author: P. A. Hollingsworth, Justice. Webb Hubbell, Chief Justice, Robert H. Dudley, Justice,

text:
    George D. CAMMACK, et al v. Hugh B. CHALMERS, et al
    83-224
    680 S.W.2d 689
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      Daily, West, Core, Coffman and Canfield, for appellants.

      Friday, Eldredge ¿r Clark, for appellee.
   P. A. Hollingsworth, Justice.

In 1957, Kate G. Cammack, now deceased, conveyed forty acres of land within the City of Little Rock to the Board of Trustees of the University of Arkansas. A separate contract delivered simultaneously with the deed stipulated among other matters that the Trustees would develop the property into the University’s “Cammack Campus.” Appellants, the sole devisees and heirs at law of Mrs. Cammack, contend that Mrs. Cammack’s gift resulted in a charitable trust and that the Trustees have so unreasonably delayed fulfilling the terms of the trust that it has now become impossible and impracticable to carry out its purpose. Therefore, the appellants contend, the forty acres should be divested from the University and given to them.

From the decree of the Chancery Court ordering title to the property to remain in the Board of Trustees for the University of Arkansas, subject to the performance of certain trust obligations with the Trustees given until January 1, 1997, to demonstrate their good faith intentions, the appellants appealed. The appellees in their cross-appeal, state that the trial court should have dismissed the appellants’ claim under Ark. Const, art. 5, § 20. The appeal is before us pursuant to Rule 29 (l)(f) as it involves an injunction directed to state officials. Also Rule 29 (4) is applicable because an issue of significant public interest is involved.

We reach a limited decision today that does not allow the University of Arkansas Trustees to ignore their commitments to donors. The appellees, University of Arkansas Trustees, request that we hold this suit cannot be maintained under Ark. Const, art. 5, § 20. It declares, "The State. . .shall never be made defendant in any of her courts.” We view our cases as allowing actions that are illegal, are unconstitutional or are ultra vires to be enjoined. The legislature designates the Board of Trustees of the University as the corporate entity capable of being sued. Ark. Stat. Ann. § 80-2804 (Repl. 1980) and § 64-1907 (Repl. 1980). We have recognized that officers of state agencies may be enjoined from acts which are ultra vire,s, in bad faith or arbitrary. Toan, Comm’r. v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980); Arkansas State Game and Fish Comm’n v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974); and Harkey v. Matthews, 243 Ark. 775, 422 S.W.2d 410 (1967). The chancellor’s finding that he had jurisdiction to enjoin the action of the University of Arkansas Trustees under the facts of this case is consistent with views we have previously expressed.

Appellants maintain that they are entitled to a judgment by default. The facts are as follows: Appellants filed the complaint on August 7, 1979, and appellees filed a timely special appearance and motion to dismiss. The trial court overruled the motion on August 29, 1980 and requested precedents from both parties for a proposed order. After receiving copies of precedents from both parties, the chancellor entered his order on November 17, 1980, overruling appellees’ motion to dismiss and giving appellees twenty-five days from notice of the order to answer. Due to circumstances in the clerk’s office, the appellees did not receive a copy of the order. On February 4, 1981, counsel for appellants notified counsel for the appellees that the order had been entered and volunteered to send a copy to him. Counsel for appellees never received a copy of the order and did not file an answer within twenty-five days of notice by appellants’ counsel that the order had been entered. A responsive pleading was filed by appellees on April 10, 1981. The chancellor denied the motion of appellant for default judgment. We have held in Burns v. Shamrock Club, 271 Ark. 572, 609 S.W.2d 55 (1980), that:

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

Furthermore, ARCP Rule 55 provides that a default judgment should be entered when a party “fails to appear or otherwise defend.” Here, the appellees defended when they filed their motion to dismiss. This holding is also consistent with Ark. Stat. Ann. § 27-1160 (Repl. 1979) which provides that, “The court must in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” There was no prejudice to these appellants by the appellees’ delay in filing their answer.

The appellants also contend that the trial court’s finding that it is not yet impossible to carry out the wishes of Mrs. Cammack is clearly against the preponderance of the evidence. The appellants base their argument on the fact that Edward Stone, the architect selected by Mrs. Cammack, has since died. The chancellor held:

While it is no longer possible to employ Edward Stone to perform the architectural work, the charitable purpose of the trust was not to provide employment for Mr. Stone. Mrs. Cammack realized Mr. Stone’s services might not be available and the availability of Mr. Stone was not essential to the fulfillment of the trust.

The chancellor’s findings will not be reversed unless they are clearly erroneous. Hughes v. Gibbs, 282 Ark. 488, 669 S. W.2d 451 (1984). We do not find that the chancellor’s holding was clearly erroneous.

We next address the cross-appeal of the appellees and their contention that the chancellor erred in concluding that Mrs. Cammack, with the deed and accompanying agreement, created an express charitable trust for a particular, not general, charitable purpose. It is undisputed that there is no mention in the agreement or in the deed of a reversionary interest. Restatement (Second) Trusts § 349 (b) provides that a charitable trust may be created by “a transfer inter vivos by the owner of property to another person to hold it upon a charitable trust.” Section 413, comment 1 concerns the failure of a charitable trust. It provides that:

if the settlor manifested an intention to restrict his gift to the particular charitable purpose designated, and it is or becomes impossible or impracticable or illegal to carry out the particular purpose, the trust fails and the trustee holds the property upon a resulting trust for the settlor or his estate.

The chancellor found that Mrs. Cammack clearly limited the use of the property to the educational and cultural program of the University. This was the specific charitable purpose. Therefore, the chancellor correctly held that if the Board fails to demonstrate its good faith intentions to develop the Cammack property by 1997, the property shall revert to the appellants. It was within his discretion to establish the 1997 deadline to best effectuate the charitable purpose of Mrs. Cammack’s gift.

The lower court felt that it is time to decide this case on the merits and quoted an excerpt from our decision in Foot’s Dixie Dandy v. McHenry, Adm’r. 270 Ark. 816, 607 S.W.2d 323 (1980):

Justice Holmes made the remark many years ago that “Men must turn square corners when they deal with the government.” Rock Island, Arkansas & Louisiana R.R. v. United States, 254 U.S. 141, 143 (1920). Years later, two commentators added the logical corollary to Holmes’ remark: “It is hard to see why government should not be held to a like standard of rectangular rectitude when dealing with its citizens.” McGuire & Limet, Hobson’s Choice and Similar Practices in Federal Taxation, 48 Har. L. Rev. 1281,1299 (1935). We agree with both ideas.

We agree and affirm on the direct appeal and cross-appeal.

Affirmed.

Hubbell, C.J., concurs.

Dudley, J., and Special Justice Albert Graves Sr., dissent.

George Rose Smith, J., not participating.

Webb Hubbell, Chief Justice,

concurring in part; dissentingin part. In order to reach a just result, the majority modifies Art. 5, § 20 of the Arkansas Constitution. Governmental immunity is generally a product of the common law, having been “derived by implication.” Keifer & Keifer v. R.F.C., 306 U.S. 381 (1939); Monaco v. Mississippi, 292 U.S. 313 (1934). However, immunity in Arkansas is constitutionally mandated by Art. 5, § 20, and cannot be cast aside at the whim of the judiciary. The constitution is “not an enabling, but a restraining act” [Straub v. Gordon, 27 Ark. 625 (1872)], and the duty of the judiciary is to uphold it. Muncrief v. Hall, Secretary of State, 222 Ark. 570, 262 S.W.2d 92 (1953).

We could reach the same result by upholding the trial court’s finding that a charitable trust was created by Mrs. Cammack’s bequest. The University Trustees are then additionally trustees of this separate charitable trust, and they act or fail to act not as representatives of the State but as trustees of Mrs. Cammack’s charitable trust. We need not reach governmental immunity.

Also, the chancellor cannot impose a reverter to the heirs. State ex. rel. Atty. General v. Van Buren School Dist. No. 42, 191 Ark. 1096, 89 S.W.2d 605 (1936). In the event of the Board’s failure to develop the bequest within a reasonable period of time, the trustees may be removed and new ones appointed to comply with the terms of the charitable trust.

Robert H. Dudley, Justice,

dissenting. In 1957 Kate G. Cammack, now deceased, made an inter vivos gift of land within the City of Little Rock to the Board of Trustees of the University of Arkansas. A separate contract delivered simultaneously with the deed stipulated that the Trustees would develop the property into the University’s “Cammack Campus.” Appellants, the sole devisees and heirs at law of Kate Cammack, contend that the gift resulted in a charitable trust and that the Trustees have so unreasonably delayed fulfilling the terms of the trust that it has now become impossible and impracticable to carry out its purpose and therefore, appellants contend, the forty acres should be divested from the state and vested in them.

The Chancery Court ordered that title to the property should remain in the Board of Trustees of the University of Arkansas trustees until January 1, 1997, and, if the trustees do not demonstrate their good faith in developing Cammack Campus by that time, the land should be divested from the state and vested in appellants. The appellees have filed a cross-appeal advancing, among other points, the sovereign immunity clause.

Article 5, § 20 of the Constitution of the State of Arkansas declares: “The State . . . shall never be made defendant in any of her courts.” This court has expressly held that a suit against the Board of Trustees of the University of Arkansas is a suit against the State. State Comm’r of Labor v. University of Arkansas Board of Trustees, 241 Ark. 399, 407 S.W.2d 916 (1966). This decision is in accord with our earlier decisions interpreting Arkansas’ sovereign immunity clause. In The Engineering Co. v. Kays, 106 Ark. 174, 152 S.W. 992 (1913), a case precisely in point, held that a replevin suit against the trustees of the predecessor institution to Arkansas State University to recover fixtures was a suit against the State. In that case we stated:

Appellees have no interest, whatever, in the property, in their individual capacity, nor connection with it, except as representatives of the State as trustees of said school. The school, itself, is but a governmental agency not authorized by the Statutes to sue and be sued and the recovery is sought under the terms of the contract made with this governmental agency necessarily involving its rights and being in effect and in fact but a suit against the State. No relief is sought against appellees in their individual capacity and none can be had against them as representatives of the agency of the State and its sovereignty, for our Constitution declares: “The State of Arkansas shall never be made defendant in any of her courts.”

Id. at 177, 152 S.W. at 993. In Watson v. Dodge, 187 Ark. 1055, 63 S.W.2d 993 (1933), we held that any suit which has the direct or indirect purpose and effect of coercing the State is one against the state. The court quoted Hagood v. Southern, 117 U.S. 52 (1885), which stated:

Though not nominally a party to the record, it (the State) is the real and only party in interest, the nominal defendants being the officers and agents of the State, having no personal interest in the subject-matter of the suit, and defending only as representing the State. And the things required by the decrees to be done and performed by them are the very things which, when done and performed, constitute a performance of the alleged contract by the State. The State is not only the realy party to the controversy, but the real party against which relief is sought by the suit.

The Supreme Court of the United States reviewed our decisions in Arkansas v. Texas, 346 U.S. 368 (1953). That Court followed our cases and stated:

The University which was created by the Arkansas legislature, is governed by a Board of Trustees appointed by the Governor with consent of the Senate. The Board, to be sure, is “a body politic and corporate” with power to issue bonds which do not pledge the credit of the State. But the Board must report all of its expenditures to the legislature, and the State owns all the property used by the University. The Board of Trustees is denominated “a public agency” of the State, the University is referred to as “an instrument of the State in the performance of a governmental work”, and a suit against the University is a suit against the State.

Id. at 370.

In the case at bar, the Board of Trustees is once again made a party to a lawsuit, the direct effect of which would be to deprive the State of property — the forty acres. The trustees have no interest whatever in this property individually. Their sole connection with the property has been as representatives of the State in their capacity as University trustees. By precedent of all of our cases, this is a suit in which the State is the real party and, therefore, it cannot be maintained.

The majority opinion refers to three opinions of this court as authority for maintenance of this suit. Those cases are not fairly applicable. They hold that equity may restrain acts of public officers or agencies which are beyond the scope of their authority, but if the public officers or agencies have authority to act the suit may not be maintained. Toan, Comm’r v. Falbo, 268 Ark. 337, 595 S.W.2d 936 (1980); Arkansas Game & Fish Comm’n v. Eubank, 256 Ark. 930, 512 S.W.2d 540 (1974); Harkey v. Matthews, 243 Ark. 775, 422 S.W.2d 410 (1967). The Board of Trustees of the University of Arkansas has the authority to manage the University’s property and its actions are not beyond the scope of its authority. The majority opinion does not dispute this. Equally as significant, this is not a suit for an injunction. It is a suit to take the land from the State. The State is the real party to the controversy, and the real party against which relief is sought.

The majority have chosen not only to ignore article 5, § 20 of the Constitution of Arkansas and our cases construing it, but to do so without explanation. Two of the results are an unenunciated philosophy of jurisprudence and uncertainty in the law. Examples of each are: under what circumstances are clear constitutional provisions usurped by this court’s concept of fairness and, can a suit against the state be maintained for monetary damages as well as for real estate? I would reverse on cross-appeal because of the sovereign immunity clause of the Constitution.

I am authorized to state that Special Justice Albert Graves, Sr. joins in this dissent.


source: Caselaw Access Project

author: P. A. Hollingsworth, Justice. Darrell Hickman, Justice,

license: Public Domain

text:
    Tom TAYLOR, Gary LAWSON, James H. WYLIE, Ray A. WATERS, Jr. and Phillip J. FOSTER v. Bill CLINTON, Governor, Steve CLARK, Attorney General, and Paul RIVIERE, Secretary of State, Constituting the Board of Apportionment of the STATE of Arkansas
    84-118
    680 S.W.2d 98
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      James F. Lane, for petitioners.

      Steve Clark, Att’y Gen., by: R. B. Friedlander, Deputy Chief of Staff, for appellee.
   P. A. Hollingsworth, Justice.

This is an original action in the Supreme Court of Arkansas for a Writ of Mandamus ordering the Board of Apportionment of the State of Arkansas, and its individual members, to redistrict the legislature so that each county would have at least one representative. Each of the petitioners attempted to file nominating petitions with the Secretary of State to become independent candidates for the Arkansas House of Representatives for his resident county only. Each petition was filed prior to the deadline. All of the petitions were refused. This action is brought by petition pursuant to Ark. Const, amend. 45, § 2. The respondents contend that the petition was not timely filed and that it fails to state a cause of action according to the equal protection clause of the fourteenth amendment of the Constitution of the United States.

We believe that the petition must be denied for the below stated reasons.

Upon consideration of the respondents’ first contention that the petition was not timely filed, we have determined that the petition was late. Ark. Const, amend. 45, § 5 gives this Court original jurisdiction only if the application for revision of the apportionment is filed thirty days after the report for apportionment is filed by the Board of Apportionment with the Seretary of State. We have upheld this time limitation, reasoning that it was necessary to give the reapportionment plan a degree of stability and finality. Bizzell v. White, Governor, 274 Ark. 511, 625 S.W.2d 528 (1982).

The report from the Board was filed July 13, 1981. The petitioners filed their petition on April 26, 1984, two and a half years after the report was filed. The petitioners contend that the filing limitation applies only if the petition seeks to revise the apportionment. Rockefeller v. Smith, 246 Ark. 819, 440 S.W.2d 580 (1969). The petitioners argue that the petition in this case is not requesting a revision but rather seeks to order the Board to comply with the amendment by allocating one representative district to each county. However, this argument is erroneous. The petition is requesting a revision of the 1981 reapportionment report. The duty of the Board has been satisfied. Since the petition was not filed within the thirty day time limit, the petition is late according to the language of the amendment.

Respondents assert that the petitioners do not have a cause of action under amendment 45, section 2. We agree. That section states in pertinent part that "the House of Representatives shall consist of 100 members and each county existing at the time of any apportionment shall have at least one representative . . .” This section has previously been held unconstitutional insofar as the boundary lines of the representative districts are concerned. Yancey v. Faubus, 238 F. Supp. 290 (D.C. Ark. 1965). We have also held "county boundary lines may be traversed in the formation of legislative and senatorial districts.” Wells v. White, Governor, 274 Ark. 197, 623 S.W.2d 187 (1981). The underpinning of these decisions was the principle of one man, one vote and the equal protection clause of the fourteenth amendment to the Constitution of the United States. Reynolds v. Sims, 377 U.S. 533 (1964).

A review of apportionment cases is of some value. In Baker v. Carr, 369 U.S. 186 (1962), the Supreme Court held that the constitutionality of a state’s apportionment of its legislature presented a justiciable issue under the equal protection clause of the fourteenth amendment. The following year, the Court invalidated Georgia’s county unit method of electing its governor, holding that under the equal protection clause every voter is entitled to a vote equal in weight to the vote of every other voter in a statewide primary. Gray v. Sanders, 372 U.S. 368 (1963). In Wesberry v. Sanders, 376 U.S. 1 (1964), a case involving congressional apportionment, the Court, acting under U.S. Const, art. I, § 2, declared that the rule of “one man, one vote” is a fundamental idea of democratic government. The holding in Wesberry was that congressional districts must be drawn so as to be approximately equal in population. The next line of cases dealt with the apportionment of state legislatures. In Reynolds v. Sims, 377 U.S. 533 (1964), the first of six state apportionment cases decided on the same day, the Court reinforced the area of justiciability established in Baker v. Carr. The equal protection clause was applied to state legislatures and the Court held that representatives of both chambers must be apportioned by population. Although the Court stated that some divergence in one or both houses would be permissible “incident to the effectuation of a rational state policy,” it was specifically stated that “considerations of area alone provide an insufficient justification for deviations from the equal-population principle.”

The Court mentioned only one factor that might justify minor departures from roughly equal weighting of votes by stating, “A consideration that appears to be of more substance in justifying some deviations from population-based representation in state legislatures is that of insuring some voice to political subdivisions, as political subdivisions. ’ ’ However, this desire to give some voice to each of a state’s political subdivisions seems justified only when they have responsibilities in carrying out state policies and programs.

In Mahan v. Howell, 410 U.S. 815 (1973), the Court upheld a reapportionment plan of the Virginia House of Delegates which followed the county lines with the exception of one. Even though the Court held it was proper for the reapportionment board to consider county lines, the high court pointed out that the primary consideration is the numerical equality of the districts.

The petitioners here believe that the one man, one vote principle is being revised by the Court in recent years and more authority is being returned to the counties. They cite the most recent case, Brown v. Thomson, 103 S.Ct. 2690 (1983), as evidence of the Court’s shift away from the one man, one vote principle toward upholding county lines. In that case, the Court upheld a Wyoming reapportionment plan which was based on the county lines. We think otherwise. The court based its decision on the state constitution, the state’s history, and legislative apportionment history. Wyoming has always apportioned according to the boundary lines. Wyoming counties have been important state administrative vehicles.

Arkansas counties do not hold the position in the state government that Wyoming has given to its counties. The legislature has not been apportioned according to county lines since 1965. Even though the constitutional amendment has a provision for which each county should have at least one representative, that provision has been determined to be unconstitutional. The situation in Arkansas is not analogous to that in Wyoming.

The precise issue in Brown was whether the equal protection clause has been violated by allocating a legislative seat to a county which had a population lower than the average population of the other districts. The Court said it has not, due to the state’s consistent application of this method of apportionment, and the creation of the district did not create the deviations in population equality in the other districts. The Court stated the deviations are the result of a consistent and non-discriminatory application of a legitimate state policy. This reasoning is consistent with the decision in Reynolds.

We also note the dissent in Brown v. Thompson that states the holding today is “extraordinarily narrow,” and “empty of likely precedential value.”

The population of Arkansas counties is varied. Some counties have a relatively small population, whereas Pulaski County is heavily populated. The Board of Apportionment must apportion the legislative districts according to population. To be in compliance with the equal protection clause of the Fourteenth Amendment and Reynolds v. Sims, the districts must be of as nearly equal population as is possible. In order to achieve equal population in the legislative districts, it is necessary to cross the county lines. Wells, supra. Therefore, we must deny the petition.

Writ denied.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I concur in the result, but emphasize three things.

First, the petitioners are not necessarily untimely. If they are, the majority should simply stop there. The challenge is not that the reapportionment for the 1980’s was unconstitutional for violating the “one man, one vote” principle; it is a challenge of the reapportionment based on a recent Supreme Court decision. It is conceivable to me that a constitutional challenge could be made after the thirty day period, alleging extraordinary circumstances. This case does not. We decided in a prior case that the Arkansas constitutional provision for each county to have at least one representative had to give way to the “one man, one vote” principle. Wells v. White, 274 Ark. 197, 623 S.W.2d 187 (1981). That rule has not been altered in the least by the U.S. Supreme Court.

The second point I emphasize is that counties can and should be a consideration, just as natural boundaries can be a legitimate consideration on drawing lines for representatives. See Kelly v. Bumpers, 340 F. Supp. 568 (E.D.Ark. 1972), aff’d., 413 U.S. 901 (1973).

My third point is strictly a personal observation. This is the third suit filed pertaining to the 1980 reapportionment and oddly none have challenged the plan itself. The first suit sought only to realign a few lines in one county. Bizzell v. White, 274 Ark. 511, 625 S.W.2d 528 (1982). The second was a decision on the question before us. Wells v. White, supra. To my knowledge, in the past a suit has been filed challenging the entire plan. See, e.g. Smith v. Bd. of Apportionment, 219 Ark. 611, 243 S.W.2d 755 (1951); Faubus v. Kinney, 239 Ark. 443, 389 S.W.2d 887 (1962); Kelly v. Bumpers, supra. Those cases served a useful purpose. They settled the matter once and for all. For the benefit of those who hold office, seek office and vote, this sort of matter ought to be settled soon. All legitimate questions ought to be answered early so government can proceed without fear of disruption. Also I point out, especially to those responsible for reapportionment, that the primary and only legitimate duty they have is to create districts to serve the electorate — the state. Drawing districts to favor incumbents is not a factor that can be or should be considered. This criticism was leveled at the 1980 plan but never properly presented. I must say some districts do have unusual boundary lines that might support the argument.


author: Per Curiam.

text:
    Ronald HUGHES v. STATE of Arkansas
    680 S.W.2d 101
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      Appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner was charged with first degree murder and tried by a jury. He was found guilty of second degree murder on April 28, 1983, and sentenced to 20 years imprisonment. No appeal was taken. He sought a belated appeal which we denied on February 27, 1984. At that time, we found that petitioner had specifically informed counsel that he did not wish to pursue an appeal.

The motion is denied. A petitioner is not entitled to a subsequent motion once relief has been denied by this Court.

Motion denied.


text:
    Wayne BLACKMON v. STATE of Arkansas
    679 S.W.2d 210
    Supreme Court of Arkansas
    Opinion delivered December 3, 1984

      Tony Sherman, for appellant.
    No response by appellee.
   Per Curiam.

Appellant, Wayne Blackmon, by his attorney, has filed for a rule on the clerk.

His attorney, Tony Sherman, admits that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attoraey 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.

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


author: Webb Hubbell, Chief Justice. Darrell Hickman, Justice,

text:
    ARKANSAS COMMISSION ON POLLUTION CONTROL AND ECOLOGY v. LAND DEVELOPERS, INC.
    83-310
    680 S.W.2d 909
    Supreme Court of Arkansas
    Opinion delivered December 10, 1984
    [Rehearing denied January 14, 1985.]

      Phillip Deisch and James M. McHaney, for appellant.

      Philip W. Ragsdale, and Gibson, Ellis ir Arnold, for appellee Land Developers, Inc.

      Steve Clark, Att’y Gen., by: E. Jeffery Story, Asst. Att’y Gen., for respondent Judge Cole.
   Webb Hubbell, Chief Justice.

Appellee, Land Developers, Inc., made application to appellant, Arkansas Department of Pollution Control and Ecology for a permit to operate a sanitary landfill. Appellant denied the application, and appellee appealed the decision to the Saline County Circuit Court.

In November, 1983, the trial court ordered that the matter would be heard de novo, that either party could supplement the record, and the court would accept such additional evidence as was properly offered. On February 24, 1984, the circuit court ruled that the appellant was without authority to deny the permit and that it should immediately issue the permit. Appellant argues, along with several other points for reversal, that the trial court erred in conducting a trial de novo. We agree and reverse and remand.

The circuit court ordered a trial de novo pursuant to Ark. Stat. Ann. § 82-1906 — Subdivision 7 (Repl. 1976) which provides:

The appeal shall be heard and determined by the court upon the issues raised by the notice of appeal. . . . The court on its own motion or on application of any party may, in its discretion, take additional evidence on any issue of fact or may try any or all such issues de novo, but no jury trial shall be had.

Appellant argues that a de novo review is an infringement of executive discretion in violation of Article IV of the Arkansas Constitution. In Goodall v. Williams, 271 Ark. 354, 609 S.W.2d 25 (1980), we reviewed the issue of the constitutional propriety of de novo review of administrative action by the judiciary. In Goodall we said that the constitutional propriety of de novo review primarily turns upon the character and legal status of the affected interests. If the interests are constitutionally or statutorily preserved, or preserved by private agreement, de novo review is appropriate. Thornbrough v. Williams, 225 Ark. 709, 284 S.W.2d 641 (1955). If the interests are less than fixed and their existence primarily depends on executive or legislative wisdom, de novo review is inappropriate. Goodall v. Williams, supra.

Appellant administers the Solid Waste Management Act, the purpose of which is to regulate the collection and disposal of solid wastes in a manner that will: a) protect the public health and welfare, b) prevent water and air pollution, c) prevent the spread of disease, d) conserve natural resources, and e) enhance the beauty and quality of the environment. Ark. Stat. Ann. § 82-2702 (Repl. 1976). Appellant’s determination of the suitability of a site for a landfill falls within its proper police powers to protect the health, safety, and general welfare of the citizens of the state. Such a determination, similar to that for the issuance of a liquor license, is not a determination which is judicially cognizable since the effort to obtain a permit hinges on executive discretion. Goodall v. Williams, supra.

Mere ownership, or leasehold, of property which could be utilized for the conduct of business does not constitute a non-terminable right. Blundell v. City of West Helena, 258 Ark. 123, 522 S.W.2d 661 (1975). In Wenderoth v. City of Forth Smith, 251 Ark. 342, 472 S. W.2d 74 (1971), we said that a statute providing for de novo review of municipal zoning decision violates Article 4 of the Arkansas Constitution. For the same reasons, the right to operate a landfill must be precluded from de novo review.

We hold that Ark. Stat. Ann. § 82-1906-Subdivision 7 (Repl. 1976) is unconstitutional to the extent that it authorizes the circuit court to review de novo the appellant’s decision. This does not mean that appellant’s decisions are immune from appellate review. The circuit court has the power to grant relief in appropriate proceedings when the decision is arbitrary, capricious, or unreasonable, and to take additional evidence on any issue.

The trial court found that appellant had not adopted any procedure, rules, or regulations which afforded appellee due process. We agree with this finding. Our opinion should not be interpreted as a criticism of the circuit court which was operating under a presumptively valid statute, but since we hold de novo review constitutionally inappropriate, we must reverse and remand. The trial court should now remand appellee’s application to appellant and mandate a complete and constitutionally appropriate proceeding.

Reversed and remanded.

Hickman and Hollingsworth, JJ., dissent.

Darrell Hickman, Justice,

dissenting. I would affirm because the attorney for the appellant said in oral argument that the constitutionality of the statute was not being challenged. That being so, I find no cause to reverse the circuit court’s decision which is not clearly wrong.

I am authorized to state that Hollingsworth, J., joins in this dissent.


author: George Rose Smith, Justice.

text:
    Cephus Merrick SMITH et al v. Lorraine E. BOONE, Guardian
    84-153
    680 S.W.2d 709
    Supreme Court of Arkansas
    Opinion delivered December 10, 1984
    [Rehearing denied January 14, 1985]

      Mike Smith, John W. Walker, and Benita Terry Jones, for appellants.

      Howell, Price & Trice, P.A., by: Dale Price and Max Howell, for appellee.

      Purtle, J., would grant rehearing.

   George Rose Smith, Justice.

The appellee, as guardian, obtained a judgment against the appellants_for personal injuries to her minor ward, Dagan Boone. The appellants’ attempted appeal from the judgment must be dismissed, because the notice of appeal, a jurisdictional requirement, was not filed within the time permitted by law.

The judgment was filed in the circuit clerk’s office on September 27,1983. The appellants promptly filed a motion for new trial on October 6. We note in passing that under Rule 4 of the Federal Rules of Appellate Procedure, such a motion in a federal court would have extended the time for filing the notice of appeal until the motion was granted or denied.

That, however, is not and has never been the Arkansas law. Act 555 of 1953 provided for the first time that notice of appeal must be filed within 30 days after the entry of judgment. Such a timely notice has consistently been held to be jurisdictional, so much so that it cannot be waived even by consent of the opposite party. LaRue v. LaRue, 268 Ark. 86, 593 S.W.2d 185 (1980); General Box Co. v. Scurlock, 223 Ark. 967, 271 S.W.2d 40 (1954),

In practice, Act 555 proved to be defective, in that the losing party might not be able to file a meritorious motion for new trial and obtain a ruling within the 30 days allowed for the notice of appeal. To remedy that defect the legislature adopted Act 123 of 1963. That act allowed the time for notice of appeal to be extended by the filing of a motion for new trial or other post-judgment motion. The extension of time, however, is not automatic. If the motion cannot be heard within 30 days from its filing, the movant is required within that time to present it to the trial court and obtain a ruling either (1) taking the motion under advisement or (2) setting a definite date for the motion to be heard. Act 123, § 2. If neither of those steps is taken within the 30 days, the motion is deemed to have been finally disposed of at the expiration of the 30 days, and the party must file notice of appeal within ten days. Act 123, § 3.

Act 123 did not expressly require a written record of the trial court’s action in taking the motion under advisement or setting a date for its hearing, but from the outset we put the bar on notice that such a record should be made. In discussing Act 123 in detail in 1966 we pointed out that “to avoid the uncertainties of oral testimony, it is evidently desirable that a docket entry, order, or other written, dated record be made at this point.” St. Louis SW Ry. Co. v. Farrell, 241 Ark. 707, 409 S.W.2d 341 (1966).

That procedure has since become mandatory. We held in Jones v. Benton County Circuit Court, 260 Ark. 893, 545 S.W.2d 621 (1977), that the statute places the duty of presenting the motion for new trial upon the moving party, and where the record does not show that the motion was so presented the trial court’s jurisdiction to grant the motion expires (then with the lapse of the term of court).

The provisions of Act 123 with respect to postconviction motions were carried forward in Rule 4 of the Rules of Appellate Procedure, effective July 1,1979. Paragraph 2 of the Reporter’s Note to that Rule explains the reasons:

Section (b) does not follow the second paragraph of Rule 4 of the Federal Rules of Appellate Procedure. It was believed that the federal rule permits excessive delay with respect to post-judgment motions that might be filed but not acted upon promptly. Consequently, Sections (b), (c), and (d) preserve the procedure that was prescribed by Act 123 of 1963.

In 1980 the Court of Appeals was squarely presented with the question whether there is a mandatory requirement that a written record be made of the trial court’s action in either taking the motion for new trial under advisement or setting a definite date for the motion to be heard. The court held that the Jones case, supra, had made such a record mandatory, so that the right of appeal lapsed if the notice of appeal was not filed within ten days after the expiration of 30 days from the filing of the motion for new trial, where there was no such written record. Jacobs v. Leilabadi, 267 Ark. 1020, 593 S.W.2d 479 (1980). We agreed with that view in Coking Coal v. Arkoma Coal Corp., 278 Ark. 446, 646 S.W.2d 12 (1983). In dismissing the appeal in that case we said:

The purpose of Rule 4 is to accelerate the appellate process, not to delay it. In the first case construing the statute permitting the time for filing the notice of appeal to be extended by a motion for new trial, this court said that when the trial court extended the 30-day limitation by taking the motion for new trial under advisement, it was desirable, to avoid the uncertainties of oral testimony, that a docket entry or other written dated record be made. [Citing Farrell.] More than two years ago the Court of Appeals held, correctly, that the requirement of a written record has become mandatory. [Citing Jacobs.]

In view of our uniform holdings during the past 18 years, nothing would be accomplished by remanding the case for an inquiry into whether an oral request was made that the trial court take the matter under advisement or set a hearing. In the absence of a written record, the time for filing a notice of appeal expired ten days after the motion for new trial was deemed to have been finally disposed of on November 5.

Appeal dismissed.


author: Darrell Hickman, Justice.

text:
    James Jack PATTON v. Gary Dean WILLIAMS
    CA 84-160
    680 S.W.2d 707
    Supreme Court of Arkansas
    Opinion delivered December 10, 1984

      Bennie O’Neil, for appellant.

      Huckabay, Munson, Rowlett ir Tilley, P.A., for appellee.
   Darrell Hickman, Justice.

James Jack Patton sued for damages for personal injuries caused by a motor vehicle accident with the appellee. At issue was which party ran a red light. The appellee intentionally injected the existence of insurance into this case, and we reverse and remand for a new trial.

During direct examination, Patton testified that he felt obligated to pay his doctor’s bill. The appellee’s attorney immediately seized upon the word “obligated” and said:

Now, your Honor, he’s opening the door into his obligation to pay a bill that perhaps already has been paid. If he wants to open that door ....

Then on cross-examination, the following occurred:

Appellee’s Attorney: I believe you also said that you are obligated, is that the word? You said you were obligated to pay these bills?
A: Yes, Sir.
Q. Your Honor, I again want to go into something I shouldn’t but you’ll recall, he did testify to that.
The court: I recall that, [attorney for appellee], I think you can go into it.
Q. Isn’t it true, sir, that $5,000 of those bills have already been paid? You’re not obligated to pay those, are you, sir?
Appellant’s Attorney: Your Honor, may we approach the bench? [A discussion at the bench ensured.]
The court: We’ll show your objection [attorney for appellant] for the record.
Q. Now the point is not that we owe you any of this, but the point is that you have told this jury today under oath one thing when, in fact, the truth is another thing. Five thousand of this has already been paid and you are not obligated to pay eight thousand, are you sir? (Italics supplied.)
A. Those bills are in my name.
Q. Sir, I’ve got the cancelled checks. Do you want me to produce those for you where five thousand of this has been paid?
A. You have the cancelled checks?
Q. Get the checks?
A. I didn’t say that.
Q. Okay. Now if you would tell a story about that, was the light green or was the light red? (Italics supplied.)

Those questions were not even a thinly veiled hint of insurance coverage: rather, the attorney was making an outright reference to the fact that the insurance company paid the bills. We have consistently held that the existence of insurance cannot be unnecessarily injected into a case and to do so is reversible error. Vermillion v. Peterson, 275 Ark. 367, 630 S.W.2d 30 (1982); Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973). That principle is part of the “collateral source rule” which excludes evidence of benefits received by a plaintiff from a source collateral to the defendant. We have explained the reason for the collateral source rule: that is that recovery from other sources, if known to the jury, could result in prejudice to the plaintiff. See Pekin Stave & Mfg. Co.v. Ramey, 104 Ark. 1, 147 S.W. 83(1912); Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972). The rule serves one goal of tort law which is to reimburse the plaintiff for his losses and also prevents the defendant/tortfeasor from receiving the benefit of the collateral recovery. See 22 Am. Jur. 2d Damages § 206(1965); Vermillion v. Peterson, supra. The rule can have no meaning if it is skirted by the tactics used here.

The appellant was entitled to testify as to the amount of his medical bills although they may actually by paid by a collateral source. See Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1961). The error is aggravated because the appellee’s attorney used the situation to portray the appellant as a liar before the jury when in fact he told the truth. That the appellant later had to go into the matter in detail to show that insurance coverage did in fact result in payment of part of the bills does not waive the appellant’s original objection. The trial judge abused his discretion in allowing the appellee’s attorney to question the appellant as he did.

We find no merit in the other argument raised pertaining to the trial judge’s comments.

The appellees made no reference to a violation of our Rule 9; however, the appellant abstracted essentially verbatim the relevant portions of the transcript pertaining to testimony and colliquies that occurred on the two issues raised. The record was not abstracted in the first person as our Rule 9 requires. The.abstract consisted of only 12 pages and pages from the transcript were skipped by the appellant in so doing. Sometimes, particularly in the case of objections to court rulings, it is necessary to quote exactly from the record. In fact, we, ourselves, often find it useful to quote in part exactly what was said. We find no flagrant violation of Rule 9 as we did in Harris v. Ark. Real Estate Comm'n., 274 Ark. 537, 627 S.W.2d 1 (1982), where the appellant reproduced all of the transcript.

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    Shirley Irene BUSH v. Richard L. DIETZ, ARKANSAS SOCIAL SERVICES
    84-206
    680 S.W.2d 704
    Supreme Court of Arkansas
    Opinion delivered December 10, 1984

      James DePriest, for appellant.

      Vernon T. Kelly, for appellee.
   John I. Purtle, Justice.

After a hearing the Probate Court of Perry County granted appellee’s petition for appointment as guardian with the right to consent to adoption. No attorney or guardian ad litem was appointed for the children. The mother appeals on the grounds that the court erred in terminating her parental rights in violation of the requirements of Ark. Stat. Ann. § 56-128 (Supp. 1983) and in holding that the evidence revealed clear and convincing reasons to terminate the relationship. We agree that the findings of fact by the court in this case do not support the allegations of the complaint and the demands of Ark. Stat. Ann. § 56-128.

The two minor children in this matter are the natural children of the appellant Shirley Irene Bush, who is presently an inmate in the Arkansas Department of Corrections. She has been imprisoned since 1975 and is presently eligible for parole consideration. The children are ages 11 and 13 and have been in custody of the Social Services for almost nine years. They have been placed in several different foster homes. The oldest is a boy and is a resident student at the Arkansas School for the Deaf but, along with his younger sister, is now in custody of foster parents. They were removed from one foster home because of alleged sexual abuse of the girl by a foster father.

During her imprisonment the appellant has learned sign language in order to communicate with her son. His disability is the result of spinal menigitis when he was a baby. The children have visited the mother infrequently while she has been in prison. Social Services was responsible for arranging visitation. The appellant requested semimonthly visits but such visits were not arranged. She also requested that her children be placed in a foster home in Jefferson County in order to make visitation more easily arranged. This request was not complied with.

The appellant has served more than nine years on a 30 year sentence for first degree murder. She had no prior convictions. She is a class I inmate and according to some testimony a model prisoner even though she had trouble adjusting to prison life at first. Her defense to the murder charge was that the victim was trying to rape her. She has a G.E.D. and has made arrangements for her own care and that of her children when she is released on parole.

Admittedly she has not contributed to the support of the dependent children during the time she has been in prison. The fathers were not located. They have not appealed. Their whereabouts has been unknown for years.

On June 7, 1982, Social Services entered into, a six month agreement with appellant concerning custody and visitation of the children. Among other things the contract stated: “I, Shirley Bush, realizing if my children are returned to me after parole, I will at this time begin to make plans for their appropriate care.” This agreement was made seven years after the Department took custody of the children and only four months before the petition to terminate the parental relationship was filed by the Department. The petition for termination of the parental relationship alleged two grounds of unfitness: first, that placing the children in appellant’s care would raise a substantial risk of physical and psychological abuse of the children; and second, that the parents had without reasonable or lawful cause failed to provide for the basic, essential and necessary physical, mental or emotional needs of the children for a period of one year immediately preceding the filing of the petition. The court also found that it would be in the best interest of the children to terminate the relationship.

The court made specific findings of fact and conelusions of law. However, there were no specific findings of fact to support all the allegations of unfitness of the mother as stated in the petition. Such findings are required by the provisions of Ark. Stat. Ann. § 56-128. Such proof must be shown by clear and convincing evidence. A.B. v. Arkansas Social Services, 273 Ark. 261, 620 S.W.2d 271 (1981). The specific allegations of unfitness were not discussed by the trial court. The specific allegation that the mother had “without reasonable and lawful cause to provide or to adjust her circumstances, conduct, or condition, so as to provide for the basic, essential and necessary physical, mental or emotional needs of the children for a period of one (1) year immediately preceding the filing of the petition,” was taken directly from Ark. Stat. Ann. § 56-128 (H). There is no question but that the fathers’ parental rights were properly terminated and that question is not before us. The finding that the mother failed to meet the responsibilities placed upon her by law rests almost entirely upon the fact that she was in prison and had no income of her own. For the same reason she failed to visit and communicate with her children. A representative of Social Services stated the mother had kept the promises made in the contract dated June 7, 1982. A part of that contract clearly indicated both parties anticipated that the appellant would be paroled and the children would be returned to her. Uncontradicted testimony by the mother was that the petitioner agreed with her in 1975 that if she pled guilty and went to prison she would have visits with her children. There is no real explanation why the Social Services waited several years to seek termination of the parental relationship. Certainly the cause would have been stronger before the mother adjusted to prison life and commenced preparations for being reunited with her children. Imprisonment of a parent imposes an unusual impediment to a normal parental relationship but is not conclusive on the issue. Zgleszewski v. Zgleszewski & Horne, 260 Ark. 629, 542 S.W.2d 765 (1976). We considered abandonment pursuant to Ark. Stat. Ann. § 56-128 in the case of A.B. v. Arkansas Social Services, supra, where we stated: “Mere incarceration is not conclusive on the issue of abandonment.” Without the facts relating to imprisonment, about the only other facts relating to unfitness of the mother were incidents in her teenage life in Alabama. At that time neither child had been born. Appellant was the victim of divorce. Her father was an alcoholic and her stepfather abused her. At age IB she left home and thereafter she made her own way until she was imprisoned at the age of 20. These matters are too remote and sketchy to be of any real value in determining whether her rights as a natural mother should be terminated.

Any party seeking to terminate the parental relationship bears the heavy burden to prove by clear and convincing evidence that the parent has significantly and without just cause failed to communicate with or support the child as required by law or decree. Harper v. Caskin, 265 Ark. 559, 580 S.W.2d 176 (1979). Adoption proceedings are in derogation of the natural rights of parents, and statutes permitting such are to be construed in a light favoring continuation of the rights of natural parents. Harper, supra.

The best interest of the child is a matter of primary concern in adoption proceedings. Termination of the maternal relationship is much more far reaching than a change of custody. Adoption changes the natural relationship between parent and child; it changes the course of lives, the manner of inheritance, the people with whom the child associates, and cuts the ties and relationship between the child and the family of the parent whose rights are terminated. To make a decision based solely upon the best interest of the child could be a dangerous thing. A literal interpretation of what is in the best interest of the child could conceivably lead to a decision to award the child to the parties who were able to furnish the most material things for the comfort and pleasures of life. The wealthy, even though strangers, could take the children of the poor because the children would obviously be better off in a home of plenty. The phrase “best interest of the child” means more than station in life and material things. “Best interest of the child” includes moral, spiritual, material and cultural values, matters of convenience and friends and family relationships. We have recognized as a cardinal principle of law and nature that parents who are able to support their child in their own style of life, however poor and humble they might be, should not be deprived of parental privileges, except when urgently necessary to afford the child reasonable protection. Davis v. Smith, 266 Ark. 112, 588 S.W.2d 37 (1979).

Under the circumstances of this case we are of the opinion that the court’s findings of fact and conclusions of law do not meet the criteria set forth in the petition for termination of parental rights as they related to the appellant at the time of the hearing on the petition. Parental rights are protected by the due process clause of the Fourteenth Amendment to the United State Constitution and Article 2, Section 8 of the Constitution of Arkansas. Davis v. Smith, supra.

Reversed.


author: Robert H. Dudley, Justice.

text:
    Gary Ray BELL v. Demetria A. STAFFORD, Individually and as a Natural Parent and Next Friend of Cheri STAFFORD, a minor
    84-163
    680 S.W.2d 700
    Supreme Court of Arkansas
    Opinion delivered December 10, 1984
    [Rehearing denied January 14, 1985.]

      Laser, Sharp & Mayes, for appellant.

      Howell, Price ér Trice, P.A., for appellees.
   Robert H. Dudley, Justice.

Appellees, Demetria and Cheri Stafford, filed a tort suit against appellant, Gary Ray Bell, to recover damages for injuries suffered when their automobile was struck from behind by a vehicle driven by appellant on June 21, 1981. A jury awarded Demetria Stafford $40,000 and Cheri Stafford $15,000. The sole issue on appeal is whether the trial court erred in admitting some of the medical bills into evidence. We find error and reverse in part. Jurisdiction is in this court under Rule 29(1 )(o).

Demetria and Cheri were initially seen by a family physician, Joe Daugherty, and were hospitalized in Jacksonville. At trial, Dr. Daugherty testified that Demetria’s complaints of neck pain, nausea, double vision and tenderness over the rib area coupled with contusions and a fracture of the nose, and Cheri’s complaints of neck pain and nausea were consistent with the type of wreck which had occurred. He testified that treatment was necessary and referred them to four medical specialists in the Little Rock area. The appellant does not question the ruling of the trial court that the medical expenses incurred by appellees from Dr. Daugherty and the specialists were both reasonable and necessary.

In October, 1982, sixteen months after the accident, the appellees, without being referred, went to a general practitioner in Malvern, Dr. R. H. White. In April, 1983, Dr. White had Demetria enter the Hot Spring Memorial Hospital for a battery of tests. The hospital charged Demetria for an electrocardiogram, electroencephalogram, colon-barium enema, gallbladder-oral-views-spot, upper GI, ultrasound-gallbladder, IVAC Controller, IVAC Set-up, Colon BA enema, Cholecystrography, oral and other items, amounting to $1,537.80. No medical evidence of the necessity of these charges was offered by appellees. The appellant contends that the ruling of the trial court allowing this bill in evidence was an abuse of discretion. The appellant also takes issue with the trial court’s rulings on Demetria’s expenses for the office visits to Dr. White, on Demetria’s expenses for dental repairs, and on Cheri’s expenses for the office visits to Dr. White.

A party seeking to recover medical expenses in a personal injury case has the burden of proving both the reasonableness and necessity of those expenses. However, expert medical testimony is not essential in every case to prove the reasonableness and necessity of medical expenses. Roy v. Atkins, 276 Ark. 586, 637 S.W.2d 598 (1982). The trial judge has some discretion in deciding whether a non-expert witness, usually the injured party, has laid a sufficient foundation to testify about reasonableness and causal relationship. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970). Our decisions recognize a distinction between proof of reasonableness and proof of necessity. We have held that evidence of expense incurred in good faith is some evidence that the charges were reasonable. Blissett v. Frisby, 249 Ark. 235, at 246, 458 S.W.2d 735 (1970). However, evidence of expense incurred alone is not sufficient to show that charges were causally necessary. Yet, the testimony of the injured party alone, in some cases, can provide a sufficient foundation for the introduction of medical expenses incurred. For example, if a litigant suffered a specific injury in an accident and was immediately taken to a hospital emergency room for treatment of only that specific injury, the injured party’s testimony would be sufficient to establish the necessity of the medical expense as a result of the accident. However, expert testimony would normally be required to prove the necessity of the expense when, as here, expenses for hospital tests were incurred many months after the accident, none of the physicians in attendance immediately after the accident referred the litigant either to the admitting doctor or to the hospital, and the expenses on their face do not appear to be related to the accident. In this case neither the admitting physician, Dr. White, nor any other medical expert testified that the hospital tests were related to the accident. Appellee Demetria Stafford did not testify that the electrocardiograms, gallbladder studies or intestinal studies bore a causal relationship to the accident. She testified that she was “. . . throwing up, losing weight and passing out” in the spring of 1983. No foundation was laid to establish a causal relationship between the accident and the hospital expenses. The trial court erred in allowing into evidence the bill from Hot Spring Memorial Hospital to Demetria Stafford in the amount of $1,537.80. Accordingly, we reverse the judgment for Demetria Stafford and remand her case for a new trial.

The appellant also argues that the trial court erred in admitting into evidence a dental bill to Demetria Stafford because the dental work was not proven to be nécessary. Demetria Stafford testified that prior to the accident she had no trouble with her teeth but in the course of the accident her face struck the steering wheel and dislocated some of the caps on her teeth and loosened some of her teeth. She testified that she went to the dentist for repair of the specific injuries. The $1,390.00 dental bill shows that it was to “replace bridge on top right crown.” In this instance, Demetria Stafford’s testimony was sufficient to establish the causal relationship between the accident and the dental bill. The trial judge was correct in admitting the dental bill of Demetria Stafford.

Appellant next contends that the judgment in favor of Cheri Stafford should also be reversed because of erroneous rulings on medical expenses. The appellant specifically argues that the trial court erred in admitting into evidence the bill of Dr. White. Dr. Daugherty testified that immediately after the accident Cheri had pain in the neck and back. He testified that, by the time of trial, she still complained of pain in the back and that she still had “a place on the right side now that’s knotted up in the neck.” Between the initial treatment by Dr. Daugherty and his examination of her just before trial, Cheri saw Dr. White on four occasions. She testified that she went to him because of pain in the neck and back which had continued from the accident. Dr. White’s bills to Cheri are for four office visits. Cheri’s testimony, coupled with Dr. Daugherty’s testimony, was sufficient to establish a causal relationship between the accident and the visits to Dr. White.

Reversed as to Demetria Stafford; affirmed as to Cheri Stafford.


text:
    Gary Lee McDONALD v. STATE of Arkansas
    CR 84-103
    680 S.W.2d 703
    Supreme Court of Arkansas
    Opinion delivered December 10, 1984

      William R. Simpson, Public Defénder, andHoward W. Koopman, Chief Deputy, by: Deborah R. Sailings, Deputy Public Defender.

      Steve Clark, Att’y Gen., by: Patricia G. Cherry, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

In a trial to the court, the appellant was found guilty of aggravated robbery and theft of property. Next, the court found that appellant previously had been convicted of more than one, but less than four, felonies and imposed enhanced sentences of forty and five years. See Ark. Stat. Ann. § 41-1001 (Repl. 1977 and Supp. 1983). Appellant contends that the trial court committed error in considering, for enhancement purposes, a prior conviction in which the state did not prove that appellant had been represented by counsel.

At trial, the court asked appellant’s counsel, “Is there any contention that he wasn’t represented by counsel at any of these convictions?” Counsel replied, “No, Your Honor. I think the only contention that we would have is that some of these are awfully old.” Having failed to raise the issue below, the point is waived, and cannot be considered for the first time on appeal. Hefley v. State, 281 Ark. 324, 663 S.W.2d 732 (1984).


author: P. A. Hollingsworth, Justice.

text:
    Bill POGUE v. Calvin COOPER, Ray WILLIAMS, Wilma WILLIAMS and Winford L. DUNN, Jr.
    84-176
    680 S.W.2d 698
    Supreme Court of Arkansas
    Opinion delivered December 10, 1984

      John B. Hainen, for appellant.

      Smith, Stroud, McClerkin, Dunn & Nutter, by: Winford L. Dunn, Jr., andAtchley, Russell, Waldrop irHlavinka, by: Victor Hlavinka, for appellee.
   P. A. Hollingsworth, Justice.

The sole issue presented by this appeal is whether statements made in pleadings are actionable as libel or if they are covered by an absolute privilege. The trial court held that the pleadings are covered by an absolute privilege and granted the appellees’ motion for summary judgment. It is from that holding that this appeal is brought. This appeal is before us under Sup. Ct. R. 29 (l)(o) as it presents a question in the law of torts.

This action began when the appellees, Calvin Cooper, Ray Williams, and Wilma Williams, filed a complaint against the appellant, the County Judge of Sevier County, on August 12, 1982, in which they alleged that the County Judge, who was in charge of the county equipment, let it be known and voiced around the county, that that equipment could be loaned, let, hired, and otherwise used in making improvements for private citizens, including himself, and did, in fact, do those things. The appellees sought an accounting, attorney’s fees, and a permanent injunction against the appellant. The complaint was signed by the appellees’ attorney, Winford L. Dunn, Jr., who is also an appellee in this action.

On November 1, 1983, the trial court enjoined Judge Pogue from hiring, letting, leasing, or otherwise permitting Sevier County property or personnel from being hired, rented, leased, or otherwise utilized for private property on or off county projects. The court denied the appellees’ request for accounting and attorney’s fees and found there was no personal or individual use or benefit of any of the services or equipment to the County Judge.

On December 28, 1983, the appellant filed a complaint against the appellees alleging that he was libeled by the pleadings filed in the earlier case, and that appellee, Winford L. Dunn, as attorney for the appellees is responsible under Ark. R. Civ. P. Rule 11. The appellees filed a motion for Judgment on the Pleadings or in the alternative, for Summary Judgment. The trial court found there were no questions of fact but only a question of law concerning the defense of absolute privilege. The trial judge followed the test announced by this Court in Mauney v. Millar, 142 Ark. 500, 219 S.W. 1032 (1920), where we stated:

There are two classes of privileged communications recognized in the law governing the publication of alleged libelous matter: One of these classes constitutes an absolute privilege, and the other a qualified privilege, and, according to the great weight of authority, pertinent and relevant statements in pleadings in judicial proceedings are held to be within the first class mentioned, and are absolutely privileged . . . The test as to absolute privilege is relevancy and pertinency to the issue involved, regardless of the truth of the statements or of the existence of actual malice.

The trial judge therefore found that the pivotal question here was tyhether the words contained in the pleadings were relevant to any of the issues raised. The court again quoted from Mauney to the effect that:

As to the degree of relevancy or pertinency necessary to make alleged defamatory matter privileged the courts favor a liberal rule. The matter to which the privilege does not extend must be so palpably wanting in relation to the subject-matter of the controversy that no reasonable man can doubt its irrelevancy and impropriety. In order that matter alleged in a pleading may be privileged, it need not be in every case material to the issues presented by the pleadings. It must, however, be legitimately related thereto, or so pertinent to the subject of the controversy that it may become the subject of inquiry in the course of the trial.

The trial judge found although there was no evidence “that Judge Bill Pogue used County equipment or personnel in making improvements for himself, it was, however, legitimately related to the subject of the controversy, and it could have become a subject of inquiry in the course of the trial.”

We agree. The rules announced in Mauney have been held to govern similar cases. See Rhode Island Ins. Co. v. Boatright, 186 Ark. 796, 56 S.W.2d 173 (1933) and Howard v. Ward and Howard v. Rhine, 238 Ark. 514, 383 S.W.2d 107 (1964). In addition, the Arkansas rule has been recently mentioned in federal court. In Westridge v. Wright, 466 F. Supp. 234 (E.D. Ark. 1979), Judge Roy applied Arkansas law to the issue of privilege and quoted the standard set out in Mauney, supra. The court stated:

Thus, under the established law of Arkansas, statements in pleadings in judicial proceedings are absolutely privileged as long as the statements are relevant and pertinent to the issues raised in the case. Statements in pleadings, if relevant and pertinent to the issues, are absolutely privileged even if the statements are false and made maliciously. The issue which the court must resolve . . . is . . . whether the allegations were relevant and pertinent . . . It is clear that this issue is one to be resolved by the court rather than a jury.

Here, the appellant is not challenging the trial court’s factual finding that the allegations were relevant and pertinent to the issues. Rather, he argues first that A.R. Civ. P. Rule 11 makes a lawyer liable for false allegations in a pleading since the rule states that a lawyer’s signature on a pleading constitutes a certificate by him that to the best of his knowledge, there is good ground to support the pleading. Rule 11 goes on, however, to provide that the sanction for a willful violation of this rule is appropriate disciplinary action for the attorney. The same privilege that extends to pleadings extends to the attorneys who prepare them. Restatement [Second] Torts § 586 provides that “[a]n attorney at law is absolutely privileged to publish defamatory matter concerning another ... in the institution of ... a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.” The appellant’s argument is without merit.

The appellant’s other contention is that this Court should adopt the rule followed by Louisiana courts that pleadings are only qualifiedly privileged. Under this minority view, an allegation is not privileged unless founded on probable cause and not known to be false. We decline to adopt this position and adhere to our rules as stated in Mauney, supra.

Affirmed.


text:
    Donald WEBSTER v. STATE of Arkansas
    CR 84-59
    680 S.W.2d 906
    Supreme Court of Arkansas
    Opinion delivered December 10, 1984

      Raymond R. Abramson, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Per Curiam.

Appellant Donald Webster was found guilty by a jury of aggravated robbery, burglary and theft of property. The trial court set aside the judgment on the theft charge and sentenced appellant to consecutive prison terms of 40 years and 6 years. Appellant brings this appeal.

Pursuant to Anders v. California, 586 U.S. 758 (1967), appellant’s counsel has filed a motion to be relieved and a brief stating there is no merit to the appeal. Appellant was notified of his right to file a pro se brief within SO days. See Rules of the Supreme Court, Rule 11 (h), Ark. Stat. Ann. Vol. SA (Supp. 1985). He did not file a brief. The state concurs that the appeal has no merit.

After midnight on March IS, 1985, a Brinkley couple were awakened by a man standing in the door of their bedroom. The man, who was armed with a knife, demanded money. The couple later identified appellant as the man who had robbed them.

A venireman was excused by the court on the ground that his religious scruples might interefere with his willingness to consider the full range of penalties set by the law. Another prospective juror was excused on the ground that she was evasive in her responses and expressed the intention to do things her way rather than conform to the law. Appellant objected that he was being denied a cross-section of the community as jurors and requested a mistrial. He also charged that the court had unfairly limited voir dire so as to eliminate questions to veniremen about how much credibility they would deem a particular witness to have.

It is well settled that the question of a juror’s qualification lies within the sound judicial discretion of the trial judge and that the appellant has the burden of showing the prospective juror to be unqualified. That discretion will not be disturbed unless it is abused. Beed v. State, 271 Ark. 526, 609 S.W.2d 898 (1980). We find no abuse of discretion here. Both jurors had expressed reservations about their ability to conform to the law. An accused is not entitled to a jury with persons who may not be able for whatever reason to follow the instructions of the court. Where the veniremen’s answers are tentative or equivocal, the trial court is in a better position than the appellate court to gauge the attitude of the prospective jurors and decide whether each will weigh the evidence and, if appropriate, consider the penalties provided by law. Clines v. State, 280 Ark. 77, 656 S.W.2d 684 (1983).

There was also no abuse of discretion in the court’s refusal to allow specific questions in voir dire about the credibility of witnesses expected to testify at trial. The trial court may limit questioning once it is established that a juror is or is not qualified. See Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Appellant’s general objection to the limits placed on his voir dire was not sufficient to establish that he was forced to accept any unqualified juror.

Appellant asked that the state be precluded from using a prior felony conviction to impeach him if he testified. It was argued that Ark. Stat. Ann. § 28-1001, Rule 609, required the trial judge to exercise discretion and weigh the prejudicial effect the prior conviction could have against its probative value. Since the conviction was for grand larceny, a crime involving dishonesty, Rule 609 does not require that the trial court consider the prejudicial effect the use of such conviction may have. James v. State, 274 Ark. 162, 622 S.W.2d 669 (1981). Such consideration is required only when a prior conviction is admissible because of the seriousness of the offense and the offense does not involve dishonesty.

After the defense had pronounced itself ready for trial and the jury had been impaneled, appellant requested a continuance to secure the appearance of a “material” witness. The motion was denied. The decision to grant or deny a continuance is a matter within the trial court’s discretion. The decision will not be reversed on appeal absent an abuse of that discretion. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983). Appellant here had ample time to prepare for trial and subpoena witnesses. Moreover, he gave no specific reason for requiring the witness’s testimony. The burden is on the appellant to demonstrate that the trial court erred in refusing to grant the continuance. Stephens v. State, 277 Ark. 113, 640 S.W.2d 94 (1982). Appellant has not met that burden.

Appellant filed a motion to suppress evidence of a lineup. The motion was denied, but since no evidence of the lineup was introduced at trial, no prejudice could have accrued as a result of the ruling.

The court also denied appellant’s motion that he be allowed to sit somewhere in the courtroom besides at the counsel table when the victims were asked to make an in-court identification of their assailant. The apparent basis for the request was the possibility that the in-court identification would be less reliable if the defendant were seated in the place where a defendant ordinarily sits.

The trial judge may control the seating arrangement in the courtroom. Unless appellant suffered some prejudice as a result of being seated with counsel, he has no ground for complaint. See Berna v. State, 282 Ark. 563, 670 S.W.2d 435 (1984). Reliability of the in-court identification is the key in determining its admissibility. The appellate court will not hold an in-court identification inadmissible without a showing from a totality of the circumstances that clear error occurred. Whitt v. State, 281 Ark. 466, 664 S.W.2d 876 (1984). Here, the victims saw the man for several minutes and were able to describe him to the police. Their in-court identification was positive. When the totality of the circumstances is considered, it was not clearly error to admit the in-court identification. The location of the appellant in the courtroom was not enough to taint the evidence and make it unreliable.

Appellant moved to quash the arrest warrant on the ground it did not specifically name him as having committed the crime. Appellant did not claim that any evidence should be suppressed by virtue of an illegal arrest. Even if the original arrest warrant were defective, a flaw in the manner of arrest is not sufficient cause to set aside a judgment of conviction. Singleton v. State, 256 Ark. 756, 510 S.W.2d 283 (1974).

After the jury was empaneled, defense counsel informed the court that appellant desired new counsel. Appellant explained that he also wanted a different judge and prosecutor because the judge was a Nazi and a Klansman and the prosecutor was a German. He implied that because his counsel was Jewish, he could not receive a fair trial. Appellant was unable to point to any specific instances of bias on the part of the court or prosecutor or incompetence on the part of appointed counsel. An accused is guaranteed a fair trial with competent counsel, not a trial that meets with his approval. See Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982).

From a review of the record and briefs before this Court, we find the appeal to be without merit. Accordingly, counsel’s motion to be relieved is granted and the judgment is affirmed.

Affirmed.


text:
    Thomas Jeffrey TACKETT v. STATE of Arkansas
    CR 84-179
    680 S.W.2d 696
    Supreme Court of Arkansas
    Opinion delivered December 10, 1984

      Appellant, pro se.

      Steve Clark, Att'y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee
   Per Curiam.

Petitioner Thomas Jeffrey Tackett was found guil ty by a jury of manslaughter and leaving the scene of a personal injury accident. He was sentenced to a term of eight years imprisonment in the Arkansas Department of Correction. He appealed the manslaughter conviction. The Court of Appeals affirmed. Tackett v. State, 12 Ark. App. 57, 670 S.W.2d 824 (1984). Petitioner now seeks permission to proceed in circuit court for postconviction relief pursuant to A.R.Cr.P. Rule 37 on the ground of ineffective assistance of counsel.

Petitioner first alleges that counsel did not adequately investigate the circumstances of the automobile accident which led to his conviction for manslaughter. The record indicates that counsel called the petitioner and four other witnesses in an attempt to establish that petitioner was not at faul t in the accident. Counsel also cross-examined the State’s witnesses at length on the State’s version of how the accident occurred. Although petitioner contends that counsel should have investigated the crime scene, he does not explain what helpful information such an investigation would have revealed. Counsel has “a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland v. Washington, -U.S--, 104 S. Ct. 2052, (1984). Even if counsel did not visit the scene of the accident, his decision not to do so must be assessed for reasonableness based on all the circumstances, applying a heavy measure a deference to counsel’s judgments. Strickland v. Washington. Since petitioner has not demonstrated that counsel failed to develop any specific element of the defense, we find no basis for a finding of incompetence.

Petitioner next contends that several witnesses could have been called to testify that the victims whose car went off the road had been to a beer party and were using drugs before on the day of the accident. He also contends that there were two witnesses who could have testified that one of the victims caused the accident by j umping from the back seat to the front seat of the car.

It is well settled that the decision to call certain witnesses and reject other potential witnesses is largely a matter of trial strategy. Counsel must use his own best judgment to determine which witnesses will be beneficial to his client. See Hayes v. State, 280 Ark. 509, 660 S.W. 2d 648 (1983). It is possible that another attorney might have attempted, and perhaps succeeded, in having the testimony of the witnesses admitted into evidence, but petitioner has not established that counsel’s decision prejudiced him or amounted to more than a tactical decision.

Petitioner’s final allegation concerns a statement made by venireman Owens during voir dire. The following exchange occurred between counsel and Mr. Owens:

State: Mr. Owens, have you heard the questions I have asked these other jurors?
Juror: Yeah.
State: Would your answer be similar to theirs?
Juror: No.
State: Okay. Thank you, sir. Pass.
Counsel for Petitioner: Pass him back.
State: One moment, Your Honor. Good, Your Honor.
Counsel for Petitioner: He’s good.
The Court: Take a seat in the jury box.

Petitioner argues that the juror’s answers indicated that he was not willing to abide by the Court’s instructions, but the record is silent as to what Mr. Owens was referring when he said, “No.” A reading of the complete voir dire reveals that the routine questions of the prosecutor were sometimes framed, “would your answers be the same” and at other times, “would your answers be different.” After listening to a number of other people answer, it is not unlikely that Mr. Owens simply misunderstood the question. In any event, petitioner has failed to show that he suffered any actual prejudice from Owens’ presence on the jury. To prevail on an allegation of ineffective assistance of counsel with regard to jury selection a petitioner first has the heavy burden of overcoming the presumption that jurors are unbiased. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982) . To accomplish this, a petition must demonstrate actual bias. Jeffers v. State, 280 Ark. 458, 658 S.W.2d 869 (1983) . Moreover, the actual bias must have been sufficient to prejudice the petitioner to the degree that he was denied a fair trial. Although the record would be clearer with regard to Mr. Owens’ position if counsel had questioned him further, counsel was in a position to assess the juror’s demeanor and weigh his suitability as a juror. As petitioner has not shown that he was actually prejudiced by counsel’s conduct to the point that he was denied a fair adjudication of his guilt, we cannot say that counsel was ineffective. See Strickland v. Washington, - U.S--- 104 S. Ct. 2052 (1984) .

Petition denied.


author: Webb Hubbell, Chief Justice.

text:
    Darryl GAYLOR v. STATE of Arkansas
    CR 84-127
    681 S.W.2d 348
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984

      D. Drew Luttrell, for appellant.

      Steve Clark, Att’y Gen., by: Marci L. Talbot, Asst. Att’y Gen., for appellee.
   Webb Hubbell, Chief Justice.

Appellant, Darryl Gaylor, was convicted of aggravated robbery, theft, and of being a felon in possession of a firearm and was sentenced to 60 years, fifteen years, and twelve years of imprisonment respectively, the sentences to run consecutively. Appellant argues that the trial court erred in refusing to suppress evidence seized incident to his warrantless arrest. We affirm.

On December 1,1983, atabout 10:00p.m., the Kentucky Fried Chicken of Mountain Home, Arkansas was robbed by a white male carrying a sawed off shotgun. The investigating officer determined the robbery must have been committed by a former employee. Appellant fit the description of the robber, was a former employee, and was known to be in need of money, so the police officers went directly to appellant’s residence. They Arrived at appellant’s house at about 10:27. The house was dark, and the officers received no response when they knocked. A neighbor told them he had seen appellant climb into the neighbor’s pick-up and then go into appellant’s house. The officers then entered Mr. Gaylor’s residence through an unlocked door after calling on a loudspeaker for appellant to come out. A bank bag, some cash, and a check were found in a back bedroom. One of the officers noticed the attic door slightly ajar and some loose attic insulation. Upon demand appellant then climbed down from the attic and was arrested.

Appellant argues that the evidence seized should have been suppressed because appellant’s arrest was not based on reasonable cause and was therefore illegal. We address first the legality of the arrest, second the legality of the entry and search of appellant’s home, and third the seizure of evidence incident to the arrest.

I

An officer may make an arrest where he has reasonable grounds for believing that the person arrested has committed a felony. Ark. Stat. Ann. § 43-403 (Repl. 1977). A.R. Crim. P. Rule 4.1. Reasonable cause is synonymous with the term "probable cause”. A.R. Crim. P. Commentary to Article IV following A.R. Crim. P. Rule 10.1. Probable cause, or reasonable cause, exists where the facts and circumstances within the arresting officer’s knowledge, and of which he had reasonably trustworthy information, are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed by the person to be arrested. Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); McGuire v. State, 265 Ark. 621, 580 S.W.2d 198 (1979). The arresting officer testified that the investigation revealed the armed robbery had been committed by a former employee who fit appellant’s description. The officer stated he was aware of appellant’s prior criminal record. The officer further stated he knew that appellant had been a former employee and that appellant was in the area and needed money. The trial court found “there is reasonable cause to believe this defendant has committed a felony. . . .” Under the circumstances of this case, we affirm the trial court’s finding of reasonable cause for the arrest.

II

The United States Supreme Court has held that the Fourth Amendment of the Constitution of the United States prohibits police officers from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest absent exigent circumstances. Payton v. New York, 445 U.S. 573, (1980). See also Haynes v. State, 269 Ark. 506, 602 S.W.2d 599 (1980). Dorman v. U.S., 435 F.2d 585 (D.C. Cir. 1970), recently cited with approval in Welsh v. Wisconsin, _U.S__, 80 L.Ed.2d 732, 744 (1984), enumerates some exigent circumstances which may render a warrantless entry to arrest reasonable: 1) the commission of a grave offense, 2) belief that the suspect is armed, 3) a clear showing of probable cause to believe the suspect committed the crime, 4) strong reason to believe the suspect is in the premises being entered, and 5) likelihood that the suspect will escape if not swiftly apprehended. A sixth exigent circumstance to be considered is the danger of destruction of the evidence. See United States v. Santana, 424 U.S. 38 (1976). In addition, the peaceable entry of the premises may be considered in determining the reasonableness of police action. In the instant case the grave offense of aggravated robbery was involved. The officers believed appellant was armed because the robbery had occurred less than half of an hour prior to the arrest. All events occurred after ten o’clock at night. The officers had reason to believe appellant was in his house because a neighbor had just seen him climb into the neighbor’s pick-up, get out, enter the house, and turn a light on and off. Another officer testified he thought he heard someone moving in the house while he was standing outside the backdoor. The door to the house was unlocked, and peaceful entry was made. The trial court found exigent circumstances which, coupled with the finding of reasonable cause, formed a basis for a lawful warrantless arrest. All presumptions are favorable to the trial court’s ruling on the legality of the arrest, and the burden of demonstrating error rests on the appellant. Reed v. State, 280 Ark. 316, 657 S.W.2d 557 (1983). Under the facts of this case, the trial court did not err in finding the entry and arrest were lawful.

Ill

A search and seizure made contemporaneous to a lawful arrest is valid if the accused is on the premises and the officer has reason to believe the premises contain things which are: 1) subject to seizure, 2) connected with the offense for which the arrest is made, and 3) likely to be removed or destroyed before a search warrant could be obtained. A.R. Grim. P. Rule 12.5. While walking through the residence looking for appellant, the officers found in plain view and seized a bank bag, some cash, and a check identified as having come from Kentucky Fried Chicken. The officers also seized some clothing and three shotgun shells. Both probable cause and exigent circumstances existed for the arrest independent of the search. Since the arrest and search were substantially contemporaneous, we conclude there was no error, and the objects seized were properly admitted into evidence.

Affirmed.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    FARM BUREAU MUTUAL INSURANCE COMPANY OF ARKANSAS, INC. v. A.H. BARNHILL, Jr.
    84-178
    681 S.W.2d 341
    Supreme Court of Arkansas
    Opinion delivered December 17, 1984

      McDaniel, Gott ir Wells, P.A., by: Phillip Wells, for respondent.

      Barrett, Wheatley, Smith ir Deacon, for petitioner.
   George Rose Smith, Justice.

The plaintiff below, A.H. Barnhill, Jr., had a liability insurance policy issued by Farm Bureau, covering Barnhill’s four cars. The policy provided that its terms applied separately to each vehicle. Barnhill was seriously injured in a collision with an uninsured motorist. The policy contained the required minimum uninsured-motorist coverage of $10,000.

Barnhill brought this suit for a declaratory judgment permitting him to stack the four coverages, so that he could recover up to $40,000 to apply to his damages. The circuit court held that the policy did not allow stacking, but the Court of Appeals reversed. Barnhill v. Farm Bureau Mutual Ins. Co., 12 Ark. App. 123, 671 S.W.2d 233 (1984). We granted the insurer’s petition for review to be certain that the reversal was not contrary to our holding in M.F.A. Mutual Ins. Co. v. Wallace, 245 Ark. 230, 431 S.W. 2d 742 (1968). We agree with the Court of Appeals.

The significant difference between the other-insurance clauses in the two cases is that in M.F.A. Mutual the clause referred specifically to other insurance issued by the same company, the language being as follows:

With respect to any occurrence ... to which this and any other automobile insurance policy issued to the named insurer or spouse by the Company [our italics] also applies, the total limit of the Company’s liability under all such policies shall not exceed the highest applicable limit. . . under any one policy.

We did say that the statute was not designed to provide greater protection than would have been available had the insured been injured by an operator with a policy containing the minimum $10,000 statutory limit, but that reasoning does not preclude an insurance company from selling more than the minimum protection if it chooses to do so.

That is the situation here, the other-insurance clause reading as follows:

[I]f the Insured has other similar insurance available to him and applicable to the accident, the damages shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and such other insurance, and the Company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.

Farm Bureau argues that although it charged a separate premium for each of the four vehicles covered by the policy, and although the terms of the policy were to apply separately to each vehicle, the quoted other-insurance clause precludes Barnhill from stacking the coverages that would otherwise exist.

We cannot agree. The other-insurance clause is undoubtedly ambiguous. That is, the holder of a policy such as this one could not be expected to realize that the reference to the limits of liability “of this insurance and such other insurance” includes not only a policy issued by a different company but also the very policy he was reading, so that its multiple coverage would be “other” insurance. Certainly the policy does not state in plain terms the meaning that the company would have us give to it. There being an ambiguity, the doubt must be resolved in favor of the insured.

The question now presented has already been decided by two federal judges who were endeavoring to apply the law of Arkansas. Dugal v. Commercial Standard Ins. Co., 456 F. Supp. 290 (W.D. Ark., 1978); Woolston v. State Farm Mutual Ins. Co., 306 F. Supp. 738 (W.D. Ark., 1969). Woolston involved another Farm Bureau other-insurance clause identical to the one now before us. Both federal judges distinguished our holding in the Wallace case in the same way we have done and decided the issue in favor of the insured. We agree with those decisions, which have been fairly interpreted in a recent Survey of Arkansas Law, 3 UALR L. J. 145, 244 (1980):

After Dugal it is clear that both the Arkansas Supreme Court and the federal courts sitting in Arkansas will construe the “other insurance” clause to include the stacking of damage awards from more than one insurer. In order to be certain that the clause will also apply to other policies issued by the same company, the insurers must clearly define the term “other insurance” to include other insurance provided by the same company. Careful drafting will prevent stacking of policies issued to one insured by one company.

The other matters argued by Farm Bureau have been fully answered by the Court of Appeals and need not be re-examined.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The majority opinion leaves the trial courts out on a limb. It seems that no matter which way a trial court rules the appellate court is going to reverse. This rule obviously applies only in insurance coverage cases. In the present case the majority makes a hairline distinction which I cannot perceive. I believe M.F.A. Mutual Insurance Co. v. Wallace, 245 Ark. 230, 431 S.W.2d 742 (1968) is sound and logical as well as legally correct. Certainly the spirit of the uninsured motorist protection statute, Ark. Stat. Ann. § 66-4003 (Repl. 1980) is to provide minimum protection at a reasonable cost to the residents of Arkansas. M.F.A. issued its policy to Wallace and included the phrase, “. . . the total limit of the company’s liability under all such policies shall not exceed the highest applicable limit of liability or benefit amount under any one policy.” The Farm Bureau policy here in question contained the other insurance clause which in part states: “. . . and the Company shall not be liable for a greater proportion of any loss to which this coverage applies than the limit of liability hereunder bears to the sum of the applicable limits of liability of this insurance and such other insurance.” Both clauses clearly were intended to limit the liability to the requirement of the Arkansas Motor Vehicle Safety Responsibility Act. I do not think it makes any difference whether the coverage afforded was by the same company or another company. One is no more ambiguous than the other because they convey the same central thought that only one policy limit applies and if there is other coverage the policies are prorated.

This is a statutorily mandated coverage and the purpose of the Act is to protect those who are injured by uninsured motorists. The limits are contained in the statute. The burden should not be placed upon the insurance companies to prove that the coverage offered to policyholders is not in accordance with the statute. In Wallace, supra, we reversed the trial court for stacking coverages. In Harris v. Southern Farm Bureau Casualty Ins. Co., 247 Ark. 961, 448 S. W.2d 652 (1970) we prevented stacking of two insurance policies (different companies) and relied on Wallace.

In the present case the trial court followed precedent, or so he thought, and disallowed stacking. Now he is reversed. I will not hazard a guess as to which way we will hold next. The policies here in question contained another clause which limited uninsured motorist protection to one policy limit “regardless of the number of automobiles to which this policy applies.” The policies here at issue are clearly in accord with Arkansas law and plainly limit coverage to one limit per person regardless of the number of policies available to each vehicle. I agree with the trial court.