author: George Rose Smith, Justice.

text:
    John B. MASON, Individually and as Executor v. Roy LOVING et al
    5-5645
    473 S.W. 2d 169
    Opinion delivered November 8, 1971
    [Rehearing denied December 20, 1971.]

      Boyett & Morgan and Gordon, Gordon é1 Eddy, for appellant.

      John D. Eldridge; Wright, Lindsey ir Jennings and Philip S. Anderson, for appellees.
   George Rose Smith, Justice.

This action for personal injuries and for wrongful death was brought by the appellant individually and as executor of his wife’s estate. The case arose from a rear-end collision between Mason’s car, occupied by him and his wife, and a tractor-trailer owned by the appellee Southern Rendering Company and being driven by its employee, the appellee Roy Loving. The case was submitted to the jury on interrogatories. In answer to the first interrogatory the jury found that Loving had not been guilty of any negligence that was a proximate cause of the collision. Upon that finding the court entered judgment for the defendants. For reversal the appellants argue a number of points, which really comprise a total of five contentions.

I. By his first and sixth points the appellant insists that Loving was guilty of negligence as a matter of law, so that the case should be remanded for a new trial. This argument is without merit. The collision occurred at about 6:00 a.m. on December 21, 1967, on a straight stretch of Highway 67, southwest of Cabot. The weather was slightly foggy and the highway wet and slick. Loving, driving a tractor-trailer loaded with 62,000 pounds of tallow, had stopped for gasoline at a truck stop. In leaving the service station he drove between two long narrow traffic islands along his side of the highway and turned to his right, to travel northward. He testified that he looked to the south, that nothing was coming. He completed his turn into the highway, straightened his rig out, and had traveled 115 feet or more when his trailer was struck from behind. He had made four gear changes by then and was traveling not more than 10 miles an hour. His rig was brightly lighted, having headlights, sidelights, and 11 lights on the rear end of the trailer.

Mason and his wife had left Robbstown Texas, at about noon on the preceding day and had traveled continuously except for pulling off the highway for an hour or two of sleep. Mason was driving at from 50 to 55 miles an hour, though the speed limit was 40. He testified that as soon as he saw the truck’s tail lights he jammed on his brakes, but he was unable to stop before hitting the other vehicle. An officer found 100 feet of skid marks before the point of impact. Mrs. Mason was killed in the accident, and Mason suffered personal injuries.

Upon the record before us we certainly cannot say either that Loving was negligent as a matter of law or that any negligence on his part necessarily exceeded that of Mason. Mason, who was 70 at the time of the trial, had been traveling for some 18 hours, almost without sleep. He was exceeding the speed limit at a time when weather conditions made driving somewhat hazardous. He was necessarily less than 100 feet from the tractor-trailer when he first saw it and applied his brakes, although he testified that he could see for 200 or 300 yards with his headlights on the high beam, as they probably were. It is plain that if we were at liberty to set aside a verdict as fully supported by substantial evidence as this one is, there would be no end to litigation.

II. Three of the appellant’s points relate to the court’s Instruction No. 12. In that instruction the court took part of the first sentence of AMI 902 and put it within the format of AMI 903, as if it were a statute. Counsel for the defendants objected to the instruction, on the ground that AMI 902 is a rule of the road rather than a statute. The original record, however, discloses no objection whatever to the instruction on the part of counsel for the plaintiff. In a motion for a new trial counsel asserted that a general objection had been made but not recorded by the court reporter. At the hearing upon the motion the trial judge found that the objection had not in fact been made. We are simply not in a position to say that he was wrong upon this issue of fact; so it is unnecessary to discuss the appellant’s several attacks upon Instruction No. 12. Ransom v. Weisharr, 236 Ark. 898, 370 S. W. 2d 598 (1963).

III. It is argued that the trial judge should have granted a new trial, because at the hearing upon the motion for a new trial he stated at one point that the verdict had surprised him. Later on, however, he explained that he always guessted at what the verdict would be, and in this instance he guessed wrong. In concluding the hearing the court stated explicitly: “[T]he Court does not find that [the verdict] is against the preponderence of the evidence.” Hence no error appears. See the two opinions in Bockman v. World Ins. Co., 222 Ark. 877, 263 S. W. 2d 486 (1954), and 223 Ark. 665, 268 S. W. 2d 1 (1954).

IV. It is contended that the court should have sustained the plaintiff’s challenge for cause of a juror who said that Mr. Eldridge, an attorney for the defendants, was the regular attorney for her and her husband. There was no indication that Eldridge was then acting for the couple, and the juror stated that the relationship would have no effect upon her in the trial of the case. We need not examine this contention on its merits, for there is no showing that the plaintiff had exhausted his peremptory challenges. Hammond v. Peden, 224 Ark. 1053, 278 S. W. 2d 96 (1955).

V. Finally, at the hearing on the motion for a new trial one of the attorneys for the plaintiff made an affidavit stating that the foreman of the jury had told the attorney after the trial that the jurors had misunderstood the court’s instruction with respect to the superior rights of the forward vehicle. We may dispose of this contention by repeating what we said in Bailey v. Stewart, 236 Ark. 80, 364 S. W. 2d 662 (1963): “Such an attempt to explain the verdict is incompetent, for reasons of public policy, and should not have been made.”

Affirmed.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Billy REEDER v. STATE of Arkansas
    5636
    472 S.W. 2d 721
    Opinion delivered November 8, 1971

      Garner, Parker ir Garner, for appellant.

      Ray Thornton, Attorney General; for appellee.
   Lyle Brown, Justice.

Billy Reeder appeals from the trial court’s action in revoking a suspended sentence. His sole contention is that the trial court had lost jurisdiction at the time it revoked the suspension.

Reeder was found guilty of operating a gambling house. The jury assessed a one year sentence with recommendation that the sentence be suspended. The trial court imposed the one year sentence with the provision that execution thereof be postponed for a period of three years conditioned on good behaviour. Some eighteen months after the imposition of the sentence, the trial court revoked the suspended sentence and ordered that appellant serve one year. It is the contention of appellant that the trial court cannot legally suspend for three years a one year sentence assessed by the jury. Since the revocation occurred more than one year after the fixing of the sentence by the jury, appellant argues that the trial court lost jurisdiction.

The very same contention was the sole issue on appeal from the original conviction. Reeder v. State, 248 Ark. 902, 455 S. W. 2d 92 (1970). We there held that the court could suspend a one year sentence for a period of three years. Appellant asks that we reconsider our decision in the first appeal and cites some federal decisions, all of which preceded our first opinion. Those decisions are not persuasive because they pertain to interpretations of federal probationary statutes, nothing more.

Affirmed.


text:
    E. R. HENRY, Jr. et al v. C. C. STUART et al
    5-5759
    473 S.W. 2d 164
    Opinion delivered November 8, 1971

      Dickey, Dickey & Drake, for appellants.

      Gill ir Clayton, for appellees.
   Lyle Brown, Justice.

Appellants are qualified electors and taxpayers of the Desha County School District. Appellees are members of the Desha County Board of Election Commissioners. Appellants brought this action in mandamus to require the appellees to recount the votes cast in an election for increasing the millage to erect a school building. On demurrer the circuit court dismissed the petition, holding that it had no authority to issue a writ of mandamus to compel the board to perform an act which was discretionary. On appeal,, appellants contend that the writ should have been granted.

The statute provides that one who is dissatisfied with the returns from any precinct may have a recount at any time before the canvass of the votes is completed. Any dissatisfied party or parties may file a petition “showing reasonable grounds for believing that the return, as made by the judges of election, does not give a correct statement of the vote as actually cast, as the same is shown by the ballot returned with the certificate of the judges. . . .” Ark. Stat. Ann. § 3-508 (Supp. 1969).

Of course we are not bound by the prayer for relief in determining whether appellants stated a cause of action. We look at all the facts stated in the pleading to determine whether mandamus is appropriate. See Culp v. Scurlock, 225 Ark. 749, 284 S. W. 2d 851 (1955). If the facts alleged “entitle the plaintiff to any relief, either legal or equitable, although they may not entitle him to all the relief prayed for, the complaint is not subject to demurrer upon the ground that its allegations are insufficient to state a cause of action.” 41 Am. Jur., Pleading § 110.

It is asserted in appellants’ pleading that they petitioned the board of election commissioners for a recount and that the board “declined to consider the petition.” In other words the fact is alleged that the board refused to act, one way or the other, on the petition for recount. If that fact is established on hearing in the circuit court then that court would have authority to direct the board, acting with sound discretion, to take action and either grant or deny the petition. The court cannot order the board to recount the votes, as requested in appellants’ petition. That is because the board must find, as a prerequisite to a recount, that there are reasonable grounds for believing the returns are incorrect. That is clearly not a ministerial act but an act of discretion. “Our law holds that the writ of mandamus will not be granted to review the exercise of discretion of an officer or official board, but can be invoked only to compel the officer or board to exercise such discretion.” Ellis v. Rockefeller, 245 Ark. 53, 431 S. W. 2d 848 (1968).

Appellants are entitled to a hearing on their allegation that the board of election commissioners has refused to act on their petition.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Barbara BLYTHE individually and Barbara Blythe as mother and next friend of Robert Blythe a minor v. William C. BYRD, Sr. and William C. Byrd, Jr.
    5-5620
    472 S.W. 2d 717
    Opinion delivered November 8, 1971

      Branscum, Schmidt & Mazzanti, for appellant.

      Bailey, Trimble, Holt & Thomas, for appellees.
   John A. Fogleman, Justice.

Appellant Barbara Blythe suffered an adverse judgment in her suit to recover for herself and her eight-year-old son, Robert Blythe, for injuries alleged to have been caused when the child was struck by a pickup truck driven by appellee William C. Byrd, Jr., but owned by William C. Byrd, Sr. As one point for reversal, she asserts that the trial court’s refusal to give AMI 501 defining proximate cause, as requested by her, was reversible error. She submitted her proposal that the second paragraph of the instruction be included. The court refused to do this, but modified the instruction requested by deleting that paragraph, which is applicable when there is evidence from which the jury might find that an injury may have been produced by two or more concurrent causes. We find reversible error on this point.

Appellant alleged that Robert Blythe, then eight years of age, was injured while crossing a street when struck by the pickup truck. She attributed the injury to negligence of the younger Byrd. She also alleged that the negligence of the son, a minor under the age of 16 years, was imputed to the father. Appellees pleaded that Robert Blythe’s own negligence was the sole proximate cause of his injuries and damages. They also alleged that appellant was negligent in allowing her son to cross this street alone without being advised by her as to the proper means and place of crossing.

There was evidence that Robert Blythe ran or walked rapidly from a point in the middle of a block into the path of the oncoming Byrd vehicle, when it was moving at a speed of 30 to 35 miles per hour about three car lengths away in a zone where speed was limited to 30 miles per hour, and when Byrd was approaching a zone where speed was limited to 20 miles per hour when children were present. Evidence conflicted on the question whether the truck struck the child or the child walked into the side of the truck. The mother admitted that she had taken her son across the street at this point and that she did not feel that it was more dangerous to cross the street at this point than at any other. It was also admitted that the elder Byrd had previously permitted his son to drive the truck without an adult in the vehicle.

The court gave, among others: AMI 304, relating to the standard of care to which Robert Blythe was to be held; AMI 601, setting out Ark. Stat. Ann. § 75-628(a) (Repl. 1957) as to duties of a pedestrian in crossing a roadway and the correlative duty of a driver of a vehicle; AMI 605 on the duty of one who should know that a child may be affected by his act; AMI 901 on rules of the road relating to lookout, control and speed; AMI 909 on the duty of drivers and pedestrians to anticipate the presence of each other; and AMI 2109 modified to permit comparison of the negligence of Mrs. Blythe and Byrd, Jr. Thus the court recognized by one instruction or another that there were jury issues as to negligence of Barbara Blythe, the negligence of Robert Blythe and the negligence of William Byrd, Jr. Since the trial judge gave no reason for modifying the proximate cause instruction, and did not permit comparison of negligence of Robert Blythe and William Byrd, Jr., we can only come to the conclusion that he found that, under the evidence, negligence of Barbara Blythe and the younger Byrd both could have been concurring proximate causes of Robert Blythe’s injury. Conceding for the moment that there was no question whether Robert Blythe was guilty of negligence which was a proximate cause of his injuries, the second paragraph of AMI 501 should have been given on the basis of possible concurrent proximate causes, if the court’s evaluation of the other evidence as to possible proximate causes was correct.

There was even stronger evidence tending to establish negligence on the part of the Blythe boy, however, and the court was justified in giving the instructions pertaining to his duty as a pedestrian and the standard of care required of him. We do not agree with appellant’s argument on appeal that young Blythe’s negligence could not be a contributing proximate cause because of his tender years. We cannot say that this eight-year-old boy was of such tender age that he was wholly incapable of negligence, as a matter of law, as are much younger children. See such cases as Sherman v. Mountaire Poultry Co., 243 Ark. 301, 419 S. W. 2d 619; St. Louis S. W. Ry. Co. v. Cochran, 77 Ark. 398, 91 S. W. 747; Miles v. St. Louis, I. M. & S. Ry. Co., 90 Ark. 485, 119 S. W. 837; Wadsworth v. Gathright, 231 Ark. 254, 330 S. W. 2d 94; Sanders v. Baird, 195 Ark. 535, 112 S. W. 2d 966. The court correctly declared the appropriate test in the case of this eight-year-old boy by giving AMI 304. Nashville Lumber Company v. Busbee, 100 Ark. 76, 139 S. W. 301, 38 L. R. A. (n. s.) 754; Williams v. Gilbert, 239 Ark. 935, 395 S. W. 2d 333; St. Louis, I. M. & S. Ry. Co. v. Sparks, 81 Ark. 187, 99 S. W. 73; Gates v. Plummer, 173 Ark. 27, 291 S. W. 816; Garrison v. St. Louis, I. M. & S. Ry. Co., 92 Ark. 437, 123 S. W. 657; St. Louis S. W. Ry. Co. v. Adams, 98 Ark. 222, 135 S. W. 814; Kansas City Southern Ry. Co. v. Teater, 124 Ark. 1, 186 S. W. 294. Since the jury might have found that Robert Blythe was guilty of negligence which was a proximate cause of his injury, the court erred in modifying appellant’s offered instruction.

We find that most of appellant’s remaining points for reversal will not likely arise on a new trial. We will consider only those which appear likely to arise. Appellant objected to the giving of AMI 601, setting out Ark. Stat. Ann. § 75-628 as to the correlative duties of pedestrian and driver when the former is crossing a roadway at a point other than a marked crosswalk or intersection. The general objection is not well taken, because the instruction, being a correct statement of the law, is not inherently erroneous. The weight to be given the evidence of violation of this statute by young Blythe was to be determined in the light of the standards set out in AMI 304. Appellant’s specific objection was that there was no evidence of any such ordinance. The instruction did not relate to any ordinance, and no evidence of an Arkansas statute is required. Howell v. Howell, 213 Ark. 298, 208 S. W. 2d 22; Bevens v. Baxter, 23 Ark. 387.

Appellant did not object to the giving of AMI 602, which she now says was error. Still, we see no reason why it should not have been given.

Appellant made only a general objection to AMI 603, which would not encompass her present argument that the court should have used the word “injury” or the word “accident” rather than “collision.” She argues that the word used by the court tends to suggest that the boy collided with the truck, as distinguished from the truck’s colliding with the boy. We cannot say that the word choice was incorrect in the light of the common meaning of the word in ordinary current usage. See Webster’s New International Dictionary, Third Edition.

AMI 614 on sudden emergency was properly given on the evidence in this case.

Appellant complains that the court modified AMI 2109 to permit the jury to compare the negligence of Mrs. Blythe with that of William Byrd, Jr., in considering her individual cause of action. She made only a general objection at the trial. The instruction is not inherently erroneous, so the trial judge really had no opportunity to pass upon the argument made here— that there was no evidence of negligence on the part of Mrs. Blythe. If there was, the instruction was correct. If not, it was erroneous. We consider the question because on retrial it will likely arise. Appellees contend that Mrs. Blythe knew that the child crossed the street at the place he did. It is admitted that she had taken him across the street at this point and that at some times the traffic is heavy there. As stated above, she testified that it was no more dangerous to cross the street at this point than any other. The comparative danger was certainly a question of fact for jury determination.

In considering whether there was sufficient evidence of Mrs. Blythe’s negligence to present a jury question, we must view the evidence in the light most favorable to appellees, drawing all possible inferences therefrom to support the court’s action. In reviewing the record, appellant’s failure to move for a directed verdict on this point or to raise it in any manner is not without significance. It cannot be doubted that in an action for a parent’s own benefit, he is chargeable with negligence contributing to his child’s injury in an action. St. Louis S. W. Ry. Co. v. Cochran, 77 Ark. 398, 91 S. W. 747. Permitting his child to go upon a railroad track unattended constitutes such negligence. St. Louis S. W. Ry. Co. v. Cochran, supra. Allowing his eight-year-old child to remain unattended at a railroad station where cars were being switched on nearby tracks was also held to be contributory negligence on the part of a father. St. Louis, I. M. & S. Ry. Co. v. Colum, 72 Ark. 1, 77 S. W. 596. We held that there was a jury question as to the parent’s negligence when the father allowed his unattended six-year-old child to go visiting without having especially cautioned her to avoid trains, when he knew that she would have to pass railway tracks when a train was overdue. St. Louis, I. M. & S. Ry. Co. v. Dawson, 68 Ark. 1, 56 S. W. 46. Other circumstances where the evidence has been held sufficient to present a jury, question as to the parent’s negligence include:

A father’s leaving his 18-month-old child, the mother and two other children, three to seven years of age, at his home, which was unenclosed and 100 feet from a railroad track, after which the mother left the children to visit a neighbor. St. Louis, I. M. & S. Ry. Co. v. Freeman, 36 Ark. 41;
A father’s consenting to the employment of his teenage son in violation of a statute. Ashcraft v. Jerome Hardwood Lumber Co., 173 Ark. 135, 292 S. W. 386;
Parent’s permitting a 10-year-old boy to ride a truck when he was seated on a tire and wheel which was up against the cab on the truck bed. Missouri Pacific R. Co. v. Frye, 214 Ark. 92, 214 S. W. 2d 495.

Perhaps our closest parallel to this case is Self v. Kirkpatrick, 194 Ark. 1014, 110 S. W. 2d 13, where we held that the evidence was sufficient to justify submission of the question of the father’s contributory negligence. The child in that case was four years old and the youngest of seven children. He was killed when struck by an automobile as he was crossing Highway 82 near Magnolia. The family lived in a house near the highway. The child was at a nearby filling station with other children when he started crossing. The father had built a fence to keep his children in the yard, but did not put a lock on the gate, and the older children could open it. He frequently sent his older children to a store across the highway, but never allowed his younger ones to go.

In view of these previous holdings, there was sufficient evidence to justify submitting the question of Mrs. Blythe’s negligence to a jury and giving the instruction.

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

Byrd, J., dissents.


author: J. Fred Jones, Justice.

text:
    Presley Allen HILL, Jr. v. STATE of Arkansas
    5647
    472 S.W. 2d 722
    Opinion delivered November 8, 1971

      Odell C. Carter, for appellant.

      Ray Thornton, Attorney General, for appellee.
   J. Fred Jones, Justice.

Presley Allen Hill, Jr. was convicted of first degree murder in the Lincoln County Circuit Court and was sentenced to life imprisonment. On appeal to this court he relies on the following points for reversal:

“The defendant was tried in prison clothes in violation of his constitutional rights.
The defendant was never arraigned.
The defendant was never furnished a copy of the indictment or information although charged with a capital offense.”

The homicide involved in this case occurred in one of the so-called “isolation cells” in the maximum security building at the Arkansas Penitentiary where the appellant, Hill, as well as the decedent, Bittle, were serving time under felony convictions. Three young inmates testified for the state and the nauseating details as related by them would add nothing to this opinion. Suffice it to say the evidence was more than sufficient to sustain the conviction and the sufficiency of the evidence is not questioned on this appeal.

We now discuss the points relied upon by the appellant, Hill, in the order they are designated. Hill argues that tie was tried in prison clothes in violation of his constitutional rights, and he cites Miller v. State, 249 Ark. 3, 457 S. W. 2d 848, as authority for reversal. The accused in the Miller case was apparently serving time in the Arkansas Penitentiary under a conviction for some unrelated crime when he was brought to Pulaski County dressed in prison clothes to be tried the following day on a charge of robbery. Before trial the prisoner’s appointed attorney moved for a continuance to enable the accused to obtain civilian clothes to wear at his trial, and the trial court denied the motion. In that case we followed the rule previously announced in a number of state and federal decisions that “absent a waiver the accused should not be forced to trial in prison garb,” and we reversed the trial court judgment. But in the Miller case as well as the cases cited in that opinion, the alleged crime did not occur inside the confines of the penitentiary while the accused was confined as a prisoner there.

The rationale of the rule is reasonable and sound because an accused is presumed innocent until proven guilty, and when he does not take the witness stand as a witness in his own defense, other unrelated crimes or convictions may not be used in evidence against him merely for the purpose of getting across to the jury the fact that he is a “criminal” and therefore likely to have committed the crime with which he is charged. Dickerson v. State, 251 Ark. 257, 471 S. W. 2d 755, (1971). Certainly an accused should not be forced to wear a badge conveying evidence which is not admissible when conveyed in words.

In the case at bar the accused was on trial for murder committed in a solitary confinement cell at the Arkansas Penitentiary and we are unable to see how he could have been prejudiced by the fact that he was wearing prison clothes at the time of his trial. It would appear that there might have been a greater likelihood of prejudice if Hill had appeared at his trial wearing civilian clothes, thereby leaving the jury to speculate on when, how and why he was released from custody following the murder he was accused of committing so recently in a maximum security isolation cell at the state penitentiary. Furthermore, there is no evidence that Hill objected to going to trial in prison clothes until after his conviction. In Hernandez v. Beto, 443 F. 2d 634, the United States Court of Appeals for the Fifth Circuit, on petition for rehearing, said:

“A defendant may not remain silent and willingly go to trial in prison garb and thereafter claim error.”

As to appellant’s second point, he argues that he was tried in violation of his statutory right to be formally arraigned and to have the indictment read to him and inquiry made as to whether he pleads guilty or not guilty to the indictment. Ark. Stat. Ann. § 43-1201 (Repl. 1964). We are not persuaded by this argument for in Bettis v. State, 164 Ark. 17, 261 S. W. 46, we held that by announcing ready for trial and going to trial just as if there had been a formal arraignment, an accused waives his right to have a formal arraignment and plea entered before the trial commences. See also Davidson v. State, 108 Ark. 191, 158 S. W. 1103, and cases there cited.

The record before us discloses that Hill appeared with his attorney at the trial and requested a severance from his codefendant, and that the severance was granted. Hill was then called before the trial judge and in addressing the jury the judge announced that Hill was charged with the offense of first degree murder by information filed by the prosecuting attorney in which Hill was accused of the murder of Gerald Bittle on January 3, 1971; that the offense was alleged to have occurred in the penitentiary and the record then appears as follows:

“THE COURT: * * * What says the defendant?
MR. CARTER: [Hill’s attorney] Your Honor, we plead not guilty.
THE COURT: Are you ready for trial?
MR. CARTER: Yes sir.”

Under the circumstances of this case we hold that the appellant waived formal arraignment under the statute. See also Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816.

In support of his third point appellant cites McCoy v. State, 46 Ark. 141, for the proposition that when a defendant in a capital case is forced to trial without a copy of the indictment as provided in Ark. Stat. Ann. § 43-1204 (Repl. 1964), he is entitled to a new trial. We find no merit in this contention for we also held in McCoy that by entering a plea of not guilty and going to trial without requesting a copy of the indictment, the privilege is waived. See also Bettis v. State, supra.

We are of the opinion, and so hold, that the appellant, Hill, in the case at bar, waived his right to a copy of the information pursuant to § 43-1204 by entering a plea and going to trial without objections to the information, and without objections to not being furnished with a copy of it. The judgment is affirmed.

Affirmed.


author: Frank Holt, Justice.

text:
    William GROOMS v. STATE of Arkansas
    5597
    472 S.W. 2d 724
    Opinion delivered November 8, 1971

      Harold C. Rains, Jr., for appellant.

      Ray Thornton, Attorney General; Garner L. Taylor, Jr., Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

The appellant was convicted by a jury of the alleged crimes of burglary and grand larceny and his punishment was left to the court. The court imposed a sentence of 10 years imprisonment in the State Penitentiary for burglary and suspended a 15-year sentence for grand larceny. A codefendant who received a 5-year and a 10-year sentence (the latter suspended) does not appeal.

Appellant contends for reversal, through his court-appointed trial counsel, that the court erred in allowing the cross-implicating confession of appellant’s codefendant to be narrated to the jury. In this narration the jury was told that the declarant admitted in detail the alleged offenses and equally cross-implicated the appellant. Neither the declarant nor the appellant testified. We hold that the admission of the cross-implicating confession was prejudicial error. Mosby & Williamson v. State, 246 Ark. 963, 440 S. W. 2d 230 (1969); Byrd, James & Strickland v. State, 251 Ark. 149, 471 S. W. 2d 350 (1971). See, also, Bruton v. United States, 391 U. S. 123 (1968). In those cases it was recognized that, in the circumstances, it was no longer permissible to allow cross-implicating confessions in a joint trial. This procedure impinges upon the basic and fundamental right of a defendant to be confronted from the witness stand by his adverse witness with the accompanying right of cross-examination as is guaranteed by the federal Sixth Amendment. Neither could the prejudicial effect of a violation of this constitutional right be removed by a cautionary instruction to the jury that it should not consider as evidence the admission of a confessor against a codefendant. It was further recognized in those cases that the problems which might arise from cross-implicating admissions could be resolved by deleting offending portions which refer to a codefendant. Otherwise, the court should grant separate trials.

We cannot agree with the State that a waiver of this basic constitutional right existed in the case at bar. A Denno hearing was held in chambers to determine the voluntariness of appellant’s codefendant’s (Kenneth Harness) confession. The court held it was voluntary and in doing so, the following transpired:

MR. RAINES: If the court please, any statement that Harness made will not be admissible against Mr. Groom.
THE COURT: Now, that is correct. The Court understands that any statement made was made by Harness.

In spite of this understanding, the State proceeded to present to the jury the codefendant’s confession which detailed appellant’s participation in the alleged offense.

After narrating the undeleted confession, which was previously held as inadmissible against appellant, the officer-witness then testified as to the recovery of the property. Appellant objected to “all of this.” The witness further testified, apart from the confession, about the market value of the stolen property, at which time appellant’s counsel limited his cross-examination to the witness’s personal knowledge of its value. Thereupon appellant’s counsel asked the court to declare a mistrial on the basis that the cross-implicating confession was prejudicial to appellant and that a cautionary instruction would not remove the prejudicial effect upon the jury. The request for a mistrial was refused over appellant’s objection and the court, at appellant’s request, then gave the jury a cautionary instruction not to consider any portion of this statement which implicated the appellant. The cautionary instruction, as we previously indicated, did not remove the prejudicial effect of the cross-implicating confession.

In the circumstances, this limited cross-examination did not constitute a waiver of appellant’s federal Sixth Amendment rights. This procedure cannot be construed as a deliberate bypass of our orderly court procedure. See Henry v. State of Mississippi, 379 U. S. 443 (1965); Fay v. Noia, 372 U. S. 391 (1963).

We find no merit in appellant’s other contentions for reversal.

Reversed and remanded.


author: Carleton Harris, Chief Justice.

text:
    John Milton PHIPPS v. William M. WILSON
    5-5617
    472 S.W. 2d 929
    Opinion delivered November 15, 1971

      David R. Monroe if James R. Howard, for appellant.

      Martin, Dodds, Kidd, Hendricks if Ryan, for appellee.
   Carleton Harris, Chief Justice.

Donna Wilson Murrel was the beneficiary of an insurance policy on her husband Roger Murrel, who died on April 11, 1967, in Little Rock. Funds available from the policy, the insurer being Kansas City Life Insurance Company, amounted to $187,418.15. Three children were named as successor beneficiaries, but the policy reflects that after Murrel’s death, Mrs. Murrel, the primary beneficiary, caused an endorsement to be placed on the policy providing that upon her death, if it should occur before all proceeds were paid, the remaining proceeds should be paid to William Wilson Murrel and Debra Margaret Murrel, both minors and children of Mr. and Mrs. Murrel. On May 3, 1967, and July 27, 1967, Mrs. Murrel withdrew $10,000 (on each occasion) and on April 15, 1968, withdrew $100,000 from the Kansas City Life Insurance Company, the two minor children remaining successor beneficiaries for the balance of the deposit left with the company. Mrs. Murrel purchased a home on Kavanaugh Boulevard in Little Rock, and on April 10, 1968, accompanied by Verne Barnes, State Agent for Kansas City Life Insurance Company, went to Stephens Investment Company to discuss the purchase of tax-free securities or bonds. She talked with Mr. Vernon Giss of that company, stating that she desired to invest $50,000 of the money she was withdrawing from Kansas City Life Insurance Company in the type of investment mentioned above. After conversation, Mrs. Murrel decided on tax-free bearer municipal bonds, and invoices were prepared confirming the sale. Mrs. Murrel asked that the bonds be held in custody for herself and her children. On April 30, 1968, she returned with her check for $50,000 and gave Mr. Giss the following letter:

“Stephens, Inc.
114 East Capitol
Little Rock, Arkansas
Gentlemen:
You are holding for me the following bonds:
26.000 Fort Smith Special School District 454% Bonds, Due 3-1-86
25.000 Paragould 5 A% Industrial Development Revenue Bonds, Due 7-1-86.
It is my intention that each year I will make gifts to the following children:
William Wilson Murrel
Debra Margaret Murrel.
These gifts will be in the amount of $3,000.00 in principal amount, each year, beginning May 1, 1968.
Yours truly,
(s) Donna W. Murrel
Donna W. Murrel”

Mrs. Murrel was given a check on that date in the amount of $92.24, which was the difference between the cost of the bonds and $50,000. Thereafter, on July 2 ($359.40), and September 16 ($552.50), the company remitted interest checks, as orally directed, made out to Donna Murrel.

On December 24, 1968, Donna married John Milton Phipps, appellant herein. Joint checking accounts were opened in the name of Mr. and Mrs. Phipps, apparently with her money, in the Commercial National Bank and Worthen Bank & Trust Company of Little Rock. About $7,000 was placed in the Commercial National Bank, and it is not entirely clear what amount was placed in the Worthern Bank & Trust Company.* * On April 25, 1969, Mrs. Phipps closed the joint account at the Commercial National Bank, withdrawing $5,400.00 therefrom, and redeposited it in her individual savings account at Pulaski Federal Savings and Loan Association. About 5:00 a.m. on the following morning, Mrs. Phipps was found dead from a gunshot wound and the coroner found that Mrs. Phipps “apparently shot herself”. Thereafter, appellant was appointed administrator of the estate of Donna Louise Phipps, and subsequently her father, Dr. Wilson, as guardian of the minor children, filed a motion asking that Phipps be removed as administrator because of a conflict of interest. Phipps removed considerable furniture and household goods from the home, gave to friends some of his wife’s personal property, and never filed an inventory. He withdrew as administrator and the administrator in succession, First National Bank of Little Rock, has been unable to make an itemized inventory of the assets, some being in storage and some at the homes of friends and relatives. An accounting was filed by appellant covering the period from May 6, 1969, to May 29, 1969, and Dr. Wilson, appellee herein, filed numerous exceptions to the accounting. On hearing, and after taking the testimony of witnesses, the court found in effect, that the bonds purchased with the $50,000 were a gift from Mrs. Phipps to her minor children, the mother making provisions that annual payments of $3,000 should be made to each of the children each year; that Phipps had no interest in such bonds, and they were not a part of her estate. The court did find however that these funds were subject to right of contribution for estate, gift, and income taxes and cost of administration, and, the overplus, if any, should be paid to William M. Wilson, guardian of the persons and estates of the minor children.

The court further found that Phipps failed to file a true and accurate inventory and accounting, and a number of items were listed in the order (judgment) that had not been accounted for by appellant. The following findings were then made:

“The Court, also, finds, that because of such wrongful acts of misfeasance by the administrator, he has waived any right of curtesy or administrator’s fees in the estate of Donna Louise Phipps; that approval of such inventory and final report should be withheld pending delivery of all such items of personal property, in the hands of John Milton Phipps or which are in the possession of others, to the First National Bank, administrator in succession; that failure to do so forthwith will render him in contempt of the orders of this Court.”

From the order so entered, appellant brings this appeal. Three points are asserted for reversal and we will discuss them in the order listed.

“I

The Court erred in holding that John Milton Phipps, widower of the decedent, had waived his curtesy interest in the decedent’s estate.

II

The Court erred in holding that the municipal bonds described in the order appealed from were not a part of the estate, but were a gift to the decedent’s minor children.

Ill

The Court erred in holding that John Milton Phipps, as Administrator of the Estate of Donna Louise Phipps, wrongfully misappropriated those items of personal property described in the order appealed from.”

I

We think the court erred in holding that Phipps had waived his curtesy rights in the decedent’s estate. Our statute, Ark. Stat. Ann. § 61-250 provides that one who shall murder his or her spouse shall not be endowed in the real or personal estate of the decedent spouse, but there are no other statutory exceptions to the absolute right of dower or curtesy. As pointed out in IS ALR Sd 452:

“Statutes establishing a right of dower or curtesy sometimes provide for forfeiture of the right under some circumstances where the surviving spouse has been guilty of abandonment, desertion, or nonsupport. It has generally been recognized in the cases dealing with the application of such forfeiture statutes, that something more than a mere physical separation of the parties is necessary in order to work a forefeiture. ”

Forfeiture of the right of dower or curtesy is statutorily provided for in some jurisdictions in cases of abandonment, adultery, or nonsupport (in addition to murder of the spouse). On page 455, it is stated:

“In a number of cases involving the construction of a statutory provision granting the right of a surviving spouse to take a distributive share of the deceased spouse’s estate, or to elect such a share as against the spouse’s will, it has been held that in the absence of a statute declaring a forfeiture of such right for abandonment, desertion, or nonsupport, the court could not en-graft such an exception into the statute granting the primary right, and therefore the surviving partner would not be barred from sharing in the estate of the deceased partner.”

A number of cases are cited to this effect. Contrariwise, in the case of Doherty v. Traxler, 66 So. 2d 274, the Supreme Court of Florida held that where a husband married the wife, Gertrude, and only 24 hours after the marriage, which was never consummated by cohabitation, left for parts unknown, and went through a bigamous marriage with another woman, living with her for 20 years, the husband was estopped and barred from asserting any right in Gertrude’s estate. The court said:

“This proceeding is in the nature of an equitable proceeding. The appellant comes into Court with unclean hands. He shows by his own testimony that he has openly, brazenly and flagrantly violated the laws of God and man and every principle of right, justice, decency, public policy and sound morals. For twenty years he lived happily (by his own admission) with his bigamous wife and is still living happily with her. He shows no shame and offers no excuse or apology. He now seeks the aid of a Court of conscience, in an equitable proceeding, to assist him in obtaining the fruits of a commercial venture which culminated in an uncompleted and unconsummated ceremony and which he abandoned for the joys and pleasures of a life of his. own choosing. No Court should aid or assist him in such a nefarious scheme.”

See also Nedd v. Starry, 143 So. 2d 522.

Of course, in the case before us, there is no evidence that appellant had anything to do with the death of his wife, nor did he abandon her. To the contrary, the two were living together at the time of her death, and we find that the court committed error in holding that Phipps forfeited his right of curtesy in his wife’s estate.

II

We also find that error was committed by the trial court in holding that Mrs. Phipps had made the gift of approximately $50,000 worth of bonds to her two children. In Bennett v. Miles, Administrator, 212 Ark. 273, 205 S. W. 2d 451, this court set out the elements necessary to constitute a valid gift. We said:

“Gifts inter vivos, as well as causa mortis, to be effective as such, must be established by clear and convincing evidence and the elements essential to their validity must be proven as a whole by such evidence. In Stifft v. W. B. Worthen Co., 176 Ark. 585, 3 S. W. 2d 316, we said: ‘The elements necessary to constitute a valid gift inter vivos were stated by this court in Lowe v. Hart, 93 Ark. 548, 125 S. W. 1030, to the effect that the donor must be of sound mind, must actually deliver property to the donee, must intend to pass the title immediately, and the donee must accept the gift.’

In the more recent case of Baugh v. Howze, 211 Ark. 222, 199 S. W. 2d 940, we said: ‘To constitute a valid gift inter vivos, certain essential elements must be present, these include actual delivery of the subject-matter of the gift to the donee or to some one as agent or trustee for the donee, with a clear intent to make an immediate present and final gift beyond recall, and at the same time unconditionally releasing all future dominion and control by the donor over the property so delivered.’ ”

With these rules in mind, let us examine the facts in the instant case. Even a cursory examination of the letter written by Mrs. Phipps (Murrel) to Stephens, Inc., reflects that she did not make any gift on April 30, 1968, for she said “It is my intention that each year I will make gifts [Our Emphasis] to the following children”. So, it is manifest that nothing was given on April 30. It is also clear that she did not release all future dominion and control over the property, as she drew four payments of interest herself. While it might be said, that as mother of the children, she was the proper person to receive any funds due to them, it appears that the interest checks were deposited in her joint account with her husband at the Worthen Bank. Certainly, there is no evidence that there was a separate account for the children, and if she made a gift of the bonds to her children, she would not have been entitled to receive the interest checks individually. Furthermore, as stated by Mr. Giss, there was nothing to prevent Mrs. Phipps from changing her mind at any time subsequent to April 30, and giving new directions for disposition of the bonds or proceeds — or for that matter, selling the bonds, and doing whatever she desired with the money. Of course, we recognize that Mr. Giss is not a lawyer and his opinion that Mrs. Phipps could make further disposition of the bonds or proceeds would not control the law in the matter, but the evidence is important because it shows that Mrs. Phipps knew that she still had control of the bonds. Whether she had the right to sell the bonds was discussed with Mr. Giss, who testified:

“I guess it was after she was married, she called me one day about selling the bonds, wanted to know whether she could sell these bonds. She did not come in. She just called me on the phone and indicated that she thought she might want to put the money in some other place. And so I told her, of course, the bonds were marketable. They could be sold if she wished to. If she decided to sell them she should call us and we’d give her a market price on them. She did not call back, did not instruct us to sell them.”

Appellee, of course, takes the view that Stephens, Inc. as agent for Mrs. Phipps, was empowered to make the annual gift of $3,000 to each child. In addition to the other reasons already stated as to why no valid gift of the $50,000 worth of bonds was perfected, there is yet another flaw in appellee’s argument.

In Baugh v. Howze supra, we quoted with approval 28 C. J. § 31, p. 640, as follows:

“While a delivery may be made to a third party in order that the latter may deliver the subject of the gift to the donee as agent of the donor, the gift is not complete until there is an actual delivery to the donee, and until the gift is completed by delivery the donor can revoke the agent’s authority and resume possession of the gift. As the authority of an agent is revoked by the death of his principal, the death of the donor before the actual delivery of the property to the donee terminates the authority of the agent to make such delivery, and the gift, therefore, fails for want of delivery. So, also, the delivery of property to an agent to be delivered to an intended donee after the donor’s death is not sufficient to sustain a gift inter vivos, and such a disposition is void as being in contravention of the statute of wills.”

Mrs. Phipps died on April 26, 1969, which brings up the only phase of this transaction which might be said to create any possible right in the children. This relates to the fact that it could be argued that $3,000 of the principal amount was due to be given the children on May 1, 1968. But we cannot agree that such argument would be persuasive. In the first place, the sentence is most ambiguous. Does the language mean $3,000 per child, or $3,000 for the two of them? Mr. Giss interpreted the letter to mean $3,000 per child, apparently primarily because Mrs. Phipps had been interested in obtaining tax-free bonds, and Giss said that, under the law, $3,000 could be given to each child without any gift tax being due. However, it also appears that perhaps the understanding for the transfer was that the date should be one year later, i. e., May 1, 1969, for Giss had not separated any of the bonds or placed them in an account in the names of the children. It will be recalled that a gift inter vivos requires clear and convincing evidence and the sentence directing that gifts be made is certainly not clear, either in the amount, or, judging by the actions of Mrs. Phipps and Giss, when such payments were to commence. If such payments were to commence on May 1, 1968, it would seem that Mr. Giss would have made a book transfer soon after that date; likewise Mrs. Phipps would not have deposited the interest checks in her joint account in Worthen Bank. All of the funds are still being held intact, but under the record before us, we are unable to say that a gift was made of any amount of the bonds.

While only mentioned, and not really argued, it is suggested that a trust was created by Mrs. Phipps, with the children as beneficiaries and Stephens Investment Company as trustee. We cannot agree. In the first place, there is nothing in the evidence that reflects an intention to create a trust. In Krickerberg v. Hoff, 201 Ark. 63, 143 S. W. 2d 560, some of the rules relating to the creation of a trust are set out. Quoting from 26 R. C. L. 1183, § 20, the court said:

“There can be no trust if there is no intention to create one, and therefore the first and great rule of construction, to which all other rules must yield, is that the intention of the grantor shall prevail, provided it be consistent with the rules of law. ...”

Mr. Giss was emphatic in stating that Stephens, Inc. never acted as trustee for anybody, and was not acting in that capacity on this occasion.

This litigation was tried entirely on the theory that a gift was made to the children and, still quoting from the authority mentioned, the court further said:

“It is a well established rule that where an intended gift is incomplete or imperfect because of lack of delivery or other cause, and there is insufficient evidence to establish a trust, the courts will not, on account of such imperfection, convert the imperfect gift into a declaration of trust in order to effect the intention of the donor....”

Accordingly, this theory must fail also.

Ill

Very little is argued by the appellant on this point, it simply being stated that he did not intentionally withhold the reporting to the probate court of any items of personalty; that some of the items not reported were mistakenly thought to be his property, and “some were not reported through human error”. Without detailing the testimony, there was considerable evidence to show that many items that belonged to the estate had been appropriated to the use of appellant and a number of items which the court found belonged to the estate, are set out in the order. On some other items, which we consider of importance, no order was made. For instance, it was established that Mr. Murrel’s parents had given him two diamond rings, one to give to Donna, and one to wear himself. Mrs. Murrel, Roger Murrel’s mother, described the lady’s ring as a solitaire with stones on either side and set in platinum. The man’s ring was a solitaire. The rings had been insured in 1961 and had been appraised for that purpose by Charles F. Stifft & Co. of Little Rock, and Mrs. Muriel had a copy of the appraisal. The court sustained an objection by appellant to this offer of evidence on the basis that it was hearsay. Mrs. Murrel then stated, as her own testimony, that the lady’s ring was valued at $1,500 and the ring given to her son at $1,200. It is clear that she obtained this figure from the appraisal which she had. It is not clear whether the court admitted this testimony, but certainly, it should not be difficult, since Charles F. Stifft & Co. is located here in the city of Little Rock, to present evidence about the appraisal. Mr. Phipps agreed that Mrs. Phipps had these two diamond rings, but he said he didn’t miss them until he looked in the lockbox after the funeral. Of course, the inference in appellee’s brief is that Phipps took the rings. On the other hand, appellant testified that Dr. Wilson was in the house for several days after the death of his daughter, Mrs. Phipps. The court, in commenting on this phase of the case, said:

“There is undisputed testimony that there were some diamond rings of some substantial value belonging to the deceased which no one seems to be able to account for, which the Court is not willing to understand too quickly.”

We think the court should hear further evidence and pass upon the question of the rings.

As far as the court’s finding that Phipps failed to file a true and accurate inventory and accounting, and the assets listed which the court held had been intentionally withheld from such inventory, we are unable to say that these findings are against the preponderance of the evidence, and such findings are affirmed.

Summarizing, the judgment insofar as it relates to appellant’s forfeiture of curtesy rights, is reversed. Of course, if it is determined that Phipps took personal property, that belonged to the estate, such property would be properly charged against his curtesy interest. The judgment insofar as it holds that the $50,000 in bonds was a gift to the minor children, is reversed, and the court is directed to enter a judgment finding that these bonds belong to the estate. The finding of the court that the particular items mentioned in the judgment belong to the estate, and directing Phipps, under penalty of being held in contempt, to deliver such items to the administrator in succession, is affirmed. It is noted that the judgment recites that approval of the final accounting of Phipps is deferred until the administrator abides by the orders of that court.

It is ordered that the cause be remanded to the Pulaski County Probate Court (Third Division) for further orders not inconsistent with this opinion.

      Two sons who were listed originally as successor beneficiaries were children of Mr. Murrel by a previous marriage and following the endorsement by their step-mother, after she became entitled to the proceeds of the policy, lost all interest.

      The funds remained with the company until August 14, 1969, at which time Dr. William M. Wilson of Salisaw, Oklahoma, Donna’s father and grandfather of the two children, as guardian, was paid the balance from the company by two checks totaling $67,619.16, and these funds are not involved in this litigation.

      Interest checks from Stephens were also received on January 10, 1969, ($718.75), and March 7, 1969, ($552.50). These checks were endorsed by Donna W. Murrel per Donna W. Murrel Phipps and marked "For deposit only” with account number 4750-084-8 listed underneath.

      After the marriage between Phipps and Mrs. Murrel, she deeded her home to his attorney, and the attorney, in turn, deeded it back to the two as an estate by the entirety. Of course, upon her death, Phipps became absolute owner of the home, and that is not in question here. Subsequent to her death, appellant sold this property.

      It is not exactly clear from the record the specific amount that is presently held in bonds.


text:
    OZARK POULTRY PRODUCTS, INC. v. Roy GARMAN et al
    5-5647
    472 S.W. 2d 714
    Opinion delivered November 15, 1971

      Putman, Davis if Bassett, for appellant.

      Eugene Coffelt and Lloyd C. Burrow, Jr., for appellees.
   George Rose Smith, Justice.

The appellant owns a rendering plant between Siloam Springs and Gentry. The .appellees — nine homeowners in the vicinity — brought this suit to abate the plant, as a nuisance polluting both the air and a natural stream. The chancellor found the plant to be a public nuisance and ordered it closed unless conditions at the plant were corrected within a reasonable time fixed by the court. For reversal the appellant argues a single point: The appellees were not entitled to a decree abating a public nuisance, because they failed to show that they have suffered special damage different from that suffered by the public in general.

The facts are not in dispute and need not be narrated in detail. The appellant manufactures an ingredient used in fertilizer and poultry feed, by cooking such organic matter as dead farm animals and the offal discarded by poultry processing plants in northwest Arkansas and southern Missouri. The odors from the plant are so offensive that the plaintiffs and other persons in the vicinity are often unable to sleep at night or to eat their meals without nausea.

The appellant’s manager admitted on the witness stand that the plant’s operation is in violation of law. That the plaintiffs have been seriously damaged in the enjoyment of their homes is not open to question. Nevertheless, the appellant, citing Stoutemeyer v. Sharp, 89 Ark. 175, 116 S. W. 189, 21 L. R. A. (n. s.) 74 (1909), and Martin v. Hornor, 83 Ark. 330, 103 S. W. 1134 (1907), insists that since its foul-smelling rendering plant inflicts the same damage upon all homeowners within an area of several square miles, the facility is a public nuisance that can be abated only upon complaint by the attorney general, the prosecuting attorney, or other representative of the public.

The law offers no such immunity to a confessed and flagrant wrongdoer in the circumstances of this case. Even though the chancellor referred to the rendering plant as a public nuisance, which it may be, it is also a private nuisance with respect to the plaintiffs. The difference is that a public nuisance involves a violation of a public right held in common by the community as a whole, while a private nuisance is a violation of the rights of the individual, such as the right to enjoy his home. In both the Stoutemeyer case and the Martin case, supra, relied upon by the appellant, the court was dealing with an obstruction to a public street, clearly constituting a public nuisance.

An excellent statement of the distinction between the two classes of nuisances was made in Fisher v. Zumwalt, 128 Cal. 493, 61 Pac. 82 (1900), where the court said:

There is no doubt but that there are many nuisances which may occasion an injury to an individual for which an action will not lie by him in his private capacity, unless he can show special damage to his person or property, differing in kind and degree from that which is sustained by other persons who are subjected to similar injury. Among such may be mentioned the invasion of a common and public right which every one may enjoy, such as the use of a highway or canal or public landing place. But this class of nuisances is confined in most cases to where there has been an invasion of a right which is common to every person in the community, and not to where the wrong has been done to private property, or the private rights of individuals, although many individuals may have been injured in the same manner and by the same means. In the one case the invasion is of a public right which injures many individuals in the same manner, although it may be in different degrees. In the other case no public or common right is invaded, but by the one nuisance the private rights and property of many persons are injured. Because the nuisance affects a great number of persons in the same way, it cannot conclusively be said that it is a public nuisance, and nothing more. The fact that a nuisance is public does not deprive the individual of his action in cases where, as to him, it is private, and obstructs the free use and enjoyment of his private property.

The same point of view is expressed in the Restatement of Torts (2d), § 201 (1965):

[A private nuisance] may be some thing which unreasonably interferes with the actor’s use or enjoyment of his land, as where the health or safety of himself or a member of his household is threatened, or his use or enjoyment of the land is unduly restricted, whether by a deprivation or curtailment of one of the natural rights to air, water, and support, or otherwise. Thus it may consist of an ill-drained privy, a garbage pile emitting offensive odors. . .

That point of view was also taken in the original Restatement of Torts (1939), in the Introductory Note to Chapter 40:

A public nuisance is an offense against the State, and as such is subject to abatement or indictment on the motion of the proper governmental agency. A private nuisance is a tort to a private person, and actionable by him as such. A public nuisance may arise from an interference with the use by the public of a public place, such as a highway, navigable river, or park, the privilege to use which is given by the State or a municipal subdivision. . . .
Conduct that amounts to a public nuisance may at the same time be a private nuisance, and actionable as such. If a person’s interest in the private use and enjoyment of his land is invaded by another’s conduct so that the conduct would ordinarily be actionable by the person harmed, it is none the less actionable because the conduct is also a public nuisance.

We conclude that the appellant’s plant constituted a private nuisance with respect, to these appellees and was properly abated by the chancellor.

Affirmed.


text:
    CABANA HOMES, INC. v. Louie COWARD et ux
    5-5648
    472 S.W. 2d 709
    Opinion delivered November 15, 1971
    /. W. Durden, or appellant.

      Gean, Gean ir Gean, for appellees.
   Lyle Brown, Justice.

Appellees Louie Coward and wife, recovered judgment for the down payment and first installment payment on a mobile home purchased from appellant, Cabana Homes, Inc. The suit was based on an implied warranty of fitness for occupancy which appellees contended was breached. Appellant contends that the trial court, sitting as a jury, made a finding of breach of warranty which was not supported by substantial evidence. Appellant also contends that the record indisputably shows that appellant made necessary repairs within a reasonable time.

The parties closed the deal for the mobile home at appellant’s lot in Fort Smith on September 9, 1969, and two days thereafter appellant delivered the trailer to appellees at Barling, Arkansas, some nine miles from Fort Smith. According to Mrs. Coward a leakage problem occurred with the first rain about two weeks after they moved in the quarters; that those leaks were in the hall and front bedroom; and that Cabana responded to a call and fixed the leaks. She related that around the first of October it rained again and a leak developed around the kitchen window; and that ten days later there came a heavy rain and leaks occurred in every room. She said the paneling came loose and buckled and that the ceiling dropped down at one of the doors. After that experience she said appellant came out and worked on the roof; that the following day there came another hard rain; that again appellant sent a repairman who attempted to stop the leaks; and that the same experience occurred on October 30. She said the efforts to stop the leaks again failed and she notified appellant by letter that appellees were vacating the property and requested a return of their down payment and one monthly installment paid. Appellees vacated on November 2 and Mrs. Coward said the trailer was leaking on that date.

Appellee Louie Coward corroborated much of the testimony of his wife. “We had trouble on six occasions from the time we bought it until the time we vacated it. It was a big amount of rain damage every time it rained. It rained the day we left and it was still leaking. Every ceiling was stained, every carpet was stained, the baseboards were cracked open, the wall was buckling and the ceiling was stained and buckled in several places.”

Appellant presented the testimony of Jim Rogers, who is in the business of repairing mobile homes. At the direction of Cabana, Rogers did repairs to the mobile home on the six occasions about which Mrs. Coward testified. He detailed the extensive repairs his man made in order to stop leaks. He testified that it is not uncommon for mobile homes to have leaks. “Road sway” in moving trailers is the most common cause of seams breaking loose. He conceded that the number of repairs necessary on appellees’ home was unusually high.

Max Young, a sales manager for Cabana, testified that mobile homes are not perfect and some problems are to be anticipated. He said appellant took possession of the trailer after appellees moved out and it was returned to Cabana’s lot. He insisted that they did not find any further leaks; that the trailer was resold and moved to Oklahoma; and that the new owners have made no complaints.

A1 Cox, the salesman who sold the home to the Cowards, testified that he went to the home with Mr. Rogers after the Cowards moved out; that it had rained the night before and was misting rain at the time; and that they saw no signs of leakage.

If the testimony of the Cowards is to be believed it is unquestionable that they put up with the leakage until their patience was exhausted, and that when they vacated the trailer it was still leaking. If the testimony introduced by appellant is to be accepted at face value then we would have to say that the leaks were stopped after some six service calls. Of course the testimony is at opposite poles and it was the responsibility of the court, sitting as a jury, to determine the weight of the evidence. The trial court was more impressed by the testimony of Mrs. Coward, as stated in its findings. Her testimony was substantial and in that situation we are not permitted to disturb the court’s conclusion as to the facts.

Affirmed.


text:
    Richard W. RICKETT, Jr. v. Harry HAYES
    5-5676
    473 S.W. 2d 446
    Opinion delivered November 15, 1971
    [Rehearing denied December 13, 1971.]

      Gentry ir Huckabay, for appellant.

      Smith, Williams, Friday, Eldredge ir Clark, for appellee.
   John A. Fogleman, Justice.

The critical point for review in this malpractice action is whether the circuit court abused its discretion in limiting the pretrial examination of an expert expected to be called by the appelleedefendant. The appellant-plaintiff filed his complaint alleging a cause of action for malpractice of Dr. Harry Hayes, a plastic surgeon in Little Rock, in the diagnosis and treatment of a fracture of appellant’s lower jaw, sustained by him on July 1, 1966. Medical experts referred to appellant Rickett’s injury as a bilateral compound displaced fracture of the mandible which was concededly later complicated by infection. Critical issues devolved around questions whether appellee had negligendy failed to remove teeth in the fracture line, whether the surgery, reduction, fixation and treatment of the injured parts were properly performed and whether the services of an oral surgeon to whom appellant was ultimately referred should have been sought earlier.

Appellee directed pretrial interrogatories to appellant seeking to ascertain the identity of persons appellant expected to call as witnesses or who possessed information regarding matters alleged in the complaint and particularly inquired as to physicians or surgeons on whose testimony appellant would rely. Appellant included in the list of those who possessed information Dr. Wade Smith of Little Rock, to whom he was referred by appellee, Dr. Leigh K. Haynes, a plastic surgeon of Memphis, Tennessee, who treated appellant after the referral to Dr. Smith, Dr. Howard Misner and Dr. Joe Hall Morris, treating oral surgeons of Memphis, and Dr. Robert V. Walker, an oral surgeon of Dallas, along with Little Rock orthopedic surgeons and radiologists. Of these, Smith, Morris and Walker testified at the trial.

In answering pretrial interrogatories, appellee stated his reasons for failure to remove some of Rickett’s teeth before undertaking to reduce and fix the fractured jaw. He-said that the determination whether such teeth should be removed or retained was a matter of professional medical judgment of the plastic surgeon, governed by his judgment of the circumstances involved, and that he did not remove the teeth in Rickett’s case because, in his judgment, they did not interfere with reduction of the fracture. He testified that, in his judgment, teeth should be removed where they were so loose or weakened that their instability might cause future complications. He also answered that, based upon medical judgment, the development of osteomyelitis during the period of some seven weeks between the reduction and fixation and the removal of the appliances placed in appellant’s mouth would dictate either immediate surgery or an additional waiting period to allow nature to effect a healing of such a fracture. He chose the latter course of action which he called procrastination. Dr. Hayes admitted that oral surgeons treat a number of injuries about the mouth, teeth and facial bones.

Appellant caused a subpoena to be issued and served on Dr. James G. Stuckey, the only plastic surgeon other than appellee, practicing in the locality. Appellee filed a motion to quash this subpoena. The circuit judge entered a pretrial order denying the motion to quash but limiting the discovery deposition to inquiries about facts, and not about the doctor’s opinion regarding appellee’s alleged failure to meet the standard of his locality or a similar locality. Appellee also filed a motion questioning the admissibility of testimony of oral surgeons as to the standard of care of a plastic surgeon in Little Rock or a similar locality and appellee’s failure to meet that standard. This motion was denied the day before the trial commenced.

Appellant’s attorneys took the deposition of Dr. Stuckey under the limitations imposed by the court, but it is not in the record. Just before the trial began, one of appellant’s attorneys stated an objection to the court’s limitation on the Stuckey deposition, asserting inability to cross-examine this doctor when he testified and reminding the court that there were only two plastic surgeons in Little Rock during the period involved.

We have never been faced with the particular question involved here. In Mallett v. Brannon, 246 Ark. 541, 439 S. W. 2d 32, a personal injury action, we held that there was no abuse of discretion by the circuit court in denying a continuance to a defendant to permit the taking of the discovery deposition of a medical expert by whom the plaintiff had been examined on the eve of trial. We based our holding upon the adequacy of expert opinion which had already been obtained by the defendant from other sources together with that which was presented at the trial. Thus, we said, there was no urgent need for plaintiff’s taking this discovery deposition. The question presented here appears in an entirely different frame, so the result we reached there is not controlling here. It is significant that we found that the defendant in Mallett was not caught empty-handed because he was able to present expert testimony contrary to that given by plaintiff’s newly discovered expert. We recognized, however, that authorities support denial of discovery on an opposing party’s expert witnesses only in the absence of extreme need by the examining party and his inability to obtain expert opinion on the same matter from other sources. These authorities indicate that an exception to the general rule exists under special circumstances deemed to constitute good cause for allowing such a pretrial examination. Appellant argues that the peculiar circumstances, absent in Mallett, prevail in his case, so that it comes within the exceptions noted. We agree.

One of the purposes of discovery procedures is to provide a device for ascertaining not only facts, but information as to the existence or whereabouts of facts relative to the basic issues between the parties. Hickman v. Taylor, 329 U. S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947). It is intended that these procedures make a trial more nearly a fair contest than a game of blindman’s buff by requiring disclosure of basic issues and facts to the fullest practicable extent. United States v. Proctor & Gamble, 356 U. S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958). The ascertainment of the sources from which evidence that may be used at trial might be obtained, such as the identity and location of persons having knowledge of relevant facts, is as much a purpose of discovery as any other. Ark. Stat. Ann. § 28-348(b) (Repl. 1962); 8 Federal Practice and Procedure, Wright and Miller, 15 § 2001; Hickman v. Taylor, supra. This permits a litigant to secure the type of information which may lead to the production of other relevant evidence, or which will facilitate his preparation for trial. See Hickman v. Taylor, supra; 8 Federal Practice and Procedure 18, § 2001; Tumlison v. Harville. 237 Ark. 113, 372 S. W. 2d 385; Allen v. Arkansas State Highway Commission, 247 Ark. 857, 448 S. W. 2d 27.

We have recognized the importance of cross-examination of an adverse witness not only to test his credibility but also in an attempt to wring disclosures which might modify or explain his testimony on direct examination or bring it into a perspective which might present a view more favorable to the cross-examiner. Washington National Ins. Co. v. Meeks, 249 Ark. 73, 458 S. W. 2d 135. Planning effective cross-examination of adversary witnesses is one of a trial lawyer’s most important responsibilities in preparation for trial, particularly when the witnesses are experts. See Allen v. Arkansas State Highway Commission, supra; United States v. 23.76 Acres, 32 F.R.D. 593 (D. C. Md. 1963). Handicaps to attempting full cross-examination of an expert witness without pretrial discovery of his opinion with its supporting data and theoretical basis are discussed by Professor Friedenthal in “Discovery and Use of an Adverse Party’s Expert Information,” 14 Stanford Law Review 455, 485 et seq. The desirability of permitting discovery of adverse expert witnesses to enable advance preparation for effective cross-examination is well stated in the Advisory Committee’s Notes to Proposed Amendments to Federal Rules of Civil Procedure Relating to Discovery at 48 F. R. D. 487. Depositions taken under the applicable statute may be used for the express purpose of contradicting or impeaching the testimony of the deponent at the trial of the case. Ark. Stat. Ann. § 28-348(d)(l).

The circuit court’s limiting order was entered under the authority which is designed to prevent abuse of discovery processes by limiting the subject of inquiry and the scope of examination. Ark. Stat. Ann. § 28-352(b) (Repl. 1962). In all matters pertaining to discovery the trial judge is necessarily vested with a wide latitude of discretion, and appellate courts will review orders in the exercise of this discretion only to determine whether there has been an abuse of discretion which is prejudicial to the party appealing. Under ordinary circumstances, any error in the exercise of this discretion will be harmless because of ultimate mootness or absence of prejudice. 8 Federal Practice and Procedure 29 et seq., § 2006. Yet, when there has been an undue limitation of pretrial discovery to the prejudice of substantial rights of appellant under the circumstances prevailing, a judgment will be reversed if subsequent developments have not rendered the question moot. Edgar v. Finley, 312 F. 2d 533 (8th Cir. 1963); Roth v. Bird, 239 F. 2d 257 (5th Cir. 1956); Goldman v. Checker Taxi Co., 325 F. 2d 853 (7th Cir. 1963); Haney v. Woodward & Lothrop, Inc., 330 F. 2d 940 (4th Cir. 1964). See also, Goosman v. A. Duie Pyle, Inc., 336 F. 2d 151 (4th Cir. 1964); Arkansas State Highway Commission v. Stanley, 234 Ark. 428, 353 S. W. 2d 173, 4 A. L. R. 3d 749.

Decisions upholding limitations on discovery of an expert witness, particularly where there was a foreclosure of inquiry as to the expert’s opinions and conclusions, are abundant and might well support an order such as that entered here in the ordinary case. Still, there are recognized exceptions to the otherwise proper limitation of discovery of the conclusions of an adverse party’s expert where the evidence is indispensable to a determination of a material issue and would be otherwise unavailable. Leininger v. Swadner, 279 Minn. 251, 156 N. W. 2d 254 (1968); United States v. Meyer, 398 F. 2d 66 (9th Cir. 1968). An entirely different situation obtains, however, when the expert’s testimony pertains to the very crux of the issue to be determined on trial. United States v. Meyer, supra; United States v. 364.82 Acres of Land, 38 F. R. D. 411 (D. C. Cal. 1965).

For example, in an eminent domain proceeding, the critical issue is usually the amount of just compensation, and evidence on that issue generally consists of the opinions of opposing experts and the factual and theoretical bases upon which they rest. In United States v. Meyer, supra, it was held that a landowner was entitled to a disclosure of the condemnor’s appraisers’ opinions and their factual and theoretical foundations to enable him to fairly evaluate the respective claims for settlement purposes, determine the real area of dispute, narrow the actual issues, avoid surprise and prepare adequately for cross-examination and rebuttal. In so holding, the court there recognized that the weight to which an appraiser’s opinion testimony is entitled rests upon the validity of the appraiser’s premises, procedures, and theories, the soundness of his factual determinations, the methods he has followed and the formulae he has applied. The court in Meyer felt that full pretrial disclosure of the opinions of the experts was essential to the accomplishment of the basic purposes of the discovery rules, and that the opinions of these appraisers and their basis were information that could not be obtained from any other source. To the same effect, see Franks v. National Dairy Products Corporation, 41 F. R. D. 234 (D. C. Texas 1966), aff’d 414 F. 2d 682 (5th Cir. 1969); United States v. 23.76 Acres, 32 F. R. D. 593 (D. C. Md. 1963). The propriety of pretrial examination of an adverse expert in such cases for the purpose of trial cross-examination is consistent with the rationale of Hickman v. Taylor, 329 U. S. 495, 67 S. Ct. 385, 91 L. Ed. 451 (1947) and the ideal of liberal construction there expressed. A similar result has been reached in permitting discovery of certain reports of an adverse party’s expert in a patent infringement case as part of the facts involved. E. I. DuPont de Nemours Co. v. Phillips Petroleum Co., 24 F. R. D. 416 (D. C. Del. 1959).

There is perhaps no case in which the result of the trial on the ultimate issue depends more upon the testimony of expert witnesses than a malpractice case. When the duty of the physician or surgeon in the application of skill and learning ordinarily used in the same medical field in the locality in which he practices is not within the realm of common knowledge, and there is any dispute as to propriety of the method utilized, the critical issue as to liability depends entirely on expert testimony. Lanier v. Trammell, 207 Ark. 372, 180 S. W. 2d 818; Gray v. McDermott, 188 Ark. 1, 64 S. W. 2d 94.

At the time the limiting order was entered, appellant could not know with any degree of certainty whether the professional standards in Little Rock were the same as elsewhere or what localities could be considered similar, insofar as these standards were concerned. The testimony in the case clearly demonstrates that appellee’s duty in the premises was not a matter of common knowledge. Even though the court ruled on the day before the trial that appellant might present testimony of oral surgeons on this basic issue because their field overlapped with that of plastic surgery in the treatment of the particular injury involved, appellant had no means of anticipating this ruling, and appellee’s objection to the competency of these witnesses had been made known and discussed with the court at several prior pretrial hearings. It is also significant that appellee was at this late date still objecting to testimony by experts from Memphis and Dallas as incompetent because of the locality rule, even though testimony at the trial left little room for doubt that professional standards in those places were the same as in Little Rock. Had both objections been sustained, none of the experts who testified on behalf of appellant would have been permitted to do so.

Many cases relating to the expert witness as a subject of discovery draw a distinction between discovery of facts upon which the expert bases his opinion and discovery of his opinions and the conclusions he draws from these facts. See Franks v. National Dairy Products Corporation, 41 F. R. D. 234 (D. C. Tex. 1966). We need not engage in a philosophical discussion whether the professional standard for plastic surgeons in Little Rock was a fact, rather than a matter of opinion, and discoverable in spite of the court’s limitation, because we cannot see how testimony as to standards and as to appellee’s compliance therewith could possibly be separated so the examiner could ask a pertinent question which did not call for the expression of an opinion or conclusion, or how the witness could answer such a question without expressing his opinion or his conclusion based upon the facts in the case.

We have recognized the existence of the practical problem confronting a plaintiff seeking expert testimony in a medical malpractice case. See Graham v. Sisco, 248 Ark. 6, 449 S. W. 2d 949. In order that appellant might prepare for the trial, it became particularly important that he be fully informed as to the testimony to be given by appellee’s expert witness, the only other plastic surgeon in the locality. Assuming that the deposition taken under the court’s limitation (but not in the record before us) did enable appellant to discover, as a matter of fact, what localities were similar to Little Rock in the matter of professional standards and adequate information as to sources from which he might obtain evidence on the critical issue, and, further assuming that appellant had other sources of adequate information as to methods, standards, and procedures, still he could not anticipate Dr. Stuckey’s opinion whether appellee had met the appropriate standard and his factual and theoretical bases for that opinion. For that matter, he could only speculate what this surgeon might consider to be the appropriate standard of skill and learning. Thus, in a situation where it might be calculated that the particular expert’s testimony would carry considerable weight, appellant’s attorneys may well have been severely handicapped, ás he claimed on the threshold of the trial, in conducting a cross-examination of this witness, which might be the only effective means of minimizing the weight to be given to his testimony by the jury. Because of this, the trial court’s order was unduly restrictive. This conclusion is in harmony with our longstanding commitment to the liberal interpretation of the discovery act necessary to accomplish its salutary purposes. See Bower v. Murphy, 247 Ark. 238, 444 S. W. 2d 883; Arkansas State Highway Commission v. Stanley, 234 Ark. 428, 353 S. W. 2d 173, 4 A. L. R. 3d 749.

Even though appellant’s attorneys conducted an apparently extensive cross-examination of Dr. Stuckey, we cannot say that the error in unduly restricting the scope of discovery inquiry was harmless in view of what we have said. We could only speculate whether the cross-examination would have been more effective if appellant had not been limited in his discovery. We presume that error is prejudicial unless we can say with assurance that the record discloses that it is harmless. Arkansas State Highway Commission v. Parks, 240 Ark. 719, 401 S. W. 2d 732, 26 A. L. R. 3d 775; Allen v. Arkansas State Highway Commission, 247 Ark. 857, 448 S. W. 2d 27. This we cannot do.

Although the judgment must be reversed for the error indicated, other points argued by appellant may well arise on retrial. He contends that there was reversible error in his being cross-examined about prior convictions for drunkenness and about an arrest for being drunk. We find no merit in either argument. We do not agree that cross-examination as to past convictions is limited in Arkansas to convictions of crimes which are infamous and dishonest in nature. We have specifically held that questions about previous convictions of drunkenness were permissible to test credibility. Atha v. State, 217 Ark. 599, 232 S. W. 2d 452. Such cross-examination is not precluded by either Ark. Stat. Ann. § 28-707 (Repl. 1962) or Ark. Stat. Ann. § 75-1012 (Supp. 1969) as contended by appellant. Ark. Stat. Ann. § 28-605 (Repl. 1962) makes evidence of former conviction of a witness of any crime admissible as going to his credibility. Any possibility of conflict between this section and Ark. Stat. Ann. § 28-707 is immaterial here, because the adoption of the former section followed that of the latter by more than 40 years. Ark. Stat. Ann. § 75-1012 prevents the use of evidence of violation of the uniform act regulating traffic on the highways [Ark. Stat. Ann. § 75-1001 et seq. (Repl. 1957)] to attack the credibility of a witness. Ark. Stat. Ann. § 48-943 (Repl. 1964) making public drunkenness a misdemeanor is not a part of the act covered by Ark. Stat. Ann. § 75-1012.

There was no error in the court’s failure to prevent appellee’s attorney from asking appellant whether he had been arrested for drunkenness three days before appellant testified on appellee’s second discovery deposition. In the first place, no objection was made to the question, and appellant’s general and continuing objection to his interrogation on past convictions did not reach this inquiry. In the second place, there is an exception to the general rule that a witness may not be impeached by examination as to prior arrests, when the inquiry is made of the witness himself to show that he has testified falsely in answering a question about previous arrests. Montaque v. State, 219 Ark. 385, 242 S. W. 2d 697. See also III A Wigmore on Evidence 1018, § 1023. In this instance, appellee asked Rickett if he had not responded in the negative, on the occasion of the second deposition, to an inquiry whether he had been arrested since the taking of the first deposition. The question about the arrest actually came within the exception to the general rule.

The judgment is reversed and the cause remanded for a new trial. Appellee’s prayer that we tax the cost of his additional abstract to appellant is denied.

        United States v. 364.82 Acres of Land, 38 F. R. D. 411 (1965).

      Apparently appellee relied upon the rule that a defending physician’s actions are to be tested by the general doctrine of his own school. But we have said that the principles of that school may be shown by an expert who practices the principles of a different school. See Bockman v. Butler, 226 Ark. 159, 288 S. W. 2d 597. The difference between the basic approaches of oral surgeons and of plastic surgeons to the proper procedure in appellant’s treatment seems to have been recognized throughout the testimony.

      Expert opinion presented as evidence going to a critical issue has been treated in substance as a matter of fact. United States v. 38 Cases, 35 F. R. D. 357 (D. C. Pa. 1964).