author: George Howard, Jr., Justice.

text:
    Eddie T. BOYD and Joseph SMITH v. Charles REDDICK and Dick TWIST
    78-154
    573 S.W. 2d 634
    Opinion delivered December 4, 1978
    (Division I)

      Thomas G. Montgomery, for appellants.

      Hale, Fogleman & Rogers, for appellees.
   George Howard, Jr., Justice.

This is an appeal from a jury verdict, in an action by appellants claiming $16,450.00 for property damage to a 1973 Peterbilt tractor-trailer and $15,000.00 for personal injury, apportioning the negligence of appellants at 60% and appellee at 40%, resulting in no recovery for appellants.

For reversal, appellants have tendered the following points:

1. The evidence was insufficient to support the jury verdict in favor of the appellees.
2. The trial court erred in instructing the jury on AMI 503 (intervening proximate cause) under the facts of the case.
3. The trial court erred by instructing the jury on AMI 902 (superior right of forward vehicle) under the facts of the case.
4. The trial court erred in refusing to give the appellants’ proposed modification to AMI 901 (common law rules of the road).
5. The trial court erred in overruling the appellants’ objection to appellees’ violation of the collateral source rule.

The pertinent facts for a resolution of the issues are:

On January 8, 1975, appellant Boyd was driving a tractor-trailer rig, which was owned by appellant, Joseph Smith, in the inside lane, or the left-hand lane, of the eastbound traffic on Interstate Highway 55 east of West Memphis, Arkansas, while appellee, Charles Reddick, was operating a tractor-trailer rig in the right-hand lane, or the outside lane, of the eastbound traffic. According to Boyd, Reddick changed from the right lane to the left lane without signaling and then immediately applied his brakes causing the two vehicles to collide. On the other hand, Reddick testified that he had changed lanes to pass a slower moving automobile, which also changed lanes about the same time and the driver immediately applied her brakes causing Red-dick to stop suddenly causing his tractor-trailer to strike the automobile in the rear; that within a matter of seconds, Boyd’s tractor-trailer struck the rear of Reddick’s tractor-trailer.

Appellee Reddick testified that the driver of the automobile left the scene immediately, but the impact between his tractor-trailer and the automobile broke the rear tail light assembly of the automobile and fragments of the tail light assembly were left on the bumper of his truck and on the surface of the highway. Appellant Boyd corroborated this by stating that he did see fragments of a tail light assembly as testified to by Reddick, but he did not see the automobile change lanes. Boyd also disputed the testimony of Reddick to the effect that after the impact of his tractor-trailer with the automobile, appellee Reddick removed his seat belt, opened the door of the cab of the truck and was in the process of exiting the truck before the impact of Boyd’s tractor-trailer with the rear end of Reddick’s tractor-trailer.

Appellants’ points for reversal shall be discussed in seriatim.

I.

Here, appellants contend that the evidence is insufficient to support the jury’s verdict in that it is undisputed that appellant Boyd was in the left hand lane at all times, prior to, during and after the collision, and that appellee Reddick has admitted changing lanes, and that this conduct was the direct and proximate cause of the accident.

It is well settled that if there is any substantial evidence to support a jury’s verdict, this Court will affirm, while on the other hand, if the evidence is deficient or insubstantial, we are duty bound to reverse. But from this record before us, we cannot say that the evidence is not substantial, but on the contrary, is substantial and accordingly, we find no error. It must be remembered that Boyd and Reddick were the only witnesses having personal knowledge of the circumstances resulting in the collision. Both of these parties were interested in the results. Consequently, the jury was not duty bound to accept either party’s testimony as being undisputed. Indeed, a fact question was presented for resolution by the jury. The jury heard the witnesses, observed their demeanor and conduct on the witness stand and, therefore, were in a better position to judge the credibility of the witnesses. The jury had the unfettered right to believe or disbelieve all or any part of the testimony of either party and had the further duty to resolve any conflicts or inconsistencies, whether real or apparent. Moreover, it must be remembered that in reviewing a verdict, we are to consider the evidence in the light most favorable to the party successful below.

II.

The trial court gave the following AMI 503 instruction concerning intervening proximate cause:

“If, following any act or omission of a party, an event intervened which in itself caused any damage, completely independent of the conduct of that party, then his act or omission was not a proximate cause of the damage.”

Appellants objected to the instruction on the grounds that the proof in the case is inconsistent with the intervening proximate cause theory.

Appellants also argue that appellee Reddick was clearly negligent in the occurrence and that the jury assessed him 40% negligent; and that inasmuch as Reddick was negligent and that since the third party, if any, is not a party to the action, the trial court committed prejudicial error in allowing the jury to be instructed on intervening proximate cause.

We are persuaded that the proof in the case warranted the trial court in giving the instruction on intervening proximate cause. Reddick testified that he changed from the right lane to the left lane because traffic was backing up ahead of him; and that he looked into his rear view mirror and didn’t see anything, switched on his left turn signal and proceeded from the right lane to the left lane; that a vehicle driven by a lady, ahead of him, suddenly changed from the right lane to the left lane and stopped suddenly. He also testified that he applied his brakes and his tractor-trailer slid into the rear of the automobile; that he put on his emergency parking, unfastened his seat belt, opened his left door, and then placed his left foot out of the door in order to exit the cab of his vehicle when he felt the impact of Boyd’s tractor-trailer striking the rear of his tractor-trailer. On the other hand, Boyd testified that Reddick suddenly changed from the right lane to the left lane without giving a signal and that the right front corner of his tractor-trailer struck the left rear corner of Red-dick’s tractor-trailer.

Appellants cite our case Gatlin v. Cooper Tire & Rubber Co., 252 Ark. 839, 481 S.W. 2d 338 (1972), in support of their argument that the instruction on intervening proximate cause was improper. We do not perceive Gatlin v. Cooper Tire & Rubber Co., supra, as being applicable here. In Gatlin, the trial court gave the following instruction:

“Cooper Tire & Rubber Co. is in no way responsible to the plaintiff for any negligence of his employer, Oaklawn Farm, Inc., or any other third party which might have caused the accident for which he seeks to recover his damages. If you find that the claimed injuries of the plaintiff were the proximate result of the negligence of Oaklawn Farms, Inc., or any third party, then you must find for the defendant, Cooper Tire & Rubber Co.”

In finding that the trial court committed error in giving this instruction, we stated that it was a binding instruction which did not make clear that ¡the third party’s negligence must be the sole proximate cause before a verdict for a defendant was required. We further emphasized that the negligence of a third party, not a party to the lawsuit, is no defense unless it is the sole proximate cause of the asserted damages and a plaintiff may recover, if the negligence of the named defendant was a contributing cause.

In the instant case, the trial court in addition to giving instruction AMI 503, also gave AMI 301, AMI 303 and AMI 501, the latter stating in part as follows:

“This does not mean that the law recognizes only one proximate cause of damages. To the contrary, if two or more causes work together to produce damage, then you may find that each of them was a proximate cause.”

It is clear that the jury was told that an intervening event completely independent of appellee Reddick’s conduct which in itself caused any damage, then the act or omission of appellee Reddick was not a proximate cause of the damage; and the jury was further instructed that if the action of the third-party driver was not an intervening act completely independent of appellee Reddick, they could find more than one proximate cause of the damage and, if they found it, they might find that each cause was a proximate cause of the damage. We are convinced that the trial court properly instructed the jury on the question of intervening proximate cause and that it was within the province of the jury to determine whether appellee Reddick’s conduct was a substantial factor in producing the damage complained of and whether a reasonable man would have foreseen the possibility of the alleged intervening act.

We have reviewed Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971), and conclude that the posture of the court relative to law on intervening causes as being foreseeable to the original actor or where his conduct substantially increases the likelihood of the occurrence does not conflict with the position that we take in this case.

III.

In an effort not to unduly prolong this opinion, we deem it sufficient to state that we have reviewed appellants’ argument to the effect that the trial court erred in giving instruction AMI 902 regarding the superior right of a forward vehicle and under the facts of this case, we find that the trial court did not err. Moreover, we are persuaded that appellants’ objection to this instruction was in the nature of a general objection to the form of the instruction rather than a specific one.

IV.

Here, the trial court gave instruction AMI 901 without modification. Appellants sought to modify paragraph c including the following:

“It is not to be supposed that a driver of an automobile is required to drive at a rate of speed at all times as would enable him to stop immediately at any given time.”

Appellants argue that “without the modification, a jury is free to apply the common misconception that one is also at fault if he strikes another from the rear, it is particularly unfair in its application to the facts of this case.”

Appellants offered no explanation why instruction AMI 901 did not adequately state the law. We have emphasized that when an AMI instruction is applicable in a case, it shall be used unless the trial judge finds that it does not accurately state the law and in the event it is not used, the trial judge is required to state his reasons for refusal. See: Vangilder v. Faulk, 244 Ark. 688, 426 S.W. 2d 821 (1968).

V.

Finally, appellants argue that during the cross-examination of appellant Smith, counsel for appellee was permitted to question appellant with regard to how much was owed on the tractor-trailer to the finance company. As a consequence of the inquiry, the witness voluntarily responded that the insurance company “paid some money on it, paid it off.”

Appellants objected and requested a cautionary instruction to the jury which the court gave admonishing the jury to disregard the response relating to the insurance company in view of the fact the money paid by the insurance company was not relevant or material in considering its verdict, it is obvious that the trial court acted in accordance with appellants’ request. There was no motion for a mistrial and, accordingly, we find no error.

Affirmed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Bonnie BURNEY v. O. H. HARGRAVES, Judge
    78-157
    573 S.W. 2d 912
    Opinion delivered December 11, 1978
    (Division I)

      McMath, Leatherman & Woods, for petitioner.

      Bill Clinton, Atty. Gen., by: David L. Williams, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This action was filed in this court as an original petition under Rule 16 for a writ of mandamus to compel the Honorable O. H. Hargraves, as judge of the Phillips Circuit Court, to enter a judgment in fav- or of the petitioner in a pending case. Later the petition was amended to ask alternatively for a writ of prohibition or a writ of certiorari. The petition must be denied, because the petitioner’s proper remedy is by appeal.

Mrs. Burney, the petitioner, filed suit in the Phillips Circuit Court as the beneficiary of a 150,000 life insurance policy issued by Old Republic Life Insurance Company upon the life of the petitioner’s husband, John Burney, who is alleged to have been killed on June 11, 1976. Old Republic’s answer, which denied that Burney is in fact deceased, was not tendered until after the expiration of the time allowed for its filing. Along with the answer Old Republic filed a motion asserting that it should be permitted to answer, because the delay had been caused by unavoidable casualty.

The petitioner resisted Old Republic’s attempt to file an answer. The court first entered an order denying Old Republic’s motion that it be permitted to answer. Later the court entered a second order stating that it would require proof of the terms of the policy and of the death of the insured before granting judgment as prayed for in the complaint. The order recited that Old Republic would be permitted to attend the hearing and cross examine witnesses.

Petitioner then sought mandamus in this court, alleging that the trial judge was under a purely ministerial duty to enter a default judgment (without proof of Burney’s death) and that the remedy by appeal was inadequate, because the petitioner would be compelled to submit to an unwarranted trial. The amendment seeking prohibition or certiorari made essentially the same allegations.

Neither mandamus nor prohibition nor certiorari can be used as a substitute for appeal. Mandamus: Calloway v. Harley, 112 Ark. 558, 166 S.W. 546 (1914). Prohibition: Harris Distributors, Inc. v. Marlin, Judge, 220 Ark. 621, 249 S.W. 2d 3 (1952). Certiorari: Ark. State Hwy. Commn. v. Ponder, Judge, 239 Ark. 744, 393 S.W. 2d 870 (1965). Mandamus cannot be used to correct an erroneous decision already made. Mobley v. Scott, County Judge, 236 Ark. 163, 365 S.W. 2d 122 (1963).

The point with respect to all three writs is that we cannot review cases in a piecemeal fashion. In Harris Distributors, supra, the trial court rejected a defendant’s contention that the plaintiffs’ entire cause of action had been extinguished by their satisfaction of a judgment against another tortfeasor. The defendant in question then sought a writ of prohibition to prevent the trial court from proceeding with the case against that defendant. We had this to say:

If [the writ of prohibition] were used to stay the proceeding in the trial court whenever counsel thought a ruling to be erroneous, much of our time would be occupied in the piecemeal settlement of questions that should be presented by appeal, and the trial courts would be unduly hampered in the disposition of their cases.

The petitioner is mistaken in arguing that the trial judge was under a merely ministerial duty to enter a default judgment without proof of Burney’s death. The judge exercised judicial discretion in making his ruling. All that the petitioner is really saying is that the ruling was wrong as a matter of law. If so, the petitioner has an adequate remedy by appeal. If the asserted threat of “an unwarranted trial” were a sufficient basis for declaring the remedy by appeal to be inadequate, then a defendant could always appeal from the trial court’s action in overruling a demurrer to the complaint. That, again, would be a piecemeal appeal merely testing the correctness of an interlocutory order.

In the case at bar there is still another reason to be considered. Old Republic contended that it was prevented by unavoidable casualty from filing a timely answer. The interlocutory order overruling that contention is also subject to review after a final judgment has been entered in the case. But if we granted a writ of mandamus or other remedy in this original action, directing that a default judgment be entered, then one of two possibilities would necessarily come about: One, Old Republic would lose its right to have its contention reviewed, or two, the case would result in two proceedings in this court instead of one. Both courses are contrary to our practice.

Writs denied.

We agree.

Harris, C.J., and Holt and Howard, JJ.


text:
    CAPITAL STEEL COMPANY, INC. v. FOSTER AND CREIGHTON COMPANY
    78-163
    574 S.W. 2d 256
    Opinion delivered December 11, 1978
    (Division I)

      House, Holmes & Jewell, for appellant.

      Friday, Eldredge & Clark, by: Bill S. Clark and David A. Orsini, for appellee.
   George Rose Smith, Justice.

The appellee F & C, a construction company, brought this suit for damages for breach of contract against the appellant Capital Steel, a supplier and fabricator of steel products. The complaint sought $63,909.56 in damages as a result of Capital Steel’s complete failure to perform its contract to supply spproximately 1,229,-030 pounds of reinforcing steel bars to F & C for use in the construction of a highway bridge at Camden. On the direct appeal the only question is whether the trial judge was right in directing a verdict for F & C in the amount sued for. There is also a cross appeal, involving another contract relating to a bridge at Searcy, which will be discussed separately.

On the direct appeal Capital Steel admits that it wholly failed to supply the steel at $10.80 per hundredweight, as its contract required. Capital Steel contends, however, that it raised a jury question by introducing evidence to show that F & C was guilty of unreasonable delay in not directing the actual delivery of the steel until about a year after the contract was made. The trial judge found as a matter of law that there was no unreasonable delay and accordingly directed a verdict for the plaintiff. We agree with his decision.

F & C’s contract with the state highway department was for the construction of the steel and concrete superstructure of a bridge at Camden. F & C solicited bids from suppliers of steel and eventually awarded the contract to Capital Steel. The contract was evidenced by a purchase order, dated October 15, 1973, which contained the details of the agreement and provided that shipments to the jobsite at Camden were to be made “as directed.” After a delay of more than a month Capital Steel accepted the contract by signing and returning a copy of the purchase order.

The steel to be supplied consisted of reinforcing bars that had to be cut to length and bent into the proper shape to be used in the concrete work in the superstructure of the bridge. After accepting the purchase order in November Capital Steel prepared its shop drawings showing how the bars were to be fabricated and bent. Those drawings were approved by the highway department in late December. Capital Steel, however, did not make a firm contract with a steel mill for the steel it would need to perform its contract.

In February, 1974, and again in March, the price of steel rose. In September progress in the construction of the foundation and piers of the bridge had reached a point at which it could be seen that the installation of the superstructure would soon begin. Billy J. Price, an officer of F & C, called Stuart Perry, an officer of Capital Steel, and discussed the situation. Perry said that Capital Steel could no longer furnish the steel at the contract price. The parties tried over a period of months to adjust the matter, but eventually F & C had to buy the steel elsewhere at a price of $16 per hundredweight, resulting in a loss of $63,909.56, which is the amount sued for.

At the trial Capital Steel took the position that the purchase order was ambiguous in specifying that the steel be delivered “as directed.” Two officers of Capital Steel testified that they thought a reasonable time for the delivery of the steel would have been about three months. March, April, and May, 1974, were mentioned in their testimony as possible times for delivery. The trial court held, however, that F & C acted within a reasonable time, because its request for delivery of the steel was within the time that F & C could perform its contract with the highway department without penalty.

The undisputed evidence supports the trial court’s conclusion. F & C’s contract was only for the superstructure of the bridge. The foundation and piers had to be constructed by others and necessarily took a substantial period of time. After that, F & C had to install the girders for the superstructure before it could begin using the reinforcing steel in the concrete work. The girders, in place, were 2,080 feet long. They had to be specially made, transported to the job, and put in place. That process required several months for completion. Capital Steel’s officers were of course charged with knowledge, and certainly had knowledge, of the kind of job they were bidding on. There is no basis in the proof for a belief on their part that their deliveries would be made in March, April, or May. Moreover, the price of steel had risen in February and March. Hence Capital Steel was no worse off with respect to prices late in the year than it would have been within a period it regarded as reasonable.

Capital Steel’s officers testified that their expectancy that deliveries would begin within about three months was based on their experience in performing four earlier contracts with F & C. Those contracts, however, were for comparatively small jobs. The testimony about those earlier jobs was not sufficient to afford the jury a basis for finding that the course of dealing between the parties had given to the words “as directed” the meaning that Capital Steel now attributes to them. Consequently there was no reason to submit such an interpretation to the jury under Ark. Stat. Ann. § 85-1-205 (Supp. 1977).

Capital Steel also argues that the amount of F & C’s damages was in dispute and should have been submitted to the jury. Even if this point was raised below, which does not clearly appear, it has no merit. The assessment of damages was simply a mathematical computation of the difference between the contract price and what F & C had to pay elsewhere. Those figures are undisputed. It is immaterial that Capital Steel eventually offered to supply the steel at $15 per hundredweight. That offer was a compromise, conditioned upon F & C’s releasing its claim for damages, and does not represent the price at which F & C could buy the steel in the open market.

We conclude on the direct appeal that the trial court was right in directing a verdict for F & C. There remains for decision the single issue raised by the cross appeal.

This controversy arises from a similar purchase order by which Capital Steel agreed to furnish approximately 1,010,-570 pounds of steel, at $17.54 per hundredweight, for a bridge job at Searcy. When about half the steel had been fabricated and delivered, F & C wrongfully refused to accept further performance. Later on, when F & C brought this suit against Capital Steel for breach of the Camden contract, Capita] Steel filed a counterclaim for its loss on the Searcy job. With respect to the measure of damages the trial court gave the following instruction, which is based upon § 2-708 (2) of the Uniform Commercial Code, Ark. Stat. Ann. § 85-2-708 (2) (Add. 1961):

If you find Foster & Creighton breached the Searcy agreement, you then have the duty of determining Capital Steel’s damages. The measure of damages for a breach by a buyer is the profit (including reasonable overhead) which the seller would have made from full performance by the buyer. The measure of lost profits is measured by the contract price less Capital Steel’s manufacturing costs.

F & C is not in a position to argue, as it attempts to do, that the instruction is not a correct statement of law. In that respect F & C’s objection to the instruction was merely “that it is an incorrect declaration of the law.” That is a general objection which raises no point for review. Uniform Rules for Circuit and Chancery Courts, Rule 13.

F & C also objected, however, that there was no proper proof of damages and therefore no instruction at all on the issue of damages should have been given. Thus the question on cross appeal is whether Capital Steel made sufficient proof of its damages to present an issue for the jury.

Capital Steel’s proof was simple. F & C wrongfully terminated the contract on March 27, 1975. On that date Capital Steel still was to deliver 418,903 pounds of steel under the contract, none of which had yet been fabricated for the job. The market price at which Capital Steel could have bought steel on that date was $10.34 per hundredweight. Capital Steel’s total manufacturing costs would have been $1.66 per hundredweight, leaving a profit of $5.54 per hundredweight at the contract price of $17.54. That would amount, on the undelivered 418,903 pounds, to $23,207.23, which was the sum sought in the counterclaim. The jury’s verdict for Capital Steel on the counterclaim was for $17,250.

On March 27, 1975, there was an anticipatory repudiation of the contract, for which Capital Steel was entitled under the U.C.C. to resort to any available seller’s remedy for the breach. § 85-2-610. A seller’s possible remedies are enumerated in § 85-2-703. The present situation falls most nearly under subsection (e) of that section, by which the seller may “recover damages for non-acceptance” under § 85-2-708. Subsection (1) of § 85-2-708 is not applicable, because Capital Steel had not yet fabricated the steel and so could not have made a tender of actual performance. We must therefore turn to subsection (2), which governs when subsection (1) is not applicable.

Subsection (2) was the basis for the trial court’s instruction, quoted above, and provides broadly that the measure of damages is the net profit that the seller would have made from full performance if there had been no anticipatory repudiation. Capital Steel’s proof was, in our opinion, amply sufficient to make a prima facie showing that its net profit from full performance would have been $23,207.23.

F & C, in arguing that Capital Steel’s proof was fatally deficient, relies upon the fact that on March 27, 1975, Capital Steel had on hand in its inventory more than the 209 tons of unfabricated steel that would have been required to fulfill its contract with F & C. That steel had been bought at various times, at various prices, and was later fabricated and sold by Capital Steel to various other customers. F & C argues that Capital Steel, to prove its exact damages, should have determined just what it had paid for the steel that would have been used to perform the F & C contract. F & C also argues that the market price should not have been determined as of March 27, 1975, the day of the repudiation, but instead the price should have been determined either by what Capital Steel actually paid for the steel in its inventory or by the market value on the probable dates of delivery if the F & C contract had been performed. F & C also argues that Capital Steel should have shown the price at which it ultimately sold the steel in its inventory.

F & C’s various criticisms of Capital Steel’s proof do not add up to reversible error, in the sense that Capital Steel is shown to have failed to make a submissible issue for the jury (which was the only objection made below). The UCC establishes at the outset this general policy: “The remedies provided by this Act shall be liberally administered to the end that the aggrieved party may be put in as good a position as if the other party had fully performed.” § 85-1-106. It must be remembered that F & C was the party at fault. Even if F & C had allowed Capital Steel to fully perform the contract, F & C could not have demanded that Capital Steel use any particular ton of steel in its inventory in supplying the Searcy job. To the contrary, Capital Steel could have used its entire inventory in supplying other customers and have made new purchases for the Searcy job. Consequently Capital Steel was not required, in making a prima facie case, to prove all the in- and-out ramifications of its inventory that F & C now considers essential.

That the steel in the inventory may have later been sold at a profit is not necessarily material, for Capital Steel may have been in a position to make a profit on two transactions instead of one. See Harris, A Radical Restatement of the Law of Seller’s Damages: Sales Act and Commercial Code Results Compared, 18 Stanford L. Rev. 66, 80 (1965). The jury was evidently not completely satisfied with Capital Steel’s proof, for the verdict was about $6,000 less than the amount claimed. The decisive point, however, is that a submissible issue was made by the testimony. That ends the matter.

Affirmed.

We agree.

Harris, C.J., and Holt and Howard, JJ.


author: Darrell Hickman, Justice.

text:
    ST. MARY’S HOSPITAL, INC. v. Mrs. Lorene BYNUM
    78-165
    573 S.W. 2d 914
    Opinion delivered December 11, 1978
    (Division II)

      Wright, Lindsey & Jennings, by: Annabelle Clinton, for appellant.

      Felver A. Rowell, Jr., for appellee.
   Darrell Hickman, Justice.

St. Mary’s Hospital, Inc. of Russellville appeals from a Pope County jury verdict which awarded S13,000.00 to Mrs. Lorene Bynum, the appellee.

We agree with St. Mary’s argument that there was no substantial evidence to support a finding of negligence by the jury and, therefore, we reverse the judgment in this case and dismiss it.

The facts are essentially undisputed. Mrs. Bynum’s husband was in St. Mary’s as a patient. She went to a rest room located adjacent to the waiting room. (She said she did not use the rest room which was in her husband’s hospital room because she thought another patient might need to use it.) She said the rest room was dirty and that there was dried excrement on the commode seat. She said she would have covered the commode seat with tissue but there wasn’t enough. She took off her shoes and attempted to stand on the seat; the seat slipped, or she lost her footing, and she fell injuring herself.

She went back to her husband’s room, and about an hour later she returned to the same rest room and again tried to use the same seat in the same manner (that is, by standing on it), but could not do so because the seat was still loose. She almost fell again. At this point she reported the condition of the seat to a hospital employee. The defendant did not dispute evidence that the nuts which hold the seat in place were later tightened two turns.

Mrs. Bynum’s sister essentially corroborated her story about the condition of the rest room although she did not testify that she saw any excrement on the toilet seat. She said that the seat was loose and “looked dirty.” Mrs. Bynum’s mother’s testimony was substantially the same.

There was medical testimony that Mrs. Bynum had suffered a sprain of the lower back. It is unnecessary for us to go into the injury suffered by Mrs. Bynum, which was obviously real and painful, because according to the law she was not entitled to recover any money from St. Mary’s.

In order for one to recover for personal injuries there must be a negligent act which proximately causes damage which can be reasonably foreseen. Negligence is “failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence .... To constitute negligence an act must be one from which a reasonably careful person would foresee such an appreciable risk of harm to others as to cause him not to do the act, or to do it in a more careful manner. ” AMI Civil 2d, 301.

It is a question of law and not of fact as to whether there is any substantial evidence to support a jury verdict. Missouri Pacific Transportation Co. v. Bell, 197 Ark. 250, 122 S.W. 2d 958 (1938).

The record is void of any negligent act on the part of the hospital which caused this incident. The injuries suffered by Mrs. Bynum resulted from her act of standing on the commode seat, which was neither designed nor intended to be used in that way. In a similar case the Tennessee Supreme Court reached an identical result. Elliott v. Dollar General Corporation, 225 Tn. 658, 475 S.W. 2d 651 (1971).

Mrs. Bynum argues the negligent acts of St. Mary’s were maintaining a dirty rest room which precipitated her actions, and permitting a loose toilet seat to exist. These acts, if they were proved, were not negligent acts that caused Mrs. Bynum’s injuries. Therefore, there is no substantial evidence that could support a finding of negligence on the part of St. Mary’s; its motion for a directed verdict should have been granted.

Although we are sympathetic with Mrs. Bynum’s injuries, we must conclude that as a matter of law she cannot recover from St. Mary’s.

Reversed and dismissed.

We agree.

Harris, C.J., and Fogleman and Byrd, JJ.


text:
    Julius OWENS and his wife v. Cleavell JONES and his wife
    78-182
    574 S.W. 2d 267
    Opinion delivered December 18, 1978
    (Division I)

      Don Steel, for appellants.

      Ed Alford, for appellees.
   George Rose Smith, Justice.

On January 13, 1977, the parties to this suit signed a printed Farmers Home Administration form, entitled “Option to Purchase Real Property,” by which the appellants, Mr. and Mrs. Owens, granted to the appellees, Mr. and Mrs. Jones, an option to purchase 79.37 acres of land for $27,779.50. Eventually the Joneses exercised their option to buy, but the Owenses refused to sell. The Joneses then brought this suit for specific performance. The Owenses, in appealing from a decree granting that relief, argue three points for reversal.

The first two points are overlapping and may be treated together. The option recited a consideration of “$1.00 in hand paid and other valuable consideration.” It also recited that the option was given to enable the buyers to obtain an FHA loan for the purchase of the property and that “the Buyer’s efforts to obtain a loan constitute a part of the consideration for this option.” Jones testified that he actually paid the one dollar and that, in connection with the processing of the application for an FHA loan, he paid an attorney’s fee of $125 and another unspecified item of $85.

The appellants argue that the recited one-dollar payment was merely a nominal consideration and that therefore they were entitled to terminate the option at any time, as they attempted to do in December, 1977, while the option by its terms was still in force. If the one dollar had been the only consideration, that argument would be sound, under our holding in Hogan v. Richardson, 166 Ark. 381, 266 S.W. 299 (1924). There we held that when the option is for a nominal consideration it may be withdrawn at any time before its acceptance, but when a valuable consideration is paid for the option it cannot be withdrawn before the expiration of the specified item.

The Hogan case, however, was distinguished in Duclos v. Turner, 204 Ark. 1000, 166 S.W. 2d 251 (1942), which is very similar to the case at bar. In Duclos the government option form, as here, recited a consideration of one dollar, but it appeared that the buyer had assumed an additional obligation. After discussing the rule of the Hogan case we went on to say:

The contract here sought to be enforced recites that it was executed upon a consideration of $1 in hand paid, and if there were no other consideration the rule above quoted would apply. We think, however, that it appears from the recitals of the contract, above quoted, that there were other considerations moving the parties to the contract. Duelos assumed the obligation recited, which suffices to constitute a valid consideration.

The present situation is even clearer than that in DuClos, for here the option expressly recited that the buyers ’ efforts to obtain the loan constituted part of the consideration. There is a reasonable basis for such a provision in the option, because without it the buyers might be unwilling to spend money in applying for the loan if the sellers could abrogate the option at will. It was to the interest of all parties that the loan be approved.

The appellants’ third argument is that the option agreement was so unfair and unconscionable that it ought not to be enforced by a decree of specific performance. It is contended that a court of equity should not allow the buyers, in return for a comparatively small consideration, to speculate in real estate values for the duration of the option, which might have been as long as 20 months, and to hold the title in suspense for that time.

Entirely apart from the parties’ freedom to make any lawful agreement they wanted to, the appellants’ argument has little to do with the actual facts in this case. The appellees have not been speculating in real estate values. To the contrary, they have been determined from the outset to buy the land, which lies next to their home. The delay was primarily because the local FHA office did not have the money available to make the loan. It is the appellants who have tried to go back on their word, simply because they learned too late that the proposed sale would entail a substantial income tax liability. That disadvantage, however, is not chargeable to the buyers and is not a basis in equity for permitting the sellers to renege on their promise. Indeed, if the contract were cancelled on that basis, it would be the sellers, not the buyers, who would be chargeable with unconscionable conduct.

Affirmed.

We agree.

Harris, C.J., and Holt and Howard, JJ.


author: John A. Fogleman, Justice. George Howard, Jr., Justice,

text:
    Ralph HENDERSON, Sheriff, v. Robert H. DUDLEY, Chancellor, et al
    78-65
    574 S.W. 2d 658
    Opinion delivered December 18, 1978
    (Division II)

      David Hodges and H. David Blair, for petitioner.

      Gerald W. Carlyle, for respondents.
   John A. Fogleman, Justice.

Jeanette Stone (now Cole) brought suit for divorce against Danny Stone in the Chancery Court of Jackson County. The decree rendered in that case required the payment of child support by Danny Stone. On December 7, 1977, Danny Stone was found to be in wilful contempt of the chancery court for failure to make the child support payments required of him. Upon this finding, the chancellor sentenced Stone to 40 days in jail, but directed that he be released during the day for employment purposes. A commitment was issued remanding Stone to the custody of the petitioner, Ralph Henderson, as Sheriff of Jackson County, pursuant to the chancellor’s finding and sentence. On February 22, 1978, Mrs. Cole filed a verified petition for citation of both Stone and Henderson for contempt of court, alleging that Stone had failed to pay child support as directed and had failed to submit himself to the Sheriff of Jackson County at night during the 40-day sentence and that Henderson had ignored the court’s order and allowed Stone to be free from custody during the nighttime from about December 8, 1977 until January 16, 1978. She further alleged that Henderson had personal knowledge that Stone was not only being allowed to stay at home at night, but during the daytime when he was not employed and that Stone was drinking alcoholic beverages at the Glaze Restaurant. This petition was presented to Chancellor Robert H. Dudley, the presiding judge of the Chancery Court of Jackson County, in vacation, at Pocahontas, on February 22, 1978, without notice to Henderson and without any process having been served on him. The chancellor, without hearing any evidence, issued an order directing Henderson to appear in the Chancery Court of Jackson County, on the 13th day of March, 1978, at 10:00 a.m. to “show cause, if any, why he should not be held in contempt of this court for his failure and refusal to comply and obey the court’s orders . . . . ” Petitioner filed a special appearance on March 13, 1978, challenging the jurisdiction of the court by motion to quash the order to show cause. When the chancery court denied this challenge, petitioner sought to overturn the chancellor’s ruling by petitioning this court for writs of prohibition, mandamus and certiorari, alleging that the chancery court was acting in excess of its jurisdiction. We find that petitioner is not entitled to any of the writs sought and dismiss his petition.

The first contention made by petitioner is that the alleged contempt was constructive, not having been committed in the presence of the court, and that a proceeding to punish for such a contempt must be initiated by an affidavit of a person or persons who witnessed the contemptuous conduct or otherwise have knowledge of it. He argues that there was no preliminary affidavit or information filed to bring the subject matter of this alleged contempt to the attention of the trial court in this proceeding and that, as a result, the chancery court had no jurisdiction to issue the order to show cause. Petitioner relies upon York v. State, 89 Ark. 72, 115 S.W. 948 and cases from other jurisdictions. Even if York is applicable, we do not agree that it mandates the result reached by petitioner. In York, no affidavit, information or statement of facts was presented to the court as a foundation for proceedings for contempt. We merely held that, in all cases of constructive contempt, i.e., contempt not committed in the immediate presence of the court, since the court could not take judicial notice of an offense committed outside its presence, it was necessary that the matter be brought to the attention of the court by a preliminary affidavit or information before an order to show cause or other process could be served. The judgments punishing the respondents there were quashed because the chancery court proceeded without any affidavit “or its equivalent.”

We noted the holding in York in the later case of CarlLee v. State, 102 Ark. 122, 143 S.W. 909. There, the judgment punishing the alleged contemnor was quashed on certiorari by a court divided, not only on the necessity of an affidavit to initiate that proceeding, but on the grounds for quashing the writ. The opinion, however, was authoritative as to “the power of the court to initiate the proceeding by an order first made of record, as stated therein or a statement of the facts entered of record and signed by the judge in vacation.” In that respect we said:

Under our system of procedure, the accused is entitled to be informed with reasonable certainty of the facts constituting the offense with which he is charged and an opportunity to make defense thereto — his day in court. The different kinds of procedure have been outlined for the punishment of other offenses, but the statute, as to this one, says only that he shall be notified of the accusation and have a reasonable opportunity to make his defense.
There must be an accusation before the accused can be notified of it, and there is no reason why the court in session cannot recite that the matter offending has come to its knowledge, setting it out in an order, and direct a citation thereon to show cause. This was done by the Supreme Court in the case of the State v. Morrill, [16 Ark. 384] and was as effectual notice of the charge or accusation as an affidavit or information would have been. The summons and warrant of arrest are but to notify and bring the accused into court to answer the charges there made against him and the citation in this case, although it contains the whole matter constituting the offense with which the petitioner was attempted to be charged, was not a charge of record for him to answer, or an accusation within the meaning of the statute, the notice having been issued in vacation, by authority of the clerk alone, so far as the record shows, there being no order of the court authorizing the issuance of the citation, and without an order of the court first made setting out the charge, or a statement thereof made of record and signed by the judge of the court in vacation. ***

Still later, we distinguished York on the basis that the statute on which that proceeding was based [Ark. Stat. Ann. § 32-401 (Repl. 1962) j related only to disobedience of injunctions and that in CarlLee the applicable statute was Ark. Stat. Ann. § 34-903. See Hall v. State, 237 Ark. 293, 372 S.W. 2d 603. In Hall, we held that York was not controlling. We also held that, as in CarlLee, compliance with § 34-903 was sufficient; that an attachment for disobedience of an order of the court could be issued without the affidavit of a third person setting out the facts; and that one charged with contempt for violation of a court order was not prejudiced when the alleged contemnor was informed of the basis of the charge in the attachment itself, was advised of the facts constituting the charge at the outset of the hearing and did not request a continuance. We supported the logicality of our position that a supporting affidavit was not required by quoting from CarlLee, as follows:

“The spectacle of a court of record and general jurisdiction being without power to initiate a proceeding to punish for contempt * * * without an affidavit of some third person first made, setting out the charge, would be pitiful in the extreme, and was not contemplated by our statutes and under our Constitution. The court would thus be rendered impotent, powerless to protect its authority, and enforce its mandates and retain the respect and confidence of the people, for whose benefit it was organized and exists, except by the grace of some third person.”

We had, prior to the decision in Hall, expressly recognized the power of a chancellor to initiate the process lor adjudication of contempt for failure to comply with orders of the court by issuing a citation upon information coming to its attention, without any formal complaint having been filed. Ray, Ex parte, 209 Ark. 739, 192 S.W. 2d 225; Turk & Wallen v. State, 123 Ark. 341, 185 S.W. 472. See also, Ex parte Coulter, 160 Ark. 550, 255 S.W. 15.

Thus, it can be seen that this court has taken the position that an order of court setting out the charge, or a statement thereof, containing the whole matter constituting the offense with which the alleged contemnor is charged, is the equivalent of a supporting affidavit. It was made quite clear in Spight v. State, 155 Ark. 26, 243 S.W. 860, that, upon the authority of CarlLee, a charge of contempt for disobedience of process may be initiated by the court without the aid of an affidavit. Although, in this case, we need not go so far as to say that the order to show cause, in and of itself, was sufficient to meet the requirements for a proper charge, the pertinent parts of it do state such a charge, viz:

ORDER
On verified Petition of the petitioner, Jeanette Stone Cole, alleging the following:
(1) That the defendant, Danny Stone, has failed and refused to comply with the Court’s Order rendered herein on December 7th, 1977, more particularly to-wit:
(a) by his failure to pay child support since the rendition of the Judgment and Commitment on December 7th, 1977; and
(b) his failure to submit himself to the custody of the Sheriff of Jackson County, Arkansas, during the nighttime and to only be released for employment purposes during his forty (40) day jail sentence.
(2) The defendant, Ralph Henderson, Sheriff of Jackson County, Arkansas, has failed and refused to comply with the Court’s Order rendered herein on December 7th, 1977, more particularly, to-wit:
“IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED
by the Court that the Defendant be remanded into the custody of the Sheriff of Jackson County, Arkansas, and to be by him safely confined in the Jackson County Jail, Newport, Jackson County, Arkansas, for forty (40) days, however, the defendant is to be released during the daytime for employment purposes.”
***
(4) The defendant, Ralph Henderson, Sheriff of Jackson County, Arkansas, is hereby ordered and directed to appear in this Court on the 13th day of March, 1978, at 10:00 A.M. to show cause, if any, why he should not be held in contempt of this Court for his failure and refusal to comply and obey the Court’s orders hereinabove mentioned; and further to show cause, if any, why he should not be required to pay a reasonable sum as costs and attorney’s fees for this particular litigation.

Although the order in this case, like the attachment in Hall, did not recite the specific facts on which the charge was based, the order did refer to the verified petition of Mrs. Cole, which did recite facts to the extent necessary to give petitioner adequate notice of the charge. Petitioner claims that the verification of this petition is inadequate because it was “to the best of her knowledge and belief.” In this case, where no affidavit was actually required, this verification is adequate and we reject the argument that a statement upon information and belief deprives the court of jurisdiction in a case where no affidavit is required.

Petitioner argues, however, that the petition did not state sufficient conduct on his part to constitute contempt, in that it is not alleged that he was served with the order, or that he wilfully or contumaciously violated the order, and that there is no statement of facts from which the essential elements of contempt could be rationally inferred. We disagree.

It is quite true that one, not a party to an action, who has not been served with an order, or who has no notice of it, and is not aware of its full import, cannot be held in contempt of the order. Whorton v. Gaspard, 240 Ark. 325, 399 S.W. 2d 680. We might well agree with petitioner if we were reviewing a holding that he was in contempt without any basis for finding that he had notice of the order or was aware of its full import. But we are simply reviewing the action of the trial court in denying a motion to quash the order to show cause on petitioner’s application for extraordinary writs and we will not entertain any factual questions that may arise. Jackson v. Smith, 236 Ark. 419, 366 S.W. 2d 278; Little Rock Distributing Co. v. Ouachita County Circuit Court, 259 Ark. 24, 531 S.W. 2d 33; Patrick v. Wood, 243 Ark. 418, 420 S.W. 2d 92; Rastle v. Marion County Rural School District No. 1, 260 Ark. 740, 543 S.W. 2d 923; Massey v. Enfield, 259 Ark. 85, 531 S.W. 2d 706; State v. Nelson, 246 Ark. 210, 438 S.W. 2d 33. Petitioner is not clearly entitled to the relief he seeks on these grounds, and in such cases these extraordinary writs are not granted. Karraz v. Taylor, 259 Ark. 699, 535 S.W. 2d 840; Girley v. Wood, 258 Ark. 408, 525 S.W. 2d 454; McAllister v. McAllister, 200 Ark. 171, 138 S.W. 2d 1040. Furthermore, we are most reluctant to use mandamus to control, direct or correct the action of trial courts in interlocutory proceedings. Girley v. Wood, supra.

Insofar as the issues before us are concerned, the record is certainly adequate to require petitioner to show that he had no notice of the order and was not aware of its import. The record discloses that the chancellor issued a commitment in this case on the same day he found Stone in contempt, which insofar as pertinent here said:

IT IS, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED by the Court that the defendant be remanded into the custody of the Sheriff of Jackson County, Arkansas, and to be by him safely confined in the Jackson County Jail, Newport, Jackson County, Arkansas, for forty (40) days, however, the defendant is to be released during the daytime for employment purposes.

Among the duties of a sheriff are the execution of process directed to him by legal authority, attendance upon all courts held in his county and the performance of all acts required of him by law. Ark. Stat. Ann. § 17-3601 (5) (Supp. 1977). Among the duties enjoined upon him by statute are the care, rule and charge of the county jail and all prisoners committed in his county. Ark. Stat. Ann. § 46-402 (Repl. 1977). Refusal to receive into the jail a person committed by lawful process is a misdemeanor which subjects the keeper of the jail to dismissal from office. Ark. Stat. Ann. § 41-2851 (Repl. 1977). Recklessly permitting one detained in custody to escape is also a misdemeanor. Ark. Sat. Ann. § 41-2814 (Repl. 1977). It is also the statutory duty of the sheriff to attend at the clerk’s office in his county daily to receive any process issued. Ark. Stat. Ann. § 27-320 (Repl. 1962).

The duty of a sheriff with respect to confinement of a prisoner lawfully committed to his custody has been treated by us in Houpt v. State, 100 Ark. 409, 140 S.W. 294, Ann. Cas. 1913c 690, viz:

An escape in law has two separate meanings. The one involves the act of the prisoner, the other the act of the officer having him in custody. When the prisoner goes away from his place of lawful custody, the escape is the act of the prisoner; when the prisoner is allowed to leave his place of confinement, either negligently or voluntarily, by the officer having him in custody, the escape is the act of the officer. But in either event whether a person under lawful arrest and restrained of his liberty evades such arrest and restraint, either through his own act or by sufferance of the officer and goes at large before delivered by due course of law, an escape is committed. It is the duty of a sheriff to keep in custody a prisoner lawfully committed to him. The custody means keeping him either in actual confinement in jail or surrounded by physical force sufficient to restrain the prisoner from going at large or obtaining more liberty than the law allows. The jail, with its walls, may constitute the place of confinement, or the physical force thrown about the prisoner outside of the jail may constitute the legal custody; but, when such physical force is removed, it results in an escape. As is said in the case of Wilkes v. Slaughter, 3 Hawkes (N.C.) 211, “No moral obligation can be received as a substitute for it, although promises may be made and may be observed to remain in close jail, the moment compulsion and force are withdrawn, there is no legal custody, the prisoner becomes a free agent, there is no longer an imprisonment.” In the case of Richardson v. Rittenhouse, 40 N.J. Law, 230, it was held that it was voluntary escape to allow a person arrested to go at large upon his promise to appear the next day and give bail, even though he voluntarily surrendered himself in the terms of the promise. In the case of Nall v. State, 34 Ala. 262, it was held that where a sheriff discharged his duties so negligently that a prisoner in consequence left the jail and went to the adjacent town, even though for a few moments, and actually returned, it was an escape. In the case of Lynch v. Com (Ky.) 73 S.W. 745, it was held that when a prisoner was permitted to go to his home every Saturday night it constituted an escape. In Luckey v. State, 14 Tex. 400, it was held that when a convict committed to prison was permitted by the sheriff to go at large, he was liable for escape. 1 Hale, P.C. 596; 2 Bishop, New Cr. Law, § 1065. In 16 Cyc. 538, an escape is defined to be “the loss before discharge by due process of law of the lawful custody of a prisoner, whether voluntarily or negligently suffered.” In order to constitute custody, there must be the presence of physical restraint or physical control; and when such restraint or control is lost, there is a loss of custody, even though it may continue only temporarily. Murfree on Sheriffs, §§ 193 and 1166.
As is said in the case of Beard v. State, 79 Ark. 293, “the law does not recognize any other method of holding a prisoner in custody charged with crime than by confinement in jail until examination or trial.” If exceptional cases shall arise when he must of necessity be taken from jail temporarily, then he must be actually guarded and surrounded by such physical force as will not only deprive him of liberty but restrain him from any free movement of going withersoever he may will.

See also, Annot., Ann. Cas. 1913c 694.

Our statute defines “process” as “a writ or summons issued in the course of judicial proceedings.” Ark. Stat. Ann. § 27-128 (Repl. 1962). A writ is defined as an order or precept in writing, issued by a court, clerk or judicial officer. Ark. Stat. Ann. § 27-129 (Repl. 1962). Process, in the sense of the statutes, is a comprehensive term which includes all writs, rules, orders, executions, warrants or mandates issued during the progress of an action, even those used to carry a judgment into effect, including a commitment to prison for a criminal offense or for contempt. People v. Nevins, 1 Hill (N.Y.) 154 (1841); Graber v. Graber, 93 F.S. 281 (D.C., 1950); Victoria v. Young, 80 Nev. 279, 392 F. 2d 509 (1964); U.S. v. Noah, 27 Fed. Cases 176 (S.D. N.Y. 1825); U.S. v. Hoffman, 13 F. 2d 269 (N.D. Ill., 1925), affd. 13 F. 2d 278, 280 (7 Cir., 1926); National Fire Ins. Co. of Hartford v. Chambers, 53 N.J. Eq. 468, 32 A. 663 (1895); State v. Wagoner, 123 Kan. 586, 256 P. 959 (1927); Riley v. Whittiker, 49 N.H. 145, 6 Am. Rep. 474 (1869). See also, Process (Practice), Black’s Law Dictionary (DeLuxe 4th Ed.) p. 1370. It has been said to include every description of process that can come into the hands of a sheriff to be executed. Harman v. Childress, 11 Tenn. (3 Yerg.) 327.

Our statutes specifically authorize courts to punish wilful disobedience of their process or orders [Ark. Stat. Ann. § 34-901 (Repl. 1962)]; however, the chancery court was proceeding under its inherent powers and we will deal with this case accordingly. In any event, the disobedience of any valid judgment, order or decree of a court having jurisdiction to enter it is such an interference with the administration of justice as to constitute contempt. State v. Koon, 356 Mo. 284, 201 S.W. 2d 446 (1947). Punishment for such contempt is an inherent power of the court. Lane v. Alexander, 168 Ark. 700, 271 S.W. 710; Meeks v. State, 80 Ark. 579, 98 S.W. 378; State v. Dowdy, 86 Ark. 140, 109 S.W. 1175; Guyot v. State, 222 Ark. 275, 258 S.W. 2d 569; Hands v. Haughland, 87 Ark. 105, 112 S.W. 184. The portion of the commitment order of the court directing that the defendant “be remanded into the custody of the Sheriff of Jackson County, Arkansas, and to be by him safely confined in the Jackson County Jail .... for forty (40) days, however, the defendant is to be released during the daytime for employment purposes” certainly constitutes process of the court. See, Williams v. Hempstead County, 39 Ark. 176.

The sheriff is an officer of the court for the purpose of carrying into execution sentences imposed by the court and is subject to attachment for contempt if he departs therefrom, without legal excuse therefor. Re Birdsong, 39 F. 599, 4 LRA 628 (1889); U.S. v. Hoffman, supra; Fanning v. U.S., 72 F. 2d 929 (4 Cir., 1934); State ex rel Murphy v. Superior Court, 30 Ariz. 332, 246 P. 1033, 47 ALR 401 (1926); Ridgway v. Superior Court, 74 Ariz. 117, 245 P. 2d 268 (1952). As an officer of the court it is his duty to obey its orders and his failure to do so is punishable as contempt of the court. State v. Leavitt, 271 S.W. 2d 63 (Mo., 1954). The disobedience or disregard of an order of commitment or confinement by a court of competent jurisdiction is a contempt of that court. Fanning v. U.S., supra; U.S. v. Hoffman, supra; Robran v. People, 173 Colo. 378, 479 P. 2d 976 (1971); Fiorini v. Fiorini, 122 Misc. Rep. 325, 203 N.Y.S. 785 (1924); Ex parte Shores, 195 F. 627 (N.D. Iowa, 1912).

There is a division of authority upon the question of the status of the keeper of a state prison as an officer of the court and it is held, in some cases, that he is not and consequently he cannot be held in contempt of the committing court for improper release of one committed. See e.g., People v. District Court, 89 Colo. 78, 299 P. 1 (1931). But the status of the sheriff as an officer of the chancery court is beyond doubt. Ark. Stat. Ann. § 17-3601 (5); In re Lawson, 3 Ark. 363. Certainly it is essential that a court in which a sentence is imposed for contempt be in a position to see that its sentence is made effective. The language of the U.S. Circuit Court of Appeals for the Fourth Circuit in Fanning v. U.S., supra, is appropriate here, in spite of the fact that the sentence there was not for contempt. That court said:

The right of a court to have the sentences imposed by it executed is inherent and is necessary to the administration of justice. Without this right and without the power to punish, and have the punishment carried out, courts would be impotent and could not function. ***

Just as appropriately, the United States Supreme Court in Wood v. Georgia, 370 U.S. 375, 82 S. Ct. 1364, 8 L. Ed. 2d 569 (1962), said:

We start with the premise that the right of courts to conduct their business in an untrammeled way lies at the foundation of our system of government and that courts necessarily must possess the means of punishing for contempt when conduct tends directly to prevent the discharge of their functions. ***

If the sheriff did permit Stone to go at large as alleged in Mrs. Cole’s petition, there was certainly a basis for a finding of contempt. The order to show cause refers to the verified petition of Mrs. Cole. That petition, beyond doubt, alleges facts constituting contempt of court. Ex parte Shores, supra; Swepston v. U.S., 251 F. 205 (6 Cir., 1918); In re O’Rourke, 251 F. 768 (D.C. Mont., 1918); People v. Court of Oyer & Terminer, 10 App. Div. 25, 41 N.Y.S. 702 (1896). The fact that the actions on which the charge is based may constitute a criminal offense does not affect the jurisdiction of the court to punish the offender for contempt. Guyot v. State, supra. This commitment was certainly process of the court, the disobedience of which by actions of the sheriff of the type alleged in the petition would constitute contempt of the court. U.S. v. Hoffman, supra; Robran v. People, supra. See also, People v. Solomon, 150 Misc. 873, 271 N.Y.S. 136 (1934).

Petitioner also contends that the order to show cause was void because the chancellor, while sitting in Pocahontas, which is outside the county (Jackson) in which the cause was pending, issued it upon the ex parte application of Mrs. Cole. Prior to the adoption of Ark. Stat. Ann. § 22-407.1 (Repl. 1962) there probably would have been merit in that contention. See Roberts v. Tatum, 171 Ark. 148, 283 S.W. 45. But under the cited section, the chancellor had the authority, while physically present in the geographical area he serves as chancellor, to render any appropriate order with respect to any cause or matter pending in any chancery court over which he presides, subject to such notice of the time, place and nature of the hearing as may be required by law or rule or order of the court. We take judicial notice that Robert H. Dudley, the chancellor who issued the order, is the chancellor of the Eighth Chancery Circuit, that Pocahontas is in the geographical area of that circuit and that the Chancery Court of Jackson County, in which this matter is pending, is a chancery court over which he presides. We know of no rule or order of the chancery court pertaining to such matters. No such rule or order has been filed in the office of the clerk of this court. Petitioner contends that he was entitled to notice. It is quite true that he is entitled to notice of a hearing on the order to show cause. There is no statute requiring that the alleged contemnor be given notice prior to the issuance of an order to show cause, which is simply an accusation. The only statutory requirement is that the alleged contemnor have notice of the accusation and have a reasonable time to make his defense. Ark. Stat. Ann. § 34-903. The chancery court was not proceeding under the statute, but under its inherent powers. See Weldon v. State, 150 Ark. 407, 234 S.W. 466; Freeman v. State, 188 Ark. 1058, 69 S.W. 2d 267; Rimmer v. Rimmer, 229 Ark. 1016, 320 S.W. 2d 92. Even so, petitioner was entitled to written notice of the accusation, and a reasonable opportunity to defend. Phillipe v. Window Glass Cutters League of America, 99 F.S. 369 (W.D. Ark., 1951). The order to show cause constituted sufficient notice of the accusation. See Roberts v. Tatum, supra; Hall v. State, 237 Ark. 293, 372 S.W. 2d 603; Poindexter v. State, 109 Ark. 179, 159 S.W. 197, 46 LRA (n.s.) 517; Pate v. Toler, 190 Ark. 465, 79 S.W. 2d 444.

Petitioner also contends that, not being a party to the original action, he was a stranger to the order of commitment and cannot be punished for contempt. Of course, one can be punished for disobedience of an order of the court in an action in which he is not a party if he has notice of the order. See Dennison v. Mobley, 257 Ark. 216, 515 S.W. 2d 215; Whorton v. Gaspard, 240 Ark. 325, 399 S.W. 2d 680. If petitioner was properly performing his duties as an officer of the court, it is difficult to see how he could have failed to have notice of the order committing Stone.

Petitioner also argues that the order of commitment was too vague as to his duties with reference to release of Stone in the daytime and with respect to his duty upon Stone’s failure to return to the jail in the evening. This was not a matter for consideration on a motion to quash for want of jurisdiction and is not for consideration on a challenge here to the jurisdiction of the chancery court. Furthermore, this contention was not one of the grounds on which the motion to quash was based. The merits of this contention are appropriate for consideration upon a hearing on the order to show cause.

Petitioner also asserts that the proceeding in the trial court was, in effect, mandamus to compel the performance of a duty. Obviously, there is no merit to this argument. The proceeding was one to punish petitioner for failure to perform a duty, not to compel its performance.

The petition for writs of prohibition, mandamus and certiorari is denied and the temporary writ of prohibition heretofore issued is dissolved.

We agree.

Harris, C.J., and Hickman, J.

Mr. Justice Byrd concurs in the result only.

Howard, J., dissents.

George Howard, Jr., Justice,

dissenting. I dissent in the disposition taken by the majority on petitioner’s request for writ of prohibition, or, in the alternative, mandamus or certiorari, to the Chancery Court of Jackson County.

The fundamental issue involved in this case is not, as perceived by the majority, whether the trial court has inherent power to cite an officer of the court for contempt for the disobedience of its process, nor is it whether a court may initiate contempt proceedings on its own motion, but, on the contrary, the issue is whether a criminal contempt proceeding may be initiated by a private litigant in his civil action pending before the court whose order has been purportedly ignored or disregarded by a party who is not a party to the pending action and where such alleged disobedience occurred out of the presence of the court.

It is generally recognized that civil contempt proceedings should be instituted by an aggrieved party who has a pecuniary interest in the right to be protected, while criminal contempt proceedings are initiated by the court or the office of the prosecuting attorney, at the request of the court, for, indeed, the state is the real party in interest, and consequently, is a proper party to the proceeding. I submit that, indeed, in situations as we have, in the instant case, where a husband and wife are antagonists, in a support proceeding where emotions and attitudes are highly charged, and a third party, the Sheriff of Jackson County — Chief Law Enforcement Officer of the county, is caught in the middle, a disinterested source should be called upon by the trial court to initiate and prosecute the proceedings.

It is clear from this record that even the trial judge had certain misgivings about the contempt proceedings initiated by Mrs. Stone against the sheriff in her civil action for the trial court, in its order of March 13, 1978, made the following observation:

“(10) The Court hereby orders the cause inviting Danny Stone and Ralph Henderson [Jackson County Sheriff] shall be separated and that henceforth there shall be two separate files maintained with a complete file in each cause and henceforth, the matter involving Ralph Henderson shall be referred to as Ex Parte, Ralph Henderson. (Emphasis Added)
“(11) The Court finds that the better practice would have been to obtain separate affidavits in the cause involving Danny Stone and Ralph Henderson.”

However, after making the above finding, the court went on to further state: “The Court rejects the argument Ralph Henderson cannot be brought as a party in a civil contempt proceeding between a husband and a wife.” I submit, if this is true, why did the court suggest and even order that a separate file be opened and maintained for the sheriff? It is apparent that the trial court is caught in the midst of an antinomy. It is clear that the citation against Danny Stone is for civil contempt, while the citation against the Sheriff of Jackson County is criminal.

The learned trial judge recognizing, as he must, the complications that were bound to develop in permitting the criminal contempt proceeding against the sheriff to be pursued in the wife’s civil action, ordered the proceedings against the sheriff to be designated as “Ex Parte, Ralph Henderson.” It is plain that in the criminal contempt proceeding, the sheriff is entitled to the presumption of innocence that is afforded every defendant in a criminal proceeding, while in a civil proceeding, this presumption is unavailable. Moreover, the sheriff’s guilt would have to be established by evidence beyond a reasonable doubt, while in a civil proceeding, the burden of proof is measured in terms of preponderance of the evidence.

I submit that although there are many cases in the Arkansas Reports, involving criminal contempt proceedings, designated or styled as “Ex Parte”, this is an inappropriate designation for a criminal contempt proceeding.

Black’s Law Dictionary, Fourth Edition, and Bouvier’s Law Dictionary, Third Revision, defines “Ex Parte”, in the context being used in this proceeding, as follows:

'Ex Parte', in the heading of a reported case, signifies that the name following is that of the party upon whose application the case is heard.”

It is plain from this record that Sheriff Henderson did not petition the trial court for any relief, but, on the contrary, Mrs. Stone petitioned the court for an order and citation against him. Thus, the designation of the proceeding against the sheriff as “Ex Parte, Ralph Henderson”, is a misnomer. The proceeding against the sheriff is an action by the state, and consequently, should have been styled State of Arkansas v. Ralph Henderson.

Finally, inasmuch as Mrs. Stone sought, improperly however, to initiate both civil and criminal contempt proceedings in her civil action by filing a purported verified petition, which the trial court construed as an affidavit, there is no accusation, not even a defacto one, in the misnomer “Ex Parte, Ralph Henderson” proceeding, since the trial court may not take judicial notice of its own records in other causes therein, even between the same parties. See: Lewis v. Lewis, 255 Ark. 583, 502 S.W. 2d 505; Murphy v. Citizens Bank of Junction City, 82 Ark. 131, 100 S.W. 894.

I would, therefore, grant the requested relief.

       The statute referred to is now Ark. Stat. Ann. § 34-903 (Repl. 1962), which merely requires that, in cases of contempts not committed in the presence of the court, the party charged be notified of the accusation and have a reasonable time to make his defense. It is clear that there is no statutory requirement as to the form of the charge or the manner of its initiation.

      The status of the sheriff as an officer of the courts in his county seems to be beyond doubt. He has been called the executive arm of the court. Merrill v. Phelps, 52 Ariz. 526, 84 P. 2d 74 (1938).

      One of the peculiarities of contempt proceedings is that the judge whose orders are disobeyed, or who is personally insulted by the defendant, may be the same judge who hears and decides the contempt charges. This may raise questions about the impartiality of the judge.

      The following are a few of the many cases in the Arkansas Reports involving criminal contempt proceedings against individuals involving factual situations comparable to the one in the instant case: York v. State, 89 Ark. 72, Bene v. State, 22 Ark. 151, CarlLee v. State, 102 Ark. 122, State v. Morrill, 16 Ark. 386.


author: Conley Byrd, Justice.

text:
    INTERNATIONAL HARVESTER CORP. v. Kristina L. HARDIN et al
    78-148
    574 S.W. 2d 260
    Opinion delivered December 18, 1978
    (Division II)

      David Solomon and Barber, McCaskill, Amsler, Jones & Hale, for appellant.

      Daggett, Daggett & Van Dover, for appellees.
   Conley Byrd, Justice.

In 1968 W. R. Moore purchased a model 125 Cub Cadet garden tractor with a 42 inch mower attachment. The garden tractor, powered by a 12 horsepower engine, was hydrostatically operated — i.e. through the use of hydraulic controls the speed of the tractor either forward or backward could be increased or decreased without varying the speed of the 12 horsepower gasoline engine. Although the tractor was designed for use with a number of attachments, such as a snow plow, front-end loader and a rotary tiller, Mr. Moore only used it as a riding lawn mower. On October 5, 1974, Mr. Moore, without looking to his rear, backed the tractor over the feet of six year old Kristina L. Hardin, resulting in the loss of a toe on one foot and the complete amputation of the other foot. Kristina, by her father Clyde Hardin as next friend, brought this action against Mr. Moore and appellant International Harvester Corp. The alleged negligence of International Harvester Corp. was in failing to design the mower with an appropriate “cow catcher” device on the rear; failure to design said mower so that the rotary blade would be guarded when in reverse; failure to design said mower so that the cutting blade exposure would be at a minimum or with safety devices attached to the rear; failure to make proper tests and inspections; and failure to acquaint and warn W. C. Moore with the potential hazards and use of the mower.

The jury upon interrogatories found that both W. C. Moore and International Harvester Corp. were negligent, that such negligence was the proximate cause of the damages ($100,000 to Kristina L. Hardin and $25,000 to Clyde Hardin, the father) and apportioned the liability at 50% to W. C. Moore and 50% to International Harvester Corp. International Harvester has appealed contending that the trial court erred in refusing to permit a representative of International Harvester to remain in the room after the rule was invoked and that the trial court should have directed a verdict in favor of International Harvester.

POINT I. The record shows that at the beginning of the trial when the rule was invoked, James F. Bennett, Product Integrity Manager for the Agricultural Equipment Group of International Harvester and the employee in charge of the safety aspects of performance of International’s farm equipment was excluded from the courtroom over the objections of counsel for International Harvester. The exclusion of this type of witness from the courtroom is now controlled by the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Supp. 1977), Rule 615 which provides:

“Rule 615. Exclusion of witnesses. — At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party that is not a natural person designated as its representative by its attorney or (3) a person whose presence is shown by a party to be essential to the presentation of his cause.”

In response to appellant’s allegation of error, appellees state:

“Our answer to this argument is threefold, i.e., first it was not the intent or purpose of the statute to allow an expert witness to sit at the counsel table under the guise of being a representative of a corporate defendant, second, if error was committed by the court in denying the expert witness to remain in the court room, it was invited by appellant’s counsel, and, third, even if the failure to permit the witness to remain in the courtroom during trial was error, it was harmless error and unaccompanied by any showing of prejudice and therefore not reversible error.”

Appellees cannot bring themselves within the harmless error rule. The general rule is that error is presumed to be prejudicial unless the contrary affirmatively appears from the record. Only by surmise can it be said that the exclusion of witness Bennett was harmless. The law in this State does not permit speculation on the issue. Neither is the case of McCoy Farms, Inc., et al v. J & M McKee, 263 Ark. 20, 563 S.W. 2d 409 (1978), authority for the proposition asserted by appellees. In that case the sole defense to the foreclosure action was usury. Although we concluded in McCoy Farms v. J & M McKee, supra, that the trial court erred in excluding the appellant’s Arkansas counsel, we found affirmatively from the record that such error could not have been prejudicial to appellant. Furthermore, in oral argument on appeal, appellant in the McCoy Farms case was unable to bring forth any fact or theory that the Arkansas counsel might have brought out that would have sustained the defense of usury. In the case before us now, the issue involved the design of a lawn and garden tractor and the application of technical standards adopted by the American National Standards Institute — matters involving technical terms with which a lawyer is not necessarily familiar.

The suggestion that counsel for appellant invited the error is not supported by the record which shows that counsel in protesting the exclusion of witness Bennett correctly insisted that Bennett was appearing in his corporate capacity a an employee of International Harvester and, as such representative, counsel was entitled to have Bennett present at the counsel table.

Had the issue here been one of credibility such as was involved in Rushton v. First National Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378 (1968), the trial court would obviously not have abused its discretion in refusing to accept counsel’s designation of Bennett as a representative of the corporate defendant. However, the issue here was one of design of a lawn and garden tractor that was still in existence and subject to view. Under these circumstances when the trial court excludes from the courtroom the regular employees in charge of the safety design of equipment of the corporate manufacturer, we must conclude that the trial court’s ruling was contrary to Rule 615 of the Uniform Rules of Evidence, supra.

POINT II. The only witness called by appellees to show the defective design of the lawn and garden tractor was George Green, Jr., who the trial court ruled qualified as an expert on design, although he admitted that he had never designed a lawn mower. This witness admitted that the lawn and garden tractor and the lawn mower attachment were built in accordance with the applicable industry standards — i.e., the American National Standards Institute (ANSI). The American National Standards Institute is a body composed of representatives of consumers, manufacturers and insurance companies who address themselves to the safety of lawn mowers.

Witness Green referred to a 1962 Consumer Bulletin that suggested a riding lawn mower should be equipped with a cow catcher device mounted on the front and rear. He suggested that on the particular machine involved such a device could be constructed of 16 gauge steel. He pointed out that while being operated in reverse the height of the tractor tended to knock a child down and expose the child’s feet to the lawn mower. His proposed cow catcher device would tend to cause the child to fall toward the mower giving a warning of his presence to the operator. On cross-examination he elucidated by stating that he contemplated a device 18 inches in width which would go between the wheels of the tractor and would be attached to the lawn mower. The device should be connected to a switch that upon contact would operate a clutch brake device. He had not given much thought to the problem of disconnecting the mower from the tractor but suggested a swivelling device with a pin for removal of the mower attachment. Mr. Green readily admitted that he had never seen such a cow catcher device attached to a riding lawn mower and that he did not know of any manufacturer that made one. He readily admitted that his 18 inch cow catcher proposal would leave unprotected the rear wheels of the tractor and those portions of the lawn mower extending beyond the 18 inches.

Witness Green at first suggested that the lawn mower and tractor were defectively designed because the seat on the tractor did now swivel. However, he subsequently conceded that a swivel seat might not be a good safety device since it would tend to throw the operator from the tractor on uneven terrain.

Another design defect suggested by witness Green was that the tractor should be equipped with wide angled rear view mirrors. On cross-examination he questioned his own suggestion because of the practical problem in getting the mirror broken while mowing around shrubbery. He admitted that he had never seen a garden tractor equipped with such a mirror.

Other undisputed proof' in the record shows that the tractor traveled 8 miles per hour in its fastest forward speed and four miles an hour in its fastest rear speed. It was also shown that it took five seconds for the gasoline engine to stop after the ignition was turned off.

On the basis of the record before us we must conclude that the trial court erred in refusing to direct a verdict in favor of International Harvester Corp. Witness Green’s testimony represents the ultimate difference between doing something and talking about doing something. The cow catcher attachment about which Green testified was all based upon surmise and conjecture for he readily admitted that he had never seen such an attachment on a riding lawn mower and obviously had never tested such a design. In the final analysis his testimony is nothing more than untried theory. Furthermore, since the proof does not show what portion of the lawn mower was backed over the feet of Kristina L. Hardin the jury would have had to speculate on whether the proposed 18 inch “cow catcher” would have prevented the injury in question.

With respect to the swivel seat, Green himself admitted that a manufacturer should not manufacture in one defective design to avoid another. Such a suggestion as that and the one on the possibility of a rear view mirror would leave it to any jury to find a defective design in every vehicle manufactured by man.

Appellee cites South Austin Drive-In Theatre v. Thomison, 421 S.W. 2d 933 (Tex. Civ. App. 1967), as saying that the testimony of witness Green constituted substantial evidence. We disagree with that assertion. In the South Austin Drive-In Theatre, case a riding lawn mower manufactured by Gilson Bros. Co., a Wisconsin Corporation, was backed over a six year old boy severing his left leg. Gilson Bros. Co. was sued on the basis that it was negligent in failing to enclose the chain drive with a shroud in accordance with American National Safety Institute standards. The evidence showed that when the boy was discovered with his leg under the mower, the chain sprocket and drive had trapped his left leg until the mower had to be overturned before he could be pulled from underneath the mower. The expert witnesses testified that once the boy’s foot got caught under the chain drive, the unguarded chain drive would walk his leg underneath the shroud of the lawn mower like a caterpillar truck. Other mowers in evidence showed that other manufacturers had placed guards over the chain drives of their riding lawn mowers. Thus we see that the conduct of Gilson Bros. Co. in failing to guard the chain drive in accordance with the ANSI standards actually compounded the negligence of the operat- or, in reversing the riding lawn mower without looking, by walking the boy’s leg under the shroud guarding the rotary blades of the lawn mower. No such showing is made in the. case before us — in fact it is admitted that nobody had manufactured a “cow catcher” device for a riding lawn mower as suggested by witness Green.

For the reason herein stated, the judgment against International Harvester is reversed and remanded.

The judgment against Moore is affirmed for failure to comply with Supreme Court Rule 10.

Reversed and remanded.

We agree: Harris, C.J., and Fogleman and Hickman, JJ.