author: Marian F. Penix, Judge.

text:
    Clay JACKSON et al v. PETIT JEAN ELECTRIC CO-OP
    CA 79-314
    599 S.W. 2d 402
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Petition for rehearing denied May 28, 1980
    Released for publication May 28, 1980

      Brazil & Roberts and Chester C. Lowe, for appellants.

      Wright, Lindsey & Jennings, for appellee.
   Marian F. Penix, Judge.

This is an appeal from a summary judgment rendered July 19, 1979. The appeal is brought by the plaintiff Clay Jackson and by the intervenor, Seaboard Fire & Marine Insurance Company. Seaboard is the Workers’ Compensation Insurance Carrier for Johnson Construction Company, Jackson’s employer.

On January 22, 1974, Jackson , was injured while working as a lineman for Johnson Construction Company. His employment resulted from a contract between Johnson Construction Co. and Petit Jean Electric Coop Corporation, the defendant in lower court and the appellee here, by which Johnson would install transmission lines. Jackson sued Petit Jean for $2,500,000.00 to recover damages for injuries sustained as a result of an electrical shock. This shock resulted from his touching a “hot wire” while attempting to build new transmission lines. Jackson’s complaint charged Petit Jean with negligence in (1) failure to use ordinary care to insulate wires (2) failure to de-energize its lines during the period of time Jackson worked (3) failure to require Johnson Construction Co. to provide sufficient safety devices or proper supervision and (4) failure to select a competent independent contractor to perform the inherently dangerous work being carried on. An amended complaint alleged negligence on the part of Johnson Construction Company which is chargeable to Petit Jean by virtue of the inherently dangerous nature of the work. Petit Jean moved for summary judgment on the theory Petit Jean was not liable as a matter of law because Jackson was an employee of an independent contractor with whom Petit Jean had contracted to do the work. The summary judgment motion was granted.

Jackson alleges error in the granting of the summary judgment in that there are genuine issues of material facts regarding Petit Jean’s liability, the negligence and incompetence of Johnson Construction Company, and Petit Jean’s liability based upon the negligent conduct of Jackson’s employer being charged to Petit Jean as required by AMI 708.

We must decide whether the summary judgment was proper. Petit Jean had the burden of establishing the material facts were not in dispute.

A summary judgment is a judgment in bar that results from an application of substantive law to facts that are established beyond reasonable controversy. The purpose of the hearing on the motion for such a judgment is not to resolve factual issues. It is to determine whether there is any genuine issue of material fact in dispute, and, if not, to render judgment in accordance with the law as applied to the established facts, otherwise to deny the motion for summary judgment and allow the action to proceed to a trial of the disputed facts. The party moving for summary judgment has the burden of establishing that the material facts are not in dispute; and the function of his motion is analogous to the motion for directed verdict. Moore’s Federal Practice (2d Ed) § 56.11, Page 56-197.

Professor Moore further states:

. . . But the real function of summary judgment procedures is to go beyond the pleadings and present matters by affidavits, depositions, admissions, answers to interrogatories or other extraneous material for the purpose of showing that despite issues of fact raised by the pleadings, there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. § 56.09, Page 56-167.

We must determine from examination of the record whether there is any material issue of fact. In doing so every inference must be resolved in favor of the non-moving party, appellant Jackson.

I

The threshold question is whether Johnson Construction Co. was an independent contractor or a subcontractor acting at the direction of Petit Jean.

An independent contractor may be defined as one who carries on an independent employment in pursuance of a contract by which he has entire control of the work and the manner of its performance. The Arkansas Supreme Court has enunciated the test for determining whether an independent contractor relationship exists.

An independent contractor is one who, exercising an independent employment, contracts to do a certain piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work. Moaten v. Columbia Cotton Oil Co., 193 Ark. 97, 100, 97 S.W. 2d 629, 630 (1936).

Characteristic of an independent contractor relationship is that the employer of the contractor does not possess the power of controlling the person employed by the contractor as to details of the stipulated work. The right to approve or reject the result of the work does not destroy the independent contractor relationship. Akins v. Oklahoma Gas & Electric Co., 433 F. Supp. 1345 (E.D. Ark. 1977); Meyer v. Moore, 195 Ark. 1114, 115 S.W. 2d 1087 (1933); See generally, 41 Am. Jur. 2d 743, Independent Contractors, § 5 et seq; 56 C.J.S. Master and Servant, 24, § 1 et seq.

A careful review of the record, giving every reasonable inference to the appellant Jackson as we are required, supports the position of the appellee Petit Jean. Johnson Construction contracted with Petit Jean to replace some transmission lines. The contract states Johnson Construction is to have sole possession and control of the project. Article VI, Section 1(f) states:

f. The Project, from the commencement of work to completion, or such earlier date or dates when the Owner may take possession and control in whole or in part as hereinafter provided shall be under the charge and control of the contractor.

Mr. Earl Crabtree, the superintendent for powerline construction for Johnson Construction Co., testified by deposition. He stated:

Q. What was your understanding both as to the contract and then practiced as to whose responsibility it was for the supervision of the day-to-day work on the job?
A. Day-to-day work responsibility was Earl Smith. He was there every day, he or some other foreman.
Q. But it would be Johnson Construction through its employees.
A. Yes, Sir. They were responsible for it . . .
Q. But it was your understanding as the head person on this job for Johnson Construction Company that all of these things that occurred on the project, you had control over and would be responsible and liable for Johnson Construction Co.?
A. Yes, Sir. That’s the way it is.
Q. Did Petit Jean Electric Co-op have any supervisory responsibility for the details of the work on this job?
A. No, sir.
Q. Did they ever attempt to exercise any supervisory responsibility?
A. No, sir.
Q. In other words, no one from Petit Jean Electric Company would come out and tell you when to do something or how to do it or when to start it?
A. No, sir.
Q. To your knowledge, did anyone from Petit Jean Electric Co-op attempt to give any instructions as to the details of their work to any of your employees or job foreman?
A. No, sir.
Q. I am saying when you were working on transformers putting a new transformer in, they [engineers for Petit Jean] knew how close the workman would be to the hotline or primary?
A. No. They didn’t know how we were going to work. They give us the specifications and we build it. If we wanted to lean it south, we leaned it south. If we wanted. to pull it completely out, we pulled it. completely out. They had nothing to do with anything, how we did anything like that.
Q. So they didn’t know how you were going to do that job?
A. No.
Q. They didn’t go into the details of how the work was going to be done?
A. No.

The contract further stated the construction company was to be solely responsible for all risks incurred in the project.

. . . And during such period of control by the Contractor all risks in connection with construction of the Project and the materials to be used therein shall be borne by the Contractor. The Contractor shall make good and fully repair all injuries and damages to the Project or any portion thereof under control of the Contractor by reason of any act of God or other casualty or cause whether or not the same shall have occurred by reason of the Contractor’s negligence. The Contractor shall hold the Owner harmless from any and all claims for injuries to persons or for damage to property happening by reason of any negligence on the part of the Contractor or any of the Contractor’s agents or employees during the control by the Contractor of the Project or any part thereof.

The owner (Petit Jean) did retain the right to inspect or approve the work and to increase or fire employees of Johnson Construction if the project did not progress satisfactorily. The appellant Jackson contends this contractual provision brings this case under the control of Dunn v. Brown & Root, Inc., 455 F. 2d 717 (8th Cir. 1972).

The facts in Dunn, however, are readily distinguishable. There, Brown & Root, the prime contractor had contracted with the owner to build a paper mill. The plaintiffs employer (subcontractor) contracted with Brown & Root to line the inside of some steel tanks being built as part of this project. The plaintiff was injured when a safety chain gave way and a platform collapsed. At the time of the collapse, Brown & Root was installing inserts in the scaffold hangar nozzles for the platform. The contract between Brown & Root and the plaintiffs employer (subcontractor) had specifically called for Brown & Root to install the inserts prior to the beginning of performance by plaintiffs employer. This type of contractual provision calling for an affirmative act by the employer is vastly different from a provision retaining the right to approve the results of a project.

The retention by the employer of the right to supervise as to construction as distinguished from the rights to supervise as to the means by which the results should be obtained, does not affect the relationship between the parties. It is only when the employer goes beyond the limit of his contract and commits some affirmative act of negligence, as by some part in the performance of the work other than such general supervision as is necessary to insure its performance, that he is liable. Meyer v. Moore, supra.

We hold Johnson Construction Co. was an independent contractor. The record reveals there is no material issue of fact as to the status of Johnson Construction Co.

II

The general rule is that an employer is not liable for injuries sustained by the employees of an independent contractor. Gordon v. Matson, 246 Ark. 533, 439 S.W. 2d 627 (1969); Terry v. A. P. Green Firebrick Co., 164 F. Supp. 184 (E.D. Ark. 1958); Corban v. Skelly Oil Co., 256 F. 2d 775 (5th Cir. 1958). There are, however, several exceptions to this general rule. The reason for this rule is that the employer does not possess the power of control over the person employed as to the details of the stipulated work, and hence should not be answerable for an injury resulting from the manner in which the details are carried out by the independent contractor. We must now determine if any of these exceptions are applicable.

Arkansas recognizes an exception to the general rule which states the contractor (owner) will be liable to third parties who have sustained injury or damages where the work is a nuisance or where damage is the natural and probable result of the work itself. White River Railway Co. v. Batesville & Winerva Telephone Co., 81 Ark. 195, 98 S.W. 721 (1906); Stout Lumber Co. v. Reynolds, 175 Ark. 988, 1 S.W. 2d 77 (1928). This exception is not applicable. The plaintiff is not an outside third party, and the work does not constitute a nuisance.

Another exception states an employer of a prime contractor will be held liable where it is guilty of some affirmative act of negligence which causes or contributes to the injury. Akins, supra; Kennedy v. U.S. Construction Co., 545 F. 2d 81 (8 th Cir. 1976). Appellant argues the appellee was negligent in its failure to de-energize the lines, insulate the wires, provide safety equipment or require Johnson Construction Company to properly supervise the work. The record reveals Johnson Construction contracted to change the lines without deenergizing the lines. Mr. Crabtree in his deposition explained this provision in the following manner.

Under the contract, Johnson Construction Company was required to work with energized power lines. We weren’t supposed to de-energize the line because you bid on energize or de-energize lines. We bid on energized lines, and they expect to keep it on and keep people’s lights on . . .

The deposition of Earl Smith, the foreman on the job, contains the following statement:

It was my responsibility for the supervision of the actual linemen and the other people out there working on the crew.
Petit Jean Electric Co-op never purported to exercise any supervision or control over me or my employees and how they did their job and when they did it, when they started, when they quit — that sort of thing.

There is no evidence Petit Jean was guilty of negligence. The record reveals no duty of Petit Jean to undertake any of the tasks complained of by the appellant Jackson. Hence, there can be no negligence where there is no duty owed. There is no material issue of fact as to the role of Petit Jean. We find this exception to be inapplicable.

The final exception to the general rule deals with negligence in the performance of ultrahazardous activities. Simply stated, this exception places liability on the employer for injuries caused by the failure of an independent contractor to exercise due care with respect to the performance of inherently dangerous work.

AMI 708 provides:
When I use the expression “inherently dangerous”, I mean work to be performed that can be safety carried on only by the exercise of special skill and care and which involves a grave risk of serious harm when it is unskillfully or carelessly done.
Ordinarily an employer is not chargeable with the negligence of an independent contractor; however, when the work to be performed is inherently dangerous, any negligent conduct of an independent contractor is chargeable to his employer.

There is no issue as to the nature of the work being performed by Johnson Construction Co. The work was admittedly ultrahazardous.

This exception, however, is not applicable. The duty, and hence liability, is owed only to third parties. The exception is designed to protect third parties. Jackson, appellant, as an employee of the independent contractor, is not a third party. The Fifth Circuit Court of Appeals applied Arkansas Law in Corban v. Shelly Oil Co., supra, and stated:

It has been stated that ‘an employer is liable for injuries caused by the failure of an independent contractor to exercise due care with respect to the performance of work which is inherently dangerous or intrinsically dangerous. The theory upon which liability is based is that a person who engages a contractor to do work of an inherently dangerous character remains subject to an absolute non-delegable duty to see that it is performed with that degree of care which is appropriate to the circumstances, or, in other words, that all reasonable precautions shall be taken during its performance to the end that third persons may be effectually protected against injury. Thus it appears that the rule is designed to protect third persons. . . . We have seen no case where the inherently dangerous doctrine has been extended so as to permit an employee of an independent contractor to recover from the principal for a breach of the nondelegable duty. (p. 780).

This rule was applied in Terry v. A. P. Green Firebrick Co., supra. The Supreme Court of Alaska, in excluding the employee from the class of third persons, gave the following reason:

The distinction between employees at the work site and the general public is particularly appropriate in the context of ultra hazardous activities. Members of the public, whose proximity to danger would be merely coincidental, would probably be unaware of any danger until it struck; hence, there is no way they could adequately protect or insure themselves against harm. Employees at the work site, on the other hand, would possess some knowledge with respect to the nature of the project and thus could choose whether they wished to be exposed to a dangerous activity. Morris v. City of Soldotna, 553 P. 2d 474, 481 (Ala. 1976).

See also, New Mexico Electric Service Co. v. Montanez, 89 N.M. 278, 551 P. 2d 634 (1976); King v. Shelby Rural Electric Cooperative Corp., 502 S.W. 2d 659 (Ky. 1974); Florida Power & Light Co. v. Price, 170 So. 2d 293 (Fla. 1964).

There is no material issue of fact with regard to this issue. Jackson was an employee of Johnson Construction Company, and hence, is not a member of the class sought to be protected by this exception.

Appellant lastly argues the appellee was negligent in hiring a contractor (Johnson Construction Company) which was incompetent. Arkansas law places a duty on an employer to select a skilled and competent contractor. Ozan Lumber Co. v. McNeely, 214 Ark. 657, 217 S.W. 2d 341 (1941). Liability for the negligent selection of a contractor extends, however, only to third parties. Ozan, supra. Employees of the contractor are not included within this class. See Matanuska Electric Assoc. Inc. v. Johnson, 386 P. 2d 698 (Ala. 1963); Lipka v. U.S., 369 F. 2d 288 (2d Cir. 1966). Again, there is no question Jackson was an employee. He is not included in the class of persons protected by this rule.

We have closely examined the record and as is proper when reviewing a Summary Judgment, have allowed every inference to be given the appellant as the non-moving party. Even so, we can find no material issue of fact. The trial court correctly granted the appellee’s motion for Summary Judgment.

Lest this seems harsh, we might point out the appellant is not without a remedy. He has received $60,991.05 in Workers’ Compensation benefits.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Randy BOWEN v. STATE of Arkansas
    CA CR 79-108
    598 S.W. 2d 447
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Released for publication May 14, 1980

      Michael Dabney, for appellant.

      Steve Clark, Atty. Gen., by: Joseph H. Purvis, Deputy Atty. Gen., for appellee.
   Marian F. Penix, Judge.

Appellant, Randy Bowen, age 23, was convicted of the felony of Interfering with a Law Enforcement Officer and sentenced by the jury to three (3) years imprisonment. He appeals.

On the night of December 3, 1978, Bowen and his brother were drinking in Omar’s, a Fayetteville night club. Bowen’s testimony was he had been drinking most of the day and since coming to Omar’s had been ordering straight shots of Pure Grain Alcohol (PGA) for several hours. The bartender at one point refused to serve Bowen another drink. Bowen began to cause trouble with the proprietor, Mr. Saifi, who called the police. Bowen refused to leave the establishment and physically attacked an officer Logue, knocked him to the floor and pummelled him. Bowen testified he remembered being on the floor but did not remember anything after that because he “blacks out whenever he drinks”. Bowen described himself as an alcoholic and testified he had been drinking since he was 12 years old, and frequently blacked out.

Bowen was charged with the Interference with a Law Enforcement Officer. He has affirmatively plead the defense of intoxication. In a conference on jury instructions, the defense counsel attempted to amend AMCI 4005 to prevent the introduction of the third section which states:

That the intoxication was not the result of knowingly taking a substance which he knew or ought to have known would cause him to be intoxicated.

The defense counsel argued in a “specific intent” crime, voluntary intoxication is a proper defense. Counsel for the prosecution objected to any modification, giving as his reason the law of Arkansas requires the instructions to be followed without modification.

Bowen alleges error in the court’s instruction to the jury that in order to establish the affirmative defense of intoxication, the defendant must prove the intoxication was not self-induced. Bowen also alleges error in the court’s characterization of the crime of Interference with a Law Enforcement Officer as not being a crime of specific intent.

The crime as defined in Ark. Stat. Ann. § 41-2804, is committed by a person,

. . . if he knowingly employs or threatens to employ force against a law enforcement officer engaged in performing his official duties. . .

The requisite mental state of “knowingly” is defined in Ark. Stat. Ann. § 41-203(2) as:

“Knowlingly.” A person acts knowingly with respect to his conduct or the attendant circumstances when he is aware that his conduct is of that nature or that such attendant circumstances exist. A person acts knowingly with respect to a result of his conduct when he is aware that it is practically certain that his conduct will cause such a result.

This definition of “knowingly” indicates the person must be mentally aware of the nature of his conduct, but it doesn’t indicate whether the same “awareness” is reasonably equivalent or similar to “intent”. Does the word “knowingly” require specific intent to commit a crime?

AMCI 4005 is a model instruction designed to explain Ark. Stat. Ann. § 41-207. § 41-207 reads:

Intoxication. — (1) Intoxication that is not self-induced is an affirmative defense to a prosecution if at the time a person engages in the conduct charged to constitute the offense he lacks capacity to conform his conduct to the requirements of the law or to appreciate the criminality of his conduct.
(2) For the purpose of this section:
(a) “intoxication” means a disturbance of mental or physical capacities resulting from the introduction into of alcohol, drugs, or other substances into the body;
(b) “self-induced intoxication” means intoxication caused by a substance which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know.

The original subsection (1) of § 41-207 allowed the defense of voluntary intoxication but it was repealed in 1977. In Varnadere v. State, 264 Ark. 596, 573 S.W. 2d 57 (1978) the court stated:

By amending § 41-207 to remove self-induced intoxication as a statutory defense, the legislature in effect, reinstated any prior Arkansas common law on the subject. ... in crimes such as burglary, where a specific statutory intent is required, a different standard must be applied.

In Olles & Anderson v. State, 260 Ark. 571, 542 S.W. 2d 755 (1976), the court stated:

. . . Still, when an offense can be committed only by doing a particular thing with a specific intent, it may be shown that an accused was so drunk at the time of the crime that he could not have entertained or formed the necessary intent. . .

The Arkansas Common law developed that voluntary intoxication is a defense to crimes requiring a “specific intent”.

The crux of Appellant’s contention is the question, Is Interference with a Law Enforcement Officer a crime requiring specific intent so as to make his self-induced intoxication a defense and therefore entitling him to an instruction stating such? Does “knowingly” as used in § 41-2804 impart a “specific intent” to the crime or merely the “general intent” necessary in the commission of any crime? Being aware of one’s actions does not encompass the mental state required for a crime of specific intent. One may be cognizant of the circumstances and one’s actions yet not intend the result of them. The Idaho Supreme Court in State v. Booten, 85 Ida 51, 375 P. 2d 536, 538-539 (1962) stated the following:

The proof is uncontroverted that the check itself was forged and that the defendant presented the check to Fields. Passing or uttering a check consists of presenting it for payment. (Cite) The allegation that the defendant “knowingly, willfully, unlawfully, intentionally and feloniously, etc., did pass and utter” the check in question raises an issue of fact for resolution by the jury; The allegation of “knowingly” and “intentionally” has reference to the general criminal knowledge and intent, and not to the specific intent and knowledge to such general criminal knowledge, wilfulness, unlawfulness and intent, the jury can infer them from the facts and circumstances surrounding the commission of the crime itself. (Cites) The word “intent” as so used has been construed to mean not an intent to commit a crime, but is merely the intent knowingly to perform the interdicted act.

We hold a crime with “knowingly” as the. requisite mental state does not require a specific intent. Therefore, self-induced intoxication is not a defense to the crime of Interference with a Law Enforcement Officer. The court committed no error in refusing to instruct the jury on the affirmative defense of self-induced intoxication.

Affirmed.


author: George Howard, Jr. Judge.

text:
    Lloyd POWELL v. SEARS, ROEBUCK AND CO.
    CA 79-286
    598 S.W. 2d 449
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Released for publication May 14, 1980

      James C. Cole, for appellant.

      Friday, Eldredge & Clark, by: John Dewey Watson, for appellee.
   George Howard, Jr. Judge.

This is an appeal from a jury’s verdict in behalf of appellee in appellant’s personal injury action.

The only issue tendered for resolution is whether the trial court erred in permitting defense counsel, during his closing argument, to use and display to the jury blown-up portions of the trial court’s instructions without being required to enlarge all of the instructions.

Appellant argues that use of the blown-up portions of the instructions was prejudicial to the plaintiff since the remaining portions of the instructions were not emphasized to the same degree. Hence, plaintiff was deprived of a fair trial.

We fail to perceive how appellant has been prejudiced. Nor has appellant demonstrated any prejudicial effects. Appellant, during his two appearances before the jury during closing argument, was afforded the same opportunity to emphasize any portion of the instructions.

The essence of closing argument is to afford counsel the opportunity to focus attention on those factual matters, developed during trial, as well as the instructions that tend to support counsel’s theory of the case. This is, indeed, the most propitious moment for counsel to stress those things that he wants the jury to see and hear.

We are not persuaded that the use of blown-up portions of jury instructions would mislead a jury as to its duty to consider all of the court’s instructions while deliberating on its verdict.

It is well settled that a trial court has considerable discretion in permitting the use of visual aids during the course of a trial. We are unable to say that the trial court, in the instant case, abused its discretion in permitting appellee’s counsel to use and display blown-up portions of the jury instructions. If there is any error, it is harmless indeed.

Needless to say, counsel for appellant could have made inquiry, during pre-trial, of opposing counsel whether the use of demonstrative evidence or visual aids was contemplated during the course of the trial. Of course, this would tend , to minimize, if not completely avoid, any surprise during trial.

Affirmed.


author: George Howard, Jr., Judge. David Newbern, Judge,

text:
    Majel Penney SHIPMAN v. D. R. (Runyan) PENNEY and wife, Tommye PENNEY
    CA 79-316
    598 S.W. 2d 450
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Released for publication May 14, 1980

      Boyd Tackett, Jr., for appellant.

      Honey and Rodgers by: Danny P. Rodgers, for appellees.
   George Howard, Jr., Judge.

This is an appeal from a chancery court decree dismissing appellant’s complaint seeking a cancellation of two warranty deeds she executed to appellees conveying real property, purportedly for safekeeping, which appellees sold to third persons; and a cross-appeal by appellees from a decree awarding the appellant a judgment for $19,000.00 for a coin collection appellant delivered to appellees for safekeeping.

The relevant facts are: Appellant, in 1973, was a party to a divorce action in Dallas, Texas. Upon the advice of her brother, appellee D.R. Penney, appellant conveyed certain Arkansas real estate, one tract consisting of 105 acres and another consisting of 17 acres, to appellees for safekeeping. A valuable coin collection and several guns were also purportedly delivered to D.R. Penney for safekeeping.

Appellant claims that the appellees executed, on the same day that she executed her deeds to appellees, a deed of conveyance to the real property back to the appellant, but these deeds were never recorded and that during a visit to appellant’s home, appellees took the deeds without her knowledge and consent; and that she has not been able to locate them.

On the other hand, D.R. Penney testified that the conveyances were in consideration of an indebtedness owed by appellant in the sum of $33,500.00. The brother admitted that he received the coin collection set for safekeeping; and that he sold the coins for $1,100.00; and that $1,000.00 of this money was deposited to an account in appellant’s name at First National Bank of Ashdown. Appellee, however, denied that he received any guns belonging to the appellant for safekeeping.

It is well settled that while an appeal from a chancery court decree is reviewed de novo, the appellate court will affirm the action of the trial court where the decree is supported by a preponderance of the evidence.

After carefully reviewing the record, we are persuaded that the decree of the chancery court is supported by a preponderance of the evidence. A trial judge possesses one advantage that the appellate judges do not enjoy, namely, the opportunity, during the course of a trial, to observe the demeanor, conduct, disposition and the reaction of witnesses under both direct and cross-examination while we simply have the written record before us. While this, alone, is not totally dispositive, it does, however, have some relevance in seeking to arrive at the truth in a controversy, especially when the issues are sharply contested and the evidence is practically equipoised.

D. R. Penney testified that in 1969, he loaned the appellant $33,500.00 and that appellant deeded the real property in question to him in satisfaction of the debt; and that the lands in question are valued at approximately the amount of the indebtedness. While the appellant testified on direct examination that she never owed her brother anything “in her life”, there was no testimony offered in rebuttal to refute the brother’s testimony that he gave on direct examination.

Attorney Garnet E. Norwood could not testify positively that he either prepared the two deeds purportedly executed by appellant conveying the property to appellees or whether he prepared four deeds, two involving the conveyance to appellees and two involving a purported reconveyance of the property to appellant. Mr. Norwood stated that his records reflected a payment of $40.00 for legal work having been performed for D.R. Penney, or someone representing himself as D.R. Penney; but, in any event, he had no personal recollection that the $40.00 was for four deeds.

D.R. Penney admits that he received appellant’s coin collection set for safekeeping and sold the set for $1,100.00; and that $1,000.00 was placed in an account in appellant’s name at First National Bank of Ashdown. This is tantamount to an admission that the coins were disposed of while they were in his possession for safekeeping for appellant.

The proof is deficient in showing that appellees also took possession of any guns belonging to appellant.

Affirmed.

Wright, C.J., and Newbern, J., concur.

David Newbern, Judge,

concurring. The complaint in this case sought cancellation of a deed the appellant made to the appellees conveying land of which the appellees are still possessed. It also asked for “the fair market value” of the other tract which was no longer in the appellees’ possession. It also asked that the appellees be “directed by the court to turn over all personal property belonging to the plaintiff [appellant].” Thus, the complaint seemed to seek several different kinds of remedies which could have been available based on a number of theories of recovery.

1. The Deeds

In his memorandum opinion, the chancellor did not reveal the theory upon which he denied the appellant’s requested remedies with respect to the deeds. He said simply that the “plaintiff [appellant] has failed to meet her burden of proof in regards to the deeds.” We do not know whether he meant her burden to show the deeds she executed were procured by fraud or in trust, or whether he meant the deeds back to her which she said had disappeared — perhaps a “lost deed” theory.

I can go along with the result in affirming this decision because I do not believe the chancellor’s decision was clearly erroneous or against the preponderance of the evidence, no matter which theory is under discussion, but I do believe he should have discussed them, and so should we.

To construct a trust, our supreme court has required a strong showing of a confidential relationship between the parties or intentional fraud. Thom v. Geyer, 254 Ark. 716, 497 S.W. 2d 689 (1973); cf. Henslee v. Kennedy, 262 Ark. 198, 555 S.W. 2d 937 (1977). A party seeking to show a lost deed must do so by the “clearest, most conclusive and satisfactory proof.” Hill v. Jones, 219 Ark. 904, 245 S.W. 2d 573 (1952); Erwin v. Kerrin, 169 Ark. 183, 274 S.W. 2 (1925).

2. The Coins

We cannot identify the theory the chancellor used to justify the $19,000 judgment stemming from the coin collection transfer. His memorandum specifically rejected express or constructive trust but went on to speak of the standard of loyalty owed by a brother to a sister with the following language:

. . . but this court finds that the Defendant, Runyan Penney took possession of the involved coin collection for safekeeping and a brother and sister relationship existed and the defendant owed a reasonable standard of good faith, prudent dealing and loyalty to his sister in holding the coin collection.

Later in his opinion, the chancellor mentioned a duty to “account” for the coin collection. Whether he had in mind an “accounting” in the sense of the traditional equitable remedy or perhaps the traditional law court count in assumpsit of money had and received, Wilson v. Biles, 171 Ark. 912, 287 S.W. 373 (1926); General Contract Purchase Corp. v. Clem, 220 Ark. 863, 251 S.W. 2d 112 (1952), the evidence was not really in question that the appellee D. R. Penney had received the coins and disposed of them. However, the only evidence of what he actually received for them was his own statement that he received $1,100. The $19,000 judgment was based on evidence the coins were worth $20,000, and Penney had returned only $1,000. This award clearly does not fit the “accounting” mold, as the appellee is not being compelled to account for what he has received. Although it also does not fit the general “unjust enrichment” theory of assumpsit, I agree with Professor Dobbs that a fair result can be reached by refusing to limit assumpsit to that theory and permitting recovery of the value of the converted item. See Dobbs, Remedies, pp. 416-417 (1973), citin Felder v. Reeth, 34 F. 2d 744 (CA 9 1929). Thus, by applying the equity clean-up doctrine, I can agree the chancellor had the authority to award this assumpsit remedy.

This discussion may seem to have been superfluous, but I do not believe courts, either trial or appellate, should decide cases without making clear the legal bases for the decision, in addition to the factual ones.

Chief Judge Wright joins in this concurring opinion.


author: David Newbern, Judge.

text:
    Faye Finch STAPLETON and Jackie Whayne STAPLETON v. Donald HOLIMAN
    CA 79-303
    598 S.W. 2d 453
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Released for publication May 14, 1980

      Thomas & Nussbaum, P.A., by: Alan Nussbaum, for appellants.

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellee.
   David Newbern, Judge.

This case arose from an automobile collision which occurred on an ice and snow-covered street. There was evidence that the two vehicles involved were travelling toward each other in a single set of ruts which straddled the center-line of the street. Other evidence showed the appellant Faye Stapleton was driving on the right side of the street and the appellee was driving in the center of the street.

The car driven by Faye Stapleton at the time of the accident was owned by Jackie Stapleton, her son. He sued for property damage to his vehicle. She sued for personal injury. The claims were heard jointly. The jury returned a general verdict in favor of the defendant.

Jackie Stapleton contends a verdict should have been directed in his favor on his property damage claim. We agree, in view of the fact that the testimony of all of the witnesses indicated the appellee was driving, at least partially, in the wrong lane, and one apparently disinterested witness, whose testimony was undisputed, said the appellee was driving too fast for the prevailing road conditions. The appellee presented no evidence.

There was no evidence that Jackie and Faye Stapleton were engaged in a joint venture, and the negligence of a bailee is not attributable to a bailor. Bill C. Harris Construction Co., Inc. v. Powers, 262 Ark. 96, 554 S.W. 2d 332 (1977). Thus, we can find no reason for the denial of Jackie Stapleton’s motion for a directed verdict in view of the undisputed evidence that negligence on the part of the appellee was the proximate cause of the damage to Jackie Stapleton’s vehicle. Pickens v. Westbrook, 191 Ark. 156, 835 S.W. 830 (1935). See also, Boyle v. Simon, 558 F. 2d 896 (CA 8 1977), citing Arkansas cases for the proposition that unless the case is one in which there is plain and undisputed evidence, the question must go to the jury.

Jackie Stapleton also contends the deputy sheriff who investigated the accident should not have been allowed to testify as to his opinion of the extent of damage to the vehicle, citing two eminent domain cases. Arkansas State Highway Comm’n v. Pullen, 243 Ark. 759, 421 S.W. 2d 890 (1967); Arkansas State Highway Comm’n v. Elliott, 234 Ark. 619, 353 S.W. 2d 526 (1962). In the Pullen case, an expert’s opinion as to land value was excluded at the trial. The case was affirmed because the court was unable to say the trial judge abused his discretion in excluding it. In Elliott, the court said the trial court should have excluded evidence of a purchase price offered for the land in question because there was no evidence of his familiarity with land values in the area and thus he was not a “qualified lay witness.”

The appellee simply contends the point is moot because of the jury’s finding in his favor. In view of our holding that a verdict should have been directed for Jackie Stapleton on the question of liability, the matter of evidence of damages will arise upon remand. Therefore, we will address the matter to a limited extent.

The officer’s testimony was about the evaluation of injury to the vehicles he made in his report of the accident. No attempt was made to qualify him as an expert. While Ark. Stat. Ann. § 28-1001, Rule 701 (Repl. 1979) permits a lay witness to given an opinion “rationally based” on his perception, his perception cannot be without foundation. The officer said he placed the damage at $800 to each vehicle based upon his impression, without knowing “what underneath damage was done.” That testimony was obviously incompetent.

We have found surprisingly little authority on the question whether a police officer may offer an opinion of the extent of damages to vehicles involved in a collision. However, we find one case in which it was held error to have admitted a highway patrolman’s testimony with respect to damages in terms of money, although the court made it clear he could say what he found at the accident scene. Bryan Bros. Packing Co. v. Grubbs, 251 Miss. 52, 168 So. 2d 289 (1964). The court said:

He attempted to qualify as an expert by testifying that he was experienced in investigating accidents and that it was a part of his duty to fill out a form giving the amount of damages to each vehicle, but he did not qualify as a mechanic with knowledge of the cost of labor and materials in repairing automobiles. Over objection, he testified as to the amount of damages to each of the three vehicles in terms of money. This was error. [168 So. 2d at 293]

See also, Sanders v. McNatt, 430 S.W. 2d 797 (Tenn. 1968). Cf., Howard v. Adams, 246 S.W. 2d 1002 (1952).

We need not decide here whether a police officer may or may not ever be qualified as an expert in this field on the basis of his investigative experience. We must say, however, that for an officer to give a “qualified lay opinion” the showing of a “rational basis” for his opinion would, in our judgment, have to consist of evidence which would be little different from that which would show him to be an expert.

The final point has to do with the verdict in favor of the defendant against Faye Stapleton. She contends prejudicial remarks were made to the jury by the appellee’s counsel in connection with one of her witnesses because he said the witness “was holding the defendant to a higher standard of care.” The witness testified he had experience driving on snow and ice because he had once lived in Alaska. During colloquy surrounding an objection, the appellee’s counsel remarked that the appellants’ witness was holding “other people up to a higher standard of care than he does Arkansans.” The remark seems not to have been as the appellants’ brief has characterized it. At any rate, no objection to the remark was made, and it clearly could not have served as the basis of a directed verdict for Faye Stapleton as she contends. We cannot find any such motion was even made on her behalf.

The judment is affirmed to the extent it was in favor of the appellee against Faye Stapleton. The judgment is reversed to the extent it was in favor of the appellee and against Jackie Stapleton. We may not return the case for a hearing on the question of damages only. Devazier v. Whit Davis Lumber Co. an F & S Construction Co., 257 Ark. 371, 516 S.W. 2d 610 (1974); Lake Village Impl. Co. v. Cox, 252 Ark. 224, 478 S.W. 2d 36 (1972). Thus, the case is remanded for a new trial with respect to the claim of Jackie Stapleton.

Affirmed in part; reversed in part, and remanded.


text:
    ODEN OPTICAL COMPANY, INC. v. OPTIQUE DU MOND, LTD.
    CA 79-304
    598 S.W. 2d 456
    Court of Appeals of Arkansas
    Opinon delivered April 23, 1980
    Released for publication May 14, 1980

      Patten, Brown, Leslie & Davidson, by: Charles A. Brown, for appellant.

      House, Holmes & Jewell, for appellee.
   David Newbern, Judge.

The circuit judge quashed service of process and dismissed this case without prejudice after the appellee argued the service was by “trick, artifice or fraud.” The appellant contends the service should not have been quashed and that the case should not have been dismissed. We are unable to find in this case any “trick, artifice or fraud” of the kind sufficient to invalidate the service and thus we reverse the decision to quash and remand the case.

Mr. Mourot, president of the appellant, and Mr. Blount and Mr. Fox, officers of the appellee, had engaged in telephone conversions and correspondence with respect to a dispute which had arisen in their business relationship through which the appellee supplied merchandise to the appellant. The discussions culminated in a meeting held in Little Rock for the purpose of reaching a final settlement. The record leaves no doubt that the meeting was held in Little Rock rather than New York, the principal location of the appellee, because of the suggestion of Mr. Blount who was to be. the appellee’s representative at the meeting. Mr. Blount’s testimony was that his company “initiated that invitation to come negotiate,” and that at one point, at least, Mr. Mourot had discouraged the meeting, saying he “didn’t think it would serve any purpose.”

When the meeting occurred, Mr. Blount was asked to wait approximately fifteen, minutes outside Mr. Mourot’s office. He then went into the office and they discussed their business relationship twenty or thirty minutes whereupon a deputy sheriff appeared and served Mr. Blount with a complaint and summons. Mr. Blount then announced there was nothing left to discuss and, after some social amenities, left the office.

Although the trial court’s order did not state the reason for quashing service, we assume it was because, as the appellee had argued, of “trickery, artifice or fraud.” The principle that a court should not exercise its jurisdiction when the defendant’s presence in the geographical jurisdiction was procured by trickery is established in Arkansas. Robinson v. Bossinger, 195 Ark. 445, 112 S.W. 2d 637 (1938). However, as stated in Freyburgh v. Geliebter, 184 N.Y.S. 2d 902 (1959), “[i]n no decided case has a defendant who suggested of his own volition that he come into the jurisdiction been successful on this type of motion. [184 N.Y.S. 2d at 904]” All of the cases cited by the appellee are ones in which the party seeking to serve the process invited or inveigled the presence of the prospective defendant, and like the New York Supreme Court, we have found no case which strikes down the process when the initiation of the recipient’s presence was clearly his own idea.

The closest case we have been able to find to the one before us is Buchanan v. Wilson, 254 F. 2d 849 (CA6 1958). There, the plaintiffs and the defendant had been involved in an automobile accident. They agreed the defendant would repair the plaintiffs’ car at his shop in Tennessee and then return it to Cincinnati where they resided. When the defendant arrived in Cincinnati with the repaired vehicle, he was asked to bring it to the plaintiffs’ home. They asked the defendant to wait there while they took the car out for a test drive. They were gone for half an hour, during which time the defendant was served while waiting at the plaintiffs home. The opinion in the Buchanan case leaves some doubt whose idea it was for the defendant to deliver the car to Cincinnati, but that apparently did not matter to the court of appeals which said:

[H]e was induced by artifice, and for the sole purpose of subjecting him to service of summons, to come to a certain place within the jurisdiction, and was there induced, by artifice, to remain until a deputy sheriff could arrive and make service of summons on him. It is not a question whether the service made under such circumstances, amounts to the acquisition of jurisdiction over the appellee; it is rather a question whether the Court will enforce its jurisdiction, obtained by the abuse of its own process. [254 F. 2d at 850]

In this case, the appellant contends the negotiation meeting was arranged in good faith on Mr. Mourot’s part, and it was only when, the day before the meeting was to take place, Mourot learned from a third party that Blount was coming to Little Rock without sufficient authority to settle or intent to negotiate in good faith that he decided to file suit and have process served. While we agree with the appellee’s argument that settlement efforts, and thus avoidance of unnecessary litigation, are important, we cannot say that where a prospective defendant seeks to negotiate in the home territory of a prospective plaintiff he becomes immune from process with respect to the matter to be negotiated. We find no case which has gone that far. Indeed, the U.S. Supreme Court once upheld a refusal to invalidate service where the defendant had been invited to the plaintiff’s jurisdiction to settle because the lower court could have inferred the settlement attempt was in good faith and not a mere fraudulent scheme. Commercial Mutual Accident Co. v. Davis, 213 U.S. 245, 29 S. Ct. 445 (1909).

In Buchanan v. Wilson, supra, the court referred to the artifice used as an “abuse of process.” We explored whether this might indicate some ground for quashing service which goes beyond the traditional trickery, artifice or fraud, perhaps on the basis that the prospective defendant who enters the jurisdiction by his own volition and suggestion, but who goes to a certain place within the jurisdiction at the prospective plaintiff’s invitation, is being dealt with in a too unfair manner. We found no such special basis in any other cases.

The term “abuse of process” was used by Judge Trieber in a case where he examined the problem of trickery, artifice or fraud. Judge Trieber’s language is instructive:

Is the institution of this action, which is conceded to be transitory, such as abuse of the process of the court as requires it to be set aside?
The action being transitory, a party has, ordinarily, the right to institute and maintain an action against a defendant in any court of competent jurisdiction where personal service can be had on him, whereby the court obtains jurisdiction of his person. The fact that it may be inconvenient for the defendant to make his defense in that tribunal, and that is practically all the allegations in the motion amount to, is no cause for abatement of the action, or quashing the service of the summons. Fitzhugh v. Reid, 252 F. 2d 234, pp. 238, 239 (8th Cir.).

In that case, a federal labor mediator had been served with process issued by an Arkansas court while he was sojourning in Hot Springs. Judge Trieber’s theme was taken from Faster v. Currie, 198 U.S. 144, 25 S. Ct. 614 (1905), in which Mr. Justice Holmes, speaking for a unanimous U.S. Supreme Court, found that even if a notice of taking the plaintiffs deposition had been calculated to draw the defendant into the plaintiffs home jurisdiction, that did not amount to “fraud.”

To the extent the Buchanan case held an “artifice” designed to obtain service upon a person who has come into the jurisdiction by his own volition and at his own suggestion invalidates the service, we disagree. We find no definition of “abuse of process” which would include such an act. See, Prosser, Torts, § 121, p. 856 (4th ed. 1971).

In this case it is apparent the defendant, a corporation doing business in Arkansas, could have been served pursuant to Ark. Stat. Ann. § 27-2503 (Repl. 1979), in this action for breach of a contract to supply merchandise here. See, Ark. Stat. Ann. § 27-2502(C.)(1.)(b) (Repl. 1979). That fact plays no role in our decision, however, it is reason enough to point out that jurisdiction based upon transient presence, which the appellant was attempting to assert here, is a concept which may need reevaluation. Comment, Minimum Contracts Analysis of In Personam Jurisdiction Over Individuals Based on Presence, 33 Ark. L. Rev. 159 (1979); Ehrenzweig, The Transient Rule of Personal Jurisdiction: The “Power” Myth and Forum Conveniens, 65 Yale L.J., 289 (1956). While we find objectionable deviousness used to entice a prospective defendant into the jurisdiction for service, neither we nor other courts seem to find fault with deviousness used to serve a citizen of the jurisdiction or one whose presence there has not been enticed (the Buchanan case excepted), and we even dispense with the requirement of handing the process to the prospective defendant under many circumstances. The progressive emphasis on minimal connections with the jurisdiction and adequate actual or attempted notice as bases of a court’s right to assert its authority may someday obviate the notion of mere presence as a basis, and we will no longer be concerned with the problem presented when one is enticed or tricked into being present in the court’s jurisdiction.

Until that happens, however, we will distinguish between cases in which one is enticed to come within the geographical jurisdiction of the court and cases where one is enticed to be at a certain place or to remain there, having first entered the jurisdiction at his own instance. In the latter situation we hold the service is valid.

Reversed and remanded.


author: David Newbern, Judge. Ernie E. Wright, Chief Judge,

text:
    Novella B. TISDALE and Lucien TISDALE v. Richard Charles HICKS and RIVERSIDE INSURANCE CO.
    CA 79-319
    599 S.W. 2d 145
    Court of Appeals of Arkansas
    Opinion delivered April 23, 1980
    Released for publication May 28, 1980

      Baim, Baim, Gunti, Mouser & Bryant, by: David K. Gunti, for appellants.

      Holmes, Holmes & Trafford, by: Winfred H. Tafford, for appellees.
   David Newbern, Judge.

A summary judgment was rendered in favor of the appellee Riverside Insurance Co. The court held there was no outstanding issue of material fact with respect to whether the appellants had rejected uninsured motorist coverage. As we find the record to disclose a dispute on the matter, we reverse.

The appellants were involved in an accident with appellee Hicks who was an uninsured motorist. They sued him and the appellee Riverside. The suit against Riverside was based upon Ark. Stat. Ann. § 66-4003 (Repl. 1966), which prohibits issuance of a policy of insurance on an automobile, located principally in Arkansas, unless the policy contains uninsured motorist coverage. A proviso in the statute says “coverage required under this section shall not be applicable where any insured named in the policy shall reject the coverage.”

At the time the summary judgment motion was made by Riverside, the record contained only the pleadings and discovery responses of the appellants. Riverside submitted to the appellants with its discovery requests a Riverside insurance application form signed “L. L. Tisdale.” The form clearly shows the word “Rejected” had been entered opposite the reference to uninsured motorist coverage with respect to each vehicle listed in the application.

In their responses to interrogatories and requests for admissions, the appellants denied having rejected the coverage, although Mrs. Tisdale admitted she “went by the office of J. L. Chaviers, a local insurance agent, and signed the application at the instruction of her husband.” They further denied having received the policy, and stated that the basis of their claim of uninsured motorist coverage was “Arkansas Law.” They also denied they had not paid a premium for uninsured motorist coverage. The responses to the request for admissions were verified only by Mrs. Tisdale, but no motion challenging the sufficiency of the answers was made, an no order deeming any matter to have been admitted by Mr. Tisdale was entered.

The apparent primary reason the summary judgment was granted was Mrs. Tisdale’s admission she signed the application. There was no evidence, by affidavit or otherwise, that the application at the time she signed it contained the word “Rejected” -in the crucial places. Nor was there any evidence of any conversation about the matter. The summary judgment denied the appellants an opportunity to prove there had been no knowing rejection of the uninsured motorist coverage.

Assuming Arkansas law would require the inclusion of uninsured motorist coverage in any policy as to which it had not been rejected, there was just not a sufficient record to form the basis of this summary judgment. Had the appellee, Riverside, introduced the insurance application by affidavit showing either that it contained the rejection when it was signed or that the coverage was offered and rejected, and had the appellants not denied it, the judgment would have been proper.

In Lamb v. Midwest Mutual Insurance Co., 296 F. Supp. 131 (W.D. Ark. 1969), Judge Henley granted a summary judgment against one who claimed uninsured motorist coverage where a form showing he had rejected the coverage was “before the court.” We cannot ascertain from the opinion whether there was anything in the record other than the form, such as an affidavit showing the form included the rejection at the time it was signed. In granting the judgment, Judge Henley pointed out:

No claim is made that plaintiff did not execute the rejection, or that he did not understand it, or that the agent of the defendant who sold the policy was guilty of any fraud, misrepresentation or overreaching in connection with the rejection. [296 F. Supp. at 132]

We need only note that in the case before us there are sworn statements asserting the “rejection” did not occur and nothing entered to the contrary by Riverside. The application document was apparently in the record solely because the appellee submitted it to the appellants with a discovery request.

The moving party has the burden of supporting its motion for summary judgment by showing there are no remaining issues of fact. Porter v. Deeter Real Estate, 255 Ark. 1057, 505 S.W. 2d 18 (1964). In Russell v. City of Rogers, 236 Ark. 713, 368 S.W. 2d 89 (1963), our supreme court, after general remarks on the theory of summary judgment, said:

Hence any testimony that is submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party. [236 Ark. at 714]

Presumably we could infer from Mrs. Tisdale’s admission that she signed her husband’s name to the application that she rejected the coverage; however, she denied having, rejected it. Construing this evidence most strongly against the appellee, however, we must conclude her having signed her husband’s name does not settle the question whether the coverage was rejected by her. We agree with the appellants that the mere placing of a signature on a document is not, as a matter of law, conclusive of all issues as to the content, meaning or validity of the document.

We cannot escape the fact that the appellant Novella Tisdale flatly denied, under oath, having rejected the coverage. Under these circumstances, a material issue of fact remained, and the summary judgment cannot stand. Jones v. Halliburton Co., 240 Ark. 919, 403 S.W. 2d 51 (1966); Russell v. City of Rogers, supra.

Reversed and remanded.

Wright, C.J., dissents.

Ernie E. Wright, Chief Judge,

dissenting. The appellant, Lucien Tisdale, made written application for automobile liability insurance through the agent for appellee, Riverside Insurance Company. Uninsured motorist bodily injury and property damage are clearly rejected in the face of the application and no premium is specified in the application for such coverage. The appellant, Mrs. Tisdale, stated under oath in answer to interrogatories she executed the application for insurance at the instruction of her husband.

While Mrs. Tisdale’s response to request for admissions denied she rejected uninsured motorist coverage and denied she paid no premium for such coverage, and her answer to interrogatories stated the coverage was claimed pursuant to Arkansas law, Mr. Tisdale made no response to the request for admissions. The request for admissions was addressed to both appellants and required separate responses from each. Rule 36 of the Rules of Civil Procedure requires a party to whom a request for admissions is directed to answer the request in writing and under oath within thirty days, and if not so answered the matters embraced in the request are admitted. Such answer must be made by the litigant. Response to the request by an attorney for the litigant, as was attempted in this case, is inadequate and results in the admission of facts asserted in the request for admissions. Universal Life Ins. Co. v. Hawlett, 240 Ark. 458, 400 S.W. 2d 294 (1966). This decision was prior to the effective date of Rule 36, but the Rule is consistent with Ark. Stat. Ann. § 28-358 (Repl. 1962) then in effect.

The application for insurance was made on behalf of Mr. Tisdale only, and under a policy issued pursuant to that application Mrs. Tisdale would have coverage only to the extent the policy extends coverage to members of the insured’s family.

The following requests for admissions stand admitted by Mr. Tisdale by reason of his failure to answer the requests:

REQUEST FOR ADMISSION NO. 1: Admit that the application attached hereto, Special Risk Plan — Automobile Application, Form RVA 320 (3-72) SR, dated July 21, 1976, bearing the signature of L. L. Tisdale, was executed by the Plaintiff L. L. Tisdale.
REQUEST FOR ADMISSION NO. 2: Admit that you received automobile insurance policy from Defendant, Riverside Insurance Company, which reflected no uninsured motorist coverage.
REQUEST FOR ADMISSION NO. 3: Admit that you did not pay a premium for uninsured motorist coverage.

In view of these admissions by Mr. Tisdale resulting from his failure to answer the requests, we agree there is no genuine issue of material fact, and the court did not err in granting summary judgment in favor of appellees. As the named insured under the policy, Mr. Tisdale had no uninsured motorist coverage, it follows that members of his family would have no such coverage. Family members would have only such coverage as is provided by the contract between the company and the insured. Also, it is undisputed Mrs. Tisdale executed the application on behalf of Mr. Tisdale, and it clearly reflects uninsured motorist coverage is rejected and no premium is specified for such coverage. Although Mrs. Tisdale in response to requests for admissions denied the coverage was rejected and denied no premium was paid for such coverage, she made no explanation in answer to an interrogatory as to the basis for the claim for such coverage except the response, “Plaintiff does claim uninsured motorist coverage pursuant to Arkansas Law”. No assertion of fact was made by either appellant in explanation of the clear rejection in the written application of uninsured motorist coverage.

I would affirm.


author: Ernie E. Wright, Chief Judge.

text:
    Charles WASHINGTON v. STATE of Arkansas
    CA CR 80-1
    599 S.W. 2d 408
    Court of Appeals of Arkansas
    Opinion delivered April 30, 1980
    Released for publication June 4, 1980

      Kenneth C. Coffelt, for appellant.

      Steve Clark, Atty. Gen., by: Catherine Anderson, Asst. Atty. Gen., for appellee.
   Ernie E. Wright, Chief Judge.

Appellant Charles Washington was charged jointly with Curtis Lee Singleton with the crime of burglary in violation of Ark. Stat. Ann. § 41-2002 (Repl. 1977). Both were convicted by a jury and sentenced to three years imprisonment. The sentence of Singleton only was suspended.

For reversal appellant contends the court erred in refusing to direct a verdict of acquittal. Other errors argued are not discussed since we regard the above asserted error as dis-positive of the appeal.

The information charged the defendants in February, 1979, unlawfully and feloniously entered the residence of Debra Oliver in Little Rock with the purpose of committing therein theft of property.

There was undisputed evidence the appellant and his cousin, the co-defendant, were visiting in the home of their aunt situated near the apartment of the prosecuting witness, Mrs. Oliver. The aunt testified she heard a noise from the area of the Oliver apartment, and she sent the codefendant to see if anybody was breaking in. Mrs. Oliver was away from her apartment much of the time, it had previously been burglarized and the windows were boarded up. There is no suggestion in the record that appellant or his codefendant were involved in any previous burglary or that either had ever been convicted of a crime. The appellant went along with the codefendant to check on the Oliver apartment.

Both defendants testified the large board over the kitchen window was hanging loose, the window glass had been broken and a washing machine in the kitchen was pushed against the window preventing them from seeing into the apartment. They pushed the machine away from the window so they could look into the apartment, and a man inside came up with a gun and ordered both defendants to come inside the house. He directed Mrs. Oliver to call the police. The defendants then walked back to the aunt’s house nearby and were later arrested there on the burglary charge.

The defendants’ aunt and several witnesses corroborated the testimony of the defendants that the aunt asked the codefendant to go and check on the noise she heard coming from the area of the Oliver apartment.

Mrs. Oliver and Odell Houston testified they were in an upstairs bedroom of the Oliver apartment when they heard glass breaking and the washing machine being pushed. They got up and went downstairs. One of the defendants was inside the house and the other was in the window. Mrs. Oliver called the police. After some words, the defendants walked back to the aunt’s apartment. The defendants had no weapon. Mrs. Oliver testified the window was partly broken out, but additional glass was broken from the broken window, the board was off the window and the washing machine was pushed away from the window. She testified she paid no rent on the apartment since October and was subsequently evicted for nonpayment of rent.

The witness who lived near the Oliver apartment testified the windows in the Oliver apartment had been broken for four months and Mrs. Oliver was not living there in the day but was sneaking in there at nights.

The defendants are apparently teenagers, and have no criminal record. They walked the short distance from the aunt’s home to the Oliver apartment; they had no weapons or burglary tools; after the brief confrontation with Mrs. Oliver and her companion they did not try to run away, but walked back to the aunt’s home and remained there until the police arrived and arrested them. The occurrence was in the day time.

The present burglary statute § 41-2002 reads as follows:

(1) A person commits burglary if he enters or remains unlawfully in an occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment.
(2) Burglary is a class B felony.

To constitute the offense of burglary the accused must not only enter or remain unlawfully in an occupiable structure of another but such action must be accompanied with the purpose of committing therein an offense punishable by imprisonment. In this case it was necessary the evidence establish that appellant had the purpose of committing a theft of property since this was an element of the specific charge made. Purpose can be established by circumstantial evidence and often this is the only type of evidence available to show intent. However, the circumstances established by the evidence must be such that the requisite purpose of the accused can reasonably be inferred, and the evidence must be consistent with the guilt of the accused and inconsistent with any other reasonable conclusion.

In this case there is no evidence upon which to infer the purpose to commit a crime other than the entry or attempted entry of the apartment by the appellant and his codefendant. There is substantial evidence tending to show the defendants went to the apartment to investigate a noise indicating a possible burglary. While it was unlawful trespass to enter or attempt to enter the apartment, and the defendants could have been charged with criminal trespass, a misdemeanor, the actions of the defendant did not constitute burglary unless the evidence can be said to reasonably warrant the inference the entry or attempted entry of the structure was accompanied with the purpose of committing a theft of property therein.

From a careful review of the evidence we conclude the facts and circumstances in evidence were not sufficient to warrant the inference it was the purpose of appellant to commit a theft. There was substantial evidence the youths went to the Oliver apartment at the request of an aunt to investigate a noise. They obviously, at the least, used bad judgment in trespassing as they did, but there was no evidence of accompanying circumstances warranting an inference of a purpose to commit a theft. There was substantial evidence tending to negate such purpose, and an innocent purpose would not be inconsistent with the circumstances shown. Evidence which merely raises a suspicion of guilt or which is as consistent with the defendant’s innocence as his guilt is not sufficient. Underwood v. State, 205 Ark. 864, 171 S.W. 2d 304 (1943).

In Duren v. State, 156 Ark. 252, 245 S.W. 823 (1922), the defendant was convicted by a jury of burglary, it being alleged he entered a certain building with intent to steal 50 cases of coca cola of the value of $65.00. There was evidence the appellant’s codefendant reached through a broken window at a coca cola plant and picked up a bottle of soda while the appellant was standing by on the lookout. The defendants were interrupted by an employee of the business. The Supreme Court reversed the conviction, holding the circumstances did not warrant a conclusion there was an intent to remove as much as $10.00 worth of coca cola, and said the jury can only draw reasonable inferences to determine the intent of the intruder.

The crime of burglary can, of course, be complete even though the intention to commit a crime after unlawfully entering a structure is not consummated. However, the facts proven incident to an unlawful entry must show circumstances of such probative force as to reasonably warrant the inference of the purpose on the part of the accused to commit an offense punishable by imprisonment, other than the entry itself.

Since the motion for a directed verdict was made only at the close of the State’s case, we consider the evidence as it stood at that point, and conclude the evidence was not sufficient to warrant an inference of purpose on the part of appellant to commit a crime other than the unlawful entry. Therefore, verdict of acquittal should have been directed.

Reversed and dismissed.


author: Steele Hays, Judge.

text:
    Billie WHITLOW v. AMERICAN GREETINGS COMPANY and Charles L. DANIELS, Director, Arkansas Department of Labor
    CA 79-277
    599 S.W. 2d 410
    Court of Appeal of Arkansas
    Opinion delivered April 30, 1980
    Released for publication May 21, 1980

      Bill D. Etter, for appellant.

      Herrn Northcutt, for appellees.
   Steele Hays, Judge.

This is an unemployment compensation case. Appellant, Billie Whitlow, was disqualified for benefits under Ark. Stat. Ann. § 81-1106(a) (Repl. 1976), a pertinent part of which provides:

Provided no claimant shall be disqualified if he has voluntarily left his work to accompany, follow, or join the other spouse in a new place of residence if he has clearly shown upon arrival at the new place of residence an immediate entry into the new labor market and is in all respects, available for suitable work.

The appeal referee and the Board of Review both disqualified the appellant under the above quoted provision finding that the claimant quit her last work voluntarily to join her husband in a new place of residence, and did not enter the labor market in the new area immediately upon her arrival thereto. It is undisputed that Billie Whitlow had worked thirteen years for American Greetings Company in Osceola, Arkansas. Her only reason for quitting was that she would be married on June 25, 1979, and would be moving to her husband’s home in Brookland, near Jonsesboro, Arkansas. In anticipation of her marriage and move, the appellant gave the employer, appellee American Greetings Company, notice on June 18, 1979, that she would terminate her employment on July 5, 1979. The appellant was married on June 25 and actually established her new residence in Brookland on June 28 but, in order to honor her notice to the employer, Mrs. Whitelow commuted to work in Osceola, a distance of about 65 to 70 miles, until July 5, at which time she terminated her employment. On July 9, 1979, the appellant notified the Jonesboro office of the Employment Security Division that she was available for work in the Jonesboro area and she also filed a claim for unemployment benefits at that time.

It is undisputed that the claimant, anticipating her marriage and move outside the vincinity of her employment, took steps to secure employment in her new place of residence. She sought work at the Brookland School District and an oil company in the new area even before she had ended her previous employment. On July 9, 1979, only three days after (and the second business day following) her last day of work in Osceola, she contracted the local employment office in Jonesboro in an attempt to find work. On July 27 she was interviewed for a job with a local employer. All of this occurred before she was notified that her claim for benefits was denied. The record shows that she was not disqualified by the agency office in Jonesboro until July 31, 1979. At the time of the hearing before the referee, appellant was still looking for work and testified that she would be willing to take a job even if paid considerably less than she was making at the previous place of employment. The Appeals Tribunal held that the facts of this case did not demonstrate an immediate entry by claimant into the labor market. The Board of Review simply adopted this finding and routinely affirmed the determination made by the referee.

Appellant argued that there is no substantial evidence to support this finding of fact, and we agree. Certainly a person who attempts to find work in a new location even before she moves there, and then contacts the local employment office immediately after she moves in not trying to avoid work. The evidence in this case is undisputed that Mrs. Whitlow made an entry into the new labor market, not only immediately after the last day she worked, but immediately before leaving her job and in anticipation of the move. There is no evidence to establish that she was not in all respects, after July 5, available for suitable work in the new area.

It is brief appellee attempts to justify the decision of the Board of Review by emphasizing the legal meaning of the word immediate. Appellee refers to Black’s Law Dictionary, Revised Fourth Edition, page 884, quoting from the case of Alsam Holding Company v. Consolidated Taxpayers’ Mutual Insurance Company, 4 N.Y.S. 2d 498, 505, 167 Misc. 732, which points out that the word immediate is stronger than the expression “within a reasonable time” and implied prompt, vigorous action without delay. We find no fault with that legalistic definition. However, it must be remembered that in interpreting and applying this section [Ark. Stat. Ann. § 81-1106(a)] the basic design of the Act is to protect the employee from the economic consequences of unemployment through no fault of the employee; and, to that end, the Act should be liberally construed. Garrett v. Cline, 257 Ark. 829, 520 S.W. 2d 281 (1975). The appellee’s construction of the statute in the case at bar is strict and literal. Appellee simply did not take into account the applicant’s job seeking efforts the week or so before she terminated her employment. Apparently, its refusal to consider these particular efforts was because they were made before and not “upon her arrival at the new place of residence.” Claimant reported to the local Employment Security Office on the second business day after her last day of work. We do not think the strict and literal order of the Board is supported by substantial evidence in this case. As appellant points out, she had worked for thirteen years at a single job, and then, upon her marriage and relocation in a new area, attempted both immediately . before and immediately after to secure employment. There is no evidence to the contrary.

Reversed and remanded.


author: James H. Pilkinton, Judge.

text:
    Gene TITTLE v. CITY OF CONWAY et al
    CA 79-258
    599 S.W. 2d 412
    Court of Appeals of Arkansas
    Opinion delivered April 30, 1980
    Released for publication May 21, 1980

      Guy H. Jones, Phil Stratton, Guy Jones, Jr., Casey Jones, by: Guy H. Jones and Guy Jones, Jr., for appellant.

      Jessee W. Thompson, for appellees.
   James H. Pilkinton, Judge.

This is a case involving the dismissal of an officer from the Conway Police Department. Appellant, Gene Tittle, was dismissed from the Conway Police Department on February 28, 1975, by a letter of discharge from the chief of police which cited violations of certain sections of the rules governing the .conduct of police officers. A hearing was held before the Civil Service Commission beginning on March 24, 1975, and extending over several days. Appellant was represented, by counsel. On May 7, 1975, the Civil Service Commission voted unanimously to uphold the dismissal of Lieutenant Tittle by Chief Ruben Goss.

Appellant filed his notice of appeal to the circuit court, having previously filed a separate action against Ruben Goss, Jim Hoggard, Mayor of the City of Conway, and Vonnie Taylor, the present Chief of Police for the City of Conway, seeking a writ of mandamus directing that appellant be reinstated immediately. The cases were consolidated for trial, and the circuit court, on March 2, 1979, sustained the findings of the Civil Service Commission. Appellant now brings this appeal.

Appellant argues that the decision of the circuit court was contrary to the law and evidence.

The statute governing this case is Ark. Stat. Ann. § 19-1603 (Repl. 1980):

Rules & Regulations. The Board of Civil Service Commissioners herein provided shall prescribe, amend and enforce rules and regulations governing the fire and police departments of their respective cities, and said rules and regulations shall have the same force and effect of law.
These rules shall provide:
10. For suspension for not longer than 30 days, and for leave of absence.
11. For discharge or reduction in rank or compensation after promotion or appointment is complete, only after the person to be discharged, or reduced, has been presented with the reasons for such discharge or reduction in writing.
The person so discharged or reduced shall have the right within ten days from the date of notice or discharge or reduction to reply in writing and should said person deny the truth of such reasons upon which such discharge or reduction is predicated and shall demand a trial, said Commission shall grant a trial as provided hereinafter.

The rules and regulations for the City of Conway give the chief of police certain powers in disciplining police officers. Pursuant to Section 2, Paragraph 5, the chief of police is given the power to suspend an officer:

He shall have the power to summarily suspend any member of the department from duty for flagrant violations of the rules and regulations and where the reputation and discipline of the Department would suffer if such action were not taken. In the event of such suspension he shall, as soon thereafter as is practicable, notify the suspended member in writing, setting forth grounds for such suspension, the terms and duration thereof. He shall, by signed copy of the above written notice of suspension, notify the Mayor, the Secretary of the Civil Service Commission and the City Attorney.

Also, in Section 5, Paragraph 31, a city police officer can be dismissed for violation of the rules:

The following acts, infractions or violations of the Department Rules and Regulations shall be deemed, upon conviction, as sufficient cause for separation from the Department. . . .

Appellant argues that since the chief of police was given only the power to suspend an officer, he went beyond his permissible discretion when he discharged appellant. Appellee contends that Russ v. Civil Service Commission of Pine Bluff, 222 Ark. 666, 262 S.W. 2d 137 (1953) should be controlling in this case. In Russ, supra, a member of the fire department was discharged by the fire chief. The City of Pine Bluff had an identical regulation as the one in this case, giving the fire chief only the power to “summarily suspend” a member of the department for “flagrant violation” of the rules and regulations. In that case appellant claimed that the fire chief had only the power to suspend an officer and therefore, his discharge was improper and illegal. The Civil Service Commission and the Jefferson Circuit Court upheld the discharge. On appeal, the Arkansas Supreme Court held that appellant’s claimed distinction between “suspend” and “discharge” was unsound. The court stated that “suspend” can mean permanent discharge from employment. The court stated further that even if the fire chief could only suspend, nevertheless the Civil Service Commission in effect “discharged” the employee. With regard to the commission’s discharge, there was sufficient cause for appellant’s dismissal.

We agree that Russ, supra, would be dispositive of the issue. However, appellant argues that City of North Little Rock v. Montgomery, 261 Ark. 16, 546 S.W. 2d 154 (1977), in effect, overrules the holding in the Russ case. In Montgomery, supra, appellee, a police officer, was indefinitely suspended without pay by the chief of police, pending an investigation of certain criminal offenses involving appellee. The commission upheld the indefinite suspension, but the circuit court reversed on the basis of § 19-1603(10) which limits a suspension to thirty days.

On appeal, the City of North Little Rock argued that the statute should be liberally construed and when “exigent circumstances so demand”, a longer suspension should be allowed. Furthermore, it contended that since the commission had the power to discharge an employee, by implication, the commission could suspend an employee for more than thirty days.

The Arkansas Supreme Court rejected both arguments. The court stated: ■

We have held that ‘[T]he meaning of a statute must be determined from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning. It is our duty to construe a legislative enactment just as it reads.’ Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W. 2d 881 (1965). We have also said ‘[I]n construing statutes in the absence of any indication of a different legislative intent, we give words their ordinary and usually accepted meaning in common language.’ Phillips Petroleum v. Heath, 254 Ark. 847, 497 S.W. 2d 30 (1973).
In the case at bar the legislature, in plain and ordinary words, expressly limited a suspension of a policeman or foreman to a period of thirty days and then directed the appellant ‘[t]o adopt such rules not inconsistent with the act.’ Therefore, the trial court was correct in its interpretation of the act. To hold otherwise would be contrary to the obvious and unambiguous intent of the legislature. That forum and not the courts is the proper place to urge a change in this legislative enactment.

We believe the import of the Montgomery decision overrules the holding in Russ insofar as the definition of the word “suspend” is concerned. “Suspend” does have a distinct meaning in and of itself. Hence, the Chief of Police of Conway did not have the power to discharge appellant under the statute and regulations in force.

In the case before us, the police chief could only suspend appellant for a period of 30 days. Nevertheless, the'Civil Service Commission did have the power of discharge and its decision of May 7, 1975, had the effect of discharging appellant. Thereafter appellant was afforded an appeal to circuit court where the matter was heard de novo. He was represented by counsel in circuit court, and was given an opportunity to present additional evidence. Appellant did in fact offer additional evidence before the court which included his own testimony and that of former Chief of Police Ruben Goss. The circuit judge wrote an opinion covering the full proceedings, and making certain findings of fact which we find to be supported by substantial evidence. The circuit court upheld the dismissal of appellant. The court below thought Russ was controlling. However, it has long been the rule in Arkansas that the trial judge’s decision will not be reversed if he reached the right results, even though he gave an erroneous reason. Moose v. Gregory, 267 Ark. 86, 590 S.W. 2d 662 (1979); Greeson v. Cannon, 141 Ark. 540, 217 S.W. 786 (1920). In the instant case, there is abundant evidence to support a finding of dismissal. Witnesses for the City of Conway testified that appellant frequently left his work early while on the night shift; that he had been known, on occasion, to come to work after he had been drinking. There was evidence of other conduct unbecoming to a police officer. Although the police chief did not have the power to dismiss, he did have the power to suspend appellant for thirty days. Following appellant’s dismissal, he had the opportunity to have his case reviewed by both the Civil Service Commission and the circuit court. Hence, in light of what we find to be the correct law in this case, we believe the trial court’s finding is supported by substantial evidence and find no reversible error. The letter of dismissal, however, must be treated as a “summary suspension” for thirty days, entitling appellant to compensation for his salary dating from the expiration of his “suspension” until the decision of the commission was handed down.

Affirmed as modified.


text:
    J. C. PENNEY LIFE INSURANCE COMPANY v. Cora E. WARREN
    CA 79-365
    599 S.W. 2d 415
    Court of Appeals of Arkansas
    Opinion delivered April 30, 1980
    Released for publication May 21, 1980

      Rieves, Rieves & Shelton, by: Donald A. Forrest, for appellant.

      Fletcher Long, Jr., for appellee.
   James H. Pilkinton, Judge.

This appeal comes from a circuit court judgment entered on a jury verdict in favor of appellee. An insurance policy is involved which was issued by appellant on December 1, 1973, insuring the life of Albert Glen Warren. His wife, Cora E. Warren, appellee herein, was named beneficiary. Appellee as plaintiff below contends the policy was in full force and effect on November 1, 1977, the date Mr. Warren died, and that she is entitled to the sum of $10,000 in accordance with the terms of the policy. Appellant denied coverage claiming the policy had lapsed due to the non-payment of premium for March 1, 1977.

Mrs. Warren sought to prove that she had timely paid all the premiums for her husband, who was ill. However, the undisputed facts were that the March, 1977, payment was tendered after the grace period and was not accepted by the company. The trial court directed a verdict against her on this point.

For an additional amount, a waiver of premiums during total and permanent disability was provided in the policy. It was stipulated that Mr. Warren had become permanently and totally disabled prior to March, 1977, and at a time when the policy was in force. Mrs. Warren asserted therefore that the coverage was still in force because of the waiver of premium upon disability clause of the policy. The case was submitted to the jury only upon the issue of whether the policy had been kept in force by the clause providing for a waiver of premiums during the disability of the insured.

Appellant argues that the court should have directed a verdict for it on all points. Appellant’s motion for a directed verdict below was on the theory that if the policy had lapsed for non-payment of the March, 1977, premium, it was improper for the court to submit to the jury the issue of whether the policy was saved by the waiver of premium clause. In passing on the motion for a directed verdict the trial court stated:

The court is going to grant your motion for directed verdict in part and deny it in part . . . but not on the possibility of disability, so we can go to the jury on the disability.
The judgment of the court contained the following:
At the conclusion of the Plaintiff and Defendant’s case this court having directed a verdict in Defendant’s favor to the effect that the Plaintiff could not submit to the jury the issue of whether or not payments or premiums after March 1,1977, continued the policy in effect and . . . if the policy was in effect it was not due to premiums being paid by the Plaintiff or Plaintiffs decedent after March 1, 1977, but was in effect, if at all, due to the waiver of premiums due to disability clause in the contract of insurance.

Counsel for appellant stated its position in the following way:

On the question of the directed verdict, the Defendant objects to the court’s ruling on the disability portion of the directed verdict in that if the policy had lapsed as this court so held, then the provision concerning waiver of premiums upon disability would also have lapsed and could not have, by itself, survived the lapse of the policy.

Appellant relies on Couch on Insurance 2d, § 69:8 and the New York case of Struhl v. Travelers Insurance Company, 281 N.Y. 584, 22 N.E. 2d 162, as authority for the provision that the policy had lapsed in its entirety. The Arkansas courts have not adopted the language of Couch on Insurance cited by appellant nor the law set forth in Struhl v. Travelers Insurance Company, supra. Be that as it may, these authorities actually go to the issue upon which the court did direct a verdict in appellant’s favor. The trial court definitely held that the premium payments made after the grace period, and after a reinstatement application had been submitted, did not prevent the policy from lapsing for the non-payment of premiums if any premiums were in fact due.

It is the existence of disability that fixes liability and not the proof thereof. Mutual Life Insurance Company v. Morris, 191 Ark. 88, 83 S.W. 2d 842 (1935). The testimony shows that Mr. Warren was probably disabled within the meaning of the policy in February of 1976. In any event, it was stipulated by appellant that Mr. Warren had been disabled within the meaning of the policy since February of 1977. Under this proof, the liability of the company under the disability provisions of the policy had become fixed prior to March, 1977. The trial court was correct in submitting to the jury the question of whether the policy of insurance was in full force and effect at the time of Mr. Warren’s death under the disability waiver of premium clause.

Appellant next argues that the insured failed to give the notice of disability required by the policy. The disability portion of the policy provided:

The Company will waive the payment of all premiums becoming due upon this policy during the continuance of total and permanent disability as herein defined upon receipt of its home office or administrative office of due proof that the insured has suffered such disability. Any premium so waived shall not reduce the sum payable in any settlement of the policy and all other privileges provided in this policy shall be the same as if the waived premiums had been paid as they became due.
Waiver of the premiums shall begin with the premium due on or subsequent to the date of commencement of such disability provided, however, that no premium shall be waived the due date of which is more than six months prior to the date on which the company received a notice of claim.
NOTICE AND PROOF OF CLAIM — A written notice of claim of such disability and proof of such disability must be presented at the home office or administrative office of the company (a) during the lifetime of the insured, (b) during the continuance of total disability, and (c) within six months of the due date of the first premium in default, if there be default. Failure to give such notice and such proof within such times shall not invalidate any claim if it shall be shown that it was not reasonably possible to give such notice and such proof within such times, and that such notice and such proof were given as soon as reasonably possible.

As will be noted, the policy provided that failure to give notice and proof shall be excused if it was not reasonably possible to give such notice. The evidence clearly shows that Mr. Warren suffered from kidney failure in February of 1976 and from that time until the date of his death he was on dialysis, at first two or three times a week in a hospital at Memphis and then beginning in December of 1976, two or three times a week in his home at Hughes, Arkansas. The testimony shows that during Mr. Warren’s entire illness, and up until the time of his death on November 1, 1977, Mrs. Warren was employed full time in Memphis, Tennessee. During the entire time of Mr. Warren’s illness, Mrs. Warren was apparently working at her job or with her husband, on an average of approximately 16 hours a day. The testimony further shows that Mr. Warren was gravely ill and was barely able to take care of his day to day needs. The jury was instructed that the failure to give notice of Mr. Warren’s disability in accordance with the terms of the policy would be excused if it were not reasonably possible for such notice and such proof to have been given within the time provided by the policy. After having heard all of the testimony and having been properly instructed the jury found for the plaintiff. We hold there was substantial evidence to support the judgment. Beard v. Coggins, 249 Ark. 518, 459 S.W. 2d 791 (1970).

In Home Life Insurance Company v. Keys, 187 Ark. 796, 62 S.W. 2d 950, it was held that the company involved became liable when its insured became totally and permanently disabled during the life of the policy, though proof of such disability was not furnished until after the policy had been cancelled. The case of Mutual Life Insurance Company v. Morris, supra, is also in point here. The court said:

It is the settled doctrine of this court that unless, by the inescapable language of the policy, notice of disability and proof thereof are made conditions precedent to recovery under disability clauses, it is the existence of disability that fixes liability, and not proof thereof.

In the case before us there is absolutely no question about the matter of disability and the appellant company can be prejudiced in no way by the lapse of time or the failure to receive notice prior to the death of Mr. Warren.

Appellant also argues that since Mr. Warren submitted a reinstatement application, he thereby waived the disability clause and admitted that the policy had lapsed entirely for the non-payment of premiums. We find no merit in this contention. In the first place, the reinstatement application was submitted at the suggestion of the company. The liability had been fixed prior to the failure to pay the March, 1977, premium. The mere submission of a reinstatement application at a later date would not alone waive the liability which had previously attached.

Appellant finally argues that cases like Mutual Life Insurance Company v. Morris, supra, and Home Life Insurance Co. v. Keys, supra, have no application here because they were superseded by Act 148 of 1959, the Arkansas Insurance Code. We find no merit in this argument. The code among other things gave the Insurance Commissioner the power to approve the form of policies; however, that act did not change the case law applicable to the circumstances here involved.

Finding no error, the judgment is affirmed.


text:
    Pamela PULLIAM v. Thomas E. McGARITY et ux
    CA 79-322
    599 S.W. 2d 419
    Court of Appeals of Arkansas
    Opinion delivered April 30, 1980
    Released for publication May 21, 1980

      Ralph C. Hamner, Jr., for appellant.

      Kenneth C. Coffelt, for appellee.
   Marian F. Penix, Judge.

Pamela Pulliam, Appellant, was injured in Arizona in an automobile accident involving Thomas McGarity, Appellee. Pulliam sued Thomas E. McGarity and Jane Doe McGarity, husband and wife, in Superior Court of Arizona. Service was had upon both pursuant to • Arizona’s long-arm statute. Neither Thomas McGarity nor Dean McGarity, his wife, appeared in the Arizona court. A judgment was entered against both McGaritys in the sum of $22,356.29. A Petition for Registration of the Arizona Judgment was filed in the Circuit Court of Pulaski County, Arkansas. A Response to Petition for Registration alleging fraud was filed. The parties agreed there was no basis for denying the Petition for Registration against Thomas McGarity. The Court denied the registration as to Ms. McGarity. Ms. Pulliam has appealed.

Pulliam alleges error in the Court’s ruling on an issue previously decided by the Arizona court.

The Arkansas trial court found Thomas McGarity was not Dean McGarity’s agent at the time of the accident and found there was no common purpose shared by the McGaritys.

Pulliam contends the lack of agency and common purpose are clearly defenses that could have been made in the action in Arizona and are collateral attacks upon the judgment. Under Arizona’s community property law negligence of one spouse is imputed to the other.

The record reflects Dean McGarity was never in Arizona; had never had an automobile in Arizona; knew nothing about the car wreck; that Thomas McGairty was not on any mission for her and there’s no proof she had any knowledge of the pending suit in Arizona. A judgment in a foreign court which lacks jurisdiction will not be recognized in this state any more than a judgment in our own courts which lack jurisdiction will be recognized.

Pulliam relies on Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W. 2d 549 (1974). The Purser case, however, can be distinguished. There the appellants’ counterclaim and set-off were dismissed because the allegations of fraud and lack of jurisdiction were lacking. The court quite properly held the counterclaim could not be pleaded in an action to register a foreign judgment.

An Arizona Judgment may be attacked for want of jurisdiction. Arizona law provides service is proper upon a wife if had on the husband, and if the husband is acting as her agent and also if the circumstances from which the action arises were such to indicate a joint purpose. In Arizona defenses to service are lack of agency and lack of joint purpose.

Dean McGarity, appellee, quite properly raised the defenses of lack of agency and lack of joint purpose because they are defenses which go to jurisdiction, i.e. proper service.

We find there to be substantial evidence to support the determination of the trial court that the Arizona court lacked jurisdiction over appellee. The trial court heard the testimony of the witnesses and determined the appellee’s defense to be valid. Therefore, the trial court properly held the judgment against Dean McGarity to be void.

Affirmed.