author: Steele Hays, Justice.

text:
    Charles B. SANDERS d/b/a Fayetteville Marine v. Hila Mae WALKER
    89-15
    767 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered April 10, 1989

      Putnam & Maglothin Law Offices, by: Charles L. Stutte, for appellant.

      Everett & Gladwin, by: John C. Everett, for appellee.
   Steele Hays, Justice.

Appellant Charles B. Sanders, doing business as Fayetteville Marine, brought this action against appellee Hila Mae Walker for damages resulting from a fire in a building which housed Sanders’s retail boat business. The building, constructed around 1965, belonged to Ms. Walker and was occupied by Sanders under a verbal lease on a month to month basis. Sanders had been in the building since 1982, and the loss occurred on February 19, 1987.

Sanders’s complaint alleged that he was entitled to a recovery based on negligence, express and implied warranties of habitability, and strict liability. Prior to trial the court granted summary judgment on the issue of strict liability and at the close of the plaintiffs case granted a directed verdict on the allegations of negligence and breach of warranty. Charles Sanders has appealed. We affirm.

The test concerning the granting of a motion for a directed verdict by the trial court has been clearly stated. The evidence, with all reasonable inferences, is viewed in the light most favorable to the party opposing the motion, and given its highest and strongest probative value. When viewed in that light if the evidence is so lacking in substance that it would require that a jury verdict be set aside, the motion must be granted. Pritchard v. Times Southwest Broadcasting, Inc., 277 Ark. 458, 642 S.W.2d 877 (1982); Cowling v. Clinton Board of Education, 273 Ark. 214, 618 S.W.2d 158 (1981). Evidence is said to be substantial when it “is of sufficient force and character that it will, with reasonable and material certainty and precision, compel a conclusion one way or the other. It must force or induce the mind to pass beyond a suspicion or conjecture.” 4 R. Ford, Law on Evidence § 549 (1935); DuPont v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983).

Mr. Sanders and Ms. Walker had had previous dealings and were good friends. Sanders testified Ms. Walker had offered a written lease but he declined because the building was going to need some repairs and he did not want to assume that responsibility. “I did not ask Ms. Walker what kind of shape the building was in. I think the only conversation that took place was she asked me if I wanted it month to month or on a lease and I said month to month because of the fact that I don’t want to maintain it.” “I knew it was an old building.” Mr. Sanders and Ms. Walker did not specifically agree as to who would assume responsibility for wiring or other repairs.

When Sanders moved in there were large freezer units along one wall, but some months later Ms. Walker’s manager, Ronnie Skelton, made arrangements to remove them. After the units were removed Sanders noticed loose electrical wiring, but Ronnie Skelton assured him the wires were dead. Sanders was not aware of any problems with the electrical system from the time of occupancy until the fire.

Mr. Larry Poage, in charge of fire prevention and investigation for the Fayetteville Fire Department, participated in putting out the fire and then entered the building to investigate. He determined that the fire originated in a circuit box, which he believed failed to break properly, resulting in the fire. He testified that a short circuit occurred, which could have resulted from a surge of electrical power caused by a car striking a telephone pole, or from high winds, which had occurred the day of the fire, or from an appliance or piece of equipment in the building coming on, or from lightning, or “any one of a dozen things.” He said a power surge was a common occurrence and a circuit box was designed to switch and break off the power from going to that circuit. “I have seen situations in which circuit breakers don’t break or fall out when, say, lightning hits them. They don’t fall out, they just switch back, like a light switch. It is not uncommon for them to malfunction if lightning is around.” The gist of Mr. Poage’s testimony was that although he was confident the fire started in the circuit box, he could not say what caused it.

Mr. John Durham testified that at the time of the fire he was assistant Fire Inspector with the Fayetteville Fire Department assisting Captain Poage. He had inspected these premises in 1981 for fire prevention and had listed a number of violations of the fire code, including the lack of a cover on the circuit box. Whether these had been subsequently corrected, he did not know, except that after the fire he noticed that the cover on the circuit box had been replaced. He said none of the listed items from his inspection had anything to do with the fire. He attributed the fire to a malfunction in the main electrical distribution panel (the circuit box) on the “service side.” “It is my opinion that there was an undue stress or load on the inside of the electrical distribution panel. Why? I do not know.” “I do not know what caused the stress to be put on the system, but as a result, there was a weak link inside the box and we had our fire.” Mr. Durham testified that when he inspected the circuit box in 1981 he found no problems in it, other than the lack of a cover. He testified that he did not know what caused the electrical panel to fail, but acknowledged the same possible causes as Mr. Poage. “Though I don’t know what caused the undue stress, it is my opinion that the undue stress, when put into the system, resulting in a fire because there was a weak link in that panel box.”

I

Negligence

Appellant’s theory of negligence is threefold: a) that Ms. Walker was on notice before Mr. Sanders rented the building that the building was not in compliance with the local fire code; b) that after Sanders took possession Ms. Walker still maintained responsibility for the electrical system, as evidenced by Ronnie Skelton supervising the removal of the freezer units, and c) that had the electrical panel box and surge suppressor functioned properly, the fire would not have occurred.

Whatever might be said about the proof in support of those theories, one thing stands out — there was no proof that any negligence by the defendant was a proximate cause of appellant’s damage, an essential element of any claim of negligence. Grain Dealers Mutual Ins. Co. v. Porterfield, 287 Ark. 27, 695 S.W.2d 833 (1985). As to the items in nonconformance with the fire code, Mr. Durham’s uncontroverted testimony was that the items he noted in his 1981 inspection of the building had nothing to do with the fire. As to the removal of the freezer units, the evidence, also uncontroverted, was that the fire and the removal of the freezer units were unrelated. Whether or not it can be inferred that Ms. Walker assumed responsibility for the electrical system is ambiguous at best, but even if we could agree that she undertook that duty, there is no proof that her negligence permitted the condition to arise or that, by the exercise of reasonable care, she or agents could have prevented it. Without some fuller explanation of the reason the fire occurred, we believe the trial court was right to direct a verdict to the negligence counts of the complaint. Glidwell, Adm. v. Arkhola Sand and Gravel Co., 212 Ark. 838, 191 S.W.2d 455 (1948); Williams, Adm. v. Lauderdale, 209 Ark. 418, 191 S.W.2d 455 (1945); AMI 203.

II

Express and implied warranties of habitability

Appellant cites us to nothing that would sustain a finding of an express warranty by Ms. Walker as to the condition of the premises and the record refutes any such contention.

As to an implied warranty of habitability, appellant tracks the development of recent changes in the earlier common law of nonliability of landlords, citing cases from our own as well as other jurisdictions: Blagg v. Fred Hunt & Co., 272 Ark. 185, 612 S.W.2d 321 (1981); Sargent v. Ross, 113 N.H. 388, 308 A.2d 528 (1973); Kline v. Burns, 111 N.H. 87, 276 A.2d 248 (1971); Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970). Appellant contends, in short, that when Ms. Walker rented the building to Mr. Sanders she impliedly warranted the premises to be fundamentally safe.

In Wawak this court did recognize for the first time an implied warranty of fitness in a sale of a new dwelling. A decade later in Blagg v. Fred Hunt & Co., supra, the doctrine was extended to a sale involving parties who were not in privity with the original vendor-builder.

Appellee points to the obvious distinction between the case at bar and the Wawak and Blagg cases — the dwellings in Wawak and Blagg were newly constructed, both less than a year old, whereas the building in this case is easily twenty years old. In Blagg we specifically observed that an implied warranty will expire after a reasonable time. Without suggesting that on this proof a submissible factual issue existed for breach of an implied warranty, we believe that time had dissolved any warranty of the fitness of these premises.

Ill

Strict liability

We have very little in the way of an abstract on the issue of strict liability. The motion for summary judgment, the response and any supporting affidavits have not been abstracted and we are left with only a general impression of how this issue was presented to, and resolved by, the trial court. Appellant argues that a commercial building is a “product” within the meaning of the Arkansas strict liability statute. Ark. Code Ann. § 4-86-102 (1987). He cites Blagg v. Fred Hunt & Co., 272 Ark. 185, 612 S.W.2d 321 (1981), where we held that a cause of action based on strict liability could exist where the “product” was a newly constructed dwelling.

In this case, however, in addition to the problem of proximate cause, already noted, we must assume that the appellant failed to satisfy the trial judge that he could meet the requirements of § 4-86-102 by showing that Ms. Walker was “engaged in the business of. . .leasing, or otherwise distributing the product;” or that “[t]he product was supplied by [her] in a defective condition which rendered it unreasonably dangerous.” Certainly we find nothing in the record as abstracted that could support a factual finding that the “defect” in the circuit box existed in 1982 when the building was leased to appellant.

For the reasons stated, the judgment is affirmed.


source: Caselaw Access Project

author: David Newbern, Justice.

license: Public Domain

text:
    Brian Scott COLLINS v. STATE of Arkansas
    CR 89-27
    769 S.W.2d 402
    Supreme Court of Arkansas
    Opinion delivered April 10, 1989

      Jerome J. Paddock, for appellant.

      Steve Clark, Att’y Gen., by: R.B. Friedlander, Solicitor General, for appellee.
   David Newbern, Justice.

On January 4, 1988, the appellant, Brian Scott Collins, was adjudicated a delinquent child and was committed to the care of the Division of Children and Family Services. The commitment was, however, suspended for two years. Collins was ordered to appear on September 7, 1988, to respond to a petition to revoke the suspension. He failed to appear but was brought before Juvenile Referee Thomas A. Martin on September 9,1988. The abstract submitted by Collins shows that the referee made the following statement at the conclusion of the hearing:

I am revoking your suspended sentence and recommending to Judge McCorkindale that you be committed to the boy’s training school for a term of nine (9) months. That order will be entered shortly and you will be transported.

Collins argues two points. First, he contends the referee lacked authority because he had not been appointed by both the circuit judge and the probate judge to hear juvenile cases. Second, he contends the appointment of a juvenile referee pursuant to Act 14 of 1987 violates the requirements of Ark. Const, art. 7. The second point is valid and sufficient to dispose of the appeal, therefore, we need not address the first point.

Our understanding of the referee’s remark quoted above is that there was no doubt he was exercising the authority of the circuit judge in this case, even though the judge may have signed the final order. The referee purported to revoke the suspension personally and said he would recommend commitment, and then he said “[t]hat order will be entered shortly and you will be transported.” Just as in our recent decision in Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989), where we found the acts of the referee were unconstitutional in that they exceeded any authority which could possibly be given to a probate master or referee, we find the referee here was acting in an unconstitutional excess of any authority which could have been conferred upon him by the circuit court.

While the order pursuant to which Mr. Martin was appointed juvenile referee does not appear in the abstract, the state apparently concedes that the appointment was made pursuant to Act 14. Its main argument on this point is that Mr. Martin’s appointment was proper because it was permitted by Act 14 which, the state argues, is not unconstitutional.

The issue is whether the scheme of Act 14, and particularly § 6 of the act, for appointment of juvenile referees to act under the auspices of the circuit and probate courts violates Ark. Const, art. 7 by permitting assignment of judicial powers on a permanent basis to someone other than the courts created or authorized to be created by art. 7. We answered that question in Hutton v. Savage, supra. That decision involved a master acting pursuant to an order of a probate court. We held that appointment of a master pursuant to Act 14 amounted to the creation of a substitute judge in violation of Ark. Const, art. 7, § 34, which provides that the probate judge is to try issues of law and fact within the jurisdiction of the probate court. We noted that “a similar conflict arises” with respect to the circuit courts. We wrote:

Additionally, § 6 of Act 14 of 1987 impermissibly authorizes circuit and probate judges to appoint masters or referees to hear juvenile cases with such powers as may be granted by the circuit and probate judges and purports to vest those masters or referees with all the powers and authority of the judges. As such, § 6 of Act 14 of 1987 is unconstitutional.

We hold that the act of the referee in this case was in excess of the authority which may properly be delegated to a master, see Ark. R. Civ. P. 53, and that it was not cured by § 6 of Act 14 of 1987 which we have held to be unconstitutional and void to the extent it permits referees or masters to be substitute judges.

Reversed and remanded.


author: David N. Laser, Special Justice.

text:
    CITY OF LITTLE ROCK v. Virginia WEBER
    88-100
    767 S.W.2d 529
    Supreme Court of Arkansas
    Opinion delivered April 10, 1989

      Mark Stodola, City Attorney, by: Victra L. Fewell, Asst. City Att’y, for appellant.

      Perroni, Rauls & Looney, P.A., by: Rita S. Looney, for appellee.
   David N. Laser, Special Justice.

Appellee Virginia Weber sued the City of Little Rock, appellant, for damages she sustained when a Little Rock policeman, driving a city patrol car with blue lights and siren engaged, entered an intersection against a red light and struck her vehicle. The city moved for summary judgment on the basis of governmental immunity, which was denied by the trial court. The case proceeded to trial, resulting in a jury verdict for Weber in the amount of $4,750.00. The city lodged its appeal, contending that a municipality is absolutely immune from tort liability arising out of a city policeman’s negligent operation of an authorized emergency vehicle. The city also argues on appeal that the trial court erroneously instructed the jury on the standard of care applicable to the operation of an emergency vehicle. We affirm.

In response to a decision of this court setting aside the common law immunity of municipalities, Parish v. Pitts, 244 Ark. 1239, 429 S.W.2d 45 (1968), the Arkansas Legislature passed Act 165 of 1969 restoring governmental immunity. That Act, however, also included the following provision:

All political subdivisions shall carry liability insurance on all their motor vehicles in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act. . . .

Ark. Code Ann. § 21-9-303 (1987).

This statute was first interpreted in Sturdivant v. City of Farmington, 255 Ark. 415, 500 S.W.2d 769 (1973), a case arising out of a fatal collision between the city marshal of Farmington and plaintiffs intestate. Sturdivant held that the purpose of § 21-9-303 was to provide the public with a remedy against cities when injured by municipally owned vehicles. That purpose would be defeated unless the city, either through insurance or self-insurance, were liable to the extent of the stated limits. This result was reaffirmed in Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984). (Section 21-9-303 has subsequently been amended to specifically state that political subdivisions shall carry liability insurance or become self-insured. Ark. Code Ann. § 21-9-303 (Supp. 1987).)

It is argued by the City of Little Rock that this court should return to a test previously used to determine whether a state employee could be liable for negligently injuring another even though the state was constitutionally prohibited from being made a defendant in her own courts. Ark. Const, art. 5, § 20. Using that test, the state employee could be liable when his negligence constituted a violation of a duty imposed upon him by law in common with all other people, as opposed to negligent conduct arising out of a duty peculiar to his employment. Kelly v. Wood, 265 Ark. 337, 578 S.W.2d 566 (1979); Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979). For instance, in Kelly this court held that a state trooper could be liable for negligently running a stop sign while driving his patrol car to meet a friend for dinner. Using that test, the city argues that the operation of an authorized emergency vehicle by the police officer was obviously unique to his employment and thus the city should be immune from tort liability.

The city’s reliance on these cases is misplaced. The test used previously in those cases allowed an injured party to side step governmental immunity and seek relief against the employee when the duty of the employee breached was common to all people. It cannot be used by the city to create governmental immunity not otherwise available, as where a statute specifically provides that all political subdivisions shall carry liability insurance on their motor vehicles.

There is no indication in § 21-9-303 that the legislature intended to distinguish in any manner the circumstances to which it applied. In any event, we see no reason why a person injured by an emergency vehicle should be left without a remedy while persons may seek redress against a municipality for its employees’ negligence in the operation of all other vehicles.

To avoid confusion in this area, it should be pointed out that the rule in Grimmett and Kelly allowing suit against certain government employees has subsequently been abolished by Ark. Code Ann. § 19-10-305 (1987). That statute specifically provides immunity to officers and employees of the State of Arkansas from civil liability for acts or omissions within the course and scope of their employment. See Beaulieu v. Gray, 288 Ark. 395, 705 S.W.2d 880 (1986).

The City of Little Rock also argues for reversal that the trial court erred in its jury instructions regarding the standard of care applicable to the operation of authorized emergency vehicles. The trial court instructed the jury pursuant to Arkansas Model Jury Instruction (AMI) 305 that it was the duty of both parties to use ordinary care for their own safety and the safety of others. An instruction was also given based upon AMI 911 which sets out certain statutory privileges for drivers of emergency vehicles. These privileges allow the driver to proceed cautiously through a red light and give the right-of-way to emergency vehicles over other vehicles. The instruction also provided that these privileges do not relieve the driver of the emergency vehicle of the duty to exercise ordinary care.

The City of Little Rock argues that AMI 911 was incorrect, and contends that the jury should have been instructed that the city could be liable only if the driver acted with reckless disregard for the safety of others.

We first must address the issue which has been raised concerning whether this point of appeal has been properly preserved. The parties sent the city’s proposed jury instructions to the judge before trial which included proposed instructions as to the city’s standard of care. The instructions submitted by Weber defining negligence and holding the city to the standard of ordinary care were given over the objections of the city. The city attorney objected to the instructions for the record, stating with specificity how he contended such instructions incorrectly defined the city’s standard of care. The proposed instructions which the city submitted prior to trial were never given to the court reporter to be included in the transcript. Realizing this omission after receipt of the trial transcript and while the case was on appeal, the city requested that the record be supplemented to include the proposed instructions. This court granted certiorari to allow the trial court to consider the city’s request. Following a hearing, the trial court ruled that the instructions were not correctly proffered and refused to allow the record to be supplemented.

The city contends that submitting the instructions prior to trial and objecting to the instructions given preserved this issue for appeal. Weber argues that absent a proffer to the court reporter with a request that the instructions be made a part of the record, the objection is waived.

The procedure for preserving a jury instruction issue for appeal is stated in A.R.C.P. Rule 51 as follows:

No party may assign as error the giving or the failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection, and no party may assign as error the failure to instruct on any issue unless such party has submitted a proposed instruction on that issue.

Thus, when a party objects to an erroneous instruction of law which should not be given, all that is required is to timely state valid reasons for the objection. For instance, in Tandy Corp. v. Bone, 283 Ark. 399, 678 S.W.2d 312 (1984), the appellant argued the trial court erred in giving an instruction on punitive damages in a case involving an intentional tort. This court held it was not necessary for the appellant to proffer a substitute instruction to preserve that objection for appeal.

When the argument on appeal is a failure to give an instruction, then the party appealing must submit a proposed instruction on the issue. Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986). In Wallace, the appellant argued that the instruction given by the trial court on the issue of agency did not instruct the jury on apparent or implied authority of an agent. The appellant had a duty to submit a proposed instruction on that issue, and its failure to do so prohibited that argument on appeal.

In this case, clearly an instruction had to be given on the standard of care by which the jury could measure the officer’s conduct. AMI 305 and AMI 911 were given over the objection of appellant and in this connection trial counsel stated distinctly the matter to which he objected and the grounds of his objection. In fact the city stated for the record that in its opinion the proper standard of care was reckless disregard (for the safety of others) as opposed to ordinary care. This in our opinion constituted adequate compliance with A.R.C.P. Rule 51 to preserve the standard of care issue on appeal.

As relates to the appellant’s contention that certain instructions it submitted to the court in advance of trial should have been given by the court, we hold that appellant has not sufficiently complied with A.R.C.P. Rule 51 to preserve this issue on appeal. Simply giving a set of instructions to the trial judge prior to trial is not sufficient to allow this court to address the propriety of appellant’s proposed instructions. To so hold would place the responsibility of bringing a record up on appeal from which we can fully review the proceedings on the trial judge rather than on the appellant, where this court has many times said it belongs. Thigpen v. Polite, 289 Ark. 514, 712 S.W.2d 910 (1986); RAD-Razorback, Ltd. Partnership v. B.G. Coney Co., 289 Ark. 550, 713 S.W.2d 462 (1986).

Insofar as the applicable standard of care is concerned we hold that the trial court did not err in instructing that the city should be held to a standard of ordinary care as opposed to a standard of reckless disregard for the safety of others.

The trial court relied on AMI 911, which states in pertinent part that the driver of an emergency vehicle is entitled to operate the vehicle in accordance with the following traffic laws:

***
(b) The driver of an emergency vehicle is not required to stop at a stop light but must slow down as necessary for safety and may then proceed cautiously past the signal.
(d) An emergency vehicle has the right of way over other vehicles.

The part of the instruction which the city found objectionable states:

The existence of these privileges does not relieve the driver of an emergency vehicle of the duty to exercise ordinary care for the safety of others using the street.

The language in AMI 911 allowing the operator of an emergency vehicle to drive through a stop light is found in Ark. Code Ann. § 27-49-109 (1987). This statute is silent as to the standard of care for the driver. The statutory authority for instructing that the operator of an emergency vehicle has the right-of-way is found at Ark. Code Ann. §§ 27-37-202(e) and 27-51-901 (1987). Section 27-51-901(c) also provides:

This section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.

Arkansas Code Ann. §§ 27-51-202(a) and 27-51-204(b)(l) (1987) exempt drivers of emergency vehicles from the speed limitations applicable to other vehicles. Those statutes also state that these exemptions “shall not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the street [or highway], nor shall it protect the driver of any emergency vehicle from the consequence of a reckless disregard of the safety of others.” Although speeding was not alleged in this case, the city argues the standard of care should be the same.

Arkansas case law provides little guidance on this issue. In Healey & Roth v. Balmat, 189 Ark. 442, 74 S.W.2d 242 (1934), this court held that although an ambulance was on an emergency call, and had the superior right on the highway to other traffic, this “did not relieve it from the consequences of its negligence, if it were guilty of negligence.” The negligence of an ambulance driver was also at issue in Freeman & Cobb v. Reeves, 241 Ark. 867, 410 S.W.2d 740 (1967). After holding that the trial court correctly submitted to the jury the issue of whether the privately owned ambulance was an authorized emergency vehicle, this court stated:

Of course, even if an ambulance is exempted from observing certain traffic regulations and has the right-of-way under appropriate circumstances, it does not follow that this is an exemption from the duty to exercise care commensurate with the circumstances for the safety of other travelers or persons. . . . We think the evidence was sufficient to justify the submission of the question whether there was negligence on the part of appellants to the jury and to sustain the jury’s finding that there was such negligence. . . .

These cases indicate that a driver of an emergency vehicle is held to a standard of ordinary care in the exercise of these statutory privileges. Decisions from other jurisdictions have dealt more directly with language similar or identical to the Arkansas statutes at issue. A Nebraska Supreme Court decision, Lee v. City of Omaha, 209 Neb. 345, 307 N.W.2d 800 (1981), quoted the following statute which is part of its legislation granting privileges to drivers of emergency vehicles:

The provisions of this section shall not relieve the driver of such emergency vehicle from the duty to.drive with due regard for the safety of all persons, nor shall such provisions protect such driver from the consequences of his reckless disregard for the safety of others.

The officer in that case was judged by a standard of ordinary care and the Court said the officer “is required to observe the care which a reasonable prudent man would exercise in the discharge of official duties of a like nature under like circumstances.”

See also, McMillan v. Newton, 306 S.E.2d 470 (N.C. 1983); Franklin v. Dade County, 230 S.E.2d 730 (Fla. 1970); Mason v. Bitton, 85 Wash. 2d 321, 534 P.2d 1360 (1975); Brown v. City of New Orleans, 464 So.2d 976 (La. App. 1985); Brummett v. County of Sacramento, 21 Cal.3rd 880, 582 P.2d 952 (1978).

We held that the instructions given by the trial court correctly stated the appropriate standard of care.

Affirmed.

Glaze, J., not participating.


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

text:
    ARKANSAS DEPARTMENT OF HUMAN SERVICES, A Division of Children and Family Services v. Howard TEMPLETON, Probate Judge, Craighead County, Arkansas and Arkansas Department of Human Services, A Division of Children and Family Services v. Tom Keith, Circuit/Chancery Judge, Benton County, Arkansas
    89-97 & 89-102
    769 S.W.2d 404
    Supreme Court of Arkansas
    Opinion delivered April 12, 1989

      Debby Thetford Nye, General Counsel, and S. Whittington Brown, Deputy General Counsel, for petitioners.

      Steve Clark, Att’y Gen., by: Tom Gay, Deputy Att’y Gen., for respondents.
   Tom Glaze, Justice.

Petitioner, the Arkansas Department of Human Services, Division of Children and Family Services (hereafter DHS), requests this court for writs of mandamus to compel respondents, Probate Judges Howard Templeton and Tom Keith, to hear certain juvenile cases pending in their respective courts. In support of its requests, DHS asserts each judge has appointed a special master to hear juvenile matters in violation of Rule 53 of the Arkansas Rules of Civil Procedure and the specific directives of this court as set out in Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989). Because both actions filed here by DHS involve the same legal issues arising from similar circumstances, we consolidate the actions for purposes of this court’s review and decision writing.

We first note that DHS requested the wrong remedy in its petitions. A writ of mandamus does not lie to control the discretion of a trial court or tribunal. State v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969). However, where the lower court’s order is entered without or in excess of jurisdiction, we can carve through the technicality and treat the application as one for certiorari. Wasson v. Dodge, 192 Ark. 728, 416 S.W.2d 316 (1936); see also First Nat’l Bank v. Roberts, 242 Ark. 912, 416 S.W.2d 319 (1967). The settled rule is that when there is a remedy by appeal, a writ of certiorari will not be granted unless there was a want of jurisdiction, or an excess in its jurisdiction, by the court below. State v. Nelson, 246 Ark. at 217, 438 S.W.2d at 38. That want of jurisdiction or act in excess of jurisdiction must be apparent on the face of the record. Id. Such are the situations in the two matters pending before us.

In our recent Hutton decision, the court ruled that the probate court’s use of a master in a juvenile case was in excess of its jurisdiction, and, in doing so, we held that any reference to a master under Rule 53 should be the exception and not the rule. We reached a similar holding with respect to circuit courts in Collins v. State, 298 Ark. 380, 769 S.W.2d 402 (1989). Actually, the ruling concerning the use of masters reiterated what he had already said in Gipson v. Brown, 295 Ark. 371, 749 S.W.2d 297 (1988). See also State v. Nelson, 246 Ark. at 218-220, 438 S.W.2d at 39-40.

In one of the cases before us, Judge Templeton, acting under Rule 53, appointed a master to hear a juvenile case, explaining that he was unable to conduct a hearing required by the Juvenile Code “due to scheduling and other conflicts.” In the second case, Judge Keith, acting pursuant to Rule 53, entered similar but separate orders that appointed a master to hear four different juvenile cases. Judge Keith explained in his orders that he was “unavailable” and that the master, who had previously functioned as juvenile master for Benton County, was familiar with the facts and previous history of the four juvenile cases. DHS contends that, under the circumstances described, neither judge had authority to appoint masters and that the appointments demonstrate the continued illegal use of special masters for juvenile cases. We agree.

Some confusion was to be expected after a juvenile system operated under the auspices of the county courts, which had been functioning for nearly 100 years, was ruled unconstitutional. Juvenile matters are no longer heard by the county courts or their referees and masters, but rather are to be decided by full-fledged courts of general jurisdiction presided over by full-time judges — an event that was long overdue.

These courts of general jurisdiction, which are now empowered to decide juvenile matters, are regulated by and subject to the applicable rules set forth in the Arkansas Rules of Civil Procedure, including, but not limited to, Rule 53. Section (B) of this rule specifically provides that the “reference to a master shall be the exception and not the rule” and except in matters of account and difficult computation of damages, “a reference shall be made only upon a showing that some exceptional condition requires it.” Certainly a simple statement of unavailability or conflict by the trial judge is not a showing of exceptional conditions.

If a trial court has problems with congested dockets or conflicts in scheduling, and the prompt and proper administration of justice warrant it, the temporary assignment of judges may be had pursuant to Ark. Code Ann. § 16-10-101 (1987). Or, when the temporary replacement of a judge is necessary, such a procedure is provided under Ark. Const. art. 7, §§ 21 and 22. Wessell Bros. Foundation Drilling Co. v. Crossett Pub. School Dist. No. 52, 287 Ark. 415, 701 S.W.2d 99 (1985); See also Ark. R. Civ. P. Admin. Order Number 1.

Since courts with jurisdiction of juvenile actions now may avail themselves of the applicable laws that have been generally relied upon by general jurisdiction courts' to avoid delays in trying cases on their dockets, the employment of part-time masters for this purpose should be unnecessary. A crowded or congested docket has never been determined a valid purpose for the appointment of a master under ARCP Rule 53; nor is a master appropriate because he or she is more familiar with the case or because the judge is unavailable. Clearly, Judge Temple-ton’s and Judge Keith’s appointments of masters in the juvenile cases pending in their respective courts were unauthorized and in excess of their jurisdiction. Therefore, we grant writs of certiorari quashing the judges’ orders that appointed juvenile masters as well as those orders ensuing from such appointments.

Our decision today should, we think, resolve the doubts that seem to have lingered since the Hutton decision as it affected the use of masters in juvenile cases. Clearly, any attempt or pretense to use Rule 53 to continue the employment of masters to hear juvenile actions, as has been the situation in the past, is now contrary to the law. Although not all juvenile judgeship positions are in operation at the moment, we are confident that most of our trial judges are meeting the challenge and responsibility of hearing and deciding juvenile matters on the same par as matters concerning property and monetary issues. While a few problems or questions may remain to be resolved in implementing the state’s new juvenile court structure, hopefully, the use (or more appropriately the non-use) of masters or referees by trial courts in such juvenile matters has been laid to rest by this court’s decision in Hutton and the one we hand down today.

Purtle, J., dissents. Hays, J., concurs.

Steele Hays, Justice,

concurring. I expressed my views on the use of masters in a dissenting opinion in Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989). I was a minority of one in that position and since the majority view was decisive I saw no need to restate it in Collins v. State, 298 Ark. 380, 769 S.W.2d 402 (1989), decided this week. Now the majority position is further solidified in the decision of these consolidated cases and while I have not changed my view, I see nothing to be gained by continuing to espouse a position that has no likelihood of prevailing. On that basis, and the fact that given the approach taken by the majority the petitioner is entitled to the relief sought, I concur.

John I. Purtle, Justice,

dissenting. I believe the majority takes a stand which is too rigid. There is no room for any give and take. Of course it all started with Walker v. Department of Human Services, 291 Ark. 43, 722 S.W.2d 558 (1987), in which I concurred along with Justice Hickman. I stated in Walker that the legislature had the power to assign cases involving dependent-neglected children to any existing court.

I went along with the decision in Hutton v. Savage, 293 Ark. 256, 769 S.W.2d 394 (1989) because I agreed that the legislature could not give judges the authority to appoint another person a judge to help carry the load. I did not forsee that the opinion in Hutton would be construed as prohibiting judges from appointing special masters in every situation. Masters and referees may be necessary to keep up with the demand that dependent-neglected child cases require. ARCP Rule 53(b) states that “reference to a master shall be the exception and not the rule.” Cases of dependent-neglected children constitute such an exception. After all, juvenile cases are only a small part of the circuit judge’s and chancellor’s present caseload. We created Rule 53 and we can amend it if necessary to accommodate the requirements announced in Walker and Hutton.

The courts and the people need a bridge from the present until the new juvenile code becomes effective on August 1, 1989. This court has the authority and the duty pursuant to Article 7, Section 4, and Amendment 28 of the Constitution of Arkansas to provide a procedure which will suffice until the new law becomes effective.

The majority “can carve through the technicality” and reach the desired result, but at the same time refuse to allow trial courts to “carve through the technicality” and serve the legitimate purposes of the juvenile justice system. Certainly these cases should be decided by full-fledged judges, but judges cannot fully investigate all cases from start to finish. Judges acting on other cases are not required to attend to every detail concerning every case filed. No doubt present judges are willing to work a little harder — until the new law becomes effective.

I agree with the majority that judges and chancellors cannot anoint clones to perform their judicial functions. However, this court should not hand them a brick while they are attempting to swim the stream. Under the circumstances, I would exercise a little more tolerance in appointing masters and referees until the new law takes effect. Trial courts must have some discretion in matters such as this in order to accomplish what is demanded by the law. Generally speaking we leave much to the discretion of trial courts. Certainly this is just such an occasion. Common sense and justice dictate that we be strong enough to bend.


author: Jack Holt, Jr., Chief Justice.

text:
    Joe Samuel BROWN v. STATE of Arkansas
    CR 88-187
    767 S.W.2d 313
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989]
    [Rehearing denied May 15, 1989.]

      Morris & Hodge, by: Henry C. Morris, for appellant.

      Steve Clark, Att’y Gen., by: Jeannette Denhammcclendon, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

Appellant Joe Samuel Brown pleaded guilty to first degree battery and was sentenced to a five-year term. He filed a Rule 37 petition for post-conviction relief, which was denied by Judge Berlin C. Jones without an evidentiary hearing. On appeal, Brown contends the Rule 37 court erred in failing to (1) conduct an evidentiary hearing; (2) obtain a transcript of prior proceedings; and (3) grant his petition.

Ordinarily, the judgment or decree appealed from is an essential component of the abstract. Davis v. Wingfield, 297 Ark. 57, 759 S.W.2d 219 (1988). Because Brown did not abstract the court’s order denying the petition, we must affirm. Ark. Sup. Ct. R. 9(d).

Affirmed.


author: Darrell Hickman, Justice. Steele Hays, Justice,

text:
    Thomas Lloyd GRISWOLD v. STATE of Arkansas
    CR 88-174
    768 S.W.2d 35
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989

      Young & Finley, by: Dale W. Finley, for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

This is an appeal from an order denying the appellant a new trial for ineffective assistance of counsel. We remand the case for further proceedings.

The appellant’s convictions for the rape of three young girls were affirmed by this court. Griswold v. State, 290 Ark. 79, 716 S.W.2d 767 (1986). In 1987 he sought permission, pro se, to proceed with a Rule 37 petition, claiming that his lawyer has failed to call crucial witnesses whom he knew could testify to the victims’ lack of credibility. In an unpublished per curiam dated November 9, 1987, we ordered that a hearing be held limited to the allegation regarding the failure to investigate the potential witnesses named by the petitioner.

The appellant’s attorney, Robert Irwin, testified at the hearing and admitted he was aware that certain witnesses had information relevant to the appellant’s case: Linda Bright, a social worker in Louisiana; Dr. Alan Klein, a psychologist in Louisiana; Homer Griswold, the appellant’s brother, and Homer’s wife, Dr. Beth Griswold, a psychologist.

Irwin telephoned the Griswolds, who lived in Newcastle, Wyoming, and recorded the conversation. They told Irwin that two of the appellant’s alleged victims had wrongly accused them of abuse and had fabricated stories concerning other adults as well.

Dr. Griswold also provided Irwin with written reports prepared by Linda Bright and Dr. Alan Klein. Bright’s report indicated generally that the girls had distorted perceptions of reality. Dr. Klein’s report noted that one of the girls had retracted her claim that she had been abused by the Griswolds.

Irwin did not contact either Klein or Bright. As he testified, he decided to “put all his eggs in one basket” and rely on Homer and Beth Griswold to undermine the credibility of the victims. He admitted that Klein and Bright had knowledge of the victims’ psychological problems, but felt that Dr. Griswold would be his “number one, best witness” and Homer Griswold the second best witness.

The trial was apparently set several times and finally scheduled for October 4. Irwin sent blank subpoenas to the Griswolds in Wyoming so they could clear any absence for trial with their employers. On October 4, the trial was reset for October 18. Additional subpoenas were sent, but they did not reach the Griswolds until just a few days before trial.

Irwin spoke with the witnesses on the phone the Wednesday before the trial on Friday. Dr. Griswold said she informed him that a winter storm had made traveling hazardous in their area and that her husband had injured himself. On the day before trial, she confirmed that it would be impossible for them to attend. She testified that she asked Irwin to try for a continuance, but he said he could not get one. The appellant learned, for the first time, on the day before his trial that his key witnesses would not appear.

Irwin testified that the Griswolds’ testimony was very important. While he did not believe the testimony of either Klein or Bright would be crucial, he stated, “there is no question in my mind that the outcome of the case might have been different had [the Griswolds] appeared.” Irwin did not recall Dr. Griswold mentioning a continuance. Nevertheless, he did not move for a continuance when it was discovered they would not be available. Irwin testified he came to believe the Griswolds did not intend to come to Arkansas because they feared charges would be made against them.

The trial judge denied the appellant’s petition. He decided it was not counsel’s fault that the Griswolds did not appear. He concluded the Griswolds did not want to come to the trial and declined to rule on whether Irwin should have asked for a continuance, saying the only issue before him was whether the witnesses had been properly investigated.

While we do not fault the trial judge for reading our per curiam narrowly, and perhaps its wording was too restrictive, it would indeed make justice an empty vessel to say a lawyer should investigate and prepare for trial but is not required to take all reasonable steps necessary to get critical evidence introduced.

Therefore we remand the case for the trial judge to determine if Griswold was denied effective assistance of counsel because his attorney did not move for a continuance. If the appellant brings another appeal, he should abstract the trial record. Prejudice must be demonstrated.

Remanded.

Hays and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. In our per curiam order of November 9, 1987, Griswold v. State, we stated as grounds for remanding this case that the petitioner had alleged that his trial counsel failed to adequately investigate the case or prepare a defense:

Specifically, the lack of investigation lies in failing to contact witnesses who, according to petitioner, would give testimony as to the victims’ history of fabricating claims of abuse and their general lack of credibility. The petitioner names the witnesses, at least two of whom are psychology professionals familiar with two of the victims, and alleges that he asked his attorney to call them but that his attorney refused. . . .The hearing will be limited to the allegation regarding the failure to investigate potential witnesses named by the petitioner.” [My emphasis.]

The trial court did exactly as we directed and heard testimony from which he concluded that defense counsel had not neglected to investigate and prepare. That finding was not clearly against the preponderance of the evidence.

As to Dr. Klein and Ms. Linda Bright, the record tells us almost nothing of what Ms. Bright might testify to and the report of Dr. Klein was made in 1980, whereas the offenses involving these children occurred from August 1983 to July 1984. Moreover, it is clear Dr. Klein’s information came entirely from Dr. Griswold, as defense counsel testified:

His background information, however, came from Dr. Griswold. The information about the grandfather, the allegations of abuse by the grandfather, the abuse by petitioner, and the allegations of abuse against Dr. Gris-wold, all came from her [referring to Dr. Griswold]. [My emphasis.]

The plan of defense counsel was to have Dr. Griswold, a clinical psychologist, testify as an expert, “relying on all the information available to her,” including Dr. Klein’s report. In short, these were decisions of trial strategy which we have said repeatedly are not a proper basis for ineffective assistance of counsel. Knappenberger v. State, 283 Ark. 210, 672 S.W.2d 54 (1984); Leasure v. State, 254 Ark. 961, 497 S.W.2d 1 (1973).

The evidence is undisputed that the Griswolds told defense counsel they would come for the trial, but refused “at the last moment,” telling defense counsel that an injury to Mr. Griswold’s foot made it impossible for them to attend the trial. At the hearing after remand, however, petitioner contended that “a blizzard” prevented the Griswolds from leaving their home in Newcastle, Wyoming. The injury was not mentioned.

Now the majority has changed the premises altogether and reversed the trial court, not for failure to comply with the per curiam order, but for conducting a hearing which did exactly as we instructed. The case is remanded a second time to address a wholly different issue, i.e., whether defense counsel should have sought a continuance to obtain the presence of the Griswolds, an issue not raised in petitioner’s fifteen page Rule 37 petition nor mentioned in our per curiam. That issue could have been resolved at the last hearing if the petitioner had asserted it and it is, I believe, inconsistent with the purpose of Rule 37 to permit it to be raised in retrospect, thereby necessitating two hearings. All of this in spite of a total lack of any showing by the petitioner that he was so prejudiced by these developments that his trial must be regarded as unfair. Strickland v. Washington, 466 U.S. 668 (1984).

I respectfully dissent.


author: Darrell Hickman, Justice.

text:
    Billy Frank GROSS v. STATE of Arkansas
    CR 88-195
    767 S.W.2d 314
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989

      Robert A. Newcomb, for appellant.

      Steve Clark, Att’y Gen., by: Ann Purvis, Asst. Att’y Gen., for appellee.
   Darrell Hickman, Justice.

Billy Frank Gross was convicted of attempted capital murder and sentenced to fifty years imprisonment. A related charge of felon in possession of a firearm was severed.

Gross argues that a prospective juror should have been stricken for cause, two guns seized pursuant to the arrest should have been excluded, and the capital felony murder statute is unconstitutional. Finding no error, we affirm his conviction.

The charges arose from a disturbance reported at the Gross residence in Little Rock. Officer Kenneth Temple met Lynette Schoenberg and drove to that residence about 3:30 a.m. on March 26,1988. Officer Kris Bell arrived to assist. The officers knocked on the door several times but received no response. Officer Temple testified that the second time he and Officer Bell went to the door Ms. Schoenberg went with them. She began yelling and finally received a response from inside the residence. She said, “Billy, let my mother out,” at which time they heard a man say, “get away from the door or I’m going to blow you away.” A shot from inside the home was then fired through the door. The officers identified themselves as police officers. Officer Temple then heard, “you better have a badge.” At that time Officer Temple told him, “I do have a badge.” The person inside replied, “Well, if you’ve got a badge, I’m going to f------kill you.”

According to both officers, Gross opened the door and fired shots at Officer Bell, using a silver colored revolver. Officer Bell returned fire. No one was hurt.

Gross was told to come out. Officer Bell saw him come out and then go back inside the house. When he then came out a second time, the police arrested him. Officer Temple found a black revolver when he searched the area. The officers immediately entered the house to see if anyone was hurt during the shooting. They knew that at least Ms. Schoenberg’s mother was in the home and that there were several other people reportedly there. Officer J. D. Martin testified that they found two women, a child, and an older white male in the house. No one was injured. A silver colored .22 revolver was found just inside the door by Officer Martin.

The judge refused to excuse potential juror O. L. Plunkett for cause, simply because several of his relatives were either police officers or had been police officers. At one point he also stated that he would believe a police officer over someone else. The appellant peremptorily challenged Plunkett and argues he was forced to accept Fred Meux because he was out of peremptory challenges. Even if the trial judge was wrong in not excusing Plunkett, the test is that the appellant must demonstrate that the juror actually seated should have been struck for cause. Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). Fred Meux stated that “my wife’s cousin’s relative is on the State Police but I don’t get to see him very often.” The appellant as much as concedes that he could not challenge Mr. Meux for cause. In Ross v. Oklahoma, 108 S.Ct. 2273 (1988), the U.S. Supreme Court said: “So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated.” We find no error on this point.

The appellant also argues the silver colored revolver was inadmissible because Gross had already been arrested and was in custody when the officers entered the house and seized the gun without a search warrant. The police knew there were others in the house and entered to see if anyone was injured; shots had been fired at the house. Under the circumstances the officers were clearly justified, indeed duty bound, to enter the house to check on the well-being of the occupants. The gun was in plain view just inside the door. We agree with the trial court that the officers were justified in seizing the gun since there were exigent circumstances which made their entry lawful.

In Mincy v. Arizona, 437 U.S. 385 (1978), the court said:

‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency’. . . And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities.

See also Holder v. State, 290 Ark. 458, 721 S.W.2d 614 (1986).

The appellant argues that the black revolver was irrelevant, because the police officers identified the silver revolver as the gun the appellant used when he shot at Officer Bell. However, the black revolver explained the number of shots fired. The officers testified that one shot was fired through the door and two shots fired at Officer Bell. There was also testimony another occupant of the house had also fired a gun that evening. When the officers checked the guns, they found two shots had been fired from the silver revolver and two from the black revolver.

The appellant claims the capital murder statute, which singles out the attempt to kill or the killing of a policeman or judge, and certain other public officials, is unconstitutional because it is special legislation in violation of Amendment 14 of the Arkansas Constitution. We answered this argument in Swindler v. State, 264 Ark. 107, 569 S.W.2d 120 (1978). Nor is Ark. Code Ann. § 5-3-201 unconstitutionally vague because it allows the prosecution to elect to charge one with this crime or aggravated assault. United States v. Batchelder, 442 U.S. 114 (1979).

Affirmed.


text:
    George PARRISH, et ux. v. Charles Thomas NEWTON, et al.
    89-28
    768 S.W.2d 17
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989

      Jeff Slaton, for appellant.

      Roy & Lambert, by: David E. Morris, for appellee.
   Darrell Hickman, Justice.

This is an automobile accident case. The jury returned a verdict in favor of appellants, Mr. and Mrs. Parrish, and awarded them a total of $5,300 in damages. The Parrishes filed a motion for a new trial, claiming evidentiary errors and an inadequate verdict, which the court denied. Finding no error, we affirm.

The accident happened April 14, 1987, on Highway 68 in Springdale. Appellee Charles Newton was driving his father’s car. While attempting to enter Highway 68 from a side road, Charles pulled out in front of the Parrish car, causing the accident.

The Parrishes sued Charles Newton, asking for damages for medical expenses, property damage, pain and suffering, lost wages and loss of consortium. Newton answered that upon entering the intersection, his vehicle had stalled without warning. By an amended complaint, the Parrishes added Lawrence Newton, the father of Charles Newton, as a defendant, claiming that he had negligently failed to maintain his vehicle.

The case went to trial, and the jury found that Charles Newton was totally responsible for the accident. The father was dismissed on a directed verdict. The jury awarded Lorraine Parrish $5,000 and awarded George Parrish $300. The appellants’ motion for a new trial asserted three errors: (1) the trial court improperly admitted certain documents into evidence showing Mrs. Parrish was receiving benefits from a collateral source; (2) testimony that Lawrence Newton’s wife knew the car was in poor mechanical condition was improperly excluded as hearsay; and (3) the amount of the verdict was inadequate.

Mrs. Parrish claimed lost wages from the date of the accident until the time of trial. The appellees contended that any wages lost after June 2,1987, were not the result of the accident but other physical problems, specifically gallbladder disease.

The appellants’ witness, Dr. Tom Whiting, testified that in the fall and winter of 1987 he did excuse Mrs. Parrish from work for one period of nine weeks and on another occasion for three weeks. He indicated that Mrs. Parrish’s inability to work could have been caused by a combination of her accident injuries and her gallbladder surgery.

The doctor had signed two forms which had been submitted by Mrs. Parrish to her employer, Tyson Foods. The forms were titled “Tyson Disability Security Claim.” The forms indicated that Mrs. Parrish was unable to work from September 28 to November 27 because of “gallbladder disease with surgery,” and from December 23 to January 11 for shoulder and neck pains. The judge allowed the appellees to introduce the forms after deleting their title captions.

The appellants objected that the collateral source rule had been violated. The rule is that evidence showing an injured person received benefits from a collateral source is inadmissible unless relevant for some purpose other than the mitigation of damages. Amos v. Stroud, 252 Ark. 1100, 482 S.W.2d 592 (1972).

Here, the forms were relevant for the purpose of determining causation. Mrs. Parrish claimed all her lost wages were attributable to the accident. The doctor testified that it was a combination of the accident and Mrs. Parrish’s illness. But the forms tended to support the appellees’ position that the damages were due to factors unrelated to the accident. There was nothing on the forms which clearly indicated Mrs. Parrish had received any collateral benefits.

In short, the trial judge was called upon to weigh the probative value of the forms against the unfair prejudice that could result. Such a matter is within the discretion of the court. Oxford v. Hamilton, 297 Ark. 512, 763 S.W.2d 83 (1989). Under the circumstances of this case, we find no abuse of discretion in admitting the forms.

The appellants’ claim that the forms were introduced in bad faith is not borne out by the record. Immediately upon objection, the appellees assured the trial court that the forms were being offered to show causation and readily agreed to deleting any offending portions.

The appellants attempted to introduce testimony of two witnesses who would repeat a statement made by Lawrence Newton’s wife that there were numerous problems with her husband’s vehicle. The trial judge properly refused to admit the evidence.

Though Mrs. Newton was not a party to the case, the appellants attempted to introduce her statement as an admission by a party opponent,* claiming she was her husband’s agent regarding the vehicle. See A.R.E. Rule 801(d)(2)(iv).

One spouse is not necessarily the agent of the other solely by virtue of the marital relationship. Cooper v. Cooper, 225 Ark. 626, 284 S.W.2d 617 (1955). It was shown that Mrs. Newton often rode in the car as a passenger while pursuing family errands. But the appellants never made a case that she was Mr. Newton’s agent for the purpose of maintaining the vehicle.

Finally, the appellants question the amount of the verdict. The jury received separate damage instructions on Mr. and Mrs. Parrish. Mr. Parrish’s instruction told the jury it could award property damages for the vehicle. The verdict for him was $300, although damages to the car were at least $1,400. However, Mrs. Parrish gave all the testimony regarding damage to the vehicle, and the car was in both their names. Even the appellants admit that the award for the car could be included in the $5,000 given to Mrs. Parrish.

In addition to property damage, Mrs. Parrish suffered about $850 in medical bills and six weeks of lost wages, which $5,000 would adequately compensate. All other damages were greatly disputed. When the issue is the alleged inadequacy of the damage award, the denial of a new trial will be sustained unless a clear and manifest abuse of discretion is seen. Fields v. Stovall, 297 Ark. 402, 762 S.W.2d 783 (1989). We cannot say that occurred.

Affirmed.


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

text:
    W.J.B. “Sonny” AXSOM II v. APARTMENT HOUSE BUILDERS, INC.
    88-235
    768 S.W.2d 19
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989
    [Rehearing denied May 15, 1989.]

      Davidson Law Firm, by: Charles Phillip Boyd, Jr., for appellant.

      Friday, Eldredge & Clark, by: James M. Simpson, Scott J. Lancaster and Hank Jackson, for appellee.

      Holt, C.J., and Hickman, J., not participating.

   John I. Purtle, Justice.

The appellant, an employee of a subcontractor, filed suit for injuries which he sustained while on the job and which he asserted were the result of the negligence of the prime contractor. After a jury trial a verdict was returned in favor of the appellee. The appellant argues that the trial court erred in failing to give Arkansas Model Instruction (AMI) 1104 or 1106 and that the court should have instructed the jury on strict liability. The appellant failed to preserve the issue of strict liability for appellate review. We agree that AMI 1104 should have been modified and given or that AMI 1106 should have been given. The failure to give either of the requested instructions was prejudicial error.

The appellant was at the time of the events discussed herein an employee of Riverside, Inc., a subsidiary and subcontractor for Apartment House Builders, Inc., appellee. It is admitted that the general contractor occupied the premises, but a dispute arises on the question of whether he had a duty to maintain the premises in a safe condition for the employees of the subcontractor. The contract is apparently silent on responsibilities for keeping the premises in safe working order. One clause in the contract states: “The subcontractor shall at all times keep the building and premises clear of debris arising out of the operation of this subcontract.” Although debris could become a factor in causing injury, it cannot be said that this clause created an express duty on the part of the subcontractor to keep the premises in a safe working condition. It is also not disputed that the contractor and subcontractor in this case agreed to cooperate in scheduling their work in a manner so as to create as little conflict as possible between the two parties in performing their responsibilities under the contract.

The appellant was injured on July 18, 1986, while descending an unfinished metal stairway between the second and third floor of the premises under construction. He caught his foot on a metal lip on the outside rim of a pan-like step, which was to be filled with concrete, and fell from the third floor level to the second floor level, receiving a severe fracture of his right wrist. The allegation in the complaint was that the stairway was unlit, had no handrails or protective guard, and was unfinished. Subsequently the complaint was amended to allege that the incomplete stairway was a product under the Products Liability Act and that it was defective and unreasonably dangerous.

The appellant argues that the court erred in failing to present the issue of strict liability to the jury for consideration. However, the appellant did not offer instructions on this subject or, if an unsatisfactory instruction was offered, did not preserve his objection or offer another instruction. Simply put, he did not preserve his appellate rights on this issue.

From the record it appears that another subcontractor was responsible for pouring the concrete in the steps of the stairway. Although Riverside, Inc., installed the metal frame of the stairway, it was the prime contractor who had directed the stairway to be erected in the first place, and it was its responsibility to notify the other subcontractor when to pour the concrete.

The facts are not the major issue in this appeal. The responsibilities and duties between a contractor and subcontractor constitute the point at issue. After the evidence had been presented and the court was going over the instructions to be given, the appellant requested AMI 1104 and 1106. However, the court refused to give these instructions on the basis that AMI 301, as modified, would be given and that it explained the duty to exercise ordinary care sufficiently for the jury to understand the case. The appellant argued to the court that he was clearly an invitee; therefore the duty owed to him was that contained in AMI 1104. The attorney added: “If the court feels there was an issue as to whether he was a business invitee or licensee, then AMI 1106, at the very minimum, should be given.” AMI 1104 as presented to the court by the appellant’s counsel stated: “In this case Sonny Axsom was a business invitee upon the premises of Apartment House Builders, Inc.”

AMI 1106 was requested and it appears to have been properly drawn to frame the issues before the jury. AMI 1106 put the question of “whether Sonny Axsom was a licensee or an invitee” to the jury for a decision. If the question was not in issue, then 1104, possibly modified to say “If you find Sonny Axom was a business invitee . . . ,” would have been appropriate. The question presented for resolution in this appeal is the duty owed by a prime contractor who is responsible for the construction premises to the employees of its subcontractor.

A case which is quite close to the present one is Gordon v. Matson, 246 Ark. 533, 439 S.W.2d 627 (1969), where the court stated:

It appears to be the general rule that the responsibilities of the prime contractor to employees of the subcontractor on the job are comparable to the duties of the owner of the premises. This is a duty to exercise ordinary care and to warn in the event there are any unusually hazardous conditions existing which might affect the welfare of the employees.

The Gordon opinion also recognized that the prime contractor is responsible for injuries to the subcontractor’s employees if the prime contractor has undertaken to perform certain duties or activities and has done so negligently. There is a distinct difference in the Gordon case and the present case in that the injury in Gordon was caused by a hoist which was under the exclusive control of the subcontractor, and it was conceded that the prime contractor did not exercise any supervision or control over any of the activities of the subcontractor or its employees.

Westated in Ollar v. Spakes, 269 Ark. 488, 601 S.W.2d 868 (1980), that “it is the duty of an owner or occupier of land to his business invitees to maintain a reasonably safe condition for those coming upon his premises.” The Ollar opinion went on to extend this duty to the areas immediately adjacent to the property where the invitee is visiting if the owner or occupier knew of dangerous conditions not known by the invitees.

A case factually similar to the present case in some respects is that of Daniel Construction Co. v. Holden, 266 Ark. 43, 585 S.W.2d 6 (1979). Holden was an employee of a subcontractor and was injured on the job site while doing something unrelated to the duties assigned to him by the subcontractor. After Holden received a jury verdict in the amount of $38,500, the prime contractor appealed to this court and obtained a reversal. Holden was not engaged in the performance of his duties at the time of his injury. He fell through a stairwell opening from one floor to another in an apartment building under construction after the close of work hours. He had gone to his private automobile, had obtained his personal clothing, and had come back inside the apartment building for the purpose of changing clothes. He stepped into an unfinished stairwell and was injured. In that case the appellant conceded that employees of the subcontractor were business invitees of the general contractor while performing their work on the job site, pursuant to the terms of the contract. This court found that Holden had crossed the boundaries of being an invitee and became instead either a licensee or a trespasser. There are no such allegations in the case before us. It is undisputed that the appellant was engaged in the performance of his duties as foreman of the subcontractor.

The Eighth Circuit Court of Appeals interpreted the Arkansas law on this subject in Dunn v. Brown and Root, Inc., 455 F.2d 717 (8th Cir. 1970), and stated that “where the prime contractor is itself guilty of negligence causing or contributing to the injury, it cannot escape liability. . . . [I]t appears that a prime contractor may be held liable for failure to perform a duty which it has undertaken.” In reaching this decision the Circuit Court of Appeals quoted from Gordon v. Matson, supra, likening the position of a prime contractor to that of any owner or occupier of land and the position of a subcontractor’s employee to that of a business invitee. The heart of the ruling was that it is the duty of an owner or occupier of land to exercise ordinary care and to warn invitees in the event there are unusually dangerous conditions existing which might affect the welfare of the invitees.

In none of the cases cited is there a bright line holding that a prime contractor is always responsible to a subcontractor’s employee who is injured while performing the duties of the subcontractor. Thus, the general rule is that in the absence of statutory requirement, contractual obligation, or undertaking of another party, the prime contractor in possession of the construction premises is responsible for injuries which arise because of its negligence. The common thread running through all of the Arkansas cases that we have reviewed leads us to conclude that we must make a determination on the merits of each case and consider the specific facts before we can determine whether AMI 1104 or 1106 is mandated. The reason for the stairway being unlit is disputed as is the reason for the concrete not being poured in the shell steps of the stairway. It is not disputed that the contractor was carrying on other phases of the work during the same time the subcontractor was performing its duties.

AMI Civil 2d 301 does not mention the duties of a general contractor to those coming upon the premises. Therefore, we disagree with the trial court’s holding that the submission of either of the proffered instructions would have been cumulative or duplicative, or that they .would have added nothing to the plaintiff’s case. The proffered instructions, on the other hand, speak directly to the appellee’s duties to the appellant.

This court held in Beevers v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967), that “it is error to refuse to give a specific instruction correctly and clearly applying the law to the facts of the case, even though the law in a general way is covered by the charge given, unless it appears that prejudice has not resulted.” We cannot say that prejudice did not result from the failure to give one of these instructions.

Reversed and remanded.

Hickman, J., not participating.

Hays, J., dissents.

Steele Hays, Justice,

dissenting. I disagree with the majority that the appellant has demonstrated error by the trial court which requires reversal. Appellant contends that when an employee of a subcontractor is injured on the job site and sues the general contractor, the giving of AMI 1104 or 1106 is “mandatory,” not by reason of the particular circumstances of the case, but by virtue of the relationship between the parties.

There are no cases from this court, nor, so far as I can determine, from other jurisdictions which hold that an employee of a subcontractor is, ipso facto, a business visitor or invitee of the general contractor. Certainly nothing cited in the majority opinion so holds. I submit that is not the law and ought not to be. The duty owing by the general contractor depends upon the particular facts of the case, the issue being whether the general contractor has that degree of control and possession of the area where an injury occurs that it can be said there is a duty to maintain such premises in a reasonably safe condition. Thus the duty arises not simply from the relationship, but from the responsibilities undertaken.

The general contractor in control of a structure or premises owes to the employees of any other contractor rightfully thereon a duty to exercise ordinary care to keep the structure or premises in a safe condition for their use. This duty, however, is coextensive only with the general contractor’s possession and control of the premises — that is, it devolves upon him because of the control undertaken or exercised by him, rather than merely because of his position as general contractor. [My emphasis.]

13 Am. Jur. 2d Building and Construction Contracts § 135.

The rule is correctly stated in Kennedy v. United States Construction Co., 545 F.2d 81 (1976):

If a general contractor retains control over the premises where a subcontractor is working, then the general contractor owes a duty to employees of the subcontractor to use ordinary care to maintain the premises in a reasonably safe condition for the use of those employees.

The “premises” where appellant’s injury occurred consisted of a metal stairway which appellant’s own employer installed, consisting of steps fashioned like a rectangular dish or pan into which concrete was to be poured. Another subcontractor was to pour the concrete. The majority opinion states that it was the responsibility of the general contractor to notify the other subcontractor when to pour the concrete. I find nothing in the record as abstracted to support this assertion, but assuming it to be correct, standing alone it would hardly override every other consideration as to who controlled the premises. We do not know whether the other subcontractor had been notified or even whether it was time for the concrete to be poured. In short, it is clear that whether the general contractor or one or more subcontractors was responsible for maintaining these premises was a factual issue. The trial court heard the proof in its entirety and rejected the theory that AMI 1104 or 1106 was “mandatory.” Appellant has not shown that ruling to have been erroneous.

The majority seems to concede that appellant was entitled, at most, only to a modified version of AMI 1104, but impliedly puts the responsibility on the trial judge to make that alteration. However, that responsibility expressly rests on the litigant, not the trial judge. Even if it could be assumed the appellant’s proof justified an instruction patterned after AMI 1104 he failed to present a proper instruction to the trial court. ARCP Rule 51; Peoples Bank & Trust Co. v. Wallace, 290 Ark. 589, 721 S.W.2d 659 (1986); Curtis Communications v. Collar, 11 Ark. App. 14, 665 S.W.2d 301 (1984). Appellant took the; position that AMI 1104 was “mandatory” by reason of the relationship between the parties. That was a mistaken assumption of the law and it follows that the trial court should be affirmed.


text:
    Roderic M. BELL, Sr., Roderic M. Bell, Jr., Jerome C. Bell, Frances B. Bell and Mattye H. Acuff v. Doris J. WILSON
    88-306
    768 S.W.2d 23
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989

      Ball, Mourton & Adams, by: Phillip A. Moon, for appellant.

      Epley & Epley, Ltd., by: Lewis E. Epley, Jr., for appellee.
   Steele Hays, Justice.

In 1966 William A. Hill and Theodore F. Mariani, as trustees for “Georgetown Associates,” purchased some 323 acres of land in Benton County. On January 14,1967, Theodore F. Mariani, William A. Hill, Dr. Charles F. Hufnagel, Dr. John F. Gillespie, and Roderic M. Bell, Sr., entered into a joint venture agreement under the name of “Georgetown Associates” for the purpose of acquiring and developing the 323 acres of land. Subsequent to the execution of the joint venture agreement, the ‘real property’s acreage was reduced by various conveyances, and now consists of approximately 215 acres of land.

In 1969, Doris J. Wilson, the appellee, purchased an interest in the joint venture from Dr. John Gillespie. Over the years various members of the joint venture transferred their interest resulting in the appellants Roderic Bell, Sr., Roderic Bell, Jr., Jerome Bell, Frances Bell, and Mattye Acuff — collectively owning an 87.5% undivided interest. Doris Wilson, the appellee, owns the remaining 12.5% interest.

The appellants filed a complaint for dissolution of the joint venture and sought only to have the jointly held property sold at public auction, with the proceeds divided among the joint venturers. Doris Wilson counterclaimed, seeking a partition in kind of her 12.5 % undivided interest. The chancellor held that a 12.5% portion of the real property could be partitioned in kind “without great prejudice to the owners,” and appointed five commissioners, pursuant to Ark. Code Ann. § 18-60-414(a) (1987), to conduct the partition. The chancellor also ordered Doris Wilson to pay the appellants $ 1,611.06 for her share of the taxes, insurance, property improvements, maintenance, repairs, and fire protection for the last five years.

On December 29, 1987, the commissioners filed a unanimous report with the court. The appellants moved to set aside the report, renewing their argument that the property could not be divided in kind. The court considered this motion on February 9 and 23 of 1988. After hearing testimony from Mr. Russell Atchley, chairman of the commissioners, as to the method and manner of partitioning the land, the chancellor confirmed the commissioners’ report. An order approving the Commissioners’ Deed was later issued. The appellants appeal from the chancellor’s order confirming the commissioner’s report arguing that the commissioner’s report should be set aside.

The appellee has moved to dismiss the appeal as untimely, thus, the threshold issue is whether the case must be affirmed on that basis. The chancellor ordered partition in a decree filed on December 31,1986. Appellee points out that notice of appeal was filed on April 27, 1988, well past the thirty day period for filing notice of appeal. Appellee relies on Smith v. Smith, 235 Ark. 932, 362 S.W.2d 719 (1962), where the partition decree was entered on April 15, 1961, and the order of confirmation on January 16, 1962. The court held in Smith that the partition must be affirmed because no notice of appeal was filed within thirty days of the partition decree: “A decree partitioning land is a final decree from which an appeal could have been prosecuted.” See Branstetter v. Branstetter, 130 Ark. 301, 197 S.W. 688 (1917).

However, more recently in Dorazio v. Davis, 283 Ark. 65, 671 S.W.2d 173 (1984), we recognized that a decree ordering partition either in kind or by a sale and division of the proceeds is not a final order from which an appeal must be taken. We think that is the better view, as it avoids multiple appeals. We expressly overrule Smith v. Smith, and those cases holding that the appeal must be taken at an interlocutory stage in the proceedings.

Turning to the merits, the appellants first contend the decree ordering partition simply directed the commissioners to partition the land, and thus restricted their discretion in determining whether the land was susceptible of partition without great prejudice to the owners. The appellants argue that the commissioners were unaware of their statutory duty to report back to the court if they deemed that a partition could not be accomplished fairly. Ark. Code Ann. § 18-60-415(a) (1987) provides:

The commissioners shall immediately proceed to make a partition according to the judgment of the court, unless it shall appear to them or a majority of them, that partition of the premises cannot be made without great prejudice to the owners.

By relying on the subordinate language in this statute, the appellants’ argument would shift the authority to weigh the equities and to determine if partition in kind can be accomplished from the chancellor to the commissioners. We believe that position is contrary to our partition scheme and to our case law. See McNeely v. Bone, 287 Ark. 339, 698 S.W.2d 512 (1985).

Under our statutory scheme the chancellor ordinarily initially determines the interests of the parties and whether partition should be ordered. Those issues having been resolved, the chancellor may then appoint commissioners to partition the land, if possible, according to the interests previously determined. Of course, if the complexities of the case are such that the commissioners deem it impossible to partition the land, they report back to the court and the chancellor then decides whether to confirm, set aside, or remand that report, the final decision resting with the chancellor. In this case, the position of the appellants from the outset was that the land should be sold, rather than partitioned in kind. That being so, the question of partition in kind was the paramount issue at the trial consuming three days. The question was thoroughly developed by lay and expert testimony, as well as by photographs, charts and topographical maps of the terrain. At the end of that proceeding the chancellor announced his finding that the property could be partitioned in kind and that finding was fully supported by the evidence. The chancellor then issued a decree of partition and appointed commissioners to make the partition in kind. While it is true, as appellants contend, that Mr. Atchley testified that the commissioners did not consider “as a body” whether the property could be partitioned without great prejudice to the owners, he also testified that he was familiar with the partition statutes, that he reviewed the statutes after the commissioners met and, notably, that he believed the partition which the commissioners arrived at did not cause great prejudice to the owners. That testimony with the directive of the chancellor that the commissioners consider both the quality and quantity of the tract to be divided, given its highest probative force, permits an inference that the commissioners were not unaware that they had the option to report back that the property was incapable of division in kind.

We recognize that in practice the chancellor initially determines the interests of the parties and whether partition, either in kind or through a sale, should be had, and does not ordinarily decide whether partition in kind is appropriate before the commissioners are appointed. But we find nothing in our statutory scheme that renders that order of procedure inflexible. In fact, the use of the word “may” rather than “shall” in Ark. Code Ann. § 18-60-414 (1987), suggests that the deployment of commissioners is permissive.

The appellants also argue that neither the chancellor, nor the commissioners considered the appellants’ separate and distinct interests before partitioning the land. The partition statutes do require the court to take into consideration the respective rights and interests of the parties to the action. However, the appellants did not seek a partition in kind. Therefore, the chancellor considered himself without proper authority to divide their interest in kind and thus considered their remaining interests collectively.

Again, the crux of appellants’ argument focuses on their contention that the property was incapable of being equitably divided. As previously stated, this is a question for the chancellor. The commissioners might have partitioned the land, believing that there were only two owners of the property, but the chancellor was aware of the separate interests, and no doubt considered all these interests when he approved the commissioners’ report. After hearing the report of the commissioners, and the evidence presented, the chancellor found and declared that the commissioners made a fair and just division of the property. Considering the commissioners’ report, and the conflicting testimony as to whether the land could be partitioned, the chancellor’s finding does not appear to be clearly erroneous. We think the commissioners and the trial court were in a better position to make that determination, O’Mary v. Dunn, 261 Ark. 323, 547 S.W.2d 758 (1977), and accordingly the decree is affirmed.

       The boundaries of Benton County were later changed by the legislature and the tract now lies in Carroll County.

       Three commissioners were first appointed and when one declined to serve the number was increased to five — one selected by the appellants, one by the appellee, and one by the chancellor pursuant to a stipulation.


text:
    Sandra Real OLMSTEAD v. Arvin H. LOGAN
    89-17
    768 S.W.2d 26
    Supreme Court of Arkansas
    Opinion delivered April 17, 1989

      Ozark Legal Services, by: Margaret E. Reger and Marcia Mclvor, for appellant.

      Stripling & Morgan, by: M. Edward Morgan, for appellee.

      Steve Clark, Att’y Gen., by: Oían W. Reeves, Asst. Att’y Gen., for intervenor.
   Steele Hays, Justice.

This litigation puts at issue the constitutionality of replevin procedures under Ark. Code Ann. §§ 18-60-810 and 811 (1987). The trial court upheld the constitutionality of the statutes. However, we find it necessary to remand because the attorney general was not notified of the constitutional challenge pursuant to the requirements of Ark. Code Ann. § 16-lll-106(b) (1987)....

Appellant Sandra Olmstead purchased a 1977 Pontiac automobile from appellee Arvin Logan, agreeing to pay $300 down and $100 per month for six months. When a dispute arose over the cost of repairs, Ms. Olmstead refused to make the monthly payments. Mr. Logan filed a complaint and affidavit for replevin under § 18-60-810. The circuit clerk issued a summons and an order directing the sheriff to deliver the automobile to Logan, which was done.

Ms. Olmstead filed an answer and counter-claim alleging false representations and challenging the constitutionality of the order of replevin issued pursuant to § 18-60-810. At a trial before the court the constitutional issue was taken under advisement. The trial judge subsequently denied the counter-claim and ruled that Mr. Logan was entitled to possession of the vehicle. On appeal Ms. Olmstead contends that she was deprived of property without due process of law under the Fourteenth Amendment, and deprived of the right to. testify in her own behalf.

Appellant points out that in Fuentes v. Shevin, 407 U.S. 67 (1972), the Supreme Court invalidated a Florida replevin statute which was not materially different from the Arkansas statute, holding that it was a violation of procedural due process for a state to summarily deprive a person of property without prior notice and an opportunity to be heard. Later cases dealing with similar issues are Mitchell v. W.T. Grant Co., 416 U.S. 600 (1974); North Georgia Finishing v. Di-Chem, 419 U.S. 601 (1975); and Matthews v. Eldridge, 424 U.S. 319 (1976). It is conceded that following the Fuentes decision, the Arkansas General Assembly revised the replevin procedures in light of Fuentes (Ark. Code Ann. § 18-60-801, et seq.), however, the new enactment contains this anomalous provision: “[this act] shall not repeal any existing law pertaining to the recovery of personal property by parties claiming an interest therein.” § 18-60-802. For reasons that are not stated, appellee elected to follow the pre-existing route, eschewing the more recent replevin procedures.

We do not address the merits of appellant’s arguments, because the Attorney General was not notified in accordance with § 16-11 l-106(b), providing that “in any proceeding” if a statute is alleged to be unconstitutional the Attorney General of the state shall also be served with a copy of the proceeding and be entitled to be heard. While this appeal was pending the Attorney General moved to intervene, which we granted, and now argues that the case must be reversed for failure to give the required notice and to afford him the right to be heard. Roberts v. Watts, 263 Ark. 822, 568 S.W.2d 1 (1978).

While we have said that notice to the Attorney General is not a jurisdictional requirement, nevertheless it is generally reversible error not to give the notice. City of Little Rock v. Cash, 277 Ark. 494, 644 S.W.2d 229 (1982). Exceptional circumstances may render the omission harmless, as where the record discloses that all points pro and con have been argued and fully developed by litigants who are clearly adversarial. Here, we find no indication that the arguments were fully developed before the trial court. Moreover, it is evident that appellant is prepared to seriously challenge the constitutionality of the earlier replevin statutory scheme and that is a sufficient basis for reversal. Estate of Epperson, 284 Ark. 35, 679 S.W.2d 792 (1984).

Appellant’s second point, i.e., that the trial court erred in denying her the right to testify because she was not listed as a witness in her response to interrogatories, is rendered moot by reversal of the case on the previous point. Presumably the issue will not arise on remand.

REMANDED.