*1 ties, ne- in- Defenbach of a and when the Commission desires because Commissioner referring prior cessity dependent expert opinion testimony, had to be the then in order there injury bring experts cervical to be of such number as the symptom exacerbate. may Commission determine. prepared findings the recounted
opinions regard doctors with the accident, history,
claimant’s both to the as sicknesses, prior psycho- resultant and, logical psychiatric history, not- and/or
ing par- also that “The Commissioner finds
ticularly persuasive opinion Ken- of Dr. finding
nedy,” the made that “the Czaplicki, Russell and Rose CZAPLICKI opinions of Dr. Dr. Hansen and Powell wife, individually and as husband and persuasive opinion be than the of Dr. more Czaplicki, parents of Garrett a natural respect with to the cause of Whitenack minor, Plaintiffs-Appellants, deceased relationship of complaint claimant’s and the complaint her to the industrial accident.” Finding acknowledged Finding XIV. XIII GOODING JOINT SCHOOL DISTRICT (was) that opinion that “Dr. Whitenack’s Conley, NO. Richard and individu- 231; by the condition was caused claimant’s al, Schmidt, individually E. Gilbert ... that the claimant industrial accident Service, Gooding County Ambulance encountered cultural differences had X, inclusive, through per- and Does Japan coming to the United States from unknown, present sons or entities at ... created certain emotional Defendants-Respondents. adjustment may which also be a issues had com- factor ... that these factors been No. 17140. injury physical produce
bined with Supreme Court Idaho. continuing problems.” the claimant’s May 1989. outset, it is indeed As stated at case, complex quality the number and but July 14, Rehearing 1989. Denied per- experts made the outcome defense haps Only Dr. fa- inevitable. Whitenack Yet, set in this bizarre
vored the claimant. circumstances, at all it does not seem may improbable have been correct separate To the two his deductions. physical injuries, one com- almost identical other, ing cou- directly on the heels of the pled occurring to a so afflicted woman difficult, im-
emotionally, if not is at best possible. if the feel more сomfortable
One would brought extremely well-qualified experts non-partisan the arena had entered into by the participants Commis- summonsed case. highly it in this unusual sion to aid among the trial attor- There is sentiment neys inherently unfair for it is pan- to use employers and sureties defense An compensation experts in cases. els of system would restrict improvement in the par- experts available number *2 Keane, Koontz, &
Evans, Boyd, Simko Boise, plaintiffs-appellants. Ripley, argued. Rex Blackburn Robertson, Nelson, Rosholt, Tolman & Falls, Tucker, defendants-respon- Twin argued. George R. dents. Bevan HUNTLEY, Justice.
Incident
I. tragic death of a
This case involves the Czaplicki, at six-year-old boy, Garrett school, alleged needless de- of an because provision lay Czaplickis’ appeal the to him. The care application of the “discre- district court’s exception to various al- tionary function” defendants, legedly acts Principal school particularly, the decision of Conley ignore requests of Richard for an mother and school teacher Garrett’s having and his called off ambulance summoned, being ambulance that was knowledge of Garrett’s condition. Elemen- enrolled Gibbons Garrett was Gooding, Idaho as a kinder- tary School died, garten day Gar- student. On classroom. At rett stumbled and fell p.m. January approximately on kindergarten up lined class and walked go playground to the school across building. According to library in the main teacher, Schoettger, Becky Garrett’s Klingler, ap- school Marie Garrett librarian feeling they did not peared to fine and be anything or abnormal about notice unusual during his prior his to and visit behavior p.m., 2:12 library. Sometime after Czaplicki Conley Mr. present as a teach- Rose testified that Czaplicki Rose who put gestured arm her as if up his stayed in the class- er’s and who had aide down, get say don’t excited.” As he “Calm materials, peo- heard prepare room closer, Conley put told Rose to got Mr. *3 running. girls ple She heard some chant- lowеred Garrett’s head Garrett down. She ing, boys, boys.” we the “we beat the beat ground Mr. and to the and Con- shoulders she fall the and then heard someone looking at him. ley stood over Garrett it classroom. Rose turned and saw was said, way he’s breath- “Look at the Rose had Garrett rose to his Garrett who fallen. Rose, ing,” according Conley to Mr. and to him and knees and Rose went asked just stood there. began does it hurt?” to “Where Garrett Conley tapped Mr. testified that he Gar- gesture right arm then col- with his and rett number times and called out his a lapsed into in unconsciousness Rose’s response. name, no to which there was placed under Rose her arms Gar- arms. Conley Mr. was observed that Garrett brought to and him out the rett’s arms said, picked breathing, up he and Garrett porch kindergarten. “Well, get someplace him where it is let’s teacher, Rose shouted to Garrett’s Mrs. Conley Rose Mr. that she warm.” told Schoettger, get to an ambulance and that things gather the would their from kinder- Schoettger Mrs. Garrett was unconscious. garten Mr. turned Conley room and and requested princi- ran the office and the to main started to walk back toward the build- Bolton, pal’s secretary, to call an Susan Rose, ing. According Conley to Mr. then ambulance, advising her one of her that walked back to the school office with Gar- had fallen and was “out.” Mrs. students he pace rett the same had walked out to at up phone place the call picked Bolton the to Conley Mr. took into the them. Garrett placed her she and had it to ear when was supine position placed and him a office Conley, principal. stopped by Richard the on a bench. given by Conley Mr. an oral statement log dispatcher indicates The sheriff’s Rabe, Agent Ric Farmers Insurance finally request that Bolton called Susan “ Conley explained, March Mr. Tragically, p.m. an 2:20 that ambulance at Becky told need to realize that Susan [You] call come one to two minutes too late would secretary our to call the ambulance and Czaplicki. entry save Garrett According Conley, told not to.” to Mr. her reads as follows: call instructing after Mrs. Bolton not to. com- School, Gooding Susan Bolton of Grade ambulance, plete call he her for an then boy a little 934-4941 send an ambulance office to where Garrett walked out hit head. is unconscious. fell and his He was, distance he estimated to be 200 to a a call to the placed Susan Bolton second 240 feet. advising dispatcher p.m., at 2:21 sheriff’s Czaplicki waiting still on Rose was out in the that child was located school kindergarten holding porch Gar- office. rett, when Mr. unconscious whо was still Klingler, and a Marie the school librarian playground. Conley across walked Technician Emergency trained Medical you get over here.” yelled, Rose “Would (EMT), office. was summoned She Bolton, to a class- had walked Susan who head, repositioned covered him Garrett’s hall, facing onto out room across the blanket, legs. and elevated his She with a holding up playground, Czaplicki Mrs. saw observed that Garrett testified she “partially in a seated” Garrett who was breathing shallowly, every was position. His had rolled forward on head gasp of air. few he would take a seconds appeared unconscious. his and he breathing chest Mrs. Bоlton described Garrett’s opened a in the sounding “baby Mrs. had window like a Bolton with Czaplicki gasps. recalls Mrs. and in Mrs. phlegm” irregular classroom she — Conley “hurry Klingler Mr. that Garrett never com- yelling for testified [Gar- —he breathing stopped she was really pletely while hurt.” was rett] procedures for the state Conley explained cal treatment present him. Mr. with Idaho, testified: agent in to the his oral statement insurance March 1986 that: was My opinion is that the child [Garrett] prob- healthy underlying child a breathing, He it was not [Garrett] lems, airway prob- developed breathing respiration, normal but he was airway consequence lem. As laying was in the office down when he enоugh oxy- getting problem, he was breaths, here, taking deep but he was blood, from gen his that the interval breaths, taking deep sporadic. He was started to the problem the time the first exhale, pause be- then there would be too initiated was time treatment was *4 again. fore And then he would breathe initi- long, and that once treatment was [exhaling [inhaling he would sound] treatment, ated, appropriate it was take another. sound] appropriate treatment and had been— p.m., At 2:27 Ambulance No. 52 radioed- time, proper given at the treatment been grade in that the school. Mr. it was at the child would alive now. be Conley explained in his oral statement Significantly, Geiger testified Dr. further agent the insurance that: opinion in “look- his medical and The last breath that I was aware that he facts, ing at the EMT assistance been [had they took was [Garrett] [the EMTs] provided] like- even a minute sooner most pulled up outside. When the ambulance ly life.” would have saved [it] [Garrett’s] deep was here he took another breath Ruttenberg, Dr. who is on staff with deep and that’s the last breath that I Primary Children’s Medical Center Salt taking remember him and I was beside Utah, City, faculty is Lake and on constantly him almost since he was in the school, University of Utah medical tes- office, I him and carried inside. opin- deposition tified in that in his medical immediately per- EMT Gilbert Schmidt “definitely ion Garrett was resuscitatable” formed an assessment of Garrett’s condi- during the interval between his fall and the complete tion and noted a absence of heart- Dr. Rut- actual arrival of the ambulance. breathing beat and The EMTs Garrett. tenberg observed: began (CPR) cardiopulmonary resuscitation collapsed, Apparently, as soon as he his transported Gooding and Garrett was help there and called for and mother was County Hospital, Memorial where he was teacher, else, I there was someone a pronounced p.m. later dead at 3:55 after think, get help who ran back to efforts resuscitative failed. EMT apparently get or ambulance performed autopsy The on Garrett Cza- something. or plicki significant gas- revealed amounts of through request put That wasn’t lungs. tric contents his Dr. Jane Ben- authorities, know, proper you and as I nett-Munro, physician performed who it, it a ten understand was estimated Smith, autopsy; Douglas Dr. the emer- time he fell minute interval between the Garrett; physician gency room who treated unconscious, coma, going into and was Geig- plaintiff’s experts, Dr. Robert R. and whatever, certainly or but not conscious er, physician certified in the field a board people got gave until uie EMT there medicine, and Dr. Herbert D. him mouth-to-mouth resuscitation. Ruttenberg, pediatric a certified car- board any think time before that could diologist, deposition testified in all helped. have We call that resusci- been respiratory fail- Garrett’s death was due to help just tation. I mean assisted with physicians All of these testified that ure. breathing, yeah, nothing his but provision appropriate, timely care done. EM'T(s) probabili- in all trained would have He, just apparently, was left alone on his ty life. saved Garrett’s good position is not the back—which put him on deposition Geiger, put patient Dr. re- in. You have to
In
who was
developing emergency medi-
their
so that therе can be drain-
sponsible for
stomach
back,
performance
or
of a
your
you’re
or the execution
ing
they
if
On
vomit.
function,
get
your lungs.
statutory
regulatory
or
wheth-
guaranteed to
it
regulation
or
be
er or not the statute
death to
plaintiffs attribute Garrett’s
valid,
per-
or
upon the exercise
or based
defendants,
alleged that the
and have
exercise or
or the failure to
formance
Gooding
and Richard
Joint
District
School
duty
or
discretionary function
perform a
negligent in the
Conley,
principal,
were
entity or
part
governmental
of a
on the
following particulars:
thereof,
or not the
employee
whether
1)
provide рaramed-
to secure and
failure
discretion be abused.
ics,
emergency assist-
first aid or other
fashion;
timely
in a
ance
summary
ruling
on a motion
immunity de
2)
provide compe-
upon an
judgment1
failure to secure and
based
personnel;
Act
Idaho Tort Claims
tent or trained
fense under the
(ITCA),
determine
judge
trial
should first
3)
provide necessary
secure or
failure to
sup
plaintiffs’ allegations whether the
supplies,
or
material
reasonable
generally state a cause of
porting record
equipment;
private person
entity
action for which “a
4)
provide instruction and/or
failure to
*5
damages
money
for
under
would be liable
for
supervision
рersons responsible
to
Idaho.”
v.
the laws of the state of
Walker
assistance;
991, 995, 739
County, 112 Idaho
Shoshone
establish,
5)
implement or ad-
failure to
290,
(1987).
must then
P.2d
294
The court
practices or
adequate policies,
minister
exception
liability
to
determine whether an
regarding provision of
procedures
alleged
miscon
under the ITCA shields
personnel;
properly
supervised
trained
liability. In
of the
duct from
consideration
6)
to hire
failure of the school district
inquiry
private
whether a
indi
initial
as to
procedures
in
for
personnel
trained
entity could be held liable under
vidual or
securing medical assist-
providing or
complaint,
es
alleged in the
we
the faсts
ance; and,
under the
sentially ask “is there such a tort
7)
to train
failure of the school district
v. Shoshone
laws of Idaho?” Walker
personnel
recognize
to
school district
991, 995,
A
and its
scope
negligent
acting
making,
the course and
nor does it shield the
while
within
policy
malice
employment and without
of a statute or a
implementation
of their
—ex
Czaplickis
alleged by
intent shall not be liable
actly
or criminal
the situation
by the
any
complaint
claim which:
and established
in their
Tort
in this case. The Idaho
evidence
any
out of
act or omission
1. Arises
governmental entity
entity
Act makes
governmental
Claims
employee
damages arising out of its own
care,
in reliance
liable
еxercising ordinary
non-moving party.”
summary judgment
proper
the record in favor
Any
is
1.
motion for
469-470,
466,
any
Durtschi,
only
genuine issue as to
716
there is no
v.
110 Idaho
when
Doe
fact,
moving party
1238,
(1986).
is entitled
material
sum-
A motion for
P.2d
1241-42
56(c).
judgment
I.R.C.P.
as a matter of law.
mary judgment
if the evidence
must be denied
judgment
applicable
summary
re-
Standards
quire
conflicting
drawn
inferences can be
is such that
therefrom,
"liberally
facts in the
the court to
construe
might
people
reach
and if reasonable
non-moving par-
existing
record in favor of
470,
331
Insurance,”
procedure
stated the
which
or omissions.
operational acts
471,
requested to follow in
Durtschi,
466,
716
teachers were
v.
110 Idaho
Doe
student.
liberally con
accident to a
case of an
1238. The Act is to be
P.2d
accomplishing
strued
with a view toward
assuming
the school dis
Even
attaining sub
purposes and
its aims and
allow
decision to
“planning”
trict made a
Bloom, 111
justice. Sterling v.
stantial
calling
involvement
principal’s
for the
(1986).
211,
The discre
P.2d 755
Idaho
723
ambulance,
immunity exists for
for an
liability ap
exemption to
tionary function
prin
that the
to assure
the district’s failure
entailing
plies only
government
decisions
determine
trained to
properly
is
cipal
formation,
policy
and “does not
planning or
needed or for
is
an аmbulance
whether
any
ele
functions
involve
include
uninformed, unilateral
Conley’s
principal
choice, judgment,
ability
ment of
request
calling
off an ambulance
action
decisions;
responsible
otherwise ev
make
mother and his teach
ed
both Garrett’s
ery
excep
function would fall within
statutory duty
Principal Conley had a
er.
original.) Sterling,
(Emphasis
tion.”
foresee
reasonably in the face
to act
227,
John
(citing
111 Idaho at
Czaplicki, as
risk of harm to Garrett
able
State,
782,
Cal.Rptr.
son v.
69 Cal.2d
of all
part
duty
protect
the health
of his
(1968);
Downs
240, 245, 447 P.2d
It
responsible.
students for which
States,
(6th
v.
United
522 F.2d
respect
to how
Conley’s
is
decision with
State,
Cir.1975);
642 P.2d
Wainscott
Czaplicki should be treated that
Garrett
(Alaska 1982); and,
Chandler
1355, 1356
light of
Reviewing that issue in
at issue.
Boise,
Co.,
Supply
City
Inc. v.
unequivocal
precedent
the wealth of Idaho
480, 482-83,
1323, 1325-26
Idaho
*6
ly
Conley’s acts and omis
establishes that
(1983)).
operational and therefore sub
sions were
City
City,
Ransom v.
Garden
of
performed
liability
they
if
ject to
were
202,
(1987),
Idaho
The contains at emotional distress. fliction of to the allegations negligence relative Hatfield Czaplickis’ com- assistance, 944. The 606 P.2d timely equipment, provision of actions have plaint alleges that defendants’ allegations directed toward training and emotion proximately caused “severe librarian, Klin- Marie activities pain injury physical result techni- trained gler,t Czaplicki,” and have plaintiff, Rose occasionally provided first aid ser- cian who emotion and commensurate “caused severe upon called to do so. Since the vices when Cza- injury plaintiff Russell physical applicabili- only addressed district court Czaplickis describe plicki.” The various 6-904(1) for the ty of I.C. as a basis § that have manifested injuries emotional and since there is not summary judgment, physical symptoms such themselves developed on the vari- yet a factual record headaches, suicidal occasional severe allegations, ous this Court can- above-listed libido, disorders, thoughts, sleep reduced upon plaintiffs are or are not rule whether pains appetite. and loss of fatigue, stomach claims, those not entitled to recover under questions they likewise involve because Bank Trust In Rasmuson v. Walker & fact. 95, 100, Co., 102 Idaho (1981), Court stated: this III. Emotional Distress appeals' district plaintiff also granted the defen seeking The district court of her counts court’s dismissal basis of the discretion dant’s motion on the in- recovery negligent and intentional addressing exception, without ary function fliction of emotional distress caused appropriateness of the cause of action negligent, bad faith and reckless trust infliction of emotional dis opin- management. This Court’s recent requires 1-205 this tress. Idaho Code ion in v. Max Rouse & Sons § Hatfield court, remanding further Northwest, a case for when 100 Idaho proceedings, “pass upon and determine (1980), requirements to suc- specifies the case questions all the of law involved the cessfully bring these torts. Inasmuch as appeal.” Nielsen & presented allegations physical such *7 were no there County v. and Twin Falls in at Co. Cassia involved the case manifestations Dist., 317, bar, A 103 Idaho negligent Joint Class School infliction of the tort of (Ct.App.1982). the Sinсe distress does not lie. emotional remanding Czaplickis’ the case to Court is existing in Construing the facts the court, guidance provides it now the district Czaplickis’ liberally most in the fa- record by holding Czaplickis that the on this issue vor, required of this Court in review- as is action adequately plead a cause of have summary judgment ing the district court’s negligent infliction of Idaho law for under (see opinion), supra, n. this re- decision 1, distress. emotional genuine at minimum that a issue of veals respect fact exists with material in Idaho beyond dispute It is the inflic- Czaplickis’ claims for negligent infliction no cause of action for of emotional distress. tion there emotional distress will arise where of plaintiff. physical injury to the Hath is no IV. Venue 515, Krumery, 110 Idaho away v. Czaplickis The invite this Court to (1986); v. Max Rouse & Sons 1287 Hatfield 840, merits of their motion for
Northwest,
P.2d 944 rule
the
100 Idaho
606
change
yet
That motion has not
(1980).
of venue.
“physical injury” requirement
The
passed upon by the trial court be
been
designed
provide
guarantee
of
is
granting
the motion for sum
cause the
genuineness
the claim in the face of
the
that issue moot.
mary judgment rendered
danger
of mental harm will
the
that claims
not a motion for
The matter of whether or
imagined. Hatfield, 100 Ida
falsified or
be
granted
change of venue should be
is a
849,
Physical manifes
at
333 “duty” under the instant of such a court: breach the of the trial I.R.C.P. discretion death of the the circumstances. While Anschustigui, 37 Ida 40(e)(1); Lessman v. showing tragic, there is no is indeed child (1923); ho Gibbert v. P. Wash court or this the trial in the record before Co., 637, 115 ington Power Idaho Water cause, if at all it or how Court as (1911). Accordingly, P. 924 that issue In the absence prevented. could have been yet ripe appellate review. and no “duty” can be no “tort” of a there No appellant. attorney fees Costs Tort Claims imposition liability under the awarded. Act. or inac- assuming that the action Even JOHNSON, JJ., BISTLINE and personnel in the in- by tion involved concur. case constituted tortious stant somehow BAKES, C.J., part concurs 6-904(1) conduct, pro- nevertheless I.C. § part. dissents in governmental entity its em- “A vides: SHEPARD, Justice, dissenting. ployees acting course and while within the scope employment of their without malice adjective recitation of facts in the for any or criminal intent shall not be liable majority opinion leaves little as to doubt 1) any act claim which: arises out of my In result it will obtain. view employee governmen- omission of an of the An operative sole facts are follows. care, entity exercising ordinary tal ...” collapsed healthy child otherwise while (Emphasis added.) Here the facts demon- emergency school. A trained medical tech- ordinary part strate no lack of care on the employed nician as a school librar- who was principal delaying school a call of the immediately ian was called to scene and an ambulance while the child was under the helped attend to the child. of the Because care of the medical technician. principal, instructions of the there was facts, my view when viewed even delay approximately eight minutes be- standpoint from the most favorable fore an was called. The child ambulance plaintiffs, question demonstrate no triable pronounced hospital. was dead at the An ordinаry of lack of care. autopsy performed, but no cause of except death a probable was determined I am aware of the decision this Court Bloom, passage. Although obstruction in the air 111 Idaho Sterling expert by way (1986) deposi- witnesses testified P.2d 755 stated that the “dis- cretionary tion that at the hospital earlier arrival contained in the function” Tort might saving permitted have life Act of the Claims “does not include functions child, choice, they did not know any judg- that would which involved element of *8 done, have they responsible been nor did ability fault the ment or to make deci- sions; emergency actions of the every medical techni- otherwise function would fall personnel. participate cian exception.” and the ambulance within the I did not Sterling in the and herein decision indicate In my only presented issue view the disagreement language. my that with To whether the trial court’s issuance of sum- argue, Sterling, that the does exercise mary judgment junc- correct. At was any of discretion does not involve element facts, any ture conflict in the or inferences choice,judgment making, or decision is a therefrom, arising must be construed most contradiction of terms. favorably plaintiffs. Applying that toward standard, negligence my ques- allegations that the As to the only it is view other presented plаintiffs’ complaint, in tion herein is whether there ex- asserted such as part supplies duty equip- isted on the of the school failure to have medical and a available, adequate principal calling provide ment failure to to have ordered of an expeditious training per- medical to school emergency ambulance in a more fashion. sonnel, adequate poli- statutory I or law establish know of no common failure to cies, “duty” imposed practices procedures regarding in such a situation. or Hence, my training personnel emergency has in in view there first been
334
first
medical
emergency
in
aid, inadequate training
рrincipal
ing
principal
in
of the
aid,
the school
decisions of
securing
policy
are all
procedures
providing
for
and
tied
board,
part are
for the most
assistance,
negligently train-
medical
and
budgetary con-
indirectly to the
directly or
aid,
ing
principal
in
first
are
oper-
school districts
straints under which
policy
all
decisions of the school board
resulting
policy decisions
Those are
ate.
directly
indirectly
which are tied
or
placed
statutory
from
limitations
budgetary
school
constraints under which
carry out
to raise funds to
school districts
Hence,
operate
districts
under state law.
in
Accordingly,
their educational function.
my
view all those issues fall within the
view,
the school
my
on those other issues
constraints of the Tort Claims Act and
liability under the
district is immune from
immunity
demonstrate the
of the school
Tort Claims.Act.
employees.
district and its
Regarding
majority opin
III
Part
of the
portion
I further dissent from that
ion, dealing
emotional
with the issue of
opinion
plain
majority
which deals with
distress,
prior
required that
our
cases have
negligent
tiffs’ claim for
infliction of emo
any
damages
negligent inflic
claim for
inappropriate
tional distress.
consider it
accompanied
tion of emotional distress be
majority
for the
of this Court to undertake
objective physical
manifestations be
change in
majоr
such a
the law of this
any
cognizable. Subjec
such
fore
claim is
jurisdiction
the scant record
based on
be
pain, injury
suffering are
tive claims of
or
it,
any
by
fore
and the absence of
decision
objective
not sufficient. There must be
regard.
the trial court in this
See Gill v.
physical
Complaints
manifestations.
such
Brown,
1137,
(Ct.
Accordingly, also' dissent majority opinion. Cottrell, Sandpoint, for de- W.
Jonathan fendant-appellant. Jones, Gen., Atty. Myrna A.I. Jim Boise, Gen., Stahman, Atty. Deputy plaintiff-respondent. Idaho, Plaintiff-Respondent,
STATE of PER CURIAM. HARPER, Defendant-Appellаnt. David Upon his This is a sentence review case. arson, guilty first-degree plea of David No. 17738. Harper years ten received a sentence of Appeals
Court of of Idaho. three-year period minimum of con- 18-801; finement. I.C. 19-2513. Har- §§ June 1989. per contends his sentence is excessive. We disagree, impos- judgment and affirm the ing the sentence. by
A house rented Priest River a Mr. by completely destroyed Sallee was fire. setting gave Harper admitted the fire. He following explanation, as recounted investigator: presentence During interview, Harper our Mr. stat- home; just left his ed that he had own intoxicated; and he went to that he was He a friend’s house. said he drank house, more at the friend’s and then beer he went to the Sallee residence. He stat- he ed there was one at home and that just decided to start the house on fire. Harper Mr. stated that he did not know why, just other than he did it for some- that, thing Harper to do. Mr. stated at time, he did not think of the conse- it quences of his actions. He stated that bothered him afterwards because he trouble; at knew that he would be but time, just did not think. Mr. also, Harper stated that at the time he fire, thought started the he had no in this case. the victims involved years Harper twenty-two old at the consisting time. He had a criminal record *10 burglary, auto theft and convictions He had time in the traffic offenses. served Texas Correctional Institution and was on parole from Texas when he committed the arson this case.