author: John I. Purtle, Justice.

text:
    W. M. BASHLIN COMPANY v. James SMITH and Janet SMITH and ARKANSAS POWER & LIGHT COMPANY
    82-24
    643 S.W.2d 526
    Supreme Court of Arkansas
    Opinion delivered November 22, 1982
    [Rehearing denied January 31, 1983.]

      Wildman, Harrold, Allen, Dixon & McDonnell, by: James W. McDonnell, Jr., J. Richard Buchignani and Thomas J. Walsh, Jr.; and Butler, Hicky <b Hicky, Ltd., by: Philip Hicky, II, for appellant.

      Gary Eubanks ir Associates, by: Gary L. Eubanks and Hugh F. Spinks, for appellees James Smith and Janet Smith.

      House, Holmes & Jewell, P.A., by: Philip E. Dixon, for appellee Arkansas Power & Light Company.

      Barber, McCaskill, Amsler, Jones ir Hale, for appellee J. L. Matthews Company.
   John I. Purtle, Justice.

James Smith was a serviceman employed by Arkansas Power and Light Company (AP&L) on May 19, 1977. On that day he was working 30 feet off the ground on a pole, wearing a lineman’s belt manufactured by W. M. Bashlin Company. The belt broke while Smith was engaged in a hazardous practice commonly known as double D-ringing. He fell to the ground injuring his spine and paralyzing him from the waist down. A St. Francis County j ury returned a verdict finding that James Smith and his wife had suffered damages in the amount of $1,000,000. The jury apportioned the negligence at 80% to Bashlin and 20% to Smith. The distributor of the safety belt, J. L. Matthews Co., Inc., was a defendant along with Bashlin but the jury apportioned 0% responsibility to Matthews. Bashlin cross-complained against AP&L, Smith’s employer, and Eddie Wells, Smith’s supervisor. Before trial the court granted both AP&L and Wells a summary judgment based upon the exclusive remedy of the Workers’ Compensation Act. The verdict was by interrogatories. One interrogatory found Bashlin responsible for 80% of Smith’s damages. One interrogatory found the Matthews company was not negligent. Another interrogatory found that Bashlin did not supply the safety belt in “a defective condition which rendered it unreasonably dangerous . . . [which] condition was a proximate cause of the occurrence.” Still another interrogatory found that Bashlin was guilty of negligence which was the proximate cause of the occurrence. Finally, an interrogatory found that James Smith assumed the risk of the occurrence. The jury apportioned the responsibility for the occurrence and the resulting inj uries and damages at 80% to Bashlin, 20% to Smith and 0% to J. L. Matthews Co. The trial court reserved a ruling on appellant’s motion seeking credit against the judgment for $200,000 which AP&L had paid to Smith under the workers’ compensation agreement, In view of our ruling this issue is now moot.

Bashlin appeals from the dismissal of AP&L as a third party defendant, the judgment against Bashlin, and the denial of its post-trial motion for credit on its j udgment. We uphold the judgment against Bashlin.

The appellant sets forth six arguments for reversal which are as follows: (I) the finding by the jury that Bashlin did not manufacture the belt in a defective condition rendered the judgment against them improper; (II) the finding by the jury that the injured employee assumed the risk bars his recovery of any sums from the appellant; (III) AP&L’s negligence constituted an independent intervening cause of the accident which bars recovery; (IV) the trial court erred in refusing to instruct the jury that any amount awarded the plaintiff would not be subject to income tax; (V) the trial court erred in dismissing appellant’s third party complaint against AP&L for indemnity; and, (VI) the verdict was excessive.

This is a products liability suit against the manufacturer (Bashlin) and the distributor (Matthews) of a lineman’s belt which was manufactured in 1964. Bashlin filed a third party complaint against Smith’s employer, AP&L. The facts are not in material dispute. Bashlin manufactured the belt in 1964 and sometime in, or prior to, 1966, AP&L purchased the belt from Matthews and provided it to Smith. The belt was made primarily of leather but included nylon reinforcing on the saddle portion of the belt. There were D-rings on each side of the body belt. A separate safety belt snapped into the D-rings and looped around a light pole or some other object to be climbed. As described above, the weight of the user would be on the back side or saddle of the body belt, between the D-rings, and upon the looped safety belt. In this position, a lineman could climb up a pole using gaffs on his shoes with the belts to prevent him from falling. The portion of the belt between the D-rings, on the front side where the belt is buckled to adjust to the size of the wearer, has a smaller leather strip with holes for the buckle which is commonly called the “tongue.”

Double D-ringing was a practice used by the injured employee and by a lot of other people. The practice consists of snapping both ends of the safety belt into a single D-ring on the body belt. Double D-ringing is used for the purpose of providing the lineman with a longer reach. It was recognized that double D-ringing was not generally considered safe and Smith had acknowledged it was not a safe practice although he continued to utilize it. Double D-ringing was not considered safe because it placed the user in a position where his footing was more unstable, sometimes having only one foot against a pole thereby creating a situation where he was more apt to fall. It also increased the force of one’s weight against the tongue portion of the body belt.

The employer, AP&L, had warned Smith that double D-ringing was dangerous. However, they recognized that this was no defense to them under the Workers’ Compensation Act. Accordingly, they made a settlement with Smith, who is now a paraplegic, for the sum of $200,000. AP&L waived any right of subrogation against the manufacturer and the distributor. The trial court ruled, as a matter of law, that AP&L and Smith’s supervisor were protected from liability by the exclusive remedy of workers’ compensation.

Although it will lengthen the opinion, it is necessary to a proper understanding of the pertinent interrogatories that they be set out in full:

INTERROGATORY NO. 1:
Do you find from a preponderance of the evidence that W. M. Bashlin Company was guilty of negligence which was a proximate cause of the occurrence?
ANSWER: Yes or No Yes
INTERROGATORY NO. 2:
Do you find from a preponderance of the evidence that the lineman’s body belt involved in the occurrence was supplied by W. M. Bashlin Company in a defective condition which rendered it unreasonably dangerous and that the defective condition was a proximate cause of the occurrence?
ANSWER: Yes or No No
INTERROGATORY NO. 3:
Do you find from a preponderance of the evidence that the lineman’s body belt involved in the occurrence was sold by J. L. Matthews Company, Inc., in a defective condition which rendered it unreasonably dangerous and that the defective condition was a proximate cause of the occurrence?
ANSWER: Yes or No No
INTERROGATORY NO. 4:
Do you find from a preponderance of the evidence that James Smith was guilty of fault which was a proximate cause of the occurrence?
ANSWER: Yes or No No
INTERROGATORY NO. 5:
Do you find from a preponderance of the evidence that James Smith assumed the risk of the occurrence?
ANSWER: Yes or No Yes.
INTERROGATORY NO. 6:
Using 100% to represent the total responsibility for the occurrence and any injuries or damages resulting from it, apportion the responsibility among the parties whom you find to be responsible:
W. M. Bashlin Company 80%
J. L. Matthews Company, Inc. 0%
James Smith 20%
TOTAL 100%
INTERROGATORY NO. 7:
State the amount of any damages which you find from a preponderance of the evidence were sustained by James Smith as a result of the occurrence.
ANSWER: $960,000.00
INTERROGATORY NO. 8:
State the amount of any damages which you find from a preponderance of the evidence were sustained by Janet Smith as a result of the occurrence.
ANSWER: $40,000.00

I.

THE FINDING BY THE JURY THAT BASHLIN DID NOT MANUFACTURE THE BELT IN A DEFECTIVE CONDITION RENDERED THE JUDGMENT AGAINST THEM IMPROPER.

The first point argued by appellant is that the jury’s specific finding that the product (the body belt) was not supplied or sold in a defective condition which proximately caused the accident is a bar to holding the manufacturer liable under a negligence theory. The jury was given instruction No. 18 (AMI 1012) which states that the appellees asserted two grounds for recovery: first, that a defective lineman’s body belt was manufactured or sold by W. M. Bashlin Company; and, second, that there was negligence on the part of W. M. Bashlin Company. The court then instructed the jury on the two separate causes of action. The finding by the jury that Bashlin did not supply the lineman’s body belt in a defective condition does not preclude the finding that Bashlin was negligent in some other respect. The jury may have found that Bashlin was negligent in failing to warn the plaintiff on the use of the belt, in failing to warn about double D-ringing, or that the manufacturer became aware that the belt tongue should not have been constructed of leather alone and should therefore have recalled the product. While it is mere speculation as to what the jury might have based a finding of negligence on, it is obvious from the interrogatories that they did make a specific finding of liability against the appellee. We have recognized that more than one theory of liability may properly be used in matters involving products liability. AMI 1012 provides first for a finding of a defect in the product and second that there was negligence on the part of the supplier. The plaintiff need not bear the burden of proving both theories of liability, it is enough that he prove either. Sterner v. U. S. Plywood-Champion Paper, Inc., 519 F.2d 1352 (8th Cir. 1975). We are aware that the holding in Lindsay v. McDonnell-Douglas Aircraft Corp., 460 F.2d 631 (8th Cir. 1972), might seem contrary, however the present case is distinguishable on its facts. The holding in Lindsay is to the effect that there can be no manufacturer negligence relating to product design which did not exist as a defect when the manufacturer parted with possession. The court there recognized that an exception might arise where there exists a subsequent duty to warn or to recall. As previously stated, the jury had sufficient facts from which to find that Bashlin breached this duty. If it be considered that Sterner and Lindsay hold two opposite theories, we think Sterner is correct because it is the later pronouncement on the subject by the same court. We do not hold that a manufacturer must produce a product which will last forever. However, instruction No. 25, which was given to the jury in this case, states: “Anticipated life of a product is the period over which the product may reasonably be expected to be useful to the user as determined by the jury.” It is obvious the jury determined that the reasonably expected useful life of this belt was greater than that to which it had been put. Therefore, there was no error in allowing the jury to reach a verdict for appellees Smith using either of two theories presented to them in interrogatories.

II.

THE FINDING BY THE JURY THAT THE INJURED EMPLOYEE ASSUMED THE RISK BARS HIS RECOVERY OF ANY SUMS FROM THE APPELLANT.

Appellant contends that a jury finding that Smith assumed the risk of the occurrence would bar Smith’s recovery against Bashlin. It must be remembered that the trial court instructed the jury that they must consider each interrogatory as a separate verdict. At first glance it might appear that the interrogatory finding that Bashlin did not supply the belt in a defective condition and the finding in another interrogatory that Smith assumed the risk cannot be reconciled with interrogatory No. 6 which apportioned Bashlin 80% and Smith 20% responsible for the occurrence. The finding of the jury was to the effect that James Smith assumed 20% of the responsibility for the risk of the occurrence. We have previously held that the assumption of risk was a complete bar to a recovery as either a matter of law or fact. Capps v. McCarley & Co., 260 Ark. 839, 544 S.W.2d 850 (1976); McDonald v. Hickman, 252 Ark. 300, 478 S.W.2d 753 (1972). AMI 612 defines assumption of risk as considered by the jury. The comment following AMI 612 [Revised] explains: “Conduct which constitutes assumption of risk is now, like negligence, embraced within the concept of ‘fault’ and therefore it is to be compared with any fault on the part of those parties from whom recovery is sought.’’ Ark. Stat. Ann. § 27-1764 (Repl. 1979) states:

In all actions for damages for personal injuries or wrongful death or injury to property in which recovery is predicated upon fault, liability shall be determined by comparing the fault chargeable to a claiming party with the fault chargeable to the party or parties from whom the claiming party seeks to recover damages.

It is clear that the legislature intended assumption of the risk to be viewed as an element of comparative fault. See Ark. Stat. Ann. § 27-1763. We do not agree with the appellant’s argument that Forrest City Machine Works v. Aderhold, 273 Ark. 33, 616 S.W.2d 720 (1981), or Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980), hold that assumption of risk is a complete bar. It would be a complete bar if the injured party assumed 50% or more of the risk of the occurrence. It must be considered by the jury as an element of fault.

III.

AP&L’S NEGLIGENCE CONSTITUTED AN INDEPENDENT INTERVENING CAUSE OF THE ACCIDENT WHICH BARS RECOVERY.

The matter of intervening causes which bar an action against an original tortfeasor has been considered by this court many times. Appellant urges that we hold in accordance with the argument in the case of Cowart, Adm’x. v. Jones, 250 Ark. 881, 467 S.W.2d 710 (1971). The facts are somewhat analogous in the present case and the Cowart case but there is a distinct difference. In Cowart this court upheld the trial court’s finding that an independent intervening cause barred the recovery of an employee who was fatally injured while working around a construction crane which was in a defective condition. The trial court in the Cowart case directed a verdict against the plaintiff at the conclusion of the trial. We affirmed the decision and stated that the crane had been obtained by decedent’s employer in a dangerous condition in that it did not have the necessary safety devices. The essence of the holding in Cowart was that when the employer obtained possession of the crane it was a dangerous instrumentality and the lack of safety devices was noticeable and obvious. When the employer continued to use the instrument with the full knowledge of its dangerous aspect, then that constituted an independent intervening cause. In affirming the trial court’s judgment in the Cowart case we quoted with approval the language of the trial court:

The most important and persuasive reason why this court is directing a verdict for the defendant Casey Jones is that there can be no question, I rule as a matter of law that representatives in high capacity in Bechtel Corporation admittedly knew that this crane was received from whatever source without the safety devices. That they used it for a period of time. * * * But in any event, charged with that knowledge, in my opinion the law is clear that there was a very definite intervening cause that we cannot attribute to Casey Jones.

We have attempted to define intervening negligence which bars recovery of the original wrongdoer. In the case of Gatlin v. Cooper Tire & Rubber Co., 252 Ark. 839, 481 S.W.2d 338 (1972), we held that negligence of a third party is no defense unless it is the sole proximate cause of the injury and/or damages sustained and a plaintiff may recover from the original defendant if the negligence of such defendant was a contributing factor. Appellant also relies upon our holding in Larson Machine, Inc. v. Wallace, supra. In Larson we upheld the doctrine that an independent intervening cause excludes liability for the earlier negligent acts of another party. In fact, we held that there was an independent intervening cause which shielded the manufacturer from the acts of the dealer who had rented the fertilizer spreader to the injured party. We find a substantial distinction between the facts in Larson and those in the present case. In Larson the machine left the factory with a shield to protect the power take-off shaft. The shield was intended to prevent injuries such as the one which subsequently occurred. The dealer who obtained the machine and rented it out did so with the full knowledge that the protecting shield had been removed and the power take-off gears were exposed. This was an obvious defect and dangerous condition which was known by the dealer who rented it out and the obviously negligent action on the part of the dealer was held to be an independent intervening cause. In the recent opinion of Moody Equipment & Supply Co. v. Union National Bank, 273 Ark. 319, 619 S.W.2d 637 (1981), we dealt with whether the negligence of the original defendant could be considered when the facts conclusively established negligence on the part of the person who obtained the equipment from the original defendant. This was a case where a construction crane was rented in a defective condition. We considered the matter under our strict liability statute, Ark. Stat. Ann. § 85-2-318.2 (Supp. 1979). In Moody the trial court set aside a verdict which had released the original seller of the crane from liability. In affirming that action we adhered to the theory that the crane was sold in a defective condition which was reasonably foreseeable in the ordinary course of the intended use of the crane. We stated that the later acts of negligence by third persons became concurrent rather than superseding causes of action. The defects on the crane in the Moody case were less obvious than in Cowart, Adm’x. v. Jones, supra. In any event, in Moody the holding was that there was concurring negligence on the part of the seller and the user of the equipment.

The appellant’s allegations against AP&L in the third party complaint were primarily AP&L failed to properly instruct in safety rules and failed to inspect the equipment or failed to enforce safety rules. None of these acts, if proven, would constitute the obvious defect type negligence which we held in some cases barred a recovery against the original actor. The most that can be said for the third party complaint against AP&L is that it alleged concurrent causes of action. In any event, the matter was presented to the jury as the court’s instruction No. 11 (AMI 503) as follows:

W. M. Bashlin Company and J. L. Matthews Company, Inc. contend and have the burden of proving that following any act or omission on their part, an event intervened which in itself caused any damage completely independent of their conduct. If you so find, then their act or omission was not a proximate cause of any damage.

The foregoing instruction placed the matter of independent intervening cause squarely before the jury. This is all that appellant could expect under the facts of this case. It may be said that the general rule is that the intervening act or omission of a third person is not a superseding cause when the original actor’s negligent conduct is a substantial factor in bringing about the injury. If the intervening act is a normal response to the situation created by the original actor’s conduct, then there is no intervening cause. When the negligent acts of the parties are concurrent, there is no intervening cause which bars recovery against the original actor. Larson Machine, Inc. v. Wallace, supra.

IV.

THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY THAT ANY AMOUNT AWARDED THE PLAINTIFF WOULD NOT BE SUBJECT TO INCOME TAX.

The appellant questions the correctness of the court’s refusal to give certain instructions which were proffered by the appellant as numbers 35 through 41. None of these are contained in the AMI book. Without discussing each one in detail we state that we agree with the appellees’ argument that the proffered instructions were generally covered by the instructions which were given by the court. Proffered instruction No. 38 states:

The mere fact that a person is injured or that a product failed while it is being used is not sufficient to show that the product was defective and unreasonably dangerous. Furthermore, the mere fact that a climbing belt failed is not sufficient, standing alone, to establish that it was defective or unreasonablv dangerous. Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 289 (5th Cir. 1975).

The court gave instruction No. 13 (AMI 603) which reads as follows:

The fact that an injury occurred is not, of itself, evidence of negligence on the part of anyone.

It is apparent that proffered instruction No. 38 was simply an enlargement of AMI 603. We think the trial court was correct in stating the matter was covered by other instructions and rejecting the one presented by appellant. Except for proffered instruction No. 41, the other rejected instructions seemed to fit within the framework of the above-stated reasoning. In any event, appellant did not abstract the instructions given which they thought needed further clarification for the benefit of the jury. It is the duty of the judge to instruct the jury and each party to the proceeding has the right to have the jury instructed upon the law of the case with clarity and in such a manner as to leave no grounds for misrepresentation or mistake. Beevers, Adm’x. v. Miller, 242 Ark. 541, 414 S.W.2d 603 (1967). It is possible that one or more of the proffered instructions could have been of some assistance to the jury but certainly it has not been shown that the jury was not presented the issues in a clear manner. We have reviewed the instructions, abstracted by appellees, and cannot say that the matters considered in the proffered instructions were not covered by those given by the court. Instruction No. 41 regarding the tax consequences of a monetary judgment is the exception because there was no effort by the plaintiffs’ counsel or the court to present an instruction on the taxability of an award. Neither is there an instruction on this matter among the instructions set forth in the AMI Book of Civil Instructions. We have not been referred to any case in Arkansas which upholds the presentation of the instruction here in question. The rejection of this type of instruction would preserve the collateral source rule and prevent the matter of the cost of collection to the claiming party from being considered by the jury. At this time we are comfortable in holding that an instruction to the effect that a personal injury award is untaxable to the receiving party is not proper.

V.

THE TRIAL COURT ERRED IN DISMISSING APPELLANT’S THIRD PARTY COMPLAINT AGAINST AP&L FOR INDEMNITY.

This argument deals with the allegation that the court erred in dismissing AP&L as a third party defendant. The third party complaint alleged that AP&L was the principal negligent party and that appellant’s activities were of a passive nature. The third party complaint alleged that the relationship between AP&L and Bashlin was such that it was the duty of AP&L to indemnify Bashlin. However, the specific allegations were entirely in the nature of a tort and generally included the same allegations as Smith made against Bashlin. The trial court dismissed AP&L from the suit before the trial commenced. Appellant relies heavily upon the case of Oaklawn Jockey Club, Inc. v. Pickens-Bond, Construction Co., 251 Ark. 1100, 477 S.W.2d 477 (1972). The forerunner of Oaklawn, and a case which must be read alongside it, is C & L Rural Cooperative Corp. v. Kincaid, 221 Ark. 450, 256 S.W.2d 337 (1953). C & L was based upon an expressed indemnity agreement wherein the contractor (employer) agreed to hold the owner harmless in case of damages caused by their negligence. The following language from C & L clearly shows the action was not one between joint tortfeasors but rather it was based upon the theory of indemnity: The Cir L opinion is somewhat confusing because it stated that it relied upon Baltimore Transit Co. v. State, 183 Md. 674, 39 A.2d 858 (1944), which interpreted and applied the provisions of Maryland’s Workmen’s Compensation Law and their Uniform Tortfeasors Act. The Baltimore Transit case held that a third party defendant could not bring in the employer for contribution on the liability of the original defendant. The holding was clearly to the effect that the compensation law limited the employer’s liability as well as the employee’s recovery. The court held that “ . . . the employer should not be held liable indirectly in an amount that could not be recovered directly.” However, the subject of joint tortfeasors was not before the court. It still does not appear that Arkansas has considered the question of whether an employer might be liable to a manufacturer or supplier upon a joint tortfeasor theory. Therefore, we must examine the authorities in other jurisdictions to determine if such holdings are so persuasive as to cause us to follow them.

The present suit by appellants is based not on tort, but an indemnity contract that C & L had with Delta (contractor), which contract, as indicated, provided: “The Contractor (Delta) shall hold the owner (C & L) harmless from any and all claim for inj uries to persons or for damages to property happening by reason of any negligence on the part of the Contractor or any of the Contractor’s agents or employees during the control by the Contractor of the Project or any part thereof.”

The matter of contribution or indemnity from a negligent employer to a third party tortfeasor is a complex one. There has evolved a theory known as the Murray-Dawson Rule. This rule was founded upon the reasoning set forth in Murray v. United States, 405 F.2d 1361 (D.C. Cir. 1968), and Dawson v. Contractors Transport Corp., 467 F.2d 727 (D.C. Cir. 1972). The Murray-Dawson Rule clearly modifies the former exclusive remedy of workers’ compensation which prevented a third party from receiving contribution or indemnity from a joint tortfeasor employer. This rule allows a credit to the original tortfeasor for the amount that it would have been entitled to receive had the employer been held jointly or severally liable with the third party. At common law there was no contribution among joint tortfeasors. Arkansas has adopted a system which allows apportionment of the damages between multiple tortfeasors. The Uniform Contribution Among Tortfeasors Act, Ark. Stat. Ann. § 34-1001 et seq. (Repl. 1962), defines “joint tortfeasors” to mean two or more persons jointly or severally liable in tort for the same injury to person or property. Contribution is available to a tortfeasor regardless of whether the claim has been reduced to judgment so long as the settlement or judgment with the injured person does not extinguish the liability of the other joint tortfeasors. Ark. Stat. Ann. § 34-1002. There is no question but that the Workers’ Compensation Act is the exclusive remedy between an employer and an employee with certain exceptions which we will not set out and which are not involved in this case. However, the act does not specifically state that the employer is immune from a claim by a third party. This question was not decided in C & L Rural Cooperative Corp. v. Kincaid, supra, or Oaklawn Jockey Club, Inc. v. Pickens-Bond Construction Co., supra.

Another rule or exception between contributing joint tortfeasors is known as the Pennsylvania Rule. This rule allows a third party to recover limited contribution from a concurrently negligent employer up to the amount of workers’ compensation benefits paid to the employee or his representative. This rule had its genesis in the case of Maio v. Fahs, 339 Pa. 180, 14 A.2d 105 (1950). However, we will not discuss this rule or the Murray-Dawson Rule further in view of our holding in the present case. Both are exceptions to the rule which holds workers’ compensation liability is exclusive as to all claims against the employer.

The Uniform Contribution Among Tortfeasors Act and the Workers’ Compensation Act are both involved in this action. One of them must give because both cannot prevail in the matter before us. Therefore, we hold that it is in the interest of public policy and in keeping with the intent of the General Assembly to give the compensation act priority as an exclusive remedy. In matters involving workers’ compensation benefits the employer shall be immune from third party tortfeasors’ claims.

VI.

Appellant argues that the verdict was excessive. We do not agree. The employee has already paid out about $72,000 in medical expenses and approximately $39,000 in home improvements to accommodate his paraplegic condition. In determining whether a jury verdict is excessive the question is whether it shocks the conscience of the court or demonstrates that jurors were motivated by passion or prejudice. Evidence presented to the jury is given its highest probative force in favor of the verdict. If there is substantial evidence to sustain the verdict, it will not be disturbed. Moses v. Kirtley, 256 Ark. 721, 510 S.W.2d 281 (1974). There are no two cases which are identical in all respects. Each one must stand upon its own facts. Clark County Lumber Co. v. Collins, 249 Ark. 465, 459 S.W.2d 800 (1970).

The trial court is affirmed as to the judgment.

Affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    FIRST ELECTRIC COOPERATIVE CORPORATION v. Leon Carroll PINSON and Russell WILHITE
    82-161
    642 S.W.2d 301
    Supreme Court of Arkansas
    Opinion delivered November 22, 1982

      William H. Sutton of Friday, Eldredge & Clark, for appellant.

      Phillip B. Farris of Highsmith, Gregg, Hart & Farris, for appellee Pinson.

      H. David Blair, for appellee Wilhite.
   John I. Purtle, Justice.

This is a tort action from the Circuit Court of Independence County, Arkansas, wherein appellant was found liable to the estate and heirs of three young men who were electrocuted when a boom on a vehicle contacted an overhead power line. The appellant argues six points for reversal. We reach only the first point because we find no evidence of negligence sufficient to support the verdicts. Therefore, we reverse and dismiss the cases.

On July 4, 1980, Russ Wilhite, d/b/a Art Sign Company, sent his son, Lew Wilhite, to erect a sign at Homer’s Bait Shop. Before arriving at the site where the sign was to be erected Lew picked up his friends, Ricky and David Pinson. The pole which was to support the sign was transported to the scene on a truck driven by Lew Wilhite. The truck had a bed-mounted boom with a connected cable used in raising or lowering materials. The evidence indicates that Lew Wilhite was on the back of the truck operating the boom and the two Pinson boys were on the ground when the boom came in contact with overhead power lines, owned and operated by the appellant. When the boom contacted the power line, it served as a conductor. The electricity flowed through the boom and into the bodies of the Pinson boys, who were alongside the truck apparently holding the pole which was to be erected on the site.

Wilhite, upon discovering that electricity was flowing through the boom into the bodies of his friends, commenced yelling and jumped off of the bed of the truck. He attempted to enter the truck, but upon touching the door of the truck he, too, became a conduit for the electricity. It is obvious that Wilhite intended to drive the truck away from the power lines but was unable to do so. The Pinson boys and Wilhite were all electrocuted on the spot.

The parents of each of these young men, all of whom were minors, filed suit for damages. The Pinsons originally sued Wilhite who filed a third complaint against First Electric Cooperative Corporation, the appellant. Subsequently, the Pinsons joined in the complaint against the appellant. The claims against Wilhite were settled prior to trial. The two cases against appellant were consolidated. The jury returned verdicts against the appellant in favor of each of the plaintiffs’ heirs and estates: in the amount of $120,000 for Lew Wilhite’s heirs and estate; $101,000 for Ricky Pinson’s heirs and estate; and, $101,000 for David Pinson’s heirs and estate.

The only evidence of negligence presented against the appellant was the failure to set a reclosure on the power line at 140 amps instead of the 200 amps which was used at the time of the occurrence. So far as the record is concerned, the appellant was not alleged to be negligent in any other respect. The evidence indicates that a reclosure works in a similar manner as how an average person considers a circuit breaker to work. If the fault or drag had reached 200 amps, the reclosure would have opened within one second of such contact. This would cut off the electricity flowing at that particular point. It would cut off for one third of a second, then come back on and stay on, or reclosed, 10 seconds before tripping again. It would then remain off for 15 seconds and come back on for 10 seconds. After tripping the third time it would remain locked out until it was physically reconnected at the power station. There is some dispute as to whether or not the pole the boys were holding was touching the ground. If it were, it would have created enough “fault” on the line to cause the reclosures to cut off the electricity for a fraction of a second. There is no dispute that Lew Wilhite was on the back of the truck, where he was insulated from the electricity, for more than a second after the boom contacted the power line. The electricity caused the truck to become so charged that flames were reaching from the truck to the ground which caused the tires on the vehicle to catch fire and blow out. When this occurred, the rims on the truck came in contact with the ground and at that time the boom separated from the power line to which it had been attracted.

The appellees contend that it was the duty of the appellant to keep the reclosure on the lowest possible setting allowing appellant to continue providing service to its customers. It is undisputed that the appellant’s ability to deliver electricity would not have been impeded at a setting of 140 amps. Neither is it disputed that the actual setting was at 200 amps. If the pole had contact with the ground while the boom was still in contact with the live overhead current, the “fault” created would exceed 140 amps. Testimony indicated such a connection could generate up to 1,000 amps. It appears reasonable that the “fault” would have, no doubt, exceeded the 200 amp setting. In fact, when the wheels of the vehicle contacted the ground, the boom and the power line separated allowing the power line to swing some eight inches back away from the boom. It seems logical that the reclosure activated at that time and caused a brief interruption of the current which allowed the boom and the wire to disengage. The testimony indicated that a human body would place at the most about 71/2 amps on the power line. Therefore, if all three of the decedents had contacted the power line simultaneously, directly or indirectly, the fault or amps would not be more than 22 1/2. This is far below the level it would have taken to open the reclosure if it had been set at 140. It is possible that the reclosure did not disconnect until the drain was well in excess of 200 amps. It does not make any difference how much “fault” it would have taken to trigger the reclosure because we find as a matter of law that the acts of the appellant in keeping the 200 amp reclosure in service were neither negligence, nor the proximate cause of this most unfortunate and regrettable occurrence.

Foreseeability is a necessary ingredient of actionable negligence in Arkansas. Dollins v. Hartford Accident & Indemnity Co., 252 Ark. 13, 477 S.W.2d 179 (1972); North Little Rock Transportation Co. v. Finkbeiner, 243 Ark. 596, 420 S.W.2d 874 (1967); Collier v. Citizens Coach Co., 231 Ark. 489, 330 S.W.2d 74 (1959); and Hill v. Wilson, 216 Ark. 179, 224 S.W.2d 797 (1949). We have said: “Conduct becomes negligent only as it gives rise to appreciable risk of injury to others ...” Dollins. Also, we held that there is no negligence in not guarding against a danger which there is no reason to anticipate. North Little Rock Transportation Co. In the case of Durfee v. Dorr, 123 Ark. 542, 186 S.W. 62 (1916), we held that the keeper of a hospital “.. . is liable for damages if he fails to perform some duty which he owes to the patient and the patient is injured as a result of this failure.” We have a similar question before us in the present case. The question presently to be considered is whether the appellant had a duty to keep the reclosure switch at the lowest possible setting. There is a duty on the part of one in charge of a dangerous instrumentality to protect against danger if he knew or should have known that the situation was dangerous. North Little Rock Transportation Co. However, the evidence indicated that the higher setting of the reclosure in no manner increased the risk of harm to the decedents. There was no foreseeability that a boom would contact the power lines which were more than twenty feet above the ground.

The evidence in this case simply does not support the jury’s verdicts. Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof. Glidwell, Admr. v. Arkhola Sand & Gravel Co., 212 Ark. 838, 208 S.W.2d 4 (1948). We stated in Kapp v. Sullivan Chevrolet Co., 234 Ark. 395, 353 S.W.2d 5 (1962), that judgments based on speculation and conjecture will not be allowed to stand. We believe the jury verdicts in this case were based upon conjecture and speculation. Therefore the cases are reversed and dismissed.

Reversed and dismissed.


author: Robert H. Dudley, Justice.

text:
    Kenneth Ray WHITE v. STATE of Arkansas
    CR 82-106
    642 S.W.2d 304
    Supreme Court of Arkansas
    Opinion delivered November 22, 1982

      Claude S. Hawkins, Jr., for appellant.

      Steve Clark, Atty. Gen., by: Arnold M. Jochums, Asst. Atty. Gen., for appellee.
   Robert H. Dudley, Justice.

On November 14, 1976, appellant pleaded guilty to first degree murder and was sentenced to life imprisonment. On July 13, 1981, over four and one-half years later, he filed a handwritten petition for post-conviction relief pursuant to A.R.Cr.P. Rule 37. In it he alleged that his conviction should be set aside because (1) he was under age at the time of the crime, (2) he received misleading advice by his attorney, and (3) he was under the influence of drugs when the crime was committed. The trial court appointed an attorney to represent appellant and scheduled a hearing. However, immediately before the hearing was to begin, the trial court asked the appellant if he was contending that he was too young to be tried or convicted of a crime at the time of the murder. Appellant responded negatively. The trial court then reexamined the pleadings and ruled that appellant was not entitled to a hearing and dismissed the petition. The basis of the holding was that the claim for post-conviction relief was barred by the three year limitation contained in A.R.Cr.P. Rule 37.2 (c) as there were no allegations which would render the conviction absolutely void. We affirm. Jurisdiction is in this court pursuant to Rule 29 (1) (e).

Appellant contends that the three year limitation was erroneously applied since he had not previously filed an appeal. We find no error. The limitation found in A.R.Cr.P. Rule 37.2 (c) is applicable whether or not there was an appeal. Of course, if the judgment was absolutely void the limitation does not apply. Martin v. State, 277 Ark. 175, 639 S.W.2d 738 (1982).

Appellant next contends that the trial court erred in dismissing his petition without a hearing to determine if the judgment of conviction was absolutely void. Again, we find no error.

Our procedure requires that the petitioner set forth facts from which it must appear he is entitled to discharge. Bosnick v. State, 275 Ark. 52, 627 S.W.2d 23 (1982). Jurisdictional facts must be pleaded to extend the period beyond the three year limitation. Appellant’s petition stated only one ground, lack of age, which possibly could have rendered the judgment void. See Ark. Stat. Ann. § 41-617 (Supp. 1981). However, the allegation was waived and was no longer a viable issue when appellant stated in open court before the hearing commenced that he did not claim lack of age as a ground for relief. In addition, the issue is not argued on appeal.

Appellant also alleged “his court appointed attorney misled him in sentencing.” This bare statement does not constitute a pleading of fact sufficient to allege that the judgment of conviction is absolutely void.

The right to jcounsel in a State prosecution is guaranteed by the Sixth Amendment. Gideon v. Wainwright, 372 U.S. 335 (1963). No sentence involving loss of liberty can be imposed where there has been a denial of counsel. Argesinger v. Hamlin, 407 U.S. 25 (1972). Even when an accused is represented by counsel, the assistance he receives may be so lacking in competence that a denial of the Sixth Amendment protection will result. Hawk v. Olson, 326 U.S. 271 (1945). However, a bare allegation of “misleading advice” does not meet the standard of a sufficient factual allegation to obtain relief outside the period of limitations. It is so lacking in specificity that it does not even meet the strict standard to obtain relief within the period of limitations. As noted in Harvard Law Review:

[I]f the defendant claims that his plea was prompted by erroneous advice from his counsel, it may be that he has misinterpreted remarks that amounted to no more than an educated guess as to the consequences of the plea. To avoid the difficulty of ascertaining the exact nature of conversations between counsel and client, the courts have generally been reluctant to entertain this type of claim unless it appears that counsel unqualifiedly and falsely represented that the state had accepted a plea bargain and that the defendant justifiably relied on the representation.

78 Harvard L. Rev. 1434 at 1441 (1965).

The allegation that he was under the influence of drugs at the time the crime was committed is barred by the three year limitation. Since appellant entered a plea of guilty he is precluded from raising this issue on a post-conviction proceeding. Irons v. State, 267 Ark. 469, 591 S.W.2d 650 (1980). Relief on this issue is not available by collateral attack to one who could have raised the issue before sentencing. Coleman v. State, 257 Ark. 538, 518 S.W.2d 487 (1975). This type of issue is significant only in relation to an allegation of ineffective assistance of counsel. Irons v. State, supra. It is not that type of allegation of ineffective assistance of counsel that it would render a judgment of conviction absolutely void.

The trial judge was correct in upholding the three year limitation and denying the hearing because the appellant did not plead facts sufficient to render the judgment of conviction void.

Affirmed.


author: Steele Hays, Justice.

text:
    Nathaniel M. GRIFFIN et al v. John ERICKSON
    82-211
    642 S.W.2d 308
    Supreme Court of Arkansas
    Opinion delivered November 22, 1982

      R. Jack Magruder, III, City Atty., by: Robert T. Taylor and Carolyn B. Witherspoon, Asst. City Attys., for appellants.

      Henry ¿r Duckett, by: David P. Henry and James M. Duckett, for appellee.
   Steele Hays, Justice.

The essential question here is whether John Erickson was wrongfully discharged in April .1980 from his job as Subdivision Administrator by Nathaniel M. Griffin, Director of the Office of Comprehensive Planning of the City of Little Rock. Relying on a document entitled “Statement of Management Policy”, Erickson claimed he was discharged without cause and appealed to the City Manager, Carlton McMullen, who upheld the discharge. Erickson then filed suit against Griffin, McMullen and the City. The Chancellor held Erickson’s discharge was not warranted under the proof and ordered his reinstatement with back pay totaling $30,502.68. On appeal, we reverse.

John Erickson was first employed by the City in 1963, working directly under Richard Wood, in what was then called the Department of Community Development. In 1977 a major change in emphasis and philosophy occurred in the office, shifting from a caretaking approach in subdivision development to a more professional approach, applying more updated principles of planning. Nathaniel Griffin was hired as director and the department was renamed “Office of Comprehensive Planning.” In June of 1978, Erickson received a memorandum from Griffin outlining in depth his objectives for the office of Subdivision Administrator and pointing out areas of deficiency where improvement was expected. He proposed to review performance after six months and if merited, promotion would be recommended. In February of 1979, Erickson was promoted, but in May he received the first of a series of critical memoranda alleging excessive absences from the office. In September a memorandum went to all 15 members of the staff from Richard Wood dealing with poor work habits, tardiness, lax attitudes and inefficiency. A later memo from Griffin stressed the same points. On October 1, a memo to Erickson from Griffin and Wood referred to “Unacceptable Job Performance”, generally stressing the same problems and mentioning tardiness and unwillingness to do unpleasant tasks or to work to capacity. In October and December Erickson received memos from Griffin alleging the mishandling of six subdivision matters, outlining the alleged failures in specific terms. The following day a Wood to Erickson memo cited unacceptable job performance in connection with excessive or unauthorized absences from the office and in the preparation of the subdivision committee agenda. The memo suggested Erickson was becoming increasingly indifferent to the issues and solutions of the office and said another notice would result in termination or demotion.

In February 1980, a memo alleged that Erickson had left the office to go to the races without completing a report Griffin had requested in response to an inquiry from the City Manager’s office. A March memo cited tardiness on March 27 and an unauthorized absence of 3.5 hours on March 28. In April 1980 Erickson was terminated for alleged substandard performance extending back to June 8, 1978.

Erickson requested a hearing pursuant to the “Statement of Management Policy” and a hearing was conducted first by the City Personnel Director, Ron Lloyd, and then by the City Manager, Carlton McMullen. Both affirmed the decision to terminate Erickson.

Before considering what effect the Statement of Management Policy may have had on the employment of John Erickson, basic elements of this case should be reexamined by reviewing the law with respect to the right of an employer to discharge an employee. It is generally, perhaps uniformly, held that when the term of employment is left to the discretion of either party, or left indefinite, or terminable by either party, either party may put an end to the relationship at will and without cause. See cases cited in 56 Corpus Juris Secundum, Master-Servant, § 31, p. 412 and 53 American Jurisprudence 2nd, Master-Servant, § 17, p. 94. It has been stated generally that employment is held only by mutual consent, and that at common law the right of the employer to terminate the employment is unconditional and absolute. Jefferson Electric Company v. N.L.R.B., 102 F.2d 949 (1939).

Generally, a contract of employment for an indefinite term is a “contract at will” and may be terminated by either party, whereas a contract for a definite term may not be terminated before the end of the term, except for cause or by mutual agreement, unless the right to do so is reserved in the contract. Little v. Federal Container Corporation, 452 S.W.2d 875 (Ct. of App. Tennessee, 1969).

Our own cases have adhered to this principle, that either party has an absolute right to terminate the relationship. Miller v. Missouri Pacific Transportation Company, 225 Ark. 475, 283 S.W.2d 158 (1955), Moline Lumber Company v. Harrison, 128 Ark. 260, 194 S.W. 25 (1917), St. Louis, I.M. and S.R. Company v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897). Federal decisions applying Arkansas substantive law in this field are: Tinnon v. Missouri Pacific Railroad Company, 282 F.2d 773 (8th Cir. 1960); Cato v. Collins, 539 F.2d 656 (8th Cir. 1976), and Clark v. Mann, 562 F.2d 1104 (8th Cir. 1977). Nor does the fact that the employment is public rather than private alter the rule. Ruggieri v. City of Somerville, 405 N.E.2d 982 (Mass. 1980). Board of Regents v. Roth, 408 U.S. 564 (1972), and Mittlestaedt v. Board of Trustees of the University of Arkansas, 487 F. Supp. 960 (1980).

It is quite clear, therefore, that in the absence of some alteration of the basic employment relationship, an employee for an indefinite term is subject to dismissal at any time without cause.

Moreover, we have held firmly to this view even where a contract of employment provides the employee will not be discharged except for good cause. We have said that where an employer and an employee agree the employee shall not be discharged without cause, the contract is not enforceable where there is no agreement by the employee to serve for any specified time. In St. Louis I.M. and S.R. Company v. Matthews, 64 Ark. 398, 42 S.W. 902 (1897), we said:

It is very generally, if not uniformly, held, when the term of service is left to the discretion of either party, or the term left indefinite, or determinable by either party, that either party may put an end to it at will, and so without cause, (our italics).

Forty-six years later, in Petty v. Missouri and Arkansas Railway Company, 205 Ark. 990, 167 S.W.2d 895 (1943) we reaffirmed the rule in Matthews. Petty, a railroad engineer, claimed he was wrongfully discharged under a contract and asked that the Matthews case be overruled. We declined to overrule Matthews and said:

We see nothing in [Matthews] that runs counter to any well established rule of law of contracts. On the contrary, it appears to us to be in harmony with the rule of mutuality of obligation. The fact that it was decided forty-five years ago and by a divided court, Chief Justice Bunn dissenting, is not sufficient to justify overruling it. Decisions of other courts are cited to support the decision made, and our investigation discloses that there are a number of decisions of courts of last resort since that time and up until quite recently that are in accord with it.

Whether Petty and Matthews should be followed now, we do not decide, as neither side has relied on these cases and we are unwilling to decide a question of significance in that setting. We cite these cases to illustrate how firmly ingrained in our case law is the rule that either party may terminate a contract of employment where no specific duration is agreed on even where the contract requires cause. A number of federal cases cite Matthews and Petty as the controlling substantive law of Arkansas. Tinnon v. Missouri Pacific Railroad Co., 282 F.2d 773 (1960), Smithey v. St. Louis Southwestern Railway Co., 237 F.2d 637 (1956) and Roberts v. Thompson, 107 F. Supp. 775 (E.D. Ark. 1952).

Erickson makes no claim that he was employed for a definite term. Rather, like Petty and Matthews, he claims the Statement of Management Policy prohibited his discharge without cause. The City, on the other hand, contends the SMP was not applicable to Erickson and, even so, sufficient grounds for his dismissal existed.

The City argues the SMP was never formally adopted and had no binding effect. Although the SMP was drafted with union members in mind, it was followed and applied as the operating manual for non-union employees of the City and we find no reason to disregard it. The more difficult question is how literally it was intended to apply to professional employees. The instrument itself lacks clarity and we are unable to determine what is intended by it. We conclude that by usage it was generally applied to other employees as well as those expressly covered. At the same time we point out that literal compliance is not required. Maxwell v. Southside School District, 273 Ark. 59, 618 S.W.2d 148 (1981), and McElroy v. Jasper School District, 273 Ark. 143, 617 S.W.2d 356 (1981). The testimony of Carlton McMullen, and others, that with respect to professional employees the SMP was intended to be more of a procedural guide than a statement of strict substantive rights is plausible. Without belaboring the point, we are satisfied the SMP applied to John Erickson but we believe there was substantial compliance with its requirements and the hearings conducted by Lloyd and McMullen were sufficient.

Turning to the grounds themselves, the Chancellor found the discharge unwarranted by the proof, but we are convinced that view cannot be sustained. It would be impractical to attempt to examine the grounds separately. The list is too long and in some instances too complex. It was conceded some of the complaints were legitimate. We have studied the allegations and responses fully and putting the burden of proving justification on the City the evidence supports the termination. We find the Chancellor’s findings to the contrary to be clearly erroneous. Besides, the grounds are merely symptoms of the problem, the important thing is the root causes and the inescapable fact is that John Erickson failed to perform professionally in a manner acceptable to his two immediate superiors. Plainly, he and Nathaniel Griffin had a fundamental difference of opinion in philosophy which was never resolved. Richard Wood’s testimony attests to that and John Erickson’s does not refute it, if anything it confirms it. Whatever the basic differences were, or which was correct, we cannot say. But it is clear the end result was a growing inability of the two men to work cooperatively toward the same end and in all probability it contributed to the decline in performance which both Griffin and Wood attributed to John Erickson. Wood described the quality of Erickson’s work as substandard, saying he became increasingly indifferent to the disciplines of the job, that he adopted a “so-what” attitude and told Wood he was not in accord with the objectives of the Planning Department, that his sympathies lay with the development community. Griffin’s testimony was similar, in sum, that Erickson was not working up to capacity nor at a level acceptable to Griffin. These are the appraisals of the two men under whom John Erickson worked and whose concepts he was obliged to satisfy. Whether Erickson’s philosophy was sound and Griffin’s faulty is not for us to decide, but we believe a subordinate employee has a responsibility to accommodate his professional views and objectives to those of his superior if an efficient operation is to be achieved. The proof is that John Erickson declined to do that and chose instead to discuss his differences with Griffin with other members of the staff and with “forty to fifty” other people, yet not once did he go to Griffin to discuss areas of disagreement:

Q. The point is you discussed your disagreement and problems that you had with Nat Griffin with somewhere between forty and fifty people, but yet you never bothered to discuss them with Nat Griffin.
A. He never bothered to discuss them with me.
Q. Well, I mean his office door was open, wasn’t it?
A. So was mine.
Q. Well, how was he to know that you were having a problem philosophically?
A. He was the one that — I was having no philosophical problems.

Erickson’s assertion that Griffin never bothered to discuss problems with him is both inaccurate and revealing. The long memo to Erickson in June, 1978, explained Griffin’s views and objectives for the planning department in detail. It invited questions from Erickson about the memo and urged him to express his own views, not to be a “yes-man”, proposing that once the staff had developed its position, it be unified in presenting that position.

Nor do we think unreasonable demands were put on Erickson. He makes no claim that that was so. He was expected to be prompt and regular in job attendance, yet it is plain that absenteeism was a problem and he had a tendency to be late, as one co-worker stated. We reject the notion that Erickson was the object of a vendetta.

There was testimony supportive of John Erickson which we have not overlooked: two secretaries testified that rules were loosely enforced and others were late and did not always follow the rules. One member of the Planning Commission testified that Erickson’s presentations to the commission were clear and concise. A developer described his staff reports to the commission as forceful and articulate, regarding him as more knowledgeable and capable than Griffin. On the other hand, a former commission chairman said Erickson’s presentations failed to frame the issues sufficiently for the commission to understand them, that Erickson did not know the material or knew it but failed to articulate it. He said the presentations were not clear and forthright and it was Richard Wood who got to the heart of the matter. Giving John Erickson the fullest benefit of these opinions, the test is not so much how outsiders saw his work, as how the men to whom he was responsible saw it, and of that there can be no question.

We have come to this view in part because we think the reinstatement of an employee at the professional level under the circumstances of this case would be especially unfortunate and ill-advised. If cooperative effort was lacking before, it would be nonexistent now. The authority of Woods and Griffin to manage and direct the staff would be undermined, and the orderly and efficient handling of the operation of the office would be impaired. Too, we have serious doubts that reinstatement is an available remedy. Our cases suggest otherwise. In St. Louis I.M. and S.R. Company v. Matthews, supra, the court questioned whether an employment contract calling for reinstatement was void as against public policy, and other cases, without mentioning reinstatement, have said an employee wrongfully discharged has these remedies: he can either sue for damages for breach of contract or treat the contract as rescinded and sue to recover the value of his services on a quantum meruit basis. Van Winkle v. Satterfield, 58 Ark. 617, 25 S.W. 1113 (1894), and Seaman Stores Co. v. Porter, 180 Ark. 860, 23 S.W.2d 249 (1930).

The decree is reversed and the suit dismissed.


text:
    James GRAY v. STATE of Arkansas
    CR 82-84
    642 S.W.2d 306
    Supreme Court of Arkansas
    Opinion delivered November 22, 1982

      William R. Simpson, Jr., Public Defender, and Howard W. Koopman, Deputy Public Defender, by: Carolyn P. Baker, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: A lice Ann Burns, Asst. Atty. Gen., for appellee.
   Steele Hays, Justice.

Appellant was tried on May 11, 1980 on charges of rape, aggravated robbery and attempted capital murder. The jury convicted him of rape and acquitted him of aggravated robbery. It was unable to reach a verdict on attempted capital murder and that charge was nol-prossed.

Almost one year later, on May 5, 1981, appellant filed a pro se motion for a transcript of the trial in order that he might perfect an appeal. The public defender was appointed and moved orally that the petition be treated as a petition for post conviction relief under A.R.Cr.P. Rule 37. However, there seems to have been a misunderstanding as to whether it became a motion under Rule 36 for a belated appeal, or a Rule 37 petition based on allegations of ineffective assistance of counsel during the trial. As a consequence, the record presents a confusion of substantive and procedural issues.

Appellant’s proof was directed at both points, but we can disregard the Rule 37 claim of ineffective assistance of counsel at trial, as the evidence was wholly lacking. The trial court denied the Rule 37 petition and no argument on that score is now raised. However, appellant also claimed he told his trial attorney that he wanted to appeal and wrote him several times to that effect. Testimony by appellant’s attorney and appellant’s wife, who acted as a go-between, suggested that appellant was undecided as to whether to appeal, not wanting to risk a second trial on two charges carrying life sentences in view of the single twenty-five year sentence he received.

On the issue of whether appellant was deprived of effective assistance of counsel in perfecting an appeal, the trial judge noted that he had no authority to grant a belated appeal and declined to reach that issue. It is from that ruling that appellant appeals.

The trial judge’s comment that the trial courts are without authority to grant belated appeals is entirely consistent with what we have said in several opinions — that motions for belated appeal should be filed in the Supreme Court. Ellis v. State, 276 Ark. 560, 637 S.W.2d 588 (1982); Hamman v. State, 270 Ark. 307, 605 S.W.2d 6 (1980); and Finnie v. State, 265 Ark. 941, 582 S.W.2d 19 (1979). However, there is some confusion as to whether this court or the trial court is the proper tribunal. Appellant cites Osbourne v. State, 276 Ark. 479, 637 S.W.2d 535 (1982) and the wording of Rule 36.9 in support of his contention that the trial court is the proper place to file his motion for belated appeal. In Osbourne v. State we affirmed an order of the trial court granting a motion for a belated appeal which was filed initially in the trial court. The procedural issue was not discussed in Osbourne, we simply affirmed the trial court’s order without commenting on whether the motion was improperly filed.

Appellant also cites Rule 36.9, as amended December 18, 1978, as applying concurrent jurisdiction:

However, no motion for belated appeal shall be entertained by the Supreme Court unless application has been made, either to the Supreme Court or the trial court, within eighteen months of the date of commitment. (our italics)

But the purpose of the amendment was not to change the procedure so as to permit motions for belated appeal to be filed in either court, but merely to set a time limit for the filing of such motions, irrespective of where they originated.

In spite of the inference created in Osbourne v. State, the fact remains that under our law motions for belated appeal are filed, not in the trial court under Rule 37, but in this court under Rule 36.9, which reads in part:

The Supreme Court may act upon and decide a case in which the notice of appeal was not given or the transcript of the trial record was not filed in the time prescribed, when a good reason for the omission is shown by affidavit, (our italics)

We have said as much in two opinions since Osbourne and we adhere to that view. Ellis v. State, supra, and Hammon v. State, supra.

Since the trial court was clearly correct in its conclusion that only the Supreme Court has authority to grant a belated appeal, we must affirm its decision. The affirmance is without prejudice, however, to appellant’s filing a motion for belated appeal in this Court, in which case we will likely remand to the trial court for an evidentiary hearing on the disputed issues of fact. See Schuster v. State, 261 Ark. 730, 551 S.W.2d 210 (1977).

Affirmed.


author: Per Curiam.

text:
    Benny MURRAY v. STATE of Arkansas
    CR 81-88
    642 S.W.2d 313
    Supreme Court of Arkansas
    Opinion delivered November 22, 1982

      Jack Lassiter, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Asst. Atty. Gen., for appellee.
   Per Curiam.

Petitioner Benny Murray was convicted with his co-defendant Patricia Langford of two counts of selling marihuana. We affirmed. Murray & Langford v. State, 275 Ark. 46, 628 S.W.2d 549 (1982). Murray now seeks permission to proceed in circuit court for post-conviction relief pursuant to A.R.Cr.P. Rule 37.

Petitioner raises several grounds for relief, but only one allegation, designated VIII in the petition, raises a ground sufficient to grant permission to proceed in circuit court under Rule 37. He alleges in Paragraph VIII that counsel’s representation of both him and Langford as co-defendants amounted to ineffective assistance of counsel because their interests conflicted substantially. He cites counsel’s decisión not to call him as a witness as support for the allegation. He asserts that he would have testified, if called, that Langford initiated and consummated the marihuana sales; therefore, since his testimony would have been damaging to Langford and exculpatory with respect to him, there was no way for counsel to represent both defendants without prejudice to him.

We find that the allegation presents a question which warrants our granting permission for petitioner to file a petition for post-conviction relief in circuit court limited to the allegation of ineffective assistance of counsel as discussed herein. In all other respects the petition is denied.

Affirmed in part and denied in part.


author: George Rose Smith, Justice.

text:
    VALLEY FORGE INSURANCE COMPANY v. Michael CARNER
    82-125
    642 S.W.2d 317
    Supreme Court of Arkansas
    Opinion delivered November 29, 1982

      Wright, Lindsey ir Jennings, for appellant.

      B. Richard Allen, for appellee.
   George Rose Smith, Justice.

In March, 1981, Michael earner’s dwelling house was, according to the jury’s verdict, totally destroyed by fire. In October, 1981, Carner brought this action upon his fire insurance policy, issued by the appellant, to recover the amount of his loss, $49,600. The insurance company defended on the grounds that the loss was not total and that Carner had intentionally set the fire. Upon the jury’s verdict for Carner the trial court entered judgment in his favor for $49,950, plus the statutory 12% penalty and a $15,000 attorney’s fee. None of the insurer’s three points for reversal can be sustained.

First, on February 12, five days before the case was to be tried before a jury and after the issues had been joined, the defendant filed a counterclaim asserting that on the preceding day it had paid $29,459.78 on two delinquent mortgages on the insured property, had taken assignments of the mortgage notes, and was entitled to foreclose the mortgages, and that the case should be transferred to equity for the foreclosures. After a hearing two days before the scheduled trial the court denied the motion to transfer.

The motion was properly denied. The insurer waited almost a year after the fire before paying off the mortgages. Under ARCP Rule 13 (d) the counterclaim could have been asserted in a separate action, because it was acquired after the issues had been joined. The eleventh-hour payments upon the notes and the motion to transfer could have been regarded by the trial court as a maneuver to avoid a j ury trial rather than as a counterclaim which the insurer felt compelled to assert in the circuit court. Moreover, the jury’s verdict has rendered the question moot. We find no prejudicial error.

Second, appellant argues that the amount of the mortgages was payable in any event and therefore should not have been included in the calculation of the 12% penalty. There was, however, no offer by the insurer to confess judgment for the mortgage debts. To the contrary, it took assignments and sought foreclosure. The jury’s verdict for the full amount was certainly for earner’s benefit, since it exonerated him from the defense of arson and confirmed the appellant’s ultimate liability for the amount of the mortgage debts. See Farm Bureau Mut. Ins. Co. v. Shaw, 269 Ark. 757, 600 S.W.2d 432 (Ark. App. 1980).

Third, it is argued that the $15,000 attorney’s fee is excessive, primarily because plaintiff’s counsel had been employed upon a one-third contingent fee contract. Admittedly, the allowance of the fee in a case of this kind should not be based on a speculative or contingent basis. Equitable Life Assur. Society v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974). Here it was not so based. Three attorneys testified that a one-third contingent contract is reasonable in a case of this kind when the defense is arson. The insurer offered no proof to the contrary. The trial judge stated that in fixing the fee he had not considered any basis of contingency or percentage. None of the testimony at the jury trial has been abstracted; so we do not share the trial judge’s advantageous position in arriving at the proper amount. We cannot say that the $15,000 fee is unreasonable.

Affirmed.


text:
    J. C. CASH v. CITIZENS BANK OF TILLAR, Arkansas
    82-138
    642 S.W.2d 318
    Supreme Court of Arkansas
    Opinion delivered November 29, 1982

      Honey & Rodgers, by: Danny P. Rodgers, for appellant.

      L. David Stubbs, for appellee.
   George Rose Smith, Justice.

The principal issue argued here is whether this case was properly tried in the circuit court as an action in ejectment rather than being dismissed for an asserted lack of jurisdiction of the subject matter. We hold that the circuit court was right in trying the case.

The plaintiff bank, by its amended complaint in the Drew chancery court, sought to quiet its title to a 9.3-acre tract lying partly in Drew county and partly in Desha county. The defendant Cash filed two motions on the same day, one asking that the suit be dismissed because the defendant was in possession of the land and the other asking that the suit be transferred to the Desha circuit court because the suit was in ejectment. The chancellor denied the motion to dismiss, granted the motion to transfer, and transferred the case to the Drew circuit court.

In the circuit court the case was set for a non-jury trial. At the beginning of the trial Cash’s trial attorney, who is no longer in the case, orally asked in effect that the case be dismissed because the bank had not amended its complaint to seek any relief other than the quieting of its title. After an extended discussion the trial judge permitted the bank to amend its complaint to make the case one in ejectment. Cash’s attorney made no request for a continuance or any other objection, saying instead, “That’s fine.” The case was then tried on its merits, with the decision being in favor of the bank.

It is first argued that since Cash was in possession the chancery court had no subject-matter jurisdiction of the suit to quiet title and the circuit court acquired none by reason of the transfer. The subject matter, however, was not the quieting of title, as counsel argue. Quieting title is merely a remedy. The subject matter was the land, which lies partly in Drew county, within the jurisdiction of both courts. Ark. Stat. Ann. § 27-601 (Repl. 1979). Perhaps Cash could have stood upon his motion in the chancery court to dismiss the suit because he was in possession, but instead he asked alternatively that the case be transferred to the circuit court. The chancellor properly sustained the motion to transfer. As we said in an earlier suit to quiet title, Jackson v. Gregory, 208 Ark. 768, 187 S.W.2d 547 (1945): “Since appellant did not allege that she was in possession of the land, and it appeared that the appellees were in possession when this litigation was instituted, the suit was properly transferred to the circuit court, and that court correctly treated it as an ejectment proceeding.”

That quotation also answers Cash’s second argument, that the trial judge should not have treated the complaint as being amended to state a cause of action in ejectment. Absent any showing of prejudice the bank was entitled to amend its complaint, even without leave of court. ARCP Rule 15. Cash, having moved for the transfer on the ground that the suit was one in ejectment, cannot complain that his contention was sustained.

Cash’s final argument, that the trial court should have allowed him to remove a building from the land, is not supported by any admissible proof brought to our attention. Counsel have abstracted on this point only á letter written to Cash by the bank six months before suit was filed. The letter declared Cash to be a trespasser and ended: “We also expect your temporary building to be removed from our property.” The trial judge refused to consider the letter, because it was not introduced at the trial and was proffered only as an unsupported objection to the judge’s approval of the precedent for judgment. We have no basis in the proof for holding that the court should have allowed the removal of the building.

Affirmed.


author: Darrell Hickman, Justice.

text:
    Leonard R. SIMMONS and RALPH WALKER, INC. v. Dale FRAZIER
    82-140
    642 S.W.2d 314
    Supreme Court of Arkansas
    Opinion delivered November 29, 1982

      Frierson, Walker, Snellgrove & Laser, for appellants.

      Reid, Burge & Prevallet, by: Robert L. Coleman, for appellee.
   Darrell Hickman, Justice.

This is an appeal from an award of $107,211.60 to Dale Frazier, the appellee, for personal injuries he suffered when he was run over by a tractor-trailer truck in Mississippi County, Arkansas. Leonard R. Simmons, the driver, and Ralph Walker, Inc., the owner of the truck, appeal arguing four errors were committed. Simmons died before the trial of natural causes. We affirm the judgment.

It is undisputed that Frazier was hitchhiking on Interstate Highway 55 in July of 1979. He was enroute from Montana to Meridian, Mississippi, where his parents lived. His last ride let him out at about 10:00 p.m. on July 3rd by a weigh station near Blytheville, Arkansas. Frazier sat down on the nine foot wide shoulder with his suitcase and duffle bag to await another ride; while there he fell asleep. At about 1:30 a.m., Simmons, the driver of the rig that hit Frazier, passed the exit to the weigh station by mistake. When Simmons recognized his error he pulled over to the side of the road and began to back the tractor-trailer rig back some six or seven hundred feet to the exit. As he was doing so, he ran over Frazier. Simmons immediately pulled the truck off Frazier. A state policeman testified that there was blood two feet and two inches from the edge of the traveled portion of the interstate and determined that had to be the point of impact. There was evidence that the area was well lighted.

The damage to Frazier’s left thigh was extensive. He suffered an avulsion, or tearing away, of the flesh. He was immediately taken to a hospital in Memphis where he remained for thirty-four days. A skin graft was taken from his right upper thigh and an attempt was made to fill the indention made by the avulsion to his injured thigh.

The jury was given a series of instructions regarding the duties of pedestrians and drivers and it is argued that those instructions were contradictory and confusing. It is not argued that the instructions were inherently wrong but were wrong as applied to this case. First, the court gave AMI Civil 2d, 909:

Streets and highways are available for the use of both pedestrians and motorists. The driver of a motor vehicle must anticipate the presence of pedestrians on streets and highways, and use ordinary care to avoid injuring them. Pedestrians are required to anticipate the presence of motor vehicles and use ordinary care for their own safety.

Next, the court gave, at the appellants’ request, an instruction based on AMI 903A which reads:

There was in effect in the state of Arkansas at the time of the occurrence, statutes which provide that it is unlawful for any person on controlled access facilities to drive any vehicle except in the proper lane provided for that purpose and in the proper direction. There was in force in the state of Arkansas other statutes which provided, one, the definition of pedestrian is any person afoot; two, street or highway, the entire width between property lines of every way, place or whatever nature when any part thereof is open to the use of the public as a matter of right for purposes of vehicular traffic.
The definition of roadway, that portion of a highway improved, designed or ordinarily used for vehicular traffic.
Pedestrian soliciting rides. No person shall stand in a roadway for the purpose of soliciting a ride from the driver of any private vehicle.
A violation of these statutes, although not necessarily negligence, is evidence of negligence to be considered by you along with all the other facts and circumstances in this case.

The appellants argue that these two instructions are confusing because the first instruction tells the jury that a pedestrian has a right to use the highway, yet the second tells the jury that a pedestrian may not stand in a roadway to hitchhike. The appellants contend that AMI 909 should not have been given at all, because it is irreconcilable with AMI 903A. It is pointed out by the appellants on appeal — it was not brought out below — that the Arkansas Highway Commission has formulated a special rule which prohibits pedestrians from using a controlled access highway at all.

That statement is contained in the Minute Order No. 64-144 of May 27, 1964, and reads:

. . . [I]t is hereby declared to be a policy of this Commission that the use of controlled access state highways in the state by parades, pedestrians, bicycles and other non-motorized traffic shall be prohibited. The Director of Highways is directed to erect official signs on the roadways where such regulations are applicable.

The problem with the appellants’ argument is that they did not offer an instruction which recited the Highway Department’s Minute Order so that the jurors would be aware of the Highway Department’s policy regarding interstate highways. The trial court was not wrong in failing to give an instruction as to a special rule regarding controlled access highways because it was not presented with such an instruction. No doubt, since this was a case involving an interstate, the judge would not have given AMI 909 if it had been demonstrated it was contrary to a rule regarding controlled access highways. Actually the appellants are saying that AMI 909 conflicts with the Highway Department’s rule. That may be true, but the trial court was not presented with the argument. The two instructions that were given are not irreconcilable. Read together, the instructions tell the jury that while a pedestrian has the right to use a highway, he cannot stand in the highway to solicit a ride — and common sense dictates one cannot sleep on the highway or shoulder and be blameless if there is an accident.

It is also argued that AMI 901, which details a driver’s duty to keep a lookout, further confused the jury because it put undue emphasis on the duty of the driver and, thus, it was implied that a pedestrian does not have a corresponding duty. But another instruction gave the duty of both the driver and pedestrians.

As appellants concede, the instructions themselves were not wrong and we are not convinced that the jury was so confused by the instructions, or that they were so contradictory, that it could not arrive at a fair verdict regarding the duties and responsibilities of the respective parties. The j ury found that Frazier was guilty of 10% negligence in causing the accident and the driver 90%. Therefore, the jury did find that Frazier, as a pedestrian, had a duty which he breached.

The appellants offered an instruction on assumption of risk. The court declined to give it and the appellants argue that was prejudicial error. We do not agree. Because Arkansas is a comparative fault state, assumption of risk is not a complete bar to recovery but is simply a matter to be considered in deciding fault. See Ark. Stat. Ann. § 27-1764 (Repl. 1979); AMI Civil 2d, 612 Comment (Supp. 1981). It is a harsh doctrine and has been approved only in limited situations. Compare with Bugh v. Webb, 231 Ark. 27, 328 S.W.2d 379 (1959). This was nota situation that required the instruction because there was no evidence Frazier actually knew and appreciated the specific danger that caused his injury. That danger in this case was Simmons backing his truck along the shoulder of the interstate. No doubt it was negligence for Frazier to sleep on the shoulder, and the jury so found. But we cannot say, as a matter of law, he assumed the risk of Simmons’ action.

The appellants also argue that the award was excessive and that Frazier was guilty of at least 50% of the negligence, which was the cause of the accident, as a matter of law. Both issues were within the province of the jury and we will not substitute our judgment for theirs. Frazier’s injuries were severe and permanent; he nearly lost his leg. The evidence reflected that he suffered a good deal of pain and that he has a permanent, large, and deep scar on his left thigh which continues to cause him pain, suffering, and discomfort and some diminution of his ability to work. His medical expenses were over $5,000 and we cannot say that the verdict shocks our conscience. Morrison v. Lowe, 274 Ark. 358, 625 S.W.2d 452 (1981); Grandbush v. Grimmett, 227 Ark. 197, 297 S.W.2d 647 (1957).

Nor can we say as a matter of law that Frazier was guilty of negligence which was equal to or more than that of the driver of the rig. As we have indicated, Frazier was no doubt at fault, but whether he was more at fault than a truck driver who backed a semi-tractor trailer rig six or seven hundred feet at night on the shoulder of an interstate highway, was a question for the jury. The jury’s decision will not be overturned unless there is no substantial evidence at all to support the verdict. St. Louis Southwestern Railway Co. v. Pennington, 261 Ark. 650, 553 S.W.2d 444 (1977).

Affirmed.


text:
    Robert “Bob” PRITCHARD v. THE TIMES SOUTHWEST BROADCASTING, INC., an Arkansas Corporation, d/b/a KFSM-TV, and Tom EVELD
    82-116
    642 S.W.2d 877
    Supreme Court of Arkansas
    Opinion delivered November 29, 1982
    [Rehearing denied January 10, 1983.]

      Sam Sexton, Jr. of Sexton, Nolan ir Robb, P.A., for appellant.

      Cearley, Mitchell <¿r Roachell, by: Charles D. Harrison, for appellee Eveld.

      Hardin, Jesson ¿r Dawson, by: Bradley D. Jesson and Betsy Hall, for appellee The Times Southwest Broadcasting, Inc.

      Hickman, J., would grant rehearing as to liability of Eveld.

   Steele Hays, Justice.

This case arises from a defamation suit by the appellant against the Times Southwest Broadcasting, Inc., d/b/a KFSM-TV and Tom Eveld. The court gave a directed verdict for both appellees and from that decision, appellant brings this appeal. We agree with the trial court decision and will discuss first, the arguments raised in the case against KFSM.

In February of 1980, KFSM devoted a segment of its news broadcast to the appellant, Sheriff of Franklin County. A number of statements were made concerning the Sheriff, including the fact that his office had been investigated by a Grand Jury, that he had had two lawsuits filed against him with one still pending, and a state wildlife officer had written a memo to his superior relating threats he said the Sheriff had made. All of the above statements are true, and the Sheriff is not contesting the truth of these statements. Rather, he claims that the broadcast intended to convey to the viewer that one of the lawsuits and the allegations of the wildlife officer were two of the matters considered by the Grand Jury, when in fact this was not the case. He argues that the reporter knew these two matters weren’t before the Grand Jury and therefore, there was actual malice on the part of KFSM, as required by New York Times v. Sullivan, 376 U.S. 254 (1964), in recovery for defamation by a public official.

By a review of the transcript of the recording, we find no such intent or implication. The broadcast began with a statement that the County Grand Jury had investigated a number of complaints against the Sheriff’s Department. This was true and no mention is made of what allegations were investigated. The broadcast continued as follows:

[Quorum court member]:
I would like to see a Federal Grand Jury, I think that is the only way we are ever going to get it cleared up, because people don’t have any faith in our local system around here any more.
[Reporter]:
The [quorum court member] called for a Federal Grand Jury investigation following a quorum court meeting last fall. He and a number of other county residents don’t think the County Grand Jury dug deeply enough into the way this man runs the Sheriff’s Department. Bob Pritchard has been Sheriff of Franklin County for six years and his father before that. Pritchard has been re-elected two times, usually without a serious challenge. In the last election, he had three opponents, but Pritchard managed to get enough of the county’s eighty-two hundred registered voters to avoid even a run-off. Still, it hasn’t all been smooth sailing.

The reporter then related those matters in contention by the appellant.

We find no statements in this portion of the broadcast that are defamatory on their face, nor does the appellant point to any. We look then to see if there is defamation by innuendo. We stated in Wortham v. Little Rock Newspapers, Inc., 273 Ark. 179, 618 S.W.2d 156 (1981), “The words to be defamatory in such cases should be susceptible of two meanings, one defamatory and one harmless. In that regard, we read the words in their plain and natural meaning, as they would be interpreted by a reader of the newspaper considering the articles as a whole.”

There are no statements made here that are not true. The Sheriff had been investigated by the Grand Jury because of a number of complaints received by the judge who had called it, the Sheriff had had a civil rights suit filed against him, and the wildlife officer had written a memo to his superior, relaying threats the Sheriff had made. The comments by the reporter on these two incidents makes no reference to a connection between them and the Grand Jury investigation. The initial Grand Jury comment is followed by other items, including the popularity of the Sheriff in the county. The only connection between the Grand Jury and these two incidents is their inclusion in the same news broadcast. Also, there is no testimony that the reporters intended to convey the message appellant suggests. Reading the article as a whole and taking the words in their plain meaning, we cannot find them defamatory. As we stated in Wortham, supra, “It would be a strained and forced interpretation to say that [the plaintiff] was defamed, a posture that the law does not take in such a case.” Because we find no defamation here, it follows that we find no actual malice.

The appellant also argues that another portion of the broadcast was false and the reporter should have known it was false. In that portion the reporter stated that some people were saying the Sheriff had had influence over the Grand Jury investigating him. Appellant claims the reporter’s two sources were unreliable and that the reporter should have known that. One of the sources was subsequently indicted and although the reporter testified she wasn’t aware of this, the appellant claims the reporter should have known this because it was public record. The other source had two children who had been indicted. The reporter testified she was aware of this as to one of the children but could not remember about the other.

Since New York Times v. Sullivan, the Supreme Court has outlined further the guidelines for interpreting “actual malice” — the knowledge that a statement was false or the reckless disregard for its falsity. In Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967), the newspaper admitted it had not investigated the charges made, but the court held failure to investigate did not amount to the high degree of awareness of probable falsity demanded by Sullivan. And in St. Amant v. Thompson, 390 U.S. 727 (1968), the Supreme Court said reckless conduct wouldn’t be measured by what a reasonably prudent man would publish or investigate, but there must be sufficient evidence to show that the “defendant in fact entertained serious doubts as to the truth of the publication. . . . Failure to investigate does not in itself establish bad faith.”

There can be no serious doubt that the broadcast came well within these guidelines. The claims appellant makes about the sources are of questionable relevancy as to the reliability of these sources, and are not of the magnitude of “serious doubt.” And if perhaps only some doubt is raised, failure to investigate will not establish bad faith. There is no question but that proof of actual malice is absent here.

As to the appellant’s case about Eveld, some background information is necessary. Early in 1979, Eveld proposed to move his liquor store to another location, which the Sheriff opposed because he believed the change would create law enforcement problems. Considerable tension between the two men resulted, including rumors allegedly being spread about the appellant by Eveld. The conflict culminated in a confrontation in April, in front of Eveld’s liquor store. By the appellant’s own testimony, he admitted calling Eveld on the phone and telling him he was coming to his store to put an end to the things that Eveld had been saying. What precisely ensued after the Sheriff’s arrival is not clear. But again, by his own account he arrived at the store with his gun drawn. He said Eveld did not have a gun nor did he see any gun. He said they exchanged some heated remarks and that “ . . . [Eveld] got rather nervous, got to hollering and I swung with my fist and missed him. He went to the back of the car, and I did have my gun out, and he threw up his hand and I threw up mine, he hit the gun and hit the back of the car and run. To my knowledge when [Eveld] went around the corner, that is the last time I seen him.” Eveld subsequently filed suit against the appellant and that case is pending.

In Eveld’s version of the scuffle, he claims that appellant hit him with his pistol. The only variance in the allegations of Eveld concerning this scuffle that appellant raises on appeal, is that part which refers to the appellant hitting Eveld in the head with the pistol. The appellant argues that the jury might have found that Eveld had fabricated that part of the story.

The truth of the matter is a defense to a charge of defamation, but the exact truth is not required.

... [I]t is now generally agreed that it is not necessary to prove the literal truth of the accusation in every detail, and that it is sufficient to show that the imputation is substantially true, or as it is often put, to justify the “gist”, the “sting” or the “substantial truth” of the defamation. Thus an accusation that the mayor of a town has wasted $80,000 of the taxpayer’s money has been held to be justified by proof that he wasted $17,500, since there is no more opprobrium attached to the greater amount. Prosser, Handbook of the Law of Torts, 798-99 (4th ed. 1971).

One example of the application of this principle is in Smith v. Byrd, 225 Miss. 331, 83 So.2d 172 (1955) where a statement that a sheriff shot a man was justified by proof that he had acted in concert with a deputy who had actually shot him.

In this case, the defendant’s remarks were allegedly not precise in their truth. But the substance of the story is corroborated by the appellant himself and represents admitted misconduct on his part. Whether or not the appellant’s pistol actually came in contact with Eveld’s head, does not alter the gist or the “sting” of the statements. We find the truth of the defamation in this case meets the requirements for the defense of truth.

The appellant also contends that in defamation cases the judge is without authority to take the decision from the jury. The argument is without merit. We have affirmed defamation cases on summary judgment on more than one occasion: Lancaster v. Daily Banner-News Publishing Co., 274 Ark. 145, 622 S.W.2d 671 (1981), Wortham, supra; and we recently affirmed a defamation case on a directed verdict, Baker v. Mann, 276 Ark. 278, 634 S.W.2d 147 (1982).

In determining on appeal the correctness of the trial court’s action concerning a motion for a directed verdict by either party, the test is to take that view of the evidence that is most favorable to the party against whom the verdict is sought and to give it its highest probative value, taking into account all reasonable inferences deducible from it, and to grant the motion only if the evidence viewed in that light would be so insubstantial as to require that a jury verdict for the party be set aside. Dan Cowling and Associates v. Clinton Board of Education, 273 Ark. 214, 618 S.W.2d 158 (1981).

In viewing the evidence in this light, for the reasons already stated, we find that both the defendants provided more than substantial evidence from which to conclude that either no defamatory statements had been made, or if so, there was no actual malice.