained other counsel. A lawyer’s name was entered on the docket as being counsel for Bolden, but apparently that counsel had not been retained by Bolden. We do not know how that lawyer’s name got on the docket as Bolden’s attorney of record.

On these bare facts we are asked to find that the court abused its discretion, and that we cannot do. A trial court is obligated to administer its docket in an efficient manner and this case had been pending for along time; apparenly the trial court had been lenient with Bolden in delaying the matter. Bolden did not testify, nor is there any affidavit in the record to dispute the record in any way. It is simply a case of a lawyer being hired just before trial and that fact alone is not enough for us to find an abuse of discretion. No doubt the judge was familiar to some extent with the history of this case and without any evidence to the contrary, we cannot presume he acted arbitrarily or capriciously.

After the jury had retired to deliberate, counsel for the appellant asked for a continuance because two witnesses could not be present to testify on Bolden’s behalf. A subpoena had been issued for one of the two witnesses but she had not been served by the sheriff s office. The other witness, according to appellant’s counsel, was seriously ill and unable to appear, although she was present in court at one time.

It was the decision of the appellant’s counsel not to call the seriously ill witness, Debra Ray. There was no proffer of what her testimony would be nor any evidence offered of her unavailability except statement by counsel. The same is true as to the witness, Ms. Cleo McCornell. In addition, the appellant’s lawyer stated that he believed McCornell was evading service of process, yet no request was made of the court during the trial for assistance. These facts alone are not sufficient to hold the trial court abused its discretion in denying this motion for continuance. This motion was made after the jury had begun to deliberate.

During the trial the appellant requested that testimony given by three witnesses at the previous criminal trials be admitted in evidence. The basis of that request was Rule 804(b)(1) of the Rules of Evidence, which reads:

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

See, also, Rules of Civil Procedure, Rule 80, which reads:

When admissible, the testimony of any witness given in any court at any former trial between the same parties or their privies and involving the same issue or claim for relief may be proved by the duly certified transcript thereof.

The question to us is, was Jimmy Lee Carter a party in the criminal trial or one against whom former testimony could be admitted in a later civil trial?

The appellant cites several cases for our consideration. Lloyd v. American Export Lines, Inc.., 580 F. 2d 1179 (3d Cir. 1978); In re Master Key Antitrust Litigation, 72 F.R.D. 108 (D.C. Conn. 1976). In the Lloyd case, the Court of Appeals held that the United States Coast Guard was “predecessor in interest” to a man named Alvarez for purposes of Rule 804(b)(1). The Coast Guard had conducted hearings on whether to suspend Merchant Marine documents of Lloyd because of a fight he had with Alvarez. In the Master case, it was found that the United States government was a “predecessor in interest” to a witness in an antitrust suit.

Of course Jimmy Lee Carter was not a party to the criminal trial. Also, the trial court remarked that he had been the trial judge during the criminal case and that Carter was not present during the time the former testimony was given and had no opportunity to even listen to the testimony, much less develop that testimony by direct, cross or redirect examination. Consequently, the trial court ruled that the former testimony was not admissible by the Arkansas rules.

We agree with that conclusion. Simply because Carter was a police officer and Bolden was being prosecuted for criminal misconduct in connection with this assault and battery would not mean the testimony taken during those criminal trials would be admissible in a civil action between Carter and Bolden. We are unwilling to say, as a matter of law, that the State was a predecessor in interest to Carter or that the testimony was admissible under Rules of Civil Procedure, Rule 80.

It is interesting to note that Weinstein reports that Congress has narrowed the federal rule so that it is no longer a question of whether one is a predecessor in interest in federal criminal cases; one has to be a party in the prior proceeding before testimony can be used at another trial. Weinstein’s Evidence, United States Rules, § 804(b)(1) [5].

Affirmed.

Purtle and Mays, JJ., dissent.

John I. Purtte, Justice.

I reluctantly dissent in this case because I know the trial court was acting in the utmost good faith. However, it is my opinion that the fact that Debra Ray was a vital witness to the appellant and was confined to the hospital was sufficient ground to require a continuance.

I am also not convinced that a reasonable effort was made to serve the subpoena on Mrs. McCornell. It is true the subpoena reflects the sheriff made one attempt to serve Mrs. McCornell at her home but was unable to contact her. It is equally clear that an assistant to appellant’s attorney had no trouble in locating Mrs. McCornell at her home on that same date.

I have no sympathy for the appellant’s apparent lack of diligence in failing to timely engage the services of an attorney to represent him in this matter. However, it is obvious this attorney did not have sufficient time to properly prepare a defense for a matter so important and complicated. I feel the court should have granted a continuance of at least a few days in order to allow the attorney to better prepare himself for this trial, particularly since no prejudice would have resulted.


text:
    Matthew “Peewee” BAILEY v. STATE of Arkansas
    CR 80-68
    601 S.W. 2d 843
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980

      Gibson & Gibson, P.A., by: R. Bynum Gibson, Jr., for appellant.

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

Matthew “Peewee” Bailey was convicted of rape in the first degree and sentenced to five years imprisonment.

On appeal, his brief indicates that four points of error will be argued but only two arguments are made regarding errors by the trial court. We do not consider the errors alleged which are not supported by argument or authority. See Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606 (1977).

First, Bailey argues that since he was 15 years of age at the time the offense occurred, the circuit court did not have jurisdiction to try him. We decided in Sargent v. Cole, 269 Ark. 121, 598 S.W. 2d 749 (1980), that a juvenile could be tried in circuit court.

His second argument is that an abundance of irrelevant and prejudicial testimony was permitted.

He argues the prosecutor should not have been allowed to question the victim regarding physical problems she had suffered since the rape relating to her lower stomach area and kidneys. The appellant argues there was no evidence that the alleged rape caused the physical problems. This subject was raised during direct examination by the State and indirectly referred to by the appellant on cross examination. The testimony was probably relevant. However, if it were not, it was certainly not of a nature requiring a mistrial. Hill v. State, 255 Ark. 720, 502 S.W. 2d 649 (1973).

When Bailey was on the witness stand he was asked why he was trespassing at the Cottin Gin when the incident took place. An objection made to this question was overruled by the trial court. This question, while perhaps not directly pertinent to the charge, was, if anything, harmless error.

During cross examination of Bailey, the prosecutor kept arguing with him as to what another witness had said. That argument centered on whether Bailey had had intercourse with the victim once or twice. Actually, the transcript reflects that the other witness had said Bailey only had intercourse once with the victim. The court finally indicated that the jury could make up its own mind regarding what the testimony was. There was no prejudicial error from this verbal exchange.

We have examined the record and cannot say that any irrelevant evidence was of such a nature to deny Bailey a fair trial. Consequently, the judgment is affirmed.

Affirmed.


author: John F. Stroud, Justice. Richard L. Mays, Justice,

text:
    SOUTHWESTERN BELL TELEPHONE COMPANY v. Dr. A. J. WILKES
    79-330
    601 S.W. 2d 855
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980

      D. D. Dupre, Sandra Brown, and Gary Hartman, and Friday, Eldredge & Clark, by: Herman Ivester, for appellant.

      William C. Gilliam, for appellee.
   John F. Stroud, Justice.

This is an appeal from a damage suit where the trial court held that the tariff of the phone company attempting to limit its liability for listing omissions was unconstitutional. We disagree with the ruling of the court and reverse the jury verdict.

Appellee brought this action against appellant because his name was omitted from the “Optometrists O.D.” section of the yellow pages in the 1978 Malvern telephone directory. Appellant ordinarily lists each business number in the white and yellow pages of its annual directory as part of the services provided under its service contract; however, in the 1978 directory appellant listed appellee’s name and number in only the white pages. Although both appellee’s home and business numbers are contained in the white pages, they are listed under “Wilks, A. J., Dr.” and make no reference to his being an optometrist. Appellee filed suit to recover damages in the amount of $10,000 for past and prospective business lost due to the omission, and he testified that he had lost patients and income during 1978 to the optometrists listed in the yellow pages. Appellant admitted the omission, but contended that the amount of damages appellee could recover was limited by its tariffs to the cost of appellee’s business telephone service for the one year period covered by the directory. Although appellee had been continuousy listed in the yellow pages for 23 years, a witness for appellant pointed out that the listings were provided as a service without charge. Appellant filed a motion for summary judgment seeking dismissal of that part of appeellee’s complaint which sought damages in excess of $169-80, the cost of appellee’s telephone service for the year in question. The trial court denied the motion and, at trial, prohibited appellant from introducing the tariff into evidence due to the court’s finding that it violated Article 5, Section 32 of the Arkansas Constitution. Following a jury trial on August 8, 1979, appellee was awarded a judgment of $500.00. Appellant brings this appeal, urging that the trial court erred in finding the tariff in question violated Article 5, Section 32 of the Constitution and in failing to limit the amount of appellee’s recovery to $169-80.

Ark. Stat. Ann. § 73-218 (Repl. 1979) confers upon the Arkansas Public Service Commission the power to oversee and regulate the cost and rendition of the services provided by the various public utilities in this state. Appellant is a public utility and, as such, must file with the Public Service Commission the terms and conditions of its basic service contract in order that the Commission may ascertain whether they are reasonable and in the public interest. After these terms and conditions are filed with the Commission and accepted by them, they are known as tariffs. Appellant’s tariff that is in question on this appeal, General Exchange Tariff, Original Sheet 11, Section 25.8.2, provides as follows:

Errors — The Telephone Company’s liability for damages arising from errors or omissions in the making up or printing of its directories or in accepting listings as presented by customers or prospective customers shall be limited to the amount of actual impairment of the customer’s service, and in no event shall it exceed the amount paid for the service during the period covered by the directory in which the error or omission occurs.

The trial court ruled that this tariff violated Article 5, Section 32 of the Arkansas Constitution entitled “Workmen’s Compensation Laws — Actions for personal injuries” which provides:

The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall he enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property, and in case of death from such injuries the right of action shall survive; and the General Assembly shall prescribe for whose benefit such action shall be prosecuted. (Emphasis added.)

The trial court apparently reasoned that the Commission’s approval of the tariff was tantamount to action by the General Assembly, which delegated to the Commission the power and authority to approve such tariffs. To reach the result obtained, the trial court must also have found that the injury to appellee’s business came within the scope of Article 5, Section 32, and reasoned that the General Assembly could not delegate authority which the constitution prohbited the General Assembly from exercising.

The sole, and narrow, question on this appeal is whether appellant’s tariff, Section 25.8.2, violates Article 5, Section 32 of the Arkansas Constitution. We disagree with the ruling of the trial court, as we do not think that Article 5, Section 32 contemplates the type of injury sustained in this case by appellee — that is, damage to his earnings from his optometrical practice. We have no case directly in point in Arkansas, but the Supreme Court of Kentucky, a state from whence much of our basic law was derived, has considered the question. We agree with their interpretation of a similarly worded constitutional provision that “injuries to persons or property” was intended to mean physical injuries to the person and physical damage to property. Jacobs v. Underwood, 484 S.W. 2d 855 (Ky. 1972).

Therefore, we reverse the ruling of the trial court and remand this case for further proceedings. We are not stating, however, that this tariff can withstand any and all attacks. It may be violative of some other constitutional provision or bé unenforceable as contrary to public policy. But, as we are not presented with those questions tan this appeal, we do not now address them.

Reversed and remanded.

Hickman, Purtle and Mays, JJ., dissent.

Richard L. Mays, Justice,

dissenting. The trial court held unconstitutional a Southwestern Bell tariff imposed by the Public Service Commission limiting Southwestern Bell’s liability for damages arising from errors in making up its directories to the charge for the service. The trial court ruled that the tariff violated Article 5, Section 32 of the Arkansas Constitution which prohibits the state from limiting damage recoveries for injuries to persons or property. Today this court reverses the trial court because it holds that the state constitutional restraint against limiting recovery for injuries to persons or property does not contemplate injuries to economic interests. I disagree. In my judgment there are only two kinds of injuries in the world, personal and property. A constitutional provision which protects against injuries to property protects against injuries to economic interest, tangible or intagible.

I would, therefore, affirm the ruling of the trial court.

Hickman and Purtle, JJ., join in this dissent.


author: F. Stroud, Justice.

text:
    Keath NORTH v. William V. PHILLIBER and Loreta PHILLIBER, His Wife
    80-77
    602 S.W. 2d 643
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980
    Rehearing denied August 25, 1980

      Ratten, Brown, Leslie & Davidson, by: Charles A. Broum, for appellant.

      Homer Tanner, for appellee.
   F. Stroud, Justice.

is a suit for damages for the breach of a written contract to convey trial court denied judgment and found the seller was justified in refusing to convey. We disagree.

In early 1978 appellees listed certain residential property in Little Rock for sale with Block Realty Company for the asking price of $28,750. Appellant, a licensed real estate broker, inspected the apartments on the property and submitted an offer in his own behalf of $22,500 to appellees through Grady Wahlquist, one of Block’s salesman. The offer was accepted and signed by appellees on April 3, 1978, and provided that the “closing date to be designated by agent, is estimated to be on or about 45 days from acceptance.” On or about June 12, appellees came to Little Rock and were requested by appellant to sign certain papers concerning the conventional loan required as a part of the transaction, but they refused to do so. After several months of negotiations and demands proved futile, appellant filed suit against appellees seeking $10,000 in damages for breach of the offer and acceptance agreement. The trial court, sitting as a jury, found that the contract was in several respects fatally ambiguous, that appellant had attempted to vary the terms of the written agreement, that the transaction was “raw” as appellant and Wahlquist had attempted to take advantage of appellees, that appellant had failed to tender to appellees copies of the closing instruments and payment of the cash portion of the contract price, and that appellant had failed to prove the allegations in his complaint by a preponderance of the evidence. Appellant brings this appeal, alleging five points for reversal.

Appellant first contends that the trial court erred in finding the agreement ambiguous as to the terms of the purchase price, the execution of closing documents, the subordination of the proposed lien of appellees, and the use of the proceeds of the loan to be obtained by appellant. The offer and acceptance, after reciting the purchase price of $22,500, in pertinent part provided:

$6,500.00 of the purchase price payable in cash. Balance of purchase price in the amount of $16,000.00 in the form of a note secured by a Second Deed of Trust ((mortgage) on the property; to be executed by Purchaser in favor of Sellers, payable at $162.29 per month, or more, including interst at 9% per annum, (with entire balance due 15 years from date, of note or upon sale or transfer of the property). Conditioned upon purchaser obtaining a conventional loan to be secured by the property in an amount not to exceed 75% per cent of appraised value.

After Wahlquist received the offer from appellant, he discussed the terms with Rev. Philliber by telephone, and mailed them the offer and acceptance upon being advised that they wished to accept it. It is the duty of the court to construe a contract according to its unambiguous language without enlarging or extending its terms. Christmas v. Railey, 260 Ark. 150, 539 S.W. 2d 405 (1976); New York Life Insurance Company v. Dandridge, 202 Ark. 112, 149 S.W. 2d 45 (1941). Further, while any ambiguity in a contract must be construed against the party who drafted it, Christmas, supra, a construction which neutralizes any provision of a contract should never be adopted if the contract can be construed to give effect to all provisions. Continental Casualty Co. v. Davidson, 250 Ark. 35, 463 S.W. 2d 652 (1971); Fowler v. Unionaid Life Ins. Co., 180 Ark. 140, 20 S.W. 2d 611 (1929). In Fowler, supra, we stated the following:

It is also a well-settled rule in construcing a contract that the intention of the parties is to be gathered not from particular words and phrases but from the whole context of the agreement. In fact, it may be said to be a settled rule in the construction of contracts that the interpretation must be upon the entire instrument and not merely on disjointed or particular parts of it. The whole context is to be considered in ascertaining the intention of the par-ties, even though the immediate object of inquiry is the meaning of an isolated clause. Every word in the agreement must be taken to have been used for a purpose, and no word should be rejected as mere surplusage if the court can discover any reasonable purpose thereof which can be gathered from the whole instrument. The contract must be viewed from beginning to end, and all its terms must pass in review, for one clause may modify, limit, or illuminate the other. Taking its words in their ordinary and usual meaning, no substantive clause must be allowed to perish by construction, unless insurmountable obstacles stand in the way of any other course. Seeming contradictions must be harmonized, if that course is reasonably possible. Each of its provisions must be considered in connection with the others, and, if possible, effect must be given to all.

The testimony of Rev. Philliber, Wahlquist and appellant indicates that they all understood that a portion of the down payment of $6,500 would be used to pay off a current loan of appellees secured by the property, and that the $16,000 lien to be retained by appellees at closing would be a second lien. They all understood that appellant would obtain a loan to be secured by a first lien on the property. On the same day that appellees signed the offer and acceptance, Rev. Philliber wrote a letter to Wahlquist acknowledging that he had signed the contract and referring to most of its terms. Before Rev. Philliber signed, he called his realtor, Wahlquist, because the agreement did not require appellant to spend the proceeds of the loan he was to obtain on improvements on the property. Appellees could have refused to sign until language was included that required the loan proceeds be expended on the property, but were content to merely rely on the statement of Wahlquist that he would stake his professional reputation that appellant would spend the money on the property.

We find that the offer and acceptance sued upon in this matter was not ambiguous and should have been enforced. Accordingly, the ruling of the trial court must be reversed. We disagree with several other findings of the trial court which we will now discuss to avoid a repetition of the error on retrial.

The trial court also found that appellant “endeavored to alter and vary the terms of the written contract . . . reducing the interest rate and the monthly installments under the proposed note evidencing the balance of the purchase price.” The introduction of new terms doubtless indicates a wilingness to negotiate further, but such a response is a counteroffer that must in turn be accepted by the other party. Rounsaville v. Van Zandt Realtors, 247 Ark. 749, 447 S.W. 2d 655 (1969); Smith v. School District No. 89, 187 Ark. 405, 59 S.W. 2d 1022 (1933). After appellees had refused to sign the initial papers pertaining to appellant’s proposed loan, appellant did suggest new terms to appellees in what could reasonably be considered as an attempt to settle the dispute so that a closing could occur. However, the proposed changes in the contract terms in no way altered the original written agreement since they were not accepted by appellees. Therefore, the proposals are of no significance in this matter.

We think the trial court also erred in finding there was overreaching on the part of appellant and Walhquist, either through ignorance or intention. Appellees had a prominent realty company representing them in the initial stages of the transaction, and there is no persuasive evidence that the transaction was other than one at arm’s length. Wahlquist was an agent of appellees and should have not been paired up with appellant by the trial court.

Finally, we think the court erred in inferring that tender of performance was required by appellant before the contract was enforceable. When appellees came to Little Rock in June, they made it very clear that they had no intention of going through with the closing procedures pursuant to the terms of the written agreement. This court has often stated:

On general principles, whenever the act of one party, to whom another is bound to tender money, services, or goods, indicates clearly that the tender, if made, would not be accepted, the other party is excused from technical performance of his agreement. The law never requires a vain thing to be done.

Eagle Properties v. West & Co., 242 Ark. 184, 412 S.W. 2d 605 (1967); Rich, Executor v. Rosenthal, 223 Ark. 791, 268 S.W. 2d 884 (1954); Doup v. Almand, 212 Ark. 687, 207 S.W. 2d 601 (1948). Accordingly, appellant had no duty to tender copies of the proposed mortgage and note to appellees and no duty to tender the payment due at closing in view of appellees’ repudiation of the contract.

We need not consider appellant’s last point raised on appeal, as it pertains to the refusal of the court to admit certain evidence concerning damages. As the trial court had previously decided that the contract was ambiguous and unenforceable, it was unnecessary for the court to hear evidence as to damages. We presume that this evidence, if properly offered, will be admitted by the trial court on retrial.

Pursuant to Rule 52 of the Arkansas Rules of Civil Procedure, findings of fact made by the trial court shall not be set aside unless clearly erroneous. We think that the findings of the court in this matter were clearly against the preponderance of the evidence and clearly erroneous. Accordingly, we reverse the judgment and remand this cause for further proceedings.

Reversed and remanded.

Hickman, J., dissents.


author: John F. Stroud, Justice.

text:
    Cedric MILLER v. STATE of Arkansas
    CR 80-6
    601 S.W. 2d 845
    Supreme Court of Arkansas
    Opinion delivered June 30, 1980

      David F. Guthrie, for appellant.

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

Appellant, an eighteen year old black male, was convicted by a jury and sentenced to life imprisonment for rape, 20 years for burglary and 10 years for theft of property. He alleges five points of error on appeal. We reverse the conviction because we agree with appellant that the trial court unduly restricted the cross-examination of the victim concerning her prior statement as to the identity of the assailant.

Around midnight on January 10, 1979, Mattie Evans, a 78 year old white female, responded to a knock on the door of her residence in El Dorado. After a short conversation through a latched screen, a person whom Mrs. Evans identified to the police as appellant gained entrance to her home. The assailant forcibly raped Mrs. Evans, took a pistol from a desk drawer and fled. She testified that when she tried to fight and scream, he slapped her and twisted her arm until it cracked. As soon as he left, she telephoned the police and they were at her home within minutes. She told the police what had happened and identified her assailant as Cedric Miller, who lived down the street across from her brother. She knew Cedric Miller, as he had been in her home to visit with her brother and he had on occasion mowed her lawn. As Mrs. Evans complained of pain in her wrist and back, she was taken to the hospital where she was examined by a gynecologist. In addition to a broken arm and numerous bruises and abrasions to her face and body, he found secretions, bleeding and bruises at the entrance of the vagina, causing him to conclude that she had been raped.

The appellant was arrested at his home at approximately 12:48 a.m., handcuffed, read the Miranda warning, taken to the station and booked. Appellant denied any knowledge of the crimes and claimed that he was elsewhere at the time they occurred. Trial was held on July 12 and 13, 1979, before a jury. Following conviction for rape, burglary and theft of property, appellant brings this appeal, alleging five points of error. We will not discuss four of the points, as we find no merit to his allegations that the evidence-was insufficient to support the convictions, that his motion for directed verdict of acquittal should have been granted, that the cautionary instruction on rape should have been given in the form requested by appellant, or that the verdict and sentences were the result of passion and prejudice. However, the remaining point of error urged by appellant is meritorious — the court unduly restricted cross-examination of the victim concerning her prior statement as to the identity of the assailant.

There is no question in this case that Mrs. Evans was raped, and there is certainly ample evidence to find that a burglary and theft of property occurred as a part of the same chain of events. Therefore, the real question at trial was a determination by the jury of whether it was the defendant or someone else who committed the crimes. There was extrinsic evidenced introduced at trial which corroborated Mrs. Evans’ identification of the assailant as a black male, but none positively linking appellant to the crimes. An F.B.I. agent assigned to the microscopic analysis unit testified that he found Negroid headhair on the victim’s housecoat and bedding, but when he compared them to hair samples of the appellant, he found “subtle differences,” making it impossible to say the hair was that of appellant. Similarly, an F.B.I. agent assigned to the serology section examined clothing of the victim and appellant for bodily fluids and compared those found with known bloody samples from both persons. The only correlation was between fluids on the victim’s housecoat and the appellant’s undershorts which were of the same blood group, but this only indicated that appellant was among the 10% oí the population that included the assailant. There were no fingerprints of appellant found in the victim’s home, and a thorough search of appellant’s home and the neighborhood failed to reveal the stolen pistol. Although semen containing sperm cells was found on appellant’s undershorts and inside the fly area of his pants, both he and his girl friend testified that they had engaged in sexual intercourse earlier that evening at her home. Finally, a detective with the El Dorado police department made plaster casts of footprints in the victim’s yard and flower garden that definitely matched the shoes of appellant. Appellant testified, and Mrs. Evans could not positively deny, that he had been to her house four days earlier to pick up a hammer, and while there he put the garden hose in the flower bed at her request. This brief summary of some of the most pertinent testimony is reviewed merely to show the importance of the identification of appellant by the victim, for without it appellant would likely never have been arrested and charged, but certainly a conviction could not be sustained.

During the cross-examination of the victim, Mr. James, the attorney for appellant, attempted twice to interrogate her about the statement she made to the officers at the hospital concerning her prior identification of appellant as the assailant. The prosecuting attorney, Mr. Kinard, objected both times.

Q. Do you recall being , asked on that occasion on the night that it happened if you knew who did it? Do you recall being asked that question?
A. No, but I’m sure I was.
Q. The question was, ‘Do you know him?’ And your answer . . .
Mr. Kinard: Objection, your Honor.
He had asked her if she recalled and asked the question — she said, ‘No, she didn’t recall.’ And he’s attempting at this time to impeach her on something she has not said she recalled. It’s not proper. I object.
The Court: I don’t know what question he’s going to ask. If you’re going to do what Mr. Kinard says, you’re attempting to do — I’ll sustain the objection. If you’re going to ask something else, go ahead.
Mr. James: (Continuing).
Q. When they asked you that night who it was, do you recall what you tol them?
A. Well, I don’t recall, but I’m sure I told them it was Cedric Miller.
Q. All right. The question — Who was he .. .’
Mr. Kinard: Objection, your Honor. I’d like to approach the bench.

A conference was held at the bench out of the hearing of the jury. Mr. James was attempting to impeach the testimony of Mrs. Evans by virtue of a statement she purportedly made to one of the police officers. In what was apparently a taped interview that was later transcribed, the officer asked how she knew the assailant was Cedric.Miller, and she replied:

I must have said it looked like, you know, Cedric. Why? Because it just looked like him, and so many niggers look alike.

The prosecuting attorney argued that to cross-examine Mrs. Evans about that purported statement was not appropriate, not relevant and was highly inflammatory because of her use of the word “nigger.” Appellant’s counsel argued in essence that the inconsistency within the statement was most relevant to the identification and that he should be allowed to cross-examine her about it. Following the conference at the bench, the trial court said, “I think she’s answered your questions. I think that complies with what she said right here in that statement. I’ll sustain the objection.” The state argues on appeal that the evidence is irrelevant, but if relevant, should have been excluded because its probative value was substantially outweighed by the danger of unfair prejudice. Rules 401 and 403, Uniform Rules of Evidence. We disagree with both contentions as well as the argument of the state that the attorney for appellant could have rephrased the question and substituted the word “blacks” for “niggers,” as the trial court’s ruling indicated the matter was closed.

Mrs. Evans made several inconsistent statements to the officers and physicians concerning the details of her traumatic experience, particularly as to the conversation at her front door with the assailant before he entered and whether she was sleeping or reading when he knocked. It is certainly understandable that a 78 year old lady just beaten and raped in the early morning hours might be addled and confused, but this is all the more reason why the appellant should have been allowed to cross-examine her about her inconsistent statement made to the officers concerning her identification of the appellant.

The right of free and unfettered cross-examination of the accuser by the accused is basic to our system of justice. It has been said countless times by this and other courts, but perhaps never clearer than by Justice Mehaffy in Smith v. State, 200 Ark. 1152, 143 S.W. 2d 190 (1940):

It is a fundamental rule of the English common law, embodied in both the state and federal constitutions as a part of the declaration of rights, that in all criminal prosecutions the accused shall have and enjoy the right to be confronted by the witnesses against him. To be confronted by the witnesses against him does not mean merely that they are to be made visible to the accused, so that he shall have the opportunity to see and to hear them, but it imports the constitutional privilege to cross-examine them. The right of cross-examination is a substantive right, and a most valuable and important one. By it the accused can test the interest, prejudice, motive, knowledge, and truthfulness of the witness, and nothing can be substituted for this right of cross-examination.

We cannot say the error in the court’s restriction of the cross-examiation of the victim by the accused was harmless in this case, as appellant received the maximum prison sentence possible on all three charges. The case is reversed and remanded for retrial in a manner not inconsistent with this opinion.

Reversed and remanded.