text:
    Billy Don TANNER v. STATE of Arkansas
    CR 75-107
    532 S.W. 2d 169
    Opinion delivered February 9, 1976

      Kenneth C. Coffelt, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Billy Don Tanner was charged with the capital felony murder of his sister-in-law, Sue Keith and her two children Carolyn Sue, aged three, and James Randall, aged six, by beating them “and cutting their throats with a knife”. He was found guilty by a jury and sentenced to life imprisonment without parole. He contends on appeal that the statute providing for imprisonment without parole is unconstitutional and that the trial court erred in admitting into evidence a confession and certain photographs.

Appellant argues that the statute [Ark. Stat. Ann. § 41-4707 (Supp. 1973)] is unconstitutional because life imprisonment without parole is in violation of Art. 6 § 18 of the Constitution of Arkansas, which vests the power to grant pardons, reprieves and commutations of sentences in the Governor. This power is specifically recognized in the questioned statute, which specifically provides that one sentenced to life imprisonment without parole may not be released except pursuant to a commutation, pardon or reprieve by the Governor under procedures provided in Ark. Stat. Ann. § 41-4714 (Supp. 1973). Appellant does not question the section relating to the procedures required for the grant of clemency, but says only that the statute is invalid because of the inclusion of the words “without parole”.

Although parole may have some characteristics similar to a pardon or reprieve, we do not take it to be a matter of gubernatorial clemency under our constitution as distinguished from administrative conditional release from imprisonment which may be controlled or prohibited by legislation that is not discriminatory. Parole has been defined as a supervised release from incarceration prior to the termination of a sentence. Roach v. Board of Pardons & Paroles, 503 F. 2d 1367 (8th Cir., 1974). We have, at least tacitly, accepted this definition by saying that one who is released on parole is subject to control and supervision by state authorities and may be returned to prison for violation of rules or conditions under which his parole is granted. Gulley v. Apple, 213 Ark. 350, 210 S.W. 2d 514. In our view, this definition of parole more closely parallels the judicial suspension of a sentence that has been pronounced than the exclusive subjects of gubernatorial clemency - pardon, reprieve and commutation. We have specifically held that the statute allowing postponement or suspension of sentence did not violate Art. 6 § 18. Emerson v. Boyles, 170 Ark. 621, 280 S.W. 1005; Murphy v. State, 171 Ark. 620, 286 S.W. 871, 48 ALR 1189. By like reasoning, Ark. Stat. Ann. § 41-4707 does not either.

Appellant next contends that his confession was involuntary as a matter of law and fact under the undisputed evidence and, therefore, inadmissible. We do not agree. In order for us to reverse the holding of the circuit judge that the state had met its burden of proving that the in-custody confession was voluntary, we must find from an independent determination, based upon the totality of the circumstances, that it was clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515.

In support of his contention, Tanner asserts that his confession was obtained by trickery, that he did not have the assistance of counsel, and that he had been deprived of food and sleep for a long period of time. Tanner did not testify at the Denno hearing and did not produce any witnesses there. The testimony of the officers is, as Tanner concedes, undisputed. We find that it was clearly sufficient to overcome the presumption against voluntariness, if accorded full weight, as it was.

Sheriff Marlin Hawkins was informed of the murders about 1:00 a.m. on August 16. He caused an investigation to be commenced. He went to Tanner’s residence, along with Lt. Howard Chandler, an Arkansas State Police criminal investigator, Dr. Rodney Carlton, the State Medical Examiner, and Deputy Sheriff Earl Smith at 5:00 to 5:30 p.m. and found Tanner out in his yard. Tanner came to the automobile and sat in it beside Hawkins. Hawkins testified that Lt. Chandler advised Tanner of his constitutional rights and that Tanner said he didn’t want an attorney because he hadn’t done anything. Hawkins told Tanner that they were investigating the murder of Mrs. Keith and her two children and told Tanner that there was a rumor that there had been blood on his clothes. The sheriff then asked Tanner where he got the blood. Tanner explained that, while driving his truck hauling logs from Dover to Menifee about 2:00 p.m. on August 15, he had rendered assistance to two boys who had an accident in a vehicle bearing a Kentucky license. According to Tanner, the boys had blood in their hair and this was the source of the blood on his clothes. Tanner told Hawkins that his bloody clothes were in a tub on the back porch of the Tanner house. When Hawkins asked Tanner when he quit work, Tanner replied that it was about 7:30 p.m. and that he had bought a 6-pack of beer and had gone to Little Rock, but he did not know where he went and what he did there. Hawkins then asked Tanner when he had learned there had been a murder and Tanner said that when he returned to his home about 11:00 p.m., his wife told him of it. Hawkins remarked that this was strange because no one knew there had been a murder until Mr. Keith arrived at his home about 12:45 a.m. on August 16. Hawkins then went to check on Tanner’s story, and left further interrogation to Chandler.

Lt. Chandler corroborated Hawkins’ testimony about his advice to Tanner of Miranda rights. He said that Tanner said that he would tell the officers what they wanted to know. According to Chandler, after Hawkins and Smith left, Tanner told Chandler of his activities on the day in question. This narration was virtually identical to that related to Hawkins, except that Tanner told Chandler he was notified of the death about 1:30 a.m., and said that he quit work at 5:30 or 6:00 p.m.

Tanner was taken into custody as a prime suspect and Deputy Sheriff Farrell Bradshaw brought him to the courthouse in Morrilton at approximately 7:30 p.m. Robert Jackson, a deputy sheriff, talked to Tanner there about 7:40 p.m. He said that he then advised Tanner of his constitutional rights and that Tanner signed a waiver of Miranda rights at 7:48 p.m. Jackson advised Tanner of the nature of the investigation and told Tanner that he was the subject of that investigation. Tanner again made his statement about the accident, but Jackson told him that, although there had been such an accident, there had been no injuries. According to Jackson, Tanner then said that he was not responsible for the murders and would take a “lie detector test” to prove his innocence. Jackson said that when Tanner insisted upon such a test, he contacted Sgt. Don Walls, polygraph examiner for the Arkansas State Police, and arranged for one. Jackson, Tanner and Deputy Sheriff John Hawkins, who had also participated in the questioning of Tanner at the courthouse, arrived at State Police Headquarters about 9:15 p.m. Capt. McDonald of the Arkansas State Police was called and trace metal tests were conducted by him when he arrived at headquarters 30 minutes later. This test to determine whether Tanner had handled a weapon such as a knife found at the murder scene was inconclusive. Capt. McDonald, during this time, advised Tanner of his rights, but Jackson could not recall specifically what McDonald had said. At some time after arrival at State Police Headquarters, Tanner reiterated his account of the source of the blood on his clothing. The Conway County officers and Tanner remained with Capt. McDonald until 11:30 p.m. Sgt. Walls then took charge of Tanner and went into Walls’ office in an adjoining room to prepare Tanner for the polygraph examination. Sgt. Walls emerged about 12:35 a.m. and advised Jackson and Hawkins that Tanner wanted to make a statement.

Walls testified that he prepared Tannner for the examination by interviewing him for approximately one hour to get acquainted with him, obtain background information and advise him of the type of questions that would be asked. According to Walls, full development of the subject’s background is time consuming, but essential to proper framing of questions in conducting a polygraph examination. He said that no one else was in the room while this was being done. Walls stated that the examination was never conducted, because Tanner said that he had a statement he wanted to make. Walls then called Hawkins and Jackson and in their presence advised Tanner of his rights. Jackson testified that Tanner then said he had something he wanted to get off his chest.

Tanner then made an oral statement of which handwritten notes were made by Walls and signed by Tanner. The notes were commenced at approximately 12:45 a.m. and completed in approximately one hour. Tanner then wrote out his statement in his own handwriting. He started at about 1:40 a.m. and took about an hour. Walls testified that his notes and Tanner’s written confession were substantially identical.

Jackson had had no supper that evening and felt sure that Tanner had had none. The Conway County officers left the State Police Headquarters about 3:20 a.m. and arrived at Morrilton about 4:20 a.m. Walls had advised.Tanner that he was under arrest on the murder charges at about 3:10. This officer had at that time been advised of the issuance of warrants in Conway County. Tanner was placed in a cell in the Conway County jail with 12 or 14 other prisoners, three of whom had been charged with murder. When arraigned about 10:00 a.m. that morning in the circuit court, Tanner had suffered a beating and was taken to a hospital for treatment. There was no evidence to indicate that any officer struck Tanner or used any physical force on him, and there is no contention by appellant that there was. Appellant emphasizes the fact that at the moment before he signed his confession he was not told of his right to counsel. The evidence would indicate that he had been told of this right four or five times in the preceding hours, once just before he gave the statement.

We certainly cannot say that the circuit judge’s finding that the presumption of involuntariness had been overcome was clearly against the preponderance of the evidence. Furthermore, there was no evidence that required that the state call Deputy Sheriff Hawkins to testify in order to meet its burden of proof. See Gammel and Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976). The reason for requiring the testimony of all material witnesses who were connected with a controverted confession is that otherwise testimony charging violence, threats, coercion, or offers of reward, leniency and assistance stands uncontroverted. See Russey v. State, 257 Ark. 570, 519 S.W. 2d 751; Smith v. State, 254 Ark. 538, 494 S.W. 2d 489. Here there was no testimony for Hawkins to controvert. There was no reversible error in connection with the admission of the confession.

Appellant next challenges the admission of certain photographs showing the bodies of the victims of a very brutal assault because, he says, their only purpose was to inflame the minds of the jury. His argument is that the witnesses could and did adequately describe the scene, the position of the bodies, the lay of the surroundings and every other essential fact and circumstance, including the manner of the killing and the area where the victims were stabbed and struck. He also argues that there was no need for corroboration of the witnesses who testified, relying upon Smith v. State, 216 Ark. 1, 223 S.W. 1011. There we quoted respectable authority that admissibility of photographs depends not on whether the objects portrayed could be described in words, but rather on whether they would be useful to enable the witness to better describe and the jury to better understand the testimony. But we there recognized that the question of admissibility and relevancy of photographs must lie largely within the discretion of the trial judge. We also recognized that the description of the character of wounds inflicted upon the victim is always admissible in evidence, that there was no rule limiting the description to word of mouth and the fact that a photograph was cumulative to oral testimony did not affect its materiality. We took an apt quotation from Nicholas v. State, 182 Ark. 309, 31 S.W. 2d 527, which included this statement: “We do not think the most accurate method of reflecting a truth should be eliminated, but, just to the contrary, such a method should be approved and accepted. ” The mere fact that a photograph which depicts the wounds and injuries inflicted upon a body are gruesome is not sufficient to justify excluding it. Indeed the very thing that makes the photograph appear gruesome is often relevant and very material on such issues as malice, premeditation and deliberation. Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975).

It was shown that the photographs taken within two hours of the discovery of the bodies of the dead woman and her children accurately depicted the scene found by officers when they went to the Keith mobile home where the victims had been slaughtered. One of the objects shown was a broken knife which was undoubtedly one of the murder weapons. The assistant state medical examiner who arrived at the scene within two hours after the photographs were taken, pointed out in testimony in chambers that each of the photographs illustrated that the victims, whose bodies showed evidence that they had been both beaten and stabbed, were alive when stabbed and that the photographs would be helpful to the jury in following and understanding his testimony. There were both black and white and color photographs. This pathologist said that the color pictures showed detail that he could not see in the black and white prints. He did point out in the presence of the jury the features in at least some of the photographs which depicted conditions which lead him to the conclusion that the victims were alive when stabbed and that the stabbing was the cause of death. Admittedly neither this witness nor the chief medical examiner who performed an autopsy on Mrs. Keith used any of the photographs in arriving at their conclusions, but both used the photographs to illustrate things that they had observed about the bodies in arriving at their conclusions. This testimony demonstrates admissibility of the photographs because they shed light on material issues and enabled witnesses to better describe that which was depicted and the jury to understand the testimony. Perry v. State, 255 Ark. 378, 500 S.W. 2d 387.

It is also noteworthy that the photographs tended to corroborate the appellant’s confession, the voluntariness of which was submitted to the jury. See Shipman v. State, 252 Ark. 285, 478 S.W. 2d 421.

Clearly there was no abuse of discretion in the admission of these photographs.

Other objections made by appellant in the trial court, but not argued here, have been carefully examined and found to be without merit. Objections to questions pertaining to the death penalty on voir dire of prospective jurors and excusal of some because of their convictions about the death penalty have been mooted by the jury verdict, as have objections to the bifurcated trial procedure and instructions as to aggravating and mitigating circumstances in the punishment phase of the trial. There was no abuse of discretion in the dis-allowance of a challenge for cause to a juror employed as a nurse at the Conway County Hospital.

We have also considered an'objection made by appellant to procedures relating to the making of peremptory challenges. Although the defendant exercised peremptory challenges, the state did not until eleven jurors were in the box. The judge then asked whether the state accepted these eleven and the prosecuting attorney challenged two of them. After appellant’s objection was overruled, the court advised that appellant would be accorded the same privilege as soon as eleven had been tentatively accepted and appellant’s counsel responded, “We will see what happens.” Thereafter the state excused another prospective juror when there were eleven in the box and the objection was renewed. The next time the State excused one juror when there were eleven tentatively accepted, no objection was made by appellant. After the prosecuting attorney had again excused a prospective juror when there were eleven, the court inquired, “Does the defendant still remain silent?” Appellant’s attorney responded, “I guess so.” Still later, on two occasions when there were eleven in the box, the state challenged none, but appellant challenged one of the jurors.

The names of the jurors had been called individually and they had been examined individually on voir dire by both attorneys. There was no delay until exhaustion, or near exhaustion of challenges. The procedure followed was not identical to that in Clark v. State, 258 Ark. 490, 527 S.W. 2d 619 (1975). Under these circumstances, we must agree with the Attorney General that appellant acquiesced in the procedure. Furthermore, we did not say in Clark that the court had no discretion to allow a challenge after a tentative acceptance of a prospective juror but before the jury selection had been completed, at least where the adverse party has not exhausted his peremptory challenges. See Ruloff v. State, 142 Ark. 477, 219 S.W. 781.

Appellant objected to the testimony of Sgt. Walls relating to the preparation of an individual for a polygraph examination. There was no error here. In the first place, the examination was being had at appellant’s request. But more importantly it was necessary on the question of voluntariness of statements made by Tanner (which was submitted to the jury as to weight and credibility) that there be an explanation of what took place during the period of time appellant was alone with this officer.

It would unduly extend this opinion to recite numerous other objections made by appellant. In their consideration, we have been materially aided by a review of most of them by the Attorney General. It is sufficient to say that we have considered these and others the Attorney General listed as frivolous and find no prejudicial error.

The judgment is affirmed.

      Jackson did not investigate. This information came to him from other officers.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Jim BEAM and Bill BEAM, d/b/a BEAM BROS. CONTRACTORS v. MONSANTO COMPANY, Inc., a Corporation
    75-148
    532 S.W. 2d 175
    Opinion delivered February 9, 1976

      Batchelor & Batchelor, by: Fines F. Batchelor, Jr., for appellants.

      William M. Stocks, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Jim Beam and Bill Beam, d/b/a Beam Brothers Contractors, Inc., from a circuit court order sustaining a demurrer to their counterclaim, as amended, in a suit filed by the appellee, Monsanto Company, Inc., for balance owned on open account. The final demurrer from which comes this appeal was on the grounds that the counterclaim, as amended, failed to state a cause of action under Ark. Stat. Ann. §§ 70-301 — 70-307 (Repl. 1957), and because the relief sought under the counterclaim, as amended, was barred by the statute of limitations. The trial court sustained the demurrer on both grounds.

The points on which the appellants rely for reversal are designated as follows:

“Appellants’ pleadings state a cause of action in fraudulent misrepresentation in sales resulting in damages.
The trial court erred in holding that the Arkansas Unfair Practices Act, Ark. Stats. 70-301 — 70-314 has no application to vertical competition, by sustaining demurrer to prayer for relief and damages.
The trial court erred in holding that the statute of limitations had run upon claims of appellants, as a matter of law, based upon the pleadings.
The trial court erred in refusing to compel discovery by requiring appellee to respond to interrogatories served.
The trial court erred in denying summary judgment in favor of appellants.
Under Arkansas Practice, a demurrer may not be filed after the filing of an answer in the action.”

This litigation was commenced on March 25, 1970, when Monsanto filed suit against Beam Brothers for balance on account, for oil and related products purchased and used by Beam Brothers in mixing asphalt concrete paving material at their plant at Fort Smith and later at Prescott, Arkansas. By amendment filed June 8, 1970, Monsanto alleged that Beam Brothers was indebted to Monsanto in the amount of $14,341.24 for merchandise and material furnished between March 19, 1969, and September 30, 1969. A number of amendments, motions, interrogatories and answers thereto were filed by the parties and on November 30, 1971, Beam Brothers filed a separate answer and counterclaim designated “Cross-Complaint” in which they alleged an assignment which should have been applied on the alleged indebtedness, and otherwise they denied the allegations in the complaint. In paragraph III of their answer Beam Brothers alleged as follows:

“These defendants further specifically allege that the plaintiff specifically represented to defendants that it was selling to them the A C Oil for the making of asphalt concrete by said defendants at as low a price as it was selling to anyone else, when, in fact, from approximately May, 1966, through the last purchase of said oil from plaintiff, which plaintiff alleges to have been September 25, 1969, plaintiff was charging these defendants more per ton for said oil than it was charging to other customers who were buying such materials of like quantity and quality in different locations, sections, communities, cities, and portions thereof in this State with the intent to destroy competition of these defendants who were regular established dealers in such commodities, products and services and prevent these defendants from competing with other persons, firms and corporations, in violation of Ark. Stats. 70-301 and following, and that any amounts which plaintiff claims to be owed to it, in fact any be found to be owed, would be owed under a contract, expressed or implied, and made by and between persons, firms and corporations in violation of the provisions of Ark. Stats. 70-301 through 70-307, therefore under the provisions of Ark. Stats. 70-309, said contract is illegal and no recovery can be had thereon or by reason thereof.”

The designated cross-complaint then alleged in part as follows:

“These defendants were previously engaged in contracting business which includes bidding upon Arkansas Highway Department, highway jobs, building streets, driveways, parking areas and other improvements of asphalt construction, and as a part thereof operated a plant which made asphalt from its various components including, but not limited to an A C type oil which was purchased from plaintiff, sand gravel, and other ingredients, from [for] such manufacturing said asphaltic cement which was used in their business. While this business was originally commenced in the area of Fort Smith, Arkansas, it was moved to Prescott, Arkansas, where it operated at all times material hereto.
Said plaintiff being a person, firm or corporation doing business in the State of Arkansas and engaged in the production, manufacture, distribution or sale of any commodity or product, or service or output of a service trade, or general use or consumption, unlawfully, and with the intent to destroy the competition of a regularly established dealer in such commodity, product of service, did discriminate between different sections, communities and cities and portions thereof, and between different locations in such sections, communities, cities and portions thereof in this State by selling and furnishing said commodity, product and service at a lower rate to one section, community and city, or any portion thereof, and in one location in such section, community and city and any portion thereof than in another, after making allowance for difference, if any, in the grade or quality, quantity and in the actual cost of transportation from point of production or manufacture. That by reason thereof, these defendants were unable to competitively bid upon various jobs, and particularly Arkansas State, Federal Aid Highway jobs, and by reason thereof, these defendants were, in fact, completely put out of business.
By reason of such unlawful and wrongful actions as herein before set out on the part of plaintiff, these defendants were damaged in the amount of $15,000.00 by over charge upon said oil products, and were caused to lose their entire business, and presently have numerous judgments and liens filed against them, are unable to bond jobs, which is essential in their business operation, have lost all of their equipment and earnings, together with real estate, to their damage in the amount of $750,-000.00, or a total actual damages to these defendants in the amount of $765,000.00, and therefore, under the provisions of Ark. Stats. 70-301 and following, and 70-310 in particular, these defendants are entitled to damages against plaintiff in the amount of three times the amount of the actual damages, or a total of $2,295,-000.00.
WHEREFORE PREMISES CONSIDERED, the defendants, Jim Beam and Bill Beam, respectively pray that the plaintiff, Monsanto Company, Inc., a corporation, take nothing against them by reason of its complaint herein filed, and that they have judgment against said plaintiff, Monsanto Company, Inc., a corporation, in the amount of $2,295,000.00, the same being three times the amount of their actual damage of $765,000.00, and that they have all other just and legal relief to which they might be entitled.”

On January 3, 1972, Monsanto filed a reply and demurrer to the counterclaim. The reply denied the allegations set out in the counterclaim and for demurrer Monsanto alleged as follows:

“1. The counterclaim, styled cross-complaint, fails to state a cause of action under Ark. Stats. Section 70-301 through 70-307.
2. The relief sought in the counterclaim is barred by the appropriate statute of limitations, and particularly Ark. Stats. Section 37-204.”

On January 7, 1972, Beam Brothers filed a response to Monsanto’s reply and demurrer in which they reasserted that Ark. Stat. Ann. §§ 70-303 — 70-313 were applicable to the case and under paragraph III of this instrument they stated as follows:

“Although these defendants, Beam, carefully studied and attempted to determine what prices were being charged, the plaintiff did fraudulently conceal its actions, and using all efforts available to them, to their knowledge and the exercise of diligence, these defendants were unable to determine or learn of the wrongful acts and concealment of plaintiff until on or about the 1st day of June, 1970, and therefore, the Statute of Limitations did not begin to run against them until that time, and this being a statutory right not otherwise provided for, the five year Statute of Limitations of Ark. Stats. 37-213 applies.”

On May 31, 1972, the trial court sustained the demurrer with leave to amend. On June 9, 1972, Beam Brothers filed their first amendment reciting substantially the same allegations as in their original counterclaim. Monsanto again demurred to the amended counterclaim and the demurrer was again sustained by the trial court with leave to amend. On September 10, 1973, Beam Brothers filed their second amendment to their counterclaim alleging in part as follows:

“Plaintiff, by and through its agents, servants, and employees, acting within the scope of their agency, service and employment, did represent to defendants, that plaintiff was selling to defendants, materials at the same price the same were being sold to other contractors in the same business, at the time knowing said representations to be false, expecting plaintiffs to rely thereon, to their detriment, which they reasonably did, and such false representations and facts being material, and contracts for various jobs, including Arkansas State Highway jobs, were bid on the basis of such representations as being a principal ratio and percentage of materials to be furnished, thereby intentionally causing defendants to overbid upon jobs in proportion to such overcharge for their materials, and fail to obtain jobs, which resulted in the intended loss of defendants’ entire business operation, resulting therefore in actual damages to defendants in the amount of $765,000.00, and entitling said defendants to punitive damages against plaintiff in the amount of $1,530,000.00, and although defendants used due diligence, they were unable to learn of such wrongful actions upon plaintiff’s part until less than 3 years prior hereto.”

Monsanto filed an amended reply and answer to the second amendment stating that it adopted all former pleadings; that the amended complaint did not state a cause of action; that the action stated was barred by the statute ofiimitations, and that it denied the allegations in the counterclaim as amended by second amendment. Following additional motions and other pleadings not germane to the issues on this appeal, Monsanto filed an additional demurrer on the same grounds as the previous demurrers and this demurrer was also sustained by the order appealed from, which recited as follows:

“1. The counterclaim, as amended by all amendments, fails to state a cause of action under Ark. Stats. Section 70-301 through 70-307.
2. The relief sought by the counterclaim as amended by all amendments is barred by the applicable statute of limitations.”

Ark. Stat. Ann. §§ 70-303 — 70-313 (Repl. 1957) is the “Unfair Practices Act” and it simply does not apply to the alleged facts in this case. Section 70-301 provides as follows:

“it shall be unlawful for any person, firm, or corporation, doing business in the State of Arkansas and engaged in the production, manufacture, distribution or sale of any commodity or product, or service or output of a service trade, of general use or consumption, or the product or service of any public utility, with the intent to destroy the competition of any regular established dealer in such commodity, product or service or to prevent the competition of any person, firm, private corporation or municipal or other public corporation, who or which in good faith, intends and attempts to become such dealer, to discriminate between different sections, communities or cities or portions thereof, or between different locations in such sections, communities, cities or portions thereof in this State, by selling or furnishing such commodity, product or service at a lower rate in one section, community or city, or any portion thereof, or in one location in such section, community, or city or any portion thereof, than in another after making allowance for difference, if any, in the grade or quality, quantity, and in the actual cost of transportation from the point of production, if a raw product or commodity or from the point of manufacture, if a manufactured product or commodity. This act [§§ 70-301 — 70-314] shall not be construed to prohibit the meeting in good faith of a competitive rate, or to prevent a reasonable classification of service by public utlitiés for the purpose of establishing rates. The inhibition hereof against locality discrimination shall embrace any scheme of special rebates, collateral contracts or any device of any nature whereby such discrimination is, in substance or fact, effected in violation of the spirit and intent of this act.”

Section 70-310 provides as follows:

“Any person, firm, private corporation or municipal or other public corporation, or trade association, may maintain an action to enjoin a continuance of any act or acts in violation of sections 1 to 7, inclusive [§§ 70-301 — 70-307], of this act and, if injured thereby, for the recovery of damages. If, in such action, the court shall find that the defendant is violating or has violated any of the provisions of sections 1 to 7, inclusive [§§ 70-301 — 70-307], of this act, it shall enjoin the defendant from a continuance thereof. It shall not be necessary that actual damages to the plaintiff be alleged or proved. In addition to such injunctive relief, the plaintiff in said action shall be entitled to recover from the defendant three [3] times the amount of the actual damages, if any, sustained.
Any defendant in an action brought under the provisions of this section or any witness desired by the State, may be required to testify under the provisions of sections 3110 - 4137-4139-4140-4141-4142-4143-4150-4151-4152-4153-4192-7151 of Crawford and Moses’ Digest of the Statutes as amended of this State, in addition the books and records of any such defendant may be brought into court and introduced, by reference, into evidence; provided, however, that no information so obtained may be used against the defendant as a basis for a misdemeanor prosecution under the provisions of sections 1 to 7, inclusive [§§70-301 — 70-307], and 11 [§70-311] of this act.”

The purpose of the Act is set out in § 70-313 as follows:

“The Legislature declares that the purpose of this act [§§ 70-301 — 70-314] is to safeguard the public against the creation or perpetuation of monopolies and to foster and encourage competition, by prohibiting unfair and discriminatory practices by which fair and honest competition is destroyed or prevented. This act shall be literally construed that its beneficial purposes may be subserved.”

We now consider the appellants’ points in the order listed. As to appellants’ first point, both parties agree that the last counterclaim pleaded by the appellants in their amendment on September 10, 1973, alleged common law fraud or deceit. The three-year statute of limitations applies to fraud and deceit. Ark. Stat. Ann. § 37-206 (Repl. 1962); White v. McBride, 245 Ark. 594, 434 S.W. 2d 79 (1968). So the key issue on this point is whether the appellants alleged a cause of action for fraud or deceit in their first counterclaim as amended on November 29, 1971 and on June 9, 1972. The counterclaim as thus amended obviously did not allege such cause of action. Consequently the appellants’ action for deceit only existed prior to September 10, 1973, if their September 10, 1973, amendment or counterclaim was merely an expansion or amplification of an allegation of deceit expressed in their first or second counterclaim and not an introduction of a new cause of action. Bridgman v. Drilling, 218 Ark. 772, 238 S.W. 2d 645 (1951). We are of the opinion that the amendment of September 10, 1973, stated a new cause of action and the trial court was correct in stating that, “The relief sought by the counterclaim as amended by all amendments is barred by the applicable statute of limitations.”

The appellants argue that the trial court erred in granting this demurrer because in testing a case on demurrer the court is required to construe allegations in the pleadings liberally in favor of the pleader. Citing Quinn v. Stuckey, 229 Ark. 956, 319 S.W. 2d 839 (1959). In Quinn this court said:

“At the outset it is well to state the rule for testing a case on demurrer. In Tyler v. Morgan, 214 Ark. 667, 217 S.W. 2d 606, we said:
‘Appellees demurred to this complaint on the ground that it did not state facts sufficient to constitute a cause of action. The trial court sustained the demurrer and this appeal followed.
The question presented is: Treating all allegations in the complaint, which are well pleaded, as true, and construing them liberally in favor of the pleader, as we must, was a cause of action stated? * * *’ ” (Emphasis added).

To be well pleaded fraud or deceit must be specifically alleged. In Burns v. Burns, 199 Ark. 673, 135 S.W. 2d 670 (1940), we said:

“This court has many times held that where fraud is relied upon the complaint must state something more than mere conclusions, but the facts relied upon as constituting the fraud must also be clearly set forth in the complaint to justify the court in overruling a demurrer. ”

In the early case of McIlroy v. Buckner, 35 Ark. 555 (1880) this court said:

“It is not sufficient to plead fraud generally, or merely to characterize actions as fraudulent. The facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation, craft, finesse, or abuse of confidence, by which another is misled, to his detriment; and these, or some of them, must be alleged and proved. Mere epithets, or adverbs characterizing conduct, which in itself, may be innocent, amount to nothing.”

This court has adhered to the general rule that fraud, as an affirmative defense, must be specifically pleaded by the party claiming it. Bridges v. Harold L. Schaefer, Inc., 207 Ark. 122, 179 S.W. 2d 176 (1944); Van Houten v. Better Health Ins. Assn. of America, 238 Ark. 815, 384 S.W. 2d 465 (1964).

Prosser, Law of Torts' 4th ed. § 105 at p. 685 states the elements of the tort cause of action in deceit as follows:

“1. A false representation made by the defendant. In the ordinary case, this representation must be one of fact.
2. Knowledge or belief on the part of the defendant that the representation is false — or, what is regarded as equivalent, that he has not a sufficient basis of information to make it. This element often is given the technical name of ‘scienter. ’
3. An intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation.
4. Justifiable reliance upon the representation on the part of the plaintiff, in taking action or refraining from it.
5. Damage to the plaintiff, resulting from such reliance.”

In Cleveland v. Biggers, 163 Ark. 377, 260 S.W. 432 (1924), this court approved a pleading of fraud as sufficient to support damages, saying:

“We think, however, that a cause of action for damages was stated. By fair intendment the complaint does allege a representation and its falsity, that the vendees relied upon said representation, and had a right so to rely, and were deceived thereby, that the false representations were material to the contract, and resulted in plaintiffs’ damage, and were made to accomplish that purpose.”

An examination of the appellants’ counterclaim as amended by the first and second amendments reveals that they neither specifically set out the misrepresentations, nor pleaded the elements of deceit. They did not state that Monsanto’s representation as to its price of A C oil was false at the time made, or that price was material to the transaction, or that appellants relied upon this representation. In their third counterclaim appellants specifically allege these elements. However, the trial judge was correct in determining that the appellants’ third counterclaim was an attempt to bring in a new cause of action barred by the statute of limitations.

As to the appellants’ second point, the order of the trial court stated, “The counterclaim, as amended by all amendments, fails to state a cause of action under Ark. Stats. Section 70-301 through 70-307.” The appellee argued in the trial court and also on this appeal that since it was not in competition with the appellants, there was no violation of the Arkansas Unfair Practices Act. Appellants argue that as buyers of appellee’s goods, they were in “vertical competition” with appellee and that the trial court errej in not considering this “vertical competition.” The appellants’ argument is without merit. Aside from the purpose as recited in the statute, § 70-313, supra, the parties have cited three cases in which this court has also stated the purpose of the statute. Baratti v. Koser Gin Co., 206 Ark. 813, 177 S.W. 2d 750 (1944); Concrete, Inc. v. Arkhola Sand & Gravel Co., 228 Ark. 1016, 311 S.W. 2d 770 (1958); Concrete, Inc. v. Arkhola Sand & Gravel Co., 230 Ark. 315, 322 S.W. 2d 452 (1959). All three of these cases involved competition between sellers. In each case this court said that the Unfair Practices Act makes it unlawful to lower prices in certain areas with the intent to destroy competition. But, appellants argue these cases cannot be controlling in a situation involving “vertical competition”; that is, competition between -seller and buyer. The reason appellants’ argument is without merit is found not in case authority, but in the construction of the statute. The Arkansas Unfair Practices Act is penal in nature and imposes liabilities unknown at common law; therefore, it must be strictly construed in favor of those upon whom the burden is sought to be imposed, and that which is not clearly expressed will not be taken as intended. Davis v. Fowler, 230 Ark. 39, 320 S.W. 2d 938 (1959). The first section of the Unfair Practices Act, § 70-301, supra, applies to .the,

“. . . production, manufacture, distribution or sale of any commodity ... of general use or consumption . . . with the intent to destroy the competition of any regular established dealer in such commodity ... or to prevent the competition of any person, firm . . . [or] corporation . . . who or which in good faith, intends and attempts to become such dealer, to discriminate between different sections . . . in this State, by selling or furnishing such commodity, product or service at a lower rate in one section . . . than in another. ...” (Our emphasis).

It is apparent that the statute is intended to foster competition for the primary benefit of the general public by protecting dealers, especially small dealers from unfair competition by large dealers. The term “dealer” is not defined in the statute but its common meaning, as defined in Random House Dictionary, is “one who buys and sells articles without changing their condition.” Appellants’ argument for “vertical competition” would broaden the Act to not only protect dealers, those who buy and sell, from unfair competition by other dealers, but would also protect buyers from competition by the various and sundry business buyers who use and purchase the same or similar product for use-in their various businesses. The concern of the Unfair Practices Act is to prevent goods which are unfairly priced below the goods of competitors from temporarily entering the market and forcing the competitor out of business, thus gaining a monopoly within a given locality after which time the prices may be raised without limit and without competition to the final detriment of the public interest. The emergency clause of the Unfair Practices Act recites as follows:

“The sale at less than cost of goods obtained at forced, bankrupted, close out, and other sales outside of the ordinary channels of trade is destroying healthy competition and thereby forestalling recovery. If such practices are not immediately stopped many more businesses will be forced into bankruptcy, this increasing the prevailing condition of depression. In order to prevent such occurrences it is necessary that this act go into effect immediately. Approved March 17, 1937. ”

What we have already said disposes of the appellants’ third and fifth points, and we find no merit to the appellants’ fourth point under the facts in this case.

Under appellants’ sixth point they contend that under Arkansas practice a demurrer may not be filed after the filing of an answer in the action. The appellants overlook the fact that appellee’s response to appellants’ second amendment to Separate Answer and Counterclaim, entitled Plaintiff’s Amended Reply and Answer filed October 12, 1973, included a demurrer. It is a well settled rule of law that a pleading will not be judged by what it is called but by what it contains. Smith Chickeries v. Cummings, 224 Ark. 743, 276 S.W. 2d 48 (1955); Askew v. Murdock Acceptance Corp., 225 Ark. 68, 279 S.W. 2d 557 (1955); Stroud v. Barksdale Lbr. Co., 229 Ark. 111, 313 S.W. 2d 376 (1958); Little Rock Land Co. v. Raper, 245 Ark. 641, 433 S.W. 2d 836 (1968). Paragraph three of the appellee’s response contained the classic statement for a general demurrer. “Plaintiff further states that the counterclaim as amended fails to state a cause of action.”

The judgment is affirmed.


text:
    HORSESHOE BEND BUILDERS, Employer, THE TRAVELERS INSURANCE COMPANY v. Frank A. SOSA, Jr., Employee
    75-212
    532 S.W. 2d 182
    Opinion delivered February 9, 1976

      Wright, Lindsey & Jennings, for appellants.

      Murphy & Blair, by: H. David Blair, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case and the onestion is whether there was any substantial evidence to support the Commission’s finding, as affirmed by the circuit court, that the claim was controverted by the appellant insurance carrier and in awarding attorney’s fee against the carrier in addition to compensation awarded to the appellee-claimant.

The facts appear as follows: On July 23, 1973, the appellee-claimant, Mr. Sosa, injured his left leg when he fell from a scaffold while working as a carpenter’s helper on a building at Horseshoe Bend. The appellee was sent to Dr. Carhart, an osteopath and only physician in Horseshoe Bend, and apparently an A8 or first report of injury form prescribed by the Commission was sent to the compensation carrier by the employer indicating the injury to be of a minor nature with no compensable lost time indicated. The appellee did not return to the job site or contact his employer; however, he did continue to go to Dr. Carhart for a period of approximately two weeks and when Dr. Carhart indicated to the appellee that he intended to dismiss him as able to work the appellee contacted his attorney, Mr. Blair. Through attorney Blair’s assistance the appellee obtained an appointment with Dr. Langevin, a general surgeon in West Plains, Missouri, who first saw the appellee on August 9, 1973.

On August 15, 1973, Dr. Langevin reported to Mr. Blair that the appellee was seen by the doctor on August 9, 1973, complaining of lumbo sacral pain and inability to bear weight on his left leg. He then stated:

“Examination revealed a large sub periosteal hematoma over the left tibia, gross blemish discoloration down the left lower leg, and tenderness over the sacroiliac joints and right buttock.
* * *
In my opinion, permanent disability would not be expected but a hematoma such as he has on this left leg, can be debility for some time.”

The record is not clear on the point but apparently the appellee was paid some amount of compensation while under the treatment of Dr. Langevin. In any event on October 2, 1973, Dr. Langevin reported to the compensation carrier as follows:

“Since the last time we made a report, I saw Mr. Sosa twice, 8-23-73 and 8-30-73. On the last visit I aspirated 7cc of blood from the hematoma over the left tibial area.
I have not seen him since 8-30-73 and assumed that he had not returned because he was well.”

On October 4, 1973, the appellee’s attorney, Mr. Blair, wrote a letter to Mr. Ray Henthorne, the compensation carrier’s representative, as follows:

“I interpret Dr. Langevin’s letter to you of October 2, 1973, to indicate that Mr. Sosa’s healing period was terminated on August 30, 1973. I assume that you will pay him benefits to this time, which should conclude his claim.
I am enclosing herewith a copy of a statement from Dr. Langevin dated October 10, 1973, which, to my knowledge, has not been paid, and also a statement dated August 15, 1973, for medical services to Mr. Sosa, which I have already paid myself. If you could pay the October statement directly to Dr. Langevin and reimburse me on the August statement I would appreciate it very much.”

Apparently the amounts were paid and the claim considered terminated by the carrier as of August 30, 1973, as requested and suggested by the appellee’s attorney in the October 4 letter, supra, and as hereafter indicated in correspondence dated December 14.

On December 4, 1973, Dr. Langevin made another report to Mr. Blair which stated in part as follows:

“This [is] a note concerning the patient Frank Sosa I talked to you about on the telephone.
As I told you I had not seen him since 8-30-73 and presumed he was well until he walked into my office 11-12-73. At that time he had a rather severe swelling of lymphedema of the left lower leg from the knee down which was also painful and extremely tender.”

Dr. Langevin then stated that the appellee was hospitalized; the swelling reduced by treatment and that he was fitted with an elastic stocking and instructed to wear it at all times during the day. He concluded this report as follows:

“I will follow him in the clinic until we see if this is going to be a permanent deficit.”

On December 10, 1973, the appellee’s attorney wrote another letter to Mr. Henthorne advising of the most recent medical report from Dr. Langevin and enclosed a copy of the report and Dr. Langevin’s bill. This letter then concluded as follows:

“I believe Mr. Sosa would be still entitled to temporary permanent [sic] benefits and if you could pay them from the time they were terminated to date I would appreciate it. Also, if you would please take care of the enclosed statement from Dr. Langevin I would appreciate that also.
If there is any problem about any of these items please let me know.
When I have some further word on him I will relay it to you.”

On December 14, 1973, Mr. Blair wrote another letter to Mr. Henthorne and this letter was apparently returned by Mr. Henthorne with Mr. Henthorne’s handwritten reply on the bottom thereof. The letter from Mr. Blair recited as follows:

“I received and thank you for the check in the amount of $37.50 for payment of the outstanding medical expenses in connection with the above-numbered claim.
I assume that the check for back temporary total was forwarded directly to Mr. Sosa. If I am in error on this please let me know.”

The handwritten reply from Mr. Henthorne recited as follows:

“Sosa pd $333.00 comp; I’ve also pd Dr. Langevin $20.00 and you & clmt $37.50. Apparently add’l TTD benefits will be due and I’ll discuss that with you on my next visit to Batesville.”

On January 11, 1974, Mr. Blair mailed to the carrier an additional statement from Dr. Langevin which indicated that the appellee was still under his care; and on January 17, 1974, Mr. Henthorne wrote a letter to the secretary of the Commission with copy to attorney Blair, as follows:

“Concerning your letter of January 4, 1973 and our conversation of January 14, 1974, please be advised that the above captioned case has been accepted as a compensable workmen’s compensation claim from the beginning and has not been controverted for any reason. We have been working with attorney David Blair for quite some time now and will continue to do so until the claimant has been released by his physician.
Should you have any questions concerning this matter, please correspond with me at my address in Jonesboro. ”

On January 22, 1974, Mr. Blair wrote a letter to Mr. Henthorne as follows:

“I had a call today from Frank Sosa, telling me that he had not received any compensation benefits since a check for $207.00 which he received in December.
Mr. Sosa was injured on July 23, 1973. He has been disabled by that injury since that time and is entitled to Workmen’s Compensation benefits at the rate of $63.00 per week. According to my calculations he is entitled to approximately $1,266.00 temporary total disability benefits but he has only received $330.00.
Incidentally, Mr. Sosa is continuing to see Dr. Langevin in West Plains.
I am also informed by Mr. Sosa that he is having a rather desperate time in getting by due to a lack of income.
Therefore, I must request either that his benefits be paid up to date or that this matter be set immediately for hearing, and by copy of this letter I am making that request upon the Commission.”

On February 6, 1974, Mr. Blair sent another statement from Dr. Langevin to Mr. Henthorne and on the same date Mr. Henthorne wrote a letter to Mr. Blair with copy to the Commission and to the appellee. This letter was as follows:

“In reference to the above captioned matter, we received an A-8 from our insured on July 27, 1973, indicating one week’s disability on the part of the claimant. Dr. Carhart was the attending physician at that time. Due to the fact that there seemed to be no lost time in the excess of one week, no temporary total benefits would be payable. I mentioned that we received this-A-8 on July 27, 1973, but actually that was the date on the form, our Little Rock office not receiving the form until August 6, 1973. I then received a letter from the Workmen’s Compensation Commission enclosing an A-7 you had filed and I called you on August 15, 1973 to discuss the matter. You then advised me that although Dr. Carhart had indicated that claimant could return to work, he was not able to so you sent him to Dr. Langevin in West Plains, Missouri. You also told me you would get a report from him and forward it to me. At this point, there was no medical at all to substantiate that the claimant was unable to work, and on August 22, 1973 I received your letter of August 20, 1973 along with the report from Dr. Langevin indicating that he had seen the claimant once, August 9, 1973. On this very date, I sent a temporary total draft to the claimant in the amount of $126.00 for the priod of July 24, 1973 to August 7, 1973 and dictated the letter to the Workmen’s Compensation Commission advising them that the claim had been accepted as compensable. I heard no more from you or Dr. Langevin by September 29, 1973, so I called you and you said that you had heard nothing from them either and would try to get in touch with one or both parties and give me an up-to-date medical report. On September 25, 1973 I wrote Dr. Langevin requesting the medical and his bill. His report of October 2, 1973 stated that he had only seen Mr. Sosa twice since his initial report, these visits being on August 23 and August 30, 1973, and he assumed that he had not returned because he was well. Your letter to me dated October 4 1973 indicated that you had interpreted Dr. Langevin’s letter as meaning that Sosa had reached the end of his he 'ling period on August 30, 1973, and that we should pay temporary total benefits to that time and close out the claim. We agree to this, and benefits were subsequently paid out and finals sent. Since that time, there has been additional correspondence from you demanding that we pick up temporary total benefit payments where they were last left off and bring them up to date. Abo, you had filed another A-7 with the Commission prior to writing me.
I have been in Batesville on two different occasions since this correspondence began again but have not been able to reach you. As we have previously accepted this claim as being compensable, we will quite naturally continue to give full consideration to the possibility that additional temporary total is due. However, you can see that there is a definite question as to how much temporary total we owe in addition to what has previously been paid. All I have at this time [is] Dr. Langevin’s letter to you indicating that he had not seen Mr. Sosa since August, assuming he was well, and that he suddenly walks in on November, 1973 with a swollen leg. I am ^tempting to obtain the necessary medical from Dr. L ngevin and would appreciate any reports that you might have received from him.
I see no reason that we cannot work this matter out among ourselves, and if you would care to bring this claim to a conclusion on that basis, please feel free to get in touch with me at my office in Jonesboro. I intend to be in Batesville again next week and will attempt to contact you at that time to see how you want to handle the matter. ”

On February 11, 1974, Mr. Blair answered Mr. Henthorne’s letter as follows:

“I am on this date writing to Dr. Langevin asking him for a report clarifying the questions raised in your recent letter. As soon as I receive it I will forward it to you. You have Mr. Sosa’s address and if you want to take a statement from him verifying his disability from this injury you certainly have my permission to do so, and if there is any further information I am able to furnish you please let me know.
I anticipate that we will be able to resolve this matter without a hearing but I think we should go ahead and get the hearing scheduled in the event we are unable to do so. Mr. Sosa has been out of work since last summer and is in a pretty tough position.”

On February 13, 1974, Dr. Langevin reported to Mr. Blair that the appellee still had swelling in his leg when he did not use support, but that it would probably be 18 to 24 months before it could be determined whether there was any permanent disability. Dr. Langevin reported that he thought riding heavy equipment would be out as far as the appellee was concerned, but that he should be able to do work that did not require prolonged standing.

On February 14, 1974, Mr. Blair wrote a letter to Mr. Henthorne with copy to the Commission and to the claimant authorizing Mr. Henthorne to contact the claimant direct and take a recorded statement from him. Apparently Mr. Henthorne did contact the appellee and apparently had him examined at the Ozark Orthopedic Clinic in Harrison because under date of August 2, 1974, Dr. Charles Ledbetter reported to the compensation carrier that he found, on examination of Mr. Sosa on that date, in part as follows:

“The impression is: 1. Resolved subperiosteal hematoma, left proximal tibia. 2. History of thrombophlebitis, left. 3. Peroneal muscle hernia, left. It is my impression that this man’s disability would be less than 5%.”

Under date of September 4, 1974, the claimant’s supervisor for the compensation carrier wrote a letter to Mr. Sosa with copy to the attorneys and the Compensation Commission as follows:

“This letter concerns your workmen’s compensation claim arising on July 23, 1973 while employed by Horseshoe Bend Builders. We are in receipt of a report of Dr. Charles Ledbetter of August 2, 1974 concerning his examination and evaluation of that date. Such report shows that you are released from treatment and that permanent partial disability resulting from the accident and injuries in question would be less than 5% to the body as a whole. We are accepting this rating of 5% to the body and will make payment of permanent partial disability on that basis.
Enclosed please find our draft in the amount of $252.00 representing permanent partial disability benefits for the period of August 2, 1974 to August 3.0, 1974. Beginning September 27, 1974 we will issue our draft every four weeks in the amount of $252.00 until a total of 22.5 weeks of benefits have been paid.”

This letter apparently referred to payments for a five per cent loss of use of the leg and not to temporary total disability.

At the hearing before the referee on April 26, 1974, it was stipulated that the employer-employee-carrier relationship existed on July 23, 1973, when the claimant did sustain a compensable injury, and that the claimant had been paid some temporary total disability and medical benefits.

It was the contention of the claimant that he had been totally disabled from July 23, 1973; that he was still totally disabled and would continue to be totally disabled and require medical treatment for 12 to 24 months in the future. The claimant then contended that the claim had been controverted but this was denied by the compensation carrier. The attorney for the compensation carrier stated as follows:

“Your Honor, we have never controverted the compensability of the claim or any temporary total disability which has been substantiated by any medical reports or any evidence furnished by the claimant. The last medical report that we had available indicated as of August 30, 1973, the claimant had not been back to see the doctor that was treating him and on the basis of that report, Travelers terminated the temporary disability as of that date. Subsequently they learned the claimant had not returned to work and we made some efforts to substantiate that with additional medical reports and had some discussions with the claimant’s attorneys and we’ve never been able to establish with any degree of certainty how much time the claimant missed or whether or not it was related to the injury, so we’re here today to — we really don’t intend to controvert any period of temporary total disability that the claimant has had since the accident if it’s substantiated by the medical reports or it’s been a time when he’s actually been employed since the accident.”

It was then agreed that correspondence between the attorneys and claims representative, in relation to the claim, would be submitted in evidence.

It is certainly apparent from the record in this case that the matter was handled in a careless or dilatory manner from its inception but it is difficult to tell who was most at fault.

Mr. Sosa apparently sustained a herniated muscle in his left leg resulting in a blood clot attended by intermittent swelling and pain. It would appear from his testimony that he never did return to his former employment following his injury but sought other employment, and sought medical attention and additional legal advice from his attorney only when his leg would swell. He testified in part as follows:

“Q. Did you try to work, did you try to go back to your job at Horseshoe Bend after August 30?
A. I didn’t think I wanted to go back to carpentry any more.
Q. Did you ever go back out there and talk to them about trying to do any more work?
A. I haven’t seen anyone.
Q. You’ve just never been back since the day you got hurt?
A. That’s right.
Q. You’ve made no effort to return to work out there?
A. No sir.
Q. What was the reason for your trip to St. Louis?
A. Visiting, I’d never been there.”

There was some evidence that the appellee did attempt to contact the compensation carrier’s representative by telephone but was unable to do so, and there was also evidence that the insurance representative attempted to contact the appellee and was unable to do so. The appellee admitted receiving one or two letters from the insurance carrier’s representative requesting a meeting for the purpose of discussing his condition. He said he probably received such letter dated March 6 (respondent’s exhibit 3) but then he said: “I was selling property, I couldn’t get away, he called and I couldn’t break away.” The appellee said that he never did submit any of his medical bills to the compensation insurance carrier. He said he remembered seeing Dr. Langevin on August 30, 1973, when the doctor aspirated some blood from the clot on his leg. He said he was fitted with an elastic stocking and that as long as he kept it on, his leg did not swell, but when the stocking came down or he removed it, the leg would swell again and become painful. He said he went to Dr. Langevin a little over a month and then went to St. Louis with some friends to visit. He said that while in St. Louis he applied for unemployment compensation which was denied; that he then worked three days pushing a lawn mower cutting grass in St. Louis and that when his leg began to swell again, he returned to Arkansas. He said he attempted to find work when he returned to Arkansas and did obtain a job operating a backhoe, but that after working six days his leg swelled again and he had to quit. He said that when his leg would swell, he would return to Dr. Langevin.

The Commission found, as did the referee, that the appellee was temporarily disabled from July 23, 1973, through August 2, 1974, and there is no appeal from the award of compensation based on that finding. The referee found that the claim had not been controverted but the full Commission concluded that it had been. The full Commission was rather critical of the manner in which the appellants serviced this claim and we are unable to say some criticism was not justified. The Commission stated that there was no suggestion that the employer filed the required “Employer’s First Report of Injury,” or that compensation was paid within the statutory time limit of 15 days; that following Dr. Charles Ledbetter’s anatomical impairment rating in his report of August 2, 1974, payment of accrued compensation in the amount of $252 covering the first four weeks of compensation due as a result of the physician’s rating was not issued to the appellee until September 4, 1974. The Commission then recited from a letter by the carrier indicating that future payments would be made every four weeks in the amount of $252 until a total of 22.5 weeks of benefits had been paid. The Commission stated that this was in violation of Ark. Stat. Ann. § 81-1319 (b) (Repl. I960) which provides for the payment of compensation benefits every two weeks. In its statement oT the case the Commission stated, “Claimant further revealed he had worked a total of six days since July 23, 1973.” The Commission apparently overlooked the additional three days the claimant said he worked while in St. Louis, Missouri.

It is apparent from the overall record that following the appellee’s initial injury he contacted his attorney before or about, the time his first compensation would have been due. The attorney sent the appellee to a physician of his and the appellee’s choice who made most of his reports to the appellee’s attorney, who would forward the reports and medical bills to the compensation carrier. The record does not reveal the nature of the requests for medical reports made by the appellee’s attorney or the compensation carrier, but none of the medical reports say that the appellee was unable to work. It is apparent that the appellee’s doctor, his attorney, and the compensation carrier thought the appellee’s healing period ended on August 30, 1973. The appellee was apparently paid through that date and the claim considered closed by all parties concerned until the appellee’s leg swelled and became painful and he returned to the doctor on December 11, 1973. We are of the opinion that the appellant carrier was entitled to some evidence, medical or otherwise, that the appellee was again experiencing temporary total disability because of his injury before resuming compensation payments.

The appellant-carrier may have been dilatory, even to the point of negligence, in its follow up on the appellee’s injury and any wage loss occasioned thereby, but the carrier attempted to deal through the appellee’s attorney who apparently was having some difficulty in keeping in touch with the appellee and keeping abreast of his condition. In any event dilatory payments of compensation does not amount to a controversion perse. Ark. Stat. Ann. § 81-1319 (Repl. 1960) provides the time and manner for making workmen’s compensation payments and subsection (d) of § 81-1319 provides as follows:

“Each employer desiring to controvert the right to compensation shall file with the Commission, on or before the fifteenth (15th) day following notice of the alleged injury or death, a statement on a form prescribed by the Commission that the right to compensation is controverted on the grounds therefor, the names of the claimant, employer, and carrier, if any, and the date and place of the alleged injury or death. Failure to file such statement of controversion shall not preclude the urging of any defense to the claim subsequently filed, nor shall the filing of a statement of controversion preclude the urging of additional defenses to those contained in such statement of controversion.”

Subsections (e) and (f) provide for penalties for failure to make timely payments and subsection (i) provides for investigations to be made by the Commission upon its own initiative.

Ark. Stat. Ann. § 81-1332 (Repl. 1960) provides in part as follows:

“Whenevér the Commission finds that a claim has been controverted, in whole or in part, the Commission shall direct that fees for legal services be paid by the employer or carrier in addition to compensation awarded, and such fees shall be allowed only on the amount of compensation controverted and awarded. Whenever the Commission finds a claim has not been controverted, but further finds that bona fide legal services have been rendered in respect to the claim, then the Commission shall direct the payment of such fees out of the compensation awarded.”

The mere failure of an employer or compensation carrier to pay compensation benefits to an injured employee does not in and of itself amount to a controversion. Especially is this true when the compensation insurance carrier accepts the injury as compensable and it and the claimant’s attorney are attempting to determine the periods and extent of the claimant’s disability.

In Pike Cty. Poultry Co. v. Kelly, 243 Ark. 460, 420 S.W. 2d 523, cited by the appellee, it was not denied that part of the claim was controverted. In that case we pointed out the appellee’s testimony that after November 29, 1965, she went to her doctor for treatment several times because she was suffering with her back; that she was not able to work and was still disabled. We then recited some of the medical findings supporting the claimant’s contention and then in that case we said:

“It is not denied that the above testimony (and more of the same purport) was controverted by appellant.”
The appellee in the case at bar says:
“In view of the action, or inaction of Appellant, clearly the services of any attorney were reasonably required by Appellee in order to secure his compensation benefits. Since a hearing was required to determine Appellee’s claim, it is difficult to perceive how Appellant can now content the claim was [not] controverted. Under the circumstances of this case Appellee was justified in employing counsel, and this expense should be left where the Commission placed it. ” Citing Pike Cty. Poultry Co. v. Kelly, supra.

The appellee was injured on July 23, 1973. He was not entitled to payment of compensation in any event until August 7, 1973. His attorney arranged for his examination by Dr. Langevin on August 9, 1973, so it would appear that he was represented by employed counsel from the very beginning in this case. We do not say that all controversions must be on forms prescribed by the Commission, and we do not overrule anything we said in Littlejohn v. Earle Industries, 239 Ark. 439, 389 S.W. 2d 898, cited by the appellee in his trial brief. The distinguishing language in that case is set out as follows:

“The appellant was injured on June 18, 1963. His attorney properly filed his claim with the Commission shortly thereafter. The appellees then requested a thirty-day extension before stating their position on controverting the claim. Over appellant’s objection, a ten-day extension was granted. On September 23, 1963, the appellees stated they ‘neither admitted nor denied that the claimant was entitled to compensation.’ The appellees later offered to pay compensation to the claimant on the basis of 10% disability conditioned upon an order of final discharge by the Commission since the claim appeared ‘suspicious.’ The appellant responded by asserting the evaluation of permanent disability was premature since appellant maintained that he was unable to return to work on October 6, 1963, despite his own medical reports. The claimant steadfastly protested that he had not fully recovered from his back injury and an operation on August 24th to correct this injury.”

The initial burden, of course, rests upon the claimant in any case to make out a claim for compensation. When the claim is once accepted by the respondent as compensable, the burden rests upon the respondent to make compensation payments and continue them during the continuation of the disability. We are of the opinion that the difficulty in this case boils down to a claimant who was difficult to find and keep up with; an attorney who was, perhaps, too busy to go hunting for his client; a doctor who never reported as to whether his patient was or was not disabled to work; and, a compensation carrier, perhaps understaffed and overworked, who depended on the appellee’s attorney more than on the initiative of its own claims staff in seeking out the claimant and servicing his claim by prompt payment or controversion. In the case at bar the appellant-respondent may have been guilty of undue delay in payment, but we are of the opinion that the appellee-claimant’s right to compensation was not controverted within the meaning of the Act under the evidence in this case.

The judgment is reversed and this case is remanded to the circuit court with directions to remand to the Commission for a determination on attorney’s fee not inconsistent with this opinion.

Reversed and remanded.

      Apparently consisting of herniated muscle or muscle sheath in the left leg resulting in a release of blood and formation of a blood clot.

      Apparently the reimbursement check to attorney Blair was made payable to him and his client.

      Apparently the A-8 report which the employer sent to the carrier was never filed with the Commission.


author: Frank Holt, Justice.

text:
    WHITE RIVER SAND AND GRAVEL REMOVAL COMMISSION and Richard R. HEATH, Director of Arkansas Dept. of Finance and Administration v. HAYES BROTHERS LAND AND TIMBER COMPANY, Inc.
    75-239
    532 S.W. 2d 191
    Opinion delivered February 9, 1976

      Jim Guy Tucker, Atty. Gen., by: Michael G. Epley, Asst. Atty. Gen., for appellants.

      Murphy & Blair, by: H. David Blair, for appellee.
   Frank Holt, Justice.

Act 232 of 1971 (Ark. Stat. Ann. § 41-4422 [Supp. 1975]) applies only to the removal of sand and gravel from a limited portion of the White Rivet-. Appellee, a riparian landowner, filed an application for a permit to remove sand and gravel from that part of the river. The commission, created by this act, denied the application. The trial court found on appeal that Act 232 is local legislation and, therefore, unconstitutional by virtue of Amendment 14, Arkansas Constitution (1874). Appellants assert the act is valid and, therefore, the trial court erred. We hold the issue is moot because Act 524 of 1975 repeals by implication Act 232 of 1971.

We have consistently held that when the legislature, by a later act, covers anew the whole subject matter embraced in any former act, then the later act repeals by implication any previous act on that subject. King v. McDowel, 107 Ark. 381, 155 S.W. 501 (1913); Western Union Telegraph Company v. State, 82 Ark. 302, 101 S.W. 745 (1907); and Pulaski County v. Downer, 10 Ark. 588 (1850). In the case at bar it is apparent from reading the two acts that the legislature intended for Act 524 of 1975 to cover the entire subject anew and be a substitute for Act 232 of 1971.

The purpose of the 1971 act is to control the removal of sand and gravel from the bed of a described part of the White River, a navigable stream, to create a commission to promulgate regulations and designate those areas from which the sand and gravel may be removed. The commission was directed to give consideration to local needs for building and construction, the effect of the removal of sand and gravel upon fish and the preservation of the river as a tourist attraction. The commission consists of the Director of what is now the Department of Parks and Tourism, the Director of the Game and Fish Commission and the State Revenue Commissioner. The act vests in the Commissioner of Revenues the power to issue franchises for the removal of sand and gravel from the limited area of the river in accordance with rules promulgated by that commission.

The 1975 act is entitled:

An act to vest in the Department of Commerce the authority and responsibility for granting leases and permits for taking sand and gravel, minerals, and timber from state-owned lands; to establish the Natural Resources Committee and to prescribe its functions and duties; to provide for appropriate investigation and supervision of the activities of such leaseholders and permittees on state-owned lands; and for other purposes.

Section 1 prohibits the removal of “any sand and gravel **** from the beds or bars of navigable rivers and lakes in this State. ...” without a lease or permit issued by the Department of Commerce after application to that agency. Section 2 creates “The Natural Resources Committee” which is composed of the “Director of the Department of Commerce, the Director of the Oil and Gas Commission, the State Geologist, the Director of the Forestry Commission, and the Director of the Soil and Water Conservation Commission, with the Director of the Department of Commerce as Chairman.” Section 3 provides that upon application for a lease or permit with the Director of the Department of Commerce for the removal of sand and gravel, he must notify, in addition to members of the Resources Committee, other state agencies; namely, the Game and Fish Commission, the Department of Parks and Tourism, the Department of Pollution Control and Ecology, “or any other appropriate State agency which has or may have a particular interest in the area proposed to be covered by the lease or permit, and any such interested agency shall have an opportunity to investigate the proposed production or taking of sand, gravel” and then to “report its findings and recommendations to the Department of Commerce regarding the same, including any recommendations for conditions or limitations to be imposed on the lessee with respect to the production of sand, gravel, **** under such lease or permit.” This section further authorizes the Department of Commerce to deny or grant a permit or lease for the removal of sand and gravel under such conditions and requirements as it deems appropriate for the best interests of the state.- However, the written consent of a state agency must be secured where it owns or has an interest in any property. Section 13 provides:

It is the purpose and intent of this Act to charge the Department of Commerce with the authority and responsibility for considering applications for and granting leases and permits for the taking of sand, gravel **** from the beds and bars of navigable rivers and lakes in this State **** and to supervise activities on state-owned lands by lease-holders and permittees. (Emphasis added.)

The language of Act 524 of 1975 is unmistakably clear that the legislature intended to cover anew and exclusively the subject of the removal of sand and gravel from our navigable streams and substitute the 1975 act (consisting of fifteen sections) for the 1971 act (consisting of six sections), by doing so, it appears the intention of the legislature was to create a uniform system for the removal of sand and gravel from the beds of all the navigable streams instead of a limited portion of one (the 1971 act) in our state.

Appeal moot.


author: Elsijane T. Roy, Justice.

text:
    Arthur R. DOWNS v. STATE of Arkansas
    CR 75-174
    532 S.W. 2d 427
    Opinion delivered February 9, 1976
    [Rehearing denied March 8, 1976.]

      Harold L. Hall, Public Defender, by: Michael Castleman, Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Walter W. Nixon III, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

On October 23, 1973, an individual identifying himself as “Art” called the Narcotics Division of the Little Rock Police Department on its unlisted number and asked Undercover Detective Horace Walters if he were the person interested in buying some heroin. Walters responded affirmatively, met appellant Arthur Downs and a $2600 purchase price was discussed.

On October 26, 1973, appellant called again, and Walters went to meet him at the Union 76 Truck Stop on Interstate 40. While there Walters purchased a small, tinfoil wrapped sample of heroin from appellant for $15.00.

Walters and appellant agreed to meet later at the Razorback Drive-In in Little Rock, which they did. While there appellant removed a box from the trunk of his car, and he and Walters drove to a nearby parking lot where police officers were secreted. Upon a signal from Walters the officers converged on Walters and appellant, arresting both of them. The box containing what appeared to be heroin was removed from the hood of the car, tagged and later taken to the Arkansas State Health Department for analysis. Subsequent analysis on the contents proved positive for heroin, as had analysis earlier performed on the smaller sample. Appellant Downs was charged with one count each of possession and sale of heroin, tried by the court, found guilty and sentenced to concurrent 20 year terms on each count.

As error appellant urges that the State failed to properly connect him with the evidence used to charge him with both possession and sale of heroin. On appellate review we consider only that evidence most favorable to the appellee and affirm if there is any substantial evidence. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974).

With regard to the charge of possession of heroin, appellant contends that no testimony was given at trial identifying the substance as having been in his possession or as being the same substance taken from the automobile at the time of his arrest; further, that the officers handling the heroin did not establish an unbroken chain of custody as is necessary before the evidence is properly admissible. Appellant assigns practically identical arguments to the charge of sale of heroin.

Detective Walters, who purchased the tinfoil package of heroin, gave it property tag number 803 and personally placed it in the narcotics safe. Later at trial he specifically identified it as being the same substance he had purchased earlier.

Officer Ron Thompson testified that at approximately 3 p.m. on October 26, 1973, he transported evidence with property tag number 803 to the State Laboratory and turned it over to Don Wise, a chemist for the State Department of Health, who signed for it.

Chemist Don Wise testified that at 3 p.m. on October 26, 1973, he received from Officer Thompson a two and a half by four inch manila envelope containing a tinfoil package of brown powder and bearing property tag number 803. Wise assigned the package sample number 02042 and chemically analyzed the sample, obtaining a positive test for heroin. Wise then produced the package in court, identified and described it and testified that it contained the powder he had tested. The evidence was then introduced as State Exhibit No. 1.

Appellant has produced no testimony or other evidence to even suggest that the package purchased from defendant by Detective Walters was tampered with in any way.

As to State’s Exhibit No. 2, Detective Walters testified that he saw appellant take a box from his car, which he later saw at the parking lot, and he again saw the same shotgun shell box at police headquarters.

Lieutenant Walter E. Simpson testified as follows:

A. The shotgun shell box, which did contain the narcotics, what was later determined to be a narcotic substance, heroin, was on the hood as I came. Mr. Downs was there along with Officer Walters. We all hit at the same time, and I grabbed the box which did contain the shotgun shells on top, and underneath there was some balloon type item which did contain the powdery substance.

Lieutenant Simpson further testified that after the arrest and seizure of the evidence he and Detective Jerry Royster wrote a tag sheet giving it tag number 808. Then Simpson and Royster attached the tag to the substance and placed it in the narcotics safe.

Detective Royster confirmed in every detail the testimony of Lieutenant Simpson relating to transporting the evidence from the scene of the arrest to the Police Department, tagging it with number 808, placing it in a manila envelope, and storing it in the narcotics safe.

Detective Richard Fulks testified that on November 6, 1973, at 1:30 p.m., he transported the evidence stored under property tag number 808 to the Arkansas State Health Department and turned it over to Chemist Charles T. Bounds for chemical analysis and that the evidence was assigned lab sample number 02101 by Bounds.

Bounds testified that he received the envelope with property tag 808 attached from Detective Fulks at 1:30 p.m. on November 6, 1973, and that the sample number 02101 was then assigned to the package. He further testified that the envelope contained a sealed rubber balloon and a brownish gray powdery material, which he later determined contained heroin. Bounds then positively identified the package, which he had with him in court, as the same that had been delivered to him by Detective Fulks and analyzed by him.

As to appellant’s speculative assertion that the evidence could have been tampered with, in Fight v. State, 254 Ark. 927, 497 S.W. 2d 262 (1973), we stated:

The purpose of the chain of identification is to prevent the introduction of evidence which is not authentic.

In Wickliffe and Scott v. State, 258 Ark. 544, 527 S.W. 2d 640, (1975), we said:

In West v. United States, 359 F. 2d 50, 55 (8th Circ. 1966), cert. den. 385 U.S. 867 (1966), the court said: “Appellant seems to be arguing that as long as it was conceivable that the evidence could have been tampered with, it should not have been admitted. This, however, is not the law. The government need not exclude all possibilities of tampering. The Court need only be satisfied that in reasonable probability the article had not been changed in important respects.”

This issue also has been discussed in Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975); Freeman v. State, 238 Ark. 804, 385 S.W. 2d 156 (1964); and Rogers v. State, 258 Ark. 314, 524 S.W. 2d 227 (1975).

We have not held here, nor in earlier cases, that appellant’s failure to substantiate the contention of tampering per se renders the evidence admissible. It is but one factor to be weighed with others in passing on the authenticity of the evidence. However, the instant appeal contains ample proof of the complete chain of custody and of the authenticity of the evidence admitted.

Affirmed.


author: George Rose Smith, Justice.

text:
    CALVERT FIRE INSURANCE COMPANY v. Gerald FRANCIS et al
    75-316
    532 S.W. 2d 429
    Opinion delivered February 17, 1976

      Matthews, Purtle, Osterloh & Weber, by: Gail O. Matthews and Roy Gene Sanders, for appellant.

      Hardin & Rickard, by: Gurtis E. Rickard, for appellees.
   George Rose Smith, Justice.

In 1973 the plaintiff, Gerald Francis, a dealer in travel trailers and campers, sustained a fire loss of $27,085.64. Two insurers, Calvert Fire Insurance Company and Lloyd’s of London, had issued policies covering the damaged property. Calvert paid $14,-046.61 of the loss, as its asserted pro rata share, and contended that Lloyd’s was liable for the remaining $13,039.03. Lloyd’s admits liability for only $150, the value of a used unit not insured by Calvert’s policy.

Francis brought this action for a declaratory judgment to determine which insurer is liable for the $12,989.03 still at issue. There is no real dispute about the facts. The trial court held, without specifying its reasons, that Calvert is liable. Lloyd’s presents two arguments in support of the trial court’s decision.

First, Lloyd’s argues that the situation is the same as that presented in Ark. Grain Corp. v. Lloyd’s, 240 Ark. 750, 402 S.W. 2d 118 (1966). There one policy had a “pro rata” clause, limiting that insurer to its proportionate part of the total loss if there was other insurance on the property. The second policy had an “excess” clause, limiting that insurer to liability only for the excess remaining after any other insurance had been paid in full. We sustained the second insurer’s contention that it suffered no liability, because the face amount of the pro rata policy exceeded the total loss.

That situation, however, does not obtain here. Calvert’s basic policy does contain a pro rata clause. But a rider, incorporated in the original policy and issued at the same time, contains an excess clause that supersedes the pro rata clause, because the rider provides that it is subject to all terms of the basic policy not inconsistent with the rider. Here there is an inconsistency; so the rider governs. Lloyd’s does not dispute the general rule that where each of two policies contains an excess clause, the clauses are considered to be mutually repugnant and ineffective. Appleman, Insurance Law & Practice, § 3912 (rev. ed., 1972); Couch on Insurance 2d, § 62:79 (1966). That leaves proportionate liability between the two insurers as the common-sense solution, for otherwise the insured might have no protection even though he paid for two policies.

Secondly, Lloyd’s insists that its policy covers only Francis’s equity in the damaged trailers and campers, over and above an indebtedness financed by Commercial Credit Corporation and secured by a floor-plan arrangement with that creditor. Lloyd’s policy, however, makes no reference whatever to its insured’s equity in the property. To the contrary, it simply insures the vehicles in question in the amount of $25,000, which is more than twelve times the $1,956.06 equity that Francis had in the property. In fact, the only proof tending to support Lloyd’s argument is Gerald Francis’s testimony that he purchased the Lloyd’s policy because he thought that the Calvert policy covered only the amount that was being financed by Commercial Credit under the floor plan. It goes without saying that the insured’s subjective intent in obtaining the Lloyd’s policy does not change the plain language of that contract.

The judgment is reversed and the cause remanded for the entry of a declaratory judgment holding Lloyd’s liable for $13,039.03, with interest, the statutory 12% penalty, and a $2,500 attorney’s fee.