text:
    Mrs. Mary Ruth DAVIS, Mother and Administratrix of the Estate of Richard Donald MONREAL, Deceased v. LINGL CORPORATION, F. S. SPERRY COMPANY, INC. and WHEELER BRICK COMPANY
    82-105
    641 S.W.2d 27
    Supreme Court of Arkansas
    Opinion delivered November 8, 1982

      Frank Snellgrove of Frierson, Walker, Snellgrove b Laser, and /. B. Cobb and Ann Abernathy of Law Firm of J. B. Cobb, Memphis, Tenn., for appellant.

      Reid, Burge b Prevallet, for appellee Lingl Corporation.

      Penix, Penix, Mixon b Lusby, for appellee F. S. Sperry Company.

      Barrett, Wheatley, Smith b Deacon, for appellee Wheeler Brick Company.
   Frank Holt, Justice.

This appeal results from granting summary judgment to appellees. Appellee Wheeler Brick Company contracted with appellee Lingl Corporation to construct a brick kiln on Wheeler’s premises. Lingl subcontracted with appellee F. S. Sperry Company, Inc., to construct the masonry aspect of the project. Sperry, as general contractor, in turn subcontracted the work to PrePad, Inc. Pre-Pad is not a party to this action.

At approximately 10 a.m., July 28, 1978, Pre-Pad’s employee, Richard Monreal, was found dead at the foot of a twelve foot wooden stepladder. Though no one observed the fall, it appears that Monreal, a welder, had been standing on a ladder welding a guardrail overhead when he fell to his death. Appellant Mary Ruth Davis, decedent’s mother, instituted a negligence action in circuit court against appellees, seeking damages for her son’s death which she alleges was the proximate result of the individual acts of negligence by each of the appellees. The trial court granted summary judgment in favor of each of them. We affirm.

Appellant contends for reversal that the court erred in granting summary j udgment inasmuch as a genuine issue of material fact existed as to whether each of the appellees had the right to control activities on the construction site; and, having that right of control, each of the appellees had a duty to use reasonable care to prevent injury to workmen on the construction site.

A summary judgment is appropriate only where the pleadings, depositions and answers to interrogatories, together with the affidavits, show there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law. Rule 56, ARCP; Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982). In Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969), we enunciated the duty owed by general contractors and owners of premises.

It appears to be the general rule that the responsibilities of the prime contractor to employees of the subcontractor on the job are comparable to the duties of the owner of the premises. This is a duty to exercise ordinary care and to warn in the event there are any unusually hazardous conditions existing which might affect the welfare of the employees. The recognized exception occurs if the prime contractor has undertaken to perform certain duties or activities and negligently fails to perform them thereafter or perform[s] them in a negligent manner ....

To the same effect is Jackson v. Petit Jean Electric Co-Op, 270 Ark. 506, 606 S.W.2d 66 (1980). There we reiterated the general rule that an employer of an independent contractor is not responsible for that contractor’s negligence except that the employer has a duty to warn the contractor of any latent dangers or unusually hazardous conditions.

It is undisputed that Monreal was an employee of PrePad, an independent contractor. He was standing on a stepladder welding on a guardrail, which was included in the specifications, when he fell and was fatally injured. There was no evidence of an unusually hazardous condition about the premises. Wheeler had scaffolds available on the premises that the deceased could have used instead of the stepladder. Wheeler inspected the work periodically only to insure that it was in accordance with specifications. Lingl, which subcontracted to Sperry, had an employee inspect the project occasionally to insure that the work was in accordance with specifications. Sperry, which subcontracted to Pre-Pad, had no one at the job site. None of the appellees retained the right or undertook to control or supervise the manner in which Monreal, Pre-Pad’s employee, performed his work. That was Pre-Pad’s right and duty.

Since Monreal’s death was caused by the manner in which he performed his work, and none of the appellees had retained the right or undertaken to control or supervise the manner in which the work was performed, no genuine issue of material fact existed as to any independent act or negligence on the part of any of the appellees. The trial court correctly granted their motions for summary judgment.

Affirmed.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    G. L. TINSLEY et al v. CROSS DEVELOPMENT COMPANY et al
    82-80
    642 S.W.2d 286
    Supreme Court of Arkansas
    Opinion delivered November 8, 1982
    [Rehearing denied December 20, 1982.]

      Worth Camp, Jr. of Law Office of Worth Camp, and Chuck L. Honey of Honey & Rodgers, for appellants.

      Robert C. Compton of Brown, Compton ir Prewett, Ltd., for appellees.
   Darrell Hickman, Justice.

The only question of concern to us in this case is whether the trial court was wrong in denying a motion for a new trial. The law requires that if we find any substantial evidence to support the verdict of the jury, the trial court’s decision will be affirmed. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). We find substantial evidence and affirm the trial court’s decision.

This lawsuit arose over a fire that occurred in a 55,000 barrel crude oil storage tank owned by the appellee, Cross Development Company of Smackover, Arkansas. The tank was located approximately three miles from Smackover. It was struck by lightning and caught fire on Sunday evening, July 7, 1974. The tank was over fifty years old and its roof was wooden and sheathed with steel. The lightning cut the roof, igniting either the wooden timbers supporting the roof, or the vapor inside the tank. A nearby resident saw the lightning strike and called the Smackover Fire Department and Mr. Nimrod Price, the president of Cross Development Company. The Smackover Fire Department, which is entirely volunteer, arrived at the fire in about thirty minutes. For assistance, someone called the El Dorado Fire Department, which is located about ten miles away, and Mr. J. L. Turner, who is the retired fire chief for American Oil Company which once had a plant in the area.

The fire got out of control, burning Sunday night and all day Monday. On Monday, the oil boiled over twice. The second time it erupted, a burning, lava-like substance flowed along the contour of the land. It is known by those familiar with such tanks that a boil over is inevitable when the fire gets out of control; the bottom of such tanks contains a foot or so of water that eventually turns to steam and pushes out the extremely hot oil. Some woods, a home, and several buildings were totally destroyed by fire.

The appellants were the owners of a feed mill and welding shop building that were destroyed. They sued Cross Development Company for $103,438 in compensatory and punitive damages, alleging that the company was negligent in failing to comply with the Arkansas Fire Code, failing to have adequate fire fighting equipment available, and failing to maintain an adequate dike or fire wall around the tank that would contain a boil over. The jury found for Cross Development Company on all issues.

The appellants’ motion for a new trial simply stated that the verdict should be set aside because it is “contrary to the preponderance of the evidence and contrary to the law.” After considering the motion, the court, in a lengthy order, found that the verdict would, indeed, be clearly against the preponderance of the evidence except that the jury could have concluded from the evidence presented that the Smack-over Fire Department’s actions were an independent intervening cause of the damages to the appellants and required safety measures would have been fruitless.

The trial judge, in his order, cited the evidence of the appellees’ negligence: That the company failed to comply with the Arkansas Fire Prevention Code since the tank did not have a floating roof and the surrounding fire wall did not include a flareback section to turn back a boil over, as the code requires; that the company had none of the customary fire fighting equipment; and, that no precautions were taken against lightning.

However, the trial judge also noted the evidence of an independent intervening cause of the damage. The trial judge referred to essentially undisputed testimony that the fire could have been put out in the first few hours if the Smackover Fire Department had applied foam and otherwise properly treated the blaze. There was testimony that the Smackover Fire Department refused to allow the El Dorado Fire Department to use its foam equipment and that Mr. J. L. Turner’s advice and assistance were rejected shortly after the fire started. Turner had testified that he could have extinguished the fire with two portable foam fire extinguishers if he had had help. He was told he was interfering and he left. The El Dorado Fire Department’s fire chief and one of its firemen said the fire could have and should have been quickly extinguished.

The trial court also noted that there was testimony that the lack of a flareback section on the dike would not have contained the boil over since one witness said that the oil poured out from the top of the tank and over the outer walls of the fire wall like an umbrella. This witness saw the second boil over.

On review, we do not decide the credibility of the witnesses; we only examine the record to see if there is substantial evidence to support the verdict. Lindsey v. Watts, 273 Ark. 478, 621 S.W.2d 679 (1981); Miller v. Tipton, 272 Ark. 1, 611 S.W.2d 764 (1981). The jury was instructed on independent intervening cause without objection by the appellants. Furthermore, the appellants did not state in the motion for a new trial, nor argue in their brief, the court was in error in giving the instruction. The jury was allowed to consider whether there was an independent intervening cause for the damages suffered by the appellants. The jury could have conceivably found that the actions of the Smackover Fire Department were an intervening proximate cause of the damage. This, coupled with the fact that there was testimony that a higher dike or fire wall would not have made any difference to the extent of damage, was sufficient evidence to support the jury’s verdict. Although there was testimony that the fire wall was not of the height required by the code, the jury could have found it to be adequate since a survey introduced by the appellants noted that the fire wall or dike would contain a 55,000 gallon spill.

We have serious doubts as to whether the court should have given the jury the instruction on independent intervening cause in this case. See Larson v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). But the appellants’ failure to object to this instruction is fatal to its case on appeal. We have held that the failure to object to an instruction, even if it erroneously states the applicable law, is a waiver of any error committed by giving it. Willis v. Elledge, 242 Ark. 305, 413 S.W.2d 636 (1967); Turkey Express, Inc. v. Skelton Motors, Inc., 246 Ark. 739, 439 S.W.2d 923 (1969). The appellant’s action in permitting this issue to go to the jury without objection precludes consideration of that issue on appeal.

The trial court, in its order denying a new trial, observed that the appellants did not plead or prove the facts necessary to raise the issue of collateral estoppel and thus take advantage of a prior judgment against the Cross Development Company in another lawsuit involving the same fire.

The appellants argue that the court was wrong in not declaring crude petroleum to be an inherently dangerous product when stored so that the law of strict liability would apply. There was no evidence presented by which the court could conclude that crude petroleum when properly stored is an inherently dangerous product. The court refused to instruct the jury on punitive damages and granted appellees’ motion for a directed verdict on that issue. Since no compensatory damages were awarded, and some are necessary to support a verdict for punitive damages, the court did not commit reversible error by granting the motion. Winkle v. Grand National Bank, 267 Ark. 123, 601 S.W.2d 559 (1980).

The appellants did object to the court’s instruction that a person is not liable for damages caused solely by an act of God. The instruction directs, however, that if the act of God concurs with another’s negligence to cause damages, the negligent person is not excused from liability. The instruction followed AMI 615 and was proper under the facts of this case.

Affirmed.


author: John I. Purtle, Justice,

text:
    COKING COAL, INC.; ST. PAUL FIRE & MARINE INSURANCE COMPANY v. ARKOMA COAL CORPORATION
    82-253
    641 S.W.2d 25
    Supreme Court of Arkansas
    Opinion delivered November 8, 1982

      George Pike, Jr. and Claiborne C. Crews of Friday, Eldredge & Clark, for appellant.
    /. Michael Shaw, for appellee.
   John I. Purtle, Justice,

dissenting. I dissent from the majority which denied without opinion appellants’ appeal and motion for supersedeas on the judgment. I would grant the supersedeas pending the hearing of the case on its merits by this court.

On October 20,1978, Coking Coal, Inc. filed action, No. E 78-181, against Arkoma Coal Corporation in the Chancery Court of Johnson County, Arkansas. St. Paul Fire & Marine Insurance Company executed a bond on behalf of Coking which obtained a temporary restraining order. This bond was in the amount of $10,000 conditioned upon payment of damages which Arkoma might sustain as a result of the temporary restraining order. St. Paul filed a second bond on December 15, 1978, in Case No. E 78-181 which bond was in the amount of $50,000 conditioned that it would pay all damages and costs which might be adjudged against Coking arising out of the action therein pending.

July 14,1982, the trial court entered a judgment against Coking in the above-styled casein the amount of $274,891.98. Pertinent parts of the judgment state:

By virtue of the bond in the amount of Fifty Thousand Dollars ($50,000) dated December 15, 1978, St. Paul Fire & Marine Insurance Company is jointly and severally liable with Coking Coal, Inc. for the damages sustained by Arkoma Coal Corporation as a result of Coking Coal, Inc.’s breach of contract, said liability of St. Paul Fire & Marine Insurance Company being limited to the sum and amount of Fifty Thousand Dollars ($50,000.00).
The Temporary Restraining Order entered herein against Arkoma Coal Corporation on October 24,1978 and subsequently made permanent as reflected by the Court’s docket entry of November 14,1978, was wrongfully issued. The Restraining Order should, therefore, be dissolved. As a result of the wrongful issuance of the Restraining Order, the Defendant, Arkoma Coal Corporation, has sustained damages in the amount of Three Thousand Six Hundred Fifty-six and 76/100 Dollars ($3,656.76).
IT IS, THEREFORE, BY THE COURT, CONSIDERED, ORDERED, ADJUDGED AND DECREED . . . that Arkoma Coal Corporation be granted judgment against Coking Coal, Inc. in the amount of Two Hundred Seventy-four Thousand Eight Hundred Ninety-one and 98/100 Dollars ($274,891.98), plus costs. Coking Coal, Inc. and St. Paul Fire and Marine Insurance Company are jointly and severally liable for Fifty-Three Thousand Six Hundred Fifty-six and 76/100 Dollars ($53,656.76) of this Judgment and Coking Coal, Inc. is solely liable for the balance . . .

St. Paul Fire & Marine Insurance Company attempted to file a supersedeas bond for the amount of the judgment against it and Coking jointly and severally. The trial court rejected this bond because it was less than the total judgment. The matter was brought here on expedited appeal and pursuant to a motion for supersedeas pending appeal of the case on its merits.

Article 7 § 4, Constitution of Arkansas, grants this court authority to issue supersedeas orders. Williams v. Buchanan, 84 Ark. 404, 106 S.W. 202 (1907). When the justice of the case requires it, this court will issue a writ of supersedeas to preserve the status quo pending an appeal on the merits. Nashville Lumber Co. v. Corbell, 84 Ark. 596, 106 S.W. 677 (1907). The execution of a bond renders the guarantor a party to the proceedings. Judd v. Wilson, 182 Ark. 729, 32 S.W.2d 614 (1930). In Judd we stated:

By executing the appeal bond, appellant made himself a party to the proceeding and was therefore constructively present at every step of the litigation, and must be deemed to have had notice of all the orders made and must be held to have assented to and have assumed all the obligations imposed by law upon a party signing as surety in such cases, one such was, as provided by § 6531 of the Digest, that where on the appeal the judgment should be against his principal, judgment also should be rendered against him as the surety on the appeal bond. The undertaking on the part of the surety was a continuing obligation extending throughout the entire process of the litigation, his liability becoming consummate upon final decision against his principal.

The Judd opinion went on to state that such bonds are usually considered to hold for the payment of the judgment, if affirmed.

In the case of Goodin v. Goodin, 240 Ark. 541, 400 S.W.2d 665 (1966), this court stated:

Ordinarily, a writ of supersedeas is obtainable as a matter of course with respect to a judgment for damages in a contract or tort action. In that situation the appellee is adequately protected by a supersedeas bond guaranteeing that his judgment, if it is affirmed, will be paid in full, with interest and court costs.

In the case of Aeschlimann v. Presbyterian Hospital, 165 N.Y. 296, 59 N.E. 148 (1901), the court stated:

It seems to be well established, as a general rule, that a surety may defend an action against his principal, may set up any legal or equitable defense which would have availed to the former, and may establish it by proof... We are aware of no principle of law which would justify us in holding that the sureties upon such a bond were bound by an exaggerated and false claim, and in an action to which they were parties were debarred from showing the truth in regard to it, although their principals did not see fit to defend. Such a doctrine would open the door for fraud and collusion between contractors and subcontractors, by which sureties might be made liable for a claim which did not exist. We think no such principle can be sustained.

From the above citations it is obvious that the appellant or petitioner in this case is a party to the action and may defend upon any grounds which his principal might have defended. This, of course, includes an appeal.

The appellee relies upon the case of Rudolph v. Cassidy, 225 Ark. 951, 286 S.W.2d 489 (1956). In Rudolph the plaintiff had obtained a judgment in the sum of $30,000. The defendant/appellant attempted to supersede $25,000 of this judgment. The $25,000 represented the amount of liability insurance which she had. It seems to me the two cases are quite different inasmuch as in Rudolph there was an attempt to supersede only a part of the judgment. In the case before us the attempt is to supersede all of the judgment rendered against St. Paul. In Rudolph we took notice of the fact that the carrier was not a party to the litigation. That is not the case before us because the judgment is rendered jointly against St. Paul and Coking. Even so, in Rudolph we stated:

If the insurance carrier were a party to this suit and seeking to make a bond only for the amount for which it could be held liable under the terms of its policy there might be good grounds for permitting it to do so, but the insurance company is not a party.

Therefore, I think the cases are readily distinguishable.

It seems to me that we are dealing with two separate judgments included in one document. It is quite clear that the j udgment against St. Paul is a definite and fixed amount and is separable from the balance of the judgment. Therefore, justice and public policy demand that St. Paul be given its day in court in order to determine whether it is liable on the bonds it executed in this case.

Hays, J., joins in this dissent.


author: Robert H. Dudley, Justice.

text:
    Lynn STAGGS v. James Larrell STAGGS, David Lynn STAGGS and Phillip Lee STAGGS
    82-106
    641 S.W.2d 29
    Supreme Court of Arkansas
    Opinion delivered November 8, 1982

      Jon R. Sanford of Sanford, Pate ér Marshewski, for appellant.

      William R. Bullock of Bullock, Hardin & McCormick, and Bob Scott, for appellees.
   Robert H. Dudley, Justice.

Mamie Staggs devised a life estate in real estate to her son, appellant James Lynn Staggs, with the remainder to appellees, James Larrell Staggs, David Lynn Staggs and Phillip Staggs. Appellant sought a partition of the lands or a commutation of his life estate to a sum certain in money. The trial court granted appellees’ motion for summary judgment. We affirm. Jurisdiction is in this Court within the purview of Rule 29 (1) (a) because the case requires the interpretation of a statute and the construction of the Constitution of Arkansas.

Under Ark. Stat. Ann. § 34-1801 (Supp. 1981) one who holds a life estate in land by virtue of dower or curtesy may petition to have it partitioned or commuted, or both; and, unless great prejudice is shown to the other owners, the petition is granted. Gibson v. Gibson, 264 Ark. 418, 572 S.W.2d 146 (1978). However, under the same statute, one who acquires a life estate by will or by deed does not have the same right of partition or commutation. Bowman v. Phillips, 260 Ark. 496, 542 S.W.2d 740 (1976).

Appellant contends this dichotomy denies the owner of a life estate created by will or deed the equal protection of and equal rights under the law as guaranteed by Article II, §§ 3 and 18 of the Constitution of Arkansas and under similar provisions of the Constitution of the United States. He argues that this distinction serves to discriminate in an invidious and irrational manner.

While the possessors of the two types of life estates hold identical interests, the life estates can be fairly and rationally distinguished on the basis of their origin. A life estate created by deed is the result of an intentional act of the grantor to accomplish some purpose; for example, to impose spendthrift protection against a life tenant’s squandering of his estate. Similarly, a testamentary life estate is intentionally created by the testator. Separate and distinct is the dower or curtesy life estate which is an estate created by operation of law.

A statute which provides a cause of action for partition or commutation of a life estate created by will or deed would serve to thwart the intent of the testator or grantor. However, where the life estate is created by operation of law, the statutory cause of action for partition or commutation by a life tenant does not contravene an expressed intent. The distinction is fair and rational. Ark. Stat. Ann. § 34-1801 (Supp. 1981), as applied in this case, is not violative of Article II, §§ 3 and 18 of the Constitution of Arkansas, nor is it contrary to similar provisions of the Constitution of the United States.

Affirmed.


author: Steele Hays, Justice. Robert H. Dudley, Justice,

text:
    John H. RATTERREE v. Lloyd E. WHITE
    82-89
    642 S.W.2d 288
    Supreme Court of Arkansas
    Opinion delivered November 8, 1982
    [Rehearing denied December 20, 1982.]

      Roy R. Gean, III of Gean, Gean ér Gean, for appellant.

      Daily, West, Core, Coffman ir Canfield, by: Michael C. Carter and Wyman R. Wade, Jr., for appellee.
   Steele Hays, Justice.

In August, 1980, Mrs. Pauline White Ratterree was found to be incompetent and City National Bank of Fort Smith was appointed guardian of her estate. Her husband, John H. Ratterree, appellant, was appointed guardian of the person. Mrs. Ratterree’s son by a former marriage, Lloyd White, appellee, petitioned to intervene and permission was granted.

After a hearing the probate judge granted White’s petition that John Ratterree deliver to the court the tax returns of Mrs. Ratterree’s, which were their joint returns, for three years preceding the guardianship. The bank and John Ratterree were ordered to make a complete inventory of the furnishings of Mrs. Ratterree’s home and to show entries and contents of a bank lock box in Mr. Ratterree’s name but thought to contain property of Mrs. Ratterree.

John Ratterree claims on appeal the Probate Court had no jurisdiction to order the delivery of tax returns for years before the guardianship was created and asserts it was error to order the delivery of the returns and the inventory of the furnishings and lock box. We find no error.

I.

Notwithstanding a prolonged argument, appellant cites nothing to support the proposition that Probate Courts are powerless to order a guardian of the person to surrender the tax returns of an incompetent ward over to the court for inspection by the guardian of the estate, as well as other parties to the litigation. Because the returns are for years preceding the guardianship, appellant insists he should not have to deliver “his” returns, without some showing of fraud or wrongdoing, simply to satisfy the curiosity of appellee. But the fact is the returns are also the property of the ward and they are, perforce, a useful source of information to the court and to the guardian in marshalling the estate. We note that even before their delivery had been ordered by the court, the bank had sought, without success, to obtain these documents from Mr. Ratterree.

Article 7, Section 34 of the Constitution of Arkansas gives Probate Courts exclusive, original jurisdiction over guardians and persons of unsound mind and their estates. In furtherance of that provision the legislature has imposed on guardians of the estate the duty to exercise due care in the protection and preservation of the property of an incompetent [Ark. Stat. Ann. § 57-625 (Repl. 1971)] and the duty to take possession of all the ward’s real and personal property and of “rents, incomes, issue and profits therefrom, whether accruing before or after his appointment. . . ” . [Ark. Stat. Ann. § 57-626 (Repl. 1971)]. We believe those duties are sufficient to uphold the power of the Probate Court, in its discretion, to order the returns to be available in this case.

II.

In the alternative, Ratterree next argues that even if the court has jurisdiction, it was error for the Probate Court to make the tax returns available to White. He argues that good cause must be shown before one party must produce his tax returns for the inspection of another and that appellee White is without standing to request the tax returns. But White was permitted to intervene in the proceedings and no appeal has been taken from that order. On that basis, we disagree with the assertion that he is without standing in this case.

Appellant cites cases holding that a party seeking the production of tax returns, as opposed to other documents, must first show good cause, which, he says, White has failed to do. The principle itself is sound enough, but the argument ignores two important distinctions: one, White has a clear interest in preserving the estate of his mother, for her sake as well as his own, and two, the returns are not simply “appellant’s tax returns”, but are at once the returns of the incompetent ward as well.

The whole question of “good cause” for discovery rests within the sound discretion of the trial court. Reed v. Baker, 254 Ark. 631, 495 S.W.2d 849 (1973); Rickett v. Hayes, 251 Ark. 395, 473 S.W.2d 446 (1971). We find no abuse of discretion by the trial court in ordering the inspection of these tax returns.

III.

The final argument is that the court was wrong in ordering an inventory of the household furnishings of the Ratterree’s homeplace and in ordering an inventory of appellant’s safety deposit box, with the dates of entry shown. What possible benefit will be gained from knowing when Mr. Ratterree entered the lock box we cannot say, but issues of evidence and its discovery are better left to the trial courts and we are not willing to disturb an order merely because it may prove to be of no consequence.

As to the box itself, the testimony was that it originally belonged to Mrs. Ratterree and contained papers of her as well as Mr. White’s, but that Mr. Ratterree changed it to his name and to another location, which he seemed reluctant to reveal even to the trial judge. We cannot say it was clearly improper for the court to order an inventory of the contents of the box. We take the same view of the household items.

The order of the Probate Court is affirmed.

Dudley, J., dissents.

Robert H. Dudley, Justice,

dissenting. I dissent. In Hilburn v. First State Bank of Springdale, 259 Ark. 569, 535 S.W.2d 810 (1976), this Court set out the jurisdiction of probate courts as follows:

The probate court is a court of special and limited jurisdiction, even though it is a court of superior and general jurisdiction within those limits. Huff v. Hot Springs Savings, Trust & Guaranty Co., 185 Ark. 20, 45 S.W.2d 508; Branch v. Veteran’s Administration, 189 Ark. 662, 74 S.W.2d 800; Lewis v. Rutherford, 71 Ark. 218, 72 S.W. 373. It has only such jurisdiction and powers as are expressly conferred by statute or the constitution, or necessarily incident thereto. Huff v. Hot Springs Savings, Trust & Guaranty Co., supra; Moss v. Moose, 184 Ark. 798, 44 S.W.2d 825; Smith v. Walker, 187 Ark. 161, 58 S.W.2d 946; Lewis v. Rutherford, supra. A probate court is without jurisdiction to grant equitable relief, even though it may apply equitable doctrines in probate matters properly brought before it. Jones v. Graham, 36 Ark. 383. See also, Merrell v. Smith, 226 Ark. 1016, 295 S.W.2d 624; Bonner v. Sledd, 158 Ark. 47, 249 S.W. 556; Arkansas Valley Trust Co. v. Young, 128 Ark. 42, 195 S.W. 36.
The constitution vested in the probate courts exclusive original jurisdiction “in matters relative to the probate of wills, the estates of deceased persons, executors, administrators, guardians, and persons of unsound mind and their estates, as is now vested in courts of probate, or may be hereafter prescribed by law. The judge of the probate court shall try all issues of the law and of facts arising in causes or proceedings within the jurisdiction of said court, and therein pending.” Art. 7, § 34, as amended by Amendment 24, § 1. Ark. Stat. Ann., Const. (1947). The statutory jurisdiction of the court is stated by Ark. Stat. Ann. § 62-2004 (b) (Repl. 1971), viz:
Jurisdiction. The Probate Court shall have jurisdiction of the administration, settlement and distribution of the estates of decedents, the probate of wills, the persons and estates of minors, persons of unsound mind and their estates, the determination of heirship, adoption, and (concurrent with j urisdiction of other courts) j urisdiction to restore lost wills and for the construction of wills when incident to the administration of an estate; and all such other matters as are now or may hereafter be by law provided. The judge of the Probate Court shall try all issues of law and of fact arising in causes or proceedings within the jurisdiction of said court and therein pending. The court shall have the same powers to execute its jurisdiction and to carry out its orders and judgments, including the award of costs, as now exist in courts of general jurisdiction; and the same presumptions shall exist as to the validity of its orders and judgments as of the orders and judgments of courts of general jurisdiction.

Id. at 572-73, 535 S.W.2d at 812. Today, the probate court still has only such powers as are conferred by statute or the constitution.

In this case Lloyd White, the intervenor and appellee, has not claimed by any type of pleading an equitable or legal property right in or interest in or claim against the ward’s property. He is a “third person,” a stranger to the estate. See Ellsworth v. Cornes, 204 Ark. 756, 165 S.W.2d 57 (1942) [fully explained in Snow v. Martensen, 255 Ark. 1049, 505 S.W.2d 20 (1974)]; Ark. Stat. Ann. § 62-2003 (k) (Repl. 1971) [made applicable to guardianship proceedings by Ark. Stat. Ann. § 57-603 (Repl. 1971)]. He has no standing to sue in probate court. The majority opinion disclaims the issue by stating: “White was permitted to intervene in the proceedings and no appeal has been taken from that order.” Perhaps standing is not the most significant issue in this case, but it was raised below and the order allowing the intervention could not have been appealed before now. Rules of Appellate Procedure, Rule 2 (a) 4, Ark. Stat. Ann. Vol. 3A (Repl. 1979). I would decide the issue of standing.

Of real significance is the fact that the intervenor below, appellee here, stated no cause of action against John Ratterree over which probate court has jurisdiction. The guardian of the estate asks nothing. No interested person seeks relief. The appellee’s pleading is essentially an objection to both the inventory and the accounting filed by the guardian of the estate, the City National Bank of Fort Smith. The guardian of the person does not file the inventory and the accounting. Ark. Stat. Ann. §§ 57-623 and 57-624. Therefore, there is no probate cause of action stated against John Ratterree either as an individual or in his capacity as guardian of the person. There is no affidavit or other pleading stating that John Ratterree has possession of any property belonging to the ward. The third party simply wants to delve into the joint tax returns of the ward and the guardian of her person, John Ratterree. Yet, the probate court, without statutory authority, entered an order for the production of the joint tax returns of the ward and her husband, John Ratterree, so they might be examined by the court and by appellee.

The decedent’s estate statute authorizing discovery of assets, Ark. Stat. Ann. § 62-2409 (Repl. 1979) is made applicable to guardianship proceedings by operation of Ark. Stat. Ann. § 57-603 (Repl. 1971). It provides:

Discovery of assets. — If a personal representative or other person interested in the estate shall file with the court an affidavit stating that the affiant has good cause to believe that any person named in the affidavit has knowledge concerning or possession of any property, whether real or personal, or any records, papers or documents belonging to the decedent, or affecting his title to or rights in any property, the court shall have the power to cause such person to appear before the same court and be examined on oath for the discovery of the same. Any person failing to appear when ordered, or refusing to answer proper questions, shall be adjudged guilty of contempt of court and punished accordingly.

There simply was no affidavit or pleading which gave jurisdiction to order discovery of assets against John Ratterree.

Even if some valid pleading against John Ratterree had been filed, the probate court, under the statute quoted above, can only cause him to appear before the court and be examined under oath for the discovery of assets. The probate court simply has no statutory or constitutional authority to order an individual to deliver his and the ward’s joint tax returns for a third party’s perusal.

Since the probate court did not have jurisdiction to order delivery of the joint tax returns for examination by a third party who has no standing I would hold that part of the order is void and should be quashed. See Huff v. Hot Springs Savings, Trust & Guaranty Co., 185 Ark. 20, 45 S.W.2d 508 (1932).

        Glazer v. Glazer, 374 F.2d 390 (1967); Ullmann v. Hartford Fire Insurance Co., 87 N.J. Super. 409, 209 A.2d 651 (1965); Boswell v. Curtis, 334 S.W.2d 757 (Mo. App. 1960).


author: Steele Hays, Justice. Frank Holt, Justice,

text:
    SPECIAL SCHOOL DISTRICT OF FORT SMITH #100 v. SEBASTIAN COUNTY, Arkansas
    82-188
    641 S.W.2d 702
    Supreme Court of Arkansas
    Opinion delivered November 8, 1982
    [Rehearing denied December 6, 1982.]
    [Opinion amended December 13, 1982.]

      Pryor, Robinson ir Barry, by: H. Clay Robinson, for appellant.

      Martin, Vater ir Karr, by: Charles Karr, for appellee.
   Steele Hays, Justice.

At issue in this case are certain ad valorem tax monies assessed for the appellant, Special School District of Fort Smith, No. 100. The specific part of the tax monies with which they are concerned is that portion which by statute is designated as collector’s commissions. It is the position of the School District that the appellee, Sebastian County, may apply the statutory collector’s commission to the necessary costs of collecting taxes but that any excess amount of the commission must be disbursed to the taxing unit, the School District. It argues that any other application of the funds is in violation of the Arkansas Constitution, Art. 16, § 11, and of Act 123 of 1975 which expressly requires these excess commissions be paid over to the School District. The County maintains that because it has a combined office of sheriff and collector, the monies in question may be applied to the consolidated expenses of both functions of that office, and not to the collector’s expenses alone. It further argues that Act 123 of 1975 is unconstitutional. The School District requests the return of the taxes collected in 1980 for 1979, now held in the registry of the trial court, and that all excess collector’s commissions collected in subsequent years be paid over to the appropriate taxing agencies.

This action was initiated by the School District as a writ of mandamus against the County. The trial court ruled in favor of the County for the 1979 taxes and also entered a declaratory judgment in its favor in connection with the School District’s taxes assessed in years subsequent to 1979. The trial court ruled Act 123 of 1975 unconstitutional.

We disagree with the trial court’s decision on the School District’s first argument. That issue is whether the application of excess collector’s commissions to the combined expenses of the sheriff/collector’s office is a violation of Arkansas Constitution, Art. 16, § 11:

No tax shall be levied except in pursuance of law, and every law imposing a tax shall state distinctly the object of the same; and no moneys arising from a tax levied for one purpose shall be used for any other purpose.

In 1972, we decided Dermott Special School District v. Brown, 253 Ark. 222-P, 485 S.W.2d 204. In a similar fact sitaution we held that the excess collector’s fees could be used to defray the combined, expenses of the sheriff/collector’s office.

We now overrule Dermott.

Dermott’s holding was based on the propositions that: 1) the sheriff/collector’s office is not two distinct offices; 2) that the sheriff has a right to the $5,000 salary plus his expenses and, therefore, 3) the taxing units only have a contingent right to the money — the sheriff first having a right to the $5,000 and his expenses.

The majority in Dermott based its recognition of the sheriff’s claim to the money as belonging to him, on Ark. Stat. Ann. § 12-1805 and 12-1807. However, a close reading of that statute shows that only the salary is covered and that any expenses over that must be turned over to, and itemized for, a reviewing officer. Whether this constitutes a right to the expenses is certainly debatable.

Even granting that those provisions may give an officer a “right” to his expenses above his salary, it does not necessarily mean, as in this case, that he has a right to those expenses when the funds to pay those expenses will come from school monies that bear no relationship to the office in question. We have outlined in a number of cases that the sheriff/collector’s office constitues two distinct and separate offices. McCabe, Ex Parte, 33 Ark. 396 (1878); Falconer v. Shores, 37 Ark. 386 (1881); Crowell v. Barham, 57 Ark. 195, 21 S.W. 33 (1893) and State v. Landers, 183 Ark. 1138, 40 S.W. 432 (1931). It is particularly clear in our present case that the sheriff/collector’s office is two distinct offices. The record offers a copy of the budget for the sheriff/collector’s office. It is divided into six divisions: Communications, Detention Center, Law Enforcement Personnel, Sheriff’s Operations, Sheriff’s Vehicles and Collector. Under each division are itemized and detailed entries for expenses and salaries. Nothing could make it clearer that the collector and sheriff are two separate functions that bear no relationship to each other. To suggest then that school funds used for the Detention Center or Sheriff’s Vehicles is not a diversion of funds is simply erroneous. Sections 12-1805 and 12-1807 would certainly be governed by the strictures of Art. 16 § 11. The sheriff’s expenses, by whatever name the office is called, cannot be funded by monies raised for school purposes.

We also note that the use of school funds for other than their intended purpose is specifically limited by Arkansas Constitution, Art. 14 § 2, and Amendment 40; and this principle was affirmed in Little River County Board of Education v. Ashdown Special School District, 156 Ark. 549, 247 S.W. 70 (1923) and County Board of Education v. Austin, 169 Ark. 436, 276 S.W. 2 (1925).

Dermott was distinguished from Austin and Terry, County Judge v. Thornton, 207 Ark. 1019, 183 S.W.2d 787 (1944) by saying that in those cases, the taxing agencies had a vested right in the money, whereas in Dermott, operating under the fee system, the taxing agents only had a contingent right because up to salary and expenses the money belonged to the sheriff. However, as stated above, we do not agree that the money for the sheriff’s expenses belongs to him, and the money collected, therefore, remains the school’s, minus whatever is due the collector for salary and expenses. The problem is not whether or not the county’s salaries are based on the fee system, or at what point monies become vested in one agency or the other, but simply whether the excess collector’s fees from school taxes are being used for something other than school purposes.

The fact situation in Austin and Thornton is actually very similar to Dermott and to this case. We found a diversion of school funds in those cases. There, the salaries of various officers were deducted from fees they collected and any excess was put into the county general fund where, in Austin for example, the money could be used for such general purposes as general public improvements. We found this in violation of Art. 16 § 11. This is precisely the situation we have in this case. Certainly the collector, sheriff, or any other officer has a right to his salary up to the fees he collects (Ark. Stat. Ann. § 12-1807) and arguably from those fees, his expenses. But that statute is limited by Art. 16 § 11. Were the collector to take the excess fees raised from school funds and apply them to road improvements, clearly Art. 16 § 11 would prohibit that. And here, the fact that the two offices are headed by a dual officer, does not permit the use of school funds for purposes plainly unrelated to school purposes.

In Dermott, the majority reasoned that because we have accepted as constitutionally permissible the application of collector’s fees to sheriff’s salary (Landers, supra), that it is a logical extension to also allow those fees to defray the sheriff’s expenses. This might be so for counties of a small population where the two officers are inextricably intertwined. But here where the sheriff’s budget is so large ($792,306 in 1980) and readily lends itself to specific itemization as shown by the budget in the record, the sheriff’s expenses are so distinct from the collector’s function that the point is not worth arguing.

We realize that our decision will have an impact on 50 other counties where the diversion of funds is less conspicuous and where reliance has been placed on our decision of Dermott, decided 10 years ago. But in spite of our concern for these situations we are compelled to declare the challenged practice to be in clear violation of the Constitution.

There may be a constitutionally acceptable dividing line for these cases, but as a judicial body we. are not equipped to determine where that line should be drawn. However, to lessen the harshness of our reversal on counties that have relied on our earlier decision in Dermott, and to allow for alternative financing arrangements, we make this decision prospectively effective with the collection of 1983 taxes in 1984.

While we make this change prospectively, nonetheless with respect to this case our decision is given immediate effect, so that the efforts of a litigant to bring about needed changes in the law will not go unrewarded, because without such inducements changes might not occur. See Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968). The funds held in the registry of the trial court should be disbursed to the appellant.

Appellant’s second argument is that Act 123 of 1975 is not unconstitutional. That Act provides, among other things:

Hereafter, in all counties in this State having a population of not less than 78,000 and not more than 84,000 ... a portion of the excess collector fees shall be remitted annually to all school districts in such counties. The amount to be remitted to each such school district shall be that portion of the excess fees that the millage levied by any such school district bears to the total millage levied by all taxing unitsdn the county.
In each such county of the State where there is a combined office of sheriff/collector, separate records shall be kept of the cost of the salaries and office expenses of the county sheriff’s functions and of the county collector functions of the combined office, in order that the cost of performing the duties of the county collector can be determined separately from the cost of performing the duties of county sheriff.

This Act has been challenged by the County as special or local legislation and in violation of the Arkansas Constitution, Amendment 14, which states: “The General Assembly shall not pass any local or special act. ...” By stipulation, the parties agree when this Act was passed that Sebastian County was the only county within the population range of that statute.

We have held on a number of occasions that legislation that will effectively apply to only one county, is local and special and therefore unconstitutional. Webb v. Adams, 180 Ark. 713, 23 S.W.2d 617 (1929), Humphrey v. Thompson, 222 Ark. 884, 263 S.W.2d 716 (1954). The appellant suggests that this Act has a reasonable relation to the classification, in that the purpose of the legislation is to provide for the application of excess collector’s commissions in a county where the size of the population causes the excess commissions to be large. This would be a commendable purpose, but if that were the case there would be no need to add an upper limit to the population range for the statute to have the desired result. Consequently, this Act specifically and effectively limits its application to Sebastian County only, and is in violation of Amendment 14. As we stated in Humphrey, supra:

The classification of counties and municipalities is legitimate when population or other basis of classification bears a reasonable relation to the subject of the legislation, and the judgment of the legislature in the matter should control unless the classification is . . . made for the purpose of evading the Constitution. . ..
Our view is that the so-called classification is but an attempt by technicality to evade what the courts have heretofore said the people meant when by amendment to the Constitution they struck at the evil flowing from local and special laws.

Reversed in part. Affirmed in part.

Adkisson, C.J., and Holt, J., dissent in part.

Frank Holt, Justice,

dissenting in part. Though the majority’s opinion is well written and well researched, I find it disturbing that the majority has chosen to overrule Dermott Special School District v. Brown, 253 Ark. 222, 45 S.W.2d 204 (1972), which was decided just ten years and one month ago. This is one of those areas of the law in which the doctrine of stare decisis should particularly apply. Presently, fifty-one counties have organized their financial arrangements in reliance upon our decision in Dermott. Stability in the law is especially important in such circumstances. Making today’s ruling apply prospectively, to a future date, arbitrarily selected and based upon no constitutional or statutory provision, does not remedy the instability resulting from today’s decision.

Furthermore, neither party to this litigation requested that Dermott be overruled, and, therefore, neither party briefed the dispositive point in the case, as the majority has decided it. Hence, without the aid of briefs or oral argument on the point and without having been requested to so act, this court overrules itself and reverses the trial court who, like the parties to this litigation, properly relied upon Dermott. Generally, we attempt to avoid reversing a prior decision of the court, even when the issue is squarely presented, but today the majority has decided, sua sponte, to do so.

Also, the manner in which the majority rules raises problems that even the majority admits the judiciary is not equipped to solve. In effect, we are digging up snakes for the legislature to kill or getting into a “briar thicket.” The majority admits that there may be counties so small that the offices of sheriff and collector are inextricably intertwined so that those counties may constitutionally apply the collector’s commissions from school taxes to pay the expenses of the sheriff’s office, and it also admits that we cannot draw a line as to which counties are that small and which are that large. Presumably, the legislature will have to draw this line. However, whenever the legislature does so, it can become our duty to review the legislature’s decision. Thus, we today invite a task for which we admit that we áre not equipped. Since the majority admits that we are not equipped to draw this line, no guidance is given the legislature as to what is permissible. Since the majority overrules rather than distinguishes Dermott, it presumably is deciding that Chicot County is so large that, there, the sheriff and ex-officio collector may not apply the collector’s commissions to the expenses of the sheriff’s office. Otherwise, Dermott would be distinguished due to the size of the county, rather than overruled outright. The record here reflects that the population of Chicot County is approximately 17,000, as opposed to 94,000 in Sebastian County. Nothing in the record reflects the accounting practices of the office of sheriff and collector in Chicot County, so I see no basis for the decision today that the Chicot County sheriff may not apply the collector’s commissions to the expenses of the sheriff.

None of the cases relied upon by the majority for the proposition that the sheriff/collector’s office constitutes two distinct and separate offices held that the constitution mandated that the accounting and fiscal arrangement of the sheriff/collector also is distinct and separate. McCabe, Ex Parte, 33 Ark. 396 (1878), and Falconer v. Shores, 37 Ark. 386 (1881), held that a separate bond must be posted for each office. Crowell v. Barham, 57 Ark. 195, 21 S.W. 33 (1893) held that a deputy sheriff, who was not also a deputy collector, could not conduct a valid tax sale. Contrary to the suggestion in the majority’s opinion, in Dermott we recognized those cases and distinctly stated that the office of sheriff and the office of collector are two distinct offices. However, none of those cases dealt with the issue here which is whether the constitution mandates separate accounting for the expenses and fees of the two functions of the office of sheriff/collector. More on point is the holding in State v. Landers, 183 Ark. 1138, 40 S.W.2d 432 (1931) which is cited by the majority without discussion. The trial court in Landers, reasoning much like the majority here, held that since the offices of sheriff and collector are separate and distinct, the holder thereof was entitled to two salaries. However, we reversed and held that the officeholder was entitled to only one salary, thereby intimating that, in fiscal matters, the constitution does not mandate that the two offices be held distinct. As we said in Dermott, it is merely an extension of the same logic to say that the expenses may be treated as one office. The majority cites no authority for the proposition that the constitution mandates that the two functions be treated as separate and distinct offices for fiscal purposes.

The situation here and in Dermott is unlike that in County Board of Education v. Austin, 169 Ark. 436, 276 S.W. 2 (1925), and Terry, County Judge v. Thornton, 207 Ark. 1019, 183 S.W.2d 787 (1944). In those cases excess fees and commissions were paid into a general county fund. Here, there is no excess, because the expenses of the office of sheriff/collector for the year in question exceed the total fees and commissions collected by the two functions. Here, unlike Austin and Terry, the same officer who is charged with the duty of collecting the taxes also has the right to charge commissions as provided by the legislature and apply those collections to the expenses of his office.

I agree with the majority that Act 123 of 1975 is unconstitutional. However, I disagree with that part of the opinion which overrules Dermott. Therefore, I would affirm the trial court in all respects.

Adkisson, C. J., joins this dissent, except he would hold Act 123 constitutional.

      Arkansas Constitution, Art. 19 § 23 sets the salary of county officers at $5,000. Ark. Stat. Ann. § 12-1805 and 12-1807 were part of Act 47 of 1875 putting Art. 19 § 23 into execution.

      Of the 51 counties having combined offices of sheriff and collector, the population ranges in size from 6,000-46,000 (averaging 16,000/county), excluding Sebastian County with a population of 94,000.
      Of the 24 counties with separate sheriff and collector’s offices the population ranges in size from 14,000-99,000 (averaging 42,000), excluding Pulaski County with a population of 340,000.


author: Per Curiam.

text:
    CITY OF LONOKE v. Emmett RICHEY, Phillip BARBER, Clara Mae CUNNING, Cuba V. GORDON, John MUNNERLYN, Edith HIGHFILL, Myrtle FAWCETT, Mr. and Mrs. J. D. ELLIOTT, Mr. and Mrs. Henry HILL, Odean BURRIS, Marvin MOORE, Nettie MUNNERLYN, Gladys CULLOM, Jessie GOLLEHER, Ola M. ASHCRAFT, Gamella DANIELS, Richard HORTON, Odell EVANS, Bessie LEMMONS, Willie MILLER, James CURRY, Corrine PERRY, Elnora CARROLL, Frank BUNTON, Oneda PHILLIPS, Argean HICKS, Betty UZZELL, Walter HOLLOWAY, Woodrow KING, Lula Bell KING, Claudine TURPIN, Joan LARRY, Dan STEWART, Charles WALLS, Jr., and all Other Taxpayers of the City of Lonoke, Lonoke County, Arkansas Who are Similarly Situated
    82-251
    641 S.W.2d 701
    Supreme Court of Arkansas
    Opinion delivered November 8, 1982
    [Rehearing denied December 6, 1982.]

      Faber D. Jenkins, for appellant.

      Henry A. Allen of Hardin, Grace, Downing, Napper, Allen if East, for intervenors..
   Per Curiam.

We advance and affirm this case because the appeal is taken solely for the purpose of delay. The Court of Appeals has certified the case to this Court pursuant to Rule 29 (1) (c).

Pursuant to ARCP Rule 24 (a) (2) the taxpayers are allowed to intervene in this cause to protect their interests.

In 1965 the City of Lonoke issued Amendment 49 General Obligation Industrial Development Bonds in the amount of $130,000.00. The levying ordinance provided that the purpose for the issuance of the bonds was to assist in the location of an industry in Lonoke. A levy of five mills per dollar on the assessed valuation of all taxable real and personal property in the City was made and collection of the levied tax was commenced.

By November, 1980, the bonded indebtedness had been retired and the City, by this tax, had collected a surplus of $70,869.51.

A taxpayers’ suit was heard by the Chancery Court of Lonoke County and on January 6,1981, a decree was entered which ordered: “The City of Lonoke should, with the least possible delay, refund the taxpayers their proportionate share, less the expense of distributing same, all of the taxes collected in excess of the funds necessary to retire the bonds, which sum is $70,869.51.”

No motion for a new trial was filed within ten days after the entry of the judgment. Rule 4, Rules of Appellate Procedure.

No motion for modification or vacation was filed within 90 days after the entry of the jdugment. ARCP Rule 60 (b).

On December 30, 1981, almost a full year after the judgment was entered, the City filed a motion for rehearing. ARCP Rule 60 (c) provides eight grounds for the setting aside of a judgment after the expiration of 90 days after the filing of the judgment. None of those grounds was pleaded.

On June 7,1982, the trial court entered its order denying the motion for rehearing and on June 24,1982, the City filéd its notice of this appeal. The notice of appeal designates the entire record of proceeding for review.

A motion to advance and affirm can be granted on the ground that the appeal is prosecuted solely for the purpose of delay and when the absence of error is apparent from a short and cursory examination of the record. Ark. Stat. Ann. § 27-2141 (Repl. 1979); Vaught v. Green, 51 Ark. 378, 11 S.W. 587 (1888). Here the untimeliness of the appeal is obvious from a cursory examination of the record. It is taken merely for the purpose of delay. The excess tax collections should be immediately refunded to the taxpayers. Therefore, this case is ordered advanced and affirmed on its merits. Costs are assessed against appellant.


text:
    Ronald Dean ROE v. STATE of Arkansas
    641 S.W.2d 31
    Supreme Court of Arkansas
    Opinion delivered November 8, 1982

      Donald R. Huffman, for appellant.

      Steve Clark, Atty. Gen., by: William C. Mann, 111, Asst. Atty. Gen., for appellee.
   Per Curiam.

Donald R. Huffman, attorney for appellant, has filed his Motion and Amended Motion for Rule on the Clerk. In an affidavit attached to the amended motion Donald R. Huffman states the reason for the delay in tendering the transcript was a mistake on his part in determining the date by which the appeal should have been filed.

We are granting the rule on the clerk upon the verification of attorney Donald R. Huffman that it was not timely filed due to his mistake. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Richard B. Adkisson, Chief Justice.

text:
    JACKSONVILLE CHRISTIAN ACADEMY v. ARKANSAS SOCIAL SERVICES
    82-119
    641 S.W.2d 716
    Supreme Court of Arkansas
    Opinion delivered November 15, 1982

      Larry C. Honeycutt of Harmon & Honeycutt, for appellant.

      Steve Clark, Atty. Gen., by: Robert L. Waldrum, Asst. Atty. Gen., and Judieth P. Balentine, Atty. Supervisor, Arkansas Social Services, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellee, Arkansas Social Services, secured, ex parte, a temporary restraining order under Ark. Stat. Ann. § 83-915 (Repl. 1976) enjoining appellant, Jacksonville Christian Academy, from providing day care service to preschool children. At the same time the trial court set a hearing to determine if the temporary restraining order should be dissolved. This was done pursuant to ARCP Rule 65 (b), Ark. Stat. Ann., Vol. 3A (Repl. 1979) which provides:

Upon application by the party against whom the preliminary injunction or temporary restraining order has been issued without notice, the Court shall, as expeditiously as possible, hold a hearing to determine whether the preliminary injunction or temporary restraining order should be dissolved. Where a hearing is required to be held on an application for a preliminary injunction or temporary restraining order, the Court may order the trial of the action on the merits advanced and consolidated with the hearing on the application. When consolidation is not ordered, any evidence received upon application for a preliminary injunction or temporary restraining order which would be admissible upon the trial on the merits becomes a part of the record of the trial and need not be repeated upon the trial. This subdivision (b) shall be so construed and applied as to save to the parties any rights they may have to trial by jury. (Emphasis supplied)

However, instead of holding a hearing on whether the temporary restraining order should be dissolved, the hearing actually became a trial on the merits of the case. Rule 65 (b) does not contemplate a trial on the merits at the time of the temporary hearing unless the trial court has ordered the proceedings consolidated; and, no such order was made in this case. Appellant had no notice that the hearing was to be a trial on the merits, and at the time of the hearing appellant had not filed an answer or had the time for doing so expired.

Appellant argues that the religious exemption clause of Act 518 of 1981, Ark. Stat. Ann. § 83-918 (Supp. 1981), is unconstitutional. But, we do not reach this issue since the trial court’s judgment does not disclose to what extent, if any, the constitutionality of the statute was considered.

For these reasons we reverse and remand for trial.

Reversed and remanded.


author: George Rose Smith, Justice.

text:
    Jo MHOON v. STATE of Arkansas
    CR 82-134
    642 S.W.2d 292
    Supreme Court of Arkansas
    Opinion delivered November 15, 1982
    [Rehearing denied December 20, 1982.]

      Ball, Mourton 6- Adams, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant Jo Mhoon was elected tax collector of Washington County for a two-year term beginning in January, 1979. In October, 1980, a state audit team made an unannounced cash count of funds in all the county offices in the county and discovered in the collector’s office money for which no receipts had apparently been issued. During the next nine months the auditors spent some 3,700 hours in conducting a detailed audit of the collector’s records and concluded that there was a shortage of about $24,000. This prosecution was instituted against the appellant for theft of funds in excess of $2,500 and for 20 charges of malfeasance in office (failure to account for collections within five days after the first day of 20 separate months). The jury found the appellant guilty of theft and sentenced her to a $10,000 fine and removal from office. The jury also found her guilty of 18 of the 20 charges of malfeasance in office and fixed her punishment upon each count at a $100 fine and removal from office.

For reversal the appellant argues that the court should have directed a verdict of not guilty upon the charge of theft, that an auditor should not have been permitted to summarize his findings without the supporting documents having first been admitted in evidence, and that the 20 misdemeanor counts of malfeasance in office should have been dismissed.

First, there is ample substantial evidence to support the submission of the theft charge. The auditors found that a great many carbon copies of tax receipts had been marked with the word “void,” although the original tax receipts had been issued. A handwriting expert testified that he had a high degree of certainty that the appellant had written the word “void” on the copies. There was testimony that after the appellant had been told of the shortages she appeared from time to time with some of the missing receipts. The proof showed that it was the appellant who took the weekly collections to the bank for deposit and thus had the opportunity to withhold cash. Other employees in the collector’s office testified that they had not voided the tax receipts. The jury evidently disbelieved the appellant’s testimony that she did not void the receipts and that someone else must have done so. The State’s proof was substantial, and upon the evidence, circumstantial though it was, the jury could reach its verdict of guilty without resorting to conjecture. See Cassell v. State, 273 Ark. 59, 616 S.W.2d 485 (1981).

Second, Rule 1006 of the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979), provides, as did the common law, that the contents of voluminous writings which cannot conveniently be examined in court may be presented in summary. That was done by the witness Johnson’s testimony. The auditors had examined hundreds of documents in the collector’s office and had recorded their figures in worksheets. Those documents and worksheets were made available to defense counsel and were brought into the courtroom at the court’s direction. The defendant was offered a continuance to permit her counsel to examine the documents, but that offer was declined. The trial judge handled this entire matter correctly.

Third, the trial court overruled a defense motion to dismiss the charges of malfeasance in office, finding that the collector’s failure to pay over the funds within five days after the first of each month was a violation of a statute cited in the information, Ark. Stat. Ann. § 84-1401 (Repl. 1980), and that the misdemeanor penalty was provided by the next section, § 84-1402, also cited in the information.

The court’s ruling was in error. That the two sections happen to have been compiled successively in the annotated statutes does not mean that they are closely related. Quite the contrary. The penal section, § 84-1402, was enacted in 1883, when there were in circulation paper currency, national bank notes, warrants, and scrip that were not worth their face value. The section specifically required the collector to pay his various collections into the county treasury in kind: that is, in the same form in which he received them. The section provided that his failure to do so subjected him to a $100 fine and subjected his official bondsman to liability “for the difference in value between the funds received and those paid” into the treasury. We so construed the 1883 statute in Newton County v. Phillips, 181 Ark. 177, 25 S.W.2d 419 (1930), where the collector had received cash but had deposited depreciated scrip instead.

The other section ci ted in the information, § 84-1401, is part of Act 282 of 1935. That act comprises nine sections and simply defines the routine for the payment of taxes and for the handling of the funds by the collector and other county officers. Section 7 of that 1935 act does require the county collector to deposit his collections monthly with the treasurer, but there are no pertinent criminal penalties for his failure to do so. Thus the trial court was mistaken in holding that such a failure is a violation of the 1883 statute requiring the collector to make his deposits with the county treasurer “in kind.” We find no indication in any statute that the collector’s failure to deposit his collections promptly is in itself a criminal offense.

The judgment is affirmed with respect to the conviction for theft, but with respect to the misdemeanor convictions the judgment is reversed and the charges are dismissed.


author: Frank Holt, Justice.

text:
    Robert L. JONES v. STATE of Arkansas
    CR 82-58
    641 S.W.2d 717
    Supreme Court of Arkansas
    Opinion delivered November 15, 1982

      John H. Bradley, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted by a jury of aggravated robbery (Ark. Stat. Ann. § 41-2102 [Repl. 1977]), and sentenced to forty years’ imprisonment. He raises five points on appeal.

Appellant testified and freely admitted his guilt before the jury. He argues that the trial court erred in limiting his testimony which was offered to mitigate the possible punishment. At an in camera hearing, the court had ruled that evidence concerning appellant’s personal situation and circumstances in life was inadmissible as not being relevant. However, when the defendant took the witness stand, the court did allow him to testify that he was a factory worker and had been fired, divorced, the father of two children with whom he did not live, had served in the U. S. Marines and was a Vietnam veteran with an honorable discharge and four medals. The court did not permit the appellant to further testify, which was proffered, that he and his wife had separated two months before the alleged offense; it was during the Christmas holidays; he was having trouble seeing his children and had in-law problems; he had lost his home inasmuch as he could not make the payments and neither was he able to pay a lot of bills. However, the record reflects that the arresting officer, on cross-examination, testified that the appellant told him about his problems with his wife and in-laws and that he needed money.

The admissibility of this evidence depends upon whether it is relevant. Relevancy of evidence is within the trial court’s discretion and we will not reverse absent a showing of abuse of discretion. Rule 401, Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Repl. 1979); Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980); and Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). Matters of mitigation of punishment are relevant and appropriate, within the court’s discretion, for a jury’s consideration in arriving at punishment. In the circumstances, in view of the evidence that was permitted by the trial court bearing on appellant’s personal situation, we cannot say that the trial court abused his discretionary authority in the restriction he placed upon the proffered evidence.

The appellant insists that the trial court erred in not allowing the defendant to explain his prior criminal convictions to the jury. The appellant took the stand to offer testimony as to his good character and for the purpose of mitigating his punishment. He readily admitted that he had been convicted of three previous criminal violations. With respect to a conviction of burglary and grand larceny, appellant’s counsel asked: “Did you receive a five year suspended sentence?” The prosecutor’s objection was sustained, and the jury was admonished to disregard the sentence but not the conviction. The trial court also sustained an objection that prevented the appellant from explaining a kidnapping charge to which the appellant had pleaded guilty in 1975. His testimony was proffered that he had forced a woman into his car but did not manhandle her, and he had pleaded guilty on the advice of the public defender, who told him it was not really kidnapping.

We have held that no reversible error was committed where the trial court permitted a state’s witness to explain the circumstances of an admitted crime, which conviction was used by the defense to impeach his credibility as a witness. The reasoning is that since a conviction affects the witness’ credibility, then it is not error to allow an explanation by the witness. Hopper v. State, 151 Ark. 299, 236 S.W. 595 (1922). See also Ballew v. State, 246 Ark. 1191, 441 S.W.2d 453 (1969). However, we also have held that no reversible error was committed where a defendant took the stand, was cross-examined with respect to a previous trial for homicide, and was restricted by the trial court to stating only that he had been acquitted. Lassiter v. State, 137 Ark. 273, 208 S.W. 21 (1919). In other words, when a witness, as here, admits a previous conviction, he is not absolutely precluded from offering any explanation of the offense unless it tends to retry the case and demonstrate innocence. Again, this is an issue of relevancy, and the trial court is permitted a wide range of discretion and will not be reversed absent an abuse of that discretion. Hamblin v. State, supra. See also Harris v. State, 273 Ark. 355, 620 S.W.2d 289 (1981). Although the trial court has discretion in determining the extent that a witness can explain a previous conviction, we think the appellant here should have been permitted to state that his five year sentence was suspended.

The appellant argues that the trial court erred in overruling his objection to the prosecutor’s closing argument to the jury during which he referred to appellant’s three previous convictions. When the defense attorney objected, the state’s attorney responded that he was arguing to the jury the aspect of punishment alone. The court overruled appellant’s objection to this argument. The state’s closing argument was admittedly “devoted to punishment.” Generally, references to prior convictions of the defendant by the prosecution in closing argument are highly prejudicial and may constitute grounds for mistrial. Shaddox v. State, 243 Ark. 55, 418 S.W.2d 780 (1967). See also Simmons & Flippo v. State, 233 Ark. 616, 346 S.W.2d 197 (1961). However, such references are not always improper. We have said that the closing arguments of counsel must be confined to the questions in issue, the evidence introduced at trial, and all reasonable inferences and deductions which can be drawn therefrom. Simmons & Flippo v. State, supra. Here the existence of the previous convictions was not in issue. They were freely admitted. The court instructed the jury during voir dire that appellant’s previous convictions should be considered as going to his credibility and not guilt or innocence. Appellant was not charged as being a habitual criminal which provides for enhancement of sentence. In the circumstances, we think it was prejudicial error for the state to have been permitted to argue that the previous convictions should be considered as bearing upon appellant’s punishment.

We deem it unnecessary to discuss appellant’s other contentions for reversal inasmuch as these asserted errors are unlikely to occur upon a retrial.

Reversed and remanded.


text:
    STATE of Arkansas v. Richard JAMISON
    CR 82-101
    641 S.W.2d 719
    Supreme Court of Arkansas
    Opinion delivered November 15, 1982

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellant.

      William C. McArthur, for appellee.
   Darrell Hickman, Justice.

This is an appeal by the State from a pre-trial order of the trial court dismissing a charge of theft against Richard Jamison. Actually what is sought in this case is an advisory opinion by this court. The trial court was wrong in dismissing the charge and the matter is remanded.

Jamison was charged with theft in violation of Ark. Stat. Ann. §41-2203 (Repl. 1977). He waived a jury and when the matter was before the court, his counsel presented a motion to dismiss, arguing that the facts in this case would not constitute theft. After counsel briefly informed the court of the facts, the court decided that the parties could stipulate to the facts and the court would rule the conduct did not amount to theft, thereby permitting the State to obtain a decision from us before a trial and save both parties time and expenses.

Both counsel agreed that generally the facts were that Jamison was a contract driver for ABC Trucking Company of North Little Rock, and that a dispute arose between Jamison and ABC about the amount of money due to Jamison for services performed. Apparently Jamison claimed he was due $800.00 and ABC acknowledged a debt of only $500.00. Jamison left the North Little Rock terminal with a truck and load belonging to ABC and refused to return it until he was paid what he claimed. After some negotiations, Jamison agreed to meet a representative of ABC in Dallas, Texas. When he did he was arrested for theft.

The question presented to the trial court was whether Jamison’s actions deprived ABC of its property according to the criminal code. Ark. Stat. Ann. § 41-2201.4 (b) defines a form of “deprive” as withholding property or causing it to be withheld with the purpose to restore it only upon the payment of a reward or other compensation. On these skimpy facts, as stipulated by the lawyers, the trial judge found Jamison’s conduct did not amount to depriving an owner of property until the payment of “other compensation.”

The court could have dismissed the charge because it did not state a criminal offense according to the ldw. (There was no challenge in that regard.) But there is no provision for dismissing a charge because the facts that will be presented do not amount to criminal conduct. Who decides what the facts are? The court was careful to get the parties to agree that the trial had not started, that is, double jeopardy could not be a defense if we reversed his decision. But if the trial had not started, how could facts be determined? The court could not accept the “facts” unless it assumed the role of the fact finder, a posture he decided not to do. A.R.Cr.P., Rule 36.10 (Supp. 1981), which allows interlocutory appeals by the state, makes no provision for an appeal from a decision based on what the facts will be. Furthermore, in the crime of theft, there is always the element of intent, which of course has to be decided by the jury, or the court sitting without a jury. Certainly that issue was not resolved.

The matter is reversed and remanded.

Reversed and remanded.


author: John I. Purtle, Justice.

text:
    FORD LIFE INSURANCE COMPANY v. Mary SAMPLES, Administratrix for the Estate of Edgar L. SAMPLES, Deceased
    82-104
    641 S.W.2d 708
    Supreme Court of Arkansas
    Opinion delivered November 15, 1982

      Smith h- Nixon, by: W. R. Nixon, Jr., for appellant.

      Murphy if Carlisle, by: Darrell E. Baker, Jr., for appellee.
   John I. Purtle, Justice.

Mary Samples, administratrix for the estate of Edgar L. Samples, filed suit in the Washington County Circuit Court to collect benefits pursuant to a policy of credit life insurance which had been issued to the decedent shortly before his death. The trial court, without a jury, found the appellant liable in the amount of $3,938.70, plus a penalty of 12%, plus interest and attorney’s fees. The appellant argues three points for reversal: (1) the trial court erred in holding the “good health” statement was materially correct; (2) the trial court erred in holding that appellant had been placed on notice of the decedent’s health condition; and, (3) the trial court erred in awarding excess damages. We agree with the appellant’s third contention but disagree as to the first two.

On September 11, 1976, the decedent and his wife, the appellee, went to a local Ford agency and purchased a 1976 Ford pickup truck. In conjunction with the sale the decedent purchased a policy of credit life insurance and in the process executed a “good health” statement. At the time he was drawing 100% disability from the Veterans Administration founded upon an anxiety reaction and chronic brain syndrome. The day following the signing of the contract the deceased suffered a myocardial infarction which resulted in his death on September 15, 1976. The appellant rejected payment on the policy and returned the premium, of $88.61, for credit on the contract. It was appellant’s contention that the deceased was suffering from heart disease at the time he executed the “good health” statement. The death certificate indicated that the infarction occurred approximately 48 hours before death and that deceased had been suffering from arteriosclerosis for five years. This evidence was essentially undisputed by the appellee.

The trial court found, among other things, that the agent who sold the insurance policy was a soliciting agent. The court further held that the agent learned of the insured’s poor health and that he was drawing disability insurance prior to his signing of the application for insurance. Most importantly, the trial court found that the deceased did not make any specific misstatement or false statement. The judgment was in the amount of $3,938.70 on the policy, a penalty of 12%, interest from the date suit was brought, and an attorney’s fee in the amount of $500.

Apellant’s first argument is that the “good health” statement was materially incorrect. Accordingly, the application was alleged to be void pursuant to Ark. Stat. Ann. § 66-3208 (b) (Repl. 1980). Among other things, the statute requires that in applications for life or disability insurance the statements made by the annuitant shall be deemed to be representations and not warranties. The statute further provides:

Misrepresentation, omissions, concealment of facts, and incorrect statements shall not prevent a recovery under the policy or contract unless either:
(a) Fraudulent; or
(b) Material either to the acceptance of the risk, or to the hazard assumed by the insurer; or
(c) The insurer in good faith would either not have issued the policy or contract, or would not have issued a policy or contract in as large an amount or at the same premium or rate, or would not have provided coverage with respect to the hazard resulting in the loss, if the true facts had been made known to the insurer as required either by the application for the policy or contract or otherwise.

There is no question but that the “good health’’ statement is incorrect as a matter of law when the insured is aware of an affliction which would seriously affect the risk. Southern Security Life Insurance Co. v. Smith, 259 Ark. 853, 537 S.W.2d 542 (1976). The ultimate question presented under this point is whether the insured knew at the time of the statement that he was suffering from a heart disease which resulted in his subsequent death. In searching the record we are unable to find evidence clearly indicating that either the deceased or his wife knew he was suffering from arteriosclerosis or other heart disease. It is true that on two or three occasions the deceased was temporarily treated for hypertension. In fact, there is evidence to indicate that he had suffered from symptoms similar to heart disease in the past. However, the record does not show that he was on medication for arteriosclerosis or that he had been told that he was suffering from any type of heart disease. Appellee does not deny that deceased was afflicted with arteriosclerosis but denies that either the deceased or the appellee had knowledge of this condition. It is appellee’s position that although the deceased was suffering from a heart disease, it was unknown to him or his wife. We have held that a “good health” statement on the application for life insurance, even if materially incorrect in some respects, will not void the policy unless the insurer shows a causal relation between the misrepresentation and the loss. National Old Line Insurance Co. v. People, 256 Ark. 137, 506 S.W.2d 128 (1974). We cannot say that the trial court’s judgment was clearly against the preponderance of the evidence. Applicant died as a result of a disease which was not connected to his total disability condition. Therefore, the trial court could properly find there was no causal relation between the misrepresentation and the loss.

Next, the appellant argues that it was not placed on notice of the deceased’s actual health condition thereby waiving its right to deny benefits under the policy. Even if we accept the fact that notice to the agent was notice to the appellant, we do not find that there was any notice relating to heart disease. One reason there was no notice is because the decedent apparently had no knowledge of the condition which obviously existed at the time he made application for the insurance. However, we do agree with appellant’s contention that notice to a soliciting agent is neither binding nor sufficient authority to waive policy requirements. Continental Insurance Companies v. Stanley, 263 Ark. 638, 569 S.W.2d 653 (1978). We do not think the appellant was placed on notice of the decedent’s bad health condition which contributed to his death for the reason that the deceased had no knowledge of his condition. Therefore, so far as the deceased was concerned, he answered the question truthfully when he said he was in good health. The “good health” statement obviously did not include the condition which allowed him to receive his Veterans Administration benefits because by agreement his disability check was to be used to pay for the pickup truck.

It may seem harsh in a situation such as this where the applicant died the day following his application for reasons which already existed. However, the General Assembly seemed to have in mind such situations as this when they enacted Ark. Stat. Ann. § 66-3208 (b). The facts of the present case do not lend themselves to support the exceptions set out in the foregoing-statute.

Finally, the appellant argues the court erred in the amount of the judgment and other benefits. We agree. The terms and conditions of the contract of life insurance would not exceed the maximum amount of the installment contract. The amount financed in this case was $3,391.36. Finance charges in the amount of $547.43 were added which brought the total to be paid out in the 35 monthly installments to be $3,938.79. The finance charges were not all earned and neither were all of the charges for the insurance. Therefore, the case should be returned to the trial court to determine the amount of payoff on the installment contract. Since the amount to be determined will be obviously less than the amount sought in the complaint, the appellee was not entitled to the penalty and attorney’s fee. Such claim is allowed only when the recovery is in the amounts sued for. Ford Life Insurance co. v. Jones, 262 Ark. 881, 563 S.W.2d 399 (1978). Therefore, we affirm in part and remand in part with directions for the trial court to proceed in a manner not inconsistent with this opinion.

Affirmed in part; reversed and remanded in part.