text:
    STATE of Arkansas v. Joe SCARMARDO
    CR 78-9
    565 S.W. 2d 414
    Opinion delivered May 1, 1978
    (In Banc)
    [Rehearing denied June 5, 1978.]

      Bill Clinton, Atty. Gen., by: Robert M. Lyford, Asst. Atty. Gen., for appellant.

      Frank W. Booth, for appellee.
   Frank Holt, Justice.

Appellee was charged in municipal'c’ourt with theft of services and breaking or entering in violation of Ark. Stat. Ann. § 41-2204 and § 41-2003 (Repl. 1977) respectively. The charges resulted from appellee allegedly securing electrical services without payment by breaking into an electrical meter. That court found appellee guilty of theft of services, after the charge was reduced to a misdemeanor, and.assessed his punishment at ninety days’ imprisonment and a $500 fine. The appellee was certified to the circuit court on the felony charge of breaking or entering. That court granted appellee’s motion to dismiss finding the charge of breaking or entering under § 41-2003 did not encompass the alleged acts of the defendant. Appellant contends it was error to grant the motion. The court was correct.

The information alleged that appellee committed the crime of breaking or entering when he broke into “a product dispenser, to wit: an electrical meter unit, . . . for the purpose of committing a theft.” § 41-2003 provides that a person commits the offense of breaking or entering if “for the purpose of committing a theft or felony he enters or breaks into any building, structure, vehicle, vault, safe, cash register, money vending machine, product dispenser, money depository, safety deposit box, coin telephone, coin box or other similar container, apparatus, or equipment.” The commentary to that statute states, inter alia, that defining the offense serves the function “to reach larcenous conduct directed against vending machines and other types of containers likely to-contain money.”

It is well settled that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed. Austin v. State, 259 Ark. 802, 536 S.W. 2d 699 (1976). Webster’s Third New International Dictionary (1968) defines the word “dispenser” as “a mechanical device for vending merchandise (as candy, gum, or postage stamps).” There also a meter is defined as a measuring device. Adoption of the construction urged by appellant would extend the coverage of § 41-2003 by requiring us to read into the statute an intent which is certainly not clearly expressed. Here we cannot agree that an electrical meter is a “product dispenser” or a “similar container” within the meaning of the statute.

Affirmed.


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Wilson BREAKFIELD, Jr. v. STATE of Arkansas
    CR 77-231
    566 S.W. 2d 729
    Opinion delivered May 1, 1978
    (Division II)
    [Rehearing denied July 3, 1978.]

      Kearney & Kearney, for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

We reverse this criminal case because there is no substantial evidence to support the conviction of Wilson Breakfield, jr., for interfering with a police officer in the performance of his duties. Breakfield argues, among other things, that there is insufficient evidence to support his conviction on this charge, and we must agree. It appears the state simply charged Breakfield with the wrong offense.

Breakfield’s brother had been arrested by the Lewisville City Marshal, Victor Knight, and placed in the Lafayette County jail. Within minutes after Breakfield’s brother was placed in jail, Breakfield went to the jail to see his brother. There were three police officers in the office at that time: Knight; the Chief of Police of Waldo, Arkansas; and an Arkansas state policeman. According to the Waldo Chief of Police, Breakfield said, “Why did you arrest my brother?” Knight replied, “How old is your brother?” Breakfield said, “Twenty-two or twenty-three.” Knight said, “Well, your brother is old enough to speak for himself. That is all 1 have got to say. You can leave.”

Breakfield testified that when he was told to leave he left without causing any trouble. Knight testified that he had to order Breakfield to leave the office and when Breakfield refused he was informed that he was under arrest for disorderly conduct. Knight said that he could not effect an arrest; Breakfield had left the office and it was necessary to pursue him. Outside the office Breakfield and Knight had another encounter. According to Knight he told Breakfield he was under arrest and Breakfield put his hand in his rear pocket stating that he would kill him. This statement was apparently not heard by the other two officers. Knight wrestled with Breakfield and finally Breakfield was subdued with the assistance of the other officers. Breakfield was charged with violation of Ark. Stat. Ann. § 41-2804 (Repl. 1977), interference with a police officer performing his official duties.

The new criminal code also has a provision for resisting arrest. Ark. Stat. Ann. § 41-2803 (Repl. 1977). Before the adoption of the hew criminal code there was no statute defining resisting arrest, as such. Such misconduct was usually charged under statutes defining obstructing or resisting an officer, assaulting an officer or threatening an officer. See Commentary to Ark. Stat. Ann. § 41-2803.

A study of these statutes and their commentaries indicates that ordinarily one charged with violating Ark. Stat. Ann. § 41-2804, interfering with a police officer in the performance of his duties, would not apply to the situation before us. The only evidence of Breakfield’s guilt of such misconduct would be a statement by Officer Knight. Knight testified that at the time.Breakfield entered the jail:

I was just before attempting to interview the complainants. They were inside the office, or was coming in.

The state argues that this was sufficient evidence to support a finding that Knight was performing an official duty. We cannot agree.

Criminal statutes must be strictly construed with doubts being resolved in favor of the defendant. Rowland v. State, 255 Ark. 215, 499 S.W. 2d 623 (1973). Applying this standard to this case and considering the evidence, we do not find substantial evidence to support the conviction of Breakfield for interfering with a police officer in the performance of his duties. Breakfield should have been charged with resisting arrest, or disorderly conduct, or both. However, those charges are not before us.

Reversed and remanded.

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


author: George Howard, Jr., Justice.

text:
    Kenneth Wayne WILLIAMSON v. STATE of Arkansas
    CR 77-219
    565 S.W. 2d 415
    Opinion delivered May 1, 1978
    (In Banc)
    [Rehearing denied June 5, 1978.]

      James J. Calloway and Beryl Anthony, Jr., for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Justice.

Appellant was charged by information with the crime or robbery of Keith’s Grocery on February 11, 1977.

The case was tried to a jury on July 14, 1977, and appellant was convicted and sentenced to the Arkansas Department of Correction for a term of twenty years.

Several points are relied upon for reversal of appellant’s conviction. However, we find merit in his contention that the trial court committed error in not requiring the state to disclose the recorded or taped statements made by certain witnesses for the state.

The record discloses that appellant filed a timely pretrial motion praying an order of the trial court requiring the state to disclose “any written or recorded statements or the substance of any oral statements” made by witnesses for the state. In response, the trial court, in effect, directed counsel for defendant and state to work out the discovery problems.

During the trial, counsel for appellant, obviously not being able to resolve the “discovery problems,” renewed his motion for discovery. A hearing was conducted by the trial court in chambers.

Counsel for appellant emphasized, during the in chambers hearing, that credibility of the state’s witnesses would be a primary issue in the trial and, consequently, he needed written, recorded and the substance of oral statements made by the state’s witnesses in order to prepare for his cross-examination. Appellant further emphasized that from the very beginning of appellant’s efforts to discover the statements, the state had taken the position that appellant-defendant was not entitled to this information until counsel for appellant was ready to conduct his cross-examination while, on the other hand, appellant insisted that he was entitled to this material even prior to the actual testimony of the state’s witnesses. Accordingly, appellant again urged the trial court, in the interest of a fair and impartial trial, to require the state to disclose the requested information. In response to appellant’s plea, the following exchange took place:

“THE COURT: All right, as to the motion to discover the statement of Shirley Monk, if any, at this time that motion will be denied. The State will be ordered to produce or will be prepared to produce any oral statement that she made, if she has acknowledged that statement or signed it.
“MR. ANTHONY: Your Honor, it’s my understanding that there is a tape recorded statement from her, that that statement has been transcribed, that last night she went over that statement with Mr. Mike Epley, that she said in discovery procedures in interviewing her, that he went over the entire statement with her, and that that substantially is what she will testify to today.
“THE COURT: At the close of her direct testimony then —
“MR. ANTHONY: We would ask that the tape recorded statement then be made available, so that 1 can make sure that the typed version is correct, and there is not anything material that is left out of the taped version, so that l can properly cross examine Mrs. Monk, because she is probably the most critical witness in this trial. She is the single corroborating witness that the State has that would tend to connect my client with the crime, over and above the accomplice testimony.
“THE COURT: All right then, I’ll ask the State, is that a fair transcription of the recording? Are you satisfied with the transcription of the recording?
MR. EPLEY: That’s correct.
“THE COURT: I’m not going to order that you be given the recording. I don’t see that that’s all that important. But that’s up to you. But at the close of the direct testimony, he’s already requested it, and you will give him a copy of that statement. The same will apply to Mrs. Keith. Mrs. Keith is the victim, is that correct.”

The state’s first witness was the victim and her direct .testimony did not involve any description of the assailant regarding height, weight or color complexion. At the conclusion of her testimony, the appellant was not furnished a copy of any statement she had made. The victim testified on cross-examination that she had not supplied any description of the assailant to law enforcement officers. However, after Sheriff Hunter testified on direct, appellant again sought to discover the Sheriff’s notes. The court reviewed the Sheriff’s files and extracted a copy of the victim’s statement made to the Sheriff. Moreover, the Sheriff, after reviewing the notes, admitted that the victim had given him a description of the assailant. This information was in the Sheriff’s file and this description was vital evidence tending to negate the guilt of the appellant. Not only was this information not supplied to the appellant, after his written motion for disclosure, but it was not furnished to appellant even after the victim had testified on direct. Moreover, it is further clear from this record that the victim had previously stated that the assailant wore a jacket that had short sleeves while witness, Mrs. Monk, who testified for the state, stated that the sleeves were long. This information was not known to the appellant since it was not disclosed prior to trial.

Rule 17.1 o.f Arkansas Rules of Criminal Procedure, provides, in material part as follows:

“RULE 17.1 Prosecuting Attorney’s Obligations.
(a) Subject to the provisions of Rules 17.5 and 19.4, the prosecuting attorney shall disclose to defense counsel, upon timely request, the following material and information which is or may come within the possession, control, or knowledge of the prosecuting attorney:
(ii) any written or recorded statements and the substance of any oral statments made by the defendant or a codefendant;
(d) Subject to the provisions of Rule 19.4, the prosecuting attorney shall, promptly upon discovering the matter, disclose to defense counsel any material or information within his knowledge, possession, or control, which tends to negate the guilt of the defendant as to the offense charged or would tend to reduce the punishment therefor.” (Emphasis supplied)

We are persuaded that Rule 17.1 imposes a duty upon the state to disclose to defense counsel, upon a timely request, all material and information to which a party is entitled in sufficient time to permit his counsel to make beneficial use thereof. Any interpretation of Rule 17.1 to the contrary would indeed make a farce of a rule which has as its purpose to reduce delays during trial and taken as a whole lending more conclusiveness and completeness in the disposition of criminal cases and disclosure, indeed, alleviates docket congestion and permits a more economical use of judicial resources. It seems clear that disclosure in advance of the trial does not create any risks for the state inasmuch as any improper use of the disclosed material is virtually impossible.

We are further persuaded that appellant was not only entitled to the written transcription prepared by the state from the recorded statements, but appellant was entitled tp discover the tapes not only because the tapes represented the best evidence, but without the tapes, appellant had no way of comparing the transcription in order to determine if the transcription was a correct reproduction of the recordings. Indeed, the statement as well as the tapes would have been most helpful to appellant in his cross-examination of state’s witnesses.

We have reviewed the record carefully and conclude that the evidence contained in this record is sufficient to corrobórate the testimony of Alvin Harris, an alleged accomplice, to support thejury’s verdict of guilty. We make this observation in order to avoid any misunderstanding as to this Court’s position on this issue in the event of a retrial of this case.

Reversed and remanded.

      Rule 19.4 provides:
      Upon a showing of cause, the court may at any time order that specified disclosures be restricted or deferred, or make such other order as is appropriate, provided that all material and information to which a party is entitled must he disclosed in time to permit his counsel to make beneficial use thereof. (Emphasis supplied)


author: George Rose Smith, Justice.

text:
    Jim BYRD v. Karen JONES, Admr. of Ark. Alcoholic Beverage Control Division et al
    77-352
    565 S.W. 2d 531
    Opinion delivered May 8, 1978
    (Division I)

      Brown, Compton & Prewett, by: James M. Pratt, Jr., for appellant.

      John W. Bailey and Shackleford, Shackleford & Phillips, for appellees.
   George Rose Smith, Justice.

In Hewitt v. Gage, 257 Ark. 579, 519 S.W. 2d 749 (1975), we pointed out that there are two methods of appealing from a decision of the Alcoholic Beverage Control Commission. One method was created by the Thorn Liquor Law of 1935, which provides that the appeal is tried de novo in the circuit court. Ark. Stat. Ann. § 48-311 (E) (Repl. 1977). In Hewitt we held that when the appeal is taken under that statute the record made before the ABC Commission is immaterial, because the case is tried de novo in the circuit court. The alternative method of appeal was created by the Administrative Procedure Act of 1967. Ark. Stat. Ann. § 5-713 (Repl. 1976). That statute provides that the review shall be confined to the record made before the administrative agency, except that the circuit court may, upon certain conditions, allow the record to be supplemented by additional evidence.

The present appeal is from an order of the circuit court affirming the action of the ABC Commission in granting, over the appellant’s protest, the application of the appellee Betty Ruth Spires for permission to open a new retail liquor outlet in Union county. This appellant, in appealing to the circuit court from the Commission’s decision, asserted that “in accordance with Ark. Stats. Annotated Section 48-31 I (E) |the provision we have cited from the Thorn Liquor Law| this appeal should be tried de novo.” That request for a dc novo trial was repeated in the appellant’s prayer for relief in the circuit court. As we have indicated, however, there was not in fact a trial de novo in the circuit court.

For reversal it is now argued, solely, that the ABC Commission failed to make the findings of underlying facts that are required by the Administrative Procedure Act. § 5-710 (b); Ark. Sav. & Loan Assn. Bd. v. Central Ark. Sav. & Loan Assn., 256 Ark. 846, 510 S.W. 2d 872 (1974). If is certainly true that such findings should have been made, because the ABC Commission is not an agency excepted from the Administrative Procedure Act and is therefore subject to its provisions. § 5-701. But the appellant did not choose to seek a reversal in the circuit court for the insufficiency of the Commission’s findings. Instead, he expressly stated in his petition for review that the case should be tried de novo under § 48-311 (E). Moreover, he further showed his intention of pursuing the Thorn Liquor Law appellate procedure by offering testimony in the circuit court without having made the showing required by ,the Administrative Procedure Act. § 5-713 (0.

The distinction between the two methods of appeal is more than a mere matter of procedure. Under our decision in Ark. Sav. & Loan, supra, the ABC Commission’s failure to make specific findings of fact would have resulted, upon appeal to this court, in a remand to the Commission to give it an opportunity to make the necessary findings. The case might then have been again appealed to the circuit court, and to this court, for a determination of whether the Commission’s findings were supported by substantial evidence. That protracted procedure might well have consumed 18 months or more before a decision upon the merits was finally reached. The ultimate issue would probably have been whether the Commission’s decision, based on the testimony that it heard, was supported by substantial evidence. § 5-713 (h).

By contrast, the appellant chose to seek an immediate decision, under the Thorn Liquor Law, by asking for a trial de novo in the circuit court. Under that procedure the record made before the Commission, and therefore its decision, were not controlling, because the entire case was to be tried anew. We think the appellant should be bound by his decision to follow one procedure rather than the other. To say the least, there was no request in the circuit court that the appellant be allowed to change his procedure (assuming that such a request would have been appropriate). As far as we can see, the circuit court’s decision was correct on the question that was presented to it. We are unwilling to reverse the court’s judgment on the ground that it should, without any request having been made, have treated the appeal as having been taken under the Administrative Procedure Act and have then reversed the Commission’s decision on the ground that the necessary findings of fact had not been made.

Affirmed.

We agree.

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


text:
    Charles Bruce NABORS v. STATE of Arkansas
    CR 77-236
    565 S.W. 2d 598
    Opinion delivered May 8, 1978
    (Division 1)
    [Rehearing denied June 12, 1978.)

      Russell Reinmiller, for appellant.

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

The jury sentenced the appellant to 17 months’ imprisonment upon a charge of theft of property. Three points for reversal are argued.

First, the appellant, in the course of being apprehended by police officers a few hours after the burglary out of which the charge arose, suffered two shotgun wounds. One of the shots was apparently fired by Officer Keith Rounsavall. Before the trial the defense sought a subpoena duces tecum for the production by the police department of Officer Rounsavall’s personnel records. The defendant’s theory was that the personnel records might supply a basis for cross-examination with respect to the officer’s credibility, the suggestion being that the officer’s “past shooting record” might be useful to the cross-examiner. The abstract contains no allegation that the officer in fact had a past shooting record.

The court was right in denying the application for a subpoena duces tecum. The point was discussed in detail in a similar New York case, where there was also an application for a subpoena duces tecum for the production of the personnel records of police officers. People v. Coleman, 75 Misc. 2d 1090, 349 N.Y.S. 2d 298 (1973). The court pointed out, with supporting citations, that such a subpoena may not be used for the purpose of discovery or to ascertain the existence of evidence. Rather, the purpose of the subpoena is to require the production of documents and other items that may assist in the development of testimony. As the court there said: “Where it is apparent that a party does not intend or cannot hope to offer testimony which refers to the items subpoenaed but merely seeks discovery and inspection, his application should be denied.”. We agree with that view.

Second, the prosecution’s theory was that the burglary (of Kraftco hardware store) was committed by four persons, three of whom were inside the store and the fourth outside in a car as a lookout. The State’s proof tended to show that the four men kept in touch with one another, during the progress of the burglary, by means of a CB walkie-talkie inside the store and a CB radio in the car somewhere in the neighborhood. Over the appellant’s objection a police officer was permitted to testify that he had been in the immediate vicinity of the burglary, that he had listened on his police car radio to the burglars’ conversation, and that they had made certain statements which he quoted and which indicated that the appellant was one of the men inside the store.

The appellant argues that the officer’s narration of the burglars’ purported conversation was inadmissible hearsay, because he could not identify the voices of any of the speakers. It is settled, however, that the authentication of a speaker’s voice may be shown by circumstantial evidence, such as the situation in which a communication received by telephone “reveals that the speaker had knowledge of facts that only X would be likely to know.” McCormick on Evidence, § 226 (1972). The Uniform Rules of Evidence give several similar examples of the circumstantial identification of voices. Ark. Stat. Ann. § 28-1001, Rule 901 (b) (6) (Supp. 1977).

Here there was an abundance of circumstantial evidence to support the trial judge’s decision to admit the testimony about the burglars’ conversation. Several police units cooperated in following the course of the burglary as it occurred, although they evidently did not know exactly where it was taking place. The appellant had been seen shortly before the burglary, leaving a residence in a particular car in company with three or four other men. That car was followed by a police unit to a point within a few blocks from Kraftco. There the police temporarily lost contact with it, and all the occupants except the driver left the vehicle. The car had a CB radio. After the burglary the car was again spotted by the police. A high-speed chase followed, the result of which is not shown by the evidence.

The appellant, according to the State’s theory, did not leave the scene of the burglary in the car identified by the police. Instead, he and another man drove away in a Kraftco truck filled with stolen merchandise. It was their intention, according to the monitored conversation, to meet the other two “at the spot.” That plan was evidently thwarted by the officers’ pursuit of the other car. After a few hours the appellant and his companion went back to the residence where the appellant had first been observed, parked the Kraftco truck nearby, and walked up to the residence. There the waiting police officers confronted them. When the two suspects tried to flee, the appellant was shot twice and fell to the ground. The key to the Kraftco truck was found underneath him. A CB walkie-talkie was found in the yard nearby. The radio was set on Channel 12, which was the channel used by the suspected burglars in their conversation. We need not narrate the State’s proof in greater detail to show that the trial judge was fully warranted in finding from the circumstances that the monitored conversations were sufficiently authenticated to be admissible. Needless to say, their ultimate weight was a matter to be determined by the jury.

We have considered the appellant’s third contention for reversal, but do not find it of sufficient merit to warrant discussion.

Affirmed.

We agree.

Harris, C.J., and Fogi.eman and Hoi.t, JJ.


author: John A. Fogleman, Justice.

text:
    Betty FERGUSON v. Nancy GRADDY
    77-348
    565 S.W. 2d 600
    Opinion delivered May 8, 1978
    (Division I)
    [Rehearing denied June 12, 1978.]

      Warren E. Dupwe, for appellant.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   John A. Fogleman, Justice.

Betty Ferguson brought suit against Nancy Graddy seeking recovery for personal injuries suffered when Mrs. Ferguson was struck by an automobile driven by Mrs. Graddy, when Mrs. Ferguson was crossing East Matthews Street in Jonesboro, in a pedestrian crosswalk at the entrance to St. Bernard’s Regional Medical Center. The trial resulted in a jury verdict in which fault was apportioned, 51 percent to Mrs. Graddy and 49 percent to Mrs. Ferguson, and the plaintiff’s damages fixed at $10,230. Appellant seeks reversal on three grounds. We find no merit in any of them and affirm.

The first ground is an assertion of error on the part of the trial judge in refusing to permit appellant to show that there was a speed limit sign near the scene. Appellee presented a motion in limine asking that appellant not be permitted to produce evidence pertaining to this sign. Appellant offered to prove that there was a sign bearing the words “Speed Limit 15” facing traffic approaching from the direction Mrs. Graddy did. It was stipulated that there was no ordinance regulating vehicular speed in the area. Appellant offered this evidence, not for the purpose of showing the speed limit at the point, but to show that Mrs. Graddy was not keeping the proper lookout. There was evidence that, when struck, Mrs. Ferguson was in the middle cross-walk of three in front of the hospital. There were four posts at each cross-walk five to eight inches in diameter placed four to six feet apart. There were two signs facing the direction from which Mrs. Graddy approached bearing the words “Stop Watch for Pedestrians.” Skidmarks to the rear of her automobile as it was stopped measured 44 feet 4 inches. The speed limit sign was some 270 feet from the middle cross-walk in which Mrs. Ferguson was struck.

Even though we cannot say that evidence of this sign was totally irrelevant to the question whether Mrs. Graddy was properly attentive and maintaining a proper lookout, we are unable to say that exclusion of the evidence was improper. The question whether Mrs. Graddy was negligent in driving at a speed greater than was reasonable and prudent under the circumstances was also an issue for the jury’s determination. Evidence pertaining to this sign, under these circumstances, would be calculated to mislead the jury on the issue of speed and the danger of unfair prejudice on this account would substantially outweigh the slight relevance it would have had on the lookout issue. We cannot say that the trial court erred in this respect. Ark. Stat. Ann. § 28-1001, Rule 403 (Supp. 1977).

Appellant also contends that the court erred in excluding from the jury evidence of payments of $8,020.34 made to her on behalf of Mrs. Graddy prior to trial. She argues that these payments were made an issue of fact by the pleadings and were an admission of liability. Appellee had alleged, in an amendment to her answer, that this amount had been paid on her behalf for medical expenses and loss of wages due to appellant’s injuries and that, if any judgment was entered against appellee, credit should be given for these payments. In reply, appellant alleged that the amendment to appellee’s answer was an admission of liability, denied the payments, demanded strict proof and asserted that if appellee were to prove such payments, the amount should not be set off against a judgment, but should be presumed to have been taken into consideration by the jury in arriving at its verdict.

A hearing on the question was held in camera. Appellant testified that she received checks totalling $8,020.34 from one Wayne Keaton, on behalf of MFA, paid in behalf of Nancy and Mike Graddy. She understood the recitations in the receipts she signed that these payments were to be credited to the total amount of any final settlement or judgment in her favor for damages arising from the accident. Thus there was no real issue of fact, as to the amount of payments or the stipulation as to the condition under which they were paid, in spite of the formal denials in the pleading filed by Mrs. Ferguson. Mrs. Ferguson did say, in response to leading questions, that she understood at the time she signed the receipts that Mrs. Graddy was liable for the payments and that MFA Insurance was her automobile insurance carrier. This question and response followed:

Q. And was this the same man that brought these payments out to you who told you that it was all Mrs. Graddy’s fault and that she was liable?
A. Yes, he did.

There is no evidence whatever that Wayne Keaton was authorized to make admissions on behalf of appellee. No evidence that there had been any admission of liability was proffered at the trial. At the in camera hearing, appellant only asserted that the handling of the matter of payments in this manner was prejudicial to her in that she had been prevented from showing “all the facts relative to the case, including examination of certain witnesses who were acting and presenting themselves as agents of the defendant.” If there were admissions of liability by authorized agents of appellee, this procedure did not necessarily prevent appellant from presenting evidence of them. No such witnesses were called by appellant.

It is not contended the receipts for payments signed by appellant contained any admission of liability. Only one of them mentioned Nancy Graddy and it recited that the payment was made on behalf of Michael and Nancy Graddy. The others recited payment on behalf of either Mike or Michael Graddy. Furthermore, it is not contended that the payments were made in response to any demand by appellant. So far as this record discloses they were purely voluntary. Appellee’s motion, which was granted after the hearing in camera, was that no mention be made by either party during the course of the trial of the payments for lost earnings and medical expenses, particularly as an admission of liability. We do not take the granting of this motion to have prohibited any evidence of an admission of liability other than the payment of money itself, if the admission were made by someone authorized to do so.

Appellant has not shown, to our satisfaction, any reason why Ark. Stat. Ann. § 28-1001, Rule 409 (Supp. 1977) is not controlling in this case. It makes evidence of payments, such as those made here, inadmissible to prove liability for the injury. There are good reasons for such a rule. See II Wigmore on Evidence 159, § 283a (and Supp. 1977). Annot. 25 ALR 3d 1091, 1092. A very good reason is that it is to the best interest of society and in keeping with the mores of the community that humanitarian and benevolent instincts not be hobbled by the hazard that assistance to an injured person be taken as an admission of liability in a personal injury action, when even lawyers and judges experience great difficulty in agreeing on such questions. See Meegal v. Memphis Street Railway Co., 34 Tenn. App. 403, 238 S.W. 2d 519, 20 ALR 2d 286 (1950). The amounts paid here could not have been recovered by appellee if the jury had held that she was not liable. See Edwards v. Passarelli Bros. Automotive Service, Inc., 8 Ohio St. 2d 6, 37 Ohio Ops. 2d 298, 221 N.E. 2d 708, 25 ALR 3d 1087 (1966) and Annot. 25 ALR 3d 1091. As a matter of fact, the payments here will exceed the judgment in favor of appellant and no effort has been made to recover the excess.

Appellant also contends that the trial court erred in denying her motion for new trial. That motion was based upon the fact that the amount of the verdict equals the exact amount of appellant’s medical expenses of $3,080 and lost wages of $7,150. Thus, says appellant, the jury refused to award damages for permanent injuries, past and future pain and suffering, and for a scar, in spite of the fact that evidence concerning these matters was undisputed and the jury was properly instructed that damages for these items were recoverable. Appellant relies upon such cases as Tompkins v. Duncan, 255 Ark. 491, 501 S.W. 2d 210 and Law v. Collins, 242 Ark. 83, 411 S.W. 2d 877, as authority for the granting of a new trial where the jury has refused to award damages for compensable items. In order to sustain appellant’s position, it would be necessary for us to conclude that the jury did award $7,150 for lost earnings. This may be the case, but on the record before us the matter is certainly not beyond question.

The evidence disclosed that, at the time of the injury, Mrs. Ferguson was earning $2.75 per hour and that she worked a 40-hour week. Her treating physician testified that he released her to return to work on March 1, 1976. She was unable to work only 47 weeks. There was testimony tending to show that upon her release, she was offered three different positions by her employer at the time of the injury at the same wage scale she had been paid previously. If the jury-found that she lost no wages except for this 47 weeks, the total loss would amount to $5,170. If so, the total pecuniary loss amounted to $8,248.00 rather than $10,230. We cannot say that the trial court erred in denying a new trial.

The judgment is affirmed.

We agree.

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


text:
    Jack WHITMORE v. STATE of Arkansas
    CR 77-126
    565 S.W. 2d 133
    Opinion delivered May 8, 1978
    (Division II)

      John Barry Baker, Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Robert J. Govar, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant, who was found guilty of the crimes of carnal abuse in the first degree and rape, challenges the judgment of conviction on two grounds. He contends that the trial court erred in overruling his motion to suppress an incriminating statement made by him and that the evidence was insufficient to support the verdict on the charge of rape. We find no error and affirm.

The basis for his argument relating to the motion to suppress is that the trial judge failed to adequately weigh the multitude of factors surrounding the giving of his statement. The factors, or facts, which appellant contends indicate improper conduct which served to exert undue influence on his free will and resulted in a coerced and involuntary statement, which he emphasized in his brief, may be summarized thus: fear of the police; his inexperience in contacts with and observation of police officers; methodical reading by police officers of “Miranda” warnings in an automaton fashion; failure of the police to ask if he wanted to see an attorney until he had been “booked in” after giving two statements; his anxiousness to complete the statements so he could return an automobile to his brother who had to go to work; intimidation by Officer Coffman of the Criminal Investigation Division of the Fayetteville Police Department; implied promises of leniency by Coffman; the absence of two police officers who had been present during the taking of appellant’s first statement while Coffman was coercing appellant to give a second statement; failure of the police to use tape recording equipment; conflicts in the testimony relating to the police officers who were present when appellant’s second statement was given; and his state of shock at having been placed in a jail cell before he inserted an additional sentence in his second statement.

It might well be that if the existence of all those factors was beyond dispute, and no others were involved, we should say that the statement was involuntary. But we must make an independent determination of the voluntariness of the statement based upon the totality of the circumstances, reversing the finding of the trial court only if it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515.

Appellant was a physical education instructor at Bates Elementary School in Fayetteville, where he was attending the University of Arkansas. He was 19 years of age. He was accosted at about 10:30 or 10:45 a.m. on August 25, 1976, at a sporting goods store by Sgt. Bill Brooks of the Fayetteville Police Department, Investigator Doug Fogley of the Arkansas State Police and Officer Coffman. They asked him to come with them to the police station. The officers testified that they told Whitmore that there had been allegations accusing him of indecent acts and related some of the conversations about these acts while on the way to the police station. Whitmore was taken to the criminal investigation office of the Fayetteville Police Department, where he was advised by the officers that he had been accused by the párents of two young males regarding his sexual involvement with these youths and that these officers were investigating these charges. T here is little room for doubting that Whitmore was fully informed about the charges that were under investigation.

Whitmore admitted that one of the officers read “some rights” to him at an office at the police station, but said that he could not recall what they were, because he was in a hurry to return the automobile in which he had gone to the sporting goods store to his brother who was supposed to be at his place of employment at 11:00 a.m. He acknowledged that he had signed a waiver of rights. Officers Coffman and Fogley testified that this instrument contained a recitation of his rights and his recorded acknowledgement of his understanding of them made after Fogley had gone over each of them with him in detail. They said that this was done as soon as they all arrived at the police station and went into the criminal investigation division office. Brooks was not present at this time but was present when Whitmore’s statements were made.

Whitmore testified that he signed two or three papers, but when the officers were reading, his mind was “off,” thinking of the trouble he was in and of getting the car home. He couldn’t say that he made the responses shown as recognition of his understanding of his rights and couldn’t say that he didn’t. He could not be sure whether the officers told him about .his right to have a lawyer present, but was positive that none of the police officers asked him if he wanted to call a lawyer or if he wanted to call anyone. He denied knowing what “right to waive” meant, but said that he knew that waive meant to give up the right and that he thought it means “just that you give up the right if you start talking to them.” He admitted that he understood two or three of the rights. He said that he had not read any of the two or three papers he signed and thought the officers told him to look them over and sign them, but couldn’t remember them telling him to read any of the several “pieces of paper.” In spite of his saying that he signed these papers readily because he was trying to get the car back to his brother, he later said that he thought that the officers were going to put him in jail when they first came up to him and said something about a delicate matter down at the school. When asked about specific items in the first statement, made in the presence of all three officers, he could remember having made practically all the non-incriminating statements attributed to him, saying that they were made in response to specific questions by the officers; however, he denied having made any statement that tended to be incriminating. He not only admitted that the signature and date at the end of the page were in his handwriting, but admitted having signed this statement; however, he denied having read it, saying that the officers had told him to look it over and sign it.

Whitmore thought he had signed a second, more incriminating statement. He said that this statement was made to Officer Coffman, after Brooks and Fogley had left the room to get some coffee. He said that after they left, Coffman shut the door, got up on the desk, pounded on it, demonstrated what he thought of the first statement by throwing it in the trash and said, “I want another story right now. You are not going to leave here until I get it. I want another, because everything you said in there — wasn’t any of it true.” Whit-more said that Coffman had said that if he made the statement he could go home and Coffman would just put it in the file, and it never would get to court. Whitmore said that his main objective had been to get out of the office, because he was already late, and that he had understood Coffman to mean, although Coffman had not said so, that if he explained exactly what happened to those kids at what times, he could leave. Again Whitmore could recall the less incriminating portions of this statement, which was typed by Coffman, who was asking Whitmore questions as he went along. Whitmore either denied or could not remember making the incriminating ones. He admitted that the typed statement bore his signature, but said that he could not remember placing it there, that he had never seen the statement until shown it by his attorney in the attorney’s office and that when Coffman had quit typing, the other officers had come in and Coffman had said, “Well, I Finally got a statement out of him.” Whit-more said that the officers then placed him in a jail cell and he went into shock. Because of this he said that he could not remember writing a sentence interlined in the second statement and did not remember seeing it until he saw it in his lawyer’s office, although he admitted that it appeared to be in his handwriting.

Whitmore testified that he had been so frightened when the officers came up and started talking to him that he was shaking all over and “almost passed out. ” On the other hand, Officers Coffman and Brooks, when called as witnesses for appellant, testified that Whitmore seemed about as nervous or apprehensive as any person would be when confronted with being taken to the police station or informed of accusations of this nature.

The evidence on behalf of the state was quite different from that of Whitmore in many respects. Even Whitmore admitted that the Officers Brooks and Fogley were courteous to him, except for using profanity and that Coffman was the only one who gave him “a bad time,” referring to what he said took place between the two statements in the absence of Fogley and Brooks. Coffman and Brooks both testified that Coffman fully advised Whitmore of his rights when he entered the police car and that Whitmore made no comment. Coffman, Brooks and Fogley all testified that Fogley reviewed the “Miranda” rights with Whitmore as soon as the parties went into the criminal investigation office. They also said that before Whitmore was ever questioned, he had signed a record showing his affirmative answers to separate questions as to whether he understood each of his rights. At this time, according to Coffman, Fogley elaborated upon the accusations against Whitmore, giving him the names of the complainants, the parents of the youths said to be involved and asked Whit-more if he desired to give his side of the story, saying that children sometimes made allegations against adults that are untrue. Whitmore’s statement was then recorded by Fogley as given by Whitmore, largely in response to questions by Fogley, according to all three officers. This statement, they said, was completed about 15 or 20 minutes after the explanation of rights.

All the witnesses agree that Brooks and Fogley left the office to go get coffee after the first statement was signed and that they were absent for 15 or 20 minutes. Coffman’s version of what happened during these few minutes was quite different from Whitmore’s. Coffman testified that, he had stated that he did not believe the entire statement, and that he felt that Whitmore had left out part of the incidents and that he did not think Whitmore was telling the entire truth. Coffman also testified that he told Whitmore if the case went to trial and it was proven that he had lied in his statement or in any statement he made in court, it would look bad to the judge and jury, and, if he was going to admit being in a compromising situation with these boys, he should either tell the truth or make no statement at all until he talked with an attorney, because his life could be ruined. Coffman said that he also told Whitmore that the statement he had made, or any statement he made, would be presented to the prosecuting attorney’s office, and that the prosecuting attorney would decide whether there was sufficient evidence to file charges. Coffman related that Whitmore at first said that his statement was correct and that he had not left anything out, but later admitted that he had left out certain aspects of the incidents and agreed to give a different statement. Coffman stated that he questioned Whitmore about his involvement in the allegations made by the alleged victims and that Whit-more had made several statements when Fogley and Brooks returned to the room and were advised by Coffman that Whitmore desired to change his statement. According to the testimony of the three officers, a new form was used by Coffman, who typed Whitmore’s statement on it. Coffman testified that Fogley read this statement to Whitmore and that Whitmore agreed to it. Coffman said it was then handed to Whitmore, who signed it, after having appeared to have read it and having initialed typing errors at Coffman’s request. Furthermore, Coffman testified that, before Whitmore made his second statement, Coffman had handed him the form on which the statement was later recorded, stating that he was again advising Whitmore of his rights and asked him to read the form on which a recitation of his rights was printed. Coffman said that Whitmore had read the statement which included an acknowledgment that he understood it and signed it.

Fogley testified that, after the second statement was completed and signed and Whitmore placed in a jail cell, an omission was discovered and that he and Brooks went to the cell, where Fogley asked Whitmore about the omission, inquired whether it was all right to insert the matter omitted, and, when Whitmore said “okay,” asked him to write it in and initial it. This was the only part of this statement that was handwritten.

Coffman admitted that the father of one of the alleged victims was an investigator for the University of Arkansas Department of Public Safety and a personal friend with whom he had had many contacts.

The trial judge, in holding the statement voluntary, emphasized the education, academic record and occupation of Whitmore, his clear understanding of the meaning of “waiver,” and the unlikelihood that such a person would have any difficulty in understanding any of the words in which the written explanation of his constitutional rights were couched. The trial judge noted that there were conflicts in some of the testimony.

In viewing the trial judge’s findings, we must, as in every case where witnesses testify before him, defer to his superior position for judging the credibility of witnesses. See Holloway v. State, 260 Ark. 250, 539 S.W. 2d 435, rev’d. on other grounds, 435 U.S. 475, 98 S. Ct; 1173, 55 L. Ed. 2d 426 (1978); Johnson v. State, 249 Ark. 268, 459 S.W. 2d 56; United States v. Thomas, 521 F. 2d 76 (8 Cir., 1975); United States v. Davis, 532 F. 2d 117 (8 Cir., 1976). In considering this matter and giving due deference to the fact that the trial court obviously resolved the questions of credibility against appellant, we find that there are appropriate bases for doubting Whitmore’s credibility. For example, the statement that he could not think of anything that disturbed his mental processes during the two or three hour period involved in the taking of the statements except that he was in a hurry all morning because he wanted to get the car back to his brother. This is a rather implausible explanation for the failure of one with appellant’s education, faced with the serious charges of which he was told, to give attention to the explanation of his rights to remain silent, to have the assistance of counsel, etc., and to grasp their meaning.

Appellant has asserted that in considering the questions pertaining to the voluntariness of the statement, we should consider the testimony of character witnesses who testified in regard to his reputation for truthfulness at the trial. These witnesses did not testify at the suppression hearing. Even though it was necessary for the trial judge to make evaluations of the credibility of witnesses testifying at the hearing on the motion to suppress, he certainly could not be expected to do so on the basis of testimony he had not heard. On appellate review on questions of admissibility of evidence, the trial court cannot be held in error on the basis of evidence adduced after his ruling is made. Barnard v. Keathley, 249 Ark. 346, 459 S.W. 2d 121. See also, Maurice v. Hunt, 80 Ark. 476, 97 S.W. 664. In this case, there was no renewal of the objection to the introduction of the confession or motion to strike it after these witnesses testified.

Appellant also contends that the evidence was insufficient to support the verdict on the rape charge. He was charged with having committed the crime of rape on August 7, 1976, by engaging in deviate sexual activity with Brian Burkhalter, who was then less than 11 years of age. In the context of this case, deviate sexual activity is defined as any act of sexual gratification involving the penetration, however slight, of the anus of one person by the penis of another. Ark. Stat. Ann. § 41-1801 (Repl. 1977). Appellant contends that there was no substantial evidence to show that the crime of rape had been committed, i.e., that there had been any penetration of the anus of Burkhalter by the penis of Whit-more. Since there was a confession, the evidence was sufficient, if evidence other than the confession showed that the crime was committed. Ark. Stat. Ann. § 43-2115 (Repl. 1977); Mosley v. State, 246 Ark. 358, 438 S.W. 2d 311; Pigg v. State, 219 Ark. 879, 245 S.W. 2d 209.

Brian Burkhalter testified that he spent the night at Whitmore’s apartment and slept in the bed with Whitmore. He said that Whitmore gave him some Sleep-Eze pills, saying that they would help him sleep better. Brian testified that, for some reason, he had to get up in the middle of the night because he felt something funny, like grease, coming out of his rear end, so he went to the bathroom and cleaned it off the best he could. This substance, he said, was white and transparent, similar to Vaseline. Brian said that he went back to bed and went to sleep and the same thing happened again, so he got up, because he again felt like he had to go to the bathroom. He said that Whitmore was lying behind him and facing toward him. He said that when he got up, Whitmore threw the covers down. Brian stated that when he went to the bathroom, he found the same thing he had found before. According to the boy, it was then 6:00 a.m. and he called his father by telephone and then rode his bicycle home. He stated that occurrence took place in June or July, but he could not be more specific than to say that, it was the last time he spent the night with Whitmore. Brian’s mother testified that the last time Brian had spent the night with Whitmore was August 7, 1976.

Our decisions have supported the view that penetration in a rape or sodomy case can be shown by circumstantial evidence. Needham v. State, 215 Ark. 935, 224 S.W. 2d 785; Hudspeth v. State, 194 Ark. 576, 108 S.W. 2d 1085. See also, Leasure v. State, 251 Ark. 887, 475 S.W. 2d 535; Havens v. State, 217 Ark. 153, 228 S.W. 2d 1003. The new definition and consolidation of these offenses does not mandate any change. The circumstantial evidence here was sufficient to sustain the verdict, as it gave rise to more than a mere suspicion, and the inference which might reasonably have been deduced from it would leave little room for doubt.

The judgment is affirmed.

We agree.

George Rose Smith and Hoi.t and Hickman, JJ.


author: Frank Holt, Justice.

text:
    Eva PASCALL v. Stanley E. SMITH
    77-102
    569 S.W. 2d 89
    Substitute Opinion on Rehearing delivered June 26, 1978
    (In Banc)
    [Rehearing denied September 5, 1978.]

      Gibson & Gibson, P.A., for appellant.

      James Merritt and George N. Holmes, for appellee.
   Frank Holt, Justice.

Appellee commenced this action to quiet title in certain land, which he held as a tenant by the entirety with his divorced wife, on the ground that he had acquired title of the property by adverse possession. Alternatively, he sought partition or sale of the land. At the close of appellee’s evidence on his claim of title by adverse possession, appellant demurred to the evidence on the basis that the appellee failed to prove the date upon which any alleged actual notice was communicated to her that he was claiming adversely to her one-half interest. The court overruled the demurrer. Appellant appealed that order to this court and we dismissed it without prejudice because the order was not appealable. Pascall v. Smith, 262 Ark. 523, 558 S.W. 2d 150 (1977). Upon remand appellant elected to stand on her demurrer to the evidence. The chancellor overruled the demurrer and awarded the property to the appellee on the basis of his claim of adverse possession. Appellant first asserts the court erred in failing to sustain her demurrer to the evidence.

Appellant argues the primary issue on this appeal is: “[M]ust the appellee, in order to present a prima facie case, offer some proof as to the date or time when the appellee [as cotenant] placed the appellant on actual notice that he was claiming adversely?” Appellant asserts that the appellee failed to make a prima facie case for adverse possession because there was no evidence adduced as to when actual notice of his adverse claim was made known to appellant.

In order for adverse possession to ripen into good title, the possession must have been for a period of seven years after the cause of action has accrued. Ark. Stat. Ann. § 37-101 (Repl. 1962). Here the property in question was originally acquired by the appellee in 1928. He built a house on the property in 1948. In 1963, a few months after he and appellant were married, he conveyed the property to himself and her to hold as tenants by the entirety. Appellee, now seventy-six years old, testified that he had been in active and exclusive possession since the divorce or for the past nine years. Aside from living on the property, he maintained it and operated his business there. His possession was open and visible to the public in general as well as his business customers. He had held out to everyone including appellant that he was the owners of the property, and the property was generally referred to by the people in town as his “home and property. ” Other witnesses testified that appellee had made improvements on the property and they verified that appellee was considered by the community to be the sole owner of the property. Appellant had not claimed any interest in the property during this nine year period. Since their divorce she had remarried and resided within eight miles of the premises in dispute. During this time it appears she came on or about the premises twice. The first time she was told: “Now, there’s the door right there.” “You go out of it” and to stay off the premises. On the next occasion he reminded her to “stay off this property,” not to come back “[a]nd she hadn’t.” On the first occasion the subject of the death of the county sheriff, who was known to both of them, was discussed. Appellee could not recall the exact date.

In our original opinion, we took judicial notice of the Secretary of State’s official records, which establishes the date of the sheriff’s death as February, 1966, or approximately one year after the parties ’ divorce. Appellant correctly contends in her petition for rehearing that in this fact situation this was impermissible since judicial notice of this fact was not raised in the trial court. See Ark. Stat. Ann. § 28-1001, Rule 201 (Supp. 1977). A demurrer to the evidence involves a question of law as to the sufficiency of the evidence, and in ruling upon the motion, the chancellor is not to weigh the evidence but is to construe the evidence in the light most favorable to the plaintiff and rule against him only when the evidence fails to make a prima facie case. Pierson v. Barkley, 253 Ark. 131, 484 S.W. 2d 872 (1972); and Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225 (1950). Here we hold that the evidence, when viewed most favorably to appellee, as we must do on appeal, did not make a prima facie case that appellant, a co-tenant of an estate by the entirety, was sufficiently put on notice of appellee’s adverse claim of possession. See McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714 (1960); and Spotts, Adm’x v. Lewis, 243 Ark. 272, 419 S.W. 2d 622 (1967).

However, we cannot agree that the chancellor erred in permitting the direct examination of appellee to be conducted by leading questions. Ark. Stat. Ann. § 28-1001, Rule 611 (c) (Supp. 1977) permits leading questions on direct examination “as may be necessary to develop his testimony.” Here the court, in overruling appellant’s objection, stated he was aware the witness was being asked leading questions “but at the same time this witness is elderly and can’t hear too well and I am allowing a little bit more leeway in leading than I ordinarily would.”

As indicated, the chancellor erred by overruling the demurrer. Reversed and remanded for further proceedings. See Ark. Stat. Ann. § 27-1729 (Repl. 1962).


text:
    Mrs. Russell L. MERRITT et al v. J. W. Merritt et al
    77-357
    565 S.W. 2d 603
    Opinion delivered May 8, 1978
    (Division II)
    [Rehearing denied June 12, 1978.]

      Eugene J. Mazzanli, for appellants.

      Charles A. Walls, Jr., for appellees.
   Darrell Hickman, Justice.

This appeal is affirmed because we find the abstract of the record to be flagrantly deficient in violation of Rule 9(e)(2). The appellants did not abstract any of the trial records or testimony in their brief. The appellees abstracted some of the testimony. However, if can be safely said the evidence abstracted by the appellees is favorable to their position. The appellants apologized in their reply brief for not complying with Rule 9 and offered an abstract of the records and testimony. However, an abstract in the appellants’ reply brief is improper. We recently affirmed a case for a similar violation of Rule 9. Weston v. Ponder, 263 Ark. 370, 565 S.W. 2d 31 (1978).

Affirmed.

We agree.

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


text:
    Susan Lynn CROWDER et al v. Carl FLIPPO et al
    77-358
    565 S.W. 2d 138
    Opinion delivered May 8, 1978
    (Division II)

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      Patterson & Welch, by: Morgan E. Welch, for appellees.
   Darrell Hickman, Justice.

The only issues on appeal of this circuit court involving an automobile accident is whether the trial court abused its discretion in granting a new trial.

This case was tried before a jury that returned a verdict refusing to award any of the parties damages. The appellees filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial. The grounds set forth in the motion were that the verdict could not be supported by the evidence. The trial court set aside the verdict and granted a new trial because it was convinced an improper instruction had been given. The appellants argue on appeal that the trial court exceeded its authority because there was no objection made to the instruction at the time it was given. We agree.

Trial courts have broad discretion in granting new trials. Security Insurance Co. v. Owen, 255 Ark. 526, 501 S.W. 2d 229 (1973). The authority for such action is contained in an Arkansas statute which sets forth the grounds or reasons for setting aside a verdict. Ark. Stat. Ann. § 27-1901 (Repl. 1962). The only reason stated in the motion was that the verdict was not supported by the evidence. The trial court, on its own, decided that an instruction given was erroneous. However, it is undisputed there was no objection to the instruction at the time it was given. An erroneous instruction is an error of law. Since the statute requires that errors of law be objected to by the party at trial, the granting of a new trial in this case was improper.

Therefore, we feel that the trial court abused its discretion and, consequently, reverse its decision.

Affirmed.

We agree.

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


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY v. O. M. GOODING
    77-326
    565 S.W. 2d 421
    Opinion delivered May 15, 1978
    (In Banc)

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellant.

      Friday, Eldredge & Clark, by: Overton S. Anderson; and Kincaid, Horne & Trumbo, by: Hugh R. Kincaid, for appellees.
   George Rose Smith, Justice.

The principal question in this case is one of insurance coverage. In 1975 the appellant, Southern Farm Bureau, issued a $10,000/$20,000 policy of automobile liability insurance to the principal appellee, O. M. Gooding, a farmer. The policy specifically covered nine described automobiles and trucks, but it made no reference to a lowboy trailer owned by Gooding.

In November, 1975, Ivan Gooding, also an insured, was driving one of the described trucks on a highway. The truck, by means of its fifth wheel, was pulling the lowboy, upon which a bulldozer tractor was being transported. As Ivan allegedly drove too fast around a curve the chains holding the bulldozer gave way, so that the bulldozer was thrown into the path of an oncoming vehicle being driven by Donald B. Hawksley. Hawksley was injured.

Hawksley brought a $75,000 personal injury suit against the Goodings. Upon Southern Farm Bureau’s denial of coverage, the Goodings filed a third-party complaint against Southern Farm Bureau and also against the insurance agent, Joe Rodman, who wrote the policy. It was alleged that Rod-man had represented to the Goodings that trailers and lowboys would be covered when being pulled by an insured vehicle. Eventually Southern Farm Bureau and Rodman filed counterclaims against each other, each insisting that the other was liable for any possible recovery by Hawksley.

The two branches of the case were tried separately. At the first hearing, submitted largely on stipulations, the court determined that Southern Farm Bureau’s policy protected the Goodings, up to $10,000, against liability for Hawksley’s injuries. At the second trial, two weeks later, a jury returned a $10,000 verdict for Hawksley. The court’s final judgment included the $10,000 award in favor of Hawksley against the Goodings, a similar award in favor of the Goodings against Southern Farm Bureau, plus penalty and attorney’s fee, and a S3,538.97 award in favor of Rodman against Southern Farm. Bureau, representing Rodman’s expense and attorney’s fee in defending the Goodings’ claim against him.

The principal question is whether the policy’s failure to describe the lowboy as an insured vehicle exempts the insurance company from liability. Several provisions of the policy are pertinent. First, by the basic insuring clause the insurer agreed to pay on behalf of the insureds, under coverages A and B, claims for personal injuries and property damage “caused by accident and arising out of ownership, maintenance or use of any automobile.” Next, there was this exclusion: “This policy does not apply: (a) Under any of the coverages for automobiles owned by the insured . . unless properly described on the declaration and used for the purposes stated.” Third, there was this definition of an automobile:

“Automobile” means a land motor vehicle, trailer or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto) but for the purpose of Division 1 coverage C only [not involved in this case], an automobile also means a farm tractor or other farm equipment while being operated on public highways.

The trial court was right in construing the contradictory and therefore ambiguous language of the policy in favor of the insured. On the one hand, an automobile is defined to mean a trailer, which would be a basis for excluding coverage of the lowboy, because it was not described in the declaration. On the other hand, an automobile includes “any machinery or apparatus attached thereto.” A dictionary definition of apparatus is: “Any complex instrument or appliance, mechanical or chemical, for a specific action or operation; machinery; mechanism.” Synonyms are listed as: “Equipment; instrument; machine.” Webster’s New International Dictionary (2d ed., 1939). Hence the insureds’ truck, which was described in the declaration, included the lowboy that it was pulling, as being machinery or apparatus attached to the insured truck. This interpretation of the policy is confirmed by still another paragraph, which provides that when two or more automobiles are insured under the policy, the terms of the policy apply separately to each, “but a motor vehicle and a trailer attached thereto shall be held to be one automobile as respects limits of liability under Coverages A and B,” which are involved here. That is to say, if O. M. Gooding had listed the lowboy and paid an additional premium for its inclusion in the policy, he would have obtained no additional protection with respect to Hawksley’s claim, because the limit for both vehicles would still have been only $10,000. Such a result can hardly have been contemplated by the parties to the contract.

Two other points for reversal are argued by Southern Farm Bureau. First, it is contended that the trial court should not have awarded the statutory 12% penalty to the Goodings, because (it is argued) theirthird-partycomplaint against their insurance company was merely a suit for a declaratory judgment, as to which no penalty is provided. Ark. Stat. Ann. § 66-3239 (Repl. 1966). The cited statute applies to suits to cancel or lapse a policy, to change its terms, to obtain a declaratory judgment, or to require the insurer to reinstate a policy. The plain intent of the statute was to amend the prior law by providing an attorney’s fee when the insured prevails in a controversy with his insurance company, but does not actually obtain a money judgment against it. Here, from the outset, the Goodings have sought to obtain protection and reimbursement with respect to any monetary judgment that Hawksley might be awarded in the lawsuit. In the final judgment, now before us, the Goodings did obtain a $10,000 recovery against their insurer. Consequently they were entitled to both penalty and attorney’s fee under Ark. Stat. Ann. § 66-3238. An additional $1,500 attorney’s fee is allowed for counsel’s services in this court.

Second, it is argued that Southern Farm Bureau’s agent, Rodman, should not have been allowed to recover the expenses and attorney’s fee he incurred in defending the third-party complain filed against him by the Goodings. We think the recovery was proper. A principal has a duty to indemnify his agent when the agent suffers a loss which, because of their relation, it is fair that the principal should bear. Restatement, 2d, Agency, § 438 (1958). In particular, the agent can recover the expenses of defending an action brought by a third person because of the agent’s authorized conduct. Id., § 439. If Rod-man represented to the Goodings that the lowboy would be covered while being pulled by an insured vehicle, that representation was correct. Rodman, the agent, was subjected to the expense of litigation because his principal, Southern Farm Bureau, erroneously denied that the coverage existed. In the circumstances it is fair that the principal be required to indemnify the agent for his expenses, including his attorney’s fee.

Rodman asks that a fee be allowed for the services of his attorneys on this appeal, but we can find no basis for such an allowance. In the trial court Rodman did not recover an attorney’s fee for this litigation with his principal. He merely recovered the expenses to which he had been put by his principal, which happened to include an attorney’s fee. The Goodings have not appealed from the judgment in favor of Rodman upon their complaint against him. Consequently, upon this appeal there has been no issue between Rodman and the Goodings, nor any possibility that a reversal would entail any liability on his part to them. As to Rodman, the only question on appeal has been whether he can recover his prior expenses from his principal. The situation presents no reason for a departure from the general rule that a successful litigant is not ordinarily entitled to attorneys’ fees. Romer v. Leyner, 224 Ark. 884, 277 S.W. 2d 66 (1955).

Affirmed.

Byrd, J., not participating.

Fogleman, J., dissents.

John A. Fogleman, Justice,

concurring in part, dissenting in part. It seems to me that one must overcome great difficulty in finding an ambiguity to resolve against the insurance company’s policy involved in this case. The coverage clause is recited in the majority opinion, along with the exclusionary clause. The meaning of these clauses is governed by the policy definition of “automobile.” The policy definition is set out in the majority opinion. “Automobile” does not have any meaning other than the policy definition. In order to determine the meaning of the policy, one must substitute the policy definition for the word automobile in both the coverage clause and the exclusion. In doing so, we are concerned with no more than Coverages A and B. We then have the following clauses to consider:

Insuring Agreement:
1. Liability — coverages (A) bodily injury, and (B) property damage.
1. To pay on behalf of the insured all sums except punitive damages which the insured shall become legally obligated to pay as damages:
Coverage A — because of bodily injury sustained by any person, and
Coverage B — because of injury to or destruction of property caused by accident and arising out of ownership, maintenance or use of any land motor vehicle, trailer or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto), including loading and unloading thereof.
Exclusions:
This policy does not apply:
(a) Under any of the above coverages for land motor vehicles, trailers or semi-trailers designed for travel on public roads (including any machinery or apparatus attached thereto) owned by the insured.

The definition of “Two or more automobiles” does not affect any question involved here, because, except for limits of liability under Coverages A and B, the terms of the policy apply separately to each at the inception or any renewal date, unless properly described on the declaration and used for the purposes stated.

“Automobile” cannot mean one thing in one clause and another in another. In order to have coverage (A) or (B), the land motor vehicle, trailer or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto) must have been properly described on the declaration in the policy.

The low-boy trailer from which the bulldozer fell and caused the damage to Hawksley was not described in the policy. It does not matter whether it was considered as a trailer or apparatus attached to a land motor vehicle. The policy terms still required listing. The bulldozer was not listed either, if that matters. Thus, it is clear that personal property damages were not covered because of the exclusion. It was stipulated that Hawksley sought recovery for $100 in personal property damages from the Goodings. To reach the conclusion reached by the trial court and the majority eliminates the exclusionary clause.

It appears that O. M. Gooding was the owner of the trailer. Insofar as he is concerned, there was no policy coverage for either personal injuries or property damage. It seems, however, that under the terms of the policy, coverage for personal injuries is not limited to those arising out of ownership, maintenance or use of any “automobile.” It would seem, then, that appellant was obligated to defend Ivan I. Gooding and to pay the judgment against him.

I do not agree on appellant’s liability for the 12% penalty. The amount of the liability was not determined or definite until there was a jury verdict on the other phase of the case. The cross-complaint alleged that “if and to the extent Defendants or either of them, are determined to be liable to the Plaintiff, that Southern Farm Bureau Insurance Company is liable over to the Defendants for the full amount of such Judgment up to the policy limits.” The prayer of an amendment to the cross-complaint was for judgment over against Southern Farm Bureau Casualty Insurance Company, “for the full amount of such Judgment up to the policy limits as aforestated, . . . . ” The portion of the judgment fixing liability of appellant is dated May 17, 1977. The judgment against the Goodings was dated June 1, 1977. This was in keeping with what was actually done. In my opinion, this was a declaratory judgment, at least in substance, if not form.


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    CITY OF SHERWOOD v. DUPREE COMPANY
    77-376
    566 S.W. 2d 746
    Opinion delivered May 15, 1978
    (Division I)

      Bob Dawson, for appellant.

      Lesly W. Mattingly, for appellee.
   George Rose Smith, Justice.

This appeal is from a decree of the chancery court holding that the action of the City of Sherwood, purporting to vacate the last 120 feet of Oneida Street, was arbitrary and therefore invalid. We agree with the trial court.

Oneida is a comparatively short street in a residential subdivision called Indianhead Lake Estates. When the subdivision was platted, the area was under the jurisdiction of the Planning Commission of the City of Jacksonville. At its north end Oneida makes a westward turn and becomes a continuation of Narragansett Street. The appellee, Dupree Company, owns North Lake Subdivision, which lies immediately north of Indianhead Lake Estates. The Jacksonville Planning Commission, in approving the two proposed subdivisions, required that Oneida Street be dedicated as a public street for a distance of 120 feet north of its intersection with Narragansett. The purpose of that 120-foot stub was to carry the street to the north boundary of Indianhead Lake Estates, which is also the south boundary of North Lake Subdivision, thus providing a southern exit for the latter subdivision. The Dupree Company incurred very substantial expense in developing its subdivision on the assumption that the company could continue Oneida Street northward through the subdivision, providing the southern exit required by the Planning Commission.

On September 8, 1976, the City of Sherwood annexed the Indianhead Lake Estates subdivision, thereby taking the area away from the jurisdiction of the City of Jacksonville. Nineteen days later the Sherwood city council adopted Ordinance 311, closing that part of Oneida Street running north from its intersection with Narragansett. The ordinance recited that the action was being taken because through traffic would endanger small children living in Indianhead Lake Estates. The Dupree Company brought this suit for a decree declaring Ordinance 311 to be void and enjoining the city from closing the 120-foot extension of the street.

A city, under a statute almost a century old, has the power to vacate a portion of a street not needed for corporate purposes. Ark. Stat. Ann. § 19-2304 (Repl. 1968). The appellant concedes, however, that the power cannot be exercised in an unreasonable, arbitrary, and oppressive manner. City of Little Rock v. Linn, 245 Ark. 260, 432 S.W. 2d 455 (1968). Hence the controlling issue is whether the City of Sherwood acted arbitrarily in adopting Ordinance 311.

Although the property owner at the dead end of a cul-desac does not have all the rights of a lateral property owner, his right to unobstructed access to the street has been recognized. Johnson v. Town of Watertown, 131 Conn. 84, 38 A. 2d 1 (1944); Royal Transit v. Village of West Milwaukee, 266 Wis. 271, 63 N.W. 2d 62 (1954). That right of access is especially clear in the case at bar, because the 120-foot extension of Oneida Street was required by the Planning Commission for the specific purpose of giving the Dupree Company access to that street. The company incurred great expense in developing its subdivision in reliance upon its continued access to Oneida. In the circumstances the developer’s right of ingress and egress is a property right that cannot be taken away by the city, at least without the payment of just compensation. Flake v. Thompson, Inc., 249 Ark. 713, 460 S.W. 2d 789 (1970). Thus the chancellor was right in concluding that Ordinance 311 was arbitrary and invalid.

Affirmed.

We agree.

Harris, C.J., and Fooi.eman and Hoi.t, JJ.


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    Ray BEST v. Judy WILLIAMS
    77-380
    566 S.W. 2d 133
    Opinion delivered May 15, 1978
    (Division I)
    [Rehearing denied June 19, 1978.]

      Paul K. Roberts, for appellant.

      John F. Gibson, Jr., for appellee.
   George Rose Smith, Justice.

This is a continuation of the partition suit that was before us in Best v. Williams, 260 Ark. 30, 537 S.W. 2d 793 (1976). After that decision the chancellor appointed three commissioners to effect the partition. They recommended that the appellee’s life estate in one third of the total 210 acres be set aside to her as a life estate in a specified 70 acres. Upon objection to the commissioners’ report the chancellor ordered that testimony be heard. After all three commissioners had testified, and after the appellant had offered to allow the appellee to select her life estate in any 70 acres that she chose, the court found that the land could not be divided in kind without great prejudice to the owners. The court ordered that the land be sold by the circuit clerk as the court’s commissioner.

Upon the principal question, the court was right in refusing to accept the commissioners’ recommendation that the land be divided in kind. The recommendation was merely advisory and not binding upon the chancellor. McGehee v. Oxner, 150 Ark. 618, 234 S.W. 989 (1921). Of the total 210 acres, which was in three separate tracts, 150 acres was timberland. The 70-acre tract to be set aside to the appellee for life was primarily timberland. Although one commissioner testified that it was worth as much as cleared land for investment purposes, that is not the proper test when a life estate is involved, because a life tenant cannot sell the timber. McCarroll v. Falls, 129 Ark. 245, 195 S.W. 387 (1917). The chancellor correctly stated after the hearing that to award Mrs. Williams a life estate in 70 acres of timberland would be in effect to award her nothing.

The appellant also argues that the chancellor erred in naming the circuit clerk as the commissioner to conduct the sale. By statute the circuit clerk is designated as the clerk of the chancery court (except in Pulaski County) and as its ex officio commissioner. Ark. Stat. Ann. § 22-441 (Repl. 1962). Even though the partition statute contemplates that the sale be made by the three commissioners, at least when they recommend a sale, Ark. Stat. Ann. § 34-1826 (Repl. 1962), we will not reverse the decree merely because the clerk was appointed to make the sale, no possibility of prejudice being suggested.

Affirmed.

We agree.

Harris, C.J., and Fogleman and Hoi.t, JJ.


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    Signor BERRY, Jr. v. STATE of Arkansas
    CR 78-11
    565 S.W. 2d 418
    Opinion delivered May 15, 1978
    (In Banc)

      Boyd A. Tackett, Jr., for appellant.

      Bill Clinton, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Signor Berry, Jr., was convicted of possession of heroin with intent to deliver and was sentenced to 25 years’ imprisonment and to a $5,000 fine. The two principal points for reversal concern the validity of the search of an automobile and the sufficiency of the State’s proof that Berry’s possession of a minute quantity of heroin was with intent to deliver. We sustain the search, but hold that the State proved possession only, not possession with intent to deliver.

At about 9:15 on the night of December 23, 1976, two Miller County deputy sheriffs were patrolling a county road in an area where narcotic activity had been reported. 7’he officers saw two men (the appellant Berry and Charles Harper) sitting in a Cadillac beside the road. The officers stopped to investigate and were told that the car had overheated and that the men were waiting for it to cool off. The officers were suspicious, but drove on after having written down the Cadillac’s license number.

A mile or two farther down the road the officers investigated a pickup truck sitting off in the woods and arrested its two occupants for the possession of a substantial quantity of marihuana. In searching that truck the officers found a gasoline credit card slip bearing the Cadillac’s license number. The officers inferred a connection between the two vehicles, went back to where the Cadillac was parked, and stopped it as Harper attempted to drive away. As the officers approached with their spotlight fixed on the Cadillac, Berry leaned down and seemed to fumble with something on the floor.

The officers directed Harper and Berry to get out of the car, which was illuminated by the spotlight. One of the officers then looked into the car and saw, on the floorboard on the passenger’s side, an open bank bag containing syringes, white powder, and other things which the officer recognized as paraphernalia used in trafficking in drugs. The bank bag was sitting on a briefcase that was closed but not locked. Both the bag and the briefcase were searched to some extent at the scene and more thoroughly at the county jail. The bag contained the small quantity of heroin that we will describe later. The briefcase contained a loaded pistol and, among other things, Berry’s driver’s license and a card issued to him by the Veterans Administration.

We hold the search of the bag and briefcase to have been valid. The two officers, in view of the facts known to them, had solid reasons for stopping the Cadillac when its driver apparently tried to elude them. The plain-view doctrine came into play when one officer looked into the vehicle and saw what he recognized as narcotics paraphernalia. The officer then had probable cause for believing that other area's in the car might contain contraband. A thorough search of the vehicle was therefore warranted. The officers were justified in searching the briefcase, just as a search of a suitcase was upheld in similar circumstances in United States v. Finnegan, 568 F. 2d 637 (9th Cir., 1977).

The search of the briefcase was not prohibited either by the Supreme Court’s holding in United States v. Chadwick, 433 U.S. 1 (1977), or by our holding in Sanders v. State, 262 Ark. 595, 559 S.W. 2d 704 (1977). In both those cases the courts disapproved, as unreasonable, a warrantless search of luggage in the possession of a person traveling on an interstate journey. For the prosecution it was argued in both cases, unsuccessfully, that the automobile exception to the prohibition against warrantless searches should be extended to personal luggage, by reason of its mobility. Here, by contrast, there is no suggestion that Harper and Berry were on a journey or that the briefcase was clothed with any expectation of privacy on the part of its owner. In Finnegan, supra, the court concluded, upon similar facts:

Were we to rule that Chadwick applies here and renders the search of the suitcase illegal, inconsistent and contradictory results would follow. For instance, a police officer could search and seize a brick of marijuana lying inside the trunk of a car but not a brick of marijuana lying inside a suitcase in the trunk of a car.

In other words, persons having contraband drugs in their possession could prevent a search for such drugs in an automobile simply by carrying the articles in a suitcase rather than in a sack or in a box.

Second, we turn to the State’s proof of possession with intent to deliver. Even though Harper owned the Cadillac, the jury could have found from the facts already narrated that Berry was in possession of the bank bag and briefcase. It turned out, however, that the white powder observed by the officer was merely a substance connected with the drug traffic, as an adulterant, but not itself a controlled substance. The only controlled substance found in the Cadillac was what may be described as a trace of heroin in a bottle cap of the kind that comes with quart containers of soft drinks, enabling the purchaser to reseal the bottle after it has been opened. The State’s proof showed that the bottle cap’s condition indicated that it had been used to heat a quantity of heroin for an injection, with a minute amount of the drug being left on the bottle cap after the heroin had been used.

The Attorney General does not seriously argue that the State proved that Berry could fairly have been found to have intended to'recover and sell the trace of heroin in the bottle cap. Instead, it is argued that the syringes and other paraphernalia showed that Berry was trafficking in drugs. Even so, the prosecution cannot prove possession of drugs with intent to deliver by showing merely that the accused is engaged in selling drugs. The State must prove that the accused possessed a specified quantity of a particular drug with the intent to deliver that drug. That showing has not been made in this case. The conviction for possession of heroin with intent to deliver must therefore be reduced to the lesser included offense of mere possession, which for a Schedule I narcotic drug is a Class C felony punishable by from two to ten years’ imprisonment in the Department of Correction and a fine not exceeding $10,000. Ark. Stat. Ann. § 82-2617 (c) (Supp. 1977); and §§ 41-901 and 41-1101 (Repl. 1977). The sentence is reduced to imprisonment for two years and a fine of $1,000. The judgment is so modified and the cause remanded to the circuit court for the entry of an order conforming to this opinion.

Modified and remanded.

Harris, C.J. would reduce sentence to five years.


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    Walter COLEMAN and SINGER COMPANY, INC. v. Lynwood CATHEY
    77-377
    565 S.W. 2d 426
    Opinion delivered May 15, 1978
    (Division I)

      Wright, Lindsey & Jennings, for appellants.

      Patten, Brown, Leslie & Davidson, for appellee.
   John A. Fogleman, Justice.

Lynwood Cathey, then basketball coach at University of Arkansas at Monticello, was injured when his automobile was struck by a large metal door, which came off a truck owned by Singer Company and driven by Walter Coleman. Cathey filed suit against Coleman and Singer seeking to recover for personal injuries and property damage. Before trial, Coleman and Singer admitted liability for compensatory damages and appellee’s claim for exemplary damages was withdrawn. Appellants assert five points for reversal of the judgment against them. We find merit in two of them and reverse.

Appellee alleged that he had suffered severe injuries to his face, head and eyes of a permanent nature. No specific allegation was made as to loss of future earnings or earning capacity. Cathey’s principal injury was to his eyes. He was mildly nearsighted in each eye before the injury. The condition was correctable by either contact lenses or glasses. He had worn contact lenses because they made a better correction. He also said that he used contact lenses because he could more effectively carry on his coaching activities than when wearing glasses. According to Cathey, the basketball coach at a small college has no full-time assistant, so he has to get out on the floor “where it is,” and “mix it up” with the kids. He said that, in doing this, glasses are always in the way and are frequently knocked off. In Cathey’s opinion, his inability to wear contact lenses would not affect his ability to get a job, but it might affect his ability to keep one. He lost no pay but there was testimony that he was unable to work as effectively as before. He was handicapped in viewing films, which he said was an essential part of his job, and in recruiting athletes, which he described as the life blood of a basketball program in a small college. He said that he was unable to take his usual two-week vacation during the summer following his injúry. At the time of the trial, nearly three years after his injury, he was living in Little Rock and working for an insurance company. His employment as a coach was terminated two years after his injury. At the time of the injury, he was earning $13,500 per year. There was no evidence that he was earning any less at the time of the trial. Cathey testified that he was 42 years of age and anticipated being able to coach for another 15 years. He said that he would accept a good high school coaching job and that, with his experience, he should get a salary between $14,000 and $15,000 per year.

The trial judge, in instructing the jury on the elements of damages in the form of AMI, Civil, 2201, included both AMI, Civil, 2206, the present value of any earnings reasonably certain to be lost in the future, and AMI, Civil, 2207, the present value of any loss of ability to earn in the future. The sufficiency of appellants’ objection to this phase of the instruction is questioned, but we find it sufficient to raise the question appellants argue here, i.e., that both of these elements of damage should not have been included. Appellants’ attorney contended that there was no substantial evidence to support an award for either, but, in any event, one or the other, but not both were permissible. This is the argument appellants make here, and we find the objection sufficient. We also find the objection appropriate. The note on use following each in AMI, Civil, states that it should not be used when the other is given. In spite of the fact that one might suffer loss of future income without having lost earning capacity or loss of earning capacity without having lost future income, it is obvious that when both elements are included in an instruction to the jury, there is a real danger of a double recovery. Stein, Damages & Recovery, p. 95, § 58. As actually worded, the instruction given allowed recovery for the present value of any earnings reasonably certain to be lost in the future and the present value of any loss of ability to earn in the future. As given, the danger of duplication of damages was very real when applied to the facts of this case. See 22 Am. Jur. 2d 132, Damages, § 90; Singles v. Union Pac. R. Co., 173 Neb. 91, 112 N.W. 2d 752 (1962); Fields v. Fields, 213 Or. 522, 326 P. 2d 451 (1958).

We cannot agree with appellants, however, that there was no substantial evidence to support an award for either element. Without elaborating further on the testimony, there was, to say the least, evidence that Cathey, who testified that he went to college to learn to be a coach, was unable to coach successfully as a result of his eye injury. In Missouri Pac. R. Co. v. Gilbert, 206 Ark. 683, 178 S.W. 2d 73, we said:

In estimating damage resulting from loss or impairment of earning capacity, “the reasonable and dependable probabilities, looking through all that may happen and for all the years for which the computation is to be made, and viewed according to the general experiences and observations of life, are the elements which are to guide to a fair and acceptable result.” Mississippi Power & Light Co. v. McCormick, 175 Miss. 337, 166 So. 534, 536. *****

If the injury is permanent, proof of specific pecuniary loss is not indispensable to recovery. It is to be determined by the application of the common knowledge and experience of the jurors to the facts and circumstances of the case. Gretton v. Duncan, 238 Ky. 554, 38 S.W. 2d 448 (1931). It has been held that the appearance of the plaintiff upon the witness stand, and his testimony as to his age and the nature of the injuries complained of, are facts and circumstances to be considered as evidence in determining whether his earning capacity has been impaired. Riddel v. Lyon, 124 Wash. 146, 213 P. 487, 37 ALR 486 (1923). When we consider that the jury was fully informed as to the nature and extent of the injury, and had the benefit of Cathey’s appearance and testimony, we conclude that there is no merit in appellants’ argument in this regard.

Appellants also contend, correctly, that there was error in the trial court’s including AMI 2203 in the instruction covering the elements of damages recoverable, which permitted the jury to evaluate the extent of them on the basis of the aggravation of a condition that already existed and predisposed Cathey to a greater extent than another person. The only evidence of an existing condition was that Cathey was nearsighted. We do not see how this condition predisposed Cathey to injury to a greater extent than another person. Although appellee has a scar on the cornea of at least one eye as a result of his injury, there is no indication that his nearsightedness was aggravated by this injury. The nearsightedness did not predispose Cathey, or make him more susceptible, to his injury to a greater extent than another person.

Appellants also contend that there was no evidence under which the jury could have found that Cathey was reasonably certain to experience pain and suffering in the future. Cathey testified that he was still unable to wear contact lenses without pain. There was no evidence of pain or suffering except when he was wearing contact lenses. The only medical testimony offered cast considerable doubt about the likelihood of future pain attributable to the injury. In view of the fact that, on retrial, there may be other evidence on the subject, we find it unnecessary to pass on this contention.

It is also unnecessary that we pass on appellants’ contention that there was error in denying their request for mistrial, even though we see no prejudice in evidence tending to show admission of liability when there had been an admission in open court. The first reference to an insurance check appears to have been a spontaneous reply by a witness and not a deliberate attempt to inject the “insurance issue,” since the witness had been cautioned by the examiner not to state the source of the payment. Furthermore, at that time the reference could have been to Cathey’s insurance carrier. A great deal of appellants’ argument on this point is devoted to their inability to negate the effect of unanticipated testimony, but they will be prepared to do so on retrial if the matter arises again. References to insurance should be avoided. It is highly unlikely that, on retrial, this matter will arise in the same manner, if at all, so we forego further discussion of it.

The judgment is reversed and the cause remanded.

We agree.

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

      For an informative discussion of these elements of damage, see Woods, Earnings & Earning Capacity as Elements of Damage in Personal Injury Litigation, 18 Ark. Law Rev. 304.