author: John A. Fogleman, Justice.

text:
    Carl JACKSON v. STATE of Arkansas
    5475
    460 S. W. 2d 319
    Opinion delivered December 14, 1970

      John W. Walker and Frank B. Newell, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant was convicted of first degree rape and sentenced to death. He states eight points for reversal. We find one of these of sufficient merit to require reversal.

After the jury was selected, impaneled and sworn, the prosecuting attorney made the opening statement for the State. Appellant’s attorney then stated that the defendant would like to reserve his opening statement until the closing of the State’s case. There was no objection by the State and the trial judge assented. After the prosecuting attorney rested the case for the prosecution, the court called upon the defendant to call his first witness. Defendant’s attorney then stated that he had an opening statement. The circuit judge ruled that defendant had waived his right to make an opening statement when he did not do so immediately following that of the prosecution. The trial judge relied upon the holding in McDaniels v. State, 187 Ark. 1163, 63 S. W. 2d 335, which had been called to his attention by a deputy prosecuting attorney at some time between the opening and closing of the State’s evidence in chief.

We agree with the circuit judge that the proper procedure calls for the making of defendant’s opening statement immediately following that on behalf of the prosecuting attorney, and that refusal to make his statement at that time would constitute a waiver. See Ark. Stat. Ann. §§ 43-2110-2111 (Repl. 1964); McDaniels v. State, 187 Ark. 1163, 63 S. W. 2d 335; Perryman v. State, 242 Ark. 461, 414 S. W. 2d 91. We need not dwell upon the importance of an opening statement by which a party may alert the jury for critical points to be expected to be covered in the testimony to be adduced. See Karr v. State, 227 Ark. 777, 301 S. W. 2d 442. By the same token, it seems unnecessary to elaborate upon the detriment suffered by a party deprived of his right to make such a statement. The impropriety of the procedure sought to be followed by the defendant in this case also seems apparent to us.

Even though a defendant in a criminal case may waive this right, no waiver of a fundamental right should be effective unless it is knowingly made. We do not feel that it could be said that a defendant knowingly waived his right to make his opening statement after having been assured by the trial court, without objection by the prosecution, that he could reserve the statement until after presentation of the State’s evidence in chief. Since one cannot consent that the court, during the progress of the trial, take some action, and then complain of that action, in the absence of any showing that consent had been given under some misapprehension or without attempting to withdraw the consent, a party is in no position to complain of an error he permitted the court to make without objection. Clack v. State, 213 Ark. 652, 212 S. W. 2d 20. We feel that the failure of the State to object when defendant’s request was made was at least a silent acquiescence in the procedure proposed. The failure to permit the defendant to make his belated opening statement deprived him of a fair trial and constituted prejudicial error.

There are certain other points asserted as error by appellant which may well arise upon a new trial, so we deem it necessary that we discuss them.

The point that has given us the most concern is appellant’s assertion that the trial court erred in holding that defendant’s waiver of right to counsel before appearing in a lineup when he had not been apprised that he was to be charged with a capital crime was knowledgeable and intelligent and in holding the lineup to have been constitutionally conducted. Our problem was aggravated by extremely sketchy abstracts in the briefs.

Appellant’s contention as to waiver is based principally upon his age, which was 15 or 16 years, and his alleged legal incapacity. The record reveals the following with respect to appellant’s contention:

Officer Hester of the Little Rock Police Department obtained from the victim a description of her alleged assailant. She said among other things, that he was of a slim build, about 6 feet 2 inches tall and approximately 19 years of age. As a result of the officer’s broadcast of the description, appellant was apprehended and brought to the police station only a short time after the alleged offense was reported. Detective Bob Moore was examined before the circuit judge, in chambers, before he testified before the jury. There, he testified that:

Four persons, including appellant, were brought to me at about 2:00 p.m. on the day of the arrest. I talked to appellant about the lineup at about 2:25. I advised Jackson that he was a suspect in a robbery and assault to rape; that he had the right to use a telephone and to talk to an attorney, and, if he did not have one, or couldn’t afford one, that one would be appointed for him by the court; that he had the right to have his attorney present before answering any questions, and to stop interrogation at any time; and that any statement he made could be used against him. No threats or promises were made to induce Jackson to stand in a lineup. Before starting to talk to Jackson, Detective Parkman and I also advised Jackson that we were going to conduct a lineup and that he had a right to have a lawyer there. I explained what a lineup was. Jackson agreed to stand in the lineup. I asked Jackson if he understood the rights explained to him. Jackson then read and signed a statement that the particular rights mentioned had been explained and that he agreed to stand in a lineup without an attorney. I believe that Jackson said that his age was 15 years, and I had no reason not to believe this. Jackson stated that he wanted the interrogation stopped, so no further questions were asked him. I did not advise Jackson’s parents or guardian that he had been arrested. Detective Parkman and I were wearing guns at the time. The three of us were sitting in a room 3 or 4 feet wide and 5 or 6 feet long. Jackson was advised of his rights by both of us. Either Parkman or I explained what a lineup was. Parkman and I also explained to Jackson that he did not have to submit himself to repeated lineups, that he had a right to make a request for counsel during the process or after one lineup.

Detective Parkman then testified that:

I advised appellant of his rights from the form waiver Jackson later signed. Jackson read the form and then I read the form to him before Jackson signed it. Jackson ánswered that he understood that he could have his attorney present during the lineup proceedings, when I asked if he did. Jackson also stated that he understood the rights enumerated in the form waiver he signed. When I asked if he wanted his attorney present, Jackson said he did not. Jackson gave his age as 16.

Jackson also testified in camera, substantially as follows:

I was 15 on the day I was arrested and in the eighth grade in school. I could read and write. I did not see Officer Parkman. Moore told me about my rights and then told me to sign the waiver, so I did, without reading it. I asked to use the phone but Officer Moore said I could not because I had not been charged. My understanding of my right to remain silent was “that is when they tell you to be quiet.” An “attorney” and a “lawyer” are the same thing.

Jackson showed a fair knowledge of the meaning and effect of “waiver,” but professed ignorance of the meaning of “interrogation.” He said that he had never been charged with a felony, and denied knowing or having been told what a lineup was, either before he signed the waiver or before the lineup. He stated that he did not know that he was charged with a capital offense until his preliminary hearing a few days later. He claimed that a request for a lawyer of the people conducting the lineup was refused. According to him, his request was directed to Sergeants Harris and Hale, who told him to be quiet and stand up and that if he was not picked out, he wouldn’t be going to the penitentiary anyway.

At the conclusion of the hearing, the trial judge ruled that appellant’s right to counsel was waived voluntarily, commenting that Jackson was bound to have understood what he was doing and what keeping silent meant because he kept silent, and did not make a statement. He added that the court was inclined to think that the officers were telling the truth when they said that the waiver of the presence of an attorney at the lineup was voluntary.

After this ruling Detective Moore testified in open court that a lineup was conducted and identified a photograph showing the persons in the lineup. Appellant’s objection to any statement made by the prosecuting witness with reference thereto outside appellant’s presence was sustained without any question having been asked. Thereupon, no further questions were asked upon direct examination. Upon cross-examination, appellant’s counsel endeavored to bring out testimony that the lineup was unfair because of its makeup and the method in which it was conducted.

Mrs. Mary Etters, the alleged victim, then testified. When asked if she recognized the person in the courtroom who committed the offenses against her, she pointed out appellant. She said that he told her, on the occasion of the alleged offenses, that he was 19 years old, and had graduated from high school some two, three or four years earlier. After relating the details of the crimes she said Jackson had committed, she told of the description she had given of her assailant. When asked when she next saw him, she answered that it was at the lineup at the police station. No objection was interposed to this question and answer, or to the subsequent affirmative answer to the inquiry whether she was able to pick the man out of the lineup. She identified appellant and the man she said accompanied him on the day of the offenses from the lineup photograph, without any objection by or on behalf of appellant. Upon cross-examination, appellant’s attorney went to great lengths in an effort to elicit testimony that Mrs. Etters’ lineup identification was based almost entirely upon the clothing worn by appellant on that occasion, which was not similar to that of any other person in the lineup.

No objection was ever made to the testimony of this witness pertaining to either the lineup or the courtroom identification. Subsequently, appellant called a police officer as a witness and established that appellant was wearing the same clothing in the lineup that he was wearing when arrested.

While a part of appellant’s argument on this point is directed to the basic unfairness of the lineup, as a denial of due process, this particular point is not before us, because it was not raised in the trial court. Appellant’s failure to object to testimony concerning the lineup or to the prosecuting witness’ answers relating her identification of Jackson on that occasion seems clearly to have been a tactical decision to attempt to discredit the testimony of the prosecuting witness in the eyes of the jurors by fully developing all possible infirmities in the lineup and the identification made by the witness, rather than to seek exclusion of her identification testimony. The only question actually before us relates to the waiver of the presence of counsel at the lineup.

In determining whether presence of counsel is necessary, in any event, however, the United States Supreme Court has said that any particular lineup confrontation must be scrutinized to ascertain whether the presence of counsel is necessary to preserve an accused’s basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself, and requires analysis whether substantial prejudice to the defendant’s rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice. United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967). See also, Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). The facts relating to a particular confrontation are pertinent in determining due process. Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L. Ed. 2d 1199 (1967). Inability of the defendant to reconstruct the manner and mode of lineup identification and the failure to record participants’ names were pointed out in these cases as hazards to the accused in lineup procedures. These difficulties certainly were nonexistent in this case where a photograph was made and introduced by the State and names and ages of participants disclosed. Be that as it may, it is clearly recognized in Wade that the presence of counsel is not required where there has been an intelligent waiver. The burden was upon the State, to show that waiver of appellant’s constitutional right to counsel was given voluntarily, knowingly and. intelligently and based upon his having received adequate warnings as to his rights. See Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974 (1966). This determination by the trial court depends upon the particular facts and circumstances of the case, including the background, experience and conduct of the accused. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938).

We find the evidence supporting the trial judge’s finding to be substantial. No question of technical difficulties presented itself here as to defenses available to appellant as is often the case where pleas of guilty without advice of counsel are involved. Furthermore, there does not seem to be anything with reference to the lineup procedure that was beyond Jackson’s comprehension. The trial judge’s statement about appellant’s having understood the explanation of his rights seems to have been justified. Jackson himself does not inject any substantial element of coercion in obtaining his waiver. Appellant appeared and testified before the trial judge. We must, of course, give substantial weight to that judge’s opportunity — far superior to ours where demeanor is all-important — to evaluate both the credibility of appellant and his ability to comprehend.

While there is a division of authority on the question, we have come to the conclusion that the better rule is that a minor above the age at which there is a want of criminal capacity may waive his right to counsel, and that, while age is a very important factor to be considered in determining whether his waiver is voluntarily, knowingly and intelligently given, it is only one of the important considerations. See Carpentier v. Lain- son, 248 Iowa 1275, 84 N. W. 2d 52, 71 A. L. R. 2d 1151 (1957); Moore v. Michigan, 355 U. S. 155, 78 S. Ct. 191, 2 L. Ed. 2d 167 (1957); People v. Lara, 67 Cal. 2d 365, 62 Cal. Rptr. 586, 432 . P. 2d 202 (1967), cert. denied, 392 U. S. 945, 88 S. Ct. 2303, 20 L. Ed. 2d 1407; Jones v. State, 119 Ga. App. 105, 166 S. E. 2d 617 (1969); Hayden v. State, 245 Ind. 591, 201 N. E. 2d 329 (1964), cert. denied, 384 U. S. 1013, 86 S. Ct. 1926, 16 L. Ed. 2d 1034; People v. Schwartz, 6 Mich. App. 581, 149 N. W. 2d 897 (1967); People v. Harden, 38 Ill. 2d 559, 232 N. E. 2d 725 (1968); Snyder v. Maxwell, 66 Wash. 2d 115, 401 P. 2d 349 (1965); State v. Gullings, 244 Ore. 173, 416 P. 2d 311 (1966); State v. Casey, 244 Ore. 168, 416 P. 2d 665 (1966); Klapproth v. Squier, 50 Wash. 2d 675, 314 P. 2d 430 (1957); Palacorolle v. State, 239 Md. 416, 211 A. 2d 828 (1965); In re Moses, 122 Vt. 36, 163 A. 2d 868 (1960); Commonwealth v. Burke, 176 Pa. Super. 215, 107 A. 2d 578 (1954), cert. denied, 351 U. S. 942, 76 S. Ct. 837, 100 L. Ed. 1468; Ex parte Barton, 32 Okla. Cr. 41, 239 P. 944 (1925); People v. Williams, 174 Cal. App. 2d 364, 345 P. 2d 47 (1959), cert. denied, 363 U. S. 807, 80 S. Ct. 1244, 4 L. Ed. 2d 1150; People v. Camarillo, 266 Cal. App. 2d 523, 72 Cal. Rptr. 296 (1968), cert. denied, 395 U. S. 966, 89 S. Ct. 2111, 23 L. Ed. 2d 752. We find the following language of the California Supreme Court pertaining to this rule in People v. Lara, supra, particularly appropriate here:

Defendants stress that they are members of a minority group (Mexican-American); that they have little education (ninth or tenth grade), and no money; that they are minors; and that through lack of sleep and excessive drinking each was allegedly in poor physical and mental condition at the time he was questioned by the police. Such factors have often been considered by the courts in determining the voluntariness of an ensuing confession * * *, and there is no doubt they are also relevant to the question whether a waiver of Dorado riehts at the outset of an interrogation was intelligently and understandingly made. * * * Lara further complains, however, that the police did not inform him of “the elements of the crimes charged against him,” “the possible defenses available to him,” and the fact that “he could receive the death penalty.” There is no requirement that an accused be informed of these matters while the case is still in the stage of interrogation by investigating officers. Indeed, it would usually be impossible to do so, for at that stage no crimes have yet been “charged against him”; the latter decision is subsequently made by the district attorney, after appraising the legal effect of the evidence gathered from all sources in the case.
The issue, as with all matters of waiver, is to be resolved upon the whole record. * * * Here the officers specifically asked each defendant if he understood the statement of rights just given to him, and each replied that he did. There was testimony that at the time of the questioning Lara was “very calm” and gave no indication of having consumed alcoholic beverages, and Alvarez appeared “cognizant and aware.” Each defendant, moreover, concluded his handwritten confession with a full statement of his Dorado rights.
# # *
We cannot accept the suggestion of certain commentators * * * that every minor is incompetent as a matter of law to waive his constitutional rights to remain silent and to an attorney unless the waiver is consented to by an attorney or by a parent or guardian who has himself been advised of the minor’s rights. Such adult consent is of course to be desired, and should be obtained whenever feasible. But as we will explain, whether a minor knowingly and intelligently waived these rights is a question of fact; and a mere failure of the authorities to seek the additional consent of an adult cannot be held to outweigh, in any given instance, an eviden-daily-supported finding that such a waiver was actually made.
# # #
[Wjith respect to tortious or criminal acts of minors, the law extends no blanket presumption of incapacity. Rather, while the minor’s immaturity will often result in his undergoing different methods of adjudication and treatment, it is simply one element, although an important one, to be weighed with many others in determining the issue of his liability. It is clear the Legislature intends that determination to be made on the particular facts of each case.
A similar approach has been taken by the courts in dealing with other stages of the criminal process. The most common context in which the issue had arisen is in ruling whether a minor has the capacity to make a voluntary extrajudicial confession.
# * *
This, then, is the general rule: a minor has the capacity to make a voluntary confession, even of capital offenses, without the presence or consent of counsel or other responsible adult, and the admissibility of such a confession depends not on his age alone but on a combination of that factor with such other circumstances as his intelligence, education, experience, and ability to comprehend the meaning and effect of his statement. * * * Applying the “totality of circumstances’’ test of Gallegos, such confessions have been held admissible when made by a minor of the age of fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, or twenty.
•TP TP
To sum up, we have seen that a minor, even of subnormal mentality, does not lack the capacity as a matter of law to make a voluntary confession without the presence or consent of counsel or other responsible adult, or to make a knowing and intelligent waiver of his right to counsel at trial; in either event, the issue is one of fact, to be decided on the “totality of the circumstances” of each case. We are of the opinion that the same rule governs the issue of the effectiveness of a minor’s waiver of his rights to counsel and to remain silent after the accusatory stage has been reached in a pretrial investigation. We have held a waiver valid where the accused was a “mild mental defective” with an IQ of 70 or 71, who had only reached the seventh grade in school. Cox v. State, 240 Ark. 911, 405 S. W. 2d 937. We have also held that officers are not required to contact the parents of a minor over the age of 14 years who is suspected of, or charged with, a crime. Washington v. State, 227 Ark. 225, 297 S. W. 2d 930. In the latter case objection had been made to testimony concerning admissions made by an accused minor on the ground that his parents had not been contacted. The rule we apply here on the question of the minor’s waiver of his right to counsel at the lineup is in harmony with our decisions mentioned above.

One matter that has given us considerable concern, however, is Jackson’s testimony concerning his requests for counsel to Officers Harris and Hale. These officers are not identified by him or anyone else. It is not at all clear whether they had anything to do with the lineup procedures or with the investigation of the charges. Nor do we know that they had anything to do with appellant’s arrest or custody, or for that matter with the case in any way. Presumably, they are members of the Little Rock Police Department. Neither of them testified.

There should be no doubt that one in custody should be permitted to revoke his waiver of the right to counsel at any stage of a lineup procedure just as he could during interrogation. Yet, so far as the record reflects, no such request was made of the officers conducting the lineup, or in any manner that it might reasonably have been expected to be communicated to them. If indeed, it should develop upon retrial of this case that prior to the lineup identification, appellant did, in a proper manner, request the assistance of counsel, then all evidence of the lineup identification should be excluded and upon proper and timely objection being made, the court should conduct an in camera hearing to determine whether the prosecuting witness’ in court identification is so tainted by the lineup procedure as to require its exclusion.

Arguments relating to the death penalty include the following:

The single verdict procedure for the trial of capital cases is fundamentally unfair, and by forcing petitioner to choose between presenting mitigating evidence on the punishment issue or maintaining his privilege against self-incrimination on the guilt issue, denies him rights guaranteed by the fifth and fourteenth amendments to the federal constitution.
Arkansas’ practice of allowing capital trial juries absolute discretion, to impose the death penalty, uncontrolled by standards or directions of any kind, violates the due process clause of the fourteenth amendment.

While we do not feel that there is any merit in these contentions, inasmuch as cases involving these questions are now pending before the United States Supreme Court in Crampton y. Ohio, Docket No. 204, 39 U. S. L. W. 3209, and McGautha v. California, Docket No. 203, 39 U. S. L. W. 3209 (both argued November 9, 1970), it appears to us that the decisions there will be controlling on the federal constitutional questions involved, or virtually so; therefore, it would be futile for us to undertake to pass upon these questions of first impression. Hopefully, the cases referred to will be decided before a retrial is had in this case.

Appellant also asserts that there was error in the denial of his motion to restrain the prosecuting attorney from demanding the death penalty because he con tenas that it is discriminatorily imposed on negroes in first degree rape prosecutions in Arkansas. He also contends that the Arkansas procedure requiring simultaneous submission of issues of guilt and punishment to the jury without standards to guide its discretion as to punishment not only encourages but almost renders discriminatory imposition of the death penalty. The only support offered for this argument is the testimony of the present incumbent of the prosecuting attorney’s office that he had not previously sought the death penalty during his tenure of office. We find no merit in this contention.

We find no merit in appellant’s contention that the circuit judge made statements which could have intimated to the jury his opinion as to appellant’s guilt. The only remarks called to our attention pertain to appellant’s “testing” numerous questions. The record indicates to us that the remarks of which complaint is made were made in chambers out of the hearing of the jury. No prejudice could have resulted, even if the remarks could be taken to indicate an opinion of guilt.

Appellant argues that the trial court made disparaging remarks about his attorney during voir dire examination of prospective jurors. We have held that a trial judge’s prejudicial remarks which could be construed as a reflection upon counsel’s knowledge and skill or as a suggestion of improper conduct on his part are reversible error. In McAllister v. State, 206 Ark. 998, 178 S. W. 2d 67, we said:

In the case of Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 428, 100 S. W. 2d 676, 677, Mr. Justice Butler, speaking for the Court, says: "No principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the condúct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury. By his words or conduct he may, on the one hand, support the character and weight of the testimony or may destroy it in the estimation of the jury. Because of his personal and official influence, uncalled for or impatient remarks, although not so intended by him, may give one of the parties an unfair advantage over the other.” "We are not unaware that many things occur during the trial of a case to fray and irritate the nerves of the presiding judge and that he is not immune to the natural frailties of humanity, but because of his position he must exercise the greater forbearance and patience.”
At 64 C. J., page 92, it is said: "Where counsel engaged in the trial of an action is guilty of impropriety or misconduct, a proper admonition, censure, or rebuke by the presiding judge, in the presence and hearing of the jury, is ordinarily not prejudicial, where not couched in intemperate language, although it is ordinarily preferable that any rebuke be administered in the jury’s absence. The judge is justified in using to counsel language sufficiently pointed and emphatic to put an end to objectionable conduct, and some warmth or asperity in interchanges between counsel and the court will not give ground for complaint, particularly in a hotly contested case.”
In the footnotes supporting the text the following cases are referred to: Weinberg v. Pavitt, 304 Pa. 312, 155 A. 867, where it was held that the presiding judge should not unnecessarily belittle the argument of counsel; Schafer v. Thurston Mfg. Co., 48 R. I. 244, 137 A. 2, to the effect that when counsel makes contentions which are deemed unsound, the trial court should overrule them with dignity, and should not use language holding counsel up to ridicule; Bennett v. Harris, 68 Misc. 503, 124 N. Y. S. 797, where it was held that the cause of the parties is prejudiced where the court states that an objection made by counsel is ridiculous.
Although it may be assumed that the trial judge did not intend that his remarks should in any way prejudice the rights of appellant, or influence the jury, still his choice of words was unfortunate. The words to grant your motion “would just be silly” doubtless was construed by the jury to mean that the motion itself was silly, and they could have gathered the impression that the court was intentionally belittling it, and holding counsel up to ridicule for having made it. Viewed in this light, the court’s remarks could have been construed as a reflection upon counsel’s knowledge and skill as a lawyer, and, perhaps, even as a suggestion that counsel was guilty of improper conduct. Not only this, but when counsel objected to the remarks of the court, which he unquestionably had a right to do, he was informed that the court would not “put up with any more of this foolishness.” This constituted an unmerited reprimand and prejudicial error calling for reversal.

We do not believe any disparagement of counsel was intended by the circuit judge in this case, especially in view of his remarks when appellant’s attorney was called upon for his closing argument. He then said that appellant’s appointed counsel had done an exceptionally good job. Of course, the trial judge must be scrupulously cautious about remarks to counsel which might be interpreted by any juror as derogatory, as indicated by our language above quoted.

Appellant asserts that the trial judge committed reversible error in denying his motion to quash the jury panel. The motion alleged that the jury was not comprised of and did not reflect a cross section of the population of Pulaski County. The particular grounds alleged were that there were only five black persons on the jury, that 18 of the 32 jurors listed reside in the “economically exclusive” Fifth Ward of the City of Little Rock, and that a disproportionate number of retired executive, managerial and professional persons comprised the panel. The alternate prayer of the motion was that the trial be delayed until the “new modified jury wheel method of selecting juries is instituted in Arkansas.” We assume that appellant refers to the system provided by Act 468 of 1969 [Ark. Stat. Ann. §§ 39-101 et seq. (Supp. 1969)] effective January 1, 1970. Since the obvious purpose of' this act was an endeavor to obtain more representative jury panels and to minimize thé effect of arbitrary selection standards by jury commissions, we forego any discussion about the objections to this particular panel of jurors, in view of the action we are taking. The act (39-201) requires an oath of the jury commissioners that they will select jurors from a fair cross section of the community and will not exclude or include any persons on account of race, color, religion, sex, national origin or economic status. We are confident that the circuit judges will emphasize the importance of the oath. We must assume that the commissioners appointed will abide by the oath.

For the reasons indicated, the judgment is reversed and the case remanded for a new trial.

       In this lineup, appellant wore a jacket or sweater similar to clothing that Mrs. Etters had described as being worn by her assailant. No one else in the lineup wore, or was asked to put on, a garment like this.

       See 71 A. L. R. 2d 1160 (1960).

      [3] Dorado rights, in California, are the same often referred to as Miranda rights or warnings: right to counsel, right to remain silent and admonition that an accused’s statements may be used in evidence against him. They are set out in People v. Dorado, 62 Cal. 2d 338, 42 Cal. Rptr. 169, 398 P. 2d 361 (1965).

        [4]Gallegos v. Colorado, 370 U. S. 49, 82 S. Ct. 1209, 8 L. Ed. 2d 325 (1962).

       Appellant’s reliance upon Von Moltke v. Gillies, 332 U. S. 708, 68 S. Ct. 316, 92 L. Ed. 309 (1947) as authority holding that in order for a waiver of right to counsel to be valid, it must have been given with an apprehension of the charges, the statutory offenses included within them, the range of possible punishment and possible defenses to the charges is misplaced. In the first place these factors were relevant to the views of only four members of the court. Secondly, the language pertained to waiver of counsel upon a plea of guilty. Furthermore, the cause was remanded to the trial court for an explicit determination whether petitioner there had competently, intelligently and with full understanding of the implications waived her right to counsel.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Jack LINDLE, d/b/a Lindle Shows v. A. G. SHIBLEY, Jr.
    5-5401
    460 S. W. 2d 779
    Opinion delivered December 14, 1970
    [Rehearing denied January 11, 1971.]

      Reid, Burge Prevallet and Gary L. Brewer, for appellant.

      Graham Partlow, Jr. and Bill E. Ross, for appellee
   J. Fred Jones, Justice.

This is an appeal by Jack Lindle, d/b/a Lindle Shows, from a judgment of the Circuit Court of Mississippi County, Chickasawba District, entered on a jury verdict for A. G. Shibley, Jr. in the amount of $25,000 in a suit by Shibley against Lindle for injuries sustained by Shibley while attending a carnival conducted by Lindle when the lights on the carnival grounds went out and Shibley was run into by a third party pedestrian. Lindle assigns errors under ten points relied upon as follows:

“The trial court erred in giving the instruction on res ipsa loquitur because the doctrine is inapplicable in this case.
The court erred in not directing a verdict for the appellant because there was no evidence that the failure of the lights was the proximate cause of the injury.
The trial court erred in refusing to direct a verdict for the appellant because there was no evidence of negligence.
The trial court erred in not granting a mistrial because of appellee’s attorney’s statement to the jury concerning liability insurance during voir dire examination.
The trial court erred in not giving appellant’s requested instruction on an unavoidáble accident, AMI 604.
The trial court erred in not instructing the jury that the appellant was not an insurer of the safety of the persons on his premises.
The trial court erred in instructing the jury on concurring proximate causes, AMI 502.
The trial court erred in giving that portion of the damage instruction allowing consideration of earnings to be lost in the future.
The court erred in giving that portion of the damage instruction allowing consideration of visible results of the injury.
The jury verdict was excessive.”

Having concluded that there is no substantial evidence that Lindle was negligent toward Mr. Shibley and that there is no substantial evidence that the failure of the lights was the proximate cause of Mr. Shibley’s injury, we find it unnecessary to discuss the points as specifically presented.

The facts as alleged, and as proven at the trial, appear as follows: For a number of years Lindle had provided entertainment in the form of a carnival for the Northeast Arkansas Fair held each year in Blytheville, Arkansas. The carnival portion of the fair consisted of concessions and amusements on the east and west side of a thoroughfare or midway of the carnival grounds. Mr. Lindle obtained his electrical power from the local power company and distributed it for lighting and other electrical purposes through transformers located in a truck on the carnival grounds, and the distribution of the electric power in the carnival grounds was maintained by Lindle.

About 9:00 p.m. on September 20, 1968, Mr. Shibley, accompanied by his brother-in-law, Mr. Malouf, had entered the fair grounds and was walking along on the east side of the carnival area when the lights in that area suddenly went out. Immediately after the lights went out, and before Mr. Shibley’s eyes became adjusted to the darkness, and when, according to his testimony, he could only distinguish the outline of objects; some unknown individual ran into Mr. Shibley from his right side and struck and injured his right knee. The contact was described as similar to a “football tackle.” Mr. Shibley was taken to a local hospital and later to the Campbell Clinic in Memphis, Tennessee, where it was determined that he had a bone fracture and a torn cartilage in his right knee. He underwent surgery for the correction of his condition which according to the medical evidence resulted in a 15% permanent disability to his right knee.

Mr. Shibley testified that his eyes had not adjusted to the dark at the time he was struck by some person and injured. There is nothing in the record, however, to indicate that Mr. Shibley would not have suffered the same injury in the same accident had he been totally blind to light and dark, and there is no evidence in the record that Mr. Shibley would not have sustained his injury exactly as he did if the lights in the area had not gone out.

The Oklahoma Supreme Court in Myers v. Luttrell, 373 P. 2d 22, quoting with approval from prior opinions said:

“ ‘The proximate cause of any injury must be the efficient cause which sets in motion the chain of circumstances leading to the injury; if the negligence complained of merely furnishes a condition by which the injury was possible and a subsequent independent act caused the injury, the existence of such condition is not the proximate cause of the injury.’
* * *
‘Negligence must be shown by evidence, and the evidence, to justify a finding of negligence, must show a breach of duty on the part of the defendant such that a reasonable person should have foreseen would as a natural consequence cause an injury, not necessarily would probably cause an injury in the sense of more likely to cause an injury than not, but the likelihood must be such that a reasonable person could foresee that injury would result in the ordinary course of things. A mere possibility of the injury is not sufficient, where a reasonable man would not consider injury likely to result from the act as one of its ordinary and probable results.’ ”

Under Arkansas law, negligence is the “proximate cause” of an injury only if the injury is the natural and probable consequence of the negligent act and ought to have been foreseen in the light of attending circumstances. Kisor v. Tulsa Rendering Co., 113 F. Supp. 10; Southwestern Bell Telephone Co. v. Adams, 199 Ark. 254, 133 S. W. 2d 867.

In Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S. W. 2d 117, the defendant maintained a large tank for the storage of tar and permitted some of it to escape onto a children’s playground. The plaintiff’s nine year old son got some of the tar on his feet and the plaintiff-parents were attempting to remove the tar with gasoline when a second child fired a cap-pistol creating a spark that ignited the gasoline fumes and resulted in serious burns to the nine year old child. The trial court sustained a demurrer to the complaint, and in affirming the trial court, this court said:

“To be negligent a person must be in a position to realize that his conduct involves a hazard to others. In the Hill case we described a negligent act as ‘one from which an ordinary prudent person in the actor’s position — in the same or similar circumstances — would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner.’ Later in Collier v. Citizens Coach Co., 231 Ark. 489, 330 S. W. 2d 74, we added: ‘Foreseeability is an element in the determination of whether a person is guilty of negligence and has nothing whatever to do with proximate cause.’ Moreover, when the voluntary acts of human beings intervene between the defendant’s act and the plaintiff’s injury, the problem of foreseeability is still the same: Was the third person’s conduct sufficiently foreseeable to have the effect of making the defendant’s act a negligent one? Harper & James, The Law of Torts, § 20.5; Rest., Torts, § 447.”

Measured by the above rules of law there are two questions to be answered in this case. The first question involves the negligence of Lindle toward Shibley in causing or permitting the lights to go out, and comes down specifically to whether Lindle, as an ordinary prudent person, should have foreseen such an appreciable risk of harm as occurred to Mr. Shibley if the lights should go out on the carnival grounds. As was said in Myers, supra, a mere possibility of such injury is not sufficient, where a reasonable man would not consider injury likely to result from the act as one of its ordin-nary and probable results. Paraphrasing some of the language used in Hartsock, supra; it is a common place everyday and night occurrence for electrical power to fail some-where, for one reason or another; and to hold that this defendant was under a duty to guard against the remote chance of what actually occurred in this case, would be in effect, to strike the element of foreseeable guilt from the concept of negligence in such situation, and thus impose an absolute liability on the distributors of electric energy for injuries sustained in most any type of accident occurring in the dark within the period of a power failure.

The appellee argues that obviously there were a number of inherent risks that Lindle should have foreseen if the lights failed as they did in this case. He enumerated the risks that “someone might fall or trip or even be raped or attacked.” Mr. Shibley did not fall or trip but the injury he did sustain fell into the same category as would have a rape or an attack. We are of the opinion that Mr. Lindle, as a reasonable person, would have concluded that people would slow down or at least stop running during a period of darkness caused by a power failure, instead of rushing about in the darkness and engage in all manner of criminal activity. There is no evidence in this case that the failure of the lights panicked the crowd or the individual who ran into Mr. Shibley without stopping. To hold with the appellee’s view on this point, would impose strict liability on electrical power companies for most every injury sustained by criminal act or otherwise within its power distribution area during a power failure.

The case of Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797, relied on by the appellee, involved a collision between three motor vehicles traveling in the same direction on the highway. The first vehicle stopped suddenly; the second vehicle was forced to stop suddenly and the third vehicle rammed into the rear of the second vehicle knocking it into the rear of the first vehicle and injuring the parties in the second vehicle who filed suit against the owners of the first vehicle, as well as the third vehicle. In holding that the jury was justified in finding that the defendant owner of the first vehicle was negligent toward the plaintiff-occupants of the second vehicle, this court said:

“Defendant contends, however, that this negligence was not the proximate cause of plaintiff’s injuries. If after, or as, plaintiffs’ car was brought to a stop behind defendant’s truck, a third person had . without stopping, driven another car out of a side-road into plaintiffs’ car, the defendant’s argument would be easier to sustain. If any such intervention had occurred, it would have been easy to find that it was truly an independent intervening act not aided or risked by defendant’s negligent act. Such a wholly independent intervening act could be held to be the sole proximate cause of resultant injuries.”

We are of the opinion that the facts in the case at bar fall squarely within the above intervening cause example set out in Hill rather than an intervening act the likelihood of which was definitely increased by the defendant’s act of suddenly stopping his vehicle on the highway as was the actual situation in the Hill case.

The second question presented is whether the resulting darkness from the power failure was the proximate cause of Mr. Shibley’s injury.

Returning now to Hartsock v. Forsgren, supra, we there stated:

“With respect to proximate cause the term is usually defined as a cause which, ‘in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.’ Collier v. Citizens Coach Co., supra; Ben M. Hogan & Co. v. Krug, 234 Ark. 280, 351 S. W. 2d 451.”

And again paraphrasing our language in Hartsock; testing the case by this definition, it is apparent that the proof did not present substantial evidence on which the jury verdict can stand since the failure of the lights did not lead in a natural and continuous sequence unbroken by any intervening cause to the accidental injury sustained by Mr. Shibley when someone running through the darkened area ran into him. There is simply no evidence in this case that the darkness caused by the power failure caused the unknown individual to run into Mr. Shibley.

The judgment must be reversed and the cause dismissed.

Fogleman and Byrd, JJ., concur only because they do not think that res ipsa loquitur applies at all in this case, and for that reason there was no evidence of negligence.


author: Conley Byrd, Justice.

text:
    Claude FARRAR et ux v. Mrs. Emily L. KINCHELOE
    5-5380
    460 S. W. 2d 800
    Opinion delivered December 14, 1970

      Gean, Gean & Gean, for appellants

      Don Smith and Franklin Wilder, for appellee.
   Conley Byrd, Justice.

The sole issue on this appeal is whether a savings account at the First Federal Savings & Loan Association in Fort Smith, Arkansas, was solely owned by appellee Mrs. Emily L. Kincheloe or jointly owned by Mrs. Kincheloe and her adopted daughter, appellant Inez Farrar. The trial court ruled that it was solely owned by Mrs. Kincheloe. Appellants Claude Farrar and his wife Inez rely upon Hobbs Admr. v. Collins, 234 Ark. 779, 354 S. W. 2d 551 (1962), as authority for reversing the trial court.

The record shows that Mrs. Kincheloe had no children of her own. Prior to Inez Farrar’s marriage and prior to Mrs. Kincheloe’s migration to Oregon, Inez Farrar lived with Mrs. Kincheloe. In 1958, Mrs. Kincheloe moved to Oregon where she worked as a seamstress. She saved and accumulated $15,000 which she deposited in the First Federal Savings & Loan Association of Salem, Oregon, in the name of: “Emily L. Kincheloe or Inez Farrar, not as tenants in common but with right of survivorship.” Mrs. Kincheloe, with the consent of Mrs. Farrar, instituted adoption proceedings in Oregon by which Inez Farrar became Mrs. Kincheloe’s adopted child. Whenever Mrs. Kincheloe deposited money in the savings account she would write Mrs. Farrar telling of the addition to the savings account. One of these letters dated Dec. 6, 1968, is as follows: “We (You and I) have $15,000 savings in First Federal Savings & Loan Association”. Another part of the same letter says, “We also have $7,800 in checking at the University Branch on State Street near where I live. I’m sending you checks on this bank.” In December 1968, Mrs. Kincheloe moved to Cameron, Oklahoma, (near Fort Smith), and lived in a mobile home close to Mrs. Farrar’s home. At this time Mrs. Kincheloe was 79 years of age.

Sometime around the last of March 1969, Mrs, Kincheloe suffered a lapse of memory while drinking a cup of coffee in Mrs. Farrar’s home. Because she blacked-out, Mrs. Farrar took Mrs. Kincheloe to the hospital where she remained a few days. Not long thereafter Mrs. Kincheloe accused Mrs. Farrar of looking in on her door at 2:00 in the morning.

Mrs. Kincheloe’s testimony was that she had possession of the Oregon savings certificate until May 14, 1969. She said that on May 13, 1969, she had some callers at her trailer, one of whom was a preacher, and that as a result of that visit she signed a pledge to the church. Mrs. Kincheloe designated this pledge as a $5,-000 donation. She said that the next day after she signed the pledge the appellants, together with their son and his wife, came over and wanted the paper she had signed. According to Mrs. Kincheloe, at that time appellants, without her permission, took not only the church pledge but also the savings certificate, her marriage license and purse.

On May 15, 1969, in the office of her attorney Inez Farrar signed a request for withdrawal of the money from the Oregon bank. Upon receipt of the money Mrs. Farrar deposited it in her name as trustee in the First Savings & Loan Association of Fort Smith. Thereafter, Mrs. Kincheloe employed an attorney, Ralph Robinson, who accompanied her to the offices of Mr. Roy Gean. At the conference in Mr. Gean’s office Mrs. Kincheloe said that she asked that the money be put back in the Fort Smith savings and loan bank just like it was in the Oregon bank. As a result of that conference the money was placed in the Fort Smith Savings & Loan in the name of Inez Farrar and Emily L. Kincheloe — however Mrs. Farrar and her attorney kept possession of the savings certificate. In Sept. 1969, Mrs. Kincheloe employed her present counsel and filed suit to recover the $15,000.

Mrs. Farrar’s testimony relative to the May 13 and 14 incident was that Mrs. Kincheloe came over to her house and told her that the preacher and two other men were at Mrs. Kincheloe’s house and that she was going to let the preacher have $5,000 on 6% interest, "and that is more than I could get any place.” Mrs. Farrar’s testimony about receipt of the certificate is, “Mom gave it to me and told me to take it and put it in my safety deposit box. I had it in my possession at the time.” Mrs. Farrar denied that she broke into the trailer or that she took any papers away from Mrs. Kincheloe. When asked about the purse, Mrs. Farrar stated: “She gave me her purse and her money to keep for her just like she gave it to me the day she went to the hospital.”

In the Hobbs case, relied upon by appellants, the facts showed that Gayler gave money in a bank to Winnefred by giving bank books to Winnefred’s mother to be kept for her, together with a large number of U. S. bonds purchased by Gayler and made payable to himself and Winnefred. When Gayler’s attention was called to the fact that Winnefred’s name was not on some of the bonds, he returned the bonds to the government and had them reissued in both names. Other evidence showed that Gayler had stated repeatedly that he had given the money and bonds to Winnefred. In upholding the trial court’s finding that there was a completed gift we said: “If the gift be intended in presentí, and be accompanied with such delivery as the nature of the property will admit, and the circumstances and the situation of the parties render reasonably possible, it operates at once, and, as between the parties, becomes irrevocable.”

Mrs. Kincheloe’s testimony here is that the savings certificate from the Oregon bank was taken from her by force. Mrs. Farrar’s testimony is that the certificate was delivered to her along with the marriage certificate and purse for safekeeping. As we review the record, the testimony is more than ample to sustain the trial court’s finding that there was no gift in presentí to appellant Mrs. Farrar. Rather it appears to us that Mrs. Kincheloe was following the advice of her Oregon counsel in doing some estate planning.

Affirmed.


author: Frank Holt, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Cecil PRUITT & Louise Pruitt
    5-5400
    460 S. W. 2d 316
    Opinion delivered December 14, 1971

      Thomas B. Keys, George O. Green ir Hubert E. Graves, for appellant.

      Charles A. Walls, for appellees.
   Frank Holt, Justice.

In this condemnation proceeding the State acquired 21.79 acres of appellees’ lands. This acquisition, which was needed in the relocation of a controlled access facility, bisected a 200-acre tract of appellees’ lands. The landowners’ witness, Doyle Greer, estimated their damages at $29,000. Two expert witnesses for the landowners testified that damages amounted to $27,500 and $24,700 respectively. Value witnesses for the State estimated appellees’ damages at $12,000, $11,350 and $10,850 respectively. The jury awarded $22,000 to the landowners.

On appeal appellant asserts for reversal that the trial court erred in overruling its motion to strike the testimony of Mr. Greer as to the value of the property before the taking because this witness testified “to the value of the property to him, or what he would give for it, rather than the fair market value” of the property; therefore, says appellant, he gave no substantial evidence to support his value testimony. We find no merit in these two contentions.

Appellant primarily relies for its position upon these extracts from Mr. Greer’s testimony. On cross-examination:

“Q. Wasn’t what you are testifying to what you would give for it, sir?
A. Yes, sir.”

Then, on re-direct examination:

“Q. And your values were placed on there based on your experience buying and selling real estate in th.. area?
A. Yes, sir.”

And again, on recross-examination:

“Q. What you are testifying to is what you would give for that land and what you yourself have given for it?
A. Yes, sir.”

These quotations from Mr. Greer’s testimony are, of course, only a small portion thereof. It appears from Mr. Greer’s lengthy testimony that he is the owner of lands which adjoin the appellees’ lands; that for more than twenty years he has engaged in the buying and selling of real estate in this area; that at the time of the taking of appellees’ lands Mr. Greer owned about 500 acres in separate tracts located in this area which is near the city of Cabot; that during the last ten years he has bought and sold more than 50 tracts of land in the Cabot area; and that his livelihood consists mainly of buying tracts or farms and subdividing them into smaller tracts, which activity included a tract that adjoins appellees’ lands.

We are of the view that the trial court properly overruled appellant’s motions to strike Mr. Greer’s testimony. His answer on cross-examination as to what he would give for the land was an isolated part of his total testimony and only one factor bearing upon the basis of his before value of the property in question.

Mr. Greer demonstrated a familiarity with appel-lees’ lands, its advantages and present and future uses, all of which were based upon a longstanding knowledge of the fair market value of this and other lands in this area. He was a competent witness. Arkansas State Highway Comm. v. Holt, 242 Ark. 287, 415 S. W. 2d 643 (1967).

In the circumstances, Mr. Greer’s expression on cross-examination as to the value of the property to him, when construed with reference to his total testimony, goes only to the weight rather than to the admissibility of his testimony. Certainly it must be said that Mr. Greer’s testimony as to the fair market value of the property before the taking constitutes substantial evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    WHEELING PIPE LINE, INC. et al v. ARKANSAS COMMERCE COMMISSION
    5-5409
    460 S. W. 2d 784
    Opinion delivered December 21, 1970

      Harper, Young & Smith and Q. Byrum Hurst, for appellants.

      Smith, Williams, Friday ir Bowen; By: William H. Sutton, for appellee.
   Carleton Harris, Chief Justice.

Appellants, Wheeling Pipe Line, Inc., (hereinafter called “Wheeling”), and Earl Gibbon Transport, Inc., (hereinafter called “Gibbon”), appeal from a judgment of the Pulaski Circuit Court affirming an order of the Arkansas Commerce Commission, that order granting the application of Arkansas Transport Company for authority to render service as a motor carrier of petroleum products, intrastate, between all points and places in Arkansas. Ap-pellancs, along with another motor carrier engaged in the same service, were protestants at the hearing on the application before the commission. They contended there, and contend here, that appellee failed to establish that the service applied for is presently required or will be required by future public convenience or necessity. It is also contended that the commission erred in failing to consider the effect of the proposed motor carrier service upon the service rendered by appellants, and it is asserted that their service is adequate to meet the needs of the public.

Harry H. Coonley, president and general manager of appellee company, testified in behalf of the application. The company handles no commodities except petroleum and petroleum products. He testified relative to the present authority of the company to operate in Arkansas, listed the number of units stationed in several different cities, and said that the company was on call 24 hours per day. Mr. Coonley mentioned the great number of changes that had taken place in transportation in the oil industry, stating that where farmers used to bring a 55 gallon drum into the bulk plant, those farms today constitute transport delivery accounts, and that industrial users that once obtained their products from service stations now have their own facilities. The witness said there has been a continuing diminution of intrastate service by railroad, and that new pipe line terminals have been constructed in a number of cities in this state. He explained that the new setup has made intrastate deliveries heavier than in many years; also there are new fuel users and new methods for use in industry and agriculture, this condition being occasioned somewhat by the new industrialization of the state. It was mentioned that additional major oil companies have come into this area; the construction and use of service stations have increased considerably, and all of these facts put together mean that there is a requirement for additional transportation services. Mr. Coonley testified that within the area presently served, his company provides same-day service to and from all places which the company is authorized to serve, contrasting the advantages of this service with next-day service which is the service normally provided by the companies engaged in motor carrier service; he was confident that if the application should be granted, his company would be able to provide same-day service to all points and places authorized. The witness mentioned the proposed building of new terminal facilities, and stated that additional equipment, where needed, would be stationed at appropriate points; that appellee company is financially able, and stands ready, to provide any and all equipment necessary to provide effective service throughout the state. Mr. Coonley is a past president of the Arkansas Truck and Bus Association and one of the founders of the Arkansas Safety Council.

The application was supported by William C. Pinson, sales representative for Hamilton Oil Company of Memphis, Webb Dowell of Oklahoma City, transportation dispatcher for Continental Oil Company, Leland Cleghorn, a wholesale gasoline distributor owning his own company, L. G. Murrell, co-owner of Horton Oil Company, Lewis D. Rada, traffic manager of petroleum for Kerr-McGehee Corporation, J. W. Dollarhite, supervisor of traffic and rates for Sunray DX Oil Company, J. Lewis, an oil jobber in McGehee, and John Van Sickle, secretary-treasurer of Christopher Oil Company.

Mr. Pinson stated that he was familiar with the intrastate transportation needs of his company in Arkansas, and he stated that the company customers are independent service station operators with retail outlets, jobbers, buying from his company, and reselling to service stations, transport droppers (described as persons who have sufficient storage to receive delivery of a transport load in the industrial field), and agricultural customers. He said that his company initially receives products from refineries and pipe line terminals in operating areas, and the company has need of transportation within the territory served. The witness tesd-fied that the service of the applicant within its present service area has been most satisfactory and efficient, and that applicant had provided same-day service whenever he had requested it. According to Pinson, the proposed service would meet a need for petroleum and petroleum products that was not being met by existing carriers. He said that some of his customers had limited storage and might “run dry” if they would not get immediate service; that this condition has brought about a need for same-day service in many cases. The witness stated that he was not receiving same-day service from the existing carriers in the areas where appellee had applied for authority; there might be an isolated case where he had received same-day service, but as a general rule, it was not available. He said that he had asked present carriers to put in same-day service, but had been unable to obtain it. Pinson considered the prospect of having this service as an excellent sales tool with customers who had limited storage problems and might well run out of gasoline over a week-end if they were unable to get a load in on the same day before the station closed; he added that this had happened in the past.

The witness testified that there are peaks and lows with regard to transportation requirements and that there are frequently price changes; that same-day service enables the customer to obtain additional gasoline before the price increase goes into effect. He mentioned contacts with other transport companies that had been unsatisfactory. Pinson said that it was a real convenience to be able to call a carrier before noon and obtain delivery that same day before the customer closed his place of business.

Mr. Dowell testified that Conoco used the services of the applicant company in areas they were permitted to serve from time to time, and that he considered the service outstanding; that if appellee’s application were granted he would certainly utilize its services. He said there are times when the present transport service which he is receiving from Ft. Smith is inadequate, and he mentioned dissatisfaction with one of the transport services. Like Pinson, he mentioned that requirements for additional equipment were increasing because his business was increasing, and he emphasized that his company was receiving demands from its customers for same-day service.

Mr. Cleghorn lives in Arkadelphia, and he stated that he would have a particular need for same-day service. He agreed with Pinson that dealers would let themselves get low in their gas supply and same-day service would be a great convenience and aid in his operation. He said that he had endeavored to obtain same-day service from present transport companies but generally did not receive it. The witness mentioned that Gibbon’s service on a next-day basis was satisfactory (considering that it was next-day) but if some company could render same-day service in the future, he would like to have the opportunity to be served by that company. Cleghorn added that he thought it was possible for a petroleum product carrier to provide same-day service, but in his 26 years in the business, he had never seen it with any consistency.

Murrell, whose principal place of business is located in Conway, agreed with the witnesses about the value of same-day service, and he stated that Arkansas Transport had met that need when he had asked for it. He was critical of Wheeling as to the service rendered. Murrell testified that the service offered by applicant would be a particular convenience to customers in smaller towns.

Mr. Rada, a resident of Oklahoma City, was very complimentary of the service given by the applicant (from the Conway and West Memphis terminals), stating that his company had found it very satisfactory, and that same-day service in the above territory had been given in “90% of the places”. Mr. Rada said that the sales of his company intrastate in Arkansas in 1967 amounted to 27,679,000 gallons, and that the company desired to expand its facilities, and would utilize the proposed services of the applicant; that one-day delivery was needed, and the company desired that that service be obtained over the entire state; such a service was not being received from existing carriers.

Mr. Dollarhite, who lives in Tulsa, Oklahoma, agreed with the other witnesses about the value of same-day service, and stated that his company needed additional common carrier service.

Lewis testified that the products of his company were presently shipped from El Dorado by Wheeling, and that company service had been good, but though he had requested same-day service, Wheeling was unable to accommodate him. He also made the same remarks relative to Gibbon. The witness said that it was rare when this service could be obtained; that same-day deliveries would allow him to free several thousand dollars in inventory.

Mr. Van Sickle held the same views and stated that same-day service would meet a need not presently being met by the other carriers. He mentioned ordering a load of gasoline to be picked up in Ft. Smith by Breeding to be hauled to Bentonville the next day, but said it was not delivered until the third day. The witness stated that it is hard to get gasoline just before a week-end since there are not enough trucks to haul all the gasoline everyone needs to fill up their tanks.

Fred Worsham, Vice President for Wheeling, testified that his company had 90 tractors and 114 trailers, and that it was the policy of the company to purchase additional units as needed. He said that it is unrealistic to assume that all same-day shipments can be delivered as requested and that the time of the receipt of the order, as well as loading and delivery time, all play a major part in rendering same-day service. The witness said that it was not a sound business practice for a carrier to own expensive equipment and have trained drivers available only for same-day type service, and that a carrier who received business on the basis that the order would be filled on the same day, would not be able to compete rate wise with carriers who endeavored to obtain the most utilization of their equipment and personnel. He stated that his company had idle equipment constantly, though there might not be idle equipment at a particular point or a particular time; at other times and places there would be equipment not in use. Wor-sham said that if the application of appellee were granted and the supporting shippers used the services of the applicant, it probably would divert traffic from some other carriers. The witness stated that he was not aware of complaints concerning the services rendered by his company. Mr. Worsham said that Wheeling does not offer same-day service on a daily basis, not having the equipment available for that consistent service; further, that he did not believe any carrier could regularly provide equipment for same-day service.

Steve McCommas, employed by Hugh Breeding, Inc., at Tulsa, Oklahoma, testified that his company handled business on a call and demand basis, “first come— first served” with exceptions of emergencies; that the normal service rendered from the Ft. Smith terminal on an order received one day, was to make delivery that night, if facilities were available, or on the following day. He said that he had had no complaints from any of the witnesses appearing on behalf of the applicant as to the service Breeding had rendered. Mr. McCommas testified that his company did not offer same-day service regularly, although they would so perform on occasion. He stated that he considered this service, as far as Breeding was concerned, unrealistic and uneconomical, and the company could not offer such a service on a regular basis.

G. O. Coleman, Executive Vice President of Gibbon, testified that same-day service is not frequently requested and that his company has time and equipment to render additional service to new customers; however, he stated that they did not solicit on the basis of offering same-day service, and that it frequently is impossible to provide such a convenience. He said that same-day service in his company would be rendered less than 50% of the time.

Appellants’ first point is predicated on the fact that the individuals who testified in support of applicant were not, as they say, members of the “general public”, but were persons who were either producers, wholesalers, or distributors of motor fuel, interested in the service only as it affected their own personal needs or the needs of their respective companies. Appellants say that it is apparent that the witnesses were interested in only their own convenience for profit, and the protestants rely in large measure on the case of Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907, wherein it is stated that in determining whether an application should be granted, public convenience and necessity should be the first consideration, the interest of public utilities already serving the territory secondary, and the desire of a new applicant for a certificate should only be considered as a minor matter. We agree with these principles of law, which are reiterated in subsequent cases. See Southwestern Transportation Company v. King, 240 Ark. 309, 399 S. W. 2d 276. But nonetheless, we do not agree with appellants’ contention that the public would receive no benefit. Santee v. Brady, Supra, is a case that involves literally what appellants term “the general public” for Santee was given a permit to operate as a commercial carrier of passengers; in other words, he received'a permit to operate a bus line. Evidence offered on his behalf consisted of. persons who testified that they had no way to get to Little Rock, transact business, and return home the same day, because of the inadequacy of the service offered by those who were opposing the application. Witnesses were offered by the remonstrants, but this court held that the commission was correct in granting the permit to Santee. In cases involving transportation facilities, the proof of convenience and necessity is made by those using the service. Of course, a physician, or a barber, or a shoe salesman, would have no reason to testify that petroleum transportation was inadequate; not being engaged in the oil business, these persons would have no knowledge of the needs of that industry nor would they, since they are not directly affected, have a great deal of interest in the subject. This is not to say that there is no benefit to these, or other members of the general public, which will be subsequently mentioned.

The various carriers of general commodities, in making application for additional permits, offer the testimony of those persons who use the service. We know of no other way that the need for additional transportation services could be shown. In Southwestern Transportation Company v. King, Supra, the application of King was supported by shippers who testified that the service of King’s company (Red Line) was far better than the service of other carriers. In Arkansas Motor Freight Lines, Inc. v. Batesville Truck Line, 214 Ark. 448, 216 S. W. 2d 857, the witnesses who supported the successful applicant represented various shippers and recipients of the goods, including one in the building business, one representing a lumber company, one operating a plumbing and electrical shop, and one who operated a wholesale grocery. The court commented that the testimony was impressive, mentioning that the witness in the building business lost over $250.00 because of delay in receiving his shipments from present operators. Further mention was made of the delay in receiving shipments by the other witnesses. In Arkansas Express, Inc. v. Columbia Motor Transport Company, 212 Ark. 1, 205 S. W. 2d 716, the witnesses supporting the appellee company were businessmen and shippers of merchandise, i. e., users of the service. Of course, the witnesses in the case before us are actually members of the public, but even if we use the term “general public” as appellants use it, a benefit is shown, for persons taking a trip on a week-end are clearly inconvenienced if they run out of gasoline, and the station in which they stop for a refill, has also run out because of no week-end deliveries.

Nor do we agree with appellants in their second contention, viz, that adequate service is being rendered at the present time; we think the review of the evidence, heretofore set out, contradicts that fact, and there is no need for further comment. It might be pointed out also that there was no occasion to give the protestants an opportunity to furnish additional service, for the testimony of the officials of these companies made it clear that they have no intention of endeavoring to furnish same-day service on a consistent basis.

We do not know whether appellee can perform in the manner testified to, nor are we well enough versed in the transportation of petroleum products to say whether the proposed service is practical and realistic. Such a determination is one to be made by the commission. It is so well established as to require no citation of authority that while cases from the commerce commission are tried de novo, we will not reverse a finding by the commission unless that finding is against the preponderance of the evidence. This court has recognized many times that the members of the commission have an expertise in these matters that we do not have and as stated in Washington Transfer & Storage Co., v. Harding, 229 Ark. 546, 317 S. W. 2d 18.

“Where a matter is heard and decided by an administrative body such as the Public Service Commission, [Now Commerce Commission] an order made by it should be upheld by the court on appeal unless it is against the weight of the evidence. . . . We try cases of this kind de novo, but it is the duty of the courts to accord due deference to the finding of the Commission, since it is the agency upon which the General Assembly has placed the duty to investigate and determine, in the first instance, the need for any proposed motor carrier service.”

Affirmed.

       According to testimony, the definition of same-day service is a call in the morning and delivery that same day.

       Arkansas Transport Company presently has terminals at West Memphis, Conway, and North Little Rock. It plans terminals at West Helena, El Dorado, and Ft. Smith.

       The case was here reversed because the Circuit Court had reversed the order of the commission granting the application.


text:
    Gregory L. FORD v. STATE of Arkansas
    5537
    460 S. W. 2d 749
    Opinion delivered December 21, 1970

      William C. McArthur, for appellant.

      Joe Purcell, Attorney General; Don R. Rebsamen, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Appellant, Gregory L. Ford, was convicted of Assault with Intent to Kill and the jury fixed his punishment at three years imprisonment in the state penitentiary. From the judgment so entered, appellant brings this appeal. For reversal, it is first urged that the court erred in holding that appellant was legally arrested, this contention being based upon the assertion that there was not probable cause for said arrest. It is further contended that the court erred in admitting into evidence a statement taken from appellant, the statement according to appellant being involuntary, taken under coercion, and taken after a failure to duly warn appellant of his constitutional rights. It is further asserted that the court erred in admitting into evidence a firearm purportedly used by appellant, and it is finally asserted that there is no substantial evidence to support the verdict.

The first contention is based upon the fact that Ford was arrested without a warrant, and appellant asserts that the testimony indicates that officer Ed Presley, a deputy sheriff of Pulaski County, Arkansas, and who was the principal investigator of the occurrence, could not name his informants, had not used the informants in previous instances, and had no idea as to their reliability. The proof in the case reflected that deputy sheriffs Darrel Rook and George Garrett investigated a disturbance at approximately 11 p.m. on August 31, 1969, at Ashley’s Bus Stop near Jacksonville. Other officers were already present at the scene when they arrived. Approximately 250 people had gathered there and Arthur Young, also a deputy sheriff, asked the crowd to disperse and go home, a large number complying with the request; however, a crowd estimated by different witnesses, at from 75 to 150 persons remained. In a few minutes, rock throwing commenced by some person or persons, and Garrett, who was still sitting in his automobile, reached down to get his microphone, then straightened up. From the testimony:

“I heard something like I had stepped in a covey of quail, unexpected type of noise, and then it felt like someone hit me up side of the head with something real hot. Then I heard a report of a gun and as I tried to turn my head, a stream of blood went around to where I couldn’t hold the microphone to my mouth and call for help.”

Garrett had been injured by the pellets from a shotgun. One pellet struck the side of the nose, passing into the large bone and protruding out the left side of the bone; another pellet went through the cheek and broke two teeth out of a denture; one went through the ear, one on each side of the chest, four in the arm, two in the side, one in the knee, and one in the leg. Following the shooting, the investigation immediately commenced, and continued for approximately a week.

We do not agree that there was no probable cause for the arrest. The matter of showing the reliability of an informant is not at issue in this case, for officer Presley stated that he had not known these informants prior to the shooting of deputy sheriff Garrett. But surely no one would contend that because they had never previously given any information which could be tested for reliability, the officer should have ignored what he was told by them. Let it be remembered that this apparently was not a crime which had been planned days or even hours in advance (which is generally the case where the police make use of an informant) but rather occurred as an indirect consequence of a disturbance that had just taken place, and where at least several dozen people were congregated. Appellant has said that the evidence “indicates” that Presley could not name his informants; the transcript however reflects that the officer was never asked the names of these individuals. When interrogated as to how the people (informants) knew appellant had fired the shot, Presley answered “They was at the place”. This testimony is certainly indicative of the fact that these particular persons saw Ford fire the gun, and apparently this was the view taken by defense counsel, since he asked no further question relative to this phase of the case. It also appears that a number of other people mentioned Ford, but their information was more indefinite.

As to the statement made by Ford, officer Presley testified that Ford was arrested about 8:30 p.m. on August 4, but was not questioned until the next morning. Presley said that the first thing he did was to advise appellant of his rights, as he expressed it, the “Miranda Warning”. The deputy sheriff stated that he carried the card with him at all times containing the several warnings that the United States Supreme Court, in Miranda v. Arizona, 584 U. S. 436, 86 S. Ct. 1602, held to be required before a prisoner could be interrogated. At the trial, the first examination of Presley took place in chambers, and Ford also testified in chambers, stating that he and his brother had been picked up by the officers “I think it was on Tuesday evening, right after I got out of school”. Ford stated that he was told that he and his brother had shot the sheriff. He said that he was not told that he had a right to remain silent, the right to an attorney, or that anything he said could be used against him. Appellant further stated, in response to a leading question from his attorney, that he was told that his brother would be permitted to go home if he (appellant) signed a statement. While not altogether clear, it appears that the younger brother was permitted to go home that night, and if appellant’s statement was correct, the officers .were unusually trusting, for it is admitted that, though arrested on Tuesday evening, appellant was not questioned until the next morning. If such a statement were made, it would seem logical that they would have obtained the signature on the statement before they ever released the brother. There was no other evidence which indicated in any way that appellant’s assertion was true. At any rate, this was a question to be determined by the trial court. Ford admitted that he did make a statement that he shot at an automobile. The evidence clearly reflects that only one shot was fired, and several witnesses stated that there was no other traffic in the area. There was no contention that appellant had been physically mistreated in any manner. Of course, we have again a situation where the testimony is in conflict. Both versions cannot be correct. The court, after hearing the evidence mentioned, held that the statement was voluntarily made, and there is certainly substantial evidence to support that finding. Following the hearing in chambers, Presley testified before the jury and read the statement made by Ford, which is as follows:

“I have been advised of my rights and I make this statement freely. The night of the shooting, a fight started at the skating rink. We came home to get some guns because the other group had guns and one of the boys in the group said he was going to kill me so I got Larry’s gun, that’s Larry Barron, and came up to the malt stand and as the car that we was supposed to shoot at went by, I shot at the car and accidentally hit the officer. I then ran and gave the gun back to Larry. Signed Gregory Ford.”

We sustain the court in its finding that the statement was voluntarily made.

It is contended that the shotgun which had been obtained from Larry Barron after Ford made his statement, was improperly offered into evidence, but this point is based on the contention that the statement itself was involuntarily made, and the obtaining of the shotgun thus came under the doctrine “Fruit of the poisonous tree”. We have already held that the confession was voluntarily made, and that being true, there can be no merit in the contention relative to the shotgun.

Finally, it is argued that there is no evidence to support the verdict of assault with intent to kill, appellant stating, “There is no showing of intent to kill or injure George Garrett, the victim in this cause, and appellant’s statement indicates that he had no intention of inflicting harm to the victim”. We do not agree. In Davis v. State, 206 Ark. 726, 177 S. W. 2d 190, this court said:

“Although the state is required to prove that the defendant actually intended to kill, it need not depend upon declarations made by the defendant to establish such fact. While the intent to kill cannot be implied as a matter of law, it may be inferred from facts and circumstances of the assault, such as the use of a deadly weapon in a manner indicating an intention to kill, or an act of violence which ordinarily would be calculated to produce death, or great bodily harm. In determining whether or not the intent to kill should be inferred, the trier of the facts may properly consider the character of the weapon employed and the way it was used, the manner of the assault and the violence attendant thereon; the nature, extent and location on the body of the wound inflicted, if any; the state of feeling existing between the parties at and anterior to the difficulty; statements of the defendant, if any; and all other facts and circumstances tending to reveal defendant’s state of mind.”

While the record reveals no prior difficulties between the parties, it appears evident that there was an intent to •kill. Appellant did not testify before the jury, nor was there any testimony offered on his behalf. Accordingly, the evidence as to intent must be ascertained, not only from appellant’s statement, but from surrounding circumstances, and the nature of the act itself. Actually, the statement signed by appellant, and heretofore set out, does not confess guilt to the charge, for Ford said that he accidentally shot the officer. It is not entirely clear whether he means that he intended to shoot at the occupants of another vehicle, (rather than Garrett’s vehicle) or whether he was simply saying that he shot at the officer’s car, and only accidentally hit the officer. The best indication from the statement is that he meant he was shooting at another vehicle or its occupants, rather than the car operated by Garrett. However, as previously mentioned, the testimony reflected that no other car was being driven in the area at the time of the shooting; in fact, testimony from the officers revealed that all traffic had been stopped prior to the shooting. This was a strong circumstance that the car shot at was the automobile intended by appellant. It would seem strange indeed that Ford would be shooting at somebody from a rival “group” when so many police officers were present. If on the other hand, Ford, in his statement, meant that he only shot at the officer’s car, not intending to hit Garrett, the jury certainly could have found that the nature of the wounds were indicative of the fact that the gun shot was directed at Garrett himself. As previously set out, the officer was struck in the nose, the shotgun pellet lodging in the bone, cheek, ear, both sides of the chest, arm, side, knee, and leg by a blast from a 12 gauge shotgun. It is apparent that Garrett was rather lucky, for if the contents of the shell had struck him at other parts of the body, he could have been killed or suffered great bodily harm, including blindness. The evidence was sufficient for the jury to reach the verdict returned.

Affirmed.

       Several of the pellets are still in Garrett’s body, the doctors being unwilling to remove them for fear of further damage.

       No waiver was signed by appellant; Presley stated that he did not have a waiver form with him.


author: George Rose Smith, Justice.

text:
    John HIXON v. Hubert DEERING et al
    5-5406
    460 S. W. 2d 748
    Opinion delivered December 21, 1970

      Charles E. Tilmon, Jr., for appellant.

      Johnson & Johnson, for appellees.
   George Rose Smith, Justice.

This is an action in replevin brought by the appellee Deering to repossess a tractor and related equipment which he had sold to the appellant Hixon. Upon filing the suit Deering obtained possession of the property by making bond in accordance with the statute, that “he shall perform the judgment of the court herein by returning the property, if a return thereof shall be adjudged, and by paying such sums of money as may be adjudged therein against him in this action, not exceeding double the value of the property.” See Ark. Stat. Ann. § 34-2105 (Repl. 1962). The other two appellees, Cowling and Harris, were sureties on the bond.

By counterclaim Hixon asserted a breach of warranty, for which he sought damages. Upon trial without a jury the circuit court upheld Deering’s title and right to possession of the property, but the court also found a breach of warranty and awarded Hixon net damages of $2,030.02. A writ of execution against Deer-ing having been returned unsatisfied, Hixon asked for a summary judgment against the sureties on the bond. This appeal is from a judgment denying that request.

The court was right. Replevin is a special statutory proceeding in which judgment for the defendant “may be for the return of the property, or its value, in case a return cannot be had, and damages for the taking and withholding of the property.” Ark. Stat. Ann. § 34-2116. In this connection we said in a recent case:

“It must be remembered that an action in replevin is a special proceeding for the possession of property only. . . . Our cases point out that damages for detention are but an incident to the right of return and that there cannot be a judgment for damages where there can be none for return. . . . Furthermore, the cases point out that the sureties on a replevin bond can discharge their liability by returning the property to the person who was dispossessed.” General Electric Credit Corp. v. Bankers Commercial Corp., 249 Ark. 107, 458 S. W. 2d 143 (1970).

In a replevin action the sureties for the plaintiff sign the bond at the outset of the case, before the defendant’s possible defenses or counterclaims have yet been disclosed. Under the statute the sureties guarantee performance of the judgment in replevin, which, as we have said, may be for the property or its value, plus damages for the taking and withholding of the property. That is the limit of their liability. Consequently, despite the broad reference in the statute and in the bond to “such sums of money as may be adjudged against” the plaintiff, it is uniformly and properly held that the sureties’ liability does not extend to counterclaims involving matters not falling within the scope of the statute. Whisenhunt v. Sandel, 177 S. C. 207, 181 S. E. 61, 100 A. L. R. 376 (1935); Apgar v. Great American Ind. Co., 171 Wash. 494, 18 P. 2d 46, 87 A. L. R. 291 (1933); Wisconsin Live Stock Assn. v. Bowerman, 202 Wis. 618, 233 N. W. 639 (1930).

Affirmed.


text:
    SUNRAY SANITATION, Inc. and Carl D. CARPENTER v. PET, Inc.
    5-5410
    461 S. W. 2d 110
    Opinion delivered December 21, 1970
    [Rehearing denied January 18, 1971.]

      Crouch, Blair, Cypert ¿r Waters, for appellants.

      Russell Elrod, for appellee.
   George Rose Smith, Justice.

The plain tiff-appellee, Pet Incorporated, is engaged in the processing and sale of milk and milk products. In 1965 one of its tank trucks, loaded with some 48,000 pounds of milk, overturned on Highway 68 in Benton county and was heavily damaged. In 1968 Pet brought this action for its damages against the appellants, Sunray Sanitation and its employee Carl D. Carpenter, alleging that Sun-ray’s garbage truck had negligently spilled rotten eggs and other semi-liquid debris on the highway, creating a dangerous condition that caused Pet’s tractor and trailer to overturn.

At the conclusion of the plaintiff’s proof the defendants moved for a directed verdict. Their motion was denied. The defendants then elected to stand upon their motion, and the case was submitted to the jury upon the plaintiff’s evidence. This appeal is from a $6,984.68 verdict and judgment for Pet.

Basically, the appellants contend that Pet’s competent proof was insufficient to establish either the appellants’ liability or the extent of the appellee’s damages. This contention turns upon the admissibility of testimony given by three witnesses for Pet, all the testimony having been permitted by the trial court to go to the jury.

Sunray Sanitation was engaged in the business of collecting and disposing of garbage. Carpenter was assertedly its manager and truckdriver. At the point of the accident there is a dip in the highway, with an abrupt upgrade. There is also a sharp turn in the highway, almost a right angle. It was Pet’s theory that on the day of the accident Sunray’s loaded garbage truck, in making the turn in the dip, was negligently allowed to spill debris upon the highway, creating a dangerously slick condition that resulted in the damage to Pet’s tractor-trailer and the loss of its load of milk.

Pet called two witnesses to establish Carpenter’s agency for Sunray and his negligence. The witness Partlow, a State police officer, investigated the accident at the scene. He testified that in attempting to ascertain the source of the debris on the highway he called the Springdale Police Department and asked them to find out the manager of the company that delivered the spilled eggs and have the man call Partlow by telephone. Later that night a man who identified himself as Carpenter telephoned Partlow and told him that he had made two trips to a poultry processing plant that day, hauling eggs of the type that were spilled. The jury could also have found that Carpenter said that he was the manager of Sunray.

The appellants object to Partlow’s testimony, on the ground that he did not know Carpenter and was not able to recognize his voice. In the circumstances, however, the testimony was admissible, its weight being for the jury. The controlling distinction in such a situation is well stated in McCormick on Evidence, § 193 (1954):

If a witness testifies that he received a telephone call “out of the blue,” and that the voice at the other end declared, “This is X calling,” followed by a message from the purported X, this is not a sufficient authentication of the message as coming from X. The needed link, however, will be supplied if the witness testifies that he recognized X’s voice, or if the message reveals that the speaker had knowledge of facts that only X would be likely to know, or if other confirming circumstances make it probable that X was the speaker.

Partlow’s testimony, when tested by McCormick’s reasoning, was admissible. The fact that the person called in response to Partlow’s relayed request certainly indicates that Carpenter was in fact the caller. That conclusion is further confirmed by the caller’s admission of having hauled eggs from the processing plant. For similar cases involving calls made in response to a request see Godair v. Ham Nat. Bank, 225 Ill. 572, 80 N. E. 407 (1907), and Morriss v. Finkelstein, 145 S. W. 2d 439 (Mo. App. 1940). Of course it is remotely possible, as the appellants suggest, that an employee of Pet learned of the police investigation and impersonated Carpenter, but the appellants were free to argue that theory to the jury. It is not sufficiently probable to make the testimony inadmissible.

Another witness, Dale Reeve, who was a Pet employee, also investigated the accident. He arrived at the scene a few minutes after the accident and then drove to the processing plant “to catch up with this truck that had caused this spillage on the highway.” When Reeve reached the plant a truck with Sunray’s name painted on the side was in the yard. The driver identified himself as Carpenter and said that he had just come from Springdale with a load of waste. Reeve described the truck as being constructed in such a way that liquid debris could easily spill out of a catch-pan at the back end of the vehicle whenever there was a change in speed or direction. Under our decisions the fact that Sunray’s name was painted on the truck was a basis for an inference by the jury that Carpenter was an employee of Sunray and was acting in the course of his employment. T. I. M. E. Freight v. McNew, 241 Ark. 1048, 411 S. W. 2d 500 (1967). We find Reeve’s testimony to have been admissible.

A third witness, Marie Southworth, identified a number of business records that showed that Pet had paid $8,000 to have repairs made to the damaged tank trailer. When the appellants objected to the testimony on the ground that the witness had not established the reasonableness of the repair bill, the court merely took the objection under advisement. The objection was not thereafter followed up by a request that the evidence be excluded; so the assertion of error was not sufficiently preserved to make it available in this court. St. Louis & S. F. Ry. v. Brown, 62 Ark. 254, 35 S. W. 225 (1896).

Finally, we find no merit in the appellants’ complaints about the court’s instructions to the jury. The court properly refused to give an instruction about the speed of the Pet vehicle, because there was no proof of its speed. We find no inherent error in the court’s instruction No. 17, but we need not extend this opinion by discussing it; for the only specific objection made to it was interposed after the jury had retired, which was too late for an asserted error to be corrected. Hickory Springs Mfg. Co. v. Emerson, 247 Ark. 987, 448 S. W. 2d 955 (1970).

Affirmed.