text:
    Noel CHARISSE v. Julia ELDRED
    5-5820
    477 S.W. 2d 480
    Opinion delivered March 13, 1972

      Herbert L. Ray, for appellant.

      Little & Lawrence, for appellee.
   John A. Fogleman, Justice.

Appellant Noel Charisse asserts that there was no substantial evidence to sustain the judgment of the circuit court ousting him from the office of alderman of Sulpher Springs upon the ground that he was ineligible because he was not qualified elector of the dty. The usurpation suit was brought by appellee, who was the incumbent alderman defeated for reelection by appellant. We find substantial evidence to support the judgment.

It is conceded that Charisse must have been a qualified elector of Sulphur Springs by having been a resident of the state for one year immediately preceding his election in order to be qualified to serve. See Arkansas Constitution, Art. 3, § 1, Art. 19, § 3; Ark. Stat. Ann. § 19-902 (Repl. 1968). In determining qualifications of voters and public officials, the word “residence” has usually been treated as if it were synonymous with “domicile” and dependent to some extent upon the intention of the person involved. Wheat v. Smith, 50 Ark. 266, 7 S.W. 161; Wilson v. Luck, 201 Ark. 594, 146 S.W. 2d 696; Ptak v. Jameson, 215 Ark. 292, 220 S.W. 2d 592; Phillips v. Melton, 222 Ark. 162, 257 S.W. 2d 931.

The case was tried upon a stipulation of facts. Appellant purchased real property in Sulpher Springs on June 28, 1966, and took possession of it in November of the same year. He had received mail at his address in Sulphur Springs ever since. Charisse maintains a bank account opened in September 1967 at Gravette. His social security records were transferred from his former residence in Los Angeles to the Fayetteville office, from which his social security checks were mailed to his Sulphur Springs address. Appellant’s church membership was transferred to the Christian Science Society of Sulphur Springs in October 1967 and remains there. He filed a federal income tax return in Arkansas in 1967, but did not have enough income to require either a state or federal return in 1966, 1968 and 1969.

It was stipulated he would testify that:
He temporarily left his residence in Sulphur Springs in June 1968 and remained until May 1970 at the request of his daughter in Los Angeles who was having personal problems with her stepfather there; when she graduated from high school, he returned to Sulphur Springs; he never intended to abandon his residence in Arkansas; he voted in the general election in California on November 5, 1968, at the precinct where he registered to vote on August 29, 1966, but was not aware of the procedure by which he might have cast an absentee ballot in Arkansas, or of any legal effect his voting might have upon his Arkansas residence, and did not intend to abandon his Arkansas residence by doing so; he executed a voter registration affidavit in Benton County in September 1970, stating that he had been a resident of Arkansas for four years; he did not assess any real or personal property for taxation or pay any taxes in California between June 1968 and May 1970.

It was also stipulated that: appellant’s daughter and Victor H. and Vinita Halperin would corroborate his testimony as to the reason for his presence in California; the Halperins would testify that when he left Arkansas appellant told them he would be gone only a few weeks, that he advised them through letters of his intention to return and that appellant had not assessed any personal taxes in Arkansas because the Benton County Tax Assessor had advised him that he did not have sufficient property to require assessment; others would testify that he did not intend to abondon his permanent residence in Arkansas when he went to California.

He indicated on the California roster of voters in the precinct where he voted that his residence was on the same street it was in his voter registration affidavit. Water service to appellant’s dwelling house in Sulpher Springs was disconnected on October 31, 1968, gas on November 4, 1968, and electricity on October 29, 1968. Service on all utilities was returned in May 1970.

It is true that the question of intention is one fact. Phillips v. Melton, supra. Appellant places great reliance upon his own declarations of intention. The question of intention, however, is to be ascertained not only by statements of the person involved but by his conduct concerning his “voting” residence. Phillips v. Melton, supra. We have recognized that circumstances may belie protestations of purpose and that the fact finder is not bound to accept claims of intent when the circumstances point to a contrary conclusion, Williams v. Dent, 207 Ark. 440, 181 S.W. 2d 29. The declarations of the person whose domicile or residence is in dispute may be for a self-serving purpose and are sometimes called the lowest species or quality of evidence on the subject. Burr’s Admr. v. Hatter, 240 Ky. 721, 43 S.W. 2d 26 (1931); Youngblood v. Rector, 126 Okla. 210, 259 P. 579 (1927); Pickering v. Winch, 48 Or. 500, 87 P. 763, 9 L.R.A. (n.s.) 1159 (1906); Ashton v. Ashton, 197 Okla. 241, 169 P. 2d 565 (1946); In re Meyers’ Est., 137 Neb. 60, 288 N.W. 35 (1939); Elwert v. Elwert, 196 Or. 256, 248 P. 2d 847, 36 A.L.R. 2d 741; In re Beechwood, 142 Misc. 400, 254 N.Y.S. 473 (1931). They cannot prevail unless borne out by acts. See Hogan v. Davis, 243 Ark. 763, 422 S.W. 2d 412; Pike County School District v. Pike County Board of Education, 247 Ark. 9, 444 S.W. 2d 72; 28 C.J.S. 45, Domicile § 18. When acts are inconsistent with a person’s declarations, the acts will control, and declarations must yield to the conclusions to be drawn from the facts and circumstances proved. Texas v. Florida, 306 U.S. 398, 83 L. Ed. 817, 59 S. Ct. 563, 121 A.L.R. 1179 (1939); Rosenberg v. Commissioner of Int. Rev., 59 App. D.C. 178, 37 F. 2d 808 (1930); Successions of Rhea, 227 La. 214, 78 So. 2d 838 (1955); Barrow v. Barrow, 160 La. 91, 106 So. 705 (1925); In re Dorrance’s Est., 309 Pa. 151, 163 A. 303 (1932), cert. denied, 288 U.S. 617, 53 S. Ct. 507, 77 L. Ed. 990 (1933); Fox v. Commonwealth, 207 Va. 701, 152 S.E. 2d 60 (1967); Bowen v. Commonwealth, 126 Va. 182, 101 S.E. 232 (1919); Lee v. Moseley, 101 N.C. 311, 7 S.E. 874 (1888); New York Trust Co. v. Riley, 24 Del. Chan. 354, 16 A. 2d 772 (1940); aff’d 315 U.S. 343, 62 S. Ct. 608, 86 L. Ed. 885 (1942); In re Beechwood, supra.

The place of exercise of one’s elective franchise is not necessarily conclusive as to one’s intent on the question of domicile or residence for voting purposes, but it is certainly important, and may be the most important evidence on the subject. In re Meyers’ Est., 137 Neb. 60, 288 N.W. 35 (1939); In re Curtiss’ Will, 140 Misc. 185, 250 N.Y.S. 146 (1931); Ex parte Wessinger, 247 Ala. 113, 22 So. 2d 510 (1945). See also, Mallard v. First Nat. Bank, 40 Neb. 784, 59 N.W. 511 (1894). Cf. Alburger v. Alburger, 138 P. Super. 339, 10 A. 2d 888 (1940). In Hogan v. Davis, supra, we said that by executing a voter registration affidavit in another state the registrant had left the matter of his “residence” not seriously open to doubt.

Voting in an election certainly was substantial evidence of appellant’s voting residence, especially when considered with the length of his continuous stay in California, his previous residence and domicile there, and the disconnection of utilities at his Arkansas dwelling place before the date he voted. The trial court’s findings, then, must be upheld even though there is evidence of actions of appellant consistent with his declared intention. The test, on appeal, is whether the evidence supporting the judgment is substantial and not whether it preponderates. Pike County School Dist. No. 1 v. Pike County Board of Education, 247 Ark. 9, 444 S.W. 2d 72; Phillips v. Melton, supra.

The judgment is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    NATIONAL CREDIT CORPORATION v. J. T. RITCHEY
    5-5770
    477 S.W. 2d 488
    Opinion delivered March 13, 1972

      Dickey, Dickey 6- Drake, for appellant.

      Jones ¿r Matthews, for appellees.
   J. Fred Jones, Justice.

This is a “slip and fall” case in which National Credit Corporation appeals from a judgment of the Jefferson County Circuit Court on a jury verdict in favor of the plaintiff-appellee, J. T. Ritchey, in the amount of $57,500. Mr. Ritchey alleged in his complaint that he went to National Credit’s place of business as a business invitee; that he was carrying a bank deposit bag containing $6,300 consisting of sixty $100 bills and six $50 bills; that he slipped and fell on the slick terrazzo floor in the lobby of National’s office and was injured. He alleged that National Credit was negligent in maintaining a slippery floor and by the exercise of ordinary care should have known that the floor was slippery and likely to cause injury; that the floor was highly waxed and polished and National Credit failed to warn him of the dangerous condition. He alleged that after his fall the money was taken from the bank deposit bag and that the loss of the $6,300 was proximately caused by the negligence of National Credit and was an element of his damage.

In its answer National Credit denied that Mr. Ritchey slipped and fell as he alleged, but that if he did so it was because of his own negligence. National Credit further denied that Mr. Ritchey had $6,300 in cash and alleged that if he did have such sum of money, it was never in the possession of National Credit or in the possession of its agents or employees and that National Credit was not liable for such loss.

On its appeal to this court National Credit designates the points on which it relies for reversal as follows:

“Appellant’s motion for a directed verdict and motion for a judgment notwithstanding the verdict should have been granted.
Appellee’s knowledge of the condition of the floor barred his recovery.
The lower court erred in giving plaintiff’s instruction No. IB, section fourth and refusing to give defendant’s instruction No. 19.
The lower court erred in refusing to give defendant’s instruction No. 20.
Appellant’s motion for a new trial should have been granted because the jury reached a verdict in á manner contrary to law.”

Considering the points in the order designated, we are of the opinion that the trial court did not err in refusing National Credit’s motion for a directed verdict and its motion for a judgment notwithstanding the verdict. Mr. Ritchey testified that he took three o'f four steps on the terrazzo floor and his feet slipped on the slick floor; that he tried to protect himself from falling, but that he first landed on his left hip and then on his elbow and shoulder and then finally he bumped his head on the floor. He says that after he bumped his head he was unable to see, but does remember that he had his bank book and money beside him when he first fell. He says that his left side was paralyzed and that he was unable to get up from the floor. He says that he went back to the credit company after he was released from the hospital and the floor was still as “slick as ice.” He testified that about three weeks before his accident he walked over, the same area with Mr. George Puddephatt, the manager of National Credit, and that Mr. Puddephatt’s foot slipped five or six inches on the slick floor and that he remarked to Mr. Puddephatt that the floor was too slick, whereupon Mr. Puddephatt told him that they had just recently changed wax; that they knew it was too slick but did not know whether any changes would be made or not. He testified that he told Mr. Puddephatt that somebody was going to get hurt on the floor as it was too slick to stand up on and that Mr. Puddephatt told him he knew it.

Mr. George Puddephatt testified that he examined the floor and could see no difference in its condition after Mr. Ritchey fell and its condition prior to his .fall. He testified that Mr. Ritchey had been in the place of business nearly every day for a period of five years. He denied that he ever slipped on the floor himself or had éver seen anyone else slip on it, and he denied that he ever discussed a slick floor with ■ Mr. Ritchey.

Mr. Oliver Lee Thompson testified that he has been janitor and caretaker of the building, involved for 13 years. He testified, that there are two kinds of floor in the National Credit lobby arid offices: He says that on the inside where the employees work, the floor is tile and that in the lobby the floor is terrazzo. He says that in cleaning the terrazzo floor he uses a liquid material in water and wet mops the terrazzo floor in order' to clean it. He says that after the terrazzo florir dries thoroughly, he buffs it. He says this is done once a week except in bad weather when it is done more often. He testified that he does not apply wax to the terrazzo floor. He says that he goes river the floor every morning with a dust mop before anyorie gets to the building and that once each month he cleans and waxes the tile floor inside the offices. He testified that he waxes and buffs the tile floor where the employees work and that after he cleans the terrazzo floor with the liquid substance in water and dries it, he buffs it with the same buffer he uses on the tile floor.

The decisions are not in harmony on slip and fall cases. As pointed out by Chief Judge Miller in the United States District Court case, of Pearson v. U. S., 177 F. Supp. 934, our previous slip and fall cases in Arkansas irivolve situations where the plaintiffs slipped on “something.” Very recently in J. Weingarten v. Thompson, 251 Ark. 914, 475 S.W. 2d 697 (1972), we said:

“There is no dispute about the law. The plaintiff, to. recover, must show either that the presence, of the object ro substance.which caused her fall was the result of the defendant’s negligence or that it had been on the floor for such a length of time that the defendant should have known of its presence and failed to use ordinary care to remove it.”

The Colorado court in Sanderson v. Safeway Stores, Inc., 421 P. 2d 472, in affirming the trial court’s dismissal of an action for damages in a slip and fall case, said:

“In this state proof that the floor was waxed is not enough; it is still incumbent on the plaintiff to prove that the waxing was done negligently resulting in a dangerous condition. . .Testimony that the floor of the store was slick and clean, a common condition, fails to indicate negligence”

In California a slightly different rule seems to prevail. In Nicola v. Pacific Gas and Electric Co., 50 Cal. App. 2d 612, 123 P. 2d 529, the California Court of Appeals said:

“If wax, or, as in the present case, both wax and soft soap, are applied to the floor, it must be in such manner as to afford reasonably safe conditions for the proprietor’s invitees, and if such compounds cannot be used on a particular type of floor material without violation of the duty to exercise ordinary care for the safety of invitees, by reason of the dangerous conditions they create, they should not be used at all. Of course slipperiness is an elastic term. From the fact that a floor is slippery it does not necessarily result that it is dangerous to walk upon. It is the degree of slipperiness that determines whether the condition is reasonably safe. This is a question of fact.

By this opinion we adopt the view expressed by the California Court in Nicola and hold that the question of negligence was properly submitted to the jury in the case at bar.

Under the appellant’s second point it argues that as a matter of law Mr. Ritchey’s negligence was as great or greater than that of National Credit. The cases cited in support of this contention are automobile-train collision cases wherein comparative, or contributory negligence, is more clearly distinguishable than in slippery floor cases. The appellant seeks to invoke the general rule that when reasonable minds cannot differ as to the plaintiff’s negligence being at least eaual to, if not greater than, the defendant’s negligence, then the court should so hold as a matter of law, without submitting the question to a jury for determination. The parties have cited no Arkansas slip and fall cases on this point and we have found none. However, in the Wisconsin case of Sturm v. Simpson’s Garment Co., 271 Wis. 587, 74 N.W. 2d 137, the plaintiff slipped and fell on a snow covered vestibule floor and the court in that case said:

“It is only in rare instances that this court has disturbed a jury’s apportionment of negligence under our comparative negligence statute, sec. 331..045. We consider that under the facts of this case the comparison of negligence was peculiarly for the jury.”

We hold likewise in the case at bar.

As to the appellant’s third point, the plaintiff’s instruction No. 13, as given by the trial court, is as follows:

“If you decide for J. T. Ritchey on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate him for any of the following five elements of damages for personal injuries sustained which you find were proximately caused by the negligence of National Credit Corporation:
First: The nature, extent, and duration of any injury and whether it is temporary or permanent.
Second: The reasonable expense of any necessary medical care, treatment, and services received.
Third: Any pain and suffering and mental anguish experienced in the past and reasonably certain to be experienced in the future.
Fourth: The fair value of any currency that was lost.
Fifth: The value of any earnings or profits lost and the present value of any earnings or profits reasonable certain to be lost in the future.
Whether any of these five elements of damage has been proved by the evidence is for you to determine.”

The defendant’s requested instruction No. 19, which was refused by the court, is as follows:

“J. T. Ritchey claims damages from National Credit Corporation for loss of money and has the burden of proving each of five essential propositions:
First: That the bank bag contained money at the time plaintiff came to defendant’s place of business.
Second: That the defendant found the bank bag, or with the exercise of ordinary care should have found the bank bag at the time of the alleged accident.
Third: That the defendant knew or reasonably should have known the contents of the bank bag.
Fourth: That the defendant was guilty of gross negligence in regard to caring for the bank bag.
Fifth: That said gross negligence was a proximate cause of plaintiff’s loss of the money.”

We are of the opinion that the trial court did not commit reversible error in giving plaintiff’s instruction No. 13 and in refusing to give defendant’s instruction No. 19 under the circumstances of this case. The defendant’s proposed instruction No. 19 is clearly not a correct instruction. It is apparent from the record that the attorneys as well as the trial judge recognized the problem in connection with plaintiff’s instruction No. 13, so we are of the opinion that the problem will not arise again in the event of a new trial.

We find no merit in the appellant’s fourth point. The defendant’s instruction No. 20, which was refused by the court, is as follows:

“The defendant is not an insurer of the safety of its customers or of personal property in possession of said customers, but it owes said customers only a duty to exercise ordinary care to keep its premises in a reasonably safe condition for the safety of their person and property. No presumption of negligence arises from the mere fact that a customer sustains a fall while in defendant’s place of business.”

The trial court gave as plaintiff’s instruction No. 10 AMI instruction 1104 as follows:

“In this case J. T. Ritchey was a business invitee upon the premises of National Credit Corporation. National Credit Corporation owed J. T. Ritchey a duty to use ordinary care to maintain the premises in a reasonably safe condition.”

The trial court also gave AMI instruction 603 as the defendant’s instruction No. 16 as follows:

“The fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.”

We are of the opinion that these two instructions given by the court sufficiently covered the points intended by the defendant’s instruction No. 20 which was refused by the court.

Appellant’s fifth point has given us considerable difficulty, but after sifting through considerable obiter dictum we reach the conclusion that this case must be reversed and remanded. In support of its motion for a new trial, National Credit offered in evidence the affidavit of one of the jurors to the effect that after the jury retired to the jury room, they discussed the case for quite awhile and were unable to agree on a verdict; they then agreed that each member of the jury would write down the amount he felt Mr. Ritchey should receive and that these figures would be totaled and divided by 12; that the jurors agreed to be bound by the figure arrived at through this procedure; that this was the procedure followed in arriving at the verdict returned by the jury. In overruling the motion on this point, the trial court correctly noted that the courts frown generally on quotient verdicts and indicated that had the matter been called to the court’s attention promptly after the trial, the court would not have hesitated to call each of the jurors back and allowed them to be questioned as to how they arrived at their verdict in order to determine whether they agreed to be bound by a quotient verdict. The trial court then stated as follows:

“What I am getting at is, the court doesn’t know except by these offered affidavits as to whether they agreed to be bound by the verdict or not, and as we understand the statute, affidavits are not permissible for a juror to impeach his own verdict.”

The trial court then held the affidavit inadmissible and denied the motion for a new trial.

Ark. Stat. Ann. § 43-2204 (Repl. 1964) provides as follows:

“A juror cannot be examined to establish a ground for a new trial; except it be to establish, as a ground for a new trial, that the verdict was made by lot.”

This section was a part of the Criminal Code when it was adopted in 1868.

In the very early case of Pleasants v. Heard, 15 Ark. 403, (decided in 1854), in a civil suit for damages the jury awarded $620 to the plaintiff. One of the jurors stated in an affidavit that in assessing the damages, the jury agreed that each juror sould state the amount he was in favor of assessing, that the several amounts should be added up, and the product divided by the number of jurors and the quotient should be taken as the damages to be assessed in favor of the plaintiff, and this was done. After citing cases pro and con, this court sustained the trial court in refusing a new trail based primarily on the proposition as stated by the court that:

“Every reason of public policy, which would render it improper to permit a juror to impeach his own verdict, for the misconduct of himself, or his fellows, by affidavit, would apply, with increased force, to admissions or declarations made by him out of doors, after rendering the verdict.”

The court went,on to say that to permit such declarations to be proven by others would open a wide door to fraud.

In the 1881 case of St. Louis, I.M. & S. R.R. Co. v. Cantrell, 37 Ark. 519, the jury, in a personal injury suit, returned a verdict for the plaintiff in the amount of $800. The trial judge suggested to the jury they should not let $100 or $200 stand in the way of reaching a verdict and on motion for a new trial, the affidavit of a juror was offered which stated that he was in favor of only $500 and that the urging of the judge induced him to agree to the higher verdict. In holding that the affidavit of the juror should not have been allowed to be filed, this court said:

“. . . the Statute expressly declares that: — ‘A juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot.’ ”

The 1886 case of Ward v. Blackwood, 48 Ark. 396, was a civil action for damages resulting in a jury verdict for the plaintiff in the amount of $1,800. In a motion for a new trial the defendant alleged misconduct of the jury in arriving at its verdict by lot. He filed the affidavits of three of the jurors stating that the jury differed as to the amount of the verdict, and finally by agreement, they wrote the amount of $2,000 on one slip of paper and the amount of $1,800 on another slip of paper, and the two slips of paper were then placed in a hat and one piece of paper was drawn from the hat which contained the verdict of $1,800 on it. This court, withoüt referring to the above statute, recited from the opinion in Pleasants v. 'Heard, supra, and then said:

“The rule laid down in Pleasants v. Heard has not been changed or repealed in civil cases, but on the contrary, in such cases remains in full force.”

In the 1929 case of Steed v. Wright; 179 Ark. 812, 18 S.W 2d 340, á civil suit for damages from an automobile accident resulted in a verdict- for the plaintiff and the defendant urged reversal because .the jury reached its verdict by lot. In passing on the contention this -court siad:

“One juror was offered, whose testimony tended to show that the, jury reached a quotient verdict, and not by lot. The juror offered to testify, but the court excluded it, that the jurors were all agreed that a verdict of some amount should be,rendered, and that they wrote on separate slips of paper what they thought the total amount of the verdict should be, which was totaled and divided by twelve. The testimony of this witness does not show that they agreed .in advance to be bound by such procedure, and were not bound, as the result following that procedure amounted to $4,600. Thereupon, after some dispute and argument, the jury finally agreed upon a $5,000 verdict. Under § 3220, C. & M. Digest, ‘a juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for á new trial, that the verdict was made by lot.’
Conceding that this statute applied to civil cases, the evidence of the juror did not tend to establish that the verdict was determined by lot, under the rule announced in Speer v. State, 130 Ark. 357, 198 S.W. 113, and Snow v. State, 140 Ark. 7, 215 S. W. 3.”

The footnote in this case appears as follows:

In the 1932 case of St. Louis-San Francisco Ry. Co. v. Steele, 185 Ark. 196, 46 S.W. 2d 628, a verdict by nine jurors was rendered for the plaintiff in a civil suit for damages and the defendant moved to set the verdict aside because it was arrived at by lot. Three of the jurors who did not sign the verdict testified that each of them was unwilling to render a verdict for the plaintiff; that the jurors who agreed on a verdict were in favor of returning a verdict for the plaintiff in different amounts; that these nine jurors set down the different amounts each was willing to allow and divide it by nine and the result was the amount of the verdict returned by the nine jurors signing it, in the amount of $1,737.50. The foreman of the jury testified that he had no recollection, of the matter but if such suggestion was made, it , was not carried, out. He testified that the verdict was arrived at by the jurors continuing to lower and raise the individual amounts of what they thought the verdict should be. In that case this court said: . .

“In any event, their testimony tends to show it was a quotient verdict, and it could not be impeached by the testimony of any of the jurors, whether they agreed to it or not, as having been reached by lot. Citing Speer v. State, 130 Ark. 457, 198 S.W. 113; Steed v. Wright, 179 Ark. 812, 18 S. W. (2) 340; Chess & Wymond Co. v. Wallis, 134 Ark. 136, 203 S.W. 274.”

This court then continued:

“A juror cannot be examined to establish a ground for a new trial, except it be to establish as such ground that the verdict was made by lot, and, although the law has been changed allowing a verdict to be returned by nine jurors, the prohibition of the statute against its being impeached by a juror still applies, although the juror so attempting to impeach it did not sign the verdict.”

Under civil procedure, Ark. Stat. Ann. § 27-1901 (Repl. 1961) provides grounds for granting a new trial, two of the grounds being as follows:

“First. Irregularity in the proceedings of the court, jury or prevailing party, or any order of court or abuse of discretion, by which the party was prevented from having a fair trial.
Second. Misconduct of the jury or prevailing party.”

Under criminal procedure, Ark. Stat. Ann. § 43-2203 (Repl. 1964), a new trial may be granted on seven grounds, the third one being, as follows:

“Where the verdict has been decided by lot, or in any other manner than by a fair expression of opinion by the jurors.”

The above sections as well as § 43-2204, supra, were lifted verbatim from the civil and criminal codes approved July 22, 1868. In the preface to the original code, the code commissioners who prepared it make the following observation:

“As to the system of practice herein instituted, and the radical changes made in the former practice, it is not the purpose of those who have been engaged in the preparation of this Code to offer any observations. The General Assembly of the State has approved the system — a similar system is established in many of the States, and especially in the great States of New York, Kentucky and Alabama; and it is respectfully suggested to the profession that the law-reports and authorities of the States named are applicable here, and will be found useful if not, indeed, indispensable to the practitioner.”

As indicated in the above cited cases, affidavits of jurors have heretofore been offered in civil cases in support of motions for new trials based on the contention that the verdict was arrived at by lot, but in each of these cases it was determined that the verdict was a “quotient” verdict rather than a verdict by lot. However, in the 1955 case of Scott v. Shairrick, 225 Ark. 59, 279 S.W. 2d 39, a jury verdict was rendered in favor of the plaintiff in an automobile negligence case and the defendant attempted to have the verdict set aside because of misconduct on the part of the jury. The misconduct complained of concerned an allegation that one of the jurors inquired about the identity of the person in the courtroom and was advised that he was an insurance adjuster. The trial court properly refused to allow the defendant to call one of the jurors to testify at the hearing on the motion, but in affirming the judgment of the trial court, we said:

“The trial court was of course correct. A juror cannot be examined to establish a ground for a new trial unless the alleged ground be that the verdict was arrived at by lot. See Ark. Stats., § 43-2204. Although this statute is digested under title of Criminal Procedure, it has many times been held to apply in dvil cases.”

We recognize the inherent dangers in permitting a juror to testify, by affidavit or otherwise, as to irregularities concerning the manner in which a jury arrives at its verdict, or as for that matter, to anything else that goes on inside the jury room during the course of deliberation. However, we also recognize the importance of a jury verdict reflecting the combined serious and honest deliberation of each member of the jury in attempting to arrive at a true and just verdict, for in no other way can the integrity of our jury system be protected and preserved. We see no good reason why § 43-2204, supra, should not apply in dvil cases the same as in criminal cases.

Following the suggestion, supra, made by the commissioners who originally prepared our civil and criminal codes, we find that the Supreme Court of Kentucky, as recently as 1942, was confronted with the precise question on similar facts as is presented in the case at bar. In Louisville & N. R. Co. v. Marshall’s Adm’x, 158 S. W. 2d 137, the plaintiff was awarded judgment on a jury verdict for $13,538.16. The defendant, in an amended motion for a new trial, charged misconduct on the part of the jury in arriving at its verdict. The defendant alleged that upon entering the jury room to consider their verdict, the jurors first determined the liability of the defendant; that they then entered into an agreement among themselves for each member to write down the amount he thought the verdict in favor of the plaintiff should be, and that the sum of these amounts would be divided by 12 and the quotient returned as the amount of the verdict. The defendant alleged that this allegation could be proven by members of the jury and it requested that the jurors be permitted to testify on that issue.

The Kentucky Criminal Code contained the same provision as our code, § 43-2204, supra. The Kentucky Court quoted at length from the text in 27 R. C. L., §§ 19 and 20 and held that a verdict rendered, as alleged in the motion, amounted to a verdict reached by lot and that a juror’s testimony is admissible in evidence to prove such allegations in civil as well as criminal cases. We are of the opinion, therefore, and we so hold, that § 43-2204, supra, applies in dvil cases as well as in criminal cases.

When each juror first arrives at the amount he thinks the verdict should be and makes known that amount to the other jurors, if the jury then adds the amounts and divides the sum by their number and agree on the result as the jury verdict, then the verdict so made is a quotient verdict. While we in no wise approve of such procedure, a verdict so made cannot be later impeached by the testimony of a member of such jury. Where such procedure is agreed to by the jury in advance before each juror determines and reveals what amount he thinks the verdict should be, a verdict so made is no longer a mere quotient verdict, but amounts to a verdict by lot and each juror is in a position to control the odds. We hold therefore, that where by prior agreement a quotient verdict is made by lot in civil as well as in criminal cases, the affidavits and testimony of the jurors may be admitted in evidence in proof of such fact, and when it is properly proven that a verdict was made by lot, the verdict should be set aside and a new trial granted.

We are of the opinion, therefore, that the trial court erred in concluding that he had no authority to accept the proffered affidavit or hear the testimony of the jurors in the case at bar, and that this case should be reversed and remanded to the trial court with instructions to accept the affidavits or hear testimony in connection with the appellant’s petition for a new trial and grant or deny the motion as the proof may require.

Reversed and remanded.

Harris, C. J., not participating.

Brown, J., concurs.

      “In Ward v. Blackwood, 48 Ark. 396, the court held that this statute did not apply to civil cases. (Reporter).” .


author: Conley Byrd, Justice.

text:
    Buford MARTIN et al v. W. T. LANGLEY
    5-5842
    477 S.W. 2d 473
    Opinion delivered March 13, 1972
    [Rehearing denied April 10, 1972.]

      Reid, Burge ir Prevallet, for appellants.

      John Mayes, Graham Partlow, E. Patterson ir Oscar Fendler, for appellee.
   Conley Byrd, Justice.

Appellee W. T. Langley, an automobile dealer, brought this action against appellants Buford Martin and Lonnie Boydston, co-partners doing business as United Insurance Agency, upon the theory that Lonnie Boydston, appellee’s long time insurance agent, had undertaken to procure a “package” of insurance policies to cover appellee’s automobile business and had failed to do so. Appellee and his secretary both testified that they talked to Boydston and told him to put in force the “package” deal. Boydston denied having talked to appellee but admitted talking to the secretary. He said he told the secretary that he did not know what insurance coverage appellee wanted and that he told the secretary to have appellee call him. Boydston did renew one policy already in effect. The jury found the facts in favor of appellee and fixed the damages resulting from a fire loss at $25,000. For reversal appellants contend:

“I. The trial court erred in admitting into evidence appellee’s exhibit No. 7.
II. The trial court erred in not granting a mistrial as the result of remarks made by one of appellee’s counsel.
III. The trial court erred in deleting from its instruction No. 5 reference that the damage had to be covered by the insurance contract.
IV. The trial court erred in giving its Instruction No. 8.
V. The trial court erred in not granting a mistrial because of improper and prejudicial argument by one of plaintiff’s counsel.
VI. The jury verdict was excessive.”

POINT I. Exhibit No. 7 to which appellant objected is a Chrysler Motors Corporation statement showing a total owing to Chrysler in the amount of “$1742.96 CR”. This exhibit was offered along with a number of other statements to prove the value of parts destroyed in the fire. Appellants objected to the exhibit on the grounds that it showed on its face that it was a credit and that it was confusing because the figure $1742.96 was marked through with a pencil and the figure $1242.96 was written above it. During direct and cross-examination it was determined that the items shown on the statement carried a bookkeeping code and that the code was defined on the back of the statement. Neither the codes nor appellee’s testimony with respect thereto were favorable to him. Thus if there was any error in admitting the exhibit, the record demonstrates that it was not prejudicial to appellant. National Fruit Products Co. v. Garrett, 121 Ark. 570, 181 S.W. 926 (1916); Gerald B. Lambert Co. v. Newton, 174 Ark. 209, 294 S.W. 707 (1927).

POINT II. During cross-examination of appellee concerning submission of duplicate invoices, the following occurred:

“MR. FENDLER: If the Court please, I think he ought to be instructed this line of questioning ought to be discontinued. If there is any error in presenting these invoices, he ought to sue Mr. Partlow and sue me. If we caused any damages here, we ought to be sued, not our client.
MR. BURGE: If the Court please, I object to Mr. Fendler’s speech. This is cross-examination and proper.
MR. FENDLER: If the Court please. It is not proper. This gentleman presents what he thought were his invoices. It is obvious on the face of the invoice it is identical. How could he be trying to mislead the jury? I move this line of questioning be discontinued.
MR. REID: If the Court please, I move for a mistrial again because of statements made by Mr. Fedrt■ler i'rt presence of the jury.
THE COURT: Both objections overruled and motions fór mistráil denied; and you may proceed.”

The record shows that a number of appellee’s records were lost in the fire. Appellee gathered up what he could. Immediately preceding the objection above appellee had stated that he did not review the invoices he found but merely turned them oyer to his lawyer. Admittedly the trial court has wide discretion in determining action appropriate to eliminate prejudicial effects of remarks of counsel and will not be reversed except for a manifest abuse .thereof. Bethel v. State, 180 Ark. 290, 21 S.W. 2d 176 (1929). From the record here presented, we cannot say that the trial court erred in refusing the motion for mistrial.

■ POINT HI. Instruction No: 5 as offered by appellant provided: : ; ¡ . ¡ "y

“W: T. Langley claims damages from Lonnie Boydston and has the burden of proving each' of three essential propositions:
First, that the Defendant entered into a contract with him to issue insurance which would cover the loss claimed;
Second, that the Defendant did not procure the insurance which would cover the loss claimed;
And third, that' the Plaintiff has sustained damages that would be'covered by the contracts of insurance.”

The trial court modified the last paragraph to read:

“And third, that the Plaintiff has sustained damages that would be covered by the contract.”

Appellant here argues that the court’s modificatión left out the essential element that if the appellee were entitled to recover, the damages would have been only elements of damages covered by the policy of , insurance. While it is true that appellee’s damages were limited to only those elements that would have been covered by the insurance policies, any error in amending the instruction was cured by instruction No. 8 given by the court. (Discussed in Point IV).

POINT IV: Instruction No. 8 given by the court was as follows:

“You are further instructed that when an insurance agent undertakes to procure a policy of insurance for another affording protection against a designated risk or designated risks, the law imposes upon the insurance agent the duty, in the exercise of reasonable care, to perform the obligation that the agent has assumed, and within the amount or amounts of the proposed policy or policies, the agent may be held liable for any loss suffered by the applicant attributable to the failure of the agent to provide such insurance. In this case, if you believe from a preponderance of the evidence that the Defendants, Buford Martin and Lonnie Boydston, có-partnérs, doing business as United Insurance Agency, contracted with the. Plaintiff Langley to obtain insurance covering his automobile business including insurance policies to insure against losses on fire and extended coverage on contents and dealer’s open lot, or any one or more of these policies, and that they, the said Defendants, Martin and Boydston, or either of them as partners of United Insurance Agency, failed to exercise reasonable care in their efforts to provide said insurance in accordance with their oral ágreement with the Plaintiff Langley, your verdict will be for the Plaintiff Langley. And it will be your duty to assess as damages whatever sum you may agree upon which will fairly compensate him for his net loss under the contract less the premium therefor.
On the other hand, if you find that there was no contract, your verdict will be for the Defendants.”

Appellant here contends that the foregoing instruction was erroneous because it deals with the appellant’s duties in terms of “reasonable care” and because of the language in the second paragraph which refers to “or any one or more of these policies.”

We find no error in the use of the term “reasonable care” when applied to appellants’ duties. In fact the language is more favorable to appellants than they were entitled to have if they had contracted with appellee to furnish the coverage as alleged.

Neither do we find any error in using the term “or any one or more of these policies” in referring to the coverages on contents and dealer’s open lot. Appellants’ assertion here is that the use of the phrase “or any one or more of these policies” permitted the jury to assess damages under any of the four coverages originally sued upon even though two of the coverages were withdrawn. Since the court enumerated the coverages being submitted to the jury immediately preceding the phrase “or any one or more of these policies”, the term “these policies” could only refer to the coverage just enumerated.

Appellants also objected to this instruction on the basis that it permitted the jury to use conjecture in establishing damages. The instruction, however stated that the agent could be held liable only within the limits of the proposed policies. If appellants wished more definitive instructions on the amount of damages recoverable, they should have requested instructions containing the language desired.

POINT V: With reference to the alleged improper and prejudicial closing argument of appellee’s counsel, the record does not show any of the argument of counsel, only the objection and ruling by the trial court as follows:

“MR. BURGE: We object to his remarks about a ‘monied man.’ We ask for a mistrial in view of his remarks about the money man.
COURT: I don’t believe there is any evidence about any money anybody has got.
MR. FENDLER: I don’t want to argue that, but all the way through—
COURT: The court is going to sustain the objection. The jury it told to disregard the last remark of the attorney.
MR. BURGE: Are you denying my motion for mistrial?
COURT: Yes.”

From this record, we are unable to say that the trial court abused its discretion in refusing a mistrial.

POINT VI. On direct appellee testified to damages totaling over $40,000 that would have been covered by the policies on contents and dealer’s open lot. While it is true that the cross-examination discredited his damages to some extent, we are not able to say that the jury’s verdict in the amount of $25,000 is not sustained by the evidence.

Affirmed.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    Paul Stephen BENNETT v. STATE of Arkansas
    5692
    477S.W. 2d 497
    Opinion delivered March 13, 1972

      Carpenter, Finch & McArthur, for appellant.

      Ray Thornton, Atty. Gen., by: John D. Bridgforth, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The Appellant was charged by felony information with the crime of the sale of marihuana in violation of Act 590 of 1971 (Ark. Stat. Ann. §§ 82-2601 — 38 (Supp. 1971). The trial court, sitting as a jury, found appellant guilty and sentenced him to one year imprisonment in the State Penitentiary and ordered that the appellant serve one-third of this sentence before becoming eligible for parole. For reversal of that judgment the appellant, through court-appointed appellate counsel, contends that the alleged violation was a misdemeanor and, therefore, the court erred in sentencing him to the penitentiary since the Act does not provide for imprisonment in the penitentiary. In other words, the appellant asserts that the alleged violation of this Act constitutes a misdemeanor and not a felony. The pertinent penal provision of this Act (§ 82-2617) reads:

(1) Any person who violates this subsection with respect to:
(i) a controlled substance classified in Schedule I or II which is a narcotic drug, is guilty of a crime and upon conviction may be imprisoned for not more than fifteen (15) years or fined not more than $25,000 or both * *

The statutory definition as to what constitutes a felony or a misdemeanor has existed since 1869. Legislation enacted that year provided that:

“Public offenses are felonies and misdemeanors” Ark. Stat. Ann. § 41-102 (Repl. 1964);
“A felony is an offense of which the punishment is death or confinement in the penitentiary” § 41-103;
“All other public offenses are misdemeanors” § 41-104.

These definitions have remained unchanged. The words as to imprisonment or confinement “in the penitentiary” are noticeably and conspicuously missing from the pertinent penal provision of this 1971 Act. Even so, appellee argues that the use of the term “crime” together with the harsh penalty provided in the penal provision in this Act requires that we construe the Act to read that the legislature intended this alleged violation to be a felony. However, we have held that the words “misdemeanor” and “crime” are synonymous terms even though the latter be “of a deeper and more atrocious dye” and the former a “gentler name”. Hardaway v. State, 237 Ark. 732, 375 S.W. 2d 676 (1964); Rector v. State, 6 Ark. 187 (1845). Another well established rule of law with respect to statutory construction is that penal provisions are strictly construed and “nothing will be taken as intended which is not clearly expressed and all doubts must be resolved in favor of the defendant.” Shepherd v. State, 246 Ark. 159, 439 S.W. 2d 627 (1969); Thompson, Commissioner of Revenues v. Continental Southern Lines, Inc., 222 Ark. 108, 257 S.W. 2d 375 (1953); State v. Arkadelphia Lumber Co., 70 Ark. 329, 67 S.W. 1011 (1902); Casey v. State, 53 Ark. 334, 14 S.W. 90 (1890).

For more than 102 years the definition as to what constitutes a felony or a misdemeanor has existed by statutory law in plain and unambiguous language. Further, these definitions are recognized by our case law. McIlwain v. State, 226 Ark. 818, 294 S.W. 2d 350 (1956); Algood v. State, 206 Ark. 699, 177 S.W. 2d 928 (1944); Burrell v. State, 203 Ark. 1124, 160 S.W. 2d 218 (1942); Cheaney v. State, 36 Ark. 74 (1880). In Cheaney we find this pertinent language:

“In all our penal legislation, when the word imprisonment only is used, it is understood to mean imprisonment in a county jail or local prison, and and when the legislature has intended imprisonment in the penitentiary, it has been so expressed.”

In the case at bar, in view of our statutory definitions and the recognition of their meaning by our decisions, we cannot say that the alleged violation of Act 590 of 1971 constitutes a felony.

Furthermore, we observe that within the past month our legislature in a special session amended Act 590 of 1971, including the penalty provisions before us. The title to this amendatory act (Act 67 of 1972, First Extraordinary Session) provides, inter alia, that it is: “An Act *** to clarify penalties***.” The emergency clause, Section 9, reads: “It is hereby found and determined by the General Assembly that there is considerable confusion regarding the application and effect of Act 590 of 1971, that the penalties prescribed in Act 590 are in need of clarification; ***.” In the amendatory act of 1972 the legislature significantly added the word “felony” and provided for imprisonment “in the state penitentiary.” The legislature also increased the penalty for this alleged violation from 15 to 30 years imprisonment.

The appellant also asserts that the court erred in refusing to compel the State to divulge the identity of two informers. The State presented an undercover investigator as a witness who testified that he went to appellee’s apartment accompanied by two confidential informers; that after a few minutes conversation, one of the informers told appellant that “we wanted some grass.” Thereupon the appellant handed to the undercover agent a bag of marihuana for which he was paid $20 by the agent. Appellant contends that the refusal to require the State’s witness to divulge the names of the two individuals who accompanied him was a prejudicial error because: “I (court-appointed trial counsel) can’t properly defend my client, and it will keep me from finding any contradictory testimony.”

Generally, whether the privilege of nondisclosure of an informer’s identity applies depends upon whether the informer was present and participated in the alleged illegal transaction with which the defendant is charged, or whether the informer was “merely” one who supplied only a “lead” to law enforcement officers to assist them in the investigation of a crime. The identity of an informer is required in certain instances, particularly where he was present as a participant. Roviaro v. United States, 353 U.S. 53 (1957); United States v. Barnett, 418 F. 2d 309 (6th Cir. 1969); Sorrentino v. United States, 163 F. 2d 627 (9th Cir. 1947); Portomene v. United States, 221 F. 2d 582 (5th Cir. 1955); Gilmore v. United States, 256 F. 2d 565 (5th Cir. 1958); Annot., 76 ALR 2d 287. See, also, § 21 Am. Jur. 2d Criminal Law § 225. The rationale is that where the informer is a witness to an illegal transaction, his testimony could be relevant to amplify, modify, or contradict the testimony of a government witness and, therefore, essential to a fair determination of the cause.

In the case at bar the appellant denied the accusation and the testimony of the State’s witness. Therefore, the testimony of the agent’s two companions during the alleged transaction could be relevant and material in contradiction of the State’s evidence, as contended by appellant. In such a situation we find this apt language in Roviaro, supra; “***The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.” In the case at bar it was prejudicial error to overrule appellant’s request for the identity of these two witnesses which he sought for the purpose of determining “any contradictory testimony.” It follows that the judgment is reversed and the cause remanded.

Reversed and remanded.

Harris, C. J., and Fogleman, J., concur.

John A. Fogleman, Justice,

concurring. I do not agree that the legislature provided imprisonment up to 15 years and a fine of not more than $25,000 for a misdemeanor. I think the offense charged was a felony.

My reading of Rector does not say the same thing to me it apparently does to the majority. To me is says • -in common usage, the word ‘crime’ is made to denote such offenses as are of a deeper or more atrocious dye, while smaller faults, and omissions of less consequence are comprised under the gentler name of misdemeanors only.” As I read it, this means that “crime,” in common usage, means something different from smaller offenses called misdemeanors.

Furthermore, the word crime is commonly used in our statutes to refer to felonies, so the words crime and misdemeanor cannot be taken to be synonymous. Such statutes include Ark. Stat. Ann. §§ 41-108 (Repl. 1964), providing for the defense of insanity in case of crime or misdemeanor, 41-109, making idiots incapable of crime or misdemeanor, 41-110, preventing trial of an insane person for crime or misdemeanor, 41-114, protecting a married woman from conviction of crime or misdemean- or when acting under coercion of her husband, 41-115, relating to drunkenness as an excuse of crime or misdemeanor, 41-117, protecting others who commit crimes or misdemeanors, 41-119, defining an accessory to a crime and 41-120, defining an accessory after the fact to a crime. In application of each of these statutes, we have always considered the word “crime” to mean a felony, not a misdemeanor. The difference recognized is best demonstrated by the cases decided before the adoption of Ark. Stat. Ann. § 41-118, abolishing the distinction between principals and accessories before the fact and permitting those charged as principals to be found guilty as accessories after the fact. In those cases, the statutes were applied to felonies but not to misdemeanors. See Strong v. State, 88 Ark. 240, 114 S.W. 239, 22 L.R.A. (n.s.) 560; Burrow v. City of Hot Springs, 85 Ark. 396, 108 S.W. 823; Foster v. State, 45 Ark. 361; Freel v. State, 21 Ark. 212.

In spite of the statutes, this court followed the common law rule relating to accessories, which it could not well have done if the word “crime” in the above statutes had encompassed misdemeanors. It should be noted that whenever the statutes are to apply to all public offenses, the words “crime or misdemeanor” are utilized.

None of our cases, relating to penal statutes where the place of imprisonment is not stated or where the designated place characterizes the offense, involves a situation in which the lawmakers have declared the prohibited act to be a felony. I submit that the usual and proper construction of the word crime denotes a felony unless the context in which it is used indicates otherwise. It is dear that the General Assembly recognized the distinction. In Art. II, § 2 (c) of Act 590 of 1971 the unlawful possession of a controlled substance is declared to be a misdemeanor unless the offense is a third or subsequent one. This is a clear indication that the word “crime” in the context of this act means felony.

My construction of the act in this respect is borne out by the comments of the draftsmen of the Uniform Controlled Substances Act, adopted by Act 590 as indicated in the title of the act and its emergency clause. They had this to say about subsection (c):

Subsection (c) has been drafted specifically to provide for a lesser penalty for simple possession than is provided for the trafficking and illicit manufacturing type offenses under subsections (a) and (b). It is contemplated that subsections (a) and (b) will contain harsh penalties (felony, high misdemeanor, etc.); subsection (c) provides for misdemeanor (or comparable State term) treatment for the simple possession charge.

The amendatory Act of 1972 does not seem to me to have the significance attributed to it by the majority. It seems to me to confirm my construction of the act. The General Assembly recognized that there was confusion regarding the application and effect of Act 590 and that there was a need for “clarification” of the penalties. I do not see how this can be taken to mean that the legislative intent had changed in any respect.

I agree that the judgment in this case must be re-, versed on account of the withholding of the identity of the “informer,” but I would not go so far as to hold that every informer who is a witness to an alleged offense, or who participates in an alleged illegal transaction, must be identified or that the decision is that of the accused in every instance. In Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957), cited in the majority opinion, I find the following appropriate language:

A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure, and, if the Government withholds the information, dismiss the action. * * *
We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual’s right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.

In Roviaro, a sale of narcotics was involved, but the charge related to receipt, concealment, purchase and facilitation of transportation and concealment of illegally imported heroin. The defendant was faced with a conviction unless he could explain or justify his possession of the drug. So far as the defendant in that case knew, he and the informer called John Doe were alone and unobserved at the crucial tíme. Consequently, unless he chose to waive his constitutional right and take the stand, John Doe was obviously a material witness, and his right to cross-examine eavesdropping and observing police officers was clearly an inadequate substitute for the testimony of this man who allegedly purchased heroin from him. John Doe was the only person other than the defendant who could amplify or contradict the testimony of the officers. Under these circumstances the court held that the defendant should have the right to at least interview this material witness.

There is enough similarity here to make Roviaro controlling. It seems to me, however, that an informer who participates or witnesses a transaction does not, ipso facto, lose status as an informer who has been, and who may subsequently be, of material assistance in law enforcement, if his identity is protected. The presence or participation of the informer is, of course, an important factor in deciding whether the privilege may be invoked. If the informer, as in Roviaro, was the only participant, then the necessity for disclosure is obvious.

I would say that, in the ordinary case, even where a participant or eyewitness is involved, the burden is on the defendant to show the existence of circumstances justifying the disclosure of the informer’s identity, where those circumstances are not, as here, apparent. Generally, the materiality of the disclosure to the defense should appear or be shown. The determination of the necessity of disclosure to insure fundamental fairness in the trial should be a judicial one, not that of the accused.

I sincerely feel that the court has gone further than necessary in ruling on this point, so that I do not consider the language of the opinion binding in future cases.

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

       6 Ark. 187.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice, Conley Byrd, Justice,

text:
    The Arkansas State POLICE COMMISSION v. B. G. DAVIDSON
    5-5847
    477 S.W. 2d 852
    Opinion delivered March 20, 1972.

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy Atty. Gen., for appellant.

      Jerry J. Screeton, F. Russell Rogers and James M. Thweatt, for appellee.
   Carleton Harris, Chief Justice.

Petitioner, B. G. Davidson, was a member of the Arkansas State Police Force until July 22, 1971, when he was notified by the Director of the Police Services Division of the Department of Public Safety, Colonel William Miller, that he had been dismissed from the division on the grounds that he had violated Section 111.050 of the Arkansas State Police Manual. The letter advised that the dismissal was effective on that date, but that Davidson would remain on the payroll until he had received pay for vacation time which had accrued to him; further, “I wish you success in any endeavor in which you may engage”. Thereafter, Davidson, in accordance with the provisions of Ark. Stat. Ann. § 42-406 (d) (Repl. 1964), requested a hearing on the charges before the commission, which was granted, the chairman of the commission notifying Davidson on July 30, 1971 that the hearing would be conducted at 2:00 p.m. on Thursday, August 19, 1971, at State Police Headquarters in Little Rock. On August 18, 1971, Davidson filed a petition with the Chancery Court of Pulaski County in which he alleged that the commission had previously followed the practice of hearing appeals by a dismissed trooper in executive season, barring the public and the press from its hearings. Davidson alleged that a motion had been filed on August 11 with the commission wherein petitioner requested that the hearing be conducted as a public meeting, open to the press, and to all persons who might have an interest in the disposition of the case, that appellant responded:

“That the hearing to be held by the Commission on Thursday, August 19, 1971, is for the purpose of making a determination on a personnel matter. Matters concerning personnel may be considered by the Commission in Executive Session and a public meeting is not required. It is the position of the Division of Police Services that the matter of the reinstatement of B. G. Davidson is a personnel matter and that personnel matters can and should be heard and resolved in Executive Session by the Commission.”

This response was delivered to counsel for appellee in the Attorney General’s office.

Davidson asserted that the Arkansas State Police Commission would bar the press and public unless the commission was enjoined and restrained from doing so; that a closed hearing of the case would be in derogation of his civil rights and in derogation of the public interest; in paragraph 8 of his petition, Davidson stated:

“The petitioner expressly alleges that the refusal of the Commission to grant him a public, hearing is motivated by its desire to prevent him from properly presenting his case and obtaining a fair final adjudication thereof, in which matter the public has a vital interest and is further made to prevent the Arkansas State Police Department from being embarrassed about the decision made by Col. William C. filler and Mr. Hal Brueggeman in dismissing this petitioner without justification and apparently for political motives and the petitioner states that he is without means to have his case fairly adjudicated unless the public is permitted to attend his hearing and form its own impressions and evaluations of the procedures and deliberations of the Arkansas State Police Commission.”

It was pointed out that unless the court granted the restraining order, petitioner would have no opportunity for a public hearing, in that the witnesses would be heard in executive session, and any appeal from an adverse decision to the circuit court would be decided by that court entirely on the record prepared before the commission. Davidson prayed that the court issue a temporary injunction restraining the commission from barring the press and public from the hearing and that on final hearing the injunction be made permanent. The temporary injunction was granted, and subsequently, the commission responded to the petition by demurrer, asserting that petitioner had a complete and adequate remedy at law; that his petition amounted to a request for a writ of mandamus upon respondents and that the issuance of such writ was beyond the jurisdiction of the chancery court. The demurrer was overruled and the court proceeded to enter its injunction restraining and enjoining appellant from barring the public and news media from any hearing it may hold concerning the appeal of Davidson from his dismissal. From the decree so entered, appellant brings this appeal.

We agree with appellant that, in substance, this was a suit for mandamus, rather than a petition for injunctive relief. Let it be remembered that appellee asked for a hearing on his dismissal, and to this, he was clearly entitled under the statute; had the commission denied a hearing, Davidson would have been entitled to a writ of mandamus from the circuit court. Appellee is thus in the position of, on the one hand, asking for a hearing, and on the other hand, asking that the type of hearing offered be enjoined. In effect, this can mean but one thing, viz, that Davidson is demanding a particular type of hearing. The fact that the litigation is really a petition for mandamus can best be shown by a determination of whether Davidson, as the matter now stands, has obtained the entire relief sought. The answer is distinctly in the negative, for if appellee is to obtain the relief he desires (reinstatement), there must be a hearing — and he wants the hearing — but he desires that the commission be compelled to conduct it in a certain manner. To illistrate, suppose that the commission decides to let the matter stand “as is” i.e., hold no hearing (and it has never been ordered by any court to hold a hearing, only not to bar the press from any hearing held). Davidson’s only recourse would be to apply to the circuit court for mandamus, the chancery court having no authority to issue this writ.

That the proper remedy was mandamus is recognized by appellee himself for in Paragraph 9 of his petition to the chancery court, he stated:

“The petitioner states that due to the time element he cannot seek a mandamus against the Commission, which requires a notice of from two to seven days and that he will have his case heard at a closed hearing of the respondent Commission unless this court enjoins temporarily, and then permanently, the Commission from closing the hearing to the press and the public ***”

Subsequently, after the granting of the restraining order, a petition for mandamus was filed in the Pulaski County Circuit Court but that court, by letter of August 31, denied the petition for the writ, stating:

“In my studied opinion the petitioner is seeking by way of mandamus to establish a right to have any hearing conducted by the Arkansas State Police Commission to be open to the news media; that mandamus may be used to enforce a right only after same has been once established. The question of whether Mr. Davidson is entitled to have an open hearing is the subject matter of litigation in the Pulaski County Chancery Court. It is self-evident from the record in this case that the Police Commission stands ready to provide Mr. Davidson with the required hearing but the controversy exists between the parties as to what I shall term a ‘closed’ or ‘open’ door hearing. Since the jurisdiction of the Chancery Court was invoked the matter will have to be finally adjudicated by that Court before this Court could entertain petitioner’s plea for Writ of Mandamus.”

We held in Nethercutt v. Pulaski County Special School District, 248 Ark. 143, 450 S.W. 2d 777, that jurisdiction of writs of mandamus, being traditionally common law writs, is restricted to and vested solely in the circuit court. Since we have said that the present action is, in effect, an action for mandamus, it follows that the chancery court had no jurisdiction and should not have entered the order complained of. Rather, that court should have transferred the cause to the circuit court. In Rowe v. Allison, 87 Ark. 206, 112 S.W. 395, this court cited section 5991 of Kirby’s Digest, which is identical to Ark. Stat. Ann. § 27-208 (Repl. 1962), reading as follows:

“An error of the plaintiff as to the kind of proceedings adopted shall not cause the abatement or dismissal of the action, but merely a change into the proper proceedings by an amendment in the pleadings and a transfer of the action to the proper docket.”
The court then went on to say:
“Had the defendants taken issue upon the allegations of the complaint, and not demurred to the complaint, nor moved to transfer, then, under the decisions in Cribbs v. Walker, 74 Ark. 104; Collins v. Paepcke-Leicht Lbr. Co., 74 Ark. 81; Ware v. White, 81 Ark. 220, the court would proceed to consider the case as if tried in the proper forum. But the defendants challenged the jurisdiction of the chancery court by demurring on the ground that the complaint did not show a cause of action. These demurrers should have been sustained and the complaint dismissed if it were not for the provisions of the Code above cited. Instead of assuming jurisdiction of the cause, the court should have transferred the action to the circuit court, when the demurrers developed that there was no cause of action in equity, if a couse of action was stated, [citing cases]”

This same holding has been reiterated on various occasions.

Summarizing, the circuit court was the only court which had the authority to grant the relief sought by Davidson, and this being true, the chancery court, when the demurrer was presented, should have transferred the action to the circuit court.

It is so ordered.

Fogleman, J., concurs.

Byrd, J., dissents.

John A. Fogleman, Justice,

concurring. I concur in the result reached by the majority and the reasoning of the majority opinion. I also feel that appellee had an adequate remedy at law and this opinion is directed to that point.

I agree that appellee’s remedy is by mandamus and that all his pleadings ask that a governmental agency or tribunal be required to hold a public hearing. His allegations are based upon the premise that the State Police Commission had no discretion in the matter. The only excuse really given for the application to the chancery court was appellee’s inability to have a hearing on a petition for mandamus in less than two days after filing. This did not deprive him of an adequate remedy at law. The circuit court had jurisdiction and authority, in aid of its jurisdiction in the mandamus proceedings, to enter a temporary restraining order to the Police Commission to preserve appellee’s rights if it appeared to the court that his rights would be violated before the petition for mandamus could be heard. Ark. Stat. Ann. §§ 32-101, 32-103, 32-201 (Repl. 1952).

The circuit court has inherent power to issue such orders as are necessary to the exercise of its jurisdiction. Dobbins Bros. v. Anderson, 199 Ark. 635, 135 S.W. 2d 325. See also, Arkansas Public Service Commission v. Arkansas-Missouri Power Co., 220 Ark. 39, 246 S.W. 2d 117.

The statute governing mandamus proceedings clearly recognizes this power. Ark. Stat. Ann. § 33-109 (Repl. 1962) reads:

Interlocutory order. — During the pendency of any such proceeding, the court having jurisdiction, or the judge in vacation, may make such temporary orders as appear expedient and proper to prevent injury, waste or damage of whatsoever kind.

Other jurisdictions have found that a court having jurisdiction of mandamus proceedings may issue restraining orders under like circumstances. In Nationwide Corp. v. Northwestern Nat. Life Ins. Co., 251 Minn. 255, 87 N.W. 2d 671, 73 A.L.R. 2d 884 (1958) the Minnesota Supreme Court held that such authority existed under a statute which is virtually identical to Ark. Stat. Ann. § 32-103.

More extensive discussion of this power will be found in 42 Am. Jur. 736, et seq., Injunctions, §§ 10, 11, 13, 14 and 55 C.J.S. 575, Mandamus § 329.

Since appellee’s remedy at law was adequate and complete, I concur.

Conley Byrd, Justice,

dissenting. My disagreement with the majority goes to the classification of this action as “viz, that Davidson is demanding a particular type of hearing.” As I view this statement by the majority they are doing an injustice not only to Davidson but also to the Chancellor who only enjoined the Arkansas State Police Commissioners from barring the press and public from any hearing held in connection with Davidson’s appeal.

The record shows that Davidson, a career State policeman, was publicly fired by written letter charging him with having received public monies to which he was not entitled. In accordance with Ark. Stat. Ann. § 42-406 (d) (Repl. 1964) he made written application for reinstatement. The Commission notified him that a hearing would be held on August 19, 1971, at 2:00 p.m. In the meantime Davidson learned that the Commission had been barring the public and the press from such hearings and on August 11, Davidson requested that his petition be considered at a public hearing in accordance with the Freedom of Information Act, Ark. Stat. Ann. §§ 12-2801 — 12-2807 (Repl. 1968). The Commission did not respond to Davidson’s request for a public hearing until 4:05 p.m. August 17, 1971, which did not leave Davidson with enough time to apply for a writ of mandamus [Ark. Stat. Ann. § 33-106 (Repl. 1962) requires a minimum of two days notice as a prerequisite to a hearing on a mandamus petition and in Savage v. Hawkins, 239 Ark. 658, 391 S.W. 2d 18 (1965), we held such notice to be mandatory.]

Davidson applied to the Chancery Court for a temporary injunction that was granted on August 19, 1971. At that hearing the Commission objected to the Chancellor’s jurisdiction. That afternoon the Commission indefinitely postponed Davidson’s appeal for a hearing pursuant to Ark. Stat. Ann. § 42-406 (d). Davidson then applied to the Circuit court for a writ of mandamus to comoel the Commission to hold a hearing. The Circuit Court by a letter opinion, copied in the majority opinion, denied any mandamus relief until the Freedom of Information Act controversy was determined in the Chancery action.

The permanent injunction entered by the Chancellor reads:

“That this Court has jurisdiction to afford petitioner the relief that he seeks for'the above stated reasons, and this Court specifically holds that the Freedom of Information Act applies to this matter, and that the ‘personal exclusion provision’ in said act does not apply to this matter since the petitioner had not been personnel of the Department of Public Safety since July 22, 1971, when he was officially discharged and his badge and all other muniments of his office were taken away from him.
“IT IS, THEREFORE, CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that the Demurrer of the respondents filed herein is overruled, and the Temporary Injunction rendered by this Court on August 19, 1971, should be, and the same is hereby made permanent, and the respondents are permanently restrained and enjoined from barring the public and the news media from any hearing which they may hold in the future concerning the appeal of the petitioner from his dismissal as a State Police Officer; and the Temporary Injunction Bond of $1,000.00 filed herein in cash by James E. Sparks in behalf of the petitioner, should be, and the same is ordered by the Court to be remitted by the Clerk of the Court to the said James E. Sparks, or James Thweatt, his attorney of record, and the costs of this action are assessed against the respondent Arkansas State Police Commission.”

Thus as can be seen from the order, the Chancellor did not compel the Commission to do any thing. The order entered does not mandamus the Commission to hold any kind of a hearing nor require it to perform any duty — it only enjoins the Commission from barring the news media and the public from any hearing it may hold concerning Davidson’s appeal.

This court has long recognized that equity has jurisdiction to grant relief where the legal remedies are inadequate, Ark. Cotton Grs. Co-op Assn. v. Brown, 168 Ark. 504, 270 S.W. 1119 (1925), and that an adequate remedy at law means a present remedy — not one that may be exercised some time in the future, Taylor v. Bank of Mulberry, 177 Ark. 1091, 9 S.W. 2d 578 (1928). In Black v. Bowman & Trammel, 9 Ark. 501, (1849), the jurisdictional issue was stated in this language:

“It is a general rule, says Judge Story, subject to few exceptions, that where the plaintiff can have as effectual and complete a remedy in a court of law as in a court of equity, and that remedy is direct, certain and adequate, he must resort to a court of law for redress. But where there is a clear right, and yet there is no remedy in a court of law, or the remedy is not plain, adequate, and complete, ánd adapted to the particular exigency, then, and in such cases, courts of equity will maintain jurisdiction.” (Emphasis mine).

In this case the record shows the Commission waited until Davidson did not have a plain and adequate remedy at law, Savage v. Hawkins, supra, before it informed Davis of its intention to hold a secret hearing. Thus at the time Davidson filed his petition in Chancery, he did not have a plain, adequate and present remedy at law because Ark. Stat. Ann. § 33-106 requires a minimum of two days notice before a hearing could be had at law.

On the merits, I agree with Davidson. The letter by which he was fired in effect publicly accuses him of embezzling public money through the receipt of fines that he was not entitled to receive. Ark. Stat. Ann. § 42-406 (d) contemplates that any testimony heard by the Commission be transcribed because it authorizes an appeal to the Circuit Court of Pulaski County upon the record made before the Commission. Thus the Commission by holding a dark secret meeting really SERVES NO confidential personnel problem. When it is remembered that the charge upon which Davidson was fired was by law made a public record, one can only wonder what public purpose the Commission is serving in barring the news media and the public from the hearing it is required by law to hold. Of course, if, in such secret meeting, the Commission should reinstate Davidson, then of course he will have no right of review because of mootness and will not be able to obtain a transcript of the evidence heard — and in that case he will have proved his point that he did not have an adequate remedy at law to publicly vindicate the charges against him. While there may be some who would think that the reinstatement alone should be sufficient vindication, the public, because of the darkness of the secret meeting, may assume that the Commission did nothing more than whitewash the matter.

For the reasons stated, I respectfully dissent.

      “Section 111.050 — Court Costs A-No fee shall be allowed to any member of the Department for the arrest or transportation of persons arrested. No expert witness fees shall be allowed and no other fees granted except as provided by law.”

      See Ark. Stat. Ann. § 42-406 (d) (Repl. 1964).

      Ark. Stat. Ann. § 33-106 (Repl. 1962) provides that petitions for writs of mandamus and writs of prohibition shall be heard no earlier than two days and no longer than seven days, after the filing of the application for such a writ.

      The only prayer in Davidson’s petition was:
      “Wherefore, premises considered, petitioner prays that this court issue forthwith a temporary injunction restraining and enjoining the respondents from barring the press and the public from the hearing to be held on August 19, 1971 at 2:00 p.m. on the case of this petitioner; that upon final hearing said injunction be made permanent.”

      Davidson did not request any reliet m ttus petition under the Freedom of Information Act.