Homes v. Jones

Carleton Harris, Chief Justice, concurring. On petition for rehearing, an entirely new argument is presented by appellant. The argument is relevant to the issue in the litigation, but I do not think that it can properly be considered. For the first time, it is urged that Act 459 of 1965 was passed as a matter of enabling the Insurance Commissioner to adopt the N.A.I.C. regulations. Appellant, in its rehearing brief, says: “Act 459 represents the legislation necessary to enable the Insurance Commissioner to adopt the N.A.I.C. regulations. The Commissioner is directed by sub-paragraph 5 of the Act to conform to the regulations adopted by the N.A.I.C. insofar as possible. * * * “In amending Section 66-4220 (Supp. 1963) to enable the Insurance 'Commissioner to adopt N.A.I.C. Regulations, it was necessary to eliminate any provisions of the section which appeared inconsistent in any respect with the N.A.I.C. regulations. The provision of the former section authorizing an irrevocable proxy if coupled with an interest, appeared to be inconsistent with the provision of the Regulations, which provides that “No proxy shall confer authority ... to vote at any meeting other than the next annual meeting (or any adjournment thereof)” [N.A.I.C. Regulations, Section 6 (4)] and the former provision was therefore deleted from the Act. “The deletion of the provision relating to a proxy coupled with an interest does not mean that the General Assembly intended to invalidate all arrangements whereby the voting right is separated from a share of stock. ’ ’ This same argument is used in two amicus curiae briefs filed with the court on rehearing. We have many times said that we will not consider matters that are not argued in the brief, nor will we consider, on rehearing, contentions not originally advanced. In Bost v. Masters, 235 Ark. 399A, in a supplemental opinion on rehearing, this court said: “Appellee’s petition is without merit for three reasons. In the first place, appellee did not argue in her original brief that service was obtained upon a trustee of the insurance fund, though appellants devoted considerable space in their brief to the argument that service on the fund was not obtained. Appellee’s sole argument, relating to service, was to the effect that this action was brought as a class action. * * “In other words, appellee never made the contention, now advanced, in her original brief. We have said on numerous occasions that we do not consider matters, in civil actions, which are not argued in the brief, and any point not argued is deemed waived. [Citing cases.] ” As stated, the present position of appellant, as reflected in the quote from appellant’s brief on petition for rehearing, and pertinent, because it deals with the legislative intent, was not mentioned in the original brief, nor was it mentioned in appellant’s reply brief, though Act 459 of 1965 (amending the Insurance Code), construed together with the General Corporation Statute of this state, was one of the principájfpoints relied upon by appellee for affirmance of the trial court judgment. I reiterate that I do not feel we ¿an properly, under our rules, and under our prior opinions, consider the argument advanced in the petition for rehearing.