text:
    Patrick Anthony KEATING v. STATE of Arkansas
    CR 73-126
    501 S.W. 2d 607
    Opinion delivered December 3, 1973

      Elbert S. Johnson, for appellant.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

This is an appeal by Patrick Anthony Keating from a circuit court order denying post-conviction relief under our Criminal Procedure Rule 1. Keating was charged, on informations filed by the prosecuting attorney, with two separate counts of burglary and grand larceny committed on May 30, 1970, and on June 4, 1970. He was apprehended in the state of Missouri and, after waiving extradition, was returned to Arkansas on June 8, 1970, at which time the informa-tions were filed against him. His case was set for jury trial on November 9, 1970, at which time Keating, with the assistance of counsel, entered pleas of guilty to both counts and sentencing was deferred at the request of his counsel until November 13, 1970. On that date the trial court entered judgment sentencing Keating to ten years in the penitentiary on one of the counts with that sentence suspended. Keating was sentenced to five years in the penitentiary on the other count with that sentence to be served. Keating did not appeal from his judgments of conviction but on May 31, 1973, he filed his own handwritten petition for post-conviction relief on the grounds that he was not given a preliminary hearing and that he should have been charged or released within 72 hours following his arrest.

The record before us indicates that the pleas of guilty and penalties assessed were the result of plea bargaining; that the prosecuting attorney recommended the suspended sentence on the one charge and the five years to be served on the other charge and that Keating and his attorney acquiesced in the recommendations. The trial court announced that he would follow the recommendations made by the prosecuting attorney and then pronounced the sentences on Keating as above stated.

In his brief on this appeal Keating recognizes that under Ark. Stat. Ann. § 43-806 (Repl. 1964) the prosecuting attorney may file information direct and a preliminary hearing is not required. No evidentiary hearing was had on the petition for post-conviction relief but the trial court denied the petition on the basis of the petition and the original record preserved at the time the pleas of guilty were entered and sentences imposed.

Paragraph (C) of our Criminal Procedure Rule 1 provides as follows:

“If the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the trial court shall make written findings to that effect, specifying any parts of the files or records that are relied upon to sustain the court’s findings.”

The trial court did, in its final order denying the petition, set out its findings from the record that Keat-ing was arrested in the state of Missouri on June 4, 1970; that he waived extradition and was returned to the state of Arkansas on June 8 and was properly informed against directly on June 8, 1970; that bond was set on that day; that Keating failed to make bond and on November 13, 1970, in person and with his attorney, Keating entered pleas of guilty and the sentences were imposed.

Keating now argues on this appeal that the sentence of five years to be served, was too severe for the crime involved. Of course, where a sentence is in excess of the maximum authorized by law, a prisoner would be entitled to relief under Section (A) (c) of our Criminal Procedure Rule 1, but that is not the situation in the case at bar. The record before the trial court revealed that at the trial on November 9, 1970, the court asked the following questions and received the following answers from Keating:

“COURT: You have talked to your Court appointed counsel about each of these crimes of Burglary and Grand Larceny?
DEFENDANT: I did.
COURT: You understand the punishment for them?
DEFENDANT: Yes, sir.”

The trial court in pronouncing the sentences inquired directly from Mr. Keating whether he understood what good behavior meant and Keating replied that he did. The court then inquired whether Keating understood the sentences and Mr. Keating replied that he did.

The statutory penalty for burglary is fixed at not less than two nor more than 21 years. Ark. Stat. Ann § 41-1003 (Repl. 1964). The statutory penalty for grand larceny is fixed at not less than one nor more than 21 years. Ark. Stat. Ann. § 41-3907 (Repl. 1964). The penalties fixed by the court in the case at bar were well within the statute and are not subject to attack under our Rule 1, Credit v. State, 247 Ark. 424, 445 S.W.2d 718, especially when it is raised for the first time on appeal. Bailey v. State, 254 Ark. 628, 495 S.W. 2d 150.

The judgment is affirmed.

Fogleman, J., not participating.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    Walter SMITH and B. J. McADAMS, Inc. v. Ralph NELSON
    73-162
    501 S.W. 2d 769
    Opinion delivered December 3, 1973

      Smith, Williams, Friday, Eldredge & Clark, by: Frederick S. Ursery, for appellants.

      Howell, Price, Howell ir Barron, for appellee.
   Frank Holt, Justice.

A jury awarded appellee $2,000 for compensatory damages in a cause of action based upon malicious prosecution and abuse of process. The sole contention on appeal is that the abuse of process instruction was not warranted by the evidence.

In determining if the evidence is sufficient to submit a cause or issue to the jury, we review the evidence most favorable to the appellee. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689 (1935). Appellee Nelson was hired by appellant McAdams as an assistant driver to Harold Starnes in the operation of one of McAdams’ fleet of tractor trailer rigs. During several out of state deliveries, the truck was dispatched to Los Angeles, California, where Starnes and Nelson arrived on Monday, June 29, 1970. The load was delivered and the two drivers checked into a motel. Tuesday morning Starnes called McAdams’ dispatcher for further instructions and requested additional expense money. Company policy required a call each day from them. The dispatcher informed Starnes that no loads were available and that additional living expense money had been wired to Jerry’s Richfield Truck Stop. Starnes and Nelson proceeded to the truck stop but found no money for them. Starnes again called the dispatcher and was reassured that this expense money had been sent there. The two drivers again ascertained that no funds were there and also checked with the local Western Union where they found no money for them. Both were broke and ap-pellee had to borrow funds. A call was made every day requesting financial relief and hauling instructions until appellee’s arrest on Sunday, July 5. It appears that upon Nelson’s call on July 5 unpleasant words were exchanged between him and the dispatcher, resulting in Nelson’s refusal to tell the dispatcher the whereabouts of the truck other than it was in the vicinity. Nelson, however, furnished his address and telephone number and the local police arrived soon thereafter with a warrant for Nelson and Starnes’ arrest. During the week the warrant had been sworn out by appellant Smith at the direction of appellant McAdams. The warrant charged Nelson and Starnes with larceny by bailee. Ark. Stat. Ann. § 41-3929 (Repl. 1964). Upon his arrest Nelson took the deputies to the nearby truck. Appellant Mc-Adams immediately sent a driver to Los Angeles to pick up his truck. Appellee Nelson and Starnes waived extradition and were returned to Little Rock where the alleged offense was dismissed by the local municipal court.

At trial McAdams adduced evidence that for several days he could not locate appellee Nelson and Starnes or the whereabouts of his property and his purpose in procuring the warrant was the return of his truck. He further testified that he did not intend to have the men arrested and neither knew nor cared whether the two drivers were tried on the charges.

The requirements giving rise to a cause of action for abuse of process are found in Prosser, Law of Torts, § 121 (4th Ed. 1971), and are:

(1) a legal procedure set in motion in proper form, even with probable cause, and even with ultimate success, but,
(2) perverted to accomplish an ulterior purpose for which it was not designed, and
(3) a wilful act in the use of process not proper in the regular conduct of the proceeding.

See also Harper and James, I The Law of Torts, § 4.9 (1956), and generally 72 C.J.S. 1189, and 1 Am. Jur. 2d 250. A paucity of cases involving this type of a tort have reached the appellate level in this jurisdiction. The leading case dealing with the cause of action is Lewis v. Burdine, 240 Ark. 821, 402 S.W. 2d 398 (1966), where a wife was sued by a collection agency for her husband’s debt to a doctor. In the same suit a writ of garnishment was issued before judgment and the wife’s salary impounded resulting in her loss of employment. The wife was found not liable on the debt. The writ of garnishment was held to have been a misuse or abuse of process. See also Baxley v. Laster, 82 Ark. 236, 101 S.W. 755 (1907), dealing with abuse of process and writs of garnishment issued for the purpose of harassment.

The crux of the misuse or abuse of process is the improper use of it after issuance. In other words, abuse of process constitutes a form of extortion or coercion. Prosser, supra. The test of process abuse is not whether the process was originally issued with malice and without probable cause. The remedy in that situation would be an action for malicious prosecution which was asserted in the case at bar. Here we have no abuse or coercive act subsequent to the issuance of the warrant. Although it be said that McAdams’ testimony confirmed an ulterior purpose in procuring the warrant, no coercive act followed such as existed by the writ of garnishment in Lewis v. Burdine, supra. Without the coercive distinction every action for malicious prosecution would include the tort of abuse of process. Certainly it cannot be said that the reclaiming of one’s own property, as in the case at bar, should be characterized as a subsequent act that constituted a perverted use of the warrant. We hold that the facts, when viewed most favorably to ap-pellee, do not support a submissible issue on abuse of process.

Reversed and remanded.


author: Carleton Harris, Chief Justice.

text:
    C. S. GAINER Jr. and Edna GAINER v. Lorena K. TUCKER, Administratrix of the Estate of Jim TUCKER
    73-122
    502 S.W. 2d 636
    Opinion delivered December 10, 1973

      Davis, Reed & Douglas, for appellants.

      Coffelt, Burrows ir Sawyer, for appellee.
   Carleton Harris, Chief Justice.

Jim Tucker, a licensed real estate broker in Arkansas, instituted suit in the Benton County Circuit Court against C. S. Gainer, jr. and Edna Gainer to enforce a $30,260 commission for the sale of 712 acres in Benton County. On April 11, 1967, an offer and acceptance contract was entered into between the buyer (Charles Seaney) obtained by Tucker, and C. S. Gainer, Jr. and Edna J. Gainer, appellants herein. The total purchase price for the property was $302,600, and the Gainers agree in the same offer and acceptance to pay Tucker $30,260 as his commission in obtaining the offer. The agreement provided that Seaney was to pay $35,000 in cash and the balance of $267,600 as follows: “$26,760 annually including 6% interest, first payment to be made twelve months from closing date of this agreement. Buyer reserves the right to pay more or all at any time and without penalty.” This offer and acceptance was made an exhibit to the complaint filed by Tucker. In the suit, it was admitted that $10,000 of the commission had been paid, leaving a balance due of $25,260. Also attached to the complaint was plaintiff’s Exhibit B, a letter dated June 9, 1967 as follows:

“Mr. Jim Tucker
205 West Walnut
Rogers, Arkansas 72756
Dear Mr. Tucker:
This letter will serve to acknowledge and set forth our agreement concerning the payment of a real estate commission due you for the sale of land owned by me to Mr. Charles Seaney.
The total commission is $30,260.00, of which you have received $10,000.00, leaving a balance due of $20,260.00 which is to be paid to you in three installments of $6,753.33 each, the first installment being due June 15, 1968, and a like installment due June 15, 1969 with the final installment of $6,753.34 being due on June 15, 1970.
Yours truly,
/s/ C. S. Gainer, Jr.
C. S. Gainer, Jr.
ACCEPTED:
/s/ Jim Tucker
Jim Tucker”

Appellants answered, asserting that except for certain fraudulent representations made by Tucker, the contract would never have been entered into by and between the parties. It was alleged inter alia that Tucker agreed to accept his commission, percentagewise, of the monies paid to the Gainers by Seaney as those payments were made to them; further, that if the Gainers would accept the small down payment offered by Seaney, Tucker would only require the Gainers to pay to him a 6% commission due on the down payment; still further, that if the transaction was not completed, i.e., Seaney did not pay the total purchase price set out previously, appellants would only owe to Tucker 6% of the monies paid to them on the purchase price. It was further alleged that Tucker received well in excess of the 6% monies due and owing him as a commission for the transaction. Appellants next asserted that Tucker guaranteed that Seaney was in substantially good financial condition, and that if payments were not made, he (Tucker) would guarantee such payments; that based upon the conditions mentioned, appellants entered into the contract. It was then asserted that Seaney became delinquent, failed and refused to make payments as they became due and that finally the property was reconveyed back to appellants by the purchaser Seaney. The prayer was that the complaint be dismissed. Subsequently, appellants filed a counter-claim, alleging an oral agreement which substantially followed the allegations set out in the answer, and asserted that Tucker had been paid $10,-000, though only due $5,980, and they sought a judgment against him for $6,020.00. Thereafter, interrogatories were propounded by the Gainers to Tucker, but the answers are not particularly pertinent to the question posed before us in this litigation. On February 18, 1972, Mr. Tucker passed away and the cause was revived in the name of his wife, Lorena K. Tucker, as Administratrix of his Estate. Subsequently, the Gainers filed a petition with the court, stating that Mr. Gainer wás in very bad health making it impossible for him to attend the trial of the case which had been set for December 27, 1972; that Gainer “has virtually all the knowledge in this cause of the defendants’ defenses” and it was requested that the cause be continued. The court then entered an order continuing the trial until February 16, 1973, and the order further provided:

“The defendants are to file in this cause within ten (10) days from this date an Affidavit for Continuance, and in the event the plaintiff admits that the defendants would testify to the facts in said Affidavit for Continuance by the defendants, the said cause shall be tried upon the facts presented by the plaintiff, the Affidavit of the defendants, and other testimony of the defendants on said 16th day of February, 1973.
“In the event the defendants desire to take the depositions of the defendant, C. S. Gainer, Jr., he shall give notice of the time of taking said depositions to the attorney for the plaintiff of the time and place of said depositions to be taken within five (5) days after the filing of the Affidavit for Continuance heretofore mentioned.”

Subsequently, the affidavit of Mr. Gainer was filed, pertinent portions of which read as follows:

“On the evening of April 11, 1967, Jim Tucker presented to me a form offer and acceptance dated April 11, 1967, signed by Charles Segney, which provided that Mr. Seaney would purchase certain lands of mine located in Benton County, Arkansas, for the total sum of $302,600.00, with $35,000.00 down and the balance in installment payments. This is the same offer and acceptance a copy of which is attached to the Complaint in this case with the exception that there were no provisions thereon for realtor’s fees. I assumed that there would be a reasonable realtor’s fee but terms and provisions would be for future discussion. Jim Tucker presented this agreement to Mrs. Edna J. Gainer, my wife, and me for signature. We refused at first to sign because of the small down payment provided, but then did sign upon the insistence or Jim Tucker and his repeated representations that Charles Seaney was financially capable, had financial connections with banks, otherwise was well able to complete purchase and development, and that Jim Tucker himself would secure background statements on Charles Seaney which would show this.”

As to the June 9 letter signed by Gainer, appellant stated:

“Mr. Tucker then prevailed upon my good nature further, and took me to the law office of Clayton Little in Bentonville, Arkansas, to sign an agreement. The letter agreement dated June 9, 1967, attached to plaintiff’s complaint was signed by us. It was signed by me only after Jim Tucker stated that he agreed to accept $10,000.00 and 10% total sums received on the purchase price thereafter, but I might or did need such a document for credit purposes. He knew at the time that he neither agreed to nor would pay the sums therein stated at the times therein stated with the exception of the initial $10,000.00, but misled me into signing such document on the basis of our oral agreement that I would pay 10% of sums received.’'

Thereafter, Requests for Admissions were submitted by appellee to Mr. Gainer, in which Gainer admitted that the letter written on June 9 was signed by him. He was also asked to admit that the balance had not been paid, to which he replied, “Admitted in form but denied as a proper balance.” Thereafter, appellee moved for a summary judgment, supporting the motion by the two exhibits heretofore mentioned and the answers to the Requests for Admissions. Gainer resubmitted his affidavit in support of his opposition to the motion and after submission of briefs, tíre court granted the summary judgment holding that there was no genuine issue as to any material fact, and specifically finding:

“7. That the purchasers and sellers entered into an Offer and Acceptance dated April 11, 1967 in which the defendants herein agreed to pay the plaintiff the sum of $30,260.00 real estate commission.
“8. That $10,000.00 of the commission was paid leaving a balance due of $20,260.00.
“9. That subsequent to the Offer and Acceptance signed on April 11, 1967, the defendant, C. S. Gainer, Jr. and the plaintiff entered into an agreement dated June 9, 1967, which acknowledged that the total commission due in the sale was $30,260.00 and provided that the balance due 'of $20,260.00 was to be paid in three installments of $6,753.53 each, the first installment being due on June 15, 1968 and a like installment being due June 15, 1969 with a final installment of $6,753.34 being due June 15, 1970. That this letter agreement was admitted as being signed by the defendant, C. S. Gainer, Jr. in his Answer to Request for Admissions filed in this cause. That the defendant further admitted that the balance of $20,260.00 had not been paid. ***
“12. That the court specifically finds that even assuming the facts as testified to in the affidavit to be true for the purpose of this hearing, that the testimony would be inadmissible at the trial of this cause. That in view of the ruling in the case of Bonds v. Littrell, 247 Ark. 577, 446 S.W. 2d 672 (1969), the court finds that the testimony would not be prohibited by the Parole Evidence Rule. However, it is the court’s ruling that the testimony contained in the affidavit filed in this cause would be testimony by a party against an administratrix and would therefore be prohibited by the ‘Dead Man’s Statute’, Arkansas Constitution, Schedule, Paragraph 2.”

Summary judgment was accordingly entered for appellee, and from such judgment, appellants bring this appeal. For reversal, it is asserted that material issues of fact existed and appellee was not entitled to judgment as a matter of law.

Of course, summary judgment is only proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Wilson, et al v. McDaniel, et al, 247 Ark. 1036, 449 S.W. 2d 944. The finding of the court that Gainer admitted the balance of $20,260 had not been paid is attacked by appellants as incorrect, it being pointed out that the answer actually given by Gainer was “Admitted in form but denied as to proper balance.” We find no merit in this argument for, like the trial court, we take this simply to have reference to the same contention made by Gainer in his affidavit, viz., that though he had signed the instrument reflecting that amount of indebtedness, the oral agreement between the parties prevented the amount from being correct.

The principal argument advanced by appellants is that the court erred in holding that the matters set out by Gainer in his affidavit as a defense would be prohibited by the “Dead Man’s Statute”, it being asserted that, in using the answers to the requests for admissions, appellee has waived the right to assert the contention of incompetency under the constitutional provision. In other words, having used to his own advantage certain statements made by Gainer, he cannot refuse the right to Gainer to use other portions. Cases are offered in support of this contention, but we need not discuss it under our view in this litigation.

The trial court held that parol evidence was admissible to show that the agreement was other than set out in the instrument — and this is normally true where fraud is alleged. In Hamburg Bank v. Jones, 202 Ark. 622, 151 S.W. 2d 990, we said:

“As to the alleged violation of the parole evidence rule, appellee testified very positively that appellant’s president called upon him at his office in Little Rock and secured his signature thereto by telling him that the bank would not look to him for payment, but to the collateral, consisting of preferred stock in the Jones Motor Company of Hamburg, and by writing him a letter to this effect, which letter was misplaced and not introduced. These were fraudulent misrepresentations, if made, and the jury by its verdict evidently believed they were. Were they admissible? We have many times held them to be competent where the issue of fraud in the procurement of the instrument is relied on. In St. L., I.M. & S. Ry. Co. v. Hambright, 87 Ark. 614, 113 S.W. 803, it was said: ‘The rule of evidence forbidding the addition, alteration or contradiction of a written instrument by parol testimony of antecedent and contemporaneous negotiations does not apply where there is an issue of fraud in the procurement of the writing.’ ”

See also Commercial Credit Company v. Childs, 199 Ark. 1073, 137 S.W. 2d 260. Numerous other decisions hold likewise. However, Gainer is not in a position to assert fraud, for under his own statement, he was a participant. In the early case of Evans v. Dravo, 24 Pa. 62, the Supreme Court of Pennsylvania held that a person cannot recover where it is necessary that he establish fraud to recover and such fraud includes partly his own actions. In the case cited, Evans desired to sell property to Gilpin for $500.00 though Evans valued the lot at $2,500. However, Evans wanted to sell to Gilpin because the lot would be used as a site for a rolling-mill which Evans felt would increase the value of adjoining property which he owned. The wife of Evans was not willing to sell for that price and Evans entered into an agreement whereby Dravo and three other persons executed a note to pay Evans $2,000. This was done purely as a matter of Evans having something to show his wife to leave the impression that he was going to receive a total of $2,500, for which amount she was willing to sell. Subsequently, Evans sued the four note-makers and their defense was that they were never supposed to pay the note, and, in their answer, alleged the fraud, but the court would not consider this evidence since they were parties to the fraud. Evans was allowed to recover, though he had acted fraudulently, because his recovery was not dependent upon his fraud, but rather established by the executed note that he held from defendants. The court, in explaining its logic, pointed out that one cannot be permitted to take advantage of his own wrong and that Dravo and the other note-signers were participating in a fraud on the wife. The court then said:

“But it is insisted that the plaintiff was in pari delicto, and that the maxims apply to him and his action as well as to the defendant. That he was party to the fraud practised on his wife is not to be doubted, since the verdict has established it; but if he needs no assistance from the fraud to make out his case, if he have a perfect cause of action without it, it is apprehended these maxims do not apply to him. *#* ‘If the plaintiff cannot open his case without showing that he has broken the law, the Court will not assist him, whatever his claim in justice may be upon the defendant.’ But we have seen that this plaintiff could not only open but prove his case without showing any infraction of law.”

Evans thus recovered, unaffected by the fraud, though he was a party to it — unaffected, because the suit was brought on the instrument.

The reasoning of the cited case is in accord with the Restatement of Restitution, § 140 (1937), p. 562, where it is stated that “a person may be prevented from obtaining restitution for a benefit because of his criminal or other wrongful conduct in connection with the transaction on which his claim is based.” It is pointed out in the comment that if equity would refuse to grant relief because of such conduct, a law court in which an action for restitution is brought, would also refuse to grant relief, since the action is equitable in nature.

Here, Gainer says that the letter he signed acknowledging that the total commission to Tucker was $30,260, that $10,000 had been paid, and that $20,260 was still to be paid, was not the actual agreement at all, but was only given because Tucker needed “such a document for credit purposes.” In other words, the letter, or more properly a note, was only for the purpose of enabling Tucker to enhance his credit, or perhaps borrow money from some lending institution that would thus be permitted to rely on an instrument, executed by Gainer, which was untrue and meant absolutely nothing. In our own case of Marshall v. Marshall, 227 Ark. 582, 300 S.W. 2d 933, Hubert Marshall contended that a deed, as to him, was actually a mortgage, but as to his creditors, was a valid deed. In determining that the instrument was a valid deed, this court said:

“In effect, he says that the instrument was a valid deed in so far as it affected his wife and creditors but as to him it was only a mortgage. Obviously, he was agreeable to perpetrating a fraud on both his wife and outside creditors. The instrument could not be part deed and part mortgage, it was either one or the other.
“Having concluded, as indicated, that the instrument in question was, in fact, in the circumstances a valid deed and not a mortgage, and that the ‘clean hands doctrine’ precludes appellee from claiming otherwise, the decree is reversed and the cause remanded for further proceedings consistent with this opinion.”

Likewise, in Anthony v. First National Bank, 244 Ark. 1015, 431 S.W. 2d 267, Anthony contended that a certain note which he had executed, but on which he asserted protection from liability by secret agreement, constituted a fraud. This court, rejecting the argument, said:

“Appellants also argue that replacing the overdraft of Garland Anthony Lumber Company with Garland Anthony’s note on which he was protected from liability by a secret agreement constituted a fraud, bringing into play the ‘clean hands’ maxim in his favor. If this constituted a fraud, appellants were not the ones defrauded, and Garland Anthony was a party to the fraud. It is also well settled that one guilty of traud in a transaction may not invoke the maxim as that would violate the clean hands principle. Sliman v. Moore, 198 Ark. 734, 131 S.W. 2d 1. Even if deception of bank examiners had been the only purpose of the note in question, this was as well known to Anthony as it was to Blewster, and tíie ‘clean hands’ defense would not be available to him.”

We have endeavored, from what has been said, to point out that Gainer’s defense to the execution of the note is not a valid one because to establish this defense, he must at the same time establish that he committed a wrongful and inequitable act. The fraud issue was raised by Gainer — not Tucker. The latter’s cause of action is not dependent upon a secret agreement that could cause injury to innocent persons. His cause is dependent simply upon the written instrument. Accordingly, conceding, without deciding, that the use of the answers to the requests for admissions by appellee waived the “Dead Man’s Statute” and Gainer’s affidavit should accordingly have been considered, this appellant still cannot prevail because of the reasons heretofore set out.

Finally, it is argued that no summary judgment should have been granted against Mrs. Gainer, and we agree with this contention. The affidavit of Mr. Gainer was signed only by him; likewise, Mrs. Gainer did not sign the letter (or note) of June 9, 1967 admitting the indebtedness to Tucker. In addition, the Requests for Admissions were only directed to Mr. Gainer, and Mrs. Gainer admitted nothing. Appellee devotes very little time to this point in his brief, stating only that Mrs. Gainer had executed the original Offer and Acceptance of April 11, 1967 and further:

“While it is admitted that Edna J. Gainer did not sign the letter agreement of June 9, 1967, it is apparent from his affidavit that Mr. Gainer handled all of the dealings for his wife in this transaction and acted accordingly as her agent throughout the entire transaction.”

Of course, Mrs. Gainer is not bound by the affidavit of Mr. Gainer, and there is nothing in the record from Mrs. Gainer to establish that her husband acted as her agent; as stated, there is no admission by appellant Edna Gainer that she executed any paper or document. The proof, as to her, was insufficient upon which to grant a summary judgment.

In accordance with what has been said, the judgment is affirmed as to Mr. Gainer, reversed as to Mrs. Gainer, and remanded to the Benton County Circuit Court with directions to proceed in a manner not inconsistent with this opinion.

      This obviously is a typographical error in the record and properly should be “he”. All parties, in the abstract and brief, treat the word as "he”.

      According to Gainer’s affidavit, although both Gainer and his wife signed the original agreement on April 11, the figure of the realtor’s fee was not inserted into that document until June 9, when Gainer also signed the letter acknowledging his indebtedness.


text:
    Ernest R. SULLINS v. THRIFT PLAN, Inc.
    73-160
    501 S.W. 2d 781
    Opinion delivered December 10, 1973

      Hodges, Hodges ¿r Hodges, for appellant.

      Erwin, Bowie &r Boyce, for appellee.
   Carleton Harris, Chief Justice.

Ernest R. Sullins (appellant herein), prior to October 9, 1969, lived in the small community of LaHarpe, Illinois, being employed by Fred Gibb Chevrolet, Inc. On the aforementioned date, pursuant to a written purchase money security agreement, Sullins purchased a new 1970 Chevrolet Impala from his employer, appellant having knowledge that the contract was assigned without recourse on the same day to Thrift Plan, Inc., appellee herein. Sullins made no down payment, the contract providing that the entire purchase price, including interest and amounting to $4,188.22, would be due and payable one year later, October 9, 1970. The agreement provided inter alia that the buyer would not sell, transfer, abandon, or encumber the vehicle, and that should the holder of the paper deem itself or said vehicle insecure, the full balance should become immediately due and payable without notice or demand and Thrift Plan, Inc. would be entitled to take possession of the automobile wherever found. Sullins operated the car from that date until the middle of March, 1970, at which time he terminated his employment and came to Arkansas, leaving the automobile with another Gibb Chevrolet salesman, Herb Fox, with certain instructions, hereinafter discussed. Subsequently, appellee learned that the automobile had been left with Fox, and it was repossessed by it, notice being given to appellant by certified mail on September 11, 1970 of the repossession and advising that the car would be sold pursuant to the Uniform Commercial Code unless Sullins paid for the automobile within ten days. No payment being made, appellee advertised the public sale in a Burlington, Iowa newspaper, but being unable to sell the automobile at said sale, the car was subsequently sold by private sale to the aforementioned Herb Fox for $2,500, resulting in a deficiency to the company of $1,686.62. Thrift Plan, Inc. instituted suit in the Jackson County, Arkansas Circuit Court for the deficiency, and Sullins counterclaimed for damages, totaling $9,988.22. Appellee moved for a summary judgment on this counter-claim in its favor, which was granted, and Thrift Plan, Inc. then dismissed its cause of action against Sullins, who has appealed the granting of the summary judgment on his counter-claim. Though three points are asserted by appellant, all relate to whether the granting of the summary judgment was proper under the facts, hereinafter related.

After the joining of the issues, interrogatories were submitted by Sullins to the company seeking the names of those to testify and a narrative summary of the testimony to be given by these witnesses at the trial of the cause. The names were listed in the response, together with their purported testimony, reflecting that Robert W. Berry, manager of the company store at West Burlington, Iowa, would testify that in Mid-March of 1970, Fox had advised Berry that the automobile purchased by Sul-lins had been left at the Gibb Chevrolet Company with instructions that it be sold, and Sullins had further told Fox that he would be willing to take a loss in order to get rid of the automobile; since the contract prohibited the sale of the car by Sullins, Berry took the automobile into possession so that it could be sold by appellee; no suitable buyer was found, i.e., one that would make a bid approaching the amount of the indebtedness. On September 11, the company notified Sullins that it was going to sell the car and not hearing from him, it did make the sale to Fox on September 24, 1970 after taking three bids, and determining that $2,500 was the highest, leaving a balance due on the automobile of $1,686.62.

Further answering, appellee stated that Bruce Ecker-man, a resident of Des Moines, Iowa, would testify that sometime during the summer of 1970, Sullins went to the Thrift Plan, Inc. office in Burlington, demanding possession of the car, but refused to pay for it, and possession was accordingly denied. Answers to further interrogatories revealed that the car had been repossessed at LaHarpe on approximately May 1, 1970. The answer to the final interrogatory set out that while payment for the car was not due until October 9, 1970, the agreement calling for it to be paid for in a one lump sum payment, the company upon learning that Sullins had left his employment at Gibb Chevrolet, had left the state after leaving the car for sale, deemed itself and the car to be insecure, and it thus considered the balance to be immediately due and payable.

It is not clear whether the answers were considered by the court in granting its summary judgment, several of the replies, of course, being improper and inadmissible, viz., those that deal with what other people would testify to. In Organized Security Life v. Munyon, 247 Ark. 449, 446 S.W. 2d 233, this court said:

"It must be affirmatively shown, or appear from statements contained in any affidavit supporting or opposing a summary judgment, that it is based upon personal knowledge of the affiant, that the facts stated therein would be admissible in evidence and that the affiant is a witness competent to state these facts in evidence.”

Thereafter, appellee submitted Requests for Admissions to Sullins, some of which were admitted, and others denied. Denials which appear particularly pertinent as to whether summary judgment should be granted are as follows:

“Request (22) Admit that you instructed Fred Gibb to sell said automobile for you.
RESPONSE: Denied in the form of the request since I left the automobile with Fred Gibbs under the instruction to obtain an offer in a sufficient amount to pay off the contract to Thrift Plan, Inc., but not to violate any of the terms of the contract.
Request (23) Admit that you instructed Fred Gibbs to sell said automobile, if necessary, for a loss.
RESPONSE: Denied.
Request (24) Admit that you gave no notice to plaintiff of your intention to leave LaHarpe, Illinois.
RESPONSE: Denied in the form of the request. ***
Request (40) Admit that the plaintiff used commer-ciable reasonableness in the aforesaid sale of said automobile.
RESPONSE: Denied.”

Thereafter, appellee moved for summary judgment, chiefly relying upon the answers given to the Requests for Admissions. In his response to the motion, Sullins asserted that nowhere in his response did he admit a violation of the terms of the contract; that he never sold, abandoned, transferred or encumbered the vehicle, and he specifically denied that he left the vehicle with Herb Fox with instructions to sell and dispose of same as reflected by his answer to Request (22). This response was supported by his own affidavit wherein he stated that he had left the Chevrolet with Herb Fox with instructions to obtain an offer or purchase in a sufficient amount to pay off the contract at Thrift Plan, Inc., “not to sell and dispose of vehicle.” He stated that he contacted Fox Frequently and inquired regarding offers concerning the vehicle; further, that he returned to LaHarpe with intentions to obtain the automobile and keep it, and discovered that it had been taken by the manager of Thrift Plan, Inc. The affidavit closed with the following paragraph:

“When I left said automobile, Bob Berry, Manager of Thrift Plan, Inc., had full knowledge of the facts that the car was left with Herb Fox so that he might obtain offers to purchase. Bob Berry never voiced any objections whatsoever to these arrangements.”

Subsequently, appellant served Requests for Admissions of facts on appellee, these not being answered, and the record reflecting that an extension of time until March 15, 1973 was granted within which to respond. No response to the requests, however, was filed, and appellant asserts that they should be considered as admitted. Appel-lee states that since, after the summary judgment was granted, it dismissed its complaint seeking a deficiency judgment, the question becomes moot because the facts requested to be admitted, if admitted, would only go to the reduction of appellee’s deficiency claim. This does not necessarily follow.

Appellee, in its argument, calls attention to the fact that the contract expressly provided that Sullins could not sell, transfer, abandon, or encumber the automobile, and that should the company consider itself or the automobile insecure, it would be entitled to take possession of the car; it thus contended that Thrift Plan, Inc. was justified in repossessing the Chevrolet under the admitted factual situation, even though the lump sum purchase price and interest were not due and payable until October 9, 1970. Further, from the brief:

“It should be remembered that the appellant was employed by the seller, and the employment factor was obviously the reason for the liberal terms of the purchase contract since the appellant paid nothing' down on the purchase price, which, together with interest, was not made due and payable until one year later. Further, the appellant drove and had the use and benefit of the automobile in excess of five months, and he has never paid one cent on the purchase price. Without any notice to the appellee, the appellant terminated his employment with Fred Gibb Chevrolet, Inc., and left the state, having left the automobile with Herb Fox, a salesman for Fred Gibb Chevrolet, Inc., with instructions for the apparent sale thereof — even at a loss!”

Let it be remembered, however, that this litigation involves a summary judgment and the object of the procedure in such a case is not to determine an issue, but rather to determine whether there is an issue to be tried; to dispose of litigation on motion only when facts are not disputed and the law can be applied to them. Ashley v. Eisele, 247 Ark. 281, 446 S.W. 2d 76. Let us compare appellee’s argument with appellant’s responses to the Requests for Admissions. To Request (6), “Admit that prior to October 9, 1969, you informed your employer that you desired to buy a new car from it”, the answer was, “Denied in the form presented in this Request.” Request (7), “Admit that your employer arranged for you to purchase a new car” was answered, “Denied in the form presented in this Request.” There is nothing in the record which sets out as uncontroverted that the employment factor was obviously the reason for the liberal terms of the purchase contract. The statement that appellant terminated his employment with the Gibb Chevrolet Company without notice to appellee is disputed, Sullins stating in his affidavit that Berry, Manager of Thrift Plan, Inc. had full knowledge that the car was left with Fox so that he might obtain offers to purchase, and that Berry never voiced any objections to the arrangement.

It is argued by appellee that the matters mentioned, together with the fact that the automobile had depreciated in value due to time and use, and appellant had nothing invested in the automobile, clearly gave it the right to take possession of the vehicle in order to preserve and protect its security. Ark. Stat. Ann. § 85-1-203 (Add. 1961) provides that every contract or duty within the Uniform Commercial Code imposes an obligation of good faith in its performance or enforcement. Here, therefore, for a summary judgment to be justified, it must be definite and obvious that no fact question is involved as to whether appellee acted in good faith in repossessing the automobile, i.e., acted in good faith at the time it was taken.

We cannot agree that the record makes that fact so clear that it can be said, as a matter of law, that this was established. There are several matters which, we think, indicate this to be a jury question. Let if first be remembered that the car was taken several months prior to the due date of the note from Sullins. Next, it is denied by appellant that he left the car to be sold. Additionally, in his affidavit, he stated that Berry knew that the car was left with Fox in order to obtain offers of purchase and that Berry voiced no objections to such arrangement.

The Requests for Admissions, relating to use of the automobile after repossession, were never answered, ap-pellee obtaining an extension of time until March 15, 1973 within which to respond. The record only further reflects appellant’s motion filed on March 22 asking the court that the facts stated in the Requests for Admissions be deemed admitted. No order of the court appears and the motion for summary judgment was heard the next day, and judgment subsequently filed on March 29. Appel-lee, in its brief, gives its reasons why these requests were not answered, but, of course, not being a part of the record, such information cannot be considered.

Nor does the court’s order reflect whether the Requests for Admissions were considered by the court.

At any rate, we think factual issues were raised, and the granting of the summary judgment was erroneous.

Reversed and remanded.

      The names “Gibb” and "Gibbs” are both used in the record and abstract.

      From the record:
      “(1) Admit that Robert W. Berry, agent and branch manager of Thrift Plan, Inc. obtained possession of the 1970 Chevrolet owned by Ernest R. Sullins from Fred Gibb Chevrolet Company within two weeks after it was left in the possession of Fred Gibb Chevrolet Company by Ernest R. Sullins.
      (2) Admit that Robert W. Berry drove said Chevrolet to Denver, Colorado, while he was on vacation after obtaining possession of said automobile.
      (3) Admit that Robert W. Berry loaned said Chevrolet to Carl Ward, Denmark, Iowa while Robert W. Berry used Carl Ward’s pick-up truck during July, 1970.
      (4) Admit that at the time said Chevrolet was loaned to Carl Ward, there was more than 11,000 miles on said car.
      (5) Admit that Robert W. Berry used said Chevrolet for personal use during the day and night.
      (6) Admit that Robert W. Berry was having marital difficulties during this period of time, and that he used said Chevrolet while dating and going to nightclubs.
      (7) Admit that Wayne Lee’s speed shop, Burlington, Iowa, reduced the number of miles shown on the odometer by approximately 5,000 to 8,000 miles at the direction of Robert W. Berry.
      (8) Admit that all of the above incidents took place prior to notifying Ernest R. Sullins that the car had been repossessed by Robert W. Berry, agent and branch manager of Thrift Plan, Inc.”

      Another interesting fact is that in answering the interrogatories, Berry indicates in his reply to Interrogatory No. 1 that the car was repossessed in Mid-March, though in his reply to Interrogatory No. 2, he states that the car was repossessed in late April or around May 1, 1970. Berry also stated that he would testify that between May 1 and July 21, the car was kept at the office of Thrift Plan, Inc. in Burlington, Iowa, during the day and was driven home for “safekeeping” at night by Berry, and this same procedure was followed during July, August and September. This fact could well, particularly when taken in connection with the Requests for Admissions served upon Berry, raise a fact question as to whether the automobile was repossessed for security purposes, or perhaps repossessed for the personal benefit of Berry.


author: George Rose Smith, Justice.

text:
    Paul D. PEEVY v. Donald BELL
    73-161
    501 S.W. 2d 767
    Opinion delivered December 10, 1973

      Davis, Reed & Douglas, P.A., for appellant.

      Pearson & Woodruff, for appellee.
   George Rose Smith, Justice.

The appellant, in a single point for reversal, contends that the trial judge erred in admitting into evidence certain oral testimony in violation of the parol evidence rule.

In 1971 the two parties entered into a written contract by which Peevy sold to Bell, for $5,000, "the Tandy Homes Franchise” for Springdale and the surrounding area. Some five months later Bell brought this action for breach of contract. Bell asserts that under the agreement Peevv was to assign to Bell three existing contracts for the construction of Tandy homes, upon which (according to Peevy’s representations) Bell would make a profit of about $2,500 each. Bell alleges a breach of contract, in that he did not receive the three contracts. The case was submitted to a jury, which awarded Bell $3,500 damages.

Opposing counsel are not really in disagreement about the law. The parol evidence rule excludes oral testimony that would contradict or vary the terms of a written contract, but the rule does not preclude an oral explanation of an ambiguity in the agreement. Kerby v. Feild, 183 Ark. 714, 38 S.W. 2d 308 (1931). The question here is whether the parties’ written contract is so ambiguous as to be open to explanation under the rule.

We have no doubt that it is. The effective language in the agreement simply recites that Peevy sells to Bell “the Tandy Homes Franchise” in the Springdale area. There is not one additional syllable in the instrument explaining either what a Tandy home is or what the franchise consists of. It was therefore necessary for the litigants to explain to the jury (without objection) that Tandy Homes are prefabricated or pre-cut structures built with materials that are sold exclusively by a Tulsa, Oklahoma, company. It was also necessary for the jury to be told that the “franchise” vests in its holder the sole right to purchase Tandy components and erect Tandy homes in the franchised area.

According to the testimony, the Tandy franchise carried with it the three existing contracts held by Peevy. Bell, the purchaser, testified that Peevy said “the franchise consisted of [the] sole right to purchase from Tandy Homes for the area and to use their advertising, and it also included all existing contracts which he had, to build Tandy Homes, and since I would be franchise dealer, there is no way anyone else could build those homes.”

Peevy’s testimony is actually to the same effect, as will be seen from this excerpt from his direct examination:

Q. Did you make any agreement to let Mr. Bell have these contracts?
A. Yes, I told Mr. Bell he could have them, because I couldn’t use them.
Q. Would you explain that?
A. Well, they were no earthly good to me, really, if I couldn’t buy the material from Southern Mills, which is like I say, a subsidiary of Tandy. . . .

Later in his direct examination Peevy said, in response to a leading question, that he did not offer the three contracts as an inducement to the sale. “I only sold the franchise to him. I didn’t sell him any contracts.”

In substance Peevy contends that the parol evidence rule allows the parties to show what a Tandy home is and to show that the holder of the franchise has the exclusive right to buy Tandy materials, but the rule does not allow oral proof of the additional and related fact that the transfer of the franchise carries with it outstanding contracts that were concededly of no further value to the transferor. The trial judge was right in rejecting that contention. In view of the testimony the meaning of the contract was a jury question. Triska v. Savage, 219 Ark. 80, 239 S.W. 2d 1018 (1951).

Affirmed.


author: Lyle Brown, Justice.

text:
    Sherwood Frank STRAUSER a/k/a Harris R. REED v. STATE of Arkansas
    CR 73-119
    501 S.W. 2d 780
    Opinion delivered December 10, 1973

      /. W. Steinsiek, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant’s petition for a Rule I hearing was denied under Rule I (C), the court holding that the records of the case conclusively showed petitioner was entitled to no relief. Appellant’s points for reversal are that (1) he was arrested without a warrant, that (2) he was not given the Miranda warnings prior to interrogation, that (3) he was threatened by the prosecuting attorney, and that (4) the State failed to set bond.

In disposing of the petition under Rule I (C) the court considered several items of record: information, criminal docket sheet, amendment to information, petition for dismissal of charge, testimony of appellant on motion to dismiss, testimony of officers Richardson and Causey on motion to dismiss, testimony of officer Richardson at trial, and the testimony of appellant at an in camera hearing. We shall refer to a number of those items in disposing of the points for reversal.

Appellant was accused of fraudulently obtaining lodging and services at a Blytheville motel. He was also charged with being a fourth offender. He was returned to Blythe-ville from West Memphis, tried, and given two years.

Point I. Appellant was arrested without a warrant. At the hearing on his motion to dismiss the charges, appellant conceded that he was acquainted with the charges filed against him and that he knew that fact at the time he was arrested. Officer Richardson testified that when he arrested appellant at West Memphis (the appellant there using the name of Harris R. Reed), the officer had a warrant, that he read the instrument to appellant, and told him the nature of the charges. That warrant was issued by the Blytheville Municipal Court. Officer Caus-ey testified that when the charges were filed in circuit court, another warrant was issued and served on appellant.

Point II. Appellant was not given the Miranda warnings prior to interrogation. Officer Richardson testified that when appellant was arrested, appellant started talking without being questioned. “I personally advised him of his constitutional rights before he started saying anything that might incriminate him.” Furthermore, no incriminating statements charged to the appellant were ever introduced.

Point III. Appellant was threatened by the prosecuting attorney. Appellant said he was taken to the office of the deputy prosecuting attorney and was there threatened. “[He] told me what he was going to do to me at the trial.” There is not one scintilla of evidence that any such threat caused appellant to make an admission against interest, nor is there any evidence to show that any such threat caused appellant to take any other action adverse to his interest.

Point IV. The State failed to set bail for appellant's release pending trial. Nowhere in the record is it shown that appellant or his attorney ever mentioned bail until the pre-trial hearing, which was shortly before the trial. Appellant did not offer to show that he was able to make bail; in fact he qualified as a pauper. Additionally, the failure to set bail is no ground for reversal of the conviction. Small v. City of Little Rock, 253 Ark. 7, 484 S.W. 2d 81 (1972).

Affirmed.

Fogleman, J., not participating.


author: John A. Fogleman, Justice.

text:
    Ronnie Dale WEST and Gary Lynn WEST v. STATE of Arkansas
    CR 73-118
    501 S.W. 2d 771
    Opinion delivered December 10. 1973

      McArthur & Lofton, for appellants.

      Jim Guy Tucker, Atty. Gen., by: Philip M. Wilson, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellants Ronnie West and Gary West were convicted by a jury and sentenced to life imprisonment for the rape of a twenty-year-old woman. They raise the following points for reversal:

I. The trial court erred in refusing to allow appellants to pursue the source of the information gained by the Sheriff’s Office leading them to suspect the appellants and in refusing to require the identity of the informant to be made known.
II. The trial court erred in ruling that the picture displays shown to the prosecuting witnesses were fair, and in ruling that there was probable cause for the arrest of appellants.
III. The trial court erred in refusing to allow a defense witness to testify as to the findings of his investigation concerning two persons in possession of a truck identical to one described by the prosecuting witnesses and who had been suspects in this case.
IV. The trial court created prejudicial error by cross-examining a defense witness in a manner that impugned his credibility.

The prosecuting witness testified that on November 22, 1972, at approximately 11:00 p.m., while she and a male companion were in an automobile parked near a construction site, a pickup truck containing three men pulled in front of the vehicle she and her escort were occupying. She said two of the individuals, who she identified as appellants Ronnie and Gary West, got out of the truck and approached the car. She stated the two men said they were security guards for the construction company and ordered the victim and her companion to get out of their vehicle to be searched. She related that one of the men produced a knife, that her companion was knocked unconscious and that she was raped by both Gary and Ronnie West, aided by the third man.

Since we find reversible error on Point IV, we will treat it first. As their final witness at the trial, appellants called Officer Gary Stracener, Jacksonville Police Department, to testify concerning an investigation he had made to locate a pickup truck which matched the description given to sheriff’s officers by the victim and her escort. On direct examination, Stracener said a pickup truck which fit this description, belonging to Kenneth Smith, had been reported by Smith as stolen on November 29, 1972. He testified the truck was later recovered in the possession of Raymond Raynard and Jerry Maxie, one of whom was related to Smith, and that charges against the two were dropped. The following colloquy then ensued:

Q All right. James, did you, did you look into James Raymond Raynard and the Maxie boy any further?
A Yes, I did.
Q What did your investigation reveal?
A I found that on June 18th, 1972, there was a warrant issued by—
THE COURT:
(Interposing) Just a minute. Does that have anything to do with this case?
MR. McARTHUR: [Defense Counsel]
It has something to do with the individuals that he’s talking about, Your Honor. I think it is referable to this case.
MR. MAZZANTI [Deputy Prosecuting Attorney]
Your Honor, those individuals are not on trial here today.
MR. McARTHUR:
That’s exactly my point.
THE COURT:
How many trucks like that are there in this county?
A I don’t know offhand, Your Honor.
THE COURT:
How much were you paid to come up with this information?
MR. McARTHUR:
Your Honor, I object to this. I’ll tell you, but I will object to it. I think the Court is interfering in the case at this point and I would ask for a mistrial.
THE COURT:
Denied.
MR. McARTHUR:
He’s been paid nothing, if the Court wishes to know.
THE COURT:
Do you do this as a Jacksonville Police Officer?
A No, sir, I don’t. I retired from investigating.

It is well established that the trial court may, in the interest of justice, direct questions to a witness calculated to elicit the truth concerning the subject matter being investigated, if they are carefully framed in a manner not indicative of any opinion on the merits of the controversy. New v. State, 99 Ark. 142, 137 S.W. 564. The trial court has some discretion in examining witnesses to clarify their testimony, and when no prejudice appears there is no abuse of that discretion. Miller v. State, 250 Ark. 199, 464 S.W. 2d 594; Clubb v. State, 230 Ark. 688, 326 S.W. 2d 816. However, appellants are correct in their contention that the questioning by the trial judge in this case reflected on the credibility of the witness and the weight to be given his testimony.

In a jury trial there is probably no factor that makes a more indelible impression on a juror than the attitudes, statements and opinions of the trial judge. To them, his word is the law. McMillan v. State, 229 Ark. 249, 314 S.W. 2d 483. The trial judge should always preside with impartiality and must be cautious and circumspect in his language for it is the jury that is the sole judge of the facts and the credibility of witnesses. Fechheimer-Kiefer Co. v. Kempner, 116 Ark. 482, 173 S.W. 179; Sharp v. State, 51 Ark. 147, 10 S.W. 228, 14 Am. St. Rep. 27. Because of his influence with the jury, remarks by the trial judge may tend to prejudice a litigant by destroying the weight and credibility of testimony in his behalf in the minds of the jury. Although the judge may not intend to give an undue advantage to one party, his influence may quite likely produce that result. Fuller v. State, 217 Ark. 679, 232 S.W. 2d 988; Seale v. State, 240 Ark. 466, 400 S.W. 2d 269; McMillan v. State, supra.

The prohibition in Art. 7, Sec. 23, of the Arkansas Constitution that “judges shall not charge juries with regard to matters of fact” is as applicable to remarks going to the credibility of a witness and the weight to be given his testimony as it is to the truth or falsity of what the witness said. St. Louis S. W. Ry. Co. v. Britton, 107 Ark. 158, 154 S.W. 215; Fuller v. State, supra. Any expression of opinion by the trial judge as to the credibility of a witness would tend to deprive the parties of the full benefit of the judgment of the jury, unbiased by the opinion of judges. Fechheimer-Kiefer Co. v. Kempner, supra. We have said that a judge should not even intimate an opinion as to the credibility of a witness. Sharp v. State, supra. This stricture applies not only to what judges tell juries in formal instructions but also to what they say in col-loquys in the jury’s hearing. Fuller v. State, supra. Even though we are confident that the judge in this case had no intention of invading the province of the jury in its evaluation of Stracener’s credibility and weighing his testimony, the question “How much were you paid to come up with this information?” could only have the effect of intimating that the trial judge believed the witness’ testimony was of questionable value.

Appellant’s counsel did not ask the court for an instruction admonishing the jury not to consider any remarks made by the trial judge as reflecting on whether a witness’ testimony should be believed. The failure to request such an instruction is not significant in this case because such an instruction could not have cured the prejudice to appellants.

We have held that the trial judge has wide discretion in granting or denying a motion for a mistrial, and that we will not reverse a judgment because of his action on such a motion in the absence of an abuse of discretion or manifest prejudice to the complaining party. Perez v. State, 249 Ark. 1111, 463 S.W. 2d 394; Shroeder v. Johnson, 234 Ark. 443, 352 S.W. 2d 570. While we recognize that no prejudice was intended, the question could only be calculated to damage appellants’ attempt to show that someone else might have committed the crime, therefore, the conviction must be reversed. The failure to grant appellants’ motion for a mistrial in this case did result in manifest prejudice to appellants because of the influential position occupied by the trial judge, and the virtual inevitability of the jury’s according great weight to the strong intimation by the judge that the credibility of Stracener was questionable.

Since this case will be remanded for a new trial, we deal with appellants’ other contentions, because they will probably again arise.

Appellants’ Point I is without merit. The state’s privilege to refuse to disclose the identity of informants, the so-called “informer’s privilege,” exists to further the public interest in effective law enforcement by preserving the anonymity of those citizens who provide law enforcement officials with information pertaining to criminal activity. Roviaro v. United States, 353 U.S. 53, 77 S. Ct. 623, 1 L. Ed. 2d 639 (1957). The privilege is not an absolute one, but is rather qualified by the facts and circumstances of each particular case. Davis v. Kirby, Judge, 244 Ark. 142, 424 S.W. 2d 149. In a given situation there must be a balancing of the public interest in protecting sources of information against the individual’s right to adequately prepare his defense. Roviaro v. United States, supra. Among the factors to be considered in determining whether nondisclosure was erroneous are: the crime with which the defendant is charged, possible defenses, the possible significance of the informer’s testimony and other relevant factors. Rugendorf v. United States, 376 U.S. 528, 84 S. Ct. 825, 11 L. Ed. 2d 887 (1964); Roviaro v. United States, supra; Davis v. Kirby, Judge, supra.

Often, determination whether disclosure is required is ultimately made upon the basis of whether the informant was present or participated in the alleged illegal act with which the defendant is charged or whether the informer merely furnished information concerning criminal activity to law enforcement officers. Roviaro v. United States, supra. See Bennett v. State, 252 Ark. 128, 477 S.W. 2d 497. This distinction, which is not always conclusive, is important because the testimony of an informant who is also a witness may well be the sole means of amplification, modification or contradiction of the testimony of prosecution witnesses and is therefore essential to the preparation of an adequate defense. Officer Reeder of the Pulaski County Sheriff’s Department testified the informant in this case was not a participant or an eyewitness to the crime with which appellants are charged. The informant’s tip caused sheriff’s officers to have the victim and her companion view two photographic showups from which they identified appellants. There is no evidence that the informant possessed any knowledge of the crime which was vital to the preparation of appellants’ defense. Appellants’ failure to show the existence of any facts or circumstances which would require the identity of the person who supplied sheriff’s officers with the lead connecting appellants to this crime to be disclosed is fatal to their contention here. Rugendorf v. United States, supra; Roviaro v. United States, supra; Davis v. Kirby, Judge, supra.

We find no error in the trial court’s ruling challenged in Point II. Appellants do not challenge the validity of the photographic showup from which appellant Ronnie West’s picture was identified. Only the procedure used in showing the group of pictures containing Gary West’s photograph to the victim and her escort is challenged. Officer Reeder testified he showed pictures of twelve men to the victim’s male companion and later showed the same pictures to the victim and that both identified appellant Gary West. Reeder said two pictures of four individuals, including Gary West, appeared in the group. Appellant alleges the pictures of him were in sequence and contends the fact that his picture appeared twice made the showup patently unfair. We disagree. Neither the victim nor her companion was told that Gary West’s picture appeared twice. Two pictures of three other individuals appeared in the group. Thus, the showup group contained pictures of twelve men, four of whom were pictured twice. The only evidence regarding the sequence of pictures was the testimony of Officer Reeder that the pictures were not arranged in any particular manner. Furthermore, both the victim and her escort later identified Gary West in a police lineup and at the trial. When a photographic identification is followed by an eyewitness identification at trial, the conviction will be set aside only if the photographic showup was so suggestive as to create a substantial possibility of irreparable misidentification. King v. State, 253 Ark. 614, 487 S.W. 2d 596; Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). We do not find the procedure here impermissibly suggestive.

Appellants also contend there was no probable cause for the arrest of appellant Ronnie West with a warrant and for the arrest of appellant Gary West without a warrant. They allege the only probable cause was supplied by the "tip” of an unknown informer who had never before provided the sheriff’s office with any leads and that therefore there was not sufficient probable cause for the arrests. Appellant Gary West was already in custody on another charge at the time this charge was filed against him. He was not arrested without a warrant. Even if it may be conceded that the filing of charges against Gary West was tantamount to arrest, his contention is untenable.

Before charges were filed against Gary West there were four factors from which probable cause for charging him might be found, and there were three factors bearing upon probable cause for the issuance of a warrant for the arrest of Ronnie West. First, the victim and her escort had provided officers with a description of the two attackers which fit the Wests; second, the officers had received a tip that the Wests were connected with the crime; third, the victim and her companion identified both the Wests from photographic showups; and fourth, Gary West was identified in a lineup by the victim and her companion. Appellants’ contention that a lead coming from an informer who had never before provided officers with a tip cannot supply probable cause is without merit. Simply because the informant’s reliability could not be tested on the basis of his previous aid to officers, the sheriff’s office was not required to ignore any information the informant provided. Ford v. State, 249 Ark. 695, 460 S.W. 2d 749. The informant’s tip together with the description given to officers and the identification of both the Wests provided adequate probable cause for their arrest.

Even if appellants could establish that an illegal arrest had occurred, they stand to gain nothing. We have ruled that even if a person were arrested illegally, he is not entitled to release if he is guilty, and there is no assertion that any evidence obtained as a result of the illegal arrest was used against him. Cassady v. State, 249 Ark. 1040, 463 S.W. 2d 96; Perkins v. City of Little Rock, 232 Ark. 739, 339 S.W. 2d 859. Appellants here have been found guilty and have raised no contention that any evidence used against them resulted from the alleged illegal arrest, unless it was the lineup identification of Gary West, but, as we have pointed out, he was already in custody.

Appellants’ Point III contention is that the trial court erred in refusing to allow Officer Stracener to testify as to findings of his investigation concerning two other possible suspects. We find no error. Stracener testified without objection that a truck which matched the description given the sheriff’s officers belonged to Kenneth Smith, a relative of one of the possible suspects, that Smith had reported the truck as stolen, that the truck was later recovered in the possession of Raymond Raynard and Jerry Maxie, alleged possible suspects, and that charges against these two were later dropped because Smith said they had permission to use the truck. Thus all the evidence relating to the pickup truck was admitted.

Objections were made and sustained to further testimony by Stracener in an attempt to show that warrants had at one time been issued for Raynard and Maxie in connection with this charge and that his investigation had revealed other information about these two men. The trial court was correct in ruling that testimony relating to the warrants was not admissible, since there was no evidence that Raynard and Maxie were guilty of this crime, but only that they had been charged. Killiam v. State, 184 Ark. 239, 42 S.W. 2d 12. As to any other matters that Stracener’s investigation uncovered, there was no offer to show what his testimony would have been, and, consequently, we are unable to say that prejudicial error occurred. Hawkins v. State, 225 Ark. 519, 267 S.W. 2d 1; Wooten v. State, 220 Ark. 755, 249 S.W. 2d 968; Baldwin v. State, 119 Ark. 518, 178 S.W. 409.

The cause is reversed and remanded for a new trial.


author: J. Fred Jones, Justice.

text:
    EQUIPMENT SUPPLY COMPANY v. Claud Austin SMITH, d/b/a SMITH TIRE COMPANY and McCREARY TIRE AND RUBBER COMPANY v. FRIEND TIRE SERVICE, Inc.
    73-110
    502 S.W. 2d 467
    Opinion delivered December 10, 1973
    [Rehearing denied January 14, 1974.]

      Putman, Davis & Bassett, for appellant.

      Warner, Warner, Ragon ir Smith and Jones & Segers, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Equipment Supply Company from an adverse judgment entered on a jury verdict in a suit filed by Equipment Supply against Claud Austin Smith, d/b/a Smith Tire Company, and McCreary Tire and Rubber Company. Smith cross-complained against McCreary and made Friend Tire Service, Inc. a third party defendant.

Equipment Supply Company was a domestic corporation with headquarters in Springdale, Arkansas, and T. J. Neff was its president and general manager. Equipment Supply owned and operated several motor tractor-trailer rigs in hauling produce interstate. Claud Austin Smith did business as Smith Tire Company in Spring-dale, and sold truck tires including McCreary brand tires. McCreary Tire and Rubber Company was a corporation domiciled in Pennsylvania and manufactured McCreary tires at its plant in that state. It distributed its tires through wholesale outlets in the various states but had no distributor in Arkansas. Friend Tire Service was domiciled in Missouri. It distributed the McCreary tires through its store in that state and Smith purchased Mc-Creary tires from Friend.

In October, 1969, Equipment Supply purchased ten McCreary tires from Smith and mounted two of them on the front, or steering axle, wheels of one of its trucks. On September 11, 1970, after the truck had been driven approximately 70,000 miles, the right front tire blew out causing the truck to leave the highway and resulting in considerable damage to the truck and trailer as well as to its cargo of frozen fish.

Equipment Supply filed suit against Smith and Mc-Creary on express and implied warranties alleging that Smith had expressly warranted the tires as being suitable for over the road use on trucks and trailers, and impliedly warranted that they were of merchantable quality and fit for the ordinary purpose for which they were sold. Equipment Supply further alleged that Smith and McCreary knew the purpose for which the tires were to be used and that Equipment Supply relied upon their skill and judgment in furnishing suitable tires for the known purpose.

By answers, counterclaims, cross-complaints and answers thereto, the issues were finally joined with Equipment Supply praying damages against Smith and Mc-Creary; with Smith praying judgment against McCreary for any amount adjudged against Smith; with McCreary praying judgment against Smith for contribution on any amount adjudged against McCreary; with Smith praying judgment against Friend for any amount adjudged against Smith on implied warranty, and with Friend praying judgment over against McCreary for any amount adjudged against Friend in favor of Smith.

The trial court granted summary judgments for Smith and Friend as to the alleged express warranties but denied their motions for summary judgments as to implied warranties, and the case proceeded to trial on implied warranties. At the close of the plaintiff’s evidence, the trial court granted motions by Smith and Friend for directed verdicts and the cause against Mc-Creary was submitted to the jury. The jury rendered its verdict in favor of McCreary and judgment was entered thereon. On appeal to this court Equipment Supply designated the points it relies on for reversal as follows:

“The trial court erred in directing a verdict for the defendant and cross-appellant, Claud Austin Smith, d/b/a Smith Tire Company.
A. Implied Warranty of Merchantability.
B. Implied Warranty of Fitness for a Particular Purpose.
The trial court erred in limiting the proof of consequential damages pertaining to lost profits to the sum of $3,500.00.
The trial court erred in submitting a special interrogatory to the jury requiring a finding that the defendant McCreary Tire and Rubber Company defectively manufactured the tire in question.”

Equipment Supply’s first assignment has given us the most difficulty but having resolved that point in favor of Smith, it follows that under the facts and the evidence of record, the trial court did not commit reversible error on the other two points designated. The express warranties alleged in the original complaint filed by Equipment Supply were disposed of on summary judgment and there is no appeal from that disposition. Implied warranties are controlled by the Uniform Commercial Code on Sales, Ark. Stat. Ann. §§ 85-2-101, et seq., and in so far as it applies to the case at bar, §§ 85-2-314 — 85-2-315 (Add. 1961) provides as follows:

“§ 85-2-314-(l) Unless excluded or modified ... a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind. * * *
(2) Goods to be merchantable must be at least such as
(a) pass without objection in the trade under the contract description; and
(b) in the case of fungible goods, are of fair average quality within the description; and
(c) are fit for the ordinary purposes for which such goods are used; * * *
(3) Unless excluded or modified . . . other implied warranties may arise from course of dealing or usage of trade.
§ 85-2-315 Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods, there is unless excluded or modified under the next section an implied warranty that the goods shall be fit for such pulpóse.”

In Smith’s cross-complaint against McCreary and in McCreary’s answer and counterclaim against Smith, they both alleged that if they were liable in damages, it would be caused by the defalcation or the negligence of the other.

Equipment Supply propounded to McCreary 28 interrogatories pertaining to the degree of care exercised in the manufacture of McCreary tires.

Mr. Smith was first called by Equipment Supply as an adverse witness. In regard to the tire in question, he testified that Mr. Neff called him and inquired as to what he had in 1000 x 22 tires. He said he told Mr. Neff he had some General and McCreary tires, and after he quoted the price on the two brands, Mr. Neff said he had previously used McCreary tires which had given satisfactory service and he would take the McCreary tires. He said that the tires purchased by Mr. Neff (as distinguished from lug type drive wheel tires) were designed for use on the front end of the vehicle or wherever Neff would want to use them. He said he was familiar with Mr. Neff’s operation in using his trucks on long hauls and knew, in this particular instance, that Mr. Neff intended to use the tires on the front or steering axle wheels of his trucks. He said the normal mileage one could reasonably expect from a 1000 x 22 truck tire, when used on the front or steering axle of the vehicle, would vary between drivers and with the condition of the highway and equipment, but when properly cared for, such tire should run on the steering axle wheels from 30 to 70 or 75,000 miles. He said that in the trucking industry, after tires are used on the front, or steering axle, wheels, they are usually transferred to the dual wheels on the trailer where considerably more mileage can be expected from them. Mr. Smith estimated that more than 50% of the tread had been worn from the tire when he examined it following the accident. He said that any normal tire would be subject to failure after having been driven on the steering axle 70 or 75,000 miles. Mr. Smith said he purchased the McCreary tires from Friend Tire Company and that he dealt with Friend like Neff dealt with him; that he simply asked for the tire by brand name and had no literature, pamphlets or anything else from Friend or McCreary. He said that the particular tire involved in this case was not a specifically designed tire for any particular purpose, but was simply a common highway type truck tire that could be used anywhere.

Mr. Neff, the president and general manager of Equipment Supply, next testified in support of his company’s complaint. He testified that he is engaged in trucking commodities interstate and intrastate and has been involved in the trucking industry as driver, manager or lessee for a period of 24 to 25 years. He said he had been buying tires from Smith for some time and quite often, when he would need tires, he would call Smith and indicate what type of tire he needed, whether for steer axle or drive axle and Mr. Smith would tell him what he had available and what price they would be. He said that on this particular occasion when he purchased the McCreary tires, he was quite sure Mr. Smith referred to the McCreary and possibly to the General tires as the two brands he had in stock, and that Smith told him what the prices on the two brands would be. He then said:

“I didn’t make note of what the Generals could have been at that particular time but it was my election, then, that he had these available and I had probably ten others in service. They would suit our need.”

Mr. Neff testified that if a truck was driving perfectly, a tire could be used on the front or sterring axle until the tread was worn to seven or eight, thirty-seconds of tread depth. He said the tread depth on the tire involved would have been twenty-two, thirty-seconds when it was new and that when he measured the tread depth after the accident, in the only possible area left for measurement, it measured twelve, thirty-seconds. Mr. Neff testified that he would expect to get at least 150,000 miles out of a tire and on this point he testified as follows:

“Q. Mr. Neff, what was your practice in regard to steer axle tires?
A. We would pull those tires at sometime near half-worn — anywhere from eight, thirty-seconds up, depending on the condition of the tire, and move it to the trailer.
Q. And then what would you do?
A. The tire would run on out, then, and until it had in the area of two to four, thirty-seconds tread depth on it, and then we’d send it down and have it recapped.
Q. All right, sir.
A. And expect then another fifty to sixty thousand miles after recap.”

Mr. Neff testified on recall that prior to the purchase of the ten tires from Mr. Smith, he had used 20 or 30 McCreary tires on his trucks. He said he simply purchased the tires from Mr. Smith and installed them on the wheels himself. He then testified that Mr. Smith had nothing to do with the transaction other than to sell him the tires. He said the ten tires he purchased from Smith were the highway type of tires he ordered and were the type tires for the use he intended to put them. He then testified as follows:

"Q. Now, I take it from your testimony here, as well as your counsel’s, Mr. Bassett’s opening statement that your position in this lawsuit is that there was a defect in this particular tire that was caused during the manufacture of the tire; is that right?
A. Yes.
Q. So it was nothing that Mr. Smith did or did not do in connection with the tire, as far as you know?
A. That’s correct.”

Mr. Neff said he purchased the ten tires from Smith in October, 1969; that his inventory and records reflect he placed the specific tire involved on his truck in March, 1970, and drove the unit with the tire on the front axle some 70,000 miles plus, up until the accident which occurred in September, 1970.

Mr. H. E. Maxey, a chemist, testified as an expert for Equipment Supply. He said he examined the remainder of the tire after the accident and the pertinent portion of his testimony appears in the record as follows:

“Q. Now, Mr. Maxey, following your inspection and investigation of this tire failure, did you arrive at an opinion as to what had happened?
A. Yes, sir.
Q. What is that opinion; tell the Court and jury.
A. Well, it is my opinion that the tread on this tire (pointing to Plaintiff’s Exhibit No. 3 to Smith) came loose in this area and as it rolled on the truck and as it flexed, ... in the normal use of it. . . . You had friction set up between the tire, the carcass, and this tread. . . . and it generated sufficient heat to break down the nylon and also to break down the rubber. ... it blew out at that place.
Q. All right, sir. ... do you have an opinion as to what caused the friction, the heat between the tread and the carcass, as you have described for the jury? . . .
A. Yes.
Q. And what is that opinion?
A. The tread came loose from the carcass because it wasn’t put on the carcass properly or substantially, and the rubbing started and it disintegrated.
# # *
A. . . . Now, when this tread is put on . . . the carcass is built, the tread is put on the carcass through heat and pressure. Now, if this carcass has a little dust on it — if it has a little moisture on it, if it has any impurity on it that would interfere with the rubber on the carcass or interfere with the bonding, then you are going to have a weak spot in the bonding of the tread to the carcass, much like patching the old innertube many years ago. You had to clean the tube very well in order to get the patch to stick on it, and if the carcass has a dirty spot on it or anything to interfere, you are not going to get a good bond with the tread. In my opinion, that is probably what happened here. * * *
It’s my opinion that the tread was not properly bonded or substantially bonded to the carcass at the time of manufacture.”

The substance of expert testimony offered by Mc-Creary was to the effect that the tire was properly manufactured and the blowout occurred because of wear and road damage to the tire. Mr. Lee Mason, who drove the truck approximately 7 or 8,000 miles on the last two trips immediately before the tire blew out, testified that he knew of no road damage to the tire and that he had no prior knowledge of any defect in the tire or the steering mechanism on the truck until the tire blew out.

Instruction No. IB, given by the court, pertained to the form of verdict and was as follows:

“The form of the verdict in this case is by Interrogatories, as follows:
Do you find by a preponderance of the evidence that McCreary Tire and Rubber Company, Inc. defectively manufactured Tire No. KY0112 which proximately caused the damage to plaintiff.
Answer ‘yes’ or ‘no.’
Sign (blank) as foreman.
If your answer is ‘no,’ you have decided the case. If your answer is ‘yes,’ then answer this Interrogatory:
What do you find by a preponderance of the evidence the plaintiff should recover for the following elements of damages:
1. Damage to Tractor $-.
2. Damage to Lufkin Trailer $-.
3. Damage to Fish Cargo $-.
4. Loss of Profits During Period Tractor was Down Being Repaired $-
5. All Other Incidental Expense Reasonably Resulting from Collision $-.
Signed (blank) as foreman.”

There was no objection to the form of the verdict, although there were objections to other instructions given. After all of the instructions were given, the trial court inquired as to whether there were any further objections and Equipment Supply’s attorney answered in the negative.

In his argument to the jury, Equipment Supply’s attorney stated:

“I told you at the beginning that this is not a suit against the McCreary Tire and Rubber Company for negligence, whereby we have alleged fault and responsibility. This suit, Ladies and Gentlemen, is a suit for a breach of implied warranty.
# # #
Now, we have the burden of proof — proving what caused it to fail. Our testimony shows in this particular case, expert testimony and other testimony, that this tire failed because of an improper bonding at the manufacturing source. In other words, there was a defect in the manufacturing.”

It is apparent from the overall evidence in the record that the implied warranties both as to merchantability and fitness for purpose were met in this case, and certainly there is no substantial evidence that they were not. The evidence is clear, both from the testimony of Mr. Neff and Mr. Smith, that the tire was purchased by Neff and sold by Smith by brand name, and that Mr. Neff relied on his own judgment and not on that of Mr. Smith or McCreary in purchasing the tire. The testimony of both Mr. Neff and Mr. Smith was to the effect that the McCreary tire involved in this case was simply an ordinary truck tire manufactured for road use either on the front or steering axle of the truck or on the truck trailer. Mr. Smith admitted that he knew Mr. Neff intended to u&e the tires on the front, or steering axle, wheels in this particular instance but, assuming that these tires were specifically designed and sold for use on the steering axle wheels of the truck, there is no substantial evidence in this case that the tire did not fully comply with such intended use. Both Mr. Neff and Mr. Smith testified that when approximately one-half of the tread was worn from steering axle tires, they would be subject to failure and should be switched to a dual wheel position on the trailer. It was also their testimony that a front or steer axle tire would ordinarily reach this point of wear after approximately 70,000 miles. According to Mr. Smith the tread was more than half worn from the tire and according to Mr. Neff the tire had run more than 70,000 miles and, according to his measurement of the remaining tread on the shoulder of the tire, the tread lacked only one thirty-second of being half worn away. We conclude, therefore, that there was no substantial evidence that implied warranties of merchantability or use for intended purpose were breached in this case.

In support of its assignment of error under its first point, Equipment Supply argues that if the tire was defective from any cause, Smith sold a defective tire and his motion for a directed verdict should not have been granted. Equipment Supply did only allege breach of warranties, but Smith’s cross-complaint also alleged negligence and the case throughout was tried on the theory that McCreary failed to properly bond the tread of the tire to the carcass in manufacturing the tire. As already pointed out, the implied warranties of merchantability and fitness for a particular purpose (use on the steering axle) had been fulfilled at the time the tire failed and there was no evidence that Equipment Supply relied on the skill and judgment of Smith or McCreary in the selection or furnishing of the tire. Consequently, it would only follow that McCreary as well as Smith might have been entitled to a directed verdict on implied warranties, had it not been for the evidence of McCreary’s failure to properly manufacture the tire. There was no suggestion in the evidence that Smith was negligent in any respect or that he had anything to do with the manufacture of the tire. The case, however, was submitted to the jury against McCreary on implied warranties as well as negligence in the manufacture of the tire, and the jury found for McCreary on both counts. We are of the opinion, therefore, that under the facts and evidence in this case, the court did not commit reversible error in directing a verdict in favor of Smith.

In Smith v. Goble, 248 Ark. 415, 452 S.W. 2d 336, an automobile driven by Goble crossed the center line of the highway and collided with one driven by Smith. Smith sued Goble on negligence and Goble interpleaded White County Motor Company as seller and Ford Motor Company as manufacturer on alleged breaches of warranties. Smith amended his pleadings also asking damages against White Motor Company and Ford. The trial court directed a verdict in favor of White Motor Company and the jury found in favor of Ford but returned a verdict for Smith against Goble. Smith appealed on the grounds, among others, that the court erred in not instructing a verdict against Ford on the existence of a breach of warranty, and in directing a verdict for White County Motor Company. The evidence was to the effect that it would require a complete disassembly of the brake system to determine the exact cause of brake failure, and in affirming the trial court we said:

“Any error the court may have committed in dismissing White County Motor Company is now harmless and does not constitute reversible error. The evidence, above, is not sufficient to show any negligence on the part of White County Motor Company. See 8 Am. Jur. 2d Automobiles § 650 and 60 C.J.S. Motor Vehicles § 165(5). Furthermore, since the jury has exonerated Ford Motor Company for an alleged manufacturing defect that appellant’s expert witness admits was latent and could not have been discovered without a complete disassembly of the right front wheel brake, appellant is now estopped to complain against White County Motor Company on a derivative liability upon the theory of an implied warranty. See Davis v. Perryman, 225 Ark. 963, 286 S.W. 2d 944 (1956).”

Appellants cite the case of Mack Trucks v. Jet Asphalt, Et Al., 246 Ark. 101, 437 S.W. 2d 459. In that case Jet Asphalt obtained judgment for $5,000 against Mack Trucks for breach of implied warranty of fitness on two diesel truck engines. The appeal was based on the question of venue, lack of privity and limitations on express warranties. The judgment was based on implied warranties and we affirmed. The distinction between that case and the case at bar is that in Mack Trucks the purchase was made on special order after the purchaser had specified the work to be performed by the trucks in the operation of a gravel and asphalt plant. Diesel engines were specifically required by the purchaser. The trucks were built and diesel engines were installed by the manufacturer after the order for them had been given by the purchaser. It was necessary for the purchaser to discard the diesel engines furnished with the trucks and have new engines installed.

The appellants rely on our decision in DeLamar Motor Co. v. White, 249 Ark. 708, 460 S.W. 2d 802. In that case White brought suit in chancery to cancel a contract under which he had purchased a Chevrolet diesel truck from DeLamar Motor Company. White relied upon breach of warranty that the vehicle was fit for the purpose for which it was to be used. The contract was canceled by the chancellor and on appeal we affirmed. The evidence in that case was that the engine vibrated excessively and the brakes did not function properly. DeLamar contended that the defect complained of was the fault of the manufacturer and that the seller was not responsible, but we rejected this argument under the provisions of § 85-2-315, supra. The distinguishing facts in the DeLamar Motor Co. case are stated in that opinion as follows:

“At the time of the sale White told the seller that he intended to use the truck to pull a gasoline transport and to pull a lowboy. He also stated that Mr. De-Lamar ‘said it would do the job, and I had no reason to doubt it.’ On cross examination White admitted that when he bought the truck he thought that it would do the job he wanted it to do. That belief, however, did not negate the warranty. Any purchaser ordinarily expects the article being bought to serve its purpose, else he would not buy it. It does not follow, however, that the purchaser may not also be relying upon the seller’s judgment in the matter. Here White testified that he had not previously owned a Chevrolet diesel truck.”

We found from the record in that case that the chancellor was justified in finding that White did rely upon DeLa-mar to select a vehicle capable of doing the job White had in mind for it, and we found that the chancellor’s decision was not against the weight of the evidence.

As to- the appellants’ second point, the trial court’s limitation of proof of consequential damages in lost profits to the sum of $3,500, arose in connection with an argument between the parties pertaining to insurance Equipment Supply collected in connection with the loss, and the assigned error becomes moot in the light of the decision we have reached that the case should be affirmed.

As to the third point relied on by Equipment Supply, there was no substantial evidence that implied warranties had been violated in this case; consequently, there was nothing left to go to the jury except the evidence on which the entire case was primarily tried; that is, whether Mc-Creary Tire and Rubber Company defectively manufactured the tire in question. We conclude, therefore, that the trial court did not err in submitting the special interrogatories to the jury on this point. As already stated, however, Equipment Supply did not object to this action of the trial court even after the court specifically inquired whether or not there were additional objections.

The judgment is affirmed.