author: George Rose Smith, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Jess BELT et ux
    76-32
    537 S.W. 2d 378
    Opinion delivered June 14, 1976

      Thomas B. Keys and Robert E. Diles, for appellant.

      Lonnie C. Turner and Warner & Smith, for appellees.
   George Rose Smith, Justice.

In this condemnation suit the highway department is taking 16.07 acres of Mr. and Mrs. Belt’s 78.7-acre tract. The jury fixed just compensation at $10,000. For reversal the condemnor argues that it should have been permitted to show, by cross-examining Mr. Belt, that five years after the taking the Belts sold eight of their remaining acres for $35,000. We agree with the condemnor.

On direct examination Belt testified to “before and after” values of $40,000 and $25,000, entitling the Belts to $15,000. On cross-examination counsel asked if Belt had not listed part of his remaining land for sale. Upon objection to that question the trial judge directed that the matter be heard in chambers. There, after some discussion, the judge announced that he would allow proof of a sale within a year or two after the taking, but a sale four or five years after the taking would be too remote.

We infer that neither attorney knew the details of the sale, which apparently was not a matter of record. Belt was brought into chambers and testified, upon further cross-examination, that about five years after the taking he had contracted to sell eight of the remaining acres for $35,000. The court adhered to its ruling that the sale was too remote.

The court was mistaken in excluding the transaction solely because it occurred five years after the taking. Many circumstances might be pertinent to the issue of remoteness. The appellees argue, for instance, that all property near the Arkansas River was shown to have been rising in value and that the condemnor failed to prove similarity between the 8-acre tract and the 16.07 acres being condemned. Such considerations, however, were open to further exploration with regard to their bearing upon the issue of remoteness. Inasmuch as the matter of the 8-acre sale arose somewhat abruptly upon cross-examination, the condemnor could not be expected to make a proffer of proof with respect to all related facts. See our discussion in Washington Nat. Ins. Co. v. Meeks, 249 Ark. 73, 458 S.W. 2d 135 (1970).

There is also the pertinent issue of credibility. Belt had testified that he had sustained a loss of $15,000 as a result of the condemnation. He had valued the remaining 62.63 acres at $25,000 as of the date of the taking. Yet, before the trial, he had sold only 8 of those acres for $35,000. It may be, as counsel argue, that the enhancement in value was attributable to something other than the highway construction project for which the land was being taken. But there is no unfairness in requiring Belt to explain to the jury the apparent inconsistency in his positions as condemnee and as seller. Needless to say, the testing of credibility is one of the basic reasons for allowing counsel wide latitude in cross-examination. Arkansas State Highway Commn. v. Dean, 247 Ark. 717, 447 S.W. 2d 334 (1969).

Reversed.


source: Caselaw Access Project

author: J. Fred Jones, Justice. Jorny A. Fogleman, Justice,

license: Public Domain

text:
    John M. PRIDDY et al v. MAYER AVIATION, INC.
    75-347
    537 S.W. 2d 370
    Opinion delivered June 14, 1976

      Coleman, Gantt, Ramsay & Cox; John Lile; and Barber, McCaskill, Amsler & Jones, for appellants.

      Gibson & Gibson, P.A.; Laser, Sharp, Haley, Young & Boswell, and Smith, Williams, Friday, Eldredge & Clark, by: William H. Sutton and Hermann Ivester, for appellee.
   J. Fred Jones, Justice.

John M. Priddy, d/b/a Priddy Insurance Agency, and Utica Mutual Insurance Company, his insurance carrier for errors and omissions, bring this appeal from a declaratory judgment rendered on the petition of the appellee, Mayer Aviation, Inc.

The facts, as gathered from the testimony, appear as follows: The appellee Mayer Aviation, Inc., hereafter referred to as Mayer, was engaged in crop dusting operations by distributing chemicals, including 2-4-D, on growing crops from the air by airplane. Mayer obtained his liability insurance coverage through the appellant insurance agent Priddy. Prior to August, 1970, Priddy had obtained the required coverage for Mayer’s operations through brokers in policies issued by North American Insurance Company and Lloyd’s of London. Mayer had obtained favorable information concerning liability coverage for his type of operation in policies being written by Pan American Fire and Casualty Company through its underwriters, Aviation Office of America, hereafter referred to as AOA. Mayer requested Priddy to obtain coverage through AOA and he paid Priddy approximately $5,000 as intended insurance premium for the coverage requested.

It appears that in order to distribute the chemical 2-4-D it was necessary to have special license from the Arkansas State Plant Board, and in order to obtain the license it was necessary to file a copy of liability insurance policy with the Board as a condition precedent to issuing the license. Priddy made application to AOA for the coverage requested by Mayer but the application was refused because of Mayer’s past year’s loss experience. It appears that when the application was refused by AOA, Priddy intended to place the coverage with one of the original insurers, North American or Lloyd’s of London, but failed to do so. In the meantime, however, in order to obtain a renewal of Mayer’s license to distribute 2-4-D, it appears that Priddy simply altered a copy of a similar policy he had obtained from Pan American through AOA for a Mr. King and filed the altered copy, showing Mayer as the insured, with the Plant Board and Mayer’s license was issued. It appears that Mayer thought he had the coverage he had requested until he was unable to find his policy following rumors of pending claims against him for damages to crops growing out of his operation. When he was unable to find his policy, he obtained a copy from the Plant Board and upon contacting Pan American was advised that no such policy had been issued to him by that company.

It appears that when Mayer advised Priddy of the pending claims and Pan American’s denial that it had issued the policy or authorized a binder, Priddy admitted he had not placed the coverage. Priddy advised Mayer of Priddy’s own coverage under an errors and omissions policy issued by Utica Mutual and advised Mayer he would have the same protection under that policy as he would have had if the policy coverage he had requested had been obtained.

Two lawsuits, alleging damages to crops in the total amount of approximately $168,000, were filed in circuit court against Mayer, and on February 8, 1974, Mr. Mayer filed in chancery court his petition for declaratory judgment from whence comes this appeal. In his petition Mayer alleged that on or about August 5, 1970, he contracted with Priddy to provide insurance liability coverage for his operation of aircraft in the application of agricultural chemicals. He alleged that Priddy allegedly did provide the coverage by Pan American under policy No. AC6-3-1281, and that he paid a premium to the defendant Priddy for the coverage which was to expire on August 5, 1971; that in July, 1971, claims arose for damages to crops caused by his operation; that he called on Pan American to take action because of its liability coverage, but that Pan American denied it had issued any policy to him. He alleged that a copy of the alleged policy contract was in the possession of Pan American and he believed at all times he did have liability coverage for damage to crops in the operation of his business. He alleged that the matter had been investigated by the Arkansas insurance commissioner who apparently determined that no valid policy had been issued by Pan American, and that Priddy had acted in error, omission, negligence and/or fraud in connection with the matter. He alleged that subsequent to July, 1971, there had been filed against him lawsuits in circuit court for alleged damages occurring in July, 1971, growing out of his operation during July, 1971, and that lawsuits were then pending against him in the approximate amount of $168,000 for alleged damages occurring during July, 1971. He alleged that he had given notice to the defendant Utica Mutual Insurance Company who had insurance coverage under policy No. 6456-LE for errors, negligence, omissions and/or fraud on the part of the defendant Priddy but that Utica had denied liability. He alleged that he was entitled to legal aid and expenses sustained from either Pan American or Utica Mutual and for the purposes of defending the pending litigation or settlement of same if proper. He alleged that he was presently in the position of not knowing what his best procedure would be to protect his interest due to the actions of the defendants; that he was having to expend money for legal services without the assistance of the defendants, and that he needed their assistance. He alleged that since his legal position as to insurance coverage had not been passed on by a court, his future liability would depend to a large extent on the question of his insurance coverage and the acts of the defendants in connection therewith, and that without such adjudication he would suffer irreparable damage to his business because of the serious consequences of the liability involved. He alleged that either Pan American or Utica Mutual should provide the coverage and assistance for which he contracted and paid to the defendant Priddy. He prayed for a declaratory judgment against all the defendants jointly and severally or for declaratory judgment as to which one of the defendants is responsible for the present and future damage that he had suffered and will suffer.

Priddy filed a response and cross complaint denying the material allegations in the petition for declaratory judgment and alleged that if the policy was not issued as alleged in the petition, it was due to simple negligence on his part and that Utica Mutual Insurance Company should take over his defense and pay any judgment rendered, up to the applicable limits of its obligation to him under its policy. He prayed that the petition be denied and in the alternative that it be denied in so far as it seeks relief from him; and, in the alternative, that if any acts of his caused the petitioner to not have coverage, that Utica Mutual, his errors and omissions carrier, should provide his defense and pay any judgment rendered against him.

Utica Mutual and Pan American demurred to the petition on the grounds that the chancery court was without jurisdiction of the subject matter.

On March 14, 1974, Priddy filed a separate answer in which he denied the allegations in the petition for declaratory judgment and specifically denied that he acted in error, omission, neglect and/or fraud as alleged in the petition.

On March 15, 1974, Utica filed a demurrer to the petition on the grounds that the petition did not state a cause of action against it and that it was not subject to a direct action by Mayer even if it had coverage for the errors and omissions of Priddy as alleged in the petition. On May 24, 1974, Pan American filed a separate demurrer to the petition on the ground of defect in parties defendant, and on June 19, 1974, Mayer filed a motion to strike the allegation of fraud by Priddy from his petition and the motion was granted. On September 3, 1974, Priddy filed a third party complaint making the various plaintiffs in the circuit court action parties defendant and prayed that they be bound by the final ruling of the chancellor on the petition for declaratory judgment.

On September 23, 1974, the chancellor entered an order denying the demurrers and motions to dismiss and finding that all interested parties had been joined. He gave 20 days in which to answer or plead.

On October 1, 1974, Priddy amended his answer and cross complaint by praying attorney’s fees against Utica and on October 2 Utica filed a response denying the allegations in the petition; denying that the acts of Priddy constituted acts of error, omissions, etc. In the alternative it alleged that it would not be liable for Priddy’s defense in the litigation, and as a second alternative it alleged it would in no event be liable for any amount in excess of the amount of insurance Priddy was supposed to have contracted for. On November 12, 1974, the chancellor entered an order, at the request of Priddy, dismissing his cross complaint as to statutory penalty and attorney’s fees against Utica without prejudice.

In answer to interrogatories propounded by Pan American, Priddy answered that he does not contend Pan American issued the policy in question or authorized him to do so. He answered that he deposited the premium he collected in his agency account. He answered that he advised Mayer that his application had been submitted and subsequently when informed of a possible loss, he advised Mayer that his coverage was in effect as he, Priddy, thought he had obtained the replacement of coverage through Mayer’s previous insurers. He answered that he mailed Mayer’s application to AOA in Beaumont, Texas, whom he understood to be the underwriter for Pan American; that he did not mail a premium check and was advised by AOA that it could not accept the risk because of losses sustained by previous carriers. On February 11, 1975, the chancellor ordered and directed Utica to submit for inspection any errors and omissions policies issued to or in favor of Priddy.

At the hearing on the merits Priddy testified as above indicated and set out, and following final hearing Pan American demurred to the evidence and the demurrer was overruled. Utica demurred to the evidence on the grounds of lack of allegation of privity and no substantial evidence. Priddy demurred to the evidence for insufficiency and because the petition did not allege acts of negligence. The demurrers were overruled, and on April 24, 1975, the chancellor entered declaratory judgment as'follows:

Upon the pleadings and proof the court finds:
1. All demurrers not heretofore specifically overruled are now overruled and this court finds the complaint states a cause of action in equity and this court has jurisdiction to issue a declaratory judgment. Jackson v. Smith, 366 S.W. 2d 278 (1963).
2. That the defendant, John M. Priddy, was negligent in failing and omitting to obtain aircraft liability insurance coverage for Mayer Aviation, Inc. from August 5, 1970 to August 5, 1971; and,
3. At the time of the said negligence of John M. Priddy he was insured under the terms of a contract of insurance covering his errors and omissions as an insurance agent issued by the defendant, Utica Mutual Insurance Company; and,
4. That the liability coverage to have been obtained by Priddy for Mayer was $25,000.00 per occurrence and $100,000.00 aggregate; and,
5. There are presently pending two cases in the Circuit Court of Lincoln County, Arkansas, against Mayer Aviation, Inc. Nos. 2047 and 2048, arising out of alleged tortious aerial application of herbicides during the period from August 5, 1970, to August 5, 1971.
IT IS THEREFORE by the court adjudged and declared as follows:
(1) The defendant, John Priddy, shall defend the two lawsuits, Cases 2047 and 2048, referred to in the findings hereinabove, for and on behalf of the plaintiff, Mayer Aviation, Inc., arising from the two aforementioned cases, up to $25,000.00 per occurrence and up to $100,000.00 in the aggregate; and,
(2) It is the judgment of this court that a contract of insurance issued by the defendant, Utica Mutual Insurance Company, insuring the errors and omissions of the defendant, John M. Priddy, was in force during the period of August 5, 1970, to August 5, 1971.
(3) The complaint of the plaintiff against Pan American Fire and Casualty Insurance Company should be, and is hereby, dismissed for want of equity.

The appellant Priddy first contends that the chancellor erred in overruling his demurrer to the evidence. He argues in support of this contention that the petition for declaratory judgment failed to allege acts of negligence on the part of Priddy and failed to allege that Priddy’s acts were the proximate cause of any damage sustained by Mayer. We do not agree with the appellant’s contention. Mayer alleged that he entered into a contract with Priddy to provide insurance liability coverage and paid Priddy an insurance premium for such coverage; that Priddy allegedly obtained the coverage from Pan American but this was denied by Pan American. He alleged that following an investigation by the insurance commissioner, Pan American’s denial was confirmed and that Priddy had acted in error, omission and neglect. He alleged that he was having to spend money for legal services and will be further damaged unless the rights and relationship of the parties are determined. We conclude that the petition stated a cause of action against Priddy for breach of contract with sufficient clarity for a declaratory judgment.

Priddy also argues that since the appellee Mayer failed to allege and prove a written contract with Priddy, the chancellor should have dismissed the action. He argues that the declaratory judgment act only authorizes construction of written contracts. Ark. Stat. Ann. § 34-2502 (Repl. 1962) provides as follows:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.

The construction or validity of a contract to procure insurance coverage is not really involved on this appeal. Section 34-2504 provides as follows:

The enumeration in Sections 2, 3 [§§ 34-2502, 34-2503] and 4 does not limit or restrict the exercise of the general powers conferred in Section 1 [§ 34-2501], in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.

Furthermore, § 34-2501 provides: “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.” And, § 34-2511 provides as follows:

This Act [§§ 34-2501 — 34-2512] is declared to be remedial; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.

Appellant Priddy further contends that the chancery court was without jurisdiction to entertain an action for declaratory judgment adjudging him guilty of a tort. Chancery courts clearly have jurisdiction to render declaratory judgments where the subject matter of the declaration is within equity jurisdiction. Jackson v. Smith, Chancellor, 236 Ark. 419, 366 S.W. 2d 278 (1963). Appellant Priddy did not demur to the petition for declaratory judgment, nor did he move to have the cause transferred to law for lack of jurisdiction. In Stolz v. Franklin, 258 Ark. 999, 531 S.W. 2d 1 (1975), this court said:

In the absence of such a motion, [to transfer] the chancery court may, in its discretion, transfer the case on its own motion or proceed to trial on the merits. Sledge-Norfleet Co. v. Matkins, 154 Ark. 509, 243 S.W. 289; Catchings v. Harcrow, supra. Where a defendant has answered and not reserved any objection to the jurisdiction of the court on the ground that there is an adequate remedy at law, he cannot insist on it at the hearing unless the court is wholly incompetent to grant the relief sought. Reid v. Karoley, supra; Whitten Developments, Inc. v. Agee, supra.

Priddy alleged in his response and cross complaint that if the policy was not issued by Pan American as alleged in the petition for declaratory judgment, it was because of simple negligence on his part. In the declaratory judgment with respect to Priddy the chancellor found: “That the defendant, John M. Priddy, was negligent in failing and omitting to obtain aircraft liability insurance coverage for Mayer Aviation, Inc. ...” And, in effect, found that Priddy was obligated to provide a defense to the lawsuits filed against Mayer, and to assume such obligations of providing such insurance coverage he agreed to obtain for Mayer and failed to obtain. It was more or less admitted in oral argument that this was the intent and effect of the chancellor’s holding and judgment, and that Priddy was not directed to personally assume the defense and pay such judgments as might be rendered against Mayer in the circuit court cases pending against him. Priddy unequivocally admitted he was negligent, but we conclude that the complaint and judgment against him sounded in contract and not in tort and the chancery court was not wholly without jurisdiction to render the judgment that was rendered.

It is quite true that even in contracts a court of equity is not competent to afford redress by way of compensation or damages for a mere breach of contract, where the remedy at law is plain, adequate, and complete, and where no peculiar equity intervenes. Cockrell v. Warner, 14 Ark. 345 (1854); Carroll v. Wilson, 22 Ark. 32 (1860); Cosby v. Hurst, 149 Ark. 11, 231 S.W. 194 (1921). But failure to plead lack of jurisdiction in equity because of an adequate remedy at law waives this objection to jurisdiction on appeal. Reid v. Karoley, 232 Ark. 261, 337 S.W. 2d 648 (1960); Stolz v. Franklin, supra. Since the chancery court had jurisdiction the appellant IViddy’s argument concerning his right to a jury trial is without merit. Ark. Const. Art. 2, § 7; State v. Churchill, 48 Ark. 426, 3 S.W. 352.

The appellant Priddy contends that the chancellor erred in admitting evidence prejudicial to Priddy. This assignment relates to evidence of Utica’s insurance coverage on Priddy for his errors and omissions. We find no error in this connection. Testimony was to the effect that when Mayer learned that Priddy had not procured coverage as agreed, and confronted Priddy with that fact, Priddy assured Mayer that he would have the same coverage under Priddy’s policy from Utica. Utica Mutual was brought into the declaratory judgment action by Mayer as a necessary party. See Ark. Stat. Ann. § 34-2510 (Repl. 1962). Furthermore, Priddy cross complained against Utica and sought relief against Utica under his errors and omissions policy.

Appellant Priddy also contends that in any event, he should be liable to Mayer for no more than the unauthorized premiums he had collected. This contention is prematurely presented and is, therefore, without merit. The chancellor did not render a money judgment for damages against Priddy. The chancellor did not rule on the extent of Priddy’s liability to Mayer in damages, if any, but only ruled on Priddy’s obligation to Mayer as a result of Priddy’s breach of their agreement.

The appellant Utica contends that the chancellor did not have jurisdiction pertaining to the subject matter of the claim against it. This contention is likewise without merit. Utica filed a demurrer for want of jurisdiction, but did not request a transfer to circuit court because there was an adequate remedy at law: We have held a number of times that the proper method of procedure in this type situation is by a motion to transfer and not by demurrer. The Church of God in Christ v. The Bank of Malvern, 212 Ark. 971, 208 S.W. 2d 770; Higginbotham v. Harper, 206 Ark. 210, 174 S.W. 2d 668; Reid v. Karoley, supra. Utica argues that it should not have been subject to this declaratory judgment because its contract with Priddy was not a justiciable issue. In Andres v. First Ark. Dev. Fin. Corp., 230 Ark. 594, 324 S.W. 2d 97 (1959), we said:

Our declaratory judgment act (§ 34-2501 et seq, Ark. Stats.) was not intended to allow any question to be presented by any person; the matters must be justiciable. In Anderson on “Declaratory Judgments” 2nd Ed. § 187, the general rule is stated as to declaratory judgments:
Since purpose of the declaratory relief is to liquidate uncertainties and interpretations which might result in future litigation it may be maintained when these purposes may be subserved. The requisite precedent facts or conditions, which the courts generally hold must exist in order that declaratory relief may be obtained, may be summarized as follows: (1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy; in other words, a legally protectable interest; and (4) the issue involved in the controversy must be ripe for judicial determination.

It would appear from the evidence in the case at bar that Mayer did have a legally protectable interest under the errors and omissions policy Utica issued to Priddy. There is no contention that a justiciable issue was absent in Priddy’s cross-complaint against Utica. This court has held that in a declaratory judgment action between an insured and insurer disputing the coverage of a liability policy, an injured party possibly covered by the policy is a proper party. So. Farm Bur. Cas. Ins. Co. v. Robinson, 236 Ark. 268, 365 S.W. 2d 454 (1963). The case at bar resembles Robinson except that in the case at bar the declaratory judgment action was brought by the injured party. The record indicates that Utica disputes the extent of its liability under the errors and omissions policy. That issue was not determined by the chancellor and is still available to Utica. The chancellor made no attempt to settle the issue as to the extent of Utica’s liability under its policy to Priddy. He only found that Priddy had such policy issued by Utica and adjudged that the policy was in effect during the period of August 5, 1970, to August 5, 1971.

The decree is affirmed.

Fogleman, J., concurs.

Jorny A. Fogleman, Justice,

concurring. I concur in the majority opinion, but I feel that I should state the reasons for my agreement on the jurisdictional question. I deplore the tendency to seek declaratory judgments in chancery court when the anticipated action would otherwise be a matter for jury trial. For this reason, such actions for a declaration of rights should always be carefully scrutinized for the basis of equity jurisdiction. We have held, and properly so, that the mere filing of an action for declaratory judgment does not give the chancery court any jurisdiction it would not otherwise have and that courts of equity could render declaratory judgments only where the subject matter of the declaration is within equity jurisdiction. Jackson v. Smith, 236 Ark. 419, 366 S.W. 2d 278. See also, Robinson v. Morgan, 228 Ark. 1091, 312 S.W. 2d 329. When the subject matter is such that a chancery court is totally devoid of power to interfere, it is not necessary that the question of jurisdiction be raised in any particular manner or at any particular time. Roper v. Rodgers, 249 Ark. 416, 459 S.W. 2d 419; Robinson v. Morgan, supra.

I do not take this to be a case in which the chancery court is totally devoid of power. As I read the petition of Mayer Aviation, Inc. and the cross-complaint of Priddy, they partake of the nature of an action for specific performance, and did not sound in tort. It seems that the weight of authority supports the view that a prospective insured may elect to sue for negligent failure to obtain or deliver an insurance policy either ex delicto or ex contractu. Ursini v. Goldman, 118 Conn. 554, 173 A. 789 (1934); Wiles v. Mullinax, Jr., 267 N.C. 392, 148 S.E. 2d 229 (1966); Hall v. Charlton, 447 S.W. 2d 5 (Mo. Ct. App. 1969); Pittman v. Great American Life Ins. Co., 512 S.W. 2d 857 (Mo. Ct. App. 1974); Winans-Carter Corp. v. Jay & Benisch, 107 N.J. Super. 268, 258 A. 2d 131 (1969); Waldon v. The Commercial Bank, 50 Ala. App. 567, 281 S. 2d 279 (1973); MacDonald v. Carpenter & Pelton, Inc., 31 A.D. 2d 952, 298 N.Y.S. 2d 780 (1969).

There was an election here to proceed upon the contract theory. The inquiry then turns to the jurisdiction of equity, which ordinarily cannot be invoked in an action for breach of contract. But it is within the power of a court of equity to award damages for breach of contract when the relief sought is specific performance. Loveless v. Diehl, 236 Ark. 129, 235 Ark. 805, 364 S.W. 2d 317; Ashworth v. Hankins, 241 Ark. 629, 408 S.W. 2d 871. Equity does have power to order specific performance of a contract to insure or to deliver a policy of insurance, even though a loss has occurred, if the remedy at law is inadequate. Henry Clay Fire Ins. Co. v. Grayson County State Bank, 239 Ky. 239, 39 S.W. 2d 482 (1930); Collins v. Aetna Ins. Co., 103 Fla. 848, 138 S. 369 (1931); Gerrish v. German Ins. Co., 55 N.H. 355 (1875); Bohnsack v. Detroit Trust Co., 292 Mich. 167, 290 N.W. 367 (1940), 71 Am. Jur. 2d 137, Specific Performance § 106. Where the chancery court has power to act on the subject matter, but jurisdiction depends upon the inadequacy of the remedy at law, the jurisdiction may be questioned only by a motion to transfer and a failure to move for such a transfer is a waiver of the jurisdictional question. Stolz v. Franklin, 258 Ark. 999, 531 S.W. 2d 1 (1975); Titan Oil & Gas, Inc. v. Shipley, 257 Ark. 278, 517 S.W. 2d 210. A demurrer will not be adequate to raise the question. Reid v. Karoley, 232 Ark. 261, 337 S.W. 2d 648.


author: J. Fred Jones, Justice.

text:
    Juan CENTENO v. STATE of Arkansas
    CR 75-170
    537 S.W. 2d 368
    Opinion delivered June 14, 1976

      Rodney T. Chambers, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry R. Kirkpatrick and Robert A. Newcomb, Asst. Attys. Gen., for appellee.
   J. Fred Jones, Justice.

The appellant Juan Centeno was charged on several counts of burglary and grand larceny and was placed in the county jail pending trial. At his trial for burglary and larceny of guns from the Sam Grumpier home, the jury was unable to agree on the burglary charge but found him guilty of grand larceny. The jury was unable to reach a decision as to punishment and the trial judge sentenced the appellant to twelve years in the Arkansas Department of Correction.

On appeal to this court Centeno has designated the following points on which he relies for reversal:

The court erred in allowing appellee to introduce evidence of appellant’s flight from confinement.
The court erred in allowing the appellee to ask questions of irrelevant matters prejudicing the jury.

We find no merit to either assignment.

At the trial of the case the sheriff was permitted to testify that after the appellant had been arrested and placed in jail he escaped from the jail and was again apprehended. The appellant contends that this testimony was inadmissible and prejudicial to him in the trial of the charge on which he was being tried. He argues that since he was incarcerated in jail under charges of having committed several separate felonies, testimony pertaining to his escape from jail would be inadmissible as evidence of guilt on the particular charge for which he was being tried as distinguished from the other charges pending against him.

The appellant is apparently asking us to adopt an exclusionary rule discussed in Underhill’s Criminal Evidence § 373, 5th ed., 1956, and 22A C.J.S. § 631 (1961), to the effect that evidence of an attempted escape by a prisoner in jail awaiting trial for two distinct crimes is not relevant to show that he is guilty of either. Although this exclusionary rule was followed by other state courts in two early cases, People v. McKeon, 64 Hun. 504, 19 N.Y.S. 486 (1892), and State v. Crawford, 59 Utah 39, 201 P. 1030 (1921), it has been rejected by several jurisdictions in more recent cases. State v. Hudson, 491 S.W. 2d 1 (Mo. App. 1973); Archie v. State, 488 P. 2d 622 (Okla. Crim. 1971); People v. Neiman, 90 Ill. App. 2d 337, 232 N.E. 2d 805 (1967); Fulford v. State, 221 Ga. 257, 144 S.W. 2d 370 (1965); Chapple v. State, 528 S.W. 2d 62 (Tenn. 1975). The rationale applied in these more recent cases is that the question of whether an escape shows consciousness of guilt of the offense on trial, when the defendant is also charged with other offenses, is a question of fact for the jury, going to the weight of the evidence, rather than a question of law for the court, going to the admissibility of the evidence. In Arkansas, evidence of an accused’s flight is a circumstance to be considered along with other evidence in determining the accused’s guilt. Murphy v. State, 255 Ark. 90, 498 S.W. 2d 884 (1973); Rowe v. State, 224 Ark. 671, 275 S.W. 2d 887 (1955). Thus, in Arkansas, the words of the Illinois Court in People v. Neiman, supra, for rejecting the exclusionary rule, are applicable.

It would seem inappropriate to hold evidence of attempted escape inadmissible against an accused who was awaiting trial on various charges, and to admit such evidence against the accused who was charged with only one offense. Such procedure would reward the professional criminal and punish the neophyte.

Also, in Fulford v. State, supra, the Supreme Court of Georgia said:

It would place upon the State an impossible burden to prove that one charged with multiple violations of law fled solely because of his consciousness that he committed one particular crime. It is better logic to infer that the defendant, who is charged with several offenses, fled because of a conscious knowledge that he is guilty of them all.

In Chapple v. State, supra, the Court of Criminal Appeals of Tennessee said: “[W]e think the attempted escape when in confinement on both of the charges would be relevant on the trial of either.”

The appellant’s second point is directed at various names and Social Security numbers discovered by the investigating officers in connection with their investigation. Other witnesses had testified that the appellant had used an alias in pawning guns allegedly taken from the Crumpler residence. In Glover v. State, 194 Ark. 66, 105 S.W. 2d 82 (1937), this court said:

It is an accepted rule that a relevant fact will not be rejected because not sufficient in itself to establish the whole or any definite portion of a party’s connection, “but all that is required is that the fact must legitimately tend to prove some matter in issue, or to make a proposition in issue more or less probable. Indeed, it is sufficient if the fact may be expected to become relevant in connection with other facts, or if it forms a link in the chain of evidence necessary to support a party’s contention, although requiring other evidence to supplement it.” 22 C.J. § 91, page 164,

The appellant also argues that the trial judge made prejudicial comments in connection with the Social Security numbers. The trial judge inquired whether the appellant actually used one of the spurious Social Security numbers in connection with the transaction involved and the answer was that he did not. Furthermore, the appellant failed to object to the judge’s comments as comments on the evidence and, therefore, waived his right to argue this issue on appeal. Powell v. State, 231 Ark. 737, 332 S.W. 2d 483 (1960). The appellant also argues that the court erroneously permitted cross-examination of the appellant concerning his guilt in other criminal activities. We find no merit in this contention. Butler v. State, 255 Ark. 1028, 504 S.W. 2d 747 (1974).

The judgment is affirmed.


author: John A. Fogleman, Justice.

text:
    David A. OWEN and Juanita OWEN v. Dr. F. M. WILSON et al
    76-4
    537 S.W. 2d 543
    Opinion delivered June 21, 1976

      McMath, Leatherman & Woods, for appellants.

      Frierson, Walker, Snellgrove & Laser; Barrett, Wheatley, Smith & Deacon, and Cathey, Goodwin & Hamilton, for appellees.
   John A. Fogleman, Justice.

David A. Owen underwent abdonimal surgery by Dr. F. M. Wilson, assisted by Dr. Henry S. Keisker, on February 6, 1969, in the operating room at St. Bernard’s Hospital in Jonesboro. On June 10, 1975, Owen and his wife filed the complaint in this action against Drs. Wilson and Keisker and employees of the hospital, alleging that the physicians negligently closed the incision made for the operation without removing a surgical instrument they had introduced into his body and that the hospital employees had negligently failed to count the surgical instruments used. The physician defendants and Aetna Casualty & Surety Co., the carrier for the hospital, denied negligence and pleaded the statute of limitations. Ark. Stat. Ann. § 37-205 (Repl. 1962). Each of them filed a motion for summary judgment with supporting affidavit. The motions were based upon the statute. The trial court granted these motions and we affirm.

The facts considered were those stated in affidavits by the physicians, the administrator of the hospital and by appellants. Viewed in the light most favorable to appellants, these affidavits showed that:

Dr. F. M. Wilson performed a right hemicolectomy on David A. Owen on February 6,1969. He was assisted by Dr. Henry W. Keisker. There was no instrument count at the end of the operation before the incision was closed. Appellant had an infection in the area of the surgery and remained in the hospital for 23 days. The infection continued for some four months thereafter. Appellant was seen by Dr. Wilson on nine visits by the patient, the last on January 20, 1970, for routine postoperative care. On the last occasion appellant complained of réctal bleeding. Appellant, not having regained his strength two years after the operation, sought and obtained treatment by a chiropractor between June, 1971, and January 18, 1975. Appellant had diarrhea most of the time for six years following the surgery and on two occasions — April 11, 1973 and October 2, 1973 — had emergency treatment prescribed by Dr. G. D. Poole and Dr. Bascom P. Raney, respectively, at St. Bernard’s Hospital. Finally appellant went to Dr. Wilson on January 28, 1975, thinking that his condition must have been related to the surgery. When he told Dr. Wilson of his suffering from diarrhea, this physician ordered X-rays, which disclosed a hemostat or surgical clamp in appellant’s abdomen. Appellant was told by the doctor that the clamp had been left inside him by mistake at the time of the 1969 surgery. On February 19, 1975, Dr. Buckman of Little Rock removed a six-inch surgical scissors from appellant’s abdomen. No X-rays or other procedures which would have disclosed the presence of the surgical instrument had been ordered or taken prior to those taken in January 1975.

Both physicians and the hospital administrator denied that the presence of the surgical instrument was concealed from the patient. Dr. Wilson and Dr. Keisker each stated that he had no knowledge or reason to believe or suspect the presence of the surgical instrument prior to the X-rays Dr. Wilson ordered taken. The hospital administrator stated that no employee of the hospital concealed the presence of the instrument from appellant or anyone else.

The applicable statute, Ark. Stat. Ann. § 37-205 (Repl. 1962), reads:

Hereafter, all actions of contract or tort for malpractice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanitaria, shall be commenced within two [2] years after the cause of action accrues. The date of the accrual of the cause of action shall be date of the wrongful act complained of, and no other time.

Appellants rely entirely upon the “continuing tort” theory to prevent the bar of the statute. Under this theory, it is urged that the “wrongful act” commences when the surgeon closes an incision without removing a foreign object he has inserted and continues as long as the object remains undetected. Appellants’ theory is that there was a continuing invasion of the patient’s body by the physician which constituted a continuing tort. Appellants proceed upon the assumption that this court has not heretofore decided whether the “continuing tort” theory operates to toll the statute of limitations and read Williams v. Edmondson, 257 Ark. 837, 520 S.W. 2d 260 as not deciding that question. Appellants properly admit that the theory was advanced in that case. We did reject that theory in Williams, however, when we said that the continuing tort theory best addressed itself to the General Assembly, which has the responsibility for establishing public policy on that issue. Our views on the subject remain unchanged. They were not confined to the particular fact situation there presented. The negligence both here and there took place at the time the physician acted or failed to act. In Williams, it was at the time of reading the X-rays. Here it was at the time of closing the incision without removing the foreign object.

Appellants also argue that even if the statute would operate as a bar to their cause of action, it is unconstitutional and void because it deprives them of property without due process of law in violation of the Fourteenth Amendment to the United States Constitution. They rely in part upon Emberson v. Buffington, 228 Ark. 120, 306 S.W. 2d 326, where we found Ark. Stat. Ann. § 75-915 (Repl. 1957) in violation of § 13, Art. II of the Arkansas Constitution. That statute was considerably different. It completely deprived a certain class, i.e., persons related to the driver of a motor vehicle, of any remedy for damages caused to them by the negligence of the driver while they were passengers in a vehicle driven by him. That is not the case here. Any statute of limitations will eventually operate to bar a remedy and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment. Tipton v. Smythe, 78 Ark. 392, 94 S.W. 678, 7 LRA (n.s.) 714, 115 Am. St. Rep. 44, 8 Ann. Cas. 521. The statutory time within which an action must be brought cannot be judicially pronounced unreasonable unless it is so short as under the circumstances to amount to a practical denial of the right itself. Steele v. Gann, 197 Ark. 480, 123 S.W. 2d 520, 120 ALR 754. We are in no position to say that the legislative determination that two years (rather than the three years provided by the statute in Steele) is such an unreasonably short period of time for those situated like appellants to discover and assert their cause of action, absent fradulent concealment, to deprive them of due process of law or to deprive them of any remedy. It is not contended here that there was any concealment by appellees. There is really little difference in the effect of the “continuing tort” theory and the theory that the statute does not begin to run until discovery of the wrong, which we rejected in Steele v. Gann, supra.

It is true that we did not actually decide the constitutional questions posed here in Williams. We did, however, clearly imply that the act was constitutional by reference to our holding in Carter v. Hartenstein, 248 Ark. 1172, 455 S.W. 2d 918. There we upheld a statute limiting actions for deficiencies in design, planning and supervision of construction of improvements to real estate to four years. It seems that the problems of discovery of hidden defects in structures would be at least as great as in human beings. Humans are conscious of pain, illness, and other symptoms of disorder, but hidden defects in buildings may not be evidenced for many years, and then perhaps only because injuries and damages have been inflicted by reason of them. Still, we found no constitutional infirmity in the statute there involved. The vital question is one of reasonableness, and the courts may not strike down a statute of limitations unless the period before the bar becomes effective is so short that it amounts to a virtual denial of the right itself or it can be said that the legislature has committed palpable error. Tipton v. Smythe, supra; Carter v. Hartenstein, supra; Steele v. Gann, supra; Mills v. Scott, 99 U.S. 25, 25 L. Ed. 294 (1879). See also, Canadian Northern Railway Co. v. Eggen, 252 U.S. 553, 40 S. Ct. 402, 64 L. Ed. 713 (1920); Wichelman v. Messner, 250 Minn. 88, 83 N.W. 2d 800, 71 ALR 2d 816 (1957). In making this evaluation the basic policy reasons for statutes of limitations come into play. They were well expressed in Chase Securities Corp. v. Donaldson, 325 U.S. 304, 65 S. Ct. 1137, 89 L. Ed. 1628 (1945) in these words:

Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. [Citation omitted.] They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. *****

Appellants’ arguments as to constitutionality have been rejected by the Supreme Court of Missouri in considering a statute very similar to the one before us. Laughlin v. Forgrave, 432 S.W. 2d 308 (Mo. 1968). We also must reject appellants’ arguments which might more appropriately be addressed to the General Assembly as policy matters.

The judgment is affirmed.


author: Conley Byrd, Justice.

text:
    Ronald MASON, Incompetent By and Through The Arkansas Bank and Trust Company, Guardian of His Estate v. Jim M. SORRELL
    76-60
    551 S.W. 2d 184
    Opinion delivered June 21, 1976

      Evans, Farrar, Patterson & Farrar, for appellants.

      Laser, Sharp, Haley, Young & Boswell, P.A., for appellee.
   Conley Byrd, Justice.

Because appellant Ronald Mason, incompetent, had a guardian of his estate appointed prior to the date of his injuries, allegedly caused by appellee Jim M. Sorrell on January 10, 1972, the trial court by summary judgment held that his action for personal injuries filed by his guardian, The Arkansas Bank & Trust Company, on April 7, 1975, was barred by the three-year statute of limitations, Ark. Stat. Ann. § 37-206 (Repl. 1962). To sustain the action of the court, appellee contends that appellant is not entitled to the savings clause in Ark. Stat. Ann. § 37-226 (Repl. 1962), which provides:

“If any person entitled to bring any action, under any law of this state, be, at the time of the accrual of the cause of action, under twenty-one [21] years of age, or insane or imprisoned beyond the limits of the state, such person shall be at liberty to bring such action within three [3] years next after full age, or such disability may be removed.”

To avoid the effect of the savings clause, appellee relies upon such cases as Johnson v. Pilot Life Insurance Co., 217 N.C. 139, 7 S.E. 2d 475 (1940) and Dignan v. Nelson, 26 Utah 186, 72 P. 936 (1903) and contends as follows:

“Appellee respectfully submits that a review of the case law applicable to the running of the statute of limitations in cases involving incompetents will readily reveal that the Trial Court’s decision was eminently correct. it seems clear that the cases hold that where a cause of action accrues prior to appointment of a guardian the mere fact that a guardian is subsequently appointed will not toll the running of the statute. On the other hand, the cases just as uniformly hold that where there is a guardian already appointed at the time the cause of action accrues and where the guardian has the authority to prosecute the action, the statute begins to run both as to the guardian and the incompetent at the time the cause of action so accrues.”

The general rule with respect to savings clauses in favor of infants and incompetents is set forth in 54 C.J.S. Limitations of Actions § 235 (1948), as follows:

“As a general rule ünder the various statutes limitations do not run against infants during their minority. The exemptions ordinarily granted to infants, however, do not rest on any fundamental doctrine of the law, but on the legislative will expressed in the statutes; infants may be put on the same footing as adults in this respect, and unless excepted they so stand. In many jurisdictions, by express statutory enactment, or by judicial construction, where the statute excepts persons laboring under disabilities from its operation, even if not mentioning infants specifically, infants are within the saving clause of the statute, if it is purely a statute of limitation, affecting the remedy and not the right, and the statute does not run against them during such disability, even where such infant has a guardian or trustee who might maintain the action in the infant’s name, provided the title or right of action is in the infant. Where the title or right of action vests in a personal representative, guardian, or trustee, who is under no legal disability, it has been held that the statute of limitations begins to run notwithstanding the minority of the beneficiary, and, as discussed supra § 19, where the former is barred by the statute the latter is likewise barred, although there are also authorities holding that a minor may sue within the statutory period after attaining his majority, even where the representative or turstee is barred by the statute. Likewise, where a minor is seeking to toll the statute of limitations, his interest must be such as will enable him to maintain an action in his own name, and, where a suit is a purely derivative one, infancy of plaintiff does not except him from the bar of the statute of limitations.”

The majority rule as above stated is recognized m Johnson v. Pilot Life Insurance Co., supra, but it is there stated that “a different rule obtains in North Carolina” apparently because of the statutory duties and obligations owed by the guardian to the ward.

The result reached in Dignan v. Nelson, supra, arises because of the provisions of the Utah statute which gives possession of lands of an intestate to the personal representative. The court there held that since the statute started running against the administrator it continued to run against the infant.

We can find nothing in our guardian and ward statute that would require us to follow the minority view expressed in the cases cited by appellee when construing the savings clause set forth in Ark. Stat. Ann. § 37-226, supra. Of course, the rule with respect to infants under Ark. Stat. Ann. § 37-226 is equally applicable to incompetents.

It follows that the judgment must be reversed and remanded.


text:
    Ray BEST v. Judy WILLIAMS
    76-71
    537 S.W. 2d 793
    Opinion delivered June 21, 1976
    [Rehearing denied July 19, 1976.]

      Paul K. Roberts, for appellant.

      John F. Gibson Jr., for appellee.
   Conley Byrd, Justice.

Appellant Ray Best and appellee Judy Williams were divorced November 11, 1972. In that decree appellee was awarded for life a one-third interest in 210 acres of land owned by appellant. Following her remarriage and the relinquishment of custody of the two children to appellant, appellee brought an action to partition the 210 acres. The trial court entered an order appointing commissioners to divide the lands in kind. For reversal appellant raises the issues hereinafter discussed.

We find no merit in appellant’s contention that this partition action is prevented by the homestead laws, Ark. Const., art. 9, § 3. As pointed out in Keesee v. Bushart, 203 Ark. 668, 158 S.W. 2d 915 (1942), one may not claim the homestead exemption as to a claimant against whom he does not have an exclusive possessory right — i.e. a homestead exemption cannot be claimed in a partition suit against a co-tenant.

Appellant also complains that the trial court erred in consolidating the partition suit with the original divorce action. Since the divorce depree would not be conclusive of the right of appellee to a partition, we can find no prejudicial error that could result from the consolidation.

Appellant complains that the trial court erred in awarding the appellee in the original divorce action a one-third interest for life in the whole 210 acres instead of designating the specific property to which she was entitled. Not having appealed from that decision within the time permitted by law, the appellant is not now in a position to complain.

Affirmed.


author: Elsijane T. Roy, Justice.

text:
    Edna HICKS d/b/a THE BEAUTY BOX v. ARKANSAS STATE MEDICAL BOARD
    76-13
    537 S.W. 2d 794
    Opinion delivered June 21, 1976

      Kip Glassock, Port Arthur, Tex., and John M. Fincher, of counsel, for appellant.

      Eugene R. Warren, for appellee.
   Elsijane T. Roy, Justice.

Appellant Edna Hicks, a licensed cosmetician, desired to offer ear piercing as a service to her customers.. She filed a petition with the Arkansas State Medical Board (hereafter Board) requesting a declaratory ruling that the piercing of ears was not within the definition of the practice of medicine or surgery. On June 12, 1975, the Board after a hearing decided that ear piercing was encompassed in the phrase “the practice of medicine” as defined in Ark. Stat. Ann. § 72-604 (Repl. 1964). The circuit court affirmed the decision of the Board and from that affirmation comes this appeal.

Appellant first urges that “the findings, conclusions and decision of the Board, affirmed by the circuit court, are based upon an error of law.” Ark. Stat. Ann. § 72-604(1) provides:

(1) The term “practice of medicine” shall mean: (a) holding out one’s self to the public within this state as being able to diagnose, treat, prescribe for, palliate or prevent any human disease, ailment, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, or any physical, mechanical or other means whatsoever; (b) suggesting, recommending, prescribing or administering any form of treatment, operation or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever; (c) the maintenance of an office, or other place to meet persons, for the purpose of examining or treating persons afflicted with disease, injury or defect of body or mind; (d) using the title M.D., M.B., Physician, Surgeon, or any word or abbreviation to indicate or induce others to believe that one is engaged in the diagnosis or treatment of persons afflicted with disease, injury or defect of body or mind, except as otherwise expressly permitted by the laws of this state now or hereafter enacted relating to the practice of any limited field of the healing arts; or (e) performing any kind of surgical operation upon a human being. If any person who does not possess a valid license to practice medicine within this state and who shall not be exempted from the licensing requirements hereunder, shall do any of the acts hereinabove mentioned as constituting the practice of medicine, shall be deemed to be practicing medicine without complying with the provisions of this Act [§§ 72-601, 72-603 — 72-623] and in violation thereof.

We consider the issue raised in this case to be primarily a question of interpretation of the definitional aspects of the statute rather than a question of fact. The testimony of the two doctors at the Board hearing dealt mainly with possible adverse effects from the ear piercing procedure if not properly carried out. However, the Board after its hearing noted that it had “. . . consistently interpreted the practice of surgery as contained in the Arkansas Medical Practices Act as being the penetration of the epidermis by mechanical instruments or appliances . . . ,” and would include the procedure of ear piercing.

At the Board hearing a copy of an advisory opinion issued by the attorney general was introduced. The opinion, relying upon Subsection (e) of 72-604(1), supra, determined that ear piercing was a surgical procedure within the intendment of this subsection and thus could be performed only by a licensed physician or other qualified person acting under physician supervision. The Board premised its determination of the issue to a large extent on the attorney general’s opinion.

The opinions of executive agencies are not, of course, binding upon the court, but are held to some extent persuasive. In Shivers, et al v. Moon Distributors, Inc., et at, 223 Ark. 371, 265 S.W. 2d 947 (1954), we said:

* * * Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the court.

See also McCarley v. Orr, 247 Ark. 109, 445 S.W. 2d 65 (1969).

We cannot agree with the interpretation placed on the statute by the attorney general and the Board. In interpreting statutes “ ... we give words their ordinary and usually accepted meaning in common language [citations omitted],” Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W. 2d 30 (1973); Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 359 S.W. 2d 449 (1962), and avoid resort to “ . . . subtle and forced construction for the purpose of limiting or extending the meaning [citation omitted],” Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W. 2d 881 (1965).

“Surgery” is a word which, commonly defined, embraces a more complex procedure than the relatively simple technique used in piercing ears. Webster’s New International Dictionary, 2nd Ed., defines surgery as:

That branch of medical science, art, and practice, which is concerned with the correction of deformities and defects, the repair of injuries, the diagnosis and cure of diseases, the relief of suffering, and the prolongation of life, by manual and instrumental operations.

Black’s Law Dictionary, Revised 4th Ed., 1968, defines surgery as:

The art or practice of healing by manual operation; that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries.

To the same effect see Random House Dictionary of the English Language, 1966 Ed., and Maloy’s Medical Dictionary for Lawyers. It follows that when we accord the word “surgery” its most commonly accepted definition such definition excludes the process here under review.

We noted in Aetna Life Ins. Co. & Pacific Mutual Life Ins. Co. v. Orr, 205 Ark. 566, 169 S.W. 2d 651 (1943), that:

. . . [SJurgery is defined as: “That branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries. ” (Italics supplied.)

The statutory language at issue herein denominates as the practice of medicine the representation to the public by an individual of those skills which can aid in the palliation or prevention of “ . .. any human disease, ailment, injury, deformity, or physical or mental condition ...” by various methods including surgery.

The case of People v. Lehrman, 251 App. Div. 451, 296 N.Y.S. 580 (N.Y. App. Div. 1937), construed the statutory words “practice of medicine” as related to electrolysis for hair removal. This process involved the penetration of the skin with an electrically charged needle. The court held that the definition in the statute in Lehrman (basically analogous to our own) was never meant to include the process questioned, and the court stated:

Practices such as this have always been held to be matters of personal taste and adornment and not connected with the practice of medicine.

Ear piercing is a simple physical change effected solely to facilitate the wearing of ear ornamentation. It is an uncomplicated penetration of the skin and tissue of the ear lobe by a sharp instrument. The procedure is not as serious as the normal anatomical change customarily wrought by surgery. It is not a corrective undertaking, nor one intended to accomplish a palliative objective. No transformation other than an opening in the ear lobe is created, and it is thus distinguishable from the more conspicuous alteration normal cosmetic surgery is intended to provide.

Although not controlling, we note that in Texas the attorney general, in interpreting a statute similar to our own, ruled that ear piercing did not constitute the practice of medicine. Other states, including Arizona, Virginia, Kansas, New Jersey, Georgia and California, have, through opinions rendered by their respective attorneys general or state medical boards, excluded the piercing of ears as a procedure to be found within the term “the practice of medicine.” Appellee has not cited and our research has not disclosed any decisions to the contrary except the decision involved in this appeal.

We are not unmindful nor unconcerned about possible adverse effects from “uncontrolled ear piercing.” However, we are not at liberty to declare, by judicial interpretation, a procedure “surgery” which is not encompassed by the legislative enactment under consideration.

Reversed.

      Jurisdiction of the Board to determine this issue has not been raised, and we do not consider it in this opinion.


text:
    Tommy KARAM and KAR-MAL, Inc. v. Clyde O. HALK
    75-270
    537 S.W. 2d 797
    Opinion delivered June 28, 1976

      Howell, Price, Howell & Barron, for appellants.

      Wood, Smith & Schnipper, for appellee.
   John A. Fogleman, Justice.

Appellee Clyde O. Halk brought suit against appellants for breach of an agreement relating to the operation of a store and for damages to fixtures and equipment. The case was tried to the circuit judge, without a jury, on September 4 and September 11, 1974. On December 6, 1974, the court sent a memorandum letter to the attorneys for all parties making his findings and fixing the damages to be recovered by appellee. On January 2, 1975, judgment based on the court’s memorandum letter was entered. When writs of execution and garnishment were issued on thisjudgment on August 11, 1975, appellants promptly filed a motion to vacate the judgment and a petition for stay of execution. This motion was denied by order entered September 5, 1975. On September 12, 1975, appellants filed notice of appeal from that order and from the judgment entered on January 2, 1975.

The principal ground for reversal is alleged abuse of discretion by the trial court in not setting aside the judgment. In their motion appellants asserted that, even though the circuit judge, in his letter, instructed the attorneys for appellee to furnish a precedent for judgment, appellants received no communication from the attorneys for appellee or from the court indicating that the precedent had been submitted to the court, that such a precedent had been approved or the date upon which the judgment was entered. Appellants alleged that the first notice they had that judgment had been entered was the issuance of writs of execution and that, by reason of the failure of appellee’s attorneys to submit a copy of the precedent to appellants’ attorneys or to serve a copy of the judgment on them, they were precluded from exercising their right to appeal. Appellants also alleged in their petition for stay of execution that appellee had made no effort to contact appellants to collect the judgment prior to the issuance of execution.

There was a stipulation by the parties that there was no indication in any of the records of appellants’ firm of attorneys or in the memory of any of them of the receipt of a copy of the judgment entered on January 2, 1975, but that said attorneys had received the memorandum letter dated December 6, 1974. The trial court’s order denying appellants’ motions included findings that the memorandum letter was sufficient notice to the parties that judgment would be entered in accordance therewith, that more than one term of court had elapsed between the entry of the judgment and the filing of appellants’ motions, that appellants had failed to establish good cause for vacation of the judgment and that the court was without power to vacate, stay or set aside the judgment.

Appellants argue that appellee and his attorneys, by failing to send them or their attorneys a copy of the precedent for judgment before it was entered, violated Rule le of the Uniform Rules for Circuit and Chancery Courts promulgated by this court on March 1, 1969, and had deprived appellants of their right of appeal by leaving them without any means of determining when the period allowed for giving notice of appeal began to run.

Appellants proceeded under Ark. Stat. Ann. § 29-506 (Repl. 1962) and particularly upon subdivision “Seventh” giving a trial court the power to vacate a judgment after the expiration of the term in which it was entered for unavoidable casualty or misfortune preventing the party seeking relief from the judgment from appearing of defending. They rely not only upon Rule le of the Uniform Rules for Circuit and Chancery Courts, but upon Rule 3 (Praecipe for Orders and Judgments) of the Civil Practice Rules of the Eighteenth Judicial Circuit, filed in the office of the Clerk of this court. The latter rule reads:

Appropriate orders reflecting the action taken by the court on all motions or other pleadings will be prepared by the prevailing party and submitted to the court within five days after the action.

Admittedly this judgment was not entered within five days, but we do not know when the precedent was submitted to the court. We do not agree with appellants’ argument that failure to enter the judgment within the five-day period set out in the rule invalidated it. The time limitation was upon the submission of the precedent and not upon the entry of the judgment. Since the judgment was entered by the court, if it was submitted late, we must presume, in the absence of a contrary showing, that the late submission was permitted by the court for good and sufficient reasons. In this respect, the court’s consideration and action upon a tardily filed precedent is very similar to its consideration of a tardily filed motion for new trial, in which case like presumptions are indulged. Peek v. Meadors, 255 Ark. 347, 500 S.W. 2d 333.

We likewise find no failure to comply with Rule le of the Uniform Rules for Circuit and Chancery Courts, viz:

Attorneys shall serve copies of all of their respective pleadings upon opposing counsel before or at the time of filing, and such papers must indicate the time and method of service.

A precedent for judgment is not, in any sense of the word, a pleading.

The question actually presented is whether the trial court abused its discretion in finding that there was no unavoidable casualty which prevented appellants from protecting their right to appeal. Davis v. McBride, 247 Ark. 895, 448 S.W. 2d 37. We are unable to say that there was. In reaching this conclusion, we take at face value appellants’ assertions that counsel for appellee admitted in a telephone conversation with counsel for appellants that he had not submitted the proposed precedent to counsel for appellants for approval. Still, there were means available to appellants to avoid the situation in which they find themselves. There is no contention that the judgment entered is not in conformity with the memorandum containing the trial judge’s findings. A litigant who makes no inquiry about the entry of a judgment based upon the trial court’s findings for a period of eight months is in poor position to maintain that he is the victim of an unavoidable casualty. See Bickerstaff v. Harmonia Fire Ins. Co., 199 Ark. 424, 133 S.W. 2d 890. Yet it is obvious from appellants’ pleadings that no attention was given the matter after the receipt of the court’s memorandum letter. It is no answer to say that appellee did not show that appellants did nothing. The burden of showing unavoidable casualty and that appellants were diligent and without negligence rested upon them. Davis v. McBride, supra.

A litigant is required to take notice of all proceedings during the pendency of an action to which he is a party. Davis v. McBride, supra. He must keep himself informed of the progress of his case and, when seeking relief from a judgment on account of unavoidable casualty, must show that he himself was not guilty of negligence. This principle has been applied to the very matter involved here, i.e., the failure of a defendant to ascertain that a judgment had been entered until execution was issued. Bickerstaff v. Harmonia Fire Ins. Co., supra. There we said that the trial court did not abuse its discretion in denying a motion to vacate the judgment for unavoidable casualty and that it correctly held that there was a lack of diligence on the part of the defendant.

Appellants’ objection to the judgment was that the amount of the court’s award of damages to fixtures exceeded the amount sought in the prayer in appellee’s complaint and that an award of damages for conversion and deceit was outside the scope of the pleadings, and that there had been no amendment to appellee’s complaint or motion for the pleadings to be amended to conform to the proof to bring these matters within the scope of the pleadings. This objection could have been raised before the entry of judgment. Any error in this respect should have been disclosed by the memorandum letter. Appellants never objected to these features of the court’s findings until after execution had been issued on the judgment. Appellant might have moved for a new trial after the court’s decision and before entry of judgment. Ark. Stat. Ann. § 27-1901, 1904 (Repl. 1962); Doup v. Almand, 212 Ark. 687, 207 S.W. 2d 601; Henderson v. Skerczak, 247 Ark. 446, 446 S.W. 2d 243; Peck v. Meadors, supra; St. Louise Southwestern Railway Co. v. Farrell, 241 Ark. 707, 409 S.W. 2d 341. Appellants also might have filed notice of appeal before judgment was entered. Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W. 2d 203. Yet, the record does not disclose any inquiry about the status of the judgment when more than five days elapsed after the date of the court’s memorandum letter without any indication to appellants that the precedent had been submitted.

Appellants belatedly, in their reply brief, assert that they were also proceeding under the fourth subdivision of Ark. Stat. Ann. § 29-506, which provides for vacation of a judgment for fraud practiced upon the successful party in obtaining the judgment. A thorough review of appellants’ abstract and original brief fails to disclose even a hint of reliance upon fraud as a ground for relief, either here or in the trial court. The original brief placed reliance solely upon unavoidable casualty. Be that as it may, there certainly is no evidence of fraud. The burden of showing fraud rested upon appellants. Karnes v. Gentry, 205 Ark. 1112, 172 S.W. 2d 424. Premature entry of a judgment, even though erroneous, is not a fraud for which a court may vacate its judgment after the expiration of the term under this subdivision. Old American Ins. Co. v. Perry, 167 Ark. 198, 266 S.W. 943. Entry of a judgment for an amount not justified by the facts, as appellants contend was the case here, does not constitute a showing of fraud in the procurement of the judgment. Parker v. Sims, 185 Ark. 1111, 51 S.W. 2d 517. To say the least, there is no indication that fraud was practiced upon the court in the procurement of the judgment so it cannot be said that the section has any application to this case. Turner v. Turner, 221 Ark. 932, 257 S.W. 2d 271.

Of course in the view we take of the matter, it is unnecessary that we consider the question whether appellants had a meritorious defense. For fear that there may be some misunderstanding of our holding, we hasten to emphasize that we are determining only the question whether the circuit judge abused his discretion in ..efusing to vacate the judgment under the circumstances prevailing here. We are not approving or encouraging the entry of a judgment on a precedent prepared by the prevailing party without the adverse party or parties having had an opportunity to see the proposed judgment and make objections to its form, content or language before entry. We simply find no abuse of discretion here.

The denial of appellants’ motion to vacate the judgment entered in this case is affirmed.


text:
    Otis HINTON v. STATE of Arkansas
    CR 76-16
    537 S.W. 2d 800
    Opinion delivered June 28, 1976

      John D. Bridgeforth, court-appointed, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Terry Kirkpatrick, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Otis Hinton was found guilty, by a jury, of the crimes of robbery by use of a firearm, kidnapping and assault with intent to rape. He seeks reversal alleging that the court erred in permitting Mrs. Georgia Ruff, the alleged victim, to identify him, that the evidence was insufficient to prove assault with intent to rape and that his sentence was excessive and constituted cruel and unusual punishment.

The robbery was committed on December 17, 1974, at approximately 7:00 p.m. The robbers took Mrs. Ruff away from her grocery store in Round Pond after one of them had struck her on the head with a pistol. She was forced into the back seat of an automobile which was driven from the scene by one of the robbers to a point on a rural road near Widener. During the trip one of the robbers got into the back seat with Mrs. Ruff. She testified that it was appellant. She said appellant tried to put his hands “up her dress” and when she fought him, he told her to move her hands or he would beat her brains out. She added that when she continued to fight appellant, he hit her three times with a pistol and then returned to the front seat of the car, which was shortly thereafter stopped along the road. Then, according to her, she was directed by appellant to get out of the car and, when she did, both of the robbers started trying to remove her underclothes. She stated that shortly thereafter the two fled when one of them detected the approach of another automobile.

The police investigating the crime, in checking the area where the robbers had stopped their automobile, found a pistol which they traced into appellant’s possession a short time before the robbery. Appellant was taken into custody on December 19 and placed in the St. Francis County jail. He was advised of his constitutional rights. He refused to sign a waiver of his rights and advised the officers that he had an attorney. A “lineup” was conducted on Friday, December 20 at which appellant was identified by Mrs. Ruff as one of the robbers. At the trial she testified that appellant was the one who held a gun on her at the store, struck her in the face with the pistol in her living quarters, got in the back seat of the car with her and tried to put his hand under her dress, and with his companion tried to remove her clothing after they stopped the car. Appellant was charged with the crimes of which he was found guilty by information filed on January 29, 1975.

Appellant’s motion to suppress the lineup identification was heard and denied on August 19, 1975, before the trial commenced. In his motion, appellant alleged that the identification should be suppressed because he was forced to participate in the lineup without the benefit of counsel, and that he was forced to confront the victim in a small hallway with several other prisoners, at which time he was called by name and asked to stand directly under a light in the room. He asserted that the procedure was impermissibly suggestive and gave rise to a substantial likelihood of irreparably mistaken identification.

One facet of appellant’s argument on this point is the fact that the lineup was held without his attorney being present, and, as a matter of fact, without any effort being made to notify the attorney or even ascertain his identity. It is sufficient to say that appellant was not entitled to the assistance of counsel at the lineup conducted before the commencement of prosecutorial proceedings by the filing of an information against him. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411 (1972); Pollard v. State, 258 Ark. 512, 527 S.W. 2d 627; King v. State, 253 Ark. 614, 487 S.W. 2d 596.

We cannot say that there was error in the denial of appellant’s motion to suppress or the circuit judge’s finding that the pretrial identification proceedings were not so impermissibly suggestive as to give rise to any substantial likelihood of irreparable misidentification. There were five persons in the lineup. The victim had viewed an earlier one in which appellant was not a participant and did not identify anyone. She said that she had not looked at a group of pictures shown her by Deputy Sheriff Irwin between the time she reported the incident and the lineup. Appellant contends the group included pictures of him and his brother that were newer and different in characteristics from the others, most of which were “penitentiary pictures.” There was testimony that an officer, by calling appellant by name and directing him to stand under a light, directed attention to him so that Mrs. Ruff immediately connected him with the crime. The evidence on this point is in considerable conflict and we must defer to the judgment of the trial judge on credibility of the witnesses. Anthony King, a jail inmate who was a participant in the lineup said that, after viewing the lineup for four or five minutes, Mrs. Ruff had not identified anyone until the jailer (Buford Hopkins, called “Jackie”) told Otis Hinton to move under the light, calling him by name. Charles Pruitt said “they” told Otis to move under the light, but said that the lineup participants were told to move under the lights “before the people came in.” Appellant said that it was Irwin who directed him, by name, to stand under the light, and that Irwin made a gesture with his hand at the time, and all but put his hand on appellant’s shoulder. He said that he was the first to be directed to move under the light. Appellant denied that he and the others were told to move under the light before Mrs. Ruff came in. Mrs. Ruff testified that nothing was said during the lineup. The jailer testified that he did not say anything to anyone during the course of the lineup.

On the other hand, Mrs. Ruff stated positively that her identification was based upon her observation of appellant on the evening of the crime. She said she was only three feet from him in the store when she first saw him and had opportunities to see his face as the robbers’ automobile passed under lights while she was lying in the floor of the back seat. She said that he was the one who got into the back seat and was trying to put his hand up under her dress and that she was fighting with him.

The central question is whether, viewing the totality of the circumstances, the courtroom identification was reliable, even if we should find that the lineup was impermissibly suggestive. Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972). When we consider the opportunity the witness had to view her assailant during the progress of the crimes committed against her, her attention to her assailant, her certainty of identification at the lineup, at the suppression hearing and in the courtroom, after she had failed to identify anyone in a previous lineup, and the short period of time elapsing between the crime and the lineup, and when we resolve the questions of credibility as to suggestive procedures at the lineup as the trial judge did, we cannot say that the trial court’s finding that there was no substantial likelihood of irreparable misidentification was erroneous.

We find sufficient evidence to raise a question for the jury as to appellant’s intent to rape Mrs. Ruff. We recognize that this intent must be evidenced by some overt act which constitutes the beginning of, or a part of the perpetration of the offense and not merely a preparation therefor. But the intention to have sexual intercourse with the victim by force may be ascertained from acts or words connected with an assault and any overt act toward accomplishment of the purpose. It may be inferred from the circumstances surrounding the assault. See Frederick v. State, 258 Ark. 553, 528 S.W. 2d 362. Appellant argues that, because it was not shown that he ever attempted to remove his clothes, or that he put his person in condition or position to perform the act of sexual intercourse, there was not sufficient evidence of intent. We cannot accept that argument, when all the circumstances are considered. In addition to the testimony about appellant’s conduct in the back seat of the car, Mrs. Ruff said that immediately upon stopping the car and ordering her out of it, the two robbers commenced trying to undress her, removed her underclothing, and when she vigorously resisted them, one of them said to the other “can you get to her” and, when he received the response “not yet,” “throw her over the car,” but both fled soon after they had thrown her over the car when one of the assailants thought he saw another automobile approaching. This evidence was sufficient to support the jury verdict. See McGee v. State, 215 Ark. 795, 223 S.W. 2d 603.

Appellant was sentenced to consecutive sentences of 21 years for robbery, 15 years for use of a firearm, 3 years for kidnapping and 21 years for assault with intent to commit rape, all of which were maximum sentences. He admits that the trial judge has the discretion to make the sentences run consecutively, but argues that for the court to do so when all of the crimes were in one course of events and all were maximum sentences was such an abuse of discretion as to constitute cruel and unusual punishment. First we should say that the court’s discretion includes the discretion to make maximum sentences run consecutively. Actually the sentences would run consecutively unless the trial court deemed a concurrent sentence or sentences best for society and the person convicted. Ark. Stat. Ann. § 43-2312 (Supp. 1975). We cannot say, on the record before us that the trial judge did not act for the best interest of both society and the appellant, whose interests must be balanced.

The constitutional prohibition is directed toward the kind of punishment imposed, not its duration. Williams v. State, 125 Ark. 287, 188 S.W. 826. The fact that punishment is severe does not make it cruel or unusual. Thom v. State, 248 Ark. 180, 450 S.W. 2d 550. We have held that the imposition of a maximum sentence for an offense is not cruel or unusual punishment. Johnson v. State, 214 Ark. 902, 218 S.W. 2d 687. See also Carter v. State, 255 Ark. 225, 500 S.W. 2d 368. We have rejected the argument that the cumulative effect of consecutive sentences makes punishment cruel and unusual. Blake v. State, 244 Ark. 37, 423 S.W. 2d 544. We have also held that making sentences consecutive is not cruel or unusual. Holmes v. State, 257 Ark. 871, 520 S.W. 2d 715; Thom v. State, supra.

The constitutional prohibitions against cruel and unusual punishment are primarily addressed to the legislative branch. Blue v. State, 224 Ind. 394, 67 N.E. 2d 377, cert. den. 330 U.S. 840, 67 S. Ct. 976, 91 L. Ed. 1286 (1946); Brown v. State, 157 Fla. 853, 13 S. 2d 458 (1943). Appellant does not contend that the maximum sentence for any of the offenses of which he was found guilty is cruel and unusual punishment. In order to be judicially held to be so, the statute must provide punishment so excessive and unusual and so disproportionate to the offense committed as to shock public sentiment and violate the judgment of reasonable people concerning what is right and proper under the circumstance. Ex parte Brady, 70 Ark. 376, 68 S.W. 34. In that case, it was said that punishment is not cruel and unusual where the reason for the severity of the punishment is found in the number of offenses committed by the defendant and not in the undue severity and cruelty of the statute. Punishment authorized by statute is never held cruel or unusual or disproportionate to the nature of the offense unless it is a barbarous one unknown to the law or so wholly disproportionate to the nature of the offense as to shock the moral sense of the community. Carter v. State, supra; Geurin v. City of Little Rock, 203 Ark. 103, 155 S.W. 2d 719.

The cumulative effect of our decisions is that the exercise of the court’s discretion to make maximum sentences on each one of multiple offenses consecutive does not in and of itself constitute cruel and unusual punishment. This was the effect of our decision in Thom v. State, supra, where a total sentence of 63 years was imposed, even though it may not have been apparent from reading the opinion without reference to the permissible punishment under the applicable statute for the offense there charged. It is not for us to say that the punishment here is cruel and unusual, unless we could say that it was so disporportionate to the nature of the offenses involved as to shock the moral sense of the community. We cannot. Nor can we say that the punishment is excessive. See Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79.

The judgment is affirmed.