author: Conley Byrd, Justice. Darrell Hickman, Justice,

text:
    Harvey HUGHES v. STATE of Arkansas
    CR 78-95
    574 S.W. 2d 888
    Opinion delivered December 18, 1978
    (In Banc)
    [Rehearing denied January 22, 1979.]

      Garnet E. Norwood and Henry C. Morris, for appellant.

      Bill Clinton, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

On April 18, 1977, appellant Harvey Hughes pled guilty to the third offense of sale of intoxicating beverages in a prohibited area and was sentenced to the Department of Corrections for 5 years. The entire sentence was suspended on three conditions: (1) Future good behavior; (2) Compliance with the liquor laws; and (3) Payment of costs. On September 9, 1977, the prosecuting attorney filed a Petition to Revoke Suspended Sentence alleging that appellant had violated the terms of the suspended sentence by possession for sale and selling alcoholic beverages in a dry county on September 7, 1977. This matter was not heard within the 60 days required by statutes and upon a timely motion filed by appellant was dismissed. On February 22, 1978, the prosecuting attorney filed a second Petition to Revoke the Suspended Sentence alleging that appellant had on February 21, violated the conditions of the suspended sentence by possession for sale and selling alcoholic beverages in Sevier County, a dry county. Following a hearing of that charge the trial court revoked 2 years of the 5 year suspended sentence because of the sale of one fifth of “Evan Williams straight Bourbon whiskey to Marion Bell on February 21, 1978 for $10.00.” For reversal of the revocation of the suspended sentence appellant raises the following points:

I. Appellant was denied due process of law by the Court’s off-the-record and out-of-the-appellant’s-presence interview of the appellant’s doctor leading to his being removed from the hospital to attend and participate in the revocation hearing.
II. Appellant was denied due process of law by the trial court’s refusal to require the state to comply with Rule 17.1 of the Arkansas Rules of Criminal Procedure.
III. Appellant was denied due process of law by the State’s use of an agent to conduct an unreasonable search of his premises, the same being without probable cause and warrantless.
IV. Appellant was denied the equal protection of the law by the use of evidence of conduct, the sale of a small quantity of intoxicating beverages, to revoke a suspended sentence, thereby denying him the right to trial by a jury, the presumption of innocence, and a right to require the State to prove its case beyond a reasonable doubt.
V. Appellant was denied due process of law in that the order which originally suspended his sentence on the basic charge, the order being entered April 12, 1977, was not reduced to writing nor were the restrictions and terms of his suspended sentence clearly enumerated to him. The oral version of the Court’s conditions for the suspended sentence are nebulous and therefore void for vagueness and not binding upon the defendant.
VI. The revocation of the suspended sentence, in light of appellant’s undenied physical condition, and the placing of him into the State Penitentiary for a period of two years amounts to a cruel and unusual punishment.”

POINT I. The record shows that prior to trial appellant filed a motion for continuance on the basis that he was incapacitated and unable to appear in court on Friday April 14, 1978, because of medical reasons due to his hospitalization. A medical statement by his local physician Dr. O. D. Brown was attached. The record also shows that when court commenced appellant was present in court and the trial judge explained to appellant that he had talked to the doctor that morning and the doctor had indicated it would be all right for appellant to come into the courthouse for a short hearing concerning the revocation of the suspended sentence. In doing so the trial court pointed out that the reason was because the prior petition for revocation had been dismissed for not being brought within 60 days and that the purpose of this hearing was to grant appellant a speedy hearing. Following those statements of the trial judge the appellant entered no objections nor made any request for the appearance of the doctor. Consequently, we do not reach this contention for we will not examine the matter raised for the first time on appeal. Furthermore, since the doctor wrote the letter at the request of appellant, appellant could not claim the benefit of any privileged communication even if the statements to the doctor involved were privileged, which is doubtful.

POINT II. Within the appropriate time appellant filed a motion pursuant to Rule 17.1 of the Rules of Criminal Procedure requesting that the prosecution furnish the names and addresses of all witnesses who would testify and support the charge and that appellant be advised of the particular acts and statements relied upon with such certainty as to apprise him fully of the specific charges against him in order to enable him to prepare for trial. The State did not formally respond to appellant’s written motion, however, the record does show that there were some informal communications between counsel for the defense and the prosecuting attorney. Without ruling on the sufficiency of the State’s performance of its obligations under Rule 17.2, the trial court directed the prosecuting attorney to give counsel for the defense the names of the witnesses to be called, that is the sheriff and one Marion Bell. Counsel for defense was already aware of the testimony of the sheriff and the trial court gave him a continuance during which time he could interview Marion Bell. Following the recess, during which time appellant interviewed the witness Marion Bell, the appellant made no contention before the trial court that he was entitled to an additional continuance for purposes of preparing for trial. Even if it could be said that the prosecuting attorney failed to supply the information in accordance with Rule 17.2, we would still have to hold that on the record before us any failure on the part of the prosecuting attorney was cured by the recess during which time the appellant was permitted to interview the witness. Consequently, any failure on the part of the prosecuting attorney would amount to harmless error.

Under this point appellant also questions the action of the trial court in taking judicial notice that the filth of Evan Williams Straight Bourbon Whiskey was intoxicating liquor. The record shows that appellant sold the fifth to Marion Bell as whiskey and that the fifth contained a properly affixed and unbroken federal excise tax seal. Rule 201 (b) of the Uniform Rules of Evidence, Ark. Stat. Ann. § 28-1001 (Supp. 1977) provides:

“A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.”

Under the circumstances it would appear that the fifth of Evan Williams Straight Bourbon Whiskey containing the unbroken federally affixed federal tax seal would fall within subsection 2 of Rule 201 (b), supra, and since appellant did not request an opportunity to test the contents, we cannot say that the trial court committed error in taking judicial notice that the fifth contained intoxicating liquor.

POINT III. Appellant here contends that surreptitious use of private citizen Marion Bell to purchase a fifth of whiskey from appellant amounted to an unlawful search and seizure on the part of the sheriff. We find no merit to this contention. See Lewis v. United States, 385 US. 206, 87 S. Ct. 424, 17 L. Ed. 2d 312 (1966).

POINT IV. We find no merit to appellant’s contention that he was denied a right of a jury trial. Arkansas has not adopted the American Bar Association’s “Standards Relating to Probation” § 5.3. See Ellerson v. State, 261 Ark. 525, 549 S.W. 2d 495 (1977).

POINT V. For the first time appellant contends that the order which originally suspended his sentence on the basic charge was not reduced to writing nor were the restrictions and terms of this suspended sentence clearly enumerated to him. We do not reach this issue simply because it was raised for the first time on appeal.

POINT VI. We find no merit to appellant’s contention that the revocation of the suspended sentence in light of appellant’s undenied physical condition amounts to a cruel and unusual punishment. The punishment here provided is not so disproportionate to the offense committed as to shock the moral sense and to violate the judgment of reasonable men concerning what is right and proper under the circumstances. See Hinton v. State, 260 Ark. 42, 537 S.W. 2d 800 (1976). Appellant’s contention that because of his leukemia and arteriosclerotic heart condition he was in effect sentenced to die in the penitentiary is an argument that should be addressed to those having to do with matters of clemency.

Affirmed.

Fogleman, J., concurs.

Hickman and Howard, JJ., dissent.

Darrell Hickman, Justice,

dissenting. Appellate courts are supposed to objectively and fairly review a decision and to evenly apply the law without regard to the end result. In achieving such a goal, invariably a judicial decision is a matter of judgment; since individuals make such judgments, error is really a matter of opinion. I choose to exercise my prerogative in that regard by respectfully dissenting from the majority opinion — it does violence to the integrity of the law.

The hearing below started with the trial court testifying for the State, presenting evidence to rebut that offered by the defendant in his request for a continuance. The hearing proceeded thereafter in such a summary manner that it must have become obvious to Hughes’ attorney, as it is to me, that Hughes would not prevail. That is not so much a concern to me as is the manner in which the hearing was conducted.

The majority begins its opinion by reciting that Hughes had been convicted for bootlegging three times; in addition he had been charged with bootlegging but not brought to a hearing because of a procedural defect (which was no fault of Hughes nor his attorney.) The majority proceeds thereafter to summarily dispose of all the appellant’s arguments raised on appeal.

In my judgment the majority has pretty well ignored all the rules of law and procedure which, when fairly and evenly applied, assure the innocent as well as the guilty that judgment will be according to due process of law.

Rather than being prefaced with Hughes’ past misconduct, my review of this hearing will be based upon the presumption that Hughes is innocent of the charge until proven guilty and that he is entitled to a fair hearing.

Hughes’ lawyer first filed a Bill of Particulars in this case six weeks before the hearing, requesting that the State provide him with all the information it had regarding the charges, evidence, witnesses and so forth. The State filed no response as required by Rules of Crim. Proc., Rules 17.1 and 19.2 (1976). The day before the hearing in this matter, Hughes’ lawyer filed a motion for a continuance with the attached statement from Hughes ’ doctor stating, among other things, that Hughes had leukemia, arteriosclerotic heart disease and a spine condition, and that his presence in court would be detrimental to his health. The next day the court began the hearing by stating:

Mr. Hughes, I talked to your doctor this morning and he said it would be all right for you to come to the courthouse for a short hearing concerning the revocation of your suspended sentence. . . .

In other words, the trial court, on its own, outside the hearing of Hughes or his lawyer, talked to the doctor and stated from the bench that the doctor’s statement filed by Hughes’ lawyer would not be grounds for a continuance.

After the court made its initial remarks, Hughes’ lawyer asked the court about the two motions that he had filed: the motion for continuance and the motion for the Bill of Particulars. The judge apparently ignored the inquiry regarding the continuance, and inquired of the State’s attorney if, in fact, Hughes’ lawyer had been given the requested information.

The State’s attorney conceded that no answer had been filed to the Bill of Particulars but related that he and Hughes’ lawyer had talked about the case. Hughes’ lawyer explained that as far as he knew there was only one witness that would be called by the State and that was the sheriff. The court then asked the State’s attorney:

THE COURT:
Is there anything in addition to that, Mr. Hodge, that the State plans to prove?
STATE’S ATTORNEY:
Your Honor, the Sheriff was present at a purchase — the Sheriff didn’t make the purchase himself. The Sheriff was present when a purchase was made and was, in fact, wearing a disguise that Mr. Norwood and l have discussed on several occasions.
THE COURT:
Is there anything that is going to come out in this hearing that you think will be surprising to Mr. Norwood?
STATE’S ATTORNEY:
No, Your Honor.
DEFENSE ATTORNEY:
Well, it will surprise me if someone other than the Sheriff comes here and testifies that they made a purchase from Mr. Hughes.
THE COURT:
Can you give him the name of that individual?
STATE’S ATTORNEY:
Marion Bell. He is sitting here in the courtroom.
THE COURT:
Do you want to talk with him, Mr. Norwood?
DEFENSE ATTORNEY:
Yes, Your Honor, I would sure like to talk to him.
THE COURT:
All right, sir, I will give you time to do so.

It was not disputed that Hughes’ lawyer had no knowledge of the other witness before the day of the hearing. The court granted Hughes’lawyer an opportunity to question this witness during a brief recess. After Hughes’ lawyer had consulted with the witness, he asked the Court to suppress any evidence that would be introduced at the hearing because it would be the product of an illegal search.

At first the court ruled that such a request was untimely, not having been filed at least ten days before trial. Mr. Hughes’ lawyer then called the court’s attention to the fact that he had filed a timely motion for a Bill of Particulars which had not been answered by the State, and that he did not know the State had other evidence until five minutes earlier. He stated that, consequently, his motion was filed as soon as he learned of the evidence to be produced by the State. The court then said it would withhold a ruling on the matter until the evidence was heard. (After the evidence was heard, the motion was overruled.)

The hearing proceeded and a witness testified that he purchased a fifth of whiskey from Hughes. The sheriff produced a bottle and it was accepted in evidence. The following colloquy occurred:

Q. Do you know that’s whiskey in the bottle?
A. No, I don’t, but I sure think it is.
THE COURT:
Has the seal been broken?
BY THE WITNESS:
It has not been, no, sir.
Q. (Cont’d. by Mr. Garnet Norwood) Well, how do we know what that is?
THE COURT:
I will take judicial notice that it is intoxicating liquor.
DEFENSE ATTORNEY:
Now, your Honor, how do you know what that is?
THE COURT:
Because I have authority to take judicial knowledge of that bottle. It’s not the first bottle I have ever seen.

The majority opinion states that the bottle “contained a properly affixed and unbroken federal excise tax seal.”

The majority answers the questions raised on appeal by essentially finding that Hughes’ lawyer failed to make timely or proper objections during the proceedings below.

Hughes’ lawyer filed a motion for a Bill of Particulars and it was not answered by the State. He filed a motion for a continuance and it was rebutted by a statement by the court. Such a statement amounted to evidence given on behalf of the State rebutting the affidavit filed by Hughes’ lawyer. Hughes’ lawyer mentioned after the court’s statement that he had filed a proper motion for a Bill of Particulars and a proper motion for a continuance. The majority says that there was no objection made to the court’s statement or any request for the appearance of the doctor. What more could Hughes’ lawyer have done in view of the fact that the circuit judge had directly controverted, from the bench, his evidence except to call to the court’s attention that a proper motion had been filed?

According to Ark. Stat. Ann. § 43-2725.1:

. . . Formal exceptions to rulings or orders of the trial court are unnecessary; but for all purposes for which an exception has heretofore been necessary it is sufficient that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objections to the action of the court and his grounds therefor. . . .

I would submit that such an objection was made in this case to the improper remarks of the trial court.

The court dismisses the argument that an answer was not filed to the Bill of Particulars by stating that the court allowed Hughes’ attorney a recess to talk to the witness and it was harmless error on the part of the prosecutor in failing to provide the name of the witness to be used by the State. The State’s whole case was based on this witness’ testimony and there was no excuse offered for such a failure.

The so-called bottle of whiskey was introduced into evidence and there was no attempt by the State to prove that the bottle contained whiskey. Normally, a witness testifies that it has been tested and found to be intoxicating liquor. The sheriff said he didn’t know it was whiskey but he sure thought it was whiskey; the trial judge said he knew it contained intoxicating liquor and he would take judicial notice of it because it was not the first bottle he had seen; and, the majority opinion has placed a federal seal on the bottle. The State still has not proved there was whiskey in the bottle. Where the majority gets the idea that the bottle contained a federal seal is a puzzle to me because the record contains no such reference. Since the bottle is not before us on appeal, that is, it has not been lodged with our clerk as evidence (the sheriff still has the bottle according to the record), 1 can only presume that the majority is taking license with the testimony or on its own has determined that an “unbroken federally affixed federal tax seal” was on the bottle which permits it to take judicial notice that the bottle contains whiskey.

After concluding that the “federally affixed” bottle contains whiskey, the majority says that, anyway it was Hughes’ responsibility to request an opportunity to test the contents. I was not aware that a defendant was required to prove his innocence nor to put his own neck in a noose.

No doubt the trial court was chagrined because the State had failed to bring Hughes to account for other charges within sixty days and those charges had to be dismissed. Furthermore, the trial court, an eminent and respected jurist, was obviously tired of putting up with Hughes who had been repeatedly warned before about his bootlegging. However that may be, the trial court, in my judgment, improperly injected itself into this matter by making a statement on behalf of the State and that error cannot be as easily ignored as the majority does.

Individuals who benefit most from procedural rights guaranteed by the Constitution are rarely worthy of such rights, but the integrity of the law is always worth maintaining regardless of the individuals involved. I would remand the case for a rehearing so that Hughes’ lawyer could properly prepare his case, and present it according to our rules, the laws of Arkansas and the Constitutions of this state and the United States.

Howard, J., joins in dissent.


source: Caselaw Access Project

author: Frank Holt, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    George R. NEWBERRY et al v. Ben M. McCLAREN et ux
    78-161
    575 S.W. 2d 438
    Opinion delivered December 18, 1978
    (In Banc)
    [Rehearing denied January 29, 1979.]

      John I. Purtle, for appellants.

      Clark & McNeil, for appellees.
   Frank Holt, Justice.

The appellants leased 1,120 acres of land for S3,000 annually to the appellees. The term of the written lease was from May 1, 1971, to December 31, 1975. The agreement gave the appellees the option to purchase the acreage at $200 an acre within a period of not less than thirty days and not more than ninety days before the end of the lease. Appellees properly exercised this option. Thereupon the appellants brought an action to rescind the agreement alleging various breaches by the appellees. The appellees denied the allegations and counterclaimed for specific performance. The chancellor dismissed appellants’ complaint and awarded appellees specific performance of the option to purchase, subject, however, to a year’s extension of appellants’ right to cut and remove timber from the property. For reversal of that decree, appellants first assert that the court erred in finding that appellees did not breach the contract by interfering with appellants’ reservation of a right to remove timber.

We will not disturb the chancellor’s findings on a fact issue unless it is clearly against the preponderance of the evidence. Gibson v. Heiman, 261 Ark. 236, 547 S.W. 2d 111 (1977) ; Walker v. Walker, 262 Ark. 648, 559 S.W. 2d 716 (1978) . Here appellants reserved the right to sell timber from the leased property for sawlogs or pulpwood during the term of the lease. In 1973, appellants and appellees discussed appellees’ purchasing timber from appellants. After those discussions fell through, appellants entered into two contracts for the sale and removal of the timber. Appellants first contracted in February, 1975, with a Mr. Shamblin. According to Shamblin, he ceased his operations because, in April, 1975, appellants made a similar contract with another logging contractor named O’Bannon. O’Bannon testified that the road known as the “lane road” was the only road that he was to use and that he did use that road for six or seven weeks, quitting when it became impassable. It was taking more time to fix the road than he could manage. Price, an adjoining landowner, testified that O’Bannon’s heavy equipment was the cause of the road’s becoming impassable. O’Bannon then attempted to use another road, the “loghouse road,” for access to the timber. However, the appellees, after observing the damages caused by the use of this road, instructed O’Bannon to use only the “lane road.” O’Bannon’s equipment consisted of two-ton trucks, skidders weighing twelve tons each and a D-6 bulldozer. It appears undisputed that O’Bannon, besides damaging both roads, cut and broke fences and left logs and tree tops in appellees’ fields. In these circumstances, we cannot say that appellees’ insistence that O’Bannon use the “lane road” for access to the timber constituted a material breach of contract. Appellants’ right to sell and remove timber did not give them the right to allow their logging contractor to unreasonably damage the leased farm. Certainly it cannot be said that the chancellor’s finding is against the preponderance of the evidence.

Appellants next assert that the court erred in finding appellees made a proper tender to exercise the option to purchase. They argue that, although no specific finding of a legally sufficient tender was made by the court, the court’s ruling inferred there was a sufficient tender. Appellees exercised their option on October 24, 1975. It is insisted that it was impossible for them to exercise their option to purchase on this date because they never had under their control sufficient funds to meet their contractual obligations. However, the contract itself makes no requirement that a tender of funds be made upon exercising the option. It does require that upon appellants’ receipt of notice of the option to purchase, they “shall cause an abstract of title covering said lands to be prepared and submitted to” appellees for their approval and “at such time as said title is rendered marketable [appellants] shall tender unto [appeileesj a warranty deed.” With respect to payment, the contract provides that “25 percent of the said purchase price shall be paid cash in hand upon delivery of deed” and the balance “shall be evidenced by a promissory note of even date” bearing a stated interest payable in five equal annual payments.

Where a contract does not provide that a tender be made when the option is exercised, it is unnecessary to make a tender at that time. Rich v. Rosenthal, 223 Ark. 791, 268 S.W. 2d 884 (1954). Here, as indicated, the contract did not require a tender upon exercising the option to purchase. It only provides that upon appellees exercising their option the appellants would furnish them a marketable abstract of title. In view of this provision, it cannot be said that the parties contemplated a tender of the agreed purchase price by the appellees before they had an opportunity to examine the abstract as to the marketability of the title. It was only upon appellants’ delivery of the deed with a marketable title, which appellants have never done, that the appellees were required to fulfill the purchase price agreement. In the circumstances, whether the appellees had or did not have the “present ability” to make payment of the purchase price at the time they exercised their option to purchase is of no significance. Therefore, we find no merit in appellants’ contention that the chancellor erred in his finding that the appellees made proper tender upon exercising their option.

Next it is contended that the chancellor’s finding that appellees did not breach the contract by failing to use good husbandry in caring for the farm was against the preponderance of the evidence. The thrust of appellants’ argument is there were violations of good husbandry with respect to soil erosion, permitting the growth of brush too large to bush hog and dead cattle left on the lands to decay. In Underhill, Law of Landlord and Tenant, §§461 et seq., it is noted that persons living in the area who are familiar with local cultivation practices and climate may give their opinion as to what constitutes good husbandry. It appears appellees leased the farm primarily to raise cattle. According to appellants, the appellees have never bush hogged the property sufficiently and underbrush has grown too large to bush hog. For the first two years, however, appellees did well as far as good husbandry techniques. Price, a neighbor, testified that he had seen five dead cows on appellees’ property during the five year term of the lease, and some of the land had grown up beyong the point where it could be bush hogged. However, he considered the property as being in better shape at the end of the lease than at the beginning since appellees had built ponds and fencing, cleared fields and improved a road on the property. Two employees of appellees testified that they had worked regularly for a year clearing, building sheds and fences and making other improvements. McClaren testified that when he leased the property in 1971 none of it was open pasture land. At the end of the lease, at least one hundred acres were pasture land. He had cleared approximately three hundred acres. He further testified, with supporting exhibits, that he had expended approximately $7,000 for fertilizer, seed and building materials, all of which were used on the property during the lease. Other improvements included building an all-weather road through the farm, fences (85 rolls of new barbed wire) and digging four ponds, one which admittedly did not hold water. The seepage from that pond caused some erosion which he characterized as inconsiderable. According to appellants, there was erosion from two of the ponds built by appellees causing “a big wash” and some “smaller washes” in the area of one pond. As to the five dead cows, according to McClaren, there was only one carcass left of the premises and, upon discovery, he kept it disinfected by the use of concentrated creosote. Appellants acknowledged that they really never complained to appellees about the dead cattle. McClaren testified that he discussed his farming operations two or three times a year with appellants and no complaint was made by them about anything. He was complimented and told that he had exceeded their expectations in the operation of the farm. The first complaint was this action to rescind their agreement. Appellants denied they had ever expressed approval of appellees’ farming operation.

In summary, suffice it to say there was conflicting testimony about the farming practices by appellees. We cannot say the chancellor’s finding as to good husbandry is against the preponderance of the evidence.

It is also contended that the court erred in not finding the appellees failed to comply with the condition of no assignment. The appellants invoked paragraph 6 of the lease agreement which states that the “lease shall not be assigned, nor shall any portion of the leased premises be sublet without the written consent of the Lessor ...” Appellees entered into a contract for the future sale of 1,000 acres of the property to a Mr. Baker and Mr. Jones on August 19, 1975, or a month and a half before the option could be exercised. The agreement expressly recognized that appellees’ rights in the property existed pursuant to their purchase option contained in their lease of the lands from appellants. The buy and sell agreement obligated appellees to do everything necessary to exercise their option and to present Baker and Jones with a warranty deed to the property whenever the title was rendered marketable. As “grantees”, they would have possession of the real estate not later than November 1, 1975, and of the residence not later than January 1, 1976. The appellees were advanced $20,000 in escrow by the prospective purchasers. After appellees exercised their option on October 24, 1975, they borrowed $36,000 from PCA, secured by a mortgage dated December 22, 1975, on the property, to raise the necessary balance of the required down payment. These two sums ($20,000 and $36,000) were paid into the registry of the court on December 29, 1975. The money was to be returned to the respective lenders if appellees were unable to exercise their option. Appellees’ agreement to sell the property upon acquisition of it further provided that the prospective grantees would have the right to make the five annual payments due on the balance, as scheduled in the lease option agreement, directly to the appellants.

51 C.J.S. Landlord and Tenant § 37 (3) notes that the burden of proving that an assignment took place is usually on the person asserting the assignment. § 38 indicates that there must be an “actual transfer of lessee’s interest” in order for an assignment to be found. Here the only restriction on assignment specifically related to the leasing or sub-letting of the property. There is nothing in the contract that prohibits the appellees from agreeing to sell the land or any part of it subsequent to appellees’ acquisition. If the parties had intended such a restriction, they could easily have so provided. Here there was no assignment of the lease. Neither was there ever a transfer of possession of any of the property to the prospective buyers. Their right to eventual possession of the property was clearly subject to a contingency; i.e., appellees successfully exercising their option to purchase. In Loveless v. Diehl, 236 Ark. 129, 364 S.W. 2d 317 (1963), we said:

The only reason that occurs to us for a denial of specific performance is the fact that the buyers entered into an agreement to sell the land to Dr. Hart. It is plain enough, however, they they had a perfect right to resell the land if they wanted to. Whether they kept it, sold it, or gave it away was of no concern to the sellers. To refuse specific relief on account of the proposed resale would establish an unsound precedent, diminishing the transferability of property ....

Here the court correctly found there had been no breach of the provision against assignment of the lease.

Appellees assert on cross-appeal that the court erred in allowing appellants an additional year in which to remove timber from the property. We deem it unnecessary to discuss this contention since appellees, in oral argument, stated that this is no longer significant inasmuch as a year has almost elapsed.

Affirmed.

Fogleman, J., concurs.

Byrd and Howard, JJ., dissent.

John A. Fogleman, Justice,

concurring. I concur in the result. I cannot agree that the preponderance of the evidence shows that covenants that the lessee should at all times cultivate the leased lands in accordance with good husbandry and that he should do and perform every act reasonably necessary to keep erosion, and the effect thereof, at a minimum, were not broken. I feel that the preponderance of the evidence is clearly to the contrary. Building ponds, fencing and improvement of roads, and building sheds and other improvements may have increased both the market and rental value of the property but were wholly immaterial to these covenants. On the other hand, l agree with the chancellor that violation of these covenants was wholly immaterial in this case.

Appellees exercised their option to purchase. The only way that these covenants could have been material to this litigation would pertain to the status of the property as security for the deferred purchase price. Appellants never sought to terminate the lease. They only sought to rescind the option and to regain possession of the property at the expiration of the lease. One of the appellants testified that, on the day of the trial, the farm was sufficient security for the $170,-000, which is that part of the purchase price to be deferred and paid over a five year period. That appears to have been the only evidence on the subject.

I also think that the chancellor dealt properly with the removal of the timber, whether or not the cross-appeal has been abandoned.

Supplemental Opinion on Motion to Clarify delivered January 29, 1979

Frank Holt, Justice. Appellants ask that our opinion be clarified to show that they have one year from the date of this opinion to remove timber from the lands.

Appellees on cross-appeal asserted that the court erred in allowing the appellants an additional year in which to remove timber from the property. As indicated, the appellants reserved their right to sell timber from the property leased by them to the appellees during the 5 year lease. Appellees agree that the chancellor’s one year extension is a well fashioned relief if the appellants are entitled to any relief with respect to the removal of timber. During the 5 year lease, there were discussions between appellee McClaren and appellant George Newberry with respect to McClaren purchasing the timber from the appellants. In granting the one year extension, apparently the chancellor believed, and we cannot disagree^ that McClaren agreed to Newberry’s offer to sell the timber to him and then backed out of the agreement about one year later. Consequently, we think the chancellor was correct in extending the right to remove timber an additional year. Even so, appellees argue that the one year extension is extinguished inasmuch as one year has elapsed during the appellate proceedings without a supersedeas bond staying the decree. It is true that neither party filed a supersedeas bond; however, it is appellants’ position that “by apparent understanding neither party required a supersedeas bond. Each relied upon the status quo that neither would do anything pending the appeal to injure the other parties.” This assertion appears to be uncontroverted. Another answer is that if the appellants had exercised their rights to remove timber during the one year extension, their direct appeal would have been subject to dismissal on the theory that they had accepted the benefits of the chancellor’s decree and, therefore, waived their appeal.

Affirmed on direct and cross-appeal.

Purtle, J., not participating.


author: Frank Holt, Justice,

text:
    THE HARTFORD FIRE INS. CO. and ROYAL INDEMNITY CO. v. STATE FARM MUTUAL AUTOMOBILE INS. CO.
    78-177
    574 S.W. 2d 265
    Opinion delivered December 18, 1978
    (Division I)

      William Stephen Crain, for appellants.

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellee.
   Frank Holt, Justice,

the issue here is whether an accidental death caused by the discharge of p gun left in an insured vehicle while the gun was being helíí by a person inside the parked vehicle is an injury “arising out of the ownership, maintenance, or use” of the insured vehicle. The trial court held that appellee’s insurance policy did not provide coverage and we agree.

Appellee’s insured, W. G. Dining, owned a camper which was primarily used as a recreational vehicle. The camper was parked in the carport adjoining the residence without the motor running or keys in the ignition. His son, Tanner, age 15, and a neighbor’s son, Tommy Whaiquist, age 15, were playing inside the parked vehicle. Tommy picked up a loaded .22 caliber pistol from under some bed cover on a rear shelf of the camper, and playfully pointed it at Robert Wilson McClintock, age 13, another neighbor’s son who was outside the camper. The weapon discharged, causing Robert’s unintentional death. The gun was usually kept loaded in a tackle box in the camper. Robert’s death resulted in a wrongful death action. Appellants Hartford and Royal had issued home owners insurance policies respectively to Whaiquist and Dining. Appellants negotiated a settlement for $30,000 to which appellee refused to contribute. Appellants then brought this action against appellee seeking a pro rata contribution in the amount of the settlement. The court found that appellants were not entitled to indemnity from appellee because the death was not “causally related” to the operation of the automobile and “did not arise out of the ownership, maintenance or use” of the vehicle as required by appellant’s policy.

Appellants assert this was error. They argue the fact the gun’s owner, an insured, usually kept the gun in a tackle box in the camper demonstrates the causal relation with the use of the vehicle, and that “the actions and inactions of the insured, together with other facts and circumstances, create the totality of the circumstances where the injury occurred and in such manner and was a foreseeable consequence and within the language of appellee’s policy.” They agree that this court has not dealt with this fact situation. However, they analogize this case to our cases Owens v. Ocean Accident and Guaranty Corp., 194 Ark. 817, 109 S.W. 2d 928 (1937); and State Farm Mutual Ins. Co. v. LaSage, 262 Ark. 631, 559 S.W. 2d 702 (1978). In Owens we held that the insurer of an ambulance was liable for an injury caused to a woman being transported on a stretcher from her house to the ambulance, under the “ownership, maintenance, and use” clause in the policy insuring the ambulance. There we held this constituted “an essential transaction . . . closely identified with the operation of” the vehicle as an ambulance. In LaSage he was hit by a hit-and-run vehicle. He chased that vehicle and was injured when the vehicle stopped so suddenly that LaSage had to hit the vehicle or run into a ditch. Obviously, these cases are in-apposite to the case at bar.

There are several cases from other jurisdictions where the courts have dealt with situations similar to the one presented here; i.e., the question of an automobile insurer’s liability for injuries caused by the accidental discharge of a gun by a person in the insured vehicle. Brenner v. Aetna Ins. Co., 445 P. 2d 474 (Ariz. 1968); American Liberty Ins. Co. v. Soules, 258 So. 2d 872 (Ala. 1972); U.S. Fidelity & Guaranty Co. v. Western Fire Ins. Co., 450 S.W. 2d 491 (Ky. 1970); and Raines v. St. Paul Fire & Marine Ins. Co., 175 S.E. 2d 299 (N.C. 1970). These cases have uniformly held that an injury caused by the accidental discharge of a gun held by a person who is in a moving or motionless vehicle is not an injury “arising out of the use of” the vehicle.

In an annotation on the subject in 89 A.L.R. 2d, it is stated at page 153:

All the cases agree that a causal relation or connection must exist between an accident or injury and the ownership, maintenance or use of a vehicle in order for the accident or injury to come within the meaning of the clause ‘arising out of the ownership, maintenance, or use’ of a vehicle, and where such causal connection or coverage is absent coverage will be denied.

We are of the view that the accidental death of Robert Wilson McClintock cannot be said to be causally related to the use of the camper. As to causation, the accident could just as easily have occurred in a field, in the driveway, or in a hunting lodge. The fact the person discharging the pistol was inside the vehicle at the time of this accident does not make the injury one “arising out of the ownership, maintenance, or use” of the camper. Consequently, appellee’s policy provided no coverage in this situation.

Affirmed.

We agree: Harris, C.J., and George Rose Smith and Howard, JJ.


author: Darrell Hickman, Justice.

text:
    Claradean Nesby TAYLOR et al v. EDOE, INC., A Corporation et al
    78-168
    574 S.W. 2d 894
    Opinion delivered December 18, 1978
    (Division II)
    [Rehearing denied January 22, 1979.]

      George Van Hook, Jr., for appellants.

      David Solomon, for appellees.
   Darrell Hickman, Justice.

Edoe, Inc., a family-held corporation and Abe J. Davidson, trustee, appellees, filed suit in Phillips County Chancery Court to obtain a judgment on ten promissory notes signed by Claradean Nesby Taylor, the appellant, and to foreclose a deed of trust she signed on about 99 acres of land she owned in Phillips County.

Mrs. Taylor filed an answer to the complaint and a cross-complaint against Abe Davidson, essentially alleging that Mrs. Taylor lacked legal capacity to execute the notes and the deed of trust. The cross-complaint sought an accounting of Davidson, who had provided Mrs. Taylor funds and goods over a period of years, for all his financial dealings with Mrs. Taylor. Before trial, Titus Taylor filed a petition to intervene saying he was Mrs. Taylor’s court-appointed guardian. (Although there is no evidence in the record, it was not disputed that Taylor had been appointed guardian in 1971.) The intervention was apparently permitted and an identical answer and cross-complaint was filed by him as had been filed on behalf of Mrs. Taylor. Davidson promptly answered the first cross-complaint but did not file an answer to the second one.

The chancellor granted judgment to Edoe for $67,-302.35, plus a $5,000.00 attorney’s fee and denied any relief to the appellant. The appellant has also failed to convince us on appeal of any .merit to her ease.

The appellant’s chief argument is that Mrs. Taylor lacked legal capacity to sign the notes and deed of trust in question.

It was not disputed that Mrs. Taylor was committed to the Arkansas State Hospital in 1962 and 1963 by court order for nervous disorders, and that there was no certification of discharge filed either time as required by Ark. Stat. Ann. § 59-235 (Repl. 1947). [Pertinent provisions of that statute are now contained in Ark. Stat. Ann. § 59-409 (Repl. 1971).] It was also undisputed that Mrs. Taylor was released from the hospital each time after a period of a few months.

In 1963, the Probate Court of Phillips County, in guardianship proceedings, approved the execution of a mortgage to Abe Davidson by Mrs. Taylor’s guardian to secure an indebtedness to him of $21,582.66. On July 27, 1964, the guardianship was terminated, and Claradean Nesby Taylor was adjudicated to be legally competent in that proceeding. The evidence indicated that in 1969, ten new promissory notes were executed to Abe Davidson, together with a deed of trust on the same land. The underlying obligation for the notes was for merchandise received; cash advances for payment of insurance, taxes and other bills; refinancing of the original $21,582.66 debt; and, 10% interest. It is these ten notes which were later assigned to the Davidson family corporation, Edoe, that were the subject of the judgment of the trial court.

Since there was no record that she had ever been declared competent after her release on both occasions from the Arkansas State Hospital, the appellant argues that she was legally incompetent when the instruments were signed in 1969. The appellant cites Ark. Stat. Ann. § 59-235 (Repl. 1947) as authority, which states in part:

. .. When a patient has been committed to the State Hospital, or who has been adjudged incompetent by a Probate Court, for the purpose of guardianship, and later been discharged by the Superintendent after having recovered mentally, the Superintendent shall certify this fact to the Probate Court of the county in which the patient resides, and upon receipt of this certificate the Court shall issue an order removing his disability and restoring him to his normal legal status.

The appellant offered certain oral testimony regarding her mental condition. Her brother-in-law, Otis Williams, testified that sometimes she acted normal but if she was upset she was “bad”, and “she didn’t seem like she had good sense. ” Mrs. Reilly McKissic said she had been nervous since 1963 and was prone to get hysterical. Pearlie Nesby Williams, a sister of Mrs. Taylor’s, said that since 1963 she had frequent nervous breakdowns. Her nineteen year o[d daughter said her mother was easily upset and at times would react physically. Her husband testified that she was “crazy.”

There was no medical testimony offered, nor was the guardian appointed for her in 1963 called to testify. Her brother-in-law, Otis Williams, admitted that at times Mrs. Taylor was normal except when she got upset. Mrs. McKissic said that when she was not doing well she would see her two or three times a week; when she was doing all right she would see her every week or so. None of the witnesses testified regarding her mental state on March 13, 1969, the day the notes and mortgage were executed.

Of course it is the burden of one challenging mental capacity to prove it. Simmons First Nat’l. Bank v. Luzader, 246 Ark. 302, 438 S.W. 2d 25 (1969). The fact that Mrs. Taylor was adjudicated insane is merely prima facie evidence of incapacity which may be rebutted. Brown v. State, 219 Ark. 647, 243 S.W. 2d 938 (1951). Also, there is a presumption that when one is discharged from the State Hospital any presumption that may be attendant to one’s hospitalization or commitment to the State Hospital is nullified. See Feild v. Koonce, 178 Ark. 862, 12 S.W. 2d 772 (1929); Federal Land Bank of St. Louis v. Lewis, 199 Ark. 120, 132 S.W. 2d 810 (1939).

Therefore, the presumption of insanity due to the 1962 and 1963 commitments is rebutted by the fact that Mrs. Taylor was released from the hospital, even though that fact was never certified to the probate court.

Consequently, appellant bore the same burden that he would have borne had there been no adjudication of mental incompetency. There is a presumption of competency; to overcome this presumption, it was necessary for appellant to show that Mrs. Taylor lacked the mental capacity to execute the instrument in question at the time of execution. Simmons First Nat’l. Bank v. Luzader, supra.

The test of mental capacity is whether one possesses sufficient mental capacity to retain in the memory, without prompting, the extent and condition of one’s property and to comprehend how one is disposing of it and to whom. Pledger v. Birkhead, 156 Ark. 443, 246 S.W. 510 (1923). The chancellor found that the appellant had failed to meet his burden of proof regarding mental capacity.

We have carefully reviewed the evidence in this case and we cannot say that the chancellor’s finding regarding mental capacity is clearly against the preponderance of the evidence. Although Mrs. Taylor had been in and out of the State Hospital and had nervous problems, we cannot point to any evidence that clearly shows she was incapable at the time of execution of knowing about her property and being able to deal with it.

The appellant also argues that the chancellor erred in not ordering an accounting since a fiduciary relationship existed between Mrs. Taylor and Davidson. This argument assumes the existence of such a relationship. However, there is no evidence in the record to establish a fiduciary relationship between the parties and we cannot say the chancellor’s refusal to order an accounting was clearly incorrect.

The appellant also argues on appeal that since the court found a failure of consideration, then judgment should not have been entered for the amount sought. Abe Davidson testified (and his records left a lot to be desired) that most of his original records were destroyed in a tornado before 1965. He recited credits that he had given the Taylors down through the years, as well as advances since 1968. In a memorandum to counsel, the chancellor stated that there may have been a partial failure of consideration and that the guardian may be entitled to a credit.

The attorney for the guardian was told he would be given an opportunity to present to the court any figures warranting a credit before judgment was entered. A year and a half later, with no evidence that any figure was submitted to the court, judgment was entered for the amount asked for by the appellees. This matter should have been taken care of at the trial level within the time allotted by the court, which was generous.

The appellant also argues since Davidson was in default on the second counterclaim filed by the guardian on behalf of Mrs. Taylor, the court should, as a matter of course, order an accounting by Davidson. The trial court ruled that there was no default since Davidson had answered the first answer and cross-complaint filed which was identical in all respects to the second one and, therefore, there was no default. We agree with the chancellor’s decision in this regard.

Affirmed.

We agree.

Harris, C.J., and Fogleman and Byrd, JJ.


text:
    Ross Paul MAY v. RYDER TRUCK RENTAL, INC.
    78-174
    574 S.W. 2d 264
    Opinion delivered December 18, 1978
    (Division II)

      Greg B. Brown, for appellant.

      Wright, Lindsey & Jennings, for appellee.
   Darrell Hickman, Justice.

The only question on appeal of this case is the correctness of the trial court’s ruling sustaining the demurrer to the complaint. The court was correct and the decision is affirmed.

Ross Paul May, the appellant, filed a complaint in the Circuit Court of Pulaski County against Ryder Truck Rental, Inc., the appellee, alleging: a Ford van belonging to Ryder was stolen from Ryder’s place of business; the thief, less than one hour after the theft was reported, ran the van into May’s vehicle, which was legally parked, extensively damaging it; and, the damages were proximately caused by Ryder’s negligence because Ryder refused or failed to adequately guard against trespass on its property, Ryder refused or failed to adequately safeguard against theft or unauthorized control of its vehicles, Ryder refused or failed to adequately protect against the van’s removal from Ryder’s property, and Ryder otherwise failed to act as an ordinary prudent person would.

Ryder demurred to this complaint alleging it did not state a cause of action. Ark. Stat. Ann. § 27-1115 (Repl. 1962). May, rather than seeking to amend his complaint, elected to stand on it. The court properly sustained the demurrer.

There is not a single act alleged that Ryder did or failed to do what was claimed to be the proximate cause of damage in the case. Although both parties argue in their briefs as though Ryder was alleged to have left a key in the vehicle, such an allegation was not made in the complaint.

A demurrer admits all facts alleged but not conclusions. The only allegations of negligence are conclusions of law and, therefore, the demurrer was properly sustained. Herndon v. Gregory, 190 Ark. 702, 81 S.W. 2d 849 (1935); United Interchange, Inc. v. Rowe, 230 Ark. 905, 327 S.W. 2d 547 (1959).

Affirmed.

We agree.

Harris, C.J., and Fogleman and Byrd, JJ.


text:
    Robert Neil POLLARD v. STATE of Arkansas
    CR 78-51
    574 S.W. 2d 656
    Opinion delivered December 18, 1978
    (In Banc)
    [Rehearing denied January 12, 1979.]

      Vincent E. Skillman, Jr., of Skillman, Durrett & Davis, for appellant.

      Bill Clinton, Atty. Gen., by: Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Robert Neil Pollard was charged, along with two others, with manufacturing (growing) marijuana on Brandywine Island which is located in the Mississippi River next to Crittenden County, Arkansas. Pollard was convicted and sentenced to five years in the Arkansas Department of Correction.

On appeal he alleges two errors: a motion to suppress certain evidence found in a house he occupied should have been granted; and, there was insufficient corroborating evidence of an accomplice’s testimony to sustain his conviction.

The first argument has no merit. The court, after a hearing, found that a valid search was conducted, either on the basis of consent of the owner of the house, who was not Pollard, or because Pollard had abandoned the house. On review, after making an independent determination, based upon the totality of the circumstances, we cannot say the trial court was clearly erroneous in its findings. State v. Osborn, 263 Ark. 554, 566 S.W. 2d 139 (1978).

Pollard’s other argument has merit. The case was well prosecuted, based primarily on the testimony of a woman Pollard was living with, Sandra Kay Harris, who was an accomplice. She was granted immunity and her testimony was that Pollard, with others, was guilty of growing the marijuana on Brandywine Island.

The two others charged with Pollard were Garland Stokes, an employee of the Arkansas Game and Fish Commission, and Dorse Sutherland, a crop duster. Both testified denying participating in the crime; neither implicated Pollard.

Stokes, whose duties included supervising Brandywine Island, which is a ten thousand acre island in the Mississippi River leased by the Game and Fish Commission from U.S. Gypsum Company, admitted that he had found marijuana growing on the island. In fact, he had cut some of the marijuana, according to Stokes, for the purpose of destroying it.

Stokes admitted that he knew Sutherland and Pollard as friends and that Pollard had frequently been on the island. Stokes admitted that Pollard had loaned him a three-wheel motorcycle and a six-wheel all terrain vehicle for use on the island.

Without reviewing all of the evidence produced by the State, and it is voluminous, suffice it to say we have searched and cannot find sufficient evidence to corroborate the testimony of the accomplice to sustain this conviction.

There is no corroborating evidence that Pollard planted or cultivated the four fields of marijuana found on Brandywine Island. There is only evidence that could raise a suspicion of such activity.

For example, the State argues that evidence showed that Pollard built a hot bed behind his mother’s house in Crittenden County where he planted several plants of marijuana; that both vehicles he owned, the three-wheel motorcycle and the all terrain vehicle, were on the island and he was seen riding these vehicles; a state policeman testified that he had seen three-wheel tracks, similar to those made by the motorcycle, at the edge of one of the fields; there was evidence that Pollard had been on the island numerous times; there was testimony that Pollard had purchased blood meal in Memphis, which the accomplice testified was used on the plants to ward off animals; records were produced that showed a “Bob Pollard” purchased three thousand disintegrating peat pots, which according to the accomplice were used for planting marijuana seeds.

There was evidence that marijuana was in the attic of a house Pollard occupied and that some marijuana had been burned in the backyard before Pollard left the premises.

We could go on reciting the various evidence but it only raises a suspicion of guilt. There is no evidence that the blood meal was used on the island, aside from the accomplice’s testimony. There is no evidence that Pollard was, in fact, the “Bob Pollard” who purchased the peat pots. There is no evidence that marijuana was taken from Brandywine Island and placed in Pollard’s residence. There is no evidence that tends to connect Pollard to planting, cultivating or possessing the marijuana found on the four fields in question.

The Arkansas Legislature, in its wisdom, has provided that one cannot be convicted on the testimony of an accomplice alone. Ark. Stat. Ann. § 43-2116 provides:

A conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. Provided, that in misdemeanor cases a conviction may be had upon the testimony of an accomplice.

We have recognized that circumstantial evidence may be used, but it must be of a material nature and legitimately tend to connect the defendant with the crime. Roath v. State, 185 Ark. 1039, 50 S.W. 2d 985 (1932). Also, we have said that evidence which merely raises a suspicion that an accused may be guilty, or which is as consistent with a defendant’s innocence as guilt, is not sufficient. Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943).

Certainly, there is plenty of evidence that something may have been going on of a suspicious nature. However, when we apply the law to the facts in this case, we just ask the question, where is the evidence, aside from the accomplice’s testimony, that Pollard planted or cultivated this marijuana on the island? It is simply not there. Therefore, we have no alternative but to reverse the judgment of the trial court.

Ordinarily, this case would be remanded for an opportunity for the State to re-try the case. However, the United States Supreme Court has recently decided that the Double Jeopardy Clause of the United States Constitution precludes a second trial once a reviewing court has determined that the evidence introduced at trial was insufficient to sustain the verdict. In Burks v. U.S., 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978), the court made such a decision in applying the Double Jeopardy Clause to federal cases. In Greene v. Massey, 437 U.S. 19, 98 S. Ct. 2151, 57 L. Ed. 2d 15 (1978), the United States Supreme Court made the same application to state criminal proceedings. Consequently, the judgment is reversed and the cause dismissed.

Reversed and dismissed.

Fogleman, J., not participating.

Byrd, J., dissents.


author:
George Howard, Jr., Justice. George Rose Smith, Justice, Per Curiam.
      Conley Byrd, Justice,

text:
    THE LITTLE ROCK SCHOOL DISTRICT of Pulaski County, Arkansas v. CELOTEX CORPORATION et al
    78-137
    574 S.W. 2d 669
    Opinion delivered December 18, 1978
    (In Banc)
    [Supplemental Order on Petition for Rehearing Granted in Part and Denied in Part, February 19, 1979.]

      Friday, Eldredge & Clark, by: Michael G. Thompson and G. Ross Smith, for appellant.

      Rose, Nash, Williamson, Carroll, Clay & Giroir, by: Phillip Carroll; Laser, Sharp, Haley, Young & Huckabay, P.A., by: Jacob Sharp, Jr., and Peter B. Heister; and Wright, Lindsey & Jennings, for appellees.
   George Howard, Jr., Justice.

This appeal involves an action, instituted in the Pulaski Circuit Court, by the Little Rock School District for breach of both an express and implied warranties and negligence, in the construction of a roof for a new high school facility, against the following firms:

(a) Matson, Inc., a general contractor, hereinafter called Matson;
(b) Ginocchio, Cromwell, Carter and Neyland, Inc., an architectural firm that prepared the plans and specifications for the project, hereafter referred to as Cromwell;
(c) Knox Gill Company, a sub-contractor who performed the roofing work and sold the roofing materials, hereinafter designated as Knox; and,
(d) Celotex Corporation, the manufacturer of the roofing material used in constructing the roof.

We are to determine essentially whether the trial court committed error in holding, as a matter of law, that there was neither an expressed nor an implied warranty involved; and that the statute of limitations rendered the negligence claim unenforceable and that limitations would be equally effective against any warranties had there been any warranties involved. The trial court’s holding resulted in the following:

1. Summary judgment granted in behalf of Matson during a pre-trial conference on the ground that the District’s action was barred by statute of limitations;
2. Summary judgment granted to Knox and Cromwell immediately prior to trial on the theory that the District’s action was barred by the statute of limitations;
3. Summary judgment to Celotex on the negligence claim immediately prior to trial; and,
4. Directed a verdict in favor of Celotex on the issue of expressed and implied warranties at the close of the District’s case.

THE FACTS

On November 1, 1966, the District entered into a contract with Matson, as geñeral contractor, for the construction of Parkview High School. Matson entered into a sub-contract with Knox for performance of the roofing work, for a total consideration of $77,859.00. The roofing materials, also referred to as “roofing system,” used in the construction of the roof was a “celotex two-ply 20 year roof” containing a 20 year bond to cover defects caused by normal wear and tear. The roofing material was sold by Knox, but was manufactured and marketed by Celotex.

The roofing system consisted of two plies of coated roofing felts which would be used in lieu of the traditional four-plies. Celotex advertised extensively that this system was equivalent to the traditional four-ply system.

Cromwell prepared the plans and specifications for the facility, including the roofing specification based on information supplied to Cromwell by Celotex regarding the integrity of the two-ply roofing system in meeting the District’s job requirements and needs.

The structure was completed in 1968, and almost immediately, the District discovered leaks in the roof. These leaks continued intermittently from 1968 to March 25, 1975. During the period between 1968 and March 25, 1975, numerous repairs were made to the roof, through the joint activity of Cromwell and Knox and, for a substantial part of the period, by Celotex. However, the District was led to believe that the general condition of the roof was excellent; and that in spite of the numerous problems registered about the roofing system, it was feasible that the roof would last through its normal expectancy of 20 years.

On March 25, 1975, Cromwell advised the District that the Celotex two-ply roofing system was a failure and had to be replaced. The District took steps to have the entire roof removed and replaced by a different contractor at a cost of $155,120.00.

The District instituted its lawsuit, on March, 25, 1975, against Matson, Knox and Celotex.

HOLDING OF THE TRIAL COURT

In granting a directed verdict in behalf of Celotex, at the close of the District’s case, the court stated, in part:

“In summary, for the purpose of review, the decision to direct a verdict for defendant is based on the following principles.
“1. There was no express warranty. A breach of contract was barred by the Statute of Limitations.
“2. There was an implied warranty of fitness but again this action was brought some seven years later after installation and thus the Statute of Limitations applied.
“3. Plaintiffs strongly urge that the case of Louisville Silo and Tank Co. v. Thweatt, 174 Ark. 437, supports its theory that the Statute of Limitations is tolled by the making of repairs. I disagree because in said case an express warranty was involved.
“4. Plaintiff’s relief in this matter, after four years from date of installation, must be restricted to the remedial repairs under provisions of the bond.”

THE DECISION

EXPRESS WARRANTY

It is clear from the evidence in this record that the plans and specifications, relating to the roof, were prepared by Cromwell, with input from Celotex in the form of information regarding the merits of Celotex’s two-ply roofing system, to meet the requirement of the District, which had traditionally used the four-ply system, for a roof with a durable life span of 20 years.

Literature and brochures supplied by Celotex, in connection with its advertising and promotion program of the two-ply system, contain, among other things, the following affirmations and statements as to the quality and condition of the two-ply roofing system:

1. 1 + 1 = 4. Meaning that two plies of Celotex’s bond ply are equivalent to four plies of conventional roofing.
2. You are assured of GREATER QUALITY, WEATHER PROTECTION and LONG LIFE than ever before possible.
3. Provides excellent weather protection even before the surface operation is complete.
4. You get what you specify.
5. Bonded for up to 20 years.
6. The revolutionary new system that takes the guess work out of built-up roofing.
7. A Smash Hit!
8. Trouble-free roofing system in a large number of installations.

Robert Dugger, who was regional manager of “Built-up Roofing” for ten years and is currently serving as manager of Architectural Services for Celotex, testified that the roof in question was bonded as a 20 year roof; that Celotex took the position and so advised its customers that the two-ply system would give them a roof comparable in quality and in terms of useful life similar to that offered by the traditional four-ply system.

Mr. Dugger also testified, with reference to problems encountered with the two-ply system:

“A. The rate of failure, of course, relates directly to the sale of the product and, naturally, the rate of problems with the bond-ply for the last few years have been greater than with any other system primarily because during the period of, say ’66, ’67, ’68, on through those years basically that was all we were selling so the rate of problems can always be connected directly with the product you’ve sold.
“A. I would say if there is a problem, a pattern, it would probably be blistering. Roofing generally fails for two reasons, blistering and splitting.
“A. Bond-ply has approximately half of the tensile strength of a four-plv system. Maybe I should say tensile strength to keep it in the proper perspective.”

Mr. Duggar further testified that to his knowledge, there were between 50 and 60 lawsuits pending against Celotex throughout the United States involving its two-ply roofing system; and that some of the suits were filed as early as the latter 1960’s.

It is well recognized that an express warranty may be inferred from statements and affirmations by a seller relating to the quality and condition of his goods, which induce the purchase and on which the buyer relies and the seller intended that the buyer should do so. Furthermore, when, under circumstances surrounding a sale such as we have in the instant case, intent or motive becomes an issue, in a claim of a purported express warranty as having been made, and, especially where the parties involved have assumed conflicting postures regarding the facts and circumstances, the question or issue is generally one of fact; thus, the matter falls within the province of the jury for resolution. However, it is plain, if there is no conflict in the evidence and only one reasonable inference can be drawn from the evidence, intent and motive may become a question of law to be determined by the court. City of Paragould v. International Power & Machinery Company, 233 Ark. 872, 349 S.W. 2d 332 (1961); See Also: Lloyd v. James, 198 Ark. 255, 128 S.W. 2d 1019 (1939); Ives v. Anderson Engine & Foundry Co., 173 Ark. 112, 292 S.W. 111 (1927).

The trial court, in articulating its finding that Celotex had not made an express warranty, stated in part:

“Express Warranty: It means to be explicit which is defined as characterized by full, clear expression without vagueness or ambiguity — leaving nothing to be implied. It is a plain distinct expression that leaves no need for the reader or hearer to infer anything. In this case, the only evidence relating to warranty is to be found in publications of the defendant. Nothing in these publications is explicit and certainly leaves a reader or hearer to infer or draw their own conclusions and interpretations. This is made clear when numerous questions were asked of expert witnesses as to their individual understanding of what a twenty year flat bond roof means. After hearing the evidence pertaining to roofing problems and the many and various reasons for such problems, it is understandable why bonds for repairs are made available rather than an explicit guarantee for a twenty year period irrespective of cause. The Court concludes, as a matter of law, there was no express warranty in this case.”

We perceive that the trial court’s proscriptive definition of an express warranty is not compatible not only with the case law cited herein, but is diametrically opposed to Arkansas’s Uniform Commercial Code in delineating circumstances giving credence to express warranties. For example, relevant parts of Ark. Stat. Ann. § 85-2-313 provide:

“(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise.
(b) Any description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description.
“(2) It is not necessary to the creation of an express warranty that the Seller use formal words such as ‘Warrant’ or ‘Guarantee’ or that he have a specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the Seller’s opinion or commendation of the goods does not create a warranty.”

After carefully reviewing the record before us, which contains numerous exhibits, we are persuaded that it cannot be said that the evidence or the posture taken by the parties is not conflicting, as to whether or not the advertisement, affirmations and statements made by Celotex were a basis for an express warranty. Moreover, it cannot be said that credibility of witnesses will not be a determinative factor in concluding whether or not the purported statements and affirmations were designed to, and if in fact did, induce the District or its representatives to purchase the two-ply system. We conclude, therefore, that the trial court committed error in directing a verdict in favor of Celotex on the District’s claim of express warranty. We are persuaded that the issue should have been submitted to the jury for resolution, for it is plain that the District made a prima facie case.

LIMITATIONS

We further conclude that the issue of limitations on the District’s claims for damages presented a question of fact, under the circumstances existing in this case, thus, the jury should have been afforded an opportunity to determine whether or not the conduct of Knox, Cromwell and Celotex tolled the statute of limitations by their joint efforts to repair the roof between 1968 and March 25, 1975. See: Louisville Silo & Tank Co. v. Thweatt, 174 Ark. 437, 295 S.W. 710 (1927), where we stated:

“We hold therefore that, while the statute of limitations ordinarily begins to run against an action for breach of warranty upon the sale and delivery of a chattel which does not comply with the warranty, yet the statute is tolled so long as the vendor insists that the defect can be repaired and is attempting to do so. . . . ”

IMPLIED WARRANTY

We are persuaded that our case, General Motors Corporation v. Tate, 257 Ark. 347, 516 S.W. 2d 602 (1947), is dis-positive of the issue of implied warranty of fitness and, accordingly, we affirm the trial court in holding that an implied warranty of fitness cannot explicitly extend to future performance. We, therefore, affirm the trial court as to this issue, but as to all other issues tendered in this appeal, we reverse.

Reversed.

George Rose Smith and Fogleman, JJ., dissent.

George Rose Smith, Justice,

dissenting. There certainly was no express warranty in writing. To the contrary, the circumstances absolutely contradict and negate that possibility. As part of the bargain Celotex furnished a surety bond, with Aetna Casualty & Surety Company as surety, guaranteeing that for a period of 20 years leaks would be repaired by Celotex, up to a maximum expenditure of $10,350. The school district paid a $2,070 premium for that “20-year Guaranty Bond. ” When two contracts are executed as part of the same transaction they are to be construed together, as one instrument. Gowen v. Sullins, 212 Ark. 824, 208 S.W. 2d 450 (1948). How can it be supposed that the parties were agreeing upon a 20-year express warranty when at the very same time the school was paying a substantial premium for a service contract by which Celotex bound itself to repair any leaks, up to a total expenditure of $10,350?

With respect to the possibility of a parol warranty, the majority opinion discusses “affirmations and statements” in literature and brochures supplied by Celotex in its advertising and promotion program. The opinion then lists eight numbered statements which apparently are considered by the majority to amount to an express warranty.

There are two insurmountable obstacles in the path of the majority’s reasoning. First, the statements were mere advertising which appeared on the jacket of a phonograph record that Barrett, Celotex’s predecessor, used promotionally. The statements are nothing more than a seller’s commendation or “puffing” of its own goods, which do not amount to a warranty under the Uniform Commercial Code. Ark. Stat. Ann. § 85-2-313 (2) (Add. 1961). Indeed, the only positive statement among the enumerated eight is that two plies of Celotex’s bond ply are the equivalent of four plies of conventional roofing. Even so, there is no proof whatever that a conventional four-ply roof is warranted to last for 20 years. Quite the opposite, such roofs appear at most to be accompanied by a surety bond such as the one offered by Celotex with its two-ply roof. So the two were apparently equivalent, as they both qualified for the same kind of guaranty bond.

576 S.W. 2d 709

Second, there is no showing that the architect, the contractor, or the school district ever saw the advertisement stressed by the majority, much less is it shown that any of those contracting parties relied upon the advertisement in deciding to use the two-ply roofing system. Yet the fact now develops, according to the majority opinion, that the statements in the unseen advertising matter constituted an express contract between the parties, upon which their minds met and came to an agreement. I simply do not see how a court can seriously reach such a conclusion and therefore record my dissent.

Fogleman, J., joins in this dissent.

Supplemental Order on Petition for Rehearing

78-137

February 19, 1979

Per Curiam.

The petitition for rehearing filed by the architects, Cromwell, Neyland, Truemper, Levy and Gatchall, Inc., is granted, for the reason that the only cause of action asserted against them is based upon negligent design, not breach of warranty, and that action is barred by the statute of limitations. The other petitions for rehearing are denied.

Harris, C.J., dissents.

Byrd, J., dissents.

Smith and Fogleman, JJ., would grant rehearing to all appellants.

Conley Byrd, Justice,

dissenting. One of the troubles with per curiam orders is that like Mother Hubbard’s dress, they cover everything and tell nothing. The percuriam by the majority in holding that the statute, Ark. Stat. Ann. § 37-237 (Acts 1967, No. 42), has run against the architects, neglect to state that although the architect certified the building as complete in 1968 he continued to act on the roofing matter on the following days, to-wit:

2-11-69
7- 28-69
11-09-69
11- 17-70
12- 23-70
12-29-70
2-01-71
2-09-71
2- 18-71
3- 04-71
3- 23-71
4- 27-71
6-04-71
6-24-71
8- 10-71
8-30-71
10-01-71
2-18-72
11- 02-73
12- 15-73
1-04-74
1-08-74
1- 18-74
2- 22-74
2- 27-75
3- 18-75
3-26-75

As late as 11-2-73 the architect was “pleased with the general appearance of the roof and (Knox Gill’s) concern for keeping the building watertight. ” It was not until 3-26-75 that the architect concluded that the roof had failed. It was only when the school board made demand upon Celotex that they learned of the fact that the roof may have been negligently designed.

Since the architect remained in the same fiduciary capacity to the school board at all times and consistently pointed the finger at Celotex and Knox Gill for the trouble with the leaks, I submit that such conduct in law amounts to concealment of the fact that there was anything wrong with the design. In such situations the courts of this nation almost universally hold that such conduct tolls the running of the statute of limitations. The reason for so holding is stated in 51 Am. Jur. 2d Limitation of Actions § 147 as follows:

“The reasoning adopted in support of the general rule is that to hold that the statute of limitations ran in favor of a person who had concealed the cause of action under such circumstances would be to permit the defendant to take advantage of his own wrong and to sustain a defense of which in good conscience he ought not to be permitted to avail himself. . . .”

With reference to whether or not there was a concealment, 51 Am. Jr. 2d Limieation of Actions § 149 points out that where “. . . there are fiduciary or confidential relations between the parties, there needs to be no evidence of a fraudulent concealment other than that implied from the transaction itself.”

For the reasons herein stated, I respectfully dissent from the majority’s per curiam order stating that the statute had run against the architect.

      None of the parties appealed from the summary judgment granted to Matson.
      The District appealed from the judgments dismissing its action against Knox, Cromwell and Celotex. Celotex cross appealed from the judgment dismissing its third party complaint against Cromwell and Knox in order to preserve its claim for contribution or indemnity in the event this Court should reverse the trial court’s action in dismissing the District’s case against Celotex. Knox also cross appealed to preserve its claim, in case of a reversal, against Cromwell and Celotex.

      Celotex sought to disclaim any responsibility for leaks in the roof due to splitting of the roofing membrand in a letter to Knox dated April 6, 1971. However, it does not appear that Celotex took any steps to advise the District of its posture relative to the problems that the District was realizing between April 6, 1971, and March 25, 1975.

      The following is a part of a progress report dated February 18, 1972, made by Cromwell to the District regarding roofing repairs:

        “Administration (Unit 4) — Repairs were made to evident blisters and splits. ...”

        “Library (Unit 5) — Repairs were made to evident blisters and splits. Two plies of #15 tarred felt were placed over the existing membrane. ...”

        “Language, Arts and Social Sciences (Unit 8) — Approximately 90% of this roof area has been reworked. ...”

        "Fine Arts (Unit 9) — This area was re-worked as required, including spot patching of all blisters and defects. ...”

        "Dining (Unit 6) — This roof area has been completely reworked except for the roofing within the penthouse fence.”

        "Math and Science (Unit 2) — Approximately 25 squares of roofing were repaired over the locker areas. . . . Repairs were also made at a split in this area by installing a composition flashing slip joint over the split.”

        "Other Roof Area: — The balance of the roof areas were repaired where blisters and other defects were evident. The repairs including cutting out the blister or defect, spot patching and re-coating with pitch and gravel surfacing.”
      On February 22, 1974, Cromwell advised the District as follows in a communication addressed to the Assistant Superintendent:
      “I have reviewed the history of this roofing system. Our position at the present time remains the same. That is, there is insufficient evidence to conclude that there is a total failure in the roofing system. The failures that have occurred are due to a weakness in the system and a specific area weakness.
      “At the present time we feel that this system of notification and repairs is the best procedure that can be followed unless more dramatic failures occur.”

      The 20 year guaranty bond, dated April 26, 1968, submitted to the District in connection with the two-ply roofing system limits Celotex’s liability to the sum of $10,350.00, while, on the other hand, the bond contains the following statement:

        “Whereas, Celotex, Principal, hereby guarantees, as set forth herein, that during a period of twenty years from said date of completion of roof, Celotex will at its own expense repair or cause to be repaired, leaks developing in a Roof which are caused by ordinary wear and tear by the elements. ...”
      Celotex, by letter dated April 6, 1971, to Knox, among other things, made the following statement relative to its responsibility under the 20 year guaranty bond:
      “I have discussed the condition of the roof and Mr. Parker’s report with the people in Tampa and a decision has been reached that under the terms of the bond, The Celotex Corporation must disclaim any responsibility for leaks in the roof due to splitting of the roofing membrane.”

      Mr. Dugger also testified that during 1963 and 1964, Celotex conducted field tests on its two-ply system and that it was discovered that problems with the system can develop from the installation of the roofing by unskilled people employed by a roofing contractor.