author: George Rose Smith, Justice.

text:
    Austin L. BOYETTE v. STATE of Arkansas
    5585
    465 S. W. 2d 901
    Opinion delivered April 26, 1971

      Lester E. Dole, for appellant.

      Ray Thornton, Attorney General; Milton R. Lueken, Asst. Atty Gen., for appellee.
   George Rose Smith, Justice.

Shortly after noon on June 24, 1970, Ella Lewis, an 80-year-old resident of Hampton, was brutally attacked by an assailant who used some sort of blunt instrument to inflict two heavy blows upon Mrs. Lewis’s head. The wounds quickly proved fatal. The appellant, charged with first degree murder, was convicted of second degree murder and was sentenced to imprisonment for 21 years. His principal contention for reversal questions the sufficiency of the proof.

The State’s case rested upon circumstantial evidence, but we find it amply sufficient to sustain the verdict. The crime was discovered not long after noon when Mrs. Lewis, sitting on her own front porch, sought help from some passing high school students. The students did what little they could, and obtained medical assistance, but the situation was hopeless. The police investigation indicated that robbery had been the assailant’s motive. There was blood inside the house— especially in the bedroom, where the attack apparently occurred. The decedent’s purse, which she customarily kept pinned inside the front of her dress, had been torn away and stuffed under the mattress, with only 3 or 4 pennies left in it. It was also shown that Mrs. Lewis usually kept her food in a small box, which she wrapped in a bread paper and stored in her freezer.

Boyette, the appellant, is apparently an alcoholic. On the morning of the crime he appeared at a liquor store in Hampton, begged a dollar from the proprietor, who knew him well, and bought a fifth of a gallon of wine with the dollar. Later in the morning Boyette came back and vainly tried to sell the proprietor some frozen food from a small box wrapped in a bread paper. Still later Boyette came back again with 55 cents in change and bought a smaller bottle of wine.

It was shown that during the lifetime of Mrs. Lewis’s husband, Boyette had stayed with the couple at times. The jury were warranted in inferring that Boyette knew where the decedent kept her money and her food. There was also extremely damaging testimony from witnesses who saw Boyette running away from the back part of the victim’s house at about the time the assault must have taken place. Boyette was drunk when he was arrested later that same afternoon.

There was other corroborating proof that we need not narrate. There were also discrepancies, such as differences about exact times of day, of the kind that often emerge when witnesses give their own versions of an exciting or violent occurrence. Such conflicts in the testimony are matters to be considered by the jurors when they weigh the testimony. We find in the record an abundance of substantial evidence to support the verdict, which concludes our inquiry into the sufficiency of the proof.

The appellant also complains about the trial court’s action in allowing the State to show that before Mrs. Lewis went into a coma she stated that it was Boyette who had hit her. That statement is not shown to have been admissible, but the court corrected the error by later admonishing the jury not to consider it for any purpose. The defense was apparently satisfied with the admonition, for there was no renewal of the objection nor any request for a mistrial. In the circumstances, no reversible error appears. Howe v. Freeland, 237 Ark. 705, 375 S. W. 2d 666 (1964); Wiley v. State, 234 Ark. 1006, 356 S. W. 2d 240 (1962).

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    ST. MICHAEL HOSPITAL and ARGONAUT INSURANCE COMPANY v. Barbara Sue WRIGHT
    5-5544
    465 S. W. 2d 904
    Opinion delivered April 26, 1971

      Tackettj Young, Patton ér Harrelson; By: Nicholas H. Patton, for appellants.

      John W. Goodson and Newman, Smith & Britt; By: Norman Smith, for appellee.
   Lyle Brown, Justice.

Appellee filed a claim for workmen’s compensation benefits against appellant hospital, her employer, alleging that she had sustained an injury while attempting to move a patient from a stretcher to a bed. The commission found that appellee had sustained a compensable injury to her back. The circuit court affirmed and appellant hospital and its workmen’s compensation carrier appeal. The sole question here is whether there is substantial evidence to support the finding of the commission that claimant was injured in the course of her employment.

Appellants first contend that due to the fact that the referee was the only person who had an opportunity to personally hear the testimony of the claimant and the other witnesses, his decision to disallow recovery should somehow be given more consideration than the commission apparently gave it, particularly in the instant case since the commission’s order was the result of a two to one vote. Needless to say, there is no basis in any of our decisions for appellants’ suggestion, as they recognize by their citation to Potlatch Forests, Inc. v. Smith, 237 Ark. 468, 374 S. W. 2d 166 (1964). In that case the court quoted from Moss v. El Dorado Drilling Co., 237 Ark. 80, 371 S. W. 2d 528 (1963), wherein we said: “We take this occasion to point out that it is the duty of the commission to make a finding according to a preponderance of the evidence, and not whether there is any substantial evidence to support the finding of the referee.” After quoting the above rule from the Moss case, the court in Potlatch Forests said: “Thus, as stated at the outset, we can only concern ourselves with whether the finding of the full commission was supported by any substantial evidence.” To the same effect see Lane Poultry Farms v. Wagoner, 248 Ark. 661, 453 S. W. 2d 43.

The remaining arguments of appellants are that the commission’s reasoning in arriving at a conclusion as to disability was improper and that the commission ignored testimony which tended to contradict appellee’s testimony. The rule we follow is that if there is substantial evidence to support the commission’s decision, we will affirm. Substantial evidence to support the commission is the extent of our inquiry on appeal.

In determining whether there is substantial evidence to support the findings of the commission, we view the evidence in the light most favorable to the action of the commission. Herman Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487 (1968). There we said: “The question is not whether the testimony would have supported a finding contrary to the one made, but whether it supports the finding which was made.” With that rule in mind we summarize claimant’s testimony. She said she sustained an injury to her back while attempting to move a heavy and intoxicated patient from a stretcher to a bed; that at the time she was acting in the course of her employment as head nurse of the intensive care unit of the appellant hospital; that she felt a sharp pain go down her leg; that she immediately took a medication for relaxing muscles; that she tried to work the next night but was unable to do so; and that she was admitted to the emergency room the following day in severe pain, subsequently hospitalized, and later operated upon to remove a herniated disc. According to our decision in Nationwide Warehouse Market v. Whisenant, 249 Ark. 604, 460 S. W. 2d 90, the foregoing testimony is sufficient to support the commission. In Whisenant this court said:

Appellee produced no eyewitnesses to corroborate the occurrence; he testified that he was working alone in a back room of the warehouse. There was testimony adduced by appellant to sustain its contentions (1) that appellee had said he injured himself while playing with his children; (2) that appellee attempted to influence some witnesses to testify in his behalf; and (3) that the incident was not reported to the appellant at the time of occurrence. On those conflicting issues it is apparent that the commission accepted appellee’s evidence and rejected the evidence which was in conflict therewith. What we said in Kivett v. Redmond Company, 234 Ark. 855, 355 S. W. 2d 172 (1962), is equally applicable here: “The question is ultimately a simple one of credibility, a matter lying within the exclusive province of the commission. . . . We are bound by the commission’s findings upon the disputed question of fact.”

Although we have already found substantial evidence to support the commission, appellee also introduced evidence to corroborate her own testimony. Witness Teresa Gardner testified that she saw appellee reach across the bed and pull the patient and heard appellee say she hurt her back. The testimony which appellants introduced to contradict the testimony of appellee and Teresa Gardner need not be reviewed since our inquiry is whether there is substantial evidence to support the commission, not whether there is substantial evidence to support some other finding. Hughes, supra. Further, the Hughes decision states: “In order to justify a reversal of the commission’s decision, one appealing must show that the proof is so nearly undisputed that fair-minded men could not reach the conclusion arrived at by the commission.” Certainly, appellants have not met that requirement.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Clifton WHITLEY and Kathryn D. WHITLEY v. Harold Stanley IRWIN and Iona Jane IRWIN
    5-5490
    465 S. W. 2d 906
    Opinion delivered April 26, 1971

      Warner, Warner, Ragon <1? Smith, for appellants.

      Charles I. Evans, for appellees.
   John A. Fogleman, Justice.

This case involves the proceeds of a policy of fire insurance for $2,000 issued by Fireman’s Insurance Company to appellants Clifton and Kathryn D. Whitley on October 31, 1964. It covered a two-story dwelling house. On March 5, 1966, the Whitleys conveyed the property on which the house was located to appellees Harold Stanley and Iona Jane Irwin. The Irwins agreed to pay the Whitleys $700 cash and to assume a note secured by mortgage payable to „W. W. Carolan, Trustee, on which the balance amounted to $1,734. The Irwins also executed a note in favor of the Whitleys for $1,266 payable at the rate of $60 per month, plus interest until it was fully paid. A few days after this conveyance, Mrs. Whitley attempted to cancel the policy, but the insurance agent who issued the policy advised that there could be no cancellation without surrender of the policy. Thereafter, on March 18, 1966, while the Whitleys were still in possession of the dwelling house it was destroyed by fire. When the insurance company denied liability, appellants filed suit on August 15, 1967, against the insurance company, which answered denying liability. W. W. Carolan, Trustee, intervened claiming the policy proceeds to the extent of the Whitleys’ liability on the note payable to him. During the pendency of the litigation the balance due on this note was paid by the Irwins. At the time of the trial they had also paid the note due the Whitleys.

The insurance company later paid the face amount of the policy into the registry of the court on April 15, 1968. On the date of this payment, the Irwins intervened claiming the policy proceeds. One-third of the policy proceeds was paid to the attorney for the Whitleys. The chancery court, to which the case was transferred on October 29, 1969, on motion of appellees, awarded the balance to the Irwins.

Appellants assert three points for reversal, which are:

I. There was no effective transfer of the insurance policy from the Whitleys to the Irwins due to the personal nature of the insurance contract.
II. The purported transfer of the insurance from the Whitleys to the Irwins was void for lack of consideration.
III. The equitable maxims requiring good faith and diligence in the assertion of one’s rights should bar the appellees from any recovery of the insurance proceeds.

Appellants’ argument that the contract of insurance was personal and did not pass with the title to the property is correct. Appellants paid the premiums to the insurance company. The contract was personal with them for their benefit and was in no sense the proceeds of the property destroyed. Barner v. Barner, 241 Ark. 370, 407 S. W. 2d 747. Under the circumstances, if appellants were not entitled to recover on it, no one was. Langford v. Searcy College, 73 Ark. 211, 83 S. W. 944. McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88; National Union Fire Ins. Co. v. Henry, 181 Ark. 637, 27 S. W. 2d 786. This principle of law is not contested by appellees. They contend, however, that it is inapplicable because appellants are estopped by their own actions from denying appellees’ right to the insurance proceeds, that appellees asserted their own claim with due diligence, that they are entitled to be subrogated to the rights of Carolan, that actual transfer of the policy was prevented by unavoidable casualty and that appellants are unjustly enriched if they are permitted to retain the insurance proceeds.

Determination of the questions raised depends for the most part upon the answers to points asserted by appellees in support of the decree. The sale by appellants to appellees was closed in the office of the appellees’ attorney on Saturday morning. He inquired whether the insurance was to be transferred. The Irwins did not have the money to pay the unearned premium, but testified that it was to have been transferred and that Mr. King, who was her father, and Mrs. Rhea Eichor, both of whom were present, offered to advance the unearned premium to the Whitleys. Mrs. Eichor testified that her offer to lend the money was declined by the Irwins. Mrs. Irwin stated that at that time it was thought that the office of the insurance agency where the transfer would have had to have been accomplished was closed. Mr. King and Mrs. Eichor stated that the primary reason for deferring action was the Irwins’ haste to return to Louisiana. It was agreed that the matter would be deferred until the Irwins returned from their residence in Louisiana after Mr. Irwin had completed the following week’s work. Mr. Irwin testified that, as soon as the insurance was transferred and the unearned premium paid, the insurance and insurable interest were to be theirs.

The Irwins admittedly did nothing else to accomplish the transfer, or to collect the insurance proceeds, until the Whitleys had sued and recovered even though both of them knew that the Whitleys were trying to collect from the insurance company. Mrs. Irwin testified that she did not talk to either of the Whitleys about the collection of the insurance during the year following the occasion when Mrs. Whidey called to advise the Irwins that the house had burned. There is little room for doubting that Mrs. Irwin knew that the Whitleys were endeavoring to get a lawyer to sue the insurance company.

Testimony of Mr. Whitley that he reserved the bathroom fixtures and cabinets in the house was disputed. Evidence that the Irwins intended to convert the house into a barn was undisputed.

We find nothing on which to base an estoppel against appellants in this case, to indicate that it was an issue in the trial court or to imply that the trial court found an estoppel. On the other hand it might well be said that the Irwins effectively estopped themselves from claiming the insurance proceeds.

In the first place, the absence of evidence that any action or inaction on the part of the Irwins was induced by any representation made by the Whitleys bars any valid claim of estoppel. Morgan v. Wells, 242 Ark. 499, 415 S. W. 2d 523. In the second place, the primary requisite of equitable estoppel is lacking because the Whitleys did not, by acts, language or silence, misrepresent or conceal any material fact from the Irwins at any time. Exchange Bank & Trust Co. v. Gibbons, 228 Ark. 454, 307 S. W. 2d 877. In the case just cited, we pointed out that estoppel operates to put the party entitled to its benefit in the same position as if the thing represented were true. We also held the doctrine inapplicable where the result is attributable to carelessness or ignorance of the law on the part of the party claiming its benefit. Here, there was nothing said by either of the Whitleys which could have been the basis of any change of position by the appellees. The position of the Irwins clearly resulted from their own failure to take any steps to effect a transfer of the insurance policy or their ignorance of the legal effect of the insurance contract and of their failure to effect the transfer, or both. Furthermore, estoppel must be based on facts existing at the time the injured person is caused to act and not upon subsequent events. Pohnka v. The First National Bank of Wynne, 224 Ark. 599, 275 S. W. 2d 641.

The Irwins’ failure to assert their claim after the destructive fire and after being apprised of efforts by appellants to collect the insurance proceeds was actually a bar to their assertion of a claim to the proceeds after the efforts of the Whitleys caused their payment into court. Where one stands by and fails to assert a claim, he cannot be heard to assert it against the interest of those who relied on his silence. Johnson v. Spencer, 222 Ark. 710, 262 S. W. 2d 290. It seems only reasonable to assume that the employment of an attorney by the Whitleys and the institution of the suit against the insurance company following the failure of the Irwins to take any step toward effecting a transfer of the policy and their failure to assert any claim whatever to the proceeds with full knowledge that appellants were asserting a right thereto were in at least partial reliance upon this silence and inaction. Such silence and inaction may be the basis of equitable estoppel. Keylon v. Arnold, 213 Ark. 130, 209 S. W. 2d 459. Mere silence and inaction does constitute an estoppel under circumstances existing here, where appellees could have easily put both appellants and the insurance company on notice of their claim, if indeed they had any, and could have commenced the very action they did institute when they learned that the company had paid the policy proceeds into court. Their failure to do so could be taken to constitute a misleading reticence and apparent acquiescence in, and ratification of, what was being done. Stewart Oil Co. v. Bryant, 153 Ark. 432, 243 S. W. 811.

Appellees base their claim of subrogation upon a clause in the Carolan mortgage stating the agreement of appellants to keep the dwelling insured for full insurable value with loss clause in favor of the mortgagee. There was no such clause in the policy. We have held that such a stipulation is an appropriation of the insurance proceeds to the satisfaction of the mortgage indebtedness. See Bonham v. Johnson, 98 Ark. 459, 136 S. W. 191; Sharp v. Pease, 193 Ark. 352, 99 S. W. 2d 588. Even so, the doctrine of subrogation comes into play in Arkansas only when one not primarily liable pays the debt. See Baker v. Leigh, 258 Ark. 918, 385 S. W. 2d 790. The primary liability of the Irwins for the payment of the debt is beyond question. In Lindley v. Marriatt, 196 Ark. 1178, 114 S. W. 2d 453, we said:

When one purchases property on which there is an encumbrance and assumes and agrees to pay off the encumbrance, he becomes, so far as the debt is concerned, primarily liable, and he cannot, by paying it off, be subrogated to the rights of the mortgagee against the person from whom he purchased.

Appellees cite no authority whatever for their contention that unavoidable casualty prevented the accomplishment of the transfer of the insurance. It is based on the fact that Mr. Irwin suffered an injury during the week following the conveyance of the property and the statement that he was unable to travel prior to the destruction of the property some 13 days later. We are unable to fathom the basis of this contention. Any merit it might have is negated by the total absence of any effort on the part of either of the appellees to make any other arrangement for the transfer, to offer any explanation for their nonappearance or even to attempt any step to establish their rights before the collection of the insurance proceeds in spite of the fact that they were at all times making payments on both the note due Carolan and that due appellants. Either Mr. King, Mrs. Irwin’s father, who lived in the vicinity with the Eichors, or Mrs. Eichor might have been utilized as an agent to make the payment and accomplish the transfer, but was not. Appellees did not avail themselves of the services of their attorney who represented them in the closing. While Mr. Irwin’s injury may have been such as to prevent travel by either him or his wife, it did not foreclose timely use of the telephone or mails. The record does not reveal any attempt on the part of appellees to pay the unearned premium to the Whitleys before or after the fire. We find no merit in this argument.

We do not find the doctrine of unjust enrichment to require payment of the insurance proceeds to appellees. In the deed from the Whitleys to the Irwins a lien was retained to secure the payment of the note representing the balance of the purchase price. In effect, the Whitleys held a mortgage on the property, subject only to the Carolan mortgage. The general rule recognized and applied in this state is that a mortgagee of real property who effects insurance on the mortgaged property at his own expense and for his own benefit, which is not limited to his interest as mortgagee, has a right to recover the proceeds of the insurance for his own use and benefit and the money received by him is not a payment on the mortgage, even when his only insurable interest is that of a mortgagee. Ponder v. Gibson-Homans Co., 166 Ark. 591, 266 S. W. 682.

The maxim or doctrine appellees rely upon is that no one shall be allowed to unjustly enrich himself at the expense of another. The word “unjustly” as so used means “unlawfully.” Sheasgreen Holding Co. v. Dworsky, 181 Minn. 79, 231 N. W. 395 (1930); American University v. Forbes, 88 N. H. 17, 183 A. 860 (1936); Greenwich Contracting Co. v. Bonwit Const. Co., 156 Conn. 123, 239 A. 2d 519 (1968). One who is free from fault cannot be held to be unjustly enriched merely because he has chosen to exercise a legal or contract right. Worthen Bank & Trust Co. v. Franklin Life Ins. Co., 260 F. Supp. 1 (D. C. Ark. 1966), aff’d 370 F. 2d 97 (8th Cir. 1966); Pelser v. Gingold, 214 Minn. 281, 8 N. W. 2d 36 (1943). One is not unjustly enriched by receipt of that to which he is legally entitled. American University v. Forbes, supra.

As appropriately stated by District Judge Henley in the Worthen case, “Parties to business transactions are required to act justly and honestly, but they are not required to act unselfishly or altruistically.” A moral duty does not meet the demands of equity in this regard, in the absence of some specific legal principle or situation which equity has established or recognized bringing a case within the scope of the doctrine. American University v. Forbes, supra. Anderson v. Anderson, 155 Kan. 69, 123 P. 2d 315 (1942). No recovery of money received can be based upon unjust enrichment when the recipient can show a legal or equitable ground for keeping it. Beauregard v. Orleans Trust Co., 108 Vt. 42, 182 A. 182 (1936).

Since the Whitleys had a legal right to the proceeds of the insurance policy, the doctrine of unjust enrichment will not support the decree.

The decree is reversed and judgment entered for appellants for the proceeds of the policy held in the registry of the chancery court.


author: Frank Holt, Justice.

text:
    Henry HIGGINS v. GENERAL MOTORS CORP. et al
    5-5398
    465 S. W. 2d 898
    Opinion delivered April 26, 1971

      Howell, Price, Howell ir Barron, for appellant.

      Wright, Lindsey & Jennings and Barber, Henry, Thurman, McCaskill & Amsler, for appellees.
   Frank Holt, Justice.

This is a tort action for damages allegedly resulting from a defectively manufactured brake hose. In September 1964, appellant purchased a 1965 Pontiac Catalina from appellee Horace Terry Pontiac Company (doing business at that time as Milner-Terry Pontiac Company). Almost four years and some 16,000 miles later, the Catalina’s front brake hose ruptured, thus rendering the hydraulic braking system ineffective and allegedly causing appellant to ram into the rear of another vehicle. In April 1969, or about ten months after the accident, appellant received a recall letter from appellee General Motors Corporation stating that the front brake hoses on some full-size 1965 Pontiacs were subject to fatigue and rupture after extensive usage and should be immediately replaced. The letter further indicated that: “If this condition should exist on either hose, a sudden heavy brake application might cause the brake hose to rupture and result in a loss of hydraulic braking action.”

On June 30, 1969, appellant filed suit against both appellees (hereinafter referred to as Terry and General Motors), premising his complaint only on the theory of strict liability in tort. Terry answered and General Motors demurred. Upon arguments of counsel, the trial court sustained the demurrer and dismissed the complaint as to General Motors, from which ruling appellant does not appeal. Thereafter, Terry filed a cross complaint against General Motors as a third-party defendant for full indemnity or, in the alternative, contribution in the event of an adverse judgment. At about this same time, appellant received a second notice from General Motors warning him of the potential danger of the brake hose originally installed in his Catalina and urging him to have it replaced.

Prior to trial, Terry propounded a “request for admissions” to third-party defendant General Motors. In its answer, General Motors admitted that there existed a possibility of an unexpected rupture of the brake hose and a resulting loss of braking power in certain of its 1965 Pontiacs, including the Catalina model. General Motors objected, however, to the introduction into evidence of either this request or its answer. A ruling on the objection was reserved and the case proceeded to trial with the court sitting as a jury. Appellant attempted to enter the recall letters into evidence, to which both appellees objected. General Motors objected in that appellant had no cause of action against it (the demurrer having been sustained); Terry objected in that the letter:

* * * is not relevant or an admission against Horace Terry Pontiac, but we don’t have any objection to the letter being in evidence itself. We do have an objection to it being considered on the complaint of the plaintiff against Horace Terry. It’s not an admission by Horace Terry of anything. That’s the only basis for our objection.

Subsequently the trial court ruled that the request for admissions, its answer, and the recall letters were all properly admissible into evidence and so received them.

After considering all testimony and evidence introduced by the parties, the trial court made, in pertinent part, the following findings of fact:

That said 1965 Pontiac Catalina was in a defective condition in that the flexible front brake hoses did fatigue after extensive usage.
# # *
That ... no evidence shows adnormal or abusive use of the product, or use in a manner not intended by the seller.
# # *
That a defective right front brake hose that ruptured was a proximate cause of the collision and the damages sustained by [appellant].
That [appellant] was not guilty of any negligence that was a proximate cause of his damages.

However, the court also found that there was po allegation or proof that the defect was caused by the negligence of either appellee. The reason for this deficiency was, of course, because appellant chose to proceed under the theory of strict liability which obviates the necessity of proving negligence. Nonetheless, the trial court concluded that since Arkansas law has not yet embraced the rule of strict liability in defective product cases, appellant was not entitled to judgment. Hence this appeal urging for reversal that the tort theory of strict liability should be adopted in products liability cases and, thus, replace the sales theory of warranty.

■ We think that even if this jurisdiction had previously adopted the theory of strict liability in tort for defective products, appellant still could not have prevailed because of his failure to have effectively proven a pre-existing defect by admissible and competent evidence.

Generally speaking, strict liability simply eliminates the necessity of proving negligence as a prerequisite to recovery for injuries received from defective products. See, e. g., Putman v. Erie City Mfg. Co., 338 F. 2d 911 (5th Cir. 1964); Santor v. A & M Karagheusian, Inc., 44 N. J. 52, 207 A. 2d 305 (1965). However, a plaintiff must still prove a defect in design or manufacture which was a proximate cause of his injury. This imposes upon him the burden of proving that the product was in a defective condition at the time it left the hands of the particular seller. See Comment (g), Restatement Torts, Second, § 402(a). In the absence of direct proof that the product is defective because of a manufacturing flaw or inadequate design, plaintiff must negate the other possible causes of failure of the product for which the defendant would not be responsible in order to raise a reasonable inference that the dangerous condition existed while the product was still in the control of the defendant. See Jakubowski v. Minnesota Mining & Mfg., 42 N. J. 177, 199 A. 2d 826 (1964). Otherwise, proof of proximate causation would be reduced to rank speculation [see Delta Oxygen Co. v. Scott, 238 Ark. 534, 383 S. W. 2d 885 (1964)]; and this clearly is not an objective of strict liability.

In the case at bar, appellant is now prosecuting his claim only against appellee Terry, the distributor or retailer. The admissions which Terry elicited in its request for admissions as part of its third-party action were binding only on General Motors. See Young, Adm’r. v. Dodson, 239 Ark. 143, 388 S. W. 2d 94 (1965). Similarly, the recall letters were not proper evidence against Terry. When the letters were proffered by appellant, Terry responded by urging the propriety of their introduction for the limited purpose of substantiating its third-party complaint against General Motors, but specifically objected to their relevancy or competency (since they were admissions only by and solely against General Motors) as evidence for appellant’s claim against appellee Terry. The trial court tentatively allowed the letters into evidence; and subsequently, in its written conclusions of law, found the letters to be admissible. It is unclear whether the court intended this evidence to be admitted only for the limited purpose urged by Terry. But since no such specific delimitation was expressed, we may assume that the recall letters issued by General Motors were also admitted against Terry. If so, we cannot agree.

Although the letters were certainly relevant to the issue of a pre-existing defect in the brake hoses, they were not competent as against Terry in view of the restrictive objection. The letters emanated from a source other than the party against whom they were sought to be introduced. As such, absent a showing that they were adopted by or otherwise binding upon it, the contents of the letters of recall constituted mere hearsay and res inter alios acta as to Terry. See, e. g., Central Mfg. Co. v. St. Louis-San Francisco Ry. Co., 394 F. 2d 704 (8th Cir. 1968); Southern Express Co. v. Todd, 56 F. 104 (8th Cir. 1893). See, also, 31A C. J. S. Evidence § 318. However, the admissions contained in the letters were clearly competent for the limited purpose of Terry’s third-party action against General Motors.

Since neither the answer of General Motors to the request for admissions nor the recall letters were competent evidence by appellant against Terry, appellant’s proof is deficient that the brake hoses were in a defective condition at the time he purchased the Catalina from the dealer. The evidence does not sufficiently negate the possibility that the rupture resulted from normal wear and tear or discount other various contingencies which may have caused the rupture for which the seller could not be held responsible under a theory of strict liability. Thus, there was neither competent direct proof of a pre-existing defect, nor any other proof from which there could properly arise a reasonable inference that a dangerous condition existed while the Catalina was still in the control of Terry. Consequently, we need not at this time determine the propriety of judicially accepting or rejecting strict tort liability in this jurisdiction for defective products, for even under that theory appellant could not have prevailed. Moreover, appellant cannot prevail under traditional tort concepts since he neither alleged nor proved negligence on the part of Terry. It follows that the judgment below must be affirmed and the case dismissed as to appellee Terry and, also, as to appellee General Motors on the cross complaint.

Affirmed.


text:
    Billy Joe HANEY v. Louise NOBLE and R. R. NOBLE
    5-5547
    466 S. W. 2d 467
    Opinion delivered April 26, 1971
    [Rehearing denied May 31, 1971.]

      Brown, Compton, Prewett ér Dickens, for appellant. '

      Richard Earl Griffin and Switzer, Switzer ir Tanner, for appellees.
   Frank Holt, Justice.

This controversy arose out of an automobile accident. The appellee R. R. Noble accompanied by his wife, appellee Louise Noble, had stopped their pickup truck at the entrance to an intersection when their vehicle was struck from the rear by an automobile driven by appellant. A jury awarded Louise Noble $15,000 and R. R. Noble $2,000.

Appellant first contends for reversal of the judgment that the evidence is insufficient to support the amount of damages awarded appellees. It is an often stated rule of this court that on appeal the evidence will be viewed most favorably to the appellee to determine whether the jury’s award is so great as to shock the conscience of the court, or demonstrates that the jurors were motivated by passion or prejudice. Gordon v. Smith, 247 Ark. 253, 444 S. W. 2d 873 (1969). Accordingly, we review the evidence.

There was medical evidence that Mrs. Noble has a 10% permanent partial impairment of the cervical spine and of her body as a whole as a result of hyperextension flexion of the cervical spine and that this condition will probably worsen. Appellee has suffered pain since the accident (a year) and the pain will continue for the rest of her life. She is 58 years old with a life expectancy of 17 years.

Mrs. Noble testified to having spent 13 days in the hospital following this accident, during which time she was kept in traction and was never free of pain. After her release, she wore a “collar” every day for four months which afforded partial relief. Becoming dissatisfied with her improvement, she consulted an orthopedic surgeon who prescribed a traction head-halter treatment and, also, pain relieving and muscle relaxant medications. This fraction treatment requires that she sit for 10-minute intervals two to three times a day in a harness which is attached by a rope to an 8- to 10-pound weight suspended from a pulley. This device temporarily breaks the cycle of pain. She testified that this continuous treatment and medication improved her condition; however, she was still unable to move her neck without experiencing pain and was unable to perform the activities she normally engaged in prior to her injury.

Appellees offered evidence showing that Mrs. Noble maintained her home and her yard without assistance prior to the accident and that she spent one-third of her time helping Mr. Noble (who is 70 years of age) in the operation of their farm by driving a tractor, mending fences, and harvesting crops. After the accident she was unable to effectively accomplish her household chores and could not maintain her yard or assist in the farm work. She is no longer able to sew because of partial numbness in her fingers. The evidence shows that appellees were constant companions. Their work, as well as their recreational activities, was carried on as a husband and wife team. Since the accident, Mrs. Noble has been unable to accompany her husband on fishing trips and other recreational activities. As a result, they sold their camper. Appellees have also sold their house trailer because of non-use since she is also unable to travel.

In view of this substantial evidence, we cannot say that the damages awarded appellees were excessive. Blissett v. Frisby, 249 Ark. 235, 458 S. W. 2d 735 (1970); Bailey v. Bradford, 247 Ark. 1048, 449 S. W. 2d 180; Dyer v. Payne, 246 Ark. 92, 436 S. W. 2d 818.

Appellant contends that no evidence was adduced at trial concerning future medical expenses and that the court erred in giving an instruction (AMI 2204) which allowed Mrs. Noble to recover for future medical expenses. Appellees’ medical witness said: “I would assume that she would have continuous symptoms that probably might get worse.” This statement, together with the evidence that appellee had a 10% permanent impairment of the body as a whole and the expenditure of $836.68 for past medical expenses, is sufficient for the jury to consider and calculate future medical expenses. In Belford v. Humphrey, 244 Ark. 211, 424 S. W. 2d 526 (1968) we allowed the jury to infer future medical expenses where the jury had before it a history of past medical expenses that had accrued prior to trial. Therefore, no error was committed by the trial court.

Appellant also complains that error was committed by submitting to the jury the issue of diminished earning capacity in the future (AMI 2207). Appellant asserts there is ‘‘not one iota of testimony” showing Mrs. Noble to have ever been employed or to have earned wages and, therefore, the jury would have to speculate as to her future loss of earning capacity. We find no merit in this contention. The record here clearly shows Mrs. Noble as being a productive member of her household by performing services much greater than those ordinarily rendered by a wife. Her capabilities were not limited to performing only the usual household affairs. Also included were sewing for her relatives “and all,” and assisting her husband one-third of her time in their farm activities. Such capabilities are not devoid of some value. Mrs. Noble’s capacity and ability to work were clearly demonstrated. The jury could reasonably infer a probable diminution in her earning capacity based upon her impaired abilities. Cf. Long v. Henderson, 249 Ark. 567, 459 S. W. 2d 542 (1970) and Blissett v. Frisby, 249 Ark. 235, 458 S. W. 2d 735 (1970). We have long recognized the right of minors to recover for future diminution of earning capacity where no history of wage earning was demonstrated. Missouri Pac. R. Co. v. Maxwell, 194 Ark. 938, 109 S. W. 2d 1254 (1937); St. Louis, I. M. & S. R. Co. v. Waren, 65 Ark. 619, 48 S. W. 222 (1898). A fortiori, certainly such reasoning would apply in the case at bar to an adult who is a productive member of the family.

Affirmed.


text:
    Maybell ROOKS v. STATE of Arkansas
    5543
    466 S. W. 2d 478
    Opinion on rehearing delivered April 26, 1971

      Bon McCourtney ir Associates; By: Richard Jarboe, for appellant.

      Ray Thornton, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was charged by information with first degree murder for the fatal shooting of her husband. A jury found her guilty of murder in the second degree and imposed a sentence of twenty-one years in the State Penitentiary. This appeal is taken from a judgment on that verdict. Appellant first contends for reversal that an improper procedure was permitted in impeaching her testimony.

Testifying in her own behalf at trial, appellant claimed self-defense. She related to the jury, and adduced other evidence, that her husband, the deceased, was an intemperate drinker, that he had on several occasions threatened to take her life, and that, at least twice in the past, he had intimidated her with a knife. Shortly before the shooting, according to appellant, an altercation erupted between her and the deceased in their backyard where he was working on a car. There was evidence that he was intoxicated at this time. The argument became violent; and, as she fled the scene, she was struck in the arm by a flying object (a wrench) thrown at her from the yard by the deceased. Although the object hit her with little force and only slightly bruised her, appellant claimed that the incident, coupled with her husband’s immediate further threat as she entered their house: “I’m going to gather up a bunch of tools and I’m going to kill you,” caused her to panic and to momentarily pass out. When she came to, the appellant, according to her testimony, at once obtained a shotgun from inside the house, returned to the yard and shot her husband as he was advancing upon her.

On cross- and recross-examination the prosecuting attorney, over defense objections, sought to impeach appellant by reference to a statement which she had made to the police while in custody. On recross-examination, for example, the prosecuting attorney asked:

# # # When you told your story that night, you said that your husband was running away from you when you shot him at that time, didn’t you?

Counsel for appellant objected to this reference to a prior statement because it had not previously been admitted into evidence. The objection, however, was overruled and appellant thereafter denied making this statement. Later, in an attempt to further impeach appellant’s story and thereby discredit her plea of self-defense, the State adduced rebuttal testimony from an investigating officer that appellant had made an in-custody statement that she shot her husband while he was “walking or running away from her.” Objection was again registered against reference to that statement on the grounds that it was in the nature of an in-custody admission and had not been judicially determined, in the proper manner, to have been voluntarily made. However, the State argued, in effect, that inasmuch as the prior inconsistent statement was being offered simply for the limited purpose of impeaching appellant’s testimony and not as an admission, its consideration at trial was neither contingent upon a judicial predetermination of voluntariness nor subject to any exclusionary rules. Ultimately, the trial court overruled appellant’s objection and denied her subsequent motion to strike the officer’s testimony.

Appellant now asserts that the trial court erred in permitting the State to impeach her in-court testimony by the use of an in-custody statement without first having determined its voluntariness. Appellant contends in her brief that the language in Miranda v. Arizona, 384 U. S. 436 (1966) “controls the disposition of the case at bar. Many state and federal cases on this issue point to the clearness of the Supreme Court’s discussion about impeachment to reach a result favorable to appellant, [citing cases] Likewise, appellant submits that the language quoted from Miranda’ is so clear that it is not susceptible to argument. What could be clearer than what the Court has said about impeachment? It said that statements used to impeach must comply with its guidelines. Therefore, since the statement in the case at bar was not shown to be incompliance, the verdict must be set aside.” However, after appellant’s brief was filed, and following the submission of this case, the United States Supreme Court specifically held contrary to appellant’s contention. In doing so the Court acknowledged that Miranda “can indeed be read as indicating a bar to use of an uncounseled statement for any purpose.” The Court, in Harris v. State of New York, 401 U. S--, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), held that, even though a defendant’s statement is inadmissible against him in the State’s case in chief because of the lack of procedural safeguards which Miranda requires, the statement, however, can be used for purposes of impeachment to attack and test the credibility of the testimony of a defendant-witness about prior inconsistent in-custody statements where the trustworthiness of the evidence satisfies legal standards. Therefore, in the case at bar, we hold that it was permissible for the State to test the credibility of appellant’s trial testimony by cross-examination and by the rebuttal testimony of the investigating officer with respect to her allegedly voluntary and contradictory statement. In Harris the court said: "Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the truth-testing devices of the adversary process. * * * The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”

Appellant also cites to us Jackson v. Denno, 378 U. S. 368 (1964), and Ark. Stat. Ann. § 43-2105 (Supp. 1969) in support of her assertion that a Denno hearing was never held to determine the voluntariness of the contradictory statement. It must be remembered that this asserted contradictory statement was not offered in evidence by the State in presenting its case in chief. The appellant insists that from the evidence, the allegedly volunteered statement by appellant, before interrogation, was made when in custody and in a police dominated atmosphere. In denying that she made the statement, she testified that she was nervous and upset and could not remember making the statement. In Harris there was no contention that the contradictory statement was involuntary. However, the court also noted that the voluntariness of a confession is irrelevant when the defendant becomes a witness, and further stated: "We reject such an extravagant extension of the Constitution.”

In the circumstances, it is our view that the latest expression of the United States Supreme Court in Harris is controlling in the case at bar and renders Miranda, which appellant cites as dispositive of this case, inapplicable. In doing so, it appears to restore the validity of our previous decisions, such as Decker v. State, 234 Ark. 518, 353 S. W. 2d 168 (1962), 98 ALR 2d 1. There the contention was made that cross-examination of the defendant about inconsistent statements was impermissible since they were in the category of a confession and the proper foundation had not been established for the admission of a confession. We said: “Of course, a defendant in a criminal case who elects to testify is subject to impeachment like any other witness, and the purpose of the questioning was to establish that Decker had earlier made contradictory statements as to the circumstances of the killing.”

We turn now to .appellant’s second and final point for reversal. At the close of all the evidence, appellant moved that the prosecuting attorney be required to fully disclose in his opening argument the grounds upon which he would rely for a conviction. We agree with appellant that the trial court should have granted the motion by admonishing the State to comply with the request. Ark. Stat. Ann. § 43-2132 (Repl. 1964) provides that the party having the burden of proof shall also be entitled to give the opening and conclusion of final argument. However, this statute also expressly indicates that the party having the burden shall not enjoy the privilege of concluding the argument without first, upon demand of the adverse party, making a full statement of the grounds upon which he claims a verdict.

An examination of the record demonstrates, however, that the refusal of the appellant’s motion amounted to harmless error since the prosecuting attorney did in fact make an adequate preliminary disclosure of the grounds upon which he would rely for a conviction. Appellant complains that the prosecution, in the concluding portion of final argument, commented for the first time concerning her failure to produce any evidence of the deceased’s reputation for violence and also for the first time, asserted that appellant’s son, who did not testify, in all probability planted a wrench under the deceased’s body and put the shotgun in the house. However, we think the State’s concluding argument contained only proper rebuttal material in light of the matters discoursed upon in appellant’s preceding closing argument.

Affirmed.

Fogleman, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    John WEBER v. STATE of Arkansas
    5565
    466 S. W. 2d 257
    Opinion delivered May 3, 1971

      C. E. Blackburn, for appellant.

      Ray Thornton, Attorney General; Garner L. Taylor, Jr., Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

John Weber, appellant herein, was charged with larceny of a truck and of a boat, with escape from the county jail, and with being an habitual criminal. The court directed a verdict of not guilty on the charge of stealing the truck, but the jury convicted Weber of Grand Larceny (stealing the boat); also, it convicted him of Escape, and thereafter found him guilty under the habitual criminal statute. He was sentenced to 26 years for grand larceny and five years for escape. From the judgment so entered, appellant brings an appeal from the grand larceny conviction. For reversal, three points are asserted, which we proceed to discuss.

It is first contended that the court erred in admitting incompetent, irrelevant, and immaterial testimony by certain witnesses. Weber, who was being held in the Cleburne County jail on a charge of second degree murder, escaped on the morning of June 12, 1970. A manhunt was organized and Weber was located and arrested on the afternoon of that date by two deputy sheriffs on a road near Greers Ferry Lake. Denny Douglas, who lives close to the Lakefront Lodge, testified that he arose on the morning of June 12, between daylight and sunup, and noticed a man at the boat dock starting a dark colored boat “looked green from where I was”. He could not tell what type of clothing the man was wearing, nor could he describe the individual, other than that he was of average size. Actually, the witness knew no facts that connected Weber with the offense of stealing the boat, and his testimony deals more with the charge of stealing the truck, though the value of his evidence on that charge was negligible. It is true that the testimony was of no value to the state, but, that being true, we certainly cannot find any prejudice. No fact was testified to that could have possibly aided in the conviction, and if the testimony was inadmissible, it certainly has not been demonstrated that it was prejudicial. See Stout v. State, 244 Ark. 676, 426 S. W. 2d 800.

The same complaint is also made with reference to the testimony of State Trooper Noel Baldridge, but we certainly cannot agree with appellant that this testimony was irrelevant, incompetent, or immaterial. Baldridge testified that he learned that a boat and motor were stolen, was given a description of them and given a description of Weber’s height, weight and the color of his hair; also, that the escapee was wearing brown pants and a levi jumper. The officer stated that as he was crossing the Edgemont Bridge, he observed a man in a green fishing boat, going under the bridge. He said the occupant was a male with dark curly hair and was wearing a levi jacket; that he hollered and waved at the occupant of the boat, trying to get the latter to stop; that the man cut back behind him, turning his head in the other direction and went on under the bridge, and proceeded south.

“After I hollered at him from the bridge and he wouldn’t look toward me, I radioed to the command post at that time and told them that á boat of the description that we had and a man of the description that we had in the boat had gone under the bridge and they advised me to pursue this boat. I drove my unit to the, I believe it’s the Baker Boat Dock and got in a boat with a couple of fishermen and we gave pursuit to this green fishing boat.”

Baldridge stated that the closest they were able to get to the occupant of the green boat was from 100 to 150 yards, and that the other boat simply “outran us”. He said that four or five miles up the “Middle Fork” of Red River, the boat was found on the right bank with no one around it, and the gas tank empty. The officer took the number of the boat, and Phillip Davidson, operator and owner of the Lakefront Lodge and Restaurant, stated that the boat belonged to him, and had been taken from a boat dock. The only evidence that might have been considered objectionable was the statement by the officer that the boat found on the bank was the same boat that he had been chasing; however, though at the conclusion of the testimony by the witness, defense counsel moved that all of his testimony be stricken, there was no objection at all made to the answer referred to. We have already said that Baldridge’s testimony, in the main, was pertinent; accordingly the motion to strike was properly denied, and there being no objection to the specific question to the officer, nor to the answer made, there can be no merit to any contention of prejudice. The evidence of Baldridge was, of course, circumstantial, but it tied in with other circumstances that connected Weber with the crime. For instance, Ben Hubby testified that he saw appellant on the lake by Cove Creek, Weber being out of gas, and he (Hubby) towed him in. They looked for gas, finally found some at a store, went back to the boat, and Weber started the motor and left. The witness identified Weber, whom he did not know before that occurrence, and described the green boat in which he was traveling. This occurred between 9:00 and 10:00 o’clock in the morning.

Gerald Melton, who was fishing with his son and another person, saw Weber in the boat, and subsequently saw him again when appellant came to the fishing camp endeavoring to find gasoline. Melton described the boat and motor, and identified Weber as the operator. Deputy Sheriff Walt Barden testified that he, together with Deputy Sheriff Delbert Hooten, arrested Weber about “two miles up from Middle Fork” on an old logging road. Dogs were used and were apparently taken to the abandoned boat where they struck a trail. Weber was found standing in the road about an hour before dark. The testimony was sufficient to sustain the conviction.

It is next asserted that the court erred in failing to instruct the jury on the lesser offense of joy-riding or trespass as requested by the defendant. This point is tied in with point three which asserts that the state failed to sustain its burden of proof of the crime of grand larceny. As far as criminal trespass is concerned, the record does not reveal that any request was made for an instruction on this offense, nor was there any objection made to the court’s not giving such an instruction. But that is actually immaterial for our statutes on both criminal trespass and joy-riding do not include a boat. The criminal trespass statute, Ark. Stat. Ann. § 41-3919 (Repl. 1964) provides a fine for one, who without the consent of the owner, takes possession “of any horse, mule, automobile, bicycle, wagon, buggy, motorcycle and/or airplane for the purpose of riding or driving the same * * * It will be noticed that the word “boat” is not included. It is so firmly established as to need no citation of authority that criminal statutes are strictly construed, and nothing can be added or taken away from the precise or express language of the Act.

We have two “joy-riding” statutes. Both are found in Title 75, Motor Vehicles, Chapter 1, §§ 75-101 through 75-194 (Repl. 1957). The first is § 75-170:

“75-170. Unlawful taking of a vehicle.—Any person who drives a vehicle, not his own, without the consent of the owner thereof and with intent temporarily to deprive said owner of his possession of such vehicle, without intent to steal the same, is guilty of a misdemeanor. The consent of the owner of a vehicle to its taking or driving shall not in any case be presumed or implied because of such owner’s consent on a previous occasion to the taking or driving of such vehicle by the same or a different person. Any person who assists in, or is a party or accessory to or an accomplice in any such unauthorized taking or driving, is guilty of a misdemeanor.”

This section is a part of Act 142 of 1949. In this Act the word “Vehicle” is defined, § 75-102 (a), as:

“Every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.”

Certainly a boat does not come within this definition of vehicle. Immediately following the definition of “Vehicle” is a definition of “Motor Vehicle”, also a part of Act 142, § 75-102 (b), which reads as follows:

“Every vehicle which is self-propelled and every vehicle which is propelled by electric power obtained from overhead trolley wires, but not operated upon rails.”

Of course, the definition of a motor vehicle is simply a definition of a class of “vehicle”, i. e., it refers to those vehicles defined in (a) which are motorized.

It is apparent that these sections have no reference to boats. The other joy-riding statute is § 75-194 and is a part of Act 134 passed in 1911. It provides as follows:

“No chauffeur or other person shall drive or operate any motor vehicle upon any street or highway in this State in the absence of the owner of such motor vehicle without said owner’s consent, * * # Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction shall be fined a sum not exceeding two hundred dollars [$200.00] or imprisonment in the county jail for a period not exceeding six [6] months, or both, at the discretion of the court.”

Obviously, this statute has no reference to a boat.

Since these statutes do not in anywise deal with boats, there can be no merit in appellant’s contention.

The judgment is affirmed.

       This point would have been reached before the location where the boat was found abandoned.

       A11 of these items except horse and mule were added to the statute by an amendment in 1943.

       The deleted portions of the statute refer to provisions that are not pertinent to this appeal.


text:
    Lois ROGERS v. STATE of Arkansas
    5561
    466 S. W. 2d 252
    Opinion delivered May 3, 1971

      Kenneth Coffelt, for appellant.

      Ray Thornton, Attorney General; Ken Stoll, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, along with two other men, was charged with the crime of having unlawfully possessed a stolen tractor. Tried separately, the appellant was found guilty and was sentenced to imprisonment for five years. For reversal the appellant contends only that the trial court erroneously allowed police officers to narrate to the jury an admission of guilt which the officers wrongfully obtained by threatening to charge the appellant’s father with the offense, which the appellant himself had allegedly committed.

A study of the record shows that the appellant’s argument is based upon a misconception of what happened at the trial. The defense vigorously argued that the appellant’s admission of guilt was improperly obtained, because the officers resorted to a threat against the elder Rogers, as we have indicated. According to the record, however, the court sustained the argument of defense counsel and permitted the jury to hear only an admission made by the younger Rogers before the threat in question was made. We agree with the trial court’s conclusion that the earlier admission was voluntarily made. The court properly ruled that all statements elicited by means of the threat were involuntary and were not to be submitted to the jury. In the circumstances the record is simply devoid of prejudicial error with respect to the only point for reversal that is before us.

Affirmed.


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

text:
    John WEBER v. STATE of Arkansas
    5568
    466 S. W. 2d 253
    Opinion delivered May 3, 1971

      Reed ir Blackburn, for appellant.

      Ray Thornton, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

John Weber appeals from a second degree murder conviction arising out of the death of Claude Brock on the night of December 15, 1969, in the community of Concord, Cleburne County. Appellant advances- three points for reversal:

I. The court erred in allowing the introduction of ballistics testimony in that (a) appellant’s counsel was not permitted to cross-examine one of the State’s witnesses on that point; and (b) a proper foundation was not laid for the introduction of a shell casing;
II. Admissions purportedly made by the accused should have been suppressed; and
III. The court erred in ruling that Eva Jane Carter, a/k/a Eva Jane Weber, was not the wife of appellant and in permitting her to testify against appellant.

On the morning of December 16 Claude Brock was found dead in his front yard. He had been shot in the back by a high powered rifle. It was the State’s theory that appellant and Eva Jane drove to the Brock home on the previous night; that Brock was driving away from his home but stopped on the approach of the Weber vehicle; that the two men got out of their cars and engaged in conversation; and that appellant shot Brock with a rifle which appellant had, about a month before, obtained from Roscoe Brackett. The State’s case rested mainly on two items of proof. First, it showed by the testimony of Eva Jane that she and appellant drove to the Brock home on the night of December 15; that the two men conversed while standing outside their cars; that she heard a gun fire but could not say who fired it; and that appellant returned to the car exclaiming, "My God, Jane, I have got to get you out of here.” The witness said she knew appellant had a 30-30 rifle which was obtained from Roscoe Brackett and it was in the back seat of the car when the couple left Memphis the morning before the shooting that night. Second, Sgt. Honeycutt of the State Police, criminal investigation division, testified that he recovered a 30-30 bullet hull at the spot from whence the shot was said to have been fired. He obtained another bullet hull from Brackett, which was claimed to have been fired by the same rifle in November while Brackett owned the gun. Captain Paul McDonald, arms expert in charge of the State police laboratory, testified that “without a doubt” the two bullets were fired by the same rifle.

The foregoing recitation of testimony is sufficient to an understanding of appellant’s first point for reversal. Appellant says his counsel was not permitted to cross-examine Sgt. Honeycutt. The sergeant was called to identify the shell hulls which the State sought to introduce. After direct examination was completed the witness was instructed to stand aside. Appellant’s counsel suggested that he should be permitted to cross-examine Honeycutt. The court replied that such opportunity would be afforded. After witnesses Brackett and McDonald completed their tracing of the shells, Sgt. Honeycutt was called back to the stand and he was cross-examined extensively by appellant’s counsel. While the better practice would have been to permit the cross-examination immediately on completion of the direct examination, we see no prejudice in the adopted procedure.

The other assertion of error in Point I is that a proper foundation was not laid for the introduction of the shell hull obtained from Brackett. If there was a motion to strike the testimony of either Brackett or Officer Honeycutt, it is not abstracted. Furthermore, we have examined the detailed testimony of both witnesses on the point in question and it is clear that the evidence was sufficient to present a fact question.

The second point challenges the admissibility of statements purportedly made by the accused to the officers. On May 5, 1970, Sgt. Honeycutt interviewed appellant in the jail about mid-morning. The officer conceded that appellant appeared disheveled and sleepy, as if he had been up all night. The officer detected no odor of alcohol and said appellant responded coherently. The sergeant recited the preliminary statements he made to appellant which consisted of all the Miranda warnings, and said appellant indicated a willingness to answer questions. The officer said he asked these questions: “What did you do with the 50-50 rifle that you used to shoot Claude Brock with?” “What did you do with the automobile you were driving at the time the shooting occurred?” To those questions the appellant is said to have replied that he sold them somewhere in Mississippi. Appellant was asked about the 30-30 rifle he bought at Concord and he replied that he did not buy it, that he traded a drilling machine for it. (The latter statement corroborated a similar statement by Brackett.) The officer said he then asked appellant if he wanted to go into detail about the incident “and he stated he better consult a lawyer and the interview discontinued at this point.” A deputy sheriff testified that he was present when Sgt. Honeycutt interviewed appellant and fairly corroborated the sergeant’s testimony.

The accused testified at the Denno hearing. He categorically denied that he was given the Miranda warnings. He agreed that Honeycutt asked him the questions about the gun and the automobile, but he denied giving the answers Honeycutt recited. He said he told them he had been in Florida and he agreed with the officer that “running isn’t much fun.” He also admitted telling the officers he traded off the gun he got from “Slick” Brackett. Appellant said he was not drunk at the time of questioning and clearly recalled the interrogation. His main difference with the questioning officers was that he denied having been asked if he used the car and gun in connection with the killing of Claude Brock.

We have carefully reviewed the record on the question of voluntariness of the statements and considering the respectful consideration we give to the trial judge’s findings on the issue, we are unable to say the court erred in holding the statements to have been made and voluntarily given. Harris v. State, 244 Ark. 314, 425 S. W. 2d 293 (1968).

This brings us to appellant’s final point. The State gave notice in pretrial that it intended to call Eva Jane Carter, a/k/a Eva Jane Weber, as a witness against appellant. Appellant filed a motion to exclude her testimony on the ground that Eva Jane was his wife. At the conclusion of an evidentiary hearing the trial court ruled that Eva Jane and appellant were not husband and wife and therefore held the State could call her as a witness.

Eva Jane was the principal witness at the hearing on the motion to exclude her evidence. She relied (1) on a common law marriage in Texas and (2) on a marriage ceremony performed in Mexico. Here is a summary of her testimony on those two points:

John and I started dating in February 1958 and started living together as husband and wife in Seattle, Washington, in May 1958. We lived there six months and then went to Lubbock, Texas, where we lived and worked some four months. John worked as a mechanic and I was a waitress. From Lubbock we went to Colorado Springs and worked during the tourist season. From there we lived at various intervals in Idaho, Seattle, Indiana, following seasonal work, including the harvests. Then in 1963 we moved back to Lubbock and lived there three months. Then we returned to the west coast. During all those times we continuously considered ourselves husband and wife, cohabited as such, and held ourselves out as man and wife. Our baby was born in 1960. Here is my social security card in the name of Eva Jane Weber. Here is one of my withholding statements in the name of Jane Hunter Weber. We sent and received many letters in our travels and they all have our names on them as Mr. and Mrs. Weber. Here are some of them.
Then in 1964 we decided we should go through a marriage ceremony, especially since we had a baby. We went across the border to Texacali, Mexico. We inquired about where a couple could get married and we were "directed to a lawyer’s office. He performed the marriage ceremony, charging us fifteen dollars. Here is our receipt. The receipt is styled MARRIAGE ***** RECORDING ***** RECEIPT. It gives the lawyer power of attorney to record our marriage, receipts us for our money and certifies that he would send us our official marriage certificate after recording. We never received the certificate; I had a letter sent to him but it came back showing the lawyer deceased.
We have continued to live together. There have been times when we had quarrels and separated but would go back together. In fact I started divorce proceeding once but we made up and the matter was dropped.

Texas recognizes common law marriages and the requirements may be classified as minimal. “To establish a common law marriage there must be an agreement express or implied between the parties to become husband and wife, cohabitation in pursuance of such agreement, and a holding out by the parties that they are husband and wife.” Moore v. Jordan, 328 S. W. 2d 343 (1959). See Darling v. Dent, 82 Ark. 76, 100 S. W. 747 (1907). In Darling this court had occasion to treat with favor the validity of a Texas common law marriage. Eva Jane gave uncontradicted testimony which showed clearly that the parties met the three requirements of Texas law. In support thereof she produced her social security card, withholding statement, and numerous letters, all in the name of Mrs. Weber. Then there was the birth of the child, of which appellant was indisputably the father.

With respect to the purported marriage in Mexico, Eva Jane gave positive testimony that a marriage was there performed and presented a document which strongly corroborated her recitation of facts.

Appellant, having moved to exclude Eva Jane’s testimony on the ground that she was his wife, initially carried the burden of sustaining the point. McFarland v. State, 165 Ark. 431, 264 S. W. 938 (1924). But once substantial evidence of a marriage is introduced the marriage is presumed to be valid “and the burden of proof is on the party attacking it.” Yocum v. Holmes, 222 Ark. 251, 258 S. W. 2d 535 (1953). In Yocum the only evidence of the marriage was the bare statement of the wife that “she married Holmes in April 1950 in Camden, Arkansas.” That testimony was held sufficient to make a factual question as to whether the marriage took place.

A Mexican marriage was involved in Miller v. State, 235 Ark. 880, 362 S. W. 2d 443 (1962). There the court said: “No presumption of law is much stronger than the presumption that a marriage is lawful, innocent and not criminal.” It was further said that the presumption is so strong and so positive as to require one who asserts illegality to assume the burden of proving that illegality.

The abundance of evidence presented by the testimony of Eva Jane, and her supporting exhibits, were certainly sufficient to raise the presumption of marriage, both at common law in Texas and a ceremonial marriage in Mexico. Faced with that evidence it became incumbent on the State to refute it and not a syllable of testimony was offered to repudiate Eva Jane’s evidence. The trial court should have granted the motion to exclude.

Reversed and remanded.

Harris, C. J., and Fogleman, J., concur.

John A. Fogleman, Justice,

concurring. I concur in the result and all of the opinion except that part relating to the common law marriage. As I view the testimony, it clearly establishes the fact that the relationship between the witness and appellant was meretricious in its inception. This being so, it was necessary that there be affirmative proof of an abandonment of this relationship and the commencement of a new relationship. Even though the testimony of the witness was uncontradicted, it remained for the circuit judge to reach conclusions from inferences to be drawn from the testimony. The drawing of inferences is a part of the fact-finding process. I do not think it was unreasonable to have drawn an inference that the relationship continued as meretricious, at least until the attempted Mexican marriage. The circuit judge found discrepancies in the testimony of the witness at different times, and stated that he did not believe the later testimony of the witness about the parties’ living in Texas.

In determining the admissibility of this testimony, the circuit judge was the trier of the facts. If there is substantial evidence to support his finding when he is by law trier of the facts, we affirm. Mullins v. State, 240 Ark. 608, 401 S. W. 2d 9; Vaughan v. State, 169 Ark. 1212, 277 S. W. 866; Matthews v. Clay County, 125 Ark. 136, 188 S. W. 564; Cady v. Pack, 135 Ark. 445, 205 S. W. 819; French v. State, 187 Ark. 782, 62 S. W. 2d 976; Hooper v. State, 186 Ark. 1197, 57 S. W. 2d 810; Decker State, 85 Ark. 64, 107 S. W. 182; Beason v. State, 166 Ark. 142, 265 S. W. 956.

I am authorized to state that Chief Justice Harris joins in this opinion.


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    HOUSING AUTHORITY OF THE CITY OF LITTLE ROCK, ARKANSAS v. Gussie ALMAN
    5-5556
    466 S. W. 2d 266
    Opinion delivered May 3, 1971

      Smith, Williams, Friday ir Bowen; By; John T. Williams and William L. Terry, for appellant.

      Moses, McClellan, Arnold, Owen & McDermott, for appellee.
   John A. Fogleman, Justice.

This condemnation proceeding involves the taking of certain lots in Little Rock. Appellee Gussie Alman questioned the right of appellant to exercise the power of eminent domain and caused the transfer of the case to chancery court. That contention has now become unimportant. The chancellor heard four qualified expert witnesses called by appellee and two called by appellant on the value of the lands taken. The court found that the testimony of Lewis Block, one of appellee’s witnesses, was rather clear and specific on all points and that this appraisal fixed the value of the property at $114,335.08, and awarded that amount as compensation.

Appellant contends that the decision of the chancellor is against the preponderance of the evidence and is not supported by substantial evidence, that the value fixed by the chancellor was excessive and that Block erroneously added the value of certain improvements to the land value in arriving at his valuation of the property taken. We agree on the latter two points, but we are unable to say that the chancellor’s finding as to the land value fixed by Block is clearly against the preponderance of the evidence.

There is no substantial dispute as to the physical condition of the property, its size, location and the uses to which it was being put or might be put. The area of the property was 31,900 square feet.

Mr. Block has been engaged in the real estate business in Little Rock for about 46 years. In spite of a long familiarity with the property, he testified that he went all over it when appellee asked for an appraisal. He testified that the highest and best use of the property was for commercial and industrial purposes for a warehouse, wholesale business or manufacturing. For that use he fixed a land value of $3 per square foot or $95,700. He added to this land value $18,635.08 for improvements, consisting of residential rental property. As comparable sales, he considered sales made by his company, and did not check others because these seemed sufficient to him to establish market value and because of his knowledge and experience in real estate values in Little Rock. It was his opinion that one could not arrive at a fair market value of commercial and industrial property without considering the improvements on it.

Appellant questioned the comparability of the sales considered by Block, because they were located either on Broadway or east of it. Block testified, however, that the subject property was only one block off Broadway, which he said was one of the busiest streets in Little Rock, and one block off West Ninth, on which he said there was a tremendous amount of traffic. Jack Farris, another of appellee’s expert witnesses, testified that the highest and best use of the property was for purposes other than residential, mentioning distribution warehouses, retail business and garages as specific potential uses. He also found sales on Broadway to be fairly comparable, although he found no directly comparable sale in which the Housing Authority had not been involved.

Ralph Sprigg, retired real estate manager for the Kroger Company, now engaged as a real estate broker and property manager, valued the property at $103,675. Morris High, another real estate broker, who also bought and sold property for himself, valued the land at $110,000. He considered that the highest and best use of the property would be as an annex to Mount Holly Cemetery, across the street, and the next best for warehousing. These witnesses did not consider sales that appellant’s experts considered comparable. All of appellee’s expert witnesses, other than Block, stated that the present improvements on the property added nothing to its value for its highest and best use.

No useful purpose would be served by outlining the testimony of appellant’s expert witnesses, both of whom are under contract with the Housing Authority to perform specific appraisal duties. One of them fixed the value of the property at $51,000 and the other at $54,000. They considered the highest and best use to be for commercial purposes. They found no market value in the improvements in addition to the land value except for whatever salvage value there might be. One of them did not consider sales on Broadway comparable because of the heavier traffic concentration there.

We cannot say that the sales considered by appellant’s witnesses were more nearly comparable to the condemned property than those considered by appellee’s experts as a matter of law. Neither can we say that the chancellor’s finding Block’s testimony to carry the greatest weight is clearly against the preponderance of the evidence. We do find that Block included an impermissible item in his total value. The practice of intermingling of present values of residential improvements with land values based on a present highest and best use for commercial uses to arrive at present market value was condemned in Arkansas State Highway Commission v. Toffelmire, 247 Ark. 74, 444 S. W. 2d 241. In Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S. W. 2d 495, we said that a jury verdict based partly on commercial value of land taken and partially on testimony relating to the land’s value for residential púrposes would not be proper. Yet this is exactly the basis of the chancellor’s award. We do not mean to say that testimony as to the value of residential improvements on land should not be admitted when there is a fact question as to the highest and best use of the property or when the improvements are such that they enhance the market value of the property. See Arkansas State Highway Commission v. Brewer, 240 Ark. 390, 400 S. W. 2d 276; Arkansas State Highway Commission v. Wallace, 249 Ark. 303, 459 S. W. 2d 812; Arkansas State Highway Commission v. Richards, 229 Ark. 783, 318 S. W. 2d 605. But no witness, not even Block, testified that the buildings on this property would affect its market value for the agreed highest and best use.

Since the trial here is de novo and the error in the chancery court can be accurately evaluated in dollars and cents, we can correct that error by reducing the judgment awarded in the court’s decree. We modify the decree by reducing the award to $95,700, and affirm the decree as thus modified.


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    Robert L. MARSHALL v. STATE of Arkansas
    5571
    466 S. W. 2d 920
    Opinion delivered May 3, 1971
    [Rehearing denied June 7, 1971.]

      W. M. Herndon, for appellant.

      Ray Thornton, Attorney General; Ken Stoll, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This appeal by Robert L. Marshall from his conviction of the attempted burglary of the McSpadden Drug Store in North Little Rock is grounded upon his argument that the evidence was not sufficient to present a jury question. We think that it was.

The drug store was equipped with a burglar alarm system connected by direct line on the telephone system with speakers in the respective bedrooms of the McSpadden brothers, who owned the drug store. David McSpadden testified that he was awakened by sounds from the speaker at about 1:30 a.m,, January 8. His brother called the police. The two then proceeded to the store, arriving about 10 minutes after the sounds were first heard. When they arrived they found three police cars and three or four policemen at the scene. The police had taken into custody two persons, whom the McSpaddens could not identify, and were bringing them, handcuffed, around the building where the drug store was located toward one of the police cars, in which they were then placed and taken to the police station. Inspection revealed that the roof of the drug store had been cut from the outside and some of the decking broken.

The weather was quite cold, and some snow had fallen earlier. As David McSpadden recalled there was quite a bit of snow on the ground around the buildings but not on the streets, and the sidewalks were not covered with snow. There was a marquee on the front of the building over the sidewalk. A barber shop and a washateria were near the drug store building.

Traffic Patrolman Larry Dubose was patrolling about two blocks from the drug store when the incident was reported to him at about 1:30 a.m. He testified that he arrived at the drug store a minute or so later and proceeded to check the doors of the building and walked around to the back of it. By this time, three other police officers had arrived. He said he noticed more than one set of footprints in the snow leading up on the back of the store via a roof or a shed. According to him there was about one-half inch of snow in this area, and the footprints were clearly visible and freshly made. Dubose followed the footsteps up on top of the store building. He testified that he found three crowbars, a hammer, a small chisel, a screwdriver, an open knife, two saws and some rope. He observed footprints on the roof leading over to the side of the building. He turned the tools he found over to Officer McFarlin when he came down. At that time McFarlin and Officer Lange had appellant Marshall and a man named Tommy Lawson in their custody.

Officer Lange was only two or three minutes’ travel away when he received the call from the police department. He testified that, upon arrival, he saw Marshall and Lawson about 50 feet from the building walking westwardly away from it. Patrolman McFarlin received the call at about 1:58 a.m., and arrived shortly thereafter. He testified that he started checking the drug store doors, but that Dubose came to the front of the building and reported that this had already been done. According to McFarland, Dubose then went to the rear of the building and hollered that he had found footprints. McFarlin testified that he then proceeded around the building and observed Marshall and Lawson walking away in a westerly direction. They stopped when this officer commanded them to do so. He and Lange then took them into custody. They searched both suspects. Both officers testified that they found no knife or any weapon on either. McFarlin testified that they backtracked the footprints from the place these suspects were standing when arrested to the building and found that they terminated a few feet from the edge of the building. Lange testified that he saw Dubose with a knife. McFarlin said that Dubose handed him the knife and that he took it to police headquarters, where Marshall claimed it when he placed it between two piles of property of the two suspects. Lange corroborated the testimony that Marshall claimed the knife. Both these officers testified that an official report that Officer Mc-Farlin found the knife on top of the building was erroneous.

Marshall claimed that he had left his girl friend’s house about 2Zi blocks from the drug store only a few minutes before he was arrested, and stopped at the washateria to use a telephone. He testified that he was en route to the ice house to telephone for a cab when the officers called for him and Lawson to stop. His version was that no officers came to them, but that upon command they proceeded to the officers at the front corner of the drug store. He said that Officer McFarlin then searched him and took the knife from his person. He admitted previous convictions of larceny and possession of burglar tools.

This testimony, considered in the light most favorable to the state, was certainly sufficient circumstantial evidence to present a question of appellant’s guilt for jury determination. Appellant points out certain inconsistencies in the testimony (such as Lange’s statement that the footprints extended about 35 feet from the wall of the building and his statement that appellant and Lawson were apprehended about 50 feet from the building) and conflict of the officers’ testimony with the police department report with respect to the knife and alleged conflicts in their testimony about when, where and by whom it was found. Resolution of conflicts in the testimony was a jury function, which it has performed, so that we are bound. Boyette v. State, 250 Ark. 536, 465 S. W. 2d 901; Murchison v. State, 249 Ark. 861, 462 S. W. 2d 853.

Appellant argues that the circuit court erred in permitting the state to introduce circumstantial evidence of footprints in the snow without their being identified as those of appellant. We take the circumstantial evidence that appellant made one set of the footprints to be rather strong.

We find no error. The judgment is affirmed.