author: David Newbern, Judge.

text:
    Elbert HENDRIX v. REPUBLIC NATIONAL LIFE INSURANCE CO.
    CA 80-245
    606 S.W. 2d 601
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980

      Bradley & Coleman, by: Douglas Bradley, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   David Newbern, Judge.

The question is whether an insurer may deny insurance benefits to an employee whose employer, by failure to pay group policy premiums, has allowed the policy to lapse, even though the employee’s contribution to the premium has been deducted from his pay by the employer. We hold that, despite the employee’s payments, the lapse of the policy prevents the employee from recovering medical expenses of his dependent which would have been covered but for the lapse.

The appellant was employed by Sales and Services, Inc., which, had a group health insurance policy with the appellee. In March and April of 1978, Sales and Services, Inc., sent checks to the appellee as payment of the group insurance premiums for those months. The checks were returned because of insufficient funds in the employer’s account. On May 10, 1978, the appellee sent to Sales and Services, Inc., a letter which called attention to the insufficiency problem and advised that the amount owed would be “charged back to (the Sales and Service company’s) insurance billing.” The letter also requested a replacement check. Apparently no replacement check was forthcoming, and a lapse notice was sent on June 5, 1978, by the appellee to Sales and Services, Inc., stating that the policy had lapsed as of March 31, 1978. No notice of the lapse was given to the employees of Sales and Services.

On May 7, 1978, the wife of the appellant, who would have been covered as a “dependent” by the policy, entered the hospital with a bladder ailment and incurred medical expenses amounting to $1,561.00. That amount was claimed under the policy, and the claim was rejected.

The court heard the matter without a jury and decided that the policy had lapsed, in accordance with its terms, for nonpayment of the premium, and that the lapse was effected March 31, 1978. The court further found specifically that the attempts by the appellee to recover the unpaid premiums represented by the insufficient checks were not inconsistent with the lapse provision of the policy and “did not operate as an extension of credit to the employer.” The appellant contends that this amounted to an improper holding that the lapse notice was “retroactive.”

The appellant’s contention has two parts. First, we should decide whether the employer is an agent of the insurance company for the purpose of receiving premium payments from the employee. If that is the case, then the failure of the employer to forward the payments to the appellee will not result in a loss of coverage to the appellant. The second part of the appellant’s argument has to do with whether, by pursuing the payment represented by the insufficient checks, the appellee waived its right to assert later that the policy had theretofore lapsed.

1. The agency problem.

The appellant cites Neider v. Continental Ins. Co., 35 So. 2d 237 (La. 1948), for the proposition that an employer is the agent of the insurer to the extent it is the employer’s responsibility to keep the group policy in effect. The facts of that case, however, make it less supportive of the appellant’s argument than All States Life Ins. Co. v. Tillman, 226 Ala. 245, 146 So. 393 (1933), which specifically holds that an employer is the agent of the insurance company for the purpose of collecting and forwarding monthly premiums payments and that the process by which such payments are deducted from the employee’s pay “is payment to the insurer so far as such employee is concerned.” (146 So. at 393). Some jurisdictions have reached the same result on the basis of statutes making the employer the agent of the insurer in these circumstances. See, e.g., Shanks v. Travelers Ins. Co., 25 F. Supp. 740 (D.C. Okla, 1938); and General American Life Ins. Co. v. Gant, 119 S.W. 2d 693 (Tex. Civ. App. 1938).

Still other jurisdictions have held, just as specifically, that the employer is not the agent of the insurance company in these circumstances. For example, in the most recent case of which we know dealing with the problem, the Supreme Court of North Carolina held that where an employer had deducted the premium payment from employee’s wages, but issued a check to the insurer which was returned for insufficiency, the group policy terminated at the expiration of a grace period. Thus, the employee could not recover expenses which would otherwise have been paid had the policy been in effect when the expenses were incurred. In that case, as here, the employer had continued to deduct the premiums from the employee’s wages during the crucial period, and no notice had been given to the employee that the employer had defaulted in payments of premiums due to the insurer. Boger v. Prudential Ins. Co., 259 N.C. 125, 130 S.E. 2d 64 (1963). See also, Boseman v. Connecticut General Life Ins. Co., 301 U.S. 196, 57 S. Ct. 686 (1937) and First National Bank of LaMarque v. Smith, 436 F. Supp. 824 (S.D. Tex, 1977).

If this case were one in which we felt we were free to choose whether the employer should be regarded as either the agent of the employee or of the insurer, our temptation would be to say we like the Alabama court’s decision in view of the usual position of the employee which is one of lack of notice of the employer’s default. We might even find, were we at liberty to do so, some equitable duty on the part of the insurer to notify employees participating in the group policy when there is such a lapse resulting from the employer’s failure to pay. Given two such lines of cases and no relevant Arkansas cases, we might also be very much tempted to certify this case to the Arkansas Supreme Court pursuant to rule 29(4)b. However, although there is no Arkansas case directly on point, we find sufficient guidance from our supreme court’s decisions which touch on the problem.

In Neely v. Sun Life Ins. Co. of Canada, 203 Ark. 902, 159 S.W. 2d 722 (1942), our supreme court said a group policy is a third party beneficiary contract even though the employee pays a part of the premium. In Aetna Life Ins. Co. v. Carroll, 188 Ark. 154, 65 S.W. 2d 25 (1934), our supreme court held that the grace period during which a group policy remains in effect, despite failure to pay the premium, is available to the employer but not to the employee because the contract is between the employer and the insurer and not between the employee and the insurer. In that case the question was whether coverage extended beyond the period of employment. The court held that, in accordance with the terms of the policy, it did not, and thus the life insurance provided under the policy did not extend beyond the termination of employment. There the supreme court made it clear that it might have applied the policy’s grace period had the insurance contract been between the insurer and the employee, but it was held that the contract was between the employer and the insurance company. These Arkansas cases were cited and applied in Hanna v. Mt. Vernon Life Ins. Co. of New York, 260 F. 2d 244 (8th Cir., 1958). There the United States Court of Appeals held that an insurance company had the right to rely upon the failure of the employer to include premiums in its payments to the insurance company for a specific employee and the failure to include the employee’s name on a list provided to the company of those employees participating in the group, and that, therefore, even though premiums had been deducted from the pay of the employee in question by the employer, the employee was not covered.

We hold that because Arkansas law contemplates that a group insurance policy is a contract between the employer and the insurer and not a contract between the employee and the insurer, the employer is not to be regarded as the agent of the insurer for the purpose of collecting insurance premiums from the employee. Therefore, it was not clearly erroneous for the trial court to hold that the policy lapsed before the claim for benefits accrued, and that thus there was no coverage. A.R. Civ. P. 52.

2. Waiver.

In Nat’l Investors Life Ins. Co. v. Tudor, 264 Ark. 361, 571 S.W. 2d 585 (1978), our supreme court held that a forfeiture of a life insurance policy was waived by the insurer because it had not notified the insured of the forfeiture until after the grace period had expired. That was not a group insurance case but involved a direct contract between the insured and the insurer. There, the insurance company had in fact received the premium, but the check for the premium had not been credited to the insured’s account because the check was signed by a third party (a representative of the insured’s business), and it did not have the name of the insured on it and did not refer to the policy number. Not until after the death of the insured did the insurer refund the money which had been intended as the premium payment and which had been retained by the insurer in an unassigned account. The supreme court said that because no notice was given to the insured that the premium check received was being so held and because the insured had reason to believe the company had accepted the check in payment of premiums due, the forfeiture had been waived. That case is to be distinguished from this one in that no money was ever received by the insurer here for the premiums in question. An additional distinction arises from the fact that in the Tudor case the designated beneficiary of the life insurance policy had informed a representative of the insurance company that the check had been mailed, and the company representative said she would look into the matter. Here, although the employee had ho notice from the insurer of the forfeiture or lapse, there was no communication from the insurer which might have tended to lead the employee into thinking his coverage was in effect in spite of the employer’s failure to pay the premium. As we said above, we find the contractual relationship here imposed no such duty upon the insurer with respect to the employee.

Our supreme court had made it clear that the question whether there has been a waiver of forfeiture by the insurer based upon an attempt to collect on the insufficient premium check was not inconsistent with the notice of policy lapse, and thus no waiver occurred. We have no basis for saying that conclusion was clearly erroneous. A.R. Civ. P. 52.

Conclusion.

The appellee contends that any culpability in these circumstances must be assigned to the employer, citing Hanaieff v. Equitable Life Assurance Society of the United States, 92 A2d 202 (Pa. 1952). While it is not our duty to agree or disagree with that comment, we find we must concur that the insurance company, under the law of this state, may not be held responsible under either the asserted contract theory or the waiver theory for coverage in this case.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Harvey HAM v. Charles DANIELS, Director of Labor, and CAPITAL TYPEWRITER
    E 80-48
    606 S.W. 2d 604
    Court of Appeals of Arkansas
    Opinion on Rehearing delivered October 29, 1980
    Appellant, pro se.

      Herm Northcutt, for appellees.
   David Newbern, Judge.

We granted a rehearing in this case because the appellant called to our attention correspondence in the record by which persons who had been described by his employer at the hearing before the appeals tribunal as being dissatisfied with services rendered to them by the appellant had denied being dissatisfied. Of course, the letters became part of the record after the hearing and before the board of review dealt with the matter. Because of the abbreviated nature of the board of review opinion, we are unable to tell the extent to which the letters were considered by the board of review.

A careful reexamination of the entire record, however, convinces us that even had the board of review given the letters in question the fullest consideration to which they were entitled, there was substantial evidence, consisting of the testimony of the appellant’s employer to sustain the board’s affirmance.

The employer testified the appellant had been at least indifferent to his duties and had stated it really did not matter that he mixed up typewriter deliveries. That testimony shows actions by the employee which were not in his employer’s best interest. It was supportive of the finding the employee was disqualified from benefits, having been discharged for misconduct. Ark. Stat. Ann. § 81-1106(b)(1) (Repl. 1976). Having found substantial evidence in support of the board’s decision, we must affirm. Terry Dairy Products, Inc. v. Cash, 224 Ark. 576, 275 S.W. 2d 12 (1944); Deatherage v. Charles L. Daniels, et al., 267 Ark. 683 590 S.W. 2d 62 (Ark. App. 1979).

Affirmed.

Chief Judge Wright and Judge Hays and Howard dissent.

      Originally affirmed without opinion pursuant to Supreme Court Rule 21 (2) on September 10, 1980.


text:
    Allan RHOADES and David EMMERLING v. STATE of Arkansas
    CA CR 80-31
    607 S.W. 2d 76
    Court of Appeals of Arkansas
    Opinion delivered October 29, 1980
    Rehearing denied December 3, 1980

      R, David Lewis, for appellants.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   David Newbern, Judge.

The main question presented is whether the trial court erred in admitting into evidence marijuana seized at the time the appellants were arrested. That issue centers upon the decision in Lewis v. United States, 385 U.S. 206, 87 S. Ct. 424 (1966), and the problem presented when an undercover police agent obtains entry into a suspect’s home by ruse, and the entry results in the seizure of contraband. The state has asked us to extend the rationale of the Lewis case. There, an arrest occurred as a result of analysis of contraband which was pursued and carried away by an undercover police agent who had gained entry by deception. Here, a “seizure” occurred on the premises to which entry had been obtained by deception. We agree the Lewis rationale may be so extended, and thus we affirm. The appellants have raised other points which will also be discussed.

With the assistance of undercover police officer Sylvester, the appellants assembled a large quantity of marijuana at the mobile home of the appellant Rhoades and his spouse. The reason it was brought there was so that it might be purchased by Sylvester who was posing as a “big money man” who wanted to purchase a large quantity of marijuana. Sylvester had been introduced to Mr. and Mrs. Rhoades by a police informant who had worked with Michigan authorities and who had informed Arkansas officials that a large quantity of marijuana could be purchased from the Rhoades. Sylvester had rejected the first offer of marijuana by the Rhoades because it was of insufficient quality. This led them to seek more and better marijuana from appellant Emmerling’s home at Fairfield Bay and from another source in Texarkana. Sylvester ultimately helped place the assembled marijuana in some 24 bags in the Rhoades’ home. On the pretext of leaving to obtain the purchase money from his car, Sylvester moved his car to the front door of the Rhoades’ home and raised the trunk lid, thus signaling an assembled surveillance team of officers to approach the home. Sylvester then entered again and announced he was a police officer and that the appellants were under arrest for possession of marijuana. No warrant for the arrest or search or seizure had been issued.

1. Warrantless seizure.

In Lewis v. United States, supra, the undercover police officer, as in this case, had been invited into the defendants’ home for the purpose of purchasing narcotics, and the defendants contended the intrusion violated the Fourth Amendment to the United States Constitution. There, no warrant had been issued as in this case, but there is an important factual distinction between the cases. In Lewis, no contraband was seized. Rather, marijuana was purchased by the undercover police officer and taken away from defendants’ home. The arrest occurred later.

The contention of the defendant in the Lewis case was that the entry upon his premises was obtained by fraud and that thus the marijuana removed from his premises should not have been introduced into evidence. The United States Supreme Court rejected that contention and stated:

Without question, the home is accorded the full range of Fourth Amendment protections. See Amos v. United States, 255 U.S. 313 (1921); Harris v. United States, 331 U.S. 145, 151, n.15 (1947). But when, as here, the home is converted into a commercial center to which outsiders are invited for purposes of transacting unlawful business, that business is entitled to no greater sanctity than if it were carried on in a store, a garage, a car, or on the street. A government agent, in the same manner as a private person, may accept an invitation to do business and may enter upon the premises for the very purposes contemplated by the occupant. [385 U.S. at pg. 211]

Thus, under the facts of the Lewis case the protection of the Fourth Amendment was held to have "been forfeited by the defendant.

Certainly the principle behind the Lewis decision is broad enough to apply here. We have found it thus applied in one other jurisdiction. In the case of Patterson v. People, 451 P. 2d 445 (Colo. 1969), there was a seizure of stolen goods by an undercover sheriffs officer who was present in the home of the defendant under the guise of being a prospective purchaser of the stolen goods. The Colorado Supreme Court cited the Lewis case and the language quoted above for the proposition that “when one opens his home to the transaction of business and invites another to come in and trade with him,” he loses his right to privacy which would otherwise be protected by the Fourth Amendment. See also, People v. Henry, 482 P. 2d 357 (Colo. 1971).

With respect to this point, the appellants have cited a number of other cases dealing with search and seizure. For example, they have cited Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022 (1971), and its progeny for the proposition that a warrantless search may not be conducted absent exigent circumstances, and for the proposition that the “plain view doctrine” does not apply in a case such as this one. They have also cited Trupiano v. United States, 334 U.S. 699, 68 S. Ct. 1229 (1948), for the point that an arrest incident to which evidence theretofore known to be present at the place of arrest does not authorize a warrantless search and seizure, and the most recent Payton v. New York, 63 L. Ed. 2d 639 (1980), which dealt with a warrantless entrance into a suspect’s home to make a routine felony arrest absent exigent circumstances. We understand the point the appellants seek to make with these citations, and we understand and share the reluctance of the United States Supreme Court to permit searches and seizures in violation of the privacies guaranteed by the Fourth Amendment. It is enough, however, to say here that none of the cases involved the exception created by the Lewis case which was based upon an invited entrance for the purpose of a transaction involving contraband, and thus a waiver of Fourth Amendment rights.

We hasten to point out that we do not believe the United States Supreme Court intended in the Lewis case to condone just any action which might be taken by law enforcement officials who gain entry by deceit for the purpose of conducting a contraband transaction. Their actions must be reasonable under the circumstances. The opinion in the Lewis case states at least one limitation, i.e., that an invited entry does not authorize “a general search for incriminating material.” (385 U.S. at 211). We can readily imagine many other limitations, and thus we emphasize each case involving the, extension of the Lewis doctrine, as by the Colorado Court and here, must depend upon the facts showing reasonableness or unreasonableness of the activities of the police.

2. Entrapment.

For the proposition that the appellants have been entrapped, they cite United States v. Twigg, 588 F. 2d 373 (3rd Cir. 1978), and United States v. Hastings, 447 F. Supp. 534 (E.D. Ark. 1977). The Twigg case is inapplicable because there it was clear that government authorities supplied the suspect the most difficult ingredient to obtain for the manufacture of an illegal drug as well as a large percentage of necessary laboratory equipment, and they even supplied the place in which the laboratory was set up. The conduct of the police was labeled “outrageous” by the court. The same label was applied in the Hastings case where a government informant actually stole an item for the purpose of selling it to the defendants who were then chairged with purchasing stolen property. In the case before us there has been no such “outrageous” conduct. Rather, this seems to have been a routine undercover operation. The initial inducement to commit the offense charged did not come from government authorities. It is obvious the appellants were well predisposed to obtain and sell marijuana to the officer. Merely affording one an opportunity to do that which he is otherwise ready, willing and able to do is not entrapment. Spears v. State, 264 Ark. 83, 568 S.W. 2d 492 (1978).

3. Evidence obtained by fraud and deceit.

This point is closely related to the first two. Here the appellants contend their motion to suppress the evidence obtained by fraud and deceit should have been granted. The appellants’ basic citation is Gouled v. United States, 255 U.S. 298, 41 S. Ct. 261 (1921). That case was distinguished by the Supreme Court in the Lewis opinion because it involved not only entry by deceit, but a subsequent ransacking of the premises for the purpose of obtaining a particular piece of evidence. Equally distinguishable is the appellants’ citation of Barnato v. State, 88 Nev. 508, 501 P. 2d 643 (1972), in which the opinion dealt with officers who entered premises for an announced purpose completely unrelated to searching for marijuana but then surreptitiously took a leaf, which turned out to be marijuana, without the knowledge or consent of the suspect. Neither of those cases involved an invited entry for the purpose of conducting a transaction involving contraband which was ultimately seized.

The appellants also cite United States v. J. B. Kramer Grocery Co., 294 F. Supp. 65 (E.D. Ark. 1969)- There, an officer obtained entry by misrepresentation which was also coercive in that he stated to the suspect that he had a right to inspect the premises without a warrant. Also cited are White v. State, 261 Ark. 23-D, 545 S.W. 2d 641 (1977), where a consent to search was found negated by the suspect’s drunkenness and Gibbs v. State, 259 Ark. 997, 504 S.W. 2d 719 (1974), in which our supreme court dealt with a seizure of allegedly obscene material absent a prior hearing to determine whether it was or was not obscene. In the course of the Gibbs opinion, the supreme court referred to the state’s contention that the seizure was consensual and said that contention lacked merit because the suspect on the premises did not know that the persons who came in and asked to see the movies in question were police officers.

Neither the White case nor the Gibbs case involved a taking of such obvious contraband as the marijuana in this case. In Gibbs, the opinion does not say how the result would have differed had the suspect known the officers were policemen. That factor was not crucial to the result in that case where the real issue concerned “prior restraint” and the First Amendment requirement of a hearing before seizure to determine if the matter in question is obscene.

4. Entrapment burden of proof.

The appellants cite several cases holding that the burden of proof should be upon the government to show lack of entrapment. The cases cited, however, deal with that burden as it is assigned in the federal courts. In this jurisdiction, entrapment is an affirmative defense, and the court was correct in instructing the jury that the appellants had the burden of proof on this issue. See, Ark. Stat. Ann., § 41-209(1) (Repl. 1977), and Ark. Stat. Ann., § 41-110(4) (Repl. 1977), and Spears v. State, supra.

5. Sentencing instruction.

The appellants argue they were entitled to an instruction to the effect that the jury could find them guilty and give them no fine or imprisonment. The argument is that because Ark. Stat. Ann., § 41-803(3) (Repl. 1977), states that a defendant convicted of other than capital murder may be sentenced to a term of imprisonment, a fine or both, and because the fine for a class C felony, in accordance with Ark. Stat. Ann., § 41-1101(l)(b) (Repl. 1977), is “not more than $10,000,” the jury could have chosen the fine alternative and rendered a fine of zero dollars. While we applaud the appellants’ counsel’s originality displayed in this argument, we agree with the appellee that the court, and not the jury, has the power to suspend imposition of sentence. See Ark. Stat. Ann., § 41-803(4) (Repl. 1977). We agree with the appellee that it was correct for the court to refuse to give an instruction which would have had the effect of permitting the jury to do that which is reserved for the court.

6. The amount of marijuana possessed.

The appellants’ final argument is that because the expert who testified at the trial tested less than an ounce of marijuana taken from that which was seized, there was no evidence they possessed more than an ounce, and thus the evidence was insufficient to convict them of possession of more than one ounce of marijuana. The testimony in question came from the appellee’s expert who said he took a sampie from each of the 24 bags which had been seized. The net weight of the substance seized was 99 pounds.

Each of the 24 samples weighed approximately one gram. The amount tested was thus less than one ounce, the testimony of the expert was that in his opinion each of the bags contained marijuana. To say that there was no evidence that more than an ounce of marijuana was present would require us to assume the expert, in taking a “sample” from each bag was somehow able to obtain virtually all of the marijuana in each and that the remainder of the 99 pounds was some other substance. Such an assumption would be, to say the least, unreasonable.

Affirmed.


author: George Rose Smith, Justice.

text:
    Kenneth TURNER v. STATE of Arkansas
    CR 80-128
    606 S.W. 2d 762
    Supreme Court of Arkansas
    Opinion delivered November 3, 1980

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

      Steve Clark, Atty. Gen., by:Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

Kenneth Turner, age 15, was convicted of robbery after a bench trial and was sentenced to the maximum confinement of 20 years. Two of his points for reversal must be discussed.

First, we find no merit in his contention that the charge of robbery should have been reduced to theft of property. On the morning of December 23, 1979, Edna Baker, whose vision was so poor as to amount to legal blindness, and her husband, who also had impaired vision and was crippled and using crutches, were walking slowly to a grocery store to buy a few items to complete a Christmas basket for an underprivileged family. Kenneth, who was identified by eyewitnesses, and two other boys dashed across the street to the couple. Kenneth blocked Mrs. Baker’s progress by wedging her shopping basket and demanded her money. When she said she had no money “he jumped at me like a wild animal and said, ‘Give me that God damn money.’” She replied, “I will give you my money,” and took her billfold from her pocket. Kenneth grabbed her wrist, causing her to release her hold on the billfold, and “just waved” the billfold away. It contained fifteen dollars. He also snatched her rain bonnet out of her pocket, and a second boy grabbed her husband’s tobacco can from his hip pocket.

Under the statute a person commits robbery if with the purpose of committing a theft he employs or threatens to employ physical force upon another. Ark. Stat. Ann. § 41-2103 (Repl. 1977). Physical force means any bodily impact, restraint, or confinement, or the threat thereof. § 41-2101. The trial judge could find from the evidence that the defendant restrained the Bakers by obstructing their path and employed physical force upon Mrs. Baker by seizing her wrist with sufficient force to compel her to release the billfold. In view of the near helplessness of the couple, the force exerted was sufficient to accomplish its purpose and amounted to robbery.

Second, the appellant asserts error in the court’s refusal to postpone the imposition of sentence, as requested, in accordance with the Youthful Offender Alternative Service Act of 1975. Ark. Stat. Ann. §§ 43-2339 et seq. (Repl. 1977). That act provides that the court, in sentencing specified youthful offenders, may impose certain alternative punishments instead of sending the youth to the penitentiary. The trial judge has discretionary authority under the act in two pertinent respects: One, the offender is eligible for sentencing under the act if “in the opinion of the sentencing trial court” his interests and those of the State would best be served by resort to the act. Two, if it appears to the trial court that the defendant “may be an eligible offender,” the court shall postpone the imposition of sentence for not more than 30 days to allow the submission of written reports with regard to the eligibility of the offender for sentencing under the act.

Here it cannot be said that the trial judge exercised his discretion. At the end of the trial the judge sentenced Kenneth to imprisonment for 20 years. When defense counsel asked that the case be passed for 30 days for a presentence report, the prosecutor started to object, saying that for one thing the defendant had an extensive record. The judge ended the matter, as far as the transcript shows, by saying:, “I.am not interested in his record one way or the other, I have heard all I need to hear.” A discussion in chambers followed, but it was not reported and is not before us.

It is evident that the court reached an arbitrary conclusion based only upon the testimony about what was unquestionably a reprehensible crime. The court was evidently not concerned about the possibility that the 15-year-old defendant might be a fit subject for rehabilitation, because the court was not interested in his record “one way or the other.” We do not, of course, disturb the trial court’s exercise of discretion unless it is abused, but the statute does contemplate that discretion will actually be exercised. We cannot sustain the sentence until that step has been taken.

Affirmed as to the conviction for robbery; reversed and remanded for reconsideration of the sentence.


author: Frank Holt, Justice. John A. Fogleman, Chief Justice,

text:
    William N. CATE v. STATE of Arkansas
    CR 80-159
    606 S.W. 2d 764
    Supreme Court of Arkansas
    Opinion delivered November 3, 1980

      Howard & Howard, by: William B. Howard, for petitioner.

      Steve Clark, Atty. Gen., by: Jack Dickerson, Asst. Atty. Gen., for respondent.
   Frank Holt, Justice.

Appellant was charged with criminal mischief in the first degree, the destruction of property for the purpose of collecting insurance. Ark. Stat. Ann. § 41-1906 (1) (b) (Repl. 1977). He was also charged with conspiracy to commit criminal mischief. Ark. Stat. Ann. § 41-707 (Repl. 1977). The court instructed the jury that it could only find him guilty of one offense. Ark. Stat. Ann. § 41-105 (Repl. 1977). The jury acquitted him of criminal mischief and convicted him of the conspiracy charge, assessing a fine of $10,-000. The court of appeals affirmed. Cate v. State, not designated for publication. We granted certiorari. For reversal appellant contends that the court erred in denying his motion for a directed verdict of acquittal and his motion to set aside the verdict because there was no evidence of the crime of conspiracy and none that linked him to the crime other than the testimony of the accomplices.

The charges stemmed from the destruction of a helicopter owned by Arkansas Aero, a company in which appellant was the majority stockholder. The testimony at trial linking appellant to the helicopter destruction was that of four witnesses. Edd Conn, a codefendant and an employee of Arkansas Aero, testified he was approached by appellant about destroying the helicopter to collect insurance on it inasmuch as the company was in financial difficulty. Conn in turn talked to Ken Doles, a flight instructor at Arkansas Aero, who agreed to destroy the helicopter for $2,000. Appellant agreed to the payment. Doles first attempted to destroy the helicopter by landing it at night on a levee and then causing it to turn over. Conn drove to the scene and assisted. When this failed they went in search of gasoline for the purpose of setting it afire. Because of the late hour, they found no public source. They drove to Conn’s house, where he lived with Patricia Miller, who is one of the four witnesses. Appellant was there. Conn asked him if he still wanted the helicopter burned, and appellant responded that he did. At Conn’s request, Mrs. Miller went to their garage to look for a gas can but could not find one. Conn and Doles, who was waiting in the car, then went to Doles’ house where they obtained a five-gallon can of gasoline. They returned to the helicopter and set fire to it. They reported the destruction as an accident. Doles testified pursuant to a grant of immunity. He readily admitted his participation as detailed by Conn.

Robert Holloway, another employee, testified that he was in the process of buying ten percent ownership of Arkansas Aero at the time of the incident. He first was told that the destruction was an accident. However, Conn informed him two or three days after the fire that he had deliberately burned the helicopter. A few days later Conn told Holloway of Doles’ involvement. When Holloway approached appellant about it, appellant told him he did not want to talk about it and that Holloway should forget it. Appellant later asked him to get $2,000 by saving cash out of payments made on accounts, because appellant did not want to write a check for the amount. Appellant told him to put the money in an envelope and put it on Conn’s desk. Holloway did not think that was a good idea. Appellant agreed because Doles did not know that Holloway knew of Doles’ involvement in the matter. Holloway gave the money to appellant. Although he did not know what was done with it, he admitted he knew what the money was for. He had reported the loss of the helicopter to the insurance company before he had knowledge of the purposeful destruction. After that knowledge he transferred the pay-off money to appellant and notarized the proof of loss statement based upon which $81,000 was paid to a bank to apply on Arkansas Aero’s indebtedness.

At the conclusion of the evidence, the court instructed the jury that Conn and Doles were accomplices as a matter of law. As to Mrs. Miller and Holloway, the court instructed the jury that it should be determine from all the evidence whether they were also accomplices within the meaning of the law. The instruction defined an accomplice and then advised the jury that appellant could not be convicted upon the uncorroborated testimony of an accomplice on either charge, but that there must be other evidence tending to connect the defendant with the commission of the crime. In the next instruction, however, the trial judge omitted Holloway’s name:

If you find that the witness, Patricia Miller, was an accomplice within the meaning of that term as defined to you in these instructions, it will be your duty to acquit the defendant.

If Holloway and Miller were accomplices as a matter of law, as contended by appellant, then he is correct that the conviction cannot stand. Ark. Stat. Ann. § 43-2116 (Repl. 1977) provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof

Ark. Stat. Ann. § 41-303 (1) (b) (Repl. 1977) defines accomplice in pertinent part:

A person is an accomplice of another person in the commission of an offense if, with the purpose of promoting or facilitating the commission of an offense, he: . . .
aids, agrees to aid, or attempts to aid the other person in planning or committing it; or

Appellant relies on Mrs. Miller’s admissions to conclusively establish that she was an accomplice as a matter of law. On cross-examination, she testified that she was Conn’s common-law wife; on the night the helicopter was destroyed, she overheard the discussion in their house about burning the helicopter; at Conn’s request, she attempted to find a gas can, knowing that it would be used by Conn and Doles for the purpose of destroying the helicopter and collecting insurance. On recess she answered affirmatively that she recognized that Conn was a part of the scheme by contacting Doles for the purpose of committing the criminal endeavor; however, she had previously “begged Edd [Conn] not to get involved in any way.” On redirect she testified that Conn had assured her that he was “just a go-between between” appellant and Doles, and he would have nothing to do with the “actual crime,” the destruction of the helicopter.

The defendant in a criminal case has the burden of proof that a witness is an accomplice whose testimony must therefore be corroborated. McIntosh v. State, 262 Ark. 7, 552 S.W. 2d 649 (1977); Hewell v. State, 261 Ark. 762, 552 S.W. 2d 213 (1977); and Froman & Sanders v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960). Whether a witness is an accomplice is usually a mixed question of fact and law, and the finding of a jury as to whether a witness is an accomplice is binding unless the evidence shows conclusively, that the witness was an accomplice. Wilson & Dancy v. State, 261 Ark. 820, 552 S.W. 2d 223 (1977).

The crime of conspiracy exists when one, for “the purpose of promoting or facilitating the commission” of a criminal offense, agrees with another person or persons that he will engage or aid in committing the offense coupled with an overt act pursuant to the conspiracy. § 41-707. The quoted language is also found in the definition of an accomplice § 41-303, supra. Therefore, the following commentary to § 41-707 is enlightening:

It should also be observed that to fall within the scope of § 41-707 one must have ‘the purpose of promoting or facilitating the commission of any criminal offense.’ This phrasing serves to exclude from the provision’s application persons who engage in conduct that furthers the ends of a conspiracy, but who have no purpose to do so. This is so even if the person knows his conduct assists in the accomplishment of criminal objectives. . .

Here, Mrs. Miller, the common-law wife of Conn, had lived with him for 11 years and has a child by him. It is true that she responded on cross and recross examination that she had knowledge of the intended criminal offense, and, at Conn’s request, she attempted to find a gas can at their house knowing of its intended use and his participation. However, she had begged him not to become involved and had been assured by him that he would have nothing to do with the actual destruction of the helicopter. We hold, in the circumstances, that she was not an accomplice as a matter of law. Her complicity was a fact issue. The jury could reasonably infer that her unsuccessful effort to find a gas can, with the knowledge of its intended use, was not made with the true purpose of aiding in the accomplishment of the criminal endeavor. Therefore, even if Holloway was an accomplice, as a matter of law, which we need not decide, Mrs. Miller’s testimony was sufficiently substantial to support the verdict.

Affirmed.

Fogleman, C.J., and Purtie, J., concur.

John A. Fogleman, Chief Justice,

concurring. I concur because I believe that this record discloses that Patricia Miller was an accomplice as a matter of law but that Robert Holloway was not, even if he was an accomplice at all. I do not see how it can be said that Patricia Miller did not attempt to aid in the commission of the offense with which the petitioner was charged. It does not matter what motivated her to do so, she knowingly attempted to aid. On the other hand, Holloway studiously avoided any assistance in the commission of the crime. It must be remembered that the crime charged was criminal conspiracy to commit criminal mischief. The crime of criminal mischief was complete when the plane was damaged or destroyed. Holloway had absolutely nothing to do with that offense. Collection of the insurance proceeds was not an element of the offense of which Cate was charged, so Holloway could not be an accomplice under Ark. Stat. Ann. § 41-303 (2) (Repl. 1977). He was not an accomplice under § 41-303 (1) because he did nothing to promote or facilitate either the criminal mischief or the conspiracy to commit it.

Because Holloway was not an accomplice, I would affirm the decision of the Court of Appeals.

I am authorized to state that Mr. Justice Purtie joins in this opinion.


author: Darrell Hickman, Justice.

text:
    John Wesley HOOVER v. STATE of Arkansas
    CR 79-226
    606 S.W. 2d 749
    Supreme Court of Arkansas
    Opinion delivered November 3, 1980

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

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

John Wesley Hoover was convicted of obtaining money by false pretense and sentenced to twenty years imprisonment. His conviction was affirmed in Hoover v. State, 262 Ark. 856, 562 S.W. 2d 55 (1978). On April 23, 1979, we granted Hoover’s motion for post-conviction relief under Rules of Crim. Proc., Rule 37. That relief was limited to allegations of ineffective assistance of trial and appellate counsel and perjury.

A lengthy hearing was held in which Hoover testified, his trial counsel testified, his appellate counsel testified, and a deputy prosecuting attorney testified. The court found that Hoover had not been denied effective counsel and that conspiracy to commit perjury had not been committed by the deputy prosecuting attorney.

The issue raised now is whether appellant was denied a full and fair hearing on his allegations for post-conviction relief. First, Hoover argues that his counsel at the Rule 37 hearing was ineffective, but correctly recognizes that this issue cannot be raised on appeal. Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463 (1976). It could have been raised by a motion for a new trial. Hilliard v. State, id.

The testimony of Hoover and his two attorneys was in direct conflict. It would serve no useful purpose to recite all of the conflicts because a few examples will suffice. Hoover said that he had asked his trial lawyer to call witnesses for him and that he had a hundred or even a thousand people who could verify his good character. His counsel, an experienced trial lawyer, said that he could not get Hoover to give him the name of even one witness. Hoover told him that he did not want “my friends to know that I am involved in this.”

Hoover said he had numerous documents which would verify that he owned certain Michigan lands — the ownership of which was critical to his defense. His counsel said that his own research of documents showed Hoover did not own the land as he alleged. These documents would actually have hurt, if not destroyed, Hoover’s credibility.

Hoover testified at length about all of the documents that he had in his briefcase at the first trial and also that he had documents at the Rule 37 hearing which would have exonerated him. Yet he failed to offer those documents to the court. He even declined to testify in one regard about his former partners, saying that he had rather not because “these are facts that would be brought out if we should be granted a new trial.”

Hoover complains that his appellate counsel failed to properly investigate the case, familiarize himself with the facts, or adequately represent him on appeal. The appellate counsel said that he made two trips to prison to go over the appellate brief with Hoover and explained many times his tactics and the contents of the brief. He said that he showed Hoover the draft of the brief. He testified that in all his experience in state and federal court he had never spent as much time with a client on a case.

There is no evidence at all that the deputy prosecuting attorney knew of any perjury testimony at the trial. The court found, as a matter of fact, that Hoover had not been convicted on perjured testimony and that neither of his counsel was ineffective. The court concluded that Hoover was entitled to no relief.

We cannot say the court was wrong in its findings. There is a presumed competency of counsel. Cotton v. State, 265 Ark. 375, 578 S.W. 2d 235 (1979). Quite often in cases such as this, clients equate effectiveness with success, a formula the law cannot recognize. Franklin v. State, 251 Ark. 223, 471 S.W. 2d 760 (1971); Mitchell v. Stephens, 353 F. 2d 129 (8th Cir. 1965). The test in Arkansas is whether counsel’s services reduced the proceeding to a farce or a mockery of justice which shocks the court. Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492 (1975); Kozal v. State, 264 Ark. 587, 573 S.W. 2d 323 (1978).

The United States Court of Appeals, Eighth Circuit, puts the test for competency in this way: “[T]rial counsel fails to render effective assistance when he does not exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.” Pinnell v. Cauthron, 540 F. 2d 938 (8th Cir. 1976).

By any test Hoover failed to prove his counsel were ineffective.

Affirmed.


author: John I. Purtle, Justice.

text:
    CITY OF GARLAND, Arkansas v. MILLER COUNTY, Arkansas, and ARKANSAS STATE HIGHWAY AND TRANSPORTATION DEPARTMENT
    80-152
    606 S.W. 2d 751
    Supreme Court of Arkansas
    Opinion delivered November 3, 1980

      Dowd, Harrelson & Moore, for appellant.

      Chris Parker and Prosecuting Attorney’s Office, 8th Judicial District by: Kirk D. Johnson, for appellees.
   John I. Purtle, Justice.

The City of Garland, Miller County, Arkansas, filed a petition for declaratory judgment in the Miller County Chancerry Court in which it sought to enjoin Miller County and the Arkansas State Highway and Transportation Department from trying cases in the Miller County Municipal Court when the violations occurred within the Garland city limits. The chancellor refused to issue an injunction.

On appeal it is argued the court erred in determining that the City of Garland, Arkansas, does not have exclusive jurisdiction under Arkansas statutes for the prosecution of offenses which are violations of the Garland city ordinances and which are also in violation of state laws.

The City of Garland claimed the exclusive right to have cases tried in the City Court when the violations occurred within the city limits. The city had adopted state laws as part of the city ordinances.

Our declaratory judgment statute is Ark. Stat. Ann. § 34-2501 (Repl. 1962) which states in part:

Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. . . .

We held in the case of Jackson v. Smith, Chancellor, 236 Ark. 419, 366 S.W. 2d 278 (1963), that under the declaratory judgment act chancery courts had jurisdiction to render declaratory judgments where the subject matter of the declaration was within equity jurisdiction. In City of North Little Rock, et al v. Gorman, et al, 264 Ark. 150, 568 S.W. 2d 481 (1978), we held that courts of equity do not have jurisdiction to render declaratory judgments where the matter is not cognizable in a court of equity. Again, in the case of Sebastian Co. Assn. v. Ft. Smith Zon. Adj. Bd., 265 Ark. 175, 577 S.W. 2d 394 (1979), we held that if the subject matter of a declaration is within equity jurisdiction an action could be maintained for a declaratory judgment in a court of equity.

In the present case the subject matter under consideration was whether the prosecuting attorney could be compelled to file the overweight vehicle citations in the Garland City Court inasmuch as they were issued by the Transportation Officers from their scales in the city limits of Garland. This subject matter is not subject to action by the chancery court, and it therefore had no jurisdiction to consider the petition.

Reversed and dismissed.


author: John F. Stroud, Justice. John I. Purtle, Justice,

text:
    Darrell Douglas KIRK v. STATE of Arkansas
    CR 80-116
    606 S.W. 2d 755
    Supreme Court of Arkansas
    Opinion delivered November 3, 1980

      E. Alvin Schay, State Appellante Defender, by: Deborah Davies Cross, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

Appellant was tried before a jury on September 19, 1979, for his role in the alleged rape of his estranged wife some three months earlier. While appellant did not personally have any physical contact with the victim, it was alleged that he held a shotgun on the person with whom the victim was living while his co-defendant performed the illicit act. For his part in the crime, appellant was convicted of rape and sentenced to imprisonment for thirty years. Appellant brings this appeal alleging the trial court abused his discretion in refusing to excuse two particular jurors for cause, one for actual bias as required by Ark. Stat. Ann. § 43-1919 (Repl. 1977), and the other for physical incapacity as required by Ark. Stat. Ann. § 43-1917 (Repl. 1977). Finding no reversible error, we affirm the judgment of the trial court.

During voir dire of the jury the following colloquy took place between defense counsel, Michael Dabney, and prospective juror Roy Baker:

Q. Let me ask you this: I haven’t gotten into this with any others, but it is my duty to ask some of these questions although they don’t necessarily represent my point of view. If a guilty verdict should be rendered, it might be, it might not be, but if it is rendered the punishment starts at five (5) years and goes up to fifty (50) years or life. If you find in your opinion the defendant is guilty of rape — I have to ask you this question, although I don’t believe it — if you find the defendant guilty of rape, today, would you be willing to consider, as serious as that charge is, five (5) years, depending on the evidence that unfolds today?
Mr. Baker:
It would depend on the evidence; why, of course.
Q. If there were evidence that came forth that could cause you to give five (5) years, could you consider that?
Mr. Baker:
Well, I wouldn’t think so if he’s guilty; I don’t think I’d just stand on just five years.
Q. You wouldn’t be able to consider just five (5) years, no matter what occurred?
Mr. Baker:
Not if he’s proven guilty.

Defense counsel then challenged juror Baker for cause alleging that his answers indicated actual bias. When the trial court refused to excuse juror Baker for cause, defense counsel excused him with a peremptory challenge.

Appellant also contends that the refusal of the trial court to excuse prospective juror Austin Reed for cause was reversible error due to his hearing problem. The hearing difficulty was brought to defense counsel’s attention when Mr. Reed asked him to talk a little bit louder. It is obvious from the unresponsive answers of Mr. Reed during the ensuing dialogue that he had some difficulty hearing defense counsel, particularly when Mr. Dabney turned his head. Upon questioning by the court, Mr. Reed agreed to sit on the front row of the jury box and to let the court know immediately if he had difficulty hearing. The court accordingly refused to excuse Mr. Reed for cause, and defense counsel exercised another of his peremptory challenges. Voir dire then confined for some time until Audrey Emerson was called. Although defense counsel had used his last peremptory challenge to excuse the juror called immediately prior to juror Emerson, he nonetheless questioned her at length to make sure she could give appellant a fair trial. At the conclusion of the questioning, the following exchange took place:

The Court: Is she acceptable to the State?
Mr. Heuer: Yes, sir.
The Court: Is she acceptable to the defense?
Mr. Dabney: She’s acceptable, Your Honor.

Appellant’s counsel on this appeal, different from that at trial, now asserts that appellant was prejudiced by the trial court’s refusal to excuse jurors Baker and Reed for cause in that appellant was compelled to exhaust his peremptory challenges prior to the calling of juror Emerson, whom he now claims he would have peremptorily challenged since she had served on a jury in a rape case the week before. We need not decide whether the actions of the trial court constituted an abuse of discretion as appellant failed to show that he was prejudiced by being required to accept an undesirable juror. To the contrary, counsel for appellant indicated that Mrs. Emerson was acceptable. While discussing a variety of cases on the point this court reiterated in Arkansas Highway Commission v. Dalrymple, 252 Ark. 771, 771, 480 S.W. 2d 955 (1972), the following principle:

[T]he right of peremptory challenges is conferred as a means to reject jurors — not to select jurors, and until such time as a party is forced to take an objectionable juror without the privilege of exercising a peremptory challenge, he has shown no prejudice.

See also Green v. State, 223 Ark. 761, 270 S.W. 2d 895 (1954) and Conley v. State, 270 Ark. 886, 607 S.W. 2d 328 (1980).

We take this opportunity to point out that Rule 9(d) of the Rules of Supreme Court requires that appellant abstract only such material parts of the record as are necessary for this court to fully understand the questions presented. In the present case, as the issues on appeal involved only a portion of the voir dire proceedings, it was wholly unnecessary for appellant to utilize over 40 pages of his brief to abstract the testimony presented at trial. Stricter compliance with Rule 9(d) would result in a more efficient use of counsel’s time and energy, as well as those of this court.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion does an excellent job of defining and refining the issues. Therefore, it will not be necessary for me to set out any of the facts as they are accurately stated in the majority opinion.

I disagree with the result and hasten to point out that the majority does not hold that the court did not commit error in refusing to excuse juror Baker for cause. Obviously, it was error in light of the recent case of Haynes v. State, 270 Ark. 685, 606 S.W. 563 (1980), wherein we stated:

. . . No conscientious prospective juror should be required to say in advance of the trial whether he would consider the maximum penalty to be excessive. He should first be allowed to hear the testimony, observe the exhibits, hear the instructions by the court, and listen to the arguments of counsel. . . .
# * #
Both the state and the defendant are entitled to a fair and impartial jury, and the most that may be required of a juror, before the trial has begun, is that he be willing to consider all the penalties provided by law and that he not be irrevocably committed to vote against the possibile penalties, regardless of the facts and circumstances that might ensue in the course of the trial.

Although we were speaking of the opposite end of the penalty range, the statement applies with equal force to the minimum range of the penalty. It cannot be said that a juror who has decided in advance of the trial that he will not consider a portion of the penalty is not a biased juror. Again, I point out the majority does not state this juror was unbiased.

The error was prejudicial because the appellant had no choice other than to accept juror Emerson. Any competent defense attorney would want to exercise a peremptory challenge on a juror who had recently sat on a similar case. Obviously, appellant did not raise a fuss at this point because he would run the risk of further alienating this juror and possibly others. The fact that the twelfth juror had participated in a previous' trial which involved rape is not grounds within itself to challenge for cause. Therefore, the only way the appellant could have excused this juror was by way of peremptory challenge. Having previously exhausted such challenges, he was forced to accept this juror. Had the court excused juror Baker for cause the appellant would have been able to exercise this critical peremptory challenge.

In my opinion juror Reed should have been excused because of his hearing disability. Although it was not reversible error to fail to excuse this juror, it certainly would have saved a lot of trouble and perhaps some embarrassment had this juror been excused. In order for him to hear the testimony it may well have been that the witnesses and attorneys would have had to speak in a tone so loud as to irritate the other jurors. Perhaps he would have been embarrassed to ask that testimony be repeated.

I feel the error in failing to excuse juror Baker for cause was prejudicial under the circumstances. I would reverse the case and remand it for another trial.


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

text:
    Merlyn W. JONES and Florence S. JONES v. CENTRAL ARKANSAS RADIATION THERAPY INSTITUTE, INC., and Dr. D. R. HARRIS and John DOE
    80-139
    607 S.W. 2d 334
    Supreme Court of Arkansas
    Opinion delivered November 3, 1980
    Rehearing denied December 8, 1980

      Haskins & Wilson, by: Gary R. Eubanks & Associates, for appellants.

      Friday, Eldredge & Clark, by: J. D. Watson, for appellees.
   Richard L. Mays, Justice.

More than two years after appellant, Merlyn W. Jones, received radiation therapy from appellees, Dr. D. R. Harris and the Central Arkansas Radiation Therapy Institute, Inc., he and his wife filed suit against them alleging malpractice and fraudulent concealment. When appellees raised the two year malpractice statute of limitation as a bar to appellants’ action, the trial court dismissed appellants’ complaint. We reverse the trial court because appellants’ complaint sets forth sufficient facts of fraudulent concealment of the alleged malpractice to toll the statute of limitation.

Although Ark. Stat. Ann. § 37-205 (Repl. 1962) requires that all medical malpractice actions be brought within 2 years from the date of the alleged malpractice, this Court has long recognized that fraudulent concealment of one’s malpractice will toll the running of the statute of limitation. Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W. 2d 548 (1953).

In reviewing the trial court’s dismissal, we are obliged to accept as true all of the factual allegations of appellants’ complaint and draw all reasonable inferences from those alleged facts in favor of appellants. Griffin v. Georges, Inc., 267 Ark. 91, 589 S.W. 2d 24 (1979).

Appellants’ complaint alleged that as a proximate result of radiation treatment administered by appellees or about August 3, 1976, and thereafter, Mr. Jones received severe and permanent injuries, including, but not limited to, radiation and quadraplegia secondary to radiation myelitis ...” In their amended complaint, appellants allege that in July of 1978 Jones entered Veterans Administration Hospital in Little Rock, Arkansas and was subsequently released with a diagnosis of radiation myelitis. When he stopped by Dr. Harris’ office to show him what the radiation had done, Dr. Harris retorted, “well Merlyn, what did you do, come up here to make idle threats?” Dr. Harris is alleged to have examined appellant, admitted that there was damage, but to have told appellant that he was not convinced that the radiation treatment had caused it. He told appellant that he would have to secure his files from the Veteran’s Hospital and arrange another appointment. No appointment was arranged however, and after repeated calls, appellant was only able to arrange an appointment with Dr. Harris in late September or early October, after the statute pf limitation had run. Dr. Harris allegedly claimed that he could not obtain the necessary information from the Veteran’s Hospital to make a diagnosis and informed appellant that he would need to undergo certain tests. Dr. Harris also said that he would contact a Dr. Warren Boop, a neurosurgeon, about Jones’ condition before setting up another appointment. According to the complaint, Jones agreed but never heard from Dr. Harris or his office again.

We believe that appellants’ allegations present a factual issue as to fraudulent concealment. It may reasonably be inferred that Dr. Harris’ representation concerning the uncertainty about the cause of Jones’ condition was false and that his conduct thereafter was purposely dilatory to cover up its fraudulent character and prevent Jones from seeing another physician. But for this fraud, Merlyn Jones could have discovered the alleged malpractice before the statute of limitation ran. Therefore, since the statute of limitation may have been tolled by the fraudulent concealment, appellants’ action should not have been dismissed.

Reversed.

Fogleman, C.J., Holt and Stroud, JJ., dissent.

John F. Stroud, Justice,

dissenting. I respectfully dissent from the majority opinion due to its finding that the complaint of appellants set forth sufficient facts of fraudulent concealment of the alleged malpractice to toll the statute of limitations. Accepting as true all of the facts alleged in appellants’ complaint and amended complaint and giving them all reasonable inferences in favor of appellants, I still am unable to find sufficient facts alleged to find concealment, much less fraudulent concealment.

Appellants allege that the treatment of Merlyn Jones by appellees ended on September 7, 1976, and that he came by the offices of appellees in July of 1978 to show Dr. D. R. Harris what the radiation had done to him. Merlyn Jones had just been discharged from the Veterans Administration Hospital at Fort Roots where he received therapy and where it was confirmed that he had radiation myelitis. There is no allegation that Mr. Jones saw appellees between September 7, 1976, and July of 1978, or that appellees even knew that he was suffering from radiation myelitis until Mr. Jones so advised Dr. Harris. How could appellees conceal the nature, extent and cause of the injury to Merlyn Jones from the very person who told them?

I also find no merit to appellants’ second point of error on appeal that they were denied due process of law by the failure of the trial court to find that the statute of limitations did not begin to run until it was possible to diagnose the injury of Mr. Jones. Appellants attached an affidavit of a certified practicing radiologist as an exhibit to their amended complaint that stated that the symptomology of radiation myelopathy did not appear in Mr. Jones until 11 months after his treatments had ended. This court has previously held Ark. Stat. Ann. § 37-205 (Repl. 1962), the two year malpractice statute, to be constitutional in Owen v. Wilson, 260 Ark. 21, 537 S.W. 2d 543 (1976) where we said:

The statutory time within which an action must be brought cannot be judicially pronounced unreasonable unless it is so short as under the circumstances to amount to a practical denial of the right itself. [Citation omitted.] We are in no position to say that the legislative determination that two years ... is such an unreasonably short period of time for those situated like appellants to discover and assert their cause of action, absent fraudulent concealment, to deprive them of due process of law or to deprive them of any remedy.

Here appellants had 13 months from the time they allege the symptoms appeared and two months from the confirmation of the diagnosis to file a malpractice action. I cannot say these time periods denied them due process of law. I would affirm the order of the trial court granting appellees’ Motion to Dismiss.

Fogleman, C.J., and Holt, J., join in this dissent.


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

text:
    Henry Clayborne JOHNSON v. STATE of Arkansas
    CR 80-145
    606 S.W. 2d 752
    Supreme Court of Arkansas
    Opinion delivered November 3, 1980

      E. Alvin Schay, State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   Richard L. Mays, Justice.

Appellant was charged and convicted of second degree murder under Ark. Stat. Ann. § 4l-1503(l)(b) (Repl. 1977), in that he “knowingly” caused the death of another person under circumstances manifesting extreme indifference to the value of human life. Fie brings this appeal contending that there was no substantial evidence to support a jury’s finding that he “knowingly” caused a death. We agree and, accordingly, reverse.

The evidence presented at the trial established that appellant and his girlfriend, Ms. Helen Pace, were sitting in Ms. Pace’s Volkswagen in the late evening of August 30, 1979. The car was parked near the intersection of Wright and Battery Avenues in Little Rock, Arkansas, and was facing north across Wright Avenue which runs east and west. There were 15 to 50 people milling about the street in the general vicinity of two night clubs which were located on the north side of Wright Avenue and to the east of Ms. Pace’s parked car.

Ms. Pate, who was seated on the passenger side of the car, observed Carl Glass, a former boyfriend with whom she had had an altercation earlier that evening, approaching her car from the rear and got out to meet him. After exchanging a few words, the two began fighting. During the struggle, the appellant grabbed a pistol from the car seat, got out, and fired a shot in the direction of Glass. When appellant fired a second shot, Glass quickly moved around to the front of the Volkswagon, keeping his head down. He was now generally between the appellant and the two night clubs across the street where the crowd of people had gathered. As Glass raised up and started running, appellant fired a third time, and then fired two more shots in his direction as he ran west on Wright Avenue.

Just before the shooting, the victim, Tommy Stacker, was standing in front of the 21 Nighthawks Club, one of the clubs across the street, located on the northwest corner of Wright Avenue and Wolfe. As he began to cross Wright Avenue going away from the crowd in response to someone’s beckoning, he was struck in the chest by a bullet. Stacker stumbled back into the 21 Nighthawks. Club and collapsed. He was then carried outside and laid on the sidewalk where he died.

In reviewing a criminal conviction on appeal in which the appellant challenges the sufficiency of the evidence, we view the evidence in the light most favorable to the state and affirm only if there is substantial evidence to support the conviction. Harris v. State, 262 Ark. 680, 561 S.W. 2d 69 (1978). Evidence is substantial if it has sufficient force and character to compel a conclusion with reasonable and material certainty and precision. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980). It must be such that it induces the mind to pass beyond mere suspicion or conjecture. Jones v. State, supra.

Appellant contends that there is no substantial evidence that he “knowingly” caused the death of Tommy Stacker. A person acts “knowingly” when he is aware of the nature of his conduct, the attendant circumstances and that his conduct is practically certain to cause the result. Ark. Stat. Ann. § 41-1503(l)(b) (Repl. 1977); Harris v. State, supra. Although we find sufficient evidence to infer that the appellant was aware of the nature of his conduct and the attendant circumstances, we do not find substantial evidence to justify concluding that appellant was aware that his conduct was practically certain to cause the death of a bystander or a death other than that of Glass. There is no evidence that appellant shot into the crowd. In fact, the evidence indicates that the victim was not a part of the crowd when he was shot. Although Glass testified that appellant would have shot across the street somewhere if the appellant’s third shot had been aimed at him, we do not find that testimony sufficient to establish that appellant shot into the crowd. Since we conclude that shooting into the crowd is the only way that appellant could have been practically certain that a death would result, we find insufficient evidence to establish that he “knowingly” caused the death of Tommy Stacker.

We are not unmindful that had appellant been charged under a statutory provision in which his intent to kill or seriously harm anyone had been in issue, no challenge to the sufficiency of the evidence could have been sustained. There is substantial evidence that appellant intended to kill or cause serious injury to Glass. But, as we construe the term, practically certain, in relation to the death which did occur, we find that the facts fall short of meeting its requirements.

Reversed.

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

John F. Stroud, Justice,

dissenting. Appellant was charged by information and convicted by a jury of second degree murder in that he did “knowingly cause the death of Tommy Stacker under circumstances manifesting extreme indifference to the value of human life.” Ark. Stat. Ann. § 41-203 (2) defines “knowingly” as it is used in this context:

A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

The majority of this court has incredibly reversed the conviction by finding that “shooting into the crowd is the only way that appellant could have been practically certain that a death would result.” The shooting occurred at night in an area of several night clubs, and Ms. Helen Pace, the appellant’s girlfriend, estimated that between 40 and 50 persons were on the streets there at the time of the shooting. It was undisputed that the appellant fired five shots from a .38 pistol at Carl Glass as he ran down Wright Avenue in Little Rock. Apparently Tommy Stacker was not standing in a crowd, but was standing outside one of the clubs talking to Gussie Dean Henderson. She testified that they were about to enter the club when someone called to him, and he was shot as he stepped off the curb to cross the street. I think the shooting by appellant was clearly under circumstances manifesting extreme indifference to the value of human life and that it was practically certain that wildly firing five shots in that crowded area would either kill Carl Glass or someone else. I would affirm the conviction.

Fogleman, C.J., and Hickman, J., join in this dissent.


author: George Pike, Jr., Special Justice.

text:
    Dennis E. WINSTON v. Brenda ROBINSON and The STATE of Arkansas
    80-82
    606 S.W. 2d 757
    Supreme Court of Arkansas
    Opinion delivered November 3, 1980

      Ball & Mourton, by: Kenneth R. Mourton, and Ray & Donovan, by: Carrold E. Ray, for appellant.
    Lee County Child Support Enforcement Unit, by: Doddridge M. Daggett, and Mays & Crutcher, by: Zimmery Crutcher, for appellees.
   George Pike, Jr., Special Justice.

This appeal is brought by Dennis E. Winston from a judgment of the Lee County Circuit Court finding that he was the father of Appellee Brenda Robinson’s child, Dennis E. Winston, Jr., awarding $135 per month for past support for the six years from birth to date of trial ($9,720), and $350 per month future support until the child reaches sixteen, pursuant to the Arkansas bastardy statutes. The appeal presents questions of statute of limitations, admissibility of blood tests, propriety of the appeal from the county court to the circuit court, and ex-cessiveness of the amount awarded. The case is reversed and remanded for a new trial for the reasons stated below.

Winston does not contend that the evidence was insufficient to support the jury’s verdict finding him to be the father of Dennis Winston, Jr. He admitted that he had had sex with Brenda Robinson during October and November of 1972, when the child was conceived. She was a junior in Marianna High School at that time, a cheerleader, and he was a senior, a football player. There was testimony that they were “the golden couple”, “a flashy couple”, dating frequently, if not steadily, during this period of time. She testified they had first had sex in April of 1971, and that she dated no other person besides Winston while she was in high school. The child was born on July 17, 1973, and given his present name, Dennis Winston, Jr.

In 1973, she applied for and began receiving assistance from the State for child support, naming Winston as the father. In 1975 and again in 1977, the State wrote Winston demanding that he contribute to the support of the child, which he did not, and finally, on February 7, 1978, this action was begun by Brenda Robinson and the State of Arkansas by filing a complaint in the county court of Lee County, pursuant to Ark. Stats. § 34-701, et seq. At that time Winston was employed as a professional football player by the Pittsburg Steelers, and Brenda Robinson was employed as a singer in a rock music band headquartered in Little Rock.

Following a trial before a referee appointed by the County Judge, judgment was entered by the County Judge finding that Winston was the father of the child and awarding $90 per month for support from July 17, 1973, to July 17, 1978, and $125 per month beginning August 15, 1978. A notice of appeal was filed by the State of Arkansas on the issue of back child support, but not the issue of paternity, plus the issue of whether the County Judge correctly ruled that the State of Arkansas was not a proper party. Winston also filed a notice of appeal from the judgment. Brenda Robinson filed no appeal. On the trial de novo before a jury in the Circuit Court, a verdict was returned finding that Winston was the father of Brenda Robinson’s child. Immediately after the verdict, the Court held a hearing to determine the amount of the support and fixed the amount at $135 per month for the past six years and $350 per month for the future. Judgment was entered accordingly, and Winston filed this appeal.

For reversal, Winston contends: (1) the claim is barred by the statute of limitations; (2) the Trial Court erred in allowing the introduction of blood tests to establish that Winston was the father; (3) the Trial Court erred in permitting the award to be increased over that of the County Judge since Brenda Robinson filed no separate appeal; (4) the amount of the award was excessive.

(1) The Statute of Limitations

The Trial Court held that the action was not barred by a statute of limitations since the complaint was filed within five years from the birth of the child, and the Trial Court applied the five-year statute set forth in Ark. Stats. § 37-213. Winston contends that the three-year statute of limitations set forth in Ark. Stats. § 37-206 should govern, thus barring the action, or, in the alternative, that if the five-year statute is applied, the time should begin to run from the date of conception, which was more than five years prior to the filing of the suit.

This Court holds that the three-year statute is the applicable statute, but that the statute does not bar the entire cause of action, only support for the period more than three years prior to the filing of the complaint.

The bastardy statutes of Arkansas contain no specific statute of limitations. However, in the early case of Davis v. Herrington, 53 Ark. 5, 13 S.W. 215 (1890) this Court applied the three-year statute of limitations to a case involving a promise to pay support for an illegitimate child and allowed recovery for support only for the three years prior to filing the complaint. The court pointed out that by common law the mother, and not the putative father, of an illegitimate child was bound to maintain the child, but that the Arkansas statute conferred upon the mother of such a child the right to compel the father to contribute to the support of the child.

Ark. Stats. § 37-206 has been applied to obligations which exist only because of a statutory provision. Nebraska National Bank v. Walsh, 68 Ark. 433, 59 S.W. 952 (1900).

This three-year statute has also been applied in the similar situation of a divorce decree which makes no provision for child support. In Wilder v. Garner, 235 Ark. 400, 360 S.W. 2d 192 (1962), this Court distinguished earlier cases, relied upon by Brenda Robinson and the State, which had applied the five-year statute in cases where the obligation to support was set forth in the divorce decree. The Court stated:

But in the present case there was no provision in the original divorce decree for the support, and the obligation on the father is one “express or implied, not in writing.” (Section 37-206, Ark. Stats.); and would, therefore, come within the 3-year statute. See Davis, Admr. v. Herrington, 53 Ark. 5, 13 S.W. 215. (235 Ark. 400 at 403)

Although the action in Wilder was brought more than three years after the divorce decree, this Court refused to bar the entire claim, but rather allowed recovery for support during the three years prior to the filing of the complaint for the reason that:

. . .as long as the children are minors, the obligation is a continuing one on the father to support the children, and during such period of minority limitations could not bar all amounts. (235 Ark. 400 at 402)

We hold, therefore, that the Trial Court erred in awarding recovery for support for the period more than three years prior to the filing of the complaint on February 7, 1978.

(2) Admissibility of Blood Tests to Establish Paternity.

The Trial Court allowed into evidence two blood tests which did not exclude Winston as being the father, for the purpose of showing that he was the father. The introduction of such tests was admittedly in violation of the provision in the bastardy statutes which states:

Ark. Stats. 34-705.1. Trial Blood tests as admissible evidence. — Whenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the trial court may direct that the husband, wife and child submit to one (1) or more blood tests to determine whether or not the defendant can be excluded as being the father of the child. The results of the tests shall be receivable in evidence, but only in cases where definite exclusion is established. (Emphasis added.)

Appellees Brenda Robinson and the State argue that the introduction of the blood tests into evidence to establish paternity, rather than non-paternity, was proper because the statute set forth above was repealed by the clause repealing “all laws in conflict herewith” which was a part of the statute adopting the Uniform Rules of Evidence. (Ark. Stats. § 28-1001 et seq. [Section 2, Acts of 1975 (Extended Session 1976) No. 1143]). The Court disagrees. The repealing clause specifically listed statutes that were repealed by the Uniform Rules of Evidence. Included among those statutes was one provision of the bastardy statutes. Ark. Stats. § 34-712, relating to the admissibility of the dying declarations of the mother, but the repealing clause conspicuously did not mention as being repealed the portion of the bastardy statutes dealing with the admissibility of blood tests, which is the subject of this litigation.

Under well-established rules of statutory construction, a statute of general nature does not repeal an earlier statute on the same subject of a specific nature, unless there is a plain conflict between the two. Goggin v. Ratchford, 217 Ark. 180, 229 S.W. 2d 130 (1950); Faver v. Golden, 216 Ark. 792, 227 S.W. 2d 453 (1950); Kendall v. Ramsey, 179 Ark. 984, 19 S.W. 2d 1020 (1929). The Court in the Kendall case stated:

In the application of the rule, this court has held that a general affirmative statute does not repeal a prior particular statute or the particular provisions of a prior statute on the same subject, unless there is an invincible repugnancy between the two. (179 Ark. 984 at 987)

Here, there is no such conflict. Rule 402 of the Uniform Rules of Evidence acknowledges that other statutes may render inadmissible evidence that otherwise would be admissible under the rules. Rule 402 states:

All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of the State. (Emphasis added)

Even with the enactment of the Uniform Rules of Evidence, the General Assembly still may have enacted or may later enact specific statutes dealing with the admissibility of evidence. Such statutes legitimately express the public policy of the State on the admissibility of evidence, for example, that may be of dubious reliability.

The desirability of dealing specifically with certain types of evidence is demonstrated by the present case in which the doctor of philosophy through whom the blood tests were introduced admitted in his report that even the average of the tests which he calculated to show that there was “an 88 percent greater chance that Mr. Winston is the father of Dennis, Jr., as compared with any other man of the same race,” was not of any significance. He stated “a probability this low is usually not considered to be of any significance.” Yet both tests were allowed into evidence in violation of the statute.

The witness through whom the reports were introduced frankly admitted that there was a vast difference between the reliability of such blood tests to show that a man was not the father of the child, for which purpose the tests are highly reliable (the witness would give million to one odds) as opposed to attempting to prove that a man is the father, concerning which all the test can say is that he is one among others who may be. While an 88 percent greater chance might not be of any significance to the doctor of philosophy, such a number could be expected to influence laymen in the field of blood testing and could, therefore, be highly prejudicial before a jury, or court.

(3) The Propriety of the Appeal from the County Court.

Winston next contends that the Trial Court erred in awarding an amount greater than that allowed by the County Judge for the reason that no appeal was filed by Brenda Robinson from the judgment of the county court. The Court finds this contention to be without merit. The appeal to the Circuit Court is a de novo trial, not a review of the evidence below. Ark. Stats. § 34-711 provides:

Trial de novo on appeal. — The circuit court shall hear the case de novo, and make such orders and render such judgment on appeal as the law and evidence require under this act.

Dennis Winston appealed from the judgment of the county court in its entirety, thus raising the issues of paternity as well as support. He thus opened the issue of support for new evidence and is not in a position to complain that the jury arrived at a figure on the evidence before it that happened to be different, in this case larger, than the amount the County Judge awarded based upon the evidence before the referee.

In addition, an appeal was taken by the State of Arkansas from the judgment, of the county court, in accordance with the statute allowing the appeal which provides as follows:

Ark. Stats. 34-710. Duty of prosecuting attorney. — The attorney prosecuting for the circuit shall conduct the suit on behalf of the State on all appeals to the circuit court in cases of bastardy.

The mother is a proper party to the suit, but the State is entitled to prosecute the appeal. As this Court pointed out in Epperson v. Sharp, 222 Ark. 456, 261 S.W. 2d 267 (1953),

First, appellant contends that Jewell Dean Sharp is not a proper party to the litigation and cannot maintain the suit. It is true that the statutes provide that the prosecuting attorney shall conduct the suit on behalf of the State on all appeals to circuit court in cases of bastardy. Ark. Stats. § 34-710. However, this does not mean that the mother of the child cannot have an attorney to represent her nor does it mean that the suit must be dismissed if the prosecuting attorney does not appeal in the case. (222 Ark. 456 at 457.)

Thus, the issue of the amount of support was properly brought before the Circuit Court, both by Winston and the State of Arkansas, and Brenda Robinson was a proper party to that proceeding. None of the parties were bound, and will not be bound on any trial after this remand, by the amount found by the County Court.

(4) Excessiveness of the Award

Since the case is being remanded for a new trial, it is not necessary to reach the issue of the excessiveness of the award for support. If the case should be presented to this Court on a second appeal, the amount would have to be reviewed in the light of the evidence introduced at the new trial.

The judgment is, therefore, reversed and the cause remanded to the Circuit Court of Lee County for further proceedings consistent with this opinion.

Mr. Justice Mays did not participate.


author: Marian F. Penix, Judge.

text:
    In the Matter of the Adoption of Thomas David HENSLEY, Lori Ann HENSLEY, and Carmen Dawn HENSLEY, Minors; Porter and Alene HENSLEY v. Jack WIST and Catherine WIST
    CA 80-258
    607 S.W. 2d 80
    Court of Appeals of Arkansas
    Opinion delivered November 5, 1980

      Sam Ed Gibson, P.A., for appellants.

      Hall, Tucker, Lovell, Also brook & Moudy, for appellees.
   Marian F. Penix, Judge.

Three children were born to Catherine and Arthur Hensley. The Hensleys divorced in 1976. Catherine was awarded custody of Thomas, Lori Ann and Carmen. Catherine married Jack Wist in 1977. On November 3, 1978, Arthur Hensley, the natural father of the three children, was killed. The paternal grandparents, Porter and Aleñe Hensley, petitioned the Chancery Court for visitation pursuant to Ark. Stat. Ann. § 57-135 on November 8, 1979- No summons was issued and no other pleadings were filed.

On February 14, 1980, Jack Wist petitioned the Probate Court, to adopt Catherine’s three children. The Probate Court, over the objection of the Wists’ attorney, permitted the grandparents’ attorney to participate during the adoption hearing to the extent of cross-examination. The Court granted the adoption March 6, 1980. The grandparents’ attorney asked the Chancellor (the same person as the Probate Judge) to rule on their November 8, 1979 petition for visitation. Catherine Wist’s (natural mother) motion for dismissal of the petition was granted by the Chancery Court. On March 21, 1980, the grandparents petitioned the Probate Court to set aside the adoption order. Jcak Wist responded the grandparents were not parties to the adoption action, had not timely applied to intervene under Rule 24 of the Arkansas Rules of Civil Procedure and that the petition was not timely filed under Rule 59 of the Arkansas Rules of Civil Procedure and moved to strike the petition. The grandparents have appealed the dismissal of the petition for visitation in Chancery and also the denial of the petition to set aside the Adoption Decree in Probate. The appeals have been consolidated.

We first turn to the issue of whether the Trial Court correctly dismissed the petition to set aside the adoption order. Ark. Stat. Ann. § 56-216 states:

Appeal and validation of adoption decree. — (a) An appeal from any final order or decree rendered under this Act may be taken in the manner and time provided for appeal from a judgment in a civil action, (b) Subject to the disposition of an appeal, upon the expiration of one [1] year after an adoption decree is issued the decree cannot be questioned by any person including the petitioner, . . .

This statute which is couched in negative language gives rise to a corollary. For one year following the adoption decree, the adoption may be challenged by any person with an interest. Determining whether a party has an interest which allows this challenge is a more difficult question.

The instant case is factually distinguished from Cotten v. Hamblin, 234 Ark. 109, 350 S.W. 2d 612 (1961). In that case, the plaintiff was the paternal grandfather of two boys, aged 12 and 14 who had lived with the plaintiff and his wife for most of their lives. In October of 1959, an order of final adoption was entered which gave the two boys to the defendants, the Hamblins. At trial, the Probate Court had dismissed the petition of the paternal grandparents which challenged the sought to annul the adoption decree. In reversing the Probate Court, the Supreme Court said:

Of course, a rank outsider or mere stranger could not maintain a petition to annul an order of adoption, but in the case at bar the petitioners alleged that the little boys were living with petitioners who had the care and custody of the children for many years before they were taken away. So the petitioners occupied some sort of semi loco parentis relationship to the children, and are not entire strangers. A grandmother was held entitled to resist an adoption proceeding in Fries v. Phillips. (Cite Omitted). Cotten, supra, at 111-112.

Here, the appellants never had custody of the children. There is no evidence of a “loco parentis” relationship. While the children have been spending at least one week-end per month with their grandparents, this falls short of placing them in a loco parentis relationship. Absent this interest, the appellants have no legal interest in the adoption which would permit them to challenge the adoption decree. The Probate Court properly denied their petition to set aside the adoption decree.

Turning to the appeal from Chancery regarding the dismissal of the petition for visitation, we find error and must reverse. The chancellor should have held a hearing to determine if visitation rights should be granted in this case. Whether the granting of the petition is in the best interest of the children is a fact question to be decided by the Chancellor but one he is not preluded from granting as a matter of law.

The appellees have cited Poe v. Case, 263 Ark. 488, 565 S.W. 2d 612 (1978), as support for their position any right to visitation which the grandparents may have had was extinguished by the adoption. While the langugae in Poe strongly indicates this is the case, the language is dicta. In Poe, Christine Handy, a minor, was adopted by Jimmy Poe, husband of her natural mother, Carolyn Poe. It was determined the natural father had abandoned the child. The Trial Court in ordering the adoption, also granted to Bernice Case, the paternal grandmother, reasonable visitation rights. Subsequently, Mrs. Case filed a petition asking that the Poes be held in contempt for failure to allow her to exercise her visitation rights. Further, she asked the Court to set definite visitation rights. This was granted by the Trial Court. Poe dealt with the narrow issue of whether the Probate Court has the power to grant visitation. The Supreme Court, in reversing the grant of the petition, stated adoption, not having existed at Common Law, is a creature of statute. Nowhere is the Probate Court given the authority to grant visitation rights. While the opinion deals with the effect of adoption on different aspects of the relationship with the natural parent’s family, this language is not pertinent to the issue and holding in th case, and is therefore not controlling.

Ark. Stat. Ann. § 57-135 states:

In any case whre a parent, either natural or adoptive, is deceased, the chancery court may, upon petition of either parent of the deceased parent, grant the petitioner reasonable rights to visit the children of the deceased parent and may enter appropriate court orders to enforce and insure such visitation rights.

This statute represents a legislative recognition of the rights of grandparents to visit with the children of a deceased child. Nowhere in the Adoption Code is this statute superseded and excepted. Utilization of this statute is the only vehicle by which these grandparents may insure they will be able to visit and communicate with the children of their deceased child. Furthermore, this is a case in which the natural parent had not abandoned his children before his death. Arthur Hensley had been supporting and visiting with his children pursuant to the Divorce Decree. Had he still been alive, he would not have lost his right to refuse to consent to the adoption of the children. There is no reason his family should be cut off from the children.

This case is remanded to the Chancery Court for a hearing on the Petition for Visitation Rights. The Chancellor is to hear this petition to determine if it is in the best interests of the children to grant the petition. We recognize the strong public policy favoring adoption in this state and the need to make the new family as strong as possible. The Chancellor, in cases of this type, must determine if it is in the best interests of the children to see their grandparents. He must balance the two public policies, that of allowing visitation and that of making the adoptive family strong, and to determine the best interests of the children.

The appeal from the Saline County Probate Court is affirmed.

The appeal from the Saline County Chancery Court is reversed and remanded with directions to hold a hearing.