author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Johnnie Lee CHISUM v. STATE of Arkansas
    CR 80-213
    616 S.W. 2d 728
    Supreme Court of Arkansas
    Opinion delivered May 26, 1981
    [Rehearing denied June 29, 1981.]

      Gardner & Gardner; for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Between 7:00 . and 8:00 on the morning of April 9, 1978, Roger Rackley was shot in the chest while he was in a garage in the home of the appellant’s sister, Alta Garrison, at Hector in Pope county. An ambulance was summoned at once, but Rackley died before he could be taken to a hospital. The appellant, Johnnie Lee Chisum, was charged wth second degree murder committed with a firearm and was found guilty of manslaughter committed with a firearm. In appealing from a verdict and judgment sentencing him to confinement for 14 years he argues five points for reversal.

Certain basic facts are not in dispute. Mrs. Garrison, with two other women, was at home when Chisum and Rackley came to the house at about 7:00 a.m. The two men had been drinking and were arguing with each other. After a while both men went into the garage through a connecting door, which one of the women locked behind them. None of the women testified to having heard a shot. In about 15 minutes, however, Chisum beat on a different door, was admitted, and said: “I need help. Roger has been shot.” Rackley was found lying in the garage with a bullet wound in his chest. An ambulance and the police arrived shortly, but Rackley lived only a few minutes.

Two state policemen and the sheriff took a statement from Chisum, at the scene. They testified at a Denno hearing that Chisum was warned of his rights before he signed a waiver form. They realized Chisum had been drinking, but they testified he was capable of making a statement and did so. In the oral statement, as later narrated to the jury, Chisum said that he and Rackley had been up all night. They had ridden around together and done some drinking. At one point they went to Rackley’s house to get two shotguns, to go hunting. They wound up at Alta Garrison’s house, where they went in, took off their boots, and drank coffee. Later they went out on the back steps and were putting on their shoes when, Chisum said, he got hit and heard a shot. Chisum said he looked at Rackley and realized that something was wrong. He picked up “the gun” and carried it out to Rackley’s pickup truck. He also said Rackley had in his belt in the house a gun that belonged to Chisum’s father. He also said they were scuffling, and Rackley shot himself.

In addition to the three officers, one of the women testified at the Denno hearing that Chisum seemed calm: “I do not feel like he was drunk.” An attorney who had been called by Chisum’s father talked to Chisum a little later at the courthouse. As a defense witness he testified: “I never could get him to tell me what occurred. He didn’t — he said, ‘I don’t know.’ He would shake his head. T just don’t know. I don’t remember.’ ” The attorney said that Chisum was incoherent and “evidently had no memory at all of the events of the night before or that morning either.” Chisum himself testified at the Denno hearing that he was drunk when he talked to the officers and did not remember what he told them. He did not testify before the jury.

Chisum first argues that we should set aside the trial judge’s finding that Chisum’s statement, which did not amount to a confession, was voluntary. Although we make an independent determination of the voluntariness of such a statement, we do not set aside the trial judge’s finding unless it is clearly against the preponderance of the evidence. Degler v. State, 257 Ark. 388, 517 S.W. 2d 515(1974). In our independent review we recognize the trial judge’s superior position in determining matters of credibility. Whitmore v. State, 263 Ark. 419, 426, 565 S.W. 2d 133 (1978).

Here the trial judge’s decision was not clearly erroneous. Chisum’s statement itself shows that he remembered many of the pertinent events. His recollection is corroborated by other witnesses with respect to what happened after he reached his sister’s house. The three officers thought he was able to make a statement. The State’s fourth witness, who was the only Denno witness to see Chisum both before and after the crime, did not think he was drunk. Chisum’s statements to the attorney could well have been motivated by self-interest, as he seems to have remembered things quite well up until the fatal shot and then suffered a complete cessation of memory. On this point reversible error is not shown.

Second, it is argued that there were deficiencies in the prosecution’s chain of custody of certain exhibits: A knife that Rackley had, the pistol used in the shooting, four live and three spent pistol cartridges, and a mutilated slug taken from Rackley’s body at the autopsy. Two possible witnesses, Peyton and Carlton, did not testify, but the trial judge concluded before admitting the exhibits into evidence that even if the chain was not completely unbroken the proof was sufficient to identify the articles.

We find no abuse of discretion. Wickliffe & Scott v. State, 258 Ark. 544, 527 S.W. 2d 640(1975). The jury was free to consider any omissions in weighing the testimony as a whole. The important point is that, although the State’s case was circumstantial, the omissions did not affect vital matters. The State showed that two men who had been arguing heatedly went into the garage together, alone, and within a few minutes one of them was shot and killed. Chisum put the gun in a truck, where the officers recovered it. Trace metal tests indicated that Chisum had carried the gun against his stomach under his belt and had held it in his hand. A similar test at the autopsy indicated that Rackley had not held the gun or carried it in his belt. The slug taken from the body was so damaged that it could not be traced to a particular pistol. Thus the identity of the pistol, of the cartridges, or of the slug was not an essential element in the State’s case, as a fingerprint or blood sample might be in some other situation. The trial judge’s preliminary ruling, admitting the exhibits, was right.

Third, it is argued that the sheriff and his secretary should not have been permitted to narrate statements made by Mrs. Garrison to the sheriff during his investigation of the case. The statements had not been signed by her, but the principal one had been read back to her and acknowledged to be correct. Those matters, however, went only to the weight of the evidence, because the statements were unquestionably admissible for the purpose of impeachment whether she had acknowledged their accuracy or not.

We observe at the outset that the prosecution was mistaken in offering the statements as recorded recollections under Uniform Evidence Rule 803 (5), Ark. Stat. Ann. § 28-1001 (Repl. 1979). That section of Rule 803 merely recognizes the common law rule permitting a witness to use a contemporaneously made memorandum when, as we have quoted, “the witness is totally lacking in present recollection and cannot revive it by stimulation, but there was a time when he did have a sufficient recollection and when it was recorded.” St. Louis S.W. Ry. v. White Sewing Machine Co., 78 Ark. 1, 93 S.W. 58, 8 Ann. Cas. 208 (1906). Instances of the proper application of Rule 803 (5) would include the testimony of a witness who bought an appliance and wrote down its serial number or who had a traffic collision and wrote down the other motorist’s license number. Mrs. Garrison’s detailed accounts to the sheriff were not within the rule.

Even so, we will not reverse a trial judge’s ruling, even though he gave the wrong reason, if the ruling was right. Moose v. Gregory, 267 Ark. 86, 590 S.W. 2d 662 (1979); Reeves v. Ark. La. Gas Co., 239 Ark. 646, 391 S.W. 2d 13 (1965). That is the situation here, because the statements were admissible for impeachment, as inconsistent out-of-court statements made by Mrs. Garrison. Such statements have long been admissible at common law and are admissible under Uniform Evidence Rule 613, provided the witness is first given an opportunity to explain or deny the statements. Reynolds v. State, 254 Ark. 1007, 497 S.W. 2d 275 (1973); Thomas v. State, 72 Ark. 582, 82 S.W. 2d 202 (1904). In Thomas we also recognized the rule, preserved in Uniform Evidence Rule 607, that the State may impeach its own witness.

It was formerly our rule that inconsistent statements were admissible only for impeachment and not as substantive evidence. Comer v. State, 222 Ark. 156, 257 S.W. 2d 564 (1953). That limitation has now been abolished entirely in civil cases and has been similarly abolished in criminal cases when the prior statement was given under oath and subject to the penalty of perjury. Uniform Evidence Rule 801 (d)(1). The common law rule was not otherwise changed by the Uniform Rules and still prevails in criminal cases when the prior statement was not under oath. Field, A Code of Evidence for Arkansas?, 29 Ark. L. Rev. 1 (1975); United States v. Ragghianti, 560 F. 2d 1376 (9th Cir. 1977), construing Federal Evidence Rule 801 (d) (1), after which the state Uniform Rule was patterned.

Here the prior statements were clearly admissible, even though Mrs. Garrison professed to have forgotten what she had told the sheriff. In effect she testified to nothing that was unfavorable to her brother. She did say that when Chisum first came back in the house he said: “I need help. Roger has been shot.” She could not, however, remember any of her statements to the sheriff that implicated Chisum in the shooting, even though the prosecutor went beyond the minimum requirement and allowed her to read the prior statements before asking her about them. She could not remember having asked Johnnie, “Why? Why?”, nor his reply, “Well, it was either him or me.” She could not remember his having a pistol in his hand after the shooting and saying, “This is what did it.” She testified, to the contrary, that she did not know what he had in his hand. She also said that she did not remember Johnnie’s having said anything to her when he came back in.

Thus her testimony, unimpeached, would have suggested to the jury that when her brother came back in the house he did not have the pistol, he made no explanation of the shooting, inculpatory or otherwise, and in fact he said practically nothing at all. That she professed not to remember what she had said to the sheriff did not preclude the prosecution from using her prior inconsistent statements. In an almost identical case, where a witness sought to shield his brother by saying that he did not remember his own prior statement, we held the statement to be admissible. Billings v. State, 52 Ark. 303, 12 S.W. 574 (1889). Our statute was then similar to Uniform Rule 613, requiring that the witness first be questioned about the alleged inconsistent statement. We held that the statement was admissible despite the witness’s asserted lack of memory. Justice Hemingway’s reasoning is so compelling and so peculiarly applicable to the present case that we quote his words:

The statute does not place the right to impeach a witness by proof of contradictory statements, upon the condition of his denial. It requires his cross-examination upon the matter; nothing more. This is exacted in order that he may explain apparent contradictions and reconcile seeming conflicts and inconsistencies. If he cannot remember the fact, he is unable to do what the law affords him the opportunity to do. If he cannot remember the statement made, it is quite as probable that his recollection of the occurrence about which he testifies is inaccurate or incorrect. If contradiction properly affects the value of his testimony when he denies, it is difficult to see why it should not when he ignores the contradictory or inconsistent statements. The testimony is discredited because he affirms today what he denied yesterday; the legitimate effect of such contradiction cannot depend upon his power to remember it. If the defect in the memory is real, the proof of the contradiction apprises the jury of this infirmity of the witness; if he has made a false statement under the pretense of not remembering, he should not escape contradiction and exposure. We think the evidence was properly admitted.

We again applied the rule in Humpolak v. State, 175 Ark. 786, 300 S.W. 2d 426 (1927).

In the court below defense counsel’s only objection to the proffered statements was that they were hearsay. True, but they were nevertheless admissible for impeachment. When evidence is admissible for one purpose but not for another, an objection is wholly unavailing unless the objecting party asks the court to limit the evidence to its admissible purpose. City of Springdale v. Weathers, 241 Ark. 772, 410 S.W. 2d 754 (1967); Shipp v. State, 241 Ark. 120, 406 S.W. 2d 361 (1966); see Uniform Evidence Rule 105. AMCI 202 is a limiting instruction covering this precise situation; doubtless the trial court would have given it if requested to do so. There was no such request. We find no basis for reversal on this point.

The two remaining arguments may be considered together. An autopsy was performed, but Dr. Carlton, the physician in charge, did not testify. He was assisted by the witness Moreland, who described how they opened the body and observed the track of the bullet, which entered both the heart and the liver. Moreland’s testimony is objected to on the ground that he was not qualified as an expert. He testified, however, that he had assisted at 500 post mortems and had performed 300 trace metal tests. The trial judge has discretion in determining the competency of an expert witness. Smith v. State, 243 Ark. 12, 418 S.W. 2d 627 (1967). Similarly, whether the qualifications of an expert witness with respect to knowledge and special experience have been established rests largely within the trial judge’s discretion. Firemen’s Ins. Co. v. Little, 189 Ark. 640, 74 S.W. 2d 777 (1934). Here Moreland’s extensive practical experience in observing and assisting with autopsies qualified him to describe what he saw.

As to the cause of death, it was not necessary for the State to call an expert to testify that the gunshot killed Rackley. Jurors are not required to lay aside their common knowledge and experience. AMCI 103. Proof that Rackley died minutes after he was shot by a bullet that entered his heart was amply sufficient to prove the cause of his death.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. The first prejudicial error made in this case was the admission into evidence of the statement of the appellant. It is elementary that the burden is upon the state to demonstrate that a statement made while in custody was freely and voluntarily given. Clark v. State, 264 Ark. 630, 573 S.W. 2d 622 (1978). The statement was made a short time after the appellant was taken into custody. His Miranda rights were allegedly read to him while he was still at the scene of the shooting. The officer who gave him his Miranda warnings subsequently stated:

He appeared to know what his faculties was. Quite obviously he was drinking. I could smell alcohol on his breath. I think the defendant understood his rights and every question I asked him.

The county sheriff stated that appellant appeared to be very nervous, that he could tell from his observations of the appellant that he had been drinking but nevertheless, in his opinion, appellant could understand the rights that Lieutenant Duvall gave him. The third officer involved stated that he knew Chisum had been drinking from the odor of alcohol and from his nervousness. He further stated that he thought Chisum was under the influence of alcohol so much that he should not have been allowed to drive an automobile. He stated further that he was not staggering and his speech was not slurred.

During the time in which these three officers talked with the appellant there was no one else around. At first it was the appellant and Duvall and later they were joined by the other officers. All three officers, who obviously have an interest in the outcome of the case, indicated the appellant had been drinking. In fact, the breathalyzer indicated that he tested .14 at 10:30 or 11:00 a.m. following his having been taken into custody at 8:00 or 8:30 that morning. I think we can assume he had hot had anything additional to drink during the time he was in the custody of the officers. While he was being held in custody, an attorney appeared at the request of the appellant’s father. When the attorney appeared, the officers were running a trace metal test on the appellant and the attorney asked the appellant not to say anything and he asked them not to ask any more questions. The attorney stated he did not know that the appellant had given a statement to the officers, and they did not tell him that they had taken one. In his opinion, the appellant could not give a voluntary and intelligent statement because he was drunk. According to the lawyer, the appellant had a very definite odor of alcohol about his person, his speech was slurred, and he could not get him to tell what had happened. The lawyer further testified that the appellant was incoherent and evidently had no memory at all of any events which had happened the evening before and on the date in question up until the time the lawyer observed the appellant. The appellant was later questioned about the incident and he could not remember talking to Lieutenant Duvall. He could only remember talking to one officer but he did not know who it was. It seems to me that the preponderance of the evidence clearly shows the statement was not voluntarily and intelligently given and should have been excluded. It was a useless thing for the state to insist on presenting such statement when the evidence was otherwise more than adequate to obtain the conviction.

The second error I find in this case was the admission into the record of statements given by witness Alta Garrison. The statements had allegedly been made in the presence of the sheriff and his secretary at the time of the initial investigation. The statements had not been signed by the witness. In fact, when she was asked about the statements, she stated she did not remember them. I agree with the majority that the statements were not admissible under Uniform Evidence Rule 803 (5), Ark. Stat. Ann. § 28-1001 (Repl. 1979). It is wrong to affirm the trial court when it committed error by allowing evidence to be admitted for an improper purpose. Although the same evidence may have been properly admitted under different circumstances, in this case the other circumstances never arose. There certainly is no precedent for the trial court or this court to complete the state’s cases for it when it fails to do so. I do not want to be a part of starting such a practice.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    CLOVERLEAF DEVELOPMENT, INC. v. Robert L. PROVENCE et ux
    81-8
    616 S.W. 2d 16
    Supreme Court of Arkansas
    Opinion delivered May 26, 1981

      Jones & Segers, for appellant.

      Mills & Baugus, for appellees.
   Frank Holt, Justice.

This appeal results from the chancellor’s granting summary judgment in favor of appel-lees, ruling that the discharge in bankruptcy of their debt, scheduled as unsecured, was res judicata and barred a foreclosure action.

Appellees borrowed $18,283-35 from the appellant and executed a mortgage in December, of 1977 to secure their note for this amount. A first mortgage on the property in favor of Farm Home Administration was already in existence. Appellant did not file its mortgage. Approximately one year later, appellees filed a voluntary petition, in bankruptcy and listed their debt to appellant as unsecured. Also listed was the mortgaged real estate, which appellant claimed, and was approved, as being exempt as their homestead pursuant to Art. 9, §§ 3 and 4, Arkansas Constitution (1874). Appellant filed a response to the petition asserting the validity of the mortgage and requesting the debt not be discharged on the exempt real property.

Appellant filed its mortgage on January 31, 1979, the same day the bankruptcy judge signéd the order approving the trustee’s report exempting the claimed homestead property and abandonment of that property as part of the bankrupt’s estate. On May 4, appellant filed this action in chancery court to foreclose on the mortgage. One week later, May 11, the scheduled unsecured debts of the appellees, including the one in issue, were ordered discharged by the bankruptcy court. Appellees pleaded, and the chancellor agreed, the bankruptcy proceeding was a complete bar to this foreclosure action. The sole issue on appeal is the effect of the discharge in the bankruptcy proceedings upon the appellant’s right to thereafter foreclose its mortgage on exempt property. Stated another way, whether the setting aside of the real property as being exempt and the subsequent discharge of personal liability on the underlying debt bars the enforcement of the provisions of the appellees’ mortgage to appellant.

It is true, as appellant asserts, that an unrecorded mortgage is good and binding as between the parties and constitutes a valid lien on the property except as to the legal rights of third parties. Morgan v. Kendrick, 91 Ark. 394, 121 S.W. 278 (1909); Shuffield v. Raney, 226 Ark. 3, 287 S.W. 2d 588 (1956); and Western Tire & Timber Company v. Campbell, 113 Ark. 570, 169 S.W. 253 (1914). Thus, the debt here, although scheduled in bankruptcy as unsecured as against the trustee and general creditors, was the basis of a lien that is valid as between the parties.

However, appellees contend the Order of Discharge, when no stay of the proceedings was sought or issued, included discharge of the debt and, therefore, the decision of the bankruptcy court is res judicata. Consequently, appellant’s action to enforce the terms of the mortgage constitutes a collateral attack on that order. We must disagree. The great weight of authority supports the rule stated in Collier on Bankruptcy, § 17.29 (14th Ed. 1978):

... A discharge, being personal in character, releases the bankrupt’s personal liability only. It follows, therefore, that a valid lien on property of the bankrupt existing at the time of the adjudication in bankruptcy, which is not avoided by the Bankruptcy Act, may be enforced notwithstanding the discharge of the bankrupt. ...

See also 9 Am. Jur. 2d Bankruptcy, § 270 (1980).

This is the rule that has been followed in Arkansas. In Gray v. Bank of Hartford, 137 Ark. 232, 208 S.W. 302(1918), cert. den. 249 U.S. 608 (1919), this court held that “[a] discharge protects a bankrupt from further personal liabilty but does not affect valid and subsisting liens.” See also Hutchinson v. First Nat. Bank of Lepanto, 156 Ark. 142, 246 S.W. 484 (1922).

Under the bankruptcy code in effect at the time this petition in bankruptcy was filed, all claims against exempted property were determined in state courts, being outside the jurisdiction of the bankruptcy court as not constituting any part of the assets in bankruptcy. Collier, supra, §§ 6.05, 6.12. See also Bush v. Shepherd, 205 P. 2d 842 (Ore. 1949). In Gray v. Bank of Hartford, supra, we held:

... The designation and setting aside of property as exempt to a bankrupt in a proceeding in bankruptcy does not, and can not, affect valid and subsisting liens on the property claimed as exempt and exempted to the bankrupt, which liens had been acquired or given more thán four months before the petition in bankruptcy was filed.

See also 9 Am. Jur. 2d, Bankruptcy, § 314 (1980).

Thus, we hold that although the personal liability of the appellees on the underlying debt was discharged in the bankruptcy proceedings, the unrecorded lien on the exempt property, being valid as between the parties, was not affected by the discharge and its enforcement was left to the jurisdiction of the state courts. Therefore, the trial court erred in granting summary judgment to appellees on the basis of the discharge in bankruptcy.

Reversed.

       According to 9 Am. Jur. 2d, Bankruptcy, § 243 (1980), “[u]nder the Bankruptcy Code of 1978, however, even property which the debtor may. claim as exempt either under bankruptcy or nonbankruptcy law is included as property of the estate.” The proceedings here were initiated prior to the effective date of this act.


text:
    NORTHWESTERN NATIONAL CASUALTY CO. v. Samuel L. MAYS
    81-15
    616 S.W. 2d 734
    Supreme Court of Arkansas
    Opinion delivered May 26, 1981
    [Rehearing denied June 29, 1981.]

      Pickens, Boyce, McLarty & Watson, by: James A. McLarty, for appellant.

      H. David Blair, for appellee.
   Frank Holt, Justice.

Appellee sued appellant in a direct action to recover damages for personal injuries resulting from an automobile collision between appellant’s insured and appellee. The jury returned a verdict for appel-lee, leaving blank the line on the damages interrogatory where they were to insert a dollar amount if they found for appellee. Instead, beneath the interrogatory, the jury wrote the following:

@200 per month retroactive to the date of the accident, to be continued for the rest of Samuel’s natural life. We also recommend that all medical and legal fees to date be paid in full.

Counsel for appellant requested a poll of the jury to ascertain the dollar amount it intended for appellee to recover. The court refused and offered instead to send the jury back to compute the dollar amount and then fill in that blank portion of the interrogatory. The appellant moved for a mistrial, asserting that the jury had specified an improper basis for recovery, namely legal fees, and based upon the jury’s action, “it is obvious” the jury would adjust its award to include attorneys’ fees. The court denied appellant’s motion for a mistrial. The court then told the jury that its answer to this interrogatory was not acceptable in its form, the award must be stated in a dollar amount, and pertinent instruction did not include legal fees as to the elements the jury should consider in awarding damages. After further deliberation, the jury returned a unanimous verdict for $25,000. The appellant renewed its motion for a mistrial, which was again overruled.

Appellant contends that the court erred in denying its motions for a mistrial and for a new trial. It argues that since the jury did not follow the law when it awarded attorneys’ fees, it would be speculation that the jury did not adjust its subsequent verdict to include attorneys’ fees. There is a presumption the jury obeyed the court’s instructions. Jones v. Fowler, 171 Ark. 594, 285 S.W. 363 (1926); and Bridgforth v. Vandiver, 225 Ark. 702, 284 S.W. 2d 623 (1955). Here, the jury was sent back to deliberate with specific instructions that it could not award attorneys’ fees. There is nothing in the record to indicate the jury did not precisely follow the court’s instructions during its additional deliberation. The second verdict was in proper form, and the jury exhibited no confusion on their return. The court cured any error by reinstructing the jury and sending them back to deliberate further. This was a correct procedure. Aetna Life Insurance Co. Dewberry, 187 Ark. 278, 59 S.W. 2d 607 (1933).

As to appellant’s contention that it was error to refuse to allow it to inquire of the jury, upon its first verdict, the dollar amount it intended for appellee to recover, Ark. Stat. Ann. § 27-1737 (Repl. 1979) permits polling by “asking each juror if it is his verdict.” Certainly, the trial court did not abuse its discretion in refusing the inquiry as posed.

Appellant next asserts that the jury erred in the assessment of the amount of recovery. It urges the award is shocking to the conscience in view of the minimal bills, appellee’s age (69), and his being fully retired by a former disability, he sustained no loss of income as a result of the injury. In Freeman v. Jones, 239 Ark. 1143, 396 S.W. 2d 931 (1965), we stated:

The responsibility for determining the recoverable damages in an action for personal injuries is primarily and peculiarly a matter for the jury. We are not at liberty to disturb the verdict unless the award is so palpably excessive that it shocks the conscience of the court or indicates that the jurors were motivated by passion or prejudice.

See also Scheptmann v. Thorn, 272 Ark. 70, 612 S.W. 2d 291 (1981). Here, the appellee, who suffered from arthritis, sustained a fractured right scapula, shoulder blade. There was medical evidence that the appellee sustained a 25 to 50% loss of use of the right arm. The injury, which aggravated his arthritic condition, was of a permanent nature, including the pain he was suffering. There is a “gravel” like sensation when appellee moves his arm up or down. The appellee, himself, testified that whenever he moves his right arm, he has a “grinding feeling.” He has difficulty in shaving and combing his hair. When he turns on his right side while sleeping, he is awakened with a “terrible lot of misery.” In the circumstances, we cannot say the jury’s award is excessive.

The appellant’s final point is that the court erred in suppressing a portion of Dr. Dickson’s testimony, appellant’s witness. His testimony established a discrepancy in the impairment rating of 5% given to appellee by him and the 25-50% disability rating given by Dr. Walker. Counsel had asked the witess the question that, assuming Dr. Walker had intended to use the word “disability” in the same way the witness used the word “impairment,” “do I take it that there is a difference between your five percent and his fifty percent in your two opinions?” Counsel for appellee objected that the question was leading and required Dr. Dickson to speculate as to what Dr. Walker meant. The witness was allowed to answer the question, but the trial judge ruled subsequently that portion of the video taped testimony would not be shown to the jury. Appellant argues there was a factual basis for the hypothetical question, and it was prejudiced by the fact the jury was not allowed to know of Dr. Dickson’s disagreement with Dr. Walker. We find no reversible error. The question was a leading one and no attempt was made by counsel to rephrase to cure this error. See Rule 611 (c), Uniform Rules of Evidence. Certainly, the court did not abuse its discretion. Furthermore, there was other evidence presented concerning the disagreement of the two doctors as to the extent of appellee’s disability. Dr. Walker testified that appellee had a 25-50% loss of use of his right arm. Dr. Dickson considered appellee had only a 5% impairment. Dr. Dickson also testified that there was some “discussion” as to what the terms meant but that he gave a rating of “physical impairment” rather than of “disability.” He did not consider one’s occupation or life style in this rating. He stated he did not know what Dr. Walker took into consideration, and he was not in a position to say that they were in strict disagreement. On cross-examination he again testified Dr. Walker’s report was given in terms of disability rather than physical impairment, and some doctors draw a fine line between those while others use the terms interchangeably. It was for the jury to reconcile any disagreement between the two doctors or that they may have used different standards.

Affirmed.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Mary Alice McDERMOTT et al v. Herbert H. McADAMS, Executor, et al
    81-69
    616 S.W. 2d 476
    Supreme Court of Arkansas
    Opinion delivered May 26, 1981

      Moses, McClellan & McDermott, by: Harry E. McDer-mott, for appellant.

      Rose Law Firm, by: J. Gaston Williamson, for appellee Norma C. McClellan.

      Griffin Smith, for appellee-executor.
   Darrell Hickman, Justice.

Two decisions made by the Pulaski County Probate Court in the matter of the estate of John L. McClellan were consolidated for this appeal.

The first case involves only one of the appellants, Mary Alice McDermott, a daughter of McClellan, who was ordered by the probate judge to deliver to the estate certain stocks and certificates of deposit. McDermott resisted that order, claiming that the probate court had no right to determine title to these instruments. Her argument is simply an attempt to reargue an issue that was decided in McDermott v. McAdams, 268 Ark. 1031, 598 S.W. 2d 427 (Ark. App. 1980). The court in that case unequivocally decided that title to this property was in the estate and it cannot be relitigated. After the case was remanded, the probate judge ordered those documents changed to reflect ownership in the name of the estate rather than Mary Alice McDermott, individually or as trustee. From this order an appeal is taken attempting to reargue jurisdiction of probate court to decide title to these instruments. The order was based on Rule 70 of the Rules of Civil Procedure. This rule is essentially a recitation of Ark. Stat. Ann. § 62-2004(b) (Repl. 1971) which provides that the probate court “... shall have the same powers to execute its jurisdiction to carry out its orders and judgments ... as now exist in courts of general jurisdiction.” The order was purely executory, the issue of jurisdiction being moot.

The other case on appeal concerns an interpretation by the probate judge of McClellan’s will. A dispute arose between the daughters of McCellan and the widow of McClellan regarding the payment of administrative expenses and claims. In a lengthy memorandum the probate judge considered the arguments made by the parties and concluded that McClellan’s will made no specific provision for payment of claims or administrative expenses and, therefore, he would follow Arkansas’ abatement statute which is designed to cover just such a contingency. The abatement statute provides that when there is no specific provision regarding payment or claims of distribution and no general testamentary plan, shares of the distributees will abate in the following order:

(1) Property not disposed of by will;
(2) Property devised to the residuary devisee;
(3) Property disposed of by the will but not specifically devised and not devised to the residuary devisee; and
(4) Property specifically devised.

Ark. Stat. Ann. § 62-2903 (Repl. 1971).

It is not disputed that there is adequate property in the residuary of McClellan’s will to pay these expenses. The appellants’ argument is that there was an implied plan in McClellan’s will that the expenses should be shared pro rata. In the alternative it is argued that the widow received “general bequests” and, therefore, should bear the proportionate part of the expenses. Finally, it is argued that McClellan’s will called for an equal and fair distribution of the property and the probate court order will result in the widow receiving approximately 70% of the estate and other heirs 30%.

The record does not contain McClellan’s will. The only evidence of the will’s contents that we have is a paraphrased version that is contained in the memorandum opinion issued by the probate judge. According to that memorandum, the will provided that most fiirniture and personal effects located in McClellan’s home in Washington, D.C., would go to the wife. Mention was made of an itemized list of items that should go to Mary Alice unless the widow objected.

Two specific bequests were made,.one to the Baptist Medical Center for $25,000.00 and one conditionally to the Crowley Ridge Academy for $10,000.00.

One half of the income of all real estate was bequeathed to the widow, with the balance to the residuary estate. One third of all personalty was bequeathed outright to the widow, with the express declaration that the bequest was intended to qualify for the marital deduction under federal estate laws.

The will provided that all federal estate taxes should be paid out of the rest and residue of the estate.

The residuary clause provided that all of the remaining property should be divided into four equal portions: One to McClellan’s daughter, Doris; one to his daughter, Mary Alice; one to be divided in three equal shares going to three grandchildren; and one portion in trust to his stepdaughter, which bequest apparently has failed.

That is all that the probate judge had to go on concerning judgment and it is all that we have before us. The probate judge summed up his sentiments, which reflect ours, when he said of McClellan’s intent:

Why he made no specific provision for the payment of claims, I do not know. He may have thought that his direction concerning the payment of taxes took care of this problem; or, he may have relied upon knowledge that our abatement statute took care of it; or, he may have had something in his mind that no one else has thought about up to this time; or, he may have simply overlooked the problem. And so it is that I conclude that to imply intent one way or the other is rank speculation, and in this state of affairs, the better rule is for courts to apply the abatement procedure.

The will contains no express provision concerning expenses or claims. We cannot find with any confidence that there was an express or implied testamentary plan. Consequently, we agree with the probate judge that it was proper in this case to apply the abatement statute.

Three other issues are raised by the appellants. The probate judge held that McClellan’s interest in a limited partnership was personalty and not realty. McClellan owned 4.5% in a limited partnership with assets consisting of 1,500 acres of land. Ark. Stat. Ann. § 65-318 (Repl. 1980) reads: “A limited partner’s interest in the partnership is personal property.” The appellants concede that this is the majority rule. The probate judge so held and we affirm that decision.

The probate judge ruled that certain benefits McClellan’s widow received from the federal government for McClellan’s services as a United States senator were the widow’s property and not property of the estate. The exact benefits and their nature are referred to in argument but the record is void of evidence of these benefits. Reference was made to 5 USCA §§ 5581 (2), 5582, 5595, and 5 USCA § 8343. Apparently there was a lump sum payment and monthly benefits which are being paid to the widow according to McClellan’s election before his death. The appellants argue that McClellan was “possessed” of these benefits when he died and they should pass under his will. The probate judge equated such benefits to those of ordinary life insurance proceeds, joint bank accounts, or savings and loan accounts, and declared that these benefits were not the property of the estate. On this record we cannot say that the judge was clearly wrong.

The final issue concerns a slander lawsuit pending against the estate in the United States Court of Appeals, District of Columbia Circuit. The district judge has declared that the administrator of McClellan’s estate could distribute the estate’s property but only at the risk of the administrator being liable for any judgment that may be entered. Rather than do so, the administrator recommended to the trial judge that certain assets be retained by the estate for this possible liability. The administrator suggested that the two pieces of property to be withheld from distribution should be certain real estate in Malvern, Arkansas, and the limited partnership interest. The appellants object to withholding any distribution, arguing that no valid claim has been filed in the slander suit. The probate judge in a purely discretionary act decided to protect the administrator and withheld distribution of some of the assets. In order to be fair, the judge included some property that would go to the widow so the burden would be equally borne. We cannot say on this record the judge abused his discretion. The widow objected to withholding her property and argues this point on appeal. Apparently she is not serious because no notice of cross-appeal was filed.

The decision of the probate judge in both cases is affirmed.

Affirmed.

Holt, J., not participating.

Turtle and Hayes, JJ., dissent.

John I. Purtle, Justice,

dissenting. I think this record should be sent back to the trial court for the purpose of incorporating the will into the record on appeal. Arkansas Rules of Appellate Procedure, Rule 6(e) states:

... If anything material to either party is omitted from the record by error or accident or is misstated therein, the parties may by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court on proper suggestion, or on its own initiative, may direct that the omission or misstatement shall be corrected, and if necessary, that a supplemental record be certified and transmitted. (Emphasis added)

It is evidence from reading the above rule that this court has the expressed authority to require that the will, which is the subject matter of this controversy, be included in the record before us. It is even more obvious that we will be unsure we are reaching a correct result unless we have the decedent’s will before us for review.

Ark. Stat. Ann. § 62-2903 (b) (Repl. 1971) (Abatement Statute) states:

If the provisions of the will or the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a) hereof, the shares of distributees shall abate in such other manner as may be found necessary to give effect to the intention of the testator.

From the fragments of the will which are included in the abstract and briefs, I feel I can state that the late senator intended thát his bounty be divided as follows: one third to his widow and the balance of the property to be split in four equal portions. These portions were: one portion to his daughter, Doris; one portion to his daughter, Mary Alice; the third part to be divided equally between his four grandchildren; and one portion to his stepdaughter, Norma LeFevers, on specific condition which if such condition failed this devise would revert to the remaining three devisees. The decedent further had a provision that the inheritance or estate tax should not be paid from the widow’s portion. Additionally, it appears to me that the devise to the widow is more in the nature of a general than specific devise.

It is obvious the trial court was greatly disturbed by the problems presented in the probate of this will. It cannot be more clearly expressed when he stated:

... A great deal of law on this problem is cited by both parties, but because I have determined that the answer is the abatement statute, I leave the issue unresolved. I conclude that it would be pure speculation to imply this intent in either direction.

Certainly, it cannot be argued that either side prevailed in the court below because of a preponderance of the evidence or the weight of the evidence or anything other than a decision similar to a flip of the coin. We should not leave the trial court and the parties with a situation such as this. The only way we can confidently render an opinion in this case is that we have the will before us in order to determine the intention of the testator.

In the case of Fish v.Bush, 253 Ark. 27, 484 S.W. 2d 525 (1972), we stated:

... Occasionally we do send an equity case back for additional proof when there is justification for a deficient record. For instance, we followed that course in Hutchison v. Sheppard, 225 Ark. 14, 279 S.W. 2d 33 (1955), because an important question of fact had been overlooked by all the parties both in the trial court and here. ...

We followed the same rule in Ferguson v. Green, 266 Ark. 556, 587 S.W. 2d 18 (1979), wherein we stated:

... Where the case has been once heard upon the evidence or there has been a fair opportunity to present it, this court will not usually remand a case solely to give either party an opportunity to produce other evidence; the rule, however, is not imperative and this court has the power, in furtherance of justice, to remand any case in equity for further proceedings, including hearing additional evidence. ...

Ark. Stat. Ann. § 62-2004 (b) (Repl. 1971) provides that the probate court shall have the same power to execute its jurisdiction, carry out its orders and judgment as exist in courts of general jurisdiction. Although the trial court is not primarily involved in the matter at this point, I refer to the foregoing statute to show that probate courts should come under the same rule as chancery courts in the cases cited above. At this time the matter is solely up to this court and if it would truly like to determine the intent of the testator, it could return the record to the trial court for completion or could issue certiorari and order it sent up.

Although I have no particular authority to support my opinion, 1 feel tnat the intent oí the testator is visible in this case. It appears to me that he intended his debts and taxes to be paid first and then the legacies therein enumerated be awarded. I cannot make the bold statement that I have determined this to be so from looking at the four corners of the instrument because we do not have that instrument before us. Therefore, I would remand the case for the purpose of completing the record to include the will of the decedent or in the alternative issue certiorari for the instrument to be forwarded to this court.

Hays, J., joins in this dissent.


author: Darrell Hickman, Justice.

text:
    Steve Eliot THOMPSON v. STATE of Arkansas
    CR 80-256
    616 S.W. 2d 18
    Supreme Court of Arkansas
    Opinion delivered May 26, 1981

      Robert J. Brown, P.A., and Lessenberry & Carpenter, for appellant.

      Steve Clark, Atty. Gen., by: Leslie M. Powell, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Steve Eliot Thompson was convicted of first degree murder and battery and sentenced to fifty years and twenty years respectively. He argues that three procedural errors were committed requiring reversal or dismissal of the judgment. The judgment is affirmed.

During a first trial the judge granted a mistrial on the appellant’s motion. The deputy prosecuting attorney elicited from the complaining witness the fact that the witness had obtained a warrant against Thompson on another charge which was later nolle prossed. The court had ruled that no mention could be made of the warrant. After extensive arguments in chambers the judge found the action by the State’s attorney to be the result of an honest misunderstanding. The appellant argues that a second trial was double jeopardy and that the issue of double jeopardy should have been submitted to the jury to determine whether the State’s attorney had “overreached” his authority. According to the appellant’s argument, the State caused the mistrial and a retrial should be barred under United States v. Martin, 561 F. 2d 135 (8th Cir. 1977). The trial judge properly ruled that double jeopardy did not attach. The appellant asked for the mistrial several times and, as the appellant concedes, a mistrial under those circumstances does not ordinarily bar a retrial. Lee v. United States, 432 U.S. 23 (1977). We cannot say that the court’s finding that there was no intentional misconduct was clearly wrong. It was not for the jury to decide this issue since the jurors are the judges of the facts and the court is the judge of the law. See 47 Am. Jur. Jury, § 3 (1969).

The second argument is that the improper remarks of the State’s attorney during closing arguments were grounds for a mistrial. The State’s attorney made the following statement, referring to the victim’s parents: “Robin’s mom and dad are sitting right out there. They love her with all their heart.” An admonition was given to the jury at appellant’s request. It cured any possible prejudice according to our decisions. Williams v. State, 259 Ark. 667, 535 S.W. 2d 842 (1976); Parker v.State, 256 Ark. 315, 578 S.W. 2d 206 (1979).

The final argument is that a new trial should be granted for a juror’s misconduct. Mrs. Hermus Jean Kelley reported on the second day that she realized after the trial started that she worked with the appellant’s sister. The judge held a hearing, questioned the juror, and found that Mrs. Kelley could continue to serve without prejudice to the appellant. There was no evidence of prejudice to counter the juror’s statement that she could serve in an impartial manner.

After trial, it was submitted that this same juror had eaten lunch during the trial with two defense witnesses. Again it was not shown that the appellant was in any way prejudiced. A hearing was held and the juror and the two witnesses testified. In no way did either witness try to influence the juror — certainly not to the defendant’s prejudice. If anything, the record reflected that this juror was sympathetic to the defendant.

While the State must show an absence of prejudice in such a case, the court determined there was none. Hewell v. State, 261 Ark. 762, 552 S.W. 2d 213 (1977). We cannot say that this finding was clearly wrong.

Affirmed.


author: John I. Purtle, Justice.

text:
    John Cecil CASH and Bobbie CASH, His Wife v. Harvey H. CASH, et al
    79-226
    616 S.W. 2d 13
    Supreme Court of Arkansas
    Opinion delivered May 26, 1981

      Holloway & Haddock, by:James W. Haddock, for appellants.

      Gibson Law Office, by: Charles S. Gibson, for appel-lees.
   John I. Purtle, Justice.

The chancellor overruled appellants’ motion to restrain the sale of certain lands which had been ordered sold in an earlier decree. This appeal is from the overruling of the motion to restrain said sale. Appellants contend the court erred in overruling the motion because there was no order appointing a successor commissioner who was conducting the salé and further that there was an appeal pending. We do not find error in either contention.

The original decree in which the sale of this property was ordered sold was entered on October 5, 1978. Appellees gave notice of appeal and subsequently obtained an extension of time within which to file the record. However, they never perfected the appeal but instead proceeded to order the land sold in compliance with the original decree. Appellants filed a motion to restrain the sale, and the motion was overruled after a hearing. This appeal is from the order overruling the motion to restrain the sale of the land. The order was interlocutory in nature and was in no manner a final appealable order. Boyett v. Boyett, 269 Ark. 36, 598 S.W. 2d 86 (1980); Arkansas Rules of Appellate Procedure, Rule. 2. Therefore, having no final order before us, the appeal must be dismissed.

Appeal dismissed.


author: Robert H. Dudley, Justice. Darrell Hickman, Justice,

text:
    FORREST CITY MACHINE WORKS, INC. v. Rayburn ADERHOLD, by CROSS COUNTY BANK, Wynne, Arkansas, Guardian of His Estate, and E. Wayne ADERHOLD and Maureen ADERHOLD
    81-17
    616 S.W. 2d 720
    Supreme Court of Arkansas
    Opinion delivered May 26, 1981
    [Rehearing denied June 29, 1981.]

      Wildman, Harrold, Allen, Dixon & McDonnell, by: Robert M. Johnson and Thomas J. Walsh, Jr., and Shaver, Shaver & Smith, by: Tom B. Smith, for appellant.

      Laughlin, Halle, Regan, Clark & Gibson, and H. David Blair, for appellees.
   Robert H. Dudley, Justice.

Appellee, Rayburn Wayne Aderhold, by his guardian and parents, sued appellant, Forrest City Machine Works, for personal injuries sustained in a 1977 farm accident involving a grain cart which was manufactured by appellant in 1956. Aderhold, who was eight years old at the time of the accident, had accompanied his uncle to a farm where the uncle and two of Aderhold’s young cousins worked. One of the cousins, a thirteen-year-old, was operating a tractor with a grain cart attached by means of an open power take-off line shaft which was controlled by the tractor operator. Aderhold had climbed up on the cart while the shaft was in motion and was told to get off. When he was climbing back down the ladder, he caught his pants leg on a part of the machinery and his leg was pulled into the rotating shaft. He sustained multiple leg fractures, had various operations, and is now disabled. Appellee sued appellant and the owner of the farm, who is not involved in this appeal, on theories of negligence and strict liability. A Cross County circuit court jury awarded appellee #235,000 compensatory damages plus #500,000 punitive damages.

The appellant contends that the issue of negligence should never have been submitted to the jury because: (1) As a matter of law, an open and obvious hazard is not unreasonably dangerous, and the manufacturer has no duty to warn of such a hazard; (2) there is no substantial evidence that appellant failed to comply with the 1956 state of the art concerning safety features on grain carts; (3) regardless of the theory applied, as a matter of law the circumstances leading to the accident were not foreseeable.

Under the “open and obvious” rule, a manufacturer of a product has no duty to guard against or give notice of dangers which are obvious or patent to the user. See Campo v. Scofield, 301 N.Y. 468, 95 N.E. 2d 802 (1950). We have never followed this rule in Arkansas, and do not now adopt it. The Florida Supreme Court in Auburn Machine Works Co. v. Jones, 366 So. 2d 1167 (1979) wisely observed:

The patent danger doctrine encourages manufacturers to be outrageous in their design, to eliminate safety devices, and to make hazards obvious. For example, if the cage which is placed on an electric fan as a safety device were left off and someone put his hand in the fan, under this doctrine there would be no duty on the manufacturer as a matter of law. So long as the hazards are obvious, a product could be manufactured without any consideration of safeguards ...
The patent danger doctrine protects manufacturers who sell negligently designed machines which pose formidable dangers to their users.

Manufacturers in Arkansas are not and should not be relieved of the duty to exercise due care in the design and manufacture of equipment merely because the dangerous feature is clearly exposed to those foreseeably using the machine. However, there is no duty on the part of a manufacturer to warn of a danger when the dangerous defect is open and obvious. As stated in Larson Machine v. Wallace, 268 Ark. 192, 600 S.W. 2d 1 (1980): “One cannot be heard to say that he did not know of a dangerous condition that was so obvious that it was apparent to those of ordinary intelligence.” One must use ordinary care to protect himself from an apparent danger, and he may be barred from recovery from the manufacturer on grounds of contributory negligence or assumption of the risk, but this is for the jury to determine. See Larson, supra. The open and obvious rule will not serve as a defense, as a matter of law, to all bases of liability.

Appellant contends that there was insufficient evidence for the jury to conclude that the grain cart was manufactured in a manner that did not comply with the state of the art at the time of manufacture, and therefore, as a matter of law, it is not liable for a negligent design or negligent manufacturing. Even if “state of the art” were the Arkansas test, there is substantial evidence to support the jury finding that appellant’s grain cart was not not manufactured in accordance with customary procedures at that time. According to the record, by 1956, the time of manufacture, various other manufacturers were using safety devices to shield the power take-off unit.

Compliance with industry customs is not a defense as a matter of law to a negligence action. As we stated in Verson Allsteel Press Co. v. Garner, 261 Ark. 133, 547 S.W. 2d 411 (1977):

[W]hile we consider this evidence [safety standards] ... pertinent and relative to the determination reached, such evidence is not controlling, i.e., customary methods, or accepted standards are not at all conclusive and negligence may exist notwithstanding the fact that the method adopted was in accordance with customary procedures. [Emphasis added.]

Appellant argues that it was not reasonably foreseeable that an eight-year-old would climb up on the cart, or that anyone would use the grain cart ladder while the machine was in operation, or that anyone would be oblivious to the danger of an open spinning power shaft.

This Court, in a 1962 products liability case, ruled that a manufacturer who fails to use reasonable care in the design and manufacture of a product is liable not only for the harm which may come to users of the product, but also for harm expected to come into contact with the product. International Harvester Co. v. Land, 234 Ark. 682, 354 S.W. 2d 13 (1962).

Viewing the evidence most favorably to appellee, we cannot say there was no substantial evidence from which the jury could find it was customary in Arkansas for youngsters to be operating farm machinery and that it was not unusual for an eight-year-old farm boy to be attracted to such machinery. The record shows that farming in Arkansas is frequently a family operation and all family youngsters may be expected to come into contact with the family’s farm machinery. The record also contains sufficient evidence from which the jury could find that one might use the ladder on the grain cart while the power take-off was engaged.

Appellant next contends that even if it was negligent in the design and manufacture of the cart, appellee’s injuries, as a matter of law, were proximately caused by his own assumption of the risk and by intervening causes.

In Capps v.McCarley and Co., 260 Ark. 839, 544 S.W. 2d 850 (1976), we held that assumption of risk bars recovery where (1) a dangerous condition exists which is inconsistent with the injured party’s safety, (2) the injured person is actually aware of the condition and appreciates the danger, and (3) the injured person voluntarily exposes himself to the danger which produces the injury. However, under this harsh doctrine, it is not sufficient for the defendant to prove that the plaintiff was generally aware of the risks or dangers of coming into contact with the product, but rather the defendant must prove that the plaintiff had knowledge of the specific danger and that he fully comprehended and appreciated that danger. As said in Price v. Daughtery, 253 Ark. 421, 486 S.W. 2d 528 (1972):

Assumption of risk occurs only when the injured person actually knows and appreciates the danger. The standard is a subjective one, being based upon what the particular person in fact sees, knows, understands, and appreciates. McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753 (1972).

In order for appellant to prevail upon this point, we would have to hold, with all inferences in favor of appellee, that intelligent persons would only conclude that this eight-year-old child knew and appreciated the dangerous proximity of the grain cart’s ladder to the drive shaft, and that as he climbed down the ladder, the shaft could become entangled with his pants, pull him from the ladder and horribly injure him. We do not find this strong proof in the record that was abstracted and affirm the trial judge in ruling that assumed risk was for the jury to decide. Likewise, we affirm the trial judge in submitting the issue of intervening cause to the jury.

Ark. Stat. Ann. § 85-2-318.2 (Supp. 1979), the statutory adoption of strict liability, was enacted in 1973- The grain cart was manufactured in 1956, and obviously was designed before being produced. The accidental injury occurred after enactment of the statute. The trial court applied the statute and appellant argues that this violated the prohibition against retroactive application of legislation.

We find no constitutional or statutory prohibition to prevent the application of this statute in this case. The only express provisions in the Federal Constitution against retroactive laws forbids Congress to pass ex post facto laws or bills of attainder, Article I, § 9, No. 3, and forbid states to pass ex post facto laws, bills of attainder, or laws which impair the obligation of contract, Art. I, § 10, No. 1. Article 2, § 17 of the Arkansas Constitution also applies to bills of attainder, ex post facto laws and laws which impair the obligation of contracts. Many types of retroactive laws are not covered by these express prohibitions.

The due process clauses are frequently held to prevent retroactive legislation from taking property belonging to one and giving it to another, without regard to any prior relations between the parties. To determine if one has a protected property right the courts often look to see if a right has vested. Bryant Smith, in his articles, “Retroactive Laws and Vested Rights,” 5 Texas Law Review 231 (1927) and 6 Texas Law Review 409 (1928), reprinted in Sands, Sutherland Statutory Construction, 4 Ed., Vol. 2, page 497, 1973 Edition, discussing vested rights, states:

***It is on the basis of this distinction also that the legislature, as to injuries not yet sustained, may deprive servants of their common law right of action for negligence or employers of their common law defenses, but may not so deprive either party after the injury has already occurred; that laws may change the rules of inheritance before but not after descent cast; or cure defective wills before but not after the death of the testator; that the location of public lands is immune to retroactive deprivation after a survey but not before, and so on.

We have concluded that no vested rights were violated in this case. In this context a vested right exists when the law declares that one has a claim against another, or it declares that one may resist the enforcement of a claim by another. The statute in question does not declare that appellee has acquired a claim, for the products liability doctrine was recognized long before the statutory scheme of strict liability for products liability. The section of the statute applicable to this case simply provides that appellee does not have the burden of proving negligence in the design or in the manufacture of the grain cart. As to appellee, this is a procedural matter and not a substantive one. Hence, appel-lee has not acquired any substantive claim or right which is applied retroactively.

The jury found the appellant guilty of negligence in both the design and the manufacture of the cart. This renders moot the necessity to decide whether appellant lost a substantive vested right to resist the claim by losing the defense of lack of negligence. We do not reach that issue although we do note that no claim was revived and a modification of remedies is generally considered a valid area of retroactive legislation. Sands, Sutherland Statutory Construction, supra at § 41.09. Also, no man has a vested right to a particular remedy. Commonwealth v. Commissioners, 23 Mass. 501 (1828).

For these reasons we hold that appellee has lost no vested right, and the question is moot as to appellant. However, the doctrine of vested rights is not the only determinative factor and is not always followed in deciding whether to apply a law retroactively. Smith, in his articles, “Retroactive Laws and Vested Rights,” supra, states:

... what of a law that, by legitimizing an illegitimate child, takes property from an heir who before the law had a perfect title in every respect and for all purposes, and gives it to a remote purchaser from the illegitimate? If the term “vested” means anything at all, some of these laws certainly take away vested rights, and yet such laws have been sustained. It is submitted that the distinction between vested and non-vested rights, like that between rights and remedies, or between jurisdictional and non-jurisdictional defects in legal proceedings, is of use primarily as a basis on which to classify decisions after they have already been reached on other grounds.

Courts have traditionally applied laws retroactively when they deem it just for “courts do not regard rights vested contrary to the equity and justice of the case.” State v. Newark, 30 Dutch 185 (New Jersey 1858). This brings us to one of the deciding factors in the retroactive application of laws — public policy. The legislature stated the public policy in § 3 of this act as follows: “This enactment is remedial in nature and in no way affects or limits any other existing remedy.” If an act does violence to our sense of justice it is found to be contra to public policy. In General Motors v. Tate, 257 Ark. 347, 516 S.W. 2d 602 (1974), we thought it would be unfair to relate back this statute when both the manufacture and the accident took place before the act. However in this present case, the accident took place after the statute was enacted. We deem that to be a distinguishing factor in the considerations of public policy.

The fact that the legislation is remedial is also significant. As we stated in Harrison v. Matthews, 235 Ark. 915, 362 S.W. 2d 704 (1962):

The rule by which statutes are construed to operate prospectively does not ordinarily apply to procedural or remedial legislation. “The strict rule of construction contended for does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. These should receive a more liberal construction, and should be given a retrospective effect whenever such seems to have been the intention of the Legislature.” State ex rel. Moose v. Kansas City & M. Ry. & B. Co., 117 Ark. 606, 174 S.W. 248.

For these reasons we affirm the trial court in submitting the statute to the jury in this case. In any event, the matter was rendered moot by the jury’s specific finding that appellant was guilty of negligence in the design or manufacture of the cart which was the proximate cause of the accident, and the specific finding that the cart was in a defective condition which rendered it unreasonably dangerous at the time it was manufactured. See St. Louis I.M. & So. Ry. Co. v. Ledford, 90 Ark. 543, 119 S.W. 1123 (1909).

The eight-year-old appellee was injured on the grain cart which was attached to a tractor driven by his thirteen-year-old cousin. The cousin had been hired to operate heavy and dangerous farm machinery in violation of Ark. Stat. Ann. § 81-702 (Repl. 1976), which provides no person under sixteen shall be employed in any occupation dangerous to life or limb. Appellant offered an instruction that a violation of this statute is evidence of negligence to be considered with all other facts and circumstances. The trial court refused to give the instruction and we affirm. The purpose of this statute is to protect child employees; in this case a thirteen-year-old tractor driver. This child protection statute does not prescribe standards of conduct for child employees toward third persons which absolve a manufacturer from liability. Before the violation of a statute may be used a evidence of negligence, it must be shown that the party seeking the protection of the statute is a member of the class of persons for whose benefit the statute was passed. Appellant manufacturer simply is not a member of that class. We do not imply what our ruling would be if appellant were pursuing a claim for contribution against the employer who hired the thirteen-year-old, for that question is not before us. Likewise, the appellee has dismissed his claim against the employer, and we do not consider the application of violation of the statute as between them.

The jury returned a verdict in favor of appellee in the amount of 8285,000 compensatory damages. We cannot say there is no substantial evidence to support this verdict, and we decline to order or suggest a remittitur. We affirm the 8285,000 award of compensatory damages.

The jury also returned a verdict in favor of appellee in the amount of 8500,000 punitive damages. Both parties have submitted unusuially good briefs, and have engaged at length upon a philosophical discussion of the propriety of awarding punitive damages in a products liability case. We have concluded that there are valid reasons for allowing punitive damages in products liability cases. The Supreme Court of Alaska in Sturm, Ruger & Co. v. Day, 594 P. 2d 38 (1979), persuasively stated:

We believe that as a matter of public policy, punitive damages can serve useful functions in the products liability area. For example, the threat of punitive damages serves as a deterrence function in cases in which a product may cause numerous minor injuries for which potential plaintiffs might decline to sue, or in cases in which it would be cheaper for the manufacturer to pay compensatory damages to those who did present claims than it would be to remedy the product’s defect. In addition, if punitive damages could not be awarded in the products liability context, a reckless manufacturer might gain an unfair advantage over its more socially responsible competitors.

Arkansas Model Jury Instruction 2217 is the proper instruction to give in a products liability case, when warranted by the evidence. However, we have examined the record in this case and have concluded there was insufficient evidence to submit the issue of punitive damages to the jury. The proof with regard to design and manufacture amounts to simple negligence, and we can find no substantial evidence to sustain a finding of a reckless disregard from which malice would be inferred.

We reverse the award of $500,000 punitive damages and affirm the award of $285,000 compensatory damages.

Affirmed as modified.

Hickman and Hays, JJ., concur in part and dissent in part.

Holt, J., not participating.

Darrell Hickman, Justice,

concurring in part, dissenting in part. I agree that the judgment for compensatory damages should be affirmed in this case. I dissent to reversing the punitive damages award.

In my judgment the most difficult legal issue in this case is the application of Arkansas’s strict liability statute. Ark. Stat. Ann. § 85-2-318.2 (Supp. 1979). This law was passed in 1973. The machine in question, a grain buggy, was built in 1956. The accident occurred after the statute was enacted. The majority has skirted some previous cases of ours which say that Arkansas’ strict liability statute is a new cause of action. See General Motors v. Tate, 257 Ark. 347, 516 S.W. 2d 602 (1974). It is my judgment that the language in the Tate case and other cases that say strict liability is a new cause of action is wrong. The strict liability statute simply changes the burden of proof. The statute does not make a manufacturer liable for conduct that it would not have been liable for before the statute. It simply provides that a plaintiff only has to show a defect in the manufacture of a product rather than show the manufacturer was negligent. In such cases it is virtually impossible to show negligence. The statute simply shifts the burden of proof; the statute is therefore purely remedial and creates no new cause of action. It is a fundamental rule of law that statutes relating only to remedies or modes of procedure are generally held to operate retrospectively. Hardman v. Personnel Appeal Board, 100R. I. 145, 211 A. 2d 660 (1965). A statute or amendment which furnishes a new remedy, but does not impair or affect any contractual obligations or disturb any vested rights, is applicable to acts done prior to its passage if the proceedings are begun after the act is passed. Schmitt v. Jenkins Truck Lines, Inc., 260 Iowa 556, 149 N.W. 2d 789 (1967).

The grain buggy was without question negligently designed. A ladder was built directly over the drive shaft that turned a screw in the bottom of the buggy. The drive shaft was designed to be attached to a power take-off on a tractor. Anyone familiar with farm equipment knows that it is sometimes necessary to get off a tractor while the power take-off is operating. It is not smart, but it is done. By placing a ladder over the power take-off, without any guard whatsoever, it is inevitable that someone would climb that ladder and hurt himself. A power take-off is one of the most dangerous instruments on a tractor.

At the time this grain buggy was manufactured it was not customary to completely cover the power take-off shaft although many manufactured products did provide some kind of guard. The evidence did demonstrate, however, that most manufacturers of such buggies placed some sort of shield or step below the ladder to protect anyone who climbed the ladder. There was nothing on this grain buggy and it was inevitable that someone would mount the ladder or dismount the ladder and get caught in the power take-off. In this case it was a small child.

This negligence, in my judgment, amounted to gross negligence and a reckless disregard for the user’s safety. Therefore, I would not reverse the award of punitive damages but only reduce it to the amount that the plaintiff asked for which is $ 150,000.00. The trail judge remarked after the jury returned a verdict for $500,000.00 that the appellate court would reduce it to the amount prayed for.

The majority finds that there is no substantial evidence to support punitive damages. I find at least two instances of substantial evidence. The first is the design of the machine itself and the failure to provide a guard or step; the second is the fact the manufacturer had received notice that at least two lawsuits had been filed for injuries occurring as a result of the design of this machinery and the fact that the manufacturer made no effort to correct the defect in the design or to notify any of the purchasers of the grain buggy of the possible danger. To me these acts reflect a reckless disregard for the safety of others from which malice may be inferred.

Hays, J., joins in this concurring opinion and dissent.


author: Robert H. Dudley, Justice.

text:
    William H. SMITH v. STATE of Arkansas
    CR 80-249
    616 S.W. 2d 14
    Supreme Court of Arkansas
    Opinion delivered May 26, 1981

      E. Alvin Schay, State Appellate Defender, by: Matthew Wood Fleming, Deputy Defender, and James Davis, Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: C. R. McNair, III, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

William Smith, the appellant, was charged with the murder of his wife and her paramour. Both homicides occurred near the same time and place. The separate charges were consolidated for trial. The jury found appellant guilty of murder in the first degree of Nelda Smith, his wife, and guilty of murder in the second degree of Lee Green. The sentences were life imprisonment and twenty years in prison, to be served consecutively. Appellant argues that the trial court erred in granting a threshold motion, or motion in limine, which prohibited “any reference to prior altercations” between appellant and the victims.

He contends the exclusion of the following proffered evidence prevented him from presenting a justification defense:

(1) Victim Nelda Smith had shot him on two prior occasions, once with a rifle and once with a shotgun. The first incident occurred two years before the date of the homicides and the second was four months beforehand. The first attack caused permanent injury to his shoulder and the second caused his thumb and finger to be blown away.

(2) Both victims had threatened to kill him.

(3) Victim Lee Green had pulled a gun on him and threatened to kill him three months before these homicides.

Ark. Stat. Ann. § 41-507 (Repl. 1977) provides:

Justification — Use of deadly physical force in defense of a person. — (1) A person is justified in using deadly physical force upon another person if he reasonably believes that the other person is:
(b) using or about to use unlawful deadly physical force.

Evidence of a victim’s violent character, including evidence of specific violent acts, is admissible where a claim of justification is raised. Such evidence is relevant to the issue of who was the aggressor and whether or not the accused reasonably believed he was in danger of suffering unlawful deadly physical force. Rule 404 (a) (1) Arkansas Rules of Evidence (Ark. Stat. Ann. Vol. 3A Repl. 1979). Pope v. State, 262 Ark. 476, 557 S.W. 2d 887 (1977). The ruling excluding this evidence was erroneous.

The ruling on this threshold motion was in error for an additional reason. The motion did not precisely define a time or subject matter which was prohibited. The resulting confusion was apparent when the prosecuting attorney thought the ruling meant the appellant could not testify about statements or threats made at the moment of the homicides, while the appellant’s attorney thought it only applied to previous incidents. This confusion is to be avoided. One of the reasons for granting a threshold motion is to relieve the movant from the necessity of objecting to evidence in the presence of the jury. If there is any confusion concerning the period of time or subject matter, a party may be substantially harmed on appeal for a failure to object at trial. This should be avoided.

A part of the concurring opinion in Arkansas State Highway Com’n. v. Pulaski Investment Co. et al, 272 Ark. 389, 614 S.W. 2d 675 (May 4, 1981) is material:

In Kitchen v. State, 271 Ark. 1, 607 S.W. 2d 345 (1980), we pointed out that the trial judge should deny a threshold motion that is vague and indefinite, because the motion is properly used to prohibit the mention of some specific matter, perhaps of an inflammatory nature, until its admissibility has been shown out of the hearing of the jury. If a sufficiently specific motion is overruled, then it may not be necessary for counsel to renew his objection if the specific prejudicial matter is later introduced. See Ward v. State, 272 Ark. 99, 612 S.W. 2d 118 (1981).
In the case at bar the threshold motion should have been overruled, because, as the majority observe, it was somewhat broad and necessarily subject to some judgment in its interpretation _ if there had been a violation [of the threshold ruling], it would have been incumbent upon appellant’s counsel to renew his objection, because he was responsible for the vagueness in his motion. A renewal of the objection would permit the trial judge to determine at once whether the proffered testimony in fact fell within the vague contours of the motion.

We find the error in granting the motion to be prejudicial error.

Reversed and remanded.


author: Steele Hays, Justice.

text:
    Ivory THOMAS v. STATE of Arkansas
    CR 80-265
    615 S.W. 2d 361
    Supreme Court of Arkansas
    Opinion delivered May 26, 1981

      E. Alvin Schay, State Appellate Defender, by: Deborah A. Sailings, Deputy State Appellate Defender, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Ivory Thomas appeals a conviction of aggravated robbery of the Lehi Liquor Store, resulting in a sentence of 45 years and a fine of $15,000. For reversal he argues that the trial court erred in admitting testimony from a prosecuting witness that she was raped by the appellant during the robbery. We believe the court was right.

Mrs. Alice Waites testified that appellant entered the liquor store where she and her husband were working. He handed Mrs. Waites a note demanding money while pointing a pistol toward her face. She gave him cash from the register and from a file cabinet. She said the appellant put her husband in the restroom and at gun point raped her in the back of the store. She saw him drive away in a white automobile she thought to be a Thunderbird. She saw a CB antenna and the numbers 873 on the license. She was positive in her identification of the appellant. The testimony of other witnesses was that appellant was later apprehended en route to Memphis in a white Mercury, said to resemble a Thunderbird, with a CB antenna on the trunk and license number HMS873. Some §900 in cash and a pistol-type pellet gun were recovered which Mrs. Waites believed was the pistol used in the robbery.

Appellant urges that the court erred in permitting evidence of the rape. He argues that it is prejudicial, that the information made no mention of rape and that the elements or aggravated robbery can be proved without the necessity of producing evidence of the rape. The essential issue is: Can the State offer evidence of criminal conduct by an accused during the commission of a crime, when such conduct is not an element of the crime for which the accused is being tried? This same argument has been so often raised in various forms and so much discussed that the answer is no longer in doubt: all of the circumstances connected with a particular crime may be shown, even if those circumstances would constitute a separate crime.

An earlier case fundamentally indistinguishable is Banks v. State, 187 Ark. 962, 63 S.W. 2d 518 (1933). The appellant appealed a conviction of murder on the grounds that the court erred in permitting evidence that after the murder the accused sexually assaulted the victim’s female companion. As here, the crime of murder could be said to be provable without the necessity of proving rape and the criminal conduct was neither simultaneous nor inseparable. The court held the evidence was admissible not only to prove motive but as a circumstance of the over-all criminal transaction:

Moreover, the testimony of Mrs. May was competent for another reason, that is to say, if several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense, which is itself a detail of the whole criminal scheme. (Emphasis supplied.)

In Butler v. State, 261 Ark. 369, 549 S.W. 2d 65 (1977), appellants were convicted of the fatal shooting of a police officer and claimed error in the admission of evidence that appellants had escaped from the Monroe County jail on the morning of the crime, had stolen weapons from the jail and committed other criminal conduct. We rejected the argument because the “the entire sequence of events was such an inseparable whole that the State was entitled to prove the entire criminal episode.” The opinion branded as fallacious appellants’ attempt “to break down into separate steps the continuous course of criminal conduct that must be considered as a whole .... ”

In Polk v. State, 252 Ark. 320, 478 S.W. 2d 738 (1972), the defendant appealed a conviction for the theft of an automobile from a service station following a robbery. He had previously been tried and acquitted of the robbery and he argued that it was error to admit the testimony of a customer that the defendant held up the station and put the attendant and the customer in a restroom, from which the customer could recognize the sound of his car being started and driven away. The court rejected defendant’s argument: “We have often held that when acts are intermingled and contemporaneous with one another, then evidence of any or all of them is admissible against a defendant to show the circumstances surrounding the whole criminal episode.” The opinion points out that if evidence of the robbery were excluded the jury would wonder why the two men were afraid to come out of the restroom, leaving a puzzling gap in the proof.

In Harris v. State, 239 Ark. 771, 394 S.W. 2d 135 (1965), the accused was convicted of the murder of Martha Dever and four children. He appealed his conviction assigning error to the trial court having admitted evidence that he had also killed Leonard Dever. The court stated:

The rule of inadmissibility of other crimes has no application when other crimes are an inseparable part of the alleged crime. If crimes are mingled to such an extent that they form an indivisible criminal transaction and the full proof of any one of them cannot be presented without showing the others, then evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme. (Emphasis supplied.)

Similar holdings are found in Ingram v. State, 255 Ark. 6, 498 S.W. 2d 862 (1973); Butt v. State, 81 Ark. 173, 98 S.W. 723 (1906); Renfroe v. State, 84 Ark. 16, 104 S.W. 542 (1907); and Carter v. United States, 549 F. 2d 77 (1977) wherein the Circuit Court of Appeals said that all of the circumstances of a particular crime are part of the “res gestae” of the crime.

Citing Russell & Davis v. State, 262 Ark. 447, 559 S.W. 2d 7 (1977), appellant argues that if the other offense is not “inseparable from” the crime charged then it cannot be admitted, urging that armed robbery and rape are not inseparable. But that interpretation warps the usage intended by Russell, as both the holding and the dictum illustrate. True, the rape of Mrs. Waites can be separated from the robbery simply by ignoring it, but the same can be said of the Russell case, and we upheld the admission of evidence of theft of a truck, interference with a police officer, kidnapping, and a second aggravated robbery in the trial of a robbery charge. The other offenses were separable in the literal sense, but not without an incomplete account of the entire criminal episode. The holding in Russell reaffirms the view that all of the circumstances connected with a particular crime may be shown to put the jury in possession of the entire transaction.

It is said the evidence is prejudicial. Unquestionably that is so. But its admissibility cannot be defeated simply on that score, because the same is true in varying shades of all criminal conduct. It is only when the means by which that conduct is demonstrated to the jury are unduly prejudicial that the law draws the line, gory photographs being the obvious example. Here, the only evidence of the sexual assault was the brief verbal account of the victim. Thus, the prejudice lies in the conduct not in the evidence.

It should not be left unsaid that this evidence was also admissible under Rule 404(b), Uniform Rules of Evidence, for identification of the accused. Appellant claims that the rape could not aid in establishing identity, but we disagree. The additional time involved, the nature of the incident, the increased opportunity to see and hear the perpetrator and, thus, to form lasting impressions, would certainly enhance the ability to identify that individual. The fact that appellant argued mistaken identity to the jury in the trial reenforces the view that it would be wise not to hold such evidence inadmissible as a matter of law and to leave it instead to the trial court’s discretion, subject to a case-by-case consideration. Moser v. State, 266 Ark. 200, 583 S.W. 2d 15 (1979); Young v. State, supra; and Russell & Davis v. State, supra.

Affirmed.


author: Richard B. Adkisson, Chief Justice.

text:
    Hadley Laverle KING, William Hadley KING, and Phyllis REDMAN v. C. W. KING, Jr., Executor of the Estate of C. W. KING, Sr., Deceased
    81-23
    616 S.W. 2d 483
    Supreme Court of Arkansas
    Opinion delivered June 1, 1981

      Paul Petty and Lee A. Biggs, HI, for appellants.

      Lightle, Beebe, Raney & Bell, for appellee.
   Richard B. Adkisson, Chief Justice.

This is an appeal from an order of the White County Probate Court determining that appellants are pretermitted heirs of C. W. King, Sr. and are entitled to a one-twenty-fourth interest each in his estate.

C. W. King, Sr. died testate on May 23, 1980, leaving seven children surviving him along with three grandchildren, appellants herein, who are the issue of a son of the testator who was deceased at the time the testator’s will was executed.

Of the seven children who survived the testator, six were expressly disinherited by the testator in his will. The will expressly left all of the testator’s estate, after debts were paid, to the seventh surviving child of the testator, C. W. King, Jr. There was no mention whatever in the testator’s will of the three grandchildren or of their father, who was a son of the testator and who was deceased at the time the testator executed his will.

Appellants argue that they are entitled to one-half of the testator’s estate since it was clearly the intention of the testator that six of his children should not receive any of his estate. In determining the amount of entitlement to an estate where pretermitted children are found to exist, the children take as though there was ño will in accordance with the express statutory language of Ark. Stat. Ann. § 60-507 (b):

b. PRETERMITTED CHILDREN. If at the time of the execution of a will there be a living child of the testator, or living child or issue of a deceased child of the testator, whom the testator shall omit to mention or provide for, either specifically or as a member of a class, the testator shall be deemed to have died intestate with respect to such child or issue, and such child or issue shall be entitled to recover from the devisees in proportion to the amounts of their respective shares, that portion of the estate which he or they would have inherited had there been no will.

It is clear from the statute that appellants are entitled to take, as pretermitted heirs, only that portion of the estate which they would have inherited had there been no will. Had there been no will in this case, they would have inherited a one-eighth interest as a class or a one-twenty-fourth interest individually under our statutes governing intestate succession. The probate judge ruled correctly, and we deem no further discussion necessary.

Appellants argue as a second point for reversal that they were entitled to a default judgment as a matter of law on their “Petition for Pretermitted Heirs” since appellee failed to file its response within 20 days as required by Rule 12 of the Arkansas Rules of Civil Procedure; they also claim that the probate judge erred in failing to grant their “Motion to Strike Response” for the same reason. The probate judge correctly ruled against appellants’ contentions. These arguments are without merit since the Probate Code’s procedural sections govern in cases concerning the filing of petitions for determination of heirship. Ark. Stat. Ann. § 62-2004 (e) provides:

Procedure and Rules of Evidence in Probate Courts, except as in this Code otherwise provided shall be the same as in courts of equity. (Emphasis added)

Ark. Stat. Ann. § 62-2914 (c) (Repl. 1971) contains the procedure for filing petitions for determination of heirship as we have in this case and provides:

c. Procedure. Upon the filing of a petition, the court shall fix the time for the hearing thereof, notice of which shall be given to ...

Furthermore, Ark. Stat. Ann. § 62-2011 (Repl. 1971) governs the filing of objections to petitions in probate matters and provides:

An interested person, on or before the day set for hearing, may file written objections to a petition previously filed. Upon special order or general rule of the court, objections to a petition must be filed in writing as a prerequisite to being heard by the court. (Emphasis added)

The record reveals that the appellants’ petition for determination of heirship under § 62-2914, supra, was filed on July 15, 1980, followed by appellee’s response on September 16, 1980. A hearing was held on September 22, 1980, at which the judge requested briefs from the attorneys.

Although appellee filed his response before the hearing date in this case, we have held previously that these statutes will allow any objections to be made even at the hearing unless a “special order or general rule of the court” as provided in § 62-2011 required a written objection as a prerequisite to the arguments being heard by the court. In Coogler v. Dorn, 231 Ark. 188, 328 S.W. 2d 506 (1959) we rejected the same argument being made here, that is, that the 20-day limitations period found in Ark. Stat. Ann. § 27-1135 (superseded by Rule 12, Ark. Rules Civ. Proc.) would govern procedures concerning petitions for determination of heir-ship within the probate code; we upheld a late response that was read into the record at the time the hearing was held, but following the 20-day period for filing responses under § 27-1135.

Appellants argue as a third point for reversal that there was a conflict of interest prejudicial to their position because the same attorney represented both the executor of the estate and the sole devisee named in the testator’s will. Appellants neither allege nor suggest any specific prejudice and we find no error.

Affirmed.