author: Robert H. Dudley, Justice. John I. Purtle, Justice, Darrell Hickman, Justice, Steele Hays, Justice,

text:
    Avery CLAYBORN v. STATE of Arkansas
    CR 82-123
    647 S.W.2d 433
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983
    [Rehearing denied April 11, 1983.]

      Jeff Rosenzweig, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.

      Hickman and Hays, JJ., would grant rehearing.

   Robert H. Dudley, Justice.

Appellant was charged by information with burglary and rape by deviate sexual activity. He was found guilty of both crimes but appeals only from the conviction of rape by deviate sexual activity. He was sentenced to imprisonment for life and jurisdiction is in this Court pursuant to Rule 29 (1) (b). The appeal is meritorious.

Ark. Stat. Ann. § 41-1803 (Repl. 1977), in pertinent part, provides that either of two different types of conduct can constitute the crime of rape:

Rape — (1) A person commits rape if he engages in sexual intercourse or deviate sexual activity with another person:
(a) by forcible compulsion . . .
(Emphasis added.)

Here, the information charged appellant with rape by forcibly engaging in deviate sexual activity. Deviate sexual activity is defined by statute as “any act of sexual gratification involving: (b) the penetration, however slight, of the vagina or anus of one [1] person by any body member or foreign instrument manipulated by another person.” Ark. Stat. Ann. § 41-1801 (1) (b). The proof at trial was insufficient to sustain the charge or rape by deviate sexual activity as the crime is defined. The only evidence relating to such a form of rape was the prosecutrix’s testimony that “he jerked my panties off and began to lick my bottom.” There was no evidence that appellant’s tongue penetrated the prosecutrix’s vagina or anus. Yet, the testimony of the prosecutrix, a retired nurse, aptly demonstrated her thorough knowledge of human anatomy. Manifestly, the State failed to prove the crime charged, rape by deviate sexual activity.

The information did not charge appellant with the crime of rape by forcible sexual intercourse. That type of rape is statutorily defined as the “penetration, however slight, of a vagina by a penis.” Ark. Stat. Ann. § 41-1801 (9). The detailed and specific testimony by the prosecutrix leaves no doubt that appellant was guilty of rape in this nature. She testified “he made me hold the labia, get hold of it and hold it open for me to get his penis inside of me.” Nonetheless, the State at no time sought to amend the information to correctly describe the nature of the rape which was committed. See Jones v. State, 275 Ark. 12, 627 S.W.2d 6 (1982). Subsequently, the appellant made a timely objection to the variance between the information and the proof and, in addition, moved for a directed verdict on the charge of rape by forcible deviate sexual activity, the trial court not only denied both motions but, over appellant’s additional objection, instructed the jury on rape by forcible sexual intercourse, which had never been charged, and instructed the jury on rape by forcible deviate sexual activity, which was not proven. Since there was no proof of rape by deviate sexual activity the jury must have found the appellant guilty of rape by sexual intercourse, a crime with which appellant was never charged. The appellant correctly contends that he cannot be found guilty of a crime with which he was never charged.

The State makes two counter arguments. The first is that appellant was charged with forcible rape, proven guilty of forcible rape, convicted of forcible rape and therefore no fatal variance existed. That argument assumes a fallacious base because appellant was not solely charged with rape. If he had been charged only in general terms, then it might have been sufficient under our liberal rules of procedure, especially in the absence of a motion for a bill of particulars, But here appellant was charged with rape by forcibly engaging in deviate sexual activity. Such a charge includes the crimes formerly labelled by statute as sodomy and buggery, except for the bestiality aspect, and the penetration may be by finger, tongue or dildo.

The statute defining this crime, as distinguished from rape by sexual intercourse, contains no reference to the sex of either the offender or the victim. A neuter gender definition is essential since either a male or a female could be the victim or the perpetrator of this nature of rape. It includes homosexual conduct as well as most types of unnatural hetersexual conduct. See Commentary to Ark. Stat. Ann. §§ 41-1801 and -1803. Acts of deviate sexual activity have been judicially described as unnatural acts. Strum v. State, 168 Ark. 1012, 272 S.W.2d 359 (1925).

On the other hand, the crime of forcibly engaging in sexual intercourse has been separately defined and is limited to penetration of a vagina by a penis. Ark. Stat. Ann. § 41-1801 (9). Obviously it is restricted to heterosexual conduct and, except for the forcible compulsion, is a natural sex act. The essential elements of the crimes differ.

The test for determining whether an information for one offense includes another is whether the offenses are of the same general character and whether the information for one offense contains all of the essential elements of theother. For example, in Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971), the defendant was charged with assault with a deadly weapon, a knife, with intent to kill. The proof developed that the assault was with a pistol. We held no variance occurred because only one crime was involved, assault with intent to kill. The distinguishing fact in this case and the case at bar is that essentially two different crimes are involved here. Where two different crimes are involved the defendant may not be, as here, charged with a crime and convicted of another. To sustain a conviction on the ground that the evidence supports a charge not made would be a sheer denial of due process. Thornhill v. Alabama, 310 U.S. 88 (1940).

The State’s second argument is that the sexual intercourse proven in this case comes within the statutory definition of deviate sexual activity. The argument is without merit. Criminal statutes must be strictly construed. Breakfield v. State, 263 Ark. 398, 566 S.W.2d 729 (1978). Under our prior law these criminal acts had separate names; rape by sexual intercourse was termed rape and rape by deviate sexual activity was termed sodomy or buggery. Under the Criminal Code of 1976 the separate criminal acts continue to be defined separately and they must be so construed.

The current statutory definitions of these crimes are derived from New York Penal Law § 130.00. See Commentary to Ark. Stat. Ann. § 41-1801 (Repl. 1977). We note that the Appellate Division of the Supreme Court of New York stated: “The definition of deviate sexual activity does not refer to sexual intercourse in its ordinary meaning but refers to specific sexual conduct — contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.” People v. Griffith, 80 A.D.2d 590, 435 NYS2d 767 (1981). The two crimes are not the same. Forced sexual intercourse does not come within the crime of forced deviate sexual activity.

Reversed and remanded for a new trial.

Purtle, J., concurs.

Hickman and Hays, JJ., dissent.

John I. Purtle, Justice,

concurring. To follow the reasoning of the two dissents in this case would soon lead to the abandonment of our laws and our Constitution. We are still a nation of laws but if we ever adopt the dissenting viewpoints we will no longer be. For almost two hundred years the Constitution of the United States has endured just such attacks as presented in the dissenting opinions. The Constitution of Arkansas has endured well over a hundred years of unsound and unwise attacks. I shall endeavor to defend our laws and constitutions so long as I occupy the bench on the Arkansas Supreme Court and shall continue thereafter as a private citizen.

Darrell Hickman, Justice,

dissenting. This case is an outrage, not so much because a defendant guilty of rape is freed, but because all the actors in this matter, including ourselves, have miserably failed in our duty: To provide a system that fairly decides who has violated the rights of others and holds accountable the guilty as well as frees the innocent. The defendant in this case will probably be the most surprised of all. A system so inept as ours in this case will hardly deter him from further malfeasance. His argument is not that he is innocent of rape, because the State certainly proved that he forcibly had sexual intercourse with the victim; his argument is that he did not do it exactly how he was charged. Justice Hays has addressed the case from an evidentiary standpoint and I will not add to his statement except to observe that the Commentary to Ark. Stat. Ann. § 41-1801 (1) (b) says “deviate sexual activity is broad enough to embrace — common forms of deviate sexual behvior, fellatio, cunnilingus, and anal intercourse.” The victim, a seventy-eight year old woman, no doubt described in her own modest words the act of cunnilingus.

This statute was drafted to define all kinds of forcible rape, by whatever mode or method of sexual abuse; it was intended to define a physical violation of another’s body, one more than a mere touching. It was drafted to leave no loopholes: Whether the violation is committed by a tongue, finger, or even an inanimate object, it is rape in the most serious degree if force is used. It actually makes no difference to the law, the victim, nor even the defendant, how he committed the act, it is the violation that is defined and prohibited. The majority’s decision is not giving effect to the legislative intent: it is creating a loophole where the General Assembly obviously strained to prevent such a result. There is no requirement that the State has to elect to charge a defendant with either rape by sexual intercourse or by deviate sexual activity.1 Either under force is rape. Ark. Stat. Ann. § 41-1803. The trial court instructed the jury that it could find the defendant guilty if he committed rape by either sexual intercourse or deviate sexual activity.

The majority’s reasoning is akin to arguing that it makes a difference whether one is killed with a bullet or a knife; a copper jacketed shell, or a dum dum bullet; a killing is a killing and the exact method used is invariably irrelevant unless a defendant can show some kind of prejudice.

How does the defendant say he was prejudiced? It is conceded the State proved he raped this woman, at a certain time and place, by sexual intercourse as well as performed a deviate act by “licking her bottom,” adding to the humiliation of rape by sexual intercourse. But he argues he could not have “raped” her because the exact method of rape was not spelled out. Is there any argument there was no force? No. Is there any argument he did not also rape her by sexual intercourse? No. His identity is not questioned. It is simply an argument that the I was not dotted nor the T crossed, and the law demands his release even though he is admittedly guilty of the crime charged.

Certainly a defendant is entitled to know of the crime charged. The constitution requires it. U.S. CONST, amend. VI. And a defendant is entitled to a bill of particulars if he needs it in order to defend himself. Ark. Stat. Ann. § 13-804, 43-1006. See Boyette v. State, 265 Ark. 707, 580 S.W.2d 473 (1979). It was not the purpose of the defendant to seek more definite information about the charge; it was purely and simply a legal trick by the defense — and it worked.

There can be no kudos for the attorney for the State or the trial judge. The poor presentation of the case by the State was inexcusable and the trial court should have been more alert. It is a reality that the field of criminal law has become a playground for legal technocrats, not a place for lawyers, and those dealing with it must recognize this.

But we cannot be swayed from our purpose by imperfect trials and hindsight as to what should have been done. Our goal, as an appellate court, is to see that a system exists for fair trial, not a perfect one, but one free of prejudice. Errors that do not deny such a trial are not reversible errors. Especially in cases where the evidence of guilt is overwhelming. Simpson v. State, 278 Ark. 334, 645 S.W.2d 688 (1983). Such a system must not only protect the innocent but it must just as surely punish the guilty. Anything less, in either regard, is a failure. And ours is a failure in this case — without any excuse, legal or otherwise.

Steele Hays, Justice,

dissenting. I wholly disagree that deviate sexual activity by the appellant was not sufficiently proved because the victim did not state specifically that her vagina was penetrated by her assailant’s tongue. That seems needlessly explicit. Her testimony that she was forced to submit to the appellant’s having torn off her panties, “licked my bottom”, “messed around awhile”, and then raped her, ought to satisfy even the most meticulous appellate review. I can see nothing to be gained by requiring this seventy-eight year old victim to undergo another public description in fine detail of a revolting and horrifying experience.

We frequently accept the obvious import of the victim’s testimony in these cases, even where literal words of penetration are lacking. Why should this one be treated differently? We have said that penetration may be inferred from circumstances, even when the victim is unable to say it occurred. In Whitmore v. State, 263 Ark. 419, 565 S.W.2d 133 (1978) we upheld a conviction involving deviate sexual activity. The facts given us in the opinion are that the victim, an eleven-year-old boy, spent the night with the accused, who gave him Sleep-Eze pills at bedtime. During the night the victim had to go to the bathroom because he felt something like grease coming out of his rear end. He described the substance as white and transparent, like Vaseline. We said these circumstances gave rise to more than mere suspicion, that the reasonable inference to be drawn left little room for doubt.

In Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980) we applied a common sense interpretation of our statutory requirement that the vagina be penetrated which, I believe, should guide us in this case. In that case, involving the rape of a nine-year-old girl, there was no evidence of penetration of the vagina, though there were signs of irritation, reddening and tenderness of the labia leding to the hymen, which is at the entrance of the vagina. We acknowledged that while the vagina may not have been penetrated, we concluded the legislature did not intend a literal interpretation of vaginal penetration, as evidenced by use of the words “however slight.” We said it was essentially immaterial whether the vagina was penetrated, that it would border on the ridiculous to construe the statute as requiring evidence of actual penetration of the vagina when in many instances the victim would not even know whether the required depth of penetration had occurred. That reasoning applied with equal force here.

A lengthy list of cases could be compiled where evidence of penetration was marginal at best, and in some instances non-existent, yet we inferred it even where the victim could not, or did not, supply it. Scantling v. State, 271 Ark. 678, 609 S.W.2d 925 (1981), Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980), Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), Leasure v. State, 251 Ark. 887, 475 S.W.2d 535 (1972), Havensv. State, 217 Ark. 153, 228 S.W.2d 1003 (1950), Needham v. State, 215 Ark. 935, 224 S.W.2d 785 (1949), Hudspethv. State, 194 Ark. 576, 108 S.W.2d 1085 (1937), Poe v. State, 95 Ark. 172, 129 S.W. 292 (1910).

The Commentary to Ark. Stat. Ann. § 41-1801 makes it clear that our statutes intend the term deviate sexual activity to include oral sex, when accomplished by compulsion, irrespective of whether the victim is forced to submit to it, or forced to perform it. Our statutes also provide that penetration need occur only in the slightest degree, even in literal rape, where there is far greater necessity for a clear line of demarcation between actual rape and attempted rape. But where the offense is deviate sexual activity of the sort presented by this case, what good purpose is served by requiring an explicit description of the act when the inference is clear? Isn’t the sexual privacy and integrity of one person sufficiently violated for purposes of criminal prosecution when she is forced to submit to having her sexual organs violated by the mouth and tongue of an assailant on threat of death? The very act which this victim described as having been performed upon her ought to fully satisfy the statutory definition of deviate sexual activity. I would affirm the judgment of the trial court.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Donald James CARRIER v. STATE of Arkansas
    CR 82-128
    647 S.W.2d 449
    Supreme Court of Arkansas
    Opinion delivered March 7, 1983

      Ronald L. Griggs, tor appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant Donald James Carrier was convicted by the trial court sitting without a jury of first degree murder and sentenced to life imprisonment in the Arkansas Department of Correction. It is from that conviction that appellant brings this appeal.

Pursuant to Anders v. California, 386 U.S. 738 (1967), appellant’s counsel has filed a motion to be relieved as counsel and a brief stating there is no merit to the appeal. The State concurs that the appeal has no merit. Appellant has filed a pro se brief in which he raises ineffective assistance of counsel as a point for reversal. The allegation cannot be considered, however, because allegations of ineffective assistance of counsel may not be raised for the first time on appeal. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981). The proper remedy to challenge the adequacy of an attorney’s representation is a petition for postconviction relief under A.R.Cr.P. Rule 37.

Appellant was charged with the strangulation death of. an El Dorado woman. He waived trial by jury and stipulated that the facts supporting the charge, including his handwritten statement about the crime, psychologist’s and psychiatrist’s reports, the police report, medical examiner’s report and crime lab report, would be submitted to the trial court for its determination of whether he was mentally incompetent when the crime was committed.

If the accused wishes to submit the question of his legal responsibility for a crime to the trial court on documentary evidence by stipulation without the appearance óf witnesses, he may do so. See United States v. Wray, 608 F.2d 722 (8th Cir. 1979), cert. denied 444 U.S. 1048 (1979). The trial court then has the duty as trier of fact to determine from the evidence before it whether the accused was legally sane or insane. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). The appellate court does not attempt to weigh the evidence or pass on the credibility of the medical reports where the opinions of the doctors conflict. Parker, supra; Curry v. State, 271 Ark. 913, 611 S.W.2d 745 (1981). This Court must affirm the trial court’s finding on the issue of sanity if there is substantial evidence to support it. Parker, supra. In appellant’s case the psychiatric report of the Arkansas State Hospital concluded that he was “fit and responsible.” We find this to be substantial evidence to support the trial court’s finding.

From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.

Affirmed.


author: Richard B. Adkisson, Chief Justice. Frank Holt, Justice,

text:
    Herbert HATFIELD et ux v. CITY OF FAYETTEVILLE, Arkansas
    82-250
    647 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered March 14, 1983

      Murphy ir Carlisle, for appellants.

      James N. McCord, City, Atty., for appellee.
   Richard B. Adkisson, Chief Justice.

The appellants own real property, zoned commercial, at 240 North College in the City of Fayetteville. In 1960, at a cost of $3,000.00 the appellants installed on-site free-standing signs to advertise the retail automobile dealership operated by them at that location.

When installed, the appellants’ signs complied with all applicable city ordinances. On December 19, 1972, a comprehensive sign ordinance (Ordinance No. 1893) was adopted by the Fayetteville Board of Directors. The signs owned by the appellants do not conform to the size restrictions and setback requirements prescribed by Ordinance No. 1893.

An amortization schedule contained in § 17B-5 (A) (1) (C) of the Fayetteville Sign Ordinance requires alteration or removal of all on-site nonconforming signs within seven years from the effective date (January 19, 1973) thereof. Ordinance No. 1893 provides for no type of compensation for owners of pre-existing, nonconforming signs, other than the granting of a period of seven years from the effective date in which to amortize their investment. The owners are also responsible for all removal costs. The appellants refused to alter or remove the nonconforming sign at 240 North College and this action was brought by the City of Fayetteville seeking an injunction against continued noncompliance.

The case was submitted to the trial court under stipulated facts and exhibits. On July 12, 1982, the Washington County Chancery Court ruled that § 17B-5 (A) (1) is constitutional on its face and as applied to the appellants. The court found that the appellants had failed to prove by a preponderance of the evidence that application of said Section to them would be unreasonable. The court based its decision on evidence of the original cost of the appellants’ signs, the signs’ age, the cost of removal, and the extent of depreciation for Federal Income Tax purposes. The court noted the absence of evidence to show damage to the real property, extent of business losses, or remaining economic life of appellants’ signs.

The appellants were ordered to remove the signs within 30 days and the appellee authorized, upon the appellants’ failure to do so, to remove the sign at the expense of the appellants.

Appellants argue on appeal that the Fayetteville Sign Ordinance is unconstitutional on its face and if not it is unconstitutional as applied to appellants. This Court resolved the issues raised here in the case of City of Fayetteville v. McIlroy Bank & Trust Company, et al. 278 Ark. 500, 647 S.W.2d 439(1983). There we upheld Ordinance No. 1893 as constitutional on its face and held that it was constitutional as applied under the same basic facts as are contained in this case; therefore, that case is controlling here.

Affirmed.

Holt and Purtle, JJ., concur.

Frank Holt, Justice,

concurring. I would affirm based on the undisputed evidence that the sign in question adversely affects the safety of the traveling public. In City of Fayetteville v. S & H, Inc., 261 Ark. 148, 547 S. W.2d 94 (1977), we recognized that the city, through its police power, may validly require the removal of a sign where it is inimical to traffic safety. See also Fayetteville Bd. of Adj. v. Osage Oil, 258 Ark. 91, 522 S.W.2d 836 (1975).

Purtle, J., joins in this concurrence.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice,

text:
    CITY OF NORTH LITTLE ROCK et al v. Jack L. GRAHAM et al
    82-257
    647 S.W.2d 452
    Supreme Court of Arkansas
    Opinion delivered March 14, 1983
    [Rehearing denied April 11, 1983.]

      Jim Hamilton, City Atty., for appellants.

      Charles L. Carpenter and Charles L. Carpenter, Jr., for appellees.

      Gill, Skokos, Simpson, Buford ir Owen, P.A., for amicus curiae Arkansas Municipal League.
   Richard B. Adkisson, Chief Justice.

Appellee, Jack L. Graham, brought suit on behalf of citizens and taxpayers of North Little Rock to declare the “public safety fee” collected pursuant to City Ordinance No. 5202 unconstitutional as an illegal exaction and asked that appellant, the City of North Little Rock, be required to refund monies illegally collected pursuant to the ordinance. The Pulaski Chancery Court granted the relief requested. On appeal we affirm.

On January 5,1981, the North Little Rock City Council enacted Ordinance No. 5202 for the purpose of raising $700,000 so that the policemen and firemen of North Little Rock could receive salaries and benefits commensurate with those received by Little Rock policemen and firemen. The $700,000 was to be collected by assessing a $3.00 per month “public safety fee” on the water bill of each household, business, and apartment residence in North Little Rock. The ordinance also provided that persons receiving $6,000 or less in salary be exempt from the charge. Approximately $343,620 was collected beginning on January 26, 1981, and was placed in the general fund of the city.

On April 13, 1981, the city council adopted Ordinance No. 5240 which proposed a city sales and use tax and provided that Ordinance No. 5202 would be repealed “when and if the citizens of North Little Rock approve the levy of the said sales and use tax.” The voters approved Ordinance No. 5240 on May 19, 1981, but it did not go into effect until July 1, 1981, pursuant to Ark. Stat. Ann. § 19-4514 (e) (1) (Repl. 1980). Meanwhile, the city continued to collect the “public safety fee” until the end of June, although it later refunded the amounts collected between May 19 and July 1.

The first question which we must decide is whether the public safety fee created by Ordinance No. 5202 was a fee or a tax. If it was a tax, the ordinance is void as an illegal exaction, since it was never voted upon by the voters as required by Ark. Stat. Ann. § 17-2002 (Repl. 1980). If it was a fee, it was a valid enactment outside the scope of Ark. Stat. Ann. § 17-2002 which has no application to fees.

Taxes are enforced burdens exacted pursuant to statutory authority. Miles v. Gordon, 234 Ark. 525, 353 S.W.2d 157 (1962). Municipal taxes are those imposed on persons or property within the corporate limits, to support the local government and pay its debts and liabilities, and they are usually its principal source of revenue. 16 E. McQuillin, Municipal Corporations § 44.02 (3rd ed. 1979).

There is a distinction between a tax imposed for general revenue purposes and a fee charged in the exercise of police power. Parking Authority of Trenton v. Trenton, 40 N.J. 251, 191 A.2d 289 (1963). An example of a fee charged in the exercise of police power is found in Holman v. City of Dierks, 217 Ark. 677, 233 S.W.2d 392 (1950). In Holman we held that an “annual sanitation charge” of $4.00 per business and residence which was to pay for fogging the city with an insecticide three times a year was a fee “for services to be rendered” and not a tax. In Vandiver v. Washington County, Ark., 274 Ark. 561, 628 S.W.2d 1 (1982) we considered whether an annual $15 charge for emergency medical services was a fee or a tax. We concluded that it was a fee, but we note that in that case the people had voted on and approved the charge.

Here, it is undisputed that the people never voted on the $3.00 charge and that the charge is to pay for a salary increase for policemen and firemen. Therefore, it is a payment exacted by the municipality as a contribution toward the cost of maintaining the traditional governmental functions of police and fire protection. See Olustee Co-operative, Association v. Oklahoma Wheat Utilization Research & Market Development Comm., 391 P.2d 216(Okla. 1964). It is not for a specific, special service such as the spraying for insects but is a means of raising revenue to pay additional money for services already in effect. Therefore, we conclude that this $3.00 charge is a tax and not a fee.

Other issues presented by this case are either rendered moot by our decision or were not argued on appeal. The trial court’s order is therefore affirmed.

Affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I agree it is a tax. I think Vandiver should be overruled in that regard, as I noted on rehearing.


author:
Richard B. Adkisson, Chief Justice.
      Darrell Hickman, Justice,

text:
    Robert Ira ROBERTS v. STATE of Arkansas
    CR 83-12
    648 S.W.2d 44
    Supreme Court of Arkansas
    Opinion delivered March 14, 1983
    [Rehearing denied April 25, 1983.]

      Jones ir Petty, by: Melvin E. Petty, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.

      Hickman, J., would grant rehearing.

   Richard B. Adkisson, Chief Justice.

On July 21, 1982, appellant, Robert Ira Roberts, was convicted of second degree murder and sentenced to 20 years imprisonment and fined $15,000. The Court of Appeals certified this case to us under Arkansas Supreme Court Rule 29 (4) (a). The primary question involved in this appeal is whether a party can impeach his own witness by the use of a prior inconsistent hearsay statement under Rule 607, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979). We reverse and remand, holding that it is permissible if the probative value on the issue of impeachment outweighs the prejudicial effect arising from the danger that the jury will give substantive effect to the prior inconsistent statement.

The evidence reflects that on December 23, 1981, appellant shot and killed his wife in the kitchen of their home. Richard Roberts, the 13-year-old adopted son of the appellant and the deceased, was the only witness present at the time of the murder. That same day Richard gave a statement to the sheriff’s office in which he stated that his father and mother were having an argument concerning bills; that his father left the house and returned with a .22 caliber pistol which he pointed at the deceased and threatened to kill her; that the deceased begged appellant not to shoot her, but he grabbed her by the throat and shot her and then dropped her from his grasp to the floor; and that appellant told him to call an ambulance.

When the State called Richard as a witness at trial, however, his testimony was not as damaging to appellant as the statement which he had given on the 23rd. He testified at trial that appellant and his mother were arguing on the day of the accident about financial obligations; that appellant went out the front door but shortly came back in, and the argument continued; that while he was in the laundry room, he heard a gun go off but did not see a gun until after the murder; and that when appellant saw him he told him to call an ambulance.

Prior to trial appellant filed a motion in limine seeking to prohibit references to the December 23 statement. At the pretrial hearing it was disclosed that Richard had made two statements subsequent to the December 23 statement in which he stated that parts of the December 23 statement were untrue. The two subsequent statements about the incident were consistent with his eventual testimony at trial. The trial court ruled that the statement of December 23 would be admissible for the purpose of impeaching Richard’s testimony.

We first note that although Richard fully admitted making the prior inconsistent statements, the trial court subsequently allowed the prosecution to introduce the complete text of the statement through a deputy sheriff. To do so was error. Once a witness has fully and unequivocally admitted making the prior inconsistent statement, then it cannot be proven again through another witness. McCormick, Evidence, § 37 at 72-73 (2ded. 1972). We also note that in this particular case, the prior inconsistent statements could not be a part of the proof in the case because they are expressly excluded as substantive evidence under Rule 801 (d) (1) (i), Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979) which maintains as hearsay unsworn out-of-court statements in criminal cases.

We still must decide whether the trial court erred in allowing the State to impeach Richard, its own witness, with his December 23 hearsay statement by asking him if he had in fact made the prior inconsistent statements. Under the circumstances of this case we believe the trial court erred by allowing the impeachment because the probative value of such testimony was far outweighed by the danger of unfair prejudice. Therefore, this evidence should have been excluded under Rule 403, Ark. Stat. Ann. § 28-1001 (Repl. 1979).

The State argues that asking Richard about his prior inconsistent statements was for impeachment purposes, but it really was a mere subterfuge. The only conceivable reason that the State could have for impeaching its own witness was to bring before the jury hearsay information not admissible as substantive evidence, hoping that the jury would accord it substantive value although it was clearly inadmissible as such under Rule 801 (d) (1) (i). In this instance the danger of convicting the defendant on unsworn testimony is too great; the limiting instruction to the jury directing them to consider the prior inconsistent statement for impeachment only was not a sufficient safeguard.

Reversed and remanded.

Hickman and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The question is whether one should be allowed to impeach his own witness and under what circumstances. The majority has concluded that the State’s impeachment of Richard Roberts was merely a subterfuge to get before the jury a prior inconsistent statement which would most likely be treated by the jury as evidence of the truth of the matter, rather than be considered merely to show that Richard was not telling the truth about certain issues. I disagree with the majority’s conclusion for three reasons: First, I cannot say that the trial court manifestly abused its discretion by allowing the State to impeach Richard; second, I cannot say as a matter of law that the State was using a subterfuge; and, finally, it is my judgment that the majority has severely restricted the meaning of Ark. Stat. Ann. § 28-1001, Rule 607 (Repl. 1979), so that a prior inconsistent statement can only be used when it qualifies as substantive admissible evidence under Ark. Stat. Ann. § 28-1001, Rule 801.

The jury was properly instructed that the statement was to be considered only to show that Richard had made a prior statement that was inconsistent with his testimony under oath, and was not to be considered as substantive evidence. In my judgment the trial court’s decision was correct. We must find a manifest abuse of discretion before we can set aside his decision. Ark. Stat. Ann. § 28-1001. Rules 103 and 104.

There are cases that have held that a party cannot call a witness solely to impeach him with a prior inconsistent statement that is otherwise admissible. The cases say that to do so would be a subterfuge to get the prior statement before the jury. Whitehurst v. Whitehead, 592 F.2d 834 (5th Cir. 1979); United States v. Fay, 668 F.2d 375 (8th cir. 1981); United States v. Morlang, 531 F.2d 183 (4th Cir. 1975). Butin those cases the witnesses were called for absolutely no other purpose than to impeach. Clearly, a different situation exists here.

Richard Roberts was the only eyewitness to the killing and the State had to call him. Much of his testimony corroborated the essential parts of the State’s case against the appellant. If the State was to successfully prove the purposefulness of the appellant’s act, as it was entitled to do, it should have been permitted to show that Richard’s testimony had suddenly changed, since living with his father and his father’s sister, with regard to his characterization of his father’s intent. I find no manifest abuse of discretion.

Since the impeachment will not be allowed on retrial it is unnecessary for us to decide whether the court erred in allowing Richard’s statement into evidence once he admitted making it. By finding that to be error the majority ignores the existence of Ark. Stat. Ann. § 28-1001, Rule 613, and its possible effect on the issue. The majority does not cite Arkansas case law in support of its ruling but instead cites an old section from McCormick’s Evidence which has been supplemented since the adoption of Rule 613. We should reserve our judgment until it is necessary for us to reconcile our case law with Rule 613.

Hays, J., joins in this dissent.


author: George Rose Smith, Justice.

text:
    Bub SNOW, d/b/a BUB SNOW DRILLING COMPANY v. C.I.T. CORPORATION OF THE SOUTH, INC. et al
    82-232
    647 S.W.2d 465
    Supreme Court of Arkansas
    Opinion delivered March 14, 1983

      Meadows ¿r Elcan, by: Frank C. Elcan, 11 and Steven Davis, for appellant.

      Hesikell, Donelson, Bearman, Adams, Williams ér Kirsch and Wright, Lindsey & Jennings, for appellee C.I.T. Corporation of the South, Inc.

      Richard L. Peel, for Tennessee Well Co. and Southeastern Drilling Supply Co.

      Friday, Eldredge 6- Clark, by: George Pike, Jr., for appellee Schramm, Inc.
   George Rose Smith, Justice.

In January, 1980, the appellant Snow, engaged in the business of drilling water wells, purchased a drilling rig under an installment contract reciting a cash price of $283,500 and finance charges of $118,786.20, the total being payable in 60 equal monthly installments. Snow had difficulties with the rig’s performance from the outset. Two months after the purchase Snow had his attorney send a letter to the sellers electing to revoke his acceptance of the rig and demanding the return of his $40,228.62 down payment. The sellers refused to recognize Snow’s right to revoke his acceptance. On April I Snow brought this suit in equity to obtain revocation of the sale, recovery of the down payment, and substantial damages for loss of profits during the two months he used the rig.

After an extended trial the chancellor held that the contract was not usurious as charged, that Snow was not entitled to revoke his acceptance, that Snow’s $10,000 note for part of the down payment should be canceled, that Snow should recover $6,015 for breach of the implied warranty of merchantability, and that Snow is liable for a deficiency judgment of $62,293.89 resulting from a sale of the rig during the pendency of the case. We can best state the pertinent facts as we discuss the points argued on direct and cross appeal.

Snow first argues that the contract, embracing an interest rate of more than 10%, was usurious because the recitation that it was to be governed by Georgia law was a subterfuge to avoid Arkansas usury laws.

Wé find no merit in this argument. The Uniform Commercial Code provides that when a transaction bears a reasonable relationship to the particular enacting state and also to another state, the parties may agree that the law of either state shall govern. Ark. Stat. Ann. § 85-1-105 (1) (Add. 1961). Here four states were directly involved: Arkansas, where the contract of sale was negotiated between Jack Wilkes, the president of an Arkansas drilling supply company, and Snow, a resident of Everton, Arkansas; Tennessee, where the actual seller, Tennessee Well Supply Company, a dealer, had the rig for sale, and where Snow and Wilkes went to sign the contract documents; Georgia, where the finance company, C.I.T. Corporation, had its principal office and completed the sale by signing the documents; and Kansas, where the rig was delivered and used by Snow as best he could before he sought revocation of his acceptance.

The whole transaction was contingent upon C.I.T.’s willingness to finance it. C.I.T. insisted that the contract be governed by Georgia law, a provision that in C.I.T.’s,words was “not negotiable.” All the parties agreed to it. With the transaction having a direct connection with four states, we cannot say that the choice of Georgia law was not a reasonable one. We may refer to our discussion in Cooper v. Cherokee Village Develop. Co., 236 Ark. 37, 364 S.W.2d 158 (1963), where, as here, we found that the selection of another state’s law was not a cloak to avoid Arkansas’s usury laws.

We must, however, sustain Snow’s principal argument, that the chancellor was mistaken in refusing to give effect to Snow’s revocation of his acceptance of the rig. In reaching his conclusion the chancellor relied, in part, upon Snow’s failure to tender the return of the rig when he filed his complaint and his continued refusal to return 1,500 feet of pipe and other accessories, valued at a total of $47,485.

A tender of goods purchased was a condition to the right of rescission under our earlier law, but the Uniform Commercial Code dropped that requirement. We quote from one treatise on the Code:

A tender of the goods by the buyer to the seller is not an essential element of revocation. All that is required by the Code is a notification of revocation. The Code declares that notification is .not effective until notice is given and by necessary implication states that there is a sufficient revocation of acceptance when a “notice” is given even though the buyer still has possession of the goods and even though he does not make any tender of the goods to the seller. The concept of revocation of acceptance is not to be confused with rescission.
# # # # #
If the buyer has paid for the goods in advance or has incurred any expense or damages for which the seller is liable, the buyer, upon making a rightful revocation of acceptance is entitled to hold the goods until he has been paid. That is, the Code in such a case gives the buyer a security interest in the goods.

Anderson, Uniform Commercial Code, § 2-608.18 (2d ed. 1971); Ark. Stat. Ann. § 85-2-608.

The chancellor’s alternative and principal ground for his decision was that the defects in the rig were not sufficient to substantially impair its value to Snow, as required by the Code. § 85-2-608 (1). The decree denied revocation but awarded Snow $6,015 as damages for breach of the implied warranty of merchantability.

We cannot agree with the chancellor’s decision. When Snow bought this rig, a model T685, he already had a model T64, also manufactured by the appellee Schramm, Inc., brought into the case by Tennessee Well Supply as a third-party defendant. During the negotiations Wilkes represented that the later model was superior to the older T64. This did not prove to be true.

Snow and his wife, who worked with him in the business, thought the new rig was idle for 46 days between its delivery on January 15 and the notice of revocation on March 11. Snow testified that the T64 would drill a 1200-foot hole in a day and a half, but he drilled only six holes with the T685 while he tried to use it. Not only did it drill too slowly, it was continually down for necessary repairs. We make no effort to describe all the defects, which were usually referred to by the witnesses in terms too technical for our comprehension. Snow’s testimony was corroborated by that of others in the same business who had used both models. Wilkes showed that he sent his repairman to work on the rig when Snow complained, but the repairs were evidently not effective. It is apparent that neither Wilkes nor Tennessee Well Supply brought the complaints to the attention of Schramm, the manufacturer.

The really decisive testimony is that of Schramm’s expert repairman, Dante DeCecco, who certainly knew more about the rigs than any other witness. DeCecco did not see the T685 in question until it was surrendered in October, 1980, and taken to Wilkes’s place of business for repair. There DeCecco spent a week modifying and repairing the rig. He testified that after the T685’s were first marketed the manufacturer found that major modifications were needed. One such modification came out in October, 1979, but it was not on the rig sold to Snow the following January. Here are excerpts from the abstract of DeCecco’s testimony:

The majority of the work I have done on T685’s in the last year has been warranty work. The T685 requires five or six major modifications or engineering changes. These changes were not made on Mr. Snow’s rig until October, 1980. All my modifications on these 50 rigs [mentioned earlier] have been essentially the same. I have been more or less isolated to the T685 changes in the last year and a half. ... Mr. Snow’s rig would have had to be down for about a week to make the modifications that had to do with operational efficiency.

DeCecco also testified that it is the dealer’s responsibility to notify Schramm when a customer complains. He said he would have come out and spent a week making the repairs to Snow’s rig if the dealer or Snow had called him, but no one did. We conclude that it is shown by the record as a whole, and especially by the testimony of the manufacturer’s own employee, that Snow was entitled to revoke his acceptance of the rig because its non-conformity substantially impaired its value to him.

Snow also argues that the chancellor was wrong in finding that Snow’s claim for lost profits had not been proved sufficiently. Our rule is that such a loss must be established with reasonable certainty. Robertson v. Ceola, 255 Ark. 703, 501 S.W.2d 764 (1973). Here the claim rested largely upon the testimony of interested witnesses, Snow and his wife. The chancellor was in a far better position than we are to weigh their testimony. There was a significant absence of documentary proof of past profits made from the successful drilling of wells similar to those Snow says he would have drilled had the rig functioned properly. Moreover, the plaintiff’s burden was to prove consequential damages "which could not reasonably be prevented.” § 85-2-715. During the two months in question Snow could have used his T64; he offered scant explanation of why that was not done. In our opinion the failure to use the other rig was not a matter of mitigating damages already established but rather one of reasonably minimizing the loss in the first place. As pointed out in paragraph 3 of the Comment to § 85-2-715, the earlier rule is modified “by requiring first that the buyer attempt to minimize his damages in good faith.” We do not find the chancellor’s denial of lost profits to be clearly against the preponderance of the evidence.

Both Tennessee Well Supply and Schramm have cross-appealed from the award of $6,015 for breach of warranty, but since our holding supersedes that award those points are moot. Tennessee Well Supply also cross-appeals from the trial court’s cancellation of Snow’s $10,000 note on the ground that Tennessee Well Supply was an unlicensed foreign corporation doing business in Arkansas when Snow executed the note in Arkansas at Wilkes’s request. Tennessee Well Supply’s president testified that his company had done some business in Arkansas for a few years before 1980; so the chancellor’s ruling was correct under the Wingo Act. Ark. Stat. Ann. § 64-1202 (Repl. 1980).

Reversed and remanded for the entry of a decree giving effect to Snow’s revocation of his acceptance as against Tennessee Well Supply, directing the return of his down payment, charging him with the $47,485 value of the articles he has not returned, and disposing of other remaining matters.


author: Frank Holt, Justice.

text:
    Ronnie LOGAN et al v. Bill ROSA
    82-235
    647 S.W.2d 469
    Supreme Court of Arkansas
    Opinion delivered March 14, 1983

      G. Ross Smith, P.A., for appellants.

      Harkey, Walmsley, Belew & Blankenship, for appellee.
   Frank Holt, Justice.

The appellee is the former superintendent of schools for the Mountain View School District. He brought suit in chancery court for breach of contract after he was discharged by the school board members, the appellants. The case was transferred to the circuit court. This appeal results from the decision of the trial court, sitting without a jury, that the appellants wrongfully discharged the appellee from his position as superintendent of the schools and, consequently, appellee is entitled to compensation pursuant to his two year contract. The sole issue presented by appellants is whether the finding by the trial court that the school board lacked sufficient cause to discharge the appellee is clearly against the preponderance of the evidence, ARCP, Rule 52 (a). We affirm.

On January 12, 1981 the board voted 4-2 to renew the superintendent’s contract. Members Baxter and Logan dissented. The new two year contract was signed on February 5, 1981. It was to run from July 1, 1981 to June 30, 1983. In the March 1981 school elections two of the members who had voted to renew the superintendent’s contract were replaced with new members. In early April the daughter of the superintendent was involved in an incident at school relating to alcoholic beverages. The superintendent suspended his daughter for the remainder of the semester. This incident was discussed in executive session by the board on April 13. On April 16 an attorney wrote Logan on behalf of the superintendent saying that he had information that Logan had reported to a local paper that appellee’s daughter was found in possession of an alcoholic beverage at the Mountain View School and threatening litigation if Logan or his attorney failed within ten days to respond in order to work out the matter. On April 28, the superintendent took an affidavit from a school custodian stating as follows:

I, Jimmy Joe Wallis, an employee of the Mountain View School District was in Roger Hopper’s Auto Parts Store and was approached by Roger Hopper who had recently been elected to the Mountain View School Board. Roger Hopper said to me ‘Jimmy Joe, you’re for Bill Rosa, aren’t you?’ I repeated to Roger Hopper that Bill Rosa had never done anything against me and that I sure was not against him. Roger Hopper replied, ‘Well, he thinks David Baxter has been giving him ‘Hell’ on that Board, he hasn’t seen anything yet as to what’s going to happen when I’m on the Board.’
The above statement is a true statement made to me by Roger Hopper in Hopper’s Auto Parts Store. I was also a Mountain View School employee when the above statement was made.

The superintendent sent the affidavit to his attorney. The superintendent also took the affidavit to the recently elected Hopper in May and discussed it with him. Hopper denied making the statements and suggested the matter be presented to the school board. On June 10 the superintendent’s lawyer wrote Hopper concerning the affidavit and requested a response from Hopper or his attorney within ten days. At the regularly scheduled board meeting on July 13, Hopper requested a special meeting to discuss the affidavit and the letter he had received from the superintendent’s attorney. This meeting was held on July 27, 1981. The custodian disavowed the affidavit. At that meeting the board voted 5-1 to terminate the superintendent’s contract.

The appellants summarize the grounds which they assert justified the firing as follows:

(1) Appellee communicated with two board members through his attorney in a threatening manner with regard to personal litigation.
(2) Appellee intimidated a school custodian to coerce him into executing a false affidavit that could only be used to threaten and intimidate a board member.
(3) Appellee refused again and again to provide information requested by certain board members.
(4) Appellee refused to work with board member Logan at all.
(5) Appellee suspended his daughter in violation of the policies of the district, this being the prerogative of the board.

In support of their position, appellants adduced testimony and other evidence from the custodian Wallis and board members Turner, Hopper, Partee, Logan and Baxter. It is undisputed that the appellee superintendent did communicate through his attorney with two of the school board members, Logan and Hopper,- with reference to resolving their personal differences; namely, the controversy about the Wallis affidavit and the superintendent’s suspension of his daughter from school. The superintendent, who had served as such for 15 years, testified, however, that the custodian’s affidavit accurately reflected what he had been told by him and that he, the superintendent, did not coerce or intimidate him. The superintendent denied that he had ever failed or refused to furnish any requested information to the school board members and further denied that he had refused to work with any school board member. Admittedly, he suspended his 12 year old daughter due to the incident involving a bottle of beer on the school premises. Board member Logan agrees that even though a suspension in an alcohol related incident is a matter for the school board, the action taken by the superintendent was “sufficient”.

No citation of authority is necessary to support the proposition that the factfinder, here the trial court, is in a better position than are we to observe and evaluate the demeanor, the prejudice or bias, and the interest and credibility of a witness. ARCP, Rule 52 (a), which is applicable here, provides: “Findings of fact shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Here, we certainly cannot say that the finding of the court was clearly erroneous.

Affirmed.


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

text:
    John W. and Juanita SHAMBLIN v. Dr. Spencer D. ALBRIGHT, III
    82-225
    647 S.W.2d 470
    Supreme Court of Arkansas
    Opinion delivered March 14, 1983

      Jones, Gilbreath ir Jones, lor appellants.

      Davis, Cox & Wright, by: Sidney P. Davis, Jr., for appellee.
   Darrell Hickman, Justice.

This is a medical malpractice case. The jury returned a verdict in favor of the defendant medical doctor and we affirm.

On appeal two arguments are made for reversal: First, that the trial court wrongly prevented the appellants from presenting evidence on all theories of liability; second, that the court refused to permit certain cross-examination of a doctor testifying for the appellee. We find no merit to either argument.

The appellee, Dr. Spencer D. Albright, a dermatologist practicing in Fayetteville, Arkansas, had extensively treated the appellant for skin cancer. Mr. Shamblin had a long history of serious damage to his face from the sun. In 1975, Dr. Albright performed cryosurgery on a skin cancer on Mr. Shamblin’s face. Apparently it was not healing well and Mr. Shamblin returned to Dr. Albright many times. Dr. Albright did not perform another biopsy. Eventually, Mr. Shamblin sought a second opinion from a Dr. Shadid and it was determined that Dr. Albright’s treatment was not successful and that cancer persisted.

Shamblin sued Albright for malpractice in the treatment of his cancer. His wife joined in the suit. The trial court entered a pre-trial order almost a year before trial specifically limiting the issue of liability to whether Dr. Albright should have ordered an additional biopsy after the cryosurgery. That was to be the sole issue in determining whether Dr. Albright was guilty of malpractice.

Well into the trial, the appellant sought to question Dr. Vernon Carter about whether he would use cryosurgery on a lesion as large as ten millimeters. An objection was timely made and the attorneys discussed at length with the court whether this was at variance from the court’s pre-trial order. The trial court ruled that it was at variance and prohibited the inquiry. It was not a broad arbitrary order but, indeed, a specific one. There is no doubt it was entered well before the trial with notice to both parties. The order noted the names of the attorneys present for both parties when the order was made. There was no exception made to the order until it came up during the cross-examination of Dr. Carter. Such pre-trial orders, permitted by ARCP, Rule 16, are valuable tools in handling litigation in an orderly and efficient manner. We find no abuse of discretion by the court in limiting the appellant to his theory that the appellee was negligent because he failed to order another biopsy.

The second issue concerns the cross-examination of Dr. Thomas Jansen, a dermatologist who testified for the appellee as an expert. During his cross-examination appellant sought to show that Dr. Jansen had a financial interest in the outcome of the case. In-camera the doctor was asked whether he had such an interest and Dr. Jansen said that he did not. He was then asked if a judgment was entered against Dr. Albright whether it would cause Dr. Jansen’s insurance rates to rise. Dr. Jansen essentially answered that he was not sure, and said, “I suspect that any suit that is found in favor or against the insurance company causes an adjustment in experience; . . . . ”

We cannot say the trial court abused its discretion in preventing this line of cross-examination. The specific argument that Dr. Jansen’s malpractice insurance might go up was considered too speculative by the trial court and any value that might be attached to it would be far outweighed by a prejudicial impact. We cannot say the court abused its discretion in finding that it was not proper relevant evidence that the appellant was entitled to present to the jury to show bias and prejudice. Firestone Tire & Rubber Co. v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982). The appellant was allowed to ask the doctor in front of the jury how much he was paid to testify and who would pay him. He answered that his fee would be $5,000 to $6,000 and Dr. Albright would pay him.

We find no prejudicial error.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because the majority opinion misinterprets ARCP Rule 16 and the trial court erred in limiting appellants’ right to present evidence and to cross-examine witnesses. In my opinion the trial court also erred in specifically limiting the issue of liability to the question of whether Doctor Albright should have ordered an additional biopsy after cryosurgery.

It is necessary to discuss Rule 16 in order to understand what happened in this case. The rule relates to pretrial procedure. It specifically states that when a pretrial order is issued pursuant to Rule 16 the order controls the subsequent course of the action, unless modified to prevent manifest injustice. In reading this rule I do not find any authority for a trial court to exclude proof of matters which are in issue. The reporter’s notes to Rule 16 indicate that the rule has little effect on prior Arkansas law. Previously, no provisions existed for allowing a trial court to delete allegations concerning liability when the matter was still in issue. In my opinion the purpose of Rule 16 is to rid the court system of uncontested matters and simplify the issues. In the present case the trial court simplified the appellant right out of court. The concluding portion of Rule 16 limits the court’s order to issues which are not disposed of by admissions or agreements between counsel. An order properly entered pursuant to this rule no doubt controls the subsequent course of action, unless otherwise modified.

We do not have the facts surrounding the issuance of the pretrial order. It appears that it was a routine order to which appellants paid little attention. The appellants painfully learned of the existence of the order when they attempted to prove the allegations contained in the complaint. The court had simply “pretrialed” the appellants out of most of their theories of liability. In addition to the pretrial order being too broad I think the court should have allowed an amendment at the trial to prevent a manifest injustice. In my opinion this pretrial order was contrary to the rationale stated in Sherman v. U.S., 462 F.2d 577 (5th Cir. 1972). The opinion in Sherman stated:

Basically, these [pretrial] orders and stipulations, freely and fairly entered into, are not to be set ¿side except to avoid manifest injustice.

It is my opinion that the trial court unduly restricted the appellants both in the cross-examination of opposing witnesses and in the presentation of direct evidence. A Doctor Jansen testified on behalf of the appellee. He had previously testified for the same insurance company in other cases and was to receive between $4,000 and $6,000 for this appearance. The witness and the appellee were insured for malpractice by the same company. The witness said he thought that if the case were lost it would have a bearing on his own insurance rates. Also, he suspected the pay for his testimony would come directly from the appellee’s insurance carrier. The trial court would not allow the foregoing testimony to be presented to the jury. In the case of Murray v. Jackson, 180 Ark. 1144, 24 S.W.2d 960 (1930) we held such cross-examination to be proper. In Murray, supra, a doctor was testifying in opposition to other testimony on behalf of the appellant when the opposing counsel was permitted to ask the doctor who employed him. On appeal the trial court was affirmed and in the opinion it was stated:

The cross-examination was proper for the purpose of impeaching or contradicting the witness. The jury might have found that the employment of the physician made him biased in favor of the defendant, or at least tended to show the interest of the witness in the case. Because it chanced to show that an insurance company was back of the defendant to the action does not affect its competency.

It appears to me that the fact that a witness was to receive several thousand dollars for his testimony and also thought his insurance rate would increase if the appellant won the case would be enough to raise the issue of bias. Sometimes a witness may be unaware that his testimony is shaded in favor of or against one of the parties. Weinstein’s Evidence § 607 [03] (1982). It is the tendency of most people to shape their sensory reactions to fit the testimony they want to give. Wigmore on Evidence §§ 940 and 945 (Chadbourn revision 1970). Based on the foregoing, I believe errors were committed which can only be remedied through a new trial.


author: Robert H. Dudley, Justice.

text:
    TAGGART & TAGGART SEED COMPANY, INC. v. The CITY OF AUGUSTA, Arkansas et al
    82-227
    647 S.W.2d 458
    Supreme Court of Arkansas
    Opinion delivered March 14, 1983

      Jim. Petty and Joe Peacock, for appellant.

      John D. Eldridge, III, for appellees.
   Robert H. Dudley, Justice.

In 1963 the City Council of Augusta passed a comprehensive zoning ordinance. It provides that before the city council may act upon a proposed change in the boundary of a zoned area the matter must be submitted to the city planning commission. In 1982 the city council, by ordinance, extended the boundary of a zoned area even though the proposed change was never submitted to the planning commission. The boundary changes resulted in a zoning classification which prevented completion of a metal grain storage facility on appellant’s property. Appellant filed suit in chancery court seeking to enjoin the city from enforcing the 1982 ordinance. While many issues are argued, the pivotal one is whether the city council may disregard the procedural requirements of its zoning ordinance and change a boundary without any preliminary action before the planning commission. The resolution of the issue turns on whether the procedural requirements of the comprehensive zoning ordinance are mandatory or discretionary. Jurisdiction is in this Court as the case involves the interpretation of a municipal ordinance. Rule 29 (1) (c). The chancellor upheld the 1982 ordinance amending the boundary. We reverse since the city did not substantially comply with the mandatory procedural provisions of the comprehensive zoning ordinance of 1965.

Before deciding this case we were faced with a difficult appellate procedural problem. While appellant makes a two and one-quarter page argument on the pivotal issue it does not give one citation of authority. In effect, we have been asked to research the law for appellant. In contrast, the appellee city has submitted an excellent brief.

In Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977) we stated that we will not perform research for an appellant unless it is apparent from the argument that the point is well taken. Here, it is clear that the appellees did not follow the procedure set out in its ordinance. After deliberation we have decided that justice requires our consideration of the issue.

Cities do not have the inherent authority to enact legislation. The validity of city ordinances depends on authority granted either by the Constitution or the General Assembly. City of Little Rock v. Raines, 241 Ark. 1071, 411 S. W.2d 486 (1967). In addition, at common law the property rights of the landowner included the right to occupy his land as he saw fit. In Arkansas the enabling authority for limiting that right by zoning is statutory. Ark. Stat. Ann. Title 19, Chapter 28 (Repl. 1980). The enabling legislation which in general regulates exercise of zoning powers today is Act 186 of 1957. Wright, Zoning Law in Arkansas: A Comparative Analysis, 3 U. Ark. Little Rock L. J. 421 (1980). The 1957 Act, before a later amendment, required a complete review by a planning commission before the legislative body of the city took action to alter boundaries. There were no exceptions. However, the enabling legislation was amended in 1959 to authorize an alternative procedure to amend boundaries simply “by a vote of the city council.” Ark. Stat. Ann. § 19-2830 (b) (Repl. 1980). It was after this 1959 alternative procedure had been statutorily authorized that Augusta, in 1963, adopted its comprehensive zoning ordinance. The ordinance adopted does not provide for the alternative method of amendment of boundaries, but, instead, provides for amendment only through the complete planning procedure. That choice of procedures does not conflict with the enabling statute for it simply continues to authorize the more extensive planning procedure.

The doctrine of implied repeal applies to ordinances as well as statutes. Helena v. Russwurm, 188 Ark. 968, 68 S.W.2d 1009 (1934). However, the 1982 ordinance is not repugnant to the 1963 original zoning ordinance as the 1982 ordinance does not mention the failure to properly administer the proposed zoning boundary change. Likewise, the 1982 ordinance does not contain any language indicating an attempt to repeal, expressly or by implication, the administrative procedure set out in the original zoning ordinance. Thus, the original zoning ordinance providing for the extensive planning procedure is still in effect.

We have held that a failure to substantially comply with a procedural requirement of the enabling statute renders a zoning ordinance invalid. Searcy v. Roberson, 224 Ark. 344, 273 S.W.2d 26 (1954). Where referral to a planning commission was statutorily required, we held the requirement to be mandatory. City of Corning v. Watson, 252 Ark. 1277, 482 S.W.2d 797 (1972).

A city is required to comply with the mandatory procedural rules of its own municipal ordinances. Welch v. Niagra Falls, 210 App. Div. 170, 205 NYS 454 (1924); Pima County v. Clapp, 23 Ariz. App. 86,530 P.2d 1119 (1975); see 1 R. Anderson, American Law of Zoning, §§ 4.03 & 4.04 (2d ed. 1976). To hold otherwise would encourage the arbitrary use of power which could result in discrimination in administration.

The issue then becomes whether the procedural requirements of the 1963 comprehensive zoning ordinance are mandatory or directory. The same principles for determining whether statutory provisions are mandatory or directory have been applied to determine the mandatory or directory import of city ordinances. 2A C.D. Sands Sutherland Statutory Construction § 57.13 (1973). In Edwards v. Hall, 30 Ark. 31, 37 (1875), we first adopted our principle that those things which are of the essence of the thing to be done are mandatory, while those not of the essence of the thing to be done are directory only.

Here, the essence of the comprehensive zoning ordinance is planning for the coordinated development of the municipality and its environs. In order to accomplish that objective the planning commission is to prepare plans for zoning, land use, streets and community facilities, make recommendations on development, prepare regulations, prepare ordinances for the city legislative body to pass to implement the plan, and generally to advise the city government. The ordinance was drafted so that the city legislative body could rely on the findings and recommendations of the planning commission. Upon adoption of the 1982 boundary change there was a total failure by the city to comply with the essence of the original zoning ordinance. Therefore, there was a failure to comply with the mandatory requirements of the comprehensive zoning ordinance where private property rights were involved. The attempt in 1982 to change the boundary without first complying with the mandatory procedural requirements of the comprehensive zoning ordinance was invalid.

Reversed.


text:
    Elmer FERGUSON and Ethel FERGUSON v. CITY OF MOUNTAIN PINE, Arkansas
    82-255
    647 S.W.2d 460
    Supreme Court of Arkansas
    Opinion delivered March 14, 1983
    Q,. Byrum Hurst, Jr., for appellants.

      David M. Love, for appellee.
   Robert H. Dudley, Justice.

In 1977 the City of Mountain Pine adopted a comprehensive zoning ordinance. A tract of appellants’ land was zoned C-l which is defined in the ordinance as an area of intensive commercial use and the retail core of the city. The description of permitted uses for the classification does not include mobile homes. Appellants operate a laundromat, a grocery store, a drive-in restaurant and a filling station on the land. They submitted requests for a variance to the zoning committee and the city council so that they could place a mobile home on the property for use as a residence with one room to be used as an office. The requests were denied but, even so, appellants moved a mobile home onto the property.

The City of Mountain Pine brought this action against appellants seeking a mandatory injunction to compel removal of the mobile home on the basis that it is an incompatible use of a district zoned C-l. It is from an order of the trial court granting the injunction that appellants bring this appeal. Jurisdiction is in this Court pursuant to Rules 29 (1) (a), (c) and (f). We affirm.

Appellants first argue that the mobile home is incidental and accessory to commercial uses. The ordinance defines an accessory use as “A use which is customarily incidental to the principal use, as a garage for the storage of an automobile by occupant of a residence.” Although appellants argue that their use of the trailer as a residence and office is accessory to the business they operate, they offered no proof at trial that this use is customary or even that it is not unique or rare. See e.g., County of Lake v. LaSalle National Bank, 76 Ill. App. 3d 179, 395 N.E.2d 392 (1970). Therefore, the findings of the chancellor are not clearly against the preponderance of the evidence, and we affirm on this point. ARCP Rule 52; City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981).

Second, appellants argue that the ordinance in question is unreasonable and unconstitutional as applied to their property. They rely on City of Little Rock v. Hunter, 216 Ark. 916, 228 S.W.2d 58 (1950), for the proposition that “as to particular lots, a court may declare a zoning ordinance void upon a proper showing that its application is arbitrary, unreasonable and discriminatory.” At trial, not only did appellants fail to offer any proof as to the unreasonableness of the ordinance but they admitted that the city council did not act in an arbitrary and capricious manner in denying their request for a variance. We have consistently held that we will not consider issues raised for the first time on appeal. See, e.g., Sun Gas Liquids Co. v. Helena National Bank, 276 Ark. 173, 633 S.W.2d 38 (1982). Therefore we do not reach appellants’ second point.

The chancellor specifically found that under the terms of the zoning ordinance appellants’ property is zoned for commercial purposes, no mobile homes are permitted and the city council did not act arbitrarily in refusing to grant a variance to appellants.

Appellants argue that the chancellor’s interpretation of the zoning ordinance as excluding a mobile home on their property was erroneous and unreasonable. The argument, as it is made, assumes that the ordinance is not an exclusive zoning ordinance. That is, it assumed that zoned districts are not established solely for named uses, or groups of uses, to the exclusion of all others. In addition, it assumes that the ordinance is a cumulative zoning ordinance. Such an ordinance establishes a hierarchy of use districts. The single family dwelling is the highest use of the land and industrial or unrestricted is the lowest. See 2 R. Anderson, American Law of Zoning, §§ 9.14, 9.15 (2d ed. 1976). According to appellants’ argument the higher permitted uses, such as residential, are allowable as a matter of law in lower use areas, such as commercial, unless specifically prohibited. Appellants contend that since residences are not specifically prohibited from the lower use commercial district, they, as a matter of right, can use the commercial zone for residential use. The argument is fallacious. We do. not need to decide whether the ordinance is exclusive or cumulative for the result is the same. Clearly, if the ordinance is exclusive, the zoned district is for business use to the exclusion of residential use. The same result is reached even if we assume the ordinance is cumulative and higher uses are allowable in lower use areas under some circumstances. See Katobimar Realty Co. v. Webster, 20 N.J. 114, 118 A.2d 824 (1955). This is because “[T]here is no rule of law, statutory or constitutional, which ordains that any use has an exalted position in a zoning scheme entitling it to move everywhere as a matter of right. Kozesnik v. Montgomery Township, 24 N.J. 154, 131 A.2d 1,9 (1957). Thus, the higher use is not allowable in the lower use area as a matter of right. The question in every case is one of reasonableness under the circumstances. Kozesnik, 131 A.2d at 9; Lamb v. City of Monroe, 358 Mich. 136, 99 N.W.2d 566 (1959). The appellants did not demonstrate that the action of the city was unreasonable in refusing to allow the use of a mobile home as a residence in the core of the central business district. The interpretation of the ordinance by the chancellor was not erroneous.

Affirmed.


text:
    Gregg BERRY v. STATE of Arkansas
    CR 82-114
    647 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered March 14, 1983

      James E. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellant was charged with the crimes of kidnapping and attempted rape. The trial court appointed two attorneys to represent him. One had very little experience in the practice of criminal law while the other was described by the trial judge as “one of the most capable criminal lawyers in the whole area, both Arkansas and Texas.” The attorney with limited criminal law experience visited appellant in jail once and then the experienced criminal law practitioner solely assumed appellant’s defense. In chambers on the morning of trial, while the panel was in the courtroom, appellant filed a handwritten motion requesting that the lawyers appointed be dismissed alleging that: (1) the attorney handling his defense was related to a deputy sheriff; (2) he and the appointed attorney had a personality conflict; and (3) the attorney had visited him in jail only three or four times with the longest visit being 20 to 25 minutes. At the hearing conducted on appellant’s motion he additionally argued that material witnesses had not been subpoenaed, that he wanted a different attorney appointed for him, and that he wanted a continuance. The proof showed that the attorney was not related to the deputy sheriff; there were no material witnesses who should be subpoenaed; and the appellant, who has a long criminal record, was the principal cause of the personality conflict. The attorney stated that appellant had advised him that he wanted to represent himself. The appellant’s testimony regarding the length of time of the visits by the attorney was substantially different from that alleged in his handwritten petition as he testified that the total time was. only 25 minutes. He admitted, however, that he had also talked to the attorney prior to trial by telephone. The attorney, whom the judge termed “most capable” stated that he was as prepared as possible because he had contacted all of the witnesses suggested by appellant but none of them would be beneficial to the defense. He stated that he had spent hours going over the prosecutor’s file and did not know of any additional preparation to be conducted.

The trial court repeatedly advised appellant that he could either be represented by his court appointed attorney or represent himself. The appellant refused to make that choice, demanding that the court appoint him a néw attorney and grant him a continuance. At one point appellant stated that upon being granted a continuance, he would retain another attorney. However, after being reminded of his sworn affidavit of indigency he stated he wanted a continuance and the appointment of another attorney. The trial judge then ordered the trial to proceed with appellant representing himself and the appointed attorney sitting at the counsel table to advise him. The jury found appellant guilty on both charges and fixed his sentence at forty years for attempted rape and fifty years for kidnapping. The trial judge assessed the sentences consecutively. Jurisdiction is in this Court because of the length of the sentences. Rule 29 (1) (b). We affirm.

Appellant contends that the trial court erred in forcing him to represent himself and denying a continuance. We find no merit in the argument.

The trial judge did not abuse his discretion in refusing to appoint another attorney. Competent counsel had been appointed, the trial had been scheduled and the jury had been empaneled. Once these factors have occurred, the trial judge, in deciding whether to appoint a new attorney, must also consider the need for orderly court administration and the public’s interest in a suitably prompt trial. Appellant was thoroughly acquainted with the court system, the nature of the charges against him and his rights. There is no indication he was incompetent. There was no valid reason given for dismissing appointed counsel. Very few, if any, defendants could be brought to trial against their will if a “personality conflict” with an appointed attorney was a valid cause for dismissal of an attorney. The trial court’s requirement that appellant either allow the appointed attorney to represent him or represent himself was proper under the circumstances. See Burton v. State, 260 Ark. 688, 543 S.W.2d 760 (1976).

Similarly, the question of whether a continuance should be granted is a matter of the trial judge’s discretion. Golden v. State, 265 Ark. 99, 576 S.W.2d 955 (1979). The burden is on the appellant to show there has been an abuse of that discretion. Cotton v. State, 265 Ark. 375, 578 S.W.2d 235 (1979). Certainly, every denial of a request for more time does not violate due process or constitutional mandates. Ungar v. Sarafite, 376 U.S. 575 (1964). There are no simple mechanical tests for testing the trial judge’s exercise of discretion. An examination must be made of the facts of each case. Here, an attorney was supplied for appellant because of his indigency. He then asked for a continuance to retain an unnamed attorney. Upon being reminded of his sworn affidavit of indigency he asked for appointment of a different, but still unnamed, attorney. Yet, there was no reason to appoint a new attorney. The alleged relationship of his appointed attorney and a deputy sheriff proved to be false. Appellant could remember the name of only one of the alleged material witnesses who had not been subpoenaed, and a so-called alibi witness was contacted by telephone but was unable to testify to appellant’s location on the date of the crime. The court had appointed a competent attorney, skilled in the practice of criminal law, to defend. The request for new counsel may have been made solely for the purpose of obtaining a continuance. It was not made until the panel of petit jurors was waiting in the courtroom. Against this factual background we cannot say the trial court abused its discretion in denying the motion for a continuance.

Appellant contends that the trial court erred in instructing the jury to fix punishment under the habitual offender statute in effect on the date of the commission of the crime rather than the one in effect on the date of the trial. The trial court was correct. Punishment is prescribed by substantive rather than procedural law. Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981). The substantive law to be applied is the law in effect on the date of the commission of the crime. Smith v. State, 277 Ark. 64, 639 S.W.2d 348 (1982).

Appellant’s next argument is that the trial court committed error in refusing to grant a mistrial when a witness stated that the appellant had previously been in prison. During appellant’s cross-examination of a State’s witness the following took place:

A. You came — some guy brought you and you called from a apartments, the Robindale Apartments.
Q. Robindale Apartments?
A. That’s right you called.
Q. Do you remember what I was doing at Robindale Apartments?
A. Yes, you went there becuase you had the address of a girl that I had gave you when you was in the penitentiary.
BY MR. BERRY:
Objection, Your Honor, I ask for a mistrial.
BY THE COURT:
Overruled. You’re the one asking the questions.
BY MR. BERRY:
I asked for the address and no more.
BY THE COURT:
You asked what he was doing there. Overruled. Go ahead.

Later appellant recalled the same person as his own witness. The witness testified that a photograph used to identify appellant was taken when the two were together at F.C.I. On cross-examination by the State the witness stated that F.C.I. means “federal correctional institution.” Appellant contends that the court again erred in refusing to grant a mistrial.

Appellant personally conducted the witness examination. He knew that he had served part of a sentence in a correctional institution with the witness. Yet, in both instances, he opened up the line of questioning which invited the response given. One who opens up a line of questioning or is responsible for error should not be heard to complain of that for which he was responsible. Kaestel v. State, 274 Ark. 550, 626 S.W.2d 940 (1982). In addition, the trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial and we do not reverse except for an abuse of that discretion or manifest prejudice to the complaining party. Hill v. State, Tib Ark. 71, 628 S. W.2d 285 (1982). The trial court did not abuse its discretion in refusing to grant a mistrial.

Appellant next contends the evidence is insufficient to support the verdict of guilty for attempted rape. He argues that a person commits a criminal attempt of a crime only when he engages in conduct which constitutes a substantial step in a course intended to culminate in the commission of an offense. See Ark. Stat. Ann. § 41-701 (Repl. 1977). He contends that there was no touching in this case and therefore there was no substantial step toward the commission of the crime of rape.

The appellant had two women in his car. They were on a gravel road in a rural area of Miller County. Appellant pulled a knife from his boot and told the two women he would not hurt them if they behaved. He stated, “I’m just going to take you out in the woods and... [have intercourse with] both of you.” The women pleaded for him not to hurt them but he responded, “If you don’t shut up I am going to hurt you.” With the knife in his hand he told them to take their clothes off. The women took their clothes off and he directed them to put their outer clothes back on and put their underclothing under the car seat. Appellant then forced the women to walk into the woods. After a struggle they escaped. This testimony is more than sufficient for the jury to find that appellant had taken a substantial step intended to culminate in the offense of rape.

Appellant finally contends that the verdict forms were improper and that the conviction for both rape and kidnapping constitutes double jeopardy. However, neither issue was raised below.

In Ply v. State, 270 Ark. 554, 606 S.W.2d 556 (1980), we refused to consider an assertion of error in a verdict form raised for the first time on appeal. There we stated as follows:

[A] defendant could raise an objection to the verdict form at the time the verdict is rendered, at the time of sentencing or by motion for new trial. We made it quite clear in Goodwin [v. State, 263 Ark. 856, 568 S.W.2d 3 (1978)] that we would not thereafter consider an assertion of error in a verdict form that had not been raised in the trial court, in some manner, without adequate reason for the failure being shown.

Ply v. State, 270 Ark. at 560.

Likewise, the issue of double jeopardy was not raised at the trial level. In Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), we stated that we do not consider this issue when raised for the first time on appeal except in death cases. Therefore, we do not consider the arguments about the verdict form and double jeoprady.

Affirmed.


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

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY v. RIVERSIDE MARINE REMANUFACTURING, INC.
    82-230
    647 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered March 14, 1983

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

      Howell, Price & Trice, P.A., by: Dale Price, for appellee.
   Steele Hays, Justice.

This appeal arises over the subrogation rights of an insurance company against a third party tort-feasor who was brought into an action between the insurance company and its insured. Farm Bureau insured a 1979 Cadillac belonging to Riverside Marine Remanufacturing Company, Inc., against loss by collision. The car was damaged in a collision with Ms. Rukmini Patel and when Riverside and Farm Bureau were unable to agree on the amount of the damage, Riverside sued Farm Bureau, which brought in Patel as a third party defendant, asking for judgment over against her for any amounts it might be required to pay Riverside under the policy. At the conclusion of Riverside’s case, and over its objection, the trial court permitted Farm Bureau to confess judgment for $4,084.52. At the same time, Farm Bureau moved that it be granted a judgment of $4,084.52 on its third party complaint from any damages awarded by the jury against Patel, which the trial judge indicated in conference he would grant. The motion, however, was never ruled on. Patel admitted liability and the jury assessed damages against her in the amount of $6,000.00. The trial judge then entered judgment in favor of Riverside for $6,000.00 against Patel and also entered judgment for Riverside against Farm Bureau for the amount confessed, i.e. $4,084.52 plus the vandalism loss.

Subsequently, the Farm Bureau moved to amend the judgment to allow it to recover its subrogation claim of $4,084.52, but that motion was denied. Patel has deposited the $6,000.00 into the registry of the court pending the outcome of this appeal by Farm Bureau, which asks that we reverse the trial court’s refusal to permit recovery under its subrogation rights. There is no cross appeal. We agree that Farm Bureau is entitled to recover $4,084.52 from the amount paid by Patel and, accordingly, we reverse the trial court.

It is the general rule that an automobile insurer who has paid a claim under its policy caused by the negligence of a third person is entitled to be reimbursed by the insured from any recovery against the third party. See 7A Am. Jur. 2d, Automobile Insurance § 441. This same right of subrogation is well recognized in Arkansas. See Home Insurance Co. v. Lack, 196 Ark. 888, 120 S.W.2d 355 (1938), and see generally Shipley v. Northwestern Mutual, 244 Ark. 1159, 428 S.W.2d 268 (1968). The underlying principle of subrogation rights is to avoid double recovery. As we stated in Shipley. “[T]he object of subrogation is to prevent the insured from recovering twice for one harm as would be the case if he could recover from both the insurer and from the third person who caused the harm...” Here, Riverside claimed compensation under the policy for damages to its car, and amended its complaint to request compensation of $5,000.00 for loss of use. Under the facts it is arguable that Riverside received damages to its property from the insurer, Farm Bureau, and that the damges from Patel were exclusively for loss of use, which loss was not covered by the policy. But the court’s instructions to the jury told them to consider the fair market value of the Cadillac immediately before and after the collision, as well as loss of use, in fixing the damages. Moreover, the trial judge in his memorandum opinion does not base his decision on this point, nor does Riverside raise this argument, but instead bases its contention on two technical arguments which we discuss further on.

Another important element in our consideration is our recent adoption of the Arkansas Rules of Civil Procedure, under which Rule 14 — Third Party Practice — was liberalized to allow a defendant to bring in a person not a party to the action who “is or may be liable to him for all or part of the plaintiff’s claim against him.” The Reporter’s Notes to Rule 14 state that the purpose of Rule 14 as construed by the federal courts is to facilitate the trial of multiple claims which would otherwise be triable only in separate proceedings. We stated our agreement with that purpose in Aclin Ford Co. v. Fiat Motors of North America, 275 Ark. 445, 651 S.W.2d 283 (1982): “Generally the purpose of this rule is to settle all controversies at one time, thereby avoiding a multiplicity of suits.” In Home Insurance Company v. Moro, Inc., 253 Ark. 305, 485 S.W.2d 736 (1972), we recognized the liberal effect of Rule 14 in a decision reached before our adoption of the Arkansas Rules of Civil Procedure.

On the facts of this case and applying the basic principles discussed above, we can find no reason for the court below not to have granted Farm Bureau’s motion for judgment on its third party complaint, and no reason to deny its motion to amend the judgment. In a memorandum opinion the trial judge stated that if he were to allow the judgment to be amended for judgment over against Patel by Farm Bureau, it would also be necessary that the pleadings be amended after the trial and after the judgment had been entered. But we think the pleadings, though inaptly drawn, sufficiently apprised the opposing parties that Farm Bureau was seeking subrogation. Certainly, no one claimed to have been surprised or misled by the pleadings of Farm Bureau. See Bates v. Simmons, 259 Ark. 657, 536 S.W.2d 292 (1976). Because the motion had been made prior to judgment and was not ruled on, the appellee had no recourse but to make a motion after judgment. Farm Bureau had brought in the third party Patel, under Rule 14, and under the subrogation principles discussed above, Farm Bureau’s motion should have been granted. To do otherwise not only ignores the basic principle of subrogation, but undermines the purpose of Rule 14 to promote judicial economy and avoid multiplicity of suits.

Riverside makes two arguments that we are unable to sustain. It first argues that Farm Bureau in its pleadings sought no relief against appellee. But Farm Bureau under this fact situation has no need to seek relief from the insured because under the normal course of things, it is expecting reimbursement from the tort-feasor. To suggest that Farm Bureau should include an action against appellee in its pleadings, would require it to anticipate such an error by the court as was made here.

Riverside also contends that under Ark. Stat. Ann. § 29-303 (Repl. 1979), there is no appeal from a confession of judgment and all errors are waived. After Farm Bureau’s confession of judgment, it was dismissed from the case in regard to its claim against appellee, but the confessed judgment did not dismiss Farm Bureau from its rights of subrogation against the third party, Patel. Of course Farm Bureau is estopped from denying the correctness of the confessed judgment, but that clearly does not preclude it from pursuing other claims in an action with multiple parties to which it is entitled, and to which no confession of judgment has been made.

We find the judgment to be in error and we remand the case for the entry of a judgment consistent with this opinion.

Adkisson, C.J., and Purtle, J., dissent.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion from the first sentence to the end of the opinion. This is not a subrogation action at all. Appellee’s automobile was involved in a collision with a third party. The insured was unable to agree with the appellant insurer on the amount of the loss under the terms of its policy. Appellee brought suit against appellant for collision damages plus penalties, interest, attorney’s fees and costs. Subsequently the insured found there had been vandalism damage to the vehicle. The vandalism occurred at a body shop where the vehicle was stored for pending repairs. The complaint was amended to seek judgment in the amount of $11,117.36 for damages to the vehicle. The insurer filed a third party complaint in which it sought to recover judgment against the third party in any amount which appellee might obtain against the appellant. A third party complaint by appellant was brought pursuant to Ark. Stat. Ann. § 34-1001 (Repl. 1962) et seq. which is the Uniform Contribution Among Tortfeasors Act. Thereafter, the appellee filed an amendment to the complaint wherein it sought to recover the sum of $5,000 for loss of use of the automobile. At the time the case went to trial appellee’s claim was for $16,117.36 against the appellant and the joint tortfeasor, jointly and severally.

Farm Bureau was allowed to confess judgment in the amount of $4,084.52. Although the trial court indicated that appellant would be allowed to have judgment against the third party tortfeasor, such was never allowed. The jury assessed damages against the third party in the amount of $6,000. Appellant had been allowed to increase its confessed judgment by $1,297.88 which brought the total to $5,382.40. Appellant’s motion for an amendment of the judgment and to amend the pleadings to conform to the proof was denied. So far as the record is concerned the appellant has not paid out any money to its insured at this time. Therefore, there could have been no subrogation claim. The total judgment against appellant and the third party amounted to $ 11,382.40. This was almost $5,000 less than the amount sued for. When the appellant confessed judgment it had no standing to appeal. Appellant never sought subrogation until after the judgment was rendered. In the case of Cave v. Smith, 101 Ark. 348, 142 S.W. 508 (1912), we stated:

A party confessing judgment is estopped by his own voluntary act from questioning its correctness.

This statement still expresses the law as it relates to confession of judgment.

Prior to trial the subject of subrogation was never mentioned. At the last minute the appellant confessed judgment in an apparent effort to avoid any penalty, interest or attorney’s fees. It is obvious that the jury was attempting to make up the difference in appellant’s damages by granting a judgment against the third party in an amount which, when combined with the confessed judgment, would equal its loss. The majority opinion correctly quotes the law as it relates to subrogation claims. However, the action here was no more of a subrogation than it was a workers’ compensation claim. I think the trial court should be affirmed. In the alternative I would remand for a new trial because this one is rather fouled up as evidenced by the majority opinion.

I am authorized to say that Chief Justice Adkisson joins me in this dissent.

      An additional amount of $1,297.98 for a vandalism loss was also confessed but is not an issue.

      An exception to this rule exists when the insured’s claim against the tort-feasor is not co-extensive with his claim against the insurer.