author: Frank Holt, Justice.

text:
    James Kent DEASON v. STATE of Arkansas
    CR 77-218
    562 S.W. 2d 79
    Opinion delivered March 6, 1978
    (Division II)

      W. Asa Hutchinson, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged with capital felony murder. Ark. Stat. Ann. § 41-4702 (Supp. 1972). On a plea of guilty to first degree murder and pursuant to a plea agreement, appellant was sentenced to life imprisonment. Three years later he Tiled a pro se motion for post-conviction relief, Rules of Crim. Proc., Rule 37 (1976), alleging that his guilty plea was involuntary and inconsistent with due process. After an evidentiary hearing, where appellant was represented by present court appointed counsel, the court denied the petition finding that appellant’s plea of guilty was entered voluntarily, knowingly and understandingly and with the advice and assistance of adequate and effective assistance of counsel. Appellant first contends for reversal that he was incompetent at the time of his plea and sentencing and, therefore, did not intelligently waive his rights and voluntarily enter a guilty plea.

At the arraignment, appellant initially entered a plea of not guilty by reason of insanity. He was then committed by the court to the Arkansas State Hospital for psychiatric examination and was reported to be without psychosis. About one month later, appellant changed his plea to guilty at which time he never challenged the accuracy of the psychiatric report nor offered any evidence of incompetence. The trial court was under no constitutional duty to hold a sanity hearing sua sponle at the time of the plea and sentencing. Maret v. United States, 433 F. 2d 1064 (8th Cir. Jones v. Swenson, 469 F. 2d 535 (8th Cir. 1972); and Maxwell v. Bishop, 257 F. Supp. 710 (E.D. 1966).

A defendant in a criminal case is ordinarily presumed to be mentally competent to stand trial, and the burden of proving incompetence is upon the defendant. Bumgarner v. Lockhart, 361 F. Supp. 829 (E.D. Ark. 1973). The test of competence to stand trial is whether an accused “has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402 (1960). Here, at the Rule 37 hearing, appellant testified that he suffered “a mental, emotional breakdown during the whole period.” Other witnesses verified that appellant was emotionally upset, tense, and often cried uncontrollably. Appellant’s attorney described appellant’s behavior “more as a passive thing rather than an active emotional disturbance” and “as remorse for what happened.” “[T]he mere fact that an accused is nervous, or very excitable, is not sufficient grounds for a continuance” on the assertion of incompetence to stand trial. Perkins v. State, 217 Ark. 252, 230 S.W. 2d 1 (1950). Here there was also evidence that appellant attempted suicide prior to trial. In United States v. Caldwell, 543 F. 2d 1333 (D.C. Cir. 1974), it was held that suicide attempts do not establish that an accused is incompetent to participate in his role at trial or unable to perform it. Appellant also argues that his inability to remember the details of the crime is indicative of his incompetence to stand trial. However, lack of memory is an inadequate ground for holding a defendant incompetent. United States v. Stevens, 461 F. 2d 317 (7th Cir. 1972). Here we hold the court did not err in finding at the Rule 37 hearing that the appellant was competent at the time of his plea and sentencing.

Appellant next asserts the court erred in accepting his guilty plea inasmuch as the court did not inquire into the factual basis for his plea nor advise him of the nature of the charges against him. In Byler v. State, 257 Ark. 15, 513 S.W. 2d 801 (1974), we held that it must appear from the record of the plea proceedings that, inter alia, the plea had a basis in fact and the appellant understood the nature of the charges against him. However, in Byler, we observed: “The key question is whether the deficiencies were supplied by the record made at the second [postconviction] hearing.”

Here the record of the plea proceeding discloses that the court meticulously inquired of practically all of appellant’s rights; however, before accepting the plea, the court did not sufficiently inquire into the factual basis of the plea nor apprise appellant of the nature of the charges. As to the latter, at the Rule 37 hearing, appellant’s attorney, who represented him at his arraignment and subsequent plea, testified that he explained to appellant that he was charged with capital felony murder (in commission of a burglary) and what the charge involved — death by electrocution or a life sentence without parole; they discussed possible pleas and defenses, including the plea of not guilty by reason of insanity; all lesser included offenses except involuntary manslaughter and the possible sentences; also, a possible arrangement with the state for a sentence of life imprisonment in return for his guilty plea. He told appellant this would avoid the possibility of the death penalty or a life sentence without parole. Also, at sentencing, the court advised appellant of the maximum penalty with or without the state’s waiver of the death penalty. Obviously, the appellant was fully apprised of the nature of the charges against him.

A factual basis for the plea was also established at the postconviction hearing. Appellant was charged with shooting to death his ex-wife. At the hearing he testified that he had been drinking all day and blanked out. He did not remember firing three shots through the door to gain entrance to her home nor actually shooting his ex-wife. His next recollection “was being in Rogers at the scene of the crime.” He did recall taking his children from the home and going with his father and brother-in-law to turn himself in to the police. Evidence was adduced that the victim of the alleged crime was found dead in her bathroom from a gunshot wound. There was ample evidence adduced at the evidentiary hearing to establish a factual basis for the plea.

Appellant next contends he was denied effective assistance of counsel in violation of the due process clause of the United States Constitution. A duly licensed attorney is presumed competent, and the burden is on the one alleging inadequate representation to show “the acts or omissions of an accused’s attorney result in making the proceedings a farce and mockery of justice, shocking the conscience of the court or the representation is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it.” Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492 (1975); and Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973). Here, admittedly, the negotiated plea was worked out between appellant’s father, appellant’s retained counsel and the prosecuting officials with appellant’s approval. Appellant argues that he was not advised concerning the nature of the charges against him nor the possible consequences. As previously discussed, this was refuted. Appellant next argues that he pleaded guilty with the understanding that he would be paroled after seven years. Again his attorney contradicted this understanding. He only advised the appellant that a commutation was possible and he would assist him in getting a commutation of the sentence and a parole after seven years. He did not assure him that commutation and parole would happen.

Appellant further argues that his attorney never questioned him about the facts of the case and made an insufficient investigation with reference to the facs. However, his attorney testified that he talked to appellant about all the facts appellant knew and he also learned other facts as to what transpired at the scene of the crime from appellant’s father and the police. After investigating the facts, appellant’s attorney was of the opinion that a jury could find aggravating circumstances upon a trial of the capital felony charge, and this was the basis for his recommendation of a guilty plea in return for life imprisonment. A defense counsel has a broad latitude in exercising his judgment in his client’s behalf. Leasure v. State, supra. Here his retained counsel has had forty years’ experience in the practice of law, which included the prosecution and defense of capital murder cases. Certainly, appellant has not demonstrated he was denied effective assistance of counsel.

Finally, appellant argues that, pending his appeal from denial of his postconviction petition, he was denied bail in violation of Ark. Stat. Ann. § 43-2714 (Repl. 1977). This statute provides that on appeal to this court in criminal cases, the defendant shall be permitted bail in all cases except a capital offense. We hold that § 43-2714 provides for the defendant’s right to bail on direct appeal and not on a collateral attack, as here, of his conviction. See also Rule 36.13.

Affirmed.

We agree: Harris, C.J., and Fogleman and Byrd, JJ.


source: Caselaw Access Project

author: George Howard, Jr., Justice.

license: Public Domain

text:
    W. T. FOSTER, d/b/a FOSTER’S SALVAGE YARD v. ARKANSAS STATE HIGHWAY COMMISSION
    77-246
    562 S.W. 2d 298
    Opinion delivered March 6, 1978
    (Division I)

      R. D. Rouse, for appellant.

      Thomas B. Keys and Chris Parker, for appellee.
   George Howard, Jr., Justice.

We are to decide whether the trial court’s decree awarding damages to appellant in the sum of $17,000.00 for the relocation of his junkyard and denying him interest on the award is sustained by a preponderance of the evidence.

THE FACTS

On October 29, 1970, appellee filed a petition for mandatory injunction in the Chancery Court of Lafayette County under and pursuant to Arkansas Highway Beautification Act, Ark. Stat. Ann. § 76-2513 et. seq. (Supp. 1977), requiring appellant to relocate his junkyard.

On December 20, 1971, a default decree was entered and appellant was given thirty-five days within which to relocate his junkyard. However, appellant did not complete the removal of the yard until approximately nine months after the date of the decree. On August 19, 1974, a hearing was held before the trial court to determine the amount of compensation appellant was entitled to. On December 30, 1974, the chancellor entered an order dismissing appellant’s claim for compensation holding that appellant’s claim for compensation constituted a suit against the State. Appellant appealed this holding to this Court and on July 7, 1975, we reversed and remanded the case, holding that under the circumstances, appellant’s claim for compensation did not constitute a claim against the State and that he was entitled to compensation.

On March 21, 1977, the trial court conducted a hearing on appellant’s claim and on June 10, 1977, the trial court entered its decree awarding the appellant the sum of $17,-000.00 for damages and denied appellant’s request for interest on the award. Further, appellant was awarded his cost in the sum of $259.93.

APPELLANT’S CONTENTIONS FOR REVERSAL

1. The sum of $17,000.00 does not justly compensate appellant and the lower court's holding in this regard is against the preponderance of the evidence.
2. Appellant is entitled to interest beginning December 20, 1971.

THE DECISION

I

In reviewing the case de novo, as we must, we are persuaded that the trial court’s decree is supported by a preponderance of the evidence and, accordingly, we affirm the decision.

The evidence reflects that on the date that the trial court’s decree was entered requiring appellant to relocate his junkyard, appellant’s junkyard contained 309 automobiles, five tractors without wheels, one dragline, seven tons of used pipe, eight truck loads of scrap metal and a quantity of scrap iron.

Appellant testified that because of unfavorable weather conditions that adversely affected the grounds of his junkyard, it took him approximately 133 days to relocate his yard; that the task involved the appellant’s personal services and the assistance of his two sons; that the task required the use of machinery — two winch trucks and a bulldozer — owned by appellant; that the reasonable value of the equipment used and the labor expended to complete the job amount to $23,040.00; appellant further testified that he paid his sons in cash and has no record to verify the labor and cost; and that he used his own machinery and equipment, thus, there are no records to confirm the rental cost. Moreover, there is no documentation of any actual out-of-pocket expenses.

The evidence also reflects that the junkyard consisted of eleven acres of land; that appellant owned only one acre in his own right for which he paid a purchase price of $3,000.00 approximately fifteen years ago; that the remaining ten acres belonged to someone else which he rented for $10.00 per month.

Appellant’s appraiser testified that a junkyard the size that appellant was required to vacate could be moved under reasonable weather conditions for $16,800.00.

Burl Creech, an expert witness for appellee and who is a junkyard dealer, testified that he was familiar with appellant’s junkyard and that the cost of labor and rental equipment needed to relocate the yard, even under adverse conditions, would not exceed $4,386.00.

Ken McMurrough, a staff appraiser for appellee, who resided in the same community where appellant’s yard was located, testified that the reasonable cost, including labor and equipment rental, for removing the yard would be approximately $4,950.

The conflicting testimony as to the cost in terms of labor and rental fees for equipment presented a fact question. The trial judge was in a position to observe the demeanor and conduct of the witnesses who testified and we cannot state that his holding is not supported by a preponderance of the evidence.

II.

In Foster v. Arkansas State Highway Commission, supra, we stated that an action under Ark. Stat. Ann. § 76-2513 et. seq. (Supp. 1977), requiring a junkyard owner, as herein, to relocate his yard, is an action in the nature of an eminent domain proceeding.

In Arkansas State Highway Commission v. Muswick Cigar & Beverage Co., 231 Ark. 265, 329 S.W. 2d 173, we also stated that interest on damages for the taking of property in an eminent domain proceeding runs from the date of surrender of possession of the property sought to the date of payment. See also: Ark. Stat. Ann. § 76-536 (Repl. 1957).

Larry Long, witness for appellee, testified in relevant part as follows:

“MR. PARKER: Would you take this picture and show the Court why in your opinion the old location was not in compliance with the State Highway Department?
A. In my opinion, this picture depicts several junk vehicles and several tons of scrap metal that is still in view of the State Highway and is still part of the salvage yard location.
Q. Are you familiar with the present location, where he is located now?
A. Yes.
Q. When was the last time you saw it ?
A. Several months ago, but I saw it also this morning.
Q. Is the present location maintained in compliance with the State Highway Department?
A. No sir. The new location is not in compliance with the State Laws, as such a junk yard.”

We are persuaded that as of the trial date of this cause, appellant had not completed relocating or removing the debris and old automobiles from the old yard, stated differently, appellant had not surrendered possession of the junkyard as of the trial date, consequently, appellant was not entitled to interest on the award.

Affirmed.

We agree.

Harris, C.J., and George Rose Smith and Hickman, JJ.

        See: Foster v. Arkansas State Highway Commission, 258 Ark. 176, 527 S.W.2d 601 (1975).


author: George Rose Smith, Justice.

text:
    ACORN et al v. Dick JACKSON, Mayor of Gurdon, et al
    77-264
    562 S.W. 2d 589
    Opinion delivered March 13, 1978
    (Division I)

      Sieve Bachmann, of Bachmann & Kozinsky, P.A., for appellants.

      John H. Jackson, Gurdon City. Atty., for appellees.
   George Rose Smith, Justice.

This action against the mayor and city council of the City of Gurdon was brought in the Pulaski County Circuit Court. This appeal is from an order quashing the service of summons, on the ground that the action must be brought in Clark County, where the City of Gurdon is situated. We affirm.

Three residents of Gurdon, all members of ACORN (Association of Community Organizations for Reform Now), and ACORN itself, brought the action as an appeal, under the Freedom of Information Act, from the city’s asserted denial of reasonable access to certain public records. The plaintiffs contend that under § 6 of that act they had the option of appealing either to the Pulaski Circuit Court or to the Clark Circuit Court. Ark. Stat. Ann. § 12-2806 (Repl. 1968). In quoting the pertinent part of that section of the statute we have ourselves divided it into subparagraphs to illustrate what we find to have been the legislative intention:

Any citizen denied the rights granted to him by this Act may appeal immediately from such denial
to the Pulaski Circuit Court, or to the Circuit Court of the residence of the aggrieved party, if an agency of the State is involved, or
to any of the Circuit Courts of the appropriate judicial districts when an agency of a county, municipality, township or school district, or a private organization supported by or expending public funds is involved.

The appellants argue that the first five words in our first subparagraph, “to the Pulaski Circuit Court,” should be treated as an independent and third subparagraph, so that all appeals, regardless of the agency involved, could be taken to Pulaski County. It is argued that such a broad interpretation is required by our rule that the Freedom of Information Act is to be liberally construed. Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753 (1968).

We adhere to our rule of liberal construction, but we do not think it should override what seems to us to have been the plain legislative intention. Most State agencies have their principal offices in Pulaski County and, by statute, must be sued there. Ark. Stat. Ann. § 27-603 (Repl. 1962). Hence, when there is a complaint against á State agency under the Freedom of Information Act, it is reasonable to permit the aggrieved person to appeal either to the Pulaski Circuit Court or to the corresponding court in the county of his own residence. The parties arid their witnesses are apt to be found at one place or the other. On the other hand, when a city or other local agency is involved, it is equally reasonable to refer the aggrieved person to the circuit court in the local judicial district, where the parties and the witnesses, are apt to reside. We are not convinced that the legislature meant for the City of Gurdon, for example, to be suable in Pulaski County by citizens of Clark County with regard to their right to have access to records presumably kept at the city’s own municipal headquarters in Clark County.

Affirmed.

We agree.

Harris, C.J., and Hickman and Howard, JJ.


author: John A. Fogleman, Justice.

text:
    Richard F. MORTON and Elizabeth J. MORTON v. Paul TULLGREN et al
    77-241
    563 S.W. 2d 422
    Opinion delivered March 13, 1978
    (Division II)
    [Rehearing denied April 17, 1978.]

      Rose, Nash, Williamson, Carroll, Clay & Giroir, P.A., for appellants.

      Donald J. Adams, of Adams, Covington & Tounes, and Ronald P. Kincade, for appellees.
   John A. Fogleman, Justice.

Appellants Richard F. Morton and Elizabeth J. Morton were held liable to appellees for an alleged violation of the Arkansas Securities Act. Each of the appellees purchased an interest, represented by a certificate of participation, in a limited partnership known as “Mountain Homes I,” for which they paid $12,000. The limited partnership was formed to develop two mobile home parks and two large residential subdivisions. There were two general partners, Venture Development Corporation, a Minnesota corporation, and Mountain Home Investment Corporation, an Arkansas corporation. Richard Morton, an Arkansas real estate broker, was the sole stockholder of the Arkansas corporation and its president. His wife, Elizabeth Morton, was secretary-treasurer. The officers and directors of the Minnesota corporation were Robert W. Brantingham, Maynard T. (Ted) Brantingham, Robert McDonald, Nancy Brantingham and Dennis J. Dyrhaug, all of whom were nonresidents of Arkansas at the time of the formation of the limited partnership. Dyrhaug and Richard Morton solicited prospective limited partners, among whom were appellees. In November, 1974, appellees learned, by reading the Baxter Bulletin, a newspaper, that the limited partnership interests had not been declared exempt from registration by the Arkansas Securities Commissioner and that they had been offered for sale by one who was not licensed as a securities agent. On November 19, 1975, appellees commenced this suit, alleging that Morton sold each a security on or about May 12, 1972. They alleged that the sales by Morton were in violation of §§ 3, 7 and 17(b) of the Arkansas Securities Act, which are Ark. Stat. Ann. §§ 67-1237, -1241, -1251 (b) (Repl. 1966). It was alleged that Morton was acting under the direction and control of the two general partners, and the officers and directors of Venture and of appellant Elizabeth Morton.

Among other defenses, the Mortons pleaded the statute of limitations set forth in Ark. Stat. Ann. § 67-1256(e) (Supp. 1971). That section provided that:

No person may sue under this Section after three (3) years from the effective date of the contract of sale or after one [1 ] year from the date when the person in exercise of reasonable care could have discovered the alleged violation whichever is later, provided, no action may be brought after five (5) years from the effective date of the contract of sale. *****

The chancellor specifically found that appellees did not file their action within three years of the effective date of their respective contracts of sale of the interests or within one year from the date appellees, in the exercise of reasonable care, could have discovered the alleged violations. The court held, however, that the statute of limitations applicable was that provided in § 17 of Act 47 of 1973 [Ark. Stat. Ann. § 67-1256(e) (Supp. 1973)]. This act extended the three year statute to five years and eliminated the provision providing for a limitation of one year after the purchaser could have discovered the alleged violation. In this, the chancery court erred.

It is true, as appellees urge, that no one has any vested right in a statute of limitations until the bar of the statute has become effective. Pinkert v. Lamb, 215 Ark. 879, 224 S.W. 2d 15; Horn v. Horn, 226 Ark. 27, 287 S.W. 2d 586. It is also true that the General Assembly may validly enlarge the period of limitations and make the new statute, rather than the old, apply to any cause of action which has not been barred at the time the new statute becomes effective. See Hill v. Gregory, 64 Ark. 317, 42 S.W. 408. The critical question is one of legislative intent. There is a split of authority on the subject, and it appears that it may be the view of a majority of the jurisdictions passing on the question that amendments extending the period of the statute of limitations apply to causes of action accrued, but not already barred, unless the amendatory act expressly provides otherwise. The view taken in this state, however, is to the contrary, i.e., the amendatory act does not extend the statutory period unless the legislative intention that it do so is expressly stated.

The first time this court squarely addressed the question, it held that the three year statute of limitations on actions on promissory notes in effect at the time the note became due applied, even after a part payment made after maturity of the note and after the passage of an act extending the statutory period to five years, and that the action brought within five years after the part payment but more than three years thereafter, was barred. Durritt v. Trammel, 11 Ark. 183. We said:

We think it therefore unreasonable to hold that a part payment made before the bar of the statute has been perfected creates a new right of action for the recovery of the balance. On the contrary, we think that, although the effect of such part payment is to prolong the period of recovery, yet although the plaintiff avails himself of this prolongation in the action for this purpose, he is nevertheless but in the use of his original remedy upon his original right of action for the recovery of his original debt, neither having been at any time either destroyed or impaired. Entertaining these views we hold that the part payment in question did not take this case out of the act of 1839. And finding no error in the proceedings or judgment of the court below, the latter must be affirmed with costs.

The same rule was applied in Biscoe v. Stone, 11 Ark. 39; State v. Terry, 12 Ark. 133; and Mason v. Howell, 14 Ark. 199. See also, Sullivan v. Hadley, 16 Ark. 129; Duke v. State, 56 Ark. 485, 20 S.W. 600. In Chandler v. Chandler, 21 Ark. 95, we remarked that we had repeatedly held the later act to be prospective in operation, i.e., that it did not apply to causes of action that had accrued when it was passed.

The judicial attitude illustrative of the Arkansas position on this matter was articulated in Hicks v. Lusk & Co., 19 Ark. 692, where we said:

***** Changes in the law of limitations, either by legislation, or fluctuations in the decisions of the Courts, are productive of evil consequences.

See also, Hawkins v. Campbell, 6 Ark. 513. Our approach to the question is founded upon the disapprobation of retrospective legislation by the courts and the resulting strong presumption that statutes are not to be retroactively applied unless there is a clear legislative intention that they be. Baldwin v. Cross, 5 Ark. 510; Couch v. McKee, 6 Ark. 484; Hawkins v. Campbell, supra; Coco v. Miller, 193 Ark. 999, 104 S.W. 2d 209; Schuman v. Walthour, 204 Ark. 634, 163 S.W. 2d 517. See also, Hudson v. Hudson, 219 Ark. 211, 242 S.W. 2d 154; Dean v. Brown, 216 Ark. 761, 227 S.W. 2d 623.

It has been said that statutes of limitation ought to be construed as prospective in operation “unless otherwise expressed or that they cannot have the intended operation by any other than a retrospective construction.” Baldwin v. Cross, supra; Moore v. McLendon, 10 Ark. 512.

Cases such as Dyer v. Gill, 32 Ark. 410, where the intention to make the amendment retroactive is expressed are not applicable here. Cases where the bar of the old statute was complete when the new one was passed present a different question from that with which we are confronted. See Couch v. McKee, supra; Hawkins v. Campbell, supra; Davis v. Sullivan, 7 Ark. 449.

It has long been recognized that where no previous statute of limitations existed, a statute of limitations operates upon demands existing at their passage in the same manner as it does upon those taking effect on the day upon which the act took effect. Baldwin v. Cross, supra; Hawkins v. Campbell, supra; Horn v. Horn, supra. Cases of this nature relied upon by appellee are not applicable. It is, however, recognized that the General Assembly may reduce the period of limitation even as to an existing cause of action, so long as a reasonable time is allowed between the passage of its act and the time the new act takes effect for the bringing of such actions. Steele v. Gann, 197 Ark. 480, 123 S.W. 2d 520, 120 ALR 754.

The absence of a specific repeal of the earlier act by the later is taken to be a significant indication that the General Assembly did not intend that the new statute of limitations be applied retroactively and thereby result in extension of the bar in respect to causes of action which had already accrued. A general repeal as in the later statute is not taken to indicate an intention that the new statute be applied retroactively. Hawkins v. Campbell, supra; Trapnall v. Burton, 24 Ark. 371; Moore v. McLendon, supra. There was only a general repealer here.

We are not unaware of our decision in Johnson v. Beede, 186 Ark. 588, 54 S.W. 2d 413, wherein the question involved was the time limitation on the filing of a petition to exempt a township from a county stock law adopted at a local option election, where the time for filing had been reduced by legislative act after the election but before the petition in question was filed. The argument was that the petitioners had a vested right under the statute existing at the time of the election. We simply held that they had no vested rights. The particular issues with reference to the retroactivity involved here were not treated in the opinion and there is no indication in that opinion that the particular questions we are addressing were raised. Our reliance on Johnson in Horn v. Horn, supra, was only on the basis of the holding as to vested rights. The cases there cited clearly show that we were treating that question only, as they do not involve statutes of limitations. We have previously said that we were not overlooking Johnson, but tacitly held it inapplicable, where we held a statute to be prospective in operation. Hudson v. Hudson, supra. See also, Schuman v. Wallhour, supra, where the question of retroactivity was directly in issue.

The rationale of our holdings that a statute extending the period of limitations is applicable only to causes of action arising after the act becomes effective, unless expressly made retroactive, is not based upon any vested right in the statute of limitations. It is based upon the strong presumption that a legislative act is not intended to operate retroactively. Trapnall v. Burton, supra; Baldwin v. Cross, supra; Couch v. McKee, supra; Coco v. Miller, supra; Schuman v. Wallhour, supra.

Another factor that has a bearing on our consideration of this question is that the cause of action against appellant Elizabeth Morton is based upon the fact that she was an officer of a corporation that was a general partner. To some extent, the same may be said as to the cause of action against Richard Morton. The statute makes every person occupying that position liable to a purchaser, unless he sustains the burden of proving that he did not know, and in the exercise of ordinary care could not have known, of the existence of facts by reason of which liability is alleged in an action such as this. Furthermore, the cause of action was based upon the omission of the sellers of securities to state a material fact necessary to make statements made not misleading. The specific violations of the Arkansas Securities Act alleged and shown were selling unregistered securities which had not been exempted and dealing in them through an unregistered agent. Ark. Stat. Ann. § 67-1237, -1241. Clearly, in this respect, the Securities Act created a cause of action that had not previously existed. In many jurisdictions, including some in which a statute making the statutory period longer is considered to be retroactive, unless made prospective only by statutory language, the question is treated differently, because the limitation is on the right as well as the remedy. The result is that, as to causes of action already accrued at the time the enlarging statute is enacted, the subsequent statute will not operate to extend or enlarge the original limitation period, especially where the language of the statute does not provide for retrospective application. Wilson v. New Mexico Lumber & Timber Co., 42 N.M. 438, 81 P. 2d 61 (1938); Wall v. Gillett, 61 N.M. 256, 298 P. 2d 939 (1956); Bretthauer v. Jacobson, 79 N.J.L. 223, 75 A. 560 (1910); McCrater v. Stone & Webster Engineering Corp., 248 N.C. 707, 104 S.E. 2d 858 (1958); Close v. Potter, 155 N.Y. 145, 49 N.E. 686 (1898); Hibler v. Globe American Corp., 128 Ind. App. 156, 147 N.E. 2d 19 (1958); Blocher v. Harlow, 268 Md. 571, 303 A. 2d 395 (1973); Zitomer v. State, 21 Md. App. 709, 321 A. 2d 328 (1974) .

Since we find nothing to indicate any intention of the legislature to make Act 47 of 1973, extending the statute of limitations as it then appeared as Ark. Stat. Ann. § 67-1256 (e) (Supp. 1971) to be retrospective, the chancery court applied the wrong statute of limitations and the action brought by appellees was barred by the statute of limitations.

The decree is reversed and the cause dismissed.

We agree.

Harris, C.J., and Byrd and Holt, JJ.


text:
    Roger ROWLAND v. STATE of Arkansas
    CR 77-208 & CR 77-209
    562 S.W. 2d 590
    Opinion delivered March 13, 1978
    (Division II)

      Murphy & Carlisle, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

These two cases were consolidated for briefing and submission on appeal. In CR-77-208, appellant Rowland was charged by information filed in the Circuit Court of Madison County on February 14, 1977, with sale of a controlled substance on or about September 28, 1976. In CR-77-209, by information also filed on February 14, 1977, but in the Circuit Court of Carroll County, he was charged with sale of a controlled substance on or about September 10, 1976. He was found guilty of both charges in separate trials. On appeal, he relies on a single point for reversal in CR-77-209. In that case he contends that the circuit judge erred in denying a pretrial motion by his attorney, John William Murphy, under Rule 19.7, Arkansas Rules of Ciminal Procedure, that defendant be granted a continuance or that the state be prohibited from introducing into evidence any material which had not been disclosed to his attorney, John William Murphy, pursuant to Rule 17.1, Arkansas Rules of Criminal Procedure. He urges the same ground, along with two others, for reversal of the judgment in CR-77-208. We find no reversible error on this point.

On March 15, 1977, an omnibus hearing was held in both cases. At this time, appellant was represented by Douglas L. Wilson. The record of that hearing shows that the prosecution stated that it had disclosed all evidence in its possession favorable to the defendant on the issue of guilt. It also shows that the state had furnished all information requested by the defendant for discovery purposes except that books, papers, documents, photographs or tangible objects to be used at the hearing had not been made available to the defendant for inspection and copying, but the order stated that they would be. Prior convictions of defendant upon which the state intended to rely for impeachment had been furnished to defense counsel by the state. The record of the hearing was approved by Wilson as appellant’s attorney.

On July 8, 1977, Wilson filed a motion asking that he be permitted to withdraw as appellant’s attorney, because his fee had not been paid as agreed. Appellant retained his present counsel. On July 18, 1977, the circuit judge advised Murphy that trial in one of the cases would be held on July 25 and the other on July 26. Prior to trial, Murphy filed the motion under Rule 19.7. Attached to the motion as exhibits were the letters written by Wilson and Murphy. The motion and exhibits disclosed that Wilson had advised Rowland of his intention to withdraw by letter dated July 6, enclosing copies of his motions; that Murphy was employed by Rowland; that on July 8 Murphy wrote the prosecuting attorney, informing him of the change in attorneys and requesting copies of the informations and “any other documents which you may have pertaining to the omnibus hearing;” that on July 14, Murphy wrote the circuit judge, asking for a continuance for a reasonable period in order to prepare a defense; that the circuit judge responded by letter dated July 18, 1977, in which he declined to continue the cases, which had already been set for July 25 and 26; and that the prosecuting attorney had not responded to Murphy’s request for discovery. The court’s order permitting Wilson to withdraw was not actually entered until July 22.

In overruling appellant’s motion, the trial judge stated:

*** Well, your motion will be overruled because there was an omnibus hearing in this case and the State provided the information at that time that was required under the rules and the statutes. There were no requests for additional discovery and no request for a Suppression Hearing in this particular case so the rule which you cite is not applicable in this particular case under those circumstances.

When appellant’s new counsel objected and asked that the record show that the information had been furnished to the attorney who had asked leave to withdraw, the circuit judge responded:

Well, there was no order made until 1 was assured that you had been employed by your letter and after that time then 1 did permit him to withdraw but from July the 8th to July the 25th is plenty of time to obtain whatever information was in his possession.

Appellant does not contend that the prosecuting attorney failed to comply with Rule 17.1 as to disclosure or any condition set out in the record of the omnibus hearing. He only contends that the prosecuting attorney did not repeat these disclosures for the benefit of substituted counsel. Appellant relies upon the provision of Rule 19.7 (a) that, if it has been brought to the attention of the court that a party has failed to comply with an applicable discovery rule or with an order pursuant thereto, the court may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, prohibit the party from introducing in evidence the material not disclosed, or enter such other order as it deems proper under the circumstances.

We need not determine the latitude of the trial court’s discretion under Rule 19.7 (a), except to say that the court does have some discretion in the matter and that it was not abused here. The right of discovery is not personal to the attorney representing a defendant. It is the right of the defendant. There is nothing in the rules requiring that there should be repeated disclosures of the same information. There is no doubt that, upon a proper showing, the trial court could have required a second disclosure of the same information. It must be remembered that requiring repeated disclosures of the same information could impose an undue burden on a prosecuting attorney. In this case appellant did not show circumstances that required a repetition of disclosures already made. The letter from the substituted counsel to the prosecuting attorney clearly showed that, more than two weeks before trial and within two days after appellant’s original counsel wrote his letter of withdrawal, substituted counsel knew of the omnibus hearing. One of the purposes of that hearing is to resolve any questions about discovery procedures. Rule 20.3 (a) (ii), Rules of Criminal Procedure. There is nothing whatever to indicate that substituted counsel ever communicated with appellant’s original attorney or that the information he sought would not have been readily available from this attorney.

We do not attach any significance whatever to the fact that the trial judge did not formally grant Wilson’s motion to withdraw until July 22. There is no contention that appellant, his substituted counsel and the judge were not all fully aware of the situation one to two weeks prior to this date.

In CR-77-208, appellant lists two additional points for reversal. The first is that the trial court erred in not admonishing the prosecuting attorney about remarks made in his opening statement and closing argument. We find no abuse of the trial court’s discretion in this regard. The prosecuting attorney, in outlining the evidence the state expected to present stated that Gaylen Hutchinson, a state trooper, who was working undercover to purchase drugs from dealers, had arranged a meeting with appellant to discuss a large transaction in drugs and that they met at Marble. He then stated that there were four young people with Rowland, that these young men were there for the same purpose, and that Rowland finished his transaction with these boys, got back with Hutchinson, and Hutchinson got in a vehicle with Rowland. According to the record, the following statements were made:

MR. KEENAN: *** The defendant was mad or upset. I shouldn’t say really mad but he was upset because these boys had ordered some dope and had ordered to —
MR. MURPHY: Object, Your Honor, unless this can be shown.
THE COURT: What?
MR. MURPHY: We object unless this can be shown.
THE COURT: Well, the jury is told that the statements of both attorneys are not evidence, that you will try the case on the evidence only. Now, let’s proceed.

No further action was requested by appellant. During the trial Hutchinson testified that when he met Rowland, four white males drove up in a Toyota or Datsun, one of whom he knew. He said that they appeared to be around 17 or 18 years of age. He said that two of them got in a car with Rowland and that, at Rowland’s direction, he followed them to a small store, where some discussion took place between Rowland and the four young men, after which Rowland instructed Hutchinson to follow them back to Marble — that he had a business transaction taking place. After these young men left, Rowland complained that one of them had ordered two or three “lids” but only took one, according to Hutchinson, who said that he then offered to buy one of those and that Rowland pulled two “lids” from under the seat of his car and sold one of them to Hutchinson. Hutchinson described a “lid” as a plastic sandwich bag partly filled with marijuana. No objection was made to any of this evidence.

In closing argument the prosecuting attorney made these statements:

*** Now, he’d like you to forget those four young men, those four 17 or 18 year old boys. He’d like for you to forget about that and let’s not think about that, just think about the little bit that he sold to Gaylen but you can’t forget about that, that’s in the evidence. You can’t forget Roger Rowland was in Madison County dealing dope to your children and was mad at them because they didn’t take enough, upset with them because they’d ordered two “lids” and I guess they couldn’t get the money together to buy that other “lid”, $15.00 a half ounce. I can see why Mr. Murphy wants you to forget about that and just think of him as a little dope smoker. *** We got the dope from this one, he wants you to forget Roger Rowland came from Carroll County to Madison County to sell our kids dope. Forget that but you can’t. *** We have a chance to protect those young people from people like him. *** — there’s no getting around it, there’s no entrapment. He afforded the person the opportunity to sell him dope, the person who would not otherwise commit a crime? No, no. That’s not it. The person selling dope to your kids. *** He’s guilty, and then speak out strongly and say dope peddlers stay away from our 17 and 18 year old kids, our 14 year old kids, our 12 year old kids. Stay away from them. We don’t want you selling dope in Madison County to our young people and let the rest of those dope dealers that are wandering around out there, let them know it, too. *** I don’t think we’ll ever get rid of them but by golly we’ll cut down on them a long way when they know it’s going to cost them time in the penitentiary and all that money they’re making, all the money they’re making off our kids is going to go back into this county as a fine, they weigh it.

We will not reverse the action of the trial court in matters pertaining to its controlling, supervising, and determining the propriety of, the arguments of counsel in the absence of manifest gross abuse. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387. We find no abuse of discretion here in view of the absence of any objection, the testimony of Hutchinson to which no objection was made, and the fact that the prosecuting attorney obviously made some of these remarks in response to statements in the closing argument of appellant’s attorney. We also note that the trial judge, in instructing the jury just prior to the arguments, had stated that opening statements and closing arguments of the attorneys are not evidence and that any arguments or statements by attorneys having no basis in the evidence should be disregarded.

We find no merit in appellant’s second point for reversal in CR-77-208. The trial court instructed the jury that the sale of marijuana is punishable by imprisonment in the Department of Correction for not less than three nor more than ten years or by a fine not exceeding $15,000, or by both such imprisonment and fine. Appellant objected to the verdict form submitted to the jury. It was:

VERDICT
We, the jury, find defendant guilty of sale of marijuana and fix his punishment at-
VERDICT
We, the jury, find defendant, Roger Rowland, not guilty.

The jury used the first verdict and filled in the blank thus: Three year prison sentence, $2,000 fine. The only objection made to the form was that it failed to show what the maximum and minimum punishments were — “and/or the fine. ” The circuit judge responded, “I have already instructed them on that.” This was a proper and sufficient answer to the objection made. There is not the slightest indication that the jury was, or could have been, misled. There is no requirement that a form of verdict given a jury show the sentencing alternatives. It is not error to submit a blank form to be filled in by the jury. Stuart v. State, 522 P. 2d 288 (Okla. Cr., 1974). See also, Oden v. State, 41 Ala. App. 212, 127 So. 2d 380 (1961). There is not even any requirement that a verdict form be submitted by the trial judge, although it is certainly the better practice to do so. See Ark. Stat. Ann. §§ 43-2143, -2145 (Repl. 1977); State v. Layton, 332 Mo. 216, 58 S.W. 2d 454 (1933); Stuart v. State, supra; West v. State, 24 Ariz. 237, 208 P. 412 (1922); State v. Hickenbottom, 63 Wyo. 41, 178 P. 2d 119 (1947); People v. Hill, 116 Cal. 562, 48 P. 711 (1897). The jury may prepare and present its own form of verdict. People v. Mack, 115 Cal. App. 588, 2 P. 2d 209 (1931); People v. Hill, supra. In the ordinary case, a general verdict is not actually required to be in writing, but may be announced orally. Atkins v. State, 16 Ark. 568; Dixon v. State, 29 Ark. 165. If a party desires to have a particular form of verdict, or instruction as to the form, it is his duty to prepare a form or an instruction as to the form he deems correct and request the trial court to submit or give it. Spies v. People, 122 Ill. 1, 12 N.E. 865, error dism. 123 U.S. 131, 8 S. Ct. 22, 31 L. Ed. 80 (1887); People v. Wilson, 1 Ill. 2d 178, 115 N.E. 2d 250 (1953), cert. den. 347 U.S. 928, 74 S. Ct. 530, 98 L. Ed. 1080; State v. Fisko, 58 Nev. 65, 70 P. 2d 1113 (1937); Loos v. People, 84 Colo. 166, 268 P. 536 (1928). See also, O’Brien v. State, 39 Ariz. 298, 6 P. 2d 421 (1931).

Cases such as Shelton v. State, 261 Ark. 816, 552 S.W. 2d 216; and Brown v. State, 261 Ark. 683, 550 S.W. 2d 776, have no application here. In Brown, the court did not instruct the jury as to the penalty, as the judge did here, and the verdict form submitted was ambiguous. It should be noted that the defendant presented correct forms of verdict to the court in that case. In Shelton, the court instructed the jury that a prison sentence could be imposed, but failed to instruct the jury that it could levy a fine. The verdict form conflicted with the instruction. This is not the case here. We gave an example of a proper form which would avoid the use of the often ambiguous “and/or” in jury verdicts but its use was not made mandatory.

The judgment is affirmed.

We agree.

Harris, C.J., and Byrd and Hoi.t, JJ.


author: Conley Byrd, Justice.

text:
    ARKANSAS STATE MEDICAL BOARD v. John Q. ELLIOTT, M.D.
    77-258
    563 S.W. 2d 427
    Opinion delivered March 13, 1978
    (Division II)
    [Rehearing denied April 17, 1978.]

      Cearley, Gitchell, Bogará & Mitchell and Eugene R. Warren, for appellant.

      Parllow & Mayes, P.A., for appellee.
   Conley Byrd, Justice.

The Arkansas State Medical Board suspended the license of Dr. John Q. Elliott on the basis that the Doctor had written prescriptions of Quaalude 300 excessively and had written an excessive number of prescriptions of Quaalude 300 for some persons. On appeal the circuit court reversed the decision of the Board because the administrative finding of the Board was in violation of Dr. Elliott’s constitutional rights, in excess of the Board’s statutory authority and was not supported by substantial evidence of record.

The record shows that Dr. Elliott was notified by the Board pursuant to the Administrative Procedure Act, Ark. Stat. Ann. § 5-708 (Repl. 1976), to appear and show cause why his medical license should not be revoked. The notice specifically charged that Dr. Elliott had written prescriptions for Schedule II drugs excessively and had written an excessive number of prescriptions for Schedule II drugs for some persons.

Dr. Elliott personally appeared at the hearing and participated therein without making objection to the charges or requesting that they be made more definite and certain.

The authority of the Board to revoke or suspend a license is given by Ark. Stat. Ann. § 72-613 (Supp. 1977), which authorizes the Board to act when a license holder has been guilty of “unprofessional conduct.” The term “unprofessional conduct” is defined as “grossly negligent or ignorant malpractice.” “Malpractice” is defined by a regulation of the Board to include any professional conduct, unreasonable lack of skill or fidelity in professional duties, evil practice, or illegal or immoral conduct in the practice of medicine or surgery. The regulation says that “Malpractice” should include but not be limited to “(4) the prescribing of excessive amounts of controlled substances to a patient including the writing of an excessive number of prescriptions for an addicting or potential harmful drug to the patient.”

The criteria for Schedule II drugs, Ark. Stat. Ann. § 82-2606 (Repl. 1976), is as follows:

“The Coordinator shall place a substance in Schedule II if he finds that:
(1) the substance has high potential for abuse;
(2) the substance has current accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions; and
(3) the abuse of the substance may lead to severe psychic or physical dependence.”

At the hearing which was held on December 9, 1976, it was shown that Dr. Elliott had been before the Board on November 7, 1974, at which time he had agreed not to write prescriptions for amphetamines. Lieutenant Robert Womack of the Osceola Police Department had filed a complaint against Dr. Elliott with the Arkansas Department of Health.

Samuel R. Probasco, with the Drug Abuse Division of the Arkansas State Department of Health, had investigated Dr. Elliott. His investigation revealed that Dr. Elliott was the only doctor in Blytheville who was writing more prescriptions for Quaalude 300 than could be counted on one hand. He found that the drug stores in West Memphis had turned down Dr. Elliott’s prescriptions “always for one reason youngsters, no physical need.” All of the pharmacists in both Osceola and Blytheville had asked for help because of pure proliferation of the Quaalude 300 drugs. Between 7-21-76 and 11-13-76, one drug store in Blytheville filled 92 prescriptions written by Dr. Elliott, all for Quaalude 300 (30 units) except three. Mr. Probasco mentioned the case of a black male who was arrested in Osceola who had in his possession two prescriptions for Quaalude 300 — one under the name of Michael Johnson and the other one under the name Will Jones — both prescriptions having the same address. Mr. Probasco described the Quaalude 300 pills as having a street value from $3.00 to $4.00 per pill.

In response to a statement from witness Probasco that Dr. Elliott had become a patsy to the people who traffic in drugs Dr. Elliott stated, “Not anymore. Since two weeks ago, three days ago.”

Dr. Elliott testified that some of his prescriptions were for kids he had known. That the people who have used Quaalude 300 told him that mixed with alcohol the drug heightens their sexual performance. He also admitted that he had given the two prescriptions to the black man. When he questioned the man the second time, the man told him he was the brother of the one that had been there before. However, in response to questions from members of the Board, Dr. Elliott stated that when the black male came in “he wanted something for sleep, didn’t want anything wrong, he said.”

We find ample evidence, evidence in fact corroborated by Dr. Elliott, to substantiate the Board’s findings. Dr. Elliott had been prescribing Quaalude 300 for both young and old people and to persons who did not have anything wrong with them. By the Doctor’s own admissions, the Board had ample evidence from which to conclude that he had been a patsy for persons who traffic in illegal drugs. Furthermore, the proof shows that all of his prescriptions were for 30 units of Quaalude 300 and that he had given two prescriptions to one black male under two different names. It follows that the circuit court was in error when it held to the contrary.

Appellee contends that the circuit court should be affirmed because there is no law prescribing the number of drugs that can be prescribed for any particular patient and no law prescribing what constitutes the excessive writing of prescriptions for any one patient. We find no merit to this contention. Subsection (e) of Ark. Stat. Ann. § 72-613 (Supp. 1977), defines unprofessional conduct to mean “violation of the laws of the United States or the State of Arkansas regulating the possession, distribution or use of narcotic or controlled drugs classed in Schedules 1 through 5 of the Arkansas Controlled Substances Act ... .” Also subsection (g) of the statute, supra, defines “unprofessional conduct” to include “grossly negligent or ignorant malpractice.” The giving of two prescriptions to the same man under two different names who admittedly had nothing wrong with him would certainly fall within the category of “negligent or ignorant malpractice.” Furthermore, can one admittedly be a patsy to persons dealing in the drug traffic and not be guilty of “unprofessional conduct” within the meaning of Ark. Stat. Ann. § 72-613 supra? We think not.

Appellee contends that the notice given him denied him his constitutional rights because it did not tell him that he had the right to have counsel and the right to present and cross-examine witnesses. We find no merit to this contention. In the first place the notice complied with the Administrative Procedure Act, Ark. Stat. Ann. § 5-708 (Repl. 1976), which superseded Ark. Stat. Ann. § 72-614 (Repl. 1957). In the next place appellee has cited no authority that places upon an administrative board the same concern for an individual that is required in a criminal prosecution. We note that the Administrative Procedure Act gives to the respondent in an administrative proceeding the right to appear by counsel and to present and cross-examine witnesses, but we know of no authority that places upon the administrative board the duty to warn respondents of such rights. In fact the authorities appear to be contrary to appellee’s position, see Annotation 1 L. Ed. 2d 1865.

Appellee also suggests that the hearing officer or one of the participants in the hearing was biased because he made a pronouncement prior to the conclusion of the hearing that appellee’s license should be suspended. Since this pronouncement of the Board member was made after Dr. Elliott had admitted to being a patsy to people dealing in the drug traffic; had admitted to prescribing the drug to young people to heighten their sexual performance; and had admitted to giving two prescriptions to the same man under two different names, we cannot say that the Board member’s comment disqualified him under Ark. Stat. Ann. § 5-709 (Repl. 1976).

For the reasons herein stated the order of the circuit court is reversed with directions to reinstate the order of the Board.

Reversed and remanded.

We agree: Harris, C.J., and Fogleman and Holt, JJ.


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

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. Lula Martha TRAYLOR
    77-234
    562 S.W. 2d 595
    Opinion delivered March 13, 1978
    (In Banc)

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellant.

      Ray & Donovan, for appellee.
   Frank Holt, Justice.

The court, sitting as a jury, awarded appellee $5,000 death benefits pursuant to the terms of an automobile insurance policy issued to appellee’s decedent by appellant. Appellant asserts the judgment of the trial court is not supported by substantial evidence.

The policy provided coverage from death resulting from “being struck by an automobile.” In denying coverage, the appellant invoked the provision of the policy which provides that coverage is excluded whenever bodily injury is sustained in the course of one’s occupation when engaged “fi]n duties incident to the operation, loading or unloading of, or as an assistant on a ... . commercial automobile.” Appellant argues that the decedent was in the performance of his duties which were incident to the operation, loading or unloading of a truck and there is no substantial evidence to support the court’s finding that the exclusionary clause was inapplicable.

In determining whether there is any substantial evidence to support the findings of the court, we view the evidence, even though contradicted, and all reasonable inferences deducible therefrom in the light most favorable to the appellee. Green v. Harrington, 253 Ark. 496, 487 S.W. 2d 612 (1972). In Blissett v. Frisby, 249 Ark. 235, 458 S.W. 2d 735 (1970), we said:

It is only where there is no substantial evidence to support the verdict, where fair-minded men can only draw a contrary conclusion or where there is no reasonable probability that the incident occurred according to the version of the prevailing party, that a jury verdict on these questions will be disturbed on appeal.

Courts are required “to strictly interpret exclusions to insurance coverage and to resolve all reasonable doubts in favor of the insured who had no part in preparation of the contract.” Security Ins. Co. v. Owen, 252 Ark. 720, 480 S.W. 2d 558 (1972); and First Pyramid Life Ins. Co. v. Thornton, 250 Ark. 727, 467 S.W. 2d 381 (1971).

The decedent, a welder, was employed as part of a crew on a construction project. On the date of the accident, a truck, equipped with an A-frame and hoist, was being used to transport steel beams from a stacked position on the ground to the construction site of a building. The beams were then swung to an overhead position, lowered, positioned, and bolted into place by other crew members. The decedent’s duties, as a hookup man on this particular day, consisted of attaching a steel cable and a guide rope to a beam and guide the beam as it was being attached to the A-frame. This prevented the beam from swinging after being attached to the boom. Another crew member would then transport the beam by the truck to the construction site. When the truck arrived the beam was maneuvered into position by the workers there and the guide rope would be disengaged by them from the beam and cast aside. The positioning of a beam at the site would take at least twenty minutes. It appears that it would take about five minutes for the truck to move from one site to the other. At the time of the accident, the operator of the truck had completed the delivery and positioning of a beam. When he was backing up the truck to return to the stacked beams, the truck hit a depression in the ground dislodging the A-frame and hoist which struck and killed appellee’s decedent. The deceased was rolling up the discarded tag line or rope approximately twenty feet from the truck. He was completely unaware that the truck was moving or that he was in danger until someone shouted a warning to him which was to no avail.

In the circumstances, when we view the evidence most favorable to the appellee as we must do on appeal and strictly construe the exclusionary clause relied upon, we cannot say there is no substantial evidence to support the fact finder that the exclusionary clause does not conclusively preclude recovery of its award of benefits. In other words, the fact finder could fairly infer that the decedent was not in an act incidental to the actual operation, loading or unloading of the truck at the exact time of the fatal incident.

Affirmed.

George Rose Smith, Fogleman and Hickman, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I am unable to see how the majority can possibly find any substantial evidence to support a finding that the decedent was not engaged in duties incident to the loading or unloading of the commercial automobile at the time of his fatal injury. The majority treats the exclusion as if it read, “This insurance does not apply to:

(a) Bodily injury sustained in the course of his occupation by any person while engaged in the operation, loading or unloading of ... a commercial vehicle.”

It doesn’t.

“Incident to” has a definite meaning and is not the least ambiguous. It is not, as the majority has taken it to be, without meaning, so as to be discarded as surplusage, as the majority has disposed of it. Incident, in the sense used in this policy, means “associated with or naturally related or attaching (new duties [incident] to increased rank)” or law: “dependent on or appertaining to another thing: directly and immediately relating to or involved in something else though not an essential part of it.” Webster’s 3rd New International Dictionary. There is no way that what the decedent was doing can be said not to be a duty associated, naturally related, or attached to the loading or unloading of the vehicle transporting the beams, however favorably to the decedent one may view the evidence.

He was coiling the rope, tie line, or tag line that had been thrown down after he had used it to assist in guiding the beam last loaded on the boom on the truck used to transport the beams. He was standing about 20 feet from the truck when he was struck by the boom that fell from the truck as it was backing up for the loading of another beam. The decedent’s son, who was part of the crew putting the beams in place, said that his father was working around the truck, assisting with attaching beams to the boom on the truck .and putting them in place. The decedent hooked a line to each beam to assist in guiding it while it was being transported and properly placed. According to decedent’s son, the rope decedent was coiling would not have been attached to the truck again until his father went out and got another beam. Gary Green, the truck driver, a nephew of the decedent, said that the decedent would tie the steel into the truck and hook up the cables and tie the cable to the beams and the tag line. He said the tag line was used to keep the beam from swinging while attached to the boom on the truck. He testified that decedent had been helping load the truck for a substantial period of time, all that morning.

Viewing the evidence most favorably to the judgment or to the appellee or against the insurance company does not mean that positive, undisputed evidence should be totally disregarded.

The majority says that the fact finder could fairly infer that the decedent was not in an act incidental to the actual operation, loading or unloading of the truck at the exact time he was struck. Conjecture and speculation, however plausible, cannot supply the place of proof. Russell v. St. Louis Southwestern Ry. Co., 113 Ark. 353, 168 S.W. 135. An inference is not a substitute for evidence. Norfolk Coca-Cola Bottling Works v. Krausse, 162 Va. 107, 173 S.E. 497 (1934). See also, Green v. Wilson, 194 Ark. 165, 105 S.W. 2d 1074. The indulgence of inferences will not supply a non-existent fact. Ft. Smith Gas Co. v. Blankenship, 193 Ark. 718, 102 S.W. 2d 75. An inference may not be forced and guesswork is not an allowable substitute. Shelton v. Bruner, 449 S.W. 2d 673 (Mo. App., 1969); Gonzales v. Shoprite Foods, Inc., 69 N.M. 95, 364 P. 2d 352 (1961); Sweeney v. Metropolitan Life Ins. Co., 30 Cal. App. Supp. 2d 767, 92 P. 2d 1043 (1937); Wright v. Conway, 34 Wyo. 1, 242 P. 1107 (1926); Conreaux v. Industrial Comm’n., 354 Ill. 456, 188 N.E. 457 (1933). See also, Missouri Pac. R. Co. v. Davis, 208 Ark. 86, 186 S.W. 2d 20; Russell v. St. Louis Southwestern Ry. Co., supra.

Liability cannot rest upon imagination, conjecture, speculation, guesswork or surmise. Ft. Smith Gas Co. v. Blankenship, supra; Corneaux v. Industrial Comm’n., supra. We have said that a fact finder is not permitted to base a judgment upon mere speculation or conjecture, but that it must be based upon substantial testimony of essential facts or facts which would justify a reasonable inference of such essential facts; and that mere speculation cannot substitute for probative facts, after making due allowance for all reasonably possible inferences favoring the party whose case is attacked. Missouri Pac. R. Co. v. Davis, supra. See also, Green v. Wilson, supra; St. Louis, I. M. & S. Ry. Co. v. Smith, 117 Ark. 655, 174 S.W. 547; Russell v. St. Louis Southwestern Ry. Co., supra; Ft. Smith Gas Co. v. Blankenship, supra.

An inference is a deduction which may be logically drawn by reason from facts, or a state of facts, proven, admitted or known to be true. Black’s Law Dictionary, DeLuxe 4th Ed. p. 917; Shelton v. Bruner, supra; Norfolk Coca-Cola Bottling Works v. Krausse, supra; Cincinnati, N.O. & T.P. Ry. Co. v. Humphrey’s Adm’r., 281 Ky. 432, 136 S.W. 2d 537 (1940); Thompson v. Ezzell, 61 Wash. 2d 685, 379 P. 2d 983 (1963); Gonzales v. Shoprite Foods, Inc., supra; Stambaugh v. Hayes, 44 N.M. 443, 103 P. 2d 640 (1940); Juchert v. California Water Service Co., 16 Cal. 2d 500, 106 P. 2d 886 (1940); United States v. Grow, 394 F. 2d 182 (4 Cir., 1968), cert. den. 393 U.S. 840, 89 S. Ct. 118, 21 L. Ed. 2d 111; State v. Meany, 262 Minn. 491, 115 N.W. 2d 247 (1962); Seavey v. Laughlin, 98 Me. 517, 57 A. 796 (1904); Simon v. Fine, 167 Pa. Super. 386, 74 A. 2d 674 (1950); Ferdinand v. Agricultural Ins. Co., 22 N.J. 482, 126 A. 2d 323, 62 ALR 2d 1179 (1956). See also, Ft. Smith Gas Co. v. Blankenship, supra; Missouri Pac. R. Co. v. Shores, 209 Ark. 539, 191 S.W. 2d 580; Hearnsburger v. McGaughey, 218 Ark. 663, 239 S.W. 2d 17. It cannot be predicated upon mere surmise or conjecture, i.e., the mere possibility that a thing may have occurred or that unproved facts exist. Shelton v. Bruner, supra; Louisville & N.R. Co. v. Mann’s Adm’r., 227 Ky. 399, 13 S.W. 2d 257 (1929); Gonzales v. Shoprite Foods, Inc., supra; Juchert v. California Water Service Co., supra; Wright v. Conway, supra; State v. Meany, supra; Accord, Ft. Smith Gas Co. v. Blankenship, supra. It is more than an idea or motion founded on the probability that a thing may have occurred. Shelton v. Bruner, supra; Sweeney v. Metropolitan Life Ins. Co., supra; Wright v. Conway, supra; Seavey v. Laughlin, supra.

It is very different from supposition, which requires no premise of proven facts, and is only a conjecture based upon the possibility that a thing could have happened or an idea or notion founded on the probability that a thing may have occurred. Miller-Brent Lumber Co. v. Douglas, 167 Ala. 286, 52 S. 414 (1910); Cincinnati, N.O. & T.P. Ry. Co. v. Humphrey’s Adm’r., supra; Clapp’s Parking Station v. Industrial Accident Comm’n., 51 Cal. App. 624, 197 P. 369 (1921); Juchert v. California Water Service, supra; State v. Meany, supra. “Supposition has no legitimate support or habitation in judicial administration.” Louisville & N.R. Co. v. Mann’s Adm’r., supra.

Upon what fact could it be logically and rationally deduced that the decedent’s coiling the rope just previously thrown down to him after the last beam had been swung into place, at the very time the truck was being backed toward him for the purpose of being loaded with another beam, was not incident to the loading of the truck? Viewing the evidence most favorably to appellee does not permit resort to guesswork, speculation, conjecture, surmise, imagination or supposition. It would be necessary to do so here, in order to reach the conclusion that a fact finder could “fairly infer” that decedent was not excluded from the coverage of the insurance policy.

I would reverse the judgment and remand the case for a new trial.

I am authorized to state that Mr. Justice George Rose Smith and Mr. Justice Hickman join in this opinion.


text:
    Allen ARMBRUST, d/b/a ALLEN ARMBRUST CONSTRUCTION COMPANY v. Val HENRY
    77-261
    562 S.W. 2d 598
    Opinion delivered March 20, 1978
    (Division I)

      Turtle, Osterloh & Weber, by. John I. Turtle, for appellant.

      Andrew L. Clark, for appellee.
   George Rose Smith, Justice.

The appellant, a building contractor, pursuant to a contract between the parties, built a residence for the appellee, for which the appellee paid more than $38,500. In the written contract the contractor guaranteed that the entire job would be done in a neat workmanlike manner. The appellee brought this action for damages for breach of that guarantee, alleging improper workmanship in six particulars. The circuit court referred the case to a master, who heard a number of witnesses and made findings of fact disallowing three of the plaintiff’s claims and allowing the other three in the total amount of $4,008.60. This appeal is from a judgment upholding the master’s report in all respects.

At the outset we are confronted by what proves to be a fatal defect in the record before us. No stenographic report was made of the hearing before the master. Neither the oral testimony heard by him nor the exhibits that were introduced are before this court. The appellant did not supply the deficiency by preparing a statement of the evidence, as the statute allows. Ark. Stat. Ann. § 27-2127.11 (Repl. 1962). In the circumstances the record was not abbreviated by agreement or without objection, a procedure also permitted by the statutes. § 27-2127.6. The burden was on the appellant to bring up a record sufficient to show that the trial court was wrong.

In this situation we presume — indeed, we really have no choice except to presume — that the missing testimony supported the trial court’s findings (or here, those of the master). Phillips v. Ark. Real Estate Comm’n, 244 Ark. 577, 426 S.W. 2d 412 (1968). The appellant argues, primarily, that the master’s various findings are not supported by any evidence, but that argument must fail for want of a record. He also suggests that the appellee’s claims are barred by the fact that he paid the contract price before bringing this suit. No such defense was presented by the pleadings, nor does it appear to have been raised in any way in the trial court. We cannot, with no knowledge whatever about the proof that was introduced, hold that this secondary contention is well taken.

Affirmed.

We agree.

Harris, C.J., and Hickman and Howard, JJ.


author: George Rosé Smith, Justice. Carleton Harris, Chief Justice,

text:
    SOUTHLAND MOBILE HOME CORPORATION et al v. David WEBSTER and wife
    77-267
    563 S.W. 2d 430
    Opinion delivered March 20, 1978
    (In Banc)

      Cecil B. Nance, Jr., of Nance, Nance, Fleming & Wood, and Jake Brick, of Brick & Wallin, for appellants.

      Thomas G. Montgomery, for appellees.
   George Rosé Smith, Justice.

In 1973 one of the appellants, Southland, sold a mobile home to the appellees, the unpaid balance of the purchase price to be paid in monthly installments.. The transaction was financed by the other appellant, Westinghouse Credit Corporation. According to the proof offered by both sides, the interest rate was slightly more than 10% per annum and was therefore usurious. After the purchasers had made 39 of the 72 monthly payments they brought this suit to cancel their remaining obligation. The chancellor granted that relief. For reversal the appellants argue that the usurious charge was the result of a good faith mistake on their part. This argument presents a mixed question of law and fact.

The combined contract of sale and security agreement was dated June 26, 1973. It recited $3,916.35 as the balance to be financed and $1,328.85 as the finance charge. The total of $5,245.20 was to be paid in 72 monthly installments of $72.85 each. The interest rate was recited as 10.00%.

A pivotal point of dispute is whether the first monthly installment was due in 30 days (on July 26) or in 45 days (on August 10). The interest charge is usurious either way, but the excess is substantially greater if the first payment was due on the earlier date. We find the preponderance of the evidence to be clearly contrary to the chancellor’s conclusion that the later date was what the parties intended.

The written contract’s adoption of the earlier date is absolutely free from ambiguity. The contract is dated June 26. We copy the only pertinent language in the contract, with the blanks filled in or not filled in as we have shown:

Buyer promises and agrees to pay the Total of Payments as follows: 72 equal successive monthly installments of $ 72.85 each on the _ day of each month commencing* _, 19_ and each month thereafter, or payable otherwise as follows:__
*If no date is inserted in blank, the first installment is payable one month from the date of contract.

Therefore, since the blank following the asterisk was not filled in, the first monthly payment was due on July 26, 1973.

Mrs. Webster, who handled the negotiations for herself and her husband, testified that she was told that the first payment would be due in the following month and that she was not told that it would be due in 45 days. Whoever handled the sale for Southland did not testify. Consequently, on the basis of what happened between the parties on the day of the sale, it is undisputed that the intended date was July 26.

The appellants’ argument to the contrary is based largely on their own unilateral actions. Southland, in calculating the Finance charge and the amount of the monthly payments, had acquired and was using what is referred to as a Wang computer. In the use of this machine the operator would insert a printed form supplied by Westinghouse, the Finance company. The operator would then feed into the machine the necessary data, such as the purchase price, the down payment, the charge for insurance, and the number of payments. The computer would then calculate the Finance charge and the amount of the monthly payment and would type all the Figures in the appropriate blank spaces.

The later 45-day payment date (August 10) comes into the picture because, even though the contract as filled in speciFied the earlier date, the computer was programmed to use the 45-day interval in every case. When two copies of the signed contract were received by Westinghouse at its office in Memphis, a coupon book showing the date of the monthly payments was prepared and sent to the purchasers. The Westinghouse employee who handled the transaction in question testified that, even though the contract was filled in to indicate a 30-day interval, she used the 45-day interval in preparing the coupon book because she knew that Southland used a Wang computer that was set to make its calculations on a 45-day basis. The proof indicates that the Websters, upon receiving the coupon book, actually used the 10th of each month as the due date.

The parties’ intentions are to be determined as of the time the contract was made. Walden v. Fallis, 171 Ark. 11, 283 S.W. 2d 17, 45 A.L.R. 1396 (1926). That is also the date as of which the determination of usury is to be made. Brown v. Central Ark. Production Credit Assn., 256 Ark. 804, 510 S.W. 2d 571 (1974). On that date the Websters signed a contract, prepared by the seller, specifying the 26th of each month as the payment date. No 45-day interval for the first payment was mentioned. Thus the clear preponderance of the evidence establishes the earlier date as the correct one.

The appellants argue, nevertheless, that the fault lay not with them but with the Wang computer. Preliminarily, we should say that it was stipulated that if the author of the Thorndike Encyclopedia of Banking and Financial Tables were called as a witness by the purchasers, he would testify that the contract was usurious by $21.34 if the July 26 date was used and by $5.25 if the August 10 date was used. It was also stipulated that if a certain bookkeeper were called as a witness by the defendants, she would testify that the contract was usurious by 19 cents if the August 10 date was used (and presumably by a greater amount if the July 26 date was used). Both witnesses used a daily interest rate in making their calculations. Of course, there are other ways of computing interest. See, for example, Skelton Motor Co. v. Brown, 231 Ark. 801, 332 S.W. 2d 607 (1960).

Marvin Poole, the owner of Southland, testified that he had been selling mobile homes since 1955. Before 1973 he had calculated monthly payments by means of a chart supplied by Westinghouse. That chart, however, gave the figures only for full months; so Poole made no charge for extra days. He decided to use a Wang computer, because it could make the necessary calculations for intervening days.

After acquiring the Wang computer, Poole had it make two sample computations, one with a 30-day initial interval and the other with a 45-day initial interval. Poole submitted the computations to a law firm for its opinion as to whether the computations were usurious. Both computations involved 96 monthly payments. As we understand the law firm’s response, the 30-day computation, using a monthly payment of $131.13, fell short of 10% interest by a total of 14 cents over the life of the loan, and the 45-day computation, using a monthly payment of $131.67, fell short by 40 cents. Hence the firm approved the machine. We infer that the Wang computer was designed to arrive at a monthly payment that would be on the safe side to the nearest possible penny. In other words, the margin of error for a 96-month contract would be only 96 cents. Thus the 19-cent error found by the bookkeeper is not quite so demonstrably insignificant when it is borne in mind that on a 72-month contract the Wang computer was apparently designed to come within 72 cents of the top lawful limit. Working within such close tolerances might be said to involve a calculated risk. (No doubt, of course, the computer was made to be used principally in states where an excessive interest charge does not invalidate the contract, as it does in Arkansas.)

The appellants, in insisting that they simply made a good faith mathematical error, cite cases such as Sammons-Pennington Co. v. Norton, 241 Ark. 341, 408 S.W. 2d 487 (1966), and Cox v. Darragh Co., 227 Ark. 399, 299 S.W. 2d 193 (1957). In both of those particular cases, however, the initial calculation was attempted by a person who was not skilled in the computation of interest. We found that an honest mistake had been made in a good faith effort to charge only lawful interest. By contrast, we have not been as ready to overlook a mathematical error when responsibility for the calculation of interest had been assumed by a finance company. Ford Motor Credit Co. v. Catalani, 238 Ark. 561, 383 S.W. 2d 99, 11 A.L.R. 3d 1494 (1964). See also our finding of usury in Cagle v. Boyle Mortgage Co., 261 Ark. 437, 549 S.W. 2d 474 (1977), where the excessive charges appeared upon computerized monthly statements.

We have often said, in upholding contracts assailed as usurious, that for a charge to constitute usury the lender must have intended to take more than the maximum rate of interest. Brown v. Central Ark. Production Credit Assn., supra. That statement, needless to say, cannot be taken literally in every situation. A lender can no more purge a loan of usury by saying that he did not intend to charge more than 10% interest than a borrower can contaminate his debt by saying that he meant to pay more than 10%. Our decisions have never implied that usury does not exist unless the parties, upon concluding their agreement, have shaken hands and congratulated each other upon having arrived at a contract calling for only 12% interest.

In the case at bar Southland’s owner had been selling mobile homes for nearly 20 years. Westinghouse is a finance company that participated in the transaction from the outset by furnishing its forms, by paying Southland for its commercial paper, and by preparing the purchasers’ coupon book. In the circumstances Westinghouse was not a stranger to the transaction. See Hare v. General Contract Purchase Corp., 220 Ark. 601, 249 S.W. 2d 973 (1952). Here there was a mistake, but as we said in Holland v. C. T. Doan Buick Co., 228 Ark. 340, 307 S.W. 2d 538 (1957), “it was not a mistake made by erroneous figuring; it was not a matter of declaring one sum due when actually another amount was intended. The amount was arrived at because the wrong formula was used.” We are firmly of the view that in this case the excessive charges, admittedly usurious, cannot be condoned on the theory that a good faith error was made by persons who should in equity be freed from responsibility for the consequences of their own action.

Affirmed.

Fogleman, J., not participating.

Byrd and Holt, JJ., concur.

Harris, C.J., and Hickman, J., dissent.

Carleton Harris, Chief Justice,

dissenting. I cannot agree with the result reached by the majority in this case. The majority affirm the chancellor, but hold that he erred in a finding that I consider to be pertinent in the litigation.

I do not accept the view that the first monthly payment was due to be paid 30 days after the June 26th date, rather than 45 dayd later. While it is true that the space for the commencement date was left blank in the printed contract (which would normally indicate that the first installment was due one month later), a coupon book, denoting the time for the payments, was sent to the Websters reflecting that the first payment was due 45 days later. Furthermore, the computer was set to make its calculations on a 45-day basis and unless this constituted the general practice of the company, certainly the computer would not have been set for that period of time. In fact, the testimony of Mrs. Webster makes clear that this payment was not made until 45 days after the execution of the contract:

“Q. Well, did you get a coupon book?
A. Yes. I did.
Q. Did you make your first payment from the coupon book?
A. Yes, sir.
Q. Okay, And would it have been around August the 10th?
A. Yes, sir. I believe so.”

Thereafter, the payments were made on the 10th of each month. Accordingly, I think it is entirely clear that the chancellor’s finding that the first payment was due 45 days from the signing of the contract was entirely correct; let it be remembered that the contract was executed on June 26th and Mrs. Webster herself said that the payment was sent in “around August the 10th.” Therefore, I am firmly convinced that in calculating the interest, the 45 day interval for the first payment was the proper time element involved.

To me, the facts mentioned have a distinct bearing on another finding by the chancellor, viz, that there was no intent to charge in excess of 10% annual interest. In support of this finding is the fact that the company had just commenced, approximately a month before the contract in question was entered into, the use of the Wang computer. Marvin Poole, the owner of Southland, certainly took steps to ascertain that the calculations of this machine complied with the Arkansas usury law by preparing two sample computations (one with a 30 day interval and the other with a 45 day initial interval, involving 96 monthly payments) and submitting the computations to a reputable Arkansas law firm for its opinion, and thereafter, as stated by the majority, the firm approved the machine.

In Sammons-Pennington Co. v. Norton, 241 Ark. 341, 408 S.W. 2d 487, we reversed the chancellor’s finding that a certain contract was usurious. The opinion reflects that an earlier contract had been entered into, but Norton advised the company that the payments exceeded the sum of $100 per week and he did not desire to pay more than that amount, including interest. The company then prepared a new contract and note to be used in lieu of the first, and the opinion then recites the following facts:

“George W. Sammons, President of SammonsPennington Company, and who resides in Memphis, testified that he knew that the legal rate of interest in Arkansas was 10% simple interest, but he did not know how to figure the amount under the new contract; accordingly, he called the Walter Heller Company to ascertain the correct amount to be charged as interest. The finance company, using ‘Lake’s Monthly Installment and Interest Tables,’ gave him the figure of $3,-182.64 for interest, which was added to the principal sum of $15,943.05.”

It developed on trial that the amount of interest called for under the latter contract was usurious and the contract was cancelled by the chancery court. We reversed, stating:

“Actually, it would seem that we have two lines of cases, the line of demarcation between usurious and non-usurious contracts being rather slight. It appears that, in determining whether a usurious charge has been made, all attendant circumstances must be taken into consideration. [My emphasis.] When this is done, we think it is plain that the overcharge in the instant litigation was the result of an error, made in good faith, rather than being based on an intent to violate the usury law.”

The court further commented that “it seems rather ridiculous that any concern would risk cancellation of a principal debt of nearly $16,000 (not counting interest), in order to receive ‘approximately $57 to $60’ excess interest.” Likewise, in Davidson v. Commercial Credit Equipment Corporation, 255 Ark. 127, 499 S.W. 2d 68, we found that the maximum overcharge would amount to five cents per month or $3.00 over the five-year term in which the indebtedness was to be retired. Commercial Credit, in computing the finance charge, used a chart prepared by Financial Publishing Company of Boston, Massachusetts, and the opinion reflects that slight variations in results could be reached by use of other methods, and we again commented that “it would be ludicrous to think one would risk $20,000 in an effort to collect $3.00 or $4.00 more.” That opinion also points out, “the use of usury will not be presumed, or imputed to the parties, and will not be inferred if the opposite conclusion can be fairly and reasonably reached.” (My emphasis.) Several cases are cited in support of this statement.

I am certainly in accord with enforcing the constitutional prohibition against usury and have written several opinions myself where we have found the transaction to be usurious, but the penalty of cancelling the entire indebtedness is so great that I feel that the statement in Davidson, heretofore quoted, that usury should not be inferred if the opposite conclusion can be fairly and reasonably reached, should be given close consideration. Here, as stated, I am convinced that the first payment was due 45 days later. Taking the computation of appellees’ expert that an excessive charge on the August 10th date would be $5.25 over a six-year period, we have an excessive interest charge averaging approximately 87 1/2 cents per year. Even if we take the July 26th date, with excess total interest of $21.34 (which the majority say is the proper finding and with which I very much disagree), we still have an excess average interest charge of only approximately $3.50 per yaar. Other evidence offered reflected 19 cents overcharge for the six-year period.

Be that as it may, I am aware that any amount over 10% is an improper charge, but the cases cited (and there are numerous others) denote that the matter of intent has a great effect upon whether a transaction is held to be usurious. Even in the field of criminal law, the penalty for unintentional crimes is much less than for intentional crimes, but here the Court majority is subjecting appellant to the same penalty that a “loan shark,” who set out to charge 40% interest, would receive.

Earlier I quoted from Sammons-Pennington to the effect that in determining whether a usurious charge has been made all attendant circumstances must be taken into consideration. Here, we have a company using a new machine, with which it lacked experience or familiarity. The company obtained an opinion as a matter of trying to comply with the constitutional provision in issue; the amount of interest exceeding 10% is so minimal that one would have to be an utter and comple simpleton to jeopardize a contract involving several thousand dollars by intentionally collecting such an amount of interest. It is little wonder that the trial court found that there was no intent to violate the usury laws.

I would reverse.

      A coupon book is sent to borrowers showing .the date for payments, and the proper coupon is sent in with each payment to the company.


text:
    B.S.C., INCORPORATED v. Robert W. McKINNEY et al
    77-286
    562 S.W. 2d 600
    Opinion delivered March 20, 1978
    (Division II)

      Jackson & Vowell, for appellant.

      Epley & Epley, Ltd., for appellees.
   Conley Byrd, Justice.

Appellant B.S.C., Incorporated, a materialman in seeking to enforce a materialman’s lien against the property of appellees, Mr. & Mrs. Robert W. McKinney, instead of giving the ten day notice required by Ark. Stat. Ann. § 51-608 (Repl. 1971), and filing with the circuit clerk “a just and true account of the demand due or owing to him” within 120 days as required by Ark. Stat. Ann. § 51-613 (Repl. 1971), filed suit against appellees and one Robert Hobar as the alleged contractor of the appellees. After the 320 days had expired appellees amended their answer to show that the contract for the construction of the improvements was entered into with Dogwood Enterprises, Inc., of which Robert Hobar was apparently an officer or agent. Appellant at that time admitted its error as to the identity of the contractor to whom the materials were furnished and offered to amend its complaint. Pursuant to the appellees’ objection and motion, the trial court denied appellant’s proffered amendment and dismissed the action on the basis that since the contractor was a necessary party, the lien was not perfected within the 120 days prescribed by Ark. Stat. Ann. § 51-613 (Repl. 1971). Appellant has appealed contending that the lien statutes as interpreted and applied by the trial court denied appellant equal protection of the law.

Appellant points out that the perfection and enforcement of mechanics’ and materialmen’s liens is controlled by Ark. Stat. Ann. § 51-601 et seq. (Repl. 1971). Under Ark. Stat. Ann. § 51-613 (Repl. 1971), it had 120 days in which to perfect his lien by filing with the clerk. Had it followed that procedure, then it would have had 15 months under Ark. Stat. Ann. § 51-616 (Repl. 1971), in which to amend its pleadings to make the proper contractor a party. However, since it elected to proceed by filing suit, which the law permits, it was placed in a different classification with respect to amending his complaint to make the proper contractor a party to the action because under the procedure appellant followed, it was limited to 120 days. Consequently, appellant concludes that the classification does not rest upon a constitutionally reasonable basis.

The error in appellant’s argument is his premise. A review of Ark. Stat. Ann. § 51-601, supra, shows that a lien can be perfected only “upon complying with the provisions of this Act.” Since the Mechanics’ and Materialmen’s Lien Act (Ark. Stat. Ann. §§ 51-604 — 51-626) permits an action to be filed by the person claiming the lien and requires that the contractor be made a party defendant, we have held that when the materialman files a proper action within the time limit of 120 days such substantial compliance on the part of the materialman will constitute a perfection of the lien. However, when the materialman merely files an action within 120 days against the property owner without making the contractor a party, the lien is not perfected within the provisions of the Mechanics’ and Materialmen’s Lien Act, Burks v. Sims, 230 Ark. 170, 321 S.W. 2d 767 (1959). Thus as can be seen the 15 month provision of Ark. Stat. Ann. § 51-616 (Repl. 1971), does not come into play until a lien has been perfected. It therefore follows that the classification between a lien claimant who proceeds pursuant to Ark. Stat. Ann. § 51-613 (Repl. 1971), and one who makes a substantial compliance is the same — because it is the perfection of the lien that is involved.

Affirmed.

We agree: Harris, C.J., and Fogleman and Hoi.t, JJ.


text:
    BANK OF OZARK v. Georgia Lavada ISAACS et al
    77-334
    563 S.W. 2d 707
    Opinion delivered March 20, 1978
    (Division II)
    [Rehearing denied May 1, 1978.]

      A. Jack King and Neva Belcher King, for appellant.

      Douglas W. Parker, for appellees.
   Conley Byrd, Justice.

Unfortunately, we must dismiss this appeal because of the appellant’s failure to comply with Rule 9(d). The abstract as presented to this court contains neither the pleadings nor the decree of the trial court. The abstract contains a total of five pages of the testimony presented and four of those pages are excerpts from the record. In addition, the appellant instead of abstracting the exhibits, has photographed some mortgages, a credit life insurance policy, a note and some ledgers showing loans and possibly some payments.

Rules 7, 8 and 9 of the Supreme Court Rules, found in the pocket part of Volume 3A of Ark. Stat. Ann. (Repl. 1962), cover the duties of the filing of Abstracts and Briefs.

Rule 8 requires the briefs to be printed on nonglazed paper on pages 6 3/4 by 10 inches. It also requires Clear Roman type using 12 point type expanded on a 16 point slug. The uniformity of the page size makes it possible for the clerk’s office to maintain a uniform filing system for the briefs. It also makes it easier for Justices of this Court to transport the briefs (most of the Justices do a considerable portion of their brief reading at home on nights and weekends). The size of type required is for the purpose of enabling the Justices to more easily read the information set forth therein. Since the individual Justices are often required to read from six to ten hours at a time (sometimes all night) one can readily understand that the size of the print affects the readability of the briefs — for example the abstracts and briefs for the weekly conference on March 13, comprise 1697 pages.

Rule 9(a) leaves indexing optional with the lawyer preparing the abstract and brief. However, as many lawyers have discovered during oral argument, an index in an abstract covering more than 40 pages in the brief is most helpful.

Rule 9(b) covers the Statement of the Case. This rule suggests that the Statement not exceed two pages in length. The purpose of the Statement of the Case is to introduce the parties to the Court and to tell the Court enough about the litigation and the action taken by the trial court for the individual Justices to have some comprehension of the points relied upon for reversal.

Rule 9(c) covers the designation of the points relied upon for reversal.

Rule 9(d) takes up the matter of abstracting. If the lawyer in preparing the abstract will remember that the Supreme Court Justices have never heard of his case until they pick up the brief to read it, the lawyer will have a better comprehension of what is required in abstracting. Furthermore, since the purpose of an appeal is to determine whether the trial court has committed error, it follows that it is going to be necessary for the individual Supreme Court Justice to start down the same path that the trial court took in determining the issues about which the appellant complains. A lawsuit is started by the filing of a complaint and the issuance of a summons. The civil code then gives the defendant twenty days to answer. Furthermore, every lawsuit is concluded by some sort of judgment or decree. Therefore, since the trial court had to wade through the complaint and answer before entering an order, it is almost axiomatic that the Supreme Court Justices must wade through the same pleadings and the decree entered before they will be in a position to understand what the trial court was ruling on. Where evidence is presented and appellant contends that the trial court misapplied the law to the facts, it is also necessary to abstract the pleadings, the evidence and any of the exhibits upon which the appellant relies to demonstrate error. Evidence in a vacuum — i.e. without knowing the respective contentions of the parties before the trial court — is ordinarily insufficient to require a reversal of a judgment or ruling of the trial court.

It is a rare occasion when the photostating of a written instrument complies with the abstracting requirements of Rule 9(d). It is only permissible when the overall view of the written instrument affects its credibility and even then the lawyer should abstract the exhibit and in addition point out that a photostatic copy is enclosed in the pocket part of the brief. (Many photostats enclosed in the brief before this Court are of such poor quality that the individual Justices find difficulty in reading them).

Since the abstract here fails to contain the pleadings or the decree of the trial court, it is impossible for us to read the five abstracted pages of the testimony with any comprehension of the issues that were before the trial court or how the trial court ruled with respect thereto. It necessarily follows that the abstract does not comply with Rule 9(d). Dairyland Insurance Company v. Carter, 261 Ark. 795, 551 S.W. 2d 211 (1977). See also, G.R. Smith, Arkansas Appellate Practice: Abstracting the Record, 31 Ark. L. Rev. 359.

Affirmed.

We agree: Harris, C.J., and Fogleman and Holt, JJ.