author: Tom Glaze, Judge. Fogleman, Special Judge,

text:
    ATKINS PICKLE COMPANY, INC. v. BURROUGH-UERLING-BRASUELL CONSULTING ENGINEERS, INC. and Allen R. HENSON
    CA 80-406
    611 S.W. 2d 775
    Court of Appeals of Arkansas
    Opinion delivered February 11, 1981

      Friday, Eldredge & Clark, by: John Dewey Watson, for appellant.

      Harper, Young, Smith & Maurres, by: Thomas C. Harper, and Barber, McCaskill, Amsler, Jones & Hale, by: Austin McCaskill, Sr., for appellees.
   Tom Glaze, Judge.

The ultimate issues in this case on appeal involve venue. The appellant, Atkins Pickle Company, Inc., (Atkins) engaged the appellee, Burrough-Uerling-Brasuell Consulting Engineers, Inc., (Engineers) to design and supervise the construction of a brine storage area for cucumbers. The storage area was constructed on Atkins’ property in Pope County, Arkansas. Atkins also engaged Arkansas Erectors, Inc., (Erectors) and Arkansas Structural Products, Inc., (Structural) to assist in the construction and installation of the storage facility. The other appellee, Allen R. Henson, (Henson) an engineer and agent of Structural, participated with Engineers in the overall design and preparation of the plans and specifications for the facility.

After the storage facility was constructed and installed, Atkins contends that due to faulty design and installation, the concrete walls of the facility moved, causing it to leak brine and thereby ruin the cucumbers contained therein. Atkins filed suit in Pope County against Engineers, Erectors, Structural and Henson. Since National Surety Corporation (National) was the surety and bonding company for the performance of Structural and Erectors, Atkins also sued and joined National. None of the parties sued by Atkins are residents of Pope County nor were they served with summons in Pope County. All of the parties entered special appearances, challenging the Pope County venue. The trial court held it had venue in the actions against Erector, Structural and National but not against Engineers and Henson. Atkins appeals the court’s adverse ruling involving Engineers and Henson and raises two points for reversal.

Atkins first argues that there is joint or common liability between all of the parties it sued in Pope County and since the Pope County Circuit Court held it had venue over Erector, Structural and National, venue also exists as to Engineers and Henson.

In most cases, our Arkansas General Assembly has provided by law that a defendant must be sued in the county of his residence. The General Assembly has on occasion enacted laws which permit venue to be found in a county other than a defendant’s residence. The trial court did so in the instant case as to National, and in doing so, the court based its action on Ark. Stat. Ann. § 66-3234, which in pertinent part provides:

66-3234. Suits against insurers — Venue. — (1) An action brought in this State by or in behalf of the insured or beneficiary against an insurer as to a loss occurring or benefits or rights provided under an insurance policy or annuity contract shall be brought in either:
(a) The county in which the loss occurred, ... or
(b) The county of the insured’s residence at the time of the loss or death . . .

The court below also relied on the case of Ray Ross Construction Company, Inc. v. Raney, 266 Ark. 606, 587 S.W. 2d 46 (1979), wherein our Supreme Court construed § 66-3234, above, and held:

. . that the residence of the beneficiary on the surety bond and the county in which the loss occurred are sufficient to establish venue on a subcontractor’s complaint against a surety.

Although the case at bar does not involve a subcontractor’s suit against a surety, the trial court did apply § 66-3234 and held venue was established in Atkins’ suit against National. Moreover, the court found that the bond issued by National named and covered the performance of Erectors and Structural, and further found these two parties to be properly and jurisdictionally before the court. Atkins assumes by its argument in this appeal that the trial judge correctly applied the law in establishing venue over National, Erector and Structural, but claims the court erred only in not extending its jurisdiction to include Engineers and Henson. We do not agree.

The landmark case of Wernimont v. State, 101 Ark. 210, 142 S.W. 2d 194 (1911) is instructive in deciding the venue question at hand. The court in Wernimont stated:

It is the policy and spirit of our law, enacted into statute by our Legislature, that every defendant shall be sued in the township or county of his residence. To this general principle there are statutory exceptions, chiefly in cases where there is a joint liability against two or more defendants, residing in different counties. In such cases it is provided that suits may be brought in the county of the residence of any of the defendants, and service of summons can be had upon the other defendants in any county, thereby giving jurisdiction over their persons to the court wherein the suit is thus instituted. Kirby’s Digest, §§ 6072 [Ark. Stat. Ann. § 27-613 (Repl. 1979)] and 4558. But, before this jurisdiction can be acquired by virtue of these statutes over the person of such defendants non-resident of the county wherein the suit is instituted, it is essential that the defendant resident of the county where the suit is brought shall be a bona fide defendant. By our statute, it is further provided that, before judgment can be had against such nonresident defendant, a judgment must be obtained against the resident defendant. Kirby’s Digest § 6074 [Ark. Stat. Ann. § 27-615 (Repl. 1979)]. [Emphasis supplied.]

Since the Wernimont case, the Supreme Court has repeatedly held that in order to obtain judgment against a defendant who resides in a county other than that in which a suit is brought, the defendant must be jointly hable with a defendant who resides or is summoned in the county where the suit is filed. See Barr v. Cockrill, Judge, 224 Ark. 570, 275 S.W. 2d 6 (1955); Terry v. Plunkett-Jarrell Grocery Company, 220 Ark. 3, 246 S.W. 2d 415 (1952), and Meeks v. Waggoner, 191 Ark. 189, 85 S.W. 2d 711 (1935). In the case at bar, it is agreed that none of the parties sued by Atkins is a resident of Pope County. In fact, National is the only party against whom a summons could be issued by law and it was done pursuant to a specific statute, viz. § 66-3234 above. Atkins actually served its complaint and summons on National by having the sheriff deliver it to the Arkansas Insurance Commissioner in Little Rock as National’s agent. Whether venue was- correctly established as to National, Erector and Structural is not at issue in this appeal. For purposes of our decision, it is unnecessary for us to declide whether National was “summoned” in Pope County as that term was considered and contemplated by our Supreme Court in the cases of Wernimont, Barr, Meeks and Terry. In these cases, the Supreme Court was presented with facts wherein the law suit was filed in the county in which the defendant resided or was personally served with process. The reasoning and the decisions in these cases would not appear to be decisive of the venue issue before us. Regardless of the questions one might have concerning how venue should be established in the case before us, the law is clear that joint or common liability must exist between National, assuming it is properly “summoned” in Pope County, and the non-resident defendants, Engineers and Henson. Under the facts of this case, we find no joint or common liability exists between National, Engineers and Henson. The only liability which National could incur would arise out of whatever damages Atkins can successfully prove against and attribute to Erectors and Structural. Neither Engineers nor Henson is named in National’s surety bond. Thus, if Atkins were successful in its suit against Engineers and Henson, National would not be obligated or affected on its bond.

Atkins further claims that joint liability does exist between all of the parties because of allegations in the complaint which attributes negligence to all defendants jointly and severally. Of course, if any of the parties except National had been legally summoned in Pope County, Atkins’ argument might have merit. This, however, is not the case. It was National which was summoned and whether or not joint or common liability exists must be determined or measured commencing with National and its common liability, if any, with the other defendants. It shares none with Engineers or Henson.

The second argument advanced by Atkins that venue lies in Pope County is that Ark. Stat. Ann. § 27-601 (Repl. 1979) controls Section 27-601 (Repl. 1979) provides as follows:

. . . Actions for the following causes must be brought in the county in which the subject of the action, or some part thereof, is situated, . . .
# # *

Fourth. For an injury to real property . . .

It was orally argued by Atkins that injury occurred to its property because brine leaked onto the soil. Moreover, Atkins claims that the storage facility was a fixture and is, therefore, real property. If so, Atkins further argues the damage to the storage facility was an injury to real property and venue would be controlled by § 27-601 above.

Since no testimony or evidence was presented, our review of this case is limited to the pleadings. So, we consider Atkins’ contentions in light of the allegations contained in its complaint. The complaint fails to allege any damages to the real property owned by Atkins, and contrary to what may have been inferred in oral argument, the complaint is silent as to any damages Atkins may have sustained to its real property due to brine leaking into the soil. Where Atkins sets forth specific damages in its complaint, there is no mention of any monetary damages sought for anything other than that which was directly related to the storage facility.

Thus, for Atkins to prevail in its contention, we must find from the complaint that the storage facility is a fixture and, therefore, real property within the context that term is used in § 27-601 above. After a careful study of the allegations contained within the complaint, we are unable to do so. A fixture has been defined by our Supreme Court as property originally personal which, being affixed to the soil or to a structure, is clearly a part of the soil and, being affixed or attached to the land, has become a part thereof. It must also be annexed to the freehold for use in connection therewith and so arranged that it cannot be removed without injury to the freehold. Continental Gin Company v. Clement, 176 Ark. 864, 4 S.W. 2d 901 (1928). In Clement, the Court held an elevator in a cotton gin did not become a fixture, since it was not shown that it could not be removed without injury to the freehold. The allegations in Atkins’ complaint never mention that the storage facility was affixed or attached to the property nor that it would injure the freehold if removed. The facts alleged by Atkins refer to prefabricated base slabs and pre-cast-prestressed panel walls. The common usage of the term prefabricate indicates that the items employed in the construction of the storage facility were fabricated elsewhere but brought to the Atkins site for installation. Without evidence or assertions in the complaint to the contrary, it is certainly .reasonable to infer that the prefabricated items could also be removed from the Atkins site if Atkins so elected. We cannot insert words or language into Atkins’ complaint to provide the storage installation was affixed and could not be removed without causing injury to the real property. Although we might envision facts by which this storage facility could be a fixture, we are unable to do so from the complaint before us.

For the reasons stated above, we affirm the trial court’s decision.

Affirmed.

Corbin, J., not participating.

Fogleman, Special Judge,

joins in the opinion, but would also hold that National Surety Corporation was not summoned in Pope County.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice.

license: Public Domain

text:
    Edward J. KERN v. SELLS ENTERPRISES, INC., A Georgia Corporation
    80-198
    612 S.W. 2d 94
    Supreme Court of Arkansas
    Opinion delivered February 16, 1981
    [Rehearing denied March 23, 1981.]

      Martin, Vater & Karr, by: Charles Karr, for appellant.

      Jones, Gilbreath & Jones, by: Mark A. Moll, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Edward Kern, filed suit in the chancery court of Sebastian County alleging that he was induced to enter into a distributorship agreement by the untrue statements and misrepresentations of the appellee. Appellant sought common law equitable rescission, statutory rescission under the Arkansas Securities Act, Ark. Stat. Ann. §§ 67-1235 to -1262 (Repl. 1980), or damages under the Arkansas Franchise Practices Act, Ark. Stat. Ann. §§ 70-807 to -818 (Repl. 1979).

This appeal is from the chancellor’s order finding that there was no untrue statements or misrepresentations and that appellant was entitled to no relief. These findings of fact by the trial court shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. Rule 52, Ark. Rules Civ. Proc., Vol. 3A, Ark. Stat. Ann. (Repl. 1979).

There is a common factual thread of proof necessary to support each of appellant’s three stated grounds for relief — whether appellee’s representative, Higgins, told appellant that he would have an exclusive territory all to himself in the Fort Smith area if he chose to become a distributor.

The documentary evidence before the chancellor consisted of two major instruments.

The first is a list of questions labeled “Questionnaire to be Completed by Distributor” [hereinafter referred to as “Questionnaire”] which was signed by appellant and appellee’s representative and which purported to serve two purposes: to enable appellee, Sells Enterprises, Inc., to properly consider appellant’s application to be one of its distributors; and to verify whether appellant was certain that appellee’s representative, Higgins, had covered all “important aspects of the Sells Enterprises, Inc. Distributor Program.”

The second is a contract labeled “Initial Purchase Order and Independent Distributor Agreement” [hereinafter referred to as “Agreement”] which was signed by both appellant and appellee’s agent and which purports to be the entire agreement between the appellee and the appellant making the latter a distributor responsible for developing sales for appellee’s products in a “general geographic area” including Fort Smith and vicinity.

The significant testimonial evidence heard by the chancellor consisted of testimony by the appellant, his wife, Sharon, and appellee’s representative, Bill Higgins.

The testimony presented by Higgins clearly conflicted with that of appellant and his wife concerning conversations these parties had prior to entering the “Agreement.” Higgins testified to several important facts:

1. He took about 45 minutes or an hour to explain the entire program to the Kerns and gave them a copy of both the “Agreement” and “Questionnaire” to take home.
2. He informed the Kerns that the Federal Trade Commission would not allow appellee, Sells, to assign an exclusive territory.
3. He explained paragraph 16 of the “Questionnaire” to the Kerns, stating that there may be other distributors selected or currently established in the Fort Smith area, and they indicated they understood this on their answer to the “Questionnaire.”
4. The representative testified repeatedly that he had never promised the Kerns an exclusive sales territory and that he had made no misrepresentation or fraudulent statements with regard to the appellee’s marketing program.

Appellant’s testimony was conflicting:

Mr. Higgins told me “[I]t would be my territory to work as I saw fit”; “I would be the only one, that they would consider putting another distributor like it in Springdale-Fayetteville area”; but “[T]here was no one else” in the Fort Smith area.”

Neither of the written documents referred to can be construed to support Kern’s testimony that Higgins promised him an exclusive territory. Paragraph seven of the “Questionnaire” serves to inform appellant that to grant an exclusive territory would be illegal under the Sherman Anti-Trust Act. Although the statement about the Sherman Anti-Trust Act may or may not be correct, it serves to support Higgins’ testimony that an exclusive territory was not promised. The “Questionnaire” further stated in paragraph 16 that there “[M]ay be other distributors selected or currently established in the area.” Paragraph two of the “Agreement” provides that appellant shall devote his efforts to developing sales for the products not only in Fort Smith and Sebastian County but also in all surrounding counties in the general geographic area; it further provided that appellant’s efforts would not be limited to these areas. These documents clearly indicate that there were to be no territorial limits on appellant’s distributorship. We cannot say, therefore, in light of the testimony and documentary evidence before the chancellor that her findings of fact were erroneous.

Affirmed.


author: George Rose Smith, Justice.

text:
    Luke A. MOORMAN, Jr. v. PULASKI COUNTY DEMOCRATIC PARTY et al
    80-199
    611 S.W. 2d 519
    Supreme Court of Arkansas
    Opinion delivered February 16, 1981

      Henry N. Means, for appellant.

      Mark A.Stodola, Kirby Smith, Hugh L. Brown, and Larry L. Page, for appellees.

      James F. Lane, for amicus curiae.
   George Rose Smith, Justice.

This is a taxpayer’s action brought by the appellant Moorman against the Pulaski County Democratic Party, its County Committee, the County Election Commission, the County Judge, and the County Quorum Court. Essentially, the complaint attacks the validity of two statutes, one permitting quorum courts to appropriate public funds to pay any part of the expenses of primary elections and the other permitting political parties to require candidates to pay ballot fees to run for nomination in a primary election. Ark. Stat. Ann. §§ 3-102 (g) and 3-109 (Repl. 1976 and Supp. 1979). The complaint asks that the statutes be declared unconstitutional, that Pulaski County (not a party to the suit) be awarded a judgment against the Democratic Party for amounts appropriated and paid by the County toward the expense of Democratic primaries in 1976 and 1978, and that the County be enjoined from making such payments in the future. This appeal is from a judgment sustaining the defendants’ motion to dismiss the complaint for failure to state a cause of action and dismissing the action.

We first consider the plaintiffs attack on the statute authorizing a county to contribute to the cost of a primary election held by any political party. Here the plaintiff s major premise, fundamentally and inescapably, is that such an expenditure is for a private purpose rather than for a public one. On that theory the complaint alleges that the Democratic Party is using its ballot fees to pay routine party expenses rather to pay the cost of its primary elections. Hence, it is asserted, the Party should reimburse the County for any amounts paid by it for the cost of primary electibns.

The flaw in this argument lies in the invalidity of its basic premise. More than 30 years ago we held that primary elections are part of the state’s election machinery and may therefore be paid for with public money. Adams v. Whittaker, 210 Ark. 298, 195 S.W. 2d 634 (1946). More recnetly the Supreme Court has expressed the same view, in this language: “But it is far too late to make out a case that the party primary is such a lesser part of the democratic process that its cost must be shifted away from the taxpayers generally. The financial burden for general elections is carried by all taxpayers and appellants have not demonstrated a valid basis for distinguishing between these two legitimate costs of the democratic process.” Bullock v. Carter, 405 U.S. 134 (1972). It follows that a political party is not under any constitutional obligation to pay the cost of its own primary elections. Hence the use of ballot fees to pay party expenses rather than election costs cannot be said to be an indirect means of applying public money to a private purpose.

Second, Moorman’s attack upon the statutory authorization for the imposition of ballot fees must also fail. In the Bullock case, just cited, the court held that the imposition of excessive ballot fees, ranging as high as $8,900 for a county office, was a denial of the equal protection of the law, because only a wealthy person could pay the fee and qualify as a candidate in the primary. Here Moorman alleges, as a conclusion of law, that the ballot fees collected in 1976 and 1978 “were unreasonably high.” No figures are given. In fact, the complaint alleges that Moorman does not know the total amount of the ballot fees collected. There is no assertion of any standard to support the allegation that the fees were unreasonably high. Moreover, Moorman does not state that he himself was a candidate or prospective candidate in a primary; he merely challenges the fees as a citizen and taxpayer. Our Civil Procedure Rule 8 requires that a pleading state “facts showing that the pleader is entitled to relief.” An allegation that a fee was unreasonably high is a conclusion, not a statement of fact. Hence Moorman has not asserted a factual basis for the allegation that the imposition of ballot fees by the Democratic Party in 1976 and 1978 was contrary to any principle of constitutional law.

We do not consider an issue argued in an amicus curiae brief, because such a person must take the case as he finds it and cannot inject new issues. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479 (1977), cert. den. 434 U.S. 894 (1977).

Affirmed.


text:
    George H. CHRISTOPHER et al v. Horace JONES et al
    CA 81-12
    611 S.W. 2d 521
    Supreme Court of Arkansas
    Opinion delivered February 16, 1981

      Garza & Garza and Arnold, Lavender, Rochelle, Barnette & Franks, by: G. William Lavender, for appellants.

      McMillan, Turner & McCorkle, by: H. W. McMillan, and Tompkins, McKenzie, McRae & Yasser, by: Glenn Yasser, for appellees.
   George Rose Smith, Justice.

The appellants seek to obtain a review in the Court of Appeals of a chancery decree upholding the validity of a charitable trust. The Clerk of the courts refused to docket the appeal, finding that the record was tendered too late. This motion for a rule on the Clerk under Rule 5 comes to us for decision under Rule 29 (i). We agree that the record was not tendered until after the expiration of the last valid extension of time granted by the trial judge.

The decree was entered on May 8, 1980, and perhaps modified on June 19- After the notice of appeal was filed on May 30, the trial judge signed an order extending the time for filing the record on appeal to October 15. A further extension of time, however, was not signed by the trial judge until October 22, a week after the first extension had expired. The present motion for a rule on the Clerk attaches Judge Weisenberger’s verified statement that he remembers having verbally granted the extension before October 15 and that the failure to sign the extension until October 22 was an oversight.

The present uncertainty is typical of innumerable instances that arose under our former statute, which provided that the trial judge’s extension of time had to be “made” within the time originally allowed or within a previous extension. Act 555 of 1953, § 20. An order is “made” or rendered when it is announced by the judge, but the entry of the order is the clerk’s administrative act. Norfleet v. Norfleet, 223 Ark. 751, 268 S.W. 2d 387 (1954); McConnell v. Bourland, 175 Ark. 253, 299 S.W. 44 (1927).

When we adopted the Rules of Appellate Procedure, effective July 1, 1979, we sought to avoid the possibilities of uncertainty by stating explicitly in Rule 5 that the extension “must be entered” within the time allowed. Furthermore, the Reporter’s Notes to that rule, as revised by the court, point out unmistakably that “the order extending the time must actually be filed prior to the expiration of the time for filing the record, whereas under prior Arkansas law, the order of extension needed only to have been made within the time allowed and not necessarily filed.” The responsibility for the timely filing of appeals must rest upon the litigant and his attorney, not upon the trial judge or court reporter. We are unwilling to nullify the positive directive in Appellate Procedural Rule 5 and thereby resurrect the confusion laid to rest by that rule. An extension order must be filed within the specified time.

Rule denied.

Dudley, J., not participating.


author: George Rose Smith, Justice. Frank Holt, Justice, Darrell Hickman, Justice, Steele Hays, Justice,

text:
    Shirley Marie CURRY v. STATE of Arkansas
    CR 80-119
    611 S.W. 2d 745
    Supreme Court of Arkansas
    Opinion delivered February 16, 1981

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Chief Deputy Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

On the night of June 19, 1974, the appellant, Shirley Marie Curry, in four successive incidents shot and killed five persons and wounded a sixth. She was charged with capital felony murder in the second incident, in which she killed her former husband, Jimmy Lee Curry, and their daughter Sabrina, aged 17. The case was inactive for about four years because Mrs. Curry was committed to the State Hospital and found to be mentally ill to the degree of legal irresponsibility.

In July, 1978, the doctors reported that Mrs. Curry had recovered from her psychotic illness, had been in remission for over a year, and was able to understand the proceedings and to assist effectively in her own defense. They were still of the opinion that at the time of the offenses Mrs. Curry had probably been suffering from a mental disease or defect to such a degree as to make her unable to appreciate the criminality of her conduct or to conform her conduct to the requirements of the law. They expected Mrs. Curry to remain in remission from her iüness as long as she continued medication.

Upon resumption of the proceedings Mrs. Curry pleaded not guilty by reason of insanity. The first trial resulted in a hung jury. At the second trial the jury found Mrs. Curry guilty and sentenced her to life imprisonment without parole. The principal issue on appeal is whether there is .substantial evidence to support the jury’s conclusion that Mrs. Curry was not insane at the time she committed the two murders in question.

There is actually very little dispute in the testimony, the difficulties lying in the inferences to be drawn.

Mrs. Curry was awarded custody of the couple’s three children when she obtained a divorce in 1967, but her husband insisted upon a provision that the children be allowed, as each one reached 14, to choose the parent they wanted to live with. In 1971 Sabrina, the oldest child, chose to live with her father. June Cook, a frequent visitor to Mrs. Curry’s home after that, was surprised at the extent of Mrs. Curry’s hostility toward her former husband as much as six years after the divorce. The witness was also impressed by Mrs. Curry’s bitterness toward her daughter, whom she didn’t want to see or talk to. The bitterness arose from Sabrina’s decision to live with her father. Mrs” Curry also thought Sabrina was influencing the two boys to live with their father when they were old enough to choose.

According to lay witnesses, Mrs. Curry, with the possible exception of a few instances having no direct bearing on the case, appeared to be a normal person. She was unusually self-sufficient. During the early 1970’s she built and occupied her own house, going to the lumberyard to select materials and learn how to use them. Even the doctors whose testimony supported the defense of insanity found Mrs. Curry to be of above average intelligence and testified that she would have seemed to be a normal person in ordinary matters.

The homicides occurred on the night of June 19, 1974. That morning there was a hearing in chancery court about the custody of the older son, Richard, who was 14 and chose to live with his father. Among the witnesses were four persons who were to be killed that night: the father, Sabrina, Richard, and Jessie, the younger son, aged 11. Mrs. Curry testified, among other things, that she had objected to the children’s being allowed to make a choice of parents. She admitted having threatened to shoot her former husband. She had told Richard, in connection with the possibility of his leaving at 14, that if his father came to the house and tried to take the child’s clothing and things away, “I’ll blow his guts out.” She said she made that statement because she felt like it. The court awarded Richard’s custody to the father, effective the next day.

The bare facts about the homicides were stipulated, with some additional testimony. Apparently Mrs. Curry first killed her two sons at her home in Lowell. Shortly after midnight she drove her pickup truck to her former husband’s home in Springdale and committed the two murders charged in the information. She shot Jimmy Lee Curry when he came to the door. She then went into Sabrina’s room. When Sabrina asked who it was, Mrs. Curry answered in a calm voice, “It’s your mother.” She then turned on the light and shot Sabrina. She went next to the home of Jimmy Lee Curry’s half-sister, in Springdale, and killed her. Her last visit was to the home of her own sister’s former husband, James Dodson, who lived west of Farmington. She shot Dodson twice, but not fatally. Dodson testified that his own divorce proceeding had been just about as nasty as you could get.”

Mrs. Curry was arrested and taken to police headquarters in Fayetteville. One officer testified that the first thing Mrs. Curry said to him was, “I missed the sixth one, didn’t I?” She seemed calm in answering questions as she was being booked, but she did say to an officer that she was not afraid of him and could kill him with two fingers. A matron at the jail testified that one morning while Mrs. Curry was in custody there she said she was happier than she had ever been, because her kids were in heaven.

There was expert testimony by four physicians: Dr. Bowers, Dr. Jenkins, Dr. Oglesby, and Dr. Taylor. They all thought that Mrs. Curry was not criminally responsible for the homicides. Three of them diagnosed her illness as paranoid schizophrenia. The fourth, Dr. Taylor, thought she suffered from paranoia only, but he had signed the staff report finding paranoid schizophrenia because such reports had to be unanimous. The opinions of the doctors were essentially similar. Dr. Bowers, for example, testified that Mrs. Curry had believed herself to be acting as a messenger of God or of the devil, whichever way she chose. She could not appreciate the criminality of her conduct. He did find it highly unusual that Mrs. Curry’s first incident of paranoid schiizophrenia occurred at about age 36; the first incidents usually occur in the 20’s. Dr. Jenkins said that Mrs. Curry believed that God was instructing her to do what she did. He said she was probably under a delusion at the time of the killings, though the psychosis can come and go with lucid intervals in between. She could have known that she was loading a gun, that she was pulling the trigger, • that she was killing people, that they would be dead. All those things were consistent with her delusion.

The jury were instructed, in the language of AMCI 105, that they were not bound to accept an expert opinion as conclusive, that they should give it whatever weight they thought it should have, and that they might disregard any opinion testimony found to be unreasonable. In a recent case involving a plea of insanity we pointed out that even though several competent experts agree and there is no opposing expert testimony, the jury must still decide the issue upon its own fair judgment. Gruzen v. State, 267 Ark. 380, 591 S.W. 2d 342 (1979).

We find substantial evidence to support the jury’s verdict. The two homicides on trial were those of the defendant’s former husband and 17-year-old daughter. Her hostility toward her husband had existed for some seven years; she had threatened, apparently more than once, to kill him. Her bitterness against her daughter had existed for three years and was such that she did not want to see the girl or to speak to her. Mrs. Curry was by no means incapable of rational thought; to the contrary, for all her life she had usually gone about the ordinary affairs of life in a normal manner. Upon the proof as a whole we cannot say that reasonable minds could not reach the conclusion reflected by the jury’s verdict. Indeed, a contrary holding in the face of all the evidence supporting the verdict would be in effect to say that when the expert witnesses agree with one another the jurors can reach no other conclusion. That is not the law.

A second argument is that the court should have given a requested instruction, taken from the language of Ark. Stat. Ann. § 41-612 (Repl. 1977), explaining to the jury that even after a verdict of not guilty by reason of insanity the court would still have three alternatives, the first of which would be to commit the defendant to an appropriate institution if the defendant was found to be so affected by mental disease or defect as to present a risk of danger to herself or to the person or property of others. The other alternatives were also explained, the general effect being to tell the jury that Mrs. Curry would not automatically be released if found not guilty by reason of insanity.

Instructions such as this one have been considered in many cases. Annotation, 11 A.L.R. 3d 737 (1967). The argument in favor of the instruction is that jurors know the effect of verdicts of guilty or not guilty, but they do not know the effect of a finding of insanity and may return a verdict of guilty to be certain that an insane person will not be prematurely released. On the other hand, the instruction raises questions foreign to the jury’s primary duty of determining guilty or innocence. Moreover, it would hardly be possible to give a jury complete and accurate information about all the possible future decisions with respect to a person found to be not guilty by reason of insanity. In much the same way, it is not really practical to tell a jury all about the parole system, even though it has a practical effect upon any sentence to confinement in the Department of Correction. Our rule is that no effort should be made to explain the parole system to the jury, even if the jurors request an explanation. Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971).

Upon the issue now presented the decisions in other jurisdictions are sharply divided, with the present trend being in favor of the giving of the instruction. In a case directly in point, however, we have held that such an instruction should not be given, because the jury is not officially concerned with the procedure to be followed after a verdict of not guilty by reason of insanity. Campbell v. State, 216 Ark. 878, 228 S.W. 2d 470 (1950). We have re-examined the question in the light of the more recent decisions and adhere to our position.

The appellant’s remaining argument is that the trial judge unduly restricted defense counsel in their questions about prospective jurors’ views about the defense of insanity. No objection was ever made that pinpointed an adverse ruling with regard to a specific question; so no error is shown. Indeed, we do not see that counsel were really restricted in any manner.

Affirmed.

Holt, J., concurs.

Hickman and Hays, JJ., dissent.

Frank Holt, Justice,

concurring. I concur in the affirmance. It is true that in Campbell v. State, 216 Ark. 878, 228 S.W. 2d 470 (1950), we said that “[i]t was no official concern of the jury what procedure might be followed, as to appellant, should he be found guilty because of insanity.” However, the trend in recent years definitely gives approval, by statute or case law, to the instruction offered here. 11 A.L.R. 3d 737 (1967 and Supp. 1980). The rationale is summarized in Commonwealth v. Mutina, 366 Mass. 810, 323 N.E. 2d 294 (1975):

On balance then, we believe it is best to entrust jurors with a knowledge of the consequences of a verdict of not guilty by reason of insanity. If jurors can be entrusted with responsibility for a defendant’s life and liberty in such cases as this, they are entitled to know what protection they and their fellow citizens will have if they conscientiously apply the law to the evidence and arrive at a verdict of not guilty by reason of insanity — a verdict which necessarily requires the chilling determination that the defendant is an insane killer not legally responsible for his acts.
The instant case represents a classic example of the injustice which may occur when such information is withheld from the jury. The jury could have had no doubt that the defendant killed Miss Achorn. The jury also heard overwhelming persuasive evidence that the defendant was insane at the time of the killing and that, for a long time into the future, he will remain a menace to himself and society. Foremost in their minds must have been concern for the safety of the community.
In the absence of an instruction from the trial judge as to the effect of a verdict of not guilty by reason of insanity, the jurors sought to render justice both to the defendant and to society ....

Here is a classic example of the need for a proper instruction as a guideline for the jury. A previous jury could not reach a verdict. The trial proceedings here clearly indicate this jury’s concern for society and the appellant. Two of the jurors were permitted to ask questions which were pertinent and searching as to appellant’s continuing dangerousness to society, because of her illness, and the effect of continued treatment. The jury found mitigating circumstances in that her mental capacity was impaired at the time of the alleged offense. It is common knowledge that a guilty verdict means that the defendant is subject to punishment, and that a not guilty verdict means the defendant goes free. It is not common knowledge that a not guilty verdict by reason of insanity does not necessarily mean freedom. Section 41-612 empowers the trial court, on a finding of not guilty by reason of insanity, to commit the defendant to the State Hospital to be placed in an appropriate institution or to order the defendant discharged or released on such conditions as the court deems appropriate. In other words, an acquittal does not necessarily mean freedom.

On this subject it appears it is for our legislature to determine whether an instruction, properly stating the law, should be given upon request.

Darrell Hickman, Justice,

dissenting. I join Justice Hays’ dissent but would add that I disagree with this court’s decision in Andrews v. State, 251 Ark. 279, 472 S.W. 2d 86 (1971) and with the statement in the majority opinion that the jury should not be instructed regarding the alternatives the law provides for people who are found not guilty by reason of insanity.

I have consistently opposed the idea that juries should set sentences. There are several reasons for my disagreement. First, a jury is in the least advantageous position to know what would be a fair sentence. A trial judge who hears cases day in and day out and is familiar with the entire criminal justice system is in a far better position to determine what a fair sentence is. Having the judge set the sentence would also lead to more uniformity.

We are required in many cases to reverse a trial court’s judgment because an error has been made in the sentencing stage of a trial. This error can only be corrected if the case is remanded for a new trial or the sentence is reduced. Neither alternative is desirable. The accused has been found guilty by a jury and that finding has withstood appellate review. The only error involves the sentence. But the same jury cannot be brought back together again and, therefore, a new trial is required. On the other hand, a reduced sentence is not satisfactory to the State because it usually involves a repeat offender who should not receive lenient treatment.

Even so, the law requires that the jury impose the sentence and we should not deny the jury the benefit of information that it should have in order to make a fair judgment regarding punishment. The jury should know about the parole system. A judge knows about it when he imposes the sentence. So what if the parole system is complicated? Trials are complicated and the law is complicated. We trust the jury to decide whether the people should live or die; surely we can trust them to use this needed information in an evenhanded way. Therefore, I would overrule Andrews and I would allow an instruction such as that proposed in this case.

Steele Hays, Justice,

dissenting. I view the evidence of insanity of this appellant as overwhelming. Three psychiatrists and a clinical psychologist testified to their opinion that Shirley Marie Curry was psychotic to the extent of being incapable of appreciating the criminality of her conduct or conforming her behavior to the requirements of the law. There was no expert testimony to the contrary. The lay testimony was insubstantial, limited with one exception, to witnesses who saw the appellant once, briefly, and could offer little other than that she “appeared normal.” The one witness for the state who had any continuing contact with her corroborated the mental aberrations and delusional episodes considered so significant by the experts.

Above all else, the crime itself attests to the legal irresponsibility of the perpetrator. When a mother, with cool deliberation, murders her two sons in their bed, to whom she is said to be “devoted,” murders her teenage daughter, her former husband, her former sister-in-law, and attempts yet another inner-family murder, all directed by either God or the devil, depending on which delusion is current, the product of a badly deranged mind is inescapable.

The evidence relied on to affirm this conviction includes reference to appellant’s calm demeanor during and after the crimes. In reality, this is evidence to the contrary. One who can conduct the calculated assassination of a family with calm and remain so afterwards demonstrates a derangement far better than someone who becomes distraught. The experts were cognizant of this abnormality, whereas the layman misread it.

I recognize that under the law the jury may ignore competent, expert testimony of insanity even in the absence of opposing expert testimony, but if lay testimony consists of little more than superficial observations that the defendant “appeared normal” then it fails to meet the requirement of substantiality when weighed against the combined, uncontradicted testimony of four specialists in the field of psychiatry, whose opinions are based on extensive testing, observation and interview with the appellant. While, as here, the totality of the evidence is so convincing that reasonable minds can come to no other conclusion then it becomes our duty to reverse.

Justice Hickman joins in this dissent.


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

text:
    Leona LANOY v. Charles L. DANIELS, Director of Labor for the State of Arkansas et al
    80-205
    611 S.W. 2d 524
    Supreme Court of Arkansas
    Opinion delivered February 16, 1981

      Youngdahl & Larrison, by: Deborah S. Groban, for appellant.

      Thelma Lorenzo, for appellees.

      James R. Cromwell, for amicus curiae, Central Arkansas Legal Services.
   Darrell Hickman, Justice.

This is an Employment Security Division case that was certified to us by the Arkansas Court of Appeals because it concerns interpretation of an Arkansas statute.

There is only one issue presented in this appeal and it is purely a question of law. Does Arkansas law provide for partial unemployment benefits where a worker is unemployed for part of the work week and is unavailable for work when work is offered during the remainder of that week? The Board of Review found that partial payments were not authorized because the employee was not “available” for.work the rest of the week. The circuit court agreed and we affirm the judgment.

The facts are not in dispute. Leona Lanoy was employed by the Morrilton Plastics Company in Morrilton, Arkansas, where her regular work week was five days. The first four days of the week in question Lanoy was available for work but was laid off due to a lack of work. On Friday, October 6th, she reported for work but after an hour and forty-five minutes received a telephone call regarding the death of her brother and she left work.

Lanoy argues that Ark. Stat. Ann. § 81-1103(m)(l)(B) made her eligible to draw unemployment compensation for the week ending October 7th regardless of whether she was “available” for work on Friday or not. The appellee, Charles L. Daniels, Director of Labor, relies on Ark. Stat. Ann. § Sill 05 (c) and argues that partial payments are not authorized by Arkansas law where the worker is not “available” for work during an entire week. Since Lanoy was not available for work on Friday, it is argued that she was not entitled to that week’s unemployment benefits.

This is presented to us as a purely legal question. The Central Arkansas Legal Services has filed an amicus curiae brief supporting Lanoy’s appeal. It is not disputed that responsible state agencies have consistently interpreted the availability provision of the Arkansas law as requiring that claimants be available for work or in the labor market during the entire work week for which they claim benefits in order to be eligible for unemployment benefits for that week.

Whether Lanoy had good reason for leaving her job Friday is not in issue. The appellant concedes for purposes of appeal that the question is not what happened on Friday but whether benefits may be paid for the four days of unemployment.

We conclude that the Arkansas law does not provide for partial benefits under these circumstances. Throughout the Arkansas statutes a week is referred to -as the measuring time for benefits. For example, § 81-1105 says, “An insured worker shall be eligible to receive benefits with respect to any week only if the director finds that . . .” [Emphasis added.] Ark. Stat. Ann. § 81-1104(c) is styled, “Weekly benefits for unemployment” [Emphasis added] and states: “For all claims filed on and after July 1, 1971, any insured worker who is unemployed in any week as defined in Section 2 (m) [§ 81-1103(m)] and who meets the eligibility requirements of Section 4 [§ 81-1105] shall be paid with respect to such week . . .” [Emphasis added.] The next paragraph, styled “Duration of benefits,”, also speaks of weekly benefit amount.

The appellee argues that § 81-1105(c) controls because it says “Such worker is unemployed, physically and mentally able to perform suitable work and is available for such work.” [Emphasis added.] The appellant concedes that she was not available on Friday but argues that this situation is not controlling because Ark. Stat. Ann. § 81-1103(m)(l) reads:

[A]n individual shall be deemed ‘unemployed’ with respect to any week during which he performs no services and with respect to which no wages are payable to him, or with respect to any week of less than full time work if the wages payable to him with respect to such week are less than 140% of his weekly benefit amount.

We cannot read out of the statute the availability requirement. Even though a worker can get compensation for a week during which the worker performed some work under some circumstances, a worker is not “unemployed” by law unless available for work. The appellant argues Ark. Stat. Ann. § 81-1103(m)(l) and a liberal interpretation of the statute would permit us to order at least pro-rata benefits.

We conclude that the situation cannot be stretched, even with a liberal interpretation, to fit the appellant’s case. This is especially true in view of a long-standing policy against such a practice.

Affirmed.

Purtle and Hays, JJ., dissent.

John I. Purtle, Justice,

dissenting. I cannot agree with the majority because they read into the Employment Security Act (Ark. Stat. Ann. §§ 81-1101 - 81-1108, §§ 81-1111 - 81-1121) a requirement that an employee who is involuntarily out of work must remain so for a period of one full week before becoming eligible for benefits. I cannot find any prohibition in the act against eligibility for a partial week. There is no dispute in the present case that the appellant was out of work for four days, and it was because her employer did not have work for her. The claim is for four days.

It is our practice to interpret such statutes as this in a liberal manner favoring the employee. In fact, a narrow construction, which I think the majority gives, of the act would defeat the very purpose for which it was established. Harmon v. Laney, 239 Ark. 603, 393 S.W. 2d 273 (1965). In Harmon the court interpreted the Arkansas Employment Security Act and Title 3 of the Social Security Act of the United States as being established for the purpose of “alleviating economic insecurity” and for the benefit of those “unemployed through no fault of their own.” Therefore, I would allow a partial week’s unemployment benefits to the appellant.

Hays, J., joins in this dissent.


author: Darrell Hickman, Justice.

text:
    James Wesley SHAW v. STATE of Arkansas
    CR 80-163
    611 S.W. 2d 522
    Supreme Court of Arkansas
    Opinion delivered February 16, 1981

      E. Alvin Schay, State Appellate Defender, by: Ray Hartenstein, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Darrell Hickman, Justice.

John Wesley Shaw was convicted of the capital felony murder of two elderly people and sentenced to life imprisonment without parole. He argues on appeal that three errors were committed at his trial. All of his allegations are without merit. We have examined the record for any other errors, as we are required to do, and finding none, affirm the judgment. The State’s theory of the case was that Shaw, an itinerant worker, became acquainted with the couple and visited with them at their cabin in Monte Ne, Benton County, Arkansas. Shaw killed the couple with a shotgun and hid their bodies in a cistern. He stole their pickup truck and shotgun and went to Oklahoma. The State’s evidence showed that a shotgun had been discharged through a screen door three times and that both people were killed with a shotgun. Shaw was later seen in Oklahoma driving a truck similar to the elderly man’s truck. He also was seen with a shotgun like the one belonging to the elderly man. Shaw later made statements denying that he had such a truck or shotgun and denying he was present when the killings occurred. Before the trial, Shaw learned that a jailmate of his was to become a witness against him and was prepared to testify that Shaw had admitted killing the couple.

After this incriminating evidence was introduced, Shaw made a detailed statement to the authorities in the presence of his lawyer. In this statement Shaw admitted that he had known the couple for some time and had stayed with them occasionally. On the day in question he said that both elderly people were drinking and arguing and that the woman got a gun and shot the man. Shaw said that he tried to grab the gun from the woman and shot the woman accidentally. He admitted dumping the bodies in a cistern. He also admitted taking the pickup truck and a shotgun, later selling the truck in Oklahoma.

Two alleged errors relate to the prosecuting attorney’s argument. The prosecutor’s remarks that are emphasized below were objected to by the defendant. The prosecutor said in his opening statement:

. . . They began to share the same roof a few years before their deaths. You will hear testimony concerning their affection for each other, their lifestyle. Off and on they came back to the old homestead, the old cabin at Monte Ne and lived there bothering no man, causing no one any problems whatsoever. They had worked their working lives and were now in retirement. If they had one fault, it was that they were willing to lend a helping hand to . . . [Emphasis added.]

In closing the prosecutor referred to the fact that Shaw gave a detailed statement to the police after the State had gathered considerable evidence. The prosecutor offered his opinion as to why Shaw had made this inculpatory statement. First, he argued that it was to offset the evidence discovered against Shaw. Finally, the prosecuting attorney said:

... I submit to you that it’s totally permissible for you to conclude that he agrees he involved himself in one of those deaths, but not two in order to beat the capital murder rap.

These statements in our judgment were within the limits permitted to advocates. The test is whether there was a manifest abuse of discretion by the judge in failing to properly act on an objection to improper remarks. Parker v. State, 265 Ark. 315, 578 S.W. 2d 206 (1979). We cannot find such an abuse in this case.

The court admitted into evidence a letter that the elderly lady apparently had written on the day of the killings. The State argued that its purpose was to show the woman’s state of mind on that day in order to refute Shaw’s statements that the couple had been arguing, drinking and fighting just prior to the killings.

The letter was an ordinary letter about the weather and contained only small talk. It may not have met the criteria for state of mind evidence envisioned by Rule 803, Uniform Rules of Evidence, [Ark. Stat. Ann. § 28-1001 (Repl. 1979)] but it was certainly harmless. Judgments are not reversed for harmless error. Harrington v. California, 395 U.S. 250 (1969).

Affirmed.

       Dear Sis
      Sat A.M. drop a few lines before it gets to hot. Just got back from town getting money orders & Gro. Sure been hot & dry as heck. Yard & everything burning. Things sure did wilt yesterday & I guess again today. Been having mower trouble all wk. but finally got it to going. Hope it holds up. Hade 3 glasses R B Jelly Wednesday. Another batch to work up. Do that today. Alva went to see Springer to mow the field, said he would. Thought maybe he’d be here today, but guess not after 10 o’clock. Boy this deal over here by Durr Ranch going to be some deal. Big thing. Roads all over that hill clear to lake. Started a big building at front. Well let this do for now. Got to get around & clean the house out a little & make up my berries.
      by by Love Sis & Alva.


author: Darrell FIickman, Justice.

text:
    Ray Jackson QUEEN, a/k/a Jackie QUEEN v. STATE of Arkansas
    CR 80-177
    612 S.W. 2d 95
    Supreme Court of Arkansas
    Opinion delivered February 16, 1981
    [Rehearing denied March 23, 1981.]

      Robert S. Blatt, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Darrell FIickman, Justice.

This is an appeal from an order revoking a suspended sentence entered by the Sebastian County Circuit Court.

Ray Jackson Queen had several convictions in the Sebastian County Circuit Court which resulted in suspended prison sentences. The prosecuting attorney, alleging several instances of misconduct by Queen, filed a petition to revoke those sentences.

After a hearing, the court concluded that two suspended sentences should be revoked, one in 1974 for ten years and one entered in 1976 for five years. The revoked sentences were to run concurrently.

On appeal Queen alleges five errors. First, he challenges the legality of the suspended sentences. Second, he argues that inadmissible evidence was used against him. Third, he contends that his misconduct did not warrant revocation. Fourth, he argues that the revoked sentences were excessive for his misconduct and, finally, that the trial court failed to give a written reason for the revocation. We find that one revoked sentence was improper and the other was excessive and we modify the sentence. We find no other errors.

The petition to revoke alleged that Queen had at least five suspended sentences. Three separate cases dated back to 1970 when Queen was placed on probation. Court orders in 1974 changed these probation orders to suspended sentences. Queen had a conviction for assault with intent to kill in 1976 with a partial suspended sentence. At the conclusion of the hearing in the present case, the trial judge stated that he would only consider two suspended sentences, the ten-year suspended sentence in connection with a burglary conviction that dated back to 1970 and the five-year suspended sentence imposed in 1976 in connection with the assault charge.

In 1970 Queen pled guilty to burglary and was sentenced to five years’ statutory “probation.” This probationary period was revoked in 1974 and Queen was sentenced to ten years imprisonment with the sentence suspended. This was clearly improper according to Maddox v. State, 247 Ark. 553, 446 S.W. 2d 210 (1969) aad Cantrell v. State, 258 Ark. 833, 529 S.W. 2d 136 (1975). In those cases we dealt with “court probation” as imposed by the Sebastian County Circuit Court and we held in both that where the plea of guilty was accepted, a later revocation could not exceed the probation period. Here, the plea was accepted and the term of probation was five years. Consequently, a later suspended sentence for ten years was improper.

The other sentence revoked is one imposed in 1976 after the criminal code was adopted. On February 26, 1976, Queen entered a nolo contendere plea to assault with intent to kill. According to the docket sheets and commitment order the court sentenced Queen to five years imprisonment with three years suspended — not five as the judge supposed. Undoubtedly the court was confused because there were so many cases before it, but the documents show that only three years were suspended and not five. The State virtually concedes this. Since the court originally imposed a five-year sentence and suspended three years of that sentence, it could only revoke the three-year suspended sentence. McGee v. State, 271 Ark. 611, 609 S.W. 2d 73 (1980). Consequently, judgment in this case will be modified so that Queen is ordered to serve only three years imprisonment.

The appellant also makes the argument that this three-year suspended sentence was illegal because it was imposed consecutive to another ten-year sentence that was illegal. That argument is irrelevant because it was not ordered revoked after the ten years had run; it was ordered revoked during the five-year term originally imposed.

Queen argues that evidence used against him was obtained in an unlawful search. The police received a call that there had been a shooting and proceeded to the area of the shooting. After inquiry they came upon a vehicle in the yard of a residence. Several people were getting into the vehicle or were standing around it. All had been drinking. According to one officer three people were in the car and Queen was one of those people. The people were “huddled” together. The police officers asked them to get out and found a loaded shotgun in the front floorboard. On the porch of a nearby residence they found three shotgun shells which they seized. According to the testimony the safety was off on the shotgun and the gun was ready to fire. It appeared that the three people in the car were trying to hide the gun. The seizure of these articles did not violate the constitutional prohibition against unreasonable search and seizure. The exclusionary rule, as it is applied in most cases, does not apply to every criminal proceeding. United States v. Winsett, 518 F. 2d 51 (9th Cir. 1975); Harris v. State, 270 Ark. 634, 606 S.W. 2d 93 (Ark. App., 1980). We recently held that it does not apply to a revocation proceeding. Lockett v. State, 271 Ark. 860, 611 S.W. 2d 500 (1981).

The evidence of misconduct consisted of a conviction for driving while intoxicated and carrying a prohibited weapon in January, 1980. A month later Queen was found to be publicly drunk in a car that was driving the wrong way on a one-way street. According to officers this car attempted to elude the officers when they pursued it. There was evidence Queen was again intoxicated and involved in disorderly conduct in the shotgun incident. Ark. Stat. Ann. § 41-1208 (4) (Repl. 1971) provides:

If the court finds by a preponderance of the evidence that the defendant has inexcusably failed to comply with a condition of his suspension or probation, it may revoke the suspension or probation at any time prior to the expiration of the period of suspension or probation.

In Queen’s case, the suspended orders read in part:

1. You must not violate any law, federal, state or local. If arrested or questioned by law enforcement officers you are to report the matter without delay to the Probation Office, Third Floor, County Court House, Fort Smith, Arkansas, in person or by letter, giving full details of the event.
2. You must not associate with persons who have criminal records, or who are known as bad characters.
3. You are to stay out of beer joints or other places or parts of town where the wrong kind of people may be found.

We cannot say the court was clearly wrong in its findings.

The final argument that the trial judge failed to make written findings must fail for want of an objection. Lockett v. State, supra. The judgment is modified.

Affirmed as modified.


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

text:
    CENTURY 21 REAL ESTATE OF NORTHERN TEXAS, INC., et al v. ARKANSAS REAL ESTATE COMMISSION et al
    80-192
    611 S.W. 2d 515
    Supreme Court of Arkansas
    Opinion delivered February 16, 1981

      Smith, Jernigan & Smith, by: George O. Jernigan, Jr., for appellants.

      Steve Clark, Atty. Gen., by: Nelwyn Davis, Asst. Atty. Gen., for appellees.
   John I. Purtle, Justice.

This is an appeal from the Pulaski County Circuit Court upholding the validity of Rule 39(c) of the amended rules and regulations of the Arkansas Real Estate Commission. Among the seven grounds for reversal appellants argue that the Arkansas Real Estate Commission acted beyond its statutory authority in promulgating Rule 39(c). We agree with appellants on this point and therefore find it unnecessary to discuss the other points argued on appeal.

Rule 39(c) attempted to regulate advertising by franchise real estate dealers. The rule adopted required the Arkansas broker’s name to appear equally prominent with that of the franchisor. The only fact necessary to support this opinion is that the Commission attempted to regulate advertising by real estate agents and brokers in Arkansas.

The Arkansas Real Estate Commission is an instrumentality of the legislature and was created and is controlled by the General Assembly as expressed in Ark. Stat. Ann. §71-1301 et seq. (Repl. 1979). We have carefully examined the authority granted to the Commission and are unable to find any authority which would enable them to control advertising by its members. We are not unmindful of the grant to the Commission of authority to do all things necessary and convenient for carrying the act into effect. However, one of the things the Commission was to carry into effect was not regulation of advertising by its members. The facts in this case bear a close resemblance ot those in the case of Gelly v. West, 253 Ark. 373, 486 S.W. 2d 31 (1972). In Geliy we struck down a regulation by the Commission attempting to regulate a real estate examination training school on the grounds the rule was beyond the authority granted to the Commission.

Reversed and remanded for the entry of a declaratory judgment consistent with this opinion.

Hickman and Hays, JJ., concur.

Darrell Hickman, Justice,

concurring. I agree the case should be remanded but for entirely different reasons. In my judgment the Commission failed to substantially comply with several statutory requirements regarding notice. Also, the Commission offered no evidence at all to show why such a rule was needed. It probably assumed, as would anyone familiar with the real estate business, that a regulation regarding franchise real estate operations was needed.

This court has struck down the rule in question because it “controls advertising.” Of course it controls advertising because it is a primary function of the Commission to prevent misrepresentation, false influence, or inducement. This is not a First or Fifth Amendment case, as the majority seems to treat it.

The Arkansas statutes “control” advertising and charge the Commission with the duty to make rules and regulations to enforce those laws. The Commission “... may do all things necessary and convenient for carrying into effect the provisions of this Act and may from time to time promulgate necessary rules and regulations.” Ark. Stat. Ann. § 71-1303.

Ark. Stat. Ann. § 71-1302 provides that a broker is one who advertises, or holds himself out as being engaged in the business of buying, selling...real estate.” [Emphasis added.] A salesman is one who does all the same things a broker does, but is employed by the broker. Every broker shall display a sign bearing his name or the firm name in front of his place of business. Ark. Stat. Ann. § 71-1306(d). Any change in the principal business location must be reported in writing. Ark. Stat. Ann. § 7l-1306(f). A license can be suspended or revoked for any substantial misrepresentation or for any conduct which constitutes improper, fraudulent or dishonest dealing. Ark. Stat. Ann. § 71-1307.

How does the public know who the broker or salesman is? How do other brokers or salesmen know who lists a piece of property? How does the public know where to report a misrepresentation and who should be reported? They know by the signs and advertising. How does the Commission know when a salesman or broker has made an illegal representation? The name is on the advertising materials. It is a custom of the business; it is required in at least one instance. Such a rule violates no state or federal constitutional guarantees. Century 21 Real Estate Corp. v. Nevada Real Estate Advisory Comm., 448 F. Supp. 1234 (D.C. Nev. 1978), aff'd 440 U.S. 941 (1979).

The rule in question simply provides that signs and advertising materials used in connection with a franchise must contain the broker’s name equally prominent with the logo of the franchise. It in no way “controls” or limits advertising. In this case Century 21 is the franchise broker. The majority’s decision means that all Century 21 signs will not have to contain the name of the broker or salesman — anathema to all real estate people.

As I suggested, I think the Commission should have offered proof as to why franchise operations have caused problems in other states and what would be a reasonable regulation regarding their signs. Any rule must be reasonable and not arbitrary and I cannot make that judgment on this record. For that reason and because of notice deficiencies I would remand the case for further proceedings.

Ironically, it will not be the Commission that will bear the brunt of the majority’s decision. It will be the brokers and salesmen who must operate at their peril. Instead of permitting the Commission to regulate in a perfectly legal area, we have forced the Commission to jerk any license for misrepresentation and the misrepresentation will be determined on a case by case basis rather than by rule. Instead of order by rule and regulations we have created a chaotic void. The Commission can no longer require a broker or salesman to put his name on any advertising.

The majority’s reliance on Gelly v. West, 253 Ark. 373, 486 S.W. 2d 31 (1972) is exaggerated. Geliy involved a real estate school, licensed by the State Department of Education which is an agency granted the exclusive right to control such schools.

Hays, J., joins in this concurrence.


author: Steele Hays, Justice.

text:
    Jesse James HUBBARD a/k/a Jimmy HUBBARD v. STATE of Arkansas
    CR 80-186
    611 S.W. 2d 526
    Supreme Court of Arkansas
    Opinion delivered February 16, 1981

      William R. Simpson, Jr., Acting Public Defender, by: Jess Rosensweig, Deputy Public Defender, for appellee.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

The sole issue in these two interlocutory appeals is whether the trial court erred in denying appellant’s motion under Ark. Stat. Ann. § 41-1810.2 (Repl. 1977) to admit allegations of prior sexual conduct by the prosecutrices in the appellant’s trials on two rape charges. The two alleged rapes involve a separate set of facts and separate prosecutrices. From adverse rulings by the court in each cause, the appellant brings this consolidated appeal since the legal issues are identical.

Ark. Stat. Ann. § 41-1810.1 (Repl. 1977) operates as an absolute bar to the admission of allegations of the prosecutrix’s prior sexual conduct. But, § 41-1810.1 notwithstanding, Ark. Stat. Ann. § 41-1810.2 provides for a pretrial hearing in which the defendant to a rape charge may proffer relevant testimony concerning the prosecutrix’s prior sexual conduct and the court may rule such evidence admissible at trial “[i]f, following the hearing, the Court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature . . . .” Ark. Stat. Ann. § 4l-1810.2(b).

Since what is “relevant to a fact in issue” will vary in each case, it is not possible to articulate a firm rule to be applied in all cases. And as this court recently said in Kemp v. State, 270 Ark. 835, 606 S.W. 2d 573 (1980):

Weighing the inflammatory nature of evidence against the probative value lies within the sound discretion of the trial court, and its actions will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion. Kemp, at 839.

Although no rule can be applied categorically to all cases, in making a determination in this case it is necessary to review recent decisions applying Ark. Stat. Ann. §41-1810.2.

In Brown v. State, 264 Ark. 944, 581 S.W. 2d 549 (1979) the defendant raised the defense of consent to the charge of rape. In the § 41-1810.2(b) hearing, the prosecutrix testified that she had previously had sexual relations with the defendant. The defendant testified that the circumstances of the incident were that the prosecutrix had invited him to her apartment and that she had met him at the door dressed only in a nightgown. In Brown, this court said:

The proffered evidence of the prior relationship of the parties as described by the prosecutrix certainly tends to make the appellant’s defense of consent more probable in view of the invitation from the prosecutrix and her mode of dress at the time she let him into her abode. Consequently, we conclude that the trial court erred in excluding the testimony. Brown, at 945.

In Bobo & Forrest v. State, 267 Ark. 1, 589 S.W. 2d 5 (1979), consent was again raised. In the context of that case, it was held: 1) that proffered evidence of the prosecutrix’s prior sexual relations with a third party should not be admitted; 2) that the prosecutrix could, however, be questioned on cross examination as to incidents of sexual activity with the third party which allegedly occurred in close proximity in time and location to the alleged rape; and 3) that the prosecutrix could be questioned on cross examination as to prior sexual relations with the defendants.

In Marion v. State, 267 Ark. 345, 590 S.W. 2d (1979), this court began a new line of cases in which the issue of consent was not raised; but rather the defense was, as here, that the alleged incident of rape simply did not occur. In Marion, the defendant offered evidence that the filing of the rape charge was an act of vindictiveness following a fight between the prosecutrix and the defendant. Testimony was adduced that the prosecutrix had vowed to “get even” with the defendant.

In Marion, this court ruled that the trial court properly excluded evidence of the prosecutrix’s general reputation as a prostitute, and that she had two children born out of wedlock. But we ruled that the prosecutrix could be cross examined concerning prior sexual relations with the defendant:

Certainly upon sufficient proffer as here, the victim’s bias, prejudice or ulterior motive for filing the charge is relevant or germane to the question of whether the alleged act of sexual intercourse actually occurred and the probative value outweighs its inflammatory or prejudicial nature. Marion, at 348.

However, this court also offered a caveat in Marion, quoting from a Wisconsin case:

The offer of proof need not be stated with complete precision or in unnecessary detail, but it should state an evidentiary hypothesis underpinned by a sufficient statement of facts to warrant the conclusion or inference that the trier of fact is urged to adopt . . . [and] it ought to enable a reviewing court to act with reasonable confidence that the evidentiary hypothesis can be sustained and is not merely an enthusiastic advocate’s assumption. Id., at 348.

In the first of the two cases before us, CR 79-2095, the defendant testified that he had dated the prosecutrix and had had frequent sexual relations with her. He testified that he had broken up with the prosecutrix two months before the alleged rape and had not seen her since that time.

The prosecutrix testified that although she had known the defendant for several years she had never dated him, had never had sexual relations with him, and that he had never been to her residence. At the hearing in this matter, defense counsel stated: “We - did not get into why they broke up in February but they did. ... I think it’s going to be up to the jury to determine.” In cases where consent is not an issue, there must be something beyond the mere allegation of prior sexual activity between the prosecutrix and defendant, even if proven true, to make such evidence relevant to the prosecution for rape.

The evidentiary hypothesis being offered by the defense to support the reception of this evidence is not clear. Certainly, we cannot say the trial court has clearly abused its discretion in excluding this evidence. Kemp v. State, above.

In the second case, CR 80-0505, the defense witnesses testified that some days before the alleged rape, the prosecutrix had engaged in sexually suggestive play with the defendant’s nephew. However, as Bobo & Forrest, above, indicates, sexual conduct between the prosecutrix and a third party is not admissible unless it occurred in such close proximity of time and location to the alleged rape that it bears on the issue of consent or other material element of the offense.

Further, the defense alleged that this episode between the defendant’s nephew and the prosecutrix touched off a physical altercation between the prosecutrix and the defendant’s sister, and this was the motivation behind the charge of rape. However, unlike Marion, in the present case there was no testimony that the prosecutrix vowed to “get even,” or in any other way threatened the defendant or his sister. The record is devoid of any evidence that the prosecutrix bore animosity against the defendant from the incident which would support an inference that the charge of rape was purely vindictive.

As in the first instance, we are unable to say that the trial court clearly abused its discretion in excluding the proffered testimony. We therefore must affirm both causes. Kemp v. State, supra.

Affirmed.


author: James R. Cooper, Judge. Lawson Cloninger, Judge,

text:
    Thomas Moore FLETCHER, Jr. v. Margaret McCulloch LONG, et al
    CA 80-452
    611 S.W. 2d 779
    Court of Appeals of Arkansas
    Opinion delivered February 18, 1981

      Shults & Ray, for appellant.

      Sharpe & Moreledge, for appellees.
   James R. Cooper, Judge.

This action was filed by the beneficiaries of the last will and testament of Fletcher Long, Sr., against the executor of the estate of Mrs. Susan Fletcher Matkin, Mr. John D. Eldridge, and her heirs at law, to establish and enforce an oral contract to make a will between Fletcher Long, Sr. and Mrs. Matkin.

On July 10, 1963, Mrs. Matkin deeded approximately 3,200 acres of farmland to her nephews, Dr. Thomas Moore Fletcher, Jr., and Fletcher Long, Sr., subject to her retention of a life estate. This deed was filed for record July 11, 1963. Correspondence between Fletcher Long, Sr. and Dr. Thomas Moore Fletcher, Jr., indicated concern about Mrs. Matkin’s gift tax liability and as a result Fletcher Long, Sr., on August 14, 1963, wrote a letter to John D. Eldridge, attorney for Mrs. Matkin, enclosing a document reconveying his interest in the property to Mrs. Matkin. In that letter he stated that his inducement to reconvey the property was the disclosure to him by Mr. Eldridge of Mrs. Matkin’s intent to make a testamentary disposition of the land in question so that Mr. Long’s interest at her death would be the equivalent of that which he had under the July 10, 1963 deed. Thomas Moore Fletcher also reconveyed his interest in the lands to Mrs. Matkin. On August 22, 1963, Mrs. Matkin executed a formal will devising the lands in question “to (her) nephews, Fletcher Long and Dr. Thomas Moore Fletcher, Jr., and unto their heirs and assigns, in fee simple, share and share alike ...” Fletcher Long, Sr. died June 19, 1969 and Mrs. Matkin died August 1, 1978. In a separate Probate proceeding the Probate Court found that the devise to Mr. Long lapsed into the residuary estate. The Chancellor found that an oral contract had been proved by clear, cogent, and convincing evidence, and directed the executor to perform the contract by conveying an undivided one-half interest in the property in question to the appellees. This appeal results from that ruling.

Appellant urges as error the following points: (1) That the Court erred by finding that plaintiffs proved by clear, cogent, and convincing evidence that Mrs. Matkin contracted to devise an undivided one-half interest in the property to Fletcher Long which would pass to his heirs if he predeceased her; (2) That the Court was in error when it found that the reconveyance by Fletcher Long, Sr. was valid consideration for a contract to make the will because he was under a preexisting legal duty to reconvey the property to Mrs. Matkin; and (3) That the Court erred in finding that the contract to make a will was not fully performed and discharged by Mrs. Matkin’s execution of her will.

Both parties to this action recognize that in order to prove an oral contract to make a will, the evidence must be clear, cogent, and convincing. Apple v. Cooper, 263 Ark. 467, 565 S.W. 2d 436 (1978). The chancellor found that appellees proved that an oral contract was entered into by Fletcher Long, Sr. and Mrs. Matkin whereby she would execute a will devising an estate to him equal to that which he héld under the July 10, 1963 deed. Correspondence between Mr. John D. Eldridge, attorney for and friend of Mrs. Matkin, and Fletcher Long, Sr. was introduced. The letter from Mr. Long to Mr. Eldridge referred to a prior telephone conversation between the parties and Mr. Long confirmed the agreement by letter as follows:

In the telephone conversation between you and me yesterday, you disclosed to me that she had plans to make testamentary disposition of the lands in question in such a manner that my interest at her death would be at least equivalent of that which is now vested to me. It is contemplated that you, as her attorney, will give effect to these plans in a more formal manner by preparing a will at her direction and for her execution within the near future.
As I gave you to understand orally yesterday, the Grantee’s commitment to make the disposition above referred to is the real inducement to my execution of the enclosed instrument.

Another exhibit was a letter from Mr. Eldridge to Dr. Thomas Moore Fletcher, Jr. in which he stated:

. . . Sue (Mrs. Matkin) expressly agrees to execute a will leaving this property to you and Fletcher, share and share alike, in fee simple and I am in the process of preparing a will to accomplish that.
Sue certainly appreciates what you and Fletcher are doing and from your standpoint the outcome will have the same practical effect, but it will enable her to continue to finance the farm operation and will avoid the present impact of gift tax.

The issue in this case is not whether Mrs. Matkin agreed to devise anything to appellees if Fletcher Long, Sr. predeceased her, but what interest she contracted to devise to Fletcher Long, Sr., and, if her will did not perform that contractual obligation, whether the obligation to perform can be imposed on her executor. The estate which Fletcher Long, Sr. had under the July 10, 1963 deed was a fee simple estate (limited only by her life estate) not contingent on survivorship nor subject to lapse, and had Fletcher Long, Sr. not reconveyed his interest in the property to Mrs. Matkin, it is clear that his heirs or devisees would have become the owners of an undivided one-half interest in the subject lands. It seems apparent that the possibility of Fletcher Long, Sr. predeceasing Mrs. Matkin was not discussed or considered by the parties at the time the will was made. Mr; Long intended to receive, by devise, that which he had under the July 10, 1963 deed, and Mrs. Matkin, according to the letter from Mr. Eldridge to Dr. Fletcher, intended to devise the same estate to him that he expected to receive. In chancery cases we review the record de novo, but will not disturb findings of the Court unless clearly erroneous or against a preponderance of the evidence.

We hold that the finding of the trial court that the appellees had proved an oral contract by clear, cogent, ,and convincing evidence was not clearly erroneous or against a preponderance of the evidence.

The appellant also argues that there was no consideration for the contract to make a will. The parties agree that the validity of an oral contract to make a will has been recognized and for this type of contract to be enforced there must be consideration, as in other types of contracts. Appellant argues that the agreement by Mr. Long to reconvey the property was not valid consideration for her agreement to make the testamentary disposition of an undivided one-half interest in the land to him because he was under a preexisting legal obligation to reconvey the property to Mrs. Matkin. Appellant’s basis for that argument is that Fletcher Long, Sr. acted as her attorney in the matter by drafting the warranty deed and the conveyance of the undivided one-half interest to him represented a transaction between an attorney and client. This Court has held that in such cases the burden is on the attorney to show that no advance was taken and that he provided all the information and advice to allow the client to act understanding^. Norfleet v. Stewart, 180 Ark. 161, 20 S.W. 2d 868 (1929).

Appellant’s argument on this point presumes either that Mr. Long would have been totally unable to meet this burden, or that because of the circumstances the original transaction was void, and therefore his reconveyance could not constitute valid consideration. We cannot agree. Although the better practice would have been for another attorney to draft the original deed, Mir. Long gave up valuable rights by reconveying the property. He gave up ownership of an undivided one-half interest in 3,200 acres, and he did so voluntarily, on the strength of an oral agreement to devise the same interest back to him. His reconveyance was valid consideration for the oral contract.

For its third point for reversal, appellant argues that the Court erred by finding that the contract was not fully performed at the time Mrs. Matkin executed her will. Appellant concedes that in other jurisdictions the general rule is that the existence of a will which does not meet the terms of a contract to make a will does not discharge the obligations under the contract. In this case appellant argues that the will was specifically drafted for the purpose of satisfying the contract between Mrs. Matkin and Mr. Long, and that Mr. Long accepted the execution of this will as performance of the contract. Mrs. Matkin contracted to execute a will vesting in Fletcher Long, Sr. the interest he held under the earlier deed. That interest was absolute fee simple ownership of an undivided one-half interest subject to her life estate: The Probate Court has held that the will did not accomplish what Mrs. Matkin contracted to do. The will simply did not do what Mrs. Matkin wished it to do and it did not satisfy the contract between her and Mr. Long.

The chancellor found that the terms and conditions of the contract were proved by clear, cogent and convincing evidence and the contract was based upon an adequate consideration. We cannot say that the findings of the chancellor are clearly erroneous or against a preponderance of the evidence, and therefore we affirm.

Affirmed.

Corbin and Cracraft, JJ., not participating.

Fogleman, Special Judge, joins in this opinion.

Cloninger and Glaze, JJ., dissent.

Lawson Cloninger, Judge,

dissenting. I am not able to concur in the Court’s opinion that there was consideration for a contract to make a will in this case. Fletcher Long was under a pre-existing legal obligation to relinquish his interest in the property of Mrs. Matkin upon her request, and the reconveyance fails as consideration for a contract to make a will.

At the time Mrs. Matkin executed the July 10, 1963, warranty deed, she had discussed the transaction only with Fletcher Long, who acted as her attorney in the matter. Mr. Long prepared the warranty deed and Mrs. Matkin did not discuss the matter with Mr. Eldridge, the attorney who had represented her previously in other matters, or with any other person except Mr. Long. The deed clearly represented a transaction between an attorney and his client, a transaction in which the attorney had a very substantial self-interest. All transactions between attorney and client, to be upheld in a court of equity, must be in the utmost good faith, and the burden is on the attorney to show not only that no advantage was taken, but that he gave his client all the information and advice about the matter which was necessary to enable the client to act understanding^. Norfleet v. Stewart, 180 Ark. 161, 20 S.W. 2d 868 (1929). Equity regards the relation of attorney and client much in the same light as that of guardian and ward, and will relieve a client from hard bargains or from any undue advantage secured over him by his attorney. And the client, in order to secure such relief, is not bound to show that there has been any imposition or fraud, nor is the transaction necessarily void; but if it is a transaction to which the relation between the parties exerted, or might reasonably have exerted, any influence in the attorney’s favor, then the burden of establishing its perfect fairness is thrown upon the attorney. Thweatt v. Freeman, 73 Ark. 575, 84 S.W. 720 (1905).

The heirs of Fletcher Long not only had the burden of proving the terms of the contract to make a will — and those terms included a valid consideration — by clear, cogent, and convincing evidence; they had the burden of showing that Mr. Long gave Mrs. Matkin all the information and advice about the matter which was necessary to enable her to act understandingly. I do not believe they have sustained that burden.

Judge Glaze joins in this dissent.


author: Lawson Cloninger, Judge.

text:
    Barbara Ann BAKER v. BANK OF NORTHEAST ARKANSAS
    CA 80-380
    611 S.W. 2d 783
    Court of Appeals of Arkansas
    Opinion delivered February 18, 1981

      Bill W. Bristow, for appellant.

      Troy Henry, for appellee.
   Lawson Cloninger, Judge.

This is an appeal from a trial court decision that appellant Barbara Ann Baker could not maintain a suit as a third party beneficiary against the appellee Bank of Northeast Arkansas. The trial court found that the appellee bank failed to follow the instructions of appellant’s benefactor, the depositor, in the issuance of a certificate of deposit, but that appellant had no interest in the property and could not recover.

We find that appellant is a third party beneficiary; that, as such, she is entitled to maintain the action; and that she is entitled to damages against appellee on her cross-complaint.

This is the second time this proceeding has been before this Court, the first being styled Carlton v. Baker, 267 Ark. 949, 591 S.W. 2d 696 (1980). The original dispute was between the administrator of the estate of Rebecca C. Self and Barbara Ann Baker, niece of Rebecca Self, about ownership of three $5,000 certificates of deposit at the Bank of Northeast Arkansas. The trial court and this Court found that the certificates were intended by Rebecca Self to pass to Barbara Ann Baker upon Rebecca Selfs death, but this Court reversed the trial court in regard to the disposition of one of the $5,-000 certificates, holding that there was no substantial compliance with the statutory designation-in-writing requirement. The effect of this Court’s opinion was to give Barbara Ann Baker $10,000 in the certificates and to give the administrator the additional $5,000. This Court remanded the case for further proceedings.

This aspect of the case involves the cross-complaint filed in the original action by Barbara Ann Baker against the Bank of Northeast Arkansas. The cross-complaint stated that it was the intention of Rebecca Self for the certificates to pass to Barbara Ann Baker, and it was the fault of the bank that they did not. Barbara Ann Baker asked for a money judgment against the bank in the event she was not found to be the owner of the certificates. Her theory was that she was the beneficiary of a third party contract and that the bank was negligent. No additional testimony or proof was presented upon remand from this Court. The chancellor found that the bank had made mistakes but held that Barbara Ann Baker could not maintain her claim because she had no contractual relationship with the bank. This appeal is from that decision.

The appellee is correct in pointing out that upon a second appeal the judgment of the former appeal becomes the law of the case, and is conclusive of every question of law or fact decided in the former suit, and also those which might have been, but were not, presented. Moore v. Robertson, 244 Ark. 837, 427 S.W. 2d 796 (1968); Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979). In the instant case, however, the appellant did present her theory of third party beneficiary, but its applicability was not ruled upon by this Court. It might have been better if this Court had entered judgment on appellant’s cross-complaint on the first appeal, but we exercised our discretion and remanded the questions of third party beneficiary and damages to the trial court, since the trial court had not considered those issues or ruled upon them. Neither party raised the issue of the law of the case upon remand and the chancellor made the issue of damages moot when he held that appellant was not entitled to maintain the suit.

The chancellor, in making his ruling, commented that, “. . . Mrs. Self here, deposited this money in the bank; and wanted it to go to this Mrs. Baker, survivor here. But still, Mrs. Baker didn’t contribute anything to it . . . There was no contract with Mrs. Baker, with the bank, that she could enforce at all . . .” Later on the chancellor stated that “Mrs. Baker had no right in this account here, unless it was done exactly right. The bank fouled up, there’s no question about it.”

The Arkansas Supreme Court has held that a contract made for the benefit of a third party is actionable by such third party. Lovell v. Mariana Federal Savings and Loan Association,, 264 Ark. 99, 568 S.W. 2d 38 (1978). The appellant is a donee beneficiary as that term is defined in Coley v. English, 235 Ark. 215, 357 S.W. 2d 529 (1961):

He is a ‘donee beneficiary’ if it appears from the terms of the promise in view of accompanying circumstances that the purpose of the promisee in obtaining the promise of all or part of the performance is to make a gift to or confer right of action upon the beneficiary.

The definition in Coley v. English, supra, is in line with the term as it is defined in 17 Am. Jur. 2d, Contracts, § 311:

A person other than the promisee who will be benefited by the performance of the promise is a donee beneficiary where it appears that the purpose of the promisee in obtaining the promise was to make a gift to the beneficiary. In other words, a donee beneficiary is one to whom the promisee intends to make a gift of the performance by the promisor.

It is not necessary that consideration move to the obligor from the third party beneficiary. If there is consideration between the parties, then a standard contract is created. There must be consideration between the obligor and the obligee, but the absence of consideration or contract between the obligor and the third party beneficiary is the fundamental characteristic of a third party beneficiary contract. Rebecca Self supplied consideration to the bank in the form of a $5,000 deposit, and the provision requested by Rebecca Self was for the direct benefit of appellant. The benefit intended to accrue to the appellant grew out of the contract itself, and appellant’s interest was not a mere incident.

We find that appellant has proved a breach on the part of appellees and is entitled to judgment. Under the procedures normally followed by appellee, a certifícate of deposit was prepared with three copies. The original certificate was delivered to the purchaser and the copies were kept for bank use. The procedure called for the purchaser to sign one of the copies in a space prescribed for that purpose; that signed copy served as a receipt for the certificate, and under the ruling of this Court in the first case of Carlton v. Baker, supra, satisfied the designation-in-writing requirement of Ark. Stat. Ann. § 67-552 (1966 Repl.). Two of the receipts for the certificates purchased by Rebecca Self bore no signature, and because of this failure, the certificate was declared by this Court to be the property of the estate of Rebecca Self and not of Barbara Ann Baker.

There was ample testimony to show that Rebecca Self intended that the three certificates were to pass to Barbara Ann Baker upon Mrs. Selfs death, and that Mrs. Self effectively conveyed that intention to appellee. All three certificates were issued in the name of Rebecca Self or Barbara Ann Baker, either or the survivor of either. The loss to appellant arose because of the failure of appellee to follow its own procedures.

The appellee is not required, or permitted, to give legal advice to its customers, but it does hold out to the public that money can be deposited and passed on in the way Rebecca Self attempted. The position of appellee is similar to that of the appellee in Lovell v. Marianna Federal Savings and Loan Association, supra, with the qualification that in the present case there is no hint of fraud on the part of any of the participants.

The judgment of the trial court is reversed and the cause remanded with directions to enter judgment for appellant on her cross-complaint.

Fogleman, Special Judge, joins in this opinion.

Corbin, J., not participating.