author: Oahleton Harris, Chief Justice.

text:
    David Turner v. William O. Rosewarren, et al
    5-4883
    440 S.W. 2d 769
    Opinion Delivered May 5, 1969
    [Supplemental opinion on Rehearing delivered June 9, 1969, p. 1301.]

      Irwin & Street and Edgar Woolsey for appellant.

      J. Marvin Holiman for appellees.
   Oahleton Harris, Chief Justice.

This is á guest

liability case. On October 22, 1966, Betty Rosewarren was a passenger in a car driven by David Turner, appellant herein, the young people being out on a date. Approximately three miles north of Clarksville on State Highway 103, Turner lost control of the car, and collided ■with a vehicle belonging to Rosa Smith, Miss Rosewarren receiving severe injuries. Thereafter, William O. Rosewarren, as father and next friend of Betty, instituted suit against Turner in the Circuit Court of Johnson County, alleging injuries to his daughter, and asserting that Turner was guilty of willful and wanton negligence in the operation of his automobile, same being the proximate cause of the injuries to Betty. The case was tided on October 21, 1968. At the conclusion of the testimony on behalf of Miss Bosewarren, appellant moved for a directed verdict, the motion being denied by the court. No evidence was offered on behalf of Turner, and appellant again moved for a directed verdict, the motion again being overruled. Nine of the twelve jurors returned a verdict in favor of appellee in the sum of $15,000.00, and from the judgment so entered, appellant brings this appeal. For reversal, it is simply asserted that the evidence was insufficient on the question of willful and wanton misconduct of Turner to warrant submission of the case to the jury.

The evidence relied upon by appellee to establish willful and wanton operation of the Turner automobile is as follows:

Mrs. Helen Stewart, who lives near Clarksville, testified that, on the night of October 22, 1966, she drove north on Highway 103 for the purpose of going to the Woodland Church on Harmony Boad, where a Halloween party was being held. Her children were in the automobile with her. When she reached Harmony Boad, a point at which she would, if continuing on, start the ascent of a hill, she signaled a left hand turn, and about the same time an automobile, traveling south, came over the crest of the hill.

“We were almost to the turnoff when a car come over the hill pretty fast, and I taken the shoulder of the road to keep it from hitting me. It was weaving.”

She was unable to estimate the speed of the approaching vehicle, but said, “It wasn’t holding the lino —his line. Well, it was sort of taking the yellow line every once in a while.” Mrs. Stewart said she moved over partly to the shoulder of the road to avoid any possibility of beiug hit. The witness made her turn, went on to the church, and did not know of the occurrence of an accident until sometime later.

Her daughter, Karen, testified that the car came over the hill as they were getting ready to turn off of Highway 103, and that “it was going pretty fast.” When asked what was meant by the expression, she replied, “Ob, around 85 or 80 or something.”

Rosa Smith, sister-in-law of Mrs. Stewart, was also traveling the same route for the purpose of attending the Halloween party. Pier three children were in a station wagon with her, and she was behind Mrs. Stewart, a car driven by Mrs. Lula Baker being between the Stewart and Smith Ambicies. Mrs. Smith described events, as follows:

“Well, I was taking my children — I haAm three —to church that night. They were having a Halloween party, and Ave Avas going out the Harmony highway, and just before Ave got to the turning, off place my sister-in-law was in front of me, and there Avas a car following her, and I Avas quite a ways back, and just as she turned her flicker lights on, this other car — he come around — you know — she passed him, and it looked like the car almost run into the back of that other car—
“Q. Do you know who Avas in the car behind your sister-in-law1?
“A. They said it was a Mrs. Baker. And this car come right straight at me in my lane until he got almost down to me, and when he started in my lane I throwed on my brakes and stopped so he could have time to get back over on his side of the road, and just before he got to me he got over on his side of the road, and it looked like he straightened up, and then he lost control and come right straight over in front of me and slid sideways, just like he was on ice, right into the front of my car.”

Mrs. Smith said that the car was going “about as fast as it could go * * * going about 80, I imagine.” She said the car was traveling “almost that fast” when her station wagon was struck.

Dobbra Smith, 15 years of age, riding with her mother, testified that she was unable to estimate the speed of the Turner vehicle. This was all of the evidence relating to the wreck itself.

In addition, Mrs. Ruth Rosewarren, Betty’s mother, testified that, at the Clarksville hospital that night, she asked David what happened, and he replied, “I don’t know. I guess I’m not a very good driver.” Betty’s father, William Rosewarren, said that David told him, “I guess it’s my fault, I’m not a very good driver.” Mrs. Jewell Phillips, employed at the hospital as a nurse at the time, testified that, as she was pushing David on a stretcher around to the suture table, Betty raised up, looked at David, and said, “Oh — -no, no. I told you you couldn’t make it.” She said that David made no answer, but stated she was not qualified to say whether he was physically able to do so. Mrs. Phillips also said that she was not qualified to state whether Betty was in shock, nor would she say that the young woman was conscious. “She was screaming. She was screaming each word she said, and she was screaming constantly. She was being sutured under local anesthetic.”

Betty, 18 years of age, testified with unusual and commendable frankness. With the exception of one fact, hereafter mentioned, she said that she did not remember anything that happened immediately before the accident and she only remembered that immediately after the collision, she heard screams, and suddenly realized that she was the person screaming. The witness said that she and David had been dating for about a year, and that, on the night of October 22, they were on their way to Clarksville, though they had not decided what they were going to do. She stated that David was not drinking, and all she remembered about the accident was seeing lights. “It felt like the lights were right against my face, and I shoved my hand up like this, against the windshield, to shield my face. ’ ’ She remembered nothing after being blinded by the lights, and was not able to say whether David was driving fast or slow, or why he lost control of the car. Subsequently, on redirect examination by her own attorney, she testified that David was a good driver, and had always been a good driver prior to this occasion; that there had been times when she had called him down for speeding, but he always slowed the car when she requested it. “I never had to call him down very often. He never drove that fast.” She said that she was always frightened in an automobile that was being driven fast; that David knew of this fear, and that he always honored her on that point; further, it had never been necessary to call him down for “showing off” in a car.

We think the evidence falls shoi't of establishing willful and wanton negligence. It has been pointed out bv this court that, whether an automobile is being operated in such a manner as to amount to wanton and willful conduct in disregard of the rights of others, must be determined by the facts and circumstances of each particular case. Splawn, Admx. v. Wright, 198 Ark. 197, 128 S.W. 2d 248.

Appellee relies upon four cases, which we will discuss, but it might be here stated that we do not consider Hint any are authority for affirmance of the present judgment. The first is Cooper v. Chapman, 226 Ark. 331, 289 S.W. 2d 686. There, the evidence showed that Cooper was driving 100 miles per hour, and Cooper admitted that one of his passengers, Mrs. Chaplain, told him he was “flying too low without wings.” Though stating that he did not know that he was traveling over 100 miles per hour at the time, Cooper did sar^ that the car would go that fast, and that he had driven it at 115 miles per hour. There was testimony that all passengers importuned Cooper to slow down. Certainly, that case is distinguishable from the instant litigation.

In Tiner v. Tiner, 238 Ark. 222, 379 S.W. 2d 425, whore four children were killed, and other persons severely injured, the evidence as to willful and wanton negligence of Berlin Tiner reflected that Tiner himself stated that shortly before the collision there began a torrential rain; that he went into the rain asa“ sheet or wall of rain;” that his car skidded and “fish-tailed” on the slick asphalt road, so much so that the rear of the automobile was in front of the motor, and that visibility during this £<sheet or wall of rain” was practically nil. A witness testified that the Tiner car entered the rain at a speed of 80 miles per hour, and there was no lessening of that speed up to the time of the collision. There was also evidence that Tiner had said that he could have gone to the ditch on the road on his right side, but did not want to damage his car.

Tn Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226, appellant’s automobile (a young lady being a guest in the car) was traveling at a speed of 45 miles per hour on a heavily traveled highway at a time when visibility due to fog was not more than 50 to 100 feet; nonetheless, Harkrider proceeded to try and pass a cattle truck, and was hit head on by an oncoming automobile.

In Henshaw v. Henderson, 235 Ark. 130, 359 S.W. 2d 436, there was not only evidence of speed at 80 miles per hour, but evidence that the driver was drinking. In fact, one of the young ladies in the car testified that, when she left her premises to go to his car, ££he kinda stumbled once.”

So — in Cooper, passengers were begging the driver to slow down, and Cooper admittedly had driven his automobile at high speeds on other occasions; also, it was established that the reason Cooper lost control of his car was the terrific speed. Here, Turner’s prior driving record was good, nor is there any evidence that anyone asked him to slow down; nor is it established that Turner lost control of the car because of willfully ■moving at a high speed. It will be noted that the other three cases all included factors that contributed to the finding of willful and wanton driving in addition to speed. In ''finer, there was a “wall of rain,” with practically no visibility. ffarlcrider, involving the effort to pass a vehicle in a dense fog, speaks for itself. And in Ilenshcno, there was evidence of drinking.

Let us summarize the evidence in this case. In the first place, there is no testimony with regard to what caused Turner to lose control of his car. The automobile was apparently out of control at the time the first witness viewed it. Was it because of negligent driving? Failure of brakes? Other mechanical defect? Could he have been blinded by the lights of the oncoming cars? This last has some support in the testimony of Miss Rosewarren. The evidence of this young lady, who had been da ling appellant for about a year, and seemed entirely familiar with his driving habits, does not indicate appellant to he a driver who deliberately, intentionally, or wantonly, on October 22, performed acts that he should have known would likely result in danger to his passenger. While appellee’s witnesses (Mrs. Smith and Miss Stewart) were likely completely sincere in their estimate of Turner’s speed as 80 or 85 miles per hour, physical facts do not indicate this to be true. A photograph of the Smith car is in the record, and it certainly does not appear, from the amount of damage shown, that the Smith vehicle was struck with that much force. The proof also shows that the windshield of the Smith ear was not broken, and, though seat bolts were not being used, no one was thrown from the station wagon. We find no significance in David’s remark that he guessed he wasn’t a good driver. Here was a young man, depressed and distracted, because of the injuries to his friend, as well as to himself, who might well have felt blame because he was the driver of the car. At any rate, there are numerous persons who would not be considered good drivers, but who, nonetheless, do not drive willfully or wantonly' — just incompetently.

Nor do we find great significance, under the circumstances, in the remark made by Betty as she was rolled through the hospital screaming, very likely in shock. The comment would mean but little, even if it were known that she referred to some particular circumstance. David’s failure to answer his friend, screaming with pain, likewise establishes nothing, even if he were fully aware of what she had said.

Basically, because there is no showing of why the Turner automobile went out of control, we think the evidence falls short of establishing the requisite degree of negligence.

Reversed and dismissed.


source: Caselaw Access Project

author: Lyle Brown, Justice. John A. Fogleman, Justice.

license: Public Domain

text:
    Woodrow Cook, Special Adm’r v. Andy Bevill
    5-4865
    440 S.W. 2d 570
    Opinion Delivered May 5, 1969
    [Rehearing denied June 2, 1969.]

      Oscar Fendler for appellant.

      Graham Partlow, Jr. for appellee.
   Lyle Brown, Justice.

Appellant Woodrow Cook, administrator of the estate of Elijah J. Bryeans, deceased, and appellee Andy Bevill, each claim ownership of the proceeds of a certificate of deposit issued in the names of E. J. Bryeans or Andy Bevill. Since the certificate was dated April 18, 1967, resolving the issue requires an interpretation of Acts 78 and 444 of 1965. This is a case of first impression under those acts. The chancellor, in awarding the proceeds to Bevill, applied Act 444.

Elijah Bryeans held a deposit box at Farmers Bank of Blytheville when he.died intestate in September 1967. lie had placed in the lockbox two certificates of deposit. One was in the principal sum of $10,000 and in Mr. Bryeans’ name only. The other certificate was in the sum of $8360 and was issued in the form “E. J. Bryeans or Andy Bevill.” The depositor signed nothing. Mr. Bryeans purchased the certificates with his individual funds and he alone was given a key to the lockbox. His heirs apparently consisted of two sisters, one of whom was the mother of Andy Bevill. There was a close re-lat ions hip between the uncle and Ms nephew. Mr. Bryeans was in ill health during the last eight years of his life and Andy was very attentive to him. It was the banker’s recollection that Mr. Bryeans expressed an intention that Andy Bevill have the proceeds of the deposit made in the two names in the event of Mr. Bryeans ’ prior death.

There are three legislative enactments to be considered. They are Act 260 of 1937, appearing in Ark. Stat. Ann. § 67-521 (1947); Act 444 of 1965, digested in Ark. Stat. Ann. § 67-521 (Repl. 1966); and Act 78 of 1965, Ark. Stat. Ann. § 67-552 (Repl. 1966). Although Act 260 was amended by Act 444 we think Act 260 is significant in shedding light on the intent of the Legislature when it enacted Act 444. After a careful analysis of the enumerated acts we conclude that Act 444 is not a survivorship statute, as was its predecessor, Act 260. In that respect we disagree with the chancellor.

Prior to 1965 we had one short statute dealing with the rights of parties in bank deposits standing in two names. That was Act 260 of 1937. Here are the pertinent parts, including the title:

AN ACT Defining Rights of Parties in Bank Deposits in Two Names and Providing for the Payment of the Same.
When a deposit shall have been made by any person in the name of such depositor and another person and in form to be paid to either, or the survivor of them, such deposit thereupon and any additions thereto made by either of such persons, upon the making thereof, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to either during the lifetime of both, or to the survivor after the death of one of them; and
such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge to said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing signed by an}^ one of such joint tenants not to pay such deposit in accordance with the terms thereof.

Act 260 had a twofold purpose. It protected the bank in making payments from deposits in the names of any two persons; and it declared “a definite and conclusive relation of the parties to such deposit on the death of either...” Pye v. Higgason, 210 Ark. 347. 195 S.W. 2d 632 (1946). The modification of Act 260 by Act 444 was preceded by the passage of Act 78. The provisions of Act 78 have an important bearing on our interpretation of Act 444 and for that reason Act 78 should first be discussed.

Act 78 was approved February 12, 1965. It was our first comprehensive enactment governing joint bank accounts. Two years previously a very similar act was passed affecting joint deposits in savings and loan associations. Bee Ark. Stat. Ann. § 67-1838 (Repl. 1966). The principal virtue of Act 78 is the requirement of designation in writing; that is, when an account is opened or a certificate of deposit is issued in the name of two or more persons, a written designation is made as to the investiture of title. The act enumerates joint tenancy, joint tenancy with rigid of survivorship, and tenancy in common. It also authorizes a depositor to designate that on his death the funds represented by the account or certificate shall be paid the person or persons listed by the depositor. An exception to the requirement of making written designation is made as to an account or certificate in the name of husband and wife; in that situation the deposit becomes by operation of the statute a tenancy by the entirety.

All paragraphs in Act 78, excepting the one designated (d), deal directly or indirectly with survivorship. Paragraph (d) reads as follows:

If an account is opened or a certificate of deposit is purchased in the name of two (2) or more persons, whether as joint tenants, tenants by the enlirety, tenants in common, or otherwise, a banking institution shall pay withdrawal requests, accept pledges of the same, and otherwise deal in any maimer with the account or certificate of deposit upon the direction of any one (1) of the persons named therein, whether the other persons named in said account or certificate of deposit be living or not; unless one (1) of such persons named therein shall by written instructions delivered to the banking institution designate that the signature of more than one (1) person shall, be required to deal with such account or certificate of deposit.

We have italicized the phrase in paragraph (d) “or otherwise.” That phrase could not afford protection io the hank in every conceivable situation. It must be interpreted in light of the context of Act 78 of which it is a part. Designated in writing is the theme of the entire act. Paragraph (cl) refers to those accounts and certificates of deposit wherein the named persons are designated as joint tenants, tenants by the entirety, tenants in common, or other designation is made affecting survivorship. The italicized phrase is the meaning attributable to the term “or other wise.” Therefore, in a matter’ of weeks after the passage and approval by the Governor of Act 78, the General Assembly amended Act 260 of 1937 to delete survivorship therefrom and to afford further protection to the banks in paying out funds held in tire names of two or more persons. In its effort to eliminate the treatment of survivorship by Act 260, the Legislature made these significant changes in a bill which became Act 444;

1. The phrase in the title of Act 260, “Defining Rights of Parties in Bank Deposits in Two Names,” was deleted from the title of Act 444. The single purpose staled in the new title was simply to authorize a bank to pay to any one of the multiple parties named in a deposit the proceeds of the account.

2. Act 444 deleted from Act 260 the phrases “or to the survivor of them” and “or to the survivor after the death of one of them.” Consequently the word “survivor” nowhere appears in Act 444.

Act 78 did not provide protection for a bank in the event it paid out funds in instances where no written designation of survivorship was made and the named parties were still alive. Act 444 established that protection when such an account is processed in the manner therein provided.

The chancellor took the position that the phrase in Act 444 — “shall become the property of such persons as joint tenants” — created a sundvorship. ¥e have not lightly considered that theory; however, we think that position is outweighed when we consider the entire picture of the legislation and find what reasonably convinces us was the legislative intent. We could cite a multitude of cases which hold the primary rule in statutory construction to be the determination of the intent of the lawmakers. If that cannot be precisely ascertained from the language of the act, we look to other sources. The legislative history, the title, the object sought to be accomplished, and the expediency of the act are among the many appropriate sources which shed light on legislative intent.

It is a mild statement to say that Act 260 of 1937 created a maze of problems in the handling of joint bank deposits and certificates. Much litigation over those deposits has reached this Court. Many decisions had to be made by ascertaining the intent of the depositor from parol evidence and “after death had sealed the lips of the person principally concerned.” Ratliff v. Ratliff, Adm’x., 237 Ark. 191, 372 S.W. 2d 216 (1963). Act 260 had minimal written requirements which fell far short of being sufficient. In that situation the Legislature and the banking interests turned to the comprehensive act under which the building and loan associations had been operating for two years. It was incorporated, in most essentials, in Act 78. That act was supplemented by Act 444.

In harmonizing the two acts of 1965 we have not thus far mentioned some other factors which are significant. The same legislative body authored both acts; the same legislative committees on banks and banking evaluated the proposed legislation; and we perceive that leaders in the banking business attended the public hearings. It is inconceivable that they would intentionally approve a comprehensive act in one breath and then forthwith pass a second act substantially out of harmony with the first. Had it been their intention to modify any part of Act 78 they would surely have so stated in Act 444 and in terms of specifics. Our Court follows a maxim of the common law, namely, that acts passed on the same subject should be construed together and, if possible, reconciled to effect the legislative intent. McFarland v. The Bank of the State, 4 Ark. 410 (1842); Ward v. Harwood, 239 Ark. 71, 387 S.W. 2d 318 (1965).

This final point as to whether Act 444 treats survivorship. At one time this Court said that Act 260— predecessor to Act 444 — did not establish rights of survivorship between the named parties. Black v. Black, 399 Ark. 609, 335 S.W. 2d 837 (1940). Since in 1940 this Court thought that Act 260 did not apply to survivorship, we cannot conceive it to so apply after being amended and stripped of its original title referring to “right of the parties in bank deposits in two names”; of the phrase “to be jjaid to either or to the survivor of them”; and of the statement “or to the survivor after the death of one of them.”

We hold that with reference to bank deposits and certificates in multiple names made after the effective date of Act 78, there must be a substantial compliance with tiie “designation in writing” requirements of that act in order to effect survivorship. Mr. Bryeans, in purchasing' the certificate, did not affix his signature to any instrument. As was the situation in Ratliff there was no minimum formal action taken by the depositor.

The decree is reversed and the cause remanded with directions that judgment be entered in favor of appellant.

Harris, C.J., and Fogleman and Holt, JJ., dissent.

John A. Fogleman, Justice.

I -would affirm the judgment of the chancery court. While I agree, academically, with many of the statements contained in the majority opinion and with many of the rules of construction stated therein, my fundamental basis of disagreement with the majority is that I find absolutely no necessity for resort to rules of interpretation and construction in determining the application and effect of Act 444 of 1965, or in determining the legislative intent. These rules may be resorted to only where necessary, i.c., where the language of the statute itself is ambiguous or gives rise to some doubt about the effect of the act. There was no reason in this case to seek the legislative intent outside the language of the statute itself or to rely upon rules of construction. In order that the treatment of Act 444 be put in proper perspective, it is necessary to examine the full text thereof. It appears as Ark. St-at. Ann. § 67-521 (Repl. 1966). It reads:

“When a deposit shall have been made in the names of two [2] or more persons and in form to be paid to any of the persons so named, such deposit and any additions thereto made by any of the persons named in the account, shall become the property of such persons as joint tenants, and the same, together with all interest thereon, shall be held for the exclusive use of the persons so named, and may be paid to anj^ of said persons. Such payment and the receipt or acquittance of the one to whom such payment is made shall be a valid and sufficient release and discharge of said bank for all payments made on account of such deposit prior to the receipt by said bank of notice in writing signed by any one of said joint tenants not to pay such deposit in accordance with the terms thereof.”

The language of this statute is clear and unambiguous. This being the case, there is no justification for resort to any exploration for the legislative intent or room for construction. Where the language of a statute is unambiguous the intention of the legislature must be gathered therefrom. Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36. It must be sought from the plain meaning of the language used. Hopper v. Fagan, 151 Ark. 428, 236 S.W. 820; Wheelis v. Franks, 189 Ark. 373, 72 S.W. 2d 231; McCarroll v. Williams, 195 Ark. 715, 114 S.W. 2d 18. In Call v. Wharton, 204 Ark. 544, 162 S.W. 2d 916, we said:

“In interpreting and construing the meaning of statutes, the guiding rule is very clearly announced by the late Chief Justice Hart in Berry v. Hale, 184 Ark. 655, 43 S.W. 2d 225, 226, in this language: ‘This court has uniformly held that, in the construction and interpretation of statutes, the intention of the Legislature is to be ascertained and given effect from the language of the act if that can be done ...’ ”

In Refunding Board of Arkansas v. Bailey, 190 Ark. 558, 80 S.W. 2d 61, we held that the primary rule of construction of statutes is to ascertain and give effect to the intent of the lawmakers. The guide to doing so is clearly set out in that opinion where we said:

“In construing a statute, it may he, and frequently is necessary to consider other acts in connection with the act under consideration, in order to ascertain the intention of the Legislature. But where, by the act itself, the intention of the Legislature is plavn from the face of the statute and the language used, there is no room for construction.
'It is beyond question the duty of courts in construing statutes to give effect to the intent of the lawmaking power, and seek for that intent in every legitimate way. But * * # first of all in the words and language employed; and if the ivords are free from ambiguity. and doubt, ami express plainly, clearly and distinctly the sense of the framers of the instrument, there is no occasion to resort to other means of interpretation. It is not allowable to interpret what has no need of interpretation. The statute itself furnishes the best means of its own exposition; and if the sense in ivhich words were intended to be used can be clearly ascertained from its parts and provisions, the intention thus indicated will prevail without resorting to other means of aiding in the constructionLewis’ Sutherland Statutory Construction, vol. 2, p. 698.” TLinphasis ours.]

Construction and interpretation have no place where the terms of a statute are plain and certain. Hopper v. Fagan, supra. While it is the duty of the court, in interpreting a statute, to give effect to the intention of the lawmaking body, when the act is plain and unambiguous so that no doubt arises from its terms, it needs no interpretation, and courts must follow the act implicitly. Broadway-Main Street Bridge District v. Taylor, 186 Ark. 1158, 57 S.W. 2d 1041. Where the language of a statute is plain and unambiguous, it needs no construction, anti it is the duty of this court to ascribe to the statute the meaning evidenced by the language used. St. Louis I.M. & S. Ry. Co. v. Waldrop, 93 Ark. 42, 123 S.W. 778; Agee v. Snodgrass, 196 Ark. 266, 117 S.W. 2d 28. Where the language used is clear and unambiguous, we are concerned with the meaning of what the legislature said or did rather than what it might have intended. City of Little Rock v. Arkansas Corporation Commission, 209 Ark. 18, 189 S.W. 2d 382. We must give unambiguous language employed in an act its obvious meaning. Wheelis v. Franks, 189 Ark. 373, 72 S.W. 2d 231. The courts have no power to construe a statute to mean anything other than what it says, if it is plain and unambiguous. Johnson v. Lowman, 198 Ark. 8, 97 S.W. 2d 86. See also Cross v. Graham, 224 Ark. 277, 272 S.W. 2d 682. Neither the exigencies of a case nor a resort to extrinsic facts will be permitted to alter the meaning of plain and unambiguous language used in a statute. Cunningham v. Keeshan, 110 Ark. 99, 161 S.W. 170. It is only where the terms used in an act are ambiguous that construction is permissible to determine the legislative intent. Wilson v. Biscoe, 11 Ark. 44. We must, determine the intention of the legislature from the language of the act itself, where it is unambiguous. Raines v. Bolick, 183 Ark. 832, 39 S.W. 2d 309; Tolleson v. McMillan, 192 Ark. 111, 90 S.W. 2d 990; Miller v. Yell and Pope Bridge District, 175 Ark. 314, 299 S.W. 15; Manley v. Moon, 177 Ark. 260, 6 S.W. 2d 281.

There is nothing unclear or ambiguous about language saying that when a bank deposit is made in a certain way and under such circumstances “such deposit and any additions thereto made by any of the persons named in the account shall become the property of such persons as joint tenants.” In order to reach its result, it ay as necessary for the majority to read this language out of the statute. This was unjustified and unauthorized. A statute must be construed, if possible, so that no clause, sentence or word shall be void, superfluous or insignificant. Wilson v. Biscoe, supra. "Where the legislative intent can be ascertained from the language of the act itself, there is no excuse for adding to or changing the meaning of the language employed. Call v. Wharton, 204 Ark. 544, 162 S.W. 2d 916; Berry v. Sale, 184 Ark. 655, 43 S.W. 2d 225. We are required to give effect to all language employed in the context if reasonable and consistent. McClure v. McClure, 205 Ark. 1032, 172 S.W. 2d 243. Every word in a statute must be given effect if possible. Monsanto Chemical Company v. Thornbrough, 229 Ark. 362, 314 S.W. 2d 493. Where' the language is plain and unambiguous, courts cannot add to, take from, or change the language of the statute to give effect to any supposed intention of the legislature. McCarroll v. Williams, 195 Ark. 715, 114 S.W. 2d 18. To do so would be to encroach upon the peculiar function of the sovereign power lodged in a coordinate branch of the government. Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36. We cannot refuse to give effect to the plain language of a statute merely because we think it brings about an inequitable result in a particular case. Cupp v. Frazier’s Heirs, 239 Ark. 77, 387 S.W. 2d 328.

Acts 78 and 444 can be construed in harmony, without doing violence to any of the language of Act 444. New legislation must be construed with reference to existing legislation on the subject. Newton County Republican Central Committee v. Clark, 228 Ark. 965, 311 S.W. 2d 774. I agree with the majority that Act 78 appearing as Ark. Stat. Ann. § 67-552 (Repl. 1966) has to do only with accounts in two or more names where the parties are either designated as husband and wife or where the relationship of the parties is designated in writing. Thus, in order for Act 78 to be effective there must either be a designation in writing that the account is to be held in “joint tenancy” or in “joint tenancy with right of survivorship” or as “tenants in common” or there must be a designation of the parties to a banking institution as husband and wife. Nothing whatever is said in that act about tlie title to a deposit in two or more names in form to be paid to any of the persons named where there is no such designation. It is obvious to me that the General Assembly, its committees, the leaders in the banking business and anyone else who had anything to do with the passage of Act 444 realized that the specific repeal of Act 260 of 1937 by Act 78 of 1965 left the law in a quagmire as to the ownership of deposits where no designation was made. None of the decisions under Act 260 of 1937 could any longer be applicable. Consequently, they virtually re-enacted Act 260 of 1937 eliminating therefrom only the requirement that the deposit must be payable to either or the survivor. Thus the act as amended can only cover situations where a designation has not been made. The differences in Act 260 of 1937 and Act 444 of 1965 are insignificant, except as above mentioned. Whatever differences there are, the similarities are such that the holding in Pye v. Higgason, 210 Ark. 347, 195 S.W. 2d 632, with reference to the 1937 act as to purposes should be controlling. In that c-ase it was held that the act, because of the language it contained, was passed, not only for the protection of the bank in which the account was deposited, but for the purpose of declaring a definite and conclusive relation of the parties to such deposit on the death of either and prior to receipt by the bank of written notice signed by any one of the joint tenants not to pay the deposit in accordance with its terms. When the legislature uses one act as the model for a new one, there is a presumption that it knew of the construction given the earlier act and the courts will not give the new act a different construction. Adams v. Hale, 213 Ark. 589, 212 S.W. 2d 330. I humbly submit that that is just what the majority has done in this case. It has not suggested what the words “shall become the property of such persons as joint tenants” should be taken to mean in Act 444. It has been held that survivorship is one of the results of joint tenancy. Ferrel v. Holland, 205 Ark. 523, 169 S.W. 2d 643; Pye v. Higgason, supra. I submit that joint tenancy means just that in Act 444, especially since the legislature did not give the words any definition eliminating survivorship.

Undue emphasis is placed by the majority upon the title of Act 444. The title of an act is no part of the act itself. Laprairie v. City of Hot Springs, 124 Ark. 346, 187 S.W. 442; Special School District No. 33 v. Howard, 124 Ark. 475, 187 S.W. 444; McLeod v. Purnell, 164 Ark. 596, 262 S.W 682; Glover v. Henry, 231 Ark. 111, 328 S.W. 2d 382. There is no constitutional requirement that an act have a title. The legislature and courts of Arkansas have not been hamstrung by limitation on subject matter by titles of acts since the adoption of the constitution of 1874. Laprairie v. City of Hot Springs, supra. It is only where the meaning of the lawmakers is in doubt from an examination of the act itself that the title of a statute has any force in interpretation of its meaning. Anderson, “Drafting a Legislative Act in Arkansas,” 2 Ark. L. Rev. 382, 385, 386; State v. White, 170 Ark. 880, 281 S.W. 678; City of Conway v. Summers, 176 Ark. 796, 4 S.W. 2d 19; Graves v. Burns, 194 Ark. 177, 106 S.W. 2d 602. See also Huff v. Eudy, 173 Ark. 464, 292 S.W. 693; Matthews v. Byrd, 187 Ark. 458, 60 S.W. 2d 909, 2 A.L.R. 385; Special School District No. 33 v. Howard, supra; Drainage District No. 18 v. McMeen, 183 Ark. 984, 39 S.W. 2d 713; Matthews v. Byrd, supra; Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279.

I find reinforcement for my construction of the act in two other factors, which are characteristic of joint tenancies. Under Act 444 either of the persons in whose name the account is carried may give written notice to the bank in which the funds are deposited not to pay such deposit in accordance with the terms thereof. This is certainly inconsistent with a result that makes the estate of a party to a joint account who dies the owner of the account rather than the survivor. The other factor is that the bank’s payment of the account to either party is not limited to their joint lives. Thus every word in Act 444 is consistent with a joint tenancy but not with, a tenancy in common or individual ownership by one party to the exclusion of the other.

In view of the fact that the construction I give the act would harmonize the two acts passed at the same session, would not result in rendering any of the words of the latest act passed meaningless, and would not resolve any conflict in favor of the earlier act passed, I submit that this is the proper construction.

Even if rules of interpretation or construction were properly resorted to, the majority opinion permits the last act passed to be amended by a prior act. This violates a primary rule of statutory construction. Where the legislature enacts two acts at the same session which are conflicting, the latest expression of the legislative will should prevail. Williams v. State, 215 Ark. 757, 223 S.W. 2d 190.

Harris, O.J., and Holt, J., join in this dissent.


author: John A. Fogleman, Justice.

text:
    Winthrop Rockefeller, Governor, et al v. Ed Faver Smith, et al
    5-4866
    440 S.W. 2d 580
    Opinion Delivered May 5, 1969
    [Rehearing denied June 2, 1969.]

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen., for appellant.

      Cockrill, Laser, McGehee, Sharp & Boswell for appellees.

      Kirsch, Cathey & Brown (for appellee Greene Co. and Reed, County Judge).
   John A. Fogleman, Justice.

Appellants in this case constitute The Board of Apportionment of the State of Arkansas created by Amendment No. 45 to the Constitution of Arkansas. Appellees consist of citizens and residents of Pulaski, Jackson, Hempstead, Lonoke and Searcy Counties, a member of the Republican Party of Arkansas, Greene County and negro electors and small wag.e earners of Pulaski County. Some of them became parties by intervention. The same relief was sought by all of the appellees. They prayed that the reapportionment plan filed by appellants with the Secretary of the State of Arkansas and the United States District Court on July 15, 1965, be declared unconstitutional and void. They also asked that the appellants be granted a reasonable time within which to adopt a reapportionment plan in conformity with constitutional requirements by subdividing multi-membered districts and that the Pulaski Circuit Court subdivide these districts if The Board of Apportionment failed to act within a reasonable time. By demurrer appellants raised a question as to the jurisdiction of the court over the subject matter of the action. The demurrer was overruled and, after hearing evidence, the circuit court found in favor of the appellees and entered a judgment direding appellants to make a study of the present apportionment system and to redistrict where they found areas not appropriately subdistricted to insure distribution of legislators in a fair and representative manner.

The trial court specifically ordered: that the senatorial district composed of Pulaski and Lonoke Counties be redistricted so as to assure that the voting strength of any political, racial, economic or geographically cohesive group is not minimized or canceled; and that the house district composed of Craighead and G-reene Counties, that composed of Searcy, Marion and Pope Counties, that composed of Newton and Johnson Counties be redistricted in the same manner. The trial court directed that The Board of Apportionment in all cases effect a redistricting which would create single-member districts unless valid and compelling reasons exist which require the creation of multimember districts in certain areas. The court’s direction to the board required reapportionment on the basis of the 1960 census figures, but it is not clear whether the court intended that this reapportionment be the basis for use in the election of 1970 with adjustments being made on the basis of preliminary federal census figures as a compliance with § 4 of Amendment No. 45 or whether there should be a reapportionment on this basis for the elections of 1970 and that an additional apportionment be made on the basis of the final census figures by February 1, 1971. The trial court’s memorandum opinion, in stating the principles to be, followed by The Board of Apportionment, indicated that floterial districts should be composed of a combination of relatively small counties, rather than having some of these counties attached to larger counties and that tradition.ally Republican counties be grouped together, rather than attached to more populous counties.

Many interesting and forceful arguments for single-member districts are advanced by appellees. In view of the fact that we find that the trial court was without jurisdiction in this matter, no useful purpose would be served in dwelling upon these arguments. It is sufficient to say that some of them would be more appropriately directed to The Board of Apportionment. We note that many of them have already been rejected as a basis for holding Congressional District reapportionments unconstitutional in the recent cases of Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519, and Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed 2d 535, both decided on April 7, 1969.

Section 5 of Amendment 45 reads:

“Original jurisdiction (to he exercised on application of any citizens and taxpayers) is hereby vested in the Supreme Court of this State (a) to compel (by mandamus or otherwise) the Board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by the Board in making such apportionment; provided any such application for revision shall be filed with said Court within 30 days after the filing of the report of apportionment by said Board with the Secretary of State; if revised by the Court, a certified copy of its judgment shall be by the clerk thereof forthwith transmitted to the Secretary of State, and thereupon be and become a substitute for the apportionment made by the Board.”

The proceeding by appellees could be classified both as a proceeding to compel the board to perform its duties and as a proceeding to revise alleged arbitrary action of, or abuse of discretion by, the board in making the 1965 apportionment. That apportionment was approved by the three-judge court which heard the matter and its judgment affirmed by the United States Supreme Court. Yancey v. Faubus, 251 F. Supp. 998 (1965); Crawford County Bar Association v. Faubus, 383 U.S. 271, 86 S. Ct. 933, 15 L. Ed. 750 (1966). The trial court entered an order which, in substance if not in form, was a writ of mandamus to the board to perform its duties in a manner prescribed by the trial court. By that order the Circuit Court of Pulaski County assumed jurisdiction to make a reapportionment of the state itself if appellants failed to do so -within a reasonable time. Under the clear and implicit language of the section of Amendment 45 hereinabove quoted there is no jurisdiction in any Arkansas court to take the action sought by appellees except the supreme court.

One of the appellees argues that this court has no original jurisdiction more than thirty days after the filing of the report of apportionment by the board, We. find no substance in this argument. The thirty-day limitation applies only to actions to revise an apportionment made by the board such as was done in Shaw, Autry and Shofner v. Adkins, Governor, 202 Ark. 856, 153 S.W. 2d 415. There is no time limitation on the filing of actions to compel the board to perform its duties. Appellees rely on such cases as Bailey v. Abington, 201 Ark. 1072, 148 S.W. 2d 176; Butler v. Democratic State Committee, 204 Ark. 14, 160 S.W. 2d 494; Faubus v. Kinney, 239 Ark. 443, 389 S.W. 2d 887; Block v. Allen, 241 Ark. 970, 411 S.W. 2d 21, to indicate that this court’s original jurisdiction is not exclusive. There is no merit in this contention. In only one of these cases was The Board of Apportionment a party. In none of them was any effort made to compel the board to do anything. For the most part, litigation in those cases concerned the effect of reapportionments made by The Board of Apportionment. The lone exception is Faubus v. Kinney, where tlie question was whether the board had any authority, or even existed, in view of the holding by the United States District Court in Yancey v. Fembus, 238 P. Supp. 290, that parts of Amendment 45 were unconstitutional. We find nothing in the language of the constitutional amendment to indicate that any Arkansas court other than this one has any jurisdiction. It would be strange indeed, if this court should be vested with both original and appellate jurisdiction in these cases. "We hold that the jurisdiction of this court in these matters is exclusive.

The action of the circuit court in overruling appellants’ demurrer was erroneous. Since the trial court liad no jurisdiction, the action is dismissed.

      No action was filed in this court seeking to have a revision of the 1965 reappertionment.


author: J. Pi:kd Jonrs, Justice.

text:
    Missouri Pacific Railroad Company v. Cleo M. Clark
    5-4874
    440 S.W. 2d 198
    Opinion Delivered May 5, 1969

      William J. Smith and W. A. Eldredge, Jr. for appellant.

      Fred Livingston and McMath, Leatherman, Woods & Youngdahl for appellee.
   J. Pi:kd Jonrs, Justice.

This is an appeal from a judgment of the Independence County Circuit Court setting aside a jury verdict and granting a new trial, in a personal injury suit brought by Cleo M. Clark against the Missouri Pacific Railroad Company. The question is whether the trial court abused its discretion in setting aside the verdict and granting a new trial.

Cleo M. Clark was employed by Rangaire Corporation at its limestone quarry in Izard County, Arkansas. The Missour Pacific. Railroad Company had constructed, and continued to help maintain, a spur track from its main line track through a cattle guard and upgrade to the quarry operations. The railroad company would switch railroad hopper cars from its main line to the end of the spur beyond the loading tipple at the quarry, and the empty cars were then moved by gravity, as they were needed, back to the loading tipple where they were loaded with limestone. After the cars were loaded, they were coupled together in pairs and moved by gravity, two at a time, downhill to where they were left standing oil the end of the spur near the main line until they were picked up and pulled away by Missouri Pacific. It was a part of Clark’s duties to ride the loaded cars from the loading tipple down to the main track -where he coupled them to the loaded cars already set out on the end of the spur.

In removing the loaded cars from the quarry to the main line, they moved by gravity, and Clark rode the front end of the car in front and controlled their speed by the hand brake on the front car. The moving cars were permitted to strike the stationary cars with sufficient force to “make up” the coupling. There was a rather sharp curve in the spur track near a cattle guard close to the main hire and the outside rail on this curve was not super-elevated. On the day of Clark’s injury, six loaded cars had been set out near the main line and the hand brakes had been set on three of them. As Clark brought two additional loaded cars, coupled together, down the spur track from the quarry, he was riding on the front end of the front car as usual, and as this car struck the first of the six stationary cars, the couplings failed to make proper connection but missed each other completely and as the ends of the two cars came together Clark was caught between the two cars and injured.

Following the accident it was found that the outside rail in the curve on the spur track had twisted over, drawing the spikes from the crossties on the inside of the outside rail and leaving the wheel flanges of the front truck on the outside of the curve resting on the web of the turned rail between the ball and the turned up flange of the rail. The wheels on the opposite side of the truck dropped from the rail on the inside of the curve and three of the crosstios were marked by the flanges of the wheels on that side. After the accident the wheels of the truck on the collision end of the stationary car were found in the same position on the rails as were the wheels on the moving car. The drawn spikes, the marked crossties, the twisted rail and the impact between the cars occurred near the cattle guard and on the curve in the track. The physical damage to the track extended from the quarry side of the cattle guard twelve or fourteen feet through the cattle guard to where Clark was removed from between the ends of the two cars.

Clark filed suit against the railroad company for personal injuries alleging negligence in failure to properly elevate the outside rail on the curve, and in failure to properly maintain the track, resulting in the rail twisting over under the weight and normal slow speed of the car and thereby causing the couplers on the two cars to bypass each other upon impact. The railroad company answered by general denial and the allegations of assumption of risk and contributory negligence in Clark’s failure to apply proper brake restraint on the moving cars and permitting them to gather more speed than the track was designed to take, and in Clark’s failure to align the couplers so that they would properly meet and “make up” on impact and not bypass each other in the curve.

Prior to the trial of the case, the discovery deposition of Clark had been taken and portions of the deposition were copied on separate paper by the railroad company attorney. Clark testified at the trial and parts of his deposition were also read into evidence. Neither actual deposition nor the excerpts therefrom were offered as exhibits in evidence at the trial. During the argument to the jury the railroad company’s attorney gave to the jury the excerpts he had prepared from the discovery deposition without first presenting the document to Clark’s attorney for inspection or to the court for approval. The instrument presented to the jury contained the same questions and answers that liad been read into evidence but not in the same order. No objection was made to this procedure by Clark’s attorneys and no instruction or admonition was requested thereon.

The railroad’s motion for a directed verdict was overruled by the court, and the jury returned a verdict on interrogatories finding Clark 80% negligent and the railroad company 20% negligent. The jury found that Clark liad sustained damages in the amount of $32,-720.00. Clark filed a motion for a new trial alleging prejudice by the placing of the excerpts from the deposition in tlie hands of the jury and for the further reason that the apportionment of the negligence was contrary to the preponderance of the evidence. The motion for a new trial was granted by order of the trial court in general terms, and on appeal to this court, the railroad company relies upon the following points for reversal:

“I. The trial court erred in granting appellee Clark a new trial, because:
A. To affirm the granting of a new trial under circumstances presented by this record would accord trial courts unlimited discretion in setting aside jury verdict.
B. Appellant’s argument was proper.
C. Appellee waived any error in appellant’s argument by neither objecting thereto nor requesting a mistrial prior to the jury’s verdict.
D. Appellee failed to support his motion for new trial by affidavits as required by law.
II. Appellant’s motion for a directed verdict should have been granted.”

The question here is not the amount of discretion we would accord trial courts by affirming this case. The question is whether the trial court abused the discretion ■it already had in granting a new trial in this case. We are of the opinion that the trial court did not abuse its di scretion.

While the motion for a new trial emphasizes the alleged impropriety of argument the appellant’s attorney made to the jury, the motion for a new trial also states as a ground therefor, that the verdict was contrary to the jjreponderance of the evidence.

The appellate states in its brief that a reading of appellee’s motion clearly reflects that appellee sought and received a new trial because of alleged misconduct by appellant’s attorney in preparing and presenting to (he jury the Xerox copy of portions of appellee’s deposition, and the appellant argues that lack of verification as required by Ark. Stat. Ann. § 27-1905 (Repl. 3962) was fatal to appellee’s motion for a new trial. We find no merit in this contention. We have read appellee’s motion for a new trial, as well as the court’s order granting it, and we do not share appellant’s conviction that the motion was granted because of alleged improper argument to the jury. The pertinent portions of the motion are as follows:

“(3) The movant was prevented from having a fair trial by reason of irregularity in the proceedings of the court when Mr. William Elclredge, the attorney for the defendant, at the beginning of his dosing argument handed to each juror copies of the attached memorandum without first having submitted same either to the court or to the opposing counsel. * * *
(4) The plaintiff further moves for a new trial on the ground that, the answers to the interrogatory dealing with the negligence of Clark and the apportionment of such negligence is contrary to a preponderance of the evidence ...”

The order granting the motion for a new trial provides :

“On this 27th day of May, 1968, there comes on to be heard the motion of the plaintiff for a new trial under the provisions of Ark. Stats. Sec. 27-3.901, and the Court having considered the motion and having heard the arguments of counsel finds that the motion should be granted.
IT IS THEREFORE CONSIDERED ORDERED AND ADJUDGED that the verdicts renderocl herein on interrogatories submitted to the jury by the Court should be set aside and that the plaintiff be and he is hereby granted a new trial of the above styled cause.”

As to the preponderance of the evidence, it would serve no useful purpose to quote extensively from the testimony, because we do not go into the preponderance of the evidence on which the trial court grants or refuses a motion for a new trial. We do not examine a record to determine what we would have done had we been sitting in the place of the trial judge, we examine the record for a determination of whether the trial court abused his discretion in taking the action he did. The appellee contends in this case that faulty track, under the weight of the cars, was the sole cause of the accident, and the appellant contends that it was solely caused by the excessive speed of the cars being moved by the appellee. Both the appellant and the appellee offered some testimony, and rather substantial circumstantial evidence, tending to sustain their respective theories.

The appellee testified that he brought the cars from the loading tipple to the point of impact at the usual speed of about three miles per hour, and that at the time of the actual impact, the car he rvas riding on was barely moving. This is controverted to some extent by the physical evidence of damage to the cattle guard, markings on crossties, and inferences the jury could have drawn as to the force of impact. The appellee testified that he was looking down at the couplers as the cars slowly came together and that the couplers simply missed each other. From this testimony, together with the physical and circumstantial evidence following the accident, the jury could have found that the rail had already twisted throwing the couplers out of line before the cars came together. As to what caused the couplers to bypass each other, the appellant offered evidence that the couplers had previously missed each other when they were not properly lined up by hand in preparation 1o making a coupling. The evideuce is in considerable conflict as to the necessity, and indeed the physical possibility, of manually aligning or moving the couplers to an appreciable degree on the particular new type ball bearing cars involved in this case.

There was evidence in the record that subsequent to appellee’s injury, the outside rail at this particular point in the track again twisted under the weight of a loaded car, and Mr. Brodie, a civil engineer, who testified as an expert for the appellee, concluded his testimony as follows :

“. . . [I]n this case, I believe there has been millions and millions of tons crossing there and that additional flexure plus this additional curvature plus this lack of super-elevation coming immediately preceding that point makes that a very weak point in the rail; that has been shown not once but twice.”

Witness Brodie’s testimony is contradicted by Mr. McKeithen, assistant engineer of track for the appellant, who testified that railroad rails break near the ends when they break from flexion, but that lie never heard of one twisting over because of weakness caused by flex-ion. He testified that super-elevation was not necessary on an industrial track and that the degree of curvature on the track involved was within standard for loaded cars moving as fast as fifteen miles per hour.

Prom all of the evidence in this case, we are of the opinion that there was sufficient evidence of appellant’s negligence to go to a jury, and that the trial court did not err in refusing appellant’s motion for a directed verdict. See Hawkins v. Missouri Pacific Railroad Company, Thompson Trustee, 217 Ark. 42, 228 S.W. 2d 642.

We do not question the sufficiency of the evidence to sustain the jury verdict in this case, for that is not the question before us. Even if the sufficiency of the evidence to sustain the jury verdict were before us in this ease, we would examine it for its substantial nature rather than weigh its preponderance, for that is the prerogative of the trial judge who sees the witnesses and hears them testify in law cases.

In the case of Muellier v. Coffman, 132 Ark. 45, 200 S.W. 136, the trial court in overruling a motion for a new trial, stated that the verdict as returned by the jury was somewhat of a surprise to him, but as there were disputed questions of fact for the determination of the jury, and, though contrary to the judgment of the court as to what the verdict should have been, he did not deem it proper to disturb the verdict of the jury. In reversing the trial court and granting a new trial, this court said:

“That [trial] court sees the witnesses, hears them testify, and is afforded opportunities we can not have to weigh the evidence, and the duty, therefore, properiv rests with that court to pass upon the question of preponderance. In doing this, the court, of course, should give proper weight to the verdict of the jury and should not set it aside lightly, but if it clearly appears, and the court so finds, that the verdict is against the preponderance of the evidence, it becomes the duty of the court to set. it aside. Under the statement of the court, set out above, we think the court should have granted a new trial, and it will be now so ordered. Spadra Creek-Coal Co. v. Hager, 130 Ark. 374, 197 S.W. 705; Spadra, Creek, Coal Co. v. Callahan, 329 Ark. 448, 196 S.W. 477; Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851.”

In the case of Blackwood v. Eads. 98 Ark. 304, 135 S.W. 922, this court said:

“Where there is decided conflict in the evidence, this court will leave the question of determining the preponderance with the trial court, and will not disturb his ruling in either sustaining a motion for new trial or overruling same. ‘The Supreme Court will much more reluctantly reverse the final judgment in a cause for error in granting than for error in refusing a new trial.’ House v. Wright, 22 Ind. 383; Oliver v. Pace, 6 Ga. 185. The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court.. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.”

In McDonnell v. St. Louis Southwestern Ry. Co., 98 Ark. 334, 135 S.W. 925, this court said:

“. . . It is not invading the province of the jury for the trial judge to set aside its verdict where there is a conflict in the evidence. On the contrary, it is the duty of the trial court to s.et aside a verdict that it believes to be against the clear preponderance of the evidence. But it should not, and the presumption is that it will not, set aside a verdict unless it is against the preponderance of evidence. This court will not reverse the ruling of the lower court in setting aside a verdict where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance.”

In Twist v. Mullinix, 126 Ark. 427, 190 S.W. 851, the trial court remarked that, in his opinion, the verdict of the jury was against the preponderance of the evidence, but he failed to set the verdict aside. In reversing the decision of the trial court, this court went rather thoroughly into the subject and for that reason we quote rather extensively from that decision:

‘‘. . . [A]fter the jury has concluded its deliberations and returned its verdict, if there is a motion for a new trial setting np that the verdict is not sustained by sufficient evidence, or that it is contrary to law, or both, it is then the province of the trial court to review the verdict and to determine whether or not the jury has correctly applied the law as contained in the court’s instructions, and whether or not the verdict is responsive to the preponderance of the evidence.
* * * "When the trial court becomes convinced that the verdict is not sustained by a preponderance of the evidence, then it is his duty to set aside that verdict. And if the trial court finds and announces that the verdict of the jury is against the preponderance of the evidence on a material issue of fact then he must set aside such verdict. The trial court presides over the trial. He observes and hears the witnesses, and has the same opportunity as the jury in this respect, and that is the reason why it is made his peculiar and exclusive function to determine the issue on a review of the verdict as to whether it is responsive to the preponderance of the evidence in the cause. This court cannot do that for the reason that it has no such opportunity...
The rule setting forth the respective functions-of the jury and the trial court and this court is well expressed in Richardson v. State, 47 Ark. 562, 567, where we said: ‘But the weight of evidence and the credibility of witnesses are to be determined by the jury. It is the duty of the trial court to set aside a verdict which is clearly against the weight of the evidence. But when the case reaches us, the question is no longer whether the evidence preponderates on one side or the other, or whether due credit has been given to the statements of a witness who has testified fully and fairly. But the question is, whether there is a failure of proof on a material point. To order a new trial because we differ in opinion from the circuit judge as to the weight of the testimony, or the truth or falsity of a witness, is to substitute our discretion for his discretion. And in this matter he is supposed to enjoy some advantages over us.’
* # *
In Blackwood v. Eads, supra, we said further: ‘Where there is a decided conflict in the evidence this court will leave the question of determining the preponderance with the trial court and will not disturb his ruling in either sustaining a motion for a new trial or overruling same.’ * * *
‘The witnesses give their testimony under the eye and within the hearing of the trial judge. His opportunities for passing upon the weight of the evidence are far superior to those of this court. Therefore his judgment in ordering a new trial will not be interfered with unless his discretion has been manifestly abused.’ See also McDonald v. St. L.S.W. Ry. Co., 98 Ark. 334; McIlroy v. Arkansas Valley Trust Co., 100 Ark. 596-599.
The only tribunal, under our judicial system, vested with the power to determine whether or not a verdict is against the preponderance of the evidence is the trial court. Where there is a conflict in the evidence and the trial court finds that the verdict, upon a material issue of fact, is against the preponderance of the evidence, the- logical and necessary result of such finding as matter of law is that the verdict must be set aside; otherwise, it would be impossible to correct the error.”

In Wilhelm v. Collison, 133 Ark. 166, 202 S.W. 28, this court said:

“Wé are not called upon to pass upon the legal sufficiency of this testimony to support a verdict based upon it, because the court below granted a now trial pursuant to the prayer of a motion therefor, which assigned as a ground therefor that the verdict of the jury was contrary to the preponderance of the evidence. We have many times said that the trial court should grant the motion for a new trial when convinced that the verdict of the jury was clearly against the preponderance of the evidence. Mueller v. Coffman, 132 Ark. 45, 200 S.W. 136; Twist v. Mullinix, 126 Ark. 427. And when the trial court reaches that conclusion and takes that action we have announced as a rule governing us in our review of that action that ‘this court will not reverse a decision of ihe trial court granting a new trial on the weight of the evidence unless it appears that there has been an abuse of the discretion in setting aside the verdict which is sustained by the clear preponderance of the evidence.’ Mcllroy v. Arkansas Valley Trust Co., 100 Ark. 599. And in the case of McDonnell v. St. L. S.W. Ry. Co., 98 Ark. 336, the rule was stated as follows: ‘This court will not reverse the ruling of the lower court in setting aside a verdict where there is substantial conflict in the evidence upon which the verdict was rendered, but will leave the trial court to determine the question of preponderance. Taylor v. Grant Lamber Co., 94 Ark. 566; Blackwood v. Eads. 98 Ark. 304.’ See also Clements v. Knight & Co., 125 Ark. 488, and cases there cited.”

To the same effect is our decision in the very recent case of Bowman v. Gabel, 243 Ark. 728, 421 S.W. 2d 898. In that case, as in the case at bar, the jury verdict was on interrogatories and the trial court did not invade the province of the jury, nor did he abuse his discretion in granting a new trial.

We find it unnecessary to determine whether the alleged improper conduct of appellant’s counsel falls under the first or second paragraph of Ark. Stat. Ann. § 27-1901 (Repl. 1962) because the motion clearly alleged cause for new trial falling under paragraph 6 of § 27-1901, that “the verdict... is not sustained by sufficient evidence ...” and the trial court did not state which ground he granted the motion on.

In Hall v. W. E. Cox & Sons, 202 Ark. 909, 154 S.W. 2d 19, a jury verdict was rendered in favor of the plaintiff and was set aside and a new trial granted upon the defendant’s motion alleging “that the verdict of the jury was contrary to the evidence, contrary to the law, and that errors were committed in giving, and in refusing, certain instructions, and that the verdict was excessive.” After a hearing on the motion, the trial court granted defendant’s motion for a new trial and set aside the judgment, assigning no specific ground or grounds therefor, and the plaintiff appealed from that order. In affirming the action of the trial court, this court said:

• ‘ While the record reflects that the order of the court in granting the motion for a new trial was general in its terms and no specific ground was stated, since the motion for a new trial alleged as a ground the insufficiency of the evidence to support the verdict, we must affirm the trial court’s action if it can be supported on this or any other ground set up in the motion.
The rule governing is stated by the textwriter in American Jurisprudence, vol. 3, p. 371, § 829, in this language: ‘Where, however, the order is expressed in general terms, without a specification of the grounds therefor, it will be affirmed if it can be supported on any ground alleged in the motion, even though it is one which is discretionary with the court, as, for instance, the insufficiency of the evidence.’ ”

We find it unnecessary to deal further with the alleged impropriety of the argument to the jury, so we now return to the only question before us as to whether the trial court abused its. discretion in granting a new trial on any ground. As we said in Hall v. W. E. Cox & Sons, supra, "while the record reflects that the order of the court in granting the motion for a new trial was general in its terms and no specific ground was stated, since the motion for a new trial alleged as a ground the insufficiency of the evidence to support the verdict, we must affirm the trial court’s action if it can be supported on this or any other ground set up on the motion.”

We conclude that the appellant has failed to show that the trial court abused his discretion in granting the motion for a new trial and we conclude that the judgment must be affirmed.

.Affirmed.


author: Conley Byrd, Justice. Oarleton Harris, Chief Justice.

text:
    Allen Frank Davis v. State of Arkansas
    5-5378
    440 S.W. 2d 344
    Opinion Delivered May 5, 1969
    [Rehearing denied June 2, 1969.]

      Jack Holt Sr. and Bailey, Trimble & Holt for appellant.

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gc-n., for appellee.
   Conley Byrd, Justice.

On January 19, 1967, appellant Allen Frank Davis shot and killed his estranged wife Sharon Davis with a 30-30 caliber rifle. The jury found him guilty of murder in the first degree without recommendation and he. stands before this court sentenced-to death by electrocution. IIis defense was not guilty by reason of insanity.

The record shows that appellant and his wife Sharon separated in August of 1966. Following the separation, appellant lived with his mother. On the date involved, appellant had caused his wife to be kept under surveillance by a friend. About quitting time appellant joined his friend across the street from where his wife worked. When he joined his friend he had with him a denim jacket described by his friend as being stiff enough to stand in the corner alone. While they were watching, his mother-in-law drove b}^ with his children to pick up his wife. Appellant told his friend that he hated his mother-in-law but-liked her cooking and, in parting, told him he was going to do something that he should have done a long time ago. His mother-in-law and Sharon proceeded to the Bed Bird Laundromat and Service Station on Central Avenue. Appellant followed. At the laundromat he exchanged some words with his wife before he shot her. He also shot his mother-in-Jaw when she ran into the laundromat for help. Witnesses testified that as lie drove away he brandished his shooting iron and shouted, “Sharon, how do you like that.” Appellant was arrested at his mother 7s home a few minutes later where he was sprawled out on a bed in a stupor after taking some pills. The 30-30 rifle was found wrapped in his denim jacket in a dog pen.

POINT 1. Appellant, in arguing that he was deprived of his rights under the fifth amendment of the United States Constitution hy virtue of the fact that he was tried and convicted upon an information, readily recognized that we have rejected this argument many times. Prosecution hy information is authorized hy Amendment 21 of our constitution. As we have pointed out many times the Federal Courts have not held that prosecution hy information is prohibited hy the United States Constitution. For this reason we hold appellant’s first point to he without merit.

POINT 2. Appellant contends here that the trial court erred, under the holding in Witherspoon v. Illinois, 391 U.S. 510 (1968), in excluding jurors who had conscientious semipiés against capital punishment. A subsidiary argument is that the trial court insured the prosecution’s request for a conviction and death sentence hy excluding all prospective jurors who said they opposed the death sentence or had religious or conscientious scruples against the death penalty. We do not believe that the record sustains appellant’s argument.

As we read the record, the trial court followed the Witherspoon case, excluding Justice Douglas’s concurrence, and our own case of Athins v. State, 16 Ark. 568 (1855). In the latter case we pointed out:

"Whatever may he a man’s view of capital punishment as a question of policy, the jury box is not a proper place for him to consider such policy. There he is obliged, hy his oath, to try the guilt or innocence of the accused, according to law and evidence, and not to set up his own private opinion against the policy of the law, which he is hound, as a good citizen, to abide by and administer, so long as it is force, and until it is repealed by the constituted authority. See the authorities collected on this subject in Wharton’s Crim. Law 857, 858.”

To follow appellant’s argument to its logical conclusion would create a kind of anarchy in our system of government whereby the minority will always hold a veto over any established public policy. For instance, since the holding in Bloom v. Illinois, 391 U.S. 194 (1968), it would be almost impossible to enforce some provisions of the 1964 Civil Rights Act, if a court were forced to accept jurors whose private opinions are contrary to the policy of the law. For these reasons wo find this point without merit.

POINT 3. ¥e find no merit in appellant’s argument that the trial court abused its discretion in admitting in evidence pictures taken by William Ralph Dever, Jr. The record shows that Mr. Dever is a commercial photographer and a mail man. He has a police radio receiver in his car. When he heard the call concerning the shooting he immediately went to the scene and took the pictures of which appellant complains. In permitting the pictures to be introduced, the trial court pointed out that they were taken within a reasonable time after the incident involved and that they helped explain the testimony as to what actually occurred, nothing more, nothing less.

In Stewart v. State, 233 Ark. 458, 345 S.W. 2d 472 (1961), we pointed out that it is within the sound discretion of the trial judge to permit the introduction of photographs to describe and to identify the premises which were the scene of the crime, to establish the corpus delicti of the crime charged, to disclose the environment of the (rime at the time it was committed and to corroborate testimony. See also, Reed v. McGibboney, 243 Ark. 789, 422 S.W. 2d 115 (1967).

Under this point appellant also argues that the pictures introduced info evidence concerning Mrs. Knight’s shooting and the bloodstained floor from which she was removed are not relevant, material or competent. Here, too, we find this was a matter within the discretion of the trial court. The record shows that at the time Mrs. Knight picked up appellant’s estranged wife, appellant expressed hatred for Mrs. Knight, his mother-in-law. Since the shootings were all one occurrence we are unwilling to say that the photographs could not be introduced for the purpose of showing malice.

POTNT 4. On the issue of insanity, appellant used two expert witnesses, Dr. Shelton Fowler, a psychiatrist on the Arkansas State Hospital staff, and Dr. Robert F. Shannon, a private psychiatrist. Dr. Fowler’s treatment was limited to his duties as an employee of the state hospital. Dr. Shannon was employed by appellant’s mother for purposes of testifying at the trial.

To rebut appellant’s expert testimony, the state called Dr. Tobe, a psychiatrist hired by G-arland County to examine' appellant for purposes of determining his sanity, and Dr. Robert Lewis, a psychiatrist originally employed by appellant’s mother for medical treatment and psychiatric evaluation immediately following appellant’s arrest. Appellant argues that the testimony of the latter two doctors is privileged within the meaning of Ark. Stat. Ann. § 28-607 (Repl. 1962). That statute provides:

“Hereafter no person authorized to practice physic or surgery and no trained nurses shall be compelled to disclose any information which he may have acquired from his patient while attending in a professional character and which information was necessary to enable him to prescribe as a physician or do any act for him as a surgeon or trained nurse. Provided, if two or more physicians or nurses are, or have been in attendance on the patient for the same ailment, the patient by waiving the privilege attaching to any of said physicians or nurses, by calling said physician or nurse to testify concerning said ailment, shall be deemed to have waived the privilege attaching to the other physicians or nurses.”

Wo find that when appellant called Dr. Shannon, as distinguished from Dr. Fowler, who may have served in a different capacity, he waived any privilege which he may have had a right to claim under the statute.

POINT 5. Appellant here argues that the verdict of the jury ignores the overwhelming evidence of insanity and that their verdict is contrary to the evidence and to the law concerning insanity. Our cases, without exception, hold that when there is conflicting evidence upon an issue the matter should he presented to the jury. In this instance there was testimony from which the jury could have found either way. In addition to the lay testimony, two doctors testified that appellant was insane and two doctors for the state testified that appellant was mentally competent. Therefore we find this contention without merit.

POINT 6. In his argument on instructions, appellant admits that the insanity instruction given by the tidal court is in accordance with Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915), but puts forth the argument adopted by the author in 20 Ark. Law Review 123 that the rule in Bell v. State represents “the hardened attitude”. Appellant’s description of the insanity rule laid down in Bell v. State is that of the author of the law review article referred to above. We do not necessarily accept as accurate appellant’s description of the rule there laid down. However, we do acknowledge that the rule of who has the burden of proof on the issue of insanity is not uniform in the many jurisdictions in this nation. The rule in Bell v. State has been applied many times by this court and in a number of cases in which other rules have been rejected. See Stewart v. State, 233 Ark. 458, 345 S.W. 2d 472 (1961). We again reaffirm Bell v. State in holding appellant’s objections to the trial court’s instruction No. 5 to be without merit.

Appellant also complains of error in the trial court’s refusal to give his instructions numbers 1 and 3. His instruction No. 1 had to do with the burden of proof in the whole case and was covered by other instructions given by the court. Appellant’s instruction No. 3 merely gave a definition of preponderance of the evidence, and this too we find was covered by the court’s instructions numbers 5 and 6.

Appellant’s requested instruction No. 9 provides: “You are hereby instructed that if you should find that the defendant, Frank Davis, was in fact under the influence of alcohol and/or drugs to the extent that he would be incapable of forming an intent, then you must find the defendant not guilty of the charge of murder in the first degree.” We find no evidence in the record to warrant the submission of instruction No. 9 with reference to intent. The uncontradicted testimony in the record shows that he was driving his automobile at the lime and that after the shooting he entered his mother’s home and told her that, he wanted a conference with her. It is true that he was found by the officers on the bed in a blacked-out condition, but here again the testimony shows that it was a result of some pills taken subsequent to the shooting.

POINT 7. In arguing that the trial court erred in excluding the appellant and/or permitting his absence during trial, appellant refers to conferences in chambers between the court and counsel. The first such conference was conducted on the admissibility of certain evidence from Officer Seal. This conference was requested by the court and before any proceedings were had, the deputy prosecuting attorney, Mr. Harrison, asked appellant’s counsel if he wanted appellant present. Appellant’s counsel replied, “We don’t know, we don’t know what is going to. happen.” All other such conferences between court and counsel were had at the request of appellant’s counsel.

Therefore, as we read the record there was no exclusion of appellant from the in-chamber hearings. Furthermore the record'shows that all rulings made as result of the in-chamber hearings were again made in open court before the jury, except in those instances when counsel for appellant specifically requested such rulings be made in chambers and not before the jury. Under these circumstances we find that if any error was committed, it was waived by appellant and his counsel. See Davidson v. State, 108 Ark. 191, 158 S.W. 1103 (1913), and Nelson v. State, 190 Ark. 1027, 82 S.W. 2d 519 (1935). In holding that there was a waiver, we specifically point out that appellant was not excluded from such hearings and that the conduct complained of involved matters ordinarily conducted by attorneys upon objections made in open, court prior to the entry in chambers.

POINT 8. Appellant’s last argument is that the imposition of the death sentence constitutes cruel and unusual punishment. In making this argument, appellant acknowledges that this court has held that punishment authorized by statute is not cruel and unusual unless it is barbarous or unknown to the law, or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. In making this statement, however, appellant poses this question, “Does the moral sense of this community, taking a cross-section of its people, adhere to and approve the taking of human life as fit punishment?” Our answer to appellant’s question is that it should be addressed to the legislature instead of the courts, except in those instances wherein the court may exercise its discretion under Ark. Stat. Arm. § 43-2310 (B>epl. 1964). From our reading of the record we are not in a position to say that the punishment assessed is greater than ought to be inflicted under tlie circumstances here shown. We make this observation without determining whether the statute vests the discretion in the trial court or in this court or both.

. In his motion for new trial appellant raised other issues. We find all such issues to be without merit.

Affirmed.

Holt, J., not participating.

Harris, C.J., dissents.

Oarleton Harris, Chief Justice.

I think the trial court committed error by allowing state exhibits No. 7, 8, 9 and 10 to be introduced into evidence. These exhibits all míate to the shooting of Mrs. Pauline Knight, mother of the deceased, Sharon Davis. Mrs. Davis was shot while sitting in her automobile, and Mrs. Knight was shot just outside the Laundromat. Exhibit 7 shows Mrs. Knight lying in front of the Laundromat door; exhibit No. 8 depicts the same scene from a different angle; both No. 9 and No. 10 show a large pool of blood left in the doorway after Mrs. Knight had been removed.

1 do not consider this evidence to be relevant, nor proper, to the crime with which Davis was charged (the murder of his wife). The shooting of Mrs. Knight was an entirely separate offense, for which he could also have been tried, and this evidence had nothing to do with appellant’s motive in killing Mrs. Davis. The majority say:

“Under this point appellant also argues that the pictures introduced into evidence concerning Mrs. Knight’s shooting and the bloodstained floor from which she was removed are not relevant, material or competent. Here, too, we find this was a matter within the discretion of the trial court. The record shows that at the time Mrs. Knight picked' np appellant’s estranged wife, appellant expressed hatred for Mrs. Knight, his mother-in-law. Since the shootings were all one occurrence we are unwilling to say that the photographs could not be introduced for the purpose of showing malice.”

Malice for whom? The majority answer that question by saying that Davis had expressed hatred for his mother-in-law. Since hatred for his mother-in-law was not the reason for his shooting his wife, I can see no reason for the court to have permitted the introduction of these photographs. In State v. Palmer (La.), 80 So. 2d 374, the Louisiana Supreme Court said:

“In determining their admissibility, proper inquiry should be made to ascertain whether such evidence would clarify some material issue and would afford the court and the jury a clearer comprehension of existing physical facts and throw greater light and more accurate appreciation of the weight, if any, to be given the oral testimony. Manifestly, where photographs are irrelevant or immaterial, would confuse, or mislead, rather than be helpful, distract the tribunal’s attention to other than main issues, or where the natural effect of their introduction in evidence would arouse the sympathies or prejudices, rather than throw helpful light, such evidence should be promptly excluded.”

In Volume 1, Wharton’s Criminal Evidence (12th Edition), §' 154, page 299, we find:

‘‘The requirement that evidence be relevant applies to documents and photographs with the same force and effect as to other forms of evidence. They must be relevant to establish or disprove the fact concerning which they are offered

In Volume 2 of the same edition, Section 686, Page 652, it is said:

“As in the case of all evidence, photographs must be relevant, and are inadmissible if they introduce a substantial irrelevant element. Thus a photograph of the victim of the crime and of a weapon is inadmissible when the weapon is not related to the crime.”

In line with these authorities, I maintain that the photographs .of the shooting of Mrs. Knight were not rehwant to establish the fact sought to be proved, i.e., the murder of Mrs. Davis. Mrs. Davis had already been mortally wounded before Airs. Knight was shot, and the photographs therefore were not related to the crime with which Davis was charged and convicted. It is my view that this evidence could only distract the jury’s attention from the main issue, and could only tend to arouse prejudice against appellant.

Because, in my opinion, the court erred in allowing the photographs relating to Mrs. Knight to be introduced, I would reverse the. judgment.

      My emphasis.