author: John I. Purtle, Justice.

text:
    Mark Alan COOK and Ricki Lee HOWARD v. STATE of Arkansas
    CR 87-39
    732 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987

      Honey & Rodgers, P.A., for appellants.

      Steve Clark, Att’y Gen., by: J. Blake Hendrix, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellants were charged by information and convicted of possession of a scheduled narcotic and possession with intent to manufacture or deliver controlled substances in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1985). The defendants were found guilty at a trial before the court, and each was sentenced to a term of forty years and a fine of $25,000. For reversal the appellants contend that there was no probable cause for the search of their vehicle and the court erred in failing to suppress the evidence which was obtained without a search warrant. We find no reversible error and affirm the sentences.

This case will be determined by the testimony of the arresting officer, Mike Brown, who was an eleven year veteran with the state police force. He testified he had made hundreds of arrests on marijuana and other narcotics charges. The officer stated that on October 22, 1986, he noticed the vehicle in which the appellants were riding as it drove along the interstate highway. The appellants’ vehicle gained the officer’s attention when it crossed over the lane marker two or three times. The officer thought they might be driving under the influence of alcohol and stopped them. He went to the driver’s side and asked Cook for his driver’s license. He stuck his head inside the rolled-down window when he was asking for the driver’s license. He asked Cook to exit the vehicle and to go to the back of the car where he questioned him. He told Cook that he had stopped them because they were weaving across the lane markers. Cook informed the officer that the car was weaving because it had been wrecked and was pulling to the right. After questioning Cook, and learning that the vehicle was owned by Howard, he allowed Cook to return to the vehicle. The officer then went to the passenger’s side to discuss ownership and insurance with the other appellant. The officer testified that as he approached the passenger’s side, he aimed his flashlight through the window and noticed an ice chest on the floorboard and a small piece of marijuana nearby. After getting Howard out of the vehicle, the officer reached inside of the vehicle and picked up the piece of marijuana.

After having the owner-passenger go to the rear of the vehicle, the officer opened the glovebox and found a baggie of marijuana, some hemostats, and two small bags of white crystalline powder. This powder turned out to be cocaine. The officer then placed appellants under arrest for possession of marijuana. Another officer had been called to the scene, and one of the defendants was placed in Brown’s vehicle and the other was placed in the other officer’s vehicle.

With the appellants handcuffed and placed in the patrol cars, the officer then went back and searched the interior of the vehicle. He found a couple of grip bags in the back seat. He unzipped them and found a plastic baggie of off-white powder. The officer stated that there was an odor coming from the bag and that he had previously smelled this odor when he walked up to the driver’s side of the vehicle. The substances seized turned out to be prohibited substances.

The question for review is whether or not the officer had probable cause to search the interior of the vehicle, and specifically whether he had the right to open the zipped bags found inside the passenger compartment. We start with the basic premise that a warrantless search is unauthorized. However, many exceptions to the Fourth Amendment have been found to exist, including an exception relating to automobiles. The only ground for suppression argued in the trial court was that the search violated A.R.Cr .P. Rule 14.1. This Rule, in pertinent part, states as follows:

(a) An officer who has reasonable cause to believe that a moving or a readily movable vehicle is or contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way or waters or other area open to the public ....

In reviewing a trial judge’s ruling on a motion to suppress, we make an independent determination based on the totality of the circumstances. We reverse only if the trial judge’s ruling was clearly against the preponderance of the evidence. See Stone v. State, 290 Ark. 204, 718 S.W.2d 108 (1986). In United States v. Ross, 456 U.S. 798 (1982), it was held that where a police officer who has probable cause to believe a stopped vehicle contains prohibited substances which are subject to seizure, the officer may conduct a search as though a magistrate had authorized a warrant particularly describing the place to be searched. The federal courts allow greater searches than are authorized by Rule 14.1. Therefore, we must look to Arkansas cases for a determination of the question here on review.

In the case of Rowland v. State, 262 Ark. 783, 561 S.W.2d 304 (1978), after noting that the success of the search did not validate the search if it was unlawful in its inception, we went on to state: “Whenever a police officer has reasonable cause to believe that contraband is being unlawfully transported in a vehicle, that vehicle may be the object of a warrantless search, but the right to search and the validity of the search are dependent upon the reasonableness of the cause the searching officer has for believing that the contents of the automobile offend against the law.” The appellant relies on Sanders v. State, 262 Ark. 595, 559 S.W.2d 704 (1977), and Moore v. State, 268 Ark. 171, 594 S.W.2d 245 (1980). Neither case is on point with the present facts. In Sanders a suitcase or locker in the trunk of a taxicab was searched without a warrant. This search and seizure was held to be illegal. In Moore a shaving kit was found hidden in the trunk of an automobile after the driver and occupants had been removed and arrested.

In the present case there is no serious argument that the arresting officer did not have a valid reason to stop the automobile in which the appellants were riding. The facts of this case are not significantly different from those in Berry v. State, 263 Ark. 446, 565 S.W.2d 418 (1978), where the officers stopped a vehicle because the driver had tried to elude them. In Berry we stated:

The plain-view doctrine came into play when one officer looked into the vehicle and saw what he recognized as narcotics paraphernalia. The officer then had probable cause for believing that other areas in the car might contain contraband. A thorough search of the vehicle was therefore warranted. The officers were justified in searching the briefcase, just as a search of a suitcase was upheld in similar circumstances in United States v. Finnegan, 568 F.2d 637 (9th Cir. 1977).

We faced a factually similar situation in Daigger & Taylor v. State, 268 Ark. 249, 595 S.W.2d 653 (1980). Daigger and Taylor were in an automobile which was lawfully stopped by the police and the vehicle was searched. A search of Mrs. Daigger’s purse, which was found between the front seats of the vehicle, discovered LSD. In Daigger, we relied upon A.R.Cr.P. Rule 12.4, which states:

(a) If, at the time of the arrest, the accused is in a vehicle or in the immediate vicinity of a vehicle of which he is in apparent control, and if the circumstances of the arrest justify a reasonable belief on the part of the arresting officer that the vehicle contains things which are connected with the offense for which the arrest is made, the arresting officer may search the vehicle for such things and seize any things subject to seizure and discovered in the course of the search.
(b) The search of a vehicle pursuant to this rule shall only be made contemporaneously with the arrest or as soon thereafter as is reasonably practicable.

We hold that the initial stop was lawful in this case. The discovery of the initial evidence was inadvertent and its incriminating nature was immediately apparent. The officer testified that he smelled narcotics before unzipping the bag which was found inside the passenger compartment. From the facts stated and the cases listed above, we hold that the search and seizure in this case was in full compliance with the Arkansas Rules of Criminal Procedure. Therefore, the case must be affirmed.

Hickman, Dudley, and Hays, JJ., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    Paul CORNETT and Michael SMITH v. Michael PRATHER
    87-89
    737 S.W.2d 159
    Supreme Court of Arkansas
    Substituted Opinion on Rehearing delivered October 5, 1987

      Mashburn & Taylor, by: W.H. Taylor; and Putman & Maglothin, by: Jennifer Morris Horan, for appellee.

      Ray Bunch, for appellee.

      Hickman, J., concurs; Glaze, J., would deny rehearing. Original opinion delivered July 20, 1987.

   John I. Purtle, Justice.

The petition for rehearing is granted because we originally limited the appeal to the sole question of whether or not the jury verdict was supported by any substantial evidence. The issue was so limited by our Per Curiam styled Cornett v. Prather, 290 Ark. 262, 718 S.W.2d 433 (1986). We now hold that the appeal should not have been so limited, and reverse and remand for a new trial.

This appeal involves a defamation action brought by appellee Michael Prather against appellants Paul Cornett and Michael Smith. The complaint alleged that the appellants published defamatory statements concerning the appellee, who at the time of said publication held the rank of Captain/ Chief Deputy for the Benton County Sheriff’s Department. The case was tried before a jury and a verdict was rendered against the appellants in the amount of $50,000 upon a specific finding by the jury that the appellants had “negligently published defamatory statements” concerning the appellee. Appellants subsequently moved for judgment notwithstanding the verdict, assessing as error the insufficiency of the evidence and the trial court’s failure to classify the appellee as a “public official.” This motion was denied by the trial court.

In the November, 1986, Per Curiam, we considered the motion for a JNOV to be a standard motion pursuant to A.R.C.P. Rule 50. However, in the petition for rehearing the appellants point out that the motion may have been denominated Motion for Judgment Non Obstante Verdicto but that in substance it clearly was a motion for a new trial based upon the failure of the court to require the jury to find “actual malice” on the part of the appellants.

At the close of the evidence the trial court gave instruction #11, which defined the term “negligence” as set out in other instructions. The instruction also defined “actual malice” to mean knowledge that the statements were false or that the statements were made with reckless disregard for the truth. Petitioners offered their own instruction defining “actual malice.” This instruction was refused. The court submitted the case to the jury on three verdict forms, which are set out below:

VERDICT FORMS
We, the Jury, find for Plaintiff, Mike Prather, and find that Defendants, Paul Cornett and Michael Smith, negligently published defamatory statements concerning the Plaintiff and fix Plaintiff’s damages at $50,000.00.
S/Alvin L. Felkins, Foreperson Filed of record March 28, 1986.
We, the Jury, find for Plaintiff, Mike Prather, and find that Defendants, Paul Cornett and Michael Smith, published defamatory statements concerning Plaintiff as a result of actual malice or ill-will and fix his damages as follows:
Compensatory damages $_
Punitive damages $_
FOREPERSON
We, the Jury, find for Defendants, Paul Cornett and Michael Smith.
FOREPERSON

The verdict forms obviously did not require the jury to determine whether “actual malice” existed because the jury was given the option of finding that the appellants had “negligently” defamed the appellee. Petitioners timely objected to the “negligence” verdict form. The brief in support of the motion for JNOV stated:

It is respectfully submitted that the jury verdict must be set aside as a matter of law [because] ... the plaintiff was a “public official” as a matter of law as defined by the relevant federal constitutional standard .... [T] he jury must find actual malice before a verdict may be allowed to stand. They did not and the verdict must be set aside.

The trial court made no determination whether the plaintiff was a public official. Whether an individual is a “public official” may be a mixed question of fact and law, but it is a matter which should be determined by the trial court before the case is submitted to the jury. Rosenblatt v. Baer, 383 U.S. 75, 88 (1966).

Although the motion in this case cited Rules of Civil Procedure Rule 50 and was entitled Motion for Judgment Notwithstanding the Verdict, it clearly stated grounds for a new trial set forth in Rules of Civil Procedure Rule 59(a), and was timely filed. We have hesitated to accept form over substance in many cases. For example, in Fort Smith Symphony Orchestra, Inc. v. Fort Smith Symphony Association, Inc., 285 Ark. 284, 686 S.W.2d 410 (1985), we stated that “pleadings shall be liberally construed so that effect is given to the substance of the pleading rather than the form.” The same construction should be given to motions. Courts should not be guided blindly by titles but should look to the substance of motions to ascertain what they seek. It would not be in the interest of justice and fair play to be blindly guided by the title of a motion or pleading. We continue to abide by the well-established rule that a pleading will not be judged entirely by what it is labeled but also by what it contains.

We do not fully agree with the appellant’s argument that the jury was prevented from finding “actual malice.” However, it is fair to say that the jury was not required to find “actual malice” because the verdict returned by the jury found that the appellants had “negligently” defamed the appellee. On retrial the court will determine whether the appellee was a “public official.” If the court determines that the appellee was, in fact, a “public official,” the jury will then be required to find “actual malice” for the appellee to recover.

Reversed and remanded.

Hickman, J., concurs.

Glaze, J., would deny.

Darrell Hickman, Justice,

concurring. I concur with the result but write to express myself on one issue.

The appellee was and is a “public official” as a matter of law and that ought to be that. Absent evidence of malice, and none has surfaced so far in the suit, it might be disposed of on summary judgment. See Lancaster v. Daily Banner, 274 Ark. 145, 622 S.W.2d 671 (1981).


text:
    DONGARY HOLSTEIN LEASING, INC. v. James C. COVINGTON, d/b/a WHISPERING PINES DAIRY
    87-40
    732 S.W.2d 465
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987
    [Rehearing denied September 14, 1987.]

      Jackson, Jackson, Loving & Gutman, by: Gary D. Jackson; and Brown & Kesl, by: Marjorie M. Kesl, for appellant.

      Scott R. Donaho, for appellee.

      Hays, J., would grant rehearing.

   John I. Purtle, Justice.

The appellee was awarded a jury verdict on his negligence counterclaim to a complaint for breach of contract. Motions for J.N.O.V. and for a new trial were denied. Arguments for reversal are: (1) that the verdicts were inconsistent; (2) that the verdicts were not supported by the evidence; (3) that the evidence was insufficient to support the award of punitive damages; (4) that the trial court erred in denying the motion for J.N.O.V.; and (5) that the trial court erred in denying the motion for a new trial. We do not find reversible error except that there was no evidence to support the award of punitive damages against the appellant.

On January 26, 1983, appellant and appellee entered into contracts for the lease of thirty holstein milch cows. On March 25, 1983, appellant and appellee entered into a second contract for the lease of an additional thirty cows. Each lease was payable in monthly installments of $1,384.50 over a period of sixty months. The appellee was allowed to select each batch of thirty cows from herds owned by Bookout Holsteins, Inc., from whom appellant purchased the cows. Appellant, Dongary Holstein Leasing, Inc., never took physical possession of the cattle.

On January 26, 1983, the appellee and his wife and father went to Texas for the purpose of discussing a contract for lease of dairy cows to be used in appellee’s dairy operation in Lonoke County, Arkansas. John Newton, president of Dongary, met them and drove them to Dublin, Texas, where they selected thirty milch cows from a herd owned by Bookout. The cows were sold on the spot to Dongary, which in turn leased them to appellee. Most, if not all, of the papers were signed at the Bookout location. Some of the forms had been prepared by appellant’s home office in Denver, Colorado. Dongary had previously purchased some 300 dairy cows from Bookout and leased them to other parties.

A second batch of thirty cows was subsequently selected by the appellee from Bookout’s dairy operation in Indiana. Although John Newton arranged for the Covingtons to go to Indiana to select the other cows and paid for at least a part of their expense in making the trip, he did not personally accompany them to Indiana for selection of the second group of holsteins. The second group of cows was the basis for the March 25, 1983, lease agreement.

One of the cows selected from the Texas herd subsequently turned up with brucellosis. This cow was replaced by Bookout and knowledge of the incident was extended to Mr. Newton. About a half a dozen of the cows selected from the Bookout herd in Indiana turned out to be “bangy”, i.e. either having brucellosis or carrying the disease. These cows were also replaced by Bookout.

The testimony is sharply divided as to what happened between the time the first diseased cow was discovered and the time the appellee notified the appellant to come get the cows because he could not longer make the payments on the lease. The appellee and his witnesses testified that after discovery of the diseased cow it was necessary to start testing (bleeding) the cows routinely and that such procedure caused the cows to reduce production of milk. The chief result of a cow with brucellosis is that she will abort. When a cow aborts she does not ordinarily commence producing milk as she would if she calved in a normal manner. In many instances the cows do not breed back as soon after aborting as they would after dropping a calf in a normal manner. Since she does not come into production until she calves, this slows up the dairy business. Evidence indicated that the prolonged feeding of cows, which were either not in production or in reduced production, contributed to appellee’s financial inability to continue paying on the lease.

The appellee notified the appellant in November, 1983, to come pick up the cows. The cows were not picked up by the appellant until June of 1985. During this period of time the appellant, according to testimony presented at the trial, continued to lose money as a result of the brucellosis being brought into his herd from the Texas and Indiana operations of Bookout.

The briefs in this case are of minimal help in resolving the issues. It is fairly obvious from the record and the briefs that Covington stopped paying on the lease in the belief that he was justified in doing so because he felt appellant was responsible for his inability to comply with the terms of the lease.

The appellee stopped making payments on the lease in November of 1983, but subsequently resumed making payments pursuant to an agreement made in April of 1984. After the appellee again stopped payments, the appellant exercised an option to have the cows returned and to sue for damages for breach of contract. The amount they claimed under the contract, about $140,000, was the amount of the two leases less the amount paid by the appellee. The appellee answered and counterclaimed for damages based on negligence. The jury returned a verdict finding that appellee had breached the contract but that appellant’s damages were zero. The jury also found that appellee was damaged as a result of appellant’s negligence in the amount of $75,000. The jury awarded appellee punitive damages in the additional amount of $15,000.

As to the award of punitive damages, we will simply point out that punitive damages should be imposed to punish a wrongdoer and to deter others from similar conduct. Arkansas Model Instructions 2217 states that before punitive damages may be imposed, there must be a finding that the defendant “knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in the reckless disregard of the consequences from which malice may be inferred.” In the recent case of Louisiana and Northwest Railroad Company, et al. v. Willis Administrator, 289 Ark. 410, 711 S.W.2d 805 (1986), we discussed some of the same issues as we must decide in this case. In that case we reversed and dismissed the punitive damages award and affirmed the award for compensatory damages. We also reaffirmed our often repeated holding on matters of punitive damages where we stated: “Negligence alone, however gross, is not sufficient to sustain such an award.” Additionally, we stated: “Gross negligence, without willfulness, wantonness, or conscious indifference, does not justify infliction of punitive damages.” We find no evidence in the record to support the award of the punitive damages.

It is undisputed that Covington refused to continue making the lease agreement payments. His reason for not doing so was that he did not have the money as a result of the disease-infected cattle being introduced into his herd. This, he says, was caused by the negligence of the appellant in allowing the diseased cattle from Bookout to be transferred to the appellee. In effect, he is saying that he stopped paying on the contract because of the prior breach by the appellant. We hold that there was sufficient evidence to support a recovery against the appellant because of negligence on its part.

In this case the facts are not materially disputed; the disagreement is on matters of the application of law to the facts. We have dealt with situations where one party breaches a contract and defends on the grounds that the other party did so first. In TXO Productions Corporation v. Page, 287 Ark. 304, 698 S.W.2d 791 (1985), we stated: “If the plaintiffs breach is material and sufficiently serious, the defendant’s obligation to perform may be discharged.” A relatively minor failure of performance on the part of one party does not justify the other in seeking to escape any responsibility under the terms of the lease or contract. See Henslee v. Mobley, 148 Ark. 181, 230 S.W.2d 17 (1921). We hold that there was sufficient evidence from which the jury could have concluded that the defendant’s obligation to perform was discharged by the plaintiffs prior material breach of the contract.

Negligence is defined in AMI 301, as a “failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under the circumstances similar to those shown by the evidence in this case.” Under another instruction (AMI 303) ordinary care is defined to mean “the care a reasonably careful person would use under circumstances similar to those shown by the evidence in this case.” We have put these instructions into practical use in many cases. In the case of Version Allsteel Press Co. v. Garner, et ux., 261 Ark. 133, 547 S.W.2d 411 (1977), we stated: “Of course, one is negligent when he does something that a person of ordinary prudence would not have done in the same or similar circumstances (or fails to do something as such a person would have done), but in addition, it must develop that the negligence was a proximate cause of the injury, and that injury was foreseeable.” Before a negligent act may be used as the basis to recover damages there must be a showing that the negligent act proximately caused the damages sustained and that such damages were reasonably foreseeable. St. Mary’s Hospital, Inc. v. Bynum, 264 Ark. 691, 573 S.W.2d 914 (1978).

Negligence growing out of the duties relating to a contract may serve as a basis for recovery. In 57 Am Jur 2d Negligence § 47, it is stated:

Although, as a general rule, mere failure to perform a contract cannot serve as the basis of a tort liability for negligence, and there are authorities which state that liability for negligence in the violation of a duty imposed by a contract involves misfeasance rather than nonfeasance, the tendency has been to recognize that liability for negligence may be predicated upon a lack of due care in failing to act as well as upon a negligent performance. The sound rule appears to be that where there is a general duty, even though it arises from the relation created by, or from the terms of, a contract, and that duty is violated, either by negligent performance or negligent nonperformance, the breach of the duty may constitute actionable negligence. A claim for damages based on negligence arising out of breach of contract must necessarily be determined by reference to the contract which created the duty, expressly or impliedly.

We, therefore need to examine the duties owed by the appellant.

There was sufficient evidence that the appellee’s inability to perform was a result of the prior negligence on the part of the appellant in either failing to see that the cows were not diseased or in failing to discover and report the fact to the appellee. The appellant admits that it had knowledge of brucellosis in the Bookout herds before the second load of thirty cows were selected by the appellee. Certainly the brucellosis was a material factor in the failure of the appellee’s dairy business. It was a factual question as to whether or not the disease came into appellee’s herds by reason of the negligence of the appellant.

On the finding for the appellant on the breach of contract and assessing the damages at zero, we cannot say that there was no basis in fact for such action by the jury. The court questioned the jury in order to determine their intent. We have long held that if the meaning of the jury can be clearly discerned from the verdict it ought not be set aside. Barham v. Rupert Crafton, 290 Ark. 211, 718 S.W.2d 432 (1986). Clearly, the jury found that the appellee’s performance was discharged by the negligence of the appellant.

We find that the evidence was insufficient to support the verdict for punitive damages and reverse and dismiss that part of the judgment. The J.N.O.V. was properly denied because, as we have pointed out, the evidence was sufficient to support the verdict and judgment for compensatory damages. The motion for a new trial was also properly denied for the reasons already stated.

Newbern, J., dissents.


text:
    HERGETH, INC. v. Jeff GREEN, et al.
    87-33
    733 S.W.2d 409
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987

      Wright, Lindsey & Jennings, for appellant.

      James F. Swindoll, P.A., for appellee.
   John I. Purtle, Justice.

This is an appeal from a jury verdict and judgment which awarded the appellee damages in the amount of $400,000 for the loss of his left hand as a result of an on-the-job injury. The verdict was in general form. On appeal the appellant contends: (1) that it owed no duty to warn under the circumstances of this case; (2) that the failure to warn was not the proximate cause of the injury; (3) that there was no substantial evidence to warrant the instruction on supplying a defective product; and (4) that the evidence was insufficient to support the instruction on loss of ability to earn.

Chicopee Manufacturing Company purchased a flock-feeder machine from appellant (Hergeth, Inc.) to be used in its production of a non-woven fabric. This was the fourth or fifth flock-feeder unit purchased by Chicopee from the appellant. One of the conditions of the purchase contract was that appellant would supply a person, known as an “erector,” to oversee the installation and start-up of the system. The main element in a flock-feeder unit is a beater. The beater is a drum-like instrument with sharp nail-like teeth on its surface. While in operation the beater turns at about 900 RPM. In order to have the system operational, it was necessary to construct a transition duct from the beater to a fan which pulled fiber from the beater to the reserve box, where it was processed into the finished product. The appellant did not manufacture or supply the transition duct because there was not a standard distance from the beater to the reserve box. It was understood between appellant and Chicopee that this duct system would be constructed on site. A sample drawing of a transition duct was supplied by Hergeth, designed in detail by Chicopee and manufactured by a local sheet metal company which is not a party in this suit. Hergeth knew that this transition duct was essential for the system to become operational. Either Jack League or another of Hergeth’s erectors was present at all times until the machine was placed into operation and turned over to Chicopee. It was a part of League’s responsibilities to see that the unit was placed into operation. Chicopee had no obligation to pay for the flock-feeder unit until it was functional.

A four inch access window was installed over the beater, in the duct leading to the reserve box, to facilitate the removal of hanging pieces of fiber (hangers) from the transition system. Chicopee provided cardboard tubes for removing the hangers from the duct through the window. Such process allowed the beater to remain in operation while the hangers were removed. There is considerable evidence in the record that employees of Chicopee and Hergeth knew that the plexiglass window installed in the transition system presented a danger to one who might insert his hand through the window. However, neither appellant nor Chicopee placed a warning sign near the plexiglass clean-out window.

The appellee opened the plexiglass window and inserted his hand into the duct work to remove hangers. In doing so he placed his left hand against the rotating beater and it was amputated. The appellee filed a products liability action against Hergeth. on the theories of strict liability, negligence, and breach of warranty.

DUTY TO WARN

The first argument presented by appellant is that there was no duty to warn on the part of the manufacturer since the danger in this case was “open and obvious.” Appellant also argues that there was no duty because the purchaser was sophisticated and had actual knowledge of the dangerous propensity of the product. The basic argument is that appellant did not design, manufacture, supply, or install the transition duct in which the access window was located. Testimony and evidence is abundant that both Chicopee and the appellant were aware that the transition duct system would be designed and manufactured locally. It is also clear that Hergeth and Chicopee cooperated throughout the placement and start-up of this machine. Testimony is disputed as to whether appellant knew that this access window created a dangerous condition.

The question to be considered at this point is whether the appellant had a duty to warn under the conditions existing at the time of this occurrence. The key to this question is whether the condition was “open and obvious.” We have considered this issue in a number of other cases. A closely related question was considered by this Court in Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981). In that case we stated: “Manufacturers in Arkansas are not and should not be relieved of the duty to exercise due care in the design and manufacture of equipment merely because the dangerous feature is clearly exposed to those foreseeably using the machine.” The first argument for appeal in the Aderhold case was that the manufacturer had no duty to warn of the hazard. Although we were dealing with the duty to guard, we did state that there is no duty on the part of the manufacturer to warn of a danger when the defect is open and obvious. We held that the open and obvious rule would not serve as a defense, as a matter of law, to all bases of liability.

In Larson Machine v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980), we considered the question of whether the hazard was “open and obvious.” In Larson the plaintiffs leg became entangled in a power take-off unit on a farm tractor. The power take-off shaft originally had a shield over it, but it had been removed by the farm equipment dealer before the accident. The exposed shaft and gears were located immediately next to the driver’s seat. The testimony was in dispute as to whether the hazardous condition was open and obvious. Wallace claimed the exposed power takeoff was not open and obvious. The dealer testified that it was. We upheld a jury verdict against the dealer. However, we held that an independent intervening cause precluded liability on the part of the manufacturer. In Larson the dealer handling the farm tractor had modified the power take-off shield, thereby creating a danger which did not exist at the time it left the control of the manufacturer.

We considered the same argument presented here in W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). In Bashlin the claim was founded upon products liability, negligence, and breach of warranty. In Bashlin we stated: “The jury may have found that Bashlin was negligent in failing to warn the plaintiff on the use of the belt, in failing to warn about double D-ringing, or that the manufacturer became aware that the belt tongue should not have been constructed of leather alone and should therefore have recalled the product. . . . The plaintiff need not bear the burden of proving both theories of liability, it is enough that he prove either.”

In the present case the jury was instructed in accordance with AMI 1002 which states:

A manufacturer of a flock-feeder assembly has a duty to give a reasonable and adequate warning of dangers inherent or reasonably foreseeable in its use for a purpose and in a manner which the manufacturer should reasonably foresee. A violation of this duty is negligence. There is no duty, however, to warn a user of obvious dangers or those known to him or those which he should reasonably discover for himself.

There was no warning sign affixed to the machinery in question. The evidence is disputed as to whether the danger was open and obvious. Testimony was offered that both Hergeth and Chicopee knew of the dangerous condition. On the other hand, testimony was presented which was to the effect that neither of them knew of the dangerous condition.

The flock-feeder in this case was clearly being used for the purpose and in the manner which the manufacturer could reasonably have foreseen. The appellant had a duty to warn of inherent dangers or dangers which were reasonably foreseeable. Failure to do so is negligence. The jury was told that this duty to warn did not exist if the danger was apparent or known to the injured party. The verdict returned by the jury is not inconsistent with this instruction. The jury could have found that the danger was not open and obvious and that it was inherent or reasonably foreseeable.

The record in this case clearly presents an issue of fact. We cannot say as a matter of law that the danger presented in this case was open and obvious. Therefore, the trial court did not err in refusing to instruct the jury that as a matter of law the appellant did not have a duty to warn.

PROXIMATE CAUSE

The appellant’s second argument is that if there was a duty to warn and if the appellant failed to warn, then nevertheless the case should be reversed because any negligence on its part was not the proximate cause of the injury. The appellant suggests that the proximate cause was either Chicopee’s design of the access window, Chicopee’s failure to warn of the inherent dangers, or the appellee’s refusal to heed Chicopee’s warnings. We have discussed similar questions in a number of cases. In Larson Machine v. Wallace, supra, we stated: “The question of intervening efficient cause is simply a question whether the original act of negligence or an independent intervening cause is the proximate cause of the injury.” We further stated: “Like any other question of proximate causation, the question whether an act or condition is an intervening or concurrent cause is usually a question for the jury.” In the case of W.M. Bashlin Co. v. Smith, supra, we held that negligence of a third party is not a defense unless it is the sole proximate cause of the injury sustained and that a plaintiff may recover from the original actor is the negligence of such defendant was a continuing factor.

We also found that there was an intervening independent cause which precluded liability on the part of the supplier in the case of Cowart v. Casey Jones Construction Company, Inc., 250 Ark. 881, 467 S.W.2d 710 (1971). In Cowart the facts were that the employer of the injured party continued to use a rented crane which he knew lacked certain safety devices. This potential hazard was brought to the attention of the employer when it was delivered. In upholding the trial judge’s directed verdict against the injured party in favor of the supplier, we found that the danger was noticeable and obvious. We further stated that the continued use of the machine by the employer with full knowledge of its dangerous aspect amounted to an independent intervening cause.

Being unable to state that as a matter of law the defect was open and obvious, we are left with proximate causation being a question for the jury. Further, the facts are sufficient to sustain a finding by the jury that there was proximate causation between the failure to warn and the resulting injury.

SUFFICIENCY OF THE EVIDENCE TO SUPPORT AN INSTRUCTION ON SUPPLYING A DEFECTIVE PRODUCT

The third argument by appellant is that there was no substantial evidence to support a finding that appellant had supplied a product in a defective condition. The appellant’s primary argument on this point is that the court gave an erroneous instruction, which it argues is presumed to be prejudicial error. Arkansas has enacted a Products Liability Act, and the definitions of words and phrases used in the Act are set out in Ark. Stat. Ann. § 34-2802 (Supp. 1985). The statute describes a “manufacturer” as being the designer, fabricator, producer, compounder, processor, or assembler of any product or its component parts. “Defective condition” is defined as meaning a condition of a product that renders it unsafe for reasonably foreseeable use and consumption. “Unreasonably dangerous” means that a product is dangerous to an extent beyond that which would be contemplated by the ordinary and reasonable buyer, consumer or user who acquires or uses such product, assuming the ordinary knowledge of the community, of similar buyers, users or consumers, as to its characteristics, propensities, risks, dangers and proper and improper uses, as well as any special knowledge, training or experience possessed by the particular buyer, user or consumer or which he or she was required to possess. A “products liability action” is an action for personal injury, death or property damage caused by or resulting from the manufacture, construction, design, formula, preparation, assembly, testing, service, warning, instruction, marketing, packaging or labeling of any product. We do not find that the trial court gave an erroneous instruction in this case. To the contrary, we hold that the instruction given was a proper one under the facts presented to the jury. The products liability statute clearly contemplates that a manufacturer may be responsible for injuries resulting from defective manufacture as well as injuries arising out of the erection and assembly of the product.

LOSS OF ABILITY TO EARN

The injured party in this case was a twenty-six year old male with some college training. He expressed a desire to become a veterinarian. Professor Weber testified that the prosthesis used by the appellee limited his flexibility, dexterity, and sensation. It is not necessary to use an expert to reach these conclusions under the facts of this case. The appellee appeared before the jury in the obvious physical condition of having lost his left hand. He further informed the jury that his left hand had been dominant.

The loss of future wages and the loss of ability to earn are two separate and distinct elements of damages. In the case of Cates v. Brown, 278 Ark. 242, 645 S.W.2d 658 (1983), we distinguished the two. As stated in Cates, capacity to earn is covered by AMI 2207 and is distinct and separate from the element of permanency or loss of future wages. For a more thorough discussion and comparison of these elements of damages see Cates. When a person has suffered the loss of a part of his body, such as a hand, it is not necessary to prove with specificity the details as would be required to support an instruction for the loss of future wages. Therefore, the instruction as to decreased earning capacity was proper under the circumstances of this case.

Having carefully considered the record and each argument presented on appeal, we do not find reversible error. Therefore, the case must be affirmed.

Hickman and Newbern, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I dissent because the appellant did not manufacture nor supply the machine that took the hand of Jeff Green.

This case is typical of products liability cases, and in some respects demonstrates what is wrong with our legal system in the way it has come to treat torts.

First, the employer, Chicopee Manufacturing Company, built this machine, and if anyone or any entity should be blamed for negligent design, or failure to warn, it is Chicopee. Of course, Chicopee has workers compensation insurance and cannot be sued. The appellee, Jeff Green, has presumably collected his compensation. It will not, I am sure, compensate him for his loss, but it is not insignificant either.

Then there is the carelessness of Jeff Green. Frankly, he should have known not to stick his hand in the machine. Common sense tells us all that that is dangerous. But, tragically, these accidents do happen regardless of the care and good intentions of employers, supervisors and employees.

Why this particular lawsuit? For money. If only a slight case can be made against someone or some company remotely connected with the accident perhaps a jury will make an award. The jury, of course, is not told the truth. They are not told Chicopee has workers compensation or Green has made a recovery. We are going to have to begin telling juries the truth if we intend to reform tort law. The simple fact is that we do not trust juries with the truth. Insurance companies fear that juries will make excessive awards if they know a defendant has insurance. Plaintiffs’ lawyers fear juries will reduce their awards if they know their clients are already compensated. So we keep from the jury the truth and have lawsuits like this: a defendant with a deep pocket is sued in hopes of more money.

The law, of course, can be stretched to bring such defendants into the realm of liability. Usually the theory is a failure to warn — that is the handiest charge of negligence.

Even hammers, axes and ladders have warnings on them, warning users to be careful. These warnings are put there because manufacturers have been sued because someone was dumb enough (and there is no other way to say it) to hurt themselves through carelessness. Carelessness causes many accidents, and all the signs in the world will not change that fact.

I regret joining the decision in W.M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). A safety belt over 11 years old, failed while being improperly used, and we affirmed an outlandish verdict. It is such decisions as this which are, in a large part, destroying our ability to produce products in this country, and at the bottom of it all is simple greed.

There is tragedy in the lives of those harmed, but our system has adequate legal remedies for most wrongs. The quest for larger and larger verdicts is simply founded on greed. Why not tell juries the truth? Why not tell juries exactly how much the lawyers will get? Could we have any worse system?

Newbern, J., joins in this dissent.


author: John I. Purtle, Justice. Steele Hays, Justice,

text:
    Timothy C. KLINGER d/b/a HISTORIC PRESERVATION ASSOC. v. CITY OF FAYETTEVILLE, Arkansas, A Municipal Corporation
    87-67
    732 S.W.2d 859
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987

      Jones & Hixson, by: Lewis D. Jones, for appellant.

      James N. McCord, City Attorney, for appellee.
   John I. Purtle, Justice.

This is an appeal from the granting of a summary judgment in favor of the appellee, City of Fayetteville, in which the chancellor held that as a matter of law the competitive bidding requirements of Ark. Stat. Ann. §§19-4425 (Supp. 1985) and 19-716(a) (Repl. 1980) were inapplicable to contracts for professional services. On appeal the appellant argues that the chancellor erred in holding that contracts for professional services are exempt from the competitive bidding requirements of either statute. Finding error in the chancellor’s ruling, we reverse and remand.

Sometime after the City of Fayetteville began construction of a federally funded wastewater treatment facility, a survey of the grounds led to the discovery of a significant prehistoric archeological site. Federal regulations provide that no significant cultural resources can be adversely impacted by such construction, and thus Fayetteville was required to take precautionary steps to mitigate any potential adverse impact to the prehistoric site.

In late March or early April of 1986, the appellant notified the city and its consulting engineer, McClelland Constructing Engineers, Inc., that he was qualified to provide the necessary archeological services to preserve the site and that he was interested in bidding for the project. The Fayetteville Board of Directors adopted a resolution on May 6, 1986, authorizing the execution of a contract with McClelland for the requires services. The contract, in excess of $5,000, was entered into without competitive bidding. McClelland subcontracted the work to Mid-Continental Research Associates. The subcontract, in the amount of $63,862, was also procured without competitive bidding.

The appellant filed suit in Washington County Chancery Court on June 19, 1986, seeking a declaratory judgment and injunctive relief, alleging that the city’s contracts were void for failure to comply with the competitive bidding requirements of Ark. Stat. Ann. § 19-4425. The city answered appellant’s complaint and filed a motion for summary judgment, asserting that the city need not solicit bids for professional services. The chancellor found that since Fayetteville had a city manager form of government the applicable statute was Ark. Stat. Ann. § 19-716(a). Finding that there were no genuine issues of material fact and that as a matter of law the city was not required to solicit bids for professional services, the chancellor granted the appellee’s motion.

The statute here under consideration is Ark. Stat. Ann. § 19-716(a), which provides:

Before making any purchase of, or contract for, any supplies, materials or equipment, and before obligating the city under any contract for the performance of services or for the construction of municipal improvements, where the anticipated cost to the city of such transaction exceeds the maximum amount established by the Board of Directors under the authority of paragraph A (e)i, of Section 12 [§19-712] of this Act [§ 19-701 — 19-7 3 3], opportunity for competitive bidding shall be given under such rules and regulations as the Board of Directors may by ordinance prescribe, and the contract shall be consummated only on a bid approved by the City Manager and by the Board of Directors; provided, the Board of Directors, by ordinance, may waive the requirement of competitive bidding in exceptional situations where such procedure is not feasible but, such exceptional situations being lacking, the Board may not except any particular contract, purchase or sale from the requirement of competitive bidding. . . .

The City of Fayetteville had passed similar ordinances in 1959 and 1976 which required competitive bidding for contracts in excess of $2,500 and provided that the Board of Directors may waive such procedures in “exceptional situations where such procedure is deemed not feasible.” The city did not waive by ordinance the requirement of competitive bidding for performance of services. Therefore, the contract for professional services was not exempt from competitive bidding.

The appellee cites much authority, including judicial rulings from other jurisdictions and an Attorney General’s opinion from our state, which the appellee claims supports its position that contracts for professional services are exempt from the statutory requirement of competitive bidding. However, we have been cited no binding precedent which addresses the issue presented here. We considered a similar question in Smith v. City of Springdale, 291 Ark. 63, 722 S.W.2d 569 (1987), where we held that competitive bidding was required under Ark. Stat. Ann. § 19-4425 (the sister statute governing contract bidding for cities with other forms of government) for city contracts for trash collection.

In applying the accepted rules of statutory construction, we give words in a statute their plain and ordinary meaning. There is no need to construe or interpret the language when it is readily understandable on its face. See Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986), and Commissioner of Revenue v. Black and White Cab Co., 290 Ark. 575, 720 S.W.2d 911 (1987). The controlling statute, Ark. Stat. Ann. § 19-716(a), requires that “before making any purchase of, or contract for, any supplies, materials, or equipment, and before obligating the city under any contract for the performance of services . . . opportunity for competitive bidding shall be given . . . [emphasis added].” The word “shall” when used in a statute means that the legislature intended mandatory compliance unless such an interpretation would lead to an absurdity. See Loyd v. Knight, 288 Ark. 474, 706 S.W.2d 393 (1986).

Giving the language of this statute its plain and ordinary meaning, we hold that a city is required to solicit bids for all contracts except where there is an affirmative showing by enactment of a separate ordinance that the solicitation of bids is not feasible or practical.

Therefore, it was error for the chancellor to hold that there was no genuine issue of material fact and that the appellee was entitled to summary judgment as a matter of law.

Reversed and remanded.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. The chancellor held that under the prevailing rule of law professional services are exempt from the competitive bidding procedures of statutes such as Ark. Stat. Ann. § 19-4425 (Repl. 1980) and Ark. Stat. Ann. § 19-716 (Repl. 1980). McQuillan, Municipal Corporations, § 29.35 (3rd Ed. Rev.); 64 Am.Jur.2d, Public Works and Contracts, § 43; 15 ALR3d 733. He also found that archaeological work under the contract would constitute professional services and would thereby be exempt from the bid requirements. Appellant has made no attempt to answer that argument beyond urging that § 19-4425 and § 19-716 are clear and unambiguous. The majority opinion notes that “the city did not waive by ordinance the requirement of competitive bidding for performance of services.” Granted, but I cannot find in the record where the appellant argued that point to the trial court. Thus the case is being reversed on a point not preserved below. Chapin v. Stuckey, 286 Ark. 359, 692 S.W.2d 609 (1985).

While the issue is one of first impression in this Court, other jurisdictions have interpreted similar statutory language as not applying to contracts for professional services. Stratton v. Allegheny County, 91 A. 894 (Penn. 1914); Alexander v. Mayor and Board of Aldermen of City of Natchez, 68 So. 2d 434 (Miss. 1953). Jeffersontown v. Cassin, 102 S.W.2d 1001 (Kent. Ap. 1937). I believe the rule is sound and the chancellor should be affirmed.


author: Robert H. Dudley, Justice.

text:
    BROWN PROPERTIES, INC. and Dale McGINNIS v. Danny O. & Cheryl LOOPER, Monty L. and Karen Sue HOLMES, and Arvel & Maudine HOLMES
    87-46
    732 S.W.2d 471
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987

      Stanley D. Rauls, and Judieth P. Balentine, for appellant.

      Howell, Price, Trice, Basham & Hope, P.A., by: Ronald A. Hope, for appellees, Holmes.

      Hoofman and Bingham, P.A., by: Cliff Hoofman, for appellees, Looper.
   Robert H. Dudley, Justice.

The question presented is whether the chancellor erred in finding that the parties intended for an easement for ingress and egress to permit the holder to pave the roadway and to install utilities underneath the surface of the land. We hold that the chancellor was correct in finding that they intended for the roadway to be paved, but that he erred in finding that underground utilities construction was contemplated by the parties to the purchase agreement.

The appellants, Brown Properties, Inc. and Dale McGinnis, bought a five acre tract of land in Pulaski County from appellees, Danny and Cheryl Looper. The purchase agreement contained a provision reserving an easement for the seller which stated:

Buyer and Seller agree that an easement for ingress and egress is reserved across a forty foot strip lying West of and adjacent to the East line of subject property and running from a point on the South right of way line of Forrest Oak Road north to the north property line of subject property.

Six months later the Loopers sold a different five acre tract to appellee Monty Holmes. The tract was just north of and adjacent to the appellants’ property. In order to provide appellee Holmes with access to his land, the Loopers also conveyed the easement they had reserved from the sale to appellants.

For almost a year the properties remained unimproved and dealings between the new neighbors were amicable. Testimony indicates that the parties at one point even contemplated jointly borrowing $30,000 in order to build a common roadway between the parties. However, as the plans to develop the properties conflicted and collateral disputes arose, relations deteriorated. When Holmes began to lay utilities under the easement and to pave its surface, appellants filed a petition to quiet title and a complaint seeking a judgment declaring the easement to be for ingress and egress only.

The parties agreed at a pretrial conference, “that the intent in granting the easement was going to be a controlling factor in this lawsuit.” After hearing the evidence at trial, the chancellor ruled that appellee Looper and appellants had intended for the easement to accommodate both pavement and underground utilities. On appeal, appellants argue that the chancellor erred first in admitting testimony bearing on the intent of the parties because the language creating the easement was sufficiently clear to show its extent and, second, in holding that an easement for ingress and egress permits construction of a paved road or underground utilities.

It is a well-settled principle of law that where an instrument is unambiguous on its face, extrinsic evidence is inadmissible to contradict or vary its terms. Lane v. Pfeifer, 264 Ark. 162, 568 S.W.2d 212 (1978). Thus, had the issue been preserved we may well have found that testimony bearing on the parties’ intent was inadmissible to vary the terms of this easement, which we consider to be clear and unambiguous. However, appellants failed to make timely objection to the testimony and they agreed to limit the issues to a determination of the parties’ intent. Hughes v. Lee, 238 Ark. 547, 383 S.W.2d 97 (1964) and Walt Bennett Ford, Inc. v. Brown, 283 Ark. 1, 670 S.W.2d 441 (1984). Having agreed that intent would control the suit, appellants may not now raise this issue on appeal. C&L Trucking, Inc. v. Allen, 285 Ark. 243, 686 S.W.2d 399 (1985).

While the chancellor correctly found that the parties intended for the road surface to be paved, he erred in ruling that they contemplated underground utility construction as well, and we therefore set aside his finding on that point. ARCP Rule 52(a). The only evidence which the chancellor used to support his finding that the parties intended the easement to include the right to construct utilities was that it was “inconceivable that the grantor intended to bring the utilities from thousands of feet away instead of hooking onto the utilities from the adjacent subdivision approximately 195 feet away, or that the grantee intended to receive only the right to drive across the easement, but not to bring utilities across the same property.” That finding omits the intent of the grantee who owns the land which the easement crosses.

The grant of an easement for ingress and egress does not expressly or by implication include the right to lay utilities below the surface of the easement. Ampagoomian v. Atamian, 81 N.E.2d 843 (Mass. 1948). However, since the parties stipulated “that the intent in granting the easement was going to be a controlling factor in this lawsuit,” and since the chancellor relied on that stipulation, we examine the intent of the parties. Appellee Looper, the seller, testified that in reserving the easement, he intended for it to include utilities. Appellant McGinnis, the purchaser, steadfastly denied intending for the easement to include utilities, and asserted that by using the words “for ingress and egress,” she intended to restrict the use of the easement. Clearly, there was no mutual intent for the easement to include anything below the surface. Accordingly, we reverse the chancellor’s finding of fact that the parties intended that the easement for ingress and egress included the right to lay underground utilities.

Affirmed in part; reversed in part and remanded.

Hays, J., dissenting in part, would affirm pursuant to ARCP Rule 52.


author:
Steele Hays, Justice.
      Darrell Hickman, Justice,

text:
    Tommy BENNETT v. BLYTHEVILLE CIVIL SERVICE COMMISSION
    87-21
    733 S.W.2d 414
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987

      Kaplan, Brewer & Miller, P.A., by: Silas H. Brewer, Jr., for appellant.

      Elbert S. Johnson, for appellee.
   Steele Hays, Justice.

When a captain of the Blytheville Fire Department was promoted to the rank of chief, a vacancy was left in the Office of Captain. Lt. Tommy Bennett, appellant, and Lt. Jerry Summers applied. Both had been with the department since about 1971, Bennett being senior to Summers by about a year.

The Blytheville Civil Service Commission explained the procedures to Lts. Bennett and Summers — they would undergo a written examination prepared by the Fire Academy which would be given a weight of 60%, an oral examination weighted 20%, and a departmental evaluation weighted 20%.

The results of the examinations and evaluations were very close — Bennett scored 48 on the written exam, 76.5 on the oral and 79 on the departmental evaluation, for a combined total of 59.9. Summers scored 41 on the written exam, 91.5 on the oral and 86 on the evaluation, for a total of 60.1. The names were certified according to the test results to the chief, the mayor and the city council and Lt. Summers was selected. Lt. Bennett appealed to the circuit court and the Commission was affirmed.

On appeal to this Court Lt. Bennett contends, first, the circuit court erred in sustaining the promotion of a fire department employee whose score on the written examination was lower than his and, second, the process of promotion did not include examinations with fair, impartial and measurable standards, capable of judicial review, as required by the controlling statutes.

I

Citing Bradley v. Bruce, 288 Ark. 342, 705 S.W.2d 431 (1986) and Booth v. Baer, 263 Ark. 213, 563 S.W.2d 709 (1978), appellant argues that because he scored above Lt. Summers on the written examination it was incumbent on the Commission to certify him for promotion under the provisions of the Civil Service Act, Ark. Stat. Ann. §§ 19-1601 through 19-1618 (Repl. 1980).

We find nothing in our civil service statutes suggesting that the choices for promotion must be based solely on written examination. Section 19-1603 (9th) states only that promotion shall be based upon “open competitive examinations of efficiency, character and conduct[.]” (Our emphasis).

In Bradley we emphasized that § 19-1603 requires that promotion eligibility be based entirely on examination, and we said, therefore, that seniority could not be considered. We did not there, and we do not here, specifically eliminate oral examination as a means of evaluation. We say only that it must be capable of objective grading and review. Seniority was not a factor in the selection of Lt. Jerry Summers. Nor does the Booth case reach such a result. The selection process in Booth used this point system:

Written test 40%
Seniority 20%
Oral Examination 20%
Rating by Chief 10%
Rating by Supervisor 10%
TOTALS 100%

However, it was not an oral examination that was criticized in Booth, but the fact that the oral examination was delegated to a panel of examiners chosen by the Little Rock Civil Service Commission without the prior adoption of a rule establishing such a procedure. The process was further flawed because only two of the three panelists actually participated in the oral examination. While other deficiencies were noted in Booth, the use of oral examinations as part of the testing process was not faulted in the

Booth opinion.

In contrast, the use of an oral examination and department evaluation was approved by Article 16 of the Rules and Regulations of the Blytheville Commission enacted in accordance with the Civil Service Act. In Amason v. City of El Dorado, 281 Ark. 50, 661 S.W.2d 364 (1983), we held that civil service regulations promulgated in accordance with the act, which adopted testing procedures not prohibited under the act, had the effect of law. (Ark. Stat. Ann. §19-1603). Nothing in the act prohibits the use of oral examinations in the selection process and the circuit court was right to sustain the Commission on this argument.

II

The circuit court found, correctly, that the selection process by which Lt. Summers was certified above Lt. Bennett was fairly and accurately made, free of favoritism, politics or other impropriety. Certainly nothing in the record suggests otherwise, and appellant readily concedes the fairness of the selection process. In fact, on an earlier list, which had expired, Lt. Bennett was at the top. Even so, we are compelled to sustain the appellant on his second argument — that the oral examination and the departmental evaluation, while appropriate in themselves as constituents of the selection process, were conducted in a manner which failed to provide measurable criteria for reviewing the selection process. In Booth, we said oral examination required the establishment of measurable standards and cited language from Almassy v. Los Angeles County Civil Service Commission, 34 Cal.2d 387, 210 P.2d 503 (1949):

To be sure, there must be measurable standards established for determining the general proficiency of the candidates for the particular position, but the fact that such standards were subjective rather than objective does not prevent the classification of the ‘oral interview’ as a ‘competitive’ examination. The various aspects of the personality factors, as previously determined by the commission to be ‘necessary and important’ to the position to be filled, were itemized for consideration by the examiner as the measuring rod and guidepost in his evaluation process as to the personal fitness of the candidate, so that it cannot be said that there was no effective common criterion of base topics underlying the comparative ratings.

That precedent, rendered nearly ten years ago, is binding.

The proceedings relative to the oral examination were described as follows: a promotion cycle required testing for a captain, a lieutenant and a driver. Four of the five commissioners assembled to give the oral exam, consisting of ten questions:

1. In fire related work, how would you describe the Chain of Command and how important is it?
2. Do you consider longevity a requirement for promotion? Why?
3. How do you feel about public relations to the Fire Department? What is Public Relations?
4. While you are on duty, in the event of a serious fire where a person has died of suffocation, who must be notified?
5. What is the procedure for responding to out of town fire calls?
6. You are responding to a fire call in a fire vehicle and your vehicle hits a child. What do you do? Who must be notified?
7. This is a two part question:
A. An alarm was called in that a house fire had occurred at 419 E. Sycamore. What is the best route to use from the Main fire station?
B. What is the best route from the main fire station to 522 W. Locust Street?
8. This is a two part question:
A. An alarm was called in that a house fire had occurred at 1820 Brawley street. What is the best route to get there from the west end fire station?
B. What is the best route from the west end station to 510 Maple Street?
9. You are seeking promotion to (Capt., Lt., Driver). What are the major responsibilities of that position?
10. Why do you think you are deserving of a promotion at this time?

The same ten questions were asked each applicant for the three positions. There was no job description or written documentation of the qualifications for any position, nor any consultation among the commissioners concerning appropriate answers to any of the questions. The answers were not recorded, nor were any memoranda of the responses preserved.

We have no objection to the questions, or with the identical questions being posed to the candidates for promotion to captain, lieutenant and driver. The problem with the oral examinations and the departmental evaluation is they fail to provide any method by which the grading of the examiners can be given even a perfunctory review. We are left with a single option, i.e., unquestioning acceptance of the subjective judgment of the examiners as to the qualifications of the applicants. That fails to comport with the holding in Booth v. Baer, supra, and must be disapproved.

The oral exam and departmental evaluation must be conducted so that some reasonable means for judicial review is possible to insure that the examiners have not been guided entirely by their own subjective discretion. That would require, at a minimum, some prior conceptions of the qualifications for the position being filled, the ideal responses to the questions posed and some memorandum of the results besides scores. The departmental evaluation, too, must reflect more than simply the conclusions of the supervisors. We do not propose to become involved in the selection process, but merely to discharge the duty of providing the independent review placed on the judiciary under the law, to see that the process is fair and impartial. To do that we cannot rely by faith on the judgment of the examiners.

On remand the oral and departmental evaluation of Lts. Bennett and Summers should be conducted under methods which preserve the procedures followed for review.

Reversed and remanded.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I concur to simply point out that we cannot write or rewrite the law. The legislation, in this case, is not good in my judgment. There should be other criteria considered in promoting policemen and firemen. Leadership and character are hard qualities to determine purely through testing. I doubt if they can be. A person making the best grade may be totally unable to act out the duties of a senior officer.

But we did not make the law, and we are not going to change it (at least, I hope we do not). Those interested, policemen, firemen and civil service commissioners, will have to bring this about. Until other legal criteria are written into the law, we will have to enforce the current law.


author: Steele Hays, Justice. Darrell Hickman, Justice.

text:
    MISSOURI PACIFIC RAILROAD CO. v. Randall W. BIDDLE and Cheryl Ann BIDDLE, His Wife
    86-299
    732 S.W.2d 473
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987
    [Supplemental Opinion on Rehearing October 5, 1987.]

      Herschel H. Friday, William H. Sutton, and William M. Griffin III, for appellant.

      Wilson, Walker & Short, P.A., for appellee.

      Glaze, J., concurs; Hays, J., would deny rehearing.

   Steele Hays, Justice.

This case involves a collision at a grade crossing between a locomotive of the Missouri Pacific Railroad Company, appellant, and a truck driven by Randall Biddle, appellee. Biddle was seriously injured in the accident, and as a result lost the use of both legs and the partial use of his arms. The jury returned a verdict fixing the negligence at 40% by Biddle and 60% by Missouri Pacific, and awarding Biddle one million dollars. Cheryl Biddle was awarded five hundred thousand dollars for loss of consortium. These sums were reduced to $600,000 and $300,000 in accordance with the relative degrees of fault as apportioned by the jury.

State Highway 32 and the Missouri Pacific tracks cross at right angles. The road is straight and level for a considerable distance on each side of the crossing. Approaching from the east, as did Mr. Biddle, a motorist’s view of the track to the right, or north, is unobscured for 249 feet. Beyond that trees partially obscure the view.

The question of liability was submitted to the jury on essentially two issues — whether the railroad had complied with the statutorily required sounding of a bell or whistle as it approached the crossing and whether the crossing was an abnormally dangerous one requiring special warnings. The railroad made a motion for a directed verdict on these two issues which was denied and on appeal it contends this was error.

The issue of sounding the bell or whistle is the easier of the two. The instruction to the jury in accordance with our statute provides that a train must sound a bell or whistle at a distance of at least a quarter of a mile from an intersection with a public highway. Ark. Stat. Ann. § 73-716 (Repl. 1979). The railroad contends the evidence was undisputed that the whistle and bell were sounded, such testimony coming from the engineer, the brakeman and a witness to the accident. The appellee however, testified he did not hear a bell or a whistle, and the witness to the accident testified he heard the whistle but could not say at what point the train began to sound it and his testimony indicated it may not have begun until the train was closer to the crossing than the statute requires.

The statute requires not only that a whistle or bell be sounded, but that one or the other must be sounded beginning at least a quarter mile from the crossing. Given the evidence presented, whether the train gave the necessary signal over the required distance was a fact question properly left to the jury and the court was correct in denying a directed verdict on this point.

The law with respect to abnormally dangerous crossings was announced in Fleming, Admx. v. Missouri & Arkansas Railroad Co., 198 Ark. 290, 128 S.W.2d 986 (1939), and is incorporated in AMI 1805:

If a railroad grade crossing is frequently used by the traveling public, if trains pass over it frequently, and if the crossing is so dangerous because of surrounding circumstances that a reasonably careful person could not use it with reasonable safety in the absence of special warnings, then it would be an abnormally dangerous crossing. Whether the railroad grade crossing in this case was abnormally dangerous is for you to decide.
If you find that the crossing was abnormally dangerous, as I have defined that term, then it was the duty of the railroad to use ordinary care to give a warning reasonably sufficient to permit the traveling public to use the crossing with reasonable safety.

Appellant argues the instruction and the case law interpreting it require that the plaintiff prove not only that the intersection was dangerous because of some physical hazard or visual obstruction but also that the volume of both train and vehicular traffic render the intersection abnormally dangerous. That is, all three elements must be independently proved to submit the issue to the jury. Appellant also contends appellees’ proof was insufficient, particularly with respect to the daily volume of train traffic. Appellant urges that two trains a day do not constitute “frequent” use and on that basis alone the instruction should not have been given to the jury.

We sustain the argument, but not for the reason argued. While we have had cases that emphasize one aspect of the test, [Chicago, Rock Island & Pacific Railroad v. Gray, 248 Ark. 640, 453 S. W.2d 54 (1967)], we do not find that cases applying the test require that the insufficiency of one element alone ends the inquiry. Rather, all the factors must be considered together for a fair determination of the issue. See, St. Louis Southwestern Ry. v. Farrell, 242 Ark. 757, 416 S.W.2d 334 (1967). To require each element to meet a certain standard could result in an unreasonable determination, where for example, a crossing was highly dangerous because of its physical characteristics and had a high volume of vehicular traffic but would not meet the “abnormally dangerous” test because the number of trains passing through each day did not meet some predetermined standard. So, in Hawkins v. Missouri Pacific R.R., 217 Ark. 42, 228 S.W.2d 642 (1950), we allowed the instruction where the circumstances established a hazardous condition at the crossing due to its location on a principle street of a city. No mention was made of the number of trains crossing daily.

This totality of the circumstances approach was taken by the Eighth Circuit in Shibley v. St. Louis-San Francisco Ry. Co., 533 F.2d 1057 (1976). The appellant railroad in that case made the same argument made here. After a review of our cases applying this instruction, the court found “the entire scope of facts and circumstances surrounding each case must be viewed, and that undue consideration should not be given to any particular element.”

The accident in this case occurred on a two-lane state highway that carried 963 cars a day. Two trains passed over the crossing each day. There were no active signals at the crossing, but there was a passive warning sign 500 feet from the crossing, and a crossbuck sign at the crossing itself. Biddle testified he slowed down to about 25 mph as he approached the crossing, that he looked to the north before he reached the clearing, then to the south and then again to the north. At that time he first saw the train and he was only about a half car length from the crossing. He was familiar with the crossing, using it two or three times a week on his job. When asked why he didn’t see the train, he replied:

Because all of the trees and bushes up there. You can’t see the train until you have passed that little gravel road there which is on the right side of the road. And after I got to that point I still didn’t see him when I was approaching that road there, and when I got to the track that is when I remembered, I looked around and seen him.

We note first that the vehicular traffic of 963 cars per day and the train crossings of two per day are below the averages found significant in other cases where the instruction was approved. St. Louis Southwestern Ry. v. Jackson, 242 Ark. 858, 416 S.W.2d 273 (1967), [1100-1900 cars, 16 trains]; Farrell, supra, [1700-1900 cars, 16 trains]. More importantly, the crossing itself, which should receive the primary focus in this inquiry, was not shown by any significant evidence, to be a dangerous one.

While the testimony was undisputed that there was an obstructed line of vision until a point 249 feet from the tracks was reached, there was no evidence that this presented a particularly dangerous situation. Neither was there evidence that there were any other obstructions or conditions such as sunglare or mist to render the crossing dangerous. Jackson, supra; Farrell, supra. To the contrary, Biddle testified it was a clear spring day and he had no trouble viewing the tracks to the south, and the only difficulty in viewing the train to the north was the trees obscuring his view.

Appellees’ expert testified, based on a prediction model, that the crossing would have an accident rate of one every twelve and one-half years, and that in his opinion the crossing was “more than ordinarily hazardous.” While he listed the factors considered in coming to these conclusions, such as the number of trains per day, the number of tracks, and history of accidents at that crossing, he did not give the specifics of those factors for this particular crossing. He also gave no explanation for his classifying the crossing as “more than ordinarily hazardous” or the relativity of that term.

In light of the conclusory quality of the expert’s testimony and the lack of any other evidence in the record indicating hazardous aspects of the crossing, we find the expert’s opinion in this case failed to provide any significant evidence to show the crossing’s dangerous quality. When considering all three factors of the test together, we cannot find there was substantial evidence that this was an abnormally dangerous crossing as we have defined it, and it was error to submit that issue to the jury. It is also notable that this court has taken the position that the opinion of an expert is not admissible if the point in issue is not beyond the comprehension of the jury. In St. Louis S.W. Ry. Co. v. Jackson, we said:

Not a single one of the foregoing facts taken individually is beyond the comprehension of the average juror; nor can we find any reason to say that an average juror would not be competent to determine from the facts when considered together whether the crossing was abnormally dangerous. We have consistently held that it is prejudicial error to admit expert testimony on issues which could conveniently be demonstrated to the jury from which they could draw their own conclusions. See S & S Construction Co. v. Stacks, 241 Ark. 1096, 411 S.W.2d 508 (1967). Therefore we hold that the trial court committed reversible error in admitting the expert testimony on the abnormally dangerous crossing.

We reaffirmed that view more recently in Russell v. State, 289 Ark. 533, 712 S.W.2d 916 (1986). While we upheld the admission of expert testimony in B & J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984), there the witness made computations which the jury could not have made on its own.

Appellant also argues the trial court erred in failing to find as a matter of law that Biddle’s negligence was equal to or greater than that of the railroad. There is no merit to this contention.

We have long held it is the province of the jury to pass upon the conflicts in, and the weight of, the testimony. The fact that testimony is conflicting, or that the verdict may seem contrary to the preponderance of the testimony, furnishes no ground for reversal. Contributory negligence, properly submitted to the jury, is determined by the jury verdict. Wasson v. Warren, 245 Ark. 719, 434 S.W.2d 51 (1968). It is not the province of this Court to compare the negligence of the parties when fairminded men might reach differing conclusions. If there is any substantial evidence to support a finding by the jury that the negligence of one party was greater than the other, we must affirm the judgment. St. Louis S.W. Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977).

In essence appellant contends the evidence is undisputed that Biddle had an opportunity to see the train before the collision and could not have failed to see the train in time to have avoided the collision. Missouri Pacific R.R. Co. v. Dennis, 205 Ark. 28, 166 S.W.2d 886 (1942). However, the evidence on this point was neither clear nor undisputed. The jury could have found that Biddle had slowed down as he approached the crossing but by the time he could first see the train, still did not have enough time to avoid the collision. The jury could have further found it was the railroad’s failure to sound a warning at the required distance that was the proximate cause of the accident. There was no error in the court’s refusal to find Biddle’s negligence equal to or greater than the railroad’s.

Reversed and remanded.

Glaze, J., concurs.

Supplemental Opinion on Rehearing

October 5, 1987

737 S.W.2d 625

Railroads — appellees did not establish negligence — directed VERDICT SHOULD HAVE BEEN GRANTED. — The appellant had a statutory duty to sound a bell or whistle, and in the absence of any testimony offered by the appellees that a bell was not sounded, the matter should not have gone to the jury; the motion for directed verdict should have been granted.

Darrell Hickman, Justice.

A rehearing is granted because we made a mistake regarding the facts in our decision of July 20, 1987.

We said: “The appellee however, testified he did not hear a bell or a whistle. . .” (Italics supplied.) The record reflects this:

Q. Did you ever hear a train whistle on that day?
A. No sir. (Italics supplied.)

Appellee never testified that he did not hear a bell. The question of whether the railroad was negligent in violating Ark. Stat. Ann. § 73-716 (Repl. 1979) was submitted to the jury. The statute provides:

A bell of at least thirty [30] pounds weight, or a steam whistle, shall be placed on each locomotive or engine, and shall be rung or whistled at the distance of at least eighty [80] rods from the place where the said road shall cross any other road or street, and be kept ringing or whistling until it shall have crossed said road or street, under a penalty of two hundred dollars [$200.00] for every neglect, to be paid by the corporation owning the railroad, one-half [Vi] thereof to go to the informer and the other half [Vi] to the county; and the corporation shall also be liable for all damages which shall be sustained by any person by reason of such neglect.

The statutory duty is to sound a bell or whistle. In the absence of any testimony offered by the appellees that a bell was not sounded, the matter should not have gone to the jury. Compliance with the statute was the sole remaining issue of liability. Since the appellees did not establish a case of negligence, the motion for directed verdict should have been granted.

Reversed and dismissed.

Glaze, J., concurs.

Hays, J., would deny.


author: Tom Glaze, Justice. John I. Purtle, Justice,

text:
    TELCOE CREDIT UNION v. Versa EACKLES
    87-93
    732 S.W.2d 477
    Supreme Court of Arkansas
    Opinion delivered July 20, 1987
    [Rehearing denied September 14, 1987.]

      Homer Tanner and Wright, Lindsey & Jennings, for appellant.

      Dodds, Kidd, Ryan & Moore, for appellee.

      Purtle, J., would grant rehearing.

   Tom Glaze, Justice.

This case is one involving a debtor-creditor relationship. Appellee, Versa Eackles, executed two loan agreements with appellant, Telcoe Credit Union (Telcoe). Under the first agreement, Eackles borrowed $3,675.00. This loan was secured by her 1978 Couger XR7. The second loan was unsecured and in the amount of $483.00. About two months after the second loan was made, Eackles left her employment with Southwestern Bell and defaulted in her loan payments. Telcoe subsequently repossessed Eackles’s Cougar. Eackles then filed this suit, alleging Telcoe had unlawfully converted her automobile. Telcoe answered, denying Eackles’s allegations, and counterclaimed for the amounts due on both loans. At trial, Eackles was awarded a jury verdict of $3,000.00 in compensatory damages and $8,000.00 in punitive damages; Telcoe received a judgment for $1,831.25. Telcoe brings this appeal, and argues, among other things, that the trial court should have granted Telcoe a directed verdict. We agree.

As an element of her conversion action against Telcoe, Eackles was required to show that she had made legal tender of the amount owed on the secured loan and that Telcoe thereafter refused to return the collateral, her Cougar automobile. Eackles admits she never tendered the actual cash or a check to satisfy the amount owed Telcoe, but argues that was unnecessary. Eackles explains that she had told Telcoe that she would pay the amount due on the first or secured loan, but that Telcoe refused her offer, demanding, instead, the total amount owed on both loans. In addition, Eackles had her attorney follow up her offer by letter, advising Telcoe that she was “ready, willing and able” to tender the amount owed on the secured loan.

The issue for us to decide is narrowed, then, to whether Eackles’s verbal and her attorney’s written offers satisfy a lawful tender. If not, her action for conversion must fail, since Telcoe would not have been required to return Eackles’s car until a legal tender had been made. This court’s decision in Cook v. Talbert, 216 Ark. 370, 373, 225 S.W.2d 682, 684 (1950) is controlling. There, this court defined tender as follows:

“Tender is an offer to perform a condition or obligation coupled with the present ability of immediate performance, so that were it not for the refusal of cooperation by the party to whom tender is made the condition or obligation would be immediately satisfied.” Williston on Contracts, Rev. Ed., Vol. 6, § 1808. At § 180 of the same work in a discussion of the essential characteristics of tender it is said: “ There must be an unconditional offer to perform, coupled with a manifested ability to carry out the offer, and a production of the subject matter of the tender . . .” (Emphasis supplied.)

As already noted, Eackles undisputedly failed to produce the money or its equivalent as a part of her offer to perform (pay), and as a consequence, Telcoe had not been placed in a position of having refused it. We believe the facts of this case illustrate the underlying rationale of the rule adopted in Talbert. When Eackles defaulted on her loans, she was also without employment. Obviously, such circumstances, in themselves, appear inconsistent with her claim that she possessed the present ability of immediate performance, i.e., her ability to pay the secured-loan balance. We believe the rule requiring that an actual production of the subject matter of the tender — in this case, the money or its equivalent — is a reasonable threshold requirement of the law before imposing any liability against Telcoe for its refusal to return its collateral.

Finally, Telcoe urges that the trial court erred in failing to grant a new trial because the only evidence presented reflects that Eackles owed $2,358.47, not the $1,831.25 amount the jury awarded Telcoe on its counterclaim. Eackles’s only response to this point is that the jury must have awarded the reduced amount because of Telcoe’s wrongful conversion of her car. In view of our holding that no such conversion occurred, the jury’s consideration of that factor, in awarding damages, was misplaced. Because Eackles was indebted to Telcoe on two loans, and any damages resulting from her default on them are susceptible of definite pecuniary measurement, we must reverse and remand this matter for a new trial for the correct assessment of recovery. See Rule 59(a) (5) of the Arkansas Rules of Civil Procedure and Roberts v. Simpson, 275 Ark. 181, 628 S.W.2d 308 (1982).

Consistent with the foregoing, we reverse the judgment in its award of punitive damages to Eackles and remand this cause for trial on Telcoe’s counterclaim and request for the assessment of damages on the two loans.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree that the trial court should have granted a directed verdict in favor of Telcoe. I believe it was a fact question as to whether Telcoe had waived the requirement of a tender by making it clear, through its manager, Mrs. Sarah Mosely, that Telcoe would release Mrs. Eackles’ car only upon payment of the entire amount due, that is, the balance of the unsecured debt plus the$535.17 due on the debt secured by the automobile.

Mrs. Eackles testified that she offered to pay the $535 due on the car loan, but was told by Mrs. Mosely that she would have to pay both loans before the car would be released. Mrs. Mosely’s testimony clearly confirms Mrs. Eackles’ version (R.p. 93):

Q: Did you tell her (Mrs. Eackles) that you would not give her the automobile unless she paid both accounts?
A: I told her I wanted the money for both of them.
* * *
Q: In fact, weren’t you trying to collect those loans before you would release her car?
A: I asked for all of her balances.
Q: You made it clear to her that I’m not going to give you this car until you pay off every dime you owe?
A: Yes, sir. (R.p. 98).

Moreover, it is equally clear that Mrs. Mosely knew she had no legal right to take this position (R.p. 76-77):

Q: Mrs. Mosely, did you feel like, legally, you could retain this lady’s vehicle for an unsecured loan, a signature loan?
A: If she brought the money in I knew I couldn’t.
Q: If she brought the $500 in?
A: That’s right.
Q: You knew you couldn’t?
A: I knew I shouldn’t try.

Additionally, Mrs. Eackles’ lawyer sent a certified letter to Telcoe within a week of the repossession to say that Mrs. Eackles was ready, willing and able to tender the amount due on the secured debt and had already communicated that offer to Telcoe. The letter went on to state:

I understand Telcoe refuses to return Mrs. Eackles automobile unless she pays the balance owing on an unsecured loan . . . and it is my opinion that you are wrongfully holding Mrs. Eackles automobile resulting in damages to her.
If this automobile is not released immediately and my office contacted, I will have no alternative but to pursue further legal actions on Mrs. Eackles behalf for wrongful conversion of her automobile and for punitive and compensatory damages.

That letter went unanswered so far as this record is concerned and there is no evidence that Mrs. Mosely or anyone else at Telcoe ever indicated to Mrs. Eackles or her lawyer that Telcoe would accept any amount other than the entire amount. On these facts it was for a jury to decide whether tender was waived by Telcoe.

Our cases recognize that the requirement of a tender can be waived. In Miller v. Willey Real Estate, 257 Ark. 961, 521 S.W.2d 68 (1975), we said, “The law does not require a tender of payment where it would be a vain and useless effort.” And in Read’s Drugstore v. Hessig-Ellis Drug Co., 93 Ark. 497, 125 S.W. 434 (1910):

On general principles, whenever the act of one party, to whom another is bound to tender money, services, or goods, indicates clearly that the tender, if made, would not be accepted, the other party is excused from technical performance of his agreement. The law never requires a vain thing to be done.

In Athans v. Jones, 277 S.W.2d 192 (Tex. 1955) the court stated:

Although the debtor is not excused from tendering payment by reason of the creditor’s exorbitant demand, tender is excused when the demand for payment of a sum greater than that which is due under a contract implies a refusal to accept the sum which is due.

And see Hallowoa v. Buck, 174 Ark. 497, 296 S.W. 74 (1927).

The Missouri Supreme Court, in Owens v. Automobile Recovery Bureau, Inc., 544 S.W.2d 26 (1976), on facts very similar to those before us, determined that tender was waived where the creditor takes any position which would make “a tender a vain and idle ceremony,” so long as the position taken by the creditor is maintained.

Had Telcoe followed the simple expediency of answering the letter from Mrs. Eackles’ lawyer to state it was prepared to accept the correct amount, this needless litigation might well have been avoided. As it turns out, with the vehicle sitting in storage for nearly three years, everyone loses.

       The dissenting opinion suggests that because Telcoe demanded both loans be paid before it returned the vehicle to Eackles, the law would not require Eackles to do the vain and useless act of tendering payment only on the secured loan. This waiver theory was not argued on appeal or below nor did appellee request the trial court to instruct the jury concerning waiver. Instead, the trial court instructed the jury only that Eackles must prove that (1) Telcoe repossessed Eackles’s vehicle, (2) Eackles demanded return of her vehicle and (3) she made legal tender to Telcoe. Because Eackles never advanced the waiver theory here or below, we are unable to consider it in deciding this case.