text:
    MILLERS CASUALTY INSURANCE COMPANY v. William E. MURPHY et ux
    73-78
    497 S.W. 2d 15
    Opinion delivered July 16, 1973

      Griffin Smith, for appellant.

      Floyd J. Lofton, for appellees.
   John A. Fogleman, Justice.

This action was commenced September 9, 1972, as a petition for declaratory judgment under Ark. Stat. Ann. §§ 34-2501, et seq. (Repl. 1962) by appellees against appellant, seeking to determine rights, status and liability under an automobile liability insurance,policy issued by appellant to appellee William E. Murphy. The policy, was issued September 4, 1970, for a six-month period ending March 4, 1971, and was renewed for the period ending September 4, 1971. The specific issue before the court was whether or not the policy was in force subsequent to September 4, 1971.

William Murphy testified that the premium for the period in question had not been tendered on time because of personal financial difficulties. On September 19, 1971, his wife was involved in an accident which resulted in personal injury to another. The next day, Murphy said, he went to the office of Ray Holland to inquire about employment in Holland’s trucking business, and to secure an “advance” until a paycheck from a prior employer was received, so he might have funds to pay his insurance premium. Murphy said that while there, he telephoned J. M. Pickard, appellant’s agent in Little Rock with whom Murphy had dealt regarding the policy, to inquire about the status of his policy. The evidence is in conflict as to the date of this call and as to what was said in this conversation and in a subsequent meeting between Murphy and Pickard.

Appellant concedes that even though the policy expired on September 4, 1971, a 20-day “grace period” was in effect until September 24, so that if payment of the late premium was made during this period, the policy would have been revived as of September 4. During this 20-day period, the local agent of appellant (Pickard) had authority to accept this late payment, and is, in fact, notified by appellant of each overdue account. The specific fact question before the chancellor was whether or not Murphy tendered payment to appellant’s agent before or after September 24. The chancellor found that payment was tendered on September 20, and that the policy was in force at the time the claim arose. There is no contention that the premium was actually paid, as whatever tender made was refused.

Appellant alleges two points for reversal of the chancellor’s decree. Neither requires a reversal. Appellant contends that both admission and consideration of testimony pertaining to a check issued by Holland to Murphy on September 20 in the amount of $100 were error under our holding in Merchants and Planters Bank v. Humbarger, 201 Ark. 910, 147 S.W. 2d 369. The check was not formally introduced during trial, but only referred to by the parties. The chancellor allowed appellees five days after the trial to submit the check if it could be located by Holland. Apparently it was transmitted to the court after the trial, as promised. It was for $100, bore the date of September 20, 1971, and an endorsement indicating that it was cashed at a Texaco truck center. The check was used by appellee to evidence the “advance” given September 20 by Holland. Appellant contends that under Merchants the check was improperly admitted to prove the payment of the premium. We do not consider Merchants controlling in this situation. Instead we find it readily distinguishable since appellee does not contend that the introduction of the check was evidence of payment, but only that an advance had been made to him on the date of the check. Two prior cases are nearer in point here. They are Royal Neighbors of America v. McCullar, 144 Ark. 447, 222 S.W. 708, and Chase v. Carney, 60 Ark. 491, 31 S.W. 43. In Royal Neighbors, the appellant organization offered death benefits to its members, for which premiums were paid by means of monthly dues payments. As in the case at bar, a controversy arose as to whether or not a payment had been made. Testimony of the husband of the insured was admitted which showed that he had sent his wife $50 and insisted that she pay her lodge dues for. the remainder of the year. We held that the admission of this testimony was reversible error because the inference to be drawn was that the wife paid the dues, as she had the money to do so and could not have forgotten in light of the reminder. Our holding was based upon the doctrine of “Res inter alios acta alteri nocere non debet.” This doctrine is nothing more than a recognition of the lack of relevancy that transactions between a party and a third person have to transactions between the parties themselves, especially as in Royal Neighbors, where such transactions are sought to be used for proof of an important event such as the unlikelihood that the wife would have thereafter failed to make payment of an insurance premium when due, or as in Merchants, the deposit of money in a banking account. As stated in Royal Neighbors, a litigant should not be affected by acts, conduct or declarations of strangers to a transaction. This rule should not be extended further than to exclude testimony about third party transactions when they are not relevant to the main issue.

The general rule which we follow is stated in Jones on Evidence 399, § 4:9 (Sixth Edition) as follows:

Ordinarily conduct of or transactions between third parties or strangers to the action are irrelevant on the issue of the conduct of a party to the action. This is generally true also with respect to transactions between a party and a stranger to the action. But the exclusion is not, or should not be, on the ground that the transaction is collateral, but because relevancy is not established. When relevancy appears, evidence of the transaction should be admitted if its value as evidence is not outweighed by the usual counterbalancing factors. The modern trend is away from a rigid application of a rule of exclusion.
Where there is a relationship established between a party and third persons which tends to make him responsible for their conduct, the transaction would be relevant. Also the circumstances of a particular case may render transactions with or among third persons relevant and admissible for a limited purpose.

We recognized and utilized the rule of relevancy in Chase v. Carney, supra. We held exclusion of evidence of a third party transaction erroneous because of its relevancy to an issue in the case and its tendency to corroborate the testimony of a party where the testimony of the two parties to the transaction was contradictory. The issue was whether a dispute as to a real estate title was pending at the time one party obtained $200 from the other. One of them contended that it was a loan, the other that it was in payment for settling the adverse title claim.

In the case at bar, the check and its issuance were relevant to the issue as to the time of tender. Pickard admitted that Murphy had called him on the telephone relative to the insurance policy and that the Murphys came to his office. While he could not recall the date, he was positive that it was after the grace period. He had no record pertaining to the call or the visit, but insisted that Murphy did not inquire in the telephone conversation whether the policy was in effect and that, upon their visit to his office, he told the Murphys that the policy had expired and said that he had called the company for a check of their records. Murphy had testified that he had called Pickard from Holland’s office the day the check was written and asked if the policy was issued, but did not advise Pickard of the loss. Murphy said that Pickard told him in the telephone conversadon that the policy was in effect but that he needed to get down and pay a premium. Murphy testified that he tendered the money to Pickard, but that Pickard became “real cold” and rejected the payment when told about the collision. Murphy said that Pickard tried to call his home office at this time, but, when unable to reach the person he sought to talk with, offered prospective coverage in another company to the Murphys. Murphy’s testimony was corroborated by that of his wife. On rebuttal Ray Holland, who had recommended Pickard to Murphy when the policy was taken out, testified that he “eavesdropped” the telephone conversation in his office, and that Murphy did ask Pickard if the policy was in effect and that Pickard said that Murphy had until the following Thursday night to make a premium payment.

Thus, the check and Holland’s testimony were relevant in order to show the time of the alleged tender by appellee to Pickard, the time of the telephone conversation between appellee and Pickard, and where appellees were on the date in question. So, there was no error in the admission of the check. It appears that appellant may have recognized the relevancy of the check itself because the court’s inquiry whether there would be any objection if the original check were found and tendered was answered in the negative. Although a copy of the letter of transmittal of the check to the chancellor went to appellant’s attorney, it does not appear that any further objection to its consideration was registered.

Appellant’s other contention is that the chancellor’s findings were against the preponderance of the evidence, particularly when the testimony of appellant and Holland pertaining to possession of the $100 is removed from consideration. For the reasons hereinabove stated, this evidence is considered by us in determining that the decree of the chancellor was not clearly against the preponderance of the evidence. Appellant’s main objection in the trial court (but not argued here) was that the testimony of Ray Holland relative to the telephone conversation was illegally obtained and improper because he had been listening on an extension. Of course, this point is not before us, and thus Holland’s testimony about the conversation was corroborative of appellee’s testimony that Pickard recognized that the policy would be in force if payment was tendered prior to September 24. Thus, the testimony of appellee and his wife that payment was tendered and rejected, Pickard’s actions in filling out an accident report when the Murphys came to his office and the contradictory testimony of Pickard based only on recollection and the refreshing of his memory by a pretrial telephone conversation with an official of Millers present questions of credibility which prevent us from saying that the decree is clearly against the preponderance of the evidence, even if we might otherwise entertain any doubt.

The decree is affirmed.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Charles Edgar LEASURE v. STATE of Arkansas
    CR 73-71
    497 S.W. 2d 1
    Opinion delivered July 16, 1973

      Don Langston, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Leasure’s conviction of rape of an eleven-year-old female was affirmed here on January 31, 1972. Leasure v. State, 251 Ark. 887, 475 S.W. 2d 535. His request for permission to seek postconviction relief was granted by our per curiam order entered on October 9, 1972. By that order he was restricted to proceeding on his allegations pertaining to ineffective assistance of counsel. His specific allegations in his petition filed in the circuit court in which he was convicted were that: he was without counsel during eleven days of custodial interrogation by police officers prior to arraignment; his court-appointed attorney did not adequately consult with him before trial; his court-appointed attorney, Charles Ledbetter, refused his request for the subpoena of two witnesses not named in the petition; Led-better failed and refused to demand a jury trial and directed his efforts toward appellant’s entering a plea of guilty; Thomas C. Pitts served as appellant’s attorney on appeal under appointment by the circuit court, in spite of appellant’s declining his services, and failed to furnish appellant with a copy of the brief filed, so that appellant was unaware of the matters presented to the court on his behalf.

This appeal is taken from the order of the circuit court denying appellant any relief on his petition. The order was based upon an extensive review of the files and record in the case without conducting any hearing but after the judge had requested and been furnished briefs on the matter by the Public Defender and Prosecuting Attorney for Sebastian County. This order was made by the same circuit judge who tried the case, and who, as a result, occupied the best possible vantage point from which to evaluate the effectiveness of appointed counsel’s assistance to appellant from a review of files and records. His perspective is far better than ours, because he is not beset by the same difficulties inherent in retrospective appellate evaluation of a cold and unfamiliar record. See Mitchell v. Stephens, 353 F. 2d 129 (8th Cir. 1965), cert. denied, 384 U.S. 1019, 86 S. Ct. 1966, 16 L. Ed. 2d 1042 (1966). We find no error in the denial of relief to appellant or in denying him an evidentiary hearing.

The most significant and persuasive single factor in our consideration of the question whether Leasure was entitled to an evidentiary hearing is his request to the trial judge after the affirmance here that the very same attorney that he charges with being ineffective in his defense be appointed to represent him in a post-trial proceeding. Not only this, but the record disclosed that Leasure’s request for appeal after his trial incorporated a wish that Ledbetter or an attorney equally as “good” be appointed to conduct the appeal. These circumstances tempt us to label appellant’s entire petition as frivolous.

Because of the detailed statement of facts disclosed by the trial judge’s review of the record and the extensive statement of his findings and conclusions, we will not elaborate upon each facet of them, but will confine our remarks to the essence of arguments advanced on appeal. At the outset, we reiterate that we will presume, in the absence of a contrary showing, that: a duly licensed, appointed attorney is competent; a charge of inadequate representation can prevail only if the acts or omissions of an accused’s attorney result in making the proceedings a farce and a mockery of justice, shocking the conscience of the court, or the representation is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of and correct it. Davis v. State, 253 Ark. 484, 486 S.W. 2d 904. See also, Franklin and Reid v. State, 251 Ark. 223, 471 S.W. 2d 760; Slawek v. United States, 413 F. 2d 957 (8th Cir. 1969); Kress v. United States, 411 F. 2d 16 (8th Cir. 1969). We also deem it inappropriate, in postconviction proceedings, to grant an evidentiary hearing, when allegations of ineffectiveness of counsel relate only to matters ordinarily within the realm of counsel’s judgmerit, who should have broad latitude in exercising his judgment in the conduct of his client’s defense. Poole v. United States, 438 F. 2d 325 (8th Cir. 1971); Mitchell v. United States, 104 U.S. App. D.C. 57, 259 F.2d 787 (1957), cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958); Taylor v. United States, 282 F.2d 16 (8th Cir. 1960). We subscribe to the principle that the accused has the burden of demonstrating that he was prejudiced by counsel’s alleged incompetence and that showing mere errors, omissions or mistakes, improvident strategy or bad tactics will not suffice even to require an evidentiary hearing. Edwards v. United States, 103 U.S. App. D.C. 152, 256 F. 2d 707 (1958), cert. denied, 358 U.S. 847, 79 S. Ct. 74, 3 L. Ed. 2d 82 (1958); State v. Sinclair, 236 A. 2d 66 (Me. 1967); Snead v. Smyth, 273 F. 2d 838 (4th Cir. 1959); Kress v. United States, supra; Taylor v. United States, supra; 21 Am. Jur. 2d 343, 348, Criminal Law, §§ 315, 319.

The reasons for not requiring an evidentiary hearing on every postconviction petition are aptly reviewed in Mitchell v. United States, supra. That court mentioned that such a procedure would disrupt the established function of a trial judge and destroy his impartiality and impair trial counsel of the exercise of independent tactical judgment by requiring the judge, during trial, to direct his attention to the efficacy of defense counsel’s trial tactics. It also recognized the devastating effect upon a trial inherent in affording defense counsel an opportunity to correct errors in judgment that might subsequently be suggested during the trial, and the relative impossibility of a retrospective determination that a different course of action would have produced a different result. The court, speaking through Judge Prettyman, said:

It has been repeated so many times as to become axiomatic that convicted felons almost unanimously relish the prospect of putting to public judicial test the competence of their erstwhile defenders; that almost any judge or lawyer can point to potential mistakes in reviewing the record of a lost cause; and that even trial counsel, having lost, can almost invariably enumerate what in the hindsight of disaster appear to have been errors.
life life Jfe tP Tp 'Tv'
Obviously such a proceeding, if permitted generally, would ensue upon almost every guilty verdict; almost every convicted person can think up several points in his trial where the course taken by his lawyer could have been different; and he has nothing to lose by a few extravagant claims.
Trial counsel must make many decisions of an almost infinite variety in the course of a criminal trial: whether to advise a plea to a lesser offense; whether to object; whether to offer a witness of possibly doubtful credibility or with a criminal record; whether to risk crystallizing the view of the judge at that point by a motion for directed verdict before the defense testimony is in; whether to advise the defendent to take the stand and subject himself to cross examination; how to argue the case to the jury; whether to advise the defendant not to go to trial at all but rather to rely upon the mercy of the court. All these and more are practical questions and very real questions. Bad judgment, or even good but erroneous judgment, may result in adverse effects. These are simple facts of trial; they are not justiciable issues.
# # #
A convicted person cannot bring about a judicial hearing upon and determination of the trial competence of defense counsel by making allegations which, either on their face or after initial testing for verity, fail to indicate a lack of skill so great that the accused in realistic fact had not a fair trial. An accused cannot bring about a judicial evaluation of the quality of a defense; he is entitled only to allege and show that the proceeding was not a fair trial.
* * *
If a movant under Section 2255 makes no allegations of ineffectiveness or incompetence of counsel, save in matters normally within the realm of counsel’s judgment, he is not entided to a hearing. Under such circumstances a hearing would be useless, an inexcusable waste of time, energy and money, because even if the movant proved what he alleged he would not be entitled to relief. The substantial considerations we have discussed forbid that a useless formality, fraught with serious consequences to the administration of law, be indulged to no purpose.

There is no merit in appellant’s argument that our grant of permission to proceed under Criminal Procedure Rule No. 1 while we had the record of the trial before us implies an intention on our part that an evidentiary hearing be held. Not so. Had we intended our per curiam to prescribe procedures in the trial court, it would have done so in specific language. Furthermore, contrary to the inference drawn by appellant, we disavow any intention or inclination to conduct a review of the record submitted upon appeal in an effort to determine whether there is merit in an allegation of ineffective assistance of counsel, before granting or denying permission to a petitioner to proceed in the court or original jurisdiction. Our review of the appellate record in acting upon such requests for permission will be restricted to determinations whether an issue was, or could have been, raised and decided in the original trial. This case clearly demonstrates both the superiority of the trial judge’s perspective in these matters and the high probability that the files contain documents which could not have appeared in an appellate transcript or were properly omitted.

Appellant’s suggestion that we should require an evidentiary hearing because he may have been “overborne” by his appointed counsel to consent to trial without a jury,, as we did in Cullens v. State, 252 Ark. 995, 482 S.W. 2d 95, is ill-taken. In the first place, the trial judge’s review of the files and record is much more comprehensive here than there. And then, the allegation that Ledbetter failed and refused to demand a jury trial and devoted his efforts toward the entry of a guilty plea falls far short of assertion of coercion of Leasure to waive a jury trial. Furthermore, we cannot infer that the extensive trial proceedings without a jury and without any expression of disapproval by appellant were without his approval and consent, particularly in view of the opportunity given to appellant to speak after he was found guilty but before he was sentenced. We agree with the learned circuit judge that it is the better practice for the court to specifically request an expression of a knowing approval or disapproval of a waiver of jury trial from a defendant himself, but we do not think that the failure to do so gives rise to a presumption that the accused did not approve or knowingly acquiesce in a waiver expressed by his attorney. This is in accord with the general rule applied by the trial court that such a waiver need not be announced by the accused personally but may be stated by counsel, and that the accused’s silence when and after his attorney waives his right to a jury trial in his presence may be taken to constitute knowing acquiescence therein. State v. Jelks, 105 Ariz. 175, 461 P. 2d 473 (1969), cert. denied, 398 U.S. 966, 90 S. Ct. 2179, 26 L. Ed. 2d 549 (1969); People v. Novotny, 41 Ill. 2d 401, 244 N.E. 2d 182 (1969); Cullings v. State, 205 Md. 22, 106 A. 2d 69 (1954); State v. Lopez, 22 Utah 2d 257, 451 P. 2d 772 (1969); State v. Skaff, 22 Wis. 2d 269, 125 N.W. 2d 561 (1964). The record of appellant’s trial reveals that his appointed counsel stated, at the very beginning when appellant was present, that, by agreement with the state, both appellant’s motion to suppress the evidence and the hearing of his defense of insanity, on the merits, be tried to the court. This agreement was confirmed by the prosecuting attorney and the circuit judge. Later, in examining a witness, whose testimony related only to the question whether a rape had been committed, appellant’s counsel again stated that the case was being tried to the court without a jury. The court then confirmed the state’s waiver of capital punishment, and stated that it was proceeding upon the premise that the case could not be tried by the court without waiver of the death penalty. After the first hearing was recessed to a later date, the court, upon calling the case for further hearing, repeated that it had been agreed by the defense that the court would hear the matter on its merits without a jury, if the motion to suppress was not granted. Before sentencing and before granting appellant his right of allocution (which was waived), the trial judge repeated that the trial was without a jury, so he saw no necessity for delay of sentencing for 48 hours. The judgment recited that jury trial had been waived. We deem the circumstances adequate to show acquiescence in counsel’s waiver. See People v. King, 30 Ill. App. 2d 264, 174 N.E. 2d 213; Eliachar v. United States, 229 A. 2d 451 (D. C. Ct. App. 1967).

The calling of witnesses in a criminal trial is a matter which is normally within the realm of the judgment of counsel. Poole v. State, 438 F. 2d 325 (8th Cir. 1971). We are certainly unwilling to find error in the denial of an evidentiary hearing on this point, when the names of the witnesses and the general purport of their anticipated testimony are not even suggested.

Even though the record discloses that Leasure was advised of Pitts’ appointment, it does not disclose any objection by Leasure. He seems to have had no impediment to free communication with the trial judge on other occasions, so this failure to object must be accorded some significance. This facet of appellant’s petition may well have been appropriately abandoned, because we find no argument on this score in appellant’s brief.

We have considered and rejected as non-meritorious each and every point urged for reversal by appellant.

The judgment is affirmed.

      As to the significance of the right of allocution in such considerations, see Kress v. United States, 411 F. 2d 16 (8th Cir. 1969).


author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    N. B. KERSH v. Mary KERSH
    6227
    497 S.W. 2d 72
    Opinion delivered July 16, 1973

      Wendell O. Epperson, for appellant.
    J. Winston Bryant, for appellee.
   J. Fred Jones, Justice.

This is an appeal by N. B. Kersh from a chancery court decree denying his petition to modify a divorce decree in regard to alimony.

The facts appear as follows: Dr. Kersh and his wife, Mary, were married in 1945 and separated on or about January 20, 1969. They had one child who was of full age and married at the time of the separation. Following their separation, and in contemplation of divorce, Dr. and Mrs. Kersh entered into a written property settlement agreement on January 28, 1969, under which they made a complete division of their real and personal properties. On January 29, 1969, Mrs. Kersh filed her'petition for divorce alleging general indignities as grounds thé'refór. Dr. Kersh executed an entry of appearance and waiver on February 14, 1969, and it was filed on March ,4. The evidence on behalf of Mrs. Kersh consisted of her testimony arid thát of her supporting witness; Katherine Jones; taken 'by deposition. A divorce was granted' to Mrs. Kéfsh by decree filed ón March 4, 1969, and Dr. Kersh subsequently, remarried. * - .

The property settlement agreement consists of five pages in the transcript and under item seven on the second page án agreement pertaining to ■ alimony appeáp as follows:' ' '

“HUSBAND agrees to pay- to WIFE alimony in the sum of Four Hundred Dollars ($400.00) a month/ with the first such alimony payment being due on March 1st, 1969,-and a like payment in the'amóunt of $400.00 to.be due on the First day; of- each succeeding month thereafter until- such time as-the- death or remarriage of said WIFE. Further, in connection with this alimony to be paid to WIFE by HUSBAND, said HUSBAND agrees that he will,not' claim WIFE as a dependent for income tax purposes.” '■

No alimony is mentioned in the' divorce, decree but the decree does recite as follows:- -

“. . . the Court doth find: * * .Tha't the parties.Hereto have, previously • entered into a - property < settlement agreement which settles and disposes of all their property rights, and this property • settlement Agreement is incorporated herein by reference and made a part hereof as fully as. though set out herein .word for word.” - . ... - ■

On August IB, 1971, Mrs. Kersh filed a “Petition'for-Citation” alleging that on January 28, 1969, she and Dr. Kersh entered into a property settlement agreement whereby he agreed to pay her alimony- at $400 pen-month; that' the property settlement agreement was made -a part-of the decree, and that the defendant had failed and refused to make the payments as agreed. She prayed that Dr. Kersh be cited to show cause why he should not be held in contempt for refusal to comply with the order of the court.

Dr. Kersh then filed a “Petition to Modify Decree” in which he alleged and set out the property settlement agreement and alleged that there had been such change in circumstances as would warrant the reduction in the amount of alimony and support payments to the plaintiff by $200 per month. He prayed that the amount of alimony be reduced to $200 per month.

Mrs. Kersh' filed a demurrer to the petition for modification challenging the chancery court’s jurisdiction to modify the alimony provision of the property settlement agreement. Following a hearing on the petitions and demurrer, the court denied same under findings stated as follows:

“ 1. That the ‘Property Settlement Agreement’ and the alimony payments contained therein on the part of the Plaintiff and Defendant were agreed* to, between the parties, prior to the entry of the Decree, that said ‘Property Settlement Agreement’ is a binding contract between the parties and cannot be modified by this Court.
2. The Court further finds that the evidence submitted by the Defendant, N. B. Kersh, is insufficient to justify the change in alimony payments as contained in the ‘Property Settlement Agreement,’ assuming the Court had jurisdiction to effectuate such a change.”

On the record now before us, we are unable to say that the chancellor erred in finding that the property settlement agreement, including the alimony provision, was a binding contract between the parties and could not be modified by the court because of lack in jurisdiction of the subject matter.

It is clear from the record before us, that in contemplation of divorce, Dr. and Mrs. Kersh gave considerable attention to their property settlement agreement, which included Dr. Kersh’s agreement to pay to Mrs. Kersh $400 per month for the remainder of her life or until she remarried. It is apparent from the record that the agreement was carefully drawn by the attorney who presented the petition to the court upon entry of appearance and waiver by Dr. Kersh and the depositions of Mrs. Kersh and her witness. Neither of the parties personally appeared before the chancellor and apparently both parties were satisfied with the agreement they had made. Both Dr. and Mrs. Kersh were present in the attorney’s office when the property settlement agreement was dictated and signed by them and both of their signatures were witnessed by the attorney who prepared the instrument. Dr. Kersh did not agree in this instrument that he would be agreeable to the chancellor awarding $400 per month in alimony in the event a divorce was granted to Mrs. Kersh. He agreed to pay $400 per month over a specific period of time and further agreed in the same connection that he would not claim Mrs. Kersh as a dependent for income tax purposes.

We are of the opinion that Dr. and Mrs. Kersh entered into such independent contract for the payment of alimony as was discussed in Lively v. Lively, 222 Ark. 501, 261 S.W. 2d 409, wherein we said:

“Appellant first contends the chancellor was without authority to modify the decree because it was based on the prior agreement of the parties. Our cases hold that where a decree for alimony or support is based on an independent contract between parties which is incorporated in the decree and approved by the court as an independent contract, it does not merge into the court’s award and is not subject to modification except by consent of the parties. Pryor v. Pryor, 88 Ark. 302, 114 S.W. 700, 129 Am. St. Rep. 102; McCue v. McCue, 210 Ark. 826, 197 S.W. 2d 938; Bachus v. Bachus, 216 Ark. 802, 227 S.W. 2d 439. Although a court of equity may decline to enforce payments due under an independent agreement by contempt proceedings where changed circumstances render such payments inequitable, the wife retains her remedy at law on the contract. Pryor v. Pryor, supra.
There is a second type of agreement in which the parties merely agree upon the amount the court should fix by its decree as alimony or support, without intending to confer on the wife an independent cause of action. This type of agreement becomes merged in the decree and loses its contractual nature so that the court may modify the decree. Holmes v. Holmes, 186 Ark. 251, 53 S.W. 2d 226; Wilson v. Wilson, 186 Ark. 415, 53 S.W. 2d 990; Seaton v. Seaton, 221 Ark. 778, 255 S.W. 2d 954.”

See Law v. Law, 248 Ark. 894, 455 S.W. 2d 854, and Powell v. Pearson, 251 Ark. 1107, 476 S.W. 2d 802. See also Armstrong v. Armstrong, 248 Ark. 835, 454 S.W. 2d 660 where we quoted from Seaton v. Seaton, supra, as follows:

“ ‘Our decisions have recognized two different types of agreement for the payment of alimony. One is an independent contract, usually in writing, by which the husband, in contemplation of the divorce, binds himself to pay a fixed amount or fixed installments for his wife’s support. Even though such a contract is approved by the chancellor and incorporated in the decree, as in the Backus case, it does not merge into the court’s award of alimony, and consequently, as we pointed out in that opinion, the wife has a remedy at law on the contract in the event the chancellor has reason not to enforce his decretal award by contempt proceedings.
The second type of agreement is that by which the parties, without making a contract that is meant to confer upon the wife an independent cause of action, merely agree upon ‘the amount the court by its decree should fix as alimony.’ * * * A contract of the latter character is usually less formal than an independent property settlement; it may be intended merely as a means of dispensing with the proof upon an issue not in dispute, and by its nature it merges in the divorce decree.”

As already stated, the divorce decree in the case at bar did not mention alimony but did approve the agreement the parties had entered into. We conclude, therefore, that the chancellor did not err in holding that the agreement between Dr. and Mrs. Kersh was an independent contract which was not merged in the court decree, and that the chancery court was, therefore, without authority to change the agreement.

The decree is affirmed.

Foglkman, J., dissents.

John A. Fogleman, Justice,

dissenting. Detailing the testimony relating to changed circumstances would serve no useful purpose. Suffice it to say that, unlike the learned chancellor, I find a clear preponderance to require a modification of alimony, if the court had the power to grant the requested relief.

I am no less confused about the circumstances under which the chancery court may modify a decree under which alimony is paid than I was when Armstrong v. Armstrong, 248 Ark. 835, 454 S.W. 2d 660, and Law v. Law, 248 Ark. 894, 455 S.W. 2d 854, were decided. Once more, I find a situation parallel to that obtaining in Thomas v. Thomas, 246 Ark. 1126, 443 S.W. 2d 534, where we held that alimony payments were ordered by the court when the language of the decree incorporated a property settlement agreement, and held the decree enforceable through the court’s contempt powers. It is anomalous to me that a chancery court would have the jurisdiction and power to so enforce an agreed alimony payment but not to reduce the amount required to be paid when its burden becomes oppressive.

I regret that there has been no legislative action to clarify the confusion previous decisions have produced and to eliminate the judicial hair-splitting in these cases so aptly pointed out by the late Chief Justice Griffin Smith in McCue v. McCue, 210 Ark. 826, 197 S.W. 2d 938. I think this court would be justified in effecting a remedy by reading Ark. Stat. Ann. § 34-1213 (Repl. 1962) into every such agreement and decree, so that true alimony would be subject to modification in any case. I would do so.


author: Conley Byrd, Justice.

text:
    ARKANSAS RACING COMMISSION v. EMPRISE CORPORATION and SOUTHLAND RACING CORPORATION
    6147
    497 S.W. 2d 34
    Opinion delivered July 16, 1973

      Spitzberg, Mitchell if Hays, by: John P. Gill, for appellant.

      Nance, Nance if Fleming and Wright, Lindsey if Jennings, for appellees.
   Conley Byrd, Justice.

This is an appeal of the order of the Second Division, Pulaski Circuit Court, reversing an order of the Arkansas Racing Commission. The Commission held a hearing beginning June 14, 1971, which resulted in an order dated July 15, 1971, revoking the franchise of Southland Racing Corporation to conduct dog races at West Memphis, Arkansas, due to Southland’s involvement with Emprise Corporation. The Commission found that Emprise was a principal stockholder of undesirable personal background. Revocation was based upon authority of Ark. Stat. Ann. 84-2823.3(b) (Supp. 1971) which provides:

“The Commission may. . . revoke an existing franchise, if after investigation and hearing it determines that . . . principal stockholder of the . . . holder of a franchise is of undesirable personal background.”

On January 11, 1972, the Pulaski Circuit Court, while considering an appeal of the revocation order of the Commission, stayed that order from effect and enjoined the effect thereof “pending final adjudication of this proceeding”, and on February 15, 1972, reversed the Commission. The Trial Court concluded that the Commission order was arbitrary, capricious, characterized by abuse of discretion and that the participation of Commissioner Guy Newcomb constituted an error of law. We affirm because the racing commission had no authority to issue a conditional order of revocation and also because Mr. Newcomb was disqualified. A summation of the facts is necessary however to an understanding of the reasons involved.

The order of revocation issued by the Commission is as follows:

“IT IS THEREFORE ORDERED that the franchise of Southland Racing Corporation to conduct greyhound racing in Crittenden County, Arkansas, be and it is hereby revoked.
“IT IS FURTHER ORDERED that this order be suspended until January 14, 1972, and if during said period of suspension, the franchise holder shows by competent evidence that Emprise Corporation has divested itself of all of the capital stock of Southland Racing Corporation in excess of 10% thereof, then this order shall be set aside, held for naught, stricken from the records of the Commission and not be admissible in evidence in any future hearings against Emprise Corporation in this or any other state of the United States. If on or before January 14, 1972, no such evidence is produced, this order shall, on that date, become effective. The divesting of interest under this order shall mean transfer by sale or otherwise to any person who is not related by blood or marriage to a stockholder, director or officer of Emprise Corporation; and the conditions of which transfer shall not in any manner result in the transferee becoming obligated or indebted to Emprise Corporation or any one of its stockholders, directors or officers, or result in Emprise Corporation or one of its stockholders, directors or officers, being the owner or exercising control over the transferred stock.
“IT IS FURTHER ORDERED that any transfer of 10% or more of the common stock of Southland pursuant to the preceding paragraph shall not become effective until approved by the Commission and all transfers of Emprise stock, pursuant to the preceding paragraph, shall be promptly reported to the Commission by the Secretary of Southland Racing Corporation or its designee in writing.”

This order takes on added significance when we consider that by statute a statewide election is required to authorize the Commission to issue a new franchise. Furthermore, Ark. Stat. Ann. § 84-2827 dispels any authority of the Commission to determine who shall be stockholders. Thus as we read the applicable statutes, the authority of the Commission over an existing franchise is limited to an outright revocation or suspension. See Ark. Stat. Ann. § 84-2823.3(b) (Supp. 1971). It no where has authority to control who are or may become stockholders or to revoke a franchise on condition.

The record shows that Southland was conceived in 1955, by Charles Upton who became its president. When the track began to falter in 1956, Emprise Corporation controlled by the Jacobs family, came to its rescue by loaning the track $250,000. For a number of years Emprise owned 15% of the stock of Southland and the Upton family owned 17% of the stock. In 1967, Emprise purchased additional stock raising its ownership to between 45% and 46% of all outstanding stock. At the 1968 stockholders meeting Emprise Corporation elected a majority of the members of the Board of Directors but immediately thereafter an agreement was .reached with the Upton faction whereby Mr. Upton remained as president and business continued as usual. Due to a management dispute, Mr. Upton resigned as president in 1970 and the rumors of Emprises’ alleged “Mafia” connections again began to circulate.

Amid this background Commissioner Newcomb was quoted in “The Commercial Appeal” a Memphis, Tennessee newspaper as follows:

“LITTLE ROCK, March 2. — State Racing Commission Chairman Guy Newcomb said Monday he will recommend dissolving the corporation that runs Southland dog tract and creating a new home-owned corporation.
“Mr. Newcomb, of Osceola, said he would bring the idea to the Racing Commission at its next meeting.
‘This is my own personal idea,’ he said Monday. ‘But this would be one way we can solve the problems over there once and for all.’
“He said stock could be sold in Arkansas to buy the Jacobs interest in Southland in an effort to create a track owned and operated by Arkansas people.
‘It would still mean the state would get the same revenue,’ he said, ‘But this problem is going to be with us a long time and this is one way we could stop it.’ ”

The newspaper article was verified by the reporter, John Bennett and not disputed by Commissioner New-comb. Furthermore, in answer to' questions as to his disqualification Mr. Newcomb stated:

“No, I am not of the opinion really that it should be dissolved because — well, unless the evidence here today presents so. I don’t see that you can say that I still think, maybe I do in a sense, unless you all can work things out over there and get your internal mechanism working smoothly.”

The problems of bias and prejudice among members of administrative boards have been with the courts since the innovation of bureaucracy. In a number of cases bias and prejudice have been overlooked on “The Rule of Necessity.” See Administrative Law Treatise § 12.04 by Kenneth Culp Davis. The seeming injustice of having to present evidence before biased or prejudiced adjudicating officers or commissioners was recognized by the General Assembly in the adoption of the “Administrative Procedure Act,” which provides:

“. .. All presiding officers and all officers participating in decisions shall conduct themselves in an impartial manner and may at any time withdraw if they deem themselves disqualified. Any party may file an affidavit of personal bias or disqualification, which shall be ruled on by the agency and granted if timely, sufficient, and filed in good faith.” [(Ark. Stat. Ann. § 5-709(b) (Supp. 1971)].

The judicial review of decisions of agencies under the “Administrative Procedure Act” is limited to a determination of whether there is any substantial evidence to support the action of the board or commission, [Ark. Stat. Ann. § 5-713 (h)(5) (Supp. 1971)] — i.e. the courts do not evaluate the weight or preponderance of the evidence.

Notwithstanding the provisions of the Administrative Procedure Act, however, the qualification or disqualification of an officer or board member thereunder involves a number of difficult and delicate problems as can be seen from the following quote from § 12.01 of the Administrative Law Treatise by Davis; to-wit:

“The concept of ‘bias’ has a multiplicity of meanings which shade into each other but which must nevertheless be distinguished if problems of disqualification of de. dng officers are to be solved. One meaning of bias is a preconceived point of view about issues of law or policy. In this sense, most Americans have a bias for democratic methods, the pre-1937 Supreme Court was thought by many to have had a bias in favor of property interests, and the present Court may have a bias in favor of judicial self-restraint permitting government regulation of economic life. All men who have thought about controversial issues necessarily have biases in this sense. A judge may have a bias on a question of law because he decided the question in a previous judicial opinion; the judge who has the most bias in this sense may be the best judge. Closely related but distinguishable is bias or prejudgment concerning issues of fact about the parties in a particular case; all agree that too much bias in this sense is a ground for disqualification but the problems of what is too much are often difficult. A third kind of bias is often called ‘partiality’ or ‘personal bias’ or ‘personal prejudice’; these terms signify an attitude for or against a party as distinguished from issues of law or policy. When this kind of bias is strong enough, it is a ground for disqualification. A final'kind of bias is ‘interest.’ A judge who stands to gain or lose by a decision either way — because he owns stock in a corporation or is related to a party or is substantially affected in his personal desires — has an interest of the kind that is a ground for disqualification if it is of sufficient magnitude.”

A recent case discussing the disqualification of an officer under the Administrative Procedure Act can be found in American Cyanamid Company v. F. T. C., 363 F. 2d 757 (6th Cir. 1966), wherein former counsel of a Senate Subcommittee headed by Senator Estes Kefauver was held disqualified as a Federal Trade Commissioner to hear charges that pharmaceutical manufacturers had violated the Federal Trade Act through the sale and distribution of certain “wonder drugs”. In so holding the court stated and relied upon the basic rule set forth in In re Murchison, 349 U.S. 133, 75 S. Ct. 623, 99 L. Ed. 942 as follows:

“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. That interest cannot be defined with precision. Circumstances and relationships must be considered. This Court has said, however, that ‘every procedure which would offer a possible temptation to the average man as a judge * * * not to hold the balance nice, clear, and true between the State and the accused denies the latter due process of law. Turney v. State of Ohio, 273, U.S. 510, 532, 47 S. Ct. 437, 444, 71 L. Ed. 749.
Such a stringent rule may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ”

Commissioner Newcomb is not disqualified under the Administrative Procedure Act because he expressed the philosophy that dog racing should be home-owned nor because he appeared before a legislative committee in furtherance of that philosophy for it was not the intent and purpose of the Administrative Procedure Act to man agencies with political eunuchs. However when, under the historical background, Commissioner Newcomb’s philosophy of state ownership is coupled with his references to the “problems over there” and his reference to “your internal mechanism working smoothly” one can easily conclude that his appearance of fairness in the determination of the factual issues could be subject to some reasonable suspicion by those in charge of and acting on behalf of Emprise Corporation that he had already taken sides with the Upton family in the management dispute.

Since the underlying philosophy of the Administrative Procedure Act is that fact finding bodies should not only be fair but appear to be fair, it follows that an officer or board member is disqualified at anytime “there may be reasonable suspicion of unfairness.” It follows that Commissioner Newcomb was disqualified.

The Arkansas Racing Commission entered a second revocation order on July 24, 1972; that order is not now under review here, however appellees urge that this appeal is now moot on the grounds that the more recent order supersedes the order of July 15, 1971, and constitutes an election by the Commission to waive that prior order.

The effect of the order of the Pulaski Circuit Court, entered January 11, 1972, stayed the Commission’s original revocation order, enjoined its enforcement and effectively nullified it pending final disposition of this cause. Therefore, for all practical purposes, that original revocation order did not exist on July 24, 1972, and the Commission was possessed of continuing authority to regulate Southland and to issue racing dates. It was not deprived of authority to hold subsequent hearings and to enter the order of July 24, 1972. Accordingly, the revocation order of that date does not supersede the original revocation order, does not constitute an election by the Commission to waive the prior order and this appeal is not rendered moot.

Affirmed.

Special Justice Herman Hamilton, Jr., concurs in so far as the opinion holds Commissioner Newcomb was disqualified.

Fogleman, J., not participating.

Harris, C.J., and Holt, J., concur in the affirmance on the basis that the Commission exceeded its authority in the order entered.


text:
    AMERICAN FOUNDATION LIFE INSURANCE COMPANY and James E. WAMPLER v. Mary Willodean WAMPLER
    73-49
    497 S.W. 2d 656
    Opinion delivered July 16, 1973

      Spitzberg, Mitchell ir Hays and John D. Eldridge, for appellants.

      Bill R. Holloway, for appellee.
   Conley Byrd, Justice.

Appellee Mary Willodean Wampler brought this action against appellant American Foundation Life Insurance Company to recover as a beneficiary upon a life insurance policy on her son Jimmy Wayne Wampler. The Company defended upon the ground that James E. Wampler as the “premium payor” had changed the beneficiary to eliminate appellee as a beneficiary. The Company, having paid the proceeds of the policy to cross-appellant James E. Wampler, brought him into the controversy upon a third party complaint to recover any proceeds that may have been wrongfully paid to him under the terms of the policy. The trial court awarded judgment in favor of appellee and against the Company for one half the proceeds of the policy and awarded judgment in favor of the Company and against Mr. Wampler for one half of the proceeds paid to him. The Company has appealed and Mr. Wampler has cross-appealed.

To sustain the action of the trial court, Mrs. Wampler relies upon two propositions: — i.e. (1) Mr. Wampler did not have the right under the terms of the policy to change the beneficiaries, and (2) that the change of beneficiary having been made on a duplicate policy became ineffective when the original policy was found. We find both contentions to be without merit.

The record shows that in 1958, Mr. Wampler took out a policy of life insurance upon his minor son Jimmy Wayne Wampler with an agent of Mississippi Valley Life Insurance Company, a predecessor of appellant company. Mrs. Wampler testified that because of a snow storm the agent stayed at their house until 5:00 a.m. February 2, 1958. The application for the $10,000 policy with double indemnity upon the life of Jimmy Wayne Wampler and designating both Mr. and Mrs. Wampler as beneficiaries, shows Jimmy Wayne Wampler to be a minor, a student without a business address and without any other occupations. It also provided:

Notwithstanding the provisions of the application, Mrs. Wampler readily admits that Mr. Wampler took out the policy and made all of the premium payments with the first premium being paid from a joint account. Subsequent to the issuance of the policy Mr. and Mrs. Wampler had some domestic difficulties. On July 31, 1961, while Jimmy Wayne Wampler was still a minor, Mr. Wampler executed an “Affidavit of Loss of Policy”, and executed an application for a change of beneficiary. In accordance with Mr. Wampler’s request, the Company changed the designation of beneficiaries to remove Mrs. Wampler’s name. Mr. and Mrs. Wampler were divorced on August .10, 1962, and entered into a property settlement which in so far as here pertinent provided:

“Wife does hereby release all right, title, interest, equity, dower, homestead or other interests * * * to all the property of the husband, real, personal and mixed, except that specifically given to her on pages 1 to 4, hereof (certain cash, real estate, dryer stock and personal belonging, but not including insurance.) In that connection wife agrees to execute such further documents as may be necessary for the purpose of transferring or releasing her interest in all other property, including, without limiting the generality thereof, certificates of indebetedness, certificates of equity, farming machinery * * * life insurance policies or other assets.”

Jimmy Wayne Wampler after the divorce lived with and farmed with Mr. Wampler until his untimely death on November 7, 1970. The Company, pursuant to Mr. Wampler’s beneficiary change paid the policy proceeds to him before this action was commenced.

The policy with reference to a change of beneficiary provides:

“CONTROL. It is hereby understood and agreed that this contract is made with the premium payor, designated in the application for this policy, and that all transactions affecting this policy prior to the Insured’s attaining legal age shall be between the Company and said premium payor, or in case of the prior death of said premium payor, then between the Company and a parent or a legally appointed guardian of the Insured. It is also understood and agreed that after the Insured attains legal age the Company shall deal directly with the Insured as though this contract .had been with the Insured originally, unless otherwise provided herein.” [Emphasis ours]

Mrs. Wampler to sustain the action of the trial court points to the italicized portion “designated in the application for this policy” and to the provision of the application wherein, under the signature of Jimmy Wayne Wampler, it states: “I HEREBY DECLARE that I have paid to the agent...” the sum of $105.10. Upon these premises she argues that Jimmy Wayne Wampler was the “premium payor” under the terms of the policy. In making this contention she asserts that the provisions of the policy should be construed most strongly against the Company. We disagree on both contentions.

Provisions in life insurance contracts with reference to beneficiaries or changes in beneficiaries are in the nature of a last will and testament and are not matters in which the Company has a conflicting interest with the insured. Consequently courts do not, in construing such provisions, invoke the time honored doctrine applicable to coverage issues that ambiguities are to be construed most strongly against the Company and in favor of the insured. Instead such provisions are construed in accordance with the rules applicable to the construction of wills. See Equitable Trust Co. v. Epling, 168 S.C. 494, 167 S.E. 820 (1932), and Continental Ins. Co. v. Madonia, 205 La. 828, 18 So. 2d 310 (1944). Issues involving" the construction of the beneficiary provisions of life insurance policies most often occur in cases where the Company is only a stakeholder and the real parties in interest are the contesting beneficiaries. Of course, here, Mr. Wampler because of the judgment over against him is a real party in interest.

When we view the beneficiary control clause, supra, under the rules applicable to the construction of wills it at once appears that the “premium payor’’ was intended to be an adult because it specifically provides thát in case of the death of the premium payor during the minority of the insured transactions affecting the policy shall be “...between the Company and a parent or a legally appointed guardian of the insured.” Furthermore, the clause makes it plain that the Company did not intend to deal with a person prior to the attainment of legal age. Since the application indicated that the applicant was a minor without earnings, an ambiguity exists as to whom the “premium payor” would be under those circumstances. Upon the proof in the record here, the Company properly accepted Mr. Wampler as the “premium payor” for purposes of acting on a request for a change in beneficiaries.

To support her contention that the production of the original policy eliminated the change of beneficiaries effected after the issuance of the duplicate policy, Mrs. Wampler points to the following endorsement on the duplicate policy:

“This policy of insurance is issued as a duplicate to Original policy Number 2598-5802 issued on the 1st day of February, 1958, which is represented by the Owner to be lost or destroyed, it creates no liability upon the part of the Company other than that created by the original, and shall be null and void at any time that the original is found.”

Mrs. Wampler has cited no authority to support her position on this issue and we have found none. However, we do not construe the endorsement as making beneficiary changes, made in accordance with the terms of the original policy, null and void. As was pointed out in Tibbels v. Tibbels, 232 Ark. 857, 340 S.W. 2d 590 (1960), changes in beneficiaries under some circumstances can be accomplished without production of a policy.

Reversed and dismissed.

Brown, J., not participating.

      Murder charges have been filed as a result of his death. See Kagebein v. State, 254 Ark. 904, 496 S.W. 2d 435 (1973).


author: Frank Holt, Justice.

text:
    James W. GALLMAN v. Charles N. CARNES, et al, and ARKANSAS GAZETTE COMPANY, A Corporation
    73-28
    497 S.W. 2d 47
    Opinion delivered July 16, 1973

      Watson & Carter, for appellant.

      Rose, Barron, Nash, Williamson, Carroll ir Clay; Putman, Davis ir Bassett; and Cockrell, Laser, McGehee, Sharp ir Boswell, for appellees.
   Frank Holt, Justice.

This is an appeal from a summary judgment rendered against appellant who brought suit against the individual appellees and the appellee, Arkansas Gazette, for libel. In March, 1972, the Gazette came into possession of certain documents allegedly prepared or caused to be prepared by the six individual appellees who were tenured members of the faculty of the School of Law of the University of Arkansas at Fayetteville. Appellant was a member of the same faculty and, also, assistant dean. Soon after the Gazette received the documents, using them as a basis, it published a news article which allegedly fashioned a direct attack on appellant’s qualifications as a professor and scholar of law. The article, also, stressed “strong student dissatisfaction with his lack of teaching competence.”

Appellant brought this action in Pulaski County against the individual appellees, all residents of Washington County, seeking $100,000 in actual and $100,000 in punitive damages; and against the individual appellees and the Arkansas Gazette, a Pulaski County newspaper, jointly and severally, seeking actual damages of $1,000,000 and punitive damages in the amount of $1,000,000.

Appellant alleged that the individual appellees published or caused to be published to certain individuals a libelous, malicious and false written statement regarding his qualifications as a teacher and scholar; that said publication was false and defamatory and made maliciously and with knowledge of its falsity resulting in great injury to his professional reputation and activities. Appellant, also, alleged that the Arkansas Gazette published in its newspaper a false and defamatory statement which was made maliciously and with knowledge of its falsity and with reckless disregard for the truth; that the Gazette failed to investigate the truth of the facts published as to appellant; failed to make any reasonable inquiry and was grossly negligent in such failure to inquire into the truth of the facts so published concerning appellant; that a proper or reasonable inquiry would have disclosed the falsity of the publication; that the article was printed, published and distributed by the Gazette with such reckless disregard and carelessness regarding the truth or falsity as to indicate an utter disregard of appellant’s rights and the consequences, thereby maliciously, negligently and inexcusably causing appellant substantial and great injury and damage to him as an individual and his professional reputation and activities; that the individual appellees directly caused the publication in the Gazette and indirectly by their indiscriminate publication of their libelous, malicious and false written statement.

The individual appellees responded by a motion to quash service asserting they were not proper joint defendants and, therefore, the service upon them was invalid since proper venue of the asserted action would be in the county of their individual residences where the only service of process was had upon them.

The Gazette answered admitting it had come into possession of a copy of two reports authored by members of the University of Arkansas Law School Committee on Faculty Tenure and Promotion; that the two reports concerned a matter of public and general interest which is the School of Law at the University of Arkansas, a tax supported institution; that the reports made references to certain public officials which included appellant, a faculty member. The Gazette admitted publishing the news story but asserted that the story contained a fair and accurate abridgment of the contents of the Law School Committee reports which were directly quoted and that the publication was privileged. It, also, responded that it was not chargeable with actual malice and that an award for damages would violate its rights under the First and Fourteenth Amendments to the Constitution of the United States. Subsequently, the Gazette moved for a summary judgment. The motion was submitted upon the pleadings, affidavits and depositions of witnesses and the arguments of counsel. The trial court found, after viewing the evidence. most favorably to appellant, and with all doubts and inferences being resolved against the Gazette, that there was no genuine issue of material fact in the case. Accordingly, the motion was granted. Also, the individual appellees’ motion to quash service of summons upon them was then granted inasmuch as they are residents of Washington County and, therefore, Pulaski County is an improper venue for trial of the issues existing between the remaining parties.

For reversal, appellant contends that since a summary judgment is proper only where there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law and the court erred because such a fact issue existed. Of course, "it is familiar law that such a judgment is an extreme remedy, that the burden is upon the moving party to show that there is no genuine issue of fact, and that the evidence submitted upon the motion must be viewed most favorably to the party resisting motion.” Quillen, Admn’x v. Twin City Bank, 253 Ark. 169, 485 S.W. 2d 181 (1972). In the case at bar, however, we are of the view that the Gazette met its burden of showing the absence of a genuine issue of fact.

In New York Times v. Sullivan, 376 U.S. 254, 84 S. Co. 710, 11 L. Ed. 2d 686 (1964), the extent of freedom of expression concerning subjects of public interest, as guaranteed by our Federal First Amendment, was considered. The rule was established which “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Further, in St. Amant v. Thompson, 390 U. S. 727, 88 S. Ct. 1323, 20 L. Ed. 2d 262 (1968), the reckless aspect of actual malice was amplified.

“[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his_ publication. **** Failure to investigate does not in itself establish bad faith.”

And more recently, Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S. Ct. 1811, 29 L. Ed. 2d 296 (1971), extended the “constitutional protection to all discussion and communication involving matters of public or general concern, without regard to whether the persons involved are famous or anonymous.” Also, “a libel action **** relating to **** involvement in an event of public or general concern may be sustained only upon clear and convincing proof that the defamatory falsehood was published with knowledge that it was false or with reckless disregard of whether it was false or not.” In Sanders v. Harris, 192 S.E. 2d 754 (1972), the Virginia Supreme Court, citing Times and Rosenbloom, upheld a summary judgment in recognizing that a faculty dispute at a state college constituted a subject of public and general concern. The Missouri Supreme Court has held that a faculty dispute as to a professor’s qualifications was a proper subject “for public comment and as such was privileged.” Clark v. McBaine, 299 Mo. 77, 252 S.W. 428 (1923).

In the case at bar, we have no hesitancy in holding that appellant, as assistant dean and professor in our University Law School, is a “public official” under the New York Times, supra, standard and subsequent federal decisions. Furthermore, we must hold that communications relating to appellant’s qualifications as a scholar and professor of law involve “matters of public or general concern” to which the First Amendment constitutional protection of freedom of the press was extended in Rosenbloom v. Metromedia, supra. Thus, the ultimate question before us on this appeal is whether there is a genuine issue as to any material fact regarding actual malice (i.e. actual knowledge that the documents were false or a reckless disregard as to whether they were true or false) by the Gazette in publishing the allegedly defamatory news article. In our view, there was not.

Leroy Donald, Jr., state editor of the Gazette, came into possession of the documents that were used as a basis for the allegedly defamatory news article. In his deposition he admitted that he made no attempt to personally determine whether any of the documents were true or false. He was aware that the documents were “emotionally tinged” and that the persons involved “were at each other’s throats, tooth and toenail,” including accusations that certain individuals involved were untruthful. Further, that the Faculty Commission was referred to as a “lynch mob and pack of wolves out to castrate” appellant. Also, he was basically interested only in whether or not the documents were in existence rather than whether they were true or false. However, Donald merely assigned the story to a reporter. He didn’t investigate the situation or write the article published by his paper. Also, by affidavit, he swore he had no actual knowledge of any falsity of any portion of the documents.

Ginger Shiras, a reporter for the Gazette, received the assignment from Donald and wrote the article. According to her affidavit, she never had any knowledge of the falsity of any statement made in the news article concerning the appellant. It appears that she accurately quoted from the documents. According to her deposition, she was instructed by Donald to determine whether the comments in the documents were true or false. Even though she, also, was aware of the documents being “emotionally tinged” and contained accusations of “lying,” her investigation into the matter indicates to us there was no genuine issue as to any material fact with regard to her actual knowledge that the documents were false or a reckless disregard by her for the truth or falsity of the documents. It is appellant’s position that the affidavit of the Dean of the Law School reflects the documents were false and acrimonious. However, she talked to the Dean of the Law School on the day she wrote the news article. He had no comment to make about the documents. In her affidavit she'stated that he said the matter was under investigation which was welcomed. In her conversation with the President of the University, she was merely informed that he, himself, had been misquoted in the documents. She was unable to reach the Vice-President of the University. Although she attempted several times to contact the appellant and left her telephone number, she was unable to reach him. Also, she had conversations with two of the individual appellees, neither of whom denied the existence or the official nature of the documents.

“The test which we laid down in New York Times is not keyed to ordinary care; defeasance of the privilege is conditioned, not on mere negligence, but on reckless disregard for the truth.” Garrison v. Louisiana, 379 U.S. 64, 85 S. Ct. 209, 13 L. Ed. 2d 125 (1964). There must be a “showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S. Ct. 1975, 18 L. Ed. 2d 1094 (1967).

In applying these decisions to the case at bar we are of the view, as was the trial court, that the appellant did not present a genuine issue of a material fact according to the present standards required of him in a summary judgment proceeding. In other words it is not demonstrated that the news article was published by the Gazette with actual malice; i.e. with knowledge of falsity or with a reckless disregard of falsity. It appears to us and we hold in the case at bar that Miss Shiras met the required investigatory standards as prescribed by the controlling decisions interpreting the First Amendment as to freedom of press. As previously indicated, even a “[fjailure to investigate does not in itself establish bad faith.” St. Amant v. Thompson, supra.

Appellant collaterally argues that, because he was not supplied with the names of the persons who presented the documents to Donald, the summary judgment should be reversed. We cannot agree. No ruling was made by the trial court upon appellant’s motion. It was incumbent upon appellant “to call its motion to the court’s attention and obtain a ruling thereon. Failure to do so would constitute a waiver so that the motion could not be considered on appeal.” Flake v. Thompson, Inc., 249 Ark. 713, 460 S.W. 2d 789 (1970).

By affirming the trial court’s action in sustaining the Gazette’s motion for summary judgment it becomes necessary also to affirm the approval of the individual appellees’ motion to quash the service of summons upon them inasmuch as they are the only remaining defendants who neither resided in Pulaski County nor were summoned therein. Ark. Stat. Ann. § 27-615 (1962 Repl.); Universal C & T Credit Corp. v. Troutt, Ex’x, 235 Ark. 238, 357 S.W. 2d 507 (1962).

Affirmed.

Byrd, J., not participating.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. W. W. ROBINSON et al
    73-51
    497 S.W. 2d 28
    Opinion delivered July 16, 1973

      Young if Patton, for appellant.

      R. Gary Nutter and Garnet E. Norwood, for appellees.

      Pickett if Bishop, for Intervenor, Betty Louise Beck.
   Frank Holt, Justice.

This appeal concerns a declaratory judgment which essentially arose out of a vehicular collision involving a dump truck owned by appellee Robinson. A motorcycle driver was killed in the collision resulting in a wrongful death action against Robinson and his employee truck driver. Appellant was the insurer of certain vehicles owned by Robinson. Appellant denied coverage of the truck involved in the fatal collision. Because of the coverage dispute, appellant petitioned the court to declare the vehicle involved was not insured by appellant. The trial judge found that the truck was insured by virtue of an oral contract between appellant’s general agent and Robinson as contended by Robinson in his response and, also, by appellee intervenor Beck, administratrix of the estate of the deceased motorcycle driver.

Appellant first contends for reversal that the court erred in considering prior oral conversations between appellant’s agent and Robinson for the reason that the same were barred by the parol evidence rule. Appellee cites and relies upon New Hampshire Fire Ins. Co. v. Walker, 178 Ark. 319, 11 S.W. 2d 772 (1927), where we held that parol evidence is admissible to establish a contract of insurance. In the case at bar, suffice it to say that this contention is without merit inasmuch as the testimony concerning these conversations was introduced without objection and “this court has said many times, in effect, that such evidence cannot be challenged for the first time on appeal.” Bourque v. Edwards, 232 Ark. 665, 339 S.W. 2d 436 (1960). Therefore, we observe that the validity of an oral contract of insurance is not before us.

Neither can we agree with the appellant’s contention that there was insufficient evidence to uphold the trial judge’s decision. On appeal we apply the substantial evidence rule in testing the sufficiency of the evidence to support a finding. In so doing, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee. We do not disturb a finding of fact merely because the testimony is in conflict. “It must appear to us that ‘there is no reasonable probability that the incident occurred as found by the [jury] trial court sitting as a jury.’ ” Fields v. Sugar, 251 Ark. 1062, 476 S.W. 2d 814 (1972).

In the case at bar, certain testimony appears uncontradicted. Since 1969, appellant had other vehicles owned by Robinson insured under a fleet policy. Appellant’s general agent admittedly had authority to add to or delete vehicles from this policy if instructed by Robinson. Before the fatal collision in 1971, a minor claim was filed with appellant concerning the vehicle in question. Robinson was notified the claim was denied because the truck wasn’t included in the fleet schedule. Subsequendy, Robinson conversed with appellant’s agent regarding adjusting the fleet coverage. It was admitted by appellant’s agent that he had all the information.he needed to include coverage or the addition of the truck to the fleet policy other than Robinson’s permission. Appellant cancelled or refused to renew Robinson’s fleet policy a few months following the accident, listing the reason for cancellation as several "losses.” Specifically included in that category was the accident for which it now disclaims coverage.

Other testimony is conflicting. Robinson testified that he told the agent during their conversation he wanted the truck "added to my policy.” The agent replied he would “take care of it.” Robinson was under the impression that this truck was covered from that time forward including the date of the fatal accident. However, according to the general agent, Robinson absolutely made no mention of adding the truck to the existing fleet schedule or at no time told him "to insure it.” It appears the primary factual dispute is whether Robinson, in his conversation with appellant’s agent, requested that his truck be added to his fleet policy.

As previously indicated, any conflicting versions of the facts were matters for the factfinder to reconcile. Upon a review of the evidence in the light most favorable to the appellee, we find substantial evidence that all the essential elements necessary to constitute an oral contract of insurance existed. New Hampshire Fire Ins. Co. v. Walker, supra. Certainly in the case at bar, we cannot say “there is no reasonable probability that the incident [agreement] occurred.” Fields v. Sugar, supra.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Percy ALEXANDER v. STATE of Arkansas
    CR 73-66
    497 S.W. 2d 279
    Opinion delivered July 23, 1973

      John W. Parkerson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Percy Alexander, appellant herein, was charged with murder in the first degree, it being alleged that he murdered John Bradley by shooting him with a .22 caliber revolver. On trial, the jury found Alexander guilty and fixed his punishment at life imprisonment in the Arkansas Department of Correction. From the judgment entered in accordance with the verdict, appellant brings this appeal. It is first asserted that the trial court erred in its refusal to instruct the jury on the offense of manslaughter, and next asserted that the verdict is contrary to the law and the evidence.

Ark. Stat. Ann. § 41-2208 (Repl. 1964) defines voluntary manslaughter as a crime committed “upon a sudden heat of passion, caused by provocation, apparently sufficient to make the passion irresistible.” Though we find no evidence that would justify this instruction, the point can be disposed of without a full discussion of the facts. In the first place, the court did give the jury an instruction on second degree murder, but the jury found Alexander guilty of first degree murder. Since the jury viewed the killing as more than second degree murder, they certainly would not have found a still lesser degree of homicide, i.e., voluntary manslaughter. Any possible error for failure to charge the jury as to voluntary manslaughter, was thus rendered harmless by the fact that Alexander was found guilty of first degree murder. See Brown v. State, 219 Ark. 647, 243 S.W. 2d 938; Newsome v. State, 214 Ark. 48, 214 S.W. 2d 778, and cases cited therein.

In the next place, appellant did not offer an instruction on manslaughter, but only requested the court to give one. We have held numerous times that it is not the court’s duty to give instructions on the appellant’s theory of a case unless a correct instruction is presented to the court. See State v. Lamb and Taylor, 251 Ark. 999, 476 S.W. 2d 7 and cases cited therein.

We take the second allegation for reversal to mean that appellant views the evidence as insufficient to support the verdict. Again, we find no merit in the assertion. Difficulties between appellant and Bradley were occasioned by the fact that they were dating the same woman, Ruthie Bell Dawn. Testimony on the part of the State reflected that Miss Dawn was visiting Bradley at his home around 10:00 P.M. on May 11, 1972, a cousin of Bradley, Gregory Woodbury, also being present. Miss Dawn testified that while they were sitting on the front porch, appellant drove up in front of the house, stated, “Well, just sit there and I’ll be back”, and then drove off. She testified that she had ceased dating Alexander and had not had anything to do with him since February because he had beaten her and struck her across the head with a gun. The witness stated that subsequently, while still on the porch, she looked up the street and could see someone running down the street, then “duck in the hedges” and back out again, this person being Alexander. She said she then went upstairs to Woodbury’s room to use the phone, and Alexander came in stating, “You thought I was lying, didn’t you? I told you I was going to get you.” According to the witness, Bradley then walked in and remonstrated with Alexander, and the latter fired a pistol striking Bradley. She said that she observed the pistol in Alexander’s pocket when he walked into the room, the handle protruding. The two began to fight and shortly thereafter, Alexander pulled the bedroom door open, grabbed Miss Dawn, and knocked her unconscious.

Gregory Woodbury testified that he had gone to bed and was awakened by appellant talking to Ruthie Dawn in his bedroom. Though his version of the killing differs somewhat from that of Miss Dawn, he corroborated her evidence that Alexander was armed with a pistol when he came into the room, was the aggressor, and he stated that Bradley had no weapon.

Alexander testified that after, driving in front of the Bradley house and being invited to come in, he drove on down to the liquor store, bought a half-pint of whiskey, “drunk almost all of it and went back over there.” When he asked if he drank the whiskey to “get your nerve up”, Alexander replied, “I guess you could say that, yes.” and added, “to be ready for whatever happened. No, I didn’t go looking for trouble but I was ready for it.” He admitted that he parked his car quite some distance from the Bradley home, and when asked why he parked the car there instead of in front of the house, he responded, “I don’t know.” He also admitted prior difficulties between himself and Bradley over Miss Dawn and when asked if there was “bad blood” between the two of them, replied, “I guess you could say that. Yes.” Appellant testified that he had earlier gone by Miss Dawn’s house and not seeing her car there, decided to look for her at Bradley’s home.

Alexander denied that he took the pistol to Bradley’s home, or that he even owned a pistol; further testified that Bradley was the aggressor, first striking appellant; that he (Alexander) picked the pistol up off the floor during a scuffle with Bradley, the weapon discharging during the scuffle for possession of it. The conflicts in the testimony were matters for the jury to decide, and there was certainly substantial evidence offered by the State of sustain the verdict of first degree murder, if believed by the jury.

While appellant requested the court to give an instruction on self-defense, the point is not here argued, nor would such an argument be valid. From the record:

“COUNSEL FOR APPELLANT:
The defense would move the court to instruct the jury as to the possibility of finding in self-defense as an absolute defense in this charge.
THE COURT:
You’re asking for a jury instruction on self-defense?
COUNSEL FOR APPELLANT:
Yes, sir.
THE COURT:
Do you have one prepared?
COUNSEL FOR APPELLANT:
I do not.”

This is the complete record with reference to a request' for this instruction. As stated, the point is not argued, nor was any instruction offered.

Finding no reversible error, the judgment of the Garland County Circuit Court is affirmed.

It is so ordered.

      The witness said that Alexander first struck Bradley with the pistol, and subsequently shot him after they had fought over the weapon.