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

text:
    Louise CAMPBELL v. STATE of Arkansas
    CR 83-106
    660 S.W.2d 926
    Supreme Court of Arkansas
    Opinion delivered November 21, 1983

      Appellant, pro se.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Darrell Hickman, Justice.

Louise Campbell, who pleaded guilty to theft with four prior felony convictions, was sentenced to twenty years imprisonment with five years suspended. This occurred in the Pulaski County Circuit Court on December 13, 1979, before Judge Floyd Lofton. Campbell filed a petition for postconviction relief on September 10, 1982, complaining her sentence was illegal for four reasons: Judge Lofton knew of her extensive criminal background and should have been disqualified; her prior felony convictions were not proved; her counsel was incompetent, and her sentence was excessive.

The record of the hearing before Judge Lofton bears out that Louise Campbell made a knowing and voluntary guilty plea to Judge Lofton, she admitted and recognized that she had four prior felonies and knew of the possible sentence, she had conferred with her attorney several times on strategy and whether to plead guilty, and whether to plead guilty to Lofton, and that she unquestionably knew that she could receive a twenty year sentence. She deliberately and knowingly turned down a negotiated plea for a sentence of twenty years with fifteen years suspended, gambling that the State could not produce the witnesses on the trial date who would prove her guilty of two charges of theft. She lost that gamble and now complains. The State did produce the witnesses, the negotiated plea was no longer offered, and she decided to plead guilty to Judge Lofton. Any objections and arguments not raised at trial, which might have been, are waived, except those that would render the judgment void. McCroskey v. State, 278 Ark. 159, 644 S.W.2d 272 (1983); Neal v. State, 270 Ark. 442, 605 S.W.2d 421 (1980).

Judge Lofton had previously represented Campbell in some criminal matters. He recognized her just as the hearing began and offered to disqualify:

THE COURT:
Mr. Simpson, [Defense Counsel] I didn’t recognize Ms. Campbell until she walked up here. I used to represent Ms. Campbell. Do you have any objections to me entering this plea? Is it a plea?
DEFENSE ATTORNEY:
She is going to throw herself on the mercy of the Court. It’s not a negotiated plea, although there are some circumstances that she would like to make the court aware of.
THE COURT:
Okay. Ms. Campbell, I have represented you for some time and your husband, Freddie, and have some knowledge about you and your prior involvement with the law. Would you rather somebody else hear this?
DEFENDANT CAMPBELL:
No.
THE COURT:
Gentlemen, I really feel uncomfortable about it, because I am aware of Ms. Campbell’s extensive involvement with the law. I will — if you would like, I will go ahead and do what I think the system requires and try to be as honest with Louise as I can under the system; or, I will do one or the other: I will take her guilty plea and satisfy myself with this plea and transfer her to the Fifth Division for sentencing or I’ll transfer the whole thing. Talk to her Mr. Simpson, and see what she wants to do. [Emphasis added.]
DEFENSE ATTORNEY:
I discussed this with her the other day and she indicated she had no objection to me.
THE COURT:
Well, do you want me to go ahead?
DEFENSE ATTORNEY:
She had no objection to you hearing it. What he’s saying is, if you want to transfer to another judge, he will do that.
DEFENDANT CAMPBELL:
No, that’s okay.

Campbell explicitly said she did not want Judge Lofton to recuse. Counsel for Campbell said he and Campbell had talked about this very question a day or so before and Campbell did not object to Judge Lofton hearing the case. Even if Judge Lofton should have been disqualified, Campbell was completely aware of her rights and the circumstances and chose to proceed in his court.

Her complaint about the prior convictions is based on Cox v. Hutto, 589 F.2d 394 (8th Cir. 1979), and McCroskey v. State, 272 Ark. 356, 614 S.W.2d 660 (1981). The difference here is she acknowledged several times that she had four prior convictions. First she did so in her signed plea statement; next, when the trial court asked her if she realized what the sentence could be with four prior felonies, she indicated she understood; and, finally, when she acknowledged in open court that she had gone over her plea statement with counsel and understood it. It is significant that she does not argue at any point that she does not have four prior felony convictions. There is no merit in this point.

Campbell has failed to demonstrate her counsel was ineffective. Indeed, the record reflects that Campbell knowingly decided her own fate. When Judge Lofton offered to disqualify the record reads:

DEFENSE ATTORNEY:
I discussed this with her the other day and she indicated she had no objection to me.
THE COURT:
Well, do you want me to go ahead?
DEFENSE ATTORNEY:
She had no objection to you hearing it. What he’s [Judge Lofton] saying is, if you want to transfer to another judge, he will do that.
DEFENDANT CAMPBELL:
No, that’s okay.
DEFENSE ATTORNEY:
She tells me that she would prefer to stay in this court. I explained to her that you were willing to send it to a different court, but she preferred to stay here.

When she learned the State had withdrawn her offered plea counsel explained:

DEFENSE ATTORNEY:
Here’s what happened, your Honor, day before yesterday, the State made an offer to the defendant of twenty years, with fifteen years suspended. That offer was communicated to her by me. And the defendant indicated to me that she did want to plead guilty, but she wasn’t sure whether she wanted to accept the State’s offer or plead guilty to the Court. I discussed it with her for about an hour and a half and I told Mr. Haynes that there was a good possibility that she would be pleading to the Court. I did not see Mr. Haynes again until today.
The defendant, this morning, indicated to me that, well she wanted to go ahead and take the State’s offer. Mr. McDaniel and myself went over and talked to Mr. Haynes and he said, “Well, we have witnesses here today, so let’s go on and go to trial.”
So, it’s a situation where actually the State never said “well, the offer is withdrawn.” On the other hand, at the same time, they didn’t indicate to me that it would be there just indefinitely.
THE COURT:
Do you have anything, Mr. Prosecutor?
PROSECUTING ATTORNEY:
Your Honor, all I know is that an offer was made and it wasn’t accepted. And we were required to get the witnesses up here and get ready for trial. Mr. Simpson, I think, can verify that the witnesses were here and we were ready to prove the case before he told me for certain that they were going to plead. So, I think thfey were just waiting until the last minute, in hopes that we wouldn’t be able to get all the witnesses up here.
DEFENSE ATTORNEY:
That’s true. Before any final decision was made on her part, she wanted to make sure that the witnesses were here and Mr. McDaniel did tell me that they were and I passed that on to her. And that’s when the final decision was made on her part. [Emphasis added.]

Counsel is presumed effective and the burden is on one attempting to prove otherwise to overcome this presumption and demonstrate by clear and convincing evidence that he was prejudiced by the representation of his counsel to such an extent that he did not receive a fair trial. Fink v. State, 280 Ark. 281, 658 S.W.2d 359 (1983). Since Louise Campbell testified that she was satisfied with her counsel and signed a plea statement to that effect, we find she has not demonstrated ineffective assistance of counsel. Moore v. State, 273 Ark. 231, 617 S.W.2d 855 (1981).

Undoubtedly Campbell thought because Judge Lofton had represented her he would be lenient. He was not. She has no basis at law for any complaint having fully, intelligently and knowingly waived any rights or arguments she may have had.

Affirmed.

Purtle, J., dissents.

John I. Purtle, Justice,

dissenting. I respectfully dissent from the view of my brethren. The present controversy presents a classic case where a trial judge should have refused to hear the plea or to sentence the defendant because of the appearance of impropriety. Even though the appellant and her attorney both expressly agreed that the trial judge should not disqualify, it would have been better for him not to pass sentence on his former client. Appellant and her attorney both thought he would be at least as lenient as the plea bargain offer. They were sadly mistaken. It is not enough that a trial judge be fair and impartial; he must also appear to be such. Farley v. Jester, 257 Ark. 686, 520 S.W.2d 200 (1975). The trial court should have voluntarily disqualified without request by the parties. Edmondson v. Farris, 263 Ark. 505, 565 S.W.2d 617 (1978).

The court stated at the hearing:

Gentlemen, I really feel uncomfortable about it because I am aware of Ms. Campbell’s extensive involvement with the law ... I will go ahead and do what I think the system requires and try to be as honest with Louise as I can under the system ... I will take her guilty plea and satisfy myself with this plea and transfer her to the Fifth Division ... or I’ll transfer the whole thing.

At sentencing, the trial court said:

Ms. Campbell, it would not have made any difference whether you had accepted the State’s recommendation or not. So it’s academic. If you had accepted it last week, I would not have.
Ms. Campbell, you are a thief. The court has known you for a long time and we’re tired of you stealing from us. So, we’re going to put you away so we won’t have to worry about you for a while.

It is hard to keep from wondering how much information about appellant the trial judge obtained as her lawyer and how much of this went into the sentence. Only the present crime and prior convictions would have been before another judge. If the court’s relationship with the appellant was unpleasant the sentence may have been different than if the relationship had been a pleasant one. For appearance only, I think the court erred. I would remand for re-sentencing before another court.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    Dick JARBOE v. E. F. HICKS, Claudie PIPES, and Elwanda BARNUM
    83-156
    660 S.W.2d 930
    Supreme Court of Arkansas
    Opinion delivered November 21, 1983

      Wilson, Grider ér Castleman, by: Murrey L. Grider, for appellant.

      Olmstead ér Choate, Ltd., by: Stephen Choate, for appellees.
   Robert H. Dudley, Justice.

Dick Jarboe, an attorney, and his client, Claudie Pipes, orally entered into a contract for Jarboe to represent the client in a cause of action arising from a disputed real estate title. The consideration for the agreement was a contingent fee of forty percent of any amount of money or realty recovered. Jarboe then filed suit on behalf of his client to set aside the tax title to eighty acres in Cleburne County held the in the name of appellee, E. F. Hicks. Appellee Hicks subsequently filed a counterclaim to quiet title against Jarboe’s client and additionally filed a cross-complaint, also to quiet title, against the client’s mother, Elwanda Barnum. Jarboe filed an answer to the counterclaim on behalf of his client and filed an answer to the cross-complaint on behalf of the client’s mother. The client and her mother then settled the case, without Jarboe’s knowledge, by giving appellee E. F. Hicks a warranty deed to the eighty acres in exchange for $1,000. Jarboe petitioned for an award of an attorney’s fee pursuant to the attorneys’ lien statute, Ark. Stat. Ann. § 25-301 (Repl. 1962). He prayed judgment against the defendant, appellee E. F. Hicks, but did not ask judgment against his client. Appellee Hicks then filed a cross-complaint against Jarboe’s client and her mother. The transcript reflects summonses were issued for the client and her mother but no service of process is shown upon either of them. No waiver of service or entry of appearance is abstracted and obviously they have not cross-appealed. They are not represented on this appeal. The trial court awarded Jarboe a judgment in the amount of $750, jointly and severally, against appellee E. F. Hicks, the client, and her mother. Appellant Jarboe contends that the fee awarded is insufficient. We affirm the trial court. Jurisdiction is in this court under Rule 29 (1) (c) as the case requires an interpretation of the attorneys’ lien statute.

The single point of appeal before us is the sufficiency of the attorney’s fee. We express no opinion on issues which might have been raised by the client or her mother.

After a suit is filed, a client may discuss or settle the cause of action without consulting his attorney, as was done in this case, but if the client does so, the attorney is entitled to a fee. Ark. Stat. Ann. § 25-301 (Repl. 1962); Martin v. Pope, 226 Ark. 522, 290 S.W.2d 849 (1956). In order to collect the fee, the attorney may proceed against the client or he may proceed against all of the parties to the settlement. Ark. Stat. Ann. § 25-301. If the proceeding is against the client the amount of the fee is to be governed by their agreement and, to ensure payment of that fee, the attorney is entitled to a lien upon the client’s cause of action which attaches to any settlement recovered by the client. Ark. Stat. Ann. § 25-301. Baxter Land Co. v. Gibson, 236 Ark. 664, 367 S.W.2d 741 (1963). However, when the attorney proceeds against the other party, as here, the statute contains no provision for a lien upon the cause of action which might attach to a settlement recovered by the other party and the attorney is entitled only to a “reasonable fee or compensation.”

Our prior attorneys’ lien statute contained a similar provision. In discussing a “reasonable fee” we stated:

The statute in question provides for a reasonable fee for the attorney against the parties to said action and that the amount of such fee shall not necessarily be limited to the amount of compromise or settlement between the parties litigant. We think this provision of the statute in question, in providing that the fee be reasonable and not limited to the amount of the compromise or settlement, in effect, provides for a fee on a quantum meruit basis. In determining what would be a reasonable fee we take into consideration the amount of time and labor involved, the skill and ability of the attorneys, and the nature and extent of the litigation.

St. Louis-San Francisco Ry. Co. v. Hurst, 198 Ark. 546, 129 S.W.2d 970 (1939).

The attorney in this case testified that he prepared a complaint, a lis pendens, a reply, an amended reply, an amended counterclaim, and answered some interrogatories. He made two investigative trips to Heber Springs from his home in Walnut Ridge, each being a 200 mile round trip. He spent twenty hours in research and conferred with his client. The stage of taking depositions and final trial preparations had not been reached when Jarboe learned of the settlement. He asked a fee of $4,200.

After the attorney had testified to the amount of time involved and the magnitude of the result he had hoped to achieve, the trial judge asked the attorney what amount he would have received as a fee if the client had consulted him before settling the case. The attorney responded that, had the client insisted on settling the case for only $1,000, his fee would have been $400, forty percent of the $1,000 settlement. The judge then asked the attorney what expenses he had incurred. The attorney responded that he had not kept a record but he estimated at least $300 in expenses without counting the expenses for attending the hearing on fees. The trial judge, obviously relying upon the attorney’s response, found a reasonable fee to be $400 plus costs of approximately $350 and set the total fee at $750. As this Court said in Lilly v. Robinson Mercantile Co., 106 Ark. 571, 153 S.W. 820 (1913):

The court was sitting as a jury in the determination of the matter and took into consideration the facts of the service performed, as well as the interested attorney’s opinion of the value thereof, but he was not required to lay aside his own general knowledge and ideas of such service and the value thereof, and should have applied that knowledge and those ideas to the matters of fact in evidence in determining the weight to be given to the opinion expressed and in no other way could he have arrived at a just conclusion.
It may be conceded that the opinion of the attorney familiar with the subject was entitled to great weight, but it was not to be blindly received, it was to be intelligently examined by the court trying the case in the light of his own general knowledge of the subject of inquiry and should control only as it was found to be reasonable, otherwise the opinion of the witness would be substituted for the judgment of the court.

We cannot say the trial judge abused his discretion in setting the fee at $750.

Affirmed.


author: Steele Hays, Justice. Darrell Hickman, Justice,

text:
    LITTLE ROCK NEWSPAPERS, INC. v. Louis Art DODRILL
    83-101
    660 S.W.2d 933
    Supreme Court of Arkansas
    Opinion delivered November 21, 1983
    [Rehearing denied December 19, 1983.]

      Wright, Lindsey ¿r Jennings, for appellant.

      R. David Lewis, for appellee.
   Steele Hays, Justice.

This is a defamation action brought by Louis Art Dodrill, appellee, against Little Rock Newspapers, appellant, arising out of two newspaper articles that appeared in the Arkansas Democrat in 1976. This case has been before this court previously. In 1975, Dodrill was suspended from the practice of law for one year for unethical conduct and was required to retake the bar examination as a condition for readmittance to the bar. He took the bar exam in August 1976. Following a longstanding practice, a list of examinees who had passed the bar was published in two major Little Rock newspapers after the exam, and Dodrill’s name was not on the list. Normally such an absence would indicate a failure of the exam, but in this case, Dodrill had passed but his name was withheld pending further investigation concerning his readmission to the bar by the Board of Bar Examiners. It was not known until some months later that Dodrill had in fact passed the exam.

The first of the two articles in question came out immediately after the list had appeared and was headlined, “Suspended Little Rock Lawyer Fails Bar Examination.” The article noted that Dodrill had previously been suspended and then stated that he had failed the bar exam. The second article appeared a few days later and concerned a suit that Dodrill had filed against the Bar Examiners to compel them to report his score on the exam. There were two items that Dodrill alleged were libelous, both intimating ineptness or laxness on Dodrill’s part in pursing his own legal remedies. Dodrill then filed a complaint seeking damages against the Arkansas Democrat for libel.

In Dodrill v. Arkansas Democrat Co., 265 Ark. 268, 590 S.W.2d 840 (1979) we heard an appeal of that case from the trial court order sustaining a motion for summary j udgment which dismissed Dodrill’s complaint for damages. The trial court had determined that Dodrill was a public figure and applying the standard required under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), that he had failed to demonstrate actual malice on the part of the Arkansas Democrat. After reviewing the facts of the case and the applicable United States Supreme Court decisions, we reversed and remanded, finding that Dodrill was not a public figure. For guidance of the trial court in further proceedings, we indicated that the negligence standard should measure the publisher’s liability in the case of a private individual. The case was tried and a verdict returned in favor of Dodrill. The jury found the newspaper negligent and awarded Dodrill $40,000 in damages for mental suffering.

There are several issues raised by the appellant, but only one which we find has merit and which is pivotal in the determination of this case. The newspaper argues for reversal that there was no substantial evidence of damage to reputation and absent such a showing, a plaintiff in a defamation suit cannot recover damages for mental suffering alone. We sustain the argument.

It is settled law that damage to reputation is the essence of libel and protection of the reputation is the fundamental concept of the law of defamation. The action turns on whether the communication or publication tends or is reasonably calculated to cause harm to another’s reputation. 50 Am.Jur.2d Libel and Slander §§ 1, 357; Restatement (Second) of Torts § 559; and see generally Defamation, Privacy, and the First Amendment, Duke L.J. 1976:1016. Such injury to the reputation is a prerequisite to making out a case of defamation and an action lacking that claim becomes another cause of action. Prosser states:

. . . [D]efamation is an invasion of the interest in reputation and good name. This is a ‘relational’ interest, since it involves the opinion which others in the community may have, or tend to have, of the plaintiff. Consequently, defamation requires that something be communicated to a third person that may affect that opinion. Derogatory words and insults directed to the plaintiff himself may afford ground for an action for the intentional infliction of mental suffering, but unless they are communicated to another the action cannot be one for defamation, no matter how harrowing they may be to the feelings. Defamation is not concerned with the plaintiff’s own humiliation, wrath or sorrow except as an element of ‘parasitic’ damages attached to an independent cause of action. Prosser, Handbook of the Law of Torts (4th ed. 1971) § HI-

An action for defamation has always required this concept of reputational injury and recovery for mental suffering alone has not been allowed. 53 C.J.S. Libel and Slander, § 243. At common law, publications that were actionable per se always presumed damage to reputation as well as other injuries, including mental suffering. Reese v. Haywood, 235 Ark. 442, 360 S.W.2d 448 (1962); Prosser, supra, § 112. While recovery was allowed in some jurisdictions for mental suffering alone, this was clearly allowed only when the publication was actionable per se. 50 Am.Jur.2d § 358; 90 ALR 1175, 1182-83, 1200-02. Recovery was allowed in such cases only then because damage to reputation, which was essential to recovery, was always presumed. If the publication was not actionable per se, recovery for mental suffering alone was not allowed because of this absence of presumption of damage to reputation. An early case discusses this distinction in recoveries and explains:

The action for slander is given by the law as a remedy for injuries affecting a man’s reputation or good name by malicious, scandalous, and slanderous words. It is injuries affecting the reputation only which are the subject of the action. In the case of slanderous words actionable per se, the law, from their natural and immediate tendency to produce injury, adjudges them to be injurious, though no special loss or damage can be proved. But with regard to words that do not apparently and upon the face of them import such defamation as will of course be inj urious, it is necessary that the plaintiff should aver some particular damages to have happened. . . . There must be some limit to liability for words not actionable per se, both as to the words and the kind of damages. . . . Terwilliger v. Wands, 17 N.Y. 54, 72 Am. Dec. 420 (1858).

Even words that were not actionable per se which required proof of special harm, presumed damage to reputation once that showing was made. Restatement (Second) of Torts § 575; Prosser, supra § 112. That the reputational interest has always been at the heart of any defamation suit is further evidenced by the fact that the defendant has always been allowed to introduce evidence of the plaintiff’s bad reputation to mitigate damages. Simonson v. Lovewell, 118 Ark. 81, 175 S.W. 407 (1915); McDonald v. Louthen, 136 Ark. 368, 206 S.W. 674(1918); 50 Am.Jur.2d § 381, Prosser, supra § 116.

One of the underlying principles of these common law theories of recovery was drastically altered with the United States Supreme Court decision in Gertz v. Robert Welch, 418 U.S. 323 (1974). With Gertz, a change has been worked, at least as against media defendants, on all actions which formerly presumed damages upon establishing defamation per se. No longer may any damages be recovered, absent a showing of actual malice, unless there is proof of some actual injury. Therefore, it follows that damage to reputation cannot be presumed in any case. We do not find, however, that this decision requires a change in the traditional requirement of the reputational element in defamation actions.

The stated purpose in Gertz for the presumption limitation is to prevent the giving of “gratuitous awards of money damages far in excess of any actual injury.” Gertz at 349. The Court states:

The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact.

The spirit of the Gertz decision on this point is clearly one to protect First Amendment rights from unjustifiable and unsubstantiated intrusions. To allow recovery in a defamation action where the primary element of the cause of action is missing not only sets the law of defamation on end, but also substantially undercuts the impact Gertz seeks to effect. The law of defamation has always attempted to balance the tension between the individual’s right to protect his reputation and the right of free speech. To totally change the character of defamation to allow recovery when there has been no loss of the former right, would be an unjustified infringement on the First Amendment.

While Gertz suggests, and Time, Inc. v. Firestone, 424 U.S. 448 (1976) confirms, that the Constitution does not require proof of damages to reputation before recovery for mental suffering can be had, neither does Firestone indicate that such an approach is favored. Indeed, the Firestone decision has been strongly criticized and the opposite approach has been taken in subsequent decisions in other states. See Gobin v. Globe Publ. Co., 232 Kan. 1, 649 P.2d 1239 (1982); France v. St. Clare’s Hospital and Health Center, 82 App.Div.2d 1, 441 N.Y.S.2d 79 (1981). We can find no greater substantiation after Gertz than before that would permit recovery for a defamation action without the element of reputational damage.

We regard the decision we make today as consistent with the spirit of reform Gertz is striving to effectuate in some of the curious complexities of defamation law, and in the legitimate protection of First Amendment principles. At the same time, we preserve the fundamental and traditional concept of the defamation action. To do otherwise would subvert this cause of action and retreat from the principles advanced in Gertz.

In the trial below, Dodrill offered no evidence to show damage to reputation. Neither does a review of the evidence on liability support a finding of actual malice on the part of the newspaper. Absent a showing of actual malice, with no proof of damage to reputation, we must find there was insufficient evidence to go to the jury. On the proof presented, appellant’s motion for a directed verdict should have been granted.

Although appellant asks that this case be reversed and dismissed, we find it appropriate in this situation to remand. We have followed this practice in other situations where we have reversed because of insufficiency of the evidence. We have stated:

. . . Our ordinary procedure in reversing judgments in law cases is to remand for another trial, rather than dismiss the cause of action. It is only where it clearly appears that there can be no recovery that we consider it proper to dismiss the cause. . . . The evidence might well have been much more developed than it was. This Court has held even where a judgment based on a jury verdict is reversed for insufficiency of the evidence to support it, there may be circumstances which justify remanding the case for a new trial. Hayes Bros. Floor Co. v. Carter, Adm’x, 240 Ark. 525, 401 S.W.2d 6 (1966).

In St. L. S.W. Ry. Co. v. Clemons, Etc., 242 Ark. 707, 415 S.W.2d 332 (1967) we said:

The general rule is to remand common law cases for new trial. Only exceptional reasons justify a dismissal. One of the exceptions is an affirmative showing that there can be no recovery. Pennington v. Underwood, 56 Ark. 53, 19 S.W. 108 (1892). There it was said that when a trial record discloses ‘a simple failure of proof, justice would demand that we remand the cause and allow plaintiff an opportunity to supply the defect.’

See also Home Ins. Co. v. Harwell, 263 Ark. 884, 568 S.W.2d 17 (1978); Southwestern Underwriters Inc. v. Miller, 254 Ark. 387, 493 S.W.2d 432 (1973). And we have held this procedure applicable even when no proof was offered on an issue, and where it was demanded by simple justice or where it was not impossible that the deficiency in proof could be supplied. Follet v. Jones, 252 Ark. 950, 481 S.W.2d 713 (1972); South. Farm Bur. Cas. Ins. v. Gottsponer, 245 Ark. 735, 434 S.W.2d 280(1968).

In this case it does not clearly appear from the record that there can be no recovery, nor has there been any affirmative showing that such is the case. The facts, earlier outlined, would not preclude a finding of damage to reputation. Additionally, the law of defamation, never noted for its clarity, has undergone a radical change since Sullivan and its offspring. Uncertainties and ambiguities have arisen as the courts have attempted to give more articulated features to the emerging new form. Questions have been left unanswered and the litigants have frequently been put in the position of having to second guess the determination of a given issue. Consequently, we believe in the posture of this case a remand is the appropriate course.

Turning to the other issues for the guidance of the trial court in later proceedings, the newspaper claimed error below for failure to direct a verdict and refusal of instructions that: Dodrill was a limited purpose public figure, actual malice was not proved, and gross negligence was not proved. These issues are summarily settled by the doctrine of the law of the case. Gibson v. Gibson, 266 Ark. 622, 589 S.W.2d 1 (1979). Although we have not directly addressed the issue, neither do we find that a negligence suit by a private individual must be proved by clear and convincing evidence. We said in Dodrill v. Arkansas Democrat, 265 Ark. 268, 590 S.W.2d 840 (1979) and again in KARK-TV v. Simon and Smith, 280 Ark. 208, 656 S.W.2d 702 (1983), that negligence is the proper standard and we hold to that view. The determination shall be by a preponderance of the evidence.

Appellant maintains the evidence was insufficient because Dodrill failed to provide any expert witness to testify to the standard of care for a publisher. Appellant cites no authority that supports such a requirement for publishers and we are not persuaded by the argument alone. We think the jury is capable of making that determination without being dependent upon expert testimony.

Appellant also urges that the instructions on “actual damages” were given to the jury withoutany guidance from the court as required by Gertz. The instructions given did not simply state that there must be “actual damages” but elaborated on the application of that term and, we think, provided the jury with sufficient guidance to reasonably and fairly assess such damages.

We agree with appellant’s argument that the evidence of malice was not sufficient to support punitive damages. That issue should not have been presented to the jury. Unless evidence of more probative weight is produced on retrial, that issue should not again arise. KARK-TV v. Simon and Smith, supra.

One final issue requires comment — appellant argues the trial court should have permitted the introduction, en mass, of some twelve news articles concerning Dodrill which had appeared in both Little Rock newspapers leading up to the publication of the two articles Dodrill complains of. Evidently, the trial judge refused them on the basis of relevancy. To the extent the articles were offered to prove Dodrill was a limited purpose public figure, the court was correct in refusing them, for reasons we have already stated. Whether the articles are, of themselves, admissible for other purposes we cannot on this record determine. The articles are only generally identified in the abstract and with nothing more, we cannot say whether, on retrial, their relevancy will be such that it would be an abuse of discretion to refuse them. See Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980); Arkansas Power and Light Co. v. Johnson, 260 Ark. 237, 538 S.W.2d 541 (1976).

As the main focus of this opinion has stated, as damage to the plaintiff’s character and reputation is an essential element of proof, evidence of a lack of good character and reputation is admissible on behalf of the defendant.

The case is reversed and remanded for further proceedings not inconsistent with this opinion.

Hickman, J., concurs.

Darrell Hickman, Justice,

concurring. I still adhere to the views expresseed in the first appeal of this case and my dissent on rehearing. See Dodrill v. Arkansas Democrat Co., 265 Ark. 268, 590 S.W.2d 840 (1979). I explained in detail why I thought Dodrill had become a public figure and I am still of that view.

        Monitor Patriot Co. v. Roy, 401 U.S. 265, 275 (1975).

      And see also, Defamation, Privacy and the First Amendment, Duke L.J., 1976:1016.

      For further clarification of the sometimes elusive relationship of reputational injury and mental suffering we quote the following:
      At common law, mental suffering was viewed not as a separate component of damages, but as an integral part of the general damages presumed from the defamation. Wigmore in his famous treatise on evidence states that ‘the injury to feelings which the law of defamation recognizes is not the suffering from the making of the charge, but is that suffering which is caused by other people’s conduct towards [the plaintiff] in consequence of it.’ Thus, the emotional damage is really a reflection of the harm done externally: the plaintiff may think differently of himself as a result of the defamatory utterance. He may suffer harm to dignity, pride and self-esteem. It will be recalled that the common law did not distinguish between defamation which actually harmed reputation and defamation which tended to harm reputation. It follows that the mental suffering element of defamation arises from a fear that others might behave differently toward the defamed person rather than from the certainty that they in fact do behave differently.
      It is difficult to imagine, however, why a plaintiff may think differently of himself when others do not think differently of him. Since the common law presumed harm from defamatory falsehoods, this inconsistency was never manifest. . . . [The question is raised] whether mental injuries unrelated to actual harm to reputation should be compensated for in a defamation action. Mental injuries in such a case seem to arise from publicity and not from the altered conduct of third persons. Thus, an action in privacy appears to be more appropriate. Defamation, Privacy and the First Amendment, Duke L.J. 1976:1016.

      Eaton, The American Law of Defamation Through Gertz v. Robert Welch, Inc. and Beyond: An Analytical Primer, 61 Va. L. Rev. 1347 (1975).

       Prosser, supra § 112.


author: Steele Hays, Justice.

text:
    Russell PATTON v. STATE of Arkansas
    CR 83-92
    660 S.W.2d 939
    Supreme Court of Arkansas
    Opinion delivered November 21, 1983

      William R. Simpson, Jr., Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.

      Steve Clark, Atty. Gen., by: Alice Ann Burns, Deputy Atty. Gen., for appellee.
   Steele Hays, Justice.

Russell Patton was convicted of two counts of aggravated robbery and two counts of theft of property for the robbery of Mr. and Mrs. Preston Watkins on November 19, 1982. The couple was accosted by two men outside their Little Rock motel room and robbed of their cash, credit cards and a watch. Serious head wounds were sustained by Mrs. Watkins when Patton struck her with a pistol.

The jury assessed punishment at seventeen years on each aggravated robbery charge and six years on each theft of property charge. The trial judge ordered the sentences to be served consecutively, to which Patton objects on appeal. It is the only error alleged.

Patton recognizes that whether multiple sentences are served concurrently or consecutively is left to the discretion of the trial judge and the exercise of that discretion will not be altered on appeal unless it is clearly shown to have been abused. Hinton v. State, 260 Ark. 42, 537 S.W.2d 800 (1976).

Patton argues that he was penalized by the triál judge because he first indicated his intention to plead guilty, but later changed his mind and asked for a jury trial, as was his right. He cites this excerpt from the record:

The Court:
[t]his defendant advised this Court that he was going to plead guilty. On the day he was to plead guilty he changed his mind and decided that he wasn’t going to plead guilty and he wanted to take a j ury trial. As far as I am concerned he is a crap shooter and he rolled the dice and he lost. It is my judgment that the punishment that he got is insufficient. I think it should have been higher than that. (T. 167)

Patton contends the case is comparable to Acklin v. State, 270 Ark. 879, 606 S.W.2d 594 (1980), where it was shown the trial judge based his order for consecutive sentences on either of two faulty predicates: because the defendant asked for a jury trial with no real defense, or because it was the “policy” of the judge to impose consecutive sentences. In the first instance, a defendant cannot be penalized for claiming a right given him under the Constitution and, in the second, to adhere to a rigid “policy” obviously removes all consideration of the particular circumstances of each case. In neither instance is discretion reflective.

In Acklin, we found sound discretion to be lacking, but we are not persuaded the trial judge here had the same fixed opinion as in Acklin, in spite of the reference to rolling dice. From other comments in the record it is reasonably clear the trial j udge acted in response to the circumstances of the case. He labelled the crime “absolutely terrible” and observed that the punishment was, in his view, insufficient. On balance, we conclude the appellant has failed to meet the heavy burden of showing the trial judge failed to give due consideration to the exercise of his discretion in the matter of consecutive sentences.

The judgment is affirmed.


author: Per Curiam.

text:
    James FINLEY v. STATE of Arkansas
    661 S.W.2d 358
    Supreme Court of Arkansas
    Opinion delivered November 21, 1983

      Jeff Rosenzweig, for appellant.

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

The appellant filed a motion for a rule on the clerk because the clerk, quite properly, refused to accept the record.

An order extending the time for lodging the transcript was signed by the trial court on the 8th of August, 1983, but it was not entered, that is, filed with the clerk for entry upon the records, until the 10th of August, a day after the transcript was due to be filed.

Counsel mailed the extension order to the judge and the order was mailed by the judge to counsel in Little Rock, rather than to the circuit clerk in Danville as counsel claims it should have been. No doubt if it had been mailed to Danville it would probably have been entered before time expired to file the transcript.

The critical act in such cases is when the order is entered not signed. Cranna v. Long, 225 Ark. 153, 279 S.W.2d 828 (1955); Wilhelm v. McLaughlin, 228 Ark. 582, 309 S.W.2d 203 (1958); Casey v. Pickett, 272 Ark. 521, 615 S.W.2d 359 (1981).

It is the duty of counsel, not the judge, not the clerk, not the reporter, to perfect an appeal. Smith v. State, 275 Ark. 416, 630 S.W.2d 22 (1982); Wilson v. State, 273 Ark. 456, 620 S.W.2d 936 (1981); Melton v. State, 273 Ark. 474, 620 S.W.2d 946 (1981). Counsel must see that orders are entered on time; merely obtaining a signature on an order is not sufficient to extend the time. Counsel must anticipate problems of time and be prepared to do all acts necessary to perfect an appeal and it is no excuse or good cause that a judge, clerk, or reporter miscalculates the time or fails to file an order on time. It is not often the case an official refuses to perform a duty; invariably in such cases counsel expects the officials to do the work of counsel.

In this case it was the lawyer’s duty to see that the order was entered, not the judge’s. Therefore, the request for a rule on the clerk is denied. If counsel will concede it was his fault the order was not entered on time, we will grant the motion for a rule on the clerk in accordance with our Per Curiam opinion dated February 5, 1979, 265 Ark. 964.

Denied.


text:
    Ricky D. LONG v. STATE of Arkansas
    660 S.W.2d 912
    Supreme Court of Arkansas
    Opinion delivered November 21, 1983
    Appellant, pro se.

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

On October 31, 1983, we granted appellant’s pro se motion for belated appeal and directed attorney John Kearney to continue to represent the appellant in the appeal of two convictions. Appellant now asks that Mr. Kearney be relieved as counsel so that he may represent himself on appeal. He also asks for a copy of the records in the cases and for this Court to order the Department of Correction to allow him the use of a typewriter to prepare his briefs.

The motion is denied. Ordinarily, when an appellant makes an intelligent waiver of his right to counsel on appeal and requests permission to proceed pro se, he is allowed to do so. In appellant’s case, however, it appears that he cannot comply with our rule which requires briefs to be typewritten, unless we direct the Department of Correction to provide him with a typewriter, which we decline to do. This Court will not interfere with the policies or operation of the Department of Correction. As we said in Green v. State, 277 Ark. 129, 131, 639 S.W.2d 512 (1982):

A criminal appellant is presented the choice of proceeding with or without an attorney. For those who want an attorney but cannot afford one, counsel is appointed. With the choice of proceeding pro se goes the responsibility of being aware of and complying with procedural rules. A pro se appellant is not in a position superior to other appellants. It is no more a denial of due process for an appellate court to require pro se briefs to be typed than it is for a trial court to require pro se defendants to conduct themselves according to the rules pertaining to trial. There is no constitutional right to file a handwritten brief. If a pro se appellant cannot for some reason use or obtain the use of a typewriter, then he should consider allowing an attorney to perfect the appeal.

Appellant, like all other appellants, must conform to the rules of this Court. If he can state in a subsequent motion for permission to proceed pro se that he can conform to those rules, Mr. Kearney will be relieved as counsel and appellant will be allowed to represent himself.

Motion denied.


author: George Rose Smith, Justice.

text:
    Nell Godley Rose DENT v. Billy F. ROSE and Bobby D. ROSE
    83-171
    661 S.W.2d 361
    Supreme Court of Arkansas
    Opinion delivered November 28, 1983

      Blaine A. Jackson and Ernest G. Lawrence, for appellant.

      Burrow & Sawyer, by: Stephen P. Sawyer, for appellees.
   George Rose Smith, Justice.

Jack Farrell Rose died intestate in 1979, survived by his widow (the appellant) and by two sons (the appellees). In 1982 the sons filed a petition in the administration proceedings, asking for a judgment declaring that the widow is not entitled to dower because the dower statutes in force at Rose’s death were unconstitutional as being discriminatory as between men and women. This appeal by the widow is from a j udgment declaring the dower statutes to be unconstitutinal and denying dower.

The probate judge relied upon our decisions in Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), and two similar cases, all of which involved the right of a widow to renounce her husband’s will and elect to take dower instead. The probate judge did not have the benefit of a case decided more recently, in which we explained that the language in Stokes and similar cases was too broad, in that our earlier dower and curtesy statutes were valid in cases of intestacy, because there was no difference between the dower of a surviving wife and the curtesy of a surviving husband. Beck v. Merritt, 280 Ark. 331, 657 S.W.2d 549 (1983). The appellant is therefore entitled to dower in the present case.

Reversed.


author: George Rose Smith, Judge.

text:
    Michael FIELDS v. STATE of Arkansas
    CR 83-76
    661 S.W.2d 359
    Supreme Court of Arkansas
    Opinion delivered November 28, 1983
    [Rehearing denied January 9, 1984.]

      Felver A. Rowell, Jr., for appellant.

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

      Hollingsworth, J., not participating.

   George Rose Smith, Judge.

Fields was charged with two counts of carnal abuse of a person under fourteen and two counts of incest, in that in September and October, 1982, he had engaged in sexual intercourse or sexual activity with his 13-year-old stepdaughter. Ark. Stat. Ann. §§41-1804 and 41-2403 (Repl. 1977). Under the rape-shield statute the defense proffered evidence at a pretrial hearing that the prosecutrix had engaged in sexual activity with others. The trial court held the evidence inadmissible, finding that its inflammatory or prejudicial nature outweighed its probative value. Section 41-1810.2. This interlocutory appeal under that same section comes to us under Rule 29 (1) (k).

Fields’s proffer of testimony was based on the assumption that the State would be allowed to introduce the report of a doctor who had examined the prosecutrix on the date of the last offense. That report, after reciting that the patient indicated that her stepfather began fondling her at age six and had had intercourse with her since age nine, stated that examination showed only small hymenal ring remnants. It concluded: “[Patient] states that intercourse has probably occurred approximately 100 times. Pelvic exam would indicate that this could be an accurate statement.”

Even if the doctor’s report should somehow be received in evidence at the trial, the proffered proof of the prosecutrix’s alleged or suspected sexual activity in four other instances is still not admissible. This case is governed by our prior holdings under the rape-shield statute, beginning with Duncan v. State, 263 Ark. 242, 565 S.W.2d 1 (1978). In Duncan defense counsel brought into evidence information about the condition and size of the prosecutrix’s vaginal cavity, to show as in the case at bar that she was not a virgin. In sustaining the trial court’s ruling that the defense could not cross-examine the prosecutrix about her prior sexual conduct, we said:

We cannot say from this record that Duncan was prejudiced by the ruling of the court. First of all, virginity is not relevant per se in a rape case. The courts have historically permitted a defendant’s attorney to cross-examine in detail a victim as to her complete sexual history. This information is usually totally irrelevant to the charge of rape. [The rape-shield statute] was obviously designed to limit this type of examination and protect the victim from unnecessary humiliation.

That statement of the law is applicable here. The doctor’s report did show that the prosecutrix was not a virgin and may have had sexual intercourse many times. Even so, proof of her earlier sexual activity was not relevant to the charges of carnal abuse and incest. The trial judge was right in holding that the prejudicial effect of the proffered testimony outweighed whatever slight probative value it might have had.

Affirmed.


author: Darrell Hickman, Justice.

text:
    James W. SCHACHT, Acting Director, Department of Insurance, State of Illinois v. Linda N. GARNER, Insurance Commissioner for the State of Arkansas
    83-244
    661 S.W.2d 361
    Supreme Court of Arkansas
    Opinion delivered November 28, 1983

      Neil F. Hartigan, Illinois Atty. Gen., by: Gerald B. Mullin, Special Asst. Atty. Gen., and Gill, Skokos, Simpson, Buford ir Owen, P.A., by: John W. Fink, for appellant.

      Wood Law Firm, by: Raymond Weber, for appellee.
   Darrell Hickman, Justice.

The Acting Director of the Department of Insurance of the State of Illinois sought to intervene in a suit in Pulaski County concerning the rehabilitation of three insurance companies domiciled in Arkansas. The circuit judge, unable to determine exactly what claim or defense was being advanced, declined to allow intervention, but did not foreclose intervention at a later date.

James W. Schacht, the Acting Director, asserted there were 8,194 policyholders of the three companies who were Illinois residents and their interests needed protection. He also argued that Illinois could be exposed to liability because of an Illinois statute which protects policyholders from defaulting companies. But when the court pressed Schacht to comply with ARCP Rule 24, that is, to state a claim or defense, Schacht could give none. He said: “I don’t know what position [we will have] until we know what the Plan is.”

Rule 24 (c) requires a party seeking intervention to state in a separate pleading the claim or defense to be advanced. This was not done in this case. Essentially the appellant wanted to be a party to keep an eye on the lawsuit; he did not object to reorganization, made no third party complaint, nor did he make any claim.

The judge suggested the motion be held in abeyance until the reorganization plan was submitted, but the appellant formally asked to intervene on the record and the request was denied.

There are two means by which to intervene in a lawsuit: As a matter of right and by permission. The former cannot be denied, but the latter is discretionary, the denial of which will only be reversed if that discretion is abused. The appellant made no case for either. Significantly, the trial judge remarked:

I would suggest we deny your Petition at this time, with an understanding that you will receive a copy, or the Department will receive a copy and at that time, if they feel like they have a position that is opposite that of the Commissioner, then they may want to come in and make that position known as either a Party through Intervention or they can visit with the Commissioner and bring that to her attention before the Plan is brought before the Court for its approval; hearings will be had and I don’t anticipate that there would ever be any way that the State of Illinois would not be able [to] make known to this Court its concern with the actions to be taken by the Court on the Rehabilitation Proposal.
And I appreciate the concern that the Department of Illinois would have on behalf of its policyholders, j us t as I can imagine if the shoe was on the other foot, so to speak, the Commissioner of Insurance would be doing under similar circumstances.

Affirmed.

Hays, J., not participating.


author: John I. Purtle, Justice.

text:
    James Kirk CAMPBELL v. STATE of Arkansas
    CR 83-100
    661 S.W.2d 363
    Supreme Court of Arkansas
    Opinion delivered November 28, 1983

      Wood Law Firm, by: Steven R. Davis, for appellant.

      Steve Clark, Atty. Gen., by: Marci L. Talbot, Asst. Atty. Gen., for appellee.
   John I. Purtle, Justice.

Appellant was convicted of aggravated robbery and rape and sentenced to forty years on each. On appeal it is argued that a custodial confession should have been excluded and that the evidence was insufficient to sustain either conviction. We cannot agree with these arguments.

The crime in this case was committed on June 15,1982. On July 15, 1982, appellant was arrested on warrants issued as a result of informations filed by the prosecuting attorney. His arrest occurred at 11:50 A.M. and his written confession was obtained between 1:30 and 2:40 P.M. of the same day. Appellant was not identified by any of the victims. His custodial statement admitted he was with two joint defendants at the time these crimes occurred but denied he actively participated in the criminal acts. The rape victim stated she was raped by three different persons. The robbery victims all stated the three intruders were each armed with a handgun. All the testimony indicated three young men barged into the victims’ home and robbed the couple and their son. After tying the two men up they then each raped the woman.

First, it is argued the court erred in not suppressing the statement given by the appellant while he was in custody. A custodial statement is considered suspect in an attack upon it and the state has the burden of proving by a preponderance of the evidence that it was a voluntary statement. Harvey v. State, 272 Ark. 19, 611 S.W.2d 762 (1981). This court will not reverse a trial court’s discretionary ruling unless it is clearly against the preponderance of the evidence. Giles v. State, 261 Ark. 413, 549 S.W.2d 479 (1977). The appellant argues his confession was the result of threats, force and intimidation. Two officers testified that he voluntarily executed the waiver of rights form and that his confession was voluntary. We hold the evidence is sufficient to sustain the ruling of the trial court.

Appellant argues that the evidence on each crime was insufficient to support a conviction. If there is substantial evidence to support a conviction we do not reverse. Ford v. State, 276 Ark. 98, 633 S.W.2d 3 (1982). The rape victim testified she recognized the other two defendants and that three different men raped her. The husband and son of the rape victim testified all three men possessed handguns when they were robbed. The appellant admitted he was present with the other two at the time and place of the crimes but simply denied he participated. There was sufficient evidence to support each conviction.

Affirmed.


text:
    Charles AMASON et al v. CITY OF EL DORADO et al
    83-162
    661 S.W.2d 364
    Supreme Court of Arkansas
    Opinion delivered November 28, 1983
    [Rehearing denied January 9, 1984.]

      Vickery ¿r Jones, P.A., for appellants.

      Henry C. Kinslow, City Atty., for appellees.

      William G. Fleming and David White, for amicus curiae Arkansas Municipal League.
   Steele Hays, Justice.

The primary issue here is whether the Arkansas civil service statutes for policemen and firemen require that a vacancy in the office of chief of police must be filled by promotion from within the ranks of the police department. The trial court correctly held that our statutes contain no such requirement.

In January, 1983, the Chief of Police of the City of El Dorado resigned. The El Dorado Civil Service Commission promptly advertised for applicants having “at least ten years experience in law enforcement.” There were six candidates, five of whom were employed by the El Dorado Police Department. After written examinations and oral interviews, the Commission appointed John D. Morgan, the one applicant not connected with the police department.

The remaining applicants filed suit for declaratory judgment in the Union Circuit Court. They were joined by two resident taxpayers and another member of the department, Bill Hickman, who had not applied for the position. Respondents are the City of El Dorado and its Civil Service Commissioners. The Circuit Court upheld the Commission and appellants have appealed to us to hold that the Circuit Court erred in finding the Civil Service Commission did not act arbitrarily in its interpretation of the term “law enforcement,” and did not violate the civil service statutes of Arkansas in hiring Morgan rather than a candidate from within the department. We affirm the Circuit Court.

With respect to the first point, appellants do not claim the civil service statutes require ten years experience in law enforcement, rather, they argue the term “law enforcement experience” used by the Commission in the notices it circulated, should be strictly construed. They point out that Morgan’s employment history included nine years spent as a security officer on a college campus and as a polygraph examiner in private industry, activities which they contend fail to meet a common understanding of the term “law enforcement experience.” Appellants called Mr. Harold Zook, long associated with law enforcement in Arkansas and a Deputy Director of the Arkansas Commission on Law Enforcement Standards and Training. He testified that for purposes of certifying law enforcement officers in Arkansas, recognition is given only to experience with an agency whose primary responsibility is the enforcement of criminal, traffic or highway laws of a state of federal government. But the Civil Service Commission was under no obligation to adopt an identical concept of law enforcement as the Commission on Law Enforcement Standards and Training; it chose to interpret the term broadly rather than narrowly, as it was free to do. Appellants concede Morgan’s credentials are impressive (a bachelor’s degree in criminology and a master’s degree in public administration, coupled with nearly eleven years in the field of law enforcement, broadly defined) and fit within a general understanding of the term “law enforcement.” Appellants did not claim below that the Commission was bound to adhere to Mr. Zook’s standards, rather, the proof was offered as being relevant only to the issue of whether the Commission’s interpretation was unreasonable and, hence, arbitrary. We are unable to say the finding of the trial court to the contrary was clearly erroneous.

Turning to the remaining argument, appellants maintain that Ark. Stat. Ann. § 19-1601.1, et seq. (Repl. 1980) (Civil Service for Police and Fire Departments), requires that except when an emergency exists (which is not an issue here) vacancies must be filled by promoting personnel within the department who have served at leas t one year in a lower rank and who qualify through competitive examination. They cite the 4th and 9th provisions of Section 3 of the act:

4th. For the creation of eligible lists for each rank of employment in said departments in which shall be entered the names of the successful candidates in the order of their standing in the examination. No person shall be eligible for examination for advancement from a lower to a higher rank until he shall have served at least one year in the lower rank except in case of emergency, which emergency shall be decided by the Board of Commissioners. All lists for appointments or promotions as certified by the Board of Civil Service Commissioners shall be and remain in force and effect for the period of one year from the date thereof and at the expiration of said period all right of priority under said lists shall cease.
9th. For promotion based upon open competitive examinations of efficiency, character and conduct, lists shall be created for each rank of service and promotions made therefrom in the same manner as provided for original appointment. An advancement in rank or increase in salary beyond the limits fixed for the grade by the rules of said commission shall constitute a promotion.

But, like the trial court, we are unable to read into those sections the interpretation appellants would have us make. The requirement that a person serve at least one year in a lower rank before becoming eligible for promotion expressly applies to advancement, and we find nothing in the act suggesting that vacancies must be filled only by an advancement of personnel through the ranks. If that interpretation were correct, no one would be eligible for an opening unless he had served a year at a lower rank, meaning that no one could be hired from outside the ranks other than in an emergency. We must reject that interpretation, not only because it is implausible, but because the statutes clearly contemplate otherwise by making a distinction between persons who are promoted and those who are appointed. (See subsections 4th, 6th, 7th and 9th) of Section 3 (Ark. Stat. Ann. § 19-1603).

Moreover, Section 14 of the Rules and Regulations of the El Dorado Civil Service Commission, adopted soon after the mandate of the original 1933 act, provides that the Commission shall have the right to prescribe qualifications for applicants desiring to be employed or promoted to the position of chief of the El Dorado Police Department. Of course, the Civil Service Commission could not validly adopt a regulation which conflicts with provisions of the civil service statutes, however, as we have said, nothing in the statute renders that regulation ineffectual.

Appellants contend that Connor v. Ricks, Mayor, 213 Ark. 768, 212 S.W.2d 552 (1948) supports their position. We cannot agree that Connor settles the issue presented here. The dispute in Connor arose from the long failure of the City of Hot Springs to appoint a Civil Service Commission in accordance with the mandate of the act, and was clouded by the fact that the Commission there relied on the emergency provision of the act in appointing a police chief. The case does not hold that an emergency must exist before a police chief can be appointed from outside the ranks, as that issue was not raised or answered in the Connor decision.

An unquestioned principle underlies every dispute which centers on the construction of statutes — what was the legislative intent behind the wording used in particular enactments. Hice v. State, 268 Ark. 57, 593 S.W.2d 169 (1980); Holt v. Howard, 206 Ark. 337, 175 S.W.2d 384 (1943). When that intent is obscure, as sometimes happens, the dicta of many cases make note of the fact that if the intent were as urged, it would have been a simple matter for the framers of the act to have said so. Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979); Raines v. Bolick, 183 Ark. 832, 39 S.W.2d 309 (1931). That comment is appropriate here and inasmuch as the wording used in the civil service statutes fails to intimate that hiring at all levels must be internal, we are left to conclude that the appellants have failed to demonstrate that the trial court erred.

Appellants suggest that the “spoils system”, once so familiar to the American political scene, would be served if the El Dorado Civil Service Commission were permitted to hire its chief from outside the department, in that the division of spoils would merely be shifted from a mayor to a civil service commission. But there can be no real fear of that. Civil service commissioners are not elected and are not beholden to a cadre of supporters. They serve by appointment for a fixed term, without pay, and by and large they accept the burden of this particular service as a matter of civic duty. Balanced against that danger is the desirability of selecting the most capable individual to be found, so long as that candidate qualifies under the civil service procedures. In this instance, the former policy needs must yield to the latter, since the statutes do not prescribe otherwise. While experience in the particular police department is a significant consideration, it is not alone determinative, or the act would contain that simple proviso.

Appellants’ argument that the emergency section is rendered useless if the trial court’s interpretation prevails ignores a number of contrary instances. For example: a candidate already employed by the department, who was otherwise qualified, could not be promoted if he had served less than a year in his present rank, absent an emergency.

For the reasons stated, the trial court is affirmed.


author: Richard B. Adkisson, Chief Justice.

text:
    INTER-SPORT, INC. v. Steve WILSON and Vicki WILSON
    83-170
    661 S.W.2d 367
    Supreme Court of Arkansas
    Opinion delivered December 5, 1983

      Charles Darwin Davidson, P.A., by: Stephen Gershner, for appellant.

      Jim O’Hara, for appellees.
   Richard B. Adkisson, Chief Justice.

This case was certified to this court from the Arkansas Court of Appeals pursuant to Ark. Sup. Ct. R. 29 (4) for a determination of a question of usury which we do not reach since the issue was waived by the parties for purposes of appeal by their failure to object when the trial court declined to render a ruling thereon.

On June 18, 1976, 3-W Enterprises, Inc. (hereinafter 3-W) entered into a franchise agreement with appellant, Inter-Sport, Inc. As a part of that franchise agreement, appellees, Steve Wilson and Vicki Wilson, his wife, executed a guaranty regarding payment of royalties arising from the agreement.

On May 10,1981,3-W and Inter-Sport, Inc. entered into a compromise agreement, evidenced by a promissory note, reducing to a sum certain the amount due under the franchise agreement. The issue on appeal is whether the execution of the promissory note discharged appellee’s personal liability on the guaranty agreement.

Arkansas has adopted the well-settled principle of law of guaranty that a material alteration in the obligation assumed, made without the assent of the guarantor, discharges him from liability as guarantor. Moore v. 1st Nat’l Bk. of Hot Springs, 3 Ark. App. 146, 623 S.W.2d 530 (1981). A guarantor is not liable where the underlying agreement was changed in form or in substance. Spears v. El Dorado Foundry Machine & Supply Co., 242 Ark. 590, 414 S.W.2d 622 (1967). Guarantors are entitled to a strict construction of their undertaking and cannot be held liable beyond the strict terms of their contract. National Bank of Eastern Arkansas v. Collins, 236 Ark. 822, 370 S.W.2d 91 (1963). According to the better rule of law, a material alteration in or departure from the contract of guaranty, without the guarantor’s consent, will discharge him, whether or not he is prejudiced thereby. For discussion see 38 C.J.S. Guaranty § 74 (1943).

Here, the underlying agreement between appellees and Inter-Sport, Inc. was a guaranty of the franchise agreement. The subsequent execution of the promissory note from 3-W to Inter-Sport, Inc. in satisfaction of sums owed on the franchise agreement constituted a material change in both the form and substance of the original understanding and, therefore, extinguishes any liability the appellees may have had as guarantors of the franchise agreement. See Spears v. El Dorado Foundry, supra, to the same effect, where promissory notes were substituted for an open account.

Affirmed.


text:
    Thomas B. GOLDSBY, Jr. v. Jake BRICK & Dave THOMAS
    83-188
    661 S.W.2d 368
    Supreme Court of Arkansas
    Opinion delivered December 5, 1983

      Bill W. Bristow, P.A., of Seay & Bristow, for appellant.

      Rubens ir Rubens, by: Kent J. Rubens, and Skillman & Durrett, by: Vincent E. Skillman, Jr., for appellees.
   Darrell Hickman, Justice.

This is a suit challenging an apportionment plan for the Quorum Court Districts of Crittenden County, although the appellant, Thomas B. Goldsby, Jr., insists the case cannot be so treated. Goldsby, a former member of the Crittenden County Election Commission, contends that a plan for apportionment that was published varies significantly from the plan that was in fact agreed upon by the Commission. The appellees are the other members of the Commission. The trial court refused to grant mandamus sought by Goldsby to require the Commission to formally meet again and either adopt the plan Goldsby argues was originally agreed upon or at least legally adopt the plan that was filed and published. The trial judge granted the appellees’ motion for summary judgment, finding that Goldsby waited over thirty days after the plan was adopted and published before suit was filed. We affirm the court’s decision.

No doubt Goldsby waited over thirty days after the plan was filed and published before he brought this suit — he concedes that. (The record indicates the plan published was also recorded in the county clerk’s office as required by Ark. Stat. Ann. § 17-3405 (Repl. 1980). There is no suggestion that was not done.) Ark. Stat. Ann. § 17-3406 (Repl. 1980), provides that any contest to an apportionment of the quorum court districts must be brought within thirty days following publication of the plan in a newspaper of general circulation. The plan was published in the Evening Times on February 4,1982. According to Goldsby he first learned of the published plan on March 25, 1982, and wrote the other commissioners. He filed this suit on May 3, 1982.

Goldsby contends that this is not a challenge to the plan. He argues the three commissioners met several times and agreed February 2, 1982, on a plan that would not place any incumbent quorum court members in a district of another incumbent member. Later he said he learned the plan actually filed and published was not in fact what the commissioners agreed upon. He insists that his protest to that action is not a contest to the plan.

We cannot agree. He does not contend the plan was not filed and published with the county court as required by statute. To seek to set aside a plan filed and published in accordance with statutorily approved procedures is a contest in the sense contemplated by Ark. Stat. Ann. § 17-3406, which imposes a thirty day time limit on such suits.

Affirmed.


text:
    SHELTER MUTUAL INSURANCE CO. and James WHITTENBURG v. Honorable Van B. TAYLOR, Conway County Chancellor and Francis Gay EMBRY
    83-175
    661 S.W.2d 369
    Supreme Court of Arkansas
    Opinion delivered December 5, 1983

      Matthews if Sanders, by: Roy Gene Sanders, for petitioners.

      Gordon if Gordon, P.A., by: Allen Gordon, for respondents.
   John I. Purtle, Justice.

This is an original action in which the petitioners seek to prohibit the Conway County Chancery Court from proceeding with an action to reform an insurance policy. The selling agent is a resident of Pope County, Arkansas and maintains an office for the insurance company there. The insurance company is a foreign corporation with its registered agent for service of process and principal place of business in Pulaski County. The policyholder is a resident of Conway County. Petitioners contend that Conway County Chancery Court does not provide the proper venue to maintain the action to reform the insurance contract. We think petitioners are correct and grant the writ.

The policyholder argues Ark. Stat. Ann. § 66-3234 (Repl. 1980) is authority for maintaining the action in Conway County Chancery Court. This statute allows a policyholder to maintain an action in the county of his residence when the action is "against an insurer as to a loss occurring or benefits or rights provided under an insurance policy ...” The answer to this allegation is that the action commenced in Conway County is not an action for loss or benefits under the policy. It is admitted that the policy did not provide coverage for loss by floods. The suit was commenced for the purpose of reforming the contract to provide for flood coverage and for damages after the contract is reformed.

We granted a writ of prohibition in a similar factual situation in the case of American Republic Life Ins. Co. v. Cummings, Judge, 218 Ark. 888, 239 S.W.2d 10 (1951). The wording of the statute has changed but Republic is still good law. There we held that a suit to recover premium and penalty was not an action on the policy for loss.

The action in Conway County Chancery Court is an action on contract, thus venue is governed by our general venue statute, Ark. Stat. Ann. § 27-613 (Repl. 1979). This statute grants venue to any county in which a defendant, or one of several defendants, resides, or is summoned. Neither the insurer nor its agent was summoned in Conway County nor did either of them reside therein.

We have previously held that venue or lack of it is a proper subject for a writ of prohibition. Tucker Enterprises, Inc. v. Hartje, Judge, 278 Ark. 320, 650 S.W.2d 559 (1983). In treating the subj ect of venue and the application of Árk. S tat. Ann. § 27-613 we have held that when a complaint asserts both local and transitory causes of action venue is determined by the principal purpose of object of the complaint. Atkins Pickle Co., Inc. v. Burrough-Uerling-Brasuell Consulting Engineers, Inc., 275 Ark. 135, 628 S.W.2d 9 (1982). An action for damages resulting from breach of contract cannot be maintained in a county when the only connection with that county is the residence of the plaintiff. Beatty v. Ponder, Judge, 278 Ark. 41, 642 S.W.2d 891 (1982).

Under the undisputed facts of this case, the writ is granted.

Hays, J., concurs.


text:
    Julian ABRAM et al v. CITY OF FAYETTEVILLE, Arkansas
    83-183
    661 S.W.2d 371
    Supreme Court of Arkansas
    Opinion delivered December 5, 1983
    [Rehearing denied January 9, 1984.]

      Jones ir Segers, by: Joseph Wm. Segers, Jr., for appellants.

      James N. McCord, City Atty., for appellee.
   Robert H. Dudley, Justice.

The issue on appeal is whether either the Free Exercise Clause of the First Amendment or the Religious Liberty Section of the Constitution of Arkansas, or both, authorize a church to operate a parochial school in defiance of a municipal zoning ordinance. The trial court held that the ordinance does not violate the church members’ liberty. We affirm. Jurisdiction to decide this constitutional issue is in the Supreme Court. Rule 29(1) (a).

On April 25,1980, the appellant, the Mission Boulevard Baptist Church, submitted its application for a conditional use permit to authorize the construction of a church on its property, which is located in a R-l, or single family residential, zoning district. On May 12,1980, the Fayetteville Planning Commission granted appellant church a conditional use permit for the operation of a church. Under the language of the ordinance, both a church and a school are conditional uses in a R-l district and both must be approved by the planning commission. On May 22, 1980, the city planning administrator, by letter, advised the pastor of appellant church that uses such as kindergarten, nursery school, or grade school had not been approved by the commission and that such uses would require the approval of the planning commission. The building permits issued to appellant each stated: “This is to certify that a building permit is issued for erecting a church ...” and “. . . not approved for use as a parochial school.” The appellant church has not applied for a conditional use permit to construct a school and has not sought approval for the operation of a school.

In September, 1981, appellant opened a school which the trial court found to be “nothing more or less than a school of general curriculum, conducted and taught on a regular hourly and daily basis, comparable in all respects to the public schools.” The trial court enjoined appellants from operating a parochial school on the property unless a conditional use permit was obtained from the planning commission.

The appellants contend that the First Amendment to the Constitution of the United States and Article Two, Section Twenty-four, of the Constitution of Arkansas guarantee the right to operate a parochial school as a tenet of religious belief regardless of zoning restrictions. They argue that a parochial school is an integral and inseparable part of the function of a church, and it is not within the province of á municipality to determine the substance of religious activity.

We do not find it necessary to give a complete definition of the word “church.” We decide only that “church” in a zoning ordinance connotes its usual and ordinary meaning in light of the entire ordinance and its purposes. The ordinance clearly manifests the city’s legislative decision to use different criteria when considering an application for a conditional use permit for a church than when considering such a permit for a school. The ordinance is intended as a land use regulation and the distinction between churches and schools is valid. A school, operating from 8:30 a.m. to 3:15 p.m. each week day, is a more intensive use of land than a church. There is no constitutional prohibition against different requirements for different uses.

The appellants’ argument ignores the very real distinction between an infringement upon a religious belief, which is absolutely prohibited, and a limitation upon a religious action, which is subject to reasonable laws designed to protect the public health or welfare. Those laws may limit the time, place, and manner of action. See Damascus Community Church v. Clackamas County, 610 P. 2d 273 (Or. App. 1980). Because of this distinction, the Supreme Court of the United States has repeatedly dismissed, for want of a substantial federal question, appeals from state court decisions such as the one included here. For a listing of the appeals so dismissed, see Seward Chapel, Inc. v. City of Seward, 655 P.2d 1293, 1300 (Alaska 1982).

If appellants’ reasoning was followed to its extreme, the actions which could come within the purview of constitutionally protected religious acts would be limited only by imagination.

Here, the zoning ordinance does not force members of appellant church to set aside the religious belief that their children should be educated in a parochial school. Instead, the ordinance accommodates that belief by making provision for conditional use permits for the operation of parochial schools in approved areas. However, the opening of a parochial school falls within the ambit of a religious action and is subject to reasonable limitation upon the time, place, and manner of operation. As a general rule land use regulation by zoning may be a reasonable limitation upon the place of operation of a parochial school. That is the extent of our decision. We do not decide whether the specific ordinance now before us is unreasonable as applied to appellants, because the appellants have never sought approval to open the school pursuant to the ordinance. Thus, action favorable to appellants is still possible under the ordinance.

The appellants’ argument also ignores its tacit accord with the city. The validity of the zoning ordinance was recognized by appellant church when it applied for a use permit to construct the buildings which it labeled a ‘ ‘church. ’ ’ It was notified in writing by the planning director that a parochial school would not be permitted. The building permits provide: “This is to certify that a building permit is issued for erecting a church ...” and “. . . not approved for use as a parochial school.” On the basis of the obvious concurrence of understanding, the buildings were constructed. Subsequently, appellant church opened the school. Thus, any inconvenience or economic burden upon the appellant church was caused solely by its own choice to vitiate its tacit accord with the city.

We accordingly conclude that, under the ordinance, a conditional use permit for a church does not automatically authorize the operation of a full-time parochial school. Accord, see e.g., Seward Chapel, Inc. v. City of Seward, supra; Damascus Community Church v. Clackamas County, supra. Contra, see e.g., Board of Zoning Appeals v. Decatur, Indiana Company of Jehovah’s Witnesses, 233 Ind. 83, 117 N.E.2d 115 (1954); Jewish Reconstructionist Synagogue of North Shore, Inc. v. Incorporated Village of Roslyn Harbor, 38 N.Y.2d 283, 379 N.Y.S.2d 747, 342 N.E.2d 534 (1975).

Affirmed.


text:
    Daniel REDMON v. STATE of Arkansas
    660 S.W.2d 940
    Supreme Court of Arkansas
    Opinion delivered December 5, 1983

      Wayne A. Gruber and Jim F. A kins, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Appellant, Daniel Redmon, by his attorneys, Wayne A. Gruber and Jim F. Akins, has filed a motion for rule on the clerk.

The motion admits that the record was not timely filed and it was no fault of the appellant. His attorneys admit that the record was tendered late due to a mistake on their part.

We find that such an error, admittedly made by the attorneys for a criminal defendant, is good cause to grant the motion. See our Per Curiam opinion dated February 5,1979, In Re: Belated Appeals in Criminal Cases.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


text:
    Robert TROUTT v. STATE of Arkansas
    660 S.W.2d 941
    Supreme Court of Arkansas
    Opinion delivered December 5, 1983

      Harmon ér Wharton, by: William L. Wharton, for appellant.

      Steve Clark, Atty. Gen., by: Theodore Holder, Asst. Atty. Gen., for appellee.
   Per Curiam.

Robert Troutt, by one of his attorneys, William L. Wharton, filed a motion for a rule on the clerk and to stay mandate. William L. Wharton filed an affidavit admitting the record was tendered late due to a mistake on his part in figuring the due date.

As stated in our per curiam of February 5,1979,265 Ark. 964, the mistake of an attorney in a criminal case is good cause when the attorney admits, by affidavit, that it was his mistake in figuring the due date.

The motion to withdraw mandate is denied because the mandate has not been handed down.

A copy of this opinion will be forwarded to the Committee on Professional Conduct.


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    OVERTON CONSTRUCTION, INC. Michael J. OVERTON and Vickie OVERTON v. FIRST STATE BANK, Springdale Dwain A. NEWMAN
    83-168
    662 S.W.2d 470
    Supreme Court of Arkansas
    Opinion delivered December 12, 1983
    [Rehearing denied January 16, 1984.]

      Lisle ¿r Watkins, for appellants.

      Herdlinger, Jacoway ir Stanley, P.A., by: Roy E. Stanley, for appellee First State Bank of Springdale.

      Davis, Cox & Wright, by: Constance G. Clark, for appellee Newman.
   Richard B. Adkisson, Chief Justice.

Appellant, Over-ton Construction, Inc., by its president, Michael J. Overton, and its secretary, Vickie Overton, executed to appellee, First State Bank, Springdale, Arkansas, a promissory note dated November 29, 1980, in the amount of $154,161.90, bearing interest at a rate of First State Bank’s floating prime plus 2%, payable on demand, or if no demand, on or before November 29, 1981, and secured by residential lots. The note was a renewal of a previous loan guaranteed by appellee, Dwain A. Newman. The Washington County Chancery Court found the note not usurious under the governing federal law, the Monetary Control Act. On appeal appellant contends: 1) that § 501 of the Monetary Control Act did not apply to the note; 2) that, under § 511 of the Monetary Control Act, the interest agreed upon exceeded the permissible limit; and 3) that Dwain Newman was not entitled to judgment against the Overtons for any amount he would be required to pay as a guarantor.

First, appellants Overton argue that the chancellor erred in finding the note not usurious under § 501 because appellee bank, in waiting until after trial to raise the issue of the application of § 501, failed to give notice of reliance on foreign law in compliance with ARCP Rule 44.1. We do not agree. ARCP Rule 44.1 requires that “a party who inténds to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this State shall give notice in his pleadings or other reasonable written notice.” Deposit Guar. Nat’l Bank v. River Valley Co., 247 Ark. 226, 444 S.W.2d 880 (1969). Under the circumstances of this case, where the parties tried the case with the knowledge that the Monetary Control Act was the applicable law, it was within the discretion of the trial court to accept as reasonable the notice given before judgment.

Appellants Overton further argue that appellee Bank failed to present proof that the bank was federally insured. In order for a loan to fall within § 501 it must 1) be a first lien on residential property, 2) be made after March 31, 1980, and 3) be a “federally related loan.” 12 U.S.C. § 1735f-7 (Supp. 1983). One requirement of a “federally related mortgage” is that it must be a loan made in whole or in part by a lender whose deposits are insured by any agency of the Federal Government or made in whole or in part by any lender which is itself regulated by an agency of the Federal Government. There is no evidence in the record that appellee Bank’s deposits are insured by the Federal Government. Flowever, there is indication in the record that all of the parties proceeded with the trial of this case with the knowledge that First State Bank was a member of the Federal Deposit Insurance Corporation. Since the plaintiff failed to specifically establish this fact, this case should be remanded to allow proof and a final resolution of the issue.

We will not reach the merits of the appellants’ second argument against the applicability of § 511 until it is established whether or not § 501 is controlling.

Appellants Overton third argument is that the chancellor erred in finding Dwain Newman entitled to a judgment over against the Overtons for all amounts Newman would be required to pay in excess of his pro rata share. We agree. The record reflects that Newman, as did the Overtons, executed with appellee Bank a continuing personal guaranty for the loan here in question between the appellee Bank and Overton Construction, Inc. Newman’s continuing guaranty was identical to those executed by the Overtons. Dwain Newman, Michael Overton, and Vickie Overton were co-guarantors, each responsible for bearing their pro rata share of any judgment that any of them might be required to pay as a result of the guaranty agreement.

Accordingly we affirm in part, reverse in part, and remand for judgment to be entered consistent with this opinion.


author: George Rose Smith, Justice. John I. Purtle, Justice,

text:
    Judy C. PETTY v. Charlotte S. CHANEY, Executrix
    83-173
    661 S.W.2d 373
    Supreme Court of Arkansas
    Opinion delivered December 12, 1983

      Howell, Price ir Trice, P.A., by: Ronald A. Hope, for appellant.

      H. Clay Moore, for appellee.
   George Rose Smith, Justice.

The appellant’s father, John T. Chaney, died testate in 1981. The appellant, who was not mentioned or provided for by name in her father’s will, seeks to share in the estate as a child whom the testator omitted “to mention or profide for, either specifically or as a member of a class.” Ark. Stat. Ann. § 60-507 (b) (Repl. 1971). We agree with the probate judge’s conclusion that the appellant was sufficiently mentioned or provided for in that paragraph of the will creating a trust for the testator’s “descendants.” Our jurisdiction is under Rule 29 (1) (c) and (P).

Chaney was survived by his wife and her three children (his stepchildren), and by one son and one daughter, the appellant. Chaney’s will first left to his wife certain personal property and enough other property to qualify for the marital deduction under the estate tax laws. The rest of the estate was left in trust, with the trustee to distribute “to my wife and my descendants from the income and pricipal of the trust such amounts as are necessary, when added to the funds reasonably available to them ... to provide for their health, support and maintenance, to the extent reasonably possible, in accordance with the standard of living they enjoyed at the time of my death.” Upon the widow’s death the trust is to terminate and the trust property to be distributed in equal shares to the testator’s son, his granddaughter (the appellant’s daughter), and the three stepchildren, all those distributees being named somewhere in the will.

Before the enactment of the Probate Code in 1949, our statute required the testator “to mention the name of a child, if living.” Pope’s Digest, § 14525 (1937). Under that statute we said that the only requirement was that the testator mention the name of his child, the object of the statute not being to secure equality of distribution of the estate or to compel the testator to make a substantial provision for his children. Culp v. Culp, 206 Ark. 875, 178 S.W.2d 52 (1944). We went on to say that the object of the statute was “to prevent injustice to a child or descendant from occurring by reason of the forgetfulness of a testator who might, at the time of making his will, overlook the fact he had such child or descendant.” In an earlier case we had held it to be enough for the testator to refer to his children as a class. Brown v. Nelms, 86 Ark. 368, 112 S.W. 373 (1908).

The Probate Code clarified the statute and widened the testator’s choices by stating that he might mention or provide for the child, either specifically or as a member of a class. § 60-507 (c), supra. The appellant was not mentioned by name, but she concedes in her brief that as a descendant of the testator she will be entitled to assistance from the income and principal of the trust if she suffers financial reverses during the lifetime of her father’s widow.

Whether the word “descendants” as a description of the beneficiaries of the trust sufficiently describes a class within the meaning of the statute is to be determined by a consideration of the will as a whole. The appellant cites our recent holding in Robinson v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981), as being “directly in point,” but we find little similarity between that case and this one. There the will made no possible reference to the testatrix’s two sons except in a residuary provision that if the testatrix’s four named recipients of the estate did not survive her, then the estate would pass to the persons entitled to it under the laws of descent and distribution of the State of Missouri. We held that such a general reference to undesignated persons did not show that the testatrix had her sons in mind. Here, by contrast, the will specifically referred to the testator’s descendants, a limited class consisting, as far as the record shows, of only three persons: Chaney’s son, daughter, and granddaughter. Moreover, the will referred to the trust as the John T. Chaney Family Trust, and it was a family trust, providing assistance only for Chaney’s wife and his own descendants, to the exclusion of his stepchildren. Thus it cannot be doubted that Chaney understood the difference between his descendants and his stepchildren.

Finally, the Probate Code, unlike our earlier statute, excludes from the definition of a pretermitted child one who has been “provided for” in the will, either specifically or as a member of a class. It cannot be doubted that the appellant was provided for as a member of the class of descendants, as she concedes. That means that if the adverse circumstances contemplated by the will should occur she might conceivably be entitled to all the trust property, to the exclusion of the other beneficiaries. Thus we cannot sustain the appellant’s argument without disregarding the change made by the Probate Code. We conclude that the probate judge properly construed the Code and in doing so reached a just result.

Affirmed.

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

John I. Purtle, Justice,

dissenting. I agree with the majority in interpreting the law in this case but I disagree as to the conclusions reached based upon the particular facts of this case. A paragraph in the decedent’s will is entitled identification. In the identification article the decedent identifies his wife, his son and his daughter’s child (granddaughter). There is absolutely no reference to the appellant. The will subsequently established a family trust during the widow’s lifetime. The trustee was granted authority to make funds available from the family trust to any of decedent’s descendants as necessary to enable the descendants to maintain their status in accordance with the standard of living enjoyed by them at the time of decedent’s death. Upon the death of the widow the proceeds of the trust would be distributed to decedent’s named child and stepchildren as well as his granddaughter (appellant’s daughter).

The trust was not established for the benefit of any class. Appellant was not mentioned as a beneficiary or as a contingent beneficiary. The likelihood of appellant receiving any benefits from the trust was apparently remote. In fact she has not received any benefits from the trust. Being neither entitled to benefits from the trust nor named in the will I am of the opinion that she is clearly a pretermitted child.

I agree with appellant that Robinson, Adm’r v. Mays, 271 Ark. 818, 610 S.W.2d 885 (1981) is dispositive of this case. In Robinson there was a contingency that the pretermitted children would inherit if none of the devisees survived. That contingency is no more probable than is the one in the present case. We upheld the ruling of the trial court that the two sons in Robinson were pretermitted in accordance with Ark. Stat. Ann. § 60-507 (b) (Repl. 1971). In Robinson we stated:

Thus, where the testator fails to mention children or provide for them as members of a class, it will be presumed that the omission was unintentional, no contrary intent appearing in the will itself. In Cockrill v. Armstrong, 31 Ark. 580 (1876), the presumption is described in these terms:
So strong is the presumption that a father would not intentionally omit to provide for all his children, that in case the name of one or more of the children is left out of the will, by statute it is held to be an unintentional oversight, and the law brings them within the provisions of the will, and makes them joint heirs in the inheritance.

If Cockrill was the law when we decided Robinson in 1981, it is still the law. Therefore, I would hold that the appellant is a pretermitted child.

Adkisson, C.J., joins in this dissent.