author: Tom Glaze, Justice.

text:
    SHELTER MUTUAL INSURANCE COMPANY v. Alice M. TUCKER
    87-217
    748 S.W.2d 136
    Supreme Court of Arkansas
    Opinion delivered April 18, 1988

      Goodwin, Hamilton & Moore, for appellant.

      Branch, Thompson & Philhours, for appellee.
   Tom Glaze, Justice.

Appellee was in her automobile when she was struck from behind by another car driven by an uninsured motorist, Sheila Smith. Appellee, having uninsured motorist coverage with the appellant insurance company, subsequently filed suit against both Smith and the appellant. At trial, appellee received a jury verdict of $25,000.00, the maximum amount due under her policy, plus $9,979.70 in medical expenses. The court further awarded appellee a 12 % penalty plus attorney’s fee in the sum of $ 12,500.00. Appellant raises four issues on appeal, but we find that none warrant a reversal. Therefore, we affirm.

Appellant first argues the trial court erred in granting appellee’s motion in limine thereby excluding evidence that appellee was not wearing her seat belt at the time of the collision. Such evidence was developed at the pre-trial evidentiary deposition of Dr. George Wood. Dr. Wood testified that the appellee reported she was not wearing her seat belt at the time of the accident, and when hit by Smith’s car, she was thrown against the dashboard, which resulted in complaints by her of back and neck pain.

Pertinent to the point argued here, appellant refers to and emphasizes the following testimony given by Dr. Wood which was proffered but excluded at trial:

Q: Based on the report of the manner of the sustaining of the injury and her report to you and her history that she had not worn a seat belt, in your opinion, did the failure to wear the seat belt result in more severe physical injuries or trauma than would have happened if she had been wearing her seat belt?
A: The absence of a seat belt makes her more of a free object and can result in other injuries. It probably makes no difference as far as the neck is concerned because that’s never restrained by the seat belt. For the lower portion of the body, it does make it more prone to be thrown about.
* * *
Q: Is it a fair statement to say that testimony in that regard is sheer speculation and conjecture relative to what injuries she may or may not have received?
A: To specifically say what would happen if she was wearing a seat belt would be extremely hard to imagine. As I mentioned before with regard to the neck, the seat belt probably had no effect. With regard to the back, it may have had an effect, and then again it may not. With this problem, relatively minor trauma can excite it; and minor trauma can occur within the confines of a seat belt.
Q: Let me rephrase my question because of the objection. Would you have to resort to speculation and conjecture to testify relative to an increase or decrease in this injury when you factor in a seat belt?
A: Yes.

Immediately before the above testimony, Dr. Wood opined that the spinal stenosis he found in appellee’s low back or lumbar region was not caused by the automobile accident. Relying on Wood’s testimony, as well as statements made by this court in Harlan v. Curbo, 250 Ark. 610, 446 S.W.2d 459 (1971), appellant contends that appellee’s nonuse of her seat belt was evidence of comparative negligence and admissible as such. Alternatively, appellant asserts such evidence should be admissible on the issue of mitigation of damages. Even if appellant’s legal arguments concerning the nonuse of seat belts had merit, we need not reach them since they cannot be supported by the speculative nature of the proffered testimony given by Dr. Wood.

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. A.R.E. Rule 401. The trial court has discretion in ruling on the relevance of evidence and will not be reversed in the absence of an abuse of discretion. See, e.g., Jim Halsey Co. v. Bonar, 284 Ark. 461, 683 S.W.2d 898 (1985). In the instant case, the relevance, if any, of Wood’s testimony would be to connect appellee’s nonuse of her seat belt with the injuries she sustained. Concerning this issue, his testimony is nothing but confusing; he even conceded that he would have to resort to speculation and conjecture to testify relative to the increase or decrease in appellee’s injury when “you factor in a seat belt.”

In its second point for reversal, appellant alleges the trial court erred in failing to direct a verdict on the issue of medical expenses. Citing the case of Henry and Aclin Ford v. Landreth, 254 Ark. 483, 494 S.W.2d 114 (1973), appellant claims the appellee improperly introduced medical bills into evidence without proof that they were reasonable or that the bills were incurred as a result of the accident.

As we pointed out in Bell v. Stafford, 284 Ark. 196, 680 S.W.2d 700 (1984), a party seeking to recover medical expenses in a personal injury case has the burden of proving both reasonableness and necessity of those expenses. However, expert medical testimony is not essential in every case to prove the reasonableness and necessity of medical expenses. Id. We added further in Bell that the testimony of the injured party alone, in some cases, can provide a sufficient foundation for the introduction of medical expenses incurred. Id. at 199 and 680 S.W.2d at 702; see also Eggleston v. Ellis, 291 Ark. 317, 724 S.W.2d 462 (1987). We have also held that, while not controlling, evidence of expense incurred is some evidence of reasonableness. Blissett v. Frisby, 249 Ark. 235, 458 S.W.2d 735 (1970).

In the cases cited above, the issue on appeal was the admissibility of medical bills and whether the plaintiff laid a sufficient foundation to establish a casual relationship between the accident and those medical expenses claimed by the plaintiff. Here, appellee identified all of the medical bills introduced at trial as having been incurred as a result of her back injury. Appellant offered no objection to the bills or appellee’s testimony concerning them.

Although Dr. Wood was not requested to identify or justify the causal nature or reasonableness of appellee’s medical bills, his testimony does support the legitimacy of many of those bills. For example, on August 27,1984, he admitted the appellee into the hospital for testing and routine laboratory studies and did not discharge her until September 8, 1984. While appellant contends on appeal that the testimony of appellee’s doctor reflects she was a hypochondriac and exaggerated her complaints, appellant did not question below the admissibility of the medical expenses presented by the appellee on these or any other grounds. In addition, it is settled law that the trial judge has discretion in deciding whether a witness has laid a sufficient foundation to testify about reasonableness and causal relationship. Even if the trial judge had been called on to rule on the admissibility of appellee’s medical expenses, we believe, given the record before us, the judge would have been well within his discretion to have admitted the medical bills into evidence.

For its third asserted error, appellant claims the trial court erred in allowing appellee to introduce the deposition of Dr. Larry E. Mahon. Appellant asserts that it objected below to the deposition’s introduction by stating that none of the conditions prescribed in ARCP Rule 32(a)(3) governing the use of depositions in court had been met by the appellee. Appellee, on the other hand, argues that, in preparation for trial, the appellant decided that it needed to take Dr. Mahon’s “evidentiary deposition” for use at trial and that the parties had waived any restrictions posed under Rule 32. Appellee also suggests that since the appellant had instituted the taking of Mahon’s “evidentiary deposition” and was represented when the doctor’s testimony was given, Rule 32(a)(1) permitted the deposition’s introduction. In overruling the appellant’s objection, the trial judge’s ruling was broadly stated as follows:

I think anything that you take in a deposition, discovery or evidentiary purposes, of a witness having knowledge or information regarding the subject matter of the trial, and particularly as in this case he is an expert witness, develop and then take the deposition of that expert witness and then for any reason decide it is not beneficial or to your advantage to use that witness, then the opposing party has a right at that time to call that witness.

While we agree that the trial judge was correct in overruling the appellant’s objections, we cannot agree with his reasoning since the rationale he gave conflicts with the restrictions and dictates of Rule 32. That rule in pertinent part provides:

(a) Use of depositions. At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions:
(1) Any deposition may be used by any party for the purpose of contradicting or impeaching the testimony of deponent as a witness or for any other purpose permitted by the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1000.
* * *
(3) The deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds: (A) that the witness is dead; or (B) that the witness is at a greater distance than 100 miles from the place of trial or hearing, or is out of this state, unless it appears that the absence of a witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment; or (D) the party offering the deposition has been unable to procure the attendance of the witness by subpoena; or (E) upon application and notice, that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.

Rule 32 is essentially the same as Fed. R. Civ. P. 32, which has been construed to point out that any party, not only the party who took the deposition, may use the deposition of a witness, whether or not a party, for any purpose at the trial or hearing, if the party demonstrates to the court the existence of one of the conditions specified in Rule 32(a)(3). See 4A Moore’s Federal Practice ¶ 32.05 (1987). In the instant case, it is undisputed that none of the conditions set out in Rule 32(a)(3) were present to justify the use of Dr. Mahon’s deposition at trial. Nor, as is permitted under Rule 32(a)(1), was Mahon’s deposition offered at trial for the purpose of contradicting or impeaching his testimony as a witness; he never appeared at trial as a witness for either party. In sum, the appellant’s use of Dr. Mahon’s deposition does not fit any of the purposes set out in Rule 32(a), and if the trial court’s ruling is to be sustained, it must be done based on other reasoning.

We have carefully reviewed the record, and the conclusion is inescapable that counsel for appellant and appellee determined they needed to obtain an “evidentiary deposition” of both Dr. Mahon and Dr. George Wood. Appellee’s counsel states that, by stipulation and agreement of the parties, the doctors’ depositions were evidentiary and taken to be utilized as evidence in the case. Appellant’s counsel was less certain about such an agreement as to Dr. Mahon’s deposition, saying “[T]here may be somewhere, but I don’t recall any discussions specifically as to whether it would be evidentiary or by way of discovery.” He added that such a decision or agreement may have been reached with regard to Dr. Wood’s deposition, which had been taken at appellee’s expense. In fact, appellant’s main concern at trial, when arguing that appellee should be prohibited from introducing Mahon’s deposition as a part of her case, was that appellee was required to reimburse the appellant its expenses for having been the party that took Mahon’s deposition. Without such a reimbursement and agreement to use the deposition, appellant argued appellee could not use it at trial.

Our examination of the record reflects that both parties took Wood’s and Mahon’s depositions with the view that both depositions would be presented to the jury when this cause was tried. Both counsel directed their questions to the jury when inquiring of the doctors at the time their depositions were taken. Each attorney was careful to pose questions to, and amplify on answers given by, the doctors so the jury would understand their deposition testimony. In this respect, appellant’s counsel (as did appellee’s) repeatedly asked each doctor to explain to the jury the medical terms and remarks that were a part of the doctors’ testimonies. We also note that throughout both doctors’ depositions, the parties’ counsel interposed objections, including those to leading questions, which were reserved to be ruled on at trial.

At trial, appellant offered no objection to the introduction of Wood’s deposition, obviously because appellant relied on that deposition in presenting its case below. Appellant later in the proceeding, objected to the admission of Mahon’s deposition, but even then, appellant indicated that it still might use Mahon’s deposition when presenting its defense. As to this last point, surely if Rule 32 precluded the appellee’s use of Mahon’s deposition at trial, those same proscriptions in the Rule would apply to the appellant’s use of it.

Rule 32(b) provides that an objection may be made at the trial or hearing to receiving into evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness was then present and testifying. Nonetheless, that Rule does not prohibit the parties to agree, as the record reflects the parties — either expressly or impliedly — did here, to use depositions, thereby waiving those conditions or restrictions set forth in Rule 32(a). Because the record before us so clearly reflects that the parties took both doctors’ depositions with the intent that the testimony would be introduced and read to the jury, we affirm the trial court’s ruling allowing those depositions into evidence.

Appellant contends in its final point that the trial court erred in awarding a judgment for $34,979.20 to the appellee when the jury found that appellee’s total damages were only $25,000.00. Again; we find the appellant’s argument to be without merit.

In her policy with the appellant, appellee paid a premium and had coverage for both uninsured motorist damages in the amount of $25,000.00 per person and medical payments to the extent of $10,000.00 per person. Appellee’s medical payment provision stated that an insured shall not recover duplicate benefits for the same elements of loss under this or any similar insurance. After finding that the uninsured motorist’s negligence was the proximate cause of the accident, the jury, in interrogatory number two, set the amount of appellee’s damages, resulting from the occurrence, at $25,000.00. In a third interrogatory, the jury was asked whether the appellee incurred reasonable medical expenses for bodily injuries within twenty-four months of the occurrence. In answering that question in the affirmative, the jury found in a fourth interrogatory that the amount of medical expenses was $9,979.20. The jury had been instructed by the trial judge to treat each interrogatory as a separate verdict.

In reviewing the jury’s finding to each interrogatory, we cannot say that the jury granted recovery for the same elements of loss or that the total damages that could be awarded was $25,000.00. Specifically, neither the interrogatories submitted (without objection) to the jury, nor the jury’s answers to those interrogatories, reflect that the medical expenses were in any way included in or a part of the $25,000.00 amount awarded under appellee’s uninsured motorist coverage. Consistent with the terms of the interrogatories given the jury, the jury was justified in awarding damages of $25,000.00 plus medical expenses of $9,979.20, and was not, as suggested by the appellant, limited to the $25,000.00 amount set out in the uninsured motorist provision.

In the alternative, the appellant contends that the trial court should have allowed it to set oif the damages due under the medical payment provisions by the amount paid under the uninsured motorist coverage. This court has held that an insurance company is prohibited from setting off one payment under its policy against another one under the same policy. State Farm Mut. Auto. Ins. Co. v. Sims, 288 Ark. 541, 708 S.W.2d 72 (1986). We have recognized that the right of reimbursement and credit is allowed pursuant to Ark. Code Ann. § 23-89-207 (1987) in a situation where there are payments from more than one source. Id. That is not the case here.

Because we find no merit in the appellant’s points of error, we affirm.

       While we recognize it may be customary for some members of the Bar to use the designation “evidentiary deposition,” such designation is found nowhere in the Arkansas Rules of Civil Procedure, and the mere reference to a deposition as being evidentiary is no reason, in itself, for a deposition to be introduced at trial.


source: Caselaw Access Project

author: Jack Holt, Jr., Chief Justice. John I. Purtle, Justice,

license: Public Domain

text:
    Thomas MUELLER, et al. v. Radcliffe KILLAM, et al.
    87-296
    748 S.W.2d 141
    Supreme Court of Arkansas
    Opinion delivered April 25, 1988

      Warner and Smith, by: P.K. Holmes III, for appellant Thomas C. Mueller.

      Peel, Eddy and Gibbons, by; David L. Eddy, for appellants Adrienne Gans Simon; Ottilie Graves a/k/a Gypsy Cosden Graves; Joshua S. Cosden, Jr., a/k/a Joshua Seney Cosden, Jr., and Barbara B. Cosden, his wife; Helen Elizabeth Lockwood; Joshua Stanley Cosden, Jr.; Marjorie Cosden Annan; Ottilie McPherson; Josephine Rider; and Frances Moley.

      Hardin, Jesson & Dawson, by; Bradley D. Jesson, for appellants Texas Oil & Gas Corp. and TXO Production Corp.

      Pryor, Barry, Smith & Karber, by: John D. Alford, for appellees.
   Jack Holt, Jr., Chief Justice.

The appellees, Radcliffe Killam, et al., filed a complaint against the appellants, Thomas Mueller, et al., praying that title to certain mineral interests be confirmed in the appellees, that certain oil and gas leases, along with any assignments or other conveyances of the appellants be set aside, for an accounting for all oil, gas, or other minerals produced by the appellants on the mineral acres, and for damages for trespass. The trial court found that the appellees were owners of the mineral acres and that appellants Mueller and Texas Oil and Gas Corporation had trespassed upon the mineral interests of the appellees. Pursuant to an agreement of the parties to bifurcate the issue of damages from the issue of liability, the court retained jurisdiction of the case for the purposes of determining damages as a result of the trespass and for hearing the cross-complaint of appellants Mueller and Texas Oil and Gas Corporation against the “Cosden Group” appellants. The decree specified that “ [t] his order shall constitute a final appealable order of the Court. . . .” We hold to the contrary and dismiss this appeal because the decree was not one from which an appeal may be taken under Ark. R. App. P. 2 and Ark. R. Civ. P. 54(b).

Ark. R. App. P. 2 provides in pertinent part:

(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the trial court;
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action.

Ark. R. Civ. P. 54(b) provides:

When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.

Whether a final judgment, decree, or order exists is a jurisdictional issue which we have a duty to raise, even if the parties do not, in order to avoid piecemeal litigation. Sevenprop Assoc. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988); Kilgore v. Viner, 293 Ark. 187, 736 S.W.2d 1 (1987); Hall v. Lunsford, 292 Ark. 655, 732 S.W.2d 141 (1987); Fratesi v. Bond, 282 Ark. 213, 666 S.W.2d 712 (1984). Parties by agreement cannot make this determination. Hall, supra. To be final and appealable, a trial court’s order, decree, or judgment must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Id.; Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986); Hyatt v. City of Bentonville, 275 Ark. 210, 628 S.W.2d 326 (1982). “A final judgment or decision is one that finally adjudicates the rights of the parties, putting it beyond the power of the court which made it to place the parties in their original position.” Thomas v. McElroy, 243 Ark. 365, 420 S.W.2d 530 (1967). A judgment or order is not final and appealable if the issue of damages remains to be decided. Bryan Farms, Inc. v. State, 295 Ark. 180, 747 S.W.2d 115 (1988); Sevenprop Assoc., supra; Kilgore, supra.

The trial court’s decree did not finally adjudicate or conclude the rights of the parties, discharge them from the action, or dismiss them from the trial court. Instead, the court bifurcated the issues before it and reserved determination of the issue of damages for a later date. Accordingly, its decree was not a final judgment or decree under Ark. R. App. P. 2 and Ark. R. Civ. P. 54(b). As an aside, we further note that the trial court’s order did not comply with Rule 54(b) since the order did not make an express determination that there was no iust reason for delay. Tackett v. Robbs, 293 Ark. 171, 735 S.W.2d 700 (1987).

Appeal dismissed without prejudice.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I would consider the case on its merits. While it is before us, we would save time, trouble and expense by deciding this issue now. Maybe Rule 54(b) should be modified to be more flexible.


author: Darrell Hickman, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION, et al. v. UNION INDEMNITY INSURANCE COMPANY of New York, A New York Company, and Robert M. Eubanks III, Insurance Commissioner, State of Arkansas
    87-348
    748 S.W.2d 338
    Supreme Court of Arkansas
    Opinion delivered April 25, 1988

      Thomas B. Keys, Maria L. Schenetzke, and Ted Goodloe, for appellant Arkansas State Highway Commission.

      Junius Bracy Cross, Jr., for appellant Lofland Company of Arkansas, Inc.

      Jack East III, for appellees.
   Darrell Hickman, Justice.

The question in this case is whether the Arkansas State Highway Department, and a materialman who supplied material to a highway job, have a claim against the Arkansas Property and Casualty Insurance Guaranty Fund when the claim arose after the insurance company that issued the surety bond on the job had been declared insolvent. The trial court held that under Arkansas law the appellants did not have a claim, and we agree.

In September of 1984, the Arkansas State Highway Commission entered into three contracts with Case Construction Company for jobs at Overflow Creek, Clear Creek Culvert and Cool Easy Creek totaling $525,000. The surety bonds for the three jobs were issued by Union Indemnity of New York. It is uncontroverted that the New York court that declared Union Indemnity insolvent and ordered its liquidation on July 16,1985, had the authority to do so. The order provided that all obligations of Union would terminate as of August 17, 1985. The Arkansas Insurance Commissioner received notice of the liquidation on July 17, 1985, filed a local action and was appointed ancillary receiver for Union.

The highway commission did not receive personal notice by mail of the New York action, but notice was published in the Arkansas Gazette on August 9 and 16, 1985. A senior highway department employee knew of the insolvency on August 13,1985.

The parties stipulated that “[n] either the Commission nor AHTD declared Case in default of his contractual obligations . . . before August 16,1985.” It was notuntil early November of 1985 that the Commission declared Case to be in default of all three projects. The highway department filed a claim for $118,000. Appellant Lofland supplied material in the amount of $l,611.87before August 17,198 5, and the trial court allowed the claim for that amount. However the court denied a claim for materials amounting to $10,224.74 which were supplied after August 17, 1985.

The only question is whether the appellants had a claim under the Guaranty Fund or the Uniform Insurers Liquidation Act, Ark. Code Ann. § 23-68-101 — 132 (1987). Those acts provide in part:

This chapter shall apply to covered claims existing prior to the determination that an insurer is an insolvent insurer and to covered claims arising within thirty (30) days after the determination of insolvency or before the policy expiration date if less than thirty (30) days after the determination of insolvency or before the insured replaces the policy or effects its cancellation, if he does so within thirty (30) days of the determination of insolvency. [§ 23-90-111(a)]
‘Covered claim’ is an unpaid claim of an insured or third party liability claimant which arises out of and is within the coverage and not in excess of the applicable limits of an insurance policy to which this chapter applies, and which is issued, or assumed whereby an assumption certificate is issued to the insured, by an insurer licensed to do business in this state, in cases where the insurer becomes an ‘insolvent insurer’ after March 30, 1977, and the third party claimant or liability claimant or insured is a resident of this state at the time of the insured event, or the property from which the claim arises is permanently located in this state. [§ 23-90-103]
No contingent and unliquidated claim shall share in a distribution of the assets of an insurer which has been adjudicated to be insolvent by an order made pursuant to this chapter, except that the claim shall be considered, if properly presented, and may be allowed to share where:
(1) The claim becomes absolute against the insurer on or before the last day for filing claims against the assets of the insurer. [§ 23-68-128(a)(l)]

The appellants argue they had a claim or contingent claim from the inception of the issuance of the surety agreement and rely on the case of In the Matter of the Liquidation of Wisconsin Surety Corporation v. Anderson, 112 Wis. 2d 396, 332 N.W.2d 860 (1983). The Wisconsin court held the surety has a liability coextensive with that of the principal which arises from the time the surety agreement is entered into. The trial judge relied on U.S.F. & G. v. Fultz, 76 Ark. 410, 89 S.W. 410 (1905), which provides that a claim against a surety arises upon the principal’s default. We agree. A claim against a surety does not arise until the obligee suffers actual damage. C. & L. Rural Electric Co-op Corp. v. American Casualty Co., 199 F. Supp. 220 (W.D. Ark. 1961). The highway department did not declare Case Construction in default until November of 1985. The contractor was not in default on the contract within the critical time period so there is no doubt that the highway department did not have a claim under Arkansas law. Appellant Lofland delivered materials after August 17,1985; therefore, he could not have a claim within the necessary time period.

The appellants argue they had no notice of the insolvency and were deprived of their rights without due process of law. Of course, there was no requirement that Lofland receive personal notice because there was no way to know of Lofland’s existence. Lofland’s argument is essentially the same as the highway department. The highway department received notice in time to file a claim. It was simply determined they had no claim. The fact they did not receive notice of the insolvency is immaterial.

Affirmed.


author: Steele Hays, Justice.

text:
    Donald McDOUGALD v. STATE of Arkansas
    CR 87-213
    748 S.W.2d 340
    Supreme Court of Arkansas
    Opinion delivered April 25, 1988

      Robert Philip Remet, for appellant.

      Steve Clark, Att’y Gen., by: DavidB. Eberhard, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant, Donald McDougald was charged with capital felony murder in that he had committed a burglary and in furtherance of that felony, he or his accomplice had caused the death of another. A jury trial was held on May 7, 1987, and appellant was found guilty and sentenced to life without parole. Appellant brings this appeal, raising two points for reversal. We affirm the judgment.

I

Ineffective Assistance of Counsel

Appellant first argues he was denied a fair trial due to ineffective assistance of counsel. Counsel for appellant admitted in opening argument that appellant had participated in the burglary and appellant claims that was ineffective assistance of counsel. This point however, was not raised below and therefore may not be raised on appeal. Rogers v. State, 289 Ark. 257, 711 S.W.2d 461 (1986); Sumlin v. State, 273 Ark. 185, 617 S.W.2d 372 (1981).

II

Right to Remain Silent Not Intelligently Waived

Appellant next argues that the trial court erred in denying his motion to suppress statements made to the police. His primary argument is that the confession was not voluntary because at the time he gave it he was under the influence of drugs and alcohol and could not have knowingly and intelligently waived his rights.

While the state has the burden of proving, by a preponderance of the evidence, the voluntariness of a custodial confession, any conflict in the testimony is for the trial court to resolve. While we make an independent determination based on the totality of the circumstances, we will not reverse the trial court unless its determination is clearly erroneous. Graham v. State, 277 Ark. 465, 642 S.W.2d 880 (1982).

The fact that appellant may have been under the influence of alcohol or drugs at the time of his statement, will not of itself invalidate his confession, but will only go to the weight accorded it. Kennedy v. State, 255 Ark. 163, 499 S.W.2d 842 (1973); Johnson v. State, 6 Ark. App. 342, 642 S.W.2d 342 (1982); Bryant v. State, 16 Ark. App. 45, 696 S.W.2d 773 (1985). Whether an accused had sufficient capacity to waive his constitutional rights, or was too incapacitated due to drugs or alcohol to make an intelligent waiver, has remained a question of fact to be resolved by the trial court. Baker v. State, 289 Ark. 430, 711 S.W.2d 816 (1986); Abdullah v. State, 281 Ark. 239, 663 S.W.2d 166 (1984); Fuller v. State, 278 Ark. 450, 646 S.W.2d 700 (1983); Hunes v. State, 274 Ark. 268, 623 S.W.2d 835 (1981).

When deciding the voluntariness of a confession we consider a number of factors, including mental capacity, and when an appellant has claimed intoxication from alcohol or drugs, we have made a closer examination of his mental state. We stated in Kennedy v. State, supra, that the test of voluntariness of one who claims intoxication at the time of waiving his rights and making a statement, is whether the individual was of sufficient mental capacity to know what he was saying — capable of realizing the meaning of his statement — and that he was not suffering from any hallucinations or delusions. We further noted in Kennedy that it was significant in making a finding of voluntariness that the appellant answered questions without indications of physical or mental disabilities, that the appellant remembered a number of other details about the interrogation even though she could not remember waiving her rights, and that a statement was given in a short period of time (four or five hours) after her rights had been read to her.

The evidence presented at the suppression hearing indicated appellant had consumed various pills, amphetamines and muscle relaxants, as well as a great deal of alcohol, for the two days preceding his arrest. Jill Hartón, who was with appellant when he was arrested, testified appellant was in a confused, drugged state and had to be physically supported by the police when he was taken from her apartment. Some of the officers’ testimony indicated they saw evidence of appellant’s “binging” and that he was intoxicated to some extent at the time of the arrest. Appellant’s own testimony was not that conclusive. The most he could say about his mental condition was that he could not think clearly and was confused. He stated he could not remember going over the rights form or being told he was entitled to a lawyer.

Appellant also relies on the testimony of a psychologist, Dr. Spellman, who specializes in drug counseling. Spellman had interviewed appellant sometime after his arrest and compiled an inventory as to what appellant had ingested prior to his arrest. On that basis, Dr. Spellman concluded there was not time for the drugs to wear off, and appellant was incapable of knowingly and voluntarily waiving his rights.

However, Dr. Spellman had not seen appellant during the time appellant was with the police nor during the interrogation and his conclusion was based on appellant’s account of the events. In light of that fact and the evidence presented by the state, his testimony was not persuasive.

The state presented evidence supporting its contention that appellant was sufficiently in control of his faculties to knowingly waive his rights. Appellant was twenty-four years of age, had graduated from high school and stated he could read “pretty well” and understand what he read. He was held for not more than an hour after his arrest before he was questioned and there was no questioning about the incident until the rights were read to appellant. When the Miranda rights were read, appellant was advised of the crime he was accused of and then each right was individually read to him. He was asked after each one if he understood and the officer wrote down that answer. At the end of reading the rights, appellant initialed each answer and signed the statement. It was only shortly after the questioning began — about two minutes — that appellant began to implicate himself in the crime. The interrogation itself appears to have been no more than two or three hours.

Sheriff Jack Gambill was at the Pine Bluff police department when appellant was brought in. He testified that he had in the past arrested people who were under the influence of drugs and alcohol and was aware of their mannerisms and expressions. He stated he smelled alcohol on appellant’s breath but saw no evidence of intoxication in the manner in which appellant walked or in the way he spoke, that he was not intoxicated to the point that he could not understand the conversation he was involved in, and that when he administered the Miranda rights, appellant gave no indication that he did not understand his rights.

Tim Parker, a probation officer with the State of Arkansas, testified appellant could walk on his own and respond intelligently to the questions asked of him. He stated that appellant’s manner of speech was fairly straightforward, and at times even detailed. He stated that during his confession to the police, appellant was detailing his escape and how he had gone down some roads to Fordyce; that the sheriff, listening to this account, got lost a couple of times and appellant went back and picked up the threads of the account.

Additionally, appellant’s own testimony during the suppression hearing contradicts his position on appeal — testimony he gave that suggests he both remembered his rights being read to him and that he understood them. Furthermore, appellant was able to recall a number of other details surrounding the time of the interrogation, such as the events of his arrest, where he was taken, how long he was detained before interrogation, and a number of details of the interrogation such as initially denying he had any knowledge of the murder. And while appellant claims to have only a limited recollection of waiving any rights, he had amazing recall of the events two days prior and up to the time of his arrest. He testified in great detail, where he was, his movements from one friend’s house to another, the times involved, who he was with, and particularly, how much and what kind of alcohol and drugs he had ingested during that time — up to the point of arrest. There was no evidence, or even a claim by appellant that he was suffering in any way from delusions or hallucinations.

The evidence presented by the state was sufficient to support a finding that appellant was not seriously incapacitated and could understand and appreciate what he was saying and the proceedings around him, and under all the other additional circumstances affecting the confession, that it was given voluntarily. Given the test enunciated in Kennedy, supra, and considering the totality of the circumstances, Douglas v. State, 286 Ark. 296, 692 S.W.2d 217 (1985), we cannot say the trial court was clearly erroneous in finding the confession voluntary.

Confession Given in Exchange for a Promise or Reward

Appellant also argues his confession was involuntary because it was made as a result of a promise or reward. Davis v. State, 275 Ark. 264, 630 S.W.2d 1 (1982). Sergeant Roy Ryan stated that he told appellant that two other people involved in the murder with appellant would probably be apprehended soon, that they would probably give a statement and it would be to appellant’s benefit to give his statement first.

We stated the rule in Davis, supra, that if a police official makes a false promise which misleads a prisoner and the prisoner gives a confession because of that false promise, the confession is not voluntary. We further stated that some statements were clearly promises of rewards and it was not necessary to look past the statements to decide the issue. In other cases, the remarks standing alone did not provide sufficient information to decide the question. In those latter cases, not only the statement made to a defendant must be considered, but also the defendant’s vulnerability. In Davis we reviewed particular “promises” under this rule against the background of several cases. The vulnerability of a defendant was examined not only in terms of such things as his age and intelligence, as we have already discussed, but also particular factual settings that render a defendant more vulnerable.

Ryan’s remark to appellant that it would be to his benefit to talk in view of the other two accomplices’ position, is not clearly a promise. See discussion of remarks in Davis, supra. It is necessary therefore to consider appellant’s vulnerability to innuendo under the circumstances of this case.

This case is similar to Tatum v. State, 266 Ark. 506, 585 S.W.2d 957 (1974). In Davis we discussed Tatum, where we found that although the defendant in that case was a habitual offender and probably knew his rights, we found the statement, “I’ll help you if I can” to be a promise and the resulting confession, involuntary. This we found because the defendant was the first of three persons arrested. In reliance on the police statement, he gave the accomplices’ names and a confession. The accomplices were then allowed to plead guilty on negotiated pleas and the accomplices’ testimony was used against the defendant.

Here, appellant was the first to be apprehended and he gave his statement after the exhortation that considering he was the first to be caught, it would be to his benefit to give a statement. One of the accomplices, John Sellars, was apprehended on the basis of appellant’s information, and he testified against appellant at trial. Tatum, however, is distinguishable.

The rule in Davis, supra, considers not only the false promise of the police and the vulnerability of the defendant, but whether a confession was given because of that false promise. So, for example, when discussing the Tatum case in Davis, we found that confession had been given “in reliance” on the police officer’s remark. See also, Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983); 20 Am.Jur.2d Evidence § 559 (1967), “In order to make the confession involuntary. . . the promise must, of course, have induced or influenced the confession.”

During the suppression hearing, the record reveals nothing said by appellant, either expressly or by implication, that indicates he gave his confession as a result of Ryan’s remark. In fact, appellant stated specifically in reference to Ryan’s remark that he didn’t know what benefit Ryan would have been referring to. Nowhere does appellant make any statement that he gave his confession because of Ryan’s remark, and it appears from appellant’s testimony that he did not even understand the remark to be a promise.

Under Ark. Code Ann. § 16-91-113 (1987) [Ark. Stat. Ann. § 43-2725 (Repl. 1977)], as put into effect by our Ark. Sup. Ct.R.11(f), we consider all objections brought to our attention in the abstracts and briefs in appeals from a sentence of life imprisonment or death. In this case we find no prejudicial error in the points argued or in the other objections abstracted for review.

Finding no error, we affirm the judgment.

       Sheriff Jack Gambill testified he told appellant he would not hesitate to tell the court, the prosecuting attorney or anyone else about appellant’s cooperation. This statement however was made to appellant after he had confessed, and Gambill stated that he had in fact done what he told appellant he would do. See U.S. v. Shears, 762 F.2d 397 (4th Cir. 1985), where the court found such statements about relaying fact of cooperation to other officials was entirely proper, citing the district court in that case which stated this was almost a given.


author: Tom Glaze, Justice. Steele Hays, Justice,

text:
    Josh L. BALDWIN, A Minor, by His Father and Next Friend Jerry Baldwin v. Curt MOSLEY
    88-13
    748 S.W.2d 146
    Supreme Court of Arkansas
    Opinion delivered April 25, 1988

      Hicham & Williams, P.A., by; D. Scott Hicham, and Lane, Muse, Arman & Pullen, by: R. Keith Arman, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Tom Glaze, Justice.

This is a tort case in which this court is asked again to reject its adherence to the common-law distinction between a licensee and an invitee. Appellant, Josh Baldwin, was eleven years old and was undisputedly a licensee at the time of his injury. The trial court granted appellee’s (Curt Mosley’s) motion for summary judgment, finding (1) that the facts failed to show Mosley violated any duty owed to Josh as a licensee and (2) that, in any event, Josh’s accident and injury occurred when he was in the presence of his mother and her presence negated any duty Mosley may have owed Josh. We hold the trial court was correct in granting the summary judgment and in applying the common law rule applicable to licensees. Therefore, we affirm.

In addressing the arguments advanced in Josh’s behalf, we first recount the common-law rules to which Arkansas’s courts have adhered when considering a dispute between a property owner and licensee. In Webb v. Pearson, 244 Ark. 109, 424 S.W.2d 145 (1968), this court said, quoting from Knight v. Farmers’ & Merchants Gin Co., 159 Ark. 423, 252 S.W. 30 (1923):

In all of our decisions on the subject — and there are many — we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes the license with its concomitant perils, and that the owner owes him no duty of protection except to do no act to cause him injury after his presence there is discovered. (Emphasis added.)

The Webb court further recited the following, more explicit rule on the subject, as it was set out in Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 79 S.W. 62 (1935):

Whether he be called a trespasser or licensee, the same rule of law applies, and that is that the only duty owing him was not to willfully or wantonly injure him and to exercise ordinary care under the circumstances to avoid injury to him after discovering his peril. (Emphasis added.)

Having reviewed the applicable rules that define the duties owed a licensee by a landowner, we now review the evidence in the case at hand in the light most favorable to Josh in order to determine whether the trial court correctly decided Mosley was entitled to a judgment as a matter of law. See Township Builders, Inc. v. Kraus Constr. Co., 286 Ark. 487, 696 S.W.2d 308 (1985). In examining the record, we have no doubt that the trial judge’s decision, granting Mosley a summary judgment, was a correct one.

The uncontested facts reflect that, at the time of his injury, Josh was visiting his mother, who then was living with Mosley. Josh was sitting on a bar stool eating breakfast when the telephone rang; in answering the telephone, he stood on a rung of the stool and the rung broke, causing him to strike his head against the wall. Josh’s injury later required surgery, but since the surgery, he has experienced no problems. Josh’s mother owned the bar stool, which she previously had received in a divorce from Josh’s father. The father, having prior knowledge that the screws, attaching the rungs, would sometimes come loose from the stool, had admonished Josh “not to stand on those rungs.” Josh’s mother testified that Mr. Mosley, prior to Josh’s fall, had repaired the stool which was the one from which Josh had fallen; she stated, however, that “the spokes (on the stool) had never come loose from the center pole before.” Also, of primary significance, the record shows that Josh’s mother, and not Mosley, was present when Josh fell.

The foregoing facts offer not the slightest hint or inference that Mosley willfully or wantonly injured Josh; and since he was not present when Josh stood on the stool, Mosley was obviously in no position to discover Josh’s peril so as to act to protect Josh against any potential' injury.

In fact, as the record reveals, Josh was under his mother’s control when he fell. Thus, if anyone other than Josh were negligent under the circumstances described here, that person was Josh’s mother because of her failure to properly supervise her son. The trial court reached such conclusion in its alternative reason for dismissing Josh’s complaint. In support of that alternative holding, we note the following rule in Laser v. Wilson, 58 Md. App. 434, 473 A.2d 523 (1984):

[I]f a condition is open and obvious rather than latent or obscure, no greater duty is imposed upon a host of a child under parental supervision than would be owed to the parent. If the parent has either been warned, or if the condition is or should be obvious to the parent, the parents’ failure properly to supervise its child is the proximate cause of a subsequent injury. The host is not negligent because he has performed his duty of having the premises as safe for his guest as for his family and himself. (Emphasis added.)

See also Freeze v. Congleton, 276 N.C. 178, 171 S.E.2d 424 (1970); cf. Pittsburg Reduction Co. v. Horton, 87 Ark. 576, 113 S.W. 647 (1908) (court held that where a mother’s permission was given to her child to take dynamite caps to school where the child gave the caps to the plaintiff, the mother’s actions broke the causal connection between the defendant’s negligence — in leaving the caps where the child could find them — and the plaintiffs later injury that resulted from the caps). In sum, we conclude that the trial court’s decision granting Mosley summary judgment can, and must, be sustained under either of the two theories given by the court when dismissing this cause.

Concerning the appellant’s argument that this court should eliminate the long-settled distinction between a licensee and invitee, we rejected that same suggestion in Coleman v. United Fence Co., 282 Ark. 344, 668 S.W.2d 536 (1984). Although a number of jurisdictions during the 1970’s indicated a willingness to discard the legal distinctions between licensees and invitees, that abolition movement has since lost its steam. See W. Prosser and W. Keeton, The Law of Torts § 62 (5th ed. 1984). From our research, our decision in Coleman to follow such common-law distinctions is clearly the prevailing view in our sister states, see Annot., Landowner Liability — Injured Party Status, 22 ALR 4th 294 (1983), and, in fact, since 1982, the great majority of decisions have continued to apply the conventional entrant classification rules. W. Prosser & W. Keeton, The Law of Torts § 62 (5th ed. Supp. 1988). We are presented no compelling reason why we should depart from our holding in Coleman to continue to follow the common-law distinctions as determinative of landowner liability.

We affirm.

Purtle and Hays, JJ., concur.

Steele Hays, Justice,

concurring. While I concur in the result reached, I do not agree with the majority as to the substantive law applicable to licensees. The majority opinion fosters a misconception that the only duty owed to a licensee, as to a discovered trespasser, is a duty to refrain from injuring the licensee by willful or wanton conduct. That same misconception is implicit in the majority opinion in Coleman v. United Fence Company, 282 Ark. 344, 668 S.W.2d 536 (1984). The majority opinion quotes language from Cato v. St. Louis Southwestern Ry. Co., 190 Ark. 231, 79 S.W.2d 62 (1935):

Whether he be called a trespasser or licensee, the same rule of law applies, and that is that the only duty owing him was not to willfully or wantonly injure him and to exercise ordinary care under the circumstances to avoid injury to him after discovering his peril. [Emphasis added].

That declaration of the law omits an important distinction between the duty owed to licensees as opposed to trespassers. Licensees and trespassers alike are generally considered to take the premises as they find them, although the owner may not affirmatively create a risk of harm to either, once he is aware of their presence. As to licensees, an owner owes no corresponding duty, as in the case of invitees, to render the premises safe, nor any duty to warn them of dangers which should be obvious. But if the owner is aware of a danger on the premises which is latent, or one the licensee might not be expected to recognize, the owner is under a duty to warn him. Prosser and Keeton on Torts, 5th Ed., § 60; Restatement of Torts, Second, § 342. An Annotation in 26 A.L.R.3d 317 summarizes this rule:

[B]ut that where there is a known dangerous condition on the premises and the occupier can reasonably anticipate that his licensee will not discover or realize the danger, the occupier may be held liable for bodily harm caused to the licensee by the condition if he invites or permits the licensee to enter or remain upon the premises without exercising reasonable care either to give warning of the condition and the risk involved, or to make the condition reasonably safe, and the licensee does not know or have reason to know of the condition or risk involved.

An Annotation appearing at 55 A.L.R.2d 52, § 2, recognizes an ambiguity in the law:

While in a number of cases general language may be found which seems to restrict a licensor’s duty to a licensee to that of refraining from wilful or wanton misconduct, or, at most, active negligence, the cases which have explicitly considered the question have frequently recognized that a licensor-landowner may be under an obligation of exercising reasonable care to warn licensees of hidden dangers known to the licensor.

The citations which follow include cases from twenty-five American jurisdictions. Cases to the contrary are almost nonexistent. This is said to be the law “in most jurisdictions.” Harper, James & Gray, The Law of Torts, 2d Ed., § 27.9.

Here there was evidence the appellee was aware of a defect in these stools, and therefore some basis exists for a dispute of fact as to a duty to warn. Were it not for the fact that this child was under the immediate supervision of his mother, who was also aware of the problem, it would be difficult to affirm a directed verdict.

Purtle, J., joins.


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

text:
    Stephen WATKINS and Michael Watkins v. TAYLOR SEED FARMS, INC.
    87-337
    748 S.W.2d 143
    Supreme Court of Arkansas
    Opinion delivered April 25, 1988

      Howard & Howard, by: William B. Howard, for appellant.

      Barrett, Wheatley, Smith & Deacon, and Butler & Hickey, Ltd., for appellee.
   Tom Glaze, Justice.

This case arises from a jury verdict against the appellants in their suit against the appellee for causing appellants’ crop failure. Appellants had alleged that the appellee negligently commingled and mislabeled appellants’ seed with a late maturing variety of seed. Appellants’ appeal is limited to the trial court’s denial of their motion for a new trial, wherein they argue the trial judge erred in refusing to hear and consider testimony concerning certain disparaging remarks about appellants’ attorney made by two jurors during deliberations. Although appellants set out three points on appeal, all three center on whether the trial court was required to consider such testimony pursuant to A.R.E. Rule 606(b). We find no error and therefore affirm.

In support of their offer of proof, appellants included an affidavit and testimony of a juror, John Seymour, who stated that two female jurors made the following comments in the presence of the entire jury: (1) The first woman said, “W.B. ‘Tuffy’ Howard, (appellants’ attorney), got custody of some children for a man and after the man got custody of the children, he murdered them.” (2) A second woman replied, “Yes, that’s the kind of man he is.” These two jurors, whom Seymour claimed had made the remarks, also testified as a part of appellants’ offer of proof. The first one, Mary Seale, denied having made any statements about Howard, but did remember hearing someone make them. The second juror, Donna Cornelison, testified that the jurors had discussed the attorneys but that she did not make nor recall any remarks, as those described by Seymour, having been made in the presence of the jury.

Rule 606(b) provides that upon an inquiry into the validity of a verdict, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything on the juror’s mind or emotions. However, the rule contains the following exception: “[B]ut a juror may testify on the questions whether the extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” A.R.E. Rule 606(b). We have stated that the purpose of the rule is to attempt to balance the freedom of the secrecy of jury deliberations on the one hand with the ability to correct an irregularity in those deliberations on the other. Borden v. St. Louis Southwestern Ry. Co., 287 Ark. 316, 698 S.W.2d 795 (1985).

Appellants contend that the remarks attributed to the two jurors constituted extraneous prejudicial information and required the trial judge to receive and consider the proffered testimony. We disagree. Our provision is identical to Rule 606(b) of the Federal Rules of Evidence. In its Report on the Federal Rules of Evidence, the House Judiciary Committee referred to extraneous prejudicial information as being, for example, a radio newscast or a newspaper account. See Fed. Rules Evid. Rule 606; B and J Byers Trucking Inc. v. Robinson, 281 Ark. 442, 665 S.W.2d 258 (1984). The Committee’s commentary implicitly reflects that extraneous prejudicial information is meant to encompass outside information being brought to the attention of the jurors concerning some issue or matter in the action pending before the court. Such a situation occurred in Borden, wherein we upheld the trial court’s granting of a new trial and finding of extraneous-prejudicial information. 287 Ark. 316, 698 S.W.2d 795. In that case, jurors, despite contrary instructions by the court, went to the accident scene and reported their findings to fellow jurors. However, this court has shown a reluctance to invade the sanctity of the jury room in order to impeach a jury’s verdict and has refused to do so even on facts similar to the ones in Borden. For example, in Robinson, we affirmed the trial court’s denial of a new trial and finding of no extraneous-prejudicial information, when a juror, who had not been cautioned against visiting the accident scene, proceeded to visit the scene and reported his impression or opinion of what he saw to the other jurors. 281 Ark. 442, 665 S.W.2d 258. Because the accident scene was a public highway that was open to everyone’s inspection and the juror had not talked to anyone when he went to the scene, this court agreed with the trial court that no extraneous information existed.

Appellants cite Lewis v. Pearson, 262 Ark. 350, 556 S.W.2d 661 (1977), which clearly involved a situation different from those posed in Borden and Robinson, as well as the one at hand. While Lewis involved an accident and a suit for personal injuries, the issue involving Rule 606(b) arose because the action involved a white plaintiff and a defendant who was black. Sometime during the court’s proceeding, the court’s bailiff discussed his handling of eviction notices with one member of the all-white jury and was overheard to say, “Yes, most of them are black, it seems they all feel like the world owes them something.” In reversing the trial court’s failure to grant a new trial, this court concluded that because of the close relationship between the bailiff and the court itself, any action on the part of the bailiff concerning the jury should be subject to close scrutiny by the court.

In Lewis, the trial court’s bailiff, an officer of the court, was the source of the outside or extraneous prejudicial information and that information was directed at one of the parties to the pending action. In the present case, the statements attributed to the two jurors were not directed at the appellants or the cause they championed. In fact, Seymour testified that the juror, who made the comment about Mr. Howard, “did not advance that as a reason not to find for plaintiffs [appellants].”

In conclusion, we note that, in their motion for a new trial, the appellants alleged not only that extraneous information prejudiced the jury but also that the jurors, making the remarks, were untruthful when failing on voir dire to respond to questions as to whether they knew the appellants’ attorney or knew of any reason they could not give the appellants a fair and impartial trial. The fact that a juror may have heard of appellants’ attorney and some case in which he may have been involved does not equate with the juror knowing the attorney. In this respect, it would be somewhat speculative to say that the jurors’ silence on voir dire was due to untruthfulness on their part.

We can appreciate the appellants’ and their attorney’s concern when confronted with charges that suggest a juror or jurors could have harbored some hidden, personal bias or prejudice which had nothing to do with the actual merits of the cause to be decided. Nonetheless, Rule 606(b) ensures that jury deliberations should remain secret, unless it becomes clear that the jury’s verdict was tainted by a showing of extraneous prejudicial information or some improper outside influence. The evidence the appellants proffer here is not included in the exception under Rule 606(b), and, therefore, allowing the testimony, we believe, would violate the public policy that protects the privacy of the jury room.

Because we find no merit in appellants’ argument, we affirm.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. Although the facts of the case are not important to this dissent, I’m compelled to say that as I view the facts the case was almost open and shut against the appellee. The jury must have decided the case upon extraneous matters because there is no logical justification for the fact that the appellee sold the appellants LaBelle rice but the seed produced Star Bonnet plants. The latter brand matures much later than LaBelle. The jury’s finding, which I consider to be completely contrary to the facts, lends credence to the argument that the verdict should be set aside because the jury considered extraneous prejudicial information.

The basis for this dissent is that there is clear evidence before this court that the verdict was not decided on the issues and evidence presented, but rather on the opinion of at least two jurors that W.B. “Tuffy” Howard was an unscrupulous and mean attorney. ARE Rule 606(b) provides that after a trial a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was brought to bear upon any juror. The juror’s statement quoted in the majority opinion indicated that “Tuffy” Howard had helped a man get custody of his children for the purpose of murdering them. The second juror agreed with the first juror that Howard was that kind of a man. Most certainly such information was not properly before the jury. The primary issue to be decided was whether the rice seeds were LaBelle or Blue Bonnett. The expressed negative reputation of the attorney was unquestionably extraneous prejudicial information.

Even if “Tuffy” Howard had earned the reputation of being a rough and tough attorney, it was not evidence which should have been considered by the jury in deciding his client’s case.

The analysis set forth in the majority opinion would probably go so far as to prohibit an inquiry into whether a juror had been bribed. I think the entire court would agree that there would not be a fair jury trial under such circumstances.

For the reasons stated above, I think the case should be reversed and remanded for a trial before a fair and impartial jury.


author: Darrell Hickman, Justice. David Newbern,

text:
    ARKANSAS POWER & LIGHT COMPANY v. Cecil Dwayne HOOKS
    87-329
    749 S.W.2d 291
    Supreme Court of Arkansas
    Opinion delivered May 2, 1988

      House, Wallace & Jewell, P.A., by: Philip E. Dixon, for petitioner.

      Pulliam, Davis & Wright, by: Randall G. Wright, for respondent.
   Darrell Hickman, Justice.

We granted review of this case to consider the court of appeals’ decision which indicates that misconduct of an employee leading to dismissal would not result in the denial of workers’ compensation benefits. The court of appeals made the decision, on this question of first impression, in an unpublished opinion. We find after reviewing the case that it is unnecessary to reach the issue, and the Workers’ Compensation Commission’s decision simply should have been affirmed.

On June 13,1982, Cecil Dwayne Hooks, an Arkansas Power and Light serviceman, suffered a fall of about 15 feet while on the job, injuring his back, neck, and legs. He returned to work for AP&L on August 3, 1982, and was assigned light duty. At that time his disability payments and payment of medical expenses ceased. It is undisputed that Hooks was fired for stealing electricity from AP&L and his dismissal was affirmed through the company’s grievance procedure. He has not returned to the work force.

Hooks filed for temporary total disability benefits from the date he was fired, October 21,1982, through the date of his back surgery, December 26,1983. The administrative law judge found that he was entitled to benefits. The Workers’ Compensation Commission found that Hooks was not totally disabled during this time and that in any event benefits should be denied because Hooks “was put out of work not because of his injury but because of his own willful conduct.” The commission relied on the case of Calvert v. General Motors Corp., 120 Mich. App. 635, 327 N.W.2d 542 (1982), for this finding. The court of appeals reversed the commission’s decision, finding that Hooks was in fact disabled, and that the commission’s reliance on Calvert was misplaced. Since we find the commission’s determination that Hooks was not temporarily totally disabled should have been upheld, we need not consider the effect of his misconduct on his entitlement to benefits.

The established rule of review in workers’ compensation cases is that the commission’s findings must be upheld unless there is no substantial evidence to support them. Osage Oil Company v. Rogers, 15 Ark. App. 319, 692 S.W.2d 86 (1985); City of Fayetteville v. Guess, 10 Ark. App. 313, 663 S.W.2d 946 (1984).

Hooks was receiving the same wages he did before his injury, according to the testimony of his superior. There is every indication that he would have continued doing this light work until he was ready to return to his regular duties. His light work duties were those which a “journeyman lineman” might perform. Hooks’ supervisor testified:

He worked on a regular basis, he was on restricted duty and he was not assigned his usual . . . [w]hat we call single basket truck which is used by journeymen linemen, but instead given one of the smaller trucks about the size of a pickup truck and his work consisted of connecting meters, disconnecting meters, reading meters in and reading them out when a customer was moving or relocating. He did any work that a journeyman lineman could do from the ground, except lift, carry and stoop. He could not climb a pole.

The commission also relied on the following medical evidence in making its decision:

The above named patient was seen in follow up today. He is now wearing a TENS unit and is obtaining some relief from the pain. The family situation has settled down somewhat. He could be returned to work on a limited basis so long as he did not do any heavy lifting, climbing, stooping or squatting. He is given a lumbosacral support which he is to wear when he is at work. He could do some limited driving so long as he works in the support. (Dr. Giller’s letter to Dr. Moore 8-2-82.)
The above named patient was seen in follow up today. He is getting some relief from his TENS unit and he is wearing a back brace. His only problem is keeping the TENS in place, especially when he drives in the truck. Driving also makes his back hurt. It is my impression that Mr. Hooks is making progress. This will be a slow process and it will take a minimum of three to four months before he begins to work back into his usual activities. Meanwhile, his same restrictions should stay in effect. (Dr. Giller — 8-23-82)
He is increasing his walking and is improving. Although he is improving the same restrictions should apply. He is not ready to return to his usual job. (Dr. Giller — 10-11-82)

This last letter was written ten days before Hooks was dismissed. The commission found that Hooks was not disabled, stating:

Temporary total disability is that period within the healing period in which the employee suffers a total incapacity to earn wages. See Arkansas State Highway Department v. Breshears, 272 Ark. 244, 613 S.W.2d 392 (1982). The testimony indicates that claimant was not totally disabled during this period ....

The commission is the fact-finding body in the administrative procedure of workers’ compensation claims. See Bemberg Iron Works v. Martin, 12 Ark. App. 128, 671 S.W.2d 768 (1984). On appellate review, the court is not to substitute its judgment for that of the commission regarding facts. The appellate role is only to see if there is substantial evidence to support the commission’s findings. Central Maloney, Inc. v. York, 10 Ark. App. 254, 663 S.W.2d 196 (1984). It seems the court of appeals reviewed this case de novo, which was error.

There was substantial evidence to support the commission’s findings.

Reversed.

Purtle, J., dissents.

Newbern, J., concurs.

David Newbern,

Justice, concurring. The majority opinion is correct. I write only to amplify upon the note taken in the opinion that the court of appeals purported to answer a question of first impression in the law of this state by an opinion which was not designated for publication.

For a time, this court decided cases by signed opinions not designated for publication. The practice was governed by Rule 21 of the Rules of the Arkansas Supreme Court and Court of Appeals. After the court of appeals was created, the rule was changed to provide that all signed opinions of the supreme court are to be designated for publication; however, the rule retained the practice for court of appeals opinions.

Everything I have to say about appellate courts deciding cases and not publishing their opinions is contained in D. Newbern and D. Wilson, Rule 21: Unprecedent and the Disappearing Court, 32 Ark. L. Rev. 37 (1978). While that article was written with respect to the practice of the supreme court, the criticisms apply equally to our court of appeals.

This case points up the need to revise our entire appellate system. By dividing appellate jurisdiction, our Rule 29 makes the court of appeals a court of last resort in, for example, contracts cases and property disputes which are cases of at least equal dignity with those being decided, in many instances, by this court. Yet the court of appeals decides those cases, for the most part in panels of three judges, often by opinions not designated for publication, and sometimes on an “accelerated civil list.” See Per Curiam Order, 16 Ark. App. 301, 700 S.W.2d 62 (1985). In the great majority of its cases the court of appeals is a court of last resort because there is no right of appeal from that court to this one. Rule 29 6. We decline to review court of appeals decisions on the ground of suggested error. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).

In some instances the rule works to assure that more important cases are decided in the supreme court. More often it does not. While the supreme court is deciding a fender bender torts case with only an issue of sufficiency of the evidence and writing a signed, published opinion for seven justices en banc, three court of appeals judges may be deciding what the property or contract law of this state is to be for years to come, assuming a decision is made to publish an opinion on a question of first impression. (The unpublished opinions do not count because they cannot be cited. See Rule 21.4.)

I can think of no way to divide the work of the supreme court and the court of appeals by assigning categories of cases in such a way that it would not produce the kind of uneven, unfair system we now have. In my view, the answer lies in making an enlarged court of appeals the first appellate resort in all cases with the right of appeal to this court in capital crimes cases and perhaps in those interpreting the Constitution of Arkansas. Provisions for bypassing the court of appeals could perhaps be retained for cases in which that court recognizes law-making potential. As the primary appellate court, the court of appeals should be required to publish its opinions in all cases so that it can be held accountable for them, and this court should review the court of appeals decisions for error, when asked to do so by an aggrieved party, on a discretionary basis.

John I. Purtle, Justice, dissenting. I am glad this court did not reach the question whether workers’ compensation benefits should be discontinued when the employee is subsequently discharged because of misconduct. Obviously the majority would have upheld the commission’s erroneous ruling had it reached the merits. Now, I hope, time will allow for proper reflection and research before this court decides such an important issue. However, even after avoiding a decision on such an important issue, the majority is still in error. The opinion in effect holds that the appellant did not have any disability at the time he was discharged. The majority appears to be laboring under the same mistaken impression of the law as was the Workers’ Compensation Commission.

After a hearing before an administrative law judge, it was determined that the appellant was entitled to temporary total disability benefits from the time of his discharge until the time of his back surgery. In a split decision the commission reversed the administrative law judge’s order and dismissed the claim. The commission founded its opinion on public policy. I find no authority for the commission to make such sweeping determinations of public policy. Commissioner Melvin Farrar in his dissent stated: “I find that just cause to terminate a claimant’s employment is not necessarily just cause for denial of worker’s compensation benefits.” Commissioner Farrar was right.

In a well reasoned unanimous opinion by the Arkansas Court of Appeals, Division I, the commission was reversed and the benefits restored to the appellant. I find the unpublished opinion of the Court of Appeals to be sound in all respects.

Before continuing with a discussion of the merits of the case, I wish to point out that an employee may be temporarily totally disabled or he may be temporarily partially disabled. The fact that an employee remains able to do some type of work for some period of time, as the appellant was in this case, does not necessarily demonstrate that he is not temporarily and totally disabled. Mountain Valley Superette v. Bottorff, 4 Ark. App. 251, 629 S.W.2d 320 (1982). If, during the healing period, an employee is unable to consistently perform remunerative labor, without pain and discomfort, he is temporarily totally disabled. Pyles v. Triple F Feeds of Texas, 270 Ark. 729, 606 S.W.2d 146 (Ark. App. 1980).

It is not the duty of the Workers’ Compensation Commission, the Court of Appeals or this court to create new penalties under the law. The people, acting through the legislature, are the source of change in the law. The commission and this court have, in my opinion, attempted to amend an initiated act and change a statute by the decision in this case.

The appellant’s treating physician’s report of November 14, 1983, stated in part: “[That the appellant] is not able to engage in any work that would require lifting, bending, or prolonged sitting. For that reason he is most likely disabled from work.” The physician’s statement and the fact that the employer created a “soft” job for the appellant during the time he was unable to perform regular duties is heavy evidence that he was disabled from performing his regular duties. If the appellant was temporarily partially disabled, it was the duty of the employer to find work which the appellant could have done, or cause compensation benefits to be paid.

The main reason for this dissent is to wave a flag before the court, and the people, with the hope that we will not continue the “judicial legislating” business by creating a statutory type penalty for disabled workers who are subsequently discharged for misconduct. Adoption of such a “public policy” would obviously produce many complaints of misconduct in order to terminate the injured employee’s benefits and lower the employer’s rate of insurance. The people of the state of Arkansas through the legislature have spoken — employees who are injured on the job are entitled to receive disability benefits. It is not up to this court, or the Workers’ Compensation Commission, to deny the rights which have been granted to injured employees. When people are entitled to benefits under the law they should receive those benefits.

An injured employee, of course, draws less compensation than he received while he was working. It’s not inconceivable that a worker in such circumstances might be reduced to an income where he would have to steal a loaf of bread in order to feed his hungry children. The fact that he stole a loaf of bread certainly doesn’t remove his disabilities or restore his wages. That is the reason we have criminal law. When people violate criminal laws they should be punished.

Of course the “misconduct” may be only a violation of company policy or perhaps even “insubordination.” It doesn’t take much imagination to foresee trumped-up charges to simply get rid of an employee who has a lifetime disability of some type. The benefits to the employers and insurance companies would be substantial if the commission and the courts approved such tactics.

I conclude with a line from the opinion of the Court of Appeals: “We believe the question, involving as it does a matter of public policy, [is] one best resolved by the legislature.” So do I.


author: John I. Purtle, Justice.

text:
    Clarence McCLENDON v. STATE of Arkansas
    CR 87-147
    748 S.W.2d 641
    Supreme Court of Arkansas
    Opinion delivered May 2, 1988
    [Rehearing denied May 31, 1988.]

      Charles L. Carpenter, Jr., for appellant.

      Steve Clark, Att’y Gen., by: Clint Miller, Asst. Att’y Gen., for appellee.
   John I. Purtle, Justice.

The appellant was convicted of one count of capital murder and one count of aggravated robbery. He was sentenced to life imprisonment without parole for capital murder and life imprisonment for aggravated robbery. The trial court withheld execution of the sentence for aggravated robbery unless the capital murder conviction was set aside. On appeal the appellant argues the following four points for reversal: (1) the trial court committed error by allowing an in-court identification of the appellant; (2) the trial court committed error by failing to grant a directed verdict on both charges; (3) the capital murder statute was unconstitutionally applied in the appellant’s case; and (4) the trial court committed error by failing to dismiss the aggravated robbery conviction.

For reasons stated below we affirm the judgment of the trial court as modified to set aside the conviction for aggravated robbery.

On April 13,1986, at approximately 10:00 p.m., two armed men wearing masks entered the premises of a store on Confederate Boulevard in Little Rock. The owner of the store, who was shot shortly after the men entered, died a few days later. A clerk at the store testified that he had seen and talked to the appellant at the store twice on that same day. At approximately 10:00 p.m. when the clerk was leaving, he saw the appellant outside the store putting a stocking over his head. He also testified that the appellant had a gun in his trousers at that time. The clerk struggled with the appellant and an accomplice and then escaped and hid underneath a truck. When he re-entered the store a few minutes later he discovered that the owner had been shot in the head. He then took the owner to the hospital. The clerk also testified that four or five hundred dollars from the victim’s front pocket and his billfold were missing. On April 21,1986, the clerk identified the appellant in a police lineup. The state filed formal charges against the appellant on June 10, 1986.

The appellant argues that the in-court identification was improper because he was entitled to have counsel present at the police lineup conducted on April 21,1986. The right to counsel of the Sixth Amendment, applicable to the states through the Fourteenth Amendment, operates to assure that the accused’s right to a fair trial is protected. The United States Supreme Court has held that the accused’s right to counsel attaches only to corporeal identifications conducted at or after the initiation of adversary criminal proceedings, whether by way of formal charge, preliminary hearing, indictment, information or arraignment. See Moore v. Illinois, 434 U.S. 220 (1977).

This court has had the opportunity to consider this same issue on several occasions. See Walters v. State, 266 Ark. 699, 587 S.W.2d 831 (1979); and Lewis v. State, 281 Ark. 217, 663 S.W.2d 177 (1984). In each of these cases, as in the situation before us, the defendant participated in a lineup before formal charges had been filed. In each case we held that the accused was not entitled to the presence of counsel because adversary proceedings had not been initiated.

In the present case the appellant argues that we should hold that “criminal proceedings” had been initiated despite the fact that no formal charges were filed until approximately two months after the lineup. This we cannot do. To do so would amount to overruling a line of cases based upon the decision of the United States Supreme Court on the same issue. Since no formal charges had been filed against the defendant we hold that the defendant was not entitled to counsel at his identification lineup.

The appellant also argues that the lineup conducted on April 21, 1986, was unduly suggestive. After careful consideration of the record we find nothing to indicate that the lineup violated the defendant’s due process rights by being unduly suggestive. From the facts presented, there is substantial evidence to conclude that the in-court identification was not “tainted” by the identification in the lineup. The eyewitness’ opportunity to observe the appellant was great and his testimony was clear and unequivocal.

The appellant’s second point for reversal is that the trial court should have granted a directed verdict on both the aggravated robbery charge and the capital murder charge. He argues that there is insufficient evidence to support the conviction of capital felony murder or aggravated robbery.

In the present case there was testimony that the appellant was seen at the store several times on the day in question asking about the owner. At the time the employee left the store he observed the appellant with a gun and in the process of pulling a stocking over his head. Additionally, the store owner’s billfold and approximately four or five hundred dollars which the owner had in his front pocket shortly before the shooting were missing. Unlike Trotter v. State, 290 Ark. 269, 719 S.W.2d 268 (1986), which is relied upon by the appellant, there is substantial corroborating evidence from which a jury could find that the shooting occurred during the course of a robbery.

The appellant’s third point for reversal is that the capital murder statute was unconstitutionally applied. In support of this the appellant asserts that the underlying felony, aggravated robbery, is not one of the seven felonies that can support a charge of capital felony murder. This argument has been raised before. In Simpson v. State, 274 Ark. 188, 623 S.W.2d 200 (19 81), we held that the General Assembly could not conceivably have intended that robbery, which may involve no force, would support a charge of capital murder, while aggravated robbery, an inherently dangerous crime, would not. Aggravated robbery is still a robbery.

McClendon also contends that the first degree murder statute and the capital murder statute are unconstitutionally vague and overlap in such a way that he may be charged with either crime for the same conduct. This argument has also been raised before and we have decided that there is no constitutional infirmity in these statutes. Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981).

However, we do find that appellant’s final argument has merit. He insists the trial court should not have entered a judgment on his conviction for aggravated robbery. We agree. Aggravated robbery in this case was the underlying felony relied upon by the state to establish the crime of capital murder. The robbery was an essential element of the crime of capital murder. Therefore the appellant could not have been sentenced for aggravated robbery in this case. Cozzaglio v. State, 289 Ark. 33, 709 S.W.2d 70 (1986).

Having no authority to do so, the trial court should not have sentenced the appellant for aggravated robbery. The sentence for aggravated robbery therefore should be set aside.

Accordingly the capital felony murder conviction of the appellant is affirmed and the aggravated robbery conviction is reversed and the case is remanded to the trial court with directions to vacate the sentence and dismiss the charge of aggravated robbery.

Affirmed in part; reversed and remanded in part.


author: Robert H. Dudley, Justice.

text:
    Lenard CORAN and Bertha L. Coran v. Gary KELLER and wife, Vicky Keller
    87-335
    748 S.W.2d 349
    Supreme Court of Arkansas
    Opinion delivered May 2, 1988

      Rose Law Firm, A Professional Association, by: Herbert C. Rule III and Stephen N. Joiner, for appellants.

      Brazil, Clawson & Adlong, by: Charles E. Clawson, Jr,, for appellees.
   Robert H. Dudley, Justice.

The defendants, Lenard and Bertha Coran, constructed and sold a house to the plaintiffs, Gary and Vicky Keller, for $34,500.00. The plaintiffs moved into their home and soon discovered the septic tank did not function properly, that sewage backed into the house, that soap suds from the washing machine seeped into the bathroom, that sewage and other effluence stood in the backyard, and that water would not percolate in the ground around the house. The defendants made various attempts to correct the problems, but all were unsuccessful. Plaintiffs filed suit in circuit court for breach of warranty asking $37,500.00 damages. The defendants answered and admitted that the house had defects, but denied that the defects were the fault of the defendants. At trial, the jury returned a verdict as follows: “We the jury find for the plaintiffs, Gary Keller and wife Vicky Keller, and fix their damages at a sum of $34,500.00. Noble L. Bowman, Foreman. With stipulation that Lenard Coran receives the deed to the house.'’' (The italicized portions of the above were handwritten.) After hearing the verdict, neither party asked that the jury be polled nor questioned the verdict, and the jury was discharged. Eleven days later the plaintiffs filed a motion asking the trial court to modify the verdict. At the hearing on the motion the defendants asked the court to either enter a judgment on the verdict or else grant a new trial. The trial court ruled:

I didn’t make any inquiry of the jury, but two of them were in my office a week or two after this trial and said, “What did you think about our verdict in the” —what’s this— “the Keller-Coran case?” I said, “Well, I think y’all made a big mistake in putting that stipulation on it.” They said, “Now, Judge, if you had just sent us back into the jury room, we were prepared to remove that stipulation.” But, nobody asked for ’em to be sent back in and I didn’t send ’em back in. So, now, both sides come to me and want to correct the verdict rendered by the jury.
So, my holding is going to be that the jury had no right to write any stipulation on this verdict form, that they went beyond their province, they went beyond the instructions of the Court, and I’m going to correct the verdict by removing the stipulation and leaving part of the verdict, “We, the jury, find for the plaintiffs, Gary Keller and wife, Vicky Keller, and fix their damages at a sum of thirty-four thousand five hundred dollars,” as the verdict in this case, and see if the higher court will affirm or reverse. I know it’s going to be a very interesting case for them to decide. It was a very interesting case to hear, and I don’t really want to have to hear it again. It may be remanded down here for me to hear again, but that’s the only way I’m going to hear it again. I’m not going to grant a new trial. I’m going to conform the verdict to what I consider it should have been, had the jury followed the instructions of the Court, which they apparently did not. They decided, on their own, to make an equity case out of it and try to do some kind of an equity in the matter, which was beyond their province.

The trial court then entered a judgment striking the handwritten stipulation as surplusage. The defendants appeal. We reverse and remand for a new trial.

In Sanson v. Pullum, 273 Ark. 325, 329, 619 S.W.2d 641, 644 (1981), we said:

Uniform Evidence Rule 606(b) states plainly that a juror may not testify as to the effect of anything upon his mind as influencing him to assent to the verdict, nor may his affidavit be received concerning a matter about which he is precluded from testifying. We take this opportunity to state unequivocally, for the guidance of the bar, that in our opinion it is improper for a lawyer to interview jurors after a trial in an effort to obtain such inadmissible affidavits to impeach their own verdict.

Similarly, a trial judge, before ruling on a motion to modify the verdict, should not have an ex parte conversation with some of the jurors about anything which caused them to assent to the verdict. To do so is error.

In addition, the trial court erred in making a substantive amendment to the verdict after the discharge of the jury. Browne v. Dugan, 189 Ark. 551, 556, 74 S.W.2d 640, 643 (1934); Ark. Code Ann. § 16-64-119(2) (1987).

The above two errors are errors of law and amount to sufficient reason to reverse this case. We need not discuss the appellants’ other points which go to the jury’s intent and involve alleged errors of fact.

In our decisional conference, the only part of this case which caused us any real difficulty was what to do with the case after we had reversed it. As a general rule, the failure to object to some irregularity in a verdict prior to the discharge of the jury constitutes a waiver of that irregularity. Smith v. Perkins, 246 Ark. 427, 429, 439 S.W.2d 275, 276 (1969); Hodges v. Bayley, 102 Ark. 200, 204, 143 S.W. 92, 93 (1912); Ark. Code Ann. § 16-64-119(2). But see Martin v. Blackmon, 277 Ark. 190, 193-94, 640 S.W.2d 435, 436 (1982); Wharton v. Bray, 250 Ark. 127, 131, 464 S.W.2d 554, 556 (1971) (these two cases distinguish the general rule). Since no objection was made to the jury’s verdict, under normal circumstances we would remand with instruction to set aside the modification and enter the verdict returned by the jury. In this case, however, the verdict returned granted a relief, rescission, that was neither pleaded nor within the jurisdiction of the circuit court to grant. The circuit court does not have the affirmative power to transfer title from the plaintiffs, appellees, to the defendants, appellants. During oral argument of this case, the appellant referred to rescission at law. In rescission at law the tender of the property itself effectuates the rescission, and the law court only grants restitution. In rescission in equity the affirmative powers of the court of equity are used to rescind, or undo, the contract. Brown v. Techdata Corp., 238 Ga. 622, 234 S.E.2d 787 (1977). The second type of rescission is the type ordered by the jury in the case at bar, and the law court does not have that subject matter jurisdiction. Since subject matter jurisdiction can be raised at any time, and is raised by this Court on its own motion, we deem it best to raise the issue of the lack of jurisdiction of the circuit court to give the relief awarded in the verdict, and accordingly, we remand the case for a complete new trial.

Reversed and remanded for a new trial.