author: George Rose Smith, Justice.

text:
    CITY OF VAN BUREN et al v. 64-71 HIGHWAY WATER COMPANY, INC.
    80-181
    605 S.W. 2d 419
    Supreme Court of Arkansas
    Opinion delivered September 29, 1980
    Rehearing denied October 27, 1980

      Gary R. Cottrell and Warner and Smith, by: Wayne Harris, for appellant City of Van Burén Waterworks and Sewer Comm’n.

      Conrad 0. Pugh, for appellant City of Van Burén.

      Daily, West, Core, Coffman & Canfield and Gant & Gant, for appellee.
   George Rose Smith, Justice.

Since 1956 the appellee, a small privately owned water company, has been engaged as a public utility in supplying water to residents of an area of about 13 square miles originally entirely outside the Van Burén city limits. The city, beginning fn 1965, from time to time annexed parts of the area being served by the water company, including what is now the Dewey Ray residential subdivision. No conflict between the water company and the city’s waterworks and sewer commission arose until construction was begun in the subdivision in 1978. At that time the city of Van Burén, which like the appellee buys its water from the city of Fort Smith, asserted the right to sell water within the subdivision in competition with the appellee.

The water company brought this action against the city and its waterworks and sewer commission for a declaratory judgment recognizing the company’s exclusive right to sell water within the territory allocated to it by the Public Service Commission in 1956. The defendants concede that the water company is a public utility, but they insist that whatever right it has to serve the public is not an exclusive one. The circuit court, hearing the case without a jury, found that the water company has a certificate of convenience and necessity from the Public Service Commission giving it the exclusive right to sell water within its allocated territory. This appeal is from that decision. The Court of Appeals certified the case to us, partly because a constitutional issue is asserted on the water company’s cross appeal, which we do not reach.

The appellant’s most forceful argument is simply that the appellee does not have an order from the Public Service Commission specifically stating that the appellee is granted a certificate of convenience and necessity giving it the exclusive privilege of supplying water to the public in its territory. Even so, the great weight of the evidence shows that in' practical effect the appellee has such a certificate, as the trial judge found.

Sections 41 and 43 of Act 324 of 1935, which created what is now the Public Service Commission, dealt with certificates of convenience and necessity. Ark. Stat. Ann. §§73-240 and 73-242 (Repl. 1979). Neither section specified the form of such a certificate or even that it be in writing. That is merely a matter of form. The act, however, did empower the Commission to make rules of practice and procedure. § 73-202 (c). As we know by judicial notice, the Commission adopted such rules as far back as September 3, 1953. We need not examine the early rules, as the litigants in this case put into evidence only the current rules, which became effective March 5, 1976. Section 7 of those rules deals specifically with certificates of convenience and necessity.

Rule 7.01 provides that when such a certificate is required by Sections 41 and 43 of Act 324 (supra), it shall be obtained by application to the Commission. Rule 7.02, pertinent here, then treats the matter of an “Allocated Area”:

(a) Where the Commission has by its order authorized a public utility to serve within a municipality, territorial district, or other geographic area (hereinafter called an allocated area), such order shall be considered a certificate of public convenience and necessity to conduct and operate within such allocated area all distribution facilities and equipment necessary in the ordinary course to serve all consumers, both present and future, located within such allocated area. [Our italics.]

This water company’s initial application to the Commission, in 1956, tracked the statute. It declared that the company was subject to the Commission’s jurisdiction and was required to obtain a certificate of convenience and necessity. The application described the area to be served and asked, first, that the area be allocated to the applicant, and second, that the applicant be granted a certificate of convenience and necessity to furnish water service to customers in that area. The Commission’s order, entered after a hearing, approved the applicant’s proposed rate schedule and specifically found: “There is no adequate supply of water presently available to the residents in said area, and it is, therefore, in the public interest to grant the application.”

True, the order did not specifically recite that the applicant was granted an exclusive right to supply water to residents in the allocated area, but we do not see how the Commission could have intended anything else. Regulation 7.02, quoted above, refers to “all consumers, both present and future.” Moreover, ever since 1956 the appellee has been recognized as a public utility by the Public Service Commission, which has regulated its rates, investigated its operations, specified its accounting practices, and received its annual reports. We need not dwell upon the wasteful duplication of facilities that would result if the city of Van Burén and the appellee were allowed to compete in this small area, with both of them being constitutionally entitled to a fair return upon the value of their rival distribution systems. The consumers would simply have to pay for two networks of pipe.

In affirming the trial court’s judgment we need not and do not hold that every allocation of territory by the Commission amounts to an exclusive franchise to serve that area. We merely hold, viewing the evidence most favorably to the appellee, that the trial judge’s findings are supported not merely by substantial evidence but by the great preponderance of the evidence.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Mike FIORANELLI v. STATE of Arkansas
    CR 80-100
    605 S.W. 2d 13
    Supreme Court of Arkansas
    Opinion delivered September 29, 1980

      E. Alvin Schay, State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: James F. Dowden, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Fioranelli was convicted by a jury of theft by receiving and was sentenced to three years’ confinement. His only argument is that the testimony does not support the verdict.

The proof is sufficient if there is substantial testimony from which the jury could find that Fioranelli had “good reason to believe” that the five guns he bought were stolen property. Ark. Stat. Ann. § 41-2206 (Repl. 1977).

On December 30, 1977, after dark, four youths, aged about 20, broke into a residence north of Lake Village and stole guns, a stereo, and whiskey and wine. They drove at once to Fioranelli’s pawnshop at McMillan’s Corner and sold five guns to him. There was testimony that the guns were worth as much as $1,350.

The State’s testimony, if believed, supplied many circumstances from which the jury could have found that' Fioranelli had good reason to believe the guns were stolen. Four youngsters drove up to his pawnshop after dark to sell guns of substantial value. They did not bring the guns into the shop, but asked Fioranelli to come outside. Fioranelli had them put the guns in the trunk of his car instead of taking them into the shop. When he closed up that night he took the guns to his home in Mississippi, where they still were when the sheriff called him about the guns on the following night.

In buying the guns, Fioranelli paid only $160 for them, a fraction of their value, but he gave a bill of sale reciting a price of $500. In his testimony Fioranelli explained that he expected to sell the guns for $500 and inserted the false amount for income tax purposes. He also told the sheriff initially that he had paid $500 — another falsehood. One of the youths testified that when the matter of serial numbers was mentioned, Fioranelli said he would take care of the serial numbers. On the witness stand Fioranelli insisted that he bought the guns in good faith, but the jury manifestly had a substantial basis for thinking he had many good reasons to believe the guns had been stolen.

Affirmed.


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

text:
    SUPERIOR IMPROVEMENT COMPANY v. MASTIC CORPORATION
    80-117
    604 S.W. 2d 950
    Supreme Court of Arkansas
    Opinion delivered September 29, 1980

      Moses, McClellan, Owen & McDermott, by: Harry E. McDermott, Jr., for appellant.

      Ratten, Brown, Leslie & Davidson, by: Robert B. Leslie, for appellee.
   Frank Holt, Justice.

Appellant, a home improvement business, purchased certain materials from appellee, a home siding wholesaler. As the open account grew, appellee Mastic added service charges on the overdue amounts. Appellee filed this suit to recover the balance, $37,581.80, which includ-' ed previously billed service charges totaling $1,382.08. The lower court, sitting as a jury, found appellee was entitled to recover the full amount sought. For reversal appellant contends the trial court erred in finding the charges were not usurious and, further, in finding appellant had failed to prove the materials were damaged as a setoff.

The appellee’s monthly statements showed the following terms: “Past due amounts will be subject to service charges. EFFECTIVE ANNUAL RATE 12% OR MAXIMUM ALLOWED BY LAW ... net 30 days.’’ The materials were purchased over a period of months from October 25, 1977, to March 23, 1978. The first service charge, billed by separate invoice on February 20, 1978, was $241.83, which is 1% of $24,183.36, the amount then over 60 days old. By a separate invoice in April, $241.83 was added as a March service charge. Both service charges were later included in the April monthly statement. The April and May service charges were $449-21 each, or 1% of the account 60 days past due each month. These service charges were reflected on the June monthly statement. The June service charge of $370.14, which was again 1% of the amount 60 days past due, was cancelled, however, when the account was turned over to the company’s attorney. The June monthly statement reflected a payment of $10,000 with the resulting balance. The service charges were imposed at varying intervals between invoice date and billing date.

The appellant argues that once the service charge was billed, it was billed as that particular month’s service charge and was based on 1% of the amount past due. Consequently, on a per annum basis, the interest charged would be 12% or in excess of the 10% legal rate in Arkansas. Appellant also adduced evidence from a C.P.A. that the service charge on a monthly or daily basis exceeded the lawful rate of 10%.

The appellee admits its computer is programmed to charge its customer 1% per month on past due accounts or a 12% annual interest rate since this ia legal rate of interest in most states where it does business. Appellee denies, however, that the charges are usurious because its method of billing was a “partial billing” based on a ledger-type account. In support of this policy, appellee’s assistant treasurer and credit manager testified:

. . . [T]he first sixty days during which Mastic [appellee] was entitled to receive Ten Percent there was no billing whatsoever, so that when the first billing came out, the actual effective rate at that point would have been just roughly about Six Percent and then as each month goes by you add an additional partial billing, it gradually moves up toward the allowable rate of Ten Percent. This is why we put a flag on the account and start monitoring it at the sixth partial billing in order to be sure that the total billing for service charges which have been rendered to the customer does not exceed that which they would be entitled to at the Ten Percent rate.

The account was turned over to its attorney on the sixth month (June), and this action resulted. Appellee sought to recover the unpaid service charges, except for June, as part of the total balance past due. As of that time, according to appellee’s calculations, the annual rate billed appellant was at most 8.7% on the total amount due.

To constitute usury, the evidence must be clear and convincing that there was an intent to charge more than 10% interest on the open account. Bunn Lbr. Co. v. Weyerhaeuser Co., 268 Ark. 445, 598 S.W. 2d 54 (1980). Here the case was tried as an issue of fact by a circuit judge, sitting as a jury, after the effective date of Rule 52 of the Arkansas Rules of Civil Procedure. Therefore, the standard of review on appeal is not whether there is any substantial evidence to support the finding of the court, but whether the judge’s findings were clearly erroneous (clearly against the preponderance of the evidence). Taylor v. Richardson Const. Co., 266 Ark. 447, 585 S.W. 2d 934 (1979). It is unnecessary that both parties intend that an unlawful rate of interest be charged; if the lender alone charges or receives more than is lawful, the contract is void. Cagle v. Boyle Mortgage Co., 261 Ark. 437, 549 S.W. 2d 474 (1974). The intent required is not an intent to violate the usury laws, but an intent to receive or reserve a rate of interest that proves to be usurious. First Amer. Nat'l. Bk. v. McClure Const. Co., 265 Ark. 792, 551 S.W. 2d 550 (1979).

The appellee argues that the amount of interest charged did not exceed the maximum amount allowed by law when computed over the entire length of time of the charges, and any method employed to compute these charges is irrelevant if the dollar amount charged does not exceed the dollar amount that appellee is entitled to charge on all past due balances when figured on an annual basis. Also no contract existed between the parties for a usurious amount of interest. Therefore the usury penalty is not applicable.

We first observe that we are unimpressed by appellee’s argument that no contract actually existed on the open account between the parties. See Redbarn Chemicals v. Bradshaw, 254 Ark. 557, 494 S.W. 2d 720 (1973); and Bunn Lbr. Co. v. Weyerhaeuser Co., supra. Appellee’s reliance on Winkle v. Grand Nat'l. Bank, 267 Ark. 123, 601 S.W. 2d 559 (1980) is misplaced. It contends that the “life of the loan” concept was applied there and is applicable here. There, however, notes and security agreements were in issue. Here, there is no way to determine the “life of the loan” since this is an open account. Redbarn, supra, and Bunn, supra, deal with an open account. In Redbarn we said:

. . ..Redbarn introduced proof tending to show that if all its twelve monthly finance charges during the calendar year 1970 were added together, the overall interest rate would be only 9-69%, despite the excessive charge [1%] in April. That theory of the case is not supported by the proof. There is no suggestion that interest was charged by the year rather than by the month. In fact, an annual charge would have been impossible, because the amount of the open account varied from month to month as debits were added and credits were given. The creditor’s intention was undoubtedly to impose a finance charge upon each monthly balance. Hence the present argument is actually an effort to retroactively purge the account of the taint of usury which cannot be done . . .

Here the balance of the open account, billed monthly, varied as debits were added, including service charges. Only one payment was made which was reflected on the June statement with the resulting balance. Further, no evidence existed in either Redbarn or here that the debtor knew the charges were being made on any basis other than monthly. Here the terms of the interest appearing on the monthly statements merely gave notice to the purchaser that a service charge or interest would be assessed, which would be 12% “or maximum allowed by law.” There is nothing in the invoices, monthly statements, or other evidence that appellant was ever made aware that appellee’s practice was to partial bill and eventually flag the account at the end of 6 or 7 months to avoid billing service charges which would total in excess of the 10%, the lawful rate, or that a higher rate of interest would be applied by appellee in the earlier months and then decreased as the rate of interest neared the maximum allowed by law.

As indicated, here there were monthly computerized statements billing appellant for a 1% service charge. The monthly statements included the amounts billed on these separate invoices. Suit was filed to collect these monthly service charges as part of the total balance due. Despite appellee’s testimony that its method of billing was a “partial billing” and its practice was to “flag” the Arkansas accounts to avoid a 12% annual interest, the evidence is clear and convincing that appellee sought by its monthly billing and this action to collect 1% per month on past due open accounts. Certainly the debtor, appellant, was unaware of appellee’s silent intention to “partially” bill and “flag” its account to avoid exceeding the legal rate of interest. Furthermore, we reject the practice of appellee as evidenced by the invoices ■ reflecting the billing of service charges. The credit manager of appellee testified that they used a system of underbilling during the first of the period as an incentive to pay the account. Although the invoice states “net 30 days”, the witness explained by an example that they customarily did not bill a service charge for some two and one-half months after he claimed that the accrual of interest actually began. He attempted to explain the inconsistency by saying that appellee “waived” the service charge if the account was paid before the service charge was billed. We disapprove this double system as a method of avoiding usury laws of this state. In the circumstances, we hold the transaction constituted usury and, therefore, the trial court’s finding to the contrary was clearly erroneous.

In view of this determination, it is unnecessary to consider appellant’s contention that the evidence justified a setoff for damaged materials.

Reversed and dismissed.

Fogleman, C.J., Hickman and Mays, JJ., dissent. -

John A. Fogleman, Chief Justice,

dissenting. It appears to me that this court has established a standard of review in usury cases that is different from that applied in other cases. The appellant had the burden of showing clearly that appellee contracted for, extracted or received usurious interest. Poole v. Bates, 257 Ark. 764, 520 S.W. 2d 273; Textron, Inc. v. Whitener, 249 Ark. 57, 458 S.W. 2d 367. We have said that the plainest principles of justice require that the defense of usury be clearly shown. Arkansas Real Estate Company v. Buhler, 247 Ark. 582, 447 S.W. 2d 126. The circuit court held that appellant had failed to prove its affirmative defense and counterclaim, which included allegations raising the -issue of usury. This court should not overturn that holding unless it is clearly against the preponderance of the evidence. Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W. 2d 559 (1980).

The usury charge, an affirmative defense and counterclaim in appellee’s suit to recover for merchandise sold to appellant, allegedly was imposed by appellee’s “Levying” service charges of: $241.83 on an unpaid balance of $24,183.36 as reflected by an invoice dated February 20, 1978, $241.83 on a balance of $25,298.36 as reflected by an invoice dated April 4, 1978, $449.21 as reflected by an invoice dated May 30, 1978, and $370.14 as reflected on an invoice dated June 23, 1978.

The evidence showed that the service charges reflected by appellee’s invoices amounted to a total of $1,752.22. Each of the numerous statements sent appellant by appellee bore the typed (or computer printed) statement, “NET 30 DAYS.” They also contained the following statements: “PAST DUE AMOUNTS WILL BE SUBJECT TO SERVICE CHARGES. EFFECTIVE ANNUAL RATE 12% OR MAXIMUM ALLOWED BY LAW.” This clearly showed that the terms of sale of the goods called for payment of the net price shown by each invoice within 30 days, that service charges would be made on past due accounts and that the effective rate was either 12% or the maximum allowed by law. All appellant had to do to avoid any service charge was to pay the account when it became due. This, in itself, should be a sufficient basis for affirming the judgment. Harris v. Guaranty Financial Corp., 244 Ark. 218, 424 S.W. 2d 355; Carney v. Matthewson, 86 Ark. 25, 109 S.W. 1024.

It is clear from the testimony and exhibits presented that invoices were issued for each charge made and that the monthly statements rendered by appellee listed all unpaid invoices issued but indicated separately the invoices that were past due, i.e., those which had been issued more than 30 days prior to the date of the statement. The statements included only unpaid charges.

According to appellee’s assistant treasurer and credit manager, the net charge shown on an invoice was due 30 days after the date of the invoice, as clearly indicated on the statements, but the company had a monitoring system to assure compliance with the statement that service charges would be billed at the rate allowed by law. The first billing of service charges would go out more than 60 days after invoices had been sent out. Each billing was for the amount of a flat 1% of past due items, but would result in a charge less than that allowed by law, because of the lapse of time between the date the invoices were due and the date of billing. As additional billings went out, the company checked them against the total allowable under the law of the state having jurisdiction in order to see that the billing did not exceed the amount allowed by law. Service charges were billed by a computer, but Arkansas and Tennessee accounts were monitored so the computations could be checked to see that the allowable maximum had not been exceeded. This witness said that the company had determined that after nine months, the effective rate would amount to 7-1/2%, so, between the sixth and seventh months, they checked by manual computations to be sure there was no problem. He said that the total service charges allowable as of May 30, 1978 would have been $1,-706.21, but that appellant had been billed for only $1,382.08 in service charges. He also testified that on June 23, 1978, the total interest allowable would have been $2,023.14 but the total billings were only $1,752.22.

The only evidence that the service charges were usurious was the testimony of an accountant who found excessive interest charges by assuming that the service charge was applicable only to an invoice that was over 60 days old. His explanation of his reason for doing so is rather baffling because he said that there was no pattern on the time for the charge and that computations of service charges based on either amounts due 30 days from the due date or on invoices that were over 60 days old resulted in the same charge each month. His efforts to explain his 60-day assumption are absolutely contrary to the statements on the statements rendered. Accordng to this witness, “net 30 days” meant that there was no charge for 30 days and that 30 more days had to expire before a charge could be imposed. There was no basis for this assumption. The trial court correctly stated, and the witness once agreed, that there could be a charge, computed on the basis of one day, on the thirty-first day. But the witness could not answer “yes or no” when asked if that was what he had computed. The accountant, even then, figured the rate of interest only on the basis of the particular month in which an invoice for interest was issued. He ignored the fact that no charge was made during April, even though the balance past due on April 22 was exactly the same as the balance due on March 18. He positively stated that each month stood on its own in his calculations.

Neither the act of usury, nor the intent to charge, reserve or receive unlawful interest, will be presumed, or imputed, to the parties or inferred if the opposite conclusion can be fairly and reasonably reached. First American National Bank v. McClure Construction Co., 265 Ark. 792, 581 S.W. 2d 550; Davidson v. Commercial Credit Equipment Corp., 255 Ark. 127, 499 S.W. 2d 68; Commercial Credit Plan, Inc. v. Chandler, 218 Ark. 966, 239 S.W. 2d 1009; Cammack v. Runyan Creamery, 175 Ark. 601, 299 S.W. 1023; Briggs v. Steele, 91 Ark. 458, 121 S.W. 754; Key v. Worthen Bank & Trust Co., 260 Ark. 725, 543 S.W. 2d 496; McCoy Farms, Inc. v. McKee, 263 Ark. 20, 563 S.W. 2d 409, cert. den. 439 U.S. 862, 99 S.Ct. 184, 58 L.Ed. 2d 171; Pulpwood Suppliers, Inc. v. Owens, 268 Ark. 324, 597 S.W. 2d 65 (1980).

Appellee’s officer used the correct test for usury, i.e., was the debtor required to pay more over the term the debt was outstanding than he could legally have been required to pay? Davidson v. Commercial Credit Equipment Corp., supra. This is exactly the method used in Parks v. E. N. Beard Hardwood Lumber, Inc., 263 Ark. 501, 565 S.W. 2d 615, where we affirmed a summary judgment holding that the interest charges were not usurious. Actually Parks is authority supporting the trial court’s judgment in this case. The majority has not attempted to distinguish it. I submit that it cannot be distinguished. Certainly, there is a stronger case here than there was in Parks in view of the testimony of the company official as to the monitoring system used by appellee and to appellee’s clear recognition on its statement forms that the transactions were subject to the legal maximum interest rate. The trial court believed this witness. Is the majority saying that his testimony was incredible?

The statement as to the service charge is not a disavowal or disclaimer. Obviously, it appeared on the statements because appellee did business in Arkansas and Tennessee and knew of the limitations in those states. It is a limitation on the maximum service charge. As such, it was at least a strong circumstance to be considered by the trier of facts. Lyttle v. Mathews Investment Co., 193 Ark. 849, 103 S.W. 2d 47. Actually its impact is greater than a mere circumstance. It should be given the same effect as was given a like statement in Taylor v. Van Buren Building & Loan Ass’n., 56 Ark. 340, 19 S.W. 918. There we said:

***[I]n the three mortgages involved in this case there could not be usury, because in each it is provided that “it is also understood that in no instance shall any claim be made by said building association for any interest or any moneys mentioned herein, or any money in lieu of interest, which shall exceed the rate of ten per cent per annum.” It would seem that there can be no usury in a contract that expressly provides that no unlawful interest shall be paid, unless in fact the transaction was a device or cloak to cover usury. ***.

Even if it could be said that the contract is ambiguous, it is the duty of the courts to so construe a contract so that it would be legal, if it is subject to one construction that would make it legal and another that would render it illegal.

The penalty for usury is forfeiture of both principal and interest. Citizens Bank v. Murphy, 83 Ark. 31, 102 S.W. 697. Every effort should be made to interpret a contract favorably to its enforcement and to prevent a forfeiture. Scrinopskie v. Meidert, 213 Ark. 336, 210 S.W. 2d 281. When there are two probable conflicting interpretations of a contract, and one would render the contract unlawful and the other lawful, the courts should adopt the latter construction. Gauss v. Orr & Lindsey, 46 Ark. 129. It is the duty of the courts, when contracts are fairly susceptible of more than one construction to adopt a construction which will not work a forfeiture. Singer Manufacturing Co. v. Brewer, 78 Ark. 202, 93 S.W. 755; Scrinopski v. Meidert, supra. As between reasonable constructions, one of which would make the contract unenforceable and the other would make it enforceable, the latter will be preferred. Hastings Industrial Co. v. Copeland, 114 Ark. 415, 169 S.W. 1185.

The majority does not seem to rely very heavily on Redbarn Chemicals, Inc. v. Bradshaw, 254 Ark. 557, 494 S.W. 2d 720. It is easily distinguished. In the first place, we there affirmed a circuit court’s finding of usury, when review of a trial judge’s findings called only for a determination whether they were supported by substantial evidence. Furthermore, in that case monthly computerized statements including a service charge had been sent to the debtor for a full year before the charge in question there was ever imposed. On the other hand, the statements clearly show that the service charge here was to be based upon an annual rate, not a monthly one. That was not the case in Redbam.

I do not see how this court can avoid affirming the circuit court judgment.

I am authorized to state that Mr. Justice Hickman and Mr. Justice Mays join in this dissent.


author: Darrell Hickman, Justice.

text:
    Robert Lee WHITE v. STATE of Arkansas
    CR 80-12
    605 S.W. 2d 11
    Supreme Court of Arkansas
    Opinion delivered September 29, 1980

      John W. Achor, Public Defender, by: James H. Phillips, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., and James P. Dowden, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Robert Lee White was convicted in Pulaski Circuit Court of burglary, three counts of rape and three counts of robbery. He was sentenced to three life terms for the rapes; 10 years imprisonment each for the robberies and 20 years for the burglary, all to run consecutively. On appeal he raises two procedural issues. He argues that his confession was erroneously admitted as evidence and that a victim-witness was improperly allowed to tell the jury she had identified White at a pretrial lineup.

We find no merit to either argument and, finding no other errors that would require us to reverse White’s conviction, affirm the judgment.

The evidence regarding White’s confession consisted essentially of the testimony of two police officers and White. White was taken to the station at about 1:15 p.m. on July 26, 1977. Both officers testified that there were no promises, threats, or coercion involved in obtaining White’s statement. According to the officers, White was advised of his rights at 1:15 p.m. and again at 6:50 p.m. on that same day.

White denied that he made any statement at all or that he was advised of his rights at 1:15 p.m. or at 6:50 p.m. His testimony was that he was never advised of his rights until after the alleged statement was taken.

White’s argument on appeal is that because he was held for about five hours subject to interrogation, his statement was not reliable and should not have been admitted. He also points out that the officers contradicted each other concerning the availability of a tape recorder. The trial court determines whether a statement is voluntary and we review that decision by examining the totality of the circumstances and then deciding if the trial court’s decision was against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). Certainly, on the evidence presented in this record, we cannot say the trial court was wrong.

Only one of the three victims could identify White. The alleged crime took place at a residence where the three victims lived. At a lineup, the legality of which is not in issue, one of the victims identified White as her assailant. During her testimony, more than two years later and in response to a question by White’s attorney, she replied that she had identified White previously- at a lineup.

■ The argument to us is that such a statement is inadmissible, prejudicial, and grounds for a mistrial. The case of Trimble & Williams v. State, 227 Ark. 867, 302 S.W. 2d 83 (1957) is cited as authority for that proposition. It is not controlling. In Trimble two police officers were permitted to testify in the State’s case in chief that they saw a prosecuting witness identify the accused in a lineup.

That is not what happened in this case. The victim gave this answer after she had been cross-examined extensively about- her identification of White and the description of him that she had given to the police. She contended that she gave the police officers a general description of the height, weight, and face of her assailant. Apparently, there was nothing on the police report to show this. Since she conceded that she had only gotten a glimpse of her assailant’s face, that statement was the subject of cross-examination. Finally, White’s attorney asked her, “Q. Yet you never .at any time gave any description as to lips, nose, eyes, hairs, marks or anything about the man’s face or any physical characteristics?” Her answer was, “I identified him positively in the lineup.”

The trial court held that the subject had been opened up by the cross-examination and we agree with that decision. Her credibility had been questioned and it was not prejudicial error for her to make the statement concerning prior identification. Bishop v. State, 236 Ark. 364 S.W. 2d 676 (1963).

Affirmed.


author: John I. Purtle, Justice. John A. Fogleman, Chief Justice,

text:
    Don A. WILSON v. Anna Jo WILSON
    80-118
    606 S.W. 2d 56
    Supreme Court of Arkansas
    Opinion delivered September 29, 1980
    Rehearing denied November 3, 1980

      Shaver, Shaver & Smith, by: Tom B. Smith, for appellant.

      Sharp & Morledge, P.A., for appellee.
   John I. Purtle, Justice.

Appellee was awarded a decree of divorce from the appellant on December 4, 1978. Additional motions, pleadings, and arguments were subsequently submitted to the court. An amended decree was entered on March 5, 1979, and a final decree entered of record on September 24, 1979.

On appeal appellant urges four points for reversal: (1) Ark. Stat. Ann. § 34-1211 and § 34-1214 are unconstitutional; (2) appellee should have been held liable for one third of the income tax liability; (3) appellee was awarded more than one third of the personal property; and, (4) the award of alimony and child support was excessive.

We hold the appellant did not timely raise the constitutionality of the statutes; we are unable to determine from the record whether the decree required appellant to pay any of appellee’s income taxes; the court did not err in the division of the personal property; and, the alimony and child support awards are now moot.

On August 25, 1978, appellee filed a complaint for divorce and determination of child custody, alimony, and property rights. The parties were married on June 19, I960. The parties have two children, ages 10 and 11. The appellant filed an answer and counterclaim against the appellee. In a letter opinion dated October 10, 1978, and filed for record November 8, 1978, the court granted appellee a divorce and set forth the property division, custody, support, alimony, and attorney’s fees. A formal decree was filed for record on December 4, 1978.

The decree of December 4, 1978, awarded custody of the minor children to the appellee subject to reasonable visitation by the appellant. The wife was awarded ownership of an automobile which was subject to a lien, and she was ordered to pay the lien. The decree awarded the wife the majority of the household furniture. Appellee was also awarded one third interest for life in the lands owned by the appellant and one third interest absolute in the farm equipment and a camper, subject to existing liens. Finally, appellee was awarded one third of the net proceeds for the 1978 crops which had not yet been gathered. The husband was awarded two pickup trucks, a boat, motor, guns, hunting and fishing equipment. Appellant was ordered to pay $344 per month child support and $300 per month alimony on a temporary basis. The court held for later determination any interest appellee might have in a flying service, PCA membership certificates, and certain bonds and stocks.

Appellant filed a brief on December 19, 1978, in which he questioned the division of the property and the constitutionality of the divorce statutes.

On January 2, 1979, a supplemental decree, dated December 13, 1978, was filed of record. The court disposed of the matters which had been held in abeyance in the original decree of December 4, 1978. Appellee was awarded a one third interest in the Cullum note for $5,000. She was denied any interest in the other items which had been held for further consideration. The court continued to hold under submission the matter of whether the wife should be held responsible for any of the income tax resulting from the sale of the 1978 crops.

Appellee filed a motion for reconsideration of the court’s holding that she was entitled to an interest in the stocks and bonds and other certificates of indebtedness. By letter opinion dated January 7, 1979, and filed for record on February 14, 1979, the court amended the decree to allow appellee an interest in the stocks and bonds and certificates of indebtedness. The court also granted appellant the right to rent appellee’s share of farm equipment for the year 1979 and further stated if appellant did not rent her interest, for the sum of $2,200, the equipment would be ordered sold by the court. The court refused to reduce the child support and alimony as requested by appellant. The opinion further stated that the provisions of the Arkansas statutes relating to property rights were mandatory.

A petition to eliminate alimony was filed on March 1, 1979. On March 5, 1979, the court entered an order finding there had been no change of circumstances to justify modification of support or alimony payments. This order repeated provisions of earlier orders relating to rental of farm equipment or, in the alternative, the sale of equipment and gave an award of one third of the personal property to the appellee.

Apparently, appellant rejected the rental alternative on the farm equipment, and it was ordered sold on March 19, 1979- Appellee was awarded one third of the net proceeds of the sale which was held on March 28-, 1979- The subsequently filed report of sale was entered on April 11, 1979, showing the proceeds to be $101,689-90. Due to the debts owed, there were no net proceeds to be divided.

The appellant filed a motion on March 22, 1979, requesting discontinuance of alimony payments to the wife and sought a refund of the $1,500 previously paid as alimony. The argument was that the alimony was based upon an unconstitutional statute. The motion further argued the holding in Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed. 2d 306 (1979), and that the circumstances of the parties had changed. On the same date the appellee filed a motion requesting appellant to be ordered to sell the 1978 rice crops which had been harvested.

The court filed another letter opinion on April 23, 1979, in which it stated the Orr v. Orr, supra, case had not yet been read by the court and that the General Assembly had enacted Act 705 of 1979 which very likely cured any defects in the prior orders of the court.

The appellant filed a motion for reconsideration on June 4, 1979- He sought reconsideration of the decree of December 4, 1978. He further questioned the reconsideration which the court had entered on March 5, 1979. Appellant again argued the constitutionality of the Arkansas divorce statutes and quoted Orr v. Orr, supra, as well as Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475, (1979). On June 8, 1979, the court entered an order requiring appellant to make the child support and alimony payments for April, May and June, 1979. The court took under consideration the motion to reduce child support payments and dissolve alimony payments as well as the matter of income taxes. On July 12, 1979, the court filed an additional order. This order dissolved the alimony as of August 31, 1979, and held the child support payment in the original amounts was proper. The court further held the matter of the income tax under consideration.

The court filed a final order and judgment September 24, 1979. The court reiterated prior holdings and disposed of the matter of the 1978 crops and appellee’s interest in appellant’s personal property by requiring the appellant to pay the appellee the sum of $16,159.66 for her total interest in these items. This order also held the appellee was entitled to one third interest in the appellant’s shop equipment. The net result of this judgment seemed to reaffirm the court’s earlier decisions granting the appellee an undivided one third interest in the appellant’s personal property and a one third interest for life in the lands owned by the appellant. The court denied the appellant’s claim that the appellee be held liable for any part of the state and federal income taxes resulting from the sale of said personal property and crops.

The notice of appeal is from the judgment of the court rendered on September 24, 1979.

The divorce decree was entered on December 5, 1978. The respective attorneys had been notified of the contents of the proposed decree by a letter from the court dated October 10, 1978. There were many subsequent orders and several amendments to the decree until the order and judgment were entered of record on September 24, 1979- There was no appeal from the initial decree. This appeal is from the order and judgment of September 24, 1979.

The constitutionality of Ark. Stat. Ann. § 34-1214 was not mentioned until December 19, 1978, when the appellant filed a brief with the court. The other statute, Ark. Stat. Ann. § 34-1211, was not questioned until March 22, 1979- The court was not called upon to rule on the constitutionality of the statutes at any time during the trial or at any time prior to entry of the original decree. We have held many times that the trial court must be presented with the constitutional issue before we will consider it on appeal. Gross v. Gross, 266 Ark. 186, 585 S.W. 2d 14 (1979); Williams v. Edmondson & Ward, 257 Ark. 837, 250 S.W. 2d 260 (1975); and Kroha v. Kroha, 265 Ark. 170, 578 S.W. 2d 10 (1979). In Kroha we refused to consider the constitutionality of Ark. Stat. Ann. § 34-1214 because it was not raised in the pleadings or mentioned in the decree.

On June 4, 1979, appellant filed a motion for reconsideration of the decree of December 4, 1978. He relied upon Orr v. Orr, supra; and Hatcher v. Hatcher, supra. Both Orr and Hatcher were decided subsequent to the decree of December 4, 1978, and cannot be made applicable retroactively to matters previously decided by the court.

The final order was entered on September 24, 1979. the final decree disposed of only three items: (1) appellant’s motion for reconsideration of the prior orders awarding appellee one third interest in his personal property; (2) the request to charge appellee with one third of appellant’s income tax liability on the sale of the farm equipment and crops for 1978; and, (3) the request for additional attorney’s fees by appellee’s attorneys. The motions for reconsideration and additional attorney fees were denied. Appellee was awarded the sum of $16,159-66 as her interest in appellant’s personal property which was the amount agreed upon by the parties. This award included her interest in the crops and all the personal property owned by appellant. The court held that appellee was divested of any interest whatsoever in any personal property owned by the appellant except for an undivided one third interest in appellant’s shop tools. Of course, the court reaffirmed the prior decision granting the appellee a one third interest for life in the lands owned by the appellant. The final decree denied appellant’s request to require appellee to pay one third of the income tax due from the sale of the 1978 crops and the farm equipment.

The appeal in this case is from the final decree of September 24, 1979. The appeal necessarily includes all prior interlocutory orders and decrees entered by the court during the pendency of this action. The interlocutory orders will be considered as of the date of their entry, and the law applying at that time is controlling. The constitutionality of Ark. Stat. Ann. § 34-1211 and § 34-1214 was not raised prior to the time of the entry of the first decree of November 8, 1978; therefore, these statutes controlled the action of the court and fixed the limitations of its power at that time.

Subsequent to the final decree, the alimony was discontinued, and the child support was reduced. Child support is a matter which may be reviewed by the court at any time, even after the final decree is entered. The final decree also found that the parties had agreed that one third of the personal property and crops amounted to $16,159-66, and the order was entered in that amount. Therefore, the appellant has no grounds to complain about the division of the personal property. We cannot determine from the record whether the court made an award of exactly one third of the personal property to the appellee. It appears that the division of the property was substantially in compliance with the statutory requirements. In any event, if we treat Act 705 as being in effect at the time of the final decree, we find the chancellor did not abuse his discretion in the division of the property. Appellee’s interest in the appellant’s real estate had been determined at the time of the original decree when there is no doubt that Act 705 had no application.

In support of our holding that all preceding orders are reviewable upon appeal from final judgment, we refer to Festinger et al v. Kantor et al, 264 Ark. 275, 571 S.W. 2d 82 (1978). In Festinger we held where interlocutory orders were entered deciding questions of law that were pertinent to the impending trial of the case on its merits, where neither order disposed of the case nor purported to do so, an appeal from the order should have been delayed until a truly final decree was entered. In each of the orders entered by the court prior to the decree of September 24, 1979, the chancellor specifically held in abeyance certain items which were to be decided later. Therefore, it is obvious the court never intended to terminate the case until the final decree was entered. We have reviewed all of the orders and treated them at timely appealed. In support of this manner of handling the appeal, we refer to Rules of Appellate Procedure, Rule 2(a), and Rules of Civil Procedure, Rule 54(a).

The final order determined that appellee was not responsible for any of the state or federal income taxes due as a result of the sale of the 1978 crops or the farm machinery and equipment. We are unable to determine from the record whether appellant’s income taxes were actually increased as a result of the manner in which the property was divided. There were no proceeds to be divided between the parties as a result of the sale of the farm equipment and machinery; however, there was apparently a tax liability resulting from the sale. The parties had previously filed joint tax returns.

It seems obvious the appellee would include in her income the proceeds she received from the 1978 crops. Appellant’s argument indicates he was charged with all of the taxes due from the sale of the 1978 crops as well as the liability incurred as a result of the sale of the machinery and equipment. It is not clear from the record whether the court took this matter into consideration as part of the division of the personal property when it ruled the appellee did not owe any of these taxes; however, we assume the court considered tax liability along with the other property rights.

Affirmed.

Fogleman, C.J., concurs.

John A. Fogleman, Chief Justice,

concurring. There are some parts of the majority opinion and the results reached with which I cannot agree. I do not agree that the issue of the constitutionality of Ark. Stat. Ann. §§ 34-1211 and 34-1214 was raised too late for it to be considered as to any facet of the case. Any doubt about the constitutionality of these two sections has been dispelled. I agree that appellant raised the question too late to affect the decree of December 4, 1978. In that decree the court stated:

There is a dispute between the parties as to whether Plaintiff should be awarded any interest in certain other items of personal property, among them being Cullum Flying Service Claim, PCA membership certificates, and other stocks and bonds. The Court will hear further evidence and argument on these issues before making a ruling.

The award of a one-third interest in the Cullum note was made in a decree filed January 2, 1979. The court also held that appellee was not entitled to any interest in five United States “E” bonds, or in stock of the Cross County Farmers Association, the Production Credit Association or Riceland Foods. The court reserved the question of appellee’s responsibility for income taxes. Appellant’s brief questioning the constitutionality of the statutes was filed on December 19, 1978, before the decisions in Orr v. Orr, 440 U.S. 268, 99 S. Ct. 1102, 59 L. Ed. 306 (1979) and Hatcher v. Hatcher, 265 Ark. 681, 580 S.W. 2d 475 were rendered. This was also before the decree was signed by the chancellor. There was a hearing on December 13, 1978, but there is no indication in the abstract of the record that the court rendered its decision on that date. That issue, in my opinion, was raised by appellant’s brief before this decree was signed. I am not aware of any statute, procedural rule or case law that requires that the question of constitionality of a statute be raised only in a formal pleading.

On the date of the entry of the decree of January 2, 1979, appellee filed a motion for reconsideration of the court’s decree insofar as it related to the stocks and bonds in which she had been denied any interest. A hearing was had on January 15, 1979, and the chancellor rendered a letter opinion in which he treated the motion for reconsideration. In that part of the opinion the court held that, under Ark. Stat. Ann. § 34-1214, it was mandatory that appellee be awarded a one-third interest in appellant’s personal property. The chancellor found that the decree upon which the motion for reconsideration was based should be modified to award appellee an undivided one-third interest in appellant’s stock in Riceland Foods and in his interest in Cross County Farmers Association. An order putting the chancellor’s opinion into effect was entered on November 2, 1979- Appellant raised the issue of constitutionality again in a motion for reconsideration which was denied.

I do not pretend to understand all the facets of the position of this court expressed in Hatcher and in Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 1, except to the extent that the inherent powers of equity have been expanded so that property awards are not necessarily based on statutes, at least when no statute in in effect. I maintain the position expressed, that in Sweeney the court rejected the idea that the rights of the parties were fixed when the divorce decree was rendered. It appears that the court is now ready to hold that the rights of the parties become fixed by the granting of the divorce, saying that Ark. Stat. Ann. §§ 34-1211 and 34-1214 fixed the limitations of the court’s power. This is the position I took in my dissent in Sweeney but I thought it had been rejected. I could agree that the modification of the court’s decree to award an interst in the corporate stocks was justified on that basis. It must not be forgotten that the chancery court did not exercise the general powers of equity in making this award. The award was specifically made on the basis that the statute was mandatory and the court had no option. From reading that court’s opinion, I doubt that it would have made the award under its inherent equity powers.

I must question the application of the Rules of Civil Procedure to this appeal. As I view the record, these rules were not in effect at the time the notice of appeal was given.


author: John F. Stroud, Justice. John I. Purtle, Justice,

text:
    Earnest Lee COMBS v. STATE of Arkansas
    CR 80-104
    606 S.W. 2d 61
    Supreme Court of Arkansas
    Opinion delivered September 29, 1980
    Rehearing denied November 3, 1980

      E. Alvin Schay, State Appellate Defender, by: Deborah Davies Cross, Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies'Scott, Asst. Atty. Gen., for appellee.
   John F. Stroud, Justice.

Appellant was convicted by a jury of being a felon in possession of a firearm and sentenced to five years’ imprisonment. He appeals, alleging that the trial court should have granted a mistrial due to the prosecutor’s misconduct, should have excluded proof of the nature of his prior felony, and should have suppressed the firearm from introduction into evidence. We find no reversible error and affirm the conviction.

On March 29, 1979, two officers of the North Little Rock Police Department in separate cars went to a motel in response to a call that a woman was being held at gun point in room 25. They arrived at the motel simultaneously, saw three persons standing just outside of room 25, and overheard them arguing. As the officers approached, the three went into the room just as a female said, “Let me go. Let me go.” When the officers entered the open door without a search warrant, two women and a female impersonator ran past them out of the room. The officers then sought to check the identification of the three men who remained. When appellant was asked for identification, he told the officer it was on the chest of drawers and that he could get it himself. As the officer turned his back on appellant while walking toward the chest, appellant started to move his hand toward his pocket. The other officer had moved behind appellant, saw a pistol in appellant’s pocket and was able to grab appellant’s hand and disarm him. The officer who seized the loaded pistol had recognized appellant and knew that he had previously been convicted of murder. Appellant and the other two men were promptly placed under arrest. At the pretrial hearing, appellant moved to suppress the gun from introduction into evidence on the grounds that it had been unlawfully seized and moved in limine to prevent the State from proving the specific felony he had previously committed, but both motions were denied. Following his conviction on October 5, 1979, of being a felon in possession of a firearm, appellant brings this appeal urging three points for reversal.

Appellant first contends that the trial court erred in denying his motion for a mistrial due to the repeated misconduct of Deputy Prosecutor William Crowe during the trial. Appellant recites a number of Mr. Crowe’s statements and questions as evidence of his persistent misconduct; however, almost half of the comments occurred at the pretrial hearing rather than at the trial. No prejudice could have resulted from comments made out of the presence of the jury.

Of the incidents complained of by appellant that occurred in the presence of the jury, we find only the following remarks of Mr. Crowe, made during closing argument, to have been of significant impropriety:

. . . and what drew his attention? That the defendant was going for the gun. He was making a move for the gun. And the officers didn’t even have their guns out.
What it all boils down to is this: But for the grace of God and the quick thinking and reaction of Jeral Howard, you might be considering hejre today two counts of capital felony murder against this man.

Defense counsel promptly objected to both of these remarks. The trial court overruled the first objection and said that Mr. Crowe’s statement was only argument and not an element of the offense charged, but the court sustained the second objection and admonished Mr. Crowe, “That’s your speculation and that’s not evidence in this case. Just argue the facts in this case.” The trial court had, as a part of its standard instructions, previously instructed the jury that the arguments of counsel were not evidence and any statements made by counsel having no basis in the evidence should be disregarded. After the closing arguments were completed and the jury had retired to deliberate, defense counsel moved for a mistrial on the grounds that the appellant had been prejudiced by the remarks of Mr. Crowe made during his closing argument. The trial court denied the motion, ruling that it was untimely and that any prejudicial effect of the remarks had been removed by the admonition to Mr. Crowe and the court’s instruction that the jury disregard any argument of counsel having no basis in the evidence. A mistrial is an extreme remedy which should be granted only where the error is so prejudicial that justice cannot be served by a continuation of the trial. Spillers v. State, 268 Ark. 217, 595 S.W. 2d 650 (1980); Johnson v. State, 254 Ark. 293, 495 S.W. 2d 115 (1973). We agree with the trial court that appellant’s motion for mistrial was not timely and that the admonitions cured any prejudice; however, some of the comments and trial tactics of Mr. Crowe border on overzealous prosecution, which we do not condone.

Appellant next contends the trial court erred in refusing to grant his motion in limine to exclude evidence of the nature of his prior felony conviction. Ark. Stat. Ann. § 41-3103 (Repl. 1977) provides, in part:

(1) No person who has been
(a) convicted of a felony; . . . shall possess or own any firearm.

When it became apparent at pretrial hearing that the State planned at trial to introduce into evidence a certified copy of the judgment of conviction of appellant for second degree murder, appellant sought to have that portion of the judgment deleted that indicated the specific felony he had previously committed. He contended that the jury need only know that he had committed a felony, and that the specific nature of the crime was irrelevant; he now adds, in view of having received the maximum five year sentence;, that its introduction was obviously prejudicial.

The conviction of a prior felony is one of the elements of the offense charged, and the prosecuting attorney certainly has the right, and for that matter the duty, to attempt to prove every element of the offense. Additionally, the nature of the prior felony and the facts here surrounding the incident leading to appellant’s arrest do reflect on the seriousness of the crime and are relevant in the determination of sentence. If these factors were not meant to be considered in sentencing, the General Assembly could have provided for imprisonment for a definite term upon conviction of a felon in possession of a firearm rather than allowing the jury to impose any sentence not in excess of five years. Ark. Stat. Ann. § 41-901(d) (Repl. 1977). Accordingly, we hold it was not error for the trial court to refuse to grant appellant’s motion in limine to exclude evidence of the nature of appellant’s prior felony conviction.

Appellant’s final point for reversal is that the trial court erred in not granting his motion to suppress the weapon from introduction into evidence due to its unlawful seizure by the police officers. Appellant contends the motel room, was his residence and, as such, was a private place subject to the general requirement of a search warrant in the absence of exigent circumstances. Appellee contends, citing Warden v. Hayden, 387 U.S. 294, 299, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967), that even if appellant was due the same privacy in a motel room as in a home, a warrantless entry of a dwelling would not be violative of the Fourth Amendment where the circumstances were such that “the exigencies of the situation made that course imperative,” and “where delay in the course of an investigation would endanger the officers’ lives or the lives of others.” We agree with appellee. The police officers were responding to a call that a woman was being held at the motel by a man with a gun. When they arrived, they saw a woman and two men standing outside the room in question, engaged in what appeared to be an argument. When the three men saw the officers, they went into the motel room. As the officers approached the motel room, they heard a woman saying, “Let me go. Let me go.” All of these factors were corroborative of the information given to the police in the initial call for assistance. The officers entered the room through the open door and proceeded to investigate the situation. It was at this point the gun was seized from appellant. The actual seizure of the weapon is readily justified as necessary to prevent the assault of a police officer or as proper pursuant to Rule 3.4 which allows a search for weapons without an arrest or search warrant when the officer “reasonably suspects that the person is armed and presently dangerous to the officer or others.” There are rarely clearer circumstances for the immediate search and seizure of a weapon than when an officer actually sees the weapon in the pocket of a person he knows to be a convicted felon.

The only real question is whether the officers were lawfully present in the motel room inasmuch as they did not have an arrest or search warrant. Pursuant to Warden v. Hayden, supra, we find that the exigencies of the situation at the time of the officers’ entry into the room excused the warrant requirement of the Fourth Amendment. Rule 14.3(a) of the Arkansas Rules of Criminal Procedure provides that an officer may enter premises without a search warrant if he has reasonable cause to believe that there are individuals therein “in imminent danger of death or serious bodily harm.” It was clearly reasonable for the officers at the time they entered the motel room to believe that there was a great risk of serious bodily harm to someone in that room.

The dissenting opinion engages in hindsight by saying that once the three women left the room, no one else remained in the room in danger of harm. In the first place, the record reflects that the women left the room when the officers entered and not before they entered. In the second place, the officers had no way of knowing how many women were held in the room until they did enter. It would be utterly ridiculous and the worst police work imaginable to suggest that the officers should have exited the room without any investigation immediately behind the three women upon noting that no other women remained in the room. The dissent also indicates that this opinion holds that a hotel room is a public place. This opinion does not make that holding and, in fact, never reaches that question inasmuch as the exigencies of the situation justify the entrance in either event. Accordingly, the judgment of the trial court is affirmed.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the majority in this case.

I will first discuss the failure of the trial court to suppress the evidence, i.e., the handgun. Admittedly, the officers’ went into a privately rented motel room without a search warrant or an invitation. The officers were of the same opinion as the trial court when the court stated:

The intrusion at this point was harmless. There was a disturbance of some kind. The door was open. It was a public place.

It appears the officers, the trial court, and my brothers here feel a hotel room is a public place. I absolutely disagree. Many people are going to be shocked to learn that an officer may wander into their motel or hotel rooms as long as the door is open. We have never held this to be so, and no case has been cited which so holds. In my opinion, a person has the same right of privacy in a hotel room as he has in his home in the country. Under this theory, if people were creating a disturbance in my yard and I opened the door to see what was happening, the officers would be authorized to enter my home and seize anything they deemed appropriate.

The United States Supreme Court clearly stated in Stoner v. Calif., 376 U.S. 483 (1964), that the occupant of the hotel room was entitled to the same constitutional protection against searches and seizures as are tenants of a house or boardinghouse. See also Johnson v. United States, 333 U.S. 10; and McDonald v. United States, 335 U.S. 451.

The majority tacitly admits the validity of the above statement, although not directly, but seeks to evade it by arguing this was an exception to the rule. Rules of Criminal Procedure, Rule 14.3(a), is the vehicle the majority has seized to bypass what I believe to be a constitutional right of the appellant. This rule states:

An officer who has reasonable cause to believe that premises or a vehicle contain:
(a) individuals in imminent danger of death or serious bodily harm; or
(b) things imminently likely to burn, explode, or otherwise cause death, seious bodily harm, or substantial destruction of property; or
(c) things subject to seizure which will cause or be used to cause death or serious bodily harm if their seizure is delayed;
may, without a search warrant, enter and search such premises and vehicles, and the person therein, to the extent reasonably necessary for the prevention of such death, bodily harm, or destruction.

The facts of this case clearly reveal there was no one in imminent danger of harm. The officers never testified that they had even a suspicion that anyone there was in danger at the time. Three of the people had departed, and the three remaining were at most arguing among themselves inside the motel room. It seems the persons who are said by the majority to have been in danger were the officers, after they had made the unauthorized entry into a privately rented room. The women left when the officers entered the room. Obviously, they were not in danger of harm. No one else is alleged to have been threatened or in danger. The appellant was one of the people who was a guest in the room. I do not believe the facts of this case come close to creating exigent circumstances which would allow a warrantless search into this private room.

Since the trial court was under the erroneous impression Room 25 was a public place, its ruling may well have been to suppress had it been the opinion the room was entitled to the sanctity of a home, which I believe is clearly the law. This was not a situation where an officer had the right ot bring Rules of Criminal Procedure, Rule 12, into action. Rule 10.1(a) defines a search as an intrusion under color of authority of an individual’s person, property or privacy. This is exactly what the facts of this case reveal. Such search was clearly prohibited by the Constitutions of Arkansas and the United States.

We treated a somewhat similar search of a person’s motel room in Haynes v. State, 269 Ark. 506, 602 S.W. 2d 599 (1980). In Haynes we suppressed the evidence when the officers walked into a defendant’s room and seized it without a warrant. S. Ct. 1371 (1980); and Riddick v. New York, 445 U.S. _, 100 S. Ct. 1371 (1980), where it was stated:

It is a “basic principle of the Fourth Amendment law” that searches and seizures inside a home without a warrant are presumptively unreasonable. Yet it is also well-settled that objects such as weapons or contraband found in a public place may be seized by the police without a warrant. The seizure of property in plain view involves no invasion of privacy and is presumptively reasonable, assuming that there is probable cause to associate the property with criminal activity. The distinction between a warrantless seizure in an open area and such a seizure on private premises was plainly stated in G. M. Leasing Corp. v. United States, 429 U.S. 338, 354, 50 L. Ed. 2d 530, 97 S. Ct. 619: ***

Therefore, the entry into Room 25 of the motel was illegal, and the evidence should have been suppressed.

So far as the actual seizure of the weapon is concerned, Officer Howard stated:

— He had a shirt on and I observed the grips sticking out and I grabbed for it. When I did, that’s when he grabbed for it too. I touched it first and then he had his hand on it. He put his hand on it.

The officer further testified the weapon was fully loaded and ready to fire. The charge was a felon in possession of a firearm. It was not necessary to prove more. He did not recognize the appellant until he entered the motel room. Officer Howard somewhat unresponsively stated he knew the appellant had been convicted of murder. He had been convicted of second degree murder, a somewhat lesser offense. It was not a proper statement and should have been corrected on the spot by the trial court.

I will not mention several other instances where the prosecutors or the officers added prejudicial information to answers or questions which had already been properly answered. I must add a statement from the state’s closing argument which I feel was grounds for a mistrial. After stating appellant was going for his gun, a statement I do not believe is supported by the record, Mr. Crowe stated:

What it all boils down to is this: But for the grace of God and the quick thinking and reactions of Jeral Howard, you might be considering here today two counts of capital felony murders against this man.

There was no evidence in the record to support such statement, and it could only serve to inflame the minds of the jury. It left the impression the appellant intended to murder two officers in the performance of their duty. Although the court ruled the remark out of order upon appellant’s objection, the damage had been done. A belated motion for a mistrial was made and overruled. I think the court correctly summarized the state’s conduct when it stated:

However, I think, Mr. Crowe, you knew or should have known that that was improper argument and I consider that you did it calculatedly. And also that you guesstimated that the worst thing that the court would do would be to admonish you not to do it anymore and instruct the jury to disregard it. If you did it deliberately, don’t do it anymore.

Obviously, the prosecuting attorney correctly predicted the court would slap his hands and let it go. The trial court was put in a very awkward position by the state. No matter how much it embarrassed the other parties, the appellant is serving time now. Although it might be of little or no lasting benefit to appellant, I would reverse and remand for a new trial.


author: Richard L. Mays, Justice. John I. Purtie, Justice,

text:
    Clay JACKSON et al v. PETIT JEAN ELECTRIC CO-OP
    80-112
    606 S.W. 2d 66
    Supreme Court of Arkansas
    Opinion delivered September 29, 1980
    Rehearing denied November 3, 1980

      Brazil & Roberts, and Chester C. Lowe, Jr., for petitioner.

      Wright, Lindsey & Jennings, for respondent.
   Richard L. Mays, Justice.

We granted certiorari to consider the question of tort liability of an employer to employees of an independent contractor.

Respondent, Petit Jean Electric Cooperative Corporation, entered into a construction contract in June, 1973 with Johnson Construction Company, an independent contractor, to rebuild new transmission and distribution lines of its electric transmission system. In January, 1979, Clay Jackson, an employee of Johnson Construction Company and a petitioner herein, was seriously injured when his body came into contact with a hot wire while working on respondent’s energized lines. Jackson recovered under the workers’ compensation act from Johnson Construction Company’s worker’s compensation insurance carrier, Seaboard Fire and Marine Insurance Company, also a petitioner herein, and sought to recover for the same injuries by filing a civil action against Petit Jean on the theory of negligence and strict liability.

Jackson alleged that Petit Jean not only breached its common law duty of due care but breached the duty of care which it affirmatively assumed toward employees of Johnson Construction Company under the construction contract. Further Jackson alleged in an amended complaint that even if Petit Jean were not negligent, Petit Jean should be liable for physical harm caused by the negligence of Johnson Construction Company, since the work it entrusted to Johnson Construction Company was inherently dangerous. In response to Petit Jean’s motion for summary judgment, after Seaboard Fire and Marine Insurance Company intervened, the trial judge dismissed the action, finding no genuine issue of material fact regarding Petit Jean’s liability. On review by the Court of Appeals, the judgment was affirmed.

It is generally recognized that an employer of an independent contractor owes a common law duty to the contractor’s employees to exercise ordinary care for their safety and to warn against any hidden dangers or unusually hazardous conditions. See Gordon v. Matson, 246 Ark. 533, 439 S.W. 2nd 627 (1969). Relying upon this general principle, Jackson alleges that Petit Jean breached its duty by failing to insulate or isolate its hot wires and failing to de-energize its lines during the work hours of the independent contractor. Under the facts that are entirely without dispute, and giving Jackson the benefit of every contested fact and all favorable inferences, we find no basis in the record for imposing any duty upon Petit Jean to isolate or de-energize its lines or to warn employees of an electrical contractor that the work as contracted for would be dangerous if not done properly. Certainly, it cannot be seriously contended that Petit Jean should isolate lines from the employees of an electrical contractor whose compensation and contractual obligations expressly contemplate working around energized lines. The duty of an employer of an independent contractor to use ordinary care or to warn of latent dangers does not comtemplate a duty to warn of obvious hazards which are an integral part of the work the contractor was hired to perform.

Petitioners also allege that Petit Jean had a duty to require Johnson Construction Company to provide sufficient safety devices and proper supervision for its employees. Petitioners predicate such a duty upon language in the construction contract which reserved for Petit Jean the right to alter the size of the work force and the quality and type of tools and equipment used on the job, as well as the right to inspect and approve the work. Such language does not impose any special duties upon Petit Jean for the safety and well being of Johnson Construction Company’s employees. See, Akins v. Okla. Gas & Electric, 433 F. Supp. 1345 (W.D. Ark. 1977). Petitioners concede that Johnson Construction Company was an independent contractor, as opposed to a servant of Petit Jean, and the record clearly establishes that Petit Jean did not exercise any supervision or control over the manner and actual details of the work. Since Petit Jean neither promised nor undertook to supervise Johnson Construction Company’s performance, Petit Jean owed no contractual duties to Johnson Construction Company’s employees.

It is also argued that Petit Jean should be liable to Jackson because it negligently selected an incompetent contractor to perform inherently dangerous work. Assuming, without deciding, that Petit Jean owed a duty to Jackson to select a competent contractor, we find inadequate facts in the record to raise a material issue of negligent selection. Although Johnson Construction Company has limited experience in high-voltage electrical work, its superintendent, with whom Petit Jean was familiar, possessed substantial electrical experience. The record contains no evidence that Petit Jean had any reason to believe that Johnson Construction Company was incapable of adequate performance at the time the contract was entered into.

Finally, irrespective of any negligence on the part of Petit Jean, petitioners contend that the negligence of Johnson Construction Company should be imputed to Petit Jean because of the inherently dangerous nature of the work. Although the general rule is that an employer is not responsible for the negligence of his independent contractor, petitioners rely upon a well-recognized exception which extends liability when the work which the employer delegates to an independent contractor is inherently dangerous. Southwestern Bell Telephone Co. v. Smith, 220 Ark. 223, 247 S.W. 2nd 16 (1952). The exception is grounded in a recognition that the possibility of harm to others is so great when the work activity is inherently dangerous that the law tolerates it only on terms of insuring the public against injury. We impose vicarious liability under these circumstances to insure that the public has legal access to a financially responsible party. The exception was obviously intended to protect those who have no direct involvement with the hazardous activity, are only incidentally exposed to its risks and have no direct means of insuring themselves against loss. Since employees of an independent contractor are directly involved in the hazardous activity, have knowledge of the risks and are insured against injury by worker’s compensation, we perceive no sound justification for expanding the exception to include persons it surely was not designed to protect. See e.g. Corban v. Skelly Oil Co., 256 F. 2nd 775 (5th Cir. 1958) (applying Arkansas law), and Morris v. City of Soldotna, 553 P. 2nd 474 (Alaska 1976).

Affirmed.

Purtle, J. dissents.

John I. Purtie, Justice,

dissenting. In my opinion, the facts of this case are adequately stated in the majority opinion. This dissent is based upon the contract between respondent and the independent contractor, Johnson Construction Company. The owner-respondent specifically reserved the right to control the number of employees doing the work for Johnson. It also retained control over the quality and type of equipment to be used on the job. Additionally, it reserved the right to inspect and approve, as well as to effectually supervise, the working conditions of Johnson’s employees.

The complaint alleged respondent was negligent in failing to require the independent contractor to provide adequate tools and equipment, sufficient safety devices, and proper supervision of the employees of Johnson. The above duties and responsibilities were reserved to the respondent in the written contract. The complaint further alleged that the respondent was engaged in an inherently dangerous type of work which by common law required the respondent to exera high degree of care regardless of the contract between it and Johnson.

The judgment in the trial court did not contain findings of fact and conclusions of law. Apparently, the judgment was entered upon the theory that an employee of an independent contractor could not sue the owner. This simply is not the law as I understand it. An owner or prime contractor may be liable to an employee of a subcontractor or independent contractor when the prime contractor or owner is guilty of negligence by failure to use ordinary care or to warn the employees of unusually hazardous conditions which might affect the employees’ safety. Aluminum Ore Company v. George, 208 Ark. 419, 186 S.W. 2d 656 (1945).

Certainly, the complaint, with all reasonable inferences deducible therefrom, stated a cause of action. After the interrogatories and testimony, I do not feel that all such inferences were removed. The trial court must review the record, on motion for summary judgment, in the light most favorable to the party opposing the motion, and all doubts are resolved against the moving party. New Hampshire Ins. Co. v. Quilantan, 263 Ark. 892, 569 S.W. 2d 102 (1978).

In my opinion, the owner reserved the right to completely control the performance of the work and, in doing so, placed itself in a position of being responsible for its negligence which may not have been true in the absence of these provisions of the contract.

It appears to me the facts could be interpreted to reveal the respondent simply placed the independent contractor in a position to insulate itself against the exact type of negligence and disability claimed by the petitioner. In other words, it attempted to contract away its negligence and common law duty to the petitioner. It was the respondent who actually directed the work and controlled the conditions and equipment which were being used at the time the petitioner was injured. It was not the independent contractor’s negligence which caused the injuries of petitioner, or at least the jury may have so found. I think the respondent was the prime contractor on this project and certainly would be responsible for acts of negligence or failure to perform duties which it owed to petitioner.

Without prolonging this dissent, I will simply state that I believe there remained a genuine issue of fact which should have been left to the jury to decide.


author: Ernie E. Wright, Chief Judge.

text:
    Reginald WILLIAMS v. STATE of Arkansas
    CA CR 80-23
    606 S.W. 2d 75
    Court of Appeals of Arkansas
    Opinion delivered October 1, 1980

      McArthur & Lassiter, P.A., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Pewell, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

Appellant was tried before the court with jury waived and found guilty of theft of propery, a misdemeanor, in violation of Ark. Stat. Ann. § 41-2203;

On appeal he asserts insufficiency of the evidence to support the finding of guilt and that the trial court erred in allowing hearsay testimony over appellant’s objection.

Appellant was employed at a Safeway Store in Little Rock. While operating a cash register at a checkout stand, his supervisor noticed appellant rang up a total of $3.20 on the cash register for a customer who had two bags of merchandise and some large boxes of diapers. After the customer had moved a short distance away from the checkout stand the supervisor called her back and requested appellant to re-ring the items and a retabulation showed a total of $21.65. Appellant told the supervisor the $3-20 purchase shown on the tape belonged to the previous customer. However, the copy of the tape in the register matched the only tape in the customer’s basket. Later appellant told the supervisor the customer told him she had previously purchased the items in one of the bags and she was merely buying a few additional items totaling $3.20. The customer had twelve items of merchandise and the tape showed only eleven items. Only six items on the tape matched the actual price of the items.

On appeal a finding of guilt is affirmed if there is any substantial evidence to support it. In reviewing the evidence we recognize it is the function of the trial court or jury, as the case may be, to weigh the evidence and consider the credibility of witnesses. We, therefore, consider only the evidence that is most favorable to the appellee. McCree v. State, 2 66 Ark. 465, 585 S.W. 2d 938 (1979).

Appellant testified he rang up everything the customer told him to ring up, the total was $3-20, and that the customer told him she had previously purchased some of the merchandise.

Upon careful examination of the evidence we conclude the finding of guilt is supported by substantial evidence, and that there was evidence from which the court could conclude the appellant made an unauthorized disposition of merchandise belonging to Safeway for the purpose of depriving the owner of the merchandise. Brown v. State, 258 Ark. 360, 524 S.W. 2d 616 (1975).

Appellant contends the court erred in permitting the supervisor to testify over appellant’s hearsay objection to two statements made by the customer at two different times with reference to the transaction. The supervisor testified that 45 minutes after the customer’s purchase had been rung up, the customer stated she had paid appellant $23.11 for the groceries; and that she called the supervisor by phone the following night and told him she had paid appellant $3.20 and she wanted the $20.00 back. Apparently the customer was referring to $20.00 she had supposedly previously paid for the first lot of groceries she testified she purchased. These statements were not made in the presence of appellant. In response to the appellant’s hearsay objection to the statements the state stipulated the statements were not offered to prove the truth of the content of the statements.

The court allowed the statements to come into the record and the record implies the court reversed a final ruling on the objection until the contents of the statements were disclosed. Appellant did not later renew the objection and the court never did rule on the competency of the statements. At trial the customer testified on behalf of appellant that she had bought two bags of groceries and after going out of the store recalled some items she needed and went back and got some additional items; that the question about the correctness of the checkout occurred on the second trip through the store; that she purchased diapers and some other items on her first trip; that she told appellant at the checkout on her second trip what additional items she wanted rung up; that she later told the supervisor before she left the store she wanted either her money back or her groceries and he told her all he could refund was $3.20; and that since she did not have a tape receipt for anything other than the $3.20 receipt.

Since the out of court statements the supervisor testified the customer made to him were not offered to prove the truth of the statements, the testimony was not hearsay and therefore not subject to exclusion on that ground. Rule 801 (c) Uniform Rules of Evidence. It is not apparent the statements were competent when offered in evidence by the state prior to the customer testifying as a witness for the defendant. The testimony might have had some relevance for the purpose of impeaching the testimony of the customer after the customer testified. However, appellant only made the hearsay objection. Absent valid objection to the testimony, we do not on appeal consider the asserted error in the admission of the testimony. Rule 103 (a) (1), Uniform Rules of Evidence; Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972); Powell v. State, 270 Ark. 236 (1980).

When objection to testimony is made on a single ground all other objections to the testimony are waived. United States v. Wolfson, 322 F. Supp. 798, 454 F. 2d 60, Certiorari denied, 92 S. Ct. 1792.

Even if a valid objection had been made to the supervisor’s testimony as to statements made by the customer, since the customer testified at trial and the trial was before the court with jury waived, appellant has failed to show he was prejudiced.

Affirmed.


author: James H. Pilkinton, Judge.

text:
    Doyle WATKINS et ux v. Rickey Eugene DUDGEON
    CA 80-171
    606 S.W. 2d 78
    Court of Appeals of Arkansas
    Opinion delivered October 1, 1980

      Charles A. Yeargan and William G. Wright and Don P. Chancey, for appellants.
    No brief for appellee.
   James H. Pilkinton, Judge.

This is an adoption case. Appellee is the father of Russell Eugene Dudgeon, the minor child involved. Appellants are not related to the child by blood but have cared for Russell practically all of his life. Appellants filed this suit in an effort to adopt the child, and the father has resisted. The probate court found that although appellants were certainly good parents and qualified to rear the child, the father was also a fit and proper person to have custody. On the theory that the law favors custody being awarded to a natural parent, appellants’ petition was dismissed. They have appealed from the judgment of the probate court dismissing their petition for adoption.

The child involved here was born on May 9, 1976. Appellants were next door neighbors and helped to take care of the little boy, often on a full-time basis, from the time he was four weeks old. On December 9, 1976, when the child was only seven months old, appellants moved from Dallas, Texas, to Bonnerdale, in Garland County, Arkansas; and, with the written consent of the father and the oral agreement of the mother, took the child with them. The evidence shows that the natural parents were having domestic and financial difficulties at the time and could not care for the child.

On January 31, 1977, custody of Russell was returned to appellee and his wife. Appellants were told that the parents had reconciled their differences and were to resume living together in Dallas. As things worked out, a reconciliation did not occur. The child actually lived exclusively with the mother in a one-room apartment in Dallas until April 16, 1977. During this period appellee would visit with his son occasionally while the mother had the child. On April 16, 1977, the mother once again returned the child to the home of the appellants. On August 9, 1977, appellee visited briefly with the child at the home of the appellants in Arkansas. The record reflects that the father did not contribute to the support of the child at any time while his son was in the custody of the appellants.

On February 9, 1978, appellants filed a petition to adopt the child with the written consent of the natural mother attached, and on April 17, 1978, the first hearing was held with the appellee appearing and objecting to the adoption. The probate judge ordered home studies by the social services agencies of Arkansas and Texas. After these reports were obtained upon the appellants and appellee, a subsequent hearing was held on April 3, 1979. No decision was reached, as additional home studies and psychological evaluations were ordered to be performed. After the last home study reports were received, final judgment was entered on September 21, 1979.

Appellants first contend that the consent of the natural father was not required in this case as the father had, for the period of at least one year, failed significantly without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law. The appellee admitted at the hearing that he had failed to financially contribute to the support of the minor child; that he had only minimal contact with the child during the little boy’s entire life; and that the little boy had lived with appellants practically all of his life.

The revised Uniform Adoption Act, Ark. Stat. Ann. § 56-201, et seq., (Supp. 1979), provides at § 56-206:

(a) Unless consent is not required under Section 7 [§ 56-207], a petition to adopt a minor may be granted only if written consent to a particular adoption has been executed by:
(D...
(2) Father of the minor, if the father was married to the mother at the time the minor was conceived or any time thereafter, . . .

Under § 56-207 consent to adopt is not required of a parent of a child in the custody of another, if the parent for a period of at least one year has failed significantly without justifiable cause (i) to communicate with the child, or (ii) to provide care and support of the child as required by law or judicial decree.

It is settled law that statutory provisions involving the adoption of minors are strictly construed and applied. Woodson v. Lee, 221 Ark. 517, 254 S.W. 2d 326 (1953); Roberts v. Swim, 268 Ark. 917, 597 S.W. 2d 840 (Ark. App. 1980). It is also true that the conduct of a parent who has failed significantly without justifiable cause to communicate with his child or provide for the support of a child as required by law, must be willful in the sense of being voluntary and intentional. It must appear that the parent acted arbitrarily and without just cause or adequate excuses. Roberts v. Swim, supra; Pender v. McKee, 266 Ark. 18, 582 S.W. 2d 929 (1979); Harper v. Caskin, 265 Ark. 558, 580 S.W. 2d 176 (1979). However, this father has failed significantly for a period of one year to support his child without justifiable cause. The evidence is sufficient when tested by the “clear and convincing rule” now effective in such cases to show that he has so failed. Pender v. McKee, supra; Harper v. Caskin, supra. That fact does not preclude him from objecting to this proposed adoption, or from being fully heard in the matter. It means that he cannot defeat the adoption by simply withholding his consent. The law requiring a father to support his minor child has been declared by statute. Ark. Stat. Ann. § 57-633 (Repl. 1971). It was also appellee’s legal obligation, independent of any court order or statute, to support his small son. Brown v. Brown, 233 Ark. 422, 345 S.W. 2d 27 (1961); McCall v. McCall, 205 Ark. 1123, 172 S.W. 2d 677 (1943). This he failed to do, and Ark. Star. Ann. § 56-207 applies.

The phrase “failed significantly” for a period of one year to support his child or to communicate with him “without justifiable cause” certainly does not mean “failed totally”, although this father did fail totally to support his minor son. As pointed out in Pender v. McKee, supra, it only means that the failure to support or communicate must be significant as contrasted with an insignificant failure. Without reviewing all of the testimony in detail, the record contains sufficient facts, many of which are uncontroverted, to establish by clear and convincing evidence that this father has forfeited his right, otherwise available to him as a natural parent, to withhold consent to this adoption. The obvious purpose of the applicable statute is to provide a child with a real father instead of one who, by his conduct, has proven to be a father by blood only. Although the legislature cannot force a man to be a father within the proper meaning of that term, it can and has afforded a judicial method whereby a child may have an opportunity to experience the benefits of having a real father by adoption. Our statute permits the courts, where the proper circumstances present themselves, to grant a petition for adoption to petitioners who demonstrate true love, affection and care for a child, regardless of the arbitrary dissent by a natural father. Pender v. McKee, supra; Brown v. Fleming, 266 Ark. 814, 586 S.W. 2d 8 (1979).

Like the court below, we recognize the heavy burden which the law places upon one wishing to adopt a child against the consent of a parent. Roberts v. Swim, supra. We also recognize that other things being equal the law favors natural parents over others in custody cases. However, the rights of parents are not proprietary and are subject to their correlated duty to care for and protect the child; and the law secures the preferential rights of parents only so long as they discharge their obligations. Parental rights are not to be enforced to the detriment or destruction of the happiness and well being of the child. Pender v. McKee, supra.

Upon a careful review of the record as a whole, we are convinced that the judgment of the probate court is clearly erroneous (clearly against the preponderance of the evidence). Rule 52, Ark. Rules of Civil Procedure. While the father’s situation did improve somewhat during the period this case was pending (due to his remarriage and his discontinuation of some undesirable traits), a clear preponderance of all of the evidence shows that the two homes and other factors having a bearing on the welfare of the child are not equal. We hold that the court erred in refusing to grant the adoption, and in returning the child .to the father. As already pointed out, appellee’s consent to the adoption was not required under the circumstances; and the record clearly shows that the welfare of the child will best be served by granting the adoption. This determination is consistent with the facts of the case, and does not deprive the father of any rights he has not heretofore by his conduct or neglect voluntarily surrendered or waived.

Reversed and remanded with instructions to grant the petition for adoption.