text:
    Dr. Manuel KELLEY, et al. v. Alvis WIGGINS, Administrator of the Estate of Melinda Wiggins
    86-117
    724 S.W.2d 443
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987
    [Rehearing denied March 23, 1987.]

      Friday, Eldredge & Clark, by: Phillip Malcom, for appellant Dr. Manuel Kelley.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellant Ambassador Ins. Co.

      Daggett, Van Dover, Donovan & Gaboon, by: Jimason J. Daggett, for appellants Lee Memorial Hospital and St. Paul Fire and Marine Ins. Co.

      George Bailey, and Foehner & Vuylsteke, by: Kenneth K. Vuylsteke and Charles E. Foehner, III, for appellees.
   David Newbern, Justice.

This is a wrongful death case. The appellants, Dr. Manuel Kelley, Lee County Cooperative Clinic, and Lee Memorial Hospital were allegedly negligent in their treatment of Melinda Wiggins, causing her to die as the result of eclampsia, a condition involving hypertension, which occurs in pregnant women. The clinic and the hospital were immune from suit, so their insurers, appellant Ambassador Insurance Company for the clinic and appellant St. Paul Fire and Marine Insurance Company for the hospital, were sued directly pursuant to Ark. Stat. Ann. § 66-3240 (Repl. 1980).

The appellees sought damages of $2,000,000. Based on the jury’s verdicts, the court’s judgment awarded damages in favor of Hope Wiggins, the daughter born of the fatal pregnancy, for $325,000; Frances Graham, Melinda’s mother, for $100,000; Alvis Wiggins, Melinda’s husband, for $75,000, and Melinda Wiggins’s estate for $300,000. The total of $800,000 was adjudged against Dr. Kelley, St. Paul Fire and Marine Insurance Company, and Ambassador Insurance Company. The judgments against the insurance companies were limited to $300,000 (St. Paul) and $100,000 (Ambassador), the limits of their liability insurance coverage.

The appellants have raised a number of points for reversal. In none of their arguments do we find sufficient merit to require reversal of the judgments based on jury verdicts against each of them.

As the two insurer appellants assert that the evidence was not sufficient to support the verdicts, we will state the facts we find to be supported by the evidence. We view the evidence most favorably to the appellees, and we will affirm if there is any substantial evidence to support the verdicts. Arkansas Louisiana Gas Co. v. Hutcherson, 287 Ark. 247, 697 S.W.2d 907 (1985); Handy Dan Home Improvement Center, Inc. v. Peters, 286 Ark. 102, 689 S.W.2d 551 (1985).

Melinda Wiggins gave birth to a child in 1975. During that pregnancy she made visits for prenatal care to the clinic. In the opinion of an expert who testified for the appellees, her clinical records showed a normal pregnancy except for blood pressure readings showing she suffered hypertension. Her hypertension was noted on the records of the University of Arkansas Medical Center where she gave birth in 1975.

After that pregnancy Melinda returned to the clinic to obtain help with contraception. Clinic records showed her blood pressure had returned to normal. In late 1977 or early 1978 she became pregnant again, and she again made prenatal visits to the clinic. She was seen there by a woman she and members of her family thought was a physician but who was a physician’s assistant, Pat Krueger. They called her Dr. Krueger or Dr. Pat. Melinda, during her second pregnancy, was not seen by a physician at the clinic either on her first visit or any subsequent visit. Appellant Dr. Kelley was the medical director of the clinic, and he initialled the reports prepared by Krueger with respect to Melinda’s visits. No notation was made of the hypertension Melinda experienced in her first pregnancy.

Appellee Frances Graham, Melinda’s mother, noticed in May, 1978, that Melinda was beginning to suffer edema, with swelling not only in her feet, but in her legs, arms, hands, and face. She was complaining of headaches and nausea and pain in her upper abdomen. The edema progressed, and the other symptoms became worse in June. She visited the clinic but was given no dietary advice or diuretic. In her first pregnancy she had been placed on a salt-free diet. Melinda visited the clinic on July 10, 1978. On July 14, she complained to her mother of her pain. It was suggested by her mother that she return to the clinic. She called the clinic, but Pat Krueger was not there. She was told to come in on Monday, which would have been July 16. On the night and early morning of July 14 and 15, 1978, Melinda’s pain and nausea became so severe that her husband, appellee Alvis Wiggins, took her to the emergency room at the Lee Memorial Hospital.

Dr. Kelley was at the hospital. He examined Melinda and ordered a laboratory test of her blood. She was unable to give a urine specimen, and Dr. Kelley did not order that one be taken by catheterization. In addition to her other complaints, Melinda told the doctor of stuffiness in her head as well as pain near her right shoulder blade.

Dr. Kelley found her blood count, pulse, and blood pressure were normal. He apparently was unable at that time to compare her blood pressure with her clinic records, however, as he called Pat Krueger from the hospital and asked her about any changes in Melinda’s blood pressure. He also asked whether Melinda had previously had any protein in her urine. Pat Krueger answered she had not. On the hospital record Dr. Kelley listed three possible diagnoses: cholecystitis, upper respiratory infection, and preeclampsia. The signs of pre-eclampsia are high blood pressure, edema, and protein in the urine. Pre-eclampsia becomes eclampsia when a seizure or convulsion occurs.

Melinda was released from the hospital at approximately 3:30 a.m. on Sunday, July 16, 1978, with a prescription for ampicillin and Robitusin for her cold. She returned home with her husband where she suffered her first convulsion at about 6:00 a.m. She was rushed back to the hospital and admitted. Marty Roberts, a nurse employed by the hospital, called Dr. Kelley to say Melinda was there. He did not tell the doctor that she had suffered a convulsion. Dr. Kelley said he would come in to the hospital “after a while.” Dr. Kelley received a second call, this one from Nurse King at the hospital, in which he was told Melinda was having a seizure. He prescribed valium and rushed to the hospital where he began making arrangements to have Melinda transferred to a larger hospital. She ultimately was sent by ambulance to the University of Arkansas Medical Center at Little Rock.

When Melinda was admitted to Lee Memorial Hospital, she was not constantly attended. When one of two seizures she suffered at the hospital began, a nurse had to be summoned to her room to place in her mouth a device to keep her from gagging on her tongue.

For the trip to Little Rock, Dr. Kelley testified he gave more valium to the ambulance attendants, but the hospital record did not show it. Melinda suffered at least one additional seizure on the way. When she arrived at the Little Rock hospital she was given magnesium sulfate. Magnesium sulfate, the preferred drug for treatment of convulsions, was available at Lee Memorial Hospital. She was delivered of her child, appellee Hope Wiggins, by Caesarean section. Melinda then lapsed into a coma and died on July 29,1978. Hope’s premature birth required she be kept at the Little Rock hospital for two months, and, although she is now able to function almost normally, she has lingering respiratory problems.

We will address each argument raised by each appellant or combination of appellants. First we will discuss each appellant’s contentions bearing on the determination of liability, and then we will discuss their arguments that the damages awarded were improper.

1. Dr. Kelley

a. Improper references to insurance

Dr. Kelley contends two medical expert witnesses were asked questions which implied that he was insured against medical malpractice claims. His contention is that these improper questions were asked in a trial which was permeated with references to insurance due to the fact that it was a direct action against two insurance companies. He argues that the appellees’ counsel intentionally mentioned insurance numerous times to inflame the jury into awarding large amounts of damages.

The appellants seem to recognize there was no way that references to insurance could have been kept out of the trial in view of the fact that the action was against two insurers. Thus, they have focused on the questions they argued implied insurance coverage of Dr. Kelley. The first question noted was asked of Dr. Whaley who was called as a witness for Dr. Kelley. He was asked and answered as follows:

Question: Doctor do you know this lawsuit is against St. Paul Insurance Company?
Answer: I have heard you say that.
Question: Is that the biggest malpractice insurance carrier in Arkansas?

Upon objection by Dr. Kelley’s attorney, a conference out of the jury’s presence was held, and, in effect, the objection to the question was sustained. Upon returning to open court, the question was withdrawn. The judge asked the jurors if they could ignore the question, and they indicated they could.

The second specific instance of which Dr. Kelley complains occurred when counsel for the appellees cross-examined a Dr. Ransom about his malpractice insurance. He was asked whether he had insurance coverage with St. Paul. He said he did not know. He was then asked if his insurance premium would increase if a large judgment were awarded against a doctor. He said he did not know.

Dr. Kelley cites Shamblin v. Albright, 278 Ark. 565, 647 S.W.2d 470 (1983), and Hively v. Edwards, 278 Ark. 435, 646 S.W.2d 688 (1983), in each of which we held the trial court did not abuse its discretion by precluding questions which would have alerted the jury that a defendant physician was covered by malpractice insurance. A reading of those cases makes it clear that we have no absolute prohibition against allowing the mention of insurance in malpractice actions. In both instances the trial court excluded the evidence, and we held the appellants had not shown that the probative value of the showing of insurance coverage outweighed the prejudicial effect of that evidence. Here the trial judge, in effect, sustained the objection to the question to Dr. Whaley and overruled it on the question to Dr. Ransom. We find no abuse of discretion.

As Dr. Kelley notes in his brief, this trial was already permeated with the presence of two insurer defendants. The question to Dr. Whaley was disallowed. While it is true that Dr. Ransom was primarily a witness for Dr. Kelley, he also testified that the hospital actions were appropriate. Thus he was testifying in favor of St. Paul. Whether he was insured by St. Paul thus was to some degree relevant to impeachment of his testimony. The trial judge might have sustained the objection to the question on the basis that the effect of one judgment on the company’s rates was too remote and thus its prejudicial effect outweighed its probative value, see Mendoza v. Varon, 563 S.W.2d 646 (Tex. Civ. App. 1978), but he did not. We find no abuse in these circumstances.

b. Use of deposition

Valerie Mitchell, a sister of Melinda Wiggins, testified that Melinda was left in her room unattended by Dr. Kelley and the nurses at Lee Memorial Hospital. Counsel for Dr. Kelley contends he was not permitted to question Mitchell on the basis of statements made by Alvis Wiggins in a pretrial deposition. Dr. Kelley argues, and Ark. R. Civ. P. 32(a)(2) provides, that the deposition of a party may be used by an adverse party for any purpose.

We can find no ruling by the court refusing to allow Valerie Mitchell to be cross-examined on the matters Alvis Wiggins testified to in his deposition. Rather, there was a series of questions to which the court sustained intermittent objections of repetitiveness. In post-trial colloquy with counsel, the court referred to the questions as argumentative, but at no point does it appear that there was a refusal to allow the deposition to be read or otherwise used by counsel for Dr. Kelley.

In his deposition Alvis Wiggins did not say the doctor or the nurses were with Melinda in her room constantly. He said only that they were there. Thus the deposition was not a strong, direct contradiction of Valerie Mitchell’s testimony. In addition, the information from the deposition came into evidence when the deposition was used to cross-examine Alvis Wiggins. He testified his deposition contained his statement that Dr. Kelley “stayed pretty much with Melinda and there were nurses with her when he was not there.” In response to cross-examination at the trial, he testified that they were not present in Melinda’s hospital room at all times.

Even if we could say the court limited the use of the deposition, and if we could find that the limitation constituted error, it was hardly prejudicial in view of the fact that, to the extent the deposition contradicted Mitchell’s testimony, it was placed before the jury later in. the trial.

c. Dr. Smith’s testimony

Expert witnesses for the appellees testified that Melinda should have been given magnesium sulfate rather than valium to control her seizures. Expert witnesses for the appellants testified that valium was entirely appropriate. One of the latter witnesses was Dr. Lander Smith who was training at the University of Arkansas Medical Center in 1978. Dr. Smith testified he was familiar with transfers to the University of Arkansas Medical Center. He said that when a transfer occurs the referring physician speaks with a specialist there and he (presumably the specialist) will state what is best for the patient and will give suggestions for the patient during the transfer. Dr. Kelley’s counsel then asked Dr. Smith this question:

Question: “Dr. Smith, let me ask you: From your knowledge of this case and research of things you have done, do you know what the recommendations were, even of the neurologist at the medical center, foTr transfer of seizuring patients in 1978, particularly as to what medication to put them on for the time of transfer?”

The court sustained a hearsay objection. However, in response to the next few questions Dr. Smith was allowed to testify that in his opinion valium was an appropriate drug to be used in the transfer of a patient with Melinda’s symptoms and that that had been his “feeling” in 1978.

In post-trial discussion of his ruling on the hearsay objection, the judge noted the question lent itself to bejng interpreted as asking what Dr. Kelley was told by a specialist in this case. We agree that was a possible interpretation of the question. That makes irrelevant Dr. Kelley’s argument that an expert may rely on hearsay in forming his opinion. See A.R.E. Rule 703. Dr. Kelley got the benefit of Dr. Smith’s opinion testimony on whether valium was appropriate, but he was not necessarily entitled to have Dr. Smith testify in a way that would suggest what Dr. Kelley was told in this case. The judge concluded the danger that the jury might reach such a conclusion made the prejudice of the proposed testimony outweigh its probative value. We cannot say he abused the discretion granted him by A.R.E. Rule 403.

d. Accord and satisfaction

After the trial counsel for the appellees wrote to counsel for the appellants demanding they pay over the insurance policy limits as to each insured and stating that if the payments were promptly made, interest and claims for excess would be waived. Counsel for Dr. Kelley promptly tendered $100,000 as complete payment of his liability as that was the amount of his malpractice limit. The appellees refused the tender, and Dr. Kelley moved the court to enter an “accord and satisfaction” order. He contends it was error for the court to refuse to do so.

We find no merit in this argument. In their letter to the appellants, the appellees stated, “[b]efore we can accept payment, however, we will need to see certified copies of the policies and face sheets.” The letter referred further to “settlement drafts and policies,” clearly indicating the appellees’ intention to settle with all of the appellants on the basis of the limits of all policies rather than just the one covering Dr. Kelley. There was no such tender by the appellants, and there clearly was no acceptance of a tender by the appellees. Accord and satisfaction will constitute a defense to litigation if the award sought has been tendered and accepted, but not otherwise. See St. Louis Southwestern Ry. Co. v. Mitchell, 115 Ark. 339, 171 S.W.2d 895 (1914). Whether or not “accord and satisfaction” is applicable, it is clear that no enforceable settlement contract was made between the parties to the judgment before us. Dr. Kelley’s tender of $ 100,000 was not a tender of performance in the terms stated in the appellees’ offer.

2. St. Paul Fire and Marine Insurance Co.

Other than its adoption of co-appellants’ arguments which are discussed elsewhere, St. Paul raises only the issue of whether there was evidence sufficient to go to the jury showing negligence on the part of Lee Memorial Hospital. St. Paul’s argument is that the appellees did not establish by competent medical witnesses that the alleged “failures” of the hospital to meet the requisite standard of care existed and were a proximate cause of death. Our task is not, however, to determine those questions. Rather, it is to determine whether there was sufficient evidence produced by the appellees to permit the case to go to the jury. See Chrestman v. Kendall, 247 Ark. 802, 448 S.W.2d 22 (1969).

There was ample testimony, albeit disputed, that the hospital left Melinda unattended after she was placed in a room on her second visit to the hospital. Dr. DeAlvarez, a medical expert witness for the appellees, testified that failure to attend a postseizuring patient continuously was below the reasonable standard of care for a hospital in a community similar to Marianna, Arkansas, which is where Lee Memorial Hospital is located. He said this “failure” among others would have contributed to Melinda’s death.

The evidence also tended to show the hospital was at fault in not getting Dr. Kelley to the hospital sooner after Melinda’s second admission. Dr. Kelley testified that when he was called by Nurse Marty Roberts upon Melinda’s return to the hospital, he was not informed that Melinda had suffered a seizure, although Roberts’s notes showed “Presents with complaint of choking on tongue, seven months pregnant now. Apparently seizuring activity. Dr. Kelley notified. Admit, I’ll be there later.” Dr. Kelley testified that had he been told Melinda had suffered a seizure he would have come to the hospital much quicker.

From the medical expert testimony the jury could have concluded Melinda’s death was caused by the effect of the seizures which temporarily stopped the flow of oxygen to her brain. Had nurses been in continuous attendance, they could have facilitated Melinda’s breathing in the second and third seizures. Had Dr. Kelley arrived sooner he could have prescribed for her sooner. There was thus sufficient evidence for the jury to find negligence on the part of the hospital and that it was the proximate cause of Melinda’s death.

3. Ambassador Insurance Company

Ambassador Insurance Company makes only one argument not dealt with elsewhere in this opinion. It is phrased simply in terms of the insufficiency of the appellees’ evidence to show the Lee County Cooperative Clinic’s acts were the proximate cause of Melinda’s death. The argument has two parts, however. First, it is contended “there is absolutely no evidence that any acts or omissions of Pat Krueger or the clinic proximately caused the death of Melinda Wiggins.” Second, it is contended there was intervening cause such that even if negligence were found on the part of the clinic, the clinic could not be liable.

a. The clinic’s negligence

Dr. DeAlvarez testified it was below the standard of care for a prenatal clinic in a community similar to Marianna, Arkansas, to have failed to identify Melinda as a high risk patient, not to have provided a physician to examine her, not to have noted her excessive weight gain, and not to have taken measures to control weight gain. He further said it was below the standard of care for the clinic to have failed to hospitalize Melinda on July 10,1978, and to have given her Sudafed, a drug which constricts blood vessels.

Ambassador points out that Dr. DeAlvarez acknowledged stating in his deposition that he could not have diagnosed Melinda as pre-eclampsic based on the clinic’s records, and that Dr. Medlin, another plaintiffs expert, said he would not have thought Melinda a high risk patient.

We cannot say that the cross-examination in Dr. DeAlvarez’s deposition or the testimony of Dr. Medlin was so devastating to Dr. DeAlvarez’s clear testimony that the clinic was at fault as to make it insufficient as a basis for the jury’s consideration of the case. The fact that he could not have diagnosed Melinda as being pre-eclampsic from the clinic’s records is, in this instance, not inconsistent with Dr. DeAlvarez’s criticism of the clinic’s records which had not noted her as being a high risk patient whose previous pregnancy had been marked by hypertension. This leads to the argument that, given a finding of negligence by the clinic, it could not have proximately caused her death in view of the intervening acts of Dr. Kelley and the hospital.

b. Intervening cause

Ambassador is correct in asserting there was evidence upon which the jury might have found the acts of Dr. Kelley and the hospital were such that the clinic was absolved by intervening cause as described in Restatement (Second) of Torts § 452(2) (1965):

Where, because of lapse of time or otherwise, the duty to prevent harm to another threatened by the actor’s negligent conduct is found to have shifted from the actor to a third person, the failure of the third person to prevent such harm is a superseding cause.

The comment to this subsection contains the following:

Subsection (2) covers the exceptional cases in which, because the duty, and hence the entire responsibility for the situation, has been shifted to a third person, the original actor is relieved of liability for the result which follows from the operation of his own negligence. The shifted responsibility means in effect that the duty, or obligation, of the original actor in the matter has terminated and has been replaced by that of the third person.

However, the jury did not so find. Ambassádor does not question the instruction given to the jury on this point, A.M.I. 503. That instruction makes it clear that the burden of proof on intervening cause rests with the party asserting it, in this case Ambassador.

In W. M. Bashlin Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982), we said:

The foregoing instruction placed the matter of independent intervening cause squarely before the jury. This is all that appellant could expect under the facts of this case. It may be said that the general rule is that the intervening act or omission of a third person is not a superseding cause when the original actor’s negligent conduct is a substantial factor in bringing about the injury. If the intervening act is a normal response to the situation created by the original actor’s conduct, then there is no intervening cause. When the negligent acts of the parties are concurrent, there is no intervening cause which bars recovery against the original actor. . . . [277 Ark. at 419, 643 S.W.2d at 532].

The state of the evidence in this case was such that the jury could have concluded the acts of Dr. Kelley at the hospital were the “normal response to the situation created by” the clinic’s failure to have noted Melinda was a high risk patient. The evidence was sufficient for the jury to have concluded that Dr. Kelley, who was the medical director of the clinic, continued to rely on the clinic and Pat Krueger even during the hospital episode. Nothing in Ambassador’s evidence compels the conclusion that there was intervening cause or that the clinic’s negligence was not an essential link in the chain of causation. See Arkansas Kraft Corporation v. Johnson, 257 Ark. 629, 519 S.W.2d 74 (1975).

4. Damages

Each of the appellants contends that the awards in favor of Melinda’s mother, Frances Graham ($100,000), husband, Alvis Wiggins ($75,000), and daughter, Hope Wiggins ($325,000), were not based upon substantial evidence but were the result of passion and prejudice on the part of the jury. In addition, Dr. Kelley contests the award to Melinda’s estate ($300,000) on the same basis. We are asked to enter remittiturs.

In St. Louis Southwestern Railway Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977), Justice Fogleman conducted an exhaustive survey of our cases dealing with the manner in which we review damages awarded for mental anguish in wrongful death cases. The opinion distilled a number of factors which we have since followed in evaluating these awards. Martin v. Rieger, 289 Ark. 292, 711 S.W.2d 776 (1986). The factors are:

(1) The duration and intimacy of their relationship and the ties of affection between decedent and survivor.
(2) Frequency of association and communication between an adult decedent and an adult survivor.
(3) The attitude of the decedent toward the survivor, and of the survivor toward the decedent.
(4) The duration and intensity of the sorrow and grief.
(5) Maturity or immaturity of survivor.
(6) The violence and suddenness of the death.
(7) Sleeplessness or troubled sleep over an extended period.
(8) Obvious extreme or unusual nervous reaction to the death.
(9) Crying spells over an extended period of time.
(10) Adverse effect on survivor’s work or school.
(11) Change of personality of the survivor.
(12) Loss of weight by survivor and other physical symptoms.
(13) Age and life expectancy of the decedent.
[289 Ark. at 296; 711 S.W.2d at 778]

a. Frances Graham

Mary Weedham, Melinda’s sister, testified that Melinda and their mother had a special relationship, and their closeness increased during the illness which led to the death of Melinda’s first child at age eighteen months. Frances Graham is raising Hope Wiggins in the atmosphere of loss created by Melinda’s death. In addition, as noted earlier, Frances Graham was a witness to Melinda’s suffering in the last month of her life and to the ultimate torment of her convulsions which the jury apparently concluded could have been avoided. There was strong evidence implicating the first six and the thirteenth factors listed above, and we cannot say there was no basis for the jury’s award.

b. Alvis Wiggins

We find equally strong evidence in support of the award to Alvis Wiggins. He and Melinda were childhood sweethearts, and he had been Melinda’s only boy friend. They married when he was discharged from the Air Force. Melinda was then seventeen. Mary Weedham testified as to their close relationship, stating that Alvis and Melinda were together constantly. She also testified about the effect of Melinda’s death on Alvis. When Hope came home from Little Rock at age nine weeks, Alvis lived with Frances Graham and Hope. He was in such a state of “shock” that he could not work.

Alvis testified that he could not work as a roofer, although he had a job. He testified he was unable to eat for a time, and that during the first few months after Melinda’s death he was unable to accept it and still does not.

Alvis testified that despite Melinda’s accelerating health problems he tried to enjoy his life with her. When she suffered her seizure at home, the skin was torn on the finger he used to try to keep her from choking on her tongue. He was with her through her seizures at Lee Memorial Hospital and was at the hospital in Little Rock during her final comatose two weeks, hoping she would show life signs.

We find evidence that factors (1) through (6), (10), and (13) were present and that the jury was justified in its award to Alvis Wiggins.

c. Hope Wiggins

The appellants correctly point out that Melinda’s employment record was hardly such as to support a finding that she would have made a financial contribution to Hope sufficient to support the award of $325,000. As the appellants say, the award must have been based primarily on Hope’s loss of parental guidance from the mother who died so shortly after Hope’s birth.

As the appellees correctly point out, the evidence of Melinda’s experience with her other child during its eighteen-month battle with congenital brain tumors displayed her capacity for love and parental care adequately. It is, of course, difficult to place a value on an individual parent’s prospective contribution to raising a child who has suffered substantial health problems related to her premature birth. In our view, the jury is in a far better position than we to do so. The only basis for the appellants’ allegation that the award was the result of the jury’s passion and prejudice is that they were aware of the insurance. As noted early in this opinion, that awareness was unavoidable. Given the evidence of the mothering capacity of Melinda Wiggins and the task she would have faced with Hope, we are not in a position to say the size of the award shows that the knowledge that insurance companies were involved caused passion and prejudice in the jurors. Nor can we say that the love, care, and guidance of a mother during what would have been her normal lifetime is necessarily worth less than $325,000.

The appellants have asked that we compare jury awards in other cases, such as: Bridges v. Stevens, 238 Ark. 801, 384 S.W.2d 490 (1964), and Carr v. St. Paul Fire & Marine Ins. Co., 384 F.Supp. 821 (W.D. Ark. 1974), in which the awards were much smaller. In Clark County Lumber Company v. Collins, 249 Ark. 465, 459 S.W.2d 800 (1970), we said:

Every case involving the issue of an excessive verdict must be examined on its own facts; and before this court can constitutionally reduce a verdict we must give the evidence in favor of the verdict its highest probative force and then determine whether there is any substantial evidence to sustain the verdict. Breitenberg v. Parker, 237 Ark. 261, 372 S.W.2d 828.
This court is considerably limited in determining whether a jury award is excessive. A jury and the trial court have an advantage over us in seeing and hearing the witnesses as they testify and their testimony is weighed. We are unable to rely on awards made in other cases in determining whether an award of damages in a given case is excessive because a comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value. [249 Ark. at 476, 477; 459 S.W.2d at 805.]

d. Melinda Wiggins’s estate

Dr. Kelley argues that any damages to Melinda’s estate beyond funeral expenses are based on rank speculation at best, and passion and prejudice at worst, because there is no evidence of conscious pain and suffering on her part which he could have prevented. Of course, whether he could have prevented the seizures she suffered is part of the question of liability. Here the only question we address is that of damages.

We have no doubt the jury could have found great suffering on the part of Melinda during the last month of her life. We are not convinced by Dr. Kelley’s argument that because she was comatose for the last two weeks she did not suffer. We need not repeat the graphic testimony of the witnesses with respect to Melinda’s final illness and the accompanying convulsions. It is enough to say the evidence was clearly sufficient to serve as the basis of the jury’s award of $300,000.

Affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Ann LIGGETT, et al. v. CHURCH OF NAZARENE, et al.
    86-177
    724 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987

      Pearson, Woodruff & Evans, by: Marshall Dale Evans, for appellant.

      Epley, Epley & Castleberry, Ltd., by: Alan D. Epley, for appellee.
   David Newbern, Justice.

The appellees filed this quiet title action in the Carroll County Chancery Court alleging they were the rightful owners of the disputed property: All of lots 7 and 8, Block 31, and all of lots 7 and 8, Block 32, in Eureka Springs, Arkansas. The appellants filed a counter-claim alleging they had purchased the property from the State of Arkansas, receiving three tax deeds, and that they had been in possession of the land for almost seven years. The appellants then filed a motion to dismiss, contending the case should be heard in the circuit court. The appellants also asked for dismissal because of the appellees’ failure to comply with Ark. Stat. Ann. §§ 34-1420 and 34-1421 (Repl. 1962), and the running of the statute of limitations found in Ark. Stat. Ann. § 34-1419 (Repl. 1962).

After a hearing on the motions the court granted the appellants’ motion for dismissal as to the property found in block 31. That ruling was not appealed by the appellees. The court found that the property could not have been sold by a 1947 tax deed from the state for non-payment of taxes because it was church property in 1947, and thus it was exempt from taxes under Ark. Const, art 16, § 5. The court then quieted title to the block 32 property in the appellees and ordered the appellants to vacate.

The appellants then filed a new trial motion alleging that the original forfeiture occurred in 1932, before the church owned the property. They contended the land had been erroneously reforfeited in 1947, and that the earlier forfeiture was newly discovered evidence which could not have been discovered before trial. The chancellor found that this evidence was not sought with due diligence and thus denied the new trial motion filed by appellants and their motion to amend findings of fact. We find no error in the chancellor’s rulings, and thus we affirm.

1. Failure to Comply with §§ 34-1420 and 34-1421

The statutes, in pertinent part, are as follows:

34-1420. Affidavit in action for recovery of land held under tax title — Tender of taxes and value of improvements. The person or persons, . . . claiming any such land as mentioned in the first section [§ 34-1419] of this act, shall, before the issuing of any writ, file in the office of the clerk of the proper court, an affidavit, setting forth that such claimant hath tendered to the purchaser or purchasers thereof,. . . the full amount of all taxes and costs first paid on account of said lands, with interest on the same, . . . from the time said costs and taxes were paid, and also the full value of all improvements of whatever kind and description, made on said lands, by the purchaser or purchasers, . . . and that the same hath been refused.
34-1421. Failure to file affidavit — Dismissal of action — Costs. If any suit or action shall be brought in any court of record in this state against any such purchaser or purchasers, . . . holding any lands, as specified in the first section [§ 34-1419] of this act, and it shall appear to the satisfaction of such court, that no affidavit, as required in the preceding section of this act, was filed previous to the commencement thereof, it shall be the duty of such court to dismiss said suit or action, at the cost of the plaintiff or plaintiffs.

Before these sections apply, so that compliance is required as the appellants contend, there must be a prayer for possession by the person who has filed the quiet title action. That, in essence, makes it an ejectment action. Reynolds v. Plants, 196 Ark. 116, 116 S.W.2d 350 (1938).

The appellants contend there is a prayer for possession in the petition to quiet title filed by the appellees which makes this an ejectment action and makes the statutes applicable. They contend the court erred in not finding that the appellees must comply with the statutes. The only part of the appellees’ petition which could be construed as asking for possession is found in the final paragraph:

. . . fourth, that the said decree declare and adjudge that the plaintiff owns in fee simple and is entitled to quiet and peaceful possession of the real property. . .

Even if we agree that this is a prayer for possession in this quiet title action which would make compliance with the statutes mandatory, we have held that these sections do not apply when the tax sale is void for lack of power or authority to sell the land or a description in the tax deeds sufficient to identify the property. Sutton v. Lee, 181 Ark. 914, 28 S.W.2d 697 (1930). The appellees presented expert testimony by an abstractor who stated, without contradiction, that the tax deeds upon which the appellants’ claim rested contained descriptions insufficient to permit location of the property they purported to describe.

2. Statute of limitations

The statute of limitations argued by the appellants is § 34-1419 which reads, in part, as follows:

34-1419. Recovery of lands held under tax title — Time within which action must be brought. No action for the recovery of any lands, or for the possession thereof against any person or persons, . . . who may hold such lands by virtue of a purchase thereof at a sale by the collector, or commissioner of State lands, for the nonpayment of taxes, or who may have purchased the same from the state by virtue of any act providing for the sale of lands forfeited to the state [f]or the nonpayment of taxes, or who may hold such land under a donation deed from the state, shall be maintained, unless it appears that the plaintiff,. . . was seized or possessed of the lands in question within two (2) years next before the commencement of such suit or action,

We have held that a tax deed void for insufficient description is not such color of title as will set in motion the two-year statute of limitations referred to in these statutes. Halliburton v. Brinkley, 135 Ark. 592, 204 S.W. 213 (1918); Kennedy v. Burns, 140 Ark. 367, 214 S.W. 618 (1919); Goodrich v. Darr, 161 Ark. 514, 256 S.W. 868 (1924).

The test for the sufficiency of a description was set out in Halliburton v. Brinkley, supra, i.e., “a tax deed was sufficient if the description itself furnished the key through which the land might be definitely located by proof aliunde.” Here there was no such description, and we find that the chancellor was correct in his ruling the two-year statute of limitations does not apply.

3. Propriety of chancery court hearing

The appellants objected to having the case heard by the chancellor because the appellees’ claim for possession made their claim an ejectment action. Ejectment is an action for possession filed in circuit court by one who has title to the property, while a quiet title action is filed in chancery court by one who is in possession and wants title to the property declared to be in him. Pearman v. Pearman, 144 Ark. 528, 222 S.W. 1064 (1920).

The equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession, unless his title be merely an equitable one. The reason is that where the title is a purely legal one and someone else is in possession, the remedy at law is plain, adequate and complete, and an action of ejectment cannot be maintained under the guise of a bill in chancery. In such case the adverse party has a constitutional right to a trial by jury. [144 Ark. at 531, 222 S.W. at 1067]

In Ralston v. Powers, 269 Ark. 63, 598 S.W.2d 410 (1980) we held:

The jurisdictional requirement that a party be in possession to quiet title to land in equity has been approved by this court many times. Gibbs v. Bates, 150 Ark. 344, 234 S.W. 175 (1921); Rice v. Rice, 206 Ark. 937, 175 S.W.2d 201 (1943); Lowe v. Cox, 210 Ark. 169, 194 S.W.2d 892 (1946). [269 Ark. at 65, 598 S.W.2d at 412]

Where the propriety of having the case in chancery court is challenged, as here, we reverse if the plaintiff has an adequate remedy at law. Hesser v. Johns, 288 Ark. 264, 704 S.W.2d 165 (1986). The reason the chancellor gave for overruling the motion to transfer the case to the circuit court was that a portion of the title asserted by the appellees was equitable in nature. We do not necessarily agree with that finding, but we need not discuss it further, for there was another basis for retention of the case in chancery court. Where a defendant in a quiet title action files an answer setting up title in himself by adverse possession and requests affirmative relief, he thereby waives his objection to the jurisdiction of the court. Stolz v. Franklin, 258 Ark. 999, 531 S.W.2d 1 (1975). We affirm a chancellor’s ruling if it is correct even though we do so on a basis different from the one he asserted. Smith v. Smith, 272 Ark. 199, 612 S.W.2d 736 (1981).

4. Denial of post-judgment motions

Whether to grant a motion for new trial based upon newly discovered evidence, see Ark. R. Civ. P. 59(a)(7), is within the sound discretion of the trial court which will not be reversed absent an abuse of that discretion. Rogers v. Frank Lyon Co., 253 Ark. 856, 489 S.W.2d 506 (1973). The trial court found that the 1932 forfeiture could have been discovered with reasonable diligence.

The appellants argue that we should hold it was reasonable and not a lack of diligence to rely on the tax deed based on the 1947 forfeiture. We agree with the chancellor that the appellants should have known and could have found out that the property in question was being used as a church in 1947 and thus they should have been on notice that their deed was insufficient.

The appellants contended in their second amended motion for new trial that the state should be made a party to the action because any interest they might have in the property between 1932, when it was forfeited, and 1947, when it was erroneously reforfeited, could not be decided by the chancellor without the state being represented. However, we need not consider the argument, again because we agree that there was not reasonable diligence in discovering the earlier forfeiture. Durham v. Durham, 289 Ark. 3, 708 S.W.2d 618 (1986).

Affirmed.


author: Tom Glaze, Justice.

text:
    MIDWEST BUSLINES, INC. and Kenneth GLOSEMEYER v. Samuel JOHNSON
    86-185
    724 S.W.2d 453
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987

      Saxton & Ayres, for appellants.

      Pickens & Watson, by: Ray A. Waters, Jr.; and Eldridge & Eldridge, by: John D. Eldridge, III, for appellee.
   Tom Glaze, Justice.

Appellants, Midwest Buslines, Inc. (Midwest) and Kenneth Glosemeyer, appeal from a jury verdict awarding appellee $500.00 compensatory and $1,100.00 punitive damages. The verdict resulted from appellee’s claim that, as a passenger on Midwest’s bus, he was wrongfully ejected by Midwest’s driver, Glosemeyer. For reversal, appellants contend the trial court erred by (1) failing to grant a judgment n.o.v. as to both the compensatory and punitive damages and (2) failing to declare a mistrial for remarks made by appellee’s counsel during closing argument.

First, appellants claim that, as a matter of law, there was no substantial evidence upon which to submit the issue of compensatory damages to the jury and none to support the verdict it returned. Arkansas, appellants submit, has long held that, in the absence of showing physical injury, a recovery for mental suffering cannot be had in negligence actions. That being true, they conclude appellee is precluded from recovery here because he failed to show he suffered any physical injury, monetary or out-of-pocket damages, or pain, suffering, humiliation, distress or anguish.

Appellants’ recitation of the law is correct as far as it goes, but the so-called “no impact” rule in negligence actions has no application to willful and wanton wrongs, and those committed with the intention of causing mental distress and injured feelings. Wilson v. Wilkins, 181 Ark. 137, 139, 25 S.W.2d 428 (1930). In Wilson, the court said that mental suffering forms the proper element of damages in actions for willful and wanton wrongs and those committed with the intention of causing mental distress.

The case of Arkansas Motor Coaches, Ltd., Inc. v. Whitlock, 199 Ark. 820, 136 S.W.2d 184 (1940) is similar to the one at bar. There, Whitlock was awarded damages as a result of being wrongfully ejected from an Arkansas Motor Coaches bus, and, in sustaining that award, this court held that one could recover damages to compensate for mental anguish when that mental anguish is accompanied by constructive physical injury which may result from an actual restraint or coercion of the person. The court concluded that Whitlock suffered an actionable wrong for mental anguish when the bus driver, in evicting Whitlock from the bus, took his arm, led him from the bus and embarrassed him in front of the passengers.

In the instant case, the court instructed the jury that appellee was entitled to damages if it found the appellants had acted in a willful and wanton manner — an instruction and finding appellants say is not supported by the evidence. We disagree. Our standard of review, of course, is whether the verdict is supported by substantial evidence, giving the verdict the benefit of all reasonable inferences permissible under the proof. Schuster’s, Inc. v. Whitehead, 291 Ark. 180, 722 S.W.2d 862 (1987). Much of the testimony given in this matter is in irreconcilable conflict. On the day in issue, appellee, then seventy-one years old, was discharged from the University Medical Center in Little Rock where he had been treated for gastrointestinal bleeding and alcoholic hepatitis. The parties agreed that, during his hospitalization, appellee had been incontinent, or unable to control the discharge óf his urine. The hospital apparently made arrangements for appellee to meet appellants’ bus so he could go home to Bald Knob, and, when he left the hospital, he was wearing no shoes. Appellant bus driver, Glosemeyer, — having been placed on notice to expect a man (passenger) to come from the hospital — testified the appellee appeared and boarded the bus carrying a paper bag and wearing no shoes. Although the evidence seems clear that appellee did urinate on the bus en route to Bald Knob, the testimony is uncertain concerning whether appellee had urinated in his pants when seated or in a cup while he stood in the aisle. Appellee testified that he had been unable to “hold [his] water,” and he could not get to the restroom in the back of the bus because there were people in the aisle. No one apparently complained about appellee, but Glosemeyer said he had heard a commotion, and looked back to see appellee in the aisle and passengers with “funny looks on their faces,” looking at appellee and then at Glosemeyer. Glosemeyer claimed that when he arrived at Cabot, he confronted appellee, at which time his pants were unzipped with his penis exposed, and he was holding a paper bag containing a cup with liquid in it. Glosemeyer said he did not touch appellee when evicting him from the bus, although he “probably held his arm so he would not trip.” In doing so, Glosemeyer denied saying anything to appellee. Appellee, in turn, claimed he was left by Glosemeyer on the side of the road, not at the station, and when he asked how he was to get home, Glosemeyer replied, “I don’t know, and I don’t care.” Appellee testified he became scared and nervous until the Cabot police found him and took him to the local police station. One passenger, who had been on the bus, testified that she saw no bus station where Glosemeyer evicted appellee, and, when she complained to Glosemeyer that appellee was sick and she hated to see him “put off’ the bus, Glosemeyer said, “I don’t care what it was.” In sum, we believe the jury, in resolving the conflicts in appellee’s favor, reasonably could have found that these circumstances did not warrant appellee’s removal, and that the manner in which he was removed was willful, humiliating and embarrassing. Accordingly, we hold appellee’s award of $500.00 in compensatory damages is supported by the evidence.

In addressing appellants’ challenge of the punitive damages awarded appellee, we need not rehash the evidence just related. Appellants have detailed the evidence, but, in arguing it, reach a conclusion favorable to appellants that Glosemeyer had the duty to eject appellee from the bus arid that no reasonable mind could conclude otherwise. Considering the conflicting evidence and testimony and when viewing it in appellee’s favor, we simply cannot agree.

For their final point for reversal, appellants complain that appellee’s attorney, in closing argument, prejudiced the jury by alluding to the “golden rule,” by requesting the jurors to “put themselves in [appellee’s] place” and asking, “What would you feel like if you had been treated that way?” Appellants objected to counsel’s remarks and requested a mistrial, which the trial court denied.

In Missouri Pacific Railroad Co. v. McDaniel, 252 Ark. 586, 589, 483 S.W.2d 569, 571 (1972), the court recounted the rule that such arguments, as made here, are improper, but it stated our standard of review in these matters as follows:

“When the ruling of the court is presented to the appellate court in proper manner, then it is the duty of the appellate court to look to the remarks, and weigh their probable effect upon the issues; then to the action of the trial court in dealing with them; and if the trial court has not properly eliminated their sinister effect, and they seem to have created prejudice, and likely produced a verdict not otherwise obtainable, then the appellate court should reverse. However, a wide range of discretion must be allowed the circuit judges in dealing with the subject, for they can best determine at the time the effect of unwarranted argument; but that discretion is not an arbitrary one, but that sound judicial discretion the exercise of which is a matter of review.” (quoting Kansas City So. Ry. Co. v. Murphy, 74 Ark. 256, 85 S.W. 428 (1905)).

In our review of the record, we note appellants promptly objected to counsel’s argument, and upon denial of their motion for mistrial, they requested no cautionary instruction to the jury. Indeed, the trial court, immediately before counsel’s closing statement, already had instructed the jury that remarks during the trial and closing arguments of the attorneys are not evidence, and that any arguments, statements or remarks of attorneys having no basis in the evidence should be disregarded. After the trial court overruled appellants’ motion, counsel for appellee made no further prejudicial reference and ended his argument with a six-sentence explanation of why appellee was entitled to damages. We believe the trial court was correct in ruling that any error caused by counsel’s remarks did not warrant a mistrial.

Affirmed.

       Appellants also suggest that, in the absence of physical injury, the appellee could only recover damages for mental anguish if he had pled and proved the tort of “outrage.” Based upon the facts of this case, we do not believe appellee was limited to such a theory.


text:
    J. Sky TAPP v. Bonita FOWLER
    86-157
    724 S.W.2d 176
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987

      Wootton, Glover, Sanders, Slagle, Parkerson & Hargraves, by: Richard Slagle, for appellant.

      Hobbs, Longinotti, Bosson and Naramore, by: Ronald G. Naramore, for appellee.
   Tom Glaze, Justice.

Appellant appeals from a default judgment entered against him for failing to file an answer to appellee’s complaint. Appellant’s sole contention on appeal is that his “motion to dismiss and motion for summary judgment,” which was denied by the trial court, was a responsive pleading to the complaint and, therefore, the court erred by granting the default judgment.

Appellant, an attorney, represented appellee in a divorce action, and this lawsuit ensues from appellant’s claim of $1,000 attorney’s fees which he retained out of a $10,600 check the chancery court, in a temporary order, ordered paid appellee. The appellee and her husband subsequently reconciled, and after dismissing their divorce action, appellee filed this cause in circuit court on January 15, 1985, alleging appellant had wrongfully converted the $1,000, and praying for judgment in that amount, plus punitive damages.

On February 5, 1985, appellant filed an instrument captioned “Motion to Dismiss and Motion for Summary Judgment”, wherein he alleged, citing ARCP Rules 12(a), (b)(6) and 56, that the appellee’s complaint failed to state facts for which relief could be granted. In support of his motions, appellant attached his and two associates’ affidavits, along with certain pleadings and documents he had prepared in connection with appellee’s divorce action. In sum, appellant’s attachments supported his claim of entitlement to an agreed $1,000 retainer. Appellee responded by denying appellant’s motions and, by counter-affidavit, she attested she never agreed to pay, nor did appellant earn, the $ 1,000 in dispute, and she reasserted her claim that appellant had wrongfully and intentionally converted her money. On March 18, 1985, the parties argued their motions, and, on April 1,1985, the court entered an order denying appellant’s motions. After the court’s April 1 order, appellant filed no further response or pleading. On June 26, 1985, appellee filed a motion for default judgment, contending that appellant had not filed an answer or other responsive pleading as required by ARCP Rule 12(a). Appellant countered that his motions to dismiss and for summary judgment were responsive pleadings and nothing further in the way of a response was necessary. After a hearing, the trial court granted appellee a default judgment on July 17, 1985.

As already noted, the appellant timely responded to appellee’s complaint by filing his motions to dismiss and for summary judgment pursuant to ARCP Rule 12(a) and (b) which, in pertinent part, provide:

(a) A defendant shall file his answer within twenty (20) days after the service of summons and complaint upon him . . .
* * *
The filing of a motion permitted under this rule alters these periods of time as follows, unless a different time is fixed by order of the court: (1) If the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be filed within ten (10) days after notice of the court’s action; . . .
(b) Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion'. . . .
* * *
(6) failure to state facts upon which relief can be granted, . . .
A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismissforfailure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. (Emphasis supplied.)

Because the trial court denied appellant’s Rule 12(b)(6) and summary judgment motions, the threshold issue is: When appellant failed to file an answer within the ten days provided in Rule 12(a), was the court correct in entering a default judgment against him? We hold the trial court erred.

In Cammack v. Chalmers, 284 Ark. 161, 680 S.W.2d 689 (1984), we were confronted with the situation where Chalmers filed a motion to dismiss Cammack’s complaint, and after overruling the motion, the chancellor, by order, gave Chalmers twenty-five days within which to file an answer. Cammack notified Chalmers of the order and volunteered to send him a copy, which he never received. Chalmers filed a late answer, Cammack requested a default judgment, and the chancellor denied Cammack’s motion. In affirming the chancellor’s decision, we said:

ARCP Rule 55 provides that a default judgment should be entered when a party “fails to appear or otherwise defend.” Here, the appellees defended when they filed their motion to dismiss. This holding is also consistent with Ark. Stat. Ann. § 27-1160 (Repl. 1979) which provides that, “The court must in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.” There was no prejudice to these appellants by the appellees’ delay in filing their answer.

We believe the Cammack decision and its rationale is equally applicable here. In fact, appellant defended the action not only by filing his motion to dismiss, but also by submitting a motion for summary judgment with three extensive affidavits, which tended to deny each of the allegations contained in appellee’s complaint. As he was permitted to do under ARCP Rules 12(b) and 56, the trial judge did not exclude the affidavits filed with appellant’s Rule 12(b)(6) motions, and in considering and denying appellant’s motion for summary judgment, he obviously was aware of appellant’s allegations and denials that directly opposed the claims the appellee recited in her complaint. As we noted in Cammack, ARCP Rule 55 provides a default judgment should be entered when a party “fails to appear or otherwise defend.” To hold on the facts before us that appellant failed to appear or otherwise defend appellee’s action would defy common sense, and, at a minimum, place form over substance.

We reverse and remand with directions to set aside appellee’s default judgment and for further proceedings consistent with this opinion. In this respect, we recognize this cause previously had been remanded to permit the court to decide the issue pertaining to punitive damages. The court refused appellee any such award solely on the basis that appellant had been punished by the entry of a default judgment. Because that default judgment is to be vacated, we specifically note that any finding or order by the trial court pertaining to punitive damages should also be set aside, thereby allowing the parties to litigate that issue on remand.

Reversed and remanded.

       A previous attempt to appeal this case resulted in a dismissal. See Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986).


author: Per Curiam.

text:
    Omar ALMOBARAK v. STATE of Arkansas
    724 S.W.2d 180
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987

      D. Scott Hickam, for appellant.
    No objection.
   Per Curiam.

Petitioner, Omar Almobarak, by his attorney, D. Scott Hickam, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to his miscalculation of the ninety-day limit for filing the record in this court. See Ark. R. App. P. 5(a).

We find that such error, admittedly made by the attorney for a criminal defendant, a good cause to grant the motion. See per curiam dated February 5, 1979, 265 Ark. 964; Terry v. State, 272 Ark. 243 (1981).

A copy of this opinion will be forwarded to the Committee on Professional Conduct. In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).


text:
    Wayne DUNCAN v. STATE of Arkansas
    724 S.W.2d 179
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987

      Wayne Emmons, for appellant.
    No objection by appellee.
   Per Curiam.

Appellant has filed a motion for rule on the clerk wherein his attorney admits, because of oversight, he failed to tender the record within the seven-month limit required under Rule 5 of the Arkansas Rules of Appellate Procedure. While we normally grant such motion upon confession-of-error by the attorney, the appellant’s motion, with affidavit attached, reflects that further, substantial delay in filing the record was due to counsel’s apparent negotiations with the prosecuting attorney in efforts to obtain relief from the conviction and/or penalty imposed below. If he had successfully obtained that relief, an appeal would have been unnecessary.

Clearly, such negotiations pose no justification for delay in pursuing a proper appeal, so we remand this cause to the trial court for a hearing to determine if a willful or intentional violation of the appellate rules has occurred by the appellant, if the occurrence is one of ineffective assistance of counsel, or if there is some other good and justifiable cause for the delay. Accordingly, the court withholds granting appellant’s motion until the trial court has conducted its hearing and has transmitted and certified its findings to this court.


text:
    Herbert MALONE v. STATE of Arkansas
    CR 86-206
    724 S.W.2d 180
    Supreme Court of Arkansas
    Opinion delivered February 23, 1987

      William L. Wharton and appellant, pro se.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Per Curiam.

William L. Wharton has filed a petition asking to be relieved as counsel on appeal for appellant, Herbert Malone. A pro se motion has been filed by Malone seeking the same relief. Both parties explain that a conflict has developed between them such that Wharton can no longer serve as counsel. We deny the petition.

Arkansas R. Crim. P. Rule 36.26 states that an attorney has a duty to continue to represent a convicted defendant throughout any appeal unless permitted to withdraw by the trial court or this court “in the interest of justice or for other sufficient cause.”

The “interest of justice” does not require that Wharton be relieved as counsel. While it is obvious from the correspondence attached to Wharton’s motion as exhibits that animosity exists between Malone and the attorney, that is not sufficient cause to replace Wharton. Malone has a right to an attorney on appeal, but he does not have a right to an attorney of his choosing. See Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982). Nothing has been presented to this court that indicates Wharton cannot do a competent job on appeal, and there is no reason to permit a substitution of counsel that will only serve to delay the appellate process.

Accordingly, both motions are denied.


author: Darrell Hickman, Justice.

text:
    Lance EGGLESTON v. Fred A. ELLIS, et al.
    86-172
    724 S.W.2d 462
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987

      Laws, Swain & Murdock, P.A., by: Ike Allen Laws, Jr. and Timothy W. Murdock, for appellant.

      Anderson & Kilpatrick, by: Michael E. Aud, for appellee.'
   Darrell Hickman, Justice.

Lance Eggleston, a former instructor of South Central Career College in Little Rock, sued the college and its president, Fred Ellis, for malicious prosecution. A jury awarded Eggleston $80,000 damages. The trial judge set aside the verdict because Ellis filed criminal charges on the advice of his counsel and a deputy prosecuting attorney. The trial judge was wrong in finding that this issue was undisputed.

On appeal from a judgment n.o.v., we review the evidence with all reasonable inferences deduced therefrom in favor of the party obtaining the original judgment, in this case, in favor of Eggleston. A trial judge may set aside a judgment only if there is no substantial evidence to support the verdict. Sullivan v. Employers Equitable Life Ins. Co., 287 Ark. 310, 698 S.W.2d 510 (1985).

The trial judge instructed the jury that it was a defense to a malicious prosecution action that criminal charges were instituted based on the advice of legal counsel after all material facts are fully and fairly presented to counsel. L. B. Price Mercantile Co. v. Cuilla, 100 Ark. 316, 141 S.W. 194 (1911). Here the appellee had the burden of proving the charges were brought on the advice of counsel. It was not undisputed that all the material facts were fully and fairly related to counsel. We only have the testimony of Fred Ellis, a party to the action, that all the facts were fully and fairly related to counsel. Neither lawyer was called to testify. It has long been a rule that the testimony of a party to an action, who is interested in the result, will not be regarded as undisputed in determining the legal sufficiency of the evidence. Hamby v. Haskins, 275 Ark. 385, 630 S.W.2d 37 (1982).

Ellis caused two counts of theft to be brought against Eggleston, theft of a vehicle and master computer disks. The title to the car was in the name of South Central, and payments were made by South Central from money withheld from Eggleston’s wages. Eggleston made the down payment and traded in his old car. He also paid the license fee, registration and insurance. Ellis testified that when Eggleston resigned from the college staff, Eggleston agreed to transfer the car’s title from the college within 48 hours. Ellis left on a week’s trip. Upon his return, he learned that the title had not been transferred. Ellis asked another employee, Randy Long, to conduct an inventory. He found that two computer disks were missing. Ellis said he conferred with the college’s attorney, Mark Stodola. He told him the situation about Eggleston’s resignation, the situation about the car and the missing disks. Ellis said Stodola told him to try to locate Eggleston. Ellis said he told Randy Long and Dr. Roger Rutten to locate Eggleston, but both were unsuccessful. When Ellis told Stodola the college could not locate Eggleston, Stodola also tried to find him but was unable to do so. Ellis testified that Stodola made an appointment with the deputy prosecuting attorney, Dale Barron, to discuss the situation, and they advised him to file charges. Ellis admits he never tried to call Eggleston or locate him. Ellis’ testimony was contradicted by Randy Long, who testified he was never asked to find Eggleston. Dr. Rutten did not testify. Ellis admitted having no evidence that Eggleston stole the disks except that they were missing.

Paul Johnson, a lawyer retained by Eggleston to form a corporation, testified that he had two telephone conversations with Ellis about the car title, one before the charges were filed and one after. Johnson told Ellis the new corporation would refinance the car, and he needed the details on the loan. He said Ellis never inquired of Eggleston’s whereabouts nor informed him of the warrants.

Ultimately, the theft charge on the car was dismissed by the municipal judge at a preliminary hearing; the theft charge of the disks was bound over to circuit court. A different charge on the car, defrauding secured creditors, was filed in circuit court. At trial it was learned that the disks were in another instructor’s possession. The trial judge convicted Eggleston of defrauding secured creditors but found no criminal intent. On appeal the court of appeals reversed the conviction and dismissed the charges. Eggleston v. State, 16 Ark. App. 72, 697 S.W.2d 121 (1985).

The trial court set the verdict aside evidently believing Ellis’ version of what counsel was told and that he relied on this advice in filing charges. Considering the conflicts in the testimony and the fact that the jury could disregard Ellis’ version of what he told his attorney and the deputy prosecuting attorney, there was a jury question on this issue, and there was substantial evidence to support the jury’s verdict, which rejected the defense of advice of counsel. Therefore, the trial court’s judgment is reversed and the judgment reinstated.

The appellees argue that if we do not affirm the trial court’s judgment setting aside the verdict, a new trial should be granted instead of reinstating the jury verdict. The appellees requested a new trial alternatively in their motion to set aside the jury verdict. As a basis for a new trial, the appellees stated the verdict was against the preponderance of the evidence, and the trial court made specific errors during the trial. The trial court set aside the verdict because the appellees acted on the advice of counsel. No mention was made in the court’s order about the verdict being against the preponderance of the evidence. On appeal the appellees argue for a new trial because of specific errors made during the trial.

The appellees argue the trial court gave several instructions to the jury which included the phrase the college “and/or” Fred Ellis. We have sharply criticized the use of the phrase “and/or” because it can be interpreted to be conjunctive or disjunctive, and have decided it has no place in modern practice. Boren v. Qualls, 284 Ark. 65, 680 S.W.2d 82 (1984). However, the appellees did not request the liability of the appellees to be considered separately. The appellees did not request AMI 106 which asks the jury to consider each defendant’s cause separately. Therefore, the appellees were not prejudiced by the giving of the instructions. We do not reverse a decision unless prejudicial error is committed. Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976).

The appellees also objected to the trial court giving an instruction which included the words “instituting or continuing,” arguing there was evidence that the appellees instituted the charges, but there was no evidence the charges were continued by the appellees. The appellees argue it was the prosecutor and the courts who continued the charges. When we consider the evidence in a light most favorable to the appellant, there was evidence that the appellees “continued” the charges against Eggleston. Therefore, the trial court correctly gave the instruction.

The appellees finally argue the trial court erred in admitting Plaintiffs Exhibit #5, a one page summary of Eggleston’s medical bills and the photocopies of those bills. Appellees argue there was no medical testimony that the bills were reasonable, or that the treatment was required due to the appellees’ action. The trial judge has discretion in deciding whether a witness has laid a sufficient foundation to testify about reasonableness and causal relationship. Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1984). There was medical testimony that the tests were necessary to determine if there was a physical cause for Eggleston’s pains. Once this possibility was ruled out, the psychological expenses arose. Eggleston testified that his health deteriorated after the arrest. There was sufficient testimony to establish a causal relationship. We cannot say the trial judge abused his discretion in admitting the evidence.

Reversed and remanded with instructions to reinstate the judgment.

Reversed and remanded.


text:
    Milton FERRELL, Administrator, et al. v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY
    86-210
    724 S.W.2d 465
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987
    [Rehearing denied March 23, 1987.]

      Fletcher C. Lewis, for appellant.

      David Hodges, for appellee.
   Darrell Hickman, Justice.

A McCrory Public School bus, driven by George Humphrey, collided with a vehicle driven by Sharon Ann Ferrell on Highway 145 south of McCrory at approximately 6:45 a.m. on October 17, 1983. Mrs. Ferrell was killed. Hazel Annette Wilson was a passenger. The personal representative of Mrs. Ferrell’s estate sued the appellee, the insurance carrier for the school district, directly for wrongful death. Mrs. Wilson joined the suit, seeking damages for personal injuries. The jury returned a verdict for the insurance company, finding Mrs. Ferrell 100% negligent. On appeal the personal representative and Mrs. Wilson allege four errors were committed at the trial.

The first error alleged is that the trial court wrongfully refused to instruct the jury on Ark. Stat. Ann. § 66-3240 (Repl. 1980), which provides that when a school district has liability insurance, the carrier may be sued directly. The appellants’ attorney and the attorney for the insurance company argued over the role of the bus driver and school district during the law suit. The appellants’ attorney argued the suit was not against the school district or the bus driver but against the insurance company. The attorney for the insurance company argued that the jury would have to find the driver and consequently the school district at fault.

The trial court instructed the jury that in order for the appellants to recover, the jury must find that the bus driver or the school district was negligent and that negligence was the proximate cause of the appellants’ damages. AMI Civil 2d, 203. If the Arkansas Model Jury Instructions contain an instruction applicable to a civil case and the trial court determines that the jury should be instructed on the subject, the AMI instruction shall be given unless the trial court determines it does not accurately state the law. Per curiam order April 19,1965. It is not error to deny a proffered instruction if the subject is covered by the model instructions. Wharton v. Bray, 250 Ark. 127, 464 S.W.2d 554 (1971). Appellants’ attorney informed the jury several times that this action was against the insurance company and not against the bus driver or the school district. We find there was no prejudice to the appellants by the trial court’s refusal to give their instruction. Christmas v. Raley, 260 Ark. 150, 539 S.W.2d 405 (1976).

Appellants next argue that the trial court erred by allowing a state trooper to give his opinion on the point of impact. Gary Gray testified that, in his opinion, the point of impact occurred about three feet over the center of the highway in the school bus’ lane of traffic. The effect of this opinion was that Mrs. Ferrell’s vehicle crossed the center of the road and hit the bus. The appellants argue it was error to qualify this trooper as an expert. In Smith v. Davis, 281 Ark. 122, 663 S.W.2d 165 (1983), we held an officer investigating an accident can give an opinion about the point of impact if properly qualified. The trial court decided this officer was sufficiently qualified to testify to the point of impact. The trial court heard about Gray’s training, experience, and how he determined the point of impact. We cannot say the trial court abused its discretion. A.R.E. Rule 104(a).

Appellants argue that the judge was wrong in denying their motion for a new trial. Essentially, the argument on appeal is that the jury was wrong, because the accident could not have been Mrs. Ferrell’s fault. There was testimony that the school bus was driving with only the headlight on the passenger’s side operating; the highway did not have a centerline painted; it was a very foggy morning with very limited visibility. There was also evidence that Mrs. Ferrell was driving fast and in the middle of the road. The jury was entitled to conclude that Mrs. Ferrell caused the accident by crossing the center of the highway and striking the bus in its proper lane of traffic. We examine a denial of a motion for a new trial to see if there is any substantial evidence to support the verdict. Lamons v. Croft, 290 Ark. 341, 719 S.W.2d 426 (1986); Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26 (1982); Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). Here, there was substantial evidence to support the jury’s verdict.

Finally, appellants argue that the trial court erred in granting the insurance company’s motion in limine, excluding certain evidence about the bus driver’s conduct before and after the accident. The trial court did not exclude this evidence. At the hearing on the motion, the trial judge reserved his ruling until the matters came up at trial. The matters did not come up at trial. Since appellants never obtained a ruling on the motion, the issue is not preserved for appeal. Wood v. State, 276 Ark. 346, 635 S.W.2d 224 (1982).

Affirmed.


text:
    Roger Hale MARX v. STATE of Arkansas
    CR 87-11
    724 S.W.2d 456
    Supreme Court of Arkansas
    Opinion delivered March 2, 1987
    [Rehearing denied March 30, 1987.]

      Morgan E. Welch, for appellant.

      Steve Clark, Att’y Gen., by: Mary Beth Sudduth, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Roger Hale Marx, the president of an asphalt construction company, stopped in a bar after work to meet a friend, Dr. Stan Heard, a chiropractor. Marx admitted to having three drinks. Dr. Heard left about 6 p.m., and a short time later Marx left for home. As Marx crested a hill in a residential area, Becky Moore, a thirteen year old, ran into the street and hit his vehicle. The impact threw her over the vehicle. Marx did not stop but continued on his way home. Steve Jordan saw Marx leave the scene of the accident, got in his vehicle and followed Marx to his house. Jordan yelled at Marx, who remained in his car, then returned to the accident scene and gave Marx’s license number to the police. Marx went to his office and had an employee, Richard Evans, call the police. When the police arrived, Marx turned himself in. A breath test was administered and Marx registered .18% blood alcohol content. Becky Moore died three days later, and Marx was charged with manslaughter, leaving the scene of an accident, and driving while intoxicated. He was acquitted of manslaughter but convicted of leaving the scene and DWI. He was sentenced to four and a half years imprisonment for leaving the scene, one year for DWI and fined $10,000.

Marx argues on appeal that the court should have admitted the testimony of Dr. Heard regarding what Marx told him before the accident and the testimony of Richard Evans about what Marx said after the accident. Other issues raised relate to the certification of the breathalyzer, warnings given by the officers and instructions refused by the trial court. On appeal we view the evidence in the light most favorable to the state, and the judgment will be affirmed if there is any substantial evidence to support the verdict. Lane v. State, 288 Ark. 175, 702 S.W.2d 806 (1986).

Marx asserted the defense of duress to the charge of leaving the scene and the jury was instructed on this defense. Duress is defined in Ark. Stat. Ann. § 41-208 (Repl. 1977):

(1) It is an affirmative defense to a prosecution that the actor engaged in the conduct charged to constitute an offense because he reasonably believed he was compelled to do so by the threat or use of unlawful force against his person or the person of another that a person of ordinary firmness in the actor’s situation would not have resisted.
(2) The affirmative defense provided by this section is unavailable if actor recklessly placed himself in a situation in which it was reasonably foreseeable that he would be subjected to the force or threatened force described in subsection (1) of this section.

Marx testified that he heard a scream and slowed down. He knew he had hit someone; however, he saw people rushing at him and left the scene. He said he thought he was going to be attacked. Then someone followed him in a car, and he panicked because he was afraid of being beaten.

Steve Jordan, who witnessed the accident, said he heard the impact, turned and saw Becky Moore on the ground, saw the driver look at Becky and then drive off. Jordan got in his car and followed Marx. He said Marx sped away and he had to drive 60 or 70 miles per hour in a residential area to keep up. He followed the vehicle to a house where it pulled in a driveway. He talked to Marx but neither of them got out of their cars. Jordan left to drive to the accident scene with Marx following, but after a few blocks, Marx was no longer in sight.

Another witness, Pam Howlett, said she saw Becky hit the car, saw the car keep going, waved at it, and when it didn’t stop, got the license number and called the police.

Marx argues Dr. Heard’s testimony regarding what Marx told him at their meeting prior to the accident should have been admitted. He told Dr. Heard about some personal problems: he said he was emotionally upset, because he might lose his business; a burglar had recently broken into his home, he had shot the burglar and feared retribution; and he said his mother had been run over by a car only a week before. Dr. Heard attempted to testify to this conversation at trial, but the state objected because it was hearsay. Marx argued it was admissible as a present sense impression, an exception to the hearsay rule. The trial court ruled the testimony inadmissible, and he was right in this regard.

A present sense impression is “ [a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediatély thereafter.” A.R.E. Rule 803( 1). A present sense impression must describe or explain the event the declarant is perceiving. D. Binder, Hearsay Handbook, 2nd. Ed. § 101 (1983). The statement must be made while the event or condition is being perceived by the declarant. 4 Weinstein, Evidence, § 803(1)[01] (1985). The statement is required to be contemporaneous or near contemporaneous with the event. Binder, supra.

A good example of a present sense impression is found in Brown v. Tard, 552 F. Supp. 1341 (D.C.N.J. 1982). A maintenance worker in an apartment building was convicted of murdering a tenant’s live-in girlfriend. The tenant testified that on the morning of the murder his girlfriend called him and told him that she was not going to work and that “the guy is here to fix the air conditioner.”

Marx’s statement to Heard occurred about an hour before the accident and was not an impression Marx had related to leaving the scene of the accident. The trial judge determines whether evidence is admissible and on review we reverse the decision only if there is an abuse of discretion. A.R.E. Rule 104(a); White v. Mitchell, 263 Ark. 787, 568 S.W.2d 216 (1978). We find that the trial judge did not abuse his discretion by finding this was not a present sense impression and excluding the testimony.

While Marx mainly argued at trial and on appeal Heard’s testimony was admissible as a present sense impression, he explicitly argues for the first time that this testimony was also admissible under A.R.E. Rule 803(3) to show Marx’s mental condition at the time of the accident. The exception to the hearsay rule provides evidence is admissible showing the “[t]hen existing mental, emotional, or physical condition. A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.” The state asserts this argument was not raised at trial, and therefore cannot be considered on appeal. Hill v. Bentco Leasing, Inc., 288 Ark. 623, 708 S.W.2d 608 (1986). However, we believe Marx essentially made this argument to the trial court because the trial judge, in his summation of the long argument made by appellant, said:

The Defense states it’s going to offer this to show his mental condition at the time to show that he reasonably believed he was compelled to leave the scene of the accident. Because he reasonably believed that he was compelled to leave by the threat or use of unlawful force against his person.

Marx argues the testimony was necessary to show the jury what his peculiar situation was at the time of the accident in connection with his defense of duress. Heard’s testimony was relevant to show Marx’s mental and emotional condition at the time of the accident; that the combination of his troubles caused Marx to believe that outside forces were closing in on him and threatening his security, compelling him to leave the scene of the accident when the bystanders ran towards him. The trial court correctly ruled the testimony inadmissible.

Our duress statute is similar to the Model Penal Code proposal for duress which provides for the defense in cases where the actor was coerced by force or threats of force “which a person of reasonable firmness in his situation would have been unable to resist.” Model Penal Code § 2.09 (Proposed Official Draft 1962). The defense of duress requires that “at the time of the conduct constituting the offense [in this case, leaving the scene] the actor suffers an impairment of his ability to control his conduct such that he cannot properly be held accountable for it.” 2 P. Robinson, Criminal Law Defenses § 177 (f) (1984).

The standard used to measure a person of ordinary firmness takes into account the actor’s “situation.” Factors to be considered in determining that situation are those that differentiate the actor from another, such as size, strength, age or health; matters of temperament are not considered. Model Penal Code § 2.09 notes on status of section (Tentative Draft No. 10 (I960)). For example, if the actor were blind or if he had just suffered a blow or experienced a heart attack, these would certainly be facts to be considered, but heredity, intelligence or temperament of the actor would not. Model Penal Code § 2.02 notes on status of section (Tentative Draft No. 4 1955).

Disabilities relevant to the defense are discussed in 2 P. Robinson, Criminal Law Defense § 177 (c) (1) (1984):

* * * In duress, however, the disability — the state of coercion — may have few external manifestations and may dissipate immediately, leaving little trace of its former influence on an otherwise normal defendant. For these reasons, no doubt, most duress formulations require objective proof of the cause of the state of coercion. This means in practice that the coercion must be the result of a sufficiently grave threat of harm.
Such evidence of the cause of the disability serves the same function in duress as evidence of the disability in other excuses, such as extreme psychosis as the disability in insanity. The evidence assures the community that the disability existed; it distinguishes the coerced defendant from the general population; and it supports the claim of an existing condition, a sufficient impairment of control. The Commentary to the Model Penal Code duress excuse explains this requirement of an objective cause for the state of coercion in terms of society’s ‘unwillingness to vary legal norms with the individual’s capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable * *

In § 177 (c) (3), Robinson elaborates further on the reason for an objective standard:

It may seem that duress is unique among excuses in requiring that the threat causing the disability meet an objective standard. For instance, as long as an actor is involuntarily intoxicated to an extent that satisfies the excusing condition of impairment of control, the intoxication excuse is not withheld because the amount of drugs slipped into his drink is insufficient to grossly intoxicate the person with a reasonable tolerance to such drugs. Likewise, if an actor is insane, society does not inquire whether the factors responsible for the insanity would have had the same effect on the person of reasonable sensibilities. But the special objective restriction on the cause of the disability in duress is necessary to ensure conformity with a characteristic that is inherent in the other excuses. But requiring that an actor be intoxicated or insane, those excuses automatically ensure that an excuse will be available only for defendants with a demonstrable defect that distinguishes them from the general population. In contrast, the bare, unqualified disability in duress, a state of coercion, carries no such assurance; everyone is subject to pressures, demands, and urges every day.
Mistake and duress are similar in that in both cases the actor is a normal person, one who cannot be distinguished by either a physical or mental defect. Both kinds of actors must therefore demonstrate that special circumstances, for which they are not responsible, caused their conduct, and would have induced the same conduct by the reasonable person. In the case of duress, the special circumstances are a threat that would create a state of coercion in the reasonable person that would cause him to succumb. As discussed in Subchapter C of this chapter, in the case of mistake, there is no disability, but the special circumstances are such that the reasonable person would not have known of the wrongfulness or criminality of their conduct. The phrase ‘person of reasonable firmness’ is employed in the duress disability to emphasize the characteristic of the reasonable person that is most relevant.

Arizona v. Starks, 122 Ariz. 531, 596 P.2d 366 (1979), is a case in point. The defendant Starks was charged with armed robbery. He and a co-defendant were being transferred from a pretrial hearing to jail; the co-defendant was handed a gun by his wife, and then ordered Starks to disarm the guard and remove his personal property. Starks complied. When two other people walked into the area, they were also robbed. At Starks’ trial he sought to introduce the testimony of his psychiatrist that he, Starks, suffered from temporal lobe epilepsy and was mentally retarded, and due to his mental condition, was susceptible to threats. The Arizona court held this testimony was inadmissible because “[o]nce the defendant asserts that he was in fact in fear, his conduct is then judged by an objective standard. The defendant’s offer of proof clearly indicates that Dr. Garcia-Bunuel’s testimony delved into the defendant’s subjective mental state and was therefore properly excluded.” The Arizona court used an objective not a subjective standard for the defense of duress. Cf., United States v. Hearst, 412 F. Supp. 889 (D.C. Cal. 1976) (held that expert psychiatric testimony was admissible to explain the effects that kidnapping, prolonged incarceration, and psychological and physical abuse may have had on the defendant’s mental state at the time of the bank robbery where the defense was coercion or duress.); Annot., 1 A.L.R. 4th 481 (1980).

The testimony of Dr. Heard is inadmissible because it concerns Marx’s mental or emotional condition and that is purely subjective and irrelevant in this case to the defense of duress. The testimony that Marx had been burglarized, shot the burglar, feared retribution, his mother’s car accident, and his business trouble may illustrate Marx’s mental or emotional condition at the time of the accident, but the testimony does not show that a person of ordinary firmness with these concerns would have left the scene of the accident. Everyone has problems, concerns and troubles. From an objective standard, Marx’s problems do not differentiate him from the rest of us. Therefore, the trial court correctly ruled the testimony inadmissible.

Marx also proffered the testimony of Richard Evans whom Marx told after the accident that he thought the bystanders at the accident were going to beat him. That is why he left the scene. Marx claims the statement was made only 27 minutes after the accident, and therefore admissible as an excited utterance, an exception to the hearsay rule. A.R.E. Rule 803(2). An excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. A.R.E. Rule 803(2).

The trial judge, after hearing the testimony and considering the circumstances, decided this statement was not an excited utterance, instead he characterized it as self-serving. The trial judge observed that the statement was made about one hour after the accident. We are unable to determine from the record exactly when the statement was made or how Marx determined it was made 27 minutes after the accident. However, it was for the trial court to determine if the statement was made under the stress of excitement, an excited utterance, or after Marx had calmed down. We cannot say the trial judge abused his discretion in ruling the testimony inadmissible. A.R.E. Rule 104(a), White v. Mitchell, supra.

Marx objected to the admission of the breath test results, which showed he registered .18% blood alcohol content, arguing the machine was not certified in compliance with regulatory procedures. The defense argued a monthly proficiency report had not been filed for June. A health department regulation requires proficiency reports to be filed with the department monthly. The state proved the machine was certified from April 1,1985, through July 1,1985. Monthly proficiency reports were filed for April and May. A spot check on June 11, the date of this test, was recorded on the police records. We have held repeatedly that only substantial compliance with health department regulations is required. Sparrow v. State, 284 Ark. 396, 683 S.W.2d 218 (1985). The trial judge ruled the test results admissible and we find no abuse of discretion.

Marx objected to the testimony of Gay Horn, a health department official who was called to testify about the department’s records on this machine. She was not disclosed by the state as a witness. A.R.Cr.P. 17.1(a)(1) requires the state to provide the defense with the names of witnesses it intends to call. The trial judge ruled the defense was not surprised, because the defense had talked to her prior to the trial. Martinez v. State, 269 Ark. 231, 601 S.W.2d 576 (1980). Also, Horn was called only after the defense asserted the need for an official to testify about the monthly proficiency reports. Parham v. State, 262 Ark. 241, 555 S.W.2d 943 (1977). The state had met its burden before she was called. We find no prejudicial error. Vasguez v. State, 287 Ark. 468, 701 S.W.2d 357 (1985).

Marx argues his constitutional right to counsel was violated because the breath test was given without counsel and the police failed to properly advise Marx of his right to a second test. There is no constitutional right to counsel in connection with this test. Wells v. State, 285 Ark. 9, 684 S.W.2d 248 (1985). The police advised Marx of his right to take a second test before he took the test and Marx signed the rights form. The police complied with Ark. Stat. Ann. § 75-1045(c)(3) (Supp. 1985). Sparrow v. State, supra.

Various instructions offered by the defense were properly refused because they were covered by instructions given by the trial court. Conley v. State, 270 Ark. 886, 607 S.W.2d 328 (1980). The trial court is not required to give multiple instructions stating the law in various ways. Butler v. State, 261 Ark. 369, 549 S.W.2d 65 (1977).

Affirmed.