text:
    The DOW CHEMICAL COMPANY v. J. B. and Joy WARMACK
    83-215
    661 S.W.2d 376
    Supreme Court of Arkansas
    Opinion delivered December 12, 1983

      Keith, Clegg & Eckert, for appellant.

      Anderson, Crumpler ir Bell, P.A., for appellees.
   George Rose Smith, Justice.

In 1982 the appellees, husband and wife, agreed to lease fourteen-and-a-third acres of land to the appellant for the production of salt water (brine), from which bromine is to be extracted. When the Warmacks tendered a lease, Dow refused to accept it for the asserted reason that the Warmacks had only a non-participating interest in the minerals and therefore lacked the authority to execute a lease. In what is perhaps a test case the Warmacks brought this suit to compel Dow to accept the lease. The chancellor held that J. B. Warmack, under a printed form of Royalty Deed executed to him in 1962, had only a non-participating interest in the tract’s oil and gas, but he had an unrestricted royalty interest in other minerals and therefore could lease the land for the production of salt water. Dow’s appeal comes to this court under Rule 29 (1) (n).

We are told that the printed form of Royalty Deed has been in use for about fifty years. Since the deed before us differs slightly from that considered in Barret v. Kuhn, 264 Ark. 347, 572 S.W.2d 135 (1978), we shall quote its principal pertinent provisions.

The present conveyance is entitled Royalty Deed. The word “non-participating” does not appear under that title, as it did in Barret. By the granting clause W. T. Pride conveyed to Warmack, subject to the terms, conditions, and reservations that followed, an undivided 10.00/114.64 interest “in and to all of the oil, gas and other minerals” in the tract. After a description of the acreage this sentence was typewritten on the form: “It is the intention of grantor herein to convey, and grantor herein does hereby convey to grantee ten (10) royalty acres, non-participating.”

The precise terms, conditions, and reservations are then stated in the following language, all of which was printed except the words and figures we have italicized:

The grantor herein expressly reserves to himself[,] his heirs or assigns, the exclusive right to lease said lands, or any part thereof, for oil and gas purposes, without interferences, or hindrance upon the part of the grantee, his heirs or assigns; and the grantee herein, his heirs or assigns, shall never be entitled to receive any part of the consideration, cash or otherwise, paid or to be paid, for any oil and gas mining lease heretofore or hereafter executed covering said land, or any part thereof, nor shall the grantee, his heirs or assigns, ever be entitled to receive any part of any delay rentals to defer the commencement of drilling operations provided by any such lease; and the grantee herein, his heirs or assigns, shall not be required to join in the execution and delivery of any oil and gas mining lease covering said land, or any part thereof, in order to convey good title to lessee thereunder; PROVIDED, that the grantor herein expressly covenants with the grantee that no oil and gas mining lease shall ever be executed covering the above land or any part thereof, that shall reserve to the grantor herein, his heirs and assigns, as royalty, less than one-eighth of all the oil and gas produced and saved from said land and this covenant shall be deemed a covenant running with the land.
It is the intention of the parties hereto that the grantee herein, his heirs or assigns shall be entitled to receive hereunder 10.00/14.33 of all oil and-or gas run to the credit of the royalty interest reserved under and by virtue of any oil and gas mining lease now in force and effect covering said land, and under any oil and gas mining lease hereafter executed covering said land, or any part thereof; and in any event the grantee herein, his heirs or assigns shall be deemed the owner of and shall be entitled to receive 10.00/114.64 part of all oil and gas produced and saved from said land, or any part thereof.

The chancellor’s decision was right. As we noted in Barret, with respect to oil and gas the holder of a nonparticipating interest is entitled to his share of the royalty from production, but he does not share in bonuses or delay rentals nor have the right to execute leases. Here the paragraphs we have quoted spelled out the grantee’s nonparticipating interest only in any “oil and gas mining lease,’’ a phrase that was used five separate times in the two quoted paragraphs. The granting clause, however, had conveyed an undivided interest in all oil, gas, and other minerals. Thus the printed form quite evidently excluded all other minerals from the non-participating provisions of the royalty deed.

The appellant argues, however, that the non-participating limitation was extended to all minerals by the typewritten sentence expressing the grantor’s intent to convey "ten royalty acres, non-participating.” We disagree. Typewritten provisions prevail over printed ones only when the two are so contradictory that one must yield to the other. McKinnon v. Southern Bureau Cas. Ins. Co., 232 Ark. 282, 335 S.W.2d 709 (1960). Here there was no irreconcilable conflict in the 1962 royalty deed. The word “non-participating” clarified the reference to ten royalty acres, but there is no necessity for writing that word into the detailed language explaining just why that royalty interest is in fact to be non-participating. Rather to the contrary, the language of the deed defines “non-participating” and is peculiarly applicable to oil and gas leases. For example, it is specified that no oil and gas lease shall ever be executed that reserves a royalty of less than one eighth of the production. A one-eighth royalty is commonplace in oil and gas leases, but that is not so with regard to other mineral leases. Coal leases usually provide a monetary royalty of so much per ton. In this case the proffered salt-water lease provides only for an annual payment to the Warmacks of $25 for each of the ten acres. Such differences between oil and gas leases and other mineral leases confirm our conviction that the royalty deed to J. B. Warmack was intended to be non-participating only as to the oil and gas, not as to other minerals.

Affirmed.


source: Caselaw Access Project

author: John I. Purtle, Justice.

license: Public Domain

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES, Division of Social Services v. Nevader SIMES
    83-189
    661 S.W.2d 378
    Supreme Court of Arkansas
    Opinion delivered December 12, 1983

      Carolyn Parham, for appellant.

      Mike J. Etoch, Jr., for appellee.
   John I. Purtle, Justice.

Appellant denied appellee’s claim for benefits for the medically needy. The circuit court reviewed and reversed, thereby declaring appellee qualified for benefits. Appellant argues on appeal that there was substantial evidence to support the department’s decision. We do not agree with this argument.

On January 8, 1982, the appellee applied for medical benefits for the medically needy. She alleged she was indigent and suffered from ailments which prevented her from doing any substantially gainful work and that such disability had lasted or would last for at least twelve months. The appellee presented the statements of two doctors that she was not able to engage in any substantial, gainful employment and that her condition would continue for at least twelve months. She also presented the oral testimony of herself and her husband. Appellee testified she could not stay up for more than an hour and a half. She was taking at least three different drugs and recently had undergone surgery on both wrists to remove tumors, which had reappeared at the time of the hearing. Among her ailments the appellee identified goiter, tumors on both wrists and her side, anemia, rheumatoid arthritis and ankylosis of the joints. The examining physicians were of the opinion her condition was degenerative and that she should avoid standing, reaching, stooping, pushing, kneeling, pulling and lifting.

On the other hand, the evidence included a statement from a physician that appellee was basically in good health, drove a car when necessary and took care of herself and her disabled husband.

Her claim was denied on the same day it was received. The Fair Hearing Committee agreed with this result as did the medical review team. The trial court held the decision to deny benefits to appellee was not supported by substantial evidence.

The claim in this case is based upon federal law and the Ark. Dept, of Human Services Medical Services Manual, § 3320 (1) (c), which in critical part reads:

Disabled — Physical or mental impairment which prevents the individual from doing any substantially gainful work (for a child under age 18, an impairment of comparable severity) and which has lasted or is expected to last for at least 12 months or is expected to result in death.

Ark. Stat. Ann. § 5-713 (h) (5) (Repl. 1976), a part of the Administrative Procedure Act, provides that a court may reverse the decision of an agency if there is no substantial evidence in the record to support its decision. Williams v. Scott, 278 Ark. 453, 647 S.W.2d 115 (1983). On appeal we give the evidence its strongest probative force in favor of the administrative agency. Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W.2d 689 (1972). In the present case the agency did not present any current evidence of a substantial nature to indicate appellee was able to perform gainful work. On the other hand the appellee presented two physicians’ reports at the June 17, 1982 fair hearing stating she was unable to engage in gainful employment. The reports were not mere conclusions but were supported by detailed findings. The diagnoses included: anemia, anxiety, generalized rheumatoid arthritis and ankylosis. Other evidence revealed the tumors on her wrists and side, thyroid disease, and need for surgery. There was no medical evidence to refute the statements of appellee and her doctors. The evidence in this case is so persuasively supportive of appellee’s claim for disability that fair minded persons could not reach any other finding. Franks v. Amoco Chemical Co., supra.

The burden was upon appellee to establish her claim. We think she did so to such an extent that reasonable people could not conclude otherwise. The trial court used the proper standard of review in its decision. There was not substantial evidence to support the agency’s finding. We, therefore, affirm the holding of the trial court.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Bobby HOPPER v. Mary DENHAM, d/b/a WOODLAND REALTY, GALLERY OF HOMES
    83-199
    661 S.W.2d 379
    Supreme Court of Arkansas
    Opinion delivered December 12, 1983

      Cypert ir Roy, for appellant.

      Gordon L. Cummings, for appellee.
   Robert H. Dudley, Justice.

Bobby Hopper, the appellant, and his wife, Lois, sold a tract of commercial real estate in Springdale to Consumers Market, Inc., for $450,000.00. The appellee, Mary Denham, a real estate broker, demanded a broker’s commission of eight percent of the sales price. The Hoppers denied owing a commission to appellee or her agency. The appellee then filed suit against both Hoppers and, in a jury trial, was awarded the full commission of eight percent, or $36,000.00, plus pre-judgment interest of $4,-154.29 against Bobby Hopper. He appeals the award. We affirm.

In February, 1980, appellant Bobby Hopper placed signs on the tract. The signs contained the words “For Sale by Owner” along with his name and telephone number. He removed the signs shortly afterward. Subsequently, an agent for appellee’s agency contacted appellant, hoping that the contact would result in a listing arrangement for the agency. Appellant declined to execute a written listing agreement but agreed that, should the agent or agency procure a buyer, the appellant would receive $500,000.00 and the agency would receive any part of the sales price over that amount. Pursuant to this understanding, two of appellee’s agents, the appellant, and a representative of Consumers Market, the potential buyer, met in July, 1980. At this time the tract was offered to Consumers for $555,000.00, but the offer was not accepted.

At a second meeting, in August, 1980, the Consumers representative expressed interest in a sale if the price were lowered. Following this meeting, the appellee’s agents and the appellant discussed reducing the price. The appellee alleged that a new arrangement was made in which appellant would pay eight percent of the sale price to the agency as a commission. The existence of this agreement, testified to by appellee’s agents, was denied at trial by appellant.

No progress was made toward a sale in the following months, and appellant had the impression that the appellee’s agency was no longer trying to sell the tract to Consumers. Appellant also stated that he had given up on selling the land to Consumers. Later, appellant, through direct contact with Consumers, consummated a sale of the property for $450,000.00. The deed was dated February 26, 1981, and filed of record on February 27,1981. Appellee sued appellant and his wife, Lois Hopper, for the commission. The trial court granted a directed verdict in favor of Lois Hopper but let the case against appellant go to the jury. The jury returned a $36,000.00 judgment against appellant. The trial court, upon motion by appellee, awarded pre-judgment interest of $4,154.29.

Appellant first argues that the trial court erred by failing to grant a directed verdict in his favor for either of two reasons: (1) that only one contract was proved and under that contract appellee could collect a commission only if a buyer were found ready, willing, and able to purchase the tract at a price of more than $500,000.00; or (2) that any contract between appellee and appellant was abandoned by appellee.

We find no merit in either contention. First, two of appellee’s agents, Jerry Allred and Elam Denham, testified about a second mutual agreement by which appellee was to receive a commission of eight percent of the sales price for procuring a ready, willing, and able buyer. For performance of that second agreement, it was not necessary that the agent make the sale. It has long been held that a broker, employed to sell property, is entitled to his commission where he initiated negotiations between the principal and another which resulted in a sale by the principal, Hodges v. Bayley, 102 Ark. 200, 143 S.W. 92 (1912). Second, appellee’s agent most closely involved with the property, Jerry Allred, testified about continuing efforts to sell the property through January of 1981, when theagency learned of the sale by Hopper to Consumers. In particular, Allred testified that, between June 27, 1980, and January 30, 1981, he called Consumers 24 times and was called by Consumers 24 times. This continuing effort refutes any contention that appellee’s agency had abandoned the contract. Thus, substantial evidence existed that appellee was entitled to her commission, and the trial court’s refusal to grant a directed verdict was not error.

Appellant next argues that the court erred in denying his motion for a new trial challenging the sufficiency of the evidence. However, since the trial court was correct in finding that the evidence was sufficient to deny the motion for a directed verdict, it necessarily follows that a motion for a new trial based upon the insufficiency of the evidence was correctly denied. Green v. Gowen, 279 Ark. 382, 652 S.W.2d 624 (1983).

The appellant contends that one of his requested instructions was erroneously refused. The trial court correctly refused the instruction because other instructions were given which covered the subject. A party is not entitled to his particular preference in the wording of instructions, and a trial judge is not required to give repetitious or redundant instructions. Hough v. Continental Leasing Corp., 275 Ark. 340, 630 S.W.2d 19 (1982).

The appellant next contends that the trial court erred in refusing to set aside the verdict because of misconduct on the part of appellee’s counsel. He argues that appellee’s counsel improperly conducted voir dire and made statements during closing argument which were improper but in neither instance was an objection made. By not objecting to questions on voir dire and to statements made during closing argument, the trial court was not apprised of the alleged error and was not given a chance to correct the mistakes, if any. Therefore, the matter is not preserved for appellate review, Wasp Oil, Inc. v. Arkansas Oil and Gas, Inc., 280 Ark. 420, 658 S.W.2d 397 (1983). For the rare exceptions to the basic requirement of an objection in the trial court see Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). However, the appellant did object when, during opening statement, the appellee’s counsel referred to the net profit made by the appellant in the transaction. The trial court sustained the objection and admonished the jury: “ . . . . the jury will disregard any statement with respect to the amount of net profit the Hoppers may or may not have received, that’s not an issue in this lawsuit.” Later, while appellee’s attorney was questioning the appellant, the following colloquy took place:

Q. For $450,000.00. Why did you sell it for $450,000.00.
A. Because, I made a sizeable profit on it.
Q. How much did you make?
Mr. Ludwig: [appellant’s attorney] Objection, your honor.
The Court: Sustained.
Q. O.K., alright, that’s fair enough. You don’t deny you made a sizeable profit on it, do you?
The Court: Mr. Cummings, I sustained an objection with reference to profit.
Mr. Cummings: [appellee’s attorney] Yes, Sir, Judge.
The Court: Profit has nothing to do with the issues in this case, and the jury is so instructed.
Mr. Ludwig: Thank you, Your Honor.

The trial court prevented error by sustaining the objection and, on the court’s own motion, admonished the jury with the limiting instruction. The appellant was apparently satisfied with the admonition for there was no request for a mistrial. It was only after the adverse verdict that appellant argued that the statement and questions were so unfair that the jury verdict is tainted. In these circumstances, no reversible error appears. Boyette v. State, 250 Ark. 536, 465 S.W.2d 901 (1971).

Appellant contends that, since he and his wife owned the tract as tenants by the entirety, it was inconsistent to grant a directed verdict in favor of his wife but not him. The argument is without merit. The trial court properly granted the directed verdict in favor of Lois Hopper because, even though she was a tenant by entirety, she did not employ appellee and is not liable for her commission. Long v. Risley, 208 Ark. 608, 188 S.W.2d 132 (1945). There was substantial evidence that appellant bound himself to pay a broker’s commission and one who employs a broker may be liable for the commission regardless of the employer’s interest or lack of interest in the property. See Reynolds v. Ashabranner, 212 Ark. 718, 207 S.W.2d 304 (1948).

Upon appellee’s motion, the trial court awarded prejudgment interest of six percent from date the complaint was filed, April 8, 1981, to the date of judgment, March 14, 1983. The appellant argues that “to permit the appellee to make a separate request of the court on the issue of interest violates the appellant’s right to a trial by jury.” We find no merit to the argument. An award of pre-judgment interest is a matter of law and the right to a trial by jury does not extend to matters of law. As we stated in Wooten v. McClendon, 272 Ark. 61, 612 S.W.2d 105 (1981), “[w]here prejudgment interest is collectible at all, the injured party is always entitled to it as a matter of law. Nothing is left for the jury’s consideration.”

Appellant further contends that the award of prejudgment interest was erroneous because the amount of appellant’s liability did not become clear until the conclusion of the trial. The test for an award of pre-judgment interest is whether a method exists for fixing an exact value on the cause of action at the time of the occurrence of the event which gives rise to the cause of action. Lovell v. Marianna Federal Savings & Loan Assn., 267 Ark. 164, 589 S.W.2d 577 (1979). If such a method exists, pre-judgment interest should be allowed, because one who has the use of another’s money should be justly required to pay interest from the time it lawfully should have been paid.

Appellant urges that the post-judgment award of interest at a rate of ten percent was an abuse of discretion by the trial court and, instead, six percent should have been awarded. Ark. Stat. Ann. § 29-124 (Repl. 1979) provides ten percent to be the going rate for post-judgment interest, unless the judge, in his discretion, reduces the rate. The trial court stated: "Now, after judgment, the court will allow ten percent [interest], because of economic conditions and the prevailing rate of interest. Everybody knows that your money will earn more than ten percent interest.” This is in conformity with the purpose of awarding post-judgment interest, which is to compensate the judgment creditor for the loss of the use of money adjudged to be his. Equifax, Inc. v. Luster, 463 F. Supp. 352 (E.D. Ark. 1978).

Appellant also argues that post-judgment interest should accrue only on the jury award of $36,000.00 and not on the court’s pre-judgment interest award of $4,154.29. The purpose of awarding interest would be frustrated if appellee were not compensated for the loss of use of all of his money, both before and after judgment.

Affirmed.

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


author:
Steele Hays, Justice. John I. Purtle, Justice,
      Steele Hays, Justice. John I. Purtle, Justice,

text:
    Rodney Dewayne WILLIAMS v. STATE of Arkansas
    CR 83-94
    663 S.W.2d 700
    Supreme Court of Arkansas
    Opinion delivered December 12, 1983
    [Supplemental Opinion on Denial of Rehearing February 13, 1984.]

      Larry D. Vaught, for appellant.

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

      Smith and Purtle, JJ., would grant rehearing. Hollingsworth, J., not participating.

   Steele Hays, Justice.

Appellant, Rodney Williams, having several felony convictions, was convicted of the aggravated robbery and first degree murder of Hoyt Green and sentenced on each charge to life imprisonment, the robbery sentence merging with the murder sentence. For reversal, Williams argues that it was error to admit evidence of an unrelated crime and to admit two custodial statements given by him, the first on May 8,1982 and a later one on May 14. The arguments are without merit and, accordingly, we affirm the trial court.

At about 8 o’clock on the evening of May 7, 1982, Mrs. Patricia Nobles was accosted by a gunman at the rear of her home at 4400 W. 29th Street, Little Rock, as she returned from shopping. She was robbed of her purse, containing credit cards and cash, and she watched the robber get into a light colored Buick. After Williams was arrested she recognized him in a line up and she firmly identified him at trial as the man who robbed her.

About thirty minutes later, Hoyt Green was approached by two men as he worked in his yard at 3705 W. 11th Street in Little Rock. At gunpoint, the men demanded money and when Green resisted, one of them shot and killed him. The two men drove away in a vehicle matching the description of the one used in the robbery of Mrs. Nobles. Coins were found near the body of Hoyt Green and some were scattered as the man ran to the waiting car.

Williams was arrested around 11 o’clock the following morning. There is no argument that the Miranda warnings were not given; they were fully explained to him. At 9 o’clock that evening Williams gave a statement denying any connection with the Hoyt Green murder, but admitting that he and two companions had robbed Mrs. Nobles.

On May 14 Williams called Officer Ivan Jones to discuss the charges. Jones attempted to reach Williams’ lawyer, who was unavailable, and Williams said he wanted to go ahead and asked that a prosecuting attorney be present. Lloyd Haynes, Deputy Prosecuting Attorney, accompanied Jones to the county jail, where Williams offered to give a statement concerning Hoyt Green if he would not be charged with capital felony murder. He then gave a statement that he and two companions had seen Hoyt Green in the yard as they drove around. Williams said he and another passenger got out of the car to rob Green and when Green resisted, the other man shot him. Other shots were fired as they ran to the car. The May 8 and the May 14 statements were admitted in evidence over defense objections.

The May 14 statement is challenged on the grounds: a) that Williams’ lawyer was not present and b) the statement was given in reward for a promise to bring a lesser charge. The May 8 statement is attacked because of Williams’ age, limited intellect, and apprehension over being interrogated. The argument points out that Williams was arrested at 10:30 a.m. and did not give a statement until 9:05 that evening.

The arguments are not sufficient. As required by our case law [Degler v. State, 257 Ark. 388, 517 S.W.2d 515 (1974); Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975)], we have reviewed the circumstances developed by the omnibus hearing relative to the two statements and are satisfied the evidence supports the trial court’s findings that they were given voluntarily. Williams was twenty-two years old and had obtained the equivalent of a high-school education. He could not have been unfamiliar with police procedures, having previous felony convictions. The Miranda warnings were repeatedly given to him, which he confirms. He was not subjected to lengthy interrogation, in fact the testimony was that he was not questioned until 9:00 p.m. on the 8th, and promptly gave the statement admitting the robbery of Mrs. Nobles. There is a passing reference to his having wanted his lawyer at the May 8 interrogation (which the appellee does not address) but it is clear this issue, if it has merit, was not first presented to the trial court and, hence, will not support reversal. Meyers v. State, 271 Ark. 886, 611 S.W.2d 514 (1981); Williams v. State, 257 Ark. 8, 513 S.W.2d 793 (1974).

With respect to the statement given on May 14, there was proof at the omnibus hearing which supported a finding by the trial court that Williams waived the right to have counsel present by initiating the interrogation and insisting on a meeting even though his lawyer was not then available. Williams did not refute the testimony on this issue and we agree with the findings of the trial judge. Under such circumstances, it was not wrong for Haynes and Jones to meet with Williams in the absence of his lawyer. The proof was undisputed that Williams instigated the meeting, knowing his lawyer was not available. In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court reviewed the waiver of the warnings established by the case of Miranda v. Arizona, 384 U.S. 436 (1966), stating:

. . . [Ajlthough we have held that after initially being advised of his Miranda rights, the accused may himself validly waive his rights and respond to interrogation, see North Carolina v. Butler, supra, at 372-376, the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel; and we now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police. (Our italics.)

Nor can the argument that the statement was given in return for a reward or promise be sustained. The applicable law is summarized in Davis v. State, 275 Ark. 264, 630 S. W.2d 1 (1982):

The second prong of appellant’s suppression argumain components, first, the statement of the officer on a case-by-case basis by looking at the totality of the circumstances. The applicable law is simple. If a police official makes a false promise which misleads a prisoner, and the prisoner gives a confession because of that false promise, then the confession has not been voluntarily, knowingly and intelligently made. In determining whether there has been a misleading promise of reward we look at the totality of the circumstances. The totality is subdivided into two main compopnents, first, the statement of the officer and second, the vulnerability of the defendant.

Here the promise was neither false nor an inducement of Williams’ May 14 confession. He was not enticed by “the flattery of hope”, or excited by prospects of reward from those in authority. He conceived the idea and initiated the meeting where he proposed to give a statement in return for an assurance that he would be charged with first degree murder. Nothing suggests the statement was extorted from Williams by false promises. See Dewein v. State, 114 Ark. 472, 170 S.W. 582 (1914). Williams makes no claim his statement was false, or that he was misled by Haynes and Jones. In fact, the state delivered exactly what he asked for, in contrast to the circumstances in Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979), where an officer who had promised to do all he could to help the accused, did nothing; or Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975), where the accused got life after being told that twenty-one years was the most he would receive; or Hardin v. State, 66 Ark. 53 (1898), where Hardin received the death penalty after being told that second-degree murder would follow.

Finally, appellant cites Hickey v. State, 263 Ark. 809, 569 S.W.2d 64 (1978) and Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954) for the argument that proof of the “unrelated” robbery of Mrs. Mattie Nobles should not have been permitted. We cannot say the finding of the trial court on this issue was so clearly wrong as to require its exclusion under Unif. R. Evid. 403. The two men who accosted Mr. Green fled the scene in a light colored Buick which exactly matched the automobile Mrs. Nobles saw Williams get into after she was robbed. Moreover, the two crimes were closely related in time, in location and, especially, in method of operation, i.e., both crimes occurred as Williams and others simply drove around aimlessly in an area generally adjacent to Wright Avenue, until they spotted what they deemed to be likely subj ects for robbery. We think there is probative value in the evidence which brings it within the scope of Unif. R. Evid. 404. See Clines, et al v. State, 280 Ark. 77, 656 S.W.2d 684(1983).

The judgment on the sentences is affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion because I think the statement of May 14, 1982 should have been excluded. It is basic that in order for a confession to be admissible it must be given freely and voluntarily and must not have been extracted by threats or violence nor by direct or implied promises. Hutto v. Rose, 429 U.S. 28 (1976); Bram v. United States, 168 U.S. 532 (1897); Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). Also, the burden of proving that a custodial statement was voluntary rests upon the state. Freeman, supra; Scott v. State, 251 Ark. 918, 475 S.W.2d 699 (1972).

The appellant notified the police that he would like to make a statement in the presence of the prosecuting attorney and his own attorney. Not having heard from the officers, the appellant made another call to the same effect the next day. This call resulted in the statement of May 14, 1982. According to the officer and the deputy prosecutor, the appellant’s attorney was not available. In return for the statement the charge against the appellant was reduced from capital murder to murder in the first degree. It was admitted by the officer and the deputy prosecutor that the charge was reduced in exchange for the incriminating statement. The reduction in the charge against appellant is absolute proof that the statement was given in exchange for a promise of reward. The majority rely on Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). They quote a section of the opinion stating that if a false promise was given the statement would be involuntary. However, another portion of the Davis opinion said: “A statement induced by fear or hope of reward is not voluntary.” Also included in the Davis opinion was a quotation from Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979), stating that prisoner vulnerability coupled with the statement, “I’ll help you any way I can,” caused the suppression of a confession. We reversed the conviction on the ground that the statement was given with a promise of reward. When a deputy prosecutor told a prisoner he would help him all that he could, we held the confession to be involuntary. Shelton v. State, 251 Ark. 890, 475 S.W.2d 538 (1972). The fact that a statement was given as a result of a promise of reward, which promise was kept, does not make it any more voluntary than if a promise of reward had not been kept. In either case, at the time the statement is given the accused is hoping for and expecting a reward. The fact that the reward was given leaves no doubt but that the appellant gave the statement with the expectation that the charge against him would be reduced, and it was.

Supplemental Opinion on Denial of Rehearing delivered February 13, 1984

Steele Hays, Justice.

Appellant’s petition for rehearing insists that our opinion of December 13,1983, (Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983) erred in two respects: in assuming that it was the appellant, and not the state, who proposed a lesser charge in exchange for his confession and in disregarding the law that a confession obtained by a promise of reward may not be used against a defendant. But we adhere to our position on both counts because the record shows unmistakably that it was the appellant who initiated the proposal — Detective Jones testified to that effect and his testimony s,tands unrefuted, and we think the law was correctly applied. However, we believe a supplemental opinion is in order since an important point of law is involved, and was not fully developed in our first opinion.

When the voluntariness of a confession is raised on appeal, we independently review the circumstances in their entirety to determine whether the confession is trustworthy. The burden rests on the state, but unless we can say the trial court clearly erred in determining the preponderance of the evidence, we will affirm. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982); Harris v. State, 244 Ark. 314, 425 S.W.2d 293 (1968).

Here, the single circumstance supporting appellant’s position lies in the state’s having admittedly agreed to charge appellant with first degree murder in return for his agreement to give a statement about the Hoyt Green murder. However, that fact in itself is not what makes a confession unreliable. An examination of all the attendant circumstances includes those circumstances surrounding any agreement such as this one. When all the factors are considered, we conclude that the confession was voluntarily given: 1) appellant had not been subjected to lengthy interrogation, he was questioned briefly on May 8 and not again until he requested the meeting of May 14; 2) appellant was not without counsel, he had a lawyer, evidently retained, though he chose to meet without him; 3) the Miranda warnings were repeatedly read to appellant; 4) it was appellant who conceived and proposed that he give a statement in exchange for a charge of first degree murder; 5) at the time the agreement was reached appellant had not been charged in the Green murder, he was at most a suspect; 6) the agreement was not reached with the police, who are sometimes accused of overstepping the strict restraints of the law, but with a seasoned deputy prosecutor of more than twenty years affiliation with the office; 7) appellant did not mistakenly rely to his detriment on a false promise (in contrast to the cases cited in our opinion of December 13, 1983 at p. 95), the state kept the bargain and appellant benefited by it; 8) finally, and notably, appellant does not claim he was lured by the hope of reward into giving a false statement, thus, the truth of the statement he gave under oath to the deputy prosecutor remains utterly unchallenged by him.

When the case law applicable to these facts is examined we think it has been correctly applied and the confession was properly admitted. The fact that it was appellant who initiated the proposal is a key factor and one which has been seen by many courts as significantly different from the opposing situation, where the state initiates the proposal and uses it to beguile the suspect. In Whitworth v. State, 117 S.E. 450 (1923), tjie Supreme Court of Georgia said that the hope of reward which will exclude a confession must be one which another holds out to the accused to elicit it. More recently that same court observed in upholding a confession that the hope of benefit for the confession was not induced by the officers, but proceeded from the accused himself. In Foster v. State, 72 Ga. App. 237, 33 S.E.2d 598 (1945) it was said, “A hope or fear which originates in the mind of the person making the confession and which originates from needs of his own planting will not exclude a confession.” The Kansas Court of Appeals has said that if the defendant solicits the promise, he cannot claim to have been the victim of compelling influence. State v. Baker, 4 Kan. App. 2d 340, 606 P.2d 120 (1980). In State v. La Pean, 247 Wis. 302, 19 N.W.2d 289 (1945), the Wisconsin Supreme Court upheld a confession on circumstances closely resembling those at hand. The accused asked to have the charge reduced from frist degree murder to third degree. The officer said he would take it up with the prosecutor, who then accompanied the officer to the jail, agreed to the proposal, and defendant’s written confession was obtained and upheld. Other cases to the same effect are: State v. Jordan, 114 Ariz. 452, 561 P.2d 1224 (1976); Eakes v. State, 387 So. 2d 855 (Ala. Crim. App. 1978); People v. Nicholas, 112 Cal. App. 3d 249, 169 Cal. Rptr. 497 (1980); People v. Coddington, 123 Ill. App. 2d 351, 259 N.E.2d 382 (1970); People v. Hubbell, 54 Cal. App. 2d 49, 128 P.2d 579 (1942); People v. Sourisseau, 62 Cal. App. 2d 917, 145 P.2d 916 (1944); State v. Nunn, 212 Or. 546, 321 P.2d 356 (1958).

Nor is there any assertion by the appellant that the promise of a lesser charge lured him into a false statement. Where the defendant conceives the plan and bargains for its acceptance in return for what he now claims was wrongfully obtained, it is incumbent on him to show he was coaxed into giving a statement that was not true. This is the position taken in other jurisdictions. In State v. Nunn, supra, the test was said to be, was the inducement held out to the accused such that there is any fair risk of a false confession, for the object of the rule is not to exclude a confession of truth, but to avoid the possibility of a confession of guilt from one who is in fact innocent. The issue is, “Whether the methods used produced an untrue acknowledgment of guilt,” [R. W. v. State, 135 Ga. App. 668, 218 S.W.2d 674 (1975)] and, “Were the circumstances such as to result in an untrustworthy confession.” [In Interest of G.G.P., 382 So.2d 128 (Fla. Dist. Ct. App. 1980)]. In State v. La Pean, supra, the court said, “The only question is whether this confession was obtained by promises which induced [the accused] to make an untrue or untrustworthy confession.” See also United States v. Gorayska, 482 F. Supp. 576 (1979) and Greenwood v. State, 107 Ark. 568 (1913).

Having made an independent review of the entire circumstances presented to the trial court, we are unable to say that on a preponderance of the evidence, the trial court’s findings that the confession was made knowingly and voluntarily is clearly erroneous.

The petition for rehearing is denied.

Justices George Rose Smith and John Purtle would grant petition for rehearing.

Justice P. A. Hollingsworth not participating.

John I. Purtle, Justice,

dissenting. I disagree with the majority opinion because I think the statement of May 14, 1982, should have been excluded. It is basic that in order for a confession to be admissible it must be given freely and voluntarily and must not have been induced by threats or violence nor by direct or implied promises. Hutto v. Ross, 429 U.S. 28 (1976); Bram v. United States, 168 U.S. 532 (1897); Freeman v. State, 258 Ark. 617, 527 S.W.2d 909 (1975). Also, the burden of proving that a custodial statement was voluntary rests upon the state. Freeman v. State, supra; Scott v. State, 251 Ark., 918, 475 S.W.2d 699 (1972).

The appellant notified the police that he would like to make a statement in the presence of the prosecuting attorney and his own attorney. Not having heard from the officers, the appellant made another call to the same effect the next day. This call resulted in the statement of May 14, 1982. According to the officer and the deputy prosecutor, the appellant’s attorney was not available. In return for the statement the charge against the appellant was reduced from capital murder to murder in the first degree. It was admitted by the officer and the deputy prosecutor that the charge was reduced in exchange for the incriminating statement. The majority cites Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982) as precedent in the opinion. The Davis opinion stated: “A statement induced by fear or hope of reward is not voluntary.” Also included in the Davis opinion was a quotation from Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1979), stating that prisoner vulnerability coupled with the statement, ‘‘I’ll help you any way I can,” mandated the suppression of a confession. We reversed the conviction on the ground that the statement was given with a promise of reward. When a deputy prosecutor told a prisoner he would help him all that he could, we held the confession to be involuntary. Shelton v. State, 251 Ark. 890, 475 S.W.2d 538 (1972). The fact that a statement was given as a result of a promise of reward, which promise was kept, does not make it any more voluntary than if a promise of reward had not been kept. In either case, at the time the statement is given the accused is hoping for and expecting a reward. The fact that the reward was given leaves no doubt but that the appellant gave the statement with the expectation that the charge against him would be reduced, and it was. After all, the appellant had a constitutional right to remain silent but he traded it for a clear promise of reward. Perhaps without the confession he would not have been found guilty.

The United States Supreme Court stated in Bram v. United States, supra:

A confession, in order to be admissible, must be free and voluntary; that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence ... A confession can never be received in evidence where the prisoner has been influenced by any threat or promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted. 168 U.S. at 542-543. (emphasis added.)

This is not a new standard. It has existed since the adoption of the Constitution of the United States. It has been followed in such cases as Hutto v. Ross, supra; Brady v. United States, 397 U.S. 742 (1970); and Payne v. Arkansas, 356 U.S. 560 (1958).

I feel constrained to repeat that the confession of May 14th was given in the absence of appellant’s known attorney and in exchange for a promise (before the confession was given) to reduce the charge from capital murder to first degree murder. The difference in the possible penalty is the difference between death and life in prison. Read the following question and answer by defense counsel and the officer taking the statement, and then decide whether it was given as a result of hope of a lighter charge.

Question: Any threats or promises or coercion used to get him to make the statement?
Answer: This is the — when he was — Mr. Haynes told him that he would not charge him with capital felony, that he would charge him with first degree only.

One other little thing not noticed by the majority is the undisputed statement in the record that before the statement of May 8th was taken, while he was in custody, appellant requested the presence of his attorney but was refused. Obviously the majority opinion attempts to adopt the view that the totality of the circumstances clearly reveal the appellant was guilty even if the confession was improperly introduced. This argument has been decided adversely in the case of Payne v. Arkansas, supra. This case was first decided by our own court, Payne v. State, 226 Ark. 910, 295 S.W.2d 312 (1956), and the confession was allowed. The United States Supreme Court corrected this court then and I suppose it will do it again.

I note with interest the majority opinion avoids citing any United States Supreme Court opinions. Have we seceded again? Even so, we have no right to ignore our own constitution which theoretically guarantees our people the right not to be witnesses against themselves, among other things. This very court has on numerous occasions held that a statement or confession given in fear of punishment or hope of reward is not voluntary and should be excluded. Davis v. State, supra; Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979); Tatum v. State, supra; Freeman v. State, supra; Northern v. State, 257 Ark. 549, 518 S.W.2d 482 (1975); Smith v. State, 254 Ark. 538, 494 S.W.2d 489 (1973); Shelton v. State, supra; Mitchell v. Bishop, 248 Ark. 427, 452 S.W.2d 340 (1970); Dewein v. State, 114 Ark. 472, 170 S.W. 582 (1914); and Greenwood v. State, 107 Ark. 568, 156 S.W. 427 (1913). The foregoing are only a few of our own decisions which are at least partly overruled by the majority opinion.

I would grant the petition for rehearing.

      Appellant’s confession was essentially an admission that he and a companion approached Hoyt Green to rob him, appellant having the pistol; that when Green resisted, the two started running but the companion took the gun from appellant, went back and shot Green.


author: Per Curiam. John I. Purtle, Justice,

text:
    STATEWIDE HEALTH COORDINATING COUNCIL et al v. GENERAL HOSPITALS OF HUMANA, INC. et al

    83-83
    660 S.W.2d 906
    Supreme Court of Arkansas
    Opinion delivered December 12, 1983

      Original opinion appears in 280 Ark. at page 443.

   Per Curiam.

Petitions for Rehearing are denied.

Purtle, J., would grant.

Hays, J., not participating.

John I. Purtle, Justice,

dissenting. I feel we made a mistake in this case when we overruled the Pulaski County Circuit Court in affirming the decision of the state agency granting a certificate of need to General Hospitals of Humana, Inc. to build a hospital in Sherwood, Arkansas. I do not question that our decision was a correct one under a strict construction theory. However, I am of the opinion that we could have adopted a less narrow construction and affirmed the decision of the lower court.

The state agency is an arm of the state and has authority to bind the state when acting within the authorization' granted to it. The state agency determined that there was a need for a hospital in Sherwood and pursuant to its granted authority issued a certificate of need for construction. The other area hospitals intervened and unsuccessfully tried to prevent the certificate from being issued. After it was granted the matter was appealed to the circuit court where the action of the agency was affirmed. Without question Humana should have waited on the appellate process before commencing construction but that is hindsight, which is always 20/20. Nevertheless, by proceeding, they were acting in full compliance with the law as evidenced by their certificates of need which had been declared valid. There is no question about petitioner acting in good faith in reliance upon the action of the state. We have held the state may be estopped to deny that which has previously been approved. Foote’s Dixie Dandy, Inc. v. McHenry, Adm’r, 270 Ark. 816, 607 S.W.2d 323 (1980).

I agree with petitioners’ argument that federal law contemplates the states will on occasion issue a certificate of need which is not in strict compliance with the standards. The best evidence of this view is the law itself which is set out in 42 U.S.C. § 300 M-2(c) stating:

If a State Agency makes a decision in carrying out a function described in paragraph 4 [Certificate of need decisions], (5), or (6) of subsection (a) of this section which is not consistent with the goals of the applicable HSP or the priorities of the applicable AIP, the State Agency shall submit to the appropriate health systems agency a detailed statement of the reasons for the inconsistency.

When provisions for its departure are included within the law, rule or regulation, it is not necessary for courts to create exceptions. If there was a departure from the formula in this case it appears it may have well been of the type envisioned when the law was enacted.

It is obvious that we are dealing with a case of overregulation here. Governments are not authorized to act except within the confines of the power granted to them by the people. I do not believe the people intended to grant the government the power to regulate every facet of their affairs. A less narrow construction of these statutes and regulations would allow the state agency to depart from strict compliance, as it did in this case. I believe public policy requires that we interpret these statutes in a manner consistent with the decisions of the state agency, the independent agency, the Attorney General’s office and the circuit court. In the interest of public policy I would apply a very broad interpretation of these restrictive regulations. After all, the health, safety and welfare of the residents of north Pulaski County will be affected by this decision.

The cost of medical care has skyrocketed within the past few years. Many poor and needy people can no longer afford even basic medical needs. It seems to me that competition will drive the cost of hospitalization down, not up as argued by respondents. Furthermore, the cost of hospitalization is not the only consideration involved here. Human lives may well be at stake in this instance; acutely ill persons who reside in northern Pulaski County may not survive the longer trip to other area hospitals. No value can be placed upon a human life but it seems to me the life of a north Pulaski County resident should be valued the same as one south of the river. As we interpret the laws where the health, safety and welfare of people are at issue, we should insure that these rights are jealously guarded, and that our helpless citizens are protected. The least we should do in this matter is to return it to the state agency in control for a more complete development of the facts. It may well be that this certificate of need was issued for valid reasons. I would grant rehearing.


author: Richard B. Adkisson, Chief Justice.

text:
    Harvey SHELTON v. THE FIRESTONE TIRE & RUBBER CO. v. Artie LITTLE
    83-144
    662 S.W.2d 473
    Supreme Court of Arkansas
    Opinion delivered December 19, 1983
    [Rehearing denied January 30, 1984.]

      Compton, Prewett, Thomas if Hickey, P.A., for appellant.

      Blackwell, Sanders, Matheny, Weary if Lombardi, and The Rose Law Firm, for appellee and cross-appellant.

      Risjord if Curtis, and Shackleford, Shackleford if Phillips, P.A., for cross-appellee.
   Richard B. Adkisson, Chief Justice.

On June 21, 1978, Artie Little, a lady of 82 years, walking on Fourth Street in Strong, Arkansas, was struck by a side ring of an RH5° type multi-piece truck wheel mounted as the left front outside dual on a log trailer owned by appellant Harvey Shelton and pulled behind a truck driven by Shelton’s employee, X. L. Baker. Baker had driven only about four blocks from Jackson Smith’s Mobil Service Station where a flat tire on the left front outside dual of the trailer had been removed, repaired, and remounted on the wheel by Smith with Baker assisting only in tightening the nuts. When the wheel exploded, the ring struck Mrs. Little resulting in permanent injury.

This is the third appeal of this products liability action. The first judgment was set aside by the Court of Appeals on procedural grounds. Firestone v. Little, 269 Ark. 636, 599 S.W.2d 756 (Ark. App. 1980). The second judgment was set aside by this court on the basis that the plaintiff, Artie Little, should have been required to reveal the details of a “Mary Carter” agreement between her and defendant Harvey Shelton, whereby, for the consideration of $35,000.00 advanced by Shelton’s insurance carrier, Mrs. Little agreed to hold Shelton and the insurance carrier harmless from any claims for contribution which might be made against them. Firestone v. Little, 276 Ark. 511, 639 S.W.2d 726 (1982).

On January 3-11, 1983, the case was retried. The jury returned a verdict in favor of plaintiff Artie Little, for damages in the amount of $200,000.00 and apportioned fault 30% to Firestone, 40% to Smith, and 30% to Shelton. The trial court entered judgment in accordance with the verdict.

On February 4, 1983, the trial court revised the judgment and gave effect to the “Mary Carter” agreement by setting aside the judgment against Shelton and reducing the amount of the judgment by $60,000.00, the amount attributed to the 30% fault of Shelton. As to the remaining $140,000.00, the trial court then fixed the liability, jointly and severally, on Smith and Firestone alone. On this same date, Firestone tendered in open court a check in the amount of $100,000.00 (less costs) which would satisfy its share of the judgment, i.e., $60,000.00 (representing 30% of fault attributed to it) plus $40,000.00 (representing 1/2 of 40% fault attributed to Smith who was insolvent). Later, the trial court again revised its judgment, granting Firestone judgment against Smith in the amount of $40,000.00 pursuant to its claim for contribution.

First, we consider Shelton’s appeal of insufficient evidence of negligence. On appeal we will not reverse the verdict of the jury if there is substantial evidence to support it. Tinsley v. Cross Development Co., 277 Ark. 306, 642 S.W.2d 286 (1982). The record reflects that Shelton bought the 1971 truck and trailer used from another party and that on the day of the accident the trailer had the same wheels on it that were on it when Shelton bought it. Shelton testified that although he checked the truck weekly and would not knowingly have used an RH5° type wheel, he never checked the wheels nor substituted new or used wheels for any of the original wheels. The record further reflects that, when the wheel was removed to fix the flat, Shelton’s truck driver, Baker, discussed with Smith that the wheel was “one of them old dangerous wheels.” Notice to an employee obtained during the course and scope of his employment may be attributed to his principal. Collins v. Arkansas Cement Co., 453 F.2d 512 (8th Cir. 1972); West Tree Services, Inc. v. Hopper, 244 Ark. 348, 351, 425 S.W.2d 300, 302 (1968); Hignight v. Blevins Implement Co., 220 Ark. 399, 401, 247 S.W.2d 996, 997 (1952). We find the failure to inspect the used vehicle’s wheels coupled with the decision to knowingly drive the vehicle with a dangerous wheel constitute sufficient evidence to support the jury’s finding of negligence.

Second, we consider Firestone’s point on appeal that the trial court erred in its modification of the judgment wherein it refused to grant Firestone contribution against Shelton for one-half of the judgment against Smith who is unable to pay. In revising the judgment, the trial court, in effect, gave application to the “Mary Carter” agreement (a separate agreement between Artie Little and Shelton) to the point that it controlled the joint and several liability of all the defendants. In this respect the trial court erred. The “Mary Carter” agreement should not have been the basis for relieving Shelton of his share of the liability determined by the jury. The trial court may not set aside the jury verdict unless the verdict is clearly against the preponderance of the evidence. Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). Accordingly, we conclude the trial court erred in revising the j udgment so as to eliminate a judgment against Shelton.

Third we consider the issue as to whether Firestone is at this point entitled to contribution from Shelton in the amount of $40,000.00 to satisfy one-half of the judgment against Smith. The real issue here is whether Firestone is entitled to contribution of a joint tortfeasor under the Uniform Contribution Among Tortfeasors Act (codified as Ark. Stat. Ann. §§ 34-1001 — 34-1009) before the judgment is paid to the injured party. Section 34-1002 of the Act provides in part: “(2) A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof.” See also Burks Motors v. Int’l Harv. Co., 250 Ark. 641, 646, 466 S.W.2d 945 (1971). Had Firestone submitted in open court the full amount of the unsatisfied judgment ($140,000.00) as per Ark. Stat. Ann. § 34-1002 and then moved for contribution, it would have been proper for the trial court to have granted contribution. Accordingly we conclude that Firestone is entitled to contribution from Shelton when, and only when, it has paid more than its pro rata share. Upon remand Firestone should be allowed the opportunity to tender the amount of the judgment and proceed to move for contribution.

Reversed and remanded for judgment and other proceedings consistent with this opinion.


text:
    ARKANSAS POWER & LIGHT COMPANY v. R. L. ADCOCK and Marilyn ADCOCK ARKANSAS POWER & LIGHT COMPANY v. Lloyd ADCOCK and Helen ADCOCK
    83-172
    661 S.W.2d 392
    Supreme Court of Arkansas
    Opinion delivered December 19, 1983

      Janan E. Kemp, for appellant.

      Charles Yeargan, for appellees, R. L. and Marilyn Adcock.

      Mark P. Clark, P.A., by: Mark P. Clark, for appellees, Lloyd and Helen Adcock.
   Richard B. Adkisson, Chief Justice.

By jury verdict submitted upon interrogatories, appellant, Arkansas Power 8c Light Co. was found to have willfully, and without honest belief in its right to do so, cut timber on the land of the appellees. The jury found appellees, R. L. Adcock and Marilyn Adcock, sustained damage in the amount of $1,510.43, and appellees, Lloyd Adcock and Helen Adcock, sustained damge in the amount of $2,238.80 which the trial court then trebeled pursuant to Ark. Stat. Ann. § 50-105 (Repl. 1971). The only question on appeal is whether the trial court erred in the denial of appellant’s motion for judgment notwithstanding the verdict. See Rule 50, ARCP.

On appeal we will uphold the decision of the trial court denying a motion for judgment n.o.v. if there is any substantial evidence to support the jury’s verdict. Clayton v. Wagnon, 276 Ark. 124, 126, 633 S.W.2d 19, 21 (1982).

Appellant was granted a right of way “together with the right to cut [danger] trees outside of said right-of-way whose height plus 12 feet 6 inches exceeds the horizontal distance from the butt of the tree to the centerline of the [AP8cL] right-of-way. . . .” Appellant contends that it only cut “danger trees”. In responses to interrogatories, the jury found appellant had indeed cut trees which were not “danger trees.” A forester employed by appellee testified:

I walked out there and I found the stump and I matched stump up with the tops. The tops were never moved ... I put a nail in the stump on the closest edge closest to the top. I took a tape and then I measured from there to the very, I mean, to the very tip top of that top. All right, then I measured from the same point on that top, on that stump, I went all of the way out to the middle of the right-of-way and measured out there. I added twelve feet six inches on to the length from the top ... I didn’t find none that were long enough to hit the middle of the right-of-way. They cut some and dropped them right towards it and didn’t even reach the first line.

Another forester testified that based on his observation of the stump diameters from comparable trees on the site, he did not think any of the trees cut were “danger trees.”

We conclude that there was substantial evidence to support the jury’s verdict and that the trial court did not err in denying appellant’s motion for judgment n.o.v.

Affirmed.


text:
    Leon HURST and Marvlean HURST, His Wife v. Roscoe A. FEILD, Jr.; Palmer MILLER; and THE JAMES B. GILBERT TRUST, A Partnership; TEXACO, INC.; Lee KRIGBAUM; and Troy COLEMAN
    83-206
    661 S.W.2d 393
    Supreme Court of Arkansas
    Opinion delivered December 19, 1983

      McDaniel, Gott & Wells, P.A., by: Phillip Wells, for appellants.

      Reid, Burge ir Prevallet, by: Donald E. Prevallet, for appellees, Feild, Miller, and The James B. Gilbert Trust.

      Jack M. Short, and Frierson, Walker, Snellgrove ir Laser, for appellees, Texaco, Inc. and Krigbaum.

      Barrett, Wheatley, Smith <t Deacon, for appellee, Coleman.

   Richard B. Adkisson, Chief Justice.

This suit alleged negligence, of owners, lessors, and sublessors and resulting damages to sublessee for personal injuries because of failure to repair the leased premises. Based on depositions and affidavits, the Craighead County Circuit Court granted summary judgment, holding that the duty to repair rested on the sublessee, appellant Hurst. Summary judgment was granted in favor of appellees Roscoe A. Feild, Jr., Palmer Miller, and James B. Gilbert, owners; and tor appellees Texaco, Inc. and Lee Krigbaum, its agent, lessor; and for appellee Tony Coleman, sublessor. Appellant Hurst, sub-lessee, contends the trial court erred in ruling that the appellees are entitled to summary judgment as a matter of law. We agree as to appellee Coleman.

The Texaco service station in question is located in Jonesboro and is owned by appellees Roscoe A. Feild, Jr., Palmer Miller, and the James B. Gilbert Trust. The owners’ predecessor in title, Vepale, Inc., leased the station to appellee Texaco, Inc. in 1962. By the terms of that lease, the lessor agreed to make major repairs over $50.00. In 1970 Texaco, Inc. subleased the station to appellant, Leon Hurst and he remained as proprietor and in possession until November, 1978. During this time a stone facade wall was erected on the premises. In November, 1978, the station was subleased by Texaco to appellee Coleman who then entered into an oral sublease with Hurst who remained as proprietor. On January 8, 1980, a portion of the stone facade wall collapsed causing injuries to Hurst. The subleases executed by Texaco, Inc., first to Hurst and then to Coleman, contained the agreement that the lessee would maintain the station in good repair and in a clean, safe, and healthful condition. The terms of the oral sublease from Coleman to Hurst are in dispute.

At common law the lessor owed no duty of repair of the premises to the lessee. Arkansas law follows this rule. Unless a landlord agrees with his tenant to repair the leased premises, he cannot, in the absence of statute, be held liable for repairs. Terry v. Cities of Helena & W. Helena, 256 Ark. 226, 506 S.W.2d 573 (1974); Collision v. Curtner, 141 Ark. 122, 216 S.W. 1059 (1919).

In the instant case, the lease agreements made between the owners and Texaco, Inc. and between Texaco, Inc. and Coleman are not applicable to the lease between Coleman and Hurst because of a lack of privity. Therefore, the only question is whether the terms of the oral sublease from Coleman to Hurst imposed upon Coleman a duty to repair. Appellant Hurst’s affidavit was that Coleman agreed to make repairs and that Coleman told Hurst to call him if any repairs were needed. This is sufficient to raise a question of fact.

In order to be entitled to a summary judgment, the appellees had to show there was no issue of fact. All inferences are drawn against the moving party, and a summary judgment is not proper when reasonable minds might differ as to conclusions to be drawn from the facts disclosed. Robinson v. Rebsamen Ford, Inc., 258 Ark. 935, 530 S.W.2d 660 (1975). In granting a motion for summary judgment, the trial court must find from the pleadings, depositions, answers to interrogatories, admissions, and affidavits filed that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Purser v. Corpus Christi St. Nat’l Bank, 258 Ark. 54, 522 S.W.2d 187 (1975). Accordingly, we conclude the trial court erred in granting summary judgment for the appellee Coleman.

Reversed and remanded.


text:
    ARKANSAS POOLS, INC. v. Helen BEAVERS
    83-213
    661 S.W.2d 395
    Supreme Court of Arkansas
    Opinion delivered December 19, 1983

      Barrett, Wheatley, Smith ir Deacon, for appellant.

      Lambert & Brown, by: Stewart K. Lambert, for appellee.
   Richard B. Adkisson, Chief Justice.

On July 11, 1981, appellee, Helen Beavers, purchased a pool from appellant, Arkansas Pools, Inc., who contracted with David Watkins to actually build the pool. On July 22,1981, when the pool was almost completed, appellee attempted to use the pool by placing a wooden stepladder near the shallow end to climb into the pool. While climbing the ladder, appellee attempted to grip a metal plate that had not been bolted down. The plate slid sideways and appellee was thrown on her back causing injury to her back and head.

Appellant brought suit for the purchase price of the swimming pool and was granted a directed verdict on this issue in the amount of $3,659.96 from which there is no appeal. Appellee counterclaimed for personal injuries sustained during the use of the pool, contending that the pool was negligently constructed and/or designed. The trial court granted a directed verdict against the appellee on the issue of negligent design; subsequently, the jury found that the pool had been constructed by an independent contractor and that appellant was negligent in its selection of the contractor. Appellant had objected to the instruction on negligent selection of a contractor because of lack of pleading or proof on this issue. On appeal we agree with appellant that there was insufficient evidence from which the jury could have found that appellant negligently selected the independent contractor.

Generally, an employer may be held liable for the conduct of a careless, reckless, or incompetent independent contractor when the employer was negligent in hiring the contractor. Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S.W.2d 341 (1979). The burden of proof is upon the party alleging negligence to prove the employer either knew or should have known of the incompetency of the independent contractor. Newton & Fitzgerald v. Clark, 266 Ark. 237, 582 S.W.2d 955 (1979). It is not enough, however, to prove that the work of the independent contractor was negligently performed since no presumption arises as to the negligence of the employer as a result of negligence of the independent contractor. No evidence was presented that Arkansas Pools, Inc. had any reason to believe that the independent contractor was incapable of adequate performance at the time the contract was executed. Even appellee stated that she had bought the pool from appellant because she had heard it was “a good place to buy from,” indicating that appellant and its independent contractor had a good reputation within the community.

Furthermore, this Court has held that an employer who has had previous successful experience with an independent contractor in the performance of his work cannot be held liable on the theory of negligent selection. Western Ark. Telephone Co. v. Cotton, 259 Ark. 216, 532 S.W.2d 424 (1976); see also Wright v. Newman, 539 F.Supp. 1331 (1982). Here the uncontradicted testimony was that this contractor had been used by appellant on numerous occasions. There was no proof that the employer had had anything other than successful prior experiences with the contractor.

There being no evidence to warrant the submission of the case to the jury on the question of negligent selection of an independent contractor, we reverse and remand.


text:
    Billy Earl MITCHELL v. STATE of Arkansas
    CR 83-108
    661 S.W.2d 390
    Supreme Court of Arkansas
    Opinion delivered December 19, 1983

      Wood Law Firm, by: Steven R. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Randel Miller, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

On June 1, 1982, three persons, including appellant who was armed with a pistol, entered Godfather’s Pizza at 4514 Camp Robinson Road, North Little Rock, Arkansas, and took from the possession of Matthew Helfrich money owned by Godfather’s Pizza and a ring and wallet owned by him personally. Also money was taken from two patrons of the business. A police officer heard the report of the robbery and gave chase to a suspect vehicle from which the stolen items were recovered. The officer identified appellant in court as the person who fled from the vehicle. On these facts appellant, Billy Earl Mitchell, was found guilty of four counts of aggravated robbery and was sentenced to four consecutive terms of life imprisonment. On appeal we affirm in part and reverse in part.

First, appellant argues that the facts regarding the robbery of Matthew Helfrich will support the conviction of only one aggravated robbery. We agree. Ark. Stat. Ann. § 41-2103 (Repl. 1977) defines robbery:

A person commits robbery if with the purpose of committing a theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

As pointed out in the Commentary to Ark. Stat. Ann. § 41-2103, under prior law robbery consisted of the felonious taking of money or other valuable thing from the person of another by force or intimidation. That definition put the primary emphasis upon the taking of property. But the Code redefines robbery to shift the focus of the offense from the taking of property to the threat of physical harm to the victim. As the Commentary states: “One consequence of the definition is that the offense is complete when physical force is threatened; no transfer of property need take place.” Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (1979). Ownership is not a necessary element of proof for aggravated robbery. The aggravated robbery was complete with the threat of physical harm and the intent to commit theft. Therefore, the same proof was required for each of the counts of robbery involving Matthew Helfrich, and the entry of conviction on both counts is prohibited by Ark. Stat. Ann. § 41-105 (1) (a) and (2) (a) (Repl. 1977). We set aside the conviction and sentence for one of the counts of aggravated robbery against Matthew Helrich and affirm the conviction and sentence for the other count. Akins v. State, 278 Ark. 180, 644 S.W.2d 273 (1983).

Second, appellant argues the prosecuting attorney committed reversible error in closing argument by referring to whether or not the police took fingerprints. The prosecutor’s statement was made in response to an earlier remark by defense counsel in his closing argument. Appellant objected to the statement but did not request an admonition to the jury or a mistrial. The circuit judge sustained the objection and directed the prosecutor to confine his remarks to the proof. Appellant was given all the relief requested; consequently, appellant has no basis upon which to raise the issue on appeal.

Third, appellant argues the trial court erred in refusing to declare a mistrial because the testimony of appellant’s probation officer tended to show appellant had been convicted of a crime. The purpose of this testimony was to show that the vehicle used in the robbery was one under the control of appellant. It was properly within the discretion of the circuit judge to admit this relevant evidence by balancing the probative value of the submitted testimony against its possible prejudicial effect. See Rule 403 and Rule 404 (b), Uniform Rules of Evidence. The trial court should be reversed only upon a showing of abuse of discretion. Robinson v. State, 275 Ark. 473, 631 S.W.2d 294 (1982). The circuit judge did not abuse his discretion in the instant case.

Reversed in part, affirmed in part.


author: George Rose Smith, Justice.

text:
    Robert Wayne GIBBS v. Mike MAHONE
    83-69
    661 S.W.2d 397
    Supreme Court of Arkansas
    Opinion delivered December 19, 1983

      Charles L. Carpenter and Charles L. Carpenter, Jr., for appellant.

      Steve Clark, Atty. Gen., by: James W. Cullum, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a tort action for the conversion of forty dollars. On November 1, 1980, the appellant, Robert Wayne Gibbs, was arrested by the appellee, Mike Mahone, a narcotics officer of the Arkansas State Police, on a charge of having sold drugs to Charles Sexton. At the time of the arrest, which took place outside the trailer where Gibbs was living, Gibbs conferred with his father at the scene and then turned over to Officer Mahone about 2,000 pills that were in the trailer and two twenty-dollar bills that had been used in the undercover “buy” by Sexton and that matched serial numbers the officer had written down. On the following day, November 2, Officer Mahone paid $40 to Sexton’s mother, who had furnished that amount for the buy.

Within the next two months it was found by chemical analysis that the pills contained caffeine rather than a controlled substance. The sale to Sexton had been legal. Gibbs tried unsuccessfully in the municipal court, after the charge against him had been dismissed, to obtain forty dollars from Officer Mahone.

Almost a year after the arrest Gibbs brought this action for the conversion of forty dollars and for $5,000 punitive damages. At the close of the plaintiff’s case the trial judge directed a verdict for the defendant. Inasmuch as no facts were presented at the trial to justify the imposition of punitive damages, the lawsuit is actually one for forty dollars. We recognize, as did the trial judge, that Gibbs has the privilege of suing for that amount and demanding a jury trial. But since the case involves a trivial amount and no new legal principle of importance, we shall confine our discussion to the one controlling issue without stopping to answer various discursive arguments made in the appellant’s brief.

The single pivotal issue below was whether Mahone was guilty of a wrongful conversion by paying Sexton’s mother $40 on November 2, the day after the arrest. Much of the evidence concerned the plaintiff’s efforts to recover his money and pills, but such facts were irrelevant. The complaint alleged a single conversion, on November 2. The following excerpts from the record show how the issue in the trial court was narrowed to the asserted November 2 conversion:

The Court: Gentlemen, you correct me if I am in error. You are claiming a conversion occurred on November 2nd, although information as to that conversion was some time later.
Mr. Carpenter: That’s correct.
The Court: That’s the date of the conversion, if there was one. Are we clear on that, that’s on the record.
Mr. Carpenter: Yes, sir.
* # *
The Court: There was no question about the legality of the seizure of this money, there’s no question about the legality of the taking of the money, the only question [is] as to whether or not there was a conversion of the money at some point after the taking and that’s alleged to have been on November 2nd. Is that what we’ve got in issue here?
Mr. Larry Carpenter: Yes, sir.

The appellant’s argument is tacitly based on the fallacious assumption that that two twenty-dollar bills were still his property on November 2 and were therefore subject to a wrongful conversion on that date. In this connection he argues that Officer Mahone violated his duty by not preserving the identical bills as evidence in the case, so that his payment to Sexton’s mother was a conversion. Perhaps Mahone could have been disciplined for improperly releasing evidence, but Gibbs has no standing to complain of that irregularity in police procedure. It was at most an irregularity, for Officer Mahone could have testified to the transaction without having the bills themselves to offer as an exhibit. Scott v. State, 251 Ark. 918, 475 S.W.2d 699 (1972). The important evidence would have been the drugs.

It is plain enough that Gibbs was entitled at most to the return of forty dollars in legal tender, whether in the form of two twenties, four tens, or other bills. Money, it is true, can be converted, but in the circumstances of this case Gibbs cannot treat as a tortious conversion the officer’s disposition of two bills that no longer belonged to Gibbs. (As a matter of fact, the officer testified that he paid Sexton’s mother forty dollars and retained the bills until January, but that is really immaterial.)

The ultimate question, then, is whether a police officer who acts in unchallenged good faith in making an arrest, who takes bills that were used in a prearranged buy, and who repays the person who furnished the money used in the buy, can be held personally liable for a tortious conversion of the bills if the arrested person proves to be innocent. It is obvious that police officers could not perform their duties if they were subject to liability in such a case. Officer Mahone pleaded the defense of immunity in his answer and is fully, supported by the law. In a pertinent law review Comment the authors stated the general rule that public officers are immune from liability for acts within the scope of their official authority and made this observation with respect to police officers:

The duties of law enforcement officers require action immediately and directly inimical to the self-interest of individuals, which is often of the same nature as action inspired by malice, and to permit inquiry into the officers’ motives in every case would inject chaos into law enforcement.

Comment, “Immunity of Public Officials in Civil Damage Suits,” 5 Ark. L. Rev. 200 (1951). Those principles are controlling here. The trial judge was right in observing that Gibbs’s remedy is to apply to the State Claims Commission.

Affirmed.


text:
    Anna WARNER v. Joseph E. LIEBHABER and Steven E. LIEBHABER
    83-196
    661 S.W.2d 399
    Supreme Court of Arkansas
    Opinion delivered December 19, 1983

      Wilson, Grider ¿r Castleman, by: Murrey L. Grider, for appellant.

      Barrett, Wheatley, Smith ir Deacon, for appellees.
   George Rose Smith, Justice.

On June 20, 1980, after the plaintiff, Anna Warner, had slowed her car almost to a stop at the end of a stalled line of highway traffic, her car was struck from behind by a vehicle owned by the defendant Joseph E. Liebhaber and being driven by his 17-year-old son, also a defendant. Mrs. Warner brought this suit to recover $100,000 for personal injuries and $1,500 for property damage. The defendants admitted liability. The jury awarded Mrs. Warner $2,500. She appeals from the trial judge’s denial of her motion for a new trial, the sole ground for reversal being the asserted inadequacy of the verdict. Our jurisdiction includes tort cases. Rule 29 (1) (o).

Under ARCP Rule 59 (a) (5), the inadequacy of the recovery is a ground for a new trial even in the absence of other error. We sustain the trial judge’s denial of a new trial when the verdict is supported by substantial evidence and when, as is the usual case, the primary issue is that of liability. Ferrell v. Whittington, 271 Ark. 750, 610 S.W.2d 572 (1981). But when the primary issue is whether the award is adequate the test of substantial evidence is hardly appropriate, for even a very small award would ordinarily have at least some basis in substantial evidence. Consequently, when the only argument on appeal is the inadequacy of the award, we think our rule should be to sustain the trial judge’s denial of a new trial absent a clear and manifest abuse of discretion, a standard of review similar to that we follow when the primary issue is liability and the trial judge has granted a new trial. See Landis v. Hastings, 276 Ark. 135, 633 S.W.2d 26(1982).

In such a review of the trial court’s exercise of its discretion, an important consideration is obviously whether a fair-minded jury might reasonably have fixed the award at the challenged amount, here $2,500. In the present case the jury’s verdict is understandable and defensible, for two reasons.

First, the jury could have found that Mrs. Warner was not seriously injured in the collision. She testified that she was thrown to the floorboard, but the jury did not have to accept her interested testimony, especially as a driver would not ordinarily be thrown forward and downward when her car was struck from behind. On the other hand, Steven Liebhaber, the other driver, testified that it was raining and when he put on his brakes “the throttle stuck and we slid and j ust barely bumped the car. ’ ’ Except for Mrs. Warner no one in either car was hurt. There was no damage to the Liebhaber vehicle and no apparent damage to Mrs. Warner’s car. No issue of property damage was submitted to the jury. Thus the accident was arguably minor.

Second, the jury could find that Mrs. Warner’s principal items of damage — medical expenses totaling $ 12,285 — were not fairly attributable to whatever back pain she may have suffered. One of her doctors, in testifying for her, said that within three months before the accident she had had gynecological surgery and then a laminectomy for a ruptured disc, which caused severe back pain. She was recovering well when the accident occurred. Even so, his opinion three weeks after the accident was that her problem was primarily psychological. On direct examination this doctor testified:

It has been my experience that when cases are in litigation like this, as long as the litigation goes on, the patient’s prognosis is very poor. They’re almost not allowed to get well. . . .
I must tell you, in all fairness, I’m not trying to harm your case or place any undue negativism on your position, but it’s been my experience that as long as the patient is in ongoing litigation of this type, they almost never can get well. It’s virtually impossible.

Later on the doctor testified that termination of the litigation would be of therapeutic value to Mrs. Warner, one of her only chances of getting well.

Mrs. Warner was also treated by a psychiatrist and a psychologist, both of whom testified for her. The former said in effect that Mrs. Warner had problems owing to her operations and her marital troubles, which ended in divorce. This doctor testified in substance that she was looking for some focus for her existing emotional conflicts. When the accident occurred, in effect she blamed all her problems on it, though perhaps unconsciously. He said that Mrs. Warner did not really feel she was in need of psychiatric treatment, and as long as that was her belief there was very little he could do for her. The psychologist was of somewhat the same opinion. He had given her a complete course of treatment for pain management, but it did not have the results he had hoped for.

The jury was instructed, in the language of AMI Civil 2d, 2203 (1974), that they should consider the full extent of Mrs. Warner’s injuries, including the aggravation of a preexisting condition. Despite that instruction, the jury did not see fit to attribute all her medical expenses to whatever injury she may have sustained in the collision. In view of the testimony, that conclusion was not without adequate support.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Sam SMITH & Danny VAUGHN v. Earl R. DAVIS
    83-216
    663 S.W.2d 165
    Supreme Court of Arkansas
    Opinion delivered December 19, 1983

      Larry Hartsjield, for appellants.

      David Hodges, for appellee.
   Darrell Hickman, Justice.

This automobile accident case presents only one question: Whether the trial court erred in refusing to allow a policeman to give opinion testimony regarding the point of impact between the vehicles driven by one of the appellants and the appellee. While that decision was in keeping with some of our decisions, Univ. R. Evid. 701 and 702 have no doubt superseded those cases. Therefore, the judgment is reversed and the cause remanded. It is unnecessary to reach the issue of whether the appellants furnished before trial the name of a witness. The appellants’ attorney will no doubt be more diligent in complying with rules of discovery on a retrial.

The case arose from an accident near Tuckerman in Jackson County, Arkansas. Danny Vaughn was driving an 18-wheel tractor trailer owned by Sam Smith on Highway 37. He attempted to pass a vehicle driven by Davis going in the same direction. Undoubtedly one of the vehicles crossed the center line because a collision resulted, damaging both vehicles and injuring both Vaughn and the parties in Davis’ vehicle. Vaughn and Smith sued Davis, alleging negligence; Davis counterclaimed. The jury found that Vaughn was totally at fault and awarded Davis $2,715 in damages.

The appellants attempted to qualify an Arkansas state policeman who investigated the accident as an “expert” to testify where, in his opinion, the point of impact occurred. The officer was allowed to testify regarding the physical facts, the location of debris and skid marks. That is, the officer was able to give the usual information that is available to the jury about the accident, but not allowed to give his opinion of where the point of impact occurred. In some cases, directly on point, we have said that officers cannot testify as to the point of impact. All were before the adoption of the Uniform Rules of Evidence in 1976. S and S Construction Co. v. Stacks, 241 Ark. 1096, 411 S.W.2d 508 (1967); Reed v. Humphreys, 237 Ark. 315, 373 S.W.2d 580 (1963); Waters v. Coleman, 235 Ark. 559, 361 S.W.2d 268 (1962).

But in Nelson v. Busby, 246 Ark. 247, 437 S.W.2d 799 (1969), we allowed the opinion testimony of an investigating officer as to the point of impact where the only objection had been to the officer’s lack of experience and insufficient investigation. We said the objection was not well taken because the officer had detailed his experience and had established through his testimony that he had made a thorough investigation.

Rule 701 appreciably changed the use of opinion testimony in trials. Rule 701 applies to opinions by laymen, or nonexperts, and reads:

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) Rationally based on the perception of the witness; and (2) Helpful to a clear understanding of his testimony or the determination of a fact in issue.

Professor Weinstein believes this rule was intended to relax the requirements on the use of opinion testimony. He states for instance, about expert opinion testimony:

Because of the Federal Rules’ emphasis on liberalizing expert testimony, doubts about whether an expert’s testimony will be useful should generally be resolved in favor of admissibility unelss there are strong factors such as time or surprise favoring exclusions. The jury is intelligent enough, aided by counsel, to ignore what is unhelpful in its deliberations. 3 Weinstein’s Evidence para. 702 [02] (1982).

There are many precedents from other states that permit an investigating officer, who relates sufficient facts to support a conclusion, to give his opinion on the point of impact. E.g., Goslin v. Bacome, 107 Ariz. 432, 489 P.2d 242 (1971); Nizer v. Phelps, 252 Md. 185, 249 A.2d 112 (1969); Poston v. Clinton, 66 Wash. 2d 911, 406 P.2d 626 (1965); Grant v. Clarke, 78 Idaho 412, 305 P.2d 752 (1956); Zelayeta v. Pacific Greyhound, 104 Cal. App. 2d 716, 232 P.2d 572 (1951).

We need not expand our decision beyond the facts of this case: Where an officer investigates a vehicle accident, observes sufficient relevant evidence such as skid marks, debris from the vehicles, position of the vehicles, or makes other observations, and where he can rationally form an opinion about the point of impact, he should be allowed to testify as to that opinion.

It is for the trial court to determine whether proper foundation has been laid for the testimony. See Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982); Dixon v. State, 268 Ark. 471, 597 S.W.2d 77 (1980).

The appellants should have been allowed to try to qualify the state policeman to give his opinion on the point of impact.

Reversed and remanded.


text:
    Nellie MORTON, Executrix of the Estate of Mary Elizabeth FRENKEN, Deceased v. Nada McCOMB, Guardian of the Estate of Gertrude JARRETT, NCM
    83-242
    662 S.W.2d 471
    Supreme Court of Arkansas
    Opinion delivered December 19, 1983
    [Rehearing denied January 23, 1984.]

      Ponder & Jarboe, by: Harry L. Ponder, for appellant.

      King ir King, by: Jim King, for appellee.
   Darrell Hickman, Justice.

The two questions in this case are: (1) Whether two savings accounts at the Bank of Pocahontas were properly designated in writing as payable-on-death accounts, and (2) the meaning of a designation where an account is payable-on-death to three separate individuals, share and share alike, and only one of those individuals survives the owner of the account.

The case was submitted on an agreed set of facts to the Chancery Court of Randolph County. The chancery judge found that the accounts had been properly designated in writing as required by statute and our cases and that the survivor of the three individuals took the entire account. We affirm the judgment.

Mary Elizabeth Frenken opened two savings accounts at the Bank of Pocahontas and from their inception there is evidence that she intended the accounts to be payable-on-death accounts as authorized by Ark. Stat. Ann. § 67-552 (Repl. 1980). Mrs. Frenken signed two signature cards in January, 1976, and immediately below her signature on both was typed, “Mrs. Mary E. Frenken, Payable in case of death to: Mrs. Gertrude Jarrett, Mrs. Kate Million & Mrs. Mary E. Alexander, share and share alike.”

When Mrs. Frenken died only one of the three individuals designated survived her, Mrs. Gertrude Jarrett. The Bank of Pocahontas was allowed to interplead the money contained in the accounts and Mrs. Jarrett was represented by a guardian and claimed the entire proceeds of the savings accounts. The estate took the position that upon the death of Mrs. Frenken the money should be shared equally with the heirs of the deceased individuals designated in the accounts or their shares should revert to the estate.

In Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570 (1969), we discussed Ark. Stat. Ann. § 67-552 and held that there must be substantial compliance with the “designation in writing” requirements of that act. There had been no substantial compliance in the Cook case. In McDonald v. Treat, 268 Ark. 52, 593 S.W.2d 462 (1980), we dealt with a payable-on-death account which had not been designated in writing and reaffirmed the decision in Cook v. Bevill, supra. In this case it was plainly typed on the signature cards that these were payable-on-death accounts, the individuals were named who would receive the accounts if they survived Mrs. Frenken, and the cards were signed.

The fact that the typing was below the signatures in this case is of no consequence. There is no suggestion at all that the designations were typed after Mrs. Frenken signed the cards.

The other issue presents some problems but we do not hesitate in holding, as the chancellor held, that the survivor of the three named individuals should receive the proceeds of the savings accounts. The language of the applicable Arkansas statues decides the case. First, we have decided that Mrs. Frenken properly designated in writing that these were accounts to be paid upon her death. That complies with Ark. Stat. Ann. § 67-552 (e). Ark. Stat. Ann. § 67-552 (f) reads:

(f) Upon the death of the holder of the account or certificate of deposit, the person or persons designated by him and who have survived him shall be the owners of the same (asjoing tenants with right of survivorship if more than (1) and any payment made by the banking institution to any such persons shall be a complete discharge of the banking institution as to the amount paid. (Emphasis added.)

These were two accounts where more than one person was designated to receive the accounts and the statute clearly provides that where there is more than one person designated, they hold as joint tenants with right of survivorship. It is true in some instances the words “share and share alike” are interpreted to mean the estate would be held in common rather than jointly. But the property in question in this case is two savings accounts and their nature is governed by the appropriate legislation.

Affirmed.