author: Steele Hays, Justice. John I. Turtle, Justice,

text:
    MARK TWAIN LIFE INSURANCE CORPORATION v. Charles W. CORY and Doris Stivers CORY, His Wife
    84-31
    670 S.W.2d 809
    Supreme Court of Arkansas
    Opinion delivered June 18, 1984

      Davidson, Horne, Hollingswsorth, Arnold & Grobmyer, A Professional Association, by: A lian W. Horne, for appellant.

      Friday, Eldredge ér Clark, by: John Dewey Watson, for appellees.
   Steele Hays, Justice.

This appeal presents the question of what constitutes a previous filing of the same suit between the same parties in the face of a motion to dismiss the complaint pursuant to ARCP 12(b)(8).

The action began as a claim under an accidental death insurance policy by the appellees, Charles and Doris Cory, parents and beneficiaries of the deceased, against Mark Twain Life Insurance Corporation, appellant. The suit was first filed on January 20, 1980 in Pulaski Circuit Court. Under the assumption that proper venue was in Saline County, the suit was voluntarily dismissed and refiled in Saline Circuit Court on February 29, 1980. The issue of venue was raised by appellant’s response, stating that under Ark. Stat. Ann. § 66-32 34, venue was proper where the insured died or resided, which was Pulaski County. Appellees determined that there was no procedure in civil law for a change of venue and recognized that under ARCP 41, a second dismissal would be an adjudication on the merits, in the absence of an agreement of both parties. Appellees were not able to get such an agreement from the appellant, so they permitted the case to remain on the Saline County docket and refiled in Pulaski County. The appellant moved to have the case dismissed under ARCP 12(b)(8) due to the pendency of the same action in Saline County. The judge denied the motion and the case went to trial, resulting in a verdict in favor of the appellees on the policy. On this appeal, we reverse.

Appellant’s argument that another suit pending under ARCP 12(b)(8) requires dismissal is countered by three basic contentions from appellees: 1) The suit in Saline County was not pending because it was never properly commenced pursuant to ARCP 3 that requires the complaint to be filed with the clerk of the proper court; 2) no valid judgment could be rendered against appellant in Saline County, thus no ground existed for the contention that a prior action was pending; and 3) appellant waived its defense under ARCP 12(b)(8) by claiming Saline County was not the proper venue. Appellees’ first two points are interrelated and will be addressed together.

Appellees’ assertion that the suit was not properly commenced and that under some circumstances lack of proper venue will invalidate a judgment is not without substance, but the facts of this case dictate a different conclusion. The rule appellees rely on provides:

The rule that a second action may not be abated when the first court lacks jurisdiction is properly applied only where, because of defective process or the institution of the first action in a court having no jurisdiction of the cause of action, or other like reason on which the validity of the proceeding depends, the first proceeding is void on its face, or so defective on its face that a legal recovery cannot be had therein. 1 Am. Jur. 2d Abatement, Survival, Revival § 16.

However, it is the general rule that a judgent is not invalidated if tried in an improper county unless there is something in the statute to indicate that its requirements are jurisdictional. 77 Am. Jur. 2d, Venue § 45. While jurisdiction is the power and authority of the court to act, venue is the place where the power to adjudicate is to be exercised. Requirements of venue are grounded in convenience to the litigants and venue is a procedural question, not a jurisdictional one. 77 Am. Jur. 2d Venue § 1; 92 C.J.S. Venue § 75 and see Ozark Supply Co. v. Glass, 261 Ark. 750, 552 S.W.2d 1 (1977). There are instances where venue will go to subject matter jurisdiction, as in local actions, see Bruce v. Street, 206 Ark. 1013, 178 S.W.2d 489 (1944) or to personal jurisdiction, see Universal C.I.T. Credit Corp. v. Troutt, 235 Ark. 238, 357 S.W.2d 507 (1962). In those cases where venue goes to the jurisdiction of the person, absent an objection to venue, a court has the power to render a judgment binding on the parties. See Gland-O-Lac v. Creekmore, 230 Ark. 919, 327 S.W.2d 558 (1959). In contrast, venue in § 66-3234 clearly does not confer any jurisdiction as in the above cases, but is grounded in the convenience of the litigants, in this instance, policy decisions dictating the convenience of the plaintiff and not the defendant. See generally Ozark Supply Co., supra. We therefore can find no grounds to hold that a valid judgment could not have been rendered on the suit filed in Saline County.

Appellees also submit the appellant has waived its right to claim that another action is pending in view of its response to the Saline County suit, that venue was improper — that its positions are inconsistent. However, were we to accept appellees’ premise, it would undermine much of the utility of Rule 12(b)(8) and Rule 41. If the defendant raises the defense of the pendency of another action and estoppel or waiver is found, the defendant could lose both ways. Through estoppel or waiver the original suit could be held not pending because of the nature of certain legitimate defenses claimed by the defendant, as in this case. Thus, the pendency defense would lose its force and defendants would be helpless to make use of Rule 41. If the original suit is held pending, the defendant could be estopped from raising certain. defenses in the first action because he claimed a "proper” suit was pending in that court. As might be expected, this issue has not been widely discussed, but in Jernigan v. Rainer Mercantile, 211 Ala. 220, 100 So.2d 142 (1924) the court found the same problems in the appellees’ argument as we do here. In that case, the defendant raised the defense that the plaintiff was a dissolved corporation without capacity to sue. Before further action was taken in the suit, another was filed by the plaintiff and the defendant filed a plea of the pendency of the first suit, and the second suit was dismissed. The first suit being subsequently called, plaintiff objected to the defendant’s plea of plaintiff’s incapacity to sue. The defendant’s demurrer was overruled and the cause went to judgment and the defendant appealed from that ruling. The Supreme Court reversed and stated in part:

Counsel for appellee argue upon the assumption that defendant’s plea in the second suit of the pendency of another suit between the same parties concerning the same subject matter, acknowledged the effectiveness of the former suit. To this, however, we do not agree. The plea of the pendency of a former suit rests upon the principle of discouraging multiplicity of suits and protecting the defendant from double vexation from the same cause. Such a plea does not involve the inquiry as to whether the prior suit is capable of being prosecuted to a successful issue if resisted by the defendant. . . The considerations which underlie the doctrine . . . take no account of the puissance of, or the want of it in the former action ... It is the pendency of two suits for the same cause . . . the law deems vexatious and discountenances.

If Rule 12(b)(8) is to have any meaning, we find on the facts in this case that another case was pending and the trial court had no choice but to dismiss the appellees’ complaint. The case is reversed and remanded for disposition in the trial court in accordance with this opinion.

Turtle and Hollingsworth, JJ., dissent.

John I. Turtle, Justice,

dissenting. The first suit was filed in Tulaski County on January 20, 1980. Appellees sought to recover benefits from appellant life insurance company on a policy covering the son of appellees. The son was killed during an argument with a third party. The appellant resisted the claim on the grounds that the decedent was the aggressor and therefore death was not accidental within the terms of the policy. The first suit was dismissed and refiled in Saline County. The appellant responded to the Saline County suit by stating that Ark. Stat. Ann. § 66-3234 required the action to be brought in Tulaski County. If the appellees were to dismiss the Saline County suit they would be barred by ARCT Rule 41 because a second dismissal is considered an adjudication on the merits of the cause of action. Appellees then filed a third complaint in Tulaski County. The Saline County action is still pending. Appellant sought dismissal of the present suit on the grounds that another action was pending in Saline County. If the Saline County action was void then no other action was pending. Therefore, the trial court was correct.

It is my opinion that Rule 41 and Rule 12(b)(8) were not intended to deny a trial on the merits of a case. I think the rules were adopted for the purpose of moving the dockets along and preventing multiple suits for harrassment purposes.

Hollingsworth, J., joins in this dissent.

      ARCP 12. Defenses and Objections, (b) How Presented.
      Every defense, in law or in fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may, at the option of the pleader, be made by motion: ... (8) pendency of another action between the same parties arising out of the same transaction or occurrence.

      § 66-3234. Suits against insurers — Venue.
      (1) An action brought in the State by or in behalf of the insured or beneficiary against an insurer as to a loss occurring or benefits or rights provided under an insurance policy or annuity contract shall be brought in either: (a) The county in which the loss occurred, or the insured died (in the case of life insurance), or (b) The county of the insured’s residence at the time of the loss or death.

      ARCP -41. Dismissal of Actions (a) Voluntary Dismissal: Effect Thereof.
      Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court, provided, however, that such dismissal operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice. In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding to trial on his claim although the plaintiff may have dismissed his action.


source: Caselaw Access Project

author: P. A. Hollingsworth, Justice.

license: Public Domain

text:
    TRAVELERS INSURANCE COMPANY v. William R. ESTES and Jerrine ESTES
    84-73
    670 S.W.2d 451
    Supreme Court of Arkansas
    Opinion delivered June 18, 1984

      Wright, Lindsey ir Jennings, for appellant and crossappellee.

      H. David Blair, for appellees and cross-appellants.
   P. A. Hollingsworth, Justice.

William and Jerrine Estes, cross-appellants, were injured in an automobile accident, from which they incurred medical expenses in excess of $4,000, and William Estes sustained loss of earnings in excess of $7,280. They were insured by the crossappellee, Travelers Insurance Co., under a policy covering two motor vehicles, the 1975 Lincoln which they were occupying and a 1960 Ford. The policy provided $20,000 in personal injury coverage for each accident, including a maximum of $2,000 in medical benefits and fifty-two weeks of income disability ata maximum of $ 140 per week. This is the minimum required by statute. See Ark. Stat. Ann. § 66-4014 (a) and (b). For coverage under the medical benefits a premium of $ 11.00 was charged on the Lincoln and $6.00 on the Ford. The premium for the income disability was $4.00 on both vehicles. Travelers paid to both Esteses the sum of $2,000 as reimbursement of medical expenses and to William Estes the sum of $7,280 under the wage loss benefit coverage of the Personal Injury Protection Endorsement of its policy. Both of the Esteses have sustained damages substantially in excess of these amounts. Since the Esteses’ injuries exceeded the amount payable under one claim, they presented a claim for benefits under the other coverage provision. Travelers denied the claim and the Esteses brought suit. The trial court held that Mr. and Mrs. Estes were not entitled to benefits under more than one of the coverage provisions. Our jurisdiction is under Rule 29( 1 )(c). We agree and affirm.

It must be emphasized that the issue in this case is not that of construing the Travelers policy because it unequivocally prevents “stacking” by providing that the insurer’s liability for medical expenses for each person is limited to $2,000 no matter how many cars are covered by the policy. Counsel for the cross-appellants admits that in the first paragraph of his brief:

At the outset, cross-appellants acknowledge that the language contained in the endorsement attached to the policies involved here would, if enforced, prevent the stacking of coverages. That language is not, however, authorized by the statute making this coverage mandatory and therefore cross-appellants urge that it must be disregarded. Therefore what is presented here is a question of statutory interpretation rather than one of policy construction.

In quoting the pertinent parts of the statute, we italicize the words relied on by the cross-appellants:

Every automobile liability insurance policy covering any private passenger motor vehicle issued or delivered in this State shall provide minimum medical and hospital benefits ... to the named insured and members of his family residing in the same household injured in a motor vehicle accident, to passengers injured while occupying the insured motor vehicle, and to persons struck by the insured motor vehicle, without regard to fault, as follows:
(a) Medical and Hospital Benefits. All reasonable and necessary expenses for medical, hospital and other specified services up to an aggregate of $2,000 per person. [Ark. Stat. Ann. § 66-4014 (Repl. 1980).]
# # *
The coverages provided in Section 1 [above] shall apply only to occupants of the insured vehicle and to persons struck by the insured vehicle . . . and to none other. Provided, however, said coverages shall not be applicable, or payable, if the prescribed minimum coverages are afforded to said occupants . . . either as a named insured or additional insured under another valid and collectible automobile insurance policy. [§ 66-4016.]

The cross-appellants make a single argument: The statute requires every automobile liability policy to provide $2,000 in medical benefits to the named insured and resident members of his family “inj ured in a motor vehicle accident. ” That means, it is argued, that all family members must be covered if they are injured in a motor vehicle accident, regardless of whether the insured vehicle is involved. Counsel goes on to say:

Had separate policies of insurance been issued on the two vehicles covered by the single policy issued by cross-appellee, and had each policy contained an endorsement repeating the language of Ark. Stat. Ann. § 66-4014 verbatim, there would appear to be no question but what each insured vehicle was entitled to benefits under both policies. That result should not be different because the two coverages were combined in a single policy, rather than single policies being involved.

The fatal flaw in this argument is its total disregard of section three of the no-fault statute (§ 66-4016, quoted above), which provides in the clearest possible language that the medical expense coverage required by section one (§ 66-4014, on which the cross-appellants rely) “shall apply only to occupants of the insured vehicle . . . and to none other.” Here the cross-appellants paid two premiums for the medical expense coverage on their two cars, an $11 premium for $2,000 of insurance on their 1975 Lincoln and a $6 premium for like insurance on their 1960 Ford. Mr. and Mrs. Estes were not and could not have been occupants of both vehicles when they were hurt. They were in the Lincoln at the time and were covered as occupants of that “insured vehicle.” They were not in the Ford and cannot claim to be covered as occupants of that insured vehicle.

The cross-appellants’ reliance on Kansas City Fire & Marine Insurance Co. v. Epperson, 234 Ark. 1100, 356 S.W.2d 613 (1962) is misplaced. That case did not involve a construction of the no-fault statute. The issue there was solely a matter of interpreting the policy. That policy provided for the payment of $1,000 in medical expense for the insured and members of his family “injured in any automobile accident, regardless of whether either insured vehicle was involved.” Since the company had collected two premiums, one of $7.20 and the other of $4.20, for that comprehensive coverage, the court held that where the medical expense exceeded $2,000, the company was liable under both the $1,000 coverages. That was true, however, not because of the wording of the statute but because of the wording of the policy. The policy now before us expressly excludes such stacking.

The judgment of the trial court is affirmed.


author: George Rose Smith, Justice.

text:
    Virginia DORAZIO v. Nettie Pauline Dortch DAVIS
    CA 84-146
    671 S.W.2d 173
    Supreme Court of Arkansas
    Opinion delivered June 25, 1984

      Rose Law Firm, by: Kenneth R. Shemin and Richard T. Donovan, for appellant.

      John P. Corn, for appellee.
   George Rose Smith, Justice.

The plaintiff, Nettie Pauline Dortch Davis, and the defendant, Virginia Dorazio, are sisters who are tenants in common of certain lands inherited from their father, Robert L. Dortch. In August, 1978, Mrs. Davis brought this partition suit in the Lonoke Chancery Court with regard to 110 acres of the common property, the complaint alleging that the land could not be divided in kind and asking that it be sold. Mrs. Dorazio’s answer admitted the cotenancy but asserted that the parties were in such unequal bargaining positions that a partition by sale would be oppressive.

After a hearing on May 24, 1979, the chancellor entered a decree on September 5, 1980, ordering partition and appointing three commissioners to divide the land in kind if possible and, if not, to report back to the court. After a long delay the commissioners reported on June 3, 1983, that the 110 acres cannot be divided in kind for a number of reasons, one being that there is a large house on the land. The chancellor approved the report on the same day and ordered a sale. Mrs. Dorazio, however, filed a pleading objecting to the proposed sale, asserting that the commissioners’ report was merely advisory, and asking that she be given an opportunity “to present evidence to refute the Report of the Commissioners as is her right.”

Chancellor Jim Hannah set the matter for a hearing on July 21, 1983. Counsel for the plaintiff appeared with the commissioners, prepared to defend their finding that the 110 acres cannot be divided in kind, but opposing counsel offered no testimony to the contrary, despite the request for an opportunity to do so. Instead, counsel merely stated, with no supporting proof or offer of proof, that the 110 acres comprised only part of the land owned in common by the two sisters, and “our position is that if partition is required, we want and we think we are entitled as a matter of law the entire acreage owned as tenants in common be partitioned, and that’s simply our position today.” The trial judge expressed his inability to understand why the point had not been raised four years earlier. His ensuing order found that the defendant had been given the opportunity to present evidence and had declined, denied the motion to stay the sale, and set a new date for the sale. The defendant filed a notice of appeal to the Court of Appeals and obtained a stay in the trial court by making a supersedeas bond.

When the record was filed on the last day of the full seven months allowed by law, the appellant filed with it a motion to remand the case for a new trial, on the ground that a transcript of the hearing held in June, 1979, could not be obtained. In opposing the motion to remand, the appellee argues that notice of appeal should have been given within 30 days after partition was ordered in September, 1980. The appellee has also filed a motion to affirm as a delay case. The Court of Appeals certified both motions to us, as involving the construction of procedural rules and statutes. Rule 29 (l)(c).

Both motions must be denied.

First, the motion to remand. The notice of appeal was timely, for the 1980 order appointing commissioners was not a final order. Hence the notice of appeal filed in 1983 brings up for review earlier interlocutory orders in the case.

Even so, nothing would be accomplished by a remand. It must be emphasized that an admitted cotenant has an absolute right to a partition of the property. Ward v. Pipkin, 181 Ark. 736, 27 S.W. 2d 523 (1930). Mrs. Dorazio originally opposed the partition because the parties’ bargaining positions were supposedly unequal, but we have said that a party’s absolute unconditional right to partition cannot be defeated by a showing that a partition would be inconvenient, injurious, or even ruinous to an adverse party. Schnitt v. McKellar, 244 Ark. 377, 389, 427 S.W. 2d 202 (1968). Hence if any proof about the parties’ positions was actually introduced at the 1979 hearing, it could not be controlling.

Alternatively, the 1979 hearing might have touched upon the other issue raised by the answer — whether the 110 acres can be divided in kind. Mrs. Dorazio has certainly had her day in court on that issue. She requested a hearing for the express purpose of refuting the commissioners’ finding and then declined to offer proof on the subject. She is not entitled to still another opportunity to explore that issue.

Finally, there has in fact been no proper showing of any need to remand the case for a new trial. Counsel argue, on the basis of our holding in Holiday Inns v. Drew, 276 Ark. 390, 635 S.W. 2d 252 (1982), that a new trial is required when the record cannot be prepared (in that case because the court reporter’s equipment malfunctioned). Our procedural rule, however, contemplates that when, as here, a transcript is unavailable, the appellant may prepare a statement of the evidence “from the best means available.’’ Ark. R. App. P. 6 (d). Here the lawyer who represented Mrs. Dorazio at the May, 1979, hearing has merely stated, in a two-sentence affidavit, that although he recalls the witnesses who testified he cannot recall the substance of their testimony. Since the witnesses themselves would be the best means of reconstructing their testimony, we find no showing of diligence. Moreover, we cannot help noting that after Mrs. Davis’s absolute right to partition has been delayed in the courts for six years, the appellant is asking that the whole process be started again on account of an omission not shown to have any subtantial materiality. To sustain such a contention would be a miscarriage of justice.

Second, the motion to affirm as a delay case. A motion of this kind is recognized both by statute, Ark. Stat. Ann. § 27-2141 (Repl. 1979), and by our own rules. Rule 4. Even so, both the statute and the rule require that counsel for the appellee endorse on the record a statement that be believes the appeal is prosecuted for delay. No effort has been made to comply with this requirement. The requirement, being penal, must be strictly observed; so it is not our practice to penalize an appellant for delay when the requirement has not been met. Hollaway v. Pocahontas Fed. S. & L. Assn., 230 Ark. 310, 323 S.W. 2d 204 (1959). The motion to affirm must be denied.

The two motions are denied, and the case is returned to the Court of Appeals for further proceedings.

Adkisson, C.J., and Hickman, J., not participating.


author: Robert H. Dudley, Justice.

text:
    Larry COMBS et al v. Jesse S. CHEEK, Jr.
    84-19
    671 S.W.2d 177
    Supreme Court of Arkansas
    Opinion delivered June 25, 1984

      Henry C. Kinslow, City Atty. of El Dorado, for appellant.

      Compton, Prewett, Thomas ir Hickey, P.A., by: Robert C. Compton, for appellee.
   Robert H. Dudley, Justice.

Appellee, James E. Cheek, Jr., retired as fire chief after twenty-three years of service with the El Dorado Fire Department. A retired fireman is entitled to a monthly retirement benefit equal to one-half of the salary attached to the rank held at the time of retirement. Ark. Stat. Ann. § 19-2204 (Repl. 1980 and Supp. 1983). In addition, a retired fireman is entitled to a lump sum payment for a limited amount of unused accumulated sick leave. Ark. Stat. Ann.§ 19-1720 (Repl. 1980 and Supp. 1983). Appellee asked the Board of Trustees of the El Dorado Firemen’s Relief and Pension Fund to consider the lump sum payment for unused accumulated sick leave as part of his salary in fixing the amount of his monthly retirement benefit. The board refused and appellee filed suit for declaratory judgment. The trial court ordered the board to include the lump sum payment for sick leave in determining the amount of the retirement benefit. We reverse. Jurisdiction is in this court pursuant to Rule 29 (1) (c) since the case involves the interpretation of an act of the General Assembly.

The statute creating the monthly retirement benefit, Ark. Stat. Ann. § 19-2204, provides that a retired fireman is entitled to be paid a monthly pension “equal to one-half of the salary attached to the rank” held at retirement. The statute creating the lump sum payment for unused accumulated sick leave, Ark. Stat. Ann. § 19-1720, provides that it is payable only upon retirement. Obviously, a sum payable only upon retirement is not a part of the regular salary attached to the rank.

The statutory language providing that a retired fireman is "entitled to be paid a monthly pension equal to one-half of the salary attached to the rank” was first used in Section 4 of Act 491 of 1921. However, neither sick leave nor lump sum payment for unused accumulated sick leave was statutorily provided for firemen until 1971. See Act 241 of 1971. Ark. Stat. Ann. §§ 19-1718 and 19-1720 (Repl. 1980). Thus, the General Assembly could not have intended to include payment for unused accumulated sick leave in its 1921 concept of the word "salary.” Since the statutory language has remained the same since 1921, we can only conclude that the legislative intention has remained the same. The word “salary,” as used in the Firemen’s Relief and Pension Fund Act, does not include payment for unused accumulated sick leave.

The appellee alternatively contends that, even if the statute does not provide that the lump sum payment constitutes salary, he has a vested right to have it included as salary since it was done for others in the past and was a factor in his continued employment. The argument is without merit because one cannot gain a vested retirement right from an unauthorized administrative procedure which is contrary to statute. Board of Trustees of the State Police Retirement System v. Halsell, 271 Ark. 815, 610 S.W.2d 881 (1981).

Reversed.


author: Robert H. Dudley, Justice. Richard B. Adkisson, Chief Justice,

text:
    KINCO, INC. v. SCHUECK STEEL, INC.
    84-66
    671 S.W.2d 178
    Supreme Court of Arkansas
    Opinion delivered June 25, 1984

      Mitchell, Williams, Selig, Jackson & Tucker, by: Debra K. Brown and Byron Freeland, for appellant.

      Owens, McHaney & Calhoun, by: John C. Calhoun, Jr., for appellee.
   Robert H. Dudley, Justice.

Appellee, Schueck Steel, Inc., filed suit against appellant, Kinco, Inc., for unfair interference with Schueck’s business expectancy. Schueck asked for $15,000 as lost profit and $25,000 as punitive damages. The trial judge refused to give an instruction on punitive damages. The jury returned a verdict for Schueck and awarded $25,000 in compensatory damages. The trial judge reduced the amount of damages to the amount of compensatory damages prayed, $15,000. Kinco appeals, asserting that Schueck failed to make a prima facie case of tortious interference with a business expectancy, or alternatively, that Kinco’s interference was privileged. Schueck cross-appeals, asking that the $25,000 verdict be reinstated but, at oral argument, Schueck dismissed its cross-appeal. We affirm on direct appeal. Jurisdiction is in this court under Rule 29 (l)(o) as the case presents a question in the law of torts.

The pertinent facts are as follows. In 1981, the Pulaski County School District hired an architectural firm to prepare plans and specifications for the construction of the J. A. Fair school. The architectural firm chose to use a metal wall paneling to cover part of the exterior of the building. The architects thought only one company manufactured the desired type of metal panel and that it was sold under the brand name of Walcon. Appellee Schueck is the local distributor for Walcon. Thomas B. Schueck, Schueck’s chief executive officer, also thought it was the only distributor for this type of panel.

The architects decided to establish an allowance in the bid documents for the wall panel. An allowance notifies bidders of the amount which will be allowed for the purchase of a particular item. Accordingly, Thomas B. Schueck met with the architects and they arrived at a cost of $98,952, which included a gross profit of $15,000 for Schueck. An.allowance of $99,000 for the wall panel was then put in the bid specifications. The architects did not use the brand name Walcon in the description of the allowance. One of the school’s architects, who was working with Schueck on the allowance, told him that they were going to use Walcon if the project came within the budget. All of the bidders on the general contract used the $99,000 allowance figure as their cost for the metal paneling. Obviously, an expectancy existed at that time. After the bids on the general contract were received, all parties still thought the Walcon product would be used. Richardson Construction Company was awarded the contract and Richardson, in turn, subcontracted with Kinco tó supply and erect the wall panels. Later, Kinco, after asking the architects if they were interested in receiving quotes on other wall panel, undertook to locate a panel similar to Walcon and found MorWall. Kinco contracted to become a distributor for MorWall. Kinco then became a competitor of Schueck but concealed that from Schueck.

The school district decided to use an additional amount of wall paneling and so the architects issued an addendum requesting price quotations for additional paneling, custom color, and warranties. The addendum stated that a product “similar to” Walcon paneling should be used. Kinco’s project manager talked with Schueck about the additional wall paneling and about a quote for custom color. Schueck still did not know that Kinco was his competitor. There is substantial evidence that Kinco used knowledge of Schueck’s prices to make its bid on the addendum lower. There is evidence that, at the time Kinco submitted the Walcon and the MorWall bids to the architect, Schueck’s additional price was really $3,000 but Kinco’s manager had added profit to the total cost of paneling so that it appeared Schueck was asking $13,000. The architects saw this, thought it was excessive and became irritated with Schueck. Schueck told the architects that somebody had altered his price. Schueck asked Kinco’s project manager why his price went from $3,000 to $13,000 and the manager did not give a satisfactory answer. Schueck wrote a letter to the architects and offered to make a gift of the added material and also offered a twenty year guaranteed color for $2,500. His purpose in doing so was to avoid upsetting the architects and school board and because he didn’t want to lose the business.

One of the architects later called Kinco’s manager to ask about the price discrepancy. The manager’s failure to reveal to the architect that he added a profit to the price can be construced as intentionally misleading. A memorandum was put in evidence which indicates that Kinco’s manager was delighted at Schueck’s predicament.

In addition, Kinco’s manager submitted confusing comparisons to the architects about custom colors and the warranties between the two wall panels. The architects asked Kinco for both a “custom color quote only” and a “custom color with ten year warranty.” Kinco quoted no extra charge for the custom color and a $4,900 charge for the color with ten year warranty. Kinco never asked Schueck for a “custom color only” quote. Schueck quoted a $2,377 price for a custom color which included the ten year warranty. The warranty dictated the extra charge. The architects then told Kinco to use MorWall.

Lastly, Kinco’s manager notified the general contractor that if Schueck’s product was selected, the general contractor would have to deal directly with Schueck, despite the fact that the contract between the general contractor and Kinco stated that Kinco would both supply the materials and erect the exterior.

Appellant’s first point is that the lower court erred in refusing to direct a verdict because appellee failed to make a prima facie case of tortious interference with a business expectancy. We find no merit in the argument. The elements of the tort are the existence of a valid business expectancy; knowledge of that expectancy on the part of the interferor; intentional interference inducing or causing termination of that expectancy; and resultant damage. Walt Bennett Ford, Inc. v. Pulaski County Special School Dist., 274 Ark. 208, 624 S.W.2d 426 (1981); Mason v. Funderbunk, 247 Ark. 521, 446 S.W.2d 543 (1969). The test for the trial court in ruling on a motion for a directed verdict by either party is to take that view of the evidence that is most favorable to the non-moving party and give it its highest probative value, taking into account all reasonable inferences deducible from it; after viewing the evidence in this manner, the trial court should: (1) grant the motion only if the evidence is so insubstantial as to require that a jury verdict for the non-moving party be set aside, or (2) deny the motion if there is substantial evidence to support a jury verdict for the non-moving party. Farm Bur. Mut. Ins. Co. v. Henley, 275 Ark. 122, 628 S.W.2d 301 (1982). Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. Id. Here, there was substantial evidence that: (1) Kinco, through its employee, concealed from Schueck the fact that it was competing against him, (2) Schueck would never have disclosed its prices to a known competitor, (3) Kinco used knowledge of Schueck’s prices to underbid him, (4) Kinco added its profit to Schueck’s price and then intentionally misled the architects when they tried to determine if Schueck had padded its price for the additional wall panel, (5) Kinco submitted confusing comparisons between wall panels concerning custom color and warranty, (6) Kinco’s actions as evidenced by its employee’s memorandum were not in good faith, (7) Kinco told the architects that if Schueck’s product was used then the architects would have to deal with Schueck directly, and (8) these actions caused the termination of Schueck’s valid expectancy and he suffered damages. Therefore, the trial judge correctly refused to grant a directed verdict.

Appellant’s second point is that even if it did interfere with appellee’s expectancy, such interference was privileged and the lower court erred in refusing to direct a verdict in favor of appellant. Appellant had the burden of proof to show justification. Stebbins & Roberts, Inc. v. Halsey, 265 Ark. 903, 582 S.W.2d 266 (1979). Appellant contends that no conduct challenged by appellee rises to the level of wrongful or improper competition because appellant’s submission of a lower price saved the school district money.

The Restatement 2d of Torts § 767 comment (e) (1977) provides that if a social interest is advanced by someone who interferes with an expectancy, the conduct will be less likely to be considered improper. In Walt Bennett Ford, Inc. v. Pul. Co. Spl. Sch. Dist., 208 Ark. at 214-B, 624 S.W.2d at 430, we stated thát “an impersonal or disinterested motive of a laudable character may protect the defendant in his interference. This is true particularly where he seeks to protect a third person toward whom he stands in a relation of responsibility. . . .” In that case, school directors, in good faith, were trying to protect the school district. Here, the appellant, without good faith and for its own benefit, gained an unfair advantage by sharp and overreaching actions. There is no privilege for self-enrichment by devious and improper means.

We do clearly recognize a privilege to compete. The scope of this privilege is discussed by Prosser:

In short, it is no tort to beat a business rival to prospective customers. Thus, in the absence of prohibition by statute, illegitimate means, or some other unlawful element, a defendant seeking to increase his own business may cut rates or prices, allow discounts or rebates, enter into secret negotiations behind the plaintiff’s back, refuse to deal with him or threaten to discharge employees who do, or even refuse to deal with third parties unless they cease dealing with the plaintiff, all without incurring liability.

W. Prosser, Law of Torts, § 130 (3rd ed. 1971).

The Restatement Second on Torts defines the circumstances under which competition will justify interfering with another’s business expectancy. Section 768 provides:

(1) One who intentionally causes a third person not to enter into a prospective contract relation with another who is his competitor or not to continue an existing contract terminable at will does not interfere improperly with the other’s relation if
(a) the relation concerns a matter involved in the competition between the actor and the other and
(b) the actor does not employ wrongful means and
(c) his action does not create or continue an unlawful restraint of trade and
(d) his purpose is at least in part to advance his interest in competing with the other.

Restatement (Second) of Torts § 768 (1977).

The trial court correctly refused to grant a directed verdict because there was substantial evidence from which the jury could find that appellant employed wrongful means to interfere with appellee’s expectancy.

Appellant’s efforts were not directed toward fair competition. They were directed toward unfair evasion of competition.

Affirmed on direct appeal.

Adkisson, C.J., dissents.

Hays, not participating.

Richard B. Adkisson, Chief Justice,

dissenting. It is undisputed that the architect was not authorized to create a business expectancy for Schueck by assuring Schueck that its product would be used. A business expectancy never existed. Schueck had only a hope that its product would be used. This hope was mostly based on the fact that the architect had given Schueck an advantage by using its product to write the specifications.


text:
    William G. DEATON v. STATE of Arkansas
    CR 84-22
    671 S.W.2d 175
    Supreme Court of Arkansas
    Opinion delivered June 25, 1984

      Wright ér Chaney, P.A. by: Travis R. Berry, for appellant.

      Steve Clark, Att’y Gen., by: Marci L. Talbot, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

This case involves the interpretation of the criminal sentencing statutes of 1979. Jurisdiction is under Rule 29(1 )(c).

On September 11, 1979, the appellant, a youthful offender, committed the felony of theft by receiving a stolen pistol. He was charged and, on January 6, 1981, pleaded guilty. The judgment of conviction provides that he “is sentenced to three (3) years probation . . “is hereby committed to the Department of Correction or its authorized representative for a term of three years in the state penitentiary;” and “the execution is hereby stayed for a period of three years.” Thus, on January 6, 1981, the trial court sentenced appellant to a term of three years imprisonment, suspended execution of the sentence and placed appellant on three years probation.

The statute in effect on the date of the crime governs the sentence. Article II, § 17 Const. of Ark.; Hunter v. State, 278 Ark. 428, 645 S.W.2d 954 (1983). The sentence must be in accordance with the statutes. Ark. Stat. Ann. § 41-803 (Repl. 1977); Cooper v. State, 278 Ark. 394, 645 S.W.2d 950 (1983). In this case the judge suspended the execution of the sentence which is a proceeding by which the term of imprisonment is fixed but the serving of that sentence is suspended conditioned upon the good behavior of the offender. In 1979, there was no statutory provision authorizing suspension of the execution of a sentence for an adult offender. McGee v. State, 271 Ark. 611, 609 S.W.2d 73 (1980). However, under the Youthful Offenders Alternative Service Act of 1975, which was in effect in 1979, a trial court could suspend either the imposition or the execution of the sentence and, in addition, place a youthful offender on probation. Ark. Stat. Ann. § 43-2342 (a) (Repl. 1977 and Supp. 1979). Consequently, the first sentence was authorized for a youthful offender. Its term expired on January 6, 1984.

On April 15,1981, approximately three months after the first sentence, the trial court ordered that:

Defendant’s probation is revoked and Defendant is sentenced to the Department of Correction for Four years, Eight months, and twenty-one (21) days, and fine of $250.00 plus cost of $67.20 to date. That Defendant is being sentenced under Act 378 of 1975, and Defendant has consented to sentencing under provisions of said Act 378 of 1975 Section 4 (d).

The trial court should have revoked only the fixed term remaining on the suspended sentence. However, no appeal was taken. If the state attempts to enforce the sentence, the appellant must raise the matter in a post-conviction proceeding.

On August 12,1983, after a motion by the state, the trial court sentenced the appellant to an additional term of five years. This third sentence is the one now on appeal. It is reversed, set aside, and the appellant is ordered released on this sentence. A new sentence cannot be set at a revocation hearing. Easley v. State, 274 Ark. 215, 623 S.W.2d 189 (1981). “A person need run the gauntlet only once. ” North Carolina v. Pearce, 395 U.S. 711 (1969).


author:
Steele Hays, Justice. John I. Purtle, Justice,
      Robert H. Dudley, Justice, Webb Hubbell, Chief Justice.

text:
    Avery Nathan RICHARDSON v. STATE of Arkansas
    CR 84-13
    671 S.W.2d 164
    Supreme Court of Arkansas
    Opinion delivered June 25, 1984
    [Supplemental Opinion on Denial of Rehearing November 5, 1984.]

      Carl J. Madsen, P.A., for appellant.

      Steve Clark, Att’y Gen., by: Theodore Holder, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

Appellant was convicted of first degree murder and arson, resulting in consecutive sentences of forty years for murder and twenty years for arson. Two points for reversal are raised: The trial court erred in denying a motion to suppress custodial statements because the appellant was not promptly brought before a judicial officer and in denying a motion to suppress evidence because of an invalid arrest in violation of the Fourth and Fourteenth Amendments to the Constitution. We affirm.

On September 1, 1982 the burned body of Lester Richardson was found among the ashes of his home in Arkansas County. Later that day appellant, his father and step-mother, who lived nearby and who reported the fire, were taken to the sheriff’s office for questioning. While there, appellant was charged with public intoxication, searched and placed in a jail cell. Ten days later he was charged with murder and arson, but not until October 25, 1982 was he brought before a judicial officer, at which time counsel was appointed.

Appellant gave three custodial statements between the time of his arrest and his appearance before a judicial officer. The first was given on the evening of September 1, and two later ones on October 5 and 6. Appellant submits that all three statements must be suppressed because of the inordinate delay in compliance with A.R.Cr.P. Rule 8.1, which provides:

An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay. (Our italics.)

We have held that compliance with this rule is mandatory, Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978), and in Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981) we said that a delay of seventeen days in presenting an accused to a judicial officer constituted a violation of Rule 8.1, and that the remedy was not a dismissal of the charges, but the suppression of in-custodial statements. See Gerstein v. Pugh, 420 U.S. 103 (1975).

The State, appropriately, concedes that a delay of fifty-six days, which occurred in this case, cannot be defended, with which we emphatically agree. However, the state submits that the error is harmless because the three statements are all exculpatory, in that they merely give appellant’s account of how Lester Richardson accidentally discharged a 20 gauge shotgun as he was changing the sheets on a bed for the appellant, his nephew, to sleep in. Whether the nature of the statements requires reversal cannot be determined, as none of the three statements is abstracted and their admission may have been harmless. At least we are not willing to presume that the statements are prejudicial when their content is not divulged and we have no way of knowing whether they are incriminating. Rule 9(d) of the Rules of the Supreme Court provides that appellant’s abstract should include “such material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this court for decision.” While the rule uses the word “only ”, that cannot excuse the total omission of exhibits or other material, the substance of which is essential to a determination of whether appellant’s argument has merit, and warrants a reversal of the judgment. Adams v. State, 276 Ark. 18, 631 S.W.2d 828 (1982); Byers v. State, 267 Ark. App. 1097, 594 S.W.2d 252 (1980); Vail v. State, 267 Ark. App. 1078, 593 S.W.2d 491 (1980); Ellis v. State, 267 Ark.App. 690, 590 S.W.2d 309 (1979).

The remaining argument is that other evidence should have been suppressed because it was obtained by a search based on an invalid arrest. Appellant submits that his arrest for public intoxication was a mere pretext to aid the state in its investigation of the felony charges which were later filed. We cannot sustain that contention. The proof established that appellant had been drinking the night before and showed the effects of alcohol when he was brought to the sheriff’s office around midday on September 1. During the next hour or so he made frequent trips to the rest room as he became increasingly inebriated, until he was arrested, searched and an empty half pint whiskey bottle found in his boot. The proof that his condition justified the charge is not seriously challenged. Appellant’s argument is based on nothing more than the mere assumption that the motive for his arrest related to the murder and arson crimes and not to the fact that he was, by all accounts, publicly drunk. Appellant submits that the offense of public intoxication, as defined in Ark. Stat. Ann. § 41-2913, requires an element missing here, i.e. a likelihood that the accused poses a danger to himself or to the persons or property of others. But the appellant was a possible suspect for homicide and arson and the circumstances were entirely sufficient to place him under arrest for being drunk in public. It is not necessary that a dangerous propensity from excessive alcohol become manifest before the police are justified in arresting someone for being intoxicated in a public place.

We cannot overlook the extraordinary delay in bringing this appellant before a judicial officer as required by A.R.Cr.P. Rule 8.1. Abuses of this sort warrant the strongest censure. The sheriff, along with the prosecuting attorney, was and is primarily responsible for this breach of responsibility. Furthermore, the circuit judge as the head of the local judicial system, must set the tone of justice in his circuit. If he oversees the system properly, it should work well; if he neglects it, it will result in similar abuses. We note, parenthetically, that neither the Circuit Judge nor the Prosecuting Attorney, currently serving in Arkansas County, were holding office at the time appellant was held improperly.

The exclusionary rule was created by the United States Supreme Court to remedy flagrant violations of constitutional rights. Weeks v. United States, 232 U.S. 383 (1914); see also Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). Its purpose is to deter improper practices in our legal system. Arkansas v. Sanders, 442 U.S. 753 (1979). While many believe the exclusionary rule should be changed (and it is being relaxed), the reasons for its existence are arguably valid simply because no effective alternative has been found. Other writers have discussed the advantages and disadvantages of the rule. See Schroeder, Deterring Fourth Amendment Violations: Alternatives to the Exclusionary Rule, 69 vol. J. 1361, 1423 (1981); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665 (1970). Cf. Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 Harv. L. Rev. 1532 (1972).

However, the question remains, how do we prevent a sheriff from wrongdoing or require him to do his duty? Unfortunately, we can’t as a practical matter, because prosecutors are reluctant to intervene. But we can express disapproval of such conduct, and we must, if a relaxation of the exclusionary rule is to be justified. Theoretically, there are remedies for victims of such abuses through civil litigation, and we should not discourage such recourse. But that is not enough, officials must be called publicly to account and given more than perfunctory admonishment; they must be censured and the people of the locality informed that their legal system has failed to work in the manner contemplated by our constitution. The responsibility in such cases must be placed on those officials who failed in their duty. It is unfair to the public, indeed it is wrong, to permit a defendant to escape prosecution for a crime because of such mistakes, unless his right to a fair trial is actually prejudiced. See Pace v. State, 265 Ark. 712, 724, 580 S.W.2d 689 (1979). At the same time, officers of the judicial system must answer to the public for their neglect.

The judgment on the sentences is affirmed.

Purtle, Hollingsworth and Dudley, JJ., dissent.

John I. Purtle, Justice,

dissenting. The majority quotes Rule 8.1 of the Arkansas Rules of Criminal Procedure and then completely abolishes it. There is no longer any requirement that an arrested person be promptly taken before a judicial officer. The appellant was held 56 days before he was taken before a judicial officer. This court stated in Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978): "Rule 8.1 is designed and has as its purpose to afford an arrestee protection against unfounded invasion of liberty and privacy. Moreover, the person under arrest taken before a judicial officer without unnecessary delay will have the charge[s] explained, will be advised of his constitutional rights, and will have counsel appointed for him if an indigent, and arrangements for bail can be made expeditiously . . . Indeed, these are basic and fundamental rights which our state and federal constitutions secure to every arrestee. Hence, we conclude that Rule 8.1 is mandatory in its scope.” We reaffirmed the Bolden holding in the case of Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). In Cook we stated: "We adhere to our standard that this rule is mandatory, not discretionary, but that violation of it does not dictate a dismissal of the charges.” Bolden v. State, supra, and Gerstein v. Pugh, 420 U.S. 103 (1975). The period of detention in Cook was 31 days. I cannot understand why this court held in 1981 that 31 days was excessive and in 1984 can hold that 56 days is not excessive. The majority opinion overrules Bolden and Cook in addition to Rule 8.1 and the state and federal constitutions. For a rule to be effective it must be followed. This is obviously a case of intentional pretrial detention which is in direct contradiction to the spirit of our laws and constitutions.

I also believe the appellant was illegally arrested under the pretext of public intoxication. He was taken from his home, obviously not a public place, and taken to the county jail where he was apparently allowed to drink additional alcohol before being arrested. The evidence is quite clear that appellant was already intoxicated when he left his home in custody of the sheriff, where he remained until his arrest for public intoxication. There was no evidence whatsoever that appellant was in violation of the statute. In fact some of the officers testified that he was already drunk when they brought him in. Public intoxication is defined by Ark. Stat. Ann. § 41-2913(1) (Repl. 1977) which states: “A person commits the offense of public intoxication if he appears in a public place manifestly under the influence of alcohol or a controlled substance to the degree and under circumstances such that he is likely to endanger himself or other persons or property, or that he unreaspnably annoys persons in his vicinity.”

Since the arrest was illegal and the detention was unreasonably long before appellant was allowed to appear before a judicial officer, I would suppress the evidence obtained pursuant to such arrest and detention. There is plenty of evidence from which a conviction may be legally obtained. To allow an arrestee to be detained for 56 days without a probable cause hearing is to utterly destroy Rule 8.1 and render the state and federal constitutions meaningless in respect to pretrial detention. I would reverse and remand.

Robert H. Dudley, Justice,

dissenting. While the appellant was intoxicated in his own home, a deputy sheriff knocked on the front door and said the police wanted to question him. It is undisputed that the police had neither an arrest warrant nor a search warrant and did not have probable cause for either type of warrant. Appellant was taken to the police station and, after more than an hour, was arrested for being drunk in a public place, the police station. In his shirt pocket one of the officers found a #6 shot .20 gauge yellow W & W shotgun shell. The public drunkenness charge was dismissed. The trial court refused to suppress the shell as evidence in the case before us. The ruling was erroneous and prejudicial. I would reverse.

The Fourth Amendment gives greatest protection to a person in the sanctity of his home. Payton v. New York, 445 U.S. 573 (1980). This appellant was in his home and the state admitted that he was not even a suspect in the case before us, Appellant was not warned that he had no obligation to go to the police station. See A.R.Cr.P. Rule 2.3. A state policeman testified “ ... he was being detained against his will for questioning and we asked him, we asked him to come in for questioning and he didn’t tell us no, but, yes sir, we had him there. As a practical matter I did not ask him to come in for questioning as I sent a deputy out to pick him up.” This seizure of the person was either an arrest or an investigatory stop. For the purpose of discussing the issue, the distinction does not matter, for investigatory stops, just as arrests, are subject to the restraints imposed by the Fourth Amendment. Here, appellant was unreasonably seized at his home and, unless there was some intervening act by appellant which justified his arrest, the seizure of the shotgun shell was constitutionally impermissible.

The state has not proven that appellant committed some new and intervening offense for which he could be validly arrested. Deputy Sheriff Ellenburg, who caused appellant to be arrested for public intoxication, testified as follows:

Q. And he was at the Sheriff’s Office because you had sent somebody, Deputy Rowe, I believe to pick him up, is that correct?
A. That’s correct.
Q. Can you describe Nathan’s condition when he arrived at the Sheriff’s Department?
A. Ah, yes, sir.
Q. Would you do so.
A. He, ah, that night Nathan was intoxicated. The next morning when he was brought in, ah, you could still see the affects [sic] of, ah, of being intoxicated. If I’ve explained myself.
Q. All right. In other words he was more than just hung over he was still kind of intoxicated when . . . when he came into the Sheriff’s Office, was he not?
A. Ah, to a certain degree, yes, sir.
Q. Then your .. . your testimony was he .. . when he arrived he was kind of intoxicated but while he was there he drank some more and became intoxicated?
A. Yes, sir.
Q. And he was not there of his own choosing?
A. No, sir.
Q. You had .. . you had him there ... he was there at your request, is that correct?
A. Yes, sir. That’s correct.
Q. And then you ... because he was intoxicated there at the Sheriff’s Office you placed him under arrest for public intoxication, or that Deputy Simpson did.
A. Yes, sir.

Thus, the state has only proven that appellant was intoxicated “to a certain degree” when he was illegally seized at his home and “became intoxicated” while unwillingly and unlawfully being detained at the police station. He committed no new or intervening offense. He only continued the same conduct.

P. A. Hollingsworth, Justice, dissenting. I dissent from the Court’s affirmance of this case. Appellant was in the privacy of his home when he was taken into custody by the deputy sheriff. The deputy who ordered appellant picked up was the uncle of the victim in this homicide. Because of this relationship, I'assume the unlawful police conduct was carried on throughout the investigation of the homicide. In Bolden v. State, 262 Ark. 718, 516 S.W.2d 281 (1978), we stated:

Rule 8.1 is designed and has as its purpose to afford an arrestee protection against unfounded invasion of liberty and privacy. Moreover, the person under arrest taken before a judicial officer without unnecessary delay will have the charged [sic] explained, will be advised of his constitutional rights, and will have counsel appointed for him if an indigent, and arrangements for bail can be made expeditiously. Such action may avoid the loss of the suspect’s job and eliminate the prospect of the loss of income and the disruption and impairment of his family relationship. Indeed, these are basic and fundamental rights which our state and federal constitutions secure to every arrestee. Hence, we conclude that Rulé 8.1 is mandatory in its scope.

The case at bar presents no circumstances that require us to retreat from this clear mandate. All custodial statements should be suppressed.

The other evidence should have been suppressed also because it was obtained illegally. The Exclusionary Rule has been emasculated by the U.S. Supreme Court but not obliterated. I am not convinced that the facts of this case at bar comply with the latest pronouncement on the Exclusionary Rule from our highest Court. In Nix v. Williams, _ U.S. _, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), the U.S. Supreme Court reiterated:

Reversed and Remanded November 5, 1984

678 S.W.2d 772

The case rationale consistently advanced by this Court for extending the Exclusionary Rule to evidence that is the fruit of unlawful police conduct has been that this admittedly drastic and socially costly course is needed to deter police from violations of constitutional and statutory protections. This Court has accepted the argument that the way to ensure such protections is to exclude evidence seized as a result of such violations notwithstanding the high social cost of letting persons obviously guilty go unpunished for their crimes.

We should not retreat from these legal principles that are well established.

I would reverse.

Supplemental Opinion on Rehearing

Webb Hubbell, Chief Justice.

In our opinion of June 25, 1984, we affirmed the conviction of appellant, Avery Nathan Richardson, of first degree murder and arson. On rehearing, we reverse and remand for a new trial.

Appellant received consecutive sentences of forty years for murder and twenty years for arson in connection with the death of Lester Richardson, his uncle. Appellant argues two points for reversal: (1) the trial court erred in denying a motion to suppress three custodial statements because he was held in custody for fifty-six days without counsel and without being brought before a judicial officer; and (2) the trial court erred in denying a motion to suppress evidence because the arrest was in violation of the Fourth and Fourteenth Amendments of the Constitution.

In the early morning hours of September 1, 1982, the home of Lester Richardson near DeWitt, Arkansas, was badly damaged by fire. Richardson’s body was found among the debris. Sometime that day a sheriff’s deputy went to appellant’s home, which was near the Lester Richardson dwelling, and brought appellant, his father, and stepmother to the DeWitt police office for questioning. Richardson moved about the waiting room, which was open to the public, and made frequent trips to the restroom. The Chief Deputy, Don Ellenburg, who was also appellant’s uncle, said appellant became increasingly talkative, was flushed, and had a strong odor of alcohol about him. Ellenburg asked another deputy to search appellant, and an empty whiskey bottle was found in his boot.

Appellant was arrested and jailed for public intoxication. Ten days later that charge was dropped, and the murder and arson charges were filed. Not until October 25, 1982, was appellant taken before a judicial officer for arraignment and the appointment of defense counsel. During the nearly two months between arrest and arraignment, appellant gave statements relating to Lester Richardson’s death, one on the day of his arrest and later ones on October 5 and 6.

Appellant insists it was error for the trial court to permit these statements to be introduced in evidence because of the flagrant violation of Rule 8.1 of the Arkansas Rules of Criminal Procedure:

An arrested person who is not released by citation or by other lawful manner shall be taken before a judicial officer without unnecessary delay. (Our italics).

The observance of this rule is mandatory. Bolden v. State, 262 Ark. 718, 561 S.W.2d 281 (1978). The state does not attempt to justify the extraordinary delay in taking appellant before a judicial officer. It argues instead that no prejudice occurred because the statements are not incriminating. It is difficult to assess this argument because the statements themselves are not abstracted. However, we have the substance of the two October statements from abstracted testimony. Chief Deputy Ellenburg testified at the suppression hearing that appellant sent for him after he had left work. Appellant’s rights were explained, and appellant told of Lester Richardson having asked appellant to come and fix a butane stove. When appellant had finished, his uncle suggested he spend the night. In the process of making up a bed, Lester accidentally discharged a shotgun he kept on the bed, the charge striking him in the left chest. Appellant stopped at a rice well to wash his hands and face and noticed Lester’s house was on fire. He thought an oscillating fan, knocked over when Lester fell, might have ignited a stack of newspapers. Appellant and his father called the fire department and went back to Lester’s house.

The October 6 statement, given in substance through the testimony of another officer, is generally the same, though in this statement appellant said the shotgun was lying on the bed slats presumably under the mattress. The substance of the September 1 statement is not abstracted.

Although compliance with A.R. Crim. P. 8.1 is mandatory, a breach does not compel a dismissal of the charges; rather, it requires that evidence gained as a result of the unnecessary delay be suppressed. Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981). Gerstein v. Pugh, 420 U.S. 103 (1975).

While the statements here can be said to be exculpatory in the sense that they describe the event as accidental, it can hardly be doubted that they were used to advantage by the state and worked to appellant’s prejudice. They were self-contradictory, and they may have been inconsistent with other physical evidence surrounding the death of Lester Richardson.

The state contends that Cook v. State, supra, is distinguishable. There, an in-custodial statement was suppressed because of a thirty-one day delay. In Cook, the defendant repeatedly asked for the appointment of counsel whereas there is no indication appellant requested counsel. That distinction may be significant in some situations, but not where the delay extends clearly beyond any reasonable length of time. We conclude that the October 5 and 6 statements, taken after appellant had been held in jail for thirty-five days in violation of Rule 8.1 should have been suppressed.

The September 1 statement and other evidence obtained at the time of arrest do not come under the same stigma because their procurement is not tainted by what came afterward. We make no inference that the statement and other evidence are otherwise admissible as the abstract tells us almost nothing about the statement one way or the other. Our holding with respect to the violation of Rule 8.1 is limited to the two statements which were not obtained until well after the rule was breached.

Since the case is being remanded, the trial court should rehear the issue of appellant’s arrest to determine whether there was probable cause to support the arrest for public intoxication, independent of murder and arson charges. In that regard, appellant’s condition at the time he was picked up is of significant importance in evaluating the totality of the circumstances surrounding the arrest. Also, the circumstances under which appellant was brought to the police station are important, especially whether A.R. Crim. P. 2.2, 2.3, and 3.1 were followed. The degree of inebriation at the time of arrest is a relevant consideration. All of these circumstances should be weighed in determining whether appellant’s September 1 statement and other evidence seized should be admitted.

The petition for rehearing is granted, and the case is reversed and remanded for a new trial.

Hickman, J., dissents.

ERRATA 283 ARKANSAS REPORTS at page 82 Detach at perforation, moisten the back, and paste over the bracketed information pertaining to the supplemental opinion that appears under “Supreme Court of Arkansas” “Opinion delivered June 25, 1984” in the heading of Richardson v. State on page 82: [Supplemental Opinion on Rehearing November 5,1984.]

      ERRATA 283 ARKANSAS REPORTS at page 82 Detach at perforation, moisten the back, and paste over the bracketed information pertaining to the supplemental opinion that appears under “Supreme Court of Arkansas” “Opinion delivered June 25, 1984” in the heading of Richardson v. State on page 82: [Supplemental Opinion on Rehearing November 5,1984.]


text:
    Al STAMPER v. ALUMINUM AND ZINC DIE CAST CO., APCO POWER-UNIT CORPORATION and WINDSOR DOOR COMPANY, a Division of THE CECO CORPORATION
    83-302
    671 S.W.2d 170
    Supreme Court of Arkansas
    Opinion delivered June 25, 1984

      McDaniel, Gott if Wells, P.A., by: Bobby McDaniel; and Beason if Coop, by: John W. Beason, for appellant.

      Penix, Penix, Mixon if Lusby, for appellee Aluminum & Zinc Die Cast Co.

      Barrett, Wheatley, Smith if Deacon, for appellee APCO Power-Unit Corp.

      Frierson, Walker, Snellgrove if Laser, by: Malcolm Culpepper, for appellee Windsor Door Co.
   P. A. Hollingsworth, Justice.

The appellant, A1 Stamper, was adjusting a high tension spring on a garage door when the aluminum winding sleeve broke, causing him to lose the vision of his right eye. The appellant filed suit against Aluminum & Zinc Die Cast Co., (A & Z), the manufacturer of the winding sleeve; APCO Power-Unit Corp., (APCO), the seller; and Windsor Door Co., (Windsor), the distributor. The jury found that the appellant was guilty of negligence in making the adjustment which was a proximate cause of his injury. This appeal is before us under Sup. Ct. R. 29(1 )(m) because it presents a question as to products liability.

The appellant raises two issues on appeal. First he claims the trial court erred in admitting into evidence the testimony and videotaped deposition of Gerald Sanders. The appellant’s second argument challenges the trial court’s denial of his motion for new trial. We find no merit in either issue and affirm the trial court.

The appellant first argues that the trial court erred in admitting into evidence the testimony and videotaped deposition of Gerald Sanders, subrogation agent for the appellant’s workers’ compensation carrier, Aetna Insurance Co.

After the appellant was injured, the spring plug that fits inside the spring that opens the garage door was delivered to Sanders. He in turn mailed the part to Asa Morton, the appellant’s expert, for analysis. After his examination, Morton mailed the part back to Sanders along with his report. Sanders claimed he never received the part. The spring plug was missing for over three years. About a month before the trial of this case, while Sanders was talking to an attorney inolved in the litigation, the part came rolling out of his desk drawer. Mr. Sanders’ testimony at the trial essentially repeated the above-recited facts. The videotape was of Mr. Sanders’ office and was used to show the jury where the part was lost. There was no reference made in front of the jury to the fact that Mr. Sanders was a subrogation agent, and nothing in the videotape indicated that his office was in an insurance company. Nevertheless, the appellant argues that Mr. Sanders’ testimony was irrelevant and should have been excluded.

The appellant attempted to have the testimony excluded through a motion in limine. The appellees argued that the testimony was important to their defense and suggested that it would be used to show that the part was altered or damaged while it was missing, or that the claimed loss of the part was a bad faith allegation.

The trial judge, after a hearing, admitted the testimony for the narrow purpose of discussing the loss of the part. He prohibited arjy mention of Mr. Sanders’ occupation, the type of office in the videotape, or that an insurance company had compensated the appellant. At trial, the appellees never raised the question of the alteration of the missing part, nor did they argue that its loss was deliberate.

Although we agree with the appellant that the testimony and videotape deposition are seemingly lacking in relevance, we are unable to determine that any prejudice resulted to the appellant because of the admission of the testimony. We have long held that we reverse for prejudicial error only. Aetna Indemnity Co. v. Little Rock, 89 Ark. 95, 115 S.W. 960 (1909).

The appellant’s second point concerns the trial court’s denial of its post-trial motions for a new trial or a judgment notwithstanding the verdict. The appellant argues that the jury’s verdict was based on a statement made by defense counsel in closing arguments which presented facts outside of the trial record. In his closing argument, A & Z’s attorney argued that since the winding bar hole was seven feet ten inches above the ground, a six-foot ladder and a two-foot winding bar would make it possible for the winding bar to strike the ladder and break the spring’s casting. The appellant argues that the height of the winding bar hole above the ground was not in the trial record. The appellant objected to the defense attorney’s statement and the trial judge admonished the jury that the remarks of attorneys are not evidence. Nevertheless, the appellant argues the remark was highly prejudicial in that it enabled the jury to agree with one of the defense experts, Dr. Courtney Busche, who testified that the winding bar hit an object after the appellant released it.

Although the appellant now claims that the attorney’s statement was highly prejudicial, he did not request a mistrial after the remark was made. Instead, he appeared satisfied with the court’s admonition. In Howe v. Freeland, 237 Ark. 705, 375 S.W. 2d 666 (1964), the appellant also objected to a statement made during closing argument. The court in that case admonished the jury and on appeal, the appellant claimed that those statements inflamed the minds of the jurors, causing them to reach an excessive verdict. We stated:

We find no reversible error. Admittedly, the court admonished the jury to consider only evidence in the record each time that counsel for appellant objected. This apparently satisfied counsel, since he did not complain that the court’s admonition was insufficient, nor did he move for a mistrial. It was only after an adverse judgment had been rendered that the assertion was made that the court’s admonition was insufficient.

See also, Sterling Stores, Inc. v. Martin, 238 Ark. 1041, 386 S.W.2d 711 (1965). A trial court is accorded great latitude in correcting any prejudicial effect of argument by counsel, and we do not reverse unless it appears that prejudice resulted from the improper argument and the court’s admonition was insufficient to remove the prejudicial effect from the jurors’ minds. Buckeye Cellulose Corp. v. Vandament, 256 Ark. 434, 508 S.W.2d 49 (1974).

Here, the appellant claims that the jury’s verdict was based solely on the alleged improper statement made by a defense attorney. The appellant fails to note however, that the jury heard the testimony of Asa Morton, the appellant’s expert, and James Robert Kattus, Windsor’s expert, to the effect that the part was defective. We have held that the weight of the evidence and the credibility of a witness are matters for the jury and not for this court. Jones v. State, 269 Ark. 119, 598 S.W.2d 748 (1980). The jury here apparently chose to believe the testimony of one of appellees’ experts, Dr. Busche, over that of the other two experts. We have held that, “it is the exclusive province of the jury to determine the value and weight to be given the testimony of expert witnesses, and the jury is authorized to believe or disbelieve the whole or any part of such expert witnesses’ testimony.” U.S. Borax & Chemical Co. v. Blackhawk Warehousing & Leasing Co., 266 Ark. 831, 586 S.W.2d 248 (1979). We stated in The Western Union Telegraph Co. v. Byrd, Adm’x, 197 Ark. 152, 122 S.W.2d 569 (1938), that:

Where there is a conflict in the evidence the determination by the jury of the issues is conclusive. “The fact that this court would have reached a different conclusion ... or that they (the judges) are of the opinion that the verdict is against the preponderance of the evidence, will not warrant the setting aside of a verdict based upon conflicting evidence.” (citation omitted).

We find that the jury could reasonably have based its verdict on the testimony, rather than on the defense counsel’s remark during this closing argument. Therefore, we affirm the trial court’s denial of the appellant’s motions.

The appellant makes two other arguments which we will address briefly. First, he claims that the defense counsel’s statement during closing arguments was made in deliberate bad faith. We find no evidence to support this allegation.

Second, in the conclusion to his brief, the appellant states that this court should direct a verdict in his favor based upon the admission of liability by the defendant Windor’s expert witness. In their answser to appellant’s complaint, Windsor denied liability. Although Windsor’s expert testified that the part was defective, that did not amount to an admission of liability by Windsor. We held in The Western Union Telegraph Co., supra., that a party is not bound by the testimony of a witness introduced by him. Rather, we stated, it is for the jury to decide what weight to give the testimony. The jury here apparently decided to disregard Windsor’s expert testimony.

Affirmed.


author: Per Curiam.

text:
    Edward Charles PICKENS v. CIRCUIT COURT OF PRAIRIE COUNTY, ARKANSAS, and Honorable Cecil A. TEDDER, Circuit Judge
    CR 76-186
    671 S.W.2d 163
    Supreme Court of Arkansas
    Opinion delivered June 25, 1984

      Ray Hartenstein and Jeff Rosenzweig, for appellant.

      Steve Clark, Atty. Gen., by: Victra L. Fewell and Leslie M. Powell, Asst. Attys. Gen., for appellee.
   Per Curiam.

Petitioner Pickens was found guilty of capital murder committed in 1975 in Arkansas County. The case was moved on a defense motion for change of venue to Prairie County which was then in the same judicial district. A sentence of death was imposed.

On January 30, 1984, the United States District Court vacated petitioner’s death sentence as the 8th Circuit Court of Appeals had ordered it to do. See Pickens v. Lockhart, 714 F. 2d 1455 (8th Cir. 1983). On February 2, 1984, the State asked this Court to vacate the death sentence and reinvest the Circuit Court of Prairie County with jurisdiction to resentence petitioner. We granted the motion on February 23, 1984. The resentencing procedure is scheduled to begin on July 17, 1984 in Prairie County.

Petitioner now requests this Court to issue a writ of prohibition barring the resentencing in Prairie County and a writ of mandamus compelling the trial judge to issue subpoenas for certain witnesses to testify at the resentencing proceeding.

Petitioner bases his petition for writ of prohibition on the ground that jurisdiction lies in Arkansas County. Petitioner argues that the resentencing is a new trial with a new jury, not a continuation of the old trial; therefore, jurisdiction should revert to the county in which the crime was committed.

Prohibition is an extraordinary remedy which does not lie unless the trial court is wholly without jurisdiction. Ferguson v. Martineau, 115 Ark. 317, 171 S.W. 472 (1914). We do not find the Circuit Court of Prairie County to be wholly without jurisdiction and accordingly deny the petition for writ of prohibition. The statute under which a defendant is resentenced following remand of a capital case after vacation of the death sentence provides that re-sentencing shall be conducted in “the trial court in the jurisdiction in which the defendant was originally sentenced.” Ark. Stat. Ann. § 41-1358 (Supp. 1983). Since petitioner was originally sentenced in Prairie County, jurisdiction in his case is now in Prairie County. Petitioner may challenge the jurisdiction of Prairie County by appeal. Springdale School District v. Jameson, 274 Ark. 78, 621 S.W.2d 860 (1981).

Petitioner asks whether it is relevant that Arkansas and Prairie counties are no longer in the same judicial district and whether resentencing is a separate trial or a continuation of the original trial. We need not address either issue now. Petitioner may raise the questions and others he deems pertinent in the trial court. Issues decided against him may be argued on appeal.

Petitioner’s petition for writ of mandamus is .also denied. Petitioner submitted to the federal district court the affidavits of sixteen witnesses who could present testimony in mitigation at his resentencing. Petitioner moved to have those witnesses subpoenaed at government expense but the trial court declined to issue subpoenas for them. Even though it may be the better course for the trial court to issue the subpoenas in this case, the issuance of a subpoena for a material nonresident witness at government expense is discretionary. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979). Mandamus will not lie to compel the trial court to change a ruling on a matter within its discretion. State ex rel Purcell v. Nelson, 246 Ark. 210, 438 S.W.2d 33 (1969). Again, petitioner’s remedy is an appeal if he desires to challenge the trial court’s decision.

Petition denied.


author: Richard B. Adkisson, Chief Justice. Darrell Hickman, Justice,

text:
    John F. JACKSON and Mary K. JACKSON v. Kerry OZMENT, M.D., Henry LILE, M.D., John SLAYDEN, M.D., and AFFILIATED SURGERY CLINIC
    84-78
    671 S.W.2d 736
    Supreme Court of Arkansas
    Opinion delivered July 2, 1984

      Bob Scott and Tom Hinds, for appellant.

      Friday, Eldredge ir Clark, by: Laura A. Hensley and Jerry Elliott, for appellee.
   Richard B. Adkisson, Chief Justice.

After being sued on account for hospital medical services, appellants, John and Mary Jackson, filed a third party complaint against appellees for medical malpractice in connection with the medical service rendered by the hospital. Appellees answered by stating that the Jacksons had failed to comply with Ark. Stat. Ann. § 34-2617 (Repl. 1962) which provides for a sixty day notice of intent to sue in all actions for medical injury. Since the Jacksons admittedly had not complied with the notice statute, the trial court granted appellees’ motion to dismiss. On appeal we affirm.

The Jacksons initially ask this Court to reconsider the constitutionality of the notice statute in light of decisions from other jurisdictions. Therefore, once again it is argued that Ark. Stat. Ann. § 34-2617 is unconstitutional because it (1) denies equal protection of the laws (Ark. Const, art. II, § 3; U.S. Const, amend. XIV), (2) denies prompt access to the courts (Ark. Const, art. II § 13), (3) constitutes special legislation (Ark. Const, art, V, § 25), and (4) violates the privileges and immunities clause of both the United States (U.S. Const, amend. XIV) and the Arkansas Constitutions (Ark. Const, art. II, § 18). We considered and rejected these arguments in the case of Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983). There we held that, “[t]he statute bears a fair and substantial relation to the object of the legislation, which is to encourage the resolution of claims without judicial proceedings, thereby reducing the cost of resolving claims and consequently the cost of [malpractice] insurance.” This position was reaffirmed in the recent case of Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984). We see no reason to reconsider these arguments.

Appellants next argue that Ark. Stat. Ann. § 34-2617 is constitutionally infirm because it violates Ark. Const, art. VII, §§ 1 and 4 which places superintending control over all inferior courts in the Supreme Court. We disagree. These sections of the Constitution do not expressly or by implication confer on this Court exclusive authority to set rules of court procedure. See Cox and Newbern, New Civil Procedure: The Court that Came in from the Code, 33 Ark. L. Rev. 1 (1979).

Appellants further argue that Ark. Stat. Ann. § 34-2617 is in direct conflict with ARCP Rule 3; therefore, the Supersession Rule which specifically supersedes any rules in conflict makes this statute ineffective. This is not so. Ark. Stat. Ann. § 34-2617 simply adds an additional step to the proper commencement of a medical injury case provided under ARCP Rule 3.

Affirmed.

Hickman, Purtle and Hollingsworth, JJ., dissent.

Darrell Hickman, Justice,

dissenting. The majority has again upheld this piece of special legislation which has no purpose except to deny certain litigants the same due process of law that others enjoy. Furthermore, it flies in the face of legislation which gives this court permission to enact rules of civil procedure for all courts. Ark. Stat. Ann. § 22-245 (Supp. 1983). (I think we needed no such permission.) There cannot be two bodies: one trying to promulgate rules for all, the other for a special few. I adhere to my views expressed in Simpson v. Fuller, 281 Ark. 471, 665 S.W.2d 269 (1984); and Gay v. Rabon, 280 Ark. 5, 652 S.W.2d 836 (1983).

Purtle and Hollingsworth, JJ., join in this dissent.


text:
    Nancy L. FOOTE, Executrix v. JITNEY JUNGLE, INC.
    84-61
    671 S.W.2d 186
    Supreme Court of Arkansas
    Opinion delivered July 2, 1984

      Johnson ir Harrod, by: William E. Johnson, for appellant.

      Wells, Moore, Simmons ¿r Stubblefield; and Mitchell, Williams, Selig, Jackson ir Tucker, for appellee.
   George Rose Smith, Justice.

On January 19,1983, the appellant obtained an $87,831.75 default judgment against the appellee, upon the appellee’s failure to file a timely response to a writ of garnishment issued upon a judgment the appellant had obtained against C.C. Gladden. On motion the trial judge set aside the default judgment upon a finding of unavoidable casualty. ARCP Rule 60 (c) (7). Our jurisdiction of this appeal from the final judgment in the matter is under Rule 29 (1) (c). We affirm.

The facts are not in dispute, the appellant having offered no testimony at the hearing on the motion to set aside the default judgment. The appellee is a Mississippi company that franchises many convenience stores in several states. When one of its officers, Jerry Summerford, received the writ of garnishment on January 3, 1983, from the company’s Arkansas agent for service, Summerford mistakenly thought a response was due 20 days from that date instead of from December 28, when service had been had. Summerford telephoned the appellant’s attorney on January 3 and explained that there might be some difficulty in filing an answer by the due date. The attorney replied: “Don’t worry. File it whenever you obtain the information.”

The attorney nevertheless had a default judgment entered on January 19, two days after the answer had been due. On January 20 Summerford’s assistant wrote to the attorney, explaining that the judgment debtor, Gladden, owned a one-third interest in a DeQueen store that the appellee was leasing for $750 a month. The letter ended: “We trust this will be of help to you. Please advise if you should have any further questions. ’ ’ It was noted that a copy of the letter was being sent to the circuit clerk who had issued the writ of garnishment.

Upon receiving the appellee’s letter on January 21, the appellant’s attorney did not inform Summerford that a default judgment had been taken two days earlier. Instead, the attorney apparently did nothing until the expiration of the 90-day period allowed by ARCP Rule 60 (b) for modification of a judgment. A writ of execution was then obtained against the appellee, resulting in its petition to set aside the default.

The trial judge was right in granting relief from the default. At the very least there was a misunderstanding about whether the appellee’s time for answering had been extended by agreement. That brings the case within our holding in Martin v. Martin, 241 Ark. 9, 405 S.W. 2d 934 (1966), where we said:

Where an attorney’s failure to resist an application for a default judgment is attributable not to any fault on his part but to a misunderstanding between counsel, there is such an unavoidable casualty that the judgment should be vacated, even after the expiration of the term. Kochtitsky & Johnson v. Malvern Gravel Co., 192 Ark. 523, 92 S.W. 2d 385 (1936).

The appellant also argues that the appellee did not plead or prove a valid defense to the default judgment, as required by ARCP Rule 60 (d). That argument, raised for the first time on appeal, cannot be sustained. Summerford’s testimony, introduced without objection, supported the trial judge’s finding that the appellee owed Gladden only $250, one third of one month’s rent. The appellant was awarded a judgment in that amount. If the appellant thought that Summerford’s testimony was not as precise as it might have been, such an objection should have been made when the omission could have been readily corrected. Heard v. State, 272 Ark. 140, 612 S.W. 2d 312 (1981).

Affirmed.

Hays, J., not participating.


text:
    CROCKETT MOTOR SALES, INC. v. Victor LONDON
    84-94
    671 S.W.2d 187
    Supreme Court of Arkansas
    Opinion delivered July 2, 1984

      L. Gene Worsham, for appellant.

      Cliff Jackson, P.A., for appellee.
   George Rose Smith, Justice.

Victor London brought this action for malicious prosecution against Crockett Motor Sales, from whom London had bought a car on credit in 1975. When the car was repossessed for delinquency in 1976, the motor was missing. London’s complaint alleged that Crockett Motors, without probable cause and with malice, charged London with having taken the motor and transmission to defraud a secured creditor, a felony. Ark. Stat. Ann. § 41-2304 (Repl. 1977). The trial resulted in a verdict and judgment awarding London $7,500 actual damages and $5,000 punitive damages. For reversal Crockett Motors argues that it was entitled to a directed verdict and that the awards are excessive. Tort cases come to us. Rule 29 (1) (o).

The testimony was in dispute. London testified that he fell behind in his payments on the car when the engine developed a knock in April, 1976. London, who is a mechanic, decided to save about $700 by removing the engine himself and having it repaired instead of putting the car in a shop. He had to pay $350 in advance, however, resulting in his becoming delinquent in his monthly payments to the financing bank.

London testified that he had no prior notice before the car was picked up by the bank in his absence and taken to Crockett Motors, a recourse dealer. London, looking for his car, could get no information at the bank and went to Crockett Motors, where he unexpectedly saw his car on their lot. He then talked to Mr. Crockett (who died before the trial). Crockett demanded to know where the motor was and refused to listen to London’s explanation; so London left. A day or so later Crockett called London and a refinancing was arranged, under which London completed his purchase of the car without further difficulties.

In the interval before the refinancing, however, and unbeknown to London, Crockett had sent his employee, James Cabe, to the prosecuting attorney’s office to swear out a warrant against London. Cabe did so, but the warrant lay dormant for more than four years. It finally happened that in 1981, when London went to the police headquarters to pay a traffic ticket, a computer check of his record disclosed the warrant. London was at once arrested, booked, fingerprinted, and held until he arranged for bail. He had to employ a lawyer and go to court for arraignment before the charge was nol-prossed. The present suit was then filed, in 1982.

Crockett Motors argues primarily that it had probable cause for thinking that London had taken the motor with intent to defraud. On disputed facts, however, such a question is for the jury and has rxen in Arkansas for more than a century. Chrisman v. Carney, 33 Ark. 316 (1878); Whipple v. Gorsuch, 82 Ark. 252, 101 S.W. 735, 10 LRA (NS) 1133, 12 Ann. Cas. 38 (1907); Myers v. Andre, 161 Ark. 393, 256 S.W. 363 (1923); Wm. R. Moore Dry Goods Co. v. Mann, 171 Ark. 350, 284 S.W. 42 (1926); Parker v. Brush, 276 Ark. 437, 637 S.W. 2d 539 (1982). In the present case all the issues were submitted to the jury by instructions about which no complaint is made.

The jury could have found, in harmony with the court’s instructions, that by the test of a reasonably cautious man Crockett did not have probable cause for believing that London had been guilty of dishonesty. Crockett refused to listen when London tried to tell him that “I put money down on it, on having the engine repaired, ánd I didn’t want to just lose out.” London had been making his payments regularly before his delinquency and had paid the $3,300 debt down to about $1,500. The jury could conclude that on those facts Crockett was not justified in jumping to the conclusion that in effect London was a thief. Indeed, it is almost impossible to reconcile the existence of probable cause with Crockett’s almost contemporaneous action in refinancing the debt and returning the car to London. There was ample proof to justify the jury in finding a want of probable cause for the prosecution.

Crockett Motors argues that a directed verdict was required for two other reasons. One, the company acted on advice of counsel, because a deputy prosecuting attorney made out the information for Cabe to sign. It is essential to this defense, however, that the facts be fully and impartially stated to counsel. Parker, supra. Cabe testified that he was instructed by Mr. Crockett to go down and get a warrant, but Cabe admitted that he had not heard the conversation between Crockett and London. The jury doubtless concluded that he could not have detailed London’s side of that conversation to the prosecutor. In fact, the prosecutor testified that if he had been told that London claimed to have removed the motor for repairs, he would have tried to verify that fact before approving the charge. Moreover, London denied all along that the transmission in the car was missing, but the information charged that London had also taken that; so the prosecutor was not accurately informed in that particular. The second argument, that the prosecution did not terminate in London’s favor, is without merit, for the entry of a nolle prosequi is a sufficiently favorable termination. Prosser, Torts, 839 (4th ed. 1971).

In view of the gravity and the consequences of an innocent man’s being wrongfully charged with a felony, we do not find the award of damages to be excessive.

Affirmed.


author: Darrell Hickman, Justice.

text:
    GENERAL ELECTRIC COMPANY v. M & C MANUFACTURING, INC. d/b/a MANUFACTURING CO., INC. and Ruby CARRAWAY
    84-96
    671 S.W.2d 189
    Supreme Court of Arkansas
    Opinion delivered July 2, 1984

      Robert C. Lowry, for appellant.

      Richard L. Roper, for appellee.
   Darrell Hickman, Justice.

The question before us is whether a security interest in certificates of deposit, perfected by possession, is superior to a judgment against the owner of the certificates. The trial court was right in holding the possessory security interest superior.

The appellant obtained a judgment of almost $27,000 against the appellees M & C Manufacturing and Ruby Carraway on July 16, 1982. Prior to the judgment Mrs. Carraway had assigned eleven certificates of deposit to the First State Bank of Warren to secure a loan and the bank held these certificates. Five of the certificates were issued by the Warren Bank and six by another bank. The certificates were all either non-negotiable or non-transferable, or both. The bank was served with a writ of garnishment, and it answered claiming its lien.

The appellant’s argument is that the bank did not file security agreements to perfect its claims as required by the Uniform Commercial Code. Ark. Stat. Ann. § 85-9-302 (Supp. 1983). The appellees concede that security agreements were not filed but argue it was not necessary.

The parties agree that the case hinges on whether the certificates are “instruments” as defined in the Uniform Commercial Code since security interests in instruments are perfected through possession. Ark. Stat. Ann. § 85-9-305 (Supp. 1983). Ark. Stat. Ann. § 85-9-105 (1) (i) (Supp. 1983) provides:

‘Instrument’ means a negotiable instrument, or a security or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment; ....

We agree with the weight of authority in holding that a certificate of deposit is an “instrument.”

In First National Bank in Grand Prairie v. Lone Star Life Insurance, 524 S.W.2d 525 (Tex. App. 1975), a bank held a non-negotiable C.D. pursuant to a security agreement. One of the issues, as in the case at bar, was whether possession was sufficient to perfect the security interest. The court held that the C.D. was an instrument because it evidences a right to payment of money and is transferable by delivery of possession in the ordinary course of business. See also Citizens National Bank of Orlando v. Bornstein, 374 So.2d 6 (Fla. 1979); Wightman v. American Nat. Bank of Riverton, 610 P.2d 1001 (Wyo. 1980). The fact that the certificates were non-negotiable and non-transferable in no way prevents them from being instruments because Ark. Siat. Ann. § 85-9-105 (1) (i) provides an instrument is “ . . . any other writing which evidences a right to the payment of money” and indeed that describes a certificate of deposit.

Affirmed.