author: John A. Fogleman, Justice.

text:
    Rosie K. WELTER v. James CURRY et al
    75-371
    539 S.W. 2d 264
    Opinion delivered July 19, 1976

      Wright, Lindsey & Jennings, for appellant.

      Gordon & Gordon, P.A., for appellees.
   John A. Fogleman, Justice.

Appellees brought this action to recover damages arising from a collision between an automobile driven by appellant Rosie K. Welter and a Honda minibike operated by James Curry, Jr., son of James Curry and Sharon Kay Curry. The incident occurred around 5:00 p.m. on October 6, 1973 on the paved portion of Highway 95 near Ramsey’s Grocery, about four miles north of Morrilton. James Jr. was 10 years of age at the time and his five-year-old sister was riding on a seat behind him. Both children suffered injuries and the bike was virtually destroyed. The evidence as to exactly how the collision occurred is in hopeless conflict. The two children had come from the Curry dwelling about one-half mile west of Highway 95, on a dirt road for the purpose of putting air in the tires of the minibike at Ramsey’s Grocery. The collision occurred as they started to cross the highway on their return journey. Most of the conflict in the testimony is in the different versions as to the point of approach to the highway by young Curry and the distance he had travelled toward the west from the grocery when he was sighted by the appellant and when the children and minibike were struck by her automobile.

Appellant raises five points for reversal. We find that the judgment must be reversed as to James Curry, Jr. on two of these points.

We find error in instructions given the jury. First there was error in including among the elements of damages the third alternate form of AMI, Civil, 2213 (a). This form is to be used only when there is evidence that there is permanency of injuries. See Note on Use, AMI, Civil, 2202. That evidence must tend to establish permanency with reasonable certainty. It must not leave the jury to speculation or conjecture. St. Louis, I.M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S.W. 104; McCord v. Bailey, 195 Ark. 862, 114 S.W. 2d 840; Missouri Pacific Transp. Co. v. Kinney, 199 Ark. 512, 135 S.W. 2d 56; Midwest Bus Lines, Inc. v. Williams, 243 Ark. 854, 422 S.W. 2d 869.

There is no doubt that James, Jr. suffered serious injury. He was treated by Dr. Thomas Hickey at Morrilton and Dr. John Lohstoeter, an orthopedic surgeon, in Little Rock. He was put in traction for seven days at St. Vincent Infirmary in Little Rock, where he was a patient for exactly three weeks. Prior to discharge he was placed in a body cast. It was removed March 1, 1974, after which he remained in bed at home for about ten days to two weeks. Thereafter, it was necessary that he use crutches until April 23, 1974. At the time of the trial, his right leg was smaller and shorter than his left, he walked with a limp, and was wearing a special pair of shoes with a five-eighths inch sole and a one-fourth inch heel for the right foot. Dr. Lohstoeter had prescribed an exercise regimen for him to follow for a period of four to six years. At the time of the trial, his mother testified that he had regained virtually all of the strength of his right leg, but that he complained intermittently of pain and trouble with it. The child said that he had not regained the strength of that leg. He lost a year in school. A tutor was employed for him for a time. He will be checked periodically by Dr. Lohstoeter until the end of his growth period. At the time of the trial, Dr. Lohstoeter had not seen him since April 17, 1975.

Dr. Lohstoeter testified for appellees on direct examination substantially as follows:

James had suffered a transverse split fracture of the right thigh bone at the upper and middle one-third junctions. This involved the bond between the hip and the knee. There was a shortening of the leg because of muscle spasms. Traction was utilized to adjust the bone fragments into an optimum position for healing. In a youth of James’ age, bone growth is stimulated by a fracture, so it was necessary to allow some shortening of the leg to compensate for the extra growth. James would have over six years for this growth of one to one and one-fourth inches to take place. The shortness is to be anticipated for one and one-half to two years. On examination on January 28, 1974, James’ condition was very stable and very good. X-rays showed good healing and good maintenance of the casted position. When the cast was removed, there was good healing of the fracture elements. Muscle tone was definitely wasted away. On March 15, 1974, James was progressing quite well. He still had some stiffness in the right hip, because of associated scarring and strain elements. On April 23, 1974, when the crutches were discarded, James was put on a full weight bearing program for the next four weeks, to be fully realized during the last week of May or the first week of June. He still had a great deal of wasting away of muscles and had not learned to protect the ligaments at his knee, ankle and hips. The shortness of the leg causes a pelvic tilt. To correct this, the placement of a heel lift was recommended on June 7, 1974. X-rays of the right foot revealed no damage, but there was a softening of the bones which accompanies immobilization and disuse. On August 12, 1974, the boy was complaining of pain in the right leg when he walked on it a great deal and occasionally when he did not walk. There was laxity in the ligaments. The doctor stressed the necessity for diligent application to the exercise routine. This admonition was repeated on October 24, 1974. On Jaunary 7, 1975, James displayed better walking and stance pattern. While quadriceps atrophy was still present in the right leg, the muscle tone was building and it was evident that the boy was applying himself diligently. His condition was quite good on April 7, 1975, even though he still displayed some front thigh muscle smallness and loss of tone by comparison with the left side, but there had been a fifty per cent correction which was “roughly par for the course.” His right knee was quite stable and there was not a great deal of laxity there, even though there were so-called noises when he was bending it back and forth. His gait pattern was good and without stiffness. The bone fracture was totally healed, stable and molded, and there was no rotational deformity to any extent. The shortness was still present, but it will be overcome in five or six years. His right leg had returned to equal, if not dominant position. There is no reason why he should not return to normal activities. His dysfunction now existing will regress and lessen with the passage of time and he will, in the doctor’s opinion, return to full function without any disability to the leg. A limited degree of normal activity for his age group was recommended. He should withstand tackling for thighbone and fracture elements, but he is advised not to play football where he may do injury to his knee because he does not have muscle in the front thigh to take the buffing around the knee. He is more restricted in normal restriction, inflection and ex-tention capabilities at the knee than the doctor would anticipate him to be. Improvement over the next two years is expected and when he reaches full growth pattern, there will be no relative shortening so far as the right leg, of which he now has good use, is concerned. This can only be determined over a three to six year span. The doctor was hopeful that in five to six years, James will have absolutely normal use of his leg. The rigid exercise program to achieve this is an abnormal load for the youngster to bear. It requires him to exercise ten to fifteen minutes three or four times a day to maintain his continuity to normalcy. The doctor anticipated a very good result.

James is to return to the doctor within one year from the last examination and when he is fourteen years of age, a scanogram will be performed to measure the thighbone and tibia. This will probably be needed again when he is sixteen years of age and also when he is seventeen or eighteen. There was no significant cross-examination of the doctor.

Clearly, there is no substantial evidence of permanent injury. The jury could have considered the nature, extent and duration of the injury under the first alternative of AMI, Civil, 2213 (a).

The evidence in this case is readily distinguishable from that in Bailey v. Bradford, 244 Ark. 8, 423 S.W. 2d 565; Belford v. Humphrey, 244 Ark. 211, 424 S.W. 2d 526; Arkansas Drilling Co. v. Gross, 179 Ark. 631, 17 S.W. 2d 889 and Missouri Pacific Transportation Co. v. Mitchell, 199 Ark. 1045, 137 S.W. 242, relied upon by appellees. In Bailey, there was a brain injury to the child there involved, and, at the time of the trial, she had a fear of riding in an automobile, had trouble with her speech, and still suffered headaches. She could not carry on a conversation without getting tangled up with her words and having to stop.

In Belford the injured party had suffered a personality change, was unable to perform certain movements without pain, was, after twenty months, still taking eight muscle relaxant pills per day, and would have difficulty obtaining employment where a physical examination was required. In Gross, the defendant rather than the plaintiff requested an instruction making the permanency of the injury a jury question. In Mitchell, there was evidence of permanency of injuries and the question there was excessiveness of the verdict rather than sufficiency of the evidence to make a jury question on permanency of the issues.

In still another case, Duckworth v. Stephens, 182 Ark. 161, 30 S.W. 2d 840, the nature of the injury, a fracture of the skull at the base, was held to be sufficient evidence of permanency to make a jury question. The testimony of the treating physician was that this injury, with the accompanying long period of unconsciousness of the patient and his bleeding from the ears, was necessarily a serious condition. The testimony of the injured party was that, at the time of the trial, several months later, he still had a discharge of pus from his ear and was still suffering great pain.

It would be a work of supererogation to compare the evidence in this case with that in others of the many cases wherein we held the evidence to be either sufficient or insufficient to pose a jury question on permanency. It is sufficient to say that the evidence in this case neatly fits into the pattern of those cases holding the evidence insufficient to produce a jury question, exemplified by St. Louis, I.M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S.W. 104. There a seven year old boy, after being struck by a train at a railroad crossing, had suffered spasms over a period of eleven months between the injury and the trial, had become very nervous and irritable in contrast to his previous quiet nature, and had lost weight and appetite. His physician testified that the duration of the youth’s condition was hard to foretell; that, although he might get well and might not, it was questionable that he ever would; and that the question depended upon the amount of involvement of the child’s nervous system and nerve centers of the brain, but that it was possible he might get well under the proper surroundings; that his condition might develop into a paralytic one or a temporary loss of vitality to the extent that he would never get well; that he would have to get well in the next few years or he would never get well; that recovery from neurasthenia from a shock after a period of eleven months, was possible; that he could not say that the probabilities of recovery were greater than of his not recovering in a reasonable time; and that, the case being a doubtful one, the doctor could not be sure whether the injury was permanent or not. This evidence was at least as favorable to the plaintiff as the evidence here. The defendant asked the court to instruct the jury that the evidence did not warrant a verdict for the child, Wharton Bird, for permanent injury. We held that the court erred in not granting the request. We said:

*** The testimony, viewed in the strongest light in favor of appellee, does not make it reasonably certain that Wharton Bird was permanently injured. Unless there is testimony tending to show with reasonable certainty that the injury is permanent, the court should not permit the jury to assess any damages for permanent injury. [Citations omitted.]
$ $ $ $ $
The experts on behalf of appellee did not testify that, in their opinion, the injury to Wharton Bird was permanent. It was a matter of speculation with them as to whether it was permanent or not. This being true, it must also have been only a matter of conjecture with the jury. But to fulfill the requirements of the law there must be affirmative testimony to the effect that the injury was permanent, before the jury would be authorized to find that such was the fact; and the court should not allow the permanency of the injury to be considered as an element of damage, where the witnesses themselves are uncertain as to whether there would be any permanent injury, and where the nature of the injury, per se, does not show that the injury was permanent.

As we have heretofore pointed out, the injuries in this case make it unlike those upon which appellees rely, in which the nature of the injury is itself sufficient evidence of permanency.

Another error was the inclusion of AMI, Civil, 2213 (g) in the instruction regarding the measure of damages to James Curry, Jr. The specific objection made went to the inclusion of the word “scar.” It does not seem that a non-disfiguring scar, which is ordinarily not visible and which does not in any way diminish the future earning power of a minor boy, is a compensable damage, even though it is permanent. See Arkansas & Louisiana Ry. Co. v. Sain, 90 Ark. 278, 119 S.W. 659, 22 LRA (ns) 910; Pine Bluff S & S R. Co. v. Leatherwood, 117 Ark. 524, 175 S.W. 1184. See also, Missouri Pacific R. Co. v. Riley, 198 Ark. 372, 128 S.W. 2d 1005. Appellees were well aware of this limitation when they alleged in their complaint that young Curry had suffered disfiguring scars that would cause him humiliation and embarrassment.

The evidence in this case fell far short of a showing that the boy had any scar that was compensable. His grandmother testified that, while he was in the hospital, the boy had a raw sore clear around the back of his right leg and another between his knee and his thigh and that it took a long time for these to heal. She testified that at the time of the trial he still had a big scar on the back of his leg and one “on top” between the knee and the thigh. His mother testified that a cast, which had covered James’ body from his chest just below his shoulders down to his right foot on one leg and to his left knee on the other, caused scarring on his thigh and on the calf of his right leg. There is no other testimony about the boy’s scars.

Assuming that this testimony was sufficient to indicate that the scars were permanent, there is not a word of testimony to indicate that they are disfiguring, discomforting, humiliating, disabling, or that they would normally be visible. Appellant’s objection was well taken. If, indeed, the scars were a basis of compensable damage, there should have been evidence available to make a proper showing. Where definite evidence is available, “guess work” evidence would leave a jury to pure speculation. Thomas v. LaCotts, 222 Ark. 171, 257 S.W. 2d 936. The situation might have been different if the scar had been exhibited to the jury. Appellant’s objection was not answered by the trial judge’s remark that all appellant’s lawyer had to say was, “Show me the scar.” The burden of proving entitlement to damages remained upon appellees and no burden ever rested upon appellant in this respect.

We do not find reversible error in the court’s refusal to submit to the jury the issue of the negligence of the father, James Curry, by special interrogatory.

Appellant alleged in her answer, counterclaim and third party complaint that the collision and the resulting injuries and damages were proximately caused or contributed to by the negligence of the parents and by the negligence of James Curry, Jr. which she contended should be imputed to the parents. Appellant specifically alleged that the father was negligent in entrusting a Honda minibike to his young son who was not, and could not be, licensed to operate it on the highways, in permitting the little daughter to ride as a passenger on the vehicle, in failing to properly supervise the children in the use of, and travel on, the bike, in permitting the young boy to ride the bike across the highway with his young sister as a passenger and in failing to instruct the boy in the proper operation of the bike when attempting to cross a paved highway and to apprise him of the dangers of crossing a paved state highway on a minibike with a five-year-old child as a passenger. Appellant sought contribution from the father as a joint tortfeasor. She also alleged that his fault exceeded hers. By an amendment to her pleading, appellant alleged that Curry, Sr., the owner of the minibike, allowed his minor son to operate it at the time and place of the collision, knowing that the child’s operation of the vehicle was prohibited by law by virtue of the child’s youth, incompetence and inexperience and that he knew that the child would operate it negligently and without having a valid license. For these reasons, she sought full indemnity from the father.

The evidence, viewed in the light most favorable to appellant, certainly raised a question of fact as to the negligence of the parents, who were themselves, seeking recovery from appellant. The case was submitted to the jury for a general verdict. There were verdict forms for the jury to find for or against the parents on their claim against appellant, and to find for or against them as next friends of each of their minor children. There were also general verdict forms for findings for or against appellant on her counterclaim against James Curry for property damage. Among the instructions given the jury, there was one directing the jury to compare the negligence, if it found appellant negligent and also found a party claiming damages negligent, and if the party claiming damages was less negligent, to reduce his damages accordingly. There was no instruction or interrogatory which called upon the jury to state the percentages of negligence attributable to any party or to state whether it found either of the parents or the Curry boy guilty of any negligence. In the jury verdict in favor of the plaintiffs and fixing their damages, there is no indication whether the jury found all the plaintiffs to be without negligence or whether the verdict was arrived at by comparing negligence, with the greater negligence being attributed to appellant. We find no verdict or judgment on appellant’s counterclaim for damages to her automobile. The general verdict form could not be interpreted as relating to appellant’s countersuit for indemnity or contribution.

Appellant had asked the court to submit separate interrogatories asking the jury whether the father was negligent, and, if so, to apportion the negligence between her and the father. The circuit judge refused, saying that his instructions to the jury were sufficient to cover the matter. Appellant’s attorney also asked that an additional verdict form be submitted for the jury’s use, in case it found against appellant on any of the other forms, in finding for her and against James Curry, the father, and fixing an amount of recovery against him, or, conversely, in finding against her and for him on her third party complaint. This request was also denied. Appellant’s attorney also submitted specific forms for special interrogatories by which the jury could answer affirmatively or negatively whether they found the elder Curry guilty of negligence which was a proximate cause of damages sustained by the plaintiffs and if they answered in the affirmative, to apportion the negligence between James Curry, the father, and appellant, by percentages.

This court has been most reluctant to hold a trial judge in abuse of discretion in submitting a case to a jury for a general verdict, rather than on interrogatories, and we cannot do so in this case. Appellant had sought both indemnity and contribution from James Curry, Sr. The only responsive pleadings were general denials of appellant’s allegations. It is true that no judgment was entered on these features of the case or on any part of appellant’s counterclaim or third party complaint.

. Still, we cannot say that there was an an abuse of discretion. The burden was on appellant to demonstrate error on appeal. Holt v. Holt, 253 Ark. 456, 486 S.W. 2d 688. Appellant failed to do this. She argued in her original brief that the determination and quantification of the negligence of James Curry, Jr., James Curry and Rosie K. Welter were required, without saying why. In her reply brief, she said that the court allowed the jury to ignore the negligence of James Curry, Jr. and Sharon Curry in awarding damages against Mrs. Welter. Yet the jury was instructed to compare negligence and we are unable to say that there was any more reason for the court to require that this be done by special interrogatories in this case than in others involving comparative negligence.

We can only assume that appellant’s contention is based upon the objections registered in the trial court, even though appellant may have abandoned the contention that she is entitled to either indemnity or contribution from the parents. If she were, the failure to submit the interrogatories requested would have been a clear abuse of discretion. But we have found no basis for either contribution or indemnity in this case. Appellant was not entitled to contribution, because the parents were not joint tortfeasors with appellant under the Uniform Contribution Among Tortfeasors Act. Ark. Stat. Ann. § 34-1001 et seq (Repl. 1962). It seems to be well settled that there is no right to contribution under the act from one who is not liable in tort to the injured person. Ark. Stat. Ann. § 34-1001, 1002; Annot. 34 ALR 2d 1107 (1954). Before the statute comes into play, there must be a common liability to an injured party, and the injured party must have a possible remedy against both the party seeking contribution and the party from whom it is sought. Troutman v. Modlin, 353 F. 2d 382 (8 Cir., 1965); Cox v. Maddux, 255 F. S. Supp. 517 (D.C. Ark., 1966). See also, C & L Rural Elec. Coop. Corp. v. Kincaid, 221 Ark. 450, 256 S.W. 2d 337; Annot. 26 ALR 3d 1283 (1969). It is clear that these minor plaintiffs had no remedy against their parents. Rambo v. Rambo, 195 Ark. 832, 114 S.W. 2d 468; Woods, Family Torts in Automobile Cases, 13 Ark. L. Rev. 299 (1959).

Likewise, we have found no basis for indemnity. The right to indemnity, where one of the two parties is not liable to the injured party for the joint wrong, must be based upon a relationship other than that of joint tortfeasors. Jack Morgan Construction Co. v. Larkan, 254 Ark. 838, 496 S.W. 2d 431. See also Citizens Coach Co. v. Wright, 228 Ark. 1143, 313 S.W. 2d 94.

Appellant argues vehemently that she was entitled to a directed verdict, and we are sharply divided on the question. A majority of the court is of the opinion that there was substantial evidence that appellant, the driver of the motor vehicle that struck the minibike on which the children were riding, was guilty of negligence that was a proximate cause of the injuries of the children and that we cannot say that her negligence did not exceed the negligence of the children or that of the parents, as a matter of law. The question is a close one and a part of our difficulty arises from the fact that the Curry boy’s testimony was almost exclusively by affirmative and negative answers to leading questions on direct, as well as cross, examination. We are well aware of the reasons for permitting direct examination of children of tender years by leading questions, but we also know that such children are often able to relate incidents in which they are involved with some degree of clarity and sometimes more accurately and vividly than when simply giving affirmative and negative answers. Be that as it may, there is evidence tending to show that Mrs. Welter did not act as a reasonably careful person would under similar circumstances.

Ramsey’s Grocery is on the east side of Highway 95 on which Mrs. Welter was driving south. There is a county gravel road south of the grocery which intersects Highway 95, with a slight jog to the south, and continues west toward the Curry residence. It is the road taken to the grocery by the Curry children. As they prepared to enter the intersection for their return home, cars were parked west of the gas pumps and outside the canopy which extended from the front of the Ramsey Grocery to the gasoline pumps. One of them was a “panel truck” parked near the pavement on Highway 95. The Curry youth said he was south of these vehicles approaching the highway crossing from a point north of the county road and, when he was unable to see to the north beyond the panel truck, pulled the front tire of the minibike onto the paved highway, stopped, and saw the Welter car approaching from his right “kind of fast” but was unable to back .up and was struck almost immediately. Although he said that he only went about a foot on the pavement, the physical facts show that the minibike was further west than that on the paved highway when struck. Young Curry said that, when he first saw the Welter car, it started crossing over the highway toward him. He did not remember being struck.

In order to cross the highway from the point young Curry entered it, it would be necessary for him to cross at an angle to the south or his left. The investigating state trooper found skid marks made by the automobile commencing in the southbound traffic lane slightly north of a stop sign east of the highway and north of the county road governing traffic approaching the highway from the east. The skid marks veered to the east from the very beginning, and could be traced into the yard of the Kendrick home just south of the intersection and east of Highway 95, where the automobile came to rest, headed southeast by east at almost a right angle to its direction of travel with the totally destroyed Honda Bike and the little girl under it. The westernmost skid mark, or that made by the right wheel of the automobile, was unbroken on the pavement for a distance of 37 feet 8 inches. The easternmost skid mark, made by the left wheel of the Welter vehicle, was broken. The first segment was 26 feet long. After a skip it continued on the same arc for another 21 feet 9 inches. There was a gouge mark in the pavement at the end of the westernmost skid mark and about the middle of the second, or southernmost, portion of the easternmost skid mark. There was no debris left in the southbound traffic lane. There were no gouge marks in the southbound traffic lane. The gouge marks described by the investigating trooper commenced near the east edge of the pavement in the northbound traffic lane and continued to the edge of the pavement and into the area under the car where it came to rest.

Mrs. Welter testified that she had never travelled over 50 miles per hour on Highway 95 and that she slowed down a “tiny bit” as she approached the Ramsey Grocery because of the cars parked there. She said that when she first saw the minibike, it was right on the edge of the highway and she was in front of the store, and she could not tell whether it was stopped or moving, but that in a split second it came across the road in front of her.

It was not unreasonable for the jury to believe that Mrs. Welter approached the intersection at an excessive speed for the conditions then existing and that she did not maintain a proper lookout and control of her vehicle, particularly in view of the fact that it might be deduced from the physical facts that the minibike was struck near the edge of the pavement in the northbound traffic lane. It would be difficult to explain how this could have happened, if the vehicle were under proper control. To say the least, we cannot say that the Curry boy’s version of the incident is either physically impossible or inherently improbable.

Since we find error in the judgment in favor of James Curry, Jr., but not in that in favor of Jeanna Curry, we are faced with the difficult problem of disposing of the judgment in favor of their parents. The jury returned a verdict in their favor for $15,000 for their damages on account of the injuries to both children. They sought damages for the children’s medical bills, the loss of their services, and the mother’s care and nursing during their recovery. A review of the record reveals no means of ascertaining what part of this verdict was attributable to the injuries to James, Jr. and what part to Jeanna.

Our cases on the subject do not seem to reach the question of the effect of a reversal of a judgment in favor of a minor upon the judgment in favor of the parent. We have said that they are independent causes of action. See Ennis v. Brainerd, 240 Ark. 16, 397 S.W. 2d 809. Yet, we have analogized the situation of a parent and a child seeking to recover from an alleged tortfeasor to that where an injured party seeks recovery from an agent and principal in that a verdict in favor of the agent exonerates the principal, because the agent is the primary party and the principal is the secondary party, i.e., liability of the principal is based wholly upon negligence of the agent. Pigage v. Chism, 237 Ark. 873, 377 S.W. 2d 32. By this analogy, we held that an injured child could not claim advantage of inconsistent verdicts allowing his parents recovery but holding against him as to liability, saying that the minor was asking that the “tail wag the dog.” Although the defendant there was willing to accept the inconsistent verdicts, we said in dictum that the defendant could have complained, in which case, presumably, the dog would wag the tail, as we said that the verdict in the case of the primary party was the controlling verdict. This decision definitely puts us in the category of jurisdictions that recognize that the causes of action are independent but that the independent cause of action of the parents is for consequential damages, and secondary, and that of the child primary.

There is an analogy to the situation where husband and wife have causes of action against a tortfeasor for injuries to the wife. We have classified the husband’s cause of action for loss of consortium and for medical expenses as derivative and subject to the defense of comparative negligence of the wife, and to the bar of a judgment adverse to the wife on her cause of action, even though the causes of action may be prosecuted independently. Lopez v. Waldrum Estate, 249 Ark. 558, 460 S.W. 2d 61. Of course, the parents’ right of action is somewhat similar to that of the husband for personal injuries to his wife. 59 Am. Jur. 2d 211, Parent & Child, § 112.

From the above holdings, we definitely fall into that category of jurisdictions having the rule that a parent cannot recover on his cause of action unless the child can recover on his cause of action arising out of the same negligent act of the party against whom both seek recovery and that the child’s contributory negligence may be asserted against the parents, even though that negligence is not imputable to them. See Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 ALR 1206 (1934) (quoted with approval in Pigage, supra); Dudley v. Phillips, 218 Tenn. 648, 405 S.W. 2d 468, 21 ALR 3d 462 (1966); Callies v. Reliance Laundry Co., 188 Wisc. 376, 206 N.W. 198, 42 ALR 712 (1925); Fekete v. Schipler, 80 N.J. Super. 538, 194 A. 2d 361 (1963); Jones v. Schmidt, 349 Ill. App. 336, 110 N.E. 2d 688 (1953); Tidd v. Skinner, 225 N.Y. 422, 122 N.E. 247, 3 ALR 1145 (1919). See also, 67 CJS Parent and Child, §§ 41a, 45, 47, pp. 742, 748, 752; 59 Am. Jur. 2d 222, Parent & Child, § 121; Restatement, Law of Torts, § 703.

In spite of the fact that the errors which require reversal of the judgment against the son relate to damages only, on remand, a new trial on all issues, including that of the negligence of the boy as a proximate casue of the injuries is required. Because we cannot separate the damages awarded the parents for the injuries for the two children, we must set aside the judgment in favor of the parents in its entirety. See Clark v. Arkansas Democrat Co., 242 Ark. 497, 413 S.W. 2d 629.

The judgment in favor of James Curry, Jr. and the judgment in favor of James Curry and Sharon Kay Curry, as father and mother and next friends of James Curry, Jr. and Jeanna Curry, are reversed and the cause is remanded for a new trial as to these parties.

Mr. Justice George Rose Smith and Mr. Justice Byrd would reverse all judgments and dismiss the action.

      See 59 Am. Jur. 2d 212, Parent & Child, § 112; Shiels v. Audette, 119 Conn. 75, 174 A. 323, 94 ALR 1206 (1934), cited with approval in Pigage.


source: Caselaw Access Project

license: Public Domain

text:
    Jimmy Lee DYAS v. STATE of Arkansas
    CR 75-192
    539 S.W. 2d 251
    Opinion delivered July 19, 1976

      Appellant, Pro Se.

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

Appellant Jimmy Lee Dyas was convicted by a jury of capital felony murder for his part in the killing of Curtis Eugene Zachry, husband of.Carolyn Dianne Zachry, who has likewise been convicted of the murder in a separate trial and whose appeal has earlier come e Zachry v. State, 260 Ark. 97, 538 S.W. 2d 25 ceived a sentence of life imprisonment this conviction and sentence Dyas took

Folic court wit! court of Li? The motior supplemental! for reversal, nc sal. They are presented, the venience. We necessary to treat’ the testimony sum| f from this court reinvesting the trial appellant filed a motion in the circuit nty for new trial on 6 January 1976. ed and appellant has brought a 1 told, appellant offers fifteen points [h, we have concluded, merits reverin the order in which they were e being treated together for con[iew testimony except as it becomes points because it is very similar to Ü in Zachry v. State, supra.

1
The Court Erred in Admitting Into Evidence Statements Made By A Witness For The State, Before The Jury, Identifying The Source Of Two Rings Belonging To The Murder Victim, The Court And The State Being Well Aware That The Rings Had Been Turned Over To The Court And Law Enforcement Officials For The State By Appellant’s Defense Attorneys.
2
The Court Erred In Allowing The Prosecuting Attorney For The State To Comment Upon The Source Of The Two Rings Belonging To The Murder Victim In Violation of Appellant’s Attorney-Client Privilege.
3
The Court Erred In Admitting Into Evidence Statements Made By A Witness For The State Concerning The Alleged Source Of Two Rings Belonging To The Murder Victim, Because The Statements Constituted Hearsay.

The testimony upon which all of these points hang was given during the state’s redirect examination of Sgt. Carroll Page, who investigated the murder. However, the first mention of the rings was made by appellant’s principal attorney during his cross-examination of Page. It came about thus:

Q. (Cont’d by Mr. Boyd Tackett, Sr.) Do you know of anything that I have done during your investigation since the 9th day of the month, since the 9th day of January that wasn’t trying to cooperate with you and the other officers. Have I tried to keep anything from you?
A. You furnished some information. Some good and some--
Q. I even brought you the two rings taken off the dead man, didn’t I?
A. Yes, sir.
Q. MR. BOYD TACKETT, SR.: Judge, if this is wrong, you can tell me, and I will stop.
THE COURT: Yes, sir.

He pursued the line of questioning despite the fact the items mentioned were not in evidence and finally drew an objection from the state. The record follows:

Q. (Cont’d by Mr. Boyd Tackett, Sr.) All right, there is evidence here that there was a key ring taken off the dead body and there was two diamond rings taken off the dead body. They’ve been introduced.
MR. GEORGE STEEL, JR.: No, sir, they have not.
MR. BOYD TACKETT, SR.: They have not?
Q. (Cont’d by Mr. Boyd Tackett, Sr.) Well, anyway, before it gets to that, there’s testimony that there was a watch taken off the body. Have you ever, found the watch?
MR. GEORGE STEEL, JR.: Judge, I submit that this is not proper cross examination. We haven’t even gone into that yet,
THE COURT: He is making him his own witness, Mr. Steel. When he does that, he is bound by his answers.
MR. BOYD TACKETT, SR.: That’s right, I am bound by his answers.
THE COURT: All right.

On redirect examination, Sgt. Page testified without objection to an explanation allegedly given him by Tackett about how he came into possession of the rings.

Q, I show you two diamond rings, Officer Page, and I ask you, sir, are those the rings that Mr. Tackett refers to that he gave to you, sir?
A. Yes, sir.
Q. And have you in the course of your investigation determined that those rings belonged to the deceased, Eugene Zachry?
A. I have, sir.
Q. I believe Mr. Tackett has stated that he turned those rings over to you, is that correct, sir?
A. That is true.
Q. When he did that, Officer Page, where did he say he obtained them?
A. From Jimmy Dyas’ wife, Bunkie.
Q. Now, did he go any further than that, Officer Page? Did he say where she got them?
A. From a lock box — safety deposit box in the bank.
Q. Now, Sgt. Page, I ask you, sir, have you since that time attempted to determine of your own knowledge where the rings came from?
A. Yes, sir.
Q. Have you been able to determine anything different than what Mr. Tackett told you on the night he gave them to you?
A. I’ve been told a different story by Mr. Tackett — one or more different stories.

And, on recross-examination, appellant’s attorney sought to elicit a different version of their exchange, as follows:

Q. Now, Carroll, I want you to remember something real close. When you asked me where I got those rings, didn’t I tell you, “Carroll, I can’t tell you that.”
A. You did not, sir.
Q. I told you that I got them from Bunkie?
A. Yes, sir.
Q. Now, Carroll, don’t you know I didn’t tell you that?
A. Yes, you did, sir.
MR. GEORGE STEEL, JR.: Judge, if Mr. Tackett made Sgt. Page his witness for this purpose, I submit that he can’t cross examine him.
MR. BOYD TACKETT, SR.: I submit I am entitled to get on that witness stand and tell the truth.
THE COURT: Not at this time, Mr. Tackett.
MR. BOYD TACKETT, SR.: I know.
Q. (Cont’d by Mr. Boyd Tackett, Sr.) I gave you those rings, and when I handed you those rings, I was in the hall with J. O. Moore present, didn’t you ask me where those rings came from and I said, “Carroll, I can’t tell you, I represent three people.”
A. You told me this at Judge Steel’s house, sir.
Q. Well, I know that, but I didn’t tell you that at Judge Steel’s house. I told you that at the jailhouse, didn’t I?
A. No, sir.
Q. When I handed you those rings after I identified them through Dianne that those were Eugene’s rings, didn’t you turn around and say, “Boyd, where did you get those rings”? And I said, “Carroll, I can’t tell you”?
A. Actually, I received the rings at Judge Steel’s house and had them in my possession, handed them to you when we went into the jail and you showed them to Dianne and then you handed them back to me. I signed a receipt for them at Judge Steel’s house at which time you told me that you got them from Mrs. Dyas.

In support of his first point for reversal appellant seeks to analogize the case of State v. Olwell, 64 Wash. 2d 828, 394 P. 2d 681, 16 ALR 3d 1021 (1964), wherein the court decided that, where an attorney must and does surrender evidence to be used in the prosecution of his client, and the state attempts to introduce such evidence, it should take precautions to make certain the source of the evidence is not disclosed to the jury where it is within the protection of the attorney-client privilege. But, to be protected as a privileged communication, the court concluded, information or objects acquired must have been communicated or delivered to the attorney by his client and not merely obtained by the attorney while acting on behalf of his client, for if the evidence, in Olwell a knife, were obtained from a third person with whom there was no attorney-client relationship, the communication would not be privileged. Thus, according to Olwell, the privilege applies only to evidence if it is received by the attorney from his client and, if this is the case, the concern is that the immediate source of the evidence be held in confidence.

Page’s testimony indicated that Attorney Tackett’s source was not the appellant. Therefore, Olwell is readily distinguishable. But, even if the privilege is stretched to protect evidence given to a defendant’s attorney by defendant’s spouse, Olwell is still inapt. It was appellant’s attorney who opened the door to the examination of the witness about the source of the rings by his questions and disclosures during his cross-examination. See McDonald v. State, 165 Ark. 411, 264 S.W. 961; Smith v. State, 172 Ark. 156, 287 S.W. 1026. If there was any violation of the attorney-client privilege, it was by appellant’s attorney, who disclosed that he was the source of the rings by his questioning of Page, and who revealed to Page how he in turn had acquired them, if he made the statement attributed to him by Page.

Following the prosecutor’s objection that appellant’s attorney was exceeding the limits of cross-examination, appellant’s attorney agreed that he had made Page his own witness and would be bound by his answers. See, St. Louis, I.M. & S. Ry. Co. v. Raines, 90 Ark. 398, 119 S.W. 665. He did not object at any time during Page’s testimony on redirect examination. Rather, he chose to question the witness about that testimony and sought to elicit a retraction. And, in spite of the fact that Page had become his own witness on the matter of the rings, the court suffered him to attack Page’s redirect testimony, thus, in effect, permitting appellant to confront the witness and seek to undermine his credibility. We emphasize that the record discloses that the rings had not been introduced in evidence and their whereabouts had not been mentioned, prior to the examination of Page on the subject by appellant’s attorney.

Finally, appellant’s attorney expressed a wish to testify on the matter himself and raised an objection based on hearsay only the next day, as part of a motion for mistrial, after nine other witnesses had testified and Sgt. Page had twice been recalled to the witness stand. This was decidedly too late. Montgomery v. First National Bank of Newport, 246 Ark. 502, 439 S.W. 299. Denial of a motion to strike testimony of a witness is not an abuse of the trial court’s discretion, if no objection or motion is made until after other witnesses have testified. Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S.W. 2d 874. We find no error in the admission of the testimony of Sgt. Page.

Because it was appellant’s attorney who first mentioned the rings taken from the victim and revealed himself as the source, thus opening the door for testimony about them, it is doubtful that the matter remained in any respect privileged. Furthermore, appellant’s attorneys failed to make timely objection to any of the remarks of the prosecuting attorney they now insist are prejudicial. The issue cannot be raised for the first time on appeal. Payne v. State, 246 Ark. 430, 438 S.W. 2d 462; O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618. Therefore, we cannot say that the court erred in permitting, or that prejudice arose from, requests by the prosecution that it be allowed to examine witnesses who could corroborate Sgt. Page’s testimony regarding the conversation he had with appellant’s attorney at the time the rings were turned over. These requests were made in conjunction with the state’s timely objection to appellant’s attorney’s questioning of another witness, the wife of appellant, about the same transaction. At that time, appellant’s attorney expressed his willingness to agree to the examination of such witnesses if he, too, were allowed to testify. The court said that he would be permitted to do so only if he disqualified himself from further participation in the case. He did not disqualify himself. After Mr. Dyas had testified and near the close of defendant’s case, the trial judge advised Tackett that he would be permitted to testify. Thereafter, just before appellant’s case was rested, and before commencing rebuttal, the prosecuting attorney asked if Mr. Tackett was going to testify. Tackett’s partner assisting him in the trial responded, “No, sir, he is not at the request of his client.” The state’s attorney again mentioned its witnesses only after the close of testimony when a juror said he wanted to ask about the rings and appellant’s attorney indicated he didn’t mind if this case were reopened for this purpose. Nothing came of the request.

Appellant’s first, second and third points for reversal are without merit.

4
There Was Insufficient Evidence Upon Which To Base A Jury Verdict And Court Judgment Finding Appellant Guilty Of Capital Felony Murder.

Charles Bean’s testimony placed Dyas at negotiations regarding the murder at the Zachry home when the first attempt was made to lure Mr. Zachry out and murder him, at the scene of the crime, and in possession of a portion of a sum of money given to Bean by Mrs. Bessie Tolleson, mother of Carolyn Diane Zachry, as payment for the killing.

In his testimony about the actual killing, Charles Bean specifically mentioned that either he or appellant ordered Eugene Zachry to “turn out his pockets” as they intended to rob him. He also explained that he had Zachry remove his shoes and that appellant, as they returned from the scene of the crime, threw them into the creek from which they were later recovered. He also said that they robbed Zachry of all valuables and split the contents of his wallet. According to Albert C. Moore, who found Zachry’s body, Zachry’s pockets were turned out and his shoes were gone. Sheriff Surber and Sgt. Page both testified that there were no jewelry or valuables on the body when found, indicating that Zachry had been robbed. All of this enhanced the credibility of Bean’s testimony, since, if an accomplice is corroborated as to some particular fact or facts, the jury is authorized to infer that he speaks the truth as to all. Payne v. State, 246 Ark. 430, 438 S.W. 2d 462.

Of course, the testimony of an accomplice must be corroborated by other evidence tending to connect the defendant with the commission of the offense in order to support a capital felony murder conviction. Ark. Stat. Ann. § 43-2116 (Repl. 1964). The requisite corroborating evidence must be of a substantial character and, of itself and independently of the statement of the accomplice, tend to connect the defendant with the commission of the crime but it need not in itself be sufficient to support a conviction. Shipp v. State, 241 Ark. 120, 406 S.W. 2d 361.

Appellant admitted in his testimony that he accompanied Charles Bean during the murder. He said that he drove Bean to Zachry’s house and then drove them to the scene of the murder, which he witnessed. He acknowledged that a .38 caliber pistol which he was carrying in his car was used by Bean to administer the coup de grace to Zachry, after Bean had emptied his own gun. He vowed that he was unaware of Bean’s intentions, that he was an unwilling and unwitting companion, and that Bean threatened him in order to get him to cooperate. Yet, he admitted meeting Bean two days after the murder and giving him the .38 caliber pistol for disposal and later accepting two one hundred dollar bills from him, money which Bean had testified he received from Dianne Zachry’s mother in payment for the killing.

We have held in a somewhat similar case in which the defendant was accused of murder during the commission of a robbery that the testimony of the defendant in which he admitted that he was present at the crime, but denied participation in the homicide, was itself sufficient corroboration to satisfy the statute and support a conviction. Ark. Stat. Ann. § 43-2116. Ford v. State, 205 Ark. 706, 170 S.W. 2d 671. While corroborating evidence must do more than raise a suspicion of defendant’s guilt, it need not be direct, but may be circumstantial so long as it is substantial and tends to connect the defendant with commission of the offense. Jones v. State, 254 Ark. 769, 496 S.W. 2d 423. Presence of an accused in proximity to the crime, opportunity, association with persons involved in a manner suggesting joint participation and possession of instruments used in the commission of the offense are relevant factors in determining the sufficiency of corroboration by circumstantial evidence. Jackson v. State, 256 Ark. 406, 507 S.W. 2d 705. A witness, Raymond Cole, identified appellant as the person who accompanied Charles Bean and the driver of the car in which Bean arrived when, on the day of the murder, Bean borrowed the .22 caliber pistol used in the killing from George McClure. He also testified that Dyas was with Bean at the place and time McClure testified the pistol was returned. As noted already, appellant admitted that he had a .38 caliber pistol in his car on the night of the murder and that Bean had used it to make sure Zachry was dispatched. Dr. Rodney Carlton, the State Medical Examiner, testified at the trial that he found a .38 caliber bullet in the victim’s head. Loyse Zachry, the victim’s father, testified that he saw appellant and Bean at the Zachry residence on the afternoon preceding the murder. William Lumpkin testified that on the night appellant was arrested and placed in a cell with him, appellant had asked him to provide him with an alibi for the night of the murder. Lumpkin also told of an earlier trip with Bean and Dyas to look the Zachry house over, during which he said the conversation related its purpose to the killing of Zachry.

There was sufficient evidence and sufficient independent corroboration of the testimony of Charles Bean to support the conviction of appellant.

5
The Court Erred In Admitting Into Evidence, Over The Objection Of Appellant, Statements Made By One Alleged Co-conspirator, Charles Watson Bean, To Another Alleged Co-conspirator, Carolyn Dianne Zachry, And The Substance Of Statements Made By Carolyn Dianne Zachry To Charles Watson Bean, All In The Absence Of Appellant.

In his testimony, Charles Bean related that he had spoken by telephone with Carolyn Zachry in early December, 1974 to arrange a meeting, and that they later met and Bean offered to kill Eugene Zachry. Upon appellant’s objection, the trial court directed that Bean’s testimony be limited to what he had said in the conversation and not relate what Mrs. Zachry may have said to him. In testifying about his meeting with Mrs. Zachry, Bean said that she had indicated that she was in a hurry and wanted him to “do it” as soon as possible. Appellant’s attorney again objected to the admission of that which was said in the absence of the appellant. The objection was sustained and the court instructed the jury to disregard the information obtained by Bean from Mrs. Zachry.

Appellant argues that the conversation was inadmissible hearsay. We agree that anything said by Mrs. Zachry was, but Charles Bean’s own words were not, hearsay. The court limited his testimony in advance to this part of the conversation and properly admonished the jury to disregard the testimony about what Mrs. Zachry indicated. Any error was cured by prompt action and appellant was not manifestly prejudiced. Moore v. State, 251 Ark. 436, 472 S.W. 2d 940. Appellant did not move for a mistrial.

Appellant also suggests that the testimony was improper because appellant had not yet become involved in the conspiracy and the state had not yet established a prima facie case of conspiracy against appellant. He concedes, however, that evidence of previous acts of co-conspirators may be admissible against a defendant once a prima facie case of conspiracy has been proved and the nature and objectives of the conspiracy shown by the state. Willis v. State, 67 Ark. 234, 54 S.W. 211. We have held that it is within the discretion of the trial court to permit the statement of an alleged conspirator to be introduced in a prosecution of a fellow conspirator before evidence tending to prove the conspiracy has been introduced. Easter v. State, 96 Ark. 629, 132 S.W. 924. Here, as in Easter, it was later in the testimony of the same witness that the evidence tending to establish the conspiracy was introduced and it was a matter within the sound judicial discretion of the court to control the order in which the testimony should be adduced. Easter v. State, supra. After the trial judge had permitted Bean to state what he had said to Mrs. Zachry, over appellant’s objection that Mrs. Zachry was not on trial, Bean testified that he had met with Mrs. Zachry immediately after the telephone call, told her that he had been told that she wanted her husband done away with, thought he could arrange it if they could get together on the price, that they did agree on it, and he told her that he was relatively sure Monroe Lindsey would not do the job, and that he was alone that day, but did not intend to do the job alone. No objection was made to any of this testimony. It was when appellant testified that he told Mrs. Zachry that he would have to have a few days to get things lined up and that she was in a hurry to get it done and wanted him to do it as soon as possible, that appellant first objected to what was said in his absence. The trial court then admonished the jury to completely disregard information Bean obtained from Mrs. Zachry. Appellant made no further objection, asked no further admonition and did not move for a mistrial. Bean then proceeded, without any objection being made, to relate that he made several trips to Ashdown to meet with Mrs. Zachry and that Dyas was present on some of the occasions. No objection was made to this testimony. We find no error in the admission of Bean’s testimony, insofar as objections made are concerned.

6
The Court Erred In Admitting Into Evidence, Over The Objection Of Appellant, Statements Made By Witnesses For The State, Concerning Financial Arrangements Made By Alleged Co-conspirator, Carolyn Dianne Zachry, In The Absence Of Appellant.

The state called and examined two witnesses who testified about financial transactions carried out by Carolyn Dianne Zachry. In response to appellant’s first objection that he had not been present when these transactions took place, the state answered that the testimony was offered to establish the motive and the court permitted the testimony. Mr. Bill Brown, president of the Bank of Ashdown, said that Carolyn Dianne Zachry had executed two promissory notes, and that he had made two loans to her before and after the killing. The first was in the amount of $2,000 on 29 October 1974. Admittedly the transaction predated appellant’s involvement in the conspiracy under any view of the evidence. Bean testified that it was in December that he proposed that Dyas join him in the murder scheme and Dyas agreed to participate. However, it is significant that Bean made a promise of money to interest Dyas in the scheme.

Bean said he approached Dyas by inquiring whether Dyas would be interested in helping Bean do something in which quite a bit of money, approximately $5,000, was involved, on a fifty-fifty basis, and that Dyas agreed that he would. Thereafter, according to Bean, Dyas became involved in negotiations with Mrs. Zachry when she decided that she would not be able to pay until after the commission of the crime, and the price was doubled. Bean said that this agreement was reached in December and that he met and talked with Dyas about the murder of Zachry on other occasions. He said that after he and Dyas had decided to do this together, they came to Ashdown on numerous occasions and, when a money problem arose, Dyas was with him when he met Mrs. Zachry at a carwash on the New Boston road in Texarkana. Bean could not recall whether Dyas had first seen Mrs. Zachry on this occasion or on the occasion of a meeting at a Piggly Wiggly store, but said that he believed that, at the meeting at the carwash, Mrs. Zachry had been unable to come up with the money to pay them $5,000 so it was agreed that they would wait until after the killing for the money, but that the price would be $10,000. He said that Dyas was present when the matter was discussed with Mrs. Zachry.

Mr. Brown testified that the second loan in the amount of $1,500 was made on 16 January 1975, eight days after the killing, and certainly after Dyas is alleged to have joined the conspiracy. There was no error in the admission of this evidence of the latter transaction by him as co-conspirator. Easter v. State, supra.

The second witness, Miss Mary Lou Moore, manager of the Ashdown branch of First Federal Savings and Loan, testified about a certificate of deposit issued to and two withdrawals made by Carolyn Dianne Zachry on 29 October 1974. Like the first transaction testified to by Mr. Brown, this transaction admittedly came before any involvement by appellant in the conspiracy. In light of the fact that money was the only inducement and motive for Bean’s and Dyas’ involvement in the murder, this testimony certainly cannot be said to have been irrelevant as appellant contends, particularly when viewed in the light of other testimony of Bean regarding his receipt of money from Carolyn Dianne Zachry and her mother. Furthermore, previous acts of a co-conspirator may be admissible against a defendant once a prima facie case of conspiracy is proved when such acts show the nature and objectives of the conspiracy. United States v. Morton, 483 F. 2d 573 (8th Cir., 1973). Although we have said that the acts and declarations of any conspirator, in furtherance of a common enterprise, are admissible against any or all of the others, such acts or declarations must be done or said while the conspiracy is in progress and not before it has begun. Willis v. State, supra. Still, we cannot say that the testimony about the transactions was devoid of probative value in the establishment of the state’s case of a contract murder and conspiracy. Bean’s testimony would show that Dyas entered into an ongoing conspiracy and would tend to explain the connection and joint action of the parties in the premises. See, Lesieurs v. State, 170 Ark. 560, 280 S.W. 9. In the light of this testimony and other strong independent evidence of appellant’s guilt, we cannot say that there was reversible error in the admission of any of the testimony to which objection was made.

7
The Court Erred In Admitting Into Evidence, Over The Objection Of Appellant, Statements Made By Witnesses For The State, Concerning Life Insurance Policies Taken Out By The Murder Victim, In The Absence Of Appellant, And Remote In Time.

Testimony by James E. Cobb and Wetzell Ward showed that Eugene Zachry had in the past purchased three policies of insurance on his life and that these were still in force at the time of his death. Appellant argues that their testimony was irrelevant and constituted hearsay.

Appellant does not demonstrate why the testimony about the issuance of the policies should be regarded as hearsay. In both cases the witnesses themselves had sold the policies about which they testified to Zachry. We find no error in this respect in admitting the testimony.

The testimony was relevant as it related to the motive underlying the conspiracy and murder. It was probative as to the motivation of Carolyn Dianne Zachry, appellant’s co-conspirator. We have already discussed the evidence which showed that Bean originally contracted with Mrs. Zachry to do the killing for $5,000 and that he used a promise of big money to interest appellant in the crime. The testimony objected to was perhaps most relevant to the negotiations that took place between Mrs. Zachry and the killers after Dyas had joined the conspiracy and Mrs. Zachry decided that she was unable to pay in advance. The new agreement called for $10,000 payable after the murder, according to Bean. It might reasonably be inferred that there was a relevant connection between the existence of these policies and Mrs. Zachry’s ability to pay twice as much after the death of her husband than the original contract had stipulated. Appellant’s point is without merit.

8
The Court Erred In Admitting Into Evidence Radio Logs And Statements Concerning Radio Logs Maintained By The City Of Ashdown, Arkansas, Over The Objection Of Appellant That Said Logs And The Testimony Of Witnesses Concerning The Logs Constituted Hearsay.

The logs about which appellant complains were made on the evening of 28 December 1974 by the dispatcher for the Ashdown City Police Department, Betty Davis, on the basis of whose testimony they were admitted into evidence. This was the evening, according to Charles Bean, on which Dyas had accompanied Bean to the Zachry residence and attempted to persuade Eugene Zachry to admit them to the house by telling him that there had been a wreck down the road and asking to use his phone. Bean said that Zachry spoke to them through a window, refused them admittance and said he would phone himself. The telephone log showed that a wreck had been falsely reported at 11:15 p.m. on the evening of the 28th. The log next showed that some thirty-five minutes later Eugene Zachry telephoned and said that he was the one who had made the earlier call reporting the wreck. The log contained a physical description of a man Zachry said had come to his door requesting to use the phone to report the wreck and noted that Zachry had opined that the person had “just wanted to get into the house.” W. D. Webster, Chief of Police for Ashdown, testified that he was the custodian of the records of the police department, including the telephone logs. He identified the logs as official records of the City of Ashdown and stated that they were kept in the due course of business. Upon appellant’s objection, the court held an in-chambers hearing to decide the admissibility of the logs where it was adduced that Webster had kept the logs for four years, that they were always accurate, never altered and checked daily. After the hearing in camera, Webster identified the log. When he was asked to read the item pertaining to Zachry’s call, the circuit judge interjected, and, out of the hearing of the jury,- indicated that it should not be read to the jury until it had been substantiated by the dispatcher who recorded it. The judge then stated in open court that the record would not be read at that time to the jury. The record was then marked for identification and the court and appellant’s attorney agreed that this was done with the limitation that it be substantiated and that it was not for the purpose of establishing the truth of the matter but that it was introduced only for establishing the fact that it was the official record. The prosecuting attorney then stated that he had no further question and that he didn’t suppose there would be any cross-examination of the witness, but appellant’s attorney, Moore, stated that he would like to cross-examine and was permitted to do so. The cross-examiner then proceeded to read the item and Webster confirmed his reading, in spite of the prosecuting attorney’s protest that he didn’t want appellant’s attorney to read the log and then object to it. The cross-examining attorney then established by the testimony of Chief Webster that the description given by Zachry could fit numerous persons, including the attorney himself. He further emphasized through this examination the absence of any limp by the person described. This was pertinent because other testimony had established that one of Dyas’ legs was shorter than the other and indicated that he walked with a decided limp. The logs were thereafter admitted into evidence under the exception to the hearsay rule for records made in the regular course of business, during the testimony of the dispatcher. Ark. Stat. Ann. § 28-928 (Repl. 1962) permits the introduction into evidence of records made in the regular course of business, the entries having been made to record “any act, transaction, occurrence or event, if made in the regular course of business. ” There was sufficient evidence in the record to meet the requirements of the statute to show that the records were regularly kept and made within a reasonable time after the event recorded. Harrison v. State Farm Mutual Ins. Co., 230 Ark. 630, 326 S.W. 2d 803. Therefore, we find no error in the court’s admission of the logs as they reflected that the two calls were received on the evening in question from Zachry, the nature of the report given by Zachry and the fact that the police investigated and found the report to be false. These were the sort of “transactions” the statute contemplates. No objection was made to the reading of the log by the prosecuting attorney after it had been authenticated by the testimony of the dispatcher as to accuracy. The prosecuting attorney then asked permission to pass the log to the jury but, before doing so, remarked that someone had indicated the pertinent part by marking it with blue ink, and inquired whether there were any objections to this mark and received a negative response from appellant’s chief counsel. Thereafter, one of appellant’s attorneys established by cross-examination of the witness that she knew Eugene Zachry and recognized his voice when he called, that Zachry didn’t describe any limp or other physical characteristics of the person who came to the window, that she knew Dyas, and would describe him as walking with a limp.

Appellant is in no position to complain about the admissibility of Zachry’s description of the person who came to the Zachry house and Zachry’s opinion, because appellant’s attorneys brought out the most damaging part of it, insofar as Dyas was concerned, apparently in an effort to emphasize through the state’s witnesses the generality of the description and the lack of mention of what seems to have been Dyas’ most obvious physical characteristic. At any rate, no further objection was made after the cross-examination of Webster and no request was ever made to limit the record evidence to that which was admissible under the Business Records Act.

9
The Court Erred In Admitting Into Evidence A .22 Caliber Revolver Allegedly Belonging To Appellant, Said Revolver Being Immaterial To The Facts And Matters In Issue And Being Inherently Prejudicial To Appellant And In Violation Of His Constitutional Rights. ......

The pistol to which appellant refers was not listed on the search warrant used for a search of appellant’s house during the investigation of the murder. But it was taken from appellant’s automobile at the time of the search. The state points out that appellant’s attorney, J. O. Moore, first elicited testimony about a pistol owned by appellant other than the .38 caliber one used in the crime during his second cross-examination of Charles Bean. Bean was unable to describe the pistol accurately and so on redirect the prosecutor showed the .22 pistol *o Bean who was still unable to identify it as the one he had seen. When the pistol was finally offered into evidence, appellant admittedly interposed no objection. Not having objected during the trial, appellant cannot complain for the first time on appeal.

We do not agree, as appellant has asserted, that this is the sort of plain or fundamental error which renders an objection unnecessary. Furthermore, appellant would be hard pressed to argue that the admission of the pistol prejudiced him in light of his own testimony that he had the pistol with him in the console of his car on the night of the murder and yet did not use it to try and prevent the killing.

10
Appellant Jimmy Lee Dyas Personally Insists That The Court Erred In Trying His Case Because Of The Relationship Between The Trial Judge And The Prosecuting Attorney.

Not only did appellant fail to object to Judge Steel’s hearing of the case or request that he disqualify himself, but his brief reveals that his attorneys declined to accept Judge Steel’s offer to disqualify himself prior to the trial. Appellant argues only that his attorneys should have consulted him before assenting to Judge Steel’s continued handling of the case. The actual record is deficient on this point and appellant’s complaint is too late and cannot be raised for the first time on appeal. We note that the identical surnames of the judge and the prosecuting attorney were obviously known.

11
SUPPLEMENTAL ABSTRACT — CHARLES WATSON BEAN SENTENCING ACTIVITIES: The Court Erred In Refusing To Entertain Appellant’s Motion For A New Trial, In Obedience To A Supreme Court Order; And Misinterpreting The True Entitlements Of Appellant To The Sentencing Activities Of Charles Watson Bean.

The majority relies upon its reasoning and maintains the same conclusions it reached on the same issue in Zachry v. State, 260 Ark. 97, 538 S.W. 2d 25 (1976), although the writer adheres to the same views he expressed in his concurrence in Zachry v. State, supra.

12
The Arkansas criminal statutes upon which appellant Jimmie Lee Dyas was convicted and sentenced to life imprisonment Ark. Stat. Ann. § 41-4702 (A) 4711 and 2205 there committing him without the privilege of a parole, are unconstitutional, in that they abridge the constitution of the United States and the state of Arkansas, they violate appellant’s Eighth-amendment assurances — nor shall cruel and unusual punishment be inflicted.

We have already specifically determined that Ark. Stat. Ann. § 41-4702 (Supp. 1975) is not violative of the Arkansas Constitution. Rogers v. State, 257 Ark. 144, 515 S.W. 2d 79.

Appellant does no more than offer the flat assertion that a sentence of life imprisonment without parole is violative of Amend. VIII of the United States Constitution. We do not consider a life sentence cruel or unusual in the light of pertinent standards. See, Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800 (1976). If a sentence is, as here, within the limits established by the legislature, it is valid against the insistence that the punishment is unconstitutionally excessive. Rogers v. State, supra; Smith v. U.S., 407 F. 2d 356, cert. den. 395 U.S. 966 (8th Cir., 1968). His contention that his accomplice Bean’s receipt of a lesser sentence somehow entitles him to relief is without merit. See Thornton v. State, 243 Ark. 829, 422 S.W. 2d 852.

Appellant does not show how he was denied assistance of counsel. He seems to weave into his argument on this point, the same argument made about a recording device in Zachry v. State, supra. The record here gives less support to the argument than it did in Zachry. His suggestion that he was denied assistance of counsel is without merit.

13
The court erred when failing to bring the charges before a grand jury the state failed to provide equal protection by such failure in that the state had no proof that would cause the jury to return an indictment and didn’t have until co-defendant Charles Watson Bean was Bribed thus there was a definite of probable cause initially.

We have long recognized that a criminal defendant may be properly charged either by indictment or information. Ark. Stat. Ann. Const. Amend. 21; Ark. Stat. Ann. § 43-806 (Repl. 1964); Davis v. State, 246 Ark. 838, 440 S.W. 2d 244, cert. den. 403 U.S. 954 (1971); Ellingberg v. State, 254 Ark. 199, 492 S.W. 2d 904.

14
The State failed to provide equal protection when making a show of the trial a sham by not moving the trial to another county the court erred in permitting a public expose of economical and political enhancement to the prosecuting attorney.

Appellant neither moved for a change of venue nor raised any timely objection based on the assertions he makes in this point. His attempt to raise these issues on appeal is too late and cannot be considered.

15
The Court erred and the state failed to provide appellant Jimmie Lee Dyas equal protection when allowing evidence obtained by illegal search and seizure to be introduced.

No objection was raised in the trial court either as to the validity of the search of appellant’s automobile or the introduction of a .25 caliber pistol which was found in a pawn shop. The .38 caliber pistol listed in the search warrant was never recovered or introduced into evidence. We will not consider appellant’s objections for the first time on appeal.

We have examined the record and have considered all other objections raised therein and found none that merit consideration.

The judgment is affirmed.

      Appellant’s wife later took the witness stand as a witness for appellant and, without any claim of privilege, testified that she had never seen the rings until Tackett showed them to her when she was in the automobile with the Tackett law firm on the way to Judge Steel’s residence where the rings were surrendered by Tackett.