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

text:
    Dewey STILES, Director of Labor, and SEARS PORTRAIT STUDIO v. Nora HOPKINS
    83-307
    666 S.W.2d 703
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984

      Thelma Lorenzo, for appellant.

      Murry L. Grider, for appellee.
   Steele Hays, Justice.

This is an appeal of a claim for unemployment benefits under the Arkansas Employment Security Law. The Appeal Tribunal denied the claim under Section 5 (a) of the Act [Ark. Stat. Ann. § 81-1106 (a)], which disqualifies a claimant who voluntarily leaves employment without good cause connected with the work. The Appeal Tribunal found that the claimant, who was receiving benefits from earlier employment, did not have good cause to quit subsequent part-time work at Sears Portrait Studio. The Board of Review affirmed.

The claimant was represented by retained counsel both before the Board of Review and on appeal to the Court of Appeals, where her attorney prepared and filed an abstract and brief as in non-ESD cases.

The Court of Appeals affirmed the Board of Review on the finding that claimant had quit her job without good cause, but reversed and remanded the case for an award of benefits on an issue the Director of Labor submits was not raised by either side at any stage in the proceedings. We granted the Director’s petition for review to determine whether the point was presented and, hence, properly decided by the Court of Appeals.

After deciding the first issue, i.e. whether the Board of Review had substantial evidence to find the claimant did not have good cause to leave her j ob at Sears Studio, the Court of Appeals considered what it termed a “second issue raised by the appeal,” i.e. whether an individual who is already receiving benefits attributable to prior full-time employment becomes disqualified because he or she voluntarily quits after-acquired, part-time work. The first issue is dealt with under Ark. Stat. Ann. § 81-1106 (a), and is a common point of dispute in ESD cases, but the second issue, which the Court of Appeals recognized as one of first impression in Arkansas, involves other sections of the act, § 81 -1104 (c) and § 81-1105 (m), dealing with the effect of part-time work on entitlement to benefits.

We have no hesitancy in declaring that the second issue is not raised in any discernible fashion in the brief of either party, nor do we find anything in the abstract or, for that matter, in the record itself which suggests that this question was considered or argued by the parties either below or on appeal. The only issue discussed in the briefs is whether the claimant had good cause to quit her part-time work. We are left to conclude that the second issue, one we think may have far reaching consequences, has not been properly presented and should not have been decided without being fully developed. Little Rock Road Machinery Co. v. Jackson County, 233 Ark. 53, 342 S.W.2d 407 (1961); Palmer v. Cline, 254 Ark. 393, 494 S.W.2d 112 (1973); First Pyramid Life Insurance Company of America v. Reed, et al, 247 Ark. 1003, 449 S.W.2d 178 (1970). In City of Ft. Smith v. Daniels, Director of Labor, 269 Ark. 617, 599 S.W.2d 750 (Ark. App. 1980) the Court of Appeals rejected arguments raised for the first time in the Court of Appeals;

It is settled law that an appellate court will not consider questions raised for the first time on appeal. Issues are resolved upon a record that is properly constructed at the trial level; and the appellant has the duty, unless the appellee deems the transcript deficient, to tender a record containing all of the evidence relevant to his case. (Citations omitted.)

Nor do we think the two issues are essentially one, so that a claimant merely by arguing that there was good cause to leave part-time employment raises the contention, entirely by implication, that the legislature had in mind only “full-time work” when it drafted § 81-1106 (a) to state that one who “voluntarily and without good cause connected with the work, left his last work” (our italics) is disqualified for benefits. The Court of Appeals has cited decisions from other jurisdictions applying that construction where similar wording is found in employment security statutes. However, we make no attempt to decide whether that interpretation is sound because it is certain the issue was not considered even remotely by the Board of Review or by the parties. The question should not be decided apart from the traditional methods of litigation, but by adversary proceedings at the trial and appellate levels after fair notice of the issues raised. It would be fundamentally unfair to one litigant to reverse and dispose of a case on appeal on arguments which have not been developed in the lower court, nor argued and briefed in the appellate court. Grumlin v. Gray, 246 Ark. 635, 439 S.W.2d 290 (1969); Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638 (1951).

Reversed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Appellee was receiving extended unemployment benefits when she accepted a part-time job with Sears Portrait Studio. The part-time job did not disqualify her from continuing to receive unemployment benefits except for a reduction in benefits for two weeks in which she worked more hours than usual. She could receive up to $38.00 from earned wages before her benefits would be reduced. Her hours had been reduced to seven hours a week for which she was paid $20.65. The hours were arranged to require her to work three hours on Monday and two hours on each of two evenings. She lived ten miles from work and had to hire a babysitter the two nights she worked. In terminating her employment she stated she was not getting enough hours to pay for driving to and from work and paying the babysitter. Had she continued her employment at seven hours a week she would have still been entitled to her full unemployment benefits. The sole reason she was denied continued benefits was because she voluntarily quit the part-time job. In her petition to the Appeals Tribunal she said: “I am appealing this decision because I feel I had just cause to quitas it was costing me more money to drive to this part-time job than I was making.”

The question is whether the issue of eligibility was properly considered by the Court of Appeals. I think the issue is so intricately interwoven with the disqualification issue that the two cannot be separated. The claimant’s reason for appealing was that she had been disqualified from receiving continued benefits. Had the Division allowed her to continue receiving benefits, as it had during her employment at Sears, she obviously would not have appealed. Her only complaint and the reason for her appeal is the fact that she was ruled ineligible for unemployment benefits because she voluntarily quit her last job. Although she claimed justification for leaving the job, the real issue to her was denial of benefits. It would have made no difference to her whether she had just cause to quit the j ob or not if she had continued to receive unemployment compensation. Therefore, I think the Court of Appeals was correct in deciding the issue of continued benefits.

Other jurisdictions considering this question have held that voluntarily leaving a part-time job without just cause related to the work is not sufficient cause to disqualify an employee from receiving benefits which were accrued by reason of prior full-time employment. Tomlin v. California Unemployment Ins. Appeals, 82 Cal. App. 3d 642, 147 Cal. Rptr. 403 (1978); Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983); Unemployment Compensation Board of Review v. Fabric, 24 Pa. C. 238, 354 A.2d 905 (1976); and Neese v. Sizzler Family Steak House, 404 So. 2d 371 (Fla. 1981).

If benefits are denied by reason of leaving part-time employment, it is likely to discourage unemployed persons from accepting such jobs. Such employment should be encouraged in order to reduce unemployment and preserve the funds from which benefits are paid. Arkansas courts have held that voluntarily leaving full-time employment without j ust cause connected with the employment is not necessarily disqualifying if the reason for leaving is a justifiable personal emergency or illness. Morse v. Daniels, Director, 271 Ark. 402, 609 S.W.2d 80 (Ark. App. 1980); Graham v. Daniels, 269 Ark. 774, 601 S.W.2d 229 (Ark. App. 1980). The Act is to be construed liberally in order to accomplish its beneficent purpose. Graham v. Daniels, supra. It seems so wasteful to refuse to rule on the real subject of this appeal on the pretext that it was not raised below. I agree with the Court of Appeals where it held that when an employee voluntarily quits part-time work, which does not disqualify him from receiving unemployment benefits, he is not disqualified within the meaning of section 5 (a) from receiving benefits based upon prior qualifying employmen t. In addition to all I have said I believe the appellant quit her job for good cause. It is obvious to me that an employee or anyone else who consistently loses money on a job is not too bright if he continues such work without promise or hope of betterment.

         Tomlin v. California Unemployment Ins. Appeals, 82 Cal. App. 3d 642, 147 Cal. Rptr. 403 (1978); Gilbert v. Hanlon, 214 Neb. 676, 335 N.W.2d 548 (1983), and Unemployment Comp. Board of Review v. Fabric, 24 Pa. Commw. 238, 354 A.2d 905 (1976).


source: Caselaw Access Project

author: P. A. Hollingsworth, Justice.

license: Public Domain

text:
    Joseph FRATESI and Velma FRATESI v. Cy BOND d/b/a BOND PLANTING COMPANY
    84-43
    666 S.W.2d 712
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984

      Samuel A. Perroni, for appellants.

      A. Jan Thomas, Jr., Jake Brick, and Preston Hicky, for appellee.
   P. A. Hollingsworth, Justice.

On May 30, 1980, appellee Bond Planting Co. hired Osceola Aerial Service to apply two herbicides by cropduster airplane to its soybean crop. The appellants, Joseph and Velma Fratesi, complain that the herbicide spray drifted from Bond’s field across a county road onto his home and crops causing substantial damage. This is the second occurrence of spray drifting from Bond’s field onto the Fratesi property since 1979. The complaint filed by the appellants seeks compensatory damages against Osceola Aerial Service and both compensatory and punitive damages against Bond. Subsequent to lengthy discovery conducted by both parties, Bond filed a motion for summary judgment on the issue of punitive damages. The trial court granted the motion stating in its order that the evidence presented in the discovery aspect of the case is not sufficient to make an issue of punitive damages. This appeal is from that order.

We have held in numerous cases that we do not reach the merits of an appeal if the order appealed is not final. Corning Bank and Bailey Bippus v. Delta Rice Mills, Inc., 281 Ark. 342, 663 S.W.2d 737 (1984); Heffner v. Harrod, 278 Ark. 188, 644 S.W.2d 579 (1983); McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982); Roberts Enter., Inc. v. Arkansas Highway Comm’n, 277 Ark. 25, 638 S.W.2d 675 (1982). In all of these cases we stated that in order for a judgment to be appealable, it must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter in controversy. See also Johnson v. Johnson, 243 Ark. 656, 421 S.W.2d 605 (1967). The trial court did not grant summary judgment in the whole case, and we are not in a position to predict what evidence will be presented at trial relevant to all claims for relief sought by the appellants. If this appeal were allowed and we decided the issue on punitive damages and subsequent errors occurred during the trial on the remaining issues, the case could be appealed a second time, resulting in two appeals where one would suffice. This case illustrates simply the reason for the rule that an order must be final to be appealable. See Rule 2, Arkansas Rules of Appellate Procedure. This is a jurisdictional requirement we are obliged to raise even when the parties do not. Arkansas Savings and Loan Ass’n v. Corning Savings and Loan Ass’n, 252 Ark. 264, 478 S.W.2d 431 (1972); McConnel v. Sadle, 248 Ark. 1182, 455 S.W.2d 880 (1970). Accordingly, this appeal is dismissed.

Dismissed.


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

text:
    Leonard BURRIS, et al v. Honorable Henry BRITT, Special Judge
    83-219
    667 S.W.2d 367
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984
    No response by petitioners.

      Steve Clark, Atty. Gen., by: Kay J. Jackson Demailly, Asst. Atty. Gen., for respondent.
   Per Curiam.

Respondent’s motion to retax the costs and to amend the mandate is granted. The State is relieved from paying costs.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I think the court is wrong in retaxing the costs against the winning party. Just because the costs should not be taxed against Judge Britt or the State of Arkansas does not mean that the prevailing party should have to pay it pursuant to Ark. Stat. Ann. § 27-2320. In fact my reading of this statute clearly indicates that the clerk shall forfeit the fees in this case.

We have a related serious problem with prevailing parties in this court, being unable to collect costs. This problem is represented by the per curiam handed down this date in case No. 82-233. The taxation of costs against a losing party in this court is usually paid but no entry of satisfaction is ever made. This may give the appearance of an unsatisfied judgment.

If we are unable to enforce our judgments and satisfy our records then we should request the General Assembly to remedy the situation for us.


author: Per Curiam.

text:
    John ALEXANDER v. STATE of Arkansas
    667 S.W.2d 366
    Supreme Court of Arkansas
    Opinion delivered April 9, 1984
    Appellant, Pro Se.

      Steve Clark, Atty. Gen., by Theodore Holder, Asst. Atty. Gen., and Marci L. Talbot, Asst. Atty. Gen., for appellee.
   Per Curiam.

On February 12,1981, the appellant John Alexander entered a negotiated plea of guilty to a charge of second degree murder. The trial court accepted the plea and sentenced appellant to 15 years imprisonment to be served consecutively to another sentence appellant was serving. In December, 1982, appellant filed in circuit court a pro se petition pursuant to A.R.Cr.P. Rule 37 to vacate the plea. The petition was denied without a hearing by an order entered August 19, 1983. No notice of appeal from the order was filed and appellant now seeks permission to pursue a belated appeal.

Appellant alleges that he mailed a notice of appeal to the circuit court on or about August 29, 1983. When he got no response from the circuit court, he asked this Court to allow him to file a petition for writ of mandamus on the ground that the circuit court had failed to respond to his notice of appeal. Upon inquiring of the circuit clerk, however, it was determined that a notice of appeal had not been received from appellant. Appellant now contends that the notice of appeal was lost in the mails.

When a pro se Rule 37 petition is denied, the petitioner is entitled to appeal. A.R.Cr.P. Rule 37.3. With the right, however, goes the responsibility to file a timely notice of appeal. Scott v. State, 281 Ark. 436 664 S.W.2d 475 (1984). The bare allegation that the notice was lost in the mail is not good cause to grant a belated appeal. If it were held to be good cause, an appellant could easily bypass the requirement of filing a timely notice of appeal by asserting in conclusory fashion that he mailed the notice but it did not reach its destination.

Motion denied.


author: Darrell Hickman, Justice.

text:
    Ernest Ray HICKERSON v. STATE of Arkansas
    CR 83-160
    667 S.W.2d 654
    Supreme Court of Arkansas
    Opinion delivered April 16, 1984

      Honey & Rogers, for appellant.

      Steve Clark, Atty. Gen., by: Patricia G. Cherry, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Ernest Ray Hickerson was convicted in Howard County of rape, kidnapping and burglary. His convictions must be reversed because two statements made by him were taken by the authorities without the permission of his attorney, who only consented to him being given a polygraph examination and not to his being interrogated. In addition, we find that there is no substantial evidence to support the conviction for burglary and order that charge dismissed. Pollard v. State, 264 Ark. 753, 574 S.W.2d 656 (1978); Greene v. Massey, 437 U.S. 19 (1978).

Hickerson was accused of kidnapping and raping a twelve year old girl who was visiting her mother’s home in Nashville, Arkansas. According to the testimony of the girl, Hickerson came to the home after 10 p.m., entered through an unlocked door, and asked about her mother and sister, who she said were asleep. The victim said they talked about five minutes, and then Hickerson drew a gun, took her out to his car, and drove some distance where he raped her. Hickerson became a suspect when the sheriff’s office received an anonymous call saying that the officer should investigate Hickerson and his mother’s car. The car matched the description given by the victim. The police obtained permission to search the vehicle and found some incriminating evidence corroborating the statement of the victim. Hickerson went in for questioning, was given his rights, and admitted that he was in his mother’s vehicle the night of the crime. Hickerson maintained that another person had borrowed the car for a period of time that night and that person had left for California. Hickerson was supposed to return the next day for further questioning but left the state and did not return for six months. In the meantime, he had been charged with rape, kidnapping and burglary. When he returned he had retained counsel. His counsel agreed with the sheriff to allow Hickerson to take a polygraph examination, without counsel present. Hickerson took the polygraph examination, and the Arkansas state policeman who administered the test said that afterwards Hickerson told him that he had had sexual intercourse with the girl. The policeman then advised him that he needed to tell the truth and “as long as he told the truth he would get more help from officers than he would if he lied.” He took Hickerson to the sheriff’s office where Hickerson was read his rights. Two statements were taken from Hickerson, one prepared by the officers and one in Hickerson’s handwriting. The sheriff candidly conceded that he did not have permission of counsel to interrogate Hickerson, only' permission to give him a polygraph examination. The sheriff testified that he knew there was a difference between a polygraph examination and a statement because the results of a polygraph test are not admissible into evidence.

It is fundamental that if a defendant requests counsel, interrogation must stop immediately and all questioning must take place with counsel present. Miranda v. Arizona, 384 U.S. 436 (1966); Michigan v. Mosley, 423 U.S. 96 (1975). However, it is also true that a defendant may waive the right to counsel; and if the defendant initiates contact or conversation with authorities repudiating his previous request for counsel and unequivocally waives his right to counsel, then a voluntary statement may be taken from the defendant. Brewer v. Williams, 430 U.S. 387 (1976); Edwards v. Arizona, 451 U.S. 477 (1981). There is a heavy evidentiary burden on the state anytime a statement is taken while the defendant is in the custody of the authorities. See Scroggins v. State, 276 Ark. 177, 633 S.W.2d 33 (1982). Unless the waiver of counsel is clearly shown, the statement cannot stand. We are required on appeal to examine the totality of the circumstances to determine if such a waiver was made. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983). In this case, there are two important facts which dictate our decision. First, the police officer’s statement to Hickerson encouraging him to make a statement and advising him that it would help him. Second, the statement of the sheriff acknowledging the fact that in good faith, counsel had delivered Hickerson only for the purpose of taking a polygraph test and not for the purposes of taking a confession. Attorneys and police officers, who work in the judicial system must be able to trust each other. Their roles must be mutually respected. Otherwise, many cases, where a defendant has an attorney, could evolve into a swearing match between the accused and police officers. Under those circumstances, there is very little possibility that a defendant’s statement would be believed. The circumstances of this case required the sheriff to call the attorney before the statement was taken. The evidence of waiver is not clear and convincing. We find that Hickerson’s two statements were taken without a valid waiver of counsel and are, therefore, involuntary and inadmissible.

We find no substantial evidence to support the conviction for burglary. The jury specifically found that Hickerson did not use a firearm. If the jury had found otherwise, there would be substantial evidence that Hickerson intended to commit a felony when he entered the house. However, the evidence is simply that Hickerson entered an unlocked house, apparently uninvited, and that he and the victim talked for some time before he committed any act. We cannot say that there is any fact which would support a finding that, at the time Hickerson entered the house, he intended to commit a felony. See Ark. Stat. Ann. § 41-2002 (Repl. 1977); Washington v. State, 268 Ark. 1117, 599 S.W.2d 408 (Ct. App. 1980).

Appellant also argues that if his conviction stands, it should be for one crime and not three, essentially arguing that Ark. Stat. Ann. §41-105 (Repl. 1977) prohibits punishment for one offense when it includes another offense. We have held before that a person can be convicted of both kidnapping and rape. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980); see also Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). Furthermore, it would have been possible in this case for circumstances to support a conviction for burglary if the facts had been present to support that separate crime. Conley v. State, supra. None of these crimes, rape, burglary or kidnapping, is necessarily a lesser included offense of the other. All involve separate elements, and it is not necessary to prove one offense in order to prove another, which is one of the tests in applying the statute. See Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983). Furthermore, we do not find that this was one continuous offense under Ark. Stat. Ann. § 41-105 (1) (e) (Repl. 1977).

Appellant raises the issue of jurisdiction on appeal but did not raise it below. The victim testified that, as they were returning from a rural area to the town of Nashville, they passed the county line sign. This statement would not, in and of itself, void the conviction nor mean that Howard County would not have jurisdiction. First of all, Ark. Stat. Ann. § 41-110 (Repl. 1977) provides that “the state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows the court lacks jurisdiction or venue. ’ ’ The evidence supported a finding that the victim was abducted in Howard County. We cannot say from this record positively where the rape occurred, since this was not an issue pursued below. Neither can we say from this record that Howard County did not have jurisdiction. See Ark. Stat. Ann. § 43-1414 (Repl. 1977), which covers jurisdiction for offenses or acts that have been committed partly in one county and partly in another.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no other prejudicial error in the points argued or in the other objections abstracted for review.

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    THE CITIZENS BANK OF BATESVILLE, ARKANSAS v. ESTATE OF Mae PETTYJOHN
    83-299
    667 S.W.2d 657
    Supreme Court of Arkansas
    Opinion delivered April 16, 1984

      Highsmith, Gregg, Hart, Farris Rutledge, by: John C. Gregg, for appellant.

      Boyette, Morgan ¿r Millar, P.A. by: Mike Millar, for appellee

      Steve Clark, Atty. Gen., by: Jeffrey A. Bell, Asst. Atty. Gen.; Dennis Shackleford, President, Arkansas Bar Association; Robert A. Leflar; and Hulen & Cuffman, by: Mike Hulen, for Arkansas Bar Association, amicus curiae.

   John I. Purtle, Justice.

The trial court awarded a certificate of deposit to the survivor. The certificate was made payable to either or both of two individuals and payable on death to the survivor. The decedent’s estate appealed to the court of appeals which reversed the trial court and awarded the certificate to the estate. We granted certiorari to review primarily because the authority of the court of appeals to sit in division and reverse a case by three 'fmes-to-.sit in division and reverse a case by three votgs-wars challenged. Weh'Oid-that^the court of appeal-s-m'áyreverse a case by three votes while sitting ihTivision and that the court of appeals correctly„deeided the question of the ownership of the certifi&ate'oTdeposit.

On August 3, 1978, Mae Pettyjohn withdrew the sum of $14,000 from a joint checking account which she shared with Jimmie Lynn Ballard. The signature card on the account, which was in the Citizens Bank, was signed by both parties. The money withdrawn was used to purchase certificate of deposit number 6172, made payable to Mae Pettyjohn or Jimmie Lynn Ballard. When certificate number 6172 matured, the decedent renewed it in the same amount ($14,000) as originally invested. The new certificate was numbered 9573. A “Depositors Notice of Penalty for Payment of Time Deposits Before Maturity,” printed on a separate piece of paper, was presented to decedent and she signed it. However nothing in it indicated the certificate was jointly owned with Jimmie Lynn Ballard.

After the decedent’s death, her estate and the survivor named on the certificate of deposit each claimed the certificate. The trial court found the decedent had substantially complied with the provisions of Ark. Stat. Ann. § 671552 (Repl. 1980), which require a designation in writing of the depositor’s intent to create a joint tenancy. The court of appeals found there had been no substantial compliance with the statute.

In the recent case of Walker v. Hooker, 282 Ark. 61, 667 S.W.2d 637 (1984) we reviewed many of our prior cases on this subject. In Walker we held that the signature of the purchaser upon a. copy of a certificate was a sufficient designation in a separate writing. In Morton v. McComb, 281 Ark. 125, 662 S.W.2d 471 (1983), we held that a typed statement on a signature card was sufficient to comply with the designation in writing requirement. In Morton we stated that, “Where there is more than one person designated, they hold as joint tenants with right of survivorship.”

In the present case the decedent and the survivor established a joint checking account which was payable to the survivor. The signature card was signed by both parties. The decedent then withdrew $14,000 from the checking account and purchased a certificate of deposit in both names with a P.O.D. clause. This certificate contained a notice to depositors on the back of the certificate and this notice was signed by the decedent. She also signed a separate notice at the time she renewed the certificate. These funds were handled three times, and each time both names were used. However, the decedent never signed any paper acknowledging joint ownership.

We are of the.opinion that the previous designation in writing in this case does not comply with prior decisions and the statute which has now been amended by the legislature. The court of appeals was correct in holding the designation in writing requirement was not complied with.

Appellant challenges the authority of the Arkansas Court of Appeals to sit in divisions. It is further argued that appellant’s right to due process is violated by a decision of three judges voting to reverse the decision of the trial court. The argument is that three members of the six member court cannot reverse a trial court because the decision would not be by a majority of the six member court. Appellant contends that when only three members of the court vote to reverse the case should be affirmed. Normally a tie vote of the court of appeals results in affirmance. Hegg. v. Dickens, 7 Ark. App. 139, 644 S.W.2d 632 (1983). However, when the court sits in divisions of three, a unanimous vote will either reverse or affirm.

Amendment 58 to the Constitution of Arkansas was adopted in 1978. The Amendment empowered the General Assembly to create and establish a court of appeals and divisions thereof. By Act 208 of 1979 (Ark. Stat. Ann. §§ 22-1201 — 22-1208 [Supp. 1983]) the legislature created a court of appeals and established six j udges for the court. The court sat en banc until Act 410 of 1983 (Ark. Stat. Ann. §§ 22-1209 — 22-1212 [Supp. 1983]) became effective, when the court commenced sitting in two divisions.

We need not consider whether the Constitution is a grant or a limitation of power in the General Assembly because Amendment 58 to the Arkansas Constitution of 1874 specifically confers authority for the General Assembly to establish a court of appeals and divisions of the court. In futherance of the authority granted by Amendment 58, the legislature saw fit to authorize the court of appeals to establish two divisions. The language could not be more clear than where the Amendment states: “The General Assembly is hereby empowered to create and establish a Court of Appeals and divisions thereof ...” All reasonable doubt must be resolved in favor of the constitutionality of a statute. Poole v. State, 244 Ark. 1222, 428 S.W.2d 628 (1968). The burden of proving a statute to be unconstitutional is upon the party challenging it. Handy Dan Imp. Center Inc. v. Adams, 276 Ark. 268, 633 S.W.2d 699 (1982). We must give the words of a statute their usual and ordinary meaning. We cannot give a statute any other meaning if it is unambiguous. Mears, County Judge v. Ark. State Hospital, 265 Ark. 844, 581 S.W.2d 339 (1979).

This court sat in division as provided for by Amendment 9 to the Arkansas Constitution and by Act 205 of 1925 (Ark. Stat. Ann. §§ 22-206 — 22-208 [Repl. 1962]). We required four votes, a majority of this court, to reverse a case. However, that has no relevance to the present case other than the fact that both courts were divided into division pursuant to constitutional amendments and acts of the General Assembly. Provisions of Act 410 of 1983 (Ark. Stat. Ann. §§ 22-1210 — 22-1211) provide that the court of appeals shall sit in divisions of three and that if all three judges do not agree the case will be submitted to the full court. The plain wording of Amendment 58 authorizes such action by the General Assembly.

We hold that Act 410 of 1983, authorizing the court of appeals to sit in divisions of three and authorizing either division to affirm or reverse a case by a unanimous decision, is a valid exercise of legislative authority as contemplated by Amendment 58.

The case is remanded to the trial court with directions to award the certificate of deposit to the estate of Mae Pettyjohn.

ERRATA

282 ARKANSAS REPORTS at page 224

Detach at perforation, moisten the back, and paste over the last five lines of the first full paragraph of the majority opinion on page 244 of Cit. Bank of Batesville v. Estate of Pettyjohn:

votes was challenged. We hold that the court of appeals may reverse a case by three votes while sitting in division and that the court of appeals correctly decided the question of the ownership of the certificate of deposit.

      ERRATA

      282 ARKANSAS REPORTS at page 224

    Detach at perforation, moisten the back, and paste over the last five lines of the first full paragraph of the majority opinion on page 244 of Cit. Bank of Batesville v. Estate of Pettyjohn:

    votes was challenged. We hold that the court of appeals may reverse a case by three votes while sitting in division and that the court of appeals correctly decided the question of the ownership of the certificate of deposit.


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

text:
    Rosemary CHANCELLOR v. Larry Lindell CHANCELLOR
    84-63
    667 S.W.2d 950
    Supreme Court of Arkansas
    Opinion delivered April 16, 1984

      John F. Arens and John L. Barnes, for appellant.

      W. Q. Hall, for appellee.
   John I. Purtle, Justice.

The chancellor removed custody of a young boy from his mother on the ground that the mother was living with a man to whom she was not married. This case was certified to us from the Court of Appeals for the reason that it involves an issue of significant public importance and perhaps an interpretation of a part of the Arkansas Constitution. The appellant contends that the trial court erred in changing custody of the child without requiring a showing that the mother was unfit and that the mother was deprived of due process of law. We do not reach either point because we find the order was not appealable.

The parties to this action were divorced on February 12, 1979, at which time the court found it fit and proper that the mother receive custody of the two children, Tracy, age 12 and Jonathan, age three. Subsequently the mother moved to Florida. Tracy was allowed to live with her father and attend school in Arkansas. In the summer of 1983, Jonathan was allowed to come to Arkansas to visit with his father and other friends and relatives. Upon learning that the mother was living in a three bedroom home with an unmarried man, the father refused to send his son back to the mother as agreed. The children were then ages 16 and seven. The custody of Tracy is not in dispute.

On August 1, 1983, the appellee filed a petition to modify the 1979 decree and grant a change of custody. On the same day the chancellor entered a temporary order granting custody of the children to the father on the grounds that it was in the best interest of the children. Appellant filed a response to the petition to modify the decree in which she denied all material allegations for a change of custody and denied she was living in adultery with a man to whom she was not married. On August 30, 1983, a hearing was held upon the question of change of custody. Testimony presented revealed that the father of the children had been married and divorced twice since the divorce from the appellant and that he worked on an offshore drilling rig which necessitated his being home two weeks and on the rig two weeks. During his absence the children were cared for by his parents. When the appellant admitted she lived in a home with an unmarried man, the court refused to hear her further. Her testimony was proffered but the court refused to grant her relief solely because she continued to live unmarried with another man. The court entered an order finding that the better home situation was with the father and custody was granted to him with reasonable visitation rights reserved to the mother. The order appointed a guardian ad litem for the children and ordered Arkansas Social Services to cause home studies to be made of the respective homes and for reports to be furnished the court. The court retained jurisdiction for the purpose of visitation, custody, other matters concerning the children, and further orders of the court.

We first discuss the matter of whether the order is appealable. We have many times held to the effect that to be appealable an order, decree or judgment must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter in controversy. McIlroy Bank & Trust v. Zuber, 275 Ark. 345, 629 S.W.2d 304 (1982). Rule 2 (a), Ark. R. App. P., defines appealable orders. We do not overlook cases like Wood v. Wood, 226 Ark. 52, 287 S.W.2d 902 (1956), where we held that an order for temporary custody was appealable, even though the order was expressly stated to be temporary. In that case, the child had been removed from the court’s jurisdiction and it appears that a change of custody was ordered in the custodial parent’s absence. However we also said, in Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638 (1951), “[T]his is not a mere temporary award of custody pending a trial of the case upon its merits. As far as we can determine from the record, the parties had completed their proof and submitted the matter to the court.” We think that the decree in this case is a temporary award pending trial on the merits. The record reflects that appellant has not yet completed her proof. The order in the present case did not terminate any cause or right, dismiss any party from the action or conclude their rights. By its very terms it is a temporary order. The court ordered an investigation of the respective homes and ordered that a report be made to the court. It is obvious the court did not intend to take final action on this matter based solely upon the fact that the mother may be living in adultery. We do not find the order appealed from to be an appealable order.

Appeal dismissed.

Hickman, J., would affirm on merits.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. The change of custody in this case, like that in Walker v. Eldridge, 219 Ark. 594, 243 S.W.2d 638 (1951), has the earmarks of permanency and on that basis I would treat it as an appealable order. Furthermore, the overriding consideration in custody disputes is where the best interests of the children are served. The better course here, I believe, would have been to leave custody unchanged until the proof was completed, when the court could better determine where custody should be placed.


author:
Robert H. Dudley, Justice.
      P. A. Hollingsworth, Justice,

text:
    E. F. PATTON and L. Faye PIERCE v. Charles RAGLAND, Commissioner, Division of Revenue Department of Finance and Administration; Dale CHARLES v. Scott GORDON, Commissioner of Arkansas Department of Human Services and Charles RAGLAND, Commissioner, Division of Revenue, Department of Finance and Administration
    83-304 and 83-305
    668 S.W.2d 3
    Supreme Court of Arkansas
    Opinion delivered April 16, 1984
    [Rehearing denied May 21, 1984.]

      Gro,ce, No.pper, Allen ir East, for appellants.

      Timothy J. Leathers, Joseph V. Svoboda, Kelly S. Jennings, Wayne Zakrzewski, Ann Fuchs, Joe Morphew, and Mike Munns, by: John H. Theis, for appellee Commissioner of Revenue.

      Steve Clark, Atty. Gen., by: Elizabeth Dowling, Asst. Atty. Gen., for appellee Commissioner of Youth Services, Arkansas Department of Human Services.
   Robert H. Dudley, Justice.

Appellants Patton and Pierce were discharged from their jobs with the Division of Revenue of the Department of Finance and Administration. Pursuant to Act 693 of 1981, Ark. Stat. Ann. § 12-3901, etseq. (Supp. 1983), they appealed to the Arkansas Merit System Council Board. The Board ordered appellents reinstated. Appellee Ragland, Commissioner of the Division of Revenue, appealed to circuit court. The circuit court dismissed for lack of jurisdiction. We affirmed, finding judicial review inappropriate because the act provides: “The decision by this Board regarding such appeals shall be final and binding on the appointing authority/agency.” Department of Finance and Administration, et al v. Merit System Council Board, et al, 280 Ark. 325, 658 S.W.2d 369 (1983). Upon remand the appellee commissioner refused to reinstate the appellants to their former positions. Appellants then petitioned the Circuit Court of Pulaski County for a writ of mandamus and asked that the appellee commissioner be directed to reinstate them in accordance with the orders of the Board. The circuit court, finding that the act was unconstitutionally vague and unlawfully delegated legislative authority to the Board, denied relief to the appellant. We affirm. Jurisdiction to determine the constitutionality of an act of the General Assembly is in this court. Rule 29(1 )(c).

The act at issue, Ark. Stat. Ann. § 12-3905 (2) (Supp. 1983), provides:

It shall be the duty of the Board to hear appeals on its behalf for Merit and non-Merit System agencies in accordance with the Merit System Rules and Regulations regarding appeals____The decisions by the Board regarding such appeals shall be final and binding on the appointing authority/agency.

No other provision of the act describes the word “appeals.” As a result, the Board is given complete discretion to decide the subject matter to be appealed. In such a vacuum the Board posseses absolute, unregulated and undefined authority to act. For example, the Board might decide to hear appeals from minor personnel disputes such as dress codes or excused absences in inclement weather or the setting of thermostats or eating and drinking at an employee’s desk. It might decide to hear appeals from disagreements over pay, job transfers, affirmative action programs or termination of a probationary employee. It might decide to limit appeals to termination of employment of regular employees. In addition the act does not define “Merit and non-Merit System agencies.”

Thus, the Board might decide to hear an appeal from any subject matter controversy involving any state agency except the Arkansas State Highway Commission and the Arkansas State Highway and Transportation Department. See § 12-3907. In Cline v. Plaza Personnel, 252 Ark. 956, 481 S.W.2d 749 (1972), we stated: “Discretionary power may be delegated by the legislature to the licensing authority, but it is essential that reasonable guidelines be provided.” We have held other acts unconstitutionally vague because key words were not defined. For example, in Davis v. Smith, 266 Ark. 112, 583 S.W.2d 37 (1979), the enactment dealing with custody rights allowed parental rights to be terminated if the parents could not provide a “proper home.” In Walden v. Hart, 243 Ark. 650, 420 S.W.2d 868 (1967), the act granted the local police chief or the state motor vehicle commissioner the authority to decide, without resort to any definition, which vehicles would be deemed “emergency vehicles” under the statute. We said the “ . . . Legislature gave to the named authorities an unbridled discretion and that is fatal” to the act. Despite its presumption of constitutionality, Ark. Stat. Ann. § 12-3905 (2) is so vague that it necessarily delegates legislative authority to the Board and is unconstitutional.

The appellants contend that the General Assembly can, within limits, empower administrative agencies to adopt rules and regulations to carry out the legislative will and, they argue, that was done in this case. For example, the State Highway Commission can be authorized to promulgate reasonable rules and regulations to regulate traffic on state highways. Snow v. Riggs, 172 Ark. 835, 290 S.W. 591 (1927); the Board of Control of State Agricultural Institutions can be empowered to provide for rules and regulations dealing with the eradication of cattle ticks. Davis v. State, 126 Ark. 260, 190 S.W. 436 (1916); and the State Board of Health can validly promulgate rules, orders, and regulations dealing with the prevention of the Spread of disease, State v. Martin and Lipe, 134 Ark. 420, 204 S.W. 622 (1918). However, the plain wording of § 12-3905 (2) does not empower the Board to promulgate rules and regulations to carry out the purposes of the act.

The appellants next contend that § 12-3905 (2) refers to the Board’s rules and regulations and, by reference, incorporates them. They then argue that the missing definition of the word “appeal” can be found in the rules existing at the time of the enactment of the statute. We find no merit in the argument. In Hall v. Ragland, Comm’r of Revenues, 276 Ark. 350, 635 S.W.2d 228 (1982), we noted that reference statutes are constitutionally permissible. However, a statute will not be construed to be a reference statute unless the unequivocal and inflexible import of the terms of the statute manifests the intent of the General Assembly that the statute be considered as such. The terms of § 12-3905 (2) do not reflect such an intent.

The facts and holding set out above relate to the first of the consolidated cases, Patton and Pierce v. Ragland. Our decision in that case is determinative of all issues in the companion consolidated case of Dale Charles v. Scott Gordon.

Affirmed.

Purtle and Hollingsworth, JJ., dissent.

P. A. Hollingsworth, Justice,

dissenting. I disagree with the majority opinion that Ark. Stat. Ann. § 12-3905(2) (Supp. 1983) is unconstitutional. The statute authorizes the Merit System Council Board to hear appeals from Merit and non-Merit System agencies “in accordance with the Merit System Rules and Regulations regarding appeals.” The majority bases their decision on the fact that no provision of this act defines the word “appeals.” This, the majority claims, gives the Board complete discretion in deciding the subject matter of the appeals it hears. This is not correct. The statute clearly prescribes that the Board will hear appeals in accordance with the existing Merit System Rules and Regulations, thereby incorporating these rules into the statute by reference, a practice we recognized in Hall v. Ragland, Comm’r of Revenues, 276 Ark. 350, 635 S.W.2d 228 (1982). In that case, we quoted an Alabama opinion as follows:

There is a class of statutes, known as “reference statutes” which impinge upon no constitutional limitation. They are statutes in form original, and in themselves intelligible and complete — statutes which refer to, and by reference adopt, wholly or partially, pre-existing statutes. In the construction of such statutes, the statute referred to is treated and considered as if it were incorporated in and formed a-part of that which makes the reference. . . . Such statutes are not strictly amendatory or revisory in character, and are not obnoxious to the constitutional provision which forbids a law to be revised, amended, or the provisions thereof to be extended or conferred by reference to its title only.

Since, as the majority points out, the General Assembly can authorize administrative agencies to promulgate reasonable rules and regulations, I see no reason why the pre-existing rules and regulations of an agency cannot be adopted by reference in a statute just as a pre-existing statute can be. The Merit System Rules & Regulations supply the definitions and terms necessary to delineate the authority of the board to hear appeals. For instance, Rule 12.4.1 provides that “[a] permanent employee who is dismissed, suspended or demoted shall have the right of appeal to the Council provided they have exhausted all provisions of the agencies grievance procedure or other administrative remedies or the employee must have sufficient proof that they were denied access to the grievance procedure or other administrative remedies.” The Board’s jurisdiction is therefore limited to such cases. The majority states that a statute will not be construed to be a reference statute unless the unequivocal and inflexible import of the terms of the statute manifest the intent that the statute be considered as such. The words here meet that test. Given the presumption of constitutionality that every statute enjoys, plus the clear wording of this statute, I do not think that it is unconstitutionally vague. I would grant the requested relief.

Purtle, J., joins in this dissent.


text:
    Ellis M. WILKINS and Mary Louise WILKINS v. EL DORADO & WESSON RAILROAD
    83-258
    668 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered April 16, 1984
    [Rehearing denied May 21, 1984.]

      Mays ir Crutcher, P.A., by: Richard L. Mays and Judith C. Lansky, for appellant.

      Compton, Prewett, Thomas ér Hickey, P.A., by: Robert C. Compton, for appellee.

      Hickman, Purtle & Hollingsworth, JJ., would strike petition.

   P. A. Hollingsworth, Justice.

Ellis M. Wilkins, appellant, sued his employer, the El Dorado and Wesson Railroad, appellee, under the Federal Employers Liability Act. Appellant contended that he injured his back while lifting railroad ties over the side of a hopper or gondola car, a railroad car with sides of varying height but being three feet four inches in this case. In his complaint, Wilkins stated the railroad was negligent in failing to provide a safe place to work and failing to provide him with reasonably safe and suitable machinery and tools with which to do his work. Appellant’s wife, Mary Louise Wilkins, alleged a loss of consortium due to her husband’s injury. The trial court sustained an objection to testimony offered by the appellant on rebuttal. The Court of Appeals certified this case to this Court under Rule 29 (4) (b). We reverse.

The question is whether the trial court abused its discretion by excluding| testimony offered by the appellant on rebuttal. A review of the record reveals that evidence was elicited by Appellee in its case in chief on the standard of unloading cross ties from hopper or gondola cars. D. B. Hart, a witness for the railroad, now employed by the south Central Arkansas Railway and previous to that the Rock Island Railroad testified as follows:

Q. : Do you have an opinion as to what the standard of the railroad industry is in unloading cross ties from gondola cars?
A.: In the many years that I have witnessed the unloading of cars, the method used was by hand.
Q.: All right, and “by hand,” that means with railroad section crew or laborers picking up the railroad ties and lifting them out and getting them out of the gondola?
A.: That’s correct.
Q.: And has that been true, as far as you’re concerned, throughout the railroad industry to your knowledge?
A.: To my knowledge, yes.

Hart was allowed to give his opinion about this practice, including the size of the crews, in the industry based upon his employment with other railroads. This method of unloading and other information surrounding the practice was an important aspect in this case.

In an effort to rebut this testimony, appellant sought to introduce the testimony of Roosevelt Manning, an employee of forty-seven years with the Missouri Pacific Railroad who would testify how he had seen railroad ties unloaded from gondola or hopper cars and the size of the crews during his long work experience. Without stating why, the trial court excluded this testimony.

In Panger v. Duluth, Winnepeg and Pacific Railway Co., 490 F.2d 1112 (8th Cir. 1974) the trial court excluded testimony offered by the defendant railroad as to the use of a line-up procedure by other railroads. The Eighth Circuit stated:

The practices prevailing in an industry are some indication, although not controlling of what a reasonable and prudent practice is and should have been admitted. [Cites omitted]. The plaintiff was allowed to give his opinion regarding the use of the line-up. The line-up and what information was necessary to be included therein was very much an important aspect in this case. Although we cannot know upon what basis the jury found negligence on the part of the Railway, we think exclusion of this relevant testimony substantially prejudiced the Railway’s attempt to justify its line-up procedure. We, therefore, reverse and remand for a new trial.

We have held before in Bain v. Fort Smith Light & Traction Company, 116 Ark. 125, 172 S.W. 843 (1915) that rebuttal testimony must rebut the testimony advance by the other side and should not consist of testimony which might have been advanced as proof in chief. Here, the testimony on standards used in the industry developed during the trial and was therefore a proper subject for rebuttal.

We reverse and remand.


text:
    Evelyn R. GREEN et al v. Mac CARDER, et al
    84-53
    667 S.W.2d 660
    Supreme Court of Arkansas
    Opinion delivered April 16, 1984

      Jock T. Lassiter, for appellant.

      Dono,Id R. Bennett, for appellee.
   P. A. Hollingsworth, Justice.

The Alcoholic Beverage Control Board granted the application of Dr. Edward Stewart Allen for retail liquor and off premise beer permits. On appeal, the circuit court upheld the Board’s decision. We are being asked to reverse the circuit court and the Board and find that there was not substantial evidence to support the granting of the permit. We affirm.

Dr. Allen’s application was denied by the director of the Alcoholic Beverage Control Division. On appeal, the Beverage Control Board unanimously approved the application after conducting a hearing which was attended by fourteen people in opposition. In their decision, the Board cited the following factors:

(1) That the applicant is legally and morally qualified to hold the applied for permit;
(2) That the proposed outlet will not greatly reduce the number of parking spaces available to patrons in the immediate shopping area;
(3) That maps were introduced at the hearing which show that there are only two other liquor retail outlets in a defined market area and that in the immediate area of Kavanaugh and Cantrell, there is only one other outlet;
(4) That there is evidence contained within the record that the development of the land into a liquor store outlet is desirable as it will be a low vehicle traffic business;
(5) That plans are contained within the file for the proposed outlet;
(6) That no evidence was offered by any of the objectors as to the character of the applicant nor was there any testimony offered that the proposed outlet would be detrimental to other existing liquor outlets.

The trial court upheld the Board’s action, finding that the decision was supported by substantial evidence.

The record made before the ABC Board contains the arguments presented by Allen in favor of granting the permit and by the fourteen people in opposition who attended the hearing. Since these are the facts upon which a finding of substantial evidence must be based, we will set them out in pertinent part. The appellee, Dr. Allen, appeared, representing himself and testified as follows:

I had planning consultants come out over a year ago to advise me on the best development of this piece of vacant property. I considered a fast food operation and I considered a retail sporting goods store but because of the area that it is in and the traffic and parking it was his advice, his professional advice, that the lowest traffic production and the lowest parking requirements would be a retail liquor outlet. That’s my reason for, it’s a pure development situation. . . .
I would like to point out that there is no official objection in the file from any city official. ... I would like to comment also on the petitions there in the file. . . . Some of those petitions were gathered at the cash register of two opposing retail liquor outlets.. . . I have outlined the trade area here. This is, this area [which] is bounded by Markham Street to the south, by Cedar Street to the east, and by University Avenue ... to the west contains approximately 15,000 to 20,000 people. . . .In this area. . . there are presently two outlets. Two retail liquor outlets. ... So there is an outlet in the neighborhood already. ... I am going to oversee [the operation of the outlet] to a major degree. This proposed location is three blocks from my house.... I hire competent, experienced managers and I am in direct contact. On some of my other businesses on almost a daily basis. . . . [A]s far as the parking is concerned. In the file is a proposed plot plan showing the location of the proposed door on the parking lot. Now the parking lot primarily at this point does not serve parking for the businesses there. It serves as a primary parking for the employees that work in the surrounding businesses. . . . There are present on that thirty-one parking spaces. With the proposed development of this lot there will be twenty-nine parking spaces. So I am proposing to eliminate two parking places.
All the retail outlets in that area . . . close at 10:00 and that is our intention also.

Sandra Cherry, spokesperson for the opposition, testified as follows:

This opposition is not based on any opposition to alcohol in particular. This opposition is based primarily on the fact that the neighborhood itself and the shopping center itself are in ter-related.. . . [T]hese are some of the considerations.. . . The first one is that we feel that its particular location would lower the property value of the area directly behind the proposed location.. . . Secondly, we are most concerned with the fact that Dr. Allen is a practicing physician and he will not be, there is no way that he could adequately supervise and be present sufficiently himself to have control over it. There are other considerations . . . mainly with the parking that is available now. . . . [T]he store that Dr. Allen is proposing will take up part of only the remaining parking space. . . . The exit from where the store would be located comes in awkwardly into an intersection which is already a difficult'area. . . . [F]or the property located behind the proposed store, the proposed permit, the noise level has been high, will be higher with the store and the stores that are there at the present time close early,. . . around six or seven and at this time pose no problem. It will introduce to this particular block another kind of element, a later night element. . . . [T]hat kind of activity will now be more disturbing to these people who live behind that area who have always been able to anticipate that it will be a quiet area for them to be.
These people are concerned with their neighborhood. They . . . may be a group that is just tired of alcohol in particular, . . . but also it is more concern for property values and general nature of the neighborhood. . . . The retail liquor store that he proposes is operating during the day . . . and it is that time that these people are concerned about the parking or the hazardous congested condition in general. It is at that point and time that the children are all out there playing and shopping . . . and that’s when they are concerned about the traffic and the parking.. . . [Ajlthough Mr. Allen had certain control over it when he says it will not disturb the parking in the general vicinity, it will in a certain sense. He can perhaps control it to a certain degree but what they are saying generally is that the area out here is so limited in the first place.

Other members of the oppostion reiterated the same complaints as those articulated by Ms. Cherry.

At the original hearing before the Director of the ABC Division when the application was rejected, 103 letters were submitted and 229 signatures on petitions were presented. In the hearing before the ABC Board, where the application was approved, eighty-eight signed copies of a short form protest letter; four signed copies of a long form protest letter; forty-four signatures on a long form petition; and 264 signatures on a short form petition were submitted along with the testimony partially presented supra.

The Alcoholic Beverage Control Board is empowered to determine whether public convenience and advantage will be promoted by issuing liquor permits. Ark. Stat. Ann. § 48-301 (Supp. 1983). Ark. Stat. Ann. § 5-713 (Supp. 1979) provides that courts may reverse or modify a decision of an administrative board if the decision is not supported by substantial evidence. Copeland v. Alcoholic Beverage Control Board, 4 Ark. App. 143, 628 S.W.2d 588 (1982). We do not, however, substitute our judgment for that of an administrative agency, absent an abuse of discretion by that agency. Copeland, supra. When reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the agency’s decision, or was there arbitrary and capricious action, or was it characterized by abuse of discretion. Ark. ABC Bd. v. King, 275 Ark. 308, 629 S.W.2d 288 (1982). In Gordon v. Cummings et al, 262 Ark. 737, 561 S.W.2d 285 (1978) we held:

It is well settled that administrative agencies are better equipped than courts, by specialization, insight through experience and more flexible procedures to determine and analyze underlying legal issues; and this may be especially true where such issues may be wrought up in a contest between opposing forces in a highly charged atmosphere. This recognition has been asserted, as perhaps, the principal basis for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency.

In examining similar cases, we have held that “[t]he number or official position of persons who object to or support the issuance of retail liquor permits is of no significance under the statute. The reasons those persons oppose or support specific permit applications may be very significant.” Snyder v. ABC Bd., 1 Ark. App. 92, 613 S.W.2d 126 (1981). In ABC Board v. Blevins, 5 Ark. App. 107, 633 S.W.2d 380 (1982) , the Court of Appeals upheld the board’s granting of a permit, stating:

Most of appellees’ proof dealt with the general lack of need for another liquor store, the danger and hazards it might produce, the inability of law enforcement to police the area and the reduction of the value of surrounding property. The Board had before it all of this evidence, as well as that provided by White. Much of the evidence was in conflict and required the Board to weigh and decide which testimony and proof it chose to believe. In considering all the evidence, we conclude the Board had sufficient proof upon which to base its decision to grant White a permit. If we were to hold otherwise, we would doubtless be substituting our judgment for that of the Board, an exercise in discretion we are clearly not afforded under the rule established in Gordon v. Cummings, supra. This, even though we may have reached a different decision than that rendered by the Board, it was the Board’s decision to make and not ours.

The burden was upon the appellant to demonstrate that the proof before the administrative tribunal was so nearly undisputed that fairminded men could not reach its conclusion. Williams v. Scott, Director, 278 Ark. 453, 647 S.W.2d 115 (1983). The question is not whether the testimony would have supported a contrary finding but whether it supports the finding that was made. Id. Whenever the record contains affirmative proof supporting the view of each side, we must defer to the Board’s expertise and experience. Fayetteville School Dist. No. 1 v. ABC Bd., 219 Ark. 89, 648 S.W.2d 804 (1983).

Here, the primary concerns of the parties opposed to the permit were lack of necessity for another liquor store; traffic congestion; general opposdon to liquor stores; safety considerations from increased crime and increased traffic; and parking problems. The area where the proposed store would be located is already heavily congested with parking problems and a liquor store already exists a block away. Therefore, it is difficult to see how the addition of this liquor store will suddenly introduce a dangerous element into the neighborhood. We hold that there was substantial evidence to support the Board’s action.

Affirmed.

Hays, J., not participating.


text:
    Odell WATSON v. STATE of Arkansas
    CR 82-39
    667 S.W.2d 953
    Supreme Court of Arkansas
    Opinion delivered April 16, 1984

      Petitioner, Pro Se.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petitioner Odell Watson was found guilty of rape and sentenced to a term of 40 years imprisonment in the Arkansas Department of Correction. We affirmed. Watson v. State, 277 Ark. 197, 640 S.W.2d 447 (1982). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 and requests appointment of counsel. The request for counsel is denied. There is no right to appointment of counsel in the preparation of a petition under Rule 37. Dyer v. State, 258 Ark. 494, 527 S.W.2d 622 (1975).

Petitioner first raises the issues of (1) whether he was informed of his Miranda rights; (2) whether he was denied his right to counsel before he gave his statement; and (3) whether the statement presented at trial was the same statement he gave to the police. On appeal we found that petitioner was read his rights. He is not entitled to raise the issue again under Rule 37. Houser v. State, 508 F.2d 509 (8th Cir. 1974); Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980). The remaining two issues could have been raised at trial or on appeal but were not. Rule 37 was not designated as a substitute for asserting error in accordance with the controlling rules of procedure. Swindler v. State, 272 Ark. 340, 617 S.W.2d 1 (1981). The rule does not permit a petitioner to raise a question which might have been raised at trial or on the record on direct appeal, unless the question is so fundamental as to render the judgment void and open to collateral attack. Neal v. State. In this Court, contentions not argued by the appellant on first appeal are waived. Collins v. State, 271 Ark. 825, 611 S.W.2d 182 (1981), citing Sarkco v. Edwards, 252 Ark. 1082, 482 S.W.2d 623 (1972). As neither ground would render the judgment in his case void, the issues must be considered waived.

Petitioner contends that his counsel was ineffective in that she advised him to testify in his own behalf "contrary to his wishes and contrary to his rights.” The accused has the right to choose whether to testify in his own behalf. Moore v. State, 244 Ark. 1197, 429 S.W.2d 122 (1968). Counsel may only advise the accused in making the decision; counsel may not compel the accused to testify. Petitioner here alleges that his attorney "told” him to testify which lead to his incriminating himself, but he also alleges that he asked to make a statement in the presence of his attorney and the arresting officer, apparently in lieu of testifying. It appears from the petitioner’s testimony at trial in which he in part contradicted the written statement that counsel was advising petitioner to testify if he wanted to contest the contents of the statement. Even if counsel’s advice caused petitioner to take the stand, there is nothing to indicate that she compelled him to testify. The decision to advise a client to testify is a tactical decision within the realm of counsel’s professional judgment. Even if a decision proves unwise, matters of trial tactics and strategy are not grounds for postconviction relief. Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973). Furthermore, counsel is presumed competent. Hoover v. State, 270 Ark. 978, 606 S.W.2d 749 (1980). To prevail on an allegation of ineffective assistance of counsel a petitioner must show by clear and convincing evidence that he was denied a fair trial by counsel’s conduct. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). Petitioner has not shown that his trial was unfair.

Petitioner next contends that counsel should have called his co-defendant Adric Garner, who was not tried with petitioner, to testify because Garner was an eyewitness to the crime and knew about the friendly relationship between petitioner and the victim. Assuming that Garner would have been willing to testify, the question of whether to call him was another tactical decision to be made by counsel. As such, the issue is not cognizable under Rule 37.

In our opinion on appeal we noted that counsel did not ask for an admonition after a witness mentioned that a doctor said the victim had been choked. Petitioner alleges that an admonition was requested and that counsel was ineffective in failing to file a petition for rehearing on the point. The record does not support the allegation. Counsel requested a mistrial which was denied. We upheld the trial court in that denial. Counsel did ask the court to tell the jury that the doctor did not say the victim was choked, but the court refused on the ground that it would amount to its commenting on the evidence. The court then, without counsel’s requesting an admonition, volunteered that an admonition would also amount to a comment on the evidence. As there was no request for an admonition, there was no error of fact or law on which to base a petition for rehearing.

Petition denied.


text:
    Donald WEBSTER v. STATE of Arkansas
    667 S.W.2d 955
    Supreme Court of Arkansas
    Opinion delivered April 16, 1984

      Raymond R. Abramson, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, Donald Webster, by his attorney, Raymond A. Abramson, has filed a motion for rule on the clerk.

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

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

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


text:
    Garland TRICE, Jr. v. CITY OF PINE BLUFF, ARKANSAS
    82-33
    667 S.W.2d 952
    Supreme Court of Arkansas
    Opinion delivered April 16, 1984

      Cross, Kearney & McKissie, by; Othello C. Cross, for petitioner.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for respondent.
   Per Curiam.

The petitioner was convicted in municipal court and appealed to circuit court where the case was tried de novo. The circuit court affirmed the conviction and fined the petitioner $100 on each count plus costs. That decision was appealed to this Court. We reversed and dismissed the charges and awarded the petitioner $394.50 in costs. Despite demands from the petitioner, the City of Pine Bluff has failed to satisfy the judgment. The petitioner sought a writ of garnishment in circuit court against the city. The clerk refused to issue the writ, stating that the underlying judgment was not valid. Petitioner asks this Court to issue the writ of garnishment or to order the circuit clerk to do so.

This matter is not properly before us. The petitioner has never attempted to obtain judgment in the trial court. We have appellate jurisdiction only, therefore we will not entertain a pleading which can only be filed in the trial court that rendered judgment. Hervey v. The Farms, Inc., 252 Ark. 881, 481 S.W.2d 348 (1972). Although we determine liability for costs, the trial court renders judgment. Hogue v. Hogue, 250 Ark. 102, 464 S.W.2d 67 (1971). The petitioner should seek relief in the circuit court which has the power to resolve this. Ark. Stat, Ann. § 33-102 (Repl. 1962), Kemp-Bradford VFW Post 4764 v. Wood, 262 Ark. 168, 554 S.W.2d 344 (1977).

Denied.


author: George Rose Smith, Justice.

text:
    James T. PLUNKETT v. ARKANSAS POWER AND LIGHT COMPANY
    83-294
    668 S.W.2d 8
    Supreme Court of Arkansas
    Opinion delivered April 23, 1984

      Robert G. Gilder and Michael Everett, for appellant.

      House, Wallace ir Jewell, P. A., by Philip E. Dixon and William Dean Overstreet, for appellee Arkansas Power and Light Co.

      Barrett, Wheatley, Smith ir Deacon, for appellee St. Francis Valley Lumber Co. and E. Ritter & Co.
   George Rose Smith, Justice.

In this action by the appellant for personal injuries, which comes to us as a tort case, the trial judge reluctantly let the case go to the jury, but after the trial he set aside a verdict for the appellant and granted the appellee’s motion for judgment notwithstanding the verdict. The only argument for reversal is that there was substantial evidence to support a finding of negligence on the appellee’s part.

In July, 1979, the plaintiff, James T. Plunkett, age 47, was a handyman available for carpentry and repair jobs. He was engaged by E. Ritter & Company to repair a cooling tower on top of a building in Marked Tree. Ritter had leased the building to the appellee, who used it as its local office. Two days before Plunkett was injured he had mentioned to the appellee’s construction foreman that he was going to repair the tower as soon as he finished the job he was working on.

Plunkett did not have a ladder long enough to reach the top of the building, which was 23 feet 3 inches high. On July 11 Ritter’s subsidiary sent one of its employees, Howard Lawrence, to the building with a metal extension ladder. Lawrence stayed to help Plunkett with the ladder. The ladder did not have with it the rope and pulley that can be used to slide one section of the ladder along the other section. The men put the two sections together on the ground, without measuring them, and tried to raise the ladder and “walk” it to the building. The ladder, as put together, was unnecessarily long. Plunkett was seriously injured when the ladder struck one of the power company’s transmission lines, which was 30 feet 9 inches above the ground and 13 feet 3 inches from the edge of the building on a diagonal line. The location of the lines complied with the National Electrical Safety Code’s minimum standards, which, according to the plaintiff’s expert witness, would have protected the workmen if they had had the proper equipment. (Ritter and its subsidiary were also defendants, but Plunkett has not appealed from a directed verdict in their favor.)

The trial judge’s disposition of the case was right. The appellant stresses the familiar rule that an electric company, owing to the nature of its business, must use a high degree of care in the “erection, maintenance, operation and inspection” of its equipment used in the transmission of electricity. Ark. Power & Light Co. v. McGowan, 227 Ark. 55 296 S.W.2d 420 (1956). Counsel also cite that case and Ark. Power & Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976), to support their argument that even though the lines in this case complied with the Code, there was still a jury question as to the appellee’s negligence in the location of the lines. In both these cases, however, the evidence was in conflict as to whether the power company had in fact complied with the Code. Here that fact is not in dispute, and we find no basis in the proof for the jury to find that the power company was nevertheless negligent in its installation or maintenance of the lines.

There was proof that at the time of the accident the power company had available a mounted bucket that could have been used to lift Plunkett to the top of the building and also had “sleeves” that could have been'placed on the wires to temporarily insulate them while Plunkett was repairing the tower. Plunkett, however, testified that he saw the wires and knew they were dangerous, but he thought he could get on the roof safely. Plunkett admitted that he used the ladder supplied by Ritter and did not ask the power company for any assistance in the matter.

It is nevertheless argued that the electric company’s duty to exercise a high degree of care required it to take steps to protect Plunkett, Ritter’s employee, by anticipating his presence and safeguarding him by means of the sleeves or the bucket. The company’s high, degree of care, however, applies to the installation and maintenance of its lines, as to which there is no basis for complaint. It is certainly common knowledge, shared by Plunkett himself, that electric wires are dangerous and are to be avoided. We find no reason to hold that the appellee, as the lessee of the building, had a peculiar duty to take extraordinary steps to protect a workman engaged in the commonplace job of using a ladder to reach the top of a small building. Our study of the abstracts and briefs discloses no substantial evidence to support a finding of negligence of the appellee’s part.

Affirmed.


text:
    Bobbie Jean CHILDRESS v. Vicky McMANUS, Personal Representative
    83-284
    668 S.W.2d 9
    Supreme Court of Arkansas
    Opinion delivered April 23, 1984

      Felver A. Rowell, Jr., for appellant.

      Gary Eubanks ¿r Associates, by: /. Lamar Porter, for appellee.
   John I. Purtle, Justice.

The chancellor held that a divorce announced from the bench at the close of trial was valid although the husband died before the decree was entered. Appellant wife argues the decree entered after the husband’s death was a nullity. We hold she is correct because ARCP Rule 58 plainly states a decree is effective only when entered as provided by Rule 79(a).

A hearing in the divorce proceeding was held on August 17, 1981, and the chancellor announced from the bench he was granting the divorce. The husband died on August 30, 1981. A decree was entered on October 6, 1981. The husband’s will was subsequently admitted to probate and his daughter was appointed personal representative of the estate. Both parties subsequently instituted affirmative proceedings to enforce the decree. Appellant obtained a new lawyer and filed an objection in the probate proceedings and a petition in chancery to declare the decree of a divorce a nullity. Both courts denied the petitions and upheld the decree of divorce which was entered after the death of the defendant husband. On appeal it is simply argued that the divorce decree was a nullity. We agree because ARCP Rule 58 is controlling.

The appellee argues the appellant should be estopped from denying the validity of the decree because she never objected to the statement by the court when the decision was announced at the close of the trial nor did she appeal from the decree which was entered. Further it is argued she relied upon the decree when she sought to cite the personal representative for contempt of court in refusing to abide by the terms of the decree. We considered the matter of estoppel in Padgett v. Bank of Eureka Springs, 279 Ark. 367, 651 S.W.2d 460 (1983) and held:

“(1) the party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel had a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former’s conduct to his injury.”

It is obvious that both parties knew the facts and there is no argument or a detrimental reliance. We do not believe the estoppel doctrine is applicable to the facts of this case.

The second argument relied upon by the appellee is that appellant failed to timely appeal from the entry of the decree within the statutory 30 day period. Unless the decree is void the 30 day period would be binding. In Greenstreet v. Thornton, 60 Ark. 369, 30 S.W. 347 (1895), this court held:

“The defendant named in this proceeding was dead, and the decree based on a summons against him . . . was of no validity whatever. [Citations omitted.] The contention of appellant that the decree in question cannot be made the subject of a collateral attack is not well taken, for the decree is void. A void judgment or decree is a mere nullity, and has no force, either as evidence or by way of estoppel.’ [Citations omitted.]”

The holding that a void judgment may be attacked collaterally was reaffirmed in Chester v. Arkansas State Board of Chiropractic Examiners, 245 Ark. 846, 435 S.W.2d 100 (1968).

Death of a party to a divorce proceeding takes away the jurisdiction of the chancery court. Edgil v. Ragsdill, 256 Ark. 958, 511 S.W.2d 625 (1974). A judgment rendered without jurisdiction is void. Cloman v. Cloman, 229 Ark. 447, 316 S.W.2d 817 (1958). ARCP Rule 58 states: “[a] judgment or decree is effective only when so set forth and entered as provided in Rule 79 (a).” The comment to this rule points out that the date of entry, as opposed to the date of rendition, is the effective date for appeal purposes. However, the date of entry is not controlling in the present case because death extinguished the jurisdiction of the court. It is not necessary to appeal from a void order because it never became effective. A void order is subject to collateral attack. Pendergist v. Pendergist, 267 Ark. 1114, 593 S.W.2d 502 (1980).

The case is reversed and remanded to the trial court with directions to proceed in a manner not inconsistent with this opinion.


author: Robert H. Dudley, Justice. P. A. Hollingsworth, Justice,

text:
    Jean B. PORTER v. Genevieve Ilfrey LINCOLN
    83-309
    668 S.W.2d 11
    Supreme Court of Arkansas
    Opinion delivered April 23, 1984
    [Rehearing denied May 29, 1984.]

      Drew & Mazzanti, by: W.H. Drew, for appellant.

      John Lloyd Johnson, Jr., for appellee.
   Robert H. Dudley, Justice.

Genevieve Lincoln, appellee, filed suit alleging that the affections of her husband, Charles Lincoln II, had been alienated by Jean B. Porter, appellant. A jury trial resulted in an award of $100,000.00 in compensatory damages and $25,000.00 in punitive damages. We find no reversible error in the eleven points of appeal. Jurisdiction is in this court under Rule 29(1) (o).

Appellant first contends that the trial court should have directed a verdict in her favor because the appellee failed to prove she was validly married to Lincoln. The appellee testified that she and Lincoln were married in Benton in 1954 or 1955 but that she had misplaced the marriage license. However, there was a good deal of uncontroverted evidence introduced at the trial tending to establish the marriage of Charles and Genevieve Lincoln. The couple had lived in the same home until their separation in September, 1980; they had continuously held themselves out to be married and were know as Mr. and Mrs. Lincoln; two children were born to the couple; and the couple adopted a child born to appellee from her prior marriage.

Appellant’s argument is based almost entirely on the failure of appellee to prove the couple was married on the date alleged in the complaint, June 30, 1954. However, appellee is not held to such a strict standard of proof. We previously addressed the issue of the requisite proof of marriage in a case of this kind. In Roach v. Scott, 157 Ark. 152, 247 S.W. 1037 (1927), we stated:

The law as to proof of marriage in actions for alienation of affections is correctly declared in Ency. of Evidence, vol. 1, p. 756, as follows: “In an action for alienating the affections, direct proof of a formal marriage is not necessary, the general rule being that evidence of cohabitation, reputation, and acknowledgment by the parties, a holding themselves out to the world as husband and wife, is a sufficient proof of the fact of marriage. . .”

We find no error in the trial court’s refusal to direct a verdict for the appellant on this issue.

At trial, the appellee sought to show a steady flow of cash from Lincoln to appellant. A bank officer and a bookkeeper testified that checks were given by Lincoln to appellant. Appellee testified that she hoped to regain some of the money that her husband had funneled to appellant. The appellant moved for a directed verdict for the “reason that the evidence herein of monies flowing is not a proper measure of damages.” The trial court refused to grant the directed verdict and appellant assigns the refusal as a point of appeal. We find no merit in the point. Appellee did not seek damages solely for "monies flowing” from her husband to appellant. She sought $250,000 for loss of consortium and loss of her husband’s affections. In Gibson v. Gibson, 244 Ark. 327, 424 S.W.2d 871 (1968), we stated that the "gist of an action such as this is loss of consortium, which includes the husband’s society, companionship, love and affection, and aid.”

Appellant made a motion in limine to exclude evidence prior to Novemebr 14, 1979, and subsequent to November 14, 1980, the date the complaint was filed. On appeal she claims the trial court erred by admitting evidence of events which occurred after November 14, 1980. The trial judge, in denying the motion, stated that “the evidence subsequent to that period is relevant only to show a course of conduct on behalf of the parties. But I think it is admissible so I’m going to deny the motion on behalf of the defendant.”

In cases of this type, we have approved the admissibility of evidence subsequent to the accrual of the cause of action for limited purposes. In Hardy v. Raines, 228 Ark. 648, 310 S.W.2d 494 (1958), we held that testimony of events subsequent to the divorce of appellee and his wife was admissible to show the state of feelings between appellant and appellee’s wife prior to the divorce, as such evidence may shed light on the conduct causing the alleged alienation of affections. In Gibson v. Gibson, 244 Ark. 327, 424 S.W.2d 871 (1968), we cite Hardy for the proposition that testimony of post-divorce events is to be considered only as an aid to determining the pre-divorce relationships.

In the case at bar, testimony was introduced concerning events subsequent to the filing of the complaint. This testimony included evidence of acts subsequent to the divorce of appellee and Lincoln. The trial judge was obviously aware the evidence was admissible only for limited purposes and did not commit error by admitting the evidence. A limiting instruction would have been proper under the circumstances but one was not sought.

Appellee inquired, over appellant’s objections, about stocks, certificates of deposit, and the bank records of appellant. Appellant contends that there was error in the admission of this testimony because appellant’s wealth, or lack of wealth, had no probative worth in determining whether appellant caused an alienation of the affections of appellee’s husband. We find the following passage from Hardy, supra, citing 27 Am. Jur. § 565, to be controlling:

Evidence of the financial condition of the defendant, of how much or how little wealth he has, generally is not admissible in an alienation of affections suit ... as affecting compensatory damages to be awarded . . . Where exemplary or punitive damages are recoverable, evidence of the wealth or financial condition of the defendant is admissible, and is a proper element for the jury to consider in finding such damages, for it is obvious that what would be of no consequence to a rich man might be ruinous to a poor man.

The reasoning of the above passage applies with equal force when the defendant is a woman. Appellee sought punitive damages in this case, and under these circumstances, the financial status of appellant is admissible. Our holding on this point should be narrowly read for, on a number of occasions, we have held that where the issue of punitive damages is erroneously submitted to a jury, together with the defendant’s financial condition, an award of compensatory damages is tainted and cannot stand. KARK-TV v. Simon and Smith, 280 Ark. 228, 656 S.W.2d 702 (1983). Also, this court has not squarely addresed the issue of whether punitive damages are recoverable in an alienation of affections suit and, if recoverable, what standard of proof will be required.

The next point may be quickly dismissed. Appellant’s attorney asked Charles Knox Lincoln, the son of appellee and Lincoln, how many alienation of affections suits his mother had filed. Appellee’s attorney objected and the judge asked the witness and attorneys to go into chambers so that he could hear some testimony and arguments of counsel before ruling. Charles Knox Lincoln and appellee were both questioned. The court took the matter under advisement and did not rule while in chambers. The witnesses, the attorneys and the judge then returned to the courtroom with the matter still under advisement. Appellant’s counsel did not pursue the line of questioning but, instead, called the next witness. The assertion of error was not sufficiently preserved to makes it available in this court. Sunray Sanitation, Inc. v. Pet Incorporated, 249 Ark. 703, 461 S.W.2d 110 (1970).

Appellant contends that instruction No. 6 constituted a comment on the evidence. The last part of one sentence of the instruction, standing alone, can be construed to erroneously assume a disputed fact. The sentence is: “You are further instructed that if you find from the evidence in this cause that the home life of the plaintiff and her husband was at times unpleasant, nevertheless, this would not justify the defendant in voluntarily alienating the affections of Charles Lincoln to either separate or remain away from Genevieve Lincoln.” The assumption of a disputed fact in an instruction is erroneous. Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958). However, it was harmless error in this case because the other instructions make it clear that the disputed fact was not assumed but, instead, was for the jury to decide. For many years we have held that under these circumstances we do not reverse. Brinkley Car Works & Mfg. Co. v. Cooper, 75 Ark. 325, 87 S.W. 645 (1905); St. Louis I. M. & S. Ry. Co. v. Brogan, 105 Ark. 533, 151 S.W. 699 (1912) and Fort Smith Light & Traction Co. v. Schulte, 109 Ark. 575, 160 S.W. 855 (1913). Instructions are not to be viewed in isolation but are to be considered as a whole to ascertain whether the law applicable to the case is correctly declared. Peters v. State, 248 Ark. 134, 450 S.W.2d 276 (1970).

Appellant next contends that the trial court erred in giving instruction No. 9 because there was no evidence to support the giving of the instruction. The instruction is based on cases such as Alexander v. Johnson, 182 Ark. 270, 31 S.W.2d 304 (1930), and is as follows:

If Jean B. Porter induced Charles Lincoln to leave his wife, or encouraged him to remain away from her, or harbored and protected him from her, she did so at her peril and the burden is upon her to show good cause for her conduct and good faith in it.

There was ample evidence for the court to submit the instruction. A bookkeeper testified that from 1975 through 1982 Lincoln gave appellant $18,073.05 or an average of $2,259.13 per year. Lincoln admitted that he and appellant had sexual relations over the past thirteen or fourteen years; that together they traveled to foreign countries as well as various places in the United States. Appellant testified that she and Lincoln spent time together at an exclusive resort in Ponte Vedra, Florida, registered together under the name of Mr. and Mrs. Lincoln. Appellant also admitted that Lincoln gave her a gold Rolex watch, a diamond pendant, and a gold chain bracelet. In addition, there was other disputed testimony. The lack of a specific statement by appellant encouraging Lincoln to separate from his wife does not mean that appellant did not alienate the affections of Lincoln. Her actions speak for themselves. See Hardy v. Raines, 228 Ark. 648, 310 S.W.2d 494 (1958).

Appellant’s next objection goes to instruction No. 16. The instruction is as follows:

In addition to compensatory damages for any actual loss that Genevieve Lincoln may have sustained, she also asks for punitive damages. Punitive damages may be imposed in addition to any compensatory damages awarded to punish a wrongdoer and to deter others from similar conduct. Before you can impose punitive damages you must find that Jean B. Porter knew or ought to have known in the light of surrounding circumstances, that her conduct would naturally or probably result in injury and that she engaged in such conduct wilfully, or in reckless disregard or conscious indifference to the consequences, from which malice may be inferred. In addition, malice may be inferred from a finding that Jean B. Porter and Charles Lincoln engaged in illicit sexual intercourse. You are not required to assess punitive damages against Jean B. Porter, but you may do so if justified by the evidence.

The appellant’s objection to the giving of this instruction on punitive damages was: “It permits wholly and solely a finding on sexual intercourse. We object to it generally also.” The objectionable sentence, the next to last one, appears to be taken from our case of Alexander v. Johnson, 182 Ark. 270 at 275, 31 S.W. 304 (1930), where we stated: “Where the alienation of husband’s affections is by means of adultery, malice in law is inferred from such wrongful conduct.” The instruction was a correct statement of law and we will not reverse on the objection made. This point also should be construed narrowly because there was no motion for a directed verdict on the issue of punitive damages and we do not reach the issue of whether punitive damages were proper. In addition, the objectionable sentence constituted a comment on the evidence. See Thiel v. Dove, 229 Ark. 601, 317 S.W.2d 121 (1958). The objection raised did not present the trial judge with the opportunity to rule on either of those issues.

The appellant also complains that the trial court refused to give two instructions requested by the appellant. Both were repetitious. A trial court is not required to give repetitious instructions. Vanlandingham v. Gartman, 236 Ark. 504, 367 S.W.2d 111 (1963).

Affirmed.

Adkisson, C.J., and Hickman and Hollingsworth, JJ., dissent.

P. A. Hollingsworth, Justice,

dissenting. The record in this case shows the alienation between the Appellee and her former husband was of long duration. It is apparent that an encounter between Appellee, Appellee’s husband and Appellant at the motor freight terminal in 1973 was the first disclosure to Appellee of any alienation of affection. The cause of action, if any existed, accrued at that time. Section 37-201 provides that a cause of action for alienation of affections shall be commenced one year after the cause of action shall accrue, and not thereafter.

I would reverse and dismiss.

Adkisson, C.J., joins in this dissent.