author: James H. Pilkinton, Judge.

text:
    Stanley HEGG v. Markel E. DICKENS and wife, Neda Faye DICKENS, and the FIRST NATIONAL BANK OF CONWAY, Arkansas
    CA 80-195
    606 S.W. 2d 106
    Court of Appeals of Arkansas
    Opinion delivered October 8, 1980

      Highsmith, Greg, Hart & Farris, for appellant.

      Brazil & Roberts, for appellee.
   James H. Pilkinton, Judge.

Appellees, Markel Dickens and Neda Faye Dickens, his wife, owned and operated a business known as “Hickory House Motel and Cafe” in Greenbrier, Arkansas. The property consists of a cafe, motel, and adjacent residence and space for a trailer park.

In January, 1979, the appellant, Stanley Hegg, who lived in California, entered into negotiations with appellees to purchase the property. After at least two inspections of the premises, a contract was entered into whereby appellant agreed to purchase the property at a price of $87,500. Mr Hegg paid $25,000 down to Mr. & Mrs. Dickens and executed a note and a first mortgage to the First National Bank of Conway, Arkansas, for $36,500, and gave a note and second mortgage to the sellers for $26,000, representing the remainder due on the purchase price. Mr. Hegg made no payments on the note to the appellees and they brought an action for foreclosure. The First National Bank of Conway was made a party, and filed an answer and cross-complaint against Hegg.

Appellant filed an answer and cross-complaint alleging that appellees made certain false and fraudulent representations which induced them to purchase the premises. Appellant asked that the contract, notes and mortgages be cancelled and also prayed for damages allegedly sustained by reason of said false representations.

The chancellor found that there was no actual or constructive fraud in the procurement of the sale and dismissed the cross-complaint for want of equity. The appellant brings this appeal from that decision.

The record shows that appellant had an advisor, Mr. Eugene Ramsey, on whom he relied. Mr. Ramsey is a real estate broker in Arkansas with offices in Pleasant Plains. This advisor went with Mr. Hegg and advised him throughout the negotiations.

The evidence is clear that appellees ran an advertisement in an effort to sell the motel and cafe, which read as follows:

MOTEL & RESTAURANT — On U. S. highway, in fast growing community, 37 miles to Little Rock. Owner states $46,000 NET INCOME last year! 10 motel units, office. Equipt 40 x 60 cafe building seats 57, private party and club room. 2 mobile home hookups. Owner’s separate 2-bedroom quarters. One of the best at $105,-000, 29% down, owner financing. No. 3197 — Conway, Ark.

Mr. Hegg testified that he relied to a considerable degree on the representation made in the ad that appellees realized a net income of $46,000 for the preceding year from the operation of the cafe and motel. When appellee Markel Dickens testified, he admitted that the figure given was a gross figure as distinguished from net earnings. He also stated that he did not know what he made from the business for the year preceding the advertisement. Mr. Eugene Ramsey, the real estate broker who advised Mr. Hegg in the negotiations, testified that based on appellees’ representation of net income, as contained in the ad and also as conveyed to him by the real estate agent representing the sellers, he advised appellant that the net income from the property justified the investment contemplated.

While appellant was experienced in other lines of business, he had not previously engaged in the operation of a motel or cafe. He lost money in the operation of the business in 1979- There was some evidence by appellees to the effect that appellant did not operate the business efficiently.

It is well settled that false representation by the seller as to present or best income of the property sold or conveyed will, if relied upon by the purchaser, constitute actionable fraud. Kotz v. Rush, 218 Ark. 692, 238 S.W. 2d 634 (1951), and cases cited. The record in this case clearly establishes a false representation by appellees in seeking to dispose of the property in question as to net income. Under the circumstances here, this representation is regarded as a statement of fact upon which fraud may be predicated if it is false, since this is a matter within the owner’s own knowledge. While Mr. Hegg relied upon Mr. Ramsey for guidance in the matter, the evidence is clear that Mr. Ramsey relied upon the false representation as to income in advising appellant to purchase the property.

The remedies of a purchaser in cases of this kind are set forth in Danielson, et al v. Skidmore, et al, 125 Ark. 572, 189 S.W. 57, and have been quoted with approval in later cases:

He may rescind the contract and by returning or offering to return the property purchased within a reasonable time entitle himself to recover whatever he had paid upon the contract. Again he may elect to retain the property and sue for damages he has sustained by reason of the false and fraudulent representations, and in this event the measure of his damages would be the difference between the real value of the property in its true condition and the price at which he purchased it. Lastly to avoid circuity of action and a multiplicity of suits, he may plead such damages in an action for the purchase money and is entitled to have the same recouped from the price he agreed to pay. Matlock v. Reppy, 47 Ark. 148, 14 S.W. 546; Ft. Smith Lumber Co. v. Baker, 123 Ark. 275, 185 S.W. 277.

Appellant in this case sued both to rescind the contract and for damages. He was not required to elect his remedy, and some evidence was taken at the trial below on both issues. The main issue on appeal is whether the chancellor’s findings are clearly against the preponderance of the evidence. Rule 52, Arkansas Rules of Civil Procedure. We think that appellees willfully misrepresented their net income from the property; that Mr. Dickens was less than candid when an effort was made to ascertain the truth or falsity of such representation, which was within the peculiar knowledge of appellees; and that appellant relied on such false representation to his damage. The decision of the chancellor to dismiss the cross action was clearly against the preponderance of the evidence.

Appellees argue that the appellant did not plead misrepresentation of income from the property as a ground for relief in his complaint. That is true. However, there was a great deal of testimony taken at the trial concerning this issue. When appellees objected to its introduction, the court repeatedly overruled the objection and admitted the evidence. Appellees did not claim surprise or move for a continuance. The trial court thus considered the pleadings amended to conform to the proof, which was the proper thing to do under these circumstances. Rule 15, Arkansas Rules of Civil Procedure.

The record before us indicates that it would not now be possible, due to the passage of time and other factors, for the properties involved to be restored to the sellers in the same condition they were at the time of the transaction. Under these circumstances, appellant is entitled to such damages as he may have sustained by reason of the false and fraudulent representation. Kotz v. Rush, supra. The present record is not complete on the question of damages, and it is not possible for this court on the record now before us to ascertain the amount to which appellant is entitled. Therefore, this case must be reversed and remanded to the trial court with instructions to determine the amount of damages appellant has sustained; and to modify the decree by rendering judgment on the cross action accordingly. The measure of his damages will be the difference between the real value of the property in its true condition at the time of the transaction and the price for which he purchased it. Kotz v. Rush, supra.

Reversed and remanded.


source: Caselaw Access Project

author: Marian F. Penix, Judge.

license: Public Domain

text:
    Lavedna GARIS v. James T. MASSEY, his wife Earline MASSEY; Jim KENT, and Jim POOLE, Administrator of the Estate of Lura KENT, deceased; Jim BRINKLEY, and his wife, Effie BRINKLEY
    CA 80-201
    606 S.W. 2d 109
    Court of Appeals of Arkansas
    Opinion delivered October 8, 1980

      Kirby Riff el and David Throesch, for appellant.

      Barrett, Wheatley, Smith & Deacon, and Burris & Berry, for appellees.
   Marian F. Penix, Judge.

Lavedna Garis, daughter and sole heir of Lura Kent, sued to set aside a deed from Lura Kent to James Massey. Lura Kent is now deceased. Ms. Garis’ complaint alleged Lura Kent was legally incompetent when she signed the deed, that her husband Jim Kent exercised undue influence and used fraud and duress to induce her to sign the deed, and that the consideration was inadequate. The Chancellor dismissed the complaint and the counterclaim of defendants Massey. Ms Garis appeals.

Ms. Garis amended her complaint to allege Jim Kent had quitclaimed any interest he might have had to Jim and Effle Brinkley, who were added as party defendants. The Brinkleys, by way of affirmative defense, state that Jim Kent would have curtesy right in Lura Kent’s estate, and therefore they would obtain any interest in the property in question that Jim Kent would receive if Ms. Garis prevails.

The Court’s findings state there is a presumption in favor of competence and the proof was insufficient to overcome the presumption Lura Kent was competent at the time the deed was executed. The Court further found the standard of proof of fraud or undue influence requires not just a preponderance of evidence, but clear, cogent and convincing evidence of the existence of fraud or undue influence.

Ms. Garis contends Lura Kent was shown to be ¿incompetent by a preponderance of the evidence. In reviewing the record we find voluminous testimony from acquaintances, neighbors, relatives as to Lura Kent’s eccentricities, imagination, forgetfulness, and approaching senility. But the essential elements found in incompetency were never proven nor shown. Those being: (a Lura Kent’s inability to appreciate the extent and condition of her property (b her failure to appreciate her disposition of the property and (c her failure to understand the consideration and the (d proof these elements existed at the time she executed the deed.

Several witnesses gave an account of the incident when Lura Kent was found in a disheveled condition in a ditch near her home. This was three days following the execution of the deed. There was no testimony proving she was incapable of understanding a business transaction prior to her signing of the deed. Although we have no actual proof of what occurred just before Lura Kent’s being found in the ditch, we can conjecture she must have experienced something traumatic. Several of the witnesses conjectured there must have been “something wrong” with Lura Kent because she was frequently seen standing on her property looking at things. The witnesses who testified as to strange incidents also admitted on cross-examination Lura Kent was competent at times. From the testimony there emerges a woman 20 years her husband’s senior, very much in love with her husband, who did bizarre things when her husband was away from home long hours and without explanation. Sterling Bland testified to two incidents of bizarre behavior — one being when Lura Kent was found in the ditch and the other when she awakened the Blands at 3:00 a.m. frantically looking for Jim Kent, her husband. None of Bland’s testimony related in any way to Lura Kent’s competency in business matters.

Most of the testimony by relatives concerned Lura Kent’s mental condition after she was brought to Missouri, apart from her husband and friends, placed in a nursing home and was given drugs for her arteriosclerosis and Parkinson’s disease. Lura Kent’s former lawyer finally admitted on cross-examination Lura Kent probably would have been capable of making a contract in February 1976 and he did not testify to anything which would alter this observation prior to July 1976 — the date of the execution of the deed.

Dr. Creech did not see Lura Kent until October 1976. Dr. Creech thought she might have had a stroke earlier. Dr. Clopton testified no doctor seeing her in October 1976 could have any way of knowing in terms of any reasonable degree of medical certainty her condition in July 1976 — especially in view of the drugs and treatment she received since July. We can find from the record, no medical evidence going to Lura Kent’s incompetency at the time she conveyed her property to Massey in July 1976.

Harwell v. Garrett, 239 Ark. 551, 393 S.W. 2d 256 (1965) involved the execution of a will. Chief Justice Harris quotes from Volume 1, Page on Wills, Section 12.37:

The fact that the testator was filthy, forgetful, and eccentric, or that he believed in witchcraft, and had dogs and cats at the same table with him, and would lie in bed with his clothes on for two weeks at a time, or that he would leave his home only at night, and would count or recount his money, or that he was high tempered and violent, or was irritable and profane, or that the testator thought that others were plotting against him and was afraid to go out in the dark, or that he was inattentive when spoken to and mumbled when trying to talk, does not establish lack of capacity.

We find no error in the Chancellor’s finding Ms. Garis failed to overcome the presumption that Lura Kent intelligently comprehended the transaction which requires the execution of her deed. See Hunt v.Jones, 228 Ark. 545, 309 S.W. 2d 22, (1958) and Pledger v. Berkhead, 156 Ark. 443, 246 S.W. 2d 510 (1923).

Having found the presumption of competency has not been overcome, we need not address Ms. Garis’' allegation in regard to changing the burden of proof to the defendants to show lucid intervals.

The question of whether the Attorney Holloway’s impeaching testimony should have been allowed is a difficult one. After the Chancellor sustained the objection to Mr. Holloway’s testimony, his testimony was proffered showing he was familiar with the reputation of the defendants’ witnesses Bill Davis’ and Richard Easely’s truthfulness in the Corning community in which they lived and it is not good. The proffer was that Attorney Holloway had an opinion personally as to their truthfulness and he would not rely on their testimony. The proffer also was that each witness is an ex-convict.

Both of these witnesses were important to the defendants’ case. Their credibility was important as they claimed first-hand knowledge of Lura Kent’s competency. Under the Uniform Rules of Evidence, Rules 608 and 609 we find Attorney Holloway’s testimony should have been admitted.

Rule 609(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the appropriate value of admitting this evidence outweighs its prejudicial effect to a party or a witness.

In the Federal Rule the words “If elicited from him or established by public record during cross-examination” appear between ‘admitted’ and ‘but’. This intentional deletion by the legislature persuades us they intended such testimony as that proffered should have been admitted. Evidence, I. Judicial Decisions (C) Rehabilitation of Witnesses. 1 UALR Law Journal 191 (1978).

Testimony in a trial is one means by which we arrive at the truth. The modern trend is that the search of truth demands a liberal application of the Rules of Evidence.

We find no error in the Chancellor’s allowing Attorney Manatt to testify as to the value of the Kent property. Attorney Manatt’s experience and personal knowledge of the Kent property qualified him to express an opinion as to its value.

However, we do find error in the Chancellor’s refusal to admit Dan Melton’s testimony. His proiffer showed his land was similar to the Kent property and that he was familiar with land prices in that area and that he sold it about 1976 and the two farms were approximately equal. The proffer was made saying he sold his land for $30,000.00 — $600.00 per acre — and the Kent land was better land, more productive and worth more - about $700.00 an acre. We find his testimony not irrelevant and should have been admitted under Rule 701 of the Uniform Rules of Evidence:

Opinion testimony by lay witnesses. — If the witness is not tesifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.

The Chancellor allowed similar testimony by Attorney Manatt. This Melton testimony should have been considered on the issue of the value of the land.

Even though we find the Chancellor erred in excluding Attorney Holloway’s testimony and in excluding Dan Melton’s testimony, we find these exclusions to be harmless.

We are deciding this case “de novo”. We therefore can consider the excluded evidence. Even after considering the evidence, we are not persuaded the Appellant Ms. Garis has proven her allegations that Lura Kent was incompetent and unduly influenced by fraud and duress at the time she conveyed her property to the defendant. We cannot say the Chancellor’s finding was clearly against the preponderance of the evidence. Newberry v. McClaren, 262 Ark. 735, 575 S.W. 2d 438 (1978).

We therefore affirm.


author: George Howard, Jr., Judge.

text:
    Frank MEISCH v. V. J. BRADY
    CA 80-202
    606 S.W. 2d 112
    Court of Appeals of Arkansas
    Opinion delivered October 8, 1980

      Guy Jones, Jr., for appellant

      Brazil & Roberts, for appellee
   George Howard, Jr., Judge.

This is an appeal from an order of the Faulkner Circuit Court setting aside a default judgment entered in behalf of appellant and against the appellee for $2,900.00.

The pertinent facts are: on February 21, 1979, appellant, plaintiff below, filed his complaint and summons was duly issued and personally served on the appellee-defendant on March 2, 1979.

A default judgment was entered on May 31, 1979, since no pleading was filed in behalf of appellee. On July 26, 1979, after appellee learned of the default judgment, appellee filed his petition to vacate the judgment alleging:

“2. That this Judgment should be set aside because of an unavoidable casualty and misfortune preventing him from appearing or defending the lawsuit.
“3. That this Defendant has an undoubted defense to said indebtedness and further has a counterclaim against this Plaintiff for a substantial amount of money in excess of that money allegedly claimed due by the Plaintiff, and further, he did not, in fact, owe this Plaintiff.”

Appellant’s response to appellee’s petition asserted:

“1. Defendant failed to allege sufficient facts or appropriate grounds for setting aside prior judgment. . . .
“2. Defendant alleges no facts, only conclusions of law and as such said petition should be denied and stricken from the record. ...”

On March 17, 1980, the trial judge entered his order ■vacating the judgment stating:

“1. That good cause has been shown by the defendant to set aside the default judgment. ...”
Rule 55 of Arkansas’ Rules of Civil Procedure provides:
“(a) When a party against whom a judgment for affirmative relief is sought has failed to appear or otherwise defend . . . judgment by default shall be entered by the court. ■
“(c) The court may set aside a default judgment previously entered upon a showing of excusable neglect, unavoidable casualty, or other just cause.” (Emphasis added)

Rule 60 of the Rules of Civil Procedure provides:

“(b) Any judgment of any circuit, chancery or probate court shall have the same force and effect as a conclusive adjudication upon the expiration of ninety (90) days from the filing thereof with the clerk of the court. . . . Any such judgment may be modified, set aside or vacated within ninety (90) days from the filing thereof with the clerk of the court or pursuant to a motion made within that ninety (90) day period. .
“(d) No judgment against a defendant, unless it was rendered before the action stood for trial, shall be set aside under this rule unless the defendant in his motion asserts a valid defense to the action and, upon hearing, makes a prima facie showing of such defense. (Emphasis added)

The appellee-defendant offered the following testimony in support of his petition:

Q. Back in February of 79 did you get served with a summons, V. J. ?
A. Yes, I did.
Q. And you don’t deny that the time is past and no answer was filed for you?
A. I believe that’s correct.
Q. Tell us what happened.
A. Well, within a week after I received the notice, uh, my uncle was representing me.
Q. Who was that?
A. Russell Roberts. And it was shortly after his retirement, as to what month I don’t know. And when — I took it out to his house one Sunday afternoon and gave it to him. And he told me that, uh, he didn’t have the office — the office wasn’t open — or he didn’t go down to the office, and he would go down some night and file an answer. And that was — as far as I know, that was, uh, what happened to that.
Q. Subsequently found out, of course, that he was sick.
A. Well, later on, uh, I got a notice where a judgment had been issued against me.
Q. And that’s when you brought it to me, or shortly after that?
A. Right.
Q. And your uncle, Mr. Roberts, was ill?
A. Yes.
Q. Did you find that out.
A. Yes.
MR. JONES: I’m going to object to anything — the condition anyone was in at that time, your Honor. I don’t think anybody here is an M. D. If they’ve got testimony, an M. D. or someone to testify to that fact, that’s fine with me.
Q. Do you owe the man the money?
A. No, sir. Maybe a part of it but not that much.
Q. Does he owe you any mony?
A. He does, yes, sir.
Q. How much does he owe you?
A. Approximately some $3,000.
Q. So you have set off to the debt?
A. I have all the bills. I haven’t run them up. I don’t know exactly the amount.”

A judgment by default is just as binding and forceful as a judgment entered after a trial on the merits in a case; and it is not to be discredited or regarded lightly because of the manner in which it was acquired. A default judgment determines a plaintiff s right to recover and a defendant’s liability just as any conventional judgment or decree. See: 49 C. J. S., Judgments, § 200, page 356. It has been stated authoritatively that an additional purpose of the entry of a default judgment is to keep the dockets current and expedite disposal of litigation, thereby preventing dilatory tactics on the part of a defendant from impeding the plaintiff in the establishment of his claim; and that it is not designed to furnish an advantage to the plaintiff so that a defense may be defeated or a judgment obtained without the rigors encountered in a contest. See: 47 Am. Jur. 2d, Judgments, § 1152, page 184.

Rule 55 states in no uncertain terms that a default judgment may be set aside “upon a showing of excusable neglect, unavoidable casualty, or other just cause.” And rule 60(d) is equally clear and in definite terms provides that “\n\o judgment against defendant, unless it was rendered before the action stood for trial, shall be set aside . . . unless defendant in his motion asserts a valid defense to the action and, upon hearing, makes a prima facie showing of such defense.”

From the plain meaning of the provisions referred to in Rules 55 and 60, appellee-defendant’s efforts fall far short of establishing the necessary requirements entitling him to an order vacating appellant’s judgment. We hold that the trial court abused its discretion in setting aside the default judgment.

It is beyond debate that illness of a party’s counsel, so severe as to prevent him from appearing in behalf of^his client, is an appropriate ground for vacating a default judgment provided the party litigant did not know of it in time to retain other counsel or was prevented in some way from doing so; otherwise, such illness of counsel is not grounds for setting aside the judgment. See: C. J. S., Judgments, § 334, page 624;Johnson v. Jett, 203 Ark. 861, 159 S.W. 2d 78 (1942).

This record, to say the very least, does not demonstrate in any way that appellee’s attorney’s purported illness was so severe as to prevent him from filing an answer within the allotted time provided under law. The record tends to support a conclusion that the appellee’s predicament could have been avoided by the exercise of care or diligence. Appellee testified that he delivered the summons within a week, after he had been served by the officer, to his attorney, his uncle; that his uncle advised him, when appellee took the summons to his uncle’s house one Sunday afternoon, that “he didn’t have the — the office wasn’t open — or he didn’t go down to the office, and he would go down some night and file an answer.” Appellee stated that he consulted his present counsel when he learned of the judgment — 146 days after appellee was served with the summons and 56 days after the judgment was entered. It is plain that the circumstances surrounding appellee’s retention of his uncle to represent him and the status of his uncle as a practicing attorney — his retirement and the existence versus nonexistence of an office — dictated a greater interest in his case than was manifested by appellee as illustrated by this record. Indifference, inattention and inexcusable negligence are not the same as excusable neglect. These terms are incomparable.

In Alger v. Beasley, 180 Ark. 46, 20 S.W. 2d 317 (1929), the Supreme Court stated that the failure of an attorney to file an answer is imputable to the litigant.

Finally, appellee’s petition to vacate the judgment simply alleged conclusions of law regarding the purported unavoidable casualty which prevented him from appearing and defending in this lawsuit. The petition is also deficient from the standpoint of appellee’s failure to assert a valid defense. Appellee simply stated that he had “an undoubted defense to said indebtedness and further has a counterclaim against the plaintiff for a substantial amount of money in excess of that money allegedly claimed due by the plaintiff and further, he did not, in fact, owe this plaintiff.” Appellee testified, when asked if he owed the appellant any money, “[n]o, sir. Maybe a part of it but not that much.” And when asked if appellant was indebted to him, appellee explained “I don’t know exactly the amount.”

In Trumbull v. Harris, 114 Ark. 493, 170 S.W. 222 (1914), the Arkansas Supreme Court emphasized that it is the duty of a litigant to keep himself informed of the progress of his case and if a default judgment is entered against him and he relies upon unavoidable casualty as a ground for relief, he has the duty to show that he himself is not guilty of negligence.

In Haville v. Pearrow, 233 Ark. 586, 346 S.W. 2d 204 (1961), the Arkansas Supreme Court said that in an action to vacate a default judgment, the petitioner has no grounds to complain of the dismissal of his petition where he has not shown a meritorious defense to the action in which the default judgment was entered.

Reversed and remanded with directions to the trial court to reinstate appellant’s default judgment.

      Rule 60(c) provides:
      "(c) The court in which a judgment has been rendered or order made shall have the power, after the expiration of ninety (90) days after the filing of said judgment with the clerk of the court, to vacate or modify such judgment or order:
      "(7) For unavoidable casualty or misfortune preventing the party from appearing or defending.”


author: David Newbern, Judge.

text:
    ARGONAUT INSURANCE COMPANY v. Millard Dee HOOPER
    CA 80-180
    606 S.W. 2d 116
    Court of Appeals of Arkansas
    Opinion delivered October 8, 1980
    Rehearing denied November 5, 1980

      Davidson, Plastiras, Horne, Hollingsoivrth & Arnold, Ltd., for appellant.

      Jim Hamilton, for appellee.
   David Newbern, Judge.

The trial court, sitting without a jury, determined that the appellant, with other defendants, was jointly and severally responsible for money held on behalf of the appellee. Evidence before the court included a contract pursuant to which the money was held. The appellant was not a party on the face of the contract, but there was substantial evidence the contract was made for its benfit by its agent. Other evidence showed that the appellant now has at least joint control of the money in question. We must determine whether the trial court’s judgment was clearly erroneous or clearly against the preponderance of the evidence. A. R. Civ. P., 52.

When he decided he wanted to go into the bail bonds business, the appellee called the appellant’s office in California. He subsequently entered a contract with Surety Control Corporation, through its “supervising agent,” Foster L. Stotts. The contract provided that the appellee would become an “executing agent” for the issuance of bail bonds for Surety Control Corporation. It further provided for an indemnity fund to be composed of an initial $1,000 deposit by the appellee to be augmented by a percentage of the amount earned on each bond written by the appellee. The money was to be placed in a trust account subject to the sole control of Surety Control Corporation. The purpose of the fund thus to be accumulated was to indemnify Surety Control for any obligations of the appellee under the contract and particularly those set forth in paragraph 11. Paragraph 11 provides, in part, that the agent will indemnify the company “and any of its surety companies, cosureties and reinsurers and Supervising Agent and save it and each of them harmless from any and all “liabilities.” The fund was to be returned to the appellee upon termination of his relationship with Surety Control and fulfillment of his obligations under the contract.

The record clearly shows that Surety Control’s supervising agent was Stotts, and Surety Control’s reinsurer was the appellant which was the named carrier on the bonds written by the appellee under this arrangement. Thus, the contract was for the benefit of the appellant as well as Surety Control. The record further shows that the powers of attorney for the bond instruments used by the appellee were those of the appellant whose name appeared on the faces of those instruments.

Correspondence, which was admitted into evidence, between the appellant and Stotts and Stotts’ partner showed that the arrangement between the appellant and Surety Control Corporation was terminated and litigation between them ensued. There is no question the appellee fulfilled all of his contractual obligations to Surety Control and the appellant, but despite repeated requests, he has been unable to obtain a return of the- fund which was accumulated pursuant to the contract. A letter from the appellant to.the appellee in response to one of the appellee’s -requests states the following:

At the present time, the build-up funds are maintained at U.S. Life Savings and Loan Association in Los Angeles. The Superior Court of Los Angeles County has ordered joint control of these funds by Argonaut and Surety Control.

The trial court did not state his reasons for holding the appellant, Surety Control Corporation and Stotts' jointly and severally liable to the appellee for the fund. The appellant argues there is no theory upon which the judgment as to it can stand because it was not a party to the contract. The appellee contends the judgment is correct either because the contract was executed on behalf of the appellant by its agent or because of a restitution theory upon which the appellee does not elaborate.

Because of the obvious apparent and express relationship between the appellant, Surety Control Corporation and Stotts, we hold that Stotts and Surety Control were the agents of the appellant in contracting with the appellee. The appellant clearly benefitted from the contract, and Surety Control had at least apparent authority to act for the appellant. There is, in the record, a letter from the appellant to Stotts stating that Surety Control was terminated, after the contract was written, as its “managing general agent.” We find Surety Control was the agent of the appellant for the purpose of contracting with the appellee. See, A.L.I., Rest, Agency 2d, §§ 8, 140, 141 and 146 (1958).

The holding of the trial court with respect to joint and several liability seems particularly correct in this case in view of the admitted joint control of the fund between the appellant and Surety Control Corporation. This case is analogous to those in which a third party brings suit against an agent and a principal who was undisclosed at the time the contract was made. Our supreme court has held that joint and several liability is appropriate in such circumstances. Williamson v. O’Dwyer & Ahern Co., 127 Ark. 530, 192 S.W. 899 (1917); Bryant Lumber Co. v. Crist, 87 Ark. 434, 112 S.W. 965 (1908). See also, Beatrice Creamery Co. v. Garner, 119 Ark. 558, 179 S.W. 160 (1915).

Affirmed.


text:
    William Byrd JONES et al v. Emily Ann BRANSFORD, Executrix
    CA 80-203
    606 S.W. 2d 118
    Court of Appeals of Arkansas
    Opinion delivered October 8, 1980
    Rehearing denied November 5, 1980

      Davidson, Plastiras, Home, Hollingsowrth & Arnold, Ltd., by: George N. Plastiras for appellants.

      Rose Law Firm, by: W. Dane Clay, for appellee.
   David Newbern, Judge.

We are asked, mainly, to determine the effect of revocation of a clause in a will giving a portion of the residue of the estate. We must decide whether property which would have passed according to the revoked provision falls into the residue or passes by intestacy. We hold that it passes by intestacy, and because we cannot ascertain from the record the trial court’s disposition of the property in question, we remand the case.

The will originally provided for several specific bequests and division of the residue into four equal parts. Three of the parts were to go to the daughters of the testatrix, and the fourth part was to be divided among grandsons of the testatrix. By codicil the testatrix cancelled the provision for one-fourth of the residue to go to her grandsons, and provided instead they were to receive 12% of the “net value” of the estate.

The grandsons, who are the appellants, petitioned for construction of the will, and they now contend the trial court erred in holding they were not entitled to any of the appreciation in the value of the estate during the period from the testatrix’s death until distribution. The predicate for that argument is the assumption that the appellants remain residuary legatees, and that the testatrix only reduced their portion from 25% to 12%, leaving 13% undisposed of. One has only to look at the language of the codical to see the fallacy in that argument. Twelve percent of “net value of the estate” is not the same as 12% of the residue. The appellants are entitled to their specific bequest, and its value is to be determined as of the date of the testatrix’s death. Cavanaugh v. Madden, 175 Ark. 236, 299 S.W. 1 (1927). 4 Page, The Law of Wills, § 30.26 (1961).

The appellants also argue they are entitled to a portion of the property left undisposed of by the revocation. As we do not accept their contention that they remained residuary legatees, we cannot agree that they are entitled to any part of the residue as a result of the will and codical. This leaves a question how the residue in excess of the three 25% shares is to be distributed. From the record we cannot tell how the trial court proposed to distribute it. The appellee suggests it falls in the residue and should be distributed to the residuary legatees, despite the limitation of their interest to 25% each.

We recognize and agree that if there is evidence of intent of the testatrix to dispose of her entire estate, we should follow that intent, and that partial intestacies are not favored. Galloway v. Darby, 105 Ark. 558, 151 S.W. 1014 (1912). However, we cannot find that intent in the language of the testatrix. Undoubtedly she did dispose of her entire estate in her will, but she revoked a portion of it and did not thereafter provide for disposition of her entire estate.

If we were dealing with a lapse of a devise to one of several residuary devisees, we would have the benefit of Ark. Stat. Ann. § 60-410 (b) (Supp. 1979), which would cause the undisposed of portion to go to the remaining residuary devisees. We do not believe, however, the theory behind the statute is applicable here, because it provides for distribution of a portion of the residue where “the share of one of the residuary devisees fails for any reason.” Here, we do not have a failure of any provision, rather, we have a revocation. For the same reason, cases dealing with lapsed residuary legacies are also inapplicable.

We find very little authority with respect to this problem. Certainly ho Arkansas case of which we are aware addresses it. Professor Page says:

If a bequest to one of two or more residuary legatees is revoked by a codicil, it will be assumed that the other residuary legatees divide the entire residuum. [4 Page, The Law of Wills, p. 391 (1961)].

For that proposition, only the case of Bronson v. Finney, 130 Conn. 262, 33 A. 2d 322 (1943), is cited. That case recognizes a “substantial” distinction between lapse and revocation of a gift of a portion of a residue. The Connecticut court said that although a lapse under Connecticut law of such a gift would result in partial intestacy, revocation, being an intentional act by the testator, should' have the effect of passing the affected property to the remaining residuáry legatees. The cohrt chose to treat the revocation by codical as if it had changed the residuary clause by simply omitting certain proposed legatees. The author of Annot., 36 A.L.R. 2d 1117, n. 4 (1954), cites the Bronson case alone for the distinction between lapse and revocation by codicil.

We are persuaded to agree with the powerful logic of the Connecticut court in the Bronson case, however, we must note an important factual distinction. There, the residuary clause provided only that certain persons take the residue to be “divided equally (with one exception) between” them. The exception had to do with children taking the share of one deceased person who would otherwise have taken. Here, the testatrix was far more explicit. She provided that the residue of her estate including all real and personal property go to her three daughters, “one part each, or one-fourth each of the residue of my estate.” She then provided that the appellants would take the remaining share of the residue, share and share alike. The testatrix was, therefore, explicit in stating what portion of the residue each of her daughters was to take. That is unlike the Bronson case where the residuary beneficiaries were simply to share in the residue equally, with the one exception explained above. If we were to follow that case here despite the differences, we might effect what we believe was the testatrix’s intent, but it would be directly contrary to what she said. While our decision may seem to be a little too technical, and while it may seem to stray from our conjecture, reasonable though it may be, with respect to the testatrix’s intent, only so much can be done in the name of broad policy against intestacy. We agree with the Connecticut court that there is a difference between revocation and lapse, but in this case it cuts differently than in the Bronson case, as we have here a testatrix who, taken at her word, has left us totally without direction with respect to a part of the residue of her estate.

We therefore remand this case to the probate judge so that he may enter orders distributing to the heirs at law the portion'- of the estate of which the testatrix did not dispose.

Affirmed, as modified, and remanded.


author: George Rose Smith, Justice.

text:
    Larone LOWE and Floy Edelle LOWE v. Jones MORRISON et al
    80-142
    606 S.W. 2d 569
    Supreme Court of Arkansas
    Opinion delivered October 13, 1980
    Rehearing denied November 17, 1980

      Charles L. Honey, for appellants.

      Charles S. Gibson, for appellees.
   George Rose Smith, Justice.

This case having been previously in this court, we have jurisdiction under Rule 29 (1) (j). On the first appeal we reversed a tort judgment in favor of the Lowes and remanded the case for a new trial. Morrison v. Lowe, 267 Ark. 361, 590 S.W. 2d 299 (1979). During the pendency of the appeal, however, the judgment was not superceded, and the Lowes collected $7,681.41 by garnishments.

On remand the Morrisons filed a motion for restitution of the money. The Lowes resisted the motion on the theory that since they no longer have the money, having spent it for living expenses, the Morrisons should be required to bring a separate action to recover it. The trial judge, refusing to accept that theory, treated the Morrisons’ motion as a motion for judgment and entered judgment in their favor for $7,-681.41, plus the costs of the first appeal. For reversal the Lowes argue primarily that, even though the Morrisons’ right to relief is undisputed, they should be compelled to bring a separate action, under our holding in Dodson v. Butler, 101 Ark. 416, 142 S.W. 503, 39 LRA (n.s.) 1100, Ann. Cas. 1913E, 1001 (1912).

We do not agree. The Dodson case construed an ancient statute, part of the Revised Statutes of 1838, which provides that when a judgment has been carried into effect before its reversal, the judgment defendant can recover from the plaintiff the full amount paid, “by an action of debt or on the case for so much money had and received to his use.” Ark. Stat. Ann. § 27-2153 (Repl. 1979). InDodson the judgment creditor had collected part of the judgment before reversal, but on remand the trial judge committed him to jail for contempt even though he had spent the money. We reversed that order and said in passing that the separate cause of action conferred by the statute became “the sole remedy” when the creditor no longer had the specific money or property. We did not, however, order such a separate action to be brought, merely remanding the case for a new trial.

The appellants are mistaken in arguing that Section 27-2153 “only allows recovery for so much money actually had and received to the Lowes’ use” (our italics) and therefore would not enable the Morrisons to recover the one third retained by the Lowes’ lawyers. The phrase in the statute was used in common law pleading to mean “money had and received by the defendant to and for the use of the plaintiff.” Chitty on Pleading, 362 (16th Am. ed., 1876). In this dispute, arising from the motion for restitution, the Morrisons are the plaintiffs and the Lowes the defendants. “Money had and received” at common law included money due upon an implied promise as distinguished from an express contract. Chitty states, p. 362, that an action for money had and received may be brought “to recover back money paid on a judgment subsequently reversed,” but all four cases he cites were common law actions of assumpsit. Stevens v. Fitch, 11 Met. (Mass.) 248 (1846); Maghee v. Kellogg, 24 Wend. (N.Y.) 32 (1840); Sturgess v. Allis, 10 Wend. 354 (1833); Clark v. Pinney, 6 Cowen (N.Y.) 296 (1825). What our legislature did in 1838 was to state explicitly that the judgment debtor could recover either by action of debt or by an action on the case. Such distinctions were then vital, because if the plaintiff chose the wrong form of action his complaint was demurrable (and could not be amended). Chitty, 220.

Thus the 1838 statute construed in Dodson was designed to expand the judgment debtor’s remedy, not to restrict it. That liberalization of our procedure was continued by the Civil Code of 1869, which abolished the common law forms of action and permitted amendments to pleadings in furtherance of justice. Pope’s Digest (1937), §§ 1232 and 1463. Simplification of procedure was carried still further by our 1979 Rules of Civil Procedure, which govern this dispute. Rule 15 encourages amendments of pleadings to conform to the evidence, and Rule 61 recognizes the principle of harmless error whenever a defect in the procedings does not affect the substantial rights of the parties.

After the remand of this case all the parties were before the court, the dispute about restitution arose from this very case, the facts were undisputed, and the Morrisons’ right to recover was beyond question. The trial judge was clearly right, under our liberal rules of procedure, in treating the motion for restitution as a motion for judgment, in view of the proof, and granting relief. Nor was there any reason for him to delay the award until a retrial, merely to permit a possible setoff against any judgment that might be recovered by the Lowes. After a reversal the case stands as if no action at all had been taken by the trial court. Palmer v. Carden, 239 Ark. 336, 389 S.W. 2d 428 (1965), As we said in the Dodson case: “The court, by its own act having occasioned wrong by the rendition of an erroneous judgment, has the inherent power by summary proceedings to afford redress to the injured party.”

Affirmed.


text:
    STATE of Arkansas v. Charles E. BLOCK
    CR 80-153
    606 S.W. 2d 362
    Supreme Court of Arkansas
    Opinion delivered October 13, 1980
    Rehearing denied November 10, 1980

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellant.

      Harold L. Hall, for appellee.
   George Rose Smith, Justice.

On January 3, 1980, a robbery occurred in Little Rock. That night the police arrested a suspect who made a statement implicating the appellee Charles E. Block. Two nights later an officer went to Block’s home, without an arrest warrant, and arrested him. Block was charged by information with aggravated robbery, criminal attempt to commit capital murder, and theft of property.

The trial court, acting upon a pretrial motion to dismiss the charges, conducted a hearing on the validity of Block’s arrest. On conflicting testimony the court found the arrest illegal, because when Block’s mother opened the door in response to the officer’s knock, the officer entered the house without an invitation and arrested Block. The trial judge, relying solely upon the Supreme Court’s holding in Payton v. New York, decided last April, dismissed the charges on account of the illegal arrest. Payton v. New York, 100 S. Ct. 1371 (1980).

The State took an appeal toi this court, under Rule 29(l)(k), on the erroneous assumption that this is an interlocutory appeal. Of course it is not, an order of dismissal being final. The State’s procedure, however, complies with Criminal Procedure Rule 36.10 (b) and (c), and we have retained jurisdiction because the case presents an issue of significant public interest or a legal principle of major importance. Rule 29(4)(b).

The trial judge manifestly misinterpreted the Supreme Court’s holding in Payton. It is unthinkable that a person who has committed murder, for example, should go scot free just because an officer enters his home without an invitation and arrests him without a warrant. The law is just the opposite. United States v. Crews, 100 S. Ct. 1244 (1980); Gerstein v. Pugh, 420 U.S. 103 (1975); Singleton v. State, 256 Ark. 756, 510 S.W. 2d 283 (1974). In the Payton case the court merely held that evidence is not admissible when it was obtained by an ofcer’s illegal entry into a person’s home without an arrest warrant. There was no limit that the charges should be dismissed. Quite the contrary, the court specifically stated in Footnote 34: “The issue is not whether a defendant must stand trial, because he must do so even if the arrest is illegal.”

The judgment is reversed, and Block not yet having been in jeopardy, the cause is remanded for trial.


author: Frank Holt, Justice. John F. Stroud, Justice,

text:
    CHICAGO MILL & LUMBER COMPANY, Employer v. Starling GREER, Employee, and STATE of Arkansas, Second Injury Fund
    80-157
    606 S.W. 2d 72
    Supreme Court of Arkansas
    Opinion delivered October 13, 1980

      Daggett, Daggett & Van Dover, for petitioner.

      Mike J. Etoch and Steve Clark, Atty. Gen., by: Robert R. Ross, Deputy Atty. Gen., for respondents.
   Frank Holt, Justice.

At the time petitioner employed respondent Greer, he had a wooden left leg as a result of an accident many years previously. In January, 1978, the employee suffered a fracture of his right ankle at work, an acknowledged compensable injury. The Commission found that as a result of the amputation of his left leg and 40% impairment of his right leg the employee was permanently and totally disabled; the preexisting amputation of the left leg was independently causing a disability; and the statutory Second Injury Fund, Ark. Stat. Ann. § 81-1313 (f) (2) (iii), was inapplicable as to payment of any disability claim. The loss was then apportioned. Petitioner Chicago, Mill was given a credit against the $50,000 maximum liability for $10,500, which was found to be the value of the preexisting amputation, a scheduled injury. The Commission ordered that, after payment by the petitioner of the $39,500 balance in weekly benefits, any further benefits due the employee for his total disability be paid from the Death & Permanent Total Disability Bank Fund. The circuit court affirmed the Commission. The Court of Appeals affirmed in a 3-3 decision. Chicago Mill & Lumber Co. v. Greer, 269 Ark. 895, 601 S.W. 2d 583 (1980). We granted certiorari.

The Commission’s finding that respondent Greer is totally and permanently disabled as a result of the combined injuries is not questioned. The primary issue, the applicability of the Second Injury Fund, involves an interpretation of § 81-1313:

(f) Second injury: In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto: ...
(2)(iii) If an employee who had previously incurred permanent partial disability through the loss of one [1] hand, one [1] arm, one [1] foot, one [1] leg, or one [1] eye, incurs permanent total disability through the total loss of another member, ... he shall be paid in addition to the compensation for permanent and partial disability provided in Section 13 (c) . . . . additional compensation .... (Italics supplied.)

This section further provides that additional compensation be paid out of a special fund created for this purpose, the Second Injury Fund. Originally the section did not include the word “total”. Therefore, the respondents argue that this word was added in the 1948 amendment to emphasize requiring a total loss of the member. Petitioner, however, contends that the words “total loss of another member” should be construed from a disability viewpoint rather than an anatomical viewpoint. Consequently, from an employment standpoint, the claimant has “totally lost” the use of the his right leg since he is admittedly totally and permanently disabled as a result of the combined injuries.

The precise issue presented appears to be one of first impression. Arkansas Women’s Compensation Comm’n v. Sandy, 217 Ark. 821, 233 S.W. 2d 382 (1950), the only case relied upon by respondents, is not controlling. There the claimant had previously lost four fingers of his left hand, having only the thumb remaining. In a subsequent injury, his right arm was amputated above the elbow. A claim was filed under the Seccond Injury Fund. The Commission denied the claim, finding he was not totally and permanently disabld. We affirmed, stating the extent of the disability was a factual issue. Here, however, the Commission found there is total and permanent disability.

Larson, Workmen’s Compensation Law, § 59-31, notes that the Second Injury Fund, adopted in all but one state (Supp. 1980), is the solution to the dilemma of responsibility of an employer when a second injury occurs. “The usual provision makes the employer ultimately liable only for the amount of disability attributable to the particular injury occurring in his employment, while the fund pays the difference between that amount and the total amount to which the employee is entitled for the combined effects of his prior and present injury.” § 59-31- “The primary policy of the legislation is well understood; it is to remove the competitive employment disadvantage suffered as a result of compensation law by handicapped workers in states having a nonapportionment background, and to remedy the inadequacy of awards to such workers in states previously apportioning disability.” § 58-32. “. . . [S]everal states have special apportionment provisions in their statutes, under which an employee with a prior disability receives for a subsequent disability only what he would have been entitled to for the latter disability considered alone.” § 59-20, Supp. 1980 citing Intl. Paper Co. v. Remby, 256 Ark. 7, 505 S.W. 2d 219 (1974). In that case we held the employee was entitled to collect only for the new injury from the second employer.

Further, the statute in question, § 81-1313 (f) (2) (iii), was recently amended by adding a new subsection to be effective January 1, 1981. See Act 253 of 1979- The amendment which clarifies any uncertainties, provides in pertinent part:

If the previous disability or impairment or disabilities or impairments whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; . . . the employee shall be paid the remainder of the compensation that would be due for permanent total disability under Section 10 [§ 81-1310] out of the second injury fund.

In the circumstances, we are of the view that the petitioner is only liable for the degree of disability that' the respondent employee suffered during his employment with it, and the Second Injury Fund is responsible for the additional compensation as provided in the statute.

Neither can we agree with the respondent Fund that the first injury must be an injury that would have been compensable under the act. It cites no cases so holding. However, it urges this is the interpretation compelled by the use of the words “disabilities” and “injuries” in the statute. Larson has discussed this matter in § 59-32:

Another attempt at narrowing the range of prior injuries covered has been the contention that only cases involving prior compensable disabilities were affected. This contention was based on a rather mechanical interpretation, arrived at by lifting the words ‘prior disability’ out of the second injury statute and applying to them the definition of .‘disability’ which appears elsewhere in the act. The Supreme Court of the United States rejected this artificial and technical reading of the provision, in the light of the well-known general purpose of the act, observing that ‘From the attitude of experts in the field, one would not expect Congress to distinguish between two types of handicapped workers.’
However, the prior impairment, although not actually a compensable disability, must have been of a physical quality capable of supporting an award if the other elements of compensability were present.

No contention is made that respondent Greer does not meet these requirements.

The Commission properly awarded Greer’s attorney the statutory maximum fee on all benefits controverted. However, it did not make a finding as to the responsiiblity for payment. The petitioner and later the trial court requested the Commission to clarify its finding, which it did not do. Upon remand the Commission is directed to clarify the issue and order full payment of the statutory award.

Reversed and remanded.

Stroud, J., dissents.

John F. Stroud, Justice,

dissenting. I respectully dissent with the interpretation of Ark. Stat. Ann. § 81-1313(f)(2)(iii) (Repl. 1976) given by the majority opinion. The applicable portion of the statute provides:

(f) Second injury: In cases of permanent disability arising from a subsequent accident, where a permanent disability existed prior thereto: . . .
(2)(iii) If an employee who had previously incurred permanent partial disability through the loss of one [1] hand, one [1] arm, one [1] foot, one [1] leg, or one [1] eye, incurs permanent total disability through the total loss of another member, enumerated in this sentence, he shall be paid in addition to the compensation for permanent and partial disability provided in Section 13 (c) . . . additional compensation .. . (Emphasis added.)

The amendment made to the statute in 1948 only added the word “total.” I can conceive of no reason for the General Assembly to have amended the statute and added the word “total” unless it meant for the Second Injury Fund to be applicable only upon the “total loss of another member.” The majority opinion construes the statute as urged by Petitioner from a disability viewpoint rather than from an anatomical viewpoint. If the legislature had intended for the Second Injury Fund to be applicable when the use of a second member is lost, I believe it would have said so by inserting the appropriate words “total loss of use of another member.”

The General Assembly has seen fit to amend the statute again, and, among other things, makes the Second Injury Fund applicable when a loss of use of a second member occurs:

If the previous disability or impairment or disabilities or impairments whether from compensable injury or otherwise, and the last injury together result in total and permanent disability, the employer at the time of the last injury shall be liable only for the disability resulting from the last injury considered alone and of itself; . . . the employee shall be paid the remainder of the compensation that would be due for permanent total disability under Section 10 [§ 81-1310] out of the special fund known as the second injury fund.

Ark. Stat. Ann. § 81-1313 (i)(l) (Supp. 1979).

The amendment just quoted does not become effective until January 1, 1981. The majority opinion has in effect amended the statute prior to its effective date to reach the same result provided by the latest amendment. I would affirm the finding of the Arkansas Workers’ Compensation Commission and the decision of the Arkansas Court of Appeals that the Second Injury Fund is inapplicable to the claim of respondent Starling Greer.


author: Frank Holt, Justice.

text:
    Donald A. McCORKLE v. STATE of Arkansas
    CR 80-127
    607 S.W. 2d 655
    Supreme Court of Arkansas
    Opinion delivered October 13, 1980
    As amended on denial of rehearing December 8, 1980

      Lessenberry & Carpenter, by: Thomas M. Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Upon finding appellant guilty of kidnapping his estranged wife, a jury assessed his punishment at fifteen years in the Arkansas Department of Correction and a $15,000 fine.

Appellant rendered his wife unconscious by the application of a towel saturated with ether, bound her hand and foot, placed her in a car, and physically abused and threatened to kill her. Upon his stopping the car a third time, due to her entreaties, she managed to escape. There was evidence that the purpose of the abduction was to persuade the prosecutrix to talk with him about the resolution of their pending divorce action.

Appellant asserts (by present counsel) that the court erred in limiting evidence of the pending divorce between them. Appellant argues that the nature of their divorce proceeding was a critical issue which affected her credibility. Therefore, any limit on the cross-examination of her concerning their marriage and resulting divorce action was prejudicial error inasmuch as it constituted relevant evidence as defined by Ark. Star. Ann. § 28-1001, Rule 401 (Repl. 1979).

The general rule is that a cross-examiner is given wide latitude and cannot be unduly restricted in eliciting facts which affect a witness’ credibility. Gustafson v. State, 267 Ark. 830, 590 S.W. 2d 853 (1979). It is not an abuse of discretion to interfere with or limit cross-examination of a witness when it appears the matter has sufficiently been developed and clearly presented to the jury. Richardson v. State, 80 Ark. 201, 96 S.W. 752 (1906). Here appellant was permitted to ask his estranged wife on cross-examination if she ever told a friend she would drop the matter if appellant would agree to give her a divorce and all his property. This she denied. On recross he was allowed to ask her about the personal property she had taken when she left appellant on several occasions. She denied knowledge of a letter from her attorney stating her demands for settlement in the divorce. She could not say what the total amount of money was that she took each time she left appellant. Apparently, counsel acquiesced with the court’s statement that the jury knew or was aware of her interest in the case. In our view sufficient inquiry about the pending divorce action, on cross-examination, was permitted on relevant matters which affected her credibility. Therefore, there was no abuse of discretion. Neither do we agree that the court unduly restricted appellant’s testimony as to the couple’s marital difficulties. He was permitted to testify that he had obtained his first divorce at his present wife’s insistence, and the three times she had left him during their five years marriage she had taken a total of $35,000.

Appellant next contends that the trial court erred in permitting a deputy prosecuting attorney to testify on rebuttal. He argues his testimony was not proper rebuttal evidence, and further, the witness had not been placed under the rule or sequestered as required by § 28-1001, Rule 615. On cross-examination by the state, appellant testified that, during the time of their marital troubles, he went to a dance studio to find out when his wife took lessons. He denied that he had forcibly taken the appointment book at the studio; and he further denied that when he appeared at the prosecuting attorney’s office, upon the incident being reported, he wore a moustache or a wig. The deputy prosecuting attorney, who had interviewed the appellant, was called as a rebuttal witness. According to him appellant came into his office wearing a loose fitting wig and a false moustache.

The discretion of the trial court in refusing the testimony of a rebuttal witness is narrow when the witness had violated the rule of sequestration of witnesses and more readily abused by excluding the testimony than by admitting it. Woodward v. State, 261 Ark. 895, 553 S.W. 2d 259 (1977), and Williams v. State, 258 Ark. 207, 523 S.W. 2d 377 (1975). Here the need for the rebuttal testimony did not arise until after appellant testified to his mode of dress. The witness was in the courtroom only briefly and did not hear the appellant testify. There is no contention that the testimony he did hear, a policeman’s, was in any way related to the matter about which the deputy testified, nor does it appear from the record. We find no error. Further, it is not error for the state to fail to disclose the name of a rebuttal witness when, as here, the prosecuting attorney cannot anticipate whom he will call on rebuttal until the defense presents its case. Parker v. State, 268 Ark. 441, 597 S.W. 2d 586 (1980). Neither can we agree, in the circumstances, that appellant has demonstrated prejudicial error in that the court failed to permit him to voir dire the jury at the time this rebuttal witness was presented. We also observe that appellant’s broad argument that the witness’ testimony was not proper rebuttal evidence is not supported in the record by such an objection. He only objected to this witness’ testimony on the basis he was not sworn prior to trial, the jury was not voir dired with respect to this witness, he was not sequestered as a witness, and as a member of the prosecuting attorney’s office the witness might have heard parts of the trial during the proceedings.

Finally, we cannot agree with appellant’s argument that permitting the deputy prosecutor to testify on rebuttal is impermissible because of his position in the judicial process. Suffice it to say that no authority is cited to us nor do we know of any which supports this position.

Affirmed.

Mays, j., not participating.


author: Darrell Hickman, Justice.

text:
    Richard C. MADISON et al v. PULASKI FEDERAL SAVINGS & LOAN ASSOCIATION et al
    80-5
    606 S.W. 2d 571
    Supreme Court of Arkansas
    Opinion delivered October 13, 1980
    Rehearing denied November 17, 1980

      Kenneth E. Suggs, for appellants.

      Wright, Lindsey & Jennings, for appellees.
   Darrell Hickman, Justice.

The appellee, Pulaski Federal Savings and Loan Association, filed a foreclosure suit on a note and mortgage, signed by Richard C. Madison and others, in Pulaski County Chancery Court. The court decreed the foreclosure, rejecting the defenses of usury and breach of contract. Madison raises those same arguments on appeal and we find no merit to them.

A $30,000.00 note was signed on July 12, 1977, by Madison, his wife, and two others. It bore interest at nine percent per annum, payable in monthly installments of $241.39 for thirty years, beginning the 12th day of December, 1977. This was a routine construction money arrangement whereby Madison was to draw up to $30,000.00 to build his house, with regular monthly payments to commence six months later. Pulaski Federal charged a $300.00 commitment fee.

The house was not completed in December and Pulaski Federal began collecting the interest due on the amount that had been advanced. By that time the amount advanced was over $20,000.00. In April, 1978, Pulaski Federal learned that laborer’s and materialmen’s liens were being filed against the property. On inquiry, Pulaski Federal learned that in addition to the amount advanced, liens and additional debts were due, totalling over $27,000, which exceeded the loan’s unadvanced balance of $9,066.44. Beginning in May, 1978, Pulaski Federal declined to advance any further sums after it was informed by its escrow agent, Lawyer’s Title of Arkansas, Inc., that any further advances might jeopardize its title insurance coverage. Two payments of $241.39 were collected by Pulaski Federal in 1979 but Madison’s account was credited so that only interest that had accrued on the amount advanced was paid to Pulaski Federal. The balance was credited to the principal sum that had been advanced.

The Madison’s expert witness testified that if $241.39 were paid toward a debt of $20,933.56 over the period of the original note, then about 13% interest would be charged. That, of course, is not the case here. The chancellor found no intent to charge or collect usury and the facts bear out his conclusions.

The other issue raised is that since Pulaski Federal failed to advance the balance of the loan, the Madisons’ painting business failed and Pulaski Federal should pay damages for that failure. The chancellor found against the Madisons on this issue and we cannot say that his decision was clearly erroneous. Pulaski Federal had a right under its mortgage to foreclose. The mortgage had a clause which reads as follows:

[I]f any action or proceeding is commenced which materially affects Lender’s interest in the property, . . . then Lender at Lender’s option . . . may . . . take such action as is necessary to protect Lender’s interet....

Pulaski Federal was justified in foreclosing because Madison was delinquent in his payments and both laborer’s and materialman’s liens had been filed against the property.

Affirmed.


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

text:
    William E. (Pete) HAYNES v. STATE of Arkansas
    CR 80-91
    606 S.W. 2d 563
    Supreme Court of Arkansas
    Opinion delivered October 13, 1980
    Rehearing denied November 24, 1980

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

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   John I. Purtlb, Justice.

Appellant was tried and convicted of first degree battery and aggravated assault with a firearm. The jury asssessed his punishment at 20 years on first degree battery and 10 years on aggravated assault with a firearm.

On appeal appellant urges four grounds for reversal: (1) the court erred in excluding veniremen who expressed reservations about assessing the combined maximum possible sentence to the offense charged; (2) the evidence was insufficient to support the verdict; (3) the court erred in failing to read AMCI 203 to the jury immediately following reference to a former felony conviction; and, (4) AMCI 301 as given was improper.

We find the evidence was sufficient to support the conviction. We also find appellant failed to timely request AMCI 203 and a correct version of AMCI 301. We must reverse, however, on the first argument.

During the trial, several witnesses testified that they saw the appellant draw the weapon and fire several shots. There was also undisputed proof that Henry Stone was struck by one of the bullets and suffered severe and permanently disabling injuries. Other witnesses testified that there was a truck driver named Shirley Smith in the restaurant and that one of the bullets penetrated her hat. Although Shirley Smith did not appear at the trial, several witnesses testified they saw a hole in her hat before the shooting and that there was no hole in it at the time. Thus, there clearly was sufficient evidence to support the conviction.

During an in-chambers hearing, the appellant’s attorney obtained the agreement of the court to read AMCI 203 immediately following any questioning by the state about appellant’s prior felony conviction. The state did in fact ask about the prior conviction, but the court failed to immediately read AMCI 203. However, the record does not show the appellant requested the instruction be read at that time. The instruction was eventually given along with all the other instructions at the close of the case.

AMCI 301 was given in a modified form as Instruction Nos. 11 and 19 to each of the charges. The pertinent portion of the instruction reads:

If you have a reasonable doubt as to which offense the Defendant may be guilty of, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the Defendant’s guilt of all offenses, you may find him not guilty. (Emphasis ours.)

The instruction should have been given in the following form:

If you have a reasonable doubt as to which offense the Defendant may be guilty of, you may find him guilty only of the lesser offense. If you have a reasonable doubt as to the Defendant’s guilt of all offenses, you must find him not guilty. (Emphasis ours.)

There was no objection made to the instruction as given. It is obvious the word “may” was substituted for the word “must” in the last sentence of AMCI 301. On retrial the instruction should be given as set forth in AMCI 301 without modification.

We will now consider the argument that jurors were subjected to improper voir dire and those who expressed a reservation about the maximum combined punishment were improperly excused for cause. In an effort to assist in a better understanding of the opinion, we believe it will be helpful to set out some portions of the voir dire examination of the jury panel verbatim. During the prosecutor’s examination he apparently sought to select a panel which would agree, in advance of the trial, to assess the maximum punishment if the appellant were found guilty. One remark made by the prosecuting attorney, during voir dire, regarding the assessment of punishment was:

* # #
MR. LONG: Ladies and gentlemen, as the Court has told you, the charges here, one is battery in the first degree, and two, aggravated assault. Now, battery in the first degree is punishable — You will be instructed, I think, by not less than three nor more than twenty years in Arkansas Department of Corrections. Aggravated assault, you will be instructed is punishable by up to five years in the Arkansas Department of Corrections. In addition it is alleged in the information that the aggravated assault was committed with a firearm, and you will also be instructed that, I think, if a firearm is used in the commission of aggravated assault, that an additional fifteen years can be imposed. Now, what this all amounts to is that if the State proves the allegations of the information in its entirety, the maximum punishment that can be imposed will be twenty years in the Arkansas Department of Corrections for battery and fifteen plus five will be another twenty years in the Arkansas Department of Corrections for aggravated assault, ladies and gentlemen, that is serious and it is a very severe punishment, but I want to tell you right here and right now up front that that is what the State’s going to be asking you to do, and that is to put Pete Haynes in the Arkansas Department of Corrections for forty years.

While prospective jurors Collins was being questioned, some of the questions and answers were as follows:

MR. LONG: As you sit there now, before you heard the facts, you feel regardless, that 40 years is just too much?
MRS. COLLINS: Well, yes, I do feel that way.
* * *
JUROR: Well, if he’s guilty of some of those things, will he get forty years, or lesser years, or could he get lesser years? Forty years is a long time out of a man’s life. Did he kill someone? I don’t know anything about the case.
THE COURT: Ask her again, Mr. Long.
BY MR. LONG:
Q. Mrs. Collins, that is what I am asking. No, he did not kill someone. Battery in the first degree is not killing. What I am asking and telling you is that I think the judge will instruct you that this man can receive up to forty years, and I understand that some of you — You may just feel like in any circumstances, regardless, that’s too long. I am asking: As you sit there right now, are you thinking, regardless of what the State proves,. that is just too long. I wouldn’t impose that much. Maybe I could impose twenty but I just couldn’t impose forty regardless of the facts. Is that the way you feel about it?
A. Well, I would have to hear the other side first.
Q. Well, that’s not the way I’m asking. What I’m asking, Mrs. Collins —
A. I would try to be fair.
Q, Yes, I understand that. I know that, but here’s the way I’m asking it to you. I’m asking: As you sit there right now, do you feel that for a battery and assault, that to put a man in the penitentiary for forty years is just too long regardless?
A. Well, yes, I do feel that way.
* # #

Mrs. Collins was excused for cause.

The prosecuting attorney repeatedly asked prospective Jurors if they could fix punishment at 40 years. One such question was:

***Now with that in mind, assuming that we are able to prove his guilt beyond a reasonable doubt on both offenses, assuming we proved his guilt, we are satisfied of his guilt, would you be able to consider as the only possible punishment, would you be able to impose a sentence up to forty years in the Department of Corrections if the facts warranted it?

Not only was it error to excuse Mrs. Collins for cause, but we disapprove the kind of questions that the prosecutor asked the prospective jurors.

The purpose of selecting a jury is to obtain a panel which will be fair and impartial to the accused as well as the state. We recognize the severe and aggravating circumstances of this case, but there are limits beyond which the state may not proceed without resulting in prejudice to the accused.

The jury in this case was composed of 12 people who may have felt obligated in advance of hearing the evidence, to consider imposing the maximum punishment if the accused were found guilty. They were not chosen upon their promise to consider the full range of penalties provided by law, as the court had correctly stated at one point earlier in the proceedings.

Although we do not agree with appellant that the Witherspoon doctrine is controlling here, we do adhere to the principle in Witherspoon v. Illinois, 391 U.S. 510, 522 n. 21 (1968), that both the state and the accused are entitled to an impartial and unbiased jury. In Witherspoon the question relates only to the penalty of death. It is proper in a capital case to determine if a prospective juror is irrevocably opposed to the death penalty regardless of the facts. If one juror so opposed to capital punishment were selected, it would effectively prohibit the death penalty in the case. A trial under such circumstances would be a useless and expensive exercise in futility. Countless people are opposed to capital punishment for any crime regardless of its nature, and it is a deeply emotional issue and in many cases is based upon religious beliefs and interpretations of the Bible. The question in capital cases is whether the juror would vote for the death penalty under any circumstances, not whether he considers the penalty excessive for the crime charged in the case before him.

There is usually no similar emotional feeling in regard to imprisonment for a certain number of years. No conscientious prospective juror should be required to say in advance of the trial whether he would consider the maximum penalty to be excessive. He should first be allowed to hear the testimony, observe the exhibits, hear the instructions by the court, and listen to the arguments of counsel. It is the duty of the jury to select the range of punishment it finds appropriate after hearing and observing the trial. Unless an impartial and unbiased jury is allowed to set the time a convicted felon shall serve, there is no need to require them to consider any question other than the guilt or innocence of the accused. The whole purpose of providing a variance in the time to be served by one convicted of a particular crime is to allow the jury to set the punishment at the number of years they feel is justified after hearing all the evidence in the case.

Mrs. Collins had been told the appellant had not killed anyone. Otherwise, she knew nothing about the case other than the charges against him which had been read to the panel by the court. She gave admirably impartial answers when she stated: “I would have to hear the other side first,” and “I would try to be fair.” This is precisely the type of answers a fair and impartial juror should be expected to give. However, her attitude was not acceptable to the state. Obviously, the state was attempting to obtain a jury which would agree, in advance of the trial, to inflict the maximum punishment if they found the accused guilty. A juror accepted for service after this type of questioning might understandably feel he was morally obligated to vote for the maximum sentence. Part of one frequent question put to the jury was, “If the facts warranted it,” would the juror vote to jmpose the maximum sentence. This was a wholly meaningless statement to a juror who had not yet heard the facts. Although many of the questions by the prosecutor were proper, there were many others who were not. The whole line of questioning reveals the prosecutor intended to select a jury which would vote for the maximum sentnece upon a finding of guilt. Because of the basic unfairness of the type of questions presented to prospective jurors by the state, we hold that the questions clearly constituted prejudicial error.

There is another practical reason for prohibiting the tactics used in this case. If we approve the questions that were asked, and the ensuing challenge for cause, prosecutors will consider it their duty to qualify the jurors for the maximum punishment whenever the state intends to suggest it. The result would be endless bickering, as occurred here, about the jurors’ answers to what are really unanswerable questions before the trial had been completed. Hundreds of prospective jurors will no doubt be needed before 12 are found who will be willing to promise, in advance of hearing the evidence, to impose the most severe sentence possible under the law. Not only would the trial process be greatly burdened and expanded in time and expense, but appeals would become commonplace. To allow such tactics might well be the straw that broke the camel’s back.

Both the state and the defendant are entitled to a fair and impartial jury, and the most that may be required of a juror, before the trial has begun, is that he be willing to consider all the penalties provided by law and that he not be irrevocably committed to vote against the possible penalties, regardless of the facts and circumstances that might ensue in the course of the trial.

Reversed and remanded.

Fogleman, C.J., and Hickman, J., dissent.

Darrell Hickman, Justice,

dissenting. I disagree with the majority’s decision which I interpret to mean that the State cannot successfully challenge a prospective juror who is committed before trial to voting against the maximum punishment even if warranted.

In my judgment, the majority opinion fails to evenly deal with the facts. First, the attorney prosecuting for the State quite properly made it clear from the beginning that he would challenge anyone who could not, under any circumstances, vote for the maximum punishment. An attorney representing the State is not denied that right in our advocacy system of law. In Witherspoon v. Illinois, 391 U.S. 510 (1968), the principle was laid down that the State may get 12 people who acknowledge in advance that they will, if warranted, give the death penalty; those who will not are excused because they are, in effect, biased against the State. The Court said in Witherspoon that the State is entitled to have a venireman who is . . willing to consider all the penalties provided by state law, and that he not be irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts. ...”

The State’s attorney prefaced all of his questions with phrases such as, “Would you be able to impose it?”; “Can you consider sending him to the penitentiary for 40 years?”; “. . . and if the facts warranted it, could you return a verdict . . .?” “. . . if the facts warrant, could you impose a sentence up to 40 years . . .?” There was no attempt at all on the part of the State to be unfair in qualifying this jury.

Two prospective jurors were excused for cause. The trial judge found that these jurors were irrevocably opposed to maximum punishment.

Mrs. Collins, whose testimony is quoted in part in the majority opinion, finally concluded: “Well, yes, I do feel that way.”

Mr. Banks, the other excused venireman who was challenged but whose testimony is not recited in the majority opinion, testified as follows:

Q. . . The Defendant here is charged with battery in the first degree, and first degree is punishable up to twenty years in the Department of Corrections. He is also charged with aggravated assault with the use of a firearm. That is likewise punishable up to twenty years in the Department of Corrections. That’s a total of forty years. That is a long time in a man’s life, but because of the facts in this case, that’s exactly the punishment the State is going to ask for, and the question I want to pose to you is this: Assume that after the evidence is in that you believe the State had proved the man’s guilt beyond a reasonable doubt as we are required to do on both offenses, battery in the first degree and aggravated assault and at that point, the maximum possible punishment would be forty years upon the Defendant in the Department of Corrections.
A. I could not.
Q. What I’m asking you is this: If you believe he’s guilty of both offenses beyond a reasonable doubt, you are convinced that in your mind, he’s guilty, would you automatically refuse to consider a punishment of up to forty years as possible punishment? Would you just refuse to consider it?
A. I couldn’t give forty years.
Q. Regardless of the facts and circumstances, you could not consider — even consider that?
A. Not forty years.
Q. Regardless of what the facts were?
A. No.
Q. Is that your answer?
A. That’s my answer.
[Emphasis added.]

We have several cases where we have discussed the application of the Witherspoon rule. In McCree v. State, 266 Ark. 466, 585 S.W. 2d 938 (1979), we discussed the testimony of several prospective jurors who vacillated back and forth as they were questioned by the defense attorney and the State’s attorney but, when finally questioned by the judge, said they could not vote for the death penalty. They were properly excused.

In Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934 (1980), we discussed another case where a juror equivocated repeatedly about her willingness to vote for or against the death penalty. Her final position as quoted in the Hulsey opinion, was as follows:

Q. Now, what I am trying to find out, even though you think he is guilty, would you automatically vote against the imposition of the death penalty would regard to any evidence that might develop in the trial of the case?
A. I believe I would, yes, sir, because I don’t want to take a life.

We said in Hulsey that the trial judge had the opportunity to observe the prospective juror and was in a position to weigh her somewhat contradictory versions in order to determine whether she was qualified under the Witherspoon rule. In such situations the trial judge has some discretion, a matter which the majority has totally ignored.

I cannot reconcile the majority holding with our cases involving the death penalty. It is not for us to judge whether a prosecuting attorney should attempt to qualify a jury for the maximum punishment. While it is a practice that ought to be used with care, because it can be abused, neither I nor the members of this court have the duty and responsibility of a prosecuting attorney to represent the best interests of the State. Our role regarding trial tactics is to review their legality, not advisability. Obviously a prosecuting attorney would be derelict in his duty if he did not in some cases seek the maximum punishment — from the beginning. In performing that duty he should be able to remove people from a jury panel who will not under any circumstances consider the maximum punishment. No doubt some people have strong feelings about certain crimes and would not impose a maximum sentence, although the facts might warrant it.

The prosecutor in this case was simply trying to get a jury that could, if it so determined, award the maximum punishment. The majority presumes that the jurors chosen would automatically vote for a maximum sentence if they found the defendant guilty; I find no evidence to support that conclusion. The questions by the State were properly phrased to see if a venireman could impose a maximum sentence. That is permitted by law.

The majority’s reference to the myriad of problems that will arise if we approve such trial tactics is, in my judgment, irrelevant. Prosecuting attorneys have for years inquired of prospective jurors concerning any prejudices that the jurors harbored regarding a particular offense or punishment. Just because that practice may cause us problems is no reason to deny the use of it. Our function is to solve problems, not avoid them.

In all due respect I feel the majority’s decision reflects a misconception of our system of law, a system based on an adversary presentation of evidence. The State’s attorney is obligated under that system to do all he can, within the law and ethical standards, to present the State’s case in the best possible light. By law the State is entitled to have the case heard by 12 people who have not already decided, before the trial, that a lawful sentence will not be imposed regardless of the circumstances. I feel the majority has denied the State that right - a decided departure from the principle of trial by advocacy.

Fogleman, C.J. joins in this dissent.


author:
John F. Stroud, Justice.
      Richard L. Mays, Justice,

text:
    CITY OF LITTLE ROCK v. INFANT-TODDLER MONTESSORI SCHOOL, INC. and Jyothi McMINN
    80-175
    606 S.W. 2d 743
    Supreme Court of Arkansas
    Opinion delivered October 13, 1980
    Rehearing denied November 17, 1980

      R.Jack Magruder, City Atty., and Carolyn B. Witherspoon, Asst. City Atty., for appellant.

      House, Holmes & Jewell, by: Robert L. Robinson, for appellees.
   John F. Stroud, Justice.

This is a suit for declaratory judgment to construe a portion of the zoning ordinances of the City of Little Rock. As we disagree with the findings of the chancellor, we reverse the decree.

Appellees purchased a parcel of real property in 1978 on Kavanaugh Boulevard with the intention of establishing a Montessori school for infants aged one through three years. The property was zoned “A” one-family district, as is the great majority of the property in the vicinity. However, there is an apartment house and duplex within the same half block of the subject property, a post office directly across the street, and a number of commercial establishments in the neighborhood. Appellees were denied permission by representatives of the city to use the property as a school for infants and toddlers.

After their appeals were denied by various administrative agencies, they ultimately brought suit seeking declaratory relief in the form of a judicial interpretation of Section 43-3-(3) of the Little Rock Code of Ordinances which provides:

In the “A” one-family district ... no building or land shall be used . . . unless otherwise provided for in this chapter, except for one or more of the following uses:
(3) Public schools, elementary and high, and other educational institutions with curriculum equivalent to a public elementary school or public high school.

The case was heard on November 7, 1979, and after reviewing the law and the evidence adduced, the trial court entered its decree on November 9, 1979, and found that the Infant-Toddler Montessori School, Inc., was a school with a curriculum equivalent to a public elementary school and was entitled as a matter of right to operate on property zoned as “A” single-family. Appellant raises four points on appeal, but as we agree with appellant’s contention that the trial court erred in finding that under the Little Rock zoning ordinance the school is allowed to operate as a matter of right on property zoned “A” single-family, we will not reach the others.

We need not discuss the merits of the Montessori method of instruction for, as well-regarded as it may be, that is not at issue here. Nor need we address the wisdom or constitutionality of the ordinance involved, for although in their complaint appellees attacked the ordinance in question as being arbitrary and capricious, they later stated unequivocally, in their brief in support of their response to appellant’s demurrer, that “there is no allegation that the ordinance is unconstitutional.” The chancellor’s finding that the zoning laws appear not to have been uniformly enforced in past years is also not pertinent to this appeal, nor can this suit abate those inequities.

It is undisputed that the school was established to serve as an educational institution or facility for children ranging in age from one to three years. Although other zoning classifications under the ordinance allow educational institutions without regard to the curriculum, the classification of “A” one-family district does not. The determinative issue, therefore, is whether the curriculum of the school is equivalent to that of a “public elementary school” as required by the ordinance.

Each side put on witnesses who testified as to how “public elementary school” should be defined, both under the ordinance and in common understanding and usage. The evidence seems to indicate that the only public educational institution in Little Rock with a curriculum akin to that of the appellee school is the early childhood education program of Rockefeller Elementary School. The chancellor specifically found:

The curriculum of the Infant-Toddler Montessori School, Inc. is equivalent to the curriculum of what was once called the Kramer Project, and which is now part of Rockefeller School, which is a school of the Little Rock Public School System, and the curriculum of the Infant-Toddler Montessori School, Inc. is equivalent to the curriculum promulgated for kindergartens by the Little Rock Public School System, which kindergartens are elementary schools.

However, the early childhood program was, and is, separate and apart from the kindergarten and grades one through six. In fact, a portion of the testimony of Dr. Betty Caldwell, an expert witness for appellee, indicates that there is a distinction between early childhood education and elementary education:

Q. Could you tell the Court very briefly what the Kramer project is and was?
A. Was, because it’s been moved out of the Kramer School now. Well, it was a project that was designed to bring early education from infancy onward into a public school situation in order to improve the articulation or the continuity between early education and what is traditionally called elementary education. And this was worked out in Kramer School so that where we had early childhood program that went from approximately six months of age through age five and then an elementary program that went from grades one up through either the fifth or sixth grade. (Emphasis added.)

It is clear that those involved with the Kramer Project recognized a distinction between early childhood education and what is generally referred to as elementary education. Both appellees and the trial court heavily relied upon the fact that the Kramer program was a curriculum equivalent to the appellee school and was implemented at a public elementary school; but, as has been pointed out, the Kramer early childhood education program was, and is, separate from the elementary program at the school.

Webster’s defines “elementary school,” as follows:

n. A school in which elementary subjects (as reading, writing, spelling, and arithmetic) are taught to children from about six to about twelve years of age which in the U.S. covers the first six or eight grades. . . .

Webster’s Third New International Dictionary (1961) p. 735. While this definition is not by itself dispositive of the question now before us, it does recite what is probably the most widely accepted definition of the term; and we think the City of Little Rock intended by the adoption of the ordinance that “public elementary school” should have its most commonly accepted meaning. The ages and accompanying capabilities of children as young as one year old are also evidence that the curriculum does not rise to the level of public elementary education. The record indicates that these students receive only the slightest and most basic training in reading and writing, surely the cornerstone of any elementary education program.

Pursuant to Rule 52 of the Arkansas Rules of Civil Procedure, the findings of the trial court should not be disturbed unless they are clearly erroneous. After reviewing all the evidence de novo as we do on appeal from a chancery court decision, we hold that the trial court clearly erred in finding that the curriculum of appellee school was equivalent to that of a public elementary school and, therefore, could operate as a matter of right on property zoned as “A” single-family. The chancellor awarded costs to appellees, which appellant contends was error. Appelant cites State v. Nelson, Berry Pet. Co., 246 Ark. 210, 438 S.W. 2d 33 (1969), which holds that the state is immune from costs when it acts in a governmental capacity in an action not brought by it, and appellant urges that we extend that immunity to a municipality as an agent of the state. This we are unwilling to do. Accordingly, the judgment of the trial court is reversed and this cause remanded for proceedings not inconsistent with this opinion.

Reversed and remanded.

Purtle, J., not participating.

Mays, J., dissents.

Richard L. Mays, Justice,

dissenting. The majority holds as a matter of law that the Infant-Toddler Montessori School is not an educational institution with a curriculum equivalent to a public elementary school. Basically, the majority asserts that a curriculum which addresses the educational needs of children from 1 to 3 years of age, as does the Montessori School, cannot be equivalent to a public elementary school which primarily addresses the educational needs of children from 5 to 12. I disagree. The evidentiary record below indicates to the contrary. The Infant-Toddler Montessori School has a curriculum which includes instruction in language development, math, science, geography, botany, zoology, reading, and motor development. The components of the school include a qualified staff, teaching materials, and learning aids. The educational structure and method used are comparable to those of the beginning grades of the public elementary schools.

Under these circumstances, I cannot say that the chancellor’s decision was clearly erroneous. I would affirm the judgment below.