author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    LEOLA SCHOOL DISTRICT v. Lucille McMAHAN
    86-14
    712 S.W.2d 903
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986
    [Rehearing denied September 15, 1986.]

      G. Ross Smith & Associates, P.A., by: W. Paul Blume, for appellant.

      Cearley, Mitchell & Roachell, by: Marcia Barnes, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellee, Lucille Mc-Mahan, was a nonprobationary teacher who had been employed by appellant, Leola School District, for eleven years. During the 1981-82 school year, Mrs. McMahan was the subject of complaints from some parents concerning her alleged mistreatment of children in her classes. After proper notification and a hearing, the school board voted three-to-two not to renew Mrs. McMahan’s contract. Mrs. McMahan appealed to the Grant County Circuit Court where the trial court reversed the decision of the Leola School Board, finding that the board failed to substantially comply with the Arkansas Teacher Fair Dismissal Act by voting to nonrenew Mrs. McMahan for arbitrary, capricious and discriminatory reasons. The school board brings this appeal from that order. We affirm the trial court. Our jurisdiction is pursuant to Sup. Ct. R. 29(1 )(c) as we are being asked to interpret the Teacher Fair Dismissal Act of 1979, Ark. Stat. Ann. §§ 80-1264-80-1264.10 (Repl. 1980).

The determination not to renew a teacher’s contract is a matter within the discretion of the school board, and the reviewing court cannot substitute its opinion for that of the board in the absence of an abuse of discretion by the board. Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962); Chapman v. Hamburg Public Schools, 274 Ark. 391, 625 S. W. 2d 477 (1981). In our judicial review of the trial court’s decision, we affirm unless the court’s findings were clearly erroneous. Ark. R. Civ. P. Rule 52; Moffitt v. Batesville School Dist., 278 Ark. 77, 643 S.W.2d 557 (1982); Chapman, supra. It is not our function to substitute our judgment for the circuit court’s or the school board’s. Moffitt, supra; Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985).

Arkansas Stat. Ann. § 80-1264.9 (Repl. 1980) provided:

(b) Any certified teacher who has been employed continuously by the school district [for] three (3) or more years may be terminated or the board may refuse to renew the contract of such teacher for any cause which is not arbitrary, capricious, or discriminatory, or for violating the reasonable rules and regulations promulgated by the school board.

The question before the trial court was whether the Leola School Board refused to renew the appellee’s contract for reasons permitted by the Teacher Fair Dismissal Act. Moffitt, supra. A school board’s action in this regard is arbitrary and capricious only if the board’s decision is not supportable on any rational basis. Lee v. Big Flat Public Schools, 280 Ark. 377, 658 S.W.2d 389 (1983); Lamar School Dist. No. 39 v. Kinder, 278 Ark. 1, 642 S.W.2d 885 (1982).

The facts leading up to the board’s nonrenewal of Mrs. McMahan’s contract were as follows. The superintendent of the school district received some complaints from parents about Mrs. McMahan on December 13, 1981. Mrs. McMahan was not informed of these complaints at that time. On December 16, an evaluation was made of Mrs. McMahan and all of the other teachers. Mrs. McMahan was rated “satisfactory” on fifteen items, “needs improvement” on four items and “unsatisfactory” on one item. Mrs. McMahan was rated unsatisfactory in the area of rapport with parents and students. A conference was held January 4, 1982, at which time Mrs. McMahan was told by the superintendent of three complaints against her. The complaints were excessive harassment of students, remarks to students and parents asking if there were problems at home, and remarks to parents that if a student colors in black, the student has a problem. The superintendent recommended that Mrs. McMahan use tactics besides badgering students and that she refrain completely from the other activities. Mrs. McMahan submitted a report asking for further information about what she did that was considered harassment, denying that she asked her students about problems at home, and offering to quit making any comments to parents about the significance of coloring in black.

A second conference was held January 18 and the same three complaints were discussed. The superintendent wrote in his report of the conference that no positive plan for resolution of the problem had been submitted by the teacher since the first conference. Mrs. McMahan replied in writing, stating that she disagreed with the report but was willing to work with the superintendent and the board to solve the problem. She noted that she asked at both conferences for a written statement of what kind of harassment was stated in the complaints, but she has not received an explanation. Mrs. McMahan then responded to the complaints, stating that she has been as gentle as possible since the first conference so as not to harass her students, she does not question her students or talk to their parents about their home life, and she has not mentioned coloring in black again.

A third conference was held January 21 with Mrs. McMahan, the superintendent, and Mrs. Beverly Williams, the main complaining parent. There is no written record of what took place at this conference.

On February 3 the superintendent verbally informed Mrs. McMahan that there was no need for further conferences and he was leaning heavily towards recommending renewal of her contract. On February 18 the superintendent wrote a note to Mrs. McMahan, which was delivered February 22, telling her no further conferences were needed and a recommendation of renewal would be presented to the school board at the April board meeting.

On March 22, Mrs. Williams complained about an incident when she came to the school to have a conference with Mrs. McMahan over a discipline sheet. Another teacher, Mrs. Dennis, was included in the conference as a witness at the request of Mrs. McMahan. Mrs. Dennis actively participated in the conference and, as a result, Mrs. Dennis’s actions were the focus of Mrs. Williams’s complaint. The superintendent had a conference March 25 with Mrs. Dennis, Mrs. McMahan, and Mrs. Williams. The superintendent stated Mrs. McMahan interfered with the conference and was insubordinate and so he asked her and Mrs. Williams to step out into the hall so he could talk to Mrs. Dennis alone. After they left the room, Mrs. Williams called him and he went outside to find Mrs. McMahan lying on the floor, yelling and in apparent pain. Mrs. McMahan later explained that she fainted and that the stress had given her back spasms.

Despite the March incidents, at the April 8 school board meeting the superintendent recommended Mrs. McMahan’s renewal. The board did not take any action on her contract and instead asked the superintendent for more information on the March 25 conference before a decision would be made. Thereafter, the superintendent stated that he studied his information “based upon what I had recognized at the Board meeting”, then withdrew his recommendation. Mrs. McMahan was properly advised that he now planned to recommend nonrenewal of her contract because of “a recurrence of the type of problem for which you have been repeatedly counseled this year, as well as in previous years.” Mrs. McMahan requested a hearing before the school board on the superintendent’s change of recommendation and such a hearing was held on May 18. After hearing testimony from the superintendent, Mrs. Williams, Mrs. McMahan, and witnesses for Mrs. McMahan, the school board held an executive session and voted three to two to accept the superintendent’s recommendation of nonrenewal.

In finding that the school board abused its discretion, the trial court in an amended order made several findings of fact, including the following: that at the April 8 board meeting, a letter of complaint against Mrs. McMahan was read and Mrs. McMahan was not allowed to respond, even though in January she made a written request to be allowed to respond to complaints; that at its May meeting, the board denied Mrs. McMahan and her supporters the right to address the board, yet allowed complaining parties to address the board; that documents and testimony were introduced at the May 18 hearing of which Mrs. McMahan had no prior notice although she had requested this information pursuant to the Teacher Fair Dismissal Act; and that “ [t] he basis of the Board’s vote to nonrenew Plaintiff in 1982 was an incident that occurred in 1976 for which Plaintiff had been cleared. Two of the Board members who voted to nonrenew Plaintiff were the only two complaining parents in 1976.”

The trial court held that these actions all violate the Teacher Fair Dismissal Act in that they constitute arbitrary, capricious and discriminatory reasons to nonrenew Mrs. McMahan’s teaching contract.

The appellant first objects to the weight placed by the trial court on the fact that the superintendent originally recommended renewal and then, when asked by the board to provide more information, recommended nonrenewal. The appellant claims that the recommendation of the superintendent was not binding on the board and this reliance is accordingly misplaced.

Although it is true that the board was not bound to follow the superintendent’s recommendation, that recommendation was used by the board as the format for the nonrenewal hearing. One of the board members stated at the outset that the procedure for the hearing would be that the superintendent would first state his recommendation and fully explain his reasons, then any other persons would testify “offering evidence in support of his recommendation.” Mrs. McMahan would then be permitted to respond with her own statement and with the testimony of others. Then, “[a]fter the conclusion of all the witness’ statements, the Board will consider the evidence presented and act on the recommendation.” It is clear from the record that the recommendation was relied upon by the board members as they considered Mrs. McMahan’s contract.

The appellant also objects to the findings by the trial court that Mrs. McMahan was not allowed to address the board and respond to complaints at one of the board meetings and that documents and testimony were introduced at the hearing of which Mrs. McMahan had no prior notice. Appellant maintains these findings were both factually incorrect and that neither the opportunity to so address the board nor notice of documents and testimony is required by the Teacher Fair Dismissal Act.

We cannot say the trial court was clearly erroneous in finding that Mrs. McMahan was not allowed to address the board at its May meeting, although she was allowed to testify at the May hearing. It is more difficult to ascertain whether certain documents and testimony were introduced at the hearing of which Mrs. McMahan had no prior notice. Regardless, we do not reverse a trial court if its judgment is correct for any reason, Miller v. Dyer, 243 Ark. 981, 423 S.W.2d 275 (1968). The Teacher Fair Dismissal Act does require a school administrator to bring to a teacher’s attention in writing any problems that may lead to the teacher’s dismissal, Ark. Stat. Ann. § 80-1264.6 (Repl. 1980), and to maintain a personnel file which is available for the teacher’s inspection. § 80-1264.7. The latter statute includes a requirement that the teacher be allowed to submit for inclusion in the file any written information in response to any of the matter contained in the file. Clearly then it was intended by the Legislature that the teacher be apprised of any problems and permitted to respond. The lack of both prompt notice to Mrs. McMahan and the opportunity to respond immediately to allegations against her, prevented Mrs. McMahan from taking further action to satisfy the complaints against her. To thwart Mrs. McMahan’s efforts to respond and remedy the complaints, and then base her dismissal on these same complaints, supports the trial court’s finding that the board relied upon arbitrary and capricious reasons for nonrenewal.

Similarly, there was conflicting testimony as to whether the 1976 complaints formed the basis of the board’s decision and whether Mrs. McMahan was “cleared” of those complaints. Since there was testimony that supports the trial judge’s findings on this issue, we cannot say he was clearly wrong.

The record reveals that the same three complaints were used against Mrs. McMahan at each of her conferences and, ultimately, were used to nonrenew her contract. Yet, Mrs. McMahan apparently corrected the documented deficiencies insofar as she was able to with the explanation of those deficiencies that was afforded her.

The school board’s nonrenewal of Mrs. McMahan’s contract, based on the foregoing, constituted an abuse of discretion. In so holding, the trial judge did not impermissibly substitute his judgment for that of the board, but rather acted within the scope of judicial review of school board actions. We affirm his order.

As a second issue, the appellant objects to the trial court’s decision to reinstate Mrs. McMahan and to award her backpay for the years between her nonrenewal and her reinstatement. Appellant maintains that the Teacher Fair Dismissal Act does not mandate reinstatement as a remedy and that the award of backpay for a period exceeding one year violates this court’s holding in Marion County Rural School Dist. No. 1 v. Rastle, 265 Ark. 33, 576 S.W.2d 502 (1979) and Ark. Stat. Ann. § 80-1264.2 (Repl. 1980).

We answered appellant’s argument as to backpay in the recent case of Western Grove School Dist. v. Strain, 288 Ark. 507, 707 S.W.2d 306 (1986), where we held that by statute, a teacher’s contract with the school district continues unless nonrenewed for cause. We stated:

Once [the teacher] . . . was removed from her job by the school district without cause, her contract was in abeyance during the pendency of the lawsuit. Since the lawsuit resulted in her reinstatement, [the teacher] ... is entitled to be compensated for the period she was unemployed due to the actions of the school district.

The award of backpay was thus correct.

As to the reinstatement of Mrs. McMahan, the appellant maintains that a court should not grant reinstatement unless the return of the given teacher to á school’s environment will not cause unnecessary disruption because of ensuing hard feelings. The appellant has cited no authority for this proposition. Any time a school board is forced to reinstate a teacher it has dismissed, hard feelings may be the result. To refuse reinstatement on that basis would allow the board to succeed in its arbitrary action. Reinstatement was an appropriate remedy.

Affirmed.

Hays and Hickman, JJ., dissent.

Steele Hays, Justice,

dissenting. By this opinion the court has, I believe, assumed the role of deciding whether a teacher’s contract should or should not have been renewed. However, that responsibility under the law belongs neither to this court nor to the circuit court, but to the Leola School District. Kirtly v. Dardanelle Public Schools, 288 Ark. 86, 702 S.W.2d 25 (1986).

In White v. Jenkins, 213 Ark. 119, 209 S.W.2d 457 (1948), we said:

It is well settled that courts may not intervene to control matters in the discretion of administrative bodies such as school boards, in the absence of a showing of an abuse of such discretion. Necessarily, some latitude in the exercise of this discretion must be given to these boards. They represent the people of the locality affected and naturally are closer to the problems to be solved than any court or other agency could be.

And in Safferstone v. Tucker, 235 Ark. 70, 357 S.W.2d 3 (1962):

The law involved appears to be well settled. In this State a broad discretion is vested in the board of directors of each school district in the matter of directing the operation of the schools and a chancery court has no power to interfere with such boards in the exercise of that discretion unless there is a clear abuse of it and the burden is upon those charging such an abuse to prove it by clear and convincing evidence.

The Teacher Fair Dismissal Act (Ark. Stat. Ann. § 80-1264 et seq., Repl. 1980) provides that a teaching contract may be nonrenewed for any reason, so long as it is not arbitrary, capricious or discriminatory. By including the word “any” the legislature emphasized its intention not to invade the “broad discretion” of school boards in deciding which teachers should be retained, except where the nonrenewal is arbitrary, capricious or discriminatory. Ark. Stat. Ann. § 80-1264.9(b) reads in part:

Any certified teacher. . . may be terminated or the board may refuse to renew the contract of such teacher for any cause which is not arbitrary, capricious, or discriminatory . . . (My italics).

We have interpreted that provision to mean the board’s action will not be reversed if “any rational basis” exists for nonrenewal, Lamar School District No. 39 v. Kindy, 278 Ark. 11, 642 S.W.2d 885 (1982), and the board’s discretion was not abused. “Since this determination not to renew the appellant’s contract was a matter within the discretion of the school board, the reviewing court could not substitute its opinion for that of the Board in the absence of an abuse of discretion by the Board.” Chapman v. Hamburg Public Schools, 274 Ark. 391, 625 S.W.2d 477 (1981).

There is substantial evidence in this record for Mrs. McMahan’s nonrenewal by the Leola School Board. Mrs. McMahan’s performance over a period of time was shown to be deficient in her relations with some parents and children. Her classes (first and second grade pupils) were divided into fast learners and slow learners, that the slow learners were ridiculed by the other students. One parent, on receiving her child’s report card, was told by Mrs. McMahan, “The next one will be worse.” There was evidence that some children were afraid of her, that she yelled at them, that she harassed and picked on some. Much of the proof centered on one pupil, Chad Williams, whose difficulties with Mrs. McMahan were the cause, at least as his parents saw it, of nervousness, bed-wetting and vomiting. On several occasions he wet his pants in the schoolroom, once after a request to go to the restroom had been refused. He was made to wipe up the floor in front of the other children. Mrs. Williams said that Mrs. McMahan’s reaction to her concerns on her son’s behalf was to refuse to speak to her when they met in public. There was other proof of a similar vein, including testimony that Mrs. McMahan questioned children indiscreetly about “problems at home.”

It must be said in fairness there was much offsetting proof, there were parents who praised Mrs. McMahan, and Mrs. McMahan offered a number of letters from devoted children. But those conflicts were for the school board to weigh and resolve. Once particularly unfavorable incident is virtually undisputed and would provide in and of itself a basis for nonrenewal. Mr. Pharr and Mrs. Williams described the event: Mrs. McMahan was unwilling to meet with Mrs. Williams without a witness present. She chose Mrs. Dennis, another teacher. When Mrs. Dennis interjected her own opinions concerning Chad, the three women consulted Mr. Pharr, the superintendent. His attempts to mediate were frustrated by what he described as insubordinate conduct by Mrs. McMahan to the extent that the meeting was disrupted. Finally, he asked Mrs. Williams and Mrs. McMahan to step outside while he spoke with Mrs. Dennis. He said after they went out Mrs. Williams came to the door and called him and Mrs. McMahan was lying on the floor outside the conference room “hollering and screaming.” He said the incident disturbed other classes.

Mrs. Williams’ description corroborated Mr. Pharr’s. She said when she and Mrs. McMahan stepped outside, Mrs. McMahan listened at the door a few minutes and then lay down on the floor and “began screaming and hollering.” Mrs. McMahan’s explanation was that she had been under stress and had fainted, though how that explains the alleged screaming, is not clear. There was some suggestion that the onset was due to muscle spasms of her back, yet there was testimony that she was back at school that afternoon. Whether this bizarre scene was explainable in terms of a physical or an emotional cause, and to what extent it reflected on Mrs. McMahan’s competence, was for the school board to decide.

The circuit judge virtually ignored the foregoing evidence, and looked instead to matters that were collateral to the issue of whether there was “any cause” to nonrenew Mrs. McMahan’s contract. The fact that Mr. Pharr may have been ambivalent is entirely beside the point, as it is the school board’s responsibility to decide on renewal. Nor is the fact that the school board would not hear Mrs. McMahan’s supporters at the May 6 meeting of any relevance. The open meeting was held on May 18 and Mrs. McMahan was permitted to offer whatever she chose at the meeting. The board was not required to hold two open meetings on the issue. Lastly, the finding that 1976 charges were the basis for the current nonrenewal was clearly erroneous. Certainly the board had the right to discuss earlier problems. Had the board relied on outdated charges alone, such a finding would be appropriate, but the fact is there was ample evidence of recent origin to sustain the board’s action.

I believe we should adhere to our many cases that say the courts will not invade the province of the school board in the exercise of its authority. Chapman v. Hamburg Public Schools, supra.

Hickman, J., joins in this dissent.

       This act was repealed, effective July 4,1983, by the Teacher Fair Dismissal Act of 1983, Ark. Stat. Ann. §§ 80-1266 — 80-1266.09,80-1266.11 (Supp. 1985). However, the 1979 Act controlled at the time the board made its decision.

       These proceedings occurred prior to the effective date of the Teacher Fair Dismissal Act of 1983.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Mamie KNOX v. Billy GRAY, II
    86-65
    712 S.W.2d 914
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986

      Gordon & Gordon, P.A., by: Edward Gordon, for appellant.

      Matthews & Sanders, by: Gail Matthews and Marci Talbot, for appellee.
   George Rose Smith, Justice.

This is an action for personal injuries suffered by the plaintiff, Mamie Knox, when she fell as she was descending the two front-porch steps at the house she had been renting from the defendant, Billy Gray, II, for the preceding six months. The trial court sustained the defendant’s motion for summary judgment, which was supported by affidavits and controverted by the plaintiff’s affidavit. The appeal comes to us under Rule 29(l)(o).

It is important to state at the outset that the complaint does not allege a violation of any duty owed by Gray as landlord to Mrs. Knox as his tenant. Instead, the complaint specifically asserts that Gray was the owner of the premises, that the plaintiff was an invitee, and that Gray was negligent in failing to furnish the plaintiff a safe place to descend from the porch to the ground. The proof is that the steps were decidedly unstable, consisting of boards laid loosely across concrete blocks near each end.

The trial judge was right, because the plaintiff was not an invitee as a matter of law, no issue of fact being presented. A tenant has the exclusive right to possession of the property and thus, with regard to third persons, occupies a position on a parity with that of an owner and precisely opposite to that of an invitee. Chapter 11 of AMI, which treats this subject, is entitled “Owners and Occupiers of Land.” The pertinent instructions state that an owner or occupant of land owes certain duties to a trespasser, a licensee, and an invitee. AMI Civil 2d, 1102, 1103, and 1106 (1974). In DeVazier v. Whit Davis Lbr. Co., 257 Ark. 371, 516 S.W.2d 610 (1974), we discussed the duties owed to an invitee or licensee by the occupier or possessor of land.

Counsel for the appellant, in insisting that a tenant can also be an invitee, italicize the word “tenants” in this quotation from Prosser: “Thus salesmen, workmen seeking employment, or prospective purchasers or tenants of land are considered invitees when they come to a place which they have good reason to believe to be open for possible dealings with them. . . .” Prosser, Torts, 390 (4th ed. 1971). Prosser, however, was speaking not about tenants but about prospective tenants. All five of the cases cited to support the reference to tenants involved plaintiffs who were injured while they were inspecting premises with a view to renting them.

The duties owed by a landlord to his tenant are determined by principles quite different from those applicable to the owners or occupiers of land and their invitees. Upon the undisputed facts the plaintiff is not in a position to invoke the protection owed by a landowner to an invitee.

Affirmed.

Holt, C.J., not participating.


author: George Rose Smith, Justice. David Newbern, Justice,

text:
    Mildred McCARVER and MUNRO-CLEAR LAKE FOOTWEAR v. SECOND INJURY FUND
    86-46
    715 S.W.2d 429
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for petitioner.

      David L. Pake, Second Injury Fund, for respondent.
   George Rose Smith, Justice.

In this and a companion case we granted petitions to review decisions of the Court of Appeals reversing awards made by the Workers’ Compensation Commission. Second Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639 (1986); Second Injury Fund v. Riceland Foods, 17 Ark. App. 104, 704 S.W.2d 635 (1986). The two majority opinions of the Court of Appeals supplemented each other, but they dealt with a single issue, which is all we need consider.

The issue: Is the Second Injury Fund liable when an employee sustains a second injury while still working for the employer in whose employment he sustained the first injury? The Commission held the Fund liable; the Court of Appeals reversed.

In this case Ms. McCarver was working for Munro-Clear Lake Footwear when she suffered a back injury in 1979. She returned to work with an impairment of 5% to the body as a whole. In August, 1983, she suffered a compensable injury to her shoulder, arm, and hand. That too was a 5% impairment in itseff, but the combination of injuries resulted in a total impairment of 30%. The claimant will be paid in any event. The question is whether the extra 20% impairment is to be paid by the employer’s insurance carrier or by the Second Injury Fund.

The policy reasons underlying the second injury statute, having to do with the continued employment and the reemployment of workers handicapped by an earlier injury, were considered by the majority and dissenting opinions in the Court of Appeals. The opinions also went into the basic question of statutory construction. We perceive nothing really new to add to the analysis presented by the Court of Appeals.

We are of the view that the majority opinions were right in putting primary emphasis on the language of the statute. On March 31, 1981, shortly before both the second injuries in these cases occurred, the legislature made this significant addition to the pertinent section of the Workers’ Compensation Law:

The Second Injury Fund established herein is a special fund designed to insure that an employer employing a handicapped worker will not, in the event such worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his employment. [Italics supplied.] Ark. Stat. Ann. § 81-1313(i)(l) (Supp. 1985).

In commenting on the sentence just quoted, the majority in the Riceland. case made this observation:

Obviously, if as provided in the very first sentence of the statute — the sentence stating the reason and purpose for the statute — the employer employing a handicapped worker is to be liable only for the disability or impairment that occurs when the worker sustains an injury during the employment, then it must follow that such employer will be liable for all the disability or impairment that occurs when the worker is injured while in that employment.

We find the court’s reasoning to be convincing.

Affirmed.

Hickman and Newbern, JJ., dissent.

David Newbern, Justice,

dissenting. I thoroughly disagree with the majority opinion in this case as well as in Second Injury Fund v. Riceland Foods (86-50), which is being released today, to the extent it echoes this decision.

First, the majority says Ark. Stat. Ann. § 81-1313(i)(l) (Supp. 1985) contains language persuasive to the effect that the second injury fund should not be liable because it precludes an employer from having to pay for any injury other than one sustained while the worker was in his employment. The simple answer to this point is that if the second injury fund has to pay in his case that statute will not be violated in any way. The employer will not be paying for any injury not incurred while the employee worked for him. He will only be paying for less than the entire disability.

Second, the majority is persuaded by the court of appeals’ reference to that same statutory section and the court of appeals’ reasoning that if the employer is required to pay for only such injury as the worker sustains in his employment “it must follow that such employer will be liable for all the disability or impairment that occurs when the worker is injured while in that employment.” I cannot follow that reasoning. Why must the employer be liable for all? Neither the court of appeals majority nor that of this court explains. To the contrary, the employer need not be liable for all if the legislature has relieved the employer to the extent the sum of disability is greater than its parts by creating a second injury fund for that very purpose.

Third, looking at the opinion of the court of appeals majority, it becomes apparent that the principal reason for the result reached is fear of insolvency of the second injury fund. In this case the court of appeals cited the article by Bill Bassett expressing his personal fear of the fund’s potential insolvency. W. Bassett, Second Injury Law, Old and New, The Arkansas Lawyer, July, 1983, p. 122 at p. 124. In the Riceland case, the court of appeals’ opinion goes further, citing our opinion in Arkansas Workmen’s Compensation Commission v. Sandy, 217 Ark. 821, 233 S.W.2d 382 (1950), where there is language requiring strict compliance with the statutory requirements for liability of the fund to avoid making it insolvent. Also cited in the Riceland case majority court of appeals opinion is Ark. Stat. Ann. § 81-1348(a) (Supp. 1985) which provides that if the fund becomes insolvent the payments from it will cease, and the employer will, after July 1,1983, not be liable to pay what would otherwise have been paid by the fund.

The court of appeals’ quotation from the Sandy case was not even the language of this court. Rather, it was language from the workers’ compensation commission’s opinion in that case which our opinion quoted but neither approved nor disapproved. Our decision was only not to reverse the commission’s factual conclusions as to the extent of the disability of the worker. The case was a far cry from a decision stating policies with respect to the extent of the second injury fund’s exposure. Nor does the cited statute do more than provide for the contingency of the fund’s insolvency. It gives no guidance whatever as to the Arkansas General Assembly’s intent in creating the fund and, specifically, whether the fund should pay for disability in excess of that created by a second injury in the employment of the same employer who employed the worker when the first injury occurred.

Fourth, scant attention, if any, is paid by the court of appeals majority, or the majority of this court, to the policy behind the second injury fund legislation. As Professor Larson says, second injury funds have been created to solve the dilemma of apportionment of injury. His example is that an employee who loses one eye is far less disabled than he would be if he should lose the other eye in a later accident. Thus, the employer is subject to far higher insurance rates if he hires a person with only one eye. The employer thus has a strong financial incentive to discharge the worker who, by virtue of his handicap resulting from the loss of one eye, causes this “kind of aggravated liability.” 2 A. Larson, Workmen’s Compensation Law, § 59.31(a) (1983). The policy of eliminating this financial incentive is directly implicated whether an employer is considering hiring a handicapped worker whom he had not previously employed or retaining a worker who is permanently injured while working for him. I agree with Judge Glaze’s dissent in the Riceland case to the effect that it is no answer to this problem to cite Ark. Stat. Ann. § 81-1335(b) (Repl. 1976). The fact that an employer may be sanctioned for firing an employee for bringing a workers’ compensation claim places no requirement on an employer to hire or retain a handicapped employee. Nor should a handicapped employee be put in the position of having to show his dismissal was wilfully discriminatory on the basis of his having filed a claim when the employer’s intent may have nothing to do with retaliation but is simply a recognition that his insurance rate would be lower with a non-handicapped employee on the job.

Sixth, I believe it is traditional and useful to look to decisions in other jurisdictions when we have, as here, a question of first impression. Although the workers’ compensation laws and second injury fund statutes may differ in detail from ours, surely the method of implementation of the policy behind the second injury fund law in other states is relevant. In Estep v. State Workmen’s Compensation Commissioner, 298 S.E.2d 142 (W.Va. 1982), the West Virginia Supreme Court of Appeals was faced with this same question and said:

It is the Commissioner’s view that the second injury statute applies in circumstances where the employee suffers both injuries while employed by the same employer as well as when the injuries are suffered during employment with different employers. We agree. “The second injury life award statute, W. Va. Code § 23-3-1, was purposely designed to encourage employers to hire disabled workers by not charging an employer for preexisting disabilities.” Syllabus Point 2, Pertee v. State Workmen’s Compensation Commissioner, W. Va. 255 S.E.2d 914 (1979). This policy would be defeated if the second injury statute did not apply to cases where the employee suffered both injuries while working for the same employer. In such cases, the employer would have a financial incentive to dismiss the injured employee and hire a non-disabled worker. Application of the second injury statute here places all injured workers on the same footing regarding the employer’s compensation liability for subsequent injury resulting in permanent total disability.
Therefore, when an employee suffers a second injury, which when combined with the effect of a prior injury results in permanent total disability, and both injuries occurred while the claimant worked for the same employer, the employer is chargeable for the compensation resulting from the second injury and the second injury fund is chargeable for the remainder due the claimant.

Other cases in which a second injury fund has been held liable for disability resulting from more than one injury while the worker was in the employ of a single employer include: Zabita v. Chatham Shop Rite, Inc., 505 A.2d 194 (N.J. App. 1986); Vaughn v. United Nuclear Corporation, 650 P.2d 3 (N.M. App. 1982); Stanick v. Seiberling Rubber Co., 253 N.Y.S. 548 (App. Div. 1964); and O’Grady v. Sealright Corp., 374 N.Y.S. 424 (App. Div. 1975). I have found no cases from other jurisdictions to the contrary.

I respectfully dissent.

Hickman, J., joins.


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

text:
    Renee THIGPEN v. Glen Richard POLITE and Barbara POLITE
    86-32
    712 S.W.2d 910
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986

      Gary Eubanks & Associates, by: James Gerard Schulze and William Gary Holt, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   George Rose Smith, Justice.

Following a minor collision on an apartment parking lot, Renee Thigpen brought this suit for personal injuries and property damage against the other driver, Glen Polite, then 17, and his mother, who had signed his application for a driver’s license. The jury returned a verdict for the defendants. In a motion for a new trial the plaintiff asserted that since the defendants admitted negligence and did not claim contributory negligence, the verdict awarding no damages was clearly against the weight of the evidence and entitled the plaintiff to a new trial. The only point for reversal is that the court erred as a matter of law in refusing to grant a new trial. We can find no merit in the appellant’s argument and affirm the judgment.

It is an appellant’s responsibility to bring up a sufficient record, but there are omissions in this record. At an unreported pretrial conference there was an admission of liability by the defendants, but neither they nor their attorney has admitted that the plaintiff suffered any personal injury or property damage. Hence the plaintiff had the burden of proving her damages. The record does not contain the court’s instructions to the jury; so we must presume that correct instructions were given. Cotton v. Brasher, 175 Ark. 209, 298 S.W. 1035 (1927). The appellees’ brief states that the jury was instructed with regard to causation and damages; in any event we would assume such instructions were given.

We adhere to our practice of stating the facts most favorably to the verdict. The plaintiff testified that she was approaching a speed breaker at three or four miles an hour. Glen said he was backing out of a parking space and pulling to his left before going forward. He said he guessed the vehicles scraped (which would have been possible as he described the incident). He had not looked both ways and admitted the accident was his fault. The only damage to Glen’s pickup was a smudge of paint from the other car, on his righthand door. He had no idea whether the plaintiff’s car had been damaged. She testified that her front fender was dented.

Immediately after the accident the plaintiff obtained information about the defendants’ insurance. Her husband testified about his wife’s asserted injury. On cross examination the defendants’ attorney produced an estimate of damage, which the witness admitted he had submitted to the defendants’ insurance company. The estimate totaled $551.22 and included not only $153.95 for a fender but also $102.20 for a wheel, a charge for aligning the front end, and other items the witness could not explain. He said the insurance adjustor refused to pay the bill because his insured had not caused the damage. That attempt to mulct the insurer may have aroused the jury’s indignation.

The plaintiff admittedly said at the time that she was not hurt, but she claimed that she began having a headache later that day. At the trial her doctor testified that she had told him she had been in an automobile accident during which she sustained a jerking of her neck and torso. (She did not so testify.) The doctor found “a typical whiplash type of injury.” In view of the parties’ description of the accident, the jury could have found that two slowly moving vehicles made a scraping contact that was too slight for the plaintiff to have suffered any injury at all. The trial judge’s refusal to grant a new trial, with the implication that he found the verdict not clearly against the preponderance of the evidence, was not a clear and manifest abuse of discretion, as we would have to find to justify a reversal. Warner v. Liebhaber, 281 Ark. 118, 661 S.W.2d 399 (1983).

In the motion for new trial counsel for the plaintiff recognized that the jury might have disregarded her proof of physical injury and property damage, but it was insisted that since the defendants had admitted “some damage” (apparently scraped paint) and also fault, the verdict for no damages was clearly against the weight of the evidence. If the jury had awarded nominal damages, the award might well have been sustained. But when there is no property right to be vindicated by nominal damages, the issue being negligence only, the jury’s failure to award nominal damages is not reversible error. Harlan v. Curbo, 250 Ark. 610, 466 S.W.2d 459 (1971).

Both the dissenting opinions seem to be based on the trial court’s asserted error in submitting a verdict form that permitted the jury to find for the defendants. The short answer to that argument is that the record shows no objection to the court’s action; so it was too late for the point to be raised in a motion for new trial after the plaintiff had speculated on the possibility of a favorable verdict.

Affirmed.

Purtle and Newbern, JJ., dissent.

John I. Purtle, Justice,

dissenting. My understanding of this case and the arguments on appeal differ in several respects from that of the majority. As I understand the matter the only issue presented is whether the trial court was required to set aside the jury verdict under the circumstances of this case.

The defendant (appellee) admitted liability at the commencement of the trial and obtained a ruling in limine preventing the plaintiff (appellant) from producing evidence relating to liability during the course of the trial. However, throughout the trial, and brief in this court, appellee unmistakably refers to the liability aspect of the occurrence.

It is my opinion that having admitted liability the court and the jury were bound to find in favor of the plaintiff (appellant). I do not read Harlan v. Curbo, 250 Ark. 610, 446 S.W.2d 459 (1971), to stand for the proposition for which it is quoted in the majority opinion. The jury in Harlan was asked to apportion the negligence and they found it to be 60%-40% in favor of the plaintiff-appellants. The question came up on the inadequacy of damages — not liability. The holding in Harlan was: “We must therefore adhere to our usual rule, that the trial court’s failure to award nominal damages is not reversible error.”

In Brophy v. Mahaffey & Associates, 252 Ark. 811, 481 S.W.2d 360 (1972), we held that it was not error to submit only one verdict form to the jury — a form finding for the plaintiff. The appellants in Brophy had conceded they were indebted to the appellees in some amount. In the case before us there should have been only one verdict form submitted to the jury. It should have been in favor of the plaintiff with the amount of damages left blank. It should have been up to the jury to place some figure in the blank.

In the case of Smith v. Arkansas Power & Light Co., 191 Ark. 389, 86 S.W.2d 411 (1935), this court stated:

When the undisputed evidence shows that plaintiff is entitled to recover substantial damages, a judgment will be reversed which awards only nominal damages, because a judgment for nominal damages is, in effect, a refusal to assess damages. When substantial damages are awarded, a judgment will not be reversed because of inadequacy, if there be no other error than that committed by the jury in measuring the damages. But a judgment even for substantial damages will be reversed where the undisputed testimony shows the damages to be inadequate, if error of a substantial and prejudicial nature was committed at the trial of the case.

This same language was approved in Worth James Constr. Co. v. Herring, 242 Ark. 156, 412 S.W.2d 838 (1967). I am of the opinion there was no substantial evidence upon which the jury could have found for the appellee. Also, see Barger v. Farrell, 289 Ark. 252, 711 S.W.2d 773 (1986).

The trial court’s denial or granting of a new trial is governed by A.R.C.P. Rule 59. On review the test depends on whether the motion was granted or denied; if the motion was granted we will affirm absent a manifest and clear abuse of discretion. If the motion was denied we will also affirm if there is substantial evidence to support the verdict. Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982).

The majority makes the same mistake the trial court and the jury made. The majority opinion is an obvious attempt to show how the jury could have decided liability and damages had the issues been open for them to decide. Apparently the appellee’s strategy of admitting liability and bridling the appellant’s witnesses about describing the accident worked. The majority takes three pages arguing the facts which are not in issue. No doubt the appellant could have presented a much stronger case had it been known that liability was still an issue.

An additional reason why the trial court should be reversed is A.R.C.P. Rule 59(a) which sets out the grounds for granting a new trial. One of the grounds stated is: “(6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law.” The verdict in the present case meets both criteria. I think the trial court had an absolute duty to set aside this verdict.

I would reverse and remand for a new trial.

David Newbern, Justice,

dissenting. The majority opinion notes that the appellees conceded “liability” in this case. It was more than a concession of “negligence.” One of the elements of the tort of negligence is damages. Dean Prosser stated the distinction as follows:

Negligence, as we shall see, is simply one kind of conduct. But a cause of action founded upon negligence, from which liability will follow, requires more than conduct. The traditional formula for the elements necessary to such a cause of action may be stated briefly as follows:
1.....
4. Actual loss or damage resulting to the interests of another. Since the action for negligence developed chiefly out of the old form of action on the case, it retained the rule of that action, that proof of damage was an essential part of the plaintiffs case. Nominal damages, to vindicate a technical right, cannot be recovered in a negligence action, where no actual loss has occurred. The threat of future harm, not yet realized, is not enough. Negligent conduct in itself is not such an interference with the interests of the world at large that there is any right to complain of it, or to be free from it, except in the case of some individual whose interests have suffered.

As there must be injury or damages to produce liability, a concession of liability is a concession that there was injury or damages.

The only question before the jury should have been the amount of damages, if any, suffered by the appellant. The jury, however, returned a verdict for the appellees (defendants). The majority opinion ignores the problem by saying the trial court’s refusal to grant a new trial “with the implication that he found the verdict not clearly against the preponderance of the evidence” was not an abuse of discretion. There clearly is no question in this case about the preponderance of the evidence on the issue of liability. The jury’s verdict, like the majority opinion, is completely inconsistent with the appellees’ concession of liability.

Our rules permit not only review but appeal of an order denying a motion for new trial. Ark. R. App. P. 2(a)3. If we were deciding whether a new trial should or should not have been granted because the jury misjudged the preponderance of the evidence, the narrower controversy over the impropriety of appellate review of that matter would be implicated. See 11 C. Wright and A. Miller, Federal Practice and Procedure, Civil, § 2818 (1973). Again, that is not the issue here.

In my view, it was an abuse of the trial court’s discretion not to have granted a new trial, given the clear mistake of the verdict for the defendants. The appellees cite Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982), for the proposition that when a defendant has admitted “fault” in an accident case it is not improper for the jury to return a verdict for the defendant. That is correct, but there is a difference, as discussed above, in admitting “fault” as opposed to admitting “liability.” More appropriate in this case is the appellant’s citation of Brophy v. Mehaffey & Associates, 252 Ark. 811, 481 S.W.2d 360 (1972), where we upheld the trial court’s action in giving the jury only a plaintiffs verdict form where the defendant had admitted he owed some money to the plaintiff for services, and the only question was the amount.

Ark. R. Civ. P. 59(a) provides:

Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues on the application of the party aggrieved, for any of the following grounds materially affecting the substantial rights of such party:
(1) . . . .
(6) the verdict or decision is clearly contrary to the preponderance of the evidence or is contrary to the law
(8) error of law occurring at the trial and objected to by the party making the application ....

The majority attempts to bolster its opinion by pointing out that no objection was made to verdict forms given to the jury. If this appeal were based on denial of a motion for a new trial which was made to seek correction of a specific error on the part of the court, pursuant to Rule 59(a)(8), I could agree. However, the motion for a new trial and this entire appeal are on the ground that it was simply a mistake to reach a result which is patently inconsistent with the appellees’ concession of liability. I could understand the position of the majority better, and I would vote to affirm, had the jury returned a verdict for the appellant but found “0” damages due to the weakness of the appellant’s evidence on the amount of his loss. But here the jury returned a defendants’ verdict altogether. While this may seem to be a highly technical distinction, to me the return of a flat defendants’ verdict showed there was serious confusion either on the part of the jury or the judge or both. In my opinion, it was within the trial judge’s discretion to grant a new trial pursuant to Rule 59(a)(6), and he clearly should have done so.

The majority opinion has focused on the wrong element of Rule 59(a)(6) by discussing whether the verdict was clearly contrary to the preponderance of the evidence. The preponderance of the evidence on the matter of liability became moot when the appellees (defendants) conceded it. The verdict in this case was, in the words of Rule 59(a)(6), “contrary to the law” because the defendants, who had conceded liability, were not entitled to a verdict, Brophy v. Mehaffey and Associates, supra, no matter how indignant the jury may have been.

I respectfully dissent.


author: Darrell Hickman, Justice.

text:
    Julia HUGHES v. STATE of Arkansas
    CR 86-28
    712 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986

      William R. Simpson, Jr., Public Defender, and Howard W. Koopman, Deputy Public Defender, by: Carolyn P. Baker, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Julia Hughes was convicted of murdering her two year old son, Anthony, by throwing him into a ditch where he drowned. Hughes had been in and out of the Arkansas State Hospital in recent years and although she had three children, none of them were in her exclusive custody. But on May 6, 1985, Anthony was with her.

There was an abundance of evidence of Hughes’ guilt and she was sentenced to life imprisonment. Her conviction must be reversed because at one time during her interrogation she asked for a lawyer and the questioning did not cease. Her statements and actions thereafter should have been excluded from the evidence.

Hughes’ parents notified the police after she left the house in the morning with Anthony and then returned home without him. When the child was not found, Hughes was picked up for questioning. She was read her rights and said she understood them, although she refused to sign a rights waiver form claiming that she could not read or write. She told the police she had thrown Anthony in the river and it was too late to get him any help. These statements were made to two police officers, Beavers and Alexander. No objection was made to their introduction.

Several hours later Detective LeMaster questioned her about Anthony’s disappearance. Hughes stated that she did not know what they were talking about. Later she remarked it did not make any difference because he was gone. She said he was dead but then said maybe he was not and they should check on him. Eventually the conversation led back to her saying she did not know what the officers were talking about. Those statements are also not challenged by Hughes.

About 5:30 p.m., Eddie Montgomery, a deputy prosecuting attorney, and Becky Fribourgh, an employee of the prosecutor’s office, were introduced to Hughes by LeMaster. At that point Hughes said she wanted to talk to a lawyer. LeMaster asked her who she wanted them to call and she did not reply; then he said, “Do you want us to call your attorney?” She still did not reply. LeMaster said it was very important that Anthony be found and that this was the most important thing right then. Montgomery and LeMaster left the room. Fribourgh, who knew Hughes previously through the SCAN program, got Hughes matches for her cigarettes and water and returned to the interview room. Hughes made an irrelevant remark that Fribourgh had crooked teeth, then apologized. Fribourgh asked Hughes what she had done that day and Hughes said she did not know what Fribourgh was talking about. Hughes then again asked Fribourgh what she had done that day. Fribourgh told her and Hughes said, “Well, you’re too pretty to feel guilty about my baby. Do you think my baby’s still alive?” Fribourgh said she did not know and asked where the baby was.

Several times Hughes said she did not know what Fribourgh was talking about. Fribourgh said she would ask another question or start talking about something else and Hughes would return to asking whether her baby was still alive. Once when Fribourgh asked where the baby was, Hughes said that she had “pitched him in the river.” Fribourgh asked where and Hughes said Sweet Home and tried to give Fribourgh directions. She then offered to take Fribourgh to the spot. She asked if Fribourgh would get LeMaster. LeMaster came in and Hughes told him that she had thrown Anthony in the river around Sweet Home. He continued to talk to her and “finally” she said she would take him and show him. She led the officers and Fribourgh to the place where Anthony was found dead. After her return to the station, Hughes signed a waiver of rights and dictated an incriminating statement.

The trial judge ruled that Hughes had initiated further conversation and that she had waived her right to a lawyer. That is decidedly not the case. She did not waive the request and she did not initiate further conversation. The police and officials were bound to stop the interrogation when Hughes asked for a lawyer, which they did not do. Therefore her statements made after the request are inadmissible.

Edwards v. Arizona, 451 U.S. 477 (1981), laid down a clear and easy rule that interrogation must stop when a suspect asks for counsel. The Court said:

When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.

We have followed Edwards. Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985); State v. Branam, 275 Ark. 16, 627 S.W.2d 8 (1982); Dillard v. State, 275 Ark. 320, 629 S.W.2d 291 (1982).

In Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490 (1984), the United States Supreme Court elaborated further on Edwards'.

An accused in custody, ‘having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him,’ unless he validly waives his earlier request for the assistance of counsel. Edwards v. Arizona, 451 U.S., at 484-485, 101 S.Ct., at 1885. This ‘rigid’ prophylactic rule, Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2569, 61 L.Ed.2d 197 (1979), embodies two distinct inquiries. First, courts must determine whether the accused actually invoked his right to counsel. See, e.g., Edwards v. Arizona, supra, 451 U.S., at 484-485, 101 S.Ct., at 1884-1885 (whether accused ‘expressed his desire’ for, or ‘clearly asserted’ his right to, the assistance of counsel); Miranda v. Arizona, 384 U.S., at 444-445, 86 S.Ct., at 1612 (whether accused ‘indicate[d] in any manner and at any stage of the process that he wish[ed] to consult with an attorney before speaking’). Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police,and (b) knowingly and intelligently waived the right he had invoked. Edwards v. Arizona, supra, 451 U.S., at 485, 486, N.9, 101 S.Ct., at 1885, n.9

There is no doubt that Hughes asked for a lawyer. That is conceded. Furthermore, the police officials knew it was their duty to furnish Hughes a lawyer. The questions to Hughes about who she wanted to call were obviously meant to discourage her from exercising her rights and not a good faith effort to comply with the law. The interrogation continued until she told them what they wanted to know.

The United States Supreme Court defined interrogation in Rhode Island v. Innis, 446 U.S. 291 (1980):

‘interrogation,’ as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.
We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.

When Hughes asked for counsel, LeMaster asked who she wanted them to call and then emphasized that the most important thing was to find Anthony. Fribourgh went in with refreshments and asked Hughes what she had done that day. Fribourgh and LeMaster should have known that those remarks were likely to elicit an incriminating response. Hughes was already suspected of murder, she had been interrogated for several hours, and after she asked for a lawyer her request was not honored.

The Edwards rule is a clear one and officials can easily comply with it. Furthermore, it is also easy to determine when an accused initiates further conversation. For example in Dillard v. State, supra, Dillard told the sheriff he wanted an attorney but continued to ask questions and talk about the case. He was repeatedly told that if he wanted an attorney he should not say more, but Dillard chose to continue the conversation. We affirmed the admission of the statements.

Here the evidence obtained was not even necessary for the state’s conviction. The state could have followed the Edwards rule and still would have had ample incriminating evidence. All the statements after Hughes requested counsel should have been excluded; that includes her statements to Fribourgh, the agreement to lead the police to the child, her statements in the car, and the statement she made upon her return to headquarters.

Under Ark. Stat. Ann. § 43-2725 (Repl. 1977), as put into effect by our Rule 11 (f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the other points argued or in the other objections abstracted for review.

Reversed and remanded.

Holt, C.J., not participating.


author: John I. Purtle, Justice.

text:
    RICELAND FOODS, INC. and LIBERTY MUTUAL INSURANCE CO. v. SECOND INJURY FUND
    86-50
    715 S.W.2d 432
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986

      Friday, Eldredge & Clark, by: Barry E. Coplin, for appellant.

      Thomas J. O’Herrt, Second Injury Fund, for appellee.
   John I. Purtle, Justice.

We granted petitions for review of the decisions of the Court of Appeals in this case and the case of McCarver v. Second Injury Fund, 289 Ark. 509, 715 S.W.2d 429 (1986), to consider Workers’ Compensation Commission decisions relating to the Second Injury Fund. The cases involve employees who received first and second injuries while employed by the same employer. The first injury in each case resulted in permanent partial disability. The nature, extent and duration of the injuries in the two cases are different; therefore, only the injuries of the employee in this case will be discussed in this opinion.

The Court of Appeals reversed the Commission’s decision that the Second Injury Fund was liable for compensation due an employee in cases where a second injury rendered an employee permanently and totally disabled. The Commission held that the relationship of the first disability or injury and the employment was not an element to be considered. The Court of Appeals reversed and held that if the first injury arose out of and in the course of the same employment, then the Second Injury Fund was not responsible for payment of benefits above and beyond those mandated by the second injury alone. We affirm the decision of the Court of Appeals.

The employee, Harry Brown, was able-bodied when he commenced work for the petitioner-employer in 1946. Sometime in 1955, he was exposed to noxious gases which exposure, among other things, resulted in toxic hepatitis. The inhalation of the noxious gases gave rise to a compensable injury. The employee was last paid disability compensation in 1958; however, the employer’s insurance carrier, Liberty Mutual, continued to pay medical benefits for several years. Twenty-five years after inhaling the toxic gas, the employee received a second injury while still in the employ of Riceland Foods. His second compensable injury was an injury to his left ankle which resulted in a 15% permanent partial disability to the left leg. This injury when combined with the first injury rendered the employee totally and permanently disabled.

Before the second injury occurred the petitioner-carrier had destroyed the file relating to the first injury. The “A-11 Form” (the final report filed with the Workers’ Compensation Commission) for the first injury reveals that the employee was paid 15 weeks temporary total disability. Throughout the record it is evident that the employee never really recovered from the toxic gas exposure although he continued his employment with the same employer for more than 25 years. At the time of the second injury in 1981 the employee had to use a cane in order to walk. He also had developed congestive heart failure.

Brown and his wife both testified that he never fully recovered from the toxic gas injuries. He stated that after his first injury his doctors had not wanted him to return to work. Eventually he obtained permission to return to work, performing only limited duties. Doctor John Wilson treated the employee for his second injury. In obtaining the patient’s health history, the doctor was told that the employee had heart, liver and lung disease as a result of the poisoning. The doctor’s report in part stated: “However, due to his general physical condition, from what I’m told, he is unable to return to gainful employment because of the poisoning that occurred in the past.” There is no dispute over the fact that the employee was considerably disabled prior to his second injury. The factual dispute arises over the employer-carrier contention that the disability existing prior to the second injury was a result of heart disease and other ailments not connected to the first injury.

In an opinion filed on August 3, 1984, the Administrative Law Judge made findings of fact and conclusions of law which were later adopted by the full Commission. The findings of fact included the following statement:

[I]t is apparent from both the lay testimony and the medical evidence that claimant was substantially disabled or impaired as a result of a previous injury, as well as the deterioration of his general physical condition.

The law pertaining to second or successive injuries is codified as Ark. Stat. Ann. § 81-1313(f)(1) (Repl. 1976) and reads as follows:

If an employee receives a permanent injury after having previously sustained another permanent injury in the employ of the same employer, for which he is receiving compensation, compensation for the subsequent injury shall be paid for the healing period and permanent disability by extending the period and not by increasing the weekly amount. When the previous and subsequent injuries received result in permanent total disability, compensation shall be payable for permanent total disability as provided in Section 10(a) [§ 81-1310] of this Act.

Section 4 of Act 290 of 1981 dealt with the Second Injury Fund and has been compiled as Ark. Stat. Ann. § 81-1313 (i) (Supp. 1985) which in part states:

The Second Injury Fund established herein is a special fund designed to insure that an employer employing a handicapped worker will not, in the event such worker suffers an injury on the job, be held liable for a greater disability or impairment than actually occurred while the worker was in his employment. The employee is to be fully protected in that the Second Injury Fund pays the worker the difference between the employer’s liability and the balance of his disability or impairment which results from all disabilities or impairments combined. . . .
If the previous disability or impairment or disabilities or impairments whether from compensable injury or otherwise, and the last injury together result in permanent total disability, the employer at the time of the last injury shall be liable only for the actual anatomical impairment resulting from the last injury considered alone and of itself. . . . [Emphasis added.]

The Second Injury Fund (respondent) argues that Ark. Stat. Ann. § 81-1313(f) (1) still controls even though Act 290 of 1981 when read alone might support the opposite view. The petitioners, on the other hand, argue that Act 290 clearly requires the Second Injury Fund to pay for benefits beyond those which are solely attributable to the second injury. Given the state of the law in its present form it is understandable that reasonable minds might reach different conclusions. Either statute standing alone would not be difficult to understand; however, we must examine them together and give meaning to both if possible. Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984). When construing a statute we must compare it with other statutes on the same general subject matter and if possible reconcile them. Sargent v. Cole, 269 Ark. 121, 598 S.W.2d 749 (1980). All acts passed upon the same subject matter should be construed together and made to stand if capable of being reconciled. Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982).

The first sentence of Ark. Stat. Ann. § 81-1313(i) states that an employer shall not “be held liable for a greater disability or impairment than actually occurred while the worker was in his employment.” There is no dispute over the fact that the employee was employed by petitioner at the time of both the first and second injuries. The first injury was obviously a serious one and left the employee with an undetermined anatomical impairment and loss of earning capacity. We agree with the decision of the Court of Appeals that the employee is permanently and totally disabled and that both injuries actually occurred while the worker was in petitioner’s employment. Therefore the petitioners are responsible for all the compensation and benefits due the claimant.

When read together these two statutes can be reconciled. Act 290 did not specifically repeal Ark. Stat. Ann. § 81-1313(f)(1). Repeals by implication are not favored in the law, and such repeals will not be allowed unless the implication is clear and irresistible. Davis v. Cox, 268 Ark. 78, 593 S.W.2d 180 (1980); Rightsell v. Carpenter, 188 Ark. 21, 64 S.W.2d 101 (1933). Prior to 1979 employers were obligated to pay benefits for prior existing disabilities if an injury covered by the Workers’ Compensation Act together with the prior disability resulted in permanent total disability. The opinion and dissent in the Court of Appeals very adequately point out the advantages and disadvantages of different interpretations of the present state of the law. See Second Injury Fund v. McCarver, 17 Ark. App. 101, 704 S.W.2d 639 (1986); and Second Injury Fund v. Riceland Foods, 17 Ark. App. 104, 704 S.W.2d 635 (1986).

If successive injuries in the same employment cause total and permanent disability the employer or his insurance carrier is responsible to the employee for all benefits. If the previous disability or impairment did not arise out of the employment by the same employer, the Second Injury Fund must pay the benefits. We agree with the result reached by the Court of Appeals.

Affirmed.

Hickman and Newbern, JJ., dissent.


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

text:
    Thomas Edwin RUSSELL v. STATE of Arkansas
    CR 86-19
    712 S.W.2d 916
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986

      Darrell E. Baker, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: William F. Knight, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

At trial, the appellant was convicted of two counts of rape and two counts of sexual abuse in the first degree. The victim was a nine year old girl. The single point of appeal concerns a question asked of the State’s first witness, Dr. Donna Van Kirk, a licensed psychologist. The Deputy Prosecuting Attorney first asked Dr. Van Kirk if in her opinion the victim had been sexually abused. The appellant objected, and the trial court correctly ruled that the witness could not give her opinion about whether sexual abuse had, in fact, occurred. Shortly afterward, the following took place:

[MR. ZISER, DEPUTY PROSECUTING ATTORNEY]:
Q. You have told us already that you took a history from Jennifer?
A. Yes.
Q. I assume that Jennifer told you some things about what may have happened to her?
A. Yes.
Q. And based on what she told you and based on your expertise in this area, is it consistent, is what she told you consistent with a child who has been abused?
A. Yes.
MR. BAKER: [DEFENSE ATTORNEY]:
Objection, Your Honor.
THE COURT:
Overrule the objection and permit it.

The appellant argues that the trial court erred in allowing the witness to answer whether the child’s statements were consistent with sexual abuse because the subject matter was not beyond the common knowledge of the jury. The argument is meritorious.

The general test for admissibility of expert testimony is whether the testimony will aid the trier of fact in understanding the evidence or in determining a fact issue. Unif. R. Evid. 702; B&J Byers Trucking, Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). An important consideration in determining whether the testimony will aid the trier of fact is whether the situation is beyond the trier of fact’s ability to understand and draw its own conclusions. B&J Byers Trucking, Inc. v. Robinson, supra. Here, lay jurors were fully competent to determine whether the history given by the victim was consistent with sexual abuse.

Accordingly, we conclude the trial court erred in admitting the testimony. The issue then becomes whether the error was prejudicial. The State’s case against the appellant was so strong, and the error so inconsequential, that we find no prejudice.

The overwhelming evidence came primarily from the victim and a pediatrician. The victim’s testimony was explicit, graphic, and unequivocal. Examples of her testimony are:

[BY MR. ZISER, DEPUTY PROSECUTING ATTORNEY]:
Q. Okay. And then what did he do?
A. Then he took his penis and he rubbed it up and down in my vagina, and he said — I jumped a little bit, and he said, “Don’t jump or I’ll stick it all the way in.”
Q. Did he stick his penis part of the way in?
A. Yes. The head.
Q. Did he stick it all the way in or just part way?
A. Part of it.
Q. Okay. What did he do?
A. Well, he had — he told me to take my pants off, and he took his off, and he had this lotion that he rubbed on his penis and my vagina. He told me to lay down on the bed. And he — he was — well, his knees were around me. He was kneeling on the bed and rocking back and forth with his penis run into my vagina.
Q. Did his penis go actually part of the way inside you?
A. Yes.
Q. Just partially in?
A. Yes.
Q. After he stuck his penis part of the way inside of you, did you see anything else happen?
A. Well, the next thing that happened, he told me — well, we got up and he told me that he was going to lay down, and he told me that I had to do the same thing that he did, just opposite, and I had to rock back and forth.
Q. Okay. And what happened after that?
A. Then he stood up and he told me to sit on the bed, and he told me to suck his penis.
Q. Did you, in fact, do that?
A. Yes.
Q. Can you describe his penis when you put it in your mouth?
A. (There is a long pause.) It was — it was sort of hanging. It wasn’t real straight, but it was sort of hanging down a little bit.

The pediatrician testified that at the time of her examination the victim had a stretched labia minora with healed lacerations. The healing of the lacerations indicated the tearing occurred at the time the victim said it did, and the tearing was consistent with partial penetration.

While the psychologist should not have been allowed to testify that the history given by the victim was consistent with sexual abuse, in truth, the testimony merely provided the jurors with a hint of the testimony which they would receive from the victim. The error was harmless and did not affect the judgment.

Affirmed.

Holt, C.J., not participating.

Hickman and Hays, JJ., concur.

Purtle and Newbern, JJ., dissent.

Steele Hays, Justice,

concurring. I concur in the result, but not in the view that the opinion given by Dr. Van Kirk was inadmissible. The appellant denied the acts altogether and claimed the accusations were inspired by the victim’s mother in revenge for having been “jilted.”

Thus, the basic fact issue was sharply controverted, and U.R.E. 702 recognizes determining a fact issue as one basis for the use of expert testimony. Whether Dr. Van Kirk’s testimony cast a relevant light on that issue, and whether its probative value outweighed any prejudice was, I believe, a matter for the trial court’s “broad discretion.” Ray v. Fletcher, 244 Ark. 74, 423 S.W.2d 865 (1968); Ark-La Gas Co. v. Maxey, 245 Ark. 15, 430 S.W.2d 566 (1968); Caldwell v. State, 267 Ark. 1053, 594 S.W.2d 24 (C.A. 1980).

John I. Purtle, Justice,

dissenting. I agree with the majority that it was error to allow witness Van Kirk to testify as set out in the first page of the opinion. However, I disagree with their conclusion that it was harmless error. The testimony was presented at the start of the state’s case. Although such testimony may have been proper in the appropriate circumstances it was obviously prejudicial as presented in the case before us. At the time the witness testified, the 9 year old victim had not yet taken the stand nor had any of the “overwhelming evidence” relied upon by the majority been presented.

It is extremely difficult to state in exact or express terms the meaning of “prejudicial error.” I have found no case which specifically defines “prejudicial error.” Black’s Law Dictionary, Fourth Edition, defines the term as: “Error substantially affecting appellant’s legal rights and obligations.”

Neither the majority nor the dissenters can determine the effect this testimony had on the jury. This victim had been the prosecuting witness in a previous sexual abuse case against another defendant. The evidence thus becomes less convincing with respect to this defendant. With which incident was the victim’s testimony consistent? It may be sound judicial economy to refuse to reverse this case but judicial economy should not be accomplished at the expense of the criminal justice system and more particularly at the expense of individual rights.

This witness testified to the same effect in Hall v. State, 15 Ark. App. 309, 692 S.W.2d 769 (1985). In Hall the Court of Appeals stated:

It is our conclusion from the record in the case before us that the evidence of the expert, Dr. Van Kirk, tended to focus the attention of the jury upon whether the evidence against the defendant matched the evidence in the usual case involving sexual abuse of a young child. . . . Other details could be recited but it is enough to say that we feel this type evidence was not of proper benefit to the jury in this case and that, as in Bledsoe, it was not introduced to rebut a misconception about the presumed behavior of a rape victim but to prove, as in Saldana, that the circumstances and details in this case match the circumstances and details usually found in child abuse cases. Of course, some of the expert’s testimony in this case could be of benefit to the jury. Her testimony regarding the vocabulary that young children have to express their experience in sexual abuse cases is legitimate and beneficial evidence for the jury. But, overall, we find much of the expert’s testimony distractive and prejudicial. . . .
Because of the admission of the evidence discussed above, over objections to testimonial generalities concerning the “dynamics” of child abuse, the conviction in this case must be reversed and the matter remanded for a new trial.

The testimony of Dr. Van Kirk was not relevant at this point of the trial. It may have never been relevant. Perhaps the victim would not have testified exactly as she did, or maybe not at all, if this witness had not paved the way and set the pattern of thinking for the jury. Certainly the “dynamics” of “child abuse syndrome” is of great assistance to society in general and people involved in matters relating to sexual abuse of children. It may have been proper later in the present trial but as in Hall I find it was prejudicial in this case. The “overwhelming evidence” referred to in the majority opinion is only the testimony of the victim. While her testimony alone might have been sufficient to sustain the conviction, in my opinion it does not, merely by virtue of its detailed nature, in the circumstances of this case, become so overwhelming as to overcome the error I regard as prejudicial.

I would reverse and remand for a new trial.

Newbern, J., joins in this dissent.


author: Steele Hays, Justice.

text:
    EAST TEXAS MOTOR FREIGHT LINES, INC. v. Ellen FREEMAN, Denise CLARK, Ted Clifton TULLOS, Sr., Individually and For the Use and Benefit of Ted Clifton TULLOS, Jr., A Minor, and Clifford GILLESPIE
    85-240
    713 S.W.2d 456
    Supreme Court of Arkansas
    Opinion delivered July 21, 1986
    [Rehearing denied September 15, 1986.]

      Wright, Lindsey & Jennings, for appellant.

      Hale, Fogleman & Rogers, for appellees Ellen Freeman, Denise Clark, and Ted Clifton Tullos, Sr., Individually and for the use and benefit of Ted Clifton Tullos, Jr., a minor.

      Moore, Moore, Hart & Barton, for appellee Clifford Gillespie.

       Purtle, J., would grant.

   Steele Hays, Justice.

At about 6 o’clock on the evening of June 15, 1981 eleven vehicles collided in dense smoke along a stretch of Interstate Highway 55 in Crittenden County, Arkansas. Earlier that day farm workers of Clifford Gillespie set fire to a wheat field being prepared for soybean planting. The wheat field was to the east of the highway and the smoke carried to the west, primarily affecting north bound traffic.

Appellee Ellen Freeman was driving her car in a north bound lane with her daughter, Denise Clark, and her grandson Cliff Tullos, Jr., who are also appellees, riding as passengers. When Mrs. Freeman encountered the smoke she reduced her speed and as vision became increasingly difficult she saw one vehicle in the left lane and a tractor trailer of Abbott Laboratories, driven by Donald Sosnowski, partially blocking the right lane. She came to a stop and moments later an East Texas Motor Freight tractor trailer struck her vehicle and the Abbott vehicle simultaneously. Its driver, Noble McCreary, died in the collision.

This litigation in Crittenden County began when Abbott filed an action against East Texas Motor Freight, Ellen Freeman, Clifford Gillespie and others. Denise Clark and Ted Tullos intervened seeking damages for their injuries and Mrs. Freeman claimed damages for property loss and personal injuries against Gillespie and East Texas Motor Freight. There were cross claims for contribution.

Subsequently the wife and children of Noble McCreary filed a wrongful death action in federal court against Clifford Gillespie. Ellen Freeman, ETMF and others were joined as third party defendants in that litigation for purposes of contribution. In the course of those proceedings the district judge entered an order that all parties would be deemed to have sought contribution from all other parties and all such claims would be treated as disputed. Mrs. Freeman tried unsuccessfully to consolidate her claims in state court with the proceedings in federal court.

The federal case was tried in September of 1983 and resulted in verdicts in favor of McCreary’s heirs and other claimants against Gillespie. The jury found that Gillespie was entirely at fault and that McCreary, Freeman and Sosnowski were not at fault.

Based on those findings ETMF moved for summary judgment in the state proceedings on grounds of res judicata and alternatively that Freeman, Clark and Tullos were collaterally estopped from relitigating the issues in state court. Summary judgment was denied and the case was tried, resulting in verdicts against ETMF for Mrs. Freeman of $41,849 for Ms. Clark of $27,086 and for Ted Tullos of $325. Gillespie was exonerated. A remittitur of $12,000 was ordered by the trial court as to the verdict on behalf of Mrs. Freeman.

ETMF has appealed. Appellees are Freeman, Clark, Tullos and Gillespie. Our jurisdiction attaches because the case involves the law of torts. Rule 29(l)(o).

ETMF challenges the trial court’s rulings on the issues of res judicata and collateral estoppel, the admissibility of the testimony of a state trooper, the propriety of several jury instructions, in limiting the cross-examination of Ellen Freeman, and in allowing prejudgment interest on the property damage award.

Res Judicata and Collateral Estoppel

The similarity between the doctrines of res judicata and collateral estoppel has been the cause of some confusion, but the two are distinct. Res judicata or claim preclusion bars the relitigation of issues which were actually litigated or which could have been litigated in an earlier suit. Allan v. McCurry, 449 U.S. 90 (1980). Whereas, collateral estoppel requires four elements before a determination is conclusive in a subsequent proceeding: 1) the issue sought to be precluded must be the same as that involved in the prior litigation; 2) that issue must have been actually litigated; 3) it must have been determined by a valid and final judgment; and 4) the determination must have been essential to the judgment. Newbern, Arkansas Civil Practice and Procedure (The Harrison Company, 1985) § 26-12, p. 262. Smith v. Roane, 284 Ark. 568, 683 S.W.2d 935 (1985); Lovell v. Mixon, 719 F.2d 1373 (8th Cir. 1983).

Here, Denise Clark and Ted Tullos were not parties to the federal case, and Mrs. Freeman was joined only for purposes of contribution. Mrs. Freeman was not obligated to counterclaim against ETMF in the federal action because of her pending state claim. See F.R.C.P. 13(a). Moreover, the attempt to consolidate her claims pending in state court with the federal action was rejected by the federal judge. Hence, the issues involving the liability of ETMF for the injuries and property claims of the appellees, Freeman, Clark and Tullos, had not been litigated prior to the trial in Crittenden County.

In several cases we have applied the doctrine of collateral estoppel to attempts to relitigate issues of negligence where the liability was derivative. In Barnett v. Isabell, 282 Ark. 88, 666 S.W.2d 393 (1984), the Barnett family, after successfully suing the employer of Robert Isabell, sued Isabell for injuries arising out of the same occurrence. We affirmed the trial court’s granting of summary judgment because the liability was entirely derivative and the issues had been decided. The rationale for the doctrines is the policy of the law to end litigation “by preventing a party who had had one fair trial of a question of fact from again drawing it into controversy . . .” See also Davis, Admn. v. Perryman, 225 Ark. 963, 286 S.W.2d 844 (1956) and Ted Saum & Co. v. Swaffor, 237 Ark. 971, 377 S.W.2d 606 (1964).

But we have never extended the concept of collateral estoppel to the point that claimants who have had no trial at all, nor any opportunity to present their claims, are precluded by the outcome of litigation to which they were not privy. We believe justice preserves to everyone the right to his “day in court.”

Testimony of Trooper Whitley

ETMF insists the trial court should have granted its motion for a mistrial when the trial court permitted State Trooper Terrie Whitley, to testify about “extra” skid marks which could be seen in photographs of the accident scene but which she had not observed during her investigation, nor noted on her accident report. On her accident report she indicated the ETMF vehicle had twenty-four feet of skid marks. ETMF contends the effect of the trial court’s ruling qualified Trooper Whitley to testify on accident reconstruction which she was not competent to do.

We have been unable to find anything in the officer’s testimony which is particularly damaging to ETMF. The length of the “extra” skid marks is never stated and so far as we can determine, the testimony may have been inconsequential. The only conceivable conclusion which might arise from extra skid marks would relate to the speed and the officer made it perfectly plain that she was not able to determine the speed of any of the vehicles and made no attempt to do so. The officer’s testimony involved essentially what she could see in several photographs. All parties were permitted to question her on these details and the trial court offered to caution the jury to make its own interpretation of the photographs. The offer was refused. In short, we find nothing in Officer Whitley’s testimony that meets the requirement of substantial prejudice under Rule 103 of the Uniform Rules of Evidence.

Future Pain and Suffering

ETMF urges the jury should not have been instructed to consider future pain and suffering, mental anguish or the permanency of injuries in assessing damages. We concede the proof is marginal but on balance we cannot say it was so deficient as to fail to produce a submissible issue for the jury. No hard and fast rule exists by which to test the permanency of injuries and to a degree each case must be examined on its own.

ETMF cites St. Louis Iron Mountain & Southern Ry. Co. v. Bird, 106 Ark. 177, 153 S.W. 104 (1913) and other cases holding that a jury may not consider any claims for permanent injuries unless they are proved to a reasonable certainty, supported by affirmative proof of permanency. Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W.2d 869 (1968).

Ms. Clark testified that she sustained a head injury and suffered nausea, vomiting and severe and continuing headaches up to the time of trial, a period of approximately three and a half years. Viewing that testimony in a light most favorable to the appellees a jury could conclude that consequences of injuries which continue over three and a half years will occur in the future. Bailey and Davis v. Bradford, 244 Ark. 8, 423 S.W.2d 565 (1968). Moreover, lay testimony without expert corroboration is sufficient. Id.

Mrs. Freeman’s injuries are more emotional than physical. She sustained a blow to the forehead, a cut on her back and a contusion on her leg the size of a fist. Ms. Clark testified that since the accident her mother avoids driving or permitting her grandchildren to go with her when she is driving, that she makes excuses to keep from driving and becomes a “total wreck” a couple of days before a trip; that she “goes all to pieces just from driving” home from Ms. Clark’s house and is paranoid about 18-wheelers behind her.

While we have held that future pain and permanency must be established with reasonable certainty and not left to the jury’s speculation and conjecture, Handy Dan Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 541 (1985), we have also said the jury may consider the nature, extent and persistency of the injuries and may rely on lay testimony. Id. Between the two extremes of objective injuries on the one hand and subjective complaints on the other, lies a grey area “in which the issue of permanency becomes a matter of judgment.” Belford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526 (1968). All in all we are satisfied there was enough evidence of permanency to submit the issue to the jury.

AMI 901(b) — Danger Ahead

The trial court instructed the jury in accordance with AMI 901(b):

When the driver sees danger ahead, then he is required to use ordinary care to have his vehicle under control as to be able to check its speed or stop it, if necessary, to avoid damage to himself or others.

And the trial court gave AMI 614:

A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation.

ETMF submits AMI 901(b) should not be given when a driver is confronted without warning to an emergency situation. Home Insurance Co. v. Harwell, 267 Ark. 884, 568 S.W.2d 17 (1978). We believe both instructions were appropriate to the proof.

It is evident the drivers could see smoke crossing the highway from some distance away. That circumstance was enough to alert approaching motorists of a potential danger and to justify the jury being told the requirements of the law in response to those conditions. Appellants argue that Noble Mc-Creary had no reason to expect the smoke to be so thick he could not see. But that was for the jury to determine, as we know of no rule that permits a motorist, on seeing smoke ahead, to assume it will be so lacking in density that vision will not be impaired.

The emergency instruction was appropriate to the conditions which were shown to have existed when the smoke screen was actually entered and blockage of the highway encountered. The trial court was right to give both instructions.

AMI 902 — Superior Right of the Forward Vehicle

ETMF objects to the giving of AMI 902:

When two vehicles are traveling in the same direction, the vehicle in front has the superior right to the use of the highway for the purpose of stopping to avoid vehicles ahead, and the driver behind must use ordinary care to operate his vehicle in recognition of this superior right. This does not relieve the driver of the forward vehicle of the duty to use ordinary care and to obey the rules of the road.

It contends this instruction applies only to vehicles that are traveling, and here the forward vehicle was stopped. Appellees point out that the instruction obviously contemplates the situation presented by this case, as it mentions the right of the forward driver to stop, to avoid vehicles ahead, which is exactly what Mrs. Freeman did. We agree.

Obviously this instruction is not intended to apply in every situation where one vehicle strikes another from behind. For example, in Harlan v. Curbo, 250 Ark. 610, 446 S.W.2d 459 (1971), it was held inapplicable where one vehicle struck another just as the forward vehicle had pulled out of a driveway. And in Saliba v. Allison, 192 Ark. 1021, 96 S.W.2d 934 (1936) where a truck, after turning across the highway, continued onward or stopped partially on the highway. We said:

The only error in this contention is that Saliba had ended his forward trip on highway No 61, had stopped on the roadside, then had turned sharply to his left and had driven upon the highway. No kind of watchfulness could have anticipated this action.

But the instruction has a wider application than when two vehicles are moving in tandem along the highway. In Cohen v. Ramey, 201 Ark. 713, 147 S.W.2d 338 (1941) the forward car slowed down and signaled a left turn. While signalling the driver moved slightly to the right to permit cars behind her to pass, continued signalling and was struck as she turned onto an adjoining road. The trial court gave an earlier version of 902 and we alfirmed:

The short or temporary stop that Flora Ramey made to allow two cars close to her to pass did not in any sense amount to a parking or stopping on the roadside. It was a momentary or temporary stopping and a thing she had to do before she could continue the turn to the east side of the road she was making . . . The momentary stopping of her car did not relieve appellant who was travelling behind her of taking notice of the movement of her car or of the signals being given by her.

While there is no testimony as to the distance between the Freeman car and the ETMF truck prior to the impact, it is clear the two vehicles were traveling north in close proximity, as the truck struck the car momentarily after the car stopped to avoid other vehicles. That is a sufficient basis for the instruction. Smith v. Alexander, 245 Ark. 567, 433 S.W.2d 157 (1968).

Limitation on Cross-Examination

ETMF contends it should have been permitted to question Mrs. Freeman about l.oss of time on the job due to her injuries. On direct examination she said she missed a month of work. On cross-examination she was asked:

Q: I believe you testified you missed three or four weeks of work?
A: A month.
Q: A month’s work. But you didn’t lose any wages—

Counsel for the appellee objected and after an unreported discussion the court sustained the objection and instructed counsel to rephrase his question. The matter of wages was not pursued.

ETMF argues it should have been permitted to show Mrs. Freeman lost no wages as a result of her injuries. We disagree. Assuming the issue was whether or not she was paid during the time she was off, the collateral source rule applies. Amos, Administrator v. Stroud and Salmon, 252 Ark. 1100, 482 S.W.2d 592 (1972). Whether she received the money from her employer or from an insurance policy, she, rather than the alleged tortfeasor, is entitled to the benefit of the collateral source, even though in one sense a double recovery occurs. Vermillion v. Peterson, 215 Ark. 37, 630 S.W.2d 30 (1982). The law rationalizes that the claimant should benefit from the collateral source recovery rather than the tortfeasor, since the claimant has usually paid an insurance premium or lost sick leave, whereas to the tortfeasor it would be a total windfall.

Prejudgment Interest

Over East Texas Motor Freight’s objection, the trial court awarded prejudgment interest of six percent from June 25,1981 until March 15, 1985 on $6,681.26, the sum of Mrs. Freeman’s property damage claim. Because the verdict did not distinguish between property damage and personal injuries, ETMF argues that prejudgment interest is not recoverable. Lovell v. Marianna Federal Savings & Loan, 267 Ark. 164, 589 S.W.2d 597 (1979). It contends that without a special verdict covering property damage it is impossible to determine whether the jury intended to award any property damage.

Mrs. Freeman’s response is that an exhibit itemizing her property loss was introduced without objection and the amounts of her property claims were never questioned by ETMF. Even so, we are unwilling to establish a precedent for allowing prejudgment interest where only a general verdict is returned which includes an award for personal injuries. If a plaintiff intends to claim prejudgment interest, we think he must request a specific verdict on property damage.

The judgment is modified to eliminate prejudgment interest and with that modification is

Affirmed.

Holt, C.J., not participating.