author: Darrell Hickman, Justice. John I. Purtle, Justice, Robert H. Dudley, Justice,

text:
    Shirley DUVALL, Administratrix of the Estate of Ricky Duvall v. MASSACHUSETTS INDEMNITY AND LIFE INSURANCE COMPANY
    87-288
    748 S.W.2d 650
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988
    [Rehearing denied June 6, 1988.]

      Young & Finley, for appellant.

      Gardner, Gardner & Hardin, by: Richard E. Gardner, Jr., for appellee.

      Purtle, J., would grant rehearing.

   Darrell Hickman, Justice.

The legal question in this case is whether or not Ricky Duvall’s death was accidental. He was a 26 year old pulpwood cutter. After going to work on November 5, 1983, he was found lying on the ground. He was taken to a nearby hospital where he was declared dead. It is undisputed that the cause of death was Marfan’s syndrome, a congenital disease affecting the connective tissue of the body.

The appellee insurance company had an accidental death and injury policy on Duvall. The insurance company denied coverage and Duvall’s wife filed suit against the policy. The insurance company filed a motion for summary judgment, and the appellant also moved for summary judgment. The trial court found no substantial factual dispute and granted the motion for summary judgment in favor of the insurance company. We agree that the death was not accidental and affirm the judgment.

Appellant first argues that the trial court erred in granting summary judgment because the question of accidental death is a question of fact for the jury. The argument has no merit. Appellant and appellee agreed on all of the facts surrounding the insured’s death. During oral arguments to this court, appellant’s counsel conceded that no additional material facts could be developed at a trial on the matter. The construction and legal effect of a written contract are to be determined by the court as a question of law except where the meaning of the language depends upon disputed extrinsic evidence. Arkansas Rock & Gravel Co. v. Chris-T-Emulsion Co., 259 Ark. 807, 536 S.W.2d 724 (1976); C. & A. Constr. Co. v. Benning Const. Co., 256 Ark. 621, 509 S.W.2d 302 (1974).

There were no witnesses to Duvall’s collapse; we have only the undisputed testimony of Dr. Allan Rozzell, a board certified pathologist who performed an autopsy on Duvall. In his opinion, the strenuous work of woodcutting caused Duvall’s heart rate to increase and his blood pressure to rise, which in turn caused his aorta to rupture. According to Dr. Rozzell, the cause of Duvall’s death was Marfan’s syndrome.

Once again we are faced with the difficult legal question of what is an “accidental” death or injury. Our experience has been similar to that of other courts, groping for a simple definition of accident, or accidental means, and deciding cases on the basis of facts. See Reid, Insurance Accident Policies “Accident or Accidental Means,” 10 Ark. L. Rev. 226 (1955-56); Eckert, Sickness and Accident Insurance, 11 Ark. L. Rev. 1 (1956-57); Annotation, Insurance: “accidental means” as distinguishable from “accident,” “accidentalresult,” “accidental death,” “accidental injury,” etc., 166 A.L.R. 469 (1947). We have held that “accident” and “accidental means” are synonymous. Travelers Ins. Co. v. Johnston, 204 Ark. 307, 162 S.W.2d 480 (1942).

Appleman, a leading authority on insurance law, discusses the subject at length and recognizes the difficulty courts have had in defining accident and accidental means. 1A J. Appleman & J. Appleman, Insurance Law and Practice § 360 (1981). First, he points out that the medical and legal definition of an accident differ:

From the point of view of the physician, anything which occurs suddenly may be considered an accident. Therefore, if a particle in a blood stream floats and lodges in a lung or in a coronary artery, that is an accident; the development of a thrombosis in place is not. The bursting of a blood vessel in the brain is a cerebral accident, an occlusion resulting from atherosclerosis or its inadequacy from arteriosclerosis is not. None of these things constitute a legal accident unless trauma causes the clot to float or acts upon a predisposing medical condition so as to produce disability or death.

Appleman also discusses the reasons for extended litigation on this question:

Since the ingenuity of attorneys, and the sympathies of courts, have made great strides into attempting to bring unexpected occurrence within the coverage of accident policies, insurers have resorted to stringent language to attempt to prevent overliberal results. That is why such terms as ‘external’ and ‘violent’ have come to have a place in such contracts, and why many insurers employ a phrase such as ‘accidental means’. The difficulty is that the companies have become entranced by the language they employ, extending it to situations not originally intended to be excluded, and unnecessary for the purpose of distinguishing between medical and legal causation or, in addition, to prevent fraudulent acts designed for the purpose of collecting policy benefits. With the companies reaching too far, and the courts desiring to narrow such constructions, there is a never ending contest apparent in litigation over such policies. If we bear in mind the legitimate purpose intended to be served both by the insuring agreements and the proper exceptions, the lines of demarcation can be drawn with some degree of fairness.

The appellant argues that according to our definition of accident, Duvall’s death was accidental and that she should recover under the policy. The policy language in this case reads:

The term ‘injury’ as used in this policy shall mean accidental bodily injuries from which loss results directly and independently of all other causes, provided such injuries are sustained by an Insured Person while this policy is in force with respect to such person.

The parties agree that this language is not ambiguous. In fact, the language in this policy is fairly typical policy language. See Hartford Life Ins. Co. v. Catterson, 247 Ark. 263, 445 S.W.2d 109 (1969). There is no doubt that we should interpret the policy by construing the words in a plain and ordinary manner. 1A J. Appleman & J. Appleman, Insurance Law and Practice § 360 (1981). We have adopted the generally accepted definition of the term “accident” or “accidental,” which is “something happening by chance, unexpectedly taking place, not according to the usual course of things, or not as expected.” See Continental Casualty Co. v. Bruden, 178 Ark. 683, 11 S.W.2d 493 (1928); Aetna Life Ins. Co. v. Little, 146 Ark. 70, 225 S.W. 298 (1920). Duvall argues that her husband’s death was sudden and unexpected and the result of strenuous work and therefore accidental. Not every death that is sudden or unexpected is an accidental death, as our cases and the authorities demonstrate. According to American Jurisprudence, the words “bodily injury” are commonly and ordinarily used to designate an injury caused by external violence, and not to indicate disease. 43 Am. Jur. 2d Insurance § 563 (1982).

In some cases the decision has been easy. In Hartford Life Ins. Co. v. Catterson, supra, we held that death from exposure was an accident. We compared it to death from heat prostration, which we held to be accidental in Continental Casualty Co. v. Bruden, supra.

But other cases reflect the difficulty we have had in dealing with the question. In Fidelity & Casualty Co. v. Myer, 106 Ark. 91, 152 S.W. 995 (1912), the insured was standing in a wagon when he was thrown backwards by the sudden and unexpected movement of the horse. A few days later he began hemorrhaging from the mouth and bowels, dying several weeks later. An autopsy revealed a tumerous growth on the pancreas. A jury verdict holding that Myer died of accidental means was upheld.

In Travelers Ins. Co. v. Johnston, supra, we upheld a jury finding that Johnston could recover under two accident policies. Johnston was seriously injured when he fell out of a taxicab. His left hip was broken and he became totally disabled. It was discovered that Johnston had Paget’s disease, a chronic degenerative condition of the bones. In support of our decision that his injury was accidental, we said:

So, here, we think the testimony warranted the giving of the instructions herein set out and the finding of the jury, based thereon, that appellee’s fall from the cab was an accident for the consequences of which the insurer was liable; and this is true although the jury might have found that appellee’s hip would not have been fractured if he had not been afflicted with Paget’s disease. However, the testimony of the surgeon who attended appellee is to the effect that a fall such as appellee sustained might have broken the hip even though appellee had not been afflicted with Paget’s disease.

In Metropolitan Casualty Ins. Co. v. Fairchild, 215 Ark. 416, 220 S.W.2d 803 (1949), the insured was disabled because of a heart attack. The doctor testified that it was caused by the unusual physical stress he was under at the time it occurred. We upheld an award by the judge, sitting as a jury, for a disabling body injury sustained through external, violent and accidental means, according to the language of the policy. We did point out that it was the doctor’s undisputed testimony that Fairchild did not suffer from heart disease before the accident.

In these and other decisions we have struggled with the question of whether the injury or death was caused by an accident or through accidental means. Justice Cardozo tried to set us straight on this question in his famous “Serbonian Bog” dissent in Landress v. Phoenix Mutual Life Ins. Co., 291 U.S. 491 (1934). The insured died from sunstroke while playing golf. The policy insured against death resulting from “external, violent and accidental means.” The court held that the result was accidental but the means producing it were not accidental. Dissenting, Justice Cardozo said:

The insured did not do anything which in its ordinary consequences was fraught with danger. The allegations of the complaint show that he was playing golf in the same conditions in which he had often played before. The heat was not extraordinary, the exertion not unusual. By misadventure or accident, an external force which had hitherto been beneficent, was transformed into a force of violence, as much so as a stroke of lightning. The opinion of the court concedes that death ‘from sunstroke, when resulting from voluntary exposure to the sun’s rays,’ is ‘an accident.’ Why? To be sure the death is not intentional, but that does not make it an ‘accident,’ as the word is commonly understood, any more than death from indigestion or pneumonia. If there was no accident in the means, there was none in the result, for the two were inseparable. No cause that reasonably can be styled an accident intervened between them. The process of causation was unbroken from exposure up to death. There was an accident throughout, or there was no accident at all.
Sunstroke, though it may be a disease according to the classification of physicians, is none the less an accident in the common speech of men.
When a man has died in such a way that his death is spoken of as an accident, he has died because of an accident, and hence by accidental means.
The attempted distinction between accidental results and accidental means will plunge this branch of the law into a Serbonian Bog. ‘Probably it is true to say that in the strictest sense and dealing with the region of physical nature there is no such thing as an accident.’ [cites omitted] On the other hand, the average man is convinced that there is, and so certainly is the man who takes out a policy of accident insurance. It is his reading of the policy that is to be accepted as our guide, with the help of the established rule that ambiguities and uncertainties are to be resolved against the company.

In this case, there was a disease and nothing out of the ordinary that intervened to cause Duvall’s death. It is undisputed that Duvall, while engaged in his regular employment, died from Marfan’s syndrome, a disease; therefore, his death was not accidental under the policy. The trial court was correct in granting summary judgment in favor of the insurance company.

Affirmed.

Purtle and Dudley, JJ., dissent.

John I. Purtle, Justice,

dissenting. I agree with the majority that there is no factual dispute in this case. However, I differ with the result reached by the opinion. I would reverse the trial court’s decision granting summary judgment to the appellee and direct the court to enter a summary judgment for the appellant.

Whether a death is accidental is ordinarily a jury question. However, the uncontradicted evidence in this case leads me to believe the trial court erred in granting the summary judgment to appellee rather than to the appellant.

I disagree with the majority interpretation of the testimony of Doctor Rozzell. The doctor first described Marfan’s Syndrome, a condition which Duvall had, as an inherited condition of which Duvall was not aware. The doctor explained that persons suffering from this condition should avoid doing things which elevate their blood pressure or increase the heartbeat. The doctor stated:

Mr. Duvall’s activity was directly related to his death because that is what initiated the rapid pulse and elevated blood pressure which sets the condition in motion. . . . The result [death] was totally unexpected. I think anybody would be an idiot to be out there chopping wood if he knew that he had Marfan’s Syndrome. Again, the thing which caused the death was the strenuous activity.

There is no other testimony on the cause of death.

It is somewhat a mystery to me why the majority made the decision to affirm when all of the cases cited in the majority opinion clearly require reversal. In Continental Casualty Co. v. Bruden, 178 Ark. 683, 11 S.W.2d 493 (1928), we held that death by heat prostration was an accidental death. In Hartford Ins. Co. v. Catterson, 247 Ark. 263, 445 S.W.2d 109 (1969), we held that death from exposure to cold weather was accidental. We cited Bruden as supporting precedent. In Fidelity and Casualty Co. v. Myer, 106 Ark. 91, 152 S.W. 995 (1912), the insured fell out of a wagon and died a few days later from a hemorrhage resulting from the rupture of a tumerous growth in the pancreas. This court upheld the jury verdict deciding that Myer died from accidental means.

A case almost on direct point with the case before us is Travelers Ins. Co. v. Johnston, 204 Ark. 307, 162 S.W.2d 480 (1942). Johnston had Paget’s disease which was not discovered until he fell out of a taxicab. Paget’s disease is a degenerative condition of the bones which renders them more susceptible to breakage from trauma. Johnston became disabled from his injury. The physician testified that a fall such as Johnston sustained might have broken his hip even though he was not affected by Paget’s disease. We upheld the jury finding that the disability was accidental.

The final authority cited in the majority opinion is Metropolitan Casualty Ins. Co. v. Fairchild, 215 Ark. 416, 220 S.W.2d 803 (1949). Fairchild became disabled because of a heart attack. The doctor testified the attack was caused by the unusual physical stress Fairchild was under at the time of the occurrence. We upheld the trial court’s finding that the heart attack which rendered Fairchild disabled was brought about through “external, violent and accidental means, according to the language of the policy.”

The only basis supporting the decision of the majority is the fifty-four year old “Serbonian Bog” dissent in Landress v. Phoenix Mutual Life Ins. Co., 131 U.S. 100 (1934). Ordinarily this court does not base its decisions upon dissents. So far as I am concerned the majority is no more persuasive than Justice Cardozo was in his dissent.

Therefore, I would reverse the trial court and direct that a judgment be entered in favor of the appellant.

Robert H. Dudley, Justice,

dissenting. I dissent from that part of the majority opinion which holds that the insured’s death was not accidental under the language of the insurance policy. The majority opinion is based upon the single idea that because the death was caused in part by a pre-existing disease, it could not be “accidental” under the policy. Such an approach not only oversimplifies the issue, but also is clearly wrong in light of previous cases decided by this Court.

The overwhelming majority of our cases dealing with accident insurance claims have been concerned with policy language which limited recovery to injuries brought about by “accidental means.” The term “accidental means” is not used in the policy at issue. It is important, however, to discuss the term in its historical context in order to understand the language in the policy before us. The term “accidental means” was almost universally used in accident insurance policies during the first half of the century. Eckert, Sickness and Accident Insurance, 11 Ark. L. Rev. 1 (1957). Judicial construction of the term “accidental means” resulted in a clear split of authority in various jurisdictions. Some courts refused to draw a distinction between loss due to “accidental means” and loss due to “accident,” holding that if the result was unusual, unforeseen, and unexpected, the requirement of “accidental means” was satisfied, as was that of simple “accident.” 1A J. Appleman & J. Appleman, Insurance Law and Practice § 360 (rev. ed. 1981). Other courts, however, took the approach that if the policy was written in terms of “accidental means,” then it was necessary that the acts or means themselves, rather than the result, be “accidental,” or “unexpected,” “unforeseen,” “not according to the usual course of events.” Id.

The rules enunciated in our Arkansas cases appear to fall in the latter category, with attention focused on the act rather than the result. Absolute certainty in categorizing our cases is difficult because in applying the law to the facts of some cases it seems that if the result, rather than the means, was unforeseen, we still allowed recovery. See, e.g., Union Life Ins. Co. v. Epperson, 221 Ark. 522, 254 S.W.2d 311 (1953). Metropolitan Casualty Ins. Co. v. Fairchild, 215 Ark. 416, 220 S.W.2d 803 (1949).

Apparently, we were not alone having difficulty in interpreting “accidental means,” and the insurance industry began to stop using the term.

The insurance industry has recognized that the “accidental means” clause, once universally used, has several disadvantages, and, therefore, since the 1940’s the trend is away from its use and toward the more liberal “accidental bodily injury” wording. According to a recent insurance publication, this trend is an attempt to build better public relations since the distinction is highly technical and not readily understood by the insuring public or even by courts. The writer parenthetically states that claims relation suffered from “accidental means” specifications, and furthermore the courts ignored the distinction anyway.

Eckert, supra, at 5 (footnote omitted).

Regardless of how we construed the term “accidental means” in the past, however, the language of the policy now before us does not employ that term. Rather, it uses the more liberal term “accidental bodily injuries”:

INJURY DEFINED AND SCOPE OF COVERAGE
The term “injury” as used in this policy shall mean accidental bodily injuries from which loss results directly and independently of all other causes, provided such injuries are sustained by an Insured Person while this policy is in force with respect to such person.

Thus, this Court is first presented with the question of whether the insured’s death falls within the policy language, “accidental bodily injury.” In'my opinion, it does. The language of an insurance contract must be construed according to the ordinary understanding and common usage of people generally. 10 G. Couch, Cyclopedia of Insurance Law § 41:8 (rev. ed. 1982); 43 Am. Jur. 2d Insurance § 559 (1982). “Generally, accident policies should be so interpreted that provisions of the policies effectuate the reasonable expectations of the purchaser. An average person buying a personal accident policy assumes that he is covered for any fortuitous and undesigned injury.” 1A J. Appleman & J. Appleman, supra, § 360.

In applying the law to the facts now before us, the rupture of the insured’s aorta was the “bodily injury.” In addition, the terms “accident” and “accidental” have never acquired a technical meaning in the law. 10 G. Couch, supra, § 41:8; 43 Am. Jur. 2d, supra, § 559. Courts have almost universally construed the terms to mean something unforeseen, unexpected, fortuitous, unusual; something which does not occur in the usual course of things; an event such as would not reasonably be anticipated by a person situated as the one to whom the event occurred. See generally 1A J. Appleman & J. Appleman, supra, § 360; 10 G. Couch, supra, §§ 41:8-9; 43 Am. Jur. 2d, supra, § 559.

Our own cases, in discussing “accidental means,” have defined “accidental” as happening by chance; unexpectedly taking place; not according to the usual course of things; or not as expected. E.g., Continental Casualty Co. v. Bruden, 178 Ark. 683, 11 S.W.2d 493 (1928). Further, “[i]n construing whether or not a certain result is accidental, it is customary to look at the casualty from the point of view of the insured, to see whether or not, from his point of view, it was unexpected, unusual, and unforeseen.” 1A J. Appleman & J. Appleman, supra, § 360. Under these circumstances, the rupture of the aorta, caused by the physical exertion of the job, and the resulting death were completely unexpected and unforeseen by the insured. Therefore, his death falls clearly within the policy language, “accidental bodily injury.”

The next question confronting this Court under the language in this policy is whether the “loss result [ed] directly and independently of all other causes.” Again, I have no difficulty in finding that it did. However, the majority opinion, in reaching its result, completely ignores a long line of Arkansas precedent.

It is unquestioned that an insurer has the right to limit or restrict the coverage of its policy. It is also true, however, that an insurer is charged with the knowledge of how certain language has been judicially construed within the jurisdiction where the policy is issued. See Clay County Cotton Co. v. Home Life Ins. Co., 113 F.2d 856 (1940); 1A J. Appleman & J. Appleman, supra, § 360. Arkansas has a rather long line of cases, dating back to 1912, in which we have consistently held that

[w]hen an accident insurance policy limits liability to “bodily injuries sustained through accidental means resulting directly, independently and exclusively of all other causes of death,” and it appears that death resulted from an aggravation of a latent disease to which the deceased was subject, an instruction is correct to the effect that the defendant insurance company is liable, under the contract, if death resulted when it did on account of the aggravation of the disease from the accidental injury, even though death from the disease might have resulted at a later period, regardless of the injury.

Union Life Ins. Co. v. Epperson, 221 Ark. at 525, 254 S.W.2d at 313 (emphasis added). “In other words, if death would not have occurred when it did but for the injury' resulting from the accident, it was the direct, independent and exclusive cause of death at that time, even though the death was hastened by the diseased condition.” Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 96, 152 S.W. 995, 997 (1912); see also Metropolitan Casualty Ins. Co. v. Fairchild, 215 Ark. 416, 220 S.W.2d 803 (1949); National Life & Accident Ins. Co. v. Shibley, 192 Ark. 53, 90 S.W.2d 766 (1936). Dr. Rozzell testified in his deposition that the strenuous activity of the insured’s job was directly related to his death because it initiated the rapid pulse and the elevated blood pressure, setting in motion the rupture of the aorta. Clearly, the insured’s death resulted when it did on account of the aggravation of a latent disease to which he was subject.

In summary, our case law on the policy language before us is in favor of the insured and against the insurance company. Yet, the majority rules in favor of the insurance company and against the insured. Such a ruling is doubly unfair. Obviously, it does not follow our precedent, and more importantly, it rewrites an insurance policy in favor of the insurance company which originally wrote the policy. I dissent.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    SUNLAND ENTERPRISES, INC., et al. v. Thomas E. McGUCKIN, et al.
    87-359
    749 S.W.2d 304
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Vaughan & Bamburg, by: Keith Vaughan, for appellant.

      William C. Frye, for appellee.
   Darrell Hickman, Justice.

This is an appeal of a trespass case tried to a jury. The appellees sued Bob Tasler and Sunland Enterprises, Inc., for trespass for digging a ditch across his residential lot, damaging the land and trees. The appellees bought this lot from Sunland, which is a company owned by Tasler and his wife. The jury returned a verdict for the appellees for almost $5,000. We affirm.

On appeal, five issues are raised; all are meritless.

The motion for a directed verdict filed by the appellants was properly denied. The argument is made that the proper measure of damages is either the value of the damaged timber or the difference between the market value of the land before and after the trespass. The record reflects that the appellants made no such argument at trial. Further, there was sufficient evidence of damages to support the verdict in the testimony of a landscaper, who viewed the premises and gave his opinion that the damages were $4,935. See Foran v. Ford, 279 Ark. 121, 649 S.W.2d 177 (1983).

The appellants filed a flurry of post trial motions: a motion for judgment n.o.v., a motion for a new trial, and a motion to reduce the judgment. The appellants have failed to demonstrate that the trial court was wrong in denying the motions.

No objection was made during the trial to submitting the issue of Bob Tasler’s individual liability to the jury. There was substantial evidence that the appellants committed the trespass. Furthermore, as already stated, there was sufficient evidence of damages to support the jury’s verdict. A trial court may grant a judgment n.o.v. only if there is no substantial evidence to support the verdict. Sullivan v. Employers Equitable Life Ins. Co., 287 Ark. 310, 698 S.W.2d 510 (1985). Thus, the trial court did not abuse its discretion in refusing to set aside the verdict.

We find no basis for overruling the court’s denial of a new trial on any of the five grounds asserted by appellants. The granting of a new trial is left to the sound discretion of the trial court and its decision will not be reversed unless there is an abuse of that discretion. Smith v. Villarreal, 253 Ark. 482, 486 S.W.2d 671 (1972). We have no basis for finding that the trial court abused its discretion or committed error in this regard.

The appellants have failed to demonstrate any reason or cite any authority for overruling the judge’s denial of the motion to reduce the judgment. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 605 (1977).

Finally, appellants argue that the trial court erred in not giving a proper instruction to the jury on the measure of damages. We find that no objection was made to the instruction given, nor was a proper instruction offered by appellants, so any argument on appeal is pointless. ARCP Rule 51.

In summary, the jury found against the appellants, and the trial was fair and free of error.

Affirmed.

Purtle, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Ben GRIMES, Jr. v. STATE of Arkansas
    CR 87-220
    748 S.W.2d 657
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Balm, Gunti, Mouser, DeSimone, & Robinson, by: Greg Robinson, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   Robert H. Dudley, Justice.

The appellant was convicted of first degree murder. On appeal, he argues that the evidence was insufficient to sustain the conviction. The argument is without merit, and we affirm the conviction.

Various witnesses established that the murder victim, Tondaleyo Hilton, had a date with appellant on May 30, 1986. That night they were seen together at different places in Pine Bluff. The victim did not return home and was never seen alive again. A little over two weeks later, on June 17, 1986, her body was found in the Arkansas River. The medical examiner found the cause of death was a five inch cut across the neck that was so deep it reached the spine. He did not find any semen in the victim’s body, but he testified that could have been because the body was in the river for two weeks and any semen could have been washed away. The appellant left the State after the victim’s disappearance but was found and arrested in Virginia Beach, Virginia, on July 24, 1986. He confessed to the murder at that time. He changed the details of his story several times but the final version was as follows: He and the victim were on a date and ended up in Townsend Park in Pine Bluff. While there, they got out of the car, and he forced her to have sexual intercourse with him twice. She told him she was going to tell her family or call the police. He panicked and cut her in the chest or neck area, although he was not sure how many times he stabbed her or to what extent. He then put her body into the trunk of the car, drove to the Arkansas River, threw her body into the river, and discarded her clothes into a dumpster.

The day after he gave the confession to the Virginia authorities, he gave a second confession to some Pine Bluff police officers. The second confession was consistent with the first one except that he said the murder took place inside rather than outside the car and that in her threat to expose him she did not mention the police but mentioned only her family.

“An accused’s confession, along with other evidence, is sufficient to support a conviction.” Fitzhugh v. State, 293 Ark. 315, 318, 737 S.W.2d 638, 640 (1987). This “other evidence” requirement is based on Ark. Code Ann. § 16-89-111(d) (1987), which provides, “A confession of a defendant, unless made in open court, will not warrant a conviction, unless accompanied with other proof that the offense was committed.” We have written, “The State need only prove, however, the crime was committed by someone.” McQueen v. State, 283 Ark. 232, 234, 675 S.W.2d 358, 360 (1984).In this case, there is no question that the victim was killed; her body was found in the Arkansas River and the evidence showed that her throat had been slit. In addition, the last time she was seen alive was when she was on a date with appellant. There was sufficient evidence to support the verdict.

Appellant next argues that some of the state’s evidence contradicts his confessions, and therefore, the confessions are not corroborated; from that basis, he argues the evidence is insufficient to support the verdict. The argument is without merit for two reasons. First, his initial conclusion is fallacious. He contends that the medical examiner testified that the victim’s throat was cut while the appellant said he stabbed her in the neck and chest. In fact, in the confessions, appellant said he could not remember exactly how the knifing took place. Also, the failure of the medical examiner to find semen is understandable. Second, and more importantly, the-statute does not require that the confession be completely corroborated. It merely provides that there be other proof the offense was committed.

In compliance with Rule 11 (f) of the Rules of the Supreme Court and Court of Appeals, we have examined all of the objections which were decided adversely to appellant and find none that involve prejudicial error.

Affirmed.


text:
    Milton LUBIN, M.D. v. CRITTENDEN HOSPITAL ASSOCIATION, A Corporation, R.F. Scruggs, Hugh B. Chalmers, et al.
    87-355
    748 S.W.2d 663
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      N. Alan Lubin, and Fletcher Long, Jr., for appellant.

      James A. Johnson, Jr., John C. Deacon, and Gerald A. Coleman, for appellees.
   Robert H. Dudley, Justice.

Appellant, Milton Lubin, a medical doctor, has been a member of the medical staff of Crittenden Memorial Hospital in West Memphis since 1953. In 1980, complaints were made to hospital authorities about some of appellant’s comments made in the presence of nurses and other hospital employees. The hospital’s board of trustees notified appellant that a hearing would be held to determine if he had violated the by-laws of the hospital association. After a hearing the board placed appellant on unsupervised probation for one year with no restrictions on his hospital privileges. Appellant responded by filing a civil rights action in federal court against the hospital and its trustees alleging that the disciplinary action deprived him of due process. The federal district court held that the action of the hospital was a purely private action, not a state action, and 42 U.S.C. § 1983 did not afford a basis for federal subject matter jurisdiction. The Eighth Circuit Court of Appeals affirmed in Lubin v. Crittenden Hosp. Ass’n, 713 F.2d 414 (1983), cert. denied, 465 U.S. 1025 (1984). Appellant then filed this suit in state court. The trial court held the state action was not timely filed and dismissed the complaint. We reversed and remanded. Lubin v. Crittenden Memorial Hosp., 288 Ark. 370, 705 S.W.2d 872 (1986). Upon remand, the defendants, appellees, filed a motion for summary judgment with affidavits and supporting documents. The appellant filed a counter-affidavit. The trial court granted the summary judgment. We affirm.

The appellant argues that the complaint contains allegations that appellees denied him due process; that appellees entered into a civil conspiracy to harm his reputation as a medical doctor; that the hospital association breached a contract between the association and appellant; and that genuine issues of material fact remain to be decided on each count.

In Brandt v. St. Vincent Infirmary, 287 Ark. 431, 701 S.W.2d 103 (1985), we decided that a private hospital, in an internal administrative proceeding, is not subject to the reasonableness standards of the equal protection clause and due process clause of the fourteenth amendment to the United States Constitution or under Ark. Const, art. 2, §§ 2 and 3. The appellee hospital is a private hospital. Lubin v. Crittenden Hosp. Ass’n, 713 F.2d 414 (8th Cir. 1983), cert. denied, 465 U.S. 1025 (1984). Thus, it was not necessary for the appellees to afford the appellant due process in deciding whether to discipline him. The due process allegation of the complaint therefore could not state a claim for relief, and this is a valid basis for granting summary judgment. Joey Brown Interest, Inc. v. Merchants Nat’l Bank, 284 Ark. 418, 683 S.W.2d 601 (1985). The trial court ruled correctly in granting summary judgment on this count of the complaint.

In the argument section of his brief the appellant does not favor us with the specific reason he contends the trial court erred in ruling that the appellees were entitled to a summary judgment on the count involving the alleged conspiracy. He only gives us general conclusions.

The complaint on the point, as abstracted by appellant is as follows:

Appellant, Milton Lubin, filed his Complaint at Law (T.01-09) alleging the following:
A. Civil conspiracy between Appellee to injury his professional reputation and damage to his medical practice by misuse of hospital By-Laws and disciplinary procedure to attempt to discipline him.

The appellees denied this allegation in their answer. In appellant’s deposition, which was attached to appellee’s motion for summary judgment as a supporting document, the appellant admitted that he had no evidence of conspiracy against eight of the board members. In affidavits also attached to the motion as a supporting document, five of the appellees state that they did not conspire with anyone to harm the appellant. In his counter-affidavit, the appellant did not go forward and meet the above proof with proof of his own. Instead, he again denied the allegations and termed them conclusory. He further affirmed “that his investigation had now revealed evidence which confirms his allegations of conspiracy,” but he did not state what his investigation consisted of, what new proof he had, or what the conspiracy was. Our summary judgment rule requires that an affidavit in response to a motion for summary judgment be made on personal knowledge and set forth specific facts showing there is a genuine issue for trial. Hughes Western World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980). Here, there was no positive statement based upon personal knowledge to show that the appellees attempted to do an unlawful act, or achieve some unlawful purpose through a series of lawful acts.

Finally, the appellant complains that the trial court dismissed the count alleging breach of contract. The count is abstracted by appellant as follows: “His contract with Crittenden Hospital was tortiously breached by the actions of the Appellees.” The appellees argued, and the trial court apparently agreed that the above count was an allegation based upon the by-laws of the hospital association. Appellant does not favor us with a specific statement about the basis of the count, and we can only assume that the trial court’s assessment of the complaint was correct since, in his counter-affidavit the appellant stated the bylaws were not followed.

The appellees attached supporting documents indicating compliance with the by-laws. The appellant, in his counter-affidavit stated the by-laws were not complied with, but did not state specifically how the appellees failed to comply with the bylaws. Again, there was no positive statement based upon personal knowledge to show that appellees breached an implied contract which was created by the by-laws.

In brief, ARCP Rule 5 6 (e) provides that when a motion for summary judgment is made and supported by affidavits and other documents, the adverse party may not rest upon mere allegations or denials of the pleadings, but must set forth specific facts showing that there is a genuine issue for trial.

Affirmed.


author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Christine SWOFFORD and Harold Swofford v. Mark STAFFORD and Bobby Ward
    87-325
    748 S.W.2d 660
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      John Wesley Hall, Jr., for appellant.

      Mark Stodola, City Att’y, by: Victra L. Fewell, Asst. City Att’y, for appellee Mark Stafford; Jim Hamilton and Francis D. Crumpler, Jr., by: Francis D. Crumpler, Jr., for appellee Bobby Ward.
   Robert H. Dudley, Justice.

In 1984, in a prior case, the appellant, through other counsel, filed a replevin action against the appellees and the Cities of Little Rock and North Little Rock. The complaint alleged that in 1984 appellees Stafford and Ward “arrested plaintiffs and transported them to the North Little Rock Police Department and placed them in jail and proceeded to interrogate them and to insist upon searching plaintiffs’ residence premises.” The appellants sought the recovery of the property seized and damages for the wrongful detention of the property. The trial court found that the appellees and the two cities had no right, title, or interest in the property and ordered it delivered to appellants. The order of delivery neither awarded damages nor reserved the issue of damages for future determination. At a later date the trial court, apparently on its own motion under Rule 10 of the Rules of Circuit and Chancery Courts, entered an order of dismissal for failure to prosecute. Still later, in 1987, with present counsel, the appellants filed the case at bar against the appellees. They restate, with more particularity, the circumstances surrounding their 1984 arrest, detention, and interrogation. In addition, appellants aver that appellees Stafford and Ward acted to cause a second and third arrest of appellant Harold Swofford on related charges. They seek damages against the two appellee police officers under 42 U.S.C. § 1983 and under state law for false arrest and illegal search, malicious prosecution, and intentional infliction of emotional distress. The trial court held that the prior action precludes the claim in this action. We affirm that holding.

The claim preclusion part of the doctrine of res judicata bars relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based upon proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involve the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involve the same parties or their privies. Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 916 (1985). Appellants argue on appeal that the trial court erred because factors numbered (1) and (4), a final order and same cause of action, are not present. The arguments are without merit.

Appellants first argue that the claim in the case at bar should not be precluded because there was no final judgment in the first suit. Appellants’ abstract does not reflect that this issue was raised below or ruled upon by the trial court. We will not consider issues raised for the first time on appeal. Griffin-Payne, Inc. v. Union Bank, 289 Ark. 182, 710 S.W.2d 201 (1986). Accordingly, we do not consider this point of appeal.

Appellants’ next point is that the facts and issues between the two cases are different and that the trial court erred in applying the doctrine of claim preclusion. The trial court ruled correctly.

The complaint in the replevin action recited the operative facts of the arrest of the appellants, their transportation to and interrogation at the North Little Rock Police Department, their incarceration, and the search of their home. The case at bar is based on the same events and subject matter. It only raises new legal issues and seeks additional remedies.

Issues and remedies raised in the subsequent suit do not have to be identical to those raised in the initial suit in order for the claim preclusion part of res judicata to apply. In Benedict v. Arbor Acres Farm, Inc., 265 Ark. 574, 577, 579 S.W.2d 605, 607 (1979), we wrote:

The law of res judicata provides that a prior decree bars a subsequent suit when the subsequent cause involves the same subject matters as that determined or which could have been determined in the former suit between the same parties; the bar extends to those questions of law and fact which “might [well] have been but were not presented.”

In Taggart v. Moore, 292 Ark. 168, 171, 729 S.W.2d 7, 9 (1987) (citations omitted), we wrote:

One of the main purposes of the doctrine of res judicata is to put an end to litigation by precluding a party who has had the opportunity for one fair trial from drawing the same controversy into issue a second time before the same or a different court. . . . Res judicata applies even if the issue was not litigated in the first trial if it should have been included in the former trial.

Accordingly, we affirm the ruling of the trial court that the case at bar is barred by the claim preclusion part of the doctrine of res judicata. Because we affirm the ruling of the trial court on this point, we need not discuss the other point of appeal, which concerns an alternative reason to dismiss this case.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I think the majority is wrong in ruling that the doctrine of res judicata bars this lawsuit and that the issue concerning a final order is not properly before this court. Res judicata precludes parties from drawing the same controversy into issue a second time. However, the doctrine applies only if there is a final judgment after a hearing on the merits. The general rule in Arkansas is that before a judgment is final and appealable the order must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Corning Bank v. Delta Rice Mills, Inc., 281 Ark. 342, 663 S.W.2d 737 (1984). There was no final judgment in this case.

The first action between the parties was a replevin action. The circuit court dismissed this action for a failure to prosecute. The appellants and appellees both agree that a dismissal for want of prosecution is not a final judgment. The majority, however, relies on the claim preclusion doctrine as barring any further litigation between these parties. The claim preclusion doctrine is the heart of res judicata. There can be no claim preclusion without res judicata, and there can be no res judicata without a final judgment. As this court stated in Fawcett v. Rhyne, 187 Ark. 940, 63 S.W.2d 349 (1933):

The doctrine of res judicata does not rest upon the fact that a particular proposition has been affirmed and denied in the pleadings, but upon the fact that it has been fully and fairly investigated and tried — that the parties have had an adequate opportunity to say and prove all that they can in relation to it, that the minds of court and jury have been brought to bear upon it, and so it has been solemnly and finally adjudicated. [Citation omitted.]
If a particular point was not in issue in the suit — either in the technical sense of an issue framed by the pleadings, or in the sense of being the decisive question in the case and the one actually litigated and determining the result — it is not conclusively established by the judgment therein, for the purposes of a subsequent suit upon a different cause of action .... [Citation omitted.]

It is clear that the civil rights and tort claims raised by the present action were not at issue in the replevin action.

The former action brought by the appellants was to recover certain items of personal property seized by the appellees. The question of damages in the replevin action was never resolved. The case was dismissed without a final judgment. Without a final judgment in the replevin action the doctrine of res judicata simply does not apply. The majority applies the claim preclusion doctrine of res judicata, and yet it is clear that all of the necessary factors to invoke the doctrine are not present. It is undisputed that there is no final judgment in the replevin action. Without a final judgment, there can be no claim preclusion.

The doctrine of res judicata applies only when there has been a final judgment. The majority relies upon Bailey v. Harris Break Fire Protection Dist., 287 Ark. 268, 697 S.W.2d 1916 (1985), for the five (5) factors necessary to invoke the claim preclusion doctrine. However, the very first requirement for claim preclusion is missing in the present case. All parties agree there has never been a judgment on the merits in the original suit. Why this court cannot accept that fact is beyond my comprehension.

Whether the appellants specifically argued in the trial court that there is no final judgment should not control the outcome of this litigation because the application of the doctrine of res judicata is undeniably what this appeal is all about. The question of a final judgment is simply one factor to be considered in the resolution of the ultimate issue — whether res judicata bars the present action.

The conclusions reached by the majority are supported neither by the law nor the facts. Therefore, I would reverse and send this case back for a trial on the merits.


author: Robert H. Dudley, Justice. Steele Hays, Justice,

text:
    Josie WEBB v. Jean LAMBERT, Individually and as Surviving Heir of Charles Lambert
    87-256
    748 S.W.2d 658
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988
    [Rehearing denied June 6, 1988.]

      Grisham A. Phillips, for appellant.

      C. Scott Clark, for appellee.

       Hays, J., would grant rehearing.

   Robert H. Dudley, Justice.

The defendant did not file an answer within 20 days following service of summons, but, instead, filed an answer on the 28th day. The defendant did not offer any evidence of excusable neglect, unavoidable casualty, or other just cause for the late answer, but, even so, the trial court refused to grant a default judgment. We reverse and remand.

The plaintiff filed suit, and the defendant was personally served on October 29, 1985. The defendant, a resident of Arkansas, employed an attorney who mailed an answer to the plaintiff’s attorney on November 15, 1985, which was within 20 days of the date of service. The plaintiff’s attorney quite naturally assumed that the answer had been filed with the clerk of the court, but, in fact, the defendant’s attorney had not filed an answer with the clerk, and did not do so until November 26, 1985, which was 28 days after service. The defendant’s attorney did not disclose the late filing to the plaintiff’s attorney. On May 14, 1987, just before the trial was scheduled to begin, the plaintiff’s attorney examined the court file and found the out-of-date answer. He immediately moved to strike the answer and also moved for a default judgment. Still before the trial began, the Chancellor had a hearing on both of the motions. At that hearing, the defendant did not offer any evidence of excusable neglect, unavoidable casualty, or other just cause. The Chancellor took the motions under advisement and went ahead with the trial. Later, the Chancellor denied the motion to strike the answer, denied the motion for a default judgment, and ruled against the plaintiff on the merits of this equitable lien case. The plaintiff appeals from the trial court’s refusal to strike the answer and enter a default judgment.

Under ARCP Rule 12(a), a resident defendant is required to file an answer within 20 days of the date of service. To “file” an answer means that the answer “shall be filed with the clerk of the court” Rule 5(c), or with the judge, Rule 5(d). Neither was done. Upon failure of a resident defendant to file an answer within 20 days the court “shall” grant a default judgment under Rule 55(a), unless there is excusable neglect, unavoidable casualty, or other just cause as provided in Rule 6(b). In the absence of excusable neglect, unavoidable casualty, or other just cause, it is an abuse of discretion for the trial judge to refuse to grant a default judgment. DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982). Here, there was no showing of excusable neglect, unavoidable casualty, or other just cause. Therefore, the trial court abused its discretion in refusing to strike the answer and in refusing to grant the default judgment.

We reverse and remand for proceedings consistent with this opinion.

Holt, C.J., Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. In reversing this case the majority views it from the narrow perspective of ARCP Rule 12(a), requiring that an answer be filed within twenty days after service, and from the absence of any evidence that the eight day delay in filing the original answer was attributable to excusable neglect, unavoidable casualty or other just cause. But the situation presented is more complex than that and because I believe the trial court ruled correctly, I respectfully dissent.

The majority observes that counsel for the appellee did not disclose to opposing counsel that the answer was filed late, which suggests that counsel was knowledgeable of that fact. While that may be an accurate assumption, it is an assumption nonetheless. As the record tells us nothing either way, and since lawyers often leave such routine tasks to others, counsel for appellee may not have been aware of when the original pleading was actually filed. It is clear that that unknown factor had no bearing on the trial court’s decision and by our own rules this court should not draw an inference from a silent record which is adverse to the appellee.

The majority relies entirely on the case of DeClerk v. Tribble, 276 Ark. 316, 637 S.W.2d 526 (1982), where we held, correctly I think, that it was not excusable neglect where counsel dictated an answer within the twenty days, but after it was prepared a secretary laid it aside where it stayed unnoticed until four days after the due date. We pointed out if such carelessness were excusable, then responsibility for timely filing of pleadings could be easily shifted from the attorney to his staff. That case bears little resemblance to the case before us.

Here, the copy of the answer was mailed to opposing counsel and received within the twenty days. Thereafter the case proceeded routinely for eighteen months during which the appellant served interrogatories on the appellee, obtained one continuance, agreed to another continuance requested by appellee, and not until the very hour of trial did counsel for appellant raise any issue over the belated filing of the answer.

Certainly ARCP Rule 5(c) is relevant, but other considerations are equally relevant. Even Rule 5(c) suggests that where an answer is served upon opposing counsel within time, the filing of the original with the clerk may occur within a reasonable time. The rule states that “all papers after the complaint shall be filed with the clerk either before service or within a reasonable time thereafter.

But other rules offer greater sanction. Rule 55(a) provides that when a party has failed to appear “or otherwise defend,” judgment by default shall be entered by the court. Section (b) provides that if the party has appeared in the action, “he” shall be served with written notice of the application for default judgment “at least three days prior to a hearing on such application.”

In this case, appellee obviously did not fail to appear or otherwise defend, nor was appellee served with written notice or even oral notice three days prior to a hearing on the default judgment motion. In such circumstances, where the issue is not raised until the hour of trial, I believe the trial court’s discretion is clearly paramount and we have recognized that fact in cases with less merit than this one. Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984) Burns v.Shamrock Club, 271 Ark. 572, 609 S.W.2d 55 (1980), where we said:

It is within the sound discretion of the trial court to grant or deny a motion to set aside a default judgment, and the question on appeal is whether there has been an abuse of that discretion. Default judgments are not favorites of the law and should be avoided when possible. [Citations omitted.]

Moreover, in Cammack v. Chalmers, we pointed out that Ark. Stat. Ann. § 27-1160 (Repl. 1979), incorporated in ARCP Rule 61, provides:

The court must in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party, and no judgment shall be revised or affected by reason of such error or defect.

We have held that a party who does not object to a late answer before trial has waived an objection. St. Louis & So. Ry. Co. v. Faist & Co., 99 Ark. 61, 137 S.W. 815(1911); Updegraff v. Marked Tree Lumber Company, 83 Ark. 154, 103 S.W. 606 (1907). We have also said repeatedly that default judgments are not favored by the courts and should be avoided when possible. Tapp v. Fowler, 291 Ark. 309, 724 S.W.2d 176 (1987); A.O. Smith Harvester Products, Inc. v. Burnside, 282 Ark. 27, 665 S.W.2d 288 (1984).

I would affirm the trial court.

Holt, C.J., and Glaze, J., join this dissent.


author: Steele Hays, Justice.

text:
    HOLIDAY ISLAND SUBURBAN IMPROVEMENT DISTRICT #1 of Carroll County, Arkansas v. Carolyn WILLIAMS, Tax Assessor, Carroll County, Arkansas, et al.
    88-61
    749 S.W.2d 314
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Kenneth H. Castleberry, for appellant.

      Terri L. Harris, Deputy Prosecuting Att’y, for appellees.
   Steele Hays, Justice.

The issue is whether the facilities of the Holiday Island Suburban Improvement District are exempted from general property taxes under Article 16 of the Arkansas Constitution. The trial court held that while some of the facilities were exempt, some were not, and the District has appealed from the adverse ruling. There is no.cross-appeal. We affirm the decree.

The District, Holiday Island Improvement District No. 1 of Carroll County, Arkansas, was formed in 1970 pursuant to Ark. Code Ann. §§ 14-92-201 et seq. (1987) [Ark. Stat. Ann. §§ 20-701 et seq. (Supp. 198 5)]. The District issued bonds to construct a water system, sewage treatment plant, roads and recreational facilities. In 1970 the developer of the project, MCO Properties, transferred to the District the ownership of golf courses, tennis courts, and other recreational facilities, as well as buffer zones and an administration building formerly used as a sales office.

In 1985 appellee Carroll Williams, Tax Assessor of Carroll County, placed the District’s real property on the tax rolls of the county. The District sued for a declaratory judgment that its property was exempt from taxation. The chancellor held the district was a government entity and that its fire stations, water system, sewage treatment plant, and administration building were exempt but its two golf courses, boat dock, maintenance shop, recreational center and camp grounds were not, because they were not used exclusively for public purposes. The District argues on appeal that the chancellor erred in ruling that the facilities were not exempt under Article 16, § 5(b) of the Arkansas Constitution. The provision reads in part:

The following property shall be exempt from taxation: public property used exclusively for public purposes . . .

The District points out that the appellee informed the trial court she considered these facilities to be taxable because the District was not a governmental entity whereas the chancellor reached a contrary decision on that issue, but held certain of the facilities were not used exclusively for public purposes. We need not decide whether the facilities of this suburban improvement district constitute “public property” within the meaning of Article 16, because it is clear the other part of the equation— “used exclusively for public purpose” — is lacking. The chancellor so found and we agree. While that issue was mildly disputed below, in that the District attempted to prove the facilities were available to the public, there was persuasive evidence that the facilities were restricted to property owners of Holiday Island, membership being conditional on owning property in the District. We cannot say the chancellor’s finding that the facilities were not used exclusively for public purposes was clearly against the preponderance of the evidence. ARCP Rule 52(a). In fact, he could hardly have held otherwise in view of the proof that signs were prominently displayed declaring “Property Owners Only” and “Members and Guests Only.”

The District maintains there are 4,000 owners of lots in the improvement district residing in all fifty states and these individuals, and not just the general public, should be regarded as “the public”; that anyone can become eligible by purchasing property in the District. We are unwilling to adopt that interpretation. The requirement that someone make a substantial investment in real property before becoming eligible to use “public” facilities, whether they be a park, a zoo, a golf course, campgrounds, or otherwise, is foreign to the generally accepted concept of “public” usage. We do not regard the price of a lot, whatever it may be, in Holiday Island subdivision as the equivalent of reasonable fees to help defray the cost of public facilities. Moreover, when the remaining lots are sold even that option will be removed and eligibility will be restricted to a fixed membership.

While we find authority for the view that reasonable fees may be charged for use by the public, Yoes v. City of Ft. Smith, 207 Ark. 694, 182 S.W.2d 683 (1944), and that reasonable classifications of persons can be established, Hogue v. Housing Authority of North Little Rock, 201 Ark. 263, 144 S.W.2d 49 (1940), the law almost uniformly is to the effect that a “public purpose” contemplates that the use must be common to all and not to a particular group. See Lott v. City of Orlando, 142 Fla. 338, 196 So. 313 (1940); United Community Services v. Omaha National Bank, 162 Neb. 786, 77 N.W.2d 576 (1956); United States v. 120,000 Acres of Land, 50 F. Supp. 754 (D.C. Texas 1943 Platte Valley Public Power & Irrigation Districts. Lincoln County, 144 Neb. 584, 14 N.W.2d 202 (1944); Briggs v. City of Raleigh, 195 N.C. 223, 141 S.E. 597 (1928); City of Jefferson v. Smith, 348 Mo. 554, 154 S.W.2d 101 (1941). While we find no case of our own squarely on point, dictum in two opinions involving public purpose notes that the facilities in those cases were available to the general public. In City of Hope v. Dodson, 166 Ark. 236, 266 S.W.2d 68 (1924), we reversed a lower court ruling that a fairground on land belonging to the City of Hope was not exempt under Article 16 § 5, noting the park was available to the general public. Similarly, in Yoes v. City of Ft. Smith, supra, we rejected a challenge to the public purpose of recreational facilities belonging to Ft. Smith, observing that the facilities were “open to the public at large.”

The District has provided us with no authority, and our own research has uncovered none, holding that the use of property may be restricted to certain members of the public and still retain a “public purpose” exemption from taxation. Public housing may be an exception, in that usage is generally restricted to individuals earning below a certain median income (See Hogue v. Housing Authority of North Little Rock, supra), but that situation is readily distinguishable for reasons that are self-evident.

The District contends there is a distinction between a public use and a public purpose, proposing that the Article 16 exemption rests not upon usage by the public but upon a public purpose as that term is used in connection with tax exempt revenue bonds. The District submits that “retirement” is an industry and Holiday Island promotes employment and other economic benefits to northern Arkansas. No doubt that is true, and if the issue here were tax exemption for the income from improvement district bonds, the public purpose requirement might be satisfied. But that is not the issue and it is clear the phrase “public purpose” is not an exact term, susceptible of a static definition [City of Glendale v. White, 67 Ariz. 231, 194 P.2d 435 (1948)], but has various shades depending on whether the context is eminent domain, revenue bonds, lending the credit of a political subdivision, or tax exemption under § 5(b) of Article 16. Thus, our decision here deals only with a public purpose within the context of Article 16 § 5(b).

Just as it is clear that ad valorem taxes could not be lawfully imposed upon the general public to maintain the cost of construction or maintenance of facilities used for private purposes, we can conceive of no valid reason why facilities restricted to private use should be exempted from the payment of taxes assessed against other properties of a similar character.

AFFIRMED.


author: David Newbern, Justice. Steele Hays, Justice, Tom Glaze, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Honorable Lee A. MUNSON, Chancellor
    87-323
    749 S.W.2d 317
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Thomas B, Keys and Philip N. Gowen, for appellant.

      Mike Wilson and Kenneth C. Coffelt, for appellee.
   David Newbern, Justice.

The petitioner, Arkansas State Highway Commission, closed a road crossing a four-lane highway. The road which was closed was known as Coffelt Road. It connected two parcels of land owned by Mr. and Mrs. Kenneth Coffelt. The value to the Coffelts of the crossing became the subject of litigation. In a condemnation proceeding, Mrs. Coffelt was awarded $40,000. That judgment was reversed and remanded for a new trial. Coffelt v. Arkansas State Highway Commission, 285 Ark. 314, 686 S.W.2d 786 (1985). The jury in the second trial returned a verdict in favor of Mrs. Coffelt but awarded her no damages. The commission had deposited $25,000 in the registry of the court as estimated compensation which had been drawn down by Mrs. Coffelt. Thus the court entered a judgment against Mrs. Coffelt and in favor of the commission for the deposit amount plus interest. The record showed that there was a motion to set aside the judgment on the ground, among others, that it amounted to an unconstitutional taking of Mrs. Coffelt’s property without compensation. The trial court denied the motion. That judgment was affirmed. Coffelt v. Arkansas Highway Commission, 289 Ark. 348, 712 S.W.2d 283 (1986), cert. denied, 107 S. Ct. 1298 (1987). The case before us now has come about because Mr. and Mrs. Coffelt have obtained a temporary stay of execution to prevent collection of the judgment in favor of the commission. The commission seeks a writ of prohibition to prevent the chancellor proceeding further in the matter claiming that jurisdiction is lacking because the Coffelts’ claim is barred by res judicata and their remedy at law. We deny the writ because we do not find that the chancellor lacks jurisdiction.

1. Res judicata

Res judicata is an affirmative defense. Ark. R. Civ. P. 8(c). The petitioner has presented no case in which it has been held that the bar of res judicata is “jurisdictional” and thus that a writ of prohibition should be entered because the doctrine may apply. We know of no such case.

2. Adequate remedy at law

The commission argues that there was an adequate remedy at law. It is true that Mrs. Coffelt had the right to, and indeed did, raise her constitutional argument in the circuit court. However the contention made to the chancellor is that the circuit court’s order is void. The petitioner’s brief does not deny that the chancery court has the power to enjoin enforcement of a void order. Rather, it cites Anthony & Brodie v. Shannon, 8 Ark. 52 (1847), and Watkins v. Merchants’ Bank of Vandervoort, 96 Ark. 465, 132 S.W. 218 (1910), which were cases in which we held, on appeal rather than in response to a request for a writ of prohibition, that the chancery court lacked jurisdiction to interfere in the execution of judgments reached by courts of law where there was an adequate remedy at law. In neither case was there an allegation made that the order of the circuit court was void.

A void order is subject to collateral attack, Sanders v. Killebrew, 233 Ark. 965, 349 S.W.2d 808 (1961); Bragg v. Thompson, 177 Ark. 870, 9 S.W.2d 24 (1928), and a court of equity, acting in personam, may enjoin enforcement of the order of even another “superior” court. Sanders v. Killebrew, supra; American Ins. Co. v. McGehee Liquor Co., 113 Ark. 486, 169 S.W. 251 (1914). We have, however, said that equity will not enjoin the enforcement of an order merely because it is void in cases where the party seeking equitable relief had an adequate remedy at law. Fuller v. Townsly-Myrick Dry Goods Co., 58 Ark. 314, 24 S.W. 635 (1893); Wingfield v. McLure, 48 Ark. 510, 3 S.W. 439 (1886). In those cases, however, the chancery court first determined its own jurisdiction, and our resolution of the issue came on appeal rather than in response to a request for a writ of prohibition. We have been cited to no case in which it has been held that a writ of prohibition should issue to a chancery court because it is proceeding in a matter where there is an adequate remedy at law.

The Coffelts argue they have exhausted their remedies at law by seeking relief in the circuit court, appealing to this court, and seeking certiorari in the United States Supreme Court to no avail. They contend there is no other thing they can do before a law court to seek relief from the order they contend is void. The answer to this contention may well be that the matter is thus res judicata, as even constitutional issues may be precluded by that doctrine. Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371 (1940). See Johnson v. Muelberger, 340 U.S. 581 (1951). As noted above, however, the question of res judicata is a defense to be raised in the chancery court and does not present a question of jurisdiction.

Writ denied.

Hickman, J., not participating.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. The respondent chancellor enjoined the sheriff from efforts to execute a judgment of the Pulaski Circuit Court against Mrs. Bessie Coffelt. The majority declines to prohibit the chancellor from proceeding because Mrs. Coffelt has alleged that the circuit court judgment is void, thereby invoking the chancellor’s jurisdiction.

If this case were new to us and there was any doubt about the validity of the judgment, that might be the proper course. But this litigation and this court are no strangers to each other. It has now been before us five times: Arkansas State Highway Department v. Coffelt, 257 Ark. 770, 520 S.W.2d 294 (1975); Coffelt v. Arkansas State Highway Department, 285 Ark. 314, 686 S.W.2d 786 (1985); Arkansas State Highway Department v. Coffelt, 285 Ark. 431, 688 S.W.2d 282 (1985); Coffelt v. Arkansas State Highway Department, 289 Ark. 348, 712 S.W.2d 283 (1986) and Arkansas State Highway Department v. Munson, CR87-323.

It is fair to say we are thoroughly familiar with every aspect of this case. Mrs. Coffelt’s argument is that a taking of private property for public use without compensation violates the state and federal constitutions, therefore, a judgment which awards no damages is void on its face. Certainly this judgment is not void on its face and Mrs. Coffelt has advanced no argument as to why it would be void on other grounds.

I will not repeat the long involved history of the case, it’s all there in the cited opinions, except to note that Mrs. Coffelt acquired this property in 1955, a few months after the owners had bargained and sold a perpetual easement for the interstate highway. That conveyance purported to transfer the entire interest of the owners, reserving only the right of access to the frontage roads. Mrs. Coffelt acquired her fee expressly subject to the perpetual easement.

The first phase of this litigation determined that Mrs. Coffelt still owned the fee beneath the easement where Coffelt Road crossed the interstate. {Arkansas State Highway Department v. Coffelt, 257 Ark. 770, supra). In a later phase, that interest, arguably a theoretical one at best, was determined by a jury to have no value, resulting in the circuit court judgment now challenged. Mrs. Coffelt appealed and the judgment was affirmed (Coffelt v. Arkansas State Highway Department, 289 Ark. 348, supra), as the majority concedes. Rehearing was denied by this court and certiorari was denied by the United States Supreme Court. 107 S. Ct. 1298 (1987). Thus, the case has been decided along with all the issues now argued, as well as any that could have been argued, and res judicata applies.

Clearly, this dispute, having spanned two decades, has reached finality and nothing remains to be litigated. It should not be allowed to continue to no good purpose, purely for the sake of form. I respectfully suggest a writ of prohibition is warranted on the circumstances of this case, as it was in Fore v. Circuit Court of Izard County, 292 Ark. 13, 727 S.W.2d 840 (1987).

Glaze, J., joins this dissent.

Tom Glaze, Justice,

dissenting. I would grant the writ. This court has long recognized that a court has power over its own process. American Ins. Co. v. McGehee Liquor Co., 113 Ark. 486, 169 S.W. 251 (1914). Here, the Coffelts filed a motion in the circuit court requesting an order to stay execution on that court’s judgment. The court, exercising its continuing original jurisdiction, denied the Coffelts’ motion. Instead of appealing the circuit court’s ruling, contending the court’s judgment was void and its order was for naught, the Coffelts petitioned the chancery court, requesting the same relief that they were denied in the circuit action.

In my opinion, the chancery court has no power whatsoever to decide whether the circuit court should or should not allow process, viz., a writ of execution, to issue in connection with one of its judgments. The Coffelts’ remedy, if any, was one of appeal from the circuit court’s order, denying their request to stay any execution. This case has existed for over a decade, and while I admire the ingenious tenacity with which both sides have pursued their respective claims, this matter should eventually come to an end. The court’s decision today, I respectfully submit, is a wrong one and serves only to continue this lawsuit’s indeterminate existence.

Hays, J., joins this dissent.

       Mrs. Coffelt contended that the Highway Department promised to put an overpass at what later became known as Coffelt Road, but that issue was abandoned some years ago.


author: David Newbern, Justice. Steele Hays, Justice,

text:
    RIVERSIDE FURNITURE CORPORATION and Arkansas Best Corporation v. Floyd G. ROGERS, Circuit Judge
    87-361
    749 S.W.2d 664
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988
    [Rehearing denied June 6, 1988.]

      Harper, Young, Smith & Maurras, by: Tom Harper, Jr., for appellant.

      Frank W. Booth, for appellee.

       Hays, J., would grant rehearing.

   David Newbern, Justice.

Lannie R. Blasingame is employed by petitioner Riverside Furniture Corporation which is a subsidiary of the other petitioner, Arkansas Best Corporation. The petitioners contend that Blasingame has filed a complaint against them in Sebastian County Circuit Court of which the court lacks jurisdiction because jurisdiction resides exclusively in the Arkansas Workers’ Compensation Commission. We deny the petition because it is at best premature.

Blasingame suffered an admittedly compensable job-related knee injury in 1985 for which he received workers’ compensation benefits. He thereafter complained of a back injury and received benefits from Riverside’s group medical self-insurance coverage. Still later, he filed for further workers’ compensation benefits on the ground that the back injury stemmed from his earlier compensable injury. Riverside refused further medical insurance benefits on the ground that they were not available to Blasingame if his injury was job related. Riverside defended the workers’ compensation claim on the ground that Blasingame had an unauthorized change of physician and that the back injury was not job-related.

The petitioners have abstracted their responses to requests for admissions in which they admit that Blasingame’s back problems are not related to any on-the-job injury and that “[t]he workers’ compensation opinion . . . specifically found: ‘5. The claimant has failed to prove a causal relationship between any present back complaints he may have and his compensable injury.’ ”

Blasingame’s complaint alleged (1) fraud on the ground that the company handbook said he would be covered either by the group medical insurance or workers’ compensation for any injury or sickness occurring during his employment, (2) breach of contract based on the handbook provisions as well as the express promise of a Riverside employee that Blasingame would be covered by the medical insurance even though the other employee knew Blasingame thought his back problems were job-related, (3) intentional infliction of emotional distress for malicious withholding of medical insurance benefits, and (4) violation of the federal Employees Retirement Income Security Act, 29 U.S.C. §§ 1001 through 1461 (1982), which provides, at § 1132 (a)(1)(B) and (e), that a state court may hear a claim of an employee seeking to recover benefits due under medical and disability insurance plans.

The trial court denied the petitioners’ motion to dismiss the complaint because of the allegation of the express promise to pay medical insurance benefits. The brief of the petitioners states Blasingame’s claim is still pending before the workers’ compensation commission. Apparently the decision of an administrative law judge that the injury is not job-related has been appealed to the full commission. Clearly, if Blasingame should prevail before the commission some, if not all, of his contentions before the circuit court would be lost because of Ark. Code Ann. § 11-9-105(a) (1987) which provides that the workers’ compensation remedies are “exclusive of all other rights and remedies of such employee ... on account of such injury or death,” See White v. Appollo-Lakewood, Inc., 290 Ark. 421, 720 S.W.2d 702 (1986); Cain v. National Union Life Ins. Co., 290 Ark. 240, 718 S.W.2d 444 (1986); Sontag v. Orbit Valve Co., Inc., 283 Ark. 191, 672 S.W.2d 50 (1984).

Should the decision of the administrative law judge be affirmed, it would be clear that Blasingame’s alleged injury would not be covered by the workers’ compensation law. The petitioners argue that in that event Blasingame would have elected the workers’ compensation remedy to the exclusion of any other, citing Sontag v. Orbit Valve Co., Inc., supra. That case is distinguishable, as there the employee received workers’ compensation benefits for the alleged injury, and the injury thus obviously was covered by the workers’ compensation law and the exclusivity statutory provision applied. Here we do not yet have a final determination whether the workers’ compensation law applied to the injury in question. Under these circumstances we decline to hold that Blasingame has made an election such that he is barred from any of the relief he has sought in the event it is ultimately determined that his injury was not job-related and thus not covered by the Workers’ Compensation Law. See 2A A. Larson, Workmen’s Compensation Law, § 67.30 (1987).

Petition denied.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. It is not an overstatement to say that if this decision stands as a precedent, the rule that the Workers’ Compensation Commission has exclusive jurisdiction over workers’ compensation claims no longer exists. No matter how it is examined, the complaint filed by Mr. Lannie Blasingame against his employer and its parent company is bottomed on a workers’ compensation claim for an injury occurring in November, 1985. The complaint charges the employer with wrongfully refusing to pay group insurance benefits and workers’ compensation benefits, alleging conduct described as “willful, wanton, outrageous,” causing emotional distress for which the plaintiff seeks compensatory damages of $500,000 and punitive damages of $10,000,000.

By permitting this claim to proceed at law the majority is allowing an employee to sue his employer for the alleged wrongful denial of workers’ compensation benefits and overturning decades of statutory and case law to the contrary. Since the adoption of the workers’ compensation law fifty years ago this court has unfailingly, and wisely I think, rejected various, even ingenious, attempts to impose tort liability on employers by employees. Fore v. Circuit Court of Izard County, 292 Ark. 13, 722 S.W.2d 840 (1987); White v. Appollo-Lakewood, Inc., 290 Ark. 421, 720 S.W.2d 702 (1986); Simmons v. First National Bank, 285 Ark. 275, 686 S.W.2d 415 (1985); Oliver v. Bluegrass Resources Corp., 284 Ark. 1, 678 S.W.2d 769 (1984); Sontag v. Orbit Valve Co., Inc., 283 Ark. 191, 672 S.W.2d 50 (1984); Pyle v. Dow Chemical Company, 728 F.2d 1129 (8th Cir. 1984); Vann v. Dow Chemical Co., 561 F. Supp. 141 (W.D. Ark. 1983); Emerson Electric v. Cargile, 5 Ark. App. 92, 661 S.W.2d 433 (1983); W.M. Bashlin v. Smith, 211 Ark. 406, 643 S.W.2d 526 (1982); Seawright v. USF & G Co., 275 Ark. 96, 627 S.W.2d 557 (1982); Daniels, Adm’r. v. Commercial Union Insurance, 5 Ark. App. 142, 633 S.W.2d 396 (1982); Moss v. Southern Excavation, Inc., 271 Ark. 781, 611 S.W.2d 178 (1981); Woodall v. Brown & Root, Inc., 2 Ark. App. 106, 616 S.W.2d 781 (1981); Pheifer v. Union Carbide Corp., 492 F. Supp. 483 (E.D. Ark. 1980); Lewis v. Gardner Engineering Corp., 254 Ark. 17, 491 S.W.2d 778 (1973); Larson, Workmen’s Compensation Law, Vol. 2A, § 66.00, pp. 12-20. Ark. Code Ann. § 11-9-105 (1987) [Ark. Stat. Ann. § 81-1304 (Supp. 1985)].

In Cain v. National Union Fire Insurance Company, 290 Ark. 240, 718 S.W.2d 444 (1986), we dealt with a comparable situation:

We have previously ruled on this issue. In Johnson v. Houston General Insurance Company, 259 Ark. 724, 536 S.W.2d 121 (1976), we held that the benefits payable pursuant to the Workers’ Compensation Act and the procedure set out in that act for obtaining those benefits, constitute an exclusive remedy, and that remedy precludes an action at law, even for an intentional tort arising out of the non-payment of benefits. [Emphasis in original text.]

I do not imply that Mr. Lannie Blasingame may not have a potential claim against someone, perhaps against Riverside, more likely I should think against the insurer itself, for medical expenses payable under a group coverage plan. But it is obvious, or should be, that a claim for group benefits may not be used to circumvent the workers’ compensation statutes and to seriously undermine a sound principle of law that such claims belong exclusively to workers’ compensation rather than to the common law. Besides, Mr. Blasingame claims these medical expenses are compensable under workers’ compensation, so even that claim, at least for now, belongs to the commission. I respectfully suggest the requested writ of prohibition should issue, and promptly.


author: Tom Glaze, Justice. John I. Purtle, Justice,

text:
    Gratton HARRIS v. STATE of Arkansas
    CR 88-33
    748 S.W.2d 666
    Supreme Court of Arkansas
    Opinion delivered May 9, 1988

      Parker Law Firm, by: Kyle D. Parker, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant appeals from his conviction of second degree battery which resulted from a jury finding that he intentionally or knowingly, without justification, caused injury to Anthony Ward, the six-year-old son of appellant’s girlfriend. Appellant raises five points for reversal, four of which involve either the constitutionality, construction or application of A.R.E. Rule 803(25). His remaining point involves the trial court’s denial of appellant’s mistrial motion regarding certain remarks made by the prosecutor in his opening argument. We affirm the trial court’s ruling on all points.

Because the state intended to offer witnesses who would testify concerning statements made by Anthony about the origin and nature of his injuries, the trial judge conducted a pretrial hearing to determine the admissibility of such hearsay testimony under the requirements of A.R.E. Rule 803(25). We first note that appellant’s objection at the pretrial hearing was based on appellant’s claim that the hearsay testimony to be given by the state’s witnesses would be cumulative and its probative value would be outweighed by the prejudice it would cause. On appeal, the appellant, by different counsel, argues for the first time on appeal that Rule 803(25) violates the Confrontation Clause of the sixth and fourteenth amendments; and citing Ricarte v. State, 290 Ark. 100, 717 S.W.2d 488 (1986), he further argues the rule was illegally enacted by the Arkansas General Assembly, instead of being properly adopted by this court under its rule-making power. We have long held that a party cannot change the grounds for an objection on appeal, Vasquez v. State, 287 Ark. 473-A, 702 S.W.2d 411 (Supplemental Opinion) (1986). Therefore, we do not address appellant’s two issues that pertain to the validity and constitutionality of Rule 803(25).

We may, however, consider appellant’s contention that the hearsay statements, heard and considered by the trial court at the 803(25) hearing, should have been excluded at trial as cumulative and prejudicial. Appellant does not question the relevancy of such testimonial evidence. Our court has held that the mere fact that evidence is cumulative may be a ground for its exclusion, in the sound discretion of the trial judge, but it is hardly a basis for holding that its admission, otherwise proper, constitutes an abuse of discretion. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). The question of weighing the prejudicial effect of cumulative evidence against its probative value is a matter of balancing which is primarily the function of the trial judge in the exercise of his discretion and which should not be interfered with on appeal in the absence of manifest abuse. Id.

Here, Anthony testified at trial that the appellant “whipped me because I had an accident in my britches.” Anthony claimed the appellant kicked him, beat him with a belt and fly swatter wire, held his head under the water in the bath tub, ran hot water on his feet and put feces in his mouth. Appellant categorically denied such allegations, claiming he had not even seen Anthony on the evening the bruises and injuries appeared on Anthony’s face and body. Appellant’s testimony conflicted in meaningful respects with that offered by state witnesses, who gave a different account than appellant’s concerning his whereabouts on the night Anthony sustained his injuries. In terms of A.R.E. Rule 403, we cannot say the “probative value” of the testimony presented by the state “was substantially outweighed by the danger of unfair prejudice.” Accordingly, we hold the trial judge did not abuse his discretion in admitting the testimony offered by the state under Rule 803(25).

Appellant also argues that the trial court erred in failing to admonish (instruct) the jury, as directed under Rule 803 (25) (A) (3), after each state witness testifying as to Anthony’s out-of-court statements. The record shows that the trial judge, at the appellant’s request, did instruct the jury after each witness until the appellant specifically withdrew that request. He asked the trial judge to terminate such limiting instruction before the state had called all of its witnesses — three had not yet testified. The easy answer to appellant’s argument here is that he cannot now complain of error that he was responsible for inviting. Strode v. State, 259 Ark. 859, 537 S.W.2d 162 (1976).

Finally, appellant contends that the trial court erred in failing to grant a mistrial because of the prosecutor’s opening remarks that the state’s expert witness, Dr. Tom C. Jefferson, would testify that this case involved the severest case of child abuse that he had ever seen. Appellant apparently interposed an objection to this effect during opening argument since such an objection has been abstracted even though the prosecutor’s opening argument or comments cannot be found in the abstract or in the transcript lodged in this appeal. Dr. Jefferson’s actual trial testimony was that, in terms of severity, he would rate the injuries to Anthony as “much more than usual severity.”

The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact issue. Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987); see also A.R.E. Rule 702. An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the trier of fact’s ability to understand and draw its own conclusion. Id. at 640, 732 S.W.2d at 821. Here, Dr. Jefferson described the marks and deep bruises he had found when he first examined Anthony, and said the marks and imprints were compatible with hand prints, a wire or cord and a belt. He testified that there were many deep bruises about Anthony’s face, an ear and his neck, back and arms, and he found “terrible thick” bruises around Anthony’s buttocks area and in front of his groin. Photographs had been taken at the time of Anthony’s examination and they were introduced at trial. However, Dr. Jefferson explained that Anthony, at the time of his examination, looked worse in person than the photographs depicted. We believe that Dr. Jefferson’s testimony that described Anthony at the time Jefferson examined him, aided the jury in determining both the origin, nature and extent of the physical injuries sustained by Anthony. Because Dr. Jefferson’s testimony was admissible, the prosecutor was entitled to refer to it in his opening statement. Ricarte, 290 Ark. 100, 717 S.W.2d 488.

Because we find no merit in any of the points raised by appellant, we affirm.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I think we should consider the validity and constitutionality of A.R.E. Rule 803 (25) on the merits. At every stage of the proceedings the appellant has protested the violation of his constitutional right of confrontation. A person ought not to be put to considerable trouble and expense in claiming what the United States Constitution already guarantees him. The price of such rights was paid when this Republic was established. Why then should any person be required to pay for these rights again?

For reasons stated in my dissent in Hughes v. State, 292 Ark. 619, 732 S.W.2d 829 (1987), and in my concurring opinion and the concurring opinion of Justice Dudley in Johnson v. State, 292 Ark. 632, 732 S.W.2d 817 (1987), I must dissent in this case. See also my concurring opinion in Cogburn v. State, 292 Ark. 564, 732 S.W.2d 807 (1987).

       In so holding, we do not imply (as appellant suggests here) that a limiting instruction must begiven the jury immediately at the end of any witness’s testimony that is admitted into evidence pursuant to Rule 803(25). See specifically Rule 803(25)(A)(3).