author: George Rose Smith, Justice. George Howard, Jr., Justice,

text:
    Clarence Sidney ALEXANDER v. STATE of Arkansas
    CR 77-210
    569 S.W. 2d 106
    Opinion delivered July 17, 1978
    (In Banc)
    [Rehearing denied September 5, 1978.]

      William Palma Rainey, for appellant.

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

After midnight on the morning of September 4, 1975, Terry Wyrick, a young filling station employee working at a Fina station near Turrell, was shot twice and robbed. Clarence Sidney Alexander (the appellant) and William Lee Fowler were promptly arrested and presumably charged with aggravated robbery. Upon Wyrick’s death 17 days later the two men were separately charged with capital felony murder. Fowler later pleaded guilty and was sentenced to life imprisonment. Alexander pleaded not guilty, was tried by jury, and now appeals from a verdict and judgment finding him guilty and sentencing him to life imprisonment without parole. His appointed counsel argues a number of points for reversal, none of which we find to have merit.

Our statement of the facts is taken in part from Alexander’s confession. We therefore hold at the outset that the trial judge’s finding that the confession was voluntary is not clearly erroneous. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1974). To the contrary, the preponderance of the proof supports the trial judge’s conclusion. The testimony of the officers, to the effect that Alexander was fully warned of his rights and made a voluntary statement, was not contradicted. At the Denno hearing, after the situation had been explained to Alexander, he elected not to testify.

The State’s proof of guilt was so persuasive that no question is raised here about the sufficiency of the proof. Alexander’s confession was introduced; Fowler testified for the prosecution. According to both of them, they decided to rob the Fina service station attendant. As planned, Alexander distracted the attention of the victim, Wyrick, while Fowler crept up behind him and hit him on the back of the head with a hammer. When Wyrick fell, his pistol dropped out of his pocket. Alexander picked up the pistol and shot Wyrick in the back of his neck. After Alexander and Fowler had gotten back in their car and driven a short distance, Alexander stopped the car and walked back to the station. There he shot Wyrick again, this time in the face, and took $50 from his pocket. In his confession Alexander said he shot Wyrick the second time because Wyrick grabbed Alexander’s wrist and he couldn’t get loose.

During Alexander’s interrogation he told the officers that he had left the pistol with Albert Mosby, a friend who lived in Memphis. Alexander supplied Mosby’s telephone number. When an officer called Mosby, he acknowledged that he had the gun that Alexander had left with him. Alexander then went to Memphis with two officers and showed them where Mosby lived. Mosby turned the gun over to the officers and testified that they treated him with courtesy. There was no search of the premises, nor any violation of Alexander’s rights. Upton v. State, 254 Ark. 664, 497 S.W. 2d 696 (1973). In fact, the main objection made below — that the search was the fruit of the poisonous tree — is rebutted by our holding that the confession was voluntary. Ballistics tests showed that the two bullets taken from Wyrick’s body had been fired from the gun in question, which Alexander identified on the Memphis trip as the one that he had used.

We consider next the trial judge’s refusal to relieve William Palma Rainey as Alexander’s appointed defense counsel. Some six months after Rainey’s appointment he formed a law partnership with Kent Rubens. Rubens had represented Fowler for a short time, by appointment, but he was relieved when it appeared that he might be serving in the legislature when Fowler was to be tried. After the partnership was formed Rainey asked that he be relieved as counsel for Alexander, because he needed Rubens’s assistance at the trial, and Rubens had learned facts from Fowler that would prevent Rubens from properly representing Alexander.

We find no error in the trial court’s refusal to relieve Rainey. The three reasons relied upon in the assertion of error are not sound. First, it is argued that Rubens could not properly cross-examine Fowler, because of the information Rubens had learned from Fowler. That contention overlaps the second one, that Rubens could not argue to the jury, with regard to Alexander’s possible punishment, that Fowler was more at fault than Alexander. The record reflects, however, that Rubens did cross-examine Fowler, with no indication that he was hampered in doing so. As to the possible punishment, Alexander received the lighter of the only two penalties, death or life imprisonment without parole, that the jury could have imposed. Thus no prejudice is shown. The third argument, that Rubens’s knowledge would be imputed to Rainey, is without merit. Under the wording of the partnership statute, the knowledge was not imputable to Rainey, as it was not information that Rubens reasonably should have communicated to Rainey. Ark. Stat. Ann. § 65-112 (Repl. 1966). Moreover, Rubens has stated that he did not reveal the information to Rainey.

Another point for reversal arises from an incident that occurred outside the courtroom before the trial began. Later, after the noon recess, the court considered the incident in chambers. Mrs. Richardson, a juror who had already been accepted, had reported the matter to the court during the noon recess, in the presence of counsel. As the court remembered it, Mrs. Richardson reported that Mrs. Wyrick, the mother of the victim, had identified herself and talked with Mrs. Richardson and two other women who were members of the jury panel. The conversation occurred in the hallway in front of the courtroom, at 9:30. Mrs. Wyrick made the statement that her son was the victim of the crime and that the defendant was the person who shot him. Mrs. Wyrick indicated two places in the face where her son was shot and said that it was cold-blooded murder.

The court conducted an in-chambers hearing, at which both Mrs. Wyrick and Mrs. Richardson testified. According to their testimony, the incident does not appear to have been as serious as Mrs. Richardson reported it. Mrs. Wyrick testified that no one else was present during the conversation, another woman nearby having walked away as the two began to talk. Mrs. Richardson said that two other women were standing near her when Mrs. Wyrick approached. Mrs. Richardson did not say that the other women heard the conversation, but her testimony does not exclude that possibility. Mrs. Richardson said that she could not recognize the other two women and that she had looked around the courtroom and had not seen them.

Both Mrs. Wyrick and Mrs. Richardson were examined and cross-examined, but neither testified that there had been any reference to cold-blooded murder. Mrs. Wyrick testified that while she was eating lunch at a Tastee Freeze Mrs. Richardson came up to the car to explain that she had reported the incident to the court. During that conversation Mrs. Richardson said that in her opinion, “We ought to kill more of these black sons-of-bitches.” (The appellant is black.) That conversation, however, was solely between the two. There is not the slightest indication that Mrs. Richardson’s prejudice was expressed to anyone else connected with the case. Mrs. Richardson was, of course, excused as a juror.

The trial judge denied a defense motion either for a mistrial or for an entirely new jury panel. The judge offered to have Mrs. Wyrick and her husband stand up before the jury, to see if any jurors could say that they had talked to either, but defense counsel declined that offer. The judge also suggested that any possibility of harm could be eliminated by counsel, by their asking the jurors if they had talked to anyone in the courthouse about the case. Apparently counsel did not pursue that course. The judge, in denying the motion, noted that the case had been set for trial two or three times, that it had been continued each time at the request of the defense, that the only three available days had been set aside for the trial, that a new jury panel could not be selected in time to use those days, and that another continuance would mean a postponement for several months.

We cannot say that the trial judge was wrong in refusing to grant a mistrial or to discharge the entire jury panel and postpone the trial. In a matter of this kind we must rely primarily upon the discretion of the trial court, reversing his decision only if an abuse of that discretion clearly appears. Here, except for the reference to cold-blooded murder (which the State’s proof showed it to have been), Mrs. Wyrick did not make any statement of fact to Mrs. Richardson that was not brought out at the trial by undisputed evidence. Mrs. Richardson herself was excused from the jury. There remains the possibility that two other members of the jury panel heard what Mrs. Wyrick said. That possibility is suggested only by the trial judge’s recollection of what Mrs. Richardson said in her first report to him. It is not borne out by her testimony under oath, nor by that of Mrs. Wyrick. The trial judge had the decisive advantage of seeing and hearing Mrs. Wyrick, and also Mrs. Richardson both when she made her original report and when she repeated it under oath. The trial judge concluded that a mistrial was not required. Under the circumstances no abuse of discretion is shown.

Complaint is made about two remarks by the prosecutor that were belittling to defense counsel. The remarks should not have been made, but they were not so serious as to call for the drastic remedy of a mistrial. Back v. Duncan, 246 Ark. 494, 438 S.W. 2d 690 (1969). Any possibility of prejudice could have been eliminated by an admonition to the jury, but no such action was requested. In fact, the trial judge did admonish the jury, on his own initiative, after the second remark was made.

There is no merit in the argument that the trial judge should not have asked a witness certain questions to bring out a pertinent fact that had not been elicited by counsel. The questions were proper. Sharp v. State, 51 Ark. 147, 10 S.W. 228, 14 Am. St. Rep. 27 (1888).

The trial was bifurcated. When the jurors were polled after their verdict of guilty, one juror answered that that was not her verdict. She explained, however, that she was not for electrocution and that her verdict at that stage of the trial was “guilty.” Counsel, “for the purposes of the record,” asked for a mistrial, but there was obviously no prejudice whatever.

Before the trial the judge denied a defense motion that all the prosecuting attorneys, circuit judges, and circuit clerks be summoned to testify about the imposition of the death penalty in Arkansas. See Alexander v. State, 260 Ark. 785, 545 S.W. 2d 606 (1976). We need not discuss that ruling, because the jury’s failure to impose the death penalty makes the proposed testimony immaterial. We have also examined other objections made in the course of the trial and find no asserted error that warrants discussion.

Affirmed.

Hickman and Howard, JJ., dissent.

George Howard, Jr., Justice,

dissenting. Among other things, the appellant, who was convicted of capital felony murder and received confinement to the State Department of Correction for life without parole, has pressed for reversal of his conviction, alleging the following:

1. The trial court erred by denying appellant’s request for either a mistrial or that a new panel of jurors be brought in because of prejudicial remarks being made in the presence of prospective jurors by the mother of the deceased, Terry Wyrick.

The majority, in rejecting this claim as grounds for reversal, has concluded:

“We cannot say that the trial judge was wrong in refusing to grant a mistrial or to discharge the entire jury panel and postpone the trial. In a matter of this kind we must rely primarily upon the discretion of the trial court, reversing his decision only if an abuse of that discretion clearly appears.”

In considering the totality of the circumstances involved in conjunction with the uncontradicted evidence that the mother of the victim made highly prejudicial remarks in the presence of prospective jurors that possibly convicted appellant and sentenced him to the Department of Correction for life without parole, the majority’s posture in affirming this conviction is not well founded.

First, the record reflects that prior to the noon recess and while Mrs. Georgia M. Richardson was being questioned about her qualifications to serve as a juror, she testified as follows:

THE COURT:
“Q. Do you know anything about the case itself, either from what you may have read or heard discussed?
“JUROR RICHARDSON: No, sir.
* * *
“Q. Do you know of any fact, thing or circumstance whatsoever as to why you feel like you could not Or should not serve as a juror in the trial of this case?
“JUROR RICHARDSON: No, sir.”

Secondly, upon returning from the noon recess, Mrs. Georgia M. Richardson, a juror who had been called from the regular petit jury panel to the jury box, advised the court that she had been contacted by the mother of the victim, but this conversation apparently was not recorded, and thus, what follows below is a summary by the court, while in chambers and in the presence of appellant and counsel for the state and appellant, of what the juror had advised the court:

“THE COURT: At the noon recess at approximately 12:00 o’clock, the jury having been admonished, the jury panel having been admonished, and recessed for lunch until 1:30, a Mrs. Georgia M. Richardson, who had been called from the regular petit jury panel to the jury box, voir dired by the Court, and by the Prosecuting Attorney or prosecution voir dire having been waived as to this juror, and she having been accepted by the State, the juror came to the Court immediately after the recess and indicated that in view of the Court’s admonition, she wanted to bring to the attention of the Court that this morning, prior to the court being convened at 9:30, she, along with two other women whom she recognized as being members of the jury panel, but did not know them by name, were standing in the hallway in front of the courtroom at which time a woman, who she understood was the mother of the victim, Terry Wyrick, made the statement to or in her presence as well as the other two women to the effect that her son was the victim in this crime, that the defendant was the individual or person who shot her son. She, indicating that the mother had pointed to two different places in the face and perhaps other points where her son was allegedly shot, the victim’s mother at the time stating at the time that it was cold blooded murder.”
* * *
“MR. RAINEY: I might add that she did add that there were two other people that she knew that were prospective members of the panel. She did not state whether or not they were in the box at that time or not though.
“THE COURT: I don’t recall whether I actually asked her that or not, but they were not in the box, but on the panel. Perhaps that was an assumption on my part.”

Mrs. Flossie Wyrick, mother of the victim, was called in chambers to testify about the incident and the following is relevant parts of her testimony:

BY THE COURT:
“Q. Now, it has come to the attention of the Court from some of the prospective jurors that this morning before the Court convened, in other words, before 9:30, or that some time this morning, at least, you had made certain statements concerning the manner in which your son met his death.
“A. No, I said that he was shot in a robbery.
“Q. In a robbery?
“A. Yes.
“Q. Where were these statements made or how many times did you say it?
“A. One time, right outside the courtroom door when I was standing there talking to a lady. I never seen the lady before, didn’t even know her name.
“Q. How many were present at the time; yourself, who else was with you?
“A. Well, no one. . . .
* * *
“Q. You say that you did not know this woman to whom you made this statement?
“A. No.
“Q. Were you talking directly to her?
“A. Well, we were just standing, you know, talking and she said that she had never been in a trial or anything.
“Q. Did she indicate why she was here or how she happened to be here?
“A. Not until after I had talked to her.
“Q. What was said at that time?
“A. She told me that she was here for a jury.
“Q. For jury service?
“A. Yeah.
“Q. Was anyone else present besides her —
“A. ... No, there was another woman standing there but she had walked — I don’t know where she had went because this woman had been talking to the other woman.
“Q. Now, as nearly as you recall, what did you say?
“A. I told her that I was the mother of the boy that was shot and she asked me where it had happened at and I told her at Turrell. She said that she didn’t recall anything about it and I said that it had been almost two years aago, about eighteen or nineteen months ago that it happened.
“Q. Was anything else said that you recall?
“A. Not that I recall.
“Q. Did you make any statements as to how many times he was shot or where he was shot?
“A. I might have; I wouldn’t say that I didn’t, but I don’t know it if I did.”

CROSS EXAMINATION BY MR. RUBENS, ATTORNEY FOR APPELLANT:

“Q. Were there other people around when you were talking?
“A. Well, she first went to talking to another lady standing there and she turned and started talking to me and this lady walked off. And then at lunch, we went over to this Tastee Freeze over here to get us a hamburger for lunch and she come up to the car and commenced to talking and I turned my back and I wouldn’t listen to her. I hate to repeat some of the things that she said.
* * *
“Q. Okay. Now, what did this Mrs. Richardson tell you at noon? I believe that you don’t have to worry; you will not be in contempt if you use the word. I think that is what is bothering her, Your Honor.
* * *
“A. . . . She says, ‘I have told them about talking to you.’ She says, ‘I am sorry.’ I said, ‘That’s okay.’ I understood it. And she said they’re going to call it a mistrial. Well, I just kind of turned my head, you know, trying to ignore her and let her go on because I knew I wasn’t supposed to be talking to her. And she says, ‘My opinion,’ she says, ‘We ought to kill more of these black sons-of-bitches.’ Now, that is just what she said. So I just turned my head and turned my back that way and that was it. And then when my husband came out, I told him what she said. I said, ‘I don’t even want to talk to her.’
“Q. Now, when you found out from Mrs. Richardson that there was going to be this mistrial, what action did you take?
“A. I didn’t say anything.”

Mrs. Georgia M. Richardson, the juror who was sitting in the box at the commencement of the noon recess, testified in relevant part, as follows:

BY THE COURT:
“Q. If you would, for the record, will you tell us about the statement you told this woman made earlier to you?
“A. The statement she made to me was that she was his mother and that he had been shot in the chest and the head by this boy here and robbed, killed and robbed by this boy here, and that her son run a service station in Turrell, Arkansas.
“Q. . . . Did she point out any individual or identify any individual?
“A. Well, he was sitting at the table in the courtroom.
“Q. In the courtroom?
“A. Uh-huh.
“Q. Did she express any opinion as to guilt or innocence or who was guilty?
“A. No more than she was the mother and her son was nineteen years old, but she did say that it was two years old.”

CROSS EXAMINATION BY MR. RUBENS, ATTORNEY FOR APPELLANT:

“Q. You said now she did tell you that this young man did do it; is that not correct?
“A. Yes.
“Q. All right. Was there anyone else there?
“A. Yes, there was two more ladies there. I don’t -—
“Q. . . . [W]ere these two ladies white, black?
“A. Yes, they were white. (Emphasis added)
* * *
“Q. Did you and those other ladies discuss that after she —
“A. ... No.
“Q. But you all heard it?
“A. When he said — well, this is how come me to say it. If I had known that I was going to have to go through all of this, I wouldn’t have done it anyway.
“Q, . . . [D]id anybody during a recess or anything, did you talk about this with any of your fellow jurors?
“A. No, I seen the mother at the little drive-in down here and I told her that I was sorry if I caused her any hardship. I told her that at the little drive-in where I went to eat.
“Q. Do you recall her comments to you?
“A. She told me that was all right, that she didn’t have no hard feelings.”

It is obvious from this record that two other prospective jurors were in the presence of Mrs. Georgia M. Richardson when the victim’s mother made the prejudicial remarks. This conclusion is so clear and apparent that even the trial judge, in his summation, concluded that two other prospective jurors were present. Yet, the majority concludes in its opinion:

. . There remains the possibility that two other members of the jury panel heard what Mrs. Wyrick said. That possibility is suggested only by the trial judge’s recollection of what Mrs. Richardson said in her first report to him. It is not borne out by her testimony under oath, nor by that of Mrs. Wyrick.”

The majority also relies upon the assumed objectivity of the trial court in the whole matter in affirming appellant’s conviction by asserting:

“. . . The trial judge had the decisive advantage of seeing and hearing Mrs. Wyrick, and also Mrs. Richardson both when she made her original report and when she repeated it under oath. The trial judge concluded that a mistrial was not required. Under the circumstances no abuse of discretion is shown.”

But was the trial judge truly objective in considering appellant’s motion for a mistrial? I submit, this record demonstrates clearly that the trial court was committed to trying appellant and was not agreeable to a rescheduling of the appellant’s case. This conclusion is inescapable from the majority’s finding in its own opinion as follows:

“The judge, in denying the motion, noted that the case had been set for trial two or three times, that it had been continued each time at the request of the defense, that the only three available days had been set aside for the trial, that a new jury panel could not be selected in time to use those days, and that another continuance would mean a postponement for several months.”

It must be remembered that under American Jurisprudence, every defendant, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies, has an unfettered right to an unbiased and unprejudiced jury in the trial of his case. This is an inseparable and inalienable part of the right to a trial by jury guaranteed by the Federal Constitution. See: Turner v. State of Louisiana, 379 U.S. 466, 85 S. Ct. 546 (1965); State v. Rector, 164 S.E. 865. Moreover, rationing justice or placing “time” in superior posture to a fair and impartial trial is foreign to American Jurisprudence.

It is clear from this record that when the mother of the victim approached Mrs. Georgia Richardson, the juror who reported the incident, there were two other prospective jurors who were in the presence of Mrs. Richardson at the time, but Mrs. Richardson, nor the victim’s mother could identify them for the court. In overruling appellant’s motion for mistrial, the court, obviously, assumed, without knowing for sure, that the other prospective jurors who were in the presence of Mrs. Richardson at the time the incident took place, did not serve on the jury that convicted appellant. It must be remembered that Mrs. Richardson stated, after she had advised the court of the communication, that if she had known that such revelation would cause the repercussions created, she would not have mentioned it to the court at all. Thus, it is logical to assume that the other two prospective jurors did not come forth and advise the court of the communication on the part of the victim’s mother and remained silent in order to avoid any repercussions or the circumstances that Mrs. Richardson found herself and later expressed regret.

It must be remembered that only these two women could say whether they overheard the conversation between juror Richardson and Mrs. Wyrick. Any testimony as to whether the women heard the conversation, without more information, would be speculative under the circumstances. The record shows that the following women served on the jury that convicted appellant: Jeanette Coley, Ola Jeffers, Ruby Inez Freeman, Brenda Edmonson, Janie Spence, Daisy Russell, Donna Thompson, Bula Needham and Mary Chism.

It cannot be said, from reviewing this record, that there is not a reasonable possibility that the remarks complained of on the part of the mother of the victim might have contributed to appellant’s conviction. A fundamental and basic right is involved and the only avenue available to the trial court to be certain that appellant had not been prejudiced was by granting a mistrial. See: Felton Adams v. State, 263 Ark. 537.

The majority places great emphasis and reliance in sustaining the trial court by stating that the trial court offered to have Mr. and Mrs. Wyrick, the parents of the victim, stand in the presence of the jury in order to determine if any of the jurors had talked to either. However, defense counsel objected. I submit that defense counsel was correct in objecting to this procedure because it would have simply reemphasized or compounded the predicament in which appellant found himself and it would have identified the parents to the jury and created sympathy for them at the detriment of appellant.

Finally, it is significant to note that Mrs. Richardson told Mrs. Wyrick that she had been advised that because of the incident, the case would be declared a mistrial. It is clear from this statement that obviously Mrs. Richardson was communicating with someone who was representing the State or led her to believe that the State had concluded that a mistrial should be declared.

I would, therefore, reverse and remand to the trial court for a new trial.


source: Caselaw Access Project

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

license: Public Domain

text:
    ZERO WHOLESALE GAS CO., INC. v. June STROUD
    77-182
    571 S.W. 2d 74
    Opinion delivered July 17, 1978
    (Division II)
    [Supplemental Opinion on Denial of Rehearing October 9, 1978.]

      Atchley, Russell, Waldrop & Hlavinka, by: Victor Hlavinka, for appellant.

      Young, Patton & Folsom, by: Damon Young, and Hubbard, Patton, Peek, Haltom & Roberts, by: William L. Peek, Jr., for appellee.
   John A. Fogleman, Justice.

Appellee sued appellant Zero Wholesale Gas Company and Butane Gas of Hope to recover for damages to her restaurant arising out of a gas explosion and fire which occurred on December 23, 1975, on premises owned by Butane Gas Company of Hope, Inc., and on which it operated a propane gas storage yard. Appellee alleged that both defendants were guilty of negligence which was the proximate cause of her damages and that they were strictly liable for miscarriage of an ultrahazardous activity. The case was submitted to the jury on both theories. The jury answered interrogatories finding that neither party was guilty of negligence, but that appellant was guilty of miscarriage of an ultrahazardous activity which was the proximate cause of appellee’s damage. The verdict fixed appellee’s damages at $26,500. Appellant urges three points for reversal, but all are premised upon the same basic contention, i.e., that the evidence failed to show any basis for a finding of miscarriage of an ultrahazardous activity by it. One point for reversal relates to the giving of instructions on that theory, another to the existence of evidence to support the verdict and the third to the applicability of the theory to the facts.

The fire and explosion occurred when a delivery of propane gas was being made by appellant to the storage yard of Butane Gas of Hope in a tractor-trailer transport truck, driven and operated by Francis Garland (Pat) Reeves. When the transport truck arrived, two of the delivery trucks owned and operated by Butane Gas were being filled from storage tanks at the yard in order to make deliveries to retail customers.

Appellee called Harry Burns, Director for the Liquified Petroleum Gas Board for Arkansas as a witness. He testified that both propane and butane gas are inherently dangerous, highly flammable products that require skill in handling. On cross-examination he said that propane is a substance that is in common usage in areas where natural gas is not available and that the likelihood of injury or damage is greatly reduced if the utmost care is used. According to Burns, whenever a hole develops in a propane vessel, there is a good deal of clouding and spewing which is attributable to vaporization. Burns said that propane tends to vaporize at any temperature above 44 degrees below zero and that at about 50 degrees Fahrenheit, there is 60 to 80 pounds per square inch pressure in propane. Burns investigated the fire at the storage yard two or three hours after it occurred. At that time appellee’s restaurant next to the storage yard had been completely consumed by fire. He found that the gas company’s tank No. 1 became overheated and ruptured and that its head had been propelled across Highway 67 and into an adjacent field by expansive forces produced by fire; tank No. 2 was off its support but remained on the premises; tank No. 3 was ruptured but was still in the area; the fourth tank was ruptured and severely distorted due to overheating but remained on its supports; a fifth tank remained intact on its supports, but was severely distorted from heating of the metal. Burns found a large tanker type transport truck owned by appellant in the storage yard. It had been brought there to deliver propane gas to the storage yard by Pat Reeves, an employee of appellant.

A properly operating relief valve on a transport truck belonging to appellant was found open by Burns. The cab of the truck was severely damaged and several tires were burned away. A hose that was attached from the discharge connection of the transport truck to the discharge or field connection of the 30,000 gallon tank bore indications of having been subjected to flame and intense heat. He found the hose ruptured.

A pump is used to force gas from the transport truck into a storage tank. The pump is operated by a power take-off with which the transport truck is equipped. Burns said that Reeves stated that he had been in the process of engaging the power take-off when the explosion occurred. Burns testified that there had apparently been a discharge of gas from the hose but there would be no fire at the point where the gas was escaping. He stated that the velocity of the gas would have to approximate seven feet per second before a flame would burn.

Reeves testified that he had been using the transfer hose for two or three years. It was a regulated propane hose with working pressure rating of 350 pounds per square inch and a minimum bursting pressure rating of 750 pounds per square inch. Reeves said that he had left the truck motor running according to standard procedure in order to operate the pump, had hooked up the power take-off shaft, had fastened his hose to the storage tank and opened three valves, but had not opened a valve which, when closed, prevented .the flow of gas into the hose when “the excitement started,” while he was engaging the clutch to operate the power take-off. He said he turned and immediately saw fire 40 to 50 feet from him in the pump area where one of the delivery trucks had been loading. He described the fire as being a large hot one which occurred in a flash. Reeves ran down the road to a point of safety where he was joined two to four minutes later by Carlton Terry, the driver of one of the delivery trucks.

At the time of the “excitement” Reeves had opened a valve which would permit gas to flow from the 30,000 gallon storage tank, but he had not attached a vapor line which equalized the pressure between the storage tank and the transport tank, because this is the last step in the process of transferring the gas from the truck to the storage tank. Because of the presence of the delivery trucks, Reeves was unloading from a place he did not usually park.

Carlton Terry said that he immediately fled the scene when he heard the explosion and, as he was running down the road, he looked back and saw fire coming from the front of appellant’s truck. Monty Malone, who lived in a mobile home 25 yards from the storage tanks looked out his window when he heard something similar to a sonic boom. He said he saw fire coming from beneath appellant’s truck near the rear of the trailer on the driver’s side. He said that, while he had seen gas dripping from the hose on the truck, he did not see flame shooting out from it.

According to the owner of Butane Gas Company of Hope, when he and his employees went to the place the delivery truck had been left to close off or cap valves to prevent the outflow of fuel, there was gas flowing out of the relief valve on appellant’s transport truck. He testified that the valve had been closed, but reopened and was left open, because it was better to have the fuel burn than to have raw fuel in the atmosphere. He said that the fuel from the transport truck burned for two or three days. He found the 30,000 gallon tank empty and said that it had contained 13,-000 to 14,000 gallons before the fire.

We do not agree with appellant’s contention that the delivery of propane gas is not, as a matter of law, an ultra-hazardous activity. Appellant correctly points out that we have stated that an activity is ultrahazardous if it (a) necessarily involves a risk of serious harm to the person or chattels of others which cannot be eliminated by the exercise of the utmost care and (b) is not a matter of common usage. See Dye v. Burdick, 262 Ark. 124, 553 S.W. 2d 833; North Little Rock Transportation Co. v. Finkbeiner, 243 Ark. 596, 420 S.W. 2d 874. We cannot say, as a matter of law, that the delivery of propane gas does not involve a risk of serious injury to persons or damage to property which cannot be eliminated by the exercise of ordinary care. The testimony of Burns not only fails to support this argument, it actually tends to support a contrary view. He said that the likelihood of injury is greatly reduced if the utmost care is used. This does not mean that the risk could be eliminated by the utmost care. See McLane v. Northwest Natural Gas Co., 255 Ore. 324, 467 P. 2d 635 (1970). In view of this testimony, the question as to factor (a) was for the jury.

Appellant also asks us to hold that delivery of propane gas is, as a matter of law, a matter of common usage, largely because propane gas is a substance in common usage. This argument overlooks the fact that the activity must be of common usage. A witness testified that delivery of propane gas is a routine procedure, but there is no evidence to indicate that the delivery of propane gas is a matter of common usage. If it is, then the existence of the Liquified Petroleum Gas Board created by Ark. Stat. Ann. § 53-701 et seq (Repl. 1971) might be subject to question from the standpoint of both utility and constitutionality. See Gray’s Butane Wholesale, Inc. v. Arkansas Liquefied Petroleum Gas Board, 250 Ark. 69, 463 S.W. 2d 639; Summers Appliance Co. v. George’s Gas Co., 244 Ark. 113, 424 S.W. 2d 171.

We do not agree with appellant that the standard of care for a case such as this was established as ordinary negligence by such cases as Arkansas Louisiana Gas Co. v. Stracener, 239 Ark. 1001, 395 S.W. 2d 745 and Dixie Furniture Co. v. Deason, 226 Ark. 742, 293 S.W. 2d 706. In Stracener and Deason the question of the standard of care was not really an issue. The statement from the opinion in Stracener on which appellant relies was made in holding that violation of a company regulation by its employee constituted a basis of liability. We held that the rule did not establish a standard of care and that there was no indication that the explosion involved would not have occurred if the employee had complied with the rule. In Deason, the issues involved questions of negligence and contributory negligence. The basic issue involved was a question whether a plaintiff gas company employee or a furniture company employee disconnected a stove from a butane gas pipe and left the pipe uncapped in the process. The issue of contributory negligence turned on the determination of the question whether the injured parties were negligent in failing to discover that the pipe was uncapped.There was also a question whether the failure to recap the pipe was the proximate cause of the injury.

We do not take other cases cited by appellants, such as Ozark Industries, Inc. v. Stubbs Transports, Inc., 351 F.S. 351 (W.D. Ark. 1972) and Skelly Oil Co. v. Holloway, 171 F. 2d 670 (8 Cir., 1948) to be applicable to this case. In the former, the question arose on a motion for summary judgment. The trial court there granted the summary judgment, holding that the transportation of gasoline in tank trucks from distributing centers on the highways to filling stations was a common everyday occurrence which did not, as a matter of law, constitute an ultrahazardous activity. The action was brought to recover damages allegedly caused by the overturning of a truck transporting gasoline and the resulting spilling of gasoline in the roadside ditch. The plaintiff had alleged that this gasoline then was carried by percolated waters into a spring used by the plaintiff for raising fish and that fish were killed as a result.

The Holloway case did involve propane gas. The negligence alleged was stated in specific acts, such as: failure of the employees of the supplier to properly inspect the distribution system in the dwelling house of the plaintiffs and to find and repair all leaks; the connection of plaintiff’s appliances to the gas distribution system and lighting a hot water heater while gas was escaping; informing plaintiffs that there were no leaks and use of the appliances and system was safe; and failure to warn the plaintiffs of escaping gas. A judgment in favor of the plaintiffs was affirmed. The only question was whether there was substantial evidence to support the finding of negligence on the part of the supplier. The court stated that there was no dispute about the law of the case, i.e., that one distributing gas to the public must, in view of the highly dangerous character of the gas and its tendency to escape, use a degree of care in the installation and maintenance of conduits and appliances under its control commensurate with the danger or risk which is its duty to avoid, but was not liable as an insurer. The evidence to support the finding of negligence was held to be substantial.

Common usage is defined as an activity customarily carried on by the great mass of mankind or by many people in the community. Restatement of the Law (2d), Torts § 520 (d), Comment i. In a case holding that the storage of gas is an abnormally dangerous activity, it was pointed out that distribution of gas in mains and pipes in streets and houses is a matter of common usage. J. McLane v. Northwest Natural Gas Co., supra. See also, Restatement of the Law (2d), Torts, § 520 (d), Comment i.

We conclude that there was no error in the submission of the case to the jury on the theory of absolute liability for miscarriage of an ultrahazardous activity and that the verdict is supported by substantial evidence.

On cross-appeal, appellee contends that we should reverse the judgment and render judgment for $48,346, the lowest estimated amount of her total damage as shown by the evidence in her behalf. But this evidence consisted almost entirely of opinion testimony, which was certainly not binding on the jury. Ark. Stat. Ann. § 27-1902 (Repl. 1962) permits, but does not require, that a new trial be granted where damages awarded do not equal the pecuniary injury.

In Bittle v. Smith, 254 Ark. 123, 491 S.W. 2d 815, we held that there was no abuse of discretion in the trial court’s denial of a motion for new trial on this ground, “since a pecuniary loss exceeding the amount of the verdict was not definitely established.” Opinion evidence does not definitely establish the amount of a pecuniary loss. Furthermore, here, as in Bittle, a substantial part of the evidence on damages was the testimony of the plaintiff June Stroud. As indicated in Bittle, her testimony cannot be taken as undisputed. We find no error in this respect.

The judgment is affirmed on appeal and cross-appeal.

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

Supplemental Opinion on Petition for Rehearing delivered October 9, 1978

John A. Fogleman, Justice.

On petition for rehearing, appellant asserts that we erred in holding that the evidence was sufficient to show that the delivery of propane gas is an ultrahazardous activity. We should clarify the opinion in that respect. Harry Burns, Director named by the Liquefied Petroleum Gas Board, testified that propane gas is an inherently dangerous, highly flammable product that requires skill in handling. He also testified that the likelihood of injury or damages is greatly reduced if the utmost care is used. We reiterate that this testimony tends to show that the risks of the activity in which appellant was engaged cannot be eliminated by the use of the utmost care. This was sufficient to present a jury question on this element of the definition of an ultrahazardous activity.

Appellant also asserts that the burden of proving that the delivery of propane gas is not a matter of common usage was not met by appellee. In the course of our opinion we remarked that there was no proof that it was a matter of common usage. We treated the matter as appellant argued it, however, and did not search the record for evidence on this point. Appellant argued that propane gas was a substance of common usage, so the second element of the definition of ultrahazardous activity has not been met. Appellant also argued that, “[s]ince the undisputed evidence in the record below establishes that delivery of propane and butane are matters of common occurrence, the same rationale would preclude submission of this case to the jury on the theory of absolute liability.” The thrust of appellant’s argument is covered by these two statements. The first contention was adequately treated in our original opinion. The second is based upon the testimony of Carlton Terry that he had been delivering gas for 16 years, making from 10 to 30 deliveries per day and that of Jerry Hatfield that he had seen the delivery of butane and propane gas many times. Both were employees of Butane Gas of Hope, a company engaged in the business of delivering propane gas to retail customers. The regular duty of both these employees was to deliver gas. This testimony on their part is not really substantial evidence that delivery of propane gas is a matter of common usage.

Burns testified that the personnel of a company licensed as a dealer in butane and propane gas are examined by the Liquefied Petroleum Gas Board. As a matter of fact, both Hatfield and Terry were licensed by the board to carry on the loading and unloading of these fuels. These licenses, or “certificates of competency,” are reviewed annually. See Ark. Stat. Ann. § 53-723 (A) (6) and (B) (Repl. 1971). There is a State Liquefied Petroleum Gas Code covering the storage and handling of liquefied petroleum gases. Ark. Stat. Ann. § 53-701 et seq. The requirements of the Liquefied Petroleum Gas Board Act have been taken to be directed primarily to public safety. Gray’s Butane Wholesale, Inc. v. Arkansas Liquefied Petroleum Gas Board, 250 Ark. 69, 463 S.W. 2d 639; Summers Appliance Co. v. George’s Gas Co., 244 Ark. 113, 424 S.W. 2d 171.

We did not mean to say that the burden of proving that the activity was one of common usage rested upon appellant. The burden of proof that it was not one of common usage was on appellee, in spite of the fact that this required her to make negative proof. Austin v. Dermott Canning Co., 182 Ark. 1128, 34 S.W. 2d 773. The “burden of evidence,” or of “going forward,” is more easily discharged when the proposition is a negative one than when it is a positive one, and the burden of evidence will shift when the evidence, even though circumstantial, renders probable the existence of the negative fact. Higgins v. Salewsky, 17 Wash. App. 207, 562 P. 2d 655 (1977); In re Sandusky’s Estate, 321 Ill. App. 1, 52 N.E. 2d 285 (1943); Schmisseur v. Beatrie, 147 Ill. 210, 35 N.E. 525 (1893); Vigus v. O’Bannon, 118 Ill. 334, 8 N.E. 778 (1886). The rule is succinctly stated at p. 338, 30 Am. Jur. 2d, Evidence, § 1163, viz:

* * * Full and conclusive proof is not required where a party has the burden of proving a negative, but it is necessary that the proof be at least sufficient to render the existence of the negative probable, or to create a fair and reasonable presumption of the negative until the contrary is shown.

We consider the evidence in this case, as to requirements for handling the gas, to be sufficient to have shifted to appellant the burden of producing evidence that the delivery of propane gas was a matter of common usage. As we have pointed out, there was no substantial evidence of this fact.

The petition for rehearing is denied.


author: John A. Fogleman, Justice.

text:
    Sheila A. HOLLEY (now WEST) v. Donald A. HOLLEY
    77-251
    568 S.W. 2d 487
    Opinion delivered July 17, 1978
    (In Banc)

      Gant & Gant, for appellant.

      Frank W. Booth, for appellee.
   John A. Fogleman, Justice.

This action was commenced on July 6, 1976, by appellant Sheila A. West (formerly Holley) in the Chancery Court of Sebastian County, Arkansas, by filing a petition for registration of a judgment, naming Donald A. Holley as respondent. It was a decree of divorce entered in the district court of Wyandotte County, Kansas on the 15th day of March 1968. By it, the marriage of appellant and appellee was dissolved and custody of two minor children, Todd Allen, born November 15, 1966, and Kristie Sue, born February 7, 1968, was awarded to appellant. Appellee was ordered to pay to appellant the sum of $40 per week as child support and alimony at the rate of $20 per month until the total sum of $550 in alimony had been paid. The proceeding was instituted under the Uniform Enforcement of Foreign Judgments Act [Ark. Stat. Ann. § 29-801, et seq. (Repl. 1962)]. A duly authenticated copy of the decree was attached and made an exhibit to the petition. In her verified petition, Mrs. West alleged that there had been no entries affecting this judgment subsequent to the date of its entry. The authenticating certificates were signed on June 8, 1976. Appellee filed a response in a pleading he denominated “demurrer, answer and counter-petition.” After a hearing, the chancery court entered a decree recognizing the decree of the Kansas court, except as modified by the decree. The trial court held appellee in contempt of court, rendered judgment for $6,240 in favor of appellant for child support arrearages, modified the Kansas decree to reduce the child support to $15 per child per week and ordered appellee to pay an additional $10 per week to be applied to the judgment for arrearages, established visitation rights for appellee and relieved him of the payment of current weekly child support during extended period of visitation by the children. Appellant prosecutes this appeal on three grounds. They are:

I
THE TRIAL COURT ERRED IN APPLYING A THREE YEAR LIMITATION TO THE CHILD SUPPORT ARREARAGES OR IN MODIFYING THE AMOUNT OF THE CHILD SUPPORT RETROACTIVELY.
II
THE TRIAL COURT ERRED IN REDUCING THE CHILD SUPPORT AS FIXED IN THE KANSAS DECREE.
Ill
THE TRIAL COURT ERRED IN FIXING AN UNREALISTICALLY LOW PAYMENT BY APPELLEE TO REDUCE ARREARAGES FOUND DUE.

By his responsive pleading, appellee demurred to the court’s jurisdiction of his person and of the subject matter; demurred generally, pleaded the statute of limitations, waiver, equitable estoppel and unclean hands; asserted payment of substantial amounts; alleged that he had suspended child support payments on advice of counsel, upon the ground that appellant had refused to allow the children to visit him; and alleged that appellant had endeavored to sever all relations between him and the children. He sought a change in the custody of the children or, in the alternative, substantial visitation rights.

We must first dispose of a contention by appellee on cross-appeal. He asserts that the trial court erred in assuming jurisdiction of this cause of action under § 29-801. He points out that § 29-803 sets forth the required contents of an application for the registration of a foreign judgment, among which are the authentication of entries of record relating to execution, payments, and the like. Since there was no authentication as to these items, and there was evidence at the hearing that certain items reduced to judgment in that decree (but for which judgment was not sought here), had been paid by appellee and that substantial child support payments had been made, appellee asserts that the basis of appellant’s petition was not sustained by the evidence. These facts would have been revealed, says appellee, had appellant complied with Ark. Stat. Ann. § 29-803. It is on this basis only that appellee attacks the jurisdiction of the court. He cites no authority to support that contention. Appellee raised the question of jurisdiction only by his demurrer to jurisdiction of the subject matter, which specified no grounds. Although the court’s decree recites a finding that the court had jurisdiction of the parties and the subject matter, we are not certain that this particular question was ever presented to the trial court on this basis. Assuming, however, that this question has been preserved, we find no merit in the argument.

The constitutionality of the proceeding under the Uniform Enforcement of Foreign Judgments Act, and its applicability to a judgment or decree awarding child support to be paid in regular periodic installments and the propriety of enforcement of that decree in the state where it is registered, has been recognized. Sullivan v. Sullivan, 168 Neb. 850, 97 N.W. 2d 348, 72 ALR 2d 1251 (1959); Light v. Light, 12 Ill. App. 2d 502, 147 N.E. 2d 34 (1957); Willhite v. Willhite, 546 P. 2d 612 (Okla., 1976). We agree with these holdings. The statute defines a foreign judgment as “any judgment, decree, or order of a court of the United States or any State or Territory which is entitled to full faith and credit in this state.” Ark. Stat. Ann. § 29-801. The court in which the judgment is registered then treats the judgment and enforces it exactly as it would a judgment rendered by it. Mangold v. Mangold, 294 S.W. 2d 368 (Mo. App., 1956); Ehrenzweig v. Ehrenzweig, 86 Misc. 2d 656, 383 N.Y.S. 2d 487 (1976).

A failure to strictly comply with the requirements of § 29-803 as to subsequent entries did not totally deprive the trial court of jurisdiction of the subject matter in this case where appellee was personally served and responded. No levy on the judgment was attempted under § 29-806 prior to the trial court’s decree. The Kansas court could not have retrospectively modified the child support payments. Ediger v. Ediger, 206 Kan. 447, 479 P. 2d 823 (1971); Grander v. Grander, 186 Kan. 766, 352 P. 2d 1067 (1960). Actually, in Kansas, a past due installment becomes a final judgment as of the due date, rather than a right to judgment, as in Arkansas. Ediger v. Ediger, supra. The judgment was, beyond doubt, entitled to full faith and credit in Arkansas. Loomis v. Loomis, 221 Ark. 743, 255 S.W. 2d 671.

The abstract of the record does not reveal whether the Clerk of the Circuit Court of Sebastian County requested information from the Clerk of the District Court of Wyandotte County, Kansas, as required by Ark. Stat. Ann. § 29-803. At any rate, appellee does not contend that this particular failure was jurisdictional. If the allegation of appellant’s petition with regard to subsequent entries was not correct, appellee could easily have invoked this action as a means of disclosing the truth of the matter, which he did not deny in his pleading.

Another reason for rejecting appellee’s argument as to jurisdiction is the fact that by his counter-petition, appellee sought affirmative relief, thereby waiving all objections to the court’s jurisdiction. This gave the trial court jurisdiction over the controversy between the parties and, when jurisdiction is acquired for any purpose, the trial court may settle the rights of the parties, since the jurisdiction of the subject matter was not wholly beyond the power of the court. Du Fresne v. Paul, 144 Ark. 87, 221 S.W. 485. Christmas v. Raley, 260 Ark. 150, 539 S.W. 2d 405. See also Jamison v. Henderson, 189 Ark. 204, 71 S.W. 2d 696. It should be pointed out that the jurisdictional question here does not go to the power of the court to act in the premises. The court would have had jurisdiction and power to act in an action on a foreign judgment even in the absence of the uniform act. See, Baldwin v. Cross, 5 Ark. 510; Brian v. Tims, 10 Ark. 597; Hallum v. Dickinson, 54 Ark. 311, 15 S.W. 775; Motsinger v. Walker, 205 Ark. 236, 168 S.W. 2d 385; Berger v. Berger, 222 Ark. 463, 261 S.W. 2d 259.

I

The judgment rendered by the trial court recited that.it represented arrearages in child support payments determined “by a finding of $2,080 per year for a period of three years, which is the period the Court elects and chooses to go back through.” The chancellor stated, in making her findings: “The Court is going to grant a judgment for three years instead of the allowed five.” It is clear from this statement, as well as from an earlier admonition by the chancellor to the attorneys in the case, that she was well aware of the applicability of the five year statute of limitations, so we are unable to say that the judgment was based upon the erroneous application of a three year statute of limitations. Withholding judgment for the additional two years must be justified on some other basis.

The five year statute of limitations would have permitted judgment for arrearages after July 6, 1971. The last payment ($60) was made by appellee on October 20, 1971. A total of $260 was paid by him in that year. Even if all this sum was paid within the five year period preceding the filing of appellant’s petition, the judgment should have been much more than that entered and the chancellor did not indicate how she arrived at a three year period and we can find no basis for it. Ordinarily, the chancery court has no power to remit accumulated court-ordered support payments. Kirkland v. Wright, 247 Ark. 794, 448 S.W. 2d 19. In this state, entitlement to payment vests in the person entitled to it as the payments accrue as the equivalent of a debt due and, subject to any disallowance for periods of time when the conduct of the custodial parent entitled to payment has defeated the rights of the other parent or otherwise justified disallowance, judgments should be rendered for the full amount of the arrearages, limited only by the five year statute of limitations. Riegler v. Reigler, 246 Ark. 434, 438 S.W. 2d 468; Johnson v. Arledge, 258 Ark. 608, 527 S.W. 2d 917; Kirkland v. Wright, supra; Brun v. Rembert, 227 Ark. 241, 297 S.W. 2d 940. There is at least doubt about the power of the Arkansas court to reduce this foreign judgment under any circumstances, in view of Kansas law on the subject. Loomis v. Loomis, supra. But we treat this question as if it had arisen in connection with an Arkansas decree, because no one invoked the Kansas law as required by Ark. Stat. Ann. § 27-2504 (Supp. 1977).

There are circumstances in which the court is justified in withholding judgment for unpaid child support installments, such as when the mother having custody deprives the father of temporary custody or visitation rights by failing to comply with the terms of a valid decree governing those rights. Massey v. James, 251 Ark. 217, 471 S.W. 2d 770; Pence v. Pence, 223 Ark. 782, 268 S.W. 2d 609. In such cases, the chancery court is not required to give judgment for arrearages accruing during the time the mother’s actions have defeated the father’s visitation rights.

Under the decree, Holley was only granted specific visitation rights as to the son. That was limited to one weekend per month and two weeks during summer vacation. He was enjoined from taking either child at any time for a period longer than that specified in the decree. Nothing else was said about visitation. It cannot be said that appellant has violated any of the terms of this decree with respect to visitation with the daughter.

There is no evidence that appellant removed the children so far from their father that he could not visit the children without great expense as was the case in Antonacci v. Antonacci, 222 Ark. 881, 263 S.W. 2d 484. There was no indication that the whereabouts of the children were concealed from him as was the case in Pence v. Pence, 223 Ark. 782, 268 S.W. 2d 609, where the court was fragmented on the question. As a matter of fact, appellee testified that he had gone to Buckner, Missouri, where Mrs. West had lived for nearly nine years at the time of the hearing, and where she had obtained employment, and had taken both children for a visit to his parents from grandparents in Pittsburg, Kansas. Appellee’s mother admitted that appellant had brought the children to her house around Thanksgiving in 1975 and that she had taken them next door, where appellee’s grandparents lived, on other occasions. Obviously, he knew where the children were at all times. In these respects, this case is more nearly like Carnahan v. Carnahan, 232 Ark. 201, 335 S.W. 2d 295, where we reversed the chancery court’s denial of judgment for arrearages in child support payments. See also, Nicholas v. Nicholas, 234 Ark. 254, 351 S.W. 2d 445.

Appellee testified that he had instituted a proceeding in connection with the matter in Jackson County, Missouri. Like the father in Kirkland v. Wright, supra, where we held that good cause to deny judgment for delinquent child support payments had not been shown, appellee did not pursue the matter. He did not even know whether process was ever served on appellant. He said that there was a meeting between her attorney and his attorney and that he had instructed his attorney to resolve the differences out of court.

The evidence consisted largely of the testimony of the parties and is in considerable conflict on matters other than those recited above. As pointed out, appellee pleaded waiver, equitable estoppel and unclean hands, among other defenses. Yet it is clear that appellee had wilfully disobeyed the orders for payment of child support because the chancellor held that appellee was in contempt of court because of his failure to meet his obligations. We are totally unable to ascertain the basis for the trial court’s withholding judgment for the full five year period prior to the commencement of this proceeding. In this respect, this case is unlike Sharum v. Dodson, 264 Ark. 57, 568 S.W. 2d 503, where the basis for denial of judgment for the full amount could only have been attributable to the actions of the mother.

II

As we have pointed out, the trial court found appellee in contempt of court for failure to meet his obligations under the Kansas decree and ordered him incarcerated for 30 days, but made provisions for him to exonerate himself by paying $1,000 on the judgment for arrearages and $150 as attorney’s fees. The court also modified the Kansas decree by reducing the child support from $40 per week to $15 per week, in spite of the fact that appellee had not asked this sort of relief. A change in circumstances is a necessary prerequisite to a reduction of child support payments. Sindle v. Sindle, 229 Ark. 209, 315 S.W. 2d 893. The burden of showing such a change was on appellee. Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468. Both parties have remarried. We have no indication of the income of appellant’s present husband, who is an equipment operator. Appellant is employed by her uncle, as she has been since a short time after the divorce. She earns $83 per week. It seems obvious that the needs of the children are greater now than they were when the decree was entered. Appellee is now earning $425 per week in his employment by a television station and a radio station in Ft. Smith. His present wife has a son and daughter by a previous marriage. Her son lives with his father. She receives child support for the daughter who lives with her. Since there is no real basis for comparison, we have no means of ascertaining the trial court’s basis for modification of the Kansas decree.

III

We do not understand the basis for the trial court’s requiring appellant to pay only $10 per week on the judgment for arrearages. This is less than interest on the balance of the judgment, after appellee purges himself of contempt. The judgment would never be satisfied. Although the court cannot withhold execution or garnishment on the judgment, it is proper for the court to make provision for payment of arrearages in such amounts as the circumstances warrant in order to allow the judgment debtor to avoid punishment for contempt of court.

The decree granting judgment for $6,240 and holding appellee in contempt of court is affirmed. Since there is reversible error on the withholding of execution in this case and we are unable to fix the rights of the parties on other matters on trial de novo, we deem it best for the case to be remanded to the trial court for reconsideration of the question whether appellant is entitled to judgment for an additional amount on account of arrearages and of the question of modification of the Kansas decree and of the amount of monthly payments to be made by appellee to avoid being in contempt of court.

Harris, C.J., and Byrd, J., dissent.

Hickman, J., concurs.


text:
    George RUSSELL v. Susie PRYOR, Bill PRYOR, David PRYOR, Elinor OZMENT, and Cornelia LINDSEY
    77-282
    568 S.W. 2d 918
    Opinion delivered July 17, 1978
    (Division II)

      Anderson & Crumpler, for appellant.

      Julian D. Streett, for appellees.
   John A. Fogleman, Justice.

Appellant Russell was the owner of lands lying to the west and to the south of property owned by appellees. Thus, there were two common boundary lines. In 1971 and 1972, appellant engaged James Magsby, Morris Thompson and Tiny Ford to cut timber on his land. Appellees filed this action against appellant, International Paper Company, Southern Pulpwood Company, Arkansas Pulpwood Company, Morris Thompson and James Magsby in July, 1974. They alleged that Thompson, as employee and agent of Southern Pulpwood Company and International Paper Company and Magsby, as employee and agent of Arkansas Pulpwood Company and International Paper Company, had unlawfully cut and removed timber from the lands of appellees (hereafter called the Pryor land) at the direction and request of appellant Russell. It was alleged that the defendants wilfully trespassed and cut and removed the timber in violation of Ark. Stat. Ann. § 50-105 (Repl. 1971), and that appellees were entitled to treble the value of the timber cut. Appellees also alleged that they were entitled to double the amount of the timber cut and that the Pryor land had been permanently damaged to the extent of $50 per acre on 46 acres from which the timber was cut. The prayer sought recovery of treble damages under Ark. Stat. Ann. § 50-105 or, alternatively, double the value of the timber cut, or in the alternative, for the value of the timber cut as damages for its conversion and $2,300 for permanent damage to the land. Tiny Ford was added as a party defendant in June, 1975. Trial was had on February 5, 1976.

After the evidence had been presented and the jury had been instructed, the jury returned its verdict by answering interrogatories submitted to it. Its answers, so far as they are material, follow:

INTERROGATORY NO. 1
“Do you find, from a preponderance of the evidence, that Morris Thompson cut and removed from the Pryor land without the approval or knowledge of the Pryors?
Answer “Yes” or “No” Tes
INTERROGATORY NO. 2
If your answer to Interrogatory No. 1 is “Yes” then answer this question:
Do you find, from a preponderance of the evidence, that the cutting and removal of the Pryor timber by Morris Thompson was done at the direction and advice of George Russell?
Answer “Yes” or “No” Tes
INTERROGATORY NO. 3
If your answer to Interrogatory No. 2 is “Yes” then answer this question:
Do you find, from a preponderance of the evidence, that George Russell acted with the intention of depriving the Pryors of the value of the timber cut and removed from their land?
Answer “Yes” or “No” Tes
INTERROGATORY NO. 4
Do you find, from a preponderance of the evidence, that Tiny Ford cut and removed timber from the Pryor land without the approval or knowledge of the Pryors?
Answer “Yes” or “No” Tes
INTERROGATORY NO. 5
If your answer to Interrogatory No. 4 is “Yes” then answer this question:
Do you find, from a preponderance of the evidence, that the cutting and removal of the Pryor timber by Tiny Ford was done at the direction and advice of George Russell?
Answer “Yes” or “No” No

(Interrogatory No. 6 was to be answered only if No. 5 was answered “Yes.”)

INTERROGATORY NO. 7
If you have answered either Interrogatory No. 1 or Interrogatory No. 4 “Yes” then answer this question:
What do you find, from a preponderance of the evidence, to be the value of the timber as saw logs at the time it was cut and removed from the Pryor land?
$4,400.00

In spite of the jury verdict, the trial court entered judgment for $4,400 against George Russell, Morris Thompson and Tiny Ford, jointly and severally, and entered judgment against Russell in the additional sum of $8,800.

Russell filed a motion for new trial on the ground that the answers to the interrogatories submitted to the jury were inconsistent. The trial judge refused to grant a new trial, but entered its judgment in spite of the jury verdict for the reasons set out in its judgment, i.e.,:

“After the jury was discharged, the Defendant, George Russell, moved for an order granting a new trial on the grounds that the answers to interrogatories are inconsistent with each other. Said Motion for a New Trial is hereby overruled because the Court finds that Interrogatories No. 5 and 6 should not have been submitted to the jury since the evidence was without dispute that Morris Thompson showed Tiny Ford where to cut and that as a matter of law, the jury’s answers to Interrogatories No. 5 and 6 would have to be the same as the answers to Interrogatories No. 2 and 3 and they are by the Court held to be the same.”

Appellant admits that the court may have been correct in stating that Morris Thompson showed Tiny Ford where to cut, but says that the jury could and did find that the Pryor timber cut by Ford was not done at the direction or advice of appellant Russell. He refers to his own testimony in which he had stated that he had shown his property lines to Morris Thompson, James Thompson and Tiny Ford. He had testified that he showed them all the boundary lines between him and the Pryors “not just once” but several times. He said that he never took them across the Pryor land and claimed it as his land, that he did not tell them to cut across the Pryor land over to Norwood’s west line (which was the Pryor east line), and that he had showed them his line and told them to stop there. James Magsby, a man employed by appellant to cut timber at approximately the same time as Thompson and Ford, testified that appellant had shown him the true boundaries and told him not to cut across that line.

Appellant says that this testimony was clearly a sufficient basis for the jury’s finding that Ford did not cut timber from the Pryor land at his direction and advice. Appellant claims that, in effect, the court’s action amounted to a judgment notwithstanding the verdict and points out that when such a judgment is rendered, the testimony must be undisputed so that the court might declare as a matter of law, that the party in whose favor the judgment was entered was entitled to it, citing Satterfield v. Rebsamen Ford, Inc., 253 Ark. 181, 485 S.W. 2d 192, in which Scharff Distilling Co. v. Dennis, 113 Ark. 221, 168 S.W. 141 was quoted. Appellant also refers us to Williams v. Curtis, 256 Ark. 237, 506 S.W. 2d 563, in which we said that the governing rule on judgments n.o.v. and directed verdicts was the same. It was there pointed out that, in testing whether there is substantial evidence, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom a verdict would be directed and if there is any conflict in the evidence or, where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.

It does seem that there was evidence from which the jury could find that Ford did not cut the timber on the Pryor land on the advice or direction of Russell if Russell showed Thompson and Ford the true lines, or if he showed Thompson the true lines and Thompson showed Ford the wrong boundary. Appellees say that it is clear from the evidence that a jury question was presented as to whether appellant instructed either Thompson or Ford to cut on the property owned by the Pryors and that the jury could easily have found that both Thompson and Ford cut timber from the Pryor property but that only Thompson did so at the direction and advice of George Russell. It also appears certain, as appellees say, that it is clear that the jury found that Russell had shown Thompson incorrect lines which included the Pryor land from which he and Ford had cut timber. Ford testified that Russell told him that he had shown thé location of the lines to Morris Thompson and his brother.

Appellees argue that the fact that the jury found that Thompson acted at the direction and advice of Russell, and that Ford did not, is really of no consequence because the jury found both Thompson and Ford cut and removed timber from the Pryor land without the approval or knowledge of the Pryors and that Russell acted with the intention of depriving the Pryors of the value of the timber cut and removed from their land. It is appellees’ theory that these findings, along with the finding that Thompson acted on Russell’s advice made all three joint tortfeasors and as such, jointly and severally liable to the Pryors, because they acted concurrently, even though some of them may have acted independently. For this reason, appellees say that it is immaterial that the court ruled that Interrogatories 5 and 6 should not have been submitted because the answers to the interrogatories are not inconsistent with a determination that Thompson, Ford and Russell were joint tortfeasors and, therefore, Russell would be liable for the acts of both Thompson and Ford upon the finding that either was acting at the direction and advice of Russell. Appellant, in turn, concedes that appellant could be held jointly and severally liable with Thompson and Ford for actual damages, but not punitive damages.

This is not a situation where the trial court amended a verdict incorrectly expressed under a mistake of law, in order to conform it to the manifest intention of the jury, such as we had in Traylor v. Huntsman, 253 Ark. 704, 488 S.W. 2d 30 and in Trailmobile, Inc. v. Robinson, 227 Ark. 915, 302 S.W. 2d 786. On the face of the verdict, the answers to the interrogatories appear to be inconsistent in view of appellant’s testimony. This would not be a matter of concern if the verdicts had been rendered in two cases consolidated for trial. See Rudolph v. Mundy, 226 Ark. 95, 288 S.W. 2d 602; Brown v. Parker, 217 Ark. 700, 233 S.W. 2d 64; Green v. West Memphis Lumber Co., 192 Ark. 1177, 91 S.W. 2d 261. That is not the case here. The answers as to Thompson on the one hand and Ford on the other can hardly be reconciled without surmise or conjecture. Conflicting findings destroy one another and leave no findings on the issue. Whaley v. Angelina Casualty Co., 423 S.W. 2d 448 (Tex. Civ. App., 1967).

We cannot agree that the verdict should have been permitted to stand on the basis that the answers are not inconsistent, when all the testimony of each witness is reviewed. In doing this, we also consider that the witnesses were all parties, whose testimony is not to be taken as uncontradicted. Raiborn v. Raiborn, 254 Ark. 711, 495 S.W. 2d 858; Woodward v. Blythe, 246 Ark. 791, 439 S.W. 2d 919. Morris Thompson first testified that Ford was present when he talked to George Russell, but then said that he did not know definitely that he was there, and stated that he was not, when Russell showed him a corner. Ford testified that he started cutting when Thompson did. He said that Russell never showed him any lines but told him that he had shown the lines to the Thompson brothers. He testified that he cut where Morris Thompson and his brother told him to. He didn’t know whether Russell ever told him where to cut, but he was present when Russell was showing Thompson where to cut some trees down, when they were coming in from Fook’s farm, which lies west of the Pryor land and north of the Russell land. Most of the time Thompson and Ford were cutting “alongside each other.” We do not see how the jury could have consistently found that Thompson cut the timber at the direction and advice of Russell and that Ford did not, when the entire testimony of Russell, Thompson and Ford is considered together in the light most favorable to the jury verdict. The trial judge obviously did not think so, because, in rendering judgment, he stated that the answer to Interrogatories No. 5 and No. 6 would have to be the same as that to Interrogatories No. 2 and No. 3. They were, by the court, held to be the same. Appellees have not pointed out the testimony supporting their contention in this regard.

This issue then turns upon the question whether the inconsistent answers affected the result. The trial judge did not think so, but we disagree, although we feel that it is the duty of the trial judge to harmonize apparent inconsistencies in arriving at a judgment, if possible to do so. See Woodruff v. Webb, 32 Ark. 612. But the jury’s intention must be capable of ascertainment with certainty. Traylor v. Huntsman, supra. The ultimate test here is whether the conflict is such that one answer would require a verdict for the plaintiff and the other a verdict for the defendant. Missouri Pacific Railroad Co. v. Tide LPG., Inc., 462 S.W. 2d 106 (Tex. Civ. App., 1970); Turner v. Victoria County Electric Cooperative Co., 428 S.W. 2d 484 (Tex. Civ. App., 1968). In assessing the verdict and the evidentiary basis for it, we must remember that the answers to these interrogatories determined the question of the award of punitive or exemplary damages against appellant: From one answer, punitive damages were clearly justified. From the other they were not. It is not a sufficient answer to say that the interrogatory to Ford should not have been submitted, because Russell testified that he showed the lines to the Thompsons and Ford, but Ford said that he did not and Thompson was not sure about the matter.

The real question here is whether, in spite of the answer given to Interrogatory No. 5, the judgment entered was proper. West v. Matteson-Southwest Co., 369 S.W. 2d 496 (Tex. Civ. App., 1963). Appellees say that it was, because the defendants were joint tortfeasors. They are correct in their assertion that parties need not act in concert to be liable as joint tortfeasors. Applegate v. Riggall, 229 Ark. 773, 318 S.W. 2d 596. Sustaining appellees’ position might be easier if the question of punitive damages was not involved. In their complaint, appellees sought recovery of punitive damages against all the defendants. Even though punitive damages were awarded against appellant only, they were a multiple of the actual damages. Consequently, appellant was held liable for double the amount of the total value of the timber cut by both Thompson and Ford. The value of the timber cut by Ford and that cut by Thompson were not separately determined. If Ford did not act at the direction or on the advice of Russell, then Russell would not be liable for multiple damages. Thus Lewis v. Mays, 208 Ark. 382, 186 S.W. 2d 178 does not control except insofar as Thompson’s activities are concerned. In that case, the employer who engaged a timber cutter was held liable for the acts of the timber cutter who cut timber from the land of a neighbor, without regard to the status of the cutter as an employee or independent contractor, since liability for the trespass was based on the action of the timber cutter, “by the advice or direction” of the employer. The holding in Hinton v. Bryant, 236 Ark. 577, 367 S.W. 2d 442 is to the same effect. These cases would, of course, govern if the jury had found that Ford acted upon the advice or direction of Russell. If Ford did not act upon the advice or direction of Russell, Russell would not be liable for the punitive damages, assuming that Russell did, as he said, show Ford the true lines or if Ford acted upon the statements of Thompson after Russell had shown Thompson the true lines. The assessment of treble damages against appellant should not rest upon such a fragile foundation as the verdict in this case.

Since the jury verdict cannot be reconciled and since the verdict as to damages is not divisible, the trial court erred in denying the motion for new trial.

Appellant also contends that the court erred in refusing to submit interrogatories and an instruction requested by appellant. We cannot agree that the trial court erred in refusing the interrogatories or the instruction requested by appellant. The interrogatories and instruction would have left the question whether double damages or treble damages were to be recovered from Russell, if the jury held against appellant on the question of liability, without any guidelines whatever. It seems to be the position of appellant that the matter lies simply in the untrammeled discretion of the jury. We do not agree with this position. The distinction is a tenuous one, is rather difficult to describe, and is productive of insuperable confusion.

It is true, as pointed out in Stair v. Jones, 223 Ark. 882, 269 S.W. 2d 297, that there are three separate measures of damage available to one who seeks to recover for timber taken from his land by a trespasser. They are: treble damages under Ark. Stat. Ann. § 50-105 (Repl. 1971); double damages under Ark. Stat. Ann. § 54-203 (Repl. 1971); and the common law rule of simple damages.

The trial court awarded treble damages against Russell, on the basis that Thompson (and Ford by reliance on Thompson) acted on the advice and direction of Russell and that Russell acted with the intention of depriving the Pryors of the value of the timber cut and removed from their land in answer to Interrogatories No. 2 and No. 3. The interrogatory submitted by the court was appropriate to Ark. Stat. Ann. § 54-203 which is based upon, and a part of, statutes pertaining to larceny of trees, timber, etc., i.e., §§ 41-4211 — 41-4225 (Repl. 1964). McLouth v. General Telephone Co.of the Southwest, 164 F.S. 496 (W.D. Ark. 1958). Proof of a violation of § 41-4221 of which § 54-203 is a part is sufficient if it shows that the trespasser entered upon the land without lawful authority and wilfully and knowingly cut down standing or growing trees. Smith v. State, 127 Ark. 218, 191 S.W. 913. Ark. Stat. Ann. §41-4222 prohibits the removal of such trees or logs, timber, etc., with intent to convert the same to the trespasser’s own use. Thus, an affirmative answer to the question whether Russell intended to deprive the owner of his property seems appropriate to this statute. Sec. 54-203 has been held to be applicable where the trespasser had no probable cause to believe that the land on which he committed the trespass was his own. Rosengrant v. Matthews, 55 Ark. 440, 18 S.W. 541. We have also held that scienter is essential to the application of the statute. Parker v. Fenter, 216 Ark. 398, 225 S.W. 2d 940. The award of treble damages should be confined to cases characterized by wantonness, wilfulness or evil design. Upton v. Wimbrow, 148 Ark. 408, 230 S.W. 277. It has also been held that the treble damage statute applies where the trespasser cuts timber from the lands of another, knowing that he had no authority, and acting knowingly and unlawfully. Fogel v. Butter, 96 Ark. 87, 131 S.W. 211.

But, according to one of our decisions interpreting § 50-101 in the light of previous decisions, we held that treble damages may only be invoked where one cuts timber with the intention of depriving the true owner of the value thereof. Callaway v. Perdue, 238 Ark. 652, 385 S.W. 2d 4, 13 ALR 3d 1300. There we pointed out that our previous decisions had established the necessity that the trespasser hold an evil intent or act in bad faith before being liable for punitive damages, even though the words of the statute do not so indicate. Thus, the interrogatory submitted left the trial judge with an untrammeled discretion in the matter.

Perhaps the best solution to the problem, when interrogatories are to be used, is to phrase the inquiry in the specific language of the two statutes as interpreted by this court separately and to instruct the jury to answer only that interrogatory which seems to them to be most applicable to the evidence.

We should mention one other matter in connection with this case. When the case was submitted, we found an apparent non-fiagrant violation of Rule 9. We noted that a motion for new trial was not abstracted and that thejudgment itself was not abstracted. Since the record has been reabstracted, it is clear that the deficiency was not flagrant. It is now obvious that the motion for new trial was oral and the making of the motion and the grounds alleged were stated in thejudgment and that the pertinent part of thejudgment was quoted verbatim in appellant’s original brief. This information was included in the quoted portion of thejudgment. The assertions in appellant’s original brief relating to the motion for new trial and the court’s judgment were conceded by appellees in their brief, without any question whatever. Thus, the situation was unlike that in Manes v. M.O.V.E. Inc., 261 Ark. 793, 552 S.W. 2d 211, where the detailed findings of fact or findings of mixed law or fact were necessary to an understanding of the questions presented to this court, but were not mentioned in the abstract or brief. It is more like the situation in Goodloe v. Goodloe, 253 Ark. 550, 487 S.W. 2d 593, where it developed that the abstract was sufficient to determine the question. This seemed to us to be quite possible when we permitted reabstracting by an unpublished per curiam order entered April 3, 1978, saying that we did not consider such a deficiency to be so flagrant that it would justify affirmance and that an unreasonable or unjust delay would not result by allowing 30 days for revision and supplementation of appellant’s abstract and reprinting of his brief, all at the attorney’s expense.

The judgment is reversed and the cause remanded for a new trial.

We agree.

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

      These sections have now been repealed. Act 928 of 1975, § 3.


text:
    Darcie SHARUM (Dodson) v. Jimmy DODSON
    78-42
    568 S.W. 2d 503
    Opinion delivered July 17, 1978
    (In Banc)

      Stephen M. Sharum, for appellant.
    No brief for appellee.
   John A. Fogleman, Justice.

Appellant, mother of two minor children, was awarded custody of the children when the parties were divorced on September 14, 1965. In the decree of divorce, appellee was ordered to pay $20 a week in child support. On September 7, 1977, appellant filed a motion for citation for contempt for failure to pay support and for modification of the custody decree. She sought judgment for arrearages of $11,180 for the period of October 11, 1966 to August 11, 1977. She also asked that the weekly amount of child support not be reduced even though she did request the son’s custody be changed to his father. Appellee filed an answer generally denying the allegations and affirmatively pleading that he should not be held responsible for the arrearage accumulated during that period since appellant had not provided reasonable visitation as provided in the original decree and had removed the children from the jurisdiction of the court without notification to either him or the court. At the hearing on October 18, 1977, the court found appellant in contempt for failure to allow the children to visit with their father. The court found appellee in contempt for failure to pay child support for the past ten years. The chancellor awarded judgment to appellant of $3,096 for three years arrearage and back support. It was further ordered that the support and arrearage was to be paid at a rate of $5 a month and that execution was to be held in abeyance unless appellee failed to make prompt payments each month. The custody of the son was changed to his father and the weekly support payments were reduced to $10.

Appellant contends that the chancery court abused its discretion in finding that appellee had failed to support the children for 10 years, but only awarded $3,096 as arrearages for three years; that the court erred in limiting the arrearage to three years when the applicable statute of limitations, if it had been affirmatively raised, was five years; that the court abused its discretion by holding in abeyance execution on the judgment; and that the court abused its discretion by allowing the payment of thejudgment for the arrearages at a rate of $5 a month. We find merit in two of the points and reverse.

Appellant is right in her contention that the chancery court erred in ordering that execution on the judgment be held in abeyance so long as appellee pays $5 per month on thejudgment for arrearages. Entitlement to payment of child support installments vested in appellant as they accrued, and she was entitled to judgment as a matter of right, when they were not paid, except during such periods of time when she rendered appellee’s visitation rights nugatory. Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468; Brun v. Rembert, 227 Ark. 241, 297 S.W. 2d 940; Johnson v. Arledge, 258 Ark. 608, 527 S.W. 2d 917; Kirkland v. Wright, 247 Ark. 794, 448 S.W. 2d 19. A judgment for past due payments is like any other judgment, whether at law or in equity.

An execution may issue on any final judgment of any court of record for a liquidated sum of money. Ark. Stat. Ann. § 30-101 (Repl. 1962). The court rendering thejudgment has no power, in the absence of a stay or supersedeas pending appeal, to withhold execution beyond the ten day period fixed by Ark. Stat. Ann. § 30-102 (Repl. 1962). Taylor, State Bank Commissioner v. O’Kane, 185 Ark. 782, 49 S.W. 2d 400; International Shoe Co. v. Waggoner, Judge, 188 Ark. 59, 64 S.W. 2d 82. The reason for the rule is aptly stated in Taylor thus:

*** But by still another section, 6299, a judgment of the Supreme, chancery, or circuit courts of this state, or the District Court of the United States in this state, becomes a lien on real estate owned by the defendant in the county where rendered from the date of thejudgment. If the court could stay or postpone execution, as, for example, in this case, the judgment debtor could make away with all chattels owned by him and any real estate outside the county, free from the judgment lien, because no execution could be issued and come to the officer’s hands until the period of the stay had elapsed. Courts have not been given such power. One of their functions is to aid in the collection of just debts by orderly process of law, and not to delay same.

Ark. Stat. Ann. §§ 30-101 and 30-102 (Repl. 1962) are part of the Civil Code, the provisions of which are applicable to circuit and chancery courts alike. Ark. Stat. Ann. §§ 27-102, - 103, -104, -106, -109, -204 (Repl. 1962). Thomas v. Dean, 245 Ark. 446, 432 S.W. 2d 771; Coleman v. Coleman, 257 Ark. 404, 520 S.W. 2d 239.

Garnishment after judgment, rather than before judgment is, in effect, a form of execution. Probst v. Scott, 31 Ark. 652. See also, Teague v. Fairchild, 15 S.W. 2d 585 (Tex. Com. App., 1929); First National Bank in Bronte v. Little, 6 S.W. 2d 819 (Tex. Civ. App., 1928). For this reason it behooves us to consider that process also, even though it was not specifically mentioned in the court’s decree.

The provisions of the garnishment statutes also apply to actions and judgments in any court of record. Ark. Stat. Ann. § 31-501 et seq (Repl. 1962). Garnishment has been defined as a proceeding whereby a plaintiff seeks to subject to his claim property of the defendant in the hands of a third person or money owed by such person to the defendant, and it may be issued at whatever stage of a proceeding the statutes may authorize. First National Bank of Huttig v. Rhode Island Ins. Co., 184 Ark. 812, 43 S.W. 2d 535. A chancery court, however, may only hold a parent required by decree to make support payment in contempt of court for wilful disobedience of the court’s order and not because of his financial inability to make payment. Hervey v. Hervey, 186 Ark. 179, 52 S.W. 2d 963. While restricting the ability of the parent to collect a judgment to installments amounts, in effect, to a retroactive modification of the decree making the allowance, it is proper for a chancery court to make such provision for payments of arrearages in installments as the circumstances warrant in order to allow the judgment debtor to avoid punishment for contempt. Jarvis v. Jarvis, 27 Ariz. App. 266, 553 P. 2d 1251 (1970). Accord, Backus v. Backus, 216 Ark. 802, 227 S.W. 2d 439; Armstrong v. Armstrong, 248 Ark. 835, 454 S.W. 2d 660, 61 ALR 3d 511.

A court may not restrict the right of one parent to collect a judgment against the other for arrearages in child support payments by legal process; it may, however, if changed circumstances have rendered the payments inequitable, in its discretion, decline to enforce, by contempt proceedings, the payment of a greater sum than the circumstances warrant. Bachus v. Bachus, supra. See also, Griffith v. Griffith, 225 Ark. 487, 283 S.W. 2d 340. It was error for the trial court to order execution to be held in abeyance.

We do not understand the basis for the trial court’s requiring appellant to pay only $5 per month on the judgment for arrearages. There is no question about appellant’s entitlement to interest at the rate of 10% per annum. Ark. Stat. Ann. § 29-124 (Supp. 1977). All judgments bear interest under this statute, unless they are expressly excluded by the language of the statute itself. Shofner v. Jones, 201 Ark. 540, 145 S.W. 2d 350. See also, Taylor v. Corning Bank & Trust Co., 185 Ark. 691, 48 S.W. 2d 1102. At the rate of $5 per month, it would be a question of how many generations, rather than how many years, would pass before the judgment was paid, even if interest did not accrue. With payments amounting to less than one-fifth of the interest, the amount of the judgment will substantially increase rather than decline. There is nothing in the record before us to justify such small payments by one who has already been found in contempt of court for failure to make payments. This necessarily means that at some point appellee had the financial ability to pay but wilfully failed to do so. Requiring the payment of only $5 per month by appellee in order to avoid punishment for contempt appears to have been an abuse of discretion on the record before us. We are unable to determine what amount he should pay in order to justify withholding contempt procedures, so the trial court will have to reconsider this matter on remand.

Appellant argues that it was an abuse of discretion for judgment to be entered for only three years of arrearages when the proof showed that appellee had not paid support in the last ten years. This case was submitted to us on an abbreviated record. It consisted of the pleadings, the order, and that part of the testimony by both parties that appellee had not supported the children from October 11, 1966 to June 26, 1977. Appellee did not designate any additional parts of the record or favor us with a brief. Although we cannot presume that any portions of the record not designated support the trial court’s action, we also cannot reverse the lower court unless the record demonstrates apparent error. Holt v. Holt, 253 Ark. 456, 486 S.W. 2d 688; Kimery v. Shockley, 226 Ark. 437, 290 S.W. 2d 442. Accordingly, we decide the question on the designated record before us.

As has been stated above, a mother is not entitled to judgment for arrearages during the period when she has defeated the father’s visitation rights. Kirkland v. Wright, 247 Ark. 794, 448 S.W. 2d 19. The abstracted testimony of appellee shows that he stopped making payments when appellant moved to Ft. Smith and changed her name. He said that he thought she had left the state and he had not known where the children were. His testimony was not contradicted. The chancellor specifically found that appellant had been in contempt of court for defeating the visitation rights of appellee. See Massey v. James, 251 Ark. 217, 471 S.W. 2d 770. Since appellant had no right to support payments accumulated during that period, she is in no position to complain that she was only allowed three years of payments. It was not an abuse of discretion for the chancellor to give judgment for $3,096.

A related argument is that the wrong statute of limitations was applied and that it was not affirmatively raised by appellee. While it is true that the correct statute of limitations in actions for accumulated arrearages is five years, there is no indication that the statute was the basis for the number of years awarded. Appellant was not entitled to support during the period when she was in contempt so that the chancellor had the option of awarding any amount that was justified by the evidence. There is no evidence in the record that reflects that the chancellor was basing her award on any, much less an erroneous, statute of limitations.

The decree is affirmed as to the judgment for arrearages, but reversed as to the withholding of execution. The cause is remanded to the chancery court for further proceedings consistent with this opinion.