author: Lyle Brown, Justice. Conley Byrd, Justice,

text:
    John O. MAY v. STATE of Arkansas
    5796
    492 S.W. 2d 888
    Opinion delivered April 9, 1973
    [As modified on denial of rehearing April 30, 1973.]

      Jack L. Lessenberry, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Frank B. Newell, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

J. O. May appeals from a conviction on a charge of inducing an abortion. It was the theory of the State that at the request of Kaye and Allan Kuykendall, Bill McCord, Jr. contacted Teresa Barrett who he had reason to believe could get in touch with someone who would perform an abortion. Teresa was said to have contacted appellant and arranged for the abortion. Kaye Kuykendall testified that the illegal act was committed on October 9, 1970, which happened to be appellant’s birthday. Appellant’s defense was an alibi. He, along with corroborating witnesses, testified that appellant was in DeValls Bluff celebrating his birthday. Those are about all the facts that are necessary to an understanding of the issues on appeal. Such additional facts as are pertinent to an understanding of any of the issues will be subsequently recited.

We shall first treat appellant’s argument that our abortion statutes, Ark. Stat. Ann. §§ 41-303-310 (Supp. 1971) are unconstitutional in light of two recent decisions of the United States Supreme Court. Doe v. Bolton, Attorney General of Georgia, 93 S. Ct. 739, 35 L. Ed. 2d 201 (1973); Roe v. Wade, District Attorney of Dallas County, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). In both cases, parts of the abortion laws of the respective states were declared unconstitutional. In Roe, it was determined by the Court that a pregnant single woman had standing to attack the Texas statute; the plaintiffs in Doe were an indigent, married, pregnant Georgia citizen and certain licensed physicians, standing being conferred, so the Court held, on the latter through Epperson v. Arkansas, 393 U.S. 97 (1968). The most salient aspect of both cases (Roe and Doe) for the purposes of the appeal in the case at bar is that the decisions in/ both Roe arid Doc contemplate the per for mance-of'abortions only by licensed physicians.. In fact as to laymen, Roe makes the statement, in its summary under XI that a state “may proscribe any abortion by a person who is not a physician”. .Our Ark. Stat. Ann. § 41-303 in effect prohibits abortions by two classes of people, physicians and laymen. The effect of the Supreme Court holdings was to strike down the prohibition as against physicians during the period preceding approximately the end of the first trimester. The cited section can be left intact as to laymen; that was the effect of our holding in Borchert v. Scott, 248 Ark. 1041, 460 S.W. 2d 28 (1970), where we said: “If a statute attempts to accomplish two or more objects, and is void as to one, it may still be in every respect complete and valid as to the other”. An abortion case in point in this respect is Commonwealth v. Brunelle, 277 N.E. 2d 826 (Mass. 1971).

The appellant has no standing to personally attack the constitutionality of § 41-303 because it is not unconstitutional as applied to him. As applied to appellant, § 41-303 simply prohibits a layman from performing or inducing an abortion. As we have pointed out, the United States Supreme Court says in Doe and Roe that the states have a right to prohibit such activity by one other than a physician. In Brunelle, supra, the standing of the accused to attack the statute as unconstitutional was brought into question and his standing to make that attack was denied because Brunelle was not a licensed physician. The court said: “Only persons whose interests are affected by a statute may assert that it is unconstitutional”.

We are compelled to reverse and remand for new trial, principally because appellant was denied the right to attack the credibility of some of the State’s key witnesses on the grounds of certain acts of moral turpitude. For example, appellant sought to elicit from Mrs. Kuykendall the fact that she had sexual relations with another witness, Bill McCord, Jr., while she was married to Allan Kuykendall. (Mrs. Kuykendall admitted the act in her testimony in chambers). Appellant also sought to elicit on cross-examination of Bill McCord, Jr., a State witness, that McCord had been found in an alley suffering from the effects of drugs. On cross-examination the credibility of a witness may be impeached by showing acts of moral turpitude. Hale v. State, 252 Ark. 1040, 483 S.W. 2d 228 (1972); Heath v. State, 249 Ark. 217, 459 S.W. 2d 420 (1970). Still more in point are such cases as Garrard v. State, 113 Ark. 598, 167 S.W. 485 (1914), intercourse with other men; Rowe v. State, 155 Ark. 419, 244 S.W. 463 (1922), intercourse with others; Schooley v. State, 176 Ark. 895; 2 S.W. 2d 67 (1928) immoral acts.

Several other points for reversal are advanced. Some of those will not arise on retrial; others have no merit; and some present situations in which a timely record was not made.

Reversed and remanded.

Byrd, J., dissents in part.

Conley Byrd, Justice,

dissenting. I disagree with so much of the majority opinion that holds that appellant, a layman, has no standing to attack the constitutionality of our abortion Statute, Ark. Stat. Ann. § 41-303 (Supp. 1971). That statute provides:

“It shall be unlawful for any one to administer or prescribe any medicine or drugs to any woman with child, with the intent to produce an abortion; or premature delivery of any foetus before or after the period of quickening, or to produce or attempt to produce such abortion by any other means; and any person offending against the provisions of this Section shall be fined in any sum not to exceed one thousand dollars ($1,000.00), and imprisoned in the penitentiary not less than (1) nor more than [5] years.”

The Texas statute involved in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), provided:

“Ardele 1191. Abortion
“If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or intermally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By 'abortion’ is meant that the life of the fetus or embryo shall be destroyed in the woman’s womb or that a premature birth thereof be caused.”
“Article 1196. By medical advice
“Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.”

Justice Blackmun in delivering the majority opinion stated:

“Our conclusion that Art. 1196 is unconstitutional means, of course, that the Texas abortion statutes, as a unit, must fall. The exception of Art. 1196 cannot be stricken separately, for then the State is left with a statute proscribing all abortion procedures no matter how urgent the case.”

I can find nothing in Borchert v. Scott, 248 Ark. 1050-H, 460 S.W. 2d 28 (1970), to support the majority position here. There the issue was whether the act was severable and the matter was stated in this language:

“When this case was before us on direct appeal we held the Documentary Tax Stamp Act, being Act 239 of 1969, unconstitutional and void under Amendment 20 to the Constitution of Arkansas. Borchert v. Scott, et al, 248 Ark. 1041, 460 S.W. 2d 28 (1970). We have again considered the case on rehearing and have concluded that the Act is severable and that portions of it are constitutional and valid. In reappraising the intent of the legislature in enacting Act 239, we conclude that we cannot say the legislature would not have passed Act 239 without § 6 or subsections (b), (2) and (3) written. . . .”

Here, Ark. Stat. Ann. § 41-303 provides that, “any person offending against the provisions of this Section shall be fined in any sum not to exceed one thousand dollars ($1,000.00), and imprisoned in the penitentiary not less than (1) nor more than [5] years.” The first portion thereof makes it unlawful “for anyone ... to produce an abortion.” No exception is made for any physician and as pointed out in Roe v. Wade, supra, it appears to me that the statute, as a unit, must fall with its unconstitutionality.

Our statute as written makes no distinction as to the occupations of persons prohibited. Thus, it appears to me that appellant has a standing to complain that the statute is being unequally applied to him when it cannot be validly applied to other persons within the class that is prohibited.

For the reasons stated, I respectfully dissent to that portion of the opinion upholding the validity of the statute.


source: Caselaw Access Project

author: John A. Fogleman,

license: Public Domain

text:
    James ELLINGBURG v. STATE of Arkansas
    CR 73-11
    492 S.W. 2d 904
    Opinion delivered April 9, 1973

      Apellant, Pro Se.

      Jim Guy Tucker, Atty. Gen., by: Gene O’Daniel, Asst. Atty. Gen., for appellee.
   John A. Fogleman,

Justice. Appellant was arrested on the night of July 7, 1972, and charged on July 17, 1972, by information, with the crimes of burglary and larceny and, on September 11, 1972, with being a habitual criminal, by an amended information. The original information alleged that appellant did break and enter the home of his sister, Oneida Rogers, on July 7, 1972, and steal a Hiatachi Color Television, the value of which was in excess of $35.00. The amended information added the allegation that appellant had seven previous felony convictions, thus subjecting him to the habitual criminal statute. He was found guilty on September 18, 1972. Punishment was assessed at 31% years’ imprisonment, the maximum allowable under the habitual criminal act. Ark. Stat. Ann. §§ 43-2328, et seq. (Supp. 1971).

Consideration of this appeal has been considerably complicated by appellant’s refusal of the services of appointed counsel in abstracting and briefing the case. He has not only elected to file his own brief, but has insisted upon doing so. Consequently, the arguments in his brief are somewhat confused and greatly confusing. We have endeavored as best we could to determine just what arguments made by appellant are applicable to the points he asserts for reversal. He has stated his points relied upon as follows:

I. To best of appellant’s knowledge and belief, an affidavit of probable cause to arrest was not obtained prior to arrest as required by law.
II. That the bench warrant was defective on its face.
III. Unreasonable and unnecessary delay in arraignment.
IV. Sequester of amended information in No. 10,808 by the State.
V. Trial without arraignment on habitual criminal accusation.
VI. Use of prior invalid convictions in habitual criminal proceedings.
VII. Suppression of evidence by the prosecution favorable to appellant.
VIIII. Denied a fair and impartial jury trial.
IX. Inadequate psychiatric determination of competency.
X. Trial court prejudice, biased, and discriminating, and arbitrary towards appellant for causes shown in appellant’s argument hereinafter.

Although appellant assigns 10 points as error, numerous other contentions are raised. We find no reversible error. In the course of this opinion, we will find it necessary to treat appellant’s arguments advanced rather than his points for reversal as he has stated them, because of inartistic or inadequate statement of the points or because the arguments made are not really pertinent to the points under which they are advanced. We shall discuss the arguments as we understand them.

I.

Appellant’s contention that no affidavit for probable cause was obtained prior to arrest must fail because of the longstanding rule that neither an affidavit of probable cause nor a warrant need be obtained when an arrest is made pursuant to Ark. Stat. Ann. §43-403 (Repl. 1964). That section provides, in essence, that a warrantless arrest may be made by a police officer when there are reasonable grounds to believe the person arrested has committed a felony. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458; Henson v. State, 239 Ark. 727, 393 S.W. 2d 856. We find ample evidence in the record to support a finding that there were reasonable grounds. The arresting officer testified about the condition of the complainant’s home, her statements that the television set had been stolen, a pawn ticket representing the television set, which had been issued to James Ellingburg, and which had been acquired by another officer, and identity of the serial number of the television set at the pawn shop with that of the complainant’s. The fact that appellant was acquitted of the crime of burglary is immaterial as is the fact that another officer was involved in the pawn shop investigation. In Jones v. State, supra, we stated:

Probable cause is to be evaluated by the courts on the basis of the collective information of the police (which may consist partially of hearsay) rather than that of only the officer who performs the act of arresting. Smith v. United States, 358 F. 2d 833 (D.C. 1966), cert. denied, 386 U.S. 1008. See also State v. Fioravanti, 46 N.J. 109, 215 A. 2d 16 (1965); United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684. Information coming to officers must rise above mere suspicion of criminal activity in order to constitute probable cause for an arrest, but it need not be tantamount to that degree of proof sufficient to sustain a conviction. Clay v. United States, 394 F. 2d 281 (8th Cir. 1968), cert. denied, 393 U.S. 926; Reed v. United States, 401 F. 2d 756 (8th Cir. 1968). See also Smith v. State, 241 Ark. 958, 411 S.W. 2d 510.

In connection with this point appellant also contends that error was committed because he was not afforded a preliminary hearing. Arkansas Statutes Annotated § 43-601 (Repl. 1964) provides for a preliminary examination when an arrest has been made without a warrant, but we have uniformly held this statute to be directory only and not mandatory. Mitchell v. Bishop, 248 Ark. 427, 452 S. W. 2d 340; Jones v. State, supra; Paschal v. State, 243 Ark. 329, 420 S.W. 2d 73.

The contention that the bench warrant was defective on its face must fail. The bench warrant is not in the record, and its specific defects are not pointed out by appellant. Even if we could say that it was defective, no objection to it was made by the defendant in the trial court. When a. defendant announces ready for trial without having made any objection to the warrant, any defect therein is waived. Slitter v. Ponder, 252 Ark. 414, 479 S.W. 2d 567; Cassady v. State, 249 Ark. 1040, 463 S.W. 2d 96; Estes v. State, 246 Ark. 1145, 442 S.W. 2d 221. See also, Sewell v. United States, 406 F. 2d 1289 (8th Cir. 1969); Frisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541 (1952). Even the absence of a warrant would not be ground tor reversal or appellant’s release. Cassady v. State, supra; Coger v. City of Fayetteville, 239 Ark. 688, 393 S.W. 2d 622.

HH HH HH

Under this point, several grounds for reversal are argued by the appellant. All of them deal with various alleged delays, which he now says were prejudicial to him, and other contentions relevant to the alleged delay. Appellant declares that his stay in the Miller County jail from his arrest on July 8, 1972, until trial on September 18, 1972, was due to unlawful delay in the issuance of a bench warrant, information, arraignment and appointment and presence of counsel. Specifically, the bench warrant was not issued until July 18, 1972, on information filed July 17. The information was amended September 11, 1972. The arraignment was held on August 28, 1972, after appointment of counsel on August 10 or 11, 1972. Appellant concludes that these delays were “unnecessary and unreasonable,” and they denied him the effective assistance of counsel.

The first conclusion is without merit since we cannot discover any constitutional or statutory ground as a basis for relief, and appellant neither objected in the trial court, gave any authority for the proposition that a 70-day period between arrest and trial is reversible error, nor demonstrated prejudice in any manner resulting from this “delay.” Appellant apparently confuses the rights to speedy trial under the Sixth and Fourteenth Amendments to the Federal Constitution and Art. 2, Sec. 10 of the Arkansas Constitution and Ark. Stat. Ann. §§ 43-1708, 1709 (Repl. 1964), setting forth outside limits in which defendants must be brought to trial, with the speedy arraignment (McNabb-Mallory) rule under the Federal Rules of Criminal Procedure.

The case of Randall v. State, 249 Ark. 258, 458 S.W. 2d 743, contains a complete answer to the speedy trial contentions appellant has raised. There we said:

Appellant relies upon Ark. Stat. Ann. § 43-1708 (Repl. 1964) which provides:
If any person indicted for any offense, and committed to prison, shall not be brought to trial before the end of the second term of the court having jurisdiction of the offense, which shall be held after the finding of such indictment, he shall be discharged so far as relates to the offense for which he was committed, unless the delay shall happen on the application of the prisoner.

This section implements Ark. Const. Art. 2, § 10, which guarantees a speedy trial in criminal cases. The right, however, is not in itself absolute. It prohibits oppressive delays, but not at the expense of public justice. Merritt v. State, 244 Ark. 921, 428 S.W. 2d 66 (1968). Over a century ago, this court observed in Stewart v. State, 13 Ark. 720 (1853):

By a speedy trial, is then intended, a trial conducted according to fixed rules, regulations, and proceedings of law, free from vexatious, capricious, and oppressive delays, manufactured by the ministers of justice.
# # *
What constitutes a speedy trial must be determined from the varying circumstances of each particular case with reference to the practical and efficient operation of the law. In this perspective, then, a speedy trial may be viewed as a matter of judicial discretion.

As to the McNabb-Mallory plea on the appellant’s part, we have long held this provision inapplicable to Arkansas Criminal Procedure. See Mitchell v. Bishop, supra; State v. Browning, 206 Ark. 791, 178 S.W. 2d 77; Hall v. State, 209 Ark. 180, 189 S.W. 2d 917.

The denial of the effective assistance of counsel allegedly suffered by appellant relates to matters occurring prior to trial. Appellant makes no claim that he was inadequately represented at trial. In his arguments, appellant does not relate any actions or omissions on the part of his attorney in improperly representing him, but argues some abstract underrepresentation simply because of the alleged delay. Since no continuance was sought or objection made, and appellant has failed to point out any prejudice to him as a result of delay in bringing him to trial, we cannot consider this issue to have any merit. Appellant is saying on the one hand that the state waited too long to bring him to trial and on the other that the state did not afford appellant ample time to prepare his case. We are unable to harmonize appellant’s inconsistent contentions, but we find no suggestion of prejudice to appellant’s having a fair trial. Appellant himself says that he declined to make statements to police officers in the absence of counsel, when counsel had not been assigned.

IV.

By an addendum to his brief, appellant states that neither he nor his attorney was furnished with a copy of the original information before his arraignment, or of the amended information prior to trial. The only statutory requirement that a copy of the indictment or information be furnished to a defendant is Ark. Stat. Ann. § 43-1204 (Repl. 1964), which applies only to capital cases.

V.

The contention made here is that since the amended information under which he was eventually tried was filed subsequent to his formal arraignment, appellant was tried as a habitual criminal without having been formally arraigned on that charge. When a defendant appears and announces ready for trial, he waives formal arraignment. Hill v. State, 251 Ark. 370, 472 S.W. 2d 722; Ransom v. State, 49 Ark. 176, 4 S.W. 658; Moore v. State, 51 Ark. 130, 10 S.W. 22; Hayden v. State, 55 Ark. 342, 18 S.W. 239. See also, Davidson v. State, 108 Ark. 191, 158 S.W. 1103, Ann. Cas. 1915B 436. Failure to arraign is not reversible error if the record shows defendant has received every right he would have received if arraigned. Hobbs v. State, 86 Ark. 360, 111 S.W. 264. Such is the case here. Furthermore, no objection was raised at any time to this alleged omission, and appellant did not then, and does not now, contend that he was surprised by the charge or inhibited in his defense in any way by reason of not having been formally arraigned on this charge.

Appellant also challenges, under this point, the use of an information rather than a grand jury indictment for purposes of charging him with the alleged crimes. This is, of course, without merit. Amend. 21, Constitution of Arkansas; Ark. Stat. Ann. § 45-806 (Repl. 1964); Davis v. State, 246 Ark. 838, 440 S.W. 2d 244, cert. denied, 403 U.S. 954, 91 S. Ct. 2273, 29 L. Ed. 2d 865 (1971); Stewart v. State, 241 Ark. 4, 406 S.W. 2d 313, cert. denied, 386 U.S. 946, 87 S. Ct. 983, 17 L. Ed. 2d 877 (1967); Smith v. State, 194 Ark. 1041, 110 S.W. 2d 24. See also, Penton v. State, 194 Ark. 503, 109 S.W. 2d 131.

VI., VIL, VIII.

All of these points concern the validity of appellant’s conviction as a habitual criminal. The amended information charges seven previous convictions. The record discloses that Morris Haak, Circuit Clerk of Miller County, testified as to one prior conviction for grand larceny, three prior convictions for forgery, and three prior convictions for uttering. A certified copy of one prior federal conviction, for possession of stolen mail in violation of 18 U.S. C. § 1708 (a) (2) (1964), was also introduced in evidence. The record also affirmatively discloses that in each of these convictions appellant was represented by counsel.

However, under point VI appellant contends that certain prior convictions, which were invalid because he was not represented by counsel, were introduced by the state and thus rendered his conviction as a habitual criminal void. The convictions involved occurred in 1955 for grand larceny. However, even assuming they are void, as we recognized in Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600, they do not necessarily change the result reached in the lower court for several reasons. First, these convictions were not offered in evidence in support of the habitual criminal charge, but were merely brought out on cross-examination by the prosecuting attorney for impeachment of appellant when he took the stand in his own behalf. Ark. Stat. Ann. § 28-707 (Repl. 1962); Noyes v. State, 161 Ark. 340, 256 S.W. 63. Second, no objection of any kind to this cross-examination was made in the trial court. Third, under Wilburn v. State, supra, this court on appeal from a conviction under the habitual criminal act may reduce a sentence when void convictions introduced have the effect of causing an illegal sentence to be imposed. The eight valid prior convictions are more than ample to support the lower court judgment as to the habitual criminal conviction. Appellant now contends that his guilty pleas on two of the convictions on which the state relied were coerced. We find no objection' to the evidence in the trial court on this ground, and appellant cannot raise this question for the first time on appeal.

Appellant’s point VII concerns the refusal of the trial court to accept the testimony of appellant as to the circumstances of the prior convictions and the rationale for defendant’s plea of guilty in the state convictions. No offer of proof was made, and we do not understand appellant’s present contentions to be anything other than an attempt to refry the earlier cases, which is certainly not permissible.

We have held that the testimony of the circuit clerk as to the contents of the official records is sufficient evidence to support a habitual criminal conviction. Flurry v. State, 248 Ark. 722, 453 S.W. 2d 402. There is no indication that the prosecution suppressed any evidence. Appellant’s only charge in that respect is based upon the prosecuting attorney’s objection to appellant’s attempt to testify as to defenses to these previous charges.

Under point VIII appellant claims that since the same jury found him guilty of the larceny charge and the habitual criminal charge, he was denied a fair and impartial jury in the latter instance. We do not agree. The procedure employed by the court in immediately submitting the habitual criminal charge to the jury which found appellant guilty of larceny is required by Ark. Stat. Ann. § 43-2330.1 (Supp. 1971). We have recognized the validity of this procedure and the habitual criminal act previously and this contention is without merit. Ridgeway v. State, 251 Ark. 157, 472 S.W. 2d 108; Brown v. State, 252 Ark. 846, 481 S.W. 2d. 366; Poe v. State, 251 Ark. 35, 470 S.W. 2d 818. See also, Rimes v. State, 251 Ark. 678, 474 S.W. 2d 115.

X

Appellant makes several contentions regarding his pretrial psychiatric examination, however, we can consider none of these asserted points of error. No defense of insanity was raised at the trial, and no objection was then raised, either to the report of the psychiatric examination made or to the absence of a report thereon at the time of the trial.

X.

We have carefully examined the record and briefs in this case, and cannot find any instance of arbitrary or discriminatory actions on the part of anyone connected with appellant’s trial. He contends the prosecutor and the judge were out to “get him” because of pending civil actions on his part against them. The record reflects no such arbitrary actions. We have carefully considered all the points raised and arguments made by appellant and find none to have merit.

In his brief, appellant makes a sweeping allegation that the trial court and the prosecuting attorney and his deputy were biased and prejudiced against him and discriminated against him in his trial. He now alleges that the circuit judge was prejudiced against him, partially because the judge, when he was prosecuting attorney, had filed felony charges against appellant. Yet we find no suggestion of the judge’s disqualification in the trial court and this argument comes too late, even if it had merit. We find no indication that the judge took any improper action prejudicial to the defendant in the case or that he gave any evidence of this alleged prejudice during the trial. See Walker v. State, 241 Ark. 300, 408 S.W. 2d 905.

There appears in the record a letter from appellant waiving representation of counsel on appeal. As stated in Widmer v. Modern Ford Tractor Sales, 244 Ark. 696, 426 S.W. 2d 806, “We recognize a litigant’s right to attempt his own representation in the courts of this state under our code of practice, but regardless of the amount in controversy or the merits of a litigant’s cause, we know of no way to protect a litigant against the incompetency of his attorney when he insists on representing himself in a court of law.”

The judgment is affirmed.

      “Reasonable grounds" has been treated as virtually synonymous with the probable cause requirement of the Fourth and Fourteenth Amendments. Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409. See also, Smith v. State, 241 Ark. 958, 411 S.W. 2d 510.

        McNabb v. United, States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957).


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

text:
    MEMBERS MUTUAL INSURANCE COMPANY v. Thomas BLISSETT
    5-6186
    492 S.W. 2d 429
    Opinion delivered April 9, 1973

      Barber, Henry, Thurman, McCaskill if Amsler, for appellant.

      Brown, Compton if Prewett, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Members Mutual Insurance Company, hereinafter called Mutual, from a circuit court judgment rendered on a jury verdict in favor of Thon is Blissett in a suit brought by Blissett to recover the excess of a judgment rendered against him in a suit for personal injuries instituted by Mr. and Mrs. Frisby.

The background facts are these: Mr. and Mrs. Frisby brought suit against Mr. Blissett for personal injuries growing out of an automobile collision and obtained a judgment on a jury verdict against Blissett in the amount of $21,418 and the judgment was affirmed on appeal to this court. Blissett v. Frisby, 249 Ark. 235, 458 S.W. 2d 735. Blissett carried his liability insurance with Mutual under a policy with $10,000 limit for each person. Under the terms of the policy Mutual agreed to defend any suit against the insured alleging bodily injury or property damage and seeking damages payable under the terms of the policy. Among other things the policy provided as follows:

“. . . the company may make such investigation and settlement of any claim or suit as it deems expedient.
* * *
The insured shall cooperate with the company and upon the company’s request, assist in making'settlements, in the conduct of suits and in enforcing any right of contribution or indemnity against any person or organization who may be liable to the insured because of bodily injury, property damage or loss with respect to which insurance is afforded under this policy; and the insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The insured shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than for such immediate medical and surgical relief to others as shall be imperative at the time of accident.”

Mr. Blissett filed the present suit against Mutual alleging that he was sued for $40,350 by the Frisbys; that Mutual furnished and paid for a defense to that lawsuit but that during the pendency of the lawsuit and prior to the trial thereof, the Frisbys made frequent demands for a settlement of their claims for sums less than the limits under Mutual’s policy, but that Mutual’s highest offer in settlement was the sum of $4,000 which was so meager as to constitute bad faith and negligence on the part of Mutual. Mr. Blissett prayed damages in the amount of $21,-776 together with 12% penalty, reasonable attorney’s fee and 6% interest from December 16, 1969, until paid.

In Mutual’s answer it denied that it was guilty of negligence or bad faith in its negotiations for a settlement with the Frisbys. A jury trial resulted in a judgment for Mr. Blissett in the amount of $11,418 still owed on the Frisby judgment together with all interest accumulated thereon, said amounts to be paid into the registry of the court for the satisfaction of the judgment in favor of the Frisbys against Blissett. The policy limits of $10,000 had already been paid by Mutual.

On appeal to this court Mutual contends that its motion for directed verdict should have been granted by the trial court and that the trial court erred in ordering the payment of interest on the Frisby-Blissett judgment accruing prior to the entry of judgment in the case at bar.

In the argument in support of its contention that the court erred in not directing a verdict in its favor, Mutual narrows the issues to two points stated as follows:

“First we submit that the law in this State is that if the insurance company is to be held liable for a negligent failure to settle, there must have been a demand by the insured that the company settle the case within the policy limits.
Secondly, . . . there was no evidence submitted on which it could be concluded that the defendant was guilty in failing to settle.”

In support of its contention that a demand must be made by the insured before liability attaches for failure to settle, the appellant cites Southern Farm Bureau v. Parker, 232 Ark. 841, 341 S.W. 2d 36, and argues that even though the necessity of a demand was not discussed in the opinion in that case, that we should now declare such to be the law. The Parker case was decided in 1960. In State Farm Mu tual Automobile Ins. Co. v. Jackson, 346 F. 2d 484 (1965), the Eighth Circuit Court of Appeals stated:

“As to the matter of a demand to settle: Although the Arkansas court in Southern Farm Bureau Insurance Company v. Parker, supra, approved a set of instructions, including, inter alia, one requiring a demand for settlement by the insured, that specific point was not discussed or specifically ruled by the Court in that case. No case has been cited, and we find none, in which the Arkansas Supreme Court has affirmatively decided the above question.”

The Eighth Circuit Court of Appeals affirmed the District Court in holding that a demand to compromise was not necessary to liability and it was pointed out in the Jackson decision that under the terms of the policy contract the company was given the power to determine whether an offer of compromise should be accepted or rejected within its coverage limits.

We do not deem it advisable to lay down a strict rule of law in this case that would require the insured to make demands upon the company that the claim be settled within the policy limits regardless of the provisions of the agreed contract. As already pointed out, in the case at bar, Mutual reserved the right to make such investigation and settlement of any claim or suit as it deemed expedient and the contract provided that the insured “shall not, except at his own cost, voluntarily make any payment, assume any obligation or incur any expense other than such immediate medical or surgical relief to others as shall be imperative at the time of the accident.” As a matter of fact, the policy contract provides that “the insured shall cooperate with the company and upon the company’s request, assist in making settlement. . .” (Emphasis added). There is no suggestion in the case at bar that Mr. Blissett, the insured, failed to co-operate with Mutual.

We now come to the question of whether there was sufficient evidence of negligence on the part of Mutual to take the case to the jury and we con-elude that there was. In Hoffman Wholesale Supply Co. v. Terry, 240 Ark. 399, 399 S.W. 2d 658, in dealing with a directed verdict, we said:

"... this court has said on numerous occasions that, in determining the correctness of the trial court’s action in directing a verdict for either party, we must take that view of the evidence which is most favorable to the party against whom the verdict is directed, and, .if there is any substantial evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error for the court to take the case from the jury. See Barrentine v. The Henry Wrape Company, 120 Ark. 206, 179 S.W. 328, and cases cited therein. Also, in Smith v. McEachin, 186 Ark. 1132, 57 S.W. 2d 1043, we said:
‘. ... In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence, or where the evidence is not in dispute but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict.’”

See aslo Home Mut. Fire Ins. Co. v. Cartmell, 245 Ark. 45, 430 S.W. 2d 849.

It is clear, therefore, in the case at bar that the trial court did not err in refusing to direct a verdict in favor of Mutual if there was evidence upon which fair-minded men might draw different conclusions therefrom. It is well established in this state than an insuror is liable to its insured for any judgment in excess of the insured’s policy limits if the insuror’s failure to settle the claim was due to fraud, bad faith or negligence. Tri-State Ins. Co. v. Busby, 251 Ark. 568, 473 S.W. 2d 893.

We now examine the evidence in the light of the above rules. The facts surrounding the collision out of which the original lawsuit arose are set out in Blissett v. Frisby, supra. There was the usual conflict in that evidence; Mrs. Frisby contending that she had gradually slowed her automobile and was in the process of driving it to the shoulder of the highway when she was suddenly struck from the rear by the Blissett automobile. Mr. Blissett testified that he observed Mrs. Frisby having difficulty with her small child in the seat with her and he contended that she suddenly stopped her automobile in the highway ahead of him and he could not avoid striking her automobile.

Mrs. Frisby underwent thoracic surgery after several months medical treatment as a result of injuries she sustained in the collision and the sufficiency of the evidence to sustain the amount of the judgment for her injuries is not questioned. We now consider the evidence as it relates to Mutual’s alleged negligence in its failure to settle the Frisby claim against Blissett within the policy limits.

Mr. John M. Shackleford, Jr., an attorney in El Dorado, represented Mr. and Mrs. Frisby in their suit against Mr. Blissett and he testified at length as to the efforts made to settle the Frisby claim. The substance of his testimony was to the effect that both prior and subsequent to his employment, the Frisbys offered to settle for $5,000 and Mutual offered $3,000. He said that after the issues were joined in litigation with attorney Richard H. Mays representing Mutual and Mr. Blissett, a first trial of the case resulted in a mistrial because of the jury being unable to agree on a verdict. He said that it was established by evidence at the trial of the case that Mrs. Frisby had sustained medical and related special damages of $4,408.39 and a 10% to 20% permanent partial disability because of the injuries. He said he still offered, on behalf of the Frisbys, to settle their claim for $8,500 together with $200 property damage and the costs, and that Mutual did finally offer an additional $1,500 on the medical, making a total of $4,500 as its best and final offer. Mr. Shackleford testified that after the judgment was entered in this case, in recognition of Mr. Blissett’s limited assets, he offered to settle the judgment for substantially less than the amount of it but to no avail. He said that after the judgment was affirmed by this court, Mutual paid the $10,000 limits of their coverage and also paid $350 property damage together with accumulated interest.

Mrs. Evon Blissett testified that she was a passenger in her husband’s automobile; that she gave her deposition but did not testify at either trial. She said she did not have any contract with any representative of Mutual before suit was filed but did talk with attorney Mays after suit was filed. She said that she does not remember the exact amount the Frisbys were asking in setdement but it seemed to her at the time that it was a rather small amount. She said that prior to the first trial when she and her husband were in Mr. Mays’ office, and her husband inquired as to why Mutual did not settle the Frisby claim, Mr. Mays replied: “They’re just being stubborn.”

Mr. Blissett’s testimony was about the same as that of Mrs. Blissett. He said that when the accident occurred, he reported it to Mutual’s Dallas office; that the Dallas office referred him to an adjuster in Texarkana who in turn referred him to the Ed Morneau’s Claims Service in Hope, Arkansas. He said he was subsequently contacted by an adjuster from that firm. He said he did not consider the collision in any way his fault, but that no one discussed the matter with him from the time he discussed it with the adjuster immediately following the collision until about a year later when he was served with summons. He said that during the preparation for one of the trials, he asked Mr. Mays whether the Frisbys had offered to settle and was advised that they had. He said that he then inquired as to why the matter had not been settled and that Mr. Mays replied: “Well, they wouldn’t. Thev were being stubborn and wouldn’t settle.” He said he did not know whether there was any offer after that or not. He said he didn’t inquire any further into the matter because he knew nothing about procedure of that nature and didn’t know whether his insurance company should settle or not settle; that he left the matter entirely up to Mr. Mays to handle.

Mr. Vernon T. Winchester, assistant claims manager for Mutual, testified that he is sure that he reviewed the file in this case after the Morneau firm had finished its investigation. He said that he did not feel that Mr. Blissett was at fault. He said that he selected attorney Mays to defend the lawsuit and sent him the copy of complaint and the investigation file. He said that he received a letter from Mr. Mays advising that depositions had been taken and recommending a figure of not in excess of $5,500 as a top offer in settlement. He said that he acts on the advice of Mutual’s attorney, and upon receipt of Mr. Mays’ letter he raised the reserves on the claim from $3,100 to $6,100 on the personal injuries in addition to the reserve for medical subrogation and property damage. Mr. Winchester testified, “I do not reserve in excess of what I think a case is possibly worth.” He said that after he learned that Farm Bureau was also being represented on its subrogation claim by Mr. Shackleford, he extended settlement authorization to Mr. Mays in the total amount of $4,500 and that Mr. Mays never aid make other recommendations above the $5,500 figure. He said that after the judgment totaling over $21,000 was rendered at the second trial and before appeal to this court, Mutual was willing to pay the $10,000 limit plus property damage if it could wipe the whole thing out and “get Mr. Blissett off the hook.”

On cross-examination Mr. Winchester testified that he never did tell Mr. Mays to offer as much as the $5,500 recommended by Mr. Mays. He said that after the first trial resulting in a hung jury and prior to the second trial, he did not increase the authority by calling Mr. Mays and saying, “Richard, offer so much.” He said that he did ask Mr. Mays to delve into the possibility of negotiation. He testified that he had no recall of increasing the authorization to Mr. Mays between the two trials. He testified that he changed the reserves on this case from $3,100 to $6,100 for bodily injuries and a separate reserve for property damage and said he would have authorized the payment of $6,100 for the bodily injuries because he did not reserve more than the maximum amount he thinks a claim is worth. He said that he could not tell from his files whether Mr. Mays ever knew that Mutual would be willing to pay $6,100 in settlement of the claim. He said he never did give Mr. Mays authority to settle the claim for $6,100, but did ask Mr. Mays to delve into the possibility of negotiating the claim after he had authorized $4,500 and after demand was made for $8,500 plus property damage. He testified that the maximum authority reflected in his files was $4,500, and he never did extend any further written authority to Mr. Mays to settle the case.

Mr. Mays testified that Mutual sent the file to him and advised that it was advising the Blissetts that he had been retained to represent their interest in the case and that they should communicate with him, which they did. He said that he had several conversations with the Blissetts and discussed the fact that they were being sued for more than the policy limits. He said that after going over the matter he suggested to Mutual a settlement figure not to exceed $5,500. He said that in making this suggestion he took into consideration the extent of injuries on what he considered to be a questionable case of liability, and that because of what he considered to be comparative negligence on the part of Mrs. Frisby, he felt there was a reasonable possibility of a defendant’s verdict. He testified that he does not recall the Blissetts inquiring as to why the case was not being settled. He said he was under the impression that the Blissetts were hoping that the case could be settled as a matter of convenience, but that he does not recall ever stating to them that Mutual was being stubborn. He testified that after Mr. Shackleford got into the case the offer he made on behalf of the Frisbys was $8,500, which included the medical expenses but that they wanted in addition $250 to $550 property damage and court costs including costs of depositions. He said that he felt that if the Frisbys were willing to come off the $8,500 plus offer, he would be willing to go back to Mutual and see if it would be willing to increase the authority it had given him. He said he believed he had a telephone conversation with Mr. Winchester prior to the first trial and he believes, as the trial was nearing, Mr. Winchester authorized him to make an offer of $4,500. He said, as he recalls, Mr. Winchester advised him to see if the offer of $4,500 would be accepted and, if it was not accepted, maybe they could find out what they would come down to. He said that he obtained the impression, however, from Mr. Winchester, that if the case could be settled for $5,000 or $6,000 that Mr. Winchester would have considered authorizing a settlement in that neighborhood. He said that he evaluated the case and in his opinion it was worth $5,500 to $6,000 in settlement value, but that Mr. Winchester never did give him authoritv to go to $6,000. He said that Mr. Winchester did tell him in a telephone conversation to offer $4,500 and if that was refused, and the Frisbys made a counter offer, to call him back and he would see what could be done. He said that he was never given settlement authority in excess of $4,500 and he never made request for authority above that amount, except for his original evaluation.

In Mr. Mays’ letter of January 15, 1969, to Mr. Winchester, he reported that depositions were taken in the case on January 13 and that Mrs. Frisby made a most impressive witness in her own behalf. He advised that she was an attractive and articulate woman who had not exaggerated her injuries but at the same time had not played them down, and he stated:

“Frankly, I was quite impressed with her bearing as a witness and I am afraid she is going to hurt us considerably if the jury finds against us on the issue of negligence.
Your insured, Mr. and Mrs. Blissett, made adequate witnesses although unfortunately they seem to have seen the accident in different ways. However, the inconsistencies in their testimony are not substantial or particularly material.”

Mr. Mays then pointed out in his letter the conflict in the testimony as to how the accident occurred and also advised as to the law on comparative negligence in Arkansas, and then stated:

“However, the jury makes this comparison and reduces the damages, and on a general verdict, we do not know what the jury thought about the comparative negligence of the plaintiff or whether they took this into consideration in affixing the plaintiff’s judgment.”

He then explained to Mr. Winchester the trial court’s reluctance to submit a case on interrogatories as to the degrees of negligence where there are only two parties involved. He then stated:

“In my opinion, the case is one which would be worthy of settlement if it can be done so for a reasonable figure. The plaintiff has offered to settle the case for the sum of $8,500.00 plus $200.00 property damage plus Court costs (including the expenses of the depositions). The plaintiffs apparently have approximately $1,500.00 of direct medical expense, plus an additional $1,500.00 of caretaking expense, transportation expense to doctors, etc. * * * The $8,500.00 figure mentioned above includes these medical expenses.
It is my opinion that the plaintiffs will be agreeable to reducing this offer somewhat and in my opinion we should come up somewhat from the previous offers which have been made. It is my understanding that the highest previous offer of settlement by your company was $4,000.00. This is going to be an expensive suit for both parties to try, due to the number of physicians who are involved, most of whom are not local physicians. Therefore, I would suggest a figure not to exceed $5,500.00 as our top settlement offer.
As soon as I have received the transcripts of the depositions and other medical information, I shall forward them on to you.
I would appreciate having your thoughts on this matter at your earliest opportunity.”

Summarizing the evidence of negligence in this case, Mutual reserved in its contract with Mr. Blissett, the right to investigate and settle claims made against him, and Mr. Blissett was only authorized under the contract to assist in making settlements when requested to do so by Mutual. Before attorneys were employed and suit was filed, the Frisbys asked $5,000 and Mutual offered $3,000. After attorneys were employed and suit was filed, the Frisbys, through their attorney, asked $8,500 and Mutual, through its attorney, offered $4,500. Mutual, through its Dallas home office claims supervisor, carefully selected a competent local trial attorney to represent it and its insured. He made investigation and reported in detail his impression of witnesses on both sides and evaluated the impression they would probably make on a jury and he recommended to Mutual a top settlement figure of $5,500. Instead of authorizing its attorney to offer that amount, or to use his own judgment in the light of his experience and the local situation, Mutual simply increased its reserves to what its claims supervisor considered the case was probably worth but only authorized its attorney to offer a total amount of $4,500.

We are of the opinion that the settlement authority Mutual reserved to itself under its contract with Blissett estopped it from relying on a demand from Blissett that the claim against him be settled within the policy limits, and we are also of the opinion there was enough evidence of negligence on the part of Mutual to take the case to the jury on the question of whether Mutual was negligent in not settling the claim within policy limits.

We hold that the trial court did not err in refusing to direct a verdict for Mutual, but we are of the opinion that the trial court did err in awarding judgment for accumulated interest on the Frisby judgment against Blissett. The substance of our holding on this point in Southern Farm Bureau Cas. Ins. Co. v. Hardin, 233 Ark. 1011, 351 S.W. 2d 153, and Tri-State Ins. Co. v. Busby, supra, is that a suit by an insured against his liability insurance carrier for negligent failure to settle a claim or lawsuit within policy limits, is a separate tort action and a judgment thereon only bears its own interest from the date of its rendition. With this modification the judgment is affirmed.

Affirmed as modified.

Brown and Fogleman, JJ., dissent as to the affirmance.

Byrd, J., dissents to the modification:

Holt, J., not participating.

John A. Fogleman, Justice,

dissenting. I cannot bring myself to a concurrence in the action of the court in this case. This court has clearly recognized, at least since Home Indemnity Company v. Snowden, 223 Ark. 64, 264 S.W. 2d 642, that a liability insurance company, which has virtually absolute control of settlement of a claim against its insured, at least when a settlement can be made by a payment within the policy limits, owes a duty to the policyholder to act in good faith and without negligence. I cannot subscribe to the unsound theory that an insurer should be liable for errors in judgment or want of the clairvoyance necessary to predict the amount of a jury verdict, especially where the question of liability is close and negligence must be compared. I think appellant is being penalized either for its failure to exercise good judgment, measured on the scale of hindsight, or its lack of intuitive ability to foresee, not only the result of the jury’s comparison of negligence, but, the amount which it would award as damages, particularly when a substantial part must have included awards for pain, suffering and mental anguish, present and future, and other elements of damage (such as loss of ability to earn and the husband’s loss of services and consortium) for which no one has discovered an adequate gauge other than the collective judgment of whoever might be the jurors in a particular case. See Blissett v. Frisby, 249 Ark. 235, 458 S.W. 2d 735. And this follows the court’s recent rejection of the idea that poor judgment can be equated with negligence. Tri-State Insurance Company v. Busby, 251 Ark. 568, 473 S.W. 2d 893. Infallibility in predicting the result of a case such as this should not be expected. The great possibility of an error in judgment, when so many intangible and imponderable factors are involved is well illustrated by the fact that the first trial in this case resulted in a hung jury by a vote which both Shackleford and Mays thought was 6 to 6. Shackleford’s testimony in explaining the prayer for damages in the complaint he filed for the Frisbys emphasized the uncertainty in predicting a jury verdict.

In my opinion, the correct rule as to these matters was followed by the United States Court of Appeals for the Fourth Circuit in American Casualty Co. of Reading, Pa. v. Howard, 187 F. 2d 322 (1951). That case bears a striking similarity to this, but the evidence is even stronger there because a demand for settlement was made by the insured, and the action for wrongful death was covered by a $5,000 policy. In reversing a judgment against the insurance company and dismissing the case, that court said:

Lawyers representing liability insurers of motor users are not required to be prophets who can accurately foretell the results of litigation in personal injury cases arising out of automobile accidents, nor does a mere mistake of judgment by these lawyers impose liability on these insurers beyond the policy limits of coverage. If these lawyers act reasonably, in good faith and without negligence in refusing proffered settlements, they, and the insurers they represent, have fully lived up to the duties imposed upon them. See, Bedford v. Armory Wholesale Grocery Co., 195 S.C. 150, 10 S.E. 2d 330; Lynch v. Pee Dee Express, 204 S.C. 537, 30 S.E. 2d 449; Farmers Gin Co. v. St. Paul Mercury Indemnity Co., 186 Miss. 747, 191 So. 415; Burnham v. Commercial Casualty Insurance Co., 10 Wash. 2d 624, 117 P. 2d 644.

The burden was upon appellee to show that appellant’s conduct in the matter was not the result of its failure to use good judgment but was the result of its negligence. In order that the question of the legal sufficiency of the evidence to meet this burden may be viewed in proper perspective, I must call attention to certain factors which I consider of some significance, but which are given little attention by the majority.

The first negotiations were conducted with an independent adjusting company acting on behalf of appellant. That company evaluated the claim at $3,000, and the report of its investigation was made to appellant. From this report, appellant’s assistant claims manager formed his opinion that Blissett was not at fault. Mays, the attorney employed by appellant to defend the Frisby suit, and upon whose advice appellant relied, never valued the claim, for settlement purposes, at more than $5,500. Not only did Blissett not demand settlement upon the basis of the offer made by Shackleford as attorney for the Frisbys, he did not even request or suggest that a settlement be made at this or any other figure. Blissett adamantly maintained that he was not at fault, even when he testified in this case. The greatest concession he ever made was his statement in that testimony that he could not have been any more at fault than Mrs. Frisby. Shackleford testified as to Mays’ great faith in Blissett’s defense. Blissett was advised, not only of the various steps taken but, of his right to employ his own attorney to protect his rights in view of the policy limits, but he chose not to avail himself of this right.

All negotiations after the filing of the Frisby suit were conducted between Shackleford and Mays. At one time, Mays asked Shackleford if the Frisbys would consider an amount less than their demand and was told that a lesser offer would be communicated to the Frisbys without Shackleford’s favorable recommendation unless the amount was somewhere near the demand. Shackleford indicated, in retrospective testimony, that he would have recommended a settlement for a total of approximately $8,000, but admitted that he never made an offer to settle for less than $8,700 plus costs. He recalled that Mays expressed the thought that a settlement might be reached. He would not deny that Mays inquired about a settlement in the range of $5,000 to $6,000 although he could not recall it. Mays testified that this inquiry was made at the request of Winchester, appellant’s assistant claims manager, and Shackleford indicated that if the company would offer no more than this, they might as well get ready to try the lawsuit. Shackleford testified that he had the definite impression that Mays’ suggestion of a $5,000 to $6,000 figure was on a “take-it-or-leave-it” basis, even if appellant would authorize it. Winchester confirmed the fact that he had requested that Mays ascertain from discussions with Shackleford whether there was room for further negotiations.

Mays was always of the opinion that the Frisby offer was in excess of a reasonable settlement value, and that total damages would not amount to more than the policy limits, even if the jury should find no negligence attributable to Mrs. Frisby. He doubted liability for certain out-of-pocket expenses and felt that Mrs. Frisby’s disability was not as substantial as claimed. He felt that the insured’s liability was highly questionable and that there was a reasonable possibility of a defendant’s verdict.

On the basis of the evidence, giving it the very highest probative value possible, I have been unable to see how there was anything more than a mistake in judgment on the part of the insurance company and its attorney. This brings me to a bit of testimony which appellee and the majority opinion emphasize. That is the testimony of the Blissetts that Mays responded to their question why the insurance company did not settle the claim by saying that “they were being stubborn.” Although there may be some question as to who he thought was being stubborn, the inference to be drawn from this testimony most favorable to appellee is that he referred to the insurance company. I do not consider this to be substantial evidence even though it was admitted without objection. I think that it is not substantial evidence because it has no probative value.

In the first place, this statement by the attorney was not binding on the client. An extrajudicial statement or admission by an attorney (made in the absence of the client and without his knowledge or consent) which is not given for the purpose of dispensing with proof of the fact admitted, is not binding on the client unless the attorney has special authority to make it, aside from his mere employment in connection with pending or prospective litigation. 7 Am. Jur. 2d 121, § 122; Hogenson v. Service Armament Co., 77 Wash. 2d 209, 461 P. 2d 311 (1969). See also, Geesey v. Albee Pennsylvania Homes, Inc., 211 Pa. Super. 215, 235 A. 2d 176 (1968). Such admissions are not evidence. Hicks v. Naomi Falls Mfg. Co., 138 N.C. 319, 50 S.E. 703 (1905). Furthermore, such a statement will not be binding if it. is not a statement of fact but a mere expression of an opinion. Cato v. Silling, 137 W. Va. 694, 73 S.E. 2d 731, cert. denied, 348 U.S. 981, 75 S. Ct. 572, 99 L. Ed. 764 (1952), reh. denied, 349 U.S. 924, 75 S. Ct. 659, 99 L. Ed. 1256 (1952); State v. Edins, 25 N. M. 680, 187 P. 545, 8 A.L.R. 1331 (1920); Hicks v. Naomi Falls Mfg. Co., supra. We have held that the mere statement of a witness’ conclusions without his detailing facts which would furnish a logical basis for his belief is not competent evidence to sustain a judgment. Couch v. Rockafellow, 205 Ark. 1153, 172 S.W. 2d 920. The statement of a mere conclusion has no probative force. United States v. Nelson, 102 F. 2d 515 (8th Cir. 1939), cert. denied, 308 U.S. 550, 60 S. Ct. 81, 84 L. Ed. 462 (1939).

Testimony of no probative value does not constitute substantial evidence. Substantial evidence means that which has probative force on the issues and is of legal significance. Tangora v. Matanky, 231 Cal. App. 2d 468, 42 Cal. Rptr. 348 (1964). Substantial evidentiary support requires evidence having a rational probative force. Consolidated Edison Co. v. L. R., 305 U. S. 197, 59 S. Ct. 206, 83 L. Ed. 126 (1938). In determining the legal sufficiency of the evidence to support a verdict (or to justify denial of a directed verdict) the question for the appellate court is whether the testimony, given its strongest probative force, is of a substantial character. St. Paul Fire & Marine Ins. Co. v. Martin, 204 Ark. XVIII, 165 S.W. 2d 606; Coca-Cola Bottling Co. v. Spurlin, 199 Ark. 126, 132 S.W: 2d 828; Western Union Telegraph Co. v. Byrd, 197 Ark. 152, 122 S.W. 2d 569; Hall v. Jones, 129 Ark. 18, 195 S.W. 399; Cleveland-McLeod Lumber Co. v. McLeod, 96 Ark. 405, 131 S.W. 878. Of course, it follows that evidence without probative value cannot be considered in determining legal sufficiency of the evidence. See Fleming v. Twiggs, 244 N.C. 666, 94 S.E. 2d 821 (1956). I submit that there was no substantial evidence of appellant’s negligence and that a verdict for appellant should have been directed.

Perhaps such a consideration is extraneous, but I shudder to think of the impact this decision will have on the cost of the minimum insurance required by the motor-vehicle safety responsibility act. Ark. Stat. Ann. § 75-1401, et. seq. (Repl. 1957). When liability for a recovery of amounts in excess of these limits may be imposed by a jury passing in judgment upon a difference of opinion as to the probable outcome and award in an automobile collision case, and the perfect vision of hindsight can be utilized, the minimum policy limits may well come to have little meaning in any case in which a claim could have been settled for less before trial, but was not. It also gives me pause when I consider the potential increase in the number of uninsured motorists likely to be driving on our highways because of the cost of protection within the minimum limits. Of course, this would mean that uninsured motorist coverage premiums would inevitably increase. Reverting to the opinion in American Casualty Co. v. Howard, supra, I find this further language of the Fourth Circuit Court of Appeals appropriate, viz:

We have adverted at some length to the duty of the insurer under the policy here to safeguard the interests of the insured. It should be remembered, though, that the premium on such policies varies with the insurer’s maximum limit of liability under the policy. Accordingly, when the insurer fully lives up to its duty, there is no right in the insured to compel the insurer to offer the amount of its maximum limit in order to effect the amicable settlement of a claim against the insured and to protect the insured against a possible judgment in excess of the policy limit. Insured can readily secure all needed protection by purchasing, and paying for, a policy with a high limit of liability on the insurer.

I would reverse the judgment and dismiss the case.

I am authorized to state that Mr. Justice Brown joins in this dissent.

Conley Byrd, Justice,

dissenting in part. I dissent to that portion of the majority opinion disallowing the accumulated interest on the Frisby judgment against Blissett.

Article 2 § 13 of the Arkansas Constitution, provides that, “Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character, . . .”

Arkansas Statutes § 29-124 (Repl. 1962), provides:

“Creditors shall be allowed to receive interest at the rate of six (6) per cent per annum on any judgment before any court or magistrate authorized to enter up the same from the day of signing judgment until the effects are sold or satisfaction be made;. . .”

Arkansas Statutes § 68-606 (Repl. 1957), requires that upon receipt of partial payment on any judgment the amount thereof shall first be credited to payment of interest and the balance if any to principal.

In speaking of the damages suffered by the insured when the insurer negligently fails to settle within the policy limits and an excess verdict is entered, the annotator in 40 A.L.R. 2d at page 190 (§ 7 Damages) states:

“The great majority of the cases involving a charge that a liability insurer has wrongfully rejected an offer by the injured party to compromise a claim against the insured have involved the situation where, following a refusal by the insured to contribute a figure within the policy limits toward a compromise offer, the action against the insured results in an adverse judgment in excess of the insurance coverage. There appears to be no doubt that in such a situation an insurer whose bad faith or negligence (as required in the particular jurisdiction) is established, may be held liable to the insured for the amount which the latter was required to pay in satisfaction of the judgment, in so far as that amount exceeds any contribution which the insured would have had to make if the settlement offer had been accepted.”

From the foregoing, I conclude that the injury suffered because of the insurer’s conduct is that amount of the judgment entered in excess of the policy limits. This amount, however by virtue of Ark. Stat. Ann. § 29-124 (Repl. 1962), and Ark. Stat. Ann. § 68-606, supra, in-eludes the interest accumulating thereon at the rate of six percent per annum. If then, in an action by the insured against the insurer for negligent failure to settle, the damage or injury is the excess judgment, where have we provided a remedy pursuant to Art. 2 § 13 of the Constitution for the injury the insured received if we hold that he is not entitled to the accumulated interest on the judgment against him?

If appellant had performed its duty and settled within the policy limits there would be no excess judgment on which interest could accumulate. Thus, I take it as being logically established that the accumulating interest on the judgment against Blissett is the direct and proximate cause of the insurer’s wrongful conduct. In other words the accumulating interest is nothing more nor less than an injury that is permanent and continuing in character. In 22 Am. Jur 2d Damages § 19, it is pointed out that such damages may be recovered to the date of trial “. . . if they are the natural and necessary result of the injury complained of and do not themselves constitute a new cause of action — or in other words, if no other action can be maintained for them.”

The illogic of the majority view can be shown by assuming that the insurer in its private correspondence conceded its liability for the excess judgment of some $11,-000 but through dilatory tactics and a crowded trial court docket found that it could delay a trial on the issue for two years. In that situation the insurer could deposit the $11,000 in a savings account and draw an income of $1,-320 at 6% interest while the judgment against Blissett is increasing to ($11,000 plus $1,320) to $12,320. I cannot think of anything more disgusting than a law that makes it profitable for one to delay the payment of his just obligations. In condemning a similar delay in Consolo v. Federal Maritime Comm’n, 383 U.S. 607 (1966), Mr. Justice White stated:

“. . . Further, although Flota’s suit was pending for about two years, the record indicates that much of the delay involved in this case was at the request or approval of Flota. At any rate, it has never been the law that a litigant is absolved from liability for that time during which his litigation is pending. . . . During this time Flota was able to postpone the predictable demise of its discriminatory contract and Consolo continued to suffer injury.”

The interest issue has been discussed in two cases before this court, Southern Farm Bureau Casualty Insurance Co. v. Hardin, 233 Ark. 1011, 351 S.W. 2d 153 (1961), and Tri State Insurance Company v. Busby, 251 Ark. 568, 473 S.W. 2d 893 (1971). If they are authority for the proposition now before the court, they should be overruled as a denial of a remedy for a wrong under Art. 2 § 13, supra.

Actually the matter of the recovery of interest has generally had a rather summary (and sometimes inconsistent) treatment in our many decisions. See for instance, Kelly v. Altemus, 34 Ark. 184 (1879), where the court said:

“The ordinary measure of damages for the plaintiff in replevin, in the absence of proof of special damage, is legal interest on the value of the property, in addition to the property itself or its value. . . . This with regard to property which has no useable value, except for consumption. With regard to property having a useable value by way of bailment for hire, like horses or tools, the true measure is the value of the use during the detention. ...”

In Bradley Lumber Co. v. Hamilton, 117 Ark. 127, 173 S.W. 848 (1915), there was a claim for conversion of timber. In holding that the claimant was entitled to interest on the value it was said:

“In Nunn v. Lynch, supra, the court cited with approval the discussion in the case of Laycock v. Parker, 103 Wis. 161. In that case the court held that where damages were capable of ascertainment by reference to reasonably certain market values and the various items of damage have been duly and adequately presented, and its payment demanded before suit is commenced, the claimant is entitled to interest from the time of súch demand.
“The claim of the plaintiff in this case was capable of ascertainment by the defendant after its presentation by reference to the reasonably certain market value of timber cut and removed by the defendant. Therefore, the plaintiff was entitled to interest, and no error prejudicial to the defendant was committed in the allowance made by the court.”

However, in Kansas City Fibre Box Co. v. F. Burkhart Mfg. Co., 184 Ark. 704 (1931), appellant had sold the timber it had cut and removed from appellee’s land by filing a cross bond in a replevin action. This court, after upholding a rather generous market value finding without a deduction for the cost of hauling to the rail siding, rather summarily denied a cross appeal for interest on the basis that no demand had been made prior to trial.

In a number of tort cases interest has been allowed either by the court or the jury. In Nunn v. Lynch, 89 Ark. 41, 115 S.W. 926 (1908), interest was allowed in an ejectment action. In Railway Co. v. Yarbrough, 56 Ark. 612 (1892), the allowance upon the value of crops destroyed by flood water was approved. In Ryburn v. Pryor, 14 Ark. 505 (1854); Hooten v. State, Use of Cross County, 119 Ark. 334, 178 S.W. 310 (1915); Meyers v. Meyers, 210 Ark. 714, 197 S.W. 2d 477 (1946), and Humphreys v. Butler, 51 Ark. 351 (1888), interest was allowed for conversion.

The allowance of interest by the jury in personal injury actions has been approved in The Railway Ice Company v. Howell, 117 Ark. 198, 174 S.W. 241 (1915), and in St. Louis I.M. & Ry Co. v. Cleere, 76 Ark. 377, 88 S.W. 995 (1905). In the last mentioned case the issue was the sufficiency of the evidence to sustain a $20,000 verdict. In so doing this court stated:

“The plaintiff was entitled to interest at the rate of 6 per cent per annum on the amount of the damages from the date of Tomlinson’s death, when the cause of action arose, to date of recovery. Computing interest at that rate on an estimate of damages at $13,190 from July 8, 1894, the date of Tomlinson’s death, up to February 14, 1903, the date of judgment, would make a total of $20,000 principal and interest.”

In summation, I submit that the tort theory used in Tri State Ins. Co. v. Busby, supra, does not stand the test of our prior decisions. The Busby case also fails to recognize that the matter in issue is a liquidation claim that constitutes a continuing injury to the aggrieved insured. Since I can think of no way in which the accumulating interest on the excess judgment against Blissett can be considered in any way other than an injury directly and proximately caused by Members Mutual Insurance Company, it appears to me that we are violating Art. 2 § 13 of the Constitution, supra, when we deny to Blissett a remedy for the wrong he has received.

Other jurisdictions ordinarily allow the recovery of interest. See Southern Farm Bureau Casualty Insurance Co. v. Mitchell, 312 F. 2d 485 (1963 C.A.A. 8); Augustin v. General Accident Fire and Life Assurance Corp., 283 F. 2d 82 (7th C.A.A. 1960); and Lee v. Nationwide Mutual Insurance Company, 286 F. 2d 295 (4th C.A.A. 1961).

For the reasons stated, I respectfully dissent to the disallowance of the accumulated interest.

      It is interesting to recall that the court limited recovery in this case to the policy limits.

      There was no evidence of fraud or bad faith. The first was not alleged. The trial court properly eliminated the latter as an issue.

      See Blissett v. Frisby, 249 Ark. 235, 458 S.W. 2d 735.

      A.M.I. § 2219, the present value instruction requires the jury to consider interest with respect to future damages.


author: J. Fred Jones, Justice.

text:
    ROYAL SERVICE COMPANY v. WHITEHEAD CONSTRUCTION COMPANY, Inc. and FIDELITY And DEPOSIT COMPANY Of MARYLAND
    5-6236
    492 S.W. 2d 423
    Opinion delivered April 9, 1973

      Jones, Matthews ir Tolson, for appellant.

      Anderson & Crumpler, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Royal Service Co. from an adverse circuit court judgment on a jury verdict in a suit by Royal against Whitehead Construction Company and its bondsman, and a counterclaim by Whitehead against Royal.

The facts appear to be as follows: Whitehead was the general contractor for the construction of a building at Southern State College. By written contract dated February 18, 1971, Whitehead sublet the mechanical work on the building to Royal as a subcontractor for the price of $94,006. Whitehead required the subcontractor Royal to carry its own liability and workmen’s compensation insurance and among other provisions of the contract Article 9 provided in part as follows:

“Prior to starting work the required insurance shall be obtained from a responsible insurer, and satisfactory evidence shall be furnished to the Contractor that the Subcontractor has complied with the requirements of this Article 9.”

The subcontract further provided that the evidence of insurance should consist of “Insurance Certificates,” and that the time of commencement and completion of the work was to be the essence of the contract unless extended by the contractor’s written consent. The commencement date was designated as February 18, 1971, and the completion date as December 24, 1971.

Royal moved a tool house onto the construction site, ordered some materials and obtained shop drawings necessary to the performance of its subcontract, but it failed to furnish certificates of insurance. On June 3, 1971, Whitehead discharged Royal and directed him to remove his tool house and materials from the job.

Royal filed suit against Whitehead alleging that he had proceeded with his work as provided in his subcontract and had completed so much of the work as could be done in the state of progress of the general contract when it was wrongfully discharged by Whitehead. Royal alleged damages and práyed judgment in the amount of $9,542 for loss of profit and $1,677.98 for labor performed and materials furnished. Whitehead answered by general denial and in counterclaim alleged that Royal failed and refused to comply with the terms of the subcontract by furnishing certificates of insurance as required therein and performing the services required thereunder. Whitehead alleged that because of Royal’s failure and refusal to comply with its contract, Whitehead was forced to purchase and install ducts at a cost of $1,250, and was forced to discharge Royal and secure the services of another subcontractor at an additional cost of $5,576, exclusive of the duct work, and Whitehead prayed judgment for $6,826. A jury trial resulted in a judgment for Whitehead on Royal’s complaint and for Whitehead on its counterclaim but with no damages to Whitehead.

On appeal to this court Royal first contends that the trial court erred in permitting Whitehead to introduce testimony of non-performance by Royal on matters which Whitehead had not pleaded as breaches of contract. We find no merit in this contention. Royal alleged in its complaint that it had proceeded with the work as provided for in the contract and had completed so much of the work as could have been done in the state of progress of the work on the general contract. Whitehead denied these allegations and affirmatively alleged breach of contract by failure to furnish certificates of insurance and to perform the services required under the contract.

Ark. Stat. Ann. § 27-1155 (Repl. 1962) provides as follows:

“No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be shown to the satisfaction of the court, and it must also be shown in what respect he has been misled; and thereupon the court may order the pleading to be amended upon such terms as may be just.”

In Ark. Stat. Ann. § 27-1160 (Repl. 1962) is found the following language:

“. . .when the allegations of a pleading are so indefinite or uncertain that the precise nature of the claim or defense is not apparent, the court may require the pleading to be made definite and certain by amendment. The court must, in every stage of an action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

In Wood v. Smith, 224 Ark. 589, 275 S. W. 2d 1, this court said:

“While the cross-complaint is wanting in language completely expressing Smith’s cause of action, this vice could have been reached by motion to make more definite and certain. In the absence of such a motion it must be presumed that the cross-defendant was not without information as to the nature of the claim. The language is sufficient to suggest a legal duty upon Wood's part to fulfill a contractual obligation, and his failure to do so.”

See also Bonds v. Littrell, 247 Ark. 577, 446 S. W. 2d 672, and Young v. Moore, 251 Ark. 296, 472 S. W. 2d 100.

We are of the opinion that the allegations of the counter-claim were sufficient to permit the introduction of the testimony relating to the breach of contract, even if it were not, there was no prejudicial error. The trial court, in its discretion, may permit a new issue to be introduced during the progress of the trial. Gardner v. Farmers Electric Co-op Corp., 232 Ark. 435, 338 S. W. 2d 206. The court may admit evidence in support of such an issue and, if necessary, give the adverse party an opportunity to prepare to meet it. Jonesboro Coca-Cola Bottling Co. v. Holt, 194 Ark. 992, 110 S. W. 2d 535. Here, there was no plea of surprise or. suggestion that appellant needed additional time. Furthermore, the evidence was offered to show that appellant’s contentions about his wrongful discharge were untrue and it tended to disprove facts essential to appellant’s cause of action. The evidence was also admissible on this ground. Andrews v. Victor Metal Products Corp., 241 Ark. 889, 411 S.W. 2d 515.

Royal next contends that the trial court erred in permitting introduction of written reports to corroborate Whitehead’s witness. The reports referred to were progress inspection reports made by Mr. M. W. Calhoun, inspector for the architect, and they were objected to on the ground they were hearsay and irrelevant to the issue. Apparently the trial court felt that these progress reports were offered and admissible as memoranda or records made in the regular course of business under Ark. Stat. Ann. § 28-928 (Repl. 1962) and we are unable to say that the trial court erred in this regard. While § 28-928 makes certain business records admissible in evidence, it does not make such evidence either material or relevant. The evidence was material and relevant in this case because Whitehead testified that copies of some of the reports were handed to Mr. Ted Queen (the president, manager and principal owner of Royal), and their content tended to controvert Queen’s testimony that his services had not been needed prior to his discharge, or that he had not been called upon to render any.

Royal next contends that the trial court erred in refusing to give its requested instructions Nos. 12 and 13. These requested instructions would have told the jury that if they should find that Royal had rendered substantial performance of the contract up to the time of the cancellation, Whitehead would not be justified in canceling the contract. Requested instruction No. 12 would also have told the jury that substantial performance permits enumerated omissions or deviations from the contract and may, without injustice, be compensated for by deductions from the contract price. Requested instruction No. 13 would have told the jury where work has been done substantially in compliance with the terms of a contract, or accepted by the other party, there is no substantial breach of the contract, and cost of correcting defects would be deducted from the payments to be made under the contract. We find no error in the refusal of these instructions. In the first place, we find no substantial evidence of substantial performance, and in the second place, the authorities relied upon by the appellant in support of the instructions emphasize waiver by the party attempting to cancel. See Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W. 2d 304; Arkansas Lumber v. Benson, 92 Ark. 392, 123 S. W. 367; Grayling v. Hemingway, 128 Ark. 535, 194 S. W. 508. We do not deem cases relating to minor deviations or omissions to be applicable to the evidence in this case.

In its last assignment of error Royal contends that the court erred in permitting Whitehead’s witness to construe an insurance policy not in evidence and in violation of the best evidence rule, and in violation of the further rule that construction of insurance policies is a matter of law for the court.

Mr. John Dexter, Whitehead’s insurance agent, was called as a witness for Whitehead. He testified on direct examination that on June 3, 1971, Mr. Queen made application to him for liability and workmen’s compensation insurance and that he attempted to obtain insurance coverage for Royal but was unable to do so. He said he explained to Mr. Queen that he could place his compensation coverage if Whitehead was willing to endorse it and would be fully responsible for the premiums, the experience and everything, but that he could not write the liability insurance under any condition. He said that Mr. Queen told him that the coverage he had under binders had either terminated or would terminate within a few days and would not be extended, and that he couldn’t go on the Whitehead job with the binders. He said that this particular job was a federal job and the architects were real strict on the requirements of insurance to make sure that federal standards were complied with.

On cross-examination this witness testified that he called Mr. Whitehead and inquired about putting Royal under Whitehead’s policy and that Whitehead refused to permit him to do so. The testimony on cross-examination then continued as follows:

“Q. So you did discuss with him that you could provide insurance to him under Mr. Whitehead’s policy if Mr. Whitehead was agreeable?
A. Only one policy, compensation — liability I could not.
Q. Well, didn’t you already have the coverage under liability for the whole job?
A. Not for Queen.
Q. But the general contractor, excuse me, — do you have a policy with you?
A. No sir.
Q. Or your daily as to, — anything that you would say now about whether plumbers or electricians or air condition people, that would just be strictly out of your head wouldn’t it?
A. Not necessarily. Under a workmen’s compensation policy if a subcontractor does not provide coverage the general contractor automatically provides coverage under Arkansas law. Under liability it is a different situation.
Q. So as far as the workmen on the job the Whitehead policy would provide coverage at the very outset of the contract, it was providing coverage wasn’t it?
A. Providing coverage for Whitehead, yes sir.
Q. All right, and if it developed that Ted Queen didn’t have a workmen’s compensation policy you had coverage for him too didn’t you?
A. Through Whitehead, yes sir.
Q. Through Whitehead?
A. For workmen’s compensation only.”

As to the testimony on redirect to which Royal assigns error, the record is as follows:

“Q. You have testified that under no circumstances would the liability insurance that you had written for Mr. Whitehead would it cover Ted Queen on this job.
MR. JONES: Your Honor, I am going to object to it, he doesn’t have the policy and he has been objecting to these other folks interpreting contracts, so I will object to this one too.
THE COURT: Overrule your objection.
Q. Would you answer the question?
A. Mr. Whitehead’s policy provides, his liability provides him coverage only.”

The appellant Royal cites several cases on the “Best Evidence Rule” but we conclude that the “Best Evidence Rule” does not apply to the evidence in this case. As the above testimony will indicate, the question of whether Royal was covered under Whitehead’s policies was first brought out on cross-examination by Royal’s attorney. Mr. Dexter testified that he wrote Whitehead’s insurance and as we interpret his testimony, he was not asked to interpret a provision of an insurance policy. He simply testified that the policy he wrote provided liability coverage for Whitehead only.

In connection with the insurance, on May 5, 1971, Mr. Whitehead wrote to Royal as follows:

“. . .if you will look at your contract it says you must furnish us with a copy of your insurance we have not received it as of this day. You or your men will not be allowed back on this job until we receive same.”

On May 11, 1971, in regard to the insurance, Royal’s letter to Whitehead states:

“. . .We have been talking with an insurance man 8c he keeps promising to mail same. We feel sure you will have it this week. However, the delay is not all his fault as we were making some changes 8c changing the company also.”

Then on May 18, 1971, Mr. Whitehead wrote to Royal as follows:

“As per our telephone conversation last evening you have until Friday, May 21, 1971 to furnish this office with the necessary Insurance coverage as per specifications and also a Performance Bond for the complete Mechanical contract.
If the above is not carried out by Friday, please remove your tool house and material off of the above job no later than May 24, 1971.”

Then on June 3, 1971, Mr. Whitehead wrote his final letter to Royal as follows:

“This letter will officially discharge you as the Mechanical Contractor on above reference job.
We regret you were unable to furnish the necessary Insurance and perform the work as per your contract.
You have broken your contract in several different ways. We have been out untold expense of having to wait on you.
Please remove your tool house and small amount of material you have on hand.
Miller Plumbing Company has agreed to help us out and assume your contract. They will start work this day.”

It is clear from the overall evidence in this case that Royal was required under its contract to obtain its own liability and compensation insurance coverage on the job and present to Whitehead certificates of insurance as evidence of its compliance before proceeding in the performanee of the work under its subcontract. The evidence is also clear that Royal could not, or did not, comply with this provision of its contract until after it was discharged.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Joyce Ann Keenzel NEWNUM v. Bobby Glenn KEENZEL
    5-6214
    492 S.W. 2d 408
    Opinion delivered April 9, 1973

      Baker it Pittman, for appellant.

      Herndon ¿r Barton, P.A., for appellee.
   Conley Byrd, Justice.

The Chancellor awarded temporary custody of Dorothy Virginia Keenzel, age seven, to her father, appellee Bobby Glenn Keenzel. For reversal appellant Joyce Ann Keenzel Newnum contends that the temporary award is contrary to a preponderance of the evidence and that the trial court erred in propounding questions to the witnesses.

The record shows that on September 27, 1971, appellant obtained an uncontested divorce wherein she was awarded custody of Dorothy Virginia Keenzel and the appellee was directed to pay $20 per week child support. It appears that appellee was involved in an industrial accident the next day and did not go back to work until August 9, 1972. Following the divorce, both parties have remarried. Appellee’s wife appeared and testified at the hearing from which this appeal was taken but appellant had obtained an annulment from her husband, a convicted bigamist serving time in the State Prison at Cummins.

Following the divorce and prior to the proceeding before us, the record shows that on May 22, 1972, appellant filed a petition to have appellee held in contempt of court for failure to pay child support and for unlawfully removing the child from her home at Batesville, Arkansas. In response to the citation for contempt for failure to pay, appellee set up his industrial accident and subsequent hospitalization as a defense. To the citation for removal of the child from Batesville, appellee pleaded that since he had not been permitted to visit with the child since January 1972, the appellant subject to the approval of her husband, Gilbert Newnum, had consented for him to take the child on Friday, May 19th, before the citation was issued on Monday, May 22nd. At a hearing held on that citation, the chancellor found that appellee was not in contempt of court but awarded appellee visitation rights to run from June 24 to Monday July 17, 1972 and from August 21, 1972 until the weekend preceding Labor Day.

The present controversy came before the trial court upon appellant’s petition for writ of habeas corpus filed on September 12, 1972, alleging that appellee came to appellant’s home in West Helena on or about September 1, 1972 and, on the pretext of taking the child out for a hamburger, took the child from appellant and returned to Pulaski County and that he now refuses to surrender the child to appellant.

The proof on the part of appellee was that because of financial difficulties he was forced to move on August 6, 1972, from his former home to another place and that on that date he notified appellant of his new address as he had been instructed to do by the chancellor. On August 21st, he went to Batesville to pick up his child for the designated visitation period but upon arrival he found that appellant had moved. He did not find the whereabouts of his child until sometime after 10:00 p.m. on August 25th, when Howard Langwell, appellant’s father, phoned appellee’s home. Appellee and his wife went to West Helena on August. 26th, arriving about 10:00 a.m. to pick up the child, but found that neither appellant, the child nor Mr. Langwell was at home. At about 8:15 p.m. Mr. Langwell, his girl friend, appellant and the child arrived at Mr. Langwell’s home. There is a dispute between the parties as to what happened thereafter, but it is fair to say that under the pretext of going to get a coke, the child left Mr. Langwell’s home with appellee and his wife. Immediately upon arriving home, appellee notified appellant by phone that he had the child at his home in Pulaski County.

Appellant’s proof showed that following the last citation for contempt hearing, she had caused her marriage to Mr. Newnum to be annulled. Her father visited her on August 5th and persuaded her to move to West Helena with him which she did on August 19th. Both she and her father testified that she notified appellee by a letter mailed on August 5 th, that she was moving to West Helena. Both she and her father testified that the child had her clothes packed and ready to go visit with appellee on August 21st, but he did not come after her. The testimony developed that Mr. Newnum was getting out of prison the week following the trial and that he was going to live with Mr. Langwell and that Mr. Langwell had arranged with his employer to give Mr. Newnum a job. On August 26th appellant, the child, Mr. Langwell and his girl friend had been to Cummins’ Prison Farm to see a rodeo in which Mr. Newnum had participated.

From questions asked by the court about the alleged notice that appellant had mailed to appellee on August 5th, appellant admitted that appellee had never been to her father’s home in West Helena and that she did not know her father’s address. Appellee testified that he did not receive the notice.

Appellant admitted that the child had failed the second grade because she had moved around with Mr. Newnum some four times during the school year. She also admitted that she had not notified the Master in Chancery of her change in address so that she could receive the child support payments that had been made.

On the whole record, we cannot say that the chancellor abused his discretion in awarding temporary custody to the father. Nor can we say that the chancellor abused his discretion in asking questions. See Ratton v. Busby, 230 Ark. 667, 326 S.W. 2d 889 (1959), and Marshall v. Marshall, 55 App. D.C. 173, 3 F. 2d 344, 40 A.L.R. 624 (1925). In the last mentioned case, it is pointed out that in domestic relation cases, a trial judge, who sits as a fact finder, has a wide range of discretion in asking questions of a witness.

Affirmed,