author: John I. Purtle, Justice. David Newbern, Justice, Steele Hays, Justice,

text:
    AMERICAN PIONEER LIFE INSURANCE COMPANY v. Samuel O. ROGERS, Individually, and Samuel O. Rogers, and Deborah K. Rogers, as Joint Guardians of Rachel L. Rogers, A Minor
    88-143
    753 S.W.2d 530
    Supreme Court of Arkansas
    Opinion delivered July 18, 1988
    [Rehearing denied September 12, 1988.]

      Davidson, Horne & Hollingsworth, A Professional Association, by: Allan W. Horne and Chet Roberts, for appellant.

      Riffel, King & Smith, by: V. James King, Jr., for appellee.
   John I. Purtle, Justice.

The appellant, American Pioneer Life Insurance Company, issued a major medical insurance policy to Samuel O. Rogers, the appellee, which policy covered the appellee and his dependents. Appellee’s daughter, Rachel R. Rogers, a minor, received severe personal injuries in an automobile accident. The appellant paid the medical expenses and now claims a right of subrogation to a portion of the proceeds recovered by the appellee from the third party tortfeasor. On appeal the appellant argues that the trial court erred in holding that the doctrine of equitable subrogation is dependent upon an express contractual provision. We conclude from the facts of this case that the trial court did not err.

On January 28, 1987, the appellee filed a claim under the major medical expense group health insurance policy on behalf of his daughter, Rachel Rogers. At the time the appellee made the claim for medical benefits, the appellant requested that the appellee execute and return to it a standard subrogation form. This form, if signed, would have acknowledged that the insured agreed that the subrogation rights of his insurance carrier entitled the carrier to collect from the proceeds of any recovery from a third party tortfeasor. The appellee refused to execute the subrogation agreement and denied that the company had any such right of recovery.

The appellant processed the claim and paid medical care and related expenses totaling $68,341.27. State Farm Insurance Company, carrier for the third party tortfeasor, paid the sum of $250,000 into the registry of the Randolph County Probate Court. The court disbursed most of the money but ordered $96,650 held by the probate court pending determination of the subrogation rights of the appellant.

The appellant filed a complaint asserting its right to subrogation for the medical expenses which it had paid. The matter was submitted to the trial court on pleadings, briefs and stipulation of facts. On December 9, 1987, the court denied the appellant’s claim for subrogation on grounds that the policy of insurance did not expressly provide for subrogation.

The question presented to this court is whether the doctrine of equitable subrogation in personal injury cases is dependent upon express contractual provisions. In its claim to collect the medical benefits paid, the appellant contends that, by operation of law, it is subrogated to its share of the funds paid by State Farm on behalf of the third party tortfeasor. We have reviewed all of the cases cited, and others, and have not found a case precisely on point. Therefore, it is necessary to examine this argument in detail.

The appellant first relies upon the case of Home Insurance Co. v. Lack, 196 Ark. 888, 120 S.W.2d 355 (1938). The opinion in that case stated: “The only question to be determined is whether the insurance company was a proper party to the suit.” The insurance company and its insured had joined the party plaintiffs against a third party tortfeasor to recover for damage to the insured vehicle. On demurrer the trial court struck the insurance company’s name from the complaint because it was not a proper party to the suit. This court reversed and simply held that even though the insurance company was claiming subrogation, it was a proper party plaintiff and should have been allowed to proceed with the trial.

The second case relied upon by appellant is Baker, Adm’r v. Leigh, 238 Ark. 918, 385 S.W.2d 790 (1965). This suit involved a real estate transaction between two persons, Mr. Baker and Mr. Leigh. Mr. Baker died and Mr. Leigh paid out money to settle a trusteeship which had been previously created between the men. Leigh filed suit to recover by way of subrogation for the settlement he had made on behalf of the trusteeship. The defendants in that case pleaded the Dead Man’s Statute as a defense to Leigh’s claim. There was no dispute that Leigh had paid money for the protection of the interest of Mr. Baker, Sr. and his estate. In permitting Leigh to perfect a lien on Baker’s interest in the land, the court relied upon the doctrine of equitable subrogation. The doctrine was declared to be for the purpose of doing complete and perfect justice between the parties without regard to form. The Baker opinion held that “where it is equitable that a person, not a mere stranger, intermeddler, or volunteer, furnishing money to pay a debt, should be substituted for or in place of the creditor, such person will be so substituted.” The court, relying on Pomeroy, Equity Juris., vol. 3, § 1212, stated:

In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor, primarily and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity ....

The appellant also relies on Shipley v. Northwest Mutual, 244 Ark. 1159, 428 S.W.2d 268 (1968). This case also concerned the right of subrogation in an insurance policy. Shipley is distinguishable from the present case in that there was an express right of subrogation in the policy of insurance. Likewise, the case of Martin v. Lavender Radio & Supply Inc., 228 Ark. 85, 305 S.W.2d 845 (1957), is inapplicable because it involved the statutory right of subrogation by a workers’ compensation carrier against a third party tortfeasor who had caused a loss for which the workers’ compensation carrier had paid benefits.

The appellant also relies to some extent on Southern Cotton Oil Company v. Napoleon Hill Cotton Company, 108 Ark. 555, 158 S.W. 1082 (1913). This case involved the priority of liens or mortgages. After executing two mortgages a judgment was rendered against the landowner on a separate matter. The landowner obtained a third loan to pay off the other two mortgages. The borrower never told the last lender about the judgment lien. The Southern Cotton Oil Co. decision turned on the fact that both the lender and the borrower intended the new debt to become a first mortgage upon application of the proceeds to extinguish the prior debts.

The final case relied upon by the appellant is Cooper v. Home Owners’ Loan Corp., 197 Ark. 839, 126 S.W.2d 112 (1939). The Coopers purchased a lot as tenants by the entirety and executed a purchase money mortgage and note for the unpaid balance. Mrs. Cooper was committed to the state hospital in 1933. In 1934 Mr. Cooper secured a loan to refinance the indebtedness. If the wife executed the deed, it was not effective because she had been adjudged incompetent. Mr. Cooper subsequently remortgaged the same property, and the second lender foreclosed after default. The only question before the court was whether the second lender was subrogated to the rights granted in the first mortgage which had been paid off with the proceeds of the second loan. This court invoked the doctrine of equitable subrogation to substitute the priority of the first lienholder to that of the second lienholder.

All of the Arkansas cases reviewed relate to persons or parties having a subsequent interest or who are bound to pay a debt or remove an incumbrance. The doctrine of equitable subrogation is based upon a secondary obligation contingent upon the performance of another party. The doctrine has not been applied except in property interest cases and when the parties have expressly so agreed. Therefore, we examine the question as treated in other jurisdictions.

We find the case of Frost v. Porter Leasing Corp., 436 N.E.2d 387 (Mass. 1982), to be persuasive. Frost was injured in a motor vehicle accident. He carried group health and accident insurance, the premium having been paid by his employer. His health insurance carrier paid $26,566.04 in medical expenses. Frost and his wife filed suit against the third party tortfeasor claiming damages for, among other things, past and future medical expenses. The medical carrier intervened, asserting a right of subrogation for any proceeds collected by Frost up to the amount of the payments made under the health insurance policy. The Frosts eventually entered into a settlement with the third party for $250,000.

The trial judge held that the insurance carrier was entitled to subrogation of the amounts it had paid to Frost. The costs of collection incurred by Frost were deducted by the trial court. A direct appeal was granted in order to settle the issue of the medical carrier’s right of subrogation.

After an extensive review of cases and authorities, the Massachusetts Supreme Judicial Court stated:

[The question is] “whether a group insurer which provides medical and hospital expenses benefits to an insured has a right of subrogation to a recovery by the insured against a tortfeasor for personal injuries even though the group insurance policy contains no express provision entitling the insurer to subrogation rights.” We conclude that the insurer has no right, in the absence of a subrogation clause, to share in the insured’s recovery against the tortfeasor.

The Frost case recognized that equitable subrogation is concerned with the adjustment of rights when a party is entitled to recovery from more than one source, one of which bears a primary legal responsibility. In such case, if the secondary source pays the obligation it succeeds to the rights of the party it has paid against the primarily responsible party. Equitable subrogation is also used to prevent a windfall to an insured. Frost held that subrogation may arise as a matter of general law. However, it excepted medical payment insurance policies from the doctrine, unless there is a subrogation clause in the insurance contract.

Courts have readily implied rights of equitable subrogation in cases concerning property and policies of insurance covering property damage. Home Insurance Co. v. Lack, supra; Cooper v. Home Owners’ Loan Corp., supra; Travelers Insurance Co. v. Graye, 263 N.E.2d 442 (Mass. 1970); and Frost v. Porter Leasing Corp., supra.

However, recovery for medical insurance benefits and tort damages does not necessarily produce a windfall or duplicative recovery. Most always when there is tort recovery the consideration for payment by the tortfeasor includes loss of wages, loss of earning capacity, pain and suffering, permanent or temporary physical impairment, medical expenses, property damages and intangible losses which are not susceptible to exact measurement. The principles which cause us to recognize equitable subrogation in property disputes are not present in the field of medical expense payments for personal injuries. Moreover, in the case before us the record does not reveal whether any of the proceeds paid by the third party tortfeasor’s liability insurance carrier was for reimbursement of past medical expenses.

Therefore, we conclude that in the absence of a specific subrogation clause in the insurance contract, a medical expense insurance carrier has no right to share in the proceeds of a settlement or recovery by the insured from a third party tortfeasor.

Affirmed.

Holt, C.J., and Dudley and Newbern, JJ., concur.

Hays, J., dissents.

David Newbern, Justice,

concurring. I agree this case must be affirmed because we cannot tell if the money received by the injured party from State Farm Insurance, carrier for the third-party tortfeasor, represents a payment for medical expenses. From the record we know only that State Farm paid $250,000 in settlement. This figure could be the limits of the policy, for permanent disability, disfigurement, or for any other element of damages, and is not necessarily compensation for medical expenses. We cannot tell whether the party seeking subrogation has paid the obligation which would be the subject of the subrogation claim.

I disagree with the majority opinion’s conclusion that satisfaction of a personal injury claim is not the sort of payment for which subrogation may be sought. In Trinity Universal Ins. Co. v. State Farm Mutual Auto Ins. Co., 246 Ark. 1021, 441 S.W.2d 95 (1969), we allowed an action by an insurance company against another insurance company for contribution in a wrongful death case arising from an automobile accident. In that case the only basis of the plaintiff company’s claim was equitable subrogation.

An insurer which pays a claim against an insured for damages caused by the default or wrongdoing of a third party is entitled to be subrogated to the insured’s rights against such third party, irrespective of the nature of the contract. And it has been held that this result obtains even though the policy contains no stipulations to that effect. But it has been stated that though subrogation clauses within policies are generally enforceable, the common-law concepts of subrogation cannot be employed to create rights of subrogation where a policy provides otherwise. An insurer claiming subrogation rights was entitled to recover from the third person only those claims which it had satisfied. [Footnotes omitted].

The distinction drawn in the majority opinion between the kinds of injuries compensated in personal injury cases and the kind of injuries compensated in property damage or conveyance cases escapes me in the context of subrogation.

Holt, C.J., and Dudley, J., join in this concurrence.

Steele Hays, Justice,

dissenting. The question is whether an insurer’s subrogation claim for insurance benefits paid to an insured under a major medical policy is enforceable where the policy fails to expressly provide for subrogation. We have addressed the issue of equitable subrogation in a number of cases and recognized the doctrine. Trinity Universal Ins. Co. v. State Farm Mutual Auto Ins. Co., 246 Ark. 1021, 441 S.W.2d 95 (1969); Shipley v. Northwestern Mutual Ins. Co., 244 Ark. 1159, 428 S.W.2d 268 (1968); Baker v. Leigh, 238 Ark. 918, 385 S.W.2d 790 (1965); Cooper v. Home Owners Loan Corporation, 197 Ark. 839, 126 S.W.2d 112 (1939). “Perhaps no doctrine of equity jurisprudence is more beneficent in its operation, and perhaps none stands in higher favor.” 73 Am. Jur. 2d Subrogation § 7, p. 603.

The majority prefers a Massachusetts case, Frost v. Porter Leasing Corp., 386 Mass. 425, 436 N.E.2d 387 (1982), to our own precedents. I respectfully disagree.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Jodine CARTER, Individually and as Executrix of the Estate of J.C. Carter, Deceased v. Eddie BUSH, Earnest Collard, and Commercial & Union Assurance Co., Shelter Mutual Insurance Co., Southern Farm Bureau Casualty Insurance Co., and State Farm Mutual Automobile Insurance Co.
    88-57
    753 S.W.2d 534
    Supreme Court of Arkansas
    Opinion delivered July 18, 1988

      Daggett, Van Dover, Donovan & Cahoon, by: Robert J. Donovan, for appellant.

      Chester C. Lowe, Jr., for appellee Commercial Union Assurance Company.

      Huckabay, Munson, Rowlett & Tilley, P.A., by: Beverly A. Rowlett, for appellee State Farm Mutual Automobile Insurance Company.

      Matthews, Sanders, Liles & Sayes, by: Marci Talbot Liles, for appellee Shelter Insurance Company.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Ralph R. Wilson, for appellee Southern Farm Bureau Casualty Insurance Company.
   Steele Hays, Justice.

This is a second appeal, giving this court jurisdiction under Rule 29(1)0). In the first appeal we reversed a ruling by the trial court that state employees are entirely immune from suit for negligence when acting in the performance of their official duties. We held that state employees are not immune from suit to the extent they may be covered by liability insurance, recognizing, however, that they were absolutely immune from individual liability. See Carter v. Bush, 283 Ark. 16, 677 S.W.2d 847 (1984). We remanded the case for further proceedings.

The facts are not disputed. Eddie Bush and Ernest Collard are officers of the Arkansas Highway Police. On the night of October 1, 1981, the officers were using a state patrol car equipped with blue strobe lights to inspect trucks on State Highway No. 1 near DeWitt to see that vehicle weights and permits were lawful. Corporal Bush, the senior officer, was in charge. At around 11:00 p.m. they had stopped a Riceland truck in the north bound lane and were weighing it with portable scales. The patrol car was also headed north and was stopped in the north bound lane some 65-70 feet behind the Riceland truck with its blue lights flashing. The truck lights were on and its four-way emergency lights were flashing.

The use of portable scales required a series of movements by the Riceland truck to enable its five axles to be weighed separately. One of the axles required additional inspection and Corporal Bush asked the driver to pull over as far as possible onto the three foot shoulder. As the Riceland driver began to do so, a Southern Rice Marketing truck approached from the north and at a considerable distance away, perhaps a quarter of a mile, turned on its four-way emergency lights and began stopping, coming to a halt in the lane opposite the Riceland truck. Thus, both lanes of the highway were blocked. Officer Collard testified the Southern Rice truck stopped on its own, not because he flagged it to stop. He began to examine the papers of the Southern Rice truck and at that point heard a loud noise at the rear of the Southern Rice truck. On investigating, the officers found that J.C. Carter, driving south, had collided with the rear of the Southern Rice truck, sustaining injuries from which he later expired. Both officers testified to a strong odor of beer and to the presence of several empty cans of beer in the Carter vehicle.

Mrs. Jodine Carter, widow of J. C. Carter, brought wrongful death claims against Officers Bush and Collard to the extent of coverage under policies which Bush and Collard had in force on their own personal automobiles. Alternatively, Mrs. Carter asked for the uninsured motorist proceeds under J.C. Carter’s policy with Commercial Union Insurance Company. The trial court dismissed the action as to Bush and Collard pursuant to Ark. Code Ann. § 19-10-305 (1987) [Ark. Stat. Ann. § 13-1420 (Supp. 1985)], which bars suits against employees of state government acting in their official capacity. On the first appeal, we saw the issue as being simply whether or not an action can be maintained against state employees covered under policies of liability insurance and, as mentioned, we answered in the affirmative.

While the case was pending in the trial court after remand, Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986), was decided. Mrs. Carter interpreted Beaulieu as holding that her cause of action could no longer proceed against Bush and Collard individually, so she moved to join their insurance carriers, Shelter Insurance Company and State Farm Mutual Insurance Company, asking for a declaratory judgment to determine whether the Shelter and State Farm policies provided protection under the circumstances of the case. Shelter and State Farm were brought into the law suit and they joined Southern Farm Bureau, Rice Marketing’s carrier, by third party complaint.

Sitting as a jury, the trial court found that Bush and Collard were individually immune and that neither Shelter nor State Farm provided any liability coverage for the occurrence described in the complaint, that Mrs. Carter could not maintain a direct action against either carrier, and that the uninsured motorist coverage did not apply in this situation. The trial court dismissed the cause against all defendants and Mrs. Carter has appealed, alleging several points of error. We affirm.

I

The Trial Court Erred By Holding As A Matter Of Law That Neither Of The Liability Insurance Policies Provided Any Liability Coverage For The Occurrence Described In The Plaintiffs Complaint.

At the close of the testimony counsel for all parties were asked to submit briefs and the trial judge took the case under advisement. He later announced his decision and directed Shelter’s attorney to submit a precedent to opposing counsel, who were given five days to object. The judgment as entered includes a finding that “neither of these insurance policies provide any liability coverage for the occurrence described in the plaintiffs complaint.”

Appellant urges that the words “the occurrence described in the plaintiffs complaint” permit only one conclusion — that the trial court made no finding of fact on this issue, but concluded as a matter of law that neither of the automobile insurance policies provided liability coverage to Bush and Collard.

We find nothing which sustains this contention and appellant points only to the bare wording of the judgment to sustain her argument. Nothing in the record, including the briefs to the trial judge, suggests that he intended to rule as a matter of law there was no coverage. We are not persuaded that because the judgment uses an abbreviated description of the facts pertinent to the coverage issue by referring simply to “the occurrence described in the plaintiffs complaint,” thereby avoiding a more detailed recitation, it can be assumed the trial judge was ruling as a matter of law. Any uncertainty as to whether the judge was making a finding of fact or a conclusion of law could have been easily resolved by timely objection before the precedent was approved. If any question was raised by the appellant it is not in the record.

We conclude that the trial court did not hold as a matter of law that Officers Bush and Collard had no coverage under their policies, rather, on the facts of the case, he found there was no coverage. That finding was not clearly against the preponderance of the evidence, as the personal vehicles of Messrs. Bush and Collard were in no way involved in the incident.

The patrol car is not that easily disposed of, however, as Bush’s coverage under the Shelter policy defined an automobile under the policy as including “any other motor vehicle used on the public highways operated by the insured in the performance of his duties as state highway patrolman or employee of a state highway patrol or similar agency of any state.” Appellant insists that since the patrol car was being used to stop vehicles to determine weight and permit compliance, coverage should be found applicable under the Shelter policy. However, while it is clear the patrol car was used to stop the Riceland truck by flashing its blue strobe lights, there is no evidence that it was that instrumentality that operated to stop the Southern Rice truck. Officer Collard testified that the truck stopped on its own. Furthermore, the particular facts in this case would support a finding that any use of the patrol car was no more than an antecedent use, distinct from the harm which thereafter arose. See 12 Couch on Insurance 2d § 45:57 (rev. ed. 1981). We cannot say, therefore, that the finding of the trial court that the collision did not arise out of the use of the patrol car was clearly against the preponderance of the evidence. ARCP Rule 52.

For the reasons just discussed, that the injury did not arise out of the use of the patrol car, it follows there was no coverage under the deceased’s uninsured motorist coverage with Commercial, whose policy language was essentially the same as that in the Shelter policy.

Collard’s coverage with State Farm had no specific coverage of the patrol car as did Bush’s policy, but appellants point out that the State Farm policy covers “non-owned car,” provided they are not owned by the insured or furnished or available for Collard’s regular or frequent use. While it might well be assumed the patrol car was available for Collard’s regular or frequent use, the record is altogether silent on that score. Appellant submits that State Farm has the burden of proof, so that a silent record inures to her benefit since an exclusion must be affirmatively pled by the insurer. But the “regular or frequent use” requirement is not an exclusion. Rather, it is a part of the clause defining coverage and State Farm’s denial of Mrs. Carter’s allegation of coverage places the burden on her. Southern Farm Bureau Casualty Insurance Co. v. Fields, 262 Ark. 144, 553 S.W.2d 278 (1977); People Protective Life Ins. v. Smith, 257 Ark. 76, 514 S.W.2d 400 (1974).

II

The Trial Court Erred In Holding As A Matter Of Law That The Plaintiff Cannot Maintain A Direct Action Against Either Of The Liability Insurance Companies Under Ark. Code Ann. § 23-79-210 (1987).

As we have noted, in the original Carter v. Bush decision we held that an employee of the state is not immune from suit under § 23-79-210 (1987) to the extent that his or her acts are covered by liability insurance. That statute reads in part:

Officers and employees of the State of Arkansas are immune from civil liability for acts or omissions, other than malicious acts or omissions, occurring within the course and scope of their employment.

In Beaulieu v. Gray, supra, we qualified the holding in Carter by stating that this statute is a grant of immunity, expressing disapproval of language in the Carter v. Bush opinion indicating that the statute is not a grant of immunity. The Beaulieu decision prompted the appellant to take the position that under Beaulieu an insurance carrier becomes the real party in interest and must be named defendant in accordance with our direct action statute, Ark. Code Ann. § 23-79-210 (1987).

Appellant misconstrues our holding in Beaulieu. It was not intended to enable a claimant to sue the carrier directly, nor to alter our holding in Carter. This was made clear by our decision in Bly v. Young, 293 Ark. 36, 732 S.W.2d 157 (1987). Carter and Beaulieu are distinguishable, as Bly points out, in that in Beaulieu, unlike Carter, there was no allegation that the defendants were covered by liability insurance. Additionally, Beaulieu was in reality a suit against the state. Our direct action statute is limited to the insurance carriers of cooperative non-profit organizations, municipalities, agencies or subdivisions of municipalities or of the state, improvement districts, school districts or other organization of any kind or character not subject to suit in tort. The statute makes no mention of individuals. See Savage v. Spicer, 235 Ark. 946, 362 S.W.2d 668 (1962); Lacey v. Bekaert Steel Wire Corp., 619 F. Supp. 1234 (W.D. Ark. 1985).

The trial court noted, correctly, that while Bush and Collard are immune from tort liability as state employees, it is a qualified -immunity and suit can be maintained against an employee to the extent the employee is protected by insurance. There is no occasion, therefore, for a direct action against the carrier.

Ill

The Supreme Court’s Original Decision In This Case Is The Law Of The Case And Should Have Been Followed By The Trial Court Notwithstanding Subsequent Decisions.

Appellant’s final point is that the court erred by not following the law of the case as established in the first appeal of Carter v. Bush.

Appellant cites us generally to a number of our decisions announcing the familiar doctrine that earlier rulings which have been affirmed or become final are res judicata and as such comprise the law of the case. See Wilson v. Rodgers, 256 Ark. 276, 507 S.W.2d 508 (1974); International Harvester Co. v. Burks Motors, Inc., 252 Ark. 186, 481 S.W.2d 351 (1972); Miller Lumber Co. v. Floyd, 169 Ark. 473, 275 S.W. 741 (1925).

Appellant does not explain how the trial court failed to apply the law of the case and we are unable to discern that on our own. In Carter I we reversed the trial court’s dismissal of the action as against Bush and Collard, holding that to the extent their alleged negligence was covered by liability insurance, they could be sued, though they were immune from any individual liability for their acts performed in the scope of their employment. Beaulieu v. Gray, supra, clarified our holding in Carter, as discussed earlier, and Bly v. Young, supra, reconciled and affirmed the holdings of both cases. In Carter, we made no attempt to determine whether the conduct of Bush and Collard was such that coverage under their policies was afforded. In fact, the opinion specifically provides:

We do not decide in this opinion whether or not the appellees [Bush and Collard] were in fact negligent or whether their insurance policies would cover this situation if they were negligent. We are merely deciding whether or not the appellant can maintain an action against the appellees. We hold that she can. (At p. 283.)

For reasons stated, the judgment is

AFFIRMED.

Glaze, J., not participating.


author: David Newbern, Justice. Tom Glaze, Justice,

text:
    ALUMINUM COMPANY OF AMERICA v. Brad J. GUTHRIE
    88-42
    753 S.W.2d 538
    Supreme Court of Arkansas
    Opinion delivered July 18, 1988

      Rose Law Firm, A Professional Association, by: Phillip Carroll, for appellant.

      Boswell, Tucker & Brewster, by: Ted Boswell, for appellee.
   David Newbern, Justice.

This is a personal injury case in which the appellee, Brad J. Guthrie, was awarded a judgment of $450,000 against the appellant, Aluminum Company of America. Guthrie contended he was severely injured when he fell from a bridge owned by Alcoa. Alcoa contends its motion for directed verdict should have been granted because the evidence showed Guthrie to have been a trespasser, or at most a licensee, of whose presence it was unaware and to whom it owed no duty of care. We must reverse the judgment because the court refused to give the standard instructions on the duty owed to a person who comes on another’s land as an invitee, licensee, or trespasser. Instead, the court erroneously gave AMI 1109 which deals with failure to maintain a structure on one’s own land so that it will do no injury on the land of another. Given the court’s misapprehension as to the law applicable in the case, we decline Alcoa’s invitation to hold a directed verdict should have been granted on the ground that the jury could not have found Guthrie to be other than a trespasser. For purposes of retrial, we will deal with two evidentiary issues. First, we conclude it was not an abuse of the judge’s discretion to refuse to admit evidence of an earlier trespass allegedly committed by Guthrie. Second, the court should not have allowed evidence that Alcoa had erected fencing to prohibit pedestrian entry onto a bridge similar to the one involved here.

Guthrie and two friends went to Lost Lake after dark. One friend got in the water to swim, but the other friend summoned her back to the bank and told her Guthrie had left and they should look for him. The three had been drinking, but the amount, and whether Guthrie was drunk when the accident occurred is disputed. The two friends searched the area briefly and then left in their car. They found Guthrie on the pavement of a highway directly beneath the bridge owned by Alcoa. Others had noticed him lying there, and had summoned medical aid.

Guthrie sustained injuries to his spine requiring surgery and a long rehabilitation period. He had no memory of the incident. No one saw him immediately before it happened. Some witnesses who stopped at the scene testified they concluded he had fallen from the bridge. When he was found, he was directly below an opening where grates were missing from the bridge structure. Guthrie’s theory is that he was walking along the bridge in the darkness and fell some twenty feet to the pavement below because he was unable to see that the grates were missing. The bridge was formerly a railroad bridge. The tracks had been removed, and Alcoa used it to support a water line connecting its property on either side of the bridge. The grates, some of which were missing, formed a sort of walkway beside the place where the tracks had been.

There was evidence that Lost Lake is about 4,000 feet from the bridge, and on the other side of the bridge there is a ball playing field. Although an Alcoa security officer testified he had not been notified of persons using the bridge, there was evidence from which the jury could have concluded that it had been used frequently by members of the public as a walkway or as a place where children loitered. Although there were some “no trespassing” signs on Alcoa land in the vicinity of the bridge, there was no sign at the bridge, and there was no chain, fence, or other impediment to entrance upon it by a pedestrian.

At the conclusion of the trial, Alcoa renewed the directed verdict motion it had made at the end of Guthrie’s case in chief, arguing that there was no evidence to show how the accident had happened and that in any event Guthrie was clearly a trespasser to whom no duty was owed by Alcoa. Alcoa also objected to the giving of AMI 1109, which had been requested by Guthrie, on the ground that it was inapplicable. The court denied the motion for directed verdict, refused Alcoa’s tendered instructions on the law of invitee, licensee, or trespasser, and gave AMI 1109.

1. AMI 1109

It was error for the court to instruct the jury in accordance with Arkansas Model Jury Instruction 1109 which reads as follows:

DUTY OWED BY OWNER OR OCCUPIER OF LAND — INJURIES OR DAMAGES OFF PREMISES

It is the duty of an [owner] [occupier] of land to protect [persons] [and] [property] from damages resulting from [a structure] [an artificial condition] upon his land if
(A) he knows, or should know, of an unreasonable danger created by that [structure] [condition] and
[(B) he knows, or should know, that the danger exists without the consent of those affected by it, and]
(C) he fails, after having a reasonable opportunity, to eliminate the danger or otherwise to protect such [persons] [or] [property] against it.
A violation of this duty is negligence.

By ignoring the title accompanying the instruction, one might conclude, as the trial court apparently did, that the instruction fit the situation of this case. However, reference to the cases cited in the comment accompanying AMI 1109 should have made it clear that it should be used only when a dangerous structure or artificial condition on the defendant’s land causes injury on the land of another. See Tri-B Advertising Co. v. Thomas, 278 Ark. 58, 643 S.W.2d 547 (1982); Dye v. Burdick, 262 Ark. 124, 553 S.W.2d 833 (1977). The comment also cites Restatement (Second) of Torts § 366 (1965), which leads to the same conclusion.

Guthrie argues that the injury was caused by Alcoa’s failure to maintain the structure on its land, but that the injury occurred on highway 183, and thus the instruction fits because the injury occurred “off premises” as the model instruction’s title suggests. That argument ignores the thrust of the model instruction which is that a landowner must exercise reasonable care for the protection of those outside his premises. More importantly, it ignores the time-honored classifications with respect to the duty owed by a landowner to persons who enter his property. We recently reaffirmed our adherence to that law in Baldwin v. Mosley, 295 Ark. 285, 748 S.W.2d 146 (1988), where we were asked to abolish the invitee, licensee, and trespasser distinctions in favor of a general reasonable care standard.

2. Directed verdict

Given the trial court’s misapprehension as to the law applicable in this case, we decline to hold that a verdict should have been directed in favor of Alcoa. Alcoa contends that Guthrie should not be given “another swing of the bat,” citing cases in which we have examined evidence of record and concluded on appeal that a party was a trespasser to whom no duty of care was owed by the owner of land on which the injury occurred. No authority is cited, however, supporting the view that, where the court instructed the jury on an inapplicable theory of liability, we should examine the evidence with the correct theory in mind and not remand for a new trial if a jury could not have found for the plaintiff using the correct theory. We think in fairness we should remand, rather then dismiss, to allow the parties and the court to develop the case with the correct theory in mind. See Kansas City Southern Ry. Co. v. Shane, 225 Ark. 80, 279 S.W.2d 284 (1955).

As we do not know how the evidence will develop upon retrial, we decline to discuss the issue in detail, see Missouri Pac. R.R. Co. v. Arkansas Sheriffs Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983); however, we note there was some evidence from which it might have been concluded that Guthrie was an implied invitee. See Missouri Pac. R.R. Co. v. English, 187 Ark. 557, 61 S.W.2d 445 (1933). See also St. Louis I.M. & S. Ry. Co. v. Dooley, 77 Ark. 561, 92 S.W. 789 (1906). Cf. Chicago R.I. & P. Ry. Co. v. Harrison, 204 Ark. 361, 162 S.W.2d 62 (1942); Chicago R.I. & P. Ry. Co. v. Payne, 103 Ark. 226, 146 S.W. 487 (1912). Again, we take no position on the point but commend the issue for development upon retrial.

3. Other trespass evidence

Alcoa was prevented, by the granting of a motion in limine, from introducing evidence that Guthrie had trespassed on land owned by the Reynolds Aluminum Company fifteen days before the accident. The judge did not abuse his discretion by excluding that evidence. A.R.E. 403.

4. Photographs

Guthrie was allowed to introduce photographs showing that Alcoa had, prior to the accident, barricaded a bridge similar to the one involved here. Alcoa objected on the ground that the evidence was irrelevant and highly prejudicial. Alcoa’s counsel stated that the fencing on the other bridge had been erected because that bridge had been struck by a logging truck and thus had become unstable. The objection was overruled.

We agree that the evidence was irrelevant and prejudicial and should not have been admitted. Alcoa did not contend that it could not have fenced the bridge involved in this case; it contended it was not required to do so. A.R.E. 401 and A.R.E. 403. See also Foster v. Ford Motor Co., 621 F.2d 715 (5th Cir. 1980).

Reversed and remanded.

Hickman and Glaze, JJ., concur.

Tom Glaze, Justice,

concurring. I agree with the majority that Arkansas Model Instruction 1109 is not applicable to the facts in this case. In reversing, the majority also is correct in remanding the cause for a new trial since our rule in reversing a law case is to remand the case for a new trial unless there be an affirmative showing that there can be no recovery. K.C. Southern Ry. Co. v. Shane, 225 Ark. 80, 279 S.W.2d 284 (1955). No such affirmative showing has been made.

As the majority points out, we are unable to know how the evidence will develop upon retrial, and it takes exception with the appellant’s argument that the appellee could not be shown as an implied invitee. While I agree the facts might fall short of proving appellant is an implied invitee, the appellee is not limited to that rule. For example, although the general rule is that an owner of property owes no duty to a trespasser, an exception is found in AMI Civil 2d, 1106(B) which, in relevant part, provides as follows:

... he (the owner) owes a trespasser no duty until his presence on the premises is known or reasonably should be known. Then the owner owes the trespasser only a duty not to cause injury by willful or wanton conduct. If however, the owner knows or reasonably should know that a trespasser is in a position of danger, he has a duty to use ordinary care to avoid injury to the trespasser. (Emphasis added.)

To date, this court has had little to say about paragraph B of AMI 1106, but in Tatum v. Rester, 242 Ark. 271, 412 S.W.2d 293 (1967), we refused to pass upon its accuracy except to point out that it should not be given when there is no relationship between the plaintiffs cause of action and the conditions of the premises. The court further cautioned that it would not speculate upon whether or not a fact situation might arise which would justify the trial court in giving paragraph B. Id.

Thus, while AMI 1106(B) presently appears elusive in meaning and application, I cannot presume that 1106(B) would have no application on retrial. Also, another exception to the general rule concerning an owner’s duty to trespassers is set out in the Restatement (Second) of Torts § 335 (1965); see also W. Prosser & W. Keeton, The Law of Torts § 58 (1984), for a discussion of the landowner’s liability to a trespassing adult. In sum, appellant has not affirmatively shown (as it must) that the law and the facts in this cause preclude the appellee from any recovery. Accordingly, this court is obliged to remand this matter for retrial.

Hickman, J., joins in this concurrence.

       § 3 3 5 Artificial Conditions Highly Dangerous to Constant Trespassers on Limited Area
      A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area of the land, is subject to liability for bodily harm caused to them by an artificial condition on the land, if
      (a) the condition
      (i) is one which the possessor has created or maintains and
      (ii) is, to his knowledge, likely to cause death or seriously bodily harm to such trespassers and
      (iii) is of such a nature that he has reason to believe that such trespassers will not discover it, and
      (b) the possessor has failed to exercise reasonable care to warn such trespassers of the condition and the risk involved.


author: Tom Glaze, Justice. David Newbern, Justice, Darrell Hickman, Justice, Steele Hays, Justice,

text:
    Millard CUMMINGS v. Earnest FINGERS, Sr., and Oleitt Fingers
    88-92
    753 S.W.2d 865
    Supreme Court of Arkansas
    Opinion delivered July 18, 1988

      Lohnes T. Tiner, for appellant.

      John D. Bridgeforth, P.A., for appellee.
   Tom Glaze, Justice.

This case involves a farm lease which resulted in the appellees, as lessors, obtaining a default judgment in circuit court against appellant, lessee, for past due rental payments in the amount of $5,250.00. After learning the Agriculture Stabilization and Conservation Service (ASCS) was holding deficiency and disaster funds payable to appellant in the sum of $ 10,000.00, appellees filed a writ of garnishment against ASCS’s local office in an effort to obtain satisfaction of their judgment against the appellant. When ASCS ignored the garnishment proceeding, appellees then petitioned the court to compel the appellant to obtain the funds from ASCS and to place them with the registry of the court, so the court could determine the parties’ respective rights to the funds. Appellant objected, contending that the court had no jurisdiction and that the funds were exempt under federal law. The court agreed the ASCS was not subject to the court’s orders and dismissed appellees’ writ of garnishment proceeding; however, the judge held the court did have inherent power, including contempt powers, to direct the appellant to deposit the funds, equal to the amount of the judgment, in its registry. After paying those funds into the court, appellant brought this appeal.

Citing 15 U.S.C.A. § 714b(c) (West Supp. 1988), appellant’s primary argument is that neither ASCS nor its property is subject to attachment, injunction, garnishment or similar process and that the trial court’s order here was merely a “left-handed” or indirect attempt at a process which is prohibited by federal law. Appellant compares the situation here to the one in Bennett v. Arkansas, — U.S —, 108 S. Ct. 1204 (1988). The Supreme Court in Bennett held that Arkansas’s attachment of a prisoner’s social security benefits under state law was in direct conflict with the social security statute, 42 U.S.C. § 407(a) (Supp. Ill 1982), which provides that “none of the moneys paid or payable under the Social Security Act shall be subject to execution, levy, attachment, garnishment, or other legal process.”

The Bennett case is clearly dissimilar to the one before us. There, the Social Security Act specifically exempted “moneys paid or payable” under the Act and as the Supreme Court said, “section 407(a) unambiguously rules out any attempt to attach social security benefits.” Cf. 38 U.S.C. § 3101 (a) (which provides that a beneficiary, of payments of [veteran] benefits due or to become due, shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary); see also Rose v. Rose, 481 U.S. _, 107 S. Ct. 2029 (1987).

In the present case, the federal statute in question, 15 U.S.C. § 714b(c), merely codifies ASCS’s right to sovereign immunity — a right the trial court acknowledged when it dismissed appellees’ garnishment action against ASCS. In sum, unlike the federal laws that specifically exempt veteran and social security benefits from attachment or other similar process, the federal statute applicable here provides that the Community Credit Corporation (ASCS) and its property are not subject to attachment proceedings, but that law does not exempt funds from attachment that are paid to the recipient. See Graves Bros. v. Lasley, 190 Ark. 251, 78 S.W.2d 810 (1935). In Graves Bros., a lease was breached by a tenant who was owed federal funds in return for the tenant having destroyed his cotton crops. As is true in the instant case, the funds in Graves Bros, were held by the local agents of the Secretary of Agriculture. In the Graves Bros. opinion, the court discussed the local agents’ right of sovereign immunity, but then held that the impoundment and compulsory assignment of the federal-funds check to the one rightfully entitled thereto did not interfere with the public interest. In so holding, the court reasoned that when the check was issued and delivered to the local agents of the Secretary of Agriculture for delivery to the payee (tenant), or the one entitled to the proceeds under state law, the governmental agencies’ interests ended.

As pointed out by appellees, the funds in issue here were made payable to the appellant as a result of his farming appellees’ land under the parties’ lease, and at the time appellees filed this post-judgment action, the ASCS had no further interest in these funds to which the appellant was entitled except to deliver the appellant his checks. In fact, upon the directive of the trial court, appellant collected his checks from ASCS and paid $5,556.14 into the court’s registry; however, he claims he paid these moneys into the court only because he did not wish to be incarcerated for violating the court’s order. In this respect, appellant, citing article 2, § 27 of the Arkansas Constitution, claims the trial court’s order was unconstitutional because if he had refused to comply with the order, he would have been imprisoned for a debt in a civil action. Appellant’s abstract of record fails to reflect that he raised this constitutional issue below, so we need not address it here. See, e.g., Morris v. Garmon, 285 Ark. 259, 686 S.W.2d 396 (1985). Nonetheless, even if such issue had been presented, we see no merit in appellant’s argument, since it was the prospect that appellant would willfully violate the trial court’s order, not that he was unable to pay the debt, which subjected him to contempt sanctions. See Nooner v. Nooner, 278 Ark. 360, 645 S.W.2d 671 (1983); Harrison v. Harrison, 239 Ark. 756, 394 S.W.2d 128 (1965).

While we conclude the appellant’s funds from ASCS are subject to legal process by the appellees, we further hold that appellees’ action, under the circumstances in this case, lies in chancery court, not circuit. In his findings, the trial judge fully recognized that the type order used here, viz., compelling the appellant to obtain the funds from ASCS and deposit them in the court’s registry, is normally one cognizable in equity. Even so, the judge deemed it impractical for appellees to bring such an action in equity and decided his court had inherent authority to make such an order. We can not agree.

Appellees’ remedy is found in Ark. Code Ann. § 16-66-418 (1987), which in relevant part provides as follows:

(a)(1) [T]he plaintiff in the execution may institute an action, by equitable proceedings, in the court from which the execution issued, or in the court of any county in which the defendant resides or is summoned, for the discovery of any money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled, and for subjecting the money, chose in action, equitable or legal interest, and all other property to which the defendant is entitled to the satisfaction of the judgment.
(2) In such actions, persons indebted to the defendant in the execution or holding the money or property in which he has an interest, or holding the evidences or securities for the same, may be also made defendants.
* * *
(e) The court shall enforce the surrender of the money, or security therefor, or of any other property of the defendant in the execution which may be discovered in the action. For this purpose, the court may commit to jail any defendant or garnishee failing or refusing to make such surrender, until it shall be done, or the court is satisfied that it is out of his power to do so.

Section 16-66-418 was construed by this court in Morgan Utilities, Inc. v. Perry County, 183 Ark. 542, 37 S.W.2d 74 (1931), wherein Perry County previously had obtained a judgment against Morgan Utilities and others (hereinafter Morgans) in Perry County Circuit Court, and then instituted proceedings in Perry County Chancery Court under § 16-66-418 in aid of execution on its circuit court judgment. The Morgans claimed the chancery court had no jurisdiction because the judgment sought to be enforced was rendered by and issued out of the circuit court. In rejecting the Morgans’ argument, this court explained that when § 16-66-418 was enacted, Arkansas only had circuit courts, which exercised both law and equity jurisdictions. However, in 1903, the General Assembly divided the circuit jurisdiction by creating a separate court of chancery, and therefore, it devolved on the chancery court whatever powers the circuit court had on its chancery side under § 16-66-418. Morgan Utilities, Inc., 183 Ark. 542, 37 S.W.2d 74.

Appellees instituted this action to satisfy their judgment through a remedy which, under the circumstances presented, required an equitable proceeding as authorized under § 16-66-418. Because of the circuit court’s lack of jurisdiction to grant and enforce the equitable relief sought by appellees, we reverse and remand with directions to transfer this cause to the Chancery Court of St. Francis County for proceedings to be held consistent with this court’s opinion. See Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976).

Newbern, J., concurs.

Hickman, Purtle, and Hays, JJ., dissent.

David Newbern, Justice,

concurring. The majority opinion is correct and fully expresses my views in this case. I write only to point out that in Monette Road Improvement Dist. v. Dudley, 144 Ark. 169, 222 S.W. 59 (1920), this court held that the creation of the chancery courts in this state left no vestige of equity jurisdiction in the circuit courts. Two Arkansas cases have, however, sanctioned the granting of injunctive relief by a circuit court.

In Daley v. Digby, 272 Ark. 267, 613 S.W.2d 589 (1981), this court did so, erroneously relying on a case which noted the granting of an injunction by a circuit court but in which its power to do so was not the issue on appeal. In Pinckney v. Mass Merchandisers, Inc., 16 Ark. App. 151, 698 S.W.2d 310 (1985), the court of appeals held that a circuit court had the power to issue an injunction because Ark. Code Ann. § 16-13-304 (1987) had not been interpreted as granting chancery courts exclusive jurisdiction in equity matters. That section provides, “Chancery courts shall have original jurisdiction in all matters in equity as fully as that exercised by the circuit courts of this state in counties where no separate chancery courts have been established prior to April 27, 1903.”

Neither the Daley case nor the Pinckney case cited Monette Road Improvement Dist. v. Dudley, supra. Nor did either offer a constitutional rationale to replace the one stated there. They have not been cited in the briefs in this case. If they are cited to us in the future as being inconsistent with this case, we should overrule them.

Darrell Hickman, Justice,

dissenting. The majority and concurring opinions gnaw on this case leaving me with the feeling that this case is one of our victims — not one of our decisions.

First, the majority says the important issue of whether one can be imprisoned for a debt is not raised; then it goes on to say it is meritless anyway. Two domestic relations cases are cited as authority for the proposition that a man can be imprisoned for the failure to pay child support. The imprisonment is supposedly for violation of the court’s order, not failure to pay the debt. Of course, that is not true. The man is imprisoned for failure to pay the debt — it is just a forgiveable slight of the constitutional ban on imprisonment for a debt because of the strong moral obligation to support one’s children. This case involves a simple commercial debt in which the debtor will be jailed if he does not come up with the money. Isn’t that imprisonment for failure to pay a debt?

The concurring opinion takes this case as an opportunity to try to tidy up the law on the question of jurisdiction of circuit and chancery courts, in the process, sideswiping one of our decisions and a court of appeals’ decision.

(I only point out that the circuit court has the inherent authority to issue any orders necessary to exercise its jurisdiction. Arkansas State Police Commission v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972) (concurrence); Dobbins Bros. v. Anderson, 199 Ark. 635, 135 S.W.2d 325 (1940). If that order happens to be an injunction, it can still be issued. Dobbins Bros., supra.)

That brings me to the reason I write in the first place. It is the presence in this case of the legal mutation, the so-called mandatory injunction, which I have discussed before. Springdale Board of Education v. Bowman, 294 Ark. 66, 740 S.W.2d 909 (1987). That creature simply does not exist, and the fact that the majority has recognized it bestows upon it no legitimacy. The case should be dismissed because there is no such remedy.

If I were to reach the merits, I would not treat so casually the question of using the powers of the courts to jail a man to collect a debt.

Purtle, J., joins the dissent.

Steele Hays, Justice,

dissenting. I take exception to that part of the decision holding that this case must be transferred to equity because a court of law has no jurisdiction to order the appellees to deliver the ASCS check to the court. Clearly the circuit court had jurisdiction over the subject matter and the parties and I believe it has the inherent power to issue such orders in the exercise of its jurisdiction as may be necessary to effect full relief. See, Pinckney v. Mass Merchandisers, Inc., 16 Ark. App. 151, 698 S.W.2d 310 (1985); Daley v. Digby, Judge, 272 Ark. 267, 613 S.W.2d 589 (1981); Ark. State Police Comm’n v. Davidson, 252 Ark. 137, 477 S.W.2d 852 (1972) (Fogleman, J., conc.); Dobbins Brothers v. Anderson, County Judge, 199 Ark. 635, 135 S.W.2d 325 (1940); Lane v. Alexander, 168 Ark. 700, 271 S.W. 710 (1925).

In Pinckney, for example, a breach of contract case, the circuit court ordered the defendant to allow the plaintiff to repossess certain property. The attack on the circuit court’s jurisdiction to make such an order was found to be without merit. The Court of Appeals noted that injunctive relief was not solely within the jurisdiction of the chancery court, and, as stated in a concurring opinion, once the circuit court had acquired jurisdiction of the contract action, it could also issue any necessary injunctive relief, citing Daley v. Digby, supra.

In Lane v. Alexander, supra, the circuit court, much like the case before us, ordered the defendant to jail until he delivered up property belonging to the plaintiff. In affirming, we said:

‘A court having jurisdiction to render a judgment or decree, has authority and jurisdiction,’ it is said in R.C.L., supra, ‘to make such orders and issue such writs as may be necessary and essential to carry the judgment or decree into effect and render it binding and operative.’ This power was recognized by the decision of this court in Meeks v. State, 80 Ark. 579, where we upheld an order of the chancery court committing the appellant for contempt on account of failure to comply with an order of the court for the delivery of property. That was an order made by the chancery court, but there is no distinction between the inherent powers of courts of superior jurisdiction in regard to the enforcement of their judgments. Courts of chancery afford peculiar remedies not available at law, but the power to enforce a decree or judgment inheres in all courts of superior jurisdiction, regardless of the peculiar remedies which may be offered by each.

The rule is defined in 42 Am. Jur. 2d Injunctions § 11, p. 737:

A court, once having obtained jurisdiction of a cause of action, has, as incidental to its general jurisdiction, inherent power to do all things reasonably necessary to the administration of justice in the case before it. In the exercise of this power, a court may, when it is necessary in order to protect or preserve the subject matter of the litigation, to protect its jurisdiction, and to make its judgment effective, grant or issue a temporary injunction in aid of or ancillary to the principal action.

The majority relies on Morgan Utilities, Inc. v. Perry, 183 Ark. 542, 37 S.W.2d 74 (1931), which, in response to a challenge to chancery court’s jurisdiction, said only that it was clear chancery had jurisdiction of the matter under Ark. Code Ann. § 16-66-418 (1987). The court in Morgan did not hold, nor was the question before it, that jurisdiction was exclusive in that court.

Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, 222 S.W. 69 (1920), cited in the concurring opinion, also deals with jurisdiction of the subject matter and does not hold that circuit court, where it has jurisdiction, may not issue affirmative orders ancillary to its jurisdiction. In fact, dictum in the Monette opinion pointedly recognizes that possibility:

If the [circuit] court had jurisdiction to hear and determine the cause on the facts stated and grant the relief sought, it could temporarily stay proceedings by injunction as an incident to the exercise of its jurisdiction.

Moreover, ARCP Rule 65(a)(2)(c) expressly provides that when a court issues a temporary injunction it may be made permanent upon good cause shown.

Admittedly, actions for an injunction are of equitable cognizance, but it does not follow that a court of law, having jurisdiction over the parties and the subject matter, may not in furtherance of that jurisdiction issue such orders as are necessary to grant complete relief.

I would affirm the circuit court.

Purtle, J., joins this dissent.

       Obviously, numerous remedies such as attachment, garnishment, etc., are normally available in circuit court for a judgment creditor to pursue in his efforts to satisfy a judgment, but as previously noted, ASCS was not subject to those actions because of its sovereign immunity.

       We consider this issue because it involves subject matter jurisdiction. Tackett v. Robbs, 293 Ark. 171, 735 S.W.2d 700 (1987). The dissenting opinions mention and discuss three earlier opinions by this court in suggesting circuit courts still have equity powers. See Daley v. Digby, Judge, 272 Ark. 267, 613 S.W.2d 589 (1981); Dobbins Brothers v. Anderson, County Judge, 199 Ark. 635, 135 S.W.2d 325 (1940); and Lane v. Alexander, 168 Ark. 700, 271 S.W. 710 (1925). In Daley, the court cited Booth v. Baer,
        263 Ark. 213, 563 S.W.2d 709 (1978), in support of the proposition that a circuit court had power to issue injunctive relief. The Booth decision never discussed such an issue, much less did it hold that the circuit court had power to issue an injunction. The Lane case is wholly inapposite since it involved a replevin order which Lane violated and was found in contempt of court for having done so; both the replevin and contempt proceeding were cognizable at law and no equitable power was involved. The Dobbins holding was based upon a statute [now Ark. Code Ann. § 16-113-301 (1987)] which had been enacted prior to the establishment of chancery courts in 1903 — as was the situation in this court’s earlier decision of Morgan Utilities, Inc. The Dobbins court never discussed its holding in Morgan Utilities, Inc., and we also note that Dobbins involved a chancellor’s issuance of a temporary injunction in aid of the jurisdiction of the circuit court and whether the chancellor had jurisdiction to dissolve it. In sum, the Dobbins holding is not determinative as to whether a circuit court has power to issue injunctive relief.


text:
    MECHANICS LUMBER COMPANY and Fred Myers Company, Inc. v. Mark SMITH
    87-358
    752 S.W.2d 763
    Supreme Court of Arkansas
    Opinion delivered July 18, 1988
    [Rehearing denied September 19, 1988.]

      Eichenbaum, Scott, Miller, Liles & Heister, by: Randel K. Miller, and Anderson & Kilpatrick, by: OvertonS. Anderson, for appellant Mechanics Lumber Company.

      Huckabay, Munson, Rowlett, and Tilley, P.A., by: Beverly A. Rowlett, for appellant/cross-appellee Fred Myers Company, Inc.

      Lavey, Harmon & Burnett, by: John L. Burnett, for appellee/ cross-appellant.

       Holt, C.J., and Newbern, J., not participating.

   Meredith P. Catlett, Special Chief Justice.

This case involves a polygraph examination administered to Appellee, Mark Smith, for his employer Appellant, Mechanics Lumber Company, by Appellant, Fred Myers Company, Inc. Smith sued on three bases: outrage, negligence in administering the polygraph and defamation. The trial court denied Appellants’ motions for a directed verdict on the claim of outrage and the jury awarded a verdict against Mechanics and Myers on this claim. The trial court granted summary judgment for Appellants on the other claims. These rulings have been appealed.

Due to losses of merchandise, Mechanics scheduled polygraph examinations for several employees including Appellee. Mechanics was aware that Appellee suffered from Multiple Sclerosis but was not aware that Appellee’s disease was in an aggravated stage. Immediately before taking the exam Appellee signed a form consenting to the test and releasing Mechanics and Myers from all claims, but he alleges he believed his job would be terminated if he did not sign the form and take the polygraph.

Appellee informed the polygraph administrator, Myers’ employee, that he had Multiple Sclerosis and was taking the drug Prednisone. The administrator said he would later determine whether the medicine could affect the polygraph. Appellee did not object to undergoing the examination. He testified that the experience pf taking the exam did not exacerbate his disease but that he became worse after he learned of the results.

Myers reported to Mechanics that the polygraph revealed that Appellee had been deceptive during the examination. Mechanics informed Appellee of the results but told him the results were questioned because of the uncertain effect of his illness and medication. Another exam was scheduled for the next day. Mechanics contacted Appellee’s physician to determine whether Appellee was physically fit for another polygraph. Based on the physician’s advice that Appellee should not take the test at that time, Mechanics cancelled the exam.

After the test was cancelled, Appellee left work early and did not return for two weeks due to an aggravated stage of his disease. After returning to work for a month, Mechanics told Appellee he was being discharged because he was physically unfit for his duties. Mechanics also told Appellee that his physician told Mechanics that Appellee was unable to perform his job functions, but the physician denied so advising Mechanics.

The first issue is whether the evidence is sufficient to support the tort of outrage. The trial court denied Appellants’ motions for a directed verdict, holding the evidence was sufficient. This claim went to the jury which awarded damages to Appellee against Mechanics and Myers.

In M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980), this court first recognized the tort and held there must be conduct that “is so outrageous in character, and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Counce, supra, at 687. While this court has recognized the type of conduct must be decided on a case by case basis, the strict standard of Counce has remained. Ingram v. Pirelli Cable Corp., 295 Ark. 154, 747 S.W.2d 103 (1988).

Conduct not otherwise outrageous and extreme can be elevated to satisfy the test if the employer knows of an employee’s inability to deal with emotional stress. Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W. 2d 312 (1984) and Ingram, supra. There is no evidence in the instant case that Appellants knew or should have known that Appellee’s disease could worsen by taking the polygraph. In fact, Appellee testified the exam did not result in an exacerbation of his disease. Merely scheduling a second exam did not constitute outrageous conduct by Mechanics.

In determining on appeal the correctness of the trial court’s action concerning a motion for a directed verdict by either party, we view the evidence that is most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. The motion should be granted only if the evidence so viewed would be so insubstantial as to require a jury verdict for the party to be set aside. Green v. Gowan, 279 Ark. 382, 652 S.W.2d 624 (1983); Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982). This court finds no evidence which would raise the level of Mechanics’ or Myers’ conduct to the standard required for the tort of outrage. Therefore, we reverse the denial of Appellants’ motions for directed verdict.

Appellee sought damages alleging negligence by Myers in administering and reporting the polygraph. The trial court granted summary judgment for Myers based on the release contained in the consent form Appellee signed.

We agree with Appellee that the validity of the consent form presented a fact question for the jury. For the consent to be valid it must be executed freely with full knowledge and free of duress. Interstate Fire Ins. Co. v. Ford, 234 Ark. 104, 350 S.W.2d 687 (1961); Perkins Oil Co. of Delaware v. Fitzgerald, 197 Ark. 14, 121 S.W.2d 877 (1938).

Myers is right that a claim of negligent infliction of emotional distress is not recognized in Arkansas, Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982), and that intentional conduct is required to support a claim for interference with prospective advantage. Scholtes v. Signal Delivery Service, 548 F. Supp. 487 (W.D. Ark. 1982). But there is more to Appellee’s negligence claim requiring a decision about the validity of the consent form. Therefore we reverse the summary judgment on this claim and remand.

The trial court granted a summary judgment for Myers on Appellee’s claim for defamation holding the publication of the polygraph report to Mechanics was privileged.

We do not decide whether a privilege exists in this situation because the issues were not developed at trial. If such a privilege exists, fact questions precluded a summary judgment in this case. To establish an absolute privilege the consent form must be valid. Interstate, supra, and Perkins, supra. To establish a qualified privilege, the reasonableness of Myers’ actions must be established. Dunn & Bradstreet, Inc. v. Robinson, 233 Ark. 168, 345 S.W.2d 34 (1961). Therefore, if either type of privilege were to exist, the summary judgment precluded development of the facts so we reverse and remand.

Reversed on appeal and reversed and remanded on cross-appeal.

Holt, C.J., Newbern and Purtle, JJ., not participating.

Special Associate Justice A1 Graves, Jr., joins in the opinion.


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

text:
    James Ed HART v. STATE of Arkansas
    CR 88-29
    756 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered September 12, 1988

      Carrold E. Ray, and Hilburn, Calhoon, Harper & Pruniski, Ltd., by: Robert L. Roddey, for appellant.

      Steve Clark, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

It is undisputed that James Edward Hart shot and killed David Worley in the early morning hours of October 25, 1986, at Hart’s combination residence and grocery store in Brickeys, Arkansas. The question to be resolved by the jury was whether the killing was in self-defense. The jury found it was not, found Hart guilty of first degree murder and sentenced him to 40 years imprisonment. On appeal three arguments are raised — all are meritless.

First, it is argued that Hart’s statement should have been suppressed because the Miranda warning was defective. This argument is meritless because at trial the objection to the warning was that it had the same defect found in Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987), cert. denied, 108 S.Ct. 1076 (1988). On appeal it is argued that the warning was inadequate for other reasons. One who changes grounds for an objection on appeal runs afoul of our policy that we will not address issues raised for the first time on appeal. Harris v. State, 295 Ark. 456, 748 S.W.2d 666 (1988).

The second argument is that Hart’s statement should have been suppressed because he did not intelligently waive his rights. Hart and Worley had been drinking. When Hart was taken to the police station, he registered .12 blood alcohol content on the breathalyzer.

At the Denno hearing, he readily conceded his signed statement was accurate, and he did not say he was too intoxicated to understand what was going on. The dispute actually centers on a statement Hart made after his written statement was signed. The officer said he asked Hart if the victim and his brother were actually leaving when he shot Worley, and Hart replied yes. This oral statement was also admitted into evidence. The trial judge found the statements were voluntarily made. The officers interrogating Hart said that Hart was not intoxicated to a disabling degree when he was questioned some six hours after the incident, four hours after the intoxometer was administered.

We review the totality of the circumstances in such cases to see if the confession is voluntary and the waiver proper. McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988). We find no error in this case.

Finally, Hart argues that the trial judge erred when he refused to give the choice of evils instruction codified in Ark. Code Ann. § 5-2-604 (1987). The judge did instruct the jury on self-defense using AMCI 4105. We held in Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979), that the choice of evils instruction should not be given in a homicide case when self-defense is argued by the defendant. That decision still makes sense, so this argument must fail.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result and agree that we held in Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979), that the justification instruction should not be given in a homicide case where self-defense is argued by the defendant, and the jury is in fact instructed on the issue of self-defense.

Neither Peals nor Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980), holds that justification is never a proper defense in a homicide case. The plain words of the statute are that justification is a proper defense if the conduct is necessary as an emergency measure to avoid imminent public or private injury.


author: Robert H. Dudley, Justice.

text:
    Robert L. ROPER v. STATE of Arkansas
    CR 88-45
    756 S.W.2d 124
    Supreme Court of Arkansas
    Opinion delivered September 12, 1988

      Marc Aaron Kline, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant, Robert L. Roper, was convicted of rape and sentenced as an habitual offender. On appeal he argues that (1) the evidence was insufficient to support the verdict, and (2) the jurors were improperly influenced by a comment made just outside the jury room while they were deliberating. There is no merit in either argument, and we accordingly affirm.

The prosecutrix testified that around 3 o’clock in the afternoon she went to a fish fry at Murray Park in Little Rock. There she saw a friend, Eddie Matowitz, and began talking to him. Soon, they were joined by the appellant, whom she already knew. It began to rain, and the three of them decided to go to the appellant’s house to watch a movie on television. The prosecutrix rode with appellant in his car as he drove to his house. Matowitz followed in his car. The three of them watched the two hour movie and, some time later, Matowitz left. The appellant then pulled out a butcher knife, grabbed the prosecutrix, and raped her at knife point.

Matowitz corroborated the fact that the prosecutrix was at the appellant’s house, and other witnesses testified that the prosecutrix was hysterical later that evening.

The appellant argues that the testimony is insufficient to sustain the verdict because he established discrepancies in the testimony about (1) whether the prosecutrix first talked to the appellant or to Matowitz; (2) whether the prosecutrix and the appellant discussed getting some cocaine; and (3) the time of day when the rape occurred.

We have consistently held that the requirement of substantial evidence is satisfied by the rape victim’s testimony alone. Houston v. State, 293 Ark. 492, 739 S.W.2d 154 (1987); Sales v. State, 291 Ark. 338, 724 S.W.2d 469 (1987); and Sanders v. State, 277 Ark. 159, 639 S.W.2d 733 (1982). We have reaffirmed our position on this point twice this year. Taylor v. State, 296 Ark. 89, 752 S.W.2d 2 (1988); and Lewis v. State, 295 Ark. 499, 749 S.W.2d 672 (1988). Stated differently, “the testimony of a victim of rape does not have to be corroborated by other testimony.” Urquhart v. State, 213 Ark. 486, 621 S.W.2d 218 (1981). Thus, the prosecutrix’s testimony alone is sufficient to satisfy the requirement of substantial evidence. Further, her testimony is not rendered insubstantial as a matter of law simply because of the discrepancies in the testimony. Discrepancies in testimony and credibility of witnesses are for the jury to resolve. Wilkins v. State, 292 Ark. 596, 731 S.W.2d 775 (1987). Here, the jury obviously chose to believe the prosecutrix’s testimony that the appellant raped her.

Appellant next argues that the jurors were improperly influenced by a comment made just outside the jury room during deliberation. We deal perfunctorily with the argument because there is absolutely nothing in the record to indicate that anyone made any type of comment outside the jury room, and there was no objection or post-trial motion setting out the alleged comment. The alleged comment was not brought to the trial court’s attention in any manner. We will not consider a matter in the absence of a record showing that the trial court erred in some way, King v. Younts, 287 Ark. 91, 643 S.W.2d 542 (1982), nor will we consider a matter for the first time on appeal. Dean v. State, 293 Ark. 75, 732 S.W.2d 855 (1987).

Affirmed.


author: David Newbern, Justice.

text:
    Santiago SANCHEZ v. STATE of Arkansas
    CR 87-156
    756 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered September 12, 1988

      Pruitt & Hodnett, by: Roger T. Jeremiah, for appellant.

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

The appellant, Santiago Sanchez, appeals from a denial of post-conviction relief. His conviction of possession of methamphetamine with intent to deliver and sentence, as an habitual offender, to 35 years imprisonment were affirmed. Sanchez v. State, 288 Ark. 513, 707 S.W.2d 310 (1986). We granted permission to file a petition for post-conviction relief to determine the merits of Sanchez’s claim that the lawyer who represented him was rendered ineffective by a conflict of interests and whether Sanchez suffered specific prejudice as a result of the alleged conflict. Sanchez v. State, 290 Ark. 39, 716 S.W.2d 747 (1986). The trial court found no prejudice. We affirm the denial of post-conviction relief.

In the direct appeal of the conviction, we found the evidence sufficient to show that Sanchez was found with Bernie Netz in the apartment of Toni Needham “surrounded” by drug paraphernalia, including vessels containing methamphetamine. In a coat lying on the bed was a pistol with bullets and a syringe in a plastic bag. Another gun was found on Sanchez’s person. Another man, named Piercefield, was tried and convicted with Sanchez. Pierce-field’s conviction was reversed and dismissed for lack of substantial evidence. Needham and Netz pleaded guilty in separate proceedings.

The trial court found that the lawyer who represented Sanchez, Garner Taylor, Jr., was charged with assault during the entire time he represented Sanchez. The charge against Taylor was being pursued by the same prosecutor and in the same court as the charge against Sanchez. Shortly after Sanchez was convicted, counsel for Taylor negotiated a reduction in the degree of the assault charge from felony to misdemeanor, and Taylor pleaded guilty and was fined $1000 and placed on probation for one year. Sanchez contends Taylor could not have given Sanchez his full allegiance while Taylor was thus seeking relief from the very prosecutor who was his adversary in Sanchez’s case.

Sanchez argues his conviction must be vacated because he has been denied effective assistance of counsel to which he is entitled under the Sixth Amendment to the United States Constitution. He contends he is entitled to relief due to Taylor’s conflict of interests, regardless of prejudice. Alternatively he contends that, if we conclude a finding of prejudice resulting from the conflict is necessary to grant him relief, the trial court erred in finding that no prejudice occurred.

1. Conflict and ineffective assistance

The Supreme Court’s decision in Cuyler v. Sullivan, 446 U.S. 335 (1980), defined the issue which arises when a Sixth Amendment claim of ineffective assistance of counsel is based on an allegation of counsel’s conflict of interests. The issue is whether counsel actively represented conflicting interests which “actually affected the adequacy of his representation.” 446 U.S. at 349. In such instances, the court said, the defendant need not demonstrate prejudice in order to obtain relief. The Cuyler case was a typical conflict of interests instance of counsel representing multiple defendants in a common trial. We can understand how, for example, failure to cross examine a co-defendant for fear of exposing a fact which might be helpful to another co-defendant amounts to an “actual” effect on counsel’s representation which might or might not be prejudicial to the latter co-defendant.

The first appellate decision in the Cuyler case was made by the United States Court of Appeals for the Third Circuit. Sanchez asks us to follow another case from that court, United States v. DeFalco, 644 F.2d 132 (3rd Cir. 1980), which was remarkably similar to this one. The DeFalco case was decided some five months before the Supreme Court decided the Cuyler case. In writing the plurality opinion, which was one of six separate opinions in the DeFalco case, Judge Aldisert thus did not have the advantage of the ruling of the Supreme Court in the Cuyler case. He concluded that where there is a conflict of interests, caused by counsel being under indictment in the same court with the same prosecutor, a defendant should not be required to prove prejudice to his case resulting from the conflict because of the difficulty of showing what counsel did not do as a result of the conflict.

The standard adopted in the Cuyler case, which was repeated in obiter dicta in Strickland v. Washington, 466 U.S. 668 (1984), although developed in multiple representation cases, could have been applied in the DeFalco case and can be applied here. It is not the conflict of interests which requires relief under the Sixth Amendment; rather, it is the conflict of interests when coupled with “active representation” of conflicting interests which “actually affects” counsel’s adequacy.

We remanded this case, as noted above, for a determination whether the conflict existed and whether “prejudice” could be shown. We now recognize that prejudice would be irrelevant if it could be shown that Taylor’s conflict of interest had any actual effect whatever on his representation of Sanchez. However, no harm has been done, as the record has been developed fully with respect to any complaints Sanchez had against Taylor’s representation of him, and we find no evidence that Taylor was in any way affected by the charge against him in his representation of Sanchez.

2. The evidence

At the hearing held upon remand, Sanchez testified that he did not know Taylor was charged with a felony during the time Sanchez was represented by him. He said he felt Taylor’s performance was inadequate in several respects, and the instances he recited are the ones argued by counsel in this appeal as having resulted in prejudice to Sanchez’s case. The trial judge, however, found no prejudice in any of them.

The trial judge’s order denying post-conviction relief stated that he did not believe Sanchez’s statement that he did not know of the charge against Taylor until after the trial. Taylor testified at the hearing that he had informed Sanchez of the charge because he felt he was entitled to know. The judge found further that Taylor had not permitted error by failure to move to sever Sanchez’s case from those of co-defendants because no sufficient ground for severance existed. He found that it was not a mistake for Taylor to have permitted introduction of guns and ammunition found on or near Sanchez and the amphetamine at the time of his arrest because Taylor had previously moved unsuccessfully to suppress them, and the point was not even raised by separate appellate counsel on direct appeal.

The court found further that Sanchez had provided no information as to the probable testimony of Needham and Netz who, he said, should have been called to testify on his behalf. Taylor testified he interviewed the witnesses, and their testimony would have been unfavorable. Lastly, the court found that Sanchez’s complaint that Taylor should not have permitted a statement of a co-defendant to come into evidence could not be substantiated as Sanchez was not mentioned in the statement, and he had no standing to object on behalf of his co-defendant.

Nothing in the record before us suggests that Taylor did anything or failed to do anything with respect to Sanchez’s case on account of Taylor’s having been charged with a felony during the time he represented Sanchez. Not only was Taylor not involved in actively representing his own interest which may have conflicted with those of Sanchez, but the record does not show his representation was “actually affected” by it.

Affirmed.


author: Tom Glaze, Justice.

text:
    Napoleon POLLARD v. STATE of Arkansas
    CR 88-34
    756 S.W.2d 455
    Supreme Court of Arkansas
    Opinion delivered September 12, 1988

      David L. Gibbons, for appellant.

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

Appellant was convicted of theft of property having a value in excess of $2,500 and was sentenced to forty (40) years in prison and fined $15,000. He raises only one argument on appeal: the trial judge erred in denying appellant’s motion in limine to suppress the use of his prior convictions for impeachment purposes under A.R.E. Rule 609. We find no error, and therefore we affirm.

On April 25,1987, appellant and Pamela Renee Taylor were arrested for stealing jewelry from the Emporium Store in Russellville. At appellant’s trial, Patty Austin, the shop clerk working at the time of the theft, testified that the appellant and Taylor entered the store, and when they left, jewelry was missing from one of the cases. According to Austin, the appellant inquired about the prices of several pieces of furniture located at the back of the store, causing her to leave the jewelry counter where she usually stood. At the time, Taylor was looking in the jewelry cases. Austin said appellant further distracted her from observing Taylor when he kicked a box of soft drink boxes. Austin testified that during this distraction, she thought she heard one of the jewelry cases being opened. Austin noticed a tray of jewelry was missing at the same time the appellant and Taylor left the store; Austin called for them to stop, but they got into a car, at which time she saw appellant turn around and laugh. Later that day, the police apprehended the appellant and Taylor and found a ring tray and one ring in their vehicle.

At trial and after the state rested, the appellant renewed his motion in limine to prevent the state from cross-examining appellant with the use of three convictions he previously had received for grand larceny. The court denied appellant’s motion, finding the case turned on the credibility of the witnesses and ruling the prior convictions were more probative than prejudicial. After the ruling, the appellant’s attorney proffered his client’s testimony, stating that the appellant had no idea that Taylor was going to take the jewelry and that the appellant would have had the jewelry returned if he had known.

Under A.R.E. Rule 609(a)(1), a witness’s credibility may be attacked by admitting evidence that he or she has been convicted of a crime only if (1) the crime was punishable by death or imprisonment in excess of one (l)_year under the law under which he was convicted; and (2) the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness. This court has recognized that Rule 609 concerns itself with the credibility of a witness who is offering testimony in the current case, and that admissibility must be decided on a case-by-case basis. Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982). In determining the admissibility of such evidence, the trial court has wide discretion, and we will not reverse absent an abuse of discretion. Id.; Young v. State, 269 Ark. 12, 598 S.W.2d 74 (1980).

We find that the trial judge properly admitted the prior larceny convictions under Rule 609(a)(1). Appellant’s proffered testimony most certainly would have placed his credibility in issue since his version of what occurred at the store at the time of the theft was at odds with the testimony given by the store clerk, Austin. Austin’s testimony clearly implicated the appellant as playing a role in the theft of the jewelry. For example, she testified, “You know, he was obviously, I thought, trying to distract me and so I was trying to watch her (Taylor) too.” As noted earlier, appellant’s proffered testimony countered the state’s evidence by indicating that he had no idea that Taylor was going to take the jewelry. Accordingly, we hold the trial court did not abuse its discretion in ruling that the probative value of admitting the evidence of the prior larceny convictions outweighed its prejudicial effect to the appellant. Therefore, we affirm.

       The trial judge granted the appellant’s and Taylor’s motion to sever the defendants, thus the appellant was tried alone.

       In his ruling, the trial judge also stated the larceny convictions should be admitted because larceny goes to truthfulness under Rule 609(a)(2). However, we need not address the correctness of the judge’s reasoning in this respect since we ultimately hold that the judge correctly admitted the convictions by utilizing the required balancing test under A.R.E. Rule 609(a)(1).


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

text:
    Paul MILLER v. Hon. Judge Don LANGSTON
    CR 88-52
    756 S.W.2d 455

    Supreme Court of Arkansas
    Opinion delivered September 12, 1988

      James R. Marschewski, for petitioner.
    No response.

       Dissenting opinion can be found at 761 S.W.2d 884.

   Per Curiam.

Petitioner seeks a writ of prohibition upon allegations that the state has violated his right to a speedy trial by failing to try him within twelve months of his arrest on charges of possession of a controlled substance with intent to deliver, possession of drug paraphernalia, and with being an habitual criminal, CR-87-239, Circuit Court of Sebastian County, Arkansas, Ft. Smith District. The case is presented upon a stipulation of facts. The stipulation contains nothing concerning a trial date, but from the briefs it appears the petitioner may have been tried on these charges on April 19, 1988.

The parties are directed to submit a joint pleading or stipulation, to be filed with our Clerk advising whether petitioner has in fact been tried on these charges.

IT IS SO ORDERED.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent. The petitioner took the only logical course of action available to him after the trial judge denied his motion to dismiss for lack of a speedy trial. He petitioned this court for a writ of prohibition. The fact that there has since been a trial and conviction should have no bearing on the consideration of the merits of the case.

The parties appealed on a stipulated record containing all the facts necessary to decide this case.

The only remedy for denial of a speedy trial is dismissal. If the petitioner was not timely tried, we should simply dismiss the case. Otherwise, petitions for prohibition in situations such as this are rendered meaningless.


author: Per Curiam

text:
    Robin WALKER v. STATE of Arkansas
    RC 88-39
    759 S.W.2d 791
    Supreme Court of Arkansas
    Opinion delivered September 12, 1988

      Beverly C. Claunch, for appellant.
    No response.
   Per Curiam

Appellant, Robin Walker, by his attorney, Beverly C. Claunch, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to her miscalculation of the ninety-day limit for filing the record in this Court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See per curiam dated February 5, 1979, In Re: Belated Appeals In Criminal Cases, 265 Ark. 964; Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981). A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Lisa McCLANAHAN v. L. D. GIBSON
    87-367
    756 S.W.2d 889
    Supreme Court of Arkansas
    Opinion delivered September 19, 1988

      John V. Phelps, for appellant.
    No brief filed.
   Jack Holt, Jr., Chief Justice.

This appeal is from a judgment for the appellee, L. D. Gibson, on his tort claim against the appellant, Lisa McClanahan, for property damage totaling $1,029.33. McClanahan argues that the trial court erred in denying her request for a trial by jury. We agree and reverse.

In her answer to the complaint filed by Gibson, McClanahan denied liability and requested a jury trial. The case was set accordingly. Upon discovering that the suit was for $ 1,029.33, the trial judge reset the case for trial by the court. During the course of pretrial proceedings, and on the day of trial, McClanahan renewed her request for a trial by jury. The court denied the final request, stating:

[T]he constitutional amendment which gave jurisdiction to the municipal court up to [$3,000.00] gives concurrent jurisdiction both to the circuit court and the municipal court, and if the municipal court can try a lawsuit without a jury, the circuit court should be able to, and, for that reason, the motion is denied for a jury trial.

In relevant part, article 2, section 7 of the Arkansas Constitution provides:

The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy. [Emphasis ours.]

We have held that “the constitutional right to trial by jury does not secure the right in all possible instances but only in those cases that were so triable at common law.” Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1987). The underlying tort action is one of those cases.

While section four, paragraph seven, of Act 431 of 1987 [Ark. Code Ann. § 16-17-704(a)(6) (Supp. 1987)] does provide for the concurrent jurisdiction referred to by the trial court, we find nothing in Act 431 which would suggest an intent by the legislature to abrogate the constitutional right to a trial by jury in tort actions triable in circuit court. To the contrary, section 16-17-703, which deals with appeals from municipal court, clearly demonstrates the legislature’s concern that the right secured by article 2, section 7 of the Arkansas Constitution not be diminished:

There shall be no jury trials in municipal court. In order that the right of trial by jury remains inviolate, all appeals from judgment in municipal court shall be de novo to circuit court.

For cases triable by jury at common law, such as the one at bar, the circuit court’s reasoning and judgment not only contravenes the mandate of article 2, section 7, but also renders the legislative intent behind section 16-17-703 meaningless. Simply put, inasmuch as this is a tort case in circuit court, appellant has a right to trial by jury regardless of the amount in controversy.

Reversed and remanded.


text:
    Benny COOPER v. The Honorable Don LANGSTON, Circuit Judge
    CR 88-51
    756 S.W.2d 896
    Supreme Court of Arkansas
    Opinion delivered September 19, 1988

      James R. Marschewski, by: R. Paul Hughes III, for appellant.

      Steve Clark, Att’y Gen., by: C. Kent Jolliff, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

This petition for a writ of prohibition asserts that petitioner has been denied a speedy trial on three felony counts of an information filed in the Sebastian County Circuit Court. We find no denial of petitioner’s right to a speedy trial.

On February 22,1987, petitioner was arrested and charged in the first information with three felony counts. He was released on bond a little over a week later, on March 3. About a month later, on April 8, he was arrested and charged in a second information containing four separate and additional felony counts. He was released on bond on these second charges about a week later, on April 14. Less than three months later, on July 9, he was arrested for yet another felony. He did not make bond on this last charge. He remained in the Sebastian County jail until October 14, when he was tried and convicted on the four counts contained in the second information. He was then sent to the penitentiary and has since remained there. The trial court set April 20, 1988, as the date for the trial of the three counts contained in the first information. Petitioner moved for dismissal of these counts based upon the speedy trial rules. The trial court denied the motion. Petitioner then filed a petition for a writ of prohibition in this Court. On April 19, 1988, we granted a temporary stay and mandated briefing under Rule 16 of the Rules of the Supreme Court and Court of Appeals. We now dissolve the temporary stay and deny the petition for the writ.

Petitioner contends that the time which elapsed from his arrest on February 22, 1987, to his scheduled trial on April 20, 1988, a period of about 14 months, entitles him to a dismissal of the three counts contained in the first information. He bases his contention on A.R.Cr.P. Rule 28.1(b) which provides:

Any defendant charged with an offense in circuit court and incarcerated in prison in this state pursuant to conviction of another offense shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

Rule 28.1(b) is applicable only while a defendant is charged with one crime and is incarcerated in prison pursuant to conviction of another crime. It does not apply while a defendant is at liberty on bond. Here, the petitioner was arrested on February 22,1987, and in a little over a week was set at liberty. He was not “incarcerated in prison in this state pursuant to conviction of another offense” until October 14, 1987. At that time Rule 28.1 (b) came into play. The trial was set for April 20,1988, which was well within the twelve month period necessary to try a defendant who stands charged with one crime while he is incarcerated in prison pursuant to conviction of another.

Similarly, in Mackey v. State, 297 Ark. 307, 651 S.W.2d 82 (1983), and Hall v. State, 281 Ark. 282, 663 S.W.2d 926 (1984), we held that under Rule 28.1(b) only the period of time a defendant is under arrest for one crime and incarcerated in prison on another crime is counted.

The case of Floyd v. State, 280 Ark. 226, 656 S.W.2d 701 (1983), is readily distinguishable from the case at bar. There, Floyd was arrested on August 25,1981, and was held in jail until January 21,1982, when he was incarcerated in prison on another charge and held there until his trial on November 16, 1982, a period of 14 months and 26 days from the date of his arrest. Because he was continually held in jail or prison, and forced to defend the original charge while always incarcerated, we rightfully tacked the jail time onto that served in prison pursuant to another conviction. We do not have such a situation in the case at bar.

Writ denied.