text:
    ARKANSAS ALCOHOLIC BEVERAGE CONTROL BOARD v. Edward William KING, d/b/a THE PIONEER CLUB, INC.
    81-237
    629 S.W. 2d 288
    Supreme Court of Arkansas
    Opinion delivered March 15, 1982

      Treeca J. Dyer, for appellant.

      Sam Hilburn, for appellee.

      William H. Sutton, of Friday, Eldredge & Clark, for amicus curiae P.E.O.P.L.E.
   Frank Holt, Justice.

The appellee applied to the Director of the Arkansas Alcoholic Beverage Control Board (ABC) for a private club permit which permits on premises consumption of alcoholic beverages as provided in Ark. Stat. Ann. § 48-1410 (Repl. 1977). The application was denied. The appellant Board affirmed the decision of the Director. Appellee sought a review of the Board’s decision pursuant to the Administrative Procedures Act, Ark. Stat. Ann. § 5-701 et seq. (Supp. 1981). The trial court reversed the Board’s decision, stating ‘‘[t]he question to be decided by the Board is whether the public convenience and advantage would not be hampered by the granting of the permit.” The court also found that the Board did not make “its decision based upon public convenience or advantage and the decision is not supported by substantial evidence of record,” relying upon Snyder v. ABC, 1 Ark. App. 92, 613 S.W. 2d 126 (1981). Hence this appeal. For reversal the Board contends that its decision was supported by substantial evidence, was not arbitrary or capricious nor was it an abuse of the power granted to it and the purpose of the club does not qualify it as a private club within the meaning of the statute. We agree with the appellant and reinstate the Board’s decision denying the appellee a permit.

The burden is on the applicant to show that he is “qualified” to hold the permit and issuance of the permit is “in the public interest” whereupon the Board “may” issue the permit. § 48-1410 (b) (1). See Gray’s Butane v. Ark. Liq. Pet. Gas Bd., 250 Ark. 69, 463 S.W. 2d 639 (1971).

We feel that the trial court’s reliance on Snyder is misplaced. In Snyder, the application was for a retail liquor license in a wet county permitting the sale of alcoholic beverages for off-premises consumption based on public “convenience and advantage.” Ark. Stat. Ann. § 48-301 (Repl. 1977). The applicant already possessed a retail beer license. Here, we have an application for a private club permit in a dry county which would allow on-premises dispensing of mixed drinks as being “in the public interest.” § 48-1410 (b) (1). In Snyder the applicant was found to be qualified by the Board. Here, the applicant was found not to be qualified. As indicated, there a different statute was under consideration than here.

Here, at the conclusion of the hearing, the Board made the following findings, inter alia, and denied the permit:

3. That the proposed club would be next door to a roller skating rink that is patronized chiefly by young children and the club would be a detrimental influence on large numbers of children in the area.
4. The proposed club is not organized for a charitable or non profit purpose as outlined by Arkansas Statutes Annotated § 48-1402 (j) and would have no other purpose other than the consumption of alcoholic beverages . . .

When reviewing administrative decisions, we review the entire record to determine whether there is any substantial evidence to support the administrative agency’s decision, or was there arbitrary and capricious action, or was it characterized by abuse of discretion. Citizens Bank v. Ark. State Banking Board, 271 Ark. 703, 610 S.W. 2d 257 (1981); Ark. Real Estate Comm’n v. Harrison, 266 Ark. 339, 585 S.W. 2d 34 (1979); Arkadelphia Fed’l S&L v. Mid-South S&L, 265 Ark. 860, 581 S.W. 2d 345 (1979); and Administrative Procedures Act, Ark. Stat. Ann. § 5-713 (h) (Supp. 1981).

As we stated in Terrell Gordon v. Gordon L. Cummings et al, 262 Ark. 737, 561 S.W. 2d 285 (1978):

It is well settled that administrative agencies are better equipped than courts, by specialization, insight through experience and more flexible procedures to determine and analyze underlying legal issues; and this may be especially true where such issues may be wrought up in a contest between opposing forces in a highly charged atmosphere. This recognition has been asserted, as perhaps, the principal basis for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency.

Here, a recreational facility, a skating rink, is adjacent to appellee’s restaurant which he seeks to convert, at least in part, into the proposed private club. According to the owner of the roller rink, it is patronized by a large number of children. On Friday and Saturday nights the roller rink attendance ranges from two to four hundred. Private parties for nursery school, kindergarten, and a boy’s club are held at the rink. Attendance ranges from fifteen hundred to two thousand children per week from the first of the year until May. Although most of the children are picked up at the premises by their parents, many of them walk home from the skating rink. “[T]here is still kids on the street, on the road crossing the front of [appellee’s] establishment and it is a danger to them”. “[P]eople leaving that club, who has had two or three drinks, would endanger the lives of these kids.” We hold the Board’s finding No. 3 was neither arbitrary, capricious or characterized by an abuse of discretion and is supported by substantial evidence.

With respect to the appellee being a qualified applicant for a permit, he testified that it would be operated on a nonprofit basis and the purpose of the club was:

Well, over the period of 14 years I have been in the restaurant business, I’ve had many many hundreds of people at my restaurant that I might say complained because they didn’t have the privilege... of having beer with their food, and so after a period of time I began to give it some consideration. I have tried to explore any way possible that I could serve drinks with my food. There was no way in a dry county. I eventually came up with the idea of a private club . . . Well you might say social gathering for people to come to, to enjoy food with a drink ...

A witness testifying in support of appellee’s application stated that there was only one private club in the dry county where one could “buy mixed drinks” and that many people could not afford a membership. However, the cost would be affordable in appellee’s proposed private club. The private club charter, which appellee purchased from another source, recites the words of the statute (§ 48-1402 [j]) as to the required purpose. However, if we should hold that the mere compliance with the statute for the existence of the charter was sufficient to entitle the applicant to a mixed drink permit, then the Board has no discretionary powers and, therefore there is no need for the Board. We hold that the Board has not abused its discretion and its finding No. 4 is supported by substantial evidence.

Reversed and remanded with directions to reinstate the decision of the Board.

Reversed and remanded.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Billy Joe EDGEMON v. STATE of Arkansas
    CR 81-110
    630 S.W. 2d 26
    Supreme Court of Arkansas
    Opinion delivered March 15, 1982
    [Rehearing denied April 19, 1982.]

      William C. McArthur, for appellant.

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

Billy Joe Edgemon was convicted of first degree murder of Jimmy McCormick and sentenced to life imprisonment and a $10,000.00 fine.

His chief argument is that the court erroneously admitted evidence that Edgemon was involved in a stolen car ring. The State argued that the evidence was necessary to show that Edgemon had a motive to kill McCormick. We find that the trial court was correct in admitting the evidence because the State clearly demonstrated that evidence to be an inseparable part of the case, and probative of Edgemon’s motive to kill McCormick.

The State’s case was circumstantial, there being no eyewitness to the killing and no admission by Edgemon. Edgemon lived alone outside Altus in Franklin County on a farm where he raised hogs. During the summer and fall of 1979 Jimmy McCormick stayed with Edgemon and helped him on the farm. At that time Edgemon was in the process of divorcing his second wife and had no relatives living with him on a regular basis.

On the evening of the 14th of January, 1980, Edgemon and McCormick drove to nearby Coal Hill in a yellow 1979 International Scout to see two women: Suzie Johnson, who was McCormick’s girl friend, and a woman named Rosetta Wilson. All four returned to Edgemon’s place, stayed a few hours, and then McCormick and the two women left. McCormick dropped the women off at home. Several hours later he returned to Suzie Johnson’s house and said he had wrecked the Scout. He spent the night. The focus of the case is on what happened the next day, the 15th of January.

Suzie Johnson testified that Edgemon came by her house three times. The first time she did not answer the door. When Edgemon returned later, she gave him the keys to the Scout and said McCormick had wrecked it. McCormick did not come to the door. Edgemon left again and returned about six or seven p.m. Johnson said McCormick told Edgemon that he had hidden the tags to the Scout in the woods. Edgemon and McCormick left together and McCormick was not seen alive again by any witness.

Robert Dale Pyron, an acquaintance of Edgemon, testified he was with Edgemon on the 15th. Pyron said he had seen a Scout like Edgemon’s being towed by a wrecker that morning. He found Edgemon and they went to the wrecker yard. They saw that the Scout was Edgemon’s, but they did not retrieve it. Pyron said Edgemon expressed concern about whether his keys were in the Scout and whether the tags were still on it. They went to talk to Don Holloway, who said they had better get the keys and the tags. Edgemon and Pyron went to Suzie Johnson’s where Edgemon got the keys. While en route to Edgemon’s place Edgemon told Pyron to throw the key to the Scout out the window, which he did. According to Pyron Edgemon made several statements about McCormick, one of which was that he thought Suzie Johnson was hiding McCormick. He also said that “. . . it would be one less burden on the world if Jimmy weren’t around.” At another time he said, “ ... if Jimmy came back over to his house he’d kill him.” Pyron said that Edgemon told him to deny any knowledge if he was questioned by the police about the Scout.

McCormick’s body was found on the 23rd of January, in a culvert on a county road. He had been killed with a shotgun blast and had been dead seven or eight days. Across the road the officers found a piece of carpet and a bloody mattress which contained pellets from a shotgun. The mattress was covered with a design of bicentennial emblems. A calendar wristwatch on McCormick was stopped between the 15th and 16th of January.

The police questioned Edgemon that day about the killing. He said McCormick had left his home on the 15th and that he had not seen him since. He denied any other knowledge and was released. The following day Edgemon drove a 1979 Cougar XR-7, which had been in his possession, into a mining pit that was filled with water.

On the 25th of January, the police searched Edgemon’s home. They found what appeared to be blood stains on a piece of carpet, coffee table, and another piece of furniture. These items were all located in front of the fireplace. Two shotguns were seized, one of which was a twelve gauge Marlin loaded with Magnum western shells, number four shot. A North Carolina license plate was also seized.

The State recovered the Cougar and proved that it and the Scout were stolen. The license on the Scout was registered to Dorothy Reynolds, Edgemon’s second wife, but the tag belonged on a 1980 Lincoln Continental. The North Carolina tags found at Edgemon’s house belonged on the Cougar. A deputy sheriff testified that Edgemon had told him the Scout was his. There was testimony that the Cougar had been seen regularly parked at Edgemon’s.

Two witnesses testified that the mattress found near McCormick’s body was just like a mattress or mattresses that had been at Edgemon’s. One witness, Charles Montgomery, who had stayed at Edgemon’s for a month with McCormick, said he and McCormick had each slept on such a mattress in front of the fireplace.

Edgemon told the police that the blood on the carpet piece and furniture was from a cut on his foot. An expert testified, however, that the blood on those articles was type A positive. Edgemon had type B positive blood. Another expert testified that the shot and wadding taken from McCormick’s body was consistent with that contained in the shotgun shells found in one of the shotguns seized at Edgemon’s.

The testimony objected to on appeal which implicated Edgemon in several car thefts came from Charles Montgomery and a North Carolina police officer. Montgomery was serving a prison sentence for theft when he testified. He testified that he stayed at Edgemon’s about a month in the summer of 1979. He said that he, McCormick, Edgemon and Edgemon’s son Mark, and Don Holloway planned to set up a car theft ring. He, McCormick, and Mark, working out of Edgemon’s farm, would steal the vehicles and Don Holloway would provide the titles.

He said he first met Edgemon when he sold him a stolen 1979 Scout for $400.00; it was worth $8,900.00. Next he sold him a 1979 Chevrolet Caprice stolen in Louisiana for $400.00; it was worth $8,000.00. He stole a 1979 LTD station wagon worth $7,500.00, and said he gave it to Edgemon. Montgomery said he stole a 1979 Chevrolet pick-up truck in Kansas and used a title Edgemon had for a 1979 Chevrolet truck; he took the truck to North Carolina where he unwittingly sold it to a police “sting” operation. While there, he stole the 1979 Cougar XR-7 and drove it back to Arkansas. He said he gave the Cougar to Mark Edgemon to repay a debt of $135.00. He testified that Edgemon knew all these vehicles were stolen and it was their intention to set up a ring.

The North Carolina policeman testified that he bought the 1979 truck from Montgomery in an undercover “sting” operation and the title was in Mark Edgemon’s name.

Edgemon denied that he killed McCormick or actually knew that any of the vehicles were stolen. He admitted driving the Cougar into the mining pit but he said he did so because his son had driven the car and he did not want him implicated. He would never concede that he actually owned the Scout, but said he had merely loaned Montgomery $400.00 “on it.” He admitted driving it and acknowledged that the license on it belonged to one of his former wives. He said this same former wife drove off with the LTD because her car had broken down. He said someone stole the title that was found in the truck sold in the “sting” operation. According to Edgemon, Montgomery told him that he “stole” the Cougar from his own wife, and thus Edgemon did not believe it was actually stolen.

He admitted telling Pyron to throw away the key to the Scout, and said he did so only because he no longer needed it. He did not recall telling the deputy sheriff the Scout was his, or McCormick telling him he had hidden the tags to the Scout. He said McCormick brought the tags to the Scout home with him from Suzie Johnson’s and that they were taken by his former wife. He said he did not know how the North Carolina tags from the Cougar got into his house.

The State’s theory of the case was that Edgemon, deeply involved in these car thefts, became upset with McCormick when he wrecked the Scout because it had tags on it which could be traced to him and the key ring in the Scout contained his personal keys; that he killed McCormick to prevent discovery of his complicity in these crimes.

The defense’s objection to the evidence of the car theft scheme is based on Ark. Stat. Ann. § 28-1001, Rule 404 (b) (Repl. 1979), which reads:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Of course that is the general rule. Moser v. State, 266 Ark. 200, 583 S.W. 2d 15 (1979); Tarkington v. State, 250 Ark. 972, 469 S.W. 2d 93 (1971); Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954). Rut the rule itself says that such acts may be admissible for other purposes, and specifically mentions proving motive as one such purpose. 2 WEINSTEIN’S EVIDENCE, par. 404 [14].

In Price v. State, 268 Ark. 535, 597 S.W. 2d 598 (1980), we found that an accomplice’s testimony that implicated the defendant in other car thefts was not prejudicial error because it went to intent and corroborated the accomplice’s statement. In Dillon v. United States, 391 F. 2d 433 (10th Cir.1968) evidence that the defendant was a part of an abortion ring was admissible to show motivation to commit bribery, the charge against the defendant. In United States v. Haldeman, 559 F. 2d 31 (D.C. Cir. 1979), evidence of burglary of a psychiatrist’s office was admissible to show a motivation for the “Watergate cover-up.”

The State made a strong case that Edgemon and his family were inextricably involved with the stolen cars: Edgemon did not seek to recover the Scout after it was wrecked or notify anyone it was his; there is evidence he tried to conceal any link that existed between him and the Scout and the Cougar; he made several incriminating statements, one of which suggested that McCormick’s death would be no great loss. The evidence of the stolen vehicles, and his involvement with them, was relevant to whether he had a reason to kill McCormick.

Edgemon’s other arguments only merit mention. The day before the trial actually began an attempt was made to assassinate President Reagan. The defense made a motion the next day for a mistrial or a continuance because of the inflammatory nature of the incident and its effect on the jury. The appellant cites no direct authority for his position but argues that a defendant cannot get a fair trial in such an atmosphere. There was no evidence offered to support the motions, nor was the jury voir dired. There is no precedent that court proceedings must cease because of a tragic incident involving a national figure. We will not presume that juries will fail in their sworn duty. Prejudice will not be presumed. Russell v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977). We cannot say the judge’s decision to deny these motions was an abuse of discretion. McCree v. State, 266 Ark. 465, 585 S.W. 2d 938 (1979); Mays v. State, 264 Ark. 353, 571 S.W. 2d 429 (1978).

The appellant had a school superintendent, who was a frequent hunter, conduct a test by firing a shotgun at a small mattress. When the judge denied the admissibility of the evidence, Edgemon proffered the testimony of this witness to show that a shotgun fired at close range, would send the shot totally through the mattress. There was no evidence that any of the shot went completely through the mattress found near McCormick’s body. Naturally, the results would have been different in a test where a shotgun was merely fired at a mattress and one where the shot went through a body on a mattress. Also, the gun used in the test was not the same as the one the State claimed did the deed, nor was the distance verified to be the same. The admissibility of such evidence is a discretionary matter and we cannot say the court abused its discretion. Hamblin v. State, 268 Ark. 497, 597 S.W. 2d 589 (1980); Houston v. State, 165 Ark. 294, 264 S.W. 869 (1924).

The argument that the evidence against the appellant is insufficient is essentially answered in our recitation of the facts. We have examined the transcript for other errors as we are required to do, and, finding none that would require reversal, affirm the judgment.

Affirmed.


text:
    Leon DILLARD v. STATE of Arkansas
    CR 81-118
    629 S.W. 2d 291
    Supreme Court of Arkansas
    Opinion delivered March 15, 1982

      Wayne R. Williams, of Williams ir Williams, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The narrow issue in this case is whether the appellant waived his right to a lawyer before he gave an incriminating statement. Leon Dillard, the appellant and city treasurer of Glenwood, Arkansas, was suspected of stealing city funds. On February 28, 1980, several law enforcement officials met with Dillard and informed him that he was suspected of theft. He signed a form acknowledging that he had received the Miranda warnings and later signed a statement admitting, “I have taken some money, but I also believe that some money is missing in which I have had no part. . . Amount of money that I took that I remember is about $3,000.00.”

Dillard was convicted and on appeal challenges the trial court’s finding that his statement was admissible. He cites Miranda v. Arizona, 384 U.S. 436 (1966) and Edwards v, Arizona, 451 U.S. 477 (1981) as controlling.

The prosecuting attorney’s investigator, Joe White, and the sheriff were present when Dillard made his statement. They both conceded that Dillard said he wanted a lawyer when informed of his rights. But both insisted that Dillard continued the conversation, asking them questions, and, thus, waived hjs right to counsel. The exact testimony is important,

White testified:

... I told him then that his rights statement that he signed was not a waiver of his rights. I had to ask him the question, ‘Did he want to talk to us?’ And he said, ‘Well, I better get a lawyer.’ I said, ‘Fine. You need to go get a lawyer.’ And he said, ‘But I want to know what this is all about.’ We told him there was some money missing at Glenwood, and he continued the conversation. We told him then, again; in fact, he was told several times he shouldn’t say any more if he was going to get a lawyer to leave, but he continued his conversation. We didn’t feel like that we were obligated to run off ourself. [Emphasis added.]
Q. All right.
A. But after he said he was going to get a lawyer, he himself waived again and said, ‘Well, I will talk to you without one right now, and I can quit when I want to.'
The sheriff testified:
Q. What was done by you and Mr. White and anybody else that might have been there at that time about that; what was said about that, if you remember?
A. If I recall the conversation, I believe you were present at that time; and if I recall your statement that possibly he might ought to go ahead and get an attorney.
Q. Did he choose to do it?
A. Well, he continued to ask questions of us, you know, at that time.
Q. Did he then proceed to make a voluntary statement without being interrogated any further?
A. Sure did.
Q. In other words, after he mentioned that he thought that he might should talk to an attorney, was there any interrogation as such continued — that continued?
A. There might have been some questions asked, but I don’t recall if there was.
Q. Well, you already testified that after he indicated that he might should talk to a lawyer that he was told that he probably should?
A. I know that he had asked some questions, and we tried to provide answers for them, and we may have asked some questions, but I don’t recall.
Q. At any rate, after he indicated that he thought maybe he should talk to a lawyer, he was given every opportunity to do so; is that correct?
A. Yes, sir.

Edwards v. Arizona, supra, held that once a suspect requests counsel, questioning must cease and cannot be reinitiated by the police. Therefore, the question is whether the police initiated the further questioning or was the conversation begun by Dillard; in other words, what action amounts to “interrogation” by the police after a suspect has requested counsel? See Rhode Island v. McInnis, 446 U.S. 291 (1980). Undoubtedly it is purely a fact question in some instances, as it is in this case. On appeal we review such matters independently, considering the totality of the circumstances and do not reverse the trial court unless the ruling was clearly erroneous. Coble v. State, 274 Ark. 134, 624 S.W. 2d 421 (1981). On the record in this case we cannot reverse the finding.

The appellant in passing argues that two other statements given by Dillard used to impeach him were tainted because they were a result of his first statement. Those two statements were given without a prior Miranda warning. Harris v. New York, 401 U.S. 222 (1971) held that statements which are given voluntarily but without a prior Miranda warning can be used to impeach the credibility of a defendant who testifies in his own behalf.

Affirmed.


author: John I. Purtle, Justice.

text:
    FRANK A. ROGERS & COMPANY, INC. et al v. Honorable Perry V. WHITMORE, Judge, Pulaski County Circuit Court, Second Division
    81-235
    629 S.W. 2d 293
    Supreme Court of Arkansas
    Opinion delivered March 15, 1982

      Gill, Skokos, Simpson, Buford ir Owen, for petitioners.

      Steve Clark, Atty. Gen., by: Rodney E. Slater, Asst. Atty. Gen., and Rose Law Firm, for respondent.
   John I. Purtle, Justice.

This is an original action in this court for a writ of prohibition to the Circuit Court of Pulaski County (Second Division) to prohibit the court from trying Case No. 79-3815. Petitioners argue the respondent has neither jurisdiction nor venue to try this cause of action contending Ark. Stat. Ann. § 27-601 (Repl. 1979) requires the action to be brought in Crittenden County. We disagree and deny the writ.

Petitioners are all defendants in the Pulaski County Circuit Court, Case No. 79-3815. They were sued in Pulaski County in both tort and contract. The suit arose from contracts for construction and the alleged faulty construction of a parking lot in Crittenden County, Arkansas. Petitioner Rogers was the general contractor for the plaintiff, RA-RPM and RPM Realty Fund, in the suit presently pending in the Pulaski County Circuit Court. The other petitioners were subcontractors on the project. The shopping center parking lot was completed in Crittenden County in October 1974. Shortly thereafter, the plaintiffs allege that the lot began to deteriorate and that it was unfit for its intended use. The complaint for damages included negligent design, improper drainage, inadequate paving, failure to do the work in the proper manner and negligent supervision. The complaint was amended for the fourth time on August 17, 1981, and thereafter the petitioners challenged the jurisdiction of the court. The original complaint and the three amended complaints had been answered and no question of venue had been presented until the fourth amended complaint.

If this case involved primarily damage to real estate then venue would properly lie in Crittenden County pursuant to Ark. Stat. Ann. § 27-601. However, the allegation of damage and prayer for relief shows that the real action in the case is on contract. The plaintiff properly sued in Pulaski County because at least one of the defendants was a resident of Pulaski County. Ark. Stat. Ann. § 27-613 (Repl. 1979). We treated a question almost on all fours recently in Atkins Pickle Co. v. Burrough-Uerling-Brasuell, Consulting Engrs., Inc., 275 Ark. 135, 628 S. W. 2d 9 (1982). In Atkins the complaint alleged that the action arose out of damage to real estate and therefore was required to be brought in the county where the real estate was situated. We think the same reasoning as applied in A tkins applies here inasmuch as the object of the petitioners’ defense is to defend against allegations of damages for breach of contract. In Atkins we stated:

Under the allegations of the complaint the plaintiff cannot establish its right to recover except by proving a contract and the defendants’ fáilure to perform their promises. That one of several consequences of that failure was a physical damage to land is merely an incident to the plaintiff’s cause of action, not the basis for it. Thus the substance of the complaint states a transitory cause of action, not a local one.

We think the trial court was correct in ruling that Pulaski County was the proper venue for this cause of action. This action could have been brought in Pulaski county pursuant to our general venue statute, Ark. Stat. Ann. § 27-613 or under Ark. Stat. Ann. § 27-621 (Repl. 1979).

Writ denied.

Hays, J., not participating.


text:
    Al YOUNGER et al v. THOMAS INTERNATIONAL CORPORATION
    81-247
    629 S.W. 2d 294
    Supreme Court of Arkansas
    Opinion delivered March 15, 1982

      James D. Causey, Memphis, Tenn., and Frierson, Walker, Snellgrove ir Laser, by: G. D. Walker, for appellants.

      Sharpe ir Morledge, P.A., by: W. Frank Morledge; and Arnstein, Gluck ir Lehr, Chicago, 111., by: Arthur L. Klein, Richard K. Wray, and Philip J. Nathanson, for appellee.
   John I. Purtle, Justice.

The trial court rejected the claim of certain former Warwick salaried employees in a class action for termination benefits pursuant to an agreement between Warwick and the salaried employees. On appeal the appellants argue the trial court erred because: (1) the severance pay policy of Warwick became a binding unilateral contract; (2) the ownership change amounted to the closing of an organizational unit for severance pay purposes; (3) subsequent positions offered to the appellants were not equivalent; (4) interpretations at a variance to written policy were invalid; (5) appellants were entitled to severance pay; (6) appellants were entitled to two weeks compensation in lieu of notice of termination; and, (7) appellants should be reimbursed for expenses caused by appellee’s designation of unnecessary material in the transcript. The appellee replied to each point, and additionally argued that fundamental principles of fairness prohibited the appellants from reaping windfall benefits. We find that the trial court’s judgment should be upheld.

The facts are generally undisputed and the appeal centers on the interpretation of the contract between Warwick and the salaried employees. The essence of the contract is as follows:

I. STATEMENT:
A. Purpose.
The purpose of termination allowance is to provide financial assistance for a short period of time to allow for readjustment for salaried employees who are terminated through no fault of their own.
B. Eligibility
The following circumstances result in termination allowance eligibility for permanent full time employees:
1. Termination resulting from closing an organizational unit.
2. Termination resulting from job elimination or manpower reductions.
3. Terminations resulting from special circumstances, as determined by members of the President’s staff and approved by the Director of Personnel.
Employees who have received formal notice of termination, and later resign voluntarily, are eligible for termination allowance, provided they give at least two weeks notice. Those who have not been given formal notice of termination are not eligible for termination allowance if they resign voluntarily.
C. # # #
D. Pay in Lieu of Notice
Every effort should be made to give the employee two weeks notice prior to termination. Where this is not possible, he will be granted two weeks pay in lieu of notice. This is in addition to termination allowance and accrued vacation.
E. * * *
j? # # #
G. Effect of Job Placement Opportunities
Termination allowance will not be paid when an employee is offered an equivalent job opportunity.
For purposes of this policy, an “equivalent job opportunity” must meet all of the following conditions:
1. No relocation required.
2. No significant reduction in status. A reduction of more than one salary grade will be considered significant, and in some instances a change from exempt to non-exempt status or from salaried to hourly status, will also be considered significant.
3. Reasonable use made of employee’s background and experience.

Warwick had manufactured television sets at its Forrest City plant for a number of years but had fallen onto hard times financially. Employment had dwindled from a high of more than 2,500 to about 500 at the time the plant was sold to SMC. The effective date of the sale was December 29, 1976, during the Christmas holidays; when the employees returned to work on January 3, 1977, they were employees of SMC. All employees continued to work for SMC at the same or higher salaries than they had received from Warwick.

SMC did not have in force the same exact policies which existed at Warwick. However, approximately the same benefits were eventually adopted and made retroactive to the date of the transfer. In the meantime, Warwick changed its name to Thomas International Corporation. Thomas agreed to abide by the former Warwick policies for the benefit of any SMC employees who were terminated prior to implementation of equivalent policies by SMC. The record does not reveal whether any employees were actually paid by Thomas.

The trial court held the employees had not been terminated in accordance with the terms of Warwick’s policy and were therefore not entitled to termination benefits. The court also held that those persons who had been transferred from other locations to the Forrest City SMC plant had been assisted in doing so by Warwick and had accepted new employment, thus were not entitled to termination allowances. Under Section G of the Warwick policies this amounted to a non-equivalent job opportunity. Finally, the court held that the new benefits offered by SMC were in some respects greater than those offered by Warwick and in some respects they were less. The court was unable to determine which set of policies was over-all in the best interest of the employees.

Much of the trial centered around whether the Warwick policies were communicated to the appellants. There is no need to belabor this point because the evidence clearly indicated the policies were communicated and that the employees accepted them. It is obvious the trial court found the policies binding. The question of termination is crucial to the resolution of this matter. Unless the appellants were terminated they would be entitled to neither termination allowances, nor to benefits in lieu of notice of termination. We think the purpose of the Warwick policies is succinctly defined in the first part of the policy, Section A, entitled “Purpose”:

The purpose of termination allowance is to provide financial assistance for a short period of time to allow for readjustment for salaried employees who are terminated through no fault of their own.

In the present case all employees continued to work at the same plant, manufacturing the same product, and doing the same or similar job. Each of them received at least the salary which they were receiving prior to the transfer from Warwick to SMC. It is difficult to envision a termination under the circumstances of this case. So far as the appellants are concerned, the only change of any significance was the name of their employer. In fact, SMC had been organized as a spin-off corporation from Warwick several months before it became the property of the present owners.

This matter has not been previously addressed in Arkansas. We are not unmindful of the need to protect employees who are terminated through no fault of their own. We are also aware of the fact that other jurisdictions have apparently treated this question in a different manner.

The appellants rely heavily upon the case of Dahl v. Brunswick Corporation, 277 Md. 471, 356 A. 2d 221 (1976). In the Dahl case the court held there was a termination when the business was taken over by a new owner and the employees continued working at the new plant. It does not appear that there was a purpose stated in the policies in the Dahl case, thus the Maryland court took the words of the policies at their literal meaning. We agree that the proper rule of construction in regard to ambiguous contracts is to construe them against the party that drafted them. In the Dahl case the policies did not define the meaning of termination. In the present case is it clear that the termination allowance was to provide financial assistance for former employees terminated through no fault of their own. There was no proof that any of the appellants needed the financial assistance for readjustment due to a period of unemployment.

The trial court held that the transfer from Warwick to SMC did not constitute the closing of an organizational unit within the meaning of the severance policy. Policy Provision B (1) states that closing an organizational unit amounts to termination. However, Section G of the policies states that termination will not be paid when an employee is offered an equivalent job opportunity. In determining whether this action constituted the closing of an organizational unit, the trial court considered both the policies as written and the history of the interpretation and implementation of the policies by those who had administered them. The testimony of Warwick officials was substantial and to the effect that when there had been merely a change in name and ownership, the policy had been interpreted to mean there was no termination and that the employees had been offered an equivalent job opportunity. We think the facts in this case substantiate the findings of the court on this issue. Warwick had recognized and implemented the termination and non-equivalent job opportunity policies when their plants at Covington, Tennessee, and Zion, Illinois, were closed. The transfer of ownership of the last two mentioned plants included a change in production or a shut-down. It is obvious by all of the terms of the policy in question that the employees in those cases were entitled to termination or equivalent job opportunity allowances. Under the circumstances of the present case employees lost no time from work, received the same or higher Wages after the change, and retained approximately the same fringe benefits; therefore they were not terminated.

Appellants argue that the jobs offered and accepted by the appellants were not equivalent job opportunities within the meaning of the policy. So far as the former employees of Warwick at the Forrest City plant are concerned, we do not consider the question of equivalent job opportunity because we have found they were not terminated and that there was no closing of an organizational unit. The only persons to be considered under the equivalent job opportunity portion of the policy would be those who transferred to Forrest City from other plants. The trial court held that employees in this category had the option of taking the new employment and not being terminated or accepting termination and receiving the allowance. Witnesses on both sides of the case testified that the application of the policy by Warwick in this respect had been consistent and longstanding. There was substantial evidence that the employees waived their rights under the equivalent job opportunity section by accepting the employment arranged for them by Warwick. It is true the court specifically found that these transferred employees were offered non-equivalent job opportunities. However, the court also found that the policy had been interpreted to mean that when a non-equivalent job opportunity situation existed and the employee accepted a new job offered by Warwick, the employee accepting it was not entitled to termination allowances.

The prior interpretations by Warwick of the foregoing provisions of the termination policy were properly applied in the present case, even if appellants are correct in stating that prior interpretations of the policy at other locations were unknown to them. We think the parol testimony offered in this case was admissible for two reasons. First, the matter was opened up by the appellants’ inquiry into treatment of employees at the Midwest Cabinet Facility which had previously been shut down. The second and most important reason for allowing this testimony is that such testimony was offered only to prove an independent collateral fact about which the written contract was silent. It was not offered to alter, vary, or contradict the written terms of the contract. Loe v. McHargue, 239 Ark. 793, 394 S.W. 2d 475 (1965); Lane v. Pfeifer, 264 Ark. 162, 568 S.W. 2d 212 (1978).

The argument that the appellants were entitled to severance pay under the terms of the policy has been discussed adequately along with the other points in question. Section D of the policy provided that employees should receive two weeks notice prior to termination. Failure to give two weeks notice would entitle the employees to termination allowances for these two weeks. However, since we have already held there were no terminations, there was no need for notice and the appellants are not entitled to benefits for lack of notice, nor to severance pay.

Appellants contend they are entitled to certain expenses by reason of the appellee designating additional parts of the record on appeal which were not necessary for the purpose of the appeal. In view of the long and complicated trial in this matter we are unable to say that the appellee clearly designated the additional material for the purpose of causing the appellants to expend more money. The matter of the costs of the action will be set out in the Mandate.

Appellee argues that fundamental principles of fairness prohibit appellants from reaping windfall benefits inconsistent with the purpose of Warwick’s policy. We see no need to delve into this point in view of our holding on appellants’ arguments.

Affirmed.


author: Per Curiam.

text:
    John Cecil CASH and Bobbie CASH, His Wife v. Harvey H. CASH et al
    81-20
    629 S.W. 2d 298
    Supreme Court of Arkansas
    Opinion delivered March 15, 1982
    [Rehearing denied April 12, 1982.]

      James W. Haddock, for appellants.

      Charles S. Gibson, of Gibson Law Offices, for appellees.
   Per Curiam.

This appeal is brought from an order of the Desha Chancery Court granting the partition of land in Desha County (Case No. 80-19). The issue on appeal is whether the chancellor is barred from granting partition by the decree of an earlier suit (Case No. 76-61) denying partition of the same property.

A. C. Cash, a widower, owned the property in issue when he died testate in March, 1969, survived by ten children. From the record, we conclude that Cash’s will made no specific devise and title was treated as having descended to the heirs rather than vesting under the will, each inheriting an undivided one-tenth interest in the property. A provision of the will reads:

I hereby direct that my lands be held in tact for a period of twenty years after the date of my decease and that during such time said lands shall not be sold, pledged, or mortgaged; and CONDITIONED FURTHER, HOWEVER, should any of my said children desire to sell his or her share of my land at the end of twenty years, such child shall give each and every one of my other children a privilege to purchase said interest in said lands, for a period of 60 days at such bona fide price or offer as said child may recover for such undivided interest in my lands from such outside person.

In the earlier suit (76-61), brought by nine of the Cash heirs against the tenth (appellant), the chancellor denied partition. His denial was not based on the testamentary restraint against alienation but on a finding the heirs, by their conduct, had acquiesced in the alienation provision and, consequently, were estopped from partitioning the property.

In 1979 Verna Morrison, one of the nine petitioners in the original partition suit, died intestate leaving five children, each of whom became seized of an undivided one-fiftieth interest in the property in fee. The children of Verna Morrison were not parties to the earlier suit but are parties to the pending suit seeking partition.

Referring to the record, we find numerous opposing motions to vacate or modify the decree in 76-61. On July 2, 1980, the chancellor granted appellants’ motion to dismiss appellees’ suit to partition, holding that the decree in that case was binding on the heirs of Verna Morrison, not on the theory of res judicata as appellants contend, but on a finding that different parties and different issues were involved.

Appellees again moved the chancellor to amend or modify the July 2 order and after intervening orders the chancellor found on October 16, 1980, that he still had discretionary control over the issue of whether to dismiss the petition of the Morrison heirs and found the limitation on alienation contained in the will was repugnant, setting aside the order dismissing the petition for partition. Appellants challenged this order by the chancellor by a motion to modify or vacate, but on November 5, 1980, the chancellor reaffirmed his order by dismissing the motion.

We have had to refer repeatedly to the record in an effort to comprehend the merits of this appeal. It contains a mass of pleadings, motions and orders, reflecting numerous collateral issues typical of inner-family disputes. Virtually all we have been able to learn of the proceedings below has been gleaned from appellees’ brief or from the record itself and even that painstakingly acquired.

Where the appellants’ abstract and brief fail to provide a sufficient and coherent explanation of the proceedings before the trial court, and of the pleadings and orders, including the decree relied on, it is impossible to determine whether error has occurred and we are left to presume the chancellor correctly interpreted his own orders. The burden is on the appellants to demonstrate wherein the trial court has committed reversible error. Wallis v. Mrs. Smith’s Pie Company, 261 Ark. 622, 550 S.W. 2d 453 (1977); Poindexter v. Cole, 239 Ark. 471, 389 S.W. 2d 869 (1965); Meyer v. Eichenbaum, 197 Ark. 650, 124 S.W. 2d 830 (1939); Southern National Insurance Company v. Williams, 192 Ark. 1178, 95 S.W. 2d 91 (1936). That burden has not been metin this case; on the contrary, from what we can determine the chancellor was right. The order is affirmed.


author: Frank Holt, Justice.

text:
    Theodis LOCKETT v. STATE of Arkansas
    CR 81-114
    629 S.W. 2d 302
    Supreme Court of Arkansas
    Opinion delivered March 22, 1982

      Thurman Ragar, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Matthew Wood Fleming, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of aggravated robbery and theft and assessed his punishment at 50 years and 19 years imprisonment respectively. Appellant’s sole argument for reversal through court appointed counsel is that his written confession was involuntary and, therefore, inadmissible inasmuch as it was the result of threats and violence. We disagree and affirm.

At the Denno hearing the state adduced evidence that appellant was arrested about 10:40 p.m. on January 23,1980, for the alleged offenses which had occurred two days earlier. He was taken to the police station and advised of his Miranda rights within 20 minutes after his arrest. Miranda v. Arizona, 384 U.S. 436 (1966). He then signed a standard “waiver of rights” form but refused to make a statement. The next evening the appellant requested to speak with the detectives. He voluntarily gave an oral statement as to his complicity and thereafter signed another or duplicate waiver of rights form at 11:15 p.m. He then accompanied the officers to the scene of the crime, which he reenacted. He directed them to the location of a considerable amount of money, the victim’s pistol, and a crowbar with which he struck the victim. About 2 a.m., following the reenactment of the crime and recovery of these items, he signed another waiver of rights form and narrated in his own handwriting his participation in the robbery and theft.

The appellant testified that he was aware of his rights and had signed a waiver of rights form and the written confession. He maintained that his written confession was the result of the officers beating him and threatening to shoot him and then justifying it by saying he was trying to escape. He denied being involved in the robbery and theft. The officers denied that the appellant was ever beaten, mistreated or threatened with force or violence. Further, no promises were made to appellant, and his confession was freely and voluntarily given.

The burden is on the state to prove by a clear preponderance of the evidence that a custodial statement was voluntarily given. Harvey v. State, 272 Ark. 19, 611 S.W. 2d 762 (1981). On appeal we are required to make an independent determination, based on a review of the totality of the circumstances, and the trial court’s finding on the issue of voluntariness will not be set aside unless it is clearly against the preponderance of the evidence. Hunes v. State, 274 Ark. 268, 623 S.W. 2d 835 (1981); and Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974).

Here, the appellant, 19 years old, is no stranger to the criminal justice system. He was on probation for a similar felony when the instant armed robbery occurred. Appellant’s testimony and that of the police officers are in conflict. It is for the trial judge to weigh the evidence and resolve the credibility of the witnesses. Hunes v. State, supra; and Harvey v. State, supra. Here, we hold that the trial court’s ruling that the confession was freely and voluntarily given is not clearly against the preponderance of the evidence.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Cass S. HOUGH, FORBING INVESTMENTS, INC., and TRANSPORTATION PROPERTIES, INC., d/b/a BEST WESTERN TOWN & COUNTRY MOTEL v. CONTINENTAL LEASING CORP. and Bill WEATHERFORD and Steve WEATHERFORD, d/b/a ACME TYPEWRITER EXCHANGE
    81-253
    630 S.W. 2d 19
    Supreme Court of Arkansas
    Opinion delivered March 22, 1982

      Slinkard & Lingle, P.A., by: James G. Lingle, for appellant and cross-appellee.

      Smith & Smith, by: Raymond C. Smith, for appellee and cross-appellant.
   Robert H. Dudley, Justice.

Appellant Best Western Town and Country Motel in Rogers contacted Acme Typewriter Exchange in Fayetteville about acquiring two electronic cash registers. Both thought Victor brand machines should be installed and Acme contacted appellee Continental Leasing of Hattiesburg, Mississippi and asked if Continental would purchase the machines from Acme and then lease them to appellant. Continental Leasing, which had previously done no business in Arkansas and had no agents or employees in the state, sent Acme a credit application. Acme then forwarded the application to appellant. On the application appellant stated that it was a partnership composed of Cass S. Hough, R. A. Lile and Arnold L. Mayersohn. Continental Leasing investigated the partners and found that they had reputations as substantial businessmen. Continental then notified Acme that it would purchase the machines and lease them to appellant. Continental prepared an instrument with the following style:

CONTINENTAL LEASING CORPORATION LESSOR
P. O. Box 333 /Forrest Towers /Hattiesburg, MS 39401
Lessee No. Rental Commencement Date
1366-01 May 15, 1978

Cass S. Hough executed the instrument for appellant and it was mailed back to Hattiesburg where it was accepted by Continental. Hough testified that he did not read the instrument and thought he signed a conditional sales agreement. He admitted, however, that he had his attorney examine the lease before executing it. The machines had been installed only a short period of time when appellant claimed they were not functioning properly and ceased to make the monthly rental payments. Continental filed suit for the entire unpaid balance, attorney’s fees and possession of the property which, under the terms of the lease, could be sold with the proceeds to be applied to the judgment. Appellant contended that appellee was in violation of the Wingo Act and could not enforce its contract and, alternatively, the instrument was a usurious conditional sales agreement, rather than a true lease, and was void. A jury trial resulted in a judgment for appellee Continental but no attorney’s fees were awarded. Both parties appeal and we affirm on appeal and cross-appeal.

The Wingo Act, Ark. Stat. Ann. § 64-1202 (Repl. 1980), provides that a foreign corporation which does not file its articles of incorporation in this state cannot maintain a cause of action in this state. The act is not applicable to contracts in which the transaction is wholly in interstate commerce. The W. T. Rawleigh Medical Co. v. Rose, 133 Ark. 505, 202 S.W. 849 (1918); Crenshaw v. Arkansas, 227 U.S. 389 (1913). The trial court was correct in finding that the contract was made in Mississippi, where final acceptance occurred. As stated in Goode v. Universal Plastics, Inc., 247 Ark. 442, 445 S.W. 2d 893 (1969):

. . . The rule is stated in Leflar’s American Conflicts Law (1969), § 144 at page 353:
The authorities are reasonably clear that, in this event, the contract is made at the time and place ‘where the last act necessary to the completion of the contract was done — that is, where the contract first creates a legal obligation.’

The contract was therefore a Mississippi contract in interstate commerce and Continental may enforce it in the courts of Arkansas despite its status as a nonqualifying corporation. Brown Broadcast, Inc. v. Pepper Sound Studio, Inc., 242 Ark. 701, 416 S.W. 2d 284 (1967).

The jury upheld the contract as a lease and appellant contends that the trial court erred in not granting the motion for a directed verdict on the issue of usury. A directed verdict is proper only when no fact issue exists and, on appeal, we determine whether a fact issue existed by examining the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W. 2d 869 (1968); Rule 52, A. R. Civ. P. Here, there was substantial evidence that the instrument was a lease and not a disguised conditional sales contract and, accordingly, we affirm.

Appellant validly contends that the contract in issue, a five year lease, is in many respects similar to the ostensible leases found to be usurious in Standard Leasing Corp. v. Schmidt Aviation, 264 Ark. 851, 576 S.W. 2d 181 (1979) and Bell v. Itek Leasing Corp., 262 Ark. 22, 555 S.W. 2d 1 (1977). There are, however, significant differences upon which the jury could base its verdict. The lessee acquired no equity in the property as the lease expressly provided for the return of the equipment to the lessor at the end of the term, or that it be sold and the proceeds go to the lessor. There was no provision for an option to purchase. These facts are substantial evidence from which the jury could find that the intention of the parties was that at the expiration of the lease term the property would revert back to the lessor.

Appellant additionally contends that the trial court erred in refusing to give two instructions. The trial court was correct in its ruling. One of the proposed instructions is a slanted paraphrasing of the language in Bell v. Itek Leasing Corp., supra, and Standard Leasing Corp. v. Schmidt Aviation, supra. An instruction must be unslanted. To be unslanted the instructions must be an objective statement of the law. AMI Introduction, p. X. The trial court refused the other because the court’s own instruction covered the subject. A party is not entitled to his particular preference in the wording of the instructions and a trial judge is not required to say the same thing again in different words. Sanders v. Neuman Drilling Co., 273 Ark. 416, 619 S.W. 2d 674 (1981). The appellant also contends that the trial court committed reversible error in not submitting the case to the jury upon appellant’s requested 16 special interrogatories. Whether to submit or refuse to submit a case on special interrogatories to be answered along with a general verdict is discretionary with the trial court. Missouri Pacific Transportation Co. v. Parker, 200 Ark. 620, 140 S.W. 2d 997 (1940). We find no abuse of discretion for refusing the 16 special interrogatories submitted in this case.

On cross-appeal Continental Leasing contends that it should have been allowed attorney’s fees. We affirm the trial court’s denial of attorney’s fees. In an early case we held void a penalty provision in a promissory note for payment of an attorney’s fee, Boozer v. Anderson, 42 Ark. 167 (1883). We did not allow attorney’s fees on promissory notes until a statute so provided. Ark. Stat. Ann. § 68-910 (Repl. 1979); Hollaway v. Pocahontas Federal Savings & Loan Ass’n., 230 Ark. 310, 323 S.W. 2d 204 (1959). We have consistently followed the concept that the allowance of attorney’s fees as costs is in substance statutory. Light, Taxability of Attorney’s Fees as Costs, 9 Ark. L. Rev. 70 (1955). No statute authorizes attorney’s fees for default on a lease. Until the General Assembly provides otherwise, we will adhere to the sound common law concept of each litigant bearing the cost of his own counsel.

Affirmed on appeal and cross-appeal.


author: Steele Hays, Justice.

text:
    McILROY BANK & TRUST v. James ZUBER and Patricia L. ZUBER, Husband and Wife
    81-254
    629 S.W. 2d 304
    Supreme Court of Arkansas
    Opinion delivered March 22, 1982

      William Russell Gibson, of Pettus, Johnson & Gibson, for appellant.

      James L. Carson, for appellee.
   Steele Hays, Justice.

Appellant filed suit against appellees in the Chancery Court of Washington County on two promissory notes, secured by articles of personal property, seeking foreclosure, sale and deficiency judgment. Appellees moved to dismiss the complaint under Rule 12H (3), A. R. Civ. P., on the ground the court lacked jurisdiction. Appellant responded that it could sue in equity to foreclose its security interest. The chancellor found he lacked subject matter jurisdiction and transferred the suit to circuit court. Appellant appeals.

We do not reach the merits of this appeal as the order appealed from is not final and therefore, not appealable. See Rule 2 (a) 2, Ark. Rules of Appellate Procedure. It is well established that before a judgment is final and appealable it must dismiss the parties from the court, discharge them from their action or conclude their rights to the subject matter in controversy. An order transferring a suit from law to equity, or the reverse, is not appealable. Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W. 2d 326 (1982); Heber Springs Lawn and Garden, Inc. v. FMC Corp., 275 Ark. 260, 628 S.W. 2d 563 (1982).

Appeal dismissed.


author: Steele Hays, Justice. Richard B. Adkisson, Chief Justice, John I. Purtle, Justice,

text:
    Connie Louise LASCANO v. STATE of Arkansas
    CR 81-112
    631 S.W. 2d 258
    Supreme Court of Arkansas
    Opinion delivered March 22, 1982
    [Rehearing denied May 3, 1982.]

      Jeff Duty, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.

      Adkisson, C.J., and Purtle, J., would grant rehearing.

   Steele Hays, Justice.

Appellant was convicted of first degree murder and sentenced to 35 years in the Department of Correction. For reversal, she argues that the trial court erred in denying a motion to suppress tangible evidence, in admitting a confession and in refusing to declare a mistrial. We find no error and affirm the judgment.

On October 25, 1980, a Saturday, the body of Mrs. Jeannie Hunt was found in the kitchen of her Fayetteville home. She had been shot four times and death was thought to have occurred at about 8:30 or 9 the previous evening. Appellant, an acquaintance of Ben and Jeannie Hunt, was contacted by two deputies on Sunday evening and asked to come to the sheriff’s office for questioning. Sergeant Doug Fogley of the State Police began the interview by asking her name, address, phone number and when she had last seen Jeannie Hunt. Appellant said, “About 8:30 p.m. on Friday.” He immediately explained her rights to her and obtained her signature on a waiver form. During the questioning appellant gave a non-incriminating account of her movements on Friday. Appellant was asked if she owned a handgun and said she did, which she kept in the glove compartment of her car. She agreed to a search of the vehicle and, when the pistol was not found, to a search of her apartment, which produced a partial box of Remington .22 caliber long-rifle cartridges containing 44 bullets, six less than the normal 50. The Remington cartridges had a yellow jacket, matching one recovered at the scene.

Appellant was told of these findings and that there was probable cause to charge her with murder. She remained in custody and at about 5 p.m. on Sunday she dictated and signed a confession. She gave an account of a turbulent love affair with Ben Hunt, the victim’s husband, characterized by hostility and threats between the two women. In early October appellant purchased a pistol for protection, having some reason to think that Mrs. Hunt had a weapon. She said on Friday she saw Jeannie Hunt at a shopping center and decided to visit her; she wanted to find out where she stood with Ben and whether Ben and Jeannie planned to stay together. She took the pistol with her and arrived at about 8:30. They talked in the kitchen until Mrs. Hunt became angry. Shouting accusations she told appellant to get out of her house and pulled her toward the door. Appellant drew the pistol and fired four times at point blank range. She wiped her fingerprints from a drinking glass, drove home and changed clothes for work. After throwing the pistol from a bridge, she picked up her daughter and friends from a skating party and went to work. The pistol was later recovered by the police.

Appellant argues her Fourth and Fifth Amendment rights were violated by the trial court in admitting her confession and in refusing to grant her motion to suppress the physical evidence. She claims no attempt was made by the deputies to comply with Rule 2.3, A. R. Crim. P., by informing her she was under no legal duty to accompany them to the sheriff’s office. Further, before she was given the required Miranda warning she said she had seen Jeannie Hunt about 8:30 on Friday night. Appellant insists this admission that she had seen the victim near the time of death was fatal — that it opened the door to the whole case and everything obtained from her thereafter was tainted.

But the argument is not persuasive. No evidence at the scene implicated the appellant and there is no indication Sergeant Fogley regarded her as a specific suspect. Appellant had not been singled out as a suspect; all individuals acquainted with the victim were being contacted and under such circumstances it is not impermissible to ask some preliminary information questions without overstepping constitutional protectons. Here the interview had hardly begun and the questions asked were general. It seems entirely routine to ask when someone last saw the victim. Significantly, Sergeant Fogley immediately interrupted the questioning to give the Miranda warnings and there is nothing to suggest appellant was caught unawares by that single question. Her earlier steps to conceal the weapon and to wipe her fingerprints from the glass in the Hunt kitchen indicate she took deliberate precautions. Evidently she supplied a satisfactory explanation of her whereabouts on Friday and gave non-incriminating answers during the remainder of the interview. She had, in fact, seen Jeannie Hunt at a shopping center on Friday, but whether she was referring to that encounter is not revealed to us. However that may be, no other incriminating information appears to have been obtained from her. In short, in the absence of some indication of bad faith tactics by the officer or some particular vulnerability of the individual, we are not willing to say on the basis of that marginal question that everything the appellant later disclosed must be excluded. The constitutional protections against self-incrimination do not extend that far.

Procedures for custodial interrogation are prescribed by two well known decisions: Escobedo v. Illinois, 378 U.S. 478, decided in 1964 and Miranda v. Arizona, 384 U.S. 436, coming two years later. Neither case purports to dictate the suppression of every statement or utterance given in the absence of the requested warnings, but rather of statements of those arrested or on whom suspicion has focused. Appellant suggests Miranda abolishes the distinction between the investigatory and accusative phases of crime detection. We disagree. The circumstances of this case and those present in Escobedo and Miranda invite comparison. Escobedo, with no warnings whatever, was confronted in custody with an alleged accomplice who accused him of murder. Escobedo said, “I didn’t shoot Manuel, you did it.” Handcuffed, Escobedo was questioned while standing up for four hours. Additionally, he was refused access to his retained counsel, who spent several hours at the detective bureau trying to confer with him. Somewhat similarly, Miranda was taken to police headquarters and identified by a rape victim; he was then questioned by two detectives for two hours without being told he had a right to counsel, nor was his right not to be compelled to incriminate himself effectively preserved.

By contrast, the testimony of witnesses, including appellant, show she was treated with deference. Sergeant Fogley said he repeatedly urged her to obtain counsel to no avail. Appellant, 33 years of age, is described as an articulate university student with a degree in education and completing requirements for a degree in marketing; the Miranda warnings were given her in writing no less than three times prior to her confession.

Appellant urges the point that Sheriff Marshall regarded her as a suspect. But that need not tarnish these proceedings. In many homicides an aura of suspicion initially touches spouses, lovers, rivals, even acquaintances, until attention can focus more clearly on one or more individuals. There is no evidence that appellant was more suspect than others in the beginning, as the sheriff’s testimony reveals:

A: I considered her as a suspect in a homicide case. We consider everyone a suspect until we sort them out.
Q: So she was invited down to the police station at your request and you considered her a suspect at that time?
A: She was no different in the case than numerous other people we had asked to come to the station to talk to us.
Q: They were all considered to be suspects?
A: That’s correct, (p. 165.)

We cannot say the trial court’s rulings on appellant’s motions were against the preponderance of the evidence.

Appellant submits that no effort was made to comply with Rule 2.3, A. R. Crim. P., which requires that if a law enforcement officer asks a person to come to the police station he shall make it clear there is no obligation to comply. Whether the deputies observed the rule is not clear, as the question was never asked. It is clear that no objection was made to the trial court and, hence, it is not available to appellant on appeal. Meyers v. State, 271 Ark. 886, 611 S.W. 2d 514 (1981).

Appellant also urges that a mistrial should have been declared because appellant’s counsel moved to withdraw during the course of trial. In chambers, with appellant present, defense counsel informed the court he felt a fraud was being perpetrated in that appellant revealed to him the principal purpose of her defense was to protect Ben Hunt and prove him innocent. Counsel represented to the court that he could not ethically defend appellant in light of that disclosure. The trial judge asked appellant if she and counsel had discussed the issue at length and she assured him she was fully satisfied with the representation she was receiving. In the end, and after a conference between appellant and counsel, the motion for a mistrial seems to have been withdrawn with Mr. Werner’s comment, “Your Honor, we have reconsidered. We are going to call Dr. Finch to testify and also the defendant, if she wants to testify,” and with that the trial continued. (See p. 715.) Under the circumstances we could hardly say the trial court abused its discretion.

The judgment is affirmed.

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

Richard B. Adkisson, Chief Justice,

dissenting. By direction of the Washington County Sheriff two deputies “picked up” the appellant at her home, took her to the sheriff’s office, and questioned her about the murder. Appellant responded, incriminating herself; she was then advised of her right to remain silent as required by Miranda v. Arizona, 384 U.S. 436 (1966); afterwards, she made other incriminating statements.

At the time she was “picked up” from her home, she was one of two prime suspects in the murder. Evidence that this “pick up” was, in effect, an arrest can be garnered from the failure of the deputies to advise her that she was not required to accompany them. Such a statement is required by Rule 2.3, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977).

It is clear from these facts that this was a custodial interrogation to which Miranda was intended to apply. Miranda warnings should have been given at the beginning of the interrogation rather than after an incriminating question had been asked and answered. The admission in evidence of this statement was prejudicial error. This case should be reversed and remanded.

John I. Purtle, Justice,

dissenting. The majority correctly states the body of Mrs. Jeannie Hunt was found in the kitchen of her Fayetteville home on Saturday, October 25, 1980. It was determined that she died about 8:30 or 9:00 p.m. on the previous evening. Since appellant was not taken into custody until about 7:30 p.m. on October 26, it was already known by the officers that the death had occurred at the time stated above.

Sheriff Herb Marshall was in charge of the investigation, and he stated: “It had to be one of two people.” The two people he referred to were the appellant and Ben Hunt, the husband of the deceased. The majority opinion at one point states: “Appellant had not been singled out as a suspect.” This is simply incorrect in light of Sheriff Marshall’s testimony recalling a conversation with appellant in which he said, “It is either you or Ben Hunt.”

With the background information the officers possessed there was no excuse for not giving the appellant her warnings prior to the commencement of interrogation. Instead, the officers very skillfully asked her a few perfunctory questions and then came down to the heart of the case. After they had determined that she had been at Jeannie Hunt’s house about the time of the murder they then decided to give her her warnings. The only thing the officers needed to know to determine the identity of the murderer was who was present at the victim’s home at about 8:30 p.m. on Friday night. Having found out the appellant was this person they then proceeded to warn her. This is shutting the barn door after the horse is out.

It is ironic that the majority cites but two sources of the law upon which to base its opinion in regard to the questions raised by the custodial interrogation; those being Miranda v. Arizona, 384 U.S. 436 (1966), Escobedo v. Illinois, 378 U.S. 478 (1964). Both Miranda and Escobedo have held that a person has certain rights originating in that source of highest authority, the United States Constitution and the Bill of Rights. There is no justifiable way that the appellant’s rights under the Fourth and Fifth Amendments have been protected despite the majority’s apologia to that effect.

The exclusionary rule was first articulated in the case of Weeks v. United States, 232 U.S. 383 (1914). The United States Supreme Court found that evidence was obtained through a warrantless search and thereby declared it illegal. The court stated that if the evidence were accepted it “would be to affirm by judicial decision a manifest neglect, if notan open defiance, of prohibitions of the Constitution.” The court reasoned that judicial integrity demanded that the courts not act as accomplices to violators of the constitution. The court developed this rule further in the case of Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920). In Silverthorne the government had used an illegal search to gain information upon which to base an indictment and to subpoena incriminating documents. In following the reasoning in the Weeks case Justice Holmes, speaking for the court, stated:

. . . The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all.

The doctrine culminated in the case of Nardone v. United States, 308 U.S. 338 (1939), wherein it was held that information acquired by such unconstitutional means were “fruits of the poisonous tree” and could not be used as evidence in a criminal prosecution. Justice Holmes stated in Silverthorne that without the exclusionary rule the Fourth Amendment becomes a mere form of words. Justice Brandéis stated in his dissent in Olmstead v. United States, 277 U.S. 438 (1928): “ ... If the court allows mistaken ideas of the requirements of the Constitution to pass muster, it will teach ignorance of the Constitution ...” Therefore, if we allow illegal procedures, through ignorance or by design, to erode our processes, judicial integrity itself will be sacrificed in order to meet the needs of expediency. Justice Brandéis’ Olmstead dissent was later afforded due deference by the court’s specific overruling of Olmstead in Katz v. United States, 389 U.S. 347 (1967). Although the exclusionary rule originally applied only to the United States government, it was extended to the states through the Fourteenth Amendment to the United States Constitution in the case of Mapp v. Ohio, 367 U.S. 643 (1961). In Mapp the court stated that experience had determined that the exclusionary rule was the only effective means of deterring police misconduct in their zeal to apprehend criminals. It is abundantly clear in this case that the exclusionary rule, as previously discussed, would apply to violations of both Fourth and Fifth Amendment rights.

Regardless of the manner in which the majority sets forth the facts and the law in the present case, it is obvious that the appellant was one of only two suspects in this murder case. This was fully known by the officers when they first questioned her. The warnings should have been given prior to the questioning. Miranda v. Arizona, supra. Therefore, all the talk about insisting upon her calling an attorney and reading her rights three or four times to her is an after the fact attempt to cover up the fatal error in this case. Even a guilty person is entitled to a fair trial. This is all the state or the defendant is entitled to.

In the case of Hayes v. State, 269 Ark. 47,598 S. W. 2d 91 (1980), the facts show that the police went to Hayes’ house as a starting point in their investigation of a murder that had occurred a short time previously. They knew that the deceased had been living with Hayes. He voluntarily accompanied them to the police department, then gave conflicting stories about when and where he last saw the victim. At that point the police decided he was a possible suspect and he was given his Miranda warnings. In the present case, it is abundantly clear that Connie Lascano was considered to be a suspect even before the officers came to get her.

Rule 2.3, A. R. Crim. P., states:

If a law enforcement officer ... requests any person to come to or remain at a police station, ... he shall take such steps as are reasonable to make clear that there is no legal obligation to comply with such a request.

In the present case, two police officers appeared at appellant’s home, advised her that they were police officers and asked her to come down to the sheriff’s office, after which she was placed in the back seat of the police vehicle and transported to the sheriff’s office. One of the officers, Sergeant Charles Rexford, testified in response to the question, “Did you tell her she was a possible suspect in the case?”; “No, I did not.” Furthermore, the uncontradicted evidence is that the police officers made no attempt to comply with Rule 2.3. It is my opinion that this violation combined with the other, serious errors brought before us in this appeal should be grounds for reversal. There is no doubt in my mind but that there was ample legal evidence with which to convict the appellant. However, I would not whittle away one word or one letter of the constitution in order to make the present conviction stand up.

I dissent.


text:
    Robert J. WILLIAMS v. STATE of Arkansas
    CR 81-137
    629 S.W. 2d 302
    Supreme Court of Arkansas
    Opinion delivered March 22, 1982

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for petitioner.

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

Petitioner asks that we issue a Writ of Certiorari to the Clerk of the Circuit Court of Pulaski County, Fifth Division, ordering a supplementation of the record. Petitioner alleges that the complete closing arguments are not contained in the record, rather the record contains only objections raised during the argument. The petitioner does not allege that he requested that arguments be reported, nor is it alleged that the trial court ordered it reported, nor is it alleged that it was reported.

Ark. Stat. Ann. § 22-352 (Repl. 1962) sets out the duties of the court reporter:

Duties — Contents of stenographic report. — The duty of the stenographer shall be to attend all terms of the circuit court held within and for the circuit for which he is appointed, and he shall, when so requested by either party, make a stenographic record of all oral proceedings had in such court, including the testimony of witnesses with the questions to them, verbatim, the oral instructions of the court and any further proceedings or matter, when directed by the presiding judge or upon request of counsel to do so, and whenever during the progress of the cause any question arises as to the admissibility or rejection of evidence or any other matter causing an argument to the court, such argument shall not be recorded by the stenographer unless requested by the counsel in said cause, but he shall briefly note the objections made and the ruling thereon and any exception taken by either party or his counsel to such ruling.

See also, the last four full paragraphs of McCain v. State, 132 Ark. 497, 201 S.W. 840 (1918).

Unless the reporting of the arguments was requested or was ordered reported, we will not issue a writ of certiorari to complete the record.


author: Per Curiam. John I. Purtle, Justice,

text:
    Jacquetta ALEXANDER, Circuit Clerk of Pulaski County, Arkansas v. W. E. BEAUMONT, County Judge of Pulaski County, Arkansas
    82-27
    629 S.W. 2d 300
    Supreme Court of Arkansas
    Opinion delivered March 22, 1982

      John Wesley Hall, Jr., for appellant.

      House, Holmes if Jewell, P.A., by: David Hargis, for appellee.
   Per Curiam.

On February 9, 1982, petitoner filed a petition for a Writ of Certiorari to complete the record. After fully considering the petition we denied it on February 22, 1982. Petitioner, by her attorney John Wesley Hall, Jr., has now filed a motion asking us to reconsider, and states:

If the Court refuses to reconsider the Petition, whether this is the result the Court desires or not, the Court should enter a per curiam order for publication that explains to the rest of the Arkansas bar and public that, henceforth, circumstances beyond the control of parties to an appeal can preclude the use of a transcript of testimony. The public needs to know that their rights to effectively pursue appeals can be lost by the conduct of others. This is a novel and unprecedented reversal of this Court’s prior holdings and is erroneous.

Because petitioner has requested that we publish our reasons we shall do so.

The notice of appeal, given on August 10,1981, does not contain a statement that the transcript had been ordered as required by Rule 3 (e), Rules of Appellate Procedure, Ark. Stat. Ann. Vol. 3A (Repl. 1979). On October 21, 1981, petitioner obtained an extension of time to docket the appeal. This extension was in violation of Rule 5 (b), Rules of Appellate Procedure, which provides that an extension of time for filing the record may be given upon the trial court “finding that a reporter’s transcript... has been ordered...” We have issued a clear warning that the provision must be followed. Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255 (1973) and appendix. This warning was repeated in Perry v. Perry, 257 Ark. 237,515 S.W. 2d 640 (1974). We stated that the purpose of the rule (a statute at that time) was to eliminate unnecessary delay in the docketing of appeals and “We expect compliance with the spirit of the statute, to the end that lawsuits may progress as expeditiously as justice requires.” In Owens v. Bill and Tony’s Liquor Store, 258 Ark. 887, 529 S.W. 2d 354 (1975), we pointed out that the rule "furnishes ground for such action as we deem appropriate.” In Canal Insurance Co. v. Arney, 258 Ark. 893, 530 S.W. 2d 178 (1975), we dismissed a case under this rule. We reiterated the necessity for ordering a transcript and conducting a hearing on the necessity for an extension in Harper v. Pearson, 262 Ark. 294, 556 S.W. 2d 142 (1977).

Petitioner’s attorney, John Wesley Hall, Jr., still without ordering a transcript and again without a hearing, obtained from the trial court a second extension of time for the filing of the record. One day before expiration of the second extension of time Mr. Hall filed a petition for a Writ of Certiorari with this court stating that the court reporter had been paid and that 60 days’ additional time was needed. The petition implied that the transcript had been ordered for some time.

Both court reporters involved have now executed affidavits to this court stating that Mr. Hall had not ordered transcripts when the extensions of time were granted. They affirm that Mr. Hall did not order the record until sometime after January 7, or approximately 30 days before the second extension expired. Quite naturally, the transcript and record were not then timely filed.

The rules for timely ordering of the record have been flagrantly violated. As previously stated, we expect compliance with our rules in order that unnecessary delays may be eliminated and so that lawsuits may proceed as expeditiously as possible.

The petition for reconsideration is refused.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the per curiam issued this date because I think there were very special circumstances involved in this matter which could be used to mitigate the failure of the petitioner to comply with the standard rules of the court.

All parties were advised from the beginning that the transcript had not been ordered although the notice of appeal had been given. It was petitioner’s intention to try to raise the money to pay for the appeal in time to meet these deadlines. As I understand the record, the court reporters led the petitioner’s attorney to believe they could complete the records in the limited amount of time which was given. The money was advanced to the reporters, as is required by them, before they started typing.

From a reading of the record it appears to me that both reporters led the petitioner to believe they could complete the transcripts in the amount of time allocated from the date of receipt of payment. They would not or could not complete their end of the bargain. It is not infrequent that we have to delay the whole process of court to wait on a court reporter. This seems to be the standard rather than the exception. In this case the reporters should have been fully aware that they could not complete the transcript in the time allowed after taking petitioner’s money. In reviewing the record, it seems to me that the attorney for petitioner did, indeed, make a good faith effort to comply with our rules, and did, in effect, substantially comply with them. There is absolutely no evidence that a fraud was perpetrated on or even attempted to be perpetrated against this court.

Therefore, in view of the special circumstances I would make an exception to our rule and I would allow the appeal to be filed in this case.


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

text:
    Martha C. SEXTON, Executrix of the Estate of Walter Allen SEXTON, Deceased v. ST. PAUL FIRE & MARINE INSURANCE CO.
    81-242
    631 S.W. 2d 270
    Supreme Court of Arkansas
    Opinion delivered March 29, 1982
    [Rehearing denied May 3, 1982.*]

      Charles M. Walker, of Wilson, Gunter & Walker, P.A., for appellant.

      Victor Hlavinka, of Atchley, Russell, Waldrop ir Hlavinka, for appellee.
   Richard B. Adkisson, Chief Justice.

The Nevada County Circuit Court granted a motion for a directed verdict in favor of appellee after finding that appellant had failed to meet the burden of proof for “medical injury” as required by Act 709 of 1979 (Ark. Stat. Ann. § 34-2613 — 2620 [Supp. 1981]). On appeal we affirm.

Appellant’s husband, Walter Sexton, was admitted to the Nevada County Hospital on May 29, 1979, after being diagnosed as suffering from diabetes, generalized arteriosclerosis, and a kidney infection. He was 81 years old and was mentally confused during much of his stay in the hospital. The nurses’ notes reflect that on May 51, he fell in the bathroom but was not seriously injured and that on June 2 he nearly fell and was put to bed. Nurses found him attempting to climb out of bed on numerous occasions. On June 2 one of the nurses called Sexton’s doctor to ask if he would authorize a Posey vest. A Posey vest is a type of safety restraint that fits around a patient’s chest and is tied under the bed to keep the patient from getting out of bed. The doctor authorized the restraint “as needed for safety” but allowed the nurses to make the final decision as to whether to use the vest. No Posey vest was given to Sexton, and on June 3 he fell again, fracturing his hip and shoulder. Sexton died several months later. His wife, as executrix of his estate, brought suit alleging that the hospital was negligent in failing to place the vest on her husband.

The trial court based the granting of the directed verdict for appellee on Ark. Stat. Ann. § 34-2614 (Supp. 1981), which provides:

Burden of proof. — (A) In any action for medical injury, the plaintiff shall have the burden of proving:
(1) The degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider in good standing, engaged in the same type of practice or specialty in the locality in which he practices or in a similar locality; and
(2) That the medical care provider failed to act in accordance with such standard; and
(3) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred. . . .

Appellant did not introduce any evidence of the degree of skill used by other hospitals in the same or similar locality as required by this statute.

Appellant correctly argues that this Act is only applicable to professional services. Ark. Stat. Ann. § 34-2613 (Supp. 1981) provides:

(C) ‘Medical injury or injury’ means any adverse consequences arising out of or sustained in the course of the professional services being rendered by a medical care provider, whether resulting from negligence, error or omission in the performance of such services; or from rendition of such services without informed consent or in breach of warranty or in violation of contract; or from failure to diagnose; or from premature abandonment of a patient or of a course of treatment; or from failure to properly maintain equipment or appliances necessary to the rendition of such services; or otherwise arising out of or sustained in the course of such services.

However, appellant incorrectly argues that the use of a Posey vest is not a professional service. Testimony revealed that only the doctor could authorize its use, although its actual placement on the patient was left to the discretion of the nurse.

A hospital is required to consider the patient’s capacity to care for himself and to protect the patient from dangers created by his weakened condition. Providing a safe environment for patients is within the scope of the professional services by a hospital. Murillo v. Good Samaritan Hospital of Anaheim, 99 Cal. App. 3d 50, 160 Cal. Rptr. 33 (1979).

Analogous are decisions holding that whether to raise bedrails involves the expert judgment of the health care provider and is, therefore, beyond the common knowledge of the jury and a matter as to which expert testimony is required. See Carrigan v. Sacred Heart Hospital, 104 N.H. 73, 178 A. 2d 502 (1962); Mossman v. Albany Medical Center, 311 N.Y.S. 2d 131 (1970).

Affirmed.

Hickman, Purtle, and Hays, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The majority has given the statute in question a most liberal interpretation. It is my judgment that we should strictly construe the statute.

The facts are fairly set out by the majority and the question is whether Walter Sexton, an elderly man, suffered a “medical injury” when he fell out of bed fracturing his hip and shoulder. For at least two days prior to this time, the medical records indicated that he had been falling, was in danger, and needed special care and attention. A physician gave permission, if necessary, to put the patient in a posey vest for his protection. The nurse in charge failed to put him in that vest and the majority finds that her decision was a professional one. I seriously disagree with that judgment. It does not take any special knowledge or skill to know that in a case like this the patient needed restraint. It was a common sense judgment that any mature adult could have made. If there was a professional decision involved, it had already been made by the doctor. Expert testimony should not have been required of the plaintiff.

At issue here is what advantage is to be granted to a special segment of our society; in this particular case, a hospital. The Act in question places a burden on a plaintiff that does not exist in other negligence cases; that is, an expert witness must be called by the plaintiff to show the degree of skill ordinarily possessed by a hospital in the locality regarding the care of patients.

The majority bases its decision on cases from California and New York; those decisions in my judgment severely limit one’s right to sue a hospital or member of the medical profession for any injury that occurs in the hospital. For example, in the case of Carrigan v. Sacred Heart Hospital, 104 N.H. 73, 178 A. 2d 502 (1962), it was determined that it was a “professional” judgment whether to raise the bedrails on a bed. I would hardly call that a decision requiring special knowledge or skill.

The reason I would strictly construe this Act is because I consider such legislation to be in the same category as that in derogation of common law, or that of a special grant, privilege or immunity, or an exemption from taxation. In all of these instances we strictly construe the legislation. In Hackney v. Southwest Hotels,Inc., 210 Ark. 234, 195 S.W. 2d 55 (1946), we strictly construed a statute that limited the liability of a hotel keeper. Sutherland in his work on statutory construction recognizes as an established principle of law that legislative grants of rights, powers, privileges, immunities or benefits should be strictly construed against the claims of the grantees. In a significant observation he says:

In a manner of speaking, all legislation which undertakes to change the existing law must have an effect to redetermine legal relationships between and among people, and can therefore be said to grant rights, powers, privileges or immunities to the advantaged parties as against the disadvantaged ones who are subjected to corelative duties, disabilities or liabilities. SUTHERLAND, STATUTORY CONSTRUCTION, Vol. 3, § 63.02 (4th ed. 1974).

We routinely hold that one claiming an exception from taxation because of a statutory grant has the burden of clearly establishing the exception beyond a reasonable doubt, and the statute will be strictly construed against the exception, and “to doubt is to deny the exemption.” S. H. & J. Drilling Corp. v. Qualls, 268 Ark. 1, 593 S.W. 2d 178 (1980). Should not liability for a life be at least as important as accountability for a tax?

Furthermore, we should consider the actual intent of the legislature. I cannot believe the legislature meant that an injury caused by such a negligent act as that in this case would be considered a “medical injury.” After all, we are expected to use common sense in construing legislation. Shinn v. Heath, 259 Ark. 577, 535 S.W. 2d 57 (1976).

I am afraid the majority decision means that any injury occurring in a hospital will be deemed a “medical injury” and, therefore, shielded to a degree from liability.

There are already enough restrictions that make an injured person’s recovery difficult in a medical malpractice case. For example, the medical profession enjoys a special statute of limitations of two years, whereas other defendants in negligence cases are liable to suit for three years. Ark. Stat. Ann. § 34-2616 (Supp. 1981); Ark. Stat. Ann. § 37-206 (Repl. 1962); Midwest Mutual Ins. Co. v. Ark. Nat’l Co., 260 Ark. 352, 538 S.W. 2d 574 (1976). The Act in question requires a plaintiff to provide testimony that the treatment given was not the kind customarily afforded a patient by medical care providers with similar training in the locality. Ark. Stat. Ann. § 34-2614 (Supp. 1981). Such testimony would necessarily have to come from one qualified as an expert. Furthermore, the plaintiff is required by this same Act to give two months notice to a defendant before suit is filed, Ark. Stat. Ann. § 34-2617 (Supp. 1981), for what reason I cannot imagine.

If there is one basic principle that runs throughout our law it is that equality of treatment is to be the rule. Art. 2, Sec. 18 of the Arkansas Constitution states:

The General Assembly shall not grant to any citizen or class of citizens privileges or immunities which upon the same terms shall not equally belong to all citizens.

Art. 2, Sec. 13 reads:

Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformable to the laws.

Art. 2, Sec. 3 reads:

The equality of all persons before the law is recognized, and shall ever remain inviolate; nor shall any citizen ever be deprived of any right, privilege or immunity, nor exempted from any burden or duty, on account of race, color or previous condition.

By an initiative petition the people amended the Arkansas Constitution to prohibit the legislature from passing any local or special act. Amend. 14, Ark. CONST. And the list could go on of the attitude of the law regarding grants of special privileges. These principles alone are enough to warrant strict construction of the statute in question.

The medical profession no doubt deserves some privileges because of its service to mankind. But it does not deserve a form of immunity from accountability for its negligent acts which are not caused by any lapse of professional, technical or skilled judgment. That profession should be accountable for its ordinary acts of negligence just like the rest of us.

The issue is not before us as to whether the legislature has the authority to decide procedural matters.

Purtle, J., and Hays, J., join in this dissent.
      Purtle, J., would grant rehearing.