author:
Jack Holt, Jr., Chief Justice. Jack Holt, Jr., Chief Justice. Steele Hays, Justice,
      David Newbern, Justice,

text:
    JIM HALSEY CO., INC. v. Chet BONAR
    84-180
    683 S.W.2d 898
    Supreme Court of Arkansas
    Opinion delivered February 4, 1985
    [Supplemental Opinion on denial of Rehearing April 15, 1985.]

      Martin, Vater & Karr, by: Charles Karr, for appellant.

      Jack Skinner, for appellee.

      Purtle, Dudley, and Newbern, JJ., would grant rehearing.

   Jack Holt, Jr., Chief Justice.

This case arose when Rick Nelson did not appear for a muscular dystrophy benefit concert in Fort Smith. The concert promoter, Chet Bonar, filed suit against Nelson’s booking agent, Jim Halsey Co., Inc., for breach of contract, fraud, and negligence. This appeal from the jury’s verdict in favor of the promoter is before us under Sup. Ct. R. 29(1) (c) and (o) as it presents questions about an act of the general assembly and in the law of torts. We affirm.

The facts are summarized as follows: A muscular dystrophy association festival was planned in Fort Smith by the appellee, Bonar, and others, which was to include an arts and crafts fair, other activities at Kay Rodgers Park, and a concert by a named performer. Bonar was to receive 25% of the gross from ticket sales, gate fees, and arts and crafts table rentals. Bonar contacted the appellant, Halsey Inc., to hire a performer for the concert. Rick Nelson was selected for a $6,500.00 fee. The fee was increased twice with Bonar’s approval until it was set at $8,500.00. In each instance a contract was prepared by Halsey, Inc., and sent to Bonar for his signature. Bonar returned the signed contract to Halsey Inc., and it was forwarded to Nelson for his signature. It was never signed by Nelson or by his personal manager, Greg McDonald.

Bonar made a $3,750.00 deposit to Halsey Inc. on July 27, 1979, and began promoting the concert based on the appellant’s assurances that Nelson would appear. The concert was scheduled for August 18, 1979. The final contract was sent to Bonar for his signature on August 2, which Bonar again signed and returned to Halsey Inc., who again forwarded it to Nelson. He still did not sign the contract. Two days before the concert, McDonald notified Halsey Inc. who in turn notified Bonar that Nelson would not perform at the concert. Halsey Inc. offered Hank Williams, Jr., in his place, and Williams played the concert for a fee of $6,500.00.

Bonar filed suit for breach of contract, fraud, and negligence. The jury returned a verdict for Bonar for $100,000.00.

The appellant raises numerous points on this appeal. We will address them in the order in which they were discussed in the parties’ briefs.

The first allegation is that the trial court erred when it submitted the case to the jury on any theory other than breach of contract. The appellee also alleged fraud and negligence in his complaint. The jury was instructed as to these two theories in addition to breach of contract.

The appellant is apparently arguing that the appellee cannot pursue his case under two theories — contract and tort. Halsey Inc. maintains therefore that breach of contract is the appropriate theory, since the facts do not support the allegations of fraud and negligence. This argument is without merit.

This court has held that when a defendant denies liability, a plaintiff may proceed under two consistent theories of recovery, Elrod v. G&R Const. Co., 275 Ark. 151, 628 S.W.2d 17 (1982); Brown v. Aquilino, 271 Ark. 273, 608 S.W.2d 35 (1980); Ark. R. Civ. P. 18(a); Brill, The Election of Remedies Doctrine in Arkansas, 37 Ark. L. Rev. 385, 408 (1983). Contract and tort theories have been determined to be consistent when both seek the same relief and the evidence to support recovery on one theory partially supports it on another. Brill, supra.

Here, the remedies are concurrent and consistent in that they arise out of the same transaction, the same facts prove at least parts of the theories, and no inconsistent positions are taken.

The appellee’s allegations of fraud and negligence are based on factual representations by the appellant that they would provide Nelson for the concert. The appellee states that Halsey Inc., knew these representations were untrue and that he, as a promoter, relied on the representations and was damaged as a result. He further maintains that Halsey Inc., had a duty to warn him of the likelihood that Nelson would not appear in sufficient time for him to seek a substitute performer and fully promote that performer. The appellee offered evidence in support of these allegations sufficient to instruct the jury on theories of fraud and negligence. There was no error.

The next issue raised is that the trial court erred in admitting testimony and exhibits of potential lost profits, past and future, and submitting them as damages to the jury because such lost profits were speculative and conjectural.

The j ury was instructed that, if they ruled in favor of the appellee, they were to award him an amount of money to fairly compensate him for the following elements of damage:

FIRST: The value of any profits lost and the present value of any profits reasonably certain to be lost in the future.
SECOND: The present value of any loss of ability to earn in the future.
THIRD: The value of any expenses lost.

The appellant objected to this instruction on the basis that there was no substantial evidence making it reasonably certain that appellee would have made, or will make a profit. Halsey Inc., maintains the evidence was insufficient to remove the question of profits from the realm of speculation and conjecture. We disagree.

On appeal this court views the evidence in the light most favorable to the appellee and affirms if there is substantial evidence to support the jury’s verdict. American Fidelity Fire Ins. Co. v. Kennedy Bros. Const., 282 Ark. 545, 670 S.W.2d 798 (1984).

The appellee offered the following evidence as to lost profits. He maintained that he would have received a profit of $15,193.75 if Rick Nelson had appeared. The $15,193.75 figure was based on 85% capacity at the stadium, with half of the tickets sold to adults for $7.00 and half to children for $4.00. Half of the partial capacity seating was then multiplied by $4.00 and the other half by $7.00. These two gross revenues were then added. That total was multiplied by 25%, Bonar’s contractual share of the ticket sale. The total equalled $15,193.75.

Bonar’s evidence of loss of reputation was supported by his own testimony about the good reputation he previously enjoyed and the testimony of Fred Baker, Jr., another local promoter. Baker and other concert sponsors also testified that they would not hire Bonar again because of what happened with the Nelson concert.

Baker testified as to the amount of income the appellee will lose as a result of the damage to his reputation. The witness stated that a promoter can expect to put on at least one concert a year. He then figured a reasonable income from that concert based on a formula which included the number of seats at the local stadium, a typical ticket price, and reasonable ticket sales based on an average vacancy rate. He subtracted concert expenses and arrived at a new yearly income for the promoter of $31,880.00.

A second witness testified as to the present value calculation of that annual income over periods of three, five, and ten years.

This court has held that:

The rule that damages which are uncertain or contingent can not be recovered, does not apply to uncertainty as to the value of the benefits to be derived from performance, but to uncertainty as to whether any benefit would be derived at all. If it is reasonably certain that profits would have resulted had the contract been carried out, then the complaining party is entitled to recover.

Crow v. Russell, 226 Ark. 121, 289 S.W.2d 195 (1956), (quoting Black v. Hogsett, 145 Ark. 178, 224 S.W. 439 (1920)).

The fact that a party can state the amount of damages he suffered only approximately is not a sufficient reason for disallowing damages if from the approximate estimates a satisfactory conclusion can be reached. Williams v. Black Lumber Co., 275 Ark. 144, 628 S.W.2d 13 (1982). Here, the appellee offered sufficient proof that he would have realized a profit and an approximate estimate of what that profit would have been.

In proving anticipated profits, a party “must present a reasonably complete set of figures, and not leave the jury to speculate as to whether there could have been any profits.” American Fidelity Fire Ins. Co. v. Kennedy Bros. Const., supra (quoting Sumlin v. Woodson, 211 Ark. 214, 199 S.W.2d 936 (1947)). Here again, the appellee offered proof of the amount of lost future profits, along with the formula used to compute the amount. It was therefore not error to submit lost profits to the jury as damages.

The appellant’s third argument is that the trial court erred in not dismissing the appellee’s negligence and fraud causes of action because they were barred by the statute of limitations.

The allegations of fraud and negligence were raised by the appellee in amendments to his original complaint. The trial court has broad discretion to permit amendments to pleadings and we sustain the exercise of that discretion unless it is manifestly abused. Wingfield v. Page, 278 Ark. 276, 644 S.W.2d 940 (1983); Ark. R. Civ. P. 15.

Rule 15 not only makes liberal provision for amendments to pleadings, it also states that any claim asserted in the amended pleading, which arises “out of the conduct, transaction or occurrence set forth in the original pleading, . . . relates back to the date of the original pleading.” Rule 15(c).

Since the amendment relates back, there can be no statute of limitations objection to the amendment without proof of undue delay or prejudice. See, Brill, supra; Ozark Kenworth, Inc. v. Neidecker, 283 Ark. 196, 672 S.W.2d 899 (1984). No such proof was offered here.

The appellant next contends that the trial court erred in not dismissing appellee’s cause of action based upon fraud because the complaint and amendments failed to state with particularity the circumstances of fraud.

Ark. R. Civ. P. 9(b) provides:

(b) Fraud, Mistake, Condition of the Mind. In all averments of fraud, mistake, duress, or undue influence, the circumstances constituting fraud, mistake, duress or undue influence shall be stated with particularity.

The appellee’s amended complaint stated that the defendant (the appellant here) made factual reapresentations that they had an agreement with Rick Nelson and would provide him for the concert and that “[t]hese representations were untrue and known to be untrue by the Defendant.” Bonar the alleged reliance on the factual representations and resulting damages. When the appellant objected at trial to the proof offered as to fraud, the judge ruled that the allegation of misrepresentation in the original complaint was stated “with enough particularity to give notice and . . . the subsequent amendments relate back.”

This court has held that fraud must be specifically alleged and that, “[t]he facts and circumstances constituting the fraud should be set forth. There should be some concealment, misrepresentation (emphasis added), ... by which another is misled, to his detriment; and these . . . must be alleged and proved.” (citations omitted). Beam Bros. Contractors v. Monsanto Co., 259 Ark. 253, 532 S.W.2d 175 (1976). We found that a cause of action had been stated in Beam where the complaint alleged a representation and its falsity, which was material to the contract; reliance on the representation; the right to so rely; and resulting damages.

Here, proof was offered of a misrepresentation — that Nelson would appear — which was material to the contract; reliance on the representation since Bonar began promoting the concert; the right to so rely, based on Halsey Inc.’s representation that they hadan agreement with Nelson; and resulting damages. The allegation of fraud was therefore stated with sufficient particularity.

The fifth issue raised is that it was error to permit cameras in the courtroom and adjacent areas over appellant’s objection.

In Petition of Ark. Bar Ass’n, 271 Ark. 358, 609 S.W.2d 28 (1980), this court adopted Canon 3 of the Code of Judicial Conduct and decided to permit broadcasting and photographing of trial proceedings. See also, Modification of Code of Judicial Conduct, 275 Ark. 495, 628 S.W.2d 573 (1982) (removing the requirement of prior written consent from all parties and witnesses). The final version of the rule, in pertinent part, reads:

(b) An objection timely made by a party or attorney shall preclude broadcasting. . .of the proceedings; and an objection timely made by a witness who has been informed of the right to refuse such exposure, shall preclude broadcasting.

The rule also vests in the trial judge the right to make the final decision as to “whether it would be fitting and proper to permit photographing and recording of trial proceedings.” 271 Ark. at 361.

Appellant argues that he objected to the use of cameras in these proceedings and the activity should therefore have been prohibited. The appellant is correct in his contention that an objection by one of the parties is sufficient to prevent any broadcasting or photography. Therefore it was error for the trial judge to disregard Canon 3 and permit the broadcasting. When the appellant offered his objection at the beginning of the trial, the judge ruled that he would allow the cameras in, but he stated, “If it becomes distracting to anyone, they should raise an obj ection at that time and I’ll take care of it at that time.” Subsequently the appellant did not object.

The appellant acquiesced in the trial judge’s ruling by failing to make further objections during the course of the trial. In this instance, the error was rendered harmless. The bench and bar should be on notice however that this court will closely scrutinize any further violation of this rule.

The sixth assignment of error is the trial court’s denial of appellant’s motion for mistrial when it was revealed that two jurors watched television news accounts of the trial contrary to the court’s instructions.

The trial judge has wide discretion in dealing with a motion for mistrial and we do not reverse absent a manifest abuse of that discretion. Garner v. Finch, 272 Ark. 151, 612 S.W.2d 304(1981).

We find no such abuse of discretion here. The two jurors who watched the news account testified that all they saw was a picture of Rick Nelson and they heard that the trial was taking place after four years. The court admonished the jurors to disregard what they saw and decide the case only on what was presented in court. The appellant failed to demonstrate any prejudice as a result of the juror’s actions.

The seventh issue in this appeal concerns the trial court’s failure to dismiss appellee’s cause of action because he failed to register with the secretary of state as a professional fund raiser and because he allegedly contracted to charge more for his services than allowed by the law. This argument is also without merit.

The appellant is contending that the appellee’s failure to comply with the statute made the contract illegal and therefore unenforceable. Illegality of a contract is an affirmative defense which under Ark. R. Civ. P. 8(c) must be specifically pled. The appellant instead raised this issue in a motion for a directed verdict.

Substantively, the argument also must fail. The requirements cited by the appellant are contained in Ark. Stat. Ann. §§ 64-1608 — 64-1615 (Repl. 1980). These statutes require “any person acting as a professional fund raiser for any charitable organization to register with the Secretary of State”, § 64-1609; require all contracts between the fund raiser and the organization to be in writing, § 64-1610; and provide that no such contract shall allow the fund raiser to receive more than 25% of the money collected. Id. These are the provisions the appellant claims the appellee violated.

A professional fund raiser is defined however by § 64-1608 as “any person who for compensation or any other consideration plans, conducts or manages in this state the solicitation of contributions for or on behalf of any charitable organization.” The appellee was not soliciting contributions, he was promoting a concert and selling tickets, with the proceeds benefiting a charitable organization. The act is therefore inapplicable to him.

The next assignment of error concerns the trial court’s failure to grant appellant’s motion for summary judgment. The motion was based on the written contract which provided that any claim, dispute, or controversy arising under the contract shall be arbitrated by the international executive board of the American Federation of Musicians.

The appellant cites as authority a Louisiana case where Nelson failed to appear for a concert and the disagreement was submitted to arbitration by court order. Hodges, d/b/a/ Old South Jamboree v. Rick Nelson, et al, # 79-605-B (M.D. La. Aug. 20, 1981). That situation was distinguishable however, in that in Louisiana, there was a written signed contract and the issues to be resolved concerned who had the authority to sign for Nelson. Here, there was merely an unsigned written contract and an oral contract between the appellant and the appellee, which the appellant breached. The appellee sued for breach of the oral agreement whereby appellant promised to provide Rick Nelson for the concert. It was the written contract which contained the provision calling for arbitration. That provision is therefore inapplicable. Furthermore, this case presents questions in the law of torts which are not subject to written agreements to arbitrate. See Ark. Stat. Ann. § 34-511 (Supp. 1983).

The ninth issue is whether the trial court erred in admitting a video tape of promotions for the muscular dystrophy association because it was irrelevant and so prejudicial as to outweigh its probative value.

The evidence consisted of interviews about the festival, news stories and public service announcements. The judge admitted the evidence for the purpose of proving promotion efforts by the appellee.

Rulings on the relevancy of evidence are discretionary with the trial court and we do not reverse absent an abuse of discretion. Kellensworth v. State, 278 Ark. 261, 644 S.W.2d 933 (1983).

No abúse of discretion is demonstrated.

The final argument presented by the appellant is that the trial court should have granted his motion for judgment notwithstanding the verdict (n.o.v.) because the verdict was for excessive damages and was apparently influenced by passion and prejudice.

We uphold the denial of a motion for judgment n.o.v. “if there is any substantial evidence to support the jury’s verdict.” Arkansas Power & Light Co. v. Adcock, 281 Ark. 104, 661 S.W.2d 392 (1983). The trial judge is to set aside a jury verdict only if he finds it to be against the clear preponderance of the evidence. Pilkington v. Riley Paving Co., 271 Ark. 746, 610 S.W.2d 570 (1981).

We have previously commented on several aspects of the evidence, particularly on the admissibility of damages based on lost profits, past and future. We therefore find that there was substantial evidence to support the verdict.

delivered April 15, 1985

688 S.W.2d 275

Affirmed.

Supplemental Opinion on denial of Rehearing

Jack Holt, Jr., Chief Justice.

The trial court committed error by permitting broadcasting of a certain portion of the trial proceedings in violation of Canon 3, Code of Judicial Conduct. When an objection was made at the beginning of trial, the judge ruled that he would allow the cameras in, but he stated, “if it becomes distracting to anyone, they should raise an objection at that time and I’ll take care of it at that time.” Subsequently there were no objections. We unanimously held that the appellant acquiesced in the trial court’s ruling by failing to make further objections during the course of the trial and that in this instance, the error was rendered harmless. We further advised the bench and bar that they should be on notice that this court will closely scrutinize any further violations of this rule.

On rehearing some of our members have changed their minds and now think that violation of this rule mandates reversible error, without exception.

The majority is deeply concerned over the trial court’s obvious violation of Canon 3 which reads in pertinent part: “(b) an objection timely made by a party or attorney shall preclude broadcasting ... of the proceedings; and an objection timely made by a witness who has been informed of the right to refuse such exposure, shall preclude broadcasting.”

Although the rule also vests in the trial judge the right to make the final decision as to “whether it would be fitting and proper to permit photographing and recording of the trial proceedings,” 271 Ark. 361, the trial court is without discretion when timely objection is made. In this instance, the appellant made timely objection.

It is the opinion of the majority that the warning contained in Ford v. State, 276 Ark. 98, 663 S.W.2d 3 (1982), where we said:

[a] willful disobedience of this Canon would, no doubt, be dealt with in an appropriate manner which could go so far as to cause a retrial of the case or result in other action by this court

does not mandate automatic reversal. Had the record in this case hinted of any prejudice to the appellant by the presence of cameras within the courtroom, reversal would be in order. Absent any prejudice, to reverse and remand as punishment to the trial court would not justify the time and expense for all parties and the court system to relitigate this matter.

We have repeatedly said that a mistrial is a drastic remedy, only to be granted when no other remedy exists. L. L. Cole & Son, Inc. v. Hickman, 282 Ark. 6, 665 S.W.2d 278 (1984). That is a fair standard to apply to our decision. No longer is error presumed to be prejudicial. A litigant is entitled to a fair trial — not a perfect one. Berna v. State, 282 Ark. 563, 670 S. W.2d 435 (1984). Here, justice has been done.

In our initial opinion we placed the bench and bar on notice that we would closely scrutinize further violations of this rule. In light of the present attitude of the court, we think it is safe to say this supplemental opinion shall constitute notice that further violation of this rule will not be tolerated to any degree, and that reversal may well be automatic, rather than a matter of scrutiny for possible prejudice.

Rehearing denied.

Purtle, Dudley and Newbern, JJ., would grant.

Hays and Hickman, JJ., concur.

Steele Hays, Justice,

concurring. Before we take a hard line on the enforcement of the rule pertaining to cameras in the courtroom, we ought to examine the rule itself, now in its fifth year, to see if some relaxation is in order. A rule that requires the approval of opposing litigants is almost no rule at all, as experience teaches that adversaries in a lawsuit rarely agree on anything.

An overwhelming number of states have sensibly left the decision regarding cameras where it should be, subject to the discretion of the trial judge. (See Journal of the National Center for State Courts, Volume 9, No. 1, p. 5, for a list of some forty states permitting media coverage and the six states requiring the approval of both parties.) We ought to consider joining the majority, at least with respect to civil trials.

Hickman, J., agrees.

David Newbern, Justice,

dissenting. Rehearing should be granted. I was uncomfortable form the outset with the approach taken by our decision on the point of courtroom television. The essence of our opinion was that it was not reversible error to allow television photography in the courtroom after a timely objection but that it should never again be allowed. While I can appreciate an opinion which warns we may someday change a rule, I cannot appreciate an opinion saying we may someday enforce a rule.

The petition for rehearing made me wish I had dissented to the opinion. The petition correctly points out that a lawyer ought not be required to object more than once to a clear prospective violation of a rule, especially when the rule says a timely objection is all that is required. I am troubled by the fact that the colloquy between counsel and the court which was the entire basis of the appellant’s argument on this point was not abstracted. However, as the objection and the court’s ruling are recounted in the arguments in both parties’ briefs, as well as in our opinion, I will not be dissuaded by that lapse from expressing my concern.

According to the briefs of both parties, counsel for the appellant objected on the morning the trial began to having the trial televised. Rather than keep the trial from being televised, the judge invited counsel to object again if the cameras became distracting.

The original modification of Canon 3(A)(7) of the Code of Judicial Conduct permitted broadcasting and photographing certain court proceedings upon written consent of all participating attorneys, parties and witnesses. Re: Petition of Arkansas Bar Association, 271 Ark. 358, 609 S.W.2d 28 (1980). The Canon was modified again to permit these activities unless there is "an objection timely made by a party or attorney. ...” The sole reason given for this modification was that it was "too burdensome to the trial court and to the interested people to require written consent.” Re: Modification of the Code of Judicial Conduct Relating to Broadcasting 6- Photographing Court Proceedings, 275 Ark. 495, 628 S.W.2d 573 (1982). As this change was made solely to solve the administrative problem mentioned, it did nothing to alter the spirit of the previous per curiam order on the subject which was very protective of trial participants while attempting also to secure the rights and needs of the press and the public.

The majority seems satisfied with the fact that our opinion gives a warning to trial judges that we will not permit them to admit television cameras over objection in the future. How many times must we give that warning? In Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982), a criminal case, we said,

Canon 3(A)(7) of the Code of Judicial Conduct prevents cameras in the courtroom without the consent of the accused.. . . Our rule has been somewhat relaxed since the date of this trial. The rule was not placed into effect to be ignored by the courts.
A willful disobedience of this Canon would, no doubt, be dealt with in an appropriate manner which could go so far as to cause a retrial of the case or result in other action by this court. (276 Ark. at 111-112; 663 S.W.2d at 11)

We went to the trouble of expressing our feelings that strongly in a case in which no objection was made until the trial was over except for the sentencing phase. We should be much more concerned here where the objection was indeed timely, but all we do is issue another warning.

The supplemental opinion of the majority points out that the case has been tried and a result reached which we should not overturn because the “time and expense for all parties and the court system” would be unjustified. The appellant’s position is ignored in this assessment. If we refused to reverse because of those considerations, the need for this court would vanish.

In our original opinion we said the appellant’s counsel had acquiesced in the ruling of the court. The next sentence said “[i]n this instance the error was rendered harmless.” In the supplemental opinion the majority seems to be saying the appellant must demonstrate “prejudice.” The shift in rationale is subtle but needs to be dealt with.

A litigant denied a public trial need show no prejudice for reversal. Sirratt v. State, 240 Ark. 47, 398 S.W.2d 63 (1966). See also Taylor v. State, 284 Ark. 103, 679 S. W.2d 797 (1984). Neither should a litigant who has objected to cameras in the courtroom have to show prejudice. Counsel, having made an objection, should not be put in the position of having constantly to observe for distractions caused to jurors, witnesses and the court by the presence of television cameras. Counsel should be allowed to devote his or her entire effort to the presentation of the client’s case. The record here showed that jurors watched news reports of the trial. We cannot know what prejudice may have been caused. The point is that the rule requires automatic exclusion upon objection so that counsel will not later be placed in the position of finding and urging “prejudice” which is so obviously elusive in this context.

In KARK-TV Channel 4, Inc. v. Lofton, 277 Ark. 228, 640 S.W.2d 798 (1982), we expressed the balance struck by the U.S. Supreme Court, an followed by us, between the protection of litigants and the judicial system vis a vis the protection of the rights of the press and public to information generated by trials. I believe the path has been well charted, and I do not believe we should vary from it. If we do, it should be by consciously taking a new direction and not through the odious process of erosion which will result from violations, warnings and then more violations and more warnings.

I respectfully dissent from the refusal to grant rehearing. I would grant rehearing and remand for a new trial.

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


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice.

license: Public Domain

text:
    Coy W. PRUITT v. CARGILL, INC.
    84-197
    683 S.W.2d 906
    Supreme Court of Arkansas
    Opinion delivered February 4, 1985

      Witt Law Firm, by: Ernie Witt, and R. Kevin Barham, for appellant.

      Mobley ir Smith, by: William F. Smith, for appellee.
   Jack Holt, Jr., Chief Justice.

The question before the court concerns the granting of a motion for summary judgment. We affirm the trial court.

The appellant, Coy W. Pruitt, and the appellee, Cargill, Inc., entered into a Feeder Pig Production and Hog Feeding Agreement. During the course of the agreement, Pruitt purchased a used water tank. The tank was delivered to the appellant by an employee of Cargill. Subsequently, Cargill filed suit against Pruitt seeking the balance due on a loan. Pruitt filed a counterclaim in which he alleged that Cargill had supplied him with the water tank and that it was defective. Cargill denied that it had supplied the water tank and filed a motion for summary judgment as to the counterclaim. The motion was granted by the trial court. This case is before us under Sup. Ct. R. 29(1 )(m) as it presents a question in the law of products liability.

In support of his claim that Cargill supplied the water tank, Pruitt offered two affidavits. The first, an affidavit by Pruitt, states that an employee of Cargill told him that he needed the water tank and that subsequently, the same employee delivered the water tank to the Pruit farm in a Cargill truck. Pruitt said, “I thought that I was buying the tank from Cargill.” The second affidavit is by an employee of Pruitt’s who stated that he was present when the water tanks were delivered and, he too thought that Pruitt bought the tanks from Cargill.

The appellee supplied nine affidavits of employees and business associates all of which state that Cargill has never engaged in the business of selling or distributing used water tanks. Furthermore, the Cargill employee who delivered the tank stated that he did so as a favor and at Pruitt’s request. The employee stated that he picked the used tank up for Pruitt from a Russellville company.

The trial judge held that,

[T]he basic issue before the Court is whether there is a genuine issue of fact as to whether Cargill, Inc., “supplied” the used tank in the instant case and is, therefore, subject to liability under Ark. Stat. 85-2-318.2____
It appears to the Court that defendant’s argument does not raise a genuine issue of fact. The question is not whether plaintiff appeared to be a “supplier” but whether plaintiff was, in fact, a supplier. There is nothing shown by the pleadings and exhibits that creates an issue of fact on this point, and, therefore, the Court does grant plaintiff’s Motion for Summary Judgment.

Ark. Stat. Ann. § 85-2-318.2 (Supp. 1983) provides in pertinent part:

A supplier of a product is subject to liability in damages for harm to a person or to property if:
(a) the supplier is engaged in the business of manufacturing, assembling, selling, leasing or otherwise distributing such product;

Here, there was no proof that Cargill, Inc., was engaged in the business of supplying water tanks. See Lancaster v. Hartzell & Assoc., 54 Or. App. 886, 637 P.2d 150 (1981); Tauber-Arons, Etc. v. Superior Court, Etc., 101 Cal. App. 3d 268, 161 Cal. Rptr. 789 (1980); McKenna v. Art Pearl Works, Inc., 225 Pa. Super. 362, 310 A.2d 677 (1973); Pridgett v. Jackson Iron and Metal Co., 253 So. 2d.837 (1971, Miss.).

Summary judgment is proper when “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” AR Civ. P Rule 56(c).

Although affidavits for summary judgment are construed against the moving party, once the movant makes a prima facie showing of entitlement the respondent must meet proof with proof by showing a genuine issue as to a material fact. Hughes Western World, Inc. v. Westmoor Mfg. Co., 269 Ark. 300, 601 S.W.2d 826 (1980). In Hughes this court found that the respondent’s burden of going forward was not met when the affidavits did not assert the required personal knowledge of facts alleged. The qualification, “as Affiant understands it,” was not found to be a positive statement made on personal knowledge as required by AR Civ. P Rule 56. The same is true here. Cargill’s proof that it is not a supplier of water tanks is prima facie evidence of entitlement to summary judgment. The mere assertion in Pruitt’s affidavit that he “thought” he was buying the tank from Cargill is not a sufficient statement of fact, based on Pruitt’s personal knowledge, that Cargill was a supplier of the product in question. Accordingly, summary judgment is proper.

Affirmed.


text:
    Louis Charles JACKSON and Matthew AUSTIN v. STATE of Arkansas
    CR 84-167
    683 S.W.2d 606
    Supreme Court of Arkansas
    Opinion delivered February 4, 1985

      John W. Anchor, for appellant Jackson.

      William R. Simpson, Jr., Public Defender, by: Donald Campbell, Deputy Public Defender, for appellant Austin.

      Steve Clark, Att’y Gen., by: Jack Gillian, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Two separate appeals are presented in this case. One concerns a defendant’s right to testify in his own behalf and the other questions the admissibility of a confession.

Both defendants were convicted of rape stemming from the same incident and each received a sentence of 40 years imprisonment. This appeal from that verdict is before this court under Sup. Ct. R. 29(1 )(b). Because unrelated issues are raised by the two appeals, we will discuss them separately.

Louis Charles Jackson, one of the appellants, argues that the trial court violated his constitutional rights by prejudicially limiting and infringing upon his right to testify in his own defense. The victim testified that an ice pick was held on her by appellant Austin while appellant Jackson raped her. Jackson’s defense was that the victim is a prostitute who consented to the sexual act.

The relevant testimony to his appeal is as follows:

QUESTION:
Now I want you to tell these folks in your own words what happened out there the night you were at Mary — That apartment. . .
ANSWER:
Yes, we went there once well, what she is trying to say is a accident. We was coming from Highland Court late one Friday and we know Mary her sister, you know, the young lady’s sister. All right. And we stopped over to her crib, you know, to see whether her sister at home. . . .We was talking you know, all of us ... And the young lady okay, as far as you know her benefit that she didn’t have no job or nothing like this here and we all got to talking, you know, about how she keeping up her bills and everything to her crib, you know. And her mens, you know, all her mens, you know, give her money. (Objection)
QUESTION:
Louis, just tell us — Don’t tell us about anything that was said about anybody else. Just what you, what happened to you that night out there. All right?
ANSWER:
Okay. I am trying.
QUESTION:
If I stop you you shut up you hear?
ANSWER:
Yeah. Well, okay. Well skip that. Well anyway, you know, we, you know, got to talking like I said .... So Matthew he said he weren’t go — He wanted to talk to the lady about, you know, making some money. Well, in other words I hate to stop but you know what I am saying, you know, he was going to talk to her about some money and everything. And he went in the bedroom and he got to talking to the lady about some money, you know, and she said, well, you know, yeah, because she needed some money and everything .... And so well, he didn’t mess with the lady. He said well, why don’t you just go ahead on and give my stepson [Jackson] some, you know, just like that. . . . I had sex with the girl, you know, and everything and we got ready to leave and the young lady, you know, she come out the house and she started raising all kind of sand about twenty-five dollars. And the next thing we know we were picked up, you know-, for a rape charge, you know. That’s about all the way it was, you know, so in other words I can’t do nothing but just tell it like it was, you know, as far as all this here, you know, stuff about a ice pick the only way I only knowed about that was when I was in jail ’cause her and her sister and another dude like she said they really had took his money and stuff from him a week before this here happened.
COURT:
Approach.
MR. ACHOR:
Judge, I don’t think that is covered by the Statute.
COURT:
That’s not what it is covered by.
PROSECUTOR:
Your Honor, first of all the same objection I have made before.
COURT:
Yes.
PROSECUTOR:
This is absolutely inflammatory, immaterial, irrelevant and besides all that can only be founded on hearsay if it were true.
COURT:
Well, I am going to sustain the objection.
QUESTION:
Did you think she willing to have sex with you;
ANSWER:
Yes, she was willing to have sex. Only thing I can say is she was just trying to make twenty-five dollars and we didn’t give her twenty-five dollars and she just got mad, you know, just as simple as that.

Appellant, Jackson, bases his appeal on the fact that a criminal defendant has a constitutionally protected right to present a defense and to testify in his own defense. The appellant argues that this right supersedes evidentiary rules, such as hearsay, citing two United States Supreme Court cases, Chambers v. Mississippi, 410 U.S. 284 (1973) and Davis v. Alaska 415 U.S. 308 (1974).

For the purposes of this appeal, appellant Jackson is not challenging the first objected to testimony, rather he argues that the testimony about the ice pick was admissible. In support of this argument, he claims that the statement was not hearsay and that its exclusion violated his superior constitutional right to present his defense. These arguments are without merit.

From the record we cannot determine the exact grounds for the objection, nor the grounds for the exclusion of the evidence by the trial court. We will uphold the exclusion, however, even if it was for the wrong reason, if the ruling was correct. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981).

Arkansas’s rape shield law, Ark. Stat. Ann. § 41-1810.1 (Repl. 1977) provides in pertinent part:

In any criminal prosecution under Arkansas Statutes Annotated 41-1803 through 41-1810 . . . opinion evidence, reputation evidence, or evidence of specific instances of the victim’s prior sexual conduct with the defendant or any other person is not admissible by the defendant, either through direct examination of any defense witness or through cross-examination of the victim or other prosecution witness, to attack the credibility of the victim, to prove consent or any other defense, or for any other purpose.

Appellant Jackson maintains that the ice pick statement represented the victim’s admission that she had participated in what amounted to a robbery of another man. he abstracted the earlier testimony that “her mens give her money” becauseitwas “essential to an understanding of the next exchange.” Presumably then, the statement about the robbery was also introduced to somehow demonstrate that the victim was a prostitute and therefore consented to the sexual act. If, in fact, this statement was to be used to prove consent, § 41-1810.1 clearly prohibits the use of such testimony for that purpose. If the statement was offered to prove robbery of another person by the victim, it was inadmissible because it was not relevant.

The statutes following § 41-1810.1 set out a procedure whereby a defendant can introduce evidence of a victim’s prior sexual conduct. The evidence is admissible if its relevancy is proved through the procedure set out in the statutes. § 41-1810.2. Under the rules provided, a written motion must be filed by the defendant stating the relevant evidence being offered and the purpose for which the evidence is believed relevant. § 41-1810.2(a). A hearing is held in camera. § 41-1810.2(b). The court then determines if the offered proof is relevant to the fact in issue, and if its probative value outweighs'its inflammatory or prejudicial nature. Id. The defendant or his attorney is subject to sanctions for failure to file such a motion if a willful attempt is made to make any reference to the victim’s prior sexual conduct in the presence of the jury. § 41-1810.4.

Here, the record reflects that no such motion was filed, not only was the proper procedure not followed, there was no proffer of the type of evidence the appellant was trying to present. The failure to proffer evidence so this court can determine if prejudice results from its exclusion precludes review of the evidence on appeal. Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978); Sterling v. State, 267 Ark. 208, 590 S.W.2d 254(1979).

From the statements made during the trial, the objection was apparently sustained by the trial court as hearsay. The appellant argues that it is not hearsay since it falls within an exception allowing admissions by party opponents if “[t]he statement is offered against a party and is (i) his own statement, in either his individual or a representative capacity.” Unif. R. Evid. 801(d)(2)(i). Here, the statement made by appellant Jackson about the robbery was so unintelligible that, without a further proffer of proof, we cannot determine on review if the statement was in fact that of a party opponent.

The appellant Jackson’s argument that he has a superior constitutional right to present his defense is also without merit. Davis and Chambers, supra, are inapplicable to this situation for a number of reasons. First, the defendants in the two Supreme Court cases were precluded by the trial court’s ruling from pursuing a defense. Here, appellant Jackson offered quite a bit of testimony to the effect that the victim was willing to take twenty-five dollars for sex and that she did not complain of rape until the two appellants failed to pay her. Secondly, in both Davis and Chambers, the defendants attempted, through pretrial proceedings, to introduce the evidence. As we have already pointed out, appellant Jackson failed to follow the precedures set out in § 41-1810.1 et seq.

There was also no guarantee of the reliability of the appellant Jackson’s testimony as was present in Chambers. Since we cannot determine from the record whom the appellant Jackson was quoting, we cannot say the statement was trustworthy.

The trial court correctly excluded the testimony.

The second appellant, Matthew Austin, challenges the voluntariness of his confession. He argues that his confession was improperly admitted because there was insufficient evidence that he knowingly and voluntarily waived his fifth amendment rights.

On appeal, this court makes an independent determination of the voluntariness of a confession, but we do not set aside the trial judge’s finding unless it is clearly against the preponderance of the evidence. Chisum v. State, 273 Ark. 1, 616 S.W.2d 728 (1981). The burden is on the state to show that the statement was made voluntarily, freely, and understandably, without hope of reward or fear of punishment. Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979). Conflicts in the testimony as to voluntariness are for the trial court to resolve. Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983).

Some of the factors considered in determining the question of voluntariness include youth or age of the accused, lack of education, low intelligence, lack of advice as to constitutional rights, length of detention, repeated and prolonged questioning, and the use of physical punishment. Perkins v. State, 258 Ark. 201, 523 S.W.2d 191 (1975).

Applying these factors to the appellant, the facts reveal that the appellant is 35; he has had 1!4 years of college education; and he was advised of his constitutional rights at 6:15 p.m. and at 7:30 p.m. he signed a confession.

As to the length of detention, the appellant testified that he was arrested sometime after noon. The detective who interrogated him testified the appellant was brought to the police station at 6:00 p.m. The credibility of the witnesses was for the trial judge to determine, but a seven hour detention, without other factors, is not so long as to raise a question about the voluntariness of the confession. There was no evidence of repeated and prolonged questioning.

The detectives who took the appellant’s statement testified that the appellant was left alone in an interrogation room for one hour and 15 minutes while they questioned the other defendant, Louis Jackson. No questioning took place during that time period.

The appellant does argue that physical punishment was used. He stated during the trial that he was hit over the head with a telephone book by a person he did not see while he was in the interrogation room, and thereby forced to sign the statement confessing to the crime. The detectives who interrogated the appellant testified that they never saw anyone hit the appellant and that no one else was in the room. This conflict was for the trial judge to resolve since he was in a better position to determine the credibility of the witnesses.

The other facts alleged by the appellant were that he had smoked two marij uana cigarettes earlier in the day and was “high” when he made the confession. The officers testified however that he did not appear to be high or intoxicated. We have held that where, as here, the defendant’s testimony and that of the police are in conflict it is for the trial judge to resolve. Lockett v. State, 275 Ark. 338, 629 S.W.2d 302 (1982).

The appellant also argues that even though the detectives advised him of his rights one hour and 15 minutes before he confessed, he is unable to retain information for any length of time and may therefore have forgotten what his constitutional rights were. This argument is without merit.

The appellant’s final contention is that the State failed to call the arresting officers as witnesses in violation of the requirement that the state produce all witnesses involved to prove the voluntariness of the statement. The acts complained of by the appellant took place during interrogation and not during arrest. The fact that the arresting officers did not testify has no bearing on the issues raised in this appeal.

The confession was properly admitted.

Affirmed.


author: George Rose Smith, Justice.

text:
    FROLIC FOOTWEAR, INC v. STATE of Arkansas
    CR 84-216
    685 S.W.2d 611
    Supreme Court of Arkansas
    Opinion delivered February 4, 1985

      Barrett, Wheatley, Smith & Deacon, by: J.C. Deacon, for petitioner.

      Steve Clark, Att’y Gen., by: E. Jeffery Story, Asst. Att’y Gen., for respondent.
   George Rose Smith, Justice.

Frolic Footwear, Inc., asks us to set aside a $100 fine for contempt of court.

At the trial of a civil case in the Craighead Circuit Court a juror asked to be excused because she would suffer a hardship if forced to accept a juror’s daily fee of $10 instead of her wages as an employee of the petitioner. Act 425 of 1983 provides in part: “No employer shall subject an employee to discharge, loss of sick leave, loss of vacation time, or any other form of penalty on account of his or her absence from employment be reason of jury duty.” Ark. Stat. Ann. § 39-103 (Supp. 1983). The presiding judge, relying on the act, assured the juror that she would suffer no net loss as a result of her service. The juror was accepted and served for three days.

This contempt proceeding arose as a result of the juror’s application to Frolic Footwear for her net loss in pay during the three days. The company investigated the question and decided that it was not legally required to pay an employee during her abscence on jury duty. Judge Pearson then cited the company to show cause why it should not be punished for criminal contempt of court. At the ensuing hearing the company’s counsel called the court’s attention to the legislative history of Act 425. As introduced, the bill contained three additional words, which we have italicized, in the clause quoted above and in another similar clause: “No employer shall subject an employee to discharge, loss of pay, loss of sick leave,” etc. In the course of passing the bill, the legislature amended it to strike out the words “loss of pay” in both places. House Journal, 1983, Vol. 3, p. 2198. Judge Pearson had not been aware of that legislative history, but he decided that the reference to loss of pay was superfluous, because that loss would be included in the accompany general language, “or any other form of penalty.” He fined Frolic Footwear $100 for contempt. After timely notice of appeal the record was lodged in the Court of Appeals, which transferred the case to us as presenting an issue of statutory construction. Rule 29 (1) (c). Counsel have styled the case as a petition for certiorari, that being our traditional method of reviewing a conviction for contempt.

We cannot agree with the trial court’s decision. Our basic rule of statutory construction is to'give effect to the intention of the legislature. Since the legislators specifically deleted the words, “loss of pay,” we find it impossible to believe that they really meant for that deletion to be meaningless. In fact, in a practically identical case, which was not called to the trial judge’s attention, we so held. Moorman v. Taylor, 227 Ark. 180, 297 S.W.2d 103 (1957). That case governs this one.

In closing, we add a word for the future. Our fixed practice of reviewing contempt cases by certiorari is an anomaly now that Rule 3 of our Rules of Appellate Procedure declares that the mode of bringing up a judgment, decree, or order for review “shall be by appeal.” Our certiorari procedure crept into the law in a series of contempt cases spanning 100 years. In 1854 we refused to review an appeal from a conviction for criminal contempt, because the statutes did not provide for such an appeal. We said, however, that it was not to be understood that no remedy existed. Cossart v. State, 14 Ark. 538. In 1880 we reviewed, without comment, a contempt case brought up by certiorari. Harrison v. State, 35 Ark. 458. In 1889 we held that since there was no statute limiting the time for issuing certiorari in contempt cases, the time for appeal would be adopted by analogy. Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559. In 1903 review by certiorari was recognized as the proper remedy. Ex parte Davies, 73 Ark. 358, 84 S.W. 633. In 1918 a contempt case was brought up by appeal, but we treated it as being on certiorari and affirmed the decree. Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901. In 1950 we decided that although the review was by certiorari, we would review the evidence just as we would an appeal in any criminal case. Blackard v. State, 217 Ark. 661, 232 S.W.2d 977. Our cases have gradually reached the point at which in contempt cases there is no difference except in name between review by certiorari and review by appeal. We now announce, as we did a few years ago with respect to review by certiorari in habeas corpus cases involving child custody: "Henceforth we shall call these proceedings by their true name, appeals, and shall regard them as being governed by the statutes [and rules] pertaining to appeals.” Faulks v. Walker, 224 Ark. 639, 275 S.W.2d 873.(1955).

Reversed.


author: John I. Purtle, Justice.

text:
    C. Wesley WOODCOCK v. FIRST COMMERCIAL BANK
    84-199
    683 S.W.2d 605
    Supreme Court of Arkansas
    Opinion delivered February 4, 1985

      Richard J. Orintas, for appellants.

      Friday, Eldredge ir Clark, by: Meredith P. Catlett, appellee.
   John I. Purtle, Justice.

The trial court held that the liability of a bank, on failure to timely answer a writ of garnishment, was limited by the provisions of Ark. Stat. Ann. § 31-507 (Repl. 1962) and that the foregoing statute limited liability to an amount not exceeding that which the bank would have been liable for up until the time of the answer. We think the trial court properly interpreted the statute and appellants’ arguments for reversal must fail.

A judgment creditor of a bank depositor served the bank with writs of garnishment on September 12 and 27, 1983. The second writ was served before an answer had been filed by the bank. The bank filed a single answer on October 6, 1983. This was timely for the second writ but tardy for the first one. The bank tendered the sum of $121.58 with its answer. By stipulation of the parties, this would have been the maximum amount of appellee’s liability had the answers been timely filed. The trial court interpreted the statute to limit a bank’s liability to the funds or property on hand up until the answer was filed even though the answer was untimely.

The question presented on appeal is the construction of Ark. Stat. Ann. § 31-507. We do not find, nor'have we been cited, any case previously construing this statute although it has been a law since 1913. Acts 1913, No. 113, as amended by Acts of 1923, No. 627. Prior to the separate legislation favoring the banks, a tardy answer dictated judgment against the garnishee for the amount of the plaintiff’s judgment against the original defendant. Ark. Stat. Ann. §31-512 (Acts of 1889, No. 115) (Repl. 1962).

The primary rule in the construction of statutes is to ascertain and give effect to the legislative intent. It is our duty so far as practicable to reconcile the different provisions of a statute to make them consistent, harmonious and sensible. Shinn v. Heath, 259 Ark. 577, 535 S.W.2d 57 (1976). The reason, spirit and intended purpose of the Acts of the General Assembly are basic guideposts in statutory construction. Berry v. Gordon, 237 Ark. 547, 376 S.W.2d 279 (1964). The first thing we do in construing a statute is to look at the language of the statute and give it its ordinary meaning. Hicks v. Arkansas State Medical Bd., 260 Ark. 31, 537 S.W.2d 794 (1976). It is our duty to give effect to the true intent of the General Assembly even though such intent has not been clearly expressed by the language employed. Steele v. Murphy, 279 Ark. 235, 650 S.W.2d 573 (1983).

Ark. Stat. Ann. 31-507 reads in part as follows:

If any garnishee, being a bank, savings bank, or trust company domiciled in this state . . . shall neglect to answer on or before such return day the said writ or any interrogatories which have been exhibited against it, the court or j ustice before whom such matter is pending shall enter judgment in general terms against such garnishee, and such general judgment shall be deemed to be for costs of the garnishment and for an amount not exceeding the full amount specified in the plaintiff’s judgment against the original defendant and also not exceeding the amount or value in which at the time when served and thereafter up to and including said return day such garnishee was indebted, or had in its hands or possession goods, chattels, moneys, credits and effects belonging to said original defendant ....

The critical language in the foregoing statute is, “for an amount not exceeding the full amount specified in the plaintiff’s judgment against the original defendant and also not exceeding the amount or value which at the time when served and thereafter up to and including said return day such garnishee was indebted, or had in its hands or possession goods . . . belonging to said original defendant.” We think the plain and ordinary meaning of the language in the foregoing statute was clearly intended to limit the amount of recovery against a garnishee bank to the amount which the bank owed the debtor up until the time the bank answered.

Affirmed.


text:
    Mark Christian HENDERSON v. STATE of Arkansas
    CR 84-153
    684 S.W.2d 231
    Supreme Court of Arkansas
    Opinion delivered February 4, 1985

      Philip M. Clay and James C. Graves, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of capital felony murder and sentenced to life without parole. He presents four arguments in his appeal: I) the trial court erred in failing to grant appellant’s motion for a new trial because a witness was allowed to testify in violation of the rule; II) the court erred in refusing to give appellant’s requested non-AMCI instruction on corroborating evidence; III) it was error not to grant appellant’s motion for a directed verdict because the evidence did not support a finding of robbery; and IV) it was error to deny a motion in limine to prevent testimony that the victims’ child was in the vehicle where the homicide occurred. We find that the court was correct in each instance and affirm the case.

Steve and Diane Francis were found shot to death on January 30,1982. Their infant child was found unharmed in the floor of the automobile where the bodies of the Francises were found. Four cents was the total amount of money found on the victims. Appellant and Jeff Brown were charged with felony murder based upon an allegation that the Francises were murdered in the course of a robbery.

Johnny Gould, a deputy sheriff, was listed as a prosecution witness and was present at the beginning of the trial. He was “knocked off” the list by the prosecutor in order to allow him to attend to other duties. He came back into the courtroom while one or two defense witnesses testified or had their depositions read to the jury. Gould was called as a rebuttal witness and testified on matters pertaining to the jail records. Specifically, the records indicated that the appellant and Jeff Brown were not at the jail at the same time.

I

Appellant’s first allegation is that prejudicial error resulted when the trial court rejected his motion for a new trial based upon the fact that officer Gould was allowed to testify in violation of the sequestration rule on witnesses. The error was first raised in the motion for a new trial and was therefore not timely. Failure to object at the time the evidence is offered amounts to a waiver. Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980). In finding no prejudice of a substantial right in the circumstances of this case we note that the testimony of witness Gould could have been presented by another custodian of the records and was in no manner based upon the testimony he may have heard upon returning to the courtroom. Additionally, motions for new trials are governed by Ark. Stat. Ann. § 43-2203 (Repl. 1977), and the ground alleged here does not seem to meet the requirements of the statute.

II

Although appellant’s requested instruction concerning the sufficiency of corroborating evidence may have been correct, it was not error to refuse to give it if the other instructions given covered the issue. Wallace v. State, 270 Ark. 17, 603 S.W.2d 399 (1980). Non-AMCI instructions should be given only when the trial judge finds that the AMCI instruction does not state the law or AMCI does not contain a needed instruction on a subject. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983). AMCI instructions on the presumption of innocence, reasonable doubt, circumstantial evidence, and accomplice testimony, which specifically requires corroboration, were given. We find that the instructions given were sufficient and it was not error to reject the proffered non-AMCI instructions.

III

The third argument for reversal is that the corroborating evidence of a robbery of the victims is insufficient. On the first appeal of this case we held the evidence was sufficient to support the conviction although we reversed on other grounds. We consider whether the law of the case is controlling on the issue of sufficiency of the evidence to support the conviction. Decisions of the appellate court generally become the law of the case on retrial. The law of the case applied to admissibility of evidence when the evidence is not materially different from that previously before the court. Upton v. State, 275 Ark. 424, 516 S.W.2d 904 (1974). The law of the case precludes the appellant from assigning as error arguments decided on the first appeal. Mode v. State, 234 Ark. 46, 350 S.W.2d 675 (1961). We consider all alleged errors, even if the law of the case prevails. We consider all alleged errors in felony cases whether they are argued in the brief or not. Mode, supra. A purpose of such rule is to prevent the appellant from saving a point on the first appeal in order to have a second appeal on the same facts.

The law of the case is not an inflexible doctrine. For example, when the law has changed between trials the correct law will be applied to the second trial and appeal. Washington v. State, 278 Ark. 5, 643 S.W.2d 255 (1982). The doctrine does not absolutely preclude correction of error. Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979). The logic and reasons for holding the law of the case controlling would not seem to apply where competent evidence presented at a second trial was materially different from that presented at the first trial. For example newly discovered evidence could cause us to reconsider the sufficiency of the evidence to support a conviction. However, in the present case the evidence presented at the second trial was not materially different from that at the first and the doctrine is applicable. Even if we were to reconsider the sufficiency of the evidence we would hold it is sufficient to support the convictions.

IV

A motion in limine was made to preclude evidence of the victims’ child being found in the vehicle with the parents’ bodies. The court correctly overruled the motion. In Russell and Davis v. State, 262 Ark. 447, 559 S. W.2d 7 (1977), we held that separate and isolated crimes or facts may be shown to fully illustrate the circumstances connected with the charge being tried. When acts are intermingled and contemporaneous with one another, they may be proven as a part of the whole criminal scheme. Russell and Davis v. State, supra; Thomas v. State, 273 Ark. 50, 615 S.W.2d 361 (1981). Evidence that appellant attempted to shoot the baby is an integral and interwoven part of the criminal scheme and tended to show motive or intent. Unif. R. Evid. 404 (b). A limiting instruction was not requested.

Pursuant to Ark. Sup. Ct. R. 11 (f), we have examined the record for overruled objections and motions and find none which were prejudicial to the appellant.

Affirmed.


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

text:
    Buzz LASSITER, Larry SEABOLT and Jimmy BARRENTINE v. Basil R. KESTERSON and the ALCOHOLIC BEVERAGE CONTROL BOARD
    84-213
    683 S.W.2d 613
    Supreme Court of Arkansas
    Opinion delivered February 4, 1985

      Lance L. Hanshaw, for appellants.

      Treeca J. Dyer, for appellees.
   Robert H. Dudley, Justice.

Appellee, Basil Kesterson, filed an application with the Alcoholic Beverage Control Administration for an on premises consumption mixed drink permit for a private club to be located in Grannis. Grannis is in Polk County, which is “dry”. The Director of the administration denied the application but, on appeal, the Board reversed and granted the permit. The circuit court affirmed. We reverse and remand with directions to deny the permit. Jurisdiction of this appeal is in this Court pursuant to Rule 29(1 )(c) since it involves the interpretation and construction of the Private Club Act.

Appellant’s principal argument is that the Alcoholic Beverage Control Board erred in its interpretation of the Private Club Act, Ark. Stat. Ann. Title 48, Chapter 14. The argument is meritorious.

A private club which may obtain a permit is defined as a non-profit organization consisting of at least 100 regular dues paying members and being in existence for some common purpose other than the consumption of alcoholic beverages. It must own or lease space in a building, and it must have been in existence for at least one year before applying for the permit. Ark. Stat. Ann. § 48-1402 (j) (Repl. 1977).

In this case the applicant was not an organization with at least 100 dues paying members which had been in existence for at least one year. Instead, appellee Kesterson had obtained a two year old charter from another county, amended it to change the address, and sold prospective memberships with no definite immediate purpose other than the consumption of alcoholic beverages. The applicant did not comply with the mandatory language of the statute, and the Board misconstrued the statute in finding compliance.

Further, the applicant proposed to obtain facilities after the permit was issued. Again, the mandatory language of the statute was not followed. The statute mandates that the applicant own or lease its facilities for at least one year before application.

Reversed and remanded with directions to deny the permit.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. At the hearing held on August 18, 1982, the Commissioner stated: “He meets all the qualifications.” The petition for the permit was supported by over 500 signatures. Among the supporters were the mayor and town council of Grannis, the chief of police for the town of Grannis, a former prosecuting attorney and the local superintendent of schools. Further testimony revealed there were about 375 registered members.

The proposed Country Club was to have started off with a restaurant and bar. A golf course and swimming pool, large screen T.V. and video games were to be added. All of these things may be in existence at this time. It was testified that there was not another similar establishment within 30 miles of this club.

The applicant appears to be an outstanding citizen. He has served on the City Council, volunteer fire department and health clinic board. The ABC Board found he was qualified for a license and the club met the requirements of the law. Everything being in order, the Board issued the license. They heard the facts and are in a position to judge the credibility of the witnesses and the weight of the evidence.

The standard of review, by the Circuit Court and this court, for decisions by the ABC Board is whether they are supported by substantial evidence. Arkansas Real Estate Commission v. Harrison, 266 Ark. 339, 585 S.W.2d 34 (1979). There is substantial evidence in this case to support the decision of the ABC Board and it should be affirmed. So long as the state allows private clubs in dry counties to dispense alcoholic beverages, all segments should be treated the same. My personal opinion would be to revoke all such permits. However, that is not the law and I have no right to try to change it to coincide with my personal views.


author: Robert H. Dudley, Justice.

text:
    Ernest MAXWELL, Jr. v. STATE of Arkansas
    CR 84-132
    683 S.W.2d 908
    Supreme Court of Arkansas
    Opinion delivered February 4, 1985

      Mobley ir Smith, by: William F. Smith, for appellant.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

The appellant, Ernest Maxwell, Jr., was found guilty of the first degree murder of Carol Conn and was sentenced to life imprisonment. We affirm. An earlier conviction for the same offense was reversed by this Court in Maxwell, Jr. v. State, 279 ark. 423, 652 S.W.2d 31 (1983). Jurisdiction of this subsequent appeal of a life sentence is in this Court under Rules 29( 1) (b) and (j).

On the morning of June 25, 1981, the badly battered body of Carol Conn, age 20, clothed in a T-shirt, blue jeans, and tennis shoes, was found near the Plummerville exit from Interstate 40, in Conway County. The clothed body was taken to the state medical examiner for an autopsy. That afternoon the police questioned appellant, age 43, with whom the victim had lived for about four weeks in his home near Atkins, in Pope County. Appellant told the police that he last saw the victim at this home at about five o’clock the preceding evening. He went to sleep then. When he awoke about eight, Carol was gone. He went into Atkins about eleven to ask his brother if he had seen Carol; the next morning he asked about her elsewhere. He told the officers that during the four weeks he and the victim had been living together he had hit her only once, about two weeks earlier with his open hand, but he had never seen any bruises on her.

The state medical examiner, Dr. Malak, performed the autopsy, which at his request was witnessed by Berwin Monroe, an employee of the Crime Laboratory having extensive training and experience in criminal investigation. Dr. Malak testified, with the support of photographs he had taken, that the victim’s body was bruised from head to foot, front and back. Some of the bruises had been inflicted about ten days before her death, others about three days before death, and others still later. The skull had been fractured, but the actual cause of death was a heavy blow to the area of the umbilicus (navel), which burst her intestines and caused her death within not more than ten minutes. Louise Kiburn, who worked at the Sav-A-Sum Market in Atkins, saw appellant and Carol in the store a few days before Carol’s body was found. At that time Carol was horribly bruised and swollen. Appellant told Kiburn that Carol had fallen down. The appellant did not testify at this trial.

For his first assignment of error appellant contends that (a) the trial court erred by not ruling on the prosecutor’s motion in limine before the time of the opening statement and (b) further erred by later granting the motion. The motion, filed immediately prior to trial asked that the appellant, his witnesses and his attorneys be prohibited from referring to the demotion of Berwin Monroe by the State Crime Laboratory Director. The court did not rule on the motion until immediately before Monroe was to take the witness stand. Since the motion was granted, the appellant has not shown any prejudice, or that the trial judge abused his considerable discretion in waiting to rule on the motion. The judge simply allowed the trial to take its natural course to the point where the evidence could be introduced.

Similarly, we find no error in the ruling granting the motion. The only evidence concerning the demotion came from Monroe, who testified that the demotion was due entirely to a personality conflict with the Director of the Crime Laboratory and was not related in any manner to his functions as a criminalist. On the limited evidence in the record we cannot say the trial judge abused his discretion. The demotion, based upon a personality conflict, does not demonstrate a lack of competency, or constitute a showing of bias, or any type of inconsistency or contradiction. In short, it simply does not impeach the credibility of the witness in his capacity to scientifically examine minute criminal evidence. The trial judge commented that any probative value in allowing testimony about the demotion was outweighed by danger of unfair prejudice. See Ark. Stat. Ann. 28-1001, Rule 403, Ark. Unif. Rules of Evid. We note that the judge commented that the appellant would be allowed to inquire into any specific instances of conduct which might cast doubt upon the credibility of Monroe.

Appellant next contends that the trial judge committed error by refusing to grant a mistrial as a result of the closing argument by the prosecuting attorney.

We have not been furnished a transcript of the closing argument because the trial judge did not require the court reporter to make a stenographicrecord of the argument. It is not error if the trial court does not require the court reporter to make a stenographic record of argument when counsel fails to request it. Ark. Stat. Ann. § 22-352 (Repl. 1962); McCain v. State, 132 Ark. 497, 201 S.W. 840 (1918).

The record reflects only the request for a mistrial after the opening of the state’s closing argument. The request for a mistrial was based upon an alleged inferential comment on the failure of the appellant to testify. The trial judge denied the request and stated that the statement was a comment upon the falsity of appellant’s statement to the police. Without a record, we must presume the trial judge was correct. Our presumption is buttressed by the trial court’s comment to the prosecutor just before the rebuttal phase of the state’s argument:

I noticed when Mr. Mobley [appellant’s attorney] indicated that he could put the Defendant on the stand for three weeks, I noticed your eyes somewhat perked up to the extent that you might think you could make reference to him not testifying. I want to head you off before you get anywhere near that.

The appellant contends that the trial court erred by refusing to allow him to ask, on cross-examination, if the sheriff had investigated the possibility that Henry L. Lucas or Otis Edward Toole committed the murder. According to the proffer, one of these men had been arrested in Florida and the other in Texas, and both have committed many murders. However, the proffer did not present any information which would have even remotely linked either man to this crime. The questions were conjectural and speculative. Questions on cross-examination should not be conjectural, speculative or argumentative. Dillard v. State, 260 Ark. 743, 752, 543 S.W.2d 925, 932 (1976).

The appellant next argues that the trial court allowed an expert witness, Berwin Monroe, to invade the province of the jury. Monroe’s testimony was proper. He explained to the jury that the presence of the particles on the bottom of the victim’s feet and on the soles of her tennis shoes showed that she could not have walked out of the house, either barefooted or wearing the tennis shoes nor could she have walked for even a slight distance on grass, concrete or asphalt without disturbing the particles on her feet or on the shoes. The testimony did not tell the jury which result to reach, rather it gave the jury appreciable help in reaching the result. See Gramling v. Jennings, 274 Ark. 346, 348, 625 S.W.2d 463, 464 (1981).

There are no other rulings, adverse to appellant and not raised on appeal, which constitute reversible error. Rule 11 (f). Affirmed.


author: Per Curiam.

text:
    Edward Charles PICKENS v. STATE of Arkansas
    CR 76-186
    683 S.W.2d 614
    Supreme Court of Arkansas
    Opinion delivered February 4, 1985

      Jeff Rosenzweig, for petitioner.

      Steve Clark, Att’y Gen., by: Michael E. Wheeler, Asst. Att’y Gen., for appellee.
   Per Curiam.

Petitioner Edward Charles Pickens was found guilty of capital felony murder in 1976 and sentenced to death. We affirmed the conviction and sentence. Pickens State, 261 Ark. 756,551 S.W.2d 212 (1977); cert. denied 435 U.S. 909 (1978). We also denied petitioner’s petition for postconviction relief. Pickens v. State, CR 76-186 (November 3, 1981).

Petitioner filed a petition for writ of habeas corpus in federal district court which was denied. Pickens v. Lockhart, 542 F. Supp. 585 (1982). On appeal, the Eighth Circuit Court of Appeals found ineffective assistance of counsel in the penalty phase and remanded to the district court with instructions to vacate the death sentence and either reduce the sentence to life without parole or conduct a new sentencing procedure. Pickens v. Lockhart, 714 F. 2d 1455 (8th Cir. 1983). On the State’s motion, we reinvested the Circuit Court of Prairie County with jurisdiction to resentence the petitioner.

After voir dire of the jury panel had begun, one of the State’s witnesses at the original trial, Harold Goacher, informed the prosecutor that what he had said petitioner Pickens had done during the crime, Antonio Clark did, and what he said Clark did, petitioner had done. Petitioner moved for a hearing to place Mr. Goacher under oath to explore the matter but the trial court refused the request.

Petitioner has now filed a petition in this Court for writs of mandamus, certiorari and error coram nobis. We find no ground for granting any of the writs.

Petitioner seeks a writ of mandamus to compel the trial court to conduct a hearing on Mr. Goacher’s testimony. Mandamus is an extraordinary writ issued to require an inferior court to act when it has improperly failed or declined to do so. It is never applied to control the discretion of a trial court, nor can it be used to correct an erroneous exercise of discretion. State ex. rel. Purcell v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969). If petitioner concludes that the resentencing procedure has been rendered unfair by the failure to hold a hearing, his remedy is on appeal, not a mandamus action.

Citing our recent holding in Penn v. State, 282 Ark. 571, 670 S.W.2d 426 (1984), wherein we discussed error coram nobis as a remedy where there is newly discovered evidence, petitioner argues that he is entitled to an evidentiary hearing to determine if Goacher’s pronouncements warrant the granting of a new trial. Penn, however, concerns evidence discovered between the time for filing a motion for new trial has expired and the time the case is affirmed on appeal. In petitioner’s case, the guilt phase of his trial has been affirmed. The Eighth Circuit Court of Appeals ordered no new trial of that phase. We made it clear in Penn such information was not a basis for a new trial. According to our decision, such information must be presented in a clemency proceeding.

Furthermore, even if the petition for writ of error coram nobis were timely, the record does not indicate that there would be any difference in the outcome of the guilt phase. Mr. Goacher testified that both of the men he described as dark-skinned men (Clark and Pickens) did the shooting, although he did not separate their specific actions. Since Clark was also found guilty and received the death penalty, it cannot be said that the result of the guilt phase would have been different. If Goacher’s testimony would go to mitigation, it may be heard in the sentencing proceeding now in progress.

Finally, petitioner seeks a writ of certiorari to clarify jurisdiction and venue questions and to determine who should prosecute the case if a hearing is granted. Since we have addressed the issue of venue and jurisdiction in an earlier opinion, we decline to do so a second time. Pickens v. Circuit Court of Prairie County, et al, 283 Ark. 97, 671 S.W.2d 163, (1984). We also decline to decide who should be the prosecutor if the trial court elects to have a hearing. The trial judge may appoint a special prosecutor if he deems necessary.

Writs denied.


author: Per Curiam. John I. Purtle, Justice,

text:
    STATE of Arkansas v. Charles Ray ANDERSON, Jr.
    CR 84-215
    683 S.W.2d 897
    Supreme Court of Arkansas
    Opinion delivered February 4, 1985

      Steve Clark, Att’y Gen., by; Vélda P. West, Asst. Att’y Gen., for petitioner.
    No brief filed by respondent.
   Per Curiam.

Ordinarily, we only grant petitions for review of decisions by the Court of Appeals on the ground that the decision involves a legal principle of major importance when the party seeking review filed a motion for certiorari before the case was submitted to the Court of Appeals. Ark. Sup. Ct. R. 29 (6). No such motion was made by the state in this case, but we grant review for three reasons.

First, the Court of Appeals was divided on whether this case should have been referred to us. The case does concern a question of major importance: the changing law of search and seizure. We are responsible for making certain that law is understood and correctly applied in this state. Two recent United States Supreme Court cases change that law, and we must reconcile our decisions with those changes. United States v. Leon, _U.S__,104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); Massachusetts v. Sheppard,-U.S--, 104 S.Ct. 3424, 82 L.Ed.2d 73 (1984).

Second, the Court of Appeals had the problem of choosing whether to follow those decisions or our Rules of Criminal Procedure, which no doubt now need review.

Finally, as the petitioner points out, those United States Supreme Court decisions were not rendered until after the state filed its brief. At that point it was considered too late to ask the Court of Appeals to certify this case. In our judgment the state could not have anticipated the importance of the issue prior to the recent decisions.

Review granted.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. This petition for review has been accepted in spite of the fact that no motion for transfer was filed in the Court of Appeals pursuant to Ark. Sup. Ct. R. 29 (6). Rule 29 (6) states in part:

[N]o petition for review on the ground that the case involves an issue of significant public interest or a legal principle of major importance, as specified in subparagraph 4 (b) of this Rule, will be considered unless the party petitioning for review filed in the Court of Appeals, before the submission of the case to that court, a motion asking that the case be certified to the Supreme Court on that ground, with a certificate of counsel that the motion is filed in the good faith belief that the case should be so certified.

If this court intends to follow the lead of the Supreme Court of the United States in reevaluating the Fourth Amendment to the United States Constitution, it should wait for a proper case. Article 2, section 15 of the Constitution of Arkansas is an almost exact duplication of the Fourth Amendment to the Constitution of the United States and we are bound by oath to uphold it. There is nothing in either the United States Constitution or the Constitution of Arkansas which even hints at the idea that an illegal search and seizure is legal if the parties issuing and executing the warrant act in “good faith.” How many officials do you suppose are going to authorize or conduct a search and/or seizure in “bad faith?” None, of course, because now, if we adopt the reasoning in United States v. Leon, _U.S__, 104 S. Ct. 3405 (1984), all searches and seizures authorized and executed in good faith will be legal.

This case has been considered by the Court of Appeals and it, on its own volition, decided the case was not one to be certified to us on grounds that it was of significant public interest or concerned a legal principle of major importance. Whether we are bound by the decisions of the United States Supreme Court depends upon the case. We are not bound by the Leon opinion. “It has long been the settled rule that state courts, are not bound by the rules of procedure in federal courts on the question of the competency or incompetency of evidence. ” State v. Browning, 206 Ark. 791, 178 S.W.2d 77 (1944). In Browning we further stated: “We think this announced rule on the admissibility of evidence in search and seizure cases, which has always been followed in this state, should and does apply in the instant case.” Now that the shoe has shifted to the other foot, are we going to change the tune? If the rule has always been followed in this state it should not be changed now.

Fundamental fairness requires us to reject this petition. Simply put, the state is asking for a second appeal after losing one. This court has many times said that one fair appeal is all a party is entitled to. Are we going to change that too?

I would deny the petition.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Perry Dwayne RAY v. Ruby A. MURPHY
    84-198
    683 S.W.2d 916
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985
    [Rehearing denied March 18, 1985.]

      Sexton, Nolan, Robb ir Caddell, P.A., for appellant.

      Pryor, Robinson ¿r Barry, for appellee.
   George Rose Smith, Justice.

In this tort case, which comes to us under Rule 29(1 )(o), the only contention preserved by an objection below is that the court gave an instruction not relevant to the evidence. Inasmuch as the verdict in favor of the defendant, Mrs. Murphy, demonstrates that the error was harmless, we affirm the judgment.

The plaintiff, Perry Dwayne Ray, aged 25, was riding his motorcycle when he ran into the right side of Mrs. Murphy’s car as she was turning to her left in front of him at a street intersection in Fort Smith. She testified that she had a green arrow for her left turn; that the light would have been red for Ray as he came toward her; and that she saw him approaching and expected him to stop. Ray testified that he had a green light and expected Mrs. Murphy to yield.

The investigating officer testified without objection that Ray did not have the special driver’s license required for a motorcyclist or the required crash bars. Over the plaintiff’s obj ection the court instructed the j ury, in the format of AMI Civil 2d 601 (1974), that a violation of the statutes requiring a license and crash bars is evidence of negligence. The jury was otherwise properly instructed. The trial judge told the jury to put its findings on a printed form of verdict containing only the words, “We, the jury, find,” followed by blank lines. The jury completed the form to read: “We, The Jury, find that Mrs. Murphy is not guilty of negligence as charged.” The nine jurors who had signed the verdict were polled individually and affirmed the verdict. The court entered judgment for Mrs. Murphy.

The argument for reversal is that the challenged instruction should not have been given, because Ray’s failure to have the required license or crash bars was not a proximate cause of the accident. Perhaps so, but it is familiar law that the jury’s verdict may demonstrate that an error in the instructions was harmless. We quote from three of our many opinions on the point:

Billy Cates next contends that the trial court committed reversible error by the giving of an instruction on the standard of care for a contractor. A.M.I. Civil 2d 1204. There is no basis in the record for the instruction and it should not have been given. However, the verdict rendered the error harmless since the jury found against the appellees on the issue involved in the instruction. Cates v. Brown, 278 Ark. 242, 645 S.W. 2d 658 (1983).
But when the jury answered Interrogatory No. 2 as it did and found that Campbell 66 Express, Inc., “by its servants, agents and employees,” was not guilty of any negligence, then the verdict cancelled any error in the matter of the Comparative Negligence Instruction and rendered harmless the giving of the wrong Comparative Negligence Instruction. Sutton v. Nowlin & Sons Co., 232 Ark. 223, 335 S.W. 2d 292 (1960).
Irrespective of whether the instruction was erroneous it was harmless for the reason.both in finding for John Mosley, Jr., and John Mosley, Sr., the jury found that John Mosley, Sr., was not guilty of negligence. Payne v. Mosley, 204 Ark. 510, 162 S.W.2d 889 (1942).

The jury’s specific finding that Mrs. Murphy was not negligent conclusively exempts her from any possibility of liability to the plaintiff. If the trial court cannot rest its judgment upon such an explicit verdict, our procedure for instructing juries becomes futile.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree because I think the erroneous instruction was prejudicial. We do not know what impact it may have had on the jury. Unless there is a causal connection between the violation of a statute and the injury, the instruction should not be given. Riddell v. Little, 253 Ark. 686,488 S.W.2d 34 (1972). There was no such connection shown in this case. Abstract instructions tend to confuse and mislead the jury. 75 Am. Jur. 2d Trial § 645 (1974). Any error is presumed prejudicial unless the appellate court can say with assurance that it was harmless. Wallin v. Insurance Company of North America, 268 Ark. 847, 596 S.W.2d 716 (1980).

When an error is shown in an instruction which was given it is presumed prejudicial until the opposite is established. Safeway Stores, Inc. v. Gross, 240 Ark. 206, 398 S.W.2d 669 (1966). In Gross we stated: “In the case at bar, because of the general verdict it cannot be shown that the error was harmless; so, in line with our cited cases, we must presume that the error in the instruction was prejudicial; and for that reason the judgment is reversed and the cause remanded.”

The general verdict form presented to the jury gave them no guidance. Had the case been presented on interrogatories we would have been able to determine whether the error was harmless. The verdict simply stated: “We, The Jury, find that Mrs. Murphy is not guilty of negligence as charged.” The complaint charged Mrs. Murphy with all the negligence or 100%. In my opinion the jury may have meant to find she was not guilty of 100% of the negligence. To say the least, I cannot say with certainty that the instruction was harmless. It may have been and again it may not. I would remand for a new trial.


text:
    Robert O. BURSON v. Tom DAY
    84-217
    683 S.W.2d 917
    Supreme Court of Arkansas
    Opinion delivered February 11, 1985

      Atchley, Russell, Waldrop ir Hlavinka, by: Josh R. Morriss, III, for appellant.

      Eric W. Bishop, and Henry C. Morris, for appellee.
   George Rose Smith, Justice.

For about six months in 1981 the parties were partners in the construction of buildings. After that Burson brought this suit for an accounting and recovery of his share of the profits. The dispute was referred to a master, who based her report upon extensive testimony presented by the parties and their C.P.A.’s. The chancellor, slightly modifying the master’s figures, found that Burson’s 40% share of the profits was $27,670.23, for which he was given judgment after a deduction of the $7,800 he drew during the partnership. Burson was also awarded $400.80 as the residual value of tools on hand. He argues in this court that he should have received larger amounts, plus prejudgment interest. Our jurisdiction is under Rule 29 (1) (c).

Burson’s first three arguments involve questions of accounting. When the partnership was formed, Day already had a construction business of his own, which he continued. He alone contributed tools and other property to the partnership. Apparently by common acquiescence the financial records of the two businesses were not kept separately. This commingling of the records unquestionably made it difficult for anyone to make an accurate allocation of the profits as between the two concerns. The C.P.A.’s both recognized that profits could be determined in a number of ways, involving not merely an examination of the records but also the exercise of judgment in allocating costs of labor and materials, in fixing the percentage of completion as to construction work in progress, and in other matters. After studying the appellant’s abstract of the conflicting testimony, along with the briefs, we are firmly of the view that the appellant has not met his burden of showing that the chancellor’s award of profits was clearly erroneous.

A fourth argument is that the award to Burson for his share of the value of tools at the termination of the partnership should be raised from $400.80 to $1,260.98, because the master wrote: “The amount to be included in residual value of tools if determined to be an income item would be $3,152.46.” The statement of the condition, “if determined to be an income item,” undermines the appellant’s argument. Day testified that the master’s evaluation should not be included in partnership income, because Burson contributed no tools to the partnership, while Day already had “every tool that you could imagine to work with to do the projects.” He also said that the depreciation resulting from the use of his tools “used up” the value of the new tools that were acquired. On this point the weight of the evidence supports the chancellor.

Fifth, it is argued that the appellant is entitled to prejudgment interest, because the Uniform Partnership Act provides that when a partner retires and the business is continued, he shall receive the value of his interest in the partnership “with interest.” Ark. Stat. Ann. § 65-142 (Repl. 1980). The statute manifestly applies only when two or more remaining partners continue the business. An award of interest compensates the retiring partner for the continued use of his property. Here Burson contributed no property to the firm, and the partnership business was not continued by others. Burson’s share of the profits has been definitely determined only after this prolonged litigation. Since Day was not indebted to Burson for an ascertainable amount which Day could have paid before the chancellor’s final determination of the amount, prejudgment interest is not allowable. Loomis v. Loomis, 221 Ark. 743, 255 S.W. 2d 671 (1953).

The appellant’s final argument is that the record should be supplemented by accounting reports submitted to the master but not made a part of the record and not filed in this court until five days before the case was submitted for consideration on abstracts and briefs already filed. It is an appellant’s responsibility to see that the complete record is filed in a timely manner in this court. See Finley v. State, 281 Ark. 38, 661 S.W.2d 358 (1983); Davis v. C & M Tractor Co., 2 Ark. App. 150, 617 S.W.2d 382 (1981). Our practice does not allow the appellant to obtain time for a supplemental brief based on matters filed too late and, in this instance, not shown to be relevant to the issues.

Affirmed.