text:
    James E. GARRETT, Social Security No. [ XXX-XX-XXXX ] v. Dale CLINE, Director of Labor
    74-312
    520 S.W. 2d 281
    Opinion delivered March 17, 1975

      Shaw & Ledbetter, for’appellant.

      Herrn Northcutt, for appellee.
   J. Fred Jones, Justice.

This is an appeal by James E. Garrett from a circuit court judgment sustaining a decision of the Arkansas Employment Security Division Board of Review, which denied appellant Garrett’s claim for benefits under the Arkansas Employment Security Act [Ark. Stat. Ann. § 81-1101 et seq. (Supp. 1973)].

The facts are not in dispute in this case and only a question of law is involved. The facts are these: Mr. Garrett sustained an industrial injury on August 17, 1971, while in the employment of Delrod Enterprises. The injury was compen-sable under the Arkansas Workmen’s Compensation Law and he was paid workmen’s compensation benefits during the course of his temporary disability extending from the date of his injury on August 17, 1971, through June 7, 1973, when he was released from further medical treatment. On June 19, 1973, Mr. Garrett was awarded some permanent partial disability under the Workmen’s Compensation Law as a result of his injury.

The evidence indicates that in June, 1973, Mr. Garrett notified his former employer that he had been released by the doctors as able to return to his regular employment and that he was available and physically able to return and perform the work he had previously done. When Mr. Garrett was not put back to work by his former employer, he filed the claim here involved for unemployment benefits and the claim was denied upon the basis that during his base period, April 1, 1972, through March 31, 1973, he received no wages and performed no personal services within the meaning of the Arkanaas Employment Security Act. The circuit court affirmed and on his appeal to this court Mr. Garrett has designated the point he relies on for reversal as follows:

“The trial court was in error in denying claims for benefits under the Arkansas Employment Security Act to an individual who left his last employment because of injury and disability.”

The question of law involved is broader than the mere question of disqualification from receiving benefits under the Act. The question involved in this case is whether Mr. Garrett was eligible for benefits under the Act and, if so, whether he was disqualified from receiving benefits under the Act. Apparently the decision of both the Appeals Referee and the Board of Review was based on the proposition that during the required base period from April 1, 1972, through March 31, 1973, Mr. Garrett received no wages since he performed no personal services and he was thus ineligible for benefits under § 2 (n) of the Employment Security Act, which defines wages as “All remuneration paid for personal services.”

It was apparently Mr. Garrett’s contention before the Referee and Appeals Board, that the workmen’s compensation benefits he received during the period of his disability constituted, and should be considered as, “wages” in so far as wages apply to the required base period and, that Mr. Garrett was entitled to benefits under § 81-1106 (a) which provides that no worker shall be disqualified for benefits who was required to leave his work because of illness, injury or disability.

Mr. Garrett correctly points out in his brief that in construing a statute, every effort must be made to give effect to the legislative purpose in enacting the statute and that strict and literal meaning of any section of a statute ought not to prevail where it is opposed to the intention of the Legislature; that the Arkansas Employment Security Act is remedial in nature and must be liberally construed in order to accomplish its beneficent purpose and, he argues that in accomplishing the legislative purpose in the cases here involved, the judgment of the circuit court should be reversed. Mr. Garrett then complains that the trial court, in denying benefits, applied a very strict construction to the statutory definition of wages (§ 2 [n] of the Act) and construed the term to mean “all remuneration paid for personal services.” He argues that this interpretation is not only against the express legislative intent to provide compensation to individuals who are involuntarily unemployed, but is in direct contravention of § 5 (a) of the Act, Ark. Stat. Ann. § 81-1106 (a) (Supp. 1973), which provides that:

“. . . no individual shall be disqualified ... if after making reasonable effort to preserve his job rights, he left his last work because of illness, injury or disability. ” (Appellant’s emphasis).

He argues that even under strict construction of the statute an ambiguity would still be apparent because the legislative intent is clearly set forth in the Act to be “ . . . for the benefit of persons unemployed through no fault of their own.” Citing Ark. Stat. Ann. § 81-1101 (Repl. 1960). The appellant then argues that the express legislative intent when coupled with § 5 (a) of the Act clearly shows that no individual could be more entitled to benefits than the appellant — involuntarily unemployed because of severe injuries he sustained while on the job.

The appellant then points out what he considers to be discriminatory and inequitable results permissible under the statute as interpreted by the trial court and argues that a claimant who suffers injuries in the course of his employment which render him totally disabled for a period of only nine months, could qualify for unemployment benefits; whereas, a claimant who suffered a more severe injury and becomes totally disabled for a period of 22 months,, would not be eligible for unemployment compensation because he received no “wages” during his “base period.”

We are not unsympathetic to the appellant’s view as to this apparent unequitable result and we agree that legislative intent should be considered in statutory construction where the legislative intent is important to the decision and is unclear. We are of the opinion, however, that the appellant may have confused his eligibility under the Act with his disqualifications to receive benefits, but we are of the opinion that the Legislature did not share that confusion. As to liberal interpretation to accomplish the legislative intent, in 76 Am. Jur. 2d, § 6, at p. 880, is found the following language:

“[I]n the liberal construction to be accorded an unemployment insurance statute so as to afford all the relief that its language indicates the legislature intended to grant, the interpretation should not exceed the limits of the statutory intent. Similarly, a court is not at liberty to read into the statute provisions which the legislature did not see fit to incorporate, nor may it enlarge the scope of its provisions by an unwarranted interpretation of the language used.”

In 76 Am. Jur. 2d, § 32, at p. 916, is found the following:

“The purpose of the eligibility and disqualification provisions of an unemployment compensation statute is to protect the state unemployment compensation fund against claims of individuals who would prefer benefits to jobs. The eligibility and disqualification provisions, being in pari materia, are to be construed together. Some acts provide that no employee is entitled to benefits unless he is suffering total unemployment as defined therein, and unless wages amounting to a specified sum have been paid to him within his base year, and unless he has registered as unemployed and reported for work as required by the act, is not customarily ‘self-employed, ’ and has not been discharged for certain specified reasons. With respect to the issue of whether an individual has earned sufficient wages in a given period to qualify for unemployment compensation benefits, it has been held that wages actually paid, rather than wages earned, within a statutory base period control eligibility for unemployment benefits.”

Ark. Stat. Ann. § 81-1105 (Repl. 1960 and Supp. 1973), as it applies to the question here involved, provides as follows:

“An insured worker shall be eligible to receive benefits with respect to any week only if the Commissioner finds that— * * *
(e) He has during his base period been paid wages for insured work equal to not less than thirty [30] times his weekly benefit amount and has wages for insured work in at least two [2] quarters of his base period. ”

Ark. Stat. Ann. § 81-1103 (Supp. 1973) provides as follows:

“ * * *
(a) On and after July 1, 1972, ‘Base Period’ means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of the benefit year. . . .
(c) On and after July 1, 1972 ‘benefit year’ with respect to any individual means the twelve (12) consecutive month period beginning the first day of the calendar quarter in which he first files a valid claim for benefits in accordance with Arkansas Statutes. ...”

Ark. Stat. Ann. § 81-1104 (Supp. 1973) provides as follows:

“(b) For all benefit years beginning on and after July 1, 1971, an insured worker’s weekly benefit amount shall be an amount equal to one-twenty-sixth [1/26] of his total wages for insured wor paid during that quarter of his base period in which such wages were highest.
No weekly benefit amount shall be less than $15.00.
No maximum weekly benefit amount shall be greater than: Sixty per cent [60%] of the State average weekly wage for insured employment for the calendar year 1970, effective for benefit years beginning July 1, 1971 through June 30, 1972. Sixty percent [60%] of the State average weekly wage for insured employment for the calendar year 1970, effective for benefit years beginning July 1, 1972 through June 30, 1973. Sixty-six and two-thirds per cent [66 2/3] of the State average weekly wage for insured employment for the previous calendar year for benefit years beginning July 1, 1973 and on each July 1 thereafter.
Weekly benefit amounts which are not in even multiples of one dollar [$1.00] shall be computed to the next higher multiple of one dollar [$1.00].
On the first day of June of each year the Commissioner shall determine the average weekly wage of the preceding calendar year in the following manner:
(1) The sum of the total monthly employment reported for the calendar year be divided by twelve [12] to determine the average monthly employment.
(2) The sum of the total wages reported for the previous calendar year shall be divided by the average monthly employment to determine the average annual wage.
(3) The average annual wage shall be divided by 52 to determine the average weekly wage.
(c) For all claims filed on and after July 1, 1971, any insured worker who is unemployed in any week as defined in Section 2 (m) [§ 81-1103 (m)] and who meets the eligibility requirements of Section 4 [§ 81-1105] shall be paid with respect to such week an amount equal to his weekly benefit amount less that part of the remuneration (if any) payable to him with respect to such week which is in excess of forty (40) per cent of his weekly benefit amount. * * *” (Emphasis added).

In 81 C.J.S. § 106, p. 156, is found the following:

“In order to be eligible to receive unemployment compensation, the worker must have earned or received wages in the amount required by statute during the base period for the year in which he claims benefits. Thus there is no right to compensation for unemployment unless, within the statutory base period, remuneration to the amount stated has been earned, including only wages with respect to which contributions have been paid or áre payable.”

And again in 81 C.J.S. § 246, p. 360, is found the following:

“Under the various unemployment compensation statutes the payment of benefits during a benefit year is dependent on earnings within the base year, and an employee is not entitled to benefits if he is without qualifying wages in the applicable base year. Where claimant has qualifying wages in one base year to justify the payment of compensation in the applicable benefit year following, but he fails to file his claim in time for such benefit year, the base year in which qualifying wages have been earned may not, in the absence of statutory authorization, be used to justify an award of benefits for a subsequent benefit year. In determining to which quarter of the base year wages are to be allocated, the actual date when wages are paid pursuant to a definitely assigned pay roll period controls rather than, when such wages are earned.”

Mr. Garrett had not received wages for work performed for almost two years when he filed his claim on July 5, 1973, and his contention is predicated upon Ark. Stat. Ann. § 81-1006 (Supp. 1973) which provides as follows:

“For all claims filed on and after July 1, 1973, if so found by the Commissioner, an individual shall be disqualified for benefits.
(a) If he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall continue until, subsequent to filing his claim, he has had at least 30 days of paid work.
Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency ... or, if after making reasonable efforts to preserve his job rights, he left his last work because of his illness, injury or disability.”

Then follow other exceptions such as one spouse following the other to a new living area and a wife voluntarily leaving her employment due to pregnancy. Under succeeding subsections a claimant worker may be disqualified if he is discharged because of misconduct in connection with his work and failing to accept available suitable work when offered, etc.

Of all the exceptions made and recited in the Employment Security Act, including § 81-1105 (f) pertaining to loss of employment “by reason of a labor dispute other than a lockout . . .,” physical disability even under the Workmen’s Compensation Law when it extends over and beyond a base period, is not among the exceptions made by the Legislature, and we are unable to read such exception into the provisions of the Act.

We are of the opinion, and so hold, that Mr. Garrett was not eligible for benefits under the Act, consequently, we do not reach the question of whether he was disqualified from receiving benefits because of his extended disability.

The judgment is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Loree Cavin WILLIAMS, Widow of Ralph Hollis WILLIAMS, deceased, v. C. T. EDMONDSON, M.D. and H. W. WARD, M.D.
    74-169
    250 S.W. 2d 260
    Opinion delivered March 17, 1975

      Frierson, Walker, Snellgrove & Laser, by: David N. Laser, for Appellant.

      Smith, Williams, Friday, Eldredge & Clark and Putman, Davis & Bassett, for appellees.
   Conley Byrd, Justice.

This medical malpractice action was filed by appellant Loree Cavin Williams, on April 6, 1973, in Benton County, as executrix of the Estate of Ralph Hollis Williams on behalf of both the estate of the decedent and the widow and next of kin. It was alleged that the decedent died February 18, 1973. The complaint in so far as here pertinent with respect to appellee C. T. Edmondson alleged:

“The defendant, C. T. Edmondson, M.D., is a resident of Washington County, Arkansas and is a licensed and practicing physician specializing in the field of radiology and said physician practices among other places, in Benton County, Arkansas, on or about the 7th through the 9th days of April, 1971, at which time said defendant did read and interpret an X-ray taken of the chest of plaintiff’s decedent at the Bates Memorial Hospital, Bentonville, Arkansas as further described hereinafter. ”

The allegation with respect to appellee H. W. Ward is as follows:

“The defendant, H. W. Ward, M.D., is a licensed and practicing physician specializing in the field of radiology and practicing his profession in Benton and Washington Counties, among other places, and did at all times hereinafter mentioned, practice his specialty in taking, reading and interpreting X-rays, particularly X-rays of plaintiff’s decedent’s chest made at Bates Memorial Hospital, Bentonville, Benton County, Arkansas, on or about 31st day of March 1970, through the 1st day of April 1970.”

The complaint then alleges that Dr. Ward failed to adhere to that degree of care and skill expected and required of him in reading an X-ray of the chest of the decedent Ralph Hollis Williams made in April 1970. A like allegation was made with respect to a chest X-ray read by Dr. Edmondson on April 7, 1971.

Appellant caused summons to be issued and delivered to the sheriff of Washington County. The summons upon Dr. Ward was promptly served at his home in Washington County. The summons issued for Dr. Edmondson was returned unserved on April 11, 1973, with the notation: “Unable to serve. Subject lives in Benton County, per Deputy Colvard.” On April 19th, the sheriff’s office wrote to appellant’s counsel:

“Dear Mr. Williams:
“We are this date returning to Benton County Clerk’s office Summons in Circuit Court ref C. T. Edmondson, M.D. defendant in above mentioned case.
Dr. Edmondson does not maintain an office in Washington County. He has a residence in Benton County, 3/4 mile west of Little Wheel Grocery, and comes into Springdale on Tuesdays and Thursdays to read x-rays at the Springdale Memorial Hospital.
However, when we tried to reach him this day, we were advised by Dr. Ward that Dr. Edmondson is on vacation for two weeks.
Yours very truly,
By: /s/ Marjorie Roberts Civil Process Office
:mr P.S. The Little Wheel Grocery is on Hwy. 71, north of Springdale. ”

On April 13, 1973, appellant caused another summons to be issued for Dr. Edmondson directed to the sheriff of Benton County which was served on April 16th.

On July 2, 1973, the trial court sustained Dr. Ward’s demurrer to the complaint on the ground that the controlling statute of limitation, Ark. Stat. Ann. § 37-205 (Repl. 1962), had run during decedent’s lifetime. On the same day the trial court sustained Dr. Edmondson’s motion to quash the summons issued on April 6, 1973, to the sheriff of Washington County.

On July 31, 1973, appellant filed an amended complaint essentially repeating the allegations of the original complaint in so far as the individual acts and omissions of the doctors are concerned but added an allegation that the doctors were partners — by answers subsequently filed the latter allegation is admitted. The trial court sustained a demurrer of Dr. Edmondson to any action on behalf of the estate of the decedent but left standing the action for wrongful death on behalf of the widow and next of kin. A demurrer was sustained on behalf of Dr. Ward as to all allegations except those relating to his vicarious liability for the acts or omissions of Dr. Ed-mondson under Lord Campbell’s Act. Appellant elected to stand upon the pleadings and the trial court entered a dismissal of all actions except as to the wrongful death action by the widow and next of kin against Dr. Edmondson and Dr. Ward’s vicarious liability therefor. For reversal appellant raises the issues hereinafter discussed.

POINT I. Appellant here contends that her action filed on April 6, 1973, was properly commenced as against Dr. Ed-mondson and tolled the applicable statute of limitations, Ark. Stat. Ann. § 37-205 (Repl. 1962). That statute provides:

“Hereafter all actions of contract or tort for malpractice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanitoria, shall be commenced within two (2) years after the cause of action accrues. The date of the accrual of the cause of action shall be date of the wrongful act complained of, and no other time.”

Ark. Stat. Ann. § 27-301 (Repl. 1962), with reference to commencement of actions provides:

“A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to he issued thereon, and fdaced in the hands of the sheriff of the proper county or counties. . . .” [Emphasis ours.]

Obviously before Dr. Edmondson can prevail on statute of limitations, he must show that Washington County was not a proper county for the service of the summons. In this connection Ark. Stat. Ann. § 27-330 (Repl. 1962), as to method of service provides that the method of service shall be by personally delivering a copy of the summons to the defendant or by leaving a copy of the summons at the usual place of abode of the defendant with some member of the defendant’s family over 15 years of age. Of course, where a summons is directed to a county other than the defendant’s residence, we have recognized that actual service will relate back to the date of issuance but that unless the summons is issued to the sheriff of a county where it may be served the issuance thereof does not toll the statute of limitation until it is actually served, Sims v. Miller, 151 Ark. 377, 236 S.W. 828 (1922). Furthermore, Ark. Stat. Ann. § 27-309 (Repl. 1962), provides:

“The summons shall be made returnable twenty (20) days after the issuance thereof unless otherwise ordered by the court.”

In J. H. Hamlen & Son v. Allen, 186 Ark. 1104, 57 S.W. 2d 1046 (1933), we held that a summons served after the return date thereof, was properly quashed.

However we do not agree that the action of the circuit court in quashing the original summons issued to Washington County on April 6, 1973, was proper. Dr. Ed-mondson moved to quash the summons, so the burden of proving facts supporting the motion was upon him. Nix v. Dunavant, 249 Ark. 641, 460 S.W. 2d 762 (1970). In other words, it was up to him to show that Washington County was not a proper county to which the summons could be issued in order to commence the action. The record discloses that the return day of the summons was twenty days after the date of issuance, and that Dr. Edmondson regularly came to the Springdale Memorial Hospital on Tuesdays and Thursdays to read X-rays, but when the Washington County sheriff tried to reach Dr. Edmonson there on April 19, Dr. Ward advised him that Dr. Edmondson was on a two-week vacation. There is no information in the record as to the terminal dates of the vacation. Between April 6, 1973, and April 26, 1973, Tuesdays fell on the 10th, 17th and 24th and Thursdays fell on the 12th, 19th and 26th. It was reasonable to be anticipated that Dr. Edmondson could have been served with summons on any of these dates. The return on the summons was dated April 11 but it remained in the hands of the sheriff of Washington County until he sent it to the attorneys for appellants by letter dated April 19. Since the terminal dates of the vacation were not shown, it is only reasonable to assume that the summons could have been served on Dr. Ed-mondson on the 10th, 12th or 17th, if that is important. It is also entirely possible that if the summons had not been returned prematurely, it could have been served on the 24th. The point is, there was nothing to show that it was unreasonable for appellants to believe that the summons could be served on Dr. Edmondson in Washington County between April 6 and April 26, 1973. Furthermore, the sheriff was not told that Dr. Edmondson was on vacation until April 19.

In considering the words in the statute now before us [Ark. Stat. Ann. § 27-301 (Repl. 1962)], in only a slightly different context we said that the term “proper county” (proper court?) used in the statute had been “defined to mean the county of defendant’s residence or where the defendant may be served with process.” Sims v. Miller, 151 Ark. 377, 236 S.W. 828 (1922). There we were determining the “proper county” insofar as filing the complaint in a transitory action was concerned. The General Assembly amended the statute by Act 32 of 1961. Prior thereto, and when Sims was decided, the pertinent part of the statute read: “A civil action is commenced by filing in the office of the proper court a complaint and causing summons to be issued thereon.” The amendment added at the end of this sentence the words “and placed in the hands of the sheriff of the proper county or counties.'''’ (Emphasis ours.) In choosing the words “proper county” it certainly should be presumed that the legislature knew the meaning ascribed by us to these words in considering the very statute they were amending. Brown v. Davis, 226 Ark. 843, 294 S.W. 2d 481 (1956); Lumbermen’s Mut. Cas. Co. v. Moses, 224 Ark. 67, 271 S.W. 2d 780 (1954); Terral v. Terral, 212 Ark. 221, 205 S.W. 2d 198 (1947); Texarkana Special School Dist. v. Consolidated School Dist. No. 2, 185 Ark. 213, 46 S.W. 2d 631 (1932). In addition, that body’s insertion of .the plural as an alternate clearly shows that it was cognizant of the fact that under that definition there could be more than one “proper county. ” This being so, it is clear in an action that is not transitory, but “local,” as this one is, the “proper county” is either the county of defendant’s residence or the county where he may be served with process.

In Roach v. Henry, 186 Ark. 884, 56 S.W. 2d 577 (1933), Roach had filed a motion to quash a garnishment issued in an action against him. He contended that the garnishment was void because no suit had actually been commenced at the time it was issued. He alleged that the sheriff of Chicot County (in which the action had been filed) had failed to find him in the county and had served the summons on a man who was in charge of some equipment for Roach, that the plaintiff’s attorney had subsequently caused other process, i.e., a warning order to be issued and that Roach was not a resident of Chicot County, but of the city of Memphis. The respondent stated, under the statements of the complaint and of plaintiff’s counsel, which were not denied, that Roach was engaged in levee work in Chicot County and that before and since filing of the suit, Roach had been in the county from time to time. We held that the filing of the complaint and issuing of summons constituted commencement of the suit and rejected the argument that the garnishment simultaneously issued was void because the defendant had not been served. We also rejected the argument that the subsequent issuance of a garnishment constituted abandonment of the effort to get personal service, saying that one might be a resident of a county and still evade personal service.

Although the record is rather sparse, it is clear that Dr. Edmondson was served with process on April 16, three days before the date of the Washington County sheriff’s letter returning the first summons. It is difficult to say whether the information given the sheriff about the vacation was untrue, or the vacation had either ended or not commenced on April 16. In any event, there was an appropriate basis for appellants to believe, in good faith, that Dr. Edmondson could have been served in Washington County within 20 days of the issuance of the first summons, and he probably could have, had the sheriff not first concluded that the summons should have been served in Benton County. Certainly the second summons was not an abandonment of efforts to obtain service. The acts or omissions of the sheriff to whom the writ is directed should and do have no effect in determining whether the action has been commenced. King v. Circuit Court of Conway County, 239 Ark. 653, 391 S.W. 2d 24 (1965); Fitzsimmons v. Rauch, 197 Okla. 426, 172 P. 2d 633 (1946).

In St. Louis, A. & T. Ry. Co. v. Shelton, 57 Ark. 459, 21 S.W. 876 (1893), it was held that even though the service of a summons issued upon filing of a complaint within the prescribed period of limitation was fatally defective and a second summons was issued after the expiration of the period of limitation, the action was not barred because it was commenced when the first summons was issued. This case was cited with approval in King v. Circuit Court of Conway County, supra; Bridgman v. Drilling, 218 Ark. 772, 238 S.W. 2d 645 (1951). It is the issuance of a summons and placing it in the hands of the sheriff of the proper county, not its service, that determines the time of commencement of an action. King v. Circuit Court of Conway County, supra.

The tolling of the statute by the commencement of the action is, of course, not perpetual, but conditional. The extent to which the statute is tolled seems to depend upon the good faith of the plaintiff in commencement of the action and his diligence in thereafter obtaining service of process, whether in the same county or another. Emanuel v. Richards, 426 S.W. 2d 716 (Mo. App., 1968); Korby v. Sosnowski, 339 Mich. 705, 64 N.W. 2d 683 (1954); Myers v. Warren, 275 Mass. 531, 176 N.E. 600 (1931); Comen v. Miller, 41 F. 2d 292 (M. D. Pa. 1930).

Finally appellant asserts that the amendment to the complaint alleging a partnership between Dr. Edmondson and Dr. Ward relates back to the filing of the original complaint. Of course, if it does, the complaint would be good as against Dr. Ward’s demurrer as to his vicarious liability for the acts of Dr. Edmondson on April 7, 1971.

The general rule seems to be that although made after the expiration of the period of limitations, an amendment to a complaint changing the allegation as to the capacity in which a defendant is sued is permissible, and unless a new cause of action is stated the amendment relates back to the filing of the original complaint. See Annotation 8 ALR 2d 153, § 76. We have permitted such amendments to be made as to both plaintiffs and defendants, Foster-Holcomb Investment Company v. Little Rock Publishing Company, 151 Ark. 449, 236 S.W. 597 (1922). The only authority that we have been able to find involving an amendment alleging that the parties already sued were partners is TAORMINA Corporation v. Escobedo, 254 F. 2d 171 (5th Cir. 1958). There the court permitted the amendment to relate back to the date of the filing of the original complaint as to the individual partners before the court upon the original complaint but dismissed as to any of the partners brought in after the statute of limitations had run.

The law with reference to amendment of pleadings was stated in Bridgman v. Drilling, 218 Ark. 772, 238 S.W. 2d 645 (1951), in this language:

“Our cases hold that where there is an amendment to a complaint stating a new cause of action or bringing in new parties interested in the controversy, the statute of limitations runs to the date of the amendment and operates as a bar when the statutory period of limitation has already expired. In other words, if the plaintiff amends his complaint after commencement of the suit by introducing a new cause of action, the statute continues to run until the filing of the amendment which does not relate back to the commencement of the suit. Wood v. Wood, 59 Ark. 441, 27 S.W. 641, 28 L.R.A. 157; Buck v. Davis, 64 Ark. 345, 42 S.W. 534; Love v. Couch, 181 Ark. 994, 28 S.W. 2d 1067. If, however, the amendment to the complaint does not set forth a new cause of action, but is merely an expansion or amplification of the cause of action already stated, then the amendment relates back and takes effect as of the date of the commencement of the original action. Little Rock Traction & Electric Co. v. Miller, 80 Ark. 245, 96 S.W. 993; Western Coal & Mining Co. v. Corkville, 96 Ark. 387, 131 S.W. 963.
In the case of Paris Purity Coal Co. v. Pendergrass, 193 Ark. 1031, 104 S.W. 2d 455, we approved the rule stated in 37 C.J. 1068 as follows: ‘An amendment of a declaration, petition or complaint which sets up no new cause of action or claim, and makes no new demand relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. This is in substance the language of the statute in some jurisdictions, and the rule applies, although the limitation is by contract and not by statute; and courts have been liberal in allowing amendments expressly to save a case from the statute of limitations when the cause of action is not totally changed.’ See, also, 54 C.JS., Limitations of Actions, § 279a; 34 Am. Jur., Limitation of Actions, § 260.”

While parts of the original complaint would indicate that Doctors Ward and Edmondson were intended to be sued individually, other parts of the 10 page complaint allege as follows:

“6. By way of an arrangement, either written or oral, between the defendant doctors and the Bates Memorial Hospital and/or its staff physicians, said radiologists did agree and bind themselves to furnish treatment and to conduct examinations and interpretations of X-rays of patients in said hospital (inpatient and out-patient) and did on the dates aforesaid serve as the physicians of Ralph Hollis Williams, deceased for the purpose of taking, developing, reading, studying and interpreting and reporting relative to his chest X-rays, and the said defendant doctors did hold themselves out to possess that degree of skill possessed by other radiology specialists and did, in undertaking to handle the radiological portion of decedent’s medical care, bind themselves to adhere to that degree of care and skill of a specialist in radiology similarly situated, and did agree to use their best judgment in the administration of said care and skill.
“7. (c). Both defendant doctors, Dr. Ward and Dr. Edmondson, failed to abide by recognized and established procedures, check lists and protocols relative to their handling of the radiological aspects of plaintiff’s decedent’s care, and they did fail to comply with the rules, regulations and practices as set out by Specialty Boards in the field of radiology by the Joint Commission on Accreditation of Hospitals and said Commission’s rules relative to hospital staff, and they did fail to properly and skillfully furnish to plaintiff’s decedent medical care and treatment expected and required of them and reasonably necessary to preserve and protect his health, life and chances of survival at the times heretofore mentioned, and they did further, by their failure to detect radiological evidence of plaintiff’s decedent’s true condition, cause said evidence of the cancerous condition to be concealed from plaintiff’s decedent and his treating physician so that said condition was not discovered until approximately May, 1972; at which time the disease was too widespread to arrest or eradicate.
“9. As a result of the negligence of these defendants as aforesaid, during the lifetime of plaintiff’s decedent as result of the undetected spread of disease in his body, he did suffer extreme pain, ...”

Thus as against a demurrer, we conclude that the trial court erred in ruling that the statute of limitations had run as to Dr. Ward’s vicarious liability for the acts of Dr. Edmond-son.

POINT II. Appellant here contends that since neither the acts or omissions alleged to constitute malpractice nor the injury to plaintiff’s decedent was discovered nor reasonably discoverable by plaintiff’s decedent until May 1972, the statute of limitations did not begin to run until time of discovery. We find that we so construed our statute of limitation in malpractice cases prior to Act 135 of 1935. See Burton v. Tribble, 189 Ark. 58, 70 S.W. 2d 503 (1935). Since the enactment of Acts 1935, No. 135, following Burton v. Tribble, supra, we have construed our statute as beginning to run from the date of the wrongful act irrespective of the knowledge or discovery thereof by the patient, Steel v. Gann, 197 Ark. 480, 123 S.W. 2d 520 (1939). For cases from other jurisdictions reaching the same results, see the annotation in 80 ALR 2d 368, 379.

Appellant alleges that the negligence of the doctors effectively concealed the disease from her deceased husband until other physicians discovered the disorder thereby delaying the commencement of the running of the statute of limitations until the discovery. Appellant also suggests that the negligent interpretation of X-ray films is a continuing tort sufficient to prevent the statute of limitations from beginning to run until appellees had effectively discharged their duty. We do not find sufficient allegations to support the contention that appellees concealed their tort. It is pointed out in the annotation 80 ALR 2d 368, 406 that knowledge of the wrong done on the part of the physician is a necessary prerequisite to a tolling of the statute. We so held in Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W. 2d 548 (1953).

The continuing tort theory best addresses itself to the General Assembly who has the responsibility for establishing the public policy on that issue. Needless to say the only thing alleged is that the appellees were negligent in reading the X-rays and that they were thereafter filed away. Thus by the allegations, the wrong, if any, was completed at the time of the reading.

Appellant also contends that appellees are estopped to plead the statute of limitations because of the fiduciary relationship between the doctor and the patient. Since the nature of the relationship between a physician and his patient was well known to the Legislature at the time of the enactment of the two year statute of limitations, it would appear that the acceptance of appellant’s contention would amount to an outright repeal of the statute of limitations. This we do not propose to do.

POINT III. Appellant here for the first time contends the statute of limitations applicable to malpractice actions is unconstitutional. We do not reach a constitutional issue raised for the first time on appeal. Even if we did reach the issue it would appear that we would hold contrary to appellant’s position. See Carter v. Hartenstein, 248 Ark. 1172, 455 S.W. 2d 918 (1970), where we upheld the constitutional validity of a four year statute of limitations applicable to deficiencies in the design, planning and supervision of construction of improvements to real estate.

POINT IV. Appellees suggest that the order of the trial court is not an appealable decree. In so doing they rely upon Independent Insurance Consultants Inc. v. First State Bank of Springdale, 253 Ark. 779, 489 S.W. 2d 757 (1973). We do not agree with appellees that the order is not appealable because the practical effect of the order was to dismiss all claims of the estate of the decedent from the action. In Flanagan v. Drainage Dist. No. 17, 176 Ark. 31, 2 S.W. 2d 70 (1928), we held that an order was final and appealable where a distinct and severed branch of the case is finally determined, although the suit is not ended.

In Matthews v. Travelers Indem. Ins. Co., 245 Ark. 247, 432 S.W. 2d 485 (1968), we recognized that the malpractice action asserted on behalf of the decedent was a separate cause of action from the wrongful death action asserted on behalf of the spouse and heirs.

Reversed and remanded.


author: George Rose Smith, Justice.

text:
    MID-AMERICA DEVELOPMENT CORPORATION v. ARKANSAS SAVINGS & LOAN ASSOCIATION
    74-324
    520 S.W. 2d 238
    Opinion delivered March 24, 1975

      Smith, Williams, Friday, Eldredge & Clark, by: Larry W. Burks, for appellant.

      Stubblefield & Matthews, for appellee.
   George Rose Smith, Justice.

The appellant, being indebted to the appellee upon a $1,200,000 note, payable in monthly installments, was charged a $4,402.20 penalty for the privilege of prepaying the principal balance after only six installments had come due. The appellant paid the penalty under protest and brought this action for its recovery. The circuit judge, hearing the case upon stipulated facts, found the terms of the note to be unambiguous and the penalty to be proper. For reversal the appellant contends in substance that the note is ambiguous, so that parol evidence (the tenor of which is not disclosed) should have been permitted to explain the intention of the parties.

The trial judge was right. Two provisions of the note, which was prepared upon the appellee’s printed form, are pertinent. First, the only language specifying the time of payment recites that the maker promises to pay $1,200,000, with interest at 9% per annum, as follows: “Ten Thousand Nine Hundred Twenty and no/100 Dollars on the 1st day of April, 1972; and Ten Thousand Nine Hundred Twenty and no/100 Dollars, on the first day of each succeeding month, until said indebtedness is fully paid,” with a reduction as necessary in the final payment. Each installment is to be credited first to the payment of interest upon the unpaid balance and then to the payment of principal. The second pertinent provision, which was deleted by agreement before the note was executed, originally read as follows:

In the event of prepayment by Makers of all or any part of the loan indebtedness evidenced by this note, the association may require, as a penalty, payment to it by Makers of an amount equal to not more than six months’ advance interest on that part of the aggregate amount of all prepayments made on the loan indebtedness in any year which exceeds twenty percent (20%) of the original principal amount of the loan indebtedness.

There is no ambiguity in the maturity dates of the monthly installments. When the privilege of prepayment is contemplated, the usual procedure is to make the installments payable “on or before” specified dates. No such language appears in this note. The second pertinent provision, just quoted, would have allowed prepayment, but that paragraph was stricken by agreement. After that deletion the note contained nothing even suggesting a prepayment privilege. Hence parol evidence could not possibly have explained an ambiguity, for none existed. An omission in a contract cannot be supplied by parol proof. Arkansas Trust Co. v. Bates, 187 Ark. 331, 59 S.W. 2d 1025 (1933); Bradley Gin Co. v. J.L. Means Mach. Co., 94 Ark. 130, 126 S.W. 81 (1910).

The appellant does not question the theoretical validity of the prepayment charge. It is quite evident that the appellee, after having incurred the expenses incident to making a $1,200,000 loan that was to have been repaid over a period of many years, might reasonably have found it necessary to make a prepayment charge to avoid a loss on the transaction. We have held that if an installment contract would not be usurious if paid according to its terms, the debtor’s voluntary election to prepay the debt in full does not make the transaction usurious, even though the creditor thereby receives a sum exceeding the principal and the maximum legal rate of interest. Eldred v. Hart, 87 Ark. 534, 113 S.W. 213 (1908). In the case at bar the $4,402.20 penalty amounted to less than fifteen days ’ interest at the agreed rate of 9% and, if added to the interest received by the appellee from the date of the loan, August 20, .1971, to the date of prepayment, would still not have provided the appellee with a 10% return upon its investment.

Affirmed.


text:
    Felix GREEN v. John D. TONEY et al
    74-346
    520 S.W. 2d 290
    Opinion delivered March 24, 1975

      O. M. Young and Wayne W. Owen, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   George Rose Smith, Justice.

Felix Green appeals from a verdict and judgment awarding the two appellees, John D. Toney and Block Realty Company, a $10,000 real estate broker’s commission for having procured the purchaser for a 20-acre tract of land sold by Green. Green contends primarily that he was entitled to a directed verdict, on the ground that there was no substantial evidence that the brokers’ services contributed to the ultimate sale of the property. We agree with the trial judge’s conclusion that the proof presented a jury question.

The facts are not essentially in dispute. In 1970 John B. May, the eventual purchaser of the land, was a contractor engaged in building apartments. Harold Dreyfuss, an associate or employee of Block Realty Company, had previously assisted May in finding property suitable for development. In the spring of 1970 May was in the market for an apartment-complex site. He turned to Dreyfuss for assistance.

Dreyfuss discussed the matter with Toney, another real estate broker, who was acquainted with Green and knew that Green owned a suitable 38-acre tract. On May 22, 1970, the parties signed an option agreement, pursuant to which May paid $1,000 for a six-month option to purchase 20 acres of Green’s land for $100,000. The agreement obligated Green to pay a $10,000 commission to Toney and Block upon the exercise of the option.

It was May’s practice to obtain an option upon a piece of land and then attempt to arrange financing for its purchase and development. In this instance he was unable to obtain financing within the six months. Shortly before the expiration of that period Green called May and learned that he would not be able to exercise the option.

Dreyfuss died before the expiration of the option. After that Toney continued his efforts to sell the property and found two prospective buyers. He testified that on January 7 or 8, 1972, he submitted an offer for the entire 38 acres that met all of Green’s stipulations. Green, according to Toney, declined that offer for “personal reasons.” Green (who is himself in the real estate business) testified that if he had sold the property to Toney’s prospect he would have paid a commission. Green was not asked to explain his personal reasons for rejecting the offer. Only four or five days later, on January 12, Green agreed to sell the 38-acre tract to May for $200,-000, which Green admits to have been his price all along for the whole tract. The appellees’ $10,000 commission, however, is based only upon the twenty acres covered by the option.

Green, in the trial court and again here, disclaims liability upon the twofold basis that the sale was not completed within the six-month term of the option and that the brokers’ efforts were not a factor in the final sale. As to the first aspect of the argument, May’s failure to exercise his option is not conclusive. If May had bought the property five minutes after the expiration of the option the brokers’ right to a commission could hardly be disputed, while if the purchase had been made five years later Green’s position would be equally strong. Between the extremes there is a middle ground that falls within the jury’s province.

A parallel situation involving an option agreement was considered in Cole v. Crump, 174 Mo. App. 215, 156 S.W. 769 (1913). There the broker found a prospect who agreed to a 65-day option to purchase the land at $60 an acre, but that prospect did not actually buy the property until four months after the expiration of a one-year extension of the option, and then he paid an increased price. In holding that a jury question was presented the court declared that though the broker “did not personally obtain the extension of the option, and though he was not actively participating when the deal was finally closed, and though the final conveyance was made after the option had expired as an enforceable obligation, he is nevertheless entitled to his commissions if it appears to the satisfaction of the jury that he was the procuring cause of the sale, and defendants received the benefit of his services thereabout. This is true, even though defendants subsequently consummated the transation with the purchaser under a modified agreement with him whereby the original price of $60 per acre was advanced to $65.” Another similar case, recognizing the broker’s right to recover although the sale was made after the expiration of the option to purchase, is Freeman v. Kinston Mfg. Co., 233 F. 58 (4th Cir. 1916).

As to the second phase of Green’s argument, there is substantial evidence to support the jury’s conclusion that the brokers were the procuring cause of the sale to May. It is undisputed that the brokers first brought May into the picture, as a prospective buyer. The jury may have concluded that Green’s unexplained rejection of one of the brokers’ prospects, followed by his acceptance of another within a few days, was an effort to avoid the payment of a commission. Inasmuch as the appellees claim compensation only with regard to the original 20 acres, it is immaterial that the final sale included other property. Belyeu v. Hudson, 179 Ark. 657, 17 S.W. 2d 865 (1929); Chandler v. Gaines-Ferguson Realty Co., 145 Ark. 262, 224 S.W. 484 (1920).

We do not consider our decision in Johnson v. Knowles, 169 Ark. 1089, 277 S.W. 868 (1925), to be controlling. There the broker’s prospect positively rejected the property at first and changed her mind later after she had occupied it as a tenant. Our conclusion was: “The sale in the present suit did not result from any act or course of conduct whatever of the plaintiff. ” No such unequivocal statement can be made upon the proof in the case at hand. The controlling issue was for the jury’s determination.

We find no error in the trial court’s instructions to the jury. Instruction 6 submitted the issues essentially as we have discussed them; there was no request that there be included an explanation of the possibility that the brokers had abandoned their efforts to sell the land to May. Green also complains of the court’s refusal to give two of his proffered instructions. Both of them, however, suggested that the brokers could not recover unless May exercised his option to purchase within the six months allowed. We have already seen that such a contention is not sound.

Affirmed.

Byrd, J., not participating.


author: Lyle Brown, Justice.

text:
    The Estate of OLEN SPANN, Dec’d., Creed SPANN, Exec’tr. of The Est. of Olen SPANN, Dec’d. et al v. W. H. KENNEDY & SON, INC.
    74-288
    520 S.W. 2d 286
    Opinion delivered March 24, 1975

      Coleman, Gantt, Ramsay & Cox, for appellants.

      Bridges, Young, Matthews & Davis, for appellee.
   Lyle Brown, Justice.

Appellants here, who were defendants below, are the estate of Olen Spann, deceased; Creed Spann, Executor of the Estate of Olen Spann, deceased; Wendle Adcox, John L. Vassaur, and Joe Hickerson. The latter three are tenants of the Spann estate. The appellee here and plaintiff below is W. H. Kennedy & Son, Inc., cotton-brokers. The interpleader is Federal Compress & Warehouse Company.

The principal issue before the chancellor was whether a written contract between a cotton farmer (Olen Spann) and a cotton merchant (Kennedy) is of a personal nature so as to be terminated by death of one of the parties (Spann). The chancellor held that death did not terminate the contract and ordered the interpleader to deliver the cotton to Kennedy & Son, Inc.

Appellants here contend (1) that the court erred in finding the contract between the late Olen Spann and W. H. Kennedy & Son required Olen Spann estate to plant any cotton, and (2) erred in finding that the contract was enforceable against the tenants of the estate of Olen Spann.

The facts are largely undisputed. During his lifetime Olen Spann entered into a contract dated January 30, 1973, for the sale by Spann and the purchase by Kennedy of “all and only those bales of cotton produced and ginned from approximately 375 acres located on the farm owned by Spann”. The contract was styled “PURCHASE AGREEMENT 1973-74”. Spann died on April 20, 1973 before any cotton had been planted and his son, Creed Spann, Executor, was appointed personal representative of the estate. In due time the executor entered into a lease agreement with Adcox and Vassaur, and they, in turn, sublet a portion of the Spann lands to Joe Hickerson. The cotton was actually produced far in excess of 375 acres referred to in the contract and is now in the possession of Federal Compress & Warehouse Company, the interpleaders here.

We come now to the principal question, that is, whether the executor and his tenants are legally obligated to perform under the contract and deliver the cotton in the warehouse for the use and benefit of appellee, Kennedy & Son, Inc. It should be here stated that the executor was aware of the contract before planting time, and the lessees and their subtenant were aware of the contract before they accepted the agreement to plant and harvest the crop for the executor.

Our attention is first directed to Ark. Stat. Ann. § 62-2410 (Repl. 1971): “Unless a testator shall otherwise direct by his last will and testament, a personal representative shall have authority to continue any business in which his decedent may have been engaged at the time of his death, for a period not exceeding one month following the date of the granting of his letters, without obtaining an order of the court; and if such business be that of conducting farming operations he may so continue the same for a period of three months or until the end of the calendar year in which the death of the decedent occurred, whichever shall be longer.” The foregoing statute indicates that the probate law favors the completion of a work contract in force on the death of the testator.

In the field of the subject matter before us we find this statement in 3 Williston on Contracts, §411: “In the absence of express agreement to the contrary there will be no such requirement [of personal performance] if the' duty is of such character that performance by an agent will be substantially the same thing as performance by the obligor himself. The performance in such a case is indeed in legal contemplation rendered by the original obligor, who is still the party liable if the performance is in any respect incorrect.”

Applying the above stated general principle to the facts of this case, we cannot escape the conclusion that the contract between Spann and Kennedy is binding upon Spann’s personal representative. First, the evidence reflects that the cotton lands in Jefferson County, particularly in the area of the Spann lands, are some of the best in the mid-south. This creates a situation where there is a demand for good cotton acreage. Second, even though the testimony indicates that confidence is an important factor in the cotton-producer and cotton-merchant relationship, and that Kennedy had this confidence in Spann, the testimony also reflects that there are many other cotton producers living or having interests in the general vicinity of the Spann lands that are competent and reliable growers, including the two tenants of the Spann estate for 1973. J. W. Kennedy, President of W. H. Kennedy &. Son, Inc., testified that he had individual contracts with both defendants, Vassaur and Adcox whereby they agreed to sell and he agreed to buy their cotton for the 1973 crop year. The evidence is rather conclusive that, even though the personal representative was not a skilled cotton farmer, he had no difficulty in securing capable and reliable tenants to farm the land and fully and completely comply with the contract his father had made. There is certainly no question raised by the parties to this litigation that the tenants were not thoroughly competent. In fact, they produced more cotton than was called for in the contract with Kennedy.

Of course it is true that the identity of the producer is important to the cotton buyer at the time he enters into the contract to purchase cotton. It is without doubt important, just as it is important to know with whom one is dealing whenever any contract is entered into. It is important that the farm has good land which will produce the quality of cotton contemplated; to know that he has the equipment, or can get it, to produce the crop; that he is responsible financially and can secure adequate financing; and basically all the considerations that are relevant to any contract. But these considerations do not make it a “personal service” contract. For example, those same considerations were present in the following situations where the contracts were enforced against the estate of the deceased contracting party:

National Surety Company v. George E. Greece Lumber Company, 60 F. 2d 847 (CCA 10th, 1932) (Contract to carry on logging operation); Burch v. Bush & Co., 181 N.C. 125, 106 S.E. 489 (1921) (Contract to cut timber and manufacture it into lumber according to specifications); Cates v. Cates, 268 Ala. 6, 104 So. 2d 756 (1958) (Contract to haul milk); In Re Burke’s Estate, 198 Cal. 163, 244 P. 340 (1926); MacKay v. Clark, 5 Cal. App. 2d 44, 42 P. 2d 341 (1935) (Building contracts); Whidden v. Sunny South Packing Co., 162 So. 503 (Fla. 1935) (Planting, cultivating and harvesting citrus fruit); Calif. Packing Corp. v. Lopez, 279 P. 664 (Cal. 1929) (Asparagus cropping contract).

Further factual evidence that the contract in question was not a contract which could be performed only by Olen Spann, is the fact that the appellee, W. H. Kennedy & Son, Inc., entered into the same type contract with literally hundreds of cotton farmers in the cotton producing areas in Arkansas and Louisiana. The proof is that Kennedy purchased on forward cotton contracts approximately 92,000 acres of cotton production which would represent several hundred contracts. John Tharp, cotton merchant, with Harlow Sanders & Co., Inc., cotton merchant of Pine Bluff, testified that his firm negotiated in the neighborhood of 500 contracts of this type in 1973. Charles E. Hart, president of Hart Cotton Company, Inc., a cotton merchant of Pine Bluff, estimated that his firm was involved in some 700 contracts for the 1973 crop year. It is safe to say, therefore, that cotton merchants in Pine Bluff alone entered into literally thousands of contracts of the very same type as the Kennedy contract for the 1973 cotton crop.

Appellant next argues that if there was a contract between the Spann estate and Kennedy, it does not reach the tenants of the estate on the lands of Olen Spann. In other words it is argued that the tenants áre in no manner bound to make delivery of the cotton. The tenants Adcox, Vassaur and Hickerson, testified, and were corroborated by Creed Spann, that all of them were aware of the Spann-Kennedy contract when they leased the land. The court made specific findings in regard thereto and they are fully supported by the testimony of the named witnesses. The sum and substance of the testimony was that the tenants considered themselves bound by the contract if the estate was bound. Here is what the court said: “In other words, defendants, Adcox, Vassaur and Hickerson, entered into a lease contract with the personal representative with full knowledge of the Spann-Kennedy contract and they agreed to deliver the cotton from the lands to Kennedy if it should be determined that the Spann-Kennedy contract was valid.”

Finally, appellant makes this argument: “The second consideration upon which the court might have concluded that the estate of Olen Spann was obligated for cotton grown by its lessees on the estate lands would have to do with the theory of title to the goods contracted for. To some degree, the Uniform Commercial Code bears on this issue.”

Appellants cite Ark. Stat. Ann. § 85-2-105, 106, and 107 and conclude from those sections of the UCC “it is apparent that ‘growing crops’ are goods within the meaning of the Code and are susceptible to contracts for sale”.

Also, crops which have not been planted may be included in the definition of “future goods”. Ark. Stat. Ann. § 85-2-105 (2) [Add. 1961]; 85-2-501 [Add. 1961]; 2 Anderson, Uniform Commercial Code (2d ed.) 63, Sales, § 2-501:9, 501:10. The only effect in this case, however, would be that the contract, instead of constituting a present sale, would operate as a contract to sell at a future time. Ark. Stat. Ann. § 85-2-105 (2), 106. When a decedent has entered into a contract for sale of personal property which has not been performed, his executor may be compelled to execute a bill of sale pursuant to the terms of the contract. Contractual obligations which survive the death of the obligor are binding on his executor in his representative capacity and enforceable against the estate, and it is the duty of the executor to carry out such contracts and compliance may be enforced unless they are personal in nature and personal performance by the decedent is of the essence of the contract. 31 AM JUR 2d § 158, Executors and Administrators, § 318; 33 CJS 1168, Executors and Administrators § 189.

Even if the UCC provisions are applied, the issue remains the same, i.e., whether there was a contractual obligation enforceable against his estate. We have said there was.

Affirmed.

Harris, C.J., not participating.

Holt, J., not participating.


text:
    Eugene PFEIFER III v. E. F. DUNN et al
    74-310
    520 S.W. 2d 718
    Opinion delivered March 24, 1975

      Eichenbaum, Scott, Miller, Crockett and Darr, by: James E. Dan Jr., for appellant.

      Rose, .Vash, Williamson, Carroll & Clay, P.A. and Catlett & Henderson, for appellees.
   Lyle Brown, Justice.

The plaintiff and intervenors, E. F. Dunn and the trustees of the Kinkead estate sought and were granted a private easement for the uninterrupted use of a road crossing defendant’s property. The road then ran north across plaintiff’s property, thence north across the property of the Kinkead (trustee) estate. Appellant Eugene Pfeifer III contends the appellees’ use of the property was at all times permissive and did not ripen into an easement.

The essential facts are substantially undisputed. The setting of the farm lands to which access is involved is along the Arkansas River near the rural community of Natural Steps. The latter community is on high ground and a number of farmers cultivating the lands adjacent to the river live at Natural Steps.

There is an all-weather road running north along the river bank and serving from south to north, the Pfeifer acreage, then the Dunn acreage, then the Kinkead acreage. The road has an interesting history. A county road and bridge which for years had served the farms washed into the river. In 1963 the United States Engineers built an all-weather road along the river bank to gain access to a bank stabilization program. That road adjoins, in fact runs through the edges of, all the litigants’ properties. The government moved out in 1964. Dunn, the Kinkeads and some six other farmers on the north end of the road continued to use the road as farm access. Immediately the farmers were faced with a multitude of problems. The new road, the stabilized banks and other improvements attracted fishermen, picnickers, vandals and party groups. Serious vandalism was committed to farm equipment left in the fields overnight. To combat the undesirables, E. L. Kinkead, on the road just south of the Olive Moreland property, erected a gate which was locked. Keys were furnished all the land owners and their tenants. That was in 1964. Not many months thereafter the gate was moved approximately 100 feet north along the road and erected on the land of Olive Moreland, to which action Miss Moreland had no objection. A culvert installed by the government contractors under the road where it was crossed by Mill Bayou was inadequate and a wider one was placed and maintained by Pulaski County. The entire road has since its inception been maintained by Pulaski County with the knowledge of all affected landowners. The maintenance foreman of Pulaski County was furnished with a key to the gate.

In the spring of 1973, appellant Eugene Pfeifer III, became the successor in title to Miss Olive Moreland relative to the land upon which the gate was located. Mr. Pfeifer, on June 25, 1973, changed the lock on the gate for which appellee and others using the road possessed a key. Of course the effect of the changing of the lock was to preclude ingress and egress by parties other than Mr. Pfeifer.

On July 26, 1973, appellee E. F. Dunn instituted suit, praying that appellant Pfeifer be ordered to open and leave open the above mentioned gate and permit the appellee, his tenants and employees free and uninterrupted use of the road across the land of appellant. The trustees of thé Kinkead estate did on the same day file an intervention praying for practically the same relief as sought by appellee Dunn. At a preliminary hearing the court granted a temporary injunction enjoining Pfeifer from denying appellees the use of the road. Pfeifer was ordered to make available keys to the gate to appellees and all other persons and their agents and employees who had previously utilized the gate and roadway and ordered appellant to permit those individuals free and uninterrupted use of the roadway. On December 14, 1973, at a hearing on the merits, the court decreed that the temporary injunction should be made permanent.

In upholding the final order of the court, we repeat, in order to avoid any misunderstanding of our ruling, the court’s finding:

The temporary order of this court entered on July 31, 1973, shall be and the same hereby is made permanent and the defendant be and he hereby is ordered to make available to the plaintiff and the intervenors keys to any lock he has placed or will place on the gate at the southern boundary of the servient estate, and is further ordered to permit free and uninterrupted use of the roadway across the servient estate as has been made of said roadway in the past, by the plaintiff, intervenors, their agents, and employees, and the beneficiaries of Ewing L. Kinkead Trust No. 1, and Ewing L. Kinkead Trust No. 2.

We have inserted the finding of the court in order to make certain of no misunderstanding. In upholding the trial court we are not deciding that the public has acquired an easement across said road; therefore the substantial body of our law applying to public easements has no application as respects the case at hand.

There are several factors which, when combined, lead us to the conclusion that the court acted properly in sustaining the private easement. First, although it might be said there was an element of permissiveness in Miss Moreland’s allowing the construction of the gate near the entrance to her land, it was a common gate for a common purpose, namely, to protect against vandalism.

In the case of Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W. 2d 281 (1954), there was no consideration for the use of the passageway. Consequently, the use of the passageway originated strictly as a permissive right. We point up that distinction in Fullenwider because we think it is important to our holding. As just pointed out, it was for the common good of all the landowners to have a common gate to protect against vandalism. Also, it can be said that the new road served as a substitute for a county road which had been washed into the river. The fact that the road had been kept in good condition and the maintenance performed by county employees should have placed any doubtful property owner upon inquiry. All that has been done, including the erection of the gate, the distribution of keys, and the upkeep of the road, would serve to notify any interested person that the common property owners were recognizing a right to a common road, being a private easement.

Affirmed.


author: J. Fred Jones, Justice.

text:
    HOUSING AUTHORITY of the City of LITTLE ROCK, ARKANSAS v. ARKANSAS LOUISIANA GAS COMPANY
    74-314
    520 S.W. 2d 215
    Opinion delivered March 24, 1975

      Smith, Williams, Friday, Eldredge & Clark, by: William L. Terry, for appellant.

      Baker & Probst, P.A., by: Charles W. Baker, for appellee.
   J. Fred Jones, Justice.

This is an appeal by the Housing Authority of the City of Little Rock, Arkansas, from a chancery court decree in favor of the appellee, Arkansas Louisiana Gas Company (Arkla), in which the chancellor held that the Housing Authority is responsible for the cost in the stipulated amount of $78,986.19 incurred by the appellee in adjusting its gas lines within street rights-of-way in connection with appellant’s Neighborhood Development Program Urban Renewal Project within the City of Little Rock.

The Urban Renewal Project consists of widening, curbing and guttering several public streets in the area, and the installation of storm sewers and drainage facilities. On appeal to this court the appellant designates the following points upon which it relies for reversal:

“The trial court erred in finding that the determination of the issue as to responsibility for adjustment costs is governed by the Swaggerty Branch decision in Arkansas Louisiana Gas Co. v. City of Little Rock, et al, 256 Ark. 112, 506 S.W. 2d 555 (1974).
The trial court erred in finding that the removal of the City of Little Rock, Arkansas as a party plaintiff from these proceedings does not alter the legal issues involved.
The trial court erred in finding that there were no factual differences in this case which make the legal issue any different from those involved in the Swaggerty Branch decision.
The trial court erred in finding that Housing Authority must bear the cost of the adjustment work (agreed to by the parties as $79,986.19 [sic] plus accrued interest); that under the applicable law in the State of Arkansas, there being no specific statutes or franchise provisions governing the issue in this proceeding, the utility company must bear the expense.”

We are of the opinion that the chancellor was correct in holding that this case is controlled by our recent decision in Ark. La. Gas Co. v. City of LR, 256 Ark. 112, 506 S.W. 2d 555 (1974). That case involved the channelization of a small stream or “branch” inside the city limits of Little Rock. The project included installation of storm sewers and drainage facilities, and also the construction and pavement of streets and bridges where the streets crossed the branch. It was necessary that Arkla remove and relocate some of its gas lines within existing street rights-of-way and the crucial question was whether the Housing Authority or Arkla was to bear the cost of relocating the gas lines within the street limits. The Housing Authority in that case filed suit to require Arkla to relocate the lines without cost to the Housing Authority and the city was joined as party.plaintiff. The trial court found that the burden of cost fell on Arkla on the theory that the Housing Authority was in fact, an agent of the city. In reversing the decree in that case, we traced the legislative history of the Housing Authority and in that case we said:

“The main reason for holding as we do is that historically the housing authorities throughout the country have consistently been held to be separate and independent bodies corporate. The housing authorities acts heretofore enumerated are very extensive, a recitation of which would unduly lengthen this opinion. Summing up, the statutes demonstrate that the housing authorities are autonomous entities that have the power to act in every field related to their work independently of the cities.
* * *
From a study of the statutes, and in view of the cited authorities, we conclude that it was not the intention of the General Assembly that the urban renewal projects be carried out by the housing authority in some type of principal-agent relationship whereby the authority would be acting under the direction and control of subservient to, the wishes of the local governing body. Once the governing body of the municipality approves a proposed urban renewal project and executes a cooperation agreement, the authority is free to develop the project according to the plans and without direction from the municipality. Incidentally, the fcdoperation agreement relative to the subject (Swaggerty Branch) nowhere intimates that the project shall be carried on with the City as principal and the Housing Authority as agent.”

And, in that case, we concluded as follows:

“We hold that the redevelopment project in litigation was in actuality the project of Housing Authority; that Housing Authority was the moving force in causing the gas lines to be altered; that so much of the deposit as is necessary to reimburse Arkla for actual cost should be paid over to it; and that the costs in the trial court should be assessed against appellees.”

The appellant argues that in Ark. La. Gas Co. v. City of LR, supra, the City of Little Rock was a party plaintiff and the question involved on appeal was the principal-agent relationship between the city and the Housing Authority. The appellant seems to argue that since the city is not a party to the case at bar, and since agency is not involved, we should somehow reach a different result from our decision in Ark. La. Gas Co. v. City of LR, supra. We do not agree. It is true that the trial court in Ark. La. Gas Co. v. City of LR did find that the burden of cost fell on Arkla on the theory that the Housing Authority was an agent of the city, and on appeal we stated that in order to affirm the chancellor’s decree, it would be necessary for us to find likewise. But we did not so find. We simply found that the Housing Authority was an entirely separate entity from the city and was responsible for Arkla having to remove its gas lines and was liable to Arkla in connection therewith. Certainly we would have reached the same conclusion in Ark. La. Gas Co. v. City of LR, supra, and we can reasonably assume the chancellor would have reached the same conclusion that we did, if the city had never been made a party in that case and the principal-agent relationship question had never been raised.

In Ark. La. Gas Co. v. City of LR, supra, we, in effect, held that since there was no principal-agent relationship between the Housing Authority and the city, the Housing Authority was liable to Arkla for the necessary cost in making the required adjustments in its gas lines. The effect of the appellant’s contentions, as we understand them in the case at bar, is that since there was no principal-agent relationship between the Housing Authority and the city in this case, we should reverse our decision in Ark. La. Gas Co. v. City of LR, supra. We find no material difference in the improvements involved in the case at bar and those involved in Ark. La. Gas Co. v. City of LR, supra, and we find no reason to reverse our decision in that case.

As to the appellant’s fourth point, we adhere to our previous findings in Ark. La. Gas Co. v. City of LR, supra, that “The appellant Arkansas Louisiana Gas Company (Arkla) is a privately owned gas distribution utility; its franchise covers the city of Little Rock.”

The decree is affirmed.


text:
    Gerald HOLMES v. STATE of Arkansas
    CR 74-153
    520 S.W. 2d 715
    Opinion delivered March 24, 1975
    [Rehearing denied April 21, 1975.]

      Max Bowie and Sam Boyce, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Early on March 29, 1972, it was discovered that the Baron Camper Company building owned by Black Rock Development Corporation and located just west of Black Rock had been burglarized. Appellant, Gerald Holmes, and Ernest Kisling, were arrested that same day and on March 31, 1972, entered pleas of guilty to burglary and grand larceny. As a result of that plea appellant received a sentence of 21 years with 14 years thereof suspended. On May 15, 1974, Holmes’ conviction was vacated and set aside by the United States District Court for the Eastern District of Arkansas with the requirement that appellant be put to trial not later than the first day of the next term of the Circuit Court of Lawrence County which was June 17, 1974. On June 17, 1974, appellant was again tried and the jury found him guilty of burglary and grand larceny and fixed his punishment at 8 years for each count. The trial court after considering his pre-arrest record and the report filed by the county probation officer directed that the sentences should run consecutively. For reversal appellant raises the issues hereinafter discussed.

POINT I. The record shows that the burglary occurred on a wet rainy night. There were two sets of footprints leading from the door of the camper plant to a place where an automobile, which had different types of tread on the two front tires, had been parked. Darvin Stow, a deputy sheriff, determined that appellant and one Ernest Kisling had recently made applications and had given as their address, room 25, Skyway Courts, Pocahontas, Arkansas. Upon arriving at the Skyway Courts, Deputy Stow found an automobile with front tires matching the tracks he had previously found in the vicinity. He also saw clay mud, comparable to the area where the car had been parked, inside the car and footprints leading from the car up into room 25. After obtaining a search warrant, a search of room 25 produced the tools and equipment that had been taken in the burglary. In the search they also found a pair of wet brown shoes with mud around the soles and on the wedge of the heels and a pair of dingo boots that matched the footprints leading from the burglarized building to the parked automobile.

Of course, this evidence alone was sufficient to sustain appellant’s conviction. In addition, however, it was shown that appellant had stated to the officers that he would go before the judge and plead guilty. He also stated that he did commit the crime and was caught redhanded.

POINT II. Appellant now contends that his statement, that he was caught redhanded and would plead guilty when he went before the judge, should have been suppressed. We find no merit in this contention. The record made at the “Denno hearing” shows that he signed a waiver of rights form after being given the Miranda warnings and from the totality of the evidence given at the “Denno hearing”, we agree with the trial court that appellant’s statement was voluntary.

POINT III. We find no merit in appellant’s contention that officer Stow had no probable cause to go before the municipal judge to obtain a search warrant. The record shows that he explained to the municipal judge in affidavit form the information he found at the site of burglary and at room 25, Skyway Courts.

POINT IV. Appellant contends that the trial court erred in permitting the prosecution to call Ernest Kisling as an adverse witness and then impeach his credibility by showing prior convictions. We find no merit in this contention since appellant’s defense was an alibi and since both he and Kisl-ing had originally pled guilty, the prosecution could certainly call Kisling to show the absurdity of the alleged alibi defense.

POINT V. Appellant contends that the trial court erred in permitting witness Callahan, general manager of Baron Camper, to be recalled to the stand. The record shows that the prosecution attempted to show by witness Callahan that either Kisling or appellant had made some incriminating statements in front of Callahan on the day of the arrest. In view of Ark. Stat. Ann. § 28-710 (Repl. 1962), which permits the recall of a witness with leave of the court, and the fact that the trial court sustained objections to all the testimony offered, we can find no merit in appellant’s contention.

POINT VI. Neither do we find any merit in appellant’s contention that the trial court erred in permitting the officers to describe the similarity between the front tires on appellant’s vehicle and the tracks made near the scene of the burglary. Furthermore, we see no error in the trial court’s permitting the witness to testify that the metal filings and sawdust found in appellant’s car appeared to be similar to that found on the tools and equipment and in the plant of the Baron Camper Company.

POINT VII. Less than 30 days before the trial appellant changed his plea of not guilty to a plea of not guilty by reason of insanity and moved that he be committed to the State Hospital for a period of 30 days. This would have run appellant’s trial beyond the date set forth in the order of the Federal District Court, requiring his discharge if he was not tried by a certain date. Furthermore, after the trial, the trial court did commit appellant to the State Hospital for 30 days before sentencing him and the State Hospital found that appellant was without psychosis. Consequently, we can find no error in the trial court in refusing to commit him beforehand, but should somehow it be considered as error, then the error obviously could not be prejudicial.

POINT VIII. Since appellant received a concurrent sentence of 21 years on both charges of burglary and grand larceny when he pled guilty with 14 years thereof suspended, he now contends that the consecutive 8 years sentences assessed by the trial court amount to excessive, cruel and unusual punishment and that such sentence is not permissible under North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). The allegation that, the sentences are excessive, cruel and unusual has no merit. See Hooper & Westlin v. State, 257 Ark. 103, 514 S.W. 2d 394 (1974). Neither do we'find anything in North Carolina v. Pearce, supra, or in Chaffin v. Styachcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973), that would prevent the trial court from running the two sentences consecutively. The record shows that the trial court took into consideration a pre-sentencing report and the defendant’s arrest record. It takes two pages of the record to list appellant’s arrest record from September 23, 1960 through March 29, 1972. The probation report shows that following appellant’s original plea of guilty and prior to the district court’s order, appellant at one time escaped from prison. This alone would have been sufficient to revoke the 14 years suspended in the first trial. While at the prison he had a fight with an inmate, was disrespectful to the officers and was described by the classification officer at Cummins Prison Farm as a nuisance. After the return to the jail in Walnut Ridge, the officers had to separate him from a fight with Ernest Kisling, that he initiated, and in doing so, appellant bit one of the officers. He also invited the officer to fight with him and continually threatened them with the Federal Judge. Furthermore, the Federal District Judge in entering his order recognized that appellant might receive a longer sentence upon a retrial and in effect warned him of that risk. In light of this record the trial court obviously had other and valid reasons for imposing a consecutive sentence on appellant and consequently we cannot say that the trial court did so from a spirit of vindictiveness or to discourage meritless post-conviction appeals.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Brady WATSON v. STATE of Arkansas
    CR 75-149
    521 S.W. 2d 205
    Opinion delivered March 31, 1975
    [Rehearing denied May 5, 1975.]

      Harold L. Hall. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., and Lee A. Munson, Pros. Atty., by: John Wesley Hall Jr., Dep. Pros. Atty., for appellee.
   Carleton Harris, Chief Justice.

Brady Watson, appellant herein, along with Jethro Baker, was tried for the crime of robbery, it being alleged that appellant and Baker robbed Walter Strangways in the early morning hours of January 12, 1974, in Pulaski County, Arkansas. The jury found the defendants guilty and fixed appellant’s punishment at five years imprisonment. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that the court erred in permitting the State to ask a witness for appellant the question, “Would you shade the truth a little bit to keep someone you love out of the penitentiary?”, and it is also asserted that the court erred in denying appellant’s motion for a new trial.

Vanessa Smith testified that she went to a motel with Watson and was with him during the night of January 11 and early morning hours of January 12; that they had “made love” that night and that she was in love with Watson. The record then reflects the following testimony on cross-examination by the State’s attorney.

“Q Miss Smith, would you shade your truth a little bit to keep someone you love out of the penitentiary?
A Would I do what?
Q Would you shade the truth a little bit to keep someone you love out of the penitentiary?
MR. HAYNES:
I will object to that, Your Honor. It’s improper.
THE COURT:
Overruled. Proceed. Answer the question.
A Answer the question. Me answer? Yes.
Q You would?
A If I knew anything to say, I would.”

The court’s ruling constituted error. In Moore v. State, 256 Ark. 385, 507 S.W. 2d 711 (1974). Moore was being tried on a charge of assault with intent to kill and was asked, on cross-examination, if he “would lie to stay out of the Arkansas State Penitentiary”. Moore, in effect, replied that he would not. On appeal, though finding that no proper objection had been made, we said:

“If a proper objection had been made, it would have called the matter to the court’s attention and allowed the court the opportunity to rule upon it. Therefore, we do not reverse since a proper objection was not made to the question now challenged on appeal.”

However, we took occasion to point out that such inquiry was not within the proper scope of cross-examination, stating:

“Even though objection was not made to the question propounded in the case at bar, we take this opportunity to firmly state our view that the inquiry is not deemed within the proper scope of cross-examination. It amounted to a supposition and was argumentative. If this conjectural approach is permissible on cross-examination, then there would be no limit to speculative and argumentative inquiries of witnesses on cross-examination in every case. In view of the absence of an objection and the appellant’s anwer to the question, the asserted error was rendered harmless.”

While the question in Moore was propounded to the defendant himself, this is, of course, a distinction without a difference and it will be noted that the quoted language refers to “witnesses”. That opinion, as previously shown, was delivered on April 8, 1974, which was a month before the present case against Watson was tried, and there thus had been ample notice that this line of questioning was improper. Accordingly, under Moore, the judgment of conviction must be reversed.

Appellant’s second point is now, of course, moot, since the effect of the reversal on Point 1 is to give Watson another trial.

Because of the court’s error, set out herein, the judgment is reversed, and the cause remanded to the Pulaski County Circuit Court.

It is so ordered.


text:
    Booker T. McDONALD v. STATE of Arkansas
    CR 74-137
    520 S.W. 2d 292
    Opinion delivered March 31, 1975

      Harold L. Hall, Public Defender, by: Jewel Brown, Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a postconviction petition under Criminal Procedure Rule 1. In 1967 the appellant McDonald was charged with first degree murder in the shooting of a Little Rock police officer. McDonald, represented by three retained attorneys, entered a negotiated plea of guilty, the prosecutor having waived the death penalty. A jury, empaneled pursuant to Ark. Stat. Ann. § 43-2152 (Repl. 1964), fixed McDonald’s punishment at life imprisonment.

Almost seven years later McDonald filed the present petition, asserting that he was denied the effective assistance of counsel. At the Rule 1 hearing McDonald testified in his own behalf. The State introduced the testimony of two of McDonald’s former attorneys and of two officers who were present when McDonald made a confession of guilt soon after his arrest. After the Rule 1 hearing the trial judge made detailed findings of fact and concluded that there was no merit in the petition. This appeal is from that ruling.

McDonald’s present attorneys argue primarily that this court, in measuring the effectiveness of counsel, should adopt a standard of reasonable competence instead of the standard that we have previously approved, as in Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973): “A charge of this sort [ineffective representation] can prevail only if the acts or omissions of the attorney result in making the proceedings a farce and mockery of justice, shocking the conscience of the court, or if the representation is so patently lacking in competency or adequacy that it becomes the duty of the court to be aware of and correct it.”

There are two answers to the appellant’s contention. First, not all of the federal courts have abandoned the “mockery of justice” standard. For example, in a recent case, United States v. Hager, 505 F. 2d 737 (1974), the Court of Appeals for the Eighth Circuit explained that the mockery of justice standard “is not meant to be an impenetrable obstacle to any meaningful analysis of the facts of the particular case. ” The court then quoted with approval this language from its earlier opinion in McQueen v. Swenson, 498 F. 2d 207 (1974):

Stringent as the “mockery of justice” standard may seem, we have never intended it to be used as a shibboleth to avoid a searching evaluation of possible constitutional violations; nor has it been so used in this circuit. It was not intended that the “mockery of justice” standard be taken literally, but rather that it be employed as an embodiment of the principle that a petitioner must shoulder a heavy burden in proving unfairness.

Secondly, McDonald has not met the burden of proving ineffective representation, no matter what standard is applied. At the Rule 1 hearing McDonald did not deny having killed the officer; in fact, his testimony did not even touch upon the circumstances surrounding the homicide. McDonald merely stated that he did not really want to plead guilty, that he was persuaded by his attorneys to do so, and that they did not explain the possibility of his being convicted of murder in the second degree. It is also argued now that the defense lawyers were at fault in not interviewing every witness for the State.

The overwhelming weight of the proof is contrary to McDonald’s testimony. One of his former attorneys testified that the State’s case had been one of the strongest he had ever seen: McDonald admitted having shot the officer without warning; witnesses heard the shot and saw McDonald leaving the scene; the ballistics report was affirmative. Capital punishment was then in effect. McDonald had a criminal record. The attorneys interviewed some of the officers and had copies of the witnesses’ statements. There is no showing whatever that additional interviews would have revealed facts favorable to McDonald.

For from two to three weeks the attorneys spent most of their time working on the case — preparing for trial and seeking a waiver of the death penalty, which was all that McDonald was interested in. The prosecutor repeatedly refused to make that concession unless the police department would agree to it. According to the attorneys, McDonald was thrilled and pleased when the negotiations were finally successful. It is also significant that McDonald waited almost seven years, and until after the Supreme Court’s invalidation of existing capital punishment statutes, before expressing his dissatisfaction with his lawyers’ handling of his case. Upon the record now before us we must conclude that the trial judge’s findings are supported by the great preponderance of the proof.

Affirmed.

Jones, J., not participating.


text:
    DESOTO, INC v. Lawrence A. CROW
    74-333
    520 S.W. 2d 307
    Opinion delivered March 31, 1975

      Dobbs, Pryor <2? Hubbard, for appellant.

      Sanford and Pate, for appellee.
   Lyle Brown, Justice.

This is an appeal from an order of the trial court denying a motion to vacate a judgment against DeSoto, Inc. as garnishee and in favor of appellee Crow in the amount of $3,022.10. The essence of DeSoto’s argument is that notice was never given to DeSoto that such a judgment might be entered.

Two identical writs of garnishment were issued against DeSoto. The first writ was dated June 25, 1974 and reads as follows:

“THE STATE OF ARKANSAS TO THE SHERIFF OF PULASKI COUNTY:
“Whereas, Lawrence A. Crow on the 16th day of May, 1974, in the Circuit Court obtained a Judgment against John Pless and Johnny M. Pless for $3,022.10 debt and damages, and court costs, which Judgment remains unsatisfied; and it being represented to the Court by said plaintiff that the Garnishee, DeSoto Incorporated is indebted to said defendant or has in its hands or possession goods, chattels, moneys, credits or effects belonging to said defendant;
“NOW, THEREFORE, you are hereby commended to summon the said DeSoto, Incorporated to appear in this Court within 10 days from the date of service hereof and then and there to answer what goods, chattels, moneys, credits or effects it may have in its hands or possessions belonging to said defendant to satisfy said Judgment, and to answer such further interrogatories as may then and there be exhibited against it; and you will make due return of this writ into said court without delay.”

Another writ was issued under date of July 10, 1974. The only difference between the two writs is the date of the issue and the date of service. The writs of garnishment have two fatal defects. First, there is no notice that failure to answer could result in a judgment against garnishee. The writ merely advises garnishee to appear and answer questions propounded and to be propounded. Ark. Stat. § 29-107 (Repl. 1962) provides: “All judgments, orders, sentences, and decrees, made, rendered, or pronounced, by any of the courts of the State, against any one without notice, actual or constructive, and all proceedings had under such judgments, orders, sentences, or decrees, shall be absolutely null and void”.

The writ of garnishment served the purpose of a summons. Ark. Stat. Ann. § 27-306 (Repl. 1962) provides: “The summons shall be directed to the sheriff of the county, and command him to summon the defendant or defendants named, therein to answer the complaint filed by the plaintiff, giving his name, at the time stated therein, under the penalty of the complaint being taken for confessed, or of the defendant being proceeded against for contempt of court on his failure to do so. The summons shall be dated upon the day it is issued, and signed by the clerk”.

Under our holding in Wilson v. Overturf, 157 Ark. 385, 248 S.W. 898 (1923), the garnishee did not state a good cause of action.

In the case of Ware v. Phillips, 468 P. 2d 444 (Wash. 1970) the court said: “It is fundamental that a notice to be meaningful must apprise the party to whom it is directed that his person or property is in jeopardy.”

The second defect is that the garnishee is required by the writ to appear and answer the same within ten days. Ark. Stat. Ann. § 31-504 provides: “Such writs [of garnishment] shall be directed, served and returned in the same manner as writs of summons”.

Ark. Stat. Ann. § 27-308 provides: “In all civil actions the time fixed in the summons for the defendant to answer shall be within twenty [20] days after service when the summons is directed within the State, and thirty [30] days when it is directed outside the State”. Section 27-309 provides: “The summons shall be made returnable twenty (20) days after the issuance thereof unless otherwise ordered by the court”.

It is argued that Arkansas has a ten-day statute for the answering of garnishment. We are referred to Ark. Stat. Ann. § 31-512 [1962 Repl.]: “If any garnishee, after having been served with a writ of garnishment ten [10] days before the return day thereof, shall neglect or refuse to answer the interrogatories exhibited against him on or before the return day of such writ, the court of justice before whom such matter is pending shall enter judgment against such garnishee for the full amount specified in the plaintiff’s judgment against the original defendant, together with costs”. Ark. Stat. Ann. § 31-512 is no longer the law as it pertains to circuit courts. It is true the annotated statutes do not show an amendment, but the facts are that it was amended by implication. § § 27-308, 27-309, supra.

We are urged by appellant to declare some of the garnishment statutes unconstitutional. We decline to so hold. The effect of our rulings herein is to hold that the garnishment forms do not meet constitutional due process, and that the garnishee is entitled to twenty (20) days notice.

Reversed and Dismissed.