text:
    Howard SHARP v. STATE of Arkansas
    650 S.W.2d 565
    Supreme Court of Arkansas
    Opinion delivered May 16, 1983

      Appellant, pro se.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant Howard Sharp was convicted of second degree murder on June 26, 1981 and sentenced to 20 years imprisonment. Judgment was entered on July 9, 1981, and a timely notice of appeal was filed.

Appellant was released on bond pending appeal but eventually committed to prison some eight months later when nothing more was done about the appeal. He has now filed a pro se motion for belated appeal, alleging that his retained counsel Jeptha Evans was ineffective in not pursuing the appeal.

Arkansas Rules of Criminal Procedure 36.9 provides that no motion for belated appeal shall be entertained unless application for belated appeal has been made within 18 months of the date of commitment. Although appellant was convicted in July, 1981, the commitment in his case was not entered until March 19, 1982, thus appellant’s motion for belated appeal is timely. It does not, however, show good cause for appellant’s failure to communicate with counsel and must, for that reason, be denied.

After the notice of appeal was filed, appellant moved to Louisiana and then Texas. According to Mr. Evans’ affidavit, he wrote to appellant on December 7, 1981, asking appellant to forward the money to have the transcript prepared. He informed appellant that he had obtained an order extending the time for lodging the record on appeal to February 5, 1982. He also enclosed an affidavit of indigency for appellant to complete if he could not afford the cost of the transcript. Appellant did not return the affidavit or otherwise respond. Mr. Evans also wrote several other letters to appellant and left messages by telephone with appellant’s sister-in-law and mother in attempts to contact him. Evans contends that on October 30, 1982, nearly nine months after the time for filing the record on appeal had elapsed, he received a letter from appellant. Appellant said that he had not received the affidavit because he “withdrew from everything” and left for Texas. He said he did not return until February, 1982. Evans states that he did not seek to be relieved as counsel because he intended to proceed with the appeal until it became evident that appellant could not be located by letter or telephone.

Appellant offers no explanation in his motion for his failure to contact his attorney while he was in Louisiana and Texas. He specifically states that he was aware of his right to appeal, but attributes his failure to communicate with Mr. Evans to Evans’ inability to reach him by telephone or mail. It is apparent that appellant felt no obligation to contact Evans until he was committed to prison in March, 1982.

We have consistently held that the failure of counsel to perfect an appeal in a criminal case where the defendant desires an appeal amounts to a denial of the defendant’s right to effective assistance of counsel. Gray v. State, 2, 77 Ark. 442, 642 S.W.2d 306 (1982). We recognize, however, that a convicted defendant may waive his right to appeal, Gray, supra, and in appellant’s case we find that he did so. See Munn v. State, 278 Ark. 283, 644 S.W.2d 945 (1982).

Counsel made several attempts to contact appellant to inform him of his right to have the record prepared at public expense. Appellant, however,. left the State and did not respond to Evans’ telephone calls or letters. There is no doubt that appellant expressed a desire to pursue an appeal once he was imprisoned, but this does not excuse his total failure to act before the.time for lodging the record on appeal had expired. See Munn, supra; Houston v. State, 263 Ark. 607, 566 S.W.2d 403 (1978).

Motion denied.


source: Caselaw Access Project

author: Richard B. Adkisson, Chief Justice.

license: Public Domain

text:
    Gene MULLENAX v. EDWARDS SHEET METAL WORKS, INC.
    82-290
    650 S.W.2d 582
    Supreme Court of Arkansas
    Opinion delivered May 23, 1983

      William C. McArthur, for appellant.

      Homer Tanner, for appellee.
   Richard B. Adkisson, Chief Justice.

Mid America Video Corporation was organized by appellant, Gene Mullenax, Hubert Smith, and another incorporator in March of 1980. Records from the Secretary of State’s office reflect that on November 24, 1980, Mid America’s corporate charter was revoked for nonpayment of franchise tax pursuant to Ark. Stat. Ann. § 84-1842 (Repl. 1980). The charter was reinstated on May 28, 1981.

Meanwhile, beginning in August, 1980, and continuing through the period of time Mid America was without a franchise, appellee, Edwards Sheet Metal Works, Inc., manufactured certain satellite antenna component parts for Mid America. This suit arose over nonpayment for these parts as reflected by invoices introduced at trial dated April 1, April 17, and May 15, 1981, in the amount of $21,655.52.

In January of 1982 appellee brought suit against appellant and Smith individually to recover the corporate debt. Relying on Moore v. Rommel, 233 Ark. 989, 350 S.W.2d 190 (1961) the Pulaski County Circuit Court, sitting without a jury, held that appellant and Smith were personally liable for the corporate debts. Smith did not appeal the trial court’s holding, but appellant did. On appeal we affirm.

Appellant first argues that although the Secretary of State’s records reflect that Mid America’s charter was not reinstated until May 28,1981, the delinquent franchise taxes were actually paid in December of 1980, and therefore he should not be personally liable for debts incurred after payment of the tax. However, appellant was unable to produce any documentary evidence at trial to substantiate this contention. Appellant relies upon the testimony of the corporation’s accountant who stated that in December of 1980 he instructed the corporation to mail the state a tax report he had prepared, along with an $ 11.00 check, and that an $11.00 check went through the corporation’s bank account. However, there was no evidence as to when the corporation actually mailed in the report and the check or when these items were received by the state, and there was no evidence of when the check cleared the corporation’s bank account. Therefore, we find no merit in appellant’s first argument.

Appellant next argues that he is not personally liable for the corporate debts of Mid America because there is insufficient evidence from which the trial court could have found that the debt was incurred during the period of time the charter was revoked. We disagree. There was undisputed evidence before the trial court by way of invoices and ledger sheets to the effect that the debts in question were incurred during the time the charter was revoked. Furthermore, argument of counsel before the trial court reveals that all parties accepted this undisputed evidence as dispositive of this issue.

Appellant also argues that the trial court erred in holding him personally liable for the corporate debts because he was not an officer or director of the corporation when they were incurred. However, we are unable to say that the trial court erred in this respect. The record reflects that appellant was president of the corporation and a director from its inception. Appellant testified that he resigned as president on December 31, 1980, but the trial court did not have to accept this testimony as undisputed since appellant is a party to the suit. Ball v. Hail, 196 Ark. 491, 118 S.W.2d 668 (1938). Appellant testified that “There was a document that Don Greenwell prepared, that I signed that said I resigned, and Hubert was president.” However, this document was never introduced at trial; there was also evidence that in March appellant was active in the corporation. Furthermore, although the trial court left the record open for additional proof on appellant’s status in the corporation, none was ever forthcoming. Under these circumstances we cannot say the trial court erred in holding appellant personally liable for the corporate debt.

Affirmed.


author: George Rose Smith, Justice.

text:
    Charles Earl JEFFERSON v. STATE of Arkansas
    CR 83-4
    650 S.W.2d 584
    Supreme Court of Arkansas
    Opinion delivered May 23, 1983

      William C. McArthur, for appellant.

      Steve Clark, Atty. Gen., by: LeslieM. Powell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, aged 25, was convicted of three offenses and sentenced to consecutive terms of 22 years for aggravated robbery and 23 years for attempted rape and to a concurrent term of 11 years for burglary. The appellant does not question the sufficiency of the State’s proof that on the evening of November 19,1981, a masked man, armed with a butcher knife, broke into the home of two elderly sisters and committed the crimes in question. The only argument for reversal is that the identity of the appellant as the intruder was not adequately established.

Viewing the testimony most favorably to the appellee, as we must, we find that the matter of identity was a question of fact for the jury. The two sisters had known Charles Jefferson for as long as ten or twelve years, because his grandmother had lived next door to them in North Little Rock for many years. One of them had seen him two or three days before the evening in question and testified that he was then wearing the same clothes he had on that evening. The other sister had seen him earlier that day. They both recognized him at once as the intruder, though he was wearing a mask or scarf over his face. One said she knew him by his voice, which she had heard frequently, the other by his movements and build. One of them called the police right after the departure of the intruder, who had stayed about 45 minutes. They testified that later that night they told the investigating officers that Charles Jefferson had been the robber. At the trial they were positive in their identification. There were minor uncertainties in the State’s proof, such as the exact time the masked man entered the house and whether the two women identified him by name that evening or the next morning. Such uncertainties, however, were matters of credibility to be determined by the jury, whose decision is conclusive. There is ample substantial evidence to support the verdict, which ends our inquiry on appeal.

Affirmed.


author: Frank Holt, Justice.

text:
    Melanie Robinson FULLER v. Steve Allen ROBINSON
    82-284
    650 S.W.2d 585
    Supreme Court of Arkansas
    Opinion delivered May 23, 1983
    [Rehearing denied June 13, 1983.]

      Sharp ir Morledge, P.A., by: Fletcher Lewis, for appellant.

      Kinney, Easley ir Kinney, for appellee.
   Frank Holt, Justice.

This is a custody dispute between the natural parents of Stephen Jeremy Robinson. This action was brought by Jeremy’s mother, the appellant. The only issue presented is whether venue is limited to the Cross County Court or whether the Woodruff County Court may determine custody.

The appellant and the appellee divorced in January 1974 after three years of marriage. Appellant was awarded custody of their infant daughter Stephanie. They began living together again in August 1974 without remarrying. Jeremy was born on May 20, 1975. It is undisputed that the appellee is the natural father. In May 1977 the appellant and the appellee separated. The appellant moved to Florida, taking Stephanie, of whom she had legal custody, and Jeremy with her. Both parties subsequently married other persons. In May 1981 Jeremy came to Arkansas for his usual summer visit in his father’s home in Cross County. At the end of the summer, Jeremy, then six years of age, was enrolled by his father in the first grade in the Wynne public schools. The father filed a petition for guardianship of Jeremy in the probate court of Cross County. On January 14, 1982, the probate court entered a temporary order awarding legal custody to the appellee, Jeremy’s acknowledged father, and enjoining the appellant from interfering with custody or removing Jeremy from Arkansas pending a hearing to be held on March 10, 1982. In violation of that order, the appellant removed Jeremy from Arkansas to Florida on February 4, 1982. Appellee went to Florida, where he regained physical custody of Jeremy, returned him to Arkansas, and placed him in school. The Cross County Probate court appointed the appellee, whom he found was Jeremy’s “acknowledged natural father,” as guardian of the person and estate of Jeremy, holding that the fact that Jeremy is illegitimate is irrelevant to a proceeding to appoint a guardian of his estate and person. The probate court also held that issues of custody, support and visitation should remain with the county court and that Jeremy was a resident of Cross County, Arkansas. There was no appeal from this order.

Appellee and her present husband moved to Woodruff County, Arkansas. Subsequently, on July 28, 1982, as a resident of this county, appellant filed this action there in county court for legal custody. The appellee moved to dismiss for lack of jurisdiction and venue. Appellee also filed an action in Cross County Court for Jeremy’s legal custody. The Woodruff County Court held that it had jurisdiction and venue and awarded custody to the appellant’s parents, the maternal grandparents of Jeremy. On appeal the circuit court reversed, holding that venue properly lies in Cross County and not in Woodruff Conty, and dismissed the action. Appeal is taken from that order. The only issue presented on appeal is whether venue lies in Woodruff County Court.

The circuit court of Woodruff County found that Jeremy resided in Cross County and that the probate court of that county had previously so found, there being no appeal from that decision. We cannot set aside this finding of fact by the circuit court unless it is clearly erroneous (clearly against the preponderance of the evidence). ARCP Rule 52 (a). On the record before us, this finding is not clearly erroneous.

The appellant argues that, even if Jeremy is a resident of Cross County, the county court of Woodruff County also had venue in this action. She argues venue in a custody case, as here, is transitory in nature and could be in the county of the residence of the illegitimate child, the county of the mother’s residence, or the county of the father’s residence. In support of her argument she cites as authority 10 C.J.S. Bastards § 57; Ark. Stat. Ann. § 34-702 (Repl. 1962); Ark. Stat. Ann. § 34-713 (Repl. 1962); Ark. Stat. Ann. § 34-716 (Supp. 1981). Although each of these authorities relates in some way to bastardy proceedings, none of them specifically fixes venue for actions to determine custody of illegitimate children.

A comparison of Ark. Stat. Ann. §§ 34-716 and 34-718 (Supp. 1981), enacted in the same legislative session, demonstrates that the legislature intended to limit venue in a suit for custody of an illegitimate child to the county wherein the child resides. Section 34-716 provides:

SUIT BY FATHER TO DETERMINE PATERNITY OF ILLEGITIMATE CHILD. — Any man alleging to be the father of an illegitimate child may petition the County Court wherein the mother resides or wherein the child resides for a determination of the paternity of the illegitimate child. The Court may determine the paternity of the child and may order the father to make periodic payments for support of the child. [Acts 1981, No. 664, § 1, p__]. (Italics supplied.)

In contrast, § 34-718 provides:

CUSTODY OF ILLEGITIMATE CHILD. — (a) A father, provided he has established paternity in a court of competent jurisdiction, or a mother of an illegitimate child, may petition the county court wherein the child resides for custody of the child____[Acts 1981, No. 665, § 1, p._]. (Italics supplied.)

The fact that the legislature provided for venue in two counties in § 34-716, which governs suits brought by a father to determine paternity, but only one county in § 34-718, which is the sole statute fixing venue in suits for custody of illegitimate children, demonstrates that § 34-718 was intended to limit venue in custody actions to the county wherein the child resides. Consequently, as the trial court held, Cross County, not Woodruff County, is the proper venue for an action to determine custody of Jeremy, whether brought by the father, provided he has established paternity, or the mother, as here.

Affirmed.


author: John I. Purtle, Justice.

text:
    Charles D. RAGLAND, Commissioner of Revenues, State of Arkansas v. QUALITY SCHOOL PLAN, INC.
    82-295
    651 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered May 23, 1983
    [Rehearing denied June 27, 1983.]

      Kelly S. Jennings, for appellant.

      Friday, Eldredgeir Clark, by: A. Wyckliff Nisbet, Jr., for appellee.
   John I. Purtle, Justice.

The Commissioner of Revenues for the State of Arkansas brings this appeal from a decree of the Pulaski County Chancery Court wherein it was held that appellee did not owe the assessment for use tax. The commissioner contends the trial court erred in finding the appellee, hereinafter referred to as QSP, was not a “vendor” and did not make a “sale” within the meaning of the Arkansas Compensating Use Tax Act. We agree with the commissioner.

The facts are undisputed. The appellee, QSP, represented about 100 publishers of magazines. Appellee’s agents went to various schools within the State of Arkansas and recruited students to sell magazines. There was always a sponsor who controlled the students and received the orders or subscriptions. Checks were made payable to the school and the school retained 40% of each order, forwarding the balance to a clearing house designated by appellee. All materials for soliciting and ordering were furnished by appellee. The audit period in question was July 1, 1975 through June 30, 1978. The amount collected for magazine subscriptions during the audit period was $733,415.10. A tax in the amount of $22,002.45 was assessed and a penalty of $2,981.69 was imposed against appellee. These sums were paid by appellee under protest. Suit for recovery was filed and on September 10,1982, the chancellor held that a refund was due because there had been no “sale” by appellee within the meaning of Ark. Stat. Ann. § 84-3104 (f) (Repl. 1980) nor was QSP a "vendor” as defined by Ark. Stat. Ann. § 84-3104 (d). The court also held that magazine subscriptions were “tangible personal property” as defined in Ark. Stat. Ann. § 84-3104 (k).

We first consider whether appellee was a “vendor” within the meaning of the act. The first consideration is the statute [Ark. Stat. Ann. § 84-3104 (d)] which reads:

The term “vendor” means and includes every person engaged in making sales of tangible personal property, by mail order, by advertising, by agent; or peddling tangible personal property, soliciting or taking orders for sales of same for storage, use or consumption in this State; and all salesmen, solicitors, hawkers, representatives, consignees, peddlers or canvassers as agents of the dealers, distributors, consignors, supervisors, principals or employers under whom they operate or from whom they obtain the tangible personal property sold by them. Irrespective of whether they are making sales on their own behalf or on behalf of such dealers, distributors, consignors, supervisors, principals or employers, they must be so regarded as vendors, and the dealers, distributors, consignors, supervisors, principals or employers must be regarded as vendors for purposes of this Act.

This definition is quite inclusive. A sale cannot be made in Arkansas without someone being the vendor. However, appellee strongly insists that the students made the sales and the publishers accepted the money for the various magazines thereby eliminating the appellee as the vendor. It insists that the parties (students in this case) selling the tangible personal property are vendors or in the alternative the publishers are the vendors. Appellee contends it occupies the position of advisor or perhaps independent contractor, but denies it is a vendor within the meaning of Ark. Stat. Ann. § 84-3104 (d).

We do not find that we have previously construed this portion of this particular statute in reference to the situation before us. However, the Alabama Court of Appeals issued an opinion which seems to be on all fours with the one before us. Quality School Plan, Inc. v. State of Alabama, 53 Ala. App. 418, cert. den. 293 Ala. 771 (1974). The Alabama Use Tax Act was very similar to the Arkansas law. We find the Alabama case to be persuasive. There it was found that the students selling subscriptions were salesmen or agents. In the present case it was agreed to by the parties and subsequently held by the court, that magazine subscriptions were items of tangible personal property. Someone was the vendor and we think that of all the candidates the appellee best fits the statutory description of a vendor.

Next we consider the matter of a “sale” within the terms of the Arkansas Compensating Use Tax Act. We agree with appellant and appellee that there have been sales of items of tangible personal property, i.e., magazine subscriptions. Since all agree that a sale within the meaning of the act has been made we must decide who made the sale. In order to have a better understanding of the problem it is necessary to cite Ark. Stat. Ann. § 84-3104 (f).

The term “sale” means any transfer, barter or change of the title or ownership of tangible personal property; or the right to use, store or consume the same, for a consideration paid or to be paid, in installments or otherwise, and includes any transaction whether called leases, rentals, bailments, loans, conditional sales, or otherwise, and notwithstanding that the title or possession of such property, or both, is retained for security. For the purpose of this Act the place of delivery of tangible personal property to the purchaser, user, storer or consumer shall be deemed to be the place of sale, whether such delivery be by the vendor or by common carriers, private contractors, mails, express, agents, salesmen, solicitors, hawkers, representatives, consignees, peddlers, canvassers, or otherwise.

It is obvious that the foregoing definition includes almost any transfer of ownership to tangible personal property. Again we refer to Quality School Plan, Inc. v. State of Alabama, supra. In the Alabama case as well as the case before us, QSP had two employees in the state who would go to various schools and encourage the sale of magazine subscriptions. QSP furnished all promotional literature, order forms and reporting forms. Whatever instructions were furnished to the schools came from QSP and its employees. The Alabama court stated: “Under these facts the conclusion is inescapable that QSP sold magazine subscriptions through student salesmen.” Considering the facts of the instant case we think our conclusion must be that the appellee, through its agents, made sales of tangible personal property within the State of Arkansas.

We agree with the finding of the chancellor that a magazine subscription is “tangible personal property” within the meaning of Ark. Stat. Ann. § 84-3104 (k). This appears to have been conceded by the appellee on the third page of its brief where it is stated: “It is unquestionable that an item of personal property (i.e., a magazine) has been sold within the meaning of the Act. The parties do not disagree on this point.” From the facts previously stated we are of the opnion that the chancellor was not erroneous in making this determination. A magazine is obviously tangible and the sale was made by the students when they collected the price of the subscription.

We agree with appellee that this court adheres to the principle that in applying a tax statute it must be construed most strongly against the taxing power. Gaddy v. DLM, Inc., 271 Ark. 311, 609 S.W.2d 6 (1980). When we are construing an exemption we construe it most strongly against the party seeking to come within the exemption. S. H. & J. Drilling Corp. v. Qualls, 268 Ark. 71, 593 S.W.2d 178 (1980).

We think the weight of the evidence in this case supports the conclusion that the appellee is the vendor and that a sale of tangible personal property was made each time a student sold a subscription to a magazine. Therefore, the case will be reversed and remanded with directions to hold for the commissioner in levying and collecting this tax.

Reversed and remanded.


text:
    Mr. & Mrs. Milton HALFORD v. SOUTHERN CAPITAL CORPORATION and Walter E. HUTCHINSON, III
    83-17
    650 S.W.2d 580
    Supreme Court of Arkansas
    Opinion delivered May 23, 1983

      Barron, Coleman ¿r Barket, P.A., by: Randy Coleman, for appellants.

      Mitchell, Williams, Selig, Jackson & Tucker, by: W. Christopher Barrier, for appellees.
   John I. Purtle, Justice.

The Pulaski County Chancery Court granted appellee a judgment against Mr. and Mrs. Milton Halford, appellants, in the total sum of $8,732.88. The judgment arose from a suit between these parties and others (not parties on appeal) involving debts of a defunct corporation whose note the parties had secured by a guaranty agreement. The chancellor included in the decree attorney’s fees and interest at the rate provided for in the note of 15 3/4% until judgment and at the same rate after judgment until paid. On appeal the appellants argue the trial court erred in awarding prejudgment and postjudgment interest and in awarding attorney’s fees to appellee.

Appellees and appellants, along with other parties not involved in this appeal, entered into an enterprise which eventually became insolvent. The corporation, Little Rock Auto Painters, Inc., owed many debts among which were debts owed to the parties to this action. In the beginning the corporation was formed for the purpose of painting automobiles. It was a corporation which had to borrow its initial capital and to do so the appellants and appellees, among others, guaranteed a note to a local bank. The place of business burned and the proceeds of the insurance policy were applied to the company’s outstanding note to the bank, which was eventually reduced to $17,436.06. Interest on the note was 15 3/4% per annum. The bank called upon appellees, the only obligors with assets assigped to guarantee the note, to pay off the balance of the note. The note to the bank was paid off by appellees on February 13, 1980. The bank assigned the note to appellees, without recourse.

On April 9, 1980, suit was filed in Pulaski County Chancery Court by appellees against the appellants and other guarantors on the note which had an outstanding balance of $17,436.06, for, among other things, contribution of their proportionate share of the indebtedness to the bank. In the final analysis the trial court granted appellees judgment against each of the appellants individually in the amount of $2,906.01 plus interest and attorney’s fees in the amount of $1,460.43. Each judgment would accrue interest at the rate of $1.25 per day until paid. From this judgment the appellants appeal.

We agree with the chancellor that the case of Hazel v. Sharum, 182 Ark. 557, 32 S.W.2d 315 (1930) correctly states the law in this case. Hazel and Sharum were officers of a bank and, along with others, executed a promissory note. Hazel and another co-maker subsequently paid about half the note. Sharum died and his heirs, at the urging of the bank (payee of the note) paid the balance of the note for which they took an assignment of the note from the bank. The heirs, as assignees of the note, brought suit in chancery court praying for recovery of the amount paid to retire the note. Judgment was awarded in favor of Sharum’s heirs. The judgment was to accrue interest at the rate of 7% per annum.

Although the question before the court in Hazel, supra, was whether the claims were barred by the statute of limitations, the court reviewed the law on the subject of contribution by joint makers when one of them paid a promissory note upon which others were jointly liable. The Hazel case held that an obligation created by obligors jointly liable on a promissory note, one of whom subsequently paid the entire obligation, entitled the payor to contribution by the others on an implied obligation. The court stated:

Here the appellees, having paid the whole amount of the debt for which all were jointly liable, were entitled to maintain an action for contribution against the other joint makers of the note, not on the note, but on the contract which the law implies, an obligation worked out by courts of equity in order to do exact justice between the parties. (Emphasis supplied)

The Hazel court went on to hold that no cause of action between those jointly liable arises until some of them pay the common debt whereupon a three year statute of limitations commences to run on the implied contract of contribution.

We think Hazel v. Sharum, supra, is factually very similar to the case before us. The complaint in the present case sought “contribution and their proportionate share of the original indebtedness to Commercial National Bank.” The chancellor was correct in holding that appellants were liable for their individual proportionate share of the amount paid by the appellee to extinguish the joint indebtedness on the note. However, it appears the appellees were awarded interest at 15 3/4% between the time of payment of the note by them (on February 13, 1980) until judgment was entered and at the same rate afterwards. This was error as the suit was not upon the note but upon an implied obligation which arose when the joint liability to the bank (on the note) was extinguished. The chancellor also erred in awarding attorney’s fees to the appellees. The settled law in Arkansas is that attorney’s fees shall not be allowed except as provided for by statute. Brady v. Aiken, Inc., 273 Ark. 147, 617 S.W.2d 358 (1981). The only statute which could conceivably come into play in the present situation is Ark. Stat. Ann. § 68-910 (Repl. 1979), which allows attorney’s fees specifically incorporated into a promissory note. Since the present case involves contribution on the note and is not a suit to enforce the note itself, this statute is not applicable. Attorney’s fees, therefore, will not be allowed.

The liability being upon an implied contract, the prejudgment interest will be 6% and interest after judgment 10%. Lovell v. Marianna Federal S. & L. Ass’n., 267 Ark. 164, 589 S.W.2d 597 (1979). Constitution of Arkansas, Art. 19, sec. 13.

The case is remanded to the trial court for the purpose of correcting the judgments to comply with this opinion.

Remanded.

Hays, J., not participating.


text:
    Roy Edward HALL v. STATE of Arkansas
    CR 83-54
    650 S.W.2d 587
    Supreme Court of Arkansas
    Opinion delivered May 23, 1983

      William H. Craig, for appellant.

      Steve Clark, Atty. Gen., by: Michael E. Wheeler, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant’s motion to vacate sentence under A.R.Cr.P., Rule 37, alleging a denial of his right to a speedy trial and ineffective assistance of counsel was denied without a hearing by the court. On appeal the appellant argues the court erred in failing to vacate the sentence or in the alternative that appellant is entitled to an evidentiary hearing. We agree that he was entitled to a hearing based upon the allegations of his motion.

The facts of the case establish that the Oak Forest Drug Store was robbed by an individual armed with a sawed off shotgun on December 16, 1980. About a week later, apparently on December 23, 1980, the appellant was picked up when a sawed off shotgun was found in his possession. Witnesses identified the appellant from a lineup and his fingerprints were identified on a piece of tape found at the scene. Apparently some type of arraignment or hearing was held on December 24, 1980 and the result was that appellant’s parole was revoked. He was returned to the Arkansas Department of Corrections where he has been incarcerated since that date. On January 28, 1981, an information was filed charging appellant with the aggravated robbery of Oak Forest Drug Store. A bench warrant was delivered to the Pulaski County Sheriff’s office. The warrant was dated by the Circuit Clerk on February 2, 1981 but was stamped received by the sheriff’s office on January 3, 1981. In any event the warrant was not served upon the appellant until December 23, 1981, according to the return by the Pulaski County Sheriff’s office.

Appellant was arraigned on January 21, 1982. At that time the information had been filed one year, lacking one week. On March 24, 1982, he withdrew his not guilty plea and entered a plea of guilty. The public defender’s office represented appellant at the time of the entry of the guilty plea. Shortly after being returned to Cummins he filed the present motion which was denied without a hearing.

The allegations contained in the appellant’s verified petition state he was confined in the facilities of the Arkansas Department of Correction from December 24,1980 until he pled guilty on March 24,1982. The information was clearly filed on January 28,1981. If these allegations are true the appellant is entitled to be free unless there are excludable periods of time as provided by Rule 28.3. It is not entirely clear that the sheriff’s office held the warrant for 11 months before serving it. In any event the time commences to run, without notice to the defendant, from the date of the filing of the information, unless the defendant is already in custody on the same offense or an offense based upon the same conduct, in which case time is computed from the date of the arrest.

Rule 28.1 (b) provides that if a defendant is incarcerated in prison in this state he shall be entitled to have the charge dismissed with an absolute bar to prosecution if not brought to trial within twelve (12) months from the time provided in Rule 28.2, excluding authorized delays as allowed in Rule 28.3.

We agree that entry of a guilty plea waives the requirements of the speedy trial rule. A.R.Cr.P., Rule 30.2, Clark v. State, 274 Ark. 81, 621 S.W.2d 857 (1981). However, appellant alleged ineffective assistance of counsel. We have set forth the presumptions and proof required to determine whether counsel was ineffective in the case of Blackmon v. State, 274 Ark. 202, 632 S.W.2d 184 (1981). Our rules for a speedy trial are an effort to comply with the requirements of our state and federal constitutions and they are not to be considered as loopholes or havens for criminals. If our criminal justice system is to succeed, it must pull together as a team. Therefore, we remand this case to the trial court for the purpose of a hearing on the allegation of ineffective assistance of defense counsel at the time the guilty plea was entered.

Remanded.


author: Per Curiam. Richard B. Adkisson, Chief Justice, John I. Purtle, Justice,

text:
    Gary YENT v. STATE of Arkansas
    650 S.W.2d 577
    Supreme Court of Arkansas
    Opinion delivered May 23, 1983

      E. E. Maglothin, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

The appellant has filed a motion for a rule to require the Clerk to file a record that was tendered too late. The judgment of conviction was entered on March 8, 1982. Proceedings on a motion for new trial were not terminated until the motion was denied on September 1. The trial court, at the request of counsel, entered orders purporting to extend the time for filing the record to March 31,1983, when it was tendered.

Under Appellate Procedure Rule 5 (b) and its predecessor, Act 555 of 1953, § 20, the trial court cannot extend the time for filing the record to a date more than 7 months after the entry of the judgment, although this court may do so for compelling reasons, such as unavoidable casualty. Pierce v. Pierce, 238 Ark. 46, 377 S.W.2d 868 (1964); Stebbins & Roberts v. Rogers, 223 Ark. 809, 268 S.W.2d 871 (1954); West v. Smith, 224 Ark. 651, 278 S.W.2d 126 (1955). Here counsel made the mistake of obtaining extensions of time in the trial court, past the 7-month deadline, instead of filing a partial record and seeking an extension in this court.

It has been suggested that the 7-month limitation was superseded or extended by Act 123 of 1963 and its successor, Appellate Procedural Rule 4, which provide for extensions of time in connection with post-judgment motions, such as a motion for new trial. The extension, however, is only for the filing of the notice of appeal, not for lodging the record in the appellate court.

Unlike our Appellate Procedural Rule 4, Federal Appellate Procedural Rule 4 provides in its second paragraph that the running of the time for filing a notice of appeal is terminated as to all parties by a timely post-judgment motion and that “the full time for appeal . . . commences to run and is to be computed from the entry” of the order granting or denying the post-judgment motion. Our Civil Procedure Revision Committee, which drafted our present procedural rules, expressly rejected the plan embodied in the federal rule, stating in its Reporter’s Note to our Appellate Procedural Rule 4:

2. Section (b) does not follow the second paragraph of Rule 4 of the Federal Rules of Appellate Procedure. It was believed that the federal rule permits excessive delay with respect to post-judgment motions that might be filed but not acted upon promptly. Consequently, Sections (b), (c) and (d) preserve the procedure that was prescribed by Act 123 of 1963.

It cannot be doubted that the federal rule does permit excessive delay, because the full time for the appellate process begins to run anew upon the filing of a post-judgment motion, and several such motions might be filed successively. The opportunities for intentional delay are innumerable. By contrast, our Rule 4 provides a simple and readily understandable procedure, by which the trial court cannot extend the time for filing the record beyond seven months after the entry of the judgment. During the 20 years our procedure has been in force this is apparently the first instance in which post-judgment proceedings have consumed most of the seven months. Even so, counsel had a simple remedy in this court.

In accordance with our per curiam order of February 5, 1979,265 Ark. 964, the motion for a rule on the Clerk will be granted only if counsel assumes full responsibility for the error or shows other good cause for the delay. j

For the present, the motion is denied.

Adkisson, C.J., concurs.

Purtle, J., dissents.

Richard B. Adkisson, Chief Justice,

concurring. I concur in the majority’s conclusion that the motion for rule on the clerk should be denied because the record was not filed in this court on appeal within seven months from the date the judgment was entered. However, I cannot agree with the precedent set by the majority which holds that Rule 36.22, A.R.Cr.P., and Rule 4, Rules of Appellate Procedure, do not extend the effective date of the judgment for purposes of appeal.

Rule 5, Rules of Appellate Procedure, provides that the trial court cannot extend the time for filing the record on appeal for more than seven months after entry of the judgment.

Rule 4 (a), Rules of Appellate Procedure, provides that notice of appeal shall be filed within 30 days from the entry of the judgment. However, under Rule 4 (c) the time for filing notice of appeal can be extended almost indefinitely when certain post-trial motions are pending.

In interpreting Rule 5, the majority has failed to take into account Rule 4 (c). Because of this today’s decision results in an anomaly. Rule 5 can now require that the record on appeal be filed in this court before Rule 4 (c) requires a notice of appeal to be filed in the trial court.

The following dates are significant to an understanding of the case:

March 8, 1982 Judgment of conviction was filed of record.

April 5, 1982 Motion for new trial was filed by appellant.

May 5, 1982 Motion for new trial denied per Rule 4 (c), Rules of Appellate Procedure.

September 1, 1982 Motion for new trial denied by court order.

September 28, 1982 Notice of appeal filed.

March 21, 1983 Appellant tendered record to supreme court clerk.

I would deny the motion for rule on the clerk because the record on appeal was not filed within seven months from the effective date of the judgment. My difference with the majority is the effective date of the judgment. The majority states that the effective date of the judgment is when it was first entered on March 8, 1982.1 believe the effective date of the judgment is as extended by Rule 36.22, A.R.Cr.P., and Rule 4, Rules of Appellate Procedure. In this case the effective date of the judgment was 30 days after the motion for new trial was filed since there is no indication in the record that appellant requested the court to take the matter under adyisement or to set a definite time for a hearing on the motion as is required by our decision in Coking Coal, Inc., et al. v. Arkoma Coal Corp., 278 Ark. 446, 646 S.W.2d 12 (1983):

Under Rule 4 (c) the party filing a motion for new trial must present the motion to the court within 30 days, and if the matter cannot be heard within the 30 days the movant must, within those 30 days, request the court to take the matter under advisement or to set a definite date for a hearing. If the court does neither, the motion is deemed to be denied at the expiration of 30 days after its filing... Under Rule 4 (d), if the motion is denied by the court or is deemed to have been disposed of, a party desiring to appeal has 10 days from the entry of the order or from the date of the presumed disposition of the motion to file notice of appeal. . . .

It should be noted that in criminal cases the time for filing a notice of appeal does not expire until 30 days after a motion for new trial is considered denied as compared to ten days for other cases as per Rule 4 (d). See Rule 36.22, A.R.Cr.P., which provides: “[T]he time to file a notice of appeal shall not expire until thirty (30) days after the disposition of all motions or applications [for a new trial].”

No consideration on appeal has been given to the affidavit filed by the appellant’s attorney in support of his motion for rule on the clerk. This affidavit attempts to establish that the attorney requested the court to set a hearing on the motion for new trial within 30 days after its filing and that the trial court took this motion under advisement. By filing this affidavit appellant’s attorney has attempted to fall within the rule set out by this court in Coking Coal, Inc., supra. However, the matter contained in the affidavit must be established by the record made in the trial court, not by an affidavit filed for the first time in this court.

John I. Purtle, Justice,

dissenting. I would grant the motion for a rule on the clerk because I think it was timely tendered. ARAP, Rule 4 (c), gives petitioner the right to file this record when it speaks to the issue of motions being filed after entry of j udgment. Rule 4 (c) states that time for appeal does not commence to run until all motions are disposed of by denial or by granting. In this case the trial judge clearly had the motion under consideration until September 1, 1982. I would, therefore, grant the rule on the clerk.


text:
    Thelma MARTIN et al v. FIRST SECURITY BANK, Personal Representative, et al
    83-42
    651 S.W.2d 70
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      Hughes ir Hughes, by: Thomas M. Hughes, III, for appellants.

      Boyett, Morgan & Millar, P.A., by: Mike Millar, for appellees.
   George Rose Smith, Justice.

On August 21, 1981, Frances Quattlebaum went to the Citizens Bank in Beebe and bought two 182-day certificates of deposit, one payable to herself or Thelma Martin and the other to herself or Norma English. Neither certificate made any reference to survivorship, nor was there a delivery of either certificate to its alternative payee before Mrs. Quattlebaum’s death on October 10, 1981. First Security Bank, as personal representative of her estate, brought this suit for a judgment declaring the estate to be entitled to the proceeds of the two certificates. The issuing bank interpleaded the money. The alternative payees claimed the funds, but the trial court declared the estate to be entitled to payment of the certificates. Our jurisdiction is under Rule 29 (1) (c).

The trial court was right. Here the language of the certificates made no reference to survivorship. Even when there is such a reference, the statute requires that the purchaser of the certificate sign a writing stating her intention that the funds be paid to the alternative payee upon the purchaser’s death. Corning Bank v. Rice, 278 Ark. 295, 645 S.W.2d 675 (1983); McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980); Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969).

Here Mrs. Quattlebaum signed nothing in the transactions except an acknowledgment of her receipt of a copy of a printed notice from the issuing bank, explaining that certain penalties would be imposed for early withdrawals of the money, with an exception in case of the purchaser’s death. There was, however, no language of survivorship either in the certificate or in the printed notice, which merely referred to a withdrawal after the purchaser’s death without indicating who would be entitled to make the withdrawal.

The appellants also rely on Act 843 of 1983, which provides in Section 1 (i) that terms such as “designate in writing” shall not be construed to require the depositor or purchaser to affix his signature to an instrument. That repeal of the earlier law, however, is not merely procedural and therefore retroactive, as the appellants argue. To the contrary, we have noted that a survivorship deposit is sometimes referred to as a “Poor Man’s Will.” Lovell v. Marianna Fed. S. & L. Assn., 264 Ark. 99, 568 S.W.2d 38 (1978). The requirement that a written will be signed by the testator is not a procedural formality but a safeguard essential to the substantive validity of the instrument. The same considerations apply to the earlier requirement that the purchaser of a certificate of deposit designate his intention by a signed writing. The 1983 statute cannot apply to this case.

Affirmed.


text:
    Nancy R. SCHULTE et al v. BENTON SAVINGS AND LOAN ASSOCIATION
    83-74
    651 S.W.2d 71
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      Charles Phillip Boyd, Jr. and Eugene J. Mazzanti, for appellants.

      Greg B. Brown, for appellee.
   Frank Holt, Justice.

The issue in this case involves the enforceability of a “due on sale” clause in a mortgage where the mortgagee is a state chartered savings and loan association. The case is certified to us by the Court of Appeals pursuant to the Rules of the Supreme Court and Court of Appeals, Rule 29 (1) (c) and (4) (d).

In 1977, the appellant Ballard Construction Company executed a promissory note payable to the appellee and secured by a mortgage on commercial real property. Included in the mortgage contract was the following due on sale clause:

(j) Acceleration. The maturity of the principal indebtedness secured hereby may be accelerated in any of the following events: ....
(7) If the mortgagor or assignee sells or conveys (or contracts to sell or convey) all or any part of the mortgaged property without the written consent of the holder of said note.

In 1981, appellant Ballard Construction Company sold the mortgaged real estate to the appellant Schulte without the written consent of the appellee. The appellee elected to accelerate the maturity of the indebtedness. The appellant Schulte refused the appellee’s demand that she pay the full indebtedness within 30 days. However, she tendered into the registry of the court the regular monthly installments, which appellee refused to accept, pursuant to the terms of the promissory note. The appellee declared the note to be in default and brought this action to collect the full balance of the note plus attorneys’ fees. The trial court granted summary judgment in favor of the appellee, holding that the appellants were liable to the appellee for the $82,285.58 balance including $2,500 as being a reasonable attorneys’ fee for which the note provided. Hence this appeal.

Appellants argue that the default is based upon a technical provision in the mortgage absent any showing that the security is impaired by the prohibited sale. They cite Tucker v. Pulaski Federal Savings if Loan, 252 Ark. 849, 481 S. W.2d 725 (1972). There, we held that a due on sale clause, such as the one presented here, could not be enforced unless the mortgagee reasonably believed its security was impaired by the sale. See also, Seay v. Davis, 246 Ark. 201, 438 S.W.2d 479 (1969), supplemental opinion on rehearing, 246 Ark. 627, 438 S.W.2d 479 (1969); and Rawhide Farms v. Darby, 267 Ark. 776, 589 S.W.2d 210 (Ark. App. 1979). However, in 1976 the Federal Home Loan Bank Board issued a regulation, 12 C.F.R. § 545.8-3 (f) (1982), permitting federally chartered savings and loans to enforce due on sale clauses without a showing that the security is impaired by the sale. In Independence Federal Savings if Loan Association v. Davis, 278 Ark. 387, 646 S.W.2d 336 (1983), we held that the FHLB regulation pre-empted state law on this issue, citing Fidelity Federal Savings if Loan Ass’n v. De La Cuesta,_ U.S--, 102 S. Ct. 3014, 73 L.Ed.2d 664 (1982). Here the appellee is a state chartered savings and loan association, not a federal savings and loan.

Our legislature enacted Act 242 in 1969 (Ark. Stat. Ann. § 67-1858 (4) and (5) [Repl. 1980]), the constitutionality of which is not questioned, which provides in pertinent part, with respect to the Board governing state chartered savings and loan associations:

ADDITIONAL POWERS OF ASSOCIATIONS. — Irrespective of any limitations contained in this Act [§§ 67-1801 — 67-1862] the Board may adopt rules and regulations authorizing or empowering any association chartered or operating under the provisions of said Act 227 of 1963, as amended, to:
(4) Adopt any business practice, procedure, method or system authorized for a Federal Association doing business in this State; and
(5) Make any loan or investment that a Federal Association doing business in this state is authorized to make; provided, in the absence of a general rule or regulation adopted by the Board the Supervisor may authorize an Association to make any loan or investment that a FederM Association doing business in this State is authorized to make.

The Emergency Clause provides:

It has been found ^nd determined that Federal Associations doing business in this State have and will have an unfair competitive advantage over associations chartered by this State and that it is imperative to immediately, remove such unfair competitive advantage. Therefore, an emergency is declared to exist, and this Act being necessary for the preservation of; the public peace, health, safety and welfare, shall take effect and be in force from the date of its passage and approval ....

The Savings and Loan Association Board promulgated in 1972 regulations which provide in pertinent part:

Rule III

Pursuant to Act 242 of the General Assembly of the State of Arkansas for 1969 [Ark. Stat. Ann. § 67-1801 et seq.] the Savings and Loan Association Board hereby adopts the following regulation:
(1) State Chartered Savings and Loan Associations after April 25, 1972, have the power to: . . .
(c) Adopt any business practice, procedure, method or system authorized for a Federal Association doing business in this State;
(d) Make any loan or investment that a Federal Association doing business in this State is authorized to make; provided, in the absence of a general rule or regulation adopted by the Board the Supervisor may authorize an Association to make any loan or investment that a Federal Association doing business in this State is authorized to make; and . . .
(3) Provided, that it was the clear intent of the General Assembly of the State of Arkansas in adopting Act 242 of 1969 that Federal Savings and Loan Associations doing business in this State should not have an unfair competitive advantage over State chartered associations and in order to implement this intent during interim periods of the quarterly meetings of the Arkansas Savings and Loan Association Board in the event Federal associations are granted powers after April 25, 1972, in addition to those existing or before that date, State chartered savings and loan associations shall have the same powers, unless within a period of ninety (90) days after the effective date of said Federal authorization, the Board at a public hearing shall disallow such powers.

In addition, Rule III — A (1) (a) gives to state chartered savings and loan associations:

(3) The power to offer any form of mortgage which now may be offered by federal savings and loan associations.
(4) The power to offer any form of mortgage which may hereafter be authorized for federal savings and loan associations under any rule, regulation or law which may hereafter be adopted, unless within a period of thirty (30) days after the effective date of such authorization, the Arkansas Savings and Loan Association Board at a public hearing shall disallow such powers.

The recited statute and rules clearly place state savings and loan associations on the same footing as federally chartered associations doing business in this State. Since we held in Independence Federal Savings & Loan Association v. Davis, supra, that federally chartered associations may enforce due on sale clauses in cases without the requirement of showing the security is impaired, it follows that state associations are duly empowered to do the same.

The appellants attempt to avoid the clear import of § 67-1858 and the Arkansas Savings and Loan Association Board’s rules by the argument that, since Rawhide Farms v. Darby, supra, was decided after the FHLB adopted the 1976 regulations, Rawhide requires a holding here that the FHLB rule is inapplicable to state institutions. Suffice it to say that the statute and rules relied upon here were not presented to the Court of Appeals in Rawhide, so Rawhide cannot be a precedent as to their interpretation and applicability.

Since we affirm the trial court on the legal issue that the rule that governs federally chartered associations in Arkansas has been made applicable to state chartered associations by § 67-1858 and the Arkansas Savings and Loan Association Board, we must affirm the summary judgment. There is no genuine issue as to any material fact and the appellee is entitled to judgment as a matter of law. ARCP, Rule 56 (c).

The appellants also argue that the trial court erred in granting attorneys’ fees to the appellee. Ark. Stat. Ann. § 68-910 (Repl. 1979) states that a provision in a promissory note for the payment of reasonable attorneys’ fees, not to exceed ten per cent [ 10%] of the amount of the principal due, plus accrued interest, for services actually rendered in accordance with its terms is enforceable as a contract of indemnity. Here, the relevant portion of the promissory note provides as follows:

If at any time there shall be default in the payment of any monthly installment aforesaid, or any part thereof for a period of thirty days, then thereafter the interest on the entire unpaid principal indebtedness aforesaid shall, at the election of the payee herein without notice be at the rate of ten per cent per annum until paid (in lieu of the rate first above specified). And it is agreed that failure to pay any one of said installments when due or any part thereof that all installments shall immediately come due and payable.
If, after default, in the discretion of the holder thereof, it becomes necessary to place this note and obligation in the hands of an attorney for collection or institution of legal proceedings, the undersigned will be obligated to pay an additional sum as an attorney’s fee in an amount equal to ten per cent of the unpaid principal, plus accrued interest, as provided by law.

It is a familiar rule of construction that the terms of a contract will be construed against the party drafting it, and when there is a doubt as to the meaning of some provision, the doubt is resolved against the party who prepared the contract. Leslie v. Bell, 73 Ark. 338, 84 S.W. 491 (1904); and Allen-West Commission Co. v. People’s Bank, 74 Ark. 41, 84 S.W. 1041 (1905). Here, the quoted portion of the note, supra, appears to define “default” in terms of failure to pay a monthly installment when due and attorneys’ fees are provided for only in case of “default”. The note does not provide for attorneys’ fees in an action to collect on the note in event of acceleration based on a due on sale clause. The appellant continued making the monthly payments by depositing them into the registry of the court. In the circumstances, we hold she was not in “default” within the meaning of the attorneys’ fee provision of the note. Accordingly, the chancellor erred by awarding attorneys’ fees, and to that extent his decree is modified.

Affirmed as modified.


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

text:
    Rachel D. FREEMAN v. George ANDERSON and ANDERSON’S EXXON
    83-80
    651 S.W.2d 450
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983
    [Rehearing denied June 27, 1983.]

      Morgan E. Welch, for appellant.

      Laser, Sharp, Haley, Young ir Huckabay, P.A., for appellees.

      Adkisson, C.J., and Purtle, J., would grant rehearing.

   Frank Holt, Justice.

This case arises from an automobile accident in which the appellee George Anderson forced another vehicle across the center line and into the path of the appellant’s oncoming vehicle. The appellee did not stop at the scene of the accident. In her pleadings the appellant requested, in addition to compensatory damages, punitive damages in the amount of $100,000, alleging the appellee’s fleeing the scene showed a willful and wanton disregard for her welfare. At trial, the appellees stated that they would admit liability conditioned upon the court’s ruling that punitive damages were not recoverable. The trial court ruled that punitive damages are not recoverable for incidents occurring after the collision that had no proximate causation and that references to the appellee’s leaving the scene of the accident or the cause of the accident would be inadmissible. The jury returned a verdict of $500 for compensatory damages in favor of the appellant. Subsequently, the appellant moved for a new trial pursuant to ARCP Rule 59. The trial court denied the motion. Hence this appeal, which is certified to us by the Court of Appeals pursuant to Rules of the Supreme Court and Court of Appeals, Rule 29 (1) (o).

The appellant first asserts that the court erred in not granting a new trial inasmuch as the jury’s verdict was inadequate and contrary to the preponderance of the evidence, the law and instructions submitted to the jury by the court. The medical bills, which were stipulated to be reasonable, introduced by the appellant amounted to $490. In addition there were three estimates of the vehicular damage — one for $150, one for $479.61, and one for $731.23. Even though the appellees stipulated that the medical bills were reasonable charges for the services rendered, they denied that the medical expenses incurred by the appellant were proximately caused by the accident in question. The appellant did not seek medical attention until almost eight months after the accident, which her treating physician stated was unusual if her back troubles were caused by the accident. Furthermore, the physician also testified that the back ailment for which appellant sought treatment had existed prior to the accident. He had treated her two to three years before the accident. Hence, the jury could have found and apparently did find that the medical expenses incurred by the appellant were not proximately caused by the accident in question. In addition to the medical expenses and the vehicular damage, the appellant sought recovery for pain and suffering, which obviously was not proven in a precise amount. It appears that the jury awarded the appellant recovery based on one of the two smaller estimates of vehicular damage plus a small amount for pain and suffering. In Taylor v. Boswell, 272 Ark. 354, 614 S.W.2d 505 (1981), we said:

Civil Procedure Rule 59 has superseded our former statute with respect to new trials on account of the smallness of the verdict. Ark. Stat. Ann. § 27-1902 (Repl. 1962). Rule 59 merely provides that a new trial may be granted for ‘error in the assessment of the amount of recovery, whether too large or too small.’ Our former rule was that when the verdict was for a substantial amount, as this one is, the trial judge’s denial of a new trial for inadequacy of the award would not be reversed unless there was other error or the evidence definitely established a pecuniary loss in excess of the verdict. Bittle v. Smith, 254 Ark. 123, 491 S.W.2d 815 (1973). We need not determine to just what extent our law has been changed by Rule 59, because the appellant would not be entitled to a reversal even under the superseded statute and the former case law.

To the same effect see Waterfield v. Quimby, 277 Ark. 472, 644 S.W.2d 241 (1982). Here, we cannot say there was error in the jury’s assessment of the amount of recovery, nor can we say the award of damages was nominal.

The appellant next contends that the court erred in allowing Officer Steven Young, at the appellees’ request, to return to the stand and testify after his release from the witness rule and in the interruption of appellant’s order of proof. Young was the investigating officer at the accident and he was called to testify by the appellant. On direct examination he testified that he assigned $150 as estimated damages to the appellant’s vehicle. After testifying, Young contacted the appellees and appellees’ attorney to inform them that he had considerable qualifications in the area of automobile body repair and that he was disturbed that no one asked his qualifications when he gave his estimate of the damage to appellant’s vehicle. He denied having talked with anyone else concerning the lawsuit following his testimony. During cross-examination of the appellant, the appellees moved the court to allow Young to return to the stand to tell the jury of his qualifications, which was allowed. The appellant argues the court’s action in this regard was an abuse of the discretion which is granted the court in regulating the mode and order of interrogation and presentation of proof by Ark. Stat. Ann. § 28-1001, Rule 611 (Repl. 1979) and Ark. Stat. Ann. § 28-103 (Repl. 1979). Rule 611 (a) provides:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

This is an area in which the law necessarily vests considerable discretion in the trial court. Parnell v. State, 207 Ark. 644, 182 S.W.2d 206 (1944); Smith v. State, 222 Ark. 650, 262 S.W.2d 272 (1953); Parker v. State, 252 Ark. 1242, 482 S.W.2d 822 (1972); 6 Wigmore, Evidence § 1867 (Chadbourn Rev. 1976); and 2 Louisell and Mueller, Federal Evidence § 334 (1979). We find no abuse of discretion here.

Finally, appellant insists that the trial court erred in excluding evidence that the defendant fled the scene of the accident. She argues that this evidence was relevant to show a willful and wanton state of mind on his part and, therefore, would justify an award of punitive damages. The appellant cites authority for the admission of evidence of hostile actions subsequent to the injury to prove malice at the time of the injury, as well as authority for the admission of evidence that the defendant refused to assist the injured plaintiff after an accident and induced others to refuse to assist him. Pogue v. Rosegrant, 98 S.W.2d 528 (Mo. 1936). Here, the appellant’s proffer of the excluded testimony contained nothing tending to show any of these elements on the part of the appellee. The proffered testimony merely stated that appellees’ truck changed lanes and caused another vehicle going the same direction, to the left rear, to swerve across the center line into the path of appellant’s vehicle, after which the appellee did not stop.

In order to support an award of punitive damages, the evidence must indicate the defendant acted wantonly in causing the injury or with such a conscious indifference to the consequences that malice might be inferred. Negligence alone, however gross, is not a sufficient basis to justify the award of punitive damages. Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982); Hodges v. Smith, 175 Ark. 101, 298 S.W. 1023 (1927). In St. Louis, I. M. & S. Ry. Co. v. Dysart, 89 Ark. 261, 116 S.W. 224 (1919), we defined the prerequisites to an award of punitive damages as follows:

The terms ‘wilfulness, or conscious indifference to consequences from which malice may be inferred,’ as used in the decisions of this court, means such conduct in the face of discovered peril. In other words, in order to superadd this element of damages by way of punishment, it must appear that the negligent party knew, or had reason to believe, that his act of negligence was about to inflict injury, and that he continued in his course with a conscious indifference to the conse quences, from which malice may be inferred. (Italics supplied.)

According to AMI 2217, before a jury can impose punitive damages the evidence must show that the defendant “knew or ought to have known, in the light of surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct [with malice or] in reckless disregard of the consequences from which malice may be inferred.” Here, nothing in the proffered testimony indicated that the appellee knew or had reason to believe that his conduct would likely cause injury. There was nothing that would indicate “conscious indifference.”

In Schlosberg v. Doup, 187 Ark. 931, 63 S.W.2d 337 (1933), we held that the failure of a driver to comply with the law requiring him to give his name, license number, etc. and render assistance to the operator or persons injured in the other car had no bearing on the cause of the collision, and, therefore, the trial court properly refused to give an instruction on that matter. The Supreme Court of Mississippi, in a fact situation somewhat similar to the case at bar, held that the fact that the driver causing an accident drove away from the scene does not require an instruction on punitive damages. Continental Southern Lines, Inc. v. Lum, 254 Miss. 655, 182 So.2d 228 (1966).

We hold, under the facts of this case, that the court correctly refused to admit evidence that the appellee left the scene of the accident as a basis for an award of punitive damages.

Affirmed.

Adkisson, C.J., and Hickman and Purtle, JJ., dissent.

Richard B. Adkisson, Chief Justice,

dissenting. The trial court erred in excluding evidence that appellant fled the scene of the accident. This is a relevant fact regarding the accident which the jury should have been allowed to consider in assessing fault and fixing damages. People who flee the scene of an accident they have caused usually have a good reason for doing so. Under the majority opinion, a tortfeasor may be able to suppress pertinent facts regarding his condition by simply fleeing the scene.

Purtle, J., joins in this dissent.

Darrell Hickman, Justice,

dissenting. I dissent because I think the trial court abused its discretion in allowing the police officer to come back into court and testify for the appellees. Ark. Stat. Ann. § 28-1001, Rule 615 (Repl. 1979), makes the exclusion of witnesses mandatory and if that rule is to mean anything, it should not be easily avoided as it was in this case to the prejudice of the appellant.

Purtle, J., joins in this dissent.


author: Darrell Hickman, Justice.

text:
    Joyce T. FERGUSON et al v. Jake BRICK et al
    82-288
    652 S.W.2d 1
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983
    [Rehearing denied July 5, 1983.]

      McHenry, Skipper ir Barns, by: Merl O. Barns, for appellants.

      John Walker and Samuel Turner, Jr., for appellees.
   Darrell Hickman, Justice.

This is a case about an election but it is not a suit to void an election because of irregularities. It is a suit after an election by a losing candidate seeking to declare an election statute void and thereby attempting to prevent the winner from serving.

The statute was declared unconstitutional by the circuit court but no relief was granted, the trial court finding essentially that the suit was brought too late. We agree and affirm the judgment.

In issue is the mayoral election of West Memphis, a first class city located in Crittenden County. It was held November 2, 1982, and there were six candidates. A total of 7,636 votes were cast. Leo Chitman received the most votes, 2,130, and Joyce Ferguson, the incumbent mayor, was next with 2,069 votes. No candidate received a majority of the votes cast. The election commission did not intend to, and did not, schedule a run-off election between Chitman and Ferguson. Chitman was certified the winner on November 8th.

The reason no run-off was scheduled is because the General Assembly passed Act 175 of 1977 declaring that run-offs in elections for mayors of cities of the first class having mayor/council form of government would only apply to cities having a population between 57,000 and 61,000 population. This Act amended the existing law which provided that in all first class cities with mayor/ council form of government a run-off election must be held two weeks from the day of the election if no candidate receives a majority of votes.

Another suit challenging Act 175 was filed two days after the election and Ferguson could have joined in that suit. She knew of the suit but counsel suggests she declined to join after being told she was not a necessary party. The trial judge, after offering a continuance in order to permit her joinder, dismissed the suit since she was not a party.

This suit was filed late on the day a run-off election would have been held under the old law, after Chitman had been certified. Ultimately the plaintiffs were Ferguson, an eighteen-year-old voter, another candidate in the race, and his wife. They appealed from the trial court’s adverse ruling and argue since Act 175 is unconstitutional, Chitman cannot be qualified for the mayor’s office; therefore, Ferguson, the incumbent mayor, still holds office under the theory announced in Justice v. Campbell, 241 Ark. 802, 410 S.W.2d 601 (1967).

We agree with the trial court’s decision that Act 175 is local legislation in violation of ARK. CONST., amend. XIV. Act 175 is flagrantly local, intended to only apply to two out of numerous first class cities. Knoop v. City of Little Rock, 277 Ark. 13, 638 S.W.2d 670 (1982). And we agree Fergus on waited too late. We do not favor suits after elections by candidates seeking to void an election they would not contest if they had won. We have said many times that some matters that are mandatory before an election are merely directory after an election. Henley v. Goggin, 241 Ark. 348, 407 S.W.2d 732 (1966); Henderson v, Gladish, 198 Ark. 217, 128 S.W.2d 257 (1939); Cf. Gay v. Booker, 251 Ark. 565, 473 S.W.2d 441 (1971). Sometimes the public interest demands the contest cease. In Johnson v. Darnell, 220 Ark. 625, 249 S.W.2d 5 (1952), we held that an otóipál iwajs estopped to challenge the constitutionality of a stáiute under which he claimed benefits. In Searcy County v. Stephenson, 244 Ark. 54, 424 S.W.2d 369 (1968), we held that a candidate was estopped after an election from seeking to recover an illegal filing fee because he could have easily challenged the fee before the election. Ferguson, or any of the other candidates, could have challenged this Act before the election.

In fact, Ferguson was elected two years before under the same Act. Since she received about 70% of the vote in that election, she did not complain about the law. But that merely reinforces the point that a candidate ought to challenge such an act before the votes are counted.

Affirmed.


text:
    THE MILLERS CASUALTY INSURANCE COMPANY OF TEXAS v. James M. FAURIA
    83-22
    651 S.W.2d 80
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983
    [Rehearing denied June 27, 1983.]

      Laser, Sharp, Haley, Young é Huckabay, P.A., for petitioner.

      James R. Pate, for respondent.
   Darrell Hickman, Justice.

We granted review of a Court of Appeals decision in this case to determine whether the court exceeded its jurisdiction in changing the liability of a party that did not appeal from the trial court’s decision. We decide the Court of Appeals did exceed its authority and affirm the trial court’s decision.

On August 25, 1976, Fauria, the appellee, then twenty-three years old, went to Caudle-Brittenum-Standridge Agency seeking automobile insurance in the amount of $100,000 per person and $300,000 per occurrence. The agency issued him a binder in that amount with the appellant, the Millers Casualty Insurance Company, to be effective until September 13, 1976.

On August 31, 1976, Millers contacted the agency employee with whom Fauria had dealt, Carolyn Huffman. Millers informed Mrs. Huffman that it could not provide coverage for Fauria with the limits requested because of his age. Mrs. Huffman contacted Fauria; he went to the agency on August 31st and signed an application for coverage with Equity Mutual Insurance Company. The application was for coverage in the amount of $100,00G/$300,000, and, according to the evidence, was considered to be a binder until the application was accepted or rejected by Equity. On September 1, 1976, Mrs. Huffman gota memo from Millers confirming the prior telephone call that Fauria would only be covered by Millers’ binder until September 13th.

Fauria’s application to Equity was sent to Equity’s general agent, Lewis & Norwood. Mrs. Huffman had failed to check Equity’s manual when preparing Fauria’s application and, therefore, did not see that Equity’s underwriting standards absolutely prohibit coverage for drivers under twenty-five years of age in excess of $25,000 per person and $50,000 per occurrence. Lewis & Norwood crossed out the higher limits on the application, filled in the maximum amount Equity allowed, $25,000/$50,000, and sent the application back to Mrs. Huffman on August 31st or September 1, 1976. The application was accompanied by a memo which explained the changes on the application. Mrs. Huffman returned the memo to Lewis & Norwood on September 2nd with the notation that the lower limits were acceptable. She tried unsuccessfully to contact Fauria to tell him about the change.

On September 6, 1976, Fauria was involved in an automobile accident with Carmat and Juanita Grites, in which Mrs. Grites was injured. Fauria called Mrs. Huffman and she informed him that his limits had been lowered. On September 19, 1976, the Criteses filed suit against Fauria for $300,000. Fauria subsequently filed this action for a declaratory judgment in chancery court seeking a determination of the amount of his automobile liability insurance coverage and the responsibility of the defendants for that coverage. The named defendants were Caudle-Brittenum-Standridge Agency, Millers, Lewis & Norwood, and Equity.

The chancellor found that at the time of the accident Fauria was covered by binders with both Millers and Equity in the amounts of $100,000/$300,000. He found further that Caudle-Brittenum-Standridge Agency was liable to Equity for any amount in excess of $25,000 which Equity might be found to owe. Lewis & Norwood was exonerated.

All the defendants filed notices of appeal with the Court of Appeals, but Equity and Caudle-Brittenum-Standridge Agency later dismissed their appeals and only Millers perfected an appeal. The Court of Appeals, in an unpublished opinion, affirmed the chancellor in all respects but one. It ruled that the chancellor’s finding that Equity’s coverage was for $100,000/$300,000 was clearly against the preponderance of the evidence and, therefore, modified Equity’s liability to $25,000/$50,000. The Court of Appeals was without jurisdiction to modify the judgment against Equity because the judgment against Equity had become final when Equity failed to appeal. A. S. Barboto Co. v. James, 205 Ark. 53, 168 S.W.2d 202 (1943). See also Burks Motors, Inc. v. International Harvester Co., 250 Ark. 641, 466 S.W.2d 945 (1971). In other respects we affirm the Court of Appeals decision, finding no reason to disturb the trial court’s disposition of the issues raised by Millers on appeal.

Affirmed in part.

Reversed in part.


text:
    Stacy KECK & Mike KECK v. AMERICAN EMPLOYMENT AGENCY, INC.
    83-75
    652 S.W.2d 2
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983

      McMath Law Firm, P.A., for appellants.

      Laser, Sharp, Haley, Young ¿r Huckabay, P.A., for appellee.
   Darrell Hickman, Justice.

Mrs. Keck, the appellant, sued the American Employment Agency, the appellee, for damages alleging that the agency was negligent in directing her to a prospective employer who abducted and raped her. At the conclusion of the appellants’ case, the trial court directed a verdict in favor of the agency, finding no substantial evidence to support the claim of negligence. We reverse and remand.

Stacy Keck, the appellant, sought employment through the American Employment Agency, agreed to pay a fee, and was referred to Gregory • Devon Joiner for employment. Joiner, pretending to be an employer who was going to open a motorcycle repair shop, hired Mrs. Keck on Friday, July 13, 1979. She was to go to work Monday, but Joiner called and asked her to come to his office near 65th Street in Little Rock, on Saturday, July 14. There was nothing in the room except a telephone, ashtray, and a television set. She was hired to do routine office work, but was asked that day to sand a board to be used for a sign. Joiner cut a rope in pieces, telling her the rope would be used to spell out the name of the business. Instead he tied her up with the rope and forced her to perform oral sex on him after he had tried to have intercourse with her. He took her to a nearby wooded area, ostensibly to wait for a friend, and then forced her to walk over twently miles along a railroad track to Benton, Arkansas. They arrived in Benton Sunday morning, having walked most of the night. He held her in a motel room and raped her again, twice. He released her Thursday. Joiner was convicted of rape and sentenced to imprisonment.

Stacy and her husband, Mike Keck, sued the employment agency for damages, alleging that the agency was negligent in three ways: Failure to investigate the background of Joiner, failing to ascertain whether Joiner was involved in a legitimate business activity, and failure to warn Mrs. Keck that no background check had been completed on Joiner before offering him as an employer. The trial court found no substantial evidence of negligence.

We review the trial court’s direction of a verdict for the agency by examining the evidence in a light most favorable to the losing party. Lindsey v. Watts, 273 Ark. 478, 621 S.W.2d 679 (1981); Miller v. Tipton, 272 Ark. 1, 611 S.W.2d 764 (1981). The evidence must be given all reasonable inferences and conclusions that would work in favor of the losing parties, the Kecks in this case. Dan Cowling and Associates, Inc. v. Board of Education of Clinton School District #1, 273 Ark. 214, 618 S.W.2d 158 (1981). Generally if there is any conflict in the evidence, or we find the evidence is not in dispute, but is in such a state that fair minded people might have different conclusions, then a jury question is presented, and a directed verdict will be overturned. Moore Ford Co. v. Smith, 270 Ark. 340, 604 S.W.2d 943 (1980).

The questions presented are fundamental ones in the law of negligence: What duty, if any, did the employment agency owe to Stacy Keck; was that duty breached; could the agency have reasonably foreseen such a breach would cause the injury that Mrs. Keck suffered; and, did the negligent act cause or was it a substantial factor in the cause of the injury? There is the additional question of whether the actions of Joiner were an intervening cause; i.e., was the agency bound to protect Mrs. Keck against such actions, and could it have foreseen the violence inflicted?

The question of what duty is owed is always a question of law and never one for the jury. W. PROSSER, LAW OF TORTS, § 45; Keller v. White, 173 Ark. 885, 293 S.W. 1017 (1927): Missouri Pacific Railroad Co. v. Harelson, 238 Ark. 452, 382 S.W.2d 900 (1964). The questions of foreseeability and causation may be ones of fact, depending on the case. W. PROSSER, supra; See Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980); See Brinkley Car Works & Manufacturing Co. v. Cooper, 60 Ark. 545, 31 S.W. 154 (1895). Usually, however, proximate causation is a question for the jury. Larson Machine, Inc. v. Wallace, supra. The trial court ruled that there was no substantial evidence of negligence and that ruling requires us to answer all the questions we have posed. There is no doubt that the agency owed Mrs. Keck some duty; indeed, it is conceded that the ageitcy was under a duty to exercise ordinary care in its relationship with Mrs. Keck. But the appellee was able to convince the trial court, and argues on appeal, that its duty was satisfied when it took an application blank from Joiner, and when he, in fact, said he was an employer. We disagree with that assessment for several reasons, but mainly on the facts in this particular case.

First, there is an Arkansas statute that requires that employment agencies must have a “bona fide job order” before they refer any person for a job interview. Ark. Stat. Ann. § 8P-1023. While this statute may have been enacted to protect the public from fraudulent practices, it states at least the duty every employment agency has regarding its customers. And the facts in this case certainly raise a question of whether the agency used ordinary care in accepting this application by Joiner as “bona fide,” and whether the agency should have delved further into his background, or warned Mrs. Keck it was not verifying Joiner in any way because Mrs. Keck had a right to be naive in some respects and accept at face value an “employer” recommended to her.

Joiner merely called the agency and an order was filled out. The job counselor, Mrs. Jones, who was acquainted with Mrs. Keck, called her on Friday and asked her to come right in. Mrs. Keck asked if she could come in Monday, and was told “No, he’s got to have somebody today,” and “He’s willing to pay half the fee.” The fee was $300.00 in this case. Mrs. Keck said the counselor was enthusiastic about the job possibility, thinking that Mrs. Keck would like the job. Joiner was called and asked to come in that same time, and when he showed up his appearance, according to Mrs. Jones, was “bad.” Mrs. Keck said Mrs. Crowell, another counselor, told her that she was shocked at the way Joiner was dressed. He had on blue jeans and a T-shirt with the word “bullshirt” on it, had long hair and a beard, and was evidently unkempt. Mrs. Jones testified that he looked “bad” and that she and Mrs. Crowell told Mrs. Keck, “Hey, don’t rush into this. Go home and think it over. ” Mrs. Jones said, “We [she and Mrs. Crowell] encouraged her, wait, go over there Monday, think it over the weekend.” This is entirely inconsistent with Mrs. Keck’s statement that she was encouraged to take the job and received no warning or advice whatsoever for caution.

The employment agency made no check at all on Joiner, and insists it owed no duty to do so. No references of any kind were asked for. If it had it would have learned Joiner did not have an office or repair shop when he called; he later rented an office Friday, one hour after he had talked to Mrs. Keck, in a one-story building containing a row of several offices, which was just a room, certainly not suitable for a motorcycle repair shop. A check could have shown that Joiner was living in what was described by an investigating officer as a “flop house;” a dirty run down house where Joiner lived with four others. In summary, the agency did nothing except produce Joiner and accepted at face value his claim of being an “employer.” It insists that was the extent of its duty.

If the agency could not have foreseen any risk in referring Mrs. Keck to Joiner, it was not negligent because negligence cannot be predicated on a failure to anticipate the unforeseen. As Prosser puts the question:

[It] is one of negligence and the extent of obligation: whether the defendant’s responsibility extends to such interventions, which are foreign to the risk he has created. It is best stated as a problem of duty to protect the plaintiff [Mrs. Keck] against such an intervening cause. A decision that the defendant’s [agency] conduct is not the ‘proximate cause’ of the result means only that he has not been negligent at all, or that his negligence, if any, does not cover such a risk. The element of shifting responsibility frequently enters. PROSSER, supra § 44.

Under the circumstances we cannot say as a matter of law the agency fulfilled its duty. An agency exercising ordinary care would have been put on notice something was suspicious about Joiner and his search for an immediate female employee. Indeed, Mrs. Jones’ testimony supports this, when she says she cautioned Mrs. Keck to think it over and not go over until Monday. And twice she said that she was concerned about Mrs. Keck because of Joiner’s appearance. Mrs. Jones testified that she had Joiner wait in Mrs. Crowell’s office, rather than the reception area, because of his appearance. In fact she admitted that she had hidden Joiner in Mrs. Crowell’s office.

One is ordinarily not liable for the acts of another unless a special relationship exists between the two such as master /servant or parent/child. H. L. Wilson Lumber Co. v. Koen, 202 Ark. 576, 151 S.W.2d 681 (1941); Watts v. Safeway Cab & Storage Co., 193 Ark. 413, 100 S.W.2d 965 (1937); See St. Louis & San Francisco Railroad Co. v. McFall, 75 Ark. 30, 86 S.W. 824 (1905).

We believe that a cause of action for negligence against the employment agency was properly stated and was based on the agency’s duty of care which arose out of its contractual relationship with Stacy Keck, its ability to foresee some danger to her, and because it had some degree of control over the employers it made available. This control could have been exercised by making further checks on Joiner. See Duarte v. State, 84 Cal. App. 3d 729, 148 Cal. Rptr. 804 (1978). The employment agency created its relationship with Mrs. Keck by offering its services and thereby put itself in the position of owing a duty to her; and that duty in this case went beyond merely producing a man who claimed to be an employer.

The Restatement of Torts recognizes by two rules that simply because a third person commits a crime, that does not always exonerate one who created the situation which allowed the crime to occur. RESTATEMENT (SECOND) OF TORTS § 448 reads:

Intentionally Tortious or Criminal Acts Done Under Opportunity Afforded by Actor’s Negligence.
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime. (Emphasis added.)

RESTATEMENT (SECOND) OF TORTS § 449 reads:

Tortious or Criminal Acts the Probability of Which Makes Actor’s Conduct Negligent.
If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.

Specifically, where a victim of a rape can show that a defendant who owed some duty to the victim, breached that duty, and could foresee that the breach might result in injury to the victim, and that breach was a significant factor in a rape, then a jury question of negligence exists. In other words, such cases should not be automatically dismissed. In O’Hara v. Western Seven Trees Corp. Intercoast, 75 Cal. App. 3d 798,142 Cal. Rptr. 487 (1977), a woman was raped in her apartment and she sued the landlord and rental agent for failing to take reasonable steps to protect her. The trial court sustained the defendant’s demurrer and dismissed the action. On appeal, the case was reversed holding that the plaintiff had a cause of action. See also Holley v. Mt. Zion Terrace Apts., 382 So.2d 98 (Fla. App. 1980).

In Butler v. Acme Markets, Inc., 177 N.J. Super. 279, 426 A.2d 521 (1981), aff’d 89 N.J. 270, 445 A.2d 1141 (1982), a woman who was assaulted in a supermarket parking lot, sued the store, and received a jury verdict, but the trial judge granted the defendant’s motion for a judgment notwithstanding the verdict. On appeal, the judge’s action was reversed, the court finding that liability for criminal attacks may be imposed where the harm is foreseeable and a reasonable person would have taken precautions against it.

In Duarte v. State, supra, a student was raped in a university residence hall and sued the university. The university’s demurrer was sustained. On appeal the court reversed, holding that a cause of action was stated based on the duty of the university to anticipate the danger.

Of course, the Restatement of Torts and the cases cited do not demand a finding that the agency’s action in this case was negligence which was a significant cause of the rape. But what those authorities do indicate is that such situations can state a cause of action and may present a question for the jury.

A jury question is presented... “In any case where there might be reasonable difference of opinions as to the foreseeability of a particular risk, the reasonableness of the defendant’s conduct with regard to it, or the normal character of an intervening cause. W. PROSSER, supra, p. 290. This description fits exactly the facts in this case.

We are convinced that reasonable minds could disagree about whether the agency in this case should have acted differently, and whether it might have foreseen some possible injury to Mrs. Keck from this unkempt person who said he was an employer. We cannot say, as a matter of law, that reasonable minds could not find that the agency personnel could have foreseen some harm would result to her. Certainly the agency owed Mrs. Keck some duty to either check on Joiner further, warn her that no check had been made, or reject him as an employer. This is borne out by testimony by employees of the agency. Mrs. Jones claims she told Mrs. Keck she had better check the location and everything out. This is clearly an attempt by the agency to shift the burden it owed to Mrs. Keck.

Nor can we say, as a matter of law, that the agency’s possible negligence was not a substantial factor in causing Mrs. Keck’s injuries. We live in a time of locked doors, and other precautions that must be taken against the threat of rape. Rape is an all too common occurrence.

Whether Mrs. Keck was negligent was, of course, a jury question as well. St. Louis-Southwestern Railway Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1961).

The appellant offered a deposition of an employee of another employment agency that Joiner applied to and they refused to list him as an employer because he sounded “fishy.”

It is unclear why the deposition of the other agency was excluded. The briefs state that it was because of relevancy but they fail to abstract the portions of the record where such a ruling was made. The record reflects that after an argument pertaining to whether the deposition was admissible due to Mrs. Beane’s unavailability, the court ruled that it was admissible. Mrs. Keck had introduced evidence that she had subpoenaed Mrs. Beane before trial. Then the employment agency made a relevancy objection and the court said that he would have to read the deposition. The briefs indicate that no further mention is made of the deposition until prior to the trial judge’s ruling that there was no substantial evidence of negligence, when the judge said, “Let’s go ahead and proffer the deposition and have it marked for evidence.”

We infer from that, as the briefs contend, that the trial court excluded the deposition because of relevance. Whether the deposition is admissible is dependent on Ark. Stat. Ann. § 28-1001, Rules 401 and 403 (Repl. 1979). We find that the testimony in the deposition is relevant evidence in that it is evidence of what another employment agency did in a like situation. Before admitting the deposition, however, the trial judge should caution the jury that it should consider the testimony only as evidence of what may be reasonable conduct and not as evidence of the legal standard of conduct. See 2 Wigmore, EVIDENCE § 261 (3d ed. 1940). Initially, of course, the court must determine the admissibility of the deposition under Ark. Stat. Ann. § 28-348 (d) (Repl. 19079).

Reversed and remanded.


text:
    A. Y. McDONALD MANUFACTURING COMPANY v. Earnest SHACKELFORD
    83-95
    652 S.W.2d 8
    Supreme Court of Arkansas
    Opinion delivered May 31, 1983
    [Rehearing denied July 5, 1983.]

      Smith & Smith, by: Raymond C. Smith, for appellant.

      Matthew T. Horan; and Putman, Gallma:n ¿r Dickson, by: E. E. Maglothin, for appellee.
   Darrell Hickman, Justice.

The question is whether it is usury, in violation of the Arkansas Constitution, for a creditor to charge a monthly rate of interest on an open account which exceeds 10% per annum on a monthly basis but would not exceed 10% if figured on an annual basis. The trial court held that it was usury and we affirm the judgment.

McDonald Manufacturing is a Missouri firm that sold goods to Shackelford, an Arkansas plumbing and heating contractor. McDonald sold the goods on an open account and this transaction began in 1978. In 1979, when the account became delinquent, McDonald began adding a "penalty” to each monthly bill and did this for four months. In July the overdue amount was $7,889.02 and the extra charge was $118.34; in August a $171.89 penalty was added to the overdue amount of $11,459.24; in September the amount due was $14,725.34 and the penalty was $220.80; in October, the last time a penalty was charged to Shackelford, the penalty was $330.73 on a principal amount of $13,229.11. Those charges amounted to 1.5% or 18% per year from July through September. In October the charge amounted to interest of 30% per annum.

McDonald filed suit and Shackelford defended on the basis of usury, which, if proved, would void the debt both as to principal and interest. ARK. CONST., art. 19 § 13.

The trial court heard the case sitting as a jury and the facts are essentially undisputed. Beginning in October of 1979, McDonald’s monthly bill to its customers, noted at the bottom: “Past due invoices subject to 1-1/2% (ANNUAL RATE of 18%) service charge per month.” No penalty charges were made until the account had been delinquent for some time. Then, according to McDonald’s credit manager, a penalty was added to encourage Shackelford to pay the account. The credit manager said he was especially aware of Arkansas’s severe penalty for usury and therefore manually calculated the charge so it would not exceed 10% per annum. But, no doubt, this employee was figuring on an annual basis what the interest would be but the charge was made on a monthly basis.

First, we agree with the trial court’s conclusion the penalty was interest, and that is not seriously disputed. See Arkansas Savings & Loan Assn. v. Mack Trucks of Arkansas, 263 Ark. 264, 566 S.W.2d 128 (1978); Bunn v. Weyerhauser, 268 Ark. 445, 598 S.W.2d 54 (1980).

In Brooks v. Burgess, 228 Ark. 150, 306 S.W.2d 104 (1957), we held the debtor need not agree to a usurious rate of interest in order for the charge to be void; it is enough that the rate is charged. In Cagle v. Boyle Mortgage Co., 261 Ark. 437, 549 S. W.2d 474 (1974), we held that it is not necessary for the interest to have been actually collected to violate the constitution because the violation is in the charge. Superior Improvement Co. v. Mastic Corp., 270 Ark. 471, 604 S.W.2d 950 (1980), held that interest charged on a monthly basis violates the constitution even though over 10% would not be collected if the debt was considered on an annual basis. The reason for this is obvious: The debt in such a case is not one payable in a year. It is due monthly. So a creditor cannot charge over 10% monthly on an open account and then hope to stop short later, before the end of the year, and actually collect less than 10% of the sum figured on an annual basis.

In Parks v. E. N. Beard Hardwood Lumber, Inc., 263 Ark. 501, 565 S.W.2d 615 (1978), we dealt with interest charged on an open account and found no usury. But the amount charged monthly was less than 10% per annum.

Affirmed.