text:
    Curtis W. URQUHART v. STATE of Arkansas
    CR 81-35
    631 S.W. 2d 304
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      Petitioner, pro se.

      Steve Clark, Atty. Gen., for respondent.
   Per Curiam.

Petitioner Curtis Urquhart was convicted by a jury of rape and sentenced to forty years imprisonment and a $4,000 fine. He was also convicted of burglary in the same proceeding and sentenced to fifteen years imprisonment. The terms were ordered served consecutively. We affirmed. Urquhart v. State, 273 Ark. 486, 621 S.W. 2d 218 (1981). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to Arkansas Criminal Procedure Rule 37.

Petitioner Urquhart was identified by a deaf woman as the man who broke into her apartment on the night of July 17, 1980, and raped her. She identified Urquhart by a large scar on his shoulder. She also testified that she was familiar with Urquhart because he was a frequent visitor to the neighborhood. Urquhart’s defense was that the woman had invited him to her apartment and consented to sexual relations.

Petitioner claims ineffective assistance of counsel because counsel (1) consulted with petitioner only three times before trial; (2) did not prepare for trial; (3) was incompetent to deal with a deaf witness; and (4) did not consult with petitioner before allowing nine women to be seated on the jury. Petitioner also states that he and counsel could not agree on anything related to his defense. The allegations are conclusory. Allegations which are not supported by facts and a showing of some prejudice to the petitioner do not justify postconviction relief. Blackmon v. State, 274 Ark. 202, 623 S.W. 2d 184 (1981). The mere fact that petitioner did not agree with his attorney on the composition of the jury or on the many tactical decisions which must be made by counsel before and during trial does not demonstrate that counsel was ineffective. See Leasure v. State, 254 Ark. 961, 497 S.W. 2d 1 (1973). To warrant postconviction relief, a petitioner must show that he was prejudiced by counsel’s conduct. Furthermore, he must show by clear and convincing evidence that the prejudice resulting from the representation of counsel was such that he did not receive a fair trial. Blackmon, supra. Petitioner has fallen far short of demonstrating that he did not receive a fair trial.

Since the offense charged was rape, petitioner contends that the trial court and his attorney should not have allowed nine women to serve on the jury. He asserts that all women feel the same about rape and are not willing to make a fair judgment'in a trial involving the crime. The impartiality of a prospective juror is a question of fact for the trial court to determine in its sound discretion. Ark. Stat. Ann. § 39-105 (c) and (e) (Supp. 1981). No abuse of that discretion can be discerned from this petition. Also, the issue of the composition of the jury is one which could have been raised in the trial court; as such, it is not a proper ground for a petitioner under Rule 37. Neal v. State, 270 Ark. 442, 605 S.W. 2d 421 (1980). Petitioner argues, however, that counsel accepted the jury, leaving him powerless to challenge the panel as he wished to do. This argument is basically one of ineffective assistance of counsel which must fail because petitioner has not shown bias on the part of any particular juror. Jurors are assumed to be unbiaséd; the burden of demonstrating actual bias on .the part of any member of the panel is on the petitioner. See Strode v. State, 257 Ark. 480, 517 S.W. 2d 954 (1975). A general indictment of all women as being unsuitable jurors for a rape trial is not only highly questionable but also insufficient legally.

Petitioner next alleges that the trial court should have permitted him to dismiss his court-appointed attorney. Petitioner erroneously states that he had the legal right to dismiss as many as three attorneys before the court could decline to appoint another. The right to counsel of one’s choice is not absolute and may not be used to frustrate the inherent power of the court to command an orderly, efficient and effective administration of justice. Tyler v. State, 265 Ark. 822, 581 S.W. 2d 328 (1979). The trial court was obligated to appoint competent counsel, not to comply with petitioner’s wishes.

Petitioner’s final allegation is unclear. A friend of the victim testified at trial that the victim told her in sign language about the rape. Petitioner may be saying that this friend’s testimony was inadmissible. If so, the question was raised on appeal and decided adversely to petitioner. It may not be raised again in a Rule 37 petition. Houser v. State, 508 F.2d 509 (8th Cir. 1974). On the other hand, petitioner may be contending that the interpreter at trial was a friend of the victim. If so, the record does not support his argument. There is nothing to indicate any relationship between the victim and the trial interpreter. Furthermore, no objection to the interpreter was made at trial. This Court will not consider in a petition for postconviction relief matters which could, and should, have been raised at trial. Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980).

Petition denied.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John P. FORSYTH v. STATE of Arkansas
    631 S.W. 2d 304
    Supreme Court of Arkansas
    Opinion delivered April 12, 1982

      W. H. Taylor, for appellant.

      Steve Clark, Atty. Gen., for appellee.
   Per Curiam.

Appellant, John P. Forsyth, by his attorney, has filed for a rule on the clerk.

His attorney, W. H. Taylor, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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


author: Frank Holt, Justice.

text:
    Donald McENTIRE v. MONARCH FEED MILLS, INC.
    82-40
    631 S.W.2d 307
    Supreme Court of Arkansas
    Opinion delivered April 19, 1982

      Ponder ér Jarboe, for appellant.

      Simpson ér Riff el, for appellee and cross-appellant.
   Frank Holt, Justice.

This is an arbitration case. In May, 1980, the appellee contracted to purchase from appellant a quantity of yellow grain sorghum, which appellant expected to grow on his farm during the 1980 crop season. Upon failure to deliver the grain as agreed, the appellee initiated arbitration proceedings, pursuant to their contract, to determine its damages. The appellant responded by filing a petition in chancery court for a stay of arbitration. The appellee filed a counter complaint asking for a mandatory injunction requiring the appellant to submit to arbitration. The court, in dismissing the case, found it did not have jurisdiction to grant a stay, the appellant had an adequate remedy at law, if any, in federal court and denied appellee’s petition to require appellant to submit to arbitration. Hence come this appeal and cross-appeal in which both parties urge that the chancellor had jurisdiction to consider a stay of arbitration.

Appellant contends that our Uniform Arbitration Act, Ark. Stat. Ann. §§ 34-511 — 34-532 (Supp. 1981), gave the chancery court power to stay the arbitration proceedings. However, since that act, until amended in 1981, validates only arbitration agreements with respect to construction and manufacturing contracts, the arbitration contract here is unenforceable. Therefore, since the contract involves only intrastate commerce, the chancellor should enter a stay of the arbitration and leave the appellee to his remedy at law. On cross-appeal the appellee argues that even though our state Uniform Arbitration Act on the date of this contract did not include the subject matter here, the trial court did have jurisdiction, pursuant to the Federal Arbitration Act, 9 U.S.C.A. § 1, et seq., inasmuch as interstate commerce is involved in this transaction. Consequently, the chancellor has the power to require submission of the controversy to arbitration.

The issue was submitted to the chancellor on a stipulated record which consisted of the pleadings, the written contract which provided for arbitration, and argument per letters to the chancellor. The appellee, whose principal place of business is in Dexter, Missouri, buys grain and sells feed in southern Missouri and northern Arkansas. It has manufacturing .facilities in Dexter, Missouri, and Pocahontas, Arkansas. The contract provided that the appellee would purchase 200,000 pounds of No. 2 yellow grain sorghum at a stipulated price from the appellant, a farmer living near Walnut Ridge, Arkansas. The grain was to be delivered to the appellee’s plant in Pocahontas. Pertinent clauses in the contract provide that:

Seller agrees that no deliveries on this contract will be adulterated within the meaning of the Federal Food, Drug, and Cosmetic Act, or is an article or commodity which may not, under provisions of Section 404 or 506 of the Act, be introduced into interstate commerce. . . .
Buyer and seller agree that all controversies between them under this contract be settled by arbitration in accordance with the rules and regulations in the Grain Trade Rules of the National Federal Grain and Feed Association.

Section 1 of the Federal Arbitration Act, supra, reads: “[C]ommerce, as herein defined, means commerce among the several States . . .” Section 2 of the Act reads:

A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, ... or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

Arbitration is favored by a strong public policy and courts look with favor upon arbitration as an expeditious means of removing contentions from the area of litigation, which is less expensive to the parties and also eases congestion of court calendars. 6 C.J.S. Arbitration § 2. In Franks v. Battles, 147 Ark. 169, 227 S.W. 32 (1921), we said:

It has been said by this court, and by numerous others, that it is the policy of the law to encourage and uphold settlements of disputes in this manner.

Here, when we consider the undisputed facts that appellee’s activities involve transactions in Missouri and Arkansas, together with the recited provisions in the arbitration contract, it appears fair to say the parties’ transactions involved interstate commerce. Therefore, the Federal Arbitration Act is applicable.

We further observe that a state court, as here, has concurrent jurisdiction with the federal courts to enforce rights granted by a federal act unless prohibited from doing so. Duke v. Helena-Glendale Ferry Co., 203 Ark 865, 159 S.W.2d 74 (1942); Wright, Law Fed. Cts. 3d Ed., Ch. 8 (1979); 1 Moore’s Federal Practice § 0.6 [3], p. 237; Claflin v. Houseman, Assignee, 93 U.S. 130 (1876); Mondou v. New York, New Haven & Hartford Railroad Co., 223 U.S. 1 (1912); and McKnett v. St. Louis and S.F. Ry. Co., 292 U.S. 230 (1934).

Here, we find no provision in the Federal Arbitration Act which gives the federal courts exclusive jurisdiction over matters which come within its purview. It follows that the refusal of the chancellor to take jurisdiction of the subject matter was erroneous.

Reversed and remanded on direct and cross-appeal.


author: Darrell Hickman, Justice.

text:
    Frank ARNOLD, County Judge of Sharp County, Arkansas, et al v. NORTHEAST ARKANSAS PLANNING & CONSULTING COMPANY
    82-5
    631 S.W.2d 610
    Supreme Court of Arkansas
    Opinion delivered April 19, 1982

      Stewart K. Lambert, Deputy Pros. Atty., and Coop & Hopper, by: Paul E. Hopper, for petitioners.

      William R. Hass and H. David Blair, for respondents.
   Darrell Hickman, Justice.

For almost five years, Sharp County, through its elected officials, has resisted paying a $15,000 claim by the Northeast Arkansas Planning and Consulting Company. In June of 1980, we upheld a jury verdict against the county for $15,000. Sharp County v. Northeast Planning & Consulting Company, 269 Ark. 336, 602 S.W. 629 (1980). But the county still refused to pay.

The trial court issued a writ of mandamus to the county judge, Frank Arnold, and six members of the quorum court to take the necessary steps to pay the judgment. They refused, were held in contempt of court and ordered jailed until they paid the claim. We find no reason to disturb the findings and order of the trial court.

All the excuses offered by the officials are meritless. The debt has been determined valid, and Sharp County has had its day in court. The burden was on the county to show payment of the obligation would have violated the tenth amendment to the Arkansas Constitution. City of Piggott v. Woodard, 261 Ark. 406, 549 S.W.2d 278 (1977). The county did not meet their burden because there was no showing that the county did not have funds to pay the claim in 1975, the year the debt was incurred.

There is sufficient money in the county treasury to pay it now. The fact that the county has appropriated 100% of that money for other debts is irrelevant. The officials knew of the debt in question and took no steps to appropriate money for payment of it. In fact, it seems they refused to do so and that is why the trial judge ordered them to. So we do not have a case of ordering county officials to do what they cannot legally do. If funds have to be diverted from present appropriations it will have to be done. Any problems created by that action will be the result of the officials’ refusal to fulfill their responsibility in the first place — that is paying this just debt of the county.

For the first time Sharp County argues the judgment entered cannot bear interest because of Ark. Const., art. 16, § 1. That issue was not raised in Sharp County v. Northeast Planning & Consulting Company, supra, and the law of that case applies. The issue cannot be raised now. now.

We granted a temporary stay of the trial court’s order pending review of this matter on what we deem to be a petition for a writ of certiorari. That stay is dissolved and the matter is remanded. The trial court is free to proceed with its previously entered order.


author: Steele Hays, Justice.

text:
    April Yvonne LAWSON v. George LEWIS and Dorothy LEWIS, His Wife
    81-265
    631 S.W.2d 611
    Supreme Court of Arkansas
    Opinion delivered April 19, 1982

      Laser, Sharp ir Huckabay, P.A., for appellant.

      Jack R. Kearney, for appellee.
   Steele Hays, Justice.

This is a damage suit. Appellee Lewis and his wife brought suit against appellant Lawson for personal injuries and loss of consortium arising from a collision on December 20, 1977, between Lawson’s automobile and Lewis’s motorcycle. The case was tried to a jury upon an admission of liability by Lawson, but denying that any injury had been sustained by Lewis. The jury’s verdict found for the Lewises on their complaint and assessed their damages at “NONE.”

Appellees Lewis filed a motion for a judgment n.o.v. and in the alternative for a new trial. Over Lawson’s objection, the trial court set aside the verdict and granted a new trial, which Lawson claims on appeal was error. We disagree.

Appellant concedes that the law gives the trial court broad discretion in setting aside a jury verdict which it finds to be against the clear preponderance of the evidence. She argues, however, that its discretion here was abused as a matter of law, in that the instructions demonstrate that because of her admission of liability the issue of negligence was not submitted to the jury and, hence, the trial judge’s recollection to the contrary was mistaken. She contends the jury believed the injuries were fictitious.

The argument is unpersuasive because the trial judge gave an additional reason for setting aside the verdict. In a memorandum opinion he explained his reasons:

The Court in review of this matter must agree with petitioner in this instance and grant the Motion for New Trial. There is simply no substantial evidence upon which the jury should not have awarded some damages. The defendant had admitted liability; the Court erred in its failure to limit the jury’s verdict to the sole issue of those damages resulting; and the Court must now set aside the verdict.

Thus, whether the trial court’s recollection was accurate with respect to how the case was submitted to the jury we need not decide, as it is clear he found the verdict and the evidence to be at odds. But neither do we decide whether the evidence and the verdict were consistent, as appellant has abstracted nothing from the testimony and proof, other than a single medical report, and it would be utterly impossible to find an abuse of discretion where a new trial is granted because the evidence and the verdict fail to agree. Appellant’s brief tacitly concedes the point, as most of her argument is devoted to a discussion of the weaknesses and contradictions of appellees’ evidence with respect to the injuries, concluding that: “[A] review of the record in this case will readily establish that the jury did not reach an impermissible result or one unwarranted by the attempts of the appellee to portray the nature and extent of his alleged injuries. Certainly, contrary to the trial court’s order, there was at least ‘substantial’ evidence that the appellee had indeed received no injuries which were approximately caused by the accident in question.”

Unfortunately, we have no way of validating the argument in the face of the abstract given us. Supreme Court Rule 9 requires an abstract of so much of the record as is necessary to an understanding of the issues raised on appeal. To hold that the trial judge abused its discretion by finding the evidence to be such as to require a verdict in some amount for the plaintiffs (appellees) is utterly impossible where we have no basis on which to review his actions.

ARCP Rule 59 gives the trial court the discretionary power to grant a new trial to any party for ‘‘grounds materially affecting the substantial rights of such party,” including error in the assessment of the amount of recovery, whether too large or too small, or where the verdict is contrary to the preponderance of the evidence. Dorey v. McCoy, 246 Ark. 1244, 442 S.W.2d 202 (1969); Bobbitt v. Bradford, 241 Ark. 697, 409 S.W.2d 339 (1966). We find no abuse of discretion and the order is affirmed.


author: Jeff Starling, Special Chief Justice.

text:
    Herbert L. STORTHZ and Charlotte M. STORTHZ v. COMMERCIAL NATIONAL BANK
    81-236
    631 S.W.2d 613
    Supreme Court of Arkansas
    Opinion delivered April 19, 1982

      R. J. Brown, P.A., for appellants.

      Haley ir Young, P.A., by: Jack Young and Martha L. Strother, for appellee.
   Jeff Starling, Special Chief Justice.

This case is on appeal to this court pursuant to Rule 29. This is a suit filed in circuit court by appellee to secure a judgment against the appellants on two promissory notes. The appellants filed an answer and a counterclaim. Prior to the scheduled trial by jury, the appellee filed a motion for summary judgment which was granted by the trial court thereby affirming the relief prayed for in the appellee’s complaint and dismissing the counterclaim of the appellants.

In April, 1974, appellants obtained an agreement from First Federal Savings and Loan Association of Little Rock to advance to appellants the sum of $459,000.00 for the construction of the Renaissance Condominium project.

In July, 1974, First Federal refused, for internal reasons, to make the loan. Appellants’ attorney made demand upon First Federal to honor its commitment for the loan. In an effort to avoid litigation, Charles Johnston, President of First Federal, arranged with appellee for appellee to provide appellants with the financing for the project.

Appellee subsequently made the loan to appellants based upon an oral commitment from Mr. Johnston whereby he agreed that he would personally commit a limited amount of collateral to appellee should there be a default on the part of appellants and any loss to the bank on its loan to appellants.

On August 14, 1974, appellee loaned appellants $459,000.00 which was evidenced by appellants’ promissory note with interest thereon at ten percent (10%) per annum, payable semi-annually. This promissory note was secured by a construction mortgage on the condominium project. This promissory note was extended on several occasions with the final extension becoming due on August 9, 1978.

In June, 1976, appellants obtained from appellee an additional loan in the amount of $83,000.00 for the purpose of completing the interior decorations of the project units. This indebtedness was also evidenced by appellants’ promissory note with interest at the rate of ten percent (10%) per annum. This promissory note was also extended on several occasions with the final extension also becoming due on August 9, 1978.

On October 25, 1978, Mr. Johnston, as trustee, assigned to appellee a promissory note in the amount of $108,666.67 secured by a lien retained in a warranty deed. Subsequently, a $49,000.00 certificate of deposit was substituted by Mr. Johnston for the above mentioned promissory note. Thereafter, on August 6,1980, a $27,000.00 cashier’s check purchased by Mr. Johnston and made payable to appellee was substituted for the $49,000.00 certificate of deposit.

Appellants were unaware of the personal verbal commitment between Mr. Johnston and the appellee and the amount of the collateral pledged and substituted until the fall of 1978.

Prior to the two promissory notes becoming due on August 9, 1978, appellants attempted several accomodations with appellee, namely, urging appellee to accept the project units, which were the mortgaged collateral, in cancellation of the indebtedness owed by appellants to appellee. Appellee refused.

On August 9, 1978, the amounts due and owing pursuant to the two promissory notes were unpaid and in default.

On January 16, 1979, appellee filed suit in circuit court seeking judgment against appellants on the two promissory notes in the amount of $151,561.91, together with accrued interest from and after August 9, 1978, until paid, costs and attorneys’ fees.

Appellants filed their verified answer and counterclaim denying certain material allegations in the appellee’s complaint, raising affirmative defenses, alleging deceit and seeking judgment against appellee in the sum of $350,000.00 and punitive damages in the sum of $700,000.00 and for penalties as provided by federal law for usurious transactions.

On or about July 31, 1980, appellee cashed the $27,000.00 cashier’s check of Mr. Johnston.

The case was set for jury trial on February 10, 1981. On February 2, 1981, appellee filed its motion for summary judgment which was submitted on the pleadings, depositions, affidavit of Charles Johnston and brief of the appellee.

On February 9, 1981, the motion for summary judgment was heard by the trial court. On the same day, appellants filed a first amended answer and counterclaim alleging that the $27,000.00 collateral received by appellee from Mr. Johnston should be credited against appellants’ indebtedness.

The trial court granted appellee’s motion for summary judgment in the amount of $151,561.91 with accrued interest from August 9, 1978, until paid, as prayed for in appellee’s complaint. The trial court specifically found that the $27,000.00 collateral received by appellee from Mr. Johnston was not a credit against the indebtedness owed by appellants to appellee. From a granting of that motion, appellants bring this appeal.

Appellants argue the following points for reversal on appeal to this court.

I. The trial court erred in granting summary judgment because genuine issues of material fact remain to be determined by the jury:
A. Whether the bank charged or collected usurious interest so that the penalty of federal law should be applied.
B. Whether the bank applied the credit from the collateral provided by Charles Johnston correctly to appellants’ note.
C. The amount that the defendants owe to the bank.
II. The trial court erred in dismissing the counterclaim of the defendants against the bank because the counterclaim states a cause of action for deceit or misrepresentation through concealment of the guaranty of Charles Johnston or First Federal Savings and Loan, raising material issues of fact which can only be decided by the jury.
Each point shall hereafter be discussed.

It is well-settled that summary judgment should be granted only when a review of the pleadings, depositions and other filings reveal that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56, Arkansas Rules of Civil Procedure.

First, appellants contend that appellees’ collection of interest on a semi-annual basis pursuant to a promissory note “with interest from date until maturity at the rate of ten percent per annum . . payable semi-annually” is usury in that such collection allows the appellee to utilize appellants’ interest payment money for six months and that the income appellee earns on the mid-year payment of interest constitutes additional interest thereby making the note usurious.

It is clear from a reading of the cases that a note obligation at maximum interest requiring quarterly or semi-annual payments of interest, with or without principal, does not render the transaction usurious. Pellerin Laundry Machinery Sales Company v. Hogue, 219 F. Supp. 629 (D.C. W.D. Ark. 1963). One simply needs to reflect upon the common everyday situation in which a debtor borrows money for six months at maximum interest. If, at the end of the six month period, the debtor cannot repay the principal but is allowed to pay only the interest and thereby renew the note for the principal for an additional six months at maximum interest, such a transaction clearly does not constitute usury.

Next, appellants argue that appellee’s alleged use of 360 days as the basis year in computing simple interest is usury. It is now settled that the use of a 360 day basis year in computing simple interest is one of the correct methods of computing simple interest and is not usury. Martins Mobile Homes v. Moore, 269 Ark. 375, 601 S.W.2d 868 (1980).

Thirdly, appellants argue that the $27,000.00 received by appellee from Charles Johnston, pursuant to his oral agreement to commit a limited amount of personal collateral to appellee in case of appellants’ default, should have been credited against the indebtedness of the appellants.

It is not necessary to determine whether or not the $27,000.00 collateral received by appellee should have been credited to the indebtedness of the appellants under the facts of this case insofar as appellee, at oral argument before this court, conceded that it would credit the $27,000.00 to the indebtedness of the appellants. Therefore, we would remand to the trial court the proper allocation of this credit. This mathematical computation will necessarily resolve appellant’s next point regarding the amount that the appellants’ owe to the appellee.

As their final point, appellants urge reversal in that the trial court dismissed that portion of appellants counterclaim alleging a tort cause of action in deceit.

In MFA Mutual Insurance Company v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981), this court specifically set forth the five elements of the tort cause of action in deceit. Proof of each element is necessary. The elements are 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.

The threshold requirement of the first element set forth above is that there must be a “false representation”. Here, appellee made no representation at all, much less one that was false. Thus, it is apparent from the record before us that proof of the first element in the tort cause of action in deceit is clearly absent. Furthermore, under the facts of this case, we find that appellee had no duty to disclose the oral commitment between Mr. Johnston and appellee.

In conjunction with this final point, appellants further argue that appellee had a duty to accept the collateral of the appellants (the condominium units) in lieu of pursuing payment on the promissory notes. However, appellants cite no authority nor are we aware of any such authority which would contradict the well-established principle of law that the holder of a note has no duty to accept the collateral pledged absent agreement to do so.

While it is true that upon motion for summary judgment the trial court should review the record in the light most favorable to the party resisting the motion and resolve any doubts or inferences against the movant, where the movant makes a prima facie showing of entitlement to summary judgment the respondent must discard the shielding cloak of formal allegations and meet proof with proof by showing a genuine issue as to a material fact. Hughes Western World, Inc. v. Westmoor Manufacturing Company, 269 Ark. 300, 601 S.W.2d 826 (1980); Coffelt v. Arkansas Power ir Light Company, 248 Ark. 313, 414 S.W. 2d 881 (1970). Here, we cannot say that there was a genuine issue as to any material fact or that the trial court erred in granting appellee’s motion for summary judgment. In respect to the $27,000.00 credit to the indebtedness of the appellants as conceded by the appellee, this case is remanded to the trial court for further proceedings consistent with this opinion.

Affirmed as modified and remanded.

George Steele, Special Justice, joins in the opinion.

Adkisson, C.J., and Hays, J., not participating.


text:
    Felton ADAMS v. STATE of Arkansas
    CR 79-201
    631 S.W.2d 828
    Supreme Court of Arkansas
    Opinion delivered April 26, 1982

      Robert F. Morehead, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Following our reversal in Adams v. State, 263 Ark. 536, 566 S.W.2d 387 (1978), a jury found appellant guilty of aggravated robbery and theft and assessed his punishment at 25 years and 7 years respectively as a habitual offender. We affirm.

We first consider appellant’s contention, through court appointed counsel, that the court erred in allowing the state to substitute an expert fingerprint witness the day before trial because of the unexpected illness of the scheduled expert witness. The state had tried to immediately notify appellant’s counsel. The trial court denied appellant’s motion that the substituted witness be precluded from testifying. However, the court did grant a six day recess to permit defense counsel to interview the witness and investigate his qualifications. No error is demonstrated. Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981).

Neither can it be said that the trial court erred in denying appellant’s motion for funds to pay some unknown, unnamed witness to rebut the testimony of the state’s substituted fingerprint expert. Admittedly, appellant knew that the state would present a fingerprint expert witness. Further, appellant does not argue nor has he shown that the testimony of a substitute witness would be any different from that of the unavailable witness for which he had admittedly made sufficient preparation.

Appellant asserts that the trial court erred in numerous other instances. A sufficient answer is that we do not consider arguments which are not presented to the trial court and are raised for the first time on appeal in this type of case. Kitchen v. State, 271 Ark. 1, 607 S.W.2d 345 (1980); Sumlin v. State, supra. The record on appeal is confined to that which is abstracted. Jones v. Reed, 267 Ark. 237, 590 S.W.2d 6 (1979). Furthermore, we do not reach a contention when, as here, it is not supported by convincing argument nor authority unless apparent, without further research, the contention is well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977).

Again we find it necessary to emphasize compliance with the procedure set out in Rule 9, Rules of the Supreme Court, Ark. Stat. Ann. Vol. 3A (Repl. 1979), which must be strictly followed in order to enable the court to determine whether there is merit in any asserted point of error. That necessity was fully discussed in Randle v. State, 257 Ark. 232, 516 S.W.2d 6 (1974); Kitchen v. State, supra; and Jones v. Reed, supra. The mere scattering of transcript references in an appellant’s argument is not a sufficient substitute for the requirement of a proper abstract. Kitchen v. State, supra.

Affirmed.


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

text:
    Don BROWN v. STATE of Arkansas
    CR 81-127
    631 S.W.2d 829
    Supreme Court of Arkansas
    Opinion delivered April 26, 1982

      James W. Russell, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Don Brown was convicted of aggravated robbery with a deadly weapon and sentenced to fifty years imprisonment. On appeal he raises two issues. First, he argues the court was wrong in granting a mistrial in the presence of the jury and dismissing two co-defendants from the trial. Second, he argues the court was wrong in admitting his confession because it was involuntary, taken after an undue delay and an illegal arrest. We find no error and affirm the judgment.

Brown, along with two other men, Edward Brown and Johnnie Glenn, was tried for the robbery of the Majik Market in West Memphis, Arkansas, which occurred on December 4, 1980. During closing argument, counsel for Brown pointed out to the jury that Brown was the only defendant who had taken the witness stand. At this point counsel for the other two defendants asked for a mistrial and it was granted. There was no objection to the motion for a mistrial, no exceptions to the judge’s ruling, and no request for an admonition. It is suggested that we should apply the plain error rule in this case and take into consideration the fact that the jury only had one of the three defendants before it and took its wrath out on this defendant. There is no evidence whatsoever to support that supposition. Brown’s counsel brought this matter about. No objection was made and without any showing of prejudice, we find no error in the court’s action.

The second issue requires more discussion. The court held a Denno hearing and heard testimony of various police officers and witnesses regarding the circumstances that led to Brown’s arrest, his incarceration, and his admission that he was involved in the Majik Market robbery. The West Memphis police department was investigating another robbery concerning the A-l Liquor Store. A victim of that robbery had identified the appellant as the robber and the police obtained a warrant for Brown’s arrest. When Brown went to the police station to obtain his automobile, which had been confiscated, they arrested him for this robbery. He was advised of his rights twice according to the police and at first denied complicity in the A-1 robbery. Later, on Sunday, the officers said that Brown confessed to both the Majik Market robbery and the A-l robbery. They testified that the confession was voluntarily given without any coercion on their part. On the basis of this confession they caused an information to be filed against Brown for the Majik Market robbery. Two witnesses who saw the Majik Market robbery told the police that Brown was one of the robbers. The witnesses said that they did not immediately identify Brown when they were questioned by the police but later did identify him. This all occurred during the weekend Brown was in jail. Brown testified that he was physically and mentally intimidated during his incarceration, threatened, and awakened early Sunday morning and questioned again.

It is unnecessary to elaborate in detail all the testimony of the police officers and Brown. Suffice it to say the trial court held a Denno hearing and found that the officers had probable cause to arrest Brown and that the statement was not involuntary. On appeal we make an independent determination of voluntariness of a confession. We consider the totality of the circumstances and will resolve all doubts in favor of individual rights, but we will not reverse the trial court’s holding unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). In this case there was a conflict between the testimony of Brown and the police officers and we have to defer to the superior position of the trial court to resolve the issue of credibility of the witnesses. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978).

Certainly we cannot say it is reversible error that Brown was not arrested for the Majik Market robbery until after he confessed. There is no doubt that a warrant was issued for his arrest in connection with the A-l robbery and he was arrested and incarcerated for that offense. He was in custody at the time he was placed under arrest for the Majik Market robbery and an information was caused to be filed against him for that offense. Even if the arrest was illegal, and we in no way deem it so, it would not vitiate his confession. Sanders v. State, 259 Ark. 329, 532 S.W.2d 752 (1976).

It is undisputed that Brown was held from late Friday afternoon through the weekend before he was taken before a magistrate on Monday morning. A.R.Cr.P., Rule 8.1, requires that an arrested person be taken before a magistrate without unnecessary delay. We cannot say on the facts in this case that Rule 8.1 was violated. See Wilson v. State, 258 Ark. 110, 522 S.W. 2d 413 (1975), cert. denied 423 U.S. 1017 (1975).

Purtle, J., concurs in part, dissents in part.

John I. Purtle, Justice,

concurring in part, dissenting in part. I concur with that portion of the majority opinion which holds that the granting of a mistrial in the presence of the jury as to the codefendants did not amount to prejudicial error. However, I disagree with the holding which allows appellant’s confession to be introduced into evidence.

I feel a few more facts need to be set out in order to present a fuller understanding of what happened in this case. The Majik Market Store and the A-1 Liquor Store were both robbed on December 4, 1980. Three witnesses observed the robbery at the Majik Market. The manager of the Majik Market could not identify the robbers nor could she pick them out from mug shots shown to her on the day of the robbery or the next day. Her identification materialized at the time she met the appellant in court with his attorney. The appellant was arrested at 5:00 p.m. on Friday, December 5, 1980, for robbery of the A-l Liquor Store. The warrant of arrest was issued by a deputy clerk in relation to the robbery of the A-l Liquor Store. There was no affidavit for an arrest warrant, and there is no statement by anyone personally identifying the appellant either in person or from mug shots for either robbery. Although the appellant was picked up the afternoon of December 5, 1980, he declined to issue a statement. However, on Sunday the officers managed to obtain confessions from him not only for the robbery of the A-l Liquor Store but also the Majik Market. Both confessions are dated at 11:30 a.m. on December 7,1980. The record indicates the three witnesses to the Majik Market robbery identified the appellant from mug shots sometime during the day of December 7, 1980. The record does not show whether the witnesses identified the appellant before or after the statement was given. Each of these witnesses testified that they were acquainted with the appellant and recognized him at the scene of the robbery. However, they could not explain why they did not tell the officers who the robber was when they talked with the officers shortly after the robbery on December 4, 1980. The explanation of one was “I recognized Don Brown but I wanted to wait and see his picture to be sure it was him.” This shows absolute confusion. The only thing in the record relating to the identification of the appellant as being the robber of the A-1 Liquor Store is a statement by an officer that the operator of the liquor store had identified him. There is no confirmation of this fact in any other form. The officer does not even state that the witness told him the appellant was the person and there is nothing else whatsoever in the record to show the reliability of the statement, if it was ever made.

If appellant was not in legal custody, then I am sure the majority would agree that his confession should have been excluded. The officer who arrested him did not see him commit any violation of the law and, therefore-, had no right to arrest on such grounds. There is nothing in the record to show that the officer had reasonable cause to believe that the appellant had committed the felony other than a vague hearsay statement by an officer that the operator stated the appellant had robbed the store. This does not measure up to probable cause by any stretch of the imagination.

It is uncontroverted that the arrest warrant in this case was issued by a deputy court clerk. A.R.Cr.P., Rule 7.1, states in part:

(a) A judicial officer may issue an arrest warrant for a person who has failed to appear in response to a summons or citation.
(b) In addition, a judicial officer may issue a warrant for the arrest of a person if, from affidavit, recorded testimony, or other information, it appears there is reasonable cause to believe an offense has been committed and the person committed it. . .

Section (c) of the above rule provides that a deputy clerk may issue an arrest warrant upon the filing of an information or affidavit sworn to by a complainant provided such authorization has been granted by the judge of the court. It is obvious the warrant involving the A-l Liquor Store was absolutely void on its face. There was never even a warrant issued in the Majik Market robbery much less any affidavits filed. Therefore, the appellant was held in custody without authority some two days before he eventually gave the officers the statement they wanted.

The burden is on the state to prove the voluntariness of an in-custody confession. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). The trial court was not called upon and did not rule upon the legality of the custody of the appellant. The court ruled only on the voluntariness of the confession and the photo identification procedure. Although the court was not apprised of the fact that appellant was not legally in custody, I would employ the plain error rule and reverse and remand for a new trial. It is the duty of our circuit courts in criminal trials to afford defendants a fair and impartial trial under the Sixth Amendment to the United States Constitution. If this is to be enforced, we must be able to bring to that court’s attention prejudicial errors in a defendant’s trial, when they are of a magnitude that would infringe upon his constitutional rights. I cannot help but think that the framers of our constitution in their wisdom wanted this right preserved. To follow the reasoning of the majority would chip away at one of the most fundamental constitutional rights, that of a fair trial. I prefer to leave the constitution unchipped and unblemished.


author: Robert H. Dudley, Justice.

text:
    STATE of Arkansas v. Eddie Lee SMALL
    CR 81-136
    631 S.W.2d 616
    Supreme Court of Arkansas
    Opinion delivered April 26, 1982

      Steve Clark, Atty. Gen., by: VictraL. Fewell, Asst. Atty. Gen., for appellant and cross-appellee.

      William R. Simpson, Jr., Public Defender, and Jim Petty, Deputy Public Defender, Trial Attorney, by: Deborah R. Sailings, Deputy Public Defender, for appellee and cross-appellant.
   Robert H. Dudley, Justice.

Appellee Eddie Lee Small was charged with committing rape upon Enis Robinson on August 11, 1980. The Arkansas Rape Shield Statute, Ark. Stat. Ann. §§ 41-1810.1 and 41-1810.2 (Repl. 1977) prohibits evidence of the victim’s prior sexual conduct unless, upon written motion and hearing, relevancy of the proffered evidence is established and its probative value outweighs its prejudicial effect. At the pretrial hearing appellee offered evidence of prior inconsistent extrajudicial statements about previous acts of consensual intercourse between the prosecutrix and the appellee. The trial court ruled the proof was relevant and its relative probative value outweighed its prejudicial nature. Pursuant to the statute the state takes this interlocutory appeal. We reverse on direct appeal.

At the pretrial hearing defense counsel stated positively that consent by the prosecutrix was not an issue; appellee denies the act occurred and contends the charges are false. We have consistently held that acts of prior consensual intercourse with the accused are admissible only to show that consent may have been given. Eskew & Bolton v. State, 273 Ark. 490, 621 S.W.2d 220 (1981); Manees v. State, 274 Ark. 69, 622 S.W.2d 166 (1981); Marion v. State, 267 Ark. 345, 590 S.W.2d 288 (1979); Houston v. State, 266 Ark. 257, 582 S.W.2d 958 (1979). Here, consent is not at issue and the prior sexual conduct of the prosecutrix is not relevant to the principal issue. To permit evidence of inconsistent statements about prior sexual conduct, a collateral matter, would rob the statute of its efficacay and thwart the obvious intent of the General Assembly. Therefore, if the state does not raise the issue on direct examination, evidence of prior inconsistent extrajudicial statements regarding previous acts of consensual intercourse is not admissible and we reverse on that point.

Eddie Lee Small, as cross-appellant, argues that the trial court erred in suppressing evidence that the prosecutrix was a prostitute. The trial court correctly ruled that appellee would, under the rape shield statute, be permitted to develop proof of any bias and motive on the part of the prosecutrix. In conjunction with that holding, the trial court sustained an objection, based on hearsay, to testimony that the prosecutrix was a prostitute. None of the witnesses had firsthand knowledge that the prosecuting witness had been a prostitute within the last four years. A ruling on whether testimony is hearsay is not subject to an interlocutory appeal under the rape shield statute and accordingly, we do not consider the matter.

Reversed on direct appeal and the cross-appeal is dismissed.


author: George Rose Smith, Justice. Steele Hays, Justice, dissenting.

text:
    Don McClellan, d/b/a McClellan agency v. Michael BROWN, d/b/a BROWN RAILROAD CONSTRUCTION COMPANY
    82-44
    632 S.W.2d 406
    Supreme Court of Arkansas
    Opinion delivered May 3, 1982
    [Rehearing denied June 1, 1982.]

      The Strother Firm, by: Lane H. Strother and Judith C. Strother, for appellant.

      Henry J. Osterloh, for appellee.
   George Rose Smith, Justice.

For a year or two the plaintiff Brown, engaged in a construction business, obtained his various types of insurance through the defendant McClellan’s insurance agency. On April 21, 1978, Brown paid McClellan $1,856 for workers’ compensation coverage on Brown’s employees, but McClellan failed to obtain the necessary policies, though he represented to Brown that he had done so. As a result of the omission Brown was compelled to pay $ 17,120 to an inj ured employee, plus legal fees and costs.

Brown, in asserting this claim for actual and punitive damages, alleged that McClellan’s “acts were willful and wanton in that defendant failed to pay the premium even though he had been paid” by Brown. McClellan’s liability for Brown’s actual damages is not questioned. With regard to the claim of punitive damages the trial judge, sitting without a jury, allowed Brown to call witnesses who had been dissatisfied with McClellan’s handling of their insurance coverage and allowed McClellan to call witnesses to express their satisfaction with his services. At the conclusion of the testimony the court orally made these findings:

This Court finds that there was willful, wanton, and malicious conduct on the part of the defendant. And frankly, it appears to the Court that what the defendant may well have done was to have gambled. The truth of the matter is that when he accepted eighteen hundred and fifty-six dollars from the plaintiffs, he cashed the money and did not provide coverage and did not return the money, he was in fact guilty of a crime. Theft of property.

(Thecourt, in referring to the possibility that McClellan had gambled, apparently meant that McClellan may have taken a deliberate risk by leaving Brown uninsured in the hope that no compensable injury to his employees would occur.)

Counsel for the appellee declares in his brief: “The instant case is not a contract action, it is a tort action and always has been.” We are at a loss to understand how it can be called a tort action. Prosser points out how difficult it is to frame a complete definition of a tort. Prosser on Torts, § 1 (4th ed., 1971). In general, the law of torts provides redress for various injuries; the purpose of the law of contracts is to see that promises are performed. Atkins Pickle Co. v. Burrough-Uerling-Brasuell, 275 Ark. 135, 628 S.W.2d 9 (1982). We have followed Prosser’s view that a breach of contract is not treated as a tort if it consists merely of a failure to act (nonfeasance) as distinguished from an affirmatively wrongful act (misfeasance). Morrow v. First Nat. Bank of Hot Springs, 261 Ark. 568, 550 S.W.2d 429 (1977). In our opinion the present case is plainly an action for breach of contract, there being no duty on McClellan’s part except to perform his promise to obtain insurance coverage for Brown.

Punitive damages are not ordinarily recoverable for breach of contract. Snow v. Grace, 25 Ark. 570 (1869). In adhering to that principle we have said: “To support a claim for punitive damages there would have to be a willful or malicious act in connection with a contract. A bare allegation of fraud which results in a monetary loss would not justify punitive damages and that is essentially what the complaint alleges in this case.” Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981).

The trial judge doubtless believed that McClellan acted dishonestly in not obtaining insurance for Brown and in later assuring Brown that he was protected, but McClellan’s misuse of the money was not criminal theft. If commercial transactions are to have validity, it is essential that money be truly negotiable. No matter whether McClellan used Brown’s premium payment to pay his own debts, to support his family, to make a church contribution, or to bet on a horse race, the bare misuse of the money was not a tort or a crime.

Granted that McClellan acted intentionally in not obtaining workers’ compensation coverage and in telling Brown that he had done so, the issue is still whether his action was so willful within the intent of our holding in Curtis (malice not being indicated in the case at bar) as to justify the imposition of punitive damages. Since any intentional act may be referred to as “willful,” we must always consider circumstances other than the wrongdoer’s intention to do what he did, in order to determine whether punitive damages are appropriate.

An excellent discussion of basic principles underlying the imposition of punitive damages is contained in Justice Schaefer’s opinion in Mattyasovszky v. West Towns Bus Co., 61 Ill. 2d 31, 330 N.E.2d 509 (1975). After first noting that punitive damages are awarded “to punish the offender and to discourage other offenses,” the court examined the reasons and justification for such awards:

The underlying strength of these objectives of punishment and deterrence varies substantially from case to case. Where, for example, the defendant has benefited by his misconduct, a judgment which only compensates the plaintiff for what he has lost would permit the defendant to keep his wrongful gain. Apart from such cases, the situations in which punitive damages become an issue cover a broad spectrum that ranges from the intentional tort which is also a crime [citation omitted], to what we characterize today as “willful and wanton” conduct, a characterization that shades imperceptibly into simple negligence.
The objectives of an award of punitive damages are the same as those which motivate the criminal law — punishment and deterrence. Yet in a criminal case the conduct which gives rise to the imposition of punishment must be clearly defined. That is not so when the question is whether the conduct of the defendant can be characterized as either negligence or as willful and wanton conduct. The fine that is imposed upon the defendant in a criminal case goes to the State. But in a civil case the exaction taken from the defendant, under the label of exemplary damages, becomes a windfall for the plaintiff. The maximum and minimum amounts of the fine imposed by way of punishment and deterrence in a criminal case are fixed by statute. In the civil case, however, the jury is left at large to take from the defendant and deliver to the plaintiff such amount as it sees fit.

Here we do not have a typical situation mentioned by Schaefer, in which the wrongdoer retains a wrongful gain after the payment of compensatory damages. To the contrary, not only must McClellan pay in compensatory damages some $15,000 more than the possible gain from his misconduct, he has also surrendered his license as an insurance agent. Hence in the case at bar compensatory damages also inflict punishment.

There remains the deterrent effect of the trial court’s award of punitive damages. In Ray Dodge, Inc. v. Moore, 251 Ark. 1036, 1045, 479 S.W.2d 518 (1972), we quoted an observation in a New York opinion, that one who acts out of anger or hate in committing assault or libel is not likely to be deterred by the fear of punitive damages. Similarly, an insurance agent who risks the loss of ten or fifty times his possible gain, and the loss of his livelihood as well, is not apt to be deterred by the fear of punitive damages.

In Ray Dodge we sustained an award of punitive damages against a used-car dealer who had turned back an odometer reading to make the vehicle’s mileage appear smaller than it really was. We pointed out, however, that compensatory damages in an occasional lawsuit of that kind would not deter other used-car dealers from victimizing thousands of other purchasers. In the present case the deterrent effect of punitive damages would be negligible. On the minus side, if such damages were permitted the testimony might range far afield, as it did here, with 13 witnesses being called to testify whether McClellan had treated them well or badly in earlier unrelated transactions.

We find little persuasive force in two Georgia cases having somewhat similar fact situations. In the first case the court did not even discuss punitive damages, merely mentioning in passing that the jury had awarded compensatory and punitive damages. Patterson v. Castellaw, 119 Ga. App. 712, 168 S.E.2d 838 (1969). In the second case the court said that punitive damages can be awarded (in Georgia) upon proof of “that entire want of care which would raise the presumption of a conscious indifference to consequences.” Speir Ins. Agency v. Lee, 158 Ga. App. 512, 281 S.E.2d 279 (1981). That language describes mere recklessness, which is not a ground for the exaction of punitive damages in Arkansas.

The award of punitive damages is set aside and that cause of action dismissed.

Purtle, J., not participating.

Hays, J., dissents.

Steele Hays, Justice, dissenting.

I believe the trial court was entirely correct in awarding punitive damages. First, the pleadings and proof were sufficient to support a cause of action in tort and, second, under the circumstances of this case, punitive damages are appropriate to a cause of action for breach of contract, I agree that ordinarily punitive damages are not recoverable in breach of contract cases, but the rule is hot absolute and there are exceptions. The elements that make this case exceptional are found in the fact that the breach of contract was accompanied by intentionally dishonest acts by the appellant for his own personal gain.

Actions brought by an insured for breach of duty owing to him by an insurance agent may be laid in contract or in tort. 44 C. J.S. Insurance 172b, p. 863. By amended complaint Brown alleged “willful and wanton” conduct on McClellan’s part and prayed for punitive damages. The trial court expressly found McClellan had acted willfully, wantonly and maliciously in twice misappropriating Brown’s insurance premium payments while representing to him that he was covered. Thus, elements of a cause of action sounding in both tort and contract were pleaded and proved at trial. The trial court also found McClellan’s actions in placing Brown’s premium payment in his own personal account while representing that he had paid the insurance company amounted to theft. The majority opinion discounts McClellan’s intentional dishonesty, focusing only on his breach of contract. In fact, the majority treats McClellan exactly as if he had been merely negligent.

The effect of the majority opinion is to allow an insurance agent by practicing a fraud and deception upon his principal, to act as an insurance carrier, gambling that no loss will occur. Since an individual agent rarely has the financial reserves of an insurance carrier, the likelihood that in the event of a loss the “insured” will not be compensated, is greatly increased. Public policy demands such practices be penalized.

Assuming, for the sake of argument, that appellee’s cause of action is based solely on contract, recovery of punitive damages will still lie where the breaching party’s conduct is willful and malicious. Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1980). Also, where breach of contract includes elements that enable the court to regard the case as falling within the field of tort, or closely analogous, punitive damages may be awarded by way of punishment. 5 Corbin on Contracts § 1077 at 439. “Thus where the acts constituting a breach of contract also amount to a cause of action in tort, there may be recovery for exemplary damages on proper allegations and proof.” 25 C.J.S. Damages § 120at 1128.

As a general rule, damages for breach of contract are limited to the pecuniary loss sustained. . . . This rule does not obtain, however, in those exceptional cases where the breach amounts to an independent, willful tort, in which event exemplary damages may be recovered under proper allegations of malice, wantonness or oppression. 22 Am. Jur. 2d Damages § 245 at 337.

The cases cited in the majority opinion are distinguishable from the case under review. In Morrow v. First Nat. Bank of Hot Springs, 261 Ark. 568, 550 S.W.2d 429 (1977), no intentional wrongful acts were alleged or proven. In Curtis v. Partain, supra, this court said punitive damages may lie in a breach of contract action, but there the plaintiff had waived punitive damages by seeking them against only one of four co-defendants involved in the same scheme and because there was no claim of willful or malicious conduct.

Other cases recognize punitive damages are appropriate where, as here, an agent maliciously breaches a duty to his principal based on contract. Brown v. Coates, 102 App. DC 300, 253 F. 2d 36, 67 ALR 2d 943 (1958). See also 67 ALR 2d 952. In Brown a real estate broker acted fraudulently in conveying his client’s house to himself without applying the value of the equity toward the client’s purchase of a second house as he represented he would do. The court said:

. . . [0]nce it has been shown that one trained and experienced holds himself out to the public as worthy to be trusted for hire to perform services for others, and these so invited do place their trust and confidence, and that trust is intentionally and consciously disregarded, and exploited for unwarranted gain, community protection, as well as that of victim, warrants the imposition of punitive damages. (At 950.)

And at 949:

We believe the better view in certain, narrowly defined circumstances, where a breach of contract merges with, and assumes the character of a willful tort, calculated rather than inadvertent, flagrant, and in disregard of obligations of trust punitive damages may be assessed.

In Speir Insurance Agency, Inc. v. Lee, 281. S.E.2d 279 (1981), the Court of Appeals of Georgia upheld an award of punitive damages in an action for breach of contract brought by the insured against an insurance agent upon proof the agent had issued a binder insuring the plaintiff’s automobile with American Reserve for $500 from July 15, 1978, to July 5,1979. On August 11, 1978, American Reserve notified the agent the binder had expired “pending receipt of additional information” from the agent. The agent failed to obtain additional coverage and also failed to refund the unused portion of the $500 payment, and on September 2, 1978, the plaintiff was involved in an automobile collision without coverage. Upholding the trial court’s award of punitive damages the court said:

To authorize the imposition of punitive or exemplary damages there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Southern R. Co. v. O’Bryan, 119 Ga. 147 (1), 45 S.E. 1000 (1903). Under the circumstances in this case the trial court was authorized to impose punitive damages against Speir. See Patterson v. Castellaw, 119 Ga. App. 712(1), 168 S.W.2d 838 (1969).

Similarly, in Patterson v. Castellaw, 168 S.E.2d 838 (1969), the same court in an action for deceit held an insurance broker was liable for compensatory and punitive damages to a plaintiff by accepting an insurance premium and causing him to believe his automobile was covered against theft when in fact it was not. The broker was found to have willfully misrepresented to a second broker, also acting for the plaintiff in attempting to secure coverage, that he had placed a binder on the automobile which was knowingly false and made to induce placement of the insurance through his own firm.

The Supreme Court of Alabama in Proctor Agency, Inc. v. Anderson, 358 So. 2d 164 (1978), set aside an award of punitive damages against an insurance agent who, when asked by his insured if he was covered for the costs of corrective surgery for an inguinal hernia under his policy with St. Paul Fire & Marine, told the insured to go ahead and have the operation. Coverage was denied by St. Paul and a jury awarded punitive damages which the Supreme Court disallowed, saying there was no evidence the agent’s misrepresentation was committed with an intention to injure and defraud. But, significantly, the opinion recognizes that punitive damages will lie where, as here, an agent misrepresents coverage with an intention to injure or deceive the insured.

In sum, I believe the majority opinion errs in concluding that an agent who is guilty of intentionally dishonest acts against his principal for his own gain cannot be punished by punitive damages if the suit is basically for breach of contract; in necessarily concluding, though without discussion of the issue, that the trial court lacked discretionary power to treat the pleadings and proof as sounding in tort rather than in contract; and, in effect, disregarding the fact that punitive damages are intended to punish a wrongdoer rather than to compensate an injured party. Ray Dodge v. Moore, 251 Ark. 1036, 479 S.W.2d 518 (1972); Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961); Dunaway v. Troutt, 232 Ark. 615, 339 S.W.2d 613 (1960).

I would affirm the judgment.


text:
    SOUTHERN STEEL AND WIRE COMPANY v. Jim WOOTEN, Director, Department of Finance and Administration et al
    81-261
    631 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered May 3, 1982

      Bethell, Callaway é1 Robertson, by: Bruce H. Bethell, for appellant.

      James R. Eads, Jr.; H. Thomas Clark, Jr.; Timothy J. Leathers; Robert J. DeGostin, Jr.; Cassandra Wilkins-Slater; Wayne Zakrewski; Kelly S. Jennings; John H. Theis; by: Joseph V. Svoboda, for appellees.
   Frank Holt, Justice.

The appellee assessed appellant with a use tax on various items it had purchased. Following an administrative hearing affirming the assessment, appellant filed a complaint in chancery court seeking a refund in the amount of the taxes it had paid under protest. The chancellor affirmed the assessment on certain machinery, equipment and chemicals.

Appellant produces steel wire products primarily for the refrigeration and freezer industry. It purchases wire, then straightens, cuts, forms, and welds the wire to obtain a finished product. The wire shelves produced are finished with either zinc plating or an electrostatic powder-plastic coating. In the electrostatic power-coating process, the wire shelves are passed through a spray booth where apoxic powder is sprayed on and induced with a 60,000 volt electrical charge, which causes the powder to cling to the shelves. The shelves are then baked so that the powder forms a permanent finish. An ultraviolet detection system monitors the electrostatic equipment.

Appellant first asserts that the chancellor erred in finding the ultraviolet system, purchased for $8,054.23, was not exempt from taxation. It argues the equipment meets the requirement of machinery or equipment used “directly in the actual manufacturing or processing operation . . . . ” Ark. Stat. Ann. § 84-3106 (D) (2) (c) (Repl. 1980). That subsection reads in pertinent part:

It is the intent of this subsection to exempt only such machinery and equipment as shall be utilized directly in the actual manufacturing or processing operation .... The term ‘directly’ as used in this Act is to limit the exemption to only the machinery and equipment used in actual production during processing, fabricating or assembling raw materials or semifinished materials into the form in which such personal property is to be sold in the commercial market....

The electrostatic equipment was purchased following an explosion within the system. It serves two functions — (1) it ■ is a safety monitor, which acts to shut down the powder-coating system in the event a spark or fire is detected in the system; and (2) it provides a printout analyzing the performance of the powder-coating process. Although the powder coating system operates normally 99% of the time, appellant considered the ultraviolet system as being vital and necessary in monitoring the entire system.

Appellee responds that neither function demonstrates that the detection system meets the requirements of § 84-3106 (D) (2) (c). Appellee characterizes the ultraviolet detection system as a “burglar alarm” which operates only in the event of a fire. Further, as a monitoring apparatus, it merely is an “information device” which is not used directly in the manufacturing process.

In Cheney v. Georgia Pacific Paper Corp., 237 Ark. 161, 371 S.W.2d 843 (1963), we held that informational devices used to record the functioning of other equipment were not exempt. Further, we have said it is well established that any exemption provision must be strictly construed against the exemption, and to doubt is to deny the exemption. S.H. & J. Drilling Corp. v. Qualls, Director, 268 Ark. 71, 593 S.W.2d 178 (1980); and Ark. Beverage Co. v. Heath, Director, 257 Ark. 991, 521 S.W.2d 835 (1975). The appellant has the burden of clearly establishing the exemption beyond a reasonable doubt. Heath v. Westark Poultry Processing Corp., 259 Ark. 141, 531 S.W.2d 953 (1976). On appeal we review the exemption cases de novo and do not reverse the chancellor’s findings of fact unless it is clearly against the preponderance of the evidence. Ark. Beverage Co. v. Heath, Director, supra. Here, tested by these rules we cannot say that the chancellor’s finding that the ultraviolet system is not exempt is clearly against the preponderance of the evidence.

Appellant next contends the chancellor erred in finding that the control panels, air cylinders, and transformers were not exempt from the use tax as “machinery purchased to replace existing machinery in its entirety.” Ark. Stat. Ann. § 84-3106 (D) (2) (b). We cannot agree.

During the period encompassed by the audit, appellant was enlarging its manufacturing plant and increasing production. Component parts necessary to construct control panels were purchased for $74,416.96, which appellee taxed. The control panels are designed from scratch and plugged into a welding machine to control the welding process. Appellant urges that each is a separate piece of machinery and that since these control panels can be utilized with different welding machines and are physically plugged into a welder to achieve the desired results, they are distinguishable from the component parts of a drilling rig which we considered in S.H. & J. Drilling Corp. v. Qualls, supra. There we held that where, the appellant purchased certain items to replace existing items of a drilling rig, even if the individual item was considered a machine within the definition of Heath v. Research-Cottrell, Inc., 258 Ark. 813, 529 S.W.2d 336 (1975), once they were assembled into a rig and are designed to accomplish a single purpose, they become a single unit and are not exempt from taxation. We find that reasoning controlling here. It appears undisputed that the control panels, air cylinders and transformers are physically combined with other existing components in order to construct a welding machine which has a single purpose and function. The control panels and welding machines are interconnected or component parts of welding machines and designed to accomplish a single purpose — welding wire to form shelves. They must function simultaneously as a single unit. The trial court correctly found these items did not constitute replacement of the welding machines in its entirety and, therefore, are not exempt.

Appellant further argues that the chancellor erred in finding zinc anode baskets and plating racks consisting of racks, tips and studs purchased by appellant for $18,461.90 were not exempt from the use tax as machinery or equipment used directly in the manufacturing process. These items conduct electricity necessary to perform the zinc-plating process and are connected to the conveyor system. The zinc anode baskets also hold the zinc chemical. Appellant argues these items are machinery and used directly in the manufacturing process. We feel these items, component parts of the plating machine, are not exempt for the same reason the control panels are not exempt. They have no independent function. They are interconnected with the zinc plating machine to accomplish a single purpose. See S.H. & J. Drilling Corp. v. Qualls, supra. Appellant has not met its required burden of proof. To doubt is to deny.

The appellant next asserts the chancellor erred in finding an analytical PH recorder purchased for $500.80 was not exempt as machinery or equipment used directly in the manufacturing process. The appellant claims exemption under § 84-3106 (D) (2) (d). That subsection exempts “[machinery and equipment required by State law or regulations to be installed and utilized by manufacturing or processing plants or facilities in this State to prevent or reduce air and/or water pollution or contamination which might otherwise result from the operation of such plant or facility.” Admittedly, this is only a monitoring device. Even so, appellant argues that it is necessary to monitor the discharge of waste materials and chemicals in order to be in compliance with state pollution law. The flaw in this argument is that the PH recorder itself does not “prevent or reduce air and/or water pollution or contamination.” Its purpose is merely to inform the appellant of the level of pollutants present in the waste water discharge. Appellant can then take corrective action. There is no evidence here, as there was in Heath v. Research-Cottrell, supra, that this or any other equipment actually prevented or controlled pollutants in the waste materials. Here, again, when we apply our well established standards of appellate review in tax exemption cases, we cannot say that the chancellor’s finding is clearly against the preponderance of the evidence.

Neither do we agree with appellant’s last contention for reversal that the chancellor erred in finding that certain chemicals purchased by it were not entitled to exemption from the use tax as items purchased for resale. The “sale for resale” exemption is § 84-1904 (i), which is made applicable by § 84-3106 (B). Appellant argues that the coating and plating process of the finished article could not be properly completed and marketable without these chemicals and, therefore, they constitute an essential part of the finished product and are necessary to its completeness. The appellee correctly responds that the chemicals used in the manufacturing process become neither a recognizable or integral part of the finished shelves. It.appears that the chemicals are merely cleansing agents in the manufacturing process which are used at separate rinsing stages to remove not only chemicals but also dirt and oil accumulations from the unfinished shelves. In the circumstances, when we strictly construe, as we must, tax exemptions against the claimant, we certainly cannot say that the chancellor’s finding that these items are not exempt under “sale for resale” exemption, § 84-1904 (i), is clearly against the preponderance of the evidence. Great Lakes Chem. v. Wooten, 266 Ark. 511, 587 S.W.2d 220 (1979); and Hervey v. Internat’l. Paper Co., 252 Ark. 913, 483 S.W.2d 199 (1972).

Affirmed.


text:
    Lamar HALL, Executor v. Helen Strohl HALL
    82-9
    631 S.W.2d 838
    Supreme Court of Arkansas
    Opinion delivered May 3, 1982

      Randall L. Gammill, for appellant and cross-appellee.

      House, Holmes é Jewell, P.A., by: Philip E. Dixon and Daryl G. Raney, for appellee and cross-appellant.
   Darrell Hickman, Justice.

The question to us on appeal is the ownership of an $18,000 certificate of deposit and a $5,000 savings account. The same question was presented to the trial court after both parties moved for summary judgment on what can be fairly said are agreed facts.

The certificate of deposit was originally issued in the names of Charles L. Hall or Helen Hall, who were husband and wife. Subsequently, Charles L. Hall, without the knowledge of his wife, Helen, asked the bank to change the certificate and her name was deleted upon his oral request. The probate court held that this was an improper change according to statutory law and the issuance of the certificate to Mr. and Mrs. Hall created an estate by the entirety; thus, Mrs. Hall was entitled to the proceeds since Mr. Hall was deceased. The $5,000 savings account was opened in Charles L. Hall’s name alone, at the same time the certificate was issued. The court held that this account was the property of Charles L. Hall’s estate since it was initially opened in his name only. Both Mrs. Hall and the estate appeal from the probate judge’s ruling; each party is seeking all the money. We affirm the trial court.

Charles L. Hall and Helen Hall were married April 7, 1977. In September of 1977, Mr. Hall had his individual checking account at the First State Bank of Lonoke changed to a joint account in the name of “Mr. or Mrs. Charles L. Hall (Helen L.).’’ On April 11,1978, he purchased a $30,000 certificate of deposit in the name of “Charles L. or Helen L. Hall.” He told Mrs. Hall he had placed $30,000 in savings in both names. The certificate matured in April, 1979, and Charles L. Hall cashed it for $31,840.00 and purchased a new certificate of deposit for $25,000.00. It was issued just like the former certificate. The balance of the money was deposited in the joint checking account. The $25,000.00 certificate matured in October, 1979, and the maturity sum, $26,059.59, was deposited in their joint checking account. The next day, Mr. Hall drew a $23,000.00 check on their account and purchased the $18,000.00 certificate of deposit in question. With the remaining $5,000.00 he opened the individual savings account in question in his name only.

Mrs. Hall said she was shown the $18,000.00 certificate, and saw both their names on it. She said Mr. Hall placed it in a drawer, specifically telling her that it was there if she ever needed it or wanted it. She said it was only after his death that she examined the certificate and found it had been changed. Unknown to his wife, Mr. Hall had taken the certificate to the bank and requested a bank official to alter it to read Charles L. Hall. Her name was erased and the certificate altered to so read. It was initialed by the bank official.

It was undisputed that the money used to buy all these certificates was Mr. Hall’s funds; Mrs. Hall made no contributions at all. While she wrote a check occasionally, Mr. Hall managed the checking account. She did not allege she was denied access to any of these transactions.

The trial court was right in holding that the alteration of the certificate of deposit was contrary to law. Ark. Stat. Ann. § 67-552 (g) requires that in order to change the designee of an account there must be written directions accepted by the banking institution. Lovell v. Marianna Federal Savings & Loan, 264 Ark. 99, 568 S.W.2d 38 (1978). There is no doubt the Halls held the certificate as tenants by the entirety, and since that estate was not legally changed, it remained so. The proceeds are Mrs. Hall’s. But the estate argues that Ark. Stat. Ann. § 67-552 requires written instructions before such an estate can be created in such an instrument, and since there were no written instructions to the bank to issue these instruments, no estate by the entirety was ever created. We held in Cook v. Bevill, 246 Ark. 805,440 S.W.2d 570 (1969) that no such instructions are necessary when issuance is to husband and wife.

The $5,000.00 savings account was properly issued in Mr. Hall’s name only; it was never altered and the trial court held that it belonged to the estate. Mrs. Hall argues that since the checking account was in the name of Mr. & Mrs. Hall, it was their joint property as were the certificates of deposit bought from the funds in that checking account; therefore, the funds got from the redemption of the $25,000.00 certificate of deposit, $5,000.00 of which was deposited in Charles Hall’s savings account, were also joint property. Mr. Hall properly drew the checks on their checking account to purchase the certificates and those certificates were properly issued and redeemed. Mr. Hall opened the savings account with part of those funds and, therefore, the account was not illegally or improperly created. Mrs. Hall was never denied access to the checking account and the last transactions occurred over five months before Mr. Hall died. She certainly could have known of all the transactions regarding the checking account if she chose to. See Lovell v. Marianna Federal Savings & Loan, supra. Based on such a state of undisputed facts the trial court properly ruled that as a matter of law the savings account was not jointly held and was the property of the estate.

The estate argues that the probate court did not have jurisdiction since this was a dispute over the title to the accounts, a subject for litigation in chancery court. This argument is premised on the fact that since Mrs. Hall could not receive her dower interest because of our decision in Hall v. Hall, 274 Ark. 266, 623 S.W.2d 833 (1981), she was a stranger to this action and, therefore, any dispute between her and the estate belonged in chancery. The simple fact that Mrs. Hall was denied certain rights by operation of law did not make her a legal stranger to this case. She was still his widow and the claim was properly adjudicated by the trial court.

Affirmed.


author: John I. Purtle, Justice.

text:
    Vivian HAY et al v. Joe SCOTT and Rita SCOTT, d/b/a/ THE WISHING WELL
    82-52
    631 S.W.2d 841
    Supreme Court of Arkansas
    Opinion delivered May 3, 1982

      Laser, Sharp, Haley, Young ér Huckabay, P.A., for appellants.

      John Harris Jones of Jones ir Petty, for appellee.
   John I. Purtle, Justice.

A trial court jury found against the appellants’ claim that an overloaded extension cord caused a fire which damaged a business known as The Wishing Well and spread to businesses known as The Gift Box, B G’s Fashions, Inc., The Frame House and Mike R. Lawyer. Apparently, other businesses located in the East Plaza Shopping Center, in the vicinity of the Wishing Well, filed suits against the appellees. All suits were consolidated for trial.

On appeal it is argued: (1) the trial court erred in failing to strike the testimony of Joe Scott as to the electrical origin of the fire because he was not qualified as an expert in electricity nor fire causation and that there was no foundation for his testimony; (2) the trial court erred in allowing the testimony of Homer Justice for the same reasons set out in point one above; (3) the trial court erred in admitting certain photographs into the record; and, (4) the trial court erred in failing to allow appellants’ expert witnesses to testify as to the appellees’ exercise of reasonable care. We do not agree with the appellants on any of the four points argued for reversal.

A fire originated in the business known as The Wishing Well and spread to adjacent businesses. The other tenants in the shopping center adjacent to appellees’ business filed a complaint alleging the appellees negligently caused the fire resulting in damage to their property. The primary issue in the court below was whether the appellees negligently selected and used an inadequate extension cord which caused the fire.

We will first deal with the argument that appellees’ witnesses, Joe Scott and Homer Justice, were not qualified to testify on the subject matter. Mr. Homer Justice testified that he had been an active electrician for more than 40 years, and that he was presently a licensed master electrician and had been so licensed for 15 to 20 years. Some of the jobs that he had worked on as an electrical supervisor or contractor were Simmons Bank, National Bank, Woolworth, Southern Federal, Pinecrest Cotton Mill, Hudson Pulp, Weyerhaeuser, and various schools in the Pine Bluff area. He further testified that he graduated from an electrical school in Chicago in 1939. Following graduation he wired R.E.A. houses, Jacksonville Ordinance Plant, Pine Bluff Arsenal, Ford Leonardwood, Missouri, and Camp Walters, Texas. He also testified he operated his own company for eight or nine years. Before that he was employed by A & M Electric and Fagan Electric. His duties generally included being in charge of electrical installation in the buildings being constructed.

Joe Scott was vice-president of Pine Bluff Heating and Air Conditioning, having been in the heating and air conditioning business about 20 years. Mr. Scott attended a vo-tech school and received electrical refrigeration training. Some of the heating and air conditioning installations that he supervised in the Pine Bluff area were Simmons Bank, Simmons East, many branch banks in Pine Bluff, NBC at Broadmoor, Broadmoor Theaters, five White Hall schools and four schools in Dumas, plus a number of apartments in Little Rock and the Four-H building in Ferndale. He estimated that 90% of the knowledge required for heating and air conditioning was electrical knowledge. He stated that he had an appliance license to do internal wiring, including high voltage 440 and whatever might be in the appliance to the point of the receptacle. Primarily his work commenced at the receptacle and extended to the various appliances.

In Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980), we stated:

It is well-settled that the determination of the qualifications of an expert witness lies within the discretion of the trial court, and his decision will not be reversed unless that discretion has been abused.

Uniform Rules of Evidence, Rule 702, in regard to expert testimony, states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Rule 704 in regard to opinions on the ultimate issues, states:

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

Rule 705 in regard to disclosure of facts or data underlying the expert opinion, states:

The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Considering the above rules of evidence and the case quoted, it is obvious that the judge properly exercised judicial discretion in allowing these witnesses to testify as they did. Also, we think he properly refused the appellants’ request to strike the testimony for the reason that these two witnesses were not qualified to testify about the matters under consideration.

The appellants also argue the court erred in allowing certain photographs to be introduced. Neither the maker of the photographs nor the person who had placed two red arrows on them were present or testified. The photographs were admitted on the basis of the testimony of Rita Scott that the photographs were an accurate representation of what The Wishing Well looked like on July 30,1979, the day after the fire. The two arrows on the photographs objected to were marked in red and pointed to the receptacle area where the extension cord had plugged into the wall. In Higdon v. State, 213 Ark. 881, 213 S.W.2d 621 (1948), we stated:

The admission and relevancy and materiality of photographs is left to the discretion of the trial judge...

In McGeorge Construction Co. v. Mizell, 216 Ark. 509, 226 S.W.2d 566 (1950), we held that the validity of photographs introduced into evidence was not objectionable merely because the witness did not take the pictures and was not present when they were taken. We stated that the test of whether photographs are admissible into evidence depends on the fairness and correctness of the portrayal of the subject. We also stated in McGeorge that the admissibility of photographs addresses itself to the sound discretion of the trial judge. We will not disturb such a ruling unless there is an abuse of discretion.

Appellants have failed to show that the photographs were misleading or prejudicial in any manner. In fact, it is obvious that they would be an aid to the jury in understanding much of the testimony presented to them. The red arrows simply point to the area where all witnesses agree the fire originated. The expert witnesses for appellees essentially testified that the fire started in the receptable and the expert witnesses for the appellants testified the fire originated in the extension cord near the receptacle where it plugged into the wall. Therefore, we think the court did not abuse its discretion in allowing the photographs to be introduced into evidence.

Finally, the appellants argue it was error for the court to refuse to allow their expert witnesses to testify that appellees did not use reasonable and ordinary care in using the extension cord to operate the refrigerator and coffee pot. The testimony was proffered and appears to be proper. As stated in Rule 704 expert testimony is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. Immediately after the proffer of this evidence in chambers the appellants’ witness, Charles McKenny, took the stand and testified to the following as abstracted by appellants:

My opinion that the use of this extension cord was not reasonable or proper was based on the statements I read in the reports and everything. ... that gives me reason to believe that they weren’t exercising a due amount of care on it. I don’t know what had happened to the refrigerator before or what happened to it at this time. I’m saying that the fire started at the end of the cord by that shelf from overheating caused by an excessive pull of current. *## In my opinion, the cause of the fire was overloading of that cord.

The other expert witness after proffering his testimony testified before the jury as follows, according to appellants’ abstract:

In my opinion, the fire began on the white extension cord, 18 gauge, and overheated to the point it fed across and then fed into the board or paneling on the east side, and from there fed up and outward. *** It was heated from an internal to an outward point. *** I am satisfied that the fire started along the extension cord along the storage shelves at the receptacle area for two reasons. One is that the “V” point showed that as the point of origin. The fact that the extension cord in my opinion was burned from the inside out is important. *#* I am both master electrician and the Chief of the Pine Bluff Fire Department... some or all of the acts of Rita Scott just listed were a cause of the fire.

We think any possible error was cured by the skill of the appellants’ attorneys in obtaining exactly the same evidence in subsequent testimony by these witnesses. Therefore, we do not feel there was prejudicial error in the rejection of the proffered testimony.

Affirmed.


text:
    Casell PRIDGETT and Levester WILLIAMS, Jr. v. STATE of Arkansas
    CR 82-28
    631 S.W.2d 833
    Supreme Court of Arkansas
    Opinion delivered May 3, 1982

      James L. Sloan, for appellant Pridgett.

      Robert F. Morehead, for appellant Williams.

      Steve Clark, Atty. Gen., by: William C. Mann, 111, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

Appellants were jointly charged and tried for aggravated robbery and theft of property at a Safeway store in Pine Bluff. While they were jointly charged, tried and convicted, the state’s cases against them are vastly different. We affirm the convictions of appellant Levester Williams, Jr., and reverse and dismiss the convictions of appellant Casell Pridgett.

The evidence established that two men, later positively identified as appellant Levester Williams, Jr., and a third person entered the store on August 25, 1979, around 10:50 p.m. and, after pushing their grocery cart to the checkout stand, at gunpoint forced the employees to open the safe. They then took money and fled from the store.

Just after 10:00 p.m., or approximately 45 minutes before the robbery, a witness saw a white Lincoln automobile headed west at 30th and Hazel Streets going toward the Safeway store which is located at 28th and Hazel Streets. The witness testified that the same car went by the intersection of 30th and Hazel Streets at least three times between 10:00 and 10:30 p.m. The car was driven by an unidentified black man. The witness testified that the car’s license plate number was DZE 050, but the witness was uncertain about the E. Appellant Casell Pridgett, a black male, owned a white Lincoln with the license plate number DZC 050. Five days after the robbery Casell Pridgett’s car was seen on a Piggly Wiggly grocery store parking lot in Stuttgart, which is approximately 40 miles from Pine Bluff. The Stuttgart police stopped the car and found appellant Pridgett, appellant Williams and the other subsequently identified robber in the car along with a fourth person. At trial, Pridgett took the stand and denied any part in the robbery and theft. The jury returned a guilty verdict and sentenced Pridgett to fifteen years in prison for the aggravated robbery conviction and seven-and-one-half years for the theft of property. We reverse and dismiss. Williams was sentenced to twenty years for the aggravated robbery charge and ten years for the theft of property. We affirm.

Pridgett contends that the evidence is insufficient to sustain the verdict against him. We agree. Viewing the evidence most favorably to the state we find no substantial evidence to support the jury verdict. Only two men entered the store and took part in the robbery. They were both identified and Pridgett was neither one of them. There was no proof that the robbers used an automobile in their arrival or their escape. The only evidence positively identifying Pridgett with the crime is his association with the participants at a time, five days, and a place, 40 miles, remote from the offense. This case is wholly different from those cases in which evidence to connect the accused with a crime is his proximity to the scene and timely association with a person involved in a manner suggestive of joint participation. E.g. Vaughn and Wilkins v. State, 252 Ark. 505, 479 S.W.2d 873 (1972), distinguished in Redman v. State, 265 Ark. 774, 784, 580 S.W.2d 945(1979).

The evidence is strong that Pridgett’s automobile was seen three times at 30th and Hazel Streets heading west toward the Safeway store at 28th and Hazel Streets at about the time of the robbery, but there is no proof that Pridgett was driving the car, that an automobile was used in the crimes, or that more than two persons participated in the robbery. The evidence, wholly circumstantial, falls short of establishing anything more than a suspicion of Pridgett’s guilt. The verdict is not supported by substantial evidence and the jury had to reach its conclusion by resorting to speculation or conjecture. When a verdict is based solely upon speculation or conjecture, we reverse. Abbott v. State, 256 Ark. 558, 508 S. W. 2d 733 (1974). Therefore we reverse the convictions and dismiss the charges against appellant Casell Pridgett.

Appellant Levester Williams, who was identified by eyewitnesses as one of the two robbers, contends that the trial court “erred in not excluding the identification testimony and evidence being tainted and again in so doing without an in-camera voir dire of identification witnesses.” There was no motion to suppress the identification evidence nor was there any objection to the identification testimony. The issue was never presented to the trial court, is raised for the first time on appeal, and is not properly before this court. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980).

Williams also contends that the evidence is insufficient to sustain the verdicts. There was substantial evidence against Williams since eyewitnesses positively identified him as one of the two armed robbers. The jury chose to believe the testimony was reliable. The assessment of the reliability of witnesses is the very task our system assumes juries can perform. We affirm the convictions of Levester Williams, Jr.

Affirmed as to Levester Williams, Jr.

Reversed and dismissed as to Casell Pridgett.


text:
    Gardner SMITH, Jr. v. STATE of Arkansas
    631 S.W.2d 835
    Supreme Court of Arkansas
    Opinion delivered May 3, 1982

      Charles P. Allen, for appellant.

      Steve Clark, Atty. Gen., by. Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Gardner Smith, Jr., by his attorney, has filed for a rule on the clerk.

His attorney, Charles P. Allen, has attached an affidavit admitting that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

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