author: George Rose Smith, Justice. Darrell Hickman, Justice,

text:
    AIRCO, INC. v. SIMMONS FIRST NATIONAL BANK, Guardian, et al
    82-12
    638 S.W.2d 660
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982

      Wright, Lindsey ir Jennings, for appellant.

      Whetstone & Whetstone, by: Bernard Whetstone, for appellees.
   George Rose Smith, Justice.

On May 14,1980, Georgia Huchingson underwent surgery at a hospital in Little Rock. In connection with the operation, certain drugs had impaired her ability to breathe during the surgery; so the anesthetist had to provide artificial breathing for the patient. During the operation the artificial breathing procedure malfunctioned for several minutes, causing Mrs. Huchingson to suffer serious lung injury and irreversible brain damage. This action for compensatory and punitive damages was brought by Mrs. Huchingson’s guardian and by her husband against various local defendants and against the appellant, Airco, Inc., which had manufactured a machine used in the artificial breathing procedure.

A day or two before trial, liability for compensatory damages was admitted both by Airco and by the partnership of doctors that had provided the anesthesiological services. The plaintiffs then dismissed all their causes of action except the admitted claims and the cause of action against Airco for punitive damages. The jury awarded compensatory damages of $1,070,000 against the partnership and Airco and punitive damages of $3,000,000 against Airco, whose net worth had been shown to exceed $607,000,000. The compensatory award has been paid.

For reversal Airco argues only that there is no substantial evidence to support a punitive damage award. The pivotal issue was submitted to the jury in AMI 2217, which includes this admittedly correct statement of the law: “Before you can impose punitive damages, you must find that Airco, Inc. knew or ought to have known, in the light of the surrounding circumstances, that its conduct would naturally or probably result in injury and that it continued such conduct in reckless disregard of the circumstances from which malice may be inferred.” AMI Civil 2d, 2217 (1974). Specifically, it is insisted that the proof does not show that Airco should have known that injury was natural or probable or that Airco, instead of being merely negligent, continued its conduct in reckless disregard of the consequences. The case comes to us as involving products liability. Rule 29 (1) (m).

We need not describe the artificial breathing apparatus in complete detail. Two machines are used, side by side near the operating table. The anesthesia machine, not in issue here, provides, through a system of similar black hoses, a continuous flow of mixed gases that serve as fresh air. The air travels in a circuit. It enters the patient through a mask, equipped with valves, that is held against the patient’s face. When the air leaves the patient’s lungs, it returns to the mask and travels through a different hose back to the anesthesia machine, which has an absorber to remove carbon dioxide.

The flow of air to the patient’s lungs must have alternate positive and negative pressure, so that the lungs will expand and contract as in natural breathing. That alternating pressure is provided, during a typical operation, part of the time by a flexible bag which an anesthetist squeezes and releases by hand and part of the time by the second machine, a ventilator that also creates alternating pressure.

For various reasons it is usually necessary to switch back and forth from the bag to the ventilator. The Airco ventilator used in Mrs. Huchingson’s case had two ways for the anesthetist to. make the switch. One method was entirely manual: To change, for example, from the bag to the machine, the anesthetist would simply remove the bag from the absorber, connect a hose in its place, and start the ventilator machine. That method takes about ten seconds and involves no substantial hazard to the patient.

The other method eliminates the manual procedure, using instead an optional accessory called a selector valve. This small device is to be attached to the ventilator. It has three “ports” of the same size, open pipes over which a hose or the neck of a bag may be slipped. When properly used, hoses are attached to the two ports on the sides of the device and a bag may be attached to the middle port, which extends downward. The device has a straight handle with two possible positions, pointing down when the bag is in use and horizontally when the ventilator is in use. The anesthetist turns the handle to make a desired switch.

What happened during Mrs. Huchingson’s surgery was this: Before the operation began, a hose had been properly attached to the right-hand port on the selector valve, with the other end of the hose open for later connection to the absorber. Someone, however, had incorrectly put another hose on the middle port, where only a bag was meant to be connected. When the nurse-anesthetist, an employee of the partnership, decided to stop using a bag at the absorber, she removed it and by mistake attached in its place the hose hanging from the middle port. The effect of the improper connections was to permit the anesthesia machine to continue to pump air into the patient’s lungs, with no way for the air to escape. The ensuing build-up of pressure and lack of oxygen resulted in serious damage to the patient’s lungs and brain.

The plaintiffs’ proof, consisting mainly of expert testimony, tended to show that Airco designed, manufactured, sold, and persisted in selling the selector valve even though Airco should have realized originally and should also have learned before 1980 that the device was so inherently dangerous that it ought never to have been put on the market. The foreseeable danger was just what happened during Mrs. Huchingson’s surgery — human error brought about by the presence of several identical black hoses and by the necessity for connecting them correctly to three similar ports that were too close together and that lacked adequate labels and warnings. The danger would have been eliminated had Airco substituted for this particular selector valve either of two available alternatives: the manual system for which the ventilator was designed or a selector valve having only two ports instead of three.

The plaintiffs called as their first witness Wayne Hay, an Airco staff engineer, who had designed both the ventilator and the selector valve in 1973 when Airco decided to manufacture its own ventilators instead of selling one made for it by another company. From the beginning Hay was aware of the hazard in the use of the selector valve: “[S]ince you have a choice now, you can make the wrong choice.” Before the ventilator and selector were marketed, they were field tested at about 30 representative sites throughout the country. Reports were unfavorable. One said that no one liked the bag/ventilator valve; it could have killed the patient. Other reports said the selector was dangerous and could kill people. Nevertheless, the company manufactured and sold the selector valve. Hay testified that since the users would be professional people, they should have common sense enough to learn all the hazards before using the selector. Hay also defended the company’s action because the selector was offered as an optional accessory. “The user can buy it or not as he chooses. If he chooses to buy it, the choice is his, not mine. That’s a professional choice of his. I see no reason why we should refuse to sell it if he wants it, and there is an obvious market for it.” Hay had seen a 1977 article about an incident similar to the Huchingson case. He said he probably read follow-up letters to the editor saying that the selector valve was dangerous and shouldn’t be on the machine, but they didn’t tell him anything he didn’t already know. Since no other employee or officer of Airco testified, the jury doubtless accepted Hay’s testimony as stating the company’s position.

Another witness was Dr. Susan Dorsch, an experienced anesthesiologist from Florida. She believed strongly that the selector valve should not be on the market. She approached the matter by using a “benefit to risk ratio.” She believed that the risks were overwhelming as compared to the benefit of convenience. She said it was easy to make a misconnection, because the ports were the same size and close together. Such a misconnection could kill the patient or cause irreparable damage to the lungs and brain within a very short time. Dr. Dorsch also pointed out that while using the ventilator the nurse-anesthetist has a lot of things on her mind: She must regulate the amount of anesthesia, watch the blood pressure, check the cardiac monitor, squeeze the bag to ventilate the patient, and watch the patient’s chest. Dr. Dorsch also cited a 1972 article that referred to accidents similar to the Huchingson incident, involving an increase in breathing pressure resulting from a misconnection.

Two members of the defendant partnership testified (one by deposition) that the selector valve was dangerous. They did not learn until after the Huchingson incident that the ventilator could be used without the selector valve, which they said they would never use again. One of them said that the selector valve “is absolutely a time bomb, and anybody that sits there and connects it a few thousand times, they’re going to misconnect it sooner or later.” Dr. Drinker, a bio-medical engineer from Boston, testified that the selector valve is lethal. He did not think that the selector fulfills any necessary function, but it introduces the risk of an accidental connection resulting in death or serious injury.

Another witness, Dr. Leslie Ball, was a safety engineer with 43 years’ experience. He had read the depositions, had examined the operating room and equipment, and in other respects had familiarized himself with the Huchingson case. His purpose was to determine the foreseeability of the injury that occurred. He testified: “And it was very clear that what did happen was just exactly the sort of thing the safety engineer, through predictive analysis, would expect, not very often, but everything that did happen, each event, both what happened to the equipment and what happened to the people, was foreseeable by a reasonably competent engineer.” Dr. Ball believed that the risk presented by the selector valve was catastrophic and should have been eliminated by the manufacturer, either by not selling it or by making it completely safe. He thought that the first time a similar accident happened, as reported in the trade literature, the selector valves should have been recalled. The witness concluded that the selector valve is “grossly in violation of safety engineering principles and never should have been put on the market.”

There was other testimony, with very little to the contrary, but the proof we have narrated brings the case within the requirements of AMI 2217. A jury question was presented.

Airco argues that it took a combination of nine separate acts of negligence (most of which are attributed to the nurse-anesthetist) to bring about Mrs. Huchingson’s injuries; so that consequence is said not to have been natural or probable. The exact combination of circumstances is immaterial. What does matter is that serious injury to someone, brought about by human error attributable to the design of the selector valve, was both a natural and a probable consequence of Airco’s conduct. Certainly the jury could have so believed, with substantial evidence to support its conclusion. Moreover, that possibility of injury could have been eliminated had Airco simply put the ventilator on the market without the optional but lethal selector.

It is also argued that Airco, like the tortfeasor in Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981), was guilty only of simple negligence rather than of that persistent reckless disregard of consequences that is essential to liability for punitive damages. The two cases are decidedly dissimilar. Airco knew that the patient’s very life always depended upon the artificial breathing supplied by the ventilator. Consequently the marketing of an optional, unnecessary, and lethal selector valve is not comparable to the sale of farm machinery which, in Aderhold, did not necessarily involve a similar continuous possibility of death or serious injury. Furthermore, it does not appear that in the Aderhold case there was proof similar to that now before us — that the manufacturer knew from the outset, by its own testing, that an unnecessary component of the product was so deadly that it should never have been made available to the public. On the record as a whole we hold that the issue of punitive damages was properly submitted to the jury.

Affirmed.

Purtle, J., not participating.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I agree in every respect with the majority opinion and concur simply to point out I believe the plaintiffs in Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981) had as strong or stronger case for punitive damages which the majority found wanting.

Hays, J., joins in this concurrence.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Jerry M. HERRON v. James JONES, III et al
    82-41
    637 S.W.2d 569
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982

      Bailey, Williams, Westfall, Lee ir Fowler, by: James A. Williams; and Friday, Eldredge ir Clark, by: Phillip Malcom, for appellant.

      Henry ¿r Duckett, by: David P. Henry and James M. Duckett, for appellees.
   George Rose Smith, Justice.

This medical malpractice suit was brought by the appellees, the surviving husband and minor children of Shirley L. Jones, whose death is alleged to have been caused by the negligence of the appellant, a physician. In December, 1981, the suit had been pending for 16 months, all discovery had been completed, and the case was set for a four-day trial in February. On December 16 the plaintiffs’ attorneys, Henry & Duckett, filed a motion asking that all defense counsel — the firm of Friday, Eldredge & Clark, Phillip Malcom (the member of the Friday firm handling the case), and a Texas law firm acting as co-counsel — be disqualified from further participation in the case because Pat Brown Damon, a legal secretary who had worked for Henry & Duckett for eleven months, had become a secretary for the Friday firm, and particularly for Malcom, in November, 1981. The motion for disqualification asserted that Canons 4 and 9 of the Code of Professional Responsibility, 33 Ark. L. Rev. 643 (1980), would be violated by the lawyers’ continued participation in the case.

The trial judge, relying primarily on State of Arkansas v. Dean Foods Products Co., 605 F.2d 380 (8th Cir. 1979), ruled that defense counsel were all disqualified from proceeding further in the case, not because there was any actual impropriety but because there was a violation of Canon 9: “A Lawyer Should Avoid Even the Appearance of Professional Impropriety.” The cáse comes to this court for an interpretation of our Code of Professional Responsibility. Rule 29 (1) (c).

Preliminarily, we must pass upon the appellees’ motion to dismiss the appeal on the ground that an order disqualifying counsel is not a final order within Rule 2 of the Rules of Appellate Procedure. It is certainly not final in the sense that the case is still to be tried on its merits, but the appellant argues that we should treat the disqualifying order as falling within an exception recognized in federal procedure, by which an order is appealable if it (1) conclusively determines the disputed question, (2) resolves an important issue completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978).

Even though orders disqualifying counsel are a comparatively recent development in the law, the appealability of such orders has already given the federal courts much difficulty. At first it was held in some circuits that all rulings on motions to disqualify counsel were final and appealable, whether the motion was granted or denied. In at least three circuits, however, the courts of appeal have overruled prior cases in reaching what is now the prevailing position: An order denying a motion to disqualify counsel is not appeal-able, although an order granting such a motion is appeal-able. Armstrong v. McAlpin, 625 F.2d 433 (2d Cir. 1980); Melamed v. ITT Continental Baking Co., 592 F.2d 290 (6th Cir. 1979); Firestone Tire & Rubber Co. v. Risjord, 612 F.2d 377 (8th Cir. 1980). The Supreme Court settled the issue by affirming, in effect, the Firestone case. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981), vacating the intermediate court’s order for want of jurisdiction, but recognizing its correctness.

In harmony with the federal courts’ conclusions, we have no doubt that an order disqualifying counsel should be appealable. This is true not only because a litigant may be erroneously deprived of representation by the counsel of his choice, but also because if the order of disqualification is not appealable the litigant will be compelled to employ other counsel and to submit to a useless trial before he learns by appeal that the disqualification order was wrong and he is entitled to start all over again.

We are fortunate, however, in not being bound, as the federal courts are, by a statute restricting appellate review to final orders. 28 U.S.C. § 1291. When our Rules of Appellate Procedure were drafted and adopted in 1978, there was no immediate necessity for either the drafting committee or the court to consider the appealability of orders disqualifying counsel. That necessity now confronts us. We are not willing, however, to embrace the federal exception to the ordinary requirement of finality — an exception that has been a prolific source of uncertainty, for who can predetermine with assurance when an issue is “important” and “completely separate from the merits of the action” and “effectively unreviewable” on final appeal? We therefore prefer the simple course of amending Appellate Procedure Rule 2 to provide that an order disqualifying counsel is appealable. A per curiam order to that effect is being entered today. For a comparable situation see Gallman v. Carnes, 254 Ark. 155, 492 S.W.2d 255 (1973).

On the merits, the proof is that before Mrs. Damon left Henry & Duckett she was cautioned not to disclose confidential information about this case. When she became a secretary at the Friday firm, she was told at the outset that she would have nothing to do with this case, for which the file was kept in Malcom’s own office. Mrs. Damon herself stated in an affidavit that she had had no contact with the case since being employed by the Friday firm, had not spoken to anyone in the firm about the case, and would not do so in the future.

Thus, there is no suggestion of impropriety in fact. Instead, appellees emphasize the language of Canon 9, that a lawyer must avoid even the appearance of impropriety. Granted. But we must keep in mind that the Dean Foods case and similar decisions have all dealt with the situation in which the lawyer himself has changed from one firm to another, with a possible conflict of interest. Here, however, it was not a lawyer but a legal secretary who changed her employment. We have no doubt that the Canon 4 duty to preserve the confidences of a client applies to all the employees of a law firm, but Canon 9 is directed specifically to lawyers and to no one else. Counsel for the appellees conceded at the oral argument that they have found no case in which a lawyer has been disqualified in circumstances similar to those now presented.

The proof demonstrates beyond question that every precaution was taken to avoid any disclosure of confidential information by Mrs. Damon and that no such disclosure occurred. Moreover, there is much testimony that temporary secretarial help is continually found to be necessary by many law firms in Pulaski County. The representative of a concern engaged in the business testified that her firm provides the temporary services of experienced legal secretaries on a regular basis to between forty and fifty law offices in the community. Twenty percent of that company’s secretaries work for from eight to ten different law firms in a year; the other eighty percent work for from two to eight firms in a year. There was also testimony that law firms prefer to employ legal secretaries with prior experience, so that permanent secretaries as well as temporary ones frequently move from one law office to another. Thus complete avoidance of a situation like that now presented is impossible.

We need not detail the abundance of similar testimony, which was uncontradicted. We are convinced that any appearance of impropriety, any presumption of impropriety, that might have arisen in this instance from Mrs. Damon’s change of jobs was effectively overcome by the undisputed testimony. The trial judge was mistaken in sustaining the motion to disqualify defense counsel.

Reversed.


text:
    Orbin Joe BALL et al v. Sheila Ball CURTIS and Bradley CURTIS
    82-124
    637 S.W.2d 571
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982

      Joseph Boeckmann, for appellants.

      Michael Everett, for appellees.
   George Rose Smith, Justice.

In four cases we have held that when the title to land is vested in a life tenant with contingent remainders that will not vest until the life tenant’s death, a court of equity has the power upon a proper showing to order a sale of the land for reinvestment. Walker v. Blaney, 225 Ark. 918, 286 S.W.2d 479 (1956); Wing v. Wing, 212 Ark. 960, 208 S.W.2d 776 (1948); Hardy v. Hilton, 211 Ark. 991, 204 S.W.2d 163 (1947); Bedford v. Bedford, 105 Ark. 587, 152 S.W. 129 (1912). In all those cases, however, when the suit was brought there was in being a member of the class of possible remaindermen, who could be made a party to the case as the representative of other contingent remaindermen as yet unborn. In the case at bar the life tenant, Sheila Ball Curtis, age 30, has never had a child; so there is in being no member of the class comprising her bodily heirs. The question is whéther in this situation a court of equity has the power to order a sale of the land for reinvestment. We hold that the power exists and affirm the chancellor’s decree ordering a private sale of the land. (The Court of Appeals transferred the case as involving the construction of a will. Rule 29 [1] [p].)

Orbin Ball died in 1968, survived by three children. His will left various separate tracts of land to each of his children for life, with remainder to his or her bodily heirs. The will made no disposition of the possible reversion and contained no residuary clause; so the three children inherited the reversion that remained in the testator’s estate.

Sheila Ball Curtis and her husband brought this suit to obtain a sale, for reinvestment, of 120 acres of the lands left to Sheila and her bodily heirs. Sheila’s brother and sister were made parties to the case; so all the necessary parties are before the court. The sister’s two minor children were also made defendants. The plaintiffs made a sufficient showing that the 120 acres are not as productive as other investments would be and that a favorable price has been negotiated with a purchaser.

Upon the only question at issue, the rule is that a court of equity has the power to order a sale for reinvestment even though no member of the class having the contingent future interest is yet in existence. Restatement of the Law, Property, § 179 (1936); Powell, Real Property, § 292 (1981); Comment, Alienability of Contingent Remainders, 2 Ark. L. Rev. 87 (1948). Where no bodily heirs of the life tenant are yet in being, as here, the life tenant herself is a proper person to represent her unborn descendants. Restatement, § 184 (d).

The chancellor correctly ordered a sale for reinvestment, but the decree contained no directions with respect to the reinvestment. See the Walker and Bedford cases, supra. The cause is therefore remanded for further proceedings.

Affirmed and remanded.


author: Frank Holt, Justice.

text:
    Richard DIETZ, Administrator of Adoption, Arkansas Social Services Department v. Michael BEVILL and Mary Edith BEVILL
    82-129
    637 S.W.2d 555
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982

      Breck G. Hopkins, for appellant.

      Highsmith, Gregg, Hart b Farris, by: Josephine Linker Hart, for appellees.
   Frank Holt, Justice.

The Arkansas Social Services petitioned the probate court for an appointment as guardian with the power to consent to the adoption of appellee Michael Bevill’s two minor children, Carri LeeAnn and Teresa Michelle, 7 and 9 respectively. Their mother is deceased. These two children have been in the custody of the Arkansas Social Services from December, 1978, until the time of the hearing in their action in August, 1981. The court struck the responsive pleadings filed on behalf of appellee Michael Bevill and appellee Mary Edith Bevill, the paternal grandmother, insofar as such pleadings related to custody, habeas corpus, and Mary Edith Bevill’s prayer that she be granted guardianship. However, the court granted her prayer to intervene. The petition of Arkansas Social Services to be appointed guardian with consent to adoption was denied as the court found the petitioner failed to meet its burden by clear and convincing evidence.

The appellant first contends that the probate court erred in disregarding the best interests of the children. Upon hearing all the testimony, the court stated:

There’s been some allusions to the fact that — or arguments to the effect that the court in making a decision ought to consider the best interests of the child and that is as opposed to being with the natural parents as opposed to being in an adoptive home. That’s a laudable purpose, but that’s really not the issue in this case, the best interests of the children, but it always has to be in the back of the court’s mind.

We feel the court properly followed the statutory framework set forth in Ark. Stat. Ann. § 56-128 (Supp. 1981), which provides “that before entering a guardianship order the court shall find from the evidence that .... the surviving parent----is unfit to have the child for any of the following ¿reasons----” It appears that the legislature intended that the court first make the determination that the parent is fit or unfit. If found unfit, then the court addresses the issue of the best interests of the child.

Appellant next contends that the court erred in permitting the intervention of Mary Bevill and considering her testimony which was not relevant or material to the petition before it. We cannot agree. It is true that Mrs. Bevill, the paternal grandmother, had no court ordered visitation rights nor was she acting in loco parentis. However, she had previously assisted her son in caring for the children in her home for about a year and a half based on a custody award of the juvenile court. She was planning to help him in the future should Michael gain custody of the two children. It appears she has demonstrated a sufficient interest in the children to entitle her to intervene and testify. Suffice it to say that appellant has not demonstrated any prejudice by the intervention which was limited to the testimony of Mrs. Bevill.

Appellant finally asserts that the court erred in finding that the Social Services’ proof falls short of establishing by clear and convincing evidence that appellee Michael Bevill is an unfit parent. We must agree. Appellant urges three grounds for the termination of his parental rights: § 56-128 (D), abandonment; § 56-128 (F) 3, neglect; and § 56-128 (H), lack of regular visits with the children or contact with the physical or legal custodian of the children.

The evidence shows that Michael Bevill, prior to the guardianship proceeding, made no efforts to gain custody of the children who had been in the Social Services’ custody since 1978 or approximately three years; that twice since 1978 he voluntarily committed himself to a mental institution for approximately six weeks total; for over two years after the children were placed in foster care, he never inquired of the Social Services’ worker about seeing the children nor called about their welfare, sent them Christmas cards or presents; he did not provide a social worker with an address, which was requested, so he could benefit from their rehabilitation efforts; he told the social worker to contact him through his mother, who testified she didn’t tell Social Services where he was because she didn’t know; he has lived alone and provided no monetary support for these two children for over three years, although he had been employed at different times in Arkansas, Missouri and Texas and earning over $200 a week during part of this time; he was unemployed for approximately a third of the time since 1977; he has three children by a former marriage, which resulted in divorce, and these children live with his parents because he couldn’t take care of them; he has been arrested for public drunkenness six or seven times in the past ten years; the only support he ever provided his other three children was to occasionally send his parents $25 or $30 a week; he presently has no j ob and has never had any savings; and if he regains care and custody of these two children, he would leave them with his parents until he gets a job and buys a home. The guardian ad litem recommended that the Social Services’ petition be granted.

Michael Bevill asserts he contacted Social Services about a month prior to this action concerning custody of his children. According to him the Social Services didn’t contact him about providing support and he didn’t know where the children were and was not allowed visits. However, he admitted he saw the children three or four times a year and that he had not provided any financial support since 1977, when he and his children’s mother were divorced. As indicated, their mother died in 1978.

Even though someone else, such as the grandparents or the Social Services, as here, has custody of a child, that does not relieve the father of the obligation to support the child; he must furnish support and this duty is a personal one which cannot be excused on the basis of the conduct of someone else unless that conduct prevents him from performing his parental duty; and this duty to support is paramount even though not ordered to do so by the court. Pender v. McKee, 266 Ark. 18, 582 S.W.2d 929 (1979). Here, we think the evidence is clear and convincing that the appellee Michael Bevill has demonstrated such an irresponsible attitude toward his children without any justifiable cause that appellant’s petition for guardianship with the right to consent to adoption should be granted.

Reversed and remanded.


text:
    Donald Brian (Punk) HAWKSLEY v. STATE of Arkansas
    CR 82-86
    637 S.W.2d 573
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982

      Jeff Duty, for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of burglary, aggravated assault, criminal mischief, and two counts of battery and imposed sentences totalling ten years. All charges stem from an incident occurring around 7:30 a.m., February 27, 1980, when the appellant entered an apartment occupied by Cathy Chastain and Robert Clayton. A fight erupted. Chastain and Clayton received injuries requiring medical treatment.

We first consider appellant’s argument that the court erred in admitting into evidence, over appellant’s objections, proof of disorderly conduct, escape, and criminal mischief in the second degree which involved other persons and occurred several years prior to the incident here. During cross-examination of the appellant, the following exchange took place:

Q. Do you remember an incident in July of ’77 in Which you were convicted of escape and disorderly conduct and criminal mischief in the second degree?
(Defense Counsel):
Object to that. I’d like to approach the bench on that____
(Prosecuting Attorney):
Your honor, they have raised the issue of self defense____ This goes specifically to acts of conduct or misconduct .... This is for impeachment. They have raised the issue of self defense and I think I can show what he’s been doing all his life, whether it has to do with violence....

Following a colloquy between the-state and the defense attorneys, the court overruled the objection, stating “It’s an incident involving violence”; neither a conviction nor arrest makes any difference, and therefore, appellant could be asked about whether he was involved in violence in a particular incident.

The trial court erred in overruling appellant’s objection, which we feel was sufficient. Rule 608 (b) of the Uniform Rules of Evidence provides that the trial court may, if it finds good faith and the probative value of the testimony outweighs the prejudicial effect, allow questions about certain offenses if the misconduct relates to honesty and truthfulness. “Questions regarding appellant’s violent nature and destruction of property are wholly unrelated to his propensity for honesty, and therefore, improper.” Divanovich v. State, 271 Ark. 104, 607 S.W.2d 38S (1980). See McCormick, Evidence, § 43 (2d Ed. 1972); 3 Weinstein’s Evidence § 608[05] (1981).

Rule 609 deals with impeachment by evidence of conviction of crime. Section (a) provides:

General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.

Thus, before the evidence of convictions of crimes was admissible the court had to be satisfied they were crimes either (1) punishable by imprisonment in excess of one year or (2) involved dishonesty or false statement. Once counsel raises the issue of whether the defendant’s prior convictions should be excluded from trial, the trial judge has the duty to see that he is informed of the relevant considerations before admitting the evidence. Clearly, the disorderly conduct, § 41-2908, a class C misdemeanor, was not admissible. Escape ranges from an admissible class C felony, first degree escape, § 41-2810 to an inadmissible class A misdemeanor, third degree escape, § 41-2812. Criminal mischief in the first degree, § 41-1906 can be admissible as a class C felony or inadmissible as a class A misdemeanor, depending on the value of the property destroyed. Criminal mischief in the second degree, § 41-1907, is an inadmissible misdemeanor. The state did not prove, nor did the trial judge make sufficient inquiry in the conference at the bench, to determine if the convictions were for crimes punishable by imprisonment in excess of one year and thus admissible into evidence.

The convictions were not admissible as convictions of crimes involving dishonesty and false statement. Those convictions are peculiarly probative of credibility and are always to be admitted without regard to grade of offense or length of sentence. Examples are perjury, subornation of perjury, criminal fraud and embezzlement. Thus, the prior convictions were not admissible for attacking the credibility of appellant under Rule 609.

Neither was the evidence admissible under Rule 404 to prove a trait of character. First, appellant on direct examination did not testify to a character trait of non-violence and so no rebutting evidence was admissible. Rule 404 (a) (1). Second, it was not admissible under 404 (b) to prove motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

Two of the charges in the present case were battery in the first degree and aggravated assault. The testimony concerning prior crimes was not relevant to prove intent to commit the crimes charged. For a complete discussion of cases involving evidence admissible to prove intent see Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954); and Moore v. State, 227 Ark. 544, 299 S.W.2d 838 (1957). Here, the evidence of other crimes was not admissible and was prejudicial to the appellant.

We feel it necessary to discuss other contentions raised by appellant in view of a possible retrial. Appellant contends that the verdicts of guilty as to the charge of burglary and criminal mischief were not supported by the evidence, and the trial court erred in overruling his motion for a directed verdict on those counts. We cannot agree. In Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976), we said:

It is well established that a directed verdict is only proper where there are no factual issues to be determined by the jury and on appeal, the evidence will be reviewed in the light most favorable to the appellee and the judgment will be affirmed if there is any substantial evidence to support it. Munn v. State, 257 Ark. 1057, 521 S.W.2d 535 (1975).

Substantial evidence is evidence which is of sufficient force that it will compel a conclusion one way or another beyond suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). In order for the state to prove the charge of burglary, it must show that the appellant entered or remained unlawfully in Chastain’s apartment with the purpose of committing an offense punishable by imprisonment. Ark. Stat. Ann. § 41-2002 (Repl. 1977) and Commentary. The appellant argues that admittedly he had a key to Chastain’s apartment with the right to come and go as he pleased; that he kept some of his clothes there and spent several nights there each week; that he had contributed substantially to her financial support; that the fact they had previously lived together at other locations indicated that he had consent to enter her apartment; and also when he went in the apartment, it was “uncertain as to what he had in mind”

The day before the incident appellant inquired at Chastain’s place of employment as to her whereabouts and was informed she had left with Clayton; that night Chastain received several threatening phone calls from appellant and finally she unplugged the phone; between the time Chastain and Clayton parked their cars outside Chastain’s apartment and the fight the following morning, Clayton’s car had been pushed sideways into Chastain’s vehicle, causing extensive damage to both cars; tire tracks near Clayton’s car were made by tires similar to those on appellant’s car; Clayton’s car sustained approximately $1,500 damages; at approximately 7:30 a.m. appellant forcibly entered Chastain’s apartment, splintering the door jam and forcing a chain lock from the wall; he observed Clayton in bed undressed; Chastain was in her night gown; the appellant was asked to leave; a fight broke out resulting in Chastain’s and Clayton’s injuries and medical treatment.

We feel the evidence was sufficient for the jury to infer the appellant entered or remained unlawfully in Chastain’s apartment with the intent to commit an offense punishable by imprisonment. We also find the evidence sufficient to enable the jury to infer that the appellant purposely destroyed or damaged the vehicles of Chastain and Clayton in excess of $500. Ark. Stat. Ann. § 41-1906 (Repl. 1977).

The appellant next contends the trial court erred in refusing to permit testimony concerning his and Chastain’s plans and plane reservations to travel to Mexico which were made about two weeks prior to the altercation and in failing to allow appellant to introduce evidence as to a $1,100 commission he gave Chastain about two months before the incident here. We agree that the court should have permitted the evidence. The state attempted to show Chastain had been trying to “break up” her relationship with appellant. The evidence as to their plans to travel together and the real estate commission were relevant to rebut the state’s theory. Uniform Rules of Evidence, Rule 402. Also evidence that a civil suit had been filed by Clayton against appellant as a result of the fracas had a bearing on the extent of the bias of the witness and was admissible. See Goodwin v. State, 263 Ark. 856, 568 S.W.2d 3 (1978). In Wright v. State, 133 Ark. 16, 201 S.W. 1107 (1918), we said: “Pecuniary interest, personal affection or hostility, a quarrel or prejudice may always be shown to discredit a witness.”

Appellant asserts the trial court erred in admitting statements of Chastain, given to the investigating officers, to be introduced as “binding” on the appellant as direct evidence of wrongdoing on his part toward her and failing to limit the introduction of statements to impeachment purposes only. We find no merit in this argument. First, we observe that her transcribed statements were neither read to the jury nor introduced in evidence. Further, she and appellant have married since the incident involving the alleged offenses upon her and, understandably, she appeared to be a reluctant witness. The state merely read portions of her statements in questioning her on direct examination about her past relationship with appellant and his conduct toward her. She admitted that everything in her statements was true. We do not perceive that this procedure was "binding” upon appellant, and no error is demonstrated.

We also find no merit in appellant’s contention that the court erred in permitting Clayton to detail conversations concerning the relationship between Chastain and appellant that he had with Chastain out of the presence of the appellant. On cross-examination of Clayton, appellant’s counsel asked Clayton whether Chastain "let you know she had this relationship with” appellant. We feel this opened the door for the later questions on redirect by the state concerning the status of their relations.

We deem it unnecessary to discuss any of the remaining contentions raised by appellant as they are not likely to reoccur in a new trial.

Reversed and remanded.


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

text:
    THE FIRESTONE TIRE & RUBBER COMPANY v. Artie LITTLE
    82-17
    _S.W.2d_
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982
    [Substituted Opinion on Denial of Rehearing delivered October 4, 1982.]

      Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., and Rose Law Firm, P.A., for appellant.

      Niewald, Risjord & Waldeck, Kansas City, Mo., and Shackleford, Shackleford ir Phillips, P.A., for appellee.
   Darrell Hickman, Justice.

This is a products liability case. In 1978, Artie Little, age 82, was walking by the roadside in Strong, Arkansas, when she was hit with a rim that came off the wheel of a passing truck. She filed suit for damages against the owner of the truck and trailer, Harvey Shelton, the owner of a service station who fixed a flat on the wheel of the trailer that day, Jackson Smith, and Firestone, the manufacturer of the rim. At trial, the jury exonerated both the owner of the truck and the service station owner, and awarded Artie Little $150,000 compensatory damages, and $200,000 punitive damages against Firestone.

The judgment has to be reversed because Firestone asked the day before trial whether the plaintiff and the two other defendants, Shelton and Smith, had entered into a “Mary Carter Agreement.” A Mary Carter agreement is one in which a plaintiff secretly agrees with a defendant that if the plaintiff recovers from another defendant, the agreeing defendant’s liability will be reduced. Those agreements were so named when one arose in Florida in Booth v. Mary Carter Paint Company, 202 So.2d 8 (Fla. App. 2d 1967). Firestone’s counsel asked before trial if any agreements had been made whereby Shelton’s or Smith’s liability would be reduced if Artie Little recovered against Firestone. Smith’s and Shelton’s attorneys objected and the trial court did not order the disclosure of any such agreement. On appeal, the appellee argues that Firestone knew or suspected such an agreement existed several months before trial and should have attempted to discover that information far in advance of the day before trial. We do not find Firestone waived their right to object.

There seems to be little doubt of the existence of some sort of agreement and we hold that the trial court was wrong in not requiring the agreement to be disclosed. Furthermore, we join those states that hold such an agreement is not only discoverable but also may be admitted into evidence.

The state courts that have considered this question are split to some degree on whether such an agreement is unethical or against public policy. See Lum v. Stinnett, 488 P.2d 347 (Nev. 1971), and Lubbock Manufacturing Co. v. Perez, 591 S.W.2d 907 (Tex. Civ. App. 1979). But we have no hesitation in joining those that require a full disclosure in cases such as this. General Motors Corp. v. Lahocki, 410 A.2d 1039 (Md. App. 1980); Gatto v. Walgreen Drug Co., 337 N.E.2d 23 (Ill. 1975); Ward v. Ochoa, 284 So.2d 385 (Fla. 1973); Pellett v. Sonotone Corp., 160 P.2d 783 (1945); See 65 ALR3d 602. The testimony of Shelton and Smith was critical to Artie Little’s case against Firestone. And, as it turns out, their testimony was no doubt a strong factor in the jury’s determination that Firestone’s RH5° rim was the sole cause of the accident and the complete exoneration of Shelton and Smith. It is readily apparent why the jury should know of any deals these parties made. As the Florida court said in the case of Ward v. Ochoa, supra:

Secrecy is the essence of such an arrangement, because the court or jury as trier of the facts, if apprised of this, would likely weigh differently the testimony and conduct of the signing defendant as related to the non-signing defendants. By painting a gruesome testimonial picture of the other defendant’s conduct or, in some cases, by admissions against himself and the other defendants, he could diminish or eliminate his own liability by use of the secret ‘Mary Carter Agreement.’
The search for the truth, in order to give justice to the litigants, is the primary duty of the courts. Secret agreements between plaintiffs and one or more of several multiple defendants can tend to mislead judges and juries, and border on collusion.

Firestone’s most ardent argument is that the case should be dismissed because it is impossible that the wheel in evidence is the accident wheel. The entire lawsuit focuses on the RH5° rim base which Firestone had manufactured from 1946 to 1973. It is not disputed that almost twenty-five million such rims were manufactured. The rim base consists of two parts, an outer ring, which is the part that supposedly flew off and struck Artie Little, and the base itself, which is the widest part of the rim and on which a disc is either bolted or welded. The disc is the part that contains the bolt holes. Besides the bolt holes, the disc has several large hand holes.

Firestone’s argument that the wheel in question could not have caused the accident is premised on the testimony of the truck driver, Shelton, and Smith, the wheel introduced into evidence, testimony of certain Firestone employees, and other exhibits. The testimony was: The owner, Shelton, said he bought the trailer in question in 1968 and had never changed the wheels. The previous owner testified there had never been a multi-piece wheel on the trailer. (That would exclude the wheel in question.) Baker, the driver, said the day before the accident he noticed the left front outside wheel on the tandem trailer was flat. The next morning Jackson Smith fixed the flat with Baker’s help. Baker left Smith’s station and drove about four blocks when he saw Artie Little walking along and then saw her disappear. He stopped his truck and ran to her assistance. He found that the tire that had been fixed had exploded and Artie Little was thrown into a ditch. Apparently the rim had come off and struck her. The base and tire were still on the truck, but the tire was in shreds. What happened next to the outer rim and wheel is somewhat in dispute.

Smith said the ring and rim were brought to his station where he kept them inside the building on a junk pile until someone picked them up. The truck owner, Shelton, said he picked them up at the accident scene, took them home and cut out the “eye” of the disc so it could not be used by anyone else. The “eye” is merely the center of the disc where the bolt holes are located. Baker, the driver, said he also went to Shelton’s. Shelton said he had both the remaining disc and the ring which were picked up at his place by one of the lawyers. The “eye” he cut out was never produced. It was this wheel assembly that was introduced by Artie Little as the Firestone product that caused the accident. Shelton testified that he was convinced that the wheel assembly in evidence was the one that came off the truck; Baker testified that the wheel in evidence was exactly like the accident wheel.

Firestone produced evidence that the wheel in evidence had only five “hand holes” and they never produced a “five hand” hole assembly that only had six bolt holes — it either had eight or ten bolt holes. A technical adviser for Firestone examined the trailer and testified that the axle on Shelton’s trailer could only take a six bolt wheel. Furthermore, when the assembly was shown to Jackson Smith at trial, he said that the assembly could not have been the one he put on that day because the outer ring would easily slip off the base and it would not hold as an RH5° should. He said, however, that he was not mistaken that the wheel he put on the truck that day was an RH5°; he had handled thousands of them. Furthermore, he said he knew they were dangerous and had cautioned his customers that used them.

Mr. Roger B. McCarthy, an engineer from California employed by Failure Analysis Associates, said he tried to duplicate the rim assembly in evidence. He said such an assembly would not hold sufficient pressure to be driven (which would be 85 to 90 pounds), and would come apart at about 45 pounds pressure. He said he filled the tire three times with water and it came apart each time at about 45 pounds.

Firestone’s argument, of course, is one that should be made to the jury. We cannot find that it was physically impossible that the wheel actually introduced was not the accident wheel. General Motors Corp. v. Tate, 257 Ark. 347, 516 S.W.2d 602 (1974), is cited by the appellant as controlling on the issue of the weight to be given the defendant’s evidence of the physical impossibility of the accident occurring in the way the plaintiff claims. We held in General Motors that such evidence may not be arbitrarily and capriciously disregarded by the trier of fact. In this case the defendant’s facts were disputed. The appellee produced witnesses that said the wheel in evidence was the accident wheel. While Firestone raised serious questions about the authenticity of this rim, it was for the jury to decide which witnesses to believe. Circle Realty Co. v. Gottlieb, 267 Ark. 160, 589 S.W.2d 574 (1979). Actually we cannot say it was essential in this particular case that Artie Little produce the accident wheel.

There is no doubt Firestone was harmed by the admission of certain documentary evidence, and its admissibility was the subject of most of the other objections raised by Firestone. One of the most damaging documents was a letter written in 1969 to an attorney involved in litigation over a multi-piece wheel. It was written by Paul Hykes, an engineer who worked for the Budd Company, which bought the Firestone RH5° rims and used them in the manufacture of wheels. The letter said, in part:

I am convinced that the RH5° Rim, aside from the safety aspect, has more than its share of field failures.
The RH5° Rim is a clever design, two continuous rings vs. one split ring on other two piece demountable side ring rim and designs or one split lock ring on the three piece versions. This permits lighter weight, lower cost. The material used is comparable to that used in other designs of rims. Its faults are:
1. It is more subject to dangerous wear than many other designs.
2. The only time that this dangerous wear can be detected is when the rim is dismantled.
3. It can be put together improperly and subsequently blow-apart when new.
4. It is easier to put it together improperly when it is badly worn.
5. It is more difficult to detect improper assembly on the RH5° than it is on competing rims.
From the foregoing, you can readily understand why I ask the question, ‘Why has this Rim not been removed from the market?’

The letter was accepted into evidence as notice to Firestone in 1969 that its rim was deficient in several respects. Firestone argued that it was hearsay, irrelevant and not authenticated. After the trial, Firestone took Hykes’ deposition and apparently he significantly qualified the statements in the letter. The letter was admitted to prove notice to Firestone, not to prove the truth of the assertions in the letter and, therefore, was admissible under Ark. Stat. Ann. § 28-Í001, Rule 801 (Repl. 1979). We cannot say the trial court abused its discretion in allowing the letter; on retrial Firestone should be permitted to introduce Hykes’ deposition taken after the trial.

Another objection concerning the same letter arose because W. H. Sanders, a lawyer for Firestone, wrote to other counsel for Firestone, and attached the Hykes letter. Sanders’ letter was admitted into evidence; it said:

Dear Jim:
With an appalled silence I hand you herewith the report from the former Executive Engineer of the Budd Company.
I am at a loss to know why Budd personnel, or former personnel, are so critical of a product that Budd sold.
I would be most interested to know where Budd stands on this matter and whether it endorses the position taken by Morrison and Hykes.
I still can’t bring myself to believe, or really give any credence to these criticisms of this rim. If these men are right, then the rim should not be sold, but it is sold, it is apparently providing good service, and from what Mr. McCusick had to say, I gather that these men could not come up with a safer type of rim to use.

The letter made its way to the Budd Company and Budd surrendered it in a lawsuit in answer to a discovery motion. Firestone argues the letter was inadmissible under Ark. Stat. Ann. § 28-1001, Rule 502, which provides a privilege for confidential attorney/client communications. We deem the privilege waived. Firestone should have never allowed the letter into the hands of Budd; by doing so Firestone has waived any right to claim the privilege. Ark. Stat. Ann. § 28-1001, Rule 510.

On rehearing, the appellant argues that a letter written by Mr. Lynn L. Bradford in October, 1979, Acting Director of the Office of Defects Investigation Enforcement of the National Highway Traffic Safety Administration, was not admissible as notice to Firestone because it was written after the accident in question. In our first opinion issued in this case we held that we could not say the trial court was wrong in finding that the letter was admissible. The arguments made by Firestone on appeal were that the letter was hearsay and Mr. Bradford did not have the legal authority to demand a recall. On rehearing, Firestone argues that the letter could not be notice because it was mailed after the accident in question. We reconsider this issue only because the matter will arise again on retrial and we should dispose of it. The letter was written after the accident in question and on the face of it we cannot say the letter referred to accidents or incidents which occurred before the accident in question, although it is very likely that is the case. On a retrial the letter should not be admitted because any probative value is outweighed by possible prejudice.

Firestone suggests throughout its brief that complaints made to Firestone are not evidence that there was a defect in the design of the wheel or that Firestone was under any duty to take any action. Subject to the trial court’s discretion, evidence of the complaints is admissible as notice and is not hearsay. See McCORMICK’S EVIDENCE § 249 (1972 ed.). Moreover, it was up to the trial judge to decide whether these documents were relevant. See Ark. Stat. Ann. § 28-1001, Rule 104. And, it is within the province of the j ury to decide if the evidence actually amounted to notice to Firestone.

Firestone argues that many other evidentiary decisions made by the trial judge were in error. Evidence of the National Highway Transportation Safety Association’s investigation of the RH5° wheel, evidence that the Utah Industrial Commission issued a tentative order banning the RH5° wheel in Utah, and nine memorandums, most of them interoffice between Firestone employees which discuss problems with the RH5° wheel, were admitted into evidence over the objection of Firestone. All posed questions of notice and relevancy and were subject to the trial judge’s discretion. The evidence of 145 prior accidents involving the RH5° wheel admitted was also relevant to the question of notice. Arkansas Power & Light v. Johnson, 260 Ark. 237, 538 S.W.2d 54 (1976); McCORMICK’S EVIDENCE § 200 (1972 ed.).

Firestone argues that proffered testimony of Roger McCarthy regarding the accident rate associated with the RH5° wheel as compared to other sorts of accidents, as well as other proffered testimony, should have been admitted. McCarthy was allowed to testify extensively. The admission and exclusion of expert testimony is a matter which lies within the sound discretion of the trial judge, and we find no reversible error. White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978); Phillips Construction Co. v. Williams, 254 Ark. 824, 496 S.W.2d 417 (1973).

The trial judge, in all of these evidentiary matters, must be afforded broad latitude. He, alone, has heard and seen all the evidence and he, alone, is in the best position to decide what evidence would aid the jury and what would only confuse the issues. And, unless we can say he was clearly wrong, we will not substitute our judgment for his. Ark. Stat. Ann. § 28-1001, Rule 104; See Arkansas State Highway Commission v. N.W.A. Realty Corp., 262 Ark. 440, 557 S.W.2d 620 (1977) and 3 WEINSTEIN’S EVIDENCE par. 702[2] (1981).

It is unlikely that the remarks made by Artie Little’s counsel regarding a former employee of Firestone’s who was terminated after giving a deposition will occur on retrial. These and other remarks of counsel which were objected to are unlikely to occur during a retrial.

Firestone was precluded from admitting evidence of their long-term support of an Occupational Safety and Health Administration regulation that required employers to train their employees in the proper servicing of multipiece wheels. There was evidence that in 1976 Firestone considered placing warning labels on the rim, but employees could not agree on what the warning should say. An expert on communications advised that a warning might cause more harm than good and the idea was dropped. Instead, Firestone launched a program to educate users how to properly service the rim. We think that the evidence should have been admitted to rebut Artie Little’s allegations that Firestone’s conduct was willful and wanton and for that purpose alone. See Johnson v. Niagara Machine and Tool Works, 666 F.2d 1223 (8th Cir. 1981).

On rehearing, Firestone argues that the jury’s answer to one interrogatory, that Firestone did not supply the wheel in a defective condition which rendered it unreasonably dangerous, precludes that issue from being relitigated. This case was submitted on alternative theories of liability and AMI Instruction 1012 was given to the jury. The alternative theories were strict liability and negligence. The jury was asked to answer two interrogatories regarding Firestone’s fault. The jury was asked:

Do you find from a preponderance of the evidence that Firestone Tire and Rubber Company manufactured a RH5° wheel assembly which was supplied in a defective condition which rendered it unreasonably dangerous, and that its defective condition was a proximate cause of the occurrence?

The jury answered no. The jury was also asked:

Do you find from a preponderance of the evidence that Firestone Tire and Rubber Company was guilty of negligence which was a proximate cause of the occurrence?

The jury’s answer was yes, one hundred percent. Firestone’s argument is that the jury, in effect, returned separate verdicts, and the jury’s answer of “no” to the first interrogatory precludes a retrial on the issue of strict liability for a manufacturing defect because it is res judicata. Firestone cites Womack v. Brickell, 232 Ark. 385, 337 S. W.2d 655 (1960) as authority for its position. We disagree that the issue of strict liability is res judicata. We do not find that the interrogatories in this case amounted to separate verdicts. The appellee could not have appealed from the finding by the j ury that Firestone was not liable under the strict liability theory. In the Womack case, either party could have appealed from the jury’s finding. In a law case the verdict is an entirety which cannot be divided. Wilson v. Davis, 230 Ark. 1013, 328 S.W.2d 249 (1959).

There was substantial evidence in the record to support the jury’s finding of negligence on the part of Firestone. The jury could have decided that Firestone was negligent in ignoring the notice it had received regarding the problems with the RH5° or in failing to warn of the dangerous propensities of the RH5° wheel. Since there was substantial evidence to support one of the several theories of liability, the appellee is not precluded from presenting its case on either or both theories on a retrial.

We have reviewed the record and find no other reversible errors.

Reversed and remanded.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I would hold that the issue as to defective manufacturing of the wheel is res judicata on retrial.

      Firestone concedes the wheel introduced was manufactured by Firestone. The outer ring was manufactured in 1960, the inner ring in 1971.

      Firestone sought to introduce the final order of the Commission which did not ban the wheel. The order was not on Firestone’s pretrial list and the judge excluded it. No doubt it should be admitted on a retrial, if properly presented, to rebut the claim for punitive damages.


author: Darrell Hickman, Justice.

text:
    Noel Richard BELANGER v. Brenda Joyce Packor BELANGER
    82-100
    637 S.W.2d 557
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982
    [Rehearing denied September 13, 1982.]

      Hoofman & Bingham, P.A., by: John Biscoe Bingham; and Scott Manatt, for appellant.

      Burris & Berry, for appellee.

      Dudley, J., not participating.

   Darrell Hickman, Justice.

The only real issue in this case is whether the chancellor improperly awarded alimony. We conclude that he did and reverse the decree of the chancellor.

Noel Richard Belanger and Brenda Joyce Belanger were married in New Hampshire in 1968. They lived together until they separated in 1978; at that time they were living in North Carolina. An attorney in North Carolina prepared a property settlement agreement and although the written agreement was not produced, there is no doubt that Noel Belanger signed it and that Brenda Belanger complied with it. In the agreement, the Belangers agreed to sell the houses they owned in Florida and North Carolina and split the proceeds, which they did. Each got $ 10,400 from the Florida property. Mr. Belanger got a 1978 Chevrolet and Mrs. Belanger got a 1966 Buick. They also divided other personal property. They agreed to keep two acres of real property they owned in New Hampshire.

Mr. Belanger moved to Arkansas and filed for divorce in Clay County in 1978. The chancellor awarded a divorce to Mrs. Belanger which was not contested as to grounds. After hearing the testimony of the parties, the chancellor found that the following items constituted marital property pursuant to Arkansas law:

1. $1,600 in a North Carolina savings & loan.
2. A Corvette belonging to Mr. Belanger.
3. A Chevrolet belonging to Mrs. Belanger.
4. A Ford pickup belonging to Mr. Belanger.
5. Five guns belonging to Mr. Belanger.
6. One canoe belonging to Mr. Belanger.
7. 250 shares of stock.

The chancellor ordered that if the parties could not ágree to a division of the property it would be sold and the proceeds evenly divided. Then he made an award of $500 per month alimony to Brenda for a period of forty-eight consecutive months. The chancellor said he was making this award because, “1 think the alimony award that I will make will even out what interest she might have in that property.” “That property” to which the chancellor was referring was an interest Mr. Belanger had acquired in a residence in Pocahontas, Arkansas. Mr. Belanger had .entered into a lease-purchase agreement, paid $5,000 down and agreed to pay $5,000 more six months later toward a total purchase price of $68,000. The other piece of property was a residence located in Corning, Arkansas. Legal title to the property was in the name of Mr. Belanger’s parents but the chancellor found Mr. Belanger had equitable title to it since he had made most of tbe payments.

The alimony award was used as a substitute for awarding Mrs. Belanger an interest in the real estate — and not for any other reason. Since the chancellor found that the real estate was not marital property, a division could not be made through an award of alimony. The chancellor made no findings that would justify the award according to Ark. Stat. Ann. § 34-1214 (Supp. 1981).

Mrs. Belanger’s attorney claims that the property settlement agreement was never introduced, there was no pleading or claim that it should be enforced, and, therefore, it cannot control. But that agreement and the subsequent action of the parties were the focus of the dispute, and the court no doubt considered the agreement in making his decision. Mrs. Belanger did not deny its existence; in fact she testified:

Q. Did y’all agree to divide everything between you and take what each party wanted at that point in time?
A. Yes, sir.
Q. Your answer is yes you did reach that agreement?
A. Yes, sir.

And she conceded that the agreement was carried out. The Belangers no doubt entered into an agreement in North Carolina and performed according to the agreement. Mr. Belanger took his part of the proceeds from the sale of their property, investing it in Arkansas, and Mrs. Belanger received her portion of their property. The parties were bound by their acts and neither sought to reject the division of property.

The effect of the chancellor’s alimony award is to allow Mrs. Belanger to receive her portion of the property settlement as well as all or a part of Mr. Belanger’s share of that settlement.

Consequently, the alimony award was improper and in that regard the decree is reversed and the cause remanded for any other proceedings.

Reversed and remanded.


text:
    Billy A. PUTERBAUGH, d/b/a PUTERBAUGH CONSTRUCTION COMPANY & PUTERBAUGH ENTERPRISES, INC. v. L. Weems TRUSSELL, Individually, and L. Weems TRUSSELL, Executor of the Estate of Nona Lee TRUSSELL, Deceased
    82-135
    637 S.W.2d 559
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982

      Wallace, Hilburn, Clayton, Calhoon & Forster, Ltd., for appellant.

      Samuel N. Bird of Williamson, Ball ir Bird, for appellee.
   Darrell Hickman, Justice.

A Dallas County jury returned a verdict for $15,000 against Billy Puterbaugh. The verdict was reduced to judgment on June 19, 1979. Puterbaugh filed a timely notice of appeal and a motion for a new trial. A hearing on the motion for a new trial was conducted on August 27, 1979. On December 30, 1980, sixteen months after the hearing, Judge Melvin Mayfield denied the motion.

Puterbaugh states, and it is not refuted, that he only learned of the order through a conversation with a local attorney on April 6,1981. On May 19,1981, Puterbaugh filed a motion to have the j ury verdict set aside. A hearing was had on that motion on August 5, 1981, before Circuit Judge Don Gillaspie, Judge Mayfield’s successor. On August 21, 1981, Puterbaugh amended his motion to request both that the jury verdict be set aside and that the denial of the motion for a new trial be set aside because of lack of notice. Judge Gillaspie entered an order on September 21, 1981, which denied the motion to set aside the judgments, and ruled that Puterbaugh failed to demonstrate any unavoidable casualty, because he had failed to show that he was not negligent. From that ruling comes this appeal.

At the hearing before Judge Gillaspie, the clerk of the court when Judge Mayfield’s December order was entered, testified that Judge Mayfield mailed a copy of his order to Puterbaugh’s counsel on the day it was entered. She said that the judge addressed the envelope himself, using the address for counsel shown on all the correspondence and pleadings in the case file.

The issue before us is whether the trial judge abused his discretion in finding that Puterbaugh was not the victim of an unavoidable casualty. Davis v. McBride, 247 Ark. 895, 448 S.W.2d 37 (1969); ARCP Rule 60 (c) (7). We cannot say the judge was wrong in his determination and, therefore, we affirm.

There was evidence that neither Puterbaugh nor his counsel made any inquiry as to the status of the motion for a new trial in the sixteen months between the hearing and the entry of the order denying the motion, or in the four months between the time the order was entered and Puterbaugh got actual notice of the order. As we said in Davis v. McBride, supra:

Parties served with summons must thereafter take notice of the pendency of the suit and subsequent proceedings. A party seeking relief against a judgment on the ground of an unavoidable casualty must show that he has been diligent and without negligence.

And, while there may have been no actual notice to Puterbaugh or his counsel, Puterbaugh did learn of the order on April 6, 1981, and waited over thirty days to challenge the order.

Puterbaugh argues that Judge Gillaspie refused to set aside Judge Mayfield’s order because the motion for relief was not filed within thirty days after Puterbaugh got actual notice of the order. No doubt that was a consideration but Judge Gillaspie found:

That the defendants have failed to demonstrate an unavoidable casualty or misfortune preventing appeal in that more than thirty (30) days elapsed between the time that actual and admitted knowledge of the entry of the December 30, 1980, Order was received by the defendants and the filing of their Motion for Relief. Clearly defendants have demonstrated a lack of diligence in these proceedings since entry of the original judgment.

We interpret those findings to mean that the judge did not find that Puterbaugh was without negligence, and, therefore, he was not entitled to relief on the ground of unavoidable casualty. That was a decision within the j udge’s discretion and to overrule it we would have to find an abuse of discretion — a finding we cannot make.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Dixie BOWEN v. Joe T. DANNA and Kathryn S. DANNA
    82-91
    637 S.W.2d 560
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982
    [Rehearing denied September 13, 1982.]

      A. Wayne Davis, for appellant and cross-appellee.

      Lewis E. Epley, Jr. of Epley, Epley & Castleberry, Ltd., for appellees and cross-appellants.
   Robert H. Dudley, Justice.

This “foreclosure” suit is for acceleration of the maturity of a debt evidenced by a promissory note, for judgment on that promissory note, for judgment on the amount the mortgagees paid for an insurance policy to protect the security and for foreclosure of the mortgage securing the debt. The appellees, the Dannas, sold their home in Eureka Springs to James A. Bowen and appellant Dixie Bowen. As a part of the consideration the Bowens executed a promissory note and a mortgage which contained clauses providing for acceleration of maturity in the event of default. Prior to suit being filed, James A. Bowen, a separate defendant who was not married to Dixie Bowen, conveyed all his interest in the home to Dixie Bowen who alone appeals. The complaint alleges and the proof shows that the Bowens were consistently late in making the monthly installment payments but appellees accepted all payments until the month suit was filed. The Bowens did not pay the real estate taxes and, as a result, the property was sold to the State at a tax sale two weeks before the complaint was filed. The property was redeemed by appellant Dixie Bowen about two weeks after the filing of the complaint. In addition, after this suit was filed the company insuring the property gave notice to the parties that the policy was about • to expire. Subsequently, the policy was allowed to expire. Still later, the insurance company mailed reinstatement notices to the parties and appellees, the Dannas, paid the premium to have the policy reinstated. Eighteen days after the appellees had reinstated the policy, the appellant, who had insufficient funds in her bank account on that particular day, tendered a post-dated check as reimbursement to appellees. They refused to accept the post-dated check and, instead, amended their complaint to allege failure to maintain insurance on the premises as an additional basis for judgment and foreclosure.

The chancellor held that the failure to maintain insurance coverage was the default of a specific condition which authorized appellees to accelerate the maturity of the debt. Consequently, judgment was granted for all principal, unpaid interest to date of judgment, interest accruing from judgment until collected, payments for maintaining insurance coverage, attorney’s fees and the property was ordered sold if the judgment was not paid within 90 days. The Court of Appeals, by a written opinion handed down on March 10, 1982, reversed the trial court. However, upon the filing of a petition for rehearing the Court of Appeals withdrew its opinion and certified the case to this court under Rule 29 (1) (c) as the case involves the interpretation of an act of the General Assembly. We affirm the trial court.

The appellant first argues that the chancellor erred in refusing to apply Ark. Stat. Ann. § 85-1-208 (Add. 1961), the “good faith requirement” for acceleration of the maturity date, which is as follows:

Option to accelerate at will. — A term providing that one party or his successor in interest may accelerate payment or performance or require collateral or additional collateral “at will” or “when he deems himself insecure” or in words of similar import shall be construed to mean that he shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.

The question is whether the phrase “in the event of default,” as contained in the note and mortgage in this case, should be considered in the same light as “at will” or “when he deems himself insecure” or words of similar import contained in the statute. If they are the same, a requirement of good faith attaches to any acceleration of maturity provision, whether exercisable “at will” of the creditor or only upon the occurrence of a specific event which is exclusively in control of the debtor. The chancellor found the requirement was not applicable because the promissory note did not provide that the holder could accelerate it at will or when he deems himself insecure but could only accelerate it upon default by the debtor in making the payments or in keeping the premises insured or in paying the taxes. We affirm.

In the original opinion of Seay v. Davis, 246 Ark. 201, 438 S.W.2d 479 (1969), we applied the good faith requireT ment to an acceleration clause in a note and mortgage even though there was default in a specific condition. “The note in this case falls within the intent of the code, its language being that in the event of default the note may be accelerated ‘at the option of the holder.’” However, in a supplemental opinion, Seay v. Davis, 246 Ark. 627, 438 S.W.2d 479 (1969), we modified our opinion:

In a petition for rehearing the appellants insist that the Code applies only when the contract permits the creditor to accelerate the maturity “at will,” or words to that effect, whereas here there is also a condition in the contract that the debtors must be in default. The Commissioners’ Comment to the cited section of the Code lends support to the appellant’s argument, for it refers to an acceleration “at the whim and caprice of one party.” . . .
We think it proper to modify our original opinion by leaving that question open for future decision . . .

The Court of Appeals in the case of Rawhide Farms, Inc. v. Darby, 267 Ark. 776, 589 S.W.2d 210 (Ark. App. 1979), applied the statute in a case involving default in a specific condition, but in so holding, erroneously relied only upon the original Seay v. Davis opinion as can be seen from the following quote at page 782:

Although that section seems designed to apply only to “acceleration at will” clauses, it was applied in the Seay Case where the mortgage clause was described by the Arkansas Supreme Court as providing for acceleration in the event of default at the option of the holder.

The Court of Appeals recognizing the statutory interpretation issue has now certified this case to us.

The author of an article in 11 Boston Col. L. Rev. 531 notes that:

... Clauses which allow acceleration on the occasion of the insecurity of the creditor are expressly allowed under Section 1-208 of the Code. Section 1-208 is not concerned with default type acceleration clauses. The Code implicitly allows a default type acceleration clause since on default a secured party has the right to repossession of the collateral without judicial intervention; the creditor need only enumerate the occasions of default within the contract. [Emphasis supplied.]

The North Carolina Court of Appeals interpreted the good faith clause in like manner in Matter of Sutton Investments, Inc., 266 S.E.2d 686 (N.C. App. 1980). There the buyer of a shopping center did not keep up with the payments so the seller declared the entire balance due under authority in the deed of trust permitting acceleration for failure to make payment when due. The buyer asserted that the seller’s lack of good faith should preclude him from further action. The court noted:

... This contention is without merit. The statute relied upon is that portion of the Uniform Commercial Code which imposes a good faith requirement upon the exercise of a secured creditor’s option to accelerate “at will” or “when he deems himself insecure.” “These clauses are clearly distinguished from default-type clauses ... where the right to accelerate is conditioned upon the occurrence of a condition which is within the control of the debtor” ... the right of acceleration upon which Richardson’s rights depend in the present case is conditioned upon the occurrence of an event within the complete control of the debtor, i.e., compliance with the terms and conditions contained in the Note and the Deed of Trust. Thus, assuming arguendo that G.S. 25-1-208 is applicable to real property transactions, it is inapplicable to the type of acceleration clause at issue in the present case.

The Missouri Court of Appeals also treated the question in Don Anderson Enterprises, Inc. v. Entertainment Enterprises, Inc., 589 S.W.2d 70 (Mo. App. 1979). A monthly payment due on the purchase price of a sale of three taverns was not made and the seller accelerated the entire amount due pursuant to the sale agreement and the note. The court noted:

Defendants’ brief contains a second point which can be dismssed with a brief discussion. The contention is that the trial court erred in failing to give any accord to the “good faith” requirement of Section 400.1-208 RS Mo. 1978. The statute clearly reflects that it is concerned with situations where a creditor can deem itself “insecure” and accelerate the balance due “at will.” Neither the sale agreement nor the note in the present case provided for such an option. Section 400.1-208 RS Mo. 1978 is inapplicable to this case.

Likewise, we hold that Ark. Stat. Ann. § 85-1-208 is inapplicable where the right to accelerate is conditioned upon the occurrence of an event, such as a lapse of required insurance coverage, which is in the complete control of the debtor. To this extent we modify Rawhide Farms, Inc. v. Darby, supra, and we affirm the chancellor’s refusal to apply the statute. Consequently, we do not address appellant’s arguments which are based solely upon the statute.

The appellant next contends that there should not be an acceleration of the maturity of the debt because there was substantial compliance with the requirement of insurance. She offered a post-dated check 18 days after appellant had reinstated the policy and she obtained a separate policy 4 months and 12 days after reinstatement. At trial, she testified that she stood ready to make reimbursement. Thus, she contends, that by the date of the decree of foreclosure she had substantially complied with the required condition.

Clearly a court of equity can relieve a debtor from the hardship of acceleration of maturity. “Apart from the Code ... a court of equity will protect a debtor against an inequitable acceleration of the maturity of the debt.” Seay v. Davis, supra at 628. Equitable grounds which can prevent a default type of acceleration of maturity include accident, mistake, fraud or inequitable conduct of the creditor. Johnson v. Guaranty Bank & Trust Co., 177 Ark. 770, 9 S.W.2d 3 (1928). However, the chancellor found no equitable grounds to prevent acceleration:

. . . Dixie Bowen has failed to show . . . any fraud or other inequitable conduct... or sufficient accident or mistake on her part by which the court can relieve her from acceleration . . .
# * #
... the plaintiffs have shown... that they are entitled to acceleration... by reason of... Dixie Bowen’s allowing the insurance coverage ... to lapse without showing sufficient excuse on her part for permitting the insurance coverage to lapse. Had the plaintiffs not acted to obtain their own insurance coverage, the property would have been uninsured for a period of at least one month . . .

The chancellor’s finding of facts will not be reversed unless clearly erroneous. ARCP Rule 52 (a); Sharp County v. Northeast Arkansas Planning and Consulting Co., 269 Ark. 336, 602 S.W.2d 627 (1980). On the facts before us, we cannot state that the chancellor was clearly in error in finding that appellant failed to prove fraud or inequitable conduct on the part of the appellees or that she failed to prove accident or mistake on her part.

Appellant next contests (1) the payment of attorney’s fees and (2) the amount of those fees. Appellant, for the first time on appeal, raises a technical argument involving a difference in the language of the note and the mortgage concerning default. The point should have been raised in the trial court if the validity of attorney’s fees was to be put at issue. Even in trial de novo of an equity case, issues cannot be first raised on appeal. Ragge v. Bryan, 249 Ark. 164, 458 S.W.2d 403 (1970). Therefore we do not consider the argument that the awarding of attorney’s fees was invalid.

The argument going to the amount of attorney’s fees is on a different footing. Appellant in her answer pleaded “that an award equal to ten percent of the unpaid principal and interest would be unconscionable.” After the trial court awarded ten percent of the unpaid principal and interest as attorney’s fees, or $9,427.68, the appellant filed a motion asking the trial court to modify that amount. However, appellant withdrew the motion without presenting any evidence on the point. Thus, while the issue is before us, the appellant has made no showing of an abuse of discretion by the trial.judge in setting the fee. The record does not disclose the time, labor or overhead involved, nor does it disclose the customary charge of the bar for similar services. We only know the amount of the unpaid principal and interest, the amount of the fee and that this particular action was a complex foreclosure involving a trial on the merits, with subsequent appeals to the Court of Appeals and now the Supreme Court. The amount of attorney’s fees is within the sound discretion of the trial court and will not be modified unless there is a showing of an abuse of that discretion. New Hampshire Ins. Co. v. Quilantan, 269 Ark. 359, 601 S.W.2d 836 (1980). On the limited record before us we cannot state that there is an abuse of that discretion.

The appellees have cross-appealed and advance two additional reasons to affirm the judgment. They contend that the trial court erred in not finding a default for failure to pay taxes and in not finding a default for failure to timely make installment payments. However, there is no need to decide if there are two additional reasons for granting the same relief. “A cross appeal is required only when the appellee seeks affirmative relief that he failed to obtain in the trial court, not when he won the case below and merely asks that the judgment be affirmed.” Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).

Affirmed on direct and cross-appeal.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion in this case for several reasons. The first payment on the promissory note in this case was due on January 1, 1977. The note was in the original amount of $92,000 and was secured by a real estate mortgage on the property in question. It is not disputed that almost all of the payments, in the amount of $1,000 per month, were tendered and accepted routinely up to two weeks past their due date. The appellant had initially made a $36,000 payment when she purchased the property. When the May 1,1979, payment was received by the appellees on May 12th it was refused and returned to the appellant. They also refused the payments for June, July and August. Apparently, all other monthly installments were paid into the registry of the court up to the date of the trial.

The promissory note in question provided, “if default be made in the payment of any installment when due, either principal or interest, then all remaining installments shall, at the option of the holder, become due and payable at once.” The trial court allowed payment of attorney’s fees on the balance of the note at 10%. However, there was no finding by the court that the appellant was in default on the note. Therefore, there should have been no attorney fees allowed because none are provided for in the mortgage. The mortgage required the appellant to pay the taxes and insurance on the property and provided that in default of payment on the note or upon failure to keep the insurance and taxes paid appellees could exercise an option to declare the balance due. The power reserved to the appellees in the mortgage was that they would have the right to take possession of the property without process of law and to sell it at public sale with or without notice to the appellant.

Since the court did not find that the appellant defaulted on either payment of the taxes or in the payment of principal and interest on the note, they will not be considered further in this dissent. I will only state that the property was redeemed before the end of 1979 which was less than three months after the due date.

Although the suit was filed on December 12, 1979, the appellees did not amend their complaint to allege a forfeiture on the insurance clause until June 26, 1980. Obviously, this was an afterthought and put in merely for the purpose of insuring their ability to reclaim this property upon which they had collected an initial payment of $36,000 and a considerable amount through monthly payments. The appellant had tendered to the appellees the payment of the insurance premium on March 10, 1980, which was more than three months prior to the filing of the suit. Appellant alleged she was ready, willing and able to pay this insurance premium at all times after tender of the payment on March 10, 1980. The decree of the chancellor was not filed until February 19, 1981. The record indicates that all payments had been made into the registry of the court up until this date. Also, the taxes had long since been paid and additional insurance had been enforced on the policy for about a year.

I agree with the majority that Ark. Stat. Ann. § 85-1-208 (Add. 1961) does not apply in this case because there was no acceleration “at will” clause in the note or mortgage. In other words, the security had never been in danger and there was no reasonable expectation on the part of the appellees that their security was in danger. In my opinion, the foreclosure was unconscionable, inequitable and undertaken solely for the purpose of attempting to cause the appellant to forfeit the considerable amount of money which she had paid on this property. The law abhors a forfeiture. We have held that courts of equity will protect a debtor against an inequitable acceleration of the maturity of the debt. Crone v. Johnson, 240 Ark. 1029, 403 S.W.2d 738 (1966); Pulaski Federal Savings & Loan Ass’n. v. Woolsey, 242 Ark. 612, 414 S.W.2d 633 (1967). Therefore, I would reverse the decision of the trial court.


author: Robert H. Dudley, Justice.

text:
    Bruce BURTON v. BANK OF TUCKERMAN
    82-120
    637 S.W.2d 577
    Supreme Court of Arkansas
    Opinion delivered July 12, 1982

      David Hodges, for appellant.

      James A. McLarty of Pickens, Boyce, McLarty & Watson, and C. Eric Hance, for appellee.
   Robert H. Dudley, Justice.

In 1972 the Circuit Court of Jackson County entered a judgment for the appellee Bank of Tuckerman and against appellant Bruce Burton. The judgment was not satisfied and in August 1980 appellee sought to revive the judgment by causing a writ of scire facias to be issued. The writ ordered appellant to appear in court within twenty days and show cause why the judgment should not be revived and the execution levied. Appellant received a copy of the petition for writ of scire facias as well as the writ of scire facias by certified mail at his address in Memphis, Tennessee. He filed a response denying the allegations in the petition and alleging that it was barred by the statute of limitations. No further action was taken until April 1981, when the appellee filed a second petition for writ of scire facias, obtained a writ directing the appellant to show cause why the judgment should not be revived and caused a warning order to be issued by the clerk commanding the appellant to appear. An attorney ad litem was appointed and constructive service was completed. Appellant challenged the court’s jurisdiction and asked the court to quash the second writ. The trial court granted appellee’s second petition and ordered the judgment revived and the lien continued for a three year period from the date of the entry of the order. The question on appeal is whether this judgment was properly revived by a scire facias writ pursuant to Ark. Stat. Ann. § 29-601 et seq. (Repl. 1979). Jurisdiction is in this court pursuant to Rule 29 (1) (c). We affirm.

The appellant first argues the original judgment lien had expired by the time of the filing of the action and cites §§ 29-131 and 29-602 for this contention. Section 29-131 provides “liens... shall continue in force for three [3] years from the date of the judgment and may be revived.” Section 29-602 recites “The plaintiff . . . may at any time before the expiration of the lien on any judgment, sue out a scire facias to revive the same.” Appellant contends that action must be taken within the first three years while the lien is in effector else a revivor action is not allowed. However, in the case of Bird v. Kitchens, 215 Ark. 609, 221 S.W.2d 795 (1940), we interpreted the statute to mean:

. . . while the judgment lien expires at the end of this three year period, unless revived, the judgment itself remains in full force and effect for ten years, and the execution may be issued at any time within this ten year period.

The reference to the ten year period is found in § 29-601:

No scire facias to revive a judgment shall be issued but within ten [10] years from the date of the rendition of the judgment; or if the judgment shall have been aforetime revived, then within ten [10] years from the order of revivor.

The import of this statute was explained in General American Life Insurance Co. v. Cox, 215 Ark. 860, 223 S.W.2d 775 (1949):

... By its terms it grants the full period of ten years within which the writ may issue. To require that the judgment also be taken within ten years would have the effect of reducing the time allowed for issuance of the writ, since provision is made for the filing of an answer and for a hearing upon the question of revivor.

The judgment here was entered in October 1972. The appellee sought to revive the judgment in August 1980. Pursuant to § 29-601 a scire facias may issue because the ten year limitation had not run. Appellee concedes the original judgment lien expired but according to § 29-607, “ ... if the lien of any judgment or decree shall have expired before suing out the scire facias, the judgment of revival shall only be a lien from the time of the rendition of such judgment.” The trial judge correctly revived the judgment lien for a three year period beginning in September 1981.

Appellant also argues that the service of process was not proper because personal service must be utilized before constructive service. Appellee first served appellant pursuant to the long-arm statute, Ark. Stat. Ann. § 27-2502 (Repl. 1979) by sending the petition and writ by certified mail to appellant’s address in Memphis. Appellee then employed a second procedure found in § 29-604 which authorizes a method of services when a defendant cannot be found. This second form of effecting service was used because appellant, residing in Memphis, could not be found in this state within the intent of § 29-604. The method of service used was proper and the appellee complied with the posting requirements of § 29-605. The trial court was correct in ordering the judgment revived and the lien continued.

Affirmed.