author: John A. Fogi.kman, Justice. John A. Fogleman, Justice.

text:
    Iris CORISTO & Don CORISTO v. THE TWIN CITY BANK, Melvin L. HUFFMAN, Individually and as Executor of the Estate of Gladys CLEMENTS, deceased
    74-183
    520 S.W. 2d 218
    Opinion delivered February 3, 1975
    [Supplemental opinion on Denial of Rehearing April 14, 1975, p. 563-A.]

      Ray & Donovan, for appellants.

      Wallace, Hi!burn & Wilson, Ltd. and E. L. Schieffler and Harvey L. Yates, for appellees.
   John A. Fogi.kman, Justice.

This appeal involves the question whether a certain bank savings passbook account designated as a joint account with right of survivorship could be withdrawn by one of the depositors. The chancery court held that it could, under the circumstances prevailing in this case. We agree.

The account had its inception in the deposit of $10,000 of the proceeds of a policy of life insurance of which Gladys Clements was the beneficiary. Mrs. Clements endorsed the insurance company check for $12,000 and turned it over to her daughter Iris Coristo, who took it to The Twin City Bank on November 7, 1969, and made the deposit, after having deposited $2,000 of the proceeds in her own checking account to apply toward the cost of adding a bedroom to the Coristo dwelling house to provide living quarters for Mrs. Clements. Mrs. Coristo took the signature card for the account to her home after having made the deposit. There Mrs. Clements and Mrs. Coristo’s husband, Don, signed the card and it was returned to the bank. On the face of the card there were stamped these words:

Receipt is hereby acknowledged of Pass Book 49 Rules and Regulations, the terms of which are agreed to.

The account designation read, “Gladys Clements or Don Coristo or Iris Coristo”. Upon this designation, of course, it was clear that any of the parties might have made withdrawals from the account unless a written notice restricting that right was given or unless the passbook terms prevented this being done.

Mrs. Clements did go to the bank on August 30, 1971, and withdraw the entire account and place it in an account designated as “Mrs. Gladys Clements (only)''. On February 24, 1972, she executed a signature card endorsed “Change my (savings) account to a joint account with right of sur-vivorship styled 'Gladys Clements or Melvin L. Huffman’. On that card the account designation was “Gladys Clements or Melvin L. Huffman''. The bank changed the account as designated and assigned the same number to it as that previously assigned to the joint account with the Coristos. The money was on deposit in this account when Mrs. Clements died.

Appellants assert four points for reversal. They are:

The trial court erred in refusing to enforce the contract betvveen the joint depositors and the bank which required presentation of the passbook before the joint account could be withdrawn by either depositor.
II
The trial court erred by holding that the money in dispute was not a gift to Iris Coristo from Gladys Clements prior to November 7, 1969.
III
The trial court erred in failing to hold that the defendants were estopped by their contract to deny that the funds in dispute could not be withdrawn unless the passbook is presented.
IV
The trial court erred in not reforming the passbook by inserting the names of Don Coristo or Iris Coristo.

We shall treat them in order.

I

Appellants argue that Mrs. Clements had no right to withdraw the money in the first account without presenting the passbook. The evidence disclosed that this passbook was never out of the possession of Iris Coristo. The only evidence that it was ever seen by Mrs. Clements was the testimony of Mrs. Coristo that she showed it to her mother before putting it in the daughter's cedar chest. On the first page of the passbook, the name of the depositor was shown as “Gladys Clements”. Directly following the name and address of the bank these words appear: “This book must be presented when money is deposited or withdrawn. This account is not subject to check.” Appellants contend that these words are a part of the “Rules and Regulations" to which Mrs. Clements agreed and that they constitute a contract among the bank and the individual joint holders of the account designated on the signature card. They rely heavily upon The Keokuk Savings Bank & Trust Co. v. Desvaux, 259 Iowa 387, 143 N.W. 2d 296 (1966); Welch v. North Hills Bank, 442 S.W. 2d 98, (Mo. App. 1969); and Badders v. Peoples Trust Co., 236 Ind. 357, 140 N.E. 2d 235, 62 ALR 2d 1103 (1957). Assuming, without deciding that, as held in Badders, the passbook does constitute a contract between the depositors as well as between the depositors and the bank, we do not agree that this contract prevented the withdrawal made by Mrs. Clements.

The parties clearly agreed that they would be bound by the terms of the passbook rules and regulations. We do not consider the requirement that the passbook be presented to be a part of those rules and regulatons. In the back of the passbook, rules are printed under the title “Terms and Conditions Applicable to TCB Passbook 49 Savings Account”. These are numbered from one to ten. There is nothing whatever in these terms and conditions to prevent withdrawals without presentation of the passbook. The first is entitled “Establish Accounts". The next three relate to deposits. Only items five and seven have any bearing on this issue at all. Because we consider them as governing the question we reproduce them in full, viz:

5. WITHDRAWAL OF DEPOSITS
Funds on deposit during the entire 90 day period will be eligible for withdrawal without notice during the first ten days following the 90 day period and each subsequent 90 day period. Funds on deposit may also be withdrawn at other times upon not less than 90 days written notice to the bank signed by the depositor, designating the date on which withdrawal is to be made, in which case interest will be paid to the date of withdrawal stated in the notice. No interest will accrue on the funds to be withdrawn under a “notice to withdraw’’ after the designated withdrawal date. Funds on deposit subject to a notice of withdrawl will not be eligible for withdrawal during the 10 days following the 90 day interest period. All withdrawals will be made only upon presentation by the depositor of appropriate account information and proper identification.
7. JOINT DEPOSITS
When two or more persons are named as depositors in form indicating that it is payable to any one of them, or the survivor or survivors of them, notice of redemption may be given to, payment of principal and interest may be made to, and notice of withdrawal may be signed by any one of the parties during the lifetime of all, or any survivor or survivors, after the death of one or more of them.

It will be readily seen that there is no requirement in these “terms” that the passbook must be presented when a withdrawal was made by any of those otherwise authorized to make it. Furthermore, there is no reference to the statement on the first page of the passbook relating to its presentation. It is clear to us that these “terms and conditions,” and not the statement on the first page of the passbook, constitute the “terms” to which Mrs. Clements agreed and are the rules and regulations constituting the contract between the depositor and the bank. In this respect, this case differs from Keokuk Savings Bank & Trust Co v. Desvaux, 259 Iowa 387, 143 N.W. 2d 296 (1966), where the requirement of presentation of the passbook was clearly a part of the rules of the bank assented to by the parties. If there was any doubt about the governing rule, it seems to have been dispelled by Bernice Orisini, operations officer at the bank. She testified that Item 7 quoted above was a part of the “passbook” rules and regulations and that, while normal procedures of the bank were to ask for the passbook when a withdrawal was made, that the presentation of the book was not a binding requirement and a withdrawal without it was possible. Although she testified that everything in the passbook was a part of the rules and regulations of the bank, when asked by the court to state the purpose of the passbook requirement, Ms. Orsini explained that treatment of passbooks had undergone a change in banking, because before bank statements were rendered to depositors, the passbook was the only record of the account. She stated a withdrawal without the passbook was possible and one of the specific circumstances under which an account could be withdrawn without the passbook was a “change of beneficiary”.

Appellants also rely heavily upon Welch v. North Hills Bank, 442 S.W. 2d 98 (Mo. App., 1969); Badders v. Peoples Trust Co., 236 Ind. 357, 140 N.E. 2d 235, 62 ALR 2d 1103 (1957), and Davis v. Chittenden County Trust Co., 115 Vt. 349, 61 A. 2d 553 (1948). But in those cases neither the existence of a rule requiring presentation of the passbook for withdrawals nor its incorporation into the contract between the bank and the depositor was subject to question, as it is here. We deem the terms and conditions hereinabove quoted to be the only contractual terms relating to withdrawal.

It has been held that a requirement that the passbook be presented at the time of withdrawal is for identification of the depositor and for the convenience and protection of the bank and, as such, may be waived by the bank. Mathey v. Central National Bank, 179 Kan. 291, 293 P. 2d 1012 (1956); In Re Blose’s Estate, 374 Pa. 100, 97 A. 2d 358 (1953); 9 CJS 1424, Banks and Banking, § 1002. We have no quarrel with the authorities holding that such a requirement may be incorporated into the agreement between the bank and the holder of a joint account so that it may not be waived without the concurrence of all of them. We simply do not agree that this requirement became a part of the contract here. The location of the passbook requirement and its separation from the “terms and conditions” which do not mention it, when considered along with the testimony of Ms. Orsini, is clearly indicative that it was inserted and intended to be for the bank’s benefit only, and subject to waiver by it. To say the least, we cannot say that the chancellor’s finding in this regard is clearly against the preponderance of the evidence.

II

Appellants also argue that the money deposited was a completed gift by Mrs. Clements to Iris and Don Coristo. The chancellor held that the money on deposit in the joint account to which all were parties was not such a gift. Appellants base their argument upon evidence showing that upon receipt of the check for $12,000 Mrs. Clements endorsed the check in blank and delivered it to her daughter Iris, who deposited $2,000 from it in an account in her own name and the remaining $10,000 in the joint account, retaining the possession of the passbook at all times thereafter. They also rely upon the testimony of the daughter that her mother gave her the money, told her to do with it as she pleased, tried to get her to put it in a trust for the Coristo boys and encouraged her to buy anything she wanted because she had the money.

All elements of a completed gift inter vivos must be shown by clear and convincing evidence. Porterfield v. Porterfield, 253 Ark. 1073, 491 S.W. 2d 48. In Porterfield we reiterated the oft-expressed view that, in order to constitute such a completed gift, there must be an actual delivery of the subject matter of the gift to the donee with a clear intent to make an immediate, present and final gift beyond recall, accompanied with an unconditional release of all future dominion and control by the donor over the property delivered. We also said that the “clear and convincing” rule meant that the gift must be established so definitely as to put the matter beyond any reasonable doubt.

Of course, the opening of this account did vest an interest in appellants under Ark. Stat. Ann. § 67-552 (Repl. 1966), whether Iris Coristo or Mrs. Clements be considered as the “person opening such account," because the signature card itself constituted a designation “in writing to the banking institution that the account .... be held in joint tenancy with right of survivorship”. The account became the property of the three as joint tenants with right of survivorship. See Cook v. Bevill, 246 Ark. 805, 440 S.W. 2d 570; Willey v. Murphy, 247 Ark. 839, 448 S.W. 2d 341. But we are not able to say that the chancellor was in error in holding that neither the entire $12,-000 check nor the $10,000 deposit was a gift by Mrs. Clements to appellants, or either of them. Mrs. Clements moved into the Coristo home about a week after her husband’s death, under an arrangement whereby the Coristos built an addition to their dwelling house, for which Mrs. Clements was to, and did, pay, in order to have room for her. When the insurance company check was delivered to Iris Coristo, she told her mother she intended to put $2,000 of the money in her own account for the building of the addition. Iris Coristo testified on direct examination that her mother gave no instructions and there Was no other discussion at the time of the delivery of the check. It was on cross-examination that she said that her mother gave her the money. Mrs. Coristo admitted that her mother was upset over her husband’s death at the time. The evidence does not disclose that Mrs. Clements ever went to the bank while she lived with appellants, except on August 30, 1971, and the only testimony that Mrs. Clements ever saw the passbook was that of Mrs. Coristo. Mrs. Clements did sign the signature card, but there was no discussion of the designation of the account at that time. The bank had designated the account as joint upon the instructions of Iris Coristo and Iris Coristo testified that there was no discussion with the bank personnel about her right to deposit the $2,000 in her own account. The passbook showed the savings account to be in the name of “Gladys Clements” only. Iris Coristo doubted that she noticed this until it was called to her attention by an officer of the bank when she presented the passbook in February 1972 to obtain a loan, even though she jealously guarded her possession of it, taking it out of her cedar chest only when she presented it to the bank for posting of accrued interest on one or two occasions. The application for the loan and the loan were made after Mrs. Clements had withdrawn the money from the joint account. Iris Coristo testified that she wanted the money to care for her mother. It is quite significant that the interest on this account was not reported on the income tax returns of appellants. The excuse for doing this, given by Iris Coristo, was that their tax accountant advised them not to do so because her mother's income, which otherwise consisted only of rent and social security payments, should be permitted to “absorb it”. The signature'card, and bank rules, as well as § 67-552 clearly recognized that any one of the three joint tenants could withdraw any or all of the money from the account, and there was never any contrary written designation given to the bank.

We cannot say that there was no reasonable doubt about the making of a completed gift by Mrs. Clements or that there was a clear intent on the part of Mrs. Clements to put the money beyond her own recall or to release the money from all future dominion and control by her. Thus, we cannot say that the chancellor erred in this finding.

Ill

Appellants also argue that both the bank and Mrs. Clements’ executor are estopped by their contract to deny that the funds in dispute could not be withdrawn unless the passbook was presented. As hereinbefore pointed out, Mrs. Coristo’s testimony is the only evidence that Mrs. Clements ever saw the passbook which Mrs. Coristo said was carefully secreted by her after she took it home. If Mrs. Clements did see the passbook requirement she must also have noted that her name alone was shown above it as the depositor. Since es-toppel bars truth to the contrary, the party asserting it must prove it strictly, there must be certainty to every intent, the facts constituting it must not be taken by argument or inference and nothing can be supplied by intendment. Wheeless v. Eudora Bank, 256 Ark. 644, 509 S.W. 2d 532 (1974). We cannot say that there was a clear preponderance of evidence to establish estoppel. Appellants, in making their argument on estoppel, make much of the fact that after having first deposited this money in a savings account in her own name, Mrs. Clements, on February 24, 1972, deposited it in a joint account with her son, Melvin L. Huffman, and that appellee bank assigned to it the same account number previously assigned to the joint account with appellants. Appellants say that this amounted to a redeposit in the original account. We cannot attach such significance to this circumstance.

IV

In view of what we have said, we find no basis for the reformation of the passbook sought by appellants.

The decree is affirmed.

Supplemental Opinion on Denial of Rehearing delivered April 14, 1975

522 S. W. 2d 417

John A. Fogleman, Justice.

By petition for rehearing, appellants assert that we failed to consider their argument that the Twin City Bank is estopped by the passbook statement. Although we made particular application of the rules relating to estoppel to facts particularly pertinent to the estate of Gladys Clement, we unintentionally failed to extend our treatment to the position of the bank. The evidence in support of an estoppel is perhaps stronger in the case of the bank than it was as to Mrs. Clement. The bank obviously did know that the notation as to presentation was on the first page of the passbook. But, as we have pointed out, the bank viewed it as a measure for its own protection and not for the benefit of the depositor, and never represented to Mrs. Co-risto that it was for her protection or that it afforded her any protection.

The chancellor did not find that there was a basis for es-toppel, and, in view of the burden of proof in such cases, we cannot say that he was in error. Mrs. Coristo drew her own inference to arrive at her conclusion. Since an estoppel bars the truth to the contrary, the party asserting it must prove it strictly. We cannot say that estoppel as to the bank has been shown strictly or to the degree of certainty required. Usually, estoppel can only be predicated upon a statement made with the intention to mislead the party asserting it or that it be acted upon by the party to whom it was made. Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 752, 18 S.W. 2d 327. It must be clearly established that there was such intention or that there was negligence so gross as to be culpable. Hope Lumber Co. v. Foster & Logan Hardware Co., 53 Ark. 196, 13 S.W. 731. Gross negligence falls just short of that reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong, and the distinction is said to be so slight as to seem somewhat artificial. Edwards v. Jeffers, 204 Ark. 400, 162 S.W. 2d 472; Splawn, Adm'x. v. Wright, 198 Ark. 197, 128 S.W. 2d 248.

We do not think that an estoppel barring the truth as to the bank was shown by a preponderance of the evidence.

Bvrd, J., concurs in denial of the rehearing but dissents from this opinion.

      Cf. Speasl v. National Bank of Decatur, 37 Ill. App. 2d 384, 186 N.E. 2d 84 (1962).


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Joseph Allen MAGNESS v. STATE of Arkansas
    CR 74-125
    518 S.W. 2d 479
    Opinion delivered February 3, 1975

      Don Langston, Public Defender, and Hubert Graves, Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Joseph Allen Magness was convicted in the Sebastian County Circuit Court on the charge of possession of contraband substances with the intent to deliver. He was sentenced to live years in the penitentiary with two years suspended. Magness was represented at his trial by employed counsel, but is represented on this appeal by the Public Defender.

On appeal to this court Magness contends that the trial court erred in refusing to quash the information filed against him, and in ruling that he (Magness) “did not come within Ark. Stat. 82-2621 and 43-1224.1 through 43-1224.4. . . .”

Ark. Stat. Ann. § 82-2621 (Supp. 1973) reads as follows:

“Foreign conviction. — If a violation of this Act [§§ 82-2601 —- 82-2638] is a violation of a Federal law or the law of another State, a conviction or acquittal under Federal law or the law of another State for the same act is a bar to prosecution in this State.”

Ark. Stat. Ann. § 43-1224.1 through § 43-1224.4 (Supp. 1973) read as follows:

“43-1224.1. Acquittal or conviction as bar.— Offense against United States or another state. — When a person has been either acquitted or convicted, on the merits-, of an offense against the United States or against another state or territory thereof, the acquittal or conviction is a bar to prosecution for an offense against this State, or any governmental subdivision thereof, when the two [2j offenses were committed in the same course of conduct and are of the same character.
43-1224.2. ‘Same character' defined. — For purposes of this act [§§ 43-1224.1 —43-1224.4] two [2] offenses are of the same character when the elements which must be proved to obtain a conviction of one offense are not substantially different from the elements which must be proved to obtain a conviction of the other. In determining whether such elements are not substantially different, the court shall compare the respective purposes of the laws defining the two [2J offenses, as such purposes relate to the particular course of conduct of the defendant. Provided, however, that
(a) Differences attributable solely to the fact that the defendant’s conduct affected, in the same manner, the person or property of two [2J or more individuals, and
(b) Differences consisting of elements necessary merely to establish subject matter jurisdiction, shall not be considered in deciding whether the two [2] offenses are of the same character.
43-1224.3. ‘Acquittal’ and ‘conviction’ defined. — (1) There is an acquittal on the merits if the prosecution resulted in a finding of not guilty by the trier of fact, or in a determination that there was insufficient evidence to warrant a conviction.
(2) There is a conviction if the prosecution resulted in a judgment of conviction which has not been reversed or vacated, a verdict of guilty which has not been set aside and which is capable of supporting a judgment, or a plea of guilty accepted by the court.
43-1224.4. Application — Time to plead. — (1) This act [§§ 43-1224.1 — 43-1224.4] does not apply to pending prosecutions.
(2) The time for pleading the bar to prosecution provided for herein, in prosecutions commenced after the effective date hereof, shall be at the regular time for pleading double jeopardy under Arkansas Constitution Article II, Section 8.”

We agree with the trial court that Magness presents an ingenious argument, but neither do we find merit in his contentions.

The pertinent facts are briefly these: Magness w'as arrested in Oklahoma for public drunkenness and a search of his automobile revealed some contraband drugs concealed in the steering column of his automobile. A drugstore at Hartford near Fort Smith had been burglarized and some drugs had been taken therefrom. Magness maintained a rented apartment in Fort Smith and in the process of investigating the drugstore burglary, the Arkansas police officers searched the apartment under a valid search warrant and found a quantity of controlled drugs in a paper bag.

The Arkansas officers took the paper bag containing the drugs to Oklahoma; confronted Magness with the bag and contents and questioned him concerning the burglary at Hartford. Magness denied any knowledge of the burglary but readily admitted ownership of the drugs found in his apartment.

Magness was charged in Oklahoma with possession of drugs with intent to sell under the laws of that state, but the charge in Oklahoma was subsequently reduced to mere possession. Magness pleaded guilty to the reduced charge in Oklahoma and was sentenced to six months in jail on the reduced charge. In the meantime, Magness was charged in Arkansas, as already stated, and upon release from jail in Oklahoma, he waived extradition and was returned to Arkansas for trial. Magness filed a motion to quash the information filed against him in Arkansas contending that he had already been convicted of the same offense in Oklahoma. The trial court denied the motion to quash; a jury trial was waived and trial before the court sitting as a jury resulted in the conviction and judgment from whence comes this appeal.

Magness readily admitted that he owned the drugs found in his Fort Smith apartment and taken to Oklahoma by the Arkansas officers. He said the Arkansas officers confronted him with the drugs from his apartment while questioning him in Oklahoma about the Arkansas burglary. He said he was never confronted with the drugs taken from the steering column of his automobile in Oklahoma, and he thought he was pleading guilty in Oklahoma to possessing the drugs in Arkansas. He argues that, in any event, before he left Fort Smith to go to Oklahoma, he took some of the drugs from the paper bag in his apartment and, not wanting to carry the drugs on his person, he placed them in a cigarette package and then placed the package in the steering column of his automobile. He said he only possessed the drugs in Oklahoma for his own private use. He argues that the drugs found in the steering column of his automobile in Oklahoma were a part of the same drugs found in his apartment in Arkansas, and that his plea of guilty to possession in Oklahoma precluded a trial in Arkansas for possession in Arkansas with intent to deliver.

We are of the opinion that the trial court did not err in denying the motion to quash the information. The Oklahoma Court record is not before us nor do we have jurisdiction of the Oklahoma proceedings. We are, therefore, unable to say what drugs Magness was confronted with in Oklahoma, or whether a confrontation was necessary to his conviction on plea of guilty under the Oklahoma law and procedure. Certainly there is nothing in the record before us indicating that Magness was charged and convicted in Oklahoma with possessing the controlled substances in Arkansas. If Magness was charged and convicted in Oklahoma of possessing drugs in Arkansas, it would appear that an assignment of error should have been addressed to the Oklahoma Courts for correction. It would appear that the Oklahoma Court may have accepted Magness’s explanation that he had the drugs in the steering column of his automobile for his own use and not for sale, and that was the reason the court reduced the charge to possession only and accepted Magness’s plea of guilty to possession.

There is no evidence that the drugs found in Magness’s apartment in Fort Smith ever left the possession of the Arkansas officers while interviewing Magness in Oklahoma and, certainly there is no evidence that Magness ever came into possession of the drugs from his Arkansas apartment while the Arkansas officers had the drugs in Oklahoma.

We are not called on to determine in this case what the situation would have been if Magness had taken all of his drugs to Oklahoma and had been convicted of possession with intent to sell in that state and then subsequently been charged with possession with intent to sell the same drugs in Arkansas. We are not called on to interpret and define §§ 43-1224.1 — 43-1224.4, supra, because the offenses in the case at bar were not committed in the same course of conduct, and are not of the same character as the misdemeanor to which Magness pleaded guilty in Oklahoma.

There was evidence that some of the drugs in the paper bag found in Magness’s Fort Smith apartment were different from the kind he possessed in Oklahoma. In the case of Bins v. United States, 331 F. 2d 390 (1964), the court said:

“ [I]t is well settled that the test for determining whether several offenses are involved is whether identical evidence will support each of them, and if any dissimilar facts must be proved, there is more than one offense. Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Morgan v. Devine, 237 U.S. 632, 35 S.Ct. 712, 59 L.Ed. 1153 (1915).”

See also Velasquez v. United States, 244 F.2d 416; Wilburn v. United States, 326 F.2d 903 (1964).

The judgment is affirmed.


author: Frank Holt, Justice.

text:
    Millard RUSSEY and Willie WAY Jr. v. STATE of Arkansas
    CR 74-118
    519 S.W. 2d 751
    Opinion delivered February 3, 1975
    [Rehearing denied March 10, 1975.]

      Acchione <3? King and McArthur & Lofton, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellants were found guilty of murder in the first degree by a jury which assessed their punishment at life imprisonment in the Department of Correction. We first consider Russey’s appeal. He contends for reversal that it was error to admit his confession into evidence because it was secured by coercion and duress and, therefore, was involuntary. He also argues that the state failed to produce all material witnesses connected with the asserted involuntary confession.

Appellant Russey was arrested on January 2, 1974, at 3 p.m. on a burglary charge. At the Demo hearing Russey testified that later that evening, detectives Sparr and Roun-savall took him from the jail to locate the stolen property. Russey testified that afterwards Rounsavall and Sparr took him to a cemetery and physically beat him. According to Russey, one of the officers put a pistol in his mouth and told him “he had just shot a boy over in that cemetery a couple of days ago, and asked me did I want to be the next one?” Appellant testified that he was told to cooperate with them and was told that he killed Carter. Russey further testified that a tooth was loosened from a blow administered in the cemetery and Sparr, in the presence of Rounsavall, knocked it out the next day before he signed a confession. Russey was 18 years old and had a 10th grade education. He testified he was terrified from the first day’s experience and did not relate the statement which Sparr brought in for him to sign. Russey testified that during this time he was not allowed to use the phone and was unable to secure an attorney until January 5, 1974. On that date he retracted his statement.

Detectives Best and Vandiver were the only police officers who testified at the Denno hearing. They testified no other officer was present at the time appellant gave his statement dated January 3, at 6:40 p.m. They saw no swelling of appellant’s face and appellant did not complain about any physical abuse. To their knowledge, no threats, coercion or physical abuse ever occurred. Both officers testified that appellant was given the Siiranda warning, fully understood his rights and waived them as evidenced by his signing a waiver of rights form preceding his statement. At appellant’s request, Best wrote the statement which Russey then signed. Best and Vandiver testified that Russey did not request to use the phone or talk to anyone. Best was unaware that Sparr and Rounsavall took appellant from the jail in a patrol car the night before appellant was interrogated by Best in Van-diver’s presence.

At the Denno hearing, the trial court ruled the statement voluntary without the state producing either Sparr or Roun-savall as witnesses. At trial, however, after the statement was read to the jury, Sparr was called as a rebuttal witness. Rounsavall never testified. The sole explanation for his absence was that he was off duty. Suffice it to say that it is manifest that the state did not meet the burden of proof as is required in Smith v. State, 254 Ark. 538, 494 S.W. 2d 489 (1973). There we held:

Whenever the accused offers testimony that his confession was induced by violence, threats, coercion, or offers of reward then the burden is upon the state to produce all material witnesses who were connected with the controverted confession or give adequate explanation for their absence.

In the case at bar, the accused offered testimony that his confession was induced by violence, threats and coercion by the officers. Two of these officers, Sparr and Rounsavall, did not testify at the Denno hearing. Therefore, as to them, his testimony stands uncontradicted. The burden was upon the state to produce these material witnesses or give adequate explanation for their absence. Sparr testified at the trial subsequent to the Demo hearing. However, the trial court must first find at a Demo hearing that a statement is voluntary before it is admissible. Ark. Stat. Ann. § 43-2105 (Supp. 1973). Rounsavall, whom appellant Russey said he particularly feared, never testified. The fact that he was “off duty” the day of the trial is not “adequate explanation.” Smith v. State, supra.

The state “notes” that appellant did not object to the absence of Rounsavall. However, appellant’s objection to the confession as being involuntary was sufficient. In Smith v. State, 256 Ark. 67, 505 S.W. 2d 504 (1974), we said:

Nowhere in Smith does it appear that, in making an objection based upon a contention the state has failed to show a statement is involuntary, a defendant must point out, in precise words, that a material witness was not called.

Consequently, in the case at bar, it was necessary in determining the voluntariness of the confession that all material witnesses be presented or an “adequate explanation” of absence be given. Since neither occurred, we must hold it was prejudicial error to admit his confession into evidence.

We next consider Way’s appeal. He contends the court erred in allowing three photographs into evidence which were unnecessary since the identification of the deceased was not in issue and the photographs served no purpose other than inflaming the minds of the jurors. Four photographs-were excluded by the trial court. One of those admitted showed the victim where he fell in the living quarters of the store after being shot. The other two photographs depicted his wounds.

In Milam v. State, 253 Ark. 651, 488 S.W. 2d 16 (1972), we said:

Photographs may be introduced to describe and identify the premises, to establish the corpus delicti, to disclose the environment of the crime, and to corroborate testimony. **** When photographs are otherwise properly admitted it is not a valid objection that they tend to prejudice the jury.

The photograph of the victim on the floor corroborated testimony that the victim ran from his assailant in the business area of the building into the living area where he was found fatally wounded. The two other photographs supported the medical testimony as to the nature, location and extent of the wounds. We hold there was no abuse of discretion by the trial court.

Neither can we agree with appellant Way that the trial court erred in denying his motion for a directed verdict. Two witnesses at the scene of the crime could not positively identify Russey or Way. However, one testified that appellants “looked like the boys.” It is argued by Way that the evidence is insufficient because Johnny Stewart, a witness for the state, was an accomplice as a matter of law and the court erred in not so ruling and refusing their instruction to that effect. The court submitted the issue to the jury that Johnny Stewart’s interest and participation was a question of fact and not one of law. Stewart, 15 years of age, testified that he knew the appellants. On the day of the robbery-murder, he first saw them in a pool hall and rode around with them and a Ricky Griffin. Russey, who was driving, stopped the car at Carter’s Grocery. Russey and Way got out of the car, each holding a pistol. Shortly they returned with the pistols and a brown paper sack. He did not hear any shots, see any money and no one gave him any. No one discussed a robbery with him and he was driven home. His version was not tested by cross-examination.

In Froman and Sanders v. State, 232 Ark. 697, 339 S.W. 2d 601 (1960), we quoted with approval:

The burden is on the defendant to show that the witness for the state is an accomplice. This is usually determined by the court as a question of law. But if the evidence is conflicting as to the participation of the witness in the commission of the crime, the matter should be left to the jury under proper instructions as to intent and participation.

In the case at bar, we agree with the trial court that Stewart was not an accomplice as a matter of law and the court, by correct instructions, properly submitted the issue to the jury as a fact question. To the same effect are Austin v. State, 254 Ark. 496, 494 S.W. 2d 472 (1972); Satterfield v. State, 245 Ark. 337, 432 S.W.2d 472 (1968); and Rogers v. State, 136 Ark. 161, 206 S.W. 152 (1918). Furthermore, in Fields v. State, 213 Ark. 899, 214 S.W. 2d 230 (1949), we said:

The mere passive failure to disclose the commission of the crime would not make one an accessory under our statute. There must be some affirmative act tending toward the concealment of its commission or a refusal to give knowledge of the commission of the crime, when same is sought for by the officials of the person having such knowledge.

See also Satterfield v. State, supra. In the case at bar, it appears that Stewart never, by any affirmative act, sought to conceal the commission of the crime.

Appellant Way further contends the trial court erred in denying appellant’s motion for a mistrial. The prosecutor, while cross-examining Russey, referred to Way being in jail at the same time as Russey. Way argues that a “broad field of speculation as to his character and possibly his criminal record” was presented to the jury. We agree with the state that this contention is speculative. A motion for a mistrial is “an extraordinary action and this motion should only be granted where it is obvious that any possible prejudice cannot be removed by an admonition. "Hathcock v. State, 256 Ark. 707, 510 S.W. 2d 276 (1974). In the case at bar there was no request for any admonition. Furthermore, it appears that no prejudice could result since there was no objection by appellant when Detective Best testified that the appellants were incarcerated at the same time during the investigation.

Neither can we agree that the trial court erred in refusing to instruct the jury that appellant Russey, a co-defendant, is an accomplice as a matter of law. When this instruction was offered by appellant Way and its propriety was being dis-cusssed, his then trial counsel stated that Russey’s involvement “would be a question of fact for the jury.” Moreover, Russey testified and denied complicity in the alleged offense. He, also, offered an alibi which was corroborated by his employer.

Affirmed as to Way and reversed and remanded as to Russey.


author: George Rose Smith, Justice.

text:
    Mary Delia PRATHER et al v. Joe MARTIN, Sheriff and Collector
    74-239
    519 S.W. 2d 72
    Opinion delivered February 10, 1975

      Clark, McNeil & Watson, for appellants.

      Alex G. Streett and Tom Donovan, for appellee.
   George Rose Smith, Justice.

The appellants brought these two suits, consolidated below, to enjoin the Faulkner County Collector from collecting real estate taxes attributable to increases in assessed valuations that were assertedly made without notice to the complaining landowners. The trial judge, finding that “the receipt of notice makes no difference,” dismissed the complaints for want of equity.

Both cases involve a tract-by-tract reassessment that was undertaken in 1972. That procedure was discussed in detail in Dierks Forests v. Shell, 240 Ark. 966, 403 S.W. 2d 83 (1966), where we pointed out that notice to the property owner and an opportunity to be heard are constitutionally essential to such a proceeding. The statute requires the assessor to give that notice and to inform the landowner of his right to apply to the equalization board for a review of the increased assessment. Ark. Stat. Ann. § 84-437 (Repl. 1960).

We first consider the Prather appeal, for there is no substantial dispute about the facts in that case. After the reassessment had been completed in July or August of 1972, the county clerk assumed the responsibility of sending out the required notices to landowners whose assessments had been increased. Mrs. Prather was living in Little Rock and her co-owner in Arkadelphia, but the county clerk was unable even by diligent efforts to ascertain either address. Consequently the notice, although prepared, was never mailed and was still in the county clerk’s files when the case was tried. Thus it is undisputed that the required statutory notice of the increase in the Prather assessment was not given.

The appellee argues, however, that no notice was necessary, because the landowners had an adequate opportunity to apply for a judicial review of the assessment when they first learned of the increase almost a year later, in August of 1973. Here counsel rely upon that provision of the statute which permits a landowner to appeal to the county court without having first exhausted his remedy before the equalization board in all cases “where the petitioner shall have had no opportunity to appear before said board.” Section 84-708. Counsel contend that no matter when these landowners learned of the increase — even a year later — the ten-day period for an appeal to the county court then began to run. Section 84-718.

That contention is unsound. Section 84-437, supra, perhaps goes beyond the minimum constitutional standard by requiring the assessor not only to give the landowner notice of the increase but also to inform him of his right to apply to the equalization board for a review. The appellee’s argument would effectively nullify the protection which the legislature intended for the landowner to have, because he would have to appeal to the county court within ten days after learning of the increase and without having received any information about his remedy. We are not convinced that the legislature, in enacting Section 84-708, meant to destroy the protection that it had carefully provided in Section 84-437. Instead, as we indicated in Jones v. Crouch, 231 Ark. 720, 332 S.W. 2d 238 (1960), the proviso permitting an appeal by a landowner who has had no opportunity to appear before the equalization board is a safeguard against a contingency such as the board’s having so many appeals that they cannot all be heard within the time allowed. We accordingly hold that the chancellor erred in denying relief in the Prather case.

In the second case, involving the Ramada Inn property, a question of fact was presented. Kathy Barrett, a deputy county clerk, testified positively that she remembered the Ramada Inn notice, because it was so high. She testified that the notice was actually prepared and put in the hands of L. J. Merritt, the county clerk, for mailing. Merritt testified that a notice was prepared on every parcel and that he picked up the notices daily and mailed them at the postoffice. Some of the notices were returned, but Kathy Barrett stated that the Ramada Inn notice was not in the return files. On the opposite side, Charlotte Wonn, the manager of the Inn, testified that she alone opened the mail and that no notice of the increased assessment was received.

There being evidence that the notice was mailed, the chancellor was right in holding that proof of its receipt was not essential. Due process requires that notice be given, but it may be by publication or by posting notices in public places. Londoner v. Denver, 210 U.S. 373 (1908); Glidden v. Harrington, 189 U.S. 255 (1903). The chancellor’s conclusion that notice was given in the Ramada Inn case is not clearly against the weight of the evidence.

Affirmed as to the Ramada Inn property, reversed as to the Prather property.


author: Lyle Brown, Justice.

text:
    Harold Dean HEWITT & SPRINGDALE LIQUORS, Inc. v. Thelma GAGE
    74-247
    519 S.W. 2d 749
    Opinion delivered February 10, 1975
    [Rehearing denied March 17, 1975.]

      Stubblefield & Matthews, by: Charles D. Matthews, for appellants.

      Crouch, Blair, Cypert & Waters, by: H. Franklin Waters, for appellee.
   Lyle Brown, Justice.

Harold Dean Hewitt is the principal owner of Springdale Liquors, Inc., which operates seven retail liquor outlets in the city of Springdale. Appellee Thelma Gage is the only other owner and operator of a liquor store in that city. One of Hewitt’s outlets was located at 610 West Emma Street. The Alcoholic Beverage Control Commission (ABC) authorized the transfer of the liquor permit covering that location to 2100 West Sunset. The latter address appears to be approximately across the street from Ms. Gage’s operation. Ms. Gage petitioned the circuit court to invalidate the ABC order and was granted a summary judgment. Hewitt and Springdale Liquors appeal.

Appellee’s motion for summary judgment was submitted upon her complaint and admissions of fact executed by appellant Harold Hewitt. It was revealed by those documents that Hewitt owned an interest in more than one retail liquor permit. On the basis of that undisputed fact the court granted summary judgment, citing Ark. Stat. Ann. § 48-310.2 (Supp. 1973) which was enacted in 1971, Act 106:

No retail liquor permit shall hereafter be issued, either as a new permit or as a replacement of an existing permit, to any person, firm or corporation, if such person, firm or corporation has any interest in another retail liquor permit, regardless of the degree of such interest.

We think the summary judgment was appropriate. The clear effect of the ABC order was to replace a permit previously issued for 610 West Emma Street with one covering the premises at 2100 West Sunset. And, as we have said, Hewitt, at the time of the replacement, owned an interest in several other stores. Appellants adroitly argue that the only thing which took place was the ABC inter-office “transfer” of a permit from one address to another. We cannot agree; in fact we can conceive of no clearer example of the replacement of a liquor license and we unhesitatingly conclude that the statute was written to cover just such a situation.

Appellants devote a considerable portion of their brief to the proposition that Ark. Stat. Ann. § 48-312 (Repl. 1964) has been repealed by implication. It reads:

A permit issued to any person, pursuant to this section, for any premises shall not be transferable to any other person or to any other premises or to any other part of the building containing the permitted premises. It shall be available only to the person therein specified, and only for the premises permitted and no other. [Acts 1935, No. 108].

The quoted statute is not pertinent to a resolution of the case at bar. In awarding the summary judgment the trial court did not pass judgment on the repeal or non-repeal of Section 48-312. Even if that section has been repealed (which issue we do not reach) appellants are still faced with the prohibition set forth in Section 48-310.2 supra.

Appellants contend that the entry of a summary judgment was an abuse of discretion. It is asserted (1) that without the record made before the ABC being furnished the trial court, the latter could not determine whether a new permit or a replacement permit was issued Hewitt. The argument is without merit. The admission of facts specifically states that the ABC transferred the liquor business operated at 610 West Emma to 2100 West Sunset. It is significant that appellants filed no counter-affidavits to the motion for summary judgment. Then (2) appellants say that it was error to determine that only one conclusion could be drawn from the facts. We find no merit in the argument and mention it only to inform appellants that we have not overlooked it.

Finally, appellants argue that their motion to dismiss appellee’s petition to the circuit court should have been granted. The argument is based on the fact that appellee did not file in the circuit court a copy of the proceedings before the ABC. That was not necessary. Acts of 1973, Act No. 189 is compiled as § 48-311 (Supp. 1973). Paragraph (E) provides that an appeal from any order of the ABC shall be taken to the circuit court and tried de novo. Appellee pleaded that she be granted a trial de novo. Hence the record made before the ABC became immaterial. Furthermore, had the appeal been taken under the provisions of the Administrative Procedure Act it would have been the duty of the ABC — not the aggrieved party — to “transmit to the reviewing court the original or a certified copy of the entire record of the proceeding under review”. Ark. Stat. Ann. § 5-713 (Supp. 1973). The ABC was fully aware of appellee’s petition because the individual members were served with summons.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Benny WEST v. STATE of Arkansas
    CR 74-156
    518 S.W. 2d 497
    Opinion delivered February 10, 1975

      Robert A. Neivcomb, Atty. for Inmates, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Benny West was charged with first degree murder and held without bail from November 7, 1970 to April 1972, at which time bail was set at $50,000. Bail was reduced to $25,000 in July 1972, and on August 3, 1972, he was released on bail. A jury found him guilty of second degree murder on June 5, 1973, and he was sentenced to 21 years. O January 14, 1974, he filed a motion for modification of his sentence by crediting him with his pretrial confinement. On November 4, 1974, the circuit judge granted his motion by reducing the sentence in the judgment entered to a sentence of 19 years, 3 months and 5 days, after finding that pretrial incarceration amounted to 1 year, 8 months and 25 days. This was not a suspension of part of the sentence, as appellant suggests.

Appellant contends that this action was not in accordance with Ark. Stat. Ann. § 43-2813 (Supp. 1973). We do not agree.

It is appellant’s contention that the court should have directed that appellant’s sentence start on a date 1 year, 8 months and 25 days prior to the date of the jury verdict. We are unable to see how this result is dictated by § 43-2813. That section reads:

Computation of Sentence. Time served shall be deemed to begin on the day sentence is imposed, not on the day a prisoner is received by the Department of Correction and shall continue only during the time or times in which a prisoner is actually confined in a county jail or other local place of lawful confinement or while under the custody and supervision of the Department of Correction; provided, however, that the sentencing judge may in his discretion direct, when he imposes sentence, that time already served by the defendant in jail or other place of detention, shall be credited against the sentence.

It seems to us that the trial judge’s action is exactly in accord with the statutes. Nothing whatever in the language of the statute directs or permits the judge to make the sentence effective retroactively, and we are aware of nothing that would make the statute or its application by the trial judge in this case run afoul of “equal protection” guarantees. Appellant cited no authority for his argument that the procedure deprives him of Fourteenth Amendment equal protection.

He has presented an ingenious argument that he is discriminated against by reason of the fact that under Ark. Stat. Ann. § 43-2807 (c) (Supp. 1973) one who was sentenced to 21 years who had not been incarcerated prior to trial would be eligible for parole after seven years, while he would have served 6 years, 5 months and 2 days in the Department of Correction, and 1 year, 8 months and 25 days in pretrial jail confinement, or a total of 8 years, 1 month and 27 days. Assuming that each started receiving maximum “good time” credit from the beginning of his sentence, the difference, according to appellant, would be 3 years and 6 months, as against 3 years, 2 months and 16 days plus his pretrial jail time for a total of 4 years, 11 months and 11 days. The disparity in “good time” credit clearly does not deny Fourteenth Amendment equal protection to appellant. McGinnis v. Royster, 410 U.S. 263, 93 S. Ct. 1055, 35 L. Ed. 2d 282 (1973).

The rationale of Royster is also applicable to the disparity in minimum parole eligibility time. In McGinnis the court passed on a New York statute which, in effect, denied “good time” credit for presentence incarceration in county jails. Under the statute “good time” was awarded for good behavior and efficient performance of duties during incarceration. Minimum parole date was calculated by subtracting the greatest amount of good time that could be earned from the minimum sentence of an indeterminate term, and the statutory release date, by subtracting the greatest amount of good time that could be earned from the maximum sentence of an indeterminate term. The statute came into play in McGinnis because it explicitly forbade any “good time” credit for time spent in jail in calculating the minimum parole dates. If the appellees in McGinnis had been entitled to “good time” credit for their presentence confinement they would have been entitled to appear before the parole board at least three months earlier than they would otherwise. Insofar as the end result is concerned, the problem here and the principle involved are essentially the same. The mere fact that the court acted in strict compliance with a statute that makes no reference to “good time” credit, and McGinnis involved a statute that made the distinction makes no real difference. The court in McGinnis held there was no denial of equal protection because the distinction, having arisen in the course of the state’s sensitive and difficult effort to encourage for its prisoners constructive future citizenship while avoiding the danger of releasing them prematurely upon society, called for classifications to meet a practical problem of government, which need only be upon a rational basis, even though they may actually result in rough accommodations. The important question is whether the challenged distinction rationally furthers some legitimate, articulated state purpose. The legitimate purpose in McGinnis was found in the different purposes, usages and facilities in state prisons and county jails. On the one hand there is, whatever deficiencies there may be, a rehabilitative program and objective in state prisons, but none in county jails, which are designed as places of detention only. See Ark. Stat. Ann. § 46-100, 103, 107, 116, 117 (Supp. 1973). There are laws and regulations which require the state to evaluate an inmate’s progress toward rehabilitation in a state prison by observation and evaluation of conduct and performance in determining parole eligibility, but none in county jails. See Ark. Stat. Ann. §§ 43-2806 •— 9,46-103, 116, 117, 120, 120.1, 120.2, 120.3. And, as pointed out by Mr. Justice Powell in speaking for the U.S. Supreme Court in McGinnis, it would hardly be appropriate to undertake rehabilitation of one held in pretrial detention who was still cloaked with the presumption of innocence. These differences furnish a rational justification both there and here for the distinction made in promoting a legitimate state purpose to afford adequate observation of an inmate’s conduct and rehabilitative progress before he is considered for parole.

We note that, in entering its order, the trial court appended a direction that the Arkansas Board of Corrections give no credit to appellant for the time of pretrial confinement in determining parole eligibility. This portion of the order is not attacked on appeal, probably because the court’s action without this direction would likely produce the same result. Suffice it to say that we do not think the court had the discretion and power to direct the board’s action in this respect under existing law, even though it may once have had. See Ark. Stat. Ann. § 43-2807 (Supp. 1973). We consider it only to constitute a recognition by that court of the underlying reasons for the distinction of which appellant is complaining. Be that as it may, the significant questions before us are whether the court followed the dictates of the statute covering “jail time” credit, whether he abused his discretion in doing so, and whether the statute, as written or applied, violates equal protection requirements. Our answer is in the negative to all except the first, so the judgment is affirmed.


text:
    MOHAWK TIRE & RUBBER Company et al v. E. T. BRIBER
    74-242
    518 S.W. 2d 499
    Opinion delivered February 10, 1975

      Wright, Lindsey & Jennings, for appellants.

      Mike J. Etoch Jr., for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the employer, Mohawk Tire & Rubber Company, and its compensation carrier, Travelers Insurance Company, appeal from a circuit court judgment affirming an award of compensation benefits to the appellee-claimant, employee E. T. Brider.

The appellants have designated the points they rely on for reversal as follows:

“There is no substantial evidence in. the record that appellee sustained an accidental injury arising out of and in the course of his employment.
There is no substantial evidence in the record that appellee sustained any temporary or permanent disability.
Appellee’s claim is barred by the statute of limitations.”

We find no merit in the appellants’ first two points.

The appellee Brider’s testimony as to working conditions and the onset of his physical condition is not contradicted to any substantial degree. According to Brider’s testimony, he was employed by Mohawk in 1957, and for about 12 years he experienced no difficulty in unloading trucks and boxcars on a ramp outside the building where tires were manufactured. In April, 1969, he was transferred, at his request, to a better paying job inside the building where he was given the job of “post inflator.” This job consisted of removing hot tires from a conveyor belt as they came from the molding machine. According to Brider, the tires were hot and still smoking as they came from the molds and the air surrounding the area was heavily impregnated with smoke, dust and chemical fumes from the hot tires. Brider said that on the third or fourth day he worked as post inflator he suffered chest congestion, shortness of breath and he started coughing. On the fifth day he worked the cough became so severe it caused blackouts and was attended by shortness of breath and wheezing, so he took off from work and went to the company doctor, Dr. McCarty. He stayed off from work for about a week and when he returned, he again experienced the same difficulty. He went back to Dr. McCarty and was admitted to the Helena Hospital where he stayed for one week. Dr. McCarty then referred him to Dr. Milnor in Memphis who had him admitted to the Baptist Hospital in Memphis. He said he stayed in the Baptist Hospital for a week under the care of Dr. Milnor, and upon his return to Helena, Dr. McCarty requested Mohawk to remove him from the job as post inflator.

Brider said when he returned to work, he was assigned the duties of “green tire inspector,” but that it was in the same area about seven or eight feet distance from where he worked as post inflator. He said that while working as green tire inspector, he experienced the same trouble of chest congestion, shortness of breath, coughing, wheezing and blackouts. He said he reported his condition this time to supervisor Blackmon and went to see Dr. Daniel Tonymon who gave him a letter addressed to Mohawk advising that he could not work because of his condition. He said he delivered the letter to Mohawk officials and they sent him to another company doctor, Dr. Barnard Copes in West Helena. He said he continued to see Dr. Tonymon for over a year and a half while he was still working off and on at Mohawk. He said Dr. Capes sent him to Dr. Reynolds in Memphis and that he continued trying to work while an outpatient under Dr. Capes at the hospital in Memphis. He said that each time he returned to work, he would experience the same chest congestion, shortness of breath, coughing, wheezing and blackouts; that sometime he would work only one, two or three days before he would have to leave because of the attacks. He said that after working for about two weeks while an outpatient, Dr. Reynolds put him in the Baptist Hospital and performed an operation on July 14, 1971. He said part of his lung was removed in this operation and that following surgery he was off work until March 3,1972. He said he knew the supervisors at Mohawk knew he was going to Dr. Reynolds because he had been “getting benefits” in the amount of $85 per week from Mohawk, and these benefits ran out in January, 1972. He said he was discharged by Dr. Reynolds on March 3, 1972, whereupon he reported back to Mohawk and was assigned a janitorial job in the same work area of his previous difficulties.

Brider said that while engaged in the janitorial work he again experienced the same difficulty as before and after working about seven days, he had to be off again for a couple of weeks. He then returned to work at the janitorial job but only worked an hour when he again experienced the chest congestion, shortness of breath, coughing, wheezing and blackouts, and that on this occasion he reported his condition to his supervisor and had a guard call his wife who took him to a doctor. He said this time he went to a Dr. Miller because he did not feel he could “make it” to Dr. Tonymon. He said Dr. Miller put him in the hospital at Helena and that his employment was terminated on May 4, 1972. He said the company told him it would assume no further responsibility for medical bills and if he was going to another doctor, he would have to pay for it himself. He said Dr. Miller had made arrangements for his admission to the University Medical Center in Little Rock on May 18, but that he was terminated from employment before that date.

On cross-examination Brider said the last day he worked was April 4, 1972, and that he had not worked any at all for the past five months. He said he was still under the care of Dr. Miller and taking medicine prescribed by him. He said while working as post inflator, he devised a cloth mask he attempted to wear over his mouth and nose but when he was transferred to green tire inspection, the company furnished him a mask and he wore it upon the company’s recommendations.

The evidence is rather clear that Brider experienced a violent allergic reaction in his bronchial and respiratory passages while in contact with the smoke and fumes in the tire manufacturing process, but there is a conflict in the medical opinion testimony as to causation and extent of his disability. Brider underwent extensive medical examinations including a lung biopsy and pulmonary function studies. We deem it unnecessary to set out and compare all the medical evidence because we do not weigh the evidence in determining where the preponderance lies in law and compensation cases. In compensation, as in law, cases, we are confined to the record on appeal and if there is any substantial evidence to sustain the findings and award of the Commission, or jury, we must affirm. This rule is so well established citation is not necessary.

Dr. Daniel Tonymon said he had treated Brider on 53 occasions. He said in his opinion Brider was totally disabled because of the asthmatic attacks and shortness of breath, and Dr. Tonymon was of the opinion the disability was connected to the initial and subsequent exposure to something in the Mohawk plant. None of the chemicals used in the manufacture of the tires was identified except a few of the basic ones identified by a former fellow-employee of Brider. Dr. Robert Dan Miller, Jr., said he first saw Brider for treatment on March 18, 1972, and saw him 32 times between March 18, 1972, and July 31, 1973. He testified substantially as did Dr. Tonymon.

We are of the opinion there was substantial evidence that Brider was partially disabled because of spasmatic bronchial or asthmatic attacks in the presence of various substances, including chemical substances in the air inside the Mohawk plant, and that his contact and initial attack at the plant set his allergic reaction in motion.

The appellants’ third point on statute of limitations presents some difficulty. Ark. Stat. Ann. § 81-1318 (Supp. 1973) provides as follows:

“Filing of claims. — (a) Time for filing. (1) A claim for compensation for disability on account of an injury (other than an occupational disease and occupational infection) shall be barred unless filed with the Commission within two [2] years from the date of the injury. * *

Ark. Stat. Ann. § 81-1302 (i) (Repl. 1960) defines “compensation” as follows:

“ ‘Compensation’ means the money allowance payable to the employee or to his dependents, and includes the allowances provided for in section 11 [§ 81-1311], and funeral expense.”

Ark. Stat. Ann. § 81-1318 (b) (Supp. 1973) reads as follows:

“(b) Additional compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of injury, whichever is greater. The time limitations of this subsection shall not apply to claims for replacement of medicine, crutches, artificial limbs and other apparatus permanently or indefinitely required as the result of a compensable injury, where the employer or carrier previously furnished such medical supplies.”

On July 24, 1971, Dr. Leslie B. Reynolds, Jr., reported on Travelers Insurance Company (group insurance) form as follows:

“undiagnosed lung disease manifested by restrictive ventilatory impairment and intermittent bronchospasm. * * * Patient to be hospitalized for rib and lung biopsy..

On August 13, 1971, Dr. J. C. Lougheed reported on a similar form as follows:

“Pulmonary insufficiency and infiltration — cause undetermined. Dense pulmonary adhesions.”

Both of these reports state that Brider was disabled to work and would be so disabled for an undetermined period of time.

On August 20, 1971, Dr. Reynolds reported on Travelers form as follows:

“Pulmonary fibrosis with intermittent bronchospasm. * * * Lung biopsy 7-6-71 showed slight pleural and parenchymal fibrosis and anisotropic crystals presumably from inhaled material. Sample sent to Armed Forces Institute of Pathology, Washington, D.C. for analysis. Patient showing only minor improvement with corticort therapy and must still be considered disabled.” (Our emphasis).

On February 7, 1972, Dr. Reynolds submitted a letter-report reading in part as follows:

“The patient still has a restrictive ventilatory defect, which would limit his activity. This is probably permanent. Until the nature of the inhaled material is determined, it cannot be positively established whether this is responsible for his disability. We are making every éffort to obtain these data. I feel some sort of rehabilitation is in order, however, and believe Mr. Brider should attempt to return to light work on a gradual basis. Should he have attacks of bronchospasm as has been demonstrated before, certainly he cannot work. However, based on the data we have, I feel Mr. Brider can resume limited activity on a gradual basis. He should be watched by your plant physician, with whom I would be glad to discuss his care in greater detail.
I am submitting our statement with this letter.”

On February 28, 1972, Dr. Reynolds wrote a letter to Mohawk as follows:

Mr. Brider called me today and stated that, in the absence of a specific statement from us, he is unable to obtain employment of any type. I have gone over our records and have discussed this matter in some detail with Dr. Lougheed, the surgeon who did the lung biopsy on Mr. Brider, with reference to his probable capacity to work and, while we have not defined Mr. Brider’s ability to work, we can only restate that he has distinct lung pathology. Pulmonary functions show he has a mild, restrictive ventilatory defect. Periodically, he has attacks of bronchospasm characterized by a severe obstructive ventilatory defect and a decreased amount of oxygen in his blood. We have not established the cause of these attacks of bronchospasm but we suspect they may be related to inhaled material seen as microscopic refractile bodies in sections of his lung.
Apparently, the distinct statement relative to the weight Mr. Brider can carry is required by both your institution and the union. After extensive consultation, Dr. Lougheed and I agree that the following statement can be made: Attempts should be made to give Mr. Brider employment which would involve light work. We assess that he may carry 20 to 25 pounds without too much difficulty; however, he should not attempt to carry more than 75 pounds Between these limits, working conditions such as the presence of dust, or other materials which may cause his attacks oj bronchospasm would change the picture. It is expected that with a gradual increase in work load, Mr. Brider should gradually increase his work capacity.” (Our emphasis).

Brider first inhaled the fumes and experienced his first difficulty during the week between April 21 and April 28, 1969. He was sent to the doctor on April 22, 1969. The last injurious exposure to the chemical fumes at Mohawk occurred on March 10, 1972, and Brider filed his claim with the Commission on April 12, 1972. It was Brider’s first contention that his bronchial condition was an occupational disease or infection and the statute of limitations did not commence running on his claim until March 10, 1972, the date of his last exposure. The occupational diseases are set out in Ark. Stat. Ann. § 81-1314 (Supp. 1973) but asthmatic conditions or pulmonary allergic reactions to chemicals, fumes or substances (not resulting in dermatitis) are not among the diseases so listed, and this court is without authority to add to the list. Barentine v. Gleghorn Oil Co., 254 Ark. 182, 492 S.W. 2d 242.

Brider’s second contention was that he had been paid compensation in the amount of $85 per week and also medical benefits from January 18, 1970, to January 18, 1972, and that he filed his claim within one year of the last payment as permitted under § 81-1318 (b), supra. Mohawk contended that the $85 per week paid to Brider was under an entirely separate nonoccupational insurance policy and did not constitute the payment of workmen’s compensation in any sense of the word.

In awarding compensation benefits the Commission found as follows:

“The claimant suffered an injury, notified his supervisor, and the respondents provided medical care and paid him $6,784.66 in weekly compensation benefits under a company health and accident insurance policy.
The claimant’s claim was filed within a year of receiving medical benefits (compensation) and therefore, his claim is not barred by the Statute of Limitations (81-1318 [b]), Reynolds Metals Company v. Brumley, 226 Ark. 388.
It is further the opinion of the Commission that the actions of the respondents have estopped them from pleading the Statute of Limitations.”

We are of the opinion the statute was tolled in favor of Brider in this particular case. Mohawk had procured workmen’s compensation insurance coverage from the coappellant, Travelers Insurance Company and, in carrying out its employment contract with Brider and other employees through their labor union, Mohawk also procured from Travelers a group policy providing accident and sickness benefits for employees as follows:

“Section C — Accident and Sickness Benefits Effective November 1, 1970, and for the duration of this Agreement thereafter, the Employer will provide the following plan of accident and sickness benefits for all Employees.
1. Accident and Sickness Benefits for Employees a. General — Benefits will be paid because of a disabling accident or sickness while under the care of a doctor licensed to practice medicine.
Benefits will be payable from the first day of disability due to accident or occupational illness, the eighth day of disability due to non-occupational sickness or the first day of hospital confinement if occurring prior to the eighth day. Benefits will be paid for the duration of the disability not to exceed 52 weeks for each period of disability. * * *
b. Benefits — The amount of weekly benefit will be $85.00. The amount of weekly accident and sickness benefits otherwise payable will be reduced for each week in excess of 26 weeks of benefits during any one continuous period of disability. * * *
2. Deduction for Workmen’s Compensation Benefits In the event that an Employee received weekly compensation under a Workmen’s Compensation Act for any period with respect to which he is also entitled to weekly benefits under Paragraph 1 of this Section C, the amount of such weekly compensation payable under such Act shall be deducted from the amount of the weekly benefit otherwise payable to such Employee under said Paragraph 1.” (Our emphasis).

As already pointed out, the appellant Travelers Insurance Company had both compensation and group coverage on Mohawk employees. The group policy was payable from the first day of disability due to accident or occupational illness and provided for payments in the amount of $85 per week. The weekly payments were larger but of shorter duration than compensation payments under the workmen’s compensation coverage.

Brider started drawing disability payments under the group policy October 27, 1970, and was paid intermittently through January 18, 1972. These payments were made on the basis of the company physician’s diagnosis of “bronchial trouble.” The payments were apparently made following execution of “claim statement” and “release of medical information” forms by the claimant-employee and the attending physician. Only one set of these completed forms appears in the record. There is no evidence as to who actually filled out the forms but on the claim statement form dated October 31, 1970, and signed by attending physician C. P. McCarty, the cause of disability was designated “bronchial trouble,” and the question as to whether the disability was due to accident, was answered “no.” This form was signed by E. T. Brider but there is a handwritten “X” preceding his signature in-ddaiing that someone other than Brider filled out the form and designated the place where Brider was supposed to sign. This form is in the record as “respondent’s exhibit No. 3” and attached thereto is “release of medical information” form dated April 3, 1970, signed by Brider. Part “B”of this form is designated “attending physician’s statement.” Dr. Daniel Tonymon signed this form under date of April 6, 1970, and under “Diagnosis and Concurrent Conditions” he stated:

“Chronic allergic bronchitis complicated by bronchial vascular congestion and spasm.” (Our emphasis).

The Commission found that all medical treatment to date of the hearing had been paid by Travelers, and that the claim for medical treatment had not been controverted in this case. Under our statute Ark. Stat. Ann. § 81-1302 (i) (Repl. 1960), supra, compensation means the money allowance payable to the employee or his dependents and includes medical payments. We have held that the furnishing of medical services constitutes payment of compensation and is a waiver or suspends the running of the statute of limitations. Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 SW. 2d 211. In such cases the statute of limitations runs from the date of the last treatment. McFall v. U.S. Tobacco Co., 246 Ark. 43, 436 S.W. 2d 838; Heflin v. Pepsi Cola, 244 Ark. 195, 424 S.W. 2d 365.

As already stated, § 81-1302, supra, defines “compensation” as meaning “the money allowance payable to the employee or to his dependents ...” and we have held that compensation refers to money benefits paid to the injured employee for disability. Brooks v. Ark. Best Freight, 247 Ark. 61, 444 S.W. 2d 246. In the case at bar, as already stated, the appellant insurance carrier had both the compensation and group insurance coverage for Mohawk. The group coverage benefits were also payable for disability due to accident or occupational illness and were in excess of the amount payable under the workmen’s compensation coverage required by law. In Larson, Workmen’s Compensation Law, § 78.43 (a) is found the following:

“When payment of either income or medical benefits has been made by a private employer-employee benefit association or insurance plan, this has usually been held to toll the statute.”

We deem it unnecessary to discuss this case from the viewpoint of whether the statute runs from date of accident or from date of injury (as amemded in 1948), or whether our statute is purely a statute of limitations or repose and goes to the remedy rather than the right; for, we conclude that the statute of limitations in this case was tolled by the payment of compensation in the form of medical benefits, if not included in the $85 weekly payments credited by Travelers to its group coverage. We further conclude that the Commission did not err in holding that the respondent insurance company was es-topped from pleading the statute.

The judgment is affirmed.

Fogleman, J., dissents.

      Ark. Stat. Ann. § 81-1311 (Repl. 1960) provides for medical payments.


author: Joe D. Woodward, Special Justice.

text:
    FIRST STATE BUILDING AND LOAN ASSOCIATION, Mountain Home, Arkansas v. ARKANSAS SAVINGS AND LOAN BOARD and HOME SAVINGS AND LOAN ASSOCIATION
    74-244
    518 S.W. 2d 507
    Opinion delivered February 10, 1975

      Roy E. Danuser and Catlett & Henderson, for appellant.

      Lester & Shulls and Kelly & Luffman, for appellees.
   Joe D. Woodward, Special Justice.

On December 26, 1973, the Appellee, Arkansas Savings and Loan Board, granted the application of Home Savings and Loan Association to begin business as a savings and loan association in the City of Mountain Home.

The Appellant, First State Building and Loan Association of Mountain Home was a protestant to the application and appealed the finding of the Board to the Pulaski Circuit Court under the provisions of the Administrative Procedures Act.

The Circuit Court remanded the matter on April 3, 1974, to the Board for the Board to incorporate in its order “finding of fact and conclusions of law, separately stated” upon which the Order of the Board was based.

Thereafter on April 8, 1974, the Board issued a new Order which was affirmed by the Circuit Court.

The Appellant relies on two points for reversal. The first is that the findings of fact made by the Board in its Order of April 8, 1974, again failed to meet the requirements of Ark. Stat. Ann. Sec. 5-710, Supp. 1973.

The second point is that the Order of the Board approving Appellee’s application was not supported by substantial evidence of record.

The record in this case is voluminous. The Hearing before the Board was protracted. Many detailed and complicated exhibits are in the record. The testimony of some eighty-seven witnesses is spread out through several volumes of testimony.

This Court has recognized that a threshold question exists in cases brought here from administrative agencies and that question is: “Has the agency followed the dictates of Ark. Stat. Ann., Sec. 510 (Supp. 1973) by providing the concise and explicit findings of fact and conclusions of law separately stated in its Order.”

Professor Davis, in his Administrative Law Treatise (1968, Sec. 16.05) summarizes the reasoning underlying the law which requires explicit and concise findings of fact in administrative agency orders:

“The reasons have to do with facilitating judicial review, avoiding judicial usurpation of administrative functions, assuring more careful administrative consideration,helping parties plan for rehearings and judicial review and keeping agencies within their jurisdiction. ”

The Board in this case did not state the underlying facts upon which the Order was based in a concise and explicit manner at the first Hearing (December 26, 1973) nor did they do so at the second Hearing (April 8, 1974). The Board simply based its first Order on the statutory language of Ark. Stat. Ann., Sec. 67-1824 (Repl. 1966) and merely rearranged that wording in its second Order (April 8, 1974). We do not know, from the Order, what specific facts the Board relied upon in granting the application and we will not attempt to supply the deficiencies in an administrative Order by weighing evidence which is the responsibility of the administrative agencies.

The Appellee argues that Appellant should have come forward after the Circuit Court remanded the Order on April 3, 1974, to assist in rewriting the Order or to make its objections known at that time. The Appellee contends that having not done so, the Appellant waived the matter.

This Court held in Arkansas Savings and Loan Board et al v. Central Arkansas Savings and Loan, 256 Ark. 846 (1974) that the requirements of Ark. Stat. Ann., Sec. 5-710, Supp. 1973 are primarily for the benefit of the reviewing Court and cannot be waived by the parties.

We are, therefore, unable to answer the threshold question in the affirmative and need not reach the second question of whether the Order was based upon substantial evidence at this time.

The judgment is reversed and the cause remanded through the Circuit Court to the Board for such further proceedings as may be necessary.

Conley Byrd, J., not participating.


author: PER CURIAM

text:
    Kenneth SNELLING v. STATE of Arkansas
    CR 74-131
    519 S.W. 2d 52
    February 10, 1975
   PER CURIAM

The appellant, Kenneth Snelling, was identified by police Officer Sparks as the one who sold and delivered to him controlled substance in violation of Act 590 of 1971 (Uniform Controlled Substance Act).

The appellant’s brother Garry, testified that one Steve Welton had the drugs in his apartment; that he and the appellant took Officer Sparks to Steve’s apartment; that Steve was “barbed out” and at Steve’s request, the appellant got the drugs for Sparks and delivered the drugs to him. He said he saw the appellant hand the money to Steve.

The appellant testified that the transaction was actually between Officer Sparks and Steve and that fifty cents per capsule was agreed upon through price negotiation for large quantities. He said that Steve was pretty high on the drug and that Steve asked him to get the drugs and give them to Sparks. He said he did get the drugs and give them to Officer Sparks and that he took $12.50 for the drugs and gave it to Steve.

The appellant was represented by the Public Defender at the trial and was sentenced to three years in the penitentiary.

On appeal to this court the Public Defender has made a motion pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967) that the appeal to this court has no merit. The Attorney General has submitted a brief and agrees with the Public Defender. We agree with both of them and affirm the conviction.

The judgment is affirmed.