author: James H. Pilkinton, Judge.

text:
    UNITED STATES BORAX AND CHEMICAL COMPANY v. BLACKHAWK WAREHOUSING AND LEASING COMPANY
    CA 79-84
    586 S.W. 2d 248
    Opinion delivered August 29, 1979
    and released for publication September 19, 1979

      Rieves, Rieves & Shelton, by: Connie Lewis Way ton, for appellant.

      David Solomon, for appellee.
   James H. Pilkinton, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals. Rule 29(3) Ark. Supreme Court.

On Sunday, January 16, 1977, the defendant, Blackhawk Warehousing & Leasing Company, was storing goods and merchandise consisting of agricultural chemicals owned by the plaintiff, U.S. Borax, in accordance with the warehousing contract between the two parties. At sometime between 4:30 p.m. January 16, 1977 and 7:00 a.m. January 17, 1977, goods and merchandise belonging to the plaintiff consisting of eight pallet loads of Cobex (288 five gallon cans), were stolen from the defendant’s premises. The warehouse is a large metal building.

The burglars entered the building by ripping open one of the side panels. Then chemicals which had been stored next to the wall were pulled outside to allow entry into the building. After entry a padlock and chain were cut to allow a door to be opened. A forklift truck was “hot wired” since it was locked. Then it was used by burglars to move a sailboat blocking the path to appellant’s stored chemicals. Other chemicals in the way were shoved aside, and the cans of appellant’s stored chemicals were taken from the premises. The loss sustained by the plaintiff amounted to $23,658.28 and suit was brought for that amount.

At the trial the defendant was granted a directed verdict at the close of the plaintiff’s case. This appeal followed claiming as one point that the court erred in directing a verdict.

The Uniform Commercial Code sets out the duty of care required of a warehouseman.

Duty of care — Contractual limitations of warehouseman’s liability. —
(1) A warehouseman is liable for damages for loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances but unless otherwise agreed he is not liable for damages which could not have been avoided by the exercise of such care. Ark. Stat. Ann. 85-7-204.

A warehouseman is required to exercise due care or a reasonable degree of prudence for the protection and preservation of goods stored with him and is liable for a loss or injury for a failure to exercise such care.

It is well settled law in Arkansas that a motion for directed verdict should be denied unless the testimony, when viewed in the light most favorable to the plaintiff, presents no issue for the jury with respect to the defendant’s liability. The issues in a negligence case where the standard of care is that of a reasonably careful person are peculiarly appropriate for determination by the jury. Bergetz v. Repka, 244 Ark. 60, 424 S.W. 2d 367 (1968).

The court in St. Louis & San Francisco Railroad Co. v. Rie, 110 Ark. 495, 163 S.W. 149 (1913) stated:

It is true, there is no dispute about the material facts in the case, but in such cases it is only where all reasonable minds must draw the same conclusion from the evidence that the question is one of law for the Court. The rule is that where there is room for an honest difference of opinion among intelligent men as to whether the conduct of the defendant was that of an ordinarily prudent person, in view of all the facts and circumstances surrounding him, the question of negligence is one for the jury, although the facts are undisputed.

Doniphan Lumber Co. v. Henderson, 100 Ark. 53, 139 S.W. 649 (1911) also says that where there is an uncertainty as to the existence of negligence in the case it is a question of fact and must be settled by the jury whether the uncertainty arises as a conflict in the testimony or because the facts in the case are undisputed and fair minded men might draw different conclusions from them.

The Arkansas Supreme Court has consistently held that questions of negligence are for the jury and that the court should not direct a verdict for the defendant where there is any question of negligence on the defendant’s part.

The evidence must be viewed in the most favorable light for appellant, and when given its strongest probative force in her favor, we are of the opinion that reasonable minds might reach different conclusions on the question as to whether or not the injury to appellant was caused by the negligence of the appellee, as alleged in her complaint. It was therefore a question of fact for the jury to determine. Robinson v. Little Rock Railway & Electric Co., 113 Ark. 227, 168 S.W. 1125 (1914).

See also Ragland v. Snotzmeier, 186 Ark. 778, 55 S.W. 2d 923 (1933); Palmer v. Dillard, 224 Ark. 155, 272 S.W. 2d 66 (1954); Missouri Pacific Railroad Co. v. Harelson, 238 Ark. 452, 382 S.W. 2d 900 (1964); St. Louis Iron Mountain & Southern Railway Co. v. Hitt, 76 Ark. 224, 88 S.W. 911 (1905); Woodward v. Blythe, 246 Ark. 791, 439 S.W. 2d 919 (1969); Gookin v. Locke, 240 Ark. 1005, 405 S.W. 2d 256 (1966).

Plaintiff alleged the loss sustained was the proximate result of defendant’s negligence in storing and keeping goods and merchandise without the proper security measures appropriate to the situation. Specifically it was alleged that defendant was negligent in not providing proper security measures in the following particulars:

(a) In failing to provide watchmen inside the facility;
(b) In failing to have any burglar alarms or similar systems installed in the warehouse;
(c) In failing to provide roving patrols outside of the building;
(d) In failing to place palletized storage directly against the inside wall at the point of access as was done against other walls to prohibit any attempt to enter from the outside;
(e) In failing to provide other adequate security measures which would have prevented the break-in and subsequent loss to the plaintiff;
(f) In failing to be put on notice that extra security measures were needed after a previous break-in occurred at the warehouse approximately 7 months before the loss was sustained by the plaintiff.

It was also alleged that since the break-in, Blackhawk has realized the security was inadequate and has taken measures to make the facility more secure by hiring guards to patrol both inside and outside the building.

Negligence has been defined as:

The failure to do something which a person of ordinary prudence would do under the circumstances, or the doing of something that a person of ordinary prudence would not do under the circumstances. Self v. Kirkpatrick, 194 Ark. 1014, 110 S.W. 2d 13 (1937).

The court in that case went on to say that if there is any substantial evidence tending to show negligence the question is for the jury.

A review of the evidence shows the following facts were established. It was admitted that two hundred eighty-eight (288) loose 5 gallon cans of Cobex manufactured by plaintiff stored in defendant’s warehouse near Helena, Arkansas, were stolen by a person or persons unknown. Entry was gained by removing or bending back the steel sheet on the east side of the building near where the fire extinguisher was located. Several 50 pound bags of a different chemical were pulled outside in order for someone to get through to the inside of the building. A padlock and chain on the east end overhead door of the warehouse were cut to allow the door to be opened and the material to be removed. A sailboat which was parked in the aisle in front of the door was pulled aside by the use of defendant’s forklift truck which was inside the warehouse. The wiring of the forklift truck was tampered with in order to use this machine. It was locked and the key had been removed and placed in the office. Several pallets of empty packaging material surrounding the Cobex were knocked over blocking the aisle and causing the forklift to be blocked in. It appeared that the Cobex was loaded onto a truck by hand since all of the pallets and pallet caps were left inside of the building.

The nine following things were proven by the appellant. Palletized storage was not placed directly against the inside wall at the point at which the intruder gained access at the time of the theft. A similar break-in occurred at the facility approximately 7 months before the loss suffered by the plaintiff and after that break-in no burglar alarms, roving patrols, watchdogs or watchmen were added as security measures. Burglar alarms have been installed and a security service has been hired to make nightly rounds and check the outside of the building since the occurrence of the theft and loss suffered by the plaintiff. There are customary security standards in this area for agricultural chemicals and those security standards vary with the different type of goods warehoused. The value of the products and the ability to sell the products quickly must be taken into consideration in arriving at these standards. The theft risk classification given to Cobex in this area is very high. It took approximately 80 minutes to 2 hours (man hours) to load the 288 cans of Cobex onto a truck parked a minimum distance of 20 feet from the stacked Cobex. At the time of the theft, U.S. Borax had 26,184 five gallon cans of Cobex stored at Blackhawk Warehousing & Leasing Company and the total value of the Cobex stored at that time was $2,500,000.00. It was stipulated the value of the Cobex taken in theft was $23,658.28.

Some storage was placed against the walls to prevent the building sheets from being removed and the material taken. In so doing, palletized storage was placed against all walls but only to a point approximately 2 feet wide under a fire extinguisher. Fifty pound bags of granular material were placed several high against the wall. Appellee says that the arrangement was designed so that it would not block access to the fire extinguishers. An attempt was made to remove sheets several feet down the wall from the actual point of entry, but palletiz-ed material blocked entry at that point.

After the break-in and loss in question additional measures were added. An ADMECO Burglar Alarm system was installed, and security service hired to make nightly rounds to check outside the buildings.

The evidence introduced to establish the alleged negligence of Blackhawk Warehousing is substantial and sufficient to make a case for the jury. This is especially true when the evidence is considered in the light most favorable to the plaintiff.

The court seems to base the directed verdict on the fact that Donald Serens, who was called as an expert on customs in the warehousing industry by the plaintiff, testified that each individual warehouseman must make the decision as to what security methods to use.

It is well settled law in Arkansas that the value and weight of expert testimony is for the jury to determine. Even where there is no conflicting testimony to contradict the expert’s opinion the jury must decide the ultimate issue.

. . . Were it conceded that all the expert testimony offered by both parties was in full accord and agreement and not contradicted by any other expert evidence, yet the jury would not be bound by such testimony ... ‘Even if several competent experts concur in their opinion, and no opposing expert evidence is offered, the jury are still bound to decide the issue upon their own fair judgment.’ Arkansas Power & Light Co. v. Pollen, 199 Ark. 566, 134 S.W. 2d 585 (1939).
. . . ‘but the jury are the judges of the weight to be attached to their opinion ... It is for the jury to determine what value his opinion is entitled to under the circumstances, and to give it such weight as they think it deserves. ’

It is evident from the previous decisions of this Court that it is the exclusive province of the jury to determine the value and weight to be given the testimony of expert witnesses, and the jury is authorized to believe or disbelieve the whole or any part of such expert witnesses’ testimony. Home Indemnity Co. of New York v. Jelks, 187 Ark. 370, 59 S.W. 2d 1028 (1933).

Expert witnesses are not called upon to decide disputed questions of fact but only to give opinions upon matters upon which their opinions are sought that the jury may determine the question. St. Louis Iron Mountain & Southern Railway Company v. Williams, 108 Ark. 387, 158 S.W. 494 (1913).

The expert said that there were customary security standards in this area for agricultural chemicals and those standards varied with the different types of warehoused goods and the consideration used in determining what standards should be used were the value of the products and the ability to resell the products. The expert witness also testified Cobex had a high theft risk and that fact should be taken into consideration in determining what safety measures were to be used by the warehouseman.

Jonesboro Compress Company v. Hall, 178 Ark. 753, 13 S.W. 2d 298 (1929) is an Arkansas case similar to the one at bar. In that case, complaints were filed by 56 plaintiffs against the Jonesboro Compress Company to recover the value of certain cotton stored by the plaintiffs in the warehouse of the defendant. The cotton was destroyed by fire and the court held the only ground of alleged negligence upon which there was enough testimony to go to the jury was that of the failure by the compress company to keep a watchman on the premises during the noon hour. In the case at bar, not only was there an allegation made that there was no watchman, or other security measures such as alarms, roving guards, or dogs employed at the time of the theft, but such matters were admitted by the defendant in its answers to the interrogatories read into evidence. The case is similar to the one at bar as in the Jonesboro Compress case there was expert testimony offered as to the custom in the industry to employ watchmen at times when the compress was not in operation. The undisputed testimony was that it was not customary to employ watchmen when the compress was not being operated. There was no evidence other than that offered by the defendant that it was not customary to keep watchmen at compresses during the time they were not being operated. In discussing this undisputed testimony, the court said:

Such testimony is admitted not for the purpose of permitting persons engaged in the kind of business out of which the damage arose to artificially, and without the supervision of the Courts, determine what does or does not constitute negligence, but is admitted as bearing upon the degree of care which an ordinarily prudent person would use under the circumstances of this particular case.
The court went on to hold that this was a jury question.
After careful consideration of the testimony, we are unwilling to say, as a matter of law, that the failure of the defendant to keep a watchman at the compress during the noon hour was not negligence, although this was not the custom of other compresses. The jury may have concluded that the fire hazard required the presence of a watchman at the Jonesboro compress. (Emphasis added).

The court also said the testimony showed cotton was one of the most inflammable substances and the care employed should have been commensurate to the attending danger. The court stated that a watchman employed for the purpose would have known the portions of the compress which were open and exposed to danger and might have discovered the presence of the fire and reported or given a fire alarm sooner than was done. This is somewhat analogous to the situation at hand. Here the testimony showed that Cobex is a high theft risk item and the jury might have found, regardless of the custom in the industry, had a watchman been present or roving patrols been on duty or watchdogs or burglar alarms employed at the time of the theft, the watchman could have apprehended the thieves, stopped the burglary, or an alarm could have notified law enforcement officials who could háve reacted promptly, therefore completely thwarting the efforts of the thieves.

We hold that the trial court should have let the matter go to the jury for a jury determination as to whether appellee acted negligently in not providing certain safety measures in light of all of the circumstances shown by the evidence.

Since the case must be reversed for a new trial, little need be said about appellant’s other point. It claims that the court erred in not allowing the expert witness to answer a question which went to the ultimate issue of the case. Since this same problem could arise on retrial, we call attention to The Uniform Rules of Evidence, Rule 704 (Ark. Stat. Ann. 28-1001), which states:

Opinion on ultimate issue — Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Hawkins v. Missouri Pacific Railroad Company, 188 F. 2d 348 (8th Cir. 1951) states:

To permit an expert to state an opinion in a technical field, which the Trial Court feels may be of assistance to the jury, is not an invasion of province of jury, merely because the opinion has relation to some ultimate fact on which the verdict of the jury may depend. Cropper v. Titanium Pigment Co., 8 Cir. 47 F. 2d 1038, 1043, 78 A.L.R. 737.

Experts in Arkansas have been allowed to testify as to the standard of care in other type cases. In McClellan v. French, 246 Ark. 728, 439 S.W. 2d 813 (1969), the Court held an expert could testify as to the standard medical procedures in the community even though this was the ultimate issue to be decided by the jury.

Reversed.

       Appellee contends, accurately, that the wording of the provisions in the Employer’s Mutual policy is different from the wording of the parallel provision in its policy, but the essence of the two provisions is the same.


source: Caselaw Access Project

license: Public Domain

text:
    GRANITE STATE INSURANCE COMPANY v. E. H. BACON, Individually, and E. H. BACON d/b/a ARKANSAS MOTEL and Walter H. BROYLES
    CA 79-88
    586 S.W. 2d 254
    Opinion delivered August 29, 1979
    and released for publication September 25, 1979

      Laser, Sharp, Haley, Young & Huckabay, for appellant.

      Friday, Eldredge & Clark, by: William H. Sutton and Donald H. Bacon, for appellee.
   James H. Pilkinton, Judge.

This case arises out of an admitted error on the part of an insurance agent in procuring fire insurance for an insured. The case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals under Rule 29(3) of the Arkansas Supreme Court.

The Chancery Court reformed an insurance policy issued by Granite State Insurance Company to E. H. Bacon d/b/a Arkansas Motel, Arkadelphia, Arkansas, to provide $55,000 coverage on Unit A of his motel. Under the reformed policy Mr. Bacon was given judgment for $44,899.24 against the insurance company to cover fire damage to the insured property, plus statutory penalties and attorney fees. The insurance company was awarded $540 on a cross action against its agent Walter H. Broyles for the additional premium due on the increased amount of coverage afforded by the policy as reformed.

Appellant does not question any of the pertinent findings of fact made by the Chancellor in the decree. It urges only one point on appeal claiming the Chancellor erred in refusing to award Granite Life judgment over against the agent by way of contribution and/or indemnity for the amounts the company was required to pay, under the reformed policy, in excess of $5,500 coverage provided by the policy actually issued.

Mr. Broyles has handled the insurance affairs of Mr. Bacon for the past several years. The Arkansas Motel consists of three separate units. Unit A involved in this litigation contained eight rooms, together with an office, storage facilities and the Bacon private living quarters. Units B and C contained only rental units. For two years prior to November 7, 1977, Mr. Bacon had insured the motel against fire loss with another company. That coverage was also obtained by agent Broyles. Sometime prior to that date, Mr. Bacon was advised by the other company it was no longer willing to continue to insure the motel. Thereafter Mr. Broyles placed the fire coverage with Granite State Insurance Company. Mr. Broyles and Mr. Bacon had agreed that the agent was to obtain the same amount of insurance coverage by securing a policy from Granite State. In a letter sent to Granite State, Mr. Broyles correctly assigned values of $50,000 each to Unit B and Unit G of the motel, but erroneously typed $5,500 fire coverage for Unit A instead of the intended amount of $55,-000. It is undisputed that the previous premise coverage on Unit A had been $55,000; and that it was Mr. Bacon’s instruction to the agent to procure the same amount on that unit. The Granite State coverage was effective November 7, 1977, but the policy as written on Unit A did not reflect the agreement of the parties as it provided only $5,500 coverage. On December 1, 1977, before anyone involved discovered the error, Unit A was partially destroyed by fire. The loss was within the coverage provided by the Granite State policy, as reformed. The amount of loss is not an issue here.

The facts in this case are almost identical to those in Pennsylvania Millers Mutual Insurance Company v. Walton, 236 Ark. 336, 365 S.W. 2d 859 (1963). In that case the agent and insured had agreed upon a certain coverage. Through a mistake of the agent the insured was left insufficiently covered. In Pennsylvania Millers Mutual the insurance company sought indemnity from the agent. The mistake there was not discovered until after the damage had occurred. In that case too the Chancellor reformed the policy because of error. Judgment was decreed against the carrier in favor of the insured less the difference in the premiums. Upon appeal the insurance company contended, just as Granite State does here, that the liability to the insured was caused by the mistake of the agent and the trial court erred in denying indemnity from the agent. The Supreme Court held that the agent was not liable to the insurance company for the mistake. The court said:

It does not follow, in the absence of a showing of collusion or bad faith, that appellees are liable to appellant for a loss occasioned on an insurance contract which appellees had full power and expressed authority to make on behalf of appellant.

In the case at bar appellant places great emphasis on Mr. Broyles’ negligence. A careful reading of Pennsylvania Millers Mutual Insurance Company v. Walton, shows that the question of negligence, whether related to the insurance company or the agent, is not the issue and the question of negligence should have no bearing on the disposition of this appeal. The one point presented by appellant here may be simply stated. (1) Did agent Broyles have authority to bind Granite State: and (2) would the insurance company have initially accepted the increased coverage? The answer to the first question is almost undisputed. The testimony of the assistant manager of the Granite State Little Rock office confirms that Mr. Broyles, as a general agent, had authority to bind the company to this risk prior to the issuance of the policy as Mr. Broyles claims. The answer to the second question is also clear from the evidence. Mr. Broyles testified there was no doubt in his mind Granite State would have insured Unit A for $55,000 had he requested coverage in that amount instead of the $5,500 by mistake. Mrs. Eileen Cockmon as an underwriter for Granite State confirms the company would have issued a policy for $55,000 if it had been requested by Mr. Broyles, subject to a later inspection. Mrs. Cockmon testified the initial evaluation of property is the agent’s responsibility. She said the company relies on the agent’s expertise and is willing to stay bound on the amount requested by the agent pending an inspection. It is clear from Mrs. Cockmon’s testimony that if Mr. Broyles had not made the error she would have written the policy on Unit A for $55,-000. The testimony of Mr. James V. Sewell, assistant manager of appellant’s Little Rock office, confirms the fact the agent would determine the amount of coverage without prior approval of the company. The inspection report was not issued until some four months after the fire. Whether Mrs. Cockmon may have questioned the evaluation after the inspection is not important here. There is no suggestion of collusion or bad faith on the part of Mr. Broyles. He simply made a mistake, which was not intended, and admits the fact. The testimony indicates to us that Granite State would have issued a policy for $55,000 on the unit in question except for the agent’s typographical error. We hold that the case of Pennsylvania Millers Mutual Insurance Company v. Walton, previously cited and discussed, is controlling of the issue now before this court.

The evidence clearly indicates that the risks such as Mr. Bacon’s motel are of a class that Granite State was accustomed to writing; and is the type of risk, according to Mr. Broyles, which the company actively solicited. Granite State was not drawn into a contract of insurance against a risk which it ordinarily does not insure against.


author: George Howard, Jr., Judge.

text:
    POTLATCH CORPORATION v. Jerry D. HANNEGAN et ux
    CA 79-86
    586 S.W. 2d 256
    Opinion delivered August 29, 1979
    and released for publication September 25, 1979

      Haley <3f Claycomb, for appellant.

      Michael R. Landers, for appellees.
   George Howard, Jr., Judge.

The issue tendered by appellant, Potlatch Corporation, for review is whether the trial court’s action in quieting title to eleven and one-half acres of land in appellees, Jerry D. Hannegan and Mary F. Hannegan, is supported by a preponderance of the evidence.

Jerry and Mary Hannegan’s petition to quiet title, in material part, is as follows:

That the plaintiffs acquired title to said lands by exercising open, notorious and continuous possession of said property along with their predecessors in title since the year 1922 and have occupied said lands adversely . . . since that date.

Potlatch, among other things, denied that petitioners were entitled to the requested relief and asserted:

[T]he possession alleged by Plaintiffs was begun by permission . . . and no notice that this permissive holding had changed to adverse holding was ever brought to Defendant or its predecessors in title prior to the spring of 1978.

The trial court found:

1. The old original fence along the western boundary of the property of the Plaintiffs was erected as a division line between the properties and was extended in 1921 to its present location; that Plaintiffs were in actual possession of the entire disputed area which was adverse to Defendant’s predecessor in title; such possession continued many years past the statutory period and ripened into ownership in Plaintiffs’ predecessor in title before this Defendant acquired its property.
2. That Defendant has not exercised ownership of the disputed area inside the fence line since its acquisition of the property, has had actual notice of the fence line since the early 1960’s and has acquiesced in the fence as a division line.

While a proceeding on appeal from a chancery court is reviewed de novo, it is well recognized that appellate courts will affirm where the holding of the trial court is supported by a preponderance of the evidence.

After carefully reviewing the record, we are persuaded that the findings of the Calhoun County Chancery Court are not against the preponderance of the evidence. We, therefore, affirm the decision.

In order for a claimant to establish ownership to property by adverse possession, he has the burden of proof to show, by a preponderance of the evidence, possession for seven years; that possession was actual, open, notorious, continuous, hostile, exclusive and accompanied with an intent to hold against the true owner. Strieker v. Britt, 203 Ark. 197. Moreover, the hostile character of possession is determined by the occupant’s own views, actions and intentions and not those of his adversary.

Frank Hannegan, an uncle of petitioner, who was born and reared on the property, testified that Millie Hannegan, his mother, took possession of the property in 1914 when she acquired a warranty deed from C. B. Ivy to an eighty acre tract of land that is adjacent to the property in question; that an ancient fence partially enclosed the land in question and in 1921 the fence was extended to enclose completely the eleven and one-half acres; that between 1914 and 1928, the Hannegans cultivated row crops on the land and that he personally plowed the ground with a mule and Georgia stock; that timber representatives of Freeman Lumber Company, one of appellant’s predecessors, would stay in the Hannegan home while checking timber for their employer and that these representatives observed the cultivation and enclosure of the land.

Jerry D. Hannegan testified that he was born on the property, but did not live on it continuously; that between 1946 and 1965 the land was farmed and used as a grazing area for cattle intermittently; that after his father’s death in 1965, he rented the property to Neal Reynolds; that he maintained the fence, kept the ground bush-hogged, and moved back on the place during the spring of 1974; that there has never been any dispute or controversy about the location of the fence.

John R. Todd and Hugh Booth who had known the Hannegan Farm since the middle 1960’s testified that the property was known as the Hannegan Place.

Clifton Wright testified that he had known the Hannegan Farm since 1919 and the property was in cultivation at that time; that he visited the Hannegan Place in 1944 and the fence was intact; and that the fence was regarded as the boundary line.

Anthony Woods, who was called as a witness by appellant, testified:

Q. All right, Mr. Woods, while you were out there working, do you know who really owned — who actually owned — the land that you were working on?
A. Well, nothing more only just what they told me that it belonged to Mr. Roy Hannegan. That’s what he said was his place. That’s all I ever knowed.

Allison Means, a witness called by appellant, testified that he made a survey of the area in 1960; that he discovered the fence encroachment and reported the matter to Rusty Powell, forester for appellant.

The thrust of appellant’s argument for reversal is that appellees’ predecessors’ entry was permissive and that no notice of adverse holding was communicated to it until the spring of 1978; and that appellant has paid all of the ad valorem taxes due. The only testimony offered to establish permissive possession is a purported policy of lumber companies in the area during the 1920’s and 30’s authorizing their neighbors to cut firewood and make use of certain open lands for farming purposes. Frank Hannegan acknowledged his awareness of such a policy, but stated emphatically that he knew of no policy arrangements with reference to the lands, in question. Giving this testimony whatever weight it deserves, we are persuaded that it falls short in establishing that appellees’ possession is permissive in scope.

Moreover, payment of taxes is not essential to establish a claim of title by adverse possession to improved and enclosed lands where claimant and his predecessors are in actual possession.

Affirmed.

      This appeal was originally lodged in the Arkansas Supreme Court, but was transferred to this Court under Rule 29(3) of the Rules of the Arkansas Supreme Court.


author: Ernie E. Wright, Chief Judge.

text:
    Finley Joe AMMONS v. MEUWLY MACHINE WORKS and TRI-STATE INSURANCE COMPANY
    CA 79-48
    587 S.W. 2d 590
    Opinion delivered September 5, 1979
    and released for publication September 26, 1979

      George Howard Bailey, for appellant.

      Wright, Lindsey <3? Jennings, for appellees.
   Ernie E. Wright, Chief Judge.

This case was appealed to the Arkansas Supreme Court and was transferred to the Court of Appeals pursuant to Rule 29.3.

The appeal arises from the denial of a Workers’ Compensation claim, and the judgment of the Pulaski County Circuit Court affirming the decision of the Workers’ Compensation Commission.

The appellant initiated claim for benefits for a hernia which claimant contends he sustained while working for Meuwly Machine Works, the principal appellee. It is undisputed that the employer-employee relationship existed on the date of the alleged injury, May 5, 1977, and that the claimant’s average weekly wage was such as to entitle him to the maximum compensation rate of $84.00 per week. There was evidence that appellant sustained injury on the job resulting in the hernia, but the claim was denied by the administrative law judge on the ground that claimant failed to comply with Ark. Stat. Ann. § 80-1313 (e) which requires:

In all cases of claims for hernia it shall be shown to the satisfaction of the Commission:
(1) . . .
(2) . . .
(3) . . .
(4) . . .
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within seventy-two (72) hours after such occurrence.

The decision of the administrative law judge was affirmed by the Commission with Commissioner Clark dissenting on the ground that the need for the services of a physician was demonstrated and that the rationale of Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S.W. 2d 929 was applicable. Here the claimant attempted to see a physician on the day following the occurrence of the hernia, and there was evidence that he needed, wanted and sought the services of a physician.

The circuit court affirmed the decision of the Commission, and this appeal is from the judgment of the circuit court.

The claimant testified that at about 10:30 a.m. on May 5, 1977, he was lifting a piece of machinery when he felt “a real deep burning in my stomach right below the belt line on the right-hand side”. The pain was severe, he quit working and went to the restroom for twenty to thirty minutes. He returned to work but the severe pain continued. He “puttered around”, put in his time, but didn’t actually work much. He made several trips to the restroom, sitting in a position to relieve the pain. He needed to work all the time possible. When he got home he lay down and told his wife about his pain. They discussed his seeing a doctor but decided to wait to see what developed. The following day he went to work, told his foreman he thought he had hurt himself, how it happened and that he had to make arrangements to see a doctor. The claimant called his family doctor, but he was not available. He explained his problem to the nurse or receptionist. On the following Thursday he was able to obtain an appointment with Dr. Richardson. From examination Dr. Richardson found that claimant had a right inguinal hernia and a successful herniorrhaphy was performed. Medical reports of Dr. Richardson were received in evidence.

Claimant’s wife testified that the claimant “looked terrible” when he arrived home from work on May 5 and that he was leaning over in a bent condition. He told her about how he started hurting when he lifted something at work. He took a bath, laid down and said he’d wait about seeing a doctor and that maybe it wasn’t anything serious. She testified he normally worked until he went to bed, but this night he went directly to bed. She testified his condition was such that he needed a doctor then.

The Commission erred in holding the failure to obtain the attendance of a physician within 72 hours following the occurrence barred claimant from benefits. As pointed out in the Prince case, the statute does not require claimant to prove he was actually attended by a physician within 72 hours after the injury. The statutory requirement is met if the evidence shows that within 72 hours after the injury the claimant’s condition was such that he sought and needed the services of a physician.

The case is distinguished from Harkleroad v. Cotter, et al, 248 Ark. 810, 454 S.W. 2d 76, in that there the claimant made no effort to see a physician until eleven days after the alleged injury. Likewise, in Lashlee Steel Company, et al v. Dodridge, 250 Ark. 520, 465 S.W. 2d 691, claimant contended he was injured on a Thursday. He first saw a doctor on the following Tuesday, some five days after the injury. There was no evidence that he attempted to see a doctor within the 72 hour statutory time period.

In the case at bar evidence on the part of the claimant tends to show the pain at the time of and following the claimed injury was so severe as to cause him to stop working for twenty to thirty minutes, that he was not able to work in his usual way after the incident, the pain was brought to the attention of the claimant’s wife whose testimony was corroborative of his condition, and the claimant needed and sought the services of a licensed physician within 72 hours after the injury. There was no suggestion of malingering or bad faith on the part of claimant.

The judgment of the circuit court is reversed and remanded with directions that the case be remanded to the Workers’ Compensation Commission for further proceedings consistent with this opinion.


author: Ernie E. Wright, Chief Judge. David Newbern, Judge,

text:
    Johnny Henry JONES v. STATE of Arkansas
    CA CR 79-40
    586 S.W. 2d 258
    Opinion delivered September 5, 1979
    and released for publication September 26, 1979

      John W. Achor, Public Defender, by: William H. Patterson, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Paul N. Means, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

This case was appealed to the Arkansas Supreme Court and transferred to the Court of Appeals pursuant to Rule 29(3).

The Appellant Jones was arrested on October 9, 1977 and on November 16,1977 was charged by information with two counts of aggravated robbery and two counts of theft of property. On February 23, 1978, an amended information was filed charging that Jones had previously been convicted of at least two felonies and requesting that sentences should be increased as provided by statute. He remained in custody from October 9, 1977 until March 28, 1978 when he was tried before the court, with jury waived, on two of the felony counts and sentenced to thirty-five years in prison.

From the time of his arrest until trial on the two felony counts Jones was represented by private counsel and thereafter by the Public Defender. After his conviction, he was sent to the penitentiary to serve his sentence.

On October 2, 1978, Jones was arraigned on the other two felony counts which had been severed from the counts previously tried. He was tried before the court, with jury waived, on the remaining two counts on January 31, 1979, after his motion to dismiss for lack of speedy trial had been overruled. He was convicted on both counts and sentences of ten years and three years were imposed.

The sole issue on appeal is whether appellant was denied a speedy trial in accordance with Arkansas Rules of Criminal Procedure and Constitutions of the United States and Arkansas.

As the Rules of Criminal Procedure were designed by the Supreme Court to comply with constitutional requirements we need look only to the rules and Arkansas Supreme Court decisions to determine the issue.

The appellant was tried on the charges now in issue on January 31,1979 following his arrest on October 9,1977. The terms of the Pulaski Circuit Court began on the fourth Monday of September and the first Monday of March. Thus, his trial was within the second full term of the court following his arrest.

Appellant relies on the maximum time of nine months prescribed by Rule 28.1(a), after allowing for exclusion of time periods as provided by Rule 28.3, and if the nine months provision were here applicable, his contention would be well taken.

However, the case falls within the scope of Rule 28.1 (b) which provides:

Any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as are authorized in Rule 28.3.

In this case the defendant was tried during the second full term of the court following the term in which he was charged.

The In Banc decision in Wade v. State of Arkansas, 264 Ark. 320, 571 S.W. 2d 231 (1978), settles the issue here. The court pointed out that where the defendant was not incarcerated incident to the pending charges, but was serving a prior sentence, that Rule 30.1 provides:

(a) • • •
(b) An incarcerated defendant not brought to trial as provided by Rules 28.1 — 28.3 shall not be entitled to an absolute discharge pursuant to subsection (a) hereof but shall be recognized or released on order to appear.

The Wade decision went on to say:

Therefore, it is ridiculous to contend that he should be “recognized or released on order to appear”. That provision would apply to a defendant who is being held in jail pending trial. However, should it be found by the trial court that petitioner is entitled to relief under Rule 28.1 (a), he would not be entitled to have the charges against him dismissed, but Rule 30.1 (c) would apply and the time for trial would be computed pursuant to Rule 28.1 (b) which provides: any defendant charged with an offense in circuit court and held to bail, or otherwise lawfully set at liberty, shall be brought to trial before the end of the third full term of court from the time provided in Rule 28.2, excluding only such periods of necessary delay as authorized in Rule 28.3.

In Wade the court in applying the rules relating to speedy trial treated a situation in which the defendant is serving a sentence and not being held in jail on a pending charge as the equivalent of the defendant being held to bail or at liberty, since his confinement was not under the pending charge.

We hold that Rule 28.1 (b) applies under the facts in the case before us and that appellant’s right to a speedy trial has not been violated.

Affirmed.

Newbern and Hays, JJ., dissent.

David Newbern, Judge,

dissenting. Wade v. State, 264 Ark. 320, 571 S.W. 2d 231 (1978), should not form the basis of the majority decision. In that case, the remedy sought was a writ of prohibition. The Arkansas Supreme Court recited the guarded circumstances in which it would find jurisdiction of the trial court lacking and grant the writ. It was said the writ would not be granted where a fact upon which jurisdiction depended was in dispute. The defense and prosecution disagreed as to some delay time allegedly attributable to the defense. Jurisdiction depended on whether a speedy trial had been granted, and the court simply found a jurisdictional fact to be in dispute. Thus, the case is entirely different from the one presented here, as far as its holding goes.

In Wade, however, the court went on, in dicta, to reach the conclusion outlined in the majority opinion here. It is apparent that the Supreme Court found no procedural rule setting a time beyond which a defendant serving a sentence could not be prosecuted for an offense with which he is charged. Thus the court had to choose from among rules not intended to be applied to ascertain the time limit.

Of course, one has to agree that an accused serving a sentence cannot be released because the state has failed to give him a speedy trial on an allegation having nothing to do with the sentence he is serving, and that Rule 30.1 (b) is not applicable. The choice thus becomes whether to use Rule 28.1 (a) which contemplates a defendant incarcerated and awaiting trial on the charge to which the speedy trial motion applies, or Rule 28.1 (b) which contemplates a defendant “held to bail, or otherwise lawfully set at liberty.” The Supreme Court chose the latter, incorrectly, I believe.

As between these two sub-sections of Rule 28.1, the prosecution is given less time to bring to trial a defendant who is in jail. It is appropriate to give less time to the state where a defendant’s material and psychological assets, to say nothing of his evidence, are dwindling because of his incarceration. Yet, in Wade, and in the majority opinion in this case, it is said that the state should be given more time in the case of a defendant serving a prison or jail sentence than in the case of a defendant who is in prison or jail awaiting trial but not serving a sentence.

In the case of United States v. Ewell, 383 U.S. 116, 86 S. Ct. 773 (1966), a landmark case on the subject of speedy trial, the reasons for the speedy trial requirement were said to be:

[To] prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusations and to limit the possibilities that long delay will impair the ability of the accused to defend himself. 383 U.S. at 120

This decision ignores at least the last of those reasons.

Again, I believe the Wade case is easily distinguishable here and that it should be distinguished whenever possible because it applies a rule in a way its drafters did not envision and in a way it should not be applied. The rule should, of course, be revised to provide for the situation presented here. Until that occurs, incarcerated criminal defendants should be tried within 9 months, as provided in Rule 28.1 (a), regardless of the reason for their incarceration.

I am authorized to say Judge Hays joins in this dissenting opinion.

      Although the case was one in which the U.S. Supreme Court found the speedy trial requirement of Amendment VI to the U.S. Constitution to have been satisfied, the strength of the reasons given in the dictum cited is not diminished. See Cook, Constitutional Rights of the Accused, Pre-Trial Rights, 499. (Lawyers Co-op, 1972).


text:
    C. Carlton SMITH v. STATE of Arkansas
    CA CR 79-23
    587 S.W. 2d 50
    Opinion delivered September 5, 1979
    and released for publication September 26, 1979

      James K. Toung, by: Luther B. Hardin, for appellant.

      Steve Clark, Atty. Gen., by: Robert J. DeGostin, Jr., Asst. Atty. Gen., and James T. Pitts and Richard Callaway, for Securities Department, for appellee.
   James H. Pilkinton, Judge.

Appellant C. Carlton Smith, Jr. was convicted of violating the Arkansas Securities Act, Ark. Stat. Ann. § 67-1235 (Repl. 1966) and was fined $5,000. He has appealed and the case was assigned to the Arkansas Court of Appeals under Rule 29(3) of the Arkansas Supreme Court.

The conviction arose from an alleged offer and sale of stock by appellant to Michael Wilkins of Russellville, Arkansas. It was charged that Smith wilfully employed a device, scheme or artifice to defraud by making untrue statements and failing to reveal material facts.

Mike Wilkins was in the radio repair business and first met C. Carlton Smith in early May, 1976, when Smith entered Wilkins’ place of business in Russellville. Smith said he represented Memphis Mobile Telephone Company, Inc., and was investigating the feasibility of establishing a common carrier radio system in Russellville. He asked Wilkins if he would be interested in servicing the equipment as some local person was needed for that purpose. Smith also said he was looking for a local investor. Wilkins expressed interest, and when Smith came back to see Wilkins a few days later he had Articles of Incorporation with him for a new Arkansas corporation called Russellville Radio Telephone Company. Smith had drawn the incorporation papers without help of an attorney, and had previously filed the document with the Secretary of State on May 5, 1976. He asked Wilkins to file these papers with the local county clerk.

Smith strongly denied at the trial that he made any of the alleged untrue statements or failed to reveal any of the alleged material facts. However the jury verdict on the disputed evidence settled that phase of the case. The sufficiency of the evidence to support that feature of the case is not questioned on appeal. It is undisputed that Smith also prepared a Memorandum of Understanding for Wilkins to sign dated May 9, 1976, and that this document was executed in Russellville. Wilkins gave Smith a total of $5,000 in three separate checks at different times. It is also undisputed that Smith caused 500 shares of Russellville Radio Telephone Company stock to be issued to Wilkins, and that Wilkins lost his money.

I.

Appellant first argues the trial court erred in not directing a verdict for defendant claiming no sale of stock took place within the meaning of the Arkansas Securities Act. Appellant says the transaction was a joint venture with Memphis Mobile Telephone Company and Wilkins. We find no merit in this contention. A promoter cannot avoid the requirements of the Securities Act by simply labeling or calling his enterprise a joint venture when in fact such transaction was something different. As stated by the Arkansas Supreme Court in Schultz v. Rector Morris, Inc., 261 Ark. 769, 552 S.W. 2d 4 (1977):

This court recognizes that regardless of labels, the Arkansas Security Act was designed to protect both investors in common stock and those persons who in substance are investors in the disguised business venture of another.

The obvious purpose of all securities acts is to protect the general public. The U.S. Supreme Court said that the Securities Act of 1933 was designed to protect investors by promoting full disclosure of information thought necessary to informed investment decisions. S.E.C. v. Ralston Purina Co., 346 U.S. 119, 73 S. Ct. 981, 97 L. Ed. 1494 (1953). That is also true of the Federal Uniform Securities Act after which the Arkansas statute is modeled.

As stated by Professor Long in “An Attempt to Return Investment Contracts to the Mainstream of Regulations ”, 24 Okla. L. Rev. 135 (May 1971), there are five significant common characteristics of traditional securities. These common factors can be used to establish a uniform test for the identification of all securities, whether of a specific type or of a general nature, intended to be covered by the act in question, unless a specific contrary definition is contained therein. These elements are: (1) the investment of money or money’s worth; (2) investment in a venture; (3) the expectation of some benefit to the investor as a result of the investment; (4) contribution towards the risk capital of the venture; and (5) the absence of direct control over the investment or policy decisions concerning the venture. Professor Long summarized by stating that a security is an investment of money or money’s worth in the risk capital of a venture with the expectation of benefit to the investor where the investor has no direct control over the investment or policy decisions of the venture. There is no indication in the record before us that the Memorandum of Understanding drafted by appellant in this case, or the stock subsequently issued to Wilkins possesses any special attributes which require them to be treated differently from other forms of securities. This transaction was clearly within the meaning of the Arkansas Securities Act. To hold otherwise would set up a barrier to proper regulation under the act.

II.

Appellant argues as his second point that assuming a “sale” did take place within the meaning of the act, the Circuit Court of Pope County, Arkansas, was without jurisdiction. The evidence shows four separate transactions between defendant C. Carlton Smith and Michael Wilkins: (1) the execution of the Memorandum of Understanding in Russellville on May 9, 1976; (2) the first payment of $345 by Wilkins to Smith at Russellville on May 10; (3) the payment of $800 on June 7 by check drawn on a bank in Pope County; and (4) the $3,855 check to Smith drawn by Wilkins on a bank in Pope County, dated June 10, together with a receipt by Wilkins of Stock Certificate No. 2 issued by Russellville Radio Telephone Company, an Arkansas corporation, for 500 shares. Any one of these transactions would support the jury’s verdict. State v. Swain, 31 P. 2d 745 (Ore. 1934), Green v. Weis, Voison, Cannon, Inc., 479 F. 2d 462 (7th Cir. 1973). To construe the language of the statute otherwise would permit an issuer or dealer to solicit sales at will in Arkansas without complying with our statute so long as an act entirely within his control, such as placing the proceeds in a bank account or issuing stock certificates, was performed at or from another state. To employ the meaning of the word “sale” ascribed to it by the appellant would convert our state into a safe retreat where unscrupulous dealers in securities could ply their vocation provided they did not make actual delivery of stock in this state. State v. Swain, supra. We find no merit in the second point urged by appellant. See also Ark. Stat. Ann. § 67-1260(c) (Repl. 1966); Shappley v. State, 520 S.W. 2d 766 (Tex. Grim. App. 1974).

III.

Appellant next claims the trial court erred in allowing testimony covering prior dealings involving stock transactions defendant had with other individuals. In admitting testimony of this kind, the court has two criteria as a guide. The previous conduct must not be too remote from the offense charged and it must be similar in nature to the offense charged. When such evidence is admitted it must be accompanied by a limiting instruction which the court in this case gave. Appellant does not question the instruction given and does not raise the question of the similarity of acts, but does claim that the other similar acts were too remote. He contends that in Carter v. United States, 549 F. 2d 77 (1977) the court held the only evidence of other crimes permissible under Rule 404(b) is where they are in immediate context or res gestae of the offense on trial. While the court in Carter did recognize the res gestae rule, it did so by expanding Rule 404, not limiting it. See 41 ALR Fed. 515. The case of Cary v. State, 259 Ark. 510, 534 S.W. 2d 230 (1976) made it clear the matter of remoteness is addressed to the sound judicial discretion of a trial judge, which will be interfered with by a reviewing court only when it is clear the questioned evidence has no connection with the case. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537 (1972). The court in People v. Dunn, 40 Cal. App. 2d 6, 104 P. 2d 119 cert. den. 311 U.S. 701, 85 L. Ed. 454, 61 S. Ct. 139 (1940), found that five years between acts was not too remote.

Evidence of similar offenses has been admitted in violations of state security laws in other jurisdictions for the purpose of showing a common scheme or plan. People v. Dutton, 107 P. 2d 937 (1940).

We hold the evidence of other prior similar transactions involving the offer and sale of securities by appellant was properly admitted to show habit and practice of Smith and Memphis Mobile Telephone, operated by Smith, in the normal course of business. Tolbert v. State, 244 Ark. 1067, 428 S.W. 2d 264 (1968); Wilson v. State, 184 Ark. 119, 41 S.W. 2d 764 (1931); and McGhee v. State, 214 Ark. 221, 215 S.W. 2d 135 (1948). It was also properly admitted to show a common scheme, plan and course of dealing by appellant. Kerby v. State, 233 Ark. 8, 342 S.W. 2d 412 (1961).

IV.

Appellant claims that the trial court erred, in light of defense counsel’s continuing objection, in allowing the prosecuting attorney to attack the character of Carlton Smith. We need not reach this issue as it was not raised at the trial level, and the judge had no opportunity to consider the matter. Points raised for the first time on appeal will not be considered. Hilliard v. State, 259 Ark. 81, 531 S.W. 2d 463 (1976); and Ford v. State, 253 Ark. 5, 484 S.W. 2d 90 (1972).

V.

It is also claimed that the court erred in not granting a mistrial on the basis of a reference made by Michael Wilkins to a prior arrest of defendant Smith in Mississippi. The witness Wilkins was explaining why he was upset and, in answering a question about that fact, made what appellant admits in his brief was an off-the-cuff reference to an arrest of Smith as having occurred on a Mississippi warrant at the apartment in Russellville which was also being used by Smith as a temporary office for Russellville Radio Telephone Company.

Declaring a mistrial is an extreme remedy granted only when the error is so prejudicial that justice cannot be served by a continuation of the trial. Motion for a mistrial should not be granted when any possible prejudice can be removed by an admonition to the jury. Limber v. State, 264 Ark. 479, 572 S.W. 2d 402 (1978); Gammel & Spears v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976). After overruling defendant’s motion for a mistrial, the court admonished the jury:

BY THE COURT: I will instruct the jury to disregard the testimony, with respect to any other arrest anywhere else. Can all of you assure me, ladies and gentlemen, that you will disregard that testimony? Let me see by a showing of hands. Let the record reflect that the jury unanimously indicated that they will disregard that testimony.

We cannot see, under the circumstances, that appellant was prejudiced by this reference, but if there was any prejudice, it was removed by the admonition of the court. Johnson v. State, 254 Ark. 293, 493 S.W. 2d 115.

Vi.

Appellant finally argues that the court erred in failing to advise the jury it must find that defendant wilfully employed a device to defraud. This case was carefully tried by the court below and no objection was made to any of the instructions given at the conclusion of the evidence. However, the jury after some deliberations returned and asked the court:

MR. JONES (Foreman): If we have evidence to prove that one or more of these things were done by the defendant, is that sufficient to convict the defendant or can we decide that one or more of these items is not relevant to the law?
BY THE COURT: No Sir. If you found that one or more of those items were actually committed by the defendant, beyond a reasonable doubt, then it is your duty to convict. On the other hand, if you should find that he is guilty of none of those items on there, then it is your duty to acquit him.
BY MR. YOUNG: May I make an objection to that?
BY THE COURT: Yes, sir.
MR. YOUNG: We object to that statement. We feel like they have to find that one of those items resulted in fraud.

It is evident that reference was being made by the jury and court to the instructions in the case. The court then offered to re-read the entire instructions to the jury, but the foreman said this was not necessary as they had all the written instructions before them in the jury room.

We are at a disadvantage in giving consideration to this point. The Information is not abstracted and we have examined the record and do not find it included. We must assume that the Information was properly drawn and followed the language in Section 1 of the act. The wording of the instructions given so indicates. The trial court had previously instructed the jury that an act is done “wilfully” if it is done knowingly and deliberately with bad purpose.

Section 1 of the act has three subparts. We must also assume that the subparts, including subpart (2) relating to the making of a material misstatement or omitting to state a material fact, were connected in the Information. Appellant cites no authority in support of his point VI so we need not consider it on appeal. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606, 609 (1977).

Finding no error, the judgment is affirmed.


author: George Howard, Jr., Judge. Ernie E. Wright, Chief Judge,

text:
    Douglas Ray LEE v. STATE of Arkansas
    CA CR 79-41
    587 S.W. 2d 78
    Opinion delivered September 5, 1979
    and released for publication September 26, 1979

      Gallman & Wiley, for appellant.

      Steve Clark, Atty. Gen., by: Neal Kirkpatrick, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Judge.

Appellant was convicted by a jury of three counts of manslaughter, resulting in a sentence to the Department of Correction for five years and a $500.00 fine on each count, and driving on a suspended driver’s license, resulting in a $100.00 fine. The trial court suspended the fines imposed and ordered the sentences to the Department of Correction to run consecutively.

For reversal of his conviction, appellant has asserted the following points:

1. The trial court erred in admitting into evidence State’s exhibits 4, 5, 6 — color photographs showing the location of the decedents’ bodies at the scene of the one-car accident and the condition of the vehicle driven by appellant — which served little probative value and were highly prejudicial.
2. The court erred in permitting Keith Ferguson — a State Trooper who estimated the speed of appellant’s vehicle at the time of the accident between 80 and 90 miles per hour which estimate was based in part on the speed the trooper could “take the curve” and stay on his side of the road — to give his opinion about the speed appellant’s vehicle was traveling at the time of the accident.
3. The trial court erred in refusing to grant appellant’s motion for a continuance to allow him to secure a vital medical witness — who was subpoenaed the morning of the trial and who resided in a city other than where the trial was being held.
4. The trial court erred in not allowing into evidence the medical records which were compiled by the appellant’s physician and of vital importance to the appellant’s defense.
5. The trial court erred in admitting into evidence Dr. Jorge Johnson’s testimony concerning Tina Randolph’s cause of death after it was conceded by the appellant that the accident was that cause.

We are persuaded that appellant’s points four and five have merit and we reverse and remand to the trial court.

Appellant offered to be introduced into evidence certain medical records compiled by appellant’s attending physician. The records consisted, according to appellant’s counsel, of the admission sheet at the Washington General Hospital, the discharge summary by Dr. McNair and Dr. Harris, the admission by Dr. McNair, the operative report for an operation on October 26, 1978, and the operative record for November 7, 1978.

The following exchange took place after counsel for appellant offered the records:

THE COURT: Any objection, Mr. Clinger?
MR. CLINGER: Your Honor, we object to it, the admission of those documents on the following basis: We all concede those documents would be admissible to be referred to by expert testimony, the medical testimony, but other than that, they do not stand alone and if they’re admitted they don’t give me an opportunity to cross examine the doctors who made those remarks, so there’s no basis for those being admitted.
THE COURT: Alright. The offered exhibit will be excluded and your objection noted.

Rule 803 of the Uniform Rules of Evidence provides, in relevant part:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:
(6) Records of regularly conducted business activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicates lack of trustworthiness. The term ‘business’ as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

As asserted by appellant, the State did not challenge the admissibility of the medical records on the grounds of the lack of trustworthiness or authenticity, but essentially that the State would not be afforded the opportunity to cross examine the doctors who made the records.

The State argues for the first time that the records in any event are irrelevant and if the trial court was incorrect in not admitting the records on the grounds asserted by the State, the trial court should be sustained anyway. The State cites Nelson v. State, 257 Ark. 1, 513 S.W. 2d 496 in support of its position.

First, we perceive that Nelson is to be distinguished from the instant case. The medical records were admitted into evidence in Nelson, but the trial court refused to permit the medical record librarian to read from the records regarding the dates of several brain concussions suffered by appellant, medication prescribed, final diagnoses and summary of the hospitalizations. The Supreme Court of Arkansas, in sustaining the trial court’s action said:

Finally, it is asserted that the court erred in refusing to permit medical librarians to read from medical records which had been offered into evidence by appellant. These records were offered as a matter of furthering the defense of insanity and appellant desired that the hospital employees read inter alia the dates of several brain concussions suffered by appellant, medication prescribed, final diagnoses, and summary of the hospitalizations. The records were properly offered . . ., but this fact in itself does not necessarily mean that all the contents of such records were relevant or competent. . . . Appellant achieved his purpose in offering these records, for the matters heretofore mentioned, with the permission of the court, were not only fully discussed by Mr. and Mrs. Nelson, parents of appellant, but by both the psychiatrist who testified for the defense, and the psychiatrist who testified for the State. The several concussions and circumstances surrounding were related to the jury in detail, and we cannot say that the mere reading of such records by non-experts would have added anything of value to the evidence. . . .

While Dr. Robert Holder testified, in the instant case, that he treated appellant immediately after the accident and observed that appellant was in shock, smelled of alcohol, was uncooperative, combative, resisted treatment and that appellant said he did not know what had happened, Dr. Holder did not comment on appellant’s claim of amnesia regarding events prior to and during the accident, which, appellant contends, may account for his irrational behavior and not as a result of the consumption of alcohol. Dr. Holder also testified that he had not seen appellant’s medical report regarding his injuries and the treatment afforded.

Dr. Jorge Johnson testified that he could not say for certain that appellant had sustained amnesia, but it was possible. Moreover, Dr. Johnson stated that he had not examined appellant.

Inasmuch as the State introduced evidence indicating that appellant was intoxicated at the time of the one-car accident, and appellant persisted in attributing his irrational behavior to amnesia, we are unable to state that the medical records offered by appellant were irrelevant. We believe that Nelson is not controlling.

The State called Dr. Jorge Johnson as a witness who testified that he had treated Tina Randolph, a victim in the accident, and began relating in detail Tina’s dreadful condition and the treatment administered during the four days that she lived after being admitted to the hospital. Appellant’s counsel advised the court that if Dr. Johnson had been called to prove the death of Tina, appellant would concede that her death was caused from the injuries sustained in the accident. The State replied that it was going to prove that Tina “suffered damage that eventually led to her death as a result of the automobile accident.” Counsel for appellant responded, “consider it conceded.” The State continued tp question Dr. Johnson about Tina’s condition and the following exchange took place:

MR. GALLMAN: Excuse me, Doctor. Your Honor, again I thought I had conceded this, what was trying to be proved by this witness.
THE COURT: Well, you can’t control his production of testimony.
MR. GALLMAN: I understand that.
THE COURT: But whether you conceded or not, that’s fine, but he is entitled. It is relevant testimony to the charge here, so he is entitled to put it on if he wants to.
MR. GALLMAN: It seems useless to me.
MR. CLINGER: Thank you, Your Honor.

Appellant argues that after appellant had admitted, in open court, that Tina’s death resulted from the injuries sustained in the accident, appellant was prejudiced by the State in narrating the horrid condition of Tina. While the evidence may have been relevánt, argues appellant, the court should have excluded this testimony because the unfair prejudice outweighed any probative value contained in the testimony. See: Rule 403 of Arkansas Uniform Rules of Evidence.

We are persuaded that although the evidence sought from Dr. Johnson regarding the condition and treatment afforded Tina was relevant, it is plain that its probative value was substantially outweighed by the danger of unfair prejudice, possible confusion of the issues or misleading the jury to the detriment of appellant. While the decision to exclude such evidence is within the discretion of the trial court, we are unable to say that the action of the trial court was not an abuse of discretion. Moreover, it seems to be the universal rule that a defendant in a criminal case may waive his right to confrontation, cross examination and a requirement or duty on the part of the State to prove an element of charge pending against him; and that the waiver of this right may be accomplished by the accused’s counsel as a matter of trial tactics or strategy. See: Diaz v. United States, 223 U.S. 442, 32 S. Ct. 250; United States v. Goldstein; 532 F. 2d 1305.

It is clear that Rule 403 of the Uniform Rules of Evidence was not only designed to exclude relevant evidence on grounds of prejudice, but a trial court in the interest of the efficient administration of criminal justice may exclude evidence, although relevant, where there is a needless presentation of cumulative evidence, upon considerations of undue delays and waste of time.

In conclusion, we deem it sufficient to make the following observations with regard to appellant’s first three points for reversal:

Relative to appellant’s first contention, we are unable to say that the trial court abused its discretion in permitting the jury to review the photographs showing the location of the bodies of the decedents. It seems clear that the photographs were vital in establishing the necessary ingredients of the offenses lodged against appellant.

Regarding appellant’s second contention, we are persuaded that it was harmless error to permit Trooper Ferguson to relate his opinion about the speed of appellant’s vehicle inasmuch as there was other testimony regarding the speed of appellant’s vehicle prior to the occurrence of the accident.

Regarding appellant’s third claim, we are convinced that the trial court did not abuse its discretion in denying appellant’s motion for continuance. It is clear that Dr. McNair was not served with a subpoena until the morning of the trial and appellant failed to inform Dr. McNair that the trial would be held in Bentonville and not in Fayetteville.

Reversed and remanded.

Wright, C.J., dissents.

Ernie E. Wright, Chief Judge,

dissenting. Í respectfully dissent. There was no showing that the hospital records offered in evidence by the appellant were relevant to the issues or that appellant was prejudiced by the action of the court in sustaining the objection to the offer of the records.

In my view the trial court acted within its discretion in admitting the testimony of Dr. Johnson. Dr. Johnson testified as to the injuries to Tina Randolph arising from the motor vehicle accident and that the injuries caused her death. The evidence was relevant, competent and a proper consideration for the jury. The testimony was not inflammatory, and no objection was made that the testimony was prejudicial.

I would affirm.


author: Marian F. Penix, Judge.

text:
    Jerry McAWAY, Administrator v. Lionel C. HOLLAND
    CA 79-80
    __S.W. 2d_
    Opinion delivered September 5, 1979
    and released for publication October 10, 1979

      Bleoins <2f Pierce, by: James W. Stanley, for appellant.

      Matthews & Sanders, for appellee.
   Marian F. Penix, Judge.

This case was appealed to the Arkansas Supreme Court and by that court assigned to the Arkansas Court of Appeals pursuant to Arkansas Supreme Court Rule 29(3).

The complaint seeks damages of $100,000 for loss of decedent’s services, damages of $150,000 for loss of decedent’s future earning capacity, and damages of $2,834.63 for funeral expenses and property damages. This complaint arose from an automobile accident which involved the appellee Holland and the decedent McAway. The administrator of the decedent’s estate contends Holland’s negligence was the sole and proximate cause of decedent’s death. The trial court found the death was not caused by the automobile accident and awarded judgment against Holland for $1,250.00 for personal injury and property damage. The administrator appeals.

The administrator argues the court erred in declaring the accident was not the cause of death. He admits there is no direct evidence available to prove the actual cause, but contends there is ample and substantial circumstantial evidence to show the decedent died as a direct and proximate result of the injuries sustained in the accident. All the circumstantial evidence proffered by the administrator says:

1. Michael McAway (aged 20) lived at home with father before the accident and was an active person, playing sports, working on his car, fishing and hunting, was in no previous accident, had no illness.

2. The decedent had a motor vehicle collision September 6, 1976.

3. The rear glass and front windshield were torn out.

4. Following the accident, decedent was “in pretty bad shape,” “didn’t have any get-up-and-go,” quit working on car, didn’t play sports, did put on weight, had never had this condition before, came home from work tired, lost appetite and limped.

The claimant died suddenly while watching a ball game. Death occurred four weeks after the automobile accident.

Appellant has cited numerous cases in support of his theory that there is enough evidence to connect the negligence of appellee to the death of Mike McAway. All of these cases can be distinguished. St. Louis Southwestern Railway Co. v. Pennington, 261 Ark. 650 (1977) does state that proximate cause may be shown by circumstantial evidence and that not every other reasonable hypothesis must be excluded. The pertinent paragraph of the opinion continues, however, and states,

It is only necessary that there be evidence that would tend to eliminate such other causes as may fairly arise from the evidence and that the jury not be left to speculation and conjecture in deciding between two equally probable possibilities, at P. 663.

Hill v. Maxwell, 247 Ark. 811, 448 S.W. 2d 9 (1969) is in accord.

In Curbo v. Harlan, 253 Ark. 816, 490 S.W. 2d 467 (1973), the decedent died 3 or 4 months after an accident. As in the present case, there was evidence the decedent had been healthy prior to the accident. There was conflicting testimony as to the cause of death. The trial court allowed the issue of causation to be determined by the jury. The crucial difference, however, is that the attending physician testified that in his opinion the death was caused by a blood clot which was a product of the accident. “In retrospect, I can relate this man’s death to nothing else.” Curbo at 820.

Appellant has also cited Biddle et al Receivers v. Jacobs, 116 Ark. 82, 177 S.W. 2d 258 (1914). The facts are again comparable. The decedent was healthy prior to the accident, but afterwards was very sick and subsequently died. No autopsy was performed. The attending physician testified he did not know the precise cause of death, but in his opinion the death was caused by the injury received in the collision. The doctor further testified that the decedent could have had a brain tumor but in his opinion this was not the case.

In Chambliss v. Brinton, 229 Ark. 526, 317 S.W. 2d 143 (1958), there is a similar fact situation. Again, however, there is a critical distinction. Two physicians, each with a different opinion as to causation, testified. The court ruled the jury should determine the cause of death.

Finally, Tri County Gas & Appliance Co. v. Charton, 229 Ark. 989, 320 S.W. 2d 103 (1959) is cited for the proposition that direct proof of causation is not necessary. This case was distinguished, however, in Reeves v. Ark. La. Gas Co., 239 Ark. 646, 391 S.W. 2d 13. Tri-County was said not to have dealt with a question of proximate cause but merely questions about evidence of negligence.

The burden was on the administrator to relate the death to the accident by a preponderance of the evidence. All of the evidence which the administrator attempted to introduce was in the form of lay testimony, which is controlled by the Uniform Rules of Evidence. Article VII of the Rules covers “Opinion and Expert Testimony.” Rule 701 reads “if the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness; and (2) helpful to a clear understanding of his testimony or the determination of a fact in issue.” A reading of this rule seems to indicate the McAways could give their opinion as to the cause of their son’s death. The opinion of the McAways is based on their observation of their son’s health before and after the car accident. Also, this opinion is to go to a determination of the fact in issue. This rule, however, has been interpreted in conjunction with Uniform Rule of Evidence 702 — Testimony by Experts.

Lay witnesses are permitted to give their opinion as to the cause of death or other physical condition if the witness is qualified by experience and observation with regard to the subject matter. “If the subject matter is wholly scientific or so far removed from the usual and ordinary experience of the average man that expert knowledge is essential to the formation of an intelligent opinion, only an expert can competently give opinion evidence as to the cause of death, disease, or physical condition.” 66 A.L.R. 2d 1118, 1127.

Wigmore states there are two questions which need to be resolved before opinion testimony may be given by a lay witness. Is it a subject or topic which requires the witness to have more than ordinary experience, and if so, does this witness have this special experience? Wigmore on Evidence § 1925, Vol. VII, P. 35. Gibson v. Herman, 261 Ark. 236, 547 S.W. 2d 111 (1977) has been cited by appellant as authority for allowing non-experts to testify as to their opinion. The relevant language from that opinion indicates there was evidence that the witnesses, due to experience, were very familiar with the subject matter in general. This is quite different from testimony from a witness with no previous exposure to a sudden death occurrence. All the cases dealing with opinion testimony which are cited by appellant do allow the witness to testify as to his observations. None, however, allows a lay witness to give his opinion as to the cause of death. There is a vast difference between allowing a witness to testify as to whether he believes a person to be ill and in allowing a witness to give his opinion as to the cause of a sudden, unexpected death, unless there is some visible or otherwise obvious trauma which is perceptible to lay persons.

There is no circumstantial evidence — even the most scant — which suggests a causal connection between the accident and death. The mere fact both happened about a month apart proves nothing. If there had been some evidence of causal connection maybe the lay testimony might have been slight corroboration. However, standing alone it is nothing. All of the administrator’s evidence fails to make a prima facie case.

Affirmed.


author: M. Steele Hays, Judge.

text:
    Larry Joe PHILLIPS v. STATE of Arkansas
    CA CR 79-24
    587 S.W. 2d 83
    Opinion delivered September 12, 1979
    and released for publication October 4, 1979

      Tom J. Keith, for appellant.

      Steve Clark, Atty. Gen., by: Dennis R. Mollock, for appellee.
   M. Steele Hays, Judge.

This is a criminal appeal from a sentence of eight years imprisonment upon a verdict of guilty of attempted murder in the second degree. There are two assignments of error: (1) that the opinion of the appellant’s father as to appellant’s alleged insanity should not have been excluded; and (2) that the verdict was against the greater weight of evidence and contrary to law.

The appellant is 27 years of age and resides with his family in the city of Rogers, Arkansas. His living quarters are in a separate structure, immediately adjacent to the family dwelling. Appellant has never worked and is dependent entirely upon his father. In 1968, the appellant was diagnosed as schizophrenic — catatonic type, and on three occasions, during 1969 to 1978, he was admitted to the Arkansas State Hospital. The diagnosis was schizophrenia with mental retardation and, since 1971, drug dependence. On the morning of August 1, 1978, appellant purchased two tubes of airplane glue and inhaled the fumes in a plastic bag. He rested, ate, became nauseated and later mowed the yard for his father. Appellant obtained two more tubes of glue which were also inhaled. Under a delusion that his father had been killed and that his mother was leaving to meet men for sexual purposes, appellant followed her and attacked her in the yard, stabbing her with a paring knife, The wound did not require surgical intervention but required five days hospitalization. Appellant went to his own room where he inflicted a very superficial knife wound to his own abdomen, requiring no stitches. Appellant returned in remorse, readily admitting his act.

On the issue of insanity, Dr. Alan Tuft, a clinical psychologist, testified for the appellant, whom he first examined two or three days after the incident, again several days prior to trial, and on one other occasion. Dr. Tuft’s initial impression of the appellant was that of inadequate personality (Nonpsychotic) and of marginal intelligence but he changed his opinion after his second examination, during which appellant was given tests and based on the results and psychiatric history, Dr. Tuft concluded that appellant was functioning intellectually in the dull normal range, was schizophrenic and subject to drug dependence. Dr. Tuft described a part of the schizophrenic process as being subject to random thoughts he could not control which the glue enabled him to stop. Dr. Tuft’s opinion was that appellant was suffering from a mental disease or defect on December 14, 1978, and on August 1, 1978, to such a degree that he did not have the capacity to appreciate the criminality of his conduct; that the appellant did not have the capacity to conform his conduct to the requirements of the law and was not capable of forming an intent to commit murder on August 1, 1978.

Appellant’s father testified that appellant was hospitalized in 1968; that he heard voices and sounds coming from the radio when the radio was not working; that appellant quit eating and sleeping; that appellant lived with him and was solely dependent on him; in his opinion appellant lenew right from wrong at times and at other times he did not; that there were times when appellant couldn’t make a judgment at all and times when he would be fine; that at other times he would try to “choke me to death”; that at times appellant wouldn’t hurt a fly and then his personality would change and he would be “at the far extreme” of anything normal. Mr. Phillips testified that his son started using drugs in 1971 and had been unmanageable since then; that appellant could be talked out of his “morbid personality” fairly easily before going on drugs; that glue sniffing caused appellant to have fierce anger, to become easily upset and to experience visions and hallucinations; that the glue just added visions to the voices he was already hearing.

On cross examination Mr. Phillips testified to an incident in which appellant had chased his mother with an axe and was committed to the State Hospital as a result of the incident; that appellant had been arrested four or five times for being “high on glue” and served three months on one occasion; that appellant ordinarily calmed down when the police were called.

State’s rebuttal witness, Dr. Travis Wayne Jenkins, psychiatrist, testified that he had seen appellant for evaluation twice recently and had seen him four or five visits in the fall of 1973. On August 11, Dr. Jenkins interviewed appellant and his conclusions were that appellant was drug dependent, had occasions of chronic schizophrenic disorder, and borderline mental retardation. He examined appellant again on December 5, 1978, and had records from the Arkansas State Hospital and other places available to him. Dr. Jenkins’s evaluation of appellant was that he had a history of schizophrenic disorders that did not seem to be actively present in either the August or December interviews; that appellant had chronic, obsessive use of glue sniffing, and borderline retardation. He defined schizophrenia as a major psychiatric illness in which the person cannot maintain contact with reality at times, experiencing delusions and hallucinations. Dr. Jenkins’s opinion was that in August there was no evidence to suggest that appellant was psychotic to the degree of criminal irresponsibility — that he may have had some levels of psychosis but not to the extent that he could not conform his behavior to the standards or right and wrong; that appellant in his opinion had the ability to conform his behavior to the mores of society, with the exception of the compulsive glue sniffing, and could appreciate the criminality of his conduct, even when intoxicated on glue. He stated that he thought the appellant was capable of forming the specific intent to stab his mother at the exact moment he struck the blow.

The appellant’s first point for reversal deals with the following segment of the record (T 54):

Mr. Keith: All right, based on your observation of him on a day in and day out basis, do you have an opinion as to what his mental condition is?
Mr. Clinger: I’m going to object on the basis that the father isn’t qualified to give an opinion, make a mental diagnosis, psychiatric diagnosis.
Mr. Phillips: I believe I am better qualified —
The Court: Just a minute. On what basis do you think this is admissible, Mr. Keith?
Mr. Keith: Your Honor, under the court’s ruling in Little v. State, not very long ago, they said that lay people who have had an opportunity to observe someone can state an opinion as to the mental condition of a person.
The Court: All right. Get it and show it to me.
Note: Mr. Keith Presented the case to the Court.
The Court: All right, Mr. Keith, I will allow you to interrogate this witness as to matters related to defendant’s ability to tell right from wrong, but without further foundation he will not be permitted to testify as to conclusions gained from other people. In other words, from doctors or other sources. He is not entitled to rely on hearsay but he is entitled to testify to things he knows about the defendant’s ability to tell right from wrong. That’s what the case says.
Mr. Keith: Your Honor, also I believe that was based on a trial ruling in regard to mental disease prior to the amendment to the code or prior to the adoption of the code. The case was — it was based on the rules prior to the adoption of the code.
The Court: Well, so what?
Mr. Keith: My position is that since the adoption of the code that it also extends to right or wrong under the old code.
The Court: It is still a part of it.
Mr. Keith: Well, there has been considerable . . . note my exceptions.

From this portion of the record the appellant argues that the question was proper, and that the objection should have been overruled. Appellee impliedly concedes the point, but argues that before a nonexpert can give such an opinion an adequate foundation must be paid, which appellee says was not done.

We agree with appellant that the question was proper under a long and unbroken line of authority in this state beginning in criminal cases with Bolling v. State, 54 Ark. 588 (1891), (and in civil cases even earlier in Kelley’s heirs v. McGuire, 15 Ark. 601 (1851)) and followed consistently down through Hill v. State, 249 Ark. 42 (1972). This rule is not recognized in every other jurisdiction except New York, which prefers the word “rational” versus “irrational” and Massachusetts, which rejects the rule altogether and limits such opinions to experts, with the exception of will contests. 72 ALR 579.

We agree, as well, that the foundation for the question was more than adequate. The witness had testified that he was the appellant’s father, had been the sole support of the appellant during appellant’s life (27 years), that appellant had lived with him during most of his life, and testified to numerous incidents giving an ample basis for an opinion as to his son’s mental competence. So if the issue were the adequacy of the foundation we would have no difficulty with the problem. In all of the decisions which have dealt with this question (cited in footnote 2) not a single witness had as full an opportunity for observation as appellant’s father. As counsel for appellant rightfully asks, if this witness lacks a foundation, where is a foundation to be found? However, we don’t accept that as the issue, for the reason that a careful reading of the cited section of the Record reflects that appellee’s objection to the question was not to the foundation (indeed, the word “foundation” is never mentioned or touched on in the objection) but to the qualification of the witness to make a “mental diagnosis, psychiatric diagnosis.” Obviously, the objection was to opinion testimony by a non-expert witness and for the reason stated, such opinions are clearly admissible on adequate foundation. It follows, therefore, that the objection should have been overruled, but the obvious fact is that it was neither overruled nor sustained in any clear fashion because counsel for the appellant and the court moved into a discussion of Little v. State, 261 Ark. 856 (1977), and both the question and the objection were left hanging. There are numerous decisions to the effect that objections and questions left unresolved are waived and may not be relied upon on appeal. Gallman v. Carnes, 254 Ark. 987 (1973); Riddell v. Little, 253 Ark. 686 (1972); Flake v. Thompson, Inc., 249 Ark. 713 (1970).

To reverse on this point would strain the established rule that no party ought to be allowed to assign as error on appeal a ruling by the trial court that might have been corrected in the first instance by timely objection or inquiry. The rule encourages counsel to call the possibility of prejudicial error to the court’s attention so that it can be corrected or, if not, so that a clear opportunity for correction be given. But even if we could find that the objection was impliedly sustained, we are confronted with the problem that no offer of proof was made and decisions requiring a tender of the testimony an appellant believes should have been admitted are many. West v. State, 55 Ark. 668 (1973); Callaway v. State, 258 Ark. 352 (1975); Ray v. Fletcher, 244 Ark. 74 (1969). Moreover, if the discussion between the court and counsel is examined in context, it seems clear that the words “without proper foundation” used by the trial judge refer to the language in Little, supra; in fact, as he spoke with counsel, the judge was actually reading from the opinion, which dealt with a different type of foundation than here presented. In Little (as in the earlier cases of Hill v. State and Shaeffer v. State cited in footnote 2) the issue was whether a non-expert could give an opinion concerning the defendant’s ability to resist doing wrong (as opposed to the ability to distinguish right from wrong), and the court in Little held that without a further foundation, the opinion of such witnesses was limited to the defendant’s ability to distinguish between the two. It was this sort of foundation the court was speaking of in Little, and it is obvious that the trial court was referring to the same thing.

Finally, even if it can be argued that there was error in this instance, it can hardly be said that the error was prejudicial to the appellant. The question dealt with appellant’s mental competency and the same information was given by the witness later on cross-examination (T. 63):

Q.: You thought he was mentally sick?
A.: I know he was.

Turning to the three questions counsel agrees that he should have been permitted to ask the non-expert witness, i.e.: whether appellant lacked the capacity, as a result of mental disease or defect, a) to conform his conduct to the requirements of law; b) to appreciate the criminality of his conduct, and c) whether appellant had the necessary intent to kill his mother. These are pertinent questions in light of the adoption of Ark. Stat. Ann. §41-601 (Repl. 1977), but we are confronted with the same problem as with respect to the question relating to the appellant’s mental competence. The questions were never asked and, furthermore, there was no offer of proof. Under the decisions cited, supra, a tender of the evidence excluded is essential.

Appellant’s second point is that the verdict is against the greater weight of the evidence and is contrary to law. How the verdict is contrary to law is not made clear, but as to the weight of the evidence the law is that the verdict will not be disturbed on appeal if supported by substantial evidence. Cook v. State, 196 Ark. 1133 (1938); Campbell v. State, 265 Ark. 938 (1979). The evidence presents a case of two well-trained experts in the field of psychiatry, one a clinical psychologist and the other a psychiatrist, both knowledgeable and experienced, holding opposite views as to the effect of the appellant’s psychosis. One was of the opinion that appellant had the ability to appreciate the criminality of his conduct, even when under the effects of the inhalant, and capable of forming an intent to commit murder, and the other one held a contrasting view. This issue was for the jury to decide. Both experts had the benefit of adequate interviews with the appellant, the interviews within close proximity to the trial and to the incident, and both had access to, and made use of, medical records relative to the psychiatric history of the appellant. It is not for us to redecide issues of this sort. The language of Campbell v. State, supra, is applicable:

Appellant contends that we should overrule such decisions as Stanley v. State, 248 Ark. 787, 454 S.W.2d 72, through which we have held that, on appellate review of evidence relating to insanity (or mental disease or defect), this court will not attempt to determine where the preponderance lies, but will affirm the judgment if there is substantial evidence to support the jury verdict on which it is based. This we decline to do. In cases such as this, the jury’s decision depends to a great extent upon the evaluation of credibility of witnesses and determination of the weight to be accorded to their testimony, particularly when expert opinions are critical to the issue.

We find, therefore, that the evidence was sufficient to support the verdict of the jury.

Finding no reversible error, the judgment is affirmed.

      This appeal was originally lodged in the Arkansas Supreme Court, but was transferred to this Court under Rule 29.3 of the Rules of the Arkansas Supreme Court.

        Bolling v. State, 54 Ark. 588 (1855); Shaeffer v. State, 61 Ark. 241 (1898); Green v. State, 64 Ark. 523 (1898); Byrd v. State, 76 Ark. 246 (1905); Schuman v. State, 176 Ark. 88 (1928); Davis v. State, 182 Ark. 123 (1930); Spence v. State, 184 Ark. 139 (1931); Raprich v. State, 192 Ark. 1130 (1936); McKenzie v. United States, 266 F.2d 524 (1959); Hill v. State, 249 Ark. 42 (1970).