text:
    Mrs. E. O. HANSON et al v. W. S. CHEEK and Arthur R. DAVANT, Jr.
    5-5722
    475 S.W. 2d 526
    Opinion delivered January 31, 1972

      John D. Thweatt, James M. Thweatt, Fred McDonald and Dan Kennett, for appellants.

      Heiskell, Donelson, Adams, Williams & Wall; Hale ir Fogleman and Brick <br Wallin, for appellees.
   Frank Holt, Justice.

This appeal relates to the respective liabilities as between the signers of a note. Appellants, Mrs. E. O. Hanson, Elsie S. McCain, H. C. Stratton and Lucy B. Stratton, are stockholders in the Hughes Development Corporation. They executed their personal promissory note to the Fidelity National Bank of West Memphis, Arkansas. Three other stockholders, who do not appeal, also signed the note. Subsequently, appellees, W. S. Cheek and Arthur R. Davant, Jr., who are not stockholders, also signed the note. Upon maturity of the unpaid note, the bank sought judgment against the corporate stockholders, individually, as makers of the note and also against the appellees, Davant and Cheek, as endorsers. The trial court, sitting as a jury, found that the seven stockholders were the makers of the personal promissory note and that the appellees were accommodation endorsers of the note. The court also found that all parties who signed the note were jointly and severally liable to the bank; that Cheek and Davant “have no liability to the other defendants accommodated by their endorsements,” and that if Cheek and Davant should pay any part of the judgment on the note, they have the right of recourse against the makers of the note.

The appellants appeal only from that portion of the judgment holding that appellees Cheek and Davant are accommodation endorsers with the right of recourse against the appellants as makers of the note. Appellants contend for reversal that the court erred because: “Appellees received the same benefits from the proceeds of the note as appellants and are thereby precluded from the status of accommodation endorsers.” We review the evidence to determine if there is any substantial evidence to support the trial court’s finding that appellees are accommodation endorsers with the right of recourse.

The appellants and three other stockholders in the Hughes Development Corporation signed a personal promissory note for $40,000.00. These funds were needed by the corporation in order to exercise its option to purchase some property for constructing a shopping center. One of the stockholders, who does not appeal, personally secured the signatures of the appellants and the other stockholders (a total of seven) upon this personal note. This stockholder then took the note to the bank for approval of the loan. The appellees, Cheek and Davant, were present. Appellees had been given an exclusive contract by the corporation to secure permanent financing for the construction of this project. They would earn a 10% commission upon procurement of the permanent loan. A bank official asked the appellees if they considered this to be “a good loan,” to which they responded in the affirmative. The official then asked if they would “mind putting your signatures on the back of it then.” The appellees agreed and signed on the back of the note. The stockholders had signed on the face of the note. It appears undisputed that the appellees signed the note only at the request of the bank. The appellees never were shareholders in the corporation, although subsequent to the loan they were placed on the board of directors, or in some official position with the corporation. According to one of the stockholders, this was done with the thought that it would be beneficial to the corporation in negotiating permanent financing for its construction of the proposed supermarket. The funds acquired from the loan were deposited in the corporation’s account at the lending bank and, after payment of the loan expenses, most of the funds were used to exercise the option to purchase the real estate. Any checks drawn on this account established at the lending bank required the countersignature of one of the appellees or a Mr. McGraw, a stockholder. The appellees received no part of the funds. It is undisputed that the only possibility of appellees receiving any compensation from the corporation for their services depended upon their arranging permanent financing for the proposed shopping center complex at an estimated cost of $3,000,000.00.

Ark. Stat. Ann. § 85-3-415 (Add. 1961) reads, in pertinent part:

(1) An accommodation party is one who signs the instrument in any capacity for the purpose of lending his name to another party to it.
(5) An accomodation party is not liable to the party accommodated, and if he pays the instrument has a right of recourse on the instrument against such party.

In Riegler v. Riegler, 244 Ark. 483, 426 S. W. 2d 789 (1968) we recognized that in an action for contribution on the payment of a note, the burden is upon the asserted accommodation maker to prove no benefits were received. There we applied the substantial evidence rule in affirming the action of the trial court in denying the status of an accommodation maker.

In the case at bar it certainly must be said there is substantial evidence to support the finding of the trial court that the appellees are accommodation endorsers with the right of recourse to recover from the appellants any payment appellees make upon the note.

Affirmed.

Fogleman, J., disqualified and not participating.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    John Charles WILSON v. STATE of Arkansas
    5666
    475 S.W. 2d 543
    Opinion delivered January 31, 1972

      John D. Eldridge, for appellant.

      Ray Thornton, Attorney General; James A. Neal, Asst. A tty Gen., for appellee.
   Frank Holt, Justice.

This appeal results from the trial court’s denial of appellant’s Rule 1 Petition for Postconviction Relief. For reversal appellant first contends that his 1964 conviction and sentence for forgery and uttering, as an habitual criminal under Ark. Stat. Ann. §§ 43-2328, -2330 (Supp. 1969), “should be reversed because said statutes violate Article II § 9 of the Arkansas Constitution in that it constitutes cruel and unusual punishment in that the sentence imposed is disproportionate to the offense charged so as to shock the moral conscience of the public.”

Appellant pleaded guilty to two counts of forgery and two counts of uttering. The trial court assessed the minimum penalty of two years on each count. Pursuant to the habitual-criminal act, the court then added the minimum of one year for each of four previous felony convictions, or a total of four additional years to each sentence. This resulted in appellant receiving six years on each of the four charges, or a cumulative sentence of 24 years. The appellant asserts that the imposition of these sentences for forging and uttering two checks totaling $77.46 is so disproportionate to the crime as to constitute cruel and unusual punishment in violation of his constitutional rights. In Dolphus v. State, 248 Ark. 799, 454 S. W. 2d 88 (1970) we specifically held that the mere fact our habitual-criminal statute provides for a more severe penalty does not make it cruel or unusual punishment. We also said that the increased penalties provided for in our habitual-criminal statute are not inténded as a punishment for previous crimes. To the contrary, the more severe punishment is for the latest offense which is repetitive and, therefore, an aggravated offense. Oliver v. United States of America, 290 F. 2d 255 (8th Cir. 1961). Also, see Ridgeway v. State, 251 Ark. 157, 472 S.W. 2d 108 (1971).

In McDonald v. Commonwealth, 53 N. E. 874, aff’d 180 U. S. 311 (Mass. 1899) it was contended that the 25-year sentence imposed upon a third offender by the terms of an habitual criminal act was so disproportionate to the subsequent offenses of forgery and uttering as to constitute cruel and unusual punishment. There it was aptly said:

* * * The penalty was determined, no doubt, by the view that in such a case the criminal habit has become so fixed, and the hope of reformation is so slight, that the safety of society requires and justifies a long-continued imprisonment of the offender.

In the case at bar we are of the view that the penalty assessed does not constitute cruel and unusual punishment. Furthermore, we have long recognized that it is the prerogative of the legislature to classify crimes and to prescribe the punishment for violations. Blake v. State, 244 Ark. 37, 423 S. W. 2d 544 (1968).

Appellant next asserts for reversal “that the information charging appellant does not specifically set forth provisions of the habitual-criminal statutes under which appellant was sentenced and is void as a matter of law.” It is true that the information did not specifically designate the four previous convictions of the appellant. However, it contained the following language as a separate paragraph following the alleged offenses: “These charges are filed under the provisions of the Ark. Habitual Criminal Statute.” Any defect in this general allegation could have been reached by a motion for a bill of particulars. The information was sufficient to put the appellant on notice that the charges included the habitual-criminal act and any lack of specificity of the allegation was waived by his appearance and voluntary plea. Williams v. State, 215 Ark. 757, 223 S. W. 2d 190 (1949); Jackson v. State, 226 Ark. 731, 293 S. W. 2d 699 (1956).

Appellant also argues that the effect of the habitual-criminal statute was not explained to him when he pleaded guilty seven years previously. Nor was he aware of being charged under the habitual-criminal act until he received the court records from the circuit clerk after he filed his present petition in 1970. He testified that he was represented by an attorney (not present counsel who is court appointed) and discussed the charges and his plea of guilty with him; also, that he was admitted to bail. The docket sheet shows that following his plea of guilty his sentence was deferred for almost four months. When questioned by the court as to whether he remembered that the court and the prosecuting official discussed with him on the day of the trial the effect of the habitual-criminal statute, he replied: “Well, I’m not saying the Court didn’t say it, I just say I don’t remember it.” The appellant further testified that previous to his plea of guilty he had served sentences for forgery on four previous occasions; that he was 37 years of age, and had spent 15 years incarceration in penal institutions. Certainly appellant was not unfamiliar with proceedings in the criminal courts. In our view it was established that appellant’s guilty plea was entered with a sufficient understanding of its provisions and effect. It must be kept in mind that the trial court imposed the minimum sentence on each alleged offense under the terms of the habitual-criminal act. The appellant could have been sentenced to the maximum of 10 years on each of the four counts, or a total of 40 years, without applying the habitual-criminal act. Ark. Stat. Ann. § 41-1803 (Repl. 1964).

The appellant next contends for reversal “that no warrant was issued for the arrest of the appellant based on the information of the prosecuting attorney so that arrest of appellant was invalid as a matter of law.” Since appellant’s plea of guilty occurred seven years previously, no court records were available except the docket sheet and the information alleging the offenses. The appellant testified that no warrant was served upon him. This is immaterial inasmuch as the appellant admittedly appeared before the court and voluntarily pleaded guilty to the alleged offenses. His plea of guilty waived the asserted defect. It is well established that: “A plea of guilty waives any defect not jurisdictional, and which may be taken advantage of by motion to quash or by plea in abatement.” Williams v. State, supra, and Estes v. State, 246 Ark. 1145, 442 S. W. 2d 221 (1969). See, also, 22 C. J. S. Criminal Law § 316.

After a full review of the record in this Rule 1 evidentiary proceeding, we are of the view there was no violation of appellant’s constitutional rights.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Jack BAIN, D/B/A Bain & Co. v. Thelma DEAL et al
    5-5709
    475 S.W. 2d 708
    Opinion delivered February 7, 1972

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

      Spitzberg, Mitchell & Hays, for appellees.
   Carleton Harris, Chief Justice.

Appellees, Thelma Deal, and her grandsons, Larry D. Crissler and Kim D. Crissler, instituted suit against appellant, Jack Bain D/B/A Bain & Co., to recover the purchase price paid for stock in a domestic insurance company which subsequently failed. The complaint alleged that appellees purchased 50 shares of Class C stock in Mercury Life and Accident Insurance Company of North Little Rock from one of appellant’s agents, Louis C. Donoho, for $1,000.00, and the complaint alleged that Donoho “did employ a fraudulent and deceitful device, scheme and artifice and make untrue statements of material facts and omit to state material facts * * * and did engage in acts, practices and a course of business which operated as a fraud and deceit upon the plaintiffs” in selling them the stock. It was further asserted that the fraud was perpetrated and consummated in part by use of a deceitful circular, and that by virtue of the agency relationship “and also by virtue of having materially aided in the transaction beforementioned, the defendant Jack Bain, d/b/a Bain & Company, is liable for the fraudulent and tortious conduct of Louis C. Donoho”. In addition to the $1,000.00, the complaint also sought punitive damages in the sum of $10,000.00. Appellant moved to dismiss the complaint on the basis that the case was brought in the language and by the authority of Ark. Stat. Ann. section 67-1256 (Repl. 1966); that such action had to be brought within two years, and it was asserted that the cause was barred by the statute of limitations. As to a cause of action stated in common law fraud, the motion asserted that no cause was stated. On October 50, 1969, the court entered the following order:

“That the Complaint herein insofar as it attempts to state a cause of action under Arkansas Statutes Annotated 67-1256, is barred by the Statute of Limitations contained in that Statute.
The Court further finds that the Complaint herein does not state a cause of action under the law of Common Law Fraud in the State of Arkansas or a cause of action under any other Statutory or Common Law in the State of Arkansas.
THEREFORE, IT IS HEREBY ORDERED AND DECREED that the Complaint herein be dismissed unless within Ten (10) days of the date of this Order, the Complainant herein amend said Complaint to state a cause of action justifiable under the Laws of Arkansas.”

Thereafter, on November 5, appellees filed an amended complaint setting out in considerably more detail their allegations of common law fraud and the case subsequently proceeded to trial on the amended complaint and answer filed. At the conclusion of the trial, the court entered its judgment for appellees in the sum of $1,000.00 for damages resulting from the fraudulent sale, and finding that the sale was accomplished by:

“(1) fraudulent misrepresentations as to the book value of the securities involved; and (2) fraudulent misrepresentations as to the amount of profits realized by the company in dealing with Numismatic Securities.”

From the judgment so entered, appellant brings this appeal. For reversal, four points are asserted which we proceed to discuss in the order listed.

I

It is first argued that the claim was barred by the statute of limitations. At the outset, it becomes necessary to give the pertinent dates. The stock was purchased on june 3, 1965, and the suit was filed on March 29, 1968, more than two years from the time of the transaction, but less than three years. As previously stated, the court entered its order on October 30, 1969, holding that no cause of action was stated but giving appellees ten days in which to amend their complaint. It is not necessary that we determine whether the applicable statute of limitations is the three year statute or the five year statute, since we think it is clear that, under the court’s order, appellees had the right to amend their complaint — and the pleading filed was an amendment of the original complaint, rather than a new complaint.

From a practical standpoint, it might be mentioned that section 67-1256 clearly provides the statute of limitations to be two years, and it is not logical that a suit would be instituted under that section, when the statute itself shows such a complaint would be barred. Be that as it may, it would certainly appear, to say the least, that the complaint was not based entirely upon section 67-1256; though some allegations are similar to the wording of the statute, other language is used which is not included in the section. More importantly, relief is sought which is not authorized by section 67-1256; for instance, the complaint seeks punitive damages in the sum of $10,000.00, and punitive damages are not authorized by the section under discussion. At any rate, all of the allegations are consistent with a suit for common law fraud, though it is true that the original complaint appears to plead only conclusions. The amendment filed enlarges upon the general allegations of the first complaint, i. <?., they are made more specific, and we do not consider that the amended complaint states a new cause of action. In Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645, this court said:

“Appellant insists that the trial court erred in overruling the demurrer to the complaint and the amendment thereto and in refusing to direct a verdict in his favor. It is argued that the amendment to the complaint of October 2, 1950, not having been filed within three years from June 23, 1947, the date of the last payment alleged therein, was barred by the statute of limitations when filed because the amendment introduced a new cause of action to which appellant was entitled to plead the statute separately. In overruling this contention the trial court ruled that the amendment to the complaint did not constitute a new cause of action, but related back and became a part of the original complaint.
Our cases hold that where there is an amendment to a complaint stating a new cause of action or bringing in new parties interested in the controversy, the statute of limitations runs to the date of the amendment and operates as a bar when the statutory period of limitations has already expired. * * # If, however, the amendment to the complaint does not set forth a new cause of action, but is merely an expansion or amplification of the cause of action already stated, then the amendment relates back and takes effect as of the date, of the commencement of the original action. Little Rock Traction & Electric Co. v. Miller, 80 Ark. 245, 96 S. W. 993; Western Coal & Mining Co. v. Corkville, 96 Ark. 387, 131 S. W. 963.”

We find no merit in Point I.

II

It is next asserted that the court erred in finding that appellant had fraudulently misrepresented the book value of the stock. This assertion, along with a contention which will be discussed under Point III, actually challenges the sufficiency of the evidence to sustain the judgment.

Mrs. Deal testified that Mr. Don Donoho came to the cafe in Carlisle which she was operating, introduced himself, and explained that he was working for Bain & Company. She said that he told her that the stocks were making money; that it would be a good investment, and would double in two years. According to the witness, Mr. Donoho said that the stock was worth $24.00 a share; that Mercury Life was in sound financial condition and that it invested in Numismatic Securities. He handed her a circular regarding the stock and she stated that she relied on the printed and written matter set out in the circular in deciding to make the purchase. The printed circular states:

‘The future of the Life Insurance Industry appears exceptionally bright, and profits dealing in Numismatic Securities, as well as holding for growth, are fantastic. We believe this Company has good capable management with years of experience. Therefore at the present level (Below Book), we think this stock presents an attractive speculation, for a long term investment.”

As to the book value, Ben Larson, senior examiner for the Arkansas Insurance Department, a certified public accountant, testified that he computed the book value of the stock as being the difference between the assets and the liabilities divided by the number of shares outstanding, and he testified that this was the method generally used. He said that he had examined the annual statement of Mercury Life and Accident for 1965 and based on the formula that he used, he found the book value to be $1.46 per share. However, he made two other computations, under other formulas, and the greatest value per share that could be found as of December 31, 1965, was $7.94; the witness testified however that this last was not realistic because it did not account for non-recorded liabilities such as reserve requirements. Larson also testified that the company paid no dividends to stockholders, and that the net loss for that year was $113,000.00.

Louis A. Lanford, engaged in the investment business for years in Little Rock, testified that there was no market in June 1965 for Mercury Life and Accident stock among Little Rock brokers. The witness added that it necessarily did not mean it had no value, but that no broker would pay anything for it.

Mr. Bain, appellant herein, testified that Donoho was authorized to sell the stock for $20.00 per share, and he insisted that the book value of the stock was $24.00 per share. As to differences with Larson, he simply said that Larson computed the book value in one way and he computed it in another, stating that he was guided by Best Insurance Report. According to Bain, his accountant computed the book value by adding capital, surplus, the difference between assets and liabilities, and twice the annual premium income, and then dividing that sum by the number of shares outstanding.

It appears that Larson’s formula is the one generally accepted. In Am. jur. 2d Corporations, § 219, p. 748, it stated:

“The inconclusiveness of the term ‘book value’ standing alone without additional definition or support has been recognized in some cases. However, in some instances courts have in effect defined the book value of corporate stock in relatively brief and simple terms as the figure obtained upon dividing the amount of the difference between assets and liabilities by the total number of outstanding shares.”

In Jones v. Harris, 388 P. 2d 539, the Supreme Court of Washington said:

“The courts, of course, are not bound irrevocably to a single definition of ‘book value’. But, when a term that has a generally accepted meaning is used, the parties are hard pressed afterwards to claim their intent was otherwise. ‘Book value’ normally means the value of the corporation as shown on the books of account of that corporation, after subtracting liabilities.”

Likewise, in Schumann v. Samuels, 142 NW 2d 777, the Supreme Court of Wisconsin declared:

“The book value is not any arbitrary value that may be entered upon the books of the company but the value as predicated upon the market value of the assets of the company after deducting its liabilities.”

Certainly, there was substantial evidence to support the court’s finding that there were fraudulent misrepresentations as to the book value of the stock, and we find no merit in this Point.

Ill

Having found that the evidence supported the court’s finding that fraudulent misrepresentations had been made relative to the book value of the stock, there is no need for a lengthy discussion of the next contention which is that the court erred in finding that appellant had fraudulently misrepresented profits realized by Mercury Life from rare coin transactions. The circular, referred to under Point II, and in addition to what was said about Numismatic Securities in the previous quotation, states:

"First in State: To have official approval of Numismatic Securities, ‘Rare Coins’. The Company is a dealer in rare coins and in this operation alone netted over $1.00 per share profit in past year.”

According to Mr. Larson, the description in the circular describing profits in Numismatic Securities as “fantastic” was completely without basis, and Larson stated that not only were no profits realized from the company’s dealing in these securities, but actually the company experienced a negative income of $63,000.00. Mr...Bain stated that the circular was prepared by the late Hamilton Moses and he trusted the judgment of Moses who “had information on all companies”. He said that the information about Numismatic Securities was in national magazines and the Gazette and Democrat. Actually, Mr. Bain’s principal defense on both Points II and III was that if any misrepresentations were made, they were innocent statements, i. <?., based on misinformation rather than fraud. Even so, the defense would not be adequate, since it is certainly established that misrepresentations were made. In Miskimins v. The City National Bank, 248 Ark. 1194, 456 S. W. 2d 673, this court stated:

“We have clearly recognized long ago that there may be a cause of action for legal, or constructive fraud, even though there is a complete absence of any moral wrong or evil intention. Stewart v. Clark, 195 Ark. 943, 115 S. W. 2d 887. This type of fraud is based upon a breach of a legal or equitable duty which the law declares to be fraudulent because of its tendency to deceive others, regardless of the moral guilt, purpose or intent of the fraud feasor. Lane v. Rachel, 239 Ark. 400, 389 S. W. 2d 621; Levinson v. Treadway, 190 Ark. 201, 78 S. W. 2d 59; Bridges v. United Savings Association, 246 Ark. 221, 438 S. W. 2d 303. Representations are considered to be fraudulent when made by one who either knows them to be false, or, not knowing, asserts them to be true. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S. W. 2d 490; Maurice v. Chaffin, 219 Ark. 273, 241 S. W. 2d 257. It may involve a mere mistake of fact. Kersh Lake Drainage District v. Johnson, 203 Ark. 315, 157 S. W. 2d 39.”

In Kersh Lake Drainage District v. Johnson, supra, constructive fraud was discussed a little more fully as follows:

“The broadest classification of fraud is actual or constructive. To constitute positive or actual fraud, there must be such fraud as affects the conscience; that is, there must be an intentional deception. In other words, active and positive fraud includes cases of the intentional and successful employment of any cunning, deception, or artifice to circumvent, cheat, or deceive another. Constructive fraud, sometimes called legal fraud, is nevertheless fraud, although it rests upon presumption and rests less upon furtive intent than does moral fraud. It is presumed from the relation of the parties to a transaction or from the circumstances under which it takes place. The conscience is not necessarily affected by it. Indeed, it has been said that it generally involves a mere mistake of fact. Hence, the terms ‘constructive fraud’ and ‘legal fraud’ both connote that in certain circumstances, one may be charged with the consequences of his words and acts, as though he had spoken or acted fraudulently although, properly speaking, his conduct does not merit this opprobrium.’’

There was substantial evidence to support the finding of the court relative to Numismatic Securities.

IV

Finally, it is asserted that the representations of appellant were not the cause of any damages that Mrs. Deal sustained. This argument is based upon the fact that Mrs. Deal, after purchasing the stock in June 1965, redelivered it to Donoho in September 1965, at which time a promissory note was given from Donoho’s mining company. In other words, it is contended that Mrs. Deal sold this stock to Donoho. This was emphatically denied. Mrs. Deal testified that Donoho came to her, asking to .borrow the stock, and stating he needed it to invest it in more business. She said he borrowed the 50 shares and told her he would pay her 6% annually, and she further stated that the address given for the mining company was the same address given for Bain & Company. The note and loan agreement clearly refute the argument that the transaction was a sale. In fact, the instrument is rather unusual and possibly could be construed in several different ways. It does, however, refer to the “use” of the stock on two occasions. Mrs. Deal never did receive any benefits as provided in the note and loan agreement. Any any rate, the damage was sustained when she bought the 50 shares of stock; the loss of the $1,000 came at that time. Mr. Bain admitted that Donoho was a salesman for his company, sponsored by him, and licensed by the State Securities Division. It was admitted specifically that at the time Mrs. Deal purchased the stock, Donoho was authorized to sell stock in Mercury Life and Accident Insurance Company, and that he was authorized to sell it for $20.00 a share. These facts establish the agency of Donoho and there was substantial evidence to hold Bain liable. Mrs. Deal' and the grandchildren were damaged for the amount spent for the stock, $1,000, and there was no error in awarding this judgment.

Affirmed.

      Mr. Lhrson was not with the Insurance Department in 1965.

      According to this witness, Mercury subsequently merged with Community National “and they were put out of business in Tulsa, Oklahoma’’.


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

text:
    J. WEINGARTEN, INC. v. Jean THOMPSON
    5-5736
    475 S.W. 2d 697
    Opinion delivered February 7, 1972.

      Smith, Williams, Friday, Eldredge ir Clark, for appellant.

      Howell, Price, Howell & Barron; By: Richard J. Orintas, for appellee.
   George Rose Smith, Justice.

This is a slip-and-fall case arising from the appellee’s having fallen on December 20, 1969, in the appellant’s grocery store in North Little Rock. The jury awarded $2,400 damages to the plaintiff. The appellant’s only contention is that the trial judge should have directed a verdict in its favor.

There is no dispute about the law. The plaintiff, to recover, must show either that the presence of the object or substance which caused her fall was the result of the defendant’s negligence or that it had been on the floor for such a length of time that the defendant should have known of its presence and failed to use ordinary care to remove it. AMI (Civil) 1105 (1965). In this instance the appellee argues that there was substantial evidence to show that the object or substance had been on the floor for a sufficient length of time to support a finding of a negligent failure to remove it.

Mrs. Thompson, the plaintiff, was carrying her infant granddaughter when she fell. She testified that as she was walking down an aisle in the store her feet flew out from under her. She observed a green or dirty looking liquid that was smeared or tracked on the floor. “It looked green or dirty. I just assumed it was a green liquid detergent. I don’t know. But there was quite a large puddle of it there.” She indicated that the area of the puddle was less than four feet.

Mrs. Brust, another customer in the store, saw Mrs. Thompson fall. This witness said that “the only impression I have of what was on the floor it just appeared to me just — like something from the vegetable counter. Leafy. Kind of old green color, and her foot had slid through or something had slid through it.” She said that the leaf was dark green, almost blackish green. The produce counter was pretty far away from the scene of the fall.

Bill Wilkins, the manager of the store, testified that the floor was stripped and waxed with a non-slip wax once a week, on Monday night. (The accident was on Saturday afternoon.) During the week two maintenance men, working on successive shifts, were instructed to sweep, spot mop, and buff the floor throughout the day. The main job of the two men was to take care of the floor. In addition, all the employees were instructed at monthly meetings to see that anything broken or dropped was cleaned up. Wilkins testified that after the accident all he saw on the floor was a spot about the size of a quarter, where someone had spat on the floor. He also testified that a green vegetable, such as lettuce, would have to be on the floor at least two days for it to turn a dark color.

We find the evidence sufficient to support the verdict. Mrs. Brust, unlike the plaintiff and the store manager, was apparently a completely disinterested witness. The jury were free to accept her statement that the plaintiff slipped on a dark green leaf, at some distance from the produce counter. According to the manager, such a leaf must have been on the floor for at least two days.

The manager’s other testimony did not necessarily overcome the plaintiff’s prima facie case. The manager merely outlined the instructions that he customarily gave his staff. He did not state as a matter of personal knowledge that the floor had been swept within two days before Mrs. Thompson’s fall. In fact, no one so testified, as neither of the maintenance men was called as a witness. We should evidently have to pass upon the credibility of the witnesses to overturn this verdict. That is not within our province.

Affirmed.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, justice,

dissenting. I cannot agree that the question presented to us is one of credibility of witnesses or that the question presented to the circuit judge on motion for a directed verdict required any consideration of credibility. Appellee offered one version of the occurrence which did not give any indication that the “puddle” had been on the floor for any substantial length of time, as would be required for recovery. Her testimony did not make any showing that appellant was negligent. Jackson v. Hemphill, 245 Ark. 699, 434 S. W. 2d 818; Moore v. Willis, 244 Ark. 614, 426 S. W. 2d 372. This version is not even sufficient to make a jury question under the holding in Menser v. The Goodyear Tire and Rubber Company, 220 Ark. 315, 247 S. W. 2d 1019, where the substance looked like floor wax, and it appeared that someone had either tried to apply it or remove it.

On the other hand, the witness called by appellee gave an entirely different description of the foreign substance on the floor, which, coupled with the testimony of the store manager, presented a jury question as to negligence and liability. Still, this version, completely inconsistent with appellant’s, is no more probable than that recited by appellee, juries should not be permitted to speculate as to the proximate cause of an injury in choosing between two equally probable causes. Turner v. Hot Springs Street Ry. Co., 189 Ark. 894, 75 S. W. 2d 675. Where the testimony leaves the matter uncertain and shows that any one of two or more things may have caused an injury, for one of which the defendant would be liable and the others he would not, there can be no verdict for the plaintiff. Missouri P. R. Co. v. Hampton, 195 Ark. 335, 112 S. W. 2d 428. When evidence is consistent with either of two inconsistent hypotheses, it tends to prove neither. Stambaugh v. Hayes, 44 N. M. 443, 103 P. 2d 640 (1940); N. L. R. B. v. Standard Oil Co., 124 F. 2d 895 (10th Cir. 1941); Bussman v. N. L. R. B., 111 F. 2d 783 (8th Cir. 1940); P. F. Collier & Son Co. v. Hartfeil, 72 F. 2d 625 (8th Cir. 1934); 32A C. j. S. 819, Evidence § 1042. When a plaintiff produces evidence consistent with a hypothesis that defendant is not negligent and also offers evidence consistent with a hypothesis that he is, the proof establishes neither. Gunning v. Cooley, 281 U. S. 90, 50 S. Ct. 231, 74 L. Ed. 720 (1930).

I respectfully dissent and would reverse the judgment.

I am authorized to state that Mr. Justice Jones joins in this dissent.


author: George Rose Smith, justice.

text:
    Lawrence Jo Jo SCOTT v. STATE of Arkansas
    5667
    475 S.W. 2d 699
    Opinion delivered February 7, 1972

      Louis W. Rostech, for appellant.

      Ray Thornton, Attorney General; James A. Neal, Asst. A tty. Gen., for appellee.
   George Rose Smith, justice.

In the court below, charges of rape and assault with intent to kill were tried together by the circuit judge, without a jury. The appellant was found guilty of both offenses and was sentenced to life imprisonment upon the charge of rape and to twenty-one years imprisonment upon the second charge.

The appellant first questions the sufficiency of the evidence to support either conviction. Before narrating the proof we should explain that the State was handicapped in presenting its case by its inability to produce an eyewitness to either crime. The victim of the asserted rape was a two-year-old child, too young to testify. The victim of the assault was the child’s father, Tal Daniell, but he was killed in an automobile accident before the case was tried.

On the afternoon of August 16, 1970, witnesses saw Scott (the defendant), Daniell, and the child leave Sims’ Cafe, near Little Rock, in a truck. The three were seen a short time later at the nearby home of Scott’s aunt, Dora West, who testified that Scott made an effort to sell a tire to Daniell, but the tire offered was not the right kind. Mrs. West also testified that a .25-caliber pistol owned by Scott was still in a drawer in her house when the officers came to investigate later that day.

The sequence of events is not completely clear, but apparently Scott was next seen in the neighborhood at the home of Mrs. West’s daughter, Essie Duff. Mrs. Duff testified that while she was sitting in her yard Scott went in her house, came out again, and left. Mrs. Duff’s sister had put a .S8-caliber pistol in a drawer in Mrs. Duff’s house, but Mrs. Duff testified that Scott did not know the weapon was there, nor did she see that Scott was carrying anything when he left.

Back at Sims’ Cafe, about thirty minutes after Scott and the other two left in the truck, bystanders at the cafe heard a shot down in the woods. Daniell and his daughter then drove up in the truck. Daniell was calling for help, saying that he had been shot (though the proof does not show what part of his body was hit). The child was standing up in the truck with blood running down both her legs. Later that afternoon Mrs. West talked to Scott by telephone and, with his consent, picked him up and turned him over to the deputy sheriffs, who were looking for him. Scott’s sister testified that when she visited him at the jail that night Scott said that he had not touched the little girl. He also said that while he and “the man” were tussling, “the gun went off,” which so scared Scott that he left the truck and ran away.

That same night the officers obtained the .38-caliber pistol that Essie Duff’s sister, Elsie Harris, had left at Mrs. Duff’s house. The pistol was in the drawer where it was kept, fully loaded except that one shot had been fired. Mrs. Harris testified that she had not fired the pistol. An officer testified that the weapon smelled as if it had been recently fired. The officers found a .38-caliber bullet lodged in the cab of the truck, but it was too extensively damaged to be identified as having come from any particular gun.

We find the proof insufficient to support a conviction for assault with intent to kill. The evidence to sustain such a charge must show a specific intent to kill. Francis v. State, 189 Ark. 288, 71 S. W. 2d 469 (1934); Davis v. State, 115 Ark. 566, 173 S. W. 829 (1914). In the case at bar the State’s proof is fatally deficient in that respect. Since we are remanding the case for a new trial, for other errors, we shall not speculate upon what lesser included offense might be sustained by the proof.

On the other hand, we find the evidence sufficient to sustain a conviction for rape. The child’s vaginal area was so severely lacerated that Dr: Porter had to examine her by means of a general anesthetic. The laceration had bled profusely. Dr. Porter stated that the entrance to the vagina suggested that the laceration was not large enough to have admitted a penis, but an attempt at entry might have been made, causing the injuries. The injuries might also have been caused by any other object, including a finger, or by a fall. There was testimony by the officers that when Scott’s undershorts were removed that night they were stained with what appeared to be freshly dried blood. It is immaterial that the clothing in question had been misplaced by the officers and could not be introduced in evidence, for a witness may describe a tangible object even though it is not physically present in the courtroom. Washington v. State, 248 Ark. 318, 451 S. W. 2d 449 (1970). Upon a charge of rape, proof of the slightest penetration is sufficient. Cabe v. State, 182 Ark. 49, 30 S. W. 2d 855 (1930). Here we find the proof adequate to sustain the conviction.

The judgments, however, must be reversed for another reason. At the time of his arrest Scott was duly warned of his constitutional rights and refused to make any statement. About three months later a deputy sheriff who was passing the cell where Scott was confined asked him, in the course of what appears to have been a bantering conversation, if he had raped the little girl. Scott replied, “Yeah.” The trial court allowed proof of that question and answer and evidently attached some weight to it.

The evidence should have been excluded. In Miranda v. Arizona, 384 U. S. 436 (1966), the court stressed the fact that any waiver of the accused’s constitutional right to remain silent and to have the assistance of counsel must be made “voluntarily, knowingly, and intelligently.” In that connection the court went on to say:

‘The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.

Á confession made by a person in custody is presumed to have been involuntary. Harris v. State, 244 Ark. 314, 425 S. W. 2d 293 (1968). We certainly cannot say that the warning given to Scott some three months earlier had the effect of demonstrating that his admission to the officer was made voluntarily, knowingly, and intelligently, with a conscious awareness that it might be used against him. Hence, under Miranda, that proof should have been excluded.

Finally, when the defense rested its case without Scott’s having testified, the trial judge stated that he was going to find Scott guilty and “give him life on the rape and twenty-one years on the assault to kill and let them run concurrently.” The court then, over the objection of counsel, encouraged Scott to take the witness stand and give his explanation of the matter. After some further colloquy between court and counsel, Scott took the stand and gave a rather implausible exculpatory version of what had happened. Since we are reversing the judgment for another reason, we need not say whether the court’s action would by itself have required a reversal of the conviction now under review. It is manifest, however, that Scott’s testimony can be said to have been voluntarily given only in the sense that he hoped to make a favorable impression upon the very judge who had already announced his finding of guilty and his intended sentence. Consequently Scott’s testimony cannot be considered for other purposes and therefore cannot be used by the State upon a retrial of the case.

Reversed and remanded for a new trial.


author: Lyle Brown, Justice.

text:
    Billy Ray LEMLEY, Sr v. Mrs. C. C. FRICKS, Sr. et al
    5-5702
    475 S.W. 2d 702
    Opinion delivered February 7, 1972

      Guy Jones, Tackett, Moore, Dowd ir Harrelson and Youns; ir Patton, for appellant.

      Wheeler, Watkins, Hubbard, Patton ér Peek, Charles C. Wine, Arnold & Arnold and Atchley, Russel, Russell, Hutchinson & Waldrop, for appellees.
   Lyle Brown, Justice.

Jack Lemley, a minor, was injured and his brother, Billy Ray Lemley, Jr., was killed while transferring propane fuel from a master tank to the tank on their father’s truck. The father, appellant here, brought this action to recover damages from Mrs. C. C. Fricks, Sr., d/b/a Fricks Butane Company, Sam Fricks, Phillips Petroleum Company, Union Petroleum Corporation, and Shell Oil Company. The jury absolved appellees of fault and judgment was accordingly entered against plaintiff-appellant’s claims. After the trial, appellant discovered that one of the jurors was the husband of a receptionist in the office of one of the firms representing appellees. That fact was brought before the court in a motion for new trial. After hearing all the evidence proffered the court overruled the motion and that action is the sole ground urged here for reversal.

Unfortunately the examination of jurors to determine their qualifications to serve in the instant case was not recorded.

An array of attorneys participated in the trial and most of them made statements for the record at the hearing on the motion for new trial. Boyd Tackett and Nicholas H. Patton appeared for appellant. William L. Peek, Jr., Charles C. Wine, Thomas S. Arnold, and Victor Hlavinka, engaged in the trial for the various appellees. The crux of the problem before the court at the hearing was to determine whether questions propounded to the jurors on voir dire were such as should have put juror Raymond Wheelington on notice that he was duty bound to reveal that his wife was a receptionist in the office of the Wheeler law firm, of which Mr. Peek is a member.

Attorneys Tackett and Patton were the spokesmen for appellant at the hearing. Mr. Patton could not remember specific questions asked but “I do recall asking several questions that would go to any possible association of the jury with the various law firms, and I do recall asking specifically if the jury knew anything, which was unknown to the plaintiff’s attorneys that might bias or prejudice the jury in any respect.” Mr. Tackett said that no member of his firm knew of Mrs. Wheelington’s connection with the Wheeler firm and that had they such knowledge her husband would have been peremptorily challenged. It was Mr. Tackett’s recollection that Mr. Peek asked if any juror had any relationship with any member of the Tackett firm. He also said that he stood by Mr. Patton as the latter questioned the jurors. “When Mr. Patton asked all the general questions I requested him to ask the jury panel whether there was any business relationship with the members of the Wheeler law firm, the firm in which Mr. Peek was associated. Questions were also asked about business relationships of the jury panel regarding the other attorneys. When these questions were asked I requested Mr. Patton to ask if there was anything known to any member of the jury unknown to us that would cause them to be biased or prejudiced or would cause us to start off behind any of the other attorneys that might be involved. Nobody answered the question.” Mr. Tackett insisted that with the nature of the questions propounded both by Mr. Peek and Mr. Patton the juror should have known to have revealed his wife’s connection. It was also Mr. Tackett’s opinion that Mr. Peek should have volunteered the information.

Mr. Peek said that he knew Mr. Wheelington but that there was no personal relationship in any way; that as far as he knew, the man had never been in his office; that Mrs. Wheelington had been a receptionist for a little over a year; that Mr. Wheelington was a close friend of two members of the Tackett firm; that he felt the firm knew of Mrs. Wheelington’s employment because her name was listed, together with her employment, in the city directory; that her listing is just under the listing of the Wheeler firm; that he did not recall any questions being asked which apprised the juror that he should relate his wife’s connection. He did not recall any questions being asked which were calculated to cause the juror to respond about his wife’s relationship with the Wheeler firm.

Attorney Tom Arnold stated that he did not recall any question which called for the disclosure. Attorney Victor Hlavinka stated his only recollection to be that questions were asked the jurors concerning representation of prospective jurors by the defense firms.

With respect to the listing in the city directory, which was conceded, Attorneys Tackett and Patton said they never used the directory to check jury lists. Mr. Patton said they had the directory in their office but Mr. Tackett was not aware of it.

An affidavit by juror Wheelington was introduced. He said the only inquiry he recalled was whether “any of such law firms were representing any of us at the present time on pending litigation.” He said he specifically recalled that no inquiry was ever made which called for his reporting his wife’s employment. He said he was a close friend of three of the attorneys represen ting appellant and had been a close neighbor to one of them; consequently he felt that they were aware of his wife’s employment.

The trial court evidently took the matter under advisement. The hearing was held on March 15, 1971, and the order was March 26, 1971. That order simply said that “the motion for new trial filed on behalf of the plaintiffs in the above styled cause is hereby denied.”

Appellant entered the hearing on the motion with the burden of first establishing that diligence was used to ascertain the desired information. Arkansas State Highway Comm’n. v. Kennedy, 233 Ark. 344, 349 S. W. 2d 132 (1961). It was also his burden to show that he made known to the juror the specific information desired. Patton v. State, 189 Ark. 133, 70 S. W. 2d 1034 (1934). It can hardly be disputed that the evidence was conflicting on both scores. Appellant’s witnesses recalled that questions were asked the jurors touching their social or business associations with any of the lawyers in the case. Appellees’ witnesses said that questions were asked the jurors about their being represented by any of the attorneys and no more. The juror was of the sáme impression. It was shown that the current city directory listed Mrs. Wheelington’s occupation and that a copy of that directory was in the office of the Tackett law firm; on the other hand Mr. Tackett and Mr. Patton said they never used the directory to check jury lists. In the face of conflicting evidence the trial court had to find either (1) that due diligence was not shown by the complaining party, or (2) that it was not satisfactorily established that a specific question calling for a response by juror Wheelington that his wife worked for the Wheeler firm, was asked. Since there was substantial evidence to support either or both findings— or at least that appellant had not met his burden — we are not permitted to invade the judgment of the trial court.

Finally, we express no opinion of the result had a statutory disqualification been shown.

Affirmed.


author: John A. Fogleman, Justice. Carleton Harris, Chief Justice,

text:
    Doris Ann DIXON (now Whitaker) v. Francis Joe DIXON
    5-5737
    475 S.W. 2d 695
    Opinion delivered February 7, 1972

      Hardin, Jesson ir Dawson, for appellant.
    No brief for appellee.
   John A. Fogleman, Justice.

Appellant was granted an absolute divorce from appellee- on December 4, 1959. She was awarded custody of their three minor children. Appellee was directed to pay the sum of $25 per week for the support of these children. The oldest child, a daughter, attained her majority and married. The remaining two are sons, aged 14 and 12 at the time of the decree from which this appeal is taken. This decree was entered upon appellant’s petition for an increase in the amount of child support because of alleged changes in circumstances and appellee’s responsive prayer for a reduction in child support because there remained only two children entitled to support by him.

The changes of circumstances alleged were that $25 per week was inadequate for the support of the two boys at their present ages and that appellee’s present income was such that he was now able to pay a larger amount. The chancellor denied the requests of both parties, directing that appellee continue his weekly payments in the amount of $25 and permitting him to claim the two sons as dependents on his income tax return. Appellant’s sole point for reversal is that the chancellor erred by denying an increase in the amount of support payments. We affirm because we cannot say that the court’s action in this respect was against the preponderance of the evidence.

The facts were stipulated. Appellee had. a gross income of less than $4,000 in 1959. His gross income amounted to $7,616 in 1970. Except for undisputed facts earlier recited, this was all the evidence on the material facts. The parties stipulated that the only issue was whether the circumstances have materially changed so as to warrant an increase in child support and, if so, the amount of such increase.

There is no evidence about the present cost of the support of these boys, or concerning the appellant’s income or property, either presently or at the time of the divorce. There is no evidence as to appellee’s financial condition, his condition of health or his present family obligations and no comparison of his cost of living or tax liability. We are urged to increase the chancellor’s award according to the necessity of the children and the ability of the father without any adequate basis for comparison of these factors now and at the time of the divorce. We are quite willing to recognize that the cost of the support of these two boys was substantially greater in 1971 than in 1959, both because of the difference in their ages and increases in cost of living in that interval. With no more information than we are afforded, we are unable to say that there is a clear preponderance of evidence warranting more than the chancellor allowed, i. e., the continued payment of $25 per week for the support of two children rather than three.

The decree is affirmed.

Harris, C. J., dissents.

Carleton Harris, Chief Justice,

dissenting. I am firmly of the opinion that, under the stipulation entered into by the parties, it is shown that circumstances have materially changed so as to warrant an increase in child support. The two minor boys are now of the ages of 14 and 12 respectively. Of course, their needs are far greater than when they were only 2 and 1M years of age respectively (their ages when appellant and appellee were divorced). So — there has certainly been a change of circumstances in that respect. It was also stipulated that appellee only earned something less than $4,000.00 in 1959, the year of the divorce, as compared to $7,616.00 during 1970. There again is an obvious change from original conditions. The fact that these children are now 12 years older than they were when the divorce decree was granted and the further fact that the father now earns nearly twice as much as he did at the time of the divorce, are, as far as I am concerned, sufficient circumstances to warrant an increase in support payments.

I therefore respectfully dissent.


author: John A. Fogleman, Justice.

text:
    Steve A. WILSON v. THURSTON NATIONAL INSURANCE COMPANY
    5-5777
    475 S.W. 2d 881
    Opinion delivered February 7, 1972

      Jones & Segers, for appellant.

      Putman, Davis ir Bassett, for appellee.
   John A. Fogleman, Justice.

Appellant brought suit against appellee to recover for an alleged mysterious disappearance of a woman’s diamond ring and other items of jewelry from his home at 833 West Sycamore in Fayetteville. Appellee’s policy insuring against theft and mysterious disappearance of personal property was issued on August 31, 1968, and was in full force and effect at the time of the alleged loss. This appeal comes from a judgment based upon a jury verdict against appellant.

At the time of the alleged loss, appellant was married to Judith Wilson. They were having marital difficulties, and appellant took their minor child to Pennsylvania so that he could counsel with relatives. While in Pennsylvania, appellant received a call from his wife advising him of tíre loss of the jewelry. He said that he instructed her to tell anyone who needed to be told about the loss. He testified that the call came on July 23. He returned to Fayetteville on July 30. He said that he and his wife then went to the police station in Fayetteville and submitted a list of the missing items. Appellant had last seen the jewelry in a dresser drawer in his home when he left Fayetteville on July 15 or 16.

The principal item involved was the diamond ring, alleged to be of the value of $2,500. Appellant had given the ring to his wife. All of the jewelry belonged to her. He claims the right to recover under the terms of a property settlement with his wife incident to a divorce granted September 9, 1970. A previous loss of the ring had been reported, but the ring was recovered before any claim was paid.

Judith Wilson testified about the loss. She said that she lived at the Sycamore address with her husband and a friend named Sue Koppa. She thought the jewelry was stolen on July 22, 1970. On that night, she made her home available through a committee to anyone attending a “rock” concert at the University of Arkansas. She said that she did not stay at home that night, but spent the night with this same Sue Kóppa at the latter’s house on Oakland Street. She testified that she returned home the next day, discovered the loss, reported it to the police and her husband, checked several pawn shops and tried to ascertain the names of persons who might have stayed at her home. She said that friends visited the Wilson home frequently.

Appellee denied liability under the terms of the policy, and alleged that the contract was breached by the insured’s failure to give it and the police prompt notice and to name the persons visiting in the home at the time of the disappearance of the jewelry.

Appellant’s first point for reversal is based upon interrogation of Judith Wilson on cross-examination about her associates and their use of drugs. Without detailing her testimony, we can say that it had an important bearing upon the critical issues, i. e., whether there was a mysterious disappearance of the jewelry under the terms of the policy, whether the matter was timely reported and whether she, as the owner of the property and an insured under the policy, had cooperated with the police. Some of her testimony was in direct conflict with that of police officers who testified. She was the only person who knew anything of the circumstances pertaining to the disappearance of the jewelry. As a result, her credibility may well have been the most important matter for jury consideration.

While appellant asserts that the court’s error lay in admitting Judith Wilson’s testimony about use of drugs by her and her associates, we do not take this to be the only effect of the cross-examination and the court’s rulings. Before the interrogation of which complaint was made, the witness had, on direct examination, represented her open-end offer of a night’s lodging to whoever among the hundreds of concert attendants might accept to be similar to that extended when a church brings visitors to town. On cross-examination she explained her actions by saying that she was a Christian and a good person, that a Christian loves and trusts people and that she trusted the unknown young people who would be coming to her house. She analogized the situation to the occasions when, as a Girl Scout, a complete stranger who was also a Girl Scout came to town and stayed with her. Thereafter, appellee’s attorney commenced a course of inquiry about possible visitors to the Wilson house. The witness identified David Peters as one of her friends and Ron Kirby as another. She denied knowing Roger Dowell, but admitted knowing Joe Sanders, while disclaiming him as a friend.

After she stated that the Wilson house was open to her friends, the witness responded in the negative to inquiries whether her friends had used drugs there. The court sustained objections to questions whether some of these friends had been arrested for illegal possession of drugs, and whether they were convicted on such a charge. After an objection to a question whether David Peters, Ron Kirby and Sue Koppa had been known to use drugs had been overruled, she responded that they had. She also answered in the affirmative an inquiry whether she had used drugs, after an objection had been overruled. She then stated that she may have used drugs once before the “theft,” but her objection to a question about the kind of drugs was sustained.

Of course, because of lack of prejudice, reversible error cannot be predicated upon those questions to which the witness gave negative answers or the court sustained objections without any answers having been given. Leonard v. State, 106 Ark. 449, 153 S. W. 590; Carr v. State, 81 Ark. 589, 99 S. W. 831. This leaves only the questions and answers with reference to the witness’ use of drugs and her knowledge of the use of drugs by her acquaintances. We have long recognized that a wide latitude of cross-examination should be permitted to elicit facts contradicting the witness’ direct testimony or impeaching his credibility. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S. W. 2d 795. Undue limitations imposed by the court constitute an abuse of discretion. Washington National Insurance Co. v. Meeks, 249 Ark. 73 (1970), 458 S. W. 2d 135. The trial court’s exercise of discretion will not be disturbed on appeal unless there is an abuse. Clark v. State, 246 Ark. 1151, 442 S. W. 2d 225. It is proper to permit inquiry of a witness as to his residence, habits, antecedents and associations. Willis v. State, 220 Ark. 965, 251 S. W. 2d 816; Rayburn v. State, 200 Ark. 914, 141 S. W. 2d 532; Schooley v. State, 176 Ark. 895, 2 S. W. 2d 67; Benton v. State, 78 Ark. 284, 94 S. W. 688; Little Rock Vehicle & Implement Co. v. Robinson, 75 Ark. 548, 87 S. W. 1029. Most of the inquiries to which objection was made are collateral, so further pursuit of the matter, particularly the introduction of contradictory evidence, would have been foreclosed, but no such attempt was made here, so Ark. Stat. Ann. § 28-707 (Repl. 1962) is not applicable. There was not at any time any objection on the ground of self-incrimination.

In view of the fact that the witness’ credibility was probably the most critical factor in the case and the manner in which she characterized her own actions, we cannot say that the trial judge permitted too much latitude in cross-examination. We certainly could not say that he abused his discretion.

Appellant also contends that there was reversible error in permitting Bill Brooks, a police officer, to testify by deposition that he received a telephone call from Mrs. Wilson on July 23, 1970, reporting the loss of the jewelry, without stating that he could identify her as the caller. This testimony was introduced by appellee after Mrs. Wilson had testified that she telephoned the police on that day, but did not recall the name of the policeman to whom she talked. The principal difference in the testimony of the two witnesses lay in her statement that she did not know the names of the people who might have spent the night in her house or the identity of workmen at labor on a nearby water line, and the officer’s statement that the caller first said that she thought she knew who stayed at the house but declined to give their names and later said that she did not spend the night there and did not know their names. Officer Brooks also testified that the caller stated she preferred that no one come to the house to investigate. Mrs. Wilson had denied making any such statement. Identification of the caller by voice is not necessary, if there is sufficient circumstantial evidence identifying the parties to the conversation. Wimberley v. State, 217 Ark. 130, 228 S. W. 2d 991. We think the circumstances related were sufficient to justify permitting this testimony to go to the jury.

The next ground for reversal argued by appellant has to do with the admission in evidence of the report of Mrs. Wilson’s complaint made and filed by Officer Brooks at the time of the call. He relies upon our holding that a police report of an automobile accident made by a state policeman who merely investigated after the incident had occurred is inadmissible as hearsay. See Southern Farm Bureau Ins. Co. v. Reed, 231 Ark. 759, 332 S. W. 2d 615. The analogy is not apt. There the report was admittedly secondhand information from random or unidentified sources, and neither the informants nor the officers were available for cross-examination. Here, the report was made by the officer as an official police department record of the complaint, and the matters stated therein lay wholly within his personal knowledge, about which he was cross-examined. Furthermore, even though the report was made an exhibit to the officer’s testimony and introduced as an exhibit, it was used primarily to refresh his recollection of the call and complaint. The report did not differ from Brooks’ testimony in any material particular. Even if there was error in its introduction, it was harmless.

Appellant also contends that the circuit judge erred by giving the following instruction:

You are instructed that the mere disappearance, without mysterious circumstances of an article covered by the policy is not sufficient of itself to warrant a finding that the loss was due to theft, larceny or burglary within the terms of the policy of insurance in question.

The insurance policy included a rider entitled “extended theft coverage” under the following definition:

Theft, meaning any act of stealing or attempt thereat, or mysterious disappearance (except mysterious disappearance of a precious or semi-precious stone from its setting in any watch or piece of jewelry).

Appellant now argues that this instruction placed the burden upon him to prove that the jewelry was stolen and how it was stolen. While we do not so construe this instruction in the light of the policy language before the jury and in the light of other instructions given by the court, appellant did not make his present objection to the instruction when it was offered. His objection was general, and would be sufficient only if the instruction was inherently erroneous. Decker v. Gibbons, 250 Ark. 1045 (1971), 468 S. W. 2d 252. We cannot say that this instruction was inherently erroneous under the circumstances existing.

The judgment is affirmed.

      A general objection to an instruction is not permitted in trials after December 31, 1971. See Rule XIII, Uniform Rules for Circuit and Chancery Courts, adopted by per curiam order of October 25, 1971.


author: J. Fred Jones, Justice.

text:
    Carol A. FOUGHTY v. Dorothy DOWNS
    5-5747
    475 S.W. 2d 692
    Opinion delivered February 7, 1972

      Floyd J. Lofton, for appellant.

      Cockrill, Laser, McCrehee, Sharp if Boswell, for appellee.
   J. Fred Jones, Justice.

The plaintiff-appellant Carol A. Foughty filed suit in the Pulaski County Circuit Court against the defendant-appellee Dorothy Downs for personal injuries and property damage growing out of an intersection collision at Markham and Spring Streets adjacent to the Pulaski County Court House in Little Rock. The jury question at the trial turned on whether the appellant or the appellee violated the traffic control signal light at the intersection, and the jury returned its verdict for the appellee Downs.

After the verdict was returned and judgment rendered thereon, the appellant filed a motion for a new trial based on the allegation that while the trial was in recess for lunch, one of the petit jurors visited the scene of the accident and conveyed back to the other jurors certain information obtained from observation of the traffic light at the intersection. A hearing was had on the motion at which time Mrs. Inez Mercer, one of the petit jurors, testified that when the jury retired to consider its verdict, one of the jurors stated that during the noon recess he went downstairs and looked at the scene of the collision and stated to the other members of the jury that the lady must have seen the directional arrow and not the red light. She testified that the other members of the jury commented on the remark.

The trial court denied the motion for a new trial and on appeal to this court the appellant relies on the following points for reversal:

“The court erred in refusing to grant appellant a new trial based upon the fact that one of the petit jurors viewed the scene of the accident without the permission of the parties and without being supervised by the Court.
That said extra-judicial evidence was prejudicial to the appellant and she is entitled to a new trial.”

The appellant argues that she was prejudiced in her cause of action by the extra evidence going to the jury through one of its members as above set out. The appellee argues that the appellant failed to show any prejudice by the one juror’s observation of a situation so close to the court house that none of the jurors were likely to be unfamiliar with the traffic light at its particular location. The appellee also argues that it was within the sound discretion of the trial court to deny a motion for a new trial and that the trial court did not err in the abuse of its discretion in this case.

We agree with the appellee that the trial court did not err in denying the appellant’s motion for a new trial, but for the better reason set out in Ark. Stat. Ann. § 43-2204 (Repl. 1964), which is as follows:

“A juror cannot be examined to establish a ground for a new trial; except it be to establish, as a ground for a new trial, that the verdict was made by lot.”

Although this section is compiled under the title of criminal procedure, it applies to civil cases as pointed out in Scott v. Shairrick, 225 Ark. 59, 279 S. W. 2d 39, and the cases cited therein at page 67 of the Arkansas Report.

The judgment is affirmed.

Fogleman, J., not participating.


author: Conley Byrd, Justice.

text:
    Herman L. REID et al v. FORD, BACON & DAVIS CONSTRUCTION CORPORATION
    5-5743
    475 S.W. 2d 694
    Opinion delivered February 7, 1972

      Whetstone ¿r Whetstone, for appellants.

      Shackleford & Shackleford, for appellee.
   Conley Byrd, Justice.

Appellant Herman L. Reid was employed by appellee Ford, Bacon and Davis Construction Corporation in 1964 to drive a bus transporting fellow employees to pipeline construction sites. Following an acident on November 24, 1964, in which 26 employees were injured, Reid was sued by appellants James Q. Bryan and Gratha Bryan, his wife, who obtained still unsatisfied judgments of $75,000 and $10,000 for Bryan’s injuries. Appellee’s liability insurer refused to defend Reid because its policy specifically excepted from coverage employees injured by another employee in the course of his employment. This refusal was upheld in the federal district and circuit courts, as mentioned in Bryan v. Ford, Bacon & Davis, 246 Ark. 327, 438 S. W. 2d 472 (1969), a workmen’s compensation case.

In this case, filed Sept. 19, 1967, appellants urge that appellee is liable to Reid, the bus driver, and Bryan, his judgment creditor, on account of its breach of duty to either provide insurance to the bus driver or to inform the bus driver in advance that he had no such coverage. Appellee’s motion to dismiss was granted in federal district court and on appeal to the Court of Appeals was remanded to Union Circuit Court for jurisdictional defects. Thereafter the trial court dismissed the complaint for failure to state a cause of action.

The basic allegation is that Reid, an employee, driving an ancient bus over rough and dangerous terrain, would be liable to his fellow employee-passengers for simple negligence in driving, a danger which he should be protected against or forewarned about. In making their assertions, appellants cite no authority.

Our legislature over the years has passed a great many protective laws, shielding Arkansas employees from many known dangers. However, the General Assembly has not seen fit to provide any legislative shield against the financial danger of which appellants complain. The General Assembly has not, and we can not.

Affirmed.


text:
    ARKANSAS STATE HIGHWAY COMM’N v William I. LUSBY et ux
    5-5732
    475 S.W. 2d 707
    Opinion delivered February 7, 1972

      Thomas B. Keys, Hubert E. Graver and James N. Dowell, for appellant.

      Joe M. Fore, for appellee.
   Frank Holt, Justice.

This is an action in eminent domain brought by the appellant against appelleeslandowners for the acquisition of 19.06 acres from a 111-acre tract and .72 acre from a 2.42-acre tract for the construction of Interstate Highway No. 30 and its facilities. The jury awarded appellees $22,500 as just compensation.

For reversal of the judgment appellant first asserts that the value testimony of one of the appellees’ expert appraisers incorporated an impermissible element of valuation. Appellant argues that it was error for this expert appraiser to attach any significance to the fact that the construction of the interstate highway would require the landowners to travel a more circuitous route between their property and the City of Prescott. The expert witness testified that the appellees’ property joined the city limits of Prescott; that subsequent to the condemnation the county road located south of appellees’ house was severed; that appellees must now travel one-half mile west and one-half mile south to reach Highway No. 24; that as a result, access to appellees’ property is one mile further from Prescott than it was prior to the condemnation; and that the increased travel distance from Prescott would make the property less desirable and would reduce the market value.

It is a well-settled rule of law that the alteration of a highway which imposes circuity of travel on the general public is not a compensable damage. Wenderoth v. Baker, 238 Ark. 464, 382 S. W. 2d 578 (1964). However, when there is a partial taking of land and the landowner is inconvenienced by the taking of his ingress and egress to the remainder, as here, that inconvenience is compensable and should be considered in assessing the landowner’s damages. Arkansas State Highway Comm’n. v. Coffman, 251 Ark. 590, 473 S. W. 2d 873 (1971). See, also, Arkansas State Highway Comm’n. v. Lemley, 250 Ark. 186, 464 S. W. 2d 605 (1971). We find no merit in appellant’s contention that appellees’ value witness considered an impermissible element of valuation.

Appellant next contends that the verdict is not supported by substantial evidence and is excessive. In support of this contention the appellant argues only “three areas of unsubstantiality in the testimony of Mr. Brown,” one of appellees’ expert witnesses; namely, (1) the failure of this witness to itemize the after contributory value as to each improvement on the lands, (2) his testimony relating to comparable sales, and (3) his valuation techniques. We deem unnecessary a detailed discussion of these areas since there was no objection or motion to strike any portion of the witness’s testimony pertaining to these areas and, further, those arguments are raised for the first time on appeal, Arkansas State Highway Comm’n. v. McDonald, 250 Ark. 1011, 468 S. W. 2d 231 (1971); Arkansas State Highway Comm’n. v. Sadler, 248 Ark. 887, 454 S. W. 2d 325 (1970); Arkansas State Highway Comm’n. v. Darr, 248 Ark. 730, 453 S. W. 2d 719 (1970); Osceola Housing Authority v. Gillespie, 244 Ark. 248, 424 S. W. 2d 521 (1968). In the case at liar there was evidence adduced by appellees that their just compensation was $22,500. Appellant’s largest estimate as to the landowners’ iust compensation was $10,500. As we said in Osceola Housing Authority v. Gillespie, supra; “The disparity between * * * appraisals is very common in eminent domain cases * * *. Yet the only rule we can follow is the substantial evidence rule.” From our review of the record, as presented in the case at bar, we are of the view that the evidence is not insubstantial nor is the verdict excessive.

Affirmed.


text:
    Ann SHAPPY v. Janet KNIGHT et al
    5-5825
    475 S.W. 2d 704
    Opinion delivered February 7, 1972

      Steve Herman and Burl C. Rotenberry, for appellant.

      Ivan H. Smith, for appellees.
   Frank Holt, Justice.

The appellant brought this action to vacate and set aside a final order of guardianship appointing appellee Janet Knight as guardian of appellant’s child with the right to consent to adoption of the child without notice to or consent of appellant. The probate court refused to set the guardianship aside and dismissed appellant’s complaint.

For reversal the appellant contends that the court erred in holding that Ark. Stat. Ann. § 27-853 (Repl. 1962) is not applicable in guardianship proceedings. The statute provides:

“No judgment can be rendered against a prisoner in the penitentiary until after a defense made for him by his attorney, or, if there is none, by a person appointed by the court to defend for him.”

During this guardianship proceeding the appellant was an inmate of the state penitentiary. The record does not disclose for what offense or for what length of time she was incarcerated. It appears that the child was born to appellant shortly after she became an inmate. About three months after the birth of the child she consented to the infant boy being made a ward of the juvenile authorities and placed in the legal custody of appellee Knight, Director of the Child Welfare Division of the Arkansas Department of Public Welfare. Several months later the present guardianship proceeding was instituted for adoption purposes. Admittedly, appellant never was represented nor had the benefit of an attorney during this proceeding. Notice of the guardianship proceeding was forwarded to the superintendent of the penitentiary. When he discussed this guardianship notice with appellant, she became so distraught that he immediately communicated her disapproval to an official in the Welfare Department’s Division of Legal Services from whom he understood no adoption was contemplated and so assured appellant. Appellant testified that the superintendent did tell her that adoption of her child was not an issue in the proceeding and she understood her baby would be placed in a foster home pending hei release. The welfare official recalled that his conversation with the superintendent of the penitentiary pertained to the notice of the juvenile court proceeding. With commendable candor and fairness this official acknowledged: “I think this is where we got our wires crossed, if we did”; and appellee-guardian likewise testified that she did not think appellant ever fully understood the adoption had occurred.

We think the wisdom of the legislature in enacting this statute in 1869 is amply demonstrated by the facts in this case. No doubt the legislature was aware that inmates in the penitentiary are so disadvantaged in their liberties and ability to communicate their interest directly to the courts that it deemed this statute desirable to prevent misunderstandings, such as this, and to provide for the inmate’s day in court. In Puckett v. Needham, 198 Ark. 123, 127 S. W. 2d 800 (1939) a divorce decree, which vested title to real property in the appellee’s husband, was vacated and an order confirming a commissioner’s sale and deed to the appellant and his wife, who were innocent purchasers, was set aside. There process was actually served upon appellee when she was in the Pulaski County Jail. Later she was transferred to the federal penitentiary and, as an inmate without counsel, a default judgment was rendered against her. In applying the requirement of § 27-833 that an inmate must have the benefit of counsel in that court proceeding we said:

“### Under the statute, the fact of confinement in the penitentiary deprives the court of jurisdiction until answer is filed by the defendant’s attorney, or until the attorney appointed by the court has made proper defense.”

See, also, Armstrong v. Manzo, 380 U.S. 545 (1965). In the case at bar we are of the view that the final guardianship order, which was made without compliance with this long-standing statute, must be vacated and set aside.

Appellees respond that a guardianship proceeding is a special proceeding and not an action under the civil code. Nelson v. Cowling, 89 Ark. 334, 116 S. W. 890 (1909). Therefore, it is asserted that the provisions of § 27-833 requiring that an inmate of the penitentiary must have the benefit of counsel is inapplicable. We cannot agree with this contention. Certainly if we recognize, as we have in Puckett v. Needham, supra, that this statute is applicable to property rights, then it strains logic and credulity to say that the legislature did not intend this statute to extend and include the rights of a natural parent-child relationship. The right of natural parents with respect to their children is one of the “highest of natural rights.” Woodson v. Lee, 221 Ark. 517, 254 S. W. 2d 326 (1953). Certainly, a parent-child relationship cannot be viewed as being less than rights in chattel or property. Nor can we agree that this final guardianship order is not a judgment with respect to the parent-child relationship. A judgment is a final determination of the rights of parties in an action and is tested by substance rather than form. Melton v. St. Louis, I. M. & S. Ry. Co., 99 Ark. 433, 139 S. W. 289 (1911); Ark. Stat. Ann. § 29-101 (Repl. 1962). See, also, 49 C. J. S. Judgments § 5. The severance of appellant’s relationship with her natural child by this guardianship proceeding is just as final as a decree or judgment adjudicating her property rights. The appellant is entitled to her day in court on this issue of guardianship, even though relitigation could reach the same result.

The order of the probate court is reversed and the cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.


text:
    ARKANSAS STATE HIGHWAY COMM’N v. Charles L. LINDSEY, Lowell Adams and Elizabeth Adams, his Wife
    5-5682
    476 S.W. 2d 239
    Opinion delivered February 14, 1972

      Thomas B. Keys and Hubert E. Graves, for appellant.

      Butler & Hickey, for appellees.
   Carleton Harris, Chief Justice.

This appeal relates to judgments entered in the St. Francis Circuit Court in an eminent domain action. Portions of property belonging to Charles Lindsey (Tract IB) and Lowell Adams (Tract 19) were taken for the widening and building of shoulders on State Highway 1. During the trial, Dennis Jarratt, a witness on behalf of appellees,' testified that just north of the Adams property there was a driveway which, prior to construction, had no culvert under it and that this driveway forced water in a northerly direction for 200 feet at which point the water went into a culvert and over onto the east side of the highway. Jarratt said that after the construction, the plans for which called for a culvert under the driveway, the water came down the west barrow pit ditch of the highway and caused a water problem on the Adams property making it less valuable. Counsel for the department questioned the witness relative to construction plans, and specifically asked Jarratt if he had looked at the profile sheets. No specific reply was given by the witness, but judging from his answer, it appears that he had not looked at these sheets, and counsel stated to the court that he would like for the sheets to be placed in evidence. The record then reveals the following:

“THE COURT: What is the materiality of it?
MR. GRAVES: The materiality, Your Honor, is that I would like to cross examine the witness further from these plans, from these sheets, and I would like to put it in evidence so we can have it explained to the jury.
, THE COURT: Well, nobody is suing the contractor.
MR. GRAVES: I understand that.
THE COURT: And there is no claim here that they didn’t build it according to plan, is there?
MR. GRAVES: I understand that. This witness testified that it was done according to plans.
THE COURT: I don’t see why the plans would be material.
MR. GRAVES: Is the Court ordering not to put it in evidence?
THE COURT: No, sir, I’m not, but I don’t see any use in putting it in.
MR. GRAVES: Then you are telling me — well, could we go in chambers?
THE COURT: No, go ahead and put them in.”

Counsel for the commission then stated that he would like to make a motion in chambers, and after the court and counsel for the parties had retired to chambers, counsel for the commission moved for a mistrial.

"Mr. GRAVES: I’m moving on the grounds that your statement as to the materiality of my placing these plans in evidence is a comment on the evidence.”

The court overruled the motion, and the trial was resumed in the courtroom where the highway commission’s attorney questioned the witness rather thoroughly with reference to the exhibits offered (the profiles having already been introduced as earlier pointed out).

We do not agree that the court’s statements constituted a comment on the evidence, and thus necessitate a reversal of the judgment. The court made exactly three remarks, first "What is the materiality of it?”, second, "I don’t see why the plans would be material”, and third, when asked if the court was ordering that the profiles not be placed in evidence, replied, “No, sir, I’m not, but I don’t see any use in putting it in”. As authority, appellant cites Fuller v. State, 217 Ark. 679, 232 S. W. 2d 988, and Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 100 S. W. 2d 676. In Fuller, the Circuit Judge said:

“Just a minute, Mr. Batchelor, we will take too much time here if you expect to prove the reputation of Fuller by this teacher. There is no need to go into all of this. Now you can spend a lot of time on a man’s acquaintances and visits and all that. But that wouldn’t help the jury and it isn’t admissible here. * * *
Well, it is just taking up the time of the jury for nothing. He could talk about his football players from now until tomorrow night but that would not help the jury in deciding this matter. * * *
At this time these men here on the jury have something else to do besides listen to that. They want to try this case, and it is my duty to confine the testimony to points that are material.”

The opinion recites that there were several other interruptions of the same general tenor as those just quoted. In Western Coal & Mining Co., while defense counsel was attempting to refute testimony given by plaintiffs, and while one of the witnesses was testifying, the court interrupted counsel, saying:

“Let him go, this is an imposition on the jury. It appears to me the jury understands the facts of this case, both theories. Why take further time describing the damages to this place, you have had six witnesses, and I allowed them five on the Kranc case.”

When counsel stated that there were a number of other witnesses he desired to present, the court commented:

“I will let you use what you have, but it looks to me like just taking time. They are intelligent gentlemen and don’t have to be told a dozen times, they can understand.”

The remarks made by the trial judge in the instant case do not, in our view, even come close to approaching the import of the language used in the two cases just cited. In the first place, there were not repeated interruptions as in Fuller, all remarks being made within the space of a minute or so. The first remark was simply a question by the court in asking the materiality of the evidence. The second remark certainly was not much more than the court stating that it needed further information before it could determine whether the plans were material. Finally, though the judge did not personally understand the relevancy of the evidence, he did permit counsel to introduce the profiles. At no time did the court state that the jury was being imposed upon, or that counsel was “just taking up time” in placing the exhibits in the record. In fact, the remarks of the court in the two cases cited and in the instant case are so different in what they convey to the jury, that we deem it unnecessary to further distinguish between them.

Affirmed.

      These reflect elevations.


text:
    Turner JOHNSON v. Donald K. BOWLIN et al
    5-5724
    475 S.W. 2d 885
    Opinion delivered February 14, 1972

      Cockrill, Laser, McGehee, Sharp dr Boswell, for appellant.

      William C. Daviss and Wright, Lindsey dr Jennings, for appellees.
   Carleton Harris, Chief Justice.

This litigation is the result of a motor vehicle collision involving vehicles driven by appellees, Mrs. Ollie Krissel, Donald K. Bowlin, and another vehicle driven by Rayburn J. Vantrees. Appellant, Turner Johnson, is a rice farmer owning and farming land near the town of Coy. On October 1, 1968, Johnson had instructed his employees to burn off a rice field adjacent to Highway 130 between Coy and England. Mrs. Krissel drove her vehicle into smoke from the fire, and when she slowed or stopped, the rear end of her car was struck by a vehicle driven by BQwlin, whose vehicle, in turn was struck in the rear by a pickup truck driven by Vantrees. Bowlin, a resident of Pulaski County, instituted suit in the Circuit Court in that county against Johnson, the two vehicle drivers, and Joe Tyler, owner of the Vantrees vehicle. All drivers involved counterclaimed against Bowlin and cross-complained against each other and against appellant Johnson. All sought property damages except Mrs. Krissel, who in addition to property damage, asserted damages for personal injury. On trial, the jury returned a verdict finding Johnson 100% at fault and propérty damages were awarded to Bowlin of $310.61, and Mrs. Krissel was awarded damages in the amount of $639.58. Thereafter, Mrs. Krissel filed a motion for a new trial, and the court, after entering judgment in favor of Bowlin for $310.61, granted a new trial against Johnson (on the finding of negligence between Johnson and appellee Krissel, and on the finding as to appellee’s damages). Johnson appeals to this court. For reversal, it is simply urged that the trial court abused its discretion in setting aside the jury verdict in favor of Mrs. Krissel, and in ordering a new trial thereon.

In setting aside that portion of the jury verdict with respect to damages sustained by Mrs. Krissel on account of the negligence of appellant, the court found that the verdict was against the weight of the evidence, and it definitely appears that the new trial was granted on the basis of inadequacy of the verdict. The controlling statute, Ark. Stat. Ann. § 27-1902 (Repl. 1962) provides:

"A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action where the damages shall equal the actual pecuniary injury sustained.”

In Munson v. Mason, 245 Ark. 686, 434 S. W. 2d 815, plaintiffs were awarded damages by a jury, but filed a motion for a new trial, principally upon the ground that the evidence established pecuniary injuries in excess of the verdicts. The trial court set aside the awards, finding that the verdict "failed to do justice and enforce the rights of the parties”. The granting of a new trial was appealed, and this court, in holding that there was no abuse of discretion as far as one of the plaintiffs was concerned, stated:

"We find no abuse of discretion insofar as Mason is concerned. According to the testimony, his car was worth $4,400 immediately before the accident and $1,500 immediately after it. Thus the $2,900 verdict fully compensated him for his property damage. It is undisputed, however, that he also incurred medical expenses for his wife’s and daughter’s injuries in excess of $2,375. Although the jury may have believed that not all those expenses were necessarily attributable to the accident, unquestionably some of them were. If the trial judge found that, by the weight of the evidence,. Mason’s pecuniary injuries exceeded the amount of the award, it was his duty to set it aside upon the plaintiff’s motion. Bockman v. World Ins. Co., 222 Ark. 877, 263 S. W. 2d 486 (1954). We cannot say that the judge abused his discretion. To the contrary, in our opinion the preponderance of the proof supports his action.”

Appellant’s principal complaint on this appeal is that Mrs. Krissel did not clearly establish pecuniary injury, and that the jury did not have to believe that all the items of expense mentioned were occasioned by the injury sustained in the accident. It is pointed out that part of her testimony was an estimate and several of the figures given were not definite. It is also mentioned that her testimony was not supported by bills or statements. Appellant is correct in this assertion but not a single objection was made to the testimony of the witness, nor was any effort made to show that her testimony was incorrect. Appellee lists items of actual pecuniary loss totaling $772.03 in her brief, and our computation, arrived at from a review of the record, reflects this figure to be correct.

Here, the trial judge evidently found that Mrs. Krissel’s pecuniary injuries exceeded the amount of the award, and that being true, it was his duty to set the verdict aside. Certainly, we cannot say that the court abused its discretion.

Affirmed.


author: George Rose Smith, Justice.

text:
    O. K. BOWER v. Thelma L. BOWER
    5-5813
    476 S.W. 2d 8
    Opinion delivered February 14, 1972

      James B. Blair, for appellant.

      Jones <h Segers, for appellee.
   George Rose Smith, Justice.

This is a divorce case. The parties were married in 1924, were divorced in Illinois in 1959, remarried in 1961, and again separated on October 24, 1962. In 1963 Mrs. Bower obtained a decree of separate maintenance. In 1970 Dr. Bower filed the present suit for divorce, on the ground of three years separation. By counterclaim Mrs. Bower sought a divorce, for general indignities. The chancellor awarded the divorce to Dr. Bower, upon the ground of three years separation. The court found, however, that Dr. Bower was at fault in causing the separation. An award of alimony was accordingly made to Mrs. Bower.

It is established by the weight of the evidence that on more than one occasion Dr. Bower falsely accused his wife of having been intimate with other men. Such conduct is a ground for divorce, Relaford v. Relaford, 235 Ark. 325, 359 S. W. 2d 801 (1962), and, a fortiori, for a separation. The appellant is mistaken in arguing that the proof of his accusations was inadmissible, for the asserted reasons that the accusations were made (a) after the separation and (b) more than five years before this suit was filed. We rejected both those contentions in Alexander v. Alexander, 227 Ark. 938, 302 S. W. 2d 781 (1957), holding the evidence to be admissible on the issue of whose fault caused the separation. It follows that the chancellor was not in error in finding that Dr. Bower was the party at fault in this case.

Nor can we sustain the appellant’s argument that the court should not have allowed Mrs. Bower any alimony at all. Not only was it shown that Dr. Bower was at fault; there is no proof at all of any fault on Mrs. Bower’s part. At the time of the trial she was almost sixty-five years old and was not trained to earn a livelihood. Dr. Bower had an income of about $9,000 a year and had recently received an inheritance valued at some $40,000. We find the decision to award alimony to be fully supported by the record. The appellee is allowed an additional attorney’s fee of $500 in connection with this appeal.

Affirmed.