author: Donald L. Corbin, Justice. Tom Glaze, Justice, David Newbern, Justice,

text:
    Bryant NORWOOD v. Sherri ROBINSON
    93-176
    866 S.W.2d 398
    Supreme Court of Arkansas
    Opinion delivered December 6, 1993

      Evelyn L. Mooreland, for appellant.

      Gene O’Daniel, for appellee.
   Donald L. Corbin, Justice.

This case was certified to us by the court of appeals pursuant to Ark. R. Sup. Ct. 1 -2(d) because it presents a matter of significant interest requiring the interpretation and interplay of two statutes, Ark. Code Ann. §§9-10-113 and 9-10-109(a) (1987). Appellant, Bryant Norwood, appeals a Pulaski Chancery Court order denying his motion for a change of custody. For reversal, he asserts the chancellor erred in requiring a showing of a material change of circumstances since the finding of paternity. Alternatively, appellant asserts the chancellor erred in finding a material change of circumstances did not exist. We affirm the chancellor’s order.

Appellant was determined to be the biological father of a child born April 28, 1988, in an uncontested paternity suit. The order was entered on February 2, 1989. In the order finding paternity, appellant was granted reasonable visitation and ordered to pay $160.00 per month in child support. The order did not expressly address custody; however custody vested in the mother pursuant to section 9-10-113(a):

When a child is born to an unmarried woman, legal custody of that child shall be in the woman giving birth to the child until the child reaches the age of eighteen (18) years unless a court of competent jurisdiction enters an order placing the child in the custody of another party.

Before 1987, no presumption of custody was placed in section 9-10-113; either parent of an illegitimate child could petition for custody under the same three criteria. In 1987, the legislature changed this statute by adding a presumption of custody in the mother and leaving the father with the right to seek custody after establishing paternity. In the instant case and pursuant to the current statute, custody was established and remained in the mother from the child’s birth in April 1988.

Appellant was taken to court on a motion for contempt for his failure to pay child support. After the hearing, the chancellor entered an order on October 16, 1991, finding appellant substantially in arrears in his support payments. One week later appellant filed a motion to change custody. In his motion appellant asserted that a material change of circumstances had occurred and that the best interests of the child would be served in his custody.

Section 9-10-113(a) provides that an illegitimate child shall be in the custody of its mother unless a proper court orders otherwise. Also under this statute, a biological father may petition for custody, provided he has established paternity. Custody may be granted if the court finds the following:

(1) He is a fit parent to raise the child;
(2) He has assumed his responsibilities toward the child by providing care, supervision, protection, and financial support for the child; and
(3) It is in the best interest of the child to award custody to the biological father.

Id. at subsection (c).

Along with the above requirements, the chancellor charged appellant with showing a change of circumstances since the last custody order, which the chancellor deemed the initial determination of paternity. The chancellor added this to the three requirements listed in section 9-10-113(c) since a “material change of circumstances” is required in other change of custody cases pursuant to divorce. See Bennett v. Hollowell, 31 Ark. App. 209, 792 S.W.2d 338 (1990). The chancellor based this requirement on Ark. Code Ann. § 9-10-109(a)(1) (1987):

Subsequent to the finding by the court that the defendant is the father of the child, the court shall follow the same guidelines, procedures, and requirements as set forth in the laws of this state applicable to child support orders and judgments entered by the chancery court as if it were a case involving a child born of a marriage in awarding custody, visitation, setting amounts of support costs and attorneys’ fees, and directing payments through the clerk of the court.

(Emphasis added).

■ Appellant’s first point on appeal is that it was error to require the showing of a material change in circumstances in addition to the three criteria stated in section 9-10-113(c). Appellant asserts there had not been an initial determination of custody, and therefore it placed an unfair burden on him to require him to demonstrate a material or substantial change in circumstances.

Appellant’s contention there was no initial determination of custody is without merit. Custody vested in the mother at birth pursuant to section 9-10-113(a) and was implicitly affirmed in the paternity order granting the father visitation. At the hearing the following exchange occurred between counsel for appellant and the chancellor:

THE COURT: And it’s not relevant anything before the order that gave her custody, whenever that was. It has got to be after that.
[COUNSEL]: Okay. There really has been no order giving her custody, Your Honor. There was an order establishing paternity in February of ‘89.
THE COURT: Okay____
[COUNSEL]: Well, Your Honor, the statute, 9-10 [113(c)], I’ve got it here, states that the father may petition the court for custody.
THE COURT: Absolutely.
[COUNSEL]: It does not say that that is contingent upon a change of circumstance.
THE COURT: Well, he has a right, but paternity was established and custody was established back in February of ‘89.
[COUNSEL]: Well, the statute made no reference of custody, I mean the order. The judgment order made no reference of custody, Your Honor. It simply established paternity and ordered him to pay child support.
THE COURT: And gave him reasonable visitation rights. Okay. Let’s go ahead then.

Appellant correctly states that Arkansas statutory procedure provides a father may petition for custody after paternity is established. It is not an unfair burden to require the biological father to prove a change of circumstances when the law presumes the child shall be in the custody of the mother and the paternity order establishes visitation. In divorce cases, custody is vested in one or both .parents at the time of the divorce. In divorce proceedings, custody shall be awarded on the basis of the best interests of the child regardless of the gender of the parent. Ark. Code Ann. § 9-13-101 (1987). That determination is reflected in the order or decree which is considered a final adjudication. See McCormac v. McCormac, 304 Ark. 89, 799 S.W.2d 806 (1990). Each has the right to request a change in custody. It is then that party’s burden to show that there has been a change in circumstances since the original order establishing custody or that there were facts not presented at the initial hearing that would bear on the best interests of the child. See Bennett, 31 Ark. App. 209, 792 S.W.2d 338.

Fathers of illegitimate children should certainly bear the same burden as fathers of legitimate children bom of marriage. The order establishing paternity gave the statutory presumption the effect of a judicial determination. Implicit in the order of paternity establishing visitation was a determination that custody should continue to rest in the mother. Unless there was a change in circumstances since the order, the child should not be uprooted from her life-long custodial relationship with her mother. We find these statutory sections to be congruous. The finding of paternity and the establishment of visitation therein is a final determination from which to use the same standards as other custody situations.

After determining that the chancellor used the correct standard upon which to determine whether or not to grant a change of custody, we now address appellant’s alternative argument. Appellant argues that the chancellor erred in finding that a change in circumstances sufficient to warrant a change in custody had not been shown. Although we review chancery cases de novo on the record, the findings of the chancellor will not be disturbed unless clearly against a preponderance of the evidence. Magnolia School Dist. No. 14 v. Arkansas State Bd. of Educ., 303 Ark. 666, 799 S.W.2d 791 (1990). Since the question of the preponderance of the evidence turns largely on the credibility of the witnesses, we defer to the superior position of the chancellor. Callaway v. Callaway, 8 Ark. App. 129, 648 S.W.2d 520 (1983); ARCP 52(a). Deference to the chancellor is even greater when dealing with child custody. Repeatedly our courts have stated that there are no cases in which the superior position, ability, and opportunity to view the parties carry as great a weight as those involving minor children. See e.g. Watts v. Watts, 17 Ark. App. 253, 707 S.W.2d 777 (1986). We cannot say that the chancellor’s determination is clearly against the preponderance of the evidence.

Both parents presented witnesses, and conflicting reports came from both sides as to the child’s care and treatment. In his motion to change custody, appellant claimed that the child had spent more than half of the time with him at appellant’s mother’s residence. Further, appellant worried that the environment at appellee’s mother’s residence and the subsequent move to an apartment was a poor situation for the child. Appellee had moved to an apartment with another single parent and child after leaving her mother’s residence. Appellee maintained that she desired to be more independent and assume responsibility for herself and her child. The child support arrearages were put into evidence. In sum, neither party wished the other to have custody, and neither custody situation was ideal. An attorney ad litem visited both parents’ homes and presented a report in which he stated both parents seemed genuinely concerned about the child and both appeared capable of providing a good home although in both cases it was somewhat crowded.

The chancellor found that appellant failed to demonstrate a substantial change of circumstances in order to justify a change of custody, but visitation was increased. After a de novo review of the record as presented to us, we cannot say that the chancellor’s findings were clearly against the preponderance of the evidence.

Affirmed.

Glaze, J., concurs.

Newbern, J., dissents.

Tom Glaze, Justice,

concurring. I concur. Ark; Code Ann. § 9-10-113 (1977) provides for the award of custody of an illegitimate child in two instances. One, when a child is born to an unmarried woman, legal custody of that child is presumptively given to the woman unless a proper court places that custody with another party. See § 9-10-113(a). This legal presumption recognizes that in many cases, if not most, the biological father is absent and is unavailable to care for the child. The provision does authorize a competent court to place custody in another party if the circumstances warrant and it is shown custody should not be in the mother. In instance two, a biological father, after he has established paternity in a competent court, may seek custody of his child if (1) he shows he is a fit parent, (2) he has provided care, supervision, protection, and financial support for the child, and (3) it is in the child’s best interests to award the father custody. See § 9-10-113(c)(l)(2) and (3). This second procedure merely recognizes the equal protection right a biological father has in establishing a parental and custodial relationship with his child.

In this case, the biological father, Bryant Norwood, did not initially file suit to establish paternity of the parties’ child. Instead, the mother, Sherri Robinson, filed her complaint against Bryant, and after she established paternity by showing Bryant to be the child’s father, the court, by order dated February 2, 1989, awarded Bryant visitation rights and ordered him to pay child support in the sum of $160.00 per month. In that proceeding, Sherri gained legal custody of the parties’ child under § 9-10-113(a). Bryant never appealed that court order, nor had he sought custody of the parties’ child in that initial proceeding. Clearly, like in divorce proceedings involving children, both Bryant and Sherri had the opportunity to litigate the custody issue. Bryant simply showed no interest in doing so — at least until Sherri sought enforcement of child support arrearages against Bryant.

Approximately two years and nine months after Sherri established paternity in Bryant, Bryant sought custody of the parties’ child in the same proceeding Sherri initiated to enforce payment of child support payments. In doing so, Bryant claims the trial judge erred in requiring him to show a material change in circumstances since the time the parties’ child was placed in Sherri’s custody on February 2, 1989. He argues that he only need show the three criteria in § 9-10-113(c)(l)(2) and (3) which are set out hereinabove.

Bryant, of course, had his opportunity not only to establish paternity, but also to seek custody of the parties’ child. He did neither. The February 2, 1989 decree was a final order, and like divorce decrees involving child support payments, custody and visitation rights, the court retained jurisdiction only to enforce those rights or to modify them upon a showing of a material change in circumstances. Ark. Code Ann. § 9-10-109(a) (1987).

Although the three criteria contained in § 9-10-113(c)(l)(2) and (3) are considerations a trial judge will consider when a change of custody is sought, certainly the judge is not limited to those factors. Again, those three factors are ones the trial court considers when a biological father establishes paternity and seeks custody, and here he failed to do either until after an order became final vesting custody in Sherri.

For these reasons and the others related in the majority opinion showing Bryant failed to show a material change of circumstances; I would affirm.

David Newbern, Justice,

dissenting. When a child is born to an unmarried woman, the child must be in the legal custody of someone, hence the General Assembly’s unremarkable determination that custody shall be in the mother who has just given birth. Ark. Code Ann. § 9-10-113(a). The granting of visitation rights to the father in the circumstance of a child newly born is equally unremarkable and, to me, does not signify that the court which established paternity reached any conclusion about which parent should have custody.

Subsection (c) of that same statute says that if the father of the child born in these circumstances wishes to have custody transferred to him, he must show he is a fit parent, has assumed his responsibilities to the child, and it is in the child’s best interest that the father have custody. It does not require a showing of a change in circumstances.

The Chancellor’s addition of the requirement that Mr. Nor-wood show a change in circumstances was wrong. The General Assembly had good reason for leaving that requirement out of the list stated. If the mother of a child is totally incapable of caring for the child, and the father would make an ideal custodian, should a chancellor be allowed to hold that custody must remain with the mother because she has always been incompetent and the father has always been competent, and thus there has been no change in circumstances? Of course not.

Neither the Chancellor’s mistake nor the majority opinion is saved by the reference to Ark. Code Ann. § 9-10-109(a)(1) (1987). That statute is a general one setting forth procedure to be followed by the Chancellor after paternity has been established. While it states the Chancellor shall use general rules applicable to determinations with respect to children bom of marriages, it has nothing specific about what must be shown to change custody.

Even if it could reasonably be said that § § 9-10-113(a) and 9- 10-109(a)(1) are conflicting statutes in pari materia, § 9-10-113(a) would control. Where a conflict in two such statutes exists, “the more specific statute controls over the more general one.” 2A N. Singer, Sutherland Stat. Const. § 51.02 (5th ed. 1992). The specific should always govern the general as it is a much better indicator of legislative intent. Section 9-10-113(a) is very specific; § 9-10-109(a)(1) is not.

The majority’s position sets a dangerous precedent. Despite the fact that we can review this case de novo it should be returned to the Chancellor who is in a much better position than we to evaluate the parties’ testimony and that of other witnesses. While there is doubt that Mr. Norwood met the second criterion of § 9-10- 113(a), that of sufficient support of the child, that doubt is clouded by evidence that the child spent a lot of time with Mr. Norwood and his mother who may well be the child’s best hope. There is some suggestion that while in their care, Mr. Norwood gave a good deal of unrecorded financial support to the child. I simply cannot say how the Chancellor would have, or should have, ruled had changed circumstances not been erroneously used as a criterion for determining which parent should have custody.

I respectfully dissent.


source: Caselaw Access Project

author: Donald L. Corbin, Justice.

license: Public Domain

text:
    Angela Renee RATHBUN v. Deborah WARD, Individually, and as Next Friend of Shannon McDaniels, Apolonio Paul Hernandez and Martha Sue Shepley, Wylladean Richards
    93-412
    866 S.W.2d 403
    Supreme Court of Arkansas
    Opinion delivered December 6, 1993

      Jones, Hixson & Jones, by: Kenneth S. Hixson, for appellant.

      Odom, Eliott, Winburn & Watson, by: J. Timothy Smith, for appellee Deborah Ward.

      Boyce R. Davis Associates, by: Boyce R. Davis, for appellees Hernandez and Shepley.

      Davis, Cox & Wright, by: Don A. Taylor, for appellee Richards.
   Donald L. Corbin, Justice.

A Washington County Circuit Court jury assessed 75% of the fault against appellant, Angela Renee Rathbun, and 25% of the fault against separate appellee, Wylladean Richards, for injuries sustained by passengers in Rathbun’s automobile when Richards’ vehicle rear-ended Rathbun’s vehicle. Rathbun presents seven issues on appeal. We find no error and affirm.

I. INSUFFICIENT EVIDENCE OF NEGLIGENCE

Rathbun contends the trial court erred in refusing to grant a directed verdict or judgment notwithstanding the verdict and abused its discretion in failing to grant a new trial as there was substantial evidence to support the jury’s finding of Rathbun’s negligence. Rathbun argues there was no evidence that she was negligent because she was the driver of the forward vehicle and had the superior right to leave the highway to make a turn on an intersecting driveway.

ARCP Rule 59(a) provides that a new trial may be granted when the verdict or decision is clearly contrary to the preponderance of the evidence. Where such a motion for new trial is denied, the test on appeal is whether there is substantial evidence to support the jury verdict. Gipson v. Garrison, 308 Ark. 344, 824 S.W.2d 829 (1992). Similarly, where a denial of a motion for directed verdict or a motion for judgment notwithstanding the verdict is denied, we must also determine whether the verdict is supported by substantial evidence. Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993); Dr. Pepper Bottling Co. v. Frantz, 311 Ark. 136, 842 S.W.2d 37 (1992).

In determining the existence of substantial evidence, we view the evidence in the light most favorable to the party on whose behalf the judgment was entered and give it its highest probative value, taking into account all reasonable inferences deducible from it. Mankey, 314 Ark. 14, 858 S.W.2d 85; Gipson, 308 Ark. 344, 824 S.W.2d 829; Frantz, 311 Ark. 136, 842 S.W.2d 37. In reviewing the evidence, the weight and value to be given the testimony of the witnesses is a matter within the exclusive province of the jury. Pineview Farms, Inc. v. A. O. Smith Harvestore, Inc., 298 Ark. 78, 765 S.W.2d 924 (1989).

The evidence reveals that on August 21, 1991, Rathbun was operating her Ford Fiesta on State Highway 170 toward Devil’s Den State Park. Four teen-aged friends were passengers in her car. As she slowed her vehicle to make a left turn, it was rear-ended by Richards’ pickup truck. One of Rathbun’s passengers was killed, and another sustained head injuries. The site of the accident was on an up-grade in the highway that curves to the right.

Rathbun testified that she was driving 30 to 35 miles per hour up a mountain and came around a curve to the right. There was a pedestrian on the left side of the road. Rathbun did not know the pedestrian, but one of the passengers recognized him and said, “Stop. There’s Todd.” Rathbun testified that she downshifted into second gear and activated her left turn signal. She stated that she did not slow the car abruptly although she may have touched her foot on the brake pedal. She testified she did not look in her rear-view mirror. The next thing Rathbun remembered was the rear of her car being struck by Richards’ pickup. Rathbun stated that only three or four seconds elapsed from the time she began slowing down to the time of impact.

The passenger sitting behind Rathbun was Wendy Bigpond. She testified that as they went around the curve, they saw a friend on the side of the road and someone said, “let’s stop.” She testified the Rathbun vehicle started slowing down and was struck from the rear.

The front passenger was Justin Hamby. He testified that they were driving toward Devil’s Den and saw Todd Hanks on the side of the road. He recounted they were looking for a place to pull off the road to stop and give Hanks a ride. Hamby testified that Rathbun’s vehicle was not stopped at the time of impact. He was not sure how fast the car was going at the time of impact but said he knew the car was still slowing down. He estimated the Rathbun vehicle was traveling about five miles per hour when the impact occurred.

Richards testified that she had driven that same stretch of State Highway 170 for 15 years since she lived a few miles farther down the road from the point where the accident occurred. She said she knew there was a driveway turning off the highway to the left in this curve. Richards testified that she was traveling 35 to 40 miles per hour prior to the accident and that she saw a pedestrian walking along the left side of the road about 20 feet short of where the shoulder begins to widen. As she approached the curve, she diverted her attention off the highway toward the pedestrian. She thought the pedestrian might have been her brother because he had been having car problems. She testified that she diverted her attention from the highway and looked at the pedestrian long enough to see that he had the wrong hair color and style to be her brother. The pedestrian turned out to be Hanks. Richards stated that after she returned her attention to the highway, she did not have enough time to apply her brakes or to take any kind of evasive action before her pickup crashed into the rear of Rathbun’s car.

Shannon McDaniels, who was riding in the middle of the rear seat of Rathbun’s vehicle, sustained a head injury and other personal injuries in the accident. She testified at trial that she had no memory of the accident. Paul David Hernandez, who was riding in the right rear seat, died as a result of injuries sustained in the accident.

The pedestrian, Hanks, was walking home from school on the left side of State Highway 170. He testified that he saw the Rathbun car pass him and that the car came to a stop just before impact.

Trooper G.B. Harp is an accident reconstructionist with the Arkansas State Police. He testified the Rathbun vehicle was not stopped in the road at the time of the impact, but was traveling five to seven miles per hour. He testified that Richards should have been able to see the Rathbun vehicle for 324 feet prior to the point of impact and that there was nothing to impair her line of vision. Harp estimated the speed of the Richards’ vehicle to be 28 to 43 miles per hour at the time of impact. He stated there were no skid marks from the Richards’ vehicle.

Our review of the evidence reveals substantial evidence to support the jury’s finding of liability on Rathbun’s part. From the foregoing evidence, the jury could have concluded that Rathbun was negligent in driving her vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, that she failed to keep a proper lookout and to maintain control of her vehicle, or that she failed to maintain a proper speed and came to a sudden stop.

There was conflicting testimony as to whether the Rathbun vehicle was stopped or dramatically slowed. It was certainly within the jury’s province to weigh the conflicting testimonies of Hanks and Richards that the Rathbun vehicle was stopped with the testimonies of Rathbun, Bigpond, Hamby, and Harp, that the Rathbun vehicle was slowing down at the time of impact. The jury obviously concluded that both drivers, Rathbun and Richards were negligent. The jury assigned' fault after hearing all of the testimony by the witnesses while observing their conduct and demeanor on the stand. Both the amount of the verdict and the distribution of fault among the parties are matters within the exclusive province of the jury and we will not substitute our judgment for that of the jury. Simmons v. Frazier, 277 Ark. 452, 642 S.W.2d 314 (1982).

The decision by the trial court denying the motions for directed verdict, judgment notwithstanding the verdict, and new trial are affirmed as there was substantial evidence to support the jury’s verdict.

II. EVIDENCE OF RATHBUN’S DRIVER’S LICENSE

Rathbun contends the trial court abused its discretion in allowing opposing counsel to question defendant Rathbun regarding how long she had held a driver’s license. On redirect, Rathbun was asked: “You had gotten your regular driver’s license when, Ms. Rathbun?” At trial, she objected on grounds of relevance. On appeal, Rathbun argues additionally that A.R.E. Rule 404 prohibits introduction of character traits into evidence in civil cases unless that trait is in issue or it is being offered to reflect upon the veracity of the witness, citing Brown v. Conway, 300 Ark. 567, 781 S.W.2d 12 (1989).

We observe that Rule 404 is not applicable here, as the question had nothing to do with either the good or bad character of Rathbun. However, we do not address the merits of this latter argument as it is raised for the first time on appeal. Reynolds v. Shelter Mut. Ins. Co., 313 Ark. 145, 852 S.W.2d 799 (1993).

Evidence relating to the driving skill and experience of a party is relevant in determining whether that party acted negligently. We cannot say the trial court abused its discretion in allowing the testimony of the length of time Rathbun had been licensed to drive.

III. EXPERT TESTIMONY

Rathbun contends the trial judge abused his discretion by not allowing the opinion of Trooper Harp concerning some gouge marks left on the highway. Trooper Harp was qualified as an expert witness in the field of accident reconstruction. If allowed to do so, he would have explained to the jury that since the gouge marks were straight, they indicated Rathbun’s vehicle was moving at the time of impact; had the gouge marks been curved, they Would have indicated Rathbun’s vehicle was stopped.

We do not address this argument because if indeed the trial court committed error in disallowing the testimony, it was harmless error. Although the trial judge did not allow the testimony about the gouge marks, it did allow Trooper Harp to give his opinion that Rathbun’s vehicle was moving at five to seven miles per hour at the time of impact. Thus, in effect, Rathbun was able to elicit the desired testimony despite the trial court’s exclusion of the testimony in question. Any possible error resulting from the exclusion is thereby rendered harmless.

IV. AMI 901(B)

Rathbun contends the trial court erred in failing to instruct the jury fully on AMI Civ. 3d 901 concerning the common law rules of road. AMI 901(A) requires that a driver of a motor vehicle keep a general lookout, while the bracketed portion of AMI 901(B) requires a driver to keep his or her vehicle under control when the driver sees danger ahead or when it is reasonably apparent the driver is keeping a proper lookout. Rathbun’s counsel proffered the bracketed portion of AMI 901(B). The trial court ruled the bracketed portion was not a proper instruction under the facts of this case because there was no evidence that there was any danger ahead to be perceived.

Rathbun relies on the case of White v. Brewer, 295 Ark. 666, 750 S.W.2d 956 (1988), to support her argument that the bracketed portion of AMI 901(B) should have been given. However, in White, the driver stated that he saw two trucks blocking the roadway prior to the impact. In the present Case, Richards testified she did not see Rathbun’s vehicle until she hit it. In White, the instruction was warranted as the driver admitted seeing the danger ahead.

Based on the testimonies of both drivers, there was no danger ahead to be perceived. On that basis, the trial court ruled the bracketed portion of AMI 901(B) should not be given and that AMI 901(A) adequately covered the facts of this case. We cannot say the trial court erred in so ruling.

V. AMI 901(C)

Rathbun contends the trial court should have instructed the jury on AMI 901(C), which reads as follows:

It is the duty of the driver of a motor vehicle to drive at a speed no greater than is reasonable and prudent under the circumstances, having due regard for any actual or potential hazards.

Rathbun produced no evidence that Richards may have been driving unreasonably fast and therefore this instruction was not applicable. Trooper Harp testified that, at the time of the impact, Richards was traveling only 28 to 43 miles per hour. There was no testimony that Richards was exceeding the speed limit before impact. Therefore, whether Richards was driving unreasonably fast was not an issue, and AMI 901(C) was properly refused.

VI. ARK. CODE ANN. § 16-64-122(d) (Supp. 1993)

Ark. Code Ann. § 16-64-122 declares in pertinent part:

(a) In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.
(d) In cases where the issue of comparative fault is submitted to the jury by an interrogatory, counsel for the parties shall be permitted to argue to the jury the effect of an answer to any interrogatory.

Appellant Rathbun contends the trial court erred in interpreting section 16-64-122(d) by ignoring the plain meaning of the statute and by imposing its own view of what the statute should mean. Rathbun contends the statute is not ambiguous and therefore should have been given its plain meaning. She claims the “plain meaning” of section 16-64-122(d) would allow her the opportunity to explain to the jury the effect of finding either defendant (herself or Richards) at fault on a scale of 1 % to 99%. In other words, she claims subsection (d) would allow her to argue the effects of contribution among joint tortfeasors.

The trial court considered section 16-64-122 in its entirety and stated that the statute defines comparative fault, in essence, as the comparing of fault between a claiming party and the party against whom the claiming party seeks to recover. The trial court ruled that since Rathbun had asserted a claim against Richards, Rathbun and Richards would be allowed to argue the effects of any interrogatories on the issue of comparing fault between Rathbun and Richards, the two defendants. As an example, the trial court noted that he would allow Rathbun to argue that if the jury found Rathbun over 50% at fault, she would not be allowed to recover a penny from Richards. However, since no party had asserted a claim against either of the plaintiffs Ward and Hernandez, the trial court observed that Ward and Hernandez did not “meet [the statute’s] definition of comparative fault.” Thus, the trial court ruled that none of the attorneys would be allowed to argue the effect of joint tortfeasor liability.

On appeal, Rathbun contends that, unlike subsections (a) through (c) of section 16-64-122, subsection (d) does not distinguish between parties; thus the effects of any distribution of fault may be argued, be it a distribution between plaintiffs and defendants, two defendants, or two plaintiffs. Rathbun insists that because “interrogatory” is described only by the word “any”, once the issue of comparative fault is submitted to the jury, section 16-64-122(d) allows counsel to argue the effect of “any” interrogatory, to the jury. Thus, in the instant case, since comparative fault (between Rathbun and Richards on Rathbun’s claim for damages) was submitted to the jury, Rathbun contends section 16-64-122(d) allows her to argue the effects of contribution among Rathbun and Richards on Ward’s and Hernandez’s claims against Rathbun and Richards.

We disagree with Rathbun’s contention. The trial court reasoned that section 16-64-122(d) was expressly limited to issues of comparative fault and that if the legislature intended to allow counsel to argue issues of contribution and indemnity among joint tortfeasors, it would have so provided when it added subsection (d) to the statute. We agree with the trial court’s reasoning. While it is true that the right to contribution from a joint tortfeasor is dependant upon a finding of joint and several liability, we are not persuaded that section 16-64-122(d) allows the concepts and effects of contribution among joint tortfeasors to be argued to the jury. The statute is clear in this respect and is not ambiguous. The trial court did not err in preventing Rathbun from arguing contribution issues to the jury.

We observe that even if the trial court had erred in denying Rathbun the chance to argue the effects of contribution, such an error would be rendered harmless by the jury’s apportionment of fault. The jury apportioned 75% of fault to Rathbun and 25% of fault to Richards. The jury obviously felt Rathbun was responsible for the majority of fault, thus they would not have been persuaded to reapportion the fault based on principles of contribution.

VII. JUROR MISCONDUCT

Pursuant to ARCP Rule 59(a) and Ark. Code Ann. §§ 16-31-101 to -107 (1987 & Supp. 1993), Rathbun moved for a mistrial based on grounds of juror misconduct. Specifically, Rathbun points to four instances of misconduct by juror Ben Harrison and argues those four instances constitute an appearance of impropriety and indicate a reasonable probability of prejudice. Rathbun contends the trial court disregarded the law and abused its discretion by not considering the circumstances as a whole.

Rathbun describes the four instances of misconduct by Harrison as follows. First, during voir dire, Harrison failed to disclose the fact that he attended high school with Conrad Odom, one of the associate attorneys at the firm representing appellee Ward. Second, while in a public restaurant on lunch break from jury deliberations, Harrison waved and said hello to a table of attorneys from the firm representing Ward. Ward’s attorney, Tim Smith, and Odom were both at the table. Third, soon after the jury returned its verdict, Harrison and Ward’s attorney, Tim Smith, exchanged a “high five” handshake in a bar and had a one-hour conversation about the trial. Fourth, Harrison failed to disclose the fact that his father had been sued by Truman Smith, Rathbun’s co-counsel in the instant case, as counsel for a third party in an unrelated lawsuit.

The trial court considered each of the four allegations and concluded there was not enough evidence of juror misconduct presented from which he could conclude Rathbun was possibly prejudiced. First, the trial court observed that, during voir dire, Harrison was never asked a particular question that would have required him to disclose the fact that he attended high school with Odom. Second, the trial court observed there was not enough evidence in the affidavits to warrant a finding that any misconduct occurred as a result of the wave and greeting in the restaurant. Third, the trial court admitted to being very disturbed as to the allegation of the “high-five” congratulatory handshake. However, the trial court ruled there was no evidence in the affidavits to support the allegation that the handshake was anything other than a normal greeting. No eyewitnesses to the greeting between Tim Smith and Harrison confirmed the handshake was a congratulatory “high-five” handshake. Finally, the trial court noted there was no evidence that Harrison was aware of the lawsuit between his father and Truman Smith, Ward’s co-counsel. Even assuming Harrison had such knowledge, the trial court observed that Harrison was never asked to disclose any lawsuits between family members and attorneys in the instant case.

When a motion for new trial has been denied and the primary issue is the alleged inadequacy of the award, we will sustain the denial unless there is a manifest abuse of discretion. Diemer v. Dischler, 313 Ark. 154, 852 S.W.2d 793 (1993). Pursuant to ARCP Rule 59(a)(2), the trial court could have granted Rathbun a new trial if the alleged misconduct of the jury materially affected Rathbun’s substantial rights. Thus, if the trial court abused its discretion in concluding Harrison’s conduct did not materially affect Rathbun’s right to a fair trial, a new trial should have been granted.

As the moving party, Rathbun bore the burden of proving an “appearance of juror misconduct,” which this court has previously held to be sufficient to warrant relief under Rule 59(a)(2). Upon our review of the record, we conclude Rathbun failed to demonstrate even an appearance of misconduct by Harrison. The allegations of juror misconduct were never substantiated with any convincing evidence. Given the trial court’s careful consideration and analysis of this issue, we cannot say the trial court abused its discretion in denying the motion for new trial.

The judgment is affirmed.


author: Robert L. Brown, Justice.

text:
    Kenneth R. CAUDLE v. CITY OF FAYETTEVILLE, State of Arkansas
    CR 93-608
    866 S.W.2d 410
    Supreme Court of Arkansas
    Opinion delivered December 6, 1993

      Donald C. Donner, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   Robert L. Brown, Justice.

Appellant Kenneth R. Caudle appeals a judgment by the circuit court finding him guilty of operating a pawn business in Fayetteville without a permit in violation of City Ordinance § 115.02(A). He was fined $500 and assessed costs of $67.75. He argues on appeal that the circuit court erred in its conclusion and in using civil cases to resolve a criminal matter. We affirm the judgment.

The facts are not in dispute. On April 9, 1992, William Brown and Cecil McFarland, both undercover police officers, entered The Swap Shop owned by Caudle. They were carrying a compact disc player. Officer Brown spoke with Caudle and told him that he “needed to pawn the CD player.” Caudle looked the item over and said, “I will loan you twenty dollars on it.” He then filled out a Bill of Sale with an option to repurchase showing McFarland and Brown as the sellers and had both men sign it. Under the agreement, the sellers had the right to repurchase the item within ten days. After the officers signed the agreement, Caudle gave them twenty dollars, and they left the shop. On April 15, 1992, Officer Brown returned to The Swap Shop and spoke to Caudle again. This time he stated that he wanted to pick up “an article that (he) had pawned” and gave Caudle the Bill of Sale and twenty-four dollars. Caudle returned the identical compact disc player to him. At this point, Brown showed Caudle his badge and asked if he had a city permit to operate a pawn business. Caudle replied that he did not need a permit. The officer then issued him a citation for conducting a pawn operation without a city permit in violation of City Ordinance § 115.02(A). Caudle was tried in municipal court on the misdemeanor, found guilty, and assessed a fine of $300 and court costs of $33. He appealed the decision to circuit court where a bench trial was conducted.

Caudle testified before the circuit court that he decided to discontinue operating his pawn business in December of 1990 due to increased insurance costs associated with the business. He stated that he removed signs referring to a pawn operation and changed his paperwork to show that he no longer operated a pawn shop but a swap shop, the difference being that in the swap shop he purchased the personal property subject to the seller’s right to repurchase. Caudle did not dispute Officer Brown’s testimony that he told the officer that he would “loan him twenty dollars on the C.D. player.” He also admitted that he did not correct Officer Brown when Brown said, “I pawned this C.D. player and I want to buy it back.” Officer Brown further estimated that the value of the CD player was $100.

Additional proof was offered by the City. The words “THE PAWN SHOP” appeared at the time of the citation in large, bright yellow letters on the front of the building. One interior sign also read: “YOU MUST BE 18 YEARS OLD AND HAVE PROPER I.D. OR DRIVERS LICENSE TO PAWN MERCHANDISE.” Finally, it was shown that Caudle had not changed an Alcohol, Tobacco and Firearms license issued to him as a pawnbroker. The circuit court found him guilty of conducting a pawn business without a license in violation of the city ordinance and fined him accordingly.

Caudle’s primary contention on appeal is that the Bill of Sale with right to repurchase was a sale and not a bailment arrangement or pawn and that the agreement decides the issue of what the business was. We do not agree. We have held that in reviewing a business transaction, we will look to the reality of that transaction. Peoples Loan & Investment Co. v. King, Adm., 220 Ark. 236, 247 S.W.2d 21 (1952). In King, the issue was whether a sale or mortgage of land was involved. We stated in our analysis:

If there is an indebtedness or a liability between the parties, either a debt existing prior to the conveyance or a debt arising from a loan made at the time of the conveyance, or from any other cause, and this debt is still left subsisting, not being discharged or satisfied by the conveyance, but the grantor is regarded as still owing and bound to pay it at some future time, so that the payment stipulated for in the agreement to reconvey is in reality the payment of the existing debt, then the whole transaction amounts to a mortgage, whatever language the parties may have used arid whatever stipulations they may have inserted in the instrument. On the contrary, if no such relation whatever of debtor and creditor is left subsisting, then the transaction is not a mortgage but a mere sale and contract of repurchase.

220 Ark. at 240-241, 247 S.W.2d at 23-24.

In the same vein, we stated in a case where we affirmed the trial court on the issue of whether a bill of sale was in actuality a usurious loan: “The law shells the covering, and extracts the kernel. Names amount to nothing when they fail to designate the facts. We are of the opinion that the court was justified in concluding that the papers called ‘bill of sale’ and sale tickets’ were nothing more or less than a shift for a usurious loan of money.” Sparks v. Robinson, 66 Ark. 460, 463-464 (1899). The facts here are clear. Outside signage declared that the business operation was a pawn shop. The officers and Caudle negotiated using terms such as “loan” and “pawn.” The Alcohol, Tobacco and Firearm license identified Caudle as a pawnbroker. The value of the CD player was estimated to be $100, which was significantly more than the amount loaned.

The pertinent Fayetteville ordinances, § 115.01, et seq., provide that no person shall operate a pawn business without a license. Penalties for doing so are included. In addition, Black’s Law Dictionary 1015 (5th ed. 1979) defines a pawn as: “A bailment of goods to a creditor, as security for some debt or engagement; a pledge.” The combined facts reveal that that is clearly what occurred in the instant case. Caudle was conducting a pawn operation while calling it something else. Under such circumstances we will look to the substance of the operation and of the transaction involved. See McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991). Here, substantial evidence not only exists to support the circuit court’s decision, but it abounds.

Caudle posits as his second point that the circuit court erred in using an incorrect standard of proof for a criminal case. He directs us to language in the court’s bench opinion in which it referred to a civil case involving a bill of sale — Sleeper v. Sweetser, 247 Ark. 477, 446 S.W.2d 228 (1969):

[T]he Arkansas Supreme Court many years ago . .. looked at an almost identical transaction and concluded that it was nothing more than as I have indicated a ruse or a device to avoid having the transaction characterized as a loan of money and in that case at a usurious rate of interest.

We do not understand this comment by the circuit court to be an application of an erroneous standard of proof. There is nothing in this statement that remotely suggests that the circuit court was applying the civil burden of preponderance of the evidence to this case as opposed to beyond a reasonable doubt. Caudle’s argument, therefore, must fail. Moreover, we concur with the circuit court that the facts in this case more than support a conclusion that the Bill of Sale was a ruse or device to avoid paying the higher insurance premiums required to operate his pawn business.

Affirmed.

Glaze, J., concurs.


author: Per Curiam.

text:
    Sean BAGLIO v. STATE of Arkansas
    CR 93-1226
    866 S.W.2d 119
    Supreme Court of Arkansas
    Opinion delivered December 6, 1993

      A. Wayne Davis, for appellant.
    No response.
   Per Curiam.

Sean Baglio, by his attorney, has filed a motion for a rule on the clerk.

His attorney, A. Wayne Davis, admits by motion, and brief that the record was tendered late due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979).

The motion is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Ralph GENTRY v. STATE of Arkansas
    CR 93-1199
    864 S.W.2d 870
    Supreme Court of Arkansas
    Opinion delivered December 6, 1993

      C. P. Christian, for appellant.
    No response.
   Per Curiam.

Appellant, Ralph Gentry, by his attorney, has filed for a rule on the clerk.

His attorney, C.P. Christian, admits that the failure to file the record in time was due to a mistake on his part.

We find that such an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5, 1979, In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. A copy of this opinion will be forwarded to the Committee on Professional Conduct.


author: Jack Holt, Jr., Chief Justice.

text:
    Ann FOREHAND, Guardian of the Estate of Huey Forehand v. FIRST BANK of Arkansas
    92-1191
    867 S.W.2d 431
    Supreme Court of Arkansas
    Opinion delivered December 13, 1993

      Robert S. Irwin, for appellant.

      Peel, Dunham & Hall, P.A., by: James Dunham, for appellee.
   Jack Holt, Jr., Chief Justice.

The issue in this case is whether the trial court erred in granting the motion to dismiss made by the appellee, First Bank of Arkansas. We hold that dismissal was improper and remand for trial.

Ms. Ann Forehand, the appellant, is the court-appointed guardian of the estate of her son, Mr. Huey Forehand. Included in Mr. Forehand’s estate was a deposit account at First Bank of Arkansas (“FBA”), located in Dover. American Collection Service, assignee of Jackson County Memorial Hospital, filed its Oklahoma judgment against Mr. Forehand in the Pope County Circuit Court. The circuit court issued a writ of garnishment on FBA, which responded stating that, although it held Mr. Forehand’s account, the funds could only be removed by order of the probate court. Even so, the circuit court issued its order directing FBA to pay the garnishment. Ms. Forehand filed a motion to set aside the order, which was denied.

Thereafter, she appealed to this court, arguing that the circuit court’s ordering of FBA to pay the ward’s money was erroneous, and we agreed. Forehand v. American Collection Serv. Inc., 307 Ark. 342, 819 S.W.2d 282 (1991). According to counsel’s briefs, FBA honored the garnishment by making payment prior to our decision. Now, Ms. Forehand has sued FBA for breach of fiduciary duty, claiming that it wrongfully paid out the money, some $9,466.64, and asking for damages in this amount. FBA filed a motion to dismiss pursuant to Ark. R. Civ.'P. 12(b)(6), explaining that Ms. Forehand failed to state facts upon which relief could be granted. Without explanation in its order, the Pope County Circuit Court granted FBA’s motion to dismiss and dismissed Ms. Forehand’s complaint with prejudice.

In reviewing a trial court’s decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in a light most favorable to the plaintiff. It is improper for the trial judge to look beyond the complaint to decide a motion to dismiss. Deitsch v. Tillery, 309 Ark. 401, 833 S.W.2d 760 (1992); University Hosp. v. Undernehr, 307 Ark. 445, 821 S.W.2d 27 (1991); Mid-South Beverages, Inc. v. Forrest City Grocery, Co., 300 Ark. 204, 778 S.W.2d 218 (1989). All reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be reasonably construed. Hollingsworth v. First Nat’l Bank & Trust Co., 311 Ark. 637, 846 S.W.2d 176 (1993).

In her complaint against FBA, Ms. Forehand states that she was appointed guardian of her son’s estate, and that, as a safeguard for these funds, the Pope County Probate Court ordered that no funds be withdrawn from Mr. Forehand’s bank account without prior order of the Probate Court. Ms. Forehand further alleges, that, although FBA required orders of the Probate Court for each withdrawal, Mr. Forehand’s creditor, American Collection Service, obtained an out-of-state judgment against him and filed it in the Pope County Circuit Court for collection, and the circuit court ordered FBA to pay the garnishment, which it did. Ms. Forehand alleges that FBA made the withdrawal “without authority, and without even determining from it’s [sic] legal counsel whether or not such withdrawal was possible and without determining its liability to Forehand, and without giving Huey P. Forehand any notice of what it intended to do.” She then alludes to her prior appeal in which we held that the circuit court lacked the authority to order the bank to pay the funds. See Forehand, 307 Ark. at 345, 819 S.W.2d at 284.

Assuming that all of the facts stated in her complaint are true, as we must do for purposes of determining whether or not the trial court committed error in dismissing the appellant’s complaint, we hold that it does state a cause of action against FBA. Since we held in Forehand, supra, that the Pope County Circuit Court erred in ordering FBA to pay appellant’s guardianship account funds to appellant-ward’s creditor, it necessarily follows that a question remains as to FBA’s duty to pay funds from appellant’s account when FBA was confronted with two conflicting court orders and whether or not a breach of duty or an act of conversion occurred when FBA chose to follow the circuit court’s order to pay funds from appellant’s account to American Collection.

For this reason, we hold that the dismissal of this action was inappropriate and remand to the trial court for proceedings consistent with this opinion.

       Conversion is any distinct act of dominion wrongfully exerted over property in denial of, or inconsistent with, the owner’s right. The conversion need not be a manual taking or for the defendant’s use; if the defendant exercises control over the goods in exclusion, or defiance, of the plaintiff’s right, it is a conversion whether it is for his own use or another’s use. Reed v. Hamilton, 315 Ark. 56, 864 S.W.2d 845 (1993); Elliott v. Hurst, 307 Ark. 134, 817 S.W.2d 887 (1991).


author: Robert H. Dudley, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. CORDES MOTORS, INC., Ralph Crumpacker, Mortgagee and Mozelle Crumpacker, Mortgagee, Barnhill of Springdale, Inc., and First State Bank, Mortgagee, Elby Short and Hazel Short, His Wife
    93-559
    867 S.W.2d 178
    Supreme Court of Arkansas
    Opinion delivered December 13, 1993

      Robert L. Wilson, Chief Counsel; Maria L. Schenetzke; and Treeca J. Dyer, for appellant.

      Lisle Law Firm, P.C., by: Joe B. Reed, for appellee.
   Robert H. Dudley, Justice.

On December 12, 1988, the Arkansas State Highway Commission filed three separate complaints and declarations of taking in order to widen Highway 68 in Springdale from four to five lanes. The State sought to take the fee title to the land necessary for the enlargement from appellees, Cordes Motors, Inc. and its mortgagee; Barnhill of Springdale, Inc. and its mortgagee; and Elby and Hazel Short. The State pleaded that it already had a right of way that extended forty feet from the center line of the highway and should be required to pay damages only for the land taken that was more than forty feet from the centerline. The three property owners answered and asserted that the State’s right of way extended only eleven feet from the centerline, and they should be compensated for any land taken that was further than eleven feet from the center line. The three cases were consolidated for a bifurcated trial. In the first phase the trial judge found that the State had a right of way that extended fifteen feet from the centerline, and the State must compensate the landowners for all land taken that was more than fifteen feet from the centerline. In the second phase the jury assessed the damages for the land taken that was more than fifteen feet from the centerline. We reverse and remand.

Before addressing the merits of this case, an overview of the history of county roads, the applicable statutes, and the case law is warranted. Many of the early county roads were acquired by prescriptive right, and some were acquired by donation without the donation instrument being recorded. Consequently, record title to county roads has often been lacking.

Section 14-298-121 of the Arkansas Code Annotated of 1987, which originated almost a century ago as Act 200 of 1899, granted the power to county courts to condemn highway rights of way. With this power, record title to roads could be obtained. However, the 1899 Act was criticized and challenged early on because it was ostensibly defective, in that it made no provision for the giving of notice to the landowner whose property was being taken. See Arkansas State Highway Comm’n v. Cook, 233 Ark. 534, 345 S.W.2d 632 (1961); Sloan v. Lawrence County, 134 Ark. 121, 203 S.W. 260 (1918). Notice is essential because the landowner is entitled to a hearing upon the issue of compensation. This court saved the Act from invalidity by holding that the actual entry upon the land supplies the required notice to the landowner. See Sloan, 134 Ark. at 131-32, 203 S.W. at 263. In State Highway Commission v. Holden, we said the taking was not complete until the notice by entry was given. 217 Ark. 466, 464, S.W.2d 113, 115-116 (1950). In Sloan, we held that the landowner was given notice when there was a physical entry pursuant to the county court order of taking, and the statute of limitations begins to run only after such notice. 134 Ark. at 131-63, 203 S.W. at 262-32. After Sloan, we set about the task of determining the specific facts that would constitute notice. See Cook, supra, 233 Ark. at 536, 203 S.W.2d at 633.

The burden is on the condemnor to prove notice. Arkansas Highway Comm’n v. Anderson, 231 Ark. 857, 376. S.W.2d 662 (1964). However, proof that notice was given to an owner will constitute notice to all subsequent owners. Arkansas State Highway Comm’n v. Jerry, 241 Ark. 591, 408 S.W.2d 864 (1966). We have said that notice can be established by:

Entry on the land under the authority of the order, or by the landowner filing a claim for right of way included in the order, or by any act tantamount to a showing that the landowner knew of [a county court order condemning the land] or had notice of facts, which, if reasonably pursued, would have resulted in such notice.

Jerry, 241 Ark. at 594, 408 S.W.2d at 865. Regardless of the expansive language of the last phrase quoted above, we refused to find notice in that very case even though the State dug a borrow pit in an adjoining tract because we determined that “this would not lead a prudent person to suspect that the right of way was widened in the tract involved.” Id. at 595, 408 S.W.2d at 866. Similarly, in State Highway Commission v. Dobbs, 232 Ark. 541, 340 S.W.2d 283 (1960), we said, as explained in Jerry, notice by widening a road at one place does not constitute a notice of taking on the same road at another place.

A more accurate summary of our case law is to say that the holdings of all our cases are in harmony and require a showing of either a prior filing of a claim for compensation, or an actual entry on the land that constitutes a substantial invasion; an entry that is physical and visible and would alert an ordinary person to the fact that the government is exercising dominion over the property. See Arkansas State Highway Comm’n v. French, 246 Ark. 665, 439 S.W.2d 276 (1969); Arkansas State Highway Comm’n v. Montgomery, 237 Ark. 857, 376 S.W.2d 662 (1964); State Highway Comm’n v. Holden, 217 Ark. 466, 231 S.W.2d 113 (1950). For example, we held there was notice when the proof showed that the State had moved a utility pole, moved ditches and tiles, and expanded the actual paved area of the road, Montgomery, 237 Ark. at 860-61, 376 S.W.2d at 664-65, and when the State constructed a road on a part of the easement, Cook, 233 Ark. at 537, 345 S.W.2d at 634, but we held there was no notice of an expanded right of way when the original road was built before the county court order was entered. Arkansas Highway Dept. v. Cook, 236 Ark. 251, 254, 365 S.W.2d 463, 464 (1963).

In 1963, the General Assembly passed Act 185 (codified at Ark. Code Ann. § 14-298-122 (1987)), for the purpose of “establish[ing] a rule defining what actions have supplied the requisite notice.” The act codified our holdings into legislation. In 1965, the General Assembly provided that, prospectively, service of process must be had by a condemnor. See Ark. Code Ann. § 14-298-120(f)-(g) (1987). While the 1965 act solves the notice problems for land condemned after that date, the old procedure still haunts us for land taken before that time. See Robert R. Wright, Recent Developments in Eminent Domain in Arkansas, 19 Ark. L. Rev. 121, 136 (1965-66).

The facts of the case at bar are straightforward. Prior to 1946, there was a dirt road that crossed meadows, orchards, vineyards, and gardens and was then known as the SpringdaleEast road. Record title to the right of way is not shown to have been in Washington County. On January 31, 1946, the County Court of Washington County entered an order condemning a right of way that extended forty feet from the centerline of the road. There is no proof of service of notice of the order of condemnation that would commence the statute of limitation on claims for damages. In reality, the landowners may well have received a benefit, rather than suffered a damage, by the taking and paving of the dirt road and, as a result, may have chosen not to file suit. See Arkansas State Highway Comm’n v. Dobbs, 232 Ark. 541, 544, 340 S.W.2d 283 (1960). There was also testimony indicating that the landowners might have donated the right of way in order to get a paved road, and the donation instrument was simply not recorded, but the fact remains that the Commission did not prove service of notice. In December 1946, the road was taken into the state highway system as Highway 68, and in 1947, State Highway Commission construction job number 9219 was commenced on the road. The Commission has retained its plans for the project and introduced them into evidence at the trial. The plans and the testimony of Ron Johnston, a Commission employee, show that the ditching, culverts, and fencing near the dirt road were to be moved out to correspond with the forty-foot right of way line described in the county court order. By themselves, the plans do not prove that the work was done. However, subsequent surveys do show that the ditching, culverts, and fencing were moved to correspond with the forty-foot right of way line.

In Montgomery, supra, a case remarkably similar to the one at bar, the Highway Commission’s plans showed that ditches and culverts were to be moved from the disputed area. Witnesses testified that the ditches and culverts were in fact moved from the area and a utility pole was moved onto it. We held that proof of such physical and visible action was sufficient to put the landowner on notice that the condemnation proceeding was completed and the statute of limitations had started to run. Montgomery, 237 Ark. at 861, 376 S.W.2d at 665.

This case is governed by Montgomery. The landowners argue that the Commission’s proof is inadequate to come within the cited case because the Commission’s witness “could not tell for sure from the construction plan whether the fences were moved or not.” The argument fails for two reasons. First, the landowners in their brief admit that “the only testimony concerning what took place at the time of the original construction plan in the present case was that ditching and culverts were moved. . . .” However, the moving of the fences and ditches to the right of way line, standing alone, is sufficient notice under Montgomery. Second, while it is true that the witness Ron Johnston could not tell from the Commission’s plan whether the fences were moved, he testified, from examining later completed surveys, that the fences were in fact moved out to the edge of the forty-foot right of way line. Under our holding in the Montgomery case, the trial court erred in ruling that moving the ditching, culverts, and fencing out to the edge of the forty-foot right of way line did not constitute notice.

Even if the ditches, culverts, and fencing had not been moved in 1947, there was another visible and physical entry in the late 1970’s or early 1980’s that, as a matter of law, was sufficient to give notice. At that time the Commission increased the width of the original road from eleven feet to fifteen feet. The trial court found that the result of this four-foot enlargement of the paved road was to give notice that the Commission claimed this four feet. That ruling was in error. The physical and visible entry gave notice that the Commission was claiming the land described in the condemnation order, and not just to the extent actually occupied. If the trial court’s ruling were correct, the validity of the public easement would rest on the uncertainties of oral testimony, rather than upon the metes and bounds descriptions set out in the order of condemnation. Cook, 233 Ark. at 537, 345 S.W.2d at 634. In addition, our holding is corroborated by other facts. In 1984 or 1985, the Commission placed “No Parking” signs some twenty-one feet from the centerline of the roadway. Again, such was a physical and active entry that was clearly visible to the landowners, but we need not decide if that fact was sufficient for notice. Also, private surveys that were completed for the landowners over a period of years reflected a forty-foot right of way, and surveyors’ iron pins were in place marking the right of way line at. forty feet from the centerline, and the landowners’ deeds excepted the highway right of way. Finally, an official of the Commission sent one of the landowners a letter asking him to remove a sign that encroached on the right of way. In sum, the landowners clearly had physical and visual notice that their property was taken, and they did not seek damages within the period of limitation.

Reversed and remanded for further proceedings consistent with this opinion.


author: Steele Hays, Justice.

text:
    Robert D. BUSSEY v. STATE of Arkansas
    CR 93-743
    867 S.W.2d 433
    Supreme Court of Arkansas
    Opinion delivered December 13, 1993

      John Lloyd Johnson, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant Robert Bussey was stopped by Deputy Marshal Michael Watson for speeding and driving while intoxicated, first offense. Bussey was found guilty in municipal court on both charges. He was fined $419.00, ordered to pay court costs of $225.00, and his driver’s license was suspended for 90 days.

Robert Bussey appealed to circuit court. A jury trial was held and Officer Watson testified that Bussey was speeding and that he detected the odor of alcohol while questioning Bussey. Watson administered field sobriety tests which Bussey failed to perform satisfactorily. Marshal Dwight Earnest testified that Bussey registered .205 on a breathalyzer test administered on a BAC Data-master Machine. The jury found Bussey guilty of driving while intoxicated and imposed a fine of $500.00 and court costs, the suspension of his driver’s license for 120 days, and twenty-four hours in the Pope County Detention Center.

On appeal two points of error are assigned: appellant’s statutory right to cross-examine the person calibrating the BAC Data-master was unlawfully denied and the trial court erred by not allowing the pleadings from municipal court to be used when trying a case on appeal, de novo, in the circuit court.

I

Appellant contends he was denied the right to cross-examine in circuit court the person who calibrated the machine used to administer the breathalyzer test. Ark. Code Ann. § 5-65-206(d)(2) (1987) provides that’a defendant charged with DWI has the right to cross-examine the person calibrating the machine, the operator of the machine, or any person performing work in the blood alcohol program of the Arkansas Department of Health if notice of intention to cross-examine is given ten (10) days prior to the date of hearing or trial.

Prior to the municipal court trial, the appellant filed a motion for discovery which recited that he wished to cross-examine the person calibrating the instrument employed for testing of blood-alcohol and the operator thereof.

The record reflects that the person who calibrated the machine, Danny Sorey, was not cross-examined at the municipal court trial. At the trial in circuit court the appellant moved at a pretrial hearing that the results of the breathalyzer test should be suppressed because the state did not have Sorey available for cross-examination. The circuit court denied the motion, ruling that the notice contemplated by § 5-65-206(d)(2) must be renewed in the circuit court. Further, the circuit court noted'that only the notice of appeal and designation of record come from the municipal court, and the only record in circuit court consists of the municipal court transcript. The circuit judge denied a motion to dismiss for lack of a charging instrument being introduced in the trial in circuit court.

Appellant contends the state was required to make the person who calibrated the machine available for cross-examination at the trial in circuit court pursuant to the notice given in the municipal court. We disagree and hold that the language of § 5-65-206(d)(2) requires that a new notice be given following an appeal and without such notice being filed the state was under no duty to produce the witness.

Appellant argues the pleadings used in preparation for trial in the municipal court are to be used in the circuit court; therefore, the notice for cross-examination filed prior to the trial in municipal court satisfies the notice requirement for the trial in circuit court. As part of his appeal from municipal court, appellant requested that the entire municipal court record be made a part of the record in circuit court. The notice of appeal designated the entire record and all proceedings, exhibits, evidence and testimony. Further, appellant submits that to be tried de novo means that the same evidence and access to witnesses in the municipal court are to be available in the circuit court pursuant to the pleadings. Appellant contends his interpretation of the law is supported by Ark. Code Ann. § 16-96-506 (1987), which states:

All appeals to the circuit court in criminal cases shall stand for trial at any time after the transcript and papers are, or should have been, filed in the circuit court as provided in this subchapter.

Appellant reads § 16-96-506 as dictating that as soon as the municipal court transcript is filed, including the pleadings, the parties shall stand ready for trial. He contends the statute implies there is no need to refile pleadings.

Appeals from a municipal court to circuit court are tried de novo. Stephens v. State, 295 Ark. 541, 750 S.W.2d 52 (1988). Appeals to circuit court are governed by Ark. Code Ann. § 16-96-507 (1987), which provides:

Upon the appeal, the case shall be tried anew as if no judgment had been rendered, and the judgment shall be considered as affirmed if a judgment for any amount is rendered against the defendant, and thereupon he shall be adjudged to pay costs of the appeal.

Further, we have interpreted “trial de novo” to mean “as though there had been no trial in the lower court.” Harrell v. City of Conway, 296 Ark. 247, 753 S.W.2d 542 (1988).

In addition, appellate jurisdiction of circuit courts with respect to appeals from municipal courts is governed by Ark. Code Ann. § 16-19-1105 (1987). Johnson v. State, 312 Ark. 38, 846 S.W.2d 662 (1993). Although § 16-19-1105 addresses appeals from the decisions of justices of the peace, the statute applies to municipal court misdemeanor convictions. Johnson, supra; Casoli v. State, 297 Ark. 491, 763 S.W.2d 650 (1989). The statute provides in part:

(a) Upon the return of the justice of the peace being filed in the clerk’s office, the court shall be in possession of the cause and shall proceed to hear, try, and determine the cause anew on its merits, without any regard to any error, defect, or other imperfection in the proceedings of the justice of the peace.
(b) The same cause of action, and no other, that was tried before the justice of the peace shall be tried in the circuit court upon the appeal. . . .

Ark. Code Ann. § 16-19-1105 (1987).

The purpose of the trial de novo is to conduct a trial as though there had been no trial in the lower court. Although litigants are free to utilize the same defense in circuit court asserted in the municipal court, they are not required to raise that same defense. Sec Stephens, supra. Nor is the trial in the circuit court to be influenced or affected by what occurred in the municipal court. Id.

The trial court construed the provisions of the statute regarding appeals to circuit court as requiring that the case stand for trial in the circuit court on the same footing as though the case had originated in the circuit court. Johnston v. City of Pine Bluff, 258 Ark. 346, 525 S.W.2d 76 (1975). Our statutes and cases indicate that a case appealed to the circuit court is to be tried as though there had been no trial in the lower court. Based on that analysis, the trial in circuit court should be treated as an entirely new trial and the circuit court correctly concluded the notice prior to the trial in municipal court was not applicable to a later trial de novo in circuit court. Were the rule otherwise, we can foresee considerable confusion and inefficiency. In this case, for example, the state would be required to produce the person who calibrated a breathalyzer for trial in circuit court, with the attendant scheduling problems, and loss of work time, when the defendant had no intention of cross-examining that individual in circuit court. That exercise in wasted motion is easily avoided by the simple expediency of requiring further notice if the defendant does, in fact, wish to pursue that course.

II

Appellant argues that if the pleadings from municipal court are not self-perpetuating on appeal to circuit court, the case must be reversed because the charging instruments (citations) were not introduced by the state at the trial in circuit court. No authority is cited for this contention. See Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). However, it was the appellant who availed himself of circuit court jurisdiction and the transcript from municipal court, filed by the appellant, reflects that he was charged and convicted of the offenses of speeding and DWI, first offense, in the municipal court.

Finding no error, we affirm the judgment.


text:
    Russell HILL v. STATE of Arkansas
    CR 93-851
    868 S.W.2d 44
    Supreme Court of Arkansas
    Opinion delivered December 13, 1993

      Jo Ellen Carson, for appellant.

      Winston Bryant, Att’y Gen., by: Cathy Derden, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This case involves a DWI committed on private property. Appellant argues that driving while intoxicated is not a criminal offense when it occurs on private property and evidence of inebriation should have been suppressed because of irregularities involving his arrest. Appellant also submits the evidence was insufficient to support the verdict. We find no merit in these points.

On July 23, 1992, Russell Hill, appellant, was a customer at a private club in Fort Smith. When the club closed about 5:00 a.m., appellant walked to his truck on the club’s parking lot. According to witnesses, appellant backed into another car, causing damage. When it appeared appellant was about to drive away two employees detained him and called the police. A policeman arrived and arrested appellant for DWI.

Appellant was tried and found guilty of DWI, first offense. He was sentenced to thirty days in jail, ninety days suspended license, and ordered to pay a fine of $500.00. Appellant brings this appeal from that judgment arguing three points for reversal.

I

Appellant argues that the offense of DWI cannot be committed on the parking lot of a private club. We can dispense with this argument by reference to our holdings in Sanders v. State, 312 Ark. 11, 846 S.W.2d 651 (1993) and Fitch v. State, 313 Ark. 122, 853 S.W.2d 874 (1993), that a DWI offense can be committed on private property, and there are no circumstances which would distinguish this case from Sanders or Fitch. Therefore, we find no merit in appellant’s contention.

We believe some confusion exists under earlier cases: Sanders v. State, supra, Robinson v. Sutterfield, 302 Ark. 7, 786 S.W.2d 572 (1990) and Hartson v. City of Pine Bluff, 270 Ark. App. 748, 606 S.W.2d 149 (1980), and we take this opportunity to explain, as appellant has challenged aspects of all three.

The difficulty concerning DWI offenses in these cases has been the relationship between Title 27 and our DWI Omnibus Act. Title 27 of Arkansas Code Annotated deals generally with transportation and is a compilation of a number of acts regulating transportation, including air and water traffic, as well as motor vehicle traffic. Originally DWI offenses were covered by Title 27, but in 1983 the General Assembly passed the DWI Omnibus Act (No. 549), and § 18 of that act repealed the DWI provisions in Title 27. The Omnibus act was obviously intended to be a comprehensive act dealing with all aspects of DWI offenses.

The confusion has been generated primarily by two statutes under Title 27. The first is Ark. Code Ann. § 27-49-102(1) (1987), cited in Hartson, supra, for the premise that failing to yield the right of way, in order to constitute a traffic offense, must necessarily occur on a highway. From that holding in Hartson, the argument has been made that all traffic offenses must be committed on a highway and, therefore, DWI cannot be a traffic offense if it occurred on private property. That is not a correct interpretation of Hartson or the statute involved.

What was not discussed in Hartson was the second section of the statute, Ark. Code Ann. § 27-49-102(2) (1987), which expressly provided that certain traffic offenses were exempted from the “highway requirement” of the preceding section, and could be committed “upon highways and elsewhere throughout the state.” This statute in its entirety was part of a comprehensive motor vehicle act of 1937, No. 300, at § 20. Also included as part of the Act was the offense of DWI at § 49. As the Act was written, that DWI offense was one of the offenses expressly exempted from the “highway requirement” which is now § 27-49-102(1). Therefore, under the 1937 legislation, a DWI offense was not limited to being committed on a highway under § 27-49-102(1), but could be committed “on highways and elsewhere throughout the state” under § 27-49-102(2).

While § 49 was repealed by § 18 of the DWI act, and DWI offenses are no longer controlled by Title 27, it is evident from the history of § 27-49-102(2), that the legislature intended that the offense of DWI not be restricted to the highways of this state. That intention is also reflected in the language of the DWI Act. See Sanders, supra. We have no doubt but the legislature has consistently intended that DWI constitutes a criminal offense whether it occurs on highways or on private property.

The second statute under Title 27 that has caused some confusion is Ark. Code Ann. § 27-50-302 (1987), which is a list of traffic violations and the grades of those offenses. As that statute now reads, DWI is not among the offenses listed and some have argued that we should not treat DWI as a traffic offense. Robinson v. Sutterfield, supra. In Robinson we stated there was no indication this list of traffic offenses was ever intended to be exclusive, and common sense suggested otherwise. While that response was sufficient to address the argument, we might well have discussed the history of the statute. When § 27-50-302 was enacted in 1977, DWI was among the offenses listed. It remained there until 1983 when the DWI Omnibus Act was passed and that act became the comprehensive legislation for DWI offenses. That part of § 27-50-302 listing DWI and its grade was specifically repealed by the DWI Act. Section 18 of Act 549, supra. We conclude, therefore, that the legislature has always considered DWI to be a traffic offense and only removed it from the list of traffic offenses under § 27-50-302, when DWI became the focus of an entire act within itself.

In sum, Title 27 originally included and governed DWI , offenses, but the DWI provisions under that Title were repealed i with the enactment of our Omnibus DWI Act. Title 27 has not governed DWI offenses since 1983 and DWI provisions are no longer found within that Title. As noted, however, our former statutes are helpful in evincing legislative intent. We believe those , provisions were meant to be broadly construed. J.L. McEntire & Sons v. Hart Cotton Co., 256 Ark. 937, 511 S.W.2d 179 (1974); Mears v. Arkansas State Hosp., 265 Ark. 844, 581 S.W.2d 339 (1979). Our holdings in Sanders, supra and Fitch, supra, are consistent with that perceived intention.

II

Second, appellant argues the trial court erred in convicting him of driving while intoxicated based on testimony by private citizens, two club employees, who initially detained him. He relies on our holding in Perry v. State, 303 Ark. 100, 794 S.W.2d 141 (1990).

In Perry, the arrest occurred just beyond a patrolling policeman’s jurisdiction. The officer found appellant drunk, sitting behind the wheel of a parked car. The officer knew he was outside his jurisdiction so he radioed a local policeman and detained appellant until that officer arrived and made the arrest. This court held detention of the appellant by the first officer amounted to an arrest and that he had no greater authority to arrest than any other private citizen. The Perry court concluded that the unlawful detention amounted to a Fourth Amendment violation and evidence obtained as a result of that detention was subject to the exclusionary rule.

Appellant would apply the rationale of Perry to this case, putting the employees of the club in the position of the first arresting officer in Perry, i.e., that they had no power to arrest and, therefore, any evidence obtained through them should be suppressed. The fallacy of the argument lies in the fact that the evidence was suppressed in Perry, not because an arrest was effected by a private citizen but, rather, because it was effected by an official of the state.

The search and seizure clauses are restraints upon the government and its agents, not upon private individuals. The general corollary to this proposition is that the exclusionary rule is not intended as a restraint upon the acts of private individuals. (Cites omitted).

Houston v. State, 299 Ark. 7, 771 S.W.2d 16 (1989).

Therefore, even if appellant’s detention by private citizens was improper, such action would not implicate the Fourth Amendment. Only when some form of state action is involved can the Fourth Amendment and the exclusionary rule be invoked. Houston v. State, supra.

Ill

As his final point, appellant argues the trial court erred in finding sufficient evidence that appellant was in actual physical control of his vehicle.The primary witnesses to appellant’s DWI offense were the two employees of the private club. One of them, Doug Spicer, had seen appellant in the club and thereafter on the parking lot, heading for his truck. He testified that appellant got into the truck and backed into a car parked nearby. He also testified appellant was intoxicated. The other employee, Don Middleton, testified he was in the parking lot at the time of the accident and saw appellant’s truck back into the car. He immediately went over to the car and testified that appellant was sitting in the driver’s seat- that “there was no question” but that appellant was driving.

The officer called to the scene testified appellant had a strong odor of intoxicants about him and could not perform field sobriety tests. Appellant was tested on a breathalyzer at the police station and registered .24. Appellant’s argument goes to the credibility of the witnesses which was for the jury to decide. Gilbert v. State, 308 Ark. 565, 826 S.W.2d 240 (1992). Under the evidence that was admitted, there was sufficient evidence to support the verdict.

Affirmed.

       Ark. Code Ann. §§ 5-65-101 through 5-65-207 (1987).


author: David Newbern, Justice.

text:
    DILLARD DEPARTMENT STORES, INC. and Peggy Hallmark v. Mary ADAMS and Wayne Adams
    93-583
    867 S.W.2d 442
    Supreme Court of Arkansas
    Opinion delivered December 13, 1993
    [Rehearing denied January 18, 1994]

      Penix, Penix and Lusby, by: Bill Penix and Robin Nix, for appellants.

      Mike Bearden, for appellees.-
   David Newbern, Justice.

Dillard Department Stores (Dillards) and Peggy Hallmark appeal from a judgment in favor of Mary Adams and her husband, Wayne Adams, the appellees. The Adamses sued Dillards and Ms. Hallmark for outrage and malicious prosecution. Dillards and Ms. Hallmark contend the Trial Court erred by allowing the jury to decide whether the tort of outrage had been committed because the evidence was insufficient to substantiate the claim. They also contend there was insufficient evidence for the jury to award punitive damages or, in the alternative, the punitive damages awarded were excessive. We find merit in the appellants’ first argument and reverse and remand the case. We need not address the appellants’ other contentions.

Mary Adams was shopping for a bathing suit at Dillards in Jonesboro. She tried on several suits in one of the store’s dressing rooms. Peggy Hallmark, a sales manager with Dillards said that, through the vents in the dressing room door, she observed Ms. Adams switch the price tags on two bathing suits. Except for minor differences in testimony by Ms. Hallmark and Ms. Adams there is no dispute as to the remainder of the relevant events.

Ms. Adams left the dressing room with a bathing suit and continued shopping in the store. Ms. Hallmark continued observing Ms. Adams until Ms. Adams purchased the bathing suit with her Dillard’s credit card. As Ms. Adams was leaving the store, Ms. Hallmark and a security guard stopped her. Identifying herself as “Dillards security,” Ms. Hallmark asked Ms. Adams if she would accompany them to the rear of the store.

In a manager’s office, Ms. Hallmark confronted Ms. Adams about switching the price tag to obtain the bathing suit she had purchased at a price lower than that originally marked on that suit. Ms. Adams denied any wrongdoing. The store manager and the Jonesboro Police were called. The store manager questioned Ms. Adams and then took her picture and told her she was banned from the store. The police arrived and issued a citation to Ms. Adams who was then escorted from the store. The entire incident lasted from twenty minutes to an hour.

After the incident Ms. Adams suffered from depression. Her husband became so concerned he quit his job as a truck driver as he felt the need to stay at home due to his wife’s condition. Ms. Adams saw a psychologist and a psychiatrist. Both diagnosed her as being depressed. Medication was prescribed for her, and her condition stabilized somewhat.

A theft charge against Ms. Adams was dismissed by the Jonesboro Municipal Court.

The Adamses sought punitive and compensatory damages, including damages for loss of consortium for Mr. Adams. Dillards and Ms. Hallmark moved for a directed verdict at the end of the Adamses’ evidence and objected to the jury being instructed on the tort of outrage at the close of the evidence. They were overruled. The jury, after being instructed on the torts of outrage and malicious prosecution, returned a general verdict in favor of Ms. Adams for $3,500 in compensatory damages and $100,000 in punitive damages and awarded Mr. Adams nothing.

Outrage

The question we must answer is whether Ms. Adams presented sufficient evidence to send the case to the jury to decide whether Dillards and Ms. Hallmark committed the tort of outrage.

Outrage, or intentional infliction of emotional distress, was first recognized by this Court, in its current form, in M.B.M. Co. v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980). We stated “one who by extreme and outrageous conduct wilfully and wantonly causes severe emotional distress to another is subject to liability for such emotional distress and for bodily harm resulting from the distress.” We said, “[b]y extreme and outrageous conduct, we mean conduct that is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” We were quoting Restatement (Second) of Torts § 46, cmt. d (1977).

In subsequent decisions, we have addressed outrage in a cautious manner. Óur recognition of this tort is not intended to “open the doors of the courts to every slight insult or indignity one must endure in life.” Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988); Hess v. Treece, 286 Ark. 434, 693 S.W.2d 72 (1985); Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984).

We cannot say Ms. Adams presented sufficient evidence for a jury instruction on the tort of outrage. Ms. Adams testified the entire incident lasted less than an hour. During that time she was not physically touched, and while Dillards employees may have questioned her in a confrontational manner, there is no evidence that their tone was abusive or harassing. Ms. Adams testified that Ms. Hallmark initially confronted her in a professional manner and in such a way as not to draw the attention of any other customers.

We do not mean to say that Dillards’ employees’ actions were merely a “slight insult.” We recognize Ms. Adams may well have suffered mental distress as a result of them. She was accused of a crime of which she was not convicted. We cannot, however, find in the facts alleged or shown the kind of “extreme degree” of outrageous conduct “as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in civilized society.” Whatever the merits of the claim of Dillards and Ms. Hallmark as to Ms. Adams’s conduct (and we assume no merit in them for purposes of this appeal) nothing that was done constituted conduct fitting our definition of “outrage.”

Ms. Adams contends we should not reverse the jury’s verdict because it was a general verdict and the jury was properly instructed on the additional tort of malicious prosecution which could have been the basis of the awards made. That may be so, but we cannot know whether the general verdict was given wholly or in part for the tort of outrage which should not have been before the jury. In Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988), we were confronted with the same problem. The tort of outrage had gone to the jury without sufficient evidence in support of it. Other tortious conduct, in that case wrongful discharge, was also alleged, and a general verdict was returned. We said, “We cannot ascertain if [the jury] based its verdict... on the claim of outrage or wrongful discharge or both. Since the issue of outrage was improperly submitted to the jury, we cannot affirm the judgment of the trial court.” We have recently dealt with analogous cases in which a jury has been improperly instructed and the party complaining about the error has been unable conclusively to show prejudice. We have made it clear that when an erroneous instruction has been given and a jury has rendered a general verdict from which prejudice due to the error cannot be ascertained, we must reverse, Skinner v. R.J. Griffin, Inc., 313 Ark. 430, 855 S.W.2d 913 (1993), unless some additional factor makes it clear that the erroneous instruction was harmless. See Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993). We find nothing in this case which would make the instruction on outrage harmless.

Reversed and remanded.

Dudley and Brown, JJ., not participating.