author: David Newbern, Justice. Darrell Hickman, Justice,

text:
    AMERICAN TRUCKING ASSOCIATIONS, Inc., et al. v. Henry C. GRAY, Director, Arkansas Highway and Transportation Department, et al.
    85-101
    746 S.W.2d 377
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988
    [Rehearing denied April 25, 1988.]

      Mayer, Brown & Platt, by: Andrew L. Frey, Kenneth S. Geller and Douglas K. Mayer; Of Counsel: William S. Busker, Vice President, Legal Affairs, American Trucking Ass’n Inc.; ATA Litigation Center, by: DanielR. Barney and Robert Digges, Jr.; Wright, Lindsey & Jennings, by: Peter G. Kumpe and Gregory T. Jones, for appellants American Trucking Ass’ns., Inc., et al., and the appellant class.

      Jack, Lyon & Jones, P.A., by: Eugene G. Sayre, for appellant Leon Cawood d/b/a Leon Cawood Trucking.

      Thomas B. Keys; Ted Goodloe, for Arkansas State Highway Commission; Joe Morphew, for Dep’t of Finance and Administration; and Steve Clark, Att’y Gen., for appellees.

      Rose Law Firm, A Professional Ass’n, Jerry C. Jones and B. Michael Bennett, for Intervenors O.K. Enterprises, Inc.; Peterson Industries, Inc.; and Pilgrims Pride Corp. d/b/a Arkansas Poultry Federation.

      Collier, Shannon, Rill & Scott, by: Jeffrey W. King, K. Michael O'Connell, and Daniel J. Harrold; and Smith, Smith, Nixon and Duke, by: Griffin Smith, and Griffin Smith, Jr., for Memorandum of Owner-Operators Independent Drivers Association of America, Inc., Adaline Munn and Jacqueline Davis in support of their motion to intervene and for certification of a subclass.

      Hickman, J., would grant rehearing.

   David Newbern, Justice.

The appellants, American Trucking Associations, Inc., et al., (ATA) challenged the constitutionality of Act 685 of 1983, which instituted the Arkansas Highway Use Equalization Tax (HUE Tax), as a violation of the Commerce Clause. The Pulaski County Chancery Court upheld the tax, and we affirmed. American Trucking Associations, Inc. v. Gray, 288 Ark. 488, 707 S.W.2d 759 (1986). While the case was on certiorari, the Supreme Court decided American Trucking Associations, Inc. v. Scheiner,_U.S__, 107 S. Ct. 2829 (1987), invalidating a similar Pennsylvania tax. The Supreme Court vacated our judgment in the Gray case and remanded it to us for reconsideration in light of its decision in the Scheiner case. On August 14, 1987, the appellees, Henry C. Gray, Director of the Arkansas Highway and Transportation Department, et al., were ordered by Mr. Justice Blackmun, in his capacity as Circuit Justice, to place HUE tax receipts in an interest-bearing escrow. As directed, we now reconsider our prior decision of the case. In addition to the basic question of the constitutionality of the act, we have been asked by the appellant class represented by ATA to decide whether and to what extent taxes collected pursuant to the act are to be refunded if the act is invalidated. We are also asked to determine whether counsel for ATA are entitled to court ordered attorney fees. We hold that the act is unconstitutional, the taxpayers represented by ATA are entitled to have refunded the taxes they have paid into the escrow fund, and the case is to be remanded to the chancery court to determine the manner of refund distribution and payment of attorney fees.

1. Unconstitutionality

We need not set out the details of the HUE tax, as that was done in our earlier opinion in this case. Nor do we need to detail the Pennsylvania tax, which was held invalid in the Scheiner case, and the somewhat persuasive arguments about how the HUE tax differs significantly from the Pennsylvania tax. The important point to recognize is that, in the Scheiner case, the Supreme Court applied its “internal consistency” test and said, in effect, that if a state’s tax treats truckers whose bases of operations are outside the state differently from those based in the taxing state, it violates the Commerce Clause. It is conceded that the HUE tax effectively costs other truckers more per mile than it costs those based in Arkansas, despite the option, which is available to all, to pay a flat rate or a per-mile rate or a trip rate. Therefore, we have little doubt that the Supreme Court would hold that the HUE tax is unconstitutional, and that is our holding.

2. Refunds

The HUE tax promulgated by Act 685 of 1983 was repealed by Act 3 of 1987 (2nd Ex. Sess.). Thus, our decision that the tax was unconstitutional is unimportant except to the extent it may call for refunds. From the time the tax was enacted until Mr. Justice Blackmun’s order of August 14,1987, some $159 million was collected and funneled to the state treasury. After the escrow account was created, some $4.9 million was collected and placed in the account. As the HUE tax was paid by all truckers, it is obvious that some of it was paid by those based in Arkansas. Some Arkansas HUE taxpayers have intervened on behalf of all such taxpayers contending, along with the appellees, that the non-Arkansas based truckers are not entitled to a refund. The Arkansas HUE taxpayers have also made it clear that they seek no refund.

To hold the interstate truckers were entitled to all of their HUE tax payments, we would have to apply the Scheiner decision retroactively. It should only be applied prospectively. The Supreme Court, in Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), stated three factors to be considered in deciding to apply a judgment prospectively: (1) The judgment establishes a new rule of law overruling cases or arises from a case of first impression. (2) The purpose of the law will not be thwarted by prospective application. (3) A general balancing of the equities favors prospective application.

The first factor is aimed at whether it was reasonable for the state to have conducted itself as it did, given prior Supreme Court interpretations of the Commerce Clause. The Scheiner decision notes that several other states besides Arkansas and Pennsylvania had enacted so-called “flat” highway taxes. Justice O’Connor, in her dissenting opinion, noted that these taxes would probably be found violative of the Commerce Clause pursuant to the Scheiner holding. The Scheiner case was decided five justices to four with strong dissenting opinions. It declared invalid a tax which a reasonable person could easily have found to pass Commerce Clause muster upon examination of Aero Mayflower Transit Co. v. Bd. of R.R. Comm’rs of Montana, 332 U.S. 495 (1947), and Aero Mayflower Transit Co. v. Georgia Public Serv. Comm’n, 295 U.S. 285 (1935), in which “flat” highway taxes were held not violative of the Commerce Clause. We relied on those cases, among others, in our original opinion in this case.

Second, the purpose of the law espoused in the Scheiner decision is to secure equal treatment for inter- and intrastate commerce and thus create an area of free trade among the states. No doubt prospective application will help achieve that goal. We agree with the Washington Supreme Court which recently found itself having to decide whether a Supreme Court decision would operate only prospectively with respect to invalidation of the Washington business and occupation tax. “It is difficult to understand how retroactive application would encourage free trade among the states since whatever chill was imposed on interstate trade is in the past and the Legislature has enacted law to attempt to comport with the new commerce clause taxation laws announced in Tyler [Tyler Pipe Indus., Inc. v. Department of Rev.,_U.S__, 107 S. Ct. 2810 (1987)].” National Can Corp. v. Department of Revenue, 109 Wash. 2d 878, 749 P.2d 1286 (1988).

The equities favor disallowing refund of the tax money already paid into the state treasury. The interstate, non-Arkansas based truckers have used Arkansas highways with their heavy trucks to which the HUE tax applied since 1983. To refund everything paid by them since that date would allow them an unconscionable windfall far in excess of a fair recovery for the discrimination they may have suffered due to the tax. It would constitute unfair treatment of the Arkansas-based truckers who have paid the tax and seek no refund. It is fair, however, to allow to the ATA class a refund of the HUE tax money paid into escrow since August 14,1987, when the appellees were put on notice that the ATA’s claims were ones which were likely to succeed on their merits. The escrowed funds have not been placed in the state treasury and spent or, presumably, counted on for the future.

3. Attorney fees

We have consistently recognized that when a class action results in the recovery of a “common fund” it is proper to allow attorney fees to be paid from the fund. Powell v. Henry, 267 Ark. 484, 592 S.W.2d 107 (1980); Marlin v. Marsh, 189 Ark. 1157, 76 S.W.2d 965 (1934).

Conclusion

The case is remanded to the chancellor to determine the means by which the payments made by non-Arkansas based truckers into the HUE tax escrow fund may be refunded pro rata after deduction of attorney fees to be determined by the chancellor.

Reversed and remanded.

Hickman, J., dissents in part.

Darrell Hickman, Justice,

dissenting. I agree with the court’s decision except regarding the refund. If the United States Supreme Court’s decision in American Trucking Associations, Inc. v. Scheiner,_U.S__, 107 S. Ct. 2829 (1987), is to be applied prospectively, then the refund should be made from the date of that decision, or certainly no later than when we were asked, in July 1987, to place the funds in escrow. Our decision denying that request should have reflected that I did not participate.


source: Caselaw Access Project

author: David Newbern, Justice. Steele Hays, Justice,

license: Public Domain

text:
    Theodore Clark STEWART v. STATE of Arkansas
    CR 87-159
    746 S.W.2d 58
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988

      Robert A. Newcomb, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

The appellant, Theodore Clark Stewart, was convicted of burglary. He petitioned the court for a new trial, pursuant to Ark. R. Crim. P. 37, alleging that his lawyer had been ineffective. The court denied relief, without holding a hearing, on the ground that the petition stated only conclusions rather than facts in support of the allegation. As we believe the petition stated sufficient facts to warrant a hearing, the case is reversed and remanded.

The petition alleged that Stewart’s counsel interviewed none of the state’s witnesses and did not file a discovery motion to obtain the statements of the state’s witnesses from the police. It alleged that counsel also did not interview any of the defense witnesses whose names had been furnished to counsel. Specifically, Stewart contends his brothers would have testified he was with them at the time the burglary was committed. He also claims that had “hospital personnel” been called on his behalf, they, along with his family members, could have testified that injuries he received were “consistent with” a car injury instead of the injury he was alleged by the state to have received in the course of committing the burglary.

If a Rule 37 petition is meritless on its face, no evidentiary hearing need be held. Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986). No hearing need be held if the trial court can determine conclusively from the record that the petitioner’s contentions are meritless. Morrison v. State, 288 Ark. 636, 707 S.W.2d 323 (1986).

Although the petition did not give the names of the “medical personnel” who might have testified on Stewart’s behalf, that may well have been because he did not know who they were and had no way to find out without counsel’s assistance. We cannot tell from the record before us now. Stewart’s description of the testimony they might have given is sufficient to make his allegation more than conclusory. Nor do we deem it fatal to the petition that Stewart did not give the names of his brothers. His statement that they would have given alibi testimony is also more than conclusory.

Although the trial judge entered a number of factual findings about the procedural history of the case, indicating that Stewart’s present counsel had filed the petition and had done nothing about it for several years, he made no findings based on the record with respect to Stewart’s allegations. It is reversible error for the trial judge to fail to make reference to the parts of the record relied upon to deny the petition, Robinson v. State, 264 Ark. 186, 569 S.W.2d 662 (1978), unless we can conclude from the record as a whole that the petition has no merit. Rawls v. State, 264 Ark. 954, 581 S.W.2d 311 (1979). We can reach no such conclusion based on the record before us. The denial of the petition is reversed, and the case is remanded for a hearing pursuant to Ark. R. Crim. P. 37.3(c).

Hickman and Hays, JJ., dissent.

Steele Hays, Justice,

dissenting. This petition asserts that defense counsel did not interview any of the witnesses for the defense or the state and failed to interview Stewart’s brothers who would have testified that Stewart was with them at the time of the burglary; that counsel failed to move to suppress an oral confession and failed to file a discovery motion to obtain statements given to the police. The petition alleged that members of Stewart’s family and “hospital personnel” could have testified that Stewart’s injuries were more consistent with “a car injury” than might have been incurred in a burglary.

The trial court ruled the petition contained only broad conclusory statements alluding to unnamed witnesses, with no attempt to show how the verdict might have been affected by these alleged failures. It held that Stewart had not shown how counsel’s representation failed to measure up to an objective standard of reasonableness or that, but for the failures, the results would have been different.

Stewart has provided no facts beyond his own assertions that witnesses, not one of whom is identified, would in some undisclosed fashion, have aided his defense. This will not suffice. We have held repeatedly that allegations which are not supported by facts will not justify an evidentiary hearing on post-conviction relief. Urquhart v. State, 275 Ark. 486, 631 S.W.2d 304 (1982).

Even the assertions that Stewart’s brothers would have testified that he was with them at the time of the burglary, or that hospital personnel could have testified that the injuries were more consistent with an automobile accident, do not suffice to reopen a trial three years after the fact. Such allegations must be established by clear and convincing proof Blackmon v. State, 274 Ark. 202, 623 S. W.2d 184 (1981),.and, to be even minimally adequate, must provide specific and detailed information from which it can be reasonably inferred that material and credible evidence could have been presented at trial but was not, due to the professional lapses of defense counsel. Smith v. State, 290 Ark. 90, 717 S.W.2d 193 (1986); Henry v. State, 288 Ark. 592, 708 S.W.2d 88 (1986); Walker v. State, 277 Ark. 284, 641 S.W.2d 19 (1982). Moreover, counsel is presumed to have performed competently, and the petitioner must overcome this presumption in a convincing fashion. Blackmon v. State, supra; Edwards v. United States, 256 F.2d 707 (D.C. Cir. 1958), cert. denied, 358 U.S. 847 (1958).

The majority opinion observes that Stewart’s failure to identify the hospital personnel may be due to his not knowing who they are. It is not just the absence of names, but the absence of any specific information from which to weigh the substance of the allegations. If Stewart’s brothers were with him at the time of the burglary, as he alleges, is it too much to ask that he specify where they were and what they were doing and when they were together? Moreover, Stewart knows why he was hospitalized for treatment, and he knows what the state’s proof was on that score. He can provide in his petition or by affidavits how the injury for which he was treated was inconsistent with the state’s theory. If, as he suggests, his injury was incurred in an automobile accident, he can provide the specifics of that incident as to when and where it occurred and who else was involved. A copy of the police report would at least assure us that there was in fact an accident. He tells us nothing beyond a patently conclusory assertion.

Three cases in which we granted evidentiary hearings under A.R.Cr.P. Rule 37 illustrate the difference between allegations which make a substantial showing of merit and those which are merely conclusory:

1) In Rasmussen v. State, 280 Ark. 472, 658 S.W.2d 867 (1983) , the petition alleged that after being sentenced to life imprisonment on a murder charge, Ms. Rasmussen learned that the prosecutor had offered to recommend a fifteen year sentence upon a plea of guilty. She contended her attorney never communicated the offer to her. Accompanying her petition was an affidavit of the deputy prosecutor attesting to the fact that the offer had, in fact, been made. We granted an evidentiary hearing to determine whether the offer had been rejected by counsel without consulting the accused.

2) In Lascano v. State, 282 Ark. 501, 669 S.W.2d 453 (1984) , Ms. Lascano alleged that she declined to testify at her murder trial for fear of her own safety and the safety of her daughter. She claimed to have been beaten by two men who were friends of a man with whom she was involved and whose wife she was accused of having killed. Her claims were supported by the affidavit of her attorney acknowledging his belief that she was in fact threatened as claimed which had prompted him to try to withdraw from the case when Ms. Lascano refused, for the reasons stated, to testify in her own behalf. We granted the hearing to determine whether counsel’s failure to explain to the trial court these reasons for his attempted withdrawal operated to deprive the accused of effective assistance.

3) In Owens v. State, 292 Ark. 292, 729 S.W.2d 419 (1987), following a conviction for rape, Owens contended he told his attorney the first time they conferred at the county jail (a week before the trial) that J.C. Cash, Arthur Cash, Carl Stewart and Osie Jones were with him and the victim at the time of the alleged rape. He maintained the the prosecutrix, who was deaf, wrote him several notes offering to have sex in return for money and drugs. He contended that the victim was not held at the house against her will, as she claimed; in fact she and Osie Jones left at one point to get more beer; that in all some thirty to thirty-five notes were exchanged, some of which would have verified Owen’s claims. Several of the notes were recovered and introduced but the bulk were missing, the house having been ransacked. Owens alleged that had counsel acted sooner in his defense the notes would have been retrieved. We granted an evidentiary hearing to determine whether the four men should have been subpoenaed and whether counsel had acted with diligence in preparing Owen’s defense.

In all of the foregoing cases specific facts were provided in sufficient detail that the allegations could not be labelled conclusory. In contrast, Stewart has wholly failed to provide more than general allegations, unsupported by either details or independent verification of his own assertions. Petitioner’s “witnesses” are not identified except in general, and no facts are provided as to when they were with the defendant, or where, or how such proof, if credible, would refute evidence offered by the state. Lomax v. State, 285 Ark. 440, 688 S.W.2d 283 (1985); Rawls v. State, 264 Ark. 954, 581 S. W.2d 311 (1979). Even if the petition were more specific in these details, it would still be necessary to show that the decision not to call such witnesses went beyond the scope of trial strategy. In Tackett v. State, 284 Ark. 211, 680 S.W.2d 696 (1984), we said:

It is well settled that the decision to call certain witnesses and reject other potential witnesses is largely a matter of trial strategy. Counsel must use his own best judgment to determine which witnesses will be beneficial to his client. See Hayes v. State, 280 Ark. 509, 660 S.W.2d 648 (1983).

Finally, it is necessary that a Rule 37 petitioner show how he was prejudiced by the alleged omissions of defense counsel. Urquhart v. State, supra; Blackmon v. State, supra. Stewart has not even alleged that he was prejudiced, much less made any attempt to show that the outcome of his trial would probably have been different. Strickland v. Washington, 466 U.S. 686 (1984); Mason v. State, 289 Ark. 299, 712 S.W.2d 275 (1986). I would affirm the trial court.

Hickman, J., joins this dissent.


author: Tom Glaze, Justice.

text:
    Ewing CLINE, et ux, et al. v. CITY OF CLARKSVILLE, et al.
    87-286
    746 S.W.2d 56
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988

      Gardner, Gardner & Hardin, by: Richard E. Gardner, Jr., for appellants.

      Woolsey & Wilson, by: Bruce R. Wilson, for appellees.
   Tom Glaze, Justice.

This is a zoning case in which the appellants own houses on three adjacent lots located in an unnamed subdivision in the City of Clarksville. Appellants’ lots are zoned residential and are on the east side of Edgewood Street. The property owners (hereafter petitioners) who live on the west side of Edgewood petitioned the Clarksville Planning and Zoning Commission to rezone their lots from residential to commercial. The Commission rejected the request, but in an appeal by the petitioners to the Clarksville City Council, the Council approved the rezoning by a three-to-two vote. The Johnson County Chancery Court subsequently upheld the Council’s action which led to this appeal; the appellants contend the chancellor erred (1) in holding that the decision of the appellee was not arbitrary and capricious; and (2) in deciding the appellants were not entitled to damages as a result of the rezoning. We affirm.

Our review in zoning cases is guided by the rule that the right to and responsibility for classifying the various areas in the city are with the zoning authorities, and their decision will only be disturbed if it is shown that they acted arbitrarily. City of Little Rock v. Parker, 241 Ark. 381, 407 S.W.2d 921 (1966). Stated in other terms, the chancellor is required to consider whether there was any reasonable basis upon which the city council could base its zoning ruling or decision. City of Little Rock v. Breeding, 273 Ark. 437, 619 S.W.2d 664 (1981). It is also settled law that there is a presumption that the city council acted in a reasonable manner when it either zoned or refused to zone the property, and the burden is on the landowner to show otherwise. Id.

Here, we believe the evidence supports the chancellor’s decision to affirm the rezoning of the disputed area from residential to commercial, and while the choice was a difficult one, the decision of the Clarksville City Council, the appellee here, was informed and reasoned. The record reflects that the petitioners seeking commercial zoning were prompted to do so by parties who intend to build a new Wal-Mart store on the petitioners’ lots. A small commercially-zoned area immediately west of the petitioners’ lots includes an existing Wal-Mart store, a Piggly-Wiggly store, a Pizza Hut, a movie store and a car dealership. The appellants’ view of that commercial area is obscured only by a narrow strip of trees that are on the backside of petitioners’ properties. It is noteworthy that this commercial zone (and some of the businesses) existed when the appellants purchased their lots. Two additional business establishments are located on a lot which is situated at the corner of Edgewood and Sherwood Drive streets and which abuts the petitioners’ properties at their north boundary. Unquestionably, the petitioners’ lots are situated in an area of commercial development.

When deciding whether petitioners’ properties should be zoned commercial, appellee also considered the areas east of Edgewood Street that surround appellants’ lots. In doing so, appellee noted that appellants’ lots were bounded on the east by county property, which is not zoned at all. Appellee also pointed to a bowling alley establishment located north of appellants’ properties and, south of their properties, to an industrial area situated just beyond a wooded tract. To get to the appellants’ properties, a person must turn east off Highway 103 South onto Sherwood Drive and then turn south onto Edgewood, which is a dead-end street that separates the appellants’ and petitioners’ properties. In traveling this route, one passes a Chevrolet dealership, two retail stores and a commercially-zoned lot to the south, a branch bank, a movie store, a beauty shop, a bowling alley and another commercially-zoned lot to the north.

From the foregoing evidence, we can only conclude that the appellee had a reasonable basis upon which it rezoned the petitioners’ properties to commercial. Commercial growth surrounded the properties to be rezoned, and the appellants were well aware of the potential growth west of them, since some businesses were already established when the appellants purchased their lots. Even before the petitioners sought commercial zoning of their lots, appellants knew that property to their north had been zoned commercial. They were also aware that two retail businesses were in operation across the street from appellants’ properties at the corner of Edgewood and Sherwood Drive streets. These considerations, along with the fact that an industrial area was south of appellants’ properties and an unzoned county property abutted their lots to the east, were sufficient to support the chancellor’s finding that the appellee’s rezoning of petitioners’ lots was not arbitrary and capricious.

In their second point for reversal, appellants, citing First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California,_U.S._, 107 S. Ct. 2378 (1987), argue that the appellee’s decision to rezone the petitioners’ properties actually resulted in an inverse condemnation of appellants’ lots. Appellants urge us to remand this cause to the chancellor with directions to transfer the matter to the circuit court to determine the damages they sustained as a result of the appellee’s actions. Appellants’ argument is without merit.

Appellants’ reliance on the holding in First English is misplaced. There, Los Angeles County adopted an ordinance prohibiting the construction or reconstruction of any building or structure in an interim flood protection area that included a campground owned by the First English Evangelical Church of Glendale. The church claimed that the ordinance denied the church the use of its campground and sought damages in inverse condemnation for such loss of use. Here, unlike in First English, the appellee’s zoning action regulated the petitioners’ properties, not the appellants’. Although the appellants claim their lots have decreased in value because the appellee rezoned the petitioners’ lots to commercial, appellants’ use of their properties remains residential; therefore, their use of the properties has not been denied or taken from them.

The appellee, on the other hand, was required to give due consideration to the petitioners’ request to rezone their lots which are bounded on two sides by commercially-zoned property. See City of Helena v. Barrow, 241 Ark. 654, 408 S.W.2d 867 (1966); City of Little Rocky. McKenzie, 239 Ark. 9, 386 S.W.2d 697 (1965). In considering and weighing all the factors that reflect the commercial nature and growth of the area that adjoins and surrounds the petitioners’ properties, we must agree with the chancellor that the appellee’s decision to rezone these properties to commercial was reasonable.


text:
    Michael O’ROURKE v. STATE of Arkansas
    CR 87-17
    746 S.W.2d 52
    Supreme Court of Arkansas
    Opinion delivered March 14, 1988
    [Rehearing denied April 18, 1988.]

      Witt Law Firm, P.C., by: Ernie Witt, for appellant.

      Steve Clark, Att’y Gen., by: Jack Gillean, Asst. Att’y Gen., for appellee.
   Tom Glaze, Justice.

Appellant was convicted of the capital murder of his parents, Beulah and Francis O’Rourke, which occurred in July, 1983. The trial was held in Yell County, Dardanelle District, and the jury imposed the death sentence. On appeal, appellant argues the trial court erred (1) in denying the appellant’s motion for a change of venue; (2) in sentencing the appellant; and (3) in instructing the jury of pecuniary gain as an aggravating circumstance. Appellant also claims there was no substantial evidence to support the jury’s finding of no mitigating factors in the sentencing phase. Having reviewed these points of error along with other objections as required by Rule 36.24, A.R.Cr.P. and Ark. Sup. Ct. R. 11 (f), we find no reason to reverse and, therefore affirm the appellant’s conviction.

Concerning his venue argument, appellant moved for a change of venue under Ark. Code Ann. §§ 16-88-201 and -204 (1987), stating he could not receive a fair and impartial trial in either district of the county. To support his motion, he included the affidavits of Tommie Foster, Evelene Miller, and Connie Tillman, who were registered and qualified electors of the Dardanelle District of Yell County.

In order to prevail on his motion, the appellant, under § 16-88-201, was required to show that the minds of the inhabitants of the county in which the cause is pending are so prejudiced against the defendant that a fair and impartial trial cannot be had in that county. See also Richardson v. State, 292 Ark. 140, 728 S.W.2d 189 (1987); Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986). The affidavits submitted by the appellant failed to show such prejudice for two reasons: (1) the three affidavits failed to allege prejudice was county-wide, and instead stated that a fair trial could not be had in the Dardanelle district; and (2) while the affiants in their affidavits alleged prejudice in the Dardanelle district, their later testimony belied their earlier allegations of prejudice. For instance, Foster testified that she did not read the affidavit she previously had signed, and Miller and Tillman both testified that they did not have any opinion as to the prejudice in the community as a whole. In addition to the deficiencies found in appellant’s proof offered in support of his motion, the state produced several witnesses who testified that the appellant could get a fair trial in Yell County.

The appellant also claims the seating of the jury itself illustrated prejudice against the appellant. Appellant points out that seventeen out of forty-nine prospective jurors (or approximately 34 percent) were excused by the court, because they had formed some opinion of the guilt or innocence of the appellant. However, appellant cites no cases, and we know of none, that have held that actual bias is said to exist in the community when a certain number of jurors are excused. While the judge found it necessary to excuse some of the prospective jurors, a jury of twelve was seated, and the jurors stated that they had not formed an opinion about the appellant’s guilt or innocence and would make their decisions based only on the evidence heard in the trial.

As we previously have stated, there can be no error in the denial of a change of venue if an examination of the jury selection shows that an impartial jury was selected and that each juror stated he or she could give the defendant a fair trial and follow the instructions of the court. Berry, 290 Ark. 223, 718 S.W.2d 447. We conclude that the record before us reflects that a fair and impartial jury was seated by the trial judge, and the judge did not abuse his discretion in denying appellant’s motion. Richardson, 292 Ark. at 141-42, 728 S.W.2d at 191.

Appellant next argues that the jury’s finding that no mitigating factors existed was not supported by the evidence and that the jury should have at least found that the crime was committed while he was under extreme mental or emotional disturbance. We cannot agree. In Miller v. State, 269 Ark. 341, 605 S.W.2d 430 (1980), we held that it is a matter of judgment whether the facts support the jury’s findings as to the issues of aggravating and mitigating circumstances, but we will not substitute our judgment for that of the jury that heard the evidence if there is a reasonable and understandable application of the facts to the statutory requirements. In applying that rule to the facts here, we discover at trial the appellant and the state presented conflicting expert testimony concerning appellant’s mental state. Dr. Stevens, a clinical psychologist, opined that appellant suffered an extreme mental disturbance at the time the crime was committed, but the state’s psychiatrist, Dr. Kaczenski, testified that, while appellant may have suffered from a severe personality disorder when the crime was committed, appellant was not out of touch with reality and knew the difference between right and wrong. In hearing this conflicting testimony, the jurors could, and obviously did, reasonably believe that appellant was capable of appreciating the wrongfulness of his conduct and was capable of conforming that conduct to the requirements of the law. Id. at 357-58, 605 S.W.2d at 440.

Appellant further contends the trial court erred in denying appellant’s motion to postpone the sentencing proceeding and to order an evaluation of appellant’s fitness to be sentenced. This contention has no merit.

Appellant, on three occasions, had been committed to the State Hospital for evaluation and on the first two occasions, he was found unfit to stand trial. On the third evaluation, he had recovered and was determined fit to proceed to trial. After having been found guilty of murder and having received the verdict which recommended the death penalty, the appellant requested that the trial court make another determination as to appellant’s fitness to proceed with sentencing, but the court refused. Appellant argues that, under the mandatory language of Ark. Code Ann. § 16-86-111 (1987), the trial court was required to postpone sentencing and to commit the appellant for observation and testing upon the appellant’s counsel’s request for evaluation alleging that appellant was incapable of understanding the proceedings. Section 16-86-111 superseded Ark. Stat. Ann. § 43-1303 (Repl. 1977), but the terms and requirements in both statutes are almost identical. In sum, both provisions provide that a hearing shall be held in the manner provided by law in any case in which the insanity of the defendant is alleged as a ground for postponing or not carrying out the execution of any sentence imposed as a part of the defendant’s conviction.

We construed § 43-1303 in our earlier holding of Murphy v. State, 248 Ark. 794, 454 S.W.2d 302 (1970), and held that when insanity is claimed as a ground for postponement of sentence, the trial court is empowered to exercise its discretion. In Murphy, we were unable to say the trial court abused its discretion in denying the defendant’s oral motion that the proceedings be postponed until a further mental examination could be conducted. Upon our review of the record, we believe the same holding is required here. In making his oral motion, counsel for appellant simply claimed that appellant was unfit to be sentenced and failed to recite any facts or circumstances to support his claim. The state previously had presented evidence that refuted appellant’s insanity defense, and, in fact, Dr. Kaczenski testified that appellant was capable of assisting his attorney, but chose not to do so. Kaczenski explained that appellant was trying to manipulate the system by refusing to consult with counsel; he related that the appellant told him, “I could help my attorney, but I’ve decided I’m not going to say a word. I’m just not.”

Based on the record before us, we cannot agree with appellant’s contention that the trial court was mandated to commit appellant for a fourth evaluation. To the contrary, the trial judge was very much aware of appellant’s insanity defense during the three-year period this matter was pending against the appellant, and the judge properly had the appellant evaluated each time the facts warranted it. Appellant’s last request for an evaluation was supported by nothing more than a bare allegation; on the other hand, the actual facts reflect appellant’s request was nothing more than a manipulative attempt to avoid the sentencing. We believe the trial court was correct in denying appellant’s motion.

Finally, the appellant, relying on Collins v. Lockhart, 754 F.2d 258 (8th Cir.), cert. denied, 106 S. Ct. 546 (1985), asserts he was denied due process. He argues his death sentence is invalid because the trial court instructed the jury on pecuniary gain as an aggravating circumstance and this aggravating circumstance, in violation of the eighth amendment, improperly duplicated an element of the robbery/murder offense with which he was convicted. This double-counting issue in capital murder cases was resolved by the Supreme Court’s recent decision in Lowenfield v. Phelps, — U.S--, 108 S. Ct. 546 (1988). There, Lowenfield was sentenced to death by the Louisiana state courts, and he contended his sentence violated the eighth amendment because the single aggravating circumstance found by the jury, and upheld by the Louisiana Supreme Court, merely duplicated an element of the underlying offense of first-degree murder of which he was convicted at the guilt stage. In sum, the jury convicted Lowenfield under Louisiana’s first-degree-murder statute, finding he had the specific intent to kill or to inflict great bodily harm upon more than one person. This element found in convicting Lowenfield of first-degree murder was the same as the one the jury found as the sole aggravating circumstance, which under Louisiana law, allowed the jury to impose the death sentence.

The Supreme Court in Lowenfield stated that, to pass constitutional muster, a capital-sentencing scheme must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder. The Supreme Court, in upholding Louisiana’s sentencing scheme, explained the constitutionally-required-narrowing procedure as follows:

It seems clear to us from this discussion that the narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. See also Zant, supra, at 876, n. 13, discussing Jurek and concluding, “in Texas, aggravating and mitigating circumstances were not considered at the same stage of the criminal prosecution.”
Here, the “narrowing function” was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that “the offender has a specific intent to kill or to inflict great bodily harm upon more than one person. ” The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally-required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. (Emphasis added.)

Lowenfield,_U.S. at_, 108 S.Ct. at 555.

As was the case with Louisiana’s death-penalty law which was considered in Lowenfield, the duplicative nature of Arkansas’s statutory aggravating circumstance did not render the appellant’s sentencing infirm since the constitutionally-mandated-narrowing function was performed at the guilt phase. The Constitution does not require an additional aggravating circumstance finding at the penalty phase.

Because we find no reversible error, we affirm.

       Originally, appellant included five affidavits, but he withdrew two of the affidavits at the hearing on the motion because they were from the Danville District of Yell County.


author: Jack Holt, Jr., Chief Justice.

text:
    Dewey ALLEN, Cleve Bond, and J.C. Cole v. MALVERN COUNTRY CLUB, et al.
    87-341
    746 S.W.2d 546
    Supreme Court of Arkansas
    Opinion delivered March 21, 1988

      James C. Cole, for appellants.

      William C. Gilliam, for appellee Malvern Country Club; Glover, Glover & Roberts, by: Mark Roberts, for appellee Ed Howard; and Chris E. Williams, for appellee Clyde Gibbons.
   Jack Holt, Jr., Chief Justice.

Appellants Dewey Allen, Cleve Bond, and J. C. Cole, as members and purported stockholders of the appellee Malvern Country Club (“the Club”), brought suit to enforce stockholders’ rights against the Club and certain of its officers. The Club, a non-profit corporation, filed an answer which in part relied on the defense that nonprofit corporations as a matter of law cannot issue stock and therefore do not have stockholders. Appellants filed a motion to strike that defense from the Club’s answer. The motion was denied by the chancellor on the grounds that the defense was valid despite provisions for the issuance of stock in the Club’s articles of incorporation and notwithstanding that shares of stock had been sold. Appellants declined to proceed further, whereupon the court entered an order dismissing the suit. This appeal followed.

Appellants argue that: (1) a 1956 circuit court order approving incorporation of the Club pursuant to its articles of incorporation precluded relitigation of the issue of whether the Club had the power to issue stock; (2) principles of corporate law together with the statutes in effect in 1956 support the Club’s issuance of stock; (3) application of the 1963 Arkansas Nonprofit Corporation Act, which mandates that non-profit corporations cannot issue shares of stock, deprives appellants of due process and the right to property, or, in the alternative, the Act contains a “grandfather” clause by which the Club’s original articles of incorporation remain valid even under the new law; and (4) once the Club sold stock pursuant to the contractual relationship created by the articles of incorporation and accepted the proceeds of such sales from appellants and others similarly situated, the Club could not assert as a defense that its actions in that regard were ultra vires.

The posture of this case is such that we find appellants have elected to stand upon the single issue of whether the Malvern Country Club has “stockholders.” Because we agree with the chancellor’s conclusion that as a matter of law the Club could not issue stock and therefore did not have stockholders, dismissal of the suit was proper.

In 1956, a petition for incorporation was filed with the Hot Spring County Circuit Court requesting that the court enter an order incorporating the Malvern Country Club as a nonprofit corporation — the object and purpose of the Club being to promote the pleasure, recreation, and bodily health of its members by means of a private country club. The petition, which was approved by the circuit court, included a proposed constitution which contained articles of incorporation. In relevant part, article five provided:

STOCK CERTIFICATE HOLDING MEMBERS: 200 members may be elected to membership in this class upon payment of a stockholder’s fee of $350.00. This class will constitute the sole voting membership of the Club. A certificate of stock shall be issued, entitling the holder thereof to all the privileges of the Club upon such terms and conditions as may be prescribed by the By-Laws, and further entitling such members to share in the property or assets of the organization

The articles of incorporation also provided for additional classes of members not authorized to own stock. Appellant J. C. Cole was a charter member and stockholder. The remaining appellants were stockholders.

At the time of incorporation, Ark. Stat. Ann. §§ 64-1301 — 64-1308 (1947) governed benevolent associations including those organized for the promotion of bodily or mental health. Those sections have been superseded. Nonprofit corporations such as the Club are now governed by the 1963 Arkansas Nonprofit Corporation Act, which was originally codified at Ark. Stat. Ann. §§ 64-1901—64-1921 (Repl. 1980) but is now found at Ark. Code Ann. §§ 4-28-201 — 4-28-206 and 4-28-209—4-28-223 (1987).

Sometime in 1969, the Club filed its articles of incorporation with the Secretary of State pursuant to the new Act. In May 1987, allegedly without notice to several stockholders, certain amendments to the articles of incorporation were proposed and adopted by the Club’s members, some of whom did not hold shares of stock. In June 1987, appellants filed the underlying action seeking a declaration of their rights as stockholders and for other relief.

A review of superseded sections 64-1303 — 64-1308 reveals absolutely no authority for the issuance of stock by nonprofit corporations such as the Club. Conversely, those statutes which at the time of the Club’s incorporation were applicable to general business corporations specifically made provision for the issuance of stock. See Ark. Stat. Ann. §§ 64-201—64-224 (1947). In Chamber of Commerces. Barton, 195 Ark. 274, 112 S.W.2d 619 (1937), this court emphasized that the statutes governing business corporations do not cover corporations organized under the sections governing benevolent associations (nonprofit corporations), which we described as:

organizations . . . formed without capital stock, [and] operated not for a livelihood and not for profits, but solely as a means of enhancing or promoting the general welfare in some particular kind or class of activity.

Turning to the 1963 Arkansas Nonprofit Corporations Act, section 4-28-203 provides that the Act shall be applicable to all corporations organized thereunder and all not-for-profit corporations formerly organized under any act repealed by the new law. Section 4-28-202 defines a not-for-profit corporation as one “no part of the income of which is distributable to its members, directors, or officers,” and section 4-28-219 specifically sets out that shares of stock and dividends are prohibited.

(a) A [nonprofit] corporation shall not have or issue shares of stock.
(b) No dividend shall be paid and no part of the income of a [nonprofit] corporation shall be distributed to its members, directors or officers.

As such, neither under the statutes in effect at the time of incorporation nor under the statutes which now govern non-profit corporations is there any statutory authority for the issuance of stock by entities such as the appellee Club. That result is in accordance with the general rule that nonprofit corporations simply do not issue stock and therefore have members rather than stockholders. 18A Am. Jur. 2d Corporations § 184 (1985).

In an attempt to avoid the proscriptions of the 1963 Act, appellants call our attention to section 4-28-204, which provides:

(a) The provisions of [this Act] shall in no way affect any nonprofit corporation chartered under and in accordance with the laws of this state existing prior to [the effective, date of this Act].
(b) Any such nonprofit corporation organized prior to [the effective date of this Act] and which has not filed a copy of the order or action whereby they were granted corporate status under the then existing law may file a certified copy of the order or action. . . with the Secretary of State of Arkansas, and such filing shall evidence the incorporation and shall entitle the organization to recognition of its legal status, the same as one formed under the provisions of this Act.

Appellants argue that under section 4-28-204(a), the Act would not affect corporations chartered under preexisting statutes. Subsection (a), however, explicitly requires that such corporations originally be chartered in accordance with the laws of this state prior to the effective date of the new Act. It is clear that the Club was not chartered in accordance with the statutes in effect at the time of incorporation as those statutes did not give entities such as the Club the power to issue stock. We reach the inescapable conclusion that there is not now, nor has there ever been, statutory authority for the issuance of stock by the appellee Club.

Corporations organized under the laws of this state are but creatures of the legislature, Arkansas Stave Company v. State, 94 Ark. 27, 125 S.W. 1001 (1910), and the legislative power to create corporations cannot be delegated to the courts. 18A Am. Jur. 2d Corporations § 151 (1985). Hence, we find no support for appellants’ argument that court approval in 1956 of provisions for the issuance of stock in the Club’s articles of incorporation, absent statutory authority therefor, in any way validated the stock.

The laws of a particular state which grant or restrict the powers of a corporation become part of the articles of incorporation or charter of that corporation. Arkansas Stave Co., supra. Anyone seeking to obtain the benefit of provisions within such articles of incorporation or charter takes that benefit with the burdens prescribed by the relevant statutes, and if there is a conflict between the charter and the statutes under which the charter was issued, the charter must yield to the laws of the state. 18A Am. Jur. 2d Corporations §§ 73—76 (1985).

Much like the power to create the corporate status, the power to create corporate stock is a legislative function which must be exercised for such stock to have legal existence; the power to issue stock must be specifically granted by the statutes under which a corporation is formed, which results in the rule that the power to issue stock is not held to be among the incidental or implied powers of a corporation. 11 W. Fletcher, Cyclopedia of the Law of Private Corporations § 5153 (rev. perm. ed. 1986); 18A Am. Jur. 2d Corporations § 485 (1985). As such, we reject appellants’ contention that the issuance of stock was incidental to the purpose of the Club or that it was an implied power of the Club.

The inevitable consequence of the absence of specific statutory authorization for the issuance of stock is that, by law, such stock is void, confers no rights on the person to whom issued, and creates no liabilities; the rule of voidness applies to disputes between shareholders or between shareholders and the corporation. Id. at § 509; W. Fletcher, supra, at § 5167. In light of the foregoing, application of the 1963 Act can work no deprivation of property since the stock at issue was void from the outset. Equally, there is no merit to the argument that having accepted the benefits of the sale of its stock, the Club was precluded from asserting that its issuance of stock was ultra vires. The sale of stock was — like the stock itself — completely void for lack of statutory authority, not merely ultra vires, and no rights or liabilities were created thereby.

Finally, while the principle of estoppel might apply to corporations having the power and authority to issue stock pursuant to the laws of the state:

where there is an inherent lack of power in the corporation to issue the stock, neither the corporation, nor the person to whom the stock is issued, is estopped to question its validity, since an estoppel cannot operate to create stock which, under the law, cannot have existence ....

W. Fletcher, supra, at § 5169.

Affirmed.


author: Jack Holt, Jr., Chief Justice. Steele Hays, Justice,

text:
    Ralph BUSSARD v. STATE of Arkansas
    CR 87-170
    747 S.W.2d 71
    Supreme Court of Arkansas
    Opinion delivered March 21, 1988

      Larry Dean Kissee and Carmack Sullivan, for appellant.

      Steve Clark, Att’y Gen., by: Joseph V. Svoboda, Asst. Att’y Gen., for appellee.
   Jack Holt, Jr., Chief Justice.

The appellant, Ralph Bussard, was found guilty of capital murder and attempted capital murder. He argues six points for reversal. We find that the trial court erred in not suppressing a custodial statement and reverse and remand for a new trial.

Arthur Garner was murdered at the Motorport Motel near Hardy, Arkansas, which he and his wife, Florence Garner, operated. She testified that they were asleep in their bedroom on August 28, 1981, when someone rang the office doorbell at approximately 1:00 or 2:00 a.m. Her husband put on his trousers, got his gun, and went to the front office, which was directly in front of the bedroom. When he opened the door, one of the men pushed him into the bedroom. Because it was dark, Mrs. Garner could not identify any of the men, but she did see a shadow at the bedroom door and a shiny object pointed at her and Mr. Garner. Subsequently, a number of shots were fired which wounded Mrs. Garner and killed her husband, who was found lying facedown near the bedroom doorway.

On August 29,1981, Bussard was taken into custody by the Springfield, Missouri, police while he was being treated for a gunshot wound at a local hospital. He was later convicted of an unrelated crime in Missouri and imprisoned there. On September 1,1981, he was charged by Arkansas felony information with the murder of Arthur Garner. A detainer was placed upon him, and he was returned to Arkansas on July 9, 1982.

I. CUSTODIAL STATEMENT

While imprisoned in Missouri, Bussard retained Mr. Charles LeCompte, an attorney, to defend him on the Arkansas charges. The record reflects that LeCompte participated in the initial stages of the Arkansas proceedings. On September 24, 1982, while he was incarcerated in the Sharp County Jail, Bussard requested to make a telephone call. He was taken to the private office of the sheriff, T.J. Powell. After Bussard had finished making his call, Powell initiated a conversation by asking Bussard if he was ready to talk about the crime. Bussard then signed a rights waiver form and a handwritten inculpatory statement prepared by Powell placing Bussard at the scene of the murder. Prior to trial, Bussard’s present attorney, Larry Kissee, filed a motion to suppress the statement on the basis that it was taken in violation of the accused’s fifth and sixth amendment rights. The trial court denied this motion. Bussard argues that this was prejudicial error. We agree.

The United States Supreme Court in Edwards v. Arizona, 451 U.S. 477 (1981), established the following “bright line” rule based upon the fifth amendment privilege against compelled self-incrimination: An accused in custody, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. See also Smith v. Illinois, 469 U.S. 91 (1984). We have followed Edwards. Hughes v. State, 289 Ark. 522, 712 S.W.2d 308 (1986); Hendrickson v. State, 285 Ark. 462, 688 S.W.2d 295 (1985); Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984). The Edwards rule embodies two distinct inquiries. First, courts must determine whether the accused actually expressed his desire for or clearly asserted his right to counsel. Smith v. Illinois, supra. “Second, if the accused invoked his right to counsel, courts may admit his responses to further questioning only upon finding that he (a) initiated further discussions with police, and (b) knowingly and intelligently waived the right he had invoked.” Id.

In Michigan v. Jackson, 475 U.S. 625 (1986), the Court applied Edwards in the sixth amendment context. In Michigan v. Jackson, respondent Jackson requested appointment of counsel at an arraignment. The next day, before Jackson had an opportunity to consult with his attorney, two police officers initiated a conversation with him to confirm that he was the person who shot the victim. After the officers read him his Miranda rights and he agreed to proceed without counsel, Jackson confessed. The Court, in affirming the Michigan Supreme Court’s suppression of the confession, held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.”

After Bussard has been charged by felony information for the murder of Arthur Garner, he asserted his right to counsel by retaining Mr. LeCompte to defend him. Although Bussard did not claim this right at an arraignment or similar proceeding as in Michigan v. Jackson, we find the prophylactic rule of Edwards is equally applicable when an accused employs an attorney after formal charges have been brought against him, especially, as in this case, where the authorities were fully aware that the defendant was represented by counsel. The sixth amendment guarantees an accused, at least after the initiation of formal charges, the right to rely on counsel as a medium between himself and the state. Michigan v. Jackson, supra.

Inasmuch as the sheriff initiated communication or conversation with Bussard, Bussard’s subsequent waiver was invalid and his confession inadmissible. We reverse and remand for a new trial.

II. ISSUES ON REMAND

Since we are remanding this case, we will address issues that the appellant has raised and are likely to arise on retrial.

A. PHYSICIAN-PATIENT PRIVILEGE

Bussard was admitted to a hospital in Springfield, Missouri, in the early morning hours of August 28, 1981, for a gunshot wound. In a surgical procedure, Dr. Ruff removed a bullet from Bussard’s chest. This bullet was later identified at trial as having been fired from a pistol found under the body of Mr. Garner at the murder scene. Bussard contends that Dr. Ruff’s testimony concerning the surgery and the bullet removed from his chest was inadmissible because of certain physician-patient privileges under Missouri statutes.

It is well settled that the admissibility of evidence is governed by the law of the forum state. Brotherhood of R.R. Trainmens. Long, 186 Ark. 320, 53 S.W.2d 433 (1932); Leflar, Conflict of Laws, § 177 (1938); Restatement of Conflicts of Law § 597 (1934). Thus, Arkansas, not Missouri, law applies. Ark. R. Evid. 503 provides in pertinent part as follows:

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of his physical, mental, or emotional condition ....

Since the doctor’s testimony did not concern any communications made for the purpose of diagnosis or treatment of Bussard’s physical, mental, or emotional condition, it is admissible on remand. Baker v. State, 276 Ark. 193, 637 S.W.2d 522 (1982).

B. PHOTOGRAPHS

Bussard argues that the trial court erred in admitting into evidence three inflammatory photographs taken at the crime scene. The first photograph in question depicts a small portion of the head of the victim, who is lying near the bedroom doorway. The second photograph shows the victim in the same position with multiple gunshot wounds. The third photograph, which is very similar to the second, portrays the victim as well as the pistol which was found under the victim’s body.

A trial court’s decision to admit photographs will not be set aside absent a manifest abuse of discretion. Fitzhugh v. State, 293 Ark. 315, 737 S.W.2d 638 (1987). Inflammatory photographs are admissible if they tend to shed light on any issue, enable a witness to better describe the objects portrayed, permit the jury to better understand testimony, or corroborate testimony. Watson v. State, 290 Ark. 484, 720 S.W.2d 310 (1987). All three photographs corroborate the testimony as to the physical layout of the murder scene. Additionally, the third photograph corroborates the testimony concerning the location of the gun found under the victim’s body. Accordingly, the trial court did not abuse its discretion by admitting the photographs into evidence.

C. EVIDENCE OF PRIOR ACTS

Bussard contends that the trial court erred in allowing into evidence testimony of other alleged acts of misconduct in violation of Ark. R. Evid. 404(b). On direct examination, the prosecutor asked witness Dorothy Hudson three times if Bussard had had a fight with an individual named “Baby Bob” the night before the murder. Hudson only answered the final question by stating, “I was told. . . .” Bussard’s attorney objected on hearsay grounds. The trial court sustained the objection. Since no evidence of the fight was admitted into evidence, Bussard’s contention has no merit.

Bussard further argues that the series of questions was highly prejudical and not relevant to the issues being tried. Since Bussard did not raise this issue below, we do not consider it. Stephens v. State, 293 Ark. 366, 738 S.W.2d 91 (1987).

D. HEARSAY TESTIMONY

Bussard argues that the trial court prejudicially erred by admitting into evidence hearsay testimony. While attempting to lay a foundation for the introduction of photographs depicting a bloodstained automobile, the prosecutor questioned Sheriff Powell concerning his knowledge of the vehicle shown in the photograph. The defense’s objection on the ground of improper authenticity was overruled, and the photographs were admitted into evidence. Powell then testified that he had personally observed the vehicle in Greene County, Missouri, on October 2, 1981, and that the photograph revealed blood under the backseat of the Bussard vehicle. The court sustained defense counsel’s objection to Powell’s testimony that the vehicle was Bussard’s. Thereafter, the prosecutor asked Powell, “Did you or another officer who shared information with you determine that was the Bussard vehicle?” Defense counsel objected because the question called for a hearsay response. The court overruled the objection, and Powell answered, “Detective Ivan Johnson with the Greene County Sheriffs Department”.

Powell’s testimony was hearsay and inadmissible. However, in this instance, any prejudice that may have resulted was cured by the subsequent testimony of Detective Johnson. Johnson identified the vehicle in the photographs in question as the one which Bussard had permitted him to search pursuant to a written waiver admitted into evidence in which Bussard stated that the vehicle belonged to him.

III. DISCOVERY

Bussard complains of the state’s non-compliance with our rules of discovery. The issue may not arise again on retrial, but it is nevertheless of such concern that we find it necessary to comment.

Early in the proceedings, Bussard filed a motion requesting disclosure by the state of materials subject to discovery pursuant to Ark. R. Crim. P. 17.1. The state made partial disclosures, noting in part, that physical evidence could be inspected in the Sharp County Sheriff’s Office and that photographs would be subject to viewing by contacting a state police investigator in Walnut Ridge (Lawrence County). Apparently this response proved unsatisfactory as Bussard filed another motion under Rule 17.1 asking for disclosure of specific materials and information, to which the state did not respond.

During the course of pretrial proceedings, Bussard’s attorney advised the court:

Judge, there’s been absolutely no discovery made in this case at all. I’ve had to go to the Court files and gather everything I can.

The prosecutor responded:

Well, it’s all in there. I mean, we’ve made discovery in the past, Your Honor, in reply to — I can see why that’s kind of a little odd, but we’ve had two different cases. We’ve had a jury trial in connection with Moss and every witness known to the State is listed in the Court files.

In reviewing the record, we surmise that the prosecutor is saying that the court files in the case of Moss, who was earlier tried and convicted in the same crime, contain all of the information and exhibits of the state’s case against Bussard, and that all disclosable materials are in the court files to which the appellant has access (it is admitted by the state that portions of the Moss file are a matter of trial records which are on file in this court). Referring the appellant’s attorney to other files relating to the state’s case against the appellant, which were located in various places, may be slightly akin to what is sometimes referred to as an open file policy. Even so, we have not given carte blanche approval of an open file policy as an acceptable substitute for disclosure. Merely because the prosecutor declares that the files in the case are open, it cannot be taken to mean that he has fulfilled his discovery obligations. See Earl v. State, 272 Ark. 5, 612 S.W.2d 98 (1981). As so aptly stated by the court of appeals in Dever v. State, 14 Ark. App. 107, 685 S.W.2d 518 (1985), “Arkansas Rules of Criminal Procedure, Rules 17.1 through 17.3, provide that the prosecution shall cooperate with the defense counsel and provide all discoverable material to the defense. Rule 17.3 requires the prosecutor to obtain any information held by other governmental agencies and provide it to the defense.” As in Dever, the prosecutor’s actions in this case fall woefully short of what is required by the rules of discovery. Since we reverse this case on other grounds, it is not necessary for us to decide whether the prosecutor’s failure to comply with the rules of discovery would also require reversal.

Reversed and remanded.

Hickman, Hays, and Glaze, JJ., dissent.

Steele Hays, Justice,

dissenting. In Edwards v. Arizona, 451 U.S. 477 (1981), the Supreme Court adopted the bright-line principle that an accused who has invoked his right to have counsel present during custodial investigation, or has expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities unless the accused himself initiates further conversations with the police. That rule, though well settled, has little relevancy to this case, however, because there is no proof the appellant ever invoked either his right to remain silent or his right to have counsel present before being questioned. In fact the appellant did not even testify at the suppression hearing, nor, for that matter, at trial.

The only witness at the suppression hearing was Sheriff Powell, and while he was aware that Mr. Charles LeCompte, a Springfield, Missouri, attorney, represented appellant, there was no proof that Mr. LeCompte ever had communicated with Sheriff Powell, or instructed him not to speak to appellant except through him. Thus, if appellant’s contention that his 5th and 6th amendment rights were violated is to prevail, it must be on the strength of Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404 (1986). The two cases are clearly distinguishable. In Jackson, the accused expressly requested the appointment of counsel at his arraignment on a murder charge, which was attended by the police officers involved in the investigation. Notwithstanding that explicit request, two police officers visited the accused the next morning at the jail and, after explaining his Miranda rights, obtained a confession from him. The accused was not told that counsel had been appointed, although he had inquired several times since his arraignment. On these facts the Michigan Supreme Court concluded that the Edwards rule applies by analogy to those situations where the accused requests counsel before the arraigning magistrate. “ ‘The police cannot simply ignore a defendant’s unequivocal request for counsel.’ ” Michigan v. Jackson, supra, citing People v. Bladel, 421 Mich. 39, 66-67, 365 N.W.2d 56, 69 (1984). The United States Supreme Court affirmed.

I have no quarrel with the decision in Michigan v. Jackson, but I think it is a mistake to extend it beyond its own facts and especially to the facts in this case. There is not the slightest indication that appellant had requested the appointment of counsel at arraignment, either here or in Missouri, or, for that matter how Mr. LeCompte came to represent him. Nor, as I have noted, is there any evidence that appellant informed anyone that he wanted to communicate only through LeCompte. The fact is Mr. LeCompte’s status in the case is something of a mystery. He was shown as receiving several information copies of filings by the state, and he approved a joint order dealing with trial scheduling, but he filed no motions and, significantly, never entered his appearance on behalf of the appellant nor was he even shown to be counsel of record. Yet, on that very ambiguous status the majority holds that Michigan v. Jackson prevents appellant from being asked in what seems to have been a thoroughly casual way if he wanted to discuss the case. I suggest that today’s decision will prove a boon to those who have easy access to the criminal defense bar but of little help to those who are dependent on court appointed counsel. 1 La Fave, Criminal Procedure, § 6.4(e) (1984). And see Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135 (1986), holding that 6th amendment right to counsel attaches at the time formal charges are initiated and not by virtue of an existing attorney-client relationship. “[A]s a practical matter it makes little sense to say that the Sixth Amendment right to counsel attaches at different times depending on the fortuity of whether the suspect or his family happens to have retained counsel prior to interrogation.” Id.

There is another, equally compelling reason to affirm. Even if the admission of the statement could somehow be regarded as error, it is clear there was no prejudice in this case. Appellant’s statement simply admitted he was with John Moss and R.B. Smith at the time of the robbery. But that fact was wholly undisputed. The defense called no witnesses. Appellant’s sister testified, with obvious reluctance, that immediately after the robbery Moss and Smith brought her brother to the trailer; that Smith was driving her brother’s car, and both Moss and appellant were badly wounded. She nursed appellant until a rescue unit arrived to remove him to a Springfield, Missouri, hospital. Lucille Day and Bobby Day testified that appellant, John Moss and R.B. Smith were together on August 28,1981, just before the robbery. They said the three men were in appellant’s car. Photographs of blood stains in appellant’s car were also introduced. A physician and a nurse from the Springfield hospital testified to having surgically removed a lead cartridge from appellant on August 30, 1981. The cartridge was shown to have come from the pistol the victim was using at the time of the robbery. Thus, the admission of a statement by appellant that he was with Moss and Smith at the time of the robbery in the face of proof which can only be characterized as overwhelming and undisputed, was plainly harmless. We have said that where the proof of guilt is overwhelming, the requirement of prejudicial error increases accordingly. Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985). Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984) cert. denied, 470 U.S. 1085 (1985). Even constitutional errors may be cured where proof of guilt is so convincing that it can be said the error is harmless beyond a reasonable doubt. Harrington v. California, 395 U.S. 250 (1969); Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986).

The trial court should be affirmed.

Hickman, J., joins this dissent.

       Moss and Smith had been previously convicted of the crime.


author: Robert H. Dudley, Justice. Tom Glaze, Justice,

text:
    UNION NATIONAL BANK OF LITTLE ROCK v. Joseph HOOPER, Boyd Bond, et al.
    87-239
    746 S.W.2d 550
    Supreme Court of Arkansas
    Opinion delivered March 21, 1988

      Arnold, Grobmyer & Haley, A Professional Association, for appellant.

      Wright, Lindsey & Jennings, for appellee/cross appellant Frank J. Wills III.
   Robert H. Dudley, Justice.

In May of 1983, the appellant, Union National Bank of Little Rock, loaned $28,819.00 to the Hooper-Bond Company. The debt was evidenced by a promissory note and was secured by a lien on a 1983 BMW automobile. Joseph Hooper and Boyd Bond, principals in Hooper-Bond, personally guaranteed payment of the note. Twenty-eight months later, in September of 1985, Union and Hooper-Bond agreed to substitute a 1984 BMW automobile as security for the loan. In November of 1985, Union filed with the Revenue Division of the Department of Finance and Administration a certified copy of a motor vehicle security agreement evidencing its security interest in the 1984 automobile. This, however, was the only step taken by Union to perfect its lien. Nothing was done with the certificate of title or the manufacturer’s statement of origin. Some months later, in April of 1986, the appellee, Frank J. Wills III, purchased the 1984 automobile from Hooper-Bond for $14,000.00. At the time, Joseph Hooper, on behalf of Hooper-Bond, represented to appellee Wills that a valid certificate of title had been issued and that the vehicle was free and clear of all liens. Appellee Wills made a $5,000.00 partial payment. Hooper delivered the automobile to Wills at that time and stated that he would execute a bill of sale and give it to Wills along with the certificate of title. Upon receiving title Wills was to pay the $9,000.00 remaining due. Hooper never provided appellee Wills with a bill of sale or a certificate of title.

In October of 1986, appellant Union filed suit against Hooper-Bond Company, Joseph Hooper, and Boyd Bond alleging default on the loan and asking for possession of the car, sale of the car in a commercially reasonable manner, and deficiency judgments. In January of 1987, Union filed an amended complaint stating that it had a perfected security interest in the 1984 automobile and adding appellee Wills as a defendant. Appellee Wills subsequently filed a counterclaim against Union asking for a declaratory judgment on the issue of Union’s alleged security interest, and he also filed a cross-claim against Hooper-Bond, Hooper, and Bond for compensatory and punitive damages.

The trial court entered a declaratory judgment in favor of appellee Wills and against appellant Union, ruling that Union did not have a perfected security interest in the automobile and that Wills was entitled to possession. We affirm that part of the holding.

In addition, the trial court entered a judgment against Hooper-Bond on Wills’ cross-claim, awarding Wills $2,700.00 in compensatory damages and $2,700.00 in punitive damages. The trial court further ruled that Union was entitled to subrogation on the $9,000.00 which Wills still owed to Hooper-Bond on the purchase price of the 1984 automobile. The trial court held that Wills could offset against Hooper-Bond the $2,700.00 compensatory damages but not the $2,700.00 punitive damages. On cross-appeal, Wills asserts that the trial court erred in refusing to allow offset of the punitive damages. We agree.

Even though the cases against Joseph Hooper and Boyd Bond are stayed, and still pending, the trial court found that there is no just reason to delay entering the judgment. See ARCP Rule 54(b). Accordingly, the trial court’s order is an appealable order.

On direct appeal, Union argues that the trial court erred in ruling that Union was not entitled to possession of the 1984 automobile. The ruling of the trial court was correct.

Arkansas law provides three alternative methods for perfecting security interests in automobiles:

ALTERNATIVE A: Ark. Stat. Ann. § 75-160(b) (Repl. 1979) provides:

(b) There shall be deposited with the department a copy of the instrument creating and evidencing such lien or encumbrance, which instrument is executed in the manner required by the laws of this State with an attached or indorsed certificate of a notary public stating that the same is a true and correct copy of the original and accompanied by the certificate of title last issued for such vehicle.

Under this provision, Union would have had to file both a certified copy of the instrument creating and evidencing the lien and the vehicle’s last certificate of title. Union did not meet these requirements because it did not file the vehicle’s last certificate of title.

ALTERNATIVE B: Ark. Stat. Ann. § 75-160(d) (Repl. 1979) provides:

(d) If the vehicle is of a type subject to registration hereunder but has not been registered and no certificate of title has been issued therefor then the certified copy of the instrument creating such lien or encumbrance shall be accompanied by an application by the owner in usual form for an original registration and issuance of an original certificate of title. In every such event such application shall be accompanied by the fee or fees as provided in this Act [§§ 75-101 — 75-191].

Under this provision Union would have had to file a certified copy of the instrument creating and evidencing the lien accompanied by an application by the owner for registration and certificate of title. Union did not meet these requirements because there was no accompanying application for registration.

ALTERNATIVE C: Ark. Stat. Ann. § 75-161(b) (Supp. 1985) provides:

(b) A lienholder may, at his option, record the lien on the manufacturer’s statement of origin or on an existing certificate of title and in addition file with the Revenue Division of the Department of Finance and Administration a certified copy of the instrument creating and evidencing such lien or encumbrance, and shall remit therewith a fee of one dollar ($1.00) for each lien to be filed, which such recording and filing shall constitute constructive notice of such lien against the vehicle described therein to creditors of the owner, subsequent purchasers and encumbrancers, except such liens as are by law dependent upon possession. A photocopy of the manufacturer’s statement of origin or of such existing certificate of title or of ownership showing the lien recorded thereon and certified as a true and correct copy by the party recording the lien shall be sufficient evidence of such recording.

Under this provision, Union would have had to record the lien on the manufacturer’s statement of origin or the certificate of title and to file a certified copy of the instrument creating and evidencing the lien. Union did not meet these requirements because it did not record the lien on the manufacturer’s statement of origin or the certificate of title.

Union simply did not comply with any of the alternative methods for perfecting security interests in automobiles. Union tacitly admits it did not perfect its security interest, and, even so, asks us to excuse it from statutory compliance because it did not have the certificate of title or the statement of origin. We decline the request, and, instead, follow the quoted statutes. Aside from our interest in following the statutes, we note that Union could have easily avoided its problem by refusing to agree to a substitution of collateral until the proper documents were provided.

Since Union did not comply with the perfection requirements of the quoted statutes, appellee Wills, the subsequent purchaser, is entitled to possession and ownership of the automobile under the following provisions of Ark. Stat. Ann. §75-160(a) (Repl. 1979):

No conditional sale contract, conditional lease, chattel mortgage, or other lien or encumbrance or title retention instrument upon a vehicle, of a type subject to registration under the laws of this state other than a lien dependent upon possession, is valid as against the creditors of an owner acquiring a lien by levy or attachment or subsequent purchasers or encumbrances with or without notice until the requirements of this article [§§ 75-160, 75-161] have been complied with. (Emphasis added.)

In Commercial Credit Corp. v. National Credit Corp., 251 Ark. 702, 704, 473 S.W.2d 881, 884 (1971), we wrote, “[H]aving failed to comply with Ark. Stat. Ann. § 75-160 and § 75-161, National was not a lien encumbrancer insofar as third parties are concerned under the Motor Vehicle Registration requirements.”

Similarly, in this case, Union was not a lien encumbrancer insofar as Wills, the subsequent purchaser, was concerned. Thus, the trial court correctly awarded possession and ownership to Wills.

On cross-appeal Wills alleges that the trial court erred in prohibiting him from offsetting the punitive award against the remaining balance due Hooper-Bond. The argument is meritorious. On the basis of a cross-claim against Hooper-Bond, Wills was awarded $2,700.00 compensatory damages and $2,700.00 punitive damages. Subsequently, the trial court ruled that Union was entitled to subrogation on the amount Wills owed to Hooper-Bond on the 1984 automobile. The trial court allowed Wills to offset the compensatory but not the punitive damages.

In summary, on one hand, Wills owed $9,000.00 to Hooper-Bond on the purchase price of the car. On the other hand, Hooper-Bond owed Wills $5,400.00, the total of the compensatory and punitive awards. Thus, Wills is liable to Hooper-Bond for the difference, or $3,600.00. Wills owed nothing to Union. He only owed Hooper-Bond. Union can collect through subrogation only the amount Hooper-Bond was entitled to collect. The subrogee can have rights no greater than those of the subrogor. Aetna Casualty & Sur. Co. v. Taylor, 177 Ark. 181, 5 S.W.2d 929 (1928).

Affirmed on direct appeal. Reversed on cross appeal.

Purtle and Hays, JJ., affirm on direct appeal and affirm on cross appeal.

Glaze, J., affirms on direct appeal and concurs on cross appeal.

Tom Glaze, Justice,

concurring. I fully agree with the majority’s decision on direct appeal, but concur as to that portion of the court’s holding on cross appeal allowing Wills to offset punitive damages against Union National Bank.

First, whether the circuit court had authority to subrogate Wills’ promissory note (held by Hooper Bond Co.) to the Bank was never questioned below. Yet, from my examination of the documents, I find nothing that provides for subrogation rights. Because no contractual agreement provided the remedy of subrogation, the parties should have tried the issues of subrogation and set off in chancery instead of circuit court. In Southern Cotton Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555, 158 S.W. 1082 (1913), the court explained that the doctrine of subrogation is a creature of equity, “having for its basis the doing of complete and perfect justice between the parties, without regard to form, and its purpose and object is the prevention of injustice.” See also Baker, Adm’r v. Leigh, 238 Ark. 918, 385 S.W.2d 790 (1965); Webster v. Horton, 188 Ark. 610, 67 S.W.2d 200 (1934). Likewise, the doctrine of equitable setoff is available in equity although the remedy for setoff of contract and tort claims is also provided by statute. See Ark. Code Ann. § 16-63-206(a) (1987). In any event, the Bank waived all equitable remedies it may have had by failing to move that the subrogation matter be transferred to chancery court.

On appeal, this court then is left with the circuit court’s subrogation of the Wills’ note to the Bank as not having been challenged; however, Wills’ attempt to setoff his punitive damages award against that note was argued below and is now in issue and must be decided.

As the majority court suggests, the subrogee (Bank) must operate under the same conditions and limitations as the creditor (Hooper Bond) whose rights he inherits. 83 C. J.S. Subrogation § 14 (1953). Although Union National Bank argues that it is being forced to pay for the wrong of another, it is not without recourse. In Home Insurance Co. v. Lack, 196 Ark. 888, 120 S.W.2d 355 (1938), citing from 60 C.J. 728, we said, “As a general rule any person who, pursuant to a legal obligation to do so, has paid even indirectly for a loss or injury resulting from the wrong or default of another, will be subrogated to the rights of the creditor or injured person against the wrongdoer or defaulter.” In sum, after the setoff is permitted against the Wills’ note, the Bank will be entitled to seek its cause of action against Hooper Bond (and its principals) for the punitive damages which were awarded Wills on his fraud claim against Hooper Bond. In this respect, Hooper Bond and its principals are not absolved of their wrongdoing and remain liable for it.


author: Steele Hays, Justice.

text:
    Lloyd EARNEST and Janice Earnest v. JOE WORKS CHEVROLET, INC.
    87-331
    746 S.W.2d 554
    Supreme Court of Arkansas
    Opinion delivered March 21, 1988

      Pat Hall, for appellants.

      Shackleford, Shackleford & Phillips, P.A., for appellee.
   Steele Hays, Justice.

The only question presented by this appeal is whether the trial court erred in granting a directed verdict for the defendant in a property damage claim.

In August, 1983, appellant Lloyd Earnest purchased a new 1983 truck from Joe Works Chevrolet. After a few weeks, appellant had trouble with the truck flooding and missing. Sometimes the car would surge forward while being driven and at times it failed to start. There was a problem of black smoke coming from the exhaust. Appellant took the truck to the dealer in January or February of 1984, and the fuel pump was replaced and the carburetor was rebuilt. Appellant returned the truck two more times complaining of similar problems. The truck operated satisfactorily briefly after the last repair, but then continued to have the same problems.

In May 1984, while appellant was driving the truck and attempting to pass another vehicle, the truck caught fire. Appellant first noticed smoke in the cab, and by the time he pulled over the truck was already on fire. The fire spread rapidly, totally destroying the truck, as well as damaging tools and articles in the truck.

Appellant brought this action against Joe Works, Inc. and Joe Works, individually, for breach of warranty, strict liability and negligence. Joe Works brought a third party complaint against General Motors. Before trial, the parties and issues were narrowed. Summary judgment was granted Joe Works, individually, and the appellant announced he would proceed solely on the negligence claims. Appellant moved to eliminate all claims for damages to the vehicle and certain personal property for which appellant had been reimbursed by his insurance company. The remaining claim for damages was for personal property not covered by the insurance.

The case was tried to the court only on the theory of negligence for damage to personalty valued at $3300.00. At the close of the plaintiffs case, the defendant moved for a directed verdict. The trial court granted the motion, finding there was no substantial evidence to support a verdict in favor of the appellant. Appellant contends this was error, and the evidence was sufficient to sustain a verdict.

To make a prima facie case of negligence, a plaintiff must show that he sustained damages, that the defendant was negligent and that such negligence was the proximate cause of the damages. To prove negligence, a party must show that the defendant has failed to use the care that a reasonably careful person would use under circumstances similar to those shown by the evidence in the case. AMI 301, 303; Service Communications, Inc. v. Wells, 279 Ark. 378, 651 S.W.2d 100 (1983).

Here, the only evidence of negligence was the testimony of the appellant. All the testimony established was that there were problems with the truck, and the appellee had failed to rectify those problems. Appellant offered no evidence that the failure was due to negligence, or that appellee had failed to use the care a reasonably careful person or mechanic would have used under the same circumstances. There was no testimony by another mechanic, or even by the appellant, as to the nature or manner of the repair. It would be entirely speculative to hold that there was negligence simply because a vehicle continued to have problems even after being worked on. It may well have been a problem which even the highest care might not have been able to correct.

While a party may establish negligence by direct or circumstantial evidence, he cannot rely upon inferences based on conjecture or speculation. An inference cannot be based upon evidence which merely raises a possibility. Glidewell Adm. v. Arkhola Sand and Gravel Co., 212 Ark. 838, 208 S.W.2d 4 (1948). Appellant’s proof provided nothing more than a mere possibility that appellee was negligent in its repair of appellant’s truck.

Not only is proof of negligence lacking, similarly, there is insufficient proof that negligence was the proximate cause of appellant’s damages. Proximate cause may also be proved by circumstantial evidence, if the facts are of such nature and so related to each other that conclusion therefrom may be fairly inferred. St. Louis Southwestern Ry. Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 436 (1977). No such conclusion can be drawn from the evidence presented in this case. The appellant’s entire case consisted of his own testimony and that of Kenneth Allen, an assistant fire chief. Allen arrived on the scene and had helped extinguish the fire. He made an investigation at the scene and wrote a report. It was apparently appellant’s theory that because the carburetor had not been properly repaired, it backfired and ignited fuel that caused the fire. However, there is absolutely no evidence to show the origin of the fire was less than total speculation.

Appellant’s evidence of proximate cause was that the truck had at times backfired. However, there was no testimony that the truck had backfired at the time of the fire. Moreover, the fire chief stated unequivocally that he could not determine the origin of the fire. He noted in his report that the origin of the fire was undetermined. He stated at one point, “I have no idea where the ignition source could have been.” He thought it could have been the carburetor, or other things, but all were just possibilities. Given the evidence that was presented, any inference that the fire was caused by appellee’s negligence is wholly speculative and no such conclusion can be reasonably inferred.

Adding to the weakness of appellant’s case is the fact that the truck had been worked on by three other shops on several occasions, as well as by appellant himself. One firm, in fact, had worked on the truck just two days before the fire. This lack of exclusive control of the instrumentality also precludes any application of the doctrine of res ipsa loquitur. Megee v. Reed, 252 Ark. 1016, 482 S.W.2d 832 (1972); Dollins v. Hartford Acc. & Indem. Co., 252 Ark. 13, 477 S.W.2d 179 (1972).

It is not entirely clear whether the alleged negligence involves the repair of the truck, or in supplying a defective product. Appellant’s argument seemed to indicate negligent repair, however, assuming appellant is also including a claim of negligently supplying a defective product, it adds nothing to his case.

Negligence in supplying a defective product may be shown in several ways. See W. Prosser & W. Keeton, The Law of Torts, § 96 (1984) (negligence in creating or failing to discover a flaw, negligence in failing to warn or failing to adequately warn, negligence in the sale of a defectively designed product.) However, as with the negligent repair, there was no proof offered on the necessary elements of such a claim. Without detailing the various failures of appellant’s proof, suffice it to say, that even if there were negligence of this sort, as with the negligent repair, there is no proof of proximate cause that the defective parts were the cause of appellant’s harm. As was pointed out earlier, the cause of the fire was undeterminable.

Finding no error, we affirm.

       The parties have stipulated that the appeal is only from the directed verdict in favor of Joe Works Chevrolet and is not an appeal from that portion of the judgment entered in favor of General Motors, which was dismissed as being moot.