author: Jack Holt, Jr., Chief Justice. Katherine C. Gay, Special Associate Justice,

text:
    NABHOLZ CONSTRUCTION CORPORATION v. Danny GRAHAM: Action Incorporated; and Lasley Acoustics Company
    93-1150
    892 S.W.2d 456
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      Laser, Sharp, Wilson, Bufford & Watts, P.A., by: David M. Donovan and Barrett & Deacon, by: J.C. Deacon and D.P. Marshall, Jr., for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., by; Robert L. Henry, 111 and R. Kenny McCulloch, for appellees.
   Jack Holt, Jr., Chief Justice.

Two issues are raised among the parties in this appeal and cross-appeal from a decision of the Searcy County Circuit Court in favor of appellee Danny Graham, an injured construction worker, on his negligence claims. At the heart of the dispute is an indemnity agreement between the general contractor, appellant Nabholz Construction Corporation, and two subcontractors, appellees Action, Incorporated, and Lasley Acoustics Company, for the injuries suffered by Mr. Graham.

The appellant, Nabholz Construction Company, contends that the trial court erred in (1) failing to enforce the subcontracts’ indemnity clauses and (2) instructing the jury on the doctrine of acquiescence as applied to the indemnity agreements between the general contractor and its subcontractors. The appellees and cross-appellants, Action and Lasley, maintain that the trial court erred in granting summary judgment on Nabholz’s indemnity claim (a point which entirely overlaps with Nabholz’s first argument). Appellee Danny Graham takes no position on the points raised by Nabholz but prays that the judgment in his favor be affirmed. Further, he requests that his cross-appeal against Nabholz be dismissed. We grant Mr. Graham’s request.

We hold that the trial court did not err in granting summary judgment on the indemnity agreements but erred in having failed to enforce the indemnity agreements (particularly in light of having granted summary judgment in favor of Nabholz with respect to the obligations created by the indemnity clauses) and in having instructed the jury on the applicability of the doctrine of acquiescence to the circumstances of the case.

Facts

In 1990, Nabholz Construction Company was engaged as general contractor for the construction of the Leisure Arts Building in Little Rock. Nabholz subcontracted with Action, Incorporated, to install the heating and air system in the building and with Lasley Acoustics Company to perform sheetrock work on the project. Both Action and Lasley signed standard subcontract forms which provided in pertinent part:

ARTICLE X. In addition to the foregoing provisions, the parties also agree that Subcontractor shall: . . .

9. (b) Indemnify, hold harmless and defend Contractor, its agents and employees from any lawsuits, causes of action, claims, liabilities and damages, of any kind and nature, including, but not limited to, attorney’s fees and costs arising out of the performance of this Contract whether attributable in whole or in part to any act, omission or negligence of Contractor, its agents or employees, and including, but not limited to, any and all lawsuits, causes of action, claims, liabilities and damages, as provided above which Contractor, its agents or employees may sustain by reason of any failure by Subcontractor to indemnify as provided herein, or any failure by Subcontractor to otherwise perform its obligations pursuant to this Contract, or by reason of the injury to or death of any person or persons or the damage to, loss of use of or destruction of any property resulting from Work undertaken herein.

(Underlining in original.)

On the morning of November 15, 1990, Richard Day, the Nabholz job superintendant, learned that Action was nearing the stage at which it would be ready to install its duct work through the second floor, which was covered by a concrete slab except for a “block-out” area that consisted of sheet metal. In preparation, Mr. Day instructed one of Nabholz’s metal workers to cut out the section of sheet metal in the “block-out” area and ordered Nabholz’s carpentry foreman to cover the resulting hole, which was done with a sheet of plywood not affixed to the floor. The plywood remained in place for several hours, and no oral or written warnings were given about it.

Appellee Danny Graham, a sheetrocker or drywaller, was an employee of Lasley and, on November 15, 1990, was working at the Leisure Arts job site hanging drywall on the second floor of the building. In the afternoon, he lifted the piece of plywood covering the “block-out” hole in order to move it out of his way and fell through the opening to the concrete floor below, injuring himself.

After the accident, Mr. Graham filed suit against Action and Nabholz. Nabholz, in turn, cross-complained against Action and filed a third-party complaint against Lasley contending that it was entitled to indemnification from the two subcontractors. Before the matter came to trial, Mr. Graham dismissed his claim against Action.

Prior to trial, the trial court granted a partial summary judgment in favor of Nabholz, finding that the indemnity agreements of Action and Lasley with Nabholz created an obligation to indemnify Nabholz. At the conclusion of the trial, the circuit court also, over Nabholz’s objection, read the following instruction to the jury:

As a defense to this claim of indemnity, Action and Lasley contend that Nabholz acquiesced in the condition which caused Danny Graham’s damages. Acquiescence, if established by the evidence, is a defense for indemnity.
Acquiescence means that Nabholz Corporation not only knew of the hole in the floor and its condition but that Nabholz also acquiesced in the continuation of the hole in that condition. The fault of Nabholz Construction must be serious enough and sufficiently distinct from any fault of Action and/or Lasley before the defense of acquiescence applies.

The case was submitted on interrogatories to the jury, which unanimously found that Nabholz had been 100 percent at fault and that the defense of acquiescence had been established with regard to Nabholz’s indemnity claim. Damages against Nabholz in the amount of $1,100,000 were awarded, and the trial court, in line with the jury’s verdict, entered its judgment finding that Action and Lasley were not obligated to indemnify Nabholz.

From that judgment, the present appeal and cross-appeal arise.

I. Indemnification

Nabholz argues, in its first point for reversal, that the trial court erred in failing to enforce the indemnity clauses that appeared in the subcontracts executed by Action and Lasley. In an overlapping point on cross-appeal, which will be considered here, Action and Lasley urge that the trial court erred in granting summary judgment on the indemnity agreements, contending that the clauses in question did not contain clear and unequivocal language and that Mr. Graham’s injury did not “arise out of the performance of’ either subcontract.

Concerning the cross-appeal, the trial court correctly found that, by the terms of the indemnity clause, Action and Lasley had clearly and unequivocally agreed to indemnify the general contractor against injuries caused solely by Nabholz’s negligence. Action and Lasley, as cross-appellees, insist that the agreement shows no such intent and point to cases in which indemnity clauses have been strictly construed.

This court has held that a contract of indemnity is to be construed in accordance with the general rules of construction of contracts. Arkansas Kraft Corp. v. Boyed Sanders Const. Co., 298 Ark. 36, 764 S.W.2d 452 (1989). If there is no ambiguity in the language of the contract, then there is no need to resort to rules of construction. Id. But a subcontractor’s intention to obligate itself to indemnify a general contractor for the general contractor’s own negligence must be expressed in “clear and unequivocal terms and to the extent that no other meaning can be ascribed.” Paul Hardeman, Inc. v. J.I. Hass Co., 246 Ark. 559, 566, 439 S.W.2d 281, 285 (1969).

In the Hardeman case, for instance, this court held that the uncertainty of the manner in which the term “occasioned by” was used in an indemnity clause negated the “clear and unequivocal” intent that was necessary on the part of the subcontractor to bind itself for the negligence of the general contractor. While we focused on the ambiguity of “occasioned by,” it is worth noting that the indemnity clause in that case did not specifically allude to accidents “occasioned by” the general contractor; rather, the section spoke of

all liability, claims, demands or judgments for damages arising from accidents to persons or property occasioned by Subcontractor, his agents or employees, and ... all claims or demands for damages arising from accidents to Subcontractor, his agents or employees, whether occasioned by Subcontractor or his agents or his employees. . . .

246 Ark. at 565, 439 S.W.2d at 284. Although not remarked upon by this court in Hardeman, the lack of reference to the general contractor compounded the ambiguity inherent in the term “occasioned by.”

In another decision, Pickens-Bond Const. Co. v. North Little Rock Elec. Co., 249 Ark. 389, 459 S.W.2d 549 (1970), we held that the subcontractor had clearly and unequivocally agreed to indemnify the general contractor where the indemnity clause provided that:

[the subcontractor] shall specifically and distinctly assume, and does assume, all risks of damage or injury from whatever cause to property or persons used or employed on or in connection with his work, and of all damage or injury from any cause to property wherever located, resulting from any action or operation under this sub-contract or in connection with his work. . . .

249 Ark. at 391, 459 S.W.2d at 551. We remanded the matter for a determination of whether the general contractor’s active negligence had been the sole proximate cause of the accident in the case, noting that, in the event the general contractor’s sole negligence were established, it could not recover under the indemnity clause. In the second appeal, we affirmed the trial court’s directed verdict in favor of the general contractor on the question of the sole proximate cause. North Little Rock Elec. Co. v. Pickens-Bond Const. Co., 253 Ark. 172, 485 S.W.2d 197 (1972).

Here, Action and Lasley assert on cross-appeal that there is ambiguity and uncertainty in the indemnity clause drafted by Nabholz. They highlight the phrase “including, but not limited to, attorney’s fees and costs arising out of the performance of this Contract whether attributable in whole or in part to any act, omission or negligence of Contractor, its agents or employees” and argue that, because of the absence of a comma, both “arising out of’ and “whether attributable” modify “attorney’s fees and costs.”

It is obvious enough from even a cursory reading of the indemnity clause that the portion of the sentence in question beginning with the gerund “arising” relates back to the phrase that immediately precedes “including”:

Indemnify, hold harmless and defend Contractor, its agents and employees from any lawsuits, causes of action, claims, liabilities and damages, of any kind and nature, including, but not limited to, attorney’s fees and costs arising out of the performance of this Contract whether attributable in whole or in part to any act, omission or negligence of Contractor, its agents or employees. . . .

(Emphasis added.) Unlike the indemnity clause in Hardeman, here, the general contractor is clearly identified as indemnitee.

In this respect, the situation is similar to that in Southside Water Ass’n, Inc. v. Hargan, 270 Ark. 117, 118, 603 S.W.2d 466, 467 (Ark. App. 1980), where the Arkansas Court of Appeals ruled that the language of an indemnity contract was clear and unequivocal in obligating the subcontractor to indemnify the general contractor for claims relating to “injury, death or damage” that might “in any way arise out of the prosecution of the work hereunder by the Contractor or subcontractors, and without regard to negligence on the part of anyone whomsoever.” If anything, the indemnity clause at issue in the present case is even more unequivocal in its stated intent to absolve Nabholz in particular of liability “whether attributable in whole or in part to any act, omission or negligence of Contractor, its agents or employees.” It therefore cannot be said that the trial court erred in finding Nabholz’s indemnity clause to be clear and unequivocal in meaning.

The question remains, then, whether the trial court, having gone thus far, erred in not requiring indemnification. Action and Lasley, for their part, essentially make a public-policy argument for affirming the judgment, although they acknowledge that we have not previously held an agreement indemnifying the indemnitee for its own negligence to be a violation of public policy. Indeed, this court indicated in both Paul Hardeman, Inc. v. J.I. Hass Co., supra, and Pickens-Bond Const. Co. v. North Little Rock Elec. Co., supra, that indemnification contracts are not against public policy.

Despite references to public policy considerations in Action’s appellate brief, this issue was not sufficiently developed at trial, and no ruling on it was obtained from the circuit court. Moreover, public policy is declared by the General Assembly, not the courts. Murphy v. Epes, 283 Ark. 517, 678 S.W.2d 352 (1984).

In short, we hold, with respect to Action’s and Lasley’s cross-appeal, that the trial court did not err in granting summary judgment on the indemnity agreements but that, with regard to Nabholz’s appeal, it committed reversible error in failing to enforce the indemnity agreements between the parties.

II. Acquiescence

Nabholz argues, in its second point for reversal, that the trial court erred in instructing the jury on the application of the defense of acquiescence to the indemnity agreements. We agree that the concept has no relevance to the circumstances of the present case.

The doctrine of acquiescence is set forth in the Restatement of the Law of Restitution, § 95 (1937):

Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.

(Emphasis added.) As the italicized phrases indicate, acquiescence, as defined above, is more applicable to a party in Action’s or Lasley’s posture than to Nabholz as the solely negligent entity.

Moreover, the cases upon which Action and Lasley rely to support their view that the instruction on acquiescence was warranted are, as they acknowledge, all decisions dealing with railroad sidetrack agreements and the Federal Employers Liability Act (FELA). Burlington Northern, Inc. v. Hughes Bros., Inc., 671 F.2d 279 (8th Cir. 1982); Rouse v. Chicago, Rock Island & Pacific Railroad Co., 474 F.2d 1180 (8th Cir. 1973); Missouri Pacific Railroad Co. v. Winburn Tile Mfg. Co., 461 F.2d 984 (8th Cir. 1972); Missouri Pacific Railroad Co. v. Arkansas Oak Flooring Co., 434 F.2d 575 (8th Cir. 1970); Pennsylvania Railroad Co. v. Erie Avenue Warehouse Co., 302 F.2d 843 (3rd Cir. 1962).

The Eighth Circuit Court of Appeals, in Rouse v. Chicago, Rock Island & Pacific R.R. Co., supra, and Missouri Pacific R.R. Co. v. Arkansas Oak Flooring Co., supra, imported the tort concept of acquiescence into a set of contractual duties. It did so, however, in the context of specific federal law (FELA) and particular factual circumstances (railroad spur-track accidents). The present situation is simply not comparable.

Action and Lasley nevertheless contend that the general principle embodied in those cases — that the defense of acquiescence can defeat the indemnification claim of a party whose misconduct triggered liability — is equally applicable to other fact situations. Still, the origins and application of the doctrine cannot be ignored. We have never adopted the doctrine of acquiescence, and we decline to do so now. The trial court erred in allowing the issue of acquiescence to go to the jury.

We dismiss the cross-appeals and reverse and remand the appeal for proceedings consistent with this opinion.

Glaze and Roaf, JL, not participating.

Special Justice Katherine C. Gay concurs.

Katherine C. Gay, Special Associate Justice,

concurring. I concur in the decision of the court to reverse and remand this case, but write separately to state that the contracts before the court are against public policy, and if they are not, they should be. The facts of this case bring into sharp focus the problems that develop when a contracting party is able to obtain absolute indemnity when its own negligence is the sole proximate cause of damage.

Graham was injured as a result of Nabholz’s total inattention to safety at its construction site for the Leisure Arts Building in Little Rock. The testimony in that regard is uncontradicted. On the day of the incident, a Nabholz employee cut a three-foot square hole in the floor of the second story of the building, for heating and cooling ductwork to pass through. He laid a sheet of plywood over the hole. The plywood was not fastened down in any way, although it would have been easy to do so. No warning was written on the plywood, although it would have been easy to do so. No signs were placed over the plywood to warn that it covered a hole, although Nabholz had such signs available to it at the work site. No one warned the workmen on the second floor that there was a hole under the plywood. Graham, a sheetrocker, was clearing debris from the floor in the area of the hole in order to place scaffolding to hang sheetrock. When he lifted the plywood and stepped forward to shove it aside, he fell through the hole in the floor.

The public policy of the State of Arkansas as it relates to safety in the workplace is expressed in Ark. Code Ann. § 11-2-117(a) (1987):

Every employer shall furnish employment which is safe for the employees therein and shall furnish and use safety devices and safeguards. He shall adopt and use methods and processes reasonably adequate to render such an employment and place of employment safe and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of the employees.

The term “employer” includes a corporation having control of a place of employment. Ark. Code Ann. § 11-2-102. As general contractor, Nabholz had control of the construction site of the Leisure Arts Building in Little Rock, and therefore Nabholz is an “employer” to which Ark. Code Ann. § 11-2-117 applies. However, the contracts with Lashley and Action have the effect of absolving Nabholz from all financial responsibility to any injured party for failing to render that workplace safe. Where a contract removes all financial incentives to provide a safe place to work, that contract is in violation of public policy expressed by our legislature in enacting Ark. Code Ann. § 11-2-117.

Nabholz argues that the type of contract at issue was common in the construction industry, and amounts to no more than an agreement as to which party would bear the cost of insurance. I find significant differences between the absolute indemnity Nabholz claims from Action and Lasley, and a contract of insurance. Insurance is governed by statute and heavily regulated. The availability and cost of indemnity offered by insurance is based on the experience rating of the insured. And the indemnity provided by an insured policy has a financial limit.

In the case at bar, the only legal control imposed on the absolute indemnity contracts is found in a series of decisions of this court over the past twenty-five years, in all of which the court has strained mightily to avoid upholding such contracts. Nabholz did not have to demonstrate insurability or a history of safe practices to obtain the indemnity, and in fact did not have to pay for it at all — the agreement to indemnify was a price the subcontractors had to pay for the privilege of doing business with Nabholz. And the indemnity Nabholz acquired had no financial limit. Nabholz took the position at oral argument that if Graham’s injuries had been found compensable in the sum of $50,000,000 by the jury, Action and Lasley would have been liable to it for that sum, even though Nabholz was the sole cause of the damage and Action and Lasley were innocent of any wrongdoing.

It is obvious from the record that Nabholz had no financial incentive to provide a safe place to work. The legislature in Ark. Code Ann. § 11-2-117, has expressed a public policy in favor of preventing workplace accidents. In terms of social benefit, prevention of injury is even more important than adequate compensation for injury. Yet the contracts at issue made Nabholz totally unaccountable for its creation of a dangerous place to work. Therefore the contracts are against public policy.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Sherman NOBLE v. STATE of Arkansas
    CR 94-572
    892 S.W.2d 477
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      Jeff Rosenzweig, for appellant.

      Winston Bryant, Att’y Gen., by: Clint Miller, Senior Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The present appeal is from a denial of post-conviction relief pursuant to Ark. R. Crim. R 37.1 in a case previously entertained on appeal and dismissed by this court in Noble v. State, 314 Ark. 240, 862 S.W.2d 234 (1993). In that appeal, we held that the appellant, Sherman Noble, who had entered a conditional guilty plea to a capital-felony murder charge, had failed to adhere to the requirements of Ark. R. Crim. P. 24.3(b) regarding both the consent of the trial court and the prosecutor and the reservation in writing of his right to appeal.

In the present Rule 37 appeal, Noble contends that, contrary to the circuit court’s finding, he received ineffective assistance of counsel at the trial level and On appeal as a result of the trial counsel’s failure to preserve a written memorial of the right to pursue a conditional appeal under Ark. R. Crim. P. 24.3(b). More particularly, he asserts that, while the circuit court was correct in finding that he had established cause to complain under the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984), the court erred in finding that he had not shown prejudice due to counsel’s wrongdoing. We disagree and affirm the judgment of the trial court.

Facts

It was unnecessary to set forth the facts in our opinion in Noble’s initial appeal. However, in order fully to comprehend the scope of this review, we must now examine the circumstances and proceedings leading to Noble’s claim.

On March 21, 1992, Sherman Noble, a Little Rock resident, and two companions attempted to steal a BMW automobile from Tresia Jester, who was parked by a pay telephone at a service station in Pine Bluff. As Ms. Jester tried to leave in the car, Noble fired a sawed-off shotgun and killed her. Afterward, Noble left the other two men and returned to Little Rock.

The Pine Bluff Police Department received information about Noble’s identity and location in Little Rock. On April 11, 1992, three Pine Bluff officers joined law enforcement authorities in Little Rock and one of the murder suspects, already in custody, for surveillance of a house where Noble was believed to be residing. As Noble left the house with another suspect in a pick-up truck, the third suspect positively identified him for the police. The officers followed the truck to a parking lot nearby, where both of the occupants were taken into custody. Each of the three suspects was placed in a separate facility, and a Pine Bluff police car transported Noble to Pine Bluff. Meanwhile, officers obtained a statement from one of the other suspects that incriminated Noble.

After arriving at the Pine Bluff Police Department, Noble was questioned at some length. At first, he denied having been in Pine Bluff on the night of March 21, 1992. Subsequently, he gave a statement at 5:06 p.m., indicating that he had been present at the time of the shooting but had not fired the fatal shot. Instead, he said, “the gun went off.” The statement was transcribed by Detective Sergeant James Bacon and signed by Noble.

Dissatisfied with his response, the officers sought to obtain another statement and transported Noble to the local Arkansas State Police Headquarters for a polygraph examination. There, he was interviewed by Investigator John Howell, a polygraph examiner. The polygraph examination, however, was never administered. Instead, after a conversation with Investigator Howell, Noble asked for a piece of paper and wrote a statement admitting that, when he and his friends spotted Ms. Jester’s car:

I jump out car drunk with a gun that was not suppose to have any bullets in it he [“Veno,” a companion] went to one side and I went to the other the woman got scared and tried to pull off but the tip of the gun was in the window and she pull off that jerk the gun because all at same time she was letting her window up and fired and that’s how it happen and I’m sorry today that happen but also ready to do almost any thing or punishment given.

The time recorded on the rights form was 8:16 p.m. on April 11, 1992.

On April 14, 1992, the State filed an information in Jefferson County Circuit Court charging Noble and his two companions with capital felony murder. Noble filed a motion on June 4, 1992, to suppress the in-custodial statements. The circuit court held an evidentiary hearing on August 18, 1992, in connection with the motion to suppress.

At the suppression hearing, Detective Lieutenant Mack Cook of the Pine Bluff Police Department testified that he read the “Standard Rights Form” to Noble at 5:06 p.m. on April 11, 1992, just before the first statement was transcribed by Sergeant Bacon. He explained to Noble why he was in custody and what the charges were. Lieutenant Cook participated in the questioning and noted that Noble never requested an attorney.

After the completion of the initial interrogation, the officers asked Noble if he would be willing to go to State Police Headquarters for a polygraph examination. Noble stated that he would but that he wanted to phone his mother in Forrest City first. He was allowed to make the call and eat dinner, after which Lieutenant Cook’s involvement with the process ended.

Detective Rick Hill was present during the entire interview in Pine Bluff and confirmed Lieutenant Cook’s testimony that Noble had not requested an attorney but said he would be willing to take a polygraph test after speaking with his mother. When the phone conversation ended, according to Detective Hill, Noble indicated that he was ready to continue the interview. Although Detective Hill accompanied Noble to State Police Headquarters, he was not present during the interview with Investigator Howell.

Detective Sergeant James Bacon testified that the officers “knew we were going to be given a false statement from the start when we talked to Mr. Noble.” He stated that, prior to the taking of the first statement, he retrieved photographs of Ms. Jester and handed them to Lieutenant Cook, who showed them to Noble. During the interview, Sergeant Bacon said, Noble brought up the subject of the Christian faith. According to Sergeant Bacon, he told Noble that, in his own belief as a Christian, “it did not matter who judged him on earth as long as he was right with the man upstairs.”

Sergeant Bacon also noted that Noble never asked for an attorney and never sought to stop the interrogation. After the first statement was given, Sergeant Bacon said, Noble agreed to speak with State Police Investigator Howell, requesting only that he be allowed to speak with his mother before going. Sergeant Bacon then dialed the number.

Investigator John Howell of the Arkansas State Police, a polygraph examiner, testified that he met with Noble in the C.I.D. office at about 8:15 p.m. on April 11, 1992. He read the waiver of rights form to Noble, who signed the document after indicating that he did not want a lawyer and had not been subjected to promises, threats, pressure, or coercion.

At that point, Investigator Howell began discussing the polygraph examination with Noble. In a conversation lasting ten or fifteen minutes, he spoke to him about his Roman Catholic faith and the importance of telling the truth. Investigator Howell also emphasized that, with the aid of the test, “I will know ... for a fact, whether or not . . . you fired the shot.” After about ten or fifteen minutes of what Investigator Howell described as a “very casual” conversation, Noble said, “I want to tell you the truth.” He then wrote his second, inculpatory statement.

Noble’s testimony at the hearing was at some variance with that of the police officers. Noble recounted that when the photographs of Ms. Jester were produced he stated, “Man, you said I can stop my questions at any time,” and “I just stopped.” He claimed that Sergeant Bacon began talking to him about his religious background and said, “The truth will get you out. The truth will set you free.”

The officers, said Noble, alternately told him he was lying and declared that they believed him, saying they would “take you down to the polygraph tester to make sure you are telling the truth.” Noble testified that the officers continued to press him on the need to submit to a polygraph examination. He asserted that the officers never advised him that he didn’t have to take the test.

According to Noble, he did not agree to take the polygraph examination after talking to his mother but instead indicated that he wanted to see what she thought about it, “and then I’ll come back and let you know.” His mother admonished him to wait until she could come to Pine Bluff on the next day. When he got off the phone, Noble said, Sergeant Bacon “cussed me out,” saying, “No, you’re bullshitting us. We let you use the phone and you are still bullshitting us. You told me you was going to take the polygraph test after you talked to your mother.” Noble testified that he then told the detective, “I ain’t going to take the test. I’m just going to wait until she get up here.” At that, Noble averred, Sergeant Bacon cursed at him again, though not in a loud voice, “and I looked around the room and it was something like six or seven of them. I said, ‘Man, forget it. I’ll go on and take it.’ ”

When Investigator Howell interrogated him, Noble said, he placed great emphasis on his Catholic faith and the importance of telling the truth. Noble stated that Investigator Howell stressed that, once he was connected to the polygraph machine, he would “know for sure” if he were telling the truth. As Investigator Howell continued to bring up “this religious thing” and began talking about confessing sins to God, Noble was, by his own account, ready to write his statement.

Noble admitted that he never requested to speak to an attorney. He acknowledged having had his rights read to him and having initialed the rights form. He stated that he had graduated from high school and had briefly attended college and business school. Noble admitted having been arrested twice, for possession and delivery of a controlled substance and burglary and theft of property.

After hearing the testimony, the circuit court found that the custodial statements were given freely and voluntarily. A conditional guilty plea was entered on October 25, 1992, and Noble was sentenced to life imprisonment without parole. He attempted to pursue a direct appeal to this court under Ark. R. Crim. P. 24.3(b). However, as noted above, this court dismissed the matter in light of his failure to conform to the rule’s requirements concerning the consent of the trial court and the prosecuting attorney and the written reservation of the right to appeal, leaving Noble’s plea and sentence in place. Noble v. State, supra.

Subsequently, Noble filed a post-conviction petition in the Jefferson County Circuit Court, seeking relief under Ark. R. Crim. R 37.1. On March 7, 1994, the circuit court entered an order denying the petition. Eight days later, on March 15, 1994, the court entered an amended order denying relief under the Strickland v. Washington two-pronged “cause” and “prejudice” test. The circuit court found that Noble had established cause, noting that the trial counsel’s failure to observe the procedural requirements for preservation of the right of appeal “fell below the standard of competence required, whether that is denominated as ineffective assistance of counsel at trial or on appeal.”

In applying the appropriate standard for determining prejudice — whether there was a reasonable probability that Noble would have succeeded on the merits of his appeal had it been determined on the merits — the circuit court observed that “To make that finding would in essence require the Court to reverse its decision on the motion to suppress from which Defendant attempted to appeal.” Noting that there was no further evidence to present, the circuit court declined to reverse its ruling denying the motion to suppress. From that decision, this appeal arises.

Rule 37.1

For reversal, Noble argues that the circuit court erred in denying the petition seeking post-conviction relief pursuant to Rule 37.1. He contends that he received ineffective assistance of counsel at both trial and appellate levels as a result of the trial counsel’s failure to reserve in writing the right to pursue a conditional appeal under Ark. R. Crim. P. 24.3(b).

A defendant in a criminal case is entitled to the effective assistance of counsel on direct appeal. Evitts v. Lucey, 469 U.S. 387 (1985). According to Noble, his former appellate counsel was ineffective as measured by the standards set forth by the United States Supreme Court in Strickland v. Washington. Those standards were explicitly adopted by this court in Dumond v. State, 294 Ark. 379, 743 S.W.2d 779 (1988).

In Strickland, the Supreme Court held that:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.

466 U.S. at 687.

A court deciding an ineffectiveness claim must judge the reasonableness of the challenged conduct on the facts of the particular case within the context of the wide range of presumptively competent assistance. Id., at 690. But even professionally unreasonable errors by counsel do not warrant setting aside a conviction if the errors were not prejudicial to the defense and had no effect on the judgment. Id., at 691-2. It is necessary to show, in the second prong of the Strickland test, that, but for counsel’s errors, the outcome of the criminal proceeding would have been different. Rowe v. State, 318 Ark. 25, 883 S.W.2d 804 (1994); Dumond v. State, supra.

The circuit court’s finding that Noble had established the first prong of the Strickland test relating to the deficient performance of his attorney (or “cause,” as the circuit court phrased it) is not at issue in the present case. It is necessary, therefore, to address the second prong relating to prejudice.

This court must determine whether there is a reasonable probability that the outcome of the case would have been different but for counsel’s error. See Pruett v. State, 287 Ark. 124, 697 S.W.2d 872 (1985). The critical issue, then, for purposes of this review, is whether it is reasonably probable that Noble’s direct appeal would have been successful. In order to determine whether Noble would have prevailed on a direct appeal, we must consider whether the circuit court correctly concluded that the in-custody statements were freely and voluntarily given and properly denied Noble’s motion to suppress the custodial confession.

Custodial statements are presumed to be involuntary. Weaver v. State, 305 Ark. 180, 806 S.W.2d 615 (1991); Moore v. State, 303 Ark. 1, 791 S.W.2d 698 (1990). In Miranda v. Arizona, 384 U.S. 436, 467 (1966), the United States Supreme Court recognized that custodial interrogation inherently produces “compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Hence, the Court in Miranda imposed a clear standard obliging police to apprise a suspect of the State’s intention to use his statements to secure a conviction and, further, to inform him of his rights to remain silent and, if desired, to have counsel.

The State must prove to the trial court by a preponderance of the evidence that the defendant’s custodial statement was voluntary. Ark. Code Ann. § 16-89-107(b) (1987). Moreover, the burden is on the State to show that the confession in question was made voluntarily, freely, and understandingly, without hope of reward or fear of punishment. Thomas v. State, 315 Ark. 504, 868 S.W.2d 483 (1994); Jackson v. State, 284 Ark. 478, 683 S.W.2d 606 (1985).

In determining whether a custodial statement is voluntary, this court undertakes an independent review of the totality of the circumstances and reverses only if the trial court’s findings are clearly against the preponderance of the evidence. Thomas v. State, supra; Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991). Only if the totality of the circumstances reveals both an uncoerced choice made by the defendant to relinquish his right to remain silent and a full awareness of the nature of the right being abandoned and the consequences of the decision to abandon it may a court properly conclude that a defendant’s Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412 (1986); Mauppin v. State, 309 Ark. 235, 831 S.W.2d 104 (1992).

The totality of the circumstances is subdivided into two further components: the statement of the officer and the vulnerability of the defendant. Thomas v. State, supra; Sanders v. State, supra. Among the factors to be evaluated in considering the totality of the circumstances are the age of the accused, lack of education, low intelligence, lack of advice of constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Henderson v. State, 311 Ark. 398, 844 S.W.2d 360 (1993).

In reviewing the totality of the circumstances, we must refocus on the facts in detail and, in doing so, resolve all doubts in favor of individual rights and safeguards. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). However, in reviewing a trial court’s ruling on the suppression of custodial statements, we view the evidence in the light most favorable to the State. Moore v. State, supra. When testimony on the circumstances surrounding the taking of a custodial confession is conflicting, it is the trial court’s province to weigh the evidence and resolve the credibility of the witnesses. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994); Thomas v. State, supra; Orr v. State, 288 Ark. 118, 703 S.W.2d 438 (1986).

Two custodial statements are at issue in the present case. With respect to the first, transcribed at the Pine Bluff Police Department by Sergeant Bacon, Noble points out that the interrogating officers departed from normal policy by not taping the interview. He states in his brief that the police continued to interrogate him, even after he had given his first statement and had said that he wanted to stop. The officers acknowledged having been unconvinced by the initial statement and having persisted in questioning Noble because his account was at variance with those of his co-defendants. We have held that persistent questioning based upon the interrogator’s assumption of the accused’s guilt will not render a resulting confession involuntary, particularly when the accused’s story is presumed to be untrue on the basis of statements given by other persons present at the time of the crime. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, 440 U.S. 911 (1979).

Noble also claims that the appeals to his religious sympathies made in connection with both statements were coercive and prompted his confession. Sergeant Bacon had admonished him that “in my belief as a Christian it is not who judges you on this earth, it is what the good Lord will judge at the end of your life, and that’s the only person you have to be right with.” Inspector Howell had told Noble that he was a Catholic and that it was important to tell the truth.

These appeals are characterized by Noble as “significantly evocative” of the “Christian burial” speech disapproved by the United States Supreme Court in Brewer v. Williams, 430 U.S. 387 (1977). In that case, however, the accused had already invoked his right to counsel and terminated the interrogation, and the voluntariness of the confession was not at issue. In the present case, the remarks on religion occurred during two different interrogations in which Noble never requested counsel.

The police may use some psychological tactics in eliciting a custodial statement from an accused. See Miller v. Fenton, 796 F.2d 598 (3rd Cir. 1986), cert. denied sub nom. Miller v. Neubert, 479 U.S. 989 (1986). For example, the police may, without violating an accused’s rights, attempt to play on his sympathies or explain to him that honesty is the best policy, provided that the accused’s decision to make a custodial statement is voluntary in the sense that it is the product of the accused’s exercise of his free will. Miller v. Fenton, supra. Appeals to an accused’s religious sympathies do not automatically render a confession involuntary. See Welch v. Butler, 835 F.2d 92 (5th Cir. 1985); Stawicki v. Israel, 778 F.2d 380 (7th Cir. 1985).

On the basis of the evidence presented at the suppression hearing and the arguments set forth in his brief, it cannot be said that Noble was so singularly vulnerable to the broadly based religious appeals made by the police officers that his free will was completely overborne. Indeed, the extent of Noble’s religious conviction is illuminated by his comment at the suppression hearing that “I told [the police] I was a Baptist and believed in God and all.” Although he claims that Investigator Howell urged him to confess all his sins, Investigator Howell’s own testimony does not indicate that such an exhortation occurred. Any conflict in the testimony was for the circuit court to resolve. Thomas v. State, supra.

Noble also asserts that the police engaged in coercive conduct by showing him photographs of the murder victim. Again, police officers are permitted to exert psychological pressure on an accused so long as they do not completely overbear his free will. See Miller v. Fenton, supra. Showing a murder suspect photographs of the murder victim is not inherently coercive police conduct, as indicated by the case of Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1990), cert. denied, 112 S. Ct. 161 (1991). There, the Ninth Circuit Court of Appeals held that the police did not coerce a confession from the accused by showing him for identification purposes photographs of the corpses of his father and stepmother, whom he had killed with a shotgun. In the present case, the display of photographs of Ms. Jester did not exceed the bounds of non-coercive psychological tactics.

A credibility question is at issue in Noble’s assertion that the police officers denied him the right to remain silent in connection with the taking of the polygraph examination. We have held that, once an accused has invoked his right to remain silent, the police must scrupulously honor that right. Hatley v. State, 289 Ark. 130, 709 S.W.2d 812 (1986). The testimony, however, was in conflict, and it was for the circuit court to resolve the credibility of the witnesses. Thomas v. State, supra. As for Noble’s contention that the “more damning statement” was obtained through Investigator Howell’s claims for the reliability of his polygraph equipment, we have held that telling an accused that he would not pass a polygraph examination if he did not tell the truth was not a threat. Gardner v. State, supra. In any event, the polygraph examination was never administered.

Finally, Noble himself testified that he had attended college and business school and had previous experience with the criminal justice system, having been arrested on drug, burglarly, and theft charges and having had his Miranda rights read to him. In the present case, he had signed and initialed a Miranda form.

Thus, it cannot be said that Noble suffered prejudice or that the trial court committed reversible error in denying post-conviction relief.

Affirmed.


text:
    James E. SMEDLEY v. Carolyn Ann SMEDLEY
    94-782
    892 S.W.2d 273
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      William R. Simpson, Jr., Public Defender, by; Judy W. Rudd, Deputy Public Defender, for appellant.
    No Response.
   Jack Holt, Jr., Chief Justice.

The appellant, James E. Smedley, appeals from a probate judge’s finding that he had a mental illness and posed a clear and present danger to himself, which resulted in his being committed involuntarily to an out-of-state mental health receiving facility for a period of forty-five days pursuant to Act 861 of 1989, as codified in Ark. Code Ann. § 20-47-215 (Repl. 1991).

Mr. Smedley acknowledges that his case is moot, as the period of his involuntary hospitalization has past, yet he appeals on the grounds that we should review the trial court’s findings because the case involves issues of public interest in that there was insufficient evidence to admit him involuntarily for treatment; that the trial court exceeded its jurisdiction by ordering inpatient treatment outside the boundaries of Pulaski County; and that such inpatient treatment was not the least restrictive appropriate setting for treatment. Since the case is moot and none of the issues raised on appeal was preserved at the trial level, we dismiss this appeal.

Mootness may not determine whether we review a case which involves the public interest, or which tends to become moot before litigation can run its course, or in which a decision might avoid future litigation. Campbell v. State, 300 Ark. 570, 781 S.W.2d 14 (1989), Mastin v. Mastin, 316 Ark. 327, 871 S.W.2d 585 (1994). However, we are especially disinclined to produce such an opinion in a one-brief case where the matter has not been fully argued or even contested. Id.

A review of the record reflects that none of the issues raised on appeal was properly presented to the trial court by Mr. Smedley, nor did he make any objections as to the findings or actions of the trial court of which he now complains. He seeks what would be tantamount to a purely advisory opinion in this one-brief case on matters that have not been fully argued or contested. It is contrary to our practice to issue advisory opinions to decide academic issues, and we decline to do so. See Beatty, et al. v. Clinton, 299 Ark. 547, 772 S.W.2d 619 (1989).

Appeal dismissed.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    CITY OF LITTLE ROCK, Arkansas et al. v. B.A. McINTOSH, Pulaski County Assessor, and Pulaski County, Arkansas
    94-158
    892 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995

      The Rose Law Firm, A Professional Association, by; M. Jane Dickey and Amy Lee Stewart, and Thomas M. Carpenter, City Attorney, by: Melinda Raley, Deputy City Attorney, for appellants.

      Nelwyn Davis, Pulaski County Civil Attorney, for appellee.
   Robert H. Dudley, Justice.

This case involves a claim of exemption from ad valorem taxation. The City of Little Rock owns the Little Rock Municipal Airport and has delegated the operating responsibility of the airport to the Little Rock Municipal Airport Commission. The Commission leases some of the tracts of the airport property to private businesses. In July 1992, the Pulaski County Tax Assessor notified the City that ad valorem taxes were being extended to some of these tracts. The private businesses located on the tracts are four car rental companies, one aircraft modification company, two aircraft service companies, and three fixed-base operators.

The City of Little Rock and the Little Rock Municipal Airport Commission petitioned the Pulaski County Court to remove the properties from the tax rolls and claimed an exemption based on the public purposes exemption of article 16, section 5(b) of the Arkansas Constitution.

The county court held that the tracts were exempt from taxation and ordered them removed from the tax rolls. The county court found that “the activities provide services that directly support and are part of the public purpose to be accomplished.” It additionally found that these uses were “necessary to adequately serve the public purposes” and that “‘[p]rivate operation’ does not in and of itself remove the ‘public purpose’ reasoning from the exemption.”

The County appealed to the Pulaski County Circuit Court, which reversed, relying upon our decision in Arkansas Conference Association of Seventh Day Adventist, Inc. v. Benton County Board of Equalization, 304 Ark. 95, 800 S.W.2d 429 (1990). The circuit court ruled that although it is convenient for patrons of the airport to have these businesses located on airport property, their primary purposes are private. The circuit court also found persuasive the fact that the private businesses are competing with other taxpaying businesses in the area, and, consequently, the court found them to be nonexempt under the strict construction requirement imposed in tax exemption cases. The City appeals and contends that the properties are exempt from ad valorem taxation. We hold that the properties are not exempt from ad valorem taxation and, as a result, affirm the circuit court.

Article 16, section 5(b) provides: “The following property shall be exempt from taxation: public property used exclusively for public purposes. . . .” Ark. Const, art 16, § 5(b). We have stated that the test for exemption under the provision is (1) whether the property is public property and (2) whether it is being used exclusively for public purposes. Phillips v. City of Fayetteville, 306 Ark. 87, 811 S.W.2d 308 (1991).

The parties stipulated that all of the property under the direction of the Commission is public property, and they do not discuss the issue in this appeal. It is not necessary for us to explore the issue because we affirm the case on the second part of the test by holding that the property is not used exclusively for public purposes. Even so, we note that the value of leaseholds obtained from a government can be private property subject to taxation. See Ex Parte Gaines, 56 Ark. 227 (1892); Ark. Code Ann. §§ 26-26-905 & -1202 (1987). In addition, under the terms of most of the leases, the private businesses, not the City, own the improvements. The record in this case does not show whether the assessed valuation is made on the improvements, or on the land alone, or by adding them together.

We now address the second part of the test, whether the tracts are being used exclusively for public purposes. The taxpayer must establish the entitlement to an exemption from taxation “beyond a reasonable doubt.” Pledger v. Baldor Int’l, 309 Ark. 30, 827 S.W.2d 646 (1992). A strong presumption operates in favor of the taxing power. Ragland v. General Tire & Rubber Co., 297 Ark. 394, 763 S.W.2d 70 (1989). Tax exemptions are strictly construed against the exemption, and “to doubt is to deny the exemption.” Baldor, 309 Ark. at 33, 827 S.W.2d at 648. The constitutional exemption provision is never to be used to give one business an advantage over another. Higler v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960). On appeal, we review tax cases de novo, setting aside the findings of fact by the trial court only if clearly erroneous. Pledger v. Easco Hand Tools, Inc., 304 Ark. 47, 800 S.W.2d 690 (1990).

The circuit court ruled that the property was not used exclusively for public purposes. The law is almost uniform that a “public purpose” contemplates that the use must be common to all and not to a particular group. Holiday Island Suburban Improvement Dist. No. 1 v. Williams, 295 Ark. 442, 445, 749 S.W.2d 314, 316 (1988). Further, we have recently reiterated that even when proceeds received from public property rented for private purposes are used for public purposes, the land is taxable, as the actual use must be public. See Pulaski County v. Carriage Creek Property Owners Improvement Dist. No. 639, 319 Ark. 12, 888 S.W.2d 652 (1994) (citing School Dist. of Fort Smith v. Howe, 62 Ark. 481, 37 S.W. 717 (1896)).

The City contends that it is required to furnish the services provided by the private businesses under Federal Aviation Administration regulations and under state statutes. It argues that the businesses located on the various tracts fulfill public purposes because they are an indispensable part of the airport.

The City cites a document entitled Airport Compliance Requirements, Order No. 5190.6a, which is published by the Department of Transportation under which the Federal Aviation Administration operates, for the proposition that it is required to furnish the services to the public which are provided by the private businesses located on the tracts in question. The document requires that an airport provide “activities offering flight services to the public, or support services to other flight operations, to the extent that there may be public need for such services.” It encourages that “services and conveniences [be] available to attract and encourage flight activity [or] the investment may be hard to justify.” However, the Order’s “Scope and Authority” section states:

The airport compliance function is a contractually-based program. It does not attempt to control and direct the operation of airports. Rather it is a program to administer valuable rights obtained for the people of the United States at a substantial cost in direct grants of funds and in donations of Federal Property.
Such grants and donations are made in exchange for binding commitments designed to assure that the public interest would be served.

The FAA regulations neither control the public purpose of the airport for state tax purposes, nor do they preempt the imposition of ad valorem taxes upon the lands involved. While Congress has legislated broadly and comprehensively in the area of airspace and flight control and has effectively precluded any exercise of police power in those areas, see City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624 (1973), it has not prohibited ad valorem taxation of airport property. The FAA regulations do not determine whether the ground on which private businesses are located serves a public purpose for ad valorem tax purposes.

The City cites section 14-360-302 of the Arkansas Code Annotated of 1987 for the proposition that cities have the authority to own and operate airports and cites section 14-360-304 for the proposition that it “is authorized to lease airport premises to private businesses of any nature, whether or not they are essential to, connected with, or incidental to the operation of the airport.” The cited statutes state that the tracts in question are public land, but they do not provide that the land is exempt from taxation. The City cites another statute, section 14-361-124(a), which provides that property acquired for public use pursuant to the Airports in Border Municipalities and Regional Airports Acts “shall be exempt from taxation to the same extent as other property used for public purposes.” However, the statute, by its very wording, is of no help to the City. The City additionally cites section 14-362-121(b)(l) for the proposition that a Regional Airport Authority “shall be exempt from all local and municipal taxes.” Again, the statute must be read in light of the constitution, and that means that an airport authority will be exempt from paying ad valorem taxes when the land is used solely for public purposes.

In construing the constitutional provision, we have expressly held that municipally-owned airport land that is leased to private industries is not used for public purposes and therefore is taxable. B.D.T. v. Moore, 260 Ark. 581, 543 S.W.2d 220 (1976). The constitution is clear: Exclusive public use is a necessary element for exemption from ad valorem taxes. Phillips, 306 Ark. at 92, 811 S.W.2d at 311.

The City contends that the leases at issue fulfill a public purpose because they provide essential services to the airport, and the airport is a public facility. The properties in question fall in three general categories: (1) car rental agencies; (2) private aviation service companies that provide aircraft repairs, interior and exterior remodeling of aircraft, and electronic equipment repairs; and (3) fixed-base operators.

The Commission leased four tracts to four private car rental agencies: Budget Rent-a-Car, Dollar Rent-a-Car, Hertz Rentals and Careo Rentals (one agency), and National Car Rentals. The proof showed that there is an Avis Car Rental agency directly across the street from the Budget agency. The Budget agency is located on the grounds of the airport, and the Avis agency is not. Budget and Avis are competitors in the same kind of private business, renting cars to the general public, but because Avis is not on grounds owned by the City, it pays ad valorem taxes. In Hilger, we stated that the exemption should never be allowed to give one business an advantage over another, and in Brodie v. Fitzgerald, 57 Ark. 441 (1893), we said exemptions must be construed to give equality to all. Hilger, 231 Ark. at 695, 331 S.W.2d at 856; Brodie, 57 Ark. at 448. All of the car rental agencies, those paying ad valorem taxes and those not paying the tax, serve the public, but that is different indeed from exclusively serving a public purpose.

The claim of exemption for tracts on which the car rental agencies are located must fail for a more basic reason. The City leased the tracts to private car rental agencies and their purpose is private gain. When the exemption from ad valorem taxation depends upon the use of the property “then the general rule is that the exception does not apply to property rented out to others by the exempt association or to other property held or used by it merely as a source of revenue, except that a mere occasional renting out, not interfering with the primary use of the property by the lessor, does not affect the exemption.” 2 Thomas M. Cooley, The Law of Taxation § 686 at 1435-37 (4th ed. 1924). In City of Hope v. Dodson, 166 Ark. 236, 266 S.W. 68 (1924), we wrote:

The property in question was situated within the corporate limits, and was not used for any purpose of private gain. The idea of a public park in a city is that it is a place of resort of the people generally for recreation and amusement. The evidence shows that the property was used as a public park, and more particularly for track meets. It is fairly inferable, however, that it was used and kept for the recreation of the citizens. The use of it to exhibit the resources and progress of the county was in the nature of a public use which was calculated and intended to benefit the city. Besides this, the property was used for keeping the stock of the city which were used in working the streets. No element of private gain entered into the use of the property at all, and we are of the opinion that it was used exclusively for public purposes within the meaning of the Constitution, and therefore exempt from taxation. Of course if, at any time in the future, it should be used by the city for the purpose of private gain, it would become subject to taxation.

Id. at 240, 266 S.W. at 69-70 (emphasis supplied).

In School District of Fort Smith v. Rowe, 62 Ark. 481 (1896), we wrote:

It seems clear that the intention was to exempt only that public property which in itself directly subserved some public purpose by actual use, as distinguished from property belonging to the public but not used by it, and from which a benefit accrues to the public, not by the immediate use thereof by the public, but indirectly through selling or renting the same to private parties.

Id. at 486 (emphasis supplied).

It has long been our law that when public land is leased or rented for private uses, ad valorem tax is imposed, even if the profits go back into the public treasury. Id. It would be incongruous, then, to allow exemptions for businesses for which the primary purpose is profit when the profit is not returned to the public. The private businesses in this case provide valuable services to the airport, just like a printing press and a laundry provided valuable services to the college in Hilger. However, as we said in Hilger, to state that the businesses are privately run for profit is “incidental” would “result in whittling away at the intent of the Constitution.” Id. at 696, 331 S.W.2d at 857.

The City makes the same arguments for the aircraft modification center and the two aircraft service centers. Similar to each of the car rental agencies, the aircraft modification center and the aircraft service centers are private businesses located upon public property. The aircraft modification center uses its leased premises primarily for modifying the interior and exterior of aircraft and secondarily for the sale of new and used aircraft, aircraft repair, and taxi and charter services. One of the aircraft service centers sells and services aircraft engines, engine parts, and components; while the other sells and repairs commercial and aircraft radios and provides special aircraft repair services. Just like the car rental agencies, these three private businesses serve the public in hope of making a profit, but that is different from exclusively serving a public purpose.

For the same reasons, the leases of public property to the three fixed-base operators can not be said to exclusively serve a public purpose. These three operators are private businesses that sell, lease, and service airplanes; sell aircraft parts and equipment; store aircraft and offer taxi and charter aircraft services; and have flight schools. As set out in Hilger and Howe, private businesses are not exempt from ad valorem taxation.

The City also argues that the circuit court misapplied the case of Arkansas Conference Association of Seventh Day Adventist, Inc. because the businesses are “only incidentally for private purposes;” therefore, their “predominant use” is public. A short answer to the argument is that the ruling of the trial court was not clearly erroneous because the City failed to show the source and amounts of the businesses’ incomes. The city did not prove whether most of the income came from public-type services, such as servicing transient aircraft, or from more private services, such as selling airplanes. However, the more correct answer is that the “predominant and incidental use” distinction is not applicable when public property is leased to a private business. In Hilger, we explained this when we refused to find that the operation of a private business was only “incidental” to legitimate public purposes and stated that such a finding “could result in whittling away the intent [of the exclusive public purpose requirement for exemptions] of the constitution.” Hilger, 231 Ark. at 696, 331 S.W.2d at 857. The “predominant and incidental” use could have been an issue if the County had alleged that the City had to pay ad valorem taxes on all of its airport property because the predominant use of all the airport property was for private business. That issue is not before us.

Affirmed.

Glaze, Corbin, and Roaf, JJ., dissent.

Tom Glaze, Justice,

dissenting. The majority opinion’s removal of the Little Rock airport properties from tax exemption status is unconvincing for many reasons. First, it places heavy emphasis on the principle that for public property to be exempt under Ark. Const, art. 16, § 5(b), it must be used exclusively for public purposes. While that statement of the law is true, it omits another part of the law that applies in tax exemption cases. In this respect, the opinion ignores the well-settled rule that, where the primary and principal use to which the property is put is public, the mere fact that income is incidentally derived from its use does not affect its character as property devoted to public use. Yves v. City of Ft. Smith, 207 Ark. 694, 182 S.W.2d 683 (1944); see also Arkansas Conf. Ass’n of Seventh Day Adventist, Inc. v. Benton Co. Bd. Equalization, 304 Ark. 95, 800 S.W.2d 426 (1990); Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960).

Second, the majority tends to gloss over the fact that, during the past years, the fixed-base operators (FBO), maintaining facilities for general aviation owned aircraft, had not been taxed. Bob Wofford, appraiser for the Pulaski County Tax Assessor’s Office, conceded that he had no idea why these airport properties had previously enjoyed tax-exempt status. On the other hand, Wofford was equally obtuse when asked what changes had occurred to make the Pulaski County Assessor believe the FBOs’ services no longer were for a public purpose, thereby making the City’s airport property subject to taxation. One example of Wofford’s lack of expertise and understanding of these matters can be found in his following testimony:

In my mind, there is distinction between the common carrier aspect of the regional airport and the private carrier aspect of the properties at issue here. The common carrier aspect lends itself to the public purpose of the airport. This is a public airport, where people go to fly to places whereas the other businesses out there seem to be more engaged in the repair and refurbishing and building of aircraft or something along that line.
In my opinion, even the charter services are not what they are called common carrier type services. They are not scheduled. I’m not 100% clear on this. I don’t know that there are regularly scheduled arrivals and departures on charter services, but right or wrong, I just have a tendency to view the commercial airport as a public airport and all these other things as private.
* * *
I am not an expert in airport management. I have never been affiliated with the Federal Aviation Administration (“FAA”) in any way. I have been affiliated with airlines. (Emphasis added.)

Third, while Mr. Wofford seemed puzzled over when airports should be considered operational for private or public purposes, the uncontested proof is that, long ago, this property had been deeded to Little Rock for the City to develop and maintain air service for the general public; it has been put to such use since World War II. Mr. Harry Denton, Assistant Manager of the Little Rock Regional Airport, testified that this airport property provides landing strips, runways, taxiways, hanger facilities and common use areas for the general public. The general public, he said, included general aviation or FBOs that, on behalf of the Airport Commission, provide services to private owners of aircraft and companies that charter aircraft. Denton underscored that these FBOs are open to the public, and the City’s obligations to provide services are to the general public, including common carriers and privately owned aircraft. Denton further pointed out that the FBOs are essential to operating the airport and that these businesses are not in competition with any businesses off the airport premises.

Fourth, the exempt status given the Little Rock airport property over the past years is thoroughly consistent with Arkansas law. For example, Ark. Code Ann. § 14-361-124 (1987) specifically provides tax-exempt status for city airport property. Accordingly, in past years, that exemption has been given the Little Rock airport property. The Pulaski County Assessor has not shown that the Little Rock Airport is now being used any differently, and in fact, Appraiser Wofford admitted that all Little Rock airport properties in issue continue to be used for the same purposes for which they were used when they enjoyed tax exemption. See Hudgins v. City of Hot Springs, 168 Ark. 467, 270 S.W.2d 594 (1925).

Finally, but significantly, the proof is again uncontested that the Federal Aviation Administration (FAA) has preempted the authority of any state to regulate airports, and no state is free to ignore FAA’s regulations. FAA’s regulations and Order 5190.6A require Little Rock’s airport to provide, as a part of the City’s airport services, all the FBO services addressed in the leases of property which Pulaski County now seeks to tax. In explaining the reason for such FAA requirement, Mr. Denton quoted the following from FAA Order 5190.6A:

The operation of a public airport involves complex relationships that are frequently misunderstood. One can safely land an aircraft at the airport, but unless there are services and conveniences available to attract and encourage flight activity, the investment may be hard to justify. In most instances, the public agency owning the airport must turn to private enterprise to provide these services which will make the use of the airport by the public attractive and convenient.

Without setting out Order 5190.6A in its entirety, that Order unquestionably provides for services necessary to insure the public interest is served, and the City has entered leases with FBOs to provide essential services needed to fulfill that public purpose and interest. The majority opinion attempts to discount the importance of FAA’s authority to require FBO services by the Little Rock Airport by stating FAA regulations cannot preempt the imposition of ad valorem taxes upon airport property. That, of course, is not the issue. No one suggests FAA can promulgate a regulation that could preempt a state’s ad valorem tax law. The point is that FAA’s public interest or purpose regulations requiring FBO services on the Little Rock Airport premises in no way conflict with the mandate of Arkansas’s Constitution requiring public property to be used for public, purposes in order for it to be tax exempt.

In my opinion, the City of Little Rock met its burden in showing entitlement to exemption for FBO services, and the county assessor’s proof was miserably short in his attempt to show Little Rock’s tax exempt status should be changed. For the above reasons, I would reverse the trial court and direct the property in issue be removed from the tax rolls.

Corbin and Roaf, JJ., join this dissent.


author: David Newbern, Justice.

text:
    STATE FARM FIRE AND CASUALTY COMPANY v. Billy C. MIDGETT
    94-800
    892 S.W.2d 469
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995
    [Rehearing denied March 20, 1995.]

      Reid, Burge, Prevallet & Coleman, by: Robert L. Coleman, for appellant.

      Easley, Hicky & Cline, by: Preston G. Hickey, for appellee.
   David Newbern, Justice.

Billy C. Midgett, the appellee, was awarded damages, a statutory penalty, and attorney’s fee against State Farm Insurance Company (State Farm), the appellant. The claim arose from an accident in which Mr. Midgett’s tractor and sprayer attachment, which operated from the tractor’s power takeoff, were damaged in a collision with another vehicle. State Farm contends the evidence was insufficient to support the verdict and, in the alternative, that its motion for a new trial should have been granted due to trial errors. While we cannot say the evidence was insufficient to support the verdict, we must reverse the judgment and remand the case because the jury was given an instruction on ambiguity in the insurance policy which we deem to have been prejudicial to State Farm because there was no evidence of any ambiguity.

Mr. Midgett asserted the damages to his tractor were covered by his homeowner’s policy. The policy provided coverage of Mr. Midgett’s personal property with a $500 deductible clause. The policy also declared that, with respect to property used or intended to be used in a business, coverage was limited to $250 when the property was away from the residence premises. The tractor was being driven on a highway when the collision occurred. State Farm concluded, based on statements made by Mr. Midgett shortly after the accident, that the tractor was being used in a business. It thus paid only $250 on Mr. Midgett’s claim for over $6,000.

A separate declaration in the policy provided coverage was included for a motor propelled vehicle not licensed for use on public highways “used solely to service the insured location.”

The definitions section of the policy included the following:

* * *
2. “business” means a trade, profession or occupation. This includes farming.
5. “insured location” means:
a. the residence premises;
b. the part of any other premises, other structures and grounds used by you as a residence. This includes premises, structures and grounds you acquire while this policy is in effect for your use as a residence;
c. any premises used by you in connection with the premises included in 5.a. or 5.6;
d. any part of a premises not owned by an insured but where an insured is temporarily residing;
e. vacant land owned by or rented to an insured. This does not include farm land.
* * *

1. Sufficiency of the evidence

In statements made shortly after the accident, Mr. Midgett said the tractor was used in his business of renting houses and his sod farm business. In response to a request for admission he admitted the sprayer attachment was used on his farm. His testimony at the trial, however, was quite different. He said he referred to his home place as the “farm,” and he did not use the tractor in conjunction with his business of renting an office building or houses in Forrest City. He said the sod farm was his son’s business and he derived no income from it. Despite the inconsistencies, the jury apparently believed the trial testimony, and we cannot say it was insufficient to support the verdict in Mr. Midgett’s favor. The credibility of the witness presents a question for the jury to determine. Kempner v. Schulte, 318 Ark. 433, 885 S.W.2d 892 (1994); Olmstead v. Moody, 311 Ark. 163, 842 S.W.2d 26 (1992); Takeya v. Didion, 294 Ark. 611, 745 S.W.2d 614 (1988).

2. Ambiguity

Over State Farm’s objection, the Trial Court instructed the jury as follows: “Where language used in an exclusionary clause as to policy coverage is ambiguous, it should be construed in favor of the insured.” That was a correct statement of the law. See Keller v. Safeco Ins. Co., 317 Ark. 308, 877 S.W.2d 90 (1994); Cooper Tire and Rubber Company v. N.W. Nat’l Cas. Co., 268 Ark. 334, 595 S.W.2d 938 (1980). An ambiguity exists, however, only when a provision is susceptible to more than one reasonable interpretation. Keller v. Safeco, supra. If there is doubt or uncertainty as to the policy’s meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. Arkansas Farm Bureau Ins. Fed’n v. Ryman, 309 Ark. 283, 831 S.W.2d 133 (1992).

The only argument made during the trial to the effect that the policy was ambiguous was Mr. Midgett’s contention that the term “solely” as used in the phrase “used solely to service the insured location” was ambiguous. When arguing for the instruction to the effect that any ambiguity should be construed against State Farm, Mr. Midgett’s counsel asked, “What does ‘solely’ mean? Does that mean solely on that day, solely forever? And I think that’s an ambiguous term, and I’m going to argue that it is.”

During cross-examination of a witness for State Farm, Mr. Midgett’s counsel apparently attempted to show that the term “solely” was ambiguous, again asserting through questions that it might have some time limit. The witness responded that the word meant that the tractor would not be covered if it were “ever” used other than to service the insured location. That testimony is supported by common dictionary authority. Webster’s Third New International Dictionary 2168 (1968).

Just as the witness knew what “solely” meant, we have no difficulty with the word. There was no confusion whatever demonstrated at the trial with respect to it or to any other term in the policy. To be ambiguous, a term must be susceptible to more than one reasonable construction. As was stated in an opinion authored by Justice Frank Holt in Southern Farm Bur. Cas. Inc. Co. v. Williams, 260 Ark. 659, 543 S.W.2d 467 (1976):

It is unnecessary to resort to rules of construction in order to ascertain the meaning of an insurance policy when no ambiguity exists. McKinnon, Admx. v. Southern Farm Bureau Casualty Ins. Co., 232 Ark. 282, 335 S.W.2d 709 (1960). The terms of an insurance contract are not to be rewritten under the rule of strict construction against the company issuing it so as to bind the insurer to a risk which is plainly excluded and for which it was not paid.

We agree the giving of the instruction may have suggested ambiguity existed in other terms of the policy, such as “business” or “insured location.” No such ambiguity was suggested or shown. The instruction, while it was a correct statement of the law, was prejudicial to State Farm’s case, and it requires reversal for a new trial. A final allegation of error is addressed for guidance in the event the issue arises upon retrial.

3. Parol evidence

State Farm moved in limine to prevent testimony that its agent had assured Mr. Midgett that the tractor was covered. The Trial Court granted the motion but then held he would allow Mr. Midgett to testify as to his “impressions” which he formed after a conversation with the agent. The testimony ultimately allowed during direct examination of Mr. Midgett by his counsel was:

Q Okay. And when you bought this tractor, did you go see Meredith [the State Farm agent]?
A Yes.
Q And what was your reason for going there?
A To insure my tractor.
Q Now did you buy any new insurance?
A No.
Q When you left Mr. Meredith’s office — now don’t tell anything that he told you — but what was your impression when you left there to go buy insurance?
[Objection renewed]
Q You can tell the jury what your impression was when you left there that day as far as insurance on that tractor.
A I believed it was covered. It was covered; it was insured.
Q Under what policy?
A My homeowner’s.

While such testimony could have come dangerously close to violating the parol evidence rule, it did not do so. The only testimony was that the visit with the agent left Mr. Midgett with the impression that the tractor was “covered” or “insured.” Indeed it was covered and insured in the circumstances described by the policy. The question, however, was whether those circumstances existed. We find nothing in the testimony to indicate any statement made by the agent to the effect that the tractor was covered in any manner other than as provided by the terms of the policy.

Reversed and remanded.


author: Tom Glaze, Justice. Andree Layton Roaf, Associate Justice,

text:
    Frank DALEY v. CITY OF LITTLE ROCK and Tom Dalton as Chairman of the Board of Trustees of the Little Rock Fireman’s Relief & Pension Fund and the Members of that Board
    94-216
    892 S.W.2d 254
    Supreme Court of Arkansas
    Opinion delivered February 13, 1995
    [Rehearing denied March 13, 1995.]

      R. David Lewis, for appellant.

      Thomas M. Carpenter, City Attorney and Melinda S. Raley, Deputy City Attorney, for appellees.
   Tom Glaze, Justice.

Appellant Frank Daley appeals the trial court’s order denying disability benefits under the Firemen’s Relief and Pension Fund, because Daley had been terminated for cause and was not a member of the Fund when he applied for benefits. Daley argues his right to disability benefits vested at the time he was injured, not when he became permanently disabled or applied for benefits. In light of controlling statutory language at issue, we must affirm the trial court’s decision.

The evidence shows that Daley had been employed as a fire fighter by Little Rock for fourteen years. On December 21, 1983 and January 24, 1984, Daley had separate on-the-job injuries. After being terminated for cause on September 1, 1987, Daley litigated or attempted to litigate the reasons for his termination in both federal and state courts. See Daley v. Webb, 885 F.2d 486 (8th Cir. 1989); Daley v. City of Little Rock, 36 Ark. App. 80, 818 S.W.2d 259 (1991).

Until his September 1, 1987 termination, Daley had been a member of the Little Rock Firemen’s Relief and Pension Fund, which is administered by the Fund’s Board of Trustees. From the time of his on-the-job injuries and through the time of his termination, Daley never applied for a disability pension. Instead, on March 10, 1988, he wrote to the Fund’s Board, requesting the withdrawal of his prior contributions to the pension fund. On March 15, the Board responded by mailing Daley a check in the amount of $10,542.77. Daley did not cash this check, and subsequently destroyed it.

On March 22, 1988, Daley wrote two letters to the Board: one withdrawing his request for return of his contributions, and the other requesting a disability pension. On June 30, 1989, the Board notified Daley that he was not eligible for disability benefits. Daley did not appeal that decision.

Over three years later on August 19, 1992, Daley reapplied to the Board for a disability pension. On September 18, the Board again refused to consider Daley’s application because Daley was no longer a member of the Fund. On October 6, Daley filed a complaint in circuit court seeking payment of benefits from the Fund. Based on the pleadings and supporting affidavits, the trial court granted the city’s summary judgment motion, dismissed Daley’s complaint, and ordered the Board to mail a cashier’s check payable to Daley in the amount of his contributions. The trial court held that Ark. Code Ann. § 24-11-819(a)(1) (Repl. 1992) limits fire fighter disability pensions to members of the Fund, that Daley’s termination for cause ended his membership in the Fund, and that Daley was not a member at the time he applied for benefits under the Fund. It is this order from which Daley brings this appeal.

For reversal, Daley contends there is no statutory provision which says that discharge either does or does not terminate an employee’s right to a disability pension. He points out that only one statute addresses grounds for forfeiture of Fund benefits, and that statute limits the grounds to conviction of a felony, habitual drunkenness, and failure to report for an examination. See Ark. Code Ann. § 24-ll-821(a) (Repl. 1992). Daley points out he was not discharged for any of these reasons, and cites the doctrine of expressio unius est exclusion alterius (the expression of one thing is the exclusion of another). This argument is without merit, as we more fully discuss below. In further support of his quest for benefits, Daley also cites cases from other states. However, we generally find those cases inapposite because they involve pension laws employing different statutory language and prove unhelpful when construing our own Fund provisions.

Daley further claims that, because his right to a pension vested at the time he was injured, the time when he applied for benefits is irrelevant. Daley cites no Arkansas authority to support this argument. Additionally, he claims the attempt by the Board to return his contribution was without effect because he never cashed the check. And finally, Daley argues the denial of benefits in 1988 was of no effect because there was no evidence at that time that he was either permanently or totally disabled, and any appeal would have been unsuccessful. Daley avers that evidence exists now.

While Daley offers numerous arguments as described above, the issue of whether he is entitled to benefits under the Fund is purely statutory. Hughes v. Firemen’s Relief & Pension Fund, 231 Ark. 877, 333 S.W.2d 716 (1960). The statutes governing the administration and disbursement of the Firemen’s Relief and Pension Funds are found at Ark. Code Ann. §§ 24-11-801 — 830 (Repl. 1992 and Supp. 1993). This Fund’s purpose is to pay fire fighters’ retirement salaries and pensions, and pensions to the widows and minor children of deceased fire fighters and the widows and minor children of deceased retired fire fighters. § 24-1 l-812(a)(l). Further, a fire fighter may receive benefits under the Fund either pursuant to § 24-11-818 for voluntary retirement following twenty years of service, or pursuant to § 24-11-819 for retirement due to disability. Because Daley’s right to voluntary retirement benefits had not vested, his only avenue for receiving benefits under the Fund must be based on disability. We now turn to those statutes governing receipt of benefits due to disability.

Section 24-1 l-816(a)(l) provides that in order to become a member of the Fund, an individual must be a fire fighter employed in the fire department of any city or town in this state and file a statement indicating a desire that the fireman and his or her beneficiaries participate in the Fund. The remainder of § 24-11-816(a) provides for either payroll deduction or payment by fire fighters directly into the fund, and for contribution by the municipalities or fire protection districts. Thus, the threshold condition for membership in the Fund is employment as a fire fighter, and it is uncontested that, at one time, Daley was a member of the Fund.

Section 24-ll-816(b)(l) provides the following:

In the event a former member again becomes an employee of the same fire department where previously employed, the fire fighter shall again become a member of the system, and the credited service forfeited by him shall be restored to his credit if he returns to the fund the amount refunded to him plus interest from the date of withdrawal to the date of repayment.

(Emphasis added). The foregoing subsection implies that membership is lost, or at the least, is abated by becoming unemployed as a fire fighter. And § 24-ll-816(d)(2) provides in part as follows:

In the event of the resignation or discharge from the fire department of any member, all moneys deducted from the salary of the person, or voluntarily paid by the person, shall immediately be returned to him without interest[.]

(Emphasis added). The language of § 24-11-816 is clear in raising the implication that resignation or discharge as a fire fighter terminates membership in the Fund.

Next, we turn to § 24-11-819 which provides for the retirement of “[a]ny firefighter who becomes totally and permanently physically or mentally incapacitated for any suitable duty as an employee” and for the payment of benefits under the fund upon meeting specific conditions, for as long as the disability continues preventing return to active service. Additionally, the statute provides for suspension of benefits if the retirant refuses to comply with certain requirements. Under § 24-11-819, only a “fire fighter” is eligible for disability retirement with payment of benefits from the Fund. At the time of his re-application to the Board, Daley was not a fire fighter.

Our review of § 24-11-821 is also critical to our analysis of the Fund law and what affects or terminates benefits under that law. Subsection (a) of § 24-11-821 provides that once receipt of benefits begins, those benefits “shall immediately cease” to the individual receiving them when that person is convicted of any felony, becomes a habitual drunkard, or fails to report for medical examination as required. Because Daley never received any benefits under the Fund, § 24-ll-821(a) does not apply to him. Consequently, Daley’s argument based on expressio unius est exclusion alterius must fail.

The remaining provisions of § 24-11-821 are especially illustrative in considering whether Daley is entitled to benefits and provide in relevant part as follows:

(b) In the event the chief or any member of the fire department shall be removed or discharged without just cause, the removal or discharge shall not in any way affect the right of the person to the benefits of this act. . . .
(c) In the event it shall be determined on appeal that the removal was without just cause, then the person so removed shall be reinstated by the board and shall be entitled to all the rights under the provisions of this act.

(Emphasis added). These subsections provide that upon removal or discharge of a fire fighter, benefits under the Fund shall continue through the appeal procedure until a finding of removal or discharge without just cause is made, and the fire fighter is reinstated. By the same token, these provisions suggest benefits will be discontinued if a determination had been made that the fire fighter had been discharged for cause.

Daley contends there was never any proper determination that he was discharged for cause. This argument is disingenuous because after Daley was discharged, he simply failed to timely complete an appeal or challenge of that decision. The doctrine of res judicata prevents Daley from now claiming a right to benefits. See Ark. Dept, of Human Services v. Ark. Child Care Consultants, Inc., 318 Ark. 821, 889 S.W.2d 24 (1994). Of equal significance, the trial court held that the federal court determined in Daley, 885 F.2d 486, that Daley had been discharged for cause and our court of appeals has held that that federal decision is res judicata as to questions arising from the civil service commission’s decisions in Daley’s case. Daley, 36 Ark. App. 80, 84, 818 S.W.2d 259, 261.

Finally, we note Daley cites § 24-ll-816(b)(3) which provides that “[a]ny employee who has become a member of the Arkansas Local Police and Fire Retirement System shall remain a member of that system.” Statutes governing this system are found at §§ 24-10-101 — 616 (Repl. 1992 and Supp. 1993). Because there is no issue as to Daley’s membership in that system present in this case, citation of this subsection is irrelevant.

This court has held that, when the language of a statute is plain and unambiguous, the language is given its plain and ordinary meaning. Omega Tube & Conduit Corp. v. Maples, 312 Ark. 489, 850 S.W.2d 317 (1993). Here, our careful review of the statutes governing the administration and disbursement of disability benefits under the Fund leads us to the holding that those statutory provisions require a fire fighter to be employed and to be a member of the Fund at the time he applies for benefits.

For the reasons discussed, affirmed.

Roaf, L, dissents.

Andree Layton Roaf, Associate Justice,

dissenting. Under the applicable statute, § 24-1 l-819(a)(l), eligibility for a disability pension vests at the time of the employee’s injury and is not affected by his subsequent employment status at the time of his application for those benefits.

That statute provides:

Any fire fighter who becomes totally and permanently physically or mentally incapacitated for any suitable duty as an employee, as a result of personal injury or disease may be retired by the board upon written application filed by or on behalf of the member. . . .

The majority has relied on rules of statutory construction to find the legislative intent. I find those rules of limited use with this act as they can support an interpretation either way, and will consequently tell us little of the legislative intent. Therefore, it would be instructive to look at the underlying policies, and I think there is guidance in this area from other jurisdictions.

While the majority dispenses with any consideration of these cases on the basis of differing statutory language, that distinction is not dispositive. While the statutory language is not identical to ours, the differences are not critical or even relevant to the decisions in those cases. What is significant in these cases are the underlying policies.

The majority of cases I found on this issue held the right to disability benefits vested at the time of the injury, and membership or employment was not required at the time of a subsequent application for benefits. See Miller v. City of Wilmington, 285 A.2d 443(1971 Del.); Newlun v. Dept of Retirement Systems, 770 P.2d 1071(1989 Wash) and State v. Funkhauser, 325 P.2d 297(1958 Wash). These cases looked at statutes very similar to ours and found that vesting of disability rights occurs at the time of the injury and not at the time of application for those benefits. The term “member” was used in relevant provisions, but the courts either found that term was not controlling, or simply ignored it. These cases relied instead on policy.

The considerations underlying eligibility in these situations are persuasive and are best stated in Miller v. City of Wilmington:

A primary purpose of the statute is to provide compensation to police officers for permanent disability which they receive in the course of their official duties. The right to a pension does not, therefore, depend on the applicant’s status when applying, but rather, on fulfillment of the statutory requirements of eligibility. Since defendants concede that plaintiff was injured in the performance of his duties as a policeman and that his injuries have resulted in permanent, partial disability, plaintiff, absent a waiver of his rights was entitled upon application therefor, to receive a police disability pension.
Defendants contend however, that plaintiff has waived his right to a pension since he voluntarily resigned from the police force; they argue that any reservation of rights would have to be expressly made. Defendant's argument fails to consider the liberal rules of construction established by the courts of this state in construing pension statutes. Because of the remedial purpose of such statutes, because of the fact that they authorize pensions to prospective policemen as an inducement to their employment and because the pensions are financed by contributions from the proposed pensioners themselves, a forfeiture or waiver of pension rights should be found only where clearly intended by the parties.

The foregoing is not only good policy, it is in keeping with our recognition of the liberal construction of pension statutes. See Scott v. Greer, 229 Ark. 1043, 320 S.W.2d 262 (1959); Looper v. Gordon, 201 Ark. 841, 147 S.W.2d 24 (1941). I would reverse.

       The trial court stated in its December 1,1993 judgment that Daley was discharged for “consistently poor work, a poor disciplinary record, and for an inability and unwillingness to interact positively with other fire department personnel.” See also Daley v. Webb, 885 F.2d 486 (8th Cir. 1989).

       Daley does cite the case of Bd. of Trustees v. Starasinich, 128 Colo. 556, 264 P.2d 1033 (1954), but there, Colorado’s pension statute provided coverage for policemen who have been “members in good standing ... at the time of death or injury.”

       For example, the application of the rule of construction that the express mention of one thing can be construed to mean the exclusion of another (“expressio unius est exclusio alterius”) Gazaway v. Greene County Equal.Bd., 314 Ark. 569, 864 S.W.2d 233 (1993), can lead to two different results depending on what the rule is applied to in this act. So, there are certain contingencies listed that allow a member to remain eligible for the fund, e.g. 24-11-816(b)(1), § 24-11-817, 24-ll-820(e), § 24-ll-827(b) but there are other sections that list certain contingencies where eligibility ceases e.g.: § 24-11-816(c), § 24-11-819(a)(5), 24-ll-820(e), § 24-ll-821(a).
      In neither of those groups is appellant’s contingency mentioned. Therefore, depending on which of these two groups the “expressio unius” rule is applied to, the result is different.
      There is the same problem of elusiveness in the majority’s use of rules of construction. It points to § 24-11-819 and the language, “any fire fighter who becomes [disabled] as a result of personal injury . . . may be retired by the board.” The majority concludes from that language that because appellant was not a fire fighter at the time he filed for disability, he is not eligible. However, an equally strong argument can be made for the opposite result. It could be argued the legislature meant to include parties in appellant’s situation because the term “any fire fighter” was chosen instead of the term “member” or “employee” as used in other provisions. The legislature used the term “any fire fighter” to distinguish that in cases of disability, the right to benefits vests at the time of the injury. If the legislature had intended otherwise, it would have simply used the language, “any employee” or “any member.”