author: Tom Glaze, Judge.

text:
    Nola Hickingbottom COX v. WOOTEN BROTHERS FARMS, INC.
    CA 80-348
    601 S.W. 2d 278
    Court of Appeals of Arkansas
    Opinion delivered January 21, 1981

      W. G. Dinning, Jr., for appellant.

      Daggett, Daggett & Van Dover, by: W. H. Daggett, for appellee.
   Tom Glaze, Judge.

The appellant, Cox, appeals an adverse chancery court decision and argues one issue for reversal. The sole issue to be decided is whether the trial court erred in applying the equitable doctrine of subrogation so as to entitle the appellee, Wooten, to the rights of the Federal Land Bank of St. Louis on its note and mortgage executed by Cox and other named heirs who acquired an interest in certain property under a family settlement agreement. Whether or not the trial court correctly applied the doctrine directly depends upon the facts before the court and the facts are not in dispute.

On February 27, 1967, Clinton Hickingbottom, Nola Hickingbottom, his wife (now Cox, appellant), and Jerry Hickingbottom, Mildred Hickingbottom, Shirley Baker and Jane Dare (all children of Clinton Hickingbottom by a former marriage) executed a promissory note arid mortgage to the Federal Land Bank of St. Louis in the sum of $89,475. Clinton Hickingbottom owned land situated in Phillips County which secured the promissory note. Clinton Hickingbottom died, and after his death the widow, Cox, and the heirs, the deceased’s four children, entered into a family agreement. The agreement limited each family member’s liability on the Federal Land Bank note. First, 100 acres of the encumbered land was assigned to Cox as her dower interest, and the remaining 267 acres were assigned to the heirs. By this same agreement, the note payment to Federal Land Bank was prorated between Cox and the heirs so that each was to pay their share when the note payment came due. This agreement became a part of a probate court order.

Sometime after the family agreement, Hickingbottom’s heirs (children) agreed to sell their assigned property to Wooten. Wooten agreed, among other things, to assume the heirs’ total obligation on the note to the Federal Land Bank. Wooten received credit on the purchase price paid in the amount the heirs were to pay on the note, i.e, 71.2% of the entire debt. Wooten also required the heirs to give it a mortgage on their remainder interest in the lands, assigned to Cox in case Wooten was ever called upon to pay her pro rata share (28.2%) of the debt owed on the Federal Land Bank loan.

All went well for four years until Wooten' found it necessary to refinance its operation and obtain an additional loan from the Fedéral Land Bank. Before Wooten could be approved for additional funds, Wooten was required to pay off the entire mortgage indebtedness, including the pro rata obligation of Cox. Cox was unaware that Wooten had paid the entire Federal Land Bank note until she was advised that the pro rata payments she had continued to pay were being placed in Wooten’s account and not on the Federal Land Bank note. Cox then refused to make her 1980 payment and any further payments, contending Wooten was a volunteer when it liquidated the Bank note, and she no longer was obligated to pay Wooten or the Federal Land Bank. Wooten filed action against Cox in lower court seeking the 1980 payment which was past due and an order compelling her to make all further payments to Wooten on her pro rata share of the original debt to the bank. The trial court granted Wooten the relief it sought and it is this adverse decision from which Cox appeals.

Our Supreme Court has considered the doctrine of subrogation and its application on many occasions and most of the relevant Arkansas cases are set forth in the parties’ briefs. The doctrine is no better set forth and explained than in the case of Baker, Adm’r v. Leigh, 238 Ark. 918, 385 S.W. 2d 790 (1965) wherein the Court, citing Southern Cotton Oil Company v. Napoleon Hill Company, 108 Ark. 555, 158 S.W. 1082 (1913), adopted the following discussion and guidelines in determining when subrogation should be applied: ing money to pay a debt, should be substituted for or in place of the creditor, such person will be so substituted.’

The doctrine of subrogation is an equitable one, having for its basis the doing of complete and perfect justice between the parties without regard to form, and its purpose and object is the prevention of injustice. Cyc. also says, ‘And generally, where it is equitable that a person, not a mere stranger, intermeddler, or volunteer, furnish-
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‘It rests upon the maxim that no one shall be enriched by another’s loss, and may be invoked wherever justice and good conscience demand its application in opposition to the technical rules of law, which liberate securities with the extinguishment of the original debt. This equity arises when one not primarily bound to pay a debt, or remove an incumbrance, nevertheless does so; either from his legal obligation, as in case of a surety, or to protect his own secondary right; or upon the request of the original debtor, and upon the faith that, as against the debtor, the person paying will have the same sureties for reimbursement as the creditor had for payment. And this equity need not rest upon any formal contract or written instrument. Like the vendor’s lien for purchase money, it is a creation of a court of equity from the circumstances.’ The theory of equitable assignment, as laid down by Pomeroy is: ‘In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor, primarily and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit; he is subrogated to the rights of the mortgagee to the extent necessary for his own equitable protection. The doctrine is also justly extended, by analogy, to one who, having no previous interest, and being under no obligation, pays off the mortgage, or advances money for its payment, at the instance of a debtor party and for his own benefit; such k person is in no true sense a mere stranger and volunteer.’ [Citations omitted and emphasis supplied.]

From a review of the record and undisputed facts of the case at bar, we can conceive of no more appropriate set of facts and circumstances to which the equitable doctrine of subrogation should apply. Of course, Wooten was not originally and primarily indebted to the Federal Land Bank; Cox and the four children (the heirs) were. Cox continued to be obligated to the Bank even after Wooten purchased the heirs’ land and assumed the debt in question. It was not until Wooten was compelled to pay the entire note by the Federal Land Bank when Cox decided she was no longer indebted to anyone, the Bank of Wooten. Wooten was protecting a legitimate interest when it paid the entire debt to the bank, and Cox should not be permitted to be unjustly enriched merely because Wooten was required to pay off a loan for which both Wooten and Cox had an obligation to pay. It is difficult to perceive how Wooten can be called a volunteer under the circumstances described when it purchased land that is a part of the Hickingbottom family agreement, and in doing so also assumed a note obligation to the Federal Land Bank albeit to be paid apart but in conjunction with Cox, who had a continuing pro rata responsibility on the same note.

Cox relies heavily on the case of Moon Realty Company, Inc. v. Arkansas Real Estate Company, Inc., 262 Ark. 703, 560 S.W. 2d 800 (1978) which she claims is controlling of the facts herein. We disagree. The Moon case involved two tax defaulting property owners, Rose Courts and Arkansas Warehouse Corporation. The United States obtained a tax lien on the property owned by the Rose Courts and the Warehouse Corporation. This property was purchased by Moon Realty Company at a foreclosure sale, but the sale was subject to a United States tax lien. Before the government would release its lien interest in the defaulting owner’s property, it required that Moon pay not only the taxes owed by three other parties, Arkansas Real Estate Corporation, Robert and Mary Traylor. These last three named parties had no interest in the foreclosure action or in the property owned by Rose Courts and the Warehouse Corporation. Unlike Cox in the case at hand, the Traylors and Arkansas Real Estate Corporation were truly strangers and the court did not apply the doctrine of subrogation to permit Moon to recoup the tax payment Moon made for the Traylors and the Arkansas Real Estate Corporation. The court did, however, find Moon was entitled to subrogation rights against Rose Courts and the Warehouse Corporation.

After a careful review of the record, it is clear that Wooten was required to and in good faith did liquidate the' debt owing to the Federal Land Bank, including Cox’s pro rata share. We further hold that Wooten was in no sense of the word a volunteer, and therefore, Wooten is entitled to equitable subrogation rights against the appellant, Cox.

Affirmed.

Cracraft, J., not participating.


source: Caselaw Access Project

license: Public Domain

text:
    Patty HAMRICK v. THE COLSON COMPANY
    CA 80-415
    610 S.W. 2d 281
    Court of Appeals of Arkansas
    Opinion delivered January 21, 1981

      Sam H. Boyce, for appellant.

      Frierson, Walker, Snellgrove & Laser, by: David N. Laser, for appellee.
   Tom Glaze, Judge.

This is an appeal from a decision of the Workers’ Compensation Commission denying appellant’s claim for statutory fees on temporary total disability benefits and medical expenses arising from a compensable injury sustained on September 7, 1977. The appellant’s contention on appeal is simply that although benefits were paid, they were not timely paid by the appellee. Moreover, it is contended that nothing would have been paid unless appellant had hired an attorney. This being true, appellant argues that benefits were controverted, and she is entitled to attorney s fees. The Supreme Court in Aluminum Company of America v. Henning, 260 Ark. 699, 543 S.W. 2d 480 (1976) treated the question of controversion as one of fact. More specifically, the Court in Henning set forth the following standard of review on the controversion issue:

A liberal construction favoring the claimant mandates a holding that the question whether a claim is controverted be one of fact to be determined from the circumstances of the particular case, only one of which is the status of the formal proceedings before the commission, and that, as in other such determinations, the commission’s finding should not be reversed if there is substantial evidence to support it, or unless it is clear that there has been a gross abuse of discretion.

The facts in this case are clear and are generally not in dispute. The appellant, Hamrick, sustained a compensable injury to her arm on September 7, 1977. The appellee, Colson, sent Hamrick to its physician, Dr. Wisdom. On this same day Hamrick also saw her family doctor, Dr. Reynolds, who stated she could return to work but must have light duties for at least two weeks. Hamrick returned to Dr. Wisdom on September 9, 1977, at which time the doctor released her for work commencing September 13, 1977. On September 13, Hamrick also saw her attorney and the attorney arranged a doctor’s appointment for her on November 16, 1977, with Dr. Lester.

Hamrick returned to work on September 13, and after incurring difficulties in handling her duties, she was unable to continue working from September 15 until September 29. At Hamrick’s request, Colson her to Dr. Hudson, a neurosurgeon. It was his opinion that Hamrick had muscle spasms and he advised two or three days rest. Hamrick returned to work on September 29.

The next important event occurred on October 10, 1977, when Hamrick’s attorney filed a workers’ compensation claim, stating Colson had controverted Hamrick’s claim for benefits. Colson then engaged an attorney on or about October 21, 1977, who, by letter to the Commission, stated that from the medical provided it would controvert any sums over and above the monies already paid.

On November 16, 1977, Hamrick kept her appointment with Dr. Lester, but the same day Lester referred her to Dr. Allen. It was Dr. Allen, who, on November 16, first decided Hamrick required surgery. Hamrick arranged for the surgery to be done on December 5, 1977. Colson then received Dr. Allen’s report on November 21,. 1977, and its attorney, by letter dated November 23, 1977, requested a second opinion by an orthopedist, Dr. Dickson, and further asked Hamrick’s attorney to permit the second examination prior to any surgery to be performed by Dr. Allen. On or about November 30, 1977, Hamrick apparently first notified Colson that she would have her surgery on December 5, 1977, and Colson in turn promptly notified its attorney. After some scheduling difficulties in trying to arrange an appointment prior to December 5, Colson did schedule and Hamrick met an appointment with Dr. Rosensweig on December 2, 1977. Dr. Rosensweig agreed with Dr. Allen’s opinion and decision that surgery was necessary. After learning of Dr. Rosensweig’s opinion, Colson’s attorney confirmed by letter dated December 8, 1977, to the Commission that Colson acknowledged Hamrick’s claim to be compensable and did in fact pay all benefits commencing December 19, 1977, two weeks after the date of surgery.

After the Commission reviewed the above facts and evidence of record, it concluded, among other things, that Colson had demonstrated good faith in meeting its obligations under our workers’ compensation law, and the Commission rendered an opinion that Hamrick had simply not shown by a preponderance of evidence that her claim had been controverted. As is noted in Henning, the finding should not be reversed if there is substantial evidence to support it or unless the Commission abused its discretion. See also, Turner v. Trade Winds Inn, 267 Ark. 861, 592 S.W. 2d 454 (1980). Moreover, it is well settled that the mere failure of an employer to pay compensation benefits does not amount to controversion, especially in instances when the carrier accepts the injury as compensable and is attempting to determine the extent of disability. Horseshoe Bend Builders v. Sosa, 259 Ark. 267, 532 S.W. 2d 182 (1976).

In resolving the issue of whether the evidence warrants the Commission’s finding that no controversion occurred, there are certain facts in the record which we conclude substantiate such a decision. First, Hamrick had seen three doctors (including her own) who had never diagnosed her specific medical problem, and therefore, none of the three recommended surgery. The doctors informed her she suffered from a pulled muscle or muscle spasms. Colson relied on this medical advice in its decision to pay no further medical expenses. The general rule is that when an employer contends that he acted in reliance upon responsible medical opinion in refusing or terminating benefits, penalties (statutory fees) are not ordinarily imposed. 3 Larson’s Workmen’s Compensation Law, § 83.40 (1976). In this case, Hamrick was not only referred to the doctor who normally evaluated Colson’s employees, but also she saw a specialist (neurosurgeon), and her own family doctor. There is no reason to believe from the record that Hamrick did not receive responsible medical treatment. Secondly, no additional or contrary medical evidence to that which Colson already had was provided by Hamrick’s attorney until November 21, 1977. This was true even at the time Hamrick’s attorney filed her claim on October 10, 1977. The proof clearly shows that no one knew the extent of Hamrick’s real injury until Dr. Allen’s diagnosis on November 16. Thus, it is logical to assume from these facts that no actual controversion could have existed until Dr. Allen’s opinion was obtained and presented to Colson for its evaluation. It was after receipt of Dr. Allen’s report that the extent of Hamrick’s injury became known by Colson.

The statutory law which controls when the employer must provide medical, surgical, hospital and nursing services to the employee is set forth in Ark. Stat. Ann. § 81-1311, which in pertinent part states:

The employer shall promptly provide for an injured employee such medical, surgical, hospital and nursing services ... as may be reasonably necessary for the treatment of the injury received by the employee . . . within a reasonable time after knowledge of the injury. [Emphasis supplied.]

As mentioned earlier, Colson was unaware of the extent of Hamrick’s injury until November 21, .1977, which was forty-two days after Hamrick’s attorney filed her claim and thirty-one days after Colson filed a letter controverting the claim based on the previous medical. Up to this point in time, all medical reports indicated no need for surgery and, in fact, Hamrick worked during this entire period from September 29, 1977, to December 5, 1977. Based on these facts, it is difficult to understand what more Colson could have done. Colson had paid medical expenses and compensation benefits based on the current medical, it referred Hamrick, upon her request, to another physician, a neurosurgeon, and Hamrick was permitted to work and draw wages until the date of surgery. Certainly these facts are consistent with the Commission’s finding that Colson demonstrated good faith.

Colson’s actions after it was confronted with Dr. Allen’s new and conflicting medical report are important. The attorney for Colson promptly sought an early, independent medical opinion to confirm Dr. Allen’s diagnosis and surgery recommendation. Since Hamrick had already scheduled her surgery for December 5, 1977 (which she chose not to delay), problems arose in scheduling an appointment in advance of surgery. A letter by Colson’s attorney dated December 1, 1977, indicated that Hamrick had not advised Colson until on or about November 30, 1977, that her surgery would be on December 5. An appointment was finally arranged, however, and Hamrick was examined by Dr. Rosensweig on December 2, 1977, i.e., eleven days after Colson first gained knowledge of Dr. Allen’s opinion and three days before the date of surgery. Under these pressing circumstances and time deadlines, Colson’s actions were prompt in its attempt to obtain another medical opinion upon which it could base a decision to either controvert or not controvert the medical expenses and disability payments to be incurred due to Dr. Allen’s opinion. Colson assumed responsibility for Hamrick’s medical expenses and surgery six days after Dr. Rosensweig examined Hamrick, confirming the extent of her injury. Again, the time and manner in which Colson acted was such that the Commission could find it to be reasonable.

If there had been conflicting medical evidence at the time Hamrick’s claim was filed, our decision, and most likely the Commission’s, would be different. Moreover, if there was other evidence which would show Colson had acted in bad faith or had unreasonably delayed its investigation of Hamrick’s claim, a different result would have been reached. We have indicated that on appeal this court will not interfere with the Commission’s determination on the issue of attorney’s fees unless there is an abuse of discretion. We are of the view that the Commission did not abuse its discretion and, further, there was substantial evidence to sustain its finding that appellant failed to show her claim was controverted.

Affirmed.

Cloninger and Cooper, JJ., dissent.


author: George Rose Smith, Justice.

text:
    Lawrence J. PILKINGTON v. Claude RILEY, d/b/a RILEY PAVING COMPANY
    80-143
    610 S.W. 2d 570
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981

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

      Anderson & Kilpatrick, by: Overton S. Anderson, for appellee.
   George Rose Smith, Justice.

Pilkington brought this action to recover for personal injuries and property damage sustained when his pickup truck ran into a heavy roller being used by the defendant Riley, a road contractor, in resurfacing part of Highway 81 north of Monticello. The jury, in response to interrogatories, apportioned the total negligence as 100% in Pilkington and none in Riley, none in Riley’s employee, Ethel Winston, and none in Curtis Vincent, a third-party defendant brought in by Riley. The appeal comes within our jurisdiction as a tort action. Rule 29 (1) (o). We find no merit in any of the five points argued for reversal.

On the afternoon of the accident Riley and his crew were rolling hot asphalt on the east half of the highway, that half being closed to traffic. Riley had stationed flagwomen to the north and to the south, who were to control the one-way traffic and to communicate with each other by means of walkietalkies. According to some of the testimony, which was disputed, there were signs to the south warning motorists of “Flagman Ahead” and “Fresh Oil.” A heavy rain had been falling before the accident. As the raindrops hit the hot asphalt they vaporized, creating a heavy fog that completely obstructed the vision of approaching motorists. Inside the fog Riley’s crew had temporarily stopped work, but the roller was left standing in the northbound traffic lane.

The plaintiff Pilkington, going north, was pulling a camper that impaired his ability to stop quickly. He testified he did not see any warning signs. He did see the fog from about a half mile away. He was driving about 40 miles an hour and following Vincent’s Volkswagen at a distance of 75 or 80 yards. He saw the Volkswagen disappear in the fog and could not say that he applied his own brakes before also entering the fog. Vincent had collided with the roller, and Pilkington did too. Pilkington had not seen the Volkswagen run a flag person off the road.

Ethel Winston, the flagwoman on the south, testified that she was standing in the center of the road, flagging traffic, when the Volkswagen came up “driving like wild.” She tried to flag it down, but had to get out of the way and fell backwards into the ditch by the highway. Her testimony indicates that she did not get back up on the highway in time to flag down Pilkington.

First, in a pretrial proceeding the trial judge sustained Riley’s motion that the investigating state trooper not be permitted to testify that ten or twelve minutes after the accident he asked the flagwoman on the north side where the other flag person was, and the flagwoman said she didn’t have radio contact: “I do not know where she’s at.” The trial judge, in overruling Pilkington’s motion for a new trial, thought that the trooper’s testimony should have been admitted, because the flagwoman’s statement was a present sense impression within Uniform Evidence Rule 803(1). Ark. Stat. Ann. § 28-1001 (Repl. 1979). The judge decided, however, that the error was harmless, because Riley did not contend that the flagwoman on the south was flagging traffic when Piikington reached her station. We agree with the trial judge, not only because the possible error was harmless but also because what happened ten minutes after the accidents, when traffic in both directions might have been at a standstill, raised collateral issues not shown to have a direct bearing upon the case.

Second, the court gave AMI 603, telling the jury that the fact that accidents occurred is not of itself evidence of negligence on the part of anyone. Pilkington’s objection was that “the evidence is very clear that an unavoidable accident is not what could’ve occurred here.” AMI 603, however, is not an unavoidable accident instruction. AMI 604 was such an instruction, but it was withdrawn with the publication of AMI Civil 2d in 1974. AMI 603 is a correct statement, that the occurrence of an accident is not of itself evidence of negligence on the part of anyone. Since the jury found negligence on the part of Piikington, no prejudice could have resulted.

The remaining three arguments center upon the trial court’s denial of Pilkington’s motion for a new trial. In a memorandum opinion overruling the motion the trial judge found that the verdict was not influenced by emotion or prejudice, that the finding that Piikington was negligent was supported by the evidence, but that the finding that Riley was not negligent was not supported by the evidence, because Riley was negligent in leaving the roller on the highway when work was stopped. The judge concluded, however, that the jury’s error was one of degree and did not alone justify the granting of a new trial. Since he could not find as a matter of law that any verdict assigning 50% or more of the fault to Piikington would be against the preponderance of the evidence, the motion for a new trial was denied.

We find no flaw in the trial judge’s reasoning. It was his duty to set aside the verdict if, but only if, he found it to be against the clear preponderance of the evidence. Thudium v. Dickson, 218 Ark. 1, 235 S.W. 2d 53 (1950). In passing upon the motion for a new trial the judge necessarily had to weigh the testimony to determine its preponderance. He did not, however, attempt to fix the percentages of comparative negligence. He merely concluded that any verdict assigning 50% or more of the negligence to Pilkington would not have been against the preponderance of the evidence. In the circumstances, there being no counter-judgment for Riley against Pilkington to be taken into account, the trial judge was right in denying the motion for a new trial.

It is also argued that the trial judge should have addressed the issue of whether Pilkington’s negligence might have been less than the combined negligence of Riley, Winston, and Vincent. See Walton v. Tull, 234 Ark. 882, 356 S.W. 2d 20, 8 A.L.R. 3d 708 (1962). We think the judge did reach that issue by his willingness to sustain any verdict assigning at least 50% of the fault to Pilkington. Moreover, Pilkington’s trial brief in support of his motion for a new trial did not raise this issue, nor did the motion itself. It cannot be raised here for the first time. Finally, the appellant concedes that we need not consider his remaining point if we uphold the denial of a new trial.

Affirmed.


text:
    Ricky Gene FERRELL et al v. Frank Jack WHITTINGTON
    80-260
    610 S.W. 2d 572
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981

      Pickens, Boyce, McLarty & Watson, by:James A. McLarty, for appellants.

      Barrett, Wheatley, Smith & Deacon, for appellee.
   George Rose Smith, Justice.

In this action for personal injuries and property damage suffered by the appellants in a traffic collision, judgment for the defendant, Whittington, was entered pursuant to a jury verdict apportioning negligence in the ratio of 60% in Ferrell, one of the drivers, and 40% in Whittington, the other driver. A motion for a new trial, on the ground that the verdict was against the preponderance of the evidence, was denied. This appeal is solely from that denial and comes to this court as a tort action. Rule 29 (1) (o).

The case is argued as if the test on review were whether the trial court abused its discretion in denying the motion. True, that is the test when the trial judge grants such a motion, finding the verdict to be contrary to the preponderance of the evidence. Smith v. Villarreal, 253 Ark. 482, 486 S.W. 2d 671 (1972). But the trial judge is in a far better position than we to weigh the evidence, which he has heard; so if he denies the motion we determine only if the verdict is supported by substantial evidence. Brady v. City of Springdale, 246 Ark. 1103, 441 S.W. 2d 81 (1969). The grounds for a new trial were not changed by the Rules of Civil Procedure. Rule 59 and its Reporter’s Note 2.

The collision occurred at the intersection of U.S. Highway 64 and State Highway 5, in White county. Whittington was traveling south on Highway 5 and unquestionably stopped in obedience to a stop sign and a flashing red light. Such signals require a motorist to stop and indicate that the other street has the preferential right of way. Ark. Star. Ann. §§ 75-506 (1) and 75-645 (Repl. 1979). There was also a flashing yellow light facing traffic on Highway 64, requiring Ferrell, who was approaching from Whittington’s left, to proceed through the intersection with caution. § 75-506 (2).

Whittington and his passenger both testified that, after stopping, they looked to their left and saw nothing and looked to their right and saw a car some distance away. Whittington testified he had plenty of time to get .across and entered the intersection. He did not see Ferrell’s car until he heard the squealing of brakes. The front of Ferrell’s car struck the side of the Whittington car with such force that Ferrell’s car was “totaled.” Whittington testified that he had no way of knowing Ferrell’s speed, as he did not see the car, but he said he believed “if the speed had been within the range of the sign down the road, 40 miles per hour, that he could have stopped or gone back of me.” After the collision, which momentarily lifted the Whittington car on two wheels, the front of that car was six feet past the center of the intersection.

Ferrell, as the plaintiff, had the burden of proof, but his own testimony, even if accepted, did not negative the possibility of negligence on his part. He said he did not see a speed limit sign as he approached the intersection. A police officer had testified that the yellow caution light was visible from a distance of 500 feet or more. Ferrell said he was traveling 50 to 55 miles an hour when he saw the caution light and began to reduce his speed, but he made no attempt to say how far from the light he was when he saw it. He could not say to what speed he had slowed when he saw the other car begin to cross the highway. He did say, three times, that at that point he “got on” his brakes, but he could not avoid the collision. His car left only 66 feet of skid marks.

The appellant designated an abbreviated record, without the court’s instructions, but we must assume that the jury was correctly instructed. Under AMI 905 Whittington, after stopping, was required to yield the right of way to vehicles which were approaching so closely “as to constitute an immediate hazard.” If Whittington so yielded and had time to cross the highway (as he testified), the drivers of other vehicles were required to yield the right of way to him. AMI Civil 2d, 905 (1974); see also Brown v. Barker, 217 Ark. 700, 233 S.W. 2d 64 (1950); Casenote, 7 Ark. L. Rev. 413 (1953). Moreover, under AMI 907 the jury were presumably told that a driver cannot obtain the right of way by negligent conduct.

We do not review a jury’s apportionment of comparative negligence if fair-minded men might differ about it (which is essentially the same test as that of substantial evidence). McDonald v. Hickman, 252 Ark. 300, 478 S.W. 2d 753 (1972). Here the jury could reasonably have found that Ferrell was negligent in not seeing the 40-mile sign, that he did not reduce his speed sufficiently when he should have seen the caution light, that he did not apply his brakes at all until it was far too late, and that the “totaling” of his car indicated that he was still traveling at high speed when the collision occurred. On the other hand, Whittington could be found to have entered the intersection with some care after he had first stopped. There is ample substantial evidence to support the jury’s conclusion that Ferrell’s negligence was greater than Whittington’s.

Affirmed.


text:
    E. W. and Gertha STANDRIDGE v. CITY OF HOT SPRINGS
    80-294
    610 S.W. 2d 574
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981

      Donald Frazier, for appellants.

      Curtis L. Ridgway, Jr., City Atty., for appellee.
   George Rose Smith, Justice.

The appellants, husband and wife, owned urban property in Hot Springs, on which were situated cabins containing eleven residential rental units. The cabins were allowed to fall into such disrepair that the city, assertedly after having given lawful notice of its intentions, demolished the cabins as being substandard and unfit for human habitation. The appellants brought this action against the city to recover $40,000 as compensation “for the unlawful destruction of their property.”

At the close of all the proof the trial judge directed a verdict for the city on several grounds, one being that the plaintiffs had failed to prove the proper measure of their damages. The Court of Appeals certified the case to us under Rule 29 (1) (o). The only argument for reversal is that the court should not have directed a verdict. Inasmuch as we find that the plaintiffs failed to offer proper proof of their damages, we affirm the judgment.

About six months before the city demolished the cabins the appellants moved away from Hot Springs and stopped renting any of the units. Their sole proof of damages was Mrs. Standridge’s testimony that the cabins had formerly been rented for a net rental of about $207 a month. The proper measure of damages, however, is either the replacement value of the cabins or the difference in the value of the land before and after the demolition. Cy Carney Appliance Co. v. True, 226 Ark. 961, 295 S.W. 2d 768 (1956); Missouri Pac. R.R. v. Wood, 165 Ark. 240, 263 S.W. 964 (1924); Bush, Receiver v. Taylor, 130 Ark. 522, 197 S.W. 1172, 7 A.L.R. 262 (1917). That the plaintiffs proof of rental value was introduced without objection cannot be regarded as a waiver by the city of the proper measure of damages, because proof of rental value would arguably have been admissible as bearing upon the value of the cabins before their destruction.

The appellants do not argue that the trial judge was wrong about the correct measure of damages. Instead they argue, without citation of authority, that since Civil Procedure Rule 50 (a) requires that a motion for a directed verdict state the specific grounds therefor, the trial court “cannot add to defendant’s motion and give more than asked.” That argument is not valid. Our Rule is taken from Federal Civil Procedure Rule 50. The purpose of the sentence in question is to require that the specific ground for a directed verdict be brought to the trial court’s attention. Cortez v. Life Ins. Co. of North America, 408 F. 2d 500 (8th Cir., 1969). Specific grounds are also required so that judgment may not be entered upon a ground that might have been met with proof if the ground had been specified. Ryan Distributing Corp. v. Caley, 147 F. 2d 138 (3d Cir., 1945). Here the trial judge quite properly announced the basis for his ruling, which satisfied the purpose of Rule 50 (a). Had the appellants made the objection now urged, the city could readily have amended its motion to pinpoint the absence of proof of the proper measure of damages.

Affirmed.

Purtle, J., not participating


author: Frank Holt, Justice. Robert H. Dudley, Justice,

text:
    JACOB HARTZ SEED COMPANY, INC., An Arkansas Corporation v. E. R. COLEMAN
    80-180
    612 S.W. 2d 91
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981
    [Rehearing denied March 23, 1981.]

      Macom, Moorhead, Green & Henry, by: William M. Moorhead, for appellant.

      Thompson & Arnold, by: Blair Arnold, for appellee.
   Frank Holt, Justice.

Appellant, pursuant to a contract, bought certified soybeans from the appellee, producer. By this action appellant seeks reimbursement from appellee for the balance of money it paid appellee for the beans, plus costs, asserting the seed did not meet the required germination test. Appellee counterclaimed, asserting he suffered damages resulting from his resale of the seeds below the contract price. The court, sitting as a jury, found the soybeans were at all times in conformity with the terms of the contract and dismissed appellant’s claim for reimbursement of $9,-915.16 and awarded appellee $6,551.60 on its counterclaim. Appellant contends on appeal that the lower court erred in not finding a lack of acceptance under Chapter 2 of the Uniform Commercial Code, Ark. Stat. Ann. §§ 85-2-101 et seq. (Add. 1961), or in the alternative, in not finding that the doctrine of impracticability, Ark. Stat. Ann. § 85-2-615 (Add. 1961), applies. Appellee cross-appeals, contending the court erred in not awarding him an additional amount of $1,379-70 as damages for expenses he incurred in picking up and reselling the beans.

Appellant Hartz purchased the certified soybeans through a broker from the appellee in February, 1978, for delivery in February or March. Thereupon, Hartz resold the seed, before delivery, to a wholesale seed dealer in Georgia. The seed was picked up by this wholesale dealer on April 8 and May 5 at appellee’s warehouse in Cord, Arkansas. On May 15, after testing the seed, the Georgia Department of Agriculture reported the germination level (67%) to be below that certified (80%) by appellee according to Arkansas tests. It placed a stop sale order on the seed and notified appellee. Appellee requested another test by Georgia. On May 31, the test report indicated a germination level of 65%, or again too great a variance from that certified by appellee. Appellant notified appellee on June 1 it was cancelling the contract. On June 14 and 16 appellee picked up the beans in Georgia and on June 20 repaid appellant $20,250 of the purchase price. It appears the planting season for this type soybean ends between June 15 and July 10. Appellee had the seeds retested by the Arkansas State Plant Board, which reported on July 5, 1978, a germination of 81%. On July 21 the United States Department of Agriculture Seed Laboratory in Montgomery, Alabama, reported the Arkansas Samples tested 88% germination. On August 2 that agency reported the germination level of the Georgia sample at 76% or 78% or sufficient for the 80% label as certified by appellee. In a letter dated August 21, appellee requested appellant to take delivery of the soybeans by August 31, which was refused. The value of the beans, as seed beans, had steadily declined from the end of the planting season until they were of no value as such as of the time of the letter. Appellee sold the beans as oil beans.

Appellant argues that under the U.C.C. the goods were seasonably rejected. Appellee contends this was a fact question, and the trial judge’s finding is supported by the evidence and should be upheld. We are of the view that the trial court erred for the reason that the facts clearly preponderance there was no acceptance under the U.C.C. Under the Code, as adopted in Arkansas, the buyer may reject goods which fail in any respect to conform to the contract. Ark. Stat. Ann. § 85-2-601 (Add. 1961). Rejection must be within a reasonable time after delivery or tender, and the buyer must seasonably notify the seller. § 85-2-602. Acceptance occurs when the buyer has had a reasonable opportunity to inspect the goods and signifies to the seller that they are conforming or that he will take them in spite of their nonconformity. § 85-2-606. If the buyer fails to make an effective rejection, under § 85-2-602, after having had a reasonable opportunity to inspect the goods, this also constitutes acceptance under § 85-2-606. Under subsection (11) (c), if the buyer does any act inconsistent with the seller’s ownership, this may constitute acceptance also.

It is clear that, under the Code, delivery does not in and of itself constitute acceptance. In White and Summers, Uniform Commercial Code, p. 296 (2d 1980), acceptance as provided in § 85-2-606, supra, is discussed:

Acceptance is a term of art which must be sharply distinguished from a variety of other acts which the buyer might commit. Note first that whether the buyer has ‘accepted’ the goods is unrelated to the question whether title has passed from seller to buyer. Secondly, acceptance is only tangentially related to buyer’s possession of the goods, and in the usual case the buyer will have had possession of the goods for some time before he has ‘accepted’ them.

Furthermore, it is there pointed out that acts done without knowledge of defects, which the buyer could not have discovered, do not fall under § 85-2-606 (1) (c). Thus, appellee’s argument that the resale by appellant, the buyer, constituted an inconsistent act which establishes acceptance is not persuasive.

Here, the seller’s name was on the tag attached to the beans, and he was the one notified by Georgia of the test results. The buyer was unable to sell the beans in Georgia pursuant to the stop sale order which read, “No part of this lot of seed is to be sold or disposed of except as provided for in written release from this department.” As appellant points out, the Federal Seed Act, 7 U.S.C. §§ 1551, et seq., prohibits transporting seeds in interstate commerce that have a false label. § 1571 (d). At the point it found the beans to have tested below the germination labelled by appellee, the appellant buyer notified the appellee seller it was rejecting, which it had the right to do under the U.C.C. for goods that are nonconforming. Appellee, expressing disbelief in the Georgia test, reclaimed the goods and then refunded most of the purchase price to appellant. Before doing so, however, he requested a retest in Georgia, which caused a delay, while the time for planting was expiring.

In the circumstances, appellant buyer rejected the nonconforming goods within a reasonable time after discovery of the nonconformity, following the second test performed in Georgia at appellee’s request, and seasonably notified the seller. Therefore, the trial court’s finding that appellant is liable under the contract is against the clear preponderance of the evidence. It follows that appellant is entitled to reimbursement and appellee’s counterclaim should be dismissed. In doing so, therefore, it becomes unnecessary to discuss appellant’s other contentions as well as appellee’s cross-appeal.

Reversed and remanded for proceedings consistent with this opinion.

Reversed.

Adkisson, C.J., and Purtle and Dudley, JJ., dissent.

Robert H. Dudley, Justice,

dissenting. I respectfully dissent from the majority holding that the appellant rejected nonconforming goods.

The appellee, E. R. Coleman, warranted these beans to have a germination level of at least 80 percent. On January 17, 1978, tests by the Arkansas State Plant Board registered 81 percent germination. On February 14, 1978, the Arkansas State Plant Board found 82 percent germination.

Appellant, Jacob Hartz Seed Company, made the same warranty when it resold these beans to a Georgia planter.

On May 15, 1978, the Georgia authorities found a germination level of only 67 percent. On May 31, upon retesting in Georgia, only 65 percent germination was found.

The appellee then went to Georgia, picked up the beans and had them retested by the Arkansas State. Plant Board. On July 5, the Arkansas finding was 81 percent germination. On July 11, federal tests found 88 percent germination using the Arkansas sample. On August 2, federal tests of the Georgia samples showed a germination count of 77 percent.

The tests administered in Georgia reached an erroneous result, as the dead beans did not come back to life upon reentering Arkansas. One witness explained that probably this happened as a result of a seed borne pathogen, which died after a period in storage. The Georgia authorities could have determined if this was the situation by using a second type of test, but they did not do so.

The trial court found the Georgia tests were in error. In reviewing a finding of fact of the trial court this court should consider the evidence in the light most favorable to the appellee and affirm unless the trial court’s decision is clearly erroneous. Ark. R. Civ. P. 52; Taylor v. Richardson Const. Co., 266 Ark. 447, 585 S.W. 2d 934 (1979). There is ample evidence to sustain the trial court. Hence, the evidence should be viewed as reflecting that the beans always had at least 80 percent germination.

The appellee warranted 80 percent germination. There were no nonconforming beans delivered which would authorize rejection under the Commercial Code, Ark. Stat. Ann. § 85-2-601 (Add. 1961). The seller did not warrant that the plant board of Georgia would not make an error.

Neither of these parties is at fault and both acted in good faith. If there was frustration of a contract, it was frustration of the contract of resale between the appellant and the Georgia purchaser. The appellee sold no beans in Georgia and should not suffer the loss caused by the faulty Georgia test results.

I am authorized to state that Chief Justice Adkisson and Mr. Justice Purtle join in this dissent.


author: Frank Holt, Justice. Darrell Hickman, Justice,

text:
    Hall Caldwell RODGERS v. Oral Mae RODGERS
    80-203
    611 S.W. 2d 175
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981
    [Rehearing denied March 2, 1981.]

      John W. Hockett, for appellant.

      Frederick S. “Rick” Spencer, for appellee.
   Frank Holt, Justice.

Following a valid Texas divorce, appellee filed an action for partition of their real property in Arkansas which was held by her and appellant during their marriage as tenants by the entirety. After an evidentiary hearing, the chancellor found that the divorce obtained by appellee in Texas converted the tenancy by the entirety to a tenancy in common, the property is subject to partition, and should be sold and divided equally between them. Appellant urges that the court erred in finding that the Texas divorce decree altered the title of the real property from one of tenancy by the entirety to one of tenancy in common and in not finding he was entitled to claim the estate by the entirety as his homestead under Ark. Stat. Ann. § 34-1801 (Supp. 1979) since he occupies it.

The parties retired and moved to Arkansas from Texas in 1970 and built their home here. In January, 1975, appellee left appellant and returned to Texas to live with her married daughter. In December of that year she filed for divorce in Texas, which was granted in May, 1976. In the meantime appellee had filed an action in Arkansas to enforce a temporary order of the Texas court regarding the couple’s property. However, this action was dismissed in September, 1976, after the Texas divorce was granted. The chancellor in the Arkansas proceeding declined to give full faith and credit to the Texas decree, stating that the Texas court did not have in rem jurisdiction of the property and, therefore, the decree was unenforceable inasmuch as it attempted to divide the couple’s property. He did not reach the question whether the Arkansas court had jurisdiction to order sale of the property and stated another action needed to be filed. No appeal was taken from this decision. Subsequently, the present partition action was filed.

Appellant argues that a foreign divorce decree cannot affect title to land in Arkansas, citing Tolley v. Tolley, 210 Ark. 144, 194 S.W. 2d 687 (1946). We agree. Even so, a study of two enactments of our legislature clearly indicates the intent of that body that an estate by the entirety should be dissolved by an Arkansas court when the marital status is terminated by divorce. Prior to 1947 an estate by the entirety could not be dissolved by the court pursuant to a divorce decree. However, the legislature in that year passed Act No. 340, § 1, Ark. Stat. Ann. § 34-1215 (Repl. 1962), which provided that chancery courts within Arkansas had the power to dissolve estates by the entirety upon the rendition of a final decree of divorce and treat the parties as tenants in common in the division and partition of this property. The emergency clause stated the necessity of this enactment because of “injustices” resulting from the lack of power in the courts of equity to dissolve such estates upon dissolution of the marital status. That statute was amended in 1975, Ark. Stat. Ann. § 34-1215 (Supp. 1979), to provide that when any chancery court of Arkansas renders a final divorce decree, an estate by the entirety is automatically dissolved unless the court specifically provides otherwise.

Although we adhere to our long-standing rule that a foreign court’s decree cannot, ipso facto, affect title to land in Arkansas, here an Arkansas court held an evidentiary hearing on a partition action following a Texas divorce decrree which was stipulated by both parties to be valid. Evidence was adduced that the appellant’s and appellee’s marriage spanned a period of 25 or 26 years except for a brief time in which they were divorced and remarried. They had lived and worked together in Texas before their retirement in Arkansas in 1970. She is 72 and he is 71 years of age now. They have no children from their marriage. Since the divorce, he has remarried and has continued to occupy the property, claiming it as his homestead. He acknowledged that, when he decided to sell the property, he would give appellee one-half of the proceeds. However, he desired to continue living there indefinitely.

Under our present statutes, which reflect public policy, dissolution of estates by the entirety should be permitted to avoid “injustices.” Upon an Arkansas divorce the estate is automatically dissolved, unless the court provides otherwise, converting it into a tenancy in common in the division and partition of the property. The chancellor’s hearing in the partition action here, in effect, amounted to a relitigation in an Arkansas court of the equitable interests of the parties.

In the circumstances, the chancellor correctly held the estate by the entirety should be converted to a tenancy in common, the property sold, the proceeds divided equally, and the appellant is not entitled to claim the property as his homestead.

As contended by the appellee, she is entitled to a reasonable attorney’s fee, pursuant to Ark. Stat. Ann. § 34-1825 (Supp. 1979), from the proceeds of the sale of the property.

Affirmed.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. If I understand the majority’s decision it has created a new cause of action or at least a new remedy. I am not opposed to such ideas but they should become law only when there is no remedy and this court has the power to create one. Neither is the case here.

First, I should state the facts, as I see them. Mr. and Mrs. Rodgers were domiciled in Arkansas. They owned a home in Arkansas held as an estate by the entirety — married people holding title with the survivor to hold it exclusively.

Mrs. Rodgers moved to Texas and filed for divorce. The Texas court, as some courts occasionally do, tried to dispose of the property in Arkansas. Of course, that court had no jurisdiction or authority to do that. Evidently, everyone, except the Texas court, concedes that:

Mrs. Rodgers brought the Texas decree to Arkansas and tried to enforce it. It apparently divided the property equally, attempted to make the estate by the entirety one in common — an estate held by two or more people that does not change on death of any owner. The Arkansas court refused to recognize that the Texas court had a right to alter title to Arkansas land. Everyone agrees the Arkansas court was right, except, perhaps, the Texas court.

Then Mrs. Rodgers filed another lawsuit, the one before us, seeking to partition the land under Arkansas law. There is a provision in our law for such a procedure. Ark. Stat. Ann. § 34-1801 says partition may be sought by:

Any persons having any interest and desiring a division of land held . . . , under an estate by the entirety where said owners shall have been divorced either prior or subsequent to the passage of this Act, except where the property involved shall be a homestead and occupied by either of said divorced persons, . . .

It is my judgment the partition suit in this case was properly filed and partition should have been granted under this statute.

The majority seeks to use Ark. Stat. Ann. § 34-1215 as the basis of its decision. But that statute clearly provides that it applies only when an Arkansas court renders a divorce. It reads:

Hereafter when any Chancery Court in this State renders a final decree of divorce, any estate by the entirety or survivorship in real or personal property held by the parties to the divorce shall be automatically dissolved unless the Court order specifically provides otherwise, and in the division and partition of said property parties shall be treated as tenants in common [Emphasis added.]

What the majority is saying is, while Texas cannot change title to Arkansas land by changing an estate by the entirety to one in common, we can recognize that the estate is automatically dissolved by this statute by a Texas decree and order partition. The statute does not say that. The majority excuses itself by saying an Arkansas court has the parties before it and the issue is fairly litigated. What issue? Certainly not the divorce, it has been granted. Certainly not the equities between the parties, this is a partition suit. Since an Arkansas Court did not grant the divorce, the estate by the entirety was not automatically dissolved, a necessary finding before the majority’s conclusion can be sustained.

No doubt the reason the majority avoids finding this was a pure partition suit justified and sustainable under Arkansas law, is because of the case of Pascall v. Smith, 267 Ark. 66, 588 S.W. 2d 700 (1979). That case was one where the wife could not get her half of property held by the entirety. She did not seek her half until almost seven years after the divorce. The divorce decree did not dissolve the estate by the entirety and it was granted before § 34-1215 was passed. We reversed the case on its first appeal. Pascall v. Smith, 263 Ark. 428, 569 S.W. 2d 89 (1978). Her husband had sought to keep the property on a claim of adverse possession, a highly questionable way of obtaining title as between married people. On the next appeal, the wife had sought her half under the partition statute I have cited, Ark. Stat. Ann. § 34-1801. We held that the husband had a “homestead” in the property and it should not be partitioned. Pascall v. Smith, id. He had had the place for fifty-two years, been married for a short time and should not be dispossessed. The equities were on his side. We were perhaps wrong in applying the “homestead” principle in Pascall v. Smith, 267 Ark. 66, 588 S.W. 2d 700 (1979). At least we should have said what “homestead” means. In any event, it does not control our decision here.

The “homestead” exception in Ark. Stat. Ann. § 34-1801 does not mean merely that one person lives there; in my judgment it means homestead in the classical sense. A homestead is the house where the head of the family resides. It has come to mean an artificial estate devised to protect the possession and enjoyment of the owner against claims, so long as it is occupied. Black’s Law Dictionary 660 (5th ed. 1979).

In a divorce proceeding a woman not having an “interest” in the land as a tenant by the entirety could be granted a right to live in the home for life — as her one-third of the property as provided in Ark. Stat. Ann. § 34-1214. Biddle v. Biddle, 206 Ark. 623, 177 S.W. 2d 32 (1944). The same is true even if the parties own the land by the entirety. The court can place one of the parties in possession, that is, let one live there and not divide the property and order it sold. Yancey v. Yancey, 234 Ark. 1046, 356 S.W. 2d 649 (1962). It is my judgment that this is what “homestead” means in the statute, a setting aside of a right by a court.

That leads to an analysis of this case. There was no finding Mr. Rodgers had a “homestead” in the property. On review of the record I find insufficient evidence to find one. Mrs. Rodgers simply left. It had been their home, not his. There was no court order giving him possession. Therefore, he would not be justified in claiming a “homestead” exception to partition.

That conclusion leads back to the original question. Should partition be granted. It could, was ordered by the trial court, and can be sustained under Ark. Stat. Ann. § 34-1801. Such a finding will not necessitate creating a new cause of action, ignoring the clear language of Ark. Stat. Ann. § 34-1215 and, more importantly, will uphold the rule that a divorce in another state cannot change title to Arkansas land.

Mr. Rodgers argues as one of his points that the chancellor was wrong in ordering partition because he had a “homestead;” I disagree with this argument for the reasons stated. In any event Pascall v. Smith, id, is distinguishable. We review a chancery case de novo and do not remand it unless we cannot decide a question on the record. I could, as I have explained, and would affirm the decree for those reasons.


author: Frank Holt, Justice.

text:
    Larry Otis BUCY v. STATE of Arkansas
    CR 80-36
    610 S.W. 2d 576
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981

      Thomas A. Martin, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant was convicted by a jury of the manufacture of a controlled substance (marijuana) in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1979), receiving a sentence of 5 years imprisonment and a $5,000 fine.

Appellant argues that the court erred in allowing into evidence incriminating statements allegedly made by him when in custody without adequate Miranda warnings. Two officers testified that when appellant was taken into custody, he made statements to them which indicated his ownership of the marijuana. Appellant’s objections to the voluntariness and admissibility of his statements were overruled. According to the officers, one of them orally acquainted appellant with his Miranda rights when neither officer could find a “rights card,” and also appellant stated that he understood them. Appellant denied that he was accorded his rights nor was he aware of them. The presumption is that an in-custody statement is involuntary, and the burden is upon the state to show otherwise. Hileman v. State, 259 Ark. 567, 535 S.W. 2d 56 (1976). Suffice it to say it appears undisputed that the officers could not recall giving all of the basic and fundamental rights required by Miranda v. Arizona, 384 U.S. 436 (1966). Miranda requires that all these fundamental rights be given in clear and unequivocal terms. This is not demonstrated here; therefore, we hold that the incriminating statements made by the appellant were inadmissible and constituted prejudicial error.

Appellant also asserts that the court should have held a Denno hearing outside the presence of the jury to determine the voluntariness of the statements. Ark. Stat. Ann. § 43-2105 (Repl. 1977) reads in pertinent part:

. . . [T]he determination of fact concerning the admissibility of a confession shall be made by the court when the issue is raised by the defendant; that the trial court shall hear the evidence concerning the admissibility and the voluntariness of the confession out of the presence of the jury and it shall be the court’s duty before admitting said confession into evidence to determine by a preponderance of the evidence that the same has been made voluntarily.

To the same effect is Estep v. State, 244 Ark. 843, 427 S.W. 2d 535 (1968), which is in accord with Jackson v. Denno, 378 U.S. 368 (1964).

On the record before us, we are of the view that the issue of voluntariness was sufficiently raised at trial in a manner that required a hearing outside the presence of the jury on the voluntariness of the statements.

We do not discuss appellant’s other contentions for reversal since they are not likely to reoccur.

Reversed and remanded.


author: Darrell Hickman, Justice. John I. Purtle, Justice,

text:
    Charles Joseph POE v. Vernon HOUSEWRIGHT, Commissioner, Arkansas Department of Corrections
    80-191
    601 S.W. 2d 577
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981

      Matthew T. Horan and Carl W. Behner, for appellant.

      Steve Clark, Atty. Gen., by: Jack W. Dickerson, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

The question here is one of statutory construction. The statutes in question relate to eligibility for parole by inmates.

Charles Joseph Poe was convicted of burglary and grand larceny in 1976 and is serving twenty-one years on those charges. He claims that the Department of Correction determined wrongfully that he is not eligible for parole.

He sued the Department of Correction in Jefferson County Circuit Court, seeking a writ of mandamus. Both parties filed for summary judgment and relied on the same law. If Poe’s interpretation of the law is correct he is entitled to be considered for parole after serving one-third of his time; if the Department of Correction is correct, he will not be eligible until he has served one-half of his time. The circuit court judge held for the Department and the same issue is now before us. We affirm the judgment.

Poe committed his crimes on December 29, 1975. He pled guilty and was sentenced on February 13, 1976. His sentencing took place two days after the General Assembly passed Act 1161 which related to eligibility for parole of individuals serving a term for years. Under Act 1161 an individual in Poe’s situation had to serve one-half of his time before being eligible for parole.

The next year the General Assembly passed Act 93 of 1977. The purpose of this Act was to “Establish the parole eligibility for persons convicted of committing a criminal offense after April 1, 1977.” However, Act 93 provided in Section 2 (A) that:

Persons who committed felonies prior to April 1, 1977, and were convicted and incarcerated for the same, shall be eligible for release on parole in accordance with the parole eligibility law in effect at the time such crime was committed. [Emphasis added.]

It is this section that Poe argues changed his status. Before he committed the crime on December 29, 1975, before Act 1161 was passed, he claims he is eligible for parole under the provisions of Act 94 of 1969. This would allow him to be eligible for parole after serving only one-third of his time. If Section 2(A) controls, he is right and that is not disputed.

In summary, everyone concedes Poe was legally sentenced under a law that requires him to serve one-half his time, but if Section 2(A) is read literally, Poe’s status was changed. Did the General Assembly intend that? This does not appear to be the intention of the General Assembly when you study both acts in their entirety, construe them together, and reconcile them if possible. Larey v. Wolfe, 242 Ark. 715, 416 S.W. 2d 266 (1967). This was not the intention if the statutes are to be given a common sense construction. Dozier v. Ragsdale, 186 Ark. 654, 55 S.W. 2d 779 (1932). Poe’s position might prevail if repeal by implication were a favorite of the law, but it is not. Shay v. Welch, 209 Ark. 519, 191 S.W. 2d 253 (1945).

Act 93 of 1977 was intended to apply to persons convicted after April 1, 1977. That was its purpose, as stated in the Title:

AN ACT to Establish the Parole Eligibility for Persons Convicted of Committing a Criminal Offense After April 1, 1977-, and for Other Purposes. [Emphasis added.]

The meat of the Act is contained in Section 2(B).

Persons who commit felonies on and after April 1, 1977, and shall be convicted and incarcerated for the same, shall be eligible for release on parole as follows:

It goes on to provide for terms which are more severe than those of previous acts for those persons who have prior convictions. The emergency clause says that the present laws do not adequately deter crime and that the habitual criminal should have his parole eligibility bear a direct relationship to the number of times he was convicted.

With those provisions in mind, we must determine whether the General Assembly intended to repeal Act 1161 as it was applied to Poe. He was legally sentenced under that law and knew he would have to serve one-half his time. Dio the General Assembly intend, in enacting a harsher law, for inmates already sentenced and serving to receive a lesser punishment?

That intent can only be reached by an approach using blinders, reading literally Section 2(A) and ignoring everything else. That approach can be used only if it is found that the acts cannot be reconciled. If the General Assembly intended to change the parole eligibility for those already convicted and serving a sentence, it would undoubtedly have said so.

Usually the parole laws applied are the ones that are in effect when a person is sentenced. Certainly a law could not be passed which would limit one’s right to parole after he had been sentenced since this would violate the ex post facto provision of the constitution. Davis v. Mabry, 266 Ark. 487, 585 S.W. 2d 949 (1979). But that is not the case with Poe. He is not prejudiced by our decision.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I dissent because I feel the majority has applied a criminal law ex post facto and i rendered an erroneous construction of another statute. When appellant committed the crime in 1975, the criminal statute or rules relating to parole was that he would have to serve one third of his sentence before becoming eligible for parole. The day before appellant was sentenced the General Assembly changed the law to require inmates in appellant’s classification to serve one half of their sentence before being eligible for parole.

Acts of 1977, No. 93, Section 2 (A), states:

Persons who committed felonies prior to April 1, 1977, and were convicted and incarcerated for the same, shall be eligible for release on parole in accordance with the parole eligibility law in effect at the time such crime was committed.

An act of the General Assembly should be construed from the plain language used therein. Act 93 most most clearly states that persons who committed felonies prior to April 1, 1977, and were convicted and incarcerated would be eligible for parole in accordance with the law in effect at the time the crime was committed. Clearly appellant fell under the rule requiring him to serve one third of his time before being eligible for parole because such was the law at the time he committed the offense.

Act 1161 was passed after the appellant committed the crime for which he was incarcerated. It is true he was sentenced at a time when the parole eligibility was one half of a sentence in contrast to the one third which was in effect at the time of the commission of the crime. To me the more strict statute is clearly in violation of Art. 2 § 17 of the Constitution of Arkansas. I also think it is contrary to the general holding in David v. Mabry, 266 Ark. 487, 585 S.W. 2d 949 (1979). Therefore, I would reverse the trial court and hold appellant eligible for parole when he had served one third of his sentence.


author: Darrell Hickman.

text:
    William N. EVANS, Jr. v. STATE of Arkansas
    CR 80-87
    610 S.W. 2d 577
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981

      Dave Wisdom Harrod, J.D., for appellant.

      Steve Clark, Atty. Gen., by: Mary Davies Scott, Asst. Atty. Gen., for appellee.
   Darrell Hickman.

William N. Evans, Jr., was convicted of rape and incest in the Cleburne County Circuit Court.

On appeal, his counsel raises only one issue which is that the Supreme Court should order a new trial because defendant was insane at the time of the trial. It is contended that this information was unavailable at trial.

The record is void regarding the issue. It contains no reference to the evidence or any request for post judgment relief on the issue. The appellant’s counsel attempts to present the question by a brief to this court. He refers to a letter from a psychiatrist who found, after the trial, that Evans was insane. The letter is not in the record. There is no motion for a new trial.

Apparently an attempt was made to supplement the record but it was denied without prejudice to appellant’s proceeding under Rules of Crim. Proc., Rule 37. Unless evidence is presented to a trial court and is properly in the record we cannot review it. This court does not review any evidence that is not in the record. Weston v. State, 265 Ark. 58, 576 S.W. 2d 705 (1979); Bridger v. State, 264 Ark. 789, 575 S.W. 2d 154 (1979). The judgment must be affirmed.

Affirmed.


author: John I. Purtle, Justice.

text:
    Mark Dewayne LINGO v. STATE of Arkansas
    CR 80-193
    610 S.W. 2d 580
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981

      E. Alvin Schay, State'Appellate Defender, by: Ray Hartenstein, Chief Deputy Defender, for appellant.

      Steve Clark, Atty. Gen., by: Arnold M.Jochums, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

The appellant was tried before a jury on January 8, 1980, for the offense of theft of property in violation of Ark. Stat. Ann. § 41-2203 (Repl. 1977). The jury returned a verdict of guilty and set his sentence at two years with the recommendation that one year be suspended. The court then allowed the state to present evidence of two prior felony convictions over the strenuous objection of the appellant’s counsel. The court sentenced the appellant to two years with no part to be suspended.

On appeal the appellant argues that the court improperly sentenced him to serve two years rather than submitting the issue to the jury. We disagree with the appellant for reasons which will be subsequently stated. Therefore, the court was not in error in sentencing appellant to serve two years without any part being suspended.

The facts are not in dispute. We are concerned only with the question of whether the court properly applied the law in this particular factual situation.

There are three statutes involved in the argument presented in this appeal. Ark. Stat. Ann. § 41-803 (Repl. 1977) provides that a defendant convicted of any offense other than capital murder may be sentenced to páy a fine as authorized by Ark. Stat. Ann. § 41-1101 et seq. (Repl. 1977), or to imprisonment as authorized by Ark. Stat. Ann. § 41-901 et seq. (Repl. 1977), or Ark. Stat. Ann. § 41-1001 et seq. (Repl. 1977). Since appellant has relied to a great extent on two statutes, they will be set out below:

Ark. Stat. Ann. § 41-1005 (Repl. 1977). The following procedure shall govern trials at which a sentence to an extended term of imprisonment is sought pursuant to Section 1001 (§ 41-1001):
(1) The jury shall first hear all evidence relevant to the felony with which defendant is currently charged and shall retire to reach a verdict of guilty or innocence on this charge.
(2) If the defendant is found guilty of the felony, the same jury shall sit again and hear evidence of the defendant’s previous felony convictions or previous findings of the defendant’s guilt of felonies. Defendant shall have the right to hear and controvert such evidence and to offer evidence in his support.
(3) The jury shall retire again, and if it finds that the defendant has previously been convicted of or found guilty of two (2) or more felonies, the jury shall consider the previous convictions or findings of guilty in determining the sentence to be imposed for the felony of which the defendant currently stands convicted.

The other statute mentioned by appellant is Ark. Stat. Ann. § 41-1201 (1) (Repl. 1977):

(1) If a defendant pleads or is found guilty of an offense other than capital murder, murder in the first degree, murder in the second degree, first degree rape, kidnapping or aggravated robbery, the court may suspend imposition of sentence or place defendant on probation. The court shall not suspend imposition of sentence or place a defendant on probation if it is determined, pursuant to Section 1005 (§ 41-1005), that the defendant has previously been convicted of two (2) or more felonies. In making a determination as to suspension or probation, the court shall consider whether:

(a) there is undue risk that during the period of a suspension or probation the defendant will commit another offense; or

(b) the defendant is in need of correctional treatment that can be provided most effectively by his commitment to an institution; or
(c) suspension or probation will discount the seriousness of the defendant’s offense; or
# * #

Appellant agrees that a jury’s recommendation of a suspended sentence is advisory only and whether a recommended suspension should be followed is discretionary with the trial court. Tucker v. State, 248 Ark. 979, 455 S.W. 2d 888 (1970). Appellant also correctly argues that the legislature has determined that a defendant has the right to a jury’s determination of the factual issue as to the existence of prior felonies committed by him before such prior felonies can be used to enhance his punishment pursuant to Ark. Stat. Ann. § 41-1001 (Repl. 1977). Up to this point we are in agreement with appellant’s argument. However, he continues to argue that Ark. Stat. Ann. § 41-1001 requires a jury determination of the existence of the felonies before the court may place him on probation or suspend imposition of sentence. He argues that this statute is controlling over the language set out in Ark. Stat. Ann. § 41-803 (4) and Ark. Stat. Ann. § 41-1201 (1). We do not agree with this interpretation of these statutes.

Appellant was not charged under the habitual criminal act. Neither was he sentenced pursuant to such act. Therefore, this case could well be decided without even mentioning Ark. Stat. Ann. § 41-1001 through 41-1005.

The appellant is certainly correct in arguing that the jury must consider the factual situation but such is the case only when the accused is charged as a habitual criminal. In the case before us appellant was not charged as a habitual criminal. He was charged only with theft of property pursuant to Ark. Stat. Ann. § 41-2203. The sentence for such coviction would be from two to ten years. The jury set the sentence at the minimum and recommended that one year be suspended. This is where Ark. Stat. Ann. § 41-1201 comes into play. This statute makes it mandatory that the trial court consider whether there is undue risk that the defendant will commit another offense or whether time in the Department of Correction would be beneficial in his case or whether suspension would discount the seriousness of the offense. There are other matters to be considered by the court, but we deem it unnecessary to cite them. Acting pursuant to this statute, the court properly considered the other criminal acts.

During the sentencing phase of the trial, which was conducted by the court, the jury remained seated and listened to all the testimony. Although it was not necessary for the court to keep the jury there, it was no doubt the court’s idea to utilize this method in explaining why the court was not following their recommendation. The court had the statutory right to consider the conduct of the defendant, including prior convictions, in deciding whether to suspend any of the sentence. Gardner v. State, 263 Ark. 739, 569 S.W. 2d 74 (1978), cert. denied 440 U.S. 911.

The appellant has relied upon Clinkscale v. State, 269 Ark. 324, 602 S.W. 2d 618 (1980); Cotton v. State, 256 Ark. 527, 508 S.W. 2d 738 (1974); and several other cases to support the proposition that the court committed prejudicial error by considering the prior felony convictions which had not been mentioned until the close of the trial. In Clinkscale the appellant was charged as a habitual offender. In Cotton the court simply added seven years to the sentence the jury had imposed. Perhaps the appellant relies most strongly on the case of Wilburn v. State, 253 Ark. 608, 487 S.W. 2d 600 (1972). Wilburn was charged and sentenced as a third offender pursuant to the Arkansas statute in effect at the time, which was Ark. Stat. Ann. § 43-2328 (Supp. 1971). The real question in Wilburn was the weight given by the jury to prior convictions. We do not think Wilburn is proper authority for the argument presented in this case. Therefore, we hold that the trial court acted in a manner consistent with the governing statutes and did not commit error.

Affirmed.


author: Robert H. Dudley, Justice.

text:
    Freddie C. MOSS v. SOUTHERN EXCAVATION, INC.
    80-279
    611 S.W. 2d 178
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981
    [Rehearing denied March 2, 1981.]

      Williams & Williams, by: Janice O. Williams, and Tackett, Moore, Dowd & Harrelson, by: Boyd Tackett, for appellant.

      Barber, McCaskill, Amsler, Jones & Hale, for appellee.
   Robert H. Dudley, Justice.

Freddie C. Moss, the appellant, while employed by the appellee, suffered a compensable injury that eventually resulted in the loss of his senses of taste and smell. He filed a claim under the Arkansas Workers’ Compensation Act and was paid medical expenses and temporary total disability benefits. The administrative law judge denied benefits for permanent disability as the loss of the senses of taste and smell is neither a scheduled injury as set out in Ark. Stat. Ann. § 81-1313 (c) (Repl. 1976) nor one which diminshed appellant’s earning capacity. There was no appeal from that decision.

Appellant then filed a common law tort suit against the appellee asking $500,000 damages for the loss of the senses of taste and smell. The trial court granted summary judgment on the basis that appellant’s injury was compensable under the Workers’ Compensation Act and the remedies provided are exclusive. Ark. Stat. Ann. § 81-1304. This appeal is from the summary judgment.

The gist of appellant’s argument is that for every wrong or injury there must be a remedy. He contends that he has suffered a permanent injury and has received no remedy. Hence, he should be allowed to proceed in circuit court.

Appellant admits that the Workers’ Compensation Act is an exclusive remedy for injuries which are covered and correctly contends that the act does not cover all injuries suffered by employees on the job. For an example, an employee has recovered against an employer in a slander action, Braman v. Walthall, 215 Ark. 582, 225 S.W. 2d 342 (1949), and in an assault action, Heskett v. Fisher Laundry and Cleaners, 217 Ark. 350, 230 S.W. 2d 28 (1950).

However, these cases allow recoveries for wrongs or injuries suffered outside the scope of the act. In the present case the injury is within the act, and a basis for compensation was found to exist. The appellant recovered temporary total disability benefits, and his medical expenses were paid. He did not receive all the additional benefits to which he feels entitled, but he has been provided a remedy, and that remedy is exclusive under our act. Ark. Stat. An. § 83-1304.

If this exclusivity could be evaded, the results would be extreme. For example, the act affords no benefit for pain or suffering. Yet these elements of damages are recoverable in a common law tort action. Under appellant’s theory, an injured employee could maintain a common law tort action against his employer as a result of a compensable injury because no benefits are paid for pain and suffering. We do not find the language of the act subject to such an interpretation. The law has never favored the splitting of causes of action.

Affirmed.


author: Steele Hays, Justice.

text:
    Tommy HARVEY and VARI-TECH COMPANY, A Corporation v. EASTMAN KODAK COMPANY, A Corporation
    80-218
    610 S.W. 2d 582
    Supreme Court of Arkansas
    Opinion delivered January 26, 1981

      Thaxton & Hout and Laser, Sharp, Haley, Young & Huckabay, for appellants.

      H. David Blair, for appellee.
   Steele Hays, Justice.

Appellants, Tommy Harvey and Vari-Tech Company, bring this appeal urging that the court below erred in dismissing the direct complaint of the plaintiff, Harvey, against the third-party defendant, Eastman Kodak, under Arkansas Rules of Civil Procedure, Rule 12(b)(6) for “failure to state facts upon which relief can be granted.” The appellants also urge that the trial court erred in dismissing the third-party complaint of the defendant, Vari-Tech, against Kodak under the doctrine of forum non conveniens. We find no error in the court’s dismissal of the two complaints and, therefore, affirm the decision.

Procedurally, the case below is rather complex, but here we will discuss only those portions at issue in this appeal. On or about June 11, 1979, Tommy Harvey hired another party to perform surveys of lands in Jackson County, Arkansas, in anticipation of constructing levees necessary for the production of rice. Harvey’s suit alleged that the work was done improperly due to the defective condition of the surveying equipment used, which was manufactured by the defendant, Vari-Tech, causing damage to the plaintiff in the form of lost profits and expenses.

Vari-Tech filed a third-party complaint against Kodak alleging that any defective condition of the surveying equipment was caused by the negligence of Kodak in supplying defective optical elements glue used in the equipment. In response, Kodak filed a motion to dismiss under the doctrine of forum non conveniens, both Kodak and Vari-Tech being foreign corporations.

Subsequently, Harvey filed a direct complaint against Kodak, the allegations of which are more thoroughly discussed below. Kodak responded to the direct complaint of Harvey with a motion to dismiss for “failure to state facts upon which relief can be granted.” Rule 12(b)(6), A.R.C.P. The trial court granted both motions.

As to the direct complaint of Harvey against Kodak, we agree with the trial court that the complaint is insufficient and may be properly dismissed under Rule 12(b)(6).

The direct complaint of Harvey against Kodak alleges that Kodak “manufactured a glue” for the optical equipment used, “that due to a failure of said glue” lands were surveyed in a negligent manner by another party. And, “that due to the negligence” of Kodak, plaintiff suffered the damages enumerated. The allegations of the complaint are merely conclusions on a point of law; they do not state facts upon which relief can be granted. Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” (Emphasis supplied.).

Since Rule 12(b)(6) tests the sufficiency of the pleadings, it is necessary to read it in conjunction with Rule 8, which deals with the contents of the pleading. Rule 8 provides:

A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross-claim, or third-party claim, shall contain ... (2) a statement in ordinary and concise language of facts showing that the pleader is entitled to relief, . . . (Emphasis supplied.)

This is a significant departure from the Federal Rules of Civil Procedure, on which the Arkansas rules are based. Unlike our own rule, Rule 12(b)(6) of the Federal Rules provides for dismissal of a complaint for “failure to state a claim upon which relief can be granted.” (Emphasis supplied.) And Rule 8 of the F.R.C.P. provides:

A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim or third-party claim, shall contain ... (2) a short and plain statement of the claiming showing that the pleader is entitled ro relief . . . (Emphasis supplied.)

These two rules establish for the federal courts what is commonly known as “notice pleading.” See, Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957).

Arkansas has not adopted this view of pleading. In drafting the new Rules of Civil Procedure, the Committee offered language identical to that contained in the federal rules. However, this court deliberately rejected the proposed language in favor of the language contained in the rules as now written. See, Cox and Newbern, The New Civil Procedure: The Court that Came in from the Code, 33 Ark. Law Rev. 1 (1979). Since Harvey’s complaint against Kodak failed to comply with Rule 8’s requirement of “a statement in ordinary and concise language of facts showing that the pleader is entitled to relief,” the complaint was properly dismissed under Rule 12(b)(6) for “failure to state facts upon which relief can be granted.” However, because this is a products liability case we point out that the deficiency of the direct complaint of Harvey against Eastman Kodak lies entirely in its failure to meet the requirements of Rule 8 with respect to the allegations of negligence, the only cause of action asserted. The pleading does not purport to sound in strict liability or warranty, which are not in any way dependent upon negligence. Fruman and Friedman, Products Liability, Vol. 3A, Ch. 16, Pleading and Practice #46.02[3], p. 74. Thus, whether Harvey could have properly stated a cause of action against Eastman Kodak under those theories of liability is not before us.

Under this same point, Harvey argues that even if the direct complaint against Kodak is insufficient, any defect is cured by the third-party complaint of Vari-Tech against Kodak, upon which Harvey is entitled to rely. In support of this theory, he cites us to Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W. 2d 1 (1980). We cannot agree with this argument. In Larson, we held that the Statute of Limitations was tolled by the filing of the third-party complaint against the third-party defendant so that the later filing of a direct complaint by the original plaintiff against the third-party defendant was not barred by limitations under the Uniform Contribution Among Joint Tortfeasors Act. Ark. Stat. Ann. §§ 34-1001, et seq. (Repl. 1962). In Larson, we did not go so far as to hold that defects in the pleadings themselves on the direct complaint may be cured by the allegations contained in the third-party complaint. Indeed, we know of no authority for such a proposition.

As to Kodak’s motion to dismiss the third-party complaint of Vari-Tech against Kodak under the doctrine of forum non conveniens, we find no reversible error in the granting of the motion. It should be noted that none of the parties question the actual sufficiency of the third-party complaint. Nor does any party question the jurisdiction of the trial court over the parties or the cause of action. What is left for this court to decide, then, is whether the trial court could properly refuse to entertain the complaint though it had jurisdiction to do so. Since we have concluded that the court below correctly dismissed the direct complaint of Harvey against Kodak, what remains is the third-party complaint of Vari-Tech against Kodak, both nonresident corporations. The third-party complaint alleges with particularly strict liability by Kodak, breach of warranties for the optical glue, and that Kodak was negligent in manufacture of the glue. The complaint alleges that Vari-Tech is due indemnity from Kodak on any liability to Harvey. Neither the alleged negligence nor breach of warranty of Kodak to Vari-Tech occurred within this state.

As early as Grovey v. Washington, 196 Ark. 839, 303 S.W. 2d 578 (1938), this court recognized the doctrine oí forum non conveniens. In Grovey, we said:

But in actions between nonresidents based on a cause of action arising outside the state, the courts are not obliged to entertain jurisdiction. They may and usually do so on principles of comity, but not as a matter of strict right. In other words, it lies within the discretion of the courts whether or not they will entertain such a transitory action.
Grovey, above, at 704.

Although we are no longer bound by classifying actions in terms of being “transitory,” we think the decision in Grovey sound. In Running v. Southwest Freight Lines, Inc., 227 Ark. 839, 303 S.W. 2d 578 (1957), we expressed the considerations the trial court should weigh in applying the doctrine of forum non conveniens to be those of convenience to each party in obtaining documents or witnesses, the expense involved to each party, the condition of the trial court’s docket “and any other facts or circumstances affecting a just determination.” As we have held in Grovey, the application of the doctrine oíforum non conveniens lies within the sound discretion of the trial court in actions between nonresidents. We will not disturb the decision of the trial court on appeal except upon a showing of abuse of that discretion.

In the present case, Vari-Tech is a resident of Michigan and Kodak is a resident of New York. We are inclined to agree that the courts of either of those two states would be a more convenient forum for adjudication of the claims between these two parties, being ancillary to that of Harvey. Certainly, we find no abuse of discretion in the trial court’s dismissal of the complaint under the doctrine of forum non conveniens.

We must therefore affirm.


text:
    Simon ZUNAMON, CHICAGO MILL AND LUMBER COMPANY, Billy SCALES, Alton CHAMBLISS, and THE MELINDA HUNTING CLUB v. Enoch JONES, Eugene DOBSON, Tom MORELAND, T. R. MORELAND, Ike BOWMAN, Billy FERGUSON, and H. C. NEELY
    CA 80-339
    610 S.W. 2d 286
    Court of Appeals of Arkansas
    Opinion delivered January 28, 1981 Recalled
    Reinstated February 25, 1981

      W. H. Daggett and L. David Stubbs, for appellants.

      Smith, Smith & Hubbell, by: Billy J. Hubbell, for appellees.
   Tom Glaze, Judge.

This is an appeal from a Chancery Court decree wherein it wa held that the appellees and the general public had acquired an easement by prescription over a roadway through open and unenclosed timberlands owned by the appellant, Simon Zunamon. These lands are operated by appellant, Chicago Mill and Lumber Company, in furtherance of its timber interests in Desha County. Chicago Mill had leased a part of this land (which involved the roadway in question) to appellant, Melinda Bar Hunting Club. In March, 1979, the Melinda Cliib members caused a cable to be placed across the roadway, blocking public access to it. The appellees filed suit seeking an injunction to remove the cable, contending that the road was a public road acquired by prescription. Zunamon and Chicago Mill defended the suit, claiming that they gave blanket permission for the public to use the road, and that the permissive use of the roadway prevented the creation of an easement by prescription. From an adverse decision, Zunamon and Chicago Mill contend on appeal that the appellees did not present sufficient proof that an easement by prescription had been created. Moreover, they also appeal from the lower court’s decision which granted public prescription rights on land other than the roadway owned by Zunamon.

The controlling law of the case before us is stated in Fullenwider v. Kitchens, 23 Ark. 442, 266 S.W. 2d 281 (1954). The court in Fulenwider, after it reviewed the leading .prescription right cases in Arkansas, stated the law as follows:

A consideration of the many opinions of this court regarding the acquisition of a right-of-way over lands makes it clear, in our opinion, that no real conflict exists. All our opinions are in harmony on one point, viz.: Where there is usage of a passageway over land, whether it began by permission or otherwise, if that usage continues openly for seven years after the landowner has actual knowledge that the usage is adverse to this interest or where the usage continues for seven years after the facts and circumstances of the prior usage are such that the landowner would be presumed to know the usage was adverse, then such usage ripens into an absolute right. (Emphasis supplied.)

Zunamon and Chicago Mill argue, and we believe correctly, that the original prescription in favor of a permissive use cannot be rebutted solely by evidence showing the road was used by the public over an extended period of time. However, the appellants’ argument also seems to include that some person or persons were required to communicate to Zunamon or Chicago Mill that they intended to use the roadway adversely. This is not true. The length of time and circumstances under which the roadway was opened and used is sufficient to establish an adverse use. McGill v. Miller, 172 Ark. 390, 288 S.W. 932 (1926). Again, the court in Fullenwider made it clear what kind of knowledge was required to show an adverse claim wherein it held:

In our opinion . . . the weight of the testimony supports the finding of the Chancellor that appellee and her predecessors in title used road “B” for more than seven years after appellants and their predecessors in title knew or should have known that the road was being used adversely. [Emphasis supplied.]

From the foregoing, we must now decide if the appellees presented sufficient evidence to show the public openly and continuously used the roadway in question for seven years or more, and if the facts arid circumstances surrounding the usage were such that Zunamon and Chicago Mill knew or should have known it was adverse. We conclude the evidence before the trial court was sufficient to support its decision that the road became a public easement by prescription.

There was testimony that the road was in existence as early as 1913 or 1914 and was used by people coming out from a steamboat landing located on the Arkansas River. Appellee, Dobson, testified that this road was travelled by wagons, buggies and automobiles as long as sixty-six years ago. There was evidence offered by several witnesses that the roadway had been maintained by private citizens as well as the county, which included grading and gravelling the road. There were maps introduced as exhibits which clearly show a discernable road which spans over a one and one-quarter mile area and is approximately thirty feet in width. In the case of Burdess v. Arkansas Power & Light, 268 Ark. 147, 597 S.W. 2d 828 (1980), cited and relied upon by appellants, the court denied a public easement existed in part because there was no discernable roadway and the passageway sought was no more than an unimproved timber trail. The facts before us are clearly distinguishable from those in Burdess. Finally, witnesses called by appellants and appellees at this action agreed that the roadway was used by log hauling concerns, fishermen, hunters and campers.

The facts and circumstances shown by the foregoing evidence and testimony alone is sufficient to establish the appellees’ right to a public easement over the roadway in question. Additionally, however, it is the testimony of the appellants’ witnesses which makes our decision conclusive on the issue before us. Oscar Locher, age 69, and manager of Chicago Mill since 1929, testified he was aware of private logging concerns and other people using the road for fifty years, and there was never an attempt to prevent people from using it until March, 1979. Mr. Wilkins and Mr. Beatty, members of the Melinda Bar Hunting Club, testified they were familiar with the road for thirty-two years and seventeen years, respectively, and they, too, were aware of the public’s use of the road. Both Wilkins and Beatty agreed that their Club had placed two “Keep Out” signs on trees on each side of the road for a five year period, but again no action was taken until 1979 to bar the public from using the road. In summary, although several representatives of the appellants knew and were aware of the public’s open and continued use of the roadway for at least fifty years, the appellants never denied access to anyone. The long length of time that the road was used by many people is, in itself, pertinent evidence of adverse use. Weigel v. Cooper, 245 Ark. 912, 436 S.W. 2d 85 (1969).

The appellants’ second point raised on appeal is that the Chancellor erred in granting public prescription rights to a thirty foot strip of land from the road to the river, two hundred yards south of the Missouri-Pacific Railroad bridge. Much of the evidence we have already reviewed above involves testimony of witnesses who related that the road was used by the public to get to the Arkansas River.

Consistent with our decision that the one and one-quarter mile long, thirty foot wide roadway is a public easement, we also hold that the evidence in the record is sufficient to support the Chancellor’s grant of the additional thirty foot passageway from the road to the Arkansas River. Appellants direct our attention to the case of Clarke v. Montgomery County, 268 Ark. 181, 597 S.W. 2d 96 (Ark. App. 1980), and argue that there is no authority for extending public prescription rights to a parking area or “landing” for the entry of boats into the Arkansas River. Our Court, in Clarke, held only that prescription easement rights are limited to public thoroughfares used for travel purposes, and there was no authority for extending public prescription rights to a parking area used sporadically by members of the public. In the case at bar, the Chancellor granted a passageway from the road to the Arkansas River, air of which was consistent with evidence which was before the trial court. This passageway was merely an extension of the prescriptive roadway used by the public to gain access to the river. Such use was established for travel and other purposes as early as 1913.

In accordance with the conclusions we reached above, the trial court’s decree must be affirmed.

Affirmed.

Corbin, J., not participating.

ERRATA 271 ARKANSAS REPORTS at 791 Detach at perforation, moisten the back, and paste over the first two lines of the first full paragraph on page 791 of Zunamon v. Jones: The controlling law of the case before us is stated in Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954).

       Appellees’ complaint was first filed against the Hunting Club as the Melindy Hunting Club. The Melinda Bar Hunting Club filed a Motion to Dismiss and the appellees amended their complaint to reflect the correct name of the Club.

      ERRATA 271 ARKANSAS REPORTS at 791 Detach at perforation, moisten the back, and paste over the first two lines of the first full paragraph on page 791 of Zunamon v. Jones: The controlling law of the case before us is stated in Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W.2d 281 (1954).