text:
    ALL-STATE SUPPLY, Inc. v. Alva Claude FISHER
    5-5966
    483 S.W. 2d 210
    Opinion delivered July 3, 1972.
    [Rehearing denied August 28, 1972.]

      Haley, Young, Bogará ir Gitchell, for appellant.

      Bob Dawson, for appellee.
   Lyle Brown, Justice.

Appellant All-State Supply, Inc., sought to enforce the provisions of an employment contract between it and appellee, Alva Claude Fisher. That contract prohibited Fisher from accepting any employment with any competing firm for a designated period. The trial court denied relief and All-State appeals. The single point for reversal is: “The restrictions imposed in clause twelve of the parties’ contract as to time and space and the sum stated as liquidated damages were reasonable and necessary for the protection of a legitimate business interest of appellant and should be enforced.”

Appellant, headquartered at Little Rock, is engaged in the sale, mostly to schools, of audio-visual equipment, closed circuit television, school supplies, furniture, and other school equipment. It does a statewide business, operating through outside salesmen who make bids on school needs. The 1971 sales were approximately $900,000, most all of which were made inside the State. When appellee was employed, May 1, 1967, a salesman’s contract was executed between the parties. Appellee bound himself not to engage in any business in Arkansas which would be in competition with appellant for a period of two years after termination for any reason. It was.also agreed that in the event of violation of that provision the appellee would pay to All-State $500 per month as liquidated damages. In March 1971 appellee submitted his resignation and went to work for Moser Manufacturing Co., a statewide competitor of appellant. All-State unsuccessfully sought to enforce the provisions of the non-employment agreement. The court held that no trade secrets were involved, that no unusual training was afforded appellee by appellant, and that the contract was against public policy.

Paul H. Power, president of All-State, is chief executive of the corporation and the majority stockholder. Power testified that it takes time — approximately two years for a new salesman to reach his potential; that he must become acquainted with the customers and their method of buying; that it takes approximately the same period of time to really learn the merchandise; and that it takes about two years for the pricing information, which is coded and kept confidential, to become antiquated. Power said the limitation covered the State because that is the territory in which All-State is active. The figure of $500 a month as liquidated damages, for twenty-four months, was the estimated loss that All-State would suffer during that period by the loss of an experienced salesman. He further testified that “Since Mr. Fisher (appellee) has left our employ and gone to work for Moser, Mr. Fisher has pretty well taken all of the jobs and we have not taken any job from .Moser with the exception of the University Medical Center. Prior to Mr. Fisher’s leaving All-State we underbid Moser on approximately fifty per cent of the jobs.”

David Broyles, sales manager for appellant, related the investment made in the salesmen. They are shown the products for sale and are instructed in the demonstration of the equipment. This is done inside the office and takes a matter of days; the profit markup (coded) is explained to the new salesman; then an experienced officer with All-State goes out in the field to guide the new salesman and to introduce him to the customers. He explained the origin of the price lists: “The price lists which are furnished to us by our exclusive manufacturers for whom we are distributors are not known throughout the industry in the State of Arkansas or by our competition. They are price sheets and if our competitors knew what our prices were, they would know what to bid to beat us”. As to appellee’s earning capacity with All-State, the witness said appellee collected over $17,000 in commissions in 1970.

Appellee was his only witness. He conceded that when he went to work for appellant he had no previous sales experience. He also admitted that he had to have some training but insisted that it was not intensive. He was taught by factory representatives on how to operate and demonstrate various pieces of equipment. He was rather indefinite about the extent of his training. He did not deny the extent of the training as related by Paul Power. He conceded that if All-State was receiving set prices from its manufacturers as exclusive distributor and that if All-State’s competitors knew those prices, it would give the competitor a decided advantage. He said that his present employer, Moser, operated throughout the entire State and in competition with All-State. He agreed that Moser keeps their prices confidential. He admitted that when he left All-State he took the knowledge of All-State’s code with him; in fact he said he took the catalog of one of All-State’s exclusive suppliers, General Equipment and Supply Company. He also made this candid admission: “When I submit bids against All-State now I take into consideration to a certain extent the knowledge I learned at All-State as to their exclusive manufacturer’s cost and profit rate.” He also stated that he was selling for Moser in about three-fourths of the State. In his defense he testified that he could not remember all the prices in All-State’s manufacturers’ catalogs. He álso said that periodically the costs of items change but he did not venture to estimate the time involved.

In determining the reasonableness of the restraint in a case of this nature the particular facts of each case must be examined. McLeod v. Meyer, 237 Ark. 173, 372 S.W. 2d 220 (1963). In passing on its reasonableness the most important factors are the time and the area. Orkin Exterminating Co. v. Murrell, 212 Ark. 449, 206 S.W. 2d 185 (1947). Also see Borden, Inc. v. Smith, 252 Ark. 295, 478 S.W. 2d 744, (April 10, 1972).

After carefully analyzing the abstracted testimony, the highlights of which we have recounted, we think the preponderance of the evidence shows the contract to be fair and reasonable from the standpoint of time, area and agreed liquidated damages. That conclusion is based principally upon the recited testimony of witnesses Power and Broyles, a greater portion of which is undisputed. As to the element of time, the evidence was that a salesman reaches his potential after some two years of experience and that it takes about that time for the confidential coding information to become antiquated. As to area, it is undisputed that appellant operates .statewide, and appellee is covering three-fourths of the State with the merchandise of All-State’s competitor. As to liquidated damages, it was testified that the monthly amount represented a fair estimate of the loss to appellant. Then to show the harm that was done appellant, it was undisputed that since appellee joined Moser he had underbid All-State on most of the jobs wherein they competed.

Appellant is entitled to recover from appellee $500 per month, up to twenty-four months, measured by the number of those months appellee is, and was, employed by Moser.

Reversed.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Dave ELLIOTT et al v. Frank ELLIOTT et al
    5-5801
    482 S.W. 2d 123
    Opinion delivered July 3, 1972

      M. C. Lewis Jr., U. A. Gentry and John E. Coates, for appellants.

      Hall, Tucker ér Lovell, for appellees.
   John A. Fogleman, Justice.

This case arises from a dispute between two factions of the Elliott family, ignited by discovery of oil on Texas lands. The appellants (defendants below) have classified themselves as the Dale Elliott faction and the appellees as the Frank Elliott faction. We will occasionally do likewise. Their ancestors, I. J. and Metta Elliott, acquired a large quantity of land, some of which was in Texas in Taylor and Ward Counties. The Ward County lands were owned by the maternal ancestor, who acquired them by inheritance. The Taylor County lands were community property of the maternal and paternal ancestors. The paternal ancestor predeceased his wife. In a family gathering shortly thereafter Metta Elliott expressed her desire that when a division of the estate was made after her death, those who acquired the Texas lands would agree that if oil was later discovered on these lands, the mineral rights would be divided between the two factions. After the death of the maternal ancestor, there was a family division of the property. The Taylor County land was conveyed to Frank Elliott and Vesta Elliott, husband and wife, who paid $11,000 for a warranty deed dated October 27, 1945. The grantors conveyed “all our undivided interest that we may have in and to” the lands. The recited consideration was $100. The Ward County land went to Mitt Elliott for a consideration. There was no reservation of mineral rights in either deed. Twenty-five of the Elliotts, twelve of whom were defendants in the trial court, signed the deed to Frank and Vesta Elliott. The grantors bound themselves, their heirs, executors and administrators to warrant and defend the premises to Frank and Vesta Elliott, their heirs and assigns, against every person claiming the same. Frank and Vesta Eliott conveyed an undivided one-third interest in the mineral rights in the Taylor County lands to their son, Thomas Frank.

Frank, Vesta and Thomas Frank Eliott instituted the action by bringing a suit for damages for the alleged wrongful attack on their title by a suit brought by appellants in Taylor County, Texas. The Frank Elliots based their claim upon allegations of breach of warranty, malicious prosecution and slander of title by appellants. They sought to recover their expenses in the successful defense of the Texas action and punitive damages. Appellants filed a demurrer and a general denial. A jury found for the plaintiffs (appellees) and assessed damages at $7,145.04. Judgment was entered against six of the twelve defendants, but a verdict was directed in favor of the other six.

Vesta Elliott, aged 77, who had been married to Frank Elliott for 49 years, testified that she had taught school for 14 years, 10 of which followed her marriage to Frank. She identified Reb, Arma and Mitt as brothers of Frank. She recalled buying the Taylor County land from the Elliott family in 1945. She said that she and her husband paid the other Elliott heirs $11,500 in cash. Mrs. Elliott said that some of her money, along with her husband’s, was used to make this purchase, and that some of the purchase price came from the sale of hogs, milk and wool to the production of which she had contributed. She stated that the purchase price was paid in portions to the grantors in the deed as they came by the Frank Elliott house to sign the deed. She claimed to have itemized statements showing the amount paid to each, which she thought were in the hands of her attorney. She testified that there was no agreement or conversation about an agreement to divide anything the land produced with any of the grantors in this deed, and that she and her husband were purchasing “clear title.”

Mrs. Vesta Elliott said that the Texas suit was instituted in 1969 after Dale (son of Mitt) and Reb Elliott had made demands upon her husband for one-half of the mineral rights in the Taylor County land. She said that her husband and son employed lawyers in Texas to defend the suit there and that payments due from an oil company had been held up for about a year because of the litigation. According to her, $8,000 to $8,500 was spent defending this lawsuit. She said that she had checks to verify these expenditures.

Frank Elliott was 87 years old when he testified. It was his recollection that the purchase price was $11,000. He agreed that his wife had helped earn the money used by working on the farm and that she made it a rule to save $1,000 per year. He said that a Benton lawyer and a Texas law firm were employed to defend the Texas lawsuit, but that Thomas Frank had looked after the lawsuit for himself and his parents.

Frank Elliott recited this version of the family discussion about the property:

Frank looked after the Ward County land for his mother from 1923 until she decided to divide it among her children. Oil was later discovered on the land she gave to her son Mitt, the father of Dale. The mother told Frank that she wanted him to divide some of the land that was left. They valued the Ward County land at $2,000 per acre and the remainder at $1,500 per acre. Nobody really wanted the Texas land. One of the children asked, “What if that land was to produce oil?" Mrs. Metta Elliott then said that whoever got that land could have it for $1,000 with the understanding that if it produced oil, a one-half interest was to be divided with the other children. But this wasn’t done. Mitt took this land, it produced oil and he sold off one-half of it. The deed from Frank’s and Mitt’s mother contained no reservation of oil and minerals. Mrs. Metta Elliott was talking about her own estate, when she made the answer to the question about striking oil.

Gertrude Williams is a sister of Frank, Reb, Arma and Arch Elliott. She testified that she signed a “disclaimer” dated September 22, 1945, agreeing to take $11,-000 within 80 days for 200 acres of land in Taylor County, Texas. The handwritten names of Frank, M. J., Arthur, Reb, Arma D., Arch, Arkie, Calvin, Odis, Harold, Luther and Leonard Elliott and of Idella Tarvin, on this document, all appeared to her to be their signatures. She said that neither Frank, Vesta nor Thomas Frank Elliott ever agreed to divide any interest in the oil rights in the Taylor County lands with her.

Reb Elliott also testified that Frank and Vesta and Thomas Frank Elliott never agreed, in his presence, to divide the oil royalties on the land.

Thomas Frank Elliott employed a Benton, Arkansas, law firm and an Abilene, Texas, firm to defend the action brought in Texas by appellants, or some of them. He itemized attorney’s fees and expenses in the successful defense of that suit at a total of $6,794.07. He also detailed expenses of himself and his father in that defense totalling $510. He said that the royalty payments held up amounted to $350.97. He admitted that the Frank Elliott faction had not called upon either of the appellants or any other person who signed the deed to his parents to defend the breach of warranty action in Texas.

R. M. Rutledge, a Texas attorney, represented the appellants in a suit against Frank, Vesta and Thomas Frank Elliott in Taylor County, Texas, in December 1969, to establish an equitable ownership in an undivided interest in oil, gas and minerals of the Taylor County lands. He said he was first consulted by Dale and Howard Elliott, who informed him of family history, furnished him with documents relating to a family property division, depositions of some witnesses in earlier litigation in Ward County, along with other written material. This attorney said he advised the appellants that he thought it would be possible to establish their ownership of an undivided interest in oil, gas and mineral production of the Taylor County land, recommended filing the suit and accepted employment on a contingent fee basis, when appellants preferred this arrangement over an alternate cash fee suggested by Rutledge. The case was tried but appellees prevailed. Rutledge was of the opinion that the cause of action was just, even though he had recommended that no appeal be taken because he felt there would be great difficulty in overturning the trial court’s decision. This lawyer stated that a lis pendens notice was filed, as normal Texas procedure, to prevent anyone from becoming a good faith purchaser of the lands for a valuable consideration without notice of the suit. He advised the Permian Corporation and Coastal States Gas Purchasing Company of the suit as a matter of routine. In prosecuting the case, Rutledge took the statements of the Dale Elliott faction made to him at face value.

Harold Elliott admitted signing the deed under which appellees claimed.

The circuit judge denied a directed verdict for appellants at the conclusion of the testimony on behalf of appellees insofar as appellees’ cause of action for breach of warranty was concerned, but granted such a verdict insofar as malicious prosecution and punitive damages were concerned. At the conclusion of all the evidence, the court directed a verdict in favor of all of the defendants except appellants. The appellants were those who both signed the deed to the Frank Elliotts and joined in the Texas suit. Appellants’ motion to dismiss and request for a directed verdict was denied.

Appellants argue that their filing of the Texas suit did not constitute a breach of their warranty under Texas law. We have concluded that they correctly contend that before.there can be any recovery for breach of warranty under Texas law, there must have been an eviction, a surrender of possession to one asserting a paramount title or a purchase of the paramount title asserted, but that one who remains in possession and successfully defends his title is not evicted, actually or constructively. Edward Schneider v. Lipscomb County National Farm Loan Assn., 146 Tex. 66, 202 S.W. 2d 832, 172 A.L.R. 1 (1947); Veteran’s Land Board v. J. R. Akers, 408 S.W. 2d 795 (Tex. Civ. App. 1966). Even if Arkansas, rather than Texas, law were applied, the result would be the same. Lammers v. American Southern Trust Company, 172 Ark. 1013, 291 S.W. 437.

We find, no support for appellees’ argument that the filing of the lis pendens notice constituted an eviction. The Texas statutes merely make the filing of a notice of pendency of a suit notice to all the world of the content of the notice and that the suit is pending. Articles 6640 — 6643, Vol. 19, Vernon’s Texas Civil Statutes. Such a notice is constructive notice of the pending suit but not constructive eviction. Its purpose is to maintain the status quo so that property will be subject to the jurisdiction of the court in whosever hands it may come. It does not establish any lien, or halve any application as between the parties, but gives effect to the rights ultimately established by a judgment in the case. Black v. Burd, 255 S.W. 2d 553 (Tex. Civ. App. 1953); Dice v. Bender, 383 Pa. 94, 117 A. 2d 725 (1955); McVay v. Tousley, 20 S.D. 258, 105 N.W. 932 (1905); Troyer v. Bank of DeQueen, 170 Ark. 703, 281 S.W. 14; Mitchell v. Federal Land Bank of St. Louis, 206 Ark. 253, 174 S.W. 2d 671; Balckwood v. Daivdson; 198 Ark. 1055, 132 S.W. 2d 799; Health Betterment Foundation v. Thomas, Admr., 225 Ark. 529, 283 S. W. 2d 863.

We are unable to find any eviction, either actual or constructive. Appellees argue, however, that if third parties had attacked their title, appellants would have been required to defend under their warranty, so they should bear the cost of defending against their own attack and that the recoverable costs include attorney’s fees. They do not favor us with any authorities on this subject. Even so, an eviction or unsuccessful defense would have been essential to recovery if third parties had attacked appellees’ title. See Annot., 105 A.L.R. 729, 731 (1936); 61 A.L.R. 10, 169 (1929). It appears that, under Texas law, attorney’s fees expended in defending the suit of a third party would not be allowable as a part of the damages for breach of warranty of title in the absence of an agreement to pay them. Turner v. Miller, 42 Tex. 418 (1875); 19 Am. Rep. 47; Adams v. Cox, 150 S.W. 1195 (Tex. Civ. App. 1912); Cates v Field, 85 S.W. 52 (Tex. Civ. App. 1905); Shook v. Laufer, 100 S.W. 1042 (Tex. Civ. App. 1907); Clark v. Mumford, 62 Tex. 531 (1884). We know of no authority for the recovery of such fees just because the covenantor asserted an adverse title in the absence of fraud or malice. Appellees argue that there was a malicious prosecution of the Texas action by appellants. We do not find substantial evidence to support this argument when the apparent good faith belief of the Dale Elliott faction that there was a reciprocal agreement among the parties as to sharing the mineral rights in all the Elliott lands in Texas is viewed in the light of the testimony of Texas attorney Rutherford, and the fact that Mitt Elliott had conveyed an interest in the oil royalties in the Ward County lands to Frank and other Elliott heirs after Frank had demanded that he do so and filed suit to enforce the demand.

Appellees also argue that they should be entitled to recover these expenses because some of those who joined in the Texas suit were not grantors in the deed, so it was appellants’ duty to defend against their suit. What we have just said with reference to the recovery of these attorney’s fees applies with equal force to this argument. We also note that attorney’s fees are not a recoverable element of damages in Texas in a suit for damages for the bringing of a groundless suit, even though it was brought with intent to harass. Salado College v. Davis, 47 Tex. 131 (1877).____

Appellees’ argument that Vesta, Thomas and Frank Elliott should recover their attorney’s fees because they were not parties to the alleged agreement also fails for the reasons just stated.

On cross-appeal, appellees contend that the trial court erroneously directed a verdict upon their causes of action for slander of title, wrongful interference with the contractual rights of appellees and punitive damages. They argue that these matters are governed by the law of Arkansas, not Texas. Even if they were, appellees could not prevail because there is no substantial evidence of malice on the part of appellants. Although malice may be inferred in an action for slander of title from the falsity of assertions made when they are known by the one making them to be false, one who has reasonable grounds to suppose himself possessed of a legal title to, or equity in, the lands involved which would enable him to maintain an action for a conveyance is not liable in damages for slander of title. Sinclair Refining Co. v. Jones, 188 Ark. 1075, 70 S.W. 2d 562. The action cannot be maintained if the claim was asserted by the defendant in the action in good faith, and if the act complained of was founded on probable cause or prompted by a reasonable belief, malice may not be inferred from a mistake of law honestly made. Lack of probable cause alone will not establish malice. The evidence must support the reasonable inference that the representation made was not only without legal justification or excuse, but that it was not innocently made. Hicks v. Early, 235 Ark. 251, 357 S.W. 2d 647. Malice is also a necessary element of a cause of action for wrongful interference with the contractual rights and relationships of another. Mason v. Funderburk, 247 Ark. 521, 446 S.W. 2d 543. Of course, if there is no cause of action for want of evidence of malice, punitive damages cannot be recovered. We agree with the trial court that there was no evidence of malice for the reasons earlier stated.

The judgment is reversed and the cause dismissed.

      Section 6641 was repealed by Acts 1971, 62d Leg., P. 2722, Ch. 886, effective June 14, 1971, relating to the microfilming of records by counties.

      It may well be that the appellants were really in no different position than those defendants who were not signers of the deed. These persons all seem to have been heirs of the warrantors who would be liable on their respective ancestors’ warranty to the extent of the assets which descended to the respective heirs. Young v. Moore, 110 S.W. 548 (Tex. Civ. App. 1908); Jones v. Franklin, 30 Ark. 631. See also, McClure v. Dee, 115 Iowa 546, 88 N. W. 1093 (1902).


text:
    James Edward HONAKER v. STATE of Arkansas
    5733
    482 S.W. 2d 111
    Opinion delivered July 3, 1972

      Benny E. Swindell, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant Honaker entered a plea of guilty on May 19, 1970, in four separate cases involving charges of kidnapping, grand larceny and armed robbery. He was sentenced to two 15-year terms and two 10-year terms with all terms to run concurrently, and a requirement that he serve a minimum of five years before becoming eligible for parole. He was represented at the time by appointed counsel Edward H. Patterson, a lawyer with 46 years of experience. On August 26, 1971, Honaker filed a motion to vacate his sentence under Criminal Procedure Rule 1. He alleged that he was denied effective assistance of counsel, that his plea of guilty was involuntary, and that he was denied due process by having been placed in an “illegal” lineup without having the assistance of counsel. The circuit court appointed Patterson and Benny E. Swindell to represent Honaker in the postconviction proceeding. This appeal and all of the postconviction proceedings in appellant’s behalf were actually conducted by Swindell, because of the necessity for Patterson’s testifying at the hearing. This appeal results from the denial of the motion. Appellant presents four points for reversal. As he states them they are:

1. That at the time of appellant’s initial arrest and confinement he was not represented by counsel and was not informed of his rights to such representation or his right to assignment of counsel, and that at no time did appellant waive his rights to the assignment of counsel or to be represented by counsel.
2. That appellant’s guilty plea was entered through deception and coercion by the prosecuting attorney, the judge and appellant’s court-appointed attorney in violation of his right under the Sixth Amendment to the U. S. Constitution and that he was further denied the effective assistance of counsel and was therefore denied due process of law as guaranteed by the Fourteenth Amendment.
3. That appellant was arrested, tried, appointed counsel and forced to plead guilty within a four-day period.
4. That appellant was placed in an illegal lineup that consisted of five or six college students approximately 20 years of age and that appellant did not have counsel to represent him at that critical stage of the proceedings against him.

We take these to relate either to his allegation of denial of effective counsel or to the assertion that his plea of guilty was involuntary. The circuit court found that the sentences imposed were not in violation of the Constitution of Arkansas or of the United States Constitution and that there was no basis in law or fact for vacating the sentences imposed. We find no error in the court’s findings.

Honaker testified that he was arrested in Oklahoma and returned to Arkansas by the Sheriff of Johnson County, and that he was neither represented by counsel nor advised of his rights until Patterson was appointed as his attorney soon after the sheriff returned him to Johnson County and put him in jail there. He admitted that he was not questioned by any officer during this time. Honaker stated that soon after he was placed in the jail cell Patterson came there and advised him of the appointment by the court and, on that evening or the next morning, of the charges, when he asked to which of them Honaker desired to enter a guilty plea. Honaker’s version is that, in spite of his statement that he did not want to plead guilty to any of the charges, Patterson stated that he surely must be guilty of some of them and that the sheriff would recommend a seven-year sentence. Later, Honaker said, Patterson returned and stated that the sheriff would not agree to a seven-year sentence but would agree to a 10-year term. Still later, said Honaker, Patterson advised that the circuit judge would agree to accept his guilty plea and impose a 21-year sentence. It was then, according to Honaker, that he consented to Patterson’s entering a guilty plea conditioned upon a 15-year sentence. Appellant testified that he did not see his appointed counsel over three times during the four days he was in jail at Clarksville before his plea of guilty and that he never discussed his case with his lawyer, and that Patterson advised him, not about his defense but, only that it would be better to plead guilty and get off with the least term possible. Honaker specifically denied that he ever admitted his guilt of the charges to his attorney or asked Patterson to work out the best “setup” possible for him.

Patterson, on the other hand, said that he and Honaker did discuss getting as light a sentence as possible, and that Honaker never stated or indicated that he was not guilty of the offenses. Patterson’s version is that he was in almost continuous negotiation with a representative of the prosecuting attorney’s office, but had difficulty in bargaining because the prosecution was adamant in insisting upon disposing of the charges by trial. Patterson added that he advised Honaker of his lack of success and advised him of his rights. It was then, according to Patterson, that Honaker indicated that he did not want to go to trial, which had been set at 2:00 p.m. on the same day. It was about 20 minutes before the time for trial when Patterson advised Honaker of the best offer he had been able to negotiate. Patterson said that he was familiar with the facts in the case, knew about the local witnesses, discussed the facts with Honaker to some extent and consulted with his client on more than one occasion.

Honaker stated that his decision to plead guilty was based upon advice of his court-appointed attorney to do so, and that he said to the attorney, “You were raised with these people. You have dropped me anyway and there is no use taking further chances.” Honaker admitted that he had not made any of the things of which he now complains known to the trial court when his plea of guilty was entered, even though he had the opportunity to do so. He volunteered the statement that he also had the opportunity “to get more time if I fought it.”

There were six people in the lineup of which appellant complains. Patterson, who was present, testified, without being contradicted, that, after advising Honaker that all five witnesses who viewed the lineup identified him, he asked Honaker what he wanted to do. Honaker’s claim of prejudice is based upon his testimony that he was 28 years of age and had tattoos on his arms, while the others were college students, aged 20 to 25 years, without tattoos, and that when the lineup was being arranged, he was conducted by a police officer past one of the witnesses who was standing in a hall. He also stated that he had previously been in the service station of one of the witnesses quite a few times.

The burden was on the appellant to show that his petition had merit. Johnson v. State, 249 Ark. 268, 459 S.W. 2d 56. When we accord to the trial court’s findings the weight and respect to which they are entitled because of the trial judge’s superior opportunity to evaluate the oral testimony, we are unable to say that they are inadequately supported, regardless of the scales on which the evidence is placed. There is no evidence that Patterson had any interest in the matter other than that of representing his client, that the attorney was inadequately informed about the case, that he failed to advise Honaker of his rights or of the actual situation confronting him or that he disregarded any request made of him by Honaker. The mere fact that only four days elapsed between appointment of counsel and the entry of the plea is not a sufficient basis for finding that counsel’s assistance was ineffective or that appellant was coerced to enter a plea of guilty. See Read v. State, 242 Ark. 821, 415 S.W. 2d 560; Blake v. State, 244 Ark. 37, 423 S.W. 2d 544. He never indicated to anyone that he needed more time to prepare a defense, to consult with the attorney appointed or any other or to make a decision as to his plea. He has not yet suggested what might have been done that was not done. Furthermore, appellant has not explained his failure to protest to the trial court, even though he admitted he had an opportunity to do so and even though he testified at the postconviction hearing about his statements to Patterson indicating that he felt the risks of trial were increased by his being represented by Patterson.

Appellant testified that the lineup procedure had nothing to do with his plea of guilty, but his attorney now argues that it actually contributed to making the plea involuntary. A photograph of the lineup is in the record of the hearing. Although tattoo marks are not visible in the photograph, we do not believe that due process requires that lineups be composed only of people whose physical appearances are so similar in minute detail that peculiar identifying features cannot be considered in identification. The fact that one identifying witness saw appellant in custody before the lineup might be of some significance if that witness had been the only one to identify Honaker. We find no merit in the suggestion that the lineup was unconstitutionally conducted because one of the identifying witnesses had seen appellant on occasions prior to the alleged offenses. An examination of the photograph exhibited in evidence does not reveal a composition that would make his selection over others by an uncertain witness more probable. Two persons in the photograph appear to be wearing T shirts. There is nothing in the record to show that the perpetrator of the crimes charged was at the time they were committed wearing this kind of upper garment, or had tattooed arms.

There was adequate evidentiary basis for a finding by the trial court that appellant’s plea of guilty was simply the result of plea bargaining of the type we held legitimate in Myers v. State, 252 Ark. 367, 479 S.W. 2d 238. We do not find sufficient basis for saying that appellant met his burden or that the fact questions were not correctly decided by the circuit court and, therefore, affirm the judgment.


author: J. Fred Jones Justice.

text:
    CONTINENTAL INSURANCE COMPANIES v. ESTATE of Andrew David ROWAN Jr.
    5-5956
    482 S.W. 2d 102
    Opinion Delivered July 3, 1972
    [As Amended on Denial of Rehearing September 25, 1972.]

      Dickey, Dickey ér Drake, for appellant.

      George Howard Jr., for appellee.
   J. Fred Jones Justice.

This is an appeal by Continental Insurance Companies from an order of the Jefferson County Probate Court ordering Mrs. Florida Rowan, prior guardian of the estate of Andrew David Rowan, Jr., to account to L. E. Henson, guardian in succession of said estate, for the sum of $2,731.40 received by Mrs. Rowan as guardian, and further ordering Mrs. Rowan to pay over, to said guardian in succession the sum of $2,731.40 belonging to the estate of said minor within a reasonable length of time.

This is a second appeal of this case and the record on this appeal is about as mixed up as in the former appeal. Part of the difficulty stems from the fact that the first appeal by Continental was from á judgment prematurely rendered against it on a guardian’s bond before the liability of the guardian had been determined, and the present appeal by Continental is simply in anticipation that a judgment may be rendered against it on the guardianship bond.

In the first appeal, Continental Insurance Companies v. Estate of Andrew David Rowan, Jr., a Minor, 250 Ark. 724, 466 S. W. 2d 942, Mrs. Rowan had been appointed guardian of the estate of her minor son and had executed a guardian’s bond in the amount of $9,000 with Continental Insurance Companies as surety. Thereafter the probate court on its own motion removed Mrs. Rowan as guardian because of her failure to file an inventory of the assets of the estate, and the court appointed Mr. Henson as guardian in succession, whereupon Mr. Henson filed a motion for judgment against Continental in the amount of whatever funds Mrs. Rowan had received as guardian and failed to report or account for. Continental resisted the motion on the ground that the principal’s liability should first be determined before the entry of any judgment against the surety. We agreed with Continental and remanded the case for further proceedings.

The record now before us leaves much to be desired but it appears from the entire record that Continental is attempting to avoid the possibility of a judgment against it by avoiding a judgment against Mrs. Rowan. The background facts as we gather them from the entire record, indicate that Andrew David Rowan, Sr., the deceased husband of Florida Rowan and the father of Andrew David Rowan, Jr., left some life insurance policies at his death and in at least one of them, in the amount of $2,731.40, Andrew David Rowan, Jr. was the named beneficiary. Mrs. Rowan was appointed personal representative of the decedent as well as guardian of the estate of her minor son who was then 18 years of age. Attorney George Howard, Jr. represented Mrs. Rowan as administratrix of the decedent’s estate as well as guardian of her son’s estate. It appears that an administratrix’s account was opened in a local Pine Bluff bank and that some of decedent’s estate funds were collected and deposited therein with attorney Howard’s co-signature required on checks of withdrawal.

Mrs. Rowan is a professional school teacher and spends most of her summer vacations away from her home in Pine Bluff while attending college refresher courses. It appears that while she was attending college in Russell-ville, Arkansas, she received the proceeds from the above mentioned insurance policy in a check made payable to her as guardian of the estate of young Rowan. Instead of advising or counseling with attorney Howard or the court, and instead of opening a guardianship account in a bank and depositing the insurance money therein, both she and young Rowan endorsed the check and she cashed it. She apparently mingled the proceeds from the insurance with her own funds and with young Rowan’s knowledge and consent used most of the money in making a downpayment on the purchase of a home, in which she took title in her own name and subsequently lost through a mortgage foreclosure, and in liquidating some accounts owed by her mother and a cousin.

Apparently when Mrs. Rowan was finally made to realize that she had no personal right to, or interest in, the guardianship funds of her ward, her own financial resources were exhausted and instead of rendering a guardianship report of the exact amount she received as guardian and the exact nature and amounts of the disbursements, she apparently confused her personal rights as mother of her son with her legal responsibilities) as guardian of his estate and she failed and refused to render an accounting at all. Finally, the probate court on its own motion, ordered Mrs. Rowan’s removal as guardian and appointed L. E. Henson as guardian in succession. Mr. Howard continued to serve as attorney for Mr. Henson.

Upon remand to the trial court following the former appeal, Mr. Henson filed his petition for an order requiring Mrs. Rowan to file her settlement or accounting of her administration of her ward’s estate and for an order requiring Mrs. Rowan to pay over and deliver to the guardian in succession the funds or assets found to be due. Continental was given notice of a hearing on this petition and Continental filed its own petition alleging that the ward, Andrew David Rowan, Jr., had become 21 years of age and was a necessary party to the proceedings. By amendment to its petition Continental alleged that since attaining his majority Andrew David Rowan, Jr. had disclaimed any interest in the funds used by his mother and disclaimed any desire to recover judgment against his mother, the former guardian of his estate. But in the alternative, Continental prayed that in the event a judgment should be rendered against it on Mrs. Rowan’s bond, that it have judgment over against Mrs. Rowan in the identical amount. Mrs. Rowan and Andrew David Rowan, Jr. signed this amendment to Continental’s motion under statement as follows:

“Service accepted by us in open court on the 27th day of August, 1971.”

Apparently the trial court accepted the Rowans’ signatures on the amendment to Continental’s motion as their entry of appearance for all purposes and considered them as joining in the amended motion ot Continental while acting as their own attorneys.

Mrs. Rowan as well as Andrew David, Jr. testified at the hearing on the petition and motion, and young Rowan stated on inquiry from the court, that he was appearing as his own counsel. It would serve no useful purpose to set out in detail the conflicting testimony of Mrs. Rowan. While she testified that she actually turned over the sum of $751.40 of the insurance proceeds to her son while he was away in college, we gather from her entire testimony that she simply did not know exactly how much of the insurance proceeds was sent to her son, nor what portion of the funds was used for his direct benefit and what portion was used for other purposes. The record is rather clear that Mrs. Rowan and her son enjoyed a rather close mother and son relationship and that she simply considered the funds collected for her son on the insurance policy as their funds to be used as they saw fit, and considered that it was all used, together with funds of her own, for the use and benefit of her ward. Mrs. Rowan testified that no one ever told her that it was necessary to keep separate the guardianship funds from her own funds and to obtain approval of the court for its disbursement. This testimony is contradicted by statements of the trial judge as to the difficulties encountered in trying to get Mrs. Rowan to render an accounting. The record however, or the lack of it, indicates that Mrs. Rowan collected and used the insurance money before the probate judge or anyone else besides Mrs. Rowan and her ward knew it had been collected from the insurance company.

It is evident from the record in this case that young Rowan is above the average in intelligence and there is no evidence that Mrs. Rowan has not been successful in directing his interests toward a good education. He testified that he is attending the University of Nebraska on a National Merit Scholarship and is a senior in the top quarter of his class. He testified that upon graduation from the University of Nebraska he plans to study in Europe where his further education will be financed by his mother. Young Rowan apparently recognizes and appreciates the difficulties his mother has placed herself in by not seeking the advice of counsel or instructions from the court upon her appointment as guardian; or in not following the advice she did receive from the attorney and instructions from the court in the performance of her duties as guardian.

As the record now stands, it is clear from young Rowan’s testimony that since attaining his majority he accepts the expenditure of his funds by his mother as being made for his use and benefit and has ratified his mother’s action in connection therewith. It is also clear that he does not desire his guardian in succession to pursue the collection from his mother, for his use and benefit, the funds his mother has collected as his guardian.

The record before us is vague as to what claims, if any, have been filed or will be filed against the estate of young Rowan. The record is also void of any indication as to what duties are still required of the guardian in succession except to collect from Mrs. Rowan and pay the court costs, together with the attorney’s fee pertaining to the guardianship, which cost has not been ascertained and which attorney’s fee has not been separated from the fees paid and payable in connection with the administration of the decedent’s estate.

There is some indication in the record, primarily from the statement of the probate judge, that there may be additional insurance policies involved in the guardianship beside the one for $2,731.40 collected by Mrs. Rowan. The judge observed from the bench that from the original petition (which is not before us in this case), young Rowan had $9,000. coming to him from insurance policies and that the court had mentioned the matter to Mr. Howard quite frequently. Mrs. Rowan testified that she delivered all of the insurance policies to the court. The probate judge stated from the bench that he had turned the policies over to attorney Howard with directions to determine whether collections had been made on them.

It may be that the guardian in succession is still attempting to collect oh these insurance policies, but be that as it may, young Rowan testified at length under questioning by the court as well as the attorneys and it was well established by his testimony that he is now 22 yéars of age and does not desire that the guardian in succession continue in his attempts to collect funds for his benefit from Mrs. Rowan. See Dunbar v. Cooke, listed in 201 Ark. 1185, and reported in 147 S. W. 2d 337; Dale v. Dale, 134 Ark. 61, 203 S. W. 258. See also Robinson v. Hammons, 228 Ark. 329, 307 S. W. 2d 857.

Under Ark. Stat. Ann. § 57-643 (Repl. 1971) pertaining to termination of guardianship, subsection b provides:

“A guardianship may be terminated by court order after such notice as the court may require:
(1) If the guardianship was solely because of the ward’s minority, and the ward attains his majority . . .but if the court finds upon a proper showing by substantial competent evidence that it is in the best interest of the. ward that the guardianship be continued after the ward reaches majority, the court may order the guardianship to continue until such time as it may be terminated by order of the court.
# # #
c. ‘ When a guardianship terminates otherwise than by the. death of the ward, the powers of the guardian cease, except that a guardian of the estate may make disbursements for claims that are or may be allowed by the court, for liabilities already properly incurred for the estate or for the ward, and for expenses of administration. ...”

The record before us is void as to any showing that it is in the best interest of young Rowan that the guardianship of his estate be continued or as'to the existence or extent of liabilities of the estate, so we are unable to determine why the probate court did not ascertain from Mr. Rowan, Jr. whether he desired a discharge of the guardian in succession and to take over any remaining assets of his estate, to the end that the guardianship could be terminated and expenses stopped.

It is apparent from the record before us that young Rowan was pushed to the front in this case in a very awkward manner by his mother’s bonding company but nevertheless he testified without contradiction that he has been 21 years of age for almost a year; that he ratifies the acts of his mother in the use of his funds and does not want to pursue the collection of any amount from her. The primary purpose in a guardianship for a minor’s estate is to preserve and protect the assets of his estate during his minority and is not to educate or punish a difficult guardian after the primary purpose of the guardianship ceases.

From the record now before us we are of the opinion that the probate court should have ascertained and approved the legitimate claims, if any, against the guardianship estate of young Rowan, including attorney’s fees and court costs. If there are money assets belonging to young Rowan still in the hands of the guardian in succession in sufficient amount to pay all such claims, they should be paid out of such assets, and any balance should be paid to young Rowan and the guardianship closed. If there is not such amount in the hands of the guardian in succession, then Mrs. Rowan should be ordered to pay such amount by a definite date fixed by the court. If such amount be not paid within such time, then a judgment should be rendered against Mrs. Rowan and her bonding company only for the amount of such claims, including legitimate costs and attorney’s fees incident to the guardianship.

Reversed and remanded with instructions to proceed in a manner not inconsistent with this opinion.

Reversed and remanded.


author: J. Fred Jones, Justice.

text:
    Joseph D. GIBSON v. STATE of Arkansas
    5727
    482 S.W. 2d 98
    Opinion delivered July 3, 1972

      Eugene Coffelt, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Joseph D. Gibson and A. C. Thrasher were convicted in the Benton County Circuit Court on the charges of burglary and grand larceny. They were sentenced to a minimum of one year on the charge of grand larceny and two years on the charge of burglary, the sentences to run concurrently. The sentence of A. C. Thrasher was suspended conditioned on good behavior and Joseph D. Gibson has appealed. He relies on the following points for reversal.

“The closing argument of the prosecuting attorney contains prejudicial remarks and contains reference to facts not contained in the record.
The lower court erred in allowing the testimony of Bill Vault when his name was not furnished by the prosecuting attorney as a witness in his response to the motion for a bill of particulars.
The form of the verdict submitted to the jury was improper.”

The facts as gathered from the evidence of record and as abstracted by the state are to the effect that Mr. Bill Rutherford, an employee of Tatum Motor Company, drove his pickup truck to work at the Tatum Motor Company near Siloam Springs in Benton County. At the close of the working day on May 1, 1971, Rutherford went with his wife in her automobile to visit relatives and he left his pickup truck parked in front of the Tatum Motor Company office. Upon concluding the social visit after dark, he returned with his wife to the office building for the purpose of obtaining his pickup truck and driving it home and he found that the adding machine from the Tatum Motor Company office had been removed from the office and placed in the back of his pickup truck. He noticed that the door to the company office had been opened and he positively identified Thrasher attempting to hide behind the wheel of a nearby tractor. He said that when he accosted Thrasher and inquired as to what he was doing there, Thrasher ran east toward Cobbs Hatchery which was about 200 yards distance, and a second individual, whom he identified as Gibson, came out from under a nearby trailer and also ran toward the hatchery. Upon further investigation Mr. Rutherford found that the company office door had been pried open; that some wires had been removed from the trailer under which Gibson was hiding and that the wires had been used in wiring around the ignition switch on his pickup truck in which the adding machine was found. Mr. Rutherford called the police officers and Gibson and Thrasher were apprehended in their automobile parked on the hatchery parking lot.

The evidence was to the effect that the battery on the automobile occupied by Gibson and Thrasher had run down and would not start the motor. It had been raining on the night in question and Gibson’s and Thrasher’s clothes were wet from the waist down. According to Rutherford and the arresting officers, both Thrasher and Gibson ran through tall wet fescue grass when leaving the scene of the burglary and fescue or grass seed were clinging to Gibson’s wet trouser legs.

Mr. Thrasher testified in his and Gibson’s defense. He testified that he and Gibson were brothers and lived in Conway, Arkansas. He said that they had been in Kansas City and were on their way home via Gravette on the night of May 1, 1971, and that prior to reaching the parking lot where they were apprehended, they were having alternator trouble on their automobile and the battery had run completely down. He said that when they approached the intersection in the highway adjacent to the hatchery parking lot where they were apprehended, the automobile completely stopped running; that it was raining hard and they got out of the automobile and pushed the vehicle from the highway into the parking lot and in doing so got soaking wet. He said that they decided to wait until morning to get their battery recharged; that after parking in the hatchery parking lot they smoked a cigarette, talked a little while and then went to sleep. He said that they were asleep when they were aroused by the officers and that they knew nothing about a burglary or larceny committed at the Tatum Motor Company. He denied that he peered from behind a tractor wheel and tire at Mr. Rutherford and denied that he knew anything at all about the burglary or that he and Gibson had anything at all to do with it.

We find no merit to appellant’s first point. Mr. Rutherford testified that both the accused ran through some high and wet fescue grass in leaving the scene of the burglary and the arresting officers testified that a trail led through some high fescue grass from the scene of the burglary toward the hatchery parking lot. As above stated, Thrasher explained their wet clothing by the fact that they had to push the automobile from the highway into the parking lot while it was raining. The officers testified that their clothes were not only wet from the waist down but had grass seed clinging to the wet clothes. In his argument to the jury the prosecuting attorney pointed out the testimony for the state and then reminding the jury of Thrasher’s testimony stated:

“But there’s nothing to back up his story. There’s nothing to say how did he get so wet from the knees down. How did Gibson get fescue seed on his pants? They were there. They committed the crime, and therefore I ask you as members of this jury panel to return a verdict of guilty and fix appropriate sentence.
jj. jf. TP TP Tp
Mr. Coffelt doesn’t deny the seed on the pants. It was never raised. No, it’s uncontroverted. He doesn’t raise it as a defense argument either, because it cannot be denied. The seeds were there. They were wet. They were fresh. And that fescue was growing in that field over there on the other side of Tatum Motor Company. Mr. Gibson was there. Mr. Thrasher was there. They’re guilty beyond a reasonable doubt.”

In Crow v. State, 190 Ark. 222, 79 S.W. 2d 75, we said:

“It has long been established doctrine in this State that a wide range of discretion is allowed circuit judges in dealing with the arguments of counsel before juries; this because they can best determine at the time the effect of unwarranted arguments. True, this discretion is not an arbitrary one, but may be reviewed in its exercise if abused.”

In Shank v. State, 189 Ark. 243, 72 S.W. 2d 519, we distinguished such statements as : “He is guilty. I know it, and you know it, and the defendant knows it,” from such statements as in Hughes v. State, 154 Ark. 621, 243 S.W. 70, and Sanders v. State, 175 Ark. 61, 296 S.W. 70, where the prosecuting attorney stated that the defendant was guilty, because he (the prosecuting attorney) had information that no one else had.

As to appellant’s second point, Mr. Rutherford was unable to testify positively as to the value of the adding machine taken from the building and the appellant objected to testimony on this point from any witness other than witnesses whose names had been furnished to the appellant in response to the appellant’s motion for a bill of particulars. The trial court overruled the motion on the basis that the motion for a bill of particulars cannot be used as a discovery vehicle, and for the further reason that the court was of the opinion the defendant was not surprised or prejudiced by allowing proof by an additional witness as to the value of the item allegedly taken.

As to the procedure on this point, the state called Mr. W. C. “Bill” Vault, the general manager of Tatum Motor Company, who described the adding machine and testified that the company purchased the machine approximately six months previously for $100, and that as of May 1, 1971, it was still worth $100. Although the appellant objected generally to anyone testifying as to the value of the machine whose name had not been furnished to him in advance, he made no direct objection to Mr. Vault’s testimony that the machine was purchased for $100 and was worth approximately that much at the time the testimony was elicited from Mr. Vault. When Mr. Vault was asked the second time what the machine was worth as of May 1, the appellant objected because proper foundation had not been laid and his objection was overruled. The failure by the state to supply a defendant with the names of its witnesses does not affect the validity of the trial unless the accused can show in some way he had been misled to his prejudice and has had no opportunity to meet the testimony given by the witness. See Lomax v. State, 248 Ark. 534, 452 S.W. 2d 646; Thomas v. State, 161 Ark. 644, 257 S.W. 376. Although the appellant argues that he was surprised by this testimony, he made no motion for a continuance. See Lomax v. State, supra.

The appellant also contends that the prosecuting attorney’s closing remarks were prejudicial when he argued that investigating Officer James Pearson testified:

“. . .that he went out and looked across this field which he could see the path that went along this chain-link fence on the west side of the property. He could see how the path went behind the property and across Highway 59 and in a direct line up to the parking lot of Cobb’s Hatchery.”
(appellant’s emphasis).

What the witness actually testified to on redirect examination was:

". . .there was grass knocked down immediately over the fence and then it headed east and I didn’t walk back through on across the field.
Q. Headed east towards where?
A. Cobbs Hatchery.”

On recross examination this witness testified that the trail led also toward the filling station and the highway.

In Adams v. State, 176 Ark. 916, 5 S.W. 2d 946, we said:

“. . .this court does not reverse for the mere expression of opinion of counsel in their argument before juries, unless so flagrant as to arouse passion and prejudice, made for that purpose, and necessarily having that effect.”

And in Willis v. State, 220 Ark. 965, 251 S.W. 2d 816, we said:

“It is perfectly proper for counsel to argue all inferences reasonably deducible from the evidence.”

In the case at bar, we are of the opinion that the evidence justified the argument made by the prosecuting attorney.

The appellant’s last contention is that the forms of verdict submitted to the jury were improper. Both defendants were joined in the trial of this case and the forms of the verdict were:

“We, the jury, find the defendants, A. C. Thrasher and Joseph D. Gibson, guilty of burglary and fix their punishment at---.
We, the jury, find the defendants, A. C. Thrasher and Joseph D. Gibson, not guilty of burglary.
We, the jury, find the defendants, A. C. Thrasher and Joseph D. Gibson, guilty of grand larceny and fix their punishment at---.
We, the jury, find the defendants, A. C. Threasher and Joseph D. Gibson, not guilty of grand larceny.”

We find no merit in the appellant’s contention on this point. Both defendants were jointly charged with burglary and grand larceny arising out of the same act. They were being tried together and all the evidence applied to one of them as forcefully as it applied to the other. The appellant did not object to the forms of the verdict and did not make known to the court what action he desired to court to take in connection with the forms of verdict.

The judgment is affirmed.


text:
    Michael D. CULLENS v. STATE of Arkansas
    5731
    482 S.W. 2d 95
    Opinion delivered July 3, 1972

      Stephen K. Wood, for appellant.

      Ray Thornton, Atty. Gen., by: Jimmy D. Patton, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This is an appeal by Michael D. Cullens from an order of the Crittenden County Circuit Court denying his petition for post-conviction relief under our Criminal Procedure Rule No. 1.

On February 2, 1971, Cullens was charged on information filed by the prosecuting attorney in Crittenden County, Arkansas, with the crimes of burglary and grand larceny, and possession of stolen property. The state’s attorney also filed petitions for the revocation of five previously suspended sentences. On September 20, 1971, the appellant entered pleas of guilty on four counts of possession of stolen property and to the charge of burglary and grand larceny. Through the process of pléa bargaining, one of the five petitions for revocation of the suspended sentences was granted and the state withdrew its petitions to revoke in the remaining four cases. Appellant was sentenced to 10 years in the penitentiary on each of the possession charges and on the revocation of suspended sentence with the sentences to run concurrently. He was also sentenced to a term of 21 years on the burglary and grand larceny charges, but these sentences were suspended during good behavior.

Subsequent to the appellant’s pleas and sentencing, he filed a motion for post-conviction relief pursuant to our Criminal Procedure Rule No. 1; and on January 18, 1972, the trial court, after examination of the appellant’s motion and the transcript of the proceedings at the time of accepting the pleas of guilty, denied appellant’s motion for post-conviction relief.

No hearing was had on the motion for post-conviction relief and it appears that the trial court disposed of the appellant’s motion under subsection (c) of our Criminal Procedure Rule No. 1, which reads as follows:

“If the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.” (Emphasis added).

When the guilty pleas were entered and accepted, the trial court did a commendable job in protecting his record against subsequent attack as to advising the appellant of his rights and of the possible penalties involved in the event he should waive his rights to a jury trial. The trial court addressed the appellant with the following questions and received the following answers:

“THE COURT: You understand what these charges are and what the penalties are, ranging anywhere from one to twenty-one years and two to twenty-one years in each of the various offenses?
DEFENDANT CULLENS: Yes, sir.
THE COURT: Other than the negotiated pleas, were there any other promises or inducement made to get you to plead guilty?
DEFENDANT CULLENS: No, sir.
THE COURT: Were there any threats made against you, coercion, force or threats of a longer sentence made if you did not enter your pleas as shown here?
DEFENDANT CULLENS: No, sir.
THE COURT: And you are entering your pleas of guilty to these cases because you are in fact guilty, as I understand it?
DEFENDANT CULLENS: Yes, sir.”

Of course, in his "Motion to Vacate Sentence Under Criminal Procedure Rule No. 1,” the appellant now alleges matters that he was not questioned on at the time of his pleas of guilty were accepted after setting out that his pleas of guilty were entirely voluntary and in strict violation of his constitutional rights under the Arkansas Constitution and the sixth, eighth and fourteenth amendments to the United States Constitution, the appellant now states as follows:

“That at the time of my initial arrest and confinement I was not represented by counsel and was not informed of any of my rights to such representation or to my right to assignment of counsel. That I was not aware of my constitutional rights to the assignment of counsel or to be represented by counsel.
That I was denied the effective assistance of counsel because my total contact with my retained attorney, prior to my plea of guilty, consisted of a mere ten-minute interview, and my retained attorney knew little, if anything, about my case pending in the Crittenden County Circuit Court. I had several possibilities of defense but my attorney failed to suggest or explore any of them, and, therefore, denied me the effective assistance of counsel as guaranteed to me by the Sixth and Fourteenth Amendments to the United States Constitution.
That upon information and belief, the trial prosecutor and defense counsel improperly overbore me by telling me if I did not plead guilty to the aforestated crime, I would receive a more severe sentence and would further be charged and convicted as an habitual criminal.
Because of the above stated threats I was placed in such fear I was unable to adequately confer and consult with my retained counsel, due to the undue pressure brought to bear upon me by the Court and counsel. There was no physical abuse but the above threats as heretofore stated was coercion invalidating my plea of guilty. I had the assistance of counsel in name only. That my retained counsel made no effort to pre-investigate my case prior to my entering a plea of guilty, to establish my innocence.
Furthermore, my court retained attorney was well aware of the fact that there was no corroborating evidence to sustain a conviction except through the co-defendant’s; that there were no other witnesses including Officers, State or City, ever saw me on the day in question where I allegedly committed the crimes charged in the Bill of Information. A jury would have found me not guilty of the crimes charged. My retained counsel was aware that only a suspicion of my guilt had been raised and if the co-defendant’s testimony had been eliminated from my case, and there was no other established evidence, then the corroborating evidence of the co-defendant’s raised only a suspicion of my guilt and would not have been sufficient to establish my guilt.”

The trial court in this case was evidently familiar with every step in the procedure when the appellant entered his pleas of guilty, and we may reasonably assume that the trial court was very familiar with the qualifications of the appellant’s retained counsel in this case and was familiar enough with the overall situation at the time the pleas were accepted to feel that the appellant had obtained such advantage in his plea bargaining that the skill and effectiveness of his counsel would simply never be questioned; but the cold record as it appears before us refreshes no memories of the actual proceedings at the trial as perhaps it would do for the trial court.

The appellant contends in his motion that his total contact with his attorney prior to his pleas of guilty consisted of a mere ten minute interview, and that his attorney knew little, if anything, about his pending cases. If we could read between the lines from the overall record before us, we might easily conclude that the appellant’s attorney knew a lot more about the appellant’s case, as well as the inclination of Crittenden County trial juries, than the appellant gave him credit for. We, of course, are not permitted to read between the lines in the records before us and the record could have been much clearer if the trial court had also inquired of the appellant if he was satisfied with the services of his attorney. If the appellant had answered in the negative, the court could then and there ascertain wherein the difficulty lay.

The appellant now contends that the prosecuting attorney and defense counsel improperly “overbore” him by telling him that if he did not plead guilty to the charges the state had not waived, he would receive a more severe sentence and still be charged and convicted as a habitual criminal. Again the overall record would indicate that if such advice and information was conveyed to the appellant by his counsel and the prosecuting attorney, they were probably telling him the truth, but never the less he now says that because of such threats he was placed in such fear he was unable to adequately confer and consult with his retained counsel and that he was completely coerced into entering his pleas.

From the record before us, we are unable to say that it conclusively shows the appellant is not entitled to relief, so we conclude that the trial court should have granted the appellant a hearing on his motion to the end that we might have a record, in the event of an appeal, from which we could determine wherein the appellant was “overborne” if such was the case. See Walker v. State, 251 Ark. 182, 471 S.W. 2d 586.

Reversed and remanded with instructions to grant a hearing with the proceedings to be reported.

Reversed and remanded.

Fogleman, J., not participating.

Byrd, J., dissents.


author: Conley Byrd, Justice.

text:
    Johnnie STEPHENSON v. STATE of Arkansas
    5728
    482 S.W. 2d 118
    Opinion delivered July 3, 1972

      Louis W\„ Rostech, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Johnnie Stephenson, charged with the April 1, 1967, murder of Lee Jackson Palmer, pleaded guilty to second degree murder on July 22, 1968, and was sentenced to serve 21 years. In his petition under Criminal Procedure Rule 1, and in his testimony at the resultant hearing, appellant asserted that, “his attorney entered the plea of guilty without his approval, and thus denied him the right to a jury trial; that he was not in fact guilty of killing anyone at any time; that he was ignorant of what his attorney was doing in his behalf; and he was never consulted about pleading guilty.” From denial of the petition comes this appeal, urging that his right to a jury trial under the 14th Amendment was violated.

Appellant’s argument is primarily centered on the fact that appellant had only a third-grade education, could not read without glasses, was very hard of hearing, and thus, the assumption of an ability to comprehend the discussions his attorney had with him prior to the guilty plea is purely speculative.

Review of his testimony at the Rule 1 hearing, (at which he stated that he wanted a "time-cut” and the court advised him that was not the purpose of the hearing, but to determine whether the conviction should be set aside), as well as the transcript of the hearing on his plea of guilty, an exhibit in the record, amply supports the trial court’s dismissal of the petition. For example, at the hearing on the guilty plea, the court offered to allow appellant to remain in the county jail until after August 2, when he was to receive his hearing aid from Rehabilitation Service, until appellant explained, “If I got time coming, I can’t get it through the Rehabilitation.” This testimony followed discovery by the court that it was not necessary to “holler” at appellant because he could read lips. After formal sentencing by the court as follows:

“It is the judgment and sentence of this Court that you be taken by the Sheriff of this County and delivered to the Department of Correction, there to serve at hard labor for a period of 21 years. It is the further direction of this Court that you serve at least a third of that sentence, or seven years, before becoming eligible for parole.”

The Court then asked appellant, “Tell me what I said.” Appellant replied, “You said I would have at least seven years before I become eligible for parole on 21 years.” This pretty well demonstrates appellant’s comprehension of the proceedings.

Affirmed.


author: Frank Holt, Justice.

text:
    ROYAL SHOE MANUFACTURING COMPANY v. Sylvia ARMSTRONG
    5-5953
    481 S.W. 2d 737
    Opinion delivered July 3, 1972

      Riddick Riffel, for appellant.

      Sam Boyce, for appellee.
   Frank Holt, Justice.

Appellee filed a claim for workmen’s compensation benefits alleging that she was totally and permanently disabled because of residuals suffered from a cut on one of her fingers. The Commission found that appellee had suffered a 25% functional disabilty to the body as a whole and further determined that, based upon appellee’s age, education and type of work history, she was entitled to a 50% permanent partial disability to the body as a whole. From an affirmance of this award by the Circuit Court, appellant brings this appeal asserting for reversal that the award is not supported by substantial evidence.

Appellee, a widow, testified that she was 47 years of age and had a tenth grade education. She had worked at the shoe factory since 1964 and had never held a job which did not require the use of her hands. She cut a finger in the performance of her duties and was off from work a week. She received medical attention at this time because her hand became red and swollen, her arm hurt, and she could hardly use her injured right hand and arm. When she returned to work, she continued to perform her normal duties without assistance although the pain persisted and required medical aid. About a month later she had to quit work because “it just kept getting worse and it got to where I couldn’t use that arm and fingers *** it got to where I couldn’t even use that hand and my arm.” She was off from work from October 10, 1967, until March 13, 1968.

During this time she saw four different doctors. She received treatment for her condition which was diagnosed as causalgia. Her “fingers jerked all of the time when it was cold they turn blue looking.” There was poor circulation. The doctor injected stellate ganglion block in her neck to relieve the radiating spasm and pain. She, also, continued taking other medication. She has suffered pain constantly since August 8, 1967 (the date of the injury). Upon her return to work on March 13, 1968, she was assigned a different job which required her to pick up boxes. She could do this with her unimpaired fingers on her left hand. Since the accident she is unable to pinch, grasp, or claw with the injured hand. She does not have the same strength in her injured right hand as she does in her left hand. Eventually she was assigned to other job duties requiring the use of her fingers, and she was unable to accomplish the tasks. A few days later, which was in March, 1969, the appellant was “laid off” from her job. Prospective employers would not hire her when they learned about her physical impairment, and she was unable to find “something for a handicapped person.” The physical pain has persisted and medication does not completely relieve it. She takes “nerve pills” to prevent “jerking” or spasms which wake her, and she becomes “sick at my stomach” when the “jerking” reaches up into her arm, shoulder, neck, and ear. She has a loss of function in her shoulder. Appellee’s testimony was corroborated by her relatives and co-workers.

Appellee’s medical expert testified to having treated her on numerous occasions. The initial examination occurred on January 5, 1968. He diagnosed her condition as a disorder known as causalgia. Causalgia is a chronic disorder involving the blood vessels usually of an extremity, and it is characterized by spasm of the blood vessel, coldness of the extremity, and often severe pain, numbness, and usually a profound interference with the function of the extremity. It is caused by a reflex disorder of the nervous system. The initiating cause is practically always an injury, a fracture or crushing injury, and sometines a relatively trivial injury will initiate the process. Appellee’s injury was to the first joint on the right hand; therefore, the part of the nervous system involved was a peripheral nerve which supplies the skin and muscle. The condition is often relieved by a stellate ganglion block. This procedure must be done repeatedly. Appellee underwent this treatment approximately six times. These treatments resulted in rather dramatic improvement for a short period of time.

He further testified that initially she had considerable limitation of motion in the right shoulder. In February she had about 70% range of motion with a good pulse in the radial artery. In March, 1968, her condition was diagnosed by him as causalgia of the right forearm, upper arm and shoulder and bursitis of the right shoulder. The bursitis was probably a result of the other injury. He stated it was difficult to separate the pain and say which one was caused by the bursitis and which one was a result of causalgia. Both, however, were a result of the initial injury. He felt the bursitis was the result of the cut knuckle, because she kept her arm immobilized because of pain and disability and immobilization at the shoulder joint for a period of several weeks or several months very often will result in a frozen shoulder syndrome. He couldn’t say whether burisitis was a direct result of the injury or whether it was simply a “fellow traveler.” A frozen shoulder is the result of something, some disease process or some traumatic process rather than a medical disease of its own. Causlgia follows any type of injury and bursitis could result from trauma. In this case, the bursitis could be just “a fellow traveler.” In his opinion appellee’s frozen shoulder resulted from the injury rather than the bursitis.

Appellant was treated by this doctor on numerous occasions. By August 7, 1968, appellee’s condition had improved greatly. However, she still complained of a problem with her fingers. He thought that inasmuch as this problem was probably functional in origin, it would probably disappear with use upon returning to work. At this time, he felt that her wage earning ability was not materially impaired. Appellee was treated again in April, 1969. At that time she told him she had had thrombophlebitis of the right forearm (this apparently began in February and appellee received treatment from another physician). In April there were no clinical symptoms of thrombophlebitis; however, the return of the causalgia the second time was probably due to the thrombophlebitis but no one could tell whether or not the thrombophlebitis was the result of any particular episode including the cut. On cross-examination the medical witness testified, as abstracted, “I cannot say to a reasonable degree of medical certainty that the return of the causalgia [in 1969] was a result of the earlier causalgia or the cut in the finger.” However, on re-direct, he stated, “if she had never had the original injury, she would never have had causalgia, and she would never have had the return of it.” The last time he had a record of examining her was on June 17, 1969, when he found no recurrence of the thrombophlebitis, and he based his evaluation “strictly” on the causalgia and predicated her disability upon causalgia. At that time she was complaining of continued pain in the right forearm and partial paralysis of two fingers, and, also, frequent attacks of muscle spasms in her fingers, forearm, shoulder, with the pain radiating up the right side of her head. Upon examination he found weakness with no loss of motion in the right forearm and fingers and with inability to grasp small objects; some spasm in the blood vessels; coldness of the extremity; and a small degree of atrophy of the right forearm due to disuse. She could not perform the basic hand functions; grasp, pinch and claw, with her injured hand and fingers. According to him, Dr. Ashley, she had a 25% permanent disibility to the body as a whole.

In evidence is a letter written on November 6, 1967, by another physician who had examined appellee. He wrote:

“#**It is my impression that Mrs. Armstrong has a minor causalgia of the right hand, which should respond quite well to a few stellate ganglion blocks. She is of an anxious type personaltiy and if she does not watch out, the right shoulder will become frozen, or show marked limitation of the motion of the shoulder and for this she needs exercise, ultrasonic heat, etc.*##”

This letter further stated that he recommended that appellee have further treatments. This doctor saw appellee approximately two months later (December 26, 1967), and he described her condition as:

“She continues to have pain in her right hand with associated weakness. She further has some increasing stiffness in the right shoulder and states that now the pain is going up to the base of her neck into her head and she has headaches.”

He indicates in this letter that appellee was undergoing stellate block treatments and recommended a neurological evaluation.

In support of its contention for reversal, appellant argues that Dr. Ashley’s medical testimony is insufficient to support his conclusions that appellee suffered any permanent disability nor is there any other evidence to sustain the Commission’s finding and awarding appellee a 50% permanent partial disability to the body as a whole as a result of the original injury. We cannot agree.

This court recognized in Qualtiy Excelsior Coal Co. v. Maestri, 215 Ark. 501, 221 S.W. 2d 38 (1949), that a “claimant is not required to establish proof of the cause of the death to a mathematical certainty, but when the probable cause of death is established to a reasonable certainty, the burden of proof has been, discharged.” Likewise, in the case at bar, appellee need only establish to a reasonable certainty that her disability was caused by the cut on her finger. In Plants v. Townsend, Curtner Lbr. Co., 247 Ark. 824, 448 S.W. 2d 349 (1969) we quoted:

“It must be kept in mind that the question is not whether the testimony would have supported a contrary finding, but whether it supports the finding made. The commission’s decision should not be reversed unless the proof is so nearly undisputed that fairminded men could not reach the conclusion arrived at by the commission.”

Furthermore, in Wilson & Co. v. Christman, 244 Ark. 132, 424 S.W. 2d 863 (1968), we said:

“The Workmen’s Compensation Commission is charged with the duty and the full responsibility of deciding all claims for disability falling under its jurisdiction, and although its decisions are based on competent evidence, it is not limited, and never has been limited, to medical evidence only in arriving at its decision as to the amount or extent of permanent partial disability suffered by an injured employee as a result of injury. The Commission should consider all competent evidence, and where the claim is for permanent partial disability based on incapacity to earn, the Commission should consider all competent evidence relating to such incapacity, including the age, education, experience, and other matters affecting the claimant’s incapacity to earn the same wages he was receiving at the time of his injury. The Commission should form its opinion and base its award on the preponderance of all the competent evidence, including medical, as well as lay testimony, and also including the testimony of the claimant himself***.”

We further reiterated:

“The opinions of attending physicians and medical experts are admissible as competent evidence when properly presented in a compensation case, but such opinions are not conclusive. They are only to be considered by the Commission along with all other competent evidence, medical and otherwise, in arriving at the degree of permanent partial disability in a compensation case.”

See, also, Dacus Casket Co. v. Hardy, 250 Ark. 886, 467 S.W. 2d 713 (1971).

In the case at bar the evidence is not limited to the medical testimony. When we review all of the evidence in the light most favorable to the finding of the Commission, as we must do on appeal, we cannot say that there is an absence of any substantial evidence to support the Commission as fact finders.

Affirmed.


text:
    Vernon HOGUE v. Alston JENNINGS
    5-5961
    481 S.W. 2d 752
    Opinion delivered July 3, 1972

      Rasmussen & Hogue, for appellant.

      Gus B. Walton Jr., for appellee.
   Frank Holt, Justice.

The appellee brought this action against the appellant to recover the balance allegedly due for legal services. The trial court, sitting as ,i jury, found that the appellant owed the appellee for costs expended in the sum of $1,079.84; that the legal fee of $1,100, $600 of which had been paid, was a reasonable fee for the legal services performed and that a balance of $1,579.84 is owed to appellee. From a judgment on that finding comes this appeal.

Appellant first contends for reversal that the court erred in finding that an account stated ever came into existence. We find no merit in this contention. The factual issues were presented to the court by stipulations. It appears that the legal services were orally agreed upon in 1963 and were concluded in August, 1966. The present action was filed in April, 1970, predicated upon an open account. The appellant responded and interposed the plea that the claim was barred by the 3-year Statute of Limitations. Ark. Stat. Ann. § 37-206 (Repl. 1962). Parker v. Carter, 91 Ark. 162, 120 S.W. 836 (1909). In May, 1971, appellee amended his complaint alleging an account stated based upon his mailing to appellant statements concerning the balance owed on the account. These statements of account were dated October, 1967, and January, 1969, respectively. It is undisputed that appellant received these statements and, according the appellee, the appellant orally acknowledged the indebtedness and promised to pay the account as stated.

In Allen-West Commission Company v. Hudgins, 74 Ark. 468, 86 S.W. 289 (1905), we said:

“An account stated ‘is an agreement between two parties who have had previous transactions of a monetary character that all the items of the account representing such transactions are true, and that the balance struck is correct, together with a promise, express or implied, for the payment of such balance.’ ”

In a more recent case, Boatner v. Gates Bros. Lumber Co., 224 Ark. 494, 275 S.W. 2d 627, (1955), the debtor received monthly statements about his consolidated account with the amount or balance reflected upon each statement. There we said:

“Boatner admitted the correctness of the account and promised payment. This proof discloses a typical example of an account stated and amply supports the trial court’s finding that such an account existed.”

Likewise, in the case at bar, we hold that an account stated existed. From the stipulations it appears there is undisputed evidence that the appellant received a statement of the balance of the account in October, 1967, and January, 1969. The appellant admits receipt of these two statements and does not deny that he called the appellee by telephone and indicated that he acknowledged and owed the amount of the statement and promised he would pay it. Certainly there is substantial evidence to support the finding that appellee is entitled to recover from appellant the balance allegedly due on the account as stated. Neither can we agree with appellant’s contention that the court erred in permitting the appellee to amend his complaint to allege an account stated. It appears that appellant admits in his brief that the amendment of the complaint (May, 1971) does “relate back” in point of time to the original complaint (April, 1970). Therefore, if permitted, “the three-year statute of limitations would begin to run” on the account stated “no earlier” than October, 1967, as found by the trial court. The thrust of appellant’s argument is that the appellee never requested and secured leave of the court to amend his' complaint and the court abused its discretion by acquiescing in this procedure. We note that the amended complaint was filed about a week after a pre-trial conference, at which time an account stated was discussed, and about ten days before the parties filed their respective stipulations with the trial court. It is well settled law that the trial court is accorded broad discretion in permitting amendments to pleadings, and on appeal we will not disturb the trial court’s discretionary authority unless it is clearly abused. Moore v. Moore, 241 Ark. 675, 409 S.W. 2d 830 (1966).

In the circumstances of the case at bar, we are of the view that the trial court did not abuse its discretion by permitting the amendment to the complaint.

Affirmed.

Byrd, J., not participating.


text:
    HOME INSURANCE COMPANY v. Carroll P. WILLIAMS, Individually and as Father and Next Friend of Bruce WILLIAMS, A Minor
    5-5858
    482 S.W. 2d 626
    Substitute Opinion delivered July 3, 1972
    [Rehearing denied July 3, 1972.]

      Griffin Smith, for appellant.

      Gordon, Gordon ir Eddy, for appellee.
   Frank Holt, Justice.

Appellee brought this action against appellant to enforce the uninsured motorist provision of appellant’s policy issued to appellee. Appellee alleged that his minor son, Bruce, was crossing a public highway when he was struck by an uninsured automobile owned by Gene Darter and driven by James L. Ward. Appellant answered and denied that the vehicle involved was uninsured within the meaning of the policy and alleged that the accident and injuries resulted from the negligence of appellee’s son. Appellant also secured a court order which required that appellee amend his pleadings to assert his claims against Darter and Ward and Ward’s business partner as third party defendants pursuant to the Uniform Contribution Among Tortfeasors Act, Ark. Stat. Ann. § 34-1007 (Repl. 1962). In response, the appellee asserted that this joinder statute was inapplicable. Subsequently, appellant agreed that the joinder of the third party defendants under § 34-1007 was incorrect. Appellant asserted, however, that its joinder motion should have been predicated upon § 66-4006 (repl. 1966) which provides for subrogation up to the extent of any amount appellant paid under its uninsured motorist coverage. Upon trial date, the appellee successfully asserted that he was not required to join anyone as a third party defendant pursuant to § 66-4006 because it provides only for subrogation “[i]n the event of payment to any person under the coverage required by this section***.” A jury trial then resulted in a verdict for the appellee under the uninsured motorist provisions of the policy.

For reversal of that judgment appellant contends that it was an error for the trial court to dismiss the actual tortfeasors and to require appellant to defend alone. Appellant argues that under the provisions of the policy and through the dictates of fairness, the third parties allegedly responsible for appellee’s damages should be made co-defendants by the appellee himself in any suit against appellant arising out of the uninsured motorist coverage. We find no merit in this contention. It is true that the policy issued by appellant provided for the “Assistance and Cooperation of the Insured.” This clause states that “in any action against the Company, the Company may require the Insured to join such person or organization as a party defendant.” However, this provision was not specifically pleaded, and it is relied upon for the first time on appeal. In Universal Life Ins. Co. v. Howlett, 240 Ark. 458, 400 S.W. 2d 294 (1966), we said: “In an action upon an insurance policy a general denial merely puts the plaintiff to his proof; an affirmative defense, such as an exception in the policy, must be specially pleaded.” See, also, Stucker v. Hartford Accident & Indemnity Co., 220 Ark. 472, 248 S.W. 2d 383 (1952). In our view, it was necessary for the appellant to specifically invoke the “cooperation” clause in the trial of the case. Instead, appellant sought to compel plaintiff-appellee to join the alleged tortfeasors pursuant to § 34-1007 and § 66-4006 which are inapplicable. Further, in Hartford Accident & Indemnity Co. v. Warren, 246 Ark. 323, 438 S.W. 2d 31 (1969), it was asserted that a judgment against the uninsured motorist was a condition precedent to an action against the insurer under its uninsured motorist clause. In rejecting this argument, there we cited as controlling our decision in MFA Mutual Ins. Co. v. Bradshaw, 245 Ark. 95, 431 S.W. 2d 252 (1968) where we held that an insured has the option of suing either his insurer or the uninsured motorist or both; also, that the insurer itself is not prevented from cross-complaining against the uninsured motorist, or proceeding by a separate action against an uninsured motorist after payment of a judgment in favor of its insured. Similarly, in the circumstances here, we deem that decision controlling. In the case at bar, the trial court correctly held that appellant-insurer could not compel the appellee-insured to join the alleged tortfeasors as co-defendants with appellant pursuant to either of the two statutes invoked by appellant.

However, as we have said, the appellant definitely has the right to make the alleged tortfeasors defendants by a cross-complaint. MFA Mutual Ins. Co. v. Bradshaw, supra. We observe that in appellant’s motion to compel the appellee-insured to make the tortfeasors third party defendants appellant, also, alleged entitlement to a judgment over against them in the event a recovery resulted in favor of the appellee-insured against appellant. This motion was granted ex parte and summons was issued against the third party defendants. Each of these alleged tortfeasors responded by filing separate answers or general denials. Each, also, appeared at trial to defend. In appellant’s amended answer, after its joinder motion was granted and the tortfeasors had responded, the appellant reiterated “that if it is held responsible for any sum it is entitled to judgment against third party defendants for such amount. WHEREFORE, Home Insurance Company prays dismissal, or judgment against third-party defendants as an alternative.” The alleged tortfeasors, themselves, never interposed any objection to being made parties to the lawsuit. In the circumstances, we hold that the pleadings and issues, as joined, after the court’s refusal to compel appellee to continue his litigation by including the tortfeasors as his third party defendants, constituted a cross-complaint by the appellant-insurer. This is in accord with our well established procedure that for the purpose of determining the effects of pleadings the “*** allegations shall be liberally construed.***” Ark. Stat. Ann. (Repl. 1962), § 27-1150. In interpreting this statute, (numerous cases cited there), we have said a liberal construction requires that every reasonable intendment should be indulged in favor of the pleader and effect should be given to substance rather than form regardless of the name of the pleading. It follows that it was error not to treat appellant’s pleadings as a cross-complaint.

Appellant next contends for reversal that the vehicle involved was not uninsured and there was adequate evidence to that effect. We cannot agree. The insurance policy provides, inter alia, that a vehicle is uninsured if “with respect to which there is a bodily injury liability bond or insurance policy applicable at the time of the accident but the company writing the same denies coverage thereunder***” The driver of the car and its owner testified that their individual liability insurance carried disclaimed coverage. A copy of a letter from Darter’s insurer to that effect was made an exhibit. In the circumstances, this undisputed evidence was of a substantial nature and adequate.

Appellant next asserts for reversal that certain photographs were erroneously admitted into evidence. Appellant asserts that the photographs were objectionable because they were taken from a point far distant from the scene of the accident. One shows a school crossing sign approximately 1,000 feet from the point where the accident occurred. A marked crossing for the school children was 335 1/2 feet from the accident scene. Appellee’s minor son was injured when he and a companion, following school’s dismissal, crossed the road at another point, unindicated by a marking, often used by school children going to football practice. Each picture also portrays the scene of the accident. The failure to keep a proper lookout was one of the allegations of negligence. There was evidence that the accident occurred at about the time children were leaving school. Where photographs protray a scene, with fairness and accuracy, it is within the sound discretion of the trial judge to determine their admissibility as an aid to the jury. Riggan v. Langley, 238 Ark. 649, 383 S.W. 2d 661 (1964); Arkansas State Highway Comm. v. Webster, 236 Ark. 491, 367 S.W. 2d 233 (1963). In the case at bar we cannot agree with appellant that the trial court abused its discretion in admitting the photographs.

For the error in not treating appellant’s pleadings as constituting a cross-complaint, the judgment is reversed and the cause remanded.

Reversed and remanded.