author: Richard B. Adkisson, Chief Justice. Hickman, J., Robert H. Dudley, Justice, John I. Purtle, Justice,

text:
    Darrell Wayne HILL v. STATE of Arkansas
    CR 81-18
    628 S.W. 2d 285
    Supreme Court of Arkansas
    Opinion delivered February 8, 1982
    [Rehearing denied March 15, 1982.]

      Bob Keeter and William H. McKimm, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

On July 11, 1980, following a jury trial, appellant, Darrell Wayne Hill, was convicted and sentenced for capital felony murder (death), kidnapping (50 years), and aggravated robbery (50 years) in connection with offenses against Donald Lee Teague; and for attempted capital murder (life), kidnapping (50 years), and aggravated robbery (50 years) in connection with offenses against E. L. Ward. The 50-year sentences were set to run consecutively to the life sentence.

We affirm the conviction and sentence for capital felony murder but set aside the lesser included offenses of kidnapping and aggravated robbery in connection with offenses against Donald Lee Teague. Ark. Stat. Ann. § 41-105 (1) (a) and (2) (a) (Repl. 1977) prohibit the entry of a judgment of conviction on capital felony murder or attempted capital felony murder and the underlying specified felony or felonies. Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981); Singleton v. State, 274 Ark. 126, 623 S.W. 2d 180 (1981). Generally, this Court will not consider errors raised for the first time on appeal; however, as we stated in Singleton, supra, in death cases we will consider errors argued for the first time on direct appeal where prejudice is conclusively shown by the record and this Court would unquestionably require the trial court to grant relief under Rule 37.

We affirm the convictions and sentences for attempted capital felony murder, kidnapping, and aggravated robbery in connection with offenses against E. L. Ward. The objection that kidnapping and aggravated robbery are offenses included in the offense of attempted capital felony murder was not raised in the lower court. This Court will not consider this issue when raised for the first time on appeal except in death cases. Rowe v. State, 271 Ark. 20, 607 S.W. 2d 657 (1980). Also see Rowe v. State, 275 Ark. 37, 627 S.W. 2d 16 (1982).

I

On February 7, 1980, at approximately 2:00 p.m. appellant drove into E. L. Ward’s Service Station in Pencil Bluff, Montgomery County, in a maroon Thunderbird. Ward checked his radiator and filled his car with gas. At this time Donald Teague, a Game and Fish Commission Officer, drove up, also wanting gas, so Ward went inside the garage to clear the pumps. Appellant, who was waiting inside the garage, pulled a gun on Ward and demanded his money. He then ordered Ward to put the money from the cash register into a money bag along with his wallet. At this time Teague entered the garage, and appellant pointed the gun at Teague, told him to put his billfold in the money bag, and told both men that they were going for a ride. Teague was instructed to drive the car and Ward to bring the money bag. While riding, appellant took the money from Ward’s wallet and put it in his pocket. Teague was forced to drive to a gravel road off of Highway 88. Appellant then had Teague stop the car, marched the men into some weeds, and forced them to lie down with their hands behind them. Appellant shot Teague several times, killing him. Ward begged him to quit shooting, but appellant then shot at Ward four times, wounding him. Ward dropped into the weeds and did not move or speak until appellant had driven away. He then hollered at Teague, who did not respond, so he crawled back to the road. A pulpwood driver found him there later that afternoon. Ward gave the police a description of his assailant and the car he was driving before he was rushed to a hospital in Hot Springs.

That afternoon at 4:05 p.m. law enforcement offices in the surrounding area began receiving NCIC (National Crime Information Center) radio dispatches regarding these crimes. The Hot Springs Police Department broadcast the description of a white male, 45 to 50 years old, medium build, 160 lbs., rough skinned face, black hair, last seen wearing a gray suit with a blue shirt; vehicle and license described as late model Ford Thunderbird, maroon in color, with dark blue or black lettering on a white license plate. The occupant was described as being armed and extremely dangerous.

At 6:25 p.m. Hot Springs Police Officer Buck observed a vehicle matching this description with a white Oklahoma license plate with dark letters going westbound on Grand in Hot Springs; he radioed in that he was following the car. He stopped the vehicle at about the same time Officer Ward arrived to back him up. Officer Buck used a public address system to advise appellant to step out of the car and keep his hands in plain sight. Officer Buck conducted a frisk search of appellant for weapons. Meanwhile, Officer Ward searched the immediate area of the car where appellant had been sitting, finding a brown paper sack containing a loaded Charter Arms .38 Special and a large quantity of coins under the front seat, driver’s side. Appellant was then placed in Officer Buck’s vehicle and transported to the police station at approximately 6:45 p.m. Neither of these officers testified regarding a description of the appellant before he was searched: neither while appellant was inside the car, nor after he was directed to stand behind it.

The evidence as set out above and the positive results of the ballistics tests on the gun found in appellant’s car lead us to conclude that appellant’s convictions were supported by overwhelming evidence of guilt.

II

Appellant argues that the stop and search of his vehicle by the police was unreasonable and that the pistol seized from under the driver’s seat should have been suppressed as the fruit of an illegal search. We disagree. The search of the car was reasonable under the circumstances. Rule 3.1, Ark. Rules Crim. Proc., Ark. Stat. Ann., Vol. 4A (Repl. 1977) provides:

Rule 3.1 Stopping and Detention of Person: Time Limit.
A law enforcement officer lawfully present in any place may, in the performance of his duties, stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit (1) a felony, or (2) a misdemeanor involving danger of forcible injury to persons or of appropriation of or damage to property, if such action is reasonably necessary either to obtain or verify the identification of the person or to determine the lawfulness of his conduct. An officer acting under this rule may require the person to remain in or near such place in the officer’s presence for a period of not more than fifteen (15) minutes or for such time as is reasonable under the circumstances. At the end of such period the person detained shall be released without further restraint, or arrested and charged with an offense. (Emphasis added)

Did the officer reasonably suspect the appellant had committed a felony? Rule 2.1 defines reasonable suspicion as:

[A] suspicion based on facts or circumstances which of themselves do not give rise to the probable cause requisite to justify a lawful arrest, but which give rise to more than a bare suspicion; that is, a suspicion that is reasonable as opposed to an imaginary or purely conjectural suspicion.

The courts have used various terms to describe how much cause or suspicion is necessary or reasonable in order to stop a person or vehicle. The common thread which runs through the decisions makes it clear that the j ustification for ^.h«-inve»t-i-gativ«-&tops..depend...upon whatherT.-u.iade.&-.the totality of the circumstances, the police have specific, particularized, and articulable reasons indicating the person or vehicle may be involved in criminal activity. U.S. v. Cortez, 449 U.S. 411 (1981); Michigan v. Summers, 450 U.S. 905, 101 S. Ct. 2587 (1981); Terry v. Ohio, 392 U.S. 1 (1967).

Here the police had reasonable suspicion to make an investigatory stop of appellant’s late model maroon Ford Thunderbird exhibiting an Oklahoma license plate with a white background and dark letters. The car matched the description of the police broadcast. It was not likely that another vehicle of that description was in the Montgomery-Garland County area at that time. Also, the crimes had just recently been committed in the small community of Pencil Bluff in neighboring Montgomery County.

Since the investigatory stop was justified, the police were then allowed to make a limited search for weapons to protect themselves from attack by a suspect they had every reason to believe was armed and very dangerous. Adams v. Williams, 407 U.S. 143 (1972). Rule 3.4, Ark. Rules Crim. Proc. specifically authorizes a search for weapons in a situation such as existed here:

If a law enforcement officer who has detained a person under Rule 3.1 reasonably suspects that the person is armed and presently dangerous to the officer or others, the officer or someone designated by him may search the outer clothing of such person and the immediate surroundings for, and seize, any weapon or other dangerous thing which may be used against the officer or others. In no event shall this search be more extensive than is reasonably necessary to ensure the safety of the officer or others. (Emphasis added)

This rule is consistent with the rule set forth in Terry v. Ohio, supra, which emphasizes that the purpose of the protective search is wholly for the safety of the police officer:

We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties.

In Terry the Court dealt specifically with a limited protective search of a pedestrian. However, the principles enunciated in that case are wholly consistent with the concept that an automobile’s passenger compartment may be the subject of a limited search, in circumstances such as those presented here, for the protection of officers who otherwise might be endangered. See e.g. United States v. Thomas, 314 A. 2d 464 (D.C. App. 1974).

The search here was completely reasonable when considered under the totality of the existing circumstances. The officers would have taken an unnecessary risk if they had attempted to talk with the appellant before searching him and the accessible areas of his car; removing appellant from his car was a prerequisite to the safety of the officers in making such a search. Although appellant was standing behind the car with his hands on the trunk at the time of the search, the mere fact of appellant’s removal from the car did not remove the possible danger to the officers and thereby obviate the necessity for the search. It was certainly reasonable to believe that a suspect believed to have kidnapped, robbed, and executed a Game and Fish Officer, and, simultaneously, attempted to do the same thing to another person was capable of breaking for a weapon inside his car, and probably would have been highly motivated to do so. Here, the limited search of the car was both “justified at its inception” and “reasonably related in scope to the circumstances which justified the interference in the first place.” Terry v. Ohio, supra.

Ill

Appellant argues that the trial court erred in not granting his motion for a change of venue. Ark. Stat. Ann. § 43-1501 (Repl. 1977) provides:

Any criminal cause pending in any circuit court may be removed... whenever it shall appear... that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had therein.

To prove prejudice in this case appellant introduced four issues of the local newspaper which had carried stories about the crime. Appellant did not allege or prove any television or radio coverage of the crime. At the special hearing on the change of venue appellant also introduced testimony from six witnesses who testified that they did not think defendant could receive a fair trial in Montgomery County. Three witnesses for the State testified that he could. The trial judge specifically found that none of the defense witnessed showed that they were cognizant of prejudice existing throughout the whole county, but merely portions of the county. In Bailey State, 204 Ark. 376, 163 S.W. 2d 141 (1942) we stated that the statute which provides methods of proving prejudice, Ark. Stat. Ann. § 43-1502 (Repl. 1977), contemplates that the witnesses should have fairly accurate information concerning the state of mind of the inhabitants of the entire county.

A motion for a change of venue is directed to the sound discretion of the trial court and is not subject to reversal except for an abuse of that discretion. Rush v. State, 238 Ark. 149, 379 S.W. 2d 29 (1964). Under the facts of this case we cannot say that the trial court abused his discretion.

IV

Appellant argues that the trial court erred in not excusing certain jurors for cause. We recently held in Conley v. State, 270 Ark. 886, 607 S.W. 2d 328 (1980) that in order to preserve this point for appeal appellant must have exhausted his peremptory challenges and must state for the record that there is someone actually sitting on the jury that he would have stricken if he had had another peremptory challenge. Also, it must appear from the record that the trial judge should have excused the juror for cause.

Here, the record reflects that appellant did exhaust his peremptory challenges, and that appellant objected to juror Reed who sat on the jury. However, the trial court was correct in not striking juror Reed for cause. Reed stated on voir dire that she was related to one of the victims in a complicated way, but the record is silent on how close the relationship actually was. Defense counsel’s reason for asking the court to strike her for cause was that she had stated that “Anybody that is brought in is under suspicion either if they are innocent or guilty; they are just as much guilty as they are innocent when you pick them up or they wouldn’t be picked up in the first place.” After this statement, however, the court advised her as to the presumption of innocence. She then stated that she understood the law to be innocent until proven guilty, and said she could follow this law. This juror was sufficiently rehabilitated by the trial court so that we cannot say it was error to not strike her for cause.

Appellant also argues it was error to allow the State to peremptorily challenge two jurors who expressed opposition to the death penalty. These jurors were not excused for cause by the court but were peremptorily stricken by the State. Under such circumstances no explanation is necessary as to why a potential juror is being excused.

V

Appellant argues that the trial court erred in refusing (1) to grant his motion to make the victim, Mr. Ward, talk with defense attorneys, and (2) in refusing to allow defense attorneys to voir dire the sheriff concerning a conversation between the sheriff and a deputy in which the sheriff allegedly stated that “They will probably have me on trial in the morning concerning Mr. Ward.”

The trial court refused to order Mr. Ward to discuss the case with defense counsel, but suggested that the prosecuting attorney furnish to defense counsel the substance of Mr. Ward’s testimony whereupon the prosecuting attorney delivered to defense counsel a statement Mr. Ward had given to the state police. At trial, Mr. Ward testified that no one had told him not to speak with defense counsel. He explained that he had talked to defense counsel over the phone, but that he wasn’t going to tell anyone anything over the phone, and that he wasn’t going to talk to defense counsel unless the prosecuting attorney was present.

We cannot say the trial court abused its discretion in declining defense counsel’s request to compel Mr. Ward to discuss the case with him or in refusing defense counsel’s request to “voir dire” the sheriff regarding his conversation with the deputy. Appellant made no showing as to what information was sought by these motions or that a favorable ruling by the court would materially aid in the preparation of the defense. Nor did appellant show that he was in any way prejudiced by the court’s actions in denying the motions.

VI

Appellant argues that reversible error was committed when a state witness referred to appellant’s prison records during the guilt-innocence phase of the trial. The state’s witness, a psychiatrist with Arkansas State Hospital, testified that his psychiatric diagnosis of appellant was based on personal interviews and various psychological examinations that had been administered to appellant. He was then asked if there were any other tools he used in forming his opinion. He answered, “I did have the results of previous examinations conducted at the Vinita State Hospital. I also had access to his prison records.” Defense counsel moved for a mistrial. The trial court then admonished the jury that they must not consider the witness’s statement.

This cautionary instruction to the jury made harmless any prejudice that may have occurred and this is especially true in view of the overwhelming evidence of guilt. Declaring a mistrial is an exceptional remedy to be used only where any possible prejudice cannot be removed by an admonition to the jury. Cobb v. State, 265 Ark. 527, 579 S.W. 2d 612 (1979). The trial court is granted a wide latitude of discretion in granting or denying a motion for mistrial, and the decision of the trial court will not be reversed except for an abuse of that discretion or manifest prejudice to the complaining party. Brown v. State, 259 Ark. 464, 534 S.W. 2d 207 (1976). Dean v. State, 272 Ark. 448, 615 S.W. 2d 354 (1981).

VII

Appellant argues that the photographs of the bullet wound in Teague’s head should not have been admitted. We disagree. The picture was not shocking or grotesque and was not likely to unfairly prejudice or inflame the jury. The question of admissibility of photographs lies largely in the sound discretion of the trial court. Tanner v. State, 259 Ark. 243, 532 S.W. 2d 169 (1976).

VIII

Appellant argues that the trial court erred in limiting the testimony of Reverend Nixon, a defense witness in the penalty phase of the trial. Reverend Nixon attempted to testify to appellant’s charitable acts which appellant had related to him in a two-hour conference before trial. The trial court sustained the State’s objection to Reverend Nixon’s testimony that appellant wanted to donate a kidney.. The court stated at a bench conference that appellant could testify if he so desired. Counsel for appellant was then encouraged to continue examining the witness, but declined to do so.

Ark. Stat. Ann. § 41-1301 (4) permits the introduction of evidence as to any mitigating circumstances in a capital murder case regardless of its admissibility under the rules of evidence. However, this statute was not designed to create a vehicle for intentional circumvention of the rules of evidence. The rules of evidence should be followed when possible. In this case the witness was available to testify and there was no reason for the admission of this hearsay testimony.

Appellant also argues that Reverend Nixon should have been allowed to testify as to the religious and ethical considerations applicable to the death penalty. Religious and philosophical approaches to the death penalty are not relevant as mitigating evidence. Franklin v. State, 245 Ga. 141, 263 S.E. 2d 666 (1980).

IX

Appellant argues that it was error to allow the State to prove, during the penalty phase, three prior convictions that did not involve threat or violence.

For purposes of sentence enhancement as a habitual offender, the State proved that appellant had been convicted of five prior felonies pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977):

(2) A defendant who is convicted of a felony and who has previously been convicted of four (4) or more felonies, or who has been found guilty of four (4) or more felonies, may be sentenced to an extended term of imprisonment as follows: . . .

Of these five prior convictions the State used two robbery convictions to prove aggravating circumstances under Ark. Stat. Ann. § 41-1301 (Repl. 1977). This statute provides that if a defendant is found guilty of capital murder, the jury may hear evidence as to aggravating circumstances. Prior offenses for purposes of aggravating circumstances are specifically limited by Ark. Stat. Ann. § 41-1303 (Repl. 1977) to offenses involving threat or violence:

Aggravating circumstances. — Aggravating circumstances shall be limited to the following:
(3) the person previously committed another felony an element of which was the use or threat or violence to another person or creating a substantial risk of death or serious physical injury to another person;...

Appellant argues that the jury may have improperly considered the convictions introduced for enhancement purposes, some of which did not involve threat or violence, when they were considering aggravating circumstances. Apparently, appellant’s position is that there should be two separate hearings on sentencing when capital and non-capital offenses are being tried together. This argument has no merit. Our statutes merely provide for a bifurcated procedure under which sentencing is separate from the determination of guilt or innocence. See State v. Greenawalt, 128 Ariz. 150, 624 P. 2d 828 (1981). Furthermore, the court clearly instructed the jury that they were to consider only the two robbery convictions as aggravating circumstances. They were also instructed that the other convictions were to be considered only for enhancement purposes on the charges of robbery, kidnapping, and attempted murder.

Appellant further argues that the court erred in allowing the State to submit the conviction for “unauthorized use of a motor vehicle after former conviction of a felony” for purposes of sentence enhancement under Ark. Stat. Ann. § 41-1001. Appellant argues that this conviction should not have been admitted since there was no proof that appellant was represented by an attorney when he was convicted of the “former felony.” There is no merit to this argument. The record reflects that appellant was represented by an attorney when he was convicted of “unauthorized use of a motor vehicle after former conviction of a felony.” This is the crime that the State used for enhancement purposes. The statute only requires proof of a prior conviction, not the underlying elements of the conviction.

Appellant also argues that the jury may have improperly considered the six findings of guilt that they had just entered as felonies for purposes of enhancement and aggravation during the penalty phase of the trial. We find no merit to this argument. We can assume that the jury understood the court’s instructions and understood the verdict forms which refer to conviction for previous felonies.

We have examined all objections pursuant to Rule 11 (f), Rules of the Supreme Court, Ark. Stat. Ann., Vol. 3A (Repl. 1979) and find no error, cf. Singleton v. State, supra.

Affirmed in part; reversed in part.

Hickman, J.,

concurs. See Singleton v. State, 274 Ark. 126, 623 S.W. 2d 180 (1981).

Holt and Dudley, JJ., concur.

Purtle, J., concurs in part; dissents in part.

Robert H. Dudley, Justice,

concurring. I concur in the result and agree with the reasoning expressed on all but one issue — the search. On that issue the majority opinion sanctions the search of the passenger compartment and the resulting seizure of evidence on the basis of a search incident to an arrest. That part of the holding disregards the Fourth Amendment because an investigatory stop does not require probable cause. In a footnote the majority opinion states that the search also can be justified as a search incident to arrest. That latter reason is the only basis on which this case can be sustained.

“It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v. Ohio, 392 U.S. 1 (1968) quoted in Michigan v. Summers, 450 U.S. 905, 101 S. Ct. 2587 (1981). Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment. Delaware v. Prouse, 440 U.S. 648 (1979). In this case there are two seizures, seizure of the person and seizure of the evidence. The Supreme Court of the United States has treated the two in differing ways. Seizure of the person involves a higher governmental interest than does seizure of evidence. The former allows an official intrusion for the intense governmental interest of protecting the safety of the arresting officer while the latter allows a lesser intrusion based only upon the governmental interest in preventing the concealment or destruction of evidence. The Court has traditionally limited the reach of any Fourth Amendment exception to that which is necessary to accommodate the identified needs of society. Arkansas v. Sanders, 442 U.S. 753 (1979).

The difference between the two seizures is illustrated by stating the general rule for each. An arrest, or seizure of a person, without a warrant is valid only when the arresting officer has reasonable grounds to believe that the arrested person has committed a felony, Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970); United States v. Di Re, 332 U.S. 581 (1948): Johnson v. United States, 333 U.S. 10 (1948), while a seizure of evidence without a warrant is, per se, unreasonable. Katz v. United States, 389 U.S. 347 (1967).

The Supreme Court of the United States has recognized four exceptions, which are material to this case, where warrantless seizures of the person can be based on less than probable cause and still comply with the reasonableness standard of the Fourth Amendment.

First, in Terry v. Ohio, supra, a limited stop and frisk was approved. Second, in Adams v. Williams, 407 U.S. 143 (1972) a stop was approved to investigate an informant’s tip that the person stopped was armed and carrying narcotics. Third, in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), the Court held that border patrol officers may make investigatory stops of vehicles near the country’s borders if there are articulable facts that reasonably warrant a suspicion that the vehicle contains illegal aliens. Fourth, in United States v. Cortez, 449 U.S. 411 (1981), the Court held that police could make an investigatory stop where there is an objective manifestation that the person is, or is about to be, engaged in criminal activity. Again, the investigatory stop does not have to be based on probable cause, it can be based upon the lesser standard of reasonable suspicion. Not one of these cases discussing a warrantless arrest upon only a reasonable suspicion intimates that an accompanying search and seizure of evidence can go beyond protection of the police officer’s safety.

A seizure of evidence without a warrant is, per se, unreasonable. The Supreme Court of the United States has set forth only one narrowly drawn exception where a seizure of evidence can be based on less than probable cause. It is the protective search doctrine set out in Terry v. Ohio, supra, and Adams v. Williams, supra. It authorizes a search of the clothing and that area which is immediately reachable by the arrested person. The basis of this exception is that the arresting officer has every right to assure himself that the person does not have within reach a weapon, although the weapon may be evidence. The rationale of this exception is applicable to an investigatory stop, an arrest, a frisk, or any other seizure. It was applicable to the case before us and the frisk of the appellant was obviously valid. If a gun had been discovered during the frisk, it would have been admissible evidence. However, the appellant had been behind his car, had already been frisked and was about to be placed in the arresting officer’s car when a second officer conducted a search of the interior of appellant’s car. The search of the interior of the car was not necessary for the officer’s protection. It was necessary only to prevent the concealment or destruction of evidence. See A. R. Crim. P. 3.4, Vol. 4A (Repl. 1977).

All cases approving a warrantless search to prevent the concealment of evidence are synthesized with probable cause. Until probable cause is shown the warrantless search is narrowly limited to the governmental interest or protecting the police officer. After the probable cause standard is met the Court has not so narrowly defined the governmental interest and, as a result, the sanctioned area of the search is not as narrow. The Court has stated that a warrantless search of an automobile can be valid where the police have probable cause to believe the vehicle contains evidence of a crime. The governmental interest causing the Court to authorize this exception is the mobility of an automobile and the concealment of evidence. Carroll v. United States, 267 U.S. 132 (1925); Arkansas v. Sanders, supra; Colorado v. Bannister, 449 U.S. 1 (1980).

There is also the “automobile exception” where the scope of a search incident to a lawful custodial arrest, as opposed to investigatory stop, extends over the entire passenger compartment of the automobile in which the person arrested was riding. New York v. Belton, 450 U.S. 1028, 101 S. Ct. 2860 (1981). Generally, however, the scope of a search incident to a lawful arrest is governed by the principles set forth in Chimel v. California, 395 U.S. 752 (1969). These exceptions, based on probable cause, sanction a limited search to prevent the concealment or the destruction of evidence. While this area of search is limited, it is broader than the very narrow area of protective search based only upon reasonable suspicion. The reason is that the higher standard of probable cause allows the sanctioning of a greater governmental interest without violating the reasonableness clause of the Fourth Amendment.

The exceptions announced in Carroll, Arkansas, Colorado, New York and Chimel have two governmental interest bases; first, the need to protect the officer and, second, the need to prevent the concealment or destruction of evidence. The first basis can be authorized by reasonable suspicion, while the second is authorized only when there is probable cause either for the arrest or for believing the vehicle contained evidence of a crime. Yet, the majority opinion sanctions a search to prevent the concealment of evidence, not on arrest and probable cause, but on an investigatory stop and reasonable suspicion. That result is based upon the fallacious assumption that a valid exception to the Fourth Amendment for the seizure of a person on less than probable cause creates a second exception of equal standing for the seizure of evidence. Such a double exception swallows the general rule that Fourth Amendment seizures of evidence are reasonable only if based on probable cause.

In the case before us the police had probable cause to arrest appellant, as opposed to stop to investigate, and that is the only basis upon which the search of the passenger compartment of the automobile can be sustained. I would affirm on that basis. See New York v. Belton, supra.

I am authorized to state that Mr. Justice Holt joins in this opinion.

John I. Purtle, Justice,

concurring in part, dissenting in part. I concur in that part of the majority opinion which affirms the sentence of capital felony murder wherein the penalty was set at death by electrocution. Also, I agree that it is plain error for the court to have sentenced the appellant to the lesser included offense of kidnapping and aggravated robbery in connection with the death of Donald Lee Teague.

I dissent from that part of the majority opinion which fails to apply the plain error rule to the lesser included charges in the case involving E. L. Ward. For the Ward episode the court sentenced the appellant for attempted capital murder, kidnapping and aggravated robbery. Although it is a mystery how he is going to serve any of these sentences if he is put to death, I nevertheless would like to see the record kept straight. By failing to recognize plain error at this time we are simply prolonging this case because we know with absolute certainty that the case is going to come back to us under a Rule 37 Petition and in all likelihood another full appeal. If we follow our present opinions, we will at that time set aside these sentences just as we finally did in the case of Rowe v. State, 275 Ark. 37, 627 S.W. 2d 16 (1982). We had also corrected the matters in Swaite v. State, 272 Ark. 128, 612 S.W. 2d 307 (1981); Singleton v. State, 274 Ark. 126, 623 S.W. 2d 180 (1981); and Earl v. State, 272 Ark. 5, 612 S.W. 2d 98 (1981).

Because of the foregoing reasons I would correct the sentence imposed in this case by deleting the convictions of aggravated robbery and kidnapping with regard to the offenses against E. L. Ward as we did with the same charges relating to the offenses against Donald Lee Teague.

ERRATA 275 ARKANSAS REPORTS at page 80 Detach at perforation, moisten the back, and paste over the fifth line of the first full paragraph on page 80 of Hill v. State: the investigative’stops depends upon whether, under the

      Officer Ward testified at the hearing on the motion to suppress that, as soon as appellant got out of the car, both he and Officer Buck immediately recognized him as fitting the description of the suspect as broadcast over the police radio. The search, therefore, was justified as being incident to an arrest and permissible under New York v. Belton, 450 U.S. 1028, 101 S. Ct. 2860 (1981).

      In instances where a person is arrested in an automobile, New York v. Belton, supra, standardized the concept of what is the immediate surrounding area for the purpose of a protective search to include the entire passenger compartment of the automobile in which the person arrested was located. Since the purpose of the protective search is for the safety of the police officer, the rationale of Belton must be equally applicable to searches of automobiles after investigatory stops even though, as in Belton, the suspect is no longer inside the automobile.

      ERRATA 275 ARKANSAS REPORTS at page 80 Detach at perforation, moisten the back, and paste over the fifth line of the first full paragraph on page 80 of Hill v. State: the investigative’stops depends upon whether, under the


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Bertha BURDEN v. Reuben HAYDEN, Superintendent of Lavaca School District et al
    81-171
    627 S.W. 2d 555
    Supreme Court of Arkansas
    Opinion delivered February 8, 1982

      Cearley, Gitchell, Mitchell ir Bryant, P.A., for appellant.

      Daily, West, Core, Coffman ér Canfield, by: Ben Core, for appellees.
   George Rose Smith, Justice.

The appellant, a school teacher, had been employed annually by the Lavaca School District for four years before the school board voted not to renew her contract at the end of the 1977-1978 school year. After a public hearing held at Mrs. Burden’s request the board voted to allow its non-renewal decision to stand. At that time the statutes did not provide, as they do now, for an appeal to the circuit court. Ark. Stat. Ann. § 80-1264.9 (b) (Repl. 1980). Hence in December 1978 Mrs. Burden filed this suit against the district, its superintendent, and its board members, seeking a declaratory judgment holding that the non-renewal of her contract was unlawful. She also asks for reinstatement, back pay, and damages. This appeal is from a judgment sustaining a demurrer to the complaint and dismissing the action. Our jurisdiction is based on Rule 29 (1) (c).

At the outset we point out that this case is not controlled by Fullerton v. Southside Sch. Dist., 272 Ark. 288, 613 S.W. 2d 827 (1981); Maxwell v. Southside Sch. Dist., 273 Ark. 89, 618 S.W. 2d 148 (1981); and more recent cases. Under the statutes and district policies considered in those cases a nonprobaticnary teacher was entitled to a statement of the reasons for a proposed non-renewal and to a hearing before the board reached its decision not to renew. §§ 80-1264.3 and -1264.8. Those statutes and policies, however, had not yet been adopted when Mrs. Burden’s contract expired. Unfortunately the disposition of her case has been seriously delayed, mainly because the circuit judge took it under advisement and did not announce his decision until some 21 months after the last brief had been filed.

Mrs. Burden’s complaint is detailed. It asserts that the district “totally failed” to comply with its policies, but her complaint itself, with its exhibits, contradicts that sweeping allegation. On April 11 the superintendent notified Mrs. Burden that non-renewal of her contract was warranted. She had five days in which to request a hearing by the superintendent, but she took no action until the sixth day, on which the board decided not to renew. On that same day Mrs. Burden made a written request for the reasons for non-renewal and for the names of witnesses against her and the nature of their testimony. Five reasons were given to her, but no witnesses’ names were supplied. When she then requested a hearing before the board, the superintendent set a date for the hearing and explained, we think correctly, in his letter that the hearing was an opportunity for her to present her reasons for renewal, “not a trial or cross-examination of the board.” After the requested public hearing the board notified Mrs. Burden that its members had unanimously voted to allow the non-renewal decision to stand. This suit was filed some six months later.

The statute then in force (Act 74 of 1970, §§ 3 and 4), as well as the district’s policies, contemplated that a teacher’s right to request the reasons for non-renewal and to ask for a hearing by the board did not arise until after the board’s decision not to renew. Here there was substantial compliance with those requirements, which is all that is necessary. Fullerton, supra. Since the hearing was not to be held until after the board had already decided not to renew, the purpose of the hearing was necessarily to permit, and only to permit, the teacher to present her reasons for renewal before the board’s decision became final. That opportunity was provided to Mrs. Burden. Indeed, the district’s only real failure to track the statute and its policies lay in the fact that Mrs. Burden was apparently not afforded three conferences in which to assert her views to an administrative official of the district after it had first become apparent that her teaching was not satisfactory.. Her complaint, however, does not specifically mention that omission, much less narrate facts giving it substantive importance.

Finally, the complaint asserts that under federal law, 42 U.S.C. § 1983, Mrs. Burden has a cause of action for a denial of her rights under the due process clause of the Constitution. As we read the cases, however, a teacher who has only a one-year contract without tenure or a vested right to renewal cannot ordinarily assert a taking of liberty or property if the contract is not renewed. Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1982); Perry v. Sindermann, 408 U.S. 593 (1972); Marion County Rural Sch. Dist. No. 1 v. Rastle, 265 Ark. 33, 576 S.W. 2d 502 (1979). The court did, in Roth, mention the possibility that a failure to rehire a teacher might interfere with his liberty if it damaged his standing in the community or imposed a stigma or other disability foreclosing his freedom to obtain other employment. Here, however, the board’s reasons for not renewing Mrs. Burden’s contract were not of that type and were not publicized. The board offered her a private hearing, but by demanding a public hearing she herself created the possibility that her asserted deficiencies might become a matter of record. In that situation there was no deprivation of her liberty. Cato v. Collins, 539 F. 2d 656 (8th Cir.1976).

Affirmed.


author: Frank Holt, Justice.

text:
    A. M. SEAWRIGHT, Jr. v. UNITED STATES FIDELITY AND GUARANTY CO., et al
    81-148
    627 S.W. 2d 557
    Supreme Court of Arkansas
    Opinion delivered February 8, 1982

      Frederick S. “Rick” Spencer, for appellant.

      Bill H. Walmsley, for appellees.
   Frank Holt, Justice.

This appeal is from a circuit court’s order granting appellee’s motion to dismiss appellant’s complaint because of the exclusive remedy provisions of the Workers’ Compensation Law, Ark. Stat. Ann. § 81-1304 (Repl. 1976) and for failure to state a cause of action. Appellant insists the court erred in holding the Act as being the exclusive remedy for the asserted fraudulent conduct of the insurer inasmuch as the employer-insured was also the husband of the claimant. Therefore, the court erred in dismissing his complaint as not stating a cause of action.

The appellant, the insured, brought this independent action against appellee, his insurance carrier, for fraud or deceit, bad faith in tort, breach of a fiduciary relationship and intentional interference with a protected property interest in handling a workers’ compensation claim. Appellee had accepted the claim of appellant’s employee-wife as a compensable one, paying only certain medical expenses. However, it is alleged that the appellee’s agent fraudulently misrepresented the extent or scope of the insurance coverage to appellant employer. As a result of the fraudulent misrepresentation, the appellant and his wife were lulled into not filing a claim for additional benefits within the statute of limitations to the detriment of the employee-wife and also to the detriment of her husband, the insured employer. He alleged that he had sustained substantial compensable losses which included workers’ compensation benefits; i.e., his wife’s past and future medical, hospital and disability benefits. Also, he had suffered “other economic losses” in amounts not fully ascertained and reserved the right to amend his complaint according to the proof.

This separate action by appellant was filed while his wife’s claim for additional benefits was pending before the Workers’ Compensation Commission. The Court of Appeals affirmed the Commission’s finding that her claim for additional benefits was barred by the statute of limitations and there was nothing in the record to “show that the appellee insurance carrier, because of something it had done or failed to do, caused the appellant [wife] to fail to timely file her claim with the Arkansas Workers’ Compensation Commission.” Seawright v. Seawright Super Saver et al, 1 Ark. App. 26 (1981).

Here, appellant argues that he is bringing this action for fraud and deceit as the employer-insured; therefore, his cause of action is not barred by the exclusive remedy provisions of the Workers’ Compensation Law. § 81-1304, supra. That section provides:

The rights and remedies herein granted to an employee ... on account of injury or death, shall be exclusive of all other rights and remedies of such employee, his legal representative, dependents, or next of kin, or any one otherwise entitled to recover damages from such employer ....

Clearly, this act provides an exclusive remedy to recover damages from an employer based on an employee’s injury. Odom v. Arkansas Pipe & Scrap Material Company, 208 Ark. 678, 187 S.W. 2d 320 (1945). This type of statute is generally inclusive of common law rights. Larson, Workmen’s Compensation Law, Vol. 2A, § 66.00, p. 12-20.

The Workers’ Compensation Law provides coverage for employees for “accidental injury arising out of and in the course of employment ....”§ 81-1302 (d). Under the statute the primary obligation to pay compensation is on the employer, who is required at his peril to carry a policy of insurance. Ark. Stat. Ann. § 81-1304 (Repl. 1976). For reasons of public policy there is an essential unity between the employer and his compensation insurance carrier. Otherwise the employee might have two cases to litigate, one to establish the employer’s substantive liability and the other to show that the insurer’s policy covered that liability. Empire Life & Hosp. Ins. Co. v. Armorel Planting Co., 247 Ark. 994, 449 S.W. 2d 200(1970). In the case at bar the policy is not in the record, but in the usual form such a policy insures only the employer’s liability as an employer, not as an individual. That liability on the part of the appellant was discharged when his employee’s claim was barred by limitations. Any liability he may have had as a husband, not as an employer, is not shown by the complaint to be within the policy, it being affirmatively alleged that the policy was issued pursuant to the Worker’s Compensation Law. The appellant’s general liability as an individual might be covered by some form of insurance. However, it is not shown to be covered by the appellee’s policy. We hold the court correctly dismissed appellant’s complaint for failure to state a cause of action.

Neither do we agree with the appellant that§ 81-1304 is unconstitutional nor is it unconstitutionally applied here. See Seawright v. Seawright Super Saver et al, supra; Hagger v. Wortz Biscuit Co., 210 Ark. 318, 196 S.W. 2d 1 (1946); and Young v. G. L. Tarlton Contractor, Inc., 204 Ark. 283, 162 S.W. 2d 477 (1942).

Affirmed.


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

text:
    John W. CAIN, D.P.M. v. ARKANSAS STATE PODIATRY EXAMINING BOARD
    81-186
    628 S.W. 2d 295
    Supreme Court of Arkansas
    Opinion delivered February 8, 1982
    [Rehearing denied March 15, 1982.]

      Gary K. Hoffman of Brown and Fox, P.C., Kansas City, Mo., and Robert L. Robinson, Jr. of House, Holmes ir Jewell, P.A., of Counsel to Brown and Fox, for appellant.

      Steve Clark, Atty. Gen., by: Robert R. Ross, Deputy Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The Arkansas State Podiatry Board revoked the license of John W. Cain, a podiatrist, to practice in this state. He appealed that decision to the Circuit Court of Pulaski County and the court found substantial evidence to support the Board’s findings and affirmed its decision. Cain raises six arguments for reversal on appeal, five of which relate to questions of law. The sixth challenges the sufficiency of the evidence before the Board. None of the five questions of law were presented to the circuit court and the circuit court did not rule on them. Therefore, we may not consider them on appeal.

Dr. Cain is a resident of Bella Vista and has offices in Bentonville, Arkansas and Joplin, Missouri. He is licensed to practice podiatry in four states. Several complaints against him were filed with the State Podiatry Board and in 1979 the Board notified Dr. Cain that a hearing would be held on his treatment of four patients. The Board met on three separate occasions and heard testimony in this matter. Two of Dr. Cain’s patients testified, Mr. Ernest Staudt and Charles Tosch. Dr. Daniel Taylor, a podiatrist who formerly practiced in Newport, Arkansas, and Dr. Carl Kendrick, an orthopedic surgeon, testified for the state. Marsha Clay-brook, an employee of Blue Cross-Blue Shield, testified regarding claims submitted by Dr. Cain. Four expert witnesses, all podiatrists, testified on behalf of Dr. Cain. The Board requested, and counsel for Dr. Cain stipulatéd, that the records of twelve patients would be submitted to the Board for their study and consideration. Dr. Cain has been represented by three different attorneys in this matter. At his first two hearings he was represented by Mr. William R. Wilson of Little Rock. At his third hearing and on his appeal to the circuit court he was represented by Mr. Bob Scott of Little Rock. On this appeal he is represented by a firm from Kansas City, Missouri.

At the conclusion of the Board hearings, it found that Dr. Cain committed malpractice and failed to comply with a sufficient standard of care in the treatment of Mr. Ernest Staudt. The Board further found that Dr. Cain failed to maintain proper records of procedure and medication for his patients in violation of the rules and regulations of the board and Arkansas law.

Mr. Ernest Staudt of Rogers, Arkansas, an employee of Union Carbide, testified that he first went to Dr. Cain with a problem regarding his foot. He said that Dr. Cain told him his big toe needed straightening, that it would be a simple matter, and that he should be back to work in about three days. Staudt stated that he made arrangements so that he would not miss any work. He said before the operation he was asked to sign a consent form which was blank. He testified that he did not know his toe would be operated on until he was in Dr. Cain’s office and he realized that the doctor was using a kind of drill on his toe. He went back to Dr. Cain twice a week for over four months and said that he regularly complained of pain and discomfort. He said that each time the doctor would simply remove a bandage which would be bloody and replace it with a clean one. After Staudt’s complaints of pain the doctor prescribed some medication for him. In October of 1979, Staudt consulted another doctor and was referred to Dr. Taylor, a podiatrist in Newport. Dr. Taylor advised him that the operation he had was not successful and he had two choices. Staudt chose the treatment that would require a bone graft and it was performed by Dr. Taylor. Some post-operative work was done by Dr. Kendrick of Fayetteville since he was nearby and more available to Mr. Staudt who lived in nearby Rogers.

Dr. Cain conceded in his testimony that he did not note in Staudt’s medical records that he had prescribed the drug Dolene, which is a “sister” to Darvon. He also conceded that he did not prepare an operative report on the operation. In fact, the record on Mr. Staudt simply shows the days over several months that he visited Dr. Cain. Dr. Cain denied that the consent form was signed in blank and said his nurse had filled in the form. He conceded that he had told Mr. Staudt that he would “straighten” the big toe but said he went into detail with him about the operation. He denied that the toe was bloody each time Staudt came back but conceded that Staudt complained of pain and that he prescribed the Dolene for the pain. Dr. Cain and his counsel both conceded that the records in Staudt’s case were not adequate.

Dr. Taylor, a podiatrist, who at the time of the hearings was practicing at the Veteran’s Hospital in Milwaukee, Wisconsin, testified that Dr. Cain used the wrong procedure, that the second toe instead of the great toe should have been treated. Dr. Kendrick, although an orthopedic surgeon, was not qualified as an expert witness in podiatry; but he was allowed to testify that the procedures used by Dr. Cain were not satisfactory. Dr. Kendrick said that he and the president of the county medical society visited Dr. Cain about complaints that had been made about his operations and procedures.

Miss Marsha Claybrook, an employee of Blue Cross-Blue Shield, testified that because of Dr. Cain’s numerous claims it was decided that all of his claims to Blue Cross-Blue Shield would be placed on a “one hundred percent review”. That is, everything that was sent in in Dr. Cain’s name was to be reviewed by a doctor before he was paid. The reason given was that his procedures exceeded the normal in several categories. For example, in one quarter his claims for x-rays of the foot were 200% above the normal for x-rays by a podiatrist. On his osteectomies his percentage was 1,400% above normal. In urinalysis during one quarter he was 2,751% above normal. She said, however, that there had been no evidence of any fraud in his claims.

Of the twelve patients’ records which Dr. Cain submitted to the Board, the Board found that ten of those records did not contain any record of the treatment of the patient but only records of insurance claims. This was not disputed.

Dr. Cain called four witnesses who were podiatrists and they all testified that Dr. Cain used proper procedures and was not guilty of any malpractice in the treatment of Staudt. Dr. Don S. Pritt, one of those witnesses, testified that he had been in practice for twenty-five years and had known Dr. Cain for many of those years. He said that Dr. Cain had an excellent reputation as a podiatrist. Through personal observations he knew that Dr. Cain acted with extreme care both before and after an operation. Dr. Albert R. Brown, a podiatrist, licensed in six states and a Canadian province, and chief podiatrist at Elliott General Hospital in Detroit, Michigan for a number of years, testified that there were at least twenty different procedures that could have been used on Staudt and the procedure chosen by Dr. Cain was appropriate.

After the third hearing in this matter and after the Board had issued its findings of fact and conclusions of law, Cain’s attorney at his third hearing, Mr. Bob Scott, filed a petition for review with the Pulaski County Circuit Court. Nowhere in that petition is any question raised regarding any legal issue. It simply asks that the circuit court review the findings of the Board. The circuit court heard further testimony from Dr. Cain which, essentially, regarded his experience and reputation. After that, the court issued two relevant findings: There was substantial evidence to support the Board’s findings and the Board did not act arbitrarily.

At no time did Dr. Cain’s counsel argue to the circuit court that there was anything improper in the notice to Dr. Cain, the board had no authority to act as it did or any impropriety existed except the substantiality of the evidence. Now on appeal, for the first time, five legal arguments are raised with regard to why the circuit court’s judgment should be reversed and the Board’s findings dismissed. First, it is argued that Ark. Stat. Ann. § 72-307 (Repl. 1979) specifically defines what “grossly unprofessional” conduct is, and it does not include the misconduct attributed to Dr. Cain by the Board. While it is conceded the Board has authority to promulgate rules and regulations, it is argued these rules cannot exceed the limits of Ark. Stat. Ann. § 72-307. Second, it is argued that the Board’s rules and regulations had not been filed in the Circuit Court of Benton County as required by law and were therefore ineffective. The record reflects that they were filed with the Secretary of State and mailed to the Benton County Circuit Clerk but not filed. A copy of them was provided to counsel for Cain before the first hearing. Third, it is argued that Cain was denied a fair and impartial hearing because some of the Board members were prejudiced as evidenced by their questions during the hearing. At the third hearing counsel for Cain invited the Board to ask all the questions rather than use the usual format of counsel asking questions. Fourth, it is argued that a fair notice was not given to Dr. Cain because he was not notified that any inquiry would be made regarding medical records. His counsel at the first two hearings stipulated that twelve records could be considered by the Board. Fifth, it is argued that Ark. Stat. Ann. § 72-307 requires that both unprofessional conduct and dishonest conduct must be found, and since the Board found no dishonest conduct the findings must fail. Finally, it is argued there was no substantial evidence to uphold the Board’s order.

Since the only issue presented to the circuit court was that of substantial evidence, that is the only issue we can consider on appeal. Wilson v. Lester Hurst Nursery, Inc., 269 Ark. 19, 598 S.W. 2d 407 (1980); Sweeney v. Sweeney, 267 Ark. 595, 593 S.W. 2d 21 (1980); Jones v. Reed, 267 Ark. 237, 590 S.W. 2d 6 (1979). Considering that issue, we recognize that it is the duty of an administrative board, such as the Podiatry Board, to hear the evidence, decide the credibility of witnesses and make findings of fact. Terrell Gordon v. Gordon L. Cummings, 262 Ark. 737, 561 S.W. 2d 285 (1978); Arkansas Savings & Loan Association Board v. Central Arkansas Savings & Loan Association, 256 Ark. 846, 510 S.W. 2d 872 (1974).

Our review of an administrative decision is to be based on the entire record, not merely on that evidence that supports the administrative ruling. In that review the record must reflect substantial evidence for the Board’s findings. White County Guaranty Savings & Loan v. Farmers & Merchants Bank of Des Arc, 262 Ark. 893, 562 S.W. 2d 582 (1978). But it is not the place of the circuit court or us to substitute our judgment for that of the Board as to the facts.

It is not undisputed that the records were inadequate. The Board chose to believe Mr. Staudt and the witnesses called by the state regarding the malpractice finding and certainly there is substantial evidence in the record to support that finding.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I must dissent from the majority opinion for several reasons. First is that the findings of the Board did not comply with the terms of the applicable statute. Under Ark. Stat. Ann. § 72-307 (Repl. 1979), before revoking a license the Board must find a podiatrist to be guilty of grossly unprofessional and dishonest conduct. No such findings were made in this case. The words of the statute should be interpreted in their accepted meaning in common language. Hicks v. Arkansas State Medical Board, 260 Ark. 31, 537 S.W. 2d 794 (1976). Therefore, the findings are insufficient to allow the Board to revoke the license of the appellant. Ark. Stat. Ann. § 72-307 (a) states in part:

The words “unprofessional and dishonest conduct” shall be held to mean: The wilful betrayal of a professional secret, having professional connections with, or lending the use of one’s name to an unregistered podiatrist, or having professional connection with any one who has been convicted in any court of any criminal offense whatsoever; being guilty of offense involving moral turpitude, habitual intemperance, or being habitually addicted to the use of morphine, opium, cocaine or other drugs for other use than legal and legitimate purposes.

Another matter which was wrong with the proceeding below was that the rules had not been filed in the Circuit Court of Benton County as required by law. The Board should at least be expected to comply with the law itself before taking away the license of any person engaged in the practice of podiatry.

I realize that the majority is correct in holding that our review on administrative decisions is based on the entire record and that the record must reflect substantial evidence to support the findings of the Board. White County Guaranty Savings & Loan Ass’n. v. Farmers & Merchants Bank of Des Arc, 262 Ark. 893, 562 S.W. 2d 582 (1978). However, in the present case four podiatrists testified on behalf of the appellant and two of them testified that appellant used extreme care both before and after operations. Summed up, the testimony of the four podiatrists called on behalf of the appellant was highly favorable to him. No place in the record do I find any statement that the appellant was guilty of dishonesty. Therefore, it is my opinion that there is no substantial evidence upon which to base a finding that the appellant was guilty of “grossly unprofessional and dishonest conduct. ” Consequently I would reverse and dismiss.


author: Darrell Hickman, Justice.

text:
    Charles RAGLAND, Commissioner of Revenues, Department of Finance & Administration v. ARKANSAS VALLEY COAL SERVICES, INC.
    81-189
    627 S.W. 2d 559
    Supreme Court of Arkansas
    Opinion delivered February 8, 1982

      Kelly S. Jennings, for appellant.

      Bethell, Callaway is Robertson, by: Bruce H. Bethell, for appellee.
   Darrell Hickman, Justice.

The question presented is whether machinery used by the appellee, Arkansas Valley Coal Services, Inc., to crush and blend coal qualifies for an exemption allowed by Arkansas’s compensating (or use) tax law. Ark. Stat. Ann. § 84-3106 (D) (2) (Repl. 1980). The statute exempts equipment or machinery directly used in manufacturing and specifies mining as a type of manufacturing. Arkansas Valley paid a use tax of $2,383.14 under protest. The trial court held that Arkansas Valley was an integral part of the coal mining industry within the meaning of the statute and therefore entitled to the exemption. We disagree.

The facts are undisputed. Arkansas Valley buys coal from mining companies, crushes and blends it, and then sells it to steel mills. Arkansas Valley argues that when they crush and blend coal they are converting a raw material into a useable and salable product, a process that would be included in the ordinary meaning of “manufacturing.” However, our cases have held that merely putting raw material into a marketable form is not manufacturing. In Scurlock v. Henderson, 223 Ark. 727, 268 S.W. 2d 619 (1954), we held that cotton ginning was not manufacturing. In Gaddy v. Hummelstein Iron & Metal, Inc., 266 Ark. 1, 585 S.W. 2d 1 (1979), we said that a scrap metal dealer who bought scrap metal, cleaned and sorted the different kinds of metal, compressed it into cubes and sold it, was not a manufacturer. In Hummelstein we elaborated on the rule applied in Scurlock:

The controlling principle, as we see it, is simply that the cotton ginner begins and ends with the same commodity, cotton, in an unmanufactured form, just as the appellee begins and ends with scrap metal that is yet to be made into something else.

Arkansas Valley’s process does not change the essential identity of the coal. The coal is simply crushed and blended. It is a salable product when Arkansas Valléy buys it and merely crushing it into smaller pieces for use as fuel is not “manufacturing.” As the United States Supreme Court confirmed in East Texas Motor Freight Lines, Inc. v. Frozen Foods Express, 351 U.S. 49 (1955):

Manufacture implies a change, but every change is not manufacture, and yet every change in an article is the result of treatment, labor and manipulation. But something more is necessary, . . . There must be a transformation; a new and different article must emerge, having a distinctive name, character or use.

The admitted facts preclude any finding that Arkansas Valley is engaged in “mining” within the meaning of the Statute. BLACK’S LAW DICTIONARY (5th ed. 1981) defines “mining” as “the process or business of extracting from the earth the precious or valuable metals either in their native state or in their ores.” Arkansas Valley buys the coal, it does not mine it.

A taxpayer must clearly establish his right to an exemption. If there is any doubt as to that right, the exemption must be denied. S.H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W. 2d 178 (1980); Gaddy v. Hummelstein Iron & Metal, supra. Arkansas Valley has not clearly established its right to the exemption allowed by Ark. Stat. Ann. § 84-3106 (D) (2).

Reversed.

       The statute then in effect, Act 487 of 1949, § 6, was amended in 1955, after Scurlock v. Henderson, to specifically include cotton ginning as a form of manufacturing. The case, nevertheless, provides guidelines helpful in determining what constitutes manufacturing.


author: John I. Purtle, Justice.

text:
    Charlene STOKES, Widow of Carl STOKES v. Ronald E. STOKES, Executor of the Estate of Carl J. STOKES, Deceased
    81-192
    628 S.W. 2d 6
    Supreme Court of Arkansas
    Opinion delivered February 8, 1982
    [Rehearing denied March 8, 1982.]

      Jonathan P. Shermer, Jr., for appellant.

      Richard L. Peel, for appellee.
   John I. Purtle, Justice.

Carl J. Stokes died testate on January 15, 1979. His widow, Charlene, subsequently filed an election in probate to take against the will pursuant to Ark. Stat. Ann. § 60-501 et seq. (Repl. 1971). Her election was upheld by the probate court but on appeal to this court we declared the statutes unconstitutional. Stokes v. Stokes, 271 Ark. 300, 613 S.W. 2d 372 (1981). On April 29, 1981, the widow filed a new election for assignment of dower pursuant to Act 714 of 1981, codified as Ark. Stat. Ann. § 60-501 (Supp. 1981). The probate court dismissed her second election petition. At the same time the court dismissed a petition by the executor for an accounting on certain properties which were being managed by the widow as well as a third party complaint which had been filed by the widow.

The widow appeals from the order rejecting her election to take against the will, and the executor cross-appeals from the order refusing to require an accounting by the widow. We affirm both on direct and cross-appeal.

On February 23,1981, we declared unconstitutional the original statute under which the widow claimed. Subsequently the legislature enacted a new statute which was not gender based and allowed a widow to take the same as she could have taken under the old statute. Act 714, under which the widow presently claims, was enacted by the legislature on March 25, 1981. In Huffman v. Dawkins, 273 Ark. 520, 622 S.W. 2d 159 (1981), we held that Act 714 cannot be applied retroactively. Appellant’s claim arose prior to enactment of Act 714 and she cannot prevail under her present claim. We have previously declared the statute under which she claimed her first election to be unconstitutional. Therefore, the appellant is not entitled to dower rights from the estate of Carl J. Stokes.

On the cross-appeal we are unable to hold the judge was clearly erroneous. It appears from the abstract and briefs that the petition in probate for accounting by the executor and the third party complaint by the widow were dismissed without prejudice to have the matters heard in the chancery court. Chancery court has the power to have an accounting even though it could have been had in the probate court where the matter was pending. Ark. Stat. Ann. § 62-2004 (b) (Repl. 1971).

Affirmed on direct and cross-appeal.


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

text:
    Carrie Jean SPENCER v. Monroe Carl SPENCER
    82-4
    627 S.W. 2d 550
    Supreme Court of Arkansas
    Opinion delivered February 8, 1982

      Marsha L. Choate, for appellant.
    G. Alan Wooten and Toni Swift-Nolan, of Warner ér Smith, for appellee.
   John I. Purtle, Justice.

Appellant filed suit for divorce and appellee counterclaimed for a divorce. At the commencement of the trial the appellant amended her complaint to ask for separate maintenance. The trial court rejected appellee’s complaint for a divorce and granted appellant a decree of divorce from bed and board only. The property rights were divided in accordance with Ark. Stat. Ann. § 34-1214 (Supp. 1979).

Appellant appeals on the ground that the chancellor erred in granting her a divorce from bed and board and in making disposition of the property. We agree with the appellant that the chancellor was incorrect in awarding a decree from bed and board only. The appellee brought a cross-appeal and argued that he should have been granted a divorce. We disagree with appellee’s contention that he should have been granted a divorce on the evidence presented.

The facts in this case are relatively unimportant and not in dispute. Appellee clearly failed to prove his case for divorce, and the appellant obviously proved she had the right for divorce. The question before this court is whether the chancellor erred in awarding a greater degree of divorce than the appellant sought; also, whether or not property may be distributed under the statute when less than an absolute divorce is granted.

Ark. Stat. Ann. § 34-1202 (Supp. 1981) gives the chancery court power to dissolve and set aside a marriage contract not only from bed and board but from the bonds of matrimony. This portion of the statute has been in effect for many years. We held in the case of Womack v. Womack, 247 Ark. 1130, 449 S.W. 2d 399 (1970), that the statute gave chancery court the inherent authority under the broad powers of equity to grant a decree of separate maintenance. Although there is no statutory authority for such, we have continued to hold that it is within the power of the chancery court to grant a decree of separate maintenance. Prior to Act 705 of 1979, Ark. Stat. Ann. § 34-1214 provided: “In every final judgment for divorce from the bonds of matrimony...” the property rights were to be disposed of by the court. The present act as amended states: “At the time a divorce decree is entered...” the property shall be divided in accordance with the formula set forth therein. We have been unable to find any case holding that property rights are to be adjudicated upon the rendition of a decree of separate maintenance. We held in the recent case of Mooney v. Mooney, 265 Ark. 253, 578 S.W. 2d 195 (1979), that the property belonging to the parties could not be divided unless a divorce was granted.

In the present case the record clearly shows that appellant, with the consent of the court and knowledge of the appellee, amended her complaint to seek only separate maintenance. Therefore, we think this is the only type of decree which could have been entered in the present case. We are not unmindful of the fact that the appellant’s solicitor prepared and approved it as to form. However, it is customary for one of the parties’ solicitors to be requested to prepare the decree. This is not binding to the extent that it would prevent an appeal from that order even though it had been approved as to form by the appellant.

In view of the fact that the court did not have the authority to dispose of the property rights the case is remanded with directions to enter an appropriate order of a decree of separate maintenance.

Reversed and remanded.

Dudley, J., concurs.

Robert H. Dudley, Justice,

concurring. I concur, but I feel that there may be a law student or a young lawyer who does not understand the distinctions in the three causes of action discussed in the majority opinion. It is for that person that I set out the differences:

1. An absolute divorce, or divorce from the bonds of matrimony or divorce a vinculo matrimonii, is a statutory action based on the grounds set out in Ark. Stat. Ann. § 34-1202 (Supp. 1981). Property must be divided upon granting an absolute divorce. § 34-1214 (Supp. 1981). Corroboration is required in contested cases. §§ 34-1207 and 34-1207.1 (Repl. 1962 and Supp. 1981).
2. A limited divorce, or a divorce from bed and board, or a divorce a mensa et thoro, is a statutory action based on the same grounds as those specified for an absolute divorce. Lytle v. Lytle, 266 Ark. 124, 583 S.W. 2d 1 (1979). Property must be divided upon the granting of a divorce. § 4, Act 799 of 1981. Corroboration is required, § 34-1207 and§ 34-1207.1, but see, Mason v. Mason, 248 Ark. 1177, 455 S.W. 2d 851 (1970).
3. An independent cause of action will lie for alimony. Reference is made to the action by Ark. Stat. Ann. § 34-1201 (Repl. 1962) but it is maintained under the broad power of equity. Wood v. Wood, 54 Ark. 172, 15 S.W. 459 (1891). There are no meaningful distinctions between the action for alimony and today’s action for separate maintenance. See Rosenbaum v. Rosenbaum, 206 Ark. 865, 177 S.W. 2d 926 (1944). In an action for separate maintenance it is unnecessary to establish statutory grounds, all that must be established are a separation and an absence of fault. Hill v. Rowles, Chancellor, 223 Ark. 115, 264 S.W. 2d 638 (1954). In a suit for separate maintenance there is no statutory requirement for corroboration. Gilliam v. Gilliam, 232 Ark. 765, 340 S.W. 2d 272 (1960). Property cannot be divided in a separate maintenance proceeding although possession may be awarded. Child custody actions between parents are actions derivative of divorce or separate maintenance. There is no independent cause of action by one parent against the other solely for child custody. Robins v. Arkansas Social Services, 273 Ark. 241, 617 S.W. 2d 857 (1981).

      Section 4 of Acts 1981, No. 799, read: “It is hereby found and determined by the General Assembly that under the present Arkansas law, there is no provision for a ‘decree of legal separation’; that since there is no such provision, paragraph (3) of subsection (B) of Section 461 of the Civil Code as amended by Act 705 of 1979 actually has no application; that in a recent decision, the Arkansas Supreme Court carefully distinguished the proof requirements of absolute divorce and divorce from bed and board; that this Act is designed to clarify paragraph (3) of subsection (B) of Section 461 of the Civil Code, as amended, to specifically make the provisions thereof with respect to the division of property applicable not only in decrees of absolute divorce but also the decrees of divorce from bed and board; that this Act should be given effect immediately to render the provisions of present property division law compatible with the divorce law and cases. Therefore, an emergency is hereby declared to exist and this Act being necessary for the immediate preservation of the public peace, health and safety shall be in full force and effect from and after its passage and approval.” Approved March 28, 1981.


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

text:
    Cloyd H. BARNES v. Mary K. BARNES
    81-179
    627 S.W. 2d 552
    Supreme Court of Arkansas
    Opinion delivered February 8, 1982

      Bill Walters, of Walters, Davis & Cox, P.A., for appellant.

      Rex M. Terry, of Hardin, Jesson & Dawson, for appellee.
   Robert H. Dudley, Justice.

On September 10, 1971, Cloyd and Etta Barnes sold thirty acres to J. B. and Mary K. Barnes, their son and daughter-in-law. The conveyance was by warranty deed with no reservation by the grantors. The deed was executed, delivered and recorded on the same day. The grantees, the son and daughter-in-law, simultaneously executed an instrument styled “Sales Agreement.” It sets forth the terms of payment, which have been paid-in-full, and concludes “Cloyd Barnes may have partnership use of the above described property as long as he wishes.” This instrument was executed only by the son and daughter-in-law and was not recorded at the time. A little over eight years later, on December 19, 1979, the son died and Mary K. Barnes, as survivor, acquired absolute title. Eight days later, on December 27,1979, Cloyd Barnes filed for record the sales agreement. The daughter-in-law, Mary K. Barnes, then filed suit seeking a declaratory judgment that Cloyd Barnes, appellant, had no interest in the property. The appellant asked that his partnership use of the property be confirmed. The issues of reformation, estoppel, or damages were not raised below. On the sole issue raised, confirmation of partnership use, the chancellor held that the warranty deed was absolute on its face and that the sales agreement was void for vagueness. We affirm.

The deed is absolute on its face. The appellant, one of the grantors, reserved no interest in the title. Ark. Stat. Ann. § 50-403 (Repl. 1971) provides that an estate of fee simple is presumed to be conveyed by any deed of conveyance unless that estate is expressly limited by words in the deed. Appellant urges us to examine the sales agreement and use rules of construction to interpret the deed. We decline, because we do not resort to rules of construction when a deed is clear and contains no ambiguities. Coffelt v. Decatur School District No. 17, 212 Ark. 743, 208 S.W. 2d 1 (1948). We apply rules of construction only when the meaning of a deed or the intention of the parties is ambiguous, uncertain or doubtful. Gibson v. Pickett, 256 Ark. 1035, 512 S.W. 2d 532 (1974). The sales agreement is merged into the clear deed. Duncan v. McAdams, 222 Ark. 143, 257 S.W. 2d 568 (1953).

Additionally, the chancellor was correct in reasoning that even if the deed had not been clear the appellant could not prevail because of the vagueness of the terms “partnership use” and “as long as he wishes.” These terms, as used, are vague to the extent that they are not susceptible to being understood. A court cannot enforce a contract which it cannot understand. Indeed, there is a basic question of whether the instrument is a contract since appellant did not execute it. Aside from that question, the language used is incomprehensibly vague, not simply ambiguous in the sense it is susceptible to two or more different meanings. For example, it is impossible to determine if the word “partnership” was executed or executory and was with the other grantor, the son, the appellee daughter-in-law, some other person, or one, some or all of them. It is impossible to determine when the partnership would begin or would terminate and upon what conditions. It is impossible to know what interest a “use” creates, whether it is merely a possessory interest or is an ownership interest, whether it could be conveyed, what, if anything, the user pays and how that amount is decided. It is impossible to determine how a use is divided among users. “As long as he wishes” is equally vague. It is impossible to understand whether the appellant can convey his use, or whether it is the reservation of some interest for as long as appellant is able to use the acreage, or for life. Appellant may wish his grandchildren and great-grandchildren have the use of the property and could cloud the title into perpetuity. Such vagueness is not enforceable.

The deed is clear and conveys absolute title and is not subject to modification by a vague instrument.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent from the majority opinion which I feel is an incorrect interpretation and application of the law as well as a most unjust decision. I realize we are frequently forced by law to make unjust decisions but this one was freely and voluntarily made by the court.

This is a typical case of parents wishing to see that their children receive their property at the time of their death. However, the parents in this case deeded a small farm to their son and at the same time reserved the right of the father to work the land as long as he desired. There is no indication that the “sales agreement” was not executed before the “warranty deed.” No doubt, the deed was given with the expectation that it would complete the transaction which had been agreed upon in the “sales agreement.” The parents, no doubt, desired to keep peace and harmony in the family and therefore included the name of their daughter-in-law, the present appellee, on the deed with the name of their son. This farm had been jointly tended by the father and the son many years before the instruments mentioned above were executed. In fact, they continued to tend the property together and share in the profits until the death of the son in 1979. The father even divided the profits of the farm with the widow of his son, his daughter-in-law, the present appellee, during the year following his son’s death.

The widow moved to Texas and in 1980 filed this suit to get title free and clear in her own name. A more unjust and unconscionable claim could not be presented to a court of equity. I will not be a part of allowing this woman to take this property from these old people.

These two instruments were executed simultaneously and all parties acknowledged that they knew what the instruments were. Mary K. Barnes, in addition to signing the “sales agreement,” accepted the benefits of the agreement for many years and then after her husband died she decided to renege on the agreement. At least since 1908 we have held that the conduct of the parties to an agreement is evidence of the parties’ understanding and intentions concerning the agreement. Field v. Morris, 88 Ark. 148, 114 S.W. 2d 206 (1908). No one can seriously deny that the words in the agreement were carried out for a number of years and the action of the parties is clearly in compliance with the plain meaning of the language used in these agreements.

I agree with the appellant’s statement that it is a general rule that in construing separate writings that make up one contract even though there were contemporaneous instruments drawn at the same time such instruments will be construed as constituting one contract. Quillen v. Twin City Bank, 253 Ark. 169, 485 S.W. 2d 181 (1972). The parties in the present case did approximately the same thing as has been done thousands of times when a grantor gave an absolute deed and at the same time the grantee executed a mortgage on the same property. Therefore, I would reverse and hold that the father has the right to work this land as long as he lives or desires.


author: Per Curiam.

text:
    Howard K. GILES, Treasurer of Miller County, Arkansas v. TEXARKANA SCHOOL DISTRICT NO. 7 OF MILLER COUNTY, Arkansas, and FOUKE SCHOOL DISTRICT NO. 15 OF MILLER COUNTY, Arkansas
    81-183
    627 S.W. 2d 554
    Supreme Court of Arkansas
    Opinion delivered February 8, 1982

      Jim Gunter, Pros. Atty., by: Kirk D. Johnson, Deputy Pros. Atty., for appellant.

      Arnold, Lavender, Rochelle, Barnette Or Franks, by: G. William Lavender, for appellees.
   Per Curiam.

The merits of this appeal cannot be reached because the abstract is so deficient we cannot follow, much less decide, the allegations of error. Appellant contends that the chancery court lacked jurisdiction to decide the claim, that its motion to dismiss should have been granted, that there was an adequate remedy at law and that no grounds for injunctive relief exist. We are asked to decide these procedural and substantive issues with no abstracting of the complaint, answer, motion to dismiss, the final judgment, or any of the exhibits. Where that occurs we have no real choice but to affirm the case. See our Rule 9 (e) (2). Smith v. Smith, 263 Ark. 578, 567 S.W. 2d 88 (1978); Bank of Ozark v. Isaacs, et al., 263 Ark. 113, 563 S.W. 2d 707 (1978); Dairyland Insurance Co. v. Carter, 261 Ark. 795, 551 S.W. 2d 211 (1977).

Affirmed.

Dudley, J., not participating.


author: Richard B. Adkisson, Chief Justice. Frank Holt, Justice,

text:
    FARM BUREAU MUTUAL INS. CO. OF ARKANSAS, INC. v. James HENLEY et al
    81-187
    628 S.W. 2d 301
    Supreme Court of Arkansas
    Opinion delivered February 16, 1982
    [Rehearing denied March 22, 1982.]

      Butler, Hicky & Hicky, Ltd., by: Stephen A. Routon, for appellant.

      Frierson, Walker, Snellgrove ir Laser, for appellees Henley.

      Daggett, Daggett & Van Dover, for appellees Dane.
   Richard B. Adkisson, Chief Justice.

At the close of appellant’s case, the St. Francis County Circuit Court directed a verdict in favor of the appellees on all three counts of appellant’s complaint. On appeal we reverse in part and affirm in part.

On August 30, 1975, appellees Gene Dane and David Henley, both six years old, were playing close to the trash bins of a gift shop, Cricket on the Hearth, in Forrest City. The boys began to light matches and throw them into a trash bin, starting a fire. The boys then threw dirt on the fire to put it out and returned home. Unfortunately, the fire continued to burn and spread from the trash bin to the gift shop, causing considerable damage. Appellant insurance company paid for the damage and now brings suit to recover the amount of the loss.

I

The first count of appellant’s complaint alleged that the appellees’ parents were negligent in the supervision of their minor sons. Thé trial court directed a verdict on this count, ruling the evidence was insufficient.

The issue of negligent supervision was thoroughly discussed in Bieker v. Owens, 234 Ark. 97, 350 S.W. 2d 522 (1961) where we stated:

Since each human mind and personality is exclusively that of the individual possessing it, it would be unreasonable to place an absolute responsibility for. the acts of another on any person. But where the parent (1) has the opportunity and ability to control a minor, and (2) has knowledge of the tendency or proclivity of the minor to commit acts which could normally be expected to cause injury to others, and (3) after having such opportunity, ability and knowledge has failed to exercise reasonable means of controlling the minor or appreciably reduce the likelihood of injury to others because of the minor’s acts, the parent should be made to respond to those who have been injured by such acts of the minor. . . .

We then stated that the parent is not liable when there is nothing to show any knowledge by the parent of a line of conduct on the part of the child.

In the case before us here, the only evidence on the issue of negligent supervision was the testimony of all four parents. Although both the Henleys and the Danes had the opportunity and ability to control their sons, this testimony failed to show they knew or should have known that their sons had a tendency to commit injurious acts. Mrs. Henley testified that she had never received a complaint about David destroying property, that to her knowledge David did not carry matches, and that she had not had any problems with him in this regard. Mr. Henley testified that David might have been around fireworks, but to his knowledge David had never played with matches; also, he stated that he had never received complaints about David’s character or conduct.

Mrs. Dane testified that she kept matches in a drawer three feet off the floor, but that she had not known Gene to play with matches prior to this incident. Mr. Dane testified that nothing had ever come up to cause him to give Gene a lecture about matches; that Gene carried the trash out to a barrel but had never set it on fire because he was not permitted to use matches.

As to the sufficiency of the evidence, the test for the trial court in ruling on a motion for a directed verdict by either party is to take that view of the evidence that is most favorable to the non-moving party and to give it its highest probative value, taking into account all reasonable inferences deducible from it; after viewing the evidence in this light, the trial court should: (1) grant the motion only if the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside, or (2) deny the motion if there is substantial evidence to support a jury verdict for the non-moving party. Miller v. Tipton, 272 Ark. 1, 611 S.W. 2d 764 (1981); O’Brian v. Primm, 243 Ark. 186, 419 S.W. 2d 323 (1967); St. Louis Southwestern Railway Co. v. Farrell, Adm’x., 242 Ark. 757, 416 S.W. 2d 334 (1967). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or indüce the mind to pass beyond a suspicion or conjecture. Jones v. State, 269 Ark. 119, 598 S.W. 2d 748 (1980).

Since there is insufficient evidence from which to find negligent supervision on the part of the boys’ parents, the trial court is affirmed in granting a directed verdict on this issue.

II

The second count of appellant’s complaint alleged that the minor appellees had trespassed upon the property of the owners of the gift shop. The trial court directed a verdict on that issue, stating that a child under seven could not be a trespasser. The trial court based its ruling on Ark. Power & Light Co. v. Kilpatrick, 185 Ark. 678, 49 S.W. 2d 353 (1932) and Cooper Adm. v. Diesel Ser., Inc., 254 Ark. 743, 496 S.W. 2d 383 (1973). Kilpatrick did hold that a seven-year-old child could not be a trespasser, but an attractive nuisance was present in that case. Cooper seemed to extend the principle that a seven year old cannot be a trespasser to cases in which no attractive nuisance is present. After reconsidering our decisions in those cases, we affirm our holding in Kilpatrick, but to the extent that Cooper is inconsistent with our decision in this case, it is overruled.

In Moore v. Wilson, 180 Ark. 41, 20 S.W. 2d 310 (1929) we stated that, as a general rule, an infant is liable for his torts in the same manner as an adult. The Court in Brown v. Dellinger, 355 S.W. 2d 742 (Tex. 1962) correctly stated:

Where the only intention necessary to the commission of the tort is to perform the physical act in question, as in trespass to property or person, it seems settled that even an infant of quite tender years may be held liable.

We hold that a six-year-old child may be a trespasser which is a question of fact for the jury. Therefore, we reverse on the narrow issue presented.

Ill

The third count of appellant’s complaint was based on Act 283 of 1975 which provided:

Destruction of property by minors — Liability of parents. — The State, or any county, city, town or school district, or any person, corporation or organization shall be entitled to recover damages in an amount not in excess of One Thousand Dollars ($1,000) in a court of competent jurisdiction from the parents of any minor under the age of eighteen (18) years, living with the parents, who shall maliciously or willfully destroy property, real, personal or mixed, belonging to the State or any such county, city, town or school district, or any person, corporation or organization.

Based upon the undisputed facts of this case the trial court directed a verdict for appellees on this issue, ruling that the appellees had not acted willfully. (Appellant did not allege the children’s actions were malicious.)

“Willfully” within the context of this statute, which must be strictly construed because of its penal nature, means an intent to do the act in question. This definition comports with Webster’s Third New International Dictionary which defines willful as self-determined, voluntary, and intentional. In this case the evidence is undisputed that appellees willfully threw matches in the trash bin, but this is not to say that they willfully set fire to the gift shop. There is no evidence that the boys actually intended to set fire to the shop. Under these circumstances the damage to the shop may have been the result of their carelessness, but not their willfulness. The trial court’s ruling on this issue is affirmed.

Reversed in part; affirmed in part.

Holt and Dudley, JJ., dissent.

Frank Holt, Justice,

dissenting. I cannot agree with that portion of the majority opinion which holds that the six year old children could be trespassers upon appellant’s property and, therefore, the trial court erred in holding otherwise. The majority correctly notes that the trial court, in granting a motion for a directed verdict on this issue, relied upon Arkansas Power & Light Co. v. Kilpatrick, 185 Ark. 678, 49 S.W. 2d 353 (1932); and Cooper v. Diesel Service, Inc., 254 Ark. 743, 496 S.W. 2d 383 (1973). In Kilpatrick we said: “Children the age of the injured boy [7], going on other’s property, are not trespassers.” It is true that case involved an attractive nuisance (an electric substation). In Cooper, however, we made it clear that our holding in Kilpatrick is not limited to attractive nuisance cases and reaffirmed Kilpatrick that a seven year old boy, who goes upon the property of another, is not a trespasser because of his incapacity as an infant of tender age. As I read Kilpatrick and Cooper, this court is committed to the rule of law that infants of the tender age of six are incapable of committing trespass. Other jurisdictions support this reasoning. See Queen Insurance Company v. Hammond, 132 N.W. 2d 792 (Mich. 1965); Seaburg v. Williams, 161 N.E. 2d 576 (Ill. 1959); DeLuca v. Bowden, 329 N.E. 2d 109 (Ohio 1975); and Johnson v. Butterworth, 180 La. 586, 157 So. 121 (1934).

The majority cites Moore v. Wilson, 180 Ark. 41, 20 S.W. 2d 310 (1929), as authority that an infant, as a general rule, is liable for his tort like that of an adult. That case is inapposite. The minor there was involved in a traffic mishap when driving a car. His age is not specified. The court characterized him as a minor and a “young man.”

I would affirm.

Dudley, J., joins in this dissent.


author: Richard B. Adkisson, Chief Justice.

text:
    Donald R. KIRK v. THE CITY OF LITTLE ROCK et al
    81-203
    628 S.W. 2d 21
    Supreme Court of Arkansas
    Opinion delivered February 16, 1982

      Henry & Duckett, by: David, P. Henry, for appellant.

      R. Jack McGruder, City Atty., by: Carolyn B. Wither-spoon, Asst. City Atty., for appellees.

      Wright, Lindsey & Jennings, for appellees-intervenors.
   Richard B. Adkisson, Chief Justice.

Appellee, City of Little Rock, denied an application by appellant, Donald R. Kirk, to rezone 5.9 acres from R-2, single family residential, to MF-12, multifamily. Appellant then filed a complaint in Pulaski Chancery Court seeking to enjoin appellee from interfering with his desired use of the property. The trial court permitted the Caring Property Owners Association, an unincorporated association formed to oppose rezoning of the property in question, to intervene. The chancellor held the denial of the rezoning application by appellee was not arbitrary or capricious and did not deprive appellant of all reasonable use of his property. On appeal wé affirm.

The property in question is located on the north side of West Markham Street, three blocks east of the intersection of Markham and Rodney Parham, and across the street from Brady Elementary School. It is irregular in shape with frontage access to Markham Street through a corridor 50 feet wide and 229 feet deep. It is divided by a drainage ditch; the northern part is ruggedly steep and the southern part is flat.

The property is bordered on the north and east by property zoned single family residential, R-2; on the west by R-2 and R-5, apartment; and on the south by property zoned R-5 and West Markham. Appellant’s property is currently zoned R-2; appellant requested rezoning to MF-12 (multifamily, 12 units per acre).

The only issue before the trial court was whether the City acted arbitrarily, capriciously, or unreasonably in refusing to rezone appellant’s property. To prove that the City had acted unreasonably, appellant introduced evidence to show that he would be deprived of any reasonable use of his property unless it was rezoned as requested.

Appellant’s experts testified that the northern portion of the property could not be developed as single family residential because of the cost, and that the best use for the tract would be a multifamily development of some sort. They gave examples of apartment complexes that adjoin single family residence areas in several parts of Little Rock. However, none of appellant’s witnesses testified that the only appropriate zoning for appellant’s property was MF-12.

A witness for the appellees, Professor Robert Wright, a land use expert, testified that rezoning the northern portion of the property to MF-12 would not be a compatible land use because it is surrounded by property zoned R-2 on three sides. Professor Wright described this as spot zoning which is shunned by land use experts as improper. Other experts for appellees testified that it would be inappropriate to extend apartments into the adjacent single family developments and that MF-12 zoning would have an adverse impact on these areas. Several property owners testified that they objected to the rezoning because of the possible devaluation of their homes and because of potential traffic problems which could be created by an apartment complex.

The chancellor resolved this conflict in testimony in favor of appellees, finding that rezoning the entire tract MF-12 would be incompatible with the surrounding neighborhood and would have an adverse impact on homes adjacent to the northern portion of appellant’s property. We stated in Downs v. City of Little Rock, 240 Ark. 623, 401 S.W. 2d 210 (1966) that the composition of the entire area must be taken into consideration in a zoning case. Also, the effect on the surrounding property is a valid consideration as well as the objections of neighboring property owners. See Marling v. City of Little Rock, 245 Ark. 876, 435 S.W. 2d 94 (1968). After reviewing the testimony, we cannot say that the chancellor clearly erred in finding by a preponderance of the evidence that the City did not act unreasonably in refusing to rezone appellant’s property.

Appellant argues that R-2 zoning was unreasonable, but that issue was not before the trial court. The only issue was whether the denial of MF-12 zoning was unreasonable. Testimony revealed that there are other alternative classifications for the property which were not before the trial court.

Appellant argues that the trial court erred in giving equal weight to appellees’ experts since they were not informed as to certain engineering problems in connection with development of the property. In matters of credibility we defer to the judgment of the chancellor, who has the advantage of seeing the witnesses as they testify.

Affirmed.