author: Richard B. Adkisson, Chief Justice.

text:
    Betty VERMILLION and Ken VERMILLION v. Roger PETERSON d/b/a PETERSON CONCRETE CO. et al
    82-18
    630 S.W. 2d 30
    Supreme Court of Arkansas
    Opinion delivered March 29, 1982

      Gordon <¡r Gordon, P.A., by: Allen Gordon, for appellants.

      Laser, Sharp ¿r Huckabay, P.A., for appellant, Michael M. Pinson.

      Matthews & Sanders, by: Roy Gene Sanders, for appellee, Mickey E. Glover.
   Richard B. Adkisson, Chief Justice.

Appellant, Betty Vermillion, was injured on April 9, 1979, in a multi-vehicle collision in Faulkner County. She and her husband brought suit, alleging negligence by the drivers of the other two automobiles involved in the collision. At trial, appellants introduced into evidence a packet of medical bills, one of which had “Prudential” typed in the space designated for “hospitalization insurance company.” During closing arguments the attorney for two of the appellees, Peterson Concrete Company and its driver, Michael M. Pinson, stated that Betty Vermillion’s medical bills had apparently already been paid under Prudential policy no. [ XXX-XX-XXXX ], but that she had not informed the jury of that fact and would have them pay her again for those same expenses. Appellants moved for a mistrial or, in the alternative, an admonition directing the jury to disregard this statement. The trial court denied both motions. On appeal we reverse.

We have frequently held that the unnecessary injection of the existence of insurance into a case is reversible error, unless it is relevant to some issue in the case. Pickard v. Stewart, 253 Ark. 1063, 491 S.W. 2d 46 (1973). Here, the fact that Prudential may have paid appellant’s medical bills is not relevant to any issue being litigated.

Also, we cannot say that appellant put insurance into issue by the mere fact that “Prudential” was typed on one of the bills. This bill was only one of several in a packet of bills introduced by appellant, and appellant did nothing to call the jury’s attention to the space or the word “Prudential.” Even if the jury did see “Prudential” while examining the bills, there was nothing on the bill or in the testimony to indicate that Prudential had paid it.

Appellees argue that the error was harmless since the jury found that the accident was not caused by the negligence of the appellees. This argument overlooks the fact that the jury could have concluded there was no need to find appellees negligent and assess damages when appellant’s bills had already been paid. We stated in Amos v. Stroud, 252 Ark. 1100, 482 S.W. 2d 592 (1972) that recoveries from collateral sources do not redound to the benefit of a tortfeasor, even though double recovery for the same damage by the injured party may result.

When, as here, there has been an intentional and deliberate reference to insurance when it was not an issue in the case and when the opposing party had not opened the door for its admission, the declaration of a mistrial is the proper remedy. Pickard v. Stewart, supra.

Even though the attorney for appellee, Glover, was blameless, a reversal as to Glover is unavoidable because the positions of the appellants are inseparable under the circumstances of this case. And, the prejudicial remark did accrue to Glover’s benefit.

Reversed and remanded.


source: Caselaw Access Project

author:
George Rose Smith, Justice.
      Steele Hays, Justice.

license: Public Domain

text:
    Earl A. GIVENS and his wife v. Robert HIXSON
    81-243
    631 S.W. 2d 263
    Supreme Court of Arkansas
    Opinion delivered March 29, 1982
    [Rehearing denied May 3, 1982.]

      Jay W. Dickey, Jr., for appellants.

      Laser, Sharp ir Huckabay, for appellee.
   George Rose Smith, Justice.

In January, 1980, the plaintiff Hixson employed the defendant Givens to manage Hixson’s 800-acre farm property for one year. Givens went to work on February 1, but Hixson discharged him on March 19. When Hixson brought this action in unlawful detainer to recover possession of the house that Givens was occupying on the farm, Givens and his wife filed a counterclaim in which Givens sought damages for breach of contract and both he and his wife sought damages in tort for severe emotional distress and bodily harm caused by the alleged outrageous manner in which Givens was discharged. On the basis of the discovery depositions of both Hixson and Givens, Hixson moved for a summary judgment with respect to the tort claim only. This appeal from the partial summary judgment granting that motion comes to us as a tort case. Rule 29 (1) (o). The order is appealable. Findley v. Time Ins. Co., 264 Ark. 647, 573 S.W. 2d 908 (1978).

When, as here, the movant makes a prima facie case for a summary judgment, the other party must discard the cloak of formal allegations and meet proof with proof by showing that an issue of fact exists. Cummings, Inc. v. Beardsley, 271 Ark. 596, 609 S.W. 2d 66 (1980). We therefore disregard arguments based on the pleadings, such as the assertion that Hixson enticed Givens away from his former employer, and state the actual pertinent proof in its light most favorable to Givens.

Givens testified on discovery that in January, 1980, after having managed J. P. Walt’s farm, then 1,600 acres, for 21 years, he had trouble finding the necessary workers for that sized farm and decided to seek a job on a smaller place. His inquiries led him to apply to Hixson for the managership of Hixson’s 800-acre place. After the two men had agreed upon a one-year contract Givens for the first time told Walt that he was changing jobs.

On March 17 Hixson told Givens that he was dissatisfied with his work. On March 19 Hixson discharged Givens while the two men were outside a John Deere store, where Hixson thought Givens had been spending too much time idling. No one else was present. Givens’s total testimony about the firing amounted to this: Hixson’s face was red, and he talked “like he wanted to jump all over me. Said, ‘We’re through. You don’t work for me anymore.’ Told me to carry the truck and park it, and said: ‘I’ll put you in the road.’Just like that.” In somewhat different language Givens also described the incident in these words: “[H]e said, ‘We’re through.’ I asked him what he meant. He said, ‘You don’t work for me anymore.’ He said, ‘You haven’t been doing a thing all morning, but sitting down there on that stool around that fire.’ ”

Givens also testified that after the firing he was depressed, could not sleep or eat, lost weight, and entered a hospital a month later (apparently owing to a heart condition). He testified, however, that he had been hospitalized for angina pains in 1977 and had been taking medicine every day, that he had told Hixson that he was in pretty good health, and that Hixson knew nothing special about Givens’s condition and had not been told that Givens was easily upset.

The new and still developing tort of outrage is not easily established. It requires clear-cut proof. “Liability has been found only [our italics] where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement of Torts (2d), § 46, Comment d (1965); M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W. 2d 681 (1980). It is for the trial court to determine, in the first instance, whether the conduct may reasonably be regarded as so outrageous as to permit recovery. Restatement, id., Comment h. Merely describing conduct as outrageous does not make it so. If Givens’s testimony presents an issue of fact, then any employee who is abruptly discharged by an angry boss is entitled to have the asserted tort submitted to a jury. That is not the law. The trial judge was unquestionably right in granting the partial summary judgment. The action for breach of contract is still pending in the trial court and is not involved on this appeal.

Affirmed.

Hays, J., dissents.

Steele Hays, Justice.

I wholly disagree with the view that appellant’s cause of action should be summarily dismissed. I believe a tortious wrong has been alleged in his pleadings and supported in his deposition sufficient for submission to the jury.

I see no rational distinction between appellant’s claim and that of Shirley Ann Counce, reported in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W. 2d 681 (1980), where we unanimously upheld the Court of Appeals in reversing the granting of summary judgment by the trial court. In fact, this case seems stronger. Ms. Counce was accused only indirectly of dishonesty, whereas appellant was accused directly (and falsely) of laziness and neglect, qualities equally repugnant to employment. Ms. Counce’s employment was terminable at will, whereas appellant was hired for a year. The time, the manner and the aftermath of appellant’s firing was insensitive, if not abusive.

In sum, appellant contends he gave up a job he had held for 22 years as farm manager to accept appellee’s offer of a higher salary plus other benefits. He was hired to work from February 1 to December 31 and was told that appellee knew nothing about farming and that he was expected to manage the farm without interference. He was promised a new home, a truck, bonus and vacation. Six weeks later (too late to find comparable employment) he was fired, not for incompetence or neglect, but on the false accusation that he was loafing. Appellant described the firing, outside a John Deere dealership, as follows: “[appellee] said, 'We’re through. You don’t work for me anymore.’ Told me to carry the truck back and park it and said, ‘I’ll put you in the road.' Just like that.” Two weeks later eviction proceedings were brought against appellant and his family, not from a need of the dwelling, which remained vacant, and executed while appellant was hospitalized for mental and emotional disturbances which he attributes to the alleged mistreatment.

Viewing these circumstances as a whole, and giving them the fullest import required by our cases, I am unwilling to say as a matter of law appellant has no recourse in tort. I believe reasonable minds could reach different conelusions as to whether appellee’s conduct meets the test of tortious outrage. I would reverse and remand the case for trial.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    ARKANSAS EMPLOYMENT SECURITY DIVISION v. NATIONAL BAPTIST CONVENTION U.S.A., INC.; NATIONAL BAPTIST HOTEL AND BATH HOUSE
    81-248
    630 S.W. 2d 31
    Supreme Court of Arkansas
    Opinion delivered March 29, 1982
    [Rehearing denied April 19, 1982.]

      Herrn Northcutt, for petitioner.

      Campbell ir Campbell, by: R. Scott Campbell, for respondent.

      Purtle, J., would grant the petition.

   George Rose Smith, Justice.

The question is whether the respondent, National Baptist Convention U.S.A., Inc., is required to pay the state employment security tax upon the payroll of employees at the Convention’s combined hotel and bathhouse in Hot Springs.

The Convention is an association of some 7,000 Baptist churches throughout the United States. It owns the hotel-bathhouse. That establishment is run for profit and is open to the public except for a week every January when the Convention holds its midwinter meeting there. In this proceeding the Convention applied to the Employment Security Division for an exemption from the payroll tax. The Board of Review denied the exemption, finding that “the employees of the hotel and bathhouse are not employed by nor paid by the National Baptist Convention. Rather they are paid from a bank account carried in the name of the National Baptist Hotel and Bath House maintained in Hot Springs.” The decision of the Board of Review was affirmed by the circuit court, but reversed by the Court of Appeals. National Baptist Convention v. Ark. Employment Security Division, 3 Ark. App. 189, 623 S.W. 2d 852 (1981). We granted certiorari to review a tax question of significant public interest and a point of statutory construction.

The issue is one of law, there being no dispute in the facts. The Convention’s governing board appoints a three-member commission to supervise the Hot Springs establishment. When the case was presented below, one commissioner lived in Little Rock and another in New Orleans, the third position being vacant. The commissioners had employed E. L. Puckett as manager of the facility, and he in turn employed the persons working there. Net profits belong to the Convention.

The exemption now claimed by the Convention rests upon a subsection of our Employment Security Act (copied verbatim from the federal statute, 26 U.S.C. § 3309 [b]), which provides that the term “employment” does not apply to service performed:

(i) in the employ of (I) a church or convention or association of churches, or (II) an organization [our italics] which is operated primarily for religious purposes and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches. [Ark. Stat. Ann. § 81-1103 (i) (1) (D) (Repl. 1976).]

Thus the Convention is exempt under Clause I if the hotel and bathhouse staff are its employees. On the other hand, since the facility is not operated primarily for religious purposes, there is no tax exemption if the workers are employed by some subordinate organization controlled by the Convention.

The pivotal question, then, is: What is an organization under Clause II?

The Employment Security Act, owing to its many subsections, special provisions, and exceptions, appears at first blush to be complicated, but the statutory scheme as it applies to this case is actually simple. The taxes now in controversy, called contributions, are levied upon employers as payroll taxes. § 81-1108 (a) and (b). Such contributions are defined as the money to be paid by an “employing unit” having individuals in its employ. § 81-1103 (d). The legislative definition of an employing unit is decisive of this dispute:

‘‘Employing unit” means any individual or type of organization [our italics], including any partnership, association, trust, estate, joint-stock company, insurance company or corporation... which has... one or more individuals performing services for it within this State. [§ 81-1103 (g).]

Thereafter, in this same Section 81-1103, the word organization is repeatedly used by itself, unquestionably as a shorthand reference back to the earlier definition that includes a partnership, association, trust, and so on. Thus what the section does is simply to define an employing unit (employer) as either an individual or an organization. As far as this case is concerned, the language of the statute contemplates no other form of employing unit.

The exemption now in question applies under Clause I to an ‘‘association of churches,” which precisely describes the Baptist Convention, or applies under Clause II to some subordinate organization qualifying as an employing unit. No such entity exists in this case. The three-member commission does not have title to the property, has no funds of its own, is not a partnership or other form of organization, and merely employs Puckett to manage the facility. Thus there is wholly lacking the intermediate employing unit that would be required to pay the taxes if the Convention’s own exemption is not applicable.

If there were any remaining doubt about the legislative intention to make subordinate personnel the direct employees of the first higher organization qualifying as an employing unit, that doubt would be completely dispelled by the following explicit subparagraph in the definition of an employing unit:

Each individual employed to perform or to assist in performing the work of any person in the service of an employing unit [here the Convention] shall be deemed to be engaged by such employing unit for all the purposes of this act, whether such individual was hired or paid directly by such employing unit or by such person, provided the employing unit had actual or constructive knowledge of the work. [Our italics.] § 81-1103 (g) (2).

Hence neither the supervisory commission nor the manager of the establishment supplants the Convention as the employing unit. The Convention is therefore exempt under Clause I, the alternative Clause II being inapplicable.

We mention two minor aspects of the case. The Board of Review referred to our constitutional exemption of churches from property taxes, Ark. Const., Art. 16, § 5, pointing out that the hotel-bathhouse is not used for church purposes. This case, however, involves an excise tax, not a property tax. Second, counsel for the Employment Security Division quotes this observation from a tax-service publication: “Thus, the service of the janitor of a church is excluded, but the service of a janitor for a separately incorporated college, although it may be church related, is covered.” CCH Unemployment Insurance Reports, § 1356, p. 4349 (1981). Of course the controlling difference is that in the example given the incorporated college would be a taxable organization, but there is no such taxable entity to be interposed in the case before us.

Affirmed.

Adkisson, C.J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because I believe the majority has misinterpreted the employment security act. The part of the act in question is properly stated by the majority but, nevertheless, I wish to repeat it at this point:

. . . the term “employment” does not apply to service performed:
(i) in the employ of (I) a church or convention or association of churches, or (II) an organization which is operated primarily for religious purposes [my italics] and which is operated, supervised, controlled, or principally supported by a church or convention or association of churches ... (Ark. Stat. Ann. § 81-1103 (i) (1) (D) (Repl. 1976).)

It seems to me the majority holds that Clauses I and II are exactly the same in application. In other words, the majority’s holding is that Clause II means any organization which is operated, supervised, controlled or principally supported by a church, convention or association of churches is exempt. This renders useless the words “ . . . which is operated principally for religious purposes ...” The majority has emphasized the two words “an organization” which is merely a descriptive phrase and has nothing to do with the intent involved. This section is designed to exempt the classifications stated in Clause I above and those in Clause II so long as they are operated principally for religious purposes.

Under the holding of the majority it is quite possible that a church could own a hog farm, furniture factory, ammunition supply depot, or chain of grocery stores and still be exempt from paying employment security taxes. I cannot bring myself to believe that such was the legislative intention when this was enacted. Theoretically, the churches, conventions, associations and other religious organizations could monopolize the employment market and entirely defeat the purposes of unemployment benefits.

The National Baptist Convention U.S.A., Inc. has its headquarters in Chicago, Illinois. It consists of 7,000 churches. One of the churches is not the Hot Springs Hotel and Bath House. In fact, the convention owns the bath house in Hot Springs which is in direct competition with other bath houses at least 90% of the time. If there is any religious purpose connected with the National Baptist Hotel and Bath House, other than the occasional meetings attended by church members, it is not revealed in the record. Admittedly, the religious use of the bath house amounts to less than 10% of the total use of the facility. None of the funds received from the operation of this business is deposited to the credit of the National Baptist Convention U.S.A., Inc. To the contrary, the funds are deposited either to the account of the National Baptist Sanitarium or National Baptist Hotel. It is from these last mentioned funds that the employees are paid. No employees are paid by the National Baptist Convention U.S.A., Inc. The funds from which they are paid are generated by a business operated in head-to-head competition with other commercial businesses in Hot Springs, Arkansas.

In my opinion, when a church ventures outside its religious purposes and enters into the private business sector it should be guided by and subject to the same laws as others engaged in the same type business. If one person was employed by the National Baptist Bath House and another person by a neighboring bath house, each performing the same type of work until discharged through no fault of their own, the one could draw unemployment benefits but the one who had been employed by the Baptist Bath House could not draw benefits. This cannot conform to the intent of the legislative enactments as embodied in the plain language of the employment security act.

I cannot find any evidence in the record that the bath house is “operated principally for religious purposes,” which is what it would take to convince me that the enterprise should be exempted. Therefore, I would reverse the holding of the Court of Appeals and reinstate the circuit court’s judgment affirming the Employment Security Division.


author: Frank Holt, Justice.

text:
    Wardell WILLIAMS and TG&Y STORES v. Kinerd GATES et ux
    81-245
    630 S.W. 2d 34
    Supreme Court of Arkansas
    Opinion delivered March 29, 1982

      Rose Law Firm and Wright, Lindsey & Jennings, for appellants.

      David Hodges and Henry Hodges, for appellees.
   Frank Holt, Justice.

This appeal results from a jury’s finding that the appellants were liable for injuries received by appellees as a result of a traffic accident. Appellee Kinerd Gates was awarded $25,000 damages and his wife, appellee Christine Gates, was awarded $5,000 for loss of consortium. Appellants first contend that the court erred in excluding the proffered testimony of the investigating officer regarding similar automobile accidents in the near vicinity within the general time frame.

According to Gates, on January 19,1979, he was driving his pickup truck when a vehicle ahead of him slowed and stopped to avoid a dog crossing the highway. Gates, driving about 50 m.p.h., stopped about 15' behind the vehicle either to avoid striking the dog, the forward vehicle, or both. Although the weather was foggy, it was no real problem. It was not such that “you couldn’t see your hand in front of you.... ” “You could see pretty good out there.” According to appellant Williams, an employee of appellant TG&Y Stores, he had followed Gates about a half mile and was approximately seven car lengths behind him traveling about 35 m.p.h. Upon seeing Gates’ brake lights about 140' away, he applied his brakes but his vehicle “hydroplaned,” causing him to strike the rear of the Gates vehicle. He described the weather conditions as being very foggy, misting rain, and “visibility was very low.” The weather conditions were such that it “would have been impossible to have avoided running into the rear of his vehicle . . . Well, the weather conditions played a major part, because it was very foggy. And visibility was very low.”

Appellants proffered the investigating officer’s testimony that he had received numerous reports of similar accidents in the vicinity which had occurred in the area about the same time as the accident here. When he arrived at the scene of this accident some ten minutes afterwards, a tractor trailer rig had hit appellant Williams’ vehicle, which was near the highway shoulder. A Trailways bus had gone into the median near the scene. The officer subsequently investigated two other accidents within the hour and two or three miles of this one. The officer testified he was not present when any of the accidents occurred and did not know what the weather conditions were from noon until 1 p.m. when he came to this accident scene. Appellants argue that this proffered testimony of these other accidents was “relevant evidence,” Rules 401 and 402, Uniform Rules of Evidence, that the weather conditions contributed to the accident. Further, its probative value was for the jury. The court refused the proffer.

Appellants cite Little Rock Gas & Fuel Co. v. Coppedge, 116 Ark. 334, 172 S.W. 885 (1915); and Ark. Power & Light Co. v. Johnson, 260 Ark. 237,538 S.W. 2d 541 (1976), as authority for the admissibility of the proffered testimony. We first observe that the facts in these cases are quite dissimilar to those in the instant case. In Coppedge, the condition presented as being similar was that the gas pressure was improperly maintained in a pipe that supplied the Coppedge house as well as other customers in the area. The Coppedge stoves and those of other customers were essentially the same. In Johnson it appears that the parties there agreed that the physical conditions existing at the time of the subsequent accident were identical. Here the facts are obviously dissimilar. Furthermore, in Coppedge and Johnson the court allowed proof of similarity of conditions and we upheld the rulings on the basis that it was not an abuse of discretion. Here, the court refused the proffer. In Johnson, we said:

Admission of evidence of subsequent incidents, like that of prior incidents poses the question of relevancy, even though the admission of the former must be approached with greater caution than the latter. Questions of relevancy address themselves to the sound judicial discretion of the trial judge. The exercise of that discretion should not be reversed on appeal except for manifest abuse.

Here, suffice it to say that appellants have not demonstrated there was a manifest abuse of discretion by the trial court.

Appellants next contend that the trial court erred in instructing the jury (AMI 2201 and 2204) that future medical expenses are a proper element of damages. They argue that these expenses are based entirely on speculation and conjecture. We cannot agree. The appellee Gates, 62 years of age, testified that he cannot turn his head very well; his nerves are “shot” since the accident, and he cannot sleep at night; he is often stiff all over; he cannot help with chores around the house; he has had to discontinue his outdoor recreational activities, such as fishing and hunting, as a result of the accident. His injury has required hospitalization, medication and rehabilitative treatments. He is currently on medication and treatments which provide only temporary relief. As of the date of trial appellee’s medical expenses were $5,599.32.

Gates produced medical testimony that as a result of the accident he suffered severely from a cervical sprain syndrome or a neck injury. He was hospitalized on four occasions: January 20-February 2, 1979; March 10-20, 1979; May 14-16, 1979; and September 16-22, 1979. He has been continuously on medication and some therapy. There is damage to the soft tissue in the neck which will cause intermittent difficulty for the rest of his life and will require future medication. An examination one month prior to trial, which was two years and three months after the accident, indicated the residual presence of chronic pain syndrome; and an arthritic condition, which became symptomatic after the accident, is irreversible and would progressively worsen. X-rays indicate some disc protrusion exists. Gates would suffer “from now on a chronic pain in the cervical area.” Gates was regarded as being in good health before the accident.

We have held that it is not speculation and conjecture to calculate future medical expenses that have accrued as of the date of trial. Belford v. Humphrey, 244 Ark. 211, 424 S.W. 2d 526 (1968); Haney v. Noble, 250 Ark. 557, 466 S.W. 2d 467 (1971); and Ark. Power & Light Co. v. Heyligers, 188 Ark. 815, 67 S.W. 2d 1021 (1934). Here, in addition to the history of the medical expenses which had accrued and the seriousness of the injury, there is also a degree of medical certainty as to the need for future medication. We hold there is sufficient evidence from which the jury could fairly infer that future expenses for medicine and medical attention will be necessary.

Affirmed.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice,

text:
    Ron HAMBY v. Waltrand Amelia HASKINS
    81-241
    630 S.W. 2d 37
    Supreme Court of Arkansas
    Opinion delivered March 29, 1982

      Rex M. Terry, of Hardin, Jesson ir Dawson, for appellant.

      Robert R. Cloar, for appellee.
   Robert H. Dudley, Justice.

Appellee Waltrand Amelia Haskins and her sister were driving in rural Sebastian County one afternoon in June of 1976 looking for a garage sale. After they were unsuccessful in finding its location, they stopped at appellant Ron Hamby’s house to ask directions. The yard was not fenced and there was a large dog on the ground near the porch. Appellee got out of the car, walked up on the porch and knocked on the door. No one answered so appellee stepped off the porch and started walking back to the car when the dog bit her on the left calf and subsequently began barking. Appellee got back in the car and her sister drove to the police station in nearby Hackett. The Hackett police officers went back to appellant’s residence and found it necessary to subdue the snarling dog with mace. An ambulance was called and appellee was transported to a hospital where she was treated and released. Because of gangrene and other complications, appellee was admitted to the hospital on two later occasions. Her medical bills totaled $1,734.45 and her loss of wages over a two-month period equaled $800. Appellee’s complaint alleged strict liability and negligence on appellant’s part as owner of a vicious dog and sought $20,000 in damages. Appellant responded that appellee was a trespasser on his property and that he had no knowledge of the vicious nature of the dog. Trial by jury resulted in a verdict of $12,000. We affirm.

Appellant argues that the evidence is insufficient to support a j ury verdict because the appellee did not prove that the dog had a propensity to injure and that the owner had knowledge of those vicious tendencies. In Bradley v. Hendricks, 251 Ark. 733, 474 S.W. 2d 677 (1972) this court said:

... It is well settled in Arkansas that when a person is injured by a domestic animal legally permitted to run at large by its owner, in order for the injured person to recover damages from the owner without the necessity of proving the owner’s negligence, it must be shown that the animal has vicious tendencies or dangerous propensities and that the owner knew, or should have known, of such tendencies or propensities . . . The evidence as to the owner’s knowledge boils down to a question of credibility and this too, is a question for the jury.

The j ury found that appellant knew that the dog had vicious tendencies and there was substantial evidence for that finding. There was testimony that appellant knew the dog had been penned up by its prior owner. There was testimony that when police officers went back to appellant’s residence to investigate, the dog began barking and snarling and attempted to bite both officers and they found it necessary to subdue the dog by the use of two cans of mace. The dog was then tied up for ten days in order to test it for rabies and appellant subsequently allowed the dog to roam free, even though he knew it had bitten appellee. Subsequent conduct is admissible to prove the particular animal’s dangerous nature. Finley v. Smith, 240 Ark. 323, 399 S.W. 2d 271 (1966). And language in Reeves v. John A. Cooper Co., 304 F. Supp. 828 (W.D. Ark. 1964) is dispositive of appellant’s claim that he did not have knowledge of the dangerous propensity of his dog.

The rule of ascertaining scienter is that the knowledge need not necessarily be actual, in the ordinary acceptation of that term, either constructive or imputed notice being sufficient, and if in the exercise of reasonable diligence and common prudence the owner ought to have known that his animal was dangerously inclined and might, if unrestrained, inflict injury upon the person or property of another, he is chargeable with actual notice of vicious acts committed by it.

In determining the sufficiency of the evidence, we review the evidence and all of its reasonable inferences in the light most favorable to the appellee and affirm if there is any substantial evidence to support the finding of the jury. Thrifty Rent-A-Car v. Jeffrey, 257 Ark. 904, 520 S.W. 2d 304 (1975). Viewing the evidence and its inferences in the light most favorable to appellee there is substantial circumstantial evidence from which the jury could find that the appellant knew or ought to have known, of the vicious nature of the dog. Appellant continues this argument by contending that since he testified that he did not have actual knowledge of the dog’s vicious tendencies the evidence is undisputed. But a party’s testimony cannot be considered undisputed or uncontradicted. Roberts v. Simpson, 275 Ark. 181, 628 S.W. 2d 308 (1982); Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829 (1969).

Appellant’s second point for reversal is that the verdict was not supported by any substantial evidence of willful and wanton misconduct on his part. He urges this standard applies because appellee was classified as a trespasser in the instructions given to the jury and the only duty owed to a trespasser is not to willfully or wantonly injure him after his presence is known. Southwestern Bell Telephone Co. v. Davis, 247 Ark. 381, 445 S.W. 2d 505 (1969); AMI 1102. [There were no objections to the instructions and we do not consider unargued issues. However, we do note that the doctrine of strict liability is the law in Arkansas with regard to an animal known to be vicious. Strange v. Stovall, 261 Ark. 53, 546 S.W. 2d 421 (1977)]. Appellant asserts that because neither he nor any of his family were at home when the incident took place then he could not be guilty of this type of gross negligence. The jury obviously found that the appellant was guilty of willful or wanton conduct by not having the dog penned up. The testimony showed that the dog’s prior owner kept it penned up and this evidence, coupled with evidence that appellant allowed the dog to continue to roam free even after it bit appellee, was sufficient evidence on which to base the verdict.

The instruction may have been more favorable than necessary as the Restatement (Second) of Torts, § 330, p. 174, referring to a “license created otherwise than by words” is as follows:

. . . “The well-established usages of a civilized and Christian community” entitle everyone to assume that the possessor of land is willing to permit him to enter for certain purposes until a particular possessor expresses unwillingness to admit him. Thus a traveler who is overtaken by a violent storm or who has lost his way, is entitled to assume that there is no objection to his going to a neighboring house for shelter or direction ....

This common sense statement is applicable to the case before us.

Appellant next contends that the matter of insurance was improperly included in voir dire. Counsel for appellee asked the jury panel if any of them, their spouses or close relatives were employed by an insurance carrier. One prospective juror mentioned that his wife had been employed by the company which he thought to be appellant’s insurance company until a short time ago. A few others also mentioned connections with specific insurance carriers. Appellant objected to the fact that the panel had been placed on notice that insurance was involved. The rule in Arkansas as to this point seems clear. In Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W. 2d 16 (1956), this court said, “The test of whether counsel may ask questions of veniremen in regard to insurance is whether the questions are propounded in good faith.” Since insurance was involved here, the question of good faith is settled. This issue was also discussed in King v. Westlake, 264 Ark. 555, 572 S.W. 2d 841 (1978) where this court said:

. . . the purpose of voir dire examination is to enable counsel to ascertain whether there is ground for a challenge of a juror for cause, or for a peremptory challenge and that so long as counsel acts in good faith, he may in one form or another, question prospective jurors respecting their interest in or connection with liability insurance companies.

The general questions asked by appellee did not violate this rule. DeLong v. Green, 229 Ark. 100, 313 S.W. 2d 370 (1958).

Appellant’s last point for reversal is that the damages awarded were excessive. Appellee’s medical bills and lost wages totaled $2,534.55 and she was awarded $12,000. There was evidence as to pain and suffering by the appellee as she endured two subsequent hospitalizations, one for the removal of gangrenous tissue and the other for skin grafting. Appellee also spent two months recuperating at her parents’ home with her leg elevated most of this time. Appellee now has two three-inch square scars which are clearly visible five years after the accident. There is no definite and satisfactory rule to measure compensation for pain and suffering and the amount of damages must depend on the circumstances of each particular case. Morrison v. Lowe, 274 Ark. 358, 625 S.W. 2d 452 (1981). Compensation for pain and suffering must be left largely to the sound discretion of a trial jury and the conclusion reached by it should not be disturbed unless the award is clearly excessive. Missouri Pacific Railroad Co. v. Hendrix, 169 Ark. 825, 277 S.W. 337 (1925). Wedonotfind the award of damages so shocking that we will order a remittitur.

Affirmed.

Adkisson, C.J., concurs.

Hickman, J., dissents.

Darrell Hickman, Justice,

dissenting. The facts and the law are equally significant in this case. Only an in-depth examination of both will reveal whether we have arrived at the right decision.

The appellee, Mrs. Haskins, was bitten by a dog at the rural residence of the appellant, Ron Hamby. She and her sister were in the vicinity of the appellant’s farm looking for a yard sale. They stopped at the appellant’s house to seek directions. They saw no vehicles nor anyone about the place. The appellee went to the door and, as she was returning to her vehicle, she said a “black and white dog” about the size of a collie bit her. They reported the matter to the local police in Hackett. The sister, two police officers, and the employer of the appellee’s sister, returned to the appellant’s house. Apparently both officers got out, saw a dog which growled and snarled at them, and then one of the officers “maced” the animal. The appellant was told of the incident and he put the animal up for the required number of days. Although the appellee sought medical treatment, gangrene set in and she suffered real injury. Later, the son of the appellant said he shot the dog because it was limping and he thought it had been struck by a vehicle.

The legal duty of an owner of a domestic animal is fairly well established. The owner has a duty to the public to either pen up that animal or warn the public of its presence. But there is no such duty unless an owner knows or clearly should have known the animal is vicious. Bradley v. Hendricks, 251 Ark. 733, 474 S.W. 2d 677 (1972). Of course the animal’s location at the time of the injury is significant. In every case that we have decided, the animal has either been off the premises of the owner or in a public place. Furthermore, in every case we have decided, the evidence was substantial that the owner knew or clearly should have known the animal was vicious or had a propensity to harm people.

In Holt v. Leslie, 116 Ark. 433, 173 S.W. 191 (1915), the Missouri & North Arkansas Railroad was sued when a bull dog bit the plaintiff. The dog had been shipped to Leslie, Arkansas from Missouri. It arrived in a crate, chained. The crate was marked, “Be careful. Hands off.” There was an abundance of other credible evidence that the station master knew the dog was dangerous. Even so, he removed the dog from its crate and allowed his son to walk it about the station. (Evidently the man to whom the dog was shipped did not want it and delayed acceptance.) We upheld a verdict against the railroad and recognized the general doctrine regarding the liability of owners of domestic animals:

If one knowingly keeps a vicious or dangerous animal, one accustomed to bite mankind, he is liable for injuries done by such animal, without proof of negligence as to the manner in which the animal was kept or handled. The mere keeping of such an animal, knowing its vicious and dangerous qualities, is at the risk of the owner (except as to trespassers) and renders him liable in damages to one injured by such animal. [Emphasis added.]

The Holt decision is significant for several reasons: (1) It was at a public place, a railroad depot; and, (2) The agent had direct knowledge the animal was dangerous before it bit the plaintiff.

In Field v. Viraldo, 141 Ark. 32, 216 S.W. 8 (1919), we dealt with a vicious bull. It attacked the appellee one night at her home immediately in front of her house. There was considerable evidence the bull had violent propensities when loose, as it had been on two prior occasions. We held the rule to be:

. . . that the owner is liable for a trespassing animal whether he knows of the vicious propensities or not, and is liable for injuries inflicted by a vicious animal, not trespassing, only in case of knowledge on the part of the owner of such propensities of the animal. The liability in one case rests on the fact that the animal is trespassing, and in the other on the known vicious propensities of the animal, the law placing on the owner the duty of restraining the animal of known vicious propensities. . . . [Emphasis added.]

McIntyre v. Prater, 189 Ark. 596, 74 S.W. 2d 639 (1934) is another vicious bull case. This bull attacked the plaintiff while she was in her yard picking up wood. It had broken out of its pasture. The plaintiff testified that the owner of the bull told her, “ ... the bull was vicious; and that it had been necessary to remove the bull from the farm operated by his brother to prevent the animal from injuring the children.” Needless to.say, we reversed a verdict in favor of the owner of the bull, holding it was for the jury to decide whether the owner knew the animal was vicious.

In Bradley v. Hendricks, supra, we considered a case of a dog biting a child. The incident occurred in the City of Morrilton, at the house next door to the child’s residence. It did not occur at the residence of the owner of the dog. In Bradley, for the first time, we stated that an owner of a domestic animal could be held liable because the owner “should have known of such tendencies or propensities.” But we were careful in applying that statement. We prefaced our decision in Bradley with the statement that “ . . . The evidence in this case presents a close and difficult question” on substantial evidence. The evidence the dog had vicious propensities came from three witnesses. A Mr. Hendricks said the dog growled at him on more than one occasion as he went to work, and growled at his daughter and nipped at her heels when she passed in front of the owner’s house. Two other witnesses said the dog had growled at them. We found this to be substantial evidence.

In Strange v. Stovall, 261 Ark. 53, 546 S. W. 2d 421 (1977), a child was bitten by a dog known to be vicious. The incident occurred at the child’s grandparents’ home. The dog belonged to relatives visiting the grandparents. The owner admitted to two witnesses the animal was mean and had bitten him several times.

How does this case square with our prior decisions? The most obvious difference, of course, is the fact that in this case the appellee was a trespasser. And the incident occurred at the owner’s residence, a rural farm. Equally important, there is no evidence at all the owner knew the dog was vicious before this incident.

The owner in this case had a right to keep a dog at his farm and a right to expect people not to trespass. The appellee was an admitted trespasser on his property and the only duty owed her was not to injure her by a willful and wanton act. Southwestern Bell Telephone Co. v. Davis, 247 Ark. 381, 445 S.W. 2d 505 (1969). That legal relationship places the appellee in a position of having to meet a heavy burden of proof, much heavier than that of one who is an invitee, as was the case of the bull dog at the railroad depot, or, in every other case cited, where the incident occurred off the premises of the owner.

The jury was instructed in this case that the appellee was a trespasser and that the owner of the property owed the trespasser no duty until he knew of the presence of the trespasser on his property. And, most significantly, the jury was instructed, “An owner or person having custody of a domestic animal which he knows has a tendency to injure other persons keeps custody of that animal at his own risk and is liable for inj ury and damage caused by the animal. If, however, the damage occurs upon the defendant’s premises and plaintiff is a trespasser, then the owner or keeper of the dog is only liable for injuries if he acted with willful and wanton misconduct which was the proximate cause of plaintiff’s injury.”

Of course if the owner in this case knew the dog was vicious, or even if he clearly should have known the dog was vicious, he should have either penned up the animal or posted a warning. But where is the substantial evidence the owner knew or should have known that in this case? And there is no evidence he knew of the presence of the trespasser.

The majority recites three facts to support its conclusions. I submit that two of them cannot stand examination and the third, while more credible, cannot alone support a verdict.

The first fact cited is the bare statement the owner knew the dog had been penned up by its prior owner. The majority implies that the owner knew the dog had been penned up by its owner because it was vicious or had vicious propensities. I respectfully suggest the majority has inaccurately characterized the evidence. Only the record can settle my disagreement with the majority opinion.

The son of the appellant got this dog from a neighbor farmer about two weeks before the incident. The son had been with the dog when he fed the livestock of the neighbor who was absent from time to time. The son testified:

Q. He kept the dog penned up there did he not?
A. I let it run out some, but when I wasn’t there I penned it up.
Q. Did Hardwick [the previous owner] keep the dog penned up or tied up?
A. No, Don didn’t tie him — just when nobody was there.

There is no evidence that the son knew the dog was vicious before it was given to him or knew it had been penned up because it was vicious.

The second fact’s import eludes me entirely. The majority finds that since the owner penned up the dog, for the required number of days after the biting, and then let the dog loose, that is evidence the owner knew the dog was vicious. How this bears on the issue that the owner should have known the dog would bite before it did, escapes me. If anything, it simply shows the owner did not consider the dog vicious at all. In fact the owner in this case seriously questioned whether his dog actually bit the appellee. Evidence was offered that a German shepherd ran loose in the neighborhood which was known to have violent propensities.

The third fact used by the majority is the incident with the two policemen, which occurred after the appellee was bitten. Neither the appellant nor his son was there. The two policemen got out of their vehicle and when the dog snarled and growled at them, they “maced” it.

The relevant testimony from the officer reads:

Q. You said Mr. Miner [a policeman] used mace on him?
A. Yes.
Q. Did he attempt to bite Miner?
A. We were under the impression he was going to bite. Like I say, he showed his teeth and snarled at Miner and all of this. He was kind of a strange looking dog. He just stood there and looked at you eye to eye. He just stood there and looked at you when you turned your back on him. He was on the offensive.
Q. When you turned your back on him he would then get offensive?
A. Yes, sir. That was the situation we got in to. When Miner first got out and he was standing there looking at him, he was expecting the dog to do something and he didn’t; he just stood there and looked at him. And when he started to turn around and turned his back it was when the dog started snarling and growling. Of course at that time, he just unloaded the mace on him.
Q. When he turned his back on him, did the dog approach him from the back?
A. It seems like he did.
A. Refreshing my memory from the report, the dog did attempt to bite both of the officers while we were there.
Q. Did you do anything to provoke the dog?
A. No, sir.
Q. When you had this impression that you testified about, you had the impression that the dog was going to bite, was that before or after Officer Miner sprayed him with mace?
A. At that point Officer Miner’s weapons were still in the holster and so were mine.

Viewing the testimony of the officers favorably, as we must, they were afraid the dog was going to bite them, but I cannot concede that the evidence was conclusive the dog “attempted to bite” both officers.

There was no evidence offered which showed this particular dog had violent propensities; that anyone knew the dog was vicious; or that anyone knew at any time, any place, or anywhere, that this particular dog had ever growled at, snarled at, or bitten anyone before this incident. And that is the issue: What the owner knew before the incident.

With all due respect, the precedent set by the majority opinion in this case is bad for two reasons: First, it completely ignores the duty of an owner of a domestic animal to a trespasser. In all of our cases similar incidents have either occurred off the premises of the owner, or at a public place — not on the private property of the owner. There is no evidence at all that the owner in this case knew that the dog was vicious before the incident. Second, it uses facts to support its conclusions that would not support a verdict against the owner of a domestic animal if our prior cases control. The majority has not been as careful as we were in the Bradley case or its predecessors.

Where is the substantial evidence that this owner should have known of the propensities of this dog before the incident? Is an owner strictly liable to a trespasser in such cases based on facts which occur after the fact? That is contrary to AMI 1602 as amended by 1603. See Strange v. Stovall, supra; Finley v. Smith, 240 Ark. 323, 399 S.W. 2d 271 (1966); Vangilder v. Faulk, 244 Ark. 688, 426 S.W. 2d 821 (1938). Is an owner of a domestic animal to be held liable for an animal’s act when there is no evidence at all that he should have known the dog would bite strangers? On his own farm?

I would reverse the judgment and dismiss the case.


author: Robert H. Dudley, Justice.

text:
    Ella Mae THOMAS v. Modean GERTSCH, Emmette D. THOMAS, Eula Faye THOMAS, His Wife, and Dewey THOMAS
    81-257
    630 S.W. 2d 43
    Supreme Court of Arkansas
    Opinion delivered March 29, 1982

      W. B. Guthrie, Jr., Ltd., by: Robert M. Abney, for appellant.

      Homer Tanner, for appellees.
   Robert H. Dudley, Justice.

Appellant Ella Mae Thomas filed suit in chancery court alleging that she had been unduly influenced and coerced into relinquishing her dower interest in a 220 acre tract of land previously owned by her late husband and conveyed to their children, the appellees. The warranty deed to this tract was executed on May 21, 1976, and reflects the relinquishment of appellant’s dower interest. Appellant alleged in her complaint that at the time of the execution of the deed she was on medication, suffering from mental and physical problems. Her husband died on October 31, 1979, and appellant’s complaint was filed on December 3, 1980. Appellees moved for dismissal of appellant’s complaint alleging that the appellant had no cause of action because the statute granting her an inchoate right of dower had been declared unconstitutional in Stokes v. Stokes, 271 Ark. 300, 613 S.W. 2d 372 (1981) and Hess v. Wims, 272 Ark. 43, 613 S.W. 2d 85 (1981) handed down on February 23, 1981. Appellant responded to this motion by stating that Act 714 of 1981 which was passed in March of 1981 to cure the defects in the dower statutes should be applied in this case. The trial court sustained the motion to dismiss finding that the appellant had no vested right of dower, basing the decision on Stokes and Hess. We affirm.

Appellant admits that Act 714 of 1981, which was passed to cure the defects in our dower laws and related statutes, is not applied retroactively. Huffman v. Dawkins & Holbrooks, 273 Ark. 520, 622 S.W. 2d 159 (1981); Bennett v. Bennett, 275 Ark. 262, 628 S.W. 2d 565 (1982). However, the appellant contends that the trial court erroneously gave Stokes and Hess a retroactive application. The trial court was correct because the appellees raised the issue of the invalidity of our dower statute before any dower rights were vested in appellant, just as was done in Stokes and Hess. The appellant did not have a vested right in lands formerly owned by her husband on the date of his death. "Thus the present appellant ... is in precisely the same position as were Mrs. Stokes and Mrs. Wims in the earlier cases. Those decisions are not being applied retroactively when we treat her exactly as they were treated.” Hall v. Hall, Ex’r, 274 Ark. 266, 623 S.W. 2d 833 (1981).

Affirmed.


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

text:
    William E. BAXTER v. GROBMYER BROTHERS CONSTRUCTION COMPANY et al
    81-181
    631 S.W. 2d 265
    Supreme Court of Arkansas
    Opinion delivered March 29, 1982
    [Rehearing denied May 3, 1982.]

      McMath ir Leatherman, by: Junius Bracy Cross, Jr., for appellant.

      Wright, Lindsey <t Jennings, for appellees.

      Purtle, J., would grant rehearing.

   Steele Hays, Justice.

William E. Baxter, a steel worker for Barg Steel Company, Inc., sustained serious injuries when he fell from a building he was helping to erect. He sued the owner-contractor, Grobmyer Brothers Construction Company, which joined Barg Steel and Carl Nash, d/b/a Nash Masonry Company, as third-party defendants. Both Nash and Barg were subsequently dismissed from the case. Following a jury trial, a verdict in favor of Grobmyer was returned and Baxter appeals, contending that the trial court erroneously instructed the jury by giving AMI 612 on assumption of the risk and in refusing to give AMI 1204 on the standard of care required of a contractor. We believe the jury was correctly instructed.

On June 9, 1977, Baxter, as foreman, and other employees of Barg Steel were installing the structural support for the roof of a building being constructed by Grobmyer on its property in North Little Rock. The four walls, of concrete block construction, had been completed by Nash Masonry Company. Barg Steel employees were engaged in placing steel beams or “joists,” some 32 feet long, lengthwise on the top of the walls to support the decking of the roof. Baxter and another employee were standing opposite each other on the east and west walls receiving the steel joists as they were being lowered by a crane. One joist had been placed in position, parallel to the south wall and one foot away, its ends resting on the east and west walls. Baxter had walked to the center of the south wall to detach the crane’s cable from the joist and was returning to his original position to receive another joist; in so doing he lost his balance and fell, resulting in seriously disabling injuries.

The parties have sharply differing views of the cause of Baxter’s fall: Baxter contends that one or more of the concrete blocks on the top of the south wall were improperly cemented and shifted under his weight causing him to lose his balance; that in attempting to break his fall, or prevent it, he grabbed the bar joist as he fell. Grobmyer contends that there were no loose blocks and that Baxter fell because he was walking with one foot on the south wall and the other on the unsecured bar joist, which twisted or bowed under his weight, causing him to fall.

Baxter argues first that the court erred in instructing the jury on the defense of assumption of the risk. AMI 612 told the jury that to establish the defense of assumption of the risk Grobmyer must prove: (1) that a dangerous situation existed inconsistent with Baxter’s safety; (2) that Baxter knew the danger existed and realized the risk of injury, taking into consideration whether the danger was open and obvious; and (3) that Baxter voluntarily exposed himself to the danger.

Baxter argues, correctly, that the defense of assumption of the risk requires proof that he knew the danger existed and realized the risk he was assuming. He says, also correctly, that Grobmyer produced no proof that he was aware of the existence of any loose blocks, in fact, Grobmyer denied the existence of loose blocks as a cause of Baxter’s fall.

The fallacy of the argument is that it was not the risk of loose blocks which Grobmyer contends Baxter assumed, but rather, the risk of walking with one foot on the wall and one foot on an unsecured bar joist. Baxter does not deny there was evidence to support Grobmyer’s theory, in fact, his brief candidly concedes Grobmyer’s defense was based on statements filed with the Workers’ Compensation Commission to the effect that the fall occurred while Baxter was walking with one foot on the top of the wall and one foot on the j oist. We believe there was sufficient evidence presented to submit this issue to the jury.

An employee assumes the ordinary risks incident to his job, which are both open and obvious. Phillips v. Morton Frozen Foods, Inc., 313 F. Supp. 228 (E.D. Ark. 1970); Hudgens v. Maze, 246 Ark. 21, 437 S.W. 2d 467 (1969); Hall v. Patterson, 205 Ark. 10, 166 S.W. 2d 667 (1942). Furthermore, the application of the rule is particularly sound where, as here, the employee has discretion as to how or where the work is to be done. Phillips v. Morton Frozen Foods, Inc., supra.

Baxter argues that the defense is not appropriate unless the dangerous condition is the result of negligence or reckless conduct of the defendant; that under Arkansas case law assumption of the risk covers only the defendant’s conduct and not dangerous situations generally. He cites Price v. Daugherty, 253 Ark. 421, 486 S.W. 2d 528 (1972), but we do not find this proposition supported by either the holding or the dictum of Price, where we reversed the trial court for giving AMI 612. In Price, plaintiffs brought suit for the wrongful death of their son (a farm worker) against his employer and a welding shop owner who had produced a defective stump grinder. There was evidence that stump grinders are highly dangerous machines, but we held that such evidence had relevance to the normal operation of a non-defective machine, and not to one defectively built, as was true of the machine in that case. The danger there was latent and there was no proof the decedent had any awareness of the defect or realized the danger he was alleged to have assumed. We held that knowledge of the risk was essential, and in the absence of proof to that effect the instruction should not have been given.

It is true that in many cases it is the negligence of the defendant that creates the danger the plaintiff is said to have assumed, but not invariably so, and though appellant’s brief and our own research have not produced a case which answers the exact point appellant argues, the cases which touch on the issue uphold the defense of assumption of the risk in situations where the risk assumed was not caused by the defendant. See Hass v. Kessell, 245 Ark. 361, 432 S.W. 2d 842 (1968); Bugh v. Webb, 231 Ark. 27, 328 S.W. 2d 379 (1959); and Lee v. Pate, 198 Ark. 723, 131 S.W. 2d 8 (1939), where we held the defense applicable to an injury incurred when a worker slipped on a metal pipe, there being no evidence the defendant had created the risk assumed.

Corpus Juris Secundum, in its discussion of assumption of the risk under the title “Master and Servant,” describes the risks assumed:

The ordinary risks of an employment are those which are normally and necessarily incident thereto, without negligence on the part of the master. They are such as are to be expected from the particular character of the service in which the employee is engaged and as cannot be obviated or avoided by the exercise of due care on the part of the master, or in other words, they are the risks which remain after the master, or one rightly exercising the authority of the master, has exercised due care to prevent or avoid them. 56 C.J.S., Master and Servant § 371, p. 1172.

It suffices to say that if appellant’s argument is correct then AMI 612 is defective on its face, as it fails to tell the jury that it must also find the dangerous situation was caused by, or the result of, the negligence of the defendant. Yet AMI 612 was approved by an imposing panel of lawyers and j udges as a correct statement of the law and has stood the test of usage before the trial courts and on appeal for nearly 20 years.

Baxter points out that the jury may have been confused by the instruction — uncertain as to which risk was being assumed. But the instruction makes it abundantly clear that it applies only to known risks. If there was any uncertainty on that issue, presumably it was dealt with in closing argument, but regardless of that, Baxter could have called it to the court’s attention, or offered an instruction tailored to that circumstance. The failure to do so precludes the argument on appeal. Bussell v. Missouri Railroad Co., 257 Ark. 812, 376 S.W. 2d 545 (1964).

Second, Baxter argues the trial court erred in refusing to give his requested instruction AMI 1204, which would have told the jury in determining whether Grobmyer was negligent it could consider the degree of skill and care ordinarily possessed and used by other contractors doing work similar to that shown by the evidence. In lieu of 1204 the trial court gave 1104 over Grobmyer’s objection and at Baxter’s request. AMI 1104 deals with the standard of care imposed upon an occupier of land and told the jury Baxter was a business invitee and Grobmyer owed him a duty to use ordinary care to maintain the premises in a reasonably safe condition.

Baxter insists he was entitled to both instructions, as the jury could have found liability under either theory. He relies on DeVazier v. Whit Davis Lumber Company, 257 Ark. 371, 516 S.W. 2d 610 (1974), where we held, on the strength of Restatement of Torts, 2d, § 384, that a contractor who erects a structure or creates a condition on land is subject to the same liability, and enjoys the same freedom from liability as though he were the possessor of the land while the work is in his charge. But DeVazier v. Whit Davis Lumber Company, supra, does not hold that the claimant is entitled to instructions under a two-fold theory of negligence, it simply holds that a contractor temporarily in possession of the premises has the liability defined in AMI 1104. The record discloses very little concerning the denial of 1204, but evidently the trial court offered to give one instruction, but not both and appellant chose 1104 (p. 115), arguably the more favorable, as it imposes the higher standard of care due invitees. See W. Prosser, The Law of Torts, § 61 (4th ed. 1971). We cannot say that the evidence was such that the trial court was bound to give both instructions. In addition to 1104, the court gave AMI 301 and 303 which should accompany 1204 (See AMI Note to use, p. 158). AMI 301 defined negligence and 303 told the jury that the failure to exercise ordinary care was negligence, including the appropriate definition of the care required of a reasonably careful person. We believe that 301, 303 and 1104, read together, gave the jury a sufficient explanation of the law applicable to Baxter’s theory of the case. We have held the refusal to give an instruction that is substantially covered by another instruction is not prejudicial. Harris v. Ashdown Potato Curing Assn., 171 Ark. 399, 284 S.W. 755 (1926). See also Myers v. Ravenna Motors Inc., 468 P. 2d 1012 (C.A. Wash. 1970).

Furthermore, AMI 1204, unlike 1104, does not inform the jury of an essential principle of law, it tells them what evidence they may consider in determining whether Grobmyer was negligent. The courts take a skeptical view of such instructions and their use has been subject to disapproval, within our own opinions and elsewhere, as singling out certain evidence and emphasizing it in the minds of the jurors. In Rutland v. P.H. Ruebel & Company, 202 Ark. 987, 154 S.W. 2d 578 (1941), we said:

The other objection to the instruction is that it singles out this circumstance and unduly emphasizes it. The practice of framing separate instructions on distinct circumstances, and thus, as it is said, singling them out, is not commendable, and it has been held by this court in several decisions that it is not error to refuse such instructions. (Our italics.)

See Minnis v. Friend, 360 Illinois 328, 196 N.E. 191; Hogue v. State, 93 Ark. 316, 124 S.W. 783 (1910); Ince v. State, 77 Ark. 418, 88 S.W. 818 (1905); Carpenter v. State, 62 Ark. 286, 36 S.W. 900 (1896). We do not suggest it would have been error to give 1204, only that it was not error to refuse it, considering the instructions given and the fact the evidence of improper masonry construction was, at best, marginal.

Baxter cites Cain v. Songer, 176 Ark. 551, 3 S.W. 2d 315 (1928), and Life and Casualty Insurance Co. of Tenn. v. Gilkey, 255 Ark. 1060, 505 S.W. 2d 200 (1974). Both cases are distinguishable in that the instructions refused in those cases were not covered by other instructions and, hence, the jury was left wholly uninstructed as to the appellants' theory of the case. That did not occur here.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I must dissent because I feel that neither the trial court nor the majority in this opinion fully appreciated the difference in the two types of assumption of risk involved here. At least, they did not give due deference to appellant’s theory of the case. I would first point out that it has always been the position of the appellee that no loose blocks existed on the building under construction. On the other hand, appellant’s whole theory is is predicated upon a loose block or blocks being present on the top of the wall where appellant was working at the time of his injury. He claims his injuries and subsequent damages resulted from a loose block tilting thereby causing him to fall.

It was inconsistent with both appellant’s and appellees’ theories of the case for the court to give AMI 612. This instruction informed the jury that they must find that a dangerous situation existed; that appellant knew the dangerous situation existed and realized the risk he was taking. The instruction further told the jury that in determining whether appellant knew of the dangerous situation and realized the risk of injury they could take into consideration whether the danger was open and obvious. Finally, the instruction required them to find that Baxter voluntarily exposed himself to the dangerous situation which proximately caused his injury. Since the appellees maintained throughout the trial that there were no loose blocks on the wall, they had no right to request this instruction. The appellant was under no duty to offer an instruction to replace an erroneous one.

The risk alleged to have been assumed by the appellant was the risk of working on the top of a wall . This type of risk asumption applies to a situation where he would simply fall off the wall or some other similar accident. The obvious danger and assumption of risk involved in working on top of a wall is entirely different from the hidden danger and assumption of risk involved in working on top of a wall which contains loose blocks. It was impossible for appellant to assume the risk of working atop a loose block because he did not know the hidden danger existed and the appellee insists it never did exist. The fact of whether or not a loose block existed would, of course, be a matter for the jury to determine. In the case of Price v. Daugherty, 253 Ark. 421, 486 S.W. 2d 528 (1972), the defendant persuaded the court to give AMI 612. This case also involved assumption of risk. We reversed the trial court in Price because AMI 612 was given. The assumption of risk in Price involved the operation of a stump grinding machine which exploded in an attempt to operate it. It seems to me that a portion of the language used in Price is absolutely descriptive of the situation here:

There is no proof that Price was aware of the defects in the machine. Yet that is the precise hazard that he had to be aware of in order to assume its risk.

I think the trial court also erred in refusing to give AMI 1204 relating to a contractor’s duty, which states:

In determining whether_was negligent, you may consider the degree of skill and care ordinarily possessed and used by contractors doing work of a nature similar to that shown by the evidence in this case.

The note following this instruction indicates that it should follow AMI 301 and 303 which were both given in this case. The court decided to give AMI 1104 rather than 1204. AMI 1104 is the duty of an owner owed to an invitee, the duty being that of ordinary care to maintain the premises in a reasonably safe condition. This duty probably was owed to the appellant. However, it is designed more for the slip and fall type case which we frequently hear about. Certainly, there is no relationship between a slip and fall case and the one presently before us. If both instructions are proper, then both should be given because they are not repetitious. There is a very striking difference in the two instructions.

The situation here is very similar to that of a tort action involving an automobile accident wherein both AMI 901 and 903 are given. These last two instructions are certainly closer to being repetitive than are the two instructions in question here, yet both are frequently given in the same case. The appellant had the right to have the jury instructed on his theory of the case. Life and Casualty Insurance Co. of Tennessee v. Gilkey, 255 Ark. 1060, 505 S.W. 2d 200 (1974). The majority states that knowledge of the risk alleged to have been assumed is essential before it may be used as a defense. I submit that there is not one scintilla of evidence in the entire record which indicates that the appellant knew the blocks were loose until after his injury.

I also disagree with the majority’s statement that if appellant’s argument is correct then AMI 612 is defective on its face. Although I admit it could be defective on its face, the error of using it in the present situation is that it simply was an improper instruction in regard to the arguments presented by either side in this case. The appellant had no duty to change this instruction because he did not want it given in the first place and thought it was improper under the facts which had been presented to the jury.

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


author: Per Curiam.

text:
    Paul RUIZ & Earl DENTON v. STATE of Arkansas
    CR 80-147
    630 S.W. 2d 44
    Supreme Court of Arkansas
    Opinion delivered March 29, 1982

      Sandra Trawick Berry, for appellants.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., and Dennis R. Molock, Deputy Atty. Gen., for appellee.
   Per Curiam.

Petitioners Paul Ruiz and Earl Denton were convicted of capital murder in the Circuit Court of Logan County and sentenced to death. On appeal, we reversed the trial court’s denial of a change of venue. Ruiz & Denton v. State, 265 Ark. 875, 582 S.W. 2d 915 (1979). On remand, the case was transferred to the Circuit Court of Conway County where verdicts of guilt were again returned and sentences of death imposed. We affirmed. Ruiz ir Denton v. State, 273 Ark. 94, 617 S.W. 2d 6 (1981).

There is no need to recite the facts of this case since they are fully set out in the two previous decisions of this Court. Ruiz and Denton have now filed a petition for permission to proceed in circuit court for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37. The petition was amended on February 16, 1982.

Rule 37 affords a remedy when the sentence in a case was imposed in violation of the constitution of the United States or of this State or “is otherwise subject to collateral attack.” Rule 37.1; Swisher v. State, 257 Ark. 24, 514 S.W. 2d 218 (1974); Thacker v. Urban, 246 Ark. 956, 440 S.W. 2d 553 (1969); Clark v. State, 242 Ark. 584, 414 S.W. 2d 601 (1967). Rule 37 was not intended to provide a method for the review of mere error in the conduct of the trial or to serve as a substitute for appeal. Swindler v. State, 272 Ark. 340, 617 S.W. 2d 1 (1981); Clark v. State, 255 Ark. 13, 498 S.W. 2d 657 (1973). Even questions of constitutional dimension are not preserved beyond the direct appeal unless they present questions of such fundamental nature that the judgment is rendered void. Swindler, supra; Hulsey v. State, 268 Ark. 312, 595 S.W. 2d 934, reh. denied, 268 Ark. 315, 599 S.W. 2d 729 (1980). See also Collins v. State, 271 Ark. 825, 611 S.W. 2d 182 (1981) and Rogers v. State, 265 Ark. 945, 582 S.W. 2d 7 (1979). The grounds for relief presented by petitioners are alleged to raise issues so fundamental as to render the judgment void and open to collateral attack, but the issues were not raised in accordance with controlling rules of procedure and must be considered waived. See Moore v. Illinois, 408 U.S. 786 (1972); Stembridge v. Georgia, 343 U.S. 541 (1952); Hulsey, supra; Williams v. Edmondson, 257 Ark. 837, 250 S.W. 2d 260 (1975); Orman v. Bishop, 245 Ark. 887, 435 S.W. 2d 440 (1968).

Even though we find no ground for relief sufficient to render the judgment void, we will discuss the issues raised by petitioners since their first argument has never been raised before this Court. Petitioners allege that the Arkansas death penalty statute is “facially unconstitutional since it discourages assertion of the Fifth Amendment right not to plead guilty and penalizes exericse of the Sixth Amendment right to trial by jury.” Petitioners argue that under Ark. Stat. Ann. § 41-1302 (1) (Repl. 1977) only the jury may impose the death penalty, thus creating a situation whereby a defendant can be assured of escaping execution only by waiving his right to a jury trial. As authority for their assertion that the statute places a chilling effect on a defendant’s constitutional right to trial by jury, petitioners cite United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209 (1968). Jackson, however, is not controlling.

The statute under attack in Johnson was the Federal Kidnapping Act which provided that interstate kidnappers “shall be punished (1) by death if the kidnapped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the dath penalty is not imposed.” The District Court held the death penalty clause of the act unconstitutional because it made the death penalty applicable only to those defendants who asserted their right to a trial by jury. The United States Supreme Court upheld the District Court but the holding in Jackson has been eroded in recent decisions. Furthermore, we find that Ark. Stat. Ann. §§ 41-1301 — 1304 (Repl. 1977), which sets forth the procedures governing jury trials for persons charged with capital murder, does not place an impermissible burden on the exercise of the constitutional right to trial by jury. § 41-1302 provides that the jury shall impose a sentence of death if it returns certain written findings, but, unlike the court in Jackson, the trial judge is not required to impose the death penalty in every case in which the jury verdict prescribes it. Collins v. State, 261 Ark. 195, 548 S.W. 2d 106 (1977).

Arkansas Criminal Procedure Rule 31.4, Ark. Stat. Ann. Vol. 4A (Repl. 1977), provides:

No defendant charged with a capital felony may waive either trial by jury on the issue of guilt or the right to have sentence determined by a jury unless:
(a) the court in which the cause is to be tried determines that the waiver is voluntarily and freely proffered without compulsion or coercion; and
(b) the prosecuting attorney, with the permission of the court, has waived the death penalty; and
(c) the prosecuting attorney has assented to the waiver of trial by jury, and such waiver has been approved by the court.

Petitioners assert that this statutory scheme causes a defendant to abandon his right to a jury trial in return for the assurance that he will not receive the death penalty. Petitioners ignore, however, the fact that the prosecutor must waive the death penalty with the permission of the court before the defendant may waive either trial by jury on the issue of guilt or his right to have sentence determined by a jury. There is no right to plead guilty or right to trial to the court, and petitioners are in error when they suggest that anything which may encourage a defendant to plead guilty is automatically suspect. Although petitioners do not mention plea bargaining, plea bargaining clearly encourages a defendant to waive a jury trial, but it is well settled that a plea bargain is not invalid per se merely because it is induced by fear of receiving the death penalty or because in agreeing to the plea bargain the defendant averts the possibility of receiving the death penalty. Brady v. United States, 397 U.S. 742,90 S. Ct. 1463,25 L. Ed. 2d 747 (1970). The United States Supreme Court stated in Corbitt v. New Jersey, 439 U.S. 212, 99 S. Ct. 492, 58 L. Ed. 2d 466 (1978) (Stevens, Brennan and Marshall, JJ., dissenting):

The cases in this court since Jackson have clearly established that not every burden on the exericse of a constitutional right and not every pressure or encouragement to waive such a right, is invalid. Specifically, there is no per se rule against encouraging guilty pleas. We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea. Corbitt, at 218.

The fact that a defendant agrees to waive trial by jury on the issue of guilt or the right to have guilt determined by a jury because the court and state will waive the death penalty does not chill an accused’s right to a jury trial. Rule 31.4 offers a protection for the accused who wishes to avoid a jury trial. It is difficult to see how petitioners were prejudiced by the procedural guidelines of which they complain. They do not claim that they wished to waive a jury trial but did not seek to do so because of the provisions which give the state the discretion to waive the death penalty with approval of the court. Indeed, such an argument would suggest that the petitioners wished to have the right to be sentenced to death without a jury. The death penalty under Arkansas statutes has been consistently held constitutional, Hulsey v. State, 261 Ark. 449, 549 S.W. 2d 73 (1977); Neal v. State, 261 Ark. 336, 548 S.W. 2d 135 (1977); Collins v. State, 261 Ark. 195, 548 S.W. 2d 106, cert. den., 434 U.S. 977 (1977), and petitioners have not presented a valid attack to its constitutionality in their petition.

Petitioners’ second allegation is ineffective assistance of counsel stemming from their joint representation by the same counsel during the penalty phase of trial. The record indicates that the petitioners were specifically questioned as to whether counsel had discussed a possible conflict of interest in joint representation. They each answered that they were so informed and had no objection to joint representation. Petitioners have offered no facts to support their allegation that their acquiescence was not intelligently and voluntarily given.

Petitioners argue that they were prejudiced by being co-defendants during the penalty phase because the jury was unable to discern the distinctions made between the two men and thus found no mitigating circumstances. No specific evidence of prejudice is provided. The jury was given separate verdict forms and instructed to decide separately as to each defendant. Petitioners have not demonstrated that the jury did not follow that instruction.

Petitioners cite the standard of review of the Eighth Circuit Court of Appeals on the issue of ineffective assistance of counsel. This Court, however, has adopted a somewhat different standard. We hold that there is a presumption of effective assistance of counsel and that a petitioner must overcome that presumption and show he was prej udiced by the conduct of counsel. A petitioner must also show by clear and convincing evidence that the prejudice which resulted from the representation of trial counsel was such that he did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W. 2d 184 (1981). Petitioners have not demonstrated that they were denied a fair trial.

Petition denied.


text:
    Gardner SMITH, Jr. v. STATE of Arkansas
    630 S.W. 2d 22
    Supreme Court of Arkansas
    Opinion delivered March 29, 1982

      Charles Allen, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

Gardner Smith, Jr., by his attorney, has filed a motion for a rule on the clerk.

The motion admits that the record was not timely filed and states the reason for the delay is:

That subsequent to the filing of the Notice of Appeal the Circuit Court on a Petition filed by the Defendant entered an order extending the time for filing and docketing the Appeal to and including March 12,1982.
That the Defendant has been advised by the Supreme Court Clerk that the time in which to file the Transcript expired during the later part of February, 1982 and refuses to file the Transcript with the Court.
That the Defendant states that the error committed herein is a harmless error and based entirely on miscalculation on the final date. That, in addition, the Defendant would rely on the Order Extending Time for filing and docketing the appeal to March 12, 1982 signed by the Honorable John L. Anderson, Circuit Judge.

An extension of time to file a record cannot extend the time for filing the transcript by more than seven months from the date judgment was entered. Rule 5 (b), Rules of Appellate Procedure, Ark. Stat. Ann. Vol. 3A (Repl. 1979). It is the duty of the attorney to see that the record is timely filed. No good reason is shown for the delay and we will deny the motion as it is filed.

If the affidavit attached to the motion had stated that the attorney made an error or had been careless in the computation of time, or gave any good cause, the motion could be granted. In a per curiam opinion regarding belated appeals rendered February 5, 1979, 265 Ark. 964, we discussed the problem of an untimely tender of a record caused by the attorney. We decided that we have no alternative but to grant the motion for relief in such a case. However, we pointed out that a copy of the opinion would be forwarded to the Committee on Professional Conduct as is our practice.

This denial of a belated appeal is without prejudice. If good cause is shown later, we can grant the motion.


text:
    IDEAL MUTUAL INSURANCE CO. v. David McMILLIAN and Dana McMILLIAN, His Wife
    82-5
    631 S.W. 2d 274
    Supreme Court of Arkansas
    Opinion delivered April 5, 1982
    [Rehearing denied May 10, 1982.]

      Hubbard, Patton, Peek,Haltom & Roberts, by: William G. Bullock, for appellant.

      House, Holmes ir Jewell, P.A., by: Robert L. Robinson, Jr. and Terry C. Paulsen, for appellees.
   Richard B. Adkisson, Chief Justice.

An airplane, insured by appellant, Ideal Mutual Insurance Company, crashed near Dierks, Arkansas, in 1978. The pilot was killed, and the appellee, McMillian, was injured. After the pilot’s estate was closed, appellee filed a negligence suit against the estate pursuant to Ark. Stat. Ann. § 62-2601 (f) (Repl. 1971). Sheriff David Goodwin was appointed special administrator to receive service of process.

The sheriff, as special administrator, attempted to give notice of the suit to appellant by mailing a letter to the attorney for the owner of the plane and to appellant’s local issuing agent. The attorney received the letter addressed to him. However, the letter to appellant’s issuing agent was incorrectly addressed to the post office box of appellant’s adjustment bureau and its receipt was denied by both the issuing agent and the adjustment bureau.

The trial court found the notice given by the sheriff was sufficient and because the complaint was never answered, entered a default judgment against the estate of the pilot. After appellant learned of the default judgment, it filed a motion to intervene under Rule 24 (a), A. R. Civ. P., Vol. 3a (Repl. 1979) which was denied. This rule provides:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute of this state confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

Appellant then filed a motion to set aside the default judgment alleging insufficient notice of the proceedings. The trial court also denied this motion.

Ark. Stat. Ann. § 62-2601 (f) (Repl. 1971), upon which appellee’s suit was based, provides:

f. Certain Tort Claims Not Affected. Notwithstanding the foregoing provisions relating to the time of filing claims against an estate, or any other provisions of this Probate Code, a tort claim or tort action against the estate of a deceased tortfeasor, to the extent of any recovery which will be satisfied from liability insurance or from Uninsured Motorist insurance coverage and which will not use, consume or deplete any assets of the decedent’s estate, may be brought within the limitation period otherwise provided for such tort action. No recovery against the tortfeasor’s estate shall use, consume, diminish, or deplete the assets of the decedent’s estate, and any such recovery shall not affect the distribution of the assets of the estate to the heirs, next of kin, legatees, or devisees of the decreased tortfeasor unless a claim is filed in the manner and within the time provided by the Probate Code for filing claims against the estate.

Under the provisions of this statute the insurance company is the only party financially interested in the outcome of the case. Although the estate is the named defendant, it is not financially liable under the statute. Therefore, because of the peculiar nature of the statute, it in effect confers an unconditional right to intervene on the insurance carrier under Rule 24 (a).

Again, due to the unique provisions of this statute, the insurance carrier, appellant, is entitled to notice of the proceedings. Due process requires that the method of giving this notice shall be reasonably calculated, under all the circumstances, to apprise the insurance company of the pendency of the action. Mullane v. Central Hanover Bank & Trust Co., 359 U.S. 306 (1950). Here, attempted notice by a letter mailed to the wrong address is not calculated to appropriately notify appellant of the suit.

Since sufficient notice of the suit was not given to the appellant, the motion to set aside the default judgment must be granted, and appellant must be allowed to intervene.

Reversed and remanded.


author: George Rose Smith, Justice.

text:
    Ernest Eugene SPICKES and Frances SPICKES v. MEDTRONIC, INC. et al
    82-10
    631 S.W. 2d 5
    Supreme Court of Arkansas
    Opinion delivered April 5, 1982

      John Wesley Hall, Jr., for appellants.

      Wright, Lindsey & Jennings, for appellees.
   George Rose Smith, Justice.

This products liability case is within our jurisdiction under Rule 29 (1) (m). In 1975 a cardiac pacemaker, manufactured by the appellee Medtronic, was inserted in the body of the principal plaintiff, Ernest Eugene Spickes. In 1977 the device proved to be defective, causing Spickes’s heartbeat to acelérate. On October 5, 1977, the device was surgically removed and a substitute pacemaker, also made by Medtronic, was inserted in its place. There is no complaint about the performance of the replacement.

On October 28, 1980, more than three years after the surgery, Spickes and his wife brought this action for personal inj uries, loss of consortium, and punitive damages resulting from the defective pacemaker. The defendants, Medtronic and the hospital through which the device was sold, pleaded the three-year statute of limitations, Ark. Stat. Ann. § 34-2803 (Supp. 1981), and moved for summary judgment, with supporting affidavits. The trial judge granted the motion. The appellants’ principal assignment of error is that there is a genuine issue of fact as to whether Medtronic is estopped to plead limitations.

The plea of estoppel is based on correspondence and telephone conversations between Spickes’s original attorney, David H. Williams, and Medtronic’s attorney, Reed A. Duthler, who practiced in Minnesota. The motion for summary judgment was supported by Duthler’s affidavit, to which were attached copies of all the correspondence. The statute of limitations was never mentioned in the letters. Duthler stated in his affidavit that the statute was not referred to in the telephone conversations until after the time had run. He said he first mentioned the three-year statute in a conversation on October 24, but Williams insisted that the period was five years. In a few minutes Williams called back and admitted that the three-year period was correct, but said he did not think the plea would be successful. This suit was filed four days later.

In response to the plea of limitations the plaintiffs filed an amended complaint asserting that Duthler had stated that there was no question about liability, that the only issue was the amount of money that would adequately compensate Spickes for his damages, and that there was no necessity for Spickes to bring a lawsuit. Duthler’s affidavit also denied those assertions. He stated that the possibility of a settlement was discussed, but he did not admit or deny liability, did not promise a settlement, and did not request that a lawsuit be delayed or forgone. On the issue of estoppel no affidavits were filed on behalf of the plaintiffs in response to the motion for summary judgment.

On the basis of Duthler’s undisputed statements under oath, the trial court was right in entering the summary judgment. It is now argued that Duthler’s assertions were denied in the pleadings and were to some extent questioned by counsel at the hearing on the motion for summary judgment. We have repeatedly held, however, that when a party makes a prima facie showing in support of a motion for summary j udgmen t, the opposing party mus t discard the shield of formal allegations and meet proof with proof to show a genuine issue of fact. Hughes Western World v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W. 2d 826 (1980), citing earlier cases. Here the movants’ proof is uncontradicted by affidavit.

A second point for reversal is that the trial court should have held that Spickes’s cause of action really arose on March 20, 1980, when he learned that back in 1977 Medtronic had sent a letter to physicians cautioning them about a different defect in the pacemaker, one that would cause the device to stop functioning (which did not happen in this instance). In response to the motion for summary judgment Spickes alleged, with a supporting affidavit, that he had suffered mental anguish in March 1980 upon discovering that he had not been notified about the earlier defect, causing him to fear that he might also not be notified if the replacement should prove defective.

This contention is meritless. Medtronic committed no tortious act in 1980; Spickes simply found out more about what had been done three years earlier. The statute of limitations begins to run when the negligent damage occurs, not from the time the full extent of the injury is ascertained. Field v. Gazette Publishing Co., 187 Ark. 253, 59 S.W. 2d 19(1933). Moreover, for the reasons given in Lisenby v. Farm Bureau Mut. Ins. Co., 245 Ark. 144, 431 S.W. 2d 484 (1968), a single cause of action cannot be split. Spickes knew in 1977 that the first pacemaker was faulty; he cannot manufacture a second cause of action on the basis of additional information he learned three years later.

Third, it is argued that the trial court was wrong in refusing to permit Spickes to testify, at the summary j udgment hearing, about the exact date on which he suffered mental anguish upon learning in 1980 that Medtronic had sent out the cautionary letter to physicians in 1977. It is argued that our holding in Sikes v. Segers, 263 Ark. 164, 563 S.W. 2d 441 (1978), to the effect that oral testimony is not permitted with respect to a motion for summary judgment, has been changed by ARCP, Rule 43 (c), which allows a court to hear oral testimony with respect to motions. Our ruling on the second point for reversal makes this question academic, for the exact date on which Spickes learned the full extent of his injury from the original wrong is immaterial.

Affirmed.


text:
    Marguerite TURNER v. BAPTIST MEDICAL CENTER et al
    82-19
    631 S.W. 2d 275
    Supreme Court of Arkansas
    Opinion delivered April 5, 1982
    [Rehearing denied May 10, 1982.]

      Ernie Witt, of Witt ir Donovan, for appellant.

      Friday, Eldredge & Clark, by: Phillip Malcom and Laura A. Hensley, and Barber, McCaskill, Amsler, Jones & Hale, for appellees.
   George Rose Smith, Justice.

Marguerite Turner brought this tort action against Baptist Medical Center, a non-profit institution, alleging false imprisonment and assault and battery in that the defendant had illegally confined Mrs. Turner to its hospital from May 15 to May 31, 1978, and had mistreated her. Later on Mrs. Turner joined as defendants the Medical Center’s liability insurer and Dr. Charles S. Betts, the psychiatrist who had requested that Mrs. Turner be admitted to the Medical Center for observation and treatment. On motion for summary judgment the trial court found no genuine issue of fact to exist and entered summary judgment in favor of the Medical Center and its insurer. The court also sustained Dr. Betts’ motion to dismiss the complaint as being barred by the statute of limitations. The appeal comes to us under Rule 29 (1) (o).

We consider first the judgment in favor of Dr. Betts, on the basis of limitations. Dr. Betts was first brought into the case on May 12, 1980, by an amended complaint asserting false imprisonment, assault and battery, and “intentional infliction of mental and emotional distress.” That pleading was filed almost two years after Mrs. Turner’s asserted confinement and physical mistreatment; so it was barred by the one-year statute of limitations applicable to actions for false imprisonment and for assault and battery. Ark. Stat. Ann. § 37-201 (Repl. 1962). No facts were alleged that would make the assertion of mental and emotional distress anything more than an element of damage flowing from the imprisonment and mistreatment; so the same one-year statute would apply. More than three years after Mrs. Turner’s release from the Medical Center she filed a second amended complaint alleging for the first time negligence on Dr. Betts’ part, but by then any cause of action for negligence was barred either by the two-year statute applicable to medical malpractice, § 37-205, or by the three-year statute applicable to actions for personal injuries. § 37-206. It is also argued that Dr. Betts is estopped to plead limitations, but that argument is based on facts assertedly in the record but not abstracted by the appellant. Dr. Betts has elected not to supplement the appellant’s deficient abstract; so Rule 9 precludes us from considering this estoppel argument on its merits.

With respect to the Medical Center and its insurer, they have chosen to abstract all the affidavits supporting their motion for summary judgment. We need not detail this proof. It sets forth specific facts to show that Mrs. Turner, then age 58, was properly admitted to the Medical Center pursuant to Ark. Stat. Ann. § 59-408 (B)and (C) (Repl. 1971), on the certification of Dr. Betts; that Dr. Betts is a qualified psychiatrist who diagnosed Mrs. Turner as being psychotic, under delusions, a threat to herself and others, and in need of observation and treatment at the Medical Center; that Dr. Betts’ diagnosis is confirmed by Dr. Kolb, a disinterested expert witness; that Mrs. Turner’s nephew took the initiative in putting her in the hospital; and that the Medical Center did not subject Mrs. Turner to false imprisonment or assault and battery. Various supporting hospital records were also attached to the motion.

The proof in support of the summary j udgment made a prima facie showing that no genuine issue of fact exists. In response, Mrs. Turner filed only her own affidavit, stating in conclusory language that the defendants’ affidavits were not true, that she had not been a danger to herself, and that the hospital records were not correct. Her affidavit does not indicate that she is qualified as an expert to testify about her mental condition.

Our summary judgment procedure, ARCP Rule 56 (e), which follows the parallel federal rule, requires that proof offered to meet a properly supported motion for summary judgment “must set forth specific facts [our italics] showing that there is a genuine issue for trial.” The affidavits must set forth facts that would be admissible in evidence. Rule 56 (e). Affidavits that consist merely of general denials, without any statement of specific facts, are insufficient. Stevens v. Barnard, 512 F. 2d 876 (10th Cir., 1975); Liberty Leasing Co. v. Hillsum Sales Corp., 380 F. 2d 1013 (5th Cir., 1967); Robin Construction Co. v. United States, 345 F. 2d 610 (3rd Cir., 1965). Indeed, that must be the rule, else every motion for summary judgment, however strongly supported by the proof, could be defeated by an affidavit merely stating: “The statements in the movant’s affidavits are not true.” In substance, that is all this appellant’s responsive affidavit amounts to. The trial judge correctly granted the motion for summary judgment.

Affirmed.