text:
    Andrew Jackson ROSS v. STATE of Arkansas
    CR 74-35
    514 S.W. 2d 409
    Opinion delivered September 30, 1974
    [Rehearing denied November 4, 1974.]

      Murphy, Carlisle & Taylor, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings, Jr., Asst. Atty. Gen., for appellee.
   CARLETON Harris, Chief Justice.

Andrew Jackson Ross, in 1971, the Treasurer of Pope County, Arkansas, was charged with the crime of embezzlement, the Information alleging 86 transactions of embezzlement of public funds in his custody and possession, it being alleged that the embezzlement occurred between January 5, 1971 and December 10, 1971. On trial, the jury found Ross guilty and his punishment was Fixed at 21 years imprisonment in the Arkansas Department of Correction. From the judgment so entered, Ross brings this appeal. For reversal, four points are relied upon, which we proceed to discuss.

It is first asserted that a confession given by appellant was not freely and voluntarily made and was therefore inadmissible, this contention being based on the premise that the statement was given in consideration of a promise of leniency. We do not agree. Prior to the introduction of appellant’s statement into evidence, a Denno hearing was held in chambers on motion of the State, and at such hearing the Sheriff of the County and Robert H. Williams, original counsel employed by Ross, testified, the latter being called by appellant. Williams testified that he had earlier entered into plea bargaining negotiations with the prosecuting attorney and had received assurances that that official would recommend to the court a 15 year sentence, 10 years being suspended, if Ross should plead guilty to the charges. The attorney testified that he gave this information to his client and was advised by the latter that the agreement was acceptable, and what Ross “wanted to do.” Williams very clearly stated that the agreement was not contingent in any manner upon Ross agreeing to give a confession and, in fact, the lawyer testified that the agreement on the recommendation of time to be served was made before the prosecuting attorney asked for any statement. These were the only witnesses who testified in chambers and the court held the statement to be voluntarily made, commenting further to the effect that in instances where agreements had been reached between the State and defense, following plea bargaining, and a statement was subsequently given, such statement, under appellant’s theory, no matter how voluntary, would be inadmissible if a defendant decided to retract such confession. In the trial itself, Williams reiterated the testimony given in chambers and further testified that the statement was taken in his office. Mr. Williams, a capable and experienced attorney, was present the entire time and thus was in a position to advise his client during the questioning. The attorney also testified that Ross was entirely willing to make a statement. Appellant relies upon People v. Jones (Ill. App.), 291 N.E. 2d 305, where the court held a confession to be inadmissible, such confession being rendered after an agreement had been reached by the State and defense during plea bargaining. We do not consider the case applicable to the fact situation at hand. In Jones, the testimony on the part of the defendant (which was sharply disputed) reflected that the promise of leniency was conditioned upon that defendant testifying on behalf of the State against another defendant; Jones was told that he could get 40 to 50 years if he went to trial. The opinion further reflects that the statement was taken by an Assistant State’s Attorney in his office, counsel for defendant not being present. It is at once apparent that there is but little, if any, similarity in that case and the one at hand. In addition to the differences in the circumstances surrounding the statement here in issue, it will also be noted that Ross himself does not contend that the agreement reached between the prosecuting attorney and his counsel had any bearing on his willingness to give the statement. Not a single witness testified to such a fact. In fact, appellant admits in his brief that the confession was not given in consideration of the agreement between the State and defense counsel, appellant stating:

“The testimony reflects that an agreement had been reached between the appellant’s attorney and the Prosecuting Attorney and the statement given by the appellant was purely for whatever extrajudicial purposes the Prosecuting Attorney might have had.”

It is true that the attorney said that he would not have permitted the statement to have been made except for the agreement which had already been consummated, but this would seem to be the obvious view of an experienced attorney, and certainly has nothing to do with the voluntariness of the statement. For that matter, in Jones, the court held that the issue of voluntariness was a question for the trial court to determine and stated that a reviewing court will not disturb such a finding unless there is a showing that it is contrary to the manifest weight of the evidence.

Appellant’s brief also devotes a paragraph to an assertion that the confession was inadmissible for the reason that Ross, during interrogation, indicated that he wished to answer no more questions. We find no merit in this contention. In the first place, this issue was not raised in the trial court. The record reflects the following colloquy between the court and defense counsel, as follows:

“THE COURT: Do I understand you to say that there has been a denial of constitutional rights in this case?
MR. MURPHY: No. No. If this is admitted it will be. This is not a voluntary statement.
THE COURT: I see.
MR. MURPHY: Because it was given under a benefit.'1'1 [Our emphasis].

This objection, which has already been thoroughly discussed, was the only objection made to the admission of the confession. It might be added that Ross never declined to answer questions, and indicated only once that he was tired. Certainly, the finding of the Pope County Circuit Court that the confession was voluntarily made is not against the weight of the evidence.

It is next urged that the appellant lacked the mental capacity to voluntarily waive his constitutional rights, and that this lack of mental capacity was made known to the State at the time the confession was obtained. Let it be said at the outset that no objection along this line was made to the trial court at all. As previously stated, the only objection to this confession made to the circuit court was that it was the result of coercion, i.e., made on the basis of the understanding that Ross would receive a lesser sentence. Under our procedure and cases, we do not consider arguments raised for the first time in this court on appeal. See The Travelers Insurance Company v. McCluskey, 252 Ark. 1045, 483 S.W. 2d 179. This actually could preclude consideration of the point, but inasmuch as this is a case of public interest, it might be said that even considering the point to be properly raised here, same is found to be without merit. Appellant’s argument is based on the confession itself and thus is totally dependent upon the statements of Ross. Briefly stated, he related the disorders that he had been told he was suffering from by his doctor. He mentioned shock treatments at sometime in the past, and stated that the doctor, during his most recent confinement, thought he (Ross) was suffering from a brain tumor (but the tests showed normal); the doctor subsequently found a small cancer in his stomach. In subsequent testimony which was offered by the defense in an effort to establish insanity, Dr. Stephen Finch testified that Ross was suffering from chronic brain syndrome, a condition where brain cells die because of lack of blood supply. The doctor said that Ross suffered from a memory loss, more particularly of recent events, and that he would say that appellant’s brain had deteriorated because of arteriosclerosis, to the age of an 80-year-old man. There was other medical testimony on both sides, but no testimony by any physician was offered that Ross was mentally incompetent to make the statement. The testimony of appellant’s physicians was simply an effort to convince the jury that Ross was not guilty by reason of insanity.

The basis of the allegation that a lack of mental capacity was made known to the State at the time the confession was obtained is predicated simply upon a few statements that appellant made to the prosecuting attorney during interrogation. For one, when asked about the alleged giving of money to his secretary for extra work, Ross replied that he “wouldn’t be capable of remembering what happened back then because I underwent shock treatments and it has kinda affected my memory a little bit.” For another, appellant stated that his doctor had advised him that he would not be able to be present on the date set for trial and should not even engage in telephone conversations. It is argued that after these observations by Ross, the prosecuting attorney should have ceased his questioning, but that instead, “Incredibly the inquisition continued for quite some length of time. ” We cannot agree that the matters mentioned reflect a lack of mental capacity to give the statement. Appellant appeared fully aware of the questions being propounded, and it is interesting to note that when asked if he had converted to his own use about $295,040.61, appellant responded, “ ’94,1 believe.” He also explained that at the end of each month, to make his bank statement balance with his books, he “would take from one bank and put in the other.” When asked how much he would take from the bank, he answered, “Just whatever amount I used that month I would take from the other bank and then before the end of the month — at the end of the month I would put that back.” Let it also be remembered that his attorney was present with him for the purpose of seeing that appellant’s rights were not violated. The interrogation was conducted in a conversational manner and there was no harassment or intimidation of the witness. We find no merit in appellant’s second point.

It is next contended that the introduction of evidence of alleged embezzlement occurring prior to 1971, and for which no criminal charge had been filed, was prejudicial and requires a reversal. Wendell Riddell, an auditor for the Division of Local Affairs Audit, employed by the Audit Division for about 12 years, testified that he recovered 85 checks totaling $41,570.00 for the year 1971 (this was the amount set out in the Information filed against Ross), and he asked appellant if he objected to telling the amount that had been taken. Ross responded that the amount of the shortage would be close to $300,000.00. Subsequently, appellant, according to the auditor, stated that they would have to go back over a period of years to determine the proper amount. The auditor testified that the total shortage amounted to $295,040.61. Counsel for appellant objected to “anything which happened before 1971,” such objection being overruled, the court holding it admissible as testimony concerning method of operations. Counsel never did state why he objected to testimony concerning shortages before 1971, except that on one occasion he said that he objected “if this is trying to get anything in in the form of a confession or admission.” Subsequently, counsel asked that the testimony be stricken, stating, “The Information is for $41,000.” We find no merit in the contention. While evidence of other offenses is not admissible where the only purpose is to portray a defendant as a person of bad character, or addicted to crime, such evidence is properly received, inter alia, to show mode or method of operations, common scheme or plan, design, habits, practices, etc. See Baker v. State, 4 Ark. 56; Cain v. State, 149 Ark. 616, 233 S.W. 779; and Tolbert v. State, 244 Ark. 1067, 428 S.W. 2d 264. See also 22A CJS Criminal Law § 688 where it stated:

“Proper evidence which proves or tends to prove a common scheme, plan, design, or system of criminal action will not be excluded because it also shows the commission of another crime by accused. Broadly speaking, evidence of other crimes than that charged is competent and admissible when it tends to establish a common scheme, plan, system, design, or course of conduct.”

It might be added that appellant requested no instruction advising the jury that the testimony was admissible only for the purposes herein mentioned.

Finally, it is asserted that the trial court erred in refusing to declare a mistrial when the appellant discovered a member of the jury was a justice of the peace. Formerly, by statute (Ark. Stat. Ann. § 39-230 [Repl. 1962]), a justice of the peace could be peremptorily challenged, but such statute was repealed by Section 30 of Act 568 of 1969. Of course, there was no statutory disqualification even to begin with, and the juror was not challenged on voir dire; nor is there any indication that his presence as a member of the jury prejudiced the rights of the appellant. Under these circumstances, there was no abuse of discretion in refusing to declare a mistrial.

Finding no reversible error, the judgment is affirmed.

It is so ordered.

        Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774.

      While not entirely clear, the record indicates that Williams was the attorney for the Bank of Russellville, one of the depositories for County funds, and this apparently occasioned his withdrawal.

      In Jones, the trial court held the statement to be involuntary.

      The treasurer banked with the Bank of Russellville and the Peoples Bank.


source: Caselaw Access Project

author: GEORGE Rose Smith, Justice.

license: Public Domain

text:
    Richard Leon BREWER v. STATE of Arkansas
    CR 74-60
    513 S.W. 2d 914
    Opinion delivered September 30, 1974

      Cuy Jones Jr. and Phil Stratton, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Dep. Atty. Gen., for appellee.
   GEORGE Rose Smith, Justice.

The appellant, charged with second-degree murder in the shooting of his wife, was found guilty by the jury and was sentenced to imprisonment for ten years. For reversal he contends that the trial court should have directed a verdict in his favor and that the court was in error in its rulings upon the admissibility of certain evidence.

With respect to the directed verdict counsel for the appellant mistakenly assume that we may consider only the evidence that had been introduced when the State rested its case in chief. The appellant, however, did not stand upon the motion for a directed verdict which was made at that time. Instead, he introduced proof, including his own testimony, to establish his defense. By that procedure the original motion for a directed verdict was waived; the sufficiency of the evidence must be determined upon the entire record. Crow v. State, 248 Ark. 1051, 455 S.W. 2d 89 (1970).

There is ample proof to support the verdict. The jury had grounds for disbelieving Brewer’s assertion that he accidentally shot his wife while cleaning his pistol. To begin with, there were admittedly two shots, which makes it unlikely that both were accidental, as Brewer testified. The State showed that, depending upon whether the gun was cocked, it took either 8 or 14 pounds of pressure to pull the trigger. The police arrived at the scene almost immediately, but they found no equipment for cleaning a gun. The decedent was shot at close range. Finally, there had been marital difficulties between the couple. Brewer had contracted a venereal disease three different times; in one instance he had infected his wife.

It is argued that the State’s proof was incomplete, because Dr. Moser, who performed an autopsy and determined the cause of death, was unable to say that the body which he examined was that of Brewer’s wife. Dr. Moser, however, took pictures of the body, the pictures being received in evidence. On cross-examination Brewer identified one of the pictures as that of his wife. Thus any defect in the State’s proof was corrected later in the trial.

We cannot sustain the appellant’s contention that the State failed to establish a continuous chain of possession with respect to the cartridges that the police found at the Brewer home, where the homicide occurred. Officer Martin, who first took charge of Brewer’s pistol, said that “it had four shells in it, and two had been shot.” Brewer’s argument assumes that the officer was referring to only four shells; but upon the testimony as a whole the jury could readily have found that the officer was talking about six shells. Indeed, his field notes made at the time refer specifically to six cartridges, and the testimony given by other witnesses in the chain of possession is to the same effect. When the testimony is considered in its entirety no gap in the chain is established.

It is insisted that one of the State’s witnesses, Mrs. Garrison, was allowed to testify about the contents of an insurance policy in violation of the best evidence rule. The witness, who was the personnel manager at the plant where Mrs. Brewer had worked for a short time before her death, testified that under the company’s insurance plan for its employees Mrs. Brewer had been insured for $4,000, plus double indemnity. It is now argued that the insurance policy should have been produced by the State.

We find no error. The best evidence rule does not apply strictly to collateral matters. Lin Mfg. Co. of Ark. v. Courson, 246 Ark. 5, 436 S.W. 2d 472 (1969). McCormick’s treatise on Evidence, § 234 (2d ed., 1972), points out that some writing plays a part at nearly every turn in human affairs. It becomes impracticable to forbid any reference to a writing without its being produced in court. McCormick goes on to say that although the concept of collateralness defies precise definition, three principal factors should be considered. “These are: the centrality of the writing to the principal issues of the litigation; the complexity of the relevant features of the writing; and the existence of genuine dispute as to the contents of the writing.” Id.

The appellant’s present argument fails on all three points. The group insurance policy had a bearing only upon possible motive, not an essential element in the State’s case. The face amount of an insurance policy is not such a complex matter that the writing itselt must be examined before the amount can be determined with reasonable certainty. Finally, the record contains no indication that there was any genuine dispute about the extent of the coverage. The objection was a purely technical one, which the trial court properly overruled.

We have considered the appellant’s brief in its entirety and find no prejudicial error.

Affirmed.


author: Lyle Brown, Justice.

text:
    THE DOWNTOWNER CORPORATION v. Gordon SCOTT
    74-89
    513 S.W. 2d 910
    Opinion delivered September 30, 1974

      Fred E. Harrison & Thomas E. Downie, for appellant.

      Troy Wiley, for appellee.
   Lyle Brown, Justice.

Appellant Downtowner Corporation instituted this suit to require Gordon Scott to account for profits from the operation of the Red Apple Inn during a period from June 1, 1972, through November 7, 1972. The critical issue in the case is which party is entitled to the profits made during the stated period.

Downtowner Corporation owned a large land development at Eden Isle, Arkansas, which included Red Apple Inn, a resort hotel, and related recreational enterprises. On March 1, 1972, Downtowner gave Block Investment Company an option to purchase the entire Eden Isle properties. Negotiations toward that end began to go forward and in late May it appeared that the sale was near closing.

Scott, manager of the Red Apple Inn, learned of those negotiations in March 1972. Since Block’s interest was mainly in the land development, appellee reached a separate agreement with Block to purchase Red Apple Inn if and when it was acquired from Downtowner. The Scott-Block agreement was expressed in a written offer dated May 4 and accepted by Block on May 8. It was essential to Scott that he have the benefit of the profitable summer months to offset the loss which would expectedly occur in the winter months. The contract contained a provision to that effect. Thereafter, various officers of Downtowner, at different times, became aware of the Scott-Block agreement.

On May 31 Downtowner sent Loel Holder, an employee, to Red Apple Inn to conduct an inventory and accounting of receivables and cash on hand. Afterwards Holder signed a memorandum prepared by Scott’s attorney and dated May 31, to which was attached a typed schedule reflecting a summary of the audit and inventory. That document in most part contained language identical to Scott’s May 4th contract with Block, including the following:

Scott to assume all obligations incurred after June 1, 1972, except depreciation and taxes or other assessments and Scott to have the benefit of all income accrued and earned during that portion of time between June 1, 1972, and closing date.
The purpose of Holder’s visit, the scope of his authority,

and the effect of the May 31st memorandum are in dispute. Downtowner contends Holder was sent to establish certain values as of May 31 so that at its closing with Block the sale of Red Apple Inn would be retroactive to that date. Down-towner contends Holder was a part-time accountant who had no authority to bind Downtowner to a contract. Scott contends Holder was sent to turn over the operation of the Inn to him, Scott, pursuant to his contract with Block. Scott contends he also had assurance from a Downtowner official, Mr. Perkins, that Downtowner would sell the Inn to Scott if the Block-Downtowner deal was not consumnated.

On July 12 Holder again went to Red Apple Inn and effected a “reconciliation of funds”, in essence giving Down-towner credit for funds collected prior to June 1 but earned thereafter, such as advance deposits. The balance owing Downtowner was $13,605.26 and Scott gave Holder a check in that amount.

From June 1 until November 7 Scott operated the Inn independent of any real control by Downtowner, although some objections were voiced to Scott in June by Fred Eydt, Vice President of Operations for Downtowner. During that period Scott retained the income, paid the daily expenses, and placed the receipts in accounts he had set up under his sole control. Downtowner continued to pay taxes, insurance, and mortgage payments totalling over $59,000.

During that summer the sale from Downtowner to Block began to fall apart and in early September negotiations finally were terminated. Scott then submitted Downtowner a written offer which was substantially the same contract Scott had made with Block. Following a refusal of that offer there were further negotiations and Scott and his attorney thought a meeting of the minds had been reached. On November 7 Downtowner officials went to Eden Isle and assumed control of the Inn from Scott and put in a new manager. An inventory was taken at that time to establish cash on hand and accounts receivable which Downtowner retained. Scott retained the profits and all records of his operation from the period June 1 through November 7. In December Downtowner sent Scott a number of bills incurred during his operation and he paid them.

In January 1973 Downtowner brought this action against Scott for an accounting of the profits of his operation. Scott answered and counterclaimed, seeking recovery for certain capital improvements and for receivables collected and retained by Downtowner which had been earned prior to November 7. The chancellor found that a contract existed between the parties either expressly, by ratification, or by es-toppel, whereby Sbott would operate the Inn, not as an employee or agent of Downtowner, but as an independent operator under which Scott would retain what he made or assume any loss incurred. The petition for accounting was consequently denied. As to Scott’s counterclaim, the chancellor found that if Scott was entitled to any recovery thereunder it should be retained by Downtowner as rent.

We cannot agree with the chancellor’s conclusions while at the same time conceding that the suit presented a difficult and novel question for which no parallel can be found in any prior decision. We find there was in fact an agreement based on the sincere belief of all parties that a sale to Scott would be consummated and that such sale would be retroactive to June 1. That agreement allowed Scott to get the advantage of the summer business; however, the retention of those profits was conditioned on the closing of a sale to Scott.

In the first place the testimony of Scott warrants such a conclusion. The chancellor propounded this question to Scott: “Were you working on the theory all the time when you were running this business that you were going to buy the business?” Scott answered in the affirmative. At another point in his testimony Scott testified: “I assumed I would end up owning the property involved”. Scott also conceded there was no discussion as to who would get the net profits during his period of operation. He said he was standing on the written documents.

In further support of our conclusion we examine the written instruments introduced into evidence. The first one is the offer to purchase executed by Scott and addressed to Block. It provided that in the event the sale was not consummated by June 1, the operation and management would be turned over to Scott on that date and he would retain the profits accruing between June 1 and closing date. Then, under date of May 31 Scott executed a memorandum to Down-towner, to Block, and to the banks which proposed to finance Scott. It was in effect an amendment to the written offer of May 4. It provided, among other things, that the operation and management of the Inn would be transferred to Scott on June 1 and that he would thereafter retain all profits until closing date. Again, under date of September 12, 1972, after the proposed sale to Block had collapsed, Scott made a written offer to Downtowner. Therein it was stated that Scott would retain all income accrued and earned from June 1, 1972, until closing date. We think it abundantly clear there had to be a closing of the sale to Scott before he was unconditionally entitled to retain the summer profits.

Appellant Scott finds himself in a position which is untenable, namely, that he was entitled to the profits from the operation, come what may, and regardless of whether there was ever a closing of any sale of the property to him. Again, the agreement to buy and sell was not open-ended; it was based on a contingency of a closing.

The principle of estoppel is of no benefit to Scott; that is because we find no estoppel. There can be no estoppel because Scott did not show that he relied on representations, inaction, or silence of Downtowner to his detriment. Bowlin v. Keifer, 246 Ark. 693, 440 S.W. 2d 232 (1969). As to representations, Scott concedes that the only representations made about the profits were contained in the recited contracts. As to inaction or silence there was no occasion for Downtowner to speak out about the profits until the sale to Scott collapsed. Furthermore, there is no evidence in the record that Scott suffered any detriment.

Nor can we find any evidence that Downtowner committed any act of ratification whereby Scott was vested with the sole right to the profits during his period of operation. It is undisputed that if a closing had been effected then Scott was entitled to the profits; therefore, there was no cause for Downtowner to demand the profits until the sale became an impossibility.

The chancellor laid stress on the memorandum of May 31 from Scott to Downtowner and seems to conclude that since the instrument was approved for Downtowner by Holder, it constituted a contract between the parties. If it be conceded that the instrument did form a contract between the parties, we simply cannot interpret it to mean that Scott was entitled to the profits of a sale which was never consummated.

The cause is remanded with directions to conduct an accounting of the operation from June 1 to November 7 and to enter judgment accordingly. In that connection it is noted Downtowner appears to concede in its brief that in an accounting Scott should be credited with his salary “and possibly an extra amount should he be able to establish services over and above those he had previously exerted in operation of the Inn as well as credit for expenditures or improvements of a capital nature made in good faith. ...”

Reversed and remanded.

BYRDj., dissents.


author: John A. Fogleman, Justice.

text:
    Helen P. WASHBURN v. STUART’S MUFFLER SHOP & Alfred C. HENDERSON
    74-81
    513 S.W. 2d 913
    Opinion delivered September 30, 1974

      Dodds, Kidd, Hendricks & Ryan, for appellant.

      Whetstone & Whetstone, by: Bud Whetstone, for appellees.
   John A. Fogleman, Justice.

Appellant was injured when struck by a motor vehicle driven by Alfred C. Henderson, the agent, servant or employee of Stuart’s Muffler Shop. The incident occurred in the intersection of .Broadway and Eighth Street in Little Rock, which is controlled by traffic lights. When struck, appellant was walking in a painted crosswalk provided for pedestrians. Appellant’s sole point for reversal is the failure of the circuit judge to include Ark. Stat. Ann. § 75-627 (b) (Repl. 1957) as a part of AMI 601 (Violation of Statute or Ordinance as Evidence of Negligence) as she requested. We find no error and affirm.

The statute which appellant insists should have been included in the instruction is a part of § 76 of Act 300 of 1937 and reads thus:

(b) whenever any vehicle is stopped at a marked crosswalk or at any unmarked crosswalk at an intersection to permit a pedestrian to cross the roadway, the driver of any other vehicle approaching from the rear shall not overtake and pass such stopped vehicle.

Sec. 76 is a part of Art. X of the Act, which is entitled “Pedestrians’ Right & Duties.” Sec. 75 is the opening section of that article. It reads:

Section 75. Pedestrians Subject to Traffic-Control Signals. Pedestrians shall be subject to traffic-control signals at intersections as heretofore declared in this act, but at all other places pedestrians shall be accorded the privileges and shall be subject to restrictions stated in this article.

We take § 75 to be the introductory provision of this article and to govern the remaining sections including 76 (b). The latter section could not be applicable because of the traffic control signals at the intersection. Thus, we cannot say that appellant was “accorded the privileges” of § 76 (b) to the extent that Henderson could have eeen held guilty of a violation of the statute simply because he overtook and passed a vehicle stopped at the crosswalk to permit appellant to cross the roadway. For this reason, there was no error in the trial court’s refusal to include § 76 (b) in the instruction. This does not mean that a jury might not have found that appellant’s conduct constituted negligence. It simply means that the court properly refused to tell the jury that a driver’s overtaking and passing a vehicle stopped to permit appellant to pass was, in and of itself, evidence of negligence.

Since we make this disposition of the case on the merits, we do not consider appellee’s argument that the judgment should be affirmed because of appellant’s failure to designate sufficient record for review of the point relied upon by her and because of her failure to file a statement of the points to be relied upon, after having filed a less-then-complete record.

The judgment is affirmed.


author: J. FRED JONES, Justice.

text:
    James L. EDRINGTON v. Barbara Edrington FITZGERALD
    74-95
    514 S.W. 2d 712
    Opinion delivered September 30, 1974

      Tom Forest Lovett & Griffin Smith, for appellant.

      Marvin H. Robertson, for appellee.
   J. FRED JONES, Justice.

This is an appeal by James L. Edrington from a chancery court decree denying his habeas corpus petition for the custodial possession of two minor children from his former wife and mother of the children, Barbara Edrington Fitzgerald. In 1962 Edrington obtained a divorce from the appellee in Jefferson County Kentucky while he was stationed in that state as a member of the Armed Forces. The custody of the two children, a boy then one year of age and a girl then seven months of age, was awarded to him by consent in the divorce decree.

Edrington was transferred to the state of Maryland in January, 1967, and since his retirement from the Armed Forces in 1972, he has resided in the state of Indiana. The children have lived with him in Maryland and Indiana except for visitation periods with their mother. The appellee mother married Fitzgerald in 1968 and has lived in the state of Arkansas since her remarriage. None of the parties have resided in Kentucky since 1967. The battle over the custody of the children in this case has been a continuous one extending through the courts of Kentucky, Maryland, Indiana and Arkansas and over a period of twelve years, the entire life of the children. Of course the children are the primary casualties.

The original divorce decree and many of the numerous subsequent court orders are not in the record before us but the history of the litigation is set out in a detailed “Findings of Fact and Conclusions of Law” filed on July 24, 1969, by the Jefferson Circuit Court in Kentucky denying one of Mrs. Fitzgerald’s petitions for change in custody. The pertinent portions of this ten page document are as follows:

“This action came before the Court following the filing of an amended and supplemental complaint by the defendant seeking change of custody of the two infant children of the parties.
On December 14, 1962, a judgment of divorce was entered incorporating an agreement awarding the plaintiff the custody of the two children, who are now seven and eight years of age respectively, and awarding the defendant the right of reasonable visitation.
Following several abortive efforts by the defendant to secure custody of the children an agreement was entered on June 1, 1965, ordering temporary custody to the defendant from June 1, 1965, to September 1, 1965. On November 5, 1965, another amended and supplemental counterclaim was filed by the defendant praying for the permanent custody of the children. The Court entered its findings of fact and conclusions of law on May 6, 1966, retaining custody with the plaintiff and awarding custody during the summer months to the defendant with support to be paid her at that time at the rate of 1120 per month.
Sergeant Edrington, plaintiff in this action, a member of the United States Army Air Force, was transferred to the Andrews Air Force Base in December, 1966, and reported there on January 19, 1967. He has been living there since that time with- his present wife whom he married on October 15, 1964, in Florida, and his two children by his first marriage, the subject matter of this action, and her child by a previous marriage and the child born of his present union.
# * *
in the year 1968 the defendant had moved to Maryland and lived within five miles of the residence of the plaintiff. * * * [FJriction arose which resulted in the employment of attorneys in Maryland by both of them. As a result, the defendant filed in the Maryland Court a petition for modification of visitation rights requesting that she be given Christmas visits. An order was entered on December 23, 1968, by the Prince George Circuit Court granting the plaintiff in this action custody of the minor children during the period of one week prior to the beginning of school in the fall until one week after the ending of school in the summer, granting Mrs. Fitzgerald custody for one week after closing of school in the summer until one week prior to the starting of school in the falL Other provisions were made in the order, the principal of which was that the mother should have the right of visitation with the children commencing Christmas of 1968 and every even numbered year thereafter from December 26 until the evening prior to the resumption of school and commencing Christmas of 1969 and every odd year thereafter from the first day of the Christmas school vacation until December 26.
* * *
Acting pursuant to this order the defendant took the children to Arkansas. She did not return them on the date specified in the Maryland order. The plaintiff was compelled to go to Arkansas to seek relief there. He received an order of the Arkansas Court following a hearing directing the defendant to turn the children over to him forthwith. This order was dated January 26, 1969. The following day the defendant removed the children to Atlanta, Georgia. She then spent about two weeks with them there and then came to Kentucky to this Court to file her amended and supplemental complaint. The children were finally delivered over to the plaintiff on February 14, 1969. . . .
An order was entered by the Prince George Circuit Court on January 28, 1968, holding Mrs. Fitzgerald in contempt of that Court for failure to comply with the order of December 23, 1968. The order further provided that Mrs. Fitzgerald’s rights of custody, visitation privileges, and support payments referred to in said order were held suspended until further orders of that Court.
* * *
The conduct of the defendant seems to this Court to be one of self-help in taking the law into her own hands. She deliberately disobeyed the orders of the Maryland Court and the Arkansas court. She and her present husband are not persons of limited means nor are they unversed in the field of domestic relations law. They were represented by lawyers in Maryland. They were represented by a lawyer in Louisville. They had counsel in Arkansas. The conduct of the defendant appears to this Court to be not only contemptuous of two other Circuit Courts of this nation but indicative of a campaign of harassment which is made possible by the financial resources of her new husband.
* * *
These children need more than anything a firm fixed base and periods of visitation with their secondary custodian which will not basically disturb their relationships with their primary custodians. The motion for a change in custody is overruled.
* * *
It is believed to be appropriate at this time to comment upon the jurisdiction of this Court and on the Doctrine of Forum Non Conveniens. This Court, of course, has jurisdiction under the continuing jurisdiction rule. See Batchelor v. Fulcher, 415 S.W. 2d 828 (Ky., 1967). As pointed out in that case, there are three concurrent bases of jurisdiction in cases of child custody. They are: domicile of the child in the state,.presence of the child in the state; and personal jurisdiction over the contending parties. In this case the only real contact that this Court has with the parties arises out of the previous proceedings in this Court and neither one of them lives in Kentucky nor do the children.
In the case of Walden vs. Johnson, 417 S.W. 2d 220 (Ky.1967) at Page 223 it was pointed out that the right to control infants should be exercised only when a state has acquired a recognizable parens patriae interest in the child predicated upon bona fide residence or domicile. The domicile of the Edrington children and their residence is in Maryland. The Maryland Court has every advantage over this Court in being able to enlist the help of neighbors, doctors, teachers and other persons who are familiar with the living conditions of the Edrington children in making any further determinations of what is best for them. These observations are made purely for the purpose of obviating future litigation in this Court subject to the condition that the Maryland Court will hold that it does have jurisdiction over the subject matter notwithstanding the presence of the plaintiff on a military base in that state, it being the understanding of this Court that the matter has been raised in the Maryland Court by Mrs. Fitzgerald and will be adjudicated by that Court.”

Mrs. Fitzgerald appealed this decision to the Kentucky Court of Appeals and that court in affirming the trial court, among other things, said:

“Appellant’s next point questions the propriety of that part of the judgment relating to future jurisdiction of this controversy. While the judgment does not mention this question, it adopts the findings of fact and conclusions of law which suggest that the Maryland courts should logically have jurisdiction. In dealing with this question the chancellor said: ‘These observations are made purely for the purpose of obviating future litigation in this Court subject to the condition that the Maryland Court will hold that it does have jurisdiction over the subject matter * * * . ’ It was unnecessary that the chancellor embody this language in his findings, although it may have been a gratuitious and beneficial ‘observation.’ Of course, this part of the judgment is not binding on any court of the Commonwealth in the future for the simple reason that we cannot foretell future circumstances and conditions that may determine the question of jurisdiction.”

It appears that Mrs. Fitzgerald continued to file petitions or motions for change in custody and visitation rights in the Jefferson Circuit Court while she was a resident of Arkansas and Mr. Edrington and the children resided in Indiana. On December 20, 1973, the Kentucky Court entered an order reciting that Edrington and his Indiana counsel had been notified of the hearing by registered letter delivered on December 16. The order recited that Mrs. Fitzgerald resides in Arkansas; that she had driven 600 to 800 miles to Kentucky for the hearing on her motion and if the motion should be granted, she would have to drive to Indiana for the children before returning with them to her home in Arkansas. The court then, by order signed by The Honorable Richard A. Revell, Judge, recited as follows:

“The respondent, Barbara Fitzgerald (formerly Edrington) may have the two infant children, James L., Jr. and Marcelle, with her for visitation purposes from December 20, 1973, until January 7, 1974, or such time as school reconvenes, if earlier, and for such purposes may take said children with her out of the State of Indiana to her home in Arkansas. The respondent shall be responsible to see that said children are returned to their father, the petitioner, on the day before school begins.”

On December 21 Mrs. Fitzgerald filed the Kentucky Court order in the Washington County Indiana Circuit Court and on short notice to James Edrington’s Indiana attorney, obtained an order of the Indiana Court giving full faith and credit to the Kentucky Court order and obtained an order from the Indiana Court for the delivery of the possession of the children to her. The order provided in part as follows:

“That the Sheriff of Washington County forthwith pick up the children, James L. Edrington, Jr. and Marcelle Sabrina Edrington, and deliver them to the possession of Barbara M. Fitzgerald for visitation in accordance with the Judgment of the Jefferson Circuit Court.
This judgment may be executed immediately.”

The possession of the children was delivered to Mrs. Fitzgerald under this order and she returned with them to her home in Arkansas.

Instead of returning the children to Mr. Edrington in Indiana on January 7, as directed and ordered by both the Kentucky and Indiana Courts, Mrs. Fitzgerald on January 7, 1974, again filed a motion in the Jefferson Circuit Court for a change in custody. On January 28, 1974, the Jefferson Circuit Court entered an order which, among other things, extended the visitation period to March 11, 1974, when the motion for change in custody would be heard and ordered Mr. Edrington to reimburse Mrs. Fitzgerald certain expenses in traveling from her home in Arkansas to the Kentucky Court hearing.

On January 17, 1974, in connection with Mrs. Fitzgerald’s petition for possession of the children under the Kentucky Court order, the Washington Circuit Court in Indiana made the following “Entry:”

“It is therefore ORDERED, ADJUDGED AND DECREED as follows:
1. That the Defendant James Edrington has been in compliance with all prior orders of the Circuit Court of Jefferson County, Kentucky, and the Circuit Court of Prince George’s County, Maryland, in bringing the parties’ minor children into the State of Indiana.
2. That the Defendant James Edrington and the parties’ minor children are residents and domiciliaries of the State of Indiana.
3. That the Washington Circuit Court has jurisdiction of the Defendant and the parties’ minor children, by virtue of their residence and domicile.
4. That the Washington Circuit Court does now accept jurisdiction of this cause and all matters pertaining to the present and future custody of the parties’ minor children.
5.That the Plaintiff’s, Barbara M. Fitzgerald’s, petition shall be denied.
6. That the order of this Court heretofore entered on the 21st day of December, 1973, granting full faith and credit to the Kentucky judgment is in error and is hereby set aside and declared null and void.
7. That the parties ’ minor children have not been returned to the Defendant James Edrington, as promised to the Washington Circuit Court by Plaintiff’s counsel, and that the children shall now be immediately returned to the Defendant’s custody.
8. That the parties’ minor children are being illegally detained in the State of Arkansas or the State of Kentucky and that said children shall be immediately returned to the Defendant.”

Edrington filed his petition for habeas corpus in the Lonoke County Chancery Court. A hearing was had thereon on February 14, 1974, and on February 21 the chancellor entered a decree denying the petition. Apparently the chancellor felt that the Kentucky rather than the Indiana Court had jurisdiction in this case, and the Kentucky Court order rather than the Indiana Court order was entitled to full faith and credit in this case.

On trial de novo we are of the opinion the chancellor should have granted the petition for habeas corpus. Even if this were truly a conflict of laws case requiring a determination of whether full faith and credit must be given to a foreign court order or decree, we have held contrary to Mrs. Fitzgerald’s interest in this case.

In the case of Keneipp v. Phillips, 210 Ark. 264, 196 S.W. 2d 220, Mrs. Phillips was divorced from her former husband in Indiana in 1944 and the custody of a child was awarded to her. After her marriage to Mr. Phillips she became domiciled in Fayetteville, Arkansas, and in August, 1945, she brought the child to Arkansas where he lived with her and his stepfather. On September 11, 1945, the child’s father in Indiana applied to the Indiana Court that had rendered the divorce decree for a modification of the decree for custody of the child and, on September 26, 1945, an order was entered by the Indiana Court modifying its former decree as to custody and awarding the custody of the child to his aunt, Mrs. O. M. Dennison, as requested by the father. There was no personal service on Mrs. Phillips in Indiana in connection with the modification order. On November 14, 1945, the appellants, father and aunt of the child, filed suit as plaintiffs in the Washington Chancery Court of Arkansas to have the custody of the child awarded to the aunt as was decreed by the Indiana Court. The Washington Chancery Court denied the petition and in affirming the decree on appeal to this court we said:

“As to the effect to be given the modified decree, supra, procured by appellant, husband, while his son and former wife were residents of Fayetteville, Arkansas, the general rule, as well as that declared here by this court, is that it has no extraterritorial effect beyond the boundaries of Indiana where it was rendered, and that when the domicile of a child is changed and it becomes a citizen of another state, as in the present case, such child is no longer subject to the control of the courts of the first state. In the Tucker v. Turner case, supra, this court announced the rule, continuing the quotation from § 417 Ruling Case Law, supra: ‘Nor is a decree of a court of one state awarding the custody of a child binding upon the courts of another state under the full faith and credit clause of the federal constitution after the child had become domiciled in the latter state. Such a decree as to a child has no extraterritorial effect beyond the boundaries of the state where it is rendered, and the courts of the second state will not remand the child to the jurisdiction of another state, especially where it is against the true interest of the child. The reason for this rule is found in the fact that children are the wards of the court and the right of the state rises superior to that of the parents. Therefore, when a child changes his domicile and becomes a citizen of a second state, he is no longer subject to the control of the courts of the first state.’ ”

The Kentucky Circuit Court recognized as far back as July, 1969, that all the parties including the children had become nonresidents of the state and that court’s only jurisdiction at that time was based on the original divorce proceeding more than eleven years ago. It is true that the Kentucky trial Court went further than was necessary to the issues before it in reciting the three concurrent bases for jurisdiction in cases of child custody as set out in Batchelor v. Fulcher, 415 S.W. 2d 828, but that court concluded that the courts in the state of the children’s domicile were best suited and equipped to determine their custody on changed conditions, and we reach the same conclusion.

It is conceded by all parties concerned that the bona fide domicile of Mr. Edrington is in Indiana and that of Mrs. Fitzgerald is in Arkansas where they have lived for some time. It is also obvious that Mr. Edrington has the legal custody of the children and they have lived with him in Maryland and Indiana at all times except while visiting Mrs. Fitzgerald in Arkansas under temporary court orders of Maryland and Indiana where Mr. Edrington and the children were domiciled.

The length of this opinion is occasioned by the fact that Mrs. Fitzgerald is domiciled in this state and the custody of the children will be subject to judicial review for some time before they reach their majority. It is thought that perhaps this opinion may be of some value as a guide in avoiding quick orders on short notice and possible future litigation in this case. The decree of the chancellor is reversed and this cause is remanded with directions to grant the petition for habeas corpus, together with the necessary orders for enforcing same.

Reversed and remanded.

BROWN, J., concurs.

        Edrington v. Edrington, 459 S.W. 2d 141.


author: George Rose Smith, Justice.

text:
    WESOC CORPORATION et al v. ARKANSAS STATE HIGHWAY COMMISSION
    73-273
    514 S.W. 2d 212
    Opinion delivered October 7, 1974

      John C. Calhoun Jr. and Owens, McHaney & McHaney, for appellants.

      Thomas B. Keys and Kenneth R. Brock, for appellee.
   George Rose Smith, Justice.

Upon bringing this condemnation suit the highway department deposited $16,500 as estimated just compensation. The defendants’ testimony put the figure at about three times that amount. In appealing from a verdict and judgment for $21,500 the defendants argue that the trial court erred in the admission and exclusion of evidence.

The defendant-appellants are the owner, the lessee, and the sublessee of a filling station at the corner of State Line Avenue (a major thoroughfare) and 24th Street in Tex-arkana. The highway department, in order to widen State Line, is taking a strip about 17 feet wide and about 140 feet long. The strip includes three self-service pumps, a large canopy, signs, wiring, and other fixtures. After the taking, according to the landowners’ proof, the usuable area along State Line Avenue will be so narrow that the service station building and its appurtenances will have to be moved farther back from the street.

Evidence of relocation costs is admissible, not as the measure of damages but as an aid to the jury in its determination of before and after values. Ark. State Highway Commn. v. Carpenter, 237 Ark. 46, 371 S.W. 2d 535 (1963). To establish those costs the landowners relied upon the testimony of Ray Gammill, a Texarkana general contractor who had built more than a hundred service stations in Arkansas during the preceding 24 years. Gammill had been the low bidder for this relocation job. He testified that the costs would be $34,549.

The trial judge, on motion by the condemnor, struck Gammill’s estimate of costs, on the dual ground that it included the expense of repainting the building after its removal and that it included a provision for a temporary office during the removal. Upon further redirect examination Gammill explained that repainting was a necessary part of the relocation expense, because the metal building would unavoidably be scarred in the dismantling and re-erection process. Gammill also fixed the temporary office expense at $200.

The court was wrong in refusing to change its ruling upon the motion to strike, in view of Gammill’s additional testimony. If, as Gammill asserted without contradiction, repainting was an essential step in the relocation of the structure, then that flaw in his testimony had been corrected. In such a situation it is proper for the testimony to be offered again. Jones v. Railway, 53 Ark. 27, 13 S.W. 416, 22 Am. St. Rep. 175 (1890). Upon the other point, the $200 item could easily have been subtracted if the court decided to disallow it. In fact, that is the correct procedure when an expert witness specifies an amount improperly included in his valuation. Ark. State Highway Commn. v. Wallace, 247 Ark. 157, 444 S.W. 2d 685 (1969). Thus there was no sound basis for the court’s refusal to reconsider its initial ruling and admit into evidence the witness’s estimate of relocation costs.

The appellants’ second point for reversal stems from the trial courCs action in striking Gammill’s estimate of the reproduction cost of the building, on the ground that the landowners’ counsel did not intend to qualify Gammill as a valuation expert. Counsel were right, for the reason stated in Jahr’s Law of Eminent Domain, § 157 (1953):

“After the proof [by a building expert] is presented, it is important to remember that the building expert cannot testify to market value. He knows what it would cost to reproduce the improvement and he should not hesitate to admit his lack of knowledge of what the improvement could be sold for. The real estate witness testifies as to the amount the improvement enhances the market value of the land.”

The recommended procedure was followed in the court below. After Gammill’s estimate of reproduction costs had been erroneously stricken, counsel recalled an expert real estate witness and, in chambers, made an offer of proof based upon Gammill’s estimate. The testimony of both witnesses should have been admitted. In view of our ruling upon this point it seems to be unnecessary for us to consider the alternative argument that the real estate expert should have been allowed to base his testimony upon what he had learned about the original cost of the building.

A new trial being necessary, two other points must be mentioned. The court did not abuse its discretion in refusing to strike the testimony of the condemnor’s witness Shockley. Shockley’s estimate of reproduction costs was based upon conversations with local builders — a procedure that was approved in Ark. State Highway Commn. v. Bradford, 252 Ark. 1037, 482 S.W. 2d 107 (1972). Shockley’s vagueness about some particulars doubtless affected the weight of his testimony, but it cannot be said that he had no reasonable basis for his conclusions.

The landowners, in relocating the station, planned to put all the pumps along State Line Avenue rather than putting some of them along 24th Street, a less important thoroughfare. A witness for the highway department was allowed to testify that in the construction of a competing service station at the same intersection pumps had been installed along both streets. This was error, in the absence of a showing of points of similarity in addition to mere proximity. It was, of course, proper for the witness to testify in general terms, as he did, about prevailing practices with regard to the location of such pumps.

Reversed.


text:
    ALPHA CONTROLS ENGINEERING, Inc., et al v. FLAGMASTER, Inc.
    74-103
    514 S.W. 2d 223
    Opinion delivered October 7, 1974

      Pearson & Woodruff, for appellants.

      Paul Jameson and Charles W. Atkinson, for appellee.
   Lyle Brown, Justice.

Our Supreme Court Rule 9 (d) provides, among other things, that the appellants provide an abstract of the record as is necessary to an understanding of all questions presented to us for decision. The Rules of the Supreme Court are to be found in Ark. Stat. Ann., Vol. 3A, 1962 Replacement, beginning at page 102 of the 1973 pocket supplement.

This case is affirmed for failure to comply with the recited portion of Rule 9 (d). The trial court entered a detailed judgment consisting of four pages. The judgment sets out many specific findings of facts and conclusions of law covering the numerous facets of the case. (The case was tried to the court without a jury.) Appellant’s abstract of the judgment consists of ten lines which actually is an abstract only of the last paragraph of the court’s judgment. An abstract of all the specific findings of the court is necessary to an understanding of the issues to be decided.

We do not consider our action unduly harsh because a majority of the court would have affirmed on the merits had they been reached.

Affirmed.


text:
    PEOPLES PROTECTIVE LIFE INSURANCE Company v. Virginia SMITH
    73-293
    514 S.W. 2d 400
    Opinion delivered October 7, 1974
    [Rehearing denied November 4, 1974.]

      Rose, Nash, Williamson, Carroll & Clay, by: Phillip Carroll, for appellant.

      Matthews, Pnrtle, Osterloh & Weber,by:Gail 0. Matthews, for appellee and cross-appellant Virginia Smith; Wright, Lindsey & Jennings, by: James M. Moody, for cross-appellant Progressive National Life Ins. Co; Givens & Buzbee, by. John R. Buzbee, for Moore Ford Co.
   John A. Fogleman, Justice.

Appellee Virginia Smith is the widow of Clarence C. Smith, who died on March 4, 1972 of cancer which had caused him to be totally disabled after June 18, 1970. Smith had been employed by Moore Ford Company for a number of years. He was covered by a group life and health insurance policy issued by Mid-West National Life Insurance Company, predecessor of Progressive National Life Insurance Company, covering the employees of Moore Ford Company. On January 1, 1971, a new group policy covering these employees was obtained by Moore Ford Company. This policy, providing certain medical benefits and $6,000 life insurance to employees of Moore Ford was issued by appellant, Peoples Protective Life Insurance Company.

This appeal involves the question whether Clarence C. Smith came within the coverage of a group life and health insurance policy issued by Peoples Protective Life Insurance Company to Moore Ford Company. Appellant contends that the judgment against it should be reversed because:

I
There was no coverage for Smith under the Peoples Protective policy.
II
Smith’s ineligibility under the group policy was not waived.

Mid-West issued a group health and life insurance policy to Moore and a certificate to Smith, with appellee as beneficiary. When Peoples Protective issued the policy sued on, it also issued a certificate to Smith, with appellee as beneficiary. The Mid-West policy, which lapsed for nonpayment of premiums about 20 days after the Peoples Protective policy was issued, contained a provision by which premiums were waived in case of total disability.

The Peoples Protective policy contained the following pertinent provisions:

DECLARATIONS PAGE 1
2. All Full-Time Employees to be eligible are all active employees less than 65 years of age. Full-Time employees shall be those who work 30 or more hours a week for the employer.
3. (A) All present Full-Time Employees who have completed 1 month employment on the Effective Date of this Policy shall be eligible immediately; all other Full-Time Employees shall be eligible upon completion of 1 month employment.
PART I ELIGIBILITY
An Eligible Employee shall be an employee of the Employer and of any subsidiary and any affiliate company who qualifies under Statements 2 and 3 of the Declarations Page for whom benefits are indicated in Statement 6 of the Declarations Page.
PART II EFFECTIVE DATE OF INSURANCE
If any Eligible Employee is required to contribute toward the premium for all or a part of his insurance as indicated in Statements 7 and 9 of the Declarations Page, each such employee, as a condition to becoming insured for such contributory insurance, shall make written request to the Employer on a form approved by the Company and shall agree thereon to contribute the amount required for the insurance to which he is or may become entitled. The effective date of such insurance for such an Eligible Employee, subject to the further provisions of the Part, shall be as follows:
1. If such request for insurance is made by the employee on or before the date he becomes eligible, the effective date shall be the date he becomes eligible.
2. If such request for insurance is made by the employee within 31 days after he becomes eligible, the effective date shall be the date of his request or
3. If such request for insurance is made by the employee after the end of 31 day period following the date he is eligible or is made after a previous termination of insurance because of failure to make his contribution when due, the employee shall be required to submit evidence of insurability, including good health, satisfactory to the Company and without expense to it. The effective date of his insurance shall be a date designated by the Company after the Company determines the evidence to be satisfactory.
In any case in which the employee is not actively at work on the date his insurance would otherwise become effective, the effective date of his insurance shall be the date of his return to full-time work.
EMPLOYER NOT COMPANY'S AGENT:
The Employer shall in no event be considered the agent of the Insurance Company for any purpose under this Policy.
AMENDMENT AND CHANGES:
No agent is authorized to alter or amend this policy, or to waive any conditions or restrictions herein, or to extend the time for paying a premium. This policy may be amended at any time by mutual agreement between the Employer and the Company without consent of the employees insured, but without prejudice to any loss incurred prior to the date to which premiums have been paid. No person except the President, Vice President, or Secretary, or Assistant Secretary of the Company has authority on behalf of the Company to modify the policy or to waive any of the Company's rights or requirements.

It was shown that, after Smith became disabled, he went to work again in July, 1970, and worked for some five or six weeks, but that he was not working when the Peoples Protective policy was issued or at any time thereafter. Both policies were contributory. As long as Smith worked, his portion of the premiums due Mid-West (later Progressive) was withheld from his pay. Thereafter, Smith paid the full premium to Moore Ford Company and Moore remitted it to its insurance carrier along with the premiums paid on other employees. His name was never stricken from the records of Moore Ford as an active employee. He was reported to appellant by Moore Ford as if he were a full-time employee. In January 1971, when its policy was issued, the certificate issued to Smith by Peoples Protective recited life insurance benefits of $6,000. Appellant paid a claim submitted by Smith for medical expenses when Smith was treated in a hospital after the issuance of its policy.

United Financial Services was an agent for Mid-West and for Peoples Protective. Hale Allen was President of the agency and Scott Goodman was a stockholder and soliciting agent of United Financial Services. United Financial Services received an “override” on all policies written by it for Mid-West. Goodman was paid commissions by United Financial Services. Hale Allen, president of the agency, testified that it had no authority to extend coverage beyond the terms of the policy. Scott Goodman negotiated both the Mid-West and Peoples Protective policies. According to Smith's daughter, Goodman advised the Smith family that a change in insurance carriers was contemplated by Moore Ford, but that, because of the non-cancellable clause in the Mid-West policy, they should never let his name be dropped from the group, and that they should continue to pay the premiums, regardless of benefits or costs.

Sometime prior to the issuance of the Peoples Protective policy to Moore Ford Company, Progressive National had discontinued the writing of health policies and requested a change in carriers but had been willing to continue the coverage if Moore desired that it do so. Hale Allen, president of United Financial Services, notified Progressive National of the change in carriers. The death benefits under the earlier policy terminated January 20, 1971, but Smith, who was 62 years of age, was not eligible for extended insurance which would have been available to him had he been under 60. Even though several claims had been filed by Smith under this policy, there had been no waiver of premium, to which Smith would have been entitled upon termination of employment by total disability. This company was never notified that Smith’s employment was terminated. He had a privilege of conversion of the life insurance coverage under this policy by applying to Progressive National.

Scott Goodman was aware that Smith had terminal cancer and sometime between June and December 31, 1970 had a conversation with the employee of Moore Ford who kept the company records with regard to claims and premiums on the group insurance policies. According to her, Goodman said that he had told the Smith family to continue the coverage and pay the premium directly to Moore Ford.

There was no evidence that Peoples Protective was ever actually notified of Smith’s condition, except by the medical claims submitted to it.

I

The basic premise of the circuit court’s holding that there was coverage is that Peoples Protective Insurance Company assumed all coverage previously afforded under the Mid-West contract, and that there was no evidence tc the contrary. We respectfully disagree with the learned circuit judge. In the first place, appellee had the burden of proving coverage. State Farm Fire & Casualty Co. v. Rice, 241 Ark. 201, 406 S.W. 2d 880; Southern Farm Bureau Casualty Insurance Co. v. Reed, 231 Ark. 759, 332 S.W. 2d 615, Phoenix Assurance Co., Ltd. v. Loetscher, 215 Ark. 23, 219 S.W. 2d 629; State Farm Mutual Automobile Insurance Co. v. Belshe, 195 Ark. 460, 112 S.W. 2d 954; Atlas Life Insurance Co. v. Bolling, 186 Ark. 218, 53 S.W. 2d 1, 46 C.J.S. 399, Insurance, § 1316 (6); 19 Couch on Insurance 2d 639, § 79:344 (1968). Annot: 68 A.L.R. 2d 8, 145; 68 A.L.R. 2d 150, 204 (1959).

The policy clearly defined eligibility for coverage. There is no evidence that Smith ever qualified for coverage under the policy. He could not have qualified for coverage until the date of his return to full-time work — which never came. See Hargraves v. Continental Assurance Co., 247 Ark. 965, 448 S.W. 2d 942. We find no substantial evidence that appellant assumed the Mid-West coverage. It is quite clear that Scott Goodman was a soliciting agent only and that neither United Financial Services nor Hale Allen had the authority to issue policies or extend coverage beyond the terms of the policy. The only evidence on the subject is the testimony of Allen, who categorically stated that all policies sold by United Financial Services were subject to approval by the home office, that all premiums were paid directly to the company and that United Financial Services was an agent which could sell policies and collect commissions on the sale. He said that he had not suggested that his agency had the power to waive contractual terms, or to issue insurance on risks otherwise unacceptable to Peoples Protective or to infer that United Financial Services was a general agency empowered to issue policies. This not only fails to constitute evidence of actual authority, it falls far short of showing any basis for a finding of ostensible authority to bind the company. Certainly, it cannot be said that Scott Goodman had any such authority, even if the ambiguous statement attributed to him could be stretched to carry an inference that coverage of Smith was greater than indicated by the terms of the policy.

The only evidence relating to the assumption by Peoples Progressive of Mid-West obligations was given by Hale Allen in response to this question by appellee’s attorney:

Can you tell me whether or not as a matter of practice that when one policy is terminated and another one is taken up that the second company takes up the claims for the first one and continues the coverage?

The response was admitted over appellant's objection, with a statement by the circuit judge that the objection was probably correct. The answer and further testimony on this score was as follows:

As a matter of practice, yes, in transfering one group case from one carrier to another you don't expect to have a lapse in coverage.
By Mr. Matthews (claimant’s attorney):
Q. In other words, if you’re going to write insurance for a business or something you’ve got to continue their coverage, is that not right?
A. Yes sir.

This testimony was not admissible, but it was obviously considered by the circuit judge in reaching his conclusions. Even if admissible it was not substantial evidence of assumption of the risk on Smith. To have been sufficient, the evidence must have shown that the custom was certain, uniform, definite and known. St. Louis I.M. & S. Ry. Co. v. Wirbel, 108 Ark. 437, 158 S.W. 118. It must have been known to both parties or of such widespread usage that the contract will be presumed to have been made in reference to it. Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S.W. 2d 762.

Although evidence of custom may be shown to explain an ambiguity in a contract, it cannot be invoked to defeat, contradict, or vary express terms of the contract. Farmers Cooperative Association v. Phillips, 243 Ark. 809, 422 S.W. 2d 418; Arkansas Power & Light Co. v. Thompson, 191 Ark. 171, 83 S.W. 2d 838; Lindsey v. Pierce Petroleum Corporation, 181 Ark. 841, 28 S.W. 2d 56; Ozark Badger Co. v. Roberts, 171 Ark. 1105, 287 S.W. 401. Muse v. Eastham, 141 Ark. 295, 217 S.W. 15. It is not admissible to defeat or vary the plain and unambiguous terms of an insurance contract. Runyan v. Runyan, 101 Ark. 353, 142 S.W. 519.

Appellee bore the burden of proving that Peoples Protective assumed the obligations of Progressive National on the insurance contract issued by Mid-West, and that burden could not be met by incompetent evidence. Capital Fire Insurance Co. v. J. H. Davis & Son, 93 Ark. 179, 124 S.W. 520. Appellee did not meet her burden of proof.

II

The trial court’s finding of waiver and estoppel was based upon two statements of a claim for medical benefits filed on two forms furnished by appellant. The first claim submitted in February 1972 was rejected and returned because medical bills necessary to support the claim were not attached. On the first form Smith’s disability was described as “Cancer-asso-Sarcoma.” In a blank opposite the words “First full day unable to work” the response “March, 1970” was written. Thereafter, the second claim form submitted was received by appellant on March 21, 1972, some 17 days after Smith’s death. This claim was paid, but the form did not contain any statement at all about the time Smith was first unable to work. There was no suggestion in either form that Smith did not work many full days after March, 1970, or that he was disabled from that date on. As a matter of fact he was not. The undisputed evidence shows that Smith worked during 1970 in June, perhaps July, and possibly even later. It was entirely possible, so far as appellant knew, that Smith had worked at a time which made him eligible.

Although the circuit court recognized that the doctrine of waiver and estoppel cannot be invoked to extend coverage and thereby bring into existence a contract not made by the parties, it held that the payment of a claim for medical benefits brought the doctrine into play. We agree that coverage in a contract of insurance cannot be extended by waiver or estoppel, but not that the payment of medical expenses changed the situation so as to accomplish this result. This proposition is thoroughly treated in 18 Couch on Insurance, 2d 32, 33, §§ 71:39, 71:40, viz:

$$$$$
The doctrine of waiver or estoppel cannot be given the effect of enlarging or extending the coverage as defined in the contract, nor can it create a contract of insurance, since a cause of action cannot be based on a waiver.
The doctrine of waiver or estoppel, based upon the conduct or action of the insurer, is not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom, and the application of the doctrine in this respect is to be distinguished from the waiver of, or estoppel to deny, grounds of forfeiture. That is, conditions going to the coverage or scope of the policy, as distinguished from those furnishing a ground for forfeiture, may not be waived by implication from conduct or action, without an express agreement to that effect supported by a new consideration.
*****
A cause of action cannot arise on the theory of es-toppel. This follows from the fact that an estoppel is defensive in character. It does not create a cause of action. Its function is to preserve rights and not to bring into being a cause of action.
An insurer may waive a defense by his conduct and become estopped to thereafter assert it, but in any case estoppel operates to preserve rights already acquired and to prevent forfeitures or avoidance of duties, but not to create new rights or new causes of action.
Similarly, it has been said that the doctrine of es-toppel is protective only and may be invoked as a shield but not as a weapon of offense. It is not effective to create a cause of action and should not be used for gain or profit.

Smith was excluded from coverage by specific language in the policy. In Hartford Fire Insurance Co. v. Smith, 200 Ark. 508, 139 S.W. 2d 411, we said:

***** -phe doctrine of waiver and estoppel cannot be asserted to extend coverage under a contract in which it was excluded by specific language. Miller v. Illinois Bankers’ Life Ass’n., 138 Ark. 442, 212 S.W. 310, 7 A.L.R. 378; Mutual Ben. Health & Acc. Ass’n. v. Moore, 196 Ark. 667, 119 S.W. 2d 499; John Hancock Life Insurance Co. v. Henson, [199 Ark. 987], 136 S.W. 2d 684.

A contention similar to those of appellee was considered and rejected in Bankers National Insurance Co. v. Hembey, 217 Ark. 749, 233 S.W. 2d 637. We said:

It is true that prior to institution of this suit appellant rejected appellee’s claim of disability on the exclusive ground that hernia was an excepted risk, and this exception clause was not specifically pleaded. If Part A, when considered in connection with Part E, merely dealt with a ground of forfeiture, appellant might be held to have waived such forfeiture under the rule that where an insurer denies liability for a loss on one ground, at the time having knowledge of another ground of forfeiture, it cannot thereafter insist on such other ground if the insured has acted on its asserted position and incurred prejudice or expense by bringing suit, or otherwise. 29 Am. Jur., Insurance § 871. But Part A, as related to Part E, sets forth the scope or coverage of the policy and not merely a condition, the breach of which may be a ground of forfeiture. The rule is that, while a forfeiture of benefits contracted for may be waived, the doctrine of waiver or estoppel cannot be invoked to extend the coverage and thereby bring into existence a contract not not made by the parties. Miller v. Illinois Bankers’ Life Ass’n., 138 Ark. 442, 212 S.W. 310. Hartford Fire Ins. Co. v. Smith, 200 Ark. 508, 139 S.W. 2d 411; 45 C.J.S. Insurance, § 674a. Cases pointing out this well recognized distinction are collected in an annotation in 113 A.L.R. 857. We, therefore, conclude that appellee was not entitled to disability benefits under Part E of the policies.

In Life & Casualty Insurance Company of Tenn. v. Nicholson, 246 Ark. 570, 439 S.W. 2d 648, we said:

It is well settled in this state that the doctrines of waiver and estoppel, based upon the conduct or action of the insurer, cannot be used to extend the coverage of an insurance policy to a risk not covered by its terms or expressly excluded therefrom. Hartford Fire Insurance Co. v. Smith, 200 Ark. 508, 139 S.W. 2d 411; Metropolitan Life Insurance Company v. Stagg. 215 Ark. 456, 221 S.W. 2d 29; Bankers National Insurance Co. v.Hemby, 217 Ark. 749, 233 S.W. 2d 637. This is not a case where forfeiture is attempted by the insurance company but is a question as to the extent of the coverage of the policy. Consequently, there is no support for a finding of waiver.

Later, in Batesville Insurance & Finance Company v. Butler, 248 Ark. 776, 453 S.W. 2d 709, we made these appropriate remarks:

Butler’s second point on cross-appeal is that U.S.F. & G. should be estopped from denying the coverage in question because of the representations of its agent, the Batesville Insurance & Finance Co., Inc. In making this argument, Butler has shown us no reason to overrule our many decisions holding that the doctrines of waiver and estoppel, based upon conduct or action of an insurer, cannot be used to extend coverage of an insurance policy to a risk not covered by its terms or expressly excluded therefrom. Life & Casualty Insurance Co. v. Nicholson, 246 Ark. 570, 439 S.W. 2d 648 (1969). Furthermore, the only authority, apparent or otherwise, shown to have been delegated to the agent was to countersign and issue policies and riders on printed forms when the proper premium was paid. This falls far short of apparent authority to extend the risk contained in a printed policy by an oral representation as suggested by cross-appellant.

In view of these authorities, the evidence pertaining to the payments of a claim cannot constitute substantial evidence of coverage, even if it could be said to have any probative force in that regard.

Since there is no substantial evidence to support the judgment holding Peoples Protective liable to appellee, we must reverse that judgment. That part of the case has been fully developed, so it must be dismissed.

Appellee cross-appealed, however, from that part of the judgment dismissing her complaint against Progressive National and Moore Ford Company. No reason for the dismissals is. given in the judgment or the court's memorandum opinion. It appears, however, that the basis for this action may have been the finding that Peoples Protective had assumed the coverage formerly afforded Progressive National. Appellee quite frankly states that her cross-appeal is an alternative to an affirmance and that she has been unable to determine whether it is proper. Appellee has not stated any basis for holding Moore Ford liable to her. The mere allegation in her complaint that Moore Ford’s failure to pay premiums or transfer coverage is hardly sufficient. Nothing in the evidence shows that Moore Ford failed to pay any premiums or that it had any obligation to transfer coverage.

The basis asserted in appellee’s complaint for holding Progressive National Insurance Company liable appears to be the provision for waiver of premiums in case of total disability, coupled with a conversion clause in the policy originally issued by Mid-West and with a clause for extended death benefits. The “extended insurance” provisions were not available to Smith, because he did not become totally disabled before he became 60 years of age. Furthermore, no proof of total disability required by these provisions was ever furnished Progressive National. Smith never applied for conversion of the group life insurance under the Mid-West policy as required by the unambiguous terms of the policy.

Appellee, as cross-appellant, had the burden of demonstrating to this court that the trial court committed error in dismissing the complaint as to cross-appellees. Holt v. Holt, 253 Ark. 456, 486 S.W. 2d 688; Poindexter v. Cole, 239 Ark. 471, 389 S.W. 2d 869. Every judgment of a court of competent jurisdiction is presumed right unless the party aggrieved affirmatively shows it was erroneous. Clow v. Watson, 124 Ark. 388, 187 S.W. 175. See also Embry v. Neighbors, 139 Ark. 313, 213 S.W. 741. Appellee has also failed to meet this burden.

Since we find no basis for liability of either Peoples Protective Insurance Company, Progressive National Insurance Company or Moore Ford Company, and since the case has been fully developed, we must dismiss the action. The judgment is reversed on direct appeal, affirmed on cross-appeal and the cause is dismissed.

Jones and Byrd, JJ., dissent as to the reversal.

Holt, J., not participating.

      Goodman denied that he had anything to do with the change of carriers or even knew of it until after it had been accomplished. In stating the facts, however, we have drawn all possible inferences and resolved all conflicts favorably to the appellee. Goodman admitted having advised the Smith family when he went to the home to fill out a medical claim form at a time not later than the early fall of 1970, that there were conversion privileges under the Mid-West policy.


author: John A. Fogleman, Justice. Carleton Harris, Chief Justice, Conley Byrd, Justice,

text:
    EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES v. Willie RUMMELL
    74-129
    514 S.W. 2d 224
    Opinion delivered October 7, 1974

      Rose, Nash, Williamson, Carroll & Clay, by: Phillip Carroll, for appellee.

      McMath, Lealherman & Woods, P.A., for appellee.
   John A. Fogleman, Justice.

Appellant challenges the reasonableness of a Si0,000.00 allowance to Willie Rummel for attorney’s fees under Ark. Stat. Ann. § 66-3238 (Repl. 1966). No evidence was presented on the matter. The allowance was made by the trial judge after considerable argument of counsel on the subject. No issue is raised as to the propriety of this procedure. But see, Union Central Life Insurance Co. v. Mendenhall, 183 Ark. 25, 34 S.W. 2d 1078. Cf. Unionaid Life Insurance Co. v. Bank of Dover, 192 Ark. 123, 90 S.W. 2d 982.

The fee allowance must be reasonable. Ark. Stat. Ann. § 66-3238. Aetna Life Insurance Co. v. Taylor, 128 Ark. 155, 193 S.W. 540. Trammel, One State’s Experience with the Statutory Remedy for Insurer’s Delays - A Problem in Payment, 10 Ark. L. Rev. 439, 462 (1956). Under the circumstances here, however, the judgment must be affirmed unless appellant demonstrates, or the record shows, that the allowance is excessive. American Insurance Co. of Newark v. Dutton, 183 Ark. 595, 37 S.W. 2d 875; Union Life Insurance Co. v. Brewer, 228 Ark. 600, 309 S.W. 2d 740.

The fee is allowed only to reimburse an insurance policyholder or beneficiary for expenses incurred in enforcing the contract and to compensate him in engaging counsel thoroughly competent to protect his interests. John Hancock Mutual Life Insurance Co. v. Magers, 199 Ark. 104, 132 S.W. 2d 841; Vaughan v. Humphreys, 153 Ark. 140, 239 S.W. 730, 22 A.L.R. 1201. It is not the property of the attorney, but is indemnity to the litigant. John Hancock Mutual Life Insurance Co. v. Magers, supra; Vaughan v. Humphreys, supra. The purpose of the statute is to permit an insured to obtain the services of a competent attorney and the amount of the allowance should be such that well prepared attorneys will not avoid this class of litigation or fail to devote sufficient time for thorough preparation. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W. 2d 829. it is contemplated that the allowance should not be a speculative or contingent fee but that it be such a fee as would be reasonable for a litigant to pay his attorney for prosecuting such a case. Old Republic Insurance Co. v. Alexander, supra.

In Old Republic we enumerated as pertinent factors to be considered in a case such as this the time and amount of work required of the attorney, the ability to meet the issues that arise and the sum recovered or the amount involved in the action. Similar factors to be used as guides to determining reasonableness of a fee are set out in the Code of Professional Responsibility promulgated by the American Bar Association and adopted by this court. See DR 2-106 (B); EC 2-18. They are:

1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.
2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer.
3. The fee customarily charged in the locality for similar legal services.
4. The amount involved and the results obtained.
5. The time limitations imposed by the client or by the circumstances.
6. The nature and length of the professional relationship with the client.
7. The experience, reputation, and ability of the lawyer or lawyers performing the services.
8. Whether the fee is fixed or contingent.

Similar treatment of the problem is given by Prof. Ray Trammell in One State’s Experience with the Statutory Remedy for Insurers - Delays - A Problem in Payment, 10 Ark. L. Rev. 439 (1956).

There is no fixed formula or policy to be considered in arriving at such fees other than the rule that the appropriately broad discretion of the trial court in such matters must not be abused. Federal Life Insurance Company v. Hase, 193 Ark. 816, 102 S.W. 2d 841.

Usually we recognize the superior perspective of the trial judge in assessing the applicable factors, because of his intimate acquaintance with the record and the quality of service rendered. Old Republic Insurance Co. v. Alexander, supra; Great American Indemnity Co. of New York v. State, 231 Ark. 181, 328 S.W. 2d 504; North River Insurance Co. v. Thompson, 190 Ark. 843, 81 S.W. 2d 19. We have not hesitated, however, to reduce allowances we deem excessive because we cannot find adequate support for them when the entire record of the case is before us. Aetna Life Insurance Co. v. Spencer, 182 Ark. 496, 32 S.W. 2d 310; Maryland Casualty Co. v. Maloney, 119 Ark. 434, 178 S.W. 387, L.R.A. 1916A 519. See also, Old American Life Insurance Co. v. Williams, 241 Ark. 250, 407 S.W. 2d 110.

In this case, the circuit judge only had the pleadings in the case and the actual trial along with the recognized skill and ackowledged experience of appellee’s attorney and that of his adversary as a basis for making this important determination. Without any disparagement of the ability and services of appellee’s attorney or discounting the skill of his adversary, we do not think these elements afford adequate basis for the $10,000.00 figure fixed by the circuit judge. We, too, resort to inspection of the record in reviewing trial court actions in this regard. Metropolitan Casualty Insurance Co. v. Chambers. 136 Ark. 84, 206 S.W. 64.

The complaint consisted of only two pages which stated the case’s rather simple issue, which was one of fact. It was whether or not appellee was entitled to benefits of $270.00 a month for total disability under a group policy issued by appellant, after they had been discontinued on the theory that Rummell was no longer permanently and totally disabled within the terms of the policy. The policy provision involved provided that the monthly payments continued after two years of disability preventing the performance of the duties of the insured’s own work, only if the disability prevented him from working in any reasonable occupation for which he was or might become fitted by education, training or experience. Thus, the only issue was whether appellee was prevented from working in any such occupation and it was resolved against appellant by the jury verdict.

Policy terms were stipulated. During the one-day trial the appellee presented the testimony of a rehabilitation counselor for the Department of Social Rehabilitation Services and the depositions of a diagnosing physician, in addition to his own. The only evidence offered by appellant was the expert opinion of an examining physician, given by deposition.

The only instructions given by the court were AMI, Civil, 102, 103 and 202, and one offered by appellee stating the effect of the pertinent policy provision.

Appellee seeks to justify the fee allowed upon the following bases: the fee was contingent in the sense that, had the judgment gone against him, his attorney would not have received any compensation; the amount involved in the litigation was $50,000; the fee allowed was a smaller percentage of the amount involved than in almost all of the numerous cases collected by appellant; considerable time and effort were expended in preparation for trial; and the circuit judge had evaluated the quality of his attorney’s skill and experience as rising far above that of the ordinary lawyer.

Appellant correctly contends that the fee should not be contingent, i.e., contingent upon the outcome of the case. Aetna Life Insurance Company v. Taylor, 128 Ark. 155, 193 S.W. 540. Mutual Life Insurance Co. v. Owen, 111 Ark. 554, 164 S.W. 720; Merchants Fire Insurance Co. v. McAdams, 88 Ark. 550, 115 S.W. 175. This basis of support for the allowance thus falls.

It does not follow, however, that the amount involved is not an element to be considered, along with the difficulty of the issues. We can agree that the testimony abstracted and the 9-3 jury verdict are indicative of the exercise of a high degree of skill in factual presentation and persuasiveness on the part of appellee’s counsel. Some difficulty arises in arriving at the amount of recovery in terms of the ultimate impact of the verdict upon future benefits. No one contends that the jury verdict for $1,350.00, the monthly payments then accrued, is the amount to be considered for fee allowance purposes. Unquestionably, this factor encompasses the future benefits which are to be paid as a result of the judgment in this case. Pacific Mutual Life Insurance Co. of California v.Jordan, 190 Ark. 941, 82 S.W. 2d 250. However, measuring this amount does present problems. We do not feel justified in accepting appellee’s estimate of $50,000.00 in benefits, based upon a total of $38,070.00 which would be paid by his 65th birthday on March 17, 1985 (when the impact of Social Security benefits would, under policy provisions and existing law, reduce the payments) and the indeterminate amount of benefits he might draw for the remainder of his life expectancy extending to 1994 under recognized mortality tables for normal adults. This estimate includes the penalty recovered and, at the same time ignores the present value of the future benefits and the testimony of appellant’s medical witness that a diabetic, as appellant was, had a life expectancy less than normal. Even following appellee’s assumption that his life expectancy is normal and that payments will continue after his 65th birthday at the rate of $100.00 a month, present value would not exceed $31,000.00 on the basis of a 6% interest rate. Not only does this figure fail to fully support appellee’s estimates, we cannot say that any of our previous cases treated by the parties afford us a sufficient comparison to be controlling. We find nothing affording any satisfactory means by which the time and effort spent in preparation for trial can be measured with any degree of accuracy. We are unaware of resort to this important factor in the trial judge’s award, as his only reference to any guideline was his consideration of the responsibility assumed by the attorney in accepting employment and preparation for trial. These factors alone do not, in our opinion, support the amount allowed. Still, we are unable to accept the vague suggestions of appellant as to the appropriate allowance. We certainly do not agree that a fee of $1,500.00 is adequate, even though we have to rely upon the trial judge’s knowledge and experience, and our own, to arrive at any amount that will cover all essential factors and insure that thoroughly competent attorneys will neither avoid such litigation nor fail to appropriately prepare for its trial. We cannot, in all due deference to the trial judge’s evaluation and in the light of our own knowledge on the subject, approve a fee allowance in excess of $5,000.00. It is our usual practice to modify the judgment by reducing the amount allowed. Mutual Life Insurance Co. of N.Y. v. Owen, 111 Ark. 554, 164 S.W. 720. We accordingly modify the judgment by reducing the allowance to that amount and affirm the judgment as thus modified.

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

Carleton Harris, Chief Justice,

dissenting. I disagree with the disposition of this case by the majority. The taking of the depositions (of the two doctors, one for appellant and one for appellee), while allotted only three lines in the majority opinion, required considerable time; what is more important, the preparation for taking same, required considerably more time. While appellant seems to have viewed this litigation as more or less routine, I cannot accept that evaluation, and the fact that the jury returned a 9 to 3 verdict, to me, sufficiently belies such an assertion. Actually, this vote is rather convincing evidence that the case was indeed difficult and required skill, experience, and thorough preparation so — while the record does not reflect the actual amount of time expended in preparing for trial, the result is clearly indicative that appellee’s attorney was well informed on all facets of the case — knowledge that results only after diligent and careful study. Here is a laborer, with an eighth grade education, unemployed, totally disabled (as found by the jury), who, in the years to come, will not have to again litigate the question of his disability because the efforts of his attorney established his total and permanent disability. It appears to me that in disapproving the allowance to Mr. Rummell for his attorneys’ fee, the court is overemphasizing the purported lack of time expended by that attorney (though it does not appear in the record), and minimizing the results achieved.

It is admitted by the majority that none of the cases cited by either party affords a sufficient comparison to be controlling. The majority then states:

“we find nothing affording any satisfactory means by which the time and effort spent in preparation for trial can be measured with any degree of accuracy.”

This simply means to me that the majority is taking an educated guess as to the amount to be awarded appellee for the attorneys’ fee. I submit that this is hardly a sufficient basis to overturn the findings of the trial judge, who heard the case tried, heard the amount of fee argued, had every opportunity to observe the skill displayed and was thus in a much better position to determine, from the conduct of the trial, the time that had been spent in prepration.

I recognize that the amount of benefits to be drawn by Mr. Rummell is not definite, i.e., such is dependent on appellee living a sufficient length of time to draw the benefits that have been calculated, and this uncertainty perhaps could justify a reduction in the amount of the fee. However, it does not in my view, justify a 50% reduction and certainly I would not reduce the amount to less than $7,500.00. For the reasons set out herein, I respectfully dissent.

I am authorized to say Holt, J. joins in this dissent.

Conley Byrd, Justice,

dissenting. If we suppose that appellee’s counsel spent one day in reading to bone up on his medical knowledge before taking the two doctors’ depositions and that he took a half a day in taking each of the depositions, I don’t see how he could have had more than four complete days of work in the handling of this one day trial. Furthermore, if we assume that approximately 45% of the fees which he collects, go to overhead, and that after vacations and holidays, counsel only works 154 days in a year, we are still figuring a reasonable compensation to counsel at a rate in excess of $100,000 per year. It looks to me that a gross income of $750.00 per day on this type of litigation should be adequate compensation. On the basis of what the record shows, I don’t see how we can make an allowance in excess of $3,000 and that is rather liberal.

For the reasons stated I respectfully dissent.