text:
    Joe MOORE v. STATE of Arkansas
    686 S.W.2d 790
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985
    [Supplemental Opinion on Denial of Reconsideration April 29, 1985.]
    Pro Se Motion for Belated Appeal; denied.
    Appellant, pro se.

    No response.
   Per Curiam.

In an order signed August 31, 1984, the Circuit Court of Crawford County denied petitioner Joe Moore’s petition for postconviction relief. On September 4, 1984, the day the order was filed by the circuit court, the court received a letter from petitioner which the court treated as a motion to set aside the order. The court responded with a second order entered September 11, 1984, declining to disturb the first order.

Petitioner now asks for permission to proceed with a belated appeal of the orders on the ground that he did not know that his Rule 37 petition had been denied until he was informed of the denial in a letter from the trial judge dated November 28, 1984. He alleges further that the circuit clerk did not forward a copy of the orders to him until January 14, 1985.

688 S.W.2d 733

Rule 37.3(d) provides that when an order is rendered, a copy will be mailed promptly to the petitioner. See Scott v. State, 281 Ark. 436, 664 S.W.2d 475 (1984). The record in this case indicates that the circuit court complied with this provision. Letters to the petitioner dated September 4 and September 11,1984, inform petitioner that a copy of an order is enclosed, and both orders have a notation under the trial judge’s signature directing that a copy be delivered to the petitioner. There is a presumption that a letter mailed was received by the person to whom it was addressed. American Fidelity Fire Insurance Company v. Winfield, 225 Ark. 139, 279 S.W.2d 836 (1955). Petitioner has offered nothing to rebut that presumption beyond the unsubstantiated assertion that the letters did not arrive.

In view of the proof contained in the record that petitioner was provided a copy of both the September 4 and September 11 order, we find that petitioner has not stated good cause for failing to perfect an appeal. Accordingly, his motion for belated appeal is denied.

Motion denied.

Supplemental Opinion on Denial of Reconsideration delivered April 29, 1985

Pro Se Motion for Reconsideration of Denial of Motion for Belated Appeal; denied.

Appellant, pro se.

Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.

Per Curiam. On March 25,1985, we denied petitioner’s motion for belated appeal. In the motion he had alleged that he was unable to file a timely notice of appeal because he had not received notice from the circuit court that his Rule 37 petition had been denied until several months had passed. He now asks for reconsideration based on the ground that since a prisoner’s mail is not delivered directly to him but rather to the prison officials, the prisoner has no knowledge of it until it is passed along to him. He suggests that because he has been transferred four times since being committed to prison, it is possible that his mail was not delivered to him. His statement is unconvincing.

As we said when the motion for belated appeal was denied, Rule 37.3(d) provides that when an order is rendered, a copy will be mailed promptly to the petitioner. The record in this case indicates that the circuit court complied with the rule. We also said that there is a presumption that a letter mailed was received by the person to whom it was addressed. The fact that mail is delivered to the prison mailroom and not directly into the hands of the inmate is not in itself enough to overcome the presumption that it reached him. If petitioner had provided some proof that it is the practice of prison officials to withhold mail or to delay delivering it for an extended period when there has been a transfer, there might be grounds for reconsideration of the denial of his motion for belated appeal. (We note that he states that our opinion denying his motion for belated appeal was postmarked March 25, 1985 and delivered March 27,1985.) There can be no argument with petitioner’s assertion that mail between the courts and litigants deserves prompt delivery, but petitioner has not demonstrated that there was any undue delay in his case.

Motion for reconsideration denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Patricia Ann SIDES v. STATE of Arkansas
    CR 85-6
    686 S.W.2d 434
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985
    John W. Settle, by: /. Randolph Shock, for appellant.

      Steve Clark, Att’y Gen., by: Marci L. Talbot, Asst. Att’y Gen., for appellee.
   Per Curiam.

Patricia Sides was convicted in the Ft. Smith Municipal Court of violating the Omnibus DWI Act, Act 549 of 1983. On appeal to the Circuit Court she was tried before a jury and again convicted. She was fined $800 and costs and her license was suspended for ninety days.

On appeal it is argued that Act 549 violates the separation of powers clause in Article 4, Section 1 of the Arkansas Constitution in that 1) the discretion given to prosecuting attorneys to bring criminal charges is transferred to police officers under the Act, and 2) the judicial function of judges or juries as fact finders is usurped by the provision of the Act which presumes guilt if the defendant’s blood alcohol level equals or exceeds .10% by weight.

Those same arguments have been considered and rejected in other cases. See Sparrow v. State, 284 Ark. 396,683 S.W.2d 218 (1985) and Lovell v. State, 283 Ark. 425, 678 S.W.2d 3-18 (1984).

Affirmed.


text:
    Leamon STYLES v. STATE of Arkansas
    685 S.W.2d 813
    Supreme Court of Arkansas
    Opinion delivered March 25, 1985

      Reuben “Jay” Pickens and Wilson, Engstrom & Corum, by: William R. Wilson, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant, Leamon Styles, by his attorney, William R. Wilson, Jr., has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and it was no fault of the appellant. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Thomas A. & Gerene L. DILDINE v. CLARK EQUIPMENT CO., A Foreign Corp., TOWN & COUNTRY INTERNAT’L, INC. and U.S. FIDELITY & GUARANTY CO.
    84-283
    686 S.W.2d 791
    Supreme Court of Arkansas
    Opinion delivered April 1, 1985

      Larry J. Steele, for appellant.

      Barrett, Wheatley, Smith ir Deacon, for appellee.
   Jack Holt, Jr., Chief Justice.

This case presents questions concerning the use of expert testimony and photographic evidence in a products liability matter. Our jurisdiction is under Sup. Ct. R. 29(l)(m).

The appellant, Thomas Dildine, was injured while operating a front-end loader for his employer, Tenco, Inc., a feed and grain company. He and his wife filed suit for his injuries against the appellee, Clark Equipment Co., the manufacturer of the machinery, and against appellee, Town & Country International, Inc., the distributor. United States Fidelity & Guaranty Co., intervened for subrogation rights for worker’s compensation benefits paid to the appellant.

The case was tried to a judge who granted both appellees’ motions for directed verdicts. That decision was appealed to this court which affirmed as to Town & Country but reversed and remanded as to Clark. Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692 (1984).

On remand, the case was tried to a j ury which returned a verdict finding neither the appellant, Dildine, nor the appellee, Clark, guilty of negligence and that the product was not sold in a defective condition. It is from the jury’s verdict that this appeal is brought.

The accident occurred in March, 1982, when Dildine was thrown from a front-end loader called a 632 Bobcat. According to Dildine, he had a load of feed in the bucket of the Bobcat and was driving toward the mixer with the bucket in a lowered position. As he approached the mixer, he began elevating the bucket and the Bobcat tipped forward, throwing him from the machine and causing him certain physical injuries. The evidence showed that his employer, Tenco, had modified the Bobcat by welding a metal piece to the bucket to permit a larger load and adding compensating weight to the rear of the machine. Conflicting testimony was presented as to the effects of this modification.

Dildine’s initial allegation of error concerns the testimony of Dennis Combs, the appellee’s witness. Dildine contends that the trial court erred in allowing Combs to testify as an expert witness in that Combs was not properly qualified. The following colloquy with Combs occurred in connection with this question:

Q. Now, did you have occasion to see this particular 632 Bobcat after it had had an extension welded on the bucket?
A. Yes, I have seen it.
Q. Was that at your suggestion?
A. No.
Q. Would you recommend that such a thing be done?
A. I would not recommend it, no, sir.
Q. Tell the jury just what we had there.
BY MR. STEELE: Your Honor, I’m going to object at this time. I don’t think the proper foundation has been laid for Mr. Combs to testify as any kind of an expert witness.
BY MR. SMITH: All right. Let's put it this way. Did you see it in your shop when it had this extension? [emphasis added].

This exchange demonstrates that, although Dildine obj ected to Combs’ testimony, he never obtained a ruling from the j udge on the obj ection. The burden of obtaining a ruling is upon the movant, and the failure to secure one constitutes a waiver, precluding its consideration on appeal. Collier v. Hot Springs S & L Ass’n, 272 Ark. 162, 612 S.W.2d 730 (1981). Furthermore, in response to the objection, the mode of questioning was altered by the appellee’s attorney. Dildine therefore has not demonstrated where the trial court erred. “It is the responsibility of the appellant to demonstrate error.” Bostic v. Bostic Estate, 281 Ark. 167, 662 S.W.2d 815 (1984).

In reaching the substance of Dildine’s allegation, however, we find that under the circumstances, Combs was qualified to testify either as an expert or a lay witness. Whether a witness may give expert testimony rests within the sound discretion of the trial court and will not be reversed by this court absent an abuse of discretion. Dildine, supra.

In the first appeal of this case, this court stated, “[o]bviously this case required expert testimony. There is no suggestion that the dynamics of this accident were explainable in lay terms.” Uniform R. Evid. 702 provides that a witness qualified “by knowledge, skill, experience, training, or education” may testify in the form of opinion or otherwise. Combs was qualified under this rule in that he has worked for Town & Country for six years; has been service manager for the equipment, including Bobcats, for three years; performed the pre-delivery inspection on this Bobcat; shows rental customers how to operate a Bobcat; has driven, maintained and serviced this Bobcat; and has operated all Bobcat models. He has the knowledge, skill, experience arid training and was qualified to testify under Rule 702.

His testimony was also admissible as that of a lay witness. Uniform R. Evid. 701 provides that testimony by a lay witness in the form of opinions or inferences is permitted which is rationally based on the witness’ perception and “[h]elpful to a clear understanding of his testimony or the determination of a fact in issue.” Combs’ testimony meets this test and was admissible.

Dildine’s second objection to Combs’ testimony goes to its relevance. Decisions about relevancy are within the discretion of the trial court, and he is not reversed unless that discretion is abused. Daniels v. State, 277 Ark. 23, 638 S.W.2d 676 (1982).

The appellant maintains that Combs was allowed to testify to irrelevant, prejudicial testimony while his expert witness, Dr. Albert Mink, was prohibited from testifying on similar subject matter. The testimony concerned the feed in the bucket when the accident occurred. Dildine testified that he did not remember what type of feed he was carrying. The pertinent testimony by the two witnesses was as follows:

TESTIMONY OF DR. MINK:
Q. ... Did I provide you with a sample of the material that had supposedly been moved or transported at the time . . . the material that was being moved in the bucket?
BY MR. McNEILL: Your Honor, we’re going to object to this question. I believe the plaintiff himself testified he didn’t know what he was using or — There’s been no testimony in the record as to what material was being loaded at the time, [objection sustained]
TESTIMONY BY DENNIS COMBS:
Q. At that time, did you go over and get a load in the bucket?
A. Yes.
Q. Was it a full load?
A. What we done, we loaded the bucket just to the capacity of the bucket, without using the extension. There was no material after the level of the extension and the bucket weighed 1,060 pounds.
BY MR. STEELE: Your Honor, I’m going to object. We don’t know what type of material that was loaded. There’s been no evidence of the kind of material that Mr. Dildine was carrying.
BY THE COURT: Mr. Steele, you will be given an opportunity to explore both of those items on cross-examination.

The appellant argues that the court allowed Combs to testify about an experiment he did concerning the accident but disallowed Mink’s testimony about a similar experiment. This contention is without merit. Dr. Mink did testify about his experiment and gave his opinion on the Bobcat’s defectiveness and the effect of Tenco’s modification. He simply was not allowed to state that, in his experiment, he filled the bucket with the same kind of feed used by Dildine, since the type of feed was unknown. In Combs’ testimony, no attempt was made to state what type of material filled the bucket, he merely said that the bucket was filled. The credibility of the two witnesses and the weight to be accorded their testimony is solely within the province of the jury. Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (1980). The trial judge did not abuse his discretion in allowing the testimony.

Dildine’s final allegation of error is that the court erred in allowing two pictures into evidence, defendant’s (appellee here) exhibits 6 and 7. Dildine argues that since the pictures were taken after the Bobcat was washed off they were not a true representation of the Bobcat as it looked when the accident occurred.

Exhibit 6 is a photograph of the warning sticker inside the cage of the Bobcat. It was admitted into evidence in conjunction with testimony that the sticker was in the cage on the day of the accident and has been in the Bobcat the whole time Tenco has owned it. Exhibit 7 is a picture of the inside of the Bobcat where the driver sits. It shows a manual and instructions hanging on a cable inside. There was testimony that the sticker and manual in the Bobcat had been cleaned up since the accident. “The law is settled that the introduction of photographs rests largely within the discretion of the trial judge.” Smith v. State, 10 Ark. App. 390, 664 S.W.2d 505 (1984). In Horne v. State, 12 Ark. App. 301, 677 S.W.2d 856 (1984) the Court of Appeals upheld the admission of a shirt into evidence which had been washed since the crime was committed. The court said, “[t]he possibility that certain stains on the shirt had been washed away simply goes to'the weight the jury was to accord the evidence.” The same is true here. There was ample testimony to let the jury know that the Bobcat was much dirtier when the accident occurred than it was in these pictures. The pictures were not introduced as depicting the Bobcat at the time the accident occurred in any respect but to demonstrate the presence of the warning sticker, manual and instructions. The judge did not abuse his discretion.

Affirmed.


author: George Rose Smith, Justice.

text:
    Laverne E. FRENCH v. DILLARD DEPARTMENT STORES, INC.
    84-288
    686 S.W.2d 435
    Supreme Court of Arkansas
    Opinion delivered April 1, 1985

      Mary Ann Gunn of Williams & Gunn, for appellant.

      William Robert Still, Jr., of Barrett Law Firm, for appellee.
   George Rose Smith, Justice.

From 1972 until September, 1982, the appellant was employed by the appellee in the cosmetics department of its Fayetteville store. After her employment was terminated, she brought this action for slander and for her assertedly wrongful discharge. Upon the appellee’s motion for a partial summary judgment the trial judge granted such a judgment as to the discharge. The Court of Appeals transferred the case to us as possibly involving an issue that was touched upon but not decided in two recent cases. Jackson v. Kinark Corporation, 282 Ark. 548, 669 S.W.2d 898 (1984); Griffin v. Erickson, 277 Ark. 433, 642 S.W.2d 308 (1982).

In Griffin we followed our long-standing rule that when the term of employment is left to the discretion of either party, or is indefinite, or is terminable by either party, then either may end the relationship at will and without cause. The possible change mentioned in the two cases would be brought about, as we said in Jackson, “by finding an express or implied agreement for a specified period of employment or by imposing on the employer a duty not to discharge the employee arbitrarily or in bad faith.”

The appellant presents her arguments as four points for reversal, but there is actually only one essential issue: Does the proof submitted for and against summary judgment present any material disputed question of fact that might bring the case within the Jackson exceptions? We find none.

The appellant testified that when she was orally employed in 1972, she was told that she could work as long as she desired. No definite term was specified. She signed a written application that included this statement: “I understand and agree that Dillard’s may terminate my employment at any time, without prior notice or liability of any kind, except for wages earned and unpaid at the time of such termination.” Thus the original agreement was terminable at will by either party, under the common-law rule we have always followed.

As to later modifications of the agreement, only three are suggested. First, Dillard’s initiated a profit-sharing plan to which it contributes. After five years an employee’s interest is vested in the sense that she receives the balance in her account at her retirement or a percentage of it if she is terminated before retirement. The plan, however, is not shown to involve any assurance of continued employment. Second, there is a stock-purchase plan. After one year’s employment an employee may contribute up to 3% of her pay, which Dillard’s will match and use for the purchase of stock in the company. The employee then simply owns the stock; it has nothing to do with her continued employment. Third, in a proffered affidavit which we have taken into consideration, the appellant stated that from the time she accepted the employment she was required to give two-weeks notice of any decision on her part to terminate the employment and would lose certain benefits if she failed to do so. Such a provision is not uncommon, but it does not assure the employee of a job for any specified length of time. Rather to the contrary, it confirms the employee’s right to quit.

In sum, we find nothing in the proof to present an issue of fact with respect to the possible exceptions discussed in the Jackson and Griffin opinions.

Affirmed.


author: John I. Purtle, Justice.

text:
    Cullen LIVINGSTON, et al v. J. Bruce STREETT, et al
    84-297
    686 S.W.2d 794
    Supreme Court of Arkansas
    Opinion delivered April 1, 1985
    [Rehearing denied May 6, 1985.]

      W. H. Drew, of Drew & Mazzanti, for appellants.

      David F. Gillison, Jr. and Alex G. Streett, for appellees.
   John I. Purtle, Justice.

This is the second time we have reviewed this case. In Cannco Contractors, Inc. v. Livingston, 282 Ark. 438, 669 S.W.2d 457 (1984), we remanded the matter to the trial court for redetermination of ownership of certain lands. This is an appeal from the trial court’s second decision. The appellants argue that the chancellor did not comply with our first decision in the case and that the trial court should have granted summary j udgment. The chancellor applied the law in accordance with our mandate and correctly refused to grant summary judgment.

We reversed in part and affirmed in part on the first appeal. The reversal related only to abandonment and damages. We held that the railroad had abandoned the property and that nothing in the record supported an award for $300 damages. These two things were all that we reversed. All other holdings were affirmed and are binding upon the parties and the courts.

When the case was returned the parties submitted the same briefs and arguments which were used in this court to the trial court. Each party moved for a summary judgment and the court denied both motions. No additional testimony or evidence was offered before the trial court. In accordance with his interpretation of our opinion and mandate the trial judge considered the facts and evidence and awarded ownership of the abandoned railroad property to different parties.

This appeal relates to lands designated on Exhibit 17 as tracts “A” and “C.” Both tracts were parts of a grant to the railroad made in 1902. The Streetts deeded the property to the railroad with the restriction of “so long as it shall be used for railroad purposes.” Other lands were deeded to the railroad in fee and these lands are not here in question. We held on the first appeal that the railroad abandoned this right of way when it sold the land to the Livingstons in 1980. When the grantee abandoned the property the title reverted to the Streetts or their assigns. Cannco purchased tract “A” from the Streetts after the railroad deeded it to the Livingstons. Tract “C” was not deeded to anyone except Mopac and it was proper for the court to confirm title in tract “C” in the heirs of Streett and tract “A” in Cannco as it derived its title from the Streett heirs. Since Cannco was given title to tract “Á” it was proper for the court to disallow the $300 it had found Cannco owed the Livingstons.

The decree of the trial court is affirmed in all matters.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Rudolph LANE and James Matthew LANE by Rudolph LANE, His Grandfather and Next Friend v. ARKANSAS BLUE CROSS AND BLUE SHIELD, INC.
    84-296
    686 S.W.2d 438
    Supreme Court of Arkansas
    Opinion delivered April 1, 1985

      Michael Everett, for appellant.

      Jim Patton, for appellee.
   Robert H. Dudley, Justice.

Appellant, Rudolph Lane, and his family were insured by appellee, Blue Cross-Blue Shield, under his employer’s group medical insurance policy. He filed suit against appellee for expenses incurred in the medical treatment of his newborn grandson who suffers from congenital heart problems. The grandson was born to appellant’s unmarried sixteen year old daughter. Appellant tacitly admits that his grandson is not within coverage of the insurance contract but contends that Ark. Stat. Ann. § 66-3248 should be interpreted to require coverage. The trial court held that the statute did not mandate coverage. We affirm. Jurisdiction to construe an Act of the General Assembly is in this court. Rule 29(1 )(c).

Ark. Stat. Ann. § 66-3248, in its pertinent part provides, “Every. . . medical service insurance. . .contract. . .which covers the insured and members of the insured’s family, shall include coverage for newborn infant children by the insured from the moment of birth.”

The term “insured” is not one of fixed meaning, and often its meaning may be ascertained only from the policy or statute in which it appears. See 44 C.J.S. Insurance § 49. As the term is used in this statute it is clear that appellant, Rudolph Lane, is the insured and that his unmarried daughter is a member of his family. The statute then covers his newborn infant children. This conclusion is bolstered by Emergency Clause language which states: “Many . . . hospital and medical service contracts ... do not cover newborn infants of an insured until the infant reaches a certain age. ...” From this clause it would appear that the legislature contemplated coverage for Rudolph Lane’s newborn child but did not intend to extend coverage to cover his grandchild since they did not specifically include newborn infant grandchildren. We are precluded from construing “children” to include “grandchildren” since we previously held that where the word “children” is used in a statute it must be construed to mean only descendants of the first degree unless it is apparent from the context that a broader meaning was intended. Starrett v. McKim, 90 Ark. 521, 119 S.W. 824(1909).

Affirmed.


text:
    John Edward SPENCER v. STATE of Arkansas
    CR 85-31
    686 S.W.2d 436
    Supreme Court of Arkansas
    Opinion delivered April 1, 1985

      Jim Lyons, for appellant.

      Steve Clark, Att’y Gen., by: Clint E. Miller, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was convicted of first degree carnal abuse of a person who was less than fourteen years old. There is no need to review the facts since the sufficiency of the evidence is not questioned. We affirm the judgment.

Appellant first contends that the trial court erred in denying his motion to take the discovery deposition of three prosecution witnesses. He argues that the Due Process Clause gives the accused a right to discovery, and, as authority, cites Wardius v. Oregon, 412 U.S. 470 (1973). The argument is without merit. The Wardius opinion makes it clear that the Due Process Clause does not, by itself, require discovery procedures in criminal cases. Rather, it mandates that when a state imposes discovery against a defendant, due process requires that equivalent rights be given against the state. Arkansas statutes do not provide for discovery against a defendant, as does the Oregon notice-of-alibi rule, at issue in Wardius, which requires that when a criminal defendant intends to rely on an alibi defense, he must notify the State of the place where he claims to have been at the time in question and of the names and addresses of witnesses he intends to call in support of the alibi. Wardius does not mandate discovery under the Arkansas procedure. Hoggard v. State, 277 Ark. 117, 640 S.W.2d 102 (1982). Instead, it is discretionary with the trial judge. Sanders v. State, 276 Ark. 342, 635 S. W.2d 222 (1982). Since appellant has not included any trial testimony in the record we cannot determine whether the trial judge abused his discretion. We do not reverse for failure to grant discovery in a criminal case without showing an abuse of discretion. Sanders v. State, supra.

Appellant next contends that the trial court erred in refusing to quash the information or in suppressing their testimony because the prosecutor took three witnesses to the courtroom and went over their testimony. Again, we find the argument to be without merit. The appellant moved to quash the information, or alternatively to suppress the testimony, or alternatively for a continuance. The court granted the requested alternative motion for a continuance. A party cannot complain of a ruling that was made at the insistence of his own attorneys, Sheppard v. State, 239 Ark. 785, 394 S.W.2d 624 (1965).

Affirmed.


author: Steele Hays, Justice.

text:
    Ray BASS v. STATE of Arkansas
    CR 84-203
    686 S.W.2d 441
    Supreme Court of Arkansas
    Opinion delivered April 1, 1985

      House, Wallace & Jewell, P.A., by: William Dean Overstreet, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant was charged with operating a tractor-trailer in excess of the weight limits prescribed by Act 7 of the 1983 Acts of Arkansas, known as the “Bridge Formula Restriction.” Appellant’s vehicle, loaded with coal, weighed 78,200 lbs. and exceeded the allowed weight by 4,920. A fine of $92 was imposed.

The circuit court rejected appellant’s argument that coal is a form of rock and therefore he was exempt under § 74-817(i) of the Act which provides that vehicles hauling, “sand, gravel, rock or crushed stone,” are not subject to the Act. Appellant renews the argument on appeal and we affirm.

Appellant called two geologists as expert witnesses who gave an opinion that coal is a kind of rock. Rock, they said, was a very general term for materials occupying a significant portion of the earth’s crust, and includes sandstone, granite, limestone, shale and coal, as examples. Several texts they regarded as authoritative were cited which supported their view.

But the issue is not whether coal is a type of rock in a geological sense, but whether the legislature intended to include coal when it exempted “sand, gravel, rock and crushed stone” from the bridge formula. We think not. The basic rule of construction is that words of a statute are to be given their commonly accepted meaning. Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973); Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W.2d 881 (1965).

Sand, gravel, rock and crushed stone are generally regarded as building materials, whereas coal is not. Coal is a fuel, the others are not. Nor do the dictionary definitions suggest that coal is a type of rock. Webster’s New International Dictionary of the English Language, Second Edition, defines coal as:

A black or brownish-black, solid, combustible mineral substance formed by the partial decomposition of vegetable matter without free access of air, under the influence of moisture and, in many cases, of increased pressure and temperature.

Random House College Dictionary, Revised Edition, defines coal as a dark combustible mineral substance consisting of carbonized vegetable matter, used as a fuel.

Finally, it is conceded that gravel, sand and crushed stone are also rocks, which detracts from the theory the legislature intentionally used the word “rock” in a generic sense. Had the legislature intended coal to be exempt, we believe it would have added it to sand, gravel and crushed stone, and not have thought it to be included within the meaning of rock.

Affirmed.

       Ark. Stat. Ann. § 75-817 (1983 Supp.).


author: David Newbern, Justice.

text:
    James Calvin CAGE, Jr. v. STATE of Arkansas
    CR 84-139
    686 S.W.2d 439
    Supreme Court of Arkansas
    Opinion delivered April 1, 1985

      Ken Cook, for appellant.

      Steve Clark, Att’y Gen., by: Clint E. Miller, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The question in this case is whether the confession of the appellant, Cage, should have been suppressed because it was induced by a promise made by police officers. After hearing evidence from Cage and from the police officers who arrested and interrogated Cage, the judge admitted the confession into evidence. A jury returned a verdict of guilty, and Cage was sentenced to serve forty years in prison for rape. Our jurisdiction is based on Arkansas Supreme Court and Court of Appeals Rule 29.1. b.

At a hearing on his motion to suppress, Cage testified that Officer Presley had promised him "mental help” if he would sign a confession; that if he did so he could probably be out of a mental institution in three or four years and otherwise they could put him away for fifty to one hundred years and he would never see West Memphis again.

At the same hearing, Presley testified that Cage had initiated discussions of his needing help because he, Cage, did not know why he had committed the crime. Presley testified he agreed with Cage, that he needed help, but Presley clearly testified that no promises were made. Similar testimony was given by Officer Sudburry who also said no promise was made to Cage.

When involuntariness of a confession is alleged, we make an independent review of all the circumstances surrounding the confession. Davis v. State, 275 Ark. 264, 630 S. W.2d 1 (1982). We determine whether the record shows the will of the accused was somehow overcome at the time he confessed. Dewein v. State, 114 Ark. 472, 170 S.W. 582 (1914).

The factors we consider are set out in Cessor v. State, 282 Ark. 330, 668 S.W.2d 525 (1984); Perkins v. State, 258 Ark. 201, 523 S.W.2d 191 (1975). See also Schneckloth v. Bustamonte, 412 U.S. 218 (1973). The appellant here was thirty-four years old. He was literate and had gone through the twelfth grade in school. He was advised of his rights before confessing and before the conversation about "mental help” occurred, and he acknowledged his understanding of his rights. Before confessing, the appellant was detained about one and a half hours, during which time he was questioned intermittently and he was allowed to phone his father twice.

Cage’s testimony conflicted with that of Presley and Sudburry as to whether or not there was a promise and as to his allegation that Presley used profanity toward him. His allegation of the latter did not amount to what we might call undue mental pressure. No physical abuse was alleged. With respect to the conflict in testimony as to whether a promise was made, the trial court obviously resolved it against the appellant, and we have been given no substantial reason to say the trial court was wrong. Fleming v. State, 284 Ark. 307, 681 S.W.2d 390 (1984); Fuller v. State, 278 Ark. 450, 646 S.W.2d 700(1983).

Affirmed.


text:
    James Calvin HARRIS v. STATE of Arkansas
    CR 84-190
    686 S.W.2d 440
    Supreme Court of Arkansas
    Opinion delivered April 1, 1985

      John F. Gibson, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Sandra Tucker Partridge, Asst. Att’y Gen., for appellee.
   Per Curiam.

The appellant was convicted of DWI, first offense. He asked the court to suspend his sentence or put him on probation so he would not have to attend an alcohol treatment or education program required by Ark. Stat. Ann. § 75-2509 (Supp. 1983). The court refused his request, finding it was without authority to grant it in view of the mandatory nature of the statute. Our jurisdiction arises from Arkansas Supreme Court and Court of Appeals Rule 29. 1. c.

The appellant recognizes that our decision in Lovell v. State of Arkansas, 283 Ark. 425,678 S.W.2d 318 (1984), makes it clear that the word “shall” as used in Act 549 of 1983 makes its provisions mandatory and that we held in the Lovell case that trial courts have no discretion to use alternatives of probation or suspension pursuant to Chapter 12 of Title 41 of Arkansas Statutes Annotated as they may with respect to many other offenses. The appellant asks us to reconsider our ruling in the Lovell case, but he gives us no reason to do so other than the tradition in our courts of granting probation and suspension and the fact that Act 549 does not specifically say that the sentencing alternatives of Ark. Stat. Ann. § 41-1201 (Repl. 1977) may not be used.

In view of the specificity of the Act, cited in the Lovell case and re-emphasized in the opinion denying rehearing in that case, we decline to overrule our previous decision.

Affirmed.


author: John I. Purtle, Justice,

text:
    J. C. “Buddy” JOHNSON v. STATE of Arkansas; and Cecil A. TEDDER, White County Circuit Judge
    CR 85-53
    686 S.W.2d 443
    Supreme Court of Arkansas
    Opinion delivered April 1, 1985

      Paul Petty, for petitioner.
    No response filed for respondents.
    Purtle and Newbern, JJ., would grant.
   John I. Purtle, Justice,

dissenting. I would grant the writ because I think all parties are entitled to know whether they are trying a misdemeanor or a felony. The time and money saved is great if we hold that the offense is a misdemeanor. On the other hand, if we hold it is a felony no one is injured because all trial courts have plenty of cases to try without these. Needless to say an accused will not suffer harm unless he is being held in custody awaiting trial.

Newbern, J., joins in this dissent.


author: Per Curiam. John I. Purtle, Justice,

text:
    Robert Steven OSGOOD and Anthony Gerald TEMPLE v. STATE of Arkansas
    CR 85-45 and CR 85-46
    686 S.W.2d 442
    Supreme Court of Arkansas
    Opinion delivered April 1, 1985

      Hani W. Hashem, for petitioner Robert Steven Osgood.

      R. Byrum Gibson, Jr., for petitioner Anthony Gerald Temple.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for respondent.
   Per Curiam.

Respondent’s motion to reconsider issuance of temporary Writ of Prohibition is granted.

Purtle and Newbern, JJ., dissent.

John I. Purtle, Justice,

dissenting. I dissent from the action taken by the majority in granting the motion to reconsider. We did not grant a writ of prohibition but granted a stay until we could decide the issue of whether the present law declares possession of marijuana with intent to deliver to be a misdemeanor or a felony. In this dissent I will argue that a writ of prohibition is proper in this case. In reenacting Ark. Stat. Ann. § 82-2617(a)(l)(iv), the 1983 General Assembly apparently, or at least arguably, downgraded possession of marijuana to a misdemeanor. There is at least sound argument that the offense as stated is a misdemeanor. Temple and Osgood, as well as perhaps hundreds of others, contend the offense is a misdemeanor. They are charged with felonies.

I think we wisely granted the stay or prohibition pending briefing by the parties. In fact, the State more or less agreed to the continuance because the matter was of “great public interest and importance.” It was, and is indeed, a matter of great importance. In the event we finally hold the offense to be a misdemeanor we could, by staying prosecutions temporarily, save the state and counties large sums of money. Certainly a defendant is entitled to know whether he is charged with a misdemeanor or a felony. An accused facing a possible penalty of one year is certainly not in the position of one facing ten years. In all fairness one ought to know, before he is tried, the maximum sentence he could receive upon conviction. By granting a stay we would harm no one but by refusing to do so we are doing irreparable harm, if we decide the offense is a misdemeanor.

The writ of prohibition is truly an extraordinary writ and should not be issued without considerable thought and then only in unusual circumstances. In granting prohibition in Curtis v. Partain, Judge, 272 Ark. 400, 614 S.W.2d 671 (1981), we stated: “We grant the writ only because we deem the matter to be of first impression and of general interest to all trial courts.” In Curtis we granted the writ to keep the trial judge from enforcing his own pre-trial order. Certainly a pre-trial order is one which may be appealed with the case in chief.

Newbern, J., joins in this dissent.


text:
    F. M. & Lyda M. BRIXEY, Husband and Wife, and Frank N. & Martha Marie BRIXEY, Husband and Wife, v. CITY OF BOONEVILLE, ARKANSAS
    84-305
    687 S.W.2d 126
    Supreme Court of Arkansas
    Opinion delivered April 8, 1985
    [Rehearing denied May 13, 1985.]

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

      Paul X. Williams, Jr., and Paul Danielson, by: Paul Danielson, for appellee.
   Jack Holt, Jr., Chief Justice.

This case raises questions about the right of a city to condemn land. We find that the appellants are precluded from raising these issues. Jurisdiction is pursuant to Sup. Ct. R. 29(1 )(n) because the case involves oil and gas rights.

On June 4, 1975, the city of Booneville filed suit in Sebastian County Circuit Court to condemn flowage easements over lands owned by the appellants. The purpose of the taking was to provide for impounding water and rights of way for water lines and other facilities necessary for a water distribution system which the city was developing. On the day before the trial of the case, the city filed an amendment to its complaint, seeking a fee simple interest in the lands rather than flowage easements. No objection was made to the amendment and the jury issued verdicts upon the complaint as amended. The verdicts awarded compensation for the lands taken to the defendants, who are the appellants in this proceeding, with judgment entered on the verdicts on October 30, 1975.

In 1984 appellants filed this chancery action seeking a declaratory judgment reserving to them the oil, gas and other mineral rights underlying the lands acquired by Booneville in the 1975 judgment.

The trial court found that the city did condemn the lands in question in fee simple, and the same was done properly. We agree.

Appellants argue that the Sebastian County Circuit Court, which entered the 1975 judgment of condemnation did not have jurisdiction to award the fee simple estate because of the general rule of eminent domain that no more property of a private individual, and no greater interest therein, can be condemned and set apart for public use than is absolutely necessary to satisfy the public purpose. This general rule still applies, however, it is also a rule that when the property owners, in this instance the appellants, thought that the lands were about to be condemned, and an interest greater than necessary was about to be taken, an answer should have been filed at that time contesting the taking, with a motion to transfer to equity. Selle v. City of Fayetteville, 207 Ark. 966, 184 S.W.2d 58 (1944). This was not done. Thus, the right of the appelants to litigate these questions is deemed to have been waived and the appellants are precluded from raising this issue at this late date. Selle v. City of Fayetteville, supra.

The city of Booneville had the authority to take a fee simple interest under Ark. Stat. Ann. § 35-902 (Repl. 1962). The amended complaint of the city clearly declares a fee simple taking and the amounts awarded,, which were accepted by the appellants, fully support the taking of a fee.

Accordingly, the chancellor was correct in finding that the city did in fact acquire the lands in question in fee simple absolute and that the appellants were not entitled to claim any oil, gas or mineral rights underlying the lands.

Affirmed.


text:
    HARTFORD ACCIDENT & INDEMNITY COMPANY v. STEWART BROTHERS HARDWARE COMPANY
    84-313
    687 S.W.2d 128
    Supreme Court of Arkansas
    Opinion delivered April 8, 1985

      Saxton & Ayers, for appellant.

      W. Frank Moreledge, P.A., for appellee.
   George Rose Smith, Justice.

The appellant Hartford was the corporate surety on a contractor’s bond given to secure the payment of bills for labor and material furnished to the contractor on a private construction job. The contractor ceased work on the contract on March 26,1976. Some two years later, on May 31, 1978, the appellee Stewart Brothers brought this action against Hartford to recover an amount owed for materials furnished to the contractor, plus the statutory penalty and attorney’s fee. Hartford pleaded as its defense a one-year limitation period contained in the bond sued upon. The trial court rejected the plea of limitations and entered judgment for the plaintiff upon undisputed facts. Our jurisdiction of the appeal is pursuant to Rule 29(1 )(c).

The principal question is that of limitations. The governing statute provides that no action upon such a bond shall be brought against the corporate surety after six months from the date final payment is made on the contract. Ark. Stat. Ann. § 51-636 (Repl. 1971). It is stipulated that the last payment was made on October 2, 1978. Since this suit was brought four months before that date, it was apparently timely.

The bond, however, provides in substance that no action on the bond shall be commenced after the expiration of one year following the date on which the contractor ceased work on the contract, “it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof,” then the limitation shall be the minimum permitted by the law. This action having been filed more than two years after the contractor ceased work, Hartford argues that the one-year contractual limitation is a bar to the suit.

Hartford relies on our holding in City of Hot Springs v. National Surety Co., 258 Ark. 1009, 531 S.W.2d 8 (1975), but that reliance is misplaced. There the common-law bond in question had a two-year limitation from the due date of the final payment on the contract. We held that the parties were free to contract for a limitation shorter than the general five-year statute applicable to written instruments if the stipulated time was not unreasonably short “and the agreement did not contravene some statutory requirement.” Upon the facts in that case the plaintiff had, under the terms of the bond, more than a year and eight months for bringing suit. We considered that to be ample time and upheld the contractual limitation.

By contrast, here the specific statute, supra, allows the suit to be filed up to six months from the date of final payment on the contract. That is a reasonable point of beginning, for the materialman may not know the exact amount of his claim, if any, until that final payment has been made. The one-year contractual limitation, however, began to run from the date the contractor ceased work and would have actually barred this suit even before the statutory limitation had been set in motion b.y the final payment. We hold, therefore, that the contractual limitation was prohibited by the controlling statute, so that the alternative minimum period recognized by the bond became controlling. The action was brought within that period and so is not barred.

Hartford argues secondarily that an attorney’s fee allowance cannot be sustained in the absence of proof of the nature and extent of the attorney’s services. That is not the law. When the trial judge is familiar with the case and the service done by the attorneys, the fixing of a fee is within the discretion of the court. Tech-Neeks, Inc. v. Francis, 241 Ark. 390, 407 S.W.2d 938 (1966). Here the allowance of a $3,000 fee was based upon the recovery of an $11,571.11 judgment. We do not regard the amount as excessive.

Affirmed.


text:
    COMPUTE-A-CALL, INC., a Missouri Corp., COMPUTE-A-CALL, INC., an Arkansas Corp., Cecil WHITE and Bob BOEHM v. Ralph TOLLESON and Lewis JONES
    84-302
    687 S.W.2d 129
    Supreme Court of Arkansas
    Opinion delivered April 8, 1985

      Gary D. Corum and Timothy O. Dudley, for appellants.

      Brazil, Clawson ¿r Adlong, for appellees.
   Robert H. Dudley, Justice.

The appellees filed a complaint in chancery court stating that they had suffered irreparable damage because the appellant did not pay money due under the terms of a contract. They asked for a temporary injunction directing that the appellants pay the money already due, and also pay the money which would become due under the terriis of the contract. The chancellor refused to transfer the case to circuit court and granted the temporary injunction ordering that appellants pay $40,760.13 into the registry of the court and to make future payments under the terms of the contract. We reverse and remand. Jurisdiction to hear this interlocutory appeal is vested in the Court under Rule 29(1 )(k).

The prospect of irreparable harm or lack of an otherwise adequate remedy is at the foundation of the power to issue injunctive relief. Harm is normally only considered irreparable when it cannot be adequately compensated by money damages or redressed in a court of law. Kreutzer v. Clark, 271 Ark. 243, 607 S.W.2d 670 (1980). Money damages are the only damages asked in this case. The remedy at law is adequate. The chancellor erred in refusing to transfer the case to circuit court and erred in granting an injunction for money damages.

The complaint does state that appellees suffered irreparable damage. However, such a conclusory allegation, with no statement of fact, is not sufficient to give equity jurisdiction. Duncan v. Baxter, 222 Ark. 955, 264 S.W.2d 395 (1954).

This case is reversed and remanded with directions to dissolve the injunction, to return the money which appellants have paid into the registry of the court, and to transfer the case to circuit court.

Reversed and remanded.


text:
    George HUFSMITH v. Charles T. WEAVER, Individually and in his capacity as President of L & S Concrete Company, et al.
    84-263
    687 S.W.2d 130
    Supreme Court of Arkansas
    Opinion delivered April 8, 1985

      Perroni 1? Rauls, P.A., for appellant.

      Davidson Law Firm, Ltd., by: Stephen L. Gershner, for appellees Weaver; L8cS Concrete Co.; Webco, Inc.; Case; and Case Concrete Co.

      Stephen Napper, for appellees Gilliam and Gilliam Brothers, Inc.
   David Newbern, Justice.

In this action for tortious interference with a contract, a summary judgment was entered in favor of the defendants who are now the appellees. The appellant, Hufsmith, was not a party to the contract which was allegedly subverted by the appellees. Rather, he based his standing to sue on his position as a third party creditor beneficiary. The trial judge held the allegations of the complaint were insufficient to sustain the contention that the appellant was a third party creditor beneficiary. To that we add that there was no remaining genuine issue of material fact, as shown by the record, when the summary judgment motion was made, thus summary judgment was proper. Ark. R. Civ. P. 56(c). As this was a tort action, our jurisdiction arises under Arkansas Supreme Court and Court of Appeals Rule 29. 1. o.

The allegations of Mr. Hufsmith were that he, as president and majority shareholder of Razorback Ready Mix Concrete Company, Inc. (Ready Mix), entered into a contract to sell the assets of that company to Razorback Quality Concrete Company. He further alleged that the sale was dependent upon the issuance of industrial revenue bonds pursuant to Ark. Stat. Ann. §§ 13-1601 through 13-1616(Repl. 1979andSupp. 1983), popularly known as Act 9 bonds. Finally, Hufsmith alleged that the bond issue failed because of a “false and fraudulent” lawsuit filed by the appelles to block the issuance of the bonds, and that the appellees, who were competitors of Ready Mix, knew that failure of the bond issue, and thus of the sale, would cause the financial ruin of Ready Mix.

In an affidavit in support of his opposition to the appellees’ motion for summary judgment, Mr. Hufsmith stated that because of the failure of the sale he was forced to use his own assets to pay off obligations of Ready Mix which he had personally guaranteed. It is this posture as guarantor of the obligations of Ready Mix, which was known to the appellees, which Hufsmith contends makes him a third party beneficiary to the contract of sale and thus gives him standing in this lawsuit.

Neither the allegations nor the affidavit was sufficient to show a remaining factual issue on the matter of Mr. Hufsmith’s standing. With respect to the relationship of pleadings and summary judgment see Joey Brown Interest v. The Merchants National Bank of Fort Smith, 284 Ark. 418, 683 S.W.2d 601 (1985). Hufsmith cites no case showing that a third party beneficiary may bring an action for tortious contract interference. More importantly, the cases he cites to demonstrate his third party beneficiary status are woefully inadequate.

Hufsmith cites Wilson v. General Mortgage Co., 638 S.W.2d 821 (Mo. App. 1982), for this language: “one upon whom the promisee intends to confer the benefit of performance of the contract and thereby discharge an obligation or duty the promisee owes the beneficiary” is a third party creditor beneficiary (638 S.W.2d at 823). While the quoted language sounds good and is correct in the abstract, it is not helpful to Hufsmith’s argument. In the Wilson case the plaintiff was a mortgagor who alleged the mortgagee had promised the Federal Housing Commissioner to make diligent efforts to acquire fire insurance to replace that which had been cancelled on plaintiff’s mortgaged home. The plaintiff’s home burned, and she sued the mortgagee claiming to be a third party beneficiary of the mortgagee’s promise to the Commissioner. After citing with approval ALI, Restatement, Contracts § 133(1 )(b) (1932), and discussing the standard fare on creditor and donee beneficiaries, the court held the plaintiff had not stated a cause of action because she alleged no facts showing the Commissioner owed her a duty which would have been discharged had the contract been performed by the mortgagor.

The same is true here. Accepting Mr. Hufsmith’s statement that he was the guarantor of obligations owed by Ready Mix, there is no allegation or evidence that Ready Mix owed Hufsmith anything when the contract was entered.

The contract was entered on February 26, 1982. According to Hufsmith’s affidavit, it was not until May 29, 1982, that he received a demand letter requesting that he, personally, pay the notes he had guaranteed for Ready Mix. No duty of Ready Mix to Hufsmith would have been discharged had the sale been consummated, because, as Hufsmith contends, there would have been no default by Ready Mix, and no duty on the part of Ready Mix to reimburse Hufsmith would have arisen. For a very similar situation in which status as a third party beneficiary was denied, see Shamburger v. Moody, 322 F. Supp. 196 (E.D. Ark. 1970).

The duty or obligation of the promisee to the purported third party creditor beneficiary and the prospect of satisfaction of that duty by performance are integral elements of the description of a third party creditor beneficiary according to the Restatement. ALI, Restatement of Contracts, Second, § 302(l)(a) (1981). For an article analyzing the Arkansas cases in light of the first Restatement, cited earlier, see Comment, Enforceability of Third-Party Beneficiary Contracts in Arkansas, 5 Ark. L. Rev. 66 (1950). A more recent review is contained in Ozark Milling Co., Inc. v. Allied Mills, Inc., 349 F. Supp. 553 (W.D. Ark. 1972)..

The other case cited by Hufsmith on this point is Southern Farm Bureau Casualty Co. v. U. S., 395 F.2d 176 (8th Cir. 1968), which involved an insurance contract in which the promise in the contract was to indemnify accident victims. It was properly conceded by Mr. Hufsmith’s counsel in oral argument that such a case is not applicable here.

The appellees have argued that Hufsmith could not bring this action as a shareholder on behalf of Ready Mix. We find that argument inapposite, as Hufsmith sued as a third party beneficiary, not as a shareholder representing Ready Mix. They also argued the Noerr-Pennington privilege. See Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127(1961); United Mine Workers v. Pennington, 381 U.S. 657 (1965). We need not consider whether their lawsuits against Hufsmith were privileged in view of our agreement with the trial court that Hufsmith lacked standing to bring this action.

We hold summary judgment in favor of the appellees was correctly entered because there was no remaining genuine issue of material fact as to whether Hufsmith was a third party creditor beneficiary, and thus Hufsmith lacked standing to bring this action.

Affirmed.

Hays, J., not participating.


text:
    OVERTON CONST. CO., INC., Michael J. OVERTON & Vickie L. OVERTON v. FIRST STATE BANK, Springdale, Ark.
    84-238
    688 S.W.2d 268
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      Everett ¿r Whitlock, by: John C. Everett, for appellants.

      Herdlinger, Jacoway & Stanley, P.A., by: Roy Stanley, for appellee.
   Jack Holt, Jr., Chief Justice.

This is the second appeal of a case involving a default judgment on a promissory note. Our jurisdiction is pursuant to Sup. Ct. R. 29(l)(j).

The appellants executed a promissory note to the appellee which was secured by a mortgage on real property. When the appellants defaulted, the appellee filed a complaint to foreclose on the property. The appellants asserted usury as a defense in their answer to the complaint.

The trial court found the note was not usurious under the governing federal law. That ruling was appealed to this court and we affirmed in part, reversed in part, and remanded in part on December 12, 1983. Overton Const., Inc. v. First State Bank, Springdale, 281 Ark. 69, 662 S.W.2d 470 (1983), rehearing denied, Janaury 16, 1984.

On remand, the appellants filed an amended answer in which they alleged that the real property securing the promissory note was not “residential” real property within the meaning of the applicable federal legislation. The trial court struck the amended answer. It is from that order that this second appeal is brought. We affirm.

This court has consistently held that when a cause is broadly remanded for a new trial all of the issues are opened anew as if there had been no trial, and the parties have a right to amend their pleadings as necessary. Sanders v. Walden, 214 Ark. 523, 217 S.W.2d 357 (1949); American Nat’l Ins. Co. v. Laird, 228 Ark. 812, 311 S.W.2d 313 (1958); and Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979). Here there was no such broad remand. Instead, this court in Overton, supra, decided all of the issues except for the question of whether or not the parties proceeded to trial “with the knowledge that First State Bank was a member of the Federal Deposit Insurance Corporation.” Overton, 281 Ark. at 71. It was for the narrow purpose of resolving that question that this case was remanded. It is a general rule that a party is not allowed on remand to amend his pleadings so as to open up matters that were adjudicated by the appellate court. 5B CJS Appeal & Error § 1969 (8) (1958).

In fact, this appeal marks the appellants’ third attempt to litigate the question of whether or not the property securing the mortgage was residential property. This same issue was raised in the first appeal and in the petition for rehearing. Clearly this court has already answered the appellants’ contention.

In Harper v. Nash Implement Co. Inc., et al, 281 Ark. 161, 662 S.W.2d 811 (1984), we found the trial court had correctly applied the doctrine of “law of the case” by refusing to permit additional pleadings on remand. We said:

The principles of law determined and announced in the former appeal are binding and must stand as the law of the case . . . The decision of the trial court. . . was approved by this Court in the first appeal. On retrial the trial court correctly applied the doctrine of “law of the case” in applying the law set out in this Court’s opinion in the original appeal. Accordingly, we conclude the trial court was correct in refusing to grant a trial de novo on all of the issues.
We reach the same conclusion in this case.

Affirmed.


text:
    Norma FOSTER v. STATE of Arkansas
    CR 84-188
    687 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      James C. Cole, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Norma Foster, was convicted of first degree murder and sentenced to life imprisonment. This appeal from that conviction is before us under Sup. Ct. R. 29( 1 )(b). We reverse and remand.

The appellant’s conviction stemmed from her alleged participation in the contract killing of Orin Hendrickson of Arkadelphia. At the time of the murder, the appellant was a housemother at Ouachita Baptist University in Arkadelphia. Mrs. Foster was accused of having conspired with Hendrickson’s wife, Pat, and Mark Yarbrough, a student at OBU, to hire Howard Vagi, another OBU student, to kill Hendrickson in return for money. Vagi did in fact kill Hendrickson and is serving a life sentence in prison for that crime. Yarbrough was granted immunity from prosecution in return for his testimony at Mrs. Foster’s trial.

The appellant raises numerous issues on appeal, and we find merit in her contention that the trial judge erred by refusing to suppress her taped statement. The facts surrounding the taping of the statement were as follows: Four officers went to the appellant’s home at about 2:30 a.m. They knocked on the door, and, when Mrs. Foster answered, told her that the prosecuting attorney, W. H. “Dub” Arnold, would like to see her and for her to come with them to his office. The officers testified that they went to pick Mrs. Foster up at the prosecuting attorney’s request. Once she arrived at Arnold’s office, the appellant was questioned by two of the officers. The prosecuting attorney did not participate in the questioning although he was in the building. He entered the room where Mrs. Foster was being questioned once to bring a tape recorder into the room and play part of a taped statement by Mark Yarbrough. Arnold told the appellant, “We know whatever the truth is. You might as well tell them.” He then left the room. Before taping Mrs. Foster’s statement, one of the officers informed her of her rights and she signed a waiver form.

The appellant contends that she was unlawfully brought to the prosecutor’s office for questioning and she is right. When we review a ruling on a motion to suppress evidence, “we make an independent determination based upon the totality of the circumstances.” Grant v. State, 267 Ark. 50, 589 S.W.2d 11 (1979). We do not set aside the trial judge’s finding unless it is clearly against the preponderance of the evidence. Ibid.

There are several legal mechanisms by which an individual can lawfully be picked up for questioning, but none of them were used in this case.

Arkansas R. Crim. P. 2.2 provides that a law enforcement officer may request a person to furnish information or to otherwise cooperate in the investigation of a crime. Rule 2.3 provides that if, pursuant to this rule, the officer asks any person to come to or remain at a prosecuting attorney’s office, the officer shall take steps to make it clear that there is no legal obligation to comply with the request. To the contrary, no such steps were taken here. In fact, one of the officers agreed during his testimony that Mrs. Foster did not volunteer for questioning but only went to the prosecutor’s office “because four officers came out to her house and picked her up and carried her down there.” The fact that Mrs. Foster accompanied the officers without being arrested or forced to comply does not demonstrate acquiescence. “[C]onsent to an invasion of privacy must be proved by clear and positive testimony — a burden that is not met by showing only acquiescence to a claim of lawful authority.” Meadows v. State, 269 Ark. 380, 602 S.W.2d 636 (1980). Such acquiescence is all the state has been able to demonstrate here.

Ark. Stat. Ann. § 43-801 (Repl. 1977) authorizes a prosecutor to issue subpoenas in all criminal matters under investigation. These written subpoenas must substantially follow a form provided in the statute. Here there was no subpoena used, the officers merely acted at the prosecutor’s direction.

It is illegal to use a prosecutor’s subpoena power “to obtain the presence of a witness for questioning by a police officer, absent the prosecutor.” Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark. App. 1980). It is unquestionably illegal therefore to use the office of the prosecutor, absent even a subpoena, to obtain the presence of a witness for the same purpose. The officers picked Mrs. Foster up in the middle of the night ostensibly because the prosecutor wished to see her. The prosecutor however did not participate in the subsequent questioning except for one brief appearance to play a portion of a tape. The entire procedure whereby Mrs. Foster’s presence at the prosecutor’s office was obtained was merely a guise to let the officers detain her and interrogate her. Based on the totality of the circumstances, the illegality of this procedure has impermissibly tainted Mrs. Foster’s subsequent statement and it should have been suppressed.

Since the case will be remanded, we will address the other issues raised by the appellant which are likely to arise on retrial.

The jury in this case was sequestered. The appellant argues that it was error for the trial judge not to administer the mandatory oath to the persons he placed in charge of the sequestered jury. We agree.

The oath is provided for in Ark. Stat. Ann. § 43-2121 (Repl. 1977):

The jurors, before the case is submitted to them, may, in the discretion of the court, be permitted to separate, or be kept together in the charge of proper officers. The officers must be sworn to keep the jury together during the adjournment of the court, and to suffer no person to speak to or communicate with them on any subject connected with the trial, nor do so themselves.

The appellant’s attorney objected twice to the trial judge’s failure to swear the officers pursuant to the statute. His first objection was lodged when the officers were placed in charge of the jury at the beginning of the trial. He objected again the next day before the first witness was called. The judge obviously erred by not administering the oath as required by statute.

The appellant also contends that the trial judge erred by refusing to sequester a witness, W. H. “Dub” Arnold, the prosecutor, with the other witnesses. The appellant asked the trial court to sequester the prosecutor because he expected to call him as a witness for the defense. The court did not err. Uniform R. Evid. 615 provides:

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of . . . (3) a person whose presence is shown by a party to be essential to the presentation of his cause.

Here, Arnold stated and the court found, that he was essential to the case because he was the attorney trying it for the state. In McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978), this court found that neither the statutes on sequestration nor the Code of Professional Conduct requires the exclusion of a party’s attorney when the attorney is called as a witness by the adverse party. We said in McCoy that a party’s only lawyer falls within the category of Rule 615(3) essential persons. “The rule against the attorney who becomes a witness continuing as an advocate was not designed to permit a lawyer to call opposing counsel as a witness and thereby disqualify him.” Ibid. However, had Arnold played a greater role in the interrogation of Mrs. Foster he might have been properly subject to sequestration. Instead the questioning was done by the officers and Arnold entered the room only once to play part of a tape and speak briefly to the appellant.

The appellant also assigned as error the trial judge’s refusal to allow the appellant to introduce the results of Pat Hendrickson’s polygraph test. The admission of the results was sought to bolster Mrs. Foster’s testimony that her suspicions about Mrs. Hendrickson’s involvement in the murder were dispelled when she heard that Mrs. Hendrickson had taken and passed a polygraph examination.

Ark. Stat. Ann. § 42-903 (Repl. 1977) provides that the results of polygraph tests “shall be inadmissible in all courts in this State.” We have held that the results are only admissible if both parties enter into a written stipulation agreeing on their admissibility. Wilson v. State, 277 Ark. 43, 639 S.W.2d 45 (1982). There was no stipulation between the parties and the results were therefore inadmissible. The mere mention of the test, under the circumstances, makes obvious its results, which is inadmissible hearsay.

The court erred however, when it permitted the prosecutor to call Pat Hendrickson, the wife of the deceased, who was charged with capital felony murder, as a witness even though both the court and the prosecutor knew that Mrs. Hendrickson would be advised to plead her fifth amendment privilege against self-incrimination. At the appellant’s bail bond hearing, Mrs. Hendrickson’s attorney informed the prosecutor, the appellant’s attorney and the court that he would advise his client to invoke the fifth amendment if she was called to testify at Mrs. Foster’s trial. The appellant argued that calling her in light of her attorney’s statement was a “grandstand play” and sought a mistrial.

When she was called to the stand, Mrs. Hendrickson recited her name, address, the relation of the victim to her, his age at his death, and their child’s name and age. She was then asked, “Mrs. Hendrickson, I will call to your attention the time immediately prior to March 10, 1983 and ask you if you knew Norma Foster?” At that point, the witness invoked her fifth amendment right.

The Court of Appeals dealt with this same question in great detail in Sims v. State, 4 Ark. App. 303, 631 S.W.2d 14 (1982). The court quoted the state’s brief as follows:

The evil in the non-testimony of such a witness is not the mere calling of the witness, but the obvious inferences drawn by a jury to a series of questions, to all of which the witness refuses to answer on Fifth Amendment grounds. In that case the questions themselves “may well have been the equivalent in the jury’s mind of testimony.” Douglas v. Alabama, 380 U.S. 415, 419, 85 S. Ct. 1074, 13 L. Ed. 2d 934, 937 (1965). Such improper questioning, not technically being testimony at all, deprives an accused of his right to cross-examine the witnesses against him as guaranteed by the Confrontation-Clause of the Sixth Amendment to the federal constitution [made obligatory on the states by the Fourteenth Amendment.] Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970); Frazier v. Cupp, 394 U.S. 731, 89 S. Ct. 1420, 22 L. Ed. 2d 684 (1969); Douglas v. Alabama, supra.

The court also cited a Wisconsin decision, Price v. State, 37 Wis. 2d 117, 154 N.W.2d 222 (1967) which held: “no error is committed by the mere fact of calling a witness who will claim the privilege.” Instead the court said Namet v. United States, 373 U.S. 179 (1963) “makes it clear that the forbidden conduct is the ‘conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.’”

Applying this rule to the instant case, there was an attempt by the prosecutor to build the state’s case out of inferences arising from Mrs. Hendrickson’s assertion of her fifth amendment privilege. “[T]he granting of a mistrial is a drastic remedy which should be resorted to only when the prejudice is so great that it cannot be removed.” Gross v. State, 8 Ark. App. 241, 650 S.W.2d 603 (1983); Gammel & Spann v. State, 259 Ark. 96, 531 S.W.2d 474 (1976). Here the prejudice is great.

Reversed and Remanded.


text:
    FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF MORRILTON v. Captain Raimund STACHA et al
    84-256
    688 S.W.2d 269
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      Joe Cambiano; Hardin, Jesson if Dawson; and Steve Kirk, for appellant.

      Tim D. Williams; Clark if Adkisson, by: William M. Clark; and Henry if Henry, by: Robert W. Henry, for appellees.
   George Rose Smith, Justice.

This is another case involving a due-on-sale clause — a provision in a mortgage entitling the mortgagee to accelerate the maturity of the entire debt if the debtor sells the property without the mortgagee’s consent. Several similar foreclosure suits were consolidated for trial. The chancellor entered a summary judgment dismissing all the suits, on the ground that the due-on-sale clauses are not enforceable. The appeal comes to us under Rule 29(1 )(c). The issue is whether under the controlling federal statute the clauses can be enforced.

The various cases are similar. All the mortgages were made to the appellant, a federal savings and loan association, and were secured by liens on real property. All the mortgages were executed during the “window period” between July 31, 1976, and October 15, 1982. (For an explanation of the window period, see Abrego v. United Peoples Sav. & Loan, 281 Ark. 308, 664 S.W.2d 858 [1984].) All the debtors sold their property without the Association’s consent. Presumably the purchasers refused to refinance the loans at a higher interest rate; so the Association declared the debts immediately due and filed these foreclosure suits upon default. The chancellor, considering the federal statutes not to be applicable, refused to allow the acceleration of maturities, in accord with our holding in Tucker v. Pulaski Fed. Sav. & Loan, 252 Ark. 849, 664 S.W.2d 858 (1972).

The due-on-sale innovation has had its ups and downs. Arkansas was one of several jurisdictions that by statute or court decision refused to allow a lender to exercise such an option without some equitable reason for the acceleration. Congress, however, was concerned that such restrictions might impair the stability of the national real estate financing market and therefore passed the Garn-St. Ger-main Depository Institutions Act, effective October 15,1982. See Geier, Due-On-Sale Clauses, 17 San Francisco L. Rev. 355 (1983). The issue here is whether that federal act permits the acceleration of maturities in this case.

The statutory language pertinent to this case is set forth in Section 341 of the Garn-St. Germain Act. 12 U.S.C.A. § 1701 j-3. (WestSupp. 1984). Subsection (b)( 1) provides that notwithstanding any state law or decision to the contrary, a lender may enforce due-on-sale clauses with respect to real property loans. Subsection (c)(1) establishes the window period during which state laws are permitted to remain in force for a limited time. Next, however, is subsection (c)(2), which contains the two subparagraphs on which this case hinges.

(B) A lender may not exercise its option pursuant to a due-on-sale clause in the case of a transfer of a real property loan which is subject to this subsection where the transfer occurred prior to October 15, 1982.
(C) This subsection does not apply to a loan which was originated by a Federal savings and loan association or Federal savings bank.

The appellees contend that subparagraph (B) is applicable, because the transfers to them were prior to October 15, 1982. They, in effect, disregard subparagraph (C) by saying that it does not apply to these mortgages. The appellant, on the other hand, argues that subparagraph (C) confirms the enforceability of due-on-sale clauses, as declared in subsection (b)(1), with respect to all loans originated by a federal savings and loan association such as this appellant.

We think the appellant’s position is clearly right. As Geier, supra, points out, the reference in subparagraph (C) to “[t]his subsection” was sloppy draftsmanship, because of its lack of precision. Even so, we think the reference is necessarily to all of subdivision (c), for several reasons. First, no other workable meaning can be ascribed to the reference to “this subsection.” Second, throughout the section all cross references are to lettered subsections, as to subsection (b), subsection (c), and subsection (d). Hence the reference to “this subsection” evidently follows the same pattern and means all of subsection (c).

Finally, the pertinent Senate committee report pretty well puts the question at rest. That report reads in part:

The United States Supreme Court, in Fidelity Federal Savings and Loan Association v. De La Cuesta, [458 U.S. 141] (1982), recently upheld the right of federally chartered savings and loan associations and federal savings banks to include and enforce due-on-sale clauses pursuant to a 1976 regulation issued by the Federal Home Loan Bank Board. Hence, the due-on-sale practices for federally chartered thrifts, for loans originated by those thrifts, will continue to be subject to the Federal Home Loan Bank Board’s exclusive regulatory authority. The identity of the lender at the time the loan was originated determines whether or not a loan is subject to window period restrictions.

S. Rep. No. 97-536, 97th Cong., 2d Sess. 24, reprinted in 1982 U.S. Code Cong. & Ad. News 3054, 3078.

We have no hesitancy in agreeing with Geier’s conclusion that the window period exception applies only to non-federal loans, so that the due-on-sale clause in loans originated by a federal savings and loan association such as the appellant continues to be enforceable regardless of state law.

Reversed and remanded for further proceedings.


text:
    Alice H. MILLDRUM v. TRAVELERS INDEMNITY COMPANY OF RHODE ISLAND
    85-5
    688 S.W.2d 271
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      Evans ir Evans, by: James E. Evans, Jr., for appellant.

      Jones, Gilbreath & Jones, by: Robert L. Jones, III, for appellee.
   George Rose Smith, Justice.

By stipulation the only question in this case is one of law: Did Act 900 of 1975 prohibit the appellee, Travelers Indemnity, from inserting in a group disability insurance policy a clause providing that total disability benefits under the policy would be reduced by the amount of Social Security benefits received by the disabled employee? Ark. Stat. Ann. § 66-3709 (Repl. 1980). Our jurisdiction is under Rule 29(l)(c).

The unambiguous language of the statute itself unmistakably dictates a negative answer to the question at issue. Act 900 provides that no contract of group disability insurance shall contain any provision for the reduction of benefits because of the existence of “other like insurance.” That phrase is then specifically defined:

The term “other like insurance” may include group or blanket disability insurance or group coverage provided by Hospital and Medical Service Corporations, government insurance plans, union welfare plans, employer or employee benefit organizations, or Workmen’s Compensation Insurance or no-fault automobile coverage provided for or required by any statute.

The enumeration of various private insurance plans as constituting “other like insurance” by implication excludes from the prohibition governmental social programs such as Social Security benefits. In fact, the General Assembly itself later so construed Act 900, for a later statute not applicable to this case amended the original act by including Social Security benefits in the prohibition. Even then, however, Social Security benefits were not classified as “other like insurance.” Instead, those benefits were placed within a new exclusion of “other such coverage.” Act 702 of 1981; Ark. Stat. Ann. § 66-3709 (Supp. 1983).

The appellant argues that Social Security benefits should be included as other like insurance because the emergency clause in Act 900 recites a legislative purpose to prohibit “denial or reduction of benefits under any contract of group disability insurance.” That statement in itself is too sweeping to have any practical force if treated as an enactment, which it is not. In cases of ambiguity we may refer to the language of the emergency clause to clarify the legislative intent. City of Fort Smith v. Brewer, 255 Ark. 813, 817, 502 S.W.2d 643 (1973). Here, however, there is no ambiguity, for the act itself defined the term “other like insurance.” We do not find in the all-inclusive language of the emergency clause any intent to nullify that definition. The trial judge’s interpretation of the statute was right. The. appellant is not entitled to recover additional amounts under the policy in view of the exclusion of Social Security benefits.

Affirmed.


author: Darrell Hickman, Justice.

text:
    James Ray CANADY v. Connie A. CANADY
    84-292
    687 S.W.2d 833
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      Stripling & Morgan, by: Dan Stripling, for appellant.

      Mark Cambiano, for appellee.
   Darrell Hickman, Justice.

The primary question on appeal in this divorce case is the division of property which James Canady, the appellant, owned before the marriage. After hearing extensive testimony, the chancellor concluded that “the parties mixed their assets and obligations as well as their joint efforts to the extent that it becomes clear to this court that the parties are each equitable and joint owners of the other’s property.” Consequently, the chancellor ordered all real and personal property sold and the proceeds divided equally. We must reverse the decree as to the property division for reasons we explain.

One of the tracts of land ordered sold was 123 acres of land which James Canady received pursuant to his divorce from his first wife. The decree awarded the land to him and his two daughters as joint tenants with right of survivorship. The chancellor found, however, that Mr. and Mrs. Canady purchased that land. That was clearly wrong. Since his daughters were not parties to the divorce proceedings, their interests could not be ordered sold. See Cole v. Cole, 168 Ark. 381, 270 S.W.2d 593 (1925). Without the daughters’ consent, the only way to affect their interests would be by partition. See Ark. Stat. Ann. § 34-1801 (Supp. 1984). The ownership that Mr. Canady shared with his daughters was not only of the land but also that of a dairy operation, the buildings, equipment and cattle, all of which was ordered sold. Although it is sometimes possible in such cases to determine the party’s interest in jointly owned property and take that into consideration in dividing the property as was suggested in Riegler v. Riegler, 243 Ark. 113, 419 S.W.2d 311 (1967), there was no substantial evidence in this case from which the chancellor could make such a finding. The chancellor will have to determine the scope of the entire dairy operation and land and its value at the time of the marriage of the Canadys as well as its worth at the time of the divorce. We cannot make that determination from the record before us.

Another question concerns the ownership of a 101 acre tract. In 1973 James Canady inherited a one-sixth interest in the land with his brothers and sisters. He bought their interests in November, 1975, before he married Mrs. Canady. Mrs. Canady claims they used her money to make the purchase. The divorce decree recites that this land was purchased by both parties in Mr. Canady’s name. The chancellor’s findings ignore the fact that Mr. Canady had a prior interest in the land.

It is our judgment that the chancellor did not give due deference to the statutory requirements pertaining to property acquired by parties prior to marriage in dividing the real property. Ark. Stat. Ann. § 34-1214(A)(l) and (2) (Supp. 1984) provides:

All marital property shall be distributed one-half [¥2] to each party unless the court finds such a division to be inequitable, in which event the court shall make some other division that the court deems equitable taking into consideration (1) the length of the marriage; (2) age, health and station in life of the parties; (3) occupation of the parties; (4) amount and sources of income; (5) vocational skills; (6) employability; (7) estate, liabilities and needs of each party and opportunity of each for further acquisition of capital assets and income; (8) contribution of each party in acquisition, preservation or appreciation of marital property, including services as homemaker; and (9) the federal income tax consequences of the Court’s division of the property. When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties and such basis and reasons should be recited in the order entered in said matter.
All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subparagraph (A) above, in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage.

While the chancellor’s findings touched on some reasons for his decision and while the record may contain enough evidence to justify his order and equal division, except for the 123 acres and dairy, the statute is explicit regarding specific findings if there is any deviation from returning non-marital property to the original owner. The reasons given must be sufficiently specific. See eg. Davis v. Davis, 270 Ark. 180, 603 S.W.2d 900 (Ark. App. 1980); Glover v. Glover, 4 Ark. App. 27, 627 S.W.2d 30 (1982).

Both parties were previously married. James Canady and Connie Canady began living together in the spring of 1974 and were married December, 1976. James Canady was not divorced from his first wife until October of 1974. James Canady took some part in operating the dairy and was a long haul truck driver until 1979. Connie had considerable sums of money which she had inherited from her first husband and received from other sources. She operated the dairy and contributed substantially to their living expenses and the obtaining, maintenance, and development of the marital property. The chancellor found that Mrs. Canady contributed a total of $161,000. Our total of her contribution from the record is approximately $ 150,000. Her contribution to the marital property will have to be determined exactly or nearly so. Potter v. Potter, 280 Ark. 38, 655, S.W.2d 382 (1983).

We reverse and remand for a retrial of that part of the decree relating to the division of property.

Normally, we decide chancery cases de novo and do not remand them for retrial. However, on the record before us, we cannot fairly determine the interests of the parties. That division can only be made on the basis of specific findings as directed by Ark. Stat. Ann. § 34-1214. Sometimes where a case is extremely complicated and an accounting would consume an inordinate amount of the court’s time, a special master is appointed. See Petty v. Lewis, 285 Ark 3, 684 S.W.2d 250(1985).

James Canady also argues that the introduction of various documents relating to Connie Canady’s income was error since in some instances they could not be traced to James. We find that introduction of these documents was not an abuse of the court’s discretion since they were relevant to the issue of what funds Connie Canady had available to her to contribute to the marriage.

We agree with James Canady that the court erred in excluding testimony by H. C. Wallace that he deposited $12,000 in Canady’s account. The chancellor refused to admit the proffered testimony without physical documentation of the deposit. That is a misconception of the best evidence rule. Unif. R. Evid. 1002. When a transaction occurs where a written record is made, it is not necessary to produce the record where there is testimony to prove the transaction. It is only where the writing itself must be proved that the writing must be produced. 5 Weinstein’s Evidence Par. 1002 [03] (1984).

Reversed and remanded.


text:
    Jack ELLIOTTE v. Guy JOHNSON
    84-308
    687 S.W.2d 523
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985
    [Rehearing denied May 20, 1985.]

      Paul D. Groce, for appellant.

      Wallace if Hamner, by: Ralph Hamner, for appellee.
   Darrell Hickman, Justice.

Our decision in this case is controlled by Okla Homer Smith Mfg. Co. v. Larson & Wear, Inc., 278 Ark. 467, 646 S.W.2d 696 (1983), where we interpreted Ark. Stat. Ann. § 37-237 (Supp. 1983), which provides generally that suits based on property damage resulting from design or construction deficiency cannot be brought more than five years after the work is substantially completed.

Admittedly this case was brought eight years after Johnson Plaza Shopping Center was completed. The appellant rented space for a hobby shop in the center in 1973. The center was destroyed by fire in 1982. The appellant sued Guy Johnson, one of the partners in the shopping center who had contracted for the construction of the center and supervised the work. The complaint alleged that Johnson was negligent in installing an inferior quality of electrical wiring and in failing to construct fire walls. Appellant complained that as a result of appellee’s negligence, the fire, which started at one end of the center, spread to the appellant’s shop at the other end.

The appellant raises two arguments. The first is that this is a tort action rather than a contract action, and the statute of limitations imposed by Ark. Stat. Ann. § 37-237 does not apply. We expressly held in Okla Homer Smith Mfg. Co., v. Larson & Wear, Inc., supra, that this statute does apply when the allegation is one of negligence in construction or design. That is precisely the negligence alleged in this case. The other argument is that the statute does not apply to the owner of a building but only to the construction firm. The statute makes no such distinction, providing that “No action in contract . . . shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction. ...”

Affirmed.


text:
    T. R. ELLIS v. William Scott FEEMSTER
    85-6
    687 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered April 15, 1985

      Kathryn E. Laws, for appellant.

      Peter R. Darling, for appellee.
   Darrell Hickman, Justice.

This is a conversion suit. William Scott Feemster, a farmer from Howard County, sued T. R. Ellis, a Muskogee, Oklahoma, resident, for stealing 800 gallons of diesel fuel from his farm fuel tanks which are located south of Nashville, Arkansas. All the evidence was circumstantial; Ellis chose to put on no evidence. The trial judge, sitting as a jury, found that agents of Ellis had intentionally converted the 800 gallons of fuel and entered judgment for Feemster for the cost of the fuel and trebled damages for punishment. The only real issue on appeal is the sufficiency of the evidence, and we agree with the trial court that Feemster made a sufficient case.

The circumstances of the case are unusual. About 10 p.m. on the evening of April 9, 1980, Feemster and a companion were passing one of Feemster’s fields, where he had a fuel storage tank, when they noticed a pickup truck backed up to his fuel tank. They saw someone, perhaps two people, flee as they approached. They got out and found a 1979 GMC truck with the motor running. It was equipped with two fuel tanks, one rectangular and the other a saddle type tank like those used on semi-trailer trucks, various valves and hoses connecting the tanks, and an electric pump. A fuel line was running from one of the tanks into Feemster’s tank. A camper shell covered the equipment. Feemster turned the truck motor off, got the license number and called the sheriff.

The sheriff put out an alert in the neighborhood about the incident, but Feemster was unable to provide any substantial description of the person or persons who fled. The sheriff impounded the truck, ran a check on the vehicle, and found it to be registered to T. R. Ellis of Muskogee, Oklahoma. He also found an invoice in the vehicle issued to T. R. Ellis of Muskogee, Oklahoma. An Arkansas road map, marked in three places, was in the pickup. An area was circled which included the storage tanks of Feemster. Two other places were marked which turned out to be road intersections where large farming operations were conducted and where fuel storage tanks were located. The sheriff, a farmer himself, said he had never seen a farm truck with such equipment before. He said that ordinarily a farm truck in that locality had to have lug tires, not smooth tires, which this one had.

The sheriff testified that he checked and did not find that such a vehicle had been reported stolen. Ellis called him within a few days asking whether the sheriff had his pickup truck. The sheriff said he did have it, and he could come get it. In fact, he asked Ellis to come get it, but Ellis never came. Ellis told the sheriff that Frank Fields, an employee of Ellis, had reported the truck stolen at Texarkana from a truck stop on April 9. Fields drove for Ellis, who had several trucks used for hauling grain. The sheriff told Ellis he would like to talk to Fields, but Ellis said he did not know where he was. The sheriff called the Texarkana police and obtained a report made by one Frank Fields at 1:25 p.m. on the afternoon of April 9 that a GMC pickup had been stolen from a truck stop. Fields had reported that the pickup was left at the truck stop two days earlier with the keys in the ashtray. When he returned, it was gone.

Close in time to the incident, Joe Harding, a resident of Nashville, picked up a hitchhiker, who said he had been fishing. However, it was peculiar to Harding that he had scratches all over him. The man said he was going to Oklahoma. The sheriff testified that the description of this man matched the description of Frank Fields who had reported the vehicle stolen in Texarkana.

The judge specifically found that he did not believe the report of the stolen vehicle to be true. Further, he found that the pickup truck was specially rigged to convert fuel. Both findings of fact were conclusions which the judge could have made from the evidence presented.

After Feemster presented his proof, Ellis moved to dismiss. He argues that a verdict should have been directed in his favor at that point. On appeal from a denial of such a motion, we look at the evidence in the light most favorable to the non-moving party, and, if there is any substantial evidence, a question of fact was presented and the motion should have been denied. Nichols v. International Paper Co., 278 Ark. 226, 644 S.W.2d 583 (1983). We find that there was sufficient evidence to present a question for the trier of fact of whether Ellis’ agent had converted the fuel.

Once the judge concluded that the vehicle was indeed being used to convert fuel (it is undisputed that the pickup belonged to Ellis), and that Fields worked for Ellis, then the only missing link was whether Fields or an agent of Ellis used the vehicle that night. The judge chose not to believe Fields’ report to the police that the truck had been stolen. In view of all the circumstances of the case, we cannot say that the judge was wrong to draw the conclusion. Therefore, he could have believed that Fields had possession of the truck on April 9 and converted the fuel.

Ellis also argues that even if there was sufficient evidence that his agent stole the fuel, there was insufficient evidence that the agent was acting within the scope of his agency. Once the trial court determined that Ellis or his agent was responsible for the theft, it would only take a small step to find that in view of the truck’s equipment the agent was acting at Ellis’ direction.

It is argued that the finding that 800 gallons of fuel were stolen is error because that amount is beyond the capacity of the two tanks in the back of the pickup. The sheriff did testify that Feemster could not be sure of the capacity of the tanks. Feemster’s testimony was unrefuted, however, that he had filled the tank with 1000 gallons only a few weeks before, had used none, and that when he measured the tanks, he only found 200 gallons left. Once the judge determined the pickup’s mission, demonstrated by the roadmap and the equipment, he could have easily concluded that the missing fuel was taken by Ellis’ agent, perhaps in two different trips.

When a judge sits without a jury, we will not reverse his findings unless they are clearly erroneous. ARCP Rule 52. We find no such error.

Affirmed.

       This suit arose when T. R. Ellis and Sheriff Dick Wakefield for return of his pickup which was impounded after the conversion. Feemster intervened and cross-complained against Ellis for conversion. Upon agreement of the parties, Wakefield was dismissed as a party and the truck was released to Ellis in exchange for a replevin bond.