author: George Howard, Jr., Justice.

text:
    Dr. Robert H. WHITE et al v. Delmon F. MITCHELL et ux
    77-278
    568 S.W. 2d 216
    Opinion delivered June 26, 1978
    (In Banc)

      Wright, Lindsey & Jennings, for appellant.

      Langerman, Begam, Lewis, Leonard & Marks, by: James J. Leonard and Noel Fidel, Phoenix, Arizona; and Ward, Rhodes & Garrett, by: James R. Rhodes, for appellees.

      Friday, Eldredge & Clark, by: John Dewey Watson, for appellee Argunaut Insurance Co.

      Rose, Nash, Williamson, Carroll, Clay & Giroir, by: Vincent Foster, Jr., for cross-appellee Dr. Stanley W. Combs.
   George Howard, Jr., Justice.

We are to determine whether there is substantial evidence to support the trial court’s action in granting directed verdicts in this medical malpractice action resulting in the following:

1. A judgment in the sum of $250,000.00 on the medical malpractice complaint of Delmon F. Mitchell against Dr. Robert H. White; and,
2. A judgment in the sum of $50,000.00 for Virginia Mitchell, wife of the plaintiff, against Dr.
Robert H. White for loss of consortium; and,
3; Dismissal of the action against Argonaut Insurance Company, insurer for Hot Spring Memorial County Hospital; and,
4. Dismissal of the action against Dr. Stanley Combs, who was employed by Hot Spring County Memorial Hospital to cover the emergency room on weekends.

If there is sufficient evidence to support the trial court’s action, we are duty bound to affirm the ruling of the trial court, while on the other hand, if the evidence falls short of the substantiality requirement, we are equally duty bound to reverse the action of the trial court.

THE FACTS

Appellee, Delmon F. Mitchell, on Thursday, December 7, 1972, fell from the roof of a house while either in the process of ascending or descending a ladder and, as a direct consequence of the fall, sustained a fracture of the tibia and fibula of the right leg at the juncture of the mid and distal third of these bones. Mr. Mitchell was taken to the Hot Spring County Memorial Hospital, arriving at approximately 6:20 p.m. where he was seen by appellant, Dr. Robert H. White. Dr. White performed a closed reduction, the leg was placed in a stockinette, wrapped with sheet wadding and covered with a plaster of Paris cast from the instep to the groin, with the knee at an angle at 70 degrees and admitted Mr. Mitchell to the hospital.

Upon reviewing the post-reduction x-ray film, Dr. White discovered the bones were not in perfect alignment. The cast was cut and reworked until Dr. White was satisfied with the alignment. Mr. Mitchell was then admitted to the floor of the hospital at 9:00 p.m. Within a few minutes of Mr. Mitchell’s arrival upon the floor, Dr. White cut the cast to relieve pressure which Mr. Mitchell was complaining of.

On December 9, 1972, at approximately 2:00 a.m. Mr. Mitchell was unable to move his toes of the right foot and some swelling was observed. At 3:15 a.m., Mr. Mitchell complained further of being unable to move his toes which were observed to be cyanotic and cool to the touch. Dr. White was notified of Mr. Mitchell’s condition by telephone and during the telephonic conversation, Dr. White directed the nurse, a licensed practical nurse, to cut the cast and wedge it a few inches. It seems that as a consequence of these steps, Mr. Mitchell obtained relief from these symptoms.

At approximately noon on December 9, 1972, Mr. Mitchell complained further of severe pain in his right leg and the inability to move his toes which were observed to be cyanotic. Dr. White was called. At 12:15 p.m., the cast was cut, pursuant to the directions given by Dr. White over the telephone, by Dr. Stanley Combs who was employed by the hospital to cover the emergency room of the hospital on weekends. Thereafter, the color in the toes was observed to be better, there was adequate circulation, good sensation, no pain and moderate swelling.

At 3:00 a.m. on December 10, 1972, Mr. Mitchell’s toes appeared to be more cyanotic and swollen; again the cast was cut and wedged a few inches by Dr. Combs.

Dr. White saw and examined Mr. Mitchell on Monday, December 11, 1972, at 9:00 a.m.

On December 12, 1972, at approximately 9:15 a.m., Dr. White recognized the inability on the part of Mr. Mitchell to move his toes, the presence of sensation, but some discoloration of the toes. At 2:00 p.m., Dr. White cut a window in the cast over the peroneal nerve, and at 2:30 p.m., Dr. White ordered Mr. Mitchell transferred to the Arkansas Baptist Hospital in Little Rock under the care of Dr. Leighton Millard, an orthopedic surgeon. On the evening of December 12, 1972, Dr. Millard performed a fasciotomy of the right calf, and on December 28, 1972, the right leg was amputated below the knee.

On April 11, 1974, appellees, Delmon F. Mitchell and Virginia Mitchell, his wife, filed their complaint in the Circuit Court of Hot Spring County, Arkansas, against Argonaut Insurance Company, insurer for Hot Spring County Memorial Hospital, Dr. Robert H. White, and Hot Spring County Memorial Hospital, seeking a judgment jointly and severally against the defendants for the sum of $750,-000.00 for Mr. Mitchell and the sum of $100,000.00 for loss of consortium in behalf of Mrs. Mitchell. Defendants, Argonaut Insurance Company, Hot Spring County Memorial Hospital and Dr. Robert H. White, inter alia, denied the allegations contained in the complaint.

On October 22, 1974, plaintiffs filed an amendment to their complaint making Dr. Stanley Combs a party defendant to their action. On December 6, 1974, Dr. Combs filed his answer denying the allegations of the complaint of the plaintiffs, and filed his cross-claim against Hot Spring County Memorial Hospital, Argonaut Insurance Company and Dr. Robert H. White praying judgment against the cross-defendants for any sums that he might be held liable for under plaintiffs’ complaint, and in the alternative, judgment against the cross-defendants for contribution in accordance with the Uniform Contribution Tortfeasors Act. On January 6, 1976, Hot Spring County Memorial Hospital and Argonaut Insurance Compány, among other things, filed their cross-complaint against Dr. Robert H. White and Dr. Stanley Combs for judgment by way of contribution or indemnity in the event they should be found liable to the plaintiffs for any sums. On January 8, 1976, Dr. Stanley Combs filed his answer denying the material allegations contained in the cross-complaint of Hot Spring County Memorial Hospital and Argonaut Insurance Company.

HOLDING OF THE TRIAL COURT

The trial of this matter was conducted by the trial court on February 21, 1977, and on February 23, 1977, after all parties having rested, the plaintiffs and defendants moved the trial court for directed verdicts. On February 24, 1977, the trial court made the following ruling:

A. Awarded Delmon Mitchell judgment against Dr. Robert H. White in the sum of $250,000.00 as and for special and general damages.
B. Awarded Virginia Mitchell the sum of $50,-000.00 against Dr. Robert H. White for her claim of loss of consortium.
C. Awarded judgment in behalf of Argonaut Insurance Company and against plaintiffs-appellees as the insurance carrier for Hot Spring County Memorial Hospital and its agents, servants and employees, thus, dismissing plaintiffs’ complaint as to these defendants.
D. Awarded judgment in favor of Dr. Stanley Combs and against plaintiffs-appellees, resulting in a dismissal of plaintiffs’ complaint as to Dr. Combs.
E. Awarded judgment in favor of Dr. Stanley Combs and against defendant, Argonaut Insurance Company, on the cross-claim of Argonaut Insurance Company against Dr. Stanley Combs, resulting in a dismissal of the cross-complaints Filed by Dr. Combs, Argonaut Insurance Company and Hot Spring County Memorial Hospital.

APPELLANT’S CONTENTIONS FOR REVERSAL

1. Appellant, Dr. Robert H. White, is entitled to have judgment entered in his favor as a matter of law.
2. The trial court erred in admitting the testimony of Dr. Thomas Henry Tabor, Jr.
3. The judgments, are excessive.

THE DECISION

I.

At the outset, we deem it advisable to consider appellant’s contention that the trial court committed reversible error in admitting the testimony of Dr. Thomas Henry Tabor, Jr., expert witness called by Delmon F. Mitchell. The thrust of appellant’s argument may be stated succinctly by quoting directly from appellant’s brief:

“. . . He [Dr. Thomas H. Tabor, Jr.] has never been in Malvern, Arkansas, and is not specifically familiar with the practice of medicine by a general practitioner in that city. . . . His attempt to qualify to judge the standards of practice in Malvern was strictly a bootstrap operation. He stated it very simply: T do not believe the standards of care for any of us physicians would be any different in Arizona, New York State, Washington State, Malvern, Arkansas.’. . . This kind of testimony might be relevant on the question of the validity of the ‘locality rule’, but that issue has been settled in Arkansas. Dr. Tabor was not qualified to testify ....
“The law in this state with reference to the liability of a physician for the practice of his profession is well settled. The requirement is that the physician or surgeon in the treatment of patients is required to possess and exercise that degree of skill and learning ordinarily possessed and exercised by members of his profession in good standing, practicing in the same or in a similar locality.. . .
“In the case at bar, a highly trained specialist having no experience whatsoever with the general practice of medicine in Arkansas was allowed to testify about his evaluation of Dr. White’s handling of a condition so unusual that it is not even observed by the majority of physicians in a lifetime of practice. To hold Dr. White liable in this case amounts, in effect, to the imposition of strict liability for the general practice of medicine. That is not the rule in Arkansas. ...”

In Gambill v. Stroud, 258 Ark. 766 (1975), inter alia, we said:

“The rule we have established is not a strict locality rule. It incorporates the similar community into the picture. The standard is not limited to that of a particular locality. Rather, it is that of persons engaged in a similar practice in similar localities, giving consideration to geographical location, size and character of the community.
“. . . [T]he similar locality rule is not necessarily so restrictive, and an expert witness need not be one who has practiced in the particular locality or who is intimately familiar with the practice in it in order to be competent to testify if the appropriate foundation has been laid to show that he is familiar with the standards of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities. ...” (Emphasis added).

The pivotal question is whether the trial court properly determined, within the guidelines enunciated in Gambill, that Dr. Tabor was competent to testify?

Under Ark. Stat. Ann. § 28-1001, Rule 104 (Noncum. Supp., 1977), it is provided in material part as follows:

“Preliminary questions concerning the qualificiations of a person to be a witness, ... or the admissibility of evidence shall be determined by the court. ...” (Emphasis added)

It is readily apparent that under Rule 104, a trial court has discretion in determining the qualifications of a person to be a witness and in further determining the admissibility of evidence, providing the evidence is not inadmissible under some exclusionary rule. In testing the propriety of the trial court’s action in holding Dr. Tabor’s testimony competent and admissible, our responsibility is to determine whether there has been an abuse of discretion on the part of the trial court.

After carefully reviewing the record in this case, we are not persuaded that the trial court abused its discretion in receiving the testimony of Dr. Tabor. We emphasized in Gambill that an expert witness need not be one who has practiced in the particular locality, or one who is intimately familiar with the practice in it in order to be qualified as an expert to testify in a medical malpractice action, if an appropriate foundation is established to demonstrate that the witness is familiar with the standard of practice in a similar locality, either by his testimony or by other evidence showing the similarity of localities.

Preliminarily to the presentation of the testimony desired of Dr. Tabor, or stated differently, in order to establish a foundation for the desired testimony, appellees offered the following evidence:

1. That Dr. Tabor graduated from the University of Pennsylvania Medical School in 1946 as a doctor of medicine.
2. That he did an internship in the United States Navy at a hospital in San Diego, California.
3. That in order to qualify as a Board Certified Orthopedic Surgeon, Dr. Tabor was required to complete three years of orthopedic training and residency plus two years of private practice which he completed in 1956 and became Board Certified.
4. That Dr. Tabor is licensed to practice his profession in the states of Pennsylvania, New Mexico, Arizona and California.
5. That Dr. Tabor is the past president of the Western Orthopedic Association, and is presently serving as president of the United States-Mexico Medical Society which is essentially a group of physicians from Mexico and the southwestern part of the United States who exchange medical ideas.
6. That Dr. Tabor is chief of the training program at St. Joseph General Hospital of Phoenix, Arizona, for interns and first year residency in orthopedic surgery and has held this position for a period of six years.
7. Dr. Tabor has his own clinic and is associated with the Arizona Children’s Hospital which specializes in children’s diseases; and he further holds a teaching position in the children’s hospital.
8. Dr. Tabor reviewed the hospital charts from the Hot Spring County Memorial Hospital regarding Mr. Mitchell’s injury; he reviewed the deposition of Dr. Combs; and these documents were reviewed as a doctor of general practice of medicine and not as an orthopedic surgeon.

Dr. Tabor further testified that he had served as a consultant in orthopedic surgery at the Navapache Hospital in Showlow, Arizona, a town with a population of 4,500; that he has practiced in and received patients, on a referral basis, from Casa Grande, a town with a population of 10,000 or 12,-000, which has a small hospital with general medical practitioners; that he has had patients from a number of other hospitals over the years from small and rural communities; that he has consulted, by phone, with many physicians in outlying areas in Arizona when these physicians encounter problems involving fractures.

We conclude that in view of Dr. Tabor’s vast medical practice and his extensive association with medical institutions and general practitioners in communities comparable to Malvern, in terms of population, facilities, and the type of medical practice engaged in by the physicians therein, the trial court did not abuse its discretion in holding Dr. Tabor’s testimony competent.

II.

Appellant argues that it is elementary that in a tort action, proximate causation, as well as negligence, must be established by direct or circumstantial evidence and that a causal connection may not be proved by conjecture and speculation. Appellant further argues that the evidence in this action is entirely speculative and conjectural and as a consequence, appellees have failed to discharge the burden of establishing negligence and proximate cause on the part of Dr. White, even with the testimony of Dr. Tabor being considered. Stated differently, appellant contends rather strenuously that there is no substantial evidence upon which a judgment against Dr. White can be sustained.

In Green v. Harrington, 253 Ark. 496, 487 S.W. 2d 612, we made the following observation:

“It is an oft stated rule that it is the function of the jury or the trial court sitting as a jury to determine the preponderance of the evidence, and we affirm if there is any substantial evidence to support the finding after reviewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee. . . .
“. . . [I]n testing the sufficiency of the evidence as being substantial in nature, we consider the testimony of the appellees alone or that portion of all the evidence which is most favorable to them. ...”

In Jordan v. Adams, 259 Ark. 407, 533 S.W. 2d 210, we stated:

“On appeal we consider only that evidence which is most favorable to appellees in determining if substantial evidence exists.”

The evidence in this case establishes that Mr. Mitchell’s condition was diagnosed as an anterior tibial compartment syndrome which was caused by the injury that he sustained when he fell and fractured his right leg. The evidence establishes beyond any question that a fracture of the type sustained by Mr. Mitchell may result in circulatory problems which can decrease blood flow causing ultimately death to living tissue in the affected area; thus, an attending physician must be acutely concerned about any signs indicating circulatory problems.

Dr. Tabor testified as follows regarding the onset of Mr. Mitchell’s circulatory problem and the objective signs that should have alerted Dr. White of the existence of this complication:

“A. Yes, I think I can tell you that the course from the time that this patient sustained his fracture showed some things beginning on the next day which indicated that problems were developing and that as each day progressed in the patient’s care in the hospital, there was more evidence, should be more evidence to any physician that complications were developing which were beyond the usual type of thing that happens with this type of case. The features of loss of sensation in the foot; the amount of pain the patient complained about; the coloration of the foot which is called cyanosis; the temperature changes in the foot; the increasing evidence as day by day went by indicating that there was a definite problem with the circulation which was not recognized when it should have been to the point that when it was recognized it was unfortunately too late to do anything for the patient’s limb to save it.”

Dr. Tabor further testified as follows:

“Q. Dr. Tabor, if we can try and get to the specifics in terms of December 7, 1972. Did you feel that it was in any way improper or a failure to measure up to the appropriate standards of practice for Dr. White, given his background as I have described it to you and as you have read it in his deposition, to undertake the care of this patient?
A. No. I think that Dr. White was capable of taking care of this type of case at the onset of the case, yes.
Q. As we go over to December 8, 1972, is the finding at that time, Dr. Tabor, of the notation as set forth in the progress note at 8:30 a.m., ‘patient has good circulation; can move toes but says there is no sensation in toes. ’ Is that of any significance?
A. Yes. It would be of some significance.
Q. Why would that be?
A. The lack of sensation would indicate that something was wrong as far as the extremity is concerned. It could be a number of features but at least it’s a factor that indicates that something is different than it should be at that stage of the game. The loss of sensation would imply that either there was something wrong with the circulation or that there was something wrong with the nerve supply to that extremity. It would be a warning signal at this point.”

The evidence reveals that Mr. Mitchell’s cast was cut four times to relieve pressure:

1. Dr. White cut the cast a few inches within minutes after Mr. Mitchell was admitted to the floor of the hospital in order to relieve pressure; and,
2. A licensed practical nurse cut and wedged the cast a few inches at 3:15 a.m. on December 9, 1972, after receiving instructions from Dr. White over the telephone in order to relieve pressure; and,
3. On December 9, 1972, at 12:15 p.m., the cast was cut by Dr. Combs pursuant to instructions given by Dr. White over the phone in order to relieve pressure; and,
4. On December 10, 1972, at 3:00 a.m., the cast was cut and wedged a few inches by Dr. Combs in order to relieve pressure.

Dr. Combs testified relative to discussing Mr. Mitchell’s condition with Dr. White as follows:

“Q. And after you saw Mr. Mitchell, you have a distinct recollection of calling Dr. White?
A. Yes, I do.
Q. Did you report to him essentially what you have told us here today?
A. Yes, I did.”

The following is the testimony of Dr. White when questioned about the telephone call Dr. Combs said he made relative to Mr. Mitchell:

“Q. You are not swearing that you got a call and you are not swearing that you didn’t get a call?
A. I am just saying I don’t remember a call.”

Although the cast was cut and wedged at least four times and Mr. Mitchell continued to complain of pain, Dr. White never suggested that the stockinette may have been the source or partly contributing to the pressure and thus, the stockinette should be cut also. Moreover, Dr. White admitted that he did not have the “faintest idea” whether a physician splitting a cast should cut through the stockinette and wadding down to the bare skin of the patient’s leg.

In this regard, Dr. Tabor testified as follows:

“A. Yes, if we are going to split a cast because we feel as a physician that that cast is too tight, the only way that we can be satisfied that we split the cast and everything down so that we can see the skin from the very end to the very top through this cast so we know there is not any kind of constricting band, either plaster or other material that is causing a tourniquet-like effect or other pressure effect on the circulation. In other words, that it is not too tight.”

Dr. Tabor also testified:

“Q. Doctor, with respect to the medical treatment of Mr. Mitchell on December 7, 1972, did you find any deviations in that treatment afforded by Dr. White which you felt were a failure to measure up to the appropriate standard of practice in this community or similar communities?
A. Well, in answer to your question, I would have to say we would have to look through the record as far as the care that was rendered with concern and plan out the features that make me feel that there was a performance that was not up to the standard of care in this particular case.”

Dr. Tabor further testified as follows:

“Q. Do you have an opinion, Dr. Tabor, that you could express to a degree of reasonable medical probability whether this leg could have been saved if Dr. White had done something sooner?
A. Yes. I think that I could give an opinion that up till (sic) probably at least some time in the morning of the 11th which was the day before he was transferred there would have been a reasonable hope or reasonable probability that the limb could have been salvaged.”

Dr. White testified as follows:

“Q, Have you ever yet read, sir, the hospital chart from Little Rock Baptist Hospital?
A. No I have not.
Q. I want you to assume it to be true that when he arrived at Little Rock Baptist Hospital he was seen by Dr. Leighton Millard and Dr. Millard got the cast off and took him in and cut open the muscle and notes that the foot was cyanotic and he describes the muscle as being dark and dead. Isn’t it true, Doctor, that the reasonable probabilities are that dark, dead muscle was caused by an insufficient blood supply over a period of time?
A. Probably.”

Dr. Leighton Millard testified that he had familiarized himself generally with the treatment given Mr. Mitchell before he saw Mr. Mitchell; and that what was done to relieve the pressure was unsuccessful and that if more appropriate measures had been taken, the cyanotic condition causing death to tissues and ultimately necessitating amputation of Mr. Mitchell’s leg could have been avoided. Dr. Millard further testified that when a cast is split, the cutting should go right down to the skin. However, Dr. Millard emphasized that the anterior tibial compartment syndrome, when dealt with promptly, can be reversed by the removal of all pressure, while, on the other hand, there are some cases that are irreversible by any means known by medical science. Dr. Millard also stated that an anterior compartment syndrome is an unusual complication of a fracture; and that a majority of the doctors, other than orthopedists, would not see a syndrome in a lifetime of practice and that the syndrome results from a number of causes other than fractures. To illustrate the rarity of this type of fracture, Dr. Millard testified that he did not disagree with the report in the medical literature that as of February 1973, only twenty-six reported instances of anterior compartment syndrome had been found. Dr. Millard testified further that the amputation of Mr. Mitchell’s leg was a result of the injury and subsequent anterior compartment syndrome and not the result of any treatment that Mr. Mitchell had received. However, Dr. Millard stated that early treatment of impaired circulation caused by a syndrome increases the probability of a successful result; that from the chart of the Hot Spring County Memorial Hospital, it is shown that there was elevation of temperature on December 9th, 10th and 11th, varying from 100.5 degrees to 102 degrees, and the pulse rate varied from 86 to 96; that these are general indicators that something is wrong and are danger signals. Moreover, Dr. Millard testified that Dr. White should have sought help from an orthopedic specialist as early as December 8th and 9th, given the findings contained in Mr. Mitchell’s chart.

We are persuaded that there is substantial evidence in this record before us to support a finding that Dr. White failed to recognize, as he should have, and react to the circulatory problem with timely and appropriate action and, consequently, Dr. White’s conduct was the proximate cause of the loss sustained by Mr. Mitchell.

III.

Appellant earnestly argues that the judgments in behalf of appellees are grossly excessive and, therefore, should be reduced. However, appellant concedes that the amount of damages is generally a fact question.

In Jordan v. Adams, supra, we said, in commenting on a contention of excessiveness of an award of damages:

“. . . The ultimate question is whether the amount shocks the conscience of the court or demonstrates that the jurors were motivated by passion, prejudice or undue influence. ...”

In Breitenberg v. Parker, 237 Ark. 261, 372 S.W. 2d 828, the following observation was made:

“Every case involving the issue of excessiveness must be examined on its own facts; and before this Court can constitutionally reduce a verdict we must give the evidence in favor of the verdict its highest probative force and then determine whether there is any substantial evidence to sustain the verdict. ...”

Dr. Millard testified that Mr. Mitchell had sustained a permanent disability to the body as a whole to the extent of 28 percent. The evidence further reflects that Mr. Mitchell is 42 years old. Mr. Mitchell’s medical bills, as of the date of the trial, amounted to $5,543.00 and it is clear that he will need frequent medical attention in the future.

The evidence further reveals that Mr. Mitchell is a common laborer and has engaged in factory work, timber work, truck driving and farm labor. As a consequence of the amputation of his right leg, it is apparent that Mr. Mitchell’s future earnings will be limited because of his condition. We are persuaded that the trial court’s judgment is supported by substantial evidence.

Relative to the recovery received by Mrs. Mitchell for the loss of consortium in the sum of $50,000.00, the evidence in this record shows essentially, as a consequence of the loss sustained by Mr. Mitchell, that Mrs. Mitchell is required to devote a considerable amount of her personal time and energy looking after her husband which includes: Bathing and massaging the stump for an hour or more so that her husband can sleep, she dries his stump each morning and is required to put on his stump sock and help her husband dress. Further, the evidence reflects that the Mitchells have curtailed their recreational activities and rarely participate in social functions. Appellees, in their brief, have characterized the personal services to be rendered by Mrs. Mitchell to her husband and the consideration given by the trial court to the services to be rendered by her as:

“It was upon such evidence as this that the trial court evaluated the impairment of Mrs. Mitchell’s marital relationship and the loss of services, society and companionship of her spouse.”

In Arkansas Louisiana Gas Company v. Strickland, 238 Ark. 284, 379 S.W. 2d 280 (1964), in commenting upon certain services and chores to be performed by a wife as having any relationship to her claim of damages for loss of consortium, we made the following observation:

“. . . We fail to comprehend how the above mentioned chores comport with the word consortium as it is ordinarily used. It is defined by Black’s Law Dictionary as follows:
‘Conjugal fellowship of husband and wife, and the right to each to the company, cooperation, affection, and aid of the other in every conjugal relationship.’ ”

In other words, Arkansas Louisian Gas Company v. Strickland, supra, stands for the proposition that chores performed by a wife are not elements to be considered in determining damages for loss of consortium.

In Missouri Pacific Transportation Company v. Miller, 227 Ark. 351, 299 S.W. 2d 41 (1957), there was a total loss of consortium with a husband’s remaining life expectancy of 27 years, however, we reduced the $25,000.00 award to $15,-000.00, stating that the loss of consortium is something difficult to measure in dollars and cents, but the recovery for loss of consortium should be dictated by reason and justice.

Moreover, the services that are expected of Virginia Mitchell, which are nursing in nature, may have been taken into consideration by the trial court in fixing the amount of damages awarded to Mr. Mitchell. Indeed, this is a logical assumption to be made from the record before us. Therefore, to allow the same recovery in favor of the wife for some or all of these factors would plainly be a duplication.

After giving the evidence in this case its highest probative force, we are persuaded that the judgment of the trial court in the sum of $50,000.00 for loss of consortium is highly speculative and is not supported by any substantial evidence and, consequently, is excessive. We hold that appellee, Virginia Mitchell, is entitled to recover a sum not exceeding $30,000.00. If within seventeen days, appellee Virginia Mitchell, will enter a remittitur of $20,000.00, the judgment for the remaining $30,000.00 will be affirmed, otherwise, the cause will be remanded for a new trial solely on the question of damages for the loss of consortium. See: Coca-Cola Bottling Company of Arkansas v. Langston, 198 Ark. 59, 127 S.W. 2d 263 (1939); Anheuser-Busch, Inc. v. McAlpin, 262 Ark. 907.

Modified and affirmed, if remittitur is entered by Mrs. Mitchell relative to the recovery for loss of consortium.

Byrd, J., would affirm the judgment in its entirety.

      Under Arkansas Law, where, at the conclusion of all of the evidence, all parties request a directed verdict and ask no other instructions, the effect of such action is to waive the right to have issues of fact determined by the jury and the matter is submitted to the court for a determination. See: Lee Rubber & Tire Corp. v. Camfield, 233 Ark. 543, 345 S.W. 2d 931.

      The inner and larger bone of the leg below the knee.

      The outer and smaller of the two bones of the leg.

      The manipulative reduction of a fracture as opposed to an open reduction which is a reduction of a fracture after an incision into the fractured site.

      Gauze or bandage impregnated with a solution consisting of fine powder (calcium culfate) and watter and wrapped around a fractured bone; when the solution dries the bandage becomes stiff and, therefore, immobilizes the part involved.

      Bluish discoloration of the skin; an indication that there is not enough osygen in the blood.

      The action against Argonaut Insurance' Company was brought under Ark. Stat. Ann. § 66-3240 (Repl. 1966) where the liability insurer “may be sued direct where insured [is] not subject to suit for tort.”

      Appellant has accurately stated the rule in malpractice cases by which a physician, surgeon, or dentist is held only to the standard of competency that exists in his own locality or in a similar locality. See: Gambill v. Stroud, 258 Ark. 766 (1975), 531 S.W. 2d 945; and A.M.I. 1501.

      Dr. Tabor gave the following explanation of anterior tibial compartment syndrome:
      “A. . . . An anterior compartment syndrome is a group of medical words we attach to a condition that occurs in the leg between the knee and ankle where the muscles run in and over the bones and around the bones we have a different compartment. We have a compartment in front of the leg over the bone that runs down on the side and there are about three or four muscles in here that are contained with what we call a fascia compartment containment over this. This is a very light structure. It doesn’t give. When anything happens in this space or this compartment, that increases pressure, we get what is called an anterior compartment syndrome. . . It doesn’t have much give to it and when increased pressure occurs in that compartment consequences occur which become dire if the pressure increases beyond a critical point.

      The cast was cut and reworked the first time because Dr. White discovered, upon reviewing post-reduction x-ray film, that the bones were not in perfect alignment.

      The evidence shows that Dr. White was advised by the nurse that Mr. Mitchell’s toes were cyanotic and cool to the touch.

      It is clear that no doctor saw Mr. Mitchell from Sunday, December 10, 1972, at 3:00 a.m., when Dr. Combs cut the cast to relieve pressure, until Dr. White came in at 9:00 a.m. on Monday, December 11, 1972. A period of thirty hours having elapsed after cyanotic toes were observed before Mr. Mitchell was seen by a physician.


source: Caselaw Access Project

author: George Howard, Jr., Justice. Conley Byrd, Justice, John A. Fogleman, Justice,

license: Public Domain

text:
    Roy Lee HICKEY v. STATE of Arkansas
    CR 78-17
    569 S.W. 2d 64
    Opinion delivered June 26, 1978
    (In Banc)
    [Concurring opinion on denial of rehearing September 5, 1978.]

      John W. Achor, Public Defender, by: William R. Simpson, Jr., Dep. Public Defender, for appellant.

      Bill Clinton, Atty. Gen., by: Jesse L. Kearney, Asst. Atty. Gen., for appellee.
   George Howard, Jr., Justice.

Appellant was convicted of burglary and theft of property in the Circuit Court of Pulaski County, Arkansas, and was sentenced to the Department of Correction for a term of five years on each charge and the sentences are to run concurrently. The appellant was tried before the court sitting without a jury.

During the trial, Sergeant Bobby L. Ward of the North Little Rock Police Department testified that appellant-defendant had made a confession admitting the commission of the crimes and the confession included the following:

“. . . Roy, are you not out on parole right now? Yes, sir. What are you on parole for? Burglary.”

Appellant’s attorney objected and moved the court for a mistrial. The trial court overruled appellant’s objections and the officer continued to testify as follows:

“. . . What kind of sentence did they give you? ... I got ten years suspended three. . . . And how many months or years did you spend down there? Six months down there. ...”

Appellant has asserted that the trial court committed reversible error in refusing to grant appellant’s motion for a mistrial. We are persuaded that appellant is correct and we, accordingly, reverse the trial court.

In Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), we made the following observation:

“No one doubts the fundamental rule of exclusion, which forbids the prosecution from proving the commission of one crime by proof of the commission of another. The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime. ” (Emphasis added)

See also: Gray v. State, 250 Ark. 842, 469 S.W. 2d 123 (1971); Moore et al v. State, 227 Ark. 544, 299 S.W. 2d 838 (1957).

It is clear from the record before us that the evidence relating to appellant’s prior criminal conduct has no connection with the offenses involved in this action. Moreover, inasmuch as appellant had confessed to the commission of the crimes for which he was charged, it was not necessary to establish the presence of a design or plan to do or not to do a given act. Consequently, the introduction of evidence concerning appellant’s prior burglary convictions constituted prejudicial error.

Appellee argues that even if the evidence objected to were admitted erroneously, appellant has no grounds to assert any prejudice inasmuch as this action was tried by the court sitting without a jury; and that the trial judge must be presumed to be learned in the law sufficient to know the weight and credibility to be given any testimony brought out during the trial. Appellee’s argument is not persuasive. We submit that because a case is tried before a trial judge without the aid and assistance of a jury, this does not, in the least, reduce the proceedings to an informal setting where the principles of law and justice are disregarded or perverted. As we stated in Alford, “basically, the rule involved rests upon that spirit of fair play which, perhaps more than anything else, distinguishes Anglo-American law from the jurisprudence of other nations. Our theory is simply that a finding of guilty should rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. We do not permit the State to bolster its [case] by proof of prior convictions, with their conclusive presumption of verity.” In this way alone, we further emphasized in Alford, “can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt.”

Appellee also argues that the alleged prejudicial testimony is part and parcel of a confession given by appellant and, therefore, under the holdings of some of our early cases “when a defendant’s confession is given in evidence against him, all that he stated in the confession, as well as that for him as that against him, must be admitted.” Frazier v. State, 42 Ark. 70 (1883) and Williams v. State, 69 Ark. 599, 65 S.W. 103 (1901) are the early cases cited in support of this argument.

First, appellee has misapplied the rationale in Williams v. State, supra. In Williams, we said:

“. . . There has been much discussion among jurists as to what part of a confession should be offered in evidence by the plaintiff, and what part by the defendant, and at what stage of the trial each part should be presented; but there is no difference among them on the proposition that the whole of the confession should be admitted, — at least so much of the statement including it as is relevant. ” (Emphasis added)

We see no conflict in Williams and the posture we take in this case.

In Frazier v. State, supra, the State offered a portion of a confession made by appellant admitting that appellant fired the weapon that killed the decedent, but did not offer that part of the confession which stated that at the time the weapon was fired, appellant did not know that he was shooting the decedent and that he was also afraid that the decedent might shoot him. This part of the confession was material and relevant to appellant’s defense. As we stated in Williams v. State, supra, and as we restate in the instant case, all material and relevant portions of a confession are, indeed, admissible.

We submit that the offending or prejudicial portion of a confession is simply deleted, upon appellant’s objection, in order to avoid the prejudicial aspect of the confession.

Reversed and remanded.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. The “Denno” hearing in this trial to the court, sitting without a jury, was held simultaneously with the presentation of the evidence in chief. It looks somewhat ridiculous for the trial judge to hold a “Denno” hearing and after striking certain portions of the confession to take another seat and hear the same testimony again without the struck portions.

For the reasons stated, I respectfully dissent.

John A. Fogleman, Justice,

concurring on denial of petition for rehearing. I concur in the denial of the petition for rehearing only because the trial judge overruled a specific and proper objection to the prejudicial evidence. The presumption that a trial judge considers only competent evidence is only a presumption which is overcome when there is an indication that the trial judge did give some consideration to inadmissible evidence. See Mason v. Morel, 234 Ark. 660, 354 S.W. 2d 19, cited by the state. In the context in which this objection and ruling were made, the usual presumption should not be applicable.

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

        See: Byrd et al v. State, 251 Ark. 149, 471 S.W. 2d 350 (1971) where we held that where a cross-implicating confession in a joint trial is prejudicial to one of the co-defendants, the solution to the problem would be to delete any of the offending portions, if a deletion is feasible. See also: Bruton v. United States, 391 U.S. 123 (1968).


author: Maurice Cathey, Special Justice.

text:
    Robert D. DIGBY v. Barbara Lynn DIGBY
    77-155
    567 S.W. 2d 290
    Opinion delivered June 26, 1978
    (In Banc)

      Dale Price, of Howell, Price, Howell & Barron, for appellant.

      Joe Holmes and William Owen, of Holmes, Holmes & Trafford, for appellee.
   Maurice Cathey, Special Justice.

This is an appeal from a Pulaski Chancery Court decree which refused to modify, at the request of the appellant, Robert D. Digby, an earlier decree awarding to his divorced wife, Barbara Lynn Digby, the custody of their two sons, Darrell, now ten years of age, and Tom Lawson, who is now seven. A cross appeal challenges the lower court’s refusal to award attorney’s fees to appellee in connection with appellant’s unsuccessful efforts to modify the earlier decree.

Robert D. Digby and Barbara Lynn Digby were divorced in 1973, with the custody of the minor children being awarded to the mother, the appellee, pursuant to the stipulation of the parties and without any evidence on this issue being heard by the chancellor. Appellant was given visitation rights which included the right to have the minor children visit him on an overnight basis every other weekend. The decree directed that neither party should permanently remove the children from the jurisdiction of Pulaski Chancery Court without an appropriate order of that court.

On February 26, 1976, appellant, the father, filed a petition seeking custody of the children on the ground of a material change in circumstances since the entry of the original decree. Appellee denied that custody should be changed and subsequently filed a petition asking that she be allowed to remove the two children to Memphis, Tennessee, where, she alleged, she had “obtained an advancement in employment.” The appellant replied, stating that the appellee had, in fact, already removed the children to Memphis without court approval, asked that she be held in contempt, and renewed his contention that a change of custody should be made so that he would have custody of the children.

On August 20, 1976, at a hearing held on the limited issue of whether the appellee should be allowed to remove the children to Memphis, appellee testified that she had obtained employment with a Memphis bank at a substantial pay increase over that received by her in her existing employment in North Little Rock. The court then ordered that the appellee be allowed to remove the children to Memphis where, apparently, they were already living.

Ten days later, on August 30, 1976, appellant filed a petition alleging that appellee had perjured herself at the earlier hearing with respect to her having obtained employment in Memphis and asked that she be required to return the children to Arkansas.

On September 3, 1976, the chancellor held a hearing on appellant’s latest petition and found that appellee’s testimony, at the hearing of August 20, 1976, had been false and misleading. The chancellor directed that the children be returned to Arkansas pending a final hearing on the custody question. In connection with the hearing of September 3, 1976, the paternal grandparents, Tom F. and Jane H. Digby, intervened asserting their right to reasonable visitation as to their grandchildren.

At this stage of the litigation, the Pulaski County chancellor who had heard the earlier matters disqualified himself and Chancellor Lawrence E. Dawson of the Fourth Chancery Circuit was designated to decide the issues in dispute. Following a three day hearing, Chancellor Dawson made the following findings:

(a) The custody of the two minor children should remain in appellee;

(b) Appellee should be allowed to remove the children to Memphis, Tennessee;

(c) Specific times of visitation were granted to appellant and to the intervenors as paternal grandparents;

(d) Each party was ordered to pay his own attorneys’ fees and court costs.

I.

While this court considers the evidence on a Chancery appeal de novo, it will not reverse the chancellor unless it is shown that the lower court decision is clearly contrary to a preponderance of the evidence. Particularly where the credibility of witnesses appearing before the chancellor is concerned, this court attaches substantial weight to the chancellor’s findings on material issues of fact. Minton v. McGowan, 256 Ark. 726, 510 S.W. 2d 272 (1974); Hampton v. Hampton, 245 Ark. 579, 433 S.W. 2d 149 (1968).

The primary consideration in awarding the custody of children is the welfare and best interest of the children involved. Other considerations are secondary. Moore v. Smith, 255 Ark. 249, 499 S.W. 2d 634 (1973); Benson v. Benson, 237 Ark. 234, 372 S.W. 2d 263 (1963).

A chancery court decree with respect to the custody of a child is subject to modification in the light of circumstances which have changed since the rendition of the original decree. Also, if there were facts not known to the trial court in connection with the rendition of the original decree, these matters may be used as the basis for modification, if this would be in the best interest of the child. Bond v. Rich, 256 Ark. 51, 505 S.W. 2d 488 (1974); Marr v. Man, 213 Ark. 117, 209 S.W. 2d 456 (1948).

Appellee admits that following her divorce from appellant, she participated in an affair with a North Little Rock married man pursuant to which she traveled with him to various locations throughout the United States and had sexual relationships with him on each of these trips. Also, it is admitted that the appellee and her married friend had sexual relations in the appellee’s home. Appellee seeks to rationalize this relationship by asserting that none of these matters took place in the presence of the children and occurred after her divorce and at a time when her married friend was separated from his wife. While both the appellee and her married friend assert that the relationship began after the Digby divorce, the chancellor concluded that the relationship had begun prior to it. This conclusion is amply sustained by an entry made by appellee in her diary in which she refers to having had sexual relations with this married man while each of them was in the hospital at a time prior to the divorce.

The appellant testified that he did not know of the affair between the appellee and this married man at the time he consented to her having the custody of the two boys and that he would not have consented to the custody provisions of the original decree if he had known of this affair. Also, it is shown that nothing with regard to this affair was made known to the chancellor when the original custody decree was entered.

While the appellee and her two sons were residing in Memphis, appellee permitted a young man, whose last name she professed not to remember, to spend the night with her and the two boys in appellee’s apartment. The sleeping arrangements are in dispute. The appellee testified that on this occasion, her two boys slept with her in her bedroom while the young man slept in the bedroom of the younger Digby child. Darrell Digby testified that he and his brother occupied the same room, with the male visitor spending the night in the room of Lawson Digby, and the mother in another room.

There was also evidence to the effect that the appellee had dated another married man while he was separated from his wife and on one occasion, this man, his two children, the appellee and the Digby boys spent the night sleeping in a single tent, with another lady present on the trip sleeping in a ranch house on the property.

A North Little Rock neighbor of the appellee testified that she observed Darrell, while in appellee’s custody, playing out late at night, sometimes as late as 10:30 or 11:00 p.m. Another neighbor observed Darrell playing as late as 9:00 or 10:00 in the evenings. There was evidence that the appellee left the boys with babysitters on a large number of occasions. Darrell, also, was reported as having visited at the home of a neighbor from the middle of the morning until after 5:00 o’clock p.m. with, apparently, no inquiry from or supervision on the part of the appellee.

There is ample evidence to support the conclusion that the appellee has not been truthful with respect to all of her testimony as given in this case. She obtained the permission of Pulaski Chancery Court to remove the boys from North Little Rock to Memphis upon her assertions that she had obtained a better paying job in a Memphis bank. Actually, the facts show, she not only had no such job, but had never applied for one.

Her testimony concerning the extent of the association between the Digby boys and the married man with whom she admittedly had sexual relations on numerous occasions varies substantially from that given by Darrell Digby.

Appellee offered no evidence as to any religious affiliations or church attendance on the part of the boys while they were in her custody following the divorce, although the family had apparently attended church with substantial regularity prior to the termination of the marriage.

Appellee’s father testified but did not testify concerning anything about the relationship between the appellee and the boys nor as to the moral environment in the appellee’s home.

Appellee’s own testimony shows that she does not see anything morally wrong with her having had the sexual relationship with the married man so long as these matters took place outside the presence of the boys and after the divorce.

While the chancellor stated that the appellee may have repented for her previous actions, nothing in the record supports this conclusion.

The testimony of Darrell Digby was to the effect that, at the time of the hearing, he preferred to live with his mother because “she takes us a lot more places and we have a lot more fun with our mother.”

While all of the evidence in the record is not favorable to the appellant and his present wife, the greater weight impels the conclusion that the Digby boys would be better off with their father and stepmother than with the appellee.

Willard Zeizer had served as minister of education at the Park Hill Baptist Church, North Little Rock, where he knew both appellant and appellee and the appellant’s present wife. His opinion was that he felt very strongly that the welfare of the children would be best met by their residing with their father. He testified that appellant had a good reputation in the community for truthfulness and veracity while the appellee did not.

Fred Teasley testified that he had observed the Digby boys following the divorce while they were with the appellant and his present wife and that it was his opinion that the boys would be provided an outstanding home if they resided with Bob and Cindy Digby.

Pat Armbrust, a witness for appellant, testified to substantially the same effect, as did Dr. Cary Heard, the pastor of Park Hill Baptist Church in North Little Rock.

We recognize that not all of the evidence presented is favorable to the appellant.

It is shown that on one occasion, Darrell Digby found a bicycle in some nearby woods which his father permitted him to bring home and keep without reporting the matter to the police. There was some evidence to the effect that the appellant and his present wife may have lived together prior to their marriage and that appellant’s present wife dated a married man prior to the marriage. There is, however, no evidence of any misconduct of either the appellant or his present wife since their marriage.

When the evidence is viewed in its entirety, it dearly preponderates to the effect that the Digby boys would have a more stable home relationship and a better sense of moral values if they were in the custody of the appellant and not the appellee.

The appellee is, of course, entitled to reasonable visitation with respect to her sons. We believe that it would not be in the best interest of the boys for this visitation to allow her to have them on alternate weekends as is now the case with regard to appellant. Both the appellant and his wife work and much of the social life of the family, as well as the activities of the boys, will take place on weekends. So long as appellee resides in the Memphis area or, if she should return to the North Little Rock area, we believe that she should have the right to have the boys visit her at her home one week end each month, beginning Friday evening and with the boys to be returned to their father by early Sunday evening. For a period of two weeks during the summer vacation, the appellee should be permitted to have the boys with her. Following Thanksgiving, the appellee should be permitted to have the boys for the remainder of the week in which this holiday falls.

So long as the appellee resides in Memphis or if she should return to the North Little Rock area, it will be the responsibility of the appellant to take the children to appellee’s home at the beginning of the visitation and to pick them up at the end of this period. This may appear to be rather burdensome from the standpoint of the appellant, but since the visits will generally be only once a month, the father should be willing to assume this responsibility.

Hopefully, the parties, with the aid of their counsel, can work out the details of these visitation rights without further resort to court. If they cannot, the trial court should determine any further details which are consistent with this opinion or necessary to its implementation.

II.

The trial court denied to appellee any award of attorney’s fee with respect to the extensive litigation which has taken place since the original divorce.

An attorney’s fee should be awarded to appellee in connection with this litigation. The record shows that the appellee has very little income at the present time, working only as a substitute teacher in Memphis and doing some work as a model. While the exact income of appellant is not shown, he is shown to be a professional man and to have a substantial earning capacity. Even though the appellee has not prevailed in this litigation, she was, nevertheless, entitled to an opportunity to employ counsel to present her case to both the trial and appellate courts. Her own income appears inadequate for this purpose.

We therefore sustain the cross appeal and direct that an attorney’s fee of $2,500.00 be awarded to appellee which will include the allowance for attorney’s fees in this court on appeal. The costs of the appeal are taxed as against the appellant.

This cause is reversed both on the direct appeal and the cross appeal and remanded fóF proceedings consistent with this opinion.

Holt and Hickman, JJ., not participating.

Special Justice Marvin Thaxton joins in the opinion.

Byrd, J., dissents.


author: Carleton Harris, Chief Justice.

text:
    Vernon D. ROBERTS, County Judge et al v. Ordie A. WATTS, County Clerk
    78-88
    568 S.W. 2d 1
    Opinion delivered July 3, 1978
    (In Banc)

      James A. Ross, Jr., of Ross & Ross, for appellants.

      Clint Huey, for appellee.
   Carleton Harris, Chief Justice.

The Quorum Court of Drew County adopted a county ordinance on July 7, 1977, part of which altered the duties performed by the office held by appellee, Ordie A. Watts, county clerk. The ordinance was approved by the county judge. Thereafter, appellee asked for declaratory judgment finding the ordinance in question unconstitutional and following a hearing, on January 13, 1978, the chancellor found part of Ordinance 13 to be in violation of Amendment 55 to the Constitution of the State of Arkansas. This appeal followed.

With the goal of streamlining its county government, the Drew County Quorum Court passed emergency ordinance 13 (on July 7, 1977), Article 4 being the section at issue, providing:

“All duties prescribed by law for the disbursement of appropriated county funds assigned to the county clerk shall hereinafter become the duties of the Department of Financial Management.”

According to the county judge, appellant Vernon Roberts, the purpose “was to establish a financial management office which would go into operation wheri the supplies were printed and received” and implemented by a county court order authorized by the ordinance. The function of such a financial management office would be maintaining claims dockets and issuing warrants, and up to this time the county clerk of Drew County had always issued the county warrants.

The authority for the passage of the ordinance was-§ 100 of Act 742 of the General Assembly of 1977, Ark. Stat. Ann. § 17-4103, (2) and (3) (Supp. 1977), (also alleged to be unconstitutional), which provides:

“The Quorum Court of each of the several counties may prescribe by ordinance the department . . . and may prescribe the functions of all offices, departments, and boards; provided, however, that no ordinance shall be enacted by a Quorum Court which: . . .
(2) alters the organization of elected county officials established by the Constitution, except through the provisions of Section 2(b) of Amendment Number 55 to the Constitution; provided, however, that any function or duty assigned by statute may be reassigned by ordinance; or
(3) limits any provision of state law directing or requiring a county government or any officer or employee of a county government to carry out any function or provide any service; provided, however, that nothing in this section shall be construed to prevent the reassignment of functions or services assigned by statute where such reassignment does not alter the obligation of the county to continue providing such function or service.’’

Appellee contends that these provisions are in conflict with Amendment 55, § 2(b), which sets out:

“The quorum court may create, consolidate, separate, revise, or abandon any elective county office or offices except during the term thereof; provided, however, that a majority of those voting on the question at a general election have approved said action.”

It apparently is his contention that the revision of his duties requires the approval of a majority of persons voting on the question at a general election, before the ordinance can become effective. This has not been done._

We are unable to pass on the merits of this controversy for the reason hereafter set out, but preliminary matters should be disposed of.

It is argued by appellants that the county clerk is not a proper party and is not entitled to have the matter determined by declaratory judgment. It is stated that there are “public policy arguments against one official bringing suit against another,” but there are no cases cited nor argument presented in support of this statement. Ark. Stat. Ann. § 34-2502 (Repl. 1962), relative to declaratory judgments, provides:

“Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.”

Ark. Stat. Ann. § 34-2512 (Repl. 1962) states that:

“The word ‘person’ wherever used in this Act shall be construed to mean any person, partnership, joint stock company, unincorporated association, or society, or municipal or other corporation of any character whatsoever.”

And Ark. Stat. Ann. § 34-2511 declares that the act is remedial:

“Its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.”

It is evident that Watts is qualified under the statute to bring this action. Certainly he is a “person,” and his status, relationship with other offices, and duties are uncertain because of the ordinance in question.

However, it is necessary that the judgment be reversed because of the fact that the Attorney General of Arkansas was not served with a copy of the proceeding, and thus not given an opportunity to be heard. Ark. Stat. Ann. § 34-2510 (Repl. 1962), a part of Act 274 of 1953, provides that in any proceeding involving the validity of a municipal ordinance or franchise, the municipality shall be made a party, entitled to be heard, and if the statute, ordinance or franchise is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceeding and be entitled to be heard. It is true that this statute only states that where a municipal ordinance is alleged to be unconstitutional, the attorney general shall be entitled to be heard, and here we have a county ordinance that is involved. However, as far back as 1878, we held that counties, cities, and towns, are municipal corporations. See Eagle, et al v. Beard, et al, 33 Ark. 497. This holding was reiterated in City of Hot Springs v. Gray, 215 Ark. 243, 219 S.W. 2d 930. Also, in the case of Laman, Mayor v. Martin, 235 Ark. 938, 362 S.W. 2d 711 (1962), an action for declaratory judgment was filed by employees of the North Little Rock Electric Department who had been dismissed from their jobs. These employees were seeking to establish the validity of a civil service ordinance which had been passed under the authority of Act 339 of 1939. Appellants urged the unconstitutionality of Act 339 as applied to North Little Rock, but a decree was entered in favor of appellees. This decree was reversed, the court finding that the City of North Little Rock, which had not been included as a party, was a necessary party, and we then also added that “because Act 339 of 1939 was alleged to be unconstitutional by appellants, [our emphasis], a copy of the proceeding was required to be served on the attorney general, who is entitled to be heard in such matters.” In the instant case, the ordinance was passed under the authority of § 100 of Act 742 of 1977 (as alleged by appellee in his complaint), and if § 100 of Act 742 is valid, it would appear that the ordinance is valid; however, if § 100 of Act 742 is in conflict with Amendment 55 and thus invalid (as alleged by appellee), it follows that the ordinance would be unconstitutional.

It is certainly entirely proper that the attorney general be served with a copy of the proceeding and participate in the case. After all, we have involved in this case an interpretation of Amendment 55, adopted by the people, and the question presented is one that could well affect any other county in the state since other counties may well desire to pass ordinances with some similarity under Act 742 of the 1977 General Assembly. In other words, Act 742 is state-wide in its application, and certainly the state’s chief legal officer should have an opportunity to be heard on the question of its validity. Since the attorney general was not served with a copy of the proceeding in the instant litigation, it is necessary that the judgment be reversed and the cause remanded to the Drew County Chancery Court for further proceedings.

It is so ordered.

      No brief has been filed by the appellee, and we have no idea as to his answers to the contentions of appellants, other than what is set out in his complaint and amended complaint, termed “Petition for Injunctive Relief” and “Amendment to Petition and Joinder of Additional Party Defendants.”