author: Jack Holt, Jr., Chief Justice.

text:
    ARKANSAS FARM BUREAU INS. FEDERATION and Farm Bureau Mutual Ins. Co. of Arkansas, Inc. v. Eleanor RYMAN
    92-107
    831 S.W.2d 133
    Supreme Court of Arkansas
    Opinion delivered May 11, 1992

      Laser, Sharp, Mayes, Wilson, Bufford & Watts, P.A., by: Alfred Angulo, Jr. and Brian Allen Brown, for appellants.

      John C. Aldworth, for appellee.
   Jack Holt, Jr., Chief Justice.

This appeal concerns a provision in an insurance policy, providing coverage for accidental death arising out of motor vehicle use, which requires the insured to have been wearing a seat belt at the time of the accident in order to effectuate coverage. The case was certified to us from the Arkansas Court of Appeals under Ark. Sup. Ct. R. 29.4(b) as involving an issue of significant public interest.

The facts are not in dispute.

On September 20, 1989, Granville Ryman suffered fatal injuries in an automobile accident. As a member in good standing of the Van Burén County Farm Bureau, having paid his membership dues for 1989 and previous years, Mr. Ryman was insured in the case of accidental death by motor vehicle accident in the amount of $2,000. The applicable coverage provision provided in pertinent part: “However, at the time of the accident, the person insured must be be wearing a factory installed seat belt or lap and shoulder restraint, verifiable by the investigating officer.”

When the investigating police officer arrived at the scene of the accident, paramedics were transferring Mr. Ryman from his car to the ambulance. The officer was unable to determine whether Mr. Ryman had been wearing a seat belt, although proper restraints were present in the car. Mrs. Eleanor Ryman, who was a passenger in the car, could not recall any of the details of the accident or whether Mr. Ryman had been wearing a seat belt. Furthermore, none of the ambulance personnel working at the accident could recall whether Mr. Ryman had been wearing a restraint when he was removed from the vehicle.

When the appellants denied coverage under the policy, Mrs. Ryman filed a complaint in the Municipal Court of Clinton, Arkansas. The parties stipulated to the facts and the matter was submitted on briefs. Summary judgment was granted in Mrs. Ryman’s favor and the appellants appealed to the Van Burén County Circuit Court. The appellants again moved for summary judgment, requesting the circuit court to find that the seat belt requirement constituted a condition precedent to recovery under the policy and, therefore, Mrs. Ryman had the burden of proving the condition was satisfied. Since she could not do so, the appellants argued her claim should be dismissed. Mrs. Ryman responded that the provision actually amounted to an exclusion under the policy and the burden of proof lay with the insurer.

In its judgment, the circuit court did not address the merits of the arguments submitted but, sua sponte, held the provision to be “unconscionable and contrary to public policy.” Mrs. Ryman was awarded the amount of coverage, together with penalties and interest, and attorney’s fees.

The appellants now argue the circuit erred in finding the policy unconscionable and reassert their arguments as to the nature of the provision and who bears the burden of proof. Neither party disputes the case is appropriate for summary judgment, since there are no genuine issues of fact remaining. See Dillard v. Resolution Trust Corp., 308 Ark. 357,824 S.W.2d 387 (1992). We hold the trial court was correct, even though it announced the wrong reason, and affirm. See Smackover State Bank v. Oswalt, 307 Ark. 432, 821 S.W.2d 757 (1991).

The parties are correct in their respective arguments that the existence of a condition precedent places the burden of proof on the insured, see 13A G. Couch, Couch on Insurance 2d., § 79:342 (1983), while the insurer has the burden of proving an exclusion. See State Farm Mutual Auto Ins. Co. v. Baker, 239 Ark. 298, 388 S.W.2d 920 (1965); Financial Security Life Assurance Co. v. Wright, 254 Ark. 791, 496 S.W.2d 358 (1973). We agree with Mrs. Ryman, however, that the provision here involved an exclusion.

“Coverage B” of the policy provides: “The Company will pay for accidental death of a person insured under this policy. Such accident must arise out of the use or occupancy of a land motor vehicle designed and licensed for use on public roads. However, at the time of the accident, the person insured must be wearing a factory installed seat belt or lap and shoulder restraint, verifiable by the investigating officer.” (Emphasis added.)

A similarly worded provision was involved in Life and Casualty Ins. Co. of Tennessee v. Barefield, 187 Ark. 676, 61 S.W.2d 698 (1933). There, the insured lost an eye when a stick was thrown toward the insured’s car by another passing vehicle. The parties were bound by an insurance policy which covered bodily injuries caused by accidents from motor vehicles “provided that. . . there shall be some external or visible evidence on said vehicle of the collision or accident.” (Emphasis added.) This court construed the provision to be in the nature of an exclusion, thereby placing the burden on the insurer to show such external damage to the insured’s car. Likewise, the limiting language under the general coverage provision in this case could be construed as an exclusion.

At the least, the policy is ambiguous as to the nature of the provision. Under the “Exclusions” section of the policy, it states: “No benefits are payable under this policy: . . . . (b) Except as provided under Coverage B above, from accidents arising out of the use or occupancy of any land motor vehicle designed and licensed for use on the public roads. . . .” One interpretation, as Mrs. Ryman argues, is that exclusion (b) requires one to refer back to the limiting conditions regarding the use of a seat belt under “Coverage B”, thereby indirectly placing the seat belt requirement under the list of exclusions. The limiting language can again be found under the “Notice and Proof of Claim” section, which states that the use of seat belts or restraints “must be verified by the investigating police officer signing the uniform traffic report.” The appellants argue the inclusion of the requirement under this section necessarily makes it a condition precedent to recovery.

We have held if there is doubt or uncertainty as to the policy’s meaning and it is fairly susceptible of two interpretations, one favorable to the insured and the other favorable to the insurer, the former will be adopted. Home Indemnity Co. v. City of Marianna, 297 Ark. 268, 761 S.W.2d 171 (1988). Provisions contained in a policy of insurance must be construed most strongly against the insurance company which prepared it, and if a reasonable construction may be given to the contract which would justify recovery, it is the duty of the court to do so. Id.

We thus hold the requirement that the insured be wearing a seat belt at the time of the accident, such fact to be verified by the investigating officer, to constitute an exclusion under the policy, rather than a condition precedent, thereby placing the burden on the insurer to pro.ve Mr. Ryman fell within such an exclusion. Since the insurer was unable to do so, we uphold the trial court’s granting of summary judgment in Mrs. Ryman’s favor.

Affirmed.

Glaze, J., not participating.


source: Caselaw Access Project

author: Robert H. Dudley, Justice.

license: Public Domain

text:
    NORTHLAND INSURANCE COMPANY v. UNION PACIFIC RAILROAD COMPANY
    92-119
    830 S.W.2d 850
    Supreme Court of Arkansas
    Opinion delivered May 11, 1992

      Ponder & Jarboe, by: Dick Jarboe, for appellant.

      Herschel H. Friday and Chuck Gschwend, for appellee.
   Robert H. Dudley, Justice.

The Bill J. Smith Trucking Company owned a tractor and trailer that Darrell Carter was driving across the Union Pacific railroad tracks in Walnut Ridge when the rear of the trailer was struck by the engine of a Union Pacific train. The Smith Trucking Company’s insurer, Northland Insurance Company, paid for the loss of the trailer and filed this subrogation claim against Union Pacific. The jury returned a verdict for the defendant railroad. The plaintiff insurance company appeals and argues that the trial court erred in refusing to give two instructions to the jury. The court of appeals certified the case to us. We hold that trial court ruled correctly, and accordingly, we affirm the judgment.

The proof in the case that determined whether the instructions were proper was as follows. Carter was operating a tractor and trailer unit, which was either 74 or 75 feet long, in a westerly direction on State Highway 412 in Walnut Ridge as he approached Union Pacific’s dual set of tracks that cross the highway. The tracks run north and south and cross the highway at right angles. Carter was an experienced driver and had driven over this crossing many times. He was familiar with, and to some extent relied upon, the railroad’s automatic gates with lights affixed that will lower to stop traffic, and the warning bells and flashing lights that are located next to the highway on both the east and west sides of the dual tracks, but he additionally looked both to the north and to the south and did not see an approaching train. These safety devices are electronically activated by a trigger that is 1,979 feet, or one-third of a mile, from the crossing. At the time he started to cross the tracks, none of the warning devices indicated that he should not do so. He started across slowly because the tracks were rough and because he intended to turn left, or south, onto U.S. Highway 67 at the intersection that was only a short distance past, or west of, the tracks. From the photographs introduced as exhibits at trial, it appears that the intersection is perhaps 50 or 60 feet past the western side of the crossing.

As Carter was crossing the tracks, another long truck approached the intersection from the opposite direction. This second truck, which was facing east, stopped before it reached the railroad tracks because the driver saw the train coming up one of the tracks from the south. The second truck was so long that the back of the trailer blocked part of the intersection behind it and thus prevented Carter from turning left. Carter was “inching” his truck forward and trying to decide how to turn left through the intersection. The decision was compounded when a car, headed in a southerly direction, stopped at the north side of the intersection, or on Carter’s right, leaving Carter, with a 74-foot rig, and apparently only one option, to go straight ahead. Unfortunately, that option was quickly closed when the car on the right entered the intersection and blocked Carter’s lane of traffic. At the same time another car, heading north, entered the intersection from the south, went around the back of the second truck, and stopped just short of the car facing south, in Carter’s lane of traffic. It is possible that another car was behind Carter, but the testimony concerning it consists of one vague statement. In short, there was gridlock ahead of Carter in the intersection. At that time, Carter heard the warning bells and saw the arm of the gate coming down behind him. He testified that his only options were to drive his tractor into the car that was blocking his lane of traffic and try to push it aside, or inch as close to the car as possible and hope that he was clear of the tracks. He knew that he had cleared the first of the parallel tracks, but was afraid that he had not cleared the second. Facing this Hobson’s choice, he chose to inch forward until he was almost touching the car that was in his lane of traffic.

Meanwhile, the brakeman on the train testified that he saw the truck on the tracks about a mile before reaching the crossing, but saw that the truck kept slowly moving forward. He testified that the train was about one-quarter of a mile away from the crossing before he realized the truck was not going to make it across the tracks. The engineer testified that he saw the truck about nine-tenths of a mile from the crossing. He testified that he blew the train’s whistle for almost that entire mile and that, at one-third of a mile from the crossing, the truck was still moving. At that point the automatic triggering device activated the warning bells and lights and lowered the crossing gates. He was operating the train at 50 miles per hour, and he thought the truck still had time to get out of the way. At 50 miles per hour it would take the engine 27 seconds to travel the 1,979 feet to the crossing. He testified that he did not realize that the truck would not clear the tracks until the engine was only about one and one-half or two city blocks from the crossing, and he then made an emergency application of the brakes. By that time the result was fated. The train could not be stopped before it reached the crossing, and the traffic jam had locked the truck in the crossing. The emergency application of the brakes only slowed the train by about 5 miles per hour before it reached the crossing. Because the train was made up of 41 to 43 cars, it would have taken one-half to three-quarters of a mile to completely stop. The train struck the rear part of the trailer, causing the damage that resulted in this case.

Appellant, the company that insured the trucking company against damage to its trailer, first argues that the trial court erred in refusing to give A.M.I. Civil 3d 1802, the instruction about the train crew’s failure to keep a lookout. The proffered instruction was as follows:

All persons operating trains upon any railroad in this state have the duty to keep a constant lookout for property upon, near, or approaching the railroad track. A violation of this duty is negligence.
This does not mean that each member of the train crew must keep a constant lookout, but it does mean that an efficient lookout must be kept by some member of the crew at all times.

Appellant contends that the trial court erred in refusing the proffered instruction for either of two reasons: First, the evidence warranted it and, second, the credibility of the train’s crew was for the jury, not the court, to evaluate. Neither argument has merit. In its first argument, appellant contends that the evidence shows that for almost a mile the train crew observed the truck on the crossing, but did nothing to try to stop the train until it was only one and one-half or two blocks from the crossing. Appellant argues that had the jury been properly charged it could have found that, if the engineer had acted promptly, the train speed could have been reduced more than it was, and that would have given the truck more time to get off the tracks. This argument ignores our established case law concerning the moment at which the duty to take precaution arises for a train crew. In St. Louis Southwestern Ry. Co. v. Evans, 254 Ark. 762, 497 S.W.2d 692 (1973), we held that it was error for the trial court to give A.M.I. 1802 when the trainmen were keeping a lookout and the train could not have been stopped in time to avoid the collision after it became apparent that the driver of the car was not going to stop before crossing the tracks. We quoted from Missouri Pacific R.R. Co. v. Doyle, 203 Ark. 111l, 160 S.W.2d 856 (1942) as follows:

The operatives of trains have the right to assume that a traveler or a pedestrian approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation, and will, in fact, stop before placing himself in peril, and the duty of the railroad employees to take precaution begins only when it becomes apparent that the traveler at a crossing will not do so.

St. Louis Southwestern Ry. Co. v. Evans, 254 at 768, 497 S.W.2d at 695.

Similarly, in this case the train crew had the right to assume that the truck driver would continue to go forward across the tracks, and the duty of the crew to take precautions began only when it became apparent that the truck driver would not get the truck off the tracks. As pointed out in St. Louis Southwestern Ry. Co. v. Evans, supra, A.M.I. Civil 3d 602 provides:

Every person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person will use ordinary care and obey the law. To act on such assumption is not negligence.

Secondly, appellant argues that the trial court should have given the instruction because the only testimony that a proper lookout was kept came from the train crew, and they were interested parties, and the testimony of an interested party is never taken as undisputed. In cases such as this one where the train crew’s testimony was corroborated by other witnesses and is not in any manner inconsistent, it is error to give the instruction. St. Louis Southwestern Ry. Co. v. Evans, supra. Here the train crew testified that they were keeping a proper lookout and from nearly a mile away saw the truck inching along. The truck driver corroborated the fact that he was slowly inching forward at the time the train crew should have first seen him. There were no facts inconsistent with this testimony. Thus, it would have been error to give the instruction. The case relied on by appellant, Missouri Pacific R.R. Co. v. Thomas, 197 Ark. 565, 124 S.W.2d 820 (1939), is distinguished by its facts. There, the plaintiff sued the railroad for the death of her husband who was walking along the tracks when he was struck by the train. The engineer testified that he was keeping a lookout but did not see the decedent until the train was within 450 or 500 feet of him. This testimony was not corroborated by independent testimony and, in addition, the plaintiff put on evidence that the decedent could have been seen for a distance of 1,000 feet or more from the point of impact.

Appellant next assigns as error the trial court’s refusal to give an instruction patterned on A.M.I. Civil 3d 1805 which would have set out the railroad’s duty “to give a warning reasonably sufficient to permit the traveling public to use the crossing with reasonable safety.” Id. Again, the trial court ruled correctly in refusing to give the instruction.

The general rule is that a railroad company is not under a duty to provide warning devices at a crossing, and therefore, a failure to do so is not negligence per se. However, when there is evidence which tends to show that the crossing is “abnormally dangerous,” it is for the jury to decide whether the crossing is in fact “abnormally dangerous” and, if so, whether the railroad breached its “duty to use ordinary care to give a warning reasonably sufficient to permit the traveling public to use the crossing with reasonable safety.” A.M.I. Civil 3d 1805. In Missouri Pacific R.R. Co. v. Biddle, 293 Ark. 142, 732 S.W.2d 473 (1987), we reviewed most of our abnormally dangerous crossing cases and adopted a totality of the circumstances standard for determining when a crossing is abnormally dangerous and when warning devices should be installed, but in this case warnings already had been installed. Even assuming the evidence showed that the crossing was abnormally dangerous, there was no showing that the warning devices that had been installed were inadequate. Thus, the trial court did not err in refusing to give the instruction. To the contrary, the instruction should be given when there is a warning device at an abnormally dangerous crossing, and there is proof tending to show that the warning device is inadequate under the circumstances. St. Louis Southwestern Ry. Co. v. Jackson, Adm’r, 242 Ark. 858, 876, 416 S.W.2d 273, 283 (1967).

Affirmed.


author: Robert H. Dudley, Justice. Robert L. Brown, Justice,

text:
    Peggie Payne PEEK v. SIMMONS FIRST NATIONAL BANK, as Successor Trustee of the Testamentary Trust Under the Will of W.I. Payne
    91-347
    832 S.W.2d 458
    Supreme Court of Arkansas
    Opinion delivered May 11, 1992
    [Rehearing denied June 1, 1992.]

      Jones & Petty, by: John Harris Jones, for appellant.

      Ramsay, Bridgforth, Harrelson & Starling, by: Phillip A. Raley and F. Daniel Harrelson, for appellee.
   Robert H. Dudley, Justice.

The will of W.I. Payne was probated in 1942, and, upon discharge in probate, the assets of the estate were transferred to a testamentary trust that, ever since, has been in administration. Under the terms of the trust, the assets are now to be distributed to the beneficiaries. The successor trustee, appellee Simmons First National Bank, proposed a plan of distribution to which one of the beneficiaries, appellant Peggie Payne Peek, objected. The chancery court approved the proposed distribution, and appellant appeals. We affirm the chancellor’s ruling.

The probated will bequeathed cash sums to various beneficiaries, to be paid immediately, and then bequeathed and devised “all the rest and residue of my estate” to John Collins and R.P. Crayton in trust for specified purposes. The trustees were given full power to sell any of the assets of the trust upon such terms as they saw fit and were authorized to invest any of the funds of the trust in any security they deemed appropriate.

The trust had three purposes. First, the trustees were directed to pay $500.00 per month to the testator’s widow, Nora Burton Payne, for so long as she should live, and at the same time to pay $200.00 per month to the testator’s daughter, Lucille Payne Crayton. This apparently was done and is not at issue. Second, upon the death of the widow, the trustees were directed to pay all of the net income of the estate to the daughter, Lucille Payne Crayton, for “as long as she may live.” The daughter, or the second life beneficiary, died on July 21,1989. The payments to her apparently were made and are not at issue, but this leads to the third purpose and the one at issue in this case. The governing provisions are as follows:

Upon the death of my said daughter, after payment of funeral expenses, expense incident to her last illness and for a suitable monument or marker for her grave out of the funds of my estate, my trustees are directed to make distribution of the rest and residue of my estate as follows, to-wit:
(a) I give, devise and bequeath one fourth (1 /4th) of my said estate to my granddaughter, Peggy Payne Crayton, if living, and to her issue, if any, if not living, and direct my trustees to set aside one fourth in value of my said estate, my trustees being the sole judge as to what constitutes one fourth of the value of said estate. If my granddaughter, Peggy Payne Crayton, has not arrived at the age of twenty five years, then my trustees are to continue to handle whatever she would receive under this bequest, using the income for her maintenance, benefit, support and education, with the privilege and discretion of using all or any part-of the principal, if the income is deemed insufficient, as in their discretion may be deemed necessary or advisable, my said trustees to have like authority and powers as are conferred upon them hereinabove for the handling of my estate until she shall arrive at the age of twenty five years. Upon her arrival at the age of twenty five years, my said trustees shall pay, transfer, convey, assign and/or set over to the said Peggy Payne Crayton the balance of the trust estate held by them under this provision. . . .
(c) After one fourth of my estate has been set aside for my granddaughter, Peggy Payne Crayton, as provided in Section (a) . . . my trustees are authorized, ordered and directed to sell and dispose of the remainder of my estate at such price and upon such terms as in their absolute and uncontrolled discretion is deemed advisable. . . .
Sixth: My. . . trustees are authorized to continue carrying on my farming operations in a manner similar to the way I am now carrying on same, or they may, at any time, in their discretion, sell all or a part of my live stock, farming implements, equipment, etc. used in connection with my farming operations and rent, lease, let or sell all or a part of said land to others at such rentals or price as, in the opinion of my . . . trustees, seems advisable.
Seventh: In the event of the death, resignation or inability of R.P. Crayton to act as a trustee, then John Collins shall act as sole trustee. In the event of the death, resignation or inability of.John Collins to act as a trustee, I hereby designate and appoint W. Herbert Collins, of Little Rock, Arkansas, to act as a substitute for the said John Collins, with like powers and authority as are conferred upon my trustees hereinabove named, the trustees of my said estate being required to furnish an adequate bond to be filed with the Chancery Clerk of Jefferson County, Arkansas. [Emphasis added.]

The testamentary trust nominated John Collins and R.P. Crayton as trustees with W. Herbert Collins to be a substitute trustee for John Collins. In 1944 John Collins and W. Herbert Collins resigned as trustees, and R.P. Crayton began serving as sole trustee. R.P. Crayton died in 1954, and the chancery court appointed A.R. Merritt and J.E. Crayton substitute trustees. J.E. Crayton resigned in 1956, and A.R. Merritt served as the sole trustee until his death in 1976. At that time appellee Simmons First National Bank assumed the role of successor trustee and has served since that time.

In 1990, after the death of the second life beneficiary, the appellee bank filed a petition in chancery court seeking instructions in carrying out its duties as successor trustee. The petition does not contain an inventory of the corpus of the trust, but a balance sheet dated December 31, 1989, reflects cash of about $171,000.00 and real estate, and the balance sheet at the end of 1990 reflects cash of about $ 116,000.00, a crop inventory of about $91,000.00, and real estate. Other instruments in the transcript show that the real estate consists of lots in the Pine Cone Division, several lots in Sherrill, some cemetery lots, and farmland. The farmland consists of fourteen tracts, a few being contiguous, spread over thirteen sections, and totaling 2,570 acres. The farmland contains an uneven distribution of soils, some having rich silt loam, some with clay, and some with both. Some of the tracts are very desirable, while others contain only marginal soils. One hundred and fifteen acres are non-productive and 384 acres have a very low productivity with one forty-acre tract being described as “practically a lake bed.” Only about 75% of the farmland consists of the “base acres” that are allotted by the Department of Agriculture’s Agricultural Stabilization and Conservation Service. Some of the land is not irrigated and cannot be efficiently irrigated, and the improvements are not evenly distributed over the various tracts. The land is farmed in three separate operations by three different tenants who use large pieces of equipment. It is difficult and expensive to move the large pieces of equipment from one area to another. The value of all of the tracts of farmland together exceeds $2,000,000.00. The two salient facts pertinent to the successor trustee’s petition for instruction are that the bulk of the corpus of the trust is the farmland and that the testator’s granddaughter, appellant Peggie Payne Peek, is entitled to more than $500,000.00 in value of the assets of the trust.

In response to the successor trustee’s petition for instruction, the chancellor appointed three commissioners to determine whether appellant’s “one fourth in value” of the trust could be carved out of the farmland. The commissioners reported that one fourth in value could not be set aside from the farmland alone without adversely affecting the value of the remaining farmland. If the remaining farmland had a diminished value, the other ninety-six beneficiaries of the trust would not receive all they were entitled to receive. The successor trustee proposed setting aside to appellant 320 acres known as the “McKinney Road Place,” appraised at $240,000.00, “with the remainder of such share to be distributed in cash following the sale by petitioner [successor trustee] of the remaining real property held by the trust.” The testimony showed that the McKinney Road Place could be set aside without diminishing the value of the remaining tracts. There is a dispute over whether the appellant, through her husband, agreed to the successor trustee’s proposal but, regardless of whether there was an agreement, the successor trustee advertised all of the land except the McKinney Road Place as being for sale. Appellant filed an objection to the proposed distribution. The chancellor approved setting aside the McKinney Road Place for appellant and the sale of the remainder of the land in order to terminate the trust. Appellant appeals from that order.

Appellant first argues that the chancellor erred in ruling that the successor trustee succeeded to the discretion to sell that was granted the original trustees. The italicized provisions of the testamentary trust, quoted earlier, show that under the “use” power and under the power granted in the paragraph labeled Sixth, the original trustees were authorized to sell any or all of the real estate at any time. Thus, the original trustees clearly could have sold the farmland in their sole discretion. The only issue is whether that power was conferred to the successor trustee. The general rule today is:

[W]here the terms of the trust instrument are explicit, those terms are controlling. . . . Frequently, however, there is no express provision in the trust instrument. In such a case the question of the survival of powers depends upon what the settlor intended or what he probably would have intended if he had thought about the matter, the intention or probable intention being determined by the language of the trust instrument as interpreted in the light of all the circumstances. Ordinarily the inference is that he intended that the powers conferred on the trustee should survive. In other words, the rule is that powers survive unless the settlor manifested an intention that they should be exercised only by the trustee originally named.

3 Scott & Fratcher, The Law of Trusts § 196 (4th ed. 1988).

The Restatement provides: “The powers conferred upon a Trustee can properly be exercised by his Successors, unless it is otherwise provided by the terms of the trust.” Restatement (Second) of Trusts § 196 (1959). In opposition to today’s general rule, appellant cites us to a few older cases which hold that personal and discretionary powers of a trustee cannot exercised by a successor trustee, see, e.g., Virginia Trust Co. v. Buford, 123 Miss. 572, 86 So. 356 (1920), and also cites us to some of the language in the cases of Moose v. Moose, 271 Ark. 231, 608 S.W.2d 3 (1980), and Gregory v. Moose, 266 Ark. 926, 590 S.W.2d 665 (Ark. App. 1979). However, the appellant tacitly admits that the holdings of the Arkansas cases are not on point and that the older foreign cases are not in accord with the current trend. We are of the opinion that today’s general rule, stated above, contains the better reasoning. This case is a good example, for here it must have been apparent to the settlor that it would most likely take many years to accomplish the three purposes of the trust. The second life beneficiary of the trust was a relatively young woman whose child, the appellant, was only an infant. As it turned out, it took half of a century to accomplish the purposes. Surely, the settlor knew that over a potentially long period of time it was likely that the named trustees would be unable to serve for the duration of the trust. Yet, he did not indicate in any way that the powers of any successor trustee should be limited. The inference is that he intended that the powers conferred on the trustees should survive, and accordingly, we affirm the chancellor on this point.

There is an additional reason for affirmance on this point of appeal, and that is the chancery court approved the appellee successor trustee’s plan of distribution. Thus, the plan was not dependent solely on the trustee’s exercise of its discretionary power.

Appellant next argues that the plan of distribution is not in accord with the terms of the will. Her argument is that the trust instrument requires the trustee to “set aside” one-fourth of the value of the estate, or farmland, and only after that is done can the rest of the farmland be sold. However, the testamentary trust simply does not provide that appellant is to receive her one-fourth share in farmland. Rather, the “use” provision of the trust provides that the trustees “have full power to sell and convey any part of all of the assets of the estate, including real property.” The paragraph numbered Sixth provides that the trustees may continue the farming operation or may “rent, lease, let or sell all or a part of said land to others at such rentals or prices as, in the opinion of my . . . trustees, seems advisable.” The trustees have had this power since 1942; it is not a power that came into being only upon the fulfilling of the second purpose in 1989. If they had so chosen, they could have sold all or any part of the farmland in 1950, or 1960, or any other year and could have taken the proceeds and invested them in bank certificates of deposit, stocks, bonds, or other similar investments. In providing for a delay in the distribution if appellant were not twenty-five years of age at the date of the death of the second life beneficiary, the settlor wrote that “then my trustees are to continue to handle whatever she would receive under this bequest,” and that “upon her arrival at the age of twenty five years, my said trustees shall pay, transfer, convey, assign and/or set over to the said Peggie Payne Crayton the balance of the trust estate held by them.” There is no language to indicate that the trustees lost this power upon the death of the second life beneficiary, and we do not interpret the language “direct my trustees to set aside one fourth in value of my said estate, my trustees being the sole judge as to what constitutes one fourth of the value of said estate” to mean that the trustees were to lose the power of sale. In sum, when the testamentary trust is examined in its entirety, it is manifest that the settlor did not intend to limit the trustees to only setting aside one fourth of the farmland for the appellant, and the paramount principle in the interpretation of trusts is that the intention of the settlor governs. Little Rock Univ. v. George W. Donaghey Foundation, 252 Ark. 1148, 483 S.W.2d 230 (1972).

Appellant next argues that the successor trustee should be estopped from asserting its plan of distribution because it is contrary to an earlier plan submitted by the successor trustee. The argument is without merit because the successor trustee’s plan is not contrary to its earlier plan. Even if it were, the appellant has not established that she relied to her detriment on the first plan. A party asserting estoppel must prove that in good faith he relied on some act or failure to act by the other party and, in reliance on that act, suffered some detriment. Worth v. Civil Serv. Comm’n, 294 Ark. 643, 646, 746 S.W.2d 364, 366 (1988).

Finally, appellant argues that the chancellor erred by refusing to allow her expenses of litigation, including attorney’s fees. While we have allowed an award of attorney’s fees when an action was successfully prosecuted against a trustee for breach of trust, Liles v. Liles, 289 Ark. 159, 711 S.W.2d 447 (1986), such is not the case at bar. Here, the successor trustee sought the aid of the chancery court in interpreting the trust instrument and in determining its duties. The chancellor did not abuse his discretion in refusing to award an attorney fee to appellant.

Affirmed.

Glaze and Brown, JJ., dissent.

Robert L. Brown, Justice,

dissenting. This case presents the classic dispute between a settlor’s express intent and the trustee’s practical difficulty in complying with that intent. The majority has opted in favor of discarding the settlor’s intent for a more pragmatic result due to the difficulty in carving out one-quarter of the Payne estate for the appellant. I would give credence to the settlor’s directions and reverse the probate court’s decision relating to distribution of the trust estate.

The Payne will is clear. W.I. Payne set up a testamentary trust for the residue of his estate and, as is standard, gave his trustees general fiduciary powers which included the power to continue to operate the farm and sell the assets of the trust estate. He then provided for the distribution of trust income until his wife and daughter died. Payne specifically and explicitly directed the distribution of the trust res following the deaths of his wife and daughter:

(a) I give, devise and bequeath one fourth (1 /4th) of my said estate to my granddaughter, Peggy Payne Crayton, if living, and to her issue, if any, if not living, and direct my trustees to set aside one fourth in value of my said estate, my trustees being the sole judge as to what constitutes one fourth of the value of said estate.
(c) After one fourth of my estate has been set aside for my granddaughter, Peggy Payne Crayton, as provided in Section (a) and in event no child or children are born unto my daughter, Lucille Payne Crayton, my trustees are authorized, ordered and directed to sell and dispose of the remainder of my estate at such price and upon such terms as in their absolute and uncontrolled discretion is deemed advisable. . . .

I agree with the majority that the paramount principle in the interpretation of trusts is that the settlor’s intent governs. Little Rock Univ. v. George W. Donaghey Foundation, 252 Ark. 1148, 483 S.W.2d 270 (1972). This court further has endorsed the age-old principle that words and sentences used in a testamentary trust must be reasonably construed in their ordinary sense to arrive at the intention of the settlor. Fowler v. Hogue, Trustee, 276 Ark. 416, 635 S.W.2d 274 (1982).

Here, Payne’s directions for the distribution of the settlor’s trust estate are exact. The fact that his testamentary trust also provided his trustees with a general power to sell land and administer her one-quarter share prior to age twenty-five does not diminish his directions for accomplishing the ultimate distribution of his estate. .Four witnesses testified that the one-quarter interest could be set aside for the appellant. The settlor’s intent should be honored.

I respectfully dissent.

Glaze, J., joins.


author: Robert H. Dudley, Justice. Tom Glaze, Justice, Robert L. Brown, Justice,

text:
    Steve VANN v. STATE of Arkansas
    CR 91-191
    831 S.W.2d 126
    Supreme Court of Arkansas
    Opinion delivered May 11, 1992

      Martin E. Lilly, for appellant.

      Winston Bryant, Att’y Gen., by: Catherine Templeton, Asst. Att’y Gen., for appellee.
   Robert H. Dudley, Justice.

We hold that A.R.E. Rule 803(25), the “statute” of evidence enacted by the General Assembly, violates the Confrontation Clause of the Sixth Amendment. We make no holding as to its validity in civil cases. The facts in the case are as follows. The appellant was charged with the rape of his three-year-old niece. As provided in A.R.E. Rule 803(25), the State moved for a pre-trial hearing to prove the “reasonable likelihood of trustworthiness” of the three-year-old child’s out-of-court statements to her mother, a nurse, and a policeman. The trial court heard the evidence on the motion and found that the child was not competent to testify, but found that her statements possessed such a “reasonable likelihood of trustworthiness” that they could be admitted in evidence at the trial on the merits. At the trial, the hearsay statements were admitted, and the appellant was convicted of rape and sentenced to forty years in prison. We reverse and remand for a new trial.

In the majority opinion of George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991), we held, “Rule 803 (25) is constitutionally defective on its face, and we so hold.” However, the majority opinion affirmed the use of the hearsay statements because they were “spontaneous,” “consistent,” “plausible,” and “trustworthy.” On the petition for rehearing, the majority denied rehearing and issued a one-judge supplemental opinion stating that the child’s statement to her mother was admissible under Rule 803(25) as well as under Rule 803(2), the excited utterance rule. George v. State, 306 Ark. 374-A, 818 S.W.2d 951 (1991). The one-judge opinion further held that the statement to the child’s father was admissible under the “criteria” of Idaho v. Wright, 110 S. Ct. 3139 (1990). Three Justices, Hays, Glaze, and Corbin, who were familiar with the reasoning expressed in Idaho v. Wright, supra, only concurred with the result of the one-judge supplemental opinion and candidly stated that they would “respectfully hope the Supreme Court quickly reexamines that holding and mercifully overrules it.” George v. State, 306 Ark. at 374-D, 818 S.W.2d at 953. Chief Justice Holt and Justices Dudley and Newbern dissented on the basis of the Confrontation Clause. Id. at 374-E, 818 S.W.2d at 953. The Supreme Court has now handed down another decision involving out-of-court statements by children. White v. Illinois, 60 U.S.L.W. 4094 (1992). The opinion of the Court favorably cites Idaho v. Wright, supra. See White v. Illinois, 60 U.S.L.W. at 4097 n.8. As a result, Justices Hays and Glaze who concurred in the result of the one-judge supplemental opinion in George v. State, supra, no longer think it is probable that the Supreme Court will quickly reexamine its holding in Idaho v. Wright, supra, and now join in holding that, under the reasoning of Idaho v. Wright, Rule 803(25) is unconstitutional. See George v. State, 306 Ark. at 374-D, 818 S.W.2d at 953 (Glaze, J., concurring). All of us recognize the complications caused by our prior diverse opinions on this federal issue and by this opinion hope to draw a clear line for the use of out-of-court statements of children.

Preliminarily, we note that the appellant does not argue that the General Assembly could not validly enact this “rule” of evidence dealing with hearsay, see State v. Sypult, 304 Ark. 5, 800 S.W.2d 402 (1990), and accordingly we do not discuss that issue. The appellant does not argue that the hearsay statement of a child is inadmissible when the child is declared to be incompetent to testify. The Supreme Court has expressly reserved this issue, Idaho v. Wright, 110 S. Ct. at 3147, and we do not address it. We address only the issue of whether Rule 803(25) deprived the accused of his right of confrontation in this case.

The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, mandates that a declarant’s out-of-court statement, when repeated by someone other than the declarant and offered to prove the truth of the matter asserted, may be admitted into evidence only if it bears “adequate indicia of reliability.'’'’ If the statement does not fall within a firmly rooted hearsay exception, such as the “excited utterance,” it is presumptively unreliable and inadmissible for Confrontation Clause purposes. To fall within the admissible category, the evidence must show that “the declarant’s truthfulness is so clear from the surrounding circumstances that the test for cross-examination would be of marginal utility. . . .” Idaho v. Wright, 110 S. Ct. at 3149 (emphasis added). In explaining the evidence required to make the declarant’s truthfulness so clear, the Court’s opinion gave deeply rooted exceptions to the hearsay rule as examples.

In contrast to the deeply rooted exceptions, the Court discussed residual hearsay exceptions, which are comparable to Rule 803(25), as follows:

Hearsay statements admitted under the residual exception, almost by definition, therefore do not share the same tradition of reliability that supports the admissibility of statements under a firmly rooted hearsay exception. Moreover, were we to agree that the admission of hearsay statements under the residual exception automatically passed Confrontation Clause scrutiny, virtually every codified hearsay exception would assume constitutional stature, a step this Court has repeatedly declined to take.

Id. at 3148 (emphasis added).

However, deeply rooted exceptions to the hearsay rule are not the only statements which might be admissible without violating the Confrontation Clause. “Even if certain hearsay evidence does not fall within ‘a firmly rooted hearsay exception’ and is thus presumptively unreliable and inadmissible for Confrontation Clause purposes, it may nonetheless meet Confrontation Clause reliability standards if it is supported by a ‘showing of particularized guarantees of trustworthiness.’” Id. at 3147.

The Court identified some factors that might be used for determining “particularized guarantees of trustworthiness” so that “the declarant’s truthfulness is so clear from the surrounding circumstances that the test for cross-examination would be of marginal utility,” as follows:

The state and federal courts have identified a number of factors that we think properly relate to whether hearsay statements made by a child witness in child sexual abuse cases are reliable. See, e.g., State v. Robinson, 153 Ariz. 191, 201, 735 P.2d 801, 811 (1987) (spontaneity and consistent repetition); Morgan v. Foretich, 846 F.2d 941, 948 (CA4 1988) (mental state of the declarant); State v. Sorenson, 143 Wis.2d 226, 246, 421 N.W.2d 77, 85 (1988) (use of terminology unexpected of a child of similar age); State v. Kuone, 243 Kan. 218, 221-222, 757 P.2d 289, 292-293 (1988) (lack of motive to fabricate). Although these cases (which we cite for the factors they discuss and not necessarily to approve the results that they reach) involve the application of various hearsay exceptions to statements of child declarants, we think the factors identified also apply to whether such statements bear “particularized guarantees of trustworthiness” under the Confrontation Clause. These factors are, of course, not exclusive, and courts have considerable leeway in their consideration of appropriate factors. We therefore decline to endorse a mechanical test for determining “particularized guarantees of trustworthiness” under the Clause. Rather, the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.

Id. at 3150.

Rule 803(25) denies the appellant his right of confrontation since it provides that the hearsay statement of a child is admissible upon showing only that it possesses a “reasonable likelihood of trustworthiness.” On its face, this is a far lesser standard than is required by the Confrontation Clause. As previously stated, the Confrontation Clause requires that the statement bear such “adequate indicia of reliability” that “ the declarant’s truthfulness is so clear from the surrounding cir cumstances that the test of cross-examination would be of marginal utility.” Id. at 3149 (emphasis added).

In the case at bar the trial court ruled that the statement the child gave to her mother was admissible under Rule 803(25) and, in addition, ruled it was admissible under Rule 803(2), the excited utterance rule. Upon retrial, the trial court may again find that the statement should be admitted as an excited utterance without violating the Confrontation Clause because the excited utterance rule is a deeply rooted exception to the hearsay rule. See White v. Illinois, supra. Also see Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990), for the time period for an excited utterance by a child. The trial court held that the statement to the nurse was admissible under Rule 803(25) and also under Rule 803(4), the exception for statements made in the course of securing medical treatment. The Supreme Court has held that the exception for statements made in the course of securing medical treatment is so deeply rooted that admission of evidence under it does not violate the Confrontation Clause. White v. Illinois, supra. Thus, if the statements to the mother and the nurse were the only statements admitted there would be no violation of the Confrontation Clause, and we would affirm this case. However, a police officer interviewed the child, and pursuant to Rule 803(25), the trial court allowed the policeman to testify about the answers the child gave to his questions. This evidence was admissible only under Rule 803(25) and constituted a clear violation of the appellant’s right to confrontation. In its brief, the State tacitly acknowledged that this might be error and asked us to affirm the case on the basis of harmless error.

This case presents the violation of a federal, not a state, constitutional right. The foundation for the harmless error rule in cases involving violations of federal constitutional rights is Chapman v. California, 386 U.S. 18 (1967). There the Court held that there may be some constitutional errors that are harmless and do not require reversal, but the rule for such a doctrine would necessarily be a federal rule, and not one of the various rules fashioned by the several states. The Court then wrote:

In fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence, or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one.
We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. Connecticut, 375 U.S. 85. There we said: “The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”
We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.

Id. at 22, 23, & 24 (emphasis added).

The appellant in this case was convicted of the crime of rape by sexual intercourse with a person who was under the age of fourteen. See Ark. Code Ann. § 5-14-103(a)(3) (1987). The State was required to prove “sexual intercourse” as an element of the crime and that meant the State had to prove “penetration, however slight, of [the victim’s] vagina by [the appellant’s] penis.” Ark. Code Ann. § 5-14-101 (9) (1987). The police officer’s hearsay testimony was the only direct evidence of penetration. All other evidence concerning penetration was circumstantial. Without doubt, there is a reasonable possibility that the officer’s direct testimony about penetration might have contributed to the proof of that element of the crime. As a result, this case does not come within the harmless error rule for cases involving federal constitutional violations.

Appellant additionally argues that the trial court impermissibly limited his cross-examination of the child’s mother. It is doubtful the same factual situation will arise on retrial, and we do not address the point.

Reversed and remanded.

Hays and Glaze, JJ., concur.

Brown, J., dissents.

Tom Glaze, Justice,

concurring. This court’s plurality decision in George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991) (George I), which was supplemented by opinion in George v. State, 307 Ark. 374-A, 818 S.W.2d 951 (1991) (George II), was our first occasion to consider the recent case of Idaho v. Wright, — U.S--, 110 S.Ct. 3139 (1990). In George I, the majority court held that, under Wright, our A.R.E. Rule 803(25) ran afoul of the Confrontation Clause. The majority opinion said that the utilization of the factors listed in Rule 803(25) was impermissible in a trial court’s determination of the trustworthiness and admissibility of an unavailable victim’s hearsay statement. In addition, the opinion stated Rule 803(25) was constitutionally flawed because it did not include the factors the Court in Wright considered relevant in determining such trustworthiness issue, viz., (1) spontaneity and consistent repetition of the child’s statement, (2) mental state of the declarant, (3) use of terminology unexpected of a child of similar age and (4) lack of motive to fabricate.

In George II, the court attempted to retreat somewhat from its original position that all factors or criteria in Rule 803(25) were invalid and instead limited the Rule’s invalidation only to one of the thirteen factors listed under it — 803(25)(A)1(/). In limiting its decision, the George II court concluded the other twelve factors in Rule 803(25) were not invalid and one of those, Rule 803(25)(m), allowed this court to utilize the factors named in Wright even though the trial court in George had not specifically mentioned or applied those factors.

In a concurring opinion in George II, I joined the majority, but I added my disagreement with the Wright rationale and decision. I had hoped that the Wright case would be promptly overturned, but it has not been. While I remain in strong disagreement with that decision, the decision is, nevertheless, binding, and I fear our opinions in George have done little to give guidelines to our trial courts which must deal with the difficult issues involving Rule 803(25) in the aftermath of the Wright holding. Perhaps, we have come closer to clarifying the court’s George decisions today.

In George I, we held all of the criteria in Rule 803(25) violated the Confrontation Clause. I now believe the Wright case required that holding, and the court’s attempt to salvage most of the Rule in George II was in error. Accordingly, I join the majority here in reversing the present case because the trial court followed Rule 803(25) when allowing the child’s hearsay statements into evidence.

Although the child’s statements to her mother and the nurse may be found trustworthy and admissible as excited utterances and medical treatment hearsay exceptions, her statements to the police officer fail to fall within any firmly-rooted hearsay exception or factor set out in the Wright decision.

The dissenting opinion suggests harmless error exists in the present case because the evidence of appellant’s guilt is overwhelming. While I certainly agree sufficient evidence exists to support appellant’s conviction, I cannot say that the police officer’s testimony, relating the child’s only statement that appellant penetrated her, was not prejudicial.

I disagree with the five members of this court who adopt a new Rule 803(25) without submitting the rule to one of this court’s committees or to the bar for comments. The court’s action will no doubt continue to “muddy the waters” on this very important subject. I would have no objection to this court adopting an interim rule like Act 66 of 1992, which the General Assembly narrowly drafted to correct the child hearsay problems raised in Idaho v. Wright, and our George decisions. Instead, this court chooses to adopt a more expansive rule without any input. The members of the bench and bar must now decide whether Act 66 or the new Rule 803(25) is controlling.

By their action, this court’s majority members apparently believe Act 66 is not constitutionally sound. That being true, jurists should have this thought in mind regarding cases already tried, and now being tried, since Act 66’s passage. Act 66 took effect on March 20, 1992.

For my part, I would adopt a new Rule 803(25) like the one provided in Act 66. In doing so, I would use the same four criteria approved by the Wright court and set out in Act 66.

As I have stated before, I am of the view that the General Assembly should provide for the court’s evidentiary rules. Sypult v. State, 304 Ark. 5, 14, 800 S.W.2d 402, 408 (1990) (Glaze, J., dissenting); see also M. Gitelman and J. Watkins, No Requiem for Ricarte: Separation of Powers, the Rules of Evidence, and the Rules of Civil Procedure, (1990), 1991 Ark. L. Notes 27. However, in order to give the bench and bar guidance in this area of law, I would agree to promulgate a new Rule 803(25) comparable to the General Assembly’s Act 66. This court could then later sort out whether Act 66 or the new Rule 803(25) is prevailing law by revisiting the issue, if it chooses, as to whether the court or the General Assembly has the power to enact rules of evidence.

As matters stand with this court’s action today, we will live with the reign of confusion still longer.

Hays, J., joins this concurrence.

Robert L. Brown, Justice,

dissenting. I dissent for two reasons.

First, the majority never states the facts of this case or precisely why the police sergeant’s testimony was error. The majority simply concludes, without saying more, that prejudice resulted.

Secondly, the police sergeant’s testimony was harmless error because a) it satisfied the tests for reliability under Idaho v. Wright; b) it was cumulative to previous testimony and evidence; and c) the evidence of guilt against the appellant was overwhelming.

The majority relies on a 1967 harmless-error case handed down by the U.S. Supreme Court, Chapman v. California, 386 U.S. 18 (1967), in reversing the appellant’s conviction, but fails to consider more recent cases. For example, just this year, the U.S. Supreme Court denied certiorari in a case where the hearsay testimony of a child in a sexual abuse case was held to be error due to the manner in which it was taken, but the error was deemed to be harmless. See State v. Larson, 472 N.W.2d 120 (Minn. 1991), cert. denied, Docket No. 91-487, Jan. 27, 1992.

The Larson case bears a striking resemblance to the case at hand. In Larson, the defendant was charged with sexual abuse of his four-year-old daughter who made statements to a physician’s assistant, a child protection specialist, a clinical psychologist, a social worker, and a police officer. The Minnesota Supreme Court affirmed the admission of statements made to the physician’s assistant under the medical-treatment hearsay exception. The court then went forward and held that the cumulative statements made to the clinical psychologist also fell within the medical-treatment exception and the statements to the child protection specialist were admissible under Idaho v. Wright. Regarding statements made to the social worker and the police officer, the Larson court could not say that they satisfied the Idaho v. Wright tests for reliability. This was because leading and repetitive questions were involved, and there was a “tag team” approach to the interview of the child. The court, however, held that admitting the statements of the social worker and police officer was harmless error beyond a reasonable doubt because the statements were largely cumulative to previous testimony.

In the case before us, the circuit court admitted the police sergeant’s hearsay testimony but made no analysis of the reliability of the child’s statements. This was error, because an analysis is required under Rule 803(25). At the same time, it is clear that when we apply the Idaho v. Wright factors, the testimony was trustworthy. The girl’s statements to the sergeant were consistent with her previous statements to her mother and the nurse. The girl had no motive to fabricate a story against her uncle, whom she admitted she liked. And as a child of tender years, she had no familiarity with sexual matters. The testimony satisfies the Idaho v. Wright factors for trustworthiness, which in and of itself should render the failure of the court to make a Rule 803(25) finding harmless.

The same holds true of the circling of the vaginal area on the drawing of the young girl and the penis on the male drawing. Those acts by the girl were non-verbal conduct and constituted hearsay. Ark. R. Evid. 801(a)(2); see also People v. Bowers, 801 P.2d 511 (Colo. 1990) (the child’s use of anatomically correct dolls to illustrate her story was hearsay). The drawing by the victim was consistent with previous testimony and demonstrations that she had been hurt in her vaginal area by the appellant’s hopping on her and, therefore, satisfied reasonable guarantees of trustworthiness under Idaho v. Wright.

The majority, however, is particularly emphatic about a perceived prejudice from the girl’s circling of the penis on the male drawing. Previous testimony of penetration by the appellant, though circumstantial, was considerable before the introduction of the male drawing. There was testimony from the girl’s mother and the nurse that the appellant was naked and on top of the girl and that he hopped on her and hurt her. There was testimony from Dr. McBryde that she had suffered vaginal abrasions, and there was clear physical evidence of bleeding from the doctor’s examination and from her underpants and the underpants of the appellant.

In making a harmless-error analysis, corroborative evidence of the crime itself is appropriately considered. See Idaho v. Wright, 100 S.Ct. 3139 (1990). In Wright, the Court stated: “We think the presence of corroborating evidence more appropriately indicates that any error in admitting the statement might be harmless, rather than that any basis exists for presuming the declarant to be trustworthy.” 110 S.Ct. at 3150 — 3151. Here, the circumstantial proof clearly evidenced penis penetration without the introduction of the male drawing which, at worst, was cumulative to other evidence. Hence, the introduction of the male drawing was harmless error, especially when coupled with the fact that the total evidence of guilt against the appellant was overwhelming.

One other point deserves emphasis. The U.S. Supreme Court has shown a reluctance in recent cases to make a harmless error determination under Chapman v. California, 386 U.S. 18 (1967), which is the case on which the majority premises its reversal. In 1988, for example, the Court held that a screen in the courtroom which hid the defendant from two teenage girls in a case involving lascivious acts violated the defendant’s confrontation rights. The Court then left the question of harmless error to be decided on remand:

The State also briefly suggests that any Confrontation Clause error was harmless beyond a reasonable doubt under the standard of Chapman v. California, 386 U.S. 18, 24 (1967). We have recognized that other types of violations of the Confrontation Clause are subject to that harmless error analysis, see e.g., Delaware v. Van Arsdall, 475 U.S., at 679, 684, and see no reason why denial of face-to-face confrontation should not be treated the same. An assessment of harmlessness cannot include consideration of whether the witness’s testimony would have been unchanged, or the jury’s assessment unaltered, had there been confrontation; such an inquiry would obviously involve pure speculation, and harmlessness must therefore be determined on the basis of the remaining evidence. The Iowa Supreme Court had no occasion to address the harmlessness issue, since it found no constitutional violation. In the circumstances of this case, rather than decide whether the error was harmless beyond a reasonable doubt, we leave the issue for the court below.

487 U.S. at 1021-1022 (emphasis added).

The sum and substance of the Coy precedent is that the Court refused to hold that a violation of the defendant’s confrontation rights was prejudicial or constituted a “reasonable possibility” that the evidence might have contributed to the conviction but, instead, remanded the issue for a state court determination. The Court further stated that the issue of harmlessness must be decided, not on speculation, but on the basis of the remaining evidence.

The majority concludes that the police sergeant’s testimony was error. Was this because the circuit court failed to make a Rule 803(25) determination or because Rule 803(25) is constitutionally infirm or because the sergeant engaged in improper questioning or for some other reason? The majority opinion leaves us in the dark. It then ends by holding that the testimony was prejudicial because there was a reasonable possibility that it contributed to proof of an element of the crime. This misstates the Chapman standard which alludes to evidence contributing to the conviction. No analysis of harmlessness follows.

I would affirm the conviction and hold that the police sergeant’s testimony was harmless, error because it was trustworthy under Idaho v. Wright, even though the circuit court technically erred in failing to make a determination of reliability under Rule 803(25). I would further hold that the circuit court’s lapse was not prejudicial because the child’s statements to the police sergeant, including the drawings, were cumulative to other direct and circumstantial evidence introduced at trial.


author: Steele Hays, Justice.

text:
    Bennie L. FRY v. STATE of Arkansas
    CR 92-86
    829 S.W.2d 415
    Supreme Court of Arkansas
    Opinion delivered May 11, 1992

      Tom Garner, for appellant.

      Winston Bryant, Att’y Gen., by: Didi H. Sailings, Asst. Att’y Gen., for appellee.
   Steele Hays, Justice.

This is an appeal by Bennie L. Fry from a judgment of conviction on two counts of rape. The jury recommended a sentence of forty years on each count, which the trial court approved, ordering the sentences to run consecutively.

Bennie Fry and Mona Fry have one child born of their marriage. Additionally, Mona Fry has three daughters of two previous marriages: Christine McClanahan, Genevieve Morris and Renee Morris. Bennie Fry was charged by information with the rape of Genevieve and Renee “on or about June or July, 1989.” The girls were ten and nine respectively when the crimes were alleged to have occurred. Fry asserts three points of error by the trial court, none of which are persuasive.

Fry first contends the trial court erred in not granting his motion for a directed verdict as to the count involving Renee. Renee testified she was living with her mother and stepfather and attending school at Floral in the spring of 1989; that school was out “about the end of May.” She said “along these days Bennie would put his hand inside my underpants, stick his finger inside of me, between my legs and move it up and down.” She said it happened more than once though not after school was out. Since the information alleged the offenses occurred in June or July, and Renee testified the incidents did not occur after school was out at the end of May, Fry insists he was entitled to a directed verdict. We disagree.

By statute and case law it is established that generally the time a crime is alleged to have occurred is not of critical significance unless the date is material to the offense. Arkansas Code Ann. § 16-85-405(d) (1987); Bonds v. State, 296 Ark. 1, 751 S.W.2d 339 (1988); Kirkham v. City of North Little Rock, 227 Ark. 789, 301 S.W.2d 559 (1957). That is particularly true with sexual crimes against children and infants. Renee Morris’s testimony that school was out “around the end of May” is not a categorical certainty; school may have extended over into June. Moreover, giving that proof a margin of error produces no prejudice to the appellant, whose defense was that the alleged incidents with Renee and Genevieve, as well as Christine, never occurred and were entirely fabricated.

Appellant also argues that the trial court granted his motion in limine requesting the state be held to proof as stated in the information, specifically regarding the dates of the alleged rape of Renee and Genevieve. We find nothing to chis effect in the abstract. There are two motions in limine, but they pertain to the prospective testimony of Christine. Neither mentions Renee or Genevieve. Ffowever, the Attorney General’s brief observes that the state agreed it would prove “what the information alleged” and the trial court ruled the state’s proof would not extend “beyond July, 1989.” We find nothing in Renee’s testimony that encroaches on that ruling.

Next, appellant alleges the trial court erred in refusing to give a lesser included instruction on carnal abuse in the third degree. Fie relies on Flurry v. State, 18 Ark. App. 64, 711 S.W.2d 163 (1986). Flurry held there was a rational basis under the proof of that case for an instruction on carnal abuse in the third degree as a lesser included offense to rape. But the Flurry court failed to note there are different elements of proof between the two offenses — third degree carnal abuse [Ark. Code Ann. § 5-14-106 (1987)] requires the accused be twenty years of age or above, whereas the crime of rape [Ark. Code Ann. § 5-14-103 (1987)] has no such element. Moreover, the Flurry case came before this court on petition for review and was reversed. We held there was no rational basis for a lesser included instruction when the defendant denies entirely any sexual encounter with the purported victim. Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986). That, of course, was the appellant’s testimony in the case at bar.

Finally, appellant submits it was error for the trial court to deny his motion to exclude the testimony of Christine McClanahan. Christine, the oldest daughter of Mona Fry, testified that soon after Bennie Fry and her mother married appellant sexually abused her, first by fondling and later by intercourse. The acts began when she was nine. By motion in limine appellant objected to the introduction of this testimony in that its probative value was outweighed by its prejudicial effect. The trial court permitted the testimony while admonishing the jury as to its limited purpose.

Appellant argues that since Renee and Genevieve both had testified to a pattern of sexual abuse there was no need to call Christine as a witness to show a pattern of behavior. But that decision rests largely with the trial court and we see no reason to disagree. We have held a number of times that under Ark. R. Evid. 404(b) we will allow testimony of similar acts with other children when it tends to show a proclivity to the same behavior. George v. State, 306 Ark. 360, 813 S.W.2d 792 (1991); Free v. State, 293 Ark. 65, 732 S.W.2d 452 (1987); White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). As the state points out, the incidents involving all three girls began in the proximity of age nine and progressed from fondling to intercourse.

Finding no error, we affirm the judgment.


text:
    NORTHWESTERN NATIONAL LIFE INSURANCE COMPANY v. Bruce A. HESLIP
    91-300
    832 S.W.2d 463
    Supreme Court of Arkansas
    Opinion delivered May 11, 1992

      Stanley, Harrington, & Mars, by: Thomas A. Mars, for appellant.

      Hixon, Cleveland, & Rush, by: DavidL. Rush, for appellee.
   Steele Hays, Justice.

This dispute, now before us for the second time, involves disability benefits claimed under a policy of group insurance issued by Northwestern National Life Insurance Company (Defendant/Appellant) to theNational Guard Association of the United States Insurance Trust. Bruce Heslip (Plaintiff/ Appellee) was a member of the group and an insured under the policy.

In the first appeal we reversed a judgment awarded to Heslip and remanded the case for retrial. Northwestern National Life Insurance Co. v. Heslip, 302 Ark. 310, 790 S.W.2d 152 (1990). The verdict following the second trial was again against Northwestern and the company has appealed anew. Finding no error, we affirm the judgment appealed from.

In 1985, Bruce Heslip was an employee of the Department of the Army and a member of the Arkansas National Guard. He joined the National Guard in August 1962. As a member of the National Guard he was eligible to purchase group disability insurance through the National Guard Association of the United States Insurance Trust (NGAUS). This insurance was underwritten by appellant, Northwestern National Life Insurance Company.

The First Two Injuries

Heslip had three episodes involving his back. The first occurred on March 15,1985, while Heslip was pushing a vehicle at his home. He was unable to work until April 6, 1985. He returned to work on “light duty” status, but was injured a second time on May 17, 1985, while at work, when he had a recurrent eipisode with his back. Heslip spent six days in traction and was unable to work from May 20 to June 10, 1985. From June 10 to June 29 Heslip was on light duty, returning to regular duty on the 29th. Heslip received no benefits from Northwestern for the first injury because he returned to work less than thirty days later. For the second injury on May 17, Heslip received disability benefits from Northwestern for June 16 through June 29, 1985.

The Third Injury

After Heslip had returned to regular duty status, he again had an episode with his back on July 17, 1985, while at work. Heslip applied for and received benefits for this injury from the Department of Labor for September 1,1985 through January 3, 1986. (T.348, T.636-639, Df Ex. 4 and 5).

Heslip subsequently applied for disability benefits pursuant to his National Guard Association of the United States (NGAUS) group insurance policy, and requested benefits from January 4,1986, forward. Heslip claimed to be disabled from his March 15, 1985, injury and requested benefits based on that injury. Northwest Insurance denied benefits on several grounds. Heslip then brought suit and the jury found for Heslip and awarded him $19,800. The trial court awarded a twelve percent statutory penalty and attorneys’ fees of $10,000.

In its first appeal Northwestern’s assignments of error included an allegation that the trial court erred in refusing a requested instruction on estoppel, justified because there was evidence that Heslip had successfully pursued a remedy inconsistent with his suit against the insurance company. We agreed and reversed, finding that the trial court should have given the estoppel instruction to the jury. On retrial, appellant sought an estoppel instruction for the jury which the trial court gave. The jury again found for Heslip and awarded $36,000, the full amount of the benefits pursuant to the policy, plus costs, twelve percent penalty, attorneys’ fees and prejudgment interest.

In this appeal Northwestern raises three arguments for reversal and Heslip cross appeals from the amount of attorneys’ fees and costs awarded. Northwestern argues that the trial court erred in denying its motion for a directed verdict based on the doctrine of estoppel and on a provision of the policy excluding injuries covered by workers compensation. We affirm the trial court on both points as we think those issues were properly submitted to the jury. Nor do we find the exclusion clause in question in the abstract.

As its second point Northwestern argues that the trial court erred in ruling that Heslip’s state law cause of action was not pieempted by ERISA (Employee Retirement Income Security Act), 29 U.S.C. § 1001 et seq. (1985 & Supp. 1991).

ERISA is a comprehensive federal statute designed to promote the interests of employees and their beneficiaries in employee benefit plans. It sets minimum uniform standards and provides for uniform remedies in the enforcement of the plans. See Shaw v. Delta Air Lines, Inc,, 463 U.S. 85 (1983). Northwestern urges that Heslip’s claim should be prosecuted under the ERISA statute, rather than the state common law cause of action for breach of contract. As to the substance of Heslip’s claim, the remedy would not vary materially under state or federal jurisdiction. However, under the state cause of action the insured may recover a twelve percent penalty against the insurance company under Ark. Code Ann. § 23-60-108 (1987), not available under ERISA.

The trial court denied Northwestern’s motion without comment, thus it is not clear if the trial court found the insurance plan did not come under ERISA in the first instance, or whether it came within ERISA but was exempted on some other basis. Be that as it may, we agree with the result.

Under ERISA, coverage is set out in 29 U.S.C. § 1003(a), and the exception in section 1003(b)(1).

(a) Except as provided in subsection (b) of this section and in sections 1051, 1081, and 1101 of this title, this subchapter shall apply to any employee benefit plan if it is established or maintained-—
(1) by any employer engaged in commerce or in any industry or activity affecting commerce;
* * * *
(b) The provisions of this subchapter shall not apply to any employee benefit plan if—
(1) such plan is a governmental plan (as defined in section 1002(32) of this title);
* * * *

While we might first examine whether the plan in this case comes within the scope of ERISA under 29 U.S.C. § 1003 and then determine whether it falls within an exception, see e.g. Kane v. Connecticut General Life Insurance Co., 967 F.2d 489 (9th Cir. 1989), it is not necessary to make that determination because we are satisfied the plan falls within the governmental exception under 1003(b). The burden is on the party asserting the ERISA preemption to establish the existence of a plan which would invoke ERISA’s exclusive remedy provisions. Terry v. Protective Life Insurance Co., 717 F. Supp. 1203 (S.D. Miss. 1989); Kanne v. Connecticut General Life Insurance Co., supra.

The definitions in the act are found in 29 U.S.C. 1002, and the one of concern here is “governmental plan” found at 1002(32):

1002(32) The term “governmental plan” means a plan established or maintained for its employees by the government of the United States, by the government of any State or political subdivision thereof, or by any agency or instrumentality of any of the foregoing.

What constitutes a “governmental plan” for purposes of this act is still a developing area of the law. See e.g. Rose v. Long Island R.R. Pension Plan, 828 F.2d 910 (2nd Cir. 1987); Donald Rubin Inc. v. Schwartz, 559 N.Y.S.2d 307 (A.D. 1 Dept. 1990). However, as the law currently exists, we believe the policy falls within the governmental exception.

Two points must be reviewed to determine whether the plan falls within the exception. The first is whether a governmental entity, as defined under 1002(32), is involved. Second, whether that governmental entity has acted so as to have “established or maintained” the plan. See Rose v. Long Island, supra. Undeniably the National Guard is an “agency or instrumentality” of the United States Government. And see Rose v. Long Island, supra. However, Northwestern submits the Guard itself did not deal directly with instituting or administering the insurance plan. Without citing authority, Northwestern argues the “United States Government” did not actually participate in this plan in any manner. We disagree.

The evidence reflected that the National Guard was a member of the National Guard Association of the United States (NGAUS). NGAUS in turn established the National Guard Association of the United States Insurance Trust (NGAUSIT), which organization was established for the purpose of purchasing insurance benefits for members of NGAUS. The officers of the association serve as trustees and the trust is responsible for providing, or seeking, the insurance benefits the trustees want to provide to eligible members. The trust administers the policy on a day-to-day basis, the “trust investments” are invested by the officers of the association, and the benefits are determined by the trust.

Northwestern tacitly acknowledges that the plan has been established and maintained by NGAUSIT or NGAUS, or both, but implies that neither of these organizations would qualify as a government entity under 29 U.S.C. 1002(32).

An analogous argument was made in Kanne v. Connecticut, supra, involving a private employer. The question was whether the private employer, Harlow Carpets, had established or maintained the program, even though it had never directly dealt with the insurance plan at issue. Harlow belonged to an employer association called the Associated Builders and Contractors (ABC) which administered the plan. Harlow subscribed to the group health insurance plan administered by ABC. “Pursuant to the requirements of ERISA, the plan was established as a trust entity, called the ABC Trust.” The trust purchased the policy from the defendant insurance company, and the plaintiff was an employee of Harlow and was covered by the policy. The insured in Kanne, seeking to avoid ERISA coverage, argued that the plan was not established by the employer, Harlow, because Harlow’s function with respect to the program was minor and ministerial. The court replied:

However, the problem with the [insureds] argument is the apparent assumption that Harlow Carpets’ functions with respect to the plan, determine ERISA coverage. According to ERISA § 3(5):
The term “employer” means any person acting directly as an employer, or indirectly in the interest of an employer, or indirectly in the interest of an employer, in relation to an employee benefit plan, and includes a group or association of employers acting for an employer in such capacity. [Emphasis added.]
29 U.S.C. § 1002(5). Under this definition, ABC can be an ERISA employer for purposes of our analysis.

In effect, the court in Kanne found the association to be the alter-ego of the corporation. To the extent the record was developed in this case, the same is true. Both NGAUS and NGAUSIT were acting for the National Guard, the employer, in the same capacity as the ABC and the ABC Trust were acting for Harlow Carpets in Kanne, supra. Accord see Silvera v. Mutual Life Insurance Co. of New York, 884 F.2d 423 (9th Cir. 1989). With the United States government, or its agent, acting to establish and maintain the insurance plan, we hold the plan is excepted as a “governmental plan” under 29 U.S.C. § 1002(32) and, therefore, not preempted by ERISA.

As its final point, Northwestern argues the trial court miscalculated the prejudgment interest awarded to Heslip. Northwestern requests that even if we do not reverse, we should modify the judgment with respect to prejudgment interest. Northwestern did object to the amount of prejudgment interest in the precedent for judgment, but it has not shown us how the amount is incorrect or excessive.

Turning to the cross-appeal, Heslip argues that the trial court erred in failing to award the total amount of attorneys’ fees sought by his attorneys, i.e., $26,213.00 and costs of $969.49. The trial court awarded attorneys’ fees of $19,500.00, and Heslip argues the amount is inadequate based entirely on the amount of hours spent. We do not regard that as a persuasive reason to overrule the trial court.

The standard of review is one of abuse of discretion, and the trial court is to consider a number of factors in addition to the number of hours worked. We reviewed this recently in State Farm Fire & Casualty Co. v. Stockton, 295 Ark. 560, 750 S.W.2d 945 (1988):

REASONABLENESS OF ATTORNEYS’ FEES
State Farm also argues the amount of the award of attorneys’ fees was excessive. We disagree.
[2, 3] In the event an insurer wrongfully refuses to pay benefits under an insurance policy, the insured may recover the overdue benefits, twelve percent (12%) damages upon the amount of the loss, and reasonable attorneys’ fees. Arkansas Code Ann. § 23-79-208 (1987) [formerly Ark. Stat. Ann. § 66-3238 (Repl. 1980)]. The computation of attorneys’ fees is governed by such factors as the experience and ability of the attorney, the time and labor required to perform the legal service properly, the amount involved in the case and the results obtained, the novelty and difficulty of the issues involved, the fee customarily charged in the locality for similar legal services, whether the fee is fixed or contingent, the time limitations imposed upon the client or by the circumstances, and the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employement by the lawyer. See Southall v. Farm Bureau Mutual Ins. Co. of Arkansas, Inc., 283 Ark. 335, 676 S.W.2d 228 (1984); Equitable Life Assur. v. Rummel, 257 Ark. 90, 514 S.W.2d 224 (1974). While courts should be guided by these recognized factors, there is no fixed formula in determining the reasonableness of attorneys’ fees. Id. Because of the trial judge’s intimate acquaintance with the record and quality of service rendered, we usually recognize the superior perspective of the trial judge in assessing the applicable factors. Id. Accordingly, an award of attorneys’ fees will not be set aside absent an abuse of discretion by the trial court. Id.

Given the trial court’s discretion on this issue, its familiarity with the case and its superior perspective, Heslip has not established an abuse of discretion in the amount awarded.

For the reasons stated the judgment is affirmed.


author: David Newbern, Justice.

text:
    George WILLIS v. STATE of Arkansas
    CR 91-106
    829 S.W.2d 417
    Supreme Court of Arkansas
    Opinion delivered May 11, 1992

      Clyde E. Lee, for appellant.

      Winston Bryant, Att’y Gen., by: J. Brent Standridge, Asst. Att’y Gen., for appellee.
   David Newbern, Justice.

George Willis, the appellant, was convicted of possession of cocaine with intent to deliver and sentenced to life imprisonment and a $20,000 fine. He contends the Trial Court erred by allowing an improperly authenticated laboratory analysis report and a photograph of a mock up of the crime scene to be introduced into evidence. The report was properly authenticated and admissible, and the photograph was not unfairly prejudicial in view of the explanation of the evidence presented to the jury. The conviction is affirmed.

Willis, along with co-defendant Robert Bogard, was arrested when Magnolia police officers were informed that persons in a white Cadillac were selling drugs on the corner of South Madison at Alcardun Heights. Officer McKinnis and another patrolman saw the car. As they approached, they observed Bogard standing at the rear of the car with one foot on the bumper. Willis was sitting on the ground next to the car. At Bogard’s feet was a crumpled sack. The officers opened the sack and found a small pill bottle of what appeared to the officers to be crack cocaine.

1. The laboratory report

The bottle and its contents were sent to the State Crime Laboratory for analysis. A staff chemist identified the substance as cocaine and returned a report to the investigating officer with the chemist’s attestation attached to the manila envelope in which the bottle was sealed. The analysis was admitted as evidence at trial over Willis’s objection.

The objection was that the report was not properly notarized, was hearsay, and was without foundation. A partial notary statement and signature appeared on the report. The Court overruled the objection and stated that an attestation in accordance with Act 889 of 1989 was all that was needed for authentication. The relevant portion of the Act, codified at Ark. Code Ann. § 12-12-313 (a) (Supp. 1991), permits introduction of a drug analysis report when “attested to by the executive director [of the State Crime Laboratory] or his assistants, associates, or deputies.”

In support of his argument Willis relies on Nard v. State, 304 Ark. 159, 801 S.W.2d 634 (1990), where we held that the Statute requires more than the mere signature of the person or chemist who performed the analysis.

Nard objected to the drug analysis report in his case when the prosecution sought to introduce it through the testimony of a chemist who had not personally performed the tests. The State’s witness acknowledged the chemist’s signature, which appeared at the bottom of the report and stated that the chemist who signed was a certified drug analyst who had worked in the laboratory for the past three years. Nard’s objection cited § 12-12-313 and stated that the report had not been properly attested. We agreed because there were not sufficient “indicia of truthfulness” which we found could best be presented with an attestation by the chemist who performed the test.

Willis’s objection in this case also challenged the attestation, but unlike the report in the Nard case, the report contained an attestation by the chemist who purported to have performed the test:

I, Keith Kerr, Chemist, do hereby certify and attest that I personally performed the laboratory tests and prepared the laboratory analysis report in Laboratory Case No. 90-02473.

This statement provides the indicia of truthfulness lacking in the Nard case and satisfies the requirements of the Statute. There is no notarization requirement.

2'. The photograph

The problem with the photograph is that the sack used to depict the crime scene was a large one. The sack in which the drugs were found was a small one which was crumpled. In addition to his objection about the size of the sack, Willis contends the sack used in the photograph was not the “best evidence” because the actual sack was not available for unknown reasons.

The Court admitted the photo with the caveat that the jury be informed of the discrepancies. The prosecutor said he would explain to the jury that the sack in question was much larger than the original sack and the circumstances were different to which the Court stated, “[t]his would be important.”

Berry v. State, 290 Ark. 223, 718 S.W.2d 447 (1986), is cited in support of Willis’s argument and for the proposition that a court should carefully weigh the probative value of photographs against their prejudicial nature. Willis asserts that the photograph sheds no light on any issue, a challenge to its probative value, but makes no meritorious argument with respect to prejudice. It is true that the photo is merely cumulative of the testimony and, therefore, has only marginal probative value, but that does not make it inadmissible.

The testimony shows clearly that the person pictured was standing as co-defendant Bogard had stood, with the sack at his feet, on the day the arrest occurred. There was no possibility of confusion in the identification of the person found nearest to the drugs. The explanation was clear that the sack in the photo was larger. The only possibly prejudicial implication the size of the sack could convey was with respect to the quantity of drugs seized. The laboratory report makes the quantity of drugs seized very clear.

We reverse the Trial Court’s admission of evidence only upon a showing of prejudice and a resulting abuse of discretion. Smith v. State, 303 Ark. 524, 798 S.W.2d 94 (1990); Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988). Given the explanations presented to the jury, there was no prejudice in the admission of the photograph.

3. Rule 11(f)

The record has been examined to determine whether there' are any errors, other than those argued, requiring reversal, and none have been found.

Affirmed.