author: Robert H. Dudley, Justice. John I. Purtle, Justice,

text:
    Walter E. SIMPSON, Ex Parte
    83-260
    664 S.W.2d 872
    Supreme Court of Arkansas
    Opinion delivered February 27, 1984

      Friday, Eldredge ir Clark, by: William H. Sutton, for petitioner.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for respondent.
   Robert H. Dudley, Justice.

Walter E. Simpson, the Little Rock Police Chief, was criticized in a grand jury report. The report states that Simpson failed “before and after his arrival” to exert the leadership necessary to prevent members of the Pulaski County sheriff’s office from tampering with evidence at the scene of the murder of Alice McArthur. The special grand jury was empaneled and the report was received by the j udge of the Fourth Division of the Circuit Court of Pulaski County. Simpson moved that the personal criticism of him be expunged. The court denied the motion. By a writ of certiorari we order the circuit judge to expunge the matter from the report and from the record.

The overriding issue is whether a grand jury should be allowed to punish by j udicially approved public censure for non-criminal conduct which is, in the opinion of the jury, improper.

The Declaration of Rights of the present Constitution of Arkansas provides that a grand jury may proceed by presentment or indictment. In some jurisdictions, grand jury reports are referred to as presentments. See Dession & Cohen, The Inquisitorial Functions of Grand Juries, 41 Yale L.J. 687, 705 (1932). In Arkansas presentments have never been considered the same as reports. Here, a presentment served the same function as an indictment and was differently described only because the investigation had been initiated by the grand jury. State v. Cox, 8 Ark. 436 (1847); Ex Parte Faulkner, 221 Ark. 37, 251 S.W.2d 822 (1952). There is no constitutional provision authorizing grand jury reports. It is clear that the grand jury found no criminal conduct on the part of Simpson and did not intend to return either a presentment or an indictment. Likewise, there is no statutory authority for grand jury reports. However, in Ex Parte Faulkner, supra, we took notice of the fact that “in this State, it has long been the custom and practice for grand juries to make written reports to the court concerning their investigations.”

The majority of courts considering the issue have disallowed reports unaccompanied by presentment or indictment. See cases collected in Application of United Electrical Radio & M. Workers, 111 F. Supp. 858, 866 n.26 (S.D.N.Y. 1953).

The reasoning for the rule is sound. It is founded on the grand jury process and fundamental fairness. The inquisition is conducted in secret. Ark. Stat. Ann. § 43-927 (Repl. 1977). A juror commits a criminal offense if he discloses any of the evidence. Ark. Stat. Ann. §§ 43-928, 929. One being inquired about has no right to know that statements may be made against him. He has no right to confront his accusors. Ark. Stat. Ann. § 43-919. He has no right to cross-examine into the truth or falsity of the allegations. Ark. Stat. Ann. § 43-918. He has no right to testify and, at the same time, has no right to refuse to testify because the self-incrimination doctrine is inapplicable to non-criminal conduct. Consistent with the secret process, the public and the press have no right to read the grand jury minutes. The report is a state publication which carries the aura of approval by the judge who accepted it. The public and the press have no way to look behind it to determine its fairness or its accuracy. On the theory that judges have an absolute privilege against libel suits, and that the grand jury is an arm of the court, grand juries are probably immune from libel suits. See Restatement of Torts, § 589 (1938); Hayslip v. Wellford, 196 Tenn. 621, 263 S.W.2d 136, cert. denied, 346 U.S. 911 (1953).

With the secret inquisitorial process as the background, it obviously becomes manifestly unfair to allow a grand jury report to publicly censure a person for an offense unknown to the law. If allowed to stand, the censure would be accepted as a matter of fact with the censured person never having been afforded an opportunity to rebut the supposed fact. The censured person could not be indicted for the non-offense and would never be given the right to be found not guilty.

All of the factors discussed above have led this Court to state, in Ex Parte Faulkner, supra:

Grand juries are clothed with broad inquisitorial powers and the power to investigate should necessarily include the right and duty to report the result of such investigations. So long as grand jury reports relate to general conditions affecting the public welfare and without reflecting specifically upon the character, or censuring the conduct, of individual citizens they serve a wholesome purpose and are frequently followed by beneficial results to the community.

Many states have carved out an exception to the general rule of disallowing reports unaccompanied by indictments. That exception is for reports criticising public officials. This Court in Ex Parte Faulkner, supra, found it unnecessary to decide whether we recognized such an exception but, in an indication of intention, stated:

It would seem that the weight of authority supports the proposition that it is improper for a grand jury to present with words of censure and reprobation a public official or other person by name without presenting him for indictment and the accused has the right to apply to the court to have the objectionable matter expunged from the court records. 24 Am. Jur., Grand Jury, § 36; 38 C.J.S., Grand Juries, § 34(3). Ex parte Robinson, 231 Ala. 503, 165 So. 582; Bennett v. Kalamazoo Circuit Judge, 183 Mich. 200, 150 N.W. 141; In re Report of Grand Jury of Baltimore City, 152 Md. 616, 137 A. 370; In re Report of Grand Jury, 204 Wis. 409, 235 N.W. 789; In re Presentment to Superior Court, 14 N.J. Super. 542, 82 A.2d 496.

The trial judge, in his brief, urges us to adopt the exception. All of the reasons for the general rule also mitigate against the exception for public officials. In addition, there is a grave danger that grand jury reports, which are state judicial publications, may readily be used as instruments of unfair partisan politics. We refuse to adopt the exception.

Certiorari must be granted for yet another reason. Even those states which have adopted the exception will not allow a report which contains no facts but mere opinion. See In re Crosby, 126 Misc. 250, 213 N.Y.S. 86 (Sup. Ct. 1925). The reference to Simpson states that he failed to exert leadership over members of the sheriff’s office. The allegation does not contain a statement of fact. It is opinion only.

An overlapping of investigative authorities exists in Arkansas. The sheriff’s office had a duty to investigate the murder just as did the city police. Neither could lawfully exclude the other. Each could lawfully gather evidence. In such a situation, the extent to which leadership could properly be exerted by the leader of one group over the other group is solely a matter of opinion. In this area Simpson’s opinion may be as valid, or even more valid, than the jurors’ opinion. The report does not provide even the barest facts surrounding the supposed failure to exert leadership “before and after his arrival.”

A writ of certiorari is granted ordering the circuit judge to expunge the matter from the report and from the record.

Hickman and Purtle, JJ., dissent.

John I. Purtle, Justice,

dissenting. There is not the slightest hint in the grand jury report, the majority opinion, or this dissent that appellant committed any criminal act. That is not the issue presented on this appeal. The question before us is whether the report of a grand jury may be expunged because it is critical of a public official.

The grand jury is one of the few remaining parts of our criminal justice system were non-lawyer citizens participate. I fear the opinion in this case will further diminish the role of the lay citizens in the court system. It was the people who granted powers to the legislative, executive and judicial departments in the first place. Already some courts are using six member juries to try civil cases. Seldom is a grand jury even called, and now if its report is not complimentary to public officials, the report will be expunged at the request of the offended party. Those charged with criminal acts have long sought, usually without success, to be able just to read the minutes of grand juries. We have said they are not entitled to see the records of the grand jury. Arnold v. State, 179 Ark. 1066, 20 S.W.2d 189 (1929).

Since 1871, grand juries have been charged with the following oath [Ark. Stat. Ann. § 43-904 (Repl. 1977)]:

Saving yourselves and fellow jurors, you do swear that you will diligently inquire of, and present all treasons, felonies, misdemeanors and breaches of the penal laws over which you have jurisdiction, of which you have knowledge or may receive information.

Arkansas Stat. Ann. § 43-905 provides that grand juries keep minutes of their proceedings. The next statute (§ 43-906) authorizes them to report “the minutes of the proceedings and evidence so kept” to the prosecuting attorney. One of the chief statutes relating to the duties of the grand jury is Ark. Stat. Ann. § 43-907 which reads as follows:

The grand jury must inquire — First. Into the case of every person imprisoned in the county jail, or on bail, to answer a criminal charge in that court, and who is not indicted. Second. Into the condition and management of the public prisons of the county. Third. Into the wilful and corrupt misconduct in office of public officers of every description in the county.

Arkansas Stat. Ann. § 43-934 authorizes special grand juries and gives them the same powers a regular grand jury possesses. Circuit judges are authorized by law to appoint grand juries. Rowland v. State, 213 Ark. 780, 213 S.W.2d 370 (1948). Since the matter is discretionary with the circuit judge, we have no right to overrule unless there is an abuse of discretion. We have throughout the history of this court been tolerant of the actions of the judicial and other branches of government. It is right that we should be tolerant.

The majority rely heavily upon the case of Ex Parte Faulkner and Coleman, 221 Ark. 37, 251 S.W.2d 822 (1952). However, the opinion fails to quote from that part of the opinion which states:

In Ex parte Cook, 199 Ark. 1187, 137 S.W.2d 248, we held that it was within the trial court’s discretion to receive or reject a grand jury’s report criticizing the former county judge’s administration of county affairs where the investigation was at his request and the report did not amount to charges or accusations of criminal offenses.

The majority opinion correctly holds that as in Faulkner, supra, it has long been the custom and practice for grand juries to make written reports to the appointing courts. I agree and further state such practice should continue. The grand jury did not instigate this investigation as stated in the majority opinion. It appears the majority opinion holds that if a grand jury does not indict, it should make only complimentary reports. In Faulkner the court had before it the objectionable matter. In the present case we do not have either the report or all of that part of the report concerning the appellant. The majority is expunging parts of the grand jury report that none of us has seen. From the record it appears that the special grand jury was specifically charged with looking into the Alice McArthur murder. The small part of the report we have is squarely on that subject. In Faulkner the petitioners were accused of criminal acts and later indicted by the grand jury. The appellant had no right to cross examine any witness nór to face his accusers. Neither does anyone else being investigated by a grand jury. Why the offense at being treated as all others who are investigated by grand juries? The public and press have as much leeway in the present case as they have in any other case reported by any grand jury. This grand jury was mandated by the court and the laws of the state of Arkansas to look into this matter and all other matters investigated by them. The jury was also extremely critical of the Pulaski County Sheriff’s Department. Why should we not sua sponte expunge that section while we are reviewing the action of the grand jury? Also, why should we not expunge the record for those who are indicted but are never tried or are acquitted?

The Faulkner court relied on In re Jones, 101 App. Div. 55, 92 N.Y.S. 275, as precedent for expunging the report of a grand jury. In Jones the New York court refused to expunge a grand jury report which was critical of public officials for failure to properly perform their duties. There was neither indictment nor grounds for indictment in Jones. The question presented in Faulkner was stated by the court: “The question then arises as to the right of petitioners to expunge a grand jury report containing findings which would have warranted their indictment for slander where no such indictment is returned or intended.” Therefore, Faulkner does not stand for the proposition for which it is cited in the majority opinion. In the present case the jury did not accuse the appellant of any criminal act. Whether we follow the majority or minority rule is not the real question. What we need to follow is the right rule; the one which employs common sense. The Faulkner opinion did not reject the holding in Jones that expungment of critical grand jury reports is discretionary with the impaneling judge. It only held that a person has the right to have accusations expunged from a grand jury report which makes criminal accusations but fails to indict the person about whom the remarks are made. The Supreme Court of Arkansas has never held that a public official has a right to expunge a grand j ury report which is critical but which does not allege criminal conduct. This court has held in Ex Parte Cook, 199 Ark. 1187, 137 S.W.2d 248 (1940) and Faulkner that a report of a grand jury incidentally pointing out that certain public officials are responsible for acts or omissions or neglect of duty, not amounting to criminal acts, is not subject to being expunged. The most that can be said is that such matters are left to the discretion of the impaneling judge. We have even held that an indictment cannot be quashed or set aside because of illegal testimony or want of any testimony at all. State v. Fox, 122 Ark. 197, 182 S.W. 906 (1916).

Grand juries are made up of reputable citizens residing in the county. Thus they become the voice and conscience of the county. It is not their privilege only, but also their duty, to speak out on matters of public concern and interest. We should not quiet their voice or still their conscience.

Hickman, J., joins in this dissent.


source: Caselaw Access Project

author: Steele Hays, Justice.

license: Public Domain

text:
    Bryant WHITT v. STATE of Arkansas
    CR 83-111
    664 S.W.2d 876
    Supreme Court of Arkansas
    Opinion delivered February 27, 1984

      Steve DeMott and Steve Beck, for appellant.

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

On November 5,1982, the Southwest Federal Savings and Loan Association of Gurdon was robbed of $886. An employee, Mrs. Wanda Clark, was taken as a hostage and left on the edge of Gurdon locked in the trunk of her car. Appellant was charged and convicted of aggravated robbery and kidnapping. As an habitual criminal, he received a sentence of sixty years on the robbery charge and life on the kidnapping charge, the sentences to run consecutively. Four points are argued on appeal, but we find no error.

Appellant claims his in — court identification was tainted by suggestive photographic and formal lineup procedures. He contends 1) the photo lineup was improper because Mrs. Clark was first shown only one photograph, that of appellant, whom she could not positively identify, but was then predisposed to choose the appellant several days later from a six-photo lineup and later still in a formal physical lineup; and 2) the victim’s initial description to the police differed from appellant’s actual description.

We addressed the admissibility of in-court identification recently in Hogan v. State, 280 Ark. 287, 657 S.W.2d 534 (1983) and repeated the standard, i.e. that reliability of the evidence is the key in determining the admissibility of such in-court identification and we will not reverse unless from a totality of the circumstances clear error has occurred. Several factors are significant in weighing reliability: prior opportunity of the victim to observe the crime and its perpetrator; lapse of time between the crime and the lineup proceedings; discrepancies between descriptions given the police and the actual description of the suspect; certainty of the witness in identification of the accused; facts and circumstances regarding the identification and all matters relating to the identification. The arguments the appellant raises do not amount to suggestive procedures when all of the factors are known and we find neither the first single photo identification nor the victim’s initial doubt enough to taint the in-court testimony.

Mrs. Clark observed the appellant in the bank for some five minutes and then for ten to fifteen minutes in broad daylight while she was with him in the car. After she was released she was questioned by the police and at 10:30 p.m. she took a tranquilizer and went to bed. She was awakened by the police at 1:00 a.m. and shown a picture of the appellant taken about three years earlier. She declined to attempt identification at that early hour, but thirteen days later she had no trouble picking appellant out of a six-photo lineup, when shown a photograph taken only two weeks before the robbery.

We dismiss as inconsequential any significance in the uncertainty of the early morning identification, considering the circumstances. Martinez v. State, 269 Ark. 231, 601 S.W.2d 576 (1980). Mrs. Clark thought she observed differences in the two photographs and we cannot say, in comparing them, that her perception was faulty. They were taken three years apart, and it was the later photograph that she readily identified in the six-photo lineup. We are not persuaded that seeing the original first, viewed under stressful circumstances, clearly influenced her identification. The trial court may have given greater weight to the fact that she had spent fifteen to twenty minutes observing the appellant and had positively identified him from a recent photograph and a formal, physical lineup. She later testified that her identification in the physical lineup was based on her memory of the robbery. Mrs. Clark testified that appellant had been in the bank on November 3, to change a twenty dollar bill and this testimony was corroborated by other proof.

Appellant’s contention that there are discrepancies in Mrs. Clark’s initial description of the robber is without substance. She said he was fifty to fifty-five years old, whereas appellant is forty-three, and that he had salt and pepper hair, whereas appellant’s hair is brown. But we do not regard those as material differences, particularly after reviewing the photos. During the time Mrs. Clark observed him, his head was covered by a cap pulled down to his ears and there was testimony that he had been gray at the temples. Reviewing the reliability of the evidence under the totality of the circumstances we find no error in the admission of the in-court identification.

Appellant .also contends the trial court should have granted his motion to reduce the penalty ranges of the kidnapping offense from a class Y felony to a class B felony under Ark. Stat. Ann. § 41-1702 (2), which reads:

Kidnapping is a class Y felony, except that if the defendant shows by a preponderance of the evidence that he or an accomplice voluntarily released the person restrained alive and in a safe place prior to trial, it is a class B felony.

The argument lacks merit. Mrs. Clark was not released. Nor was she left in what might be reasonably characterized as a “safe place.” She was locked in the trunk of her car, which does not bring the case within the wording of the statute. The trial court did not err in refusing the motion on these undisputed facts. On the same reasoning, we reject appellant’s argument that the jury should have been instructed under AMCI 1702-P, because there was no evidence to support appellant’s theory that Mrs. Clark was released alive and in a safe place. See Davis v. State, 246 Ark. 838, 440 S.W.2d 244 (1969).

Appellant’s final point for reversal questions the sufficiency of the evidence. The defense offered proof that he was elsewhere when these crimes were committed, but the state presented the testimony of Mrs. Clark, who witnessed the crime and identified the appellant as the man who robbed and kidnapped her, and that constituted substantial evidence. See Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Finding no error, we affirm the judgment.


author: Richard B. Adkisson, Chief Justice. Darrel Hickman, Justice,

text:
    Charity May SIMPSON v. Dr. Cullen Dale FULLER, MEMORIAL HOSPITAL of North Little Rock, Arkansas, and ST. PAUL FIRE AND MARINE INSURANCE COMPANY
    CR 83-275
    665 S.W.2d 269
    Supreme Court of Arkansas
    Opinion delivered March 5, 1984

      Orvin W. Foster, for appellant.

      Friday, Eldredge & Clark, by: John Dewey Watson, for appellee.
   Richard B. Adkisson, Chief Justice.

This is a medical malpractice action brought by appellant, Charity May Simpson, against appellee, Dr. Cullen Dale Fuller, Memorial Hospital of North Little Rock, and St. Paul Fire and Marine Insurance Company. The trial court dismissed the suit with prejudice because of appellant’s failure to notify appellee sixty days before filing suit pursuant to Act 709 of 1979 (codified at Ark. Stat. Ann. § 34-2617 [Supp. 1981]). Appellant admits her failure to comply with the sixty day notice of intent to sue, but she contends the notice requirement is constitutionally invalid. On appeal we affirm.

Appellant argues that this Court should apply a “strict scrutiny” test to determine the constitutionality of Ark. Stat. Ann. § 34-2617. As rationale for the application of a “strict scrutiny” test, appellant contends (1) that the right to pursue remedies in a court of law for injuries sustained to person or property should be deemed a “fundamental right” as established by the Constitution of Arkansas in Article 2, Section 13; (2) that Ark. Stat. Ann. § 34-2617 is in derogation of common law; and (3) that the statute confers upon tortfeasors who provide medical care a special privilege, or immunity, in violation of the Fourteenth Amendment to the Constitution of the United States and in violation of Article 2, Section 3 of the Constitution of Arkansas.

In Gay v.Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983) we rejected appellant’s argument that Act 709 be strictly construed. There we held that: “The statute in question [Act 709 of 1979] bears a fair and substantial relation to the object of the legislation, which is to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of insurance.”

A presumption exists that every act is constitutional. Before it will be held unconstitutional, the incompatibility between it and the constitution must be clear, and any doubts as to the validity must be resolved in favor of its constitutionality. Gay v. Rabon, supra; S. Cen. Dist. Pentecostal Ch. v. Bruce-Rogers, 269 Ark. 130, 599 S.W.2d 702 (1980).

We considered this identical notice issue in the case of Gay v. Rabon, supra, and applied a “rational basis” test, concluding that a legitimate state purpose was being served by the notice requirement of Act 709 of 1979. We see no reason to change that holding.

Affirmed.

Hickman, Purtle, and Hollingsworth, JJ., dissent.

Darrel Hickman, Justice,

dissenting. This is the second case which we have reviewed of a lawyer being caught in a legal trap set by the legislature. The case should not be dismissed, because the legislation in question is in derogation of common law and, therefore, must be strictly construed against the one claiming its benefits. The provision in question is arbitrary, nothing but a special legal trap, and a procedural rule that conflicts with this court’s authority to decide procedural matters. I will concede that if it was the intention of the legislature to reduce malpractice claims, it has succeeded to some degree. These are two claims that I know of that have been “resolved.”

I am authorized to state that Purtle and Hollingsworth, JJ., join in this dissent.


author: George Rose Smith, Justice.

text:
    Carolyn Ann RUSSELL v. James Edgar RUSSELL
    83-277
    665 S.W.2d 271
    Supreme Court of Arkansas
    Opinion delivered March 5, 1984

      Howell, Price & Trice, for appellant.

      Lightle, Beebe, Raney ér Bell, by: A. Watson Bell, for appellee.
   George Rose Smith, Justice.

In this case the chancellor granted the husband a divorce, divided the marital property and permitted the wife to occupy the family home until the couple’s 16-year-old son reached 18. The chancellor awarded the wife alimony until then, at which time the home was to be sold, the proceeds divided, and the alimony discontinued. At the original trial Mrs. Russell contended that she was completely unemployable, but the chancellor rejected that contention and stated that the period of alimony before the sale of the house “should be ample time for her to rehabilitate herself in order to secure employment.” On the first appeal we affirmed the decree except for an increase in the amount of alimony and said: “In the event Mrs. Russell’s physical and financial circumstances at the time of the sale of the home are different from what the Chancellor anticipated in his Memorandum Opinion, our law is sufficiently flexible to permit the Chancellor to modify the alimony awardat that time.” Russell v. Russell, 275 Ark. 193, 628 S.W.2d 315 (1982).

When the son reached 18 it was not necessary to sell the house, as Mrs. Russell had purchased her former husband’s half interest. After a hearing upon Mrs. Russell’s request that her alimony be continued indefinitely, the chancellor reviewed the facts in detail in a memorandum opinion, stated that Mrs. Russell’s financial circumstances were about as he had expected, noted that she had made no effort to rehabilitate herself, adhered to his earlier view that she is employable, and found no material change in her physical condition since the decree. This appeal from the chancellor’s denial of further alimony comes to this court under Rule 29 (1) (j), as a second appeal.

The only argument for reversal is that the chancellor should have modified the decree by continuing the allowance of alimony. Since the trial court’s findings were explained in detail and the facts in a case of this kind are of negligible precedential importance, we need not discuss the proof at length. Mrs. Russell had the burden of proof. She was her own chief witness. She testified that her main complaint, pain in her neck and upper back, had worsened since the trial in 1980. Her family physician, although still of the opinion that she is unemployable, testified that the condition of her neck is about the same as it was. On the other hand, the two physicians testifying for Russell had both had experience in evaluating patients for social security disability benefits. They were of the opinion Mrs. Russell can be gainfully employed. Dr. Barnett mentioned possible jobs. The chancellor noted in his opinion that Dr. Barnett had said that during the course of his examination Mrs. Russell had said she could not look to her left with full range of motion, but she actually did so many times when he was not performing the examination itself. To reverse the chancellor’s decision we would have to weigh the conflicting testimony of the doctors without having heard them testify and disregard the detailed findings of the chancellor. In these circumstances we cannot say that the trial judge’s decision is clearly erroneous.

Affirmed.

Hickman, J., not participating.


author: Darrel Hickman, Justice.

text:
    Eddie W. BANKSTON et ux v. THE PULASKI COUNTY SCHOOL DISTRICT
    83-243
    665 S.W.2d 859
    Supreme Court of Arkansas
    Opinion delivered March 5, 1984

      Patter & Brown, for appellant.

      Henry J. Osterloh, for appellee.
   Darrel Hickman, Justice.

The appellants bought a house from Charlene McKenzie in 1980 which they had been leasing from her with an option to purchase. The house was built by Pulaski County School District students as a vocational project. The building contract was entered into by Charlene McKenzie and the district in 1977. The house was completed in 1979. A fire damaged the house in 1980. The Bankstons sued Charlene McKenzie, the school district, and the school district’s insurance company for fire damage and for defects in the sewer system. Pulaski County School District moved to dismiss because of its statutory immunity from tort liability, and the court granted the motion. See Ark. Stat. Ann. § 12-2901 (Repl. 1979). On appeal the Bankstons argue their cause of action was for breach of contract as well as for negligence, and the court was wrong in dismissing the district as a party. The insurance carrier for Pulaski County remained a party. See Ark. Stat. Ann. § 66-3240 (Repl. 1980).

We must decide if the complaint was essentially one for breach of contract or for tort or both. We find that it was based mainly in tort, and the trial court was essentially correct in that respect. However, we do find that the complaint did state a cause of action against Pulaski County School District for breach of implied warranty regarding the defects in the sewer system. Therefore, we find the court was in error in dismissing the Pulaski County School District entirely from the suit and remand the matter for further proceedings.

While the complaint mentioned that there was a contract between Pulaski County and Charlene McKenzie to build the house, it alleged the district “failed to perform the services of constructing the residential building in accordance with the contract by their negligent and callous disregard of building practices, building codes, electrical codes, sanitary codes, and standard practices. . . .” (Italics supplied.) Thereafter, it recited specific failures to conform to codes and rules on sewer systems and electrical systems. The complaint goes on to say the house was a “product” and the appellants ask for . . . “recovery under the grounds of strict liability, as well as negligent performance of the contract and breach of warranty by virtue of the negligent construction of the sewage system and electrical system.” (Italics supplied.)

The complaint prayed for $159,890 damages to personal and real property; $6,900 for interest; $20,000 for payment of Bankston’s services in supervising reconstruction, and $150,000 punitive damages, costs and attorney’s fees. The Bankstons paid $83,000 for the house. The concluding paragraph reads:

That the written contract, express and implied warranties of fitness and habitability and merchantability, extend from the defendant, the Pulaski County Special School District, to and through Charlene Worden McKenzie, who likewise warranted, to the Plaintiffs. The negligent installation and the negligent correction of the faulty installation causes defendants to be jointly and severally liable therefor.

The complaint was obviously meant to be a tort action. Almost all the allegations are that Pulaski County School District or its agents were negligent or are assertions of various theories of recovery that sound in tort rather than contract.

The theories mentioned are “negligent performance of contract, breach of express and implied warranties, negligence and strict liability.” There is no question that negligence and strict liability sound in tort. See W. Prosser, Law of Torts § 28 (4th Ed. 1971); Restatement (Second) of Torts § 402 (A). Breach of warranty has been termed a hybrid of tort and contract. Prosser, supra § 95.

On two occasions we have held breach of warranty actions to be tortious in nature. Pennsalt Chemical Corp. v. Crown Cork & Seal Co., Inc., 244 Ark. 638, 426 S.W.2d 417 (1968); Evans Laboratories v. Roberts, 243 Ark. 987, 423 S.W.2d 271 (1968). When the legislature enacted our comparative fault statute, it included breach of warranty in its definition of “fault.” Ark. Stat. Ann. § 27-1763 (Repl. 1979). There are a few occasions where failure to perform a contract is a tort. Those instances arise where the law recognizes an affirmative duty to act with care. One of these is where contractors misperform contracts. Prosser, supra § 92. That is essentially what the appellants allege. While nonfeasance of a contract usually sounds in contract, misfeasance is ordinarily a tort action. McClellan v. Brown, 276 Ark. 28, 632 S.W.2d 406 (1982).

Damages prayed for are a factor to consider in determining whether an action is in tort or contract. Punitive damages are ordinarily sought in tort actions, not contract. See McClellan v. Brown, supra. The difference between an action in contract and one in tort is not always exact, but we stated the basic distinction in Atkins Pickle Co. v. Burrough-Uerling — Brasuell, 275 Ark. 135, 628 S.W.2d 9 (1982); “The purpose of the law of contract is to see that promises are performed; the law of torts provides redress for various injuries.” Owing to that distinction, the measure of damages in contract cases differs from that in tort cases. In tort cases the purpose of the law is to compensate the plaintiff for the injury inflicted even though it may have been unexpected, as in the aggravation of a pre-existing physical condition. AMI Civil 2d, 2203 (1974). But in contract cases the special damages must have been in contemplation of the parties when the agreement was made. We stated our rule in Hawkins v. Delta Spindle of Bly theville, 245 Ark. 830, 836, 434 S.W.2d 825 (1968);

It requires not only that there must be knowledge on the part of the one to be charged at the time of the contract of the special circumstances out of which the damages arise, but also that the facts and circumstances be such as to make it reasonable to believe that he tacitly consented to be bound to more than ordinary damages in case of default on his part.

If, for example, a householder buys an electric switch to replace one in his home, and the new switch is defective and causes a fire, the merchant who sold it is not liable for the damage even though he knew what the switch was to be used for.

Here, the buyers were shopping for a bargain when they employed the school district to build their house. The contract required the appellants to pay only the actual cost of the materials plus a fee of $500, with no charge for the students’ labor. The school district did not tacitly consent to take the risk of the fire that occurred, because homeowners customarily carry fire insurance to protect themselves against such a casualty. Consequently, the asserted cause of action for the fire loss is one in tort for negligence, not in contract for a breach of the agreement.

However, the complaint states a cause of action in contract for the district’s alleged installation of a defective septic tank. The complaint does allege that the defect permitted sewage to leach into a third person’s pond, but the prayer for damages is for the cost of correcting the defect. Thus the complaint states a proper cause of action for breach of contract, to which the school district must respond. The plaintiffs would not be barred from suing the school district simply because they did not have a contract with the school district, because a builder-vendor’s implied warranty for fitness for habitation runs not only to the first owner but extends to. subsequent purchasers for a reasonable length of time where there is no substantial change or alterations in the conditions of the building from the original sale. See Blagg v. Fred Hunt Co., 272 Ark. 185, 612 S.W.2d 321 (1981).

Affirmed in part and reversed in part.


author: John I. Purtle, Justice. Darrell Hickman, Justice,

text:
    Virginia FALLS v. Harold UTLEY
    83-265
    665 S.W.2d 862
    Supreme Court of Arkansas
    Opinion delivered March 5, 1984
    [Rehearing denied April 9, 1984.]

      Bullock, Hardin & McCormick, for appellant.

      John Harris, for appellee.
   John I. Purtle, Justice.

The chancery court of Pope County, Arkansas, ordered reformation of a deed in fee simple absolute to reflect a reservation of mineral rights in the grantor (appellee). The argument for reversal is that the court erred in finding clear and convincing evidence upon which to base the reformation of the deed. We think the trial court was not clearly erroneous and we affirm the decree.

Appellee sold a certain Mr. and Mrs. Alexander three acres of land on May 20, 1975. A deed was passed to the Alexanders which granted surface rights only. The Alexanders then executed a note and mortgage in favor of appellee. They were unable to pay the note and mortgage as payments were due. Appellant, a relative of Mrs. Alexander, indicated an interest in purchasing the property. When appellant and appellee agreed to the sale, they caused the Alexanders to re-deed the property to appellee who then executed a deed in favor of appellant. The deed from the Alexanders to appellee was prepared by a real estate agent and made no mention of minerals. This deed was taken to a lawyer’s office where the deed from appellee to appellant was prepared. The deed prepared by the lawyer did not contain a reservation of mineral rights. The consideration paid by appellant was the balance owed by the Alexanders on their note and mortgage.

The facts other than the foregoing are in considerable dispute. According to appellee, Alexander sought permission for a relative to purchase the land. He states that Alexander wanted out of the note and mortgage because of family problems with appellant. Appellant and appellee went to the lawyer’s office together for the purpose of having the deed prepared. According to appellee, appellant agreed, while waiting in the lawyer’s office, that she was not getting the minerals. Appellee claims he discovered the mistake two years later and immediately asked that the deed be corrected. According to him, appellant admitted she did not purchase the minerals but after finding they had been included in her deed she declared herself the legal owner and refused to correct the deed.

Alexander testified that he purchased the property in ques tion on May 20,1975, and that he purchased the surface only. He discussed his default on the land with family members. He never advised appellant that he owned the minerals.

Appellant testified that she requested that she be allowed to make payment in Alexander’s name but Alexander refused to agree and stated he did not want any more dealing with the family. She was aware of Alexander’s default and she desired to take over the property. According to her, the mineral rights were not discussed with appellee. Appellant stated that oil companies started calling her about leasing the property in 1981. She testified, “I told them I could not lease it. It had to be checked out because after we bought it, Harold Utley had informed us he withheld the mineral rights.”

The trial court found by clear and convincing evidence that reformation should be allowed to show conveyance for surface rights only. We view the trial court’s finding and affirm unless it is clearly against the preponderance of the evidence. The trial court had before it the deed from appellee to the Alexanders which reserved the mineral rights. Appellant was a member of Alexander’s family and desired to purchase the property. She knew there was a second mortgage on the property which was recorded at the courthouse. The deed from appellee to the Alexanders was recorded in the same courthouse. Appellant had at least constructive knowledge that the Alexanders did not acquire the mineral rights to this property. Also, she paid the amount still owed by Alexander to appellee. The evidence indicates that appellant intended to purchase her relatives’ interest in the property. Both the recorded deed to the Alexanders and the mortgage from them to appellee expressly conveyed surface rights only. The chancellor observes the witnesses and is in a much better position than this court to determine the reliability of the winesses. With all the other evidence pointing to a reservation of the mineral rights in the grantor, we are of the opinion the chancellor was not clearly erroneous in finding a mutual mistake. A court of equity has the power to correct mistakes in deeds and conform them to the intentions of the parties. Parole evidence may be used but the proof must be clear, decisive, and unequivocal. The proof need not, however, be undisputed. Beneaux v. Sparks, 144 Ark. 23, 221 S.W. 465 (1920). Courts may reform deeds where there has been a mutual mistake, or where the mistake is unilateral and accompanied by inequitable conduct by the other party. Turney v. Roberts, 255 Ark. 503, 501 S.W.2d 601 (1973).

Affirmed.

Adkisson, C.J., and Hickman, J., dissent.

Darrell Hickman, Justice,

dissenting. I dissent because I do not feel there was clear and convincing evidence requiring reform of the deed. Essentially, this was an arm’s length transaction and the appellee gave the appellant a deed to the land, in fee simple, without reserving the mineral rights. Over two years later, the appellee learned that he did not regain the mineral rights, as he claimed he intended to, and filed this lawsuit to reform the deed, alleging a mutual mistake. The only real evidence the court had below was testimony of the appellee and the appellant as to what was said and agreed to between them. The testimony was directly in dispute. Harold Utley said he told Virginia Falls in his lawyer’s office that he was going to retain the mineral rights. The lawyer that prepared the deed did not testify. Either the lawyer did not hear it, did not remember it, was guilty of malpractice, or it was not said. In any event, all we have is the statement of the two parties. In view of a lack of definitive evidence, which I could characterize as clear and convincing, I have to conclude the chancellor was in error in finding a mutual mistake: it was more a unilateral one. Therefore, I would reverse the decree.

I am authorized to state that Adkisson, C.J., joins in this dissent.


author: John I. Purtle, Justice.

text:
    Dexter Owen HEARD and Dustin Perry HEARD, by their Parents and Next Friends, Stanley and Penney HEARD v. Charles PAYNE, Superintendent of Lake Hamilton School District
    83-279
    665 S.W.2d 865
    Supreme Court of Arkansas
    Opinion delivered March 5, 1984
    [Rehearing denied April 9, 1984.]

      James R. Marschewski, for appellants.

      John B. Robbins, for appellee.
   John I. Purtle, Justice.

The trial court dismissed appellants’ petition for mandamus at the close of appellants’ presentation of evidence in a trial before the court. The appellants here argue that the court erred in directing a verdict in favor of the appellee. They contend that Act 244 of the Acts of the General Assembly of 1967 contained a typographical error, that a chiropractor is a licensed physician in this case, and that the word “may” in Act 244 means “shall.” We hold that a chiropractor is not a licensed physician in this case and affirm the trial court.

Dexter Owen Heard and Dustin Perry Heard are the twin sons of Stanley and Penney Heard. The twins were suspended from the Lake Hamilton School District until such time as the children were in compliance with the state immunization law. The parents had failed to have the children immunized in compliance with Acts of the General Assembly of Arkansas 1967 Act 244, requiring immunization of all children before they are allowed to attend school. The Heards attempted to comply with an exemption clause allowing the children to attend school without being immunized.

In September, 1983, the parents were notified by school officials that their children could not continue in the school without complying with Act 244. The Heards had obtained a certificate from a chiropractor stating that the children showed no evidence of infectious or contagious disease and that due to a history of allergic reactions, they should have no further inoculation or immunization. The school rejected the chiropractic certificate because officials did not think it met the requirements of Act 244.

On October 19,1983, the children were suspended from school. On October 27, 1983, the parents filed a petition for mandamus seeking to require the superintendent of schools, Charles Payne, to accept the certificate of Dr. John E. Nelson, the chiropractor, in lieu of immunization. The matter was heard in the circuit court on November 4, 1983. The defendant’s motion for directed verdict was granted at the close of plaintiffs’ case.

Acts of the General Assembly of 1967, Act 244, Section 1 (Ark. Stat. Ann. § 80-1548 [Repl. 1980]) states in part:

No child shall be admitted to a public or private school of this State who has not been immunized from . . . (Diseases named here).

Section 2 of Act 244 (Ark. Stat. Ann § 80-1549) states in part:

If, in the discretion of the health authority having jurisdiction, of any physician licensed to practice by the three (3) medical examining boards enumerated in Section 1 of Act 148 of 1935 [Ark. Stats. (1947) Section 72-201], any person to whom this Act applies shall be deemed to have physical disability which may contraindicate vaccination, a certificate to that effect, issued by the said health officer, may be accepted in lieu of a certificate of vaccination . . .

The third statute necessary in considering the construction of the statute under consideration is Section 1 of Act 148 of 1935 (Ark. Stat. Ann. § 72-201 [Repl. 1979]). It reads in pertinent part as follows:

It is hereby made the duty of each of the medical examining boards, to-wit: The Homeopathic State Medical Board, the Eclectic State Medical Board, the State Medical Board of the Arkansas Medical Society, the State Board of Osteopathic Examiners, and the State Board of Chiropractic Examiners . . .

In construing a statute it is the court’s duty to construe it just as it reads. City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W.2d 154 (1977) and Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W.2d 881 (1965). In the absence of an indication of a different legislative intent, the courts give words their ordinary and usually accepted meaning in common language. City of North Little Rock v. Montgomery, supra, and Phillips Petroleum v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973). The primary rule in construction of statutes is to give effect to the intention of the legislature. Shinn v. Heath, Director, 259 Ark. 577, 535 S.W.2d 57 (1976) and Duty v. City of Rogers & Benton County, 255 Ark. 309, 500 S.W.2d 347 (1973).

A logical and common-sense reading of Section 2 of Act 244, which states, “any physician licensed to practice by the three (3) medical examining boards enumerated in Section 1 of Act 148 of 1955,” leads us to hold that this .clause requires an exemption certificate to be issued by the health authority or a licensed physician. Although Act 148 of 1935 may have been repealed prior to the enactment of Act 244, Act 148 was still in print and it was obviously used for reference and understanding only. Act 148 listed five boards: Homeopathic State Medical Board; Eclectic State Medical Board; State Medical Board of the Arkansas Medical Society; State Board of Osteopathic Examiners; and State Board of Chiropractic Examiners. Giving the words their normal meaning and construing the enactment (Act 244) just as it reads, we conclude that the first three boards mentioned are medical boards and the last two mentioned are not.

In 1955, the General Assembly passed Act 65, which created the Arkansas State Medical Board. Act 65, codified at Ark. Stat. Ann. § 72-602, reads in pertinent part as follows:

In the place of the three (3) medical examining boards (Homeopathic State Medical Board, Eclectic State Medical Board and The State Medical Board of the Arkansas Medical Society) heretofore existing. . . there is hereby created the Arkansas State Medical Board. . .

It is obvious that the legislature was referring to the same “three (3) medical examining boards” in both Act 65 and Act 244. It is equally obvious that the State Board of Chiropractic Examiners is referred to in neither.

Additionally, the State Board of Health has promulgated rules and regulations which permit only the Director of the Arkansas Department of Health to issue certificates exempting children from complying with the immunization mandated by Act 244.

We hold that a chiropractor is not a physician within the context of Act 244 and that the certificate upon which appellants rely does not meet the requirements of the act. Therefore, it is not necessary for us to consider the other arguments presented by the appellants.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Kevin BARNES v. STATE of Arkansas
    CR 83-146
    665 S.W.2d 263
    Supreme Court of Arkansas
    Opinion delivered March 5, 1984

      Paul K. Lancaster and Joe K. Hardin, for appellant.

      Steve Clark, Atty. Gen., by: Patricia G. Cherry, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant was arrested just before midnight, February 26, 1983, in Huntsville, Missouri, for speeding, not having a driver’s license, and driving while under the influence of intoxicants. He was placed in jail and early the next morning, the 27th, was advised of his Miranda rights and then questioned. He stated that the car had been loaned to him by a girlfriend but the police discovered the car was registered in the name of Eddie Hilligas. A sawed-off .22 caliber rifle was found in the car. That afternoon his rights were again explained and he was questioned for a second time. He made no incriminating statements. Shortly after midnight on February 28, appellant sought out a deputy sheriff and, after again being told of his Miranda rights, dictated a statement saying that the rifle was found in mid-January at a house he and Barbara Hilligas had rented in Saline County. On March 3, at 5:30 p.m., while being questioned about a forged check, appellant stated that on February 7, 1983, he had accidentally killed Barbara Hilligas and gave directions which enabled other officers to find her body in a remote section of Saline County. Appellant was convicted of first degree murder and sentenced to life in prison. His point on appeal is that the failure of the Missouri officers to reapprise him of his Miranda rights after February 28 renders statements made on and after March 3 inadmissible. We affirm the conviction. Jurisdiction is in this Court under Rule 29(l)(b).

Among the factors to be considered in determining the voluntariness of a confession are the age, education, and intelligence of the accused, lack of advice as to his constitutional rights, length of detention, repeated and prolonged nature of questioning, or the use of physical punishment. Elmore v. State, 267 Ark. 952, 592 S.W.2d 124 (1979). Appellant was thirty-two years old at the time of the trial. The record does not indicate appellant’s education level or intelligence quotient but he clearly was able to comprehend and answer questions at trial. This basic comprehension supports the position that he understood the Miranda rights when they were explained to him. His prior felony conviction increases the likelihood that such rights were not novel to him. Indeed, appellant does not allege a lack of understanding of the rights, or that he was physically or psychologically coerced, or that he was promised favorable treatment as an inducement to give a statement. His argument is that the lapse of time was so great between the warning and the statement as to render the statement necessarily involuntary.

We do not have a mechanical rule for measuring the longest permissible interval between the last warning and the statement. In Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974), we said:

We have never attempted to set a fixed limit on the interval of time which must elapse between advice to an accused of his constitutional rights and an incriminating statement before a new warning is essential to admissibility of the statement. Probably we never will, because we must view the totality of the circumstances in our independent review of the record to determine whether such a statement is voluntarily made. See Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1975). We have held that a three-month interval is too long. Scott v. State, 251 Ark. 918, 475 S.W.2d 699. On the other hand, we held that a three-hour delay between warning and confession was not so long as to require repetition of a warning where other evidence that the confession was voluntary preponderated. Summerville v. State, 253 Ark. 16, 484 S.W.2d 85. In a factual situation very analogous to this, we found the evidence that a statement was voluntary to be overwhelming in spite of the fact that at least three or four days intervened between the accused’s being informed of his constitutional rights and his relating his version of a killing to officers he asked to come to the jail where he was incarcerated. O’Neal v. State, 253 Ark. 574, 487 S.W.2d 618.

Here, the questioning from February 28 to March 3 was not onerous. Appellant was not subject to lengthy or repeated questioning. In fact, appellant sought out the officers on the 28th to give the statement about finding the rifle.

On March 3, the appellant was being questioned about a different crime when he said that he wanted to make a statement about Barbara Hilligas. The resulting statement was not a confession obtained by interrogation; it was a statement made to meet a professed need to repent for the killing while still claiming that it was an accident. The following colloquy, taken from appellant’s direct examination, is illustrative:

Q Why did you decide that you needed to talk to them and tell them what you had done?
A I was feeling bitter inside. I was feeling like I was going to explode if I didn’t tell somebody what happened.

Under all of the circumstances, the interval between the last warning and the giving of the statement does not prevent the statement from being knowingly and voluntarily made. The trial judge was correct in allowing the statement into evidence.

Affirmed.


text:
    Edna THOMPSON et al v. John GRAVES et al
    83-267
    665 S.W.2d 268
    Supreme Court of Arkansas
    Opinion delivered March 5, 1984

      Hixson, Cleveland ir Rush, by: Coy J. Rush, Jr., for appellants.

      Smith, Stroud, McClerkin, Dunn ér Nutter, by: Hayes C. McClerkin, Nelson V. Shaw, and Demará Hart Edwards, for appellees.
   Steele Hays, Justice.

This dispute concerns the right to minerals under a lost deed. Appellants, who were the grantors, contend the mineral rights were reserved. The grantee is deceased but her successors in title deny the lost deed contained any reservation of minerals and rely on adverse possession as well.

Appellants, Ona Wilson and Edna Thompson, are sisters. When their father died in 1944 they inherited an undivided half interest in 120 acres in Logan County. In February 1947 appellants conveyed their interest to Edna Graves, from whom appellees acquired title. The deed was never recorded but in 1956 Edna Graves recorded an Affidavit of Lost Instrument which recited that she had acquired the acreage and had immediately taken possession and begun improvements. The affidavit makes no mention of mineral rights.

Oil and gas development began in the area in the 1950’s including three leases executed on the land involved. In 1982, some months after the owners had executed another oil and gas lease on the same property, appellants were asked to give a quitclaim deed, by the lessee, which they declined to do. Instead, they called on the appellees to acknowledge appellants’ ownership of half the minerals under the 1947 deed, the first time any such claim was made since the original conveyance. The appellees refused and appellants filed suit to quiet title to half the minerals.

The Chancellor found the records of Logan County contained no evidence of a severance of the mineral estate from the surface estate and, therefore, adverse possession was applicable to the minerals. The Chancellor reached the correct result.

Appellants urge it was error for the Chancellor to ignore the mineral clause in the lost deed. They point out that both appellants testified positively that they wanted the minerals reserved and instructed their lawyer accordingly. They remembered seeing language to that effect in the deed before it was delivered to Edna Graves. Appellants argue that their testimony stands unrefuted since Edna Graves is not alive to speak and the appellees have no direct knowledge of what the lost deed contained. But the Chancellor was not required to accept that testimony as fact. They were parties to the suit and their interest in the outcome is such that their testimony is not to be taken as uncontradicted. Old Republic Insurance Co. v. Alexander, 245 Ark. 1029, 436 S.W.2d 829 (1969). Wasson v. Lightle, 188 Ark. 440, 66 S.W.2d 652 (1933).

Appellees rely on the settled principle that those who claim under a lost deed must prove its contents by clear, satisfactory and convincing proof. Baer v. Coleman, 235 Ark. 488, 360 S.W.2d 761 (1962); Martin v. Martin, 210 Ark. 904, 198 S.W.2d 408 (1947); Schwartz v. Hardwicke, 229 Ark. 134, 313 S.W.2d 832 (1958). Appellants’ proof fell well below this requirement. Appellants never made any separate assessment of the mineral interests they claim were reserved. They did not inquire about the minerals, nor attempt to obtain any leases on the lands even though there was drilling going on in the area and on other property they owned. They were certain that they had reserved the mineral interests because it was their usual practice to do so; however, appellees proved that in three other transactions appellants had not reserved the minerals. Appellee John Graves, testified that appellant Thompson’s husband had worked for him when oil and gas leasing and drilling were occurring on bordering properties but appellants made no claim to the mineral rights supposedly reserved until this suit was filed, a span of thirty-five years. The only proof which supports appellants’ position is their own assertions that the deed contained the alleged reservation and, as we have noted, the Chancellor was not required to accept that testimony as fact. It follows that appellants’ proof failed to meet the requirements of the law. We need not reach the issue of adverse possession.

The decree is affirmed.


text:
    Daniel Elmer LUM v. STATE of Arkansas
    CR 84-20
    665 S.W.2d 265
    Supreme Court of Arkansas
    Opinion delivered March 5, 1984

      David W. Kirk, for appellant.

      Steve Clark, by: Patricia G. Cherry, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant Daniel Lum, was charged with the offense of battery in the first degree of Annette Mautz under Ark. Stat. Ann. § 41-1601 (1) (c). He was tried before a jury, found guilty of battery in the second degree and sentenced to six years. Appellant raises three points for reversal, none of which have merit.

There is no dispute as to the facts of the case, and the appellant himself testified, describing the battery and the surrounding circumstances. Appellant had been living with Debbie Hamm for about one year and Annette Mautz, Debbie’s younger sister, had persuaded Debbie to move out of Lum’s apartment. Later that day, Lum saw Annette in her car with her children and Debbie. Lum described what happened:

I’m not really disputing any of the facts that have been brought out here today.... I come out by the car there, I looked in there and seen Annette. I opened the door and told that she was going to get her ass whupped (sic) . . . and then I caught her by the hair of the head, pulled her over to the side and hit her three times. I hit her with my balled up fist. ... I am six foot three inches in height and weigh 200 pounds . . . I was mad and I think I had a right to be mad. I lost control of my temper. Annette didn’t have a gun or knife or anything. She didn’t threaten me in any way. I hit her three times in the face. All three times were in the same place. I pulled her over by the hair of the head.

The victim’s husband saw his wife immediately after the beating and testified that “the right side of her head was swollen from the top of her head down to her neck, terribly, and she had blood coming out of her right eye, coming out of her nostrils, coming out of her mouth and coming out of her right ear.” The victim’s twelve-year-old daughter was watching as Lum struck her mother and testified that “she had blood coming out her eye and her nose and her mouth and it was over her clothes, the car seat, steering wheel and all in her hair.” The victim was hospitalized for five days. Her physician testified in detail to the extent and nature of her injuries. She had suffered fractures in three areas of her face — the area surrounding the right eye socket, the sinus wall and the cheekbone. Holes were drilled in the honey area near the eye socket and nasal passages to allow for the wiring together of the cheekbone area. She had impaired vision for approximately two weeks, two months of pain, six weeks of medical supervision and continues to lack some feeling in the right side of her face.

Appellant’s first two arguments address essentially the same issue and we will deal with them together. At the close of the State’s case, the appellant moved for a directed verdict on the grounds that there was insufficient evidence of a “serious physical injury” as required by § 41-1601 (l)(c), which reads:

A person commits battery in the first degree if: he causes serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life.

The motion was denied. Appellant was subsequently found guilty of battery in the second degree under § 41-1602 (1) (a):

A person commits battery in the second degree if: with the purpose of causing physical injury to another person, he causes serious physical injury to any person.

Appellant argues that there was insufficient evidence to support the jury’s finding that appellant caused “serious physical injury.”

A directed verdict is given only in cases where no issues of fact exist and the court reviews the evidence in the light most favorable to the appellee. Burks v. State, 255 Ark. 23, 498 S.W.2d 336 (1973). In determining the sufficiency of the evidence the court must determine whether there is substantial evidence to support the verdict — evidence that is forceful enough to compel a conclusion one way or another beyond suspicion and conjecture. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980).

Serious physical injury is defined in § 41-115 (19):

“Serious physical injury” means physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ.

In Harmon v. State, 260 Ark. 665, 543 S.W.2d 43 (1976) the appellant raised the same argument surrounding the nature of a “serious physical injury.” In that case the victim “suffered a broken leg, a fractured toe, bruised heel and pelvis. He was hospitalized for about a month and was in a leg cast and traction for two or three weeks during this time. He was walking with crutches at the time of the trial about a month and a half after the offense.” We cited § 41-115 (19) and concluded:

We cannot say as a matter of law, that a fact question did not exist as to whether the victim’s injuries constituted a “protracted impairment of the function of any bodily member or organ.” Webster’s Third New International Dictionary defines “protract” as “to continue, prolong, lengthen in time.” It was for the jury to resolve the issue as to whether the injuries constituted a temporary or protracted impairment.

We cannot say that under the evidence presented to the jury, and comparing the two cases that the trial court could find that there was no issue of fact, or the evidence insufficient to support a finding of serious physical injury.

Appellant’s third assignment of error is that § 41-115 (19) defining “serious physical injury” is vague and overbroad and sets no clear standard for the regulation of conduct resulting in physical injury. Appellant argues that since common understanding and practice applies a different connotation to this phrase than legislative intent, it creates an ambiguity and confusion in application. In Harmon, supra the appellant was challenging the requisite elements of § 41-1602 (l)(d) on the same grounds. § 41-1602 (l)(d) provides:

A person commits battery in the second degree if: he recklessly causes serious physical injury to another person by means of a deadly weapon.

We defined the degree of particularity required:

The Constitution has erected procedural safeguards to protect against conviction for crime except for violation of laws which have clearly defined conduct thereafter to be punished; but the Constitution does not require impossible standards. The language here challenged conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.

See also Martin v. State, 261 Ark. 80, 547 S.W.2d 81 (1977). We went on to say that “the language of § 41-1602 (l)(d) [which includes ‘serious physical injury’ as defined by§ 41-115 (19)] was of such common understanding and practice that it could not be said that an ordinary individual or juror would have to speculate as to its meaning.” We find that serious physical injury as defined in § 41-115 meets the constitutional standards we have set out. As the state concludes in its brief: “The statute states the extent of harm that the victim must endure in order for the injury to constitute a 'serious physical injury’. It would be unwise and unnecessary to define the phrase in a more precise and inflexible manner as the general language sufficiently describes the requisite extent of harm to the victim.” See State v. Weston, 255 Ark. 567, 501 S.W.2d 622 (1972).

The judgment is affirmed.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice, George Rose Smith, Justice,

text:
    HOWARD BUILDING CENTRE v. Billy T. THORNTON and Brenda THORNTON
    83-257
    665 S.W.2d 870
    Supreme Court of Arkansas
    Opinion delivered March 12, 1984
    [Rehearing denied April 9, 1984.]

      Anderson, Crumpler ir Bell, P.A., for appellant.

      Larry W. Chandler, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellees, the Thorntons, hereinafter owners, entered into a contract with Tubb, hereinafter contractor, to build them a home. Appellant, Howard Building Centre, Inc., hereinafter materialman, supplied $10,535.20 in building materials used in the construction of the home. The owner paid the contractor for the materials, but the contractor failed to pay the materialman who brought suit claiming a lien against the premises under Ark. Stat. Ann. § 51-601 (Repl. 1971). The trial court dismissed the complaint, holding the materialman’s claim was barred by the doctrine of equitable estoppel for the reason that, unbeknown to the owner, the materialman and the contractor had entered into a secret agreement whereby all payments made to the materialman by the contractor would be applied to past due accounts without regard to the account to which the money rightfully should have been applied. On appeal we affirm.

Initially, the materialman contends that the trial court erred in applying the doctrine of equitable estoppel to bar it from enforcing its materialman’s lien. The materialman bases this argument on the fact that equitable estoppel is an affirmative defense which must be affirmatively pled. The doctrine was first mentioned in the trial court’s decree, but the materialman failed to object in the trial court to the wording of the decree. Arkansas Rules of Civil Procedure Rule 46 requires that at the time an order of court is made a party make known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor. In any event the rule requiring equitable estoppel to be affirmatively pled disappears when facts regarding estoppel are admitted in evidence or become an issue in the case without objection. Aclin v. Caplener, 229 Ark. 718, 318 S.W.2d 141 (1958). Testimony established that the owners had no personal knowledge of the secret agreement. The owners could not be expected to plead a defense of which they were unaware. The materialman first disclosed the fact of the secret agreement at trial. It was not necessary to make an affirmative pleading on the matter.

The materialman next argues that if equitable estoppel is to be considered, there was insufficient evidence presented at trial to sustain this defense. The principle of equitable estoppel is that a party who by his act or failure to act when he should, either designedly or with willful disregard of the interest of others, induces or misleads another to change his position to his detriment is estopped to assert his right afterwards. Williams v. Davis, 211 Ark. 725, 202 S.W.2d 205 (1947). In Long-Bell Lumber Company v. Auxer, 221 Ark. 672, 255 S.W.2d 163 (1953), we held:

Our rule is well settle that in circumstances such as are presented here, if Long-Bell knew, or by the exercise of reasonable diligence, or care, should have known the source of the money which Auxer paid to it, then it was obligated to credit the Heburn job therewith.

In applying this legal principle to the facts of this case, it is apparent that the owners had no knowledge of the agreement, and if such agreement had been disclosed, they would have had the opportunity to protect their interests. The materialman, by entering into the secret agreement, certainly knew from the terms of the agreement that payment from the contractor was not going to be applied to the accounts on which payment was received. Yet he applied the payments to these accounts to the detriment of the owners in order to curry the favor of “some doctors and lawyers that could really do him [contractor] a lot of damage.” Here, the materialman is estopped from enforcing the lien by entering into an agreement which prohibited him from exercising any discretion or care in the matter. The proof regarding the secret agreement is undisputed. Therefore, we affirm the trial court’s application of equitable estoppel.

We affirm.

Hickman, J., concurs; George Rose Smith, Purtle .and DudLey, JJ., dissent.

Darrell Hickman, Justice,

concurring. I agree with the result in this case but concur to emphasize the respective legal duties. The appellees, homeowners, had no duty to make out a joint check to the builder and materialman, and had no duty to purchase a bond, although either act would have been good judgment on their part. The appellant, Howard Building Centre, knew that the builder had a duty to pay for the material purchased for the appellee; but in its own selfish interest, appellant made an agreement with the builder which would prevent the application of those funds to the account of the appellees. There is no question that Howard Building Centre knew that the funds it was receiving were not being applied to the acounts they should have been, which could result in a loss to a homeowner. Therefore, it should be denied its rights as a materialman. This is just the sort of chicanery that can occur when a builder is financed by a materialman.

George Rose Smith, Justice,

dissenting. When the Thorntons employed the contractor, Bobby Tubb, to build their house, they did not require a contractor’s bond, and as the work progressed they made no effort to see that their payments were properly used. Consequently, under our law their house is subject to Howard’s materialman’s lien unless Howard is somehow estopped to assert the lien. I do not understand how the court arrives at the theory of estoppel.

When the construction of the Thorntons’ house was begun, Tubb was already in financial difficulty. Mike Danner, Howard’s manager, had told Tubb that his credit would be cut off if any materials sold to him were not paid for within 90 days. Tubb agreed with Danner that any monies he paid to Howard would be applied to the oldest account. In that way Tubb was able to keep marginally solvent, partly by turning over $10,000 worth of real estate to Howard. Finally, however, Tubb was unable to meet the 90-day deadline and went into bankruptcy.

As far as I can see, the Tubb-Howard arrangement was legal. There is no doubt that a debtor has an absolute right to direct the application of his payments to the creditor. Snow v. Wood, 163 Ark. 280, 259 S.W. 733 (1924). Hence Tubb had a right to direct that his payments be applied to his oldest accounts; so the parties could certainly adopt that procedure. It is true, of course, that a materialman cannot wrongfully apply money paid by a particular owner if the materialman knows where the money came from. Long-Bell Lbr. Co. v. Auxer, 221 Ark. 672, 255 S.W.2d 163 (1953). But here Tubb had eleven jobs in progress, and it is undisputed that Danner did not know the origin of Tubb’s payments, which were made by his personal check. The Thorntons did not take the simple precaution of making their advances payable jointly to Tubb and his supplier.

Although the arrangement appears to have been legal, the court nullifies it by saying that it was “secret,” which prevented the Thorntons from somehow protecting themselves. I do not understand why the agreement was secret, nor do I think businessmen reading the opinion will understand why. The agreement already existed when Tubb began making purchases from Howard for the Thornton job. Tubb had been definitely slow in his payments, but he was staying within the 90-day limit. Does the court mean by “secret” that Danner should have warned the Thorntons at the outset that Tubb was slow in making his payments? Howard wanted to do business with Tubb, who had been a successful contractor and good customer for ten years. Was there a duty on Howard’s part to risk destroying Tubb’s credit, and lay itself open to a damage suit, by cautioning Tubb’s new homebuilders that Tubb was slow in paying? I simply do not understand why Howard, by agreeing to a method of applying Tubb’s payments — a method that Tubb had the absolute right to select — created an estoppel. An estoppel requires reliance by the other party. The Thorntons could not have relied upon an arrangement of which they had no knowledge. Unless Howard had a duty to inform the Thorntons, and the court’s opinion does not spell out any such duty, there can be no estoppel.

Purtle and Dudley, JJ., join in this dissent.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice, Steele Hays, Justice,

text:
    L. L. COLE & SON, INC. and Estate of Richard L. COLE v. Rickey HICKMAN
    84-5
    665 S.W.2d 278
    Supreme Court of Arkansas
    Opinion delivered March 12, 1984

      Fletcher C. Lewis, for appellant.

      Daggett, Daggett if Van Dover, by: Doddridge M. Daggett, for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, L. L. Cole 8c Son, Inc. leased two rice fields to appellee, Rickey Hickman, for the 1980 crop year. Appellee filed suit alleging in his complaint that during the term of the lease, appellant, Richard L. Cole, acting both individually and on behalf of L. L. Cole 8¿ Son, Inc., deliberately and maliciously (1) evicted Hickman from ricefield #1; (2) removed the keys from a diesel engine used to irrigate rice field #2 causing 90% damage to the rice crop because of lack of water; and (3) “pursued a course of conduct which was designed to, and did, harass, ridicule, and embarrass this plaintiff [appellee], both publicly and privately.” Appellee then prayed for $30,000.00 in compensatory damages in regard to field #1 and $23,400.00 in compensatory damages in regard to field #2 and $500,000.00 punitive damages for “tortious breach of contract.” A jury returned a verdict for Hickman in the amount of $42,270.00 compensatory damages and $275,000.00 punitive damages.

From this judgment appellant appeals, alleging six points for reversal. On appeal we reverse in part and affirm in part.

Appellant first argues the trial court erred in not granting his motions for judgment n.o.v. and for a new trial. To support his allegation of error, appellant contends that (1) punitive damages were incorrectly allowed in this contract action; (2) substantial evidence to support the punitive damage award did not exist; and (3) the form of the punitive damage award instruction was incorrect.

The law has long recognized the view that a contracting party has the option to breach a contract and pay damages if it is more efficient to do so. Justice Holmes articulated this idea by stating, “The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it — and nothing else.” O. Holmes, “The Path of the Law,” in Collected Legal Papers 167,175 (1920). Ordinarily, punitive damages for breach of contract are not allowed. 5 Corbin, Contracts 438 (1964); 11 Williston, Contracts 210 (3d ed. 1968). This has traditionally been the law in Arkansas. McClellan v. Brown, 276 Ark. 28, 632 S.W.2d 406 (1982); Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981); Snow v. Grace, 25 Ark. 270 (1869).

Correspondingly, the law has long been in general agreement that a third party who intentionally, and with malice, interferes with the contractual relations of another incurs liability for his action in tort. Lumley v. Gye, 118 Eng. Rep. 749 (Q.B. 1853); W. Prosser, Handbook of the Law of Torts § 129 (4th ed. 1971). Such a tort is commonly termed “interference with contractual relations” or “tortious interference with contract,” and has long been recognized in Arkansas. Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969). For a full discussion see Dobbs, Dan B, “Tortious Interference with Contractual Relationships,” 34 Ark. L. Rev. 334. The elements of the tort of interference with contractual rights are thorougly set out in Walt Bennett Ford v. Pul Co. Spl. Sch. Dist., 274 Ark. 208, 624 S.W.2d 426. See also Restatement, (Second) of Torts § 766 (1979). Malice, or bad faith, is no longer in Arkansas án essential part of the plaintiff’s case. See Walt Bennett Ford, Supplemental Opinion on Petition for Rehearing, supra, and Stebbins & Roberts Inc. v. Halsey, 265 Ark. 903, 582 S.W.2d 266 (1979). Punitive damages for the tort of interference with contractual relations may be awarded.

The law as to the relation between these two causes of action, one in tort and one in contract, when one of the contracting parties breaches the contract by an intentional act causing damage to person or property presents a confusing field still in the process of development. Generally, a breach of contract is not treated as a tort if it consists merely of a failure to act (nonfeasance) as distinguished from an affirmatively wrongful act (misfeasance). Morrow v. First Nat. Bank of Hot Springs, 261 Ark. 568, 550 S.W.2d 429 (1977). Also see Prosser, supra, § 92. The courts, however, have tended to extend the tort liability for misfeasance whenever the misconduct involves a foreseeable, unreasonable risk of harm to the plaintiff’s interests. Ordinarily, where on the facts either an action in contract or one in tort is possible, the plaintiff must make a choice. Prosser, supra § 92. A plaintiff should either plead and prove his cause of action in contract or in tort. Since the purpose of the law of contracts is to see that promises are performed while the law of torts provides redress for various injuries, and since punitive damages are ordinarily not awarded in contract but may be awarded in tort, the distinction is an important one. Where on the facts the action may sound either in contract or tort or in both, the court itself will often seek to determine the real character of the action. See Atkins Pickle Co. v. Burrough-Uerling-Brasuell, 275 Ark. 135, 628 S.W.2d 9 (1982) and Olsen v. Riddle, 280 Ark. 535, 659 S.W.2d 759 (1983) .

Such is the case at bar. In his complaint, appellee Hickman has mixed allegations arising from a breach of contract with allegations of incidents which could form the basis of a tort action but which could also be proof of a breach of contract. In his prayer, appellee Hickman prays for punitive damages for “tortious breach of contract.” The record reflects confusion as to whether he is claiming damages for breach of contract, for tortious interference by Richard Cole with the contract negotiated between L. L. Cole & Son, Inc. and Hickman, or for tortious misfeasance incidental to the breach of contract.

There have been cases decided by this court in which punitive damages were seemingly allowed in an action on the contract. However, in those cases, other factors, some disclosed and some not disclosed in the opinion, satisfied our requirement that punitive damages must be predicated on some tortious act. In other cases, this court has sought to determine whether the cause of action sounds more in contract or more in tort with varying results. In the case at bar, we conclude the action is one in contract. Punitive damages were, therefore, improperly awarded.

Prospectively, we hold that in actions where on the facts either an action in contract or one in tort is possible, the plaintiff must specifically plead and prove his cause of action in tort in order to be awarded punitive damages. Otherwise, the presumption will be that the action is in contract where punitive damages are not recoverable.

Second, appellant argues that the trial court erred in allowing $21,500 as compensatory damages for alleged loss of equity in equipment taken by repossession. Since the jury returned a general verdict in the amount of $42,270, there is no way to distinguish what amount was awarded for loss of equipment in connection with field #1 and what amount was awarded for loss of crop in connection with field #2. The record reflects that Hickman testified that when he entered into the farm lease with Cole in anticipation of planting rice he bought new equipment which he would not have bought had he known field #1 was going to be taken away from him. He further testified that he tried to find replacement land to farm, but that at the end of 1980 he was unable to make his equipment payments and had lost equity in the amount of $21,500.00. Owners of property may testify as to the value of the property for the purpose of determining damages. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980); Garrett v. Trimune, 254 Ark. 79, 491 S.W.2d 586 (1973). The evidence was undisputed that Hickman lost equity in equipment in the amount of $21,500. Appellants’ only objection was to a jury instruction based on this testimony on the ground that loss of equity was not the proper measure of damages. On appeal we view the evidence in the light most favorable to the appellee. There is substantial evidence to support the finding of the jury.

Third, appellant argues that the trial court erred in not granting his motions for mistrial and for new trial because of alleged misconduct of a juror and because of surprise resulting from change in the testimony of a witness. Mistrial is a drastic remedy. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982). Since appellant has not demonstrated that he was clearly prejudiced by these events, we cannot say the trial court abused its discretion in denying the request for a mistrial.

Fourth, appellant argues that the trial court erred in admitting parol evidence relating to the written farm lease between Hickman and L. L. Cole 8c Son, Inc. A term of the lease was a provision regarding the furnishing of a rice well. The parol testimony was admitted to explain what was meant by that term. The parol evidence rule does not preclude an oral explanation of an ambiguity in an agreement. Blount v. McCurdy, 267 Ark. 989, 593 S.W.2d 468 (1980). There was no error.

Fifth, appellant argues the trial court erred in its refusal to admit testimony of two defense witnesses who offered statements of Richard Cole (deceased at the time of trial) which were self-serving as to Cole. Statements, other than those made at trial by the declarant, offered in evidence to prove the truth of the matter asserted are hearsay and are therefore inadmissible. Ark. Unif. R. of Evid. 801(c); Gautney v. Rapley, 2 Ark. App. 116, 617 S.W.2d 377 (1981). The trial court properly excluded this testimony.

Affirmed in part; reversed in part.

George Rose Smith, Hickman, Hays and Hollingsworth, JJ., concur in part and dissent in part.

Darrell Hickman, Justice,

concurring in part; dissenting in part. There is no substantial evidence to support an award of $21,500 for loss of “equity” in equipment. Hickman, the appellee, testified that he had “lost equity in his equipment,” but he could only point to a disc that was repossessed at the time of the trial; he still had the other equipment. One cannot lose something one still has.

The appellants properly objected to an instruction which permitted the jury to consider this evidence. The equity must be lost, through repossession, to be a recoverable damage. See Brickey v. Lacy, 245 Ark. 860, 435 S.W.2d 443 (1968). Hickman had paid $1,500 on the disc; therefore, I would reduce the award of $21,500 for loss of equipment to $1,500.

George Rose Smith, J., joins in this opinion.

Steele Hays, Justice,

concurring in part; dissenting in part. I have no disagreement with the court with respect to compensatory damages, but I do not agree that punitive damages were improperly awarded. To reach this conclusion the majority opinion largely skirts the facts while carefully examining the language of appellee’s complaint to determine whether it sounds more nearly in tort than in contract and settles on the latter, citing Atkins Pickle v. Burrough-Uerling-Brasuell, 275 Ark. 135, 628 S.W.2d 9 (1982). But there is a marked difference between that case and the case before us. In Atkins Pickle v. Burrough-Uerling-Brasuell, the trial court had dismissed a suit by Atkins Pickle attempting to fix venue in Pope County, rather than in a county less to its liking, and thus the issue there hung by a thread on whether the cause of action was for injury to real property, which would establish venue in Pope County, or for breach of contract, which would place venue elsewhere.

Here the trial court held, correctly I think, that the proof sustained a submissible issue for the jury on punitive damages and on appeal the fine wording of the complaint should not concern us so much as whether under the appellee’s pleading and proof punitive damages are recoverable under our law. Bearing in mind that we view the evidence in appellee’s favor, I believe the punitive damages were sustained on both counts, though without reference to the amount awarded, which I do not address.

We have recognized, as we should, that punitive damages may be recovered where the cause of action is essentially contractual in nature if accompanied by conduct which is willful or malicious. McClellan v. Brown, 276 Ark. 28, 632 S.W.2d 406 (1982); Curtis v. Partain, 272 Ark. 400, 614 S.W.2d 671 (1981); Morrow, et al v. Hot Springs First National Bank, 261 Ark. 568, 550 S.W.2d 429 (1977). This is the overwhelming view. Restatement of Contracts, Second, § 355, states the rule to be: "Punitive damages are not recoverable for a breach of contract unless the conduct constituting the breach is also a tort for which punitive damages are recoverable.” And this is said to be true in “almost every jurisdiciton in which the matter has been considered judicially or resolved legislatively.” (See Punitive Damages, Law and Practice, Ghiardi and Kircher, § 5.16, citing some thirty-five jurisdictions.)

The remaining question is, was the breach of appellee’s lease such as to give rise to a cause of action in tort? Only one answer is possible. Appellee alleged and proved facts which would be cognizable under either of two recognized torts, i.e. intentional infliction of mental distress (See Prosser, Law of Torts, 4th Ed., § 12, p. 49) and intentional interference with contractual rights. Prosser, § 129, and Mason v. Funderburk, 247 Ark. 521, 446 S.W.2d 543 (1969), where we upheld a cause of action for interference with a contract:

The basic elements going into a prima facie establishment of the tort are (1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.”
Here, appellee’s complaint accused the appellant of "deliberately, maliciously and wantonly, in complete disregard for the property rights of the plaintiff,” breaching the contract, alleging specific acts of interference; further, that appellant pursued a course of conduct toward the plaintiff designed to "harass, ridicule and embarrass the plaintiff;” that appellant would call plaintiff at hours between midnight and 2:00 a.m. and would "curse and abuse” him with the intent of causing emotional distress. The allegations fully state a cause of action in tort and the proof presented in trial sustained these allegations: The appellee testified that after being ordered off one of the two rice fields leased to him (after he had completed preparations for planting), he was subjected to intentional interference on the other field by the appellant, who removed the key to a relift pump, thereby depriving appellee’s rice of water for three or four days, resulting in crop damage. Appellee testified that at various times, including “all hours of the night,” the appellant would call him to threaten him in his efforts to produce a crop, using such terms as "liar, lazy, stupid and goddamn dog,” in reference to the appellee. Granted, the law does not ordinarily protect the individual from harsh words alone, although there are exceptions [see Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Texas, 1967)], but in this case the abusive language was coupled with affirmative, tortious conduct. The trial court correctly submitted the issue of punitive damages to the jury under the proof and the law.

Justice Hollingsworth joins in this dissent.