author: P. A. Hollingsworth, Justice. John I. Purtle, Justice,

text:
    Harry E. McDERMOTT, Jr. and Mary Alice McDERMOTT v. Sam STRAUSS, Jr., Trustee; Ralph COTHAM, Jr., Trustee; LITTLE ROCK OB-GYN PENSION TRUST; LITTLE ROCK OB-GYN PROFIT SHARING TRUST; and Fred SELZ, Trustee
    84-42
    678 S.W.2d 334
    Supreme Court of Arkansas
    Opinion delivered October 22, 1984
    [Rehearing denied December 3, 1984.]

      Moses, McClellan if McDermott, by: Harry E. McDermott, III, for appellants.

      House, Wallace if Jewell, P.A.,by: Phillip E. Dixon; and Smith, Smith if Duke, by: William David Duke, for appellees.

      Purtle, J., would grant rehearing.

   P. A. Hollingsworth, Justice.

Fred Selz and Floyd Fulkerson organized a joint venture to purchase and resell the 251 acre Clark farm for potential profits of $50,000 a year forever. The Clarks would sell for $414,000 with $120,000 down payment. In the spring of 1974, several parties were contacted about participating in this joint venture and the eventual amounts paid and percentages of ownership are as follows:

Ralph Cotham: $48,000 - 20% (Trustee for C. W. Abrams, Nash Abrams, Frank Lyon, Gene Wallace, and O. H. Wilkerson)

Bill Floyd: $24,000 - 10% (Trustee for Little Rock OBGyn Pension Trust)

Sam Strauss: $24,000 - 10% (Trustee for Lee and Bruce Thalheimer)

Fred Selz: $24,000 - 10% (Trustee for his children, his rabbi, and Floyd Fulkerson)

They are appellees in the instant case.

The remaining 50% was acquired by the appellant Harry McDermott. The appellees agreed to advance the down payment of $120,000 and appellant executed a promissory note for $60,000, which was his portion of the down payment, payable in five years at 8% to the appellees. Under the written joint venture agreement, McDermott was also to furnish front end money for engineering and road costs and was to be responsible for overseeing sales, bookkeeping and other activities necessary for development of the property. Pursuant to the agreement, all funds received except sales commissions, would be used to pay the balance of the purchase price for the 251 acres and development expenses. Fifty percent of the profits remaining after these disbursements would be paid to McDermott and the other 50% to the appellees as their interests appear above. Fred Selz, as agent for the joint venture, purchased the farm and made the $120,000 down payment. At the closing Selz and Fulkerson received a commission for the sale in the amount of $41,415. Appellant failed to pay the promissory note when due and appellees brought suit on May 1, 1981. Appellant counterclaimed that the note was usurious or that he was entitled to recover for his services rendered and to recover for the commission obtained by Selz and Fulkerson.

The trial court found that Selz and Fulkerson earned the 10% commission and the payment of the commission was disclosed to the joint venturers or ratified by them; that appellant was not entitled to recover for his services and that the note was not usurious. The case is before us pursuant to Rule 29(1 ){l).

We affirm.

We discuss the points for reversal in the order the appellants raised them.

The appellants ask us to find that the trial court erred in not holding that an undisclosed commission received by a joint venturer must be shared with the other members.

Selz and Fulkerson had an agreement with the seller of the property that they would receive a 10% commission for the sale. Selz and Fulkerson organized the joint venture to purchase then resell the land. At the closing, they received their commission. Appellant alleges that the receipt of this commission was a secret, except to Bill Floyd, and that 80% of the venturers did not know about it.

The law is clear that an undisclosed commission received by one joint venturer must be shared with the other members of the joint venture. Toney v. Haskins, 7 Ark. App. 98, 644 S.W.2d 622 (1983); Jones v. Kinney, 146 Wis. 130, 131 N.W. 339 (1911). The question in this case is whether the commission was undisclosed.

Appellant states that he did not know of the commission until the first hearing in this cause. He asserts that he did not attend the closing, and he did not receive a copy of the closing statement which disclosed the payment of the commission. The offer and acceptance also contained a clause about thp commission. Appellant signed the offer and acceptance as the buyer. Selz also signed as agent. Appellant contends that the clause was not on the offer and acceptance when he signed it and that it was typed in later. Assuming this were true, the record reflects the appellant had been in possession of the offer and acceptance with the clause long before the complaint was filed against him. He did not complain of this commission before then. The issue basically is one of credibility. We must yield to the trial court’s discretion on that issue. The trier of facts is in a much better position to observe the demeanor of the witnesses and we will not set aside the court’s findings of fact unless they are clearly erroneous. Commercial Union Ins. Co. v. Sanders, 272 Ark. 25, 611 S.W.2d 754 (1981). A.R. Civ. P. Rule 52 (a).

The second point raised by the appellants is that the trial court erroneously refused to allow appellants to introduce defendants’ exhibits 18 and 19 into evidence.

Appellants’ Exhibit 18 was a letter and an attached contract of sale to Frank Lyon concerning appellants’ oral offer to sell Lyon joint venture property. Since the contract was unsigned, appellees objected to its introduction and the trial court sustained.

Appellants’ Exhibit 19 was a contract of sale of joint venture property to Ralph Cotham based on appellants’ oral offer. Again the contract was not signed; appellees objected and the trial court sustained.

Appellant testified that he thought both Lyon and Cotham had accepted his offer. Appellant argues that the documents should have been admitted because they were relevant due to the fact that the offer and acceptance to buy the land was in dispute.

Unif. R. Evid. 901, Ark. Stat. Ann. § 28-1001 (Repl. 1979) requires the authentication or identification of a document as a condition precedent to admissibility. One means of authentication or identification is in Rule 901 (b)(1) which allows a document to be authenticated by the testimony of a witness with knowledge that a matter is what it is claimed to be.

This means of authentication was used by the appellants. Mr. McDermott testified as to the identity of these documents. As the person who drafted the documents and letter, he has the requisite knowledge of the documents. The fact that the party proponent supplied the authentication does not go to the admissibility although it may go to the weight of the evidence. United Bilt Homes, Inc. v. Elder, 272 Ark. 496, 615 S.W.2d 567 (1981). The exhibits should have been admitted.

In reviewing the record on this point, it appears that the lower court made the following finding:

The Court finds that the individual joint venturers, including McDermott, agreed that each would have a right to reserve for future purchase a lot or lots. The testimony clearly shows that any payment for such lots would not be due until the entire project was completed and an election made at that time by the joint venturer to purchase or not purchase the particular lot.

However, appellants must demonstrate that a substantial right was affected by the trial court’s excluding these exhibits. Unif. R. Evid. 103 (a), Ark. Stat. Ann. § 28-1001 (Repl. 1979). We cannot find that the trial court’s error in excluding these exhibits was prejudicial to the appellants.

The appellants’ third point is that there was no competent evidence before the lower court of an enforceable oral agreement that allowed some joint venturers to ignore their written contracts of sale and some joint venturers an option at the end of the joint venture to purchase joint venture property.

Appellant sold lots to himself and some of the appellees. These contracts of sale stated that the interest and principal were to bé paid out of the profits. When it became time to distribute the profits after the Clark note was paid, appellant deducted the principal and interest on the lots purchased by the joint venturers from their share of the distribution. Appellant applied his share of the distribution to his note payable to the appellees. The appellees objected to paying for the lots out of the profits. The trial court found:

Payment for lots reserved by the members of the joint venture are not due at this time and will not be due until the election to purchase that lot by the members of the joint venture at such time as the project is completed.

Appellants’ second and third points are intertwined and a review of the record reveals the following evidence was presented. Ralph Cotham understood that the members had the right to reserve the lots for future use. The payment could come out of the first profits or as agreed upon at the time of the election. This oral agreement was not contained in the contract. For that reason, Cotham did not sign the contract. As Frank Lyon’s financial advisor, Cotham advised Lyon not to sign the contract, which he did not.

The joint venturers had at least two meetings where the purchase of lots was discussed before the execution of the contracts. In reviewing the record, there was testimony that there was an oral agreement to the effect that the members could reserve a lot for future purchase which, upon election, would be paid for out of the profits distributed when the joint venture dissolved. This testimony is not contrary to the written contracts in that they contain the clause “or as otherwise agreed,” It is reasonable to assume this is referring to the oral agreement of the joint venturers. The contract also states that the lots should be paid for out of the profits. The oral agreement does not conflict with this because the lots would be paid for out of the profits distributed upon dissolution of the venture.

There is evidence to support the trial judge’s finding that there was an oral agreement to reserve lots. The members were not held to the terms of the contract but rather used these instruments to reserve the lots for future purchase. There is no prejudice by the erroneous exclusion of Defendant’s Exhibits 18 and 19. The error is harmless because it was not prejudicial to the rights of the appellant. Arkansas Public Service Commission v. Yelcot Tel. Co., 266 Ark. 565, 585 S.W.2d 362 (1979).

The fourth point raised by appellants is whether appellant was entitled to charge the joint venturers for his sales labor, bookkeeping labor, and other developmental expenses.

A joint venture is a relationship founded entirely upon contract. C.J.S., Vol. 48A, Joint Ventures, § 14. When a contract exists, that document will be controlling as to what was the parties’ intention. The joint venture agreement states that appellant would be responsible for overseeing sales, bookkeeping, and other developmental expenses, and the funds received from the joint venture would be used to pay for these expenses. According to the agreement, appellant was not required to perform these duties himself, but to supervise. The group had agreed to pay someone else to perform the duties.

The general rule is that no member of a joint venture is entitled to any compensation for services rendered by him for the venture unless the contract so provides. C.J.S., Vol. 48A, Joint Ventures, § 35, p. 460. In this case, the contract did not so provide. The venturers only agreed to appellant overseeing these duties in exchange for the loan. There was no agreement for appellant to perform these duties himself. He volunteered his services to the venture.

Appellant also requests reimbursement for the money he expended on shotgun shells, skeet, liquor and automobile expenses. These items were for the purpose of entertaining prospective buyers. The general rule is a party to a joint venture may, if in accord with the agreement, obtain reimbursement from the other parties for expenses incurred in the ordinary course of the enterprise. C. J.S., § 36. Appellant claims these items were part of the developmental expenses for which the appellees agreed to reimburse him.

The appellees contend that there is a proviso to the above stated rule. The expense must be one of the venture and not a contractual duty. The expenses the appellant wants to recover for are of a personal nature, and not for the benefit of the venture. The developmental expenses considered were the road and engineering costs. Appellant has been reimbursed for these expenses. Also, the appellant contracted to-oversee these duties. Thus, he may have been obligated under the contract.

The contract has a clause which requires the appellees’ consent to any expenditure appellant was to make as a condition precedent. Appellees contend that appellant did not have their consent or even ask for it as to the above claimed expenses.

The trial court’s findings were:

that Mr. McDermott is not entitled to a management fee or to any commission for sales made by him. Mr. McDermott personally drafted the agreement and the note and the language of the agreement itself clearly provides that the venture is liable only for “sales commissions paid to others.” Mr. McDermott was a party to this agreement. The testimony otherwise makes it clear that he was not entitled to any commission or management fee.
[F]rom the evidence the only expense items which the venture is required to reimburse McDermott for, both under the terms of the contract and the testimony to the court, and including development expenses or otherwise, are expenses for engineering and road construetion, for which McDermott has been reimbursed.

We are of the opinion that the trial court did not commit error in this finding.

In their final point, the appellants ask us to find that the note was usurious. The appellees loaned the appellant the money to join the venture. At the time of the loan transaction, appellant agreed to oversee the sales, bookkeeping and developmental expenses. Appellees loaned appellant $60,000 at an interest rate of 8%. Appellant argues that the value of his services, when added to the interest rate, causes the loan to be usurious.

At the outset, it should be noted that appellant cites no authority for this alleged error in his initial brief. Without any authority as support for his argument, the issue may not be reviewable. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

This Court has held that a collateral contract entered into contemporaneously with a contract for lending and borrowing of money, where the collateral agreement is in itself lawful and made in good faith, does not invalidate the contract for the loan as usurious. This is true even if its effect might be to exact more from the borrower than the sum which would accrue to the lender from a legal interest rate. Commercial Credit Plan v. Chandler, 218 Ark. 966, 239 S.W.2d 1009 (1951).

Appellant claims his services are worth approximately $231,000 and $45,000 in expenses. Given the appellees have benefited from appellant’s services and labor, if this benefit is more than the sum of the legal rate of interest, the note would not be usurious. There is no evidence that the contract was not made in good faith and the purpose of the contract is lawful. The requirements of the above case have been satisfied, thus, the note is not usurious.

If a collateral agreement is entered into by a debtor and creditor and the creditor is benefited from it, the loan is not usurious if there is no usuriouis intent. Blalock v. Blalock, 226 Ark. 75, 288 S.W.2d 327 (1956). There is no evidence of usurious intent in the case at bar. Even if there were, appellant drafted the note, thus, he should not be allowed to benefit from his own fraud. Perry v. Shelby, 196 Ark. 541, 118 S.W.2d 849 (1938).

Affirmed.

Hays, J., not participating.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority on two issues. I believe that the 10% commission should have been shared with the other joint venturers and that all of the joint venturers should have been charged for the lots they purchased.

Although this Court has not directly ruled on the question of whether members of a joint venture may collect a commission at the expense of the other members, without full disclosure, the decided weight of authority favors rejection of a fee to a member or members of the joint venture at the expense of other members. Toney v. Haskins, 7 Ark. App. 98, 644 S.W.2d 622 (1983); Humburq v. Lotz, 4 Cal. App. 438, 88 P. 510 (1906). When appellant, who owned 50% of the joint venture, submitted the offer to purchase there was nothing in the offer to suggest payment of a commission to anyone. After the original seller agreed to the offer the real estate agents, part owners of the joint venture, wrote on the bottom of the offer and acceptance that a 10% commission would be paid. The majority opinion agrees that an undisclosed commission should not be allowed. I do not think the commission was disclosed. There was no evidence to indicate that the realtors who were joint venturers were to receive a commission. The commission of $41,415.00 was paid out of the $ 120,000.00 which thej oint venturers paid at the time of the closing of the transaction. It is obvious that the joint venturers would have been required to pay out $41,415.00 less had the realtors not received a commission. The fact that several members later agreed to approve the commission is not enough to bind the 50% ownership which never did ratify the commission.

The second point of my disagreement involves the purchase of lots by individual members of the joint venture. Appellant purchased 3 lots and several other members purchased one or more lots. The record reveals that appellant told the joint venturers that if they wanted to buy lots they could wait and pay for their lots out of profits which were expected to be received by the venturer. All of the joint venture members who purchased lots except two signed a contract which stated, “Interest accruing at the rate of 8%. Principal and interest payable from distribution of profits from joint venture, or as otherwise agreed.” The instrument also contained the statement, “Buyer agreed that he is not relying on any oral representation of seller or his agents.” The same contracts and statements were sent to Ralph Cotham and Frank Lyon. Neither party returned the contract. The contract described the particular lot which the parties were interested in. Thereafter annual statements were sent to all of the parties who had indicated an intent to purchase a lot. The financial statements identified each purchaser by name and showed the date of purchase, the price agreed to and the amount of interest accrue to date. The statement ending on December 31, 1979, clearly revealed the names of the purchasers and the amount of interest accrued until that time. Statements were sent for 1980 and 1981, which also revealed the purchasers’ names and the amount of interest accrued. Not one of the joint venturers called to object to the amount charged against them on the statements.

On August 13, 1982, after the joint venture had paid its indebtedness, appellant caused the accountant to compute the distribution the investors would receive if the money on hand were used to pay off the lots they were charged with. The appellant, who purchased 3 joint venture lots, was charged with the same rate of interest as were the others. In accordance with this accounting procedure appellant sent a check to Ralph Cotham for $23,021.04; Sam Strauss, $11,510.52; $13,758.24 to Bill Floyd; and $16,710.20 to Fred Selz. Appellant did not receive a distribution but applied a credit to his account which would reduce his note to the joint venture to a balance of $7,560.17. It was after these checks were received that the controversy arose.

I cannot understand where there was any evidence to support the trial court’s findings that the debts of the members of the joint venture are not due in accordance with the terms of the purchase contract but will only be due if they elect to purchase these lots after the project is completed. All of the testimony clearly established that the members were to be charged interest from the date they agreed to purchase the lot. In fact to allow them to select a lot after the project is completed will be impossible for the reason that no lots will be available. Finally, appellant’s exhibits 18 and 19, copies of the contracts sent to Cotham and Lyon, should have been admitted as relevant evidence on the question whether they had purchased the lots. This was prejudicial error so far as I am concerned.

I would affirm in part and reverse in part and remand the case to the trial court with directions to disallow the 10% commission and to charge all the purchasers of the lots with 8% interest from date of purchase, just as appellant charged himself.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Jane CZECH, City Clerk, and CITY OF LITTLE ROCK et al. v. Kenny BAER and FRATERNAL ORDER OF POLICE, LODGE 7 et al.
    84-235
    677 S.W.2d 833
    Supreme Court of Arkansas
    Opinion delivered October 24, 1984

      Carolyn B. Witherspoon and Thomas M. Carpenter, Little Rock City Att’ys Office; and Friday, Eldredge if Clark, by: Bill S. Clark, Christopher Heller, and Diane S. Mackey, for appellants.

      Gill, Skokos, Simpson, Buford if Owens, P.A., by: John P. Gill, for appellant-intervenor.

      Nussbaum, Newcomb if Hendrix, by: Robert A. Newcomb; and Kaplan, Brewer if Miller, P.A., by: Phillip Kaplan and JoAnne Maxie, for appellees.
   George Rose Smith, Justice.

In early September, 1984, the appellees, Lodge 7 of the Fraternal Order of Police and some of its members, presented to the City Clerk of Little Rock separate initiative petitions to place two salary-related measures on the ballot for the November 6 general election. After the Clerk determined that the petitions did not have the required number of valid signatures, the appellees filed additional petitions with more signatures. The Clerk then found the number of signatures sufficient, but she refused to certify the measures to the county election commission because the city attorney doubted the validity of the proposed measures.

The Fraternal Order sought review in the chancery court, as provided by Amendment 7 to the Constitution of 1874. The appellants (the City and some of its officers) resisted the chancery complaint on the ground that the proposed measures would be invalid, if approved. The chancellor accepted the Clerk’s finding of sufficient signatures, but he refused to order her to certify the measures, on the ground that a chancery court cannot issue writs of mandamus. The appellees countered by filing a suit for mandamus in the circuit court. There the matter was quickly tried on its merits. The court found that the City had improperly exercised its authority and issued the writ of mandamus. The City’s two appeals have been consolidated for decision in this court. Our jurisdiction includes election cases. Rule 29 (1) (g).

At the outset the appellees argue that we should permit the measures to be placed on the ballot without first determining their validity. Certainly it is true that a party who resists an initiated petition on grounds such as insufficiency of signatures or improper ballot title is not required to question the validity of the proposed measure. On the other hand, that question may be considered and decided when it is properly raised, even before the election. Proctor v. Hammans, 277 Ark. 247, 640 S.W.2d 800 (1982); Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656 (1912).

Here the matter is one of public interest. The validity of the proposed measures was challenged in the trial courts by the City, the real party in interest. The cases were heard in two courts, with the parties having an opportunity to present their proof. The consolidated cases have been fully briefed in this court. Except for certain matters to be explained later in this opinion, we perceive no reason why our decision should be deferred. To the contrary, it is desirable that as far as possible the questions should be set at rest, to avoid useless expenditures of time and money in campaigns for and against a measure which would be invalid even if approved by the electorate.

Both measures involve the salaries of the city police. Negotiations between the City and the Lodge for an increase in salary were at a standstill when the parties agreed to submit the issue to an arbitrator, Joe Woodward, whose decision would concededly not be binding on either party. Woodward had not reached his decision when the first petitions were filed in early September.

One measure, the “fact-finder” ordinance, relates only to the pending dispute. That measure provides that all patrolmen and sergeants will receive a pay increase “in the amount as recommended by the Fact Finder, Mr. J. Woodward, now considering the facts presented before him by the City of Little Rock and the Fraternal Order of Police.” The other measure, the “binding-arbitration” ordinance, is a permanent measure providing a procedure by which any future wage controversy not resolved by agreement is to be referred to an arbitration panel whose decision will be final, binding all parties and not reviewable by any court. It is specifically provided that the city’s board of directors will be required to carry out the arbitration panel’s determination.

First, the binding-arbitration ordinance. The basic defect in this ordinance lies in the rule of law, twice stated in the Constitution, that no municipal corporation shall be authorized to pass any law contrary to the general laws of the state. Ark. Const., Art. 12 § 4, and Amendment 7. It is provided by state law that a city’s legislative body is to fix the number and salaries of its policemen and firemen. Ark. Stat. Ann. § 19-1617 (Repl. 1980). It is fundamental that a city’s legislative power cannot be delegated to a committee or an administrative body. City of Harrison v. Snyder, 217 Ark. 528, 231 S.W. 2d 95 (1950). Nor can the city directors delegate or bargain away their legislative authority. In holding that a city cannot be compelled to bargain collectively with its employees, we have said:

Basically, the reason for the rule is that the fixing of wages, hours, and the like is a legislative responsibility which cannot be delegated or bargained away. [Emphasis supplied.] Several aspects of the matter were discusséd in the Wichita case [194 Kan. 2, 397 P. 2d 357 (1964)], where the court said:
The entire matter of qualifications, tenure, compensation and working conditions for any public employee involves the exercise of governmental powers which are exercised by or through legislative fiat. Under our form of government public office or public employment cannot become a matter of collective bargaining and contract.
The objects of a political subdivision are governmental — not commercial. It is created for public purposes and has none of the peculiar characteristics of enterprises maintained for private gain. It has no authority to enter into negotiations with labor unions concerning wages and make such negotiations the basis for final appropriations. Strikes against a political subdivision to enforce collective bargaining would in effect amount to strikes against the government.

City of Fort Smith v. Council No. 38, AFL-CIO, 245 Ark. 409, 433 S.W.2d 153 (1968).

As we have noted, the Initiative and Referendum Amendment itself provides that “no local legislation shall be enacted contrary to the Constitution or any general law of the State.” Since state law prohibits a city from abdicating or delegating its legislative power to fix its employees’ pay, that result cannot be accomplished by an initiated ordinance. Hence the binding-arbitration ordinance would be invalid even if approved by the voters. (We add that the appellees cite six out-of-state cases upholding binding arbitration agreements, but each decision was based on a statute permitting that procedure. We have no similar statute.)

The issues are not equally clear as to the fact-finder ordinance. The burden of proof was on the City, for Amendment 7 provides: “In the event of legal proceedings to prevent giving legal effect to any petition upon any grounds, the burden of proof shall be upon the person or persons attacking the validity of the petition.” Amendment 7, subsection Amendment of Petition.

As we have seen, the first batch of petitions for the fact-finder ordinance proposed a pay increase in the amount to be recommended by Woodward. After those petitions, with an insufficient number of valid signatures, had been filed, Woodward announced a non-binding recommendation of a 7 1/2% increase. Additional petitions were then filed to supply the deficiency in the number of signatures. The only one of those petitions introduced in evidence, however, contains a revised proposal by which all patrolmen and sergeants “are hereby given a 10% increase in yearly salary.” That was not Woodward’s recommendation.

When an initiated petition consists of several parts, as here, all the parts constitute one petition and must be considered together. Reeves v. Smith, 190 Ark. 213, 78 S.W.2d 72 (1935). In the case at bar, however, there is a conflict in that some parts of the petition refer to the increase recommended by Woodward, which proved to be 7 1/2%, while other parts refer to a 10% increase. The facts have not been sufficiently developed to show what the City Clerk, in response to the writ of mandamus, has certified or may certify to the County Election Commission as the correct ballot title.

With the record in such a state of uncertainty we are not justified in holding absolutely that the fact-finder ordinance should not be on the ballot in any form. Consequently we affirm the circuit court’s issuance of the writ of mandamus with respect to the fact-finder ordinance, but we express no opinion about the effect of that writ.

The circuit court judgment is affirmed in part and reversed in part. An immediate mandate is ordered, directing that the binding-arbitration ordinance not be submitted to the electorate, or, to the extent that such a directive may be too late to be effective, that the votes not be counted or considered. The chancery decree is affirmed.

Hubbell, C.J., and Hollingsworth, J., not participating.


author: Robert H. Dudley, Justice. Webb Hubbell, Chief Justice, Darrell Hickman, Justice,

text:
    ARKANSAS WOMEN’S POLITICAL CAUCUS v. The Honorable Paul RIVIERE, Secretary of State, State of Arkansas; THE STATE BOARD OF ELECTION COMMISSIONERS of the State of Arkansas; and THE COUNTY BOARDS OF ELECTION COMMISSIONERS OF THE STATE OF ARKANSAS The UNBORN CHILD AMENDMENT COMMITTEE, Intervenor
    84-215
    677 S.W.2d 846
    Supreme Court of Arkansas
    Opinion delivered October 24, 1984

      Mays & Crutcher Law Firm, by: Richard L. Mays and Tara Levy, for petitioner.

      Steve Clark, Att’y Gen., by: Curtis Nebben, Dep. Att’y Gen., for respondent.

      Robert S. Shafer and Leon Holmes, for interven- or/respondent.
   Robert H. Dudley, Justice.

In this original action the petitioner, the Arkansas Women’s Political Caucus, asks this court to declare invalid proposed Constitutional Amendment No. 65, “The Unborn Child Amendment.’’ We hold that the popular name of the proposed amendment constitutes a partisan coloring of the ballot and declare the measure ineligible for consideration at the November 6, 1984, election.

In two historic cases, the Supreme Court of the United States decided that the Constitution protects a woman’s right to decide whether to terminate her pregnancy and that a state may not unduly burden the exercise of a woman’s fundamental right to obtain an abortion. Roe v. Wade, 410 U.S. 113 (1973) and Doe v. Bolton, 410 U.S. 179 (1973). These two 1973 cases did not resolve all of the complex issues involved in the abortion controversy. In 1977, in a trilogy of cases, the Court ruled that neither the Constitution nor federal statutes required public funding of elective abortions for poverty stricken women. Beal v. Doe, 432 U.S. 438 (1977); Maher v. Roe, 432 U.S. 464 (1977); and Poelker v. Doe, 432 U.S. 519 (1977). The 1977 trilogy did not address the question of whether state laws could validly prohibit governmental funding of medically necessary abortions.

The original action now before us is a continuation of the abortion controversy at the state level. On one side, the intervenor, The Unborn Child Amendment Committee, desires to amend the Arkansas Constitution to adopt a policy limiting abortion, not only from viability, but from conception. The intervenor would also prohibit the use of public funds for abortion, directly or indirectly, unless it was for the purpose of saving the woman’s life. On the other side, the petitioners, the Arkansas Women’s Political Caucus, desires to maintain the present silence of the Constitution of Arkansas on the subject. That silence allows a statute to provide that a woman and her physician may make the choice under certain circumstances. See Ark. Stat. Ann. § 41-2554. It allows the state, if it chooses, to treat abortion as an accepted medical procedure under Medicaid type programs.

Amendment 7 to the Constitution of Arkansas gives all citizens of this state the right to initiate constitutional amendments. The intervenor, Unborn Child Amendment Committee, seeks to exercise that right. They have drafted a proposed amendment, a proposed popular name and a proposed ballot title. They have submitted the proposed popular name and ballot title to the Attorney General for approval. See Ark. Stat. Ann. § 2-208 (Repl. 1976 and Supp. 1983). The Attorney General has ruled that the popular name and title are not misleading and has approved them for circulation. They have circulated initiative petitions and the Secretary of State has determined that they had obtained sufficient signatures in order to have the initiated proposed amendment on the November 6, 1984, ballot.

The petitioner contends that the ballot title and popular name are partial and misleading to the extent that the electorate will be deceived. Our standard of review for these actions is clear. It is the duty of this court to see that ballot titles and popular names are (1) intelligible, (2) honest, and (3) impartial. Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960).

The requirements for the popular name are not as stringent as those for the ballot title. It is simply a legislative device which is useful for voters to discuss a measure before an election. Pafford v. Hall, 217 Ark. 734, 233 S.W.2d 72 (1950). However, popular ballot names which contain catch phrases or slogans that tend to mislead or give partisan colorings to the merit of a proposal will be rejected. Moore v. Hall, 229 Ark. 411, 316 S.W.2d 207 (1958). The popular ballot name, “The Unborn Child Amendment” is misleading.

An unborn child cannot exist before life begins, but those trained in the disciplines of law, medicine, philosophy and theology are unable to arrive at a consensus of when life begins. A synopsis of thought is found in Roe v. Wade, 410 U.S. at 160-61.

. . . There has always been strong support for the view that life does not begin until live birth. This was the belief of the Stoics. It appears to be the predominant, though not the unanimous, attitude of the Jewish faith. It may be taken to represent also the position of a large segment of the Protestant community, insofar as that can be ascertained; organized groups that have taken a formal position on the abortion issue have generally regarded abortion as a matter for the conscience of the individual and her family. As we have noted, the common law found greater significance in quickening. Physicians and their scientific colleagues have regarded that event with less interest and have tended to focus either upon conception, upon live birth, or upon the interim point at which the fetus becomes “viable,” that is, potentially able to live outside the mother’s womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks. The Aristotelian theory of “mediate animation,” that held sway throughout the Middle Ages and the Renaissance in Europe, continued to be official Roman Catholic Dogma until the 19th century, despite opposition to this “ensoulmén t” theory from those in the Church who would recognize the existence of life from the moment of conception. The latter is now, of course, the official belief of the Catholic Church. As one brief amicus discloses, this is a view strongly held by many non-Catholics as well, and by many physicians. Substantial problems for precise definition of this view are posed, however, by new embryological data that purport to indicate that conception is a "process” over time, rather than an event, and by new medical techniques such as menstrual extraction, the "Morning-after” pill, implantations of embryos, artificial insemination, and even artificial wombs.

From this synopsis it can be seen that there are three schools of thought on the issue of when life begins; at conception, upon live birth, or at the point upon which the fetus becomes viable. The intervenor committee follows that school of thought which believes that life begins at conception. The ballot name “unborn child,” standing alone, would tend to mislead those voters who follow an alternate school of thought and do not think of fetuses of certain gestational ages as unborn children. Those voters could well make a distinction between a one-second old conceptus and a fetus of eight months gestation which this popular name does not acknowledge. More significantly, the enactment of the proposed amendment would do two things, equally far-reaching: it would immediately prohibit the use of public funds for abortion, including a female impregnated by rape or incest, unless the life of the mother were in danger; and two, it would empower the General Assembly tó prohibit abortion under any circumstances to the extent permitted under the Constitution of the United States. Yet, the popular name makes no reference whatsoever to this emotionally charged subject. Instead, the ballot name contains only the inviting catch words "unborn child,” which gives the voters only the impression the proponents of the amendment want them to have. Very few would vote against a child, born or unborn, even though they are for a woman’s right to have an abortion or for the state paying for it. The popular name is a clear-cut example of the partisan coloring of ballots which we have uniformly condemned in our decisions holding that a ballot name must be fair and impartial.

We are aware that overshadowing this particular proposed amendment are the rights of initiative and voting. We are keenly aware that all citizens of this state are being denied those rights by this opinion, even after the sponsors have been through a long and expensive process. However, in a case of this kind, the Constitution plainly places the responsibility on this court to see that the result of an election represents the objective judgment of the voters. The popular ballot title conveys a biased view of the merits of the proposal. It is plainly our duty to declare it misleading.-

Petition granted.

Hubbell, C.J., and Hickman, J., dissent.

Purtle, J., not participating

Webb Hubbell, Chief Justice,

dissenting. The only issue before us is whether Amendment 65’s ballot title and popular name are (1) intelligible, (2) honest, and (3) impartial. Leigh v. Hall, 232 Ark. 558, 339 S.W.2d 104 (1960). The petitioner does not raise the constitutionality of the proposed amendment, so that issue cannot be considered.

The ballot title is an almost verbatim reproduction of the amendment and is not misleading. The popular name “Unborn Child Amendment” need not have the same detailed information as is required for the ballot title. Although many people oppose the use of the term “unborn child,” since Roe v. Wade, 410 U.S. 113 (1973), the term is understood and widely used. Several of our surrounding states use “unborn child” in their abortion statutes and define unborn child as the entity from conception to birth. Mo. Rev. Stat. § 188.015; Okla. Stat. 6351-730. The popular name, although certainly used to provoke emotion, is intelligible.

We should always heistate to remove any initiated act from the ballot. Our function is to unify, not fracture, to set limits and define boundaries within which the political process can operate. We cannot ordain specific solutions to vexatious, divisive, and perhaps insoluble problems of public policy. Unless the people stray beyond the bounds of reasonable constitutional interpretation, we should not hurl our constitutional thunderbolts.

Darrell Hickman, Justice,

dissenting. Because of the nationwide emotionalism surrounding the subject of this case, it is easy to lose sight of the only issue for us at this time: whether the ballot title is misleading, deceptive or dishonest.

Presently in this country there is a national debate on the question of abortion. It has polarized the two major political parties and their candidates for president. Various groups have thrown down the gauntlet on the issue and some of them are represented in this action. It is in this atmosphere that a proposal comes to us to change the Arkansas Constitution through the machinery provided in Amendment 7, the last remaining vestige of power directly retained by the people. Only this court can interfere with that right, and we should only do so in cases of deceptive or misleading statements on the ballot.

Our sole concern at this time is the legal sufficiency of the ballot title. As the majority has found, I agree that the ballot title itself pulls no punches, sugars no phrases and is an honest statement of the proposed amendment. The popular name, “The Unborn Child Amendment,” however, is found by the majority to be “politically colored.” I dissent because in no way is the popular name deceptive since that is precisely what the amendment is about. The popular name cannot, if it is to serve any useful purpose to the voter, be more than a statement of the subject matter of the amendment, and this amendment is about children that have not yet been born. It does not and should not contain every provision of a proposed law.

“Unborn child” is a catch phrase and partisan only if one is persuaded to join this fray between ideological, social and legal opposites. In Pafford v. Hall, 217 Ark. 735, 233 S.W.2d 72 (1950), we reviewed a ballot title called “A Statewide Prohibition Act.” Prohibition is a catch phrase if any word is. The word “prohibition” is not an offensive or persuasive word in itself, and its use was not found to be misleading. Yet if any word would quickly excite the hearts of the temperance advocates and opponents during the days of prohibition, it was that word. We had no difficulty approving the title, and it did not explain what the act was about.

I will not discuss all the uses of the phrase “unborn child” that routinely occur in dictionaries and law books. I merely note that it is an ordinary phrase that has been in use for years. Union Pacific Railroad Co. v. Botsford, 141 U.S. 250 (1891); Webster’s New Collegiate Dictionary (1980); Arkansas Digest, Descriptive Word Index, Vol. 1B, p. 577; West’s Modern Federal Practice Digest, 2nd, Descriptive Word Index, Vol. 92, p. 476.

Most of the petitioner’s argument centers on this phrase and the fact that the amendment attempts to alter or change what was said in Roe v. Wade, 410 U.S. 113 (1973). It is argued that the phrase “unborn child” is meaningless because a fetus, during the first three months of pregnancy, is not a “person;” therefore, unborn child is not accurate either legally or scientifically. Assuming that to be true, how many people know that? Should the amendment be called the conceptus amendment, because it defines an unborn child as being from conception? That would be nonsense. Whatever the United States Supreme Court held in Roe v. Wade, supra, in terms of defining what a person is constitutionally, is irrelevant to the question before us at this time.

In my judgment, the title is actually not what is objectionable to the petitioner; it is the whole amendment that it finds repulsive. I appreciate and respect the petitioner’s legal and moral objections to the proposed amendment. All or part of the amendment may be illegal, but that is not the issue before us. We cannot inject ourselves into the ideological differences of the parties and, by so doing, interfere with the constitutional right of the people to vote on the amendment. Amendment 7 is the only means by which the people can choose the law they want, rather than be governed by a law the governor or legislature may want. Our role is only to see that the proposal meets the minimum requirement of sufficiency. Our duty is clear. We must liberally construe Amendment 7 in order to reserve to the people the right to approve or disapprove proposed legislation. Becker v. Riviere, 270 Ark. 219, 604 S.W.2d 555 (1980); Mason v. Jernigan, 260 Ark. 385, 540 S.W.2d 851 (1976). The ideological and legal battle must wait until we are presented with the question of whether the amendment itself is legal and not contrary to the United States Constitution.

This is an emotional issue. However, the law does not prohibit the people from voting on issues that involve deep feelings. These issues always give rise to diametrically opposed viewpoints.

I cannot fail to mention that the last measure we allowed on the ballot was Amendment 60 which changed the usuary provision of the constitution. Becker v. Riviere, 277 Ark. 252, 641 S.W.2d 2 (1982). The amendment was to allow an increase in the interest rate, yet the ballot title said it would “control” interest rates. I have yet to fully understand how some ballot titles pass inspection and others fail. Ultimately, we are judged on what we do, not what we say.

The majority presumes that the people of Arkansas are too easily misled and uninformed about the voting process. They presume that the voters will read only the popular name and vote for it. I presume otherwise. The voters, that is those who have not already made up their minds, will see the popular name, read on and see what the amendment is about before they vote.

I find no deception and would deny the petition.


author: Webb Hubbell, Chief Justice.

text:
    Jack MENDEL and G. William OGDEN, Trustees for Richard J. OGDEN, and Richard J. OGDEN, Individually v. Linda N. GARNER, Insurance Commissioner for the State of Arkansas and Rehabilitator
    84-162
    678 S.W.2d 759
    Supreme Court of Arkansas
    Opinion delivered October 29, 1984

      Jacob if Sherman, by: William F. Sherman, for appellants, Mendel and Ogden.

      Wright, Lindsey if Jennings, for appellants, Baldwin-United Corp. and B.H. Baldwin Co.

      Wood Law Firm, by: Doug Wood; and Freytag, Laforce, Rubenstein if Teofan, by: Karl Rubenstein, for appellee.
   Webb Hubbell, Chief Justice.

This case is consolidated on appeal with the companion case of Baldwin-United Corp. and D. H. Baldwin Co. v. Linda Garner, Insurance Commissioner of the State of Arkansas, Rehabilitator.

Appellants Jack Mendel and G. William Ogden, trustee, are annuity policyholders of National Investors Life Insurance Company, one of the three subsidiary insurance companies owned by Baldwin-United Corp. and D. H. Baldwin Co. which were placed into rehabilitation on July 13,1983. Prior to June 13, appellants had surrendered their policies for the cash surrender value as provided by the insurance contract, but their requests had not been paid by July 13, 1983. On March 23, 1984, the trial court ordered the adoption of the Plan of Rehabilitation submitted by appellee Linda Garner, Insurance Commissioner. Under the Plan, appellants are not permitted to receive an immediate 100% refund of their money but áre allowed to select from various Plan options and receive their funds in accordance with the provisions of the Plan of Rehabilitation. Appellants contend that they should receive an immediate 100% refund because they attempted to surrender before June 13, more than 30 days before rehabilitation.

Appellants attack the fairness of the Plan by arguing that the cut-off date of July 13,1983 for payment of claims is arbitrary and unfair. Appellants further argue that National Investors Life Insurance Company was under a contract to pay them the full surrender value of their policies and that the implementation of the Plan constitutes a taking of appellant’s property without due process of law. The trial court permitted appellants to intervene in the rehabilitation proceedings and, at a hearing during the week of January 9, 1983, considered evidence in the form of affidavits, exhibits including a log of annuity policyholders, and the testimony of two employees of National Investors Life Insurance Company.

The court found that the Plan “is fair, just and equitable to all interested persons, creditors, and claimants and entities affected by the plan, including the intervenors, and treats fairly and equitably each class of policyholders and certificate holders of the companies.” Those policyholders including appellants with claims not processed to the point of checks having been mailed by July 13,1983 were granted the options available to all policyholders. We affirm the rehabilitation court.

The insurance companies were placed into rehabilitation because of serious financial problems. Appellee determined that surrenders must be cupoff at some point and a plan implemented to treat all policyholders as equally and as fairly as possible. Appellee approached the issue by honoring surrender payments for which checks had actually been mailed as of the close of business on July 13, 1983 and by treating all other policyholders in accordance with the plan.

Appellants admit that the court should establish a date before which all surrendered policies be paid, but they ask that the date be established so that their surrenders will be honored. This issue is one that must rest in the sound discretion of the trial court and should not be disturbed absent a showing of abuse of discretion. Couch on Insurance, 2d § 22:19 (Rev. ed. 1984). We will not overturn a discretionary act of a trial court simply because one or more members of the court might have attempted to address the problem by a different method. See Midwest Lime v. Independence County Chancery Court, 261 Ark. 695, 551 S.W.2d 537, 543 (1977).

Appellants suggest that surrender requests received by June 13,1983, should be fully honored regardless of whether a check had been mailed on July 13, 1983. The Plan, which provides that surrender requests having been processed up to the point of checks having actually been mailed be honored, is easily administered and requires no additional time or expense. Appellants’ requested modification would require the rehabilitator to determine when a request was “received.” This modification could also lead to further modification requests by other policyholders to include all surrender requests mailed prior to June 13, 1983. Other policyholders might then request other modifications equally as meritorious. No one disputes that it would be inappropriate to honor surrender requests until all of the insurance company’s assets were exhausted, and, upon a review of the record, we cannot say that the trial court abused its discretion in establishing the cut-off date it did.

The trial court also denied appellants’ contention that they should be paid because National Investors Insurance Company was under a contractual obligation to do so and found no merit to appellants’ claim that the Plan constituted a taking of property without due process of law. The rehabilitation of insurance companies pursuant to state insolvency statutes does not impair the obligation of contracts. Neblett v. Carpenter, 305 U.S. 297 (1983); Lewelling v. Manufacturing Wood-Workers’ Underwriters, 140 Ark. 124, 215 S.W. 258 (1919). A hearing with the submission of evidence and testimony satisfies the constitutional requirement of due process of law.

Appellants’ final argument is that the trial court erred in denying a motion for class certification. The Commissioner of Insurance acting as rehabilitator is the statutory representative of the policyholders, creditors and shareholders. Ark. Stat. Ann. § 66-4814 (Repl. 1980). Individual policyholders were given ample opportunity to appear and make statements concerning the various plans considered before the adoption of the Plan. Moreover, in rehabilitation proceedings, the rights of all policyholders are already before the court. The certification of a class action depends upon the trial court’s finding that a class action is superior to other means for the fair and efficient adjudication of the controversy. ARCP Rule 23. The findings of the trial court are not clearly erroneous. ARCP Rule 52.

Affirmed.

Hollingsworth, J., dissents.


text:
    Vernon Dale TRAVIS v. STATE of Arkansas
    CR 84-81
    678 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered October 29, 1984

      Mark Binns, for appellant.

      Steve Clark, Att’y Gen., by: Leslie M. Powell, Asst. Att’y Gen., for appellee.
   Webb Hubbell, Chief Justice.

After a hearing held August 16, 1982, the trial court accepted a plea of guilty from appellant, Vernon Dale Travis, to a charge of first degree murder and imposed the recommended sentence of twenty years. Appellant subsequently filed a Rule 37 petition for post-conviction relief. The trial court denied relief after a hearing at which Travis was represented by appointed counsel. On appeal appellant alleges ineffective assistance of counsel. We affirm.

On April 15, 1982, appellant was charged with capital murder and counsel was appointed to represent him. At a hearing on May 4, 1982, appellant announced he did not want that attorney to represent him and would not cooperate with him. The court cautioned appellant about the hazards of self-representation, but appellant insisted on representing himself if he could not have another atttorney. On August 10, 1983, the court appointed another attorney, who was then present with appellant on August 16, 1983, when a guilty plea was entered to a reduced charge of first degree murder pursuant to a plea agreement.

Appellant first contends he was denied effective assistance of counsel. He alleges his first attorney was inexperienced and neither his first nor his second attorney advised him on the law concerning his sentence. At the plea hearing of August 16, 1982, appellant admitted that he had had adequate time to discuss his case with his second experienced attorney and that he was present at the discussions between the prosecutor and defense counsel concerning the sentence associated with the plea bargain. When questioned by the court, appellant replied that this information was correct. Counsel is presumed competent, and the burden of overcoming that presumption is on appellant who must show more than mere errors, omissions, mistakes, improvident strategy, or bad tactics. United States v. Cronic, _ U.S. _, 104 S. Ct. 2039 (1984). Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

It is unnecessary, however, for us to examine the alleged ineffectiveness of counsel absent a showing that appellant’s conviction was unreliable. Crockett v. State, 282 Ark. 582, 669 S.W.2d 896 (1984). See Also Strickland v. Washington, _ U.S. _, 104 S. Ct. 2052 (1984). At the post-conviction hearing, appellant merely asserts he was not guilty, a statement unsupported by any substantial evidence. Moreover, appellant’s counsel testified: “He did admit to me the killing of Frank Harris, I believe his name was, or I would never pled him guilty, and I stated that in the record.” The record reflects that no evidence was introduced at the Rule 37 hearing to contradict appellant’s admission of guilt in open court and his similar admission to his attorney. Since there is no reasonable doubt about appellant’s guilt or the reliability of his convictions, appellant has suffered no prejudice. The failure to prove either deficient performance by counsel or prejudice suffered defeats a claim of ineffective assistance of counsel. Welch v. State, 283 Ark. 281, 675 S.W.2d 641 (1984).

Appellant next alleges error in the trial court’s refusal to recuse himself from the Rule 37 hearing. The same judge who presides over a defendant’s trial may also preside over a post-conviction proceeding; disqualification is discretionary and will not justify reversal absent an abuse of discretion. Woods v. State, 278 Ark. 271, 644 S. W. 2d 937 (1983).

Appellant last argues insufficient evidence to support his conviction. The record reflects that appellant understood the rights he was waiving by his entry of a guilty plea and that he entered the plea of his own free will. In open court appellant admitted that after premeditation and deliberation he caused the death of the victim. Defense counsel also stated that: “He [appellant] has discussed with me the details of the killing. He has admitted that to me, has told me why.” A. R. Crim. P. 24.4

Affirmed.


author:
      George Rose Smith, Justice.
      Webb Hubbell, Chief Justice,

text:
    Marvin BRANDON v. STATE of Arkansas
    CR 84-92
    678 S.W.2d 343
    Supreme Court of Arkansas
    Opinion delivered October 29, 1984
    [Rehearing denied December 3, 1984.]
    C.C. Gibson, III, for appellant.

      Steve Clark, Att’y Gen., by: Velda P. West, Asst. Att’y Gen., for appellee.

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

   George Rose Smith, Justice.

The appellant, Marvin Brandon, was found guilty of rape and burglary and was sentenced as an habitual offender to consecutive sentences of 30 and 10 years. The sufficiency of the evidence is not questioned, the testimony not even having been abstracted. Our limited examination of the record discloses ample substantial proof to support the verdicts.

We shall consider together the appellant’s two related arguments for reversal: (1) The trial court failed to appoint counsel for Brandon within a reasonable time, and (2) after that delay the court abused its discretion in denying counsel’s motion for a continuance on the morning the trial began.

The pertinent facts are not in dispute. The crimes were committed in Wilmot on May 28, 1983. Brandon was arrested at the scene. On May 31, a Dr. Gambel, employed by Delta Counseling and Guidance in Mondcello, apparently called the Wilmot chief of police and said that he had examined Brandon since his release on parole three weeks earlier, that Brandon was not responsible for his actions, and that he should be sent to the State Hospital for a 30-day evaluation. The prosecuting attorney learned about Dr. Gambel’s call and obtained a court order by which Brandon was sent to the State Hospital on June 13. Dr. Rosendale submitted a brief staff report finding that Brandon had no major mental disorder but was malingering, that at the time of the offense he did not lack the capacity to be criminally responsible, and that he could cooperate in his defense.

The case was to be tried on November 10. By reason of a court clerk’s oversight, C.C. Gibson III was not notified of his appointment as defense counsel until October 21, when he received notice of his appointment together with the prosecutor’s discovery material and a copy of Dr. Rosendale’s brief report. On October 28 Attorney Gibson filed a motion for continuance, alleging generally that he needed more time to prepare for trial.

The motion for continuance was among ten motions presented in chambers before the selection of the jury began. Defense counsel appeared to be well prepared. Seven of his motions were sustained. Two others, touching on trivial points, were denied and are not relied upon as a basis for reversal.

The motion for continuance was discussed at length. Defense counsel stated to begin with that he had not “had adequate time to properly and fully evaluate the psychological problems of the defendant at the time of the crime, in a manner that would be meaningful.” As the colloquy proceeded, it developed that on the Monday before the trial began on Thursday, the prosecutor had told defense counsel about Dr. Gambel’s call to the police chief. On Tuesday the prosecutor received the State Hospital’s complete file, which we think shows beyond any doubt that Brandon was competent and attempted to mislead the examining doctors into believing that he was not. On Wednesday, the day before trial, defense counsel received that complete hospital file. He discussed it with the prosecutor on the telephone that day and agreed that subpoenas for Dr. Gambel and Dr. Rosendale might be withdrawn, because the defense did not intend to rely on mental disease or defect as a defense. Attorney Gibson candidly admitted during the colloquy that he had so informed the prosecutor, adding: “The only reason I bring it up is I have not had adequate time to fully examine the validity of that defense.” The court ruled succinctly: “Now, that was a choice you made, Mr. Gibson, and I’m going to deny your motion.” That denial is the principal basis for the appellant’s argument.

The case is so remarkably similar to Russell v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977), as to be controlled by that decision. There, as here, defense counsel was not notified of his appointment until three weeks before the trial. There, as here, a motion for continuance for insufficient time to prepare for trial was denied. There the sentence was 45 years, here it is 40. We first repeated our familiar rules that the matter of continuances is within the trial court’s sound discretion and that the appellant has the burden of showing an abuse of discretion. We then went on to say, in words peculiarly applicable to the case at bar:

Assuming that Russell’s attorney did not receive notice of his appointment until November 10, he has failed to show any abuse of discretion. Even though the notice indicated that the appointment covered six different charges against Russell, as he suggests, the trial court was never advised, either when the motion was presented, or by motion for new trial, what the attorney failed to do that could have been done, or what he did that he would not have done, if he had been afforded more time. Although we could hardly find an abuse of discretion upon some basis not presented to the trial court, appellant does not even suggest here what effect the time limitation had upon his defense. The only prejudice he mentions is the 45-year sentence imposed.

In the present case Attorney Gibson narrowed the scope of his motion for continuance by saying frankly: “The only reason I bring it up is I have not had adequate time to fully examine the validity of [the defense of mental disease or defect].” Hence under our familiar rules that is the only basis for continuance now before us. It may be that on the day of trial defense counsel had not had sufficient time to evaluate the available proof of mental disease or defect. After that, Brandon testified in his own defense and appeared to be normal. During the 30 days allowed for filing a notice of appeal the defense counsel had ample time to study the State Hospital file in detail and to find out what Dr. Gambel would have testified. As in Russell, no possible additional reason for a continuance was presented to the trial court, nor “does counsel even suggest here what effect the time limitation had upon his defense.” In short, no prejudice has been shown. We do not order a new trial except for prejudicial error.

Affirmed.

Hubbell, C.J., and Purtle and Hollingsworth, JJ., dissent.

Webb Hubbell, Chief Justice,

dissenting. Appellant’s counsel had only three weeks’ notice that he was to defend in Ashley County a case involving a potential life sentence. He had only three days’ notice that there was medical evidence that could be the basis for an insanity defense. Although the majority correctly rely on Russell v. State, 262 Ark. 447, 559 S.W.2d 7 (1977), I believe a continuance was in order. If appellant’s counsel had done nothing to prepare for trial, he could have argued greater prejudice, but he did what a good lawyer should do — prepare for trial with what he had. Appellant should not be prejudiced because his lawyer worked hard on short notice to get ready for trial.

Purtle and Hollingsworth, JJ., join in this dissent.


author: Darrell Hickman, Justice.

text:
    Mac PARKS, et al v. Van B. TAYLOR, Chancery Judge, et al
    84-253
    678 S.W.2d 766
    Supreme Court of Arkansas
    Opinion delivered October 29, 1984

      Witt Law Firm, by: Ernie Witt and R. Kevin Barkan, for appellants.

      Steve Clark, Att’y Gen., by: Tim Humphries, Asst. Att’y Gen., for appellees.
   Darrell Hickman, Justice.

The petitioners ask us to review an order of the Chancery Court of Logan County, entered after a hearing, on the sufficiency of signatures to an initiated measure to be referred to the voters of Logan County. We deny the writ.

The proposal was to repeal a county ordinance which levied a one cent sales tax. Susan Hixson, the county clerk, examined the petitions for ten days and certified that there were sufficient signatures. She found 1,291 signatures to be valid, and 667 signatures to be invalid. The Logan County Election Commission had certified that at the last general election 8,577 votes had been cast for the office of circuit clerk. By law, an initiated or referred county measure must contain valid signatures of 15% of that figure, which in this case is 1,287. Since there were four more valid signatures than required, the clerk certified the question to the election commission to be placed on the ballot in the forthcoming election.

Four taxpayers filed suit in Logan County Chancery Court to prevent the certification, alleging among other things that some of the signatures were not made in the presence of the affiant attesting to the petition. All necessary parties were joined, including the county clerk and the board of election commissioners. The petitioners asked to intervene as the real parties in interest since they represented those who proposed the initiated act.

One of the requests made to the chancery court by the intervenors was that the court order that the tally sheets of the 1982 general election be protected and counted. The allegation was that the 1982 certification of the number of votes for the circuit clerk position was incorrect; that, in fact, the figure of 8,577 votes certified was the number of votes cast in the governor’s race, and not the number cast in the circuit clerk’s race which was uncontested. The trial court refused to so order and accepted the certification as the binding figure. After hearing the testimony of the circuit clerk, which is in the partial record before us, and evidently the testimony of others not in the record, the chancery judge found twelve petitions totally null because “some or all of the signatures appearing on such petitions were not executed in the presence of the persons verifying such petitions.” He also ordered the clerk to recount two petitions which she had nullified because of forgeries. See Ark. Stat. Ann. § 17-4011(8) (Repl. 1980). No question is raised regarding this finding of the court.

According to the petitioners’ request to us, the net result of the trial court’s order was that 151 signatures were thrown out so that the petitions will fall short of the number of signatures required by 147. But the trial court remanded the matter to the circuit clerk to recount the signatures pursuant to the order, and, in the event the clerk finds an insufficient number of signatures, the proponents are allowed ten additional days in which to solicit and add signatures in accordance with Ark. Stat. Ann. § 17-4011(9) for the 1986 General Election. That order was entered October 22, 1984.

From that order comes this petition which asks us to do two things. First, we are asked to order the chancery court to get the actual tally sheets and determine the number of votes cast for circuit clerk and then certify that to be the actual number of votes cast in that race, instead of the number that was previously certified. Next, we are asked to overturn the chancellor’s ruling which threw out several petitions because all of the signatures were not actually witnessed by the affiant. We cannot say the chancellor was clearly wrong in either instance and the requested relief is denied. (The request is for a writ of certiorari, mandamus, or prohibition, and is treated as a petition for a writ of certiorari.)

The county board of election commissioners certified the votes almost two years ago and that certification is entitled to at least a presumption of correctness. Pogue v. Grubbs, 230 Ark. 805, 327 S.W.2d 4 (1959). In Rogers v. Mason, 246 Ark., 1, 436 S.W.2d 827 (1969), we held that official returns are prima facie correct. There is no evidence that there has been an election within the two years since. The election commissioners are only required to hold the ballots and certifications in custody for safekeeping for six months. In fact they are supposed to destroy them after six months. Ark. Stat. Ann. § 3-802 (Repl. 1976). The county clerk admits, however, that she does have the ballots. The evidence offered the trial court regarding the actual votes in the circuit clerk’s race was exactly the same number certified to have been cast in the race for circuit clerk, an uncontested race. The county clerk testified that the votes cast for circuit clerk were “probably not” the same number as had been cast in the governor’s race.

Considering the circumstances of the case and the evidence before us, we cannot say the trial court was clearly wrong in denying the request. First, there is the presumptive validity of the certification. Second, there is the fact that no .official or individual has kept the ballots and certifications secure from tampering who is charged by law with that duty. Third, this request was made at a very late date. The petitioners knew or should have known the number of certified votes needed to qualify an initiated act. Undoubtedly they did know because 600 more than the required number were submitted to the clerk. It was not until this lawsuit was filed that this extraordinary relief was requested. So we cannot say as a matter of law that the chancellor was wrong in refusing to allow the petitioners to invalidate the certification by the election commissioners.

The other issue before us is the trial court’s finding which threw out entirely several petitions because the affiant did not see, the attestants sign. The petitioners claim that the chancellor was wrong because in some instances the affiants merely said that they did not actually see all the persons sign in their presence. Conceding that fact, we cannot find fault with the chancellor’s action. Amendment 7 to the Arkansas Constitution provides: “Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto, the affidavit of the persons circulating th,e same, that all signatures hereon were made in the presence of the affiant. . . .” (Emphasis added).

In Sturdy v. Hall, 201 Ark. 38, 143 S.W.2d 547 (1940), we considered this very question and said:

The circulator of the petitions is the sole election officer, in whose presence the citizen exercises his right to sign the petition. The circulator must take affidavit that each signature is genuine, and if this affidavit is shown to be false, the petition loses its prima facie verity.
# * *
If, therefore, the circulator of a petition makes affidavit that the signatures are genuine which were not signed by the petitioner himself, he has made a false affidavit, and when it is shown that the affidavit attached to a particular petition is false, that petition loses the presumption of verity.

Since the trial court found the affidavits false he was not wrong as a matter of law in excluding entirely the petitions of those affiants. At that point the burden was placed on the proponenets of the petitions to accept as sufficient all the names on a petition where the circulator’s affidavit was shown to be false. No argument is made that proof exists which would require us to set aside the trial court’s decision. Therefore, a writ of certiorari would not be in order.

Writ denied.

Purtle, J., dissents.

      She examined a total of 116 separate petitions, and excluded some because of forgery. She testified that she thought she excluded 20 such petitions, but the record shows 22 were actually nullified. Another three were also nullified because the verifications were not notarized. For every signature not counted, a reason was given; usually it was because there was no record of voting registration.

      The legality of allowing the petitions to be used in a later election is not before us.


text:
    Brian TODD v. STATE of Arkansas
    CR 84-128
    678 S.W.2d 345
    Supreme Court of Arkansas
    Opinion delivered October 29, 1984

      Donald R. Huffman, Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Joyce Rayburn Greene, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Brian Todd was convicted of several felonies in connection with the burglary of Triple T Foods, a food processing plant in Rogers, Arkansas. Todd worked there until he and three of his fellow workers were fired for smoking marijuana in November of 1981. Todd and Jason Jackson, who was fired with him, broke into the plant on November 30, 1981. Using a torch, they opened and robbed the candy, soft drink and money changing machines. The police learned of Todd’s involvement when they interrogated Jackson after Todd had implicated Jackson in a separate burglary. Jackson confessed to the Triple T Foods burglary in return for a grant of immunity in that case. Charges were filed against Todd on July 1, 1983.

Todd makes two arguments on appeal: (1) the prosecuting attorney used his subpoena power after charges were filed to interrogate witnesses for trial — a use of the power not authorized by law; and (2) the trial court was wrong in allowing a witness to rebut an express or implied charge of recent fabrication by testifying about another witness’ prior consistent statement. Both arguments must fail.

Essentially, the appellant’s first argument is that the statutory power of a prosecuting attorney to subpoena witnesses is the same as the subpoena power of a grand jury: that is, it is limited to investigation and cannot be used once the investigation ceases and charges are filed. The power of subpoena was granted to prosecuting attorneys after the Arkansas Constitution was amended to allow prosecutors to file charges by information. See Ark. Const. Amend. XXI and Act 160 of 1937. Before that time, charges had to be filed by a grand jury. After the passage of the amendment, grand juries met less frequently and the prosecutor supplanted the grand jury to a certain degree. Taylor v. State, 220 Ark. 953, 251 S.W.2d 588 (1952). The subpoena power was granted to aid prosecutors in investigating charges and preparing for trial. There is no doubt that the subpoena power may be used after charges are filed. See Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). This does not mean that the subpoena power cannot be abused. For example, in Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ark. App. 1980), it could not be used to allow state policemen to coerce witnesses to appear for interrogation. Neither can witnesses be compelled by the use of the prosecutor’s subpoena to appear in a county other than where the alleged offense occured. State v. Stell, 254 Ark. 656, 495 S.W. 2d 846 (1973). Inadmissible testimony cannot be obtained by subpoena power. Taylor v. State, supra. A witness subpoenaed has the right to have an attorney present during questioning. Gill v. State, 242 Ark. 797, 416 S.W.2d 269 (1967). A prosecuting attorney cannot use the power to stage a pretrial show of evidence with all the witnesses present. Cook v. State, supra.

All of these cases, however, recognize the right to use the prosecutor’s subpoena to prepare criminal cases. Indeed, the emergency clause of Act 160 of 1937 specifically provides that. See also J. Hall, The Prosecutor’s Subpoena Power, 33 Ark. L. Rev. 122 (1979). We do not hesitate to hold that, in the absence of an abuse of the power, a prosecutor’s subpoena may be used to prepare for trial after charges have been filed. We find no abuse in this case.

The appellant raises a due process argument concerning the subpoena power, but it was not raised below, and we do not address it. See Taylor v. Patterson, 283 Ark. 11, 670 S.W.2d 444 (1984).

The other issue concerns Unif. R. Evid. 801 (d) (1) (ii), which states:

(d) Statements Which are Not Hearsay. A statement is not hearsay if: (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is . . . (ii) consistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive, ....

The trial court allowed the state to call a police officer to testify that one of the state’s key witnesses, Jackie Alberding, had made prior statements consistent with her testimony at trial. He also testified to the content of her first statement. Ordinarily, evidence of prior consistent statements is not admissible to bolster credibility because it is hearsay. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980). But Rule 801 (d) (1) (ii) provides an exception to that rule where there has been a charge of recent fabrication or improper influence. There was such a charge in this case, and we hold that the trial court ruled correctly.

Jackie Alberding was located by the state just before trial and was subpoenaed for interrogation. She made at least three statements. She was first questioned alone. Then Jason Jackson was brought in, and they were allowed to discuss the case. She made another statement with Todd’s attorney present. All of the statements were consistent and the police officer, who was present for all the statements, was allowed to testify to that fact.

Alberding’s testimony was crucial because she testified that Todd and Jackson planned the burglary at her apartment and asked to borrow some pantyhose to use in the burglary. When she later learned of the burglary, she said that she knew Todd and Jackson had done it. She said Todd came by with money he had taken, some of which was burned by the torch, and that he left a coin box from one of the machines at her house.

When Alberding was cross-examined at trial, a number of questions by the defense attorney implied that her version was the result of being questioned with Jackson. He, in fact, asked her whether she had told him they were both there to get their “story straight.” Without reciting all the cross-examination, and it was extensive, it is fair to say that the trial court was correct in concluding that the defense was implying that Alberding had fabricated her statement after speaking with. Jackson. This is exactly the situation contemplated by Rule 801(d)(l)(ii) since the prior consistent statement that the officer testified to was taken before Alberding was questioned with Jackson. See Kitchen v. State, supra. Therefore, we find no error.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Ann BROACH v. CITY OF HAMPTON, ARKANSAS
    84-145
    677 S.W.2d 851
    Supreme Court of Arkansas
    Opinion delivered October 29, 1984

      Shackleford, Shackleford & Phillips, P.A., for appellant.

      Wynne, Wynne ir Wynne, by: Robin F. Wynne, for appellee.
   Robert H. Dudley, Justice.

In 1963, appellee, the City of Hampton, acquired 57 acres of land from Charles and Ann Broach for the price of $105.00 per acre. The acreage was to be used for an oxidation pond and pumping station for the city sewer system. On February 8, 1966, after the construction was complete, Charles Broach asked the Hampton City Council if he and Ann Broach could buy back that part of the property which had not been used for the sewer system. The council voted to sell back the unused 43.15 acres at the price of $50.00 per acre, but reversed the right to repurchase the property when the sewer system required additional oxidation ponds. The pertinent provision in the deed reads as follows:

The grantees herein, Charles Broach and Ann Broach, hereby agree to sell back to the City of Hampton, grantors herein, all or any part of the above-described 43.15 acre tract that the City of Hampton might need in the future for oxidation ponds for the city sewer system, at a price of $50.00 per acre. Grantor reserves such right of purchase.

In 1973, Charles Broach died, leaving appellant as the survivor. Meanwhile the City of Hampton grew and the additional population required expansion of the sewer system. In July, 1983, the City Council voted to repurchase the property for the price stated in the deed, $50.00 per acre, and expand the system. Appellant refused to sell. Appellee city filed suits for specific performance. Appellant answered, raising various defenses, among them being that the option to repurchase was void because it violated the Rule against Perpetuities and also because it placed an unreasonable restraint upon alienation of the land. The court granted appellee’s request for specific performance. We affirm. Jurisdiction is in this court pursuant to Rule 29 (l)(p) as the case presents a question about the construction of deeds.

We must first decide whether the repurchase option in the deed is void because it violates the rule against perpetuities or the rule against unreasonable restraints on the alienation of property. Although these rules are distinct entities, they share a common purpose which is to insure that property is reasonably available for development by forbidding restraints that keep property from being used for a lengthy period of time. L. Simes 8c A. Smith, The Law of Future Interests § 1135 (2d ed. 1956). Iglehart v. Phillips, 383 So.2d 610 (Fla. 1980). Article 2, Section 19 of the Arkansas Constitution forbids perpetuities. Arkansas does not have a statute stating the rule against perpetuities, but follows the common law rule which prohibits the creation of future interests or estates which by possibility may not become vested within the life or lives in being at the time ... of the effective date of the instrument and 21 years thereafter. Roemhild v. Jones, 239 F.2d 492 (8th Cir. 1957); Hendricksen v. Cubage, 225 Ark. 1049, 288 S.W.2d 608 (1956).

The language in the repurchase option clause of the deed mentions only Charles and Ann Broach and the City of Hampton. No Arkansas case has previously decided the issue of whether the rule against perpetuities applies to an option to repurchase. However, in Campbell v. Campbell, 313 Ky. 249, 230 S.W.2d 918 (1950), that court stated:

In practically all the cases holding that the reservation of an option to repurchase made in favor of the grantor violates the rule against perpetuities and is invalid, the language of the reservation clearly extended the option beyond the life of the optionee. Usually the reservation of the option was to the optionee, his heirs and assigns.

313 Ky. at 252, 230 S.W.2d at 920. In the case before us there is no language in the deed which states that the option runs to the heirs or assigns of the Broaches, nor is there any other language that indicates that the parties intended that the terms would be binding beyond the lives of the Broaches. There is a reasonable basis, therefore, for the trial court’s ruling that the option did not extend beyond the lives of the parties to the option, and consequently, we cannot say as a matter of law that the rule against perpetuities has been violated.

The same result follows where there are two possible constructions to the option agreement because:

The rule against perpetuities is not a rule of construction but a rule of property, yet if there are two possible constructions of an instrument, one which would render it valid and one which would render it invalid, preference will be accorded to the construetion which will uphold it. Roemhild v. Jones, 239 F.2d 492, 496 (8th Cir., 1957).

Appellant’s contention that the repurchase option violates the rule against unreasonable restraints upon alienation is also without merit. A direct restraint on alienation is “a provision which, by its terms, prohibits or penalizes the exercise of the power of alienation.” L. Simes, Law of Future Interests 237 (1966). There are three types of direct restraints. 4 Restatement, Property § 404 (1944). First, a disabling restraint is created when property is devised or conveyed with the limitation that it not be alienated. Simes, at 237. See Garner v. Becton, 187 Tenn. 34, 212 S.W.2d 890 (1948). All disabling restraints are void except those restraints on alienation incidental to spendthrift trusts. Simes, at 238. Second, a forfeiture restraint is created when, by an instrument of transfer, the estate transferred will be subject to forfeiture or termination on alienation. Id. The general rule is that all forfeiture restraint are void. Simes, at 242. See Crecelius v. Smith, 255 Iowa 1249, 125 N.W.2d 786 (1964). Third, a promissory restraint is created when the promisor agrees, in a convenant in an instrument of conveyance, or by contract, not to alienate the property. Simes, at 238. Generally, although there are some exceptions, the law treats such promisory restraints just as it treats forfeiture restraints and declares them void. Simes, at 248. See Jackson v. Jackson, 215 Ga. 849, 113 S.E.2d 766 (1960).

The language in this deed does not create an unreasonable restraint on alienation for the simple reason that it does not constitute a restraint on alienation as above defined. There is no language by which the Broaches promise not to sell nor is there any language prohibiting the alienation of the land or causing forfeiture upon attempted alienation. The Broaches were free at all times to sell the interest they owned in the land.

The result announced by the trial court is correct. An appellate court will sustain the judgment if it is right, although the trial court announced the wrong reason for its ruling. Armstrong v. Harrell, 279 Ark. 24, 648 S.W.2d 450 (1983).

Appellant additionally argues that the trial court erred in holding that appellee’s reservation of the right to repurchase was enforceable. Appellant contends that the statute of frauds is applicable to the reservation of the right to repurchase and that appellee must prove both the terms of the contract and the facts constituting performance in order to take the contract out of the statute of frauds. We find no merit in this argument. It is apparent from the language of the deed what the terms of the contract are and we note, as did the trial court, that the grantees accepted the deed, placed it on record, paid the purchase price, and took possession of the land.

The last point we address is whether appellee’s reservation of the option to repurchase was still in effect when appellee attempted to exercise it since there was no express time limit stated in the deed. When there is no time limit expressed, an option must be exercised within a reasonable time of its execution and delivery. Gerald Elben, Inc. v. Seegren, 62 Ill. App. 3d 20, 378 N.W.2d 626 (1978). This court has upheld the trial court’s reasoning in determining that the option did not violate the rule against perpetuities because it could only be exercised during the lives of the grantees. We hold that limiting the exercise of the option to the lives of the grantees is a reasonable period of time.

Affirmed.


author: Steele hays, Justice.

text:
    Joe PRICE, In His Capacity as Administrator of the Estate of Ray F. PRICE, Deceased, Jacky Y. HARRIS and FROZEN FOOD EXPRESS, INC. v. Russell U. WATKINS
    84-151
    678 S.W.2d 762
    Supreme Court of Arkansas
    Opinion delivered October 29, 1984

      Butler, Hicky, Hicky é Routon, Ltd., by: Phil Hicky, II, for appellant Price.

      Fletcher Long, Jr., for appellant, Harris and Frozen Food Express, Inc.

      B. Michael Easley, and Dan Dane, for appellee.
   Steele hays, Justice.

Russell Watkins, appellee, recovered a judgment in the trial court for injuries sustained when his pickup truck was struck by a tractor-trailer driven by appellant, Jacky Harris, and owned by appellant, Frozen Food Express, Inc.

Watkins had been asked by a neighbor, Ray Price, to follow him from Forrest City to Blytheville to help move some furniture. East of Crowley’s Ridge they encountered fog. Price started weaving and stopped diagonally in the highway with his left front wheel over the mid-line. Watkins testified he pulled off on the shoulder and got out of his car to see about Price. He went to Price’s side of the car and found him too sick to move. Watkins heard a truck skidding and ran to the shoulder where he was struck, evidently by his own truck, sustaining the injuries complained of. Price avoided the collision by driving forward just as the tractor-trailer skidded into Watkins’ truck.

The jury awarded Watkins $125,000 and apportioned fault at 25% to Price and 75% to Harris and Frozen Foods. Harris, Frozen Foods and the administrator of Price’s estate have appealed. Five points for reversal are made. We affirm the judgment.

I

Appellants contend the evidence does not support the jury’s failure to assign any negligence to Watkins. Noting that any evidence does not equate with substantial evidence [citing Arkansas State Highway Commission v. Covert, 232 Ark. 463, 338 S.W.2d 196 (1960)], they submit that if Watkins was parked on the pavement of the highway in a fog he was guilty of some negligence when an adequate shoulder was available. There was evidence to the effect that Watkins’ truck was parked in the right hand lane of the highway: Harris so testified, an investigating officer said Watkins told him that; an expert witness called by Watkins acknowledged that possibility; and debris and skid marks gave some support to the proposition. The evidence on that score would doubtless have supported such a finding, even so, it was not conclusive. Watkins testified that his vehicle was on the shoulder and some physical evidence supported him; we cannot say his version of the collision was an impossibility. Granted, an abridgment of the proof renders that premise more plausible, but the jury hears the witnesses in person and in detail, and observes proof not readily available to us. There were, for example, numerous photographs of the accident scene and the vehicles which are not reproduced in the briefs. We make no attempt to summarize the proof pro and con, as we need only consider the evidence favorable to Watkins. In that light we cannot say substantial evidence was lacking. Hayes v. Farm Bureau Mutual Insurance Co., 11 Ark. App. 289, 669 S.W.2d 511 (1984); St. Paul Fire and Marine Insurance Co. v. Protho, 266 Ark. 1020, 590 S.W.2d 35 (1979).

II

Appellants contend the size of the verdict is not supported by substantial evidence and is so excessive as to shock the conscience. They recognize the jury’s verdict will ordinarily not be disturbed on appeal unless wholly without support in the evidence, or may be said to be the result of passion or prej udice, or to shock the conscience or a sense of justice. Bradley v. Hendrix, 251 Ark. 733, 474 S.W.2d 677 (1972); Arkansas Amusement Corporation v. Ward, 204 Ark. 130, 1616 S. W. 2d 178 (1942).

Watkins’ injuries included four broken ribs, a collapsed lung and a concussion. He was hospitalized for twenty-eight days. There is no indication of residual impairment and no loss of earnings. His medical expenses totaled $6,103.84, in addition to property damage of $3,035.00. Watkins and other witnesses testified to a great deal of pain during and following his hospitalization and he continued to have pain four years later at the time of the trial. He relies on tranquilizers and has an inability to sleep. Watkins’ wife attested to his suffering since the accident.

Finding a point at which damages cease being merely high and become so excessive as to require intervention is a particularily difficult task with little guidance to be found. In the end, the jury’s assessment of the measure to be given the elements of a verdict is perhaps as good a guide as any. Here pain and suffering seem to have been the principal constituent, but we cannot say the proof fails to support the amount awarded, given our tradition of permitting the jury to determine the appropriate amount. This verdict is higher than might ordinarily be expected, but not much else can be said about it. Finding no hint of passion, prejudice or other improper influence we believe the verdict must stand. Arkansas State Highway Commission v. Muswick Cigar and Beverage Company, 231 Ark. 265, 329 S.W. 2d 173 (1959).

Ill

Appellants claim it was an abuse of discretion to permit witness Larry Williams to testify as a reconstruction expert. Appellants do not especially challenge Williams’ credentials as an expert, rather they argue that his conclusions are faulty. Williams’ testimony for the most part involved an opinion as to the speed of the Harris truck and which of its tires left skid marks.

Prior to the enactment of the Uniform Rules of Evidence our cases looked with disfavor on reconstruction of accidents by expert testimony. But we have liberalized that position somewhat since the URE. We need look no further than two recent cases: B. & J. Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d (1984) and Smith and Vaughn v. Davis, 281 Ark. 122, 663 S.W.2d 165 (1983). In Byers, we defined the current status of that rule:

Counsel’s objection, that Arkansas case law does not permit any reconstruction of an accident, was not accurate. In Woodward v. Blythe, 249 Ark. 793, 462 S.W.2d 205 (1971), we adhered to our earlier position that attempts to reconstruct traffic accidents by means of expert testimony “are viewed with disfavor,” but we nevertheless held that expert testimony was necessary in that case for an understanding by the jurors of the physical dynamics and causal relationships involved in the accident. Again, in Wright v. Flagg, 256 Ark. 495, 508 S. W. 2d 742 (1974), we sustained the trial judge’s exclusion of a witness’s faulty attempt to reconstruct the accident, but we recognized the existence of exceptions to the broad exclusion of such testimony.

In this case the dynamics of the collision were complex. The tractor-trailer had jackknifed and there was a dispute as to which of its tires produced the skid marks, a material factor. One of the three drivers, Price, had died and Watkins was able to offer very little explanation as to how the collision occurred. To say that expert testimony was unnecessary to enable the jury to understand the forces and causal relationships involved, would be going further than we are willing to go. The trial court determined that the testimony should have been received and no abuse of discretion occurred. Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980).

IV

Appellants contend there was no proof to warrant giving AMI 616 on rescue:

A person acting under stress in response to humanitarian impulses, in attempting to rescue another who reasonably appears to be in danger of substantial injury or loss of life, is not chargeable with negligence because his conduct may now appear to have been unwise, unless his conduct was rash and reckless. He is required to use only that degree of care a reasonably careful person would use under the same or similar circumstances.
Whether [Watkins] was acting under such stress and whether he used the degree of care required of him is for you to decide.

Appellants argue that Ray Price did not need to be rescued and since he died some three months after the collision, there is no explanation for why he stopped on the highway. We do not find such an absence of proof that we can say reversible error occurred in giving the instruction. Whether Price needed assistance is not known but the surrounding circumstances were such that Watkins may have thought so, and the reasonableness of that assumption was properly submitted to the jury. Price was almost eighty years old, he had high blood pressure and was under medical care. One purpose for the trip was to see a Blytheville physician. Most significantly of all, after weaving from side to side he completely stqpped his car, partially blocking both lanes of the interstate in a dense fog, a precarious position by any estimation.

V

Instruction No. 17 told the jury [in accordance with Ark. Stat. Ann. § 75-647 (Repl. 1979)] that no one should stop or park on the paved portion of the highway, but should leave an unobstructed width of highway for the passage of other vehicles, the parked vehicle to be visible for two hundred feet in either direction..

Appellant objects because the trial judge did not include the second part of § 75-647 which states that a driver who violates the statute shall be liable for any damages which proximately result from such violation. But Instruction No. 17 conformed exactly to AMI 903 explaining the four statutes covered by the proof and informed the jury that a violation of one or more of those statutes was evidence of negligence. The jury was properly instructed.

To have included the omitted part of § 75-647 would have emphasized that statute over the others, and would have told the jury in effect it should return a verdict for Harris and Frozen Foods irrespective of other elements of the proof. The omitted part was in conflict with AMI 903, as well as with AMI 616, the rescue instruction, and undoubtedly would have confused the jury. It was not error to give the instruction in accordance with AMI 903 rather than as requested by appellants. Oliver v. Fletcher, 239 Ark. 724, 393 S.W.2d 775 (1965); Capitol Old Line Insurance Company v. Goundy, 1 Ark. App. 14 (1981).

The judgment is affirmed.

      Ray Price died some three months after the collision.