author:
George Rose Smith, Justice.
      J. Fred Jones, Justice,

text:
    Lucille KERR v. Jack MURPHY et al
    5-5923
    484 S.W. 2d 684
    Opinion delivered September 25, 1972

      Cooper Jacoway, for appellant.

      Kemp <b Whitmore, for appellees.
   George Rose Smith, Justice.

This suit was brought by the appellant, Lucille Kerr, to obtain a pension as the widow of Jack Kerr, a former Little Rock policeman. The appellees, trustees of the police department’s pension fund, resisted the claim on the ground that Mrs. Kerr is not entitled to a pension, because she did not marry Officer Kerr until after his retirement from the police force. The trial court sustained the trustees’ position and accordingly dismissed the suit.

The issue, upon undisputed facts, is purely one of statutory construction. Officer Kerr retired on February 5, 1952, and began receiving a pension under Act 67 of 1941. In December of 1952 he and the appellant were married. The couple were still married at Kerr’s death in August of 1957. Mrs. Kerr was not then entitled to a pension, because Section 18 of the aforesaid Act 67 provided that “if any policeman marries after he is retired, his widow shall not be entitled to any pension under this Act.”

Act 67 had, with respect to cities having a population of 75,000 or more, superseded Act 250 of 1937, which originally applied to all cities having a population of more than 16,000. There were many differences between the two statutes. To mention a few, they utilized different sources for the creation of the pension fund; the beneficiaries entitled to receive pensions were not exactly the same under the two acts; and the amounts to be paid as benefits were not identical under the two acts. More specifically, and of significance here, Section 8 of the 1937 act provided that the widow of a retired policeman was entitled to a pension, while, as we have said, Section 18 of the 1941 act denied her a pension unless she had married the officer before his retirement.

The decision in this case turns upon the interpretation of Act 206 of 1959. That act, a comparatively brief measure, repealed Act 67 of 1941 and provided that thereafter policemen’s pension funds should be administered under Act 250 of 1937. The appellant apparently asserted no claim immediately following the passage of the 1959 statute, but in 1970 she filed the present suit, seeking to recover a pension from and after the effective date of the 1959 act.

Opposing counsel present persuasive arguments in support of their contentions. The appellant’s brief stresses our opinion in Looper v. Gordon, 201 Ark. 841, 147 S.W. 2d 24 (1941), holding that pension acts are to be liberally construed in favor of those to be benefited. Counsel for the appellees rely upon Cross v. Graham, 224 Ark. 277, 272 S.W. 2d 682 (1954), where we held, in harmony with the basic rule that legislation is to be construed to be prospective only in its operation, that certain acts increasing policemen’s pensions were “forward-looking in their operation . . . and envisage the attachment of certain rights to a pensionable status to be achieved in the future.” Upon that reasoning we held that increased pensions were payable only to those beneficiaries who qualified for them after the passage of the acts. Both the cited cases are persuasive, but neither is so precisely in point as to be controlling.

It is our conclusion that the governing legislative intention is clearly discernible in the two sentences of Act 206 of 1959 which declared the purpose and effect of that act. Section 1 of the act specifically repealed Act 67 of 1941. Section 2 of the 1959 act then stated its purpose and effect, in this language:

From and after the effective date of this act policemen’s pension and relief funds that have been established in cities of seventy-five thousand population, or over, shall be assessed, collected, administered and benefits paid in accordance with the provisions of Act. No. 250 of the Acts of the General Assembly of the State of Arkansas of 1937, and all Acts amendatory thereto. Provided, however, that nothing herein shall alter, amend or change, increase or diminish, any retirement benefits being paid to any retired policeman, or to the widow or dependents of any [deceased] policeman or deceased retired policeman, at the time this act goes into effect.

Despite the positive legislative assertion in the second sentence that the act is not to alter, amend, change, increase, or diminish existing pensions, the appellant urges us to attach overwhelming importance to the phrase “retirement benefits being paid.” It is argued that since no retirement benefits were “being paid” to Mrs. Kerr when the 1959 act took effect, the quoted phrase therefore evidenced a legislative intent to confer upon Mrs. Kerr, and upon others similarly situated, a brand-new right to a pension under the 1937 statute.

We do not find that reasoning to be sound, because it would require us to construe a single phrase in the second of the quoted sentences without regard to its context and without regard to the overall legislative intent.

The first of the two quoted sentences in the 1959 act declared that after the effective date of the act policemen’s pension funds “shall” be administered, and benefits paid, in accordance with Act 250 of 1937. Had the draftsman of the act stopped with that sentence, a multitude of questions would have been left unanswered. As we have seen, Act 67 of 1941 (the act being repealed) and Act 250 of 1937 (the act being reinstated) provided different sources of funds for differing pensions to be paid to differing beneficiaries. The mere substitution of the 1937 act for the 1941 act, without explanation, would obviously have given rise to much uncertainty. With respect to the persons entitled to benefits and the amount of those benefits, which act should control when the two statutes were found to be in conflict? To what extent were vested rights created by the pension system?

Those questions were set at rest by the second quoted sentence, which declared that “nothing herein shall alter, amend or change, increase or diminish,” the retirement benefits being paid on the effective date of the act. We think it too plain for serious argument to the contrary that the dominant purpose of the second sentence was to make it absolutely clear that the substitution of the 1937 statute for the 1941 statute was not to disturb retroactively rights that were already in effect under either act.

Yet the appellant’s argument would read into that second sentence an exactly contrary intention — that of using the two words “being paid” as an almost hidden device for disturbing the status quo retroactively, by creating rights where none existed at the time of the passage of the act. We find it impossible to believe that the legislature selected the language in question with the deliberate intention of putting into effect two approaches to the same problem completely at war with each other. We conclude that the trial court was correct in its interpretation of the statutes.

Affirmed.

Jones, Byrd, and Holt, JJ., dissent.

J. Fred Jones, Justice,

dissenting. I agree with the majority that the issue in this case is purely one of statutory construction, but I am unable to read out of § 2, Act 206 of 1959, the legislative intent the majority seems to read into it.

Officer Kerr retired from the Little Rock Police Department February 5, 1952, and received a retirement pension in the amount of $125 per month. On December 19, 1952, he married the petitioner, Lucille Kerr, and they remained married to each other until Officer Kerr’s death on August 31, 1957. Mrs. Kerr has not remarried but remains the widow of Jack Kerr. Officer Kerr retired and started drawing his benefits under the provisions of Act 67 of 1941 which remained in effect until repealed by Act. 206 of 1959.

The Policemen’s Pension and Relief Fund was originally created by Act 250 of the Acts of the General Assembly for 1937. As originally enacted, it applied to cities of not less than 16,000 inhabitants and by amendment in 1939 the number of inhabitants was lowered to 8,000. The 1937 Act, after providing for the creation, financing and administration of the pension fund, then provided by § 8 as follows:

"If any member of said department shall, while in the performance of his duty, be killed or dies as a result of injuries received in the performance of his duty, or shall die of disease contracted by reason of his occupation, or shall die from natural causes while in said service, shall leave a widow or child or children under the age of 16 years survive, the said board of trustees shall direct a payment from said pension and relief fund monthly to such widow, while unmarried, of fifty ($50.00) dollars, and for each child until it reaches the age of 16 years ten ($10.00) dollars, should he leave no widow or children, but a widowed mother, solely dependent upon his support, the board shall pay the sum of fifty ($50.00) dollars monthly, as long as she remains unmarried. Provided, that any member of the police department retired and pensioned under the provision of this Act shall die while so retired and pensioned, leaving a widow or children or widowed mother surviving, shall be entitled to a pension under this act.”

It is clear to me that if Officer Kerr had retired and been pensioned under the provisions of this 1957 Act, his widow would have been entitled to pension benefits following his death. When Officer Kerr did retire and start receiving his pension in 1952, there were two Policemen’s Pension Fund Acts in effect. As above stated, the 1937 Act applied to cities with 8,000 or more inhabitants and Act 67 of 1941, under which Officer Kerr received his pension, provided for a policemen’s pension and relief fund in cities having a population of 75,000 and a paid police department in excess of 60 policemen. After providing for financing and administration of the fund under this 1941 Act, § 18 then provided as follows:

“If any policeman or retired policeman shall die, leaving a widow, the Board shall pay the widow a pension of Fifty ($50.00) Dollars per month so long as she remains unmarried, and if the deceased shall leave surviving him children under the age of eighteen (18) years, each child shall be paid Ten ($10.00) Dollars per month until it reaches the age of eighteen (18) years, if it remains unmarried. Provided that no family of a deceased policeman or deceased retired policeman shall receive a total pension of more than Seventy-Five ($75.00) Dollars per month. Provided further, that if any policeman marries after he is retired, his widow shall not be entitled to any pension under this Act.” (Emphasis added).

It will be noted that the 1941 Act provided the same monthly benefits to the widow and dependent children as did the 1937 Act except that the 1941 Act limited the total amount to be paid a widow and dependent children to $75 per month, and the 1941 Act provided benefits for dependent children until 18 years of age rather than 16 as provided in the 1937 Act. The 1941 Act also provided that if a policeman should marry after retirement, his widow would not be entitled to a pension under the Act.

The 1941 Act repealed all laws or parts of laws in conflict with it, and the only law in conflict with it was the 1937 Act as amended in 1939. Thus the 1937 Act remained in full force and effect except in cities having a population of 75,000 and police department in excess of 60 policemen. It was while both the 1937 and 1941 Acts were in effect that Officer Kerr retired from the police force, started receiving his pension, and married Mrs. Kerr in 1952, and died in 1957. Mrs. Kerr, was the widow of Officer Kerr after his death and would have been eligible for widow’s benefits under the 1937 Act had Officer Kerr been receiving benefits under that Act rather than under the 1941 Act applicable to cities of 75,000 population. The only reason Mrs. Kerr was not entitled to a pension upon the death of Officer Kerr was because the 1941 Act simply said: “If any policeman marries after he is retired, his widow shall not be entitled to any pension under this Act.” Officer Kerr married Mrs. Kerr after he retired, so there is no question that Mrs. Kerr was not entitled to a pension under the 1941 Act.

In 1959 the situation changed as to widows and dependent children of deceased policemen, for by Act 206, of 1959, the 1941 Act applying to cities of 75,000 was repealed outright in its entirety, § 2 of the 1959 Act being as follows:

“From and after the effective date of this act policemen’s pension and relief funds that have been established in cities of seventy-five thousand population, or over, shall be assessed, collected, administered and benefits paid in accordance with the provisions of Act No. 250 of the Acts of the General Assembly of The State of Arkansas of 1937, and all Acts amendatory thereto. Provided, however, that nothing herein shall alter, amend or change, increase or diminish, any retirement benefits being paid to any retired policeman, or to the widow or dependents of any deceased policeman or deceased retired policeman, at the time this act goes into effect. Provided, further, that the ten per centum of all fines and forfeitures collected by the police department of such city for violations of city ordinances and added to such pension funds as provided by said Act 250 of 1937, as amended, shall not apply to any city that now has, or hereafter has, an assessed property valuation in excess of $80,000,000.00” (Emphasis added).

The only reason Mrs. Kerr did not start receiving a pension under the 1937 Act upon the death of Officer Kerr in 1957, was because the 1937 Act was in conflict with the 1941 Act and no longer applied to cities having a population of 75,000. It is my opinion, therefore, that when the 1941 Act was repealed in 1959, the conflicting provisions of the 1937 Act were no longer conflicting and again became applicable to all cities having at least 8,000 inhabitants, and that the appellant Lucille Kerr became eligible for pension benefits under the provisions of the 1937 Act.

The majority recognize the rule announced in Looper v. Gordon, 201 Ark. 841, 147 S. W. 2d 24, where we said:

“Pension acts should be -liberally construed in favor of those to be benefited. The rule is stated in 43 C. J. 813, § 1408, as follows: 'Like other pension laws, pension acts applicable to members of the police force will be liberally construed.’ Again in § 1493, the rule is stated: 'As in the case of other statutes, pension acts applicable to firemen should be construed to give force and effect to the legislative intent as embodied therein. The purpose of the acts being regarded as beneficial, they should be liberally construed in favor of those to be benefited.’ ”

It seems to me that the majority reads far more legislative intent into the proviso of § 2 of the 1959 Act than I am able to read out of it. We may reasonably assume that there were dependent children between the ages of 16 and 18 drawing $10 per month under the provisions of the 1941 Act and when the 1941 Act was repealed by the 1959 Act, the legislature simply provided: "... that nothing herein shall alter, amend or change, increase or diminish, any retirement benefits being paid to any retired policeman, or to the widow or dependents of any deceased policeman or deceased retired policeman, at the time this act goes into effect.” (Emjphasis added). I simply cannot read into this language any legislative intent at all relative to the rights of a widow to whom a pension is not being paid. As I construe the language, it only applies to retirement benefits “being paid to any retired policeman, or to the widow or dependents of any deceased policeman or deceased retired policeman.” (Emphasis added).

I would reverse the judgment in this case and remand with directions to grant the petition for a writ of mandamus directing the respondents to process Mrs. Kerr’s petition for benefits under the 1937 Act.

Byrd and Holt, JJ., join this dissent.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Billie James BAXTER v. Hon. Kay L. MATTHEWS, Chancellor, and Willa A. BAXTER
    5-5973
    484 S.W. 2d 702
    Opinion delivered September 25, 1972

      Guy Jones Jr. and John C. Earl, for Petitioner.

      Howell, Price, Howell ir Barron, for Respondents.
   Lyle Brown, Justice.

This is a child support case. The cause reached this court on a petition for writ of certiorari, seeking to quash a contempt citation and order of commitment against the father. A temporary stay was granted subject to the making of bond. The entire record is now before us and we dispose of the case on its merits. The only contention of petitioner, Billie James Baxter, is that the chancellor erred in failing to find that changed conditions existed that rendered him unable to comply with the support order.

The parties were intermarried in 1955. To the union were born four children who, at the time of the divorce in March 1971, were of the ages of 14, 13, 11 and 4 years. The divorce granted the wife was not contested. The decree provided for child support payments of $200 per week until May 1,1971 and $250 per week thereafter.

In September 1971 the respondent Willa Ann Baxter filed her petition alleging non-payment of child support and asked that the father be held in contempt. At a hearing thereon the following December petitioner was found in contempt but was released on the posting of a cash bond of $2000. In response to a subsequent petition for citation the original finding of contempt was reaffirmed. At both hearings it was the defense of the father that there had been a substantial change in his financial ability to pay the amounts ordered.

Petitioner was his only witness. The evidence was directed to the claims that at the time of the first hearing he was indebted to the extent of some $90,000, approximately $40,000 of which had been reduced to judgments; that he was in a car wreck in 1970, receiving serious injuries which handicapped him in his dental practice; and that his income had been reduced approximately sixty per cent. His evidence showed that he was delinquent in a number of installment obligations, including, of course, support payments.

Petitioner’s testimony on cross-examination tended to weaken considerably his contention of change in circumstances. The car wreck from which he claimed some physical disability occurred prior to the decree of divorce. It also appears that many of the debts which he described originated prior to the decree. According to the abstract of pleadings, petitioner offered no testimony controverting the wife’s petition for divorce and child support; hence it is logical to assume that he considered himself at that time capable of making the required payments. Petitioner patronizes some of the more expensive restaurants in Little Rock and “I run a liquor tab” at one of the eating places. The doctor apparently practices his profession weekly for the same length of time as most dentists. Petitioner’s business records were subpoenaed. His monthly income and office expenses were tabulated for nine months in 1971. His income in excess of office expenses for that period averaged $2114 per month. In January 1972 petitioner deposited $6300 in his bank account.

Unquestionably petitioner is heavily in debt. Much of that indebtedness was accumulated for the purchase of luxuries, some of which have been replevied. Unquestionably, however, petitioner is burdened with debts for necessities, such as money borrowed for his schooling, and for office equipment. On the other hand these four children constitute a serious financial burden on the mother and certainly they must be fed, housed, clothed, and educated. It is unquestioned that during several months petitioner made no payments whatever and on one occasion when his office income grossed $6300 he paid $50.00 on his support obligation. Petitioner might have been in better standing had he been able to establish that he had in fact made substantial payments on the weekly installments; to the contrary the record shows otherwise.

The chancellor found that petitioner had been in willful disobedience of the court’s order and we do not reverse such finding unless we can say that the decision was against the preponderance of the evidence. Ex Parte Johnston, 221 Ark. 77, 251 S.W. 2d 1012 (1952). We do not so find.

Writ Denied.


author: John A. Fogleman, Justice.

text:
    Marie C. HICKS v. Sula M. HALL and Ronald Murry HALL
    5-5983
    484 S.W. 2d 696
    Opinion delivered September 25, 1972

      Brown, Compton ir Prewett, for appellant.

      Bruce Bennett, for appellees.
   John A. Fogleman, Justice.

On May 8, 1971, at 10:25 a.m., the appellant, Marie C. Hicks, was driving her vehicle in a westerly direction on the Myrtle Grove Road (Highway 335) on her way to services at the Rehobeth Baptist Church, located on the south side of the road and at the crest of a hill. As appellant was making a left turn off of the Myrtle Grove Road and onto the church parking area, the appellee, Sula M. Hall, who was traveling in the opposite direction came over the crest of the hill and collided with the rear end of the appellant’s vehicle at a point approximately two feet four inches from the south edge of the road.

The court, sitting without a jury, found that appellant was 60% negligent and appellee was 40% negligent and entered judgment for the appellee, Ronald M. Hall, in the sum of $1,442.42 and for the appellee, Sula M. Hall, in the sum of $2,782.80 including 60% of $3,500 for pain and suffering endured. From this verdict and judgment Mrs. Hicks appeals, asserting that there is no substantial evidence to support either the finding of the trial court that the negligence of appellant was greater than that of appellee or the fixing of Sula M. Hall’s damages for pain and suffering at $3,500.

We have carefully reviewed the evidence as abstracted and find substantial evidentiary support for the circuit court’s finding on the question of negligence. There was evidence from which the court might have found that appellant negligently crossed the center line of Highway 335 in making a left-hand turn from a point just west of the crest of a hill into a private entrance to a church parking lot, without giving any signal, when her view of approaching traffic was unobstructed for three-fourths of a mile, and that of a driver approaching from the opposite direction was limited to approximately 100 feet. Sula Hall testified that appellant turned across the highway when the two vehicles were only 100 feet apart without coming to a stop or giving any indication that she was about to turn. See Ark. Stat. Ann. §§ 75-618 — 620 (Repl. 1957); Pilgrim v. Joyner, 234 Ark. 945, 355 S.W. 2d 616. If appellant’s range of vision of approaching traffic extended for three-fourths of a mile, it would have been impossible for her not to have seen the approaching vehicle driven by Mrs. Hall, if she had been keeping a proper lookout and observing the rules of the road governing left turns. As appellant points out, there was evidence from which the court might have believed that Sula Hall approached a place known to her to be hazardous at a speed as high as 65 miles per hour, and that the skid marks made by her vehicle indicated that she bore slightly to her right before the collision rather than to her left as she claimed, when the collision might have been avoided had she turned to her left. We are unable to say that Mrs. Hall’s negligence was, as a matter of law, greater than that of Mrs. Hicks.

We are also unable to say that there was no substantial evidence to support damages of $3,500 for pain and suffering. Mrs. Hall’s physician prescribed medication for headache and nausea when he saw her at the hospital shortly after the occurrence. Three days later she complained to him of persistence of headaches and nausea, which even caused her to awaken at night and he prescribed a pain medication. On May 13, he caused her to be admitted to a hospital because of persistent headaches and nausea, and she remained there until May 18, after which he restricted her activities until May 24, because of his diagnosis of concussion. His discharge summary showed that she was still having difficulty with headaches and peculiar sensations at night. When he saw her on November 19, 1971, she reported that she still had occasional headaches, but that the last severe one had occurred about six weeks earlier. This doctor said that headaches and nausea for a reasonable period of time after a concussion were not unusual and that a small percentage of those who suffer head injuries have a symptom complex of dizziness, headache and nausea which usually ends within six to twelve months after the injury. He testified that a brain concussion destroys a certain amount of blood vessels in the brain and very small capillaries are disrupted, and could, for a long time after discharge by a treating physician, cause peculiar sensations and headaches from which complete recovery might require several months.

Mrs. Hall stated that, at the time of the trial, she was still having persistent headaches and nausea and taking the pain medication prescribed by Dr. Pirnique and that she had never had headaches, nausea or persistent insomnia before this collision. She stated that she had returned to the hospital under the supervision of Dr. Ellis, her regular physician, only one and one-half months prior to the trial, because of headaches. Her husband said that on many occasions he had come home from work and found Mrs. Hall crying because of a severe headache and that, following the accident, she had been unable to carry out her duties as a housewife and mother.

The judgment is affirmed.


text:
    Harris ULMER v. STATE of Arkansas
    5719
    484 S.W. 2d 691
    Opinion delivered September 25, 1972

      William C. McArthur, for appellant.

      Ray Thornton, Atty. Gen., by: Jay N. Tolley, Asst. Atty., Gen., for appellee.
   John A. Fogleman, Justice.

On August 4, 1971, Harris (Tootsie) Ulmer was found guilty of first degree murder of Paul Guajardo on the 26th day of June, 1971. He asks us to reverse the judgment on the following grounds:

I. The trial court erred in modifying defendant’s instruction number three as tendered and subsequently giving the modified version in the instructions to the jury.
II. The trial court erred in failing to declare a mistrial due to unsupported and inflammatory statements by the prosecuting attorney in his closing arguments to the jury.
III. The trial court erred in allowing, in rebuttal Testimony by Deputy Sheriff Comer Johnson and Chief Deputy Prosecuting Attorney Robert Brown, references to prior statements by defense witness Evonne Smith without the introduction of the available written transcripts of the prior statements.
IV. The evidence as elicited at the trial is insufficient to sustain the jury’s verdict of murder in the first degree.

At the outset, we will say that we have carefully reviewed the evidence in the light most favorable to the state, and are unable to say that there is no substantial evidence to support the jury verdict. The principal argument advanced by appellant on this point is that the evidence clearly shows that he acted in the heat of passion, and without deliberation and premeditation. We do not agree.

There was testimony showing that: after a 20-or 30-minute exchange of words among Ulmer, the deceased, Alex Guajardo and Johnny Whitehead, across the street from Smith’s DX Station, Paul and Alex Guajardo returned to the service station, where they had been before leaving to talk to Whitehead; during the conversation Ulmer had remonstrated with Whitehead about alleged mistreatment of Ulmer’s sister, the wife of the operator of the station, who assisted in the business, and the deceased demanded an apology by Ulmer to Whitehead for maligning Whitehead’s father; Paul, standing by a soft drink box at the service station, then exchanged words with appellant and appellant went into the building and emerged three or four minutes later carrying a .22-caliber pistol with which he immediately shot Paul Guajardo, who died as a result of the wound then inflicted; Paul Guajardo was in a sitting position talking to Ulmer’s sister when shot, and Ulmer fired the shot at a “downward angle”; the shot that caused decedent’s death entered his right chest and went downward and posteriorly, indicating that it came from above and the right of the victim’s head; Ulmer’s sister prevented him from firing other shots at one or both of the Guajardo brothers. Premeditation and deliberation may be inferred from the circumstances of the case, such as the character of the weapon used and the manner in which it was used, the nature of the wounds inflicted, the conduct of the accused and the like. House v. State, 230 Ark. 622, 324 S.W. 2d 112; Weldon v. State, 168 Ark. 534, 270 S.W. 968. See also, Walker v. State, 241 Ark. 300, 408 S.W. 2d 905, appeal dismissed, cert. denied, 386 U.S. 682, 87 S. Ct. 1325, 18 L. Ed. 2d 403, reh. denied, 387 U.S. 926, 82 S. Ct. 2027, 18 L. Ed. 2d 987.

Whatever may have occurred between Ulmer and Paul Guajardo, prior to the time Ulmer went into the service station, admittedly to retrieve the pistol he had left there, it was within the province of the jury to find that the shooting of Guajardo was a deliberate, premeditated act, regardless of any previous provocation.

We find no error in the court’s modification of appellant’s requested instruction No. 3. As offered, the instruction read:

It is competent to prove threats made against the other, if such have been made, for the purpose of shedding light upon the state of mind existing between the parties at the time of the difficulty, and also for the purpose of shedding light upon which was the aggressor in the combat. Likewise, it is competent to prove similar communications made to the defendant. Threats, or such other communications are to be considered by you, if any such were made, for the purpose of shedding light as to the condition of mind between the two parties at the time of the difficulty, and as I have said before, to shed light upon which was the aggressor in the difficulty.

As modified and given, it read:

It is competent to prove threats or other communications made by one against the other, if such have been made, for the purpose of shedding light upon the state of mind existing between the parties at the time of the difficulty, and also for the purpose of shedding light upon which was the assailant in the combat.

Appellant’s objection to the instruction as given was a general one, which did not mention the ground now argued. In the first place, we do not agree that the court’s action was arbitrary. It is a much clearer and more concise instruction, as modified. We do not know of any rule that prevents the court from modifying a requested instruction to achieve such an end, even tnough the instruction as requested may not be an erroneous declaration of law. Circuit judges should be encouraged to do this, not discouraged. Furthermore, we do not agree with appellant that the modification so emphasized the consideration of threats as to limit the jury’s consideration of “similar communications” or “non-verbal aggressive acts.”

During the opening argument on behalf of the state, appellant’s trial counsel (not the same attorney representing him on this appeal) objected to the following statement by a deputy prosecuting attorney:

MR. HAMNER:
. . . Well, Mr. Rosteck asked them, “My goodness, didn’t you have time to take that knife out of his pocket on the way to the hospital?” What did she say? She said, “My husband was dying. I didn’t think about it.”
MR. ROSTECK:
Now, if the Court please, I did not say that and I object to him making an inference that I even suggested she took a knife out of her husband’s pocket and I don’t like it.

In the closing argument the following occurred:

MR. ANDERSON:
. . . He jumped on him a third time. He said, “I want to know, it’s important, what was it? You remember, I got up and objected; badgering the witness. He had answered, he had said he didn’t know.
MR. ROSTECK:
If the Court please, I want to object, now. I know that this Court knows and the jury knows that when Alex testified on that thing he first told me he was sitting on the ground and I asked him and he said, “Yeah.” I don’t want him misrepresenting the facts here. I am getting tired of this.
MR. ANDERSON:
Well, I was not misrepresenting the facts. I am sure they will agree. May I continue, Your Honor?
THE COURT:
Go ahead. I think the jury can remember what he testified to.
* # *
MR. ANDERSON:
. . . Now, all of the sudden, for the first time she remembers him pulling a knife out with a long, silvery blade right then and advancing upon the defendant.
MR. ROSTECK:
If the Court please, there is no testimony he pulled a knife out of his pocket and advanced on him. I am getting tired of this. I want him to stick to the facts. We emphasized repeatedly that he never pulled a knife out of his pocket at any time. No one saw it. I am getting tired of this.
MR. ANDERSON:
I heard specific mention, Your Honor, of a knife specifically described as a knife, specifically talked about a blade of a knife.
THE COURT:
I don’t recall anything like that, but go ahead.

The record discloses that appellant’s counsel actually asked Mrs. Guajardo if a knife allegedly possessed by her husband could not have easily been disposed of in the interval between the time he was taken from the service station by his brother Alex and the time they picked her up at her home en route to the hospital. He also asked her whether she or the brother took a knife from Paul and whether this brother could have disposed of the knife before the two reached her house. The witness responded:

I don’t think he would have taken time. My husband was dying. He wouldn’t have took time to search him.

Alex Guajardo testified on direct examination that, after returning to the service station, his brother Paul was sitting in a chair in front of an ice box and in front of the entrance to the service station building facing and talking to Tiny Smith, who had later returned to the station and was seated when Ulmer came out the door with his gun in his hand, walked three steps, placed the gun “in” Paul’s ribs and shot him. On cross-examination this witness was asked to tell what happened and repeated virtually the same version that he had previously given. On a detailed cross-examination as to the position of the two chairs in relation to each other and to other objects, Alex admitted that he might have been mistaken as to the presence of an ice machine on the day of the shooting. Later appellant’s counsel again inquired whether Paul was sitting down when shot, and Alex clearly responded that he was, after which the cross-examiner commenced a new course of examination as to the position and activities of Paul Guajardo and Tiny Smith when Ulmer came out with his pistol. When the witness answered detailed questions as to the position of Tiny Smith, appellant’s counsel asked the witness if he was as sure about that as he was about anything else, provoking a deputy prosecuting attorney to object that the witness had stated he was “pretty sure,” that he did not know for sure and that the cross-examiner was badgering the witness. Thereafter, the court made an inquiry of the witness and appellant’s counsel continued an even more extensive cross-examination of the witness. During the cross-examination, the examiner had previously asked the witness if he were as positive that Paul was sitting as he was about anything else and in questioning the witness about Paul’s or Mrs. Smith’s position stated “This will be important,” “I want you to be sure about this,” and “Well, now, I am confused and I am sure the jury is, too. It’s important to this defendant as to where she was located, Judge.”

In her testimony on direct examination Mrs. Smith said that her brother, Harris Ulmer, went into the service station building, came out and said to his wife who was sitting near the door, “Let’s get the hell out of here.” When asked if Ulmer said any more to his wife, the witness answered:

He didn’t say any more to her at that time. She had her purse and they was ready to walk off and, so Paul, he taken a couple of steps toward her, and he still had his hand in his pocket, and fumbling around, and he, it looked to me like a knife that he had pulled out of his pocket, and it looked like the blade was open, and when he taken those two steps forward, why, Tootsie looked around, and he had his pistol down between his belt and his shirt here (demonstrating), and it just automatically came out.

Later, but still on direct examination, the following questions and answers are recorded:

Q. Now, if you were there, and you said Paul took a step or two, that would put him right more or less in this angle in front of you, would it not?
A. Yes, sir.
Q. Is that right?
A. Yes, sir.
Q. Did you have a good view to his right pocket?
A. Yes, sir.
Q. You did. I want you to be sure, now, Tiny, because it’s very important. You said you saw Paul with his hand in his pocket fumbling around?
A. Yes, sir.
Q. Are you sure that you saw what you think or you say was a knife, that you saw in his pocket?
A. Yes, sir, because he pulled it out and it looked like I could see, I would say, that much (indicating) of the blade.
Q. Did he ever pull it all of the way out of his pocket?
A. To the best of my knowledge, no.
Q. He didn’t, but he pulled it out enough that you could see what it was?
A. Yes, sir.
Q. And at that instant what did your brother do? What did Tootsie do?
A. You mean, after he shot?
Q. No. After he pulled his knife.
A. That’s when he looked around and he seen that he pulled something out of his pocket, because—
Q. (Interposing) You don’t know what Tootsie saw. What did Tootsie do?
A. That’s when he shot.

Whatever deviation there was from the testimony and from the occurrences taking place during the examination of Mrs. Smith, the argument was not so devoid of evidentiary foundation as to justify the declaration of a mistrial. Appellant did not move for a mistrial, and the circuit court reminded the jury just before it retired that the arguments of the attorneys were not evidence, adding:

It’s up to you to remember what the testimony was in the case, and you are instructed that as far as evidence in the case, there is no indication that the knife actually was out. I think there was some rebuttal testimony going to one of the witnesses credibility regarding the knife being out, but that is not to be considered as evidence in the case, only goes to the credibility of the witness.

The trial judge was in a better position to judge the effect of the arguments than anyone else, and his admonition to the jury having been given without objection by anyone and without any request for any other action, we cannot say that any prejudicial error was committed.

Appellant contends that the circuit judge erred in permitting Deputy Sheriff Comer Johnson and Chief Deputy Prosecuting Attorney Robert Brown to testify orally, in rebuttal, about statements made to them by Evonne (Tiny) Smith, appellant’s sister, which were contradictory of her testimony as a witness for appellant, without introducing written statements given these officials by this witness. Appellant argues here that this violated the best evidence rule. No such objection was made in the trial court. As a matter of fact, appellant’s objection to introduction of written statements made by this witness was sustained by the circuit judge simply because the statements had not been identified by her. Appellant is in no position to raise the question now argued by him for the first time on appeal.

We find no reversible error and affirm the judgment.

       In trials taking place after December 31, 1971, we do not consider any general objection to a jury instruction. See Rule XIII of Uniform Rules for Circuit and Chancery Courts, adopted by per curiam order of December 31, 1971.

       Another deputy prosecuting attorney.


author: Conley Byrd, Justice.

text:
    METROPOLITAN LIFE INSURANCE COMPANY v. Robert E. ADAIR
    5-5988
    484 S.W. 2d 703
    Opinion delivered September 25, 1972

      Streett ¿r Plunkett, for appellant.

      Anthony G. Kassos and Spencer ér Spencer, for appellee.
   Conley Byrd, Justice.

The main issue on this appeal is whether the brain tumor suffered by the wife of appellee Robert E. Adair had manifested itself before appellant issued its major medical policy on April 1, 1961.

The record shows that appellee through the two corporations owned by him, had carried health insurance with appellant for some time. In September of 1968, appellee’s wife was operated on for lung cancer and payments were made by appellant under its health policy. On February 27, 1969, appellee through his corporations made a group application for a major medical policy. The policy was delivered on April 1,1969, and contained the following exclusion:

“This Hospital and Surgical Expense Insurance does not cover, and no payment of any kind with respect to a covered family member will be made for, any medical service or supply:
(a) that is furnished during the first six months after the date such person became a covered family member, or during any continuous period of hospital confinement or nursing home confinement in conjunction therewith which commenced during the first six months after such person became a covered family member, as a result of injury sustained, sickness contracted or abnormal physical condition existent prior to such date, except that this exclusion will be waived if the sickness or physical condition had not manifested itself prior to the date the person became a covered family member,”

Appellee testified that, following the September 1968 lung operation, he and his wife returned to El Dorado where she gradually improved. Her condition was such as to permit them to make a trip to Dallas on October the 9th and 10th, where he attended the Texas-Oklahomá football game. His wife visited his brother-in-law at the Veteran’s Hospital. Within six weeks after the operation, Mrs. Adair was able to do all of her activities. In addition to her cooking and housework. they entertained at night. In accordance with their custom for many years, they rented a house in Hot Springs during the racing season. While there, they attended the races every day except the wife did not go on Saturdays because of the crowd. On April 2, 1969, they were entertaining a couple and their son from Dallas, Texas, a lady from Crockett, Texas, and a lady from Little Rock. His wife served as hostess and prepared the food that was served. She took care of the guests and went to bed around midnight. At the breakfast table around 7:30 a.m. while drinking coffee was the first time his wife complained of anything with regard to the brain tumor. At that time she remarked, “You know, I can hardly hold this coffee cup in my hand.” The coffee began to dribble down the side of her mouth and in a few minutes she developed. (Jacksonian type) seizures. Mrs. Adair was removed by ambulance to St. Joseph’s Hospital in Hot Springs. From there she was transferred to Warner Brown Hospital in El Dorado and then transferred to Houston, Texas, where brain surgery disclosed a brain tumor approximately four centimeters in diameter.

The apparent good health of Mrs. Adair was corroborated by guests who had been attending the races with the Adairs.

Dr. Paul Henley, the Adair family physician, testified that on October 10th, he did a post operative follow-up for the doctors in Houston. He described her as convalescing nicely at that time. At that time she weighed 123 lbs. He was well pleased with her blood pressure. Mrs. Adair came by in December to get a flu-shot. While there she was given a female hormone shot. Approximately two weeks later she got the second flu-shot. He again saw her in January at which time she was given a routine hormone shot. According to Dr. Henley, prior to April 3, 1969, Mrs. Adair did not make any complaints or have any signs or symptoms of anything connected with a brain tumor. Prior to September 1968, Mrs. Adair suffered from menopausal symptoms and also high blood pressure. The high blood pressure had been under surveillance for eight or ten years, but during her December and January visits, her blood pressure was normal.

The medical report from the Houston doctors following the September 1968 operation stated:

"It was the impression of the surgeon that all the tumors had been removed and there was no other evidence of metastasis found on exploration. It was thought that no other therapy such as radiation or chemotherapy was indicated at the present time.”

Dr. Kenneth Duzan, called by appellant, described the brain tumor as metastatic carcinoma. He reviewed the medical records, including a medical history taken by Dr. Larkin Wilson of El Dorado which stated:,

"This forty-nine year old white female is admitted having developed Jacksonian type seizures isolated to the left hand and face. Approximately eight to ten days ago the patient developed some right facial drooping which cleared over several days. Four days prior to the admission to Warner Brown the patient was noted to have onset of jerking type motion of the left face and left arm. She was seen in St. Joseph Hospital in Hot Springs, Arkansas, where seizure activity with eyes deviated to the left were observed. She was begun on Dilantin and Phenobarbital but has since had several episodes of seizure activity requiring intermittent intravenous Valium for therapeutic control. She was transferred to Warner Brown.”

Based upon this history and the pathology reports, Dr. Duzan concluded that the tumor removed from the brain originated in the lung and tha;t the tumor in the brain had developed over a period of tithe, at least as long as the time between the first and second operation.

The jury found the issues in favor of appellee and under the record here, we cannot say that there is no substantial evidence to support its verdict.

In Lincoln Income Life Insurance Co. v. Milton, 242 Ark. 124, 412 S.W. 2d 291 (1967), the claimant admittedly had the symptom that eventually sent her to the doctor for a number of months before the issuance of the policy. Here the wife’s apparent good health was an issue of fact for the jury.

Appellant also complains of the failure of the trial court to give two of its requested instructions. We find no merit in this contention because the definition of the term “manifest itself” was properly given in other instructions by the court.

Appellee’s counsel is allowed an additional fee in the amount of $1,000.

Affirmed.


author: Frank Holt, Justice.

text:
    Luther B. FRANKS v. AMOCO CHEMICAL COMPANY et al
    5-6036
    484 S.W. 2d 689
    Opinion delivered September 25, 1972

      McKay, Chandler if Choate, for appellant.

      Shackleford if Shackleford, for appellees.
   Frank Holt, Justice.

The appellant claims workmen’s compensation benefits based upon an alleged spinal injury while an employee of the appellee, Amoco Chemical Company. Following a denial of the claim by the referee, the Workmen’s Compensation Commission found adversely to the appellant. The circuit court affirmed the Commission’s finding. For reversal of that judgment the appellant contends only there is no substantial evidence to support the Commission’s finding. We must disagree.

We first observe that the burden was upon the appellant to establish his claim for compensation before the Commission and, on appeal, he must demonstrate the proof before that tribunal is so nearly undisputed that fair-minded men could not arrive at its finding. Eubanks v. Wheeling Pipeline, Inc., 249 Ark. 769, 461 S.W. 2d 937 (1971). Also, the trial court and this court, upon appeal, give the evidence adduced its strongest probative force to support the Commission’s finding which, like that of a jury, will be upheld if there is any substantial evidence to support the Commission’s action. Mayner v. Flyer Garment Co., 249 Ark. 384, 459 S.W. 2d 413 (1970), Bentley v. Henderson, 251 Ark. 203, 471 S.W. 2d 548 (1971).

The appellant, 64 years of age, testified that on or about August 20, 1969, he felt a sharp pain in his neck when he lifted a 90 lb. pipe on his job. He did not report the injury and about a week later he sought medical attention from Dr. Farmer. This doctor made a diagnosis of emphysema and hospitalized appellant. By agreement, appellant introduced into evidence his various medical reports. A report by Dr. Farmer dated December, 1969, and a report and bill dated January, 1970, reflect that the appellant’s alleged accidental injury occurred on November 3, 1969, or about two months after the date relied upon by appellant. In a supplemental report dated March, 1970, Dr. Farmer recited that when he first saw appellant in August that he failed to get a history of the claimed injury although appellant complained of pain and numbness in his right arm with about one month’s duration. He treated him on several occasions for what he “felt to be a neuritis.” Dr. Callaway’s report reflects that he saw appellant on September 30, 1969, or about a month after the alleged injury, and that appellant reported that he “was hit from behind about four months ago and received two ‘licks’ on his neck and shoulder, right.” He complained of pain in his neck and right shoulder and numbness in his right hand. X-rays showed “advanced osteoarthritic changes in the cervical spine.” A history of emphysema was, also, given. He diagnosed appellant’s condition as a cervical disk disease. In December Dr. Calla-way wrote that originally he did not get the history that appellant was “hurt on the job” and he was not being carried “as a compensation case.” In February, 1970, Dr. Callaway wrote that the appellant now states his back symptoms (reported to Dr. Callaway in September) were only four weeks instead of four months’ duration and appellant claims he suffered the alleged industrial accident the latter part of October, 1969.

When Dr. Ruff saw appellant on November 7, 1969, appellant reported a history of injuring his back when he lifted a heavy pipe on the job in late August or the first of September. Dr. Ruff testified that appellant suffered from a typical cervical disk syndrome with pressure on the neck nerves. According to him, the injury could result from a severe strain or overexertion and that appellant’s work through the years contributed to his condition and was a major factor in his present condition.

The evidence is undisputed that appellant was an 11-year employee who knew that accident reports were available and it was expected of all employees to make known an injury to the foreman and a report be filed. He had filled out some of these accident reports previously, including an injury to his finger on September 17, which was about three weeks after the presently alleged injury. He never reported to his employer that he had suffered his present injury until he filed his formal claim on November 14, 1969, which was a few days after first advising his foreman he was unable to work. He says that it was only then he realized the seriousness of his back condition. During the interim, he had missed only seven days work.

Appellant contends that the inconsistencies of the medical reports submitted by him were the fault of his doctors. The burden was upon appellant to demonstrate to the Commission the verity of this assertion and establish his claim’for compensation. It was the Commission’s responsibility, as fact finders, to resolve the conflicts and inconsistencies of the evidence as well as evaluate the credibility of the witnesses. We cannot say that the Commission’s finding is unsupported by any substantial evidence.

Affirmed.


author:
PER CURIAM
      Conley Byrd, Justice,

text:
    AMERICAN PARTY of ARKANSAS v. Phyllis Dillaha BRANDON
    5-6159
    484 S.W. 2d 881
    Opinion delivered September 27, 1972

      Art Givens and Vincent Skillman, for appellant.

      Thomas Glaze, for appellee.
   PER CURIAM

Appellee, a citizen, resident and taxpayer of Pulaski County, Arkansas, and a member of the Pulaski County Board of Election Commissioners, brought an action against Kelly Bryant, Secretary of State, praying that he be commanded to omit the names of any nominees and presidential electors of appellant from his certification of candidates to the respective county boards of election commissioners. Appellee alleged that petitions filed to qualify the party as a “political party” under Ark. Stat. Ann. § 3-101 (a) (Supp. 1971), being Article 1, Section 1 of Act 465 of 1969, as amended by Section 1 of Act 261 of 1971, were not timely filed and that after the Secretary of State had found them insufficient he had granted appellant an unauthorized 30 days’ extension for the filing of additional petitions to meet the statutory requirements of Ark. Stat. Ann. § 3-101 (a).

The Secretary of State filed a special demurrer on the ground that the circuit court lacked jurisdiction of the subject matter, because the jurisdiction for review of the sufficiency of such petitions was vested in the Supreme Court under Amendment 7 to the Arkansas Constitution. Appellant was permitted to intervene in this action, but filed no written pleading until after the judgment was rendered. The circuit judge’s memorandum opinion, the judgment and appellant’s brief all recite that appellant joined in the demurrer to the jurisdiction. The demurrer was overruled and the relief sought by appellant was granted by the circuit court. Appellant filed an answer after the entry of the judgment, but subsequently filed notice of this appeal, and, when appellee’s motion to dismiss the appeal as premature was presented here, stated that the pleadings filed subsequent to the judgment were waived. In stating the case in its brief filed here, appellant recited that the circuit court, before entering its judgment, stated that it must take all allegations of the complaint as confessed, because the intervenor and defendant had elected to stand upon their demurrer and that appellant appeals from the overruling of the demurrer. Of course, such an appeal would be premature if intervenor had not elected to stand upon the demurrer. State ex rel Arkansas Publicity and Parks Commission v. Woodward, 228 Ark. 856, 310 S.W. 2d 803; Radford v. Samstag, 113 Ark. 185, 167 S.W. 491; see also,Arkansas State Board of Architects v. Larsen, 226 Ark. 536, 291 S.W. 2d 269; Allred v. National Old Line Ins. Co., 245 Ark. 893, 435 S.W. 2d 104.

Appellant relies upon and argues only two points for reversal, both of which relate only to the jurisdictional question raised by the demurrer in the trial court. It asserts that exclusive original jurisdiction of all cases testing the sufficiency of state-wide petitions is vested in this court, either by Amendment 7 itself or by Act 465 of 1969 as amended by Act 261 of 1971. No other question is presented by appellant.

We agree with the circuit court. Amendment No. 7 does not purport to vest any original jurisdiction in this court in any proceeding relating to anything except initiated legislation that would have state-wide effect or reference of Acts of the General Assembly to the voters of the state. The application of the amendment is limited to those measures. See Dingle v. City of Eureka Springs, 242 Ark. 382, 413 S.W. 2d 641; Armstrong v. Sturch, 235 Ark. 571, 361 S.W. 2d 77; Townes v. McCollum, 221 Ark. 920, 256 S.W. 2d 716; Scroggins v. Kerr, 217 Ark. 137, 228 S.W. 2d 995.

Appellant then argues that the sentence “The sufficiency of any petition filed under the provisions hereof may be challenged in the same manner as provided for by law for the challenge of Initiative and Referendum petitions,” contained in Article 1, Section 5(c) of Act 465 of 1969, as amended by Section 3 of Act 261 of 1971 [Ark. Stat. Ann. § 3-105(c) (Supp. 1971)] vests exclusive original jurisdiction in this court. That section related to the filing of petitions to place the name of independent candidates on the ballot. Even if we should construe that sentence to apply to any and all petitions filed under the election code [Ark. Stat. Ann. § 3-101 — 3-1306 (Supp. 1971)] rather than to those specifically mentioned in the section of which it is a part, we could not sustain appellant’s position. This court has no original jurisdiction except that expressly conferred by the constitution and that jurisdiction cannot be enlarged by the legislature. Article 7, Section 4, Article 7, Section 11, Constitution of Arkansas; Ex parte Levy, 204 Ark. 657, 163 S.W. 2d 529; Ft. Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S.W. 481; Harding v. State, 94 Ark. 65, 126 S.W. 90; Jones, Ex parte, 2 Ark. 93; see also, Berry v. Hall, 232 Ark. 648, 339 S.W. 2d 433.

Inasmuch as the circuit court had jurisdiction of the action brought by appellee and appellant stood upon its demurrer, we must affirm the judgment.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. During the 1970 election the American Independent Party received only 6.7% of the votes case. The 1971 Legislature provided Ark. Stat. Ann. § 3-101 (a) that a “Political Party shall mean any group of voters which, at the last preceding general election polled for its candidate for Governor or nominees for Presidential Electors at least seven per cent (7%) of the entire vote cast for such office. . .” The same Legislature provided that the petitions had to be filed 30 days prior to the date established for the filing of party pledges and political practice pledges. At that time the time for filing would have been 30 days prior to 3rd Tuesday in June. At a Special Session of the Legislature the date for filing corrupt practice pledges was changed to April 4th so that the time on February 14th was shortened to March 4th for the American Independent Party to qualify if the 7% Act applied. If it be construed as being retroactive to the 1970 General Election then the Act becomes subject to attack under Williams v. Rhodes, 393 U.S. 23 (1968), and Jenness v. Fortson, 403 U.S. 431 (1971). Thus while I agree that the Supreme Court did not have exclusive original jurisdiction and that the Secretary of State could not extend the time for filing petitions, to me the judgment enjoining the names of the American Independent Party’s presidential electors from appearing on the ballot is wrong. Legislative Acts are ordinarily construed as being prospective in which case the “last preceding General Election” would refer to the Last General Election following the adoption of the Act. Furthermore the last preceding General Election can be as logically construed as referring to the last preceding General Election for Presidential Electors as referring to the last preceding election for Governor. Under either construction of the Act in question, the American Independent Party would be a qualified party.

For the reasons stated, I respectfully dissent.

       Our provision for a “write-in” vote, Ark. Stat. Ann. § 3-717 is so restrictive thatitis almost impractical for a voter to properly cast such a vote. That the 1971 Act discriminates in favor of the established parties and against the formation of new parties or dissident groups is demonstrable by the fact that Ark. Stat. Ann. § 3-717 requires an elector wishing to vote for a write-in candidate to write the candidate’s name exactly as it appears on his voter registration while Ark. Stats. § 3-114 (c) permits party nominees to use nicknames or “handles” (prefixes such as Judge, Senator, etc.)


author: Per Curiam

text:
    Phyllis Dillaha BRANDON v. Kelly BRYANT, Secretary of State and Walter L. CARRUTH, Chairman of American Party of Arkansas
    5-6154
    484 S.W. 2d 884
    September 27, 1973
   ORDER OF DISMISSAL

Per Curiam

For the reasons stated in Per Curiam order of this date in No. 5-6159, American Party of Arkansas v. Brandon, this action is dismissed.


author: Carleton Harris, Chief Justice.

text:
    Allen E. MARSHALL et ux v. PRUDENTIAL INSURANCE COMPANY of AMERICA
    5-5991
    484 S.W. 2d 892
    Opinion delivered October 2, 1972

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

      Rose, Barron, Nash, Williamson, Carroll if Clay, for appellee.
   Carleton Harris, Chief Justice.

This appeal relates to claim for hospital and medical benefits under the terms of a policy issued to appellants, Allen E. Marshall and his wife Loretta Marshall, by appellee, Prudential Insurance Company. Application was made on March 26, 1969, and the policy was issued to Mr. Marshall and also provided coverage for Mrs. Marshall. From November 6, 1969, through November 22, 1969, Mrs. Marshall was hospitalized and subsequently, claim was made to appellee for benefits in the amount of $795.50. The company delined to pay on the basis that material information as to Mrs. Marshall’s health had been withheld at the time of making the application, and the Marshalls thereafter instituted suit seeking payment. The company tendered into the registry of the court the sum of $214.71 representing all premiums paid by appellants, and following trial, the. Pulaski County Chancery Court entered its decree in favor of appellee holding that the company was entitled to a rescission of the insurance policy. From such decree, appellants bring this appeal. For reversal, it is simply urged that the finding of the chancellor is against the preponderance of the evidence.

The record reflects that Charles B. Hume, a soliciting agent for Prudential, approached Allen Marshall in regard to the purchase of life insurance. Marshall replied that he was not interested in life insurance but might be interested in hospitalization insurance and an appointment was accordingly set up at the Marshall home. At the home, Hume took the application, asking questions of appellants, and filling out the answers himself. Admittedly, the application form as to Mrs. Marshall was not an accurate reflection of her medical record. However, appellants testified that they gave accurate information in replying to the questions, but apparently Hume did not place such information in the application. To the contrary, Hume testified that he placed all information given in the application. Basically, as to this phase of the litigation, the question boils down to which witnesses the chancellor believed.

While the record reflects that facts relating to female disorders suffered by Mrs. Marshall were not included in the application, further discussion of these ailments is not required since the hospitalization was occasioned by phlebitis. Mrs. Marshall testified that prior to the insurance application on March 26, she had gone to Dr. Chudy and Dr. Schratz of the Chudy-Schratz Clinic and that these visits were made because of cramping in her legs, a condition which she had had from two weeks to a month prior to consulting a doctor, and which she supposed was caused by standing on her feet while working at her father’s restaurant. Her first visit to Dr. Chudy for this condition occurred on March 18, at which time the doctor prescribed Vasodilan for circulation. She said that she asked if her trouble could be varicose veins and that Dr. Chudy replied “Well, we don’t know. It could be.” Dr. Chudy testified that he did not tell Mrs. Marshall that she possibly had phlebitis, but that he might have told her that it was vascular trouble; he said he did not identify her condition as phlebitis until her discharge from the hospital in November 1969.

On March 25 she returned to the office and saw Dr. Schratz, at which time her right leg was worse. Dr. Schratz testified that he examined Mrs. Marshall on March 25, primarily in regard to the right leg and found that “she was tender in the popliteal area which is the back of the knee, so-to-speak, and suggested she continue the medication Doctor Chudy had placed her on, and suggested bed rest and heat to this area and asked her to return for a follow-up examination of this area”. He said at that time he thought he “suspected probably a phlebitis”, and that Dr. Chudy’s notes reflected that the latter had made a tentative diagnosis of subsiding phlebitis on March 18. Chudy testified that he was sure that he did not tell Mrs. Marshall that she was suffering from phlebitis, and Dr. Schratz stated that he did not remember whether phlebitis was mentioned as a possibility. Mrs Marshall testified that she had never even heard of phlebitis at that time; according to her testimony, Dr. Schratz told her on March 25 to start wearing support hose. As previously stated, there is no dispute but that these trips with regard to the pain in her legs were made to Chudy and Schratz respectively on March 18 and March 25, though nothing concerning these visits appears in the application; in fact, the names of Chudy and Schratz do not appear in the application as it relates to. Mrs. Marshall.

William H. Hawksworth, an underwriter with Prudential, testified that he had heard the testimony of Mrs. Marshall regarding her treatment by doctors Chudy and Schratz and if this information had been known to Prudential, the policy would not have been issued. He said that Mrs. Marshall was under the care of a physician and was taking medication and it is not the practice of the company to insure anyone who is currently receiving medical care. The witness stated that the company was governed somewhat by the “Health Insurance Medical Underwriting Manual” and that, had the facts been known, the physician would have been contacted and, if she was still under treatment, action on the application would have been postponed until such time as she recovered. He further stated that if there had been any suggestion in the application that Mrs. Marshall had been attended by a physician within the last two years, a statement from tbe physician would have been sought. Of course, it can readily be understood why a company would seek additional information if a prospective policyholder was receiving medical aid at the time of the application, and particularly so when the applicant had visited a doctor for aid just one day before submitting the application. Of course, appellants, if Mrs. Marshall was told nothing about phlebitis, could not have mentioned that ailment in the application, but, the difficulties with her legs, and the visits to the doctors should have been mentioned (appellants contending they were mentioned).

The facts in this case have some similarity to those in the case of Dopson v. Metropolitan Life Insurance Company, 244 Ark. 659, 426 S.W. 2d 410. In that case, there was also a dispute between the testimony of Dopson and his wife on the one side, and the insurance agent, Mullins, on the other, relative to whether it had been revealed that Mrs. Dopson had previously suffered from back trouble. The Dopsons testified that this information was given while Mullins testified that it was not, though it was uncontradicted that she had had previous problems with her back. We commented that the chancellor found the issues in favor of the company “and we can not say that his finding is contrary to a preponderance of the evidence”. Here too, we are unable to make such a finding. The chancellor observed the Marshalls and Hume as they testified, and he was in a much more favorable position than this court to evaluate the testimony. At any rate, we certainly cannot say that his finding was contrary to the preponderance of the evidence. The proof here reflects that the company would not have issued the policy had it been familiar with the actual facts as shown by the testimony, and we think the statement of the company official is consistent with the evidence in this case. That being true, appellants cannot prevail. See Ark. Stat. Ann. § 66-3208 (1) (c) (Repl. 1966); Life & Casualty Co. v. Smith, 245 Ark. 934, 436 S.W. 2d 97.

Affirmed.

       The suit was instituted in the Pulaski County Circuit Court but was transferred to equity after appellee asked for rescission of the policy.

       According to Volume 2, Schmidt’s Attorneys’ Dictionary of Medicine, phlebitis is defined as "Inflammation of a vein. The condition occurs more often in persons with a sluggish circulation, especially after an operation or following childbirth. Occasionally clots form in an inflamed vein, a condition known as thrombo-phlebitis. ’ ’


author: George Rose Smith, Justice.

text:
    Myrtle C. PIERSON v. Thelma Pierson BARKLEY et al
    5-5996
    484 S.W. 2d 872
    Opinion delivered October 2, 1972

      Douglas Bradley, for appellant.

      Frierson, Walker, Snellgrove & Laser, for appellees.
   George Rose Smith, Justice.

Clyde C. Pierson, age 75, died on April 19, 1970, survived by his widow, the appellant, and by three sons and a daughter, the adult children of an earlier marriage. Mrs. Pierson, the widow, brought this suit to set aside (as a fraud upon her marital property rights) a transaction by which Pierson denuded himself of practically all his personal property a few months before his death, at a time when a divorce suit brought by Mrs. Pierson was pending. The appellees, individually andas executors of Pierson’s will, are the son and daughter to whom he transferred the property. The trial court, at the close of the plaintiff’s proof, sustained a demurrer to the evidence. Under the rule announced in Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225 (1950), and reaffirmed in dozens of later cases, the court’s action was correct only if the plaintiff’s evidence, viewed in its most favorable light, failed to make a prima facie case.

The record convinces us beyond a doubt that the demurrer to the evidence should have been overruled. The Piersons were married on October 4, 1968, and separated on July 28, 1969. Three days later Mrs. Pierson filed suit for a divorce, with a prayer for alimony and a property settlement. On October 15, 1969, with the suit pending, Pier-son transferred to his daughter and to one of his sons, jointly, a $10,000 savings account and a $700 checking account. The transaction left Pierson with a homestead inventoried at a value of $7,500, a car worth $275, household goods and personal effects valued at $788, and certain lifetime Social Security benefits. The divorce case was still pending at Pierson’s death in April, 1970.

The proof shows that the appellees — the recipients of the gift — have not in any respect treated the property as being exclusively their own. Quite the contrary. During the interval between the transfer of the property and their father’s death they made no withdrawals from either account. Only four days after their father’s death they voluntarily changed the $10,000 savings and loan account to a joint ownership among the four surviving children— an action which in substance gave effect to their father’s will. The $700 bank account was used to pay debts of the estate.

The chancellor, in sustaining the demurrer to the evidence, seemingly took the view that since Pierson himself could not have revoked the gift to his two children, his widow stands in no better position. That reasoning is not sound. It is true that equity will not allow a fraudulent grantor to set aside his own conveyance. McClure v. McClure, 220 Ark. 312, 247 S.W. 2d 466 (1952). But that principle does not apply to the grantor’s defrauded creditors, else no fraudulent conveyance could ever be avoided.

The case at bar, at its present stage, is governed by our cases holding that a husband’s transfer of property to defeat his wife’s rights in a pending divorce suit is voidable. Hardy v. Hardy, 228 Ark. 991, 311 S.W. 2d 761 (1958); Dowell v. Dowell, 207 Ark. 578, 182 S.W. 2d 344 (1944). No showing of insolvency on the part of the husband is essential, for the wife is entitled to recover her marital interest in the specific property. Nor can we sustain the appellees’ contention that it was necessary, under our holding in Wright v. Aaron, 214 Ark. 254, 215 S.W. 2d 725 (1948), for the plaintiff to show that the appellees participated in their father’s asserted fraud. That case involved a purchaser, whose good faith was in question, whereas these appellees are mere donees.

Reversed, the demurrer to the evidence to be overruled.


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    Joe WARREN et ux v. Debbie WARREN
    5-6013
    484 S.W. 2d 880
    Opinion delivered October 2, 1972

      Dede W. Finley, for appellants.

      John Harris, for appellee.
   George Rose Smith, Justice.

The appellants bought a $3,500 automobile for their young son Stanley and put the title in his name, retaining possession of the certificate of title. A few months later Stanley, then 23, married the appellee, then 16, with her mother’s consent. During the brief marriage, which ended within a few days without consummation, Stanley took the certificate of title from his mother’s papers and gave the car to his bride, with the title being reissued in her name. The appellants do not question their son’s intention to give the automobile to his wife.

After the appellee filed an action for divorce the appellants brought this suit to recover the car. Stanley’s mother testified that the title to the vehicle was put in the son’s name “for insurance purposes,” to protect the elder Warren from being responsible. Mrs. Warren stated that her son was allowed to treat the car as his own, but he was not to have any authority to dispose of it. Mr. Warren did not testify.

The chancellor refused to disturb the appellee’s ownership, holding that as between the two couples the car belonged to Stanley at the time he gave it to his wife. We do not find the chancellor’s decision to be against the weight of the evidence. The appellants came into a court of equity in the manifestly inconsistent position of having sought on the one hand to retain the real ownership of the automobile while endeavoring on the other to be ready to defraud innocent members of the public by making it appear that their financially irresponsible son was in fact the owner. There is no sound reason for a court of conscience to rescue the appellants from a predicament of their own making. See McClure v. McClure, 220 Ark. 312, 247 S.W. 2d 466 (1952).

Affirmed.


text:
    Mary E. MYERS, Administratrix v. MUTUAL of OMAHA INSURANCE CO.
    5-6014
    484 S.W. 2d 879
    Opinion delivered October 2, 1972

      Terral, Rawlings, Matthews ér Purtle, by: Harlan A. Weber, for appellant.

      Smith., Williams, Friday, Eldredge & Clark, by: Max C. Mehlburger, for appellee.
   Lyle Brown, Justice.

This suit was instituted to recover sick benefits under an insurance policy executed by appellee to Cecil L. Myers. The insured having died prior to trial, his widow, as administratrix, was substituted as plaintiff. The court sitting as a jury absolved appellee, stating that the notice of sickness was not timely made, and that there was no substantial evidence of insured’s mental or physical condition as would excuse him from timely filing proof of loss.

Cecil L. Myers purchased the policy in 1927. In 1963 he was suffering from emphysema and diverticulitis and was incapacitated from working. Mrs. Myers discovered the policy late in 1969 and within a few months filed claim. Payments for the years preceding the notice were denied. Suit was brought to recover monthly benefits for the five years next preceding the filing of suit.

The policy provides that notice of sickness shall be given the insurer within ten days after the commencement of disability therefrom. Affirmative proof of loss is required to be furnished within ninety days after the loss. The final pertinent provision requires strict compliance with the stated conditions as a condition precedent to recovery. The identical requirements were present in the policy considered in Business Men’s Assur. Co. v. Selvidge, 187 Ark. 1040, 63 S.W. 2d 640 (1933). We construed the stipulations as being “reasonable and valid.”

Appellant argues for exception to the notice requirements and cites a line of cases which hold that incompetency waives the notice requirements. We have so held in a number of cases involving insanity. For example, Pfeiffer v. Missouri State Life Insurance Co., 174 Ark. 783, 297 S.W. 847 (1927). The trial court in the case before us found as a fact that “there was no substantial evidence of insured’s mental or physical condition that would excuse him from filing a proof of loss.” Mr. Myers’ doctor was asked if the ailments affected Myers’ mind, to which he replied “not his mind necessarily.” On this point we are severely handicapped by appellant’s failure to abstract Mr. Myers’ testimony. His deposition, taken several months prior to trial, was introduced in evidence.

Affirmed.


text:
    Ed WHITE, Jr., v. Clyde McREYNOLDS, Verlia McREYNOLDS, Edwin BRAUKER
    5-6000
    484 S.W. 2d 871
    Opinion delivered October 2, 1972

      Kirsch, Cathey, Brown ir Goodwin, for appellant.

      Branch, Adair ir Thompson, for appellees.
   John A. Fogleman, Justice.

In appellant’s suit to enjoin appellees from maintaining a wall which obstructed the flow of water from the premises on which White’s dwelling house was located onto their adjoining property on the east, the chancellor made the following findings:

1. The wall erected by appellee Brauker did not, in any way, obstruct the flow of water from the White property;
2. the banks of a ditch on White’s property, which he asserted was a natural drain, were altered by him by digging so that they would be perpendicular and protected from erosion by concrete slabs, as a result of which the carrying capacity of the ditch was nearly doubled;
3. appellant failed to show by a preponderance of the evidence that the ditch was a natural drain;
4. all the water running from White’s property onto the McReynolds property was surface water;
5. the McReynolds were within their legal rights in building a wall to ward off the surface water.

Appellant states that the sole question at issue is whether, prior to the erection of the wall across the mouth of the ditch, there had been a natural watercourse draining from his property to the McReynolds property. He asserts that if a natural drain or watercourse existed, he was entitled to the relief he sought. The sole point for reversal is that the trial court’s finding that the ditch was not a natural watercourse was against the preponderance of the evidence. There is no real disagreement about the law applicable to the case. After a careful review of the evidence abstracted, we are unable to say that the chancellor’s findings are clearly against the preponderance of the evidence. We did not have the opportunity to see and hear the witnesses as they testified, as did the chancellor, who also had the advantage of seeing the numerous exhibits consisting of plats, photographs and motion pictures as they were introduced and as the witnesses referred to and explained them during the course of the testimony. Only one of these was reproduced in the briefs and it was a photograph attached to the reply brief. An examination of this photograph seems to give as much support to the theory that the ditch was man-made for the collection of surface water as it does to appellant’s theory that it was a natural drain or watercourse.

Appellant not only had the burden of sustaining his theory in the trial court by a preponderance of the evidence but also of demonstrating that the fact findings of the chancellor were clearly against the preponderance of the evidence. City of Little Rock v. Sunray DX, 244 Ark. 528, 425 S.W. 2d 722. Since wé are unable to say that appellant has met his burden here, we must affirm the decree of the chancery court.


author: J. Fred Jones, Justice.

text:
    Jerome HEIL v. Leslie Earl ROE, Administrator of the Estate of Jeffrey ROE, deceased
    5-5992
    484 S.W. 2d 889
    Opinion delivered October 2, 1972

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

      McMath, Leatherman <h Woods, for appellee.
   J. Fred Jones, Justice.

This appeal arises from a wrongful death action brought in the Pulaski County Circuit Court by Leslie Earl Roe as administrator of the estate of his minor son, Jeffrey. The question presented is whether the trial judge abused his discretion in setting aside a jury verdict and granting a new trial. We are of the opinion that he did not.

About 4:30 p.m. on September 19, 1969, Jeffrey Roe, the eight year old son of Leslie Earl Roe, was walking his bicycle east across Reservoir Road in Pulaski County when the appellant, Jerome Heil, while driving his automobile north on Reservoir Road, came over a hill and skidded 115 feet striking and fatally injuring Jeffrey. The complaint filed by Mr. Roe alleged mental anguish and loss of services to the mother’s and father’s damage in the amount of $100,000 and mental anguish to one brother and two sisters in the amount of $25,000 each. The complaint also alleged damages to the estate of Jeffrey Roe for medical and funeral expenses in the amount of $2,500 and judgment was prayed in these amounts. The answer of Mr. Heil denied any negligence on his part but alleged that the proximate cause of the injury and death of young Roe was the negligence of young Roe and the negligence of Mr. and Mrs. Roe in permitting their youngster to play upon public streets and to ride a bicycle thereon without proper supervision.

A jury trial resulted in a verdict for the plaintiff but with damages assessed at zero on each element of alleged damages except on behalf of the estate of Jeffrey Roe. The only elements of damage alleged or proven on behalf of the estate were medical and funeral expense. The total of these liquidated items amounted to $2,802 and as already stated, the complaint only alleged and prayed damages on these items in the amount of $2,500. On this item the jury verdict recited as follows: “For and on behalf of the estate of Jeffrey Roe $5,000.00.”

We find it unnecessary to set out the instructions given to the jury or to set out and evaluate the arguments of the parties as to the propriety and necessary effect of the verdict under the instructions as given, for in granting the new trial the trial court set out his reasons for doing so as follows:

“(1) The court erroneously refused plaintiff’s instruction No. 12, which would have correctly submitted the parents’ claim on the same basis as that of the estate. In other words, upon reflection the court holds that the right of the parents to recover was dependent upon the negligence of decedent, Jeffrey Roe, since there was no evidence of independent negligence on the part of the parents.
“(2) After refusing plaintiff’s instruction No. 12, the court gave instructions No. 12A and 12B which submitted the issue of the parents’ negligence to the jury. Upon reflection the court holds that there was no evidence of negligence on the part of the parents and this issue should not have been submitted. Instruction No. 12A and 12B should not have been given.
“(5) Even assuming that the parents were guilty of negligence under the testimony of this case, the jury by its verdict found that the decedent, Jeffrey Roe, was not negligent, since it awarded full damages to his estate. Any negligence of the parents could not therefore have been the proximate cause of Jeffrey Roe’s death.
“(4) The court further holds that, even if the jury was correctly instructed on the issue of the parents’ negligence, the finding by the jury that the parents were negligent in any equal or greater degree than the defendant or that the parents did not suffer damage in the death of their son was against a preponderance of the evidence.
"(5) The finding of the jury that the brother and sisters of Jeffrey Roe did not sustain damage in his death is against the preponderance of the evidence.”

Returning now to the primary question before us, we have held that a trial judge who explained in detail that, by refusing an instruction, he had, in his opinion, failed to present the issues, exercised his inherent power to grant a new trial in his sound discretion, and not arbitrarily. Hardin v. Pennington, 240 Ark. 1000, 403 S. W. 2d 71. See also Millers Cas. Ins. Co. of Texas v. Holbert, delivered on September 18, 1972, 253 Ark. 69, 484 S.W. 2d 528.

In Blackwood v. Eads, 98 Ark. 304, 135 S. W. 922, we pointed out that this court will much more reluctantly reverse the final judgment in a cause for error in granting than for error in refusing a new trial. Such reluctance is based on sound and practical reasoning. In the first place any competent judge is simply not as likely to find and admit error where none exists as he is to overlook or fail to recognize or accept error where it does exist. In the second place, final justice may be totally denied by the wrongful refusal of a new trial whereas final justice should be only postponed by the wrongful granting of a new trial. See Worth James Constr. Co. v. Herring, 242 Ark. 156, 412 S. W. 2d 838.

The granting of a new trial addresses itself to the sound discretion of the trial court, and this court will not reverse a trial judge’s granting of a new trial unless it appears that he has abused his discretion. Dorey v. McCoy, 246 Ark. 1244, 442 S. W. 2d 202. We find no such abuse of discretion in this case.

On cross-appeal the plaintiff-appellee urges that the new trial should be limited to the issue of damages. He argues that since neither side challenged the jury verdict for the estate and since such finding under correct instructions necessarily showed that the decedent, Jeffrey Roe, was not negligent, and that the defendant Jerome Heil was negligent, the verdict automatically established liability in favor of the parents. He argues that since the trial court properly held that there was no negligence upon the part of the parents, they should now only have to prove damages. We.are not impressed by this argument. The jury returned a “form verdict” with zero dollars inserted for all parties plaintiff with the exception of the estate of Jeffrey Roe, and the verdict on this item appears as follows:

“For and on behalf of the estate of Jeffrey Roe $5,000.00.”

As already stated, it was not the jury who found that the damage to the estate was $2,802, the parties simply agreed that that was the total amount of damage sustained by the estate and was the total amount recoverable in any event. As we view the instructions and evidence of record, it is impossible for us to determine what the jury intended when it awarded $5,000 for and on behalf of the estate of Jeffrey Roe. Certainly we are not inclined to second guess the trial court on this point, so we conclude that the trial court did not abuse its discretion in setting aside the entire verdict in this case and granting a new trial as to all issues. The judgment of the trial court is affirmed.

Affirmed.


text:
    Katherine CHENAULT v. STATE of Arkansas
    5749
    484 S.W. 2d 887
    Opinion delivered October 2, 1972

      W. J. Walker and Harold L. Hall, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

The appellant, Katherine Chenault, was tried and convicted of the first degree murder of her ex-husband for which the jury fixed her punishment at life imprisonment. For reversal of the conviction appellant argues that the trial court erred in allowing statements made by the appellant at the scene of the crime to be introduced into evidence thus violating her constitutional rights as established under the Miranda decision; and further that the trial court erred in permitting the State to introduce evidence as to the good character of the deceased.

Katherine Chenault, the appellant married William C. Chenault, the deceased, in 1968, and was divorced on June 24, 1971. This marriage was the appellant’s eighth marriage and the deceased’s second. On August 18, 1971, at 4:42 p.m., the Little Rock Police Department received a call to 2005 South Harrison, Little Rock, Arkansas. Patrolman Bobby Reynolds and Sergeant Leslie Gachot arrived at approximately 4:45 p.m. Sergeant Gachot testified that:

“When I got there a uniform officer had been dispatched and he was there at the house. Went inside the door and found the defendant standing by the wall of the kitchen, the body laying in Southwest corner of the front room. The defendant had a gun and I asked her to give me the gun and she told me that she shot him and I said, ‘who is he?’ She said, ‘my husband,’ and I went over to the body to see if he was still living or dead, and the man that, I couldn’t feel any pulse on him. I went back to her and asked her what happened and she said, ‘I shot him. I killed him.’ I said, ‘Don’t say any more to me. Anything you tell me now will be used in Court against you,’ and she said, ‘Well, I know I killed him.’ ”

The testimony was corroborated by the uniformed officer Bobby Reynolds. Another officer, Larry Dill arrested the appellant and took her to police headquarters where the appellant was advised of her Miranda rights and she gave a statement. The appellant objected to the above testimony by the officers after the trial court had held a Denno hearing and ruled it admissible as being a spontaneous utterance.

On this point we agree with the trial court. The cases are legion on this point. The appellant has argued that the officers failed to warn the appellant of her constitutional right to remain silent as provided by the standard established in Miranda. In the present case the patrolman received a call at 4:42 p.m. and arrived at approximately 4:45 p.m. along with Sergeant Gachot, some three minutes later. The appellant made the statements immediately upon the arrival of the officers. A case directly in point recently before this court is Stout v. State, 244 Ark. 676, 426 S.W. 2d 800 (1968). In that case similiar statements of the accused were made at the scene of the murder to investigating officers and were admitted as being spontaneous utterances.

Further evidence of the spontaneousness of the utterances is readily demonstrated by the fact that while the police officers were investigating, the appellant answered her own phone and advised the party at the other end of the line that she had just killed her husband.

The appellant further contends that the trial court erred in permitting testimony to be introduced by the state as to the good character of the deceased.

In the opening statement to the jury the appellant’s counsel, after telling the jury that appellant was pleading self-defense, made the following remarks in part:

. .She is going to testify briefly as to the mistreatment, physical abuse that she received during the marriage. That she required medical attention due to this abuse. . . . The evidence of Mrs. Chenaults, of the treatment that Mrs. Chenault received at the hand of Mr. Chenault during the marriage will be sustained by witnesses, or friends of hers, or relatives that saw them together during the marriage. . . . However, I think that you will find from the evidence, that we are dealing with a split personality in Mr. Chenault. A Dr. Jekyl and Mr. Hyde type. Get drunk on Saturday night and sleep with a woman he is not married to that night and preach on Sunday morning. And that he had a very explosive temper.”

The prosecution in chief called as its witness Mrs. Ernestine Mann Chenault, the deceased’s first wife, who testified that her ex-husband had a Bachelor of Divinity Degree from Southern Methodist University; they had been married nineteen years; he had been a minister since 1954; he had never struck her; he had not had a drink in her presence and that she and the deceased planned on remarrying.

The appellant Katherine Chenault, on direct examination after the prosecution rested, testified, she and the deceased had traveled and stayed together as man and wife before their marriage; she had spent 11 days in the hospital in 1970, because the deceased had kicked her in the stomach; she spent 13 days in the hospital in 1971, for head injuries as a result of a visit by the deceased; the deceased had threatened to split her head with an ax, and after the divorce she had spent the night with the deceased drinking before he was to preach in Perryville the next morning.

The appellant relies on Bloomer v. State, 75 Ark. 297, 87 S.W. 438 (1905), for reversal, and this court has long recognized the rule that the State may not introduce the good character of the deceased before the defendant has placed it in issue. However, the defense following the outline of its opening statement furnished her evidence as to the bad character of the deceased. In Mode v. State, 234 Ark. 46, 350 S.W. 2d 675 (1961), the appellant, pleaded self-defence in a murder trial, and contended on appeal that the trail court committed fatal error in allowing the state to introduce evidence of the deceased’s good character in rebuttal to defense testimony. This defense testimony related to threats, shooting, carrying a gun, fighting and other specific acts of misconduct of the deceased. This court stated:

“We hold that when the defense offered all of the foregoing evidence, the defense thereby opened the door for the State to show on rebuttal the general reputation of the deceased. . .as a peaceable and law-abiding citizen. Such evidence certainly tended to rebut the defendant’s evidence as to acts of bad conduct, turbulence and violence on the part of the deceased. Even though general reputation cannot be shown by acts of specific misconduct, yet when, under the claim of self-defense, there is offered — as here — such an aboundance of testimony of specific acts of bad conduct as to present a picture of the deceased being a violent and turbulent man, then the defense has, in effect, atacked the good reputation of the deceased and has opened the door for the State to show on rebuttal the general reputation of the deceased as a peaceable and law-abiding citizen.”

Although, in the present case it was erroneous to permit the introduction of character testimony at the time it was introduced, the defense in pursuing her evidence as outlined in her opening statement to the jury, made the error harmless.

This court in Midland Valley Rd. Co. v. Skinner, 99 Ark. 370, 138 S.W. 969 (1911), a case involving a question of negligence concerning the death of a horse found near the defendant’s railroad, permitted testimony to be introduced without laying the proper foundation where the foundation was laid in later testimony. We sustained the verdict, this being harmless error. See also Debin v. Texas Company, 190 Ark. 849, 81 S.W. 2d 935 (1935).

Affirmed.