author: James H. McKenzie, Special Justice.

text:
    ARKANSAS VALLEY ELECTRIC COOPERATIVE CORPORATION, Appellant v. Hud DAVIS, Formerly a Minor, by Woodrow Davis, His Father and Next Friend, Woodrow Davis and Barbara Davis, Appellees/Cross-Appellants v. Osmose Wood Preserving Company of America, Inc., Cross-Appellee
    89-311
    800 S.W.2d 420
    Supreme Court of Arkansas
    Opinion delivered December 3, 1990
    [Rehearing denied January 14, 1991.]

      Friday, Eldredge & Clark, by: Barry E. Coplin, for appellant.

      Batchelor & Batchelor, by: Fines F. Batchelor, Jr., for appellees and cross-appellants.

      Shaw, Ledbetter, Hornberger, Cogbill & Arnold, by: Robert E. Hornberger, for cross-appellee.

      Corbin and Brown, JJ., not participating.

   James H. McKenzie, Special Justice.

The appellees are Hud Davis, a minor, by Woodrow Davis, his father and next friend, Woodrow Davis, individually, and Barbara Davis, the mother of Hud Davis, individually. They brought a negligence action against Arkansas Valley Electric Cooperative (Arkansas Valley), and Osmose Wood Preserving Company of America, Inc. (Osmose).

Hud Davis (Hud), age sixteen, was injured on March 15, 1984, when he came in contact with a 7,200 volt electric power line of Arkansas Valley. The line served the Davis residence and had fallen to the ground due to a pole of Arkansas V alley breaking at the ground level. The Davises alleged that Arkansas Valley and Osmose negligently failed to replace the pole which they knew to be deteriorated and negligently failed to maintain the pole and power line in the area of the Davis residence. Arkansas Valley denied negligence and contended the injury was due to an act of God. Arkansas Valley filed a third-party complaint against Osmose alleging that Arkansas Valley and Osmose had contracted for Osmose to inspect and treat the poles and if the pole was defective, it was due to Osmose’s breach of duty to inspect. Osmose answered that Arkansas Valley was not free of fault and affirmatively pled contributory negligence of Hud and that the injuries to Hud were due to an act of God. Osmose also cross-complained against Arkansas Valley. At the trial, a verdict was directed in favor of Osmose and Arkansas Valley was granted a partial directed verdict on the basis that the pole was not decayed.

The case went to the jury on the remaining allegations against Arkansas Valley. The jury returned a verdict in favor of Hud and Mr. and Mrs. Davis. Judgment was entered on the verdict and post-trial motions were denied. Arkansas Valley has appealed and the Davises have cross-appealed as to the directed verdicts.

Hud lived in the residence with his parents on a farm approximately one and one-quarter miles northeast of the community of Hobbtown in Crawford County, Arkansas. Hud, his father, and brother, Brant Davis, had gone to Van Burén during the evening of March 15, 1984. On returning home, they found trees, tree limbs and other debris from a storm blocking a portion of the roadway to their home. Mr. Davis remained with neighbors to help clear the road of trees and limbs. Hud and Brant started walking to their home. Hud followed the roadway toward the house. In the darkness he walked into the power line. He sustained second and third degree electrical burns to forty percent (40 %) of his body which necessitated the amputation of his right leg and caused him disfigurement and disabilities.

Arkansas Valley maintains the trial court erred in refusing to direct a verdict in its favor because there was no evidence that it was negligent. Upon being presented with a motion for a directed verdict, the court must view the evidence, with all reasonable inferences, in the light most favorable to the party opposing the motion giving the evidence its highest and strongest probative value. Grain Dealers Mutual Insurance Company v. Porterfield, 287 Ark. 27, 695 S.W.2d 833 (1985). A directed verdict for Arkansas Valley was proper only if there was no substantial evidence from which the jurors, as reasonable persons, could find for the appellees. The denial of a directed verdict will not be reversed if there is any substantial evidence on which the jury could have based a finding of negligence. William v. First Security Bank of Searcy, 293 Ark. 388, 738 S.W.2d 99 (1987).

Mr. Davis testified that the top of the pole had rotted off, that there were several large cracks in the pole that went to the ground, that the pole was rotten and that the pole was in poor condition with splits down it. Mr. Davis further testified that a man, who led Mr. Davis to believe he was from Arkansas Valley, came to the Davis homesite two or three years before the injury to Hud and inspected the pole. The inspector purportedly told Mr. Davis, “This pole is bad. We’re going to replace it.”

The pole was installed in 1949. The accident occurred on March 15, 1984, so the pole was thirty-five years old. Mr. Agee, the general manager of Arkansas Valley, identified a table in REA Bulletin 161-4 (July 1957), which was appellee’s Exhibit 20. This table stated that forty-eight percent of the poles in the classification of the pole in question failed from deterioration at the age of thirty-five years. Agee further testified that according to appellee’s Exhibit 20, the pole was near the end of its life.

Dwayne Edgar Lyon, Ph.D., a wood scientist, testified that if the pole’s strength was reduced to seventy-five percent, the pole was supposed to be replaced under the National Electric Safety Code’s standards. This evidence, combined with the testimony of Henry H. Hicks, Ph.D., a professor of mechanical engineering at the University of Arkansas, that the pole was at twenty-five percent strength, was proof from which the jury could reasonably have inferred that the pole did not meet the National Electric Safety Code standard. A violation of the National Electric Safety Code is evidence of negligence. See, AMI 1403, Comment, Arkansas Model Jury Instructions, Civil, Third Edition.

Additionally, the butt of the pole was buried fifty-eight to fifty-eight and one-half inches in the ground. The industry standards required it to be buried a minimum of sixty-six inches. There were two electrical power line wires and three telephone wires attached to this pole. There was only one guy wire on this pole. Mr. Agee testified that ordinarily the company had an additional guy wire when telephone wires were on the pole.

The above evidence is substantial evidence from which the jury could reasonably infer negligence by Arkansas Valley, and that such negligence proximately caused the injuries to Hud. Stacks v. Arkansas Power & Light Company, 299 Ark. 136, 771 S.W.2d 754 (1989). Arkansas General Utilities Company v. Shipman, 188 Ark. 580, 67 S.W.2d 178 (1934).

Arkansas Valley contends the trial court erred in failing to rule that the sole proximate cause of Hud’s injuries was an act of God as a matter of law. The proof that the U.S. Weather Bureau classified the storm as an F-l tornado and other evidence about the intensity of the storm entitled Arkansas Valley to have the act of God jury instruction. The trial court properly gave the instruction in the form of AMI 615, as follows:

An act of God means a violent disturbance of the elements such as a storm, a tempest, or a flood.
A person is not liable to another whose damages were caused solely by an act of God. If an act of God concurs with the negligence or fault of man to proximately cause damages, the negligence or fault is not excused by the act of God.

See, Lee v. Crittenden County, 216 Ark. 480, 226 S.W.2d 79 (1950). Under this instruction, if Hud’s injuries were produced by the combined effect of the act of God and the negligence of Arkansas Valley, then Arkansas Valley is liable for the damages. Therefore, because of the evidence of negligence by Arkansas Valley discussed above, Arkansas Valley was not entitled to a finding by the trial court that Hud’s injuries were due to an act of God as a matter of law. The issue was one of fact rather than law.

Arkansas Valley also alleges the trial court erred in failing to grant a mistrial in view of prejudicial matters called to the jury’s attention. The trial court excluded photographs the Davises intended to introduce. The photos were of the fourth and sixth poles away from the pole that broke on the night in question. One pole had a guy wire not in conformity to the National Electric Safety Code. The trial court sustained the appellant’s objection to the admissibility of the photographs. The appellee’s counsel then sought to make a proffer of proof of the exhibits in or outside of the presence of the jury for the purpose of identifying the photographs. The trial court suggested this be done by stipulation. Appellant’s counsel refused to stipulate. The trial court then ruled the appellee would make the proffer of the identification of the photographs in the presence of the jury. Appellant’s counsel did not object to this procedure but later objected to the testimony of the witness identifying the pictures. The trial court overruled those objections. There were instances where appellees’ attorney attempted to examine witnesses regarding an excluded photograph. When a witness referred to one of the photographs, appellants moved for a mistrial which was denied.

We are of the opinion that under the circumstances of this case, the principle set forth in Bryant v. Eifling, 301 Ark. 172, 782 S.W.2d 580 (1990), controls. The court said:

Mistrial is a drastic remedy that is appropriate only if justice cannot be served by continuation of the trial and when it is obvious that the prejudice cannot be removed by any other means.

The appellant does not state in its brief how it was prejudiced by the referrals to the photographs which were not admitted into evidence, and we find no prejudice. Unless the error was prejudicial, we- will not reverse the trial court’s judgment. Bryant v. Eifling, supra.

The appellees contend on cross-appeal that the trial court erred in directing a verdict for Osmose and in granting a partial directed verdict for Arkansas Valley that the pole was not decayed.

As for the partial directed verdict for Arkansas Valley, we disagree with the trial court, because, giving the evidence discussed above its strongest probative value in favor of the cross-appellants, it would be reasonable for the jury to infer that the pole was decayed. The error, however, was rendered harmless by the verdict of the jury.

As to the directed verdict in favor of Osmose, we affirm. In 1984 there was a contract between Osmose and Arkansas Valley. The cross-appellee, Osmose, contends, and the cross-appellants do not dispute, that the duty of Osmose is that described in the contract under the case of Dongary Holstein Leasing, Inc. v. Covington, 293 Ark. 112, 732 S.W.2d 465 (1987), which says in part:

A claim for damages based on negligence arising out of breach of contract must necessarily be determined by reference to the contract which created the duty, expressly or impliedly.

Arkansas Valley offered no evidence questioning the adequacy of Osmose’s inspection. The cross-appellant introduced no evidence that on April 5, 1983, the date of the Osmose inspection, the pole had a weakness that could have been detected by the inspection process Osmose contracted to perform. The burden of proof was on the cross-appellants to prove that Osmose negligently failed to perform its contract. Even though the evidence and any reasonable inferences deducible therefrom is reviewed in the light most favorable to the party against whom the verdict was directed, it must be substantial, i.e., of sufficient force and character to compel a conclusion one way or another. It must force or induce the mind to pass beyond suspicion or conjecture. Yielding v. Chrysler Motor Co., 301 Ark. 271, 783 S.W.2d 353 (1990). The appellee did not present any substantial evidence of negligence by Osmose in the performance of the contract that was a proximate cause of Hud’s injuries.

Affirmed.

Turner, J., not participating.

       The admissibility of this testimony is not questioned by Arkansas Valley on appeal.

       The proffer of evidence is governed by Arkansas Rules of Evidence, Rule 103. It would have been error for the trial court to refuse the appellee’s proffer of proof. The trial court may control the form and time of the proffer. Jones v. Jones, 22 Ark. App. 267, 739 S.W.2d 171 (1987).


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    James Ross WEAVER, Jr. v. STATE of Arkansas
    CR 90-203
    798 S.W.2d 925
    Supreme Court of Arkansas
    Opinion delivered December 3, 1990

      Bill Luppen, for appellant.
    No objection.
   Per Curiam.

Appellant, James Ross Weaver, Jr., by his attorney, has filed this motion for Belated Appeal to Supplement the Record and for a Rule on the Clerk to accept the record on appeal. The record was refused when tendered to the clerk because notice of appeal was not timely filed subsequent to an order of the trial court denying appellant’s motion for a new trial. ARAP Rule 4(d).

Appellant’s attorney, Bill Luppen, admits that the failure to renew a timely notice of appeal within thirty (30) days after the order denying a new trial was due to his own neglect.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.

Dudley, J., not participating.


author: Jack Holt, Jr., Chief Justice.

text:
    Ralph DIEBOLD v. Arthur VANDERSTEK and Grace Vanderstek, His Wife, d/b/a Vanguard Properties
    90-223
    799 S.W.2d 804
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990

      Carney & Cooper Law Firm, P.A., by; Mark F. Cooper, for appellant.

      Elcan & Sprott, by. Frank C. Elcan II, for appellee.
   Jack Holt, Jr., Chief Justice.

This is a slip and fall case. On December 17, 1984, the appellant, Ralph Diebold, fell on the parking lot of a shopping center owned by the appellees, Arthur and Grace Vanderstek d/b/a Vanguard Properties. Diebold filed a complaint on December 4, 1987, and alleged that his fall and injuries resulted from having stepped on a green, slimy substance that had accumulated on the parking lot through the Vandersteks’ negligence.

The trial court granted the Vandersteks’ motion for summary judgment, and Diebold appeals claiming that the trial court abused its discretion in granting the motion for summary judgment. We disagree and affirm.

In McKay v. St. Paul Ins. Co., 289 Ark. 467, 711 S.W.2d 834 (1986), we stated that:

In order to grant a summary judgment the court must have found that reasonable minds could not have reached different conclusions based upon the pleadings, depositions, and affidavits in the file at the time the motion is acted upon. In considering a summary judgment the court must find from the pleadings, depositions, answers to interrogatories, admissions, and affidavits filed that there is no genuine issue of a material fact and as a matter of law the moving party is entitled to judgment. In testing the proof in a proceeding pursuant to a motion for summary judgment, the court must not only consider the written material but all reasonable inferences deducible therefrom viewed in a light most favorable to the party against whom the motion is directed. [Citations omitted.]

We also noted in Collyard v. American Home Assurance Co., 271 Ark. 228, 607 S.W.2d 666 (1980) (citing LeMay v. W. & R. Corp., 262 Ark. 530, 558 S.W.2d 154 (1977)), that the presence of a foreign or slick substance which causes a slip and fall is not alone sufficient to prove negligence. It must be proved that the substance was negligently placed there or allowed to remain.

In this case, the Vandersteks attached their affidavit to the motion for summary judgment and stated that “at no time prior to December 17,1984, were they aware of any foreign substance on the parking lot at all, nor had anyone in their employment placed such a substance there, been made aware of the existence of any foreign substance on the lot, or been asked to remove any such substance.” They also incorporated in their brief in support of the motion Diebold’s deposition testimony, which established that Diebold had no knowledge of the length of time the substance had been on the parking lot the day that he fell, nor did he have any specific knowledge that the Vandersteks knew about the substance being on the parking lot on, or prior to, the date he fell.

Diebold’s response, in the form of his and his wife’s affidavits, merely recounts the incidents pertaining to his fall and outlines his injuries rather than containing any specific facts with reference to the Vandersteks’ alleged negligence.

In Turner v. Baptist Medical Center, 275 Ark. 424, 631 S.W.2d 275 (1982), we stated that ARCP Rule 56(e), our summary judgment procedure, requires that proof offered to meet a properly supported motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial. The affidavits must set forth facts that would be admissible in evidence. Rule 56(e). “The purpose of the summary judgment procedure is to permit the court to ascertain at an early stage whether there is any factual issue which requires a trial.” D. Newbern, Arkansas Civil Practice and Procedure §26-6 (1985).

The pleadings, depositions, answers to interrogatories, and affidavits filed in this case, considered in the light most favorable to Diebold, together with all reasonable inferences and deductions therefrom, do not leave genuine issues of fact to be determined.

Affirmed.


author: Jack Holt, Jr., Chief Justice. Jack Holt, Jr., Chief Justice.

text:
    NATIONAL BANK OF COMMERCE (of El Dorado, Arkansas) Conservator of the Estate (only) of Linda Hoffman; and Steve Hoffman, Her Husband; and National Bank of Commerce (of El Dorado, Arkansas) Guardian of the Estate (only) of Brett Hoffman, Kent Hoffman and Allison Hoffman, Minors v. Dr. Sam BEAVERS and Dr. Shelby Woodiel
    89-305
    802 S.W.2d 132
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990
    [Supplemental Opinion on Denial of Rehearing January 28, 1991.]

      Bernard Whetstone, P.A., by: Bernard Whetstone and Bob Davidson, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, P.A., for appellee Dr. Sam Beavers.

      Wright, Lindsey & Jennings, for appellee Dr. Shelby Woodiel.

      Newbern, Corbin, and Brown, JJ., not participating.

   Jack Holt, Jr., Chief Justice.

The appellants, National Bank of Commerce, Conservator of the Estate of Linda Hoffman; Steve Hoffman; and National Bank of Commerce, Guardian of the Estate of Brett, Kent, and Allison Hoffman, minors, brought suit against the appellees, Dr. Sam Beavers and Dr. Shelby Woodiel to recover damages for injuries allegedly arising from the negligent treatment of Linda Hoffman for a condition known as temporomandibular joint dysfunction, or “TMJ.”

Appellants contend that Mrs. Hoffman’s treatment for “TMJ” consisted of two phases. It is alleged that Dr. Woodiel improperly treated Mrs. Hoffman during phase one and then negligently referred her to Dr. Beavers, who was not qualified to treat her disorder. It is contended that Dr. Beavers rendered negligent care to Mrs. Hoffman during phase two of her treatment. The jury found no negligence on the part of either Dr. Woodiel or Dr. Beavers and returned a verdict in their favor.

On appeal, appellants raise six points of error, all of which have no merit.

I. SUPPRESSION OF TESTIMONY

Appellants first contend that the trial court erred in the suppression of testimony that prevented the jury from being informed of the true facts surrounding the occurrence. They claim the jury was “only permitted to be informed of the tip of the iceberg.” This allegation appears to be based on appellants’ assertion that the suppressed evidence was admissible on the issue of punitive damages, i.e. to show wanton and willful conduct on the part of Dr. Woodiel and Dr. Beavers, a theory rejected by the trial court. See National By-Products, Inc. v. Searcy House Moving Co., Inc., 292 Ark. 491, 731 S.W.2d 194 (1987) (award of punitive damages justified only where evidence indicates defendant acted wantonly or with such conscious indifference to consequences that malice may be inferred).

In analyzing the record before us, we note that the appellants do not furnish specific arguments in support of the proffered testimony which was excluded by the trial court; rather, this court is cited, generally, to various rules of the evidence, to case law concerning the admissibility of same or similar occurrences, and to excerpts from a Delaware case discussing the admissibility of evidence where punitive damages are involved. See Strauss v. Biggs, 525 A.2d 992 (Del. Supr. 1987).

Unlike the present case, the defendant in Strauss conceded liability for compensatory damages, leaving the jury with only the amount to be determined. The plaintiffs theory in Strauss was that the defendant was running a “podiatric mill” for profit, and the plaintiff was permitted to place into evidence additional acts of negligence to show the defendant’s conduct was deliberate, thereby warranting punitive damages.

Here, appellants similarly theorize that Dr. Woodiel and Dr. Beavers were running a “dental mill” and that testimony regarding various acts of negligence and the competency of both doctors should have been admitted to show their willful and wanton misconduct surrounding Hoffman’s treatment. In support of their theory, appellants furnished to the trial court proposed testimony and numerous depositions, supported by writings labeled “’’Partial Pre-trial Brief on Subjects of (A) Punitive Damages and (B) Admissibility of Evidence of Greed and Other Infractions in Support of Punitive Damages.” In this brief, appellants name and diagram the various witnesses, their relationships to one another, and their purported testimony — all in support of their claim for punitive damages.

Before we reach a determination of admissibility of this tendered evidence in support of punitive damages, our initial, fundamental inquiry as to admissibility must be predicated on the question of whether or not it is relevant to the events in question. To be admissible, the proferred testimony must necessarily have been related to the specific treatment of Linda Hoffman. Evidence which is not relevant is not admissible. A.R.E. Rule 402. In addition, “[although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cummulative evidence.” A.R.E. Rule 403. The trial court has broad discretion in decisions of admissibility, and we will not reverse its ruling absent an abuse of this discretion. Northwestern Nat’l Life Ins. Co. v. Heslip, 302 Ark. 310, 790 S.W.2d 152 (1990).

We further note that the jury found no negligence and, consequently, awarded no damages. Since there can be no award for punitive damages, absent an award for compensatory damages, (see Bell v. McManus, 294 Ark. 275, 742 S.W.2d 559 (1988)), all testimony submitted, or not submitted to the jury in support of punitive damages is of no moment. Even if the trial court was wrong in the suppression of testimony on the basis of the issue of punitive damages, its actions, at most, would constitute harmless error since the jury failed to return a verdict for consequential damages. See Haseman v. Union Bank of Mena, 268 Ark. 318, 597 S.W.2d 67 (1980).

Appellants presented eleven witnesses over seven of the twelve days of trial. In addition, they asked the trial court for rulings of admissibility of deposition testimony from a score of witnesses, only some of which are being challenged on appeal. Examination of this evidence reflects that it either failed to meet the threshold test of relevancy under A.R.E. Rule 402 or, if relevant, was subject to exclusion under A.R.E. Rule 403 or that it was tendered by the appellants for the purpose of establishing the issue of punitive damages, which, as previously mentioned, is of no moment.

II. DISMISSAL OF HOFFMAN CHILDREN

In their second point for reversal, appellants contend the trial court erred in dismissing the Hoffman children from the lawsuit via summary judgment. Appellants claim the children had a valid cause of action against Dr. Beavers and Dr. Woodiel for “setting in motion a chain of events in a domino-effect fashion,” the effect of which was to cause Mrs. Hoffman to inflict physical, psychological, and emotional injuries on her children. Allegedly, Dr. Beavers’ maltreatment resulted in such pain to Mrs. Hoffman as to cause her to lose control and abuse the children, thereby requiring that they be placed under the care of a psychologist.

Appellants concede the Arkansas does not recognize a cause of action for loss of parental consortium (see Gray v. Suggs, 292 Ark. 19, 728 S.W.2d 148 (1987)) and, instead, characterize the above mentioned “domino effect” as constituting a claim for infliction of emotional distress. Notwithstanding our unwillingness to extend this cause of action as far as appellants advocate, we need not consider its merits and whether dismissal was proper since the jury’s verdict renders any potential error harmless. See Haseman v. Union Bank of Mena, supra.

The jury found that Dr. Beavers was not negligent in his treatment of Mrs. Hoffman. The children’s claim that Dr. Beavers either negligently or intentionally treated their mother improperly, and thus indirectly inflicted emotional distress on them, becomes irrelevant. Any evidence introduced by the children, in furtherance of their claims of emotional distress, would not have affected the jury’s decision with regard to the issue of Dr. Beavers’ conduct. We will not reverse for error where it is evident that such error did not affect the verdict. Insured Lloyds v. Mayo, 244 Ark. 802, 427 S.W.2d 164 (1968).

III. VOIR DIRE

Appellants next contend that the trial court erred in prohibiting their counsel, during voir dire, from reading the names of the individual members of each of the law firms representing the defendants. This claim is also without merit.

Appellants provide in their brief and appendix the following exchange with the trial court during voir dire examination:

MR. WHETSTONE:
Now the defendants here are represented by two different law firms here in town. And even though the lawyers present in this case — you may not be involved with them in any way, if you are in anywise — you or any member of your immediate family have been represented by ,or been involved in any way with any member of their firm, it would be pertinent information that we should know and properly we should know.
That being true, I’m going to call the names —
THE COURT: Mr. Whetstone, I don’t want you to go through the name of every lawyer in every law firm, sir. I’ve asked them if they know any attorneys or have ever been represented by any attorneys in those law firms and I trust this jury to know who they’re acquainted with. I just don’t want to take the time of naming off every lawyer in the law firms. That’d take a long time to do that, sir.
MR. WHETSTONE: I shouldn’t go into that any further at all?
THE COURT: No, sir. I’ve asked them and we’ve both asked them if they know any lawyers in those law firms and I trust these people to know who they know of the attorneys. It’s not like they know a lot of attorneys out there, I’m sure. I’d rather we didn’t take the time, Mr. Whetstone. I’m sorry, sir. Let’s move on.
[Emphasis added.]

In charging the trial court with error, appellants quote from Ark. Code Ann. § 16-33-304 (1987), which pertains to challenges to the trial jurors in criminal proceedings rather than Rule 47 of the Arkansas Rules of Civil Procedure. Rule 47 provides:

(a) EXAMINATION OF JURORS. The Court shall either permit the parties or their attorneys to conduct the examination of prospective jurors or itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper.

It is obvious in this instance, that the court conducted the voir dire examination in which he asked the panel whether or not they knew, or had been represented by, any of the attorneys or law firms involved in this litigation, and then determined that he did not deem it proper or necessary to permit the attorneys to supplement his inquiry.

There are no indications from the record that any of the jurors did, in fact, know any of the attorneys representing Dr. Woodiel and Dr. Beavers, nor did they identify any relationships with the attorneys’ law firms, and we think it is sufficient to say that the appellants have not demonstrated any prejudice. The extent of juror examination rests within the trial court’s discretion and, absent a showing of abuse, we will not reverse the matter on appeal. Goodwin v. Harrison, 300 Ark. 474, 780 S.W.2d 518 (1989).

IV. IMPEACHMENT

For the fourth point of error, appellants argue that the trial court erred in permitting defense counsel to impeach Melissa Rollins through questioning of a subsequent witness, Peggy Hall, without first laying a proper foundation.

Peggy Hall, Dr. Beavers’ office manager, testified that either at the time, or after Melissa Rollins was discharged by Dr. Beavers, Ms. Rollins told Ms. Hall, “I will get Dr. Beavers.”

Appellants contend that Ms. Hall’s testimony with regard to this statement was in error of Rule 613(b) of the Arkansas Uniform Rules of Evidence, which states:

(b) Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require

Appellants argue that Ms. Rollins was not given the opportunity to explain or deny the statement before Ms. Hall was questioned about it. We disagree. Rule 613(b) is inapplicable in this situation since nothing in the record indicates Ms. Rollins ever made a remark either in accordance with, or in opposition to, the statement testified to by Ms. Hall. Therefore, no “prior inconsistent statement” was at issue, and the court’s overruling of the appellants’ objection on this basis was correct.

V. REPUTATION TESTIMONY

Appellants submit, for their fifth point of error, that the trial court erred in suppressing testimony from Dr. George Lay regarding his knowledge of Dr. Beavers’ reputation for truthfulness among his associates.

Dr. Lay, a witness for appellants, was questioned regarding his knowledge of Dr. Beavers’ reputation for honesty in the community during direct examination. When Dr. Lay stated that he had only met Dr. Beavers once, and was not aware of his reputation in the community at large, the trial court refused to allow him to testify further on this subject. Appellants objected but failed to proffer additional testimony from Dr. Lay. We will not find error on a trial court’s ruling that excludes evidence when there is no proffer. Flynn v. McIlroy Bank & Trust Co., 287 Ark. 190, 687 S.W.2d 114 (1985).

VI. NEWLY DISCOVERED EVIDENCE

Finally, appellants argue that the trial court erred in refusing to grant their motion for a new trial on the basis of newly discovered evidence. The evidence consisted of a video tape and transcript of a television documentary produced by ABC’s “20/ 20,” a weekly news program. The program, which aired following the conclusion of the trial, revealed that a Dr. Owen Rogel was running a “TMJ dental mill” similar, appellants alleged, to the one being operated by Drs. Beavers and Woodiel.

Dr. Rogel was acknowledged as an expert authority by one of the appellant’s expert witnesses; however, he was neither a party nor a witness in the lawsuit, and we fail to see the relevance of the t.v. program to the present case. The granting of a new trial based on newly discovered evidence is not a favored remedy, and a trial judge is vested with great discretion in acting on such a motion. St. Louis Southwestern Rwy. Co. v. White, 778 S.W.2d 483, 302 Ark. 193 (1990). The motion was properly denied.

JANUARY 28, 1989

Bernard Whetstone, P.A., by: Bernard Whetstone and Bob Davidson, for appellant.

No response.

Appellants have asked that we reassess and retax costs. Appellants’ points relied on for reversal were vague and over-broad; we find that the appellees’ designation of the record was necessary for their response and thus decline appellants’ request.

Affirmed.

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING

Jack Holt, Jr., Chief Justice.

The appellants, National Bank of Commerce and Steve Hoffmann, request a rehearing on the basis of two perceived errors in our opinion.

First, the appellants argue that we overlooked their theory of the case upon which certain testimony, held inadmissible by the trial court, was offered.

We stated in our opinion that the appellants’ claim, that the jury was “ ‘only permitted to be informed of the tip of the iceberg’ appear [ed] to be based on appellants’ assertion that the suppressed evidence was admissible on the issue of punitive damages, i.e. to show wanton and willful conduct on the part of Dr. Woodiel and Dr. Beavers. . . .” We explained the rule of law (and made it part of our holding) that where there is no award for compensatory damages, as in this case, there can be no award for punitive damages and thus the suppression of testimony on the issue of punitive damages would, at most, constitute harmless error. See Haseman v. Union Bank of Mena, 268 Ark. 318, 597 S.W.2d 67 (1980).

The appellants rightfully point out that the appellee, Dr. Woodiel, was not included in appellants’ claim for punitive damages and that the portion of appellants’ complaint requesting punitive damages was directed against Dr. Beavers only. Appellants thus argue that our consideration of the proffered testimony on this basis was error as to Dr. Woodiel and, that we overlooked instances of suppressed testimony supporting “the allegations that Melissa Rollins was performing illegal and negligent treatment to Linda Hoffman.” Appellants claim that “[t] his was the issue (the negligence of Dr. Beavers via his unlicensed assistant Melissa Rollins) — not punitive damages.” We note that this specific argument was not raised in the appellants’ appellate brief and ordinarily we do not consider arguments on rehearing not raised on appeal. Burks Motor, Inc. v. International Harvester Co., 250 Ark. 641, 466 S.W.2d 943 (1971). Granted, the issue was raised in appellants’ complaint, which was set out in their brief, and alluded to in appellants’ statement that Dr. Woodiel testified regarding the damage that might be done if services were performed by an unlicensed assistant (such as Melissa Rollins). Since such allusions may arguably be considered as “arguments”, we will discuss the merits of the appellants’ contention.

Initially, we acknowledge that our opinion was overbroad in including both Dr. Beavers and Dr. Woodiel in our discussion of punitive damages since appellants excluded Dr. Woodiel from this part of their claim. Our discussion of the punitive damages claim and the operation of the alleged “dental mill” should have been confined to Dr. Beavers. The issue of punitive damages was not, however, our sole basis for affirming the trial court’s suppression of the testimony in question, as the appellants contend.

We stated that before reaching a determination of admissibility in support of punitive damages, “our initial, fundamental inquiry as to admissibility (of the evidence before us) must be predicated on the question of whether or not it is relevant to the events in question.” Arkansas Rules of Evidence 402 and 403, regarding relevancy, were cited, along with the appropriate standard for review that the trial court has broad discretion in decisions of admissibility, and we will not reverse its ruling absent an abuse of this discretion. Northwestern Nat’l Life Ins. Co. v. Heslip, 302 Ark. 310, 790 S.W.2d 152 (1990). In summarizing our holding on this point, we stated:

Examination of this evidence reflects that it either failed to meet the threshold test of relevancy under A.R.E. Rule 402 or, if relevant, was subject to exclusion under A.R.E. Rule 403 or that it was tendered by the appellants for the purpose of establishing the issue of punitive damages, which, as previously mentioned, is of no moment.

Clearly, we considered, as did the trial court, the threshold issue of relevancy with regard to all of the proffered testimony. Evidence proffered in support of appellants’ theory of negligence, without conforming to the rules of evidence, is not enough to warrant its admission at trial.

The appellants cite, as an example in support of their “theory”, the testimony of Dr. Woodiel in which he testified that he considered Dr. Beavers to be incompetent and that Dr. Beavers was allowing Melissa Rollins to perform illegal and negligent work on Linda Hoffmann. We again note, as we did in our opinion, that the excerpt from Dr. Woodiel’s deposition referred to by the appellants was merely quoted at length in their brief without any argument or reference as to exactly which portion of the testimony the appellants felt was wrongly excluded or the underlying rationale. The court was left to speculate as to the appellants’ exact arguments by piecing together the general citations to various rules of evidence in the brief and the information contained in the pleadings and transcript.

Furthermore, we note that some of Dr. Woodiel’s testimony at issue (as well as the majority of other “suppressed testimony”) was quoted, verbatim, in the appellants’ pre-trial brief entitled “Partial Pre-trial Brief on subjects of (A) Punitive Damages and (B) Admissions of Evidence of Greed and other Infractions in Support of Punitive Damages,” leading the trial court, as well as this court, to believe that a claim for punitive damages was the basis for the proffered testimony.

Notwithstanding these problems, the trial court properly excluded Dr. Woodiel’s testimony, as well as other testimony proffered by the appellants, on the basis of Rule 403, which states that evidence, although relevant, “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Dr. Woodiel’s admitted lack of expertise in the field of orthodontics, in addition to the fact that appellants called several other dentists as experts, rendered his testimony both misleading and cumulative.

The appellants also refer to “dozens of other such instances overlooked in the brief,” summarily concluding that “. . . Judge Bogard abused his discretion in suppressing (most, if not all, of) the indicated (in brief) testimony.” This broad statement does not meet the requirement of Ark. Sup. Ct. R. 20(f), which states that the petition for rehearing must “distinctly state the grounds relied upon . . . .” Moreover, this “other testimony” consists almost entirely of the testimony of former patients, assistants, and associates of Dr. Beavers who were unconnected with the treatment of Linda Hoffmann, and was thus properly excluded as irrelevant to the issues at bar.

For these reasons, we leave undisturbed our holding that the appellants’ proffered testimony was properly excluded either because it was submitted on the issue of punitive damages as to Dr. Beavers or because it was inadmissible under Rules 402 and 403.

The appellants also appear to challenge our holding with regard to the impeachment of Melissa Rollins. Appellants submit no argument but simply quote from our opinion, again, in violation of Rule 20(f) which requires distinct arguments. We thus decline to address this second point.

Petition for rehearing is denied.

Newbern, Corbin, and Brown, JJ., not participating.


author: Robert H. Dudley, Justice.

text:
    Margie Katrina McCORMAC (Lewis) v. Michael Bryan McCORMAC
    90-225
    799 S.W.2d 806
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990

      Phil Stratton, for appellant.

      Linda P. Collier, for appellee.
   Robert H. Dudley, Justice.

The appellant, the mother in this child visitation dispute, filed a suit for divorce against appellee in 1988. In her complaint the mother alleged “there was one child born of this marriage, namely Jared Tyler.” The allegation was admitted by appellee and, in his counter-claim for divorce, appellee alleged “there was one child born of this marriage, namely Jared Tyler McCormac.” The property settlement provided “there is one child born of this marriage.” The trial court held it had “jurisdiction over the parties and the subject matter of this action,” awarded custody of the child to the mother, fixed the amount of child support, and set visitation rights.

The appellee subsequently filed a petition asking that the mother be held in contempt for refusing to allow him to visit the child. The mother filed a counter-claim for a declaratory judgment that appellee was not the child’s biological father. In it, she sought cancellation of the order of visitation. The trial court held that the counter-claim was barred by the doctrine of res judicata. Appellant appealed. We dismissed the appeal because the contempt matter was still pending. McCormac v. McCormac, 302 Ark. 187, 787 S.W.2d 692 (1990). The contempt matter now has been disposed of, and the appellant mother again appeals contending that the doctrine of res judicata should not prevent her from litigation the issue of fatherhood of the child. The appeal is without merit.

The doctrine of res judicata applies when there has been a final adjudication on the merits of an issue, without fraud or collusion, by a court of competent jurisdiction, on the matters litigated or which might have been litigated. Wells v. Arkansas Pub. Serv. Comm’n, 272 Ark. 481, 483, 616 S.W.2d 718, 719 (1981). The policy of the law is to end litigation by preventing a party who has had one fair trial of a question of fact from again drawing it into question. Here, the mother pleaded in the divorce action that there was a child born of the marriage, the appellee admitted the fact. The court found that it had subject matter jurisdiction and awarded custody, set child support, and fixed visitation. The mother cannot now, in a later suit, re-litigate the fact that appellee is the biological father of the child.

She argues that in May 1988, at the time of the divorce decree, the chancery court did not have subject matter jurisdiction over issues relating to paternity because such jurisdiction was in the county court. See Ark. Const, art. 7, § 28. From that basis she argues that the factual question has never been decided by a court of competent jurisdiction. The argument is without merit.

Jurisdiction is tested upon the pleadings. Springdale School Dist. v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981); Merchants Bank v. Affholter, 140 Ark. 480, 215 S.W. 648 (1919); Modern Laundry v. Dilley, 111 Ark. 350, 163 S.W. 1197 (1914). Here, both parties pleaded in the chancery court that the child was born of the marriage. Without question, the chancery court had subject matter jurisdiction to decide the custody, support, and visitation of a child born of the marriage. Thus, the chancery court had jurisdiction to try the issue pleaded and proven. It is a matter adjudged.

Affirmed.


text:
    James C. PLEDGER, Director Arkansas Department of Finance and Administration v. Coy Mac BOYD d/b/a Turf Plantation
    90-236
    799 S.W.2d 807
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990

      John Theis, Robert L. Jones, William Keadle, Cora Gentry, David Kaufman, Malcolm Bobo, and Beth B. Carson, by: Rick L. Pruett, for appellant.

      Barrett, Wheatley, Smith & Deacon, by: Paul D. McNeill, for appellee.
   Robert H. Dudley, Justice.

Appellant, Director of the Department of Finance and Administration, audited appellee’s business and determined that the appellee taxpayer owed $8,337.26 in delinquent taxes and $1,989.78 in accrued interest. The assessment was based upon the director’s determination that the taxpayer had not paid sales taxes on the sale of bermuda grass sod. The taxpayer paid the tax and interest under protest, and filed suit to challenge the director’s application of the gross receipts tax to the sale of grass sod. The chancellor ruled that the taxpayer was a farmer and that his sale of sod was exempted under Ark. Code Ann. § 26-52-401(18)(C) (Supp. 1989) as the sale of a raw product from the farm, directly to the consumer. The director appeals. We reverse the chancellor’s decision, sustain the assessment, and remand the case for proceedings consistent with this opinion.

The taxpayer owns a farm on which he grows soybeans, cotton, wheat, and bermuda sod. The director did not assess the tax on sales of soybeans, cotton, and wheat, but did assess the tax on the sale of bermuda sod. Ninety-five percent of the sod is sold to landscapers, contractors, and nurseries. Five percent of the sales are to golf courses, country clubs, or homeowners. The taxpayer does not have a store or office at the farm and delivers the sod directly to the customers.

Ark. Code Ann. § 26-52-401(18)(C) specifically exempts from the sales tax the following:
Gross receipts or gross proceeds derived from the sale of raw products from the farm, orchard, or garden, where the sale is made by the producer of the raw products directly to the consumer and user;

However, the above exemption “shall not be construed to exempt sales by florist and nurserymen.” (Emphasis added.) Ark. Code Ann. § 26-52-401(18)(F)(iv) (Supp. 1989).

Since 1941 the director and his predecessors in office have consistently interpreted the statute to include sod as a nursery product. Further, in 1987, the director issued a regulation stating: “the term ‘agriculture’ means operations engaged in and for the production of food or fiber.”

The right to a tax exemption must be established beyond a reasonable doubt by the claimant. Ragland v. General Tire & Rubber Co., 297 Ark. 394, 763 S.W.2d 70 (1989). Tax exemption statutes must be strictly construed against the exemption, and any doubt suggests that the exemption should be denied. Id. The interpretation given a statute by the agency charged with its execution is highly persuasive, and while it is not conclusive, neither should it be overturned unless it is clearly wrong. Arkansas Contractors Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 128 (1988). That is especially true where the agency’s construction has been observed and acted upon for a long period of time. Walnut Grove Dist. No. 6 v. County Bd. of Educ., 204 Ark. 354, 162 S.W.2d 64 (1942). Exemption cases are reviewed de novo in this court. Applying the foregoing burdens, standards, and rules of interpretation we conclude that the taxpayer should have been determined to be a nurseryman as a matter of law and, thus, not entitled to the raw farm products exemption.

Webster’s Third New International Dictionary defines nursery as “an area where trees, shrubs, or plants are grown for transplanting, for use as stocks for budding and grafting, or for sale.” Here, the bermuda sod was grown for transplanting and for sale. Thus, the taxpayer’s operation fits within the definition of a nursery. In Hardin v. Vestal, 204 Ark. 492, 162 S.W.2d 923 (1942), we held that an exemption for raw farm products did not constitute a denial of equal protection to florists and nurserymen. In doing so, we wrote:

It is true that all grow from the soil, but the products grown by farmers are entirely separate and distinct from the products grown by florists and nurserymen.
Therefore, even though the business of the florist and nurserymen are subdivisions of agriculture, it is not difficult to distinguish their business from that of the farmer. Farming — the growing of grain, cotton, livestock, poultry and other produce — is absolutely essential to the life of the nation, while the growing of flowers and plants and of fruit trees and shrubs is not.

The same can certainly be said about the growing of bermuda sod.

The Nursery Fraud Act of 1919 defines “nursery” as a place where “nursery stock” is propagated. Ark. Code Ann. § 2-21-102(3) (1987). In a sentence which is nebulous, at best, the act seems to define “nursery stock” to include “plants and plant products for propagation.” Ark. Code Ann. § 2-21-102(2) (1987). However the definition also can be read to include only “seeds of . . . plants and plant products for propagation.” We need not waste time on the meaning of the sentence because, however the Nursery Fraud Act definition is read, we do not consider it to govern this tax exemption case.

In sum, the taxpayer has not established beyond a reasonable doubt that the exemption for the sale of raw farm products applies to the sale of bermuda sod to be used as fairways and lawns.

Reversed and remanded for proceedings consistent with this opinion.


author: Steele Hays, Justice.

text:
    ARKANSAS CONFERENCE ASSOCIATION OF SEVENTH DAY ADVENTIST, INC. v. BENTON COUNTY BOARD OF EQUALIZATION
    90-183
    800 S.W.2d 426
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990

      Elrod Law Firm, by: John R. Elrod, for appellant. .
    No response.
   Steele Hays, Justice.

Appellant is the Arkansas Conference Association of Seventh Day Adventist, Inc. (Conference). Appellee is the Benton County Board of Equalization (Board). Appellant seeks to prevent appellee from collecting ad valorem taxes on real estate owned by appellant and used for school purposes.

The Conference operates the Ozark Adventist Academy (Academy) in Benton County. The Academy is a boarding school consisting of grades 9 through 12. The student body, with few exceptions, are members of the Seventh Day Adventist Church, although the boarding school is open to nonmembers. Present enrollment is 174 students and most live in the dormitories. On the campus are a girls’ dormitory, a boys’ dormitory, a gymnasium, a maintenance building, an administration building, a box factory, a duplex, and twelve detached single family dwellings. The subject of this dispute is the twelve single family dwellings and duplex.

In August 1988, the Board notified the Conference that it would impose ad valorem taxes on the property in question. An appeal was filed and Benton County Judge A.E. Norwood affirmed the decision of the Board. From that decision an appeal was filed in Benton County Circuit Court. The decision of the county court was affirmed and the Conference brings this appeal.

Article 16, § 5 of the Arkansas Constitution exempts from property taxation “school buildings and apparatus” and “grounds used exclusively for school purposes.” The Benton County Circuit Court held that the property does not meet the exclusive use requirement of the Arkansas constitutional provision. Consequently, the issue before us is whether the single family dwellings located on the grounds of the Academy constitute “grounds used exclusively for school purposes.”

The dwellings are rented for residential use to faculty and staff of the Academy. Faculty and staff are required to live in the dwellings unless special circumstances necessitate off-campus residency. In addition to faculty and staff, a retired faculty member resides temporarily rent-free in one of the houses. A church-affiliated physician previously lived in one of the residences. Students live on campus for approximately ten months out of the year and some live there the remaining two months, when there is no curriculum, working in the campus box factory.

It is appellant’s position that faculty and staff members do not merely reside in the dwellings, but also provide counseling, guidance and security by residing on campus and adjacent to the dormitories. The school’s educational goals are to provide physical, mental and spiritual guidance to the students. Therefore, appellant argues that the residential housing should be treated like the dormitories, which are not taxed. The Board contends the property rented to faculty and staff is in direct competition with other rental owners in the area and therefore the property should be taxed.

Arkansas limits its exemption to property “exclusively” used for school purposes. In determining the meaning of the word “exclusively,” it is first proper to decide whether the provision is to be strictly or liberally construed with respect to the exemption. 2 T. Cooley, The Law of Taxation § 684 (4th ed. 1924). In Arkansas the rule of strict construction applies to tax exemptions, therefore, the term “exclusively” is to be narrowly construed. Hilger v. Harding College, 231 Ark. 686, 331 S.W.2d 851 (1960). To determine whether property is used “exclusively” for a particular purpose, generally it is necessary to look to the primary use to which the property is put and not to secondary use. 2 T. Cooley, The Law of Taxation § 685 (4th ed. 1924). If the primary use is one allowed under the exemption, a secondary or incidental use, even if for a purpose not within the exemption, is irrelevant.

In this case, the faculty is responsible for such student counseling as might occur in the faculty residences. “Home parties” are given in the residences occasionally and the faculty are reimbursed for entertainment expenses. Faculty also help with security when necessary. Staff members are notified if the vice-president of finances, administrator or president of maintenance is unavailable in case of an emergency. But additional faculty and staff live directly in the dormitories which are taxexempt. No residences are used for conducting classes and none of the above mentioned duties are regularly scheduled obligations.

Another factor to consider is that the residential dwellings compete with other property owners in the area. Here, a flat rate is paid for rent and utilities by payroll deduction. Not only faculty and staff but their spouses and family, as well as a retired faculty member, live there as well. Faculty occupy the residences twelve months of the year even though no classes are offered in the summer. Were it not for the rental residences, the faculty and staff would have to buy or rent elsewhere.

Applying Arkansas’ strict construction of tax exemption provisions, we conclude the primary use of the dwellings is for residential purposes and the incidental use is for school purposes.

Affirmed.


text:
    Leffel BROWN v. STATE of Arkansas
    CR 90-150
    800 S.W.2d 424
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990

      James R. Marschewski, for appellant.

      Steve Clark, Att’y Gen., by; Clint Miller, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant seeks relief in this court from the trial court’s refusal to sever two counts of aggravated robbery for separate trials.

On December 28,1988, appellant Leffel Brown was charged by information with two counts of attempted capital murder and two counts of aggravated robbery occurring on December 23, 1988. Appellant was also charged with being an habitual offender. Appellant moved to sever the charges and the state agreed to a severance of the two attempted capital murder charges but opposed trying the two aggravated robbery charges separately. The court denied the motion as to the robberies.

At trial, the jury found appellant guilty of one of the robberies but could not reach a verdict on the other. After hearing evidence of prior convictions, the jury imposed a sentence of sixty years and appellant appeals from the judgment of conviction.

The applicable rule is A.R.Cr.P. Rule 22.2, Severance of Offenses:

(a) Whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.
(b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (1), shall grant a severance of offenses:
(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; or
(ii) if during trial, upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant’s guilt or innocence of each offense.

Under the rule, a defendant has a right to a severance when two or more offenses have been joined solely on the ground that they are of the same or similar character. Otherwise, granting or refusing a severance is within the discretion of the trial court. McEwen v. State, 302 Ark. 454, 790 S.W.2d 432 (1990).

The question is, were the two robberies joined solely because they were of the same character, or were they part of a single scheme or plan so as to justify denial of the severance request. We will uphold the trial court if we find these offenses are part of a single scheme or plan, or if both offenses require the same evidence. Jones v. State, 282 Ark. 56, 665 S.W.2d 876 (1984). Here, the denial of severance can be sustained on multiple grounds.

We addressed the issue of a single scheme or plan in Ruiz & Van Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981), where a defendants’ motion to sever two capital murder charges was denied. The defendants had kidnapped three individuals, murdered one of them and attempted to murder a second and left those two in the trunk of a car. The third individual was murdered thirteen to fourteen hours later and left in a wooded area in another county. That opinion states:

They argue that the offenses are not part of a single scheme or plan. That assertion is debatable, but whether they were part of a single pían or simply random, disconnected crimes is beside the point, because they constitute one criminal episode and when a series of acts are connected that is enough to give the state a right to join them in a single information. Rule 21.1. . . .
Rule 22.2, which appellants cite, gives an absolute right of severance when the offenses have been joined solely on the ground that they are of the same or similar character. Here, the offenses cannot be said to have been joined solely on that ground for reasons we have stated.

Similar arguments were presented and rejected in Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987). Parker murdered two members of his ex-wife’s family at their home, and attempted murder of a third. Later that day he kidnapped his ex-wife and shot a police officer. We held the trial court did not err in denying the defendant’s motion to sever two counts of capital felony murder from two counts of attempted first degree murder, two counts of burglary, one count of kidnapping and one count of attempted capital murder.

In this case both robberies were of convenience stores located in Fort Smith, and were closely related in time — the first occurring about 11:20 p.m. and the second thirty minutes later. This proximity in time and place provides an ample base for denial of severance under our interpretation of Rule 22.2 in Ruiz, supra, and later cases.

Additionally, some of the state’s proof was pertinent to both robberies — the officer who stopped appellant after the second robbery was reacting in part to a radio broadcast alerting the police to watch for the perpetrators of the first robbery. In order for the officer to explain why appellant was stopped it was necessary to prove the earlier robbery.

Finding no error, we affirm the judgment.


text:
    Arwood HICKS, Jr. v. ALLSTATE INSURANCE COMPANY
    90-205
    799 S.W.2d 809
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990

      David J. Manley, Legal Services of Arkansas, Inc., for appellant.

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Jacob Sharp, Jr., and Brian Allen Brown, for appellee.
   Steele Hays, Justice.

Arwood Hicks has appealed from an order of the trial court refusing to award an attorney’s fee pursuant to Ark. Code Ann. § 23-79-209(a)(1987). Hicks contends he was entitled to an attorney’s fee for defending a declaratory judgment action filed against him by Allstate Insurance Company, appellee. We sustain his contention and, accordingly, reverse and remand.

The only question we must decide is whether the declaratory judgment suit ended in a judgment against Allstate within the language of § 23-79-209(a). That provision of the code reads:

(a) In all suits in which the judgment or decree of a court is against a life, fire, health, accident, or liability insurance company, either in a suit by it to cancel or lapse a policy or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of the policy of any of his rights thereunder, or in a suit for a declaratory judgment under the policy, or in a suit by the holder of the policy to require the company to reinstate the policy, the company shall also be liable to pay the holder of the policy all reasonable attorneys’ fees for the defense or prosecution of the suit, as the case may be [Our emphasis.]

The pertinent facts are these: Hicks had a collision with another motorist, Tony Parrish, who then sued Hicks in Crittenden Circuit Court. Hicks was driving a car belonging to Ms. Vesta Cathy, his aunt, which was insured by Allstate. The policy was issue while Ms. Cathy was alive, but after her death in April 1987, Hicks continued to make premium payments which Allstate accepted without knowledge of Ms. Cathy’s death. The collision with Parrish occurred some ten months after Ms. Cathy’s death.

Allstate undertook a defense of Hicks under a reservation of rights and in April 1989 Allstate filed a declaratory judgment action in White Circuit Court alleging that Hicks was not covered under the policy issued to Ms. Cathy. Hicks denied the material allegations of the complaint and asserted affirmative defenses of estoppel, fraud, waiver, bad faith and breach of fiduciary relationship. Hicks requested attorneys’ fees pursuant to Ark. Code Ann. § 23-79-209 (1987). In November 1989, Allstate settled the litigation with Parrish and on December 7 the declaratory judgment action was dismissed with prejudice. Hicks promptly moved anew for an award of attorney’s fees and has appealed from the trial court’s subsequent denial.

Noting the clarity of the statutory language, Allstate concedes that the legislature intended to permit the award of attorney’s fees and costs to a prevailing party even where no monetary recovery results, as in a declaratory judgment action. Allstate maintains, however, that there has been no adjudication on the merits and, since no one “prevailed” in this action, no fee is warranted. We disagree, finding our authority in the settled case law of this court relating to the dismissal of actions under the rubric “with prejudice.” The case of Harris v. Moye’s Estate, 211 Ark. 765, 202 S.W.2d 360 (1947), illustrates the rule: Harris’s complaint against Moye was dismissed for failure to prosecute. The order of dismissal concluded, “It is therefore by the court considered, ordered and decreed that this cause be, and it is hereby, dismissed with prejudice, for want of prosecution.” Harris’s subsequent complaint on the same cause of action was dismissed upon a plea of res judicata. Harris appealed and this court affirmed, citing an opinion written by Judge Butler, Union Indemnity Co. v. Benton County Lumber Co., 179 Ark. 752, 18 S.W.2d 327 (1929):

This term [with prejudice] has a well recognized legal import; it is the converse of the term without prejudice; and is as conclusive of the rights of the parties as if the suit had been prosecuted to a final adjudication adverse to the plaintiff.

And in Russell v. Nekoosa Papers, Inc., 261 Ark. 79, 547 S.W.2d 409 (1977), we said:

There is ample precedent that whenever an action is dismissed with prejudice it is as conclusive of the rights of the parties as if there were an adverse judgment as to the plaintiff after a trial.

Other decisions to the same effect are Wells v. Heath, 269 Ark. 473, 602 S.W.2d 665 (1980); Curry v. Hanna, 228 Ark. 280, 307 S.W.2d 77 (1957); Seaboard Finance Company, et al. v. Wright, Admx., 223 Ark. 351, 266 S.W.2d 70 (1954).

Whether we interpret the statute broadly or narrowly matters little, as it is clear under our cases that the dismissal of this action with prejudice constituted a final adjudication on the merits and brought the matter within the plain language of the statute. The appellant was entitled to an attorney’s fee as therein provided.

Reversed and remanded to the trial court to determine and award the appropriate amount for legal services rendered at that level. A fee of $1,250 is awarded for services on appeal.

Glaze, J., not participating.


author: Otis H. Turner, Justice.

text:
    LAVACA SCHOOL DISTRICT NO. 3 v. CHARLESTON SCHOOL DISTRICT NO. 9
    90-216
    800 S.W.2d 703
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990

      Thompson & Llewellyn, P.A., by: William P. Thompson and M. Keith Blythe, for appellant.

      Stephen A. White, for appellee.
   Otis H. Turner, Justice.

This controversy involves a dispute between Lavaca School District No. 3 and Charleston School District No. 9 over which district is entitled to the tax revenue from 3,386.53 acres of real property formerly located in the now-defunct Mays Chapel School District No. 20 (Mays Chapel) and the Ursula School District No. 31 (Ursula). Though a number of salient facts and records are apparently missing, we find, based upon the record before us, that the decision of the trial court is supported by substantial evidence, and we affirm.

Charleston School District No. 9 (Charleston) encompasses lands located in Franklin County, Logan County, and the Greenwood District of Sebastian County. Lavaca School District No. 3 (Lavaca) is entirely within Sebastian County, and all of the lands at issue in this case are within Sebastian County.

On December 31, 1929, the Sebastian County Board of Education ordered a consolidation of Mays Chapel, Ursula, and Lavaca. Lavaca became the surviving school district. Thereafter, the official Board of Education records are silent, but from 1929 until 1946, taxes on that part of the property located in the Mays Chapel District were paid to Lavaca. Taxes on the property within the Ursula District were likewise paid to Lavaca until 1949, with the possible exception of a part of the taxes for the years 1932, 1937, and 1940.

In 1946, taxes on that portion of the lands in Mays Chapel were diverted to Charleston, and Charleston has continued to receive those payments without apparent complaint until the filing of this suit. Likewise, the taxes on the lands in the Ursula District were diverted to Charleston in 1949. They have continued to be paid to Charleston without exception until this complaint.

No documentation supporting any authority for the diversion of the tax funds is included in the record.

The annual reports of the Franklin County Board of Education indicate that the Ursula District was operated as a part of the Charleston District in the 1940-41 and 1941-42 school years.

The Charleston records also indicate, and the parties stipulated at trial, that for some period of time after the 1929 consolidation order — possibly as early as 1938 — Ursula School was operated as a “ward” or “wing” school by Charleston.

It was further stipulated that a majority of the students living in the area in question attend the Lavaca Schools. However, any student wishing to attend Lavaca must first apply to Charleston for permission to transfer and also apply to Lavaca for acceptance. These transfer requirements have been in existence for a number of years, and Lavaca has recognized and accepted the policy.

Official district maps submitted by the Sebastian County Board of Education to the State Department of Education indicate that, as early as 1936, the disputed area was included in the Charleston District. No such map or record shows any of the involved land to be in the Lavaca District.

The Circuit Court of Sebastian County, Greenwood District, resolved the issues in favor of Charleston. The Lavaca District raises three points for reversal: first, that the 1929 order of the Sebastian County Board is binding and not subject to collateral attack; second, that any subsequent consolidation or substantial change of school district boundaries without County Board action or approval is void; third, that the trial court erred in holding that Lavaca and the Sebastian County Board of Education are estopped from challenging the boundaries asserted by the Charleston District.

With regard to appellant’s first point, the record of the 1929 action of the County Board is not subject to a collateral attack at this late date. As it is the only order appearing of record, it is valid and binding in the absence of an estoppel, if estoppel is available.

Likewise, any substantial change in school district boundaries without county board approval is not valid unless a substantial factual basis exists to support an estoppel, if the doctrine of estoppel is available.

It is clear that a resolution of the entire dispute between these two parties hinges upon whether or not the doctrine of estoppel is available to Charleston, and, if so, whether the record supports Charleston’s allegation and the trial court’s application of the doctrine. As a general proposition, estoppel is not available against a sovereign. Arkansas State Highway Commission v. Lasley, 239 Ark. 538, 390 S.W.2d 443 (1965). It should be noted at the outset, in answer to the appellants’ argument, that it is clear from the record that the doctrine of estoppel is not asserted by the appellee for the purpose of altering the boundaries of an existing district; instead it is asserted as a defense to a claim by the appellants that the disputed lands are wrongfully included in the Charleston District.

The factual basis for the trial court’s application of the doctrine is abundantly sufficient, again, if the doctrine is available in this instance.

We have said that an estoppel may be supported when one has deliberately done an act or said a thing, and another who had a right to do so has relied on that act or words, shaped his conduct accordingly, and will be injured if the former can repudiate the act or recall the words. Baker-Matthews Lumber Co. v. Bank of Lepanto, 170 Ark. 1146, 282 S.W.2d 995 (1926), citing Trapnall v. Burton, 24 Ark. 371, (1866). For silence alone to constitute an estoppel there must be both the opportunity and the duty to speak. The action of the person asserting the estoppel must be the natural result of the silence, and the silent party must be in a situation to know that someone is relying on the silence to his detriment. Baker-Matthew Lumber Co. v. Bank of Lepanto, supra.

Though the doctrine had its beginnings in equity, we have long held that estoppel in pais may be set up in actions at law as well as in suits in equity. Moorehead v. Universal C.I.T. Credit Corporation, 230 Ark. 896, 327 S.W.2d 385 (1959).

In spite of the general rule that estoppel is not available against a sovereign, we have recognized that in actions between school districts — each being a “sovereign” in the technical sense — estoppel may be available.

In the early case of Cotter Special School District No. 60 v. School District No. 53, 111 Ark. 79, 162 S.W. 59 (1913), the issue before the court was an order void on its face whereby the county court, without authority, changed the boundaries of the complaining district. Though admittedly dicta and unnecessary to the decision in that case, the court observed that neither the school directors nor the people had acquiesced over a long period to the condition created by the void order and thus were not estopped from seeking their remedy. Again, in Carter Special District v. Hollis Special School District, 173 Ark. 781, 293 S.W. 722 (1927), the court, quoting with approval the estoppel language contained in Cotter Special School District No. 60, observed that a delay of ten years, absent any “special circumstances,” was insufficient in that case to create an estoppel.

In Magnolia School District No. 14 v. Rural Special District No. 3, 202 Ark. 49, 149 S.W.2d 579 (1941), the court quoted the language from Cotter and went on to observe that “special circumstances” as referred to in Cotter existed; the court then applied the doctrine of estoppel to avoid an inequitable result.

The lands at issue in this case have been assessed as being in the Charleston District, and the tax revenue received has been paid to that district for over 40 years, without any objection by Lavaca. But the admitted fact that clinches the application of the doctrine is that school-age children living within the disputed area have long been required first to obtain the consent of the Charleston District before Lavaca would consider their admission to the Lavaca Schools.

We choose, in this instance, to follow the exception to the general rule as that exception was applied in Magnolia and permit the application of the doctrine of estoppel to resolve this boundary dispute between school districts — a dispute amounting to a contest between sovereign and sovereign.

Affirmed.

Glaze, J., dissents.


author: Dale Price, Justice.

text:
    John SANDERS v. STATE of Arkansas
    90-165
    798 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990

      William R. Simpson, Jr., Public Defender, by: Ted Thomas, Deputy Public Defender, for appellant.

      Steve Clark, Att’y Gen., by: Sandra Bailey Moll, Asst. Att’y Gen., for appellee.
   Dale Price, Justice.

The appellant, John Sanders, appeals from the probate court’s denial of his motion to dismiss. He contends the probate court lost jurisdiction to commit him to the Arkansas State Hospital due to the failure of the Arkansas Department of Human Services (ADHS) to file a psychiatric or psychological report within thirty days following the entry of his order of acquittal pursuant to Ark. Code Ann. § 5-2-314 (Supp. 1989). We are unable to address this argument on its merits because the record does not contain the circuit court’s order of acquittal. Drone v. State, 303 Ark. 607, 798 S.W.2d 434 (1990).

The record consists of the report of ADHS dated February 27, 1990, proceedings of the commitment hearing conducted on March 8, 1990, and the probate court’s order of commitment of March 9,1990. It is well settled that an appellant must bring up a record sufficient to show the trial court was wrong. Malone v. State, 294 Ark. 376, 742 S.W.2d 945 (1988).

The probate court’s denial of the appellant’s motion to dismiss is therefore affirmed.

Affirmed.


text:
    James CHIASSON v. STATE of Arkansas
    RC 90-58
    798 S.W.2d 927
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990
    Pro Se Motion for Rule on the Clerk; granted.

      Appellant, pro se.
    No response.
   Per Curiam.

The petitioner James L. Chiasson pleaded guilty in 1986 to one count of incest. In 1989 he filed a timely petition to vacate the conviction. The petition was styled a petition for post-conviction relief pursuant to Criminal Procedure Rule 37, or in the alternative, a petition for writ of habeas corpus. The petition was denied and an order entered January 23, 1990. The petitioner, who did not file a timely notice of appeal with the circuit clerk, has now tendered the record to this court. He seeks a rule on the clerk to lodge the record despite the untimely notice of appeal.

We will grant a belated appeal of an order denying a petition for post-conviction relief if good cause is shown for the petitioner’s failure to file a timely notice of appeal. Peterson v. State, 289 Ark. 452, 711 S.W.2d 830 (1986). We have held that good cause can be established by the petitioner where the state is unable to demonstrate that the circuit clerk promptly provided the petitioner with á copy of the court’s order as required by Criminal Procedure Rule 37.3. Here, the petitioner contends that he was not provided a copy of the order until March 13, 1990, after the time for filing a timely notice of appeal had elapsed. As the state has indicated that it has no objection to the granting of the motion for rule on the clerk, it may be assumed that the state is unable to demonstrate that the circuit clerk complied with Rule 37.3. Therefore, we will permit the record on appeal to -be lodged. See Porter v. State, 287 Ark. 359, 698 S.W.2d 801 (1985).

Motion granted..


text:
    Rodney Lamont HARRIS v. STATE of Arkansas
    RC 90-66
    798 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered December 10, 1990

      William R. Simpson, Jr., Public Defender, by: Howard W. Koopman, Deputy Public Defender, for appellant.
    No response.
   Per Curiam.

Petitioner, Rodney Lamont Harris, by his attorney, Howard W. Koopman, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on his part.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).

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


text:
    Stacey HOWARD v. George HICKS
    90-166
    800 S.W.2d 706
    Supreme Court of Arkansas
    Opinion delivered December 17, 1990

      Christopher Carter, for appellant.

      Roy E. Danuser and L. Gray Dellinger, for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Stacey Howard, brought this action as attorney in fact for his common-law wife, Deborah A. Knight. Howard seeks to recover damages from the appellee, George Hicks, for the alleged trespass upon Ms. Knight’s property to cut and remove hay.

The trial court granted Hicks’s motion for directed verdict at the close of Howard’s case on the basis that Howard had failed to properly prove each element of damage. Howard appeals alleging the trial court erred “in granting a summary judgment.”

For the sake of clarity, we note first that this case involves a directed verdict and not a summary judgment. Accordingly, in Johnson v. Arkla, Inc., 299 Ark. 399, 771 S.W.2d 782 (1989) (citing Boykin v. Mr. Tidy Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987)), we stated that, in addressing the issue of whether a directed verdict should have been granted, we must view the evidence in the light most favorable to the party against whom the verdict is sought and give it the highest probative value, taking into account all reasonable inferences deducible from it. Where the evidence is such that fair-minded people might have different conclusions, then a jury question is presented, and the directed verdict should be reversed.

In this case, Howard presented testimony that Hicks had made five cuttings of hay during 1986-88 of approximately 700 bales of hay per cutting and that the value of a bale of hay was approximately $1.00. Howard asserted that Hicks had cut the hay on Ms. Knight’s property without her permission and claimed resulting damages. Hicks, in his pleadings, defends on the basis of consent through Ms. Knight’s step-father, the prior owner of the property, agency, and Ms. Knight’s own acquiescence.

Hicks’s motion for directed verdict was based on the premise that Howard had not presented any evidence as to Hicks’s cost of production in cutting and baling the hay. The trial court agreed and granted the motion.

Liability and the measure of damages in this case, if any, depend upon a determination of whether Hicks was a trespasser and, if so, whether the trespass was willful or unintentional.

We need only say that by requiring Howard to prove the value less costs, the trial court assumed that there was a trespass and that the trespass was unintentional or in good faith. That was error because a jury could have concluded that there was no trespass at all or that the trespass was willful.

Reversed and remanded.


author: Jack Holt, Jr., Chief Justice. Dale Price, Justice,

text:
    Joseph MACK and Christine Mack; and The Estate of David Wayne Mack, Christine Mack, Administratrix v. Billy G. WILKERSON and T & S Sawmill, Inc.
    90-283
    801 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered December 17, 1990
    [Rehearing denied January 14, 1991.]

      Green and Henry, by: J.W. Green, Jr., for appellants.

      Smith, Eilbott & Humphries, by: Alan R. Humphries, for appellees.

      Corbin and Brown, JJ., not participating.

   Jack Holt, Jr., Chief Justice.

This case involves a suit for personal injuries and wrongful death.

On the morning of December 2, 1987, the appellee, Billy Wilkerson, was driving a tractor/trailer rig loaded with sawdust. Wilkerson was employed by the appellee, T & S Sawmill, Inc. (Sawmill), which also owned the rig that Wilkerson was driving. North of Pine Bluff, Wilkerson approached the Highway 79 bridge over the Arkansas River; the highway at that point had four lanes — two lanes each going north and south. An accident on the bridge had blocked both south-bound lanes; as a result, Wilkerson stopped his truck in the outside lane behind a line of stopped vehicles. Wilkerson turned on his flashing lights, locked his trailer brakes, and waited in his truck for the accident to be cleared. A Chevrolet Blazer was parked behind other stopped vehicles on the inside lane next to Wilkerson.

Approximately ten minutes later, the appellant, Joseph Mack, approach the bridge from behind Wilkerson. Mack was also driving a tractor/trailer rig and his son, David Mack, was a passenger. Traveling at an estimated speed of 35 miles per hour, Mack was unable to prevent his rig from colliding into both Wilkerson’s rig and the Blazer. As a result, Mack was injured, and his son was killed.

Mack brought suit against Wilkerson and Sawmill and claimed that his accident was a result of Wilkerson’s negligence; the Estate of David Mack also filed suit against the appellees for wrongful death. The cases were consolidated for trial, and the jury found in favor of Wilkerson and Sawmill.

The appellants assert two points of error on appeal: 1) that the trial court erred in refusing to give their requested jury instruction AMI 601 containing Ark. Code Ann. § 27-51-1303 (1987) and Arkansas Motor Carrier Act, 1955,49 C.F.R. Ch. Ill § 392.22 (10-1-89 ed.), and 2) alternatively, that the trial court erred in refusing to give their requested jury instruction AMI 601 containing only section 27-51-1303. Both arguments are without merit, and we affirm.

Section 27-51-1303 addressed the stopping, standing, or parking outside of business of residence districts and provides in pertinent part as follows:

(a)(1) Upon any highway outside of a business or residence district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled part of the highway when it is practicable to stop, park, or leave the vehicle off such part of the highway. In every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles, and a clear view of the stopped vehicles shall be available from a distance of two hundred feet (200') in each direction upon the highway.
(Emphasis added.)
* * * *

Section 392.22 addressed emergency signals with reference to stopped vehicles and provides in pertinent part as follows:

(b) Placement of warning devices
(1) General rule. Except as provided in paragraph (b)(2) of this section, whenever a vehicle is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall as soon as possible, but in any event within 10 minutes, place the warning devices with which his vehicle is equipped in conformity with the requirements of § 393.95 of this subchapter, either three emergency reflective triangles, three electric emergency lanterns, three liquid-burning emergency flares, or three red emergency reflectors in the following manner:
(Emphasis added.)
* * * *

In Burchfield v. Carroll, 255 Ark. 245, 499 S.W.2d 620 (1973) (citing American Bus Lines, Inc. v. Merritt, 221 Ark. 596, 254 S.W.2d 963 (1953)), we noted with reference to Ark. Stat. Ann. § 75-647 (Repl. 1957) (the predecessor of section 27-51-1303) that the statute does not apply to stops arising out of the exigencies of traffic.

We note as well that section 392.22, by its own phrasing, excludes vehicles stopped for necessary traffic stops.

In this case, the evidence is undisputed that Wilkerson was properly stopped behind other vehicles in southbound traffic at the Highway 79 bridge because of an accident on the bridge. It is clear, then, that Wilkerson had stopped due to the exigencies of traffic and that the stop was a necessary one. Consequently, neither section 27-51-1303 nor section 392.22 applies to the circumstances of this case, and the trial court’s refusal to give an incorrect instruction is not error. See Davis v. Arkansas State Hwy. Comm’n, 290 Ark. 358, 719 S.W.2d 694 (1986) (citing Kanis v. Rogers, 119 Ark. 120, 177 S.W. 413 (1915)).

Accordingly, the judgment is affirmed.

Newbern and Price, JJ., dissent.

Dale Price, Justice,

dissenting. The majority opinion takes the position that Wilkerson was stopped due to exigencies of traffic. This is simply not borne out by the facts.

Black’s Law Dictionary, Fifth Ed. (1979), defines “exigence” as:

Demand, want, need, imperativeness. Something arising suddenly out of the current of events, any event or occasional combination of circumstances calling for immediate action or remedy; a pressing necessity; a sudden and unexpected happening or an unforeseen occurrence or condition .... State of being urgent or exigent; pressing need or demand; also, case requiring immediate attention, assistance, or remedy; critical period or condition pressing necessity. . . .

I quote appellee Wilkerson’s testimony as abstracted:

[A]t the point where I was stopped, there was nothing that would have kept me from pulling my vehicle over on the shoulder ... It was a new truck and it was equipped with some safety warning devices. It had triangular warning devices. I knew they were there, what they were for, and how to use them.
I pulled my truck up in the right, outside lane of traffic and stopped 12 or 13 feet behind the vehicle in front of me. I had been forewarned by CB radio that there was a wreck up in front of me. I wasn’t even up to the bridge yet. I was probably 100 yards or less from the bridge ... There was plenty of shoulder for me to pull my truck over on and there was nothing to keep me from pulling over.
I had safety devices in my truck and knew how to use them. When I pulled up there I locked my brakes on my truck trailer and turned my flashers on. I was conscious of the fact that there could be someone come up behind me. I didn’t get out of my truck because I was afraid I’d get hurt — get killed — because it was so foggy you couldn’t see.
I sat in the cab of my truck for 10 minutes before the accident occurred with the safety devices, triangular warning facilities, right there in the truck with me. I did not get out and go back and put up the triangular warning devices. I did not ever move my truck over to the right. I never moved my truck again after I pulled it up there and locked the wheels and sat there in it.
I was forewarned that there were some problems up on the bridge.

This was not a situation where Wilkerson had stopped due to the exigencies of traffic. Wilkerson knew of the wreck ahead of him before he ever got to the bridge. He had been warned of the problem by CB radio. There was plenty of shoulder for him to pull over on. He had warning devices on board which he declined to use for fear, he says, that he might get hurt or killed.

The refused instructions merely set out the duty upon Wilkerson imposed by statute and regulation. They did not deprive Wilkerson of any argument concerning his own lack of negligence or negligence on the part of the appellants. The concluding paragraph of AMI 601 tells the jury that a violation of the statute and regulation, although not necessarily negligence, is evidence of negligence to be considered by the jury along with all the facts and circumstances in the case.

The appellants’ theory of the case and the evidence they presented required the giving of AMI 601, including the statute and regulation. The majority relies on Burchfield v. Carroll, 255 Ark. 245, 499 S.W.2d 620 (1973), which, in my view, has no application inasmuch as the accident there occurred in a residential section. The statute was not applicable because it specifically excludes residential and business districts.

The majority also relies on American Bus Lines, Inc. v. Merritt, 221 Ark. 596, 254 S.W.2d 963 (1953). I, too, rely on that case wherein the court stated:

Every case must be decided on its own facts; and in some cases, as here, it becomes a question for the jury as to whether it is practical to stop the vehicle off the highway. In others, as the Barboro case, where it is obvious that it would have been impractical to remove the car from the pavement before stopping to permit the passage of another vehicle before turning to the left, and where reasonable minds cannot reach any other conclusion, then it becomes a matter of law that the statute is not applicable. But here, where reasonable minds may differ as to whether it is practical to remove the vehicle from the pavement before stopping, it becomes a question for the jury, and the statute may be taken into consideration in determining whether there was negligence in stopping the bus on the pavement.

This accident occurred outside a business or residential district. There were no exigencies of traffic because Wilkerson had advance notice before he ever reached the accident scene. The appellants had the right to submit their theory of the case to the jury based on the statute and regulation.

I restate Merrit as follows: “where reasonable minds might differ as to whether it is practical to remove the vehicle from the pavement before stopping, it becomes a question for the jury.”

I would reverse and remand for a new trial.

Newbern, J., joins in the dissent.