text:
    Donald Thurman BREWER v. STATE of Arkansas
    CR 80-107
    608 S.W. 2d 363
    Supreme Court of Arkansas
    Opinion delivered December 1, 1980

      E. Alvin Schay, 'State Appellate Defender, by: Jackson Jones, Deputy State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of capital felony murder pursuant to Ark. Stat. Ann. § 41-1501 (Repl. 1977) and aggravated robbery pursuant to Ark. Stat. Ann. §§ 41-2102 and 41-2103 (Repl. 1977). He was sentenced to life without parole on capital murder and ten years on aggravated robbery.

The appellant argues eight points for reversal, and we will deal with them separately as we proceed through the opinion. We find prejudicial error on grounds which will be later set out and remand for a new trial.

Appellant and two others were charged with capital murder and aggravated robbery as a result of an occurrence at Charlotte, Arkansas, on December 14, 1978. Appellant and one of the other codefendants went to the store operated by Morris Lillard and in the course of robbery took the life of Mr. Lillard by the use of a firearm. The following day the appellant and the same codefendant went to Tucson, Arizona, where they were arrested in a mobile home by the Arizona police on December 18, 1978. The Arizona police were acting on the authority of an Arizona statute which enabled them to make an arrest on receiving information from the authorities in another state that the person to be arrested was charged with a crime which carried a penalty of more than one year in prison. Following his arrest, appellant gave a confession to the Arizona police. An attorney was appointed for the appellant shortly after the confession was made. He subsequently waived extradition and was returned to Arkansas. He was tried in Heber Springs on a change of venue from Batesville. Prior to his trial a motion to suppress the confession was overruled. The confession was subsequently introduced at trial and was corroborated by the Arizona officer who was present during the time the statement was taken. A codefendant’s statement was excluded when it was offered by the appellant on his behalf during the trial. The appellant took the stand and in effect testified that although he knowingly went to the store for the purpose of robbing Mr. Lillard he did not take part in the actual murder of the victim. The arguments for reversal on appeal relate to the actual trial proceedings.

I.

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE INCRIMINATING STATEMENTS BY THE APPELLANT WHICH WERE NOT VOLUNTARY, WERE OBTAINED IN VIOLATION OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS, AND WERE TAINTED BY AN ILLEGAL ARREST.

The Arizona officer testified that he gave the appellant his Miranda warning immediately after entering the mobile home and making the arrest. The officer stated they were invited into the mobile home after knocking on the door. The officer further testified that at one point the appellant appeared to become somewhat confused and he stopped his questioning and again went through the Miranda warning process. During the approximately one hour in which the appellant was questioned, he received the Miranda warning three times.

Julie Lauber, an attorney with the Pima County Public Defender’s office, interviewed the appellant after the statement and stated he found him to be incoherent, unintelligent and possibly under the influence of drugs.

Dr. Lewis Britton, a psychiatrist, testified he felt appellant was under the influence of drugs and/or alcohol and was suffering from long-term toxic poisoning effects of drugs and/or alcohol. He felt the appellant demonstrated an organic brain syndrome.

Dr. Rosendale, psychiatrist for the state, concluded that the appellant was not under the influence of drugs or alcohol, was not suffering from organic brain syndrome, and that he made a voluntary and knowing waiver of his rights in giving the statement to the police.

When the voluntariness of a confession is dependent upon the credibility of the witnesses, we must defer to the superior position of the trial judge for a resolution of the conflict and determination of the fact question. Grant v. State, 267 Ark. 50, 589 S.W. 2d 11 (1979). We have many times held that on appeal this Court reviews the evidence and makes an independent determination of the ultimate issue of voluntariness based upon the totality of the circumstances. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). See also Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977). In viewing the totality of the circumstances in this case, in addition to the testimony given by the appellant when he took the stand in his own behalf, we are of the opinion that the trial court did not err in admitting the statements in question.

II.

THE TRIAL COURT ERRED IN REFUSING TO EXCUSE FOR CAUSE TWO PROSPECTIVE JURORS WHO INDICATED THAT THEY COULD NOT CONSIDER AGE AND/OR OTHER MITIGATING FACTORS IN DETERMINING THE SENTENCE TO BE IMPOSED ON THE APPELLANT IF HE WERE FOUND GUILTY OF CAPITAL MURDER.

The voir dire examination of the jurors went on exhaustively with at least two jurors making equivocal statements that they would or would not consider the appellant’s age or his mental condition in determining the sentence to be imposed. In other words, they would not abide by the court’s instruction because they felt if the appellant was old enough to commit the crime, he was old enough to suffer the consequences. It would serve no useful purpose to detail the many times contradictory answers were given by these two jurors. It is well summed up by the court in making the final decision on one of the jurors when the court stated:

I’m not going to excuse her for cause. I don’t think she understands properly, so I’m going to leave it like it is.

It appears that if the court or one of the attorneys had put the question to the juror early in the voir dire as to whether the juror would consider the full range of the penalties on the guilt or innocence stage and whether they would consider the mitigating circumstances in the sentencing stage, that the answer should have been binding and all the vacillating thereafter could have been avoided. It is not necessary to question a juror repeatedly when they have once expressed a clear opinion as to whether they would or would not consider all relevant matters. Although we think at least one of the jurors should have been excused for cause, we do not find it prejudicial error for the reason that she was challenged peremporily by the defense. Thereafter, there was no showing that the appellant had to accept another juror who was unacceptable after they had exhausted their peremptory challenges. In any event, questions relating to the death penalty became moot when such penalty was not imposed.

III.

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE TESTIMONY BY MEMBERS OF THE VICTIM’S FAMILY WHICH WAS IRRELEVANT OR THE RELEVANCE AND PROBATIVE VALUE OF WHICH WERE SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE TO THE APPEULANT.

The widow of the victim was called to the stand to identify the cash register and to show the decedent’s habits and routine. Appellant agreed to stipulate to the testimony of the widow and to the truthfulness thereof. However, the court ruled that the state had the right to put her on but cautioned against anything inflammatory. Her testimony included the length of their marraige and the manner in which they operated the store. She broke into tears and was obviously emotionally upset. The three children of the victim testified about the normal habits of the deceased, and one of them testified that she arrived at the store and observed her “daddy’s” body and further that nothing was moved until the police arrived. She also identified pictures as being those of her father.

The appellant argues that this testimony by the family should have been excluded under Uniform Rules of Evidence, Ark. Star. Ann. § 28-1001 (Repl. 1979), Rule 401. It is the opinion of the majority of the Court that the testimony of the family members was properly allowed. Although it may have been inflammatory to an extent, it was proper to allow the state to prove its case as fully as it could. Rule 401 states:

“Relevant evidence” means evidence having any tendency to make the exitence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
Rule 406 (a) provides:
Admissibility. Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

The trial court has the discretion to determine the relevancy of evidence and its admissibility. This Court will not overturn that discretion absent a clear abuse thereof. Hamblin v. State, 268 Ark. 497, 597 S.W. 2d 589 (1980). We are not unaware of appellant’s reliance upon Walker v. State, 239 Ark. 172, 388 S.W. 2d 13 (1965). However, the majority distinguishes the Walker case from the present case inasmuch as in Walker, there was no effort to prove the habit or routine practice of the decedent nor any fact in issue. The majority feels that all of the evidence presented by the members of the family was either for the purpose of showing a proper element of die offense or to show the habit and routine of the victim. Therefore, we do not find the admission of this testimony to be reversible error.

IV.

THE TRIAL COURT ERRED IN REFUSING TO ALLOW TESTIMONY CONCERNING A STATEMENT MADE TO POLICE OFFICERS BY THE APPELLANT’S ACCOMPLICE, WHO WAS UNAVAILABLE AS A WITNESS.\

Appellant sought to introduce evidence that a police officer from Arizona would testify that David Weaver, an accomplice, told the officer during an interview that the appellant used a pistol as the murder weapon. The evidence produced at the trial indicated that a rifle was used to fire the fatal shots. Appellant sought to support the officer’s statement by the accomplice; however, he was unable to do so because the accomplice invoked the Fifth Amendment. Appellant argues that \ the accomplice then became unavailable at a witness. He relies upon Uniform Rules of Evidence, Ark. Stat. Ann. § !28-1001 (Repl. 1979), Rule 804 (a) (1). There is no question but that the accomplice became unavailable pursuant to this rule. The question then is whether such testimony is available to the appllant. Thus, Rule 804 (b)(3) comes into play. This rule states:

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interset, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception.

Although Rule 804 (b)(3) defines hearsay exceptions, it must be noticed that the concluding sentence pertains to the situation where the statement or confession is offered against the accused. In this case it was offered on behalf of the accused. Therefore, the proffered testimony does not come under the plain language of the last sentence of Rule 804 (b) (3), which is the exception to the exception. Appellant further argues the case of Welch v. State, 269 Ark. 208, 599 S.W. 2d 717 (1980), is controlling in this case. We do not agree that Welch supports appellant’s argument. In Welch we stated:

By the explicit language of the Rule this particular statement was not admissible unless corroborating circumstances clearly indicate its trustworthiness. That condition is of primary importance, for without it an accused could fabricate a tale that he met a stranger on the street who admitted having comitted the offense on trial. Other witnesses could also be called to testify that the stranger made the statement.

Thus, it seems to us that Welch holds squarely against the appellant’s argument. Therefore, it was hearsay, and we cannot say that the corroborating circumstances clearly indicate the trustworthiness of the statement. We do not find the court erred in rejecting this evidence.

V.

THE TRIAL COURT ERRED IN REFUSING TO GIVE THE APPELLANT’S REQUESTED JURY INSTRUCTIONS ON LESSER INCLUDED OFFENSES.

Appellant requested the court to give instructions on the lesser included offenses of first degree murder, second degree murder, manslaughter and negligent homicide, as well as instructions concerning the lesser included offenses in general and the punishment for non-capital homicide. The court refused to give these instructions. In the very recent case of Robinson v. State, 269 Ark. 90, 598 S.W. 2d 421 (1980), this Court held it was reversible error to refuse to give instructions on the lesser included offense of second degree murder where the appellant was charged with capital murder. In Robinson, as here, the defense of insanity of diminished mental capacity was argued. We have held that where there is the slightest evidence to warrant such an instruction, it was error to refuse to give it. King v. State, 117 Ark. 82, 173 S.W. 852 (1915); Walker v. State, 239 Ark. 172, 388 S.W. 2d 13 (1965); and Westbrook v. State, 265 Ark. 736, 580 S.W. 2d 702 (1979). No right has been more seriously protected by this Court than the right of an accused to have the jury instructions on lesser offenses included in the more serious offense charged. Caton & Headley v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972).

There was evidence that the appellant was suffering from mental disease or defect or drug intoxication at the time of the offense. Had the jury been given an opportunity to decide between murder in the first degree and capital felony-murder they may have chosen the former. Under the instructions given, they were not permitted to find appellant guilty of murder in the first degree. Also, there was some evidence, however slight, that the appellant did not commit the homicidal act nor solicit, command, induce, procure, counsel or aid in its commission. Even though it was admitted that appellant was armed with a deadly weapon and knew that his accomplice was also armed, the jury could have found appellant guilty of murder in the first degree and not guilty of capital murder. It seems to us that the trial court’s ruling that there was no evidence to indicate a lesser degree of murder was error. We think this error was prejudicial and that the evidence as presented would at least support giving the instruction on murder in the first degree. Upon retrial, the evidence may not be the same and may require different instructions concerning lesser included offenses.

VI.

THE TRIAL COURT ERRED IN REFUSING TO RULE THAT ARK. STAT. ANN. § 41-1501 (REPL. 1977) IS UNCONSTITUTIONAL IN THAT IT PROVIDES AN “AFFIRMATIVE DEFENSE’’ WHICH IM-PERMISSIBLY SHIFTS THE BURDEN OF PROOF TO THE DEFENDANT WITH RESPECT TO AN ESSENTIAL ELEMENT OF THE OFFENSE OF CAPITAL MURDER.

Appellant is correct in stating that the state has the burden of proof throughout the trial and this burden never shifts. However, appellant argues that the affirmative defense set out in Ark. Stat. Ann. § 41-1501 (2) (Repl. 1977) in actuality shifts the burden to the defendant with respect to an essential element of the offense. He argues this shifting of the burden when an affirmative defense is relied upon violates the rules set forth in Mullaney v. Wilbur, 421 U.S. 684 (1975). We considered the matter of shifting the burden in an affirmative defense case in Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977), where we stated:

We do not view the court’s instruction here as an erroneous one since it does not change the burden of proof as to the essential elements of the crime which always remain on the State; only the burden of persuasion as to the affirmative defense is placed on the appellant.

There would be no question that an affirmative defense which would require the appellant to testify to establish what is actually an element of the offense would be in violation of the Fifth Amendment. The question then presented is whether the affirmative defense in this case in practical application requires the accused to take the stand in the matter of proof on his affirmative defense. We cannot answer the question in this case due to the manner in which the evidence has been presented. Therefore, we are unable to say that § 14-1501 as applied in this case shifts the burden to prove any element of the offense to the accused. Therefore, we do not find prejudicial error to have occurred.

VII.

THE TRIAL COURT ERRED IN ADDING TO AMCI 401 (ACCOMPLICES - DEFINITION AND JOINT RESPONSIBILITY) THE FOLLOWING SENTENCE: “THE PUNISHMENT FOR AN ACCOMPLICE IS THE SAME AS THAT OF A PRINCIPAL.”

AMCI 401 does not include the sentence added by the court. The Court added the sentence: “The punishment for an accomplice is the same as that of a principal.” Appellant timely objected. In our Per Curiam of January 29, 1979, wherein we adopted the AMCI instructions, we stated:

If Arkansas Model Criminal Instructions (AMCI) contains an instruction applicable to a criminal case, and the trial judge determines that the jury should be instructed on the subject, the AMCI instruction shall be used unless the trial judge finds that it does not accurately state the law. If that event, he will state his reasons for refusing the AMCI instruction. . . .

Even though the jury was entitled to an instruction concerning an accomplice, this was not the place in the trial when it should have been given. Also, it is a misstatement of the law as it says the punishment for an accomplice is the same as that of a principal when in fact the law states that an accomplice may be punished the same as a principal. Also, he could receive a sentence less than the principal.

We find the added sentence constituted prejudicial error in this case.

VIII.

THE TRIAL COURT ERRED IN REFUSING TO SUSTAIN THE APPELLANT’S OBJECTIONS AND MOTIONS FOR MISTRIAL BASED UPON REMARKS BY THE PROSECUTOR DURING CLOSING ARGUMENT WHICH WERE NOT BASED ON THE EVIDENCE, WHICH CONSTITUTED APPEALS TO THE PASSIONS AND PREJUDICES OF THE JURY, AND WHICH CONSTITUTED ERRONEOUS STATEMENTS OF THE LAW.

The prosecutor made remarks relating to the testimony of the members of the family. The appellant objected to these remarks as being outside the record. Since the majority holds the testimony of the family members was proper, then it follows that the remarks by the prosecutor concerning these matters would have a basis in the record and consequently did not result in prejudicial error. However, the prosecutor did attempt to explain Ark. Stat. Ann. § 41-1502 (2) (Repl. 1979), the affirmative defense to capital murder, to the jury. We find the remarks by the prosecutor relating to the affirmative defense erroneous. It appears that he gave an improper explanation of the affirmative defense. There is always a danger in attempting to explain a complicated instruction to the jury. Therefore, an attorney does so at his own peril when he attempts to comment on the law contained in instructions which have been read to the jury.

Since this is not likely to occur on retrial, we will not go into the matter any further at this time. However, we will state that closing arguments should be confined to the questions in issue, the evidence introduced, and all reasonable inferences and deductions which may be drawn therefrom. Williams v. State, 259 Ark. 667, 535 S.W. 2d 842 (1976).

Reversed and remanded.


source: Caselaw Access Project

author: John F. Stroud, Justice.

license: Public Domain

text:
    Ricky YORK and Lillian YORK v. Mickey Ronny YOUNG
    80-249
    608 S.W. 2d 20
    Supreme Court of Arkansas
    Opinion delivered December 1, 1980

      Guy Jones, Jr,, for appellants.

      Laser, Sharp & Huckabay, P.A., for appellee.
   John F. Stroud, Justice.

On November 29, 1977, the .1977 Ford pick-up truck owned by appellants and being driven by Lillian York, one of the appellants, was hit from the rear by a vehicle knocked into her by a school bus driven by appellee. Alleging that the collision resulted from appellee’s negligence and that Lillian York suffered severe and permanent injuries, appellants filed suit claiming a total of $39,000 in damages, which included $4,000 for damages to the truck and $10,000 sought by Ricky York for his wife’s medical bills and his loss of consortium. Trial was held on February 7, 1980, during which appellee was allowed, over appellants’ objection, to bring out evidence of the existence of insurance coverage on appellants’ truck. The jury found for appellants and judgment was entered in the amount of $2,062 for appellant Lillian York and $1,000 for appellant Ricky York. Appellants bring this appeal and allege that the trial court erred in allowing appellee to intentionally adduce evidence of the insurance coverage on their pick-up. Finding no error in the ruling of the trial court, we affirm the judgment.

The sole question here is whether a defendant may bring out the existence of collision insurance coverage when the plaintiff testifies that he could not afford to have all of the damage to his vehicle repaired. Both parties acknowledge that, generally, it is improper in automobile accident cases for either party to introduce or elicit evidence of the other party’s insurance coverage. This court has often held that the unnecessary injection of the existence of insurance into a case is reversible error. Pickard v. Stewart, 253 Ark. 1063, 491 S.W. 2d 46 (1973); Strahan v. Webb, 231 Ark. 426, 330 S.W. 2d 291 (1959); Pekin Stave & Manufacturing Co. v. Ramey, 104 Ark. 1, 147 S.W. 83 (1912). We have also said that the injection of insurance coverage is not proper unless it is relevant to some issue in the case. Pickard, supra; Industrial Farm Home Cas. Co. v. McDonald, 234 Ark. 744, 355 S.W. 2d 174 (1962).

On direct examination Mr. York testified as to the various repairs done to his vehicle, but he also stated that damage done to the frame, shock absorbers and front end alignment was still uncorrected. He said the repair bill was between $550 and $600, but that in his opinion the difference in value of the truck before and after the accident was $3,000. Mr. York stated on cross-examination that the repairs done were all that he could afford and there was work to be done that he would have had done if he had been able to afford it. At this time a discussion was had in chambers, wherein counsel for appellee sought leave of the court to bring out on further cross-examination the existence of Mr. York’s collision insurance to controvert his testimony that the truck had not been fully repaired due to a shortage of personal funds, when in fact insurance proceeds could have been used to cover the repairs. After each side presented its position on this question, the trial court ruled as follows:

I do believe that this party [appellant] is attempting to use the insurance exclusionary rules to take advantage of the rule that we exclude the evidence of insurance in cases, and I am prone to allow the defense attorney to go in the insurance with him because of that. The rule was put there for a purpose so as not to influence unduly one way or another a jury, but it should nto be used in an effort to mislead a jury or to give any kind of undue advantage to a party’s testimony and certainly a party shouldn’t be allowed to use that rule to his own benefit contrary to what the truth of the matter was.

Counsel for appellee then proceeded to question Mr. York concerning the collision insurance coverage he had on his truck, and he admitted that whatever damages were sustained in the accident, he could have had paid under that insurance policy with the exception of $100 due to the $100 deductible provision in his policy.

We do not think the trial court erred in allowing counsel for appellee to cross-examine Mr. York about his insurance coverage. Mr. York’s testimony on direct examination that he could not afford to have the truck fully repaired was misleading to the jury, invited the rebutting questions, and made them relevant to the issues in the case. Finding no error in the ruling of the trial court, we affirm the judgment.

Affirmed.


author: Richard L. Mays, Justice.

text:
    Lula ORSBY v. Thelma Childs McGEE
    80-245
    608 S.W. 2d 22
    Supreme Court of Arkansas
    Opinion delivered December 1, 1980

      Wilson, Bell & Neal, by: Kathleen Bell, for appellant.

      Schieffler & Yates, by: Henry L. Yates, for appellee.
   Richard L. Mays, Justice.

This is an appeal from a judgment in a personal injury action in which the only assignment of error is that the evidence is not sufficient to support the verdict.

Appellant, Mrs. Lula Orsby, filed suit in Phillips County Circuit Court against appellee, Mrs. Thelma McGee, alleging that she sustained personal injury and property damage as a result of appellee’s negligent operation of her automobile. Appellee answered the complaint, denying any negligence, and counterclaimed against appellant for personal injury and property damage allegedly sustained as a proximate result of appellant’s negligence.

The case was tried before the circuit judge sitting as a jury. Appellant testified that on April 30, 1976, at approximately 4:30 p.m., she was driving her automobile in the lane nearest the center line in a westerly direction on Highway #49 in Helena, Arkansas, when she stopped to turn left and was struck in the rear by a vehicle driven by appellee.

Appellee’s testimony was in direct conflict with appellant’s. She testified that she was driving on the inside lane traveling west on Highway #49 when appellant passed her on the right, pulled directly in front of her and stopped, causing appellee to collide into the rear end of appellant’s vehicle. Appellee’s testimony was substantiated by the testimony of her teenage son who testified that appellant almost struck his mother’s car on the passenger side as appellant passed ahead of appellee, pulled in front of her and abruptly stopped, causing the collision.

Although there were no other witnesses to the accident, a police officer, in response to appellant’s counsel’s questions concerning any statement by appellee at the accident scene, testified:

I believe she stated that she had just left the hospital drive — if I’m not mistaken, and she was proceeding west on Oakland [Hwy. #49], and at the scene, I believe the only thing that she told me was she just looked and there she was because she had a child of hers in the car, and she was upset. . . .

Appellee denied giving any statement to the police officers and consistently adhered to her version of the accident. The trial court, apparently disbelieving the testimony of appellant, held in favor of the appellee on the complaint and counterclaim but reduced the amount of appellee’s judgment because of contributory negligence.

In reviewing the sufficienty of the evidence on appeal to support the decision of a trial judge sitting as a jury, we consider the evidence in the light most favorable to the appellee and affirm unless the trial court’s decision is clearly erroneous. Ark. R. Civ. P. 52, Taylor v. Richardson Const. Co., 266 ark. 447; 585 S.W. 2d 934 (1979).

Appellant essentially contends that the police officer’s testimony established her version of the facts and since he was the only disinterested witness concerning liability, his testimony could not be disregarded. Although we agree that the officer’s testimony was more favorable to appellant that appellee, we do not believe that it established appellant’s version of the accident. His testimony did not establish that appellant was not negligent, but merely that appellee might have been, a fact duly noted by the trial judge since he reduced appellee’s judgment because of it. Moreover, even if the officer’s testimony concerning appellee’s admission had been more conclusive on liability, the court could still have conceivably disregarded it since the appellee denied making any statement to him. See Western Union Telegraph Co. v. Baltz, 175 Ark. 167, 299 S.W. 377 (1927). It must be remembered that the credibility of the witnesses is determined by the fact finder, not this Court. Box v. Dudeck, 265 Ark. 165, 578 S.W. 2d 567 (1979). It is the fact finder who listens to the testimony and observes the demeanor of the witnesses. The disinterest of a witness is simply one factor among many which may be taken into consideration in assessing credibility. Although, as fact finders, we might have made a different decision than the trial judge below, we cannot say that the decision which was made was clearly erroneous.

Affirmed.


author: Ernie E. Wright, Chief Judge.

text:
    James R. EVANS and Erma F. EVANS v. COMMERCIAL NATIONAL MORTGAGE CO., FIDELITY ABSTRACT COMPANY and James A. GRAY d/b/a FIDELITY ABSTRACT COMPANY
    CA 80-251
    610 S.W. 2d 79
    Court of Appeals of Arkansas
    Opinion delivered December 3, 1980

      J. R. Nash, for appellants.

      James L. Sloan, for appellees.
   Ernie E. Wright, Chief Judge.

Appellants bring this appeal from orders of the trial court granting directed verdicts in favor of the respective appellees.

Appellants’ abstract and brief contains no abstract of the pleadings, findings and conclusions of the trial court, the orders from which the appeal stems or notice of appeal. The statement of the case in appellants’ abstract and brief makes reference to allegations in the suit but we do not accept such matters in the statement of the case as a substitute for the requirements of Rule 9 (d) that appellant’s abstract consist of an impartial condensation of material parts of the pleadings, facts, documents and other matters in the record as are necessary to an understanding of all questions presented for consideration on appeal.

From a review of the evidence, which is abstracted, it is evident this complicated case cannot be properly reviewed without a careful consideration of the pleadings, findings and conclusions or reasoning of the trial court and the others from which the appeal stems. The reasons for requiring an adequate abstract of the pleadings and proceedings to enable the appellate court to understand the issues are clearly set out in Bank of Ozark v. Isaac, 263 Ark. 113, 563 S.W. 2d 707 (1978), and we will not repeat those reasons here. The abstract is flagrantly deficient in failing to abstract crucial parts of the record necessary for a proper review of the issues as to whether the trial court erred in directing verdicts for appellees. Reliable Finance Company v. Rhodes, 252 Ark. 1077, 483 S.W. 2d 187 (1972).

Although we affirm for failure of appellants to comply with Rule 9 (d), we have reviewed the evidence as abstracted and considered the arguments in the briefs, and from a study of these matters we conclude appellants have failed to demonstrate the trial court erred in directing verdicts for appellees on the ground the evidence is insufficient to support verdicts for appellants based on misrepresentation or concealment on the part of appellees.


author: Steele Hays, Judge.

text:
    James Edwin BROWN v. Brenda AQUILINO
    CA 80-314
    608 S.W. 2d 35
    Court of Appeals of Arkansas
    Opinion delivered December 3, 1980

      Honey & Rodgers, by: Danny P. Rodgers, for appellant.

      Phillip H. Shirron, for appellee.
   Steele Hays, Judge.

Appellant, James Edwin Brown, is appealing from the decision of the trial court granting appellee’s motion for summary judgment. Appellee, Brenda Aquilino, had filed a complaint against Brown contending that he had defaulted on his payments on a promissory note. Brown asserted numerous defenses to the action; i.e., lack of consideration, fraud in the execution, exclusiveness of remedy, breach of contract, frustration of purpose of the contract and impossibility of performance.

A hearing was held on the motion for summary judgment and the parties were given leave to file additional affidavits and briefs in support of their contentions. Upon review of all the evidence, the court granted Aquilino’s motion for summary judgment.

On appeal, Brown alleges that the trial court erred in granting summary judgment. At the outset, we recognize that summary judgment is an extreme remedy which should only be allowed when it is clear that there is no issue of fact to be litigated. Saunders v. National Old Line Insurance Company, 266 Ark. 247, 583 S.W. 2d 58 (1979); Robinson v. Rebsamen Ford. Inc., 258 Ark. 935, 530 S.W. 2d 660 (1975).

The burden is upon the moving party to demonstrate that there is no genuine issue of material fact for trial, and evidence submitted in support of the motion must be viewed most favorably to the party resisting the motion. Dodrill v. Arkansas Democrat Company, 265 Ark. 628, 590 S.W. 2d 540 (1979).

Brown contends on appeal that a contract for the sale of common stock provided the consideration for the promissory note. Furthermore, he alleges that an oral employment agreement had been reached by the parties whereby Aquilino was to work for him and that this agreement provided part of the consideration for the contract for the sale of common stock. We conclude that such an agreement is excluded from evidence by the parol evidence rule and accordingly affirm the judgment of the trial court.

Where a contract is plain, unambiguous and complete in its terms, parol evidence is not admissible to contradict or add to the written contract. Carolina Casualty Insurance Company v. Helms, 248 F. Supp. 268 (8th Cir. 1957). The “parol evidence” rule is a rule of substantive law in which all antecedent proposals and negotiations are merged into the written contract and cannot be added to or varied by parol evidence. City of Crossett v. Riles, 261 Ark. 522, 549 S.W. 2d 800 (1977). Applying the rule to the facts in this case, we find that the promissory note is complete on its face with no ambiguous terms. We agree that the contract for sale of common stock and the promissory note are part of the same transaction and, hence, to be construed together, and that the contract for sale was a part of the consideration for the promissory note. However, it would strain to the breaking point the purpose of the parol evidence rule to allow an alleged oral contract of employment to be considered as evidence upon the assertion that such agreement formed part of the consideration for the agreement under the circumstances of this case. The rule as we find it in Arkansas is that where the consideration clause is itself a part of the written contract, oral evidence is not admissible to vary or contradict the written part. Sims v. Best, 140 Ark. 384, 215 S.W. 519 (1919). Another case in accordance with this rule is Harris v. Trueblood, 124 Ark. 308, 186 S.W. 836 (1916), where it was held in an action for fraud in the sale of a business, that parole evidence was inadmissible to show that a promise had been made by the seller to refrain from competing in the same business in the city for one year. The court held that parol evidence of the promise not to compete was not admissible “for the reason that there was a written contract reciting all of the considerations, which were of a contractual nature, and the introduction of the parol proof would vary the terms of the contract itself.”

In Central Life Insurance Company of Illinois v. Thompson, 182 Ark. 705, S.W. 2d 388 (1930), the court stated:

The written contract recites the many reciprocal agreements and obligations of the respective parties, and the statement therein, as to the consideration, is more than a mere statement of fact and acknowledgment of payment of a money consideration, and is of a contractual nature, and the part of the contract relative thereto can no more be changed or modified by parol or extrinsic evidence than any other part.

However, appellant argues that proof of a collateral agreement not inconsistent with the written contract is not excluded by the parol evidence rule. In Lane v. Pfeifer, 264 Ark. 162, 568 S.W. 2d 212 (1978), the court stated the rule succinctly:

. . . When testimony is offered to prove an independent collateral fact about iuhich the contract is silent, the parol evidence rule is not applicable. [Emphasis added.]

Here, the written contract is not silent as to the consideration of the agreement. As the contract for sale recites, the seller sold, transferred and delivered to the buyer 200 shares of common stock for a price of $40,000. Hence, we recognize the general rule that parol evidence cannot be introduced to change or alter a contract in writing. Lane v. Pfeifer, supra; Equitable Discount Corporation v. Trotter, 233 Ark. 270, 344 S.W. 2d 334 (1961). We find that the rule is applicable to the facts of this case and, accordingly, agree with the trial court that no genuine issue of material fact is shown to be present. That being so, the trial court’s granting of appellee’s motion for summary judgment was proper. This conclusion is buttressed by the fact that the parties took the pains to prepare two carefully drafted instruments, the note and the contract, replete with details of the terms and conditions of the agreement, without the slightest reference to appellant’s alleged oral and contemporaneous contract of employment. When we consider, as well, the fact that these documents were prepared by Brown’s attorney, it becomes too much to ask of the law to hold that a thorough, written agreement entered into under the circumstances here prevailing, must accomodate an oral agreement of dubious existence.

Appellant has cited Weaver & Weaver v. Fletcher & Hotze, 27 Ark. 510 (1872) and argues that the alleged contemporaneous oral agreement comes within the rule announced in that decision. But the two cases are easily distinguishable in that the language in rule announced in the Weaver decision permits parol evidence where it is not inconsistent with the terms of the note. The oral agreement appellant relies on is wholly inconsistent with the provisions of the note. The note reflects the monthly payments to be installments against the principal indebtedness. Whereas the alleged oral agreement, according to appellant’s theory, provides that such payments are in reality earnings under the appellee’s contract of employment. It is impossible to reconcile the note and the asserted oral agreement and say that the two are consistent.

Finally, appellant insists that in the event of default in the monthly payments, the contract of sale, paragraph (5), provides that shares of stock equal in value to the balance due on the note shall be returned to Seller and the balance of the shares for which payment has been made shall be delivered to Buyer. This provision, according to appellant, is an exclusive remedy in the event of default. But we find nothing in the contract, either in paragraph (5), or elsewhere, suggesting that this is an exclusive remedy in the event of default and we are not willing to infer that appellee’s recourse in the event of a default was intended to be so restricted. Everything in the two instruments suggests a contrary intention. The promissory note provides, on default, that “the entire principal sum shall at once become due and payable, without notice at the option of the holder of this note.” As appellee correctly points out, when one party has two or more concurrent and consistent remedies, he may pursue one or all until satisfaction is had. Gibson v. Gibson, 266 Ark. 622, 589 S.W. 2d 1 (1979); Davis v. Laivhon, 186 Ark. 51, 52 S.W. 2d 887 (1932). Accordingly, we find that the language of the contract does not contravene the right of the appellee to sue on the note in case of default.

Affirmed.


author: James H. Pilkinton, Judge.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Benjamin F. ROETZEL, Jr. et al
    CA 80-300
    608 S.W. 2d 38
    Court of Appeals of Arkansas
    Opinion delivered December 3, 1980

      Thomas B. Keys and Philip N. Goteen, for appellant.

      Lightle, Beebe, Raney & Bell, by: A. Watson Bell, for appellees.
   James H. Pilkinton, Judge.

The appellant, Arkansas State Highway Commission, asks that we reverse an award for $68,500 made by a jury in White County, Arkansas.

Appellees own 40.5 acres of land and some improvements located in part in the town of Russell, Arkansas, and in part just east of the town. The acreage comprises one tract. The State Highway Commission contended that the sum of $48,500 represented just compensation for the parcel taken and for damages to the remaining 9.53 acres. That figure is supportable by evidence introduced on behalf of the Commission. However, one of the persons owning an interest in the tract testified to damages of $98,400; and one expert for the landowners fixed the damages at $71,500, and a second expert for the landowners at $88,716. The jury returned a verdict in the amount of $68,500 and the State Highway Commission has appealed.

I

The real basis of appellant’s first argument on appeal is that the witnesses for the landowners based their opinions upon non-comparable sales. We find no merit in this argument. A close examination of the testimony of the witnesses for appellee reveals that the trial court did not err in holding that the weight to be given the testimony in question was for the jury. Arkansas State Highway Commission v. McAlister, 247 Ark. 757, 447 S.W. 2d 649 (1969).

Mr. R. W. Weaver, a witness for the landowners, qualified as an expert. He testified that he based his value testimony upon a number of things. Mr. Weaver’s testimony shows that he was very familiar with the property in question, having grown up a short distance from it. He described the physical attributes of the property in detail, including certain pecan trees growing thereon, the drainage, the type of soil involved, the quality of water available and other important characteristics having a bearing on market value. Mr. Weaver pointed out that the property was good loamy land suitable for raising soybeans, or for use as truck crop land. He stated that the property was flat, tight land suitable for irrigation, with a good quantity of water available. He testified, however, that the highest and best use was for rural home sites because there was available water, electricity, natural gas, telephone and all essential utilities not usually found available for a rural tract. He testified that he looked at the subject tract, gathered data and information in a wide area, narrowing it down to the highest and best use for this particular tract; but that he also looked at it from an agricultural standpoint. He further testified that he took into consideration all of the various factors that he had related to the jury, as well as what other lands comparably situated and comparably sized were selling for and being used for in the area.

Under well settled law in Arkansas in a condemnation case, a qualified expert need only to state his bare opinion as to the value of the condemned property. The testimony of an expert witness should be stricken only if it is shown to lack a sound and reasonable basis. Arkansas State Highway Commission v. Cook, 257 Ark. 98, 514 S.W. 2d 215 (1974).

In the case at bar, Mr. Weaver said on cross examination, in response to a question from the appellant’s attorney, that he was familiar with a 3.00 acre tract of land which lay immediately across the road from the subject property. Appellant now insists that Mr. Weaver’s testimony should have been stricken because of his reliance on this tract. Mr. Weaver at no time stated that his opinion was based solely upon the 3-00 acre tract to which appellant is objecting. He stated at several points in his testimony that this tract was only one of many which he viewed in connection with his overall market study. This witness had indicated that he had taken into account certain other comparables.

The trial court properly ruled that the answers of the witness in question, as to the comparables, would go to his credibility and to his expertise in the eyes of the jury, and the testimony should not be stricken. This was a proper ruling by the trial court in view of Arkansas State Highway Commission v. Jones, 256 Ark. 40, 505 S.W. 2d 210 (1974). In that case the court held that if on cross examination a condemnor is unable to draw from an expert witness more than a weak or questionable basis for his opinion, that fact has bearing on the weight to be given the testimony by the jury; and the testimony should not be stricken on motion. Mr. Weaver also testified that no two pieces of land are truly comparable, in that they are not exactly the same, and that he in no way was attempting to tell the jury that the 3.00 acre tract was comparable to the 40 acre tract; but he was merely taking that sale into consideration in conjunction with his overall opinion. Just because an expert witness uses a smaller tract in conjunction with an appraisal of a larger tract, that does not, as a matter of law, show that the witness had no reasonable basis for his opinion as to the fair or market value of the property condemned. The Arkansas Supreme Court in Arkansas State Highway Commission v. Ward, 265 Ark. 578, 579 S.W. 2d 603 (1979) held that the question of similarity or dissimilarity is basically a question for the trial judge, and we find no abuse of that discretion in this case. See also Arkansas State Highway Commission v. NWA Realty, 262 Ark. 440, 557 S.W. 2d 620 (1977).

The appellant also argues that Mr. Weaver testified as to lot sales in Foothills Subdivision in West Russell. Again the witness’s answer was specifically upon the inquiry of appellant’s attorney. Mr. Weaver detailed the demand for rural home sites in the area, and we cannot say that this testimony pertained or was intended to deal with the question of whether the lots in the subdivision were comparable to the property in question. In any event, in Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S.W. 2d 563 (1969) the Supreme Court held that the opinion of an expert witness is not rendered without reasonable basis merely because he bases value figures partially on what lots are selling for in the area, even if the taking is in acreage.

Once a witness qualifies as an expert, he is entitled to give an opinion based upon his expertise. The condemning authority may question that expertise, and the witness’s testimony is deemed to be insubstantial only if it is shown on cross examination that there is no reasonable basis for this opinion. Arkansas State Highway Commission v. Duff, supra.

When we consider the testimony in this record concerning the comparable sales of land nearby in the light most favorable to appellee, we find the appellee’s comparable sales are in compliance with the standards set by the case law.

II

Appellant also contends that the testimony of the witness Weaver was insubstantial. We do not agree. He testified that he took numerous sales into consideration and reviewed them with respect to the various factors in arriving at his opinion and then adjusted those sales to come up with the fair market value of the property. He testified, among others, about a 40 acre tract just south of the subject property, which sold for $1,000 an acre, which he adjusted to $1,-700 an acre because of the topography, drainage, and the fact that it sold 15 months before the taking. Mr. Weaver testified that he took ten other sales into consideration but that some of them were as far as 18 to 20 miles away. Separation of two tracts by distance where they are otherwise similar is not sufficient to show that the sale of one is not evidence of the value of the other, where it cannot be said as a matter of law that they are in different localities. Arkansas State Highway Commission v. NWA Realty, supra. On the basis of this record with reference to the respective tracts, we are unable to say that they are not comparable as a matter of law. Consequently, the weight to be given Mr. Weaver’s testimony was for the jury. Arkansas State Highway Commission v. Highfill, 250 Ark. 291, 464 S.W. 2d 784 (1971).

Ill

Appellant also argues that the court erred in permitting testimony by Mr. Quattlebaum, an expert for the landowners, to go to the jury. We do not agree. The record shows that after qualifying as an expert, Mr. Quattlebaum testified that the highest and best use for this particular tract of land immediately before the taking in August of 1978 would be for the development into acreage for home sites. Mr. Quattlebaum testified that he did consider the 3.00 acre tract, about which the appellant’s attorney inquired on cross examination and which sold for $3,000 an acre, but that he did not consider it fully comparable because of the difference in size. The gist of his testimony was that the sale of the smaller tracts in the vicinity were not comparable per se, but would have to be adjusted. Taken as a whole, it appears to us that the testimony of Mr. Quattlebaum was neither improper nor prejudicial to appellant’s case; and that he gave a logical basis for his opinion of market value.

IV

Appellant finally argues that the testimony of B. F. Roetzel, who owned an interest in the land and represented the landowners, is insubstantial.

An owner of land is competent to give opinion testimony as to the value of his land. His testimony is to be stricken only if it is demonstrated that there is no fair or logical basis of support for it. Arkansas State Highway Commission v. Jones, supra. In this case Mr. Roetzel testified as to his familiarity with the land and other lands in the area. The mere fact that Mr. Roetzel did not know of any other sales of land at the exact value he placed upon his property does not demonstrate that he had no reasonable basis for his opinion. Arkansas State Highway Commission v. McAlister, supra. This witness had lived on the land for along time, used and worked it, and was intimately familiar with his land, a part of which was taken by the state. He testified that he was familiar with the value of other land sales in the area. We cannot say he had no reasonable basis for his opinion. The jury did not adopt his value anyway, but in the exercise of the right given to a jury by law in a case of this nature, fixed the damages at $68,500, some $29,900 less than the valuation placed upon this land by the owner.

We are simply unable to say that appellant has demonstrated that the verdict had no substantial evidentiary support.

The judgment is affirmed.


author: Marian F. Penix, Judge.

text:
    Nancy SMITH et al, Alleged Dependents of Timothy Curtiss SMART, Deceased v. GLENN BROTHERS TRUCKING COMPANY and INSURANCE COMPANY OF NORTH AMERICA
    CA 80-330
    608 S.W. 2d 41
    Court of Appeals of Arkansas
    Opinion delivered December 3, 1980

      Philip M. Wilson, for appellants.

      Friday, Eldredge & Clark, by: Frederick S. Ursery, for appellees.
   Marian F. Penix, Judge.

Timothy Smart died July 16, 1979 as a result of an injury sustained while working for Glenn Brothers Trucking Company. The claim was accepted as compensable and funeral expenses were paid. The Administrative Law Judge held Timothy is survived by no dependents. This decision was affirmed by the Workers’ Compensation Commission. Timothy’s mother, Nancy Smith, and his sister, Natalie Smart, have appealed to this Court alleging dependency on the decedent Timothy. They also allege there should be a 50% penalty added to all benefits due to a violation of the safety provisions of Section 10(d) of the Workers’ Compensation Act. They further allege all benefits should be doubled as Timothy was a minor, illegally employed in violation of Section 10(e) of the Act. Both the Administrative Law Judge and the Commission held the mother and sister were not Timothy’s dependents.

Timothy was born April 7, 1964 in Maryland. His sister, Natalie, was born October 30, 1965. Their parents divorced in 1971. They have received no support from their father since that time. Nancy, their mother, remarried and they moved to Arkansas. On June 4, 1979, Nancy, having separated from her husband Ernest Smith, moved with Natalie back to Maryland. Before leaving for Maryland she talked to Brenda Glen about Timothy’s application for a job at Glen Brothers. Brenda is the wife of Phil Glen, owner of Glen Brothers Trucking. Brenda picked up Timothy and took him to make out a job application. He was hired, although at the time he was only fifteen years old. Timothy remained with his stepfather, Ernest Smith and began working for Glen Brothers. Nancy and Natalie left Arkansas on June 4, 1979 for Maryland. Nancy went to work on June 27, 1979, for the State of Maryland. She testified she received her first pay check about the middle of August, 1979. She testified she received S 5 0.00 cash by mail from Timothy four times from the time she left Arkansas until his death on July 16, 1979. She contends she and her daughter, Natalie, were dependents of Timothy at the time of his death, because she had no other means of income during the period in which he sent money to her. She testified she sold her piano to get enough money to make the trip to Maryland. The record reflects Nancy previously worked for the State of Maryland until August, 1977 when she moved to Little Rock. She had two years leave of absence “and if they had an opening within two years I would be reinstated at the same salary that I left.” She testified she borrowed $400.00 from her mother to help place a deposit on an apartment.

The Administrative Law Judge found Nancy moved to Virginia and began working as a district court clerk for the State of Maryland on June 27, 1979, earning $10,500.00 per year. He found Nancy to be gainfully employed and had failed to prove by preponderance of the evidence Nancy and Natalie were dependent upon Timothy on the date of his death. It was further held since no dependency benefits were awarded Nancy’s and Natalie’s claim for penalty under Section 10 (d) and (e) is moot. The Commission accepted these findings and affirmed.

Section 63.12 of Larson’s Workmen’s Compensation Law entitled “Partial Dependency” gives the following summary which puts the present claim in perspective:

Among the cases in which dependency claims have failed largely on the strength of other income are that of a father with an income of $2,000 per year whose son’s contributions went to pay for the family home, that of parents of a son who contributed $40 a week while the father earned $300 a month, that of aged parents with an income of $250 a month claiming dependency on a son whose weekly salary was $20 to $30 a week, that of parents with an income of $4,000 a year who received $240 a year from an adult son who did not live with them, that of a mother whose son contributed $1,440 to the total family income of $7,000, that of a daughter whose income combined with her husband’s was $2,219 a year claiming dependency on her father who earned $3,281.99, and that of parents who were denied the status of dependents on their nineteen-year-old son, on a showing that the father earned $77 a week, the mother $42, and the decedent about $50 . . .

It is apparent from the record that neither Nancy, the mother, nor Natalie, the sister, was dependent upon fifteen year old Timothy for support. Timothy’s step-father testified Nancy had bought clothes for Timothy prior to leaving for Maryland. Timothy began work on June 4, the day his mother and sister left for Virginia and Maryland. They went in the family auto, stayed at Nancy’s mother’s beach home in Ocean City, Virginia, until her mother loaned her the money for a down payment on an apartment. Nancy had taken a two year leave of absence from her job as a court clerk for the State of Maryland. She reapplied for her old job June 6 and was told she could start to work June 27. Although there is evidence Timothy sent his mother $50.00 on four different occasions, we nevertheless find substantial evidence to support the Commission’s findings that Nancy and Natalie were not in fact dependents of Timothy. We agree with the Commission that Nancy and Natalie have not met their burden of proof by a preponderance of the evidence.

If we find the decision of the Commission to be support-fed by substantial evidence we must affirm. Clark v. Peabody Testing Service, 265 Ark. 489, 579 S.W. 2d 360 (1979).

The Commission found “Since the within death case is compensable with no dependents and in accordance with Section 13(f)(2)(iii) and Section 10(c)(2) the respondents are ordered to pay $500.00 to the Second Injury Fund and $500.00 to the Death and Permanent Total Bank Fund.”

Section 10(c)(2) of the Workers’ Compensation Act provides:

Each employer or the insurance carrier of the employer shall in each case of death of an employee where there are no dependents pay into the Death and Permanent Total Disability Bank Fund the sum of Five Hundred Dollars ($500.00) which shall be in addition to the Five Hundred Dollars ($500.00) paid into the Second Injury Fund by such employer or his carrier in such cases.

Section 13(f)(2)(iii) provides in relevant part:

The employer, or if insured, his carrier, shall pay the sum of Five Hundred Dollars (S500.00) into such special fund for every case of injury causing death in which there are no persons entitled to compensation. The State Treasurer shall be the custodian of this special fund, to be known as the Second Injury Fund, and the Commission shall direct the distribution thereof.-

The Commission decided the penalty provisions do not apply to payments to these funds. It is the responsibility of the Commission to administer the Workers’ Compensation Act and its various funds. The Commission found Nancy and Natalie are not titled to dependency benefits and that the penalty provisions of the Act do not apply. We cannot say such finding is clearly contrary to the statutory intent.

Affirmed.


author: David Newbern, Judge.

text:
    Billy G. EMERSON v. John D. BRIDGFORTH and Knox KINNEY, Co-Administrators of the Estate of Jack B. LANCASTER, deceased
    CA 80-235
    608 S.W. 2d 47
    Court of Appeals of Arkansas
    Opinion delivered December 3, 1980.

      Ray & Donovan, for appellant.
    No brief for appellees.
   David Newbern, Judge.

The question presented is whether leaving a complaint and summons with the son of the appellant (who was also the appellant’s employee) at the appellant’s business address constituted valid service of process upon the appellant. We hold it did not.

The appellees filed a complaint alleging the appellant owed a sum of money, evidenced by a promissory note, to the estate they represent. The complaint and summons were handed to the appellant’s son, Barry Emerson, at the appellant’s place of business, not his abode. The factual statement in the appellant’s brief is that the return filed by the sheriffs office recited that the appellant was personally served with the summons and complaint. Curiously, the summons and complaint are not abstracted, and they do not appear in the record. Instead, there is a “clerk’s statement as to summons,” as follows: “Summons issued October 26, 1979, and served on Mr. Billy G. Emerson on October 29, 1979.” We will accept the appellant’s statement of the facts with respect to what the return showed, as the appellees have filed no brief or supplemental abstract.

After 20 days had passed from the time the complaint was purportedly served, the appellant filed an answer stating he had not been personally served in the matter and alleging defenses on the merits of the claim. The trial court held a hearing on the question whether default judgment should be granted or the service quashed. At the hearing the appellant presented evidence to the effect that the summons and complaint were handed to his son, and the appellant had in turn presented them to the attorney who customarily represented him. As it happened, the attorney is a law partner of one of the appellees and thus could not handle the matter. By the time the appellant obtained other counsel, the time to answer had passed.

Toward the close of the hearing, the court made the following remarks:

There is case law that any agent or a servant employee of the party is an authorized person to receive summons. He can be served if he is in the course of his employment and found within the jurisdiction of the Court.

The closing colloquy between the court and the appellant’s counsel reveals the court’s impression that because the appellant’s son was an employee of the appellant the service was appropriate and authorized by law.

A.R. Civ. P. 4(d)(1) controls this matter. It provides:

(d) Personal Service Inside the State: A copy of the summons and of the complaint shall be served together. The plaintiff shall furnish the person making service with such copies as are necessary: Service shall be made as follows:
(1) Upon an individual, other than an infant or an incompetent person, by delivering a copy of the summons and complaint to him personally, or if he refuses to receive it, by offering a copy thereof to him, or by leaving a copy thereof at his dwelling house or usual place of abode with some person residing therein who is at least fourteen (14) years of age, or by delivering a copy thereof to an agent authorized by appointment or by law to receive service of summons.

There is no question that the portion of the rule permitting service by “leaving a copy ... at his dwelling house or usual place of abode with some person residing there,” does not apply in this case. No evidence tended to show the service was made at the appellant’s dwelling or handed to a person residing there. The only question is whether, as the trial court found, Barry Emerson was “an agent authorized by appointment or by law to receive service of summons.”

1. Authorization by law.

We simply can think of no “law” which would make either a son or an employee, or a person who is both, an agent authorized to accept service of process on behalf of his father-employer. There are, of course, situations to which this part of the rule applies, such as the statute conferring authority upon the Secretary of State to receive process for a nonresident motorist or corporation. Ark. Stat. Ann., § 27-339.1(3) (Repl. 1979).

The closes we can come to finding case “law” which might be considered to constitute a family member an agent ■for this purpose is Crawley v. Neal, 152 Ark. 232, 238 S.W. 1054 (1922), in which our supreme court, by way of dictum, described the wife of a prospective defendant as his “agent” for receipt of process. There, however, our supreme court was faced with a situation in which the wife was served pursuant to the now superseded Arkansas statute permitting process to be left at the usual place of abode of the defendant with a person who is a member of his family over the age of 15 years. Clearly, such a person was specifically authorized to receive process under the superseded statute, Ark. Stat. Ann., § 27-330 (Repl. 1962), and is authorized pursuant to Rule 4(d)(1), because of the specific provision constituting such a person an agent for that purpose.

As we find no “law” validating the service in this case, we turn to the question whether the recipient was “an agent authorized by appointment.”

2. Agent by appointment.

. In its relevant part, our rule is the same as F. R. C. P. 4(d)(1). The federal rule has uniformly been interpreted strictly to require that a person who is to be considered authorized by appointment to receive process have specific authorization. See, U.S. v. Marple Community Record, Inc., 335 F. Supp. 95 (E.D. Pa. 1971). Service on a person who is an agent for purposes other than receipt of process does not comply with the rule. Hardy v. O’Daniel, 16 F.R.D. 355 (D.D.C. 1954). See generally, Annot., 26 ALR 2d 1086 (1952); Annot., 11 L. Ed. 2d 1036 (1964); and 4 Wright & Miller, Federal Practice and Procedure, § 1097, p. 370 (1969).

In states having rules precisely like or very similar to the Federal and Arkansas rules, the same or similar language has been interpreted to mean that a person who was an agent for a different purpose may not bind a defendant by receiving process for him. For example, an agent authorized to collect rent for a property owner is not considered to have been appointed to receive process for his principal, Foster v. Lewis, 78 Nev. 330, 372 P. 2d 679 (Nev. 1962), and an office secretary is not an agent authorized to receive service for her employer at his office, Haley v. Hershberger, 207 Kan. 459, 485 P. 2d 1321 (1971).

3. Superseded Arkansas law.

It is difficult for us to know what the trial court had in mind when he referred to “case law that any agent or a servant employee of the party is an authorized person to receive summons.” Our superseded statute, Ark. Stat. Ann., § 27-330, supra, would not have permitted it, although there was a provision in another statute for service upon the “cashier, treasurer, secretary, clerk or agent” of a corporation. See superseded Ark. Stat. Ann., § 27-346 (Repl. 1962).

Our supreme court was as zealous in construing statutes of this type strictly as the federal courts have been in construing the rule. See Edmondson v. Farris, 263 Ark. 505, 565 S.W. 2d 617 (1978); Booker v. Greenville Gravel Co., 249 Ark. 330, 459 S.W. 2d 408 (1970). Thus, we feel no hesitancy in following the federal cases and the state cases cited above in holding Barry Emerson was not an agent appointed for the purpose of receiving summons.

To conclude this portion of our opinion, we should note that the only argument made by the appellees at the hearing was that the return which recited service upon the appellant “speaks for itself.” The return is only prima facie evidence of what transpired, and the truth is subject to proof in a hearing such as the one held below. Hirsch v. Perkins, 211 Ark. 388, 200 S.W. 2d 796 (1947); Crawley v. Neal, supra.

Conclusion.

As we hold the service of process was invalid, sustaining a motion to quash would have been appropriate. However, the appellant has tendered an answer on the merits of the claim. On this appeal, the appellant does not ask that we regard the service of process as quashed, thus requiring the appellees to begin again. Rather, the appellant only asks that his answer be considered. This approach will, of course, save time, effort and expense for the court and the parties. Therefore, we remand to the trial court with instruction that the appellant’s answer be allowed to stand and the case be allowed to proceed as if the answer had been timely filed. A.R. Civ. P. 1.

Reversed and remanded.


text:
    Lee D. WATSON v. Lois Vernell WATSON
    CA 80-312
    608 S.W. 2d 44
    Court of Appeals of Arkansas
    Opinion delivered December 3, 1980

      William W. Benton, for appellant.

      Phillip H. Shirron, for appellee.
   David Newbern, Judge.

The parties were divorced in 1977, and custody of their two sons was awarded to the appellee. In 1979 the appellant petitioned for change of custody with respect to Jeffrey, the younger of the children, whose age was 11 at the time of the hearing on the petition. The appellant asked that the alimony which had been awarded to the appellee be abated because she had begun earning sufficient income to support herself. In a counter petition, as amended, the appellee denied that circumstances had changed so as to provide a basis for a change in custody, and she asked that she be allowed to remain in the appellant’s mobile home, where she and the children had been allowed to dwell pursuant to the decree. The initial decree had provided she was to remain in the mobile home until the nearby house being constructed for her was completed, but in any event no longer than three years from the date of the decree.

The appellee further requested an increase in child support, alleging that the original award of $40 per week was no longer adequate. She also asked that her alimony not be abated because her income was not sufficient to support herself and the children. She requested further that the appellant be held in contempt for his violation of the court’s order that he not harass her.

The chancellor held a hearing and entered an order stating that, (1) the petition seeking change of custody and abatement of alimony would be dismissed because evidence of changed circumstances was insufficient, (2) the appellant was in contempt and sentenced to a $1,000 fine and 30 days in jail, with all but $100 of the fine and 24 hours of the jail term suspended, because of his harassing acts toward the appellee, (3) the child support payments for the two children would be increased to $60 per week, and (4) the appellee’s request she be allowed to remain in the mobile home was denied.

The appellant has appealed the denial of the change of custody, the increase in child support, and the court’s refusal to abate the alimony.

1. Change of custody.

The appellant first sets out sections 1 and 3 of Acts of Arkansas (1979), No. 278, which recognized the need to abolish the consideration of the sex of a party seeking custody of a child and recognized the difficulty divorced fathers have had in obtaining custody of their children despite the fact they may have been more qualified than divorced mothers. If we were dealing in this case with the initial decree and being asked to consider evidence that the assignment of custody had been based upon the gender of the parties, Act 278 would be relevant. However, here we are concerned with a question of change in custody. We will consider, of course, the best interests of the child, Digby v. Digby, 263 Ark. 813, 567 S.W. 2d 290 (1978); Kirby v. Kirby, 189 Ark. 937, 75 S.W. 2d 817 (1934); and Perkins v. Perkins, 266 Ark. 597, 589 S.W. 2d 588 (Ark. App., 1979), and whether the chancellor’s determination of that issue was clearly erroneous or clearly against the preponderance of the evidence. A. R. Civ. P. 52.

About the only change in circumstances to which the appellant refers as a basis for alleging the chancellor erred is the fact that the appellant has become remarried (for the second time since his divorce from the appellee) to a woman who is a full-time homemaker, and that he lives in a comfortable house where there is a room for Jeffrey. The appellant’s wife of six months testified that she loved Jeffrey and would like to have him in their home. The appellant testified-of his love for his son and his concern over an apparent learning disability for which he had sought treatment for Jeffrey.

In response to this argument, the chancellor referred to the misconduct of the appellant for which he had been found in contempt and stated he was completely unconvinced the appellant had “this child’s best interest at heart.”

Given the best interests guideline and the requirement that we find changed circumstances in that context, we cannot disagree with the chancellor or say that his decision was clearly erroneous. Certainly, the circumstances in which the child was placed when the decree was rendered are the same ones in which he continues to live today. There was evidence before the chancellor that the appellant had been arrested for public drunkenness and had been involved in disturbances of the peace in addition to his harassing conduct toward the appellee. Thus, despite the appellant’s changed circumstances with respect to his home life, we cannot gainsay the chancellor’s conclusion that circumstances as they affect Jeffrey have not changed or indeed that his interest would be better served if he were to live with his father.

A subsidiary raised by the appellant is the refusal of the trial court to give any weight to Jeffrey’s testimony that he would prefer to live with his father. A number of our supreme court’s decisions have approved the practice of considering the wishes of children, some of them quite young, with respect to custodial preference. DeCroo v. DeCroo, 266 Ark. 275, 583 S.W. 2d 80 (1979); Carr v. Hall, 235 Ark. 874, 363 S.W. 2d 223 (1963) (rev’d on rehearing on other grounds); Dill v. Dill, 209 Ark. 445, 191 S.W. 2d 829 (1945). Although the DeCroo opinion said the testimony of a 13 year old was not “entirely without weight,” we find no case denying the chancellor the discretion to decline to give weight to such testimony. Here, the chancellor permitted Jeffrey to testify but stated beforehand that he did not intend to give the testimony any weight.

Problems at school had led Jeffrey’s mother to seek help at Southeast Mental Health Center. An employee of the Center testified that Jeffrey’s intelligence was “marginal” and that he was “very anxious, immature, and impulsive” when he was initially examined at the Center. Through medication and group therapy, he has improved, but he requires “continuous supervision.”

Even if the chancellor’s predetermination with respect to the credibility or weight to be given Jeffrey’s testimony was questionable, we can hardly say his discretion was abused in view of the testimony of the representative of the Center and the evidence which so emphatically convinced the chancellor the appellant was a person given to misconduct which could affect Jeffrey.

2. Increase in child support.

At the time of the hearing, the appellee’s remaining tenure in the appellant’s mobile home was drawing to a close, and, as noted above, she sought a change from the original decree so that she might be allowed to remain there until the children were grown. The home which had been under construction had burned. The appellee testified that on the night it burned, she received a telephone call from a person whose voice she identified as that of the appellant telling her to look out her back window. She did so and saw her construction project in flames. The appellant denied having made the call or having had anything to do with the fire.

In deciding to increase the appellant’s child support payments from $40 to $60 per week, the chancellor commented he was not certain the appellant had nothing to do with that fire. The chancellor declined to honor the request of the appellee that she be allowed to remain in the mobile home, and he based the change in support payments upon the fact that the appellee was about to be required to move from the appellant’s mobile home and would need additional funds for dwelling space.

Here again, the applicable standard to be applied is that of “changed circumstances.” The circumstances of the appellee and the children were about to change, and we cannot say the chancellor’s order in this respect was clearly erroneous, Rule 52, supra, or that the chancellor abused his discretion. Gross v. Gross, 266 Ark. 186, 585 S.W. 2d 14 (1979); Collie v. Collie, 242 Ark. 297, 413 S.W. 2d 42 (1967).

3. Alimony.

Ark. Stat. Ann. § 34-1213 (Supp. 1979), provides that alimony may be altered upon application under such circumstances “as may be proper.” Our supreme court has required changed circumstances as the predicate for any such alteration. Drummond v. Drummond, 267 Ark. 449, 590 S.W. 2d 658 (1979); Hurley v. Hurley, 255 Ark. 68, 498 S.W. 2d 887 (1973). While we cannot close our eyes to the reality of and the policy served by the remarriage of the appellant and the additional expenses he has undertaken, that factor is not compelling. Hurley v. Hurley, supra. Nor are we compelled by the evidence that the appellee at the time of the hearing had two part-time jobs from which she earned $375 per month. It is clear to us as it must have been to the chancellor that the appellee is not “self-sustaining”, Davis v. Davis, 241 Ark. 171, 406 S.W. 2d 704 (1966), and that the appellant’s income has not been so substantially reduced that he is no longer able to pay alimony to the appellee.

Affirmed.


author: John I. Purtle, Justice.

text:
    Ronald E. STOKES, Executor of the Estate of Carl J. STOKES et al v. Charlene STOKES
    80-141
    613 S.W. 2d 372
    Supreme Court of Arkansas
    Substituted Opinion on Rehearing delivered February 23, 1981

      Richard C. Peel & Ike Allen Laws, Jr., for appellants.

      Jon P. Shermer, Jr., for appellee.
   John I. Purtle, Justice.

In our opinion of December 8, 1980, we affirmed the order of the trial court. On petition for rehearing we reverse and remand. Inasmuch as the December 8, 1980, opinion was been published, we will restate the facts.

This appeal is from an order of the Pope County Probate Court allowing the appellee (widow) to take against the will of decedent, Carl J. Stokes. Appellants argue that several Arkansas statutes and a part of the Arkansas Constitution are. invalid because they violate the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. We agree with the contention of the appellants.

January 4, 1975, decedent, Carl J. Stokes, executed a will in which he bequeathed 30 acres of land and personal property to Charlene Wilson. The residue of his property was bequeathed to his two adult children. He married Charlene Wilson shortly after executing the will. During the marriage between Charlene and the decedent they disposed of the 30 acres mentioned in the will. Carl J. Stokes did not execute another will after the marriage to Charlene, appellee herein. He died on January 15, 1979, leaving appellee as his widow and Ronald E. Stokes and Nancy Stokes Cornwell, appellants, as the beneficiaries under the will of January 4, 1975. Appellants were his only children and were the named beneficiaries in the will which was admitted to probate on January 17, 1979- Ronald E. Stokes was appointed executor of the will.

April 27, 1979, appellee filed an election pursuant to Ark. Stat. Ann. § 60-501 (Repl. 1971) to take against the will. November 1, 1979, the executor conveyed certain real properties to James R. Ford and his associates. On the same day Ford and associates mortgaged the property to the Bank of Ozark. November 6, 1979, appellee filed a petition for assignment of dower in the property sold to Ford as well as other property. Ford and associates and the Bank of Ozark were made parties to the petition. Appellants amended their response to the petition of the widow by alleging Ark. Stat. Ann. §§ 60-501 - 60-507, §§ 61-202 - 61-233, §§ 62-701 - 62-727, §§ 62-2501 - 2502, and Art. 9 § 6 Constitution of Arkansas were unconstitutional inasmuch as they violated the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. They further alleged these statutes violated the Fifth Amendment to the United States Constitution and were arbitrary and discriminatory as they were gender based thereby failing to provide due process and equal protection to a husband. By order dated April 15, 1980, the probate court assigned dower and granted statutory allowances to appellee.

Appellants appeal from the order granting the petition by the widow to take against the will. They argue that the statutes allowing the widow to take against the will are unconstitutional. They also argue that the appellants have standing to bring this action.

We first consider the question of whether the appellants had standing to seek the relief they sought. We will consider standing only as it relates to Ronald E. Stokes and Nancy Stokes Cornwell because the interest of the other appellants flow out of any right the children of Carl J. Stokes may have in this matter. There is no question but that appellants must have suffered injury or belong to a class which is prejudiced by a statute or constitutional provision before they have standing to challenge its validity. According to Arkansas law of descent and distribution, the property of a decedent becomes vested in the heirs or legatees at the time of his death. There is no question that the decedent’s two children would eventually have an interest in the property, as they are the only heirs at law of Carl J. Stokes. However, the dispute is whether they have a present standing to bring this action. It is obvious that they have a direct monetary interest in the outcome of this lawsuit. If the widow cannot take against the will, then the appellants will divide Carl J. Stokes’ estate. Obviously, the estate is considerably reduced if the widow is allowed to take against the will as directed by the probate court. It is apparent that by the widow taking against the will the interest of the surviving heirs is diminished. We do not think the claim of the children of Carl Stokes rests upon the legal rights of another. Each of the two children of the decedent will stand an immediate monetary loss if the probate court is upheld. Therefore, we find appellants do have standing to bring this action. Barrows v. Jackson, 346 U.S. 249 (1953); Eisenstadt v. Baird, 40 U.S. 438 (1972).

We now consider the Arkansas laws relating to the right of a widow to take against the will. We will consider here only the provisions of the law which are in issue and were argued in the briefs. We will not consider the validity of other laws which are based on gender. The dissent in the original opinion, which is now the majority opinion, pointed out that other statutes would fall when the time came. The time is here.

The United States Supreme Court has clearly indicated it will stike down all gender based laws which do not serve a legitimate governmental purpose and are reasonably designed to accomplish that purpose. Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102 (1979); Wengler v. Druggist Mutual Insurance Company, 446 U.S. 142 (1980); Califano v. Goldfarb, 430 U.S. 199 (1977); Califano v. Westcott, 443 U.S. 76 (1979); Stanton v. Stanton, 421 U.S. 7 (1975); Trimble v. Gordon, 430 U.S. 762 (1977).

The first statute to be considered will be Ark. Stat. Ann. § 60-501 which reads as follows:

When a married man dies testate as to all or any part of his estate, or when a married woman dies leaving as her Last Will and Testament one executed prior to her marriage, the surviving spouse shall have the right to take against the will; and in the event of such election the rights of the surviving spouse in the estate of the deceased spouse shall be limitd to the following:
(a) The surviving spouse, if a woman, shall receive dower in the deceased husband’s real estate and personal property as if he had died intestate, which dower shall be additional to her homstead rights and statutory allowances;
(b) The surviving spouse, if a man, shall receive a curtesy interest in the real and personal property of the deceased spouse to the same extent as if she had died intestate.
(c) But if after the assignment of dower or curtesy, as the case may be, and the payment of all statutory allowances, taxes and debts, and the satisfaction of all testamentary gifts and devises, there shall remain some residue of the deceased spouse’s estate which is not disposed of by will, then, provided the deceased spouse shall have been survived by no natural or adopted child (or the descendants of any natural or adopted child), and by no parent, brother, sister, grandparent, uncle, aunt, great grandparent, great uncle or great aunt (or the lineal descendants of any of them), the surviving spouse will take by inheritance such undisposed of residue.

There is no question but that § 60-501 is gender based. The question then is whether the statute serves an important governmental function and if so is the statute geared to achieve that objective. Decedent could not, while he was married, dispose of any of his real property nor could he do so by will as to the interest of appellee. On the other hand, the wife (widow) was free to dispose of any or all of her interest in real property at any time she decided to do so. We do not believe this statute meets the test and hereby declare Ark. Stat. Ann. § 60-501 unconstitutional.

We think the rationale of Orr v. Orr, supra, is applicable in the present situation. We have applied Orr in cases where we have ruled certain statutory provisions relating to divorce unconstitutional. Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 (1979). In Hatcher we ruled Ark. Stat. Ann. § 34-1210 unconstitutional because it was gender based. We think that Ark. Stat. Ann. § 60-501 has the same infirmities as Ark. Stat. Ann. § 34-1210.

The second statute which appellant claims is unconstitutional is Ark. Stat. Ann. § 61-201. This statute simply gives the widow a dower right of one third of the lands which her husband was seized that the time of his death. For the reasons previously stated this statute is also unconstitutional. This statute gives the widow a dower in not only the lands which her husband was seized at the time of his death but any lands held by him at any time during the marriage. It has the same defect as those previously mentioned and is declared unconstitutional. Ark. Stat. Ann. § 61-202 gives the widow the right to one third of the personal property which her husband owned at the time of his death. There is no complementary statute which allows a husband to take this type of property against a will. We cannot see any governmental function in this statute. It, too, must be declared unconstituitonal. We also are asked to consider Ark. Stat. Ann. § 61-203- This is an attempt to broaden the grants in the above statutes by allowing the widow to take dower in bonds, bills, notes, accounts and evidence of debt which her husband owned at the time of his death. It has the same defects as the other statutes. Ark. Stat. Ann. § 61-207 has the same infirmity as mentioned above in § 61-201. This statute gives the wife dower interest in property which her husband may have disposed of during the marriage without her consent. Again, the husband has no equal rights. In fact, he has no rights against the wife’s conveyances. Ark. Stat. Ann. § 61-208 is simply another way of saying that the widow has rights in her husband’s property. It is merely an expansion of rights previously conferred by other statutes. Having the same infirmities as the other, it must fail as an unconstitutional statute. Ark. Stat. Ann. § 61-210 gives a widow dower interest in property which was mortgaged by the husband before the marriage. This right was against everybody except the mortgagee. In any event, it is gender based and is hereby declared unconstitutional.

We next consider Ark. Stat. Ann. § 62-2501. This statute provides for certain benefits to widows and minor children. We hold this statute invalid as it relates to the rights conferred upon a widow. There are no rights provided for a surviving husband. The statute involves both homestead and dower. Therefore, we hold only the dower provisions of this statute unconstitutional. Since homestead and minor children rights are not involved in the action before us, we do not make a decision relating to the rights granted these people under the above statute.

Finally, we consider the argument that Art. 9 § 6 of the Constitution of the State of Arkansas is unconstitutional. We recognize that the above provision is gender based. However, in keeping with precedent, we do not decide the validity of this provision of the constitution because homestead is not involved in the case before us.

Reversed and remanded with directions to proceed in a manner not inconsistent with this opinion.