text:
    JULIAN MARTIN, INC. et al v. INDIANA REFRIGERATION LINES, INC. et al
    77-239
    560 S.W. 2d 228
    Opinion delivered January 23, 1978
    (Division II)

      H. David Blair, of Murphy, Blair, Post & Stroud, for appellants.

      Wright, Lindsey & Jennings; and Rose, Mash, Williamson, Carroll, Clay & Giroir, by: Phillip Carroll, for appellees.
   John A. Fogleman, Justice.

The Workmen’s Compensation Commission awarded compensation to appellee Robert Lee Underwood on account of injuries suffered by him while driving a truck near Ft. Smith, Arkansas. The truck was owned by appellee White County Ready Mix, who leased it to appellant Julian Martin, Inc., who in turn leased it to appellee Indiana Refrigeration Lines, Inc., for a specific trip. Underwood was on this trip when he suffered a compensable injury. The only contention by appellant, on appeal, is that Indiana Refrigeration Lines was the employer of Underwood at the time and that appellant was not. We hold th^t the question was one of fact and that there was substantial evidence to support the commission’s findings.

It was stipulated that, at the time of Underwood’s injury, the truck was being operated pursuant to a trip lease to Indiana Refrigeration Lines, Inc. and under authority granted to that company by the Interstate Commerce Commission. Appellant’s argument is two-fold. It contends that Indiana Refrigeration Lines was the employer because (1) it controlled the activities of Underwood under ICC regulations and. (2) it collected and remitted to its insurance carrier premiums for workmen’s compensation insurance coverage on appellant on this particular trip and should be estopped from denying coverage. We do not consider either factor to control the status of Underwood as an employee of appellant as a matter of law, although there might be substantial evidentiary support for such a holding. But we are not concerned with the question whether there is support for a conclusion different from that reached by the commission. Reynolds Mining Co. v. Raper, 245 Ark. 749, 434 S.W. 2d 304; Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S.W. 2d 487. Our only concern is whether a fair-minded person could reach the conclusion the commission did reach upon the evidence submitted. If so, the evidence is substantial. Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W. 2d 689; Plastics Research & Development Co. v. Goodpaster, 251 Ark. 1029, 476 S.W. 2d 242; Herman Wilson Lumber Co. v. Hughes, supra.

Underwood was hired by Dan King, the sole proprietor of White County Ready Mix and the truck Underwood was driving. It was known to Underwood that the truck was leased to Julian Martin, Inc., because a sign painted on the door on each side of the truck so indicated. Underwood was told that he would receive his pay from Bob Killian, the “first driver” of the truck, who was paid by King on a percentage basis. The last pay received by Underwood was by check of White County Ready Mix. Killian did not accompany Underwood on the trip during which the injury occurred, and this was Underwood’s first trip alone.

The drivers were expected to call appellant daily, so appellant would be advised as to what was going on. They customarily reported their location and how things were going. Whenever Killian and Underwood reached any destination, Killian would call appellant in Batesville for dispatch to another place to pick up cargo. Killian called appellant about destinations daily.

On the particular occasion in question, Underwood left Batesville with a load of chickens to be taken to Sioux City, Iowa, and was told by appellant to then go back to Glenwood, Iowa, to pick up a load of pork to be transported to Memphis. After unloading the chickens, Underwood went to Indiana Refrigeration Company in Sioux City, filled out a sublease or trip lease of the truck by appellant to Indiana Refrigeration Lines, and was furnished that company’s signs which he put on the sides of the truck, covering appellant’s signs. He then went to Glenwood and picked up the load destined for Memphis. As usual, expense money for the truck was furnished by King and Underwood paid his personal expenses.

Underwood had previously taken his instructions from Killian. He had received his directions relating to the trip during which he was injured from Killian. After Underwood picked up the load at Glenwood, he was free to choose the best route to Memphis and to stop wherever and whenever he chose along the way. He was restricted as to the time he could drive during any 24-hour period and was required to keep a log of the trip by ICC regulations.

Underwood knew that the trip lease had been used on two occasions when the truck was not hauling commodities which were exempt from ICC regulation but, when hauling exempt commodities, the operation was always conducted under the lease to appellant. Killian was paid 30% of the compensation White County Ready Mix received in either instance, and presumably the same amount was paid to Underwood in either situation. Killian always paid the second driver, such as Underwood, from the percentage he was paid.

Under the trip lease arrangement between appellant and Indiana Refrigeration Lines, appellant was compensated by the load. Appellant received a settlement sheet from Indiana Refrigeration Lines showing a deduction for a workmen’s compensation insurance premium from the compensation that would have otherwise been paid appellant. Such a deduction had been made on settlement sheets sent appellant by Indiana Refrigeration Lines over a period of six years. Appellant’s settlement sheet with White County Ready Mix, which included the trip on which Underwood was injured and three other such trips, showed that $27.09 was deducted for workmen’s compensation insurance premium from the amount remitted to White County Ready Mix, and it is admitted that appellant charged the owner of this truck for workmen’s compensátion insurance on some trips where appellant had subleased the owner’s truck on a trip lease.

Appellant provides workmen’s compensation coverage for drivers on some trip leases and on others, including those to Indiana Refrigeration Lines, premiums are deducted from the payment to appellant. In figuring the premium paid to its insurance carrier on its payroll, appellant does not include the payroll of drivers of trucks owned by or leased to it when deductions have been made for workmen’s compensation insurance premiums by a sublessee such as Indiana Refrigeration Lines. The matter had been handled the same way on every such transaction, of which there were more than 75.

Dan King had never been told that a workmen’s compensation premium would not be charged to him by appellant when one of his trucks was subleased to a third party by appellant. It was his understanding that appellant arranged for workmen’s compensation coverage and billed him for it, and this was the way the matter had been handled as long as he leased trucks to appellant. King understood that when his truck was running for Indiana Refrigeration Lines, the premium was deducted by that concern and passed down to him. He did not understand that there would be two premiums or two deductions. King turned over tickets for gasoline purchased by his drivers to appellant and each ticket showed the name of the lessee and the amount of gasoline purchased.

The administrative law judge and the full commission found that appellant exercised a greater degree of control over Underwood than did Indiana Refrigeration Lines. This finding was based on the fact that the drivers called in to the appellant routinely for instructions as to where to pick up and deliver loads, the route to be taken and matters of that sort and that appellant retained the right to terminate the employment.

Appellant relies upon ICC regulations requiring that, in the leasing of equipment with drivers, the lease shall provide for the exclusive possession, control and use of the equipment and for the complete assumption of responsibility in respect thereto by the lessee, for the duration of the lease. Appellant is quite correct in its position that the right of control, and not its exercise, is a factor in determining whether the employer-employee relationship exists. The lease required the lessor to provide the necessary personnel to operate the leased equipment, to pay the driver’s salary, compensation coverage and all taxes based on payroll and to indemnify the lessee against any loss resulting from the injury or death of the driver. It provided for surrender of full control, possession and management of the leased equipment to the lessee during the term of the leases and required the lessor to operate the equipment as directed by lessee. It also provided that the lessor should generally determine the details and means of performing the services required by the lease, so long as they were in conformance with various regulatory requirements, the operating procedure and policy of the lessee and the specifications and requirements of the shipper.

Appellant’s right of control over Underwood is demonstrated in the evidence. When Underwood first went to work, he filled out an application for employment on a form which was given him by Killian, and which he understood came from appellant’s office. The president and major shareholder of appellant testified that he had the right to discharge Underwood if Underwood were to commit an infraction of appellant’s policies. We should also point out that when Underwood was en route from Glenwood to Memphis, he encountered mechanical difficulties, which he reported to King. King directed him to' call appellant, who probably would know where needed repairs could be made in Kansas City, from whence Underwood called. When Underwood was unable to overcome the difficulties through procedures suggested by appellant, King instructed him to come through Little Rock where repairs would be made. He did take this route and his compensable injury was suffered while en route to Little Rock. Indiana Refrigeration Lines, Inc. was not consulted about this selection of route and took no part in the decision made.

We cannot agree that the ICC regulations made the driver of the truck the employee of the sublessee, Indiana Refrigeration Lines, as a matter of law. It cannot be said that by the terms of the lease, complete control of the driver was surrendered by appellant. Cases cited by appellant relating to vicarious liability of the lessee under a trip lease for negligence of the driver have little, if any, bearing on the question of the status of the driver as an employee of the lessor in that lease. The word “employee” for workmen’s compensation purposes is defined by statute to mean any person in the service of an employer under any contract of hire or apprenticeship. Ark. Stat. Ann. § 81-1302 (Repl. 1976). Control of the leased equipment does not operate as such complete control of the driver, as to make the driver the employee of the lessee as a matter of law, as appellant contends. Turner v. Shumacher, 230 Minn. 172, 41 N.W. 2d 182 (1950); Hamilton v. M & M Leasing Co., 283 App. Div. 904, 130 NYS 2d 1 (1954).

There is no specific precedent in this state governing this particular relationship and there seems to be a split of authority among other states. We have a decided preference for those authorities holding that the question, when there is a lease of fully operated equipment for the transportation of cargo on the public highways, is one of fact. See Coleman v. Ringle Truck Lines, 249 Iowa 1133, 91 N.W. 2d 566 (1958); Rantis v. Michicago Motor Express, 333 Mich. 73, 52 N.W. 2d 602 (1952); Turner v. Schumacher Motor Express, supra; Williams v. Solomon, 13 A.D. 2d 159, 214 NYS 2d 928 (1961).

We do not agree that the doctrine of estoppel requires a different conclusion. If asserted by the claimant, the doctrine might well apply. But in this case, it seems that appellant would also be estopped on the theory it espouses, because it appears to us that appellant withheld workmen’s compensation insurance premiums in its settlement with White County Ready Mix on this very trip, whether deliberately or through error. Be that as it may, the contract between appellant and Indiana Refrigeration Lines expressly required that appellant pay the driver’s salary and compensation coverage and that appellant indemnify it against any and all claims of whatever kind or nature that might arise under the agreement. Dan King testified that it was his understanding with appellant that appellant would provide workmen’s compensation coverage for the drivers of trucks he leased to appellant, and bill him for it and that this practice had been followed so long as he had been entering into truck lease agreements with appellants. The agent of Indiana Refrigeration Lines who arranged the trip lease testified that he withheld for compensation coverage in order to make sure that it was paid by the lessor. A lessee of motor trucks may properly insure against the risk that drivers furnished by the lessor may be held to be its employees, and its doing so would not constitute a conclusive admission, as between the lessee and the lessor, that the driver was the lessee’s employee or necessarily outweigh other evidence on the subject. Williams v. Solomon, supra.

The party asserting estoppel must prove it strictly, there must be certainty to every intent, the facts constituting it must not be taken by argument or inference, and nothing can be supplied by intendment. Ford Motor Credit Co. v. The Exchange Bank & Trust Co., 251 Ark. 881, 476 S.W. 2d 208; Arkansas National Bank v. Boles, 97 Ark. 43, 133 S.W. 195. We do not find a basis for estoppel in favor of appellant.

Appellant relies upon Phoenix of Hartford v. Coney, 249 Ark. 447, 459 S.W. 2d 558, which was an action under Ark. Stat. Ann. § 81-1306 (Repl. 1960), by the insurance carrier of a prime contractor against a subcontractor, to recover the amount paid by the carrier on the claim of an employee of the subcontractor. The subcontractor defended on the basis of estoppel. We pointed out that where the insured employer’s liability is based upon estoppel, or other equitable consideration, the estoppel would not automatically apply to an insurance carrier whose liability is to be determined under the workmen’s compensation law. We do not consider Coney as controlling and do feel that, under the workmen’s compensation laws, there was substantial evidence that appellant was liable for Underwood’s claim as his employer.

We do not understand that appellant seeks any relief against White County Ready Mix, and we find no basis for such relief.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Charles Parker HARRIS v. STATE of Arkansas
    CR 77-195
    561 S.W. 2d 69
    Opinion delivered January 23, 1978
    (Division II)
    [Rehearing denied February 27, 1978.]

      Gene Worsham, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of murder in the second degree and his punishment assessed at ten years’ imprisonment and a fine of $5,000. Appellant first contends that the trial court erred in submitting the case to the jury on a higher form of homicide than manslaughter or negligent homicide and in not directing a verdict in his favor on the higher form of homicide because there was no substantial evidence to support the jury’s verdict. Appellant argues that to constitute murder in the second degree, as defined by Ark. Stat. Ann. § 41-1503 (1) (b) (Repl. 1977), there must be proof of an intent to kill, which appellant asserts the state failed to prove. § 41-1503 (1) (b) reads that a person commits murder in the second degree if “he knowingly causes the death of another person under circumstances manifesting extreme indifference to the value of human life.” The culpable mental state required for second degree murder, as defined by § 41-1503 (1) (b), is not an intent to kill, but rather is to “knowingly” cause such result. Ark. Stat. Ann. § 41-203 (2) defines “knowingly:”

A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

Therefore, here the state, in order to prove appellant committed second degree murder under § 41-1503 (1) (b), had to prove that appellant acted with an awareness of his conduct, the relevant attendant circumstances, and that his conduct was practically certain to cause the death of his wife.

A directed verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to appellee and affirm if there is any substantial evidence to support the verdict. Balentine v. State, 259 Ark. 590, 535 S.W. 2d 221 (1976). Here there was testimony that appellant entered a bar with his wife and sat down in a booth, his wife sitting right next to him. Appellant was seen holding a gun pointed at his wife’s throat. She reached for his hand and laid hers upon his at which time the gun fired killing her. Immediately before the shot was fired, appellant was heard to say to her, “Well, I’ll fix you.” However, appellant adduced evidence from those present that there was no argument and he was engaged in “horseplay.” His version was that the incident was accidental. It was for the jury to resolve the conflicting versions. The evidence is amply substantial to support the jury’s verdict that appellant “knowingly” caused his wife’s death under circumstances manifesting extreme indifference to the value of human life. Accordingly, there was no error in the court’s failure to direct a verdict in appellant’s favor.

Appellant finally contends that the court erred in accepting the jury’s verdict because it was ambiguous and denied him his right to the alternative fine provision contained in the written verdict form. The verdict form, in accordance with the court’s instruction, reads:

We, the Jury, find the defendant, Charles Parker Harris, guilty of Murder, Second Degree, as charged in the Information, and fix his punishment at a sentence of _ imprisonment in the State Penitentiary, and/or a fine of_Dollars.

The jury inserted “10 YRS” and “$5,000” as punishment. The court clerk inadvertently read if by omitting “or.” A judgment was accordingly rendered. Suffice it to say that the verdict form did not sufficiently explain the options the jury had and consequently we cannot say that the jury acted according to law. Shelton v. State, 261 Ark. 816, 552 S.W. 2d 216 (1977); and Brown v. State, 261 Ark. 683, 550 S.W. 2d 776 (1977).

It becomes unnecessary to discuss appellant’s other contention that newly discovered evidence warrants a reversal.

Reversed and remanded.

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


author: George Howard, Jr., Justice.

text:
    Joseph Earl HOLMES v. STATE of Arkansas
    CR 77-191
    561 S.W. 2d 56
    Opinion delivered January 23, 1978
    (Division I)
    [Rehearing denied February 27, 1978.]

      Blevins & Pierce, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Justice.

This appeal presents two questions for this Court’s consideration and determination, namely, (1) Whether heroin seized from the person of appellant at the time of his arrest was properly admitted into evidence? and (2) Whether appellant’s request for mistrial should have been granted on the grounds that the State committed prejudicial error by posing alleged improper questions to appellant regarding his previous convictions?

THE FACTS

On December 9, 1976, at approximately 9:20 p.m., the Little Rock Police Department was requested by a security guard at the old Baptist Hospital to render assistance in the apprehension of a prowler around the dormitory on the campus grounds of the hospital. Approximately three officers were dispatched immediately to the area.

The security guard gave the officers a description of the suspect and indicated the direction that the suspect had fled. The officers commenced a general search of the area.

However, one of the officers, Arzell Phillips, proceeded west bound for approximately twelve blocks from the hospital when he observed appellant running on the sidewalk. Appellant fitted the description that had been supplied by the security guard. Upon approaching appellant, Officer Phillips asked appellant for identification, but appellant was unable to produce any identification; appellant was rather vague and hesitant about giving his name; he appeared to be intoxicated, had a sleepy appearance and possessed a strong odor of alcohol on his person. Appellant was placed under arrest for intoxication and was casually searched for weapons. Appellant was placed in the officer’s vehicle and transported to 13th & Markham Streets where Officer Phillips met the other two officers where a more thorough search of appellant’s person was conducted for weapons, when the police discovered aluminum foil containing heroin in appellant’s pocket. Appellant was subsequently charged by information with unlawfully possessing a controlled substance in violation of Act 590 of 1971, as amended.

Appellant filed a timely motion to suppress the evidence alleging that the heroin was seized illegally and that such action on the part of the police officers contravened both the United States and Arkansas Constitutions. Appellant’s motion was denied and appellant was found guilty by a jury and was sentenced to a term of five years to the Arkansas Department of Correction.

Appellant challenges rather vigorously the validity of his arrest by asserting that the only reason he was stopped by the officer in the first place can be justified only under factor nine of Arkansas Statutes 43-435(b), pertaining to information received from third persons as a factor to be considered by an officer in regarding one as “a reasonable suspect. ” And when this is considered, argues appellant, in conjunction with the distance that appellant was first observed by the officer from the hospital, approximately twelve blocks, there was no justification for stopping the appellant since running on the sidewalk is not, per se, a suspicious activity or unlawful. Further, appellant argues that appellant was charged with public intoxication after he was stopped by the officer, but based upon the officer’s own testimony, appellant was not intoxicated within the meaning of the statutory definition of public intoxication as defined under Arkansas Statutes, Section 41-2913 since it was not shown that appellant was “likely to endanger himself or other persons or property or that he unreasonably annoys persons in his vicinity.”

THE DECISION

Appellant’s argument is not persuasive inasmuch as a casual review of Arkansas Statutes, Section 43-435 (a) (b) will readily illustrate that Officer Phillips was clearly justified in stopping and arresting the appellant. For example, Section 43-435(b) provides, among other things, that the following factors are also to be considered in determining if an officer has grounds to “reasonably suspect”:

1. The demeanor of the suspect; and,
2. The gait and manner of the suspect; and,
3. The time of day or night the suspect is observed; and,
4. The apparent effort of the suspect to avoid identification or confrontation with the police.

Relative to Arkansas Statutes, Section 41-2913 pertaining to public intoxication, it is provided, in relevant part, as follows:

“A person commits the offense of public intoxication if he appears in a public place manifestly under the influence of alcohol or a controlled substance to the degree and under circumstances such that he is likely to endanger himself or other persons or property, or that he unreasonably annoys persons in his vicinity.”

The evidence clearly shows that appellant fitted the description of the alleged prowler at the women’s dormitory of the Baptist Hospital as given by the security guard, and appellant was observed in the direction in which the alleged prowler had fled. Moreover, when Officer Phillips requested the appellant to produce identification documents, appellant was unable to do so, he was vague and hesitant in revealing his name, appellant had a strong odor of alcohol on his person and appeared sleepy. It must be remembered also that this scenario took place between 9:30 and 10:00 p.m. o’clock.

We held in Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969), as follows:

“Information coming to officers must rise above mere suspicion of criminal activity in order to constitute probable cause for an arrest, but it need not be tantamount to that degree of proof sufficient to sustain a conviction.”

See Also: Perez v. State, 260 Ark. 438, 541 S.W. 2d 915 (1976) where the Arkansas Supreme Court stated, that a person’s conduct while under observation of a police officer is a proper factor to be considered in evaluating probable cause. Smith v. State, 241 Ark. 958, 411 S.W. 2d 510 (1967); Reed v. United States, 401 F. 2d 756 (8th Cir., 1968). See also: Arkansas Rules of Criminal Procedure, Rules 3.1, 3.4 and 3.5.

It is well settled that a police officer making a lawful arrest is authorized, as an incident to the arrest, to search the person of the subject in order to confiscate weapons that may pose a danger or threat to the arresting officer’s safety and welfare. If contraband or evidence of another crime is disclosed during such search, it may be seized and used as evidence and its usefulness is not impeached under the purging influence of the Fourth Amendment to the United States Constitution. See: Chimel v. California, 395 U.S. 752 (1969). See also: Arkansas Rules of Criminal Procedure, Rule 12.1.

Appellant also contends that the trial court committed reversible error by denying appellant’s motion for mistrial. The record reflects that the State, through its Prosecuting Attorney, asked the appellant whether appellant was guilty in 1970 and 1971 of carrying a weapon in Houston, Texas. Counsel for appellant immediately objected to the question and moved for a mistrial which was denied by the trial court. However, the trial court immediately admonished the jury to disregard the question and answer. The record reflects, however, that appellant did not actually respond to the question complained of.

This Court has emphasized that the granting or denial of a motion for a mistrial is within the sound discretion of the trial court, and such discretion, when exercised, will not be disturbed on appeal unless it is shown to have been abused. Moreover, as we have also emphasized, declaring a mistrial is an extreme remedy which should be granted only where there has been an error so prejudicial that justice could not be served by a continuation of the trial. See: Gammel & Spann v. State, 259 Ark. 96, 531 S.W. 2d 474 (1976); Hill v. State, 255 Ark. 720, 502 S.W. 2d 649 (1973); Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876 (1968).

From this record, we can not find that there was an abuse of discretion on the part of the trial court or the alleged error was so prejudicial that justice could not be served by a continuation of the trial.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Hickman, JJ.


author: Kenneth R. Smith, Special Justice.

text:
    EQUILEASE CORPORATION v. UNITED STATES FIDELITY AND GUARANTY CO. et al
    77-100
    565 S.W. 2d 125
    Opinion delivered January 23, 1978
    and amended May 15, 1978
    (In Banc)
    [Rehearing denied May 15, 1978.]

      Wright, Lindsey & Jennings, for appellant.

      Friday, Eldredge & Clark, by: Overton S. Anderson, for appellee, United States Fidelity & Guaranty Co.

      Bill Clinton, Atty. Gen., by: Kirby Smith III, Asst. Atty. Gen., for appellees Auditor of State Jimmie (Red) Jones et al.

      Charles A. Brown, for Amicus Curiae, John F. Wells and Independent Voters of Arkansas, Inc.
   Kenneth R. Smith, Special Justice.

August 2, 1973, the purchasing department of the State of Arkansas issued a request for bids for supplying mobile training units with related services to the Graphic Arts Training Program of the Department of Correction. Educational Programs and Equipment Corporation (EPEC) was the low bidder and was awarded the contract. On August 27, 1973, EPEC, as principal, and United States Fidelity and Guaranty Company (USF&G) as surety, executed in favor of the State of Arkansas a $50,000.00 statutory performance and payment bond under the terms of which the surety agreed that in case of default of the principal, the surety would, to the extent of the bond, make good any such default.

On September 4, 1973, EPEC and the State of Arkansas entered into a lease purchase agreement. Under this agreement EPEC was to reimburse the State for the first year’s salaries of the personnel running the program. On September 14, 1973, EPEC assigned all the proceeds due it under the lease purchase agreement, to the Appellant, Equilease Corporation, but retained all the obligations and duties. EPEC then defaulted on reimbursing the State of Arkansas for a portion of the first year’s salaries of the personnel running the program which amount was determined to be $32,500.00. Under the original lease between EPEC and the State of Arkansas, the State of Arkansas agreed that it would not withhold or divert from an assignee of said lease any payments due thereunder or set up any defenses against such assignee but would retain all its defenses against the original lessor, EPEC.

The State of Arkansas made demand upon USF&G as surety for the performance of its principal, EPEC, for its default under said lease purchase agreement. USF&G then brought suit against the State of Arkansas and Equilease Corporation, asking that the State of Arkansas be enjoined from making further payments under the lease purchase agreement to Appellant, Equilease, until USF&G’s obligations under the bond and its rights of subrogation to the undisbursed lease payments had been determined.

A temporary injunction was entered enjoining the State of Arkansas from making further payments to Appellant until this issue had been settled which injunction was lifted after Appellant filed a bond guaranteeing payment to USF&G up to the amount of $50,000.00, in the event it was finally adjudged that USF&G had the right to be reimbursed from the lease payments for any loss it sustained under said suretyship agreement.

The trial court granted judgment to the State of Arkansas against USF&G in the sum of $32,500.00, and held that upon USF&G’s payment of said amount to the State of Arkansas it would be entitled to recover the entire amount from lease payments made to Appellant since Appellant had received these payments from the State under bond during the pendency of this action.

Since USF&G did not appeal from the judgment against it the only question properly before this Court is whether USF&G is entitled to recover its loss upon its suretyship agreement from the balance of the lease payments owed by the State of Arkansas.

Appellant contends that it may not and further contends that this would be a diversion by the State in violation of the original lease.

Under the doctrine of equitable subrogation a surety taking over and completing the contract of the defaulting contractor is subrogated to the rights of the contractor with respect to funds due the contractor. See Vol. 16 Couch on Insurance (2d Ed.) § 61-396; Also 17 Am. Jur. 2d, Contractor’s Bonds, § 107. Such rights are superior to those of a mere assignee of the money. 83 Corpus Juris Secundum Subrogation § 59. These rights become vested at the time the surety provides full satisfaction for default and relate back to the time the bond or contract of suretyship was entered into. Vol. 11, Appleman, Insurance Law and Practice, § 6630. Therefore, USF&G’s rights to the undisbursed lease payments would relate back to a time prior to Appellant’s assignment and to Appellant’s rights thereunder.

The terms of the original lease under which the State of Arkansas agreed that it would not withhold or divert any lease payments from or assert any defenses against an assignee do not preclude the State from its rights under the Statutory performance bond issued by USF&G. Neither do they preclude USF&G from asserting its rights to the balance of the lease payments. There was a clear duty and obligation upon USF&G to remedy the default of its principal and upon doing so the doctrine of Equitable Subrogation clearly applies.

Appellant also argues that the state agreed to indemnify and hold it harmless from all losses and claims, regardless of how they arose, by the following clause in the contract:

Lessee agrees to indemnify, save and hold Lessor harmless from all losses, damages, claims, penalties and expenses, including attorney’s fees, howsoever arising or incurred because of or incident to any item ....

Appellant asserted this right in a cross-complaint against State Auditor Jimmy “Red” Jones, State Treasurer Nancy Hall, Commissioner of the Department of Correction Hutto, Industry Administrator Dermitt of the Department of Correction and Fiscal Administrator Thomas of the Department of Correction. It asked judgment over against these defendants for indemnity. These defendants asserted that this counterclaim against them was, in essence, a suit against the state prohibited by Art. 5 § 20 of the Constitution of Arkansas. It is clear that this cross-complaint might have appropriately been considered as asserting a setoff against any recovery by the state. Arkansas Department of Correction v. Doyle, 254 Ark. 102, 491 S.W. 2d 602. Here the state sought no recovery from appellant and none was allowed. Consequently, the claim for indemnity, although asserted against state officials, was in reality a claim for a money judgment against the state. As such, it constituted a suit against the state which was barred by Art. 5 § 20 of the state constitution. State v. Lovett-Carnahan Co., 179 Ark. 43, 14 S.W. 2d 233; McCain v. Crossed Lumber Co., 206 Ark. 51, 174 S.W. 2d 114; Wilson v. Pinkert, 210 Ark. 1093, 198 S.W. 2d 723; Ross v. Rich, 210 Ark. 74, 194 S.W. 2d 297; Page v. McKinley, 196 Ark. 331, 118 S.W. 2d 235; Watson v. Dodge, 187 Ark. 1055, 63 S.W. 2d 993.

The Amicus Curiae in its brief brings forth many new issues, all of which perhaps could have been properly made the basis of a taxpayers intervention at the trial court level; none of which are properly before this Court. The Amicus Curiae must take the case as he finds it and cannot introduce new issues at the Appellate level. Giles v. State, 261 Ark. 413, 549 S.W. 2d 479.

Affirmed.

Byrd and Hickman, JJ., disqualified.

Special Justice Charles Ledbetter joins in the opinion.


author: George Rose Smith, Justice.

text:
    SOUTHLAND MOBILE HOME CORPORATION v. Ricky WINDERS and wife
    77-161
    561 S.W. 2d 281
    Opinion delivered January 30, 1978
    (Division I)

      Laser, Sharp, Haley, Young & Boswell, for appellant.

      James C. McCaa, III, of Hightower & McCaa, for appellees.
   George Rose Smith, Justice.

In this appeal from the trial court’s refusal to set aside a default judgment against the appellant, the only question is whether a timely answer filed by its codefendant inured to its benefit, so that the default judgment was incorrectly entered.

The appellees brought suit to recover the value of a mobile home that had been destroyed by fire. The defendants were the manufacturer of the mobile home and its seller, the appellant. The complaint alleged that the defendants were jointly and severally liable to the plaintiffs, because (a) the mobile home, when supplied, was in a dangerously defective condition, (b) the defendants were negligent in inspecting the mobile home, (c) there was a breach of express and implied warranties of merchantability, and (d) the defendants were liable for the consequential destruction of personal property (not described).

The manufacturer filed an answer denying “each and every material allegation contained in the complaint.” The appellant failed to file an answer, resulting in the entry of the default judgment. The appellant’s motion to set aside the judgment, on the ground that its codefendant’s answer inured to its benefit, was denied.

The motion should have been granted. The appellees are mistaken in arguing, on the basis of the result reached in Rogers v. Watkins, 258 Ark. 394, 525 S.W. 2d 665 (1975), that there must be a derivative liability in order for the answer of one defendant to inure to the benefit of another. That was the situation in Rogers, but the rule is not confined to that state of facts. The true test is whether the answer of the non-defaulting defendant states a defense that is common to both defendants, because then “a successful plea . . . operates as a discharge to all the defendants but it is otherwise where the plea goes to the personal discharge of the party interposing it.” Coddington v. Brown, 123 Ark. 486, 185 S.W. 809 (1916). Accord: Burt v. Henderson, 152 Ark. 547, 238 S.W. 626 (1922); Simpson & Webb Furn. Co. v. Moore, 94 Ark. 347, 126 S.W. 1074 (1910); Fletcher v. Bank of Lonoke, 71 Ark. 1, 69 S.W. 580 (1902). Here the effect of the manufacturer’s answer was to deny the plaintiffs’ allegations of negligence and breach of warranty. That denial went to the existence of the plaintiffs’ cause of action, asserted a defense common to both defendants, and therefore inured to the benefit of the appellant.

Reversed.

We agree. Harris, C.J., and Hickman and Howard, JJ.


author: John A. Fogleman, Justice.

text:
    Frank J. ROONEY and TRAVELERS INSURANCE COMPANY v. Rubie CHARLES
    77-300
    560 S.W. 2d 797
    Opinion delivered January 30, 1978
    (Division II)

      Southern, Stewart, Gunter, Matthews & Alexander, by: Byron S. Southern, for appellants.

      Brockman, Brockman & Gunti, by: David K. Gunti, for appellee.
   John A. Fogleman, Justice.

Rubie Charles suffered a compensable injury while employed by appellant Frank J. Rooney as a construction laborer. His temporary total disability ended January 14, 1975. He was thereafter awarded compensation for permanent and total disability by an administrative law judge on July 23, 1976, after a hearing on February 13, 1976, and by the Arkansas Workmen’s Compensation Commission on October 18, 1976. Medical evidence showed a maximum 20% disability to the body as a whole, but the commission found Charles was permanently and totally disabled because his injury was sufficiently disabling to make his functional disability total. The award was affirmed by the circuit court on August 1, 1977. Appellants argue that there is no substantial evidence to support the award and that the commission erred in finding the claimant permanently and totally disabled on the basis of a noncompensable preexisting condition. We find no reversible error and affirm.

As in all cases on appellate review of a worker’s compensation award, we view the evidence, about which there is little dispute, in the light most favorable to the commission’s findings. It showed that:

Charles was 61 years of age at the time of his injury; he had worked only as a manual laborer; his formal education ended after he completed the third grade in school; he had a grade equivalency of first grade reading, being unable to recognize all letters or any words, of third grade in spelling, of beginning second grade in arithmetic; his visual acuity was poor; he was illiterate and possessed of insufficient reading or writing skills for utilization in a job requiring ability to make change or count; he had an intelligence quotient of 50, which was indicative of severe mental deficiency and a mental age of three years, ten months; his mental retardation was on two levels — one organic and the other psychosocial; he had no specific job skills which were transferable to another job; both his age and his intelligence rendered him non-feasible for rehabiliation; Charles was even unable to do chores around the house and he had to lie down a lot; in the opinion of a clinical psychologist, with experience as a rehabilitation counselor, even a minimally disabling injury to Charles’ body as a whole results in a total functional disability, because he was precluded from heavy manual labor and his intellectual disabilities were such that he could not be placed in employment in light and sedentary areas.

Charles’ treating physician had hoped to be able to return Charles to work, but was unable to say that he was ever able to do more than light work, or any stooping or lifting of objects weighing more than 15 or 20 pounds. This physician was advised by Rooney’s insurance carrier that there was no light work available for Charles.

Appellants rely to a great extent upon our decision in Ray v. Shelnutt Nursing Home, 246 Ark. 575, 439 S.W. 2d 41. They overlook the fact that in that case the claimant offered no testimony about her attempts to work or her ability or inability to work after her compensable injury and no testimony of a substantial nature, pertaining to her ability to earn in the same or other employment the wages she was receiving at the time of the injury. Significantly, however, we pointed out that the Workmen’s Compensation Commission is in a better position to evaluate a claimant’s ability to earn in the same or other employment the same wages he received at the time of a compensable injury. Furthermore, we said that, although the commission’s knowledge and experience is not evidence, once it has before it firm medical evidence of physical impairment and functional limitations, it has the advantage of its own superior knowledge of industrial demands, limitations and requirements and can apply its knowledge and experience in weighing the medical evidence of functional limitations together with other evidence of the manner in which the functional disability will affect the ability of an injured employee to obtain or hold a job and thereby arrive at a reasonably accurate conclusion as to the extent of permanent partial disability as related to the body as a whole.

The commission here did exactly what we said in Ray that it could do in evaluating the physical impairment of Charles, the functional limitations shown by medical evidence and other evidence of the manner in which his functional disability affected Charles’ ability to obtain and hold a job.

We have long recognized that the wage-loss factor, i.e., the extent “to which a compensable injury has affected a claimant’s ability to earn a livelihood,” rather than the functional or anatomical loss, is generally controlling in disability determinations, which are to be made by the Workmen’s Compensation Commission on the basis of medical evidence, age, education, experience and other matters reasonably expected to affect the claimant’s earning power. See Arkansas Best Freight System v. Brooks, 244 Ark. 191, 424 S.W. 2d 377; Glass v. Edens, 233 Ark. 786, 346 S.W. 2d 685. A finding that Charles’ age, education, permanent physical impairment, coupled with his total lack of adaptability to rehabilitation rendered him permanently and totally disabled had substantial evidentiary support. We pointed out in Brooks that one factor which may be considered by the commission was whether the injured claimant can be trained to perform other work. The fact that mental retardation limits the field for which a worker can be trained does not make a claimant any less entitled to have his own wage-loss factor, and not that of some more intelligent person, govern the determination of his disability. It is highly probable that Charles was never employed or employable except in heavy manual labor. It is clear from the medical testimony that Charles would likely have been able to continue in the same or similar employment doing heavy manual labor, had it not been for the injury he suffered. This case bears a much greater similarity to Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W. 2d 184, where we affirmed a finding of permanent and total disability than it does to Ray. In Corbitt, mental retardation was one element considered as having a bearing on the disability determination.

Appellants also argue that the major portion of the claimant’s disability is attributable to a preexisting condition, i.e., mental retardation, which is not compensable and, therefore, evidence on the question of retardation should not have been considered in arriving at the amount of benefits due the claimant. Although we did consider this fact in Corbitt, it is not clear that this particular issue was before us. We cannot agree with appellants that the quotation from 2 Larson, The Law of Workmen’s Compensation 54, 58, § 59, in McDaniel v. Hilyard Building Co., 233 Ark. 142, 343 S.W. 2d 416, supports their position. That quotation has to do with the precipitation of disability from a latent prior condition, such as heart disease, cancer, back weakness and the like, and states that apportionment is not applicable in such cases, or in any case in which the prior condition was not a disability in the compensation sense. The author continued by saying:

To be apportionable then, an impairment must have been independently producing some degree of disability before the accident, and must be continuing to operate as a source of disability after the accident.

Charles’ mental retardation had not independently produced any degree of disability before the accident. There is no evidence that it would have prevented him from pursuing his employment as a manual laborer after the date of the injury. Under these circumstances, we have rejected an argument somewhat similar to that of appellants’ where the contention was made that the major part of the claimant’s disability was attributable to his age. M. D. Thompson & Son Co. v. McCuan, 255 Ark. 762, 502 S.W. 2d 93. We have sustained a finding of partial disability where consideration was given to age, limited education and lack of training as factors. Johnson County v. Timmons, 249 Ark. 1106, 463 S.W. 2d 365. It seems reasonable that age and mentality should be considered in the same light in evaluating the question of disability. Disability in workmen’s compensation cases is the “incapacity because of injury to earn in the same or any other employment, the wages which the employee was receiving at the time of the injury.” Ark. Stat. Ann. § 81-1302 (e) (Repl. 1976).

Congenital mental deficiency does not affect a worker’s entitlement to compensation, because compensation is based on previous earnings and earning capacity and is measured by loss of capacity due to the accident and not on mental condition, except in regard to earnings and earning capacity. Belleville Brick & Tile Co. v. Industrial Commission, 305 Ill. 577, 137 N.E. 401 (1922). But in determining the degree of disability as defined in our statute, the mentality of the claimant is material to the wage-loss factor because it is pertinent to the question of his ability to obtain work that he is capable of performing. Eastern S.S. Lines, Inc. v. Monahan, 110 F. 2d 840 (1 Cir., 1940).

The question of total disability turns upon a determination whether a workman, by reason of the disability resulting from his compensable injury, cannot perform work of the general character he was performing when injured, or any other work which one of his capabilities might be able to learn to do. Morrison-Knudson Construction Co. v. Industrial Commission, 18 Utah 2d 390, 424 P. 2d 138 (1967). See also, Wright, Compensation for Loss of Earning Capacity, 18 Ark. L. Rev. 269, 280. As pointed out in Morrison-Knudson, one with a low intelligence quotient cannot be expected to learn a new trade or calling and thereafter sell his services in the open labor market as readily as a more gifted person might do; therefore, the mental capacity of the claimant is pertinent to the issue of total disability. Prof. Larson points out that a considerable number of the cases involving the oddlot doctrine (that total disability may be found in the case of workers who, while not altogether incapacitated for work, are so handicapped that they will not be employed regularly in any well-known branch of the labor market) are those of claimants whose adaptability to the new situation created by their physical injury was constricted by lack of mental capacity or education. 2 Larson, The Law of Workmen’s Compensation, 10-122, § 57.51.

Under our definition of disability for workmen’s compensation purposes, the determination of incapacity turns upon the wages the employee was receiving at the time of the injury. Unquestionably, Charles’ wages at the time of injury were limited because of his mental retardation. If he was deprived by injury of his previous capacity to earn the same wages in the same or any other employment, he was disabled. If he was unable to earn any wages in any employment he was totally disabled for workmen’s compensation purposes. There was substantial evidence to support the finding that Charles was totally and permanently disabled by his compensable injury.

The judgment is affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.


text:
    MOON REALTY COMPANY, INC. v. ARKANSAS REAL ESTATE COMPANY, INC. et al
    77-198
    560 S.W. 2d 800
    Opinion delivered January 30, 1978
    (Division II)

      House, Holmes & Jewell, by: Paul ,/V. Stanfield and Charles R. Nestrud, for appellant.

      Pearce, Robinson & McCord, by: H. Clay Robinson, for appellees.
   Frank Holt, Justice.

At a foreclosure sale appellant purchased certain real property belonging to two of the appellees, Arkansas Warehouse Corporation and Rose Courts. The foreclosure sale resulted from these two appellees’ default on a $70,000 note. At the time of the judicial sale, the total indebtedness of these appellees, including interest and costs, was approximately $113,000. Appellant paid $5,000 in excess of this amount at the foreclosure. The court’s order of foreclosure provided appellant with notice that the sale was subject to the United States’ right under 28 USCA § 2410 (c) (1965) to redeem the property. The United States was made a defendant in the foreclosure proceeding inasmuch as the government admittedly had valid tax liens against these two appellees.

After the sale and within the statutory time limit, appellant was informed by the United States that unless it paid the undisputed outstanding tax liabilities of these two appellees, who had owned the property, together with the tax liabilities of three other appellees, Arkansas Real Estate Corporation, Robert M. Traylor and May Traylor, the government would exercise its right to redeem the property. However, if the government exercised its right of redemption, the appellant would be made whole by reimbursing appellant for its purchase price, attorneys’ fees, costs, and value of any improvements, plus 6% per annum. In order to preserve its interest in the recently purchased property or maintain ownership, appellant paid the Internal Revenue Service the total amount ($83,372.48) of the tax liabilities owed by all five appellees. Appellant then sought subrogation to the rights of the United States and a judgment against all five of the appellees for the amount of the tax liability discharged by its payment, which relief was denied for want of equity. Appellant asserts that the court erred in holding it was not entitled to be subrogated. Appellant contends that all elements or conditions required for the application of the subrogation doctrine were met by it.

Certain elements or conditions must be present for this equitable remedy to be properly applicable. Generally there must be a debt or obligation for which parties other than the subrogee are primarily liable and which the subrogee discharges for the protection of his own rights or interests (see Whitley v. Irwin, 250 Ark. 543, 465 S.W. 2d 906 [1971]); the obligation must be paid off in full (Jones v. Harris, 90 Ark. 51, 117 S.W. 1077 [1909]); and the one seeking subrogation must be something more than a mere volunteer or intermeddler (Gosnell v. Garner, 198 Ark. 989, 132 S.W. 2d 187 [1939]). Further the doctrine of “subrogation is administered not as a legal right, but the principle is applied to subserve the ends of justice, and to do equity in the particular case before the court.” Fed. Land Bank of St. Louis v. Richland Farming Co., 180 Ark. 442, 21 S.W. 2d 954 (1929).

Here at the time of the judicial sale, two of the appellees, Rose Courts and Arkansas Warehouse Corporation, the defaulting owners of the property, had outstanding and valid tax obligations to the U.S. Government. The government was made a defendant in the foreclosure proceeding by virtue of having tax liens against these appellees. The foreclosure sale extinguished the tax liens as to these two appellees on the property foreclosed. However, the foreclosure did not extinguish their debt to the government and these appellees were still directly liable to the government for their outstanding tax liabilities.

The United States had the right to redeem the property foreclosed and informed appellant that it intended to do so unless it paid these two appellees’ outstanding tax liabilities plus the tax liabilities of the other three appellees, who, it appears, were not a party to the foreclosure proceeding. Appellant elected to pay in full the tax obligations of all five appellees in order to preserve its interest in the recently purchased property because it was valuable to appellant for assemblage with other adjoining land owned by it.

We hold that the appellant is entitled to subrogation as to the two appellees, Rose Courts and Arkansas Warehouse Corporation, the defaulting owners of the property, against each of which the government had a valid tax lien. Clearly, the elements of subrogation exist as to them because each owed a debt or obligation to the government which had filed a tax lien on their property. It was paid in full by appellant in order to preserve its rights and interest in the foreclosed property. Therefore, the appellant cannot be said to be a mere volunteer or intermeddler as to the extent or payment of their taxes. We have held that where someone who has an interest in property pays the taxes due thereon from another, he is subrogated to the lien taxing authority. Holloway v. Bank of Atkins, 205 Ark. 598, 169 S.W. 2d 868 (1943).

As to the other three appellees, Arkansas Real Estate Corporation, Robert M. Traylor and May Traylor, we are of the view that the appellant was a volunteer whenever it decided to pay their taxes. It is true that the United States made demand upon appellant for it to pay the taxes owed by these three appellees even though they were not a party to the foreclosure proceeding or apparently had no interest in it. We stated in Gosnell v. Garner, supra:

We can see no application here for the doctrine of subrogation. What appellees did was as a volunteer and a stranger, and ‘a stranger and volunteer as these terms are used with reference to the subject of subrogation, is one who, in no event resulting from the existing state of affairs, can become liable for the debt, and whose property is not charged with the payment thereof and cannot be sold therefor. . . . Anyone being under no legal obligation or liability to pay the debt is a stranger, and if he pays the debt, a mere volunteer.’

Here, admittedly, the government would have made appellant whole by the repayment of its purchase price and other expenditures, plus 6% interest, had appellant not elected to pay the tax liabilities of these three strangers to the foreclosure proceedings. As indicated, we are of the view that appellant is not subrogated to the rights of the United States to enforce the tax liabilities of these three appellees.

Affirmed in part and reversed in part.

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

Byrd, J., dissents as to the reversal.


author: Darrell Hickman, Justice.

text:
    Lee McCRAW v. STATE of Arkansas
    CR 77-192
    561 S.W. 2d 71
    Opinion delivered January 30, 1978
    (Division I)

      Harold L. Hall, Public Defender, by: John W. Achor, Chief Dep. Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Lee McCraw was found guilty of kidnapping and rape and sentenced to prison by the Pulaski County Circuit Court. He appeals his conviction alleging two errors: an identification of McCraw by the victim from the photographs of four individuals was unnecessarily suggestive that McCraw was the assailant and, therefore, the victim’s in-court identification of McCraw should have been suppressed; also, McCraw argues that the evidence was insufficient to support the verdict.

We find no error in the record and affirm the judgment.

The victim testified that about 5:30 P.M. on November 12, 1976, her vehicle ran out of gas on a service road to an interstate highway in Pulaski County. She was waiting on a friend to pick her up when a big blue car drove up beside her. The driver, a black man, pointed a gun at her and ordered her into the vehicle. Fearing for her life she got in the car.

She said he ordered her to disrobe, get on the floorboard, and at gunpoint forced her to perform oral sex on him; she said he also fondled her. Apparently this occurred while the assailant drove around for the better part of an hour.

She described her assailant as a black man with some facial hair, wearing a floppy hat, dressed in a work uniform with dark blue pants and a light blue shirt.

She was able to see the name “Dude” in adhesive letters on the dashboard of the car. There were some letters above the word “Dude” but she could not make them out.

After being permitted to leave the vehicle she called her mother; the attack was promptly reported to the police. According to a police officer he was given a description of a black man that was five-seven or five-eight feet tall [about McCraw’s height], medium build, medium complexion, wearing a work-type uniform. The vehicle was described as a heavy-type vehicle similar to a Cadillac with a dark blue top and a light blue bottom. He was told that on the dashboard of the vehicle in adhesive letters was the word “Dude.”

The policeman made a search of the area and found a vehicle he thought met the description. It was a blue 1969 Oldsmobile with a vinyl top. The policeman shined his light on the dashboard and observed the words “Little Dude.” The word “Little” was on top, and the word “Dude” was beneath. He questioned McCraw, who admitted being the owner of the vehicle. McCraw stated that no one had borrowed his car that day. McCraw was taken to the police station and photographed with a hat on. The policeman then took McCraw’s photograph and three other photographs of young black men to the victim and she identified McCraw. There is no evidence that the police officer made any suggestions to the victim. Later she identified McCraw in open court.

It is not denied that the police officer placed a hat on McCraw and took a picture of him. McCraw’s photograph was the only one of a man wearing a hat. McCraw argues this was suggestive and that his identity was also suggested because one of the pictures shows an individual six feet four inches tall and another picture had a note on it “Sherwood Police, 1975.” The police officer should not have used four photographs with only the appellant wearing a hat. However, the question to us is, was the photograph line-up as presented to the victim unnecessarily suggestive to the point that the in-court identification should have been excluded.

The United States Supreme Court, in reviewing a case where just one photograph was used for an identification, discussed the factors to be considered when admitting identification evidence:

. . . reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stoval confrontations. The factors to be considered . . . include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. Manson v. Brathwaite, 97 S. Ct. 2243 (1977).

Applying this test to the photograph identification of McCraw, we find that the victim fairly accurately described McCraw’s physical appearance and his dress; she showed no reluctance in identifying McCraw as her assailant when shown the four photographs; and, she provided information that was extremely incriminating — the word “Dude” on the dashboard of McCraw’s vehicle. The incident, the report to the police, and the identification all occurred within a period of about three hours. The victim was in the presence of her assailant long enough to make observations about his appearance, dress, and his vehicle. Furthermore, she was obviously in a position for some period of time to observe her assailant’s features. Viewing the totality of the circumstances, we cannot say that the photograph line-up impermissibly suggested McCraw as the assailant.

The other argument of McCraw is that there was insufficient evidence to support the conviction. McCraw testified that he did not do it. He stated he got off work at about 5:30 p.m., went to McCain Mall, which was about two miles or so from the victim’s stalled car, picked up his wife from work and went home. His employer testified McCraw did not leave work on the day in question until 5:30 p.m. and consequently could not have been present to commit the crimes. A coworker’s testimony supported the employer’s testimony. McCraw’s wife corroborated McCraw’s testimony.

The alibi was a question of fact presented to the jury. We find substantial evidence to support the finding of the jury in this case.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Howard, JJ.


text:
    Betty H. GARRISON v. Nancy FUNDERBURK
    77-158
    561 S.W. 2d 73
    Opinion delivered January 30, 1978
    (Division I)

      Robert D. Stroud, of Murphy, Blair, Post & Stroud, for appellant.

      Highsmith, Tatum, Highsmith, Gregg & Hart, by: John C. Gregg, for appellee.
   George Howard, Jr., Justice.

We are to determine if the trial court committed reversible error in holding, as a matter of law, that the comparative negligence of a minor in possession of his mother’s automobile is not imputed under Ark. Stat. Ann. § 75-315 to his mother in her counterclaim for damages.

THE FACTS

It is admitted by the parties in this action that the facts are not in issue and that the only question presented for resolution arises out of the construction to be given Ark. Stat. Ann. § 75-315. However, the essential facts are that appellant, Betty H. Garrison, was involved in an automobile accident on June 17, 1976, with a vehicle owned by appellee, Nancy Funderburk, and driven by her minor son, Jeff Funderburk.

The case was tried to a jury. The jury found appellant 28% at fault and Jeff Funderburk 72% at fault.

It was stipulated between the parties that appellee’s damages to her vehicle amounted to SI,009.00. The trial court held that Ark. Stat. Ann. § 75-315 did not impute the comparative negligence of Jeff Funderburk to his mother and, accordingly, rendered judgment on appellee’s counterclaim against appellant in the sum of SI ,009.00.

CONTENTIONS OF THE PARTIES

1. Appellant stresses rather vigorously that Ark. Stat. Ann. § 75-315, in imputing negligence of a minor driver to a parent makes no distinction between comparative negligence and negligence per se for purposes of liability and, consequently, the trial court erred in holding otherwise.

2. The appellee argues persistently that Ark. Stat. Ann. § 75-315 imputes negligence and, therefore, a parent is jointly and severally liable for his minor child’s negligence. But, on the other hand, the statute does not ‘impute contributory negligence’ “so as to preclude a non-negligent party from recovering damages to their (sic) property from a party who was negligent.”

Appellee argues further that there is a distinction between imputed negligence and imputed “contributory negligence” in that the former is to broaden liability, while the latter is to narrow it. Consequently, argues appellee, the legislative policy to broaden liability for the protection of an injured plaintiff gives no sanction to the doctrine of imputed contributory negligence which narrows the liability of a negligent defendant to a plaintiff, who is innocent of actual negligence.

THE DECISION

Ark. Stat. Ann. § 75-315 provides in material part as follows:

“(a) The original application of any person under the age of eighteen (18) years for an instruction permit or operator’s license shall be signed and verified before a person authorized to administer oaths by both the father and the mother of applicant, if both are living and have custody of him, or in the event neither parent is living then by the person or guardian having such custody or by an employer of such minor, or in the event there is no guardian or employer then by other responsible person who is willing to assume the obligations imposed under this act . . .
“(b) Any negligence or wilful misconduct of a minor under the age of eighteen (18) years when driving a motor vehicle upon a highway shall be imputed to the person who has signed the application of such minor for a permit or license, which person shall be jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct.
“(c) If any person who is required or authorized by Subsection (a) of this Section to sign the application of a minor in the manner therein provided, shall cause or knowingly cause or permit his child or ward or employee under the age of eighteen (18) years to drive a motor vehicle upon any highway, then any negligence or wilful misconduct of said minor shall be imputed to such person or persons and such person or persons shall be jointly and severally liable with such minor for any damages caused by such negligence or wilful misconduct. The provisions of this Subsection shall apply regardless of the fact that a drivers license may or may not have been issued to said minor. For the purposes of this act, a minor is hereby defined to be any person who has not attained the age of eighteen (18) years.
“(d) The provisions of this Section shall apply in all civil actions, including but not limited to both actions on behalf of and actions against the person or persons required or authorized by Subsection (a) of this Section to sign the application in the manner therein provided.”

An adult’s liability for the damage caused by a minor’s negligence or wilful misconduct while driving a motor vehicle upon a highway was first dealt with by the Arkansas Legislature in 1937 when Act No. 280, Section 13 was enacted. This Act provided essentially that a parent or other person willing to assume liability, who signed the minor’s application for a driver’s license was jointly and severally responsible with such minor for any damages caused by such negligence or wilful misconduct. The weakness in this statute was demonstrated in Richardson v. Donaldson, 220 Ark. 173 (1952), when this Court refused to hold liable a parent who had failed to sign his daughter’s application for her driver’s license. We emphasized that the negligence of the daughter could not be imputed since the statute imputed negligence to the person who signed the application.

In 1955, the Arkansas General Assembly sought to remedy the problem as revealed by this Court in Richardson by enacting Act 278, Section 2. This Act provided that responsible adults were jointly and severally liable for the damages caused by the minor regardless of whether or not the application had been signed if the adult permitted the operation of the motor vehicle by the minor.

In 1961, the Arkansas Legislature enacted Act No. 495, which amended the Act of 1937 and deleted that part of Act 278 of 1955, which specified that the statute applied even if the application is unsigned by an adult and added that the statute applied regardless of whether a driver’s license was ever issued to the minor; that the responsible adult was liable jointly and severally, if he permitted the minor to drive, for damages due to any negligence or wilful misconduct on the part of the minor and that such negligence and wilful misconduct is imputed to the responsible adult. The statute also specified that the Act applied to all civil actions both on behalf of and against the responsible adult.

In 1969, the Arkansas General Assembly enacted Act No. 302, now Ark. Stat. § 75-315, retaining the provisions in Act 495 of 1961 and made a few minor changes not relevant to the issue in this case, i.e., deleting the requirement of verification of application for license or instruction permit.

In some jurisdictions, the contributory negligence of a minor while operating a motor vehicle is imputed to the person who signed the application of the minor for a driver’s license or authorized the use of the vehicle, in an action by such person against a third person under statutes similar to Ark. Stat. § 75-315. See: Milgate v. Wraith, 121 P. 2d 10; McCants, et al v. Chenault, 130 N.E. 2d 382. On the other hand, similar statutes have been interpreted as giving an injured person an additional source of recovery of damages realized, and do not impute, in an action against a third person, the contributory negligence of the minor. See: Christensen v. Hennepin Transp. Co. Inc., 215 Minn. 394, 10 N.W. 2d 406; Continental Auto Lease Corp. v. Campbell, et al, 227 N.E. 2d 28; Sizemore v. Bailey’s Adm’r, 293 S.W. 2d 165 (Ky. 1956).

We are persuaded, however, from a review of the Arkansas Legislature’s efforts to establish the liability of an adult for damage caused by a minor’s negligence or wilful misconduct while driving a motor vehicle upon a highway, that the legislative intent, as manifested in Ark. Stat. § 75-315, is to impute the negligence of a minor whether such negligence is characterized as negligence, contributory negligence or comparative negligence. This conclusion is inescapable from the plain meaning of the following provisions from Subsection (d) of Ark. Stat. § 75-315:

“(d) The provisions of this Section shall apply in all civil actions, including but not limited to both actions on behalf of and actions against the person or persons required or authorized by Subsection (a) of this Section to sign the application in the matter therein provided.” (Emphasis supplied)

Moreover, the conclusion that we reach is not only logical, but is an equitable approach to the problem that the Arkansas Legislature endeavored to deal and come to grips with. To hold otherwise would, in effect, sanction an adult’s action of placing a potentially dangerous instrumentality in the hands of a minor and permitting the adult to recover damages proximately caused by his own negligence while permitting the adult to escape the consequences of the negligence or wilful misconduct of the minor. Such a posture is incompatible with our concept of justice. Hence, we conclude the responsible adult stands in exactly the same posture as the minor and is clothed with the imputation of negligence for all purposes.

It may be interesting to note that the cases relied upon and cited by the appellee appear to be from states that adhere to the contributory negligence doctrine. Of course, Arkansas discarded the contributory negligence doctrine, which was a complete bar to any recovery, and adopted the comparative negligence provision in 1955. Moreover, the New York citation is not persuasive inasmuch as it appears that New York has held in some instances, that contributory negligence is imputed and in other instances it is not imputed.

In addition, a casual review of Kentucky’s statutory provision dealing with a minor’s negligence imputed to an adult will reveal that it is not identical to Ark. Stat. Ann. § 75-315. The Kentucky statute does not provide that the statutory provisions shall apply in “all civil actions” on behalf of and against the person required to sign the application for driver’s license, or who permits a minor to operate a motor vehicle upon a highway. See: Kentucky Revised Statutes, Section 186.590.

Reversed and dismissed.

We agree. Harris, C.J., and George Rose Smith and Hickman, JJ.

       Section 4 of Act 278, provides in part as follows:
      “It is hereby determined that the present laws pertaining to the responsibility of parents for minors under the age of 18 who drive automobiles is inadequately defined and would permit a parent who violates the law by failing to sign his child’s drivers license application to thus escape liability for such child’s acts while driving; and thus immediate passage of this Act is necessary to remedy such situation;.


text:
    Truman BOLDEN and Dozier BOLDEN v. STATE of Arkansas
    CR 77-89
    561 S.W. 2d 281
    Opinion delivered January 30, 1978
    (Division I)
    [Rehearing denied March 6, 1978.]

      E. Alvin Schay and Leon Marks, for appellants.

      Bill Clinton, Atty. Gen., by. Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Justice.

The issue to be resolved is whether the trial court committed prejudicial errors in the course of appellants’ trial, and if so, if these errors are of such magnitude as to vitiate appellants’ convictions and, accordingly, as asserted by appellants, reduced their trial to a mere formality.

THE FACTS

On May 14, 1976, appellant, Truman Bolden, was arrested after an alleged altercation with Officer Jimmy Carter of the Forrest City Police Department. Later that day, a warrant was issued for the arrest of appellant, Dozier Bolden, for his alleged participation in the altercation.

On June 23, 1976, the Prosecuting Attorney for the First Judicial Circuit, of which St. Francis County is a part, filed informations charging appellant, Truman Bolden, with first degree battery and charging Dozier Bolden as an accomplice.

Appellants were formally arraigned in the Circuit Court of St. Francis County on July 26, 1976, where pleas of not guilty to the charges were entered.

On October 11, 1976, appellants filed their motion to suppress the informations alleging that appellants had not been afforded a preliminary hearing to the end that it be determined if probable cause existed and that such failure dictated a dismissal of the informations.

On October 22, 1976, a pretrial conference was conducted by the Honorable O. H. Hargraves. During the pretrial conference, an exchange between Judge Hargraves and counsel for appellants culminated in counsel orally moving “that Judge Olman Hargraves be removed from the case because of bias.” Judge Hargraves replied, “I will be glad to excuse myself from it.”

Judge Hargraves, however, proceeded with the selection and instruction of a new jury commission for the selection of special jurors for the trial of this cause only in accordance with Ark. Stat. § 39-214.1 which was necessitated because of Judge Hargraves having previously sustained appellants’ motion to quash the current jury commission and the petit jury panel; the judge also reaffirmed that the trial of the case would be held, as scheduled, on October 26, 1976, with Judge John Anderson presiding; the judge also conducted a hearing on appellants’ motion to suppress the informations and, at the close of the hearing, denied the motion to suppress.

The Honorable John L. Anderson presided at appellants’ trial which commenced on October 26, 1976, and ended October 29, 1976. The jury found appellant, Truman Bolden, guilty of battery in the first degree, as charged, and fixed his punishment at twenty years in the Department of Correction and imposed a fine in the sum of $1,000.00. Appellant, Dozier Bolden, was found guilty of battery in the second degree and his punishment was fixed at three years in the Department of Correction and a fine of $1,000.00 was assessed.

APPELLANTS’ CONTENTIONS FOR REVERSAL

1. It was prejudicial error to deny the appellants a preliminary hearing.

2. It was prejudicial error for Circuit Judge O. H. Hargraves to exercise discretionary powers after he had excused himself from appellants’ case.

3. It was error for the trial court to refuse to direct a verdict.

4. It was prejudicial error to submit a verdict form under which it cannot be said the jury acted according to law.

THE DECISION

I.

We are persuaded that appellants’ contentions two and four have merit, and, accordingly, the verdicts and judgment are reversed.

The record reflects that Circuit Judge Hargraves, in response to appellants’ motion, voluntarily disqualified himself from participating in this case at the inception of the pretrial conference held on October 22, 1976. Having announced from the bench and for the record his disqualification, Judge Hargraves lost jurisdiction of the case and was without authority to act further in any judicial capacity, except to make the proper transfer of the case or take the appropriate steps for the selection of another judge. However, this record reflects that the transfer of the case was not made until after Judge Hargraves had selected a new jury commission, instructed the new jury commission on its duties and responsibilities and ruled on the validity of appellants’ motion challenging the charges pending against them on the grounds that no preliminary hearing had been afforded appellants.

The judge’s voluntary disqualification may have, in the judgment of appellants and their counsel, amounted to an admission of his bias and prejudice, and for the judge to proceed with issues, raised by defendants, involving the exercise of discretion, may have further supported their doubt or suspicion of the impartiality of his rulings. Indeed, the proper administration of the law requires not only that judges refrain from actual bias, but also that they avoid all appearances of unfairness.

Judge Hargraves, however, is to be commended for his voluntary action, whether he actually sheltered any bias or not, in order to dispel any thought or suspicion that the litigants may not be receiving an impartial trial.

In 48 C.J.S., Section 97, at page 1105, it is provided:

“The disqualification of a judge generally deprives him of authority to perform any judicial act or to perform any act calling for an exercise of judicial discretion in connection with the pending cause, except to select another judge or to make a transfer of the case in accordance with the law.”

II.

The applicable statutory provision in providing for the punishment upon a verdict of guilty for the charges pending against the appellants provides: A defendant convicted of a felony may be sentenced to pay a fine in the sum not exceeding 115,000.00 if the conviction is of a class A or B felony (Ark. Stat. 41-1101); a defendant convicted of a felony may be sentenced to a term of imprisonment for not less than five years nor more than fifty years, or life, if the conviction is of a class A felony; and not less than three years nor more than twenty years, if the conviction is of a class B felony (Ark. Stat. 41-901). (Emphasis supplied)

The verdict forms used in the instant case, in relevant part, are as follows:

“We, the jury, find the Defendant, Truman Bolden, . . . guilty of . . . and fix his punishment at imprisonment in the Arkansas Department of Correction for a period of_years and a fine of $__”

In Brown v. State, 261 Ark. 683 (May 23, 1977), we reversed and remanded a conviction in which the verdict form submitted to the jury provided:

“ . . . fix his punishment at_years in the Arkansas Penitentiary and/ep a fine of $___”

The Court said the verdict form in Brown indicated that the assessment of the fine was mandatory and consequently, the trial court erred.

We conclude that reversible error was committed inasmuch as the verdict forms submitted indicated that the assessment of penalties was mandatory in case of a verdict of guilty, while under the statutes, the enforcement of penalties is optional with the jury.

III.

The appellants have argued strenuously that under Arkansas Rules of Criminal Procedure, which became effective January 1, 1976, Rule 8.1 is mandatory in scope. Rule 8.1 provides:

“An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay.”

In Gerstein v. Pugh, 420 U.S. 103 (1975), the United States Supreme Court stated:

“. . . we hold that the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extend restraint of liberty following arrest.”

In light of Gerstein v. Pugh, supra, we are persuaded that an arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay to the end that a judicial determination of probable cause may be made as a prerequisite to extended restraint of the arrestee’s liberty following arrest.

Rule 8.1 is designed and has as its purpose to afford an arrestee protection against unfounded invasion of liberty and privacy. Moreover, the person under arrest taken before a judicial officer without unnecessary delay will have the charged explained, will be advised of his constitutional rights, and will have counsel appointed for him if an indigent, and arrangements for bail can be made expeditiously. Such action may avoid the loss of the suspect’s job and eliminate the prospect of the loss of income and the disruption and impairment of his family relationship. Indeed, these are basic and fundamental rights which our state and federal constitutions secure to every arrestee. Hence, we conclude that Rule 8.1 is mandatory in its scope. To hold this rule as directory only would, indeed, undercut these treasured rights. However, we disagree with appellant’s contention that a failure to comply with Rule 8.1 dictates a dismissal of the charges. See: Gerstein v. Pugh, supra, where the United States Supreme Court stated:

“. . . we adhere to the Court’s prior holding that a judicial hearing is not prerequisite to prosecution by information . .. nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction ...”

We conclude that this case should be reversed and remanded to the trial court in view of the error committed by the trial judge’s predecessor performing discretionary powers after disqualifying himself in the case and in view of the improper verdict form submitted to the jury.

Reversed and remanded.

We agree. Harris, C.J., and George Rose Smith and Hickman, JJ.

       The same verdict form was used for appellant-defendant, Dozier Bolden.

       Appellants were not afforded a hearing for the determination of probable cause. Moreover, appellant, Truman Bolden, although a family man and local resident of St. Francis County, and no prior criminal record, was held in jail for six days before making bail.


author: Conley Byrd, Justice.

text:
    Roger Dale HOBGOOD v. STATE of Arkansas
    CR 77-60
    562 S.W. 2d 41
    Opinion delivered February 6, 1978
    (Division II)
    [Rehearing denied March 27, 1978.]

      Robert C. Compton and Floyd M. Thomas, Jr., of Brown, Compton <3? Prewett, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Roger Dale Hobgood was charged with capital felony murder, kidnapping and burglary. The charges arose out of an incident on or about June 28, 1976, when appellant broke into the home of Bernice Thomas after using a rifle to run off the chief of police and the mayor. While in the home he killed Bernice Thomas and held captive his estranged wife, Brenda Hobgood, Shane Hobgood and Leanne Thomas. At the trial which started at the beginning of the day on January 12, 1977, and ended late in the evening on January 14th, the jury returned verdicts of murder in the first degree, kidnapping and burglary. The punishment for murder in the first degree was fixed at life in prison. The jury set the punishment at 3 years each for the kidnapping and burglary charges.

Appellant admitted the killing of Bernice Thomas and placed his principal defense upon self-induced intoxication, Ark. Stat. Ann. § 41-207 (Crim. Code, 1976). The trial court instructed the jury as to the elements of the crime charged and told them that the State was required to prove every element of the crimes beyond a reasonable doubt. Then pursuant to Ark. Stat. Ann. § 41-110(4) [Crim. Code, 1976] the trial court told the jury that self-induced intoxication was an affirmative defense which appellant had to prove by preponderance of the evidence. For reversal appellant contends that Ark. Stat. Ann. § 41-110(4) (Crim. Code 1976) violates the due process clause of the Constitution of the United States of America. Appellant’s principal reliance is upon the case of Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975).

We find no merit to appellant’s contention. Any doubts raised by Mullaney v. Wilbur, supra, were laid to rest in Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).

We have reviewed this 733 page record pursuant to Ark. Stat. Ann. § 43-2725 (Repl. 1977). This review shows that appellant’s employed counsel were well prepared to try the lawsuit. We have reviewed those few objections that were made and sustained contrary to appellant’s contentions by the trial court and have found no errors prejudicial to the rights of appellant.

Affirmed.

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


author: Frank Holt, Justice. Carleton Harris, Chief Justice,

text:
    Charles Edward MARSHALL v. STATE of Arkansas
    CR 77-200
    561 S.W. 2d 76
    Opinion delivered February 6, 1978
    (In Banc)

      Wheeler, Watkins, Graham & Wyrick, by: William C. Gooding, for appellant.

      Bill Clinton, Atty. Gen., by: John Anderson, Jr., Dep. Atty. Gen., for appellee.
   Frank Holt, Justice.

On a plea of guilty to aggravated robbery, appellant was sentenced to twenty years ’ imprisonment in the Department of Correction. Subsequently, appellant petitioned the court, pursuant to Rules of Crim. Proc., Rule 37 (1976), to modify or vacate his sentence on the allegation, inter alia, that he pleaded guilty upon advice of counsel in the mistaken belief he would receive a five year sentence based upon a mutual agreement with the state. Consequently, the court erred in sentencing him in excess of the unconditional agreement without informing appellant before imposition of sentence that it would not accept the state’s recommendation. After an evidentiary hearing, appellant’s motion was denied. Appellant now contends, through court appointed appellate counsel, that the sentence was imposed in violation of Arkansas law because the trial judge did not advise appellant in open court that the plea agreement was not binding and if appellant pleaded guilty, the disposition could be different from that contemplated by a plea agreement. Consequently, his plea was based upon a misunderstanding by him of the law and his rights.

At the Rule 37 hearing, appellant testified that it was his understanding that a plea agreement had been made between the prosecuting attorney and his court appointed counsel whereby appellant would receive a five year sentence in return for his guilty plea. His plea of guilty was based on that understanding and belief. It is undisputed that this plea agreement existed. Even so, the state points out that appellant signed a plea and waiver form, with the assistance of court appointed trial counsel, which stated the court was not bound by any recommendation. Appellant admitted he was aware of this provision. Further, upon being sentenced, the appellant responded in the negative when the court inquired if he had any questions. Therefore, the state argues that no prejudicial error is demonstrated even though no inquiry was made in open court about a plea agreement. It appears that at the time of the acceptance of the guilty plea and three days later at the sentencing, the court carefully advised appellant of practically all of his constitutional and statutory rights except whether the tendered plea was a result of a plea agreement.

In determining the voluntariness of a plea, Rules of Crim. Proc., Rule 24.5 (1976), provides in mandatory terms:

The court shall not accept a plea of guilty or nolo contendere without first determining that the plea is voluntary. The court shall determine whether the tendered plea is the result of a plea agreement. If it is, the court shall require that the agreement be stated. (Italics supplied.)

Rule 25.3 (c), which defines the responsibility of the trial judge, provides that “ [i]f the parties have not sought the concurrence of the trial judge in a plea agreement, .... he shall advise the defendant in open court at the time the agreement is stated that:

(i) the agreement is not binding on the court;
(ii) if the defendant pleads guilty or nolo contendere the disposition may be different from that contemplated by the agreement.” (Italics supplied.)

As indicated, it is undisputed that a plea agreement existed between appellant’s court appointed counsel and the state providing for a five year sentence. The appellant relied upon this agreement. Although the state recommended a five year sentence, the court did not then determine in open court if it resulted from a plea agreement and proceeded to impose a sentence four times greater than what appellant was told he would receive. The pertinent commentary to Rule 25.3 (c) reads: “The rule is fashioned to eliminate to the maximum extent possible the chance of a defendant misunderstanding the nature and consequences of the plea bargaining procedure. ” (Italics supplied.) Obviously, the mandatory requirements of the recited rules with respect to a plea agreement are to avoid the chance, as here, of a misunderstanding by the accused of the law and his rights. We recently held in McGee v. State, 262 Ark. 473, 557 S.W. 2d 885 (1977), where the trial court failed to advise the defendant in open court that a plea agreement was not binding on the court, that “there was no assurance that the guilty plea was intelligently and voluntarily made.”

Here the record is absolutely silent with reference to the admitted plea agreement being brought to the attention of the court, either through its inquiry or the attorneys. It is true that the state recommended a five year sentence; however, there is a distinct difference between a unilateral recommendation by the state and one, as here, based upon an agreement resulting from plea bargaining. To remove any possibility of prejudice, we reduce the sentence to five years’ imprisonment if the state, through the attorney general, decides to accept this reduction within seventeen calendar days. Otherwise, the sentence is set aside and the cause remanded with directions that appellant be permitted to withdraw his plea of guilty and plead anew.

We deem it unnecessary to discuss appellant’s other contention for reversal.

Affirmed upon acceptance of modification.

Harris, C.J., dissents.

Carleton Harris, Chief Justice,

dissenting. I disagree with the conclusions reached by the majority in this case.

In the first place, at the time appellant was sentenced, he was asked if he had any questions and answered this inquiry in the negative. Furthermore, at the Rule 37 hearing, the record reveals the following:

“Q. Mr. Marshall, before you entered a plea of guilty, you were furnished this Plea and Waiver Form?
A. Yes, sir.
Q. And this is the same one which you read, and which you signed before entering a plea of guilty?
A. Yes, sir.
Q. And that form explains the effect of your entering a plea of guilty, does it not?
A. Yes, sir.
Q. And it also states that the court is not bound by any recommendation, is that not true?
A. Yes, sir.
q. And you knew that at the time you entered your plea, didn’t you? (Emphasis added.)
A. Yes, sir.” (All emphasis supplied.)

It thus clearly appears that Marshall was advised, and understood, that the trial court was not bound by any agreement between the prosecuting attorney’s office and appellant’s counsel and, accordingly, was not prejudiced by the fact that the court did not specifically tell appellant that he was not bound by the recommendation of the prosecuting attorney.

I would affirm.


text:
    Joe C. BRYAN et ux v. EASTON TIRE COMPANY et al
    77-146
    561 S.W. 2d 79
    Opinion delivered February 6, 1978
    (In Banc)

      Robert W. McCorkindale, II, of Walker, Campbell, McCorkindale & Toung, for appellants.

      Jerry D. Pinson, of Pinson & Reeves, for appellees.
   Darrell Hickman, Justice.

The Boone County Circuit Court held that a writ of garnishment was a superior claim to a prior unrecorded assignment of a second mortgage.

We find the trial court’s decision correct although its reasoning incorrect. The note, which was secured by the second mortgage, was not assigned, or at least there was no evidence of an assignment. Therefore, the garnishment took priority over an assignment only of a mortgage without the accompanying note. The note and the mortgage are inseparable. An assignment of the note carries the mortgage, while an assignment of a mortgage alone is a nullity. Rockford Trust Company v. Purtell, 183 Ark. 918, 39 S.W. 2d 733 (1931).

The facts are essentially undisputed. The appellee, Easton Tire Company, obtained a judgment against George Nooner for $30,000 in June of 1976. In July, 1976, in an unrelated transaction, Nooner assigned his interest in a second mortgage on Saline County property to the appellants, Joe C. Bryan and his wife. Nooner had bought some Missouri property from Bryan and still owed him for it, and the second mortgage was assigned as additional collateral. The second mortgage was security for a $15,000 debt Spa City Sodding Service, Inc. owed to George Nooner. After the assignment in August of 1976, Easton Tire Company issued a writ of garnishment against Spa City. No answer was filed and judgment was taken against Spa City in September of 1976.

The appellants filed a petition to intervene claiming, by virtue of the assignment of the mortgage, the money Spa City owed to Nooner.

The trial court decided that the garnishment was entitled to precedence because the assignment was not recorded and dismissed the petition to intervene.

Recording was irrelevant. An assignment does not have to be recorded to be valid against later claims against the assignor. Neal v. Bradley, 238 Ark. 714, 384 S.W. 2d 238 (1964). Our statutes do not require assignments to be recorded. See Ark. Stat. Ann. §§ 16-114, 16-116 (Repl. 1968); and, § 51-1019 (Repl. 1971).

Apparently it was not the intention of Nooner and the appellants for the debt from Spa City, to be assigned. The assignment gave Nooner a ninety day grace period in which to institute foreclosure proceedings on the second mortgage. Mr. Bryan testified that he and Nooner agreed that Nooner would continue to collect the money from Spa City because it was accustomed to paying him and Nooner would, in turn, pay Bryan.

The trial judge dismissed the appellants’ petition and we will affirm this correct ruling although it was for an erroneous reason. Herr v. Murphree, 240 Ark. 834, 402 S.W. 2d 393 (1966). The appellants argue that the question of the note’s assignment was not raised at the trial and cannot be raised for the first time on appeal. The appellants’ petition was controverted from the beginning. There was not a stipulation of facts. The record shows no waiver by the appellee of any requirement that the appellants prove their case. The appellants had to prove a valid assignment of a debt to maintain their petition to intervene. There was simply no evidence of an assignment of the debt.

Affirmed.