author: Robert H. Dudley, Justice.

text:
    Charles D. RAGLAND, Commissioner of Revenues of the State of Arkansas v. PITTMAN GARDEN CENTER and Donald M. PITTMAN, d/b/a PITTMAN NURSERIES COMPANY
    87-195
    739 S.W.2d 671
    Supreme Court of Arkansas
    Opinion delivered November 16, 1987

      Kelly S. Jennings, Revenue Legal Counsel, for appellant.

      Anderson, Crumpler & Bell, P.A., for appellees.
   Robert H. Dudley, Justice.

The sole issue on appeal is whether wages paid by the appellee businesses were subject to the Arkansas income tax withholding laws. The Chancellor held the wages were not subject to withholding. We reverse and remand.

Appellee Pittman Nurseries Company produces a large variety of nursery plants and sells them in the wholesale market. Appellee Pittman Garden Center, Inc., also produces nursery plants but sells most of its production in the retail market. If the nursery and the garden center did nothing more than raise the horticultural products, they would be exempt from withholding income tax on wages because such wages would be for “agricultural labor.” The applicable statutes setting out withholding requirements and the agricultural exemption are set out below.

Ark. Stat. Ann. § 84-2076(a) (Repl. 1980) provides, in part, “Every employer making payments of wages to employees shall deduct and withhold from such wages an amount determined from withholding tables promulgated by the Commissioner and furnished to the employer.”

Ark. Stat. Ann. § 84-2075(m)(3) (Supp. 1985) provides, “ ‘Wages’ means remuneration in cash or other form for services performed by an employee for an employer, except that it shall not include remuneration paid ... for agricultural labor.”

Arkansas looks to federal social security (FICA) law for the definition of “agricultural labor”: “As used in this Act [§§ 84-2074 — 84-2085]: (a) ‘Agricultural labor’ means agricultural labor as defined in United States Code, Title 26, Section 3121(g) [26 U.S.C. § 3121(g)], on January 1, 1967.” Ark. Stat. Ann. § 84-2075(a) (Repl. 1980 & Supp. 1985). The cited United States Code section provides in part:

(g) Agricultural labor
For purposes of this chapter, the term “agricultural labor” includes all service performed—
(1) on a farm, in the employ of any person, in connection with cultivating the soil, or in connection with raising or harvesting any agricultural or horticultural commodity, including the raising, shearing, feeding, caring for, training, and management of livestock, bees, poultry, and fur-bearing animals and wildlife. . . .
As used in this subsection, the term “farm” includes stock, dairy, poultry, fruit, fur-bearing animal, and truck farms, plantations, ranches, nurseries, ranges, greenhouses or other similar structures used primarily for the raising of agricultural or horticultural commodities, and orchards.

26 U.S.C. § 3121(g) (1982) (emphasis added).

As stated above, if the appellees did nothing more than raise horticultural commodities at a nursery they would be exempt from withholding. However, they do more. They direct some of their employees to do landscape work for a related corporation, Pittman Landscape Planners, Inc. The exemption of wages paid for “agricultural labor” is not applicable to wages paid for landscaping. Landscaping services occur after the horticultural products are delivered to the customers’ premises, and 26 U.S.C. § 3121(g)(4)(C) (1982) provides that the exemption for agricultural labor under the federal act shall not apply to services “performed in connection with. . . any commodity after its delivery to a terminal market ... for consumption.”

Therefore, the issue presented by this case is how an employer’s agricultural exemption is determined when the employees perform duties consisting of both agricultural and non-agricultural labor. The answer is found in 26 U.S.C. § 3121(c) (1982). This section provides, in part:

[I]f the services performed during one half or more of any pay period by an employee for the person employing him constitute employment, all the services of such employee for such period shall be deemed to be employment; but if the services performed during more than one-half of any such pay period by an employee for the person employing him do not constitute employment, then none of the services of such employee for such period shall be deemed to be employment.

Id. Section 3121(g) incorporates § 3121(c), with the result that the agricultural labor exemption applies only if the employee in question performs services that constitute valid agricultural labor for at least one-half of any pay period (a period of not more than 31 consecutive days). Since the Arkansas statute expressly defines “agricultural labor” by reference to § 3121 (g), and since § 3121(g) incorporates § 3121(c), the § 3121(c) requirements are also incorporated into the law of this State.

The trial court tried the case on the theory advanced by the appellees that the sole test was whether the nursery and garden center produced more than one-half of the horticultural products sold. This was not the correct test when the undisputed facts showed that the employees performed part of their labor at the terminal market. As set out above, when part of the labor is performed at the terminal market, the applicable test is whether qualifying agricultural labor made up at least one-half of the pay period. Each employee who meets the one-half requirement can be exempt as an agricultural laborer for that pay period.

We have examined the evidence adduced, particularly Defendant’s Exhibit 3, but are unable to determine whether each employee who worked at landscaping devoted at least half of his time during a pay period to agricultural labor. Therefore, we remand for a determination of that issue and ruling consistent with this opinion.

Reversed and remanded.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Robert CASH v. Paul HOLDER, et al.
    87-188
    739 S.W.2d 538
    Supreme Court of Arkansas
    Opinion delivered November 16, 1987

      Meadows, Davis & Goldie, by: James E. Goldie, for appellant.

      Karen B. Walker, for appellee.
   Steele Hays, Justice.

In 1985,52 of the 64 electors residing within the town of Pindall, Arkansas, petitioned the Searcy County Court to reactivate the government of Pindall and order municipal elections pursuant to Ark. Stat. Ann. § 19-112 (Repl. 1980). Appellant, a resident and property owner, intervened in opposition to the reactivation. The county court granted the petition and on appeal to circuit court reactivation was upheld.

Appellant has appealed to this court pursuant to Rule 29(l)(c), interpretation of a statute, contending the circuit court erred: (1) in permitting a reactivation of an incorporated town because the original order was void and (2) in not enforcing state public policy against reactivating long inactive corporate towns.

While these arguments appear to want merit, we are obliged to affirm under Rule 9. The abstract consists solely of a narrative account of the proceedings below, much like a statement of the case. There is no abstract of the pleadings, of the proceedings before the circuit judge, of the exhibits or of the order appealed from. Notably lacking is the original order incorporating the town of Pindall which appellant contends is fatally flawed because it fails to contain provisions he regards as essential. In short, we are unable to follow and intelligently decide the arguments on appeal, given the state of the abstract as presented. Farrco Construction Co. v. Coleman, 267 Ark. 159, 589 S.W.2d 573 (1979); Speed v. Mays, 226 Ark. 213, 288 S.W.2d 953 (1956); Ellington v. Remmel, 226 Ark. 569, 293 S.W.2d 452 (1956); Wells v. Paragon Printing Co., 249 Ark. 950, 462 S.W.2d 471 (1971); Energy Oil Co. v. Rose Oil Co., 250 Ark. 484, 465 S.W.2d 690 (1971).

Affirmed.


author: Tom Glaze, Justice.

text:
    James P. ELKINS v. The Honorable Beth Gladden COULSON, et al. and Cynthia Drake ELKINS
    87-206
    739 S.W.2d 675
    Supreme Court of Arkansas
    Opinion delivered November 16, 1987

      Kelley & Lujfman, for appellant.
    No brief was filed.
   Tom Glaze, Justice.

This cause arose originally from a divorce action between the petitioner, James P. Elkins, and respondent, Cynthia Elkins. While other procedural problems were raised at trial, the one relevant here concerns the trial court’s denial of petitioner’s motion to set aside the divorce decree which the court previously entered. Petitioner appealed from the court’s order denying his motion, but the court of appeals, by memorandum opinion dated April 15,1987, affirmed. Afterwards, Cynthia Elkins moved that the court of appeals award her attorney’s fees for services rendered on appeal, which it did in the sum of $750.00. On June 1, 1987, petitioner requested the court of appeals to reconsider its award of fees, stating that such fees are not authorized by law. On June 17, 1987, the court of appeals denied petitioner’s motion for reconsideration. Thirty-four days later, on July 21, 1987, petitioner filed this action for writ of prohibition against the court of appeals, contending that the court of appeals had exceeded its authority in granting attorney’s fees. We deny petitioner’s request and dismiss.

The writ of prohibition lies where an inferior court is proceeding in a matter beyond its jurisdiction and where the remedy by appeal, though available, is inadequate. Duncan v. Kirby, 228 Ark. 917, 311 S.W.2d 157 (1958). Mere error, irregularity or mistake in the proceedings of the court having jurisdiction does not justify resort to the extraordinary remedy of prohibition. Statewide Health Coordinating Council v. Circuit Court of Pulaski County, 287 Ark. 84, 696 S.W.2d 736 (1985).

While petitioner argues otherwise, his remedy in this matter was to petition for review pursuant to Rule 29(4) (a) of the Rules of the Supreme Court and Court of Appeals of the State of Arkansas. The court of appeals clearly has jurisdiction and authority to award attorneys’ fees in divorce actions, although it may have erred in doing so in this case. We conclude that if the court of appeals did, indeed, err in its award of fees, petitioner’s remedy was one of petition for review to be filed within seventeen calendar days from the date of the court’s decision to grant the fees. That seventeen-day period has since passed.

For the reasons given above, we deny petitioner’s request for writ of prohibition, and, therefore, dismiss his petition.

Newbern, J., not participating.

       Petitioner argues the only authority for the granting of attorney’s fees in the instant case is Ark. Stat. Ann. § 34-1210 (Supp. 1985) and, citing this court’s decision of Floyd v. Isbell, 211 Ark. 631, 201 S.W.2d 755 (1947), he further urges that statute does not apply in this action to vacate a divorce decree.


text:
    Ronald A. YEDRYSEK and Jerry A. YEDRYSEK v. STATE of Arkansas
    CR 87-87
    739 S.W.2d 672
    Supreme Court of Arkansas
    Opinion delivered November 16, 1987
    [Rehearing denied December 21, 1987.]

      James R. Marschewski, for appellant.

      Steve Clark, Att’y Gen., by; Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellants, father and son, were charged with attempted kidnapping and conspiracy to commit kidnapping. They were tried jointly before a jury. Ronald Yedrysek, the father, was found guilty on both counts and sentenced to thirty years and fifteen years, respectively, terms to be served consecutively. His son, Jerry, was found guilty of attempted kidnapping, but was acquitted on the conspiracy charge. On appeal, appellant Ronald Yedrysek raises two points for reversal: 1) the court erred in refusing to set aside his conviction for conspiracy to commit kidnapping when his son and sole co-conspirator was acquitted of conspiracy to commit kidnapping; and 2) the court erred in allowing irrelevant, inflammatory testimony of a police officer into evidence.

On appeal, Ronald repeats the argument he made at trial, that where there are only two alleged co-conspirators, it is legally impossible to find one guilty of the conspiracy and acquit the other. He acknowledges the holding in Shamlin v. State, 19 Ark. App. 165, 718 S.W.2d 462 (1986), wherein the court, citing Ark. Stat. Ann. § 41-713(2)(c) (Repl. 1977), found no merit in petitioner’s argument that his conviction for conspiracy was erroneous because his codefendant was subsequently acquitted. Ronald urges his case is distinguishable because only he and his son were charged with conspiracy, and they were tried jointly.

The general rule has been that conviction of only one defendant in a conspiracy prosecution will not be upheld when all the other alleged conspirators have been acquitted or similarly disposed of. 2 W. LaFave and A. Scott, Substantive Criminal Law § 6.5; Annot., 19 A.L.R.4th 192 (1983). In pre-code cases, Arkansas adhered to the general rule. Gordon v. McLearn, 123 Ark. 496, 185 S.W. 803 (1916); State v. Smith, 117 Ark. 384, 175 S.W. 392 (1915); Cumnock v. State, 87 Ark. 34, 112 S.W. 147 (1908). However, Arkansas adopted our present code in 1975, and joined a substantial minority of jurisdictions, which provide it is no defense that the co-conspirators have been either acquitted or convicted of a different offense. Ark. Stat. Ann. § 41-713(2)(c) (Repl. 1977); see 2 W. LaFave, supra, at 115. The rationale for allowing an inconsistent disposition or verdict is as follows: “ [I] t recognizes that inequalities in the administration of the law are to some extent inevitable, that they may reflect unavoidable differences in proof, and that, in any event, they are a lesser evil than granting immunity to one criminal because justice may have miscarried in dealing with another.” Model Penal Code § 5.03 explanatory note at 402 (Official Draft and Revised Comments 1985).

Nevertheless, neither the law nor the commentaries support inconsistent verdicts in the case of a joint trial, where no others are alleged to have been involved. 2 W. LaFave, supra; Model Penal Code, supra. Other jurisdictions, which otherwise allow inconsistent verdicts in separate trials, have recognized the vitality of the rule of consistency in joint trials. See People v. Nunez, 183 Cal. App. 3d 214, 228 Cal. Rptr. 64 (1986); Marquiz v. People, 726 P.2d 1105 (Colo. 1986); Smith v. State, 250 Ga. 264, 297 S.E.2d 273 (1982); Minniefield v. State, 512 N.E.2d 1103 (Ind. 1987); Gardner v. State, 286 Md. 520, 408 A.2d 1317 (1979); Commonwealth v. Cerveny, 387 Mass. 280, 439 N.E.2d 754 (1982); People v. Anderson, 418 Mich. 31, 340 N.W.2d 634 (1983); State v. Hawkins, 178 N.J. Super. 321, 428 A.2d 1322 (1981); Commonwealth v. Byrd, 490 Pa. 544, 417 A.2d 173 (1980); State v. Valladares, 99 Wash. 2d 663, 664 P.2d 508 (1983).

The Washington case, State v. Valladares, contains almost identical facts to the case at hand. There, two defendants were charged with conspiracy to deliver a controlled substance. They were tried jointly, and Valladares was found guilty on the conspiracy charge, but his sole alleged conspirator was acquitted. Like our criminal statutes, Washington state’s code provides that it is not a defense to a charge of criminal conspiracy that the person with whom the accused is alleged to have conspired has been acquitted. That state’s statute also requires, as an element of criminal conspiracy, an agreement with one or more persons. The Valladares court stated:

Clearly failure to prosecute the only co-conspirator, or an inconsistent disposition or inconsistent verdict in a different trial, would not affect a defendant’s guilt. [Cite omitted.] But, conviction of a defendant accompanied by the acquittal of the only alleged co-conspirator in a joint trial, when no unnamed co-conspirators have been alleged, necessarily leads to inconsistent verdicts within the same trial. One verdict would recognize the existence of the requisite corrupt agreement and the other would deny its existence. It is not logical to assume the Legislature intended such a result in joint trials of co-conspirators. It is logical to assume, however, [the statute] was intended to apply only to the effect of inconsistent verdicts in separate or different trials of alleged co-conspirators. [644 P.2d at 513.]

Our research reveals no cases that uphold inconsistent verdicts that resulted from joint jury trials of all alleged conspirators. We believe the rationale allowing inconsistent verdicts in conspiracy cases where the conspirators are separately tried does not obtain in the case of joint trials. Unlike where separate trials are involved, the state in a joint trial tries the co-conspirator by use of the same proof bearing on the same charges and offered before the same court or jury. In sum, the prospects of inequality in the administration of the law is greatly reduced when co-conspirators are tried together and inconsistent verdicts are more difficult to explain as anything but an aberrant or miscarriage of justice. Accordingly, we reverse and dismiss Ronald’s conviction for conspiracy to commit kidnapping.

For his second point, Ronald argues the court erred in allowing irrelevant, inflammatory testimony of a police officer into evidence. Appellants were arrested on January 5, 1986, for the attempted kidnapping of Harrelyn Ballentine. After a search of an automobile in which appellants were riding revealed evidence of a conspiracy to kidnap Audrey Ballentine, officers went to Ronald’s home on January 8 to arrest him on the conspiracy charge. Two officers went to the back door; three to the front. Officer Clay Thomas testified that when Ronald’s wife answered the front door, she told them Ronald would be there in a moment, and then shut the door. Ronald was apprehended as he left the house by the back door.

Ronald contends the introduction of this testimony about an arrest three days after the original arrest was irrelevant and only served to inflame and prejudice the jury. He also urges the State should not have been allowed to argue this evidence in closing argument.

The evidence was admissible to show Ronald’s culpable mental state, and flight to avoid arrest or trial is admissible as a circumstance in corroboration of evidence tending to establish guilt. Mason v. State, 285 Ark. 479, 688 S.W.2d 299 (1985). There is nothing in the abstract of record to show Ronald objected to remarks made in closing argument, and we do not consider issues raised for the first time on appeal. Stephens v. State, 293 Ark. 366, 738 S.W.2d 91 (1987). In addition, the closing remarks were not abstracted but only referred to in the argument section of appellants’ brief. Even so, having held the evidence admissible, and allowing the trial judge wide discretion in controlling the arguments of counsel, we hold there was no error.

We reverse and dismiss Ronald Yedrysek’s conviction for conspiracy to commit kidnapping but affirm the conviction for attempted kidnapping.


author: Per Curiam.

text:
    Keith Melvin DUBRAY v. STATE of Arkansas
    739 S.W.2d 166
    Supreme Court of Arkansas
    Opinion delivered November 16, 1987

      James R. Marschewski, for appellant.
    No response.
   Per Curiam.

Petitioner Keith Melvin Dubray, by his attorney, has filed a motion for a rule on the clerk. His attorney, James R. Marschewski, has by affidavit admitted it was his fault that the record was not timely tendered.

We find that the error, admittedly made by the criminal defendant’s attorney, is good cause to grant the motion for a rule on the clerk.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Per curiam.

text:
    Neil S. FINLEY v. STATE of Arkansas
    739 S.W.2d 166
    Supreme Court of Arkansas
    Opinion delivered November 16, 1987

      Larry Dean Kissee, for appellant.
    No objection.
   Per curiam.

Appellant, Neil S. Finley, by his attorney, has filed for a rule on the clerk.

His attorney, Larry Dean Kissee, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1919, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    William E. GORDON v. STATE of Arkansas
    739 S.W.2d 539
    Supreme Court of Arkansas
    Opinion delivered November 16, 1987

      James R. Marschewski, for appellant.
    No response.
   Per Curiam.

The record in case CR-86-330 from Sebastian Circuit Court was untimely tendered because an order for an extension of time to file the record was obtained late. The attorney for appellant, James R. Marschewski, admits responsibility. This admission by defense counsel constitutes good cause for granting the motion. Per Curiam Order of February 5,1979, 265 Ark. 964. Accordingly, the motion for rule on the clerk is granted.

A copy of this order will be sent to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Larry PRATER, For the Use and Benefit of the ESTATE of Victor PRATER, Deceased v. ST. PAUL INSURANCE COMPANY and Glen DIXON, Jr., M.D.
    87-15
    739 S.W.2d 676
    Supreme Court of Arkansas
    Opinion delivered November 23, 1987

      Hale, Fogleman & Rogers, for appellant.

      Nance & Nance, P.A., for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal is from the granting of summary judgment on a medical malpractice claim. Victor Prater went to the emergency room at Crittenden Memorial Hospital in the early evening on May 22, 1979, complaining of head and abdominal pains. He was seen by the appellee, Dr. Glen Dixon, Jr. After an examination, Prater was prescribed an antipsychotic drug and released. He died at home several hours later from peritonitis secondary to a ruptured ulcer. The appellant, Larry Prater, as administrator of the estate, brought suit against Dr. Dixon and St. Paul Fire and Marine Insurance Co., liability carrier for Crittenden Memorial Hospital, a non-profit corporation, alleging negligence in the care and treatment of Prater. Dr. Dixon moved for summary judgment on the grounds that the estate did not have the required expert testimony to establish that Dr. Dixon failed to act according to the degree of skill and care required by the community. The trial court granted the summary judgment, and the estate appeals from that decision.

On appeal the estate argues the trial court erred in granting the summary judgment and in disallowing the use of Dr. Dixon’s deposition as evidence of his liability. It further alleges a portion of the Arkansas Medical Malpractice Act, Ark. Stat. Ann. § 34-2615(c) (Supp. 1985), is unconstitutional. We find the summary judgment argument has merit and reverse on that ground.

The estate claims the trial court erred in granting the summary judgment because under the proof presented a question of fact existed as to Dr. Dixon’s negligence in failing to properly diagnose and treat Prater’s condition. In reviewing motions for summary judgment, the burden is on the moving party to demonstrate that there is no genuine issue of fact for trial. The evidence submitted in support of the motion is viewed most favorably to the party against whom the relief is sought. Clemens v. First National Bank, 286 Ark. 290, 692 S.W.2d 222 (1985). “Summary judgment is not proper where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypotheses might reasonably be drawn and reasonable men might differ.” Id. at 293.

In granting summary judgment, the court held: (1) the deposition of the appellee, Glen Dixon, Jr., M.D., could not be used against him by the appellant, and (2) that the pleadings, depositions, answers to interrogatories, admissions and affidavits on file show that there is no genuine issue of material fact and that the appellee is entitled to a summary judgment as a matter of law. We find there was a genuine issue of material fact and reverse the trial court.

Ark. Stat. Ann. § 34-2614 (Supp. 1985) provides:

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

Expert testimony is required when the asserted negligence does not lie within the jury’s comprehension; when the applicable standard of care is not a matter of common knowledge; and when the jury must have the assistance of expert witnesses to decide the issue of negligence. Sexton v. St. Paul Fire & Marine Insurance Co., 275 Ark. 361, 631 S.W.2d 270 (1982); David v. Kemp, 252 Ark. 925, 481 S.W.2d 712 (1972).

The estate furnished the deposition of Dr. Milton Lubin to show Dr. Dixon had not exercised the appropriate standard of care. Dr. Lubin stated that based upon his review of the emergency room records and the autopsy report, he was of the opinion that Dr. Dixon did not properly diagnose and treat Prater. He found that Dr. Dixon had violated the appropriate standard of care in failing to perform certain laboratory tests, record an adequate history, and observe that the patient had outward appearances of chronic illness calling for a more thorough examination. This testimony was sufficient to create a question of fact as to whether Dr. Dixon failed to perform services in accordance with the community’s standard of care.

Whether or not this failure to perform according to community standards contributed to or caused the death was also a jury question. Dr. Dixon provided expert testimony that the perforation had not occurred at the time Prater was seen at the hospital. Dr. Fahmy A. Malak, the state medical examiner, stated in his deposition that Prater was suffering from a silent ulcer and there would not have been any symptoms until it was perforated. He further stated that the time between the death and the perforation could have only been an hour. Dr. Jerry T. Francisco, the Shelby County Medical Examiner, stated in his affidavit that in his opinion “the interval of time between the rupture of the duodenal ulcer, the spilling of the fluid on to the peritoneal cavity, and death, was relatively short. Based upon this information, I am of the opinion that Victor Prater was probably not suffering from a perforated ulcer and peritonitis when examined by Dr. Glen Dixon.”

This testimony was contradicted by affidavits of three witnesses which stated Prater was complaining of severe stomach pain, both before and after he was seen in the hospital. The affidavit of Ernest Prater, brother of the deceased, noted in particular that he specifically questioned the doctor about his brother’s stomach and that during the conference with the doctor, his brother was still complaining of his stomach, could not fasten his pants, and was still bent over.

Dr. Lubin concluded that the perforation must have occurred before Prater was seen at the hospital even though he admits that he was not qualified to determine when the perforation occurred. Prater bolstered his testimony with a medical treatise, which stated generally that it takes twelve hours for peritonitis to develop after perforation. This testimony coupled with the affidavits created a question for the jury to determine.

As a second point on appeal, the estate argues the trial court erred in refusing to allow him to use Dr. Dixon’s discovery deposition as evidence of his liability for medical malpractice. In response to a hypothetical question, assuming Prater was bent over with stomach pains, Dr. Dixon stated such a condition would not have been inconsistent with a perforated ulcer and would cause him to perform certain tests which were not done to diagnose that condition. Dr. Dixon further stated failure to perform such tests was a failure to follow the applicable standard of care.

Ark. Stat. Ann. § 34-2615(c) (Supp. 1985) grants a privilege to medical care providers not to provide expert opinion testimony against themselves as to the degree of skill and learning possessed by members of the profession in the area, as to whether the medical care provider failed to act in accordance with the standard, and whether as a proximate result thereof, the injured person suffered injuries which would not have otherwise occurred. The statute further provides that the privilege does not apply to discovery and that discovery information can be used at trials as in other lawsuits.

The trial court granted this statutory privilege to Dr. Dixon. The estate claims Ark. Stat. Ann. § 34-2615(c) (Supp. 1985) violates the equal protection and the privileges and immunities clauses of the United States and Arkansas Constitutions and that it is also unconstitutional because it usurps this court’s authority to establish rules of practice, pleading, and procedure. We do not consider these constitutional arguments since they were not properly submitted to the trial court for ruling.

In order to fully address this issue, it was necessary for us to go to the record where we found that the first mention of unconstitutionality was in a supplemental response filed by the estate to the motion for summary judgment. In this pleading, the estate categorically claimed that the “Arkansas Medical Malpractice Act is unconstitutional.” Subsequently, the trial court, in its order of July 21, 1986, granted summary judgment without mentioning the constitutionality issue. On March 17, 1987, the trial court filed a supplemental order in response to a motion for clarification of previous orders (including the July 21, 1986 order) stating: “That on July 21, 1986, this Court did grant the Motion for Summary Judgment of the Defendant Glen Dixon, Jr. and dismiss Plaintiffs Complaint against Dr. Dixon with prejudice, over the objection of the Plaintiff that there were material issues of fact in issue, and that the Arkansas Malpractice Act under which the suit was brought was unconstitutional.” The court also reaffirmed its earlier finding that the deposition of Dr. Dixon could not be used against him by the appellant.

The trial court was obviously in error in his supplemental order of March 17, 1987, when it stated its previous order of July 21, 1986, was over the objection “that the Arkansas Malpractice Act was unconstitutional” as his order of July 21, 1986 did not mention this constitutional issue. Our search of the record fails to disclose that the constitutionality of the Arkansas Medical Malpractice Act, or in particular, Ark. Stat. Ann. § 34-2615(c) (Supp. 1985), was properly briefed and argued to the trial court, or that the trial court made an adjudication as to the constitutionality of the act or the statute. In short, we do not find that the constitutional issues were sufficiently raised before the trial court, thus, we do not consider them on appeal. Widmer v. Widmer, 293 Ark. 296, 737 S.W.2d 457 (1987).

In addition, Ark. Stat. Ann. § 34-2510 (Repl. 1962), provides when declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration and that no declaration shall prejudice the rights of persons not parties to the proceeding and, if the statute is' alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding entitled to be heard. That was not done in this case. Under the circumstances, we find the trial court erred in not requiring that the attorney general be served with notice of the proceeding and be given an opportunity to be heard. See, e.g. Roberts, County Judge v. Watts, County Clerk, 263 Ark. 822, 568 S.W.2d 1 (1978). The purpose of the notice requirement is to prevent a statute from being declared unconstitutional in a proceeding which might not be a fully adversary and complete adjudication. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982).

Aside from the constitutional arguments, the estate contends the deposition is admissible pursuant to Ark. R. Civ. P. 32(a)(2), which allows a party to use the deposition of an adverse party for any relevant purpose. Paragraph (a) of Rule 32 limits this argument in that it allows the use of an adverse party’s deposition only “so far as admissible under the rules of evidence.” In addition, A.R.E. Rule 501 recognizes privileges provided by the constitution, statute, or court rules. Ark. R. Civ. P. 26(b)(1) states that privileged matters are not discoverable. For these reasons, the trial court correctly disallowed the use of Dr. Dixon’s deposition for the purpose of establishing a failure to comply with the applicable standard of care in a medical malpractice case.

Reversed and remanded.


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

text:
    DREW v. KATV TELEVISION, INC.
    87-187
    739 S.W.2d 680
    Supreme Court of Arkansas
    Opinion delivered November 23, 1987

      Lincoln & Orsini, P.A., by: Bob Lawson, Jr., for appellant.

      Ramsay, Cox, Lile, Bridgeforth, Gilbert, Harrelson & Starling, by: Spencer F. Robinson, for appellee.
   Darrell Hickman, Justice.

This is a defamation suit. William Drew, a Lake Village attorney, sued KATV, claiming that the television station defamed him in news broadcasts on July 10, 1984, and July 25, 1984. It was reported during one broadcast that he had been charged with a felony, when he was actually charged with two misdemeanor counts of solicitation to tamper with evidence. These charges were ultimately dismissed at trial. Drew also alleged that the news reports implied that he was involved in a drug investigation being conducted at the Chicot County Memorial Hospital, where he served as Chairman of the Board of Governors.

The trial judge dismissed the case on a motion for summary judgment, reciting in a letter to the parties his finding that Drew was a “public figure.” A public official or public figure can only recover damages for defamation against a media defendant by proving that the media’s defamatory statements were made with actual malice. There is no evidence of actual malice in this record.

We find that Drew was a public official: a lesser one, perhaps, but nonetheless, one of sufficient importance that the public had an interest in his position and the manner in which he performed it. See Rosenblatt v. Baer, 383 U.S. 75 (1966). Drew was appointed to his position as Chairman of the Board of Governors by the county judge and, evidently, served in that position for fifteen years. In addition, it appears that the Chicot County Hospital is publicly owned and operated. While that fact is not seriously disputed, Drew will not actually concede that the hospital is a “public” institution, arguing that it operates on its “own revenues.” We deem this distinction too fine to warrant a finding that a material fact is in dispute sufficient to preclude summary judgment.

We often refer to other decisions in determining whether a particular person is a public official. We have held that a lawyer is not a public official. See Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979). However, we have found that an assistant law school dean is; see Gallman v. Carnes, 254 Ark. 987, 497 S.W.2d 47 (1973); likewise, a deputy sheriff is, and so are city police officers. See Hollowell v. Arkansas Democrat Newspaper, 293 Ark. 329,73 S.W.2d 646 (1987); Lancaster v. Daily Banner-News Publishing Co., Inc., 274 Ark. 145, 622 S.W.2d 671 (1981). Even a grade school wrestling coach has been held to be a public official. See Johnston v. Corinthian Television Corp., 583 P.2d 1011 (Okla. 1978).

We find that Drew was holding a position of considerable public responsibility as chairman of the board of a county hospital and was, therefore, a public official. Absent evidence of actual malice, summary judgment was proper.

Appellant argues that upon viewing the broadcasts as a whole, a jury might have reached different conclusions as to the existence of actual malice. He claims, therefore, that summary judgment was improper, and that the presence or absence of actual malice was a question for the jury. However, in Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505 (1986), the United States Supreme Court held that on a motion for summary judgment, in a case involving the actual malice standard, the court must determine whether the evidence presented could support a reasonable jury finding that actual malice was shown by clear and convincing evidence. Clearly, the evidence in this case could not support such a finding, and the trial judge was correct in granting summary judgment.

Affirmed.

Purtle, J., concurs.

John I. Purtle, Justice,

concurring. I concur in the result because I do not believe there were sufficient allegations of fact to support a verdict for damages for defamation. However, I disagree with the opinion in holding that the appellant was either a “public official” or a “public figure” because the facts as developed in the pleadings do not support such a finding. If the issue is disputed, it is the duty of the trial court to make an independent determination of whether the plaintiff is a public official or public figure. Rosenblatt v. Baer, 383 U.S. 75, 88 (1966). See Cornett & Smith v. Prather, 293 Ark. 108, 737 S.W.2d 159 (1987). This case was not developed on that issue. However, since there was no genuine issue on defamation, it is not necessary to address the matter of actual malice.

I wish to point out that a media defendant stands in no better position than any other defendant in a defamation action. Dun & Bradstreet v. Greenmoss Builders, _ U.S __, 105 S.Ct. 2939 (1985). The media is subject to the same standard as the general public.

       KATV contended in its motion for summary judgment that Drew was either a public official or a public figure. Drew responded that he was neither. The order simply granted summary judgment and referred the parties to a letter in which the trial judge found Drew to be a public figure. On appeal Drew concentrated his efforts on arguing that he was not a public figure. KATV, in its brief, continued to argue that Drew was either & public official or a public figure. Consequently, in Drew’s reply brief, he argued primarily that he was not a public official. The trial judge may have been using the term “public figure” loosely, intending it to encompass “public official,” too. These terms are used loosely in the record but have distinct meanings in the law of defamation. Ultimately, if Drew was either a public official or a public figure, summary judgment was proper.


author: Darrell Hickman, Justice.

text:
    Troy MITCHELL v. FIRST NATIONAL BANK IN STUTTGART
    87-211
    739 S.W.2d 682
    Supreme Court of Arkansas
    Opinion delivered November 23, 1987

      Daggett, Van Dover, Donovan & Cahoon, by: Jimason J. Daggett, for appellant.

      Dennis R. Maloch, for appellee.
   Darrell Hickman, Justice.

First National Bank of Stuttgart loaned $25,000 to Ralph Mitchell as an accommodation to one of its regular customers, Troy Mitchell. Troy, who is Ralph’s brother, signed an agreement guaranteeing repayment of the loan. Troy did not want his brother to know he had guaranteed repayment of the loan. The loan was also to be secured by a mortgage on land Ralph owned in Texas. Troy had a prior lien on the Texas land, taken when the brothers dissolved their joint farming operation. When Ralph defaulted on the loan, the bank sued Troy for the outstanding balance of $7,981.04. It was stipulated that the mortgage had never been recorded. Troy denied the obligation, and the bank applied funds held in a certificate of deposit, which was in Troy and his grandson’s name, to setoff the balance of the loan. Since the debt was satisfied, the bank dismissed its lawsuit. Troy demanded that the bank return the funds within five days or he would bring suit against the bank for wrongfully converting the certificate. When the bank learned it did not have a signature card authorizing the right of setoff, the funds were restored. The lawsuit was refiled against Troy. Troy and his grandson counterclaimed for conversion of the certificate.

The case was submitted to a jury, which returned a verdict for the bank in the amount of $2,500 on the guaranty agreement and awarded Troy and his grandson $62.06 in compensatory damages on their conversion claim. The $62.06 was the amount of interest the bank failed to tender when the certificate was restored.

Troy makes three arguments on appeal. First, he argues that the trial judge erred in failing to direct a verdict for the appellant on the guaranty agreement. He argues that the guaranty agreement should have been rescinded because it was undisputed that a mutual mistake existed at the time the agreement was signed.

A mutual mistake is a mistake common to both parties. Before a mutual mistake will affect the binding force of a contract, the mistake must be of an existing or past material fact which is the basis of the contract. See 17 Am. Jur. 2d Contracts § 143 (1964). A contract may be rescinded for a mutual mistake of a material fact. Carter v. Matthews, 288 Ark. 37, 701 S.W.2d 374 (1986). An example of a mutual mistake is First National Bank of Wynne v. Coffin, 184 Ark. 396, 42 S.W.2d 402 (1931). Farm property was purchased, but neither the buyer nor seller knew the land had been platted and subdivided with streets dedicated to the city. Both parties were also mistaken as to the exact acreage of the farm; both thought it was larger than it actually was.

At trial, Troy seemed to argue that the mutual mistake the parties were operating under was that the mortgage was recorded prior to his signing the guaranty agreement and that he was thus protected. In his opening statement, the appellant’s attorney stated:

I think the bank would never have asked Troy Mitchell to execute this guaranty agreement had they known the mortgage was not on record. And I don’t think anything about it I know that Troy Mitchell never would have executed it had he known that the mortgage was [not] on record.

In his closing argument, he told the jury that:

If as a matter of fact Troy Mitchell was induced. . .led to . . . execute that guaranty agreement with an understanding that the note had been secured then you are told in such event that your verdict should be for Troy Mitchell and against the First National Bank on the note.

In addition, the testimony of Troy Mitchell and Mr. Neukam, the loan officer, confirms that this was the appellant’s argument at trial. Troy was asked the following question:

Q. In the absence of the assurance that was given you by the loan officer and your own belief that the documents were recorded . . . that a lien was properly created irrespective of recording would you have signed this document?
A. Oh, if I had any idea that it wasn’t, ah, bankable where I was protected, no, sir, I would not have signed it. Because that was my request to see that I was protected and . . . and I would not have signed had I not thought I was protected with, ah, ah, the documents in proper order.

Finally, Mr. Neukam testified that when Troy came to his office to sign the guaranty agreement, he (Mr. Neukam) told Troy that everything he asked for had been done. Specifically, he testified:

Q. You believed the note had been properly drawn?
A. Yes, sir.
Q. And the mortgage had been properly drawn?
A. Yes, sir.
Q. And recorded?
A. To my knowledge.
Q. But that was your . . .
A. That was my understanding.
Q. My understanding. Did you . . . was that Troy’s understanding.
A. Yes, sir.

Based on the above testimony and arguments made by the appellant’s attorney at trial, appellant was clearly arguing that the mutual mistake was the assumption that the mortgage was recorded at the time he signed the guaranty agreement.

However, the appellant has subtly altered his argument on appeal. In his brief he contends:

It is thus established that both the bank and the guarantor, prior to the execution of the Guaranty Agreement, had a mutual understanding and agreement that a lien would be created to secure the payment of the note and thus protect the guarantor in the event of default, giving him collateral from which to recoup his own payment if he be required to make it.

While this has only slightly altered the character of the mutual mistake alleged by the appellant at trial, it is definitely a different argument from that raised below. Below, the mutual mistake was the assumption that the mortgage was recorded at the time the agreement was signed; now the appellant contends that the assumption was that the mortgage would be recorded at some point. This argument is both broader than the one made below and more tailored to the bank’s understanding of the procedure followed in obtaining a loan. However, the fact remains that this is not the same argument made below and, consequently, we are not bound to consider it. See Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985).

The bank objected to all the testimony about what was intended regarding the mortgage, arguing that the appellant was trying to alter the written guaranty agreement by oral testimony, which cannot be done. The appellant said he was attempting to show a “mutual mistake” of fact, not change the agreement. The result is the same; if the appellant’s testimony is accepted, it would alter the written instrument.

Even so, the question to us is: was the trial judge wrong in refusing to direct the verdict for the appellant because there was a “mutual mistake?” On appeal, all evidence is considered in a light most favorable to the appellee. Sipes v. Munro, 287 Ark. 244, 697 S.W.2d 905 (1985). In considering whether the trial judge erred in refusing to direct the verdict, we examine the evidence in a light most favorable to the non-moving party (the bank in this case), and, if there is any substantial evidence to support the non-moving party, a question of fact was presented and the motion should have been denied. Ellis v. Feemster, 285 Ark. 385, 687 S.W.2d 835 (1985), In this case, there was substantial evidence to support the bank’s position that the mistake was not “mutual.” On cross-examination Mr. Neukam testified:

Q. When normally do you record a mortgage?
A. As soon as the money’s disbursed.
A. All right. And the money was disbursed after the guaranty signed, right?
A. Right. . . .
Q. And so you couldn’t have told him or indicated to him then or wouldn’t have on the date of the signing of the Guaranty Agreement that the mortgage had been recorded already you wouldn’t have recorded it. You wouldn’t have until after the money was disbursed, right?
A. That is correct.
Q. So your understanding with Mr. Mitchell was that he would sign the agreement... the Guaranty Agreement when you had the note and mortgage signed by Ralph Mitchell.
A. Right.

Based on this testimony, we cannot say as a matter of law that this case involved a mutual mistake that would allow rescission of the guaranty agreement.

Therefore, the trial judge was correct in refusing to grant the motion for directed verdict.

Appellant’s second argument is that there was no evidence to support the verdict of $2,500. He points out that after the case was submitted to the jury, the jury returned and asked the court the following question:

If we feel both parties are at fault, it is possible to divide the settlement of $7,900 . . . between both Mr. Mitchell and First National?

Based on this question, the appellant argues that the jury rendered a “split” verdict. We had the same issue in Pate v. Hook, 262 Ark. 411, 557 S.W.2d 391 (1977), and Fulbright v. Phipps, 176 Ark. 256, 3 S.W.2d 49 (1925). If a compromise award is supported by substantial evidence, we cannot increase or decrease it although the evidence would tend to support an award of the full amount owed or nothing at all. The judge rightfully refused to further instruct the jury. There was substantial evidence to support an award for $7,981.04; therefore, the appellant should not complain about a judgment for $2,500.

Finally, it is argued that the court erred in failing to submit the issue of punitive damages to the jury on the conversion issue. The instruction refused is not abstracted; therefore, we do not address this question. Strickland v. Quality Bldg. & Security Co., 220 Ark. 708, 249 S.W.2d 557 (1952). See also Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584 (1979) (regarding the wrongful use of AMI 2217).

Affirmed.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    Vincent THOMAS v. Patti Ann PACHECO
    87-100
    740 S.W.2d 123
    Supreme Court of Arkansas
    Opinion delivered November 23, 1987

      Sherman & James, by: Paul J. James, for appellant.

      Redden & Associates, by: Michael Redden, for appellee.
   Darrell Hickman, Justice.

Patti Ann Pacheco brought this case to determine the father of a child born to her on June 3, 1984. She was married at the time to Carlos Pacheco but claimed that Vincent Thomas was the father. Blood tests indicated that the husband could not be the father and that it is virtually certain (99.5%) that Thomas is the father. The county court and the trial judge found that Thomas is the father.

In this case, out of state experts performed and certified the blood tests, and when one of those experts failed to honor a subpoena, the trial judge ordered a telephone deposition of another. Under the circumstances, this procedure did not satisfy the statutory right to subpoena the expert performing the blood tests for questioning at trial. See Ark. Stat. Ann. § 34-705.2 (1985). The trial judge should not have ordered the deposition as a substitute for a face-to-face confrontation. It was also error for the trial judge to permit the husband and wife to testify that they did not have sexual intercourse during the critical time period. Such testimony, concerning the non-access of the husband in a bastardy proceeding, has long been deemed inadmissible in Arkansas. These two errors require us to reverse the judgment and remand the case for further proceedings.

THE FACTS

Patti Pacheco and her husband, Carlos Pacheco, had one child when they separated in June of 1983. They both testified to seeing each other on a regular basis but denied that they had sexual relations from the time they separated until April, 1984, when Mrs. Pacheco was seven months pregnant.

Mrs. Pacheco met Vincent Thomas in July, 1983, when both worked at a Little Rock restaurant. She testified that they began having sexual intercourse August 5, 1983. She remembers the date because two days later she left for a trip to Washington. Mrs. Pacheco testified that from that date until she resumed sexual relations with her husband, two months before the baby was born, she did not have sexual intercourse with anyone other than Thomas.

On June 3,1984, Mrs. Pacheco gave birth to a full term baby boy. At the time, she and her husband had reconciled, and the birth certificate lists Carlos Pacheco as the father of the child. In addition, her husband’s insurance company paid all the medical expenses relating to the delivery. The Pachecos have remained married.

A year after the child was born, Mrs. Pacheco brought this paternity suit against Vincent Thomas in Pulaski County. Thomas admitted that he had sexual relations with the appellee but denied paternity, claiming that the relationship did not begin until October, 1983. The county court apparently ordered all interested parties to undergo blood tests. (Part of the record was lost, and we only have an agreed upon reconstruction, approved by the court.) The tests were conducted by Roche Biomedical Laboratories. Thomas’ blood was drawn at the laboratory’s Little Rock location, while the blood of the child and Mr. and Mrs. Pacheco was drawn at Roche’s office in San Antonio, Texas. All of the blood samples were then sent to Roche’s office in Burlington, North Carolina, for analysis.

Mr. Pacheco’s test established that he could not be the child’s father, because he lacks the leucocyte antigen A26, which is present in the child and absent in the mother. His test results were certified by an affidavit signed by Dr. Ronald Barwick. The test on Thomas revealed that he possesses the leucocyte antigen A26, and that he shares other common genetic markers with the child. This test indicates that it is 99.5% probable that Thomas is the father of the child. The results of his test were certified by an affidavit signed by Dr. Scott Foster. Relying on this and other evidence, the county court ruled that Thomas was the father and ordered him to pay half of the laying-in expenses as well as child support in the amount of $30 per week. Thomas appealed to the Pulaski County Circuit Court for a de novo review. The circuit court affirmed the county court’s decision, and Thomas appealed to us.

THE ISSUES

(1) Testimony of the husband and wife as to non-access.

In the circuit court, Thomas made numerous objections to the Pachecos’ testimony that they did not have sexual intercourse during the period of conception. Nevertheless, the trial court allowed them to testify freely on this subject. In a bastardy proceeding, the husband and wife cannot testify to the non-access of the husband. This has been a common law rule of evidence since 1770 and is known as Lord Mansfield’s Rule. Arkansas adopted this rule in 1915 in Kennedy v. State, 117 Ark. 113, 173 S.W. 842 (1915), and has adhered to it ever since. See Dunn v. Davis, 291 Ark. 492, 725 S.W.2d 853 (1981)\Spratlin v. Evans, 260 Ark. 49, 538 S.W.2d 527 (1976). The reason for prohibiting this testimony is that it defiles the married state of the parties and allows married people to declare illegitimate a child born of their marriage, a child the law presumes to be legitimate. Lord Mansfield’s Rule is an old rule, but not without its critics. Indeed, Dean Wigmore, a prominent scholar in the field of evidence, is one of the foremost critics of the rule. He claims that there was never any true precedent for the rule announced by Lord Mansfield, and that the asserted reasons for the rule are artificial. He argues that there is no indecency in allowing people to testify that they were apart during a particular time period, and that if it is indecent to allow parties to bastardize their children, then the rule should not allow it by any means. Wigmore points out that under the rule, the parties may testify as to any fact leading to the conclusion of illegitimacy other than non-access. Finally, he argues that the best obtainable evidence should be used to prove every disputed fact, since the primary object of the common-law rules of evidence is to ascertain the truth concerning the facts in issue. 7 J. Wigmore, Wigmore on Evidence § 2063 (1978).

Wigmore makes a good argument. But there is more at issue than a rule of evidence. Marriage is still considered an honorable institution; children born during marriage should be deemed legitimate, and legal efforts to declare such children illegitimate are not and should not be made easy.

Belief in that principle is so great that we have created a legal presumption to protect it. This presumption, that a child born during marriage is the legitimate child of the parties to that marriage, is one of the strongest presumptions recognized by the law. See Jacobs v. Jacobs, 146 Ark. 45, 225 S.W. 22 (1920). It can be overcome, but not easily. We have consistently held that the presumption is rebuttable only by the strongest type of conclusive evidence, such as the husband’s impotence, or the non-access of the parties. See Dunn v. Davis, supra; Spratlin v. Evans, supra. It is in this regard that Lord Mansfield’s Rule comes into play. The appellee’s attorney in this case candidly admits that he offered the testimony of Mr. and Mrs. Pacheco to establish the non-access of the parties in an effort to overcome the presumption of legitimacy; that is precisely what Lord Mansfield’s Rule will not allow. We decline to abandon this time-honored rule of evidence that favors the institution of marriage and protects the innocent children born thereof. Children should not, if at all possible, pay for the irresponsible conduct of adults. We will continue to prohibit the parties to a marriage from denying the husband’s participation in a birth; proof of such non-access must come from other sources.

(2) The blood tests.

In Richardson v. Richardson, 252 Ark. 244, 478 S.W.2d 423 (1972), we approved the use of blood tests to determine paternity, and undoubtedly the tests are valuable evidence. However, in order for such tests to be admissible, the proper procedure, as set forth in Ark. Stat. Ann. §§ 34-705.1 and 34-705.2 (Supp. 1985), must be followed. Section 34-705.1 provides:

Whenever it shall be relevant to the prosecution or the defense in an illegitimacy action, the trial court may direct that the defendant, complainant and child submit to one (1) or more blood tests or other scientific examinations or tests, to determine whether or not the defendant can be excluded as being the father of the child, and to establish the probability of paternity if the test does not exclude the father [defendant]. The results of the tests shall be receivable in evidence. The tests shall be made by a duly qualified physician, or physicians, or by another duly qualified person, or persons, not to exceed three (3), to be appointed by the court. The costs of the test shall be taxed as other costs in the case or, in the court’s discretion, may be taxed against the county. Such experts shall be subject to cross-examination by both parties after the court has caused them to disclose their findings. Whenever the court orders such blood tests to be taken and one (1) of the parties shall refuse to submit to such test, such fact shall be disclosed upon the trial unless good cause is shown to the contrary.

Section 34-705.2 provides:

(a) A written report of the test results by the duly qualified expert performing the test certified by an affidavit duly subscribed and sworn to by him before a notary public, may be introduced in evidence in illegitimacy actions without calling such expert as a witness. If either party shall desire to question the expert in the case where he has performed the blood tests, the party shall have him subpoenaed within a reasonable time prior to trial.
(b) Actions brought in the State of Arkansas to establish paternity may be brought at any time.

Appellant made several objections to the admissibility of the blood tests based on non-compliance with these statutes. First, he argues that Roche was not properly appointed by the county court under § 34-705.1 to perform the blood tests. Based on the record before us, we cannot say that Roche Laboratories was not properly appointed by the county court to perform the tests. Second, he argues that the right to subpoena the expert performing the blood tests for questioning at trial, which is granted by § 34-705.2, was denied him. The appellant issued a subpoena to Dr. Scott Foster in North Carolina eight days before trial. However, Dr. Foster was not served until three days before trial, and he refused to honor the subpoena. Over the appellant’s objection, the trial judge ruled that under the circumstances a telephone deposition of Dr. Ronald Barwick would be a reasonable alternative. The deposition was conducted, reduced to writing, and introduced into evidence.

While it appears that § 34-705.1 does not require a county judge to appoint a resident of Arkansas to perform blood tests in bastardy proceedings, we hold that the procedure ordered by the judge cannot effectively deny a party the right to subpoena that person and confront him in court. Ark. Stat. Ann. § 34-705.2 provides that the expert performing the test may be subpoenaed if a party wishes to question him at trial. In this case, when the nonresident expert subpoenaed by the appellant refused to honor the subpoena, there was no practical way to enforce it. ARCP Rule 45 only relates to the enforcement of subpoenas served inside the state. See ARCP Rule 45, note 5. In criminal cases, material witnesses may be compelled to honor out of state subpoenas under the Uniform Act to Secure the Attendance of Witnesses from Without the State in Criminal Cases, Ark. Stat. Ann. §§ 43-2005 — 43-2009 (Repl. 1977). No such similar power exists in civil cases, and it is generally recognized that a court cannot compel the attendance of a witness who is beyond the court’s jurisdiction. See 91 C.J.S. Witnesses § 17 (1957).

We hold that if a county judge is going to use a nonresident firm or individual to perform blood tests in bastardy proceedings, it is his responsibility to see that the person performing the blood test is available for trial, if the proof requires his presence, as though that person were an Arkansas resident; he must be subject to subpoena just as the statute provides. Surely, the legislature did not intend to deprive a party of the right to directly confront the person performing a blood test in a paternity suit. Thus, while ARCP Rule 30(b) (7) authorizes a court to order a telephone deposition in some circumstances, we find that the trial court in this case abused its discretion in doing so.

Reversed and remanded.

Purtle and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. Any rule adopted more than two hundred years ago that espouses fiction over fact needs to be reexamined. Lord Mansfield’s Rule is a prime example.

Purtle, J., joins this dissent.

       Dr. Foster certified one of the blood tests but did not actually “perform” it. Several questions in this case arose, because the experts certifying the blood tests were not the experts who performed the tests. Appellant’s argument that the statute requires them to be the same person, based on Tolhurst v. Reynolds, 21 Ark. App. 94, 729 S.W.2d 25 (1987), came too late, in his reply brief.


author: John I. Purtle, Justice. David Newbern, Justice,

text:
    Gwendolyn D. DEDMAN v. Andre F. PORCH
    87-227
    739 S.W.2d 685
    Supreme Court of Arkansas
    Opinion delivered November 23, 1987

      Mays & Crutcher, P.A., by: RichardL. Mays, for appellant.

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

The jury returned a defendant’s verdict on the appellant’s complaint for damages arising out of an automobile collision. For reversal the appellant argues: (1) the evidence was insufficient to support the verdict; (2) that the court erred in excluding evidence that the appellee paid a traffic ticket; and (3) that the court erred in failing to instruct the jury that violation of a municipal traffic ordinance was negligence. We hold that the court did not commit error and the judgment is affirmed.

The collision occurred at the intersection of Fourteenth and High Street in the city of Little Rock, Arkansas. Fourteenth Street has two lanes for eastbound traffic and two lanes for westbound traffic. High Street is a two lane street with the opposing lanes going north and south.

The appellant was eastbound in the inside lane of Fourteenth Street following a van which had stopped at the intersection of Fourteenth and High Street to make a left turn. The appellant switched from the inside lane to the outside lane so she could proceed through the intersection. At the same time the appellee was turning left from the inside westbound lane of Fourteenth Street on to High Street. The collision occurred in the intersection when the front of appellant’s vehicle struck the right front corner of the appellee’s vehicle. Appellee was issued a traffic citation for failure to yield the right-of-way which he subsequently paid instead of appearing in municipal court.

The trial court refused to allow the appellant to introduce evidence regarding the appellee’s payment of the ticket. After the jury returned a judgment for the appellee, the trial court rejected appellant’s motion for a new trial and motion for a judgment notwithstanding the verdict.

The first issue on appeal is whether or not the trial court properly rejected appellant’s motion for a JNOV or a new trial. When acting upon a motion for a new trial challenging the jury’s verdict, the trial court is required by ARCP Rule 59(a)(6) to set aside the verdict if it clearly is contrary to the preponderance of the evidence or contrary to the law. The trial court has great discretion in its ruling and will not be reversed unless we find that the trial court manifestly abused his discretion by acting improvidently or thoughtlessly without due consideration. Adams v. Parker, 289 Ark. 1, 708 S.W.2d 617 (1986); Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982).

A judgment notwithstanding the verdict may be issued by the trial court only when there is no substantial evidence to support the verdict and the other party is entitled by law to a judgment in his favor. McCuiston v. City of Siloam Springs, 268 Ark. 148, 594 S.W.2d 233 (1980). In considering the sufficiency of the evidence on appeal, this court will only consider the evidence favorable to the appellee together with all its reasonable inferences. Swink & Company, Inc. v. Carroll McEntee & McGinley, Inc., 266 Ark. 279, 584 S.W.2d 393 (1979).

Appellee testified that when he entered the intersection the light was green. He started making his turn across the eastbound lanes because a van was stopped in the inside eastbound lane getting ready to turn left and he did not see any cars approaching in the outside eastbound lane. Appellee further stated he only saw appellant’s car a split second before she hit his car and that his car was totaled.

Appellant testified that she approached the intersection in the lane next to the center line but changed to the outside lane before entering the intersection in order to pass a vehicle in front of her. She testified she applied her brakes when she saw appellee’s car.

A police officer testified that appellant’s vehicle left seven feet of skid marks leading up to the point of impact. He stated that the front portion of the appellant’s vehicle sustained medium damages across the bumper area and the damage to the appellee’s vehicle was severe enough to render it non-functional. The police officer also testified that the speed limit was thirty miles an hour.

One witness said his impression was that appellant’s vehicle was traveling at the standard rate on that road when it struck appellee’s car and that people usually fly down the street about thirty or forty miles an hour. Another witness testified that after the accident the appellee’s car was still in the intersection while the appellant’s car had gone on through ending up on the corner of a curb. Everyone who saw the accident testified the light was green for both the appellant and appellee.

We find that the trial court acted properly in denying the appellant’s motion for a JNOV and a motion for a new trial. The jury’s finding was not clearly against the preponderance of the evidence and was supported by substantial evidence. The jury could well have found that the appellant negligently entered the intersection at a speed greater than was prudent under the circumstances and that she failed to keep a proper lookout for other traffic or keep her vehicle under proper control. It does not matter that we might have reached a different conclusion had we been deciding the factual situation.

Appellant’s next argument is that appellee’s payment of a traffic ticket was an admission against interest and the trial court erred in not allowing such evidence to be presented to the jury, citing Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293 (1948); Harbor v. Campbell, 235 Ark. 492, 360 S.W.2d 758 (1962); and Midwest Buslines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869 (1968). Harbor and Miller stand for the proposition that a plea of guilty in open court is admissible as a declaration against interest. In Midwest Buslines the defendant was asked if he pled guilty to a traffic charge and he answered, “Yes, I forfeited bond.” Since the question was proper and the trial court was not called upon to make any ruling on the unresponsive answer, this Court found no error was committed by the trial court.

Arkansas Statute Annotated § 75-1011 (Repl. 1979) states, “No record of the forfeiture of a bond or of the conviction of any person for any violation shall be admissible as evidence in any court in any civil action.” We are unable to find a case which holds that paying a traffic ticket entitles the opposing side to introduce evidence of such as an admission against interest. We decline to accept appellant’s invitation to expand our rulings on this matter. We reaffirm our position that the only proper evidence relating to a traffic violation conviction is a party’s plea of guilty in open court.

The third and final argument is that the Arkansas rules of evidence on traffic violations should be changed. The appellant would have the jury instructed that violations of statutes and ordinances create a rebuttable presumption of negligence; but, he did not proffer such an instruction to the trial court. The appellant also did not object to the instruction given by the trial court, AMI 903, which after setting forth two traffic ordinances concluded, “a violation of one or more of these two ordinances, although not necessarily negligence, is evidence of negligence to be considered by you along with all of the other facts and circumstances in this case.”

It is well established that arguments presented for the first time on appeal are not considered by this court. First Commercial Bank v. Meyer, 289 Ark. 345, 711 S.W.2d 791 (1986). Ivey v. Bray, 278 Ark. 475, 647 S.W.2d 430 (1983). The reason for this rule is that a party must make it known to the trial court the action he desires the court to take before the court’s failure to act accordingly can be reviewable on appeal. Life & Cas. Ins. Co. v. Gilkey, 255 Ark. 1060, 505 S.W.2d 200 (1974). Since appellant did not raise the point at the trial level, this court cannot consider it on appeal.

Affirmed.

Holt, C.J., and Hickman and Newbern, JJ., concur.

David Newbern, Justice,

concurring. The majority opinion refers both to “payment of a ticket” and to forfeiture of bond. The implication of the opinion is that these are different from one another. While I am familiar with the forfeiture of bond as a means of avoiding adjudication of an alleged traffic offense, I am unaware that there is any procedure known as “payment of a ticket” which differs from forfeiture of a bond.

In my view it is enough to note that Ark. Stat. Ann. § 75-1011 (Repl. 1979) provides that a forfeiture of a bond is not admissible in any court in a civil action. As the majority opinion cites no authority to distinguish between the “payment of a ticket” and forfeiture of a bond, and as I know of no such authority, it is my view that this case involved only a bond forfeiture. The statute should control the outcome on this point, and we should not make a confusing reference to “payment of a ticket.”

Holt, C.J., and Hickman, J. join in this concurrence.


text:
    ALPHA ZETA CHAPTER OF PI KAPPA ALPHA FRATERNITY, an Unincorporated Association, by James DAMRON, Its President v. Sharon K. SULLIVAN and Ken PRINCE, Individually and as Co-Administrators of the ESTATE of Todd Alan PRINCE, Deceased
    86-311
    740 S.W.2d 127
    Supreme Court of Arkansas
    Opinion delivered November 23, 1987
    [Rehearing denied December 21, 1987.]

      Pope, Shamburger, Buffalo, & Ross, by: Robert T. Ross, for appellants.

      Robert A. Parker, and Ted Boswell, by: Robert A. Parker, for appellees.
   Steele Hays, Justice.

Appellees are the parents of Todd Alan Prince, deceased. They brought this action individually and as co-administrators for the wrongful death of their son. Appellant is the Alpha Zeta Chapter of Pi Kappa Alpha Fraternity, an unincorporated association, by its president, James Damron.

Appellant sponsored a hayride on the evening of October 3, 1984 in appreciation of the “Little Sisters” of the fraternity, a group of women students helpful to individual members with their studies and to the fraternity with its projects. Arrangements were made between Trent Trumbo, a member of the fraternity, and John Reed of John Reed Company for Reed to furnish two vehicles suitable for hayrides. Reed furnished the hay and two drivers as well. Reed’s regular work was renting construction equipment with twenty-four hour mechanic and wrecker service. Reed handled an average of five hayrides a year in conjunction with his regular business. After determining the number of persons, the length of time involved, and the amount of hay needed, Reed arrived at a price for the hayride.

Todd Prince was eighteen years old when he enrolled as a freshman at the University of Arkansas in the fall of 1984. He was not a member of PiKA but was invited to the hayride along with several other rushees to see whether he would be interested in joining if the members were similarly inclined. It is clear that intoxicating beverages were being used rather freely as the students, perhaps 100 in number, awaited the arrival of the trucks, due around 8:00 o’clock. It is not clear whether these beverages were supplied by the fraternity or by individuals. There was testimony that someone at the party purchased a half pint of bourbon for Todd Prince with money Todd supplied.

The trucks arrived, took on their passengers and began a circuitous ten mile trip to the Gateway Farm where the party was to be held. Two kegs of beer were furnished by the fraternity at the farm. The return to the campus began about 11:30 p.m. by way of Mount Comfort Road. Along a straight stretch of that road the driver of one of the trucks, Melton Newman, responded to calls from several of the passengers to stop so that they might relieve themselves. There was no shoulder at that point and Newman stopped on the pavement while passengers dispersed, some in the direction of a clump of trees on the far side of the road.

As the party was thus engaged, Norman Hutton approached in his automobile traveling in the opposite direction. As Hutton passed the trailer, at a speed variously estimated at 40 m.p.h. to 70 m.p.h., his vehicle struck Todd Prince as Prince was walking across the roadway toward the trees. Hutton did not stop, though he returned a short time later, explaining that he thought he had struck a bundle of hay thrown from the trailer as he passed. The investigating officer testified that Hutton had a strong odor of alcohol about him and spoke with slurred speech. Hutton admitted to having just drunk one pitcher of beer and part of a second.

As a result of the impact Todd Prince was critically injured. He was taken first to the Washington Regional Hospital and then by Med-Flight to the Baptist Medical Center in Little Rock where, on October 9, he expired.

In June 1985 Todd Prince’s parents filed this wrongful death action on behalf of themselves and Todd’s two sisters against the national Pi Kappa Alpha Fraternity, the local Pi Kappa Alpha Chapter, The Pi Kappa Alpha Monticello Corporation, John Reed, Melton Newman and Norman Hutton. The complaint sought compensatory damages of $535,000 and punitive damages of $1,500,000. The national fraternity and Pi Kappa Alpha Monticello Corporation were dismissed from the action by a directed verdict and the jury returned a verdict against the remaining defendants, apportioning 95% of the fault to the fraternity, 2% to John Reed, 1% to Melton Newman, 1% to Norman Hutton and 1% to Todd Prince. The verdict awarded compensatory damages of $30,000 to the estate, $ 100,000 to each of Todd’s parents and $25,000 to each sister. Punitive damages of $250,000 were assessed against the fraternity, $2,500 against Norman Hutton and a like amount against Melton Newman.

Pi Kappa Alpha has appealed from the judgment entered on the verdict alleging seven errors by the trial court: (1) The trial court erred in submitting the case to the jury on a “dramshop” instruction which is not a basis for liability; (2) The trial court erred in giving instruction number 9 which allowed the jury to find Melton Newman to be the agent of the fraternity; (3) The trial court erred in holding that John Reed Company was a common carrier, thereby involving the “highest degree of care” duty; (4) There was no substantial evidence to support a finding that Melton Newman was subject to the control of the fraternity; (5) There was no substantial evidence to support an award of punitive damages against Melton Newman or Pi Kappa Alpha; (6) The verdicts were excessive as a matter of law; and (7) The trial court erred in failing to direct a verdict against Jodi Prince (Todd’s sister) on the issue of damages.

I

The trial court erred in submitting the case to the jury on a “Dramshop” instruction, which is not a basis for liability.

Over the objection of the defendants the trial court gave plaintiffs requested instruction No. 14:

Evidence that Alpha Zeta Chapter of Pi Kappa Alpha Fraternity furnished intoxicating liquor to Todd Alan Prince, a minor, has been presented to you. You may not find Alpha Zeta Chapter guilty of negligence for that reason. However you may consider that evidence in determining whether Alpha Zeta Chapter was negligent under the circumstances, as I have defined the term “negligence” in previous instructions.

We think it was error to instruct the jury in this fashion. The instruction is plainly confusing. It tells the jury it may consider the fact that the fraternity furnished liquor to Todd Prince in determining whether the fraternity was negligent, but that the jury may not find the fraternity negligent for that reason. We believe it is expecting too much of the jury to require it to intelligently decipher that contradiction. It is settled law that it is prejudicial error for the court to give instructions which are directly conflicting and calculated to mislead the jury. Chicago Mill & Lumber Co. v. Johnson, 104 Ark. 67, 147 S.W. 86 (1912); McCurry v. Hawkins, 83 Ark. 202, 103 S.W. 600 (1907); Capitol Old Line Ins. Co. v. Gorondy, Adm’x., 1 Ark. App. 14, 612 S.W.2d 128 (1981).

Beyond that, we believe the instruction runs counter to that group of cases wherein we have held that one who furnishes alcohol to a minor or to someone who is inebriated is not liable by so doing. We have embraced that principle even where the violation of a statute accompanied the furnishing of alcohol. In Carr v. Turner, 238 Ark. 889, 385 S.W.2d 656 (1965), a tavern operator furnished alcoholic drinks to its co-defendant, Ruby Turner, in violation of a statute requiring liquor to be sold in packaged containers for consumption off the premises. Ms. Turner was permitted to become visibly intoxicated and to leave the premises in her car. She promptly ran into a parked vehicle and injured the occupant. The unanimous opinion in Carr v. Turner reviewed three earlier cases by this court. In one it was held that a saloonkeeper was not negligent for furnishing liquor to one who became intoxicated and injured another; in the other two cases we held that providing liquor to one person was not the proximate cause of an injury to a third person.

Reviewing the majority rule on this issue in light of two pertinent Arkansas statutes, one prohibiting a barkeeper from supplying someone who is intoxicated, and the other prohibiting any person from selling or giving liquor to a minor, the court in Carr stated:

There is significant distinction between these cases and the one now before us. In all the decisions cited the liability to the injured person fell solely upon one engaged in the sale of alcoholic beverages. Our statute is not so narrow. It applies to any person who sells or gives away intoxicating liquor to a minor or to an inebriate. By its terms it is equally applicable to a liquor dealer and to a host who serves cocktails in his own home. Perhaps the legislature did not mean for the law to be so sweeping in its scope, but we must give effect to the statute as we find it.

The Carr opinion makes it clear by express language that if a Dramshop Act is to be adopted in Arkansas it should be by legislative action rather than by judicial interpretation. No legislation has been forthcoming in the twenty years since Carr v. Turner was decided.

More recently, in Milligan v. County Line Liquor, Inc., 289 Ark. 129, 709 S.W.2d 409 (1986), we affirmed the granting of summary judgment in favor of the appellee County Line Liquor Store, charged with negligence in selling beer to a minor in violation of Ark. Stat. Ann. § 48-901 (Repl. 1977). It was again emphasized that if a Dramshop Act were to become the law in Arkansas it must come by legislative action.

Two recent cases have rejected appeals to deviate from the Carr v. Turner and Milligan v. County Line Liquor Store decisions. In Yancey v. The Beverage House of Little Rock, Inc., 291 Ark. 217, 723 S.W.2d 826 (1987) the appellee twice sold alcohol illegally to a minor, the second time after he was intoxicated. The minor then had an accident and two teenaged passengers were killed. In First American National Bank of North Little Rock v. Associated Hosts, Inc., 292 Ark. 445, 730 S.W.2d 496 (1987) a “happy hour” customer consumed more than a dozen drinks in three hours. Leaving the bar in an intoxicated condition he fell and injured himself. We affirmed the summary disposal of both cases for lack of a remedy under the law.

We conclude that the jury should not have been told it could consider the fact that the fraternity had furnished intoxicating liquor to a minor in determining whether the fraternity was negligent.

We will discuss the remaining points insofar as necessary to guide the court and counsel on retrial.

II and III
The trial court erred in giving instruction number 9 which allowed the jury to find Melton Newman to be the agent of Alpha Zeta.
The trial court erred in holding that John Reed Company was a common carrier thereby invoking the "highest degree of care” duty.

Points II and III are closely related and can be discussed simultaneously. By instructing the jury that as a common carrier Reed owed his passengers “the highest degree of care,” a higher duty than that of ordinary care was imposed. It was error to instruct the jury in that manner.

A constituent shared by common carriers is an indiscriminate readiness to carry all persons (or property) who choose to avail themselves of such carriage. In Arkadelphia Milling Co. v. Smoker Merchandise Co., 100 Ark. 37, 139 S.W. 680 (1911), we defined common carriers:

But in order to constitute one a common carrier, the business as such must be regular and customary in its character, and not casual only. An occasional undertaking to carry goods will not make one a common carrier. But the business of carrying must be conducted as a business, and must be of such a general and public nature that a person carrying it on is bound to convey goods of all persons indifferently who offer to pay for the transportation thereof. Where, therefore, one is engaged in the business of carrying goods for others indiscriminately, and undertakes for compensation to transport personal property from one place to another for all persons, and by virtue of the public nature of his business is under an obligation to carry for all alike, and not merely at his option, then he is a common carrier and is subject to the extraordinary liability imposed upon common carriers.

A good working definition of common carriers appears in 13 Am. Jur. 2d, Carriers, § 2:

A common carrier may be defined, very generally, as one who holds himself out to the public as engaged in the business of transporting persons or property from place to place, for compensation, offering his services to the public generally. The dominant and controlling factor in determining the status of one as a common carrier is his public profession or holding out, by words or by a course of conduct as to the service offered or performed, with the result that he may be held liable for refusal, if there is no valid excuse, to carry for all who apply. The distinctive characteristic of a common carrier is that he undertakes to carry for all people indifferently, and he is regarded, in some respects, as a public servant.

Private carriers are defined, id., § 8:

A private carrier is one who, without making it a vocation, or holding himself out to the public as ready to act for all who desire his services, undertakes by special agreement in a particular instance only, to transport property or persons from one place to another either gratuitously or for hire.

John Reed was regularly engaged in renting construction equipment, not in the carriage of goods or passengers. He testified that he handled about five hayrides a year on the average. He negotiated each hayride on an ad hoc basis and if he chose not to handle a particular hayride he was free to decline. He did not advertise in the newspaper or yellow pages for hayrides and there was no proof that he held himself out as accepting all comers in this area. His testimony that he accepted or rejected this type of business as he chose was not refuted. Those instructions telling the jury that Reed owed the passengers “the highest degree of care” should not have been given.

IV
There was no substantial competent evidence from which a properly instructed jury could find Melton Newman to be under the control of Alpha Zeta Chapter and the court erred by instructing the jury that it should hold Alpha Zeta Chapter liable if it found Melton Newman to use the highest degree of care.

While, as we have said, it was error to instruct that Melton Newman was required to exercise the highest degree of care, it was not error to submit the issue of agency to the jury. Whether the overall circumstances were such that Melton Newman was the agent of the fraternity in the operation of the lowboy trailer was, we think, a fact question. There was testimony that the fraternity rented the drivers as well as the trucks, that the stop on Mount Comfort Road was made in response to calls from the passengers. Newman testified that “they said stop and I was working for them and when they said stop, you know, I would stop.” Coupled with those circumstances is the testimony of John Reed that, “as to whether I instructed Mr. Newman or Mr. Hammon that they were to follow the instructions of the person in charge at Pi Kappa Alpha, they would have to. There would be many things they would have to do.”

We believe whether under the totality of the circumstances Melton Newman was the agent of the appellant while engaged in the hayride was an issue for the jury to resolve. The issue is not whether the agent is actually directed, but whether the right to control exists. Evans v. White, 284 Ark. 376, 682 S.W.2d 733 (1985).

V
There is no substantial competent evidence to sustain an award of punitive damages against Alpha Zeta or Melton Newman.

Because the boundary between gross negligence and conduct that can be characterized as willful and wanton is indistinct, it is necessarily subjective in part. The two-fold intent behind punitive damages is to punish the wrongdoer and to exemplify such conduct for others to note. Negligence alone, however gross, is not enough to sustain punitive damages.

There must be some element of wantonness or such a conscious indifference to the consequences that malice might be inferred. In other words, in order to warrant a submission of the question of punitive damages, there must be an element of willfulness or such reckless conduct on the part of the defendant as is equivalent thereto. Hodges v. Smith, 175 Ark. 101, 298 S.W. 1023 (1927); Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982).

In Wallace v. Dustin, 284 Ark. 318, 681 S.W.2d 375 (1984), we stated:

An award of punitive damages is justified only where the evidence indicates that the Defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice might be inferred. Freeman v. Anderson, 279 Ark. 282, 651 S.W.2d 450 (1983). “Before punitive damages may be allowed it must be shown that in the absence of proof of malice or willfulness there was a wanton and conscious disregard for the rights and safety of others on the part of the tortfeasor.” Dalrymple v. Fields, 276 Ark. 185, 188, 633 S.W.2d 362, 363 (1982).

In National By-Products, Inc. v. Searcy House Moving Company, Inc., 292 Ark. 491, 731 S.W.2d 194 (1987), this court vacated an award of punitive damages quoting from Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964):

Wantonness is essentially an attitude of mind and imparts to an act of misconduct a tortious character, such conduct as manifests a ‘disposition of perversity.’ Such a disposition or mental state is shown by a person, when, notwithstanding his conscious and timely knowledge of an approach to an unusual danger and of common probability of injury to others, he proceeds into the presence of danger, with indifference to consequences and with absence of all care. It is not necessary to prove that the defendant deliberately intended to injure the plaintiff. It is enough if it is shown that, indifferent to consequences, the defendant intentionally acted in such a way that the natural and probable consequence of his act was injury to the plaintiff.

We have reviewed the proof carefully and giving the circumstances surrounding this unfortunate incident their highest probative value we are not convinced that willfulness can be inferred. We concede it was not unforeseeable that an episode of the sort that did occur might follow stopping on the highway while numbers of young people, some plainly inebriated, spread out to find a place to urinate. Even so, it is clear that Melton Newman was guided by a motivation to find a suitable place where the objective could be safely accomplished, and chose a straight, relatively level stretch of road. Hence, it cannot be said that care was altogether wanting. That Newman might have made a better choice, or anticipated a careless motorist, does not translate into wantonness. There was proof that he was seen drinking beer at the party, a relevant fact which we must accept over the denial that he and others offered to that testimony, Arkansas Louisiana Gas Co. v. Hutcherson, 287 Ark. 247, 697 S.W.2d 907 (1985), but there was no suggestion that he was affected by alcohol, nor any testimony from which it might be so inferred.

Nor can we say that the fraternity’s part in the entire affair, given the state of the law, subjects it to punitive damages on these facts. If the law recognizes no cause of action in the first instance for giving alcohol to a minor, even in excess, on what basis can it be said that punitive damages will lie for doing so?

Accordingly, we conclude that on the proof demonstrated in this record, the issue of punitive damages should not have been submitted to the jury.

VI and VII
The awards of damages to the plaintiffs were excessive as a matter of law.
The court erred in failing to direct a verdict against Jodi Prince on the issue of damages.

Appellant urges that the award for mental anguish of the parents and two sisters of Todd Prince are excessive. Peugh v. Oliger, 233 Ark. 281, 345 S.W.2d 610 (1961). Since the case is remanded for a new trial, we need not weigh the proof of how Todd’s death affected the three family members who testified in light of the several factors to be considered in reviewing damages for mental anguish. See Martin v. Rielger, 289 Ark. 292, 711 S.W.2d 766 (1986) and Kelley v. Wiggins, 291 Ark. 280, 724 S.W.2d 443 (1987).

Appellant points out that one of Todd’s sisters, Jodi Prince, did not testify. Were the case being otherwise affirmed, it would be necessary to vacate any award for mental anguish on behalf of Jodi Prince. In Growth Properties I v. Common, 282 Ark. 742, 669 S.W.2d 447 (1984), we set aside a judgment for mental suffering for a family member who did not testify, saying:

The overtones of conjecture which attach to claims of mental suffering unaccompanied by physical injury have led to the view that mental anguish may not be inferred on behalf of someone who fails to testify concerning his own experience. See Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981) and Peugh v. Oliger, Adm’x, 233 Ark. 281, 345 S.W.2d 610 (1961).

Assuming the identical issue was presented on retrial, appellant’s motion for a directed verdict on this point would require affirmative action.

Reversed and remanded.

       During jury deliberation John Reed and Melton Newman settled the claims of the plaintiffs for $50,000.

       R. p. 781.