author: Richard B. Adkisson, Chief Justice. George Rose Smith and Dudley, JJ., P. A. Hollingsworth, Justice,

text:
    Sherman GUY v. STATE of Arkansas
    CR 84-4
    668 S.W.2d 952
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      John W. Settle, for appellant.

      Steve Clark, Atty. Gen., by: Marci L. Talbot, Asst. Atty. Gen., for appellee.
   Richard B. Adkisson, Chief Justice.

Appellant, Sherman Guy, brings this appeal from an order of the Sebastian County Circuit Court denying him post-conviction relief pursuant to Ark. R. Crim. P. 37. On May 7, 1980, a jury found appellant guilty of promoting prostitution and being a felon in possession of a firearm. Appellant was sentenced to two years for promoting prostitution, which was suspended, and two and one half years for being a felon in possession of a firearm. No appeal was taken from this verdict. On September 8, 1983, the trial court held a hearing on and denied appellant’s petition for post-conviction relief alleging ineffective assistance of counsel. On appeal we affirm.

On December 14, 1979, Bettye Faye Lewis, a nineteen year old prostitute was arrested. She admitted to the arresting officers that she was in Fort Smith for the purpose of prostitution and agreed to leave. The officers took her to the motel where she shared a room registered in her name with appellant in order to get her clothing. There, the officers saw in plain view an open briefcase containing, among other things, a .25 caliber pistol. At trial testimony was admitted that the briefcase and gun belonged to appellant, that she was “turning tricks” for appellant, and that she was scared of appellant.

Appellant argues that his counsel was ineffective in omitting to submit a motion for discovery but fails to show how he was prejudiced by the omission. The mere allegation of ineffective assistance of counsel due to failure to make a motion absent a showing of prejudice is insufficient to establish ineffective assistance of counsel. Appellant must show he was prejudiced by the conduct of his counsel and that the prejudice was such that he failed to receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981).

Appellant next argues that his counsel was ineffective because he did not file a motion for severance of offenses, alleging that he was “absolutely entitled” to such a severance. Appellant is mistaken. A defendant has a right to severance “whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character.” [emphasis added] Ark. R. Grim. P. 22.2. Here the question of severance was discretionary since the offense of possession of a firearm could not have been proven without introducing evidence of the offense of promoting prostitution. Ruiz & Denton v. State, 273 Ark. 94, 617 S.W.2d 6 (1981). Also, some consideration may be given to the fact that the proof of both offenses, one for promoting prostitution and one for possession of a firearm by a felon, rested primarily on the testimony of one witness, the prostitute. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983).

Appellant then argues that the fact that his counsel did not file a motion to suppress the firearm constituted ineffective assistance of counsel. The firearm was found in plain view in an open briefcase belonging to appellant in a room registered to the prostitute who was sharing the room with appellant. Under these circumstances defense counsel cannot be said to be ineffective for not filing a motion to suppress.

Appellant further points to his counsel’s failure to move for directed verdict. We have previously held that where there is a question of fact, that fact must go to the jury and to take the question away from the jury by granting a motion for directed verdict would be error. Harris v. State, 262 Ark. 680, 561 S.W.2d 69 (1978). Appellant may not challenge the sufficiency of the evidence on which he was convicted by pointing to his counsel’s failure to move for directed verdict. Challenges to the sufficiency of the evidence are a direct attack on the conviction which must be made on direct appeal. As such, the issue is not cognizable under Rule 37. McCroskey v. State, 278 Ark. 156, 644 S.W.2d 271 (1983).

For this last point appellant contends that his counsel was ineffective because he did not appeal the case. The record reflects that the attorney in question specifically testified at the Rule 37 hearing that he was not asked to file an appeal. Under these circumstances, we cannot say the finding of the trial court was clearly against the preponderance of the evidence.

Appellant concedes that “perhaps a failure on one area would not justify post-conviction relief” but goes on to argue that we should examine the cumulative effect of his counsel’s omissions. We have previously refused to recognize cumulative error in allegations of ineffective assistance of counsel. Henderson v. State, 281 Ark. 306, 663 S.W.2d 734 (1984).

A presumption exists that counsel is competent. Thomas v. State, 277 Ark. 74, 639 S.W.2d 353 (1982). To overcome that presumption, appellant must show by clear and convincing evidence that he suffered prejudice by the representation of counsel and the prejudice was such that he did not receive a fair trial. Blackmon v. State, 274 Ark. 202, 623 S.W.2d 184 (1981). On appeal we will reverse the trial court’s denial of post-conviction relief only if its findings are clearly against the preponderance of the evidence. Thomas v. State, supra. Here we cannot say the findings of the trial court are clearly against the preponderance of the evidence.

Affirmed.

George Rose Smith and Dudley, JJ.,

concur in the results because appellant has served his sentence and the appeal is moot.

Purtle and Hollingsworth, JJ., dissent.

P. A. Hollingsworth, Justice,

dissenting. The appellant has finished serving his sentence and has been released. Therefore, his petition for post-conviction relief has been rendered moot. However, I feel that as a matter of principle, I must dissent to the majority opinion anyway because I am in complete disagreement with virtually every aspect of that opinion.

The appellant’s first point on appeal is that his counsel was ineffective in omitting to submit a motion for discovery. The apellant’s attorney testified that his client was “rather a slow person” — so slow in fact that his affairs were taken care of by his brother and mother because “Sherman was never one to pick out a course of action.” In response to the question, “Was Sherman incompetent?” the attorney replied, “The only indication I had of that was he had had a bicycle wreck when he was a child and split his head open and his mother revered [sic] that when they closed it back up they left some cinders in it.” The attorney then stated that he thought the appellant was capable of standing trial although he had “a bit of difficulty” discussing the case with him and Sherman “was just not able to help me in formulation of a defense.” In spite of these problems, the attorney never had Sherman examined for competency, which in my opinion, was error. The majority states that Sherman was not prejudiced such that he did not receive a fair trial. If the defendant would have been found incompetent to stand trial, then obviously he was prejudiced.

The second point addressed by the majority concerns the attorney's failure to file a motion for severance of the offenses. The majority states that “the question of severance was discretionary since the offense of possession of a firearm could not have been proven without introducing evidence of the offense of promoting prostitution.’’ This is clearly erroneous. To prove that the appellant was in possession of a firearm, the State had to prove that he was a felon and that he possessed a firearm. Neither of those factors have any bearing on whether or not the appellant was promoting prostitution. The fact that the State would need the testimony of the same witness, the prostitute, to prove both charges, is irrelevant. First of all, the prostitute did not appear at the trial anyway, so all that we are really talking about is introducing the transcript of her previous testimony at two different trials. In the second place, a defendant has a right to severance under A.R.Cr.P. Rule 22.2 whenever:

two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan . . .
(b) The court . . . shall grant a severance of offenses: (i) if before trial, it is deemed appropriate to promote a fair determination of the defendant’s guilt or innocence of each offense; . . .

Here, severance of the offenses was necessary in my opinion because the two offenses were not part of a single scheme to promotea fair determination of the defendant’s guilt. By not severing the offenses, the State placed before the jury evidence that the appellant is a convicted felon. Such evidence is necessary to prove the charge of possession of a firearm. It is not necessary to establish the promotion of prostitution and was highly prejudicial. The attorney erred by not filing a motion to sever.

The appellant’s next point is that his counsel failed to file a motion to suppress the firearm. The majority states that “[T]he firearm was found in plain view in an open briefcase belonging to appellant in a room registered to the prostitute who was sharing the room with appellant.” The only evidence that the briefcase belonged to the appellant and that he was sharing a room with the prostitute was the prostitute’s testimony. The arresting officer never saw the appellant in the room; the officer testified that he was outside the room when he saw him. Another officer testified that there were three black males outside the room and the appellant was one of them. The desk clerk allegedly told the officer that a black male was staying in the room with the prostitute. The clerk never identified the appellant as that black male. And finally, among the items seized that were found in the briefcase was a woman’s billfold. The self-interest motivating the prostitute to testify that the briefcase and the gun belonged to the appellant is obvious. With that as the only evidence of ownership, appellant’s attorney should have filed a motion to suppress the gun.

The attorney also failed to move for a directed verdict. The appellant was convicted of promoting prostitution in the first degree. The elements of that crime are as follows:

(1) A person commits the offense of promoting prostitution in the first degree if he knowingly: (a) advances prostitution by compelling a person by physical force or intimidation to engage in prostitution, or profits from such coercive conduct of another; . . .

Therefore, a necessary element of the crime — and one alleged by the State in the information — is the use of physical force or intimidation. The prostitute’s testimony as to this point was as follows:

Q: Did he ever threaten you if you didn’t [work the streets]?
A: Not really threaten, no.
Q: Okay. Did he ever use any physical force against you?
A: Oh, no.
Q: Did he ever slap you around?
A: No.
Q: . Did you feel in any way intimidated, had you not gone out and committed these acts of prostitution?
A: Yeah, kinda.
Q: Why?
A: I don’t know. I guess I was just scared of him.
Q: Okay.
A: I don’t know.
Q: Well, you started dating Sherman, is that correct?
A: Yeah.
Q: Did you have a relationship with anybody else?
A: No.
Q: Okay. Sherman was not your pimp, was he? He was your boy friend?
A: Not really a pimp, no.
Q: Okay. Did you have a feeling for Sherman?
A: Yeah.
Q: Do you still?
A: Yeah.

Since the testimony quoted above was the only evidence offered of force or of intimidation, a motion for directed verdict would have been appropriate for the appellant’s attorney to make. The weak aspects of the State’s case as to the ownership of the gun, a necessary element for the other charge, have already been discussed.

The appellant’s final point is that his counsel failed to appeal his case. The majority states that the attorney specifically testified that he was not asked to file an appeal. The attorney testified that he had no conversations with the appellant concerning his appeal; he only discussed it with appellant’s family. The reason given for this was because, in his experience Sherman “would do what his brother Eddie told him to do and what his mother told him to do, and anything that I had done previously always had to be done through them.” Although the attorney says he testified that he cannot recall whether he ever talked to the appellant after he was convicted, he does remember visiting with the appellant’s mother about an appeal. The attorney stated that the mother was not willing to pay for an appeal. The attorney also testified that the appellant’s family knows about the public defender’s office and about appeals. He could not remember ever explaining that to the appellant however. The appellant’s mother denied telling the attorney that she did not want to appeal. The appellant, in his testimony, stated that he told his attorney he wanted to appeal while they were in the courtroom and again when he was sent upstairs and again two days later. The appellant said his attorney said he would need some more money and that he would file the appeal. The appellant stated he heard nothing further about the appeal and assumed it had been filed. The attorney does not remember if he ever filed a motion to withdraw from the case, but none was ever granted. Trial counsel must continue to represent a convicted defendant throughout any state appeal unless permitted to withdraw from the case. A.R. Cr. P. 36.26. We have held that “[A]n attorney cannot abandon a convicted defendant merely because his appeal must be pursued at public expense. An attorney who wishes to withdraw from a case must obtain permission from the trial court to withdraw . . .” Lewis v. State, 279 Ark. 143, 649 S.W.2d 188 (1983). There was quite a bit of testimony about the animosity between the appellant and his attorney over fees. The attorney testified that before the trial, his client, his mother and brother failed to pay the fee. The attorney then stated:

I do know that I went to trial in an embittered and a hostile environment with the family,... In the couple of days just preceding the trial it became painfully evident that I would not be paid, and I would still be compelled to go to trial. . . And I do recall that I bit the bullet, as they say. I had a responsibility to go to trial and I did that, even though I felt that I had been hoodwinked to do that.

When asked if he had filed a motion to suppress the firearm, the attorney replied; “Well, sir, I can’t recall if I made any effort. If there is not the motion filed, I have not done it, and I think the reason was the animosity and the problems in working with the family.” The attorney maintained however that none of this animosity affected his professional judgment. He also denied that the failure of the family to pay him was why he did not appeal the case. The facts seem to indicate otherwise, however, and I feel that the attorney definitely erred by not filing a notice of appeal, a motion to withdraw, and turning the case over to the public defender’s office. I cannot condone such conduct nor join an opinion which tacitly approves of these actions. I propose no relief for the appellant only because the issue is moot.

Purtle, J., joins in this dissent.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    FARMERS CO-OP OF ARKANSAS AND OKLAHOMA v. STATE of Arkansas et al
    84-25
    669 S.W.2d 440
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      Ball, Mourton & Adams, for appellant.

      Timothy J. Leathers, Wayne Zakrzewski, John H. Theis, Kelly Jennings, Ann Fuchs, Joe Morphew & Michael D. Munns, by: Joseph V. Svoboda, for appellees.
   George Rose Smith, Justice.

The appellant taxpayer is a cooperative doing business in Crawford County. On seven occasions between October, 1976, and March, 1979, the appellant’s monthly gross-receipts tax return did not reach the office of the Commissioner of Revenues in Little Rock until from two to four days after the due date, although each return was deposited in a post office on or before its due date. The Commissioner disallowed $2,585.16 in discounts taken by the taxpayer for prompt payment and also assessed total 10% penalties of $11,194.81. The co-op paid the amount demanded, $13,799.97, and brought this suit against the State and its officers to recover the amount paid.

The case was submitted to the trial court upon the foregoing agreed facts, with a stipulation that if the deposit of the returns in the mail constituted a delivery to the Commissioner, the co-op should recover; otherwise not. The chancellor reasoned that the mailing of a return is not the equivalent of “delivering” it to the Commissioner, as the statute contemplates; so the co-op’s claim was denied. Our jurisdiction is under Rule 29 (1) (c).

We do not think the question is merely whether the mailing of a return in Crawford County is a delivery in Pulaski County on the same day. In fact, the parties go beyond that issue in their briefs. On the agreed facts the pivotal question is what adverse consequences the legislature intended for the taxpayer to suffer when its monthly tax return reaches the Commissioner (whether mailed or not) from two to four days after its due date.

All the pertinent statutory language was contained in the 1941 gross-receipts tax law, which replaced the sales tax act and extensively modified its provisions. Act 386 of 1941. That statute of course must be considered as a whole, bearing in mind that its penal provisions must be strictly construed against the imposition of the penalty. Harber v. Shows, 262 Ark. 161, 553 S.W.2d 282 (1977).

Section 5 of Act 386 provided that it is the duty of all taxpayers, on or before August 15, 1941, “to deliver to the Commissioner” their returns, and thereafter “like returns shall be prepared and delivered to said Commissioner” by the 15th of each month for the preceding calendar month. Section 5 also provided that the remittance of the tax is to accompany the return. “If not paid on or before the 15th of such month, the tax shall be delinquent from such date.” No penalty for delinquency is mentioned in this section. Ark. Stat. Ann. § 84-1906 (Repl. 1960).

Next, Section 9 (b) provided that if any person fails to file a return, the Commissioner shall assess the tax and notify the taxpayer of the amount, with a 25% penalty. The section continued: “In case of failure or refusal to file a remittance . . .with any return required by this Act, within the time prescribed by this Act, 10 per cent of the tax shall be added as penalty; provided, that when a return or . . .remittance is filed after such time and it is shown that the failure to file it was due to reasonable cause, no such addition shall be made to the tax.” § 84-1910.

The third pertinent section, strongly relied upon by the appellant, reads:

Section 14. Discount Allowed Taxpayer for Prompt Payment. At the time of transmitting the returns required under this Act, to the Commissioner, the taypayer shall remit therewith to the Commissioner, except as hereinafter provided, ninety-eight (98%) per centum of the tax under the applicable provisions of this Act, and failure to remit such tax at the time of filing the return shall cause said tax to become delinquent; provided, however, in the event the payment of any tax due under the applicable provisions of this Act becomes delinquent for a period of five days the taxpayer forfeits his claim to the two (2%) per centum discount and must remit to the Commissioner one hundred (100%) per centum of the amount of tax plus any penalty and interest due. This discount is allowed the seller or taxpayer to remunerate him for keeping Sales Tax records, filing reports, collecting the tax, and remitting it when due as required by this Act. [§ 84-1915.]

In view of the section just quoted, the Commissioner was evidently mistaken in disallowing the co-op’s discounts for prompt payments. The statute allows a grace period of five days before the discount is lost, and all the returns in issue were filed before that period had expired.

Furthermore, Section 14 also provides, in the clearest language to be found in the pertinent sections, that “failure to remit such tax at the time of filing the return shall cause said tax to become delinquent.” “[S]aid tax,” however, is the 98% of the tax that may be paid within five days after the due date without being delinquent. We find it hard to believe that when the return is filed, say, three days after its due date, the legislature intended to reward the taxpayer with a 2% discount for his promptness and at the same time to punish him with a 10% penalty for his lack of promptness. Even though Section 5 of the Act contemplated the delivery of the returns to the Commissioner, Section 14 refers to “the time of transmitting the returns.” In the face of such ambiguities in the statute, which must be construed strictly, we are not convinced that the penalty is to be imposed when the returns and the remittances reach the Commissioner less than five days after their due date. (Incidentally, the problem presented by this case will not recur, for in 1979 the legislature changed the law to provide that when a return is received by the Commissioner after its due date, the date of the United States postmark shall be deemed to be the date of delivery. Ark. Stat. Ann. § 84-4727 [Repl. 1980].)

Reversed.


author: Darrell Hickman, Justice. Darrell Hickman, Justice.

text:
    CANNCO CONTRACTORS, INC. et al v. Cullen LIVINGSTON, et al
    84-31
    669 S.W.2d 457
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      David F. Gillison, Jr., and Alex G. Streett, for appellant.

      Drew ir Mazzanti, by: William H. Drew, for appellee.
   Darrell Hickman, Justice.

This suit concerns two deeds executed by W. G. Streett and his wife, Woodie, to the Memphis, Helena and Louisiana Railway Company, and its successors and assigns. The company was succeeded by the Missouri Pacific Railroad Company. Both instruments were for land which adjoined the railroad in Lake Village, Arkansas. The first deed was styled “Deed for Right-of-Way”andwas executed in 1902. It provided that the right-of-way was for so long “as used for the purposes of a railroad and no longer.” A year later an instrument entitled “Deed” was executed conveying another tract of land. It contained no language providing for the purposes for which the land was to be used. Consideration for both was one dollar and the benefits which were to accrue to the Streetts from the building of the railroad.

The Livingstons, Cullen, Bobby and Richard, d/b/a Livingston Pecan and Metal Company, the appellees, had their private business establishment on part of the property in question. One of the appellants, Cannco Contractors, Inc., had a concrete business on another part of the property. Cannco was notified by Missouri Pacific that it had sold its interest obtained in these deeds to the Livingstons. It was in June of 1980 that Missouri Pacific transferred the land by quitclaim deed to the appellees. Cannco contacted the heirs of W. G. Streett and Woodie, and through a series of five quitclaim deeds from these heirs, claimed title to most of the property. A law suit was filed in Chicot Chancery Court to resolve the title dispute. There were claims for damages, rent and other incidental relief. The Streetts’ heirs retained a fraction of the property and joined in claiming part of the land as still theirs.

The chancery court found that the deed for the right-of-way was just a grant of an easement, but that the easement had not been abandoned since the property was being used for railroad purposes because tracks remained in place and the Livingstons were still using them for shipping just as they had been used before. The trial court denied the appellants any relief for their title claims and found that the second deed executed in 1903 was a conveyance in fee; consequently, the court denied the appellants any claim for relief under that deed, entered an order disposing of all the claims of the various parties, found no conspiracy between Cannco and the Streetts, and denied any claim for compensatory or punitive damages in that regard. Both parties appealed. We affirm the decree in part and reverse and remand in part. It is unnecessary for us to reiterate all the testimony of the witnesses or elaborate on all the questions raised because there is ample evidence to support most of the chancellor’s findings, and we cannot say that he was clearly wrong except in two instances.

We find that Missouri Pacific Railroad Company, a successor to the grantee, had abandoned the right-of-way since it had deeded the property to a private individual who was not a successor or assignee. The property was no longer being used for railroad purposes in accordance with the intent of the grantors in the right-of-way deed; therefore, that part of the decree is reversed.

According to the evidence, Missouri Pacific decided to sell the land in question because it was no longer required for railroad operations. That is undisputed. The property was retired from Missouri Pacific’s accounting books and eliminated from its taxation record. The land was sold to the Livingstons for a total consideration of $30,666.00. In connection with the sale, Missouri Pacific entered into an industrial track agreement with the Livingstons, under which Missouri Pacific could use the tracks but had no responsibility to maintain them. It is a common practice to require an industrial track agreement by private owners with connections to Missouri Pacific tracks. A witness for Missouri Pacific testified that Missouri Pacific simply did not sell its railroad property to others to operate a railroad. There was no provision in the agreement binding the Livingstons to continue to use the tracks; the property could be abandoned or sold at any time.

There is no question that Missouri Pacific could abandon its interest in the right-of-way; the only question is whether it did so by its conveyance of the property to the Livingstons and whether the property was no longer used for “railroad purposes” as contemplated in the original 1902 deed of right-of-way. Abandonment has been defined as “to relinquish or give up with the intent of never again resuming or claiming one’s right or interest; to give up absolutely, to forsake entirely, to renounce utterly, to relinquish all connection with or concern in.” Hyde v. Hyde, 240 Ark. 463, 400 S.W.2d 288 (1966). In Gurdon & Ft. Smith Railroad Co. v. Vaught, 97 Ark. 234, 133 S.W. 1019 (1911), a railroad that had received a right-of-way easement for railroad purposes only, did not make use of the property for twenty years and then attempted to convey it. We found abandonment and said:

The question as to whether or not a railroad company has abandoned a right-of-way acquired by it is to a great extent one of intent; but such intention can be established by the acts of the company clearly indicating its purpose not to use such right-of-way and by long nonuse thereof.

In Boyd v. Pierce, 278 Ark. 161, 644 S.W.2d 927 (1983), we construed a right-of-way deed and held there was a clear abandonment when the railroad conveyed property occupied by a gin to a private person. We said: “The railway company produced no proof that it had any immediate or future plans to use the vacant lot in furtherance of its business.”

There are numerous other cases in this state and other states to the same effect. See Miller v. Empire Rice Mills, 228 Ark. 1161, 312 S.W.2d 925 (1958); Barton v. Jarvis, 291 S.W. 38 (Ky. 1937). Abandonment will be more readily inferred when the easement is granted for public purposes than when for private use. Gurdon & Ft. Smith Railroad Co. v. Vaught, supra.

But the trial court found and appellees argue that the tracks are still in existence and the property is being used for “railroad purposes,” exactly as it was before. That the tracks still exist and are used by a private concern, that the track agreement exists, and that the Livingstons are “shippers” within the meaning of Ark. Stat. Ann. § 73-1309 (Repl. 1977), does not change the fact that Missouri Pacific, the successor to the original grantee, deeded the property to a private concern and abandoned it for railroad purposes. The original deed was to a public railroad company, its successors and assigns, for railroad purposes. The Livingstons’ private use was not intended to be within the meaning of the grant of the right-of-way deed. A “railroad purpose” is one which is primarily for the benefit of the public, and not a private individual. Missouri, Kansas, Texas Railroad Co. v. Freer, 321 S.W.2d 731 (Mo. App. 1958).

Here Missouri Pacific may receive incidental benefits because the Livingstons use the railroad to ship their products, but the primary benefit is still to the Livingstons’ business, not the railroad, and certainly not the public. See City of Sturgeon v. Wabash Ry. Co., 223 Mo. App. 633, 17 S.W.2d 616 (1928), (Railroad leased part of its right-of-way for the storage and sale of coal; held not to be “railroad purpose.”) For example, in Miller v. Empire Rice Mills, Inc., supra, the railroad deeded part of the land to a rice mill that it had been given as an easement for railroad purposes. This court said, “[I]t is obvious that they [two parcels of land] were no longer used for railroad purposes.”

The basic rule of construction of deeds is to ascertain and give effect to the real intention of the parties, particularly that of the grantor, as expressed by the language of the deed if not contrary to law. See Shinn v. Shinn, 274 Ark. 237, 623 S.W.2d 526(1981). The intention of the parties must be gathered from the four corners of the instrument. Gibson v. Pickett, 256 Ark. 1035, 512 S.W.2d 532 (1974). In our judgment the Streetts did not intend to sell their land to a private individual or corporation when they granted the easement to the railroad — a public corporation. Nor did they intend for “railroad purposes” to include private enterprises.

The trial court also erred in awarding $300 to the appellees for damage to a switch. There is no evidence to support the court’s finding. The appellees argue that that was simply an oversight on the part of the court and that the $300 was actually awarded for damage to a track, not a switch. Neither can we confirm this from the record. The dispute can be resolved on remand.

We have reviewed the other arguments of the appellant and cross-appellants and find them to be without merit. In view of our ruling, the trial court will have to conduct another hearing to enter a decree consistent with our holding herein.

Affirmed in part and reversed in part.

Supplemental Opinion on Motion for Clarification Delivered June 25, 1984

670 S.W.2d 454

Darrell Hickman, Justice.

The appellants in this case ask for clarification of our opinion. We reversed and remanded, holding that part of the land in question was no longer being used for railroad purposes as the deed of right of way which conveyed that land required. That was the chief question before us concerning one deed. Any request for quieting title is a matter for the trial court. The holding of the trial court regarding the other deed was upheld. What the trial court should do is enter findings, after a hearing if necessary, which will be consistent with our ruling; that is, considering our decision regarding the deeds, the trial court should find whether rent is owed and whether CannCo should be required to move its plant.

Aside from our holding with regard to the deed of right of way, we held that the trial court’s award of $300 for damage to a switch was erroneous so far as the record on appeal is concerned. As stated in the opinion we found that the other arguments, including those raised on cross-appeal, were without merit.


author: Darrell Hickman, Justice.

text:
    Pat STALTER v. COCA-COLA BOTTLING COMPANY OF ARKANSAS and GEYER SPRINGS FOOD CITY, INC.
    84-55
    669 S.W.2d 460
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984
    [Rehearing denied June 25, 1984.]

      Roy Finch, for appellant.

      Laser, Sharp ir Huckabay, P.A., for appellee Geyer Springs Food City, Inc.

      Friday, Eldredge ir Clark, by: Elizabeth J. Robben, for appellee Coca-Cola Bottling Company of Arkansas.
   Darrell Hickman, Justice.

Pat Stalter, the appellant, was injured when a bottle fell through the bottom of a soft drink carton and broke while she was shopping at Food City, a Little Rock, Arkansas, grocery store. She sued Food City and Coca-Cola Bottling Company for damages. After hearing all the evidence, the trial court granted both appellees’ motions for directed verdicts. We review the trial court’s direction of a verdict by considering the evidence in a light most favorable to the non-moving party. Generally, if there is any conflict in the evidence, or we find the evidence is such that fair minded people might have different conclusions, then a j ury question is presented and a directed verdict will be reversed. Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983). We find that the trial court erred in directing the verdicts and reverse and remand.

Appellant was in Food City on December 10, 1981, with her employer, shopping for groceries. She lifted a carton of one-liter Coca-Cola bottles into her basket, and as she did, one of the bottles fell through the bottom of the carton and broke. A piece of glass went through her slacks, boot, and hose, and cut her leg. As the bottle dropped, she said that she hit her right hand against some object and injured it. She was immediately referred by a store employee to a clinic where the cut was stitched. She received other medical care later. Her employer verified her account and said that the carton was “mushy” and looked as though it had been wet for some time.

The Coca-Colas were in a display that was maintained by Coca-Cola Bottling Company. Two or three times a week the company visited the store, cleaned the shelves, and replenished and rotated the stock. A Coca-Cola employee testified that they do not manufacture the cartons they use. He said that their process insures that only a minimal amount of moisture is on the bottle when placed in the carton. Furthermore, he testified that the tensile strength of the carton is actually increased by moisture. The cartons are designed to be used three times but the employee stated that approximately half are reused and those are only reused once. Only a perfunctory visual inspection is made before reuse.

The appellant argues on appeal that the evidence should have been allowed to go to the jury on three theories: res ipsa loquitur, strict liability and breach of implied warranty. We find that the appellant’s case should have been taken to the jury on the theories of res ipsa loquitur and strict liability. Counsel for Coca-Cola argues on appeal that res ipsa loquitur was not pleaded. That theory does not have to be pleaded and the argument was not made below to the trial court. We note here that the complaint merely stated the circumstances of the accident and that there was a defect in the carton. Various theories of liability were vaguely argued to the trial court and discussed on appeal by all parties.

Res ipsa loquitur is a doctrine that, when applied, allows the jury to infer negligence from the plaintiff’s testimony of the circumstances surrounding the accident. W. Prosser, The Law of Torts, § 40 (1971). The jury is permitted but not compelled to find negligence. AMI Civil 2d 610. The procedural effect of the ápplication of the doctrine is that the burden shifts to the defendant to go forward with evidence to offset the inference of negligence. AMI Civil 2d, 610 Comment, Coca-Cola Bottling Co. v. Jones, 226 Ark. 953, 295 S.W.2d 321 (1956); Coca-Cola Bottling Co. v. Mattice, 219 Ark. 428, 243 S.W.2d 15 (1951). To apply the doctrine, the plaintiff must show that the injury was caused by an instrumentality under the control of the defendant, that the accident ordinarily would not happen in the absence of the defendant’s negligence, and that there is no evidence of other causes of the accident. Dollins v. Hartford Acc. & Ind. Co., 252 Ark. 13, 477 S.W.2d 179 (1972). In this case the appellant offered evidence that she was injured because of a damaged soft drink carton, that the carton was under control of both of the appellees, and that she was not at fault. In turn, Food City and Coca-Cola testified as to their procedures regarding the packaging, delivery, and sales of soft drinks.

Problems in applying res ipsa loquitur arise where, as in this case, there are plural defendants and, although the plaintiff has been injured through negligence, he cannot positively point to the defendant responsible. The doctrine may be applied to plural defendants. Nichols v. Nold, 174 Kan. 613, 258 P.2d 317 (1953); 1A L. Frumer and M. Friedman, Products Liability § 12.03[3] (1983). The difficulty in such cases is that no one of the defendants has exclusive control of the instrumentality that allegedly caused the injury. That is why the trial court refused to apply res ipsa loquitur in this case. The control requirement is not always equivalent to exclusive control however. More than one defendant may be liable where both have a duty to the plaintiff and share control. Restatement (Second) of Torts § 328D Comment g. Several injury cases involving soft drinks are illustrative of the position courts have taken.

In Loch v. Confair, 372 Pa. 212, 93 A.2d 451 (1953), the plaintiff was inj ured when a bottle of ginger ale exploded in his hand as he was lifting it from the display. He sued the store and the bottler. The appellate court found that res ipsa loquitur could be applied to both. The court said that once the plaintiff testified as to how the accident occurred, then the bottler could explain the methods used in bottling and the store could explain the manner in which it handled the bottles. The court stated: “It would then have been for the jury to decide whether such explanations satisfactorily exculpated either or both defendants from the charge of negligence.. . .’’As that court found and as we find, it would be unfair to the plaintiff and beyond his ability to establish which defendant had been negligent.

In Nichols v. Nold, supra, a soft drink bottle exploded, injuring the plaintiff. The Supreme Court of Kansas, relying on Loch v. Confair, supra, held that res ipsa loquitur should be applied to both the grocery store and the bottler because:

The real test is whether defendants were in control at the time of the negligent act or omission which either at the time or later produced the accident. The fact that plaintiff did not know which one of the defendants was the cause of the accident, or when or where it took place, was the reason for naming them as parties defendant.

A different result was reached in James v. Childs, 166 So. 2d 77 (La. App. 1964). There the bottom of a soft drink carton gave way and a breaking bottle injured the plaintiff. The plaintiff sued the grocery store and the bottler. The Louisiana court held that res ipsa loquitur could only be applied to the bottler because the store had no duty to inspect the bottoms of the cartons, and because it was highly improbable that a customer or employee of the store caused the damage to the carton.

Although the facts of James v. Childs, supra, are very similar to those in this case, we disagree with the court’s reasoning. Once the appellant explained how the accident happened, it was incumbent upon Coca-Cola and Food City to present proof that the accident was not their fault. Indeed, they both did try to shift the blame. Here, Coca-Cola admitted that they had control over the display; that they arranged it, replenished it, and otherwise maintained it. A Food City employee testified that Food City employees occasionally replaced drinks when the display was empty or replaced a carton that was out of place in the store. Beyond that evidence of shared control, both appellees also had a duty to the appellant. Food City had a duty to exercise ordinary care to maintain its premises in reasonably safe condition. Davis v. Safeway Stores, 195 Ark. 23, 110 S.W.2d 695 (1937). Food City and Coca-Cola both had a duty to use due care in discovering obvious defects. Kraft-Phenix Cheese Corp. v. Spelce, 195 Ark. 407, 113 S.W.2d 476 (1938). The evidence of shared control of the carton, together with the duty each appellee owed the appellant, is such that the theory of res ipsa loquitur should have been presented to the jury. Where there are several defendants who are in control and burdened with the supervision of an instrumentality, it is for them to explain when that instrumentality injures someone. See Schroederv. City & Country Savings Bank, 293 N.Y. 370, 57 N.E.2d 57 (1944). (Plaintiff was injured by a collapsing street barricade constructed for repairs to a bank; res ipsa loquitur applied against the bank, two construction companies and other defendants.) By relying on exploding bottle cases in other jurisdictions, we do not imply that in the future in exploding bottle cases, where both the manufacturer and the store are sued, we will necessarily find enough evidence to present a jury question as to the negligence of the grocery store. But where, as here, there is a defect that is discoverable through the exercise of reasonable care, we find a jury question as to both the negligence of the store and the soft drink company.

We also find that the appellant presented proof substantial enough to raise a jury question as to strict liability. To sustain a claim of strict liability, the appellant must prove (1) that she sustained damages; (2) that the defendant was engaged in the business of manufacturing or assembling or selling or leasing or distributing the product; (3) that the product was supplied by the appellee in a defective condition that rendered it unreasonably dangerous; and (4) that the defective condition was a proximate cause of appellant’s damages. Ark. Stat. Ann. § 85-2-318.2 (Supp. 1983); E. I. Du Pont De Nemours and Co. v. Dillaha, 280 Ark. 477, 659 S.W.2d 756 (1983). The procedural effect of strict liability is that the plaintiff is relieved of proving any negligence of the defendant whatsoever. AMI Civil 2d, 1008 (Supp. 1982). This differs from the application of res ipsa loquitur which requires the defendant to go forward with evidence to offset the inference of negligence, but the primary burden of proving negligence still rests with the plaintiff. AMI Civil 2d, 610 Comment.

The appellant argues that a jury question is presented on the issue of breach of implied warranty. See Ark. Stat. Ann. §§ 85-2-315 and 85-2-314 (Add. 1961). Beyond setting out those statutory provisions, the appellant provided us with no reasoning, argument, or authority as to how the theory fits her case. Furthermore, as the appellees pointed out to the trial court, the appellant failed to plead breach of warranty. In order to state a cause of action for breach of implied warranty, an allegation of notice of the defect to the .seller must be pleaded. L. A. Green Seed Co. of Ark. v. Williams, 246 Ark. 463, 438 S.W.2d 717 (1969); Ark. Stat. Ann. § 85-2-607 (3) (a) (Supp. 1983).

Each of the appellees has filed a cross-complaint against the other. It will be for the jury to determine the respective liabilities of the parties, if any. We reverse and remand for proceedings consistent with this opinion.

Reversed and remanded.


text:
    Mary E. BROWN v. Evelyn Darlene WILSON
    84-67
    669 S.W.2d 6
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      Little, McCollum, Mixon & George, by: James G. Mixon, for appellant.

      Matthews, Campbell Stephens, by: JohnM. Stephens, for appellee.
   Darrell Hickman, Justice.

After the jury returned a verdict for the defendant in this negligence case where fault was admitted, the trial judge set aside the verdict and ordered a new trial. On appeal the defendant argues that the judge abused his discretion. When a trial judge grants a motion for a new trial, the test on review is whether the judge abused his discretion. Clayton v. Wagnon, 276 Ark. 124, 633 S.W.2d 19 (1982). We find no such abuse and affirm the court’s decision.

Mary E. Brown admitted that her vehicle struck the rear of the vehicle driven by Evelyn D. Wilson, when Wilson’s vehicle was stopped. Wilson offered substantial evidence of her subsequent pain and suffering, injury, lost wages, and medical expenses. While Brown offered evidence that Wilson said she was not hurt immediately following the accident and questioned the cause of Wilson’s later complaints, that is not énough for us to overrule the trial judge’s decision that the jury was wrong in its verdict. That is one of the prerogatives of a trial court, and is exercised when the verdict is clearly against the preponderance of the evidence. See Per Curiam of May 17, 1982.

The appellant argues that the trial court’s order reciting the jury’s decision of no “liability” was against the preponderance of the evidence was error because it failed to consider that the jury’s finding could have been based of a lack of proof of causation or damages. We cannot presume that the court’s judgment did not encompass those issues. Review the evidence and the judgment we find no manifest abuse of discretion.

Affirmed.


text:
    Frederic Thomas JONES v. Raymond CANON
    84-76
    669 S.W.2d 7
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      Hubert W. Alexander, for appellant.

      Wilson & Nixon, P. A., by: Walter W. Nixon, for appellee.
   Darrell Hickman, Justice.

This is an appeal of a civil suit for assault and battery. The trial j udge, sitting as a j ury, found that Frederick Thomas Jones, the appellant, committed an assault and battery on Raymond Canon and awarded Canon $525.00 compensatory and $1,000.00 punitive damages. We affirm the judgment.

Jones bought a used van from T. W. Davis at Cash Auto Sales in Jacksonville for $1,000.00. T.W. and Evelyn Davis owned the business. Canon shared space and expenses but had his own cars to sell. A month later, Jones returned, unhappy with the deal he had made. Jones asked Davis to repurchase the van for $1,500.00 to cover his costs in repair. Davis refused. Jones picketed the business with signs on the van, one of which read: “Cash Auto Sales-$ 1,500 sold me this piece of junk.”

On October 12, 1982, at a nearby Dairy Queen, a confrontation occurred involving Jones, Mrs. Davis and Canon. Essentially Canon said that Jones, without any provocation, hit him in the head with a rock; Mrs. Davis corroborated Canon’s story, and Jones denied it. Canon had medical expenses of $25.00 and six days lost work (estimated income of $1,000 — $1,500 per week.)

It was for the trial court to determine the weight of the evidence and credibility of the witnesses. We cannot say there was no substantial evidence to support the finding of wrong or award of damages. The amount of damages, both compensatory and punitive, was a question for the trier of fact. Robertson v. Sisk, 115 Ark. 461, 171 S.W. 880 (1914). Punitive damages may be awarded in an assault case where the assault was unwarranted or with malice aforethought. Collier v. Thompson, 180 Ark. 695, 22 S.W.2d 562 (1929).

We find no legal reason to question any finding below.

Affirmed.


author: John I. Purtle, Justice. Steele Hays, Justice, dissenting.

text:
    TRANSIT HOMES, INC. and Elgin W. JONES v. John H. BELLAMY, Jr. and Grace BELLAMY
    83-191
    671 S.W.2d 153
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984
    [Opinion Amended on Denial of Rehearing July 2, 1984.]

      Pollard & Cavaneau and Rieves <b Mayton, by: Elton A.

      Rieves, III, Connie Lewis Mayton, and Jerry Cavaneau, for appellants.

      Daggett, Van Dover, Donovan ¿r Cahoon, by: Robert J. Donovan and Jesse P. Daggett, for appellees.
   John I. Purtle, Justice.

A Lee County jury awarded John and Grace Bellamy $825,000 damages arising out of an automobile accident. The jury also awarded the Veterans Administration the sum of $95,500 on its subrogation claim for the cost of medical services rendered as a result of the injuries suffered by John Bellamy. Both parties appeal. About a dozen points are argued by appellant for reversal, and cross appellant alleges five points of error. We will not set them out here individually but we will consider all of the arguments. We find prejudicial error and reverse and remand for a new trial.

Transit Homes, Inc. contracted to move a mobile home from Missouri to Texas. The driver, Elgin W. Jones, pulled the mobile home along Interstate Highway 40 between Brinkley and Biscoe, Arkansas. A wheel from a mobile home was found lying in the traffic lane on 1-40. A wheel was missing from the mobile home being pulled by Elgin W. Jones. The wheel was the same type as the other wheels underneath the mobile home being transported by appellants. The tire and wheel were in the outside lane for westbound traffic on 1-40. The mobile home was stopped on the westbound shoulder of the road about a mile west of the tire and wheel when this incident occurred.

John Bellamy was westbound on 1-40 in his specially equipped van with his wife, Grace, riding with him. He had been classified as a quadriplegic since he was injured in an automobile accident in 1951. The van was modified in such a manner as to allow Bellamy to steer it by use of one arm inserted into a device on the steering wheel. Bellamy first observed an object in his lane of traffic when he was about 150 feet from it. At that time he released the accelerator but did nothing else because he intended to pass over what he at that time perceived to be a retread from a tire. However, when he was about 60 feet from it his wife recognized it was a wheel and warned him about it. His final decision was to swerve to the right shoulder and drive past the tire and wheel. However, he failed to clear the object and when his left wheels struck it, the van flipped over and injured the appellees. At the time of this occurrence the surface of the highway was either wet or damp.

Appellants’ first assignment of error is that the court improperly failed to grant a new trial. The tenth and eleventh arguments are also procedural. Therefore, we consider the three points together. Appellees failed to respond to appellants’ motion for a new trial within the time provided by ARCP 78 (b) which requires a response by a respondent opposing a pleading or a motion. ARCP 55 (a) requires the court to enter default judgment against a party who fails to defend when a judgment for affirmative relief is sought against him. ARCP 59 deals with new trials and amendment of judgment. Section (d) states: “When a motion for a new trial is based upon affidavits, they shall be filed with the motion. The opposing party shall have 10 days after service within which to file opposing affidavits which period may be extended for an additional period not exceeding 20 days . . .” We know of no provisions or precedent which would allow a new trial by default. Certainly ARCP 59 does not provide for such default and it is the rule which covers the grounds and procedures for a new trial. The trial court is charged with exercising discretion in the matter of granting a new trial. To allow a new trial by default would be to remove the discretion of the trial court in the matter. ARCP 59 does not require a response to a motion for a new trial. Of course if affidavits are filed then it becomes incumbent upon the opposing party to respond with opposing affidavits and a pleading.

The appellants also argue that the trial court erred in denying the motion to bifurcate the trial as to liability and damages. ARCP 42 (b) specifically provides that a trial court may bifurcate any separate issue presented in the case. This rule was considered in the case of Hunter v. McDaniel Bros. Const. Co., 274 Ark. 178, 623 S.W.2d 196 (1981). In Hunter we specifically held that it was within the discretion of the trial court to separate the liability phase from the damage phase of a trial. In Hunter we stated: “The purpose of Rule 42 (b) is to further convenience, avoid delay and prejudice, and serve the needs of justice.” We then held that absent an abuse of discretion the decision of the trial court would not be disturbed on appeal. We cannot say that the trial court abused its discretion in this matter.

Appellants insist the court erred in failing to grant a new trial after both parties had filed notice of appeal. Appellees’ notice was termed cross-appeal. We know of no case which requires the trial court to grant a new trial simply because both sides give notice of appeal. The fact that appellees designated their appeal as a “protective appeal” is of no significance. ARCP 61 states that harmless error such as a defect in a ruling or order is not grounds for setting aside and vacating a verdict. In looking at substance over form we can readily see that appellees would be most happy if the judgment were affirmed in toto. Also, there is merit to some of the arguments presented in the “protective appeal.” We do not find that it was error for the trial court to fail to grant a new trial because both parties gave notice of appeal.

Six of appellants’ arguments for reversal relate to evidence. Therefore, these points will now be discussed. The first and perhaps strongest argument presented here is that the court erred in admitting evidence of the condition of the mobile home subsequent to the occurrence here in question. There seems to be a considerable dispute on the facts as to whether the mobile home was equipped with defective wheels. Much of the evidence relating to the subsequent condition of the mobile home was contained in an evidentiary deposition at which it was stipulated that “all objections are to be made at the time the deposition is being taken.” Forty-two photographs of the mobile home were taken at the new location in Texas. Objections to the introduction of these photographs were not made at the time of the deposition. The photos were made nine months after the accident and after the mobile home had been towed another 600 or 700 miles from the scene of the accident. Generally speaking, subsequent conditions are not admissible for the purpose of showing the condition of the object or instrument at the time of the occurrence. Eudora Motor Company v. Womack, 195 Ark. 74, 111 S.W.2d 530 (1937). It is the general rule that evidence of a prior condition may be shown by evidence of a subsequent condition only where the condition has not changed and where the lapse of time was not of sufficient duration to make a material difference. McKnight v. Ellis, 225 Ark. 384, 282 S.W.2d 806 (1955). In the present case the plaintiffs’ expert testimony indicated that all the damages shown in the photos could have occurred after the accident between Brinkley and Biscoe. As was stated in Eudora Motor Co. v. Womack, supra, “proof of the existence of a present condition or state of facts does not raise any presumption that the same condition or facts existed at a prior date.” Applying this test to the facts of this case we do not think it was proper to admit the subsequent condition proof. We must also dispose of the appellees’ argument that the stipulation of the parties, at the time the deposition was taken, is controlling and that all objections to the relevancy of the evidence were waived unless objection thereto was made at the time of the deposition. Use of depositions is generally controlled by ARCP 32. ARCP 32 (c) (3) (A) states: “Objections to the competency of a witness or to the competency, relevancy or materiality of testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is one which might have been obviated or removed if presented at that time.” (Our emphasis.) This rule also states that objections may be made at the time the deposition is offered into evidence subject to the provisions of ARCP 28 (b). ARCP 29 permits stipulations regarding discovery procedures. It reads as follows:

Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken before any person, at any time or place, upon any notice and in any manner and when so taken may be used like any other depositions; and (2) modify the procedures provided by these rules for other methods of discovery.

The reporter’s notes following ARCP 29 state that, “[sjhould agreements of counsel get out of hand, the court has the power under Rule 29 to overrule or reject any stipulation or agreement of counsel. Therefore, any problems which may arise in this area may be corrected by the court on a case by case basis.”

Appellants argue the court erred in refusing to permit proof of appellee John Bellamy’s prior driving record. All parties agree that the general rule is that evidence of prior accidents may not be introduced for the purpose of proving negligence. During voir dire of the jury, counsel for appellees repeatedly asked prospective jurors whether they had a preconceived notion that handicapped drivers were not as safe as drivers without a handicap. At one point a juror asked, “What was his past driving record?” The court responded, “That, sir, is not part of this jury selection.” The exception to the general rule that prior acts of negligence are inadmissible is in a case where the opposite testimony is presented by the other side. We have often said that where one party introduces incompetent testimony he cannot complain if the other party is allowed to introduce evidence directed to the same issue. Ark. State Highway Comm’n. v. Pittman, 251 Ark. 709, 473 S.W.2d 924 (1971). Evidence introduced by the appellees was to the effect that John Bellamy held a valid driver’s license and that some handicapped drivers are better than average drivers. This evidence coupled with the questions asked during voir dire opened the gate for the appellants to attempt to show negligence because of prior conduct in driving. On retrial this matter should not become a problem.

The court refused to allow evidence that Bellamy was taking certain medications and evidence of the effect such drugs would have on his driving ability. He was taking valium, diabinese, anturane, and pro-banthine. The trial court allowed proof that Bellamy was taking valium but refused to allow proof of the other drugs or their common effects on people. No doubt the use of valium with other drugs will sometimes produce a different effect than if taken alone. Uniform R. Evid. 401 states that relevant evidence is evidence having a tendency to make the existence of any consequential fact more probable or less probable than it would be without the evidence. In the case of Watson v. Frierson, 272 Ark. 316, 613 S.W.2d 824 (1981) we held that evidence establishing levels of alcohol in a person’s blood stream was proper. A similar decision was rendered in a Workers’ Compensation case. St. Paul Ins. Co. v. Touzin, 267 Ark. 539, 592 S.W.2d 447 (1980). If evidence of medication is introduced by either party at the next trial the appellee will be free to introduce evidence that his driving ability was not diminished because of the ingestion of these drugs.

Appellants argue that the court erred in permitting witness John Bentley to render an opinion based upon an experiment where no proper foundation was laid. Bentley’s opinion was that Bellamy could not have avoided striking the wheel under the existing circumstances. In order to recreate the exact circumstances it would have to have been shown that the coefficient of friction at the time of the test was exactly the same as that at the time of the accident. It is likely impossible to create such a condition. Therefore, the rule in Arkansas is that such experiments or tests must be conducted under conditions substantially the same as the conditions in existence at the time of the occurrence in issue. Henshaw v. Henderson, 235 Ark. 130, 359 S.W.2d 436 (1962). The conditions at the time of this occurrence were described differently by various witnesses. It is sufficient if the experiments are conducted under circumstances which are substantially similar to those at the time of the occurrence. Dritt v. Morris, 235 Ark. 40, 357 S.W.2d 13 (1962). Therefore, we are of the opinion that it was not improper to allow the expert’s testimony, and the variances in the existing conditions were matters of credibility.

It is also argued that the court erred in allowing an economic expert to testify about the amount of future medical expense. Witness Huntley calculated that the expense for future hospital services would range between $709,371.41 and $1,560,772.00. The argument is that no proper foundation was laid prior to presentation of this evidence. Another witness testified that Bellamy would require hospitalization 40% of the time. This witness admitted on cross-examination that Bellamy suffered from many serious illnesses and had spent much of his time in the past in a hospital.

There does not appear to be any clear-cut testimony that any particular amount of the time Bellamy expects to spend in the hospital is attributable to this occurrence. Appellants had initially objected by motion in limine to testimony regarding future hospital and medical expense. Objections were also raised at the trial. It is quite clear that appellants properly objected to this testimony. The testimony as submitted in the trial of this case was improper because a proper foundation was not established before the testimony was given. Because the proof and presentation of evidence will undoubtedly not be the same on retrial we cannot say that this evidence may not be presented in proper form.

The jury was permitted to view a videotape depicting a “day in the life of John H. Bellamy, Jr.” Naturally it was impossible to separate the injuries resulting from the accident in question and those received previously. The prior injuries were more pronounced in the film than were the ones under consideration. He was á quadriplegic before the accident and had to be lifted from his bed and his chair very much in the same manner as was done in the ‘ ‘day in the life” film. Whether to admit such evidence generally lies within the sound discretion of the trial court. However, due to the special circumstances of this case the prejudicial effect of this evidence obviously outweighed its probative value.

Appellants’ final two arguments question the propriety of the jury instructions. Appellants contend the trial court erred in instructing the jury on sudden emergency. The court gave AMI 614 as instruction number 22 over the general and specific objection of appellants. The primary objection was on the grounds that there was no evidence of a sudden emergency. Before a person is entitled to the benefit of having AMI 614 given he must have been aware of the danger and have perceived the emergency and acted in accordance with the stress caused by the danger. If the instruction is warranted it informs the jury that the actor is not held to the same judgment “required of him in calmer and more deliberate moments.” Bardwell v. McLaughlin, 257 Ark. 782, 520 S.W.2d 277 (1975). There is evidence in this case which if believed by the jury could have created a sudden emergency. Mathematical computations indicated that Bellamy would reach the object in the road in less than 2 seconds after he observed it. He testified he was driving 55 m.p.h. when the tire became visible to him and that he thought of pulling to his left but found a vehicle blocking a lane change. He then disengaged the cruise control and tried to decide what to do. He as in a position where a speedy decision had to be made. We cannot say from the facts in this case that he was not confronted with a sudden emergency. We find no error in the giving of this instruction.

The matter of future medical expenses as an element of John Bellamy’s damages is disputed. By instruction number 26 (AMI 2201) the jury was instructed, among other things, that Bellamy should be allowed to recover the present value of future medical care, treatment and services. The Veterans Administration had intervened in the case pursuant to 42 U.S.C. § 2651 for the cost of both past and future medical services. However, the Veterans Administration apparently abandoned its claim for the cost of future services. It was awarded $95,000 for the cost of past medical services. It has been held in other jurisdictions that when the government fails to pursue its remedy in such a case the damages may be recovered by the plaintiff. Arvin v. Patterson, 427 S.W.2d 643 (Tx. Civ. App., 1968); Whitaker v. Talbot, 122 Ga. App. 493, 177 S.E.2d 381 (1970). Therefore, upon retrial if the Veterans Administration does not pursue its subrogation claim it will again be proper to give this instruction.

The appellees cross-appeal and argue: 1) that the court improperly excluded from evidence a photograph of the decal affixed to the side of the mobile home; 2) that the court erred in refusing to direct a verdict on the issue of liability; 3) that the court improperly refused to give AMI 611; 4) that it was error to admit a videotape made in California; and 5) that the court erred in giving appellants credit for the allotment given to John Bellamy in aid and attendance.

In the first instance, evidence concerning the decal affixed to the mobile home was relevant for the purpose of identifying the home in relation to other matters. We see no reason why this evidence should be excluded. Upon retrial this evidence should be admitted.

The facts of the case clearly show that the court correctly overruled appellees’ motion for a directed verdict. The appellants refused to admit that the wheel and tire belonged to the unit which they were moving. Neither the legislature nor this court has adopted the theory of strict liability in a case of this nature. Therefore, strict liability is inapplicable on retrial of this case. The mere happening of an accident is not conclusive of liability on the part of anyone even in a strict liability context. Again, this is a matter which will probably not be presented in the same manner on retrial. As presented in the original trial there were questions of fact to be decided by the jury. It was not error to refuse to direct a verdict.

The court refused to give AMI 611 which concerns the doctrine of res ipsa loquitur. This court has frequently held that in order for res ipsa to apply, the plaintiff must be free from negligence. Moon Distributors v. White, 245 Ark. 627, 434 S.W.2d 56 (1968). The doctrine should be applied where the evidence shows that the defendant alone was in control of the object causing the loss. Therefore, we think the evidence was in such a state that the court properly exercised its discretion in refusing to give AMI 611.

As to the appellants’ videotape, we have partially discussed this matter in preceding paragraphs. We addressed the same type of evidence in Carr v. Suzuki Motor Co., 280 Ark. 1, 655 S.W.2d 364 (1983). There we stated, “It is well settled that when a test or experiment is an attempt to reenact the original happening, the essential elements of the experiment must be substantially similar to those existing at the time of the accident. . . [A]lthough it was not necessary that conditions of an experiment be identical to those existing at the time of the occurrence, there must be a substantial similarity, and the variation must not be likely to confuse and mislead the jury.” Admittedly the circumstances surrounding the test were not duplicated, but they were so close that the trial court properly exercised its discretion in permitting the videotape to be introduced.

We do not think the court erred in allowing appellants credit for the $1,257.00 which the Veterans Administration was paying Bellamy in aid and attendance expenses. This sum was being paid prior to the occurrence here under consideration. It is not collateral income being received on account of the injuries received in the accident here in question. If this amount was being paid to Bellamy as a result of injuries received in this occurrence, it would have been subject to our collateral source rule. See Amos, Adm’x v. Stroud & Salmon, 252 Ark. 1100, 482 S.W.2d 592 (1972).

For the reasons stated the case is reversed and remanded with directions to retry the case in a manner not inconsistent with this opinion.

Reversed and remanded.

Hickman, J., not participating.

Hays, J., dissents.

Steele Hays, Justice, dissenting.

This case is being remanded for a second trial entirely on evidentiary rulings which neither individually nor collectively warrant reversal. The case was tried fairly and the appellants had the opportunity to present their proof on an equal footing with appellees. Thus the litigants, the county and the system itself are being put to the heavy burden of a second trial to no real purpose, as the proof fully supports the verdict.

We have recognized that the admissibility of evidence is an inexact science at best, that the relevancy of evidence is a matter for the trial court’s discretion, subject only to the very limited review applicable to discretionary rulings. Hamblin v. State, 268 Ark. 497, 597 S.W.2d 589 (1980). Even when it can be said the trial court was technically incorrect in admitting or excluding evidence it is reversible only if we can determine on appeal that the rights of one party were substantially affected by such evidence. Unif. R. Evid. 103. None of the three points relied on for reversal rise to that level.

It is said that evidence of the condition of the underparts of the mobile home some nine months after the collision should not have been received to show the wheel was not lost unavoidably, but due to appellant’s negligence. In the first place, the conditions described beneath the mobile home were not the kind that would be materially altered by the passage of time or distance, and the trial judge was in a far better position than we are to determine whether this evidence should have been allowed. In the second place, the majority gives no answer at all to appellees’ argument that appellants should have objected when the evidentiary deposition of the witness by whom this proof was offered was taken under a written stipulation that.all objections would be stated during the deposition. The record supports appellees’ assertion that this was the stipulation and had appellants made timely objection, appellees might have been able to show that the later conditions were unchanged from the time of the accident, at least they were entitled to that opportunity under the stipulation. Finally, even if this evidence is excluded, the outcome is not dependent on it, as there was no shortage of proof from which the jury could reasonably infer that the wheel was lost through fault alone.

■Another evidentiary error wrongfully charged to the trial court involves showing a videotape of John H. Bellamy, Jr., who was unable to attend the trial. The film is just over twenty minutes long, with no audio except background conversation. It shows John Bellamy lying in a hospital bed having his teeth brushed, being shaved by an orderly and finally being placed in a harness to be lifted by a mechanical device from his bed into a wheelchair. Each of these events would have been admissible if verbally described at the trial and the use of this type of evidence is a matter for the trial court’s discretion. Appellants’ arguments that Bellamy’s prior physical condition render this evidence inadmissible go to the weight, I believe, rather than to admissibility. Whatever may be said of the film, it is essentially innocuous and by no stretch of reasoning can it be labelled substantially prejudicial. Certainly its reception does not warrant a reversal.

Next, the majority concludes that an economic expert should not have been allowed to estimate the cost of future hospital services. The witness, Pat Huntley, based his estimates on the testimony of Dr. Roy McGlamery that John Bellamy would require hospitalization forty percent of the time. Appellants submit that appellees failed to lay a proper foundation for this evidence by establishing what part of such hospitalization would be attributable to pre-existing conditions of the appellee. But Grace Bellamy testified that John Bellamy’s general health before the accident was good, but for an occasional cold; that he was hospitalized for one or two weeks each year for an annual checkup, and it is clear from Dr. McGlamery’s testimony that, unlike others with a similar handicap, John Bellamy did not require hospitalization. The trial court heard the testimony in its entirety, whereas we see only abstracted portions of it and it is far from clear that this testimony, which was offered only as an estimate for the jury’s consideration, should not have been admitted. I would not reverse on so slender a ground.

It is not clear whether the majority would reverse on two other points of contention, i.e. the prior driving record of John Bellamy and the exclusion of proffered testimony as to the side effects of medications being taken by Bellamy at the time of the accident. The weakness of the latter proof is that the side effects were admittedly only “possible’ ’ there was no attempt to show that Bellamy experienced any of the ill effects which sometimes accompany these medications. As to the driving history, appellant concedes such proof is not competent to show negligence in a latter collision, but urges that appellees opened the door for this proof. The argument is wholly - without substance - neither the trial judge’s comment on voir dire, nor the remark of a witness for Bellamy that “some handicapped persons are better than average drivers because they are aware of their deficiencies and compensate for it” were of any real consequence, certainly insufficient grounds for retrial. Minor incidents of this sort intersperse almost all trials of any length or complexity and the trial court is a far better judge of the impact of such things.

Giving appellants’ arguments all possible weight, there is no sound basis for concluding that appellants’ case was substantially affected to their prejudice as required by the rule cited above.


author: John I. Purtle, Justice.

text:
    DREYFUS COMPANY, INC. v. TIM WARGO AND SONS, INC.
    84-45
    668 S.W.2d 957
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984
    [Rehearing denied June 25, 1984.]

      Arnold, Hamilton ir Streetman, by: William S. Arnold, for appellant.

      Griffin, Rainwater & Draper, by: Paul S. Rainwater, for appellee.
   John I. Purtle, Justice.

The trial court cancelled the appellant’s claim on account against the appellee because it was found the debt had been tainted by usury. For reversal appellant argues: 1) the court erred in holding that the erroneous claim for storage charges was an attempt to collect usurious interest; 2) it was error to hold that a worksheet reflected an intent to collect illegal interest; and 3) it was error to order appellant to redeliver soybeans which it no longer had in its possession. We hold that the debt is not tainted by usury.

The facts of this case reveal that Dreyfus Company, Inc., (appellant) was in the business of storing and selling grain as well as contracting for production of certified and registered soybean seed. Tim Wargo and Sons, Inc., (appellee) was likewise a close corporation engaged in production of agricultural products including certified soybean seed. The two companies did business with each other for the crop years 1978 through 1981. It was the practice of appellee to obtain seed beans from appellant and pay for them by delivering a certain amount of the crop back to appellant. Also, appellee stored beans in appellant’s warehouse and elevators for the purpose of getting a better price later on. No storage charges were to be made against appellee’s beans.

Appellee never ordered any of its beans sold because Wargo apparently hoped to get a better price. When the account reached about $192,000, appellant sought a conference for the purpose of making arrangements to settle the account. In preparation for the conference appellant had its accountant prepare a chart showing the cost of carrying the account for appellee. The chart demonstrated interest rates of 9%, 10%, 15M% and 18%. A copy of the chart was furnished to appellee. When no agreement was reached appellant filed suit on the debt. The attorney calculated storage charges for appellee’s grain and included the charges in his complaint. Upon discovery that no storage charges were to be made the complaint was amended to delete the charges from the complaint.

During the trial the chart showing the various interest rates was introduced as was the complaint for storage charges. Appellee had never been sent a statement or any kind of demand to pay either storage charges or excessive interest. At the conclusion of the trial the court found that the complaint for storage charges and the chart showing various interest rates tainted the debt with usury thereby rendering it uncollectable. The court also ordered appellant to return to appellee all beans which had been stored with appellant over the four year period they dealt with each other.

Usury is an affirmative defense and the party alleging usury has the burden of proving it. If an instrument is usurious on its face the holder has the burden of proving it is not usurious. However, if the instrument is not usurious on its face the borrower has the burden of proving it is usurious. The intention of the parties and the circumstances surrounding the loan as well as the performance of the parties are factors to be considered in determining whether a transaction is usurious. Bunn Lbr. Co. v. Weyerhaeuser Co., 268 Ark. 445, 598 S.W.2d 54 (1980). We have many times held that a usurious contract cannot be purged of the taint of usury either by remittitur or suing at a nonusurious rate. First Nat’l Mtg. Co. v. Arkmo Lbr. & Supp. Co., 277 Ark. 298, 641 S.W.2d 31 (1982); Bunn v. Weyerhauser, supra; Redbarn Chemicals v. Bradshaw, 254 Ark. 557, 494 S.W.2d 720 (1973). However, the mere fact that suit is filed for an excessive amount does not render the transaction usurious. Svestka v. First Nat’l Bk. in Stuttgart, 269 Ark. 237, 602 S.W.2d 604 (1980).

“The unlawful act of usury will never be imputed to the parties and it will not be inferred when the opposite conclusion can be reasonably and fairly reached. . .If the transaction is not otherwise usurious, filing suit for too much money is not usury.” Pulpwood Suppliers v. Owens, 268 Ark. 324, 597 S.W.2d 65 (1980). The appellee never received any statement in any form whatsoever charging it an illegal rate of interest or a statement charging it with storage of grain. Both Wargo and Dreyfus testified that no storage charges were to be incurred. The attorney mistakenly added storage charges in the original complaint. However he amended the complaint to delete the charges when he discovered his error. Therefore, we think the inclusion of storage charges in the original complaint was mistake. The only other evidence which could show an intent to charge a usurious rate was the worksheet which was used by the appellant in an attempt to get the appellee to settle the account. Dreyfus testified that usurious rates of interest were shown for the purpose of demonstrating to the appellee what it was costing the appellant to carry the account. Wargo admitted his company had never received a usurious statement from the appellant. Under the facts of this case we are of the opinion that the decision of the trial court was clearly erroneous. The appellee failed to discharge its burden of proving usury.

In view of our holding that the transaction was not usurious we deem it unnecessary to discuss the order by the court to return the beans to the appellee.

The case is remanded with directions for the trial court to proceed in a manner not inconsistent with this opinion.

Reversed and remanded.


author: Steele Hays, Justice.

text:
    GROWTH PROPERTIES I et al v. Druie CANNON et al
    84-53
    669 S.W.2d 447
    Supreme Court of Arkansas
    Opinion delivered May 21, 1984

      Eudox Patterson, for appellant.

      McMillan, Turner ir McCorkle, for appellee.
   Steele Hays, Justice.

This case involves the tort of outrage. Appellees are the children of Kell Cannon and the surviving spouse and children of Mildred Fouts Cannon. Appellees filed suit against the appellants, corporations which operate Rest Haven Memorial Gardens, alleging that during 1982 the appellants, notwithstanding their express obligation to supply proper, perpetual care, committed a willful trespass to the graves of Kell Cannon and Mildred Cannon by constructing a road across the gravesites for the movement of heavy equipment, to the severe mental anguish and distress of the appellees. The cause was tried before the circuit judge sitting as a jury, who awarded $2,500 in compensatory damages to some and $1,500 to others, with an additional $5,000 in punitive damages to each of eight appellees, a total judgment of $55,000.

Appellants’ first two points for reversal may be treated as one — that it was error to award either compensatory or punitive damages in the absence of proof of actual damage. They submit that none of the appellees testified to any loss or injury “except some rather vague references to feeling bad about it, or being ‘heartsick’.” But the answer to the argument lies in the fact that the essence of the tort of outrage is the injury to the plaintiff’s emotional well-being because of outrageous treatment by the defendant. If the conduct is sufficiently flagrant to give rise to the tort, then the injury the law seeks to redress is the anguish itself and it need not rest, parasitically, on more demonstrative loss or injury. MBM v. Counce, 268 Ark. 269, 596 S.W.2d 681 (1980); Prosser, Law of Torts, 4th Edition, § 12, p. 59-60; Restatement of Torts, 2d, § 905 (b) p. 456. In two early cases this court pointed the way for what Professors Calvert Magruder and William L. Prosser a decade later defined as an emerging tort based on the intentional infliction of mental suffering. Wilson v. Wilkins, 181 Ark. 137, 25 S.W.2d 428 (1930); Lyons v. Smith, 176 Ark. 728, 3 S.W.2d 982 (1928). We said that physical injury as a prerequisite to a recovery for mental suffering did not apply to wrongs committed deliberately or wantonly and in both cases we upheld awards of punitive damages superimposed on compensatory damages where the insult was injured feelings without corporal injury. See also Geyer v. Western Union Telegraph Co., 192 Ark. 578, 93 S.W.2d 660 (1936). Here, the circuit judge determined that as a result of appellants’ conduct, which he found consistent with the tort of outrage, actual damages of $1,500 by five plaintiffs and $2,500 by three others, were sustained because of mental anguish. Hence, mental anguish itself is the actual damage, and proof of special damage in terms of out-of-pocket expenses of exact pecuniary measurement is not essential to a recovery of compensatory damages.

In MBM v. Counce, supra, this court examined what has come to be called the tort of outrageous conduct, drawing a careful distinction between our earlier cases in which recovery for mental suffering without physical injury had been allowed', as in Erwin v. Milligan, 188 Ark. 658, 67 S.W.2d 592 (1934); Wilson v. Wilkins, supra; and Rogers v. Williard, 144 Ark. 587, 223 S.W. 15 (1920), or denied, as in Geyer v. Western Union Telegraph, 192 Ark. 578, 93 S.W.2d 660 (1936) and Davis v. Richardson, 76 Ark. 348, 89 S.W. 318 (1905) and St. Louis Iron Mt. & So. Ry. Co. v. Bragg, 69 Ark. 402, 64 S.W. 226 (1901). There is no need to repeat the uncertain progress that brought us to the rule announced in MBM v. Counce, as that is done with care in the Counce opinion, where we subscribed to the view of William L. Prosser that the wrong of intentional infliction of mental suffering had been created by case law and was entitled to recognition as a separate tort. All that was required of the judiciary was to abandon the contrivance of finding a constructive or theoretical tort to justify an award of damages for mental anguish. In acknowledging the existence of this “new” tort the court in MBM v. Counce emphasized that the conduct, to be actionable, required that it be so extreme and outrageous as to be intolerable in a civilized society. Later cases recognizing the tort of outrage as such are Givens v. Hixon, 275 Ark. 370, 631 S.W.2d 263 (1982); Dalrymple v. Fields, 276 Ark. 185, 633 S.W.2d 362 (1982), and Orlando v. Alamo, 646 F.2d 1288 (8th Cir. 1981).

There was proof in this case that the appellees, a close-knit family, had acquired four connecting gravesites in appellants’ Rest Haven Memorial Gardens, which they attended and beautified with some regularity after the burial of Kell Cannon in 1969 and Mildred Fouts Cannon in 1974. In the winter or early spring of 1982 and for several months thereafter appellants constructed a lawn crypt near the Cannon graves. The construction interfered with existing drainage and water collected at the gravesites after a rainfall. To alleviate the problem, appellants began the installation of a french drain and in the course of construction heavy vehicles were driven across the graves. There was testimony from witnesses other than the appellees that the Cannon vaults became exposed as a result of the excavation work. Some of the appellees complained, others refrained from coming during the construction. One appellee was told by one of appellants’ employees, evidently with some abruptness, not to come back until the work was finished if she found it upsetting.

Appellants urge that the work was necessary to correct a drainage problem and that no means of access existed which did not require passage over existing graves. But those arguments cannot be sustained, as there was proof the standing water was the result of the lawn crypt, which appellants elected to construct, and, beyond that, proof that the appellants could have avoided damaging the gravesites by simply removing and rebuilding what appears to be a low brick wall. Without attempting to recount the testimony in detail, it is enough to say photographic exhibits show considerable excavation occurred around the graves and heavy vehicles passed back and forth over the gravesites to within a foot or two of the headstones, and that appellees were anguished to the satisfaction of the trial judge by what they regarded as the desecration of their family burial plot. Had there been no other means of accomplishing the drain construction it might be more difficult to justify the result in this case, but the proof showed that the appellants had an alternative open to them as a means of access which did not require movement over gravesites, which they opted against, evidently because it meant removing and rebuilding a brick wall adjacent to the crypt.

Appellants remind us that there can be no recovery of punitive damages without actual damages. Williams v. Carr, 263 Ark. 326, 565 S.W.2d 400 (1978); Williams v. Walker, 256 Ark. 421, 508 S.W.2d 52 (1974). But it is only where no compensatory or actual damages are awarded that the rule pertains — it has no application where the jury or trial judge awards compensatory damages, as is true of the case before us.

Next, appellants insist that evidence of malice, willfulness or wantonness is lacking and therefore it was error to award punitive damages. But the argument tends to confuse the intent to cause suffering with the intent to do an act from which suffering can be expected to result. The former may be maliciously intended while the latter may be merely the result of a conscious indifference to the consequences. But even the latter, if sufficiently wanton, will sustain the award. Southern Farm Bureau Casualty Ins. Co. v. Daniel, 246 Ark. 849, 440 S.W.2d 582 (1969); Vogler v. O’Neal, 226 Ark. 1007, 295 S.W.2d 629 (1956); Miller v. Blanton, 213 Ark. 246, 210 S.W.2d 293 (1948); Texarkana Gas & Electric Co. v. Orr, 59 Ark. 215 (1894). We concede that no inference of willful malice may be drawn from the evidence in this case, but we do not agree that punitive damages are not recoverable as a matter of law on the evidence presented. Appellees proved the appellants not only breached a duty to provide perpetual care to appellees’ family members but engaged in a prolonged and callous desecration of the graves of their kinsmen. Opinions can differ widely, of course, as to where the line falls between conduct that merely offends and that which is so outrageous as to be intolerable in a civilized society. Here, the trial court sitting as a j ury determined that appellants’ conduct was intolerable and we cannot say the supporting evidence was wholly without substance in view of the deep human feelings involved. The grounds where close family members — wives, parents, children — lie buried have a special place in the minds and sentiments of men and women of every race and culture. They are places to be preserved from the erosions of time and nature, if possible, and certainly from the wanton desecration of those who have entered into a covenant to keep them perpetually protected. Matthews v. Forrest, 235 N.C. 281, 69 S.E.2d 553 (1952); Bessemer Land and Improvement Co. v. Jenkins, 18 So. 565 (Ala. 1895); Mental Suffering for Trespass to Burial Lot, 6 Vand. L. Rev. 799 at p. 801. The argument that it was unavoidable was obviously rejected by the trier of fact.

The final argument, that appellants acted in good faith based on the belief that they had a contractual right and obligation under the by-laws to proceed as they did was rejected by the trial court and we cannot say the finding is inconsistent with the evidence. Quite aside from the fact the by-laws were adopted well after the Cannons were buried, the argument ignores the fact that having created the problem, appellants chose to remedy it by using the Cannon gravesites as a thoroughfare for construction vehicles, when an alternative route, albeit less convenient, was open to them. The evidence is not so lacking in substanpe that we can conclude that the findings of the trial court are unsupported. Shuffield v. Hunter, 268 Ark. 1003, 597 S.W.2d 852 (1980); Charlie Stuart Oldsmobile, Inc. v. Smith, 171 Ind. App. 315, 357 N.E.2d 247 (Ind., In Banc 1976).

We agree with appellants in one respect — damages for the mental suffering that results from the tort of outrage cannot be justified on behalf of one who is a party in name only. Don Cannon did not testify nor appear at the trial and it was error to award damages for emotional distress in the absence of specific proof. The overtones of conjecture which attach to claims of mental suffering unaccompanied by physical injury have led to the view that mental anguish may not be inferred on behalf of someone who fails to testify concerning his own experience. See Dale v. Sutton, 273 Ark. 396, 620 S.W.2d 293 (1981) and Peugh v. Oliger, Adm’x, 233 Ark. 281, 345 S.W.2d 610 (1961). The award of damages to Don Cannon is disallowed and the judgment is modified accordingly.

Affirmed as modified.

      The judgment makes no mention of plaintiff Minnie Cannon.

      Magruder, Mental and Emotional Disturbance in the Law of Torts, 49 Harvard Law Review 1033.

      Prosser, Intentional Infliction of Mental Suffering: A New Tort, 37 Michigan Law Review 814.