text:
    LITTLE ROCK ELECTRICAL CONTRACTORS, INC. v. The OKONITE CO. and Dealers Electrical Supply Co., Inc.
    87-292
    744 S.W.2d 381
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988
    [Rehearing denied March 21, 1988.]

      Skokos, Simpson, Graham & Rainwater, P.A., by: Michael R. Rainwater, for appellant.

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

       Hays, J., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

This appeal is from a jury verdict in favor of the defendant appellees, Okonite and Dealers Electrical, on a complaint by the appellant, Little Rock Electrical Contractors, Inc. (“LRECI”), for breach of an implied warranty of merchantability. LRECI argues that the trial court committed reversible error in giving a comparative fault instruction over objection by LRECI that such an instruction was improper in a suit sounding in contract, not tort, for direct and incidental damages. We agree.

Sometime in 1984, LRECI placed an order for electrical cable from Dealers Electrical for use at the Millwood Water Treatment Plant. Okonite shipped several reels of the cable, ordered through Dealers Electrical, to the work site. After discovering punctures in the insulation material surrounding some of the cable, LRECI notified Dealers Electrical and Okonite. Suit was eventually brought by LRECI for breach of warranty on the basis that the punctures constituted defects which rendered the cable unfit for the ordinary purpose for which such cable is used. By its complaint, LRECI sought to recover the cost of replacement cable and any incidental damages. Okonite and Dealers Electrical defended on the theory that any damage to the cable occurred during LRECI’s storage of the cable at the work site and was not a manufacturing defect or the result of conduct attributable to either Okonite or Dealers Electrical.

The trial court instructed the jury that to recover on a claim against Okonite and Dealers Electrical for breach of an implied warranty of merchantability, LRECI had to prove that: (1) LRECI sustained damages; (2) the defendant appellees sold cable that was not merchantable — not fit for the ordinary purposes for which such cable is used; (3) the unmerchantable condition was a proximate cause of LRECI’s damages; and (4) LRECI was one whom the defendant appellees might reasonably expect to use the cable. See E.I. Du Pont Nemours & Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

However, over objection by LRECI, the court also instructed the jury that: (1) if LRECI’s damages were caused by the fault of both LRECI and the defendant appellees, then the fault of both must be compared; and (2) if LRECI’s fault was less than the fault of Okonite and Dealers Electrical, LRECI was entitled to recover damages reduced in proportion to the degree of its own fault; but (3) if Okonite and Dealers Electrical were not at fault, or if LRECI’s fault was equal to or greater than that of the defendant appellees, LRECI was not entitled to recover any damages.

While that instruction properly tracks the language of subsections (1) and (2) of section (b) of our comparative fault statute, Ark. Code Ann. § 16-64-122 (1987), formerly found at Ark. Stat. Ann. §§ 27-1763 — 27-1765 (Repl. 1979), LRECI convincingly argues that section (a) of 16-64-122 precludes application of the comparative fault defense to any actions but those for “damages for personal injuries or wrongful death or injury to property . . . .”

We first deal with the contention by Okonite and Dealers Electrical that while LRECI made a timely and proper objection to the instruction, this court should not reach the merits of LRECI’s argument as the objection was not abstracted.

The omission was an obvious one and upon discovery of the mistake, LRECI abstracted the objection in its reply brief. While we do not approve of that procedure, Rule 9(2) of the Rules of the Supreme Court and the Court of Appeals provides that the decree or judgment may be affirmed for noncompliance with our rules if this court finds the abstract to be flagrantly deficient, or to involve an unreasonable or unjust delay of the disposition of the appeal. We do not find this to be the case and therefore proceed to resolve LRECI’s argument on its merits.

Whereas LRECI cites various authorities in support of its contention that it is error to give a comparative fault instruction in contract actions seeking direct and incidental damages, as opposed to actions sounding in tort, or contract actions seeking consequential damages for injury to person or property, we find it unnecessary to consider those authorities by virtue of the plain language of § 16-64-122(a), which provides:

In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages. [Emphasis ours.]

LRECI’s suit was not one for damages for personal injuries or wrongful death or injury to property, and it was error to instruct the jury on comparative fault.

Okonite and Dealers Electrical place great emphasis on section (c) of § 16-64-122 in which the term “fault” as used in section (a) is defined as any act, including breach of warranty, which is a proximate cause of any damages sustained by any party. As suggested by LRECI in its reply brief, there is no question that the fault to be compared may consist of a party’s breach of warranty; however, the real issue is when may such fault be compared. That question is answered in the first fifteen words of § 16-64-122(a).

The only remaining issue is whether, notwithstanding the erroneous instruction, LRECI suffered any prejudice as a result of the court’s instruction on comparative fault. In the absence of any prejudice, this court will not reverse. Ray v. Murphy, 284 Ark. 512, 683 S.W.2d 916 (1985).

The jury returned a general verdict by which it simply stated, “We, the Jury, find for the Defendants, The Okonite Company and Dealers Electrical Supply Company.” As such, it is impossible to determine what impact the comparative fault instruction had on the jury. It is easy to conceive that an instruction to compare fault suggests that there is fault on the part of both parties. The jury may have concluded that: (a) the defendant appellees in fact did not breach the implied warranty of merchantability; or (b) there was a breach of warranty, but, pursuant to the comparative fault instruction, negligence in storage or handling of the cable by LRECI was equal to or greater than any fault on the part of the defendant appellees and would preclude a finding in favor of LRECI.

Either conclusion would support the general verdict returned by the jury, but, as indicated previously, any comparison of fault would have been improper and would constitute prejudice. Because it cannot be determined from the jury’s verdict which conclusion was reached, we cannot determine whether the error was harmless. Safeway Stores, Inc. v. Gross, 240 Ark. 206, 398 S.W.2d 669 (1966). Accordingly, we reverse and remand for a new trial without the comparative fault instruction.

Reversed and remanded.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Billy J. MURRAY v. ALTHEIMER-SHERRILL PUBLIC SCHOOLS
    87-302
    743 S.W.2d 789
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988
    [Rehearing denied February 29, 1988.]

      Mitchell & Roachell, by: Paul J. Ward, for appellant.

      Laser, Sharp & Mayes, P.A., by: W. Paul Blume, for appellee.

      Glaze, J., not participating.

   Jack Holt, Jr., Chief Justice.

This appeal is from a judgment of the Jefferson County Circuit Court dismissing with prejudice appellant Billy J. Murray’s appeal from a decision by the Altheimer-Sherrill School Board not to renew Murray’s teaching contract for the 1986-87 school year. Murray argues that the board’s decision to nonrenew failed to comply with the Teacher Fair Dismissal Act of 1983, Ark. Code Ann. §§ 6-17-1501 — 6-17-1510 (1987), and the school district’s reduction in force policy. Because we agree that the board’s action failed to comply with the district’s reduction in force policy;, we reverse and remand for proceedings consistent with this opinion.

Murray was employed in the Altheimer-Sherrill School District for five years in various capacities both at the middle school and at the high school. His duties included athletic director, coach, physical education teacher, and drivers education instructor. An examination of letters and memoranda from Murray’s personnel file reveals that on several occasions during those five years Murray was informed that he needed to improve in such areas as gym maintenance, taking classes away from school grounds without authorization, tardiness, improper early dismissal of classes, and lack of class discipline. It was conveyed that failure to improve in these areas could result in disciplinary action.

On recommendation of the school superintendent, Fred Martin, Jr., the school board, without notice to Murray, voted on April 28,1986, not to renew his teaching contract for the 1986-87 school year. Notice of superintendent Martin’s recommendation of nonrenewal was sent to Murray on the following day and reads in part:

Due to financial limitations, declining enrollment and program changes, with regret I am informing you that I am recommending the non-renewal of your contract for the 1986-87 school term.
I am also informing you that you may file a written request with the school board of the district for a hearing within 30 days after you receive this notice.
The hearing may be private unless you or the board shall request that the hearing be public. At the hearing, you may be represented by a person of your choice.

Realizing that its April 28 vote of nonrenewal had taken place before notice and an opportunity to be heard had been afforded Murray, which is contrary to the Teacher Fair Dismissal Act and this court’s opinion in Green Forest Public Schools v. Herrington, 287 Ark. 43, 696 S.W.2d 714 (1985), the board met on May 9, 1986, and voted to rescind its April 28 vote of nonrenewal. Murray subsequently requested a public hearing on superintendent Martin’s recommendation of nonrenewal, and on May 22 the board reconvened. At the conclusion of the hearing, the board again voted not to renew Murray’s teaching contract. The circuit court upheld that decision.

The determination not to renew a teacher’s contract is a matter within the discretion of the school board, and the circuit court cannot substitute its opinion for that of the board in the absence of an abuse of discretion by the board. Leola School District v. McMahan, 289 Ark. 496, 712 S.W.2d 903 (1986); Chapman v. Hamburg Public Schools, 274 Ark. 391, 625 S.W.2d 477 (1981). Moreover, it is not this court’s function to substitute our judgment for the circuit court’s or the school board’s. Leola, supra; Moffitt v. Batesville School District, 278 Ark. 77, 643 S.W.2d 557 (1982). We will reverse only if we find on review of the trial court’s decision that the court’s findings were clearly erroneous. Ark. R. Civ. P. 52; Green Forest, supra.

I. Notice and opportunity to be heard

Murray first argues that notwithstanding the school board’s formal rescission of the April 28 vote of nonrenewal, under our holding in Green Forest (decided under the Teacher Fair Dismissal Act of 1979, Ark. Stat. Ann. §§ 80-1264 — 80-1264.10 [Repl. 1980]) this case should be reversed because the board failed to provide proper notice and an opportunity to be heard. We disagree.

Green Forest involved a school board’s vote of nonrenewal at a hearing requested by the teacher after having received notice. We determined that the board’s action did not constitute substantial compliance with the notice provisions of the Act in light of evidence that the board had already voted to nonrenew at a prior hearing of which the teacher had no knowledge. In the case before us, the school board argues that Green Forest is distinguishable in that the board formally rescinded all actions taken prior to the May 22 hearing.

Ark. Code Ann. § 6-17-1506(a) and (b) (1987) basically provide that every contract of employment made between a teacher and the board of directors of a school district shall be renewed in writing unless by May 1 of the contract year the teacher is notified in writing that the school superintendent is recommending nonrenewal. That notice must contain a simple but complete statement of the reasons for such recommendation.

Section 6-17-1509(a) provides that a teacher who receives notice of recommended nonrenewal may file a written request with the board of directors for a hearing. As to nonprobationary teachers, § 6-17-1510(b)(1) and (2) set out that upon conclusion of the hearing, the board may reject or modify the superintendent’s recommendation or refuse to renew the contract for: (1) any cause which is not arbitrary, capricious, or discriminatory; or (2) violation of the reasonable rules and regulations promulgated by the board.

It is clear that the Act contemplates that notice and an opportunity to be heard be accorded before the board’s decision on the superintendent’s recommendation not to renew a non-probationary teacher’s contract. It therefore remains to determine whether the board’s rescission of the April 28 vote constitutes substantial compliance which otherwise might be lacking under our holding in Green Forest.

The record discloses that the May 22 hearing opened with an admonition from the board president, Clyde Sites, that the only issue before the board was whether Murray’s teaching contract should or should not be renewed for the reasons stated in superintendent Martin’s recommendation and that only information pertinent to that issue would be allowed. Paul Blume, counsel on behalf of the school board, emphasized that the board had rescinded its April 28 vote, and he further cautioned the board, “[You] should not vote based on any preconceived notions, indeed, if you have any, but should make your decision solely on what has been brought before you and will be brought before you during this hearing.”

This “cautionary instruction” coupled with the board’s formal rescission of its original vote cured any error resulting from the April 28 hearing. We presume that the board members are fair-minded and resolve matters presented to them on an impartial basis.

In light of the foregoing, we cannot say that on this issue the trial court’s conclusions that the board had substantially complied with the notice and hearing provisions of the Act were clearly erroneous.

II. Failure to evaluate

Murray next argues that the Altheimer-Sherrill School District violated the Teacher Fair Dismissal Act by failing to evaluate Murray in writing during the course of the 1985-86 school year. Subsections (a) and (c) of § 6-17-1504 provide:

Each teacher employed by the board of directors of a school district must be evaluated in writing annually.
* * *
Whenever a superintendent or other school administrator charged with the supervision of a teacher believes or has reason to believe that a teacher is having difficulties or problems meeting the expectations of the district or its administration and the administrator believes or has reason to believe the problems could lead to termination or nonrenewal of contract, the administrator shall bring the problems and difficulties to the attention of the teacher involved in writing and shall document the efforts which have been undertaken to assist the teacher to correct whatever appears to be the cause for potential termination or nonrenewal.

Substantial compliance with the requirements of the Teacher Fair Dismissal Act is all that is required. McElroy v. Jasper School District, 273 Ark. 143, 617 S.W.2d 356 (1981); Fullerton v. Southside School District, 272 Ark. 288, 613 S.W.2d 827 (1981).

Included in Murray’s personnel file is a letter of formal counseling dated October 9, 1985, which discusses Murray’s unauthorized early dismissal of classes, and a memo dated October 18,1985, which discusses Murray’s improper removal of classes from campus. Murray was subsequently notified in writing that he would be evaluated for the 1985-86 school year during third period on March 20, 1986. The evaluation form indicates that the principal was unable to perform the evaluation because Murray was nowhere to be found, either on the date specified or on the next day. Finally, a memo dated February 2, 1986, sets out that the high school principal conferenced with Murray as to the teacher’s difficulties with class scheduling, class discipline, and absences from classes.

Although we rule that the trial court’s finding of a substantial compliance with the Act on this issue is not clearly erroneous, we hasten to add that the evidence of record barely passes muster. The Act contemplates and fairness requires that superintendents and other school administrators should not only bring problems and difficulties to the attention of the teacher in writing but should also fully document the efforts undertaken to correct the problems.

III. Reduction in force policy

Murray’s final argument concerns the school district’s failure to adhere to the provisions of its own reduction in force policy. In its notice to Murray concerning nonrenewal of his contract, the reasons given were: “financial limitations, declining enrollment and program changes.” Those reasons are embodied in a reduction in force policy adopted by the school board in a previous school year. That policy contains a point system which determines the priority of layoffs when reductions in staff are necessary.

Section 6-17-201 (a) of the Teacher Fair Dismissal Act provides that each school district shall have a set of written personnel policies. Section 6-17-204(a) provides that the personnel policies shall be incorporated as terms of teacher contracts and shall be binding upon the district and its teachers unless changed by mutual consent. In Maxwell v. Southside School District, 273 Ark. 89, 618 S.W.2d 148 (1981), this court noted as to similar provisions contained in the prior Act:

We do not imply that such policies have the force of law, since legislative power cannot be delegated, but we do agree with the view that as a matter of contract law and fair dealing even a non-tenured teacher may reasonably expect the district to comply substantially with its own declared policies.

The appellee’s reduction in force policy provides that reductions “may be implemented in times of financial limitations, program changes, declining enrollment, closing of facilities or other serious business or legal reasons” and further specifies that ■ upon a determination that a reduction in force is necessary:

[t]he attempt shall first be made to reduce the staff by attrition and early retirement incentives. Secondly, the employees with temporary or emergency certification will be released. Finally, a point system will be applied to all other personnel in the areas of (1) Seniority, (2) Educational level; and (3) Principal’s and/or supervisor’s recommendations. The point system will determine the order of employee layoff. [Emphasis ours.]

The policy clearly provides that with the exception of attrition and early retirement, reduction or release of nonprobationary employees will be determined by the point system.

There is no dispute that as between Murray and the other coaches at the middle and high schools, Murray had accumulated the most points. However, it is the board’s position that its policy allows the board to go beyond the point system and consider Murray’s instructional deficiencies in determining whether to release Murray rather than someone with fewer points but better classroom performance. In support of that position, the board calls our attention to the following rather broad introductory language contained within the policy:

The adoption of this policy is not intended to limit the power and authority of the district to fully determine when to release or reassign personnel.

To allow the board to circumvent application of the point system when determining the priority of layoffs as to nonprobationary teachers merely by alluding to the cited language would render meaningless the requirements of § 6-17-204(a) and the intent of our language in Maxwell that fair dealing and principles of contract law suggest that a teacher may reasonably expect the district to comply with its declared policy.

We emphasize that the reasons for nonrenewal listed in the notice [§ 6-17-1506(b) requires a “simple and complete statement of the reasons for nonrenewal”] clearly made reference to the reduction in force policy adopted by the district. As such, Murray was entitled to rely upon the declaration in the policy that the nonrenewal determination would be governed by application of the point system, which by definition took into account Murray’s on-the-job performance.

Under the third category in the point system, “principal’s or supervisor’s evaluation,” points are given for “classroom management, discipline, instructional skills, and overall education.” Hence, all nonprobationary teachers are put on notice that when reductions in force are being recommended, evaluations of teacher skills and performance have a direct bearing on the order of employee layoff pursuant to the point system. In the areas listed, Murray scored less than either of the other coaches. However, in the categories of seniority and education level, Murray’s combined scores were higher and resulted in the highest total number of points overall.

As is evidenced by statements made at the hearing, Murray was under the impression that in the event of a reduction in force due to “financial difficulties, program changes, and declining enrollment,” as provided in the policy, he would be retained pursuant to the point system notwithstanding his failure to score well in the area of teacher performance. That interpretation is clearly justified when one considers the overall language of the personnel policy, and any other reading would ignore the obvious intent underlying adoption and structuring of the point system. Findings by the trial court to the contrary, or of substantial compliance, are clearly erroneous and require reversal.

For the foregoing reasons, the judgment is reversed and remanded for a determination of the amount of back pay to be awarded and of Murray’s right to reinstatement. See Maxwell, supra.

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    ARKANSAS VINEGAR COMPANY and American Manufacturers Mutual Insurance Company v. Haril L. ASHBY (Dec’d)
    87-309
    743 S.W.2d 798
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      Davis, Cox & Wright, by: Constance G. Clark, for petitioners.

      Jay N. Tolley, for respondent.
   John I. Purtle, Justice.

We granted review of the decision of the Court of Appeals pursuant to Supreme Court Rule 29(6), which provides that this court may review decisions of the Court of Appeals when the case involves an issue of significant public interest or a legal principle of major importance. The issue to be considered is whether the Court of Appeals was correct in determining that the Workers’ Compensation Commission improperly denied the decedent’s dependent children an increase in benefits upon the remarriage of their mother. We agree with the Court of Appeals and affirm its decision. See Ashby v. Arkansas Vinegar Company, 22 Ark. App. 167, 737 S.W.2d 177 (1987).

The husband and father was fatally injured in a job related accident on June 11, 1984. The worker’s compensation carrier commenced dependent compensation payments to the widow and five minor children pursuant to Ark. Code Ann. § 11-9-527(c)(1) and (c)(2). The widow and the five children began drawing the maximum weekly benefits of $154.00 and this continued until April 10, 1986, when the widow remarried. At that time the carrier paid the widow a lump sum payment equal to 104 weeks of her share of the weekly benefits. The carrier continued payment to the dependent children in the amount of $70.84 a week, which was their proportionate share of the $154.00 weekly benefit.

The relevant provisions of Ark. Code Ann. § ll-9-527(c), (d) and (g) (1987) are:

(c) BENEFICIARIES — AMOUNTS. . . .
(1)(A) To the widow if there is no child, thirty-five (35%) and the compensation shall be paid until her death or remarriage. However, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided in this section;
(2) To the widow or widower if there is a child, the compensation payable under subdivision (c)(1) of this section and fifteen percent (15%) on account of each child;
(3) To one (1) child if there is no widow or widower, fifty percent (50%). If more than one (1) child, and there is no widow or widower, fifteen percent (15%) for each child, and in addition thereto, thirty-five percent (35 %) to the children as a class, to be divided equally among them;
(d) TERMINATIONS OF DEPENDENCE. (1) In the event the widow remarries before full and complete payment to her of the benefits provided in subsection (c) of this section, there shall be paid to her a lump sum equal to compensation for one hundred four (104) weeks, subject to the limitation set out in §§ 11-9-501 — 11-9-506.
(g) CESSATION OF COMPENSATION TO PART. Upon the cessation of compensation under this section to or on account of any person the compensation of the remaining persons entitled to compensation for the unexpired part of the period during which their compensation is payable shall be that which the persons would have received if they had been the only persons entitled to compensation at the time of the decedent’s death.

The provisions of Ark. Code Ann. § 11-9-527 (d) essentially state that in the event the widow remarries there shall be paid to her a lump sum equal to compensation for 104 weeks. This section must be construed along with Ark. Code Ann. § 11-9-527(g) which provides that upon the termination of benefits to any person the compensation of the remaining persons entitled to compensation “shall be that which the persons would have received if they had been the only persons entitled to compensation at the time of the decedent’s death.”

The first rule in interpreting a statute is to construe it just as it reads by giving the words their ordinary and usually accepted meaning. Bolden v. Watt, 290 Ark. 343, 719 S.W.2d 428 (1986); and City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977). Statutes relating to the same subject should be read in a harmonious manner if possible. All statutes on the same subject are in pari materia and must be construed together and made to stand if capable of being reconciled. Bolden v. Watt, supra; Sargent v. Cole, 269 Ark. 121, 598 S.W.2d 749 (1980); and Vandiver v. Washington County, 274 Ark. 561, 628 S.W.2d 1 (1982).

Provisions of the Arkansas Workers’ Compensation Act are to be construed liberally in favor of the claimant. International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W.2d 488 (1971). Other jurisdictions are divided on the interpretation of similar provisions in their workers’ compensation laws. Endlich v. Industrial Commission of Ohio, 475 N.E.2d 1309 (Ohio App. 1984), held that the “dowry” benefits paid to the widow at the time of her remarriage did not prevent immediate recalculation of the death benefit installment award to the remaining dependents. We will not attempt to total up the decisions on one side or the other since in our view the Arkansas Statutory language in this case is clear and unambiguous and it is not necessary to resort to determining the “intent of the legislature.”

The statute provides that in the event the widow remarries “there shall be paid to her a lump sum equal to compensation for 104 weeks.” The statute further provides that upon the cessation of compensation to any person the remaining persons are entitled to compensation at the rate “which the persons would have received if they had been the only persons entitled to compensation at the time of the decedent’s death.” The two sections are harmonious and the plain and ordinary meaning of the words is that the widow will receive a final payment in a “lump sum.” There is no provision in the statute, if we are to give the words their ordinary and accepted meaning, which would lead to any conclusion except that the lump sum payment is in lieu of continuing payments to the widow. Clearly the widow is no longer entitled to receive weekly benefits. Therefore, upon the remarriage of the widow the remaining dependents are entitled to compensation in the amount they would have received had they been the only persons entitled to benefits upon the death of their father.

We agree with the Court of Appeals that the commission was wrong in deciding that the carrier was entitled to “credit” the lump sum payment to the widow against the periodic payments due the remaining dependents. Therefore, the case will be remanded to the Workers’ Compensation Commission to order payments in accordance with this opinion.

Affirmed.


text:
    Ray Eugene McDANIEL v. STATE of Arkansas
    CR 87-154
    743 S.W.2d 795
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      Clinton Keith Jones, Jr., Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Lee Taylor Franke, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was found guilty of three counts of aggravated robbery and one count of theft of property. The trial court entered judgment on the verdict in accordance with the recommendation of the jury. The appellant received a total of thirty-seven years for the three aggravated robbery counts and three years for the theft of property count. For appeal he argues: (1) the court erred in failing to admonish the jury to disregard statements by the prosecutor concerning defendant’s prior arrest; (2) the court erred in allowing the introduction of a photograph; and (3) the court erred in not requiring the state to reveal the identity óf its confidential informant. For reasons stated below we affirm the conviction and sentence.

On the night of August 18, 1987, Wendy’s Restaurant in Fayetteville, Arkansas, was robbed by a knife wielding assailant. Acting upon information furnished by a confidential informant, the officers arrested the appellant. His defense was an alibi.

The appellant filed a timely motion for discovery and specifically requested disclosure of the identity of the confidential informant. The state responded to the discovery request but refused to furnish the name of the confidential informant. The appellant’s basis for disclosure of the identity of the confidential informant was that appellant had heard that the informant may have been involved in this specific crime. The state informed the court that it did not intend to use the informant as a witness against the accused at trial. The court overruled the appellant’s motion for disclosure of identification.

At a hearing five days before the trial, it was agreed that all discoverable material had been furnished and discovery would cease on that date. After this hearing the prosecuting attorney learned that appellant had been arrested in Illinois for car theft and for assault in Arkansas.

At trial on direct examination appellant testified that he had never been arrested or convicted of a felony. On cross-examination the appellant admitted that he had been arrested for car theft in Illinois and for assault in Arkansas. Appellant’s attorney objected claiming that the appellant’s prior arrests were not disclosed by the state in response to appellant’s discovery motion. The state’s attorney assured the court that he had not discovered the information about the appellant’s prior arrests until the day before it was presented in court. The trial court overruled appellant’s motion to instruct the jury to disregard the information about the arrest.

While one of the victims was testifying at trial, he displayed to the jury a scar on his throat and said that it was caused by the assailant at the time of the robbery. Later, a black and white photograph of the scar on the victim’s throat was introduced into evidence over the appellant’s objection that it was repetitive and had no probative value.

The appellant’s first argument is that the court should have admonished the jury to disregard the information obtained by the prosecutor on cross-examination concerning the appellant’s arrest for assault in Arkansas and for car theft in Illinois. The appellant’s attorney contends that if the state had completely supplied all the information about appellant’s prior arrests, he would have known not to allow the appellant to testify that he had never been arrested for a felony and had no prior trouble with the law.

Had the appellant requested it, he would have been entitled to an instruction limiting the jury’s consideration of testimony concerning his prior arrest to the issue of veracity. McFadden v. State, 290 Ark. 177, 717 S.W.2d 812 (1986); and Price v. State, 268 Ark. 535, 597 S.W.2d 598 (1980). But cross-examination about the prior arrest was proper in view of the fact that the appellant had specifically denied having had a prior arrest. Since the testimony was purely and genuinely rebuttal, the state was not required to furnish this information to the appellant prior to the trial. Vasquez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985); and Parker v. State, 268 Ark. 441, 597 S.W.2d 586 (1980). After all it was the appellant that brought this matter to the attention of the jury.

The second argument for reversal is that the court erred in allowing the introduction of a photograph of one of the victims. It was a black and white photograph of the victim’s throat which had been made about one week after his injury. We have viewed the photograph and do not deem it excessively gory or unduly inflammatory. The photograph may not have been necessary to prove the charge, but we cannot say the trial court abused its discretion in allowing the photograph to be introduced into evidence.

We examined our rule of introduction of photographs at criminal trials in the case of Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). Instead of promulgating a general rule of admissibility which essentially allows automatic acceptance of all the photographs of the victim and crime scene, we held that the trial court should carefully weigh the probative value of the photographs against their prejudicial nature. In Berry we held that evidence of six repetitious, gory, color photographs of the victim’s face, taken at the crime scene and at the examiner’s office, were excessive and obviously prejudicial. We further stated that the probative value of the photographs was outweighed by their prejudicial nature. Our general rule, as stated in Henderson v. State, 291 Ark. 138, 722 S.W.2d 600 (1987), is that photographs are admissible when they reveal the nature and location of wounds and are of assistance to the jury in understanding the testimony. See also Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973).

The third argument for reversal is that the trial court erred in refusing to direct the prosecution to reveal the identity of the confidential informant. The prosecuting attorney is required by A.R.Cr.P. Rule 17.1 to furnish the names and addresses of all persons whom he intends to call as witnesses at any hearing or at the trial. However, Rule 17.5(b) states that disclosure shall not be required where an informant’s identity is a prosecution secret and a failure to disclose will not infringe upon the constitutional rights of the defendant. The unofficial 1987 supplementary commentary to Rule 17.5 explains that when an informant merely supplies information upon which the police act, and the case stands or falls without the informant’s testimony, then there is no duty to furnish the name and address of the informant.

In the present case the state did not use the informant as a witness. Moreover, the appellant knew the names of all persons whom he suspected of being the informant or a participant in the crime. The question of whether or not the informant’s identity should be divulged calls for a balancing of the public interest in encouraging the flow of voluntary information against the defendant’s right to prepare his defense. Roviaro v. United States, 353 U.S. 53 (1957). If an informant was present or participated in the crime with the defendant, his testimony would be relevant and it would be prejudicial error for the state not to reveal his identity.

Since there is no evidence that the informant participated in the crime, or was a witness to the crime, nor possessed any exculpatory information, there is no showing that failure to identify the informant was in any way prejudicial to the appellant’s defense. Therefore, it was not error for the trial court to refuse to require the identity to be revealed.

Affirmed.


author: Robert H. Dudley, Justice. David Newbern, Justice, John I. Purtle, Justice,

text:
    Hortense BOATMAN v. Mable DAWKINS
    87-219
    743 S.W.2d 800
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      Mary Thomason, for appellant.

      George Van Hook, Jr., for appellee.
   Robert H. Dudley, Justice.

The primary issue in this case is whether a statute which requires an illegitimate child to file a claim for her share of her father’s estate within a shorter period of time than would be required for a legitimate child to do the same thing violates the equal protection clause of the fourteenth amendment. We uphold the constitutionality of such a statutory scheme and affirm the trial court.

On May 17, 1983, Steve Holmes died intestate, leaving an illegitimate child, Kristy Holmes, and another heir. On May 31, 1983, appellee, Mable Dawkins, filed a petition in probate court seeking to have herself appointed personal representative of the estate. See Ark. Code Ann. § 28-40-107 (1987), replacing Ark. Stat. Ann. § 62-2106 (Repl. 1971). The illegitimate child, Kristy, was not given notice of the petition for probate. See Ark. Code Ann. §§ 28-40-110 and-111 (1987), replacing Ark. Stat. Ann. §§ 62-2110 and -2111 (Repl. 1971 & Supp. 1985). On August 16, 1983, the petitioner was appointed administratrix. A final order closing the estate has not yet been entered. On March 6,1986, the appellant, Hortense Boatman, as mother and next friend of Kristy filed a petition in probate court to determine heirship. See Ark. Code Ann. § 28-53-101 (1987), replacing Ark. Stat. Ann. § 62-2914 (Repl. 1971). The probate court found that Kristy was the illegitimate child of the decedent, but that she could not inherit because she had not asserted her claim within 180 days of her father’s death. See Ark. Code Ann. § 28-9-209 (1987), replacing Ark. Stat. Ann. § 61-141(d) (Supp. 1985).

The appellant contends that since a legitimate child would have a longer period in which to assert his or her claim, the statutory scheme is unconstitutional. Ark. Code Ann. § 28-9-209 (1987), replacing Ark. Stat. Ann. § 61-141 (d) (Supp. 1985) provides in pertinent part:

(d) An illegitimate child or his descendants . . . may inherit real or personal property from his father or from his father’s blood kindred provided that ... an action is commenced or claim asserted against the estate of the father in a court of competent jurisdiction within 180 days of the death of the father,

(Emphasis added.)

In the argument section of her brief, the appellant cites a number of cases from the Supreme Court of the United States which stand for the proposition that the equal treatment protected by the fourteenth amendment prohibits unjustified discrimination against illegitimate children. See, e.g., Reed v. Campbell, _ U.S. _, 106 S.Ct. 2234 (1986); Mills v. Habluetzel, 456 U.S. 91 (1982); Trimble v. Gordon, 430 U.S. 762 (1977). We recognize the principle articulated by the Court, and we follow it. Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979). The General Assembly also recognized the principle and rewrote the statute at issue in order that there would be no unjustified discrimination. In fact, the emergency clause to the statute at issue, Ark. Code Ann. § 28-9-209 (1987), replacing § 61-141(d) (Supp. 1985), provides that it was enacted expressly to comply with the dictates of Trimble v. Gordon, supra.

While unjustified discrimination against illegitimate children is prohibited, the Supreme Court has recognized that a statutory differentiation based solely on illegitimacy can be justified by a state’s interests in preventing spurious claims against intestate estates, and in the maintenance of a prompt and accurate method of distributing an intestate’s property. Lalli v. Lalli, 439 U.S. 259 (1978). Those state interests may “justify the imposition of special requirements upon an illegitimate child who asserts a right to inherit from her father, and, of course, it justifies the enforcement of generally applicable limitations on the time and in the manner in which claims may be asserted.” (Emphasis added) Reed v. Campbell,_U.S__, 106 S.Ct. 2234 (1986). In Lalli v. Lalli, supra, the statutory limitation on the time an illegitimate child had to assert her claim was “during the lifetime of the father.” The Supreme Court held that was a constitutionally valid limitation on time. In the case at bar the questioned statute gives the illegitimate child more time to make her claim, “within 180 days of the death of the father.” Obviously, the statute, Ark. Code Ann. § 28-9-209 (1987), replacing Ark. Stat. Ann. § 61-141 (d) (Supp. 1985), does not violate the equal protection clause of the fourteenth amendment.

The appellant next argues that the trial court erred in applying the 180 day period for asserting a claim as set out in Ark. Code Ann. § 28-9-209 (1987), replacing Ark. Stat. Ann. § 61-141(d) (Supp. 1985). She contends that the trial court should have applied Ark. Code Ann. § 16-56-116 (1987), replacing Ark. Stat. Ann. § 37-226 (Repl. 1962), the statute of limitation which allows a minor up to three (3) years from the time he or she reaches majority to assert an action. The argument is without merit.

The probate statute giving an illegitimate child 180 days to file a claim is a statute creating a new right, and the right is created for only the 180 days. See Modica v. Combs, 158 Ark. 149, 249 S.W. 567 (1923). As was said by the Supreme Court of the United States in Walsh v. Mayer, 111 U.S. 31 (1884): “The provisions requiring it to be asserted in a particular mode and within a fixed time, are conditions and qualifications attached to the right itself, and do not form a part of the law of the remedy. If it is not asserted within the permitted period, it ceases to exist and cannot be claimed or enforced in any form.” The distinction between a statute creating a new right and a true limitation statute is explained in 51 Am. Jur. 2d, Limitation of Actions, § 15:

Statutes of limitation are to be distinguished from statutes which create a right of action not existing at common law and restrict the time within which action may be brought to enforce the right. Although the general rule is that a true statute of limitations extinguishes only the right to enforce the remedy and not the substantive right itself, the limitation of time for commencing an action under a statute creating a new right enters into and becomes a part of the right of action itself and is a limitation not only of the remedy but of the right also; the right to recover depends upon the commencement of the action within the time limit set by the statute, and if that period of time is allowed to elapse without the institution of the action, the right of action is gone forever. The statute is an offer of an action on condition that it be commenced within the specified time, and if the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist and the defendant is exempt from liability.

(Footnotes omitted.)

The appellant’s last point of appeal is that she was not given notice of the petition for probate as required by Ark. Code Ann. § 28-40-111 (1987), replacing Ark. Stat. Ann. § 62-2111 (Supp. 1985), and, therefore the 180 day statute is inapplicable. This issue was not pleaded, nor was it brought to the attention of the trial court. During her opening statement, the appellant’s counsel did mention the fact that “she should have been listed and given notice,” but there was nothing more. At the end of the trial, the trial judge made a finding of fact that the child was the illegitimate child of the decedent and reserved judgment on the constitutionality of the 180 day statute. At that time this point of appeal was not brought to the trial court’s attention. There were no post-trial motions raising the point. The point is being raised for the first time on appeal. We will not consider issues raised for the first time on appeal. Tompos v. City of Fayetteville, 280 Ark. 435, 658 S.W.2d 404 (1983).

Affirmed.

Holt, C.J., and Newbern, J., concur.

Hickman, Purtle, and Hays, JJ., dissent.

David Newbern, Justice,

concurring. The dissenting opinion expresses my United States constitutional sentiments; however, we are bound to follow those of the Supreme Court expressed in Lalli v. Lalli, 439 U.S. 259 (1978). No argument was presented on the issue of whether the Arkansas Constitution would require equal treatment for all children with respect to inheritance matters. Therefore, I concur in the majority opinion.

Holt, C.J., joins in this concurrence.

John I. Purtle, Justice,

dissenting. The majority’s statement of the issue in this case is: “[W]hether a statute which requires an illegitimate child to file a claim for her share of her father’s estate within a shorter period of time than would be required for a legitimate child to do the same thing violates the Equal Protection Clause of the Fourteenth Amendment.” It seems to me that to ask the question is to answer it. Rephrased it could be put like this, “Is it all right to deny equal protection and due process to a child because of illegitimacy?”

I find the facts necessary to understand this case are insufficiently stated in the majority opinion. Therefore, I will set out what I consider to be relevant facts. Mable Dawkins is the mother of the decedent, Steve Holmes, and the decedent and Hortense Boatman are the parents of Kristy Holmes. When Kristy Holmes was born, Hortense Boatman and Steve Holmes executed an affidavit which acknowledged that Steve Holmes was Kristy’s father. His name was also placed on the birth certificate. Kristy Holmes was nine months of age when her father died on May 17,1983. Mable Dawkins visited her granddaughter Kristy even after her son’s death.

Mable Dawkins filed a petition for appointment as administratrix of the estate of Steve Holmes on May 31,1983. No notice was given to either Kristy Holmes or Hortense Boatman. Hortense Boatman learned of the petition on February 7, 1986, and filed a request for notice. On March 6, 1986, she filed a petition for determination of heirship on behalf of her daughter Kristy.

The trial court found that Kristy was the daughter of the decedent, but nonetheless was not entitled to inherit from her father’s estate because her claim was not filed within 180 days of the opening of the estate as required by Ark. Code Ann. § 28-40-107 (1987).

No guardian or attorney ad litem was appointed for the nine month old daughter of the decedent and due to her age it was impossible for her to speak up for her rights without a duly authorized representative. Basic due process of law requires notice and an opportunity to be heard before any person can be deprived of life, liberty, or property. There was not even an attempt to meet such fundamental requirements in the present case. Even if Ark. Code Ann. § 28-9-209 (1987) is constitutional, the facts of the present case require a different result than that reached by the majority. The paternity had been established by the parents during the lifetime of the father of which the paternal grandmother was well aware.

The reasoning in Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979), and in Trimble v. Gordon, 430 U.S. 762 (1977), is still controlling. We held in Lucas that denial of an illegitimate child’s right to inherit from his father could not be justified on the basis of the compelling state interest in establishing certainty in the disposition of a decedent’s property. If prohibiting an illegitimate child from inheriting from his father’s estate is not a proper state interest, then certainly limiting the right of inheritance by illegitimate children cannot be justified on the same grounds. The legitimate interest in promoting orderly disposition of a decedent’s estate applies with equal force to a child born in or out of wedlock. There is no constitutional sanction for partial due process.

I see no valid purpose for continuing this dissent because the majority has cited most of the cases which I think establish the basis for declaring Ark. Code Ann. § 28-9-209 (1987) unconstitutional. As previously stated, the statute is discriminatory on its face and should be declared invalid.

Hickman and Hays, JJ., join this dissent.


author: Robert H. Dudley, Justice. David Newbern, Justice,

text:
    DARRAGH POULTRY & LIVESTOCK EQUIPMENT CO. v. PINEY CREEK SALES, INC.
    87-311
    743 S.W.2d 804
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      John C. Everett, for appellant.

      Young & Finley, by: James K. Young, for appellee.
   Robert H. Dudley, Justice.

The appellant and the appellee occupied adjacent spaces in a warehouse in Russellville. After a fire in the warehouse, the appellee sued the appellant and alleged that the fire was the result of the appellant negligently allowing an electric drill to run for an extended period of time. The appellee prayed for damages of $ 101,000.00. The appellant answered and later filed an offer of judgment in the amount of $9,292.18. See ARCP Rule 68. The appellee did not respond to the offer. The case was tried, and the jury returned a verdict for the appellant. The appellant then filed a motion asking for judgment for all costs incurred after the offer was made. See ARCP Rule 68. The trial court denied the motion, and the appellant contends that, as a matter of law, it is entitled to a judgment for all costs incurred after the offer. We affirm the trial court.

ARCP Rule 68 (emphasis added) provides:
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the service of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and judgment shall be entered. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment exclusive ofinterestfrom the date of offer finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.

In a case very similar to the one at bar, the Supreme Court of the United States held that a victorious defendant is not entitled to recover costs incurred after the making of the offer under Fed. R. Civ. P. 68, which is almost identical to ARCP Rule 68. Delta Air Lines, Inc. v. August, 450 U.S. 346 (1981). We decline to follow the reasoning expressed in Delta.

The author of the Note, Delta Air Lines, Inc. v. August: The Agony of Victory and the Thrill of Defeat, 35 Ark. L. Rev. 604 (1982), points out some of the flaws in the Delta Air Lines reasoning. For example, the author contends that the

interpretation of rule 68 in Delta undermines the spirit of the rule. Rule 68 was adopted to provide a means by which a defendant could compel the plaintiff realistically to reassess his claim, with a penalty of litigation costs on the defendant if the plaintiff recovered more than the offer. After Delta, the defendant must bear the costs not only for making an offer below the ultimate recovery by the plaintiff, but also for winning the lawsuit and being unable to persuade the trial judge to award costs to the winning defendant pursuant to rule 54(d). It has been said, with reference to the Federal Rules, that “construction . . . depends upon our basic attitude toward those Rules — whether we take their force to lie in their very words, treating them as talismanic formulas, or whether we believe they are to be applied as rational instruments for doing justice between man and man in cases coming before the federal courts.” Narrowing the field of vision by focusing its semantic microscope on the words “judgment finally obtained by the offeree,” the Court arrived at a result which ignored “the common sense maxim that the greater includes the lesser,” and which weakened the spirit of even-handedness formerly present in rule 68, whereby costs were assessed on the basis of a comparison of the offer with the result and not on the basis of whether the plaintiff won or lost the suit.

Id. at 625 (footnotes omitted). Additionally, the author points out that the Delta reasoning brings about absurd results:

[E]ven a “literal interpretation” is not unfettered by standards of reasonableness. Literalism must give way to a construction which will avoid absurdity or unreasonableness. This means that, where two or more constructions are possible, and one construction is absurd or unreasonable, a more reasonable construction ordinarily will be adopted. Delta held that a defendant can recover litigation costs if the defendant lost the suit, but not if he won the suit, a result seemingly absurd on its face.

Id. (footnote omitted).

Alaska and Nevada have expressed views opposite to those of the United States Supreme Court. In Wright v. Vickaryous, 611 P.2d 20, 23 (Alaska 1980), a case decided prior to Delta, the Supreme Court of Alaska held:

Wright contends that Civil Rule 68 does not apply since it operates only when the offeree obtains judgment in his favor. That interpretation would mean that when an offeree prevails, but his judgment does not exceed the offer, he will be penalized, but if he does not prevail at all no penalty will be imposed. We see nothing to recommend such a result, and thus reject the interpretation offered by Wright.

In Beattie v. Thomas, 99 Nev. 579, 588, 668 P.2d 268, 274 (1983) (footnote omitted), the Supreme Court of Nevada explicitly rejected Delta:

Appellant argues secondly that NRCP 68 does not apply where the jury gave its verdict for the defendant. He relies on Delta Air Lines, Inc. v. August, 450 U.S. 346, 101 S.Ct. 1146, 67 L.Ed.2d 286 (1981), in which the High Court, in 5-4 decision, held that the phrase “judgment finally obtained by the offense [sic]” as used in Federal Rule of Civil Procedure 68 does not encompass a judgment against the offeree as well as a judgment in favor of the offeree. We decline to follow the Delta Air Lines reasoning, not only because of the differences between NRCP 68 and FRCP 68, but because such reasoning leads to an anomalous result. Under the rule proposed by appellant and followed by the majority in Delta Air Lines, an offeree would be penalized for recovering a judgment less favorable than the offer, but would suffer no penalty if he did not recover any judgment whatsoever. As the Alaska Supreme Court held in Wright v. Vickaryous, 611 P.2d 20, 23 (Alaska 1980), “[w]e see nothing to recommend such a result, and thus reject the interpretation offered by [appellant].”

Likewise, we hold that the trial court had the authority to award “the costs incurred after the making of the offer.” However, the trial court in this case could award only such costs as are authorized by statute. In Grayson v. Arrington, 225 Ark. 922, 926, 286 S.W.2d 501, 503 (1956), we wrote:

The rule of the law appears to be well settled that costs are a creature of the statute and can only be taxed by statutory authority: “We have often held that the allowance of costs is purely statutory, since at common law neither party was entitled to recover his costs.” Arkansas State Game & Fish Comm. v. Kizer, 222 Ark. 673, 262 S.W.2d 265, 267, 39 A.L.R.2d 1372.

In this case the appellant seeks recovery for costs which are not authorized by statute, for example, costs of hotel rooms and meals, and, in doing so, argues that Rule 68 will have no real meaning unless we give the term “costs” a much broader meaning than we have in the past. We decline to overturn our holdings that in law cases courts can award only such costs as are authorized by statute.

We also feel that Rule 68 has real meaning. Under Rule 68 a trial judge has no discretion but must order the offeree to pay the authorized costs incurred after the making of a bona fide offer, if the judgment, exclusive of interest, is not more favorable than the offer. On the other hand, if no offer of judgment is made, or if one is made and the judgment exceeds the offer, the costs are paid under ARCP Rule 54(d), which gives the trial judge discretion in the awarding of authorized costs. That rule provides “cost shall be allowed of course to the prevailing party unless the court otherwise directs.”

Affirmed.

Hays, J., would remand for determination of reasonable “expenses” incurred after offer.

Newbern, J., concurs.

David Newbern, Justice,

concurring. I concur in the holding in this case because the word “costs” has a fixed meaning in Arkansas practice. Grayson v. Arrington, 225 Ark. 922, 926, 286 S.W.2d 501, 503 (1956).

This raises some doubt whether, in adopting Ark. R. Civ. P. 68 based on the parallel federal rule, the purpose of which was to encourage the early settlement of cases, we considered the question whether “costs” has the same meaning in the federal practice as in Arkansas practice. We will encourage our Committee on Rules of Pleading, Practice, and Procedure (Civil) to consider and advise us whether a change to the rule, perhaps substituting the word “expenses” for the word “costs,” may be advisable.


author: Robert H. Dudley, Justice.

text:
    W.N. “Bill” ROBBINS v. CITY OF DOVER, et al.
    87-343
    743 S.W.2d 807
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      Robert E. Irwin, for appellant.

      Bullock & McCormick, by: David H. McCormick, for appellee.
   Robert H. Dudley, Justice.

Appellant Bill Robbins was appointed Marshal of the City of Dover pursuant to an ordinance making the marshal’s office appointive rather than elective. See Ark. Code Ann. § 14-44-111 (1987) [Ark.Stat. Ann. § 19-1103.2 (Repl. 1980)]. He was later discharged by the Mayor, and the City Council failed to override the Mayor’s action by a two-thirds majority. The appellant contends he was wrongfully discharged. The trial court held that the marshal was an employee at will who could be discharged at will by the mayor, subject to an override by a two-thirds majority of the city council. The Court of Appeals certified the case to this court. We affirm the trial court.

Appellant argues that he was not subject to termination at will because of a written city personnel policy and the minutes of a city council meeting. In Gladden v. Arkansas Children’s Hosp., 292 Ark. 130, 728 S.W.2d 501 (1987), we wrote:

We do, however, believe that a modification of the at will rule is appropriate in two respects: where an employee relies upon a personnel manual that contains an express provision against termination except for cause he may not be arbitrarily discharged in violation of such a provision. Moreover, we reject as outmoded and untenable the premise announced in St. Louis Iron Mt. Ry. Co. v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897), that the at will rule applies even where the employment agreement contains a provision that the employee will not be discharged except for cause, unless it is for a definite term. With those two modifications we reaffirm the at will doctrine.
We have come to the conclusion that an implied provision against the right to discharge is not enough.

The written city personnel policy introduced by appellant provides that “[a]n employee who gives unsatisfactory service is subject to dismissal by the Mayor with the approval of the City Council.” That does not constitute an express provision against termination except for cause.

The minutes of a meeting of the city council likewise do not afford any relief to appellant. Two different versions of the minutes of the same council meeting were introduced, and both were signed by the recorder-treasurer. One version, which is certified as the true and correct copy, recites that a councilman stated a reprimand policy. It does not set out the policy, nor does it reflect adoption by the council. The other form of the minutes, which is not certified, recites that “[t]he City would amend it[s] personnel policy to accept reprimands, there will be a minimum of 3 reprimands and at that time a dismissal, this would be for all City employees.” Although three council members testified that the three reprimand policy was in effect at the time of appellant’s discharge, neither of the personnel policies which were introduced at trial contained the policy. The record simply does not establish that there was an express provision against termination except for cause, either in the personnel policy or in the minutes.

Even if the personnel policy provided for discharge only with cause or even if the minutes clearly reflected that the council voted for a policy of no discharge until after three reprimands, the appellant would not prevail in this case because state law provides that a city marshal may be discharged by the mayor, subject only to an override by a two-thirds vote of the city council. Ark. Code Ann. § 14-44-111 (1987) [Ark. Stat. Ann. § 19-1103.2 (Repl. 1980)]. The appellee has neither pleaded nor argued that the city should be estopped from applying the controlling state statute and therefore, we do not consider the issue. See Foote’s Dixie Dandy, Inc. v. McHenry, 270 Ark. 816, 607 S.W.2d 323 (1980). See also, Annot. 21 A.L.R.4th 565 (1983). Therefore, the appellant was an employee at will and his discharge was not wrongful.

Appellant next argues that the city council later overrode the mayor’s action. The argument is without merit. The city council refused to override the discharge, and the mayor appointed a temporary marshal. The city later took applications for the job, and appellant, along with others, submitted his application. He was ultimately re-hired to fill the vacancy. This was not a statutory override.

Affirmed.

Glaze, J., concurs.


author: Steele Hays, Justice.

text:
    Zareepha FORD v. CITY OF HOT SPRINGS
    CR 87-212
    743 S.W.2d 394
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      Robert H. Crank, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant, Zareepha Ford, was convicted in Hot Springs Municipal Court of three offenses under the Hot Springs Animal Control Code. Ms. Ford brings this appeal contending the provisions under which she was prosecuted are invalid as they exceed the city’s statutory authority to fix the penalty for offenses defined and punishable by state law.

In response to neighbors’ complaints, Ms. Ford was visited by Don Floyd, an employee of the Hot Springs Animal Control Agency. He found that Ms. Ford housed at least forty cats and dogs in her home. He testified that newspapers soiled with feces and urine were strewn throughout the rooms of the house and on the porch. The odor was overwhelming and the noise from the animals was continuous. There were particles of food deposited throughout the house that were attracting flies and rodents; several dogs were confined in one room with no ventilation; furniture had been soiled by the animals and the filth had not been cleaned up in some time. Floyd also noted that one young kitten was malnurished and another had an injured eye that had not been tended to.

Ms. Ford was charged with forty counts of offensive odors, fifty-three counts of disturbing noises and two counts of cruelty to animals. She was found guilty of one count of cruelty to animals, one count of offensive odors and one count of disturbing noises. She was fined $100 on each count.

The counts against Ms. Ford on offensive odors and disturbing noises were brought under Section 6-16(5) of the Hot Springs Code which relates to minimum standards for the maintenance of private kennels. The count on cruelty to animals, which is the conviction Ms. Ford objects to, was based on Section 6-9 of the ordinance which provides:

(a) It shall be unlawful for any person to:
* * *
(6) allow an animal to be kept in unsanitary conditions;

For a violation of the Code it is provided under Section 6-27:

Any person violating any provision of this code shall be guilty of a misdemeanor upon conviction and shall be punished by a fine of not less than $25.00 or no more than $ 100.00, and if such violation be continuing, each violation shall be a separate offense.

The legislature has enacted a law on cruelty to animals, Ark. Code Ann. § 5-62-101 [Ark. Stat. Ann. § 41-2918 (Repl. 1980)], which provides:

(a) A person commits the offense of cruelty to animals if, except as authorized by law, he knowingly:
* * *
(2) Subjects any animal to cruel mistreatment;
(3) Subjects any animal in his custody to cruel neglect: . . .
(b) Cruelty to animals is a Class A misdemeanor [punishable by a sentence of imprisonment not to exceed one year, or a fine not to exceed $1,000, Ark. Code Ann. § 5-4-401 (Supp. 1987).]

Ark. Code Ann. §§ 14-55-501, 502 (1987) [Ark. Stat. Ann. §§ 19-2410 to 2411 (Repl. 1980)] provide that all cities and incorporated towns are authorized to prohibit and punish any act which the laws of this State make a misdemeanor, and to prescribe penalties for all offenses in violating any such ordinance, provided the penalties are neither greater than nor less than those penalties prescribed for similar offenses by state statutes. Thus, we stated in Wright, Mayor v. Burton, Judge, 279 Ark. 1, 648 S.W.2d 794 (1983), under those two statutes the penalties fixed by a city must fall within the state minimums and máximums.

In Wright, Mayor v. Burton, Judge, 279 Ark. 1, 648 S.W.2d 794 (1983), certain ordinances adopted by the City of Conway were in question because they enumerated offenses that were also offenses under state law, but provided different penalties than those provided for by the state. Specifically we found the statutes did not observe the permissible statutory limits. The effect of the ordinances was to permit anyone who committed one of the offenses to avoid any possibility of imprisonment by merely paying a fine, while under the statute, the offender was subjected not only to a fine but to possible imprisonment as well.

The ordinance in this case presents a similar situation. The state cruelty to animal statute, which prohibits neglect and mistreatment of animals, is clearly a similar offense to the Hot Springs ordinance prohibiting an animal from being kept in unsanitary conditions. The ordinance, however, only provides for a fine, while the statute subjects an offender to the possibility of both a fine and imprisonment. The ordinance section under which Ms. Ford was convicted is therefore invalid and the conviction on that count must be reversed. Wright, Mayor v. Burton, Judge, 279 Ark. 1, 648 S.W.2d 794 (1983).

Appellant has raised another point which we find without merit concerning the state’s burden of proof. After both sides had rested, the court made several remarks, including the following: “The Court feels that there has been a — substantial—beyond a preponderance on the noise, on the odors, and on the unsanitary condition under 6-9 Subsection 6, That will be the finding of the court.” The appellant points out that as this is a criminal offense, the state must establish guilt beyond a reasonable doubt. Ms. Ford contends the Court applied the incorrect standard of proof to determine her guilt. We disagree.

The above comment by the court, when read in the context of the proceedings, makes it clear the correct standard of proof was applied to all counts and the remark was simply inadvertent. At the close of the presentation of the evidence the defense asked the court to reconsider its motion for a directed verdict on the two counts of cruelty. The Court responded, “Let me ask you this. Are you conceding that the odors and noise count has been proven beyond a reasonable doubt?”

After closing arguments, the court, when finding Ms. Ford not guilty on one count of cruelty involving the two kittens, stated:

Let me stop you just a minute. And I don’t mean to be rude, but I think I have just made up my mind. The Court is going to find on the cruelty, one violation. And that is of the unsanitary condition. I am not — let me say this, if it were a civil case, I would find for the state or the plaintiff on the two cats’ situation. There is apparently no doubt that the one cat had a problem with an eye and the other one with its physical condition. But there is a question in my — since the criminal standard is beyond reasonable doubt.

The court continued, addressing again the offensive odors and disturbing noises:

Yet, from the pictures, from the testimony here, the court can find nothing but an unsanitary condition inside and out. And I will say this, I have never seen pictures where I can almost smell an odor. Now that’s the way the court feels about it. Uh — and the noise, the court feels that there has been a substantial — beyond a preponderance on the noise, on the odors and on the unsanitary conditions under 6-9 Subsection 6. That will be the finding of the court — Judgment of the Court.

The judgment is affirmed in part and reversed in part as is consistent with this opinion.


text:
    Jerry L. HONEYCUTT v. Jill J. WALDEN
    87-254
    743 S.W.2d 809
    Supreme Court of Arkansas
    Opinion delivered February 1, 1988

      Compton, Prewett, Thomas & Hickey, P.A., for appellant.

      Shackleford, Shackleford & Phillips, P.A., for appellee.
   Steele Hays, Justice.

This is a tort case, giving this court jurisdiction under Ark. Sup. Ct. R. 29(l)(o). Jill Walden sued Jerry Honeycutt for injuries sustained in a motor vehicle collision with Honeycutt. The case was tried to a jury and a verdict for the plaintiff was returned for $32,500 in compensatory damages and $12,000 in punitive damages.

Jerry Honeycutt alleges three points for reversal: it was error to submit the issue of punitive damages to the jury; it was error to include element No. 2 of AMI 2201 (the present value of any loss of ability to earn in the future); and it was error to include element No. 5 of AMI 2201 (the present value of expenses reasonably certain to be required in the future). We find that the jury was properly instructed and, accordingly, we affirm the judgment.

I

Jerry Honeycutt argues that punitive damages are not favored in the law and are to be granted only where the defendant’s actions are malicious or oppressive. Diamond Shamrock Corp. v. Phillips, 256 Ark. 923, 511 S.W.2d 164 (1974). He submits that negligence alone, no matter how gross, will not sustain an award of punitive damages [St. Louis Iron Mountain and Southern Railroad Co. v. Dysart, 89 Ark. 261, 116 S.W. 24 (1909)], unless the defendant’s conduct is characterized by willfulness, wantonness or a conscious indifference to the consequences. St. Louis Southwest Railroad Co. v. Evans, 104 Ark. 89, 148 S.W. 264 (1912).

Honeycutt points out that there was no proof of excessive speed on his part, that he stopped the first passing motorist to call the police and, while tested for intoxication, he registered only .08 on the breathalyzer. In short, he insists that substantial evidence to support the verdict is lacking. Kroger Co. v. Standard, 283 Ark. 44, 670 S.W.2d 803 (1984).

However, the arresting officer testified concerning sobriety tests he administered to Honeycutt following the collision. He described Honeycutt as “very unstable,” that he “swayed back and forth or to each side,” that he had trouble understanding the directions being given to him and his speech was “very slurred.” The officer said Honeycutt missed his nose entirely in attempting the finger to nose test and was unable to count to ten without jumping from “one to four, two to five, and things of this nature.” There was other proof on the issue which, viewed in its entirety and from its strongest probative force [Shaver v. Vowell, 288 Ark. 558, 707 S.W.2d 772 (1986)] readily sustains the verdict for punitive damages. We have held any number of times that malice may be inferred from the operation of a motor vehicle, a potentially lethal machine, by one whose judgment, responses and coordination are impaired by alcohol. Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W.2d 96 (1962); Hall v. Young, 218 Ark. 348, 236 S.W.2d 431 (1951); Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293 (1948).

II

Secondly, Honeycutt contends there was no proof from which the jury could infer that Jill Walden had a loss of ability to earn in the future. Appellant maintains that the case of Duncan v. Foster, 271 Ark. 591, 609 S.W.2d 62 (1980) is controlling. We disagree. William Duncan sued Roger Foster for personal injuries which Duncan sustained in a motor vehicle collision with Foster. The trial court, sitting as a jury, awarded Duncan damages of $20,000, which it then reduced by 30 % on the basis of Duncan’s comparative fault. On appeal Duncan argued that the court erred in refusing to award damages for loss of future earnings. On review, this court noted that there was no specific proof that Duncan’s earning capacity would be diminished, nor any evidence that he had, in fact, experienced reduced earnings. The only proof seems to have been equivocal testimony from a physician that some people with a comparable injury could work, whereas some could not, depending on one’s tolerance of pain. We held the findings of the trial court were not clearly erroneous, but that is not to say that had damages for loss of future earnings been awarded we would have found error. The cases are subject to different standards on review, the issue here being whether there was proof to sustain the award, examined in a light most favorable to the appellee, who prevailed below.

An award of damages for loss of earning capacity is not dependent on specific evidence thereof. Coleman v. Cathey, 263 Ark. 450, 565 S.W.2d 426 (1978);Haney v. Noble, 250 Ark. 557, 466 S.W.2d 467 (1971). A serious or permanent injury may sustain the submission of the issue of loss of earning capacity to the jury. Missouri Pacific Railroad Co. v. Miller, 227 Ark. 351, 299 S.W.2d 41 (1957); Coleman v. Cathey, supra. Ms. Walden’s proof included testimony from an orthopedist that she had sustained a permanent disability of 10% to the body as a whole, restricting her ability to work with her arms overhead or stretched out ahead of her. An ear, nose and throat specialist testified to permanent nerve damage causing drooling and slurring of words, that neck and back problems interfered with her ability to lift, which her work required. We think the proof justified the submission of the issue to the jury.

Ill

Jerry Honeycutt insists there was no proof that medical expenses were reasonably certain to be incurred in the future and it was error to instruct the jury on that element of damage.

The recovery of future medical expenses does not require the same certainty as the recovery of past medical expenses. Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983). Ms. Walden points to proof that she was undergoing physiotherapy three times a week at a cost of $106 per session, such treatments to continue indefinitely, and to the testimony of Dr. Pillsbury that he would continue to see Ms. Walden every three or four months to examine the movement of her tongue and mouth and the numbness in her face, with a charge of $20 for each appointment. We have held that future medical expenses involve consideration of permanency of the injuries, whether the individual is still under treatment, is still receiving medication, or still experiencing pain. All of these factors exist to some degree in the proof and we cannot say the trial court erred in submitting the question of future medical expenses to the jury. William v. Gates, 275 Ark. 381, 630 S.W.2d 34 (1982); Bilford v. Humphrey, 244 Ark. 211, 424 S.W.2d 526 (1968); Vogler v. O’Neal, 226 Ark. 1007, 295 S.W.2d 629 (1957); Arkansas Power & Light Co. v. Heyligers, 188 Ark. 815, 67 S.W.2d 1021 (1934).

Affirmed.