author: J. Fred Jones, Justice.

text:
    C. FINKBEINER, INC., et al v. Isiah FLOWERS JR.
    5-5630
    471 S.W. 2d 772
    Opinion delivered October 25, 1971

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellants. •

      Gannaway, Darrow & Hanshaw, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the claimant-appellee, Isiah Flowers, Jr., sustained a compensable injury to his back while in the employment of the appellant, C. Fink-' beiner, Inc. Flowers was awarded compensation based on a 25% permanent partial disability to the body as a whole by the Commission. The award was affirmed on appeal to the Pulaski County Circuit Court and Finkbeiner relies on the following points for reversal:

“There was no substantial evidence to justify an award of 25% permanent partial disability.
That even under the doctrine of Glass v. Edens, there was no substantial evidence supporting an award of 25% permanent partial disability.”

The record is not clear as to the mechanics of the injury sustained by Flowers, but it is clear that he did receive an injury to his back on April 17, 1969, and it was stipulated that the injury was compensable. Flowers’ claim before the referee, as stated by his attorney, was for a 20% permanent partial disability rating on the basis of aggravation of a congenital condition and for an additional 15% permanent partial disability based on a loss in earning capacity, making a total of 35% permanent partial disability claimed by Flowers as a result of his injury. The question before us on this appeal is whether there is any substantial evidence to support the Commission’s finding that Flowers suffered a 25% permanent partial disability as a result of the injury.

Flowers testified before the referee that he was 25 years of age and had worked for Finkbeiner, doing heavy lifting and maintenance work without difficulty, for approximately three years. He testified that prior to his injury on April 17, 1969, he had never injured his back and had never suffered any disability or trouble with his back. He testified that following his injury and his release by the doctors to return to work, he reported back to work for Finkbeiner and after working approximately three hours he was discharged. He testified that he then applied to another packing company and was interviewed for employment, but after revealing the facts of his prior injury he was not employed. He testified that he applied to the unemployment office and was advised that there were several openings available for the type work he had been accustomed to doing, but that he would not be able to do that type of work and would have to find something light. He testified that about one-half month prior to the date of hearing he did obtain employment from the Cedar Hill Corporation cleaning up apartments, “floors and stuff like that,” and that he was so employed at the time of the hearing. He testified that he is earning $1.75 per hour in his present employment and was earning $1.95 per hour at the time of his injury. He testified that he still wears a back brace and is still taking exercises prescribed by the doctors who treated him following his injury.

Dr. Joe K. Lester, an orthopedic surgeon in Little Rock, examined Mr. Flowers upon referral by Dr. Jim R. Warden and under date of May 29, 1969, he reported his findings that Flowers had a gibbus of the lower dorsal area of the spine with increased kyphosis in this region. He reported that X-rays of the cervical spine revealed straightening of the cervical lordotic curve, and that a neutral lateral view reveals straightening and a tendency toward reversal of the cervical lordotic curve in the midportion. In the lumbar spine Dr. Lester found a markedly accentuated lumbosacral angle but with the disc spaces well maintained. On the film of the thoracic (dorsal) spine he found nothing wrong with the architecture throughout with the exception of the areas in the gibbus deformity which he considered to be at T-ll. He attributed this deformity to a congenital abnormality with incomplete formation of the vertebral body possibly caused by infection in early life but most likely congenital. In this report Dr. Lester then states:

“Dr. Warden, this patient had a extremely precarious back situation in the lower dorsal area and has, of course, had this since his early formative years. This has become symptomatic following the industrial accident in which he was involved. The findings in the cervical area may well be associated with the fall which he describes, although in the opinion of this examiner, they should be relatively short in duration.
# # #
This patient should not return to work in a situattion which requires prolonged standing, excessive bending or any lifting whatsoever.”

On June 22, 1969, Dr. Lester reported that Flowers was utilizing his back brace with good range of motion but accompanied by pain in the area of the deformity. Dr. Lester concluded this report as follows:

“At this time, he was advised that he could discontinue physical therapy as it is felt that maximum improvement has been obtained from such. He, by all means, should continue the use of the brace and the exercise program. He was advised that he must get a job that did not require heavy lifting and is much more sedentary in nature. Accordingly, at this time, he was referred to the Arkansas Rehabilitation Service.
This patient has at least 20% permanent partial disability of the body as a whole on the nature of a congenital abnormality. This congenital abnormality became symptomatic because of an industrial injury which he sustained. In the opinion of this examiner on this basis at least half of this disability is attributable to the industrial injury.
From this standpoint of the Company and the Insurance Carrier, it is tragic that this man was ever permitted to assume gainful employment of the type in which he was employed. If, at all possible in the future, such cases should be ruled out by pre-employment physical examination.” (Emphasis added).

Dr. Charles N. McKenzie, another orthopedic surgeon of Little Rock, examined Flowers in consultation upon referral by the compensation insurance carrier on July 25, 1969. Dr. McKenzie found Flowers to be normal in movement and range of motion in the cervical dorsal and lumbar areas of the spine, but on X-rays found the anomalous development of T-ll with anterior half of the vertebra being underdeveloped and with some mild gibbus present. He diagnosed Flowers’ condition as anomalous development of the lower dorsal spine with secondary gibbus development. Dr. McKenzie was of the opinion that Flowers was able to resume his work, and that he suffered no permanent partial disability as a result of his injury.

The full Commission adopted the referee’s opinion in this case with the exception of the award of attorney’s fee, which is not in issue. Arriving at an overall 25% permanent partial disability in this case, the referee points out a significant observation which we feel states a proper basis for substantial evidence supporting the overall award of 25% permanent partial disability. The referee’s statement is as follows:

“The referee, noting that claimant must wear a back brace at all times during the day and was told to refrain from work requiring prolonged standing, bending or lifting, feels the residual disability, to be 25% to the body as a whole.”

As above pointed out, Dr. Lester found that Flowers had at least a 20% permanent partial disability to the body as a whole, but Dr. Lester attributed only half of this to the results of the injury and the other half to the congenital deformity in the appellee’s spine. Dr. Lester does not attempt to distinguish between the two except by reference that the congenital deformity makes the appellee’s spine highly susceptible to injury resulting in disability. There is no evidence that Flowers ever experienced any disability in doing any of the work he did for Finkbeiner or for anyone else prior to his injury upon which this claim is based. On the contrary, he testified that he had never experienced any trouble with his back prior to the injury and his testimony was not refuted.

We agree with the appellee that in McDaniel v. Hilyard Drilling Co., 233 Ark. 142, 343 S. W. 2d 416, we followed the rule stated by Larson in vol. 2, § 59 of his work on Compensation Law that:

“. . . when industrial injury precipitates disability from a latent prior condition, such as . . . back weakness and the like, the entire disability is compensable. ..”

See also Hamilton v. Kelly-Nelson Const. Co., 228 Ark. 612, 309 S. W. 2d 323, and Sturgis Bros. v. Mays, 208 Ark. 1017, 188 S. W. 2d 629.

We are of the opinion, therefore, that Dr. Lester’s findings and conclusions are substantial evidence that Flowers now has at least a 20% permanent partial disability to his body as a whole brought about as a result of his injury. We are also of the opinion that since Flowers is now required to wear a back brace and is limited to employment on jobs which are much more sedentary in nature than the job he was doing at the time of his injury, there is substantial evidence that his future earning capacity has been cut to some degree and is sufficient to support the additional 5% permanent partial disability awarded by the Commission.

Finding the percentage or extent of permanent disability caused by industrial injury has never become an exact science under our workmen’s compensation law in Arkansas; and the mere fact that the referee and the Commission used the phrase “to the body as a whole” in finding that Flowers has 5% more disability than Dr. Lester estimated as the minimum, does not indicate to us that the Commission only considered medical evidence and simply found that Flowers’ disability was 5% more than the doctor said that it was.

The injury here, and the functional disability, were all in Flowers’ back. So as a practical matter in this case it is immaterial whether the full 25% is related to “the body as a whole” or to “total disability.” They both amount to the same in number of weeks to be paid and in the amount to be paid each week.

The case of Ray v. Shelnutt Nursing Home, 246 Ark. 571, 439 S. W. 2d 41, cited by the appellant is distinguishable on the facts from the case at bar. Quoting from our opinion in Shelnutt:

. . [T]he appellant gave her work history prior to her injury, but gave no testimony as to work history, attempts to work, or ability or inability to work since her injury and surgery.”

In the case at bar it is apparently necessary for Flowers to wear his back brace at all times during the day. He returned to his former employment and was discharged after working about three hours. He was interviewed for employment by the Brown Packing Company and turned down. He applied to the unemployment office for work but was advised there was nothing available which he was able to do. The facts in the case at bar are more in point with the facts in Wilson & Co. v. Christman, 244 Ark. 132, 424 S. W. 2d 863, cited in Shelnutt, than they are with the facts in the Shelnutt case.

The judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    MISSOURI PACIFIC RAILROAD COMPANY v. W. S. FOX & SONS, INC.
    5-5711
    472 S.W. 2d 726
    Opinion delivered October 25, 1971
    [Rehearing denied December 6, 1971.]

      William J. Smith and George Pike Jr., for appellant.

      Coleman, Gantt, Ramsay ir Cox, for appellee.
   J. Fred Jones, Justice.

The Missouri Pacific Railroad Company filed suit against W. S. Fox & Sons, Inc. in the Pulaski County Circuit Court alleging that Missouri Pacific is a corporation organized and existing under the laws of Missouri; that it is authorized to do business in the State of Arkansas and is doing business in Pulaski County, Arkansas; that on November 24, 1970, some of its railroad cars were destroyed by fire as a result of the negligence of W. S. Fox & Sons, Inc., in Sheridan [Grant County], Arkansas. The complaint also alleged a contractual “hold harmless agreement” between Missouri Pacific and Fox & Sons, and alleged damage in the amount of $13,000 for which judgment was prayed. Fox & Sons appeared specially and filed a motion to quash service of process upon it in Grant County for the reason that the venue of the action was improperly laid in Pulaski County. The motion to quash was granted by the trial court and the complaint was dismissed without prejudice.

On appeal to this court Missouri Pacific presents the question of law for our determination clearly stated in the point it relies on, as follows:

“A foreign corporation has its residence under Ark. Stats. § 27-611 in the county in which its principal office and place of business in Arkansas is located, just as does a domestic corporation.”

Ark. Stat. Ann. § 27-611 (Repl. 1962) provides as follows:

“Any action for damages to personal property by wrongful or negligent act may be brought either in the county where the accident occurred which caused the damage or in the county of the residence of the person who was the owner of the property at the time the cause of action arose.”

The question then, is whether Missouri Pacific can maintain its suit in Pulaski County where its main Arkansas office and principal place of business is located, or must it file its suit in Grant County where the “accident occurred that caused the damage.” Missouri Pacific seems to recognize that in order to maintain its suit in Pulaski County it must not only be a “person” within the meaning of the statute, but that it must also have its “residence” in Pulaski County within the meaning of the statute.

It is true, as argued by Missouri Pacific, that in East Texas Motor Freight Lines, Inc. v. Wood, Judge, 218 Ark. 211, 235 S. W. 2d 882, we did hold that within the meaning of the statute “the word ‘person’ includes a corporation as well as a natural person.” We also recognized in Texas Motor Freight that a corporation may have a “residence” within the meaning of the statute. In- the Texas Motor Freight case, Arkansas Motor Freight Lines, Inc., a domestic corporation, filed suit in Sebastian County, Arkansas, against East Texas Motor Freight Lines, Inc., a Texas corporation, alleging damages to personal property belonging to Arkansas Motor Freight when one of its trucks was involved in a collision with an East Texas truck in Hot Spring County, Arkansas. The matter reached this court through a petition for prohibition to Sebastian County Circuit Court, Wood, Judge.

As to the “residence” requirement under the statute, the effect of our decision in the East Texas case was to recognize the domestic corporation as a resident of Sebastian County in Arkansas. The distinguishing features in that case, however, are set out in the first sentence of the stated facts in the opinion as follows:

“The Arkansas Motor Freight Lines, Inc., is an Arkansas corporation with its articles of incorporation filed in the Fort Smith District of Sebastian County, Arkansas, where its principal office and place of business are located.” (Emphasis supplied).

The full significance of the above language becomes apparent when we examine the constitutional authority and the statutes thereunder for the forming of business corporations in Arkansas. Article 12, § 6, of the Arkansas Constitution provides for the formation of corporations and is as follows:

“Corporations may be formed under general laws, which laws may, from time to time, be altered or repealed. The General Assembly shall have the power to alter, revoke or annul any charter Of incorporation now existing and revocable at the adoption of this Constitution, or any that may hereafter be created, whenever, in their opinion, it may be injurious to the citizens of this State, in such manner, however, that no injustice shall be done to the corpora-tors.”

Ark. Stat. Ann. §§ 64-501 — 64-502 (Repl. 1966) provide as follows:

“One or more natural persons of the age of twenty-one [21] years or more, may act as incorporator (s) of a corporation by executing and filing in accordance with Section 15 [§ 64-117] of this act, articles of incorporation for such corporation.
The articles of incorporation, which shall be duly signed by all of the incorporators, shall set forth:
vr Tp
J. The address (including street and number, if any) of its initial registered office, and the name of its initial registered agent at such address. * * *”

The formation of domestic business corporations is not only authorized under the Business Corporation Act of 1965 (§§ 64-[ XXX-XX-XXXX ]), but their corporate structure is closely controlled and regulated. Subsequent sections of the Act, §§ 64-907 and 64-908 even provide for the involuntary dissolution and liquidation of the assets and business of domestic corporations. We conclude, therefore, that a domestic corporation does not acquire its residence in a particular county of this state by simply maintaining an office and its principal place of business there; it acquires a county of residence by setting forth in its articles of incorporation “the address (including street and number, if any) of its initial registered office, and the name of its initial registered agent at such address,” § 64-502 J, supra.

The State of Arkansas has no such authority and control over foreign corporations as it does over domestic corporations. It only has authority to permit foreign corporations to do business in Arkansas and to regulate the manner in which their business is conducted. In other words, foreign corporations may only become guests of this state under Art. 12, § 11, of the constitution, which provides as follows:

“Foreign corporations may be authorized to do business in this State under such limitations and restrictions as may be prescribed by law. Provided, that no such corporation shall do any business in this State except while it maintains therein one or more known places of business and an authorized agent or agents in the same upon whom process may be served; and, as to contracts made or business done in this State, they shall be subject to the same regulations, limitations and liabilities as like corporations of this State, and shall exercise no other or greater powers, privileges or franchises than may be exercised by like corporations of this State, nor shall they have power to condemn or appropriate private property.”

Foreign corporations are permitted to do business in this state by complying with the provisions of Ark. State. Ann. § 64-1201 (Repl. 1966) which is as follows:

“Every company or corporation incorporated under the laws of any other State, territory, or country, including foreign railroad and foreign fire and life insurance companies, now or hereafter doing business in this State, shall file in the office of the Secretary of State of this State a copy of its charter or articles of incorporation or association, or a copy of its certificate of incorporation, duly authenticated and certified by the proper authority, together with a statement of its assets and liabilities and the' amount of its capital employed in this State, and shall also designate its general office or place of business in this State, and shall name an agent upon whom process may be served. Provided, before authority is granted to any foreign corporation to do business in this State, it must file with the Secretary of State a resolution adopted by its Board of Directors, consenting that service of process upon any agent of such company in this State, or upon the Secretary of State of this State, in any action brought or pending in this State, shall be a valid service upon said Company; and if process is served upon the Secretary of State it shall be his duty to at once send it by mail, addressed to the Company at its principal office.”

So the question before us boils down to whether there is any difference in the “residence” of a foreign corporation as distinguished from a domestic corporation within the meaning of § 27-611, and we are of the opinion that there is. Missouri Pacific, in the case at bar, argues that a foreign corporation has its residence, under § 27-611, in the county in which its principal office and place of business in Arkansas is located, “just as a domestic corporation.” We have never held that a domestic corporation has its residence in the county where its principal office and place of business is located. As a matter of fact we have held to the contrary.

In Woodruff Electric Coop. Corp. v. Weis Butane Gas Co., 221 Ark. 686, 255 S. W. 2d 420, the litigation between two domestic corporations grew out of a collision in Lee County between a truck belonging to Wood-ruff Electric and one belonging to Weis Butane Co. Both corporations sued the other in what they considered the county of their residence, but Woodruff Electric first obtained service on the suit it had filed in Woodruff County. Woodruff Electric was originally organized to operate only in Woodruff County and in its articles of incorporation, Augusta, in Woodruff County, was designated its principal office. An office was in fact established at Augusta and was still being maintained there with two or three employees when the suit was filed. Some years after its incorporation Woodruff Electric was authorized to do business in several other counties of the state and it built and maintained a rather large office in Forrest City in St. Francis County where it was also authorized to do business and where it had approximately 30 employees, at the time it filed its suit in Woodruff County. Weis Butane contended that the Forrest City office was Woodruff Electric’s main office and place of business and, therefore, was its residence for the purpose of the venue statute. So, Weis Butane, the defendant in the Woodruff County suit, filed a motion to dismiss the Woodruff County suit on the ground that Woodruff Electric’s principal place of business was not in Woodruff County. The motion was granted by the trial court and on appeal to this court, in reversing the judgment of the trial court the question was stated and answered in the opinion as follows:

“Where a corporation has designated a principal office or place of business in its articles of incorporation and has in fact established and still maintains an office at such designated place, can it change its situs (for the purpose of venue under § 27-611, Ark. Stats.) to another county by establishing and maintaining in the latter county another office and place of business without amending, for that purpose, its articles of incorporation? In our opinion it cannot do so.” (Emphasis supplied).

In rejecting Weis Butane’s contention, we pointed out that under our holding in Home Fire Ins. Co. v. Benton, 106 Ark. 552, 153 S. W. 830, in order for Wood-ruff Electric to change its residence from Augusta in Woodruff County to Forrest City in St. Francis County, or to any other county wherein it was authorized to do business, it would be necessary for it to amend its charter or articles of incorporation to that effect; and that since Woodruff Electric had designated Augusta, Woodruff County, as its principal place of business, it continued to remain so until its articles of incorporation were amended to designate otherwise.

As already pointed out, a foreign corporation may be admitted to this state for the purpose of doing business, but it does not become a resident by such admission. In the early case of Pekin Cooperage Co. v. Duty, 140 Ark. 135, 215 S. W. 715, this court stated:

“Every State, however, has complete control over the remedies which it provides its suitors. Foreign corporations have their legal existence and are located within the boundaries of the State under whose laws they are organized. Under our statutes a foreign corporation can not do business here without subjecting itself to the jurisdiction of our courts and our statute has provided a method of procedure in such cases. Our statute has not, however, given a local or county residence to a foreign corporation. This court has expressly held that the statute allowing foreign corporations to do business in this State and permitting them after complying with the statute to sue and to be sued in the courts of this State does not confer a local or county residence upon them.” (Emphasis supplied).

Missouri Pacific argues, however, that the decision in the Pekin Cooperage case was followed in Power Mfg. Co. v. Saunders, 169 Ark. 748, 276 S. W. 599, and that our decisions in both cases were overruled by the United States Supreme Court in Power Co. v. Saunders, 274 U. S. 490. The Pekin Cooperage case as well as the Power Co. case involved foreign corporations as defendants upon whom service was had under a statute, then in effect, as follows:

“Service of summons and other process upon the agent designated under the provisions of § 1826 at any place in this State shall be sufficient service to give jurisdiction over such corporation to any of the courts of this State, whether the service was had upon said agent within the county in which suit was brought and pending.”

In the Pekin Cooperage case the foreign corporate defendant had its principal place of business in Pike County, Arkansas. The plaintiff, Duty, was injured at the defendant’s mill in Pike County. He filed suit in Independence County and service was had upon the agent of the company at its place of business in Pike County. The defendant company filed a motion to quash service and dismiss the complaint on the ground that the statute above referred to was in violation of Art. 12, § 11, of the constitution of the State of Arkansas, and also contended that the Act was in violation of the 14th Amendment of the constitution of the United States. The trial court held the Act constitutional and the service good. We affirmed the trial court.

In the Power Co. case the defendant was an Ohio corporation authorized to do business in Arkansas. It operated a warehouse from which it shipped merchandise at Stuttgart in Arkansas County, Arkansas. The plaintiff was also a resident and citizen of Ohio but while working at the warehouse at Stuttgart he was injured and filed suit in Saline County, Arkansas, under the provision of the above statute. The defendant moved to quash the service of summons and the complaint for want of jurisdiction for the reason that at the time of the accident the plaintiff was a resident and citizen of Arkansas County where the defendant conducted its business in this state. The defendant also contended that the above section of the digest which permitted the suit to be brought in any county in the state was in violation of the state and federal constitutions, and that the 14th Amendment of the federal constitution prohibited the state from depriving any person within the state of his property without due process of law, or denying to any person within its jurisdiction the equal protection of the law.

The United States Supreme Court on certiorari, after setting out the facts in the Power Co. case, stated the question before it (and the only one it decided) as follows:

“The Arkansas statutes require actions of this character, if against a domestic corporation, to be brought in a county where it has a place of business, or in which its chief officer resides, and, if against a natural person, in a county where he resides or may be found; but they broadly permit such actions, if against a foreign corporation, to be brought in any county in the State.”

The opinion of the Supreme Court in the Power Co. case concluded as follows:

“We accordingly reach the conclusion that the defendant’s objection before stated to the validity of the venue provisions was well taken and should have been sustained under the equal protection clause of the Fourteenth Amendment.”

We conclude, therefore, that in holding the venue statute in question unconstitutional in the Power Co. case, the Supreme Court of the United States did not touch the question of when a corporation is or is not a resident of a state. In the very recent case of S. W. Bell Tel. Co. & Wheeler v. Roberts, 246 Ark. 864, 440 S.W. 2d 208, we again stated: - “A foreign corporation is not recognized, however, as having a local or county residence.” Citing Pekin Cooperate Co. v. Duty, supra.

Missouri Pacific argues that if it is unable to maintain its suit in Pulaski County where it has its principal office and place of business in this state, it is being unlawfully discriminated against in favor of domestic corporations. We do not agree with this contention. If foreign corporations were accorded residence in Arkansas where their principal office and place of business is located in this state for the purpose of venue under § 27-611, such accord would come nearer constituting a discrimination against domestic corporations than its denial would against foreign corporations. A foreign corporation may claim diversity in federal cases over which the state had no control and a domestic corporation has no such right. A corporation, the same as an individual person, cannot have a residence within the state for the purpose of bringing suit at the place of residence and at the same time be a resident of another state for the purpose of diversity when being sued, or when a claim of diverse citizenship appears advantageous.

The judgment is affirmed.


text:
    Mary Louise DICKERSON v. STATE of Arkansas
    5620
    471 S.W. 2d 755
    Opinion delivered October 25, 1971

      Percy A. Wright, for appellant.

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Mary Louise Dickerson, formerly Mary Louise Greer, was charged by felony information filed in the Mississippi County Circuit Court with the crimes of forging and uttering a check in the amount of $54.54 to a Kroger store in Blytheville, Arkansas. She was found guilty of forgery at a jury trial and was sentenced to three years in the penitentiary. She has appealed to this court and the appeal is submitted on a single brief by the state’s attorney general pursuant to Rule 11(g) of the Rules of this court.

The facts as gathered from the evidence offered by the state show that a Kroger store in Blytheville received a check dated January 1, 1969, in payment for groceries purchased at the store in the amount of $34.34. The check was drawn on the Merchants & Planters Bank of Manila and bore the signature “Rose Ann Swaney” as the maker. The address and telephone number of the maker were written on the check as “Manlia — 561 - 3491.” The check was presented at the bank for payment in the regular course of business and was dishonored by the bank because Rose Ann Swaney had no account and had never had an account with the bank. A warrant of arrest was then sworn out for Rose Ann Swaney and was placed in the hands of the Blytheville Police Department for service.

Sergeant Mike Richardson, detective with the Blythe-ville Police Department, testified that he was acquainted with the appellant, Mary Louise Dickerson, and that he also knew her as Mary Louise Greer before she was married to Dickerson. He testified that upon receipt of the check he attempted, without success, to locate “Rose Ann Swaney” and proceeding on the theory that the check to Kroger might be a forgery, he attempted to check out the Manila telephone number indicated on the check. He testified that in following this procedure he examined his police record files pertaining to other recent check complaints and found a check dated December 28, 1968, drawn on the Merchants & Planters Bank of Manila and made payable to Safeway. He testified that this check was signed “Louise Greer” with address and telephone number written in as “Manlia— 561-3481.” He testified that in checking out the telephone number on the check signed by Louise Greer he found that it was the correct telephone number of Louise Greer’s mother. He testified that he interviewed Louise Greer in his office on April 5, 1969; that she did not deny that she signed the check to Safeway, but that she denied any knowledge of the Kroger check. He testified that in compliance with his request the appellant, then Louise Greer, produced several samples of her handwriting in which she wrote "Rose Ann Swaney.”

Sergeant Richardson testified that he again interrogated the appellant on December 27, 1969, and that she then told him she did not remember making or signing the check to Kroger but that she could have done so.

"She stated that during this time, reference January 1, 1969, she was intoxicated and that she was, in her words, ‘running around,’ and that she could have wrote the check.”

He testified that the appellant stated to him that the telephone number "561-3491” as written on the check to Kroger, was identical to her mother’s then telephone number with the exception of the digit "9” which should have been "8.” Sergeant Richardson testified that the address of “Rose Ann Swaney” as written on the check to Kroger, was spelled the same as the address of "Louise Greer” written on the check to Safeway, and that in both instances the addresses were written "Manlia.”

Howard Chandler, Questioned Document Examiner with the Arkansas State Police, testified that in his opinion the same person who signed "Rose Ann Swaney” on the Kroger check also signed "Rose Ann Swaney” on the exhibits taken as samples of the appellant’s handwriting.

We now come to evidence submitted on behalf of the state which calls for a reversal of the judgment in this case. In the presentation of the state’s case in chief, Donna DiCicco, a deputy circuit clerk of the Chickasawba District of Mississippi County, was called as a witness by the state and was questioned concerning the judgment record in criminal record docket No. 9143. The record pertaining to this evidence appears as follows:

"Q. Donna, I believe it has been established in the course of this trial that Mary Louise Greer and Mary Louise Dickerson are one and the same person. Who is the defendant in the case Number 9143 there?
A. I believe it is Mary Louise Greer.
Q. All right. And the offense with which the defendant was charged in that case?
A. It was forgery and uttering.
Q. And what was the judgment or verdict?
A. (Examining document). Entered a plea of guilty.
Q. All right. And what was the judgment?
A. ‘Sentenced to a term of five years in the State Penitentiary on the charge of Forgery, and a term of five years in the State Penitentiary on the charge of uttering. Said sentences to run concurrently and three years of each sentence is hereby suspended.’
Q. And what was the date of that judgment on Mary Louise Greer on the offense of forgery and uttering?
A. May the 20th, 1964.
MR. PEARSON: If the Court please, offer these into evidence.
THE COURT: They may be received without objection.
MR. WRIGHT: If the Court please, I wish to object to the introduction of this evidence. It tends to do nothing more than to place — then to challenge the testimony of the witness, and the witness has not been put on the stand as yet. It doesn’t prove or disprove any of the issues in the case that we are trying.
MR. Pearson: If the Court please, this evidence is being offered not for the purpose, of course, of going to her guilt or innocence of the offense for which she is now charged. It is offered for the purpose of showing the criminal intent and guilty knowledge of the defendant to aid in the determination of the intent at the time of the passing of the check, forgery of the check for which she is charged; motive, design, habits and practices.
THE COURT: That part of the witness’ testimony going to the judgment of the Court and the sentence of the Court, the objection to that part will be sustained and the jury is instruct-to disregard it. That part where she admitted her guilt of the check upon which she was charged, the objection is overruled. That part may be admitted.
MR. WRIGHT: And the defendant maintains that it is merely for the purpose of influencing this . jury in this particular case, and on that grounds, the ruling of the Court is excepted to.
THE COURT: The tender of the exhibits, being the docket sheet in Case Number 9143, and the Judgment in that case, being tendered for exhibits in this case, the objection to those will be sustained.
MR. PEARSON: Allow the State to withdraw the offer then of the judgment, your Honor, but the testimony of. the witness concerning same, of course, will be admitted, I take it.
# # #
THE COURT: Yes, sir.” (Emphasis supplied).

The appellant then testified in her own defense and while steadfastly denying that she wrote the check to Kroger or knew anything at all about it, she admitted on direct examination that she pleaded guilty to forgery and uttering in 1964 and then on cross-examination she admitted numerous overdrafts and other forgeries.

There are two reasons why the evidence of the 1964 convictions was inadmissible in this case. It was too remote in time to establish a mode of conduct ("habits and practices”) and it had no relevancy to the crime charged under the other purposes for which it was offered.

In Wilson v. State, 184 Ark. 119, 41 S. W. 2d 764, a list of similar checks to the one for which the defendant was charged was admitted in evidence at the trial. One of the checks was dated 1927, one 1928, one 1929, and the rest in 1930 (apparently the year of the offense charged). This court in approving the admission of this evidence stated:

“As a general rule, it must appear that the evidence of other offenses relate to offenses that occurred shortly before or after the commission of the. offense for which the accused is being tried...
It would be difficult to lay down any rule fixing the time of the commission of the collateral offenses before or after the commission of the crime for which the party is being tried. All the checks that were introduced in this case were competent, because they tended to show a system of operating from the date of the first check continuously to the date of the check for the forgery for which he was being tried.
# # *
Moreover, this class of evidence must be limited within such a period that it may naturally be seen to throw light as to the intent with which the act under investigation was committed; and the question of time during which other acts may be proved seems to be largely within the trial court’s discretion.”

The defendant in the Wilson casé contended that he obtained the check he was charged with forging from the true maker in payment for dental work. But in the case at bar, the appellant had steadfastly denied to the officers any knowledge at all of the check to Kroger, except she did admit to Sergeant Richardson that she possibly could have written the check since she was drinking and “running around’’ about the time the check was dated. The appellant had not testified, or taken the witness stand in her own defense, at the time her pleas of guilty to forgery and uttering, more than five years previously, were placed in evidence by the state.

We cannot overlook the fact that at the time the prior conviction was offered in evidence, there had been no proof other than circumstantial, that the appellant had even written the check to Kroger, or knew anything about it at all. Consequently, her prior conviction, even if at a much later date, would have had no probative value in showing criminal intent, guilty knowledge, motive or design.

Now if the appellant had admitted writing the check but with no intent to defraud; or if her intent, guilty knowledge, motive or design had become issues in the case at all at the time the evidence of her previous convictions on pleas of guilty was offered in evidence, we might have a different question before us, but no such issues are presented under the facts in this case.

In Alford v. State, 223 Ark. 330, 266 S. W. 2d 804, many situations are discussed in detail wherein evidence of previous criminal acts may be accepted as competent evidence in the trial of criminal cases. So-called exceptions to the general exclusionary rule are discussed in Moore v. State, 227 Ark. 544, 299 S. W. 2d 838, and in Umbaugh v. State, 250 Ark. 50, 463 S. W. 2d 634, so we shall not reiterate them again in detail here. Suffice it to say that we consider the evidence of the prior convictions, in the case at bar, to fall within the exclusionary rule commented upon in Alford, supra, where we said:

“No one doubts the fundamental rule of exclusion, which forbids the prosecution from proving the commission of one crime by proof of the commission of another. The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.”

The state’s attorney general argues that by testifying in her own defense the appellant waived any error in the admission of the evidence of prior convictions. We do not agree. The inadmissible evidence of the prior convictions may have been the only reason the appellant felt compelled to take the witness stand in her own defense. Once on the witness stand, however, she was subject to cross-examination the same as any other witness. The burden was on the state to prove by competent evidence that the appellant was guilty of forging and uttering the check to the Kroger store, and the appellant was not required to testify at all in her own defense. She had a right to rely on the statutory presumption of her innocence until the state discharged its burden of proving her guilty beyond a reasonable doubt by competent evidence. She also had a right to remain silent in the face of the damaging circumstantial evidence against her, in the hope that the jury would not be convinced of her guilt beyond a reasonable doubt. We conclude, therefore, that the appellant did not waive her objection to the evidence of her prior convictions on pleas of guilty by admitting the truth of the court records pertaining thereto, when she elected to testify in her own defense from the witness stand.

The judgment of the trial court is reversed and this cause is remanded for a new trial.

Reversed and remanded.

Fogleman, J., not participating.


author: Conley Byrd, Justice.

text:
    OWOSSO FURNITURE COMPANY, Employer v. Dean TOWNSEND, Employee
    5-5734
    471 S.W. 2d 752
    Opinion delivered October 25, 1971

      Fred E. Briner and Wright, Lindsey & Jennings, for appellant.

      Hall, Tucker ir Lovell, for appellee. ■
   Conley Byrd, Justice.

The sole issue here is whether appellee Dean Townsend suffered an accidental injury arising out of and in the course of his employment on July 8, 1968. The Workmen’s Compensation Commission found that -he did not. The circuit court on appeal found that such injury did occur, aggravating a pre-existing condition. The employer Owosso Furniture Company appeals and for reversal alleges that the Commission’s finding is supported by substantial evidence.

The oft stated rule applicable to appeáls both in this court and the circuit court is that the findings of the Commission, like those of a jury, will be upheld if there is any-substantial evidence to support its action.

The parties stipulated that claimant received a compensable injury January 2, 1965, for which he received compensation with the last payment being April 27, 1965. He received a second compensable injury on November 26, 1965, for which the last payment was received on March 24, 1966. The present claim was filed with the Commission on April 29, 1969, for an injury allegedly occurring July 8, 1968.

Claimant admitted that he was off work some between his November 1965 injury and July 8, 1968. He testified that on the latter date he caught his heel on some masonite and almost fell to the floor. At that time there was a small pain in his lower back but that he finished the day. The next day he called his foreman and told him of the accident. His foreman told him to report it to the office when he came back to work. Upon his return after four weeks he talked to Louise Houpt in the office. On cross-examination he stated:

“Actually I didn’t even think that I was hurt until I got home that night and I sat down and started resting in the living room there, and it got to hurting pretty bad and I got up and tried to walk around, and it was already hurting pretty bad on my leg, it was making my left leg draw then, and I guess it was, Oh, 9, or 10 o’clock, it was sometime after dark that night. . . it was hurting so bad that it just made me throw up, and I wasn’t sick at all, didn’t feel sick, and it has done that often since. And that’s the first time it ever done that. Just some pain would make me throw up.”

On 11-1S-68 claimant sent to the employer’s insurance carrier the following letter:

“To whom it may concern:
“On August 26th, 1968 I had a claim filed at the Owosso Furniture Company, Benton, Arkansas, concerning a back injury I received while on the job. I have not heard one word about this claim. The time lost up to this date, was 267.6 days. I would like to hear something about this claim very soon.”

As a result of the foregoing letter, claimant went to the insurance carrier’s office and talked to a Mr. Derrick, who used a recording machine. He could not remember if he told Mr. Derrick about the July 8, 1968, accident. After he returned home and talked to his wife, he wrote the following letter:

“Dear Mr. Derrick,
“After our interview yesterday, (Dec. 10, 1968), on my way home, I got to thinking about all those different dates you show on your records. After I got home I talked with my wife about it. I had completely forgotten about this, but sometime in the early part of 1964 I did receive a pulled muscle in my back. I did report it to my foreman and to the office at the Owosso. This must be the date that is mentioned on the record. It was so slight that I had forgotten about it. When they reported my back injury in 1965 they must have reported it as an old injury. The injury that I received 1-1-65 is the one that I tore the muscle loose in my back and it is the one that I am suffering from now. About the Nov. date, I had a lot of trouble about that time. I must have reported it although I don’t remember it. This must be the time I received Workmen’s Compensation.
“I hope that this letter will help you to clear things up. I also hope you understand that when something happens, after a few years a person can forget the details.
Yours Truly,
Dean Townsend Rt. 3, Box 857 Benton, Ark. 72015
“P. S.
“Except for this additional information the interview on your recorder is correct.”

Claimant employed his present counsel in January 1969. On January 7, 1969, Dr. John Christian examined claimant and forwarded a report to claimant’s counsel. In this report Dr. Christian concluded: “. . . From his history of continuous recurrent trouble of the same nature since his injury at work on January 1, 1965, and with no intervening history of reinjury, I must conclude that the injury in 1965 is the precipitating factor. . . .” On April BO, 1969, the day after the filing of the claim here involved, Dr. Christian wrote claimant’s counsel as follows:

“Dear Mr. Hall:
“Mr. Townsend called me long distance today requesting that I write you concerning additional history that he wished to give me.
“He states that he didn’t understand when he was asked about the possibility of reinjury of his back at work and thought that the doctor was asking about injury to some other place of his body.
“In any event, he states that prior to the loss of four weeks in July of 1968, which he has described in the history obtained on January 7, 1969, in my office, that he did sustain an injury to his back, while at work at the Owosso Manufacturing Company. He states that he was still having some back pain at that time, but was only losing an occasional day or two from work, when on July 8, 1968, he was taking a dresser out of a clamp and while doing this twisted his back and experienced this stinging sensation in the back. He worked the rest of the day. He states that he did report this to his foreman and that the next morning because of pain, he was unable to return to work and he remained off work four weeks. It was during this period that he received medication from his brother-in-law, Dr. War-ford, but states that he didn’t see Dr. Hogue at that time. He says that since he went back to work, in about August, his back pain was more severe and more frequent and that he would miss two or three days of work a week until in January of 1969, when he had to quit because of persistent pain.
“This addendum to his history is presented to you as he presented it to me.
“Actually the pain pattern and physical findings that he describes at the present time could relate to a reinjury in July of 1968, as well as to the initial injury in January of 1965,- although it would seem from his history that his back and leg difficulties have been greater since July of 1968.”

Louise Houpt stated that when claimant talked to her in the summer of 1968, he attributed his lost time to the January 1965 accident, and that 80% of his time lost since January 1965 was due to that injury. As a result she computed his lost time at 267.6 days and so notified the insurance carrier on August 26, 1968.

Mrs. Houpt’s testimony was corroborated by Carolyn Singleterry.

On January 2S, 1969, claimant’s counsel filed with the commission the following claim:

“The above named person was injured January 1, 1965, while working for Owosso Manufacturing Co. It is my understanding that he was off from work some six weeks for which he received compensation and medical treatment. Apparently, there was never any final determination of this case nor any payment for a permanent disability. He has had recurrent episodes with his back and Dr. John Christian has recently expressed the opinion that he has a recurrent lumbar disc herniation and a recurrent strain on the ligamentous structures of the lumbosacral joint, and he concludes that the injury in 1965 was the precipitating factor.
“It appears to me that this is a case where a claim was filed and some compensation was paid but for some reason or another there was never any final determination of the exact extent of this man’s injuries and what he was entitled to. Please let me know what your files reveal.”

On April 22, 1969, claimant’s counsel notified the Workmen’s Compensation Commission that claimant would contend “that he reinjured his back from time to time over the years since his original injury, but reinjured it to the extent of causing disability on or after July 30, 1968.”

Phillip Carter,' a co-worker, testified on direct that in July ’68 claimant got a funny expression on his face after he turned around and set a case down and said, “I think I’ve hurt my back.” On cross-examination he testified that he knew claimant was off quite a bit but he thought the reason was claimant’s problem with diabetes.

Bill Ramsey, foreman, testified that claimant telephoned him in July 1968 and said he thought he hurt his back. He instructed claimant to report the matter to Louise Houpt when he came back to work. On cross-examination Mr. Ramsey admitted that after this telephone call claimant reported back to work and that claimant’s work attendance record both before and after the phone call was about the same.

Upon the whole record, we cannot say that there was no substantial evidence to support the Commission’s finding that claimant did not sustain an accidental injury on July 8, 1968, arising out of and in the course of his employment. It follows that the- order of the circuit court is reversed.

Reversed.


text:
    Rudolph CUNNINGHAM v. STATE of Arkansas
    5650
    471 S.W. 2d 777
    Opinion delivered October 25, 1971

      Dana Davis, for appellant.

      Ray Thornton, Attorney General, for appellee.
   Conley Byrd, Justice.

The only point raised in this appeaJ from the trial court’s denial of appellant Rudolph Cunningham’s post conviction relief is the assertion that he was denied a' fair trial because the deputy prosecuting attorney threatened one of the State’s witnesses with perjury if she did not tell the truth. The witness, a relative of petitioner, testified that though the threat was made, she only told the truth and nothing but the truth.

We find no merit in the contention.

Affirmed.

Fogleman, J., not participating.


author: Frank Holt, Justice.

text:
    Karl R. LEFFLER et ux v. Joe L. BANKS et ux
    5-5634
    472 S.W. 2d 110
    Opinion delivered October 25, 1971
    [Rehearing denied November 22, 1971.]

      Charles W. Atkinson and James R. Hale, for appellants.

      David J. Burleson, for appellees.
   Frank Holt, Justice.

Appellants brought this action against appellees to recover damages for breach of implied warranty in the sale of a house. The court sustained appellees’ demurrer and dismissed appellants’ complaint when they declined to plead further. On appeal appellants contend for reversal that appellees’ demurrer is a “speaking demurrer.” Further, appellants assert their complaint stated a cause of action. Disregarding the “speaking” portion of appellees’ demurrer, we think the court was correct.

In their complaint the appellants alleged that the appellees were the “owners and builders” of a dwelling house which appellants bought on August 20, 1969; that appellees breached an implied warranty by failing to use reasonably suitable building materials and to employ satisfactory workmanship and building practices in the construction of the house, all of which defects were manifested about one year after the purchase date of August 1969.

Both parties cite to us Wawak v. Stewart, 247 Ark. 1093, 449 S. W. 2d 922 (1970). There we adopted the modem rule by which an implied warranty may be recognized in the first sale of a new house by a seller who was also the builder. In recognizing this rule as being “a departure from our earlier cases,” and “to avoid injustice,” we said that this “new rule is made applicable only to the case at hand and to causes of action arising after this decision becomes final.” Thus, we clearly intended that the applicability of. this rule would be prospective only as to sales occurring after our decision became final which was on March 9, 1970. Since the transaction in the case at bar predated Wawak, we hold that the court correctly sustained the demurrer and dismissed the complaint.-

Affirmed.

Fogleman, concurs in the result.


author: Carleton Harris, Chief Justice.

text:
    Patrick L. ANDREWS v. STATE of Arkansas
    5623
    472 S.W. 2d 86
    Opinion delivered November 1, 1971

      A. A. Thomason and Byron Thomason, for appellant.

      Ray Thornton, Attorney General; Gene O’Daniel, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Patrick L. Andrews, appellant herein, was charged by the prosecuting attorney of the Thirteenth Judicial Circuit with the crime of murder in the first degree. On trial, he was convicted of murder in the second degree and the jury fixed his punishment at 21 years in the Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, it is first argued that the court committed reversible error by explaining to the jury foreman the length of time that the defendant would be required to stay in the Arkansas. Department of Correction under possible verdicts in the case, this occurring before the jury had reached a verdict as to the defendant’s degree of guilt. It is also argued that the court committed reversible error by giving lengthy oral instructions to the jury foreman in the absence of the remaining members of the jury to such extent that such instructions could not be accurately related to the absent members of the jury. We first discuss the second contention.

The record reflects that after the jury had retired, the foreman returned to the courtroom and asked a question of the court. The transcript reflects the following:

“THE COURT: Let the record reflect that the foreman of the jury has approached the bench, and in the presence of the attorneys for the State and for the defendant, has requested to know in case this defendant received a number of years in the Department of Correction, when he would be eligible for parole, and also if he was given life? Is that a true and accurate statement of your question?

FOREMAN OF THE JURY: Right.

THE COURT: Commencing first with the number of years I could not have given you this answer unless you had inquired specifically by question as to the term of years, and specifically dealing with that which is less than first degree. Under Act 50 of the State of Arkansas a defendant sentenced for a term of years is eligible to make parole after he has served one third of his sentence less statutory good time that he might earn, and if the sentence is over five years he may be given an opportunity of earning twelve days per month, in that sentence in excess of five years off of the term, and that portion of the sentence under five years he will be given an opportunity to earn as much as eight days per month statutory good time. In addition to that he is given the opportunity of also earning what is known as meritorious good time of five days per month off of the sentence. Now the Act of 1969 provides that he must serve one third of his sentence, less that which he had earned for statutory good time and meritorious good time, conditioned on the recommendations of the prosecuting attorney, of the circuit judge, and the sheriff. Does that answer that question for those sentences for a term of years?

THE FOREMAN: Yes, on that one.

THE COURT: Now as to the sentence of first degree murder for life, Act 50 provided originally that life shall be computed to be fifteen years and you could earn not more than five years good time, or you couldn’t get out less than ten years. In 1969 that was amended, and the law today is that life shall be considered to be life, unless commuted by the governor for a term of years, and when commuted by the governor for a term of years it would be treated in like manner as I have just indicated to you for a sentence for a term of years. Does that answer the question?

THE FOREMAN: Yes, sir.

THE COURT: Any objection on behalf of the defendant or the state?

MR. THOMASON: I would like to lodge my objection to that.

THE COURT: What is the objection, sir?

MR. THOMASON: Well, basically the objection is Your Honor that I don’t* think that at this period of time that the term of years should be explained or enter into the deliberation or consideration.

THE COURT: All right. Let that objection be overruled. I might say this that under the Arkansas law by case decision that is true and a Court could not instruct the juries otherwise, but when a jury comes out and requests this specific information, under the case decision it becomes the duty of the Court to so instruct them. Let the objection of the defendant be overruled to which he saves his exceptions.”

After a thorough study of the statute and our cases, we have come to the conclusion that the judgment should be reversed on this count, but in making this determination, we think it only fair to state that no fault should be attached to the learned Circuit Judge because of the ruling rendered. Our cases are somewhat in conflict, and the distinctions drawn in instances where cases have been affirmed, and other cases reversed, are confusing and difficult to follow.

For instance, in Wacaster v. State, 172 Ark. 983, 291 S. W. 85, the trial court answered a question propounded by the jury foreman in the hall outside the jury room, and away from the presence of defendant and his attorneys, the question relating to the likelihood of a parole in the case under consideration. The answer given by the court was proper but the judgment was reversed by this court because the judge’s action was in conflict with §3192 Crawford & Moses’ Digest, the court holding the provisions to be mandatory. It might be here stated that the statute mentioned is the same as our present statute, Ark. Stat. Ann. § 43-2139 (Repl. 1964). This reversal was entered despite the fact that jurors testified after the rendering of the verdict, that they had already reached a verdict of guilty before the communication was received_

In Aydelotte v. State, 177 Ark. 595, 281 S. W. 369, a different result was reached. From the opinion:

“After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court the information required must be given in the presence of, or after notice to, the counsel of the parties. The provisions of the above statute are mandatory, and where the facts call for an application of its provisions, unless the rulings of the court comply with the statute, they will constitute prejudicial error. The design of the lawmakers in the enactment of this statute was to protect defendants on trial as well as the state, after causes have been finally submitted to the jury for its deliberation and verdict, against any further steps being taken in the case in regard to the evidence or the law unless in open court and after notice to the counsel of the respective parties. While the records show that the communication between the foreman of the jury and the trial judge occurred in the hall of the courthouse, yet the record further shows that appellant’s counsel was standing within thirty feet of the judge and the foreman of the jury at the time, and, immediately after the communication, the judge informed appellant’s counsel of such communication. The counsel stated to the judge it was all right, but he wished to save his formal exceptions. Even this would not have been a compliance with the statute if nothing further had been done, but, after the jury had returned into court with its verdict, and before the court had received the same, the court informed the jury of the communication that the judge had with the foreman, and inquired of them if such was their understanding of what had happened and asked them if the conduct of the judge and the foreman had exerted any influence on them in reaching their verdict, and they answered that it had not. Thus it appears that the communication between the judge and the foreman of the jury was repeated in the presence of the jury and counsel in the court room before the verdict was received and announced. Counsel for the respective parties were thus notified of what had taken place, and what was then taking place, in open court, and they were then given an opportunity to register any objection they had or might have had to the procedure, and they offered none.”

A similar holding was rendered in Smith v. State, 194 Ark. 264, 106 S. W. 2d 1019 (1937), where a single juror requested the sheriff to permit him to leave the remaining eleven and go into the courtroom to see the court. The sheriff granted permission and the juror walked up to the bench where the judge was sitting and talked with him. Following the conversation, the court permitted the juror to return to the jury room. This action was observed by an attorney named Walker. The opinion then recites:

‘Mr. Walker is a partner in the firm of Shouse &, Walker, and while the testimony shows that he did not actively participate in the trial, yet it is admitted that he sat at the counsel table with the other attorneys for appellant, assisted in selecting the jury, and the court and prosecuting attorney evidently regarded him as one of appellant’s attorneys. He saw the juror in the court room, made some remark about it, and asked what it was about. He did not request that the entire jury be brought in, and the conversation repeated in their presence. This request was not made at any time by appellant’s attorneys. The testimony of all the jurors shows that nothing occurred at any time after they were elected as jurors to influence them in any way. There was no communication between them or any one of them and outside persons. There is in fact no claim made by the appellant that anything was done or said at any time to influence their verdict. It is only contended that the sheriff, permitting one juror to separate from the others and go into the court room, violated the statute, and for this reason it is urged that the judgment should be reversed. # * * * It is true that the statute was enacted to protect the defendant on trial and the trial court should be extremely cautious not to permit anything to be done to prejudice the defendant. If the jurors are permitted to separate and one of them communicates with the court and the court gives any instruction, the presumption would be that it would be prejudicial. However, this court has stated that this error may be waived either by the defendant or his attorney.”

This court thus, in effect, held that the failure of the attorney to make the requests just mentioned, operated as a waiver. The court then said:

“This court has uniformly held that it is not necessary for the accused to show that he was actually prejudiced by the ruling of the court in his absence. However, we recently said:

‘But we have, also, uniformly held that a cause will not be reversed where a ruling is made by the trial court in the absence of the defendant that could not by any possibility result in his prejudice.’ The court, also, said, quoting from Mabry v. State, 50 Ark. 492, 8 S. W. 823: ‘We do not depart from the rule that the probability of prejudice by an order made in the absence of the defendant prosecuted for a felony, is all that need be shown to reverse a judgment of conviction, but adhere to its corollary, that we will not reverse for that cause when it is plain the defendant has lost no advantage by his absence.’ Whittaker v. State, 173 Ark. 1172, 294 S. W. 397.

It is plain from the record in this case that appellant was not in any way prejudiced, and the judgment is, therefore, affirmed.”

A contrary conclusion was reached in Bell v. State, 223 Ark. 304, 265 S. W. 2d 709. There, the court went to the door of the jury room, the sheriff not being available, and inquired if the jury wanted to go to lunch or wanted the judge to keep himself available during the noon hour to receive their verdict. As he left one of the jurors asked him a question and the court, on the spur of the moment, answered. The court then returned to the courtroom and informed counsel for the defendant fully as to what had occurred. No motion for a mistrial was made at the time but the matter was included in the motion for a new trial but was overruled. This court then quoted the first part of the statute and pointed out that in Wacaster v. State supra, we had held the provisions of such statute mandatory. The state insisted that any error that might have been committed by the trial court was waived by the defendant and his counsel because the judge immediately returned to the courtroom and informed counsel for the defendant fully as to what had occurred, but no objection was made. It was contended that in the absence of an objection the error could not be considered, but in holding contrary to that contention we said:

“The judge, having committed the error, should have corrected it on his own motion, and the accused was not obligated to make a formal objection because the error had already been committed, and an objection could not have erased the damage that had been done.”

Our most recent case on this subject is Rollie v. State, 236 Ark. 853, 370 S. W. 2d 188 (1963). There, a juror left the jury room after they had retired to consider the verdict and sought advice of the court as to the form of the verdict out of the presence of the remaining jurors, the defendant and her counsel not being present. The Bill of Exceptions contained the following statement by the court:

“In the first place, Mr. Ladd asked the Court about the form of the verdict and said if they voted to find her guilty on two counts and not guilty on two counts would that mean the same as one four year sentence and the Court advised him that it would. Whereupon, said juror returned to the jury room and soon thereafter the jury returned its verdict. The motion is overruled.”

In reversing the judgment, we quoted the statute (identical with 43-2139), and also in effect at the time of Aydelotte. We then said:

“The State contends the record or Bill of Exceptions does not disclose that any objection and exception was made by appellant to this procedure until after the jury was discharged and sentence was pronounced and, therefore, appellant is precluded from raising this point in her motion for a new trial. This is the general rule, however, there are exceptions. This point was specifically and thoroughly considered in the more recent case of Bell v. State supra. In that case we held that the defendant did not waive an alleged error similar to the one in this case and, therefore, could properly raise it for the first time in a motion for a new trial.”

The facts in the present case have some, but not all of, the elements in the cases cited. For instance, in Smith, this court held that the court’s error was waived by the defense because no request was made that the entire jury be brought in, and the conversation repeated in their presence; however, the affirmance seems to be main-. ly based on a finding that the record clearly reflected that there was no prejudice. In Aydelotte, the communication between the court and foreman of the jury was said not to have been prejudicial where the court informed the entire jury of the entire conversation that the judge had with the foreman and inquired if that was their understanding of what had happened; they were also asked whether this communication had exerted any influence on them in reaching their verdict. To this question, the entire jury answered in the negative. In. addition, no objections were registered to this procedure.

In the case before us, the procedure was somewhat different, though the record reflects that the court did mention to the jury when they returned to render a verdict that it had been asked by the foreman when the defendant might be released. It seems clear that the entire conversation with the foreman was not repeated, and it was a lengthy conversation. Counsel did object, but his objection did not go specifically to the fact that the court was only talking to the foreman rather than the entire jury. In Bell and Rollie, we held the court’s communication prejudicial error, though there was no objection and the point was only raised in a motion for a new trial.

It is apparent that the cases are not harmonious and the holdings lack consistency though the more recent cases hold such action by the trial court to constitute error. We think this is the better holding, for where answers are given to only one member of the jury, and he in turn reports that answer to the other jurors, there is a great opportunity for misconstruction. After all, the juror is not a lawyer and, though honestly and conscientiously endeavoring to convey to the other jurors the answer of the court, will necessarily only give his interpretation of what was said; this interpretation may be erroneous. Of course, it is also possible that the single juror might not hear correctly everything the court said. Accordingly, we have reached the conclusion that the statute, Ark. Stat. Ann. § 43-2139. (Repl. 1964), should be strictly followed. In Wacaster we did reverse because of the court’s conversation with the foreman, but in Aydelotte, though holding on the one hand that the provisions were mandatory, we proceeded to say, in effect, that the statute was not mandatory, for we affirmed even though the provisions were violated. We now repeat that following the statute is mandatory in the full meaning of the word, defined by The American Heritage Dictionary of the English Language as "Required as if by mandate; obligatory”. Obligatory is then defined as “legally or morally constraining; binding * * * compulsory”.

Turning now to the other point, viz, that the court committed reversible error by explaining the length of time that the appellant would be required to serve under possible verdicts in the case, we quickly point out that the court’s statement was in accord with our cases. We have said numerous times that a court can properly tell the jury the law, but cannot give an opinion or base a statement on hearsay. See Bell v. State supra, where this court said:

“In some cases the Trial Judge has told the Jury the law as to paroles; and that course of procedure has been approved. See Glover v. State, 211 Ark. 1002, 204 S. W. 2d 373; and Pendleton v. State, 211 Ark. 1054, 204 S. W. 2d 559. But in the case at bar, the answers made by the Trial Judge to the Juror’s questions — admittedly made on the ‘spur of the moment’ — were not declarations of law that a Judge could make from the bench; rather the answers were testimony as to the Judge’s personal observations and hearsay evidence as to the length of time some convicts stay incarcerated.”

In the instant case, the court simply answered the question of the foreman by setting out the law as found in Ark. Stat. Ann. § 43-2807 (Supp. 1969). The summarization was correct, and accordingly no error was committed, and we would not. reverse because of the court’s action. However, inasmuch as this judgment is being reversed anyway, we are of the unanimous view that this is a proper time to stabilize the procedure. In dozens of cases, juries have propounded this question to the court, and the answers have varied. So long as the court confined the reply to the law, we held that no error was committed, but we have reached the conclusion that this procedure should not be followed longer. It clearly appears that the preponderance of jurisdictions do not permit information concerning paroles or parole time to be given to the jury, and even in those jurisdictions where an answer is made similar to the answer in the present litigation, the trial court is further required to tell the jury that the matter is one with which they need not be concerned. This is certainly not a question, the answer to which must be known, before the members of the jury can discharge their duty. Their duty is to determine, within the limits of the statute, the punishment that should be meted out for the crime that has been committed, and such judgment should not be influenced by any event that might occur at some time in the future. The subject matter is entirely alien to a judicial proceeding since it is handled entirely by another department of government, the executive.

What, after all, is the purpose, or reason, for the jury to inquire how long one must serve before he is eligible for parole? The only reason that a jury desires this information is to set the punishment for a sufficient term that will require the defendant to serve the amount of time that the jury really thinks he should serve as punishment. As an example, if the jury feels that the defendant should serve five years, but has been advised that he will be eligible to be paroled within one-third of that time, (one year eight months), the defendant might be given a fifteen year penalty, the jury concluding that he will serve five years, the proper punishment that he should receive. This feeling of the jury is entirely understandable, but in arriving at such a verdict, the jury has gone far afield from its proper purpose and prerogative. Accordingly, we have concluded that this information should not be given the jury, and when asked for such information, the court should reply, in effect, that it is improper for the court to answer the inquiry, and an answer might well constitute reversible error; that the jury need not concern itself with the matter; that the control of the parole system is committed by law to the legislative and executive branches of the government, and, that the jury, if reaching a verdict of guilty, has only the duty of imposing such punishment as may be considered, under the court’s previous instructions, to be appropriate.

We recognize that appeals may presently be pending where the court, in following previous opinions, may have violated the present admonition. We therefore state that the matter last discussed in this opinion, being only a matter of procedure, shall not be retroactive, but shall become effective when this opinion becomes final.

Because of the error committed, as set out in the first point discussed, the judgment is reversed, and the cause is remanded.

It is so ordered.

      “43-2139. After the jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Upon their being brought into court, the information required must be given in the presence of, or after notice to, the counsel of the parties.”

      See 35 ALR 2d 769.


author: George Rose Smith, Justice.

text:
    Leonard JOHNSON v. STATE of Arkansas
    5631
    473 S.W. 2d 155
    Opinion delivered November 1, 1971
    [Rehearing denied December 13, 1971.]

      Louis W. Rosteck, for appellant.

      Ray Thornton Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The trial court, sitting without a jury, found the appellant guilty of burglary and grand larceny and sentenced him to four years imprisonment on each charge. Three points for reversal are argued by counsel.

At about 10:45 p.m. on January 16, 1970, two Jacksonville police officers stopped a car which was traveling too slowly and was swerving back and forth across the center line of the street. Three men were occupying the front seat of the car: Sylvester Blue, who was driving, a man named Hicks, and the appellant, Leonard Johnson. The officers observed three pistols on the floor of the front seat and a number of articles in the back seat, including a portable television set bearing the tag of the Western Auto Store at Cabot.

The men were taken to the Jacksonville police headquarters, where Blue and Johnson were tested for intoxication by means of a device called a toximeter. The instrument showed a reading of zero for each man, which meant that no degree of intoxication was present. The appellant now contends that the results of the tests should not have been admitted in evidence, it being argued (a) that the toximeter must not have been working properly, since one officer testified that Blue appeared to be under the influence of intoxicants when he was arrested, and (b) that Officers McNary and Southern described the tests, but neither of them was listed either as an operator or as a witness on the written report of the tests.

We find no merit in this contention. Blue’s condition may have been due to drugs rather than to the consumption of alcoholic beverages, in which case the toximeter’s reading would have been correct. Officer Southern testified that he was qualified to give the test and that he witnessed the test as it was being given by Sergeant Crook. The omission of Southern’s name from the written report may have given rise to some doubt about the credibility of his testimony, but it certainly did not make the test results inadmissible.

Secondly, the appellant contends that he was under the influence of drugs or intoxicants to such an extent that he could not form the necessary intent to commit burglary or larceny. Chrisman v. State, 54 Ark. 283, 15 S. W. 889, 26 Am. St. Rep. 44 (1891). Upon this issue there was conflicting substantial evidence; so the trial court’s finding settles the question. Johnson testified that earlier that evening he had drunk whiskey and beer and had taken two red pills, presumably drugs. He said that, realizing that he was getting “high,” he lay down in a car belonging to Isaac Neyland, in the expectation that Neyland would take him home, as he often did. Johnson testified that he remembered nothing else until the officers were telling him to get out of the car (which was in fact Neyland’s car). Neyland corroborated Johnson’s testimony by saying that when he found Johnson passed out in the car he asked Sylvester Blue to drive Johnson home.

On the other hand, the arresting officer said that he did not notice any intoxicants. Officer Southern testified that Johnson had not been drinking, that there was no smell of intoxicants about him, and that Johnson acted normally. The toximeter, as we have said, showed no degree of alcoholic intoxication. Upon such conflicting proof we are bound by the trial court’s conclusion that Johnson was not shown to have been unable to form a specific intent to commit larceny or burglary.

Finally, Johnson argues that the evidence is insufficient to support a finding of guilty upon either charge. Again, there is substantial evidence to sustain the court’s judgment. The Western Auto Store at Cabot had been burglarized earlier that same evening. A large quantity of merchandise was taken and was found in the Neyland car when the officers obtained a search warrant and searched the car. The stolen property in the car included a television set, 7 radios, 2 tires, 24 watches, 12 pistols, 20 rifles, and 28 boxes of ammunition. The three men were in the car together when the officers stopped them. Sylvester Blue was using Johnson’s driver’s license, though Johnson professed to be unable to explain how Blue obtained it. Johnson appeared to be in possession of his faculties and to be acting normally. Hence there was ample proof to support the trial court’s conclusion that Johnson had acted in concert with the other men in the commission of the offenses with which he was charged.

Affirmed.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. AMERICAN TELEVISION COMPANY
    5-5642
    472 S.W. 2d 103
    Opinion delivered November 1, 1971

      Thomas B. Keys and Hubert Graves, for appellant.

      Bethell, Callaway, King ir Robertson, for appellee.
   George Rose Smith, Justice.

The appellant highway department acquired by warranty deed a tract of land upon which the appellee, an outdoor advertising company, was maintaining signs under the authority of a lease executed by the highway department’s grantor. The highway department intends to construct curbs, gutters, and storm sewers on the property. The department, having succeeded to the lessor’s interest in the property, brought this suit to compel the appellee to remove the signs, under this provision in the lease:

In the event said property is to be improved by the erection thereon of a permanent building this agreement may be cancelled by refunding to the Lessee all unearned prepaid rental and giving 60 days written notice to the Lessee of the intention to erect said permanent building; Provided, however, that if the proposed improvement has not been commenced at the expiration of the said 60 days notice, the period shall be continued and the Lessee shall be required to vacate said premises in sufficient time so as not to obstruct building operations; in the event the proposed building is not erected as planned, this agreement shall continue in force for the term (or renewal thereof) herein specified.

Upon the undisputed proof, in the form of answers to the appellee’s interrogatories, the chancellor correctly entered a summary judgment for the appellee. The department admits that it does not intend to erect a permanent building on the property. The department contends, however, that the quoted paragraph in the lease also refers to a “proposed improvement,” and that curbs, gutters, and storm sewers are improvements. Such an interpretation, in our opinion, would do violence to the language of the lease. The reference to a proposed improvement appears in a subordinate proviso and clearly refers back to the “permanent building” that is mentioned twice in the opening clause of the paragraph. Hence the words “proposed improvement” cannot fairly be taken to mean anything except a permanent building. The department admittedly does not have any such structure in mind.

Affirmed.


author: Lyle Brown, Justice.

text:
    F. J. YOUNG and Annie YOUNG v. Clifford MOORE and Shirley MOORE
    5-5625
    472 S.W. 2d 100
    Opinion delivered November 1, 1971

      Allen, Young ¿r Bogará, for appellants.

      Kenneth C. Coffelt, for appellees.
   Lyle Brown, Justice.

Plaintiffs-appellants, Young and wife, sued appellees, Moore and wife, for title to and possession of a mobile home, for $450.00 allegedly owed for two bulls, and for $90.00 for hay. The chancellor denied relief and appellants assert two points for reversal. The affirmative defense of payment, so they contend, was not pleaded, and the trial court erred in permitting the introduction of an alleged receipt for payment; and the credible testimony preponderates in favor of appellants.

Three transactions between the parties gave rise to this lawsuit. The Youngs leased their farm to. the Moores for one year. (There is no dispute here about the lease, which has now expired.) Secondly, through the joint participation of the parties a mobile home was purchased to be placed on the leased property. Thirdly, several head of livestock were sold by the Youngs to the Moores. The last two transactions were intertwined and the evidence thereon is in substantial conflict.

Young’s version of the facts. Moore agreed to buy Young’s herd of cattle for $5,900 plus $450 for two bulls. Young told Moore to issue the check for $5,900 to the mobile home company. Moore never paid for the two bulls and he used hay belonging to Young without paying for it. The mobile home was rented to Moore for $50.00 a month with the understanding that Moore could buy it by paying the full purchase price therefor within the twelve months leasing period. The difference between the $5,900 and the full purchase price was $1,469.55, for which Young issued his check to the trailer company. Moore vacated the farm at the expiration of the lease and took the trailer with him.

Moore’s version of the facts. A few days after the lease had been executed and an agreement was reached on the livestock, the two men and their wives went to Jacksonville with the intention of'purchasing the mobile home. At the time Moore picked up the Youngs to go to Jacksonville, Moore gave Young $4,050 in cash in full payment for all the livestock. Young had a receipt already written out and handed it to Moore: “March 29, 1968. Received of Cliff Moore the sum of $4,050 for cows 25 cows 15 calves 2 bulls 1 heifer Pd. in full. Sgd. F. J. Young and Annie.” It was understood the hay went with the livestock. The parties proceeded on to Jacksonville and located the trailer desired. It cost $5,569.55. Moore related to Young that he could spare as much as $5,900 and he made out a check for that amount to the trailer company. Young agreed to loan Moore the difference of $1,469.55, which Moore agreed to pay back at $50.00 a month. (Moore produced twenty cancelled checks, each of which was payable to Young and marked “payment on trailer.”) The trailer company made out the papers on the mobile home, in the presence of the Youngs and the Moores, in the name of Clifford Moore, appellant. (The invoice was placed into evidence.)

When we weigh the testimony of the parties, the exhibits, and the testimony of supporting witnesses, we are unable to say that the chancellor erred in holding that appellants’ cause was not supported by a preponderance of the evidence. When evidence is as conflicting as it appeared in this case the demeanor of the witnesses becomes important. Of course the chancellor had the advantage of seeing and hearing the witnesses, which we do not have.

Appellees did not plead the defense of payment and appellants say it was error to admit evidence to. that effect. At no point in the record do we find that objection was made to the admission of such evidence on the ground that it was an affirmative defense which had not been pleaded. When witness Young was asked to identify the receipt for $4,050 he protested that his wife had not signed the receipt and that the body of the receipt had been altered since he delivered it. The court accepted the receipt for the record and remarked “Mr. Young has made an objection to it.” The court was referring to the appellant Young’s protest about the alteration. Certainly the “objection” of Mr. Young did not amount to objection for failure to plead the affirmative defense of payment. We are convinced the latter objection was raised for the first time on appeal.

Affirmed.