text:
    Nichols v. Freeman.
    5-3155
    374 S. W. 2d 353
    Opinion delivered January 20, 1964.

      V. D. Willis and' J. Loyd Shouse, for appellant.

      Shaw, Jones d? Shaw, Eugene Moore, for appellee.
   Sam Robinson, Associate Justice.

This is a personal injury case in which the trial court directed a verdict for the defendant. Later, the appellant, Nichols, filed a motion for a new trial and, among other assignments of error, alleged newly discovered evidence. The trial court overruled the motion for new trial. Appellant then filed a notice of appeal stating that he appealed from the order overruling the motion for new trial. After appellant lodged his appeal in this court the appellee filed a motion to dismiss the appeal on the grounds that appellant had not appealed from the original judgment, and that the order overruling the motion for a new trial on the ground of newly discovered evidence was not an appealable order.

In response to the motion to dismiss, the appellant stated, in effect, that he was only appealing from the order overruling the motion for a new trial. This is an appealable order. Moore v. Henderson, 74 Ark. 181, 85 S. W. 237. We, therefore, overruled the motion to dismiss, but limited the issue to be considered to the sole question of whether the trial court was in error in overruling the motion for new trial which alleged newly discovered evidence. The only issue now before the court is the action of the trial court in overruling the motion for new trial which alleged newly discovered evidence.

At the time appellant was injured he and appellee were on a fishing trip. They were riding in appellee’s pickup truck; the appellee was driving and appellant was sitting next to the right-hand door, As they rounded a curve the door came open, appellant fell out and was injured. In his complaint appellant alleged that appellee was negligent in the following manner: “ (a) Defendant carelessly and negligently permitted the screws in the striker plate to become loose and drop down causing the right-hand door to swing open, throwing this plaintiff out onto the highway, (b) In carelessly and negligently failing to inform this plaintiff of said defect.”

During the trial of the case it developed that the door did come open, but appellee denied that he knew the striker plate was loose. As an exhibit to his motion for a new trial, appellant filed an affidavit made subsequent to the trial in which appellee stated, in effect, that he was confused in the trial court when he testified that he did not know the striker plate was loose; that he was referring to the truck owned at the time of the trial; that he had traded the truck from which appellant had fallen; that, in fact, he did know that the striker plate was loose on the truck in which he and appellant were riding when the door came open and appellant fell out; that he had previously had trouble with the striker plate coming loose on that truck, and on one occasion the door liad come open and his son had fallen out, and on another occasion due to the same trouble, his wife had fallen from the truck. Also subsequent to the trial, appellee’s wife made an affidavit to the same effect in support of the motion. After fully considering the motion, the trial court overruled it. In a written opinion the trial court said: “Now on this 2nd day of August, 1963, is submitted to the Court the Motion of the Plaintiff for a new trial of this cause, upon the ground of alleged newly discovered evidence. Said motion for new trial is supported by the Affidavits of the defendant, Earnest Freeman and his wife, Mrs. Ethel Freeman, in which they state in substance that the defendant had had some prior trouble with the latch on the truck involved in the accident, and had had two previous accidents as a result of a defective latch on the door. The defendant further states in his affidavit that he was mistaken in the identity of the truck being referred to in his testimony at the trial; that he thought the attorney was referring to the truck he now has, instead of the one involved in the accident. The defendant was called by the Plaintiff as his witness at the trial, and according to the Court Reporter’s notes the plaintiff’s attorney asked the defendant the following question: “Had you had any difficulty with the doors on this truck in which you and he were riding that morning?” and the defendant’s answer was ‘I don’t recall on this one, but I have had a lot of striker plate trouble. I have bought several sets and put them on trucks ’. On Cross Examination, the defendant witness was asked by defense attorney the following questions, and responded as follows: ‘ Q. Mr. Freeman, this door had never come open before, had it? A. Well, I don’t recall on that truck, that it had ever come open before. Q. Well, had the door ever come open before this? A. No sir, I don’t recall it had. Q. If it had, you would have recalled it, would you, Mr. Freeman? A. Well, possibly, I would.’ It is difficult to understand how the defendant could have been mistaken as to the identity of the truck referred to.

“Section 27-1901 of the Ark. Stats, provides that a new trial may be granted upon newly discovered evidence material for tlie party applying, which ho could not, with reasonable diligence, have discovered and produced at the trial. The primary issue before the Court is whether or not the evidence the plaintiff seeks to offer could have with reasonable diligence been produced at the trial. Our Supreme Court has held in innumerable cases that a new trial will not be granted for newly discovered evidence, unless the applicant has shown reasonable diligence. In this case, the proposed newly discovered evidence could have been procured through discovery depositions, or interrogatories, or even by further interrogatories propounded to the defendant in the trial of the case. The testimony of the witness seems to be clear enough that the witness understood that reference was being made to the truck involved in the accident, but if there was any doubt on that question, the facts could have been elicited by further questioning.

‘It is the opinion of the Court that plaintiff has failed to measure up to the requirements of the law to be entitled to a new trial on the ground of newly discovered evidence, and that the Motion should be and the same is hereby overruled . . . .”

TVe have said many times that the granting of a now trial on the grounds of newly discovered evidence is largely in the discretion of the trial court. Here, we cannot say that the court abused its discretion. Missouri Pacific Transportation Co. v. Simon, 200 Ark. 430, 140 S. W. 2d 129; Missouri Pacific Transportation Co. v. George, 200 Ark. 560, 140 S. W. 2d 680; Ark. Amusement Corp. v. Ward, 204 Ark. 130, 161 S. W. 2d 178; Beatty v. Pilcher, 218 Ark. 152, 235 S. W. 2d 40.

Affirmed.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Andrews v. Victor Metal Products.
    5-3137
    374 S. W. 2d 816
    Opinion delivered January 20, 1964.
    [Rehearing denied Feb. 24, 1964.]

      Frank Lady and II. M. Ellis, for appellant.

      Pickens, Pickens S Boyce, for appellee.
   Jim Johnson, Associate Justice.

This is an action for damages allegedly resulting from a firing in violation of the terms of a labor contract. The action was brought by a former employee against the employer.

On March 12, 1959, appellant Clara Andrews was discharged by her employer, appellee Victor Metal Products Corporation. Appellant applied for unemployment benefits, which were denied. Appeals were taken under the Employment Security Act up through the Jackson Circuit Court. That court found that the record compiled in the appellate process contained substantial evidence to support the administrative findings of appellant’s disqualification for unemployment benefits. A judgment was entered denying appellant such benefits. No appeal was taken from that judgment. That case was number 2040 in the Jackson Circuit Court.

Sometime after the commencement of the action for unemployment compensation, appellant filed the present suit against appellee in Jackson Circuit Court for damages for breach of her employment contract. At the time appellant was fired, appellee had an agreement with A. F. L. Local 230, Aluminum Workers International Union, of which, appellant was a member in good standing. The contract provided in part as follows:

“Article II. Section 2. The company has the right to discharge or suspend any employee for cause, including failure to comply with published or posted plant rules and the terms of this agreement. Such employee and president of the Local Union shall be advised in writing by the Company within 24 hours of such discharge (excluding Saturday and Sunday) of the reason for such discharge or suspension; and the employee shall have the right to question if the discharge or suspension was for cause or violation of such plant rules or the terms of this agreement by appeal in writing within three working days through the grievance procedure established herein, including arbitration.”

Appellant contends that she received no written notice of the termination as provided in the company-union contract, and that she was thus prevented from following the grievance procedures. In response to request for admissions, appellee specifically admitted that, “Victor Metal Products Corporation never at any time between March 12,1959, and September 15,1960, advised Clara Andrews in writing of the reason for her discharge because of the fact that she was present at the discharge and informed personally and had knowledge. Advice was given in writing after claim for Employment Security Benefits was filed.”

Appellee answered appellant’s complaint by general denial and entered a plea of res judicata. In support of such plea the judgment rendered in Jackson Circuit Court case No. 2040 was made a part of the record. On January 23, 1962, the trial court sustained appellee’s plea of res judicata and dismissed appellant’s complaint. An appeal to this court followed. With only a partial record of the proceedings in Jackson Circuit case no. 2040 before us on that appeal, we, on October 15, 1962, reversed the trial court’s judgment and remanded the cause for further proceedings. See Andrews v. Victor Metal Products Corp., 235 Ark. 568, 361 S. W. 2d 19.

Upon remand appellee, at a hearing before the Circuit Court on February 22, 1963, presented a motion for summary judgment and introduced into evidence the entire transcript as well as the trial briefs in Jackson Circuit case no. 2040. Thereupon the trial court again dismissed appellant’s complaint, stating, “That the issues in the cause having been previously tried by this court in Circuit case no. 2040, plaintiff is estopped to bring this action. ’ ’ From this second dismissal, appellant prosecutes the present appeal.

For reversal appellant urges two points which are closely related, if not identical, which are: (1) the issues in this cause have not been previously tried by the Jackson Circuit Court in case no. 2040, and (2) appellant is not estopped to bring this action.

With the complete record in the Jackson Circuit case no. 2040 before us on the present appeal, it appears that that case was tried according to the terms of the Employment Security Act, Ark. Stat. Ann. §§ 81-1101-81-1122 (Eepl. 1960). Section 81-1105 sets forth the conditions of eligibility for unemployment compensation; Section 81-1106 sets forth the conditions of disqualification among which is subsection (b) (1) which reads as follows:

“If he is discharged from his last work for misconduct in connection with the work. Such disqualification shall be for eight (8) weeks of unemployment as defined in subsection (i) of this section.”

The record reveals that appellant was fired from her employment and thereafter filed a claim for unemployment benefits under the provisions of Ark. Stat. Ann. § 81-1107 (Eepl. 1960). The Employment Security Division local office made a determination that appellant was disqualified for compensation under, the provisions of § 81-1107 (b) (1) in that appellant was discharged for insubordination. Under the provisions of § 81-1107 (d) (2) an appeal wTas taken from the decision of the agency to an Appeals Eeferee. The Eeferee affirmed the determination of the agency and from such affirmance an appeal ivas taken, under the provisions of § 81-1107 (d) (3), to the Board of Review. The Board of Review upon a hearing affirmed the findings of the Appeals Referee and from such affirmance appellant, under the provisions of § 81-1107 (d) (7), appealed to the Jackson Circuit Court. The only jurisdiction the circuit court had in regard to judicial review of the decision of the Board of Review is set forth in § 81-1107 (d) (7):

“In any proceeding under this subsection the findings of the Board of Review as to the facts, if supported by evidence and in the absence of fraud, will be conclusive and the jurisdiction of said court shall be confined to questions of law.”

The circuit court, in making its ruling in case no. 2040, advised the attorneys of record by letter as follows:

“It is the opinion of the court that the contract between the Petitioner [appellant] and Victor Metals in no way binds or affects the State of Arkansas. The decision of the Board of Review is affirmed by this court.”

Appellee earnestly contends that the central and determinative issue in Jackson Circuit ease no. 2040 was whether appellant was legally discharged under the terms of the union contract when the company failed to give the written notice which the contract called for. It is true that appellant included argument on the violation of the terms of the contract in her brief submitted to the circuit court, however, there is no- indication from the record that the labor contract had nor, under the particular facts in that case, could have had (Robertson v. Evans, 180 Ark. 420, 21 S. W. 2d 610) any bearing whatever on the decision reached by the Agency, the Appeals Referee, the Board of Review, or the Circuit Court. In our view the sole question involved in Jackson Circuit case no. 2040 was, simply, whether appellant was eligible for unemployment compensation benefits under the provisions of the Employment Security Act.

This being so, we find that Jackson Circuit case no. 2040 is not res judicata to the present common law action which grew out of a contractual relationship between appellant and appellee. See generally, Clark v. Whitney, 194 Ark. 858, 109 S. W. 2d 930.

Reversed and remanded.


author: Frank Holt, Associate Justice.

text:
    Hughes v. Hooker Bros.
    5-3167
    374 S. W. 2d 355
    Opinion delivered January 20, 1964.

      Griffin Smith, for appellant.

      William R. Butler, for appellee.
   Frank Holt, Associate Justice.

The appellants brought this action seeking an accounting and a declaratory judgment. They sought to recover deductions made by appellee from appellants’ earnings for 'Workmen’s Compensation Insurance coverage. In dismissing the action the Chancery Court rendered a decree finding that the appellants were independent contractors and that they liad elected, by written contract, to contribute the disputed deductions as their pro rata share of premiums for a policy of Workmen’s Compensation Insurance. Prom that decree appellants bring this appeal.

It is appellants’ contention that the only issue is whether “the deduction of sums from wages for defraying the cost of compensation coverage for the person from -whom the deduction has been made creates, as a matter of law, the relationship of employer-employee, regardless of any other factor.”

In support thereof appellants invoke Ark. Stat. Ann. § 81-1305 (B,epl. 1960) which requires every employer to secure compensation insurance for his employees and § 81-1320 which provides that no agreement is valid that requires an employee to pay any portion of the insurance cost. Therefore, such agreed insurance deductions are by operation of law illegal and should be refunded.

In the case at bar the appellants are truckers who signed a written agreement with the appellee to haul rocks from the quarry to the job site at $2.35 per ton, furnish their own trucks, gas, oil, maintenance, and auto insurance. The contract specifically provided that the appellants were independent contractors and that the appellee had no control over their hauling activities. The contract further provided that the appellee would carry a policy of Workmen’s Compensation Insurance for the benefit of appellants and that sufficient deductions would be made from appellants’ earnings to pay their pro rata share of the cost thereof. The appellants admit for the purpose of this appeal that if one item in the contract-—the Workmen’s Compensation Insurance deduction—were omitted, the contract would, in fact, establish an independent contractor relationship.

The appellants aver that the Chancellor erroneously took the position that they “must prove by evidence that they were employees.” We agree with the Chancellor. The burden of proof is upon the claimant to prove that he is an employee and acting within the scope of his employment in order to bring himself within the provisions of the Workmen’s Compensation Act. Farmer v. L. H. Knight Co., 220 Ark. 333, 248 S. W. 2d 111. Also, a tax deduction or the payment of Workmen's Compensation Insurance on a workman by the employer may be considered in determining the status of employer-employee. Smith v. West Lake Quarry & Material Co., 231 Ark. 294, 329 S. W. 2d 167; Farrell-Cooper Lbr. Co., v. Mason, 216 Ark. 797, 227 S. W. 2d 444, and Ozan Lumber Co., v. McNeely, 214 Ark. 657, 217 S. W. 2d 341. But here it cannot be said that the appellants proved themselves to be employees by a preponderance of the evidence.

The appellants further contend that the agreed deductions from their earnings for Workmen’s Compensation Insurance Coverage estop the appellee from denying an employer-employee relationship. In support of this contention the appellants roly upon our recent case of Stillman v. Jim Walter Corp., 236 Ark. 808, 368 S. W. 2d 270, where agreed deductions were made for the payment of Workmen’s Compensation Insurance. There the employer asserted as a defense to a workman’s claim for benefits that an independent contractor status existed and, therefore, the claimant could not recover because he urns not an employee. The case did not turn on the doctrine of estoppel as we found it unnecessary to reach that question. We held that since the appellee had contracted to furnish insurance coverage to the appellant, the appellee was bound by its contractural obligation and had no right to repudiate it regardless of the attitude of the insurance carrier. In the case at bar it is admitted that in at least one instance benefits were paid under this policy. If the benefits had been denied then the contractural obligation, as in the Stillman case, would be enforceable.

The Workman’s Compensation Act is designed for the benefit of the employer-employee relationship. It places a mandatory duty upon the employer to comply with it to insure the security of the employee. However, this Act does not prohibit employers and independent contractors from securing, by agreement, Workmen’s Compensation Insurance. We think it is desirable and implements the policy and purpose of the humanitarian objectives of the Act. Such offends neither'the spirit nor the letter of the law.

The decree is aiThm ■.!.


author: Boyd Tackett, Special Justice.

text:
    Berry v. Gordon.
    5-3045
    376 S. W. 2d 279
    Opinion delivered January 20, 1964.

      Macon £ Mooreheacl, Garner, Shaw £ Kimbrough, for appellant.

      Catlett £ Iienclerson, Bruce Bennett, Atty. General, Mehaffy, Smith, Williams, Friday £ Bowen, By Wm. J. Smith and Geo. E. Pike, Jr. for appellee.
   Boyd Tackett, Special Justice.

Appellant William. M. (Bill) Berry is a citizen and taxpayer of the State of Arkansas. At the time the Chancery Court action was instituted and .when the cause was concluded in the trial court, Appellee Nathan Gordon was Lieutenant Governor of the State of Arkansas, Appellee L. A. Clayton, was Treasurer of the State of Arkansas, and Appellee John P. Bethel -was Speaker of the House of the Arkansas State Legislature.

Appellant petitioned the Chancery Court of Pulaski County, Arkansas, in a taxpayer action, under Article XVI, Section 13, of the Constitution of the State of Arkansas, to enjoin and restrain appellees from paying out or reeeving public funds over and above their regular salaries—challenging the Constitutionality of Act 399 of the Arkansas Legislative Acts of 1961—and seeking an account of public funds paid out or received by appellees over and above their regular salaries.

The parties- stipulated that appellees paid out or received payments under Act 399 of the Arkansas Legislative Acts of 1961, and that expenses authorized by other legislation had been paid out and received by one or more of the appellees. Appellant and appellees moved for a Summary Judgment in the case. The matter was submitted to the trial court upon the pleadings, depositions, stipulations, and briefs of the parties. The Chancellor granted the Motion of Appellees for Summary Judgment and dismissed the Complaint of appellant upon the grounds that Act 399 of the Arkansas Legislative Acts of 1961 was not unconstitutional on its face, and that appellant had failed to introduce any evidence to show that the amounts received were unreasonable, arbitrary, used for unofficial purposes, or that the payments constituted an increase in salary rather than reimbursement or payment of expenses legally incurred— thus, this appeal.

The title of Act 399 of the Arkansas Legislative Acts of 1961 reads as follows: “An Act to Make an Appropriation to Defray Expenses in Connection with Public Relations Activities of Certain Constitutional Officers of the Executive Department of the. State of Arkansas.” SECTION 1 of the Act concerns the alleged need of some state officials to receive funds for public relations purposes, arising from the necessity of maintaining satisfactory public relations with official guests from neighboring states and the Federal Government. The Act declares as its purpose the promotion of the common good of the State of Arkansas by providing funds which will enable the state officials to continue beneficial public relations activities without personal financial hardship. SECTION 2 of the Act appropriates funds—payable from the Constitutional and Fiscal Agencies Fund—to defray expenses in connection with public relations of the following Constitutional Officers of the Executive Department the sum of One Thousand Eight Hundred (1,800) Dollars each for the fiscal year 1961-1962, and the sum of $1,800 each for the fiscal year 1962-1963: Lieutenant Governor, Secretary of State, Treasurer of State, Auditor of State, Attorney General, Land Commissioner, and Speaker of the House. SECTION 3 of the Act provides that, on the 1st day of each calendar month in each of the foregoing fiscal years, the Auditor of State shall issue a warrant drawn in favor of each of the named officials in the amount of one-twelfth of the appropriation allocated to each such official, authorizing and directing the State Treasurer to pay said warrants from funds appropriated. SECTION 4 of the Act repeals all laws and parts of laws in conflict with Act 399.

Appellant insists that Act 399 is in conflict with Amendment 5 and Section 6 of Amendment 6 of the Constitution of the State of Arkansas. Amendment 5 of the Arkansas Constitution provides that each Member of the General Assembly receive a designated sum per day during the first sixty days of any regular session of the State Legislature, a designated sum per day during the first fifteen days of an extraordinary session of the Legislature, and expenses for travel to and from the Seat of Government to attend regular and extraordinary sessions. The Amendment further provides that the terms of all Members of the General Assembly begin on the day of their election, and that they shall receive no compensation, perquisite, or allowance whatever, except as provided by the Amendment. Section 6 of Amendment 6 of the Arkansas Constitution provides that the Lieutenant Governor shall receive for his services an annual salary of Two Thousand (2,000) Dollars, and shall not receive or be entitled to any other compensation, fee or perquisite for any duty or service he may be required to perform by the Constitution or by law.

Concerning salary and expense entitlements of the Speaker of the House, we need to ascertain any changes made to Amendment 5 of the Arkansas Constitution by subsequent Amendments of our Constitution. Amendment 15 of the Arkansas Constitution provides for annual salaries to certain State and District officers, payable in monthly installments, and provides for salaries and expenses of the General Assembly Membership. Paragraph 3 of Amendment 15 provides that each Member of the General Assembly receive a designated sum each two-year period, the designated salary of the Speaker of the House of Representatives being one hundred dollars more each two-year period than the salary of the other Members of the General Asembly; provides an additional designated sum per day for Members of the General Assembly, including the Speaker, that they be required to attend an extraordinary session; and provides travel expenses to and from the Seat of Government to attend the regular and extraordinary sessions of the General Assembly. Amendment 15 repealed provisions of the Constitution of the State of Arkansas in conflict with the Amendment; and this Amendment does not contain a clause precluding the Speaker of the House or other Members of the General Assembly from receiving additional expenses.

Next we have Section 3 of Amendment 37 of the Arkansas Constitution, providing that each Member of the General Assembly receive a designated salary for each two-year period, the designated salary of the Speaker of the Honse of Representatives being One Hundred Fifty (150) Dollars more each two-year period than the salary of the other Members of the General Assembly; providing an additional designated sum per day for Members of the General Assembly, including the Speaker, that they be required to attend an extraordinary session; and providing expenses for travel to and from the Seat of Government to attend regular and extraordinary sessions of the General Assembly. Amendment 37 repealed all provisions of the Constitution of the State of Arkansas in conflict with the Amendment; and this Amendment does not contain a clause precluding the Speaker of the House or other Members of the General Assembly from receiving additional expenses.

Further concerning entitlements of the Speaker of the House, Amendment 48 of the Arkansas Constitution —the current Constitutional authority at the involved time—provides that each Member of the General Assembly receive a designated salary per annum, the designated annual salary of the Speaker of the Honse being One Hundred Fifty (150) Dollars more than the designated salary of the other Members of the General Assembly; provides an additional designated sum per day for Members of the General Assembly that the General Assembly be in regular session; provides an additional designated sum per day for Members of the General Assembly that they be required to attend an extraordinary session; and provides expenses for travel to and from the Seat of Government to attend regular and extraordinary sessions of the General Assembly. Amendment 48 repealed all provisions of the Constitution of the State of Arkansas in conflict with the Amendment; and this Amendment does not contain a clause precluding the Speaker of the House or other Members of the General Assembly from receiving additional expenses.

Concerning salary and expense entitlements of the Lieutenant Governor, we need ascertain any changes made to Section 6 of Amendment 6 of the Arkansas Constitution by any subsequent Amendments of our Constitution. Section 2 of Amendment 37 of the Arkansas Constitution—the current Constitutional authority at the involved time—provides annual salaries for officers of the executive department of the State of Arkansas, payable in monthly installments, including the annual salary of the Lieutenant Governor in the amount of $2,500. As beforementioned, Amendment 37 repealed all provisions of the Constitution of the State of Arkansas in conflict with the Amendment; and this Amendment does not contain a clause precluding the Lieutenant Governor from receiving additional expenses.

Concerning salary and expense entitlements of the State Treasurer, we need ascertain pertinent provisions of the Arkansas Constitution. (Appellant does not question by this litigation the entitlements of the other state officials named in Act 399 of the Arkansas Legislative Acts of 1961—Secretary of State, Auditor of State, Attorney General, or Land Commissioner—to receive expenses in addition to their salaries.) It should be noted that Section 23 of Article 19 of our Constitution provides that no officer of the state, nor any county, city, or town, shall receive, directly or indirectly, for salary, fees, and perquisites, more than $5,000 net profit per annum in par funds, and that any and all sums in excess of this amount shall be paid into the state, county, city, or town treasury, as shall hereafter be directed by appropriate legislation.

Constitutional Amendment 15, repealing Constitutional provisions in conflict, concerning salaries to most state officers, the Circuit Judges, the Chancellors, and Members of the General Assembly, afforded the Governor a salary of more than $5,000 per year, and provided fixed salaries for other state officers, Circuit Judges, Chancellors, and Members of the General Assembly.

It should further be noted that Constitutional Amendment 37 provides annual salaries to state officials as follows: Governor-$10,000, Lieutenant Governor-$2,500, Secretary of State-$5,000, Treasurer of State-$5,000, Auditor of State-$5,000, Attorney General-$6,000, and Commissioner of Lands-$5,000; provides salaries and expenses to Members of the General Assembly as herein-before noted, and provides annual salaries and expenses for Circuit Judges and Chancellors a sum of not less than $4,800 nor more than $7,200.

We must determine (1) whether the provision of Constitutional Amendment 5 precluding the Speaker of the House from receiving compensation, perquisites, or allowance, in addition to his entitlements under current Constitutional provisions in effect, has been repealed or continues in force; (2) whether the provision of Section 6 of Constitutional Amendment 6 precluding the Lieutenant Governor from receiving compensation, fee, or perquisite, in addition to his entitlements, under the current Constitutional provisions in effect, has been repealed or continues in force; and (3) whether the current Constitutional provisions in effect preclude the Treasurer of State from receiving public relations or other expenses in- addition to his salary entitlements.

The two familiar rules or classifications applicable in determining whether or not provisions of the Constitution have been repealed are set forth in the case of Babb v. El Dorado, 170 Ark. 10, 278 S. W. 649:

“One is that, where the provisions of two statutes are in irreconcilable conflict with each other, there is an implied repeal by the latter one which governs the subject matter so far as relates to the conflicting provisions, and to that extent only.

“The other one is that a repeal by implication is accomplished where the Legislature takes up the whole subject anew and covers the entire ground of the subject matter of a former statute and evidently intends it as a substitute, although there may be in the old law provisions not embraced in the new.

“Where there are two Acts on the same subject, the rule is to give effect to both, if possible, but, if the two are repugnant in any of their provisions, the latter Act, without any repealing clauses, operates to the extent of the repugnancy as a repeal of the first; and, even where two acts are not in express terms repugnant, yet, if the latter Act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first Act, it will operate as a repeal of that Act.”

The rules of construction governing Constitutional xVmendments are the same as the rules governing the construction of statutes—Bailey v. Abington, 201 Ark. 1072, 148 S. W. 2d 176. It is a rule of universal application that the Constitution must be considered as a whole, and that, to get at the meaning of any part of it, we must read it in the light of other provisions relating to the same subject. Chesshir v. Copeland, 182 Ark. 425, 32 S. W. 2d 301. The Constitution is to be construed according to the sense of the terms used and the intention of its authors. Rankin v. Jones, 224 Ark. 1001, 278 S. W. 2d 646.

ITpon ax^plying these applicable rules to determine whether the early Constitutional provisions have been repealed, considering all of the Constitutional provisions and Amendments as a whole, it is clear, concerning expense entitlements of the Speaker of the House, that Paragraph 3 of Constitutional Amendment 15 repealed CVmstitutional Amendment 5, except the beginning date of terms of Alembers of the General Assembly, which was repealed by Section 6 of Constitutional Amendment 23; that Section 3 of Constitutional Amendment 37 repealed Paragraph 3 of Constitutional Amendment 15; and that Constitutional Amendment 48 repealed Section 3 of Constitutional Amendment 37. Constitutional Amendment 48 is full and complete and covers the pertinent subject matter of Constitutional Amendment 5, Paragraph 3 of Constitutional Amendment 15, and Section 3 of Constitutional Amendment 37. It embraces new provisions, plainly showing that it was intended as a substitute for the former pertinent Constitutional Amendments. There were three Constitutional Amendments covering the subject matter of Constitutional Amendment 5 from 1913 until the adoption of Constitutional Amendment 48 in 1958—a period of 45 years— and had there been a desire to continue the pertinent prohibition contained in Constitutional Amendment 5, same would have been included in these Constitutional Amendments.

Applying these applicable rules, it is clear, concerning expense entitlements of the Lieutenant Governor, that Section 2 of Constitutional Amendment 37 fully and completely covers the provisions of Section 6 of Constitutional Amendment 6, and replaces and repeals such Constitutional provisions. Constitutional Amendment 6 was adopted in 1914. Thirty-two years later, the same subject matter of Section 6 thereof was covered by Section 2 of the Constitutional Amendment 37; and, had there been an intent to continue the involved prohibition in effect, same would have been included in the latter Constitutional Amendment, as did Section 3 of Constitutional Amendment 37 cover expense entitlements of Circuit Judges and Chancellors. Subsequent to the adoption of Section 6 of Constitutional Amendment 6 and prior to the adoption of Section 2 of Constitutional Amendment 37, our Supreme Court decided the case of Ashton v. Ferguson, 164 Ark. 254, 261 S. W. 624, which invalidated certain expense payments because of the prohibition of Constitutional Amendment 5. Thereafter, Section 2 of Constitutional Amendment 37 was adopted, removing the restrictions upon the payment of expenses to the Lieutenant Governor.

Further applying these applicable rules, it is clear, concerning expense entitlements of the Treasurer of State, that Section 23 of Article 19 of the Constitution of the State of Arkansas, precluding state officers from receiving salary, fees, and perquisites, of more than $5,000 per year, was modified by Constitutional Amendment 15, and was definitely repealed, concerning entitlements of the executive officers of the state, by Section 2 of Constitutional Amendment 37. The entire subject of Section 23 of Article 19 of the State Constitution and Constitutional Amendment 15, concerning entitlements of the executive officers, is fully covered and repealed bjr Constitutional Amendment 37.

Our state Constitution is not a grant of power, but constitutes a limitation, and, if there be no limitation of power, impliedly or specifically expressed, the Legislature, in the exercise of its sovereign right, may authorize such appropriations as it deems necessary. Newton v. Edwards, 203 Ark. 18, 155 S. W. 2d 591; Smart v. Gates, 234 Ark. 858, 355 S. W. 2d 184; Hooker v. Parker, 235 Ark. 218, 357 S. W. 2d 534. Courts are without jurisdiction to review the discretion of the Legislature in the exercise of the power it possesses Russell v. Cone, 168 Ark. 989, 272 S. W. 678.

There is no Constitutional prohibition precluding the Lieutenant Governor, the Secretary of State, the Treasurer of State, the Auditor of State, the Attorney General, or the Land Commissioner, from receiving expenses for the purposes set forth in Act 399 in addition to their authorized salaries; and the Speaker of the House is not prohibited from receiving expenses in addition to his entitlements enumerated in Constitutional Amendment 48. Act 399 of the Arkansas Legislative Acts of 1961, with the omission of Paragraph 3 thereof, is not unconstitutional, and the discretion exercised by the Legislature in this instance should not concern this court.

The cases of Tipton v. Parker, 71 Ark. 193, 74 S. W. 298; Dickinson v. Johnson, 117 Ark. 582, 176 S. W. 116; and Ashton v. Ferguson, supra, which appellant insists control this case, lend no assistance. All three cases were decided prior to the adoption of the Constitutional Amendments repealing the provisions of Constitutional Amendment 5 and Section 6 of Constitutional Amendment 6 precluding the Speaker of the House and the Lieutenant Governor from receiving expenses. The Tip-ton case merely held that the Senate had no authority under a Senate Resolution, not concurred in by the House, to extend powers and duties of a Senate Committee beyond duration of the legislative session and to fix compensation of members of the committee. The Dickinson case held that the Legislature, by concurrent resolutions, could not authorize investigating committees to perform duties beyond the duration of the legislative session, and afford compensation and expenses to the committee membership; that such legislative authorization would have required the enactment of a Bill. The Ashton case simply ruled that Members of the Legislature were not entitled to allowances prohibited by the Constitutional provisions in effect at that time. Those Constitutional provisions have been repealed.

The cases of White v. Williams, 187 Ark. 113, 59 S. W. 2d 23, and Griffin v. Rhoton, 85 Ark. 89, 107 S. W. 380, cited by appellant, offer no assistance because those cases concern a Sheriff and a Prosecuting Attorney receiving funds prohibited by Section 23 of Constitutional Article 19, which Constitutional prohibition is not involved in this instance. Because Section 4 of Constitutional Amendment 37 limits Circuit Judges and Chancellors to salary and expenses of not more than $7,200 per year, the case of Gipson v. Maner, 225 Ark. 976, 287 S. W. 2d 467, cited by appellant, is not in point for the reason that the current Constitutional Amendments in effect do not prohibit the Speaker of the House, the Lieutenant Governor, and the Treasurer of State from receiving expenses in addition to their salaries.

We must be concerned with whether the Speaker of the House is entitled to public relations expenditures in light of the title of Act 399 announcing the Act as an appropriation to defray public relations expenses of Constitutional Officers, and in view of Section 2 of the Act 'which appropriates expenses of certain Constitutional Officers of the Executive Department, including the Speaker of the House. Of course, the Speaker of the House is not a Constitutional officer and is not a member of the Executive Department. While the title of an Act may be considered in arriving at the legislative intent, it is no part of the Act and is not controlling in its construction. Glover v. Henry, 231 Ark. 111, 328 S. W. 2d 382. The drafters of the Act erroneously referred to the Speaker of the House in the caption and in Section 2 thereof as a Member of the Executive Department. However, that error does not affect the status of the Speaker of the House as a Member of the General Assembly, and in no manner affects the issue of whether the State Officials set forth in Act 399 are entitled to public relations expenditures. Bailey, Lieutenant Governor v. Abington, 201 Ark. 1072, 148 S. W. 2d 176.

Any fair construction of Act 399 of the Legislative Acts of 1961 leads us to the conclusion that the Legislature intended to afford reimbursement of public relations expenditures incurred by certain state officials, as provided in Section 1 of the Act. Section 3 would authorize monthly payments of public relations expenditures by the state officers whether or not they had incurred such expenditures. Therefore, we conclude that Section 3 of Act 399 must be stricken. Otherwise, such reimbursement would violate our Constitution. In view of the expressed intent of the Legislature to provide these state officials with limited public relations expenditures, the officials are not entitled to reimbursement of expenditures not expended. That Section, when severed, does not affect the intent of the Legislature. Every presumption must be indulged in favor of the constitutionality of an Act of the Legislature. Beaty v. Humphrey, 195 Ark. 1008, 115 S. W. 2d 295.

In the case of Bailey v. Abington, supra, this Court held that in construing legislation and Constitutional provisions, it is the duty of the courts to ascertain and give effect to the intent of the framers and to the people who adopted it, even though the true intention, though obvious, has not been expressed by the language employed when given its literal meaning; that the courts are confined to the real purpose and intention of the language rather than to the literal verbiage employed; that the reason, spirit, and intention of the legislation or Constitutional provision shall prevail over its letter; that this rule of construction is especially applicable where adherence to the letter would result in absurdity or injustice, or would lead to contradiction, or would defeat the plain purpose of the law; and that to afford such construction, courts must restrict, modify, enlarge, and/or transpose the expressed terms.

(Supplemental opinion on denial of petition for rehearing delivered March 23, 1964, p. 865.)

We note that Act 399 of the Arkansas Legislative Acts of 1961 has expired. The evidence does not reveal whether the public officials spent more or less for public relations than allowed them by Act 399. While the officials afforded public relations expenditures by virtue of Act 399 are not entitled to reimbursement of expenditures not expended, they are not required to make an accounting at this time because the Attorney General, on the 8th day of June, 1953, issued an Opinion to the Auditor of State, concerning Act 467 of the Arkansas Legislative Acts of 1953—the same legislation as Act 399 of 1961, except that the Speaker of the House was not named in the former Act as an officer entitled to public relations expenditures. Section 3 of each Act being word for word the same—wherein the Attorney General advised the Auditor of the State that the legislation constituted no Constitutional objection and that it was the duty of the Auditor of State to comply with the Act. There has been no other Attorney General Opinion or court determination contrary to the Attorney General’s Opinion of 1953. The Attorney General’s Opinion relieves appellees from the burden of making an accounting. State v. Fidelity & Deposit Company of Maryland, 187 Ark. 4, 58 S. W. 2d 696; State, ex rel. Attorney General v. Broadway, 192 Ark. 634; State ex rel. Smith v. Leonard, 192 Ark. 834, 95 S. W. 2d 86. Then, too, there is nothing in the record remotely indicating that either appellee has acted in the premises except with honesty and sincerity.

The Decree of the Pulaski County Chancery Court is affirmed, subject to modification severing Section 3 of Act 399 of the Arkansas Legislative Acts of 1961; and this cause is remanded with directions that the Chancellor modify his Decree by striking Section 3 of Act 399.

Holt, J., not participating.


author: Carretón Harris, Chief Justice.

text:
    Parrish Esso Service Center v. Adams.
    5-3170
    374 S. W. 2d 468
    Opinion delivered January 27, 1964.

      Rieves ■& Smith, for appellee.

      R. Dale Hopper and Everard Weisburd, for appellee.
   Carretón Harris, Chief Justice.

This litigation involves two questions of first impression. Thurman L. Adams, employed as a service station attendant for Parrish Esso Service Center at West Memphis, was injured in the early hours of May 6, 1960, admittedly in the course of his employment. The injury occurred when a gust of wind, on the service station lot, lifted appellee into the air, carried him approximately seventy-five feet, and dropped him on the concrete apron. The Commission held that the claimant sustained an accidental injury which arose out of and in the course of his employment, hut held in abeyance for future determination the entering of an award because of inconclusive proof relative to claimant’s temporary total, temporary partial, and permanent partial disability. The findings of the Commission were appealed to the Crittenden County Circuit Court, and that court affirmed the order entered by the Commission. From the judgment of the Circuit Court comes this appeal.

Two questions alone are involved in the litigation, and appellants rely on two points for reversal of the judgment as follows:

I

“Appellee’s claim was not filed within the time prescribed by law and was, therefore, barred by the statute of limitations.

II

“Appellee’s injury did not arise out of and in the course of his employment but instead was caused solely by an act of God, which was unrelated to his employment. ’ ’

I

Ark. Stat. Ann. § 81-1318 (a) (1) (Repl. 1960) provides:

“A claim for compensation for disability on account of an injury (other than a occupational disease and occupational infection) shall be barred unless filed with the Commission within two (2) years from the date of the accident.”

The following stipulation was entered into by the parties:

“1. That R. Dale Hopper, one of claimant’s attorneys would testify at the hearing on this claim that between the hours of Five (5:00) p.m. and Five Thirty (5:30) p.m. Friday, May 4, 1962, he deposited in the U. S. Mails at the Post Office, of West Memphis, Arkansas, a letter constituting a claim for Workmen’s Compensation Benefits in behalf of claimant, said letter being properly addressed to the Workmen’s Compensation Commission at Little Rock, Arkansas, and having-proper postage affixed.

“2. That Donald Hall, Postmaster of the "West Memphis Post Office would testify at the hearing that mail addressed to a Little Rock, Arkansas, address and deposited in the West Memphis Post Office with proper postage affixed thereon between the hours of Five (5:00) p.m. and Five Thirty (5:30) p.m. on Friday, May 4,1962, would in the ordinary course of mails, reach the Little Rock Post Office in time for delivery the following morning Saturday, May 5, 1962.

“3. That said claim was not actually received by the Workmen’s Compensation until Monday, May 7, 1962.”

Further,

“It is stipulated and agreed by and between counsel for each party herein that the Arkansas Workmen’s Compensation Commission’s office, Little Rock, Arkansas, is always closed for business on Saturday and Sunday of each week of the year and that the same was closed on Saturday and Sunday, May 5 and May 6, 1962.”

Counsel for both sides cite several Arkansas decisions on the question of limitation, but as the Commission pointed out, most of these decisions concern interpretations of law in contract and in tort. In fact, only one Arkansas case cited, relative to limitations, is a Compensation case, and in that case, the claimant did not file his claim for compensation for more than a year after the time provided by statute. The Commission, in holding that Sunday was not a day to be counted, relied in large measure on the New Jersey case of Potter v. Brady Transfer and Storage Company, 91 A. 2d 111. In that case the claimant filed his claim on a Monday, whereas the time period under the statute of limitations expired on the preceding day, Sunday. The court, in holding that the claim had been filed in time, did so on the basis that Sunday was, by law, a legal holiday, and the Sunday statute and limitations statute were therefore in conflict. The enactment of the statute declaring Sunday a legal holiday preceded the passage of the limitations statute, and the court said: “Whenever the Legislature fixes a time period, it should be assumed that it is enacting the law in the light of those other statutes.”

We need not discuss our approval or disapproval of the view held by the Workmen’s Compensation Commission (in excluding Sunday in computing the time limit); rather our opinion that the claim was filed in time is based on the fact that such claim would have arrived at the Commission office for filing on Saturday, except for the fact that the office was closed on that day. In the case of Mary Gail Coal Co. v. Rhodes, 284 S. W. 2d 97, the Kentucky Court of Appeals passed upon this same question, stating that there was, under Kentucky law, no legal basis for declaring Saturday a holiday.

“Aside from this, although Saturday is observed as a day of rest by the state offices in Frankfort, one may certainly assume it is a common understanding of the public at large that Saturday is not a recognized legal holiday.

“As is customary, appellee’s attorney chose the United States mail as the medium to deliver the application for compensation to the Board. Under normal circumstances this instrument would have arrived on time and have been seasonably filed, but instructions from the Board itself intervened and caused the lapse of the limitation period. As has been mentioned, appellee had no notice the postmaster had been instructed not to deliver registered and special delivery mail to the Board on Saturday and we believe a claimant, in asserting an alleged legitimate claim for compensation, should not be held subject to the adverse consequences of an expedient postal delivery arrangement of which he had no knowledge. January 15, 1954, did not fall on Sunday or a legal holiday, and the application sent by mail could have been delivered on that date in the usual course. What could have ordinarily been done, should be considered done, and the application should have been marked ‘filed on January 16, 1954’.”

Likewise, Saturday is not a legal holiday in this state, and we agree with the language of the Kentucky court that “one may certainly assume it is a common understanding of the public at large that Saturday is not a recognized legal holiday.” Appellants place great emphasis upon the meaning of the word “file,” contending that an instrument or claim cannot be considered filed until it is received by the proper officer, and that the date of mailing a notice or claim is actually immaterial. We consider appellants’ interpretation as highly technical, and we take occasion to point out the language used by this court (quoting a Mississippi case) in S. E. Prince Poultry Company v. Stevens, 235 Ark., 1034, 1038, 363 S. W. 2d 929, as being quite apropos to the case at bar.

“ ‘These Compensation Acts are entitled to and have universally received a liberal construction from the courts. The humanitarian objects of such laws should not, in the administration thereof, be defeated by overemphasis on technicalities—by putting form above substance.’ ”

To hold in accord with the position taken by appellants, could well result in working an unjust and undue hardship upon claimants in particular cases. For instance, some offices in the state and over the country close, not only on Christmas Day, but (dependent upon the date of Christmas) for several days thereafter. Should one be penalized because the instrument or claim would normally reach the proper officer on one of these days, but is not delivered because of the fact that the office is closed1? For that matter, mail is sometimes delivered to the wrong office, particularly where several departments are housed in the same building, and is not re-delivered to the proper department for a day or two thereafter. Should a claimant lose all rights, because of such an occurrence over which he has no control1? The answer is obvious, and we decline to hold that the claim was not filed in time.

II

While appellants concede that appellee’s injury arose during the course of his employment, they vigorously contend that the accident did not arise out of the employment, i.e., because of the employment, but that the injury sustained was the sole result of an act of God, unrelated to the employment itself. Counsel for both appellants, and appellee present excellent briefs, and it is pointed out that there is not a single reported case'in the United States where an individual was injured solely by the forces of a tornado or windstorm as in the case at bar. Appellants quote the general rule as stated by Schneider in the “Workmen’s Compensation Text,” Volume 6 (Perm. Edition), Page 78.

“The general rule with respect to injuries and deaths due to tornadoes, hurricanes, and other forms of windstorms is, if an employee, by reason of his employment, is exposed to a risk of being injured by storm ‘which is greater than the risk to which the public in that vicinity is subject, or if his employment necessarily accentuated the natural hazard from the storm, which increased hazard contributed to the injury,’ it is an ‘injury arising out of the employment, although unexpected and unusual.’ The test has been said to be ‘not whether the injury was caused by an act of God,’ but ‘whether the one injured was by his employment specially endangered by the act of God.’ ”

While most of the courts appear to accept this rule, the various jurisdictions have certainly reached different conclusions in applying the rule, and decisions from different states are frequently conflicting, in some instances where the facts are hardly distinguishable. Appellants insist, however, that in all of the cases, the injury complained of was not attributable solely to the elements (as here), but there were always other factors which, when connected with claimant’s duties, contributed to the injury. For instance, in one case, a smoke stack crumpled and fell upon an individual; in another, a building loaded with cottonseed hulls collapsed and injured a workman, the load being the contributing factor in the building’s inability to withstand the onslaught of the storm. Numerous other cases to the same effect are cited. On the other hand, as pointed out by appellee, some courts have not even required that the employees show that he was, because of his employment, exposed to a greater risk than the risk to which the general public in that vicinity was exposed. It has been sufficient in those cases that the employee merely establish that he was in the location where the injury occurred solely because of his employment. It is not necessary that we pass on this contention raised by appellee, and we do not pass on it, inasmuch as the Commission’s decision was based on the fact that Adams, because of performing his duties was, exposed to a more dangerous situation (as to the storm) than that of the general public in the vicinity, and we think there was substantial evidence to support that view.

Let us look to the circumstances surrounding the instant casé. Adams testified that he was employed as night manager of the station, and at the time in question was the only person working on the shift which started at 9:00 o’clock in the evening and ended at 7:00 o’clock the next morning. Claimant stated that it was raining, with thunder and lightning, at the time he went to work, and the weather remained “fairly rough” until the early hours of the morning. Though it continued to rain, the wind died down considerably for about an hour and a half before the accident. Adams testified that the •electricity at the station failed at about 3:30 A.M., due to lightning striking a transformer about a block east of the station. Adams then called the Police Depai’tment, and requested that the power company be contacted so that he could get his lights back on at the station. According to claimant, electricity controlled the gas pumps, lights, tire machine, battery charger, drink boxes and practically all facilities of the station. The witness stated that he decided that, while it was not raining, he would go out and “fasten up and secure up” out on the front, so that if it started raining hard again, he could stay in the office until the lights were bach on.

“I went out to the islands and anchored everything and walked out to my price signs which was out against the highway and pushed one concrete block up on the legs of it that were used to keep or prevent the wind from blowing it over, as much as possible.”

Adams was wearing a rain suit and overshoes, and was using a flashlight to find his way around. Claimant stated that as he was engaged in weighting down the price sign, he noticed the power company truck a short distance down the highway.

“I was raising up and I said, ‘Now I can tell him where those wires are down, to where I can get my lights back on that much quicker, because he couldn’t see the light wires down. ‘ * * * Just as I raised up and decided to tell him where the wires were at, I heard this storm.

* * * I had time to turn and go in the process of taking one step and that’s the last I know of until I found myself on the concrete.”

It developed that Adams had been blown about seventy-five feet, and the witness stated that he heard the wind, and then had a sensation of falling.

The Commission, in finding that the claim was compensable, stated:

“The uncontradicted proof in this case is the claimant, in the performance of his duties for his employer, had left the service station building and had gone outside to secure everything before the weather worsened; and while in the performance of these duties, was injured by an act of God, a windstrom. * * *

“In our view, the claimant here sustained an accidental injury which arose out of and in the course of his employment. The fact that he left the safety of the service station to go outside in the performance of his duties, and was there performing such duties when he ivas injured, placed him at that moment in a more dangerous situation insofar as the “Act of God” was concerned than that to which the general public in that vicinity ivas subjected; for the general public was not required to go outside at such a time but could remain in places of safety.”

We think there was substantial evidence to support the finding of the Commission. Certainly, there was a duty upon Adams, as an employee, to protect the property of his employer, and the protection that Adams was seeking to afford, could not have been done without leaving the building. The acts being performed were as much a part of his duties as though he had been waiting on a customer when the wind struck. There is absolutely no evidence that Adams ivas not engaged in the work that he testified to at the time the injury ivas sustained. It was within the province of the Commission to determine whether Adams’ testimony was worthy of belief. The Commission decided that question in the affirmative, and we hold that the testimony of claimant constituted substantial evidence.

Affirmed.

       214 Ark. 416, 216 S. W. 2d 796.

       An interesting article by Samuel B. Horowitz, entitled “Workmen’s Compensation: Half Century of Judicial Developments,” appears in 41 Neb. L. Rev. No. 1 (Dec. 1961 Ed.). In Section 3 of the article, “Acts of God, Positional and Local Risks,” the author discusses the “increased risk” concept and the “actual risk” test wherein the sole question is whether the employment exposed the employee to the risk.

       The location of the gasoline pumps.

       At another point in his testimony, Adams stated that he saw the truck proceeding on the highway while sitting in the office and before he went outside.

       According to the witness, as a result of the storm, “there was one of the glasses broken out and the oil racks out there just blown all over everywhere, the price sign was blown down and as to the other damage, Sir, honestly I don’t know.”


author: Ed. F. MoFaddin, Associate Justice. Jim Johnson, Associate Justice

text:
    Williams et al v. State
    5074
    375 S. W. 2d 375
    Opinion delivered January 27, 1964.
    [Rehearing denied March 9, 1964.]

      Guy li. Jones and Francis T. Donovan, for appellant.

      Bruce Bennett, Attorney General, By Jerry D. Patterson, Asst. Atty. General, for appellee.
   Ed. F. MoFaddin, Associate Justice.

The appellants are George Williams, Henry Turney, Jess Holeman, and Marvin Stripling. They were jointly charged, tried, and convicted of the crimes of burglary and grand larceny (Ark. Stat. Aim. § 41-1001 and § 41-3907 [1947]); and they prosecute this appeal. Henry Turney filed a separate motion for new trial containing eleven assignments, and the other three appellants filed a joint motion for new trial containing fourteen assignments. In addition, Williams filed a separate pleading entitled, “Motion to Set Aside the Verdict as to George Frank Williams,” and this pleading contained two assignments. The appellants have grouped all their assignments in eighteen points which are presented in their joint brief; and we will group the various points in suitable topic headings.

The information charged—and the State’s evidence was designed to establish—that on the 18th of February, 1962, the four named appellants committed the crimes of burglary and grand larceny by feloniously, etc. breaking and entering the building of Roy Nelson, Jr. in Lonoke County, Arkansas, and taking away hot water tanks, tools, plumbing equipment, a rifle, a chain saw, and various other items in excess of the value of $35.00. The appellants were arrested in Faulkner County on February 19, 1962; and the articles mentioned in the information were found and returned to the owner, Roy Nelson, Jr. The legality of alleged confessions and the way the officers obtained the property constitute some of the issues on this appeal, as well as other rulings in the course of the trial.

I. Alleged Error In Admitting Testimony Relating To Matters Which Occurred Four Bays Before The Crimes Were Alleged To Have Been Committed. State Police Officer Bill Brashers testified that on February 14, 1962, he arrested Marvin Stripling in Lonoke County for driving a car without a driver’s license; that Stripling was driving a white Ford pick-up truck; and that Stripling said the truck belonged to Henry Turney, who lived in Faulkner County, Arkansas. Brashers testified that he checked out the license number and found that the truck was registered in Turney’s name. Lonoke City Officer Bobby Joe Davis testified that Brashers brought Stripling to the Lonoke City Hall; that Stripling called Turney iu Conway, who came to Lonoke and posted bond for Stripling; and that Stripling and Turney left in the said white Ford pick-up truck.

Objections were made to all of this testimony because it related to events four days before the crimes here charged; but this testimony was admissible as links designed to connect Turney and Stripling with the crimes here charged, since it was testified that the said white Ford pick-u-p truck was the same one that was used to haul away the articles from Nelson’s house on February 18th and some of the stolen property was found in the same truck, as will subsequently be mentioned. The evidence was that Turney and Stripling were together in the car that ivas subsequently used to carry away the stolen articles; and this evidence was for the purposes of showing identification and complicity in the crimes here charged. The evidence detailed circumstances tending to connect the owner and driver of the truck with the crimes charged; so the appellants’ objections on this point are without merit.

II. The Appellants Claim That The Alleged'■ Confessions By Stripling And Iloleman Should Not Have Been Admitted In Evidence. Roy Nelson testified that on Saturday, February 17th, he was constructing a dwelling seven miles from Lonoke and worked until about 8 P.M.; that when he went back to work on Sunday morning, February 18th, he discovered that someone had stolen all of the material supplies, parts tools, etc., from the house, including hot water heaters, bathroom fixtures, doors, plywood, etc.; that he could see from the vehicle tire tracks on the ground where the vehicle and attached trailer had entered and left the premises; and that he immediately contacted the Sheriff of Lonoke County and gave him a list of the articles stolen of a value in excess of $2,000.00. Sheriff Minton of Lonoke County testified that after observing the tracks and other matters at the Nelson house, he suspected that the said tvhite Ford pickup truck which Stripling had been driving on February 14th was the vehicle that had been used in the commission of the burglary and grand larceny. Minton further testified that he and State Policemen Caldwell and Mullinix obtained from a Justice of the Peace in Lonoke County “John Doe” warrants for the arrest of the occupants of the said truck; that they went to Conway -where the truck was located at the home of appellant Holeman; and that Stripling and Holeman were arrested and taken to Lonoke and incarcerated. The officers testified that Holeman and Stripling confessed their parts in the crimes.

In advance of the jury trial the appellants moved to exclude the confessions of Holeman and Stripling as illegally extorted and as obtained under force and duress. At the said advance hearing Holeman and Stripling-testified as to the alleged beatings, etc. administered to them to force the confessions. The Trial Court held that the issue of the voluntariness of the confessions was for the jury; and at the trial the officers just as stoutly denied all such mistreatment of the prisoners and claimed that the confessions were voluntarily given. We cannot say that there was error in the ruling of the Trial Court in submitting to the jury the issue of the voluntariness of the confessions. See Jones v. State, 213 Ark. 863, 213 S. W. 2d 974; and Moore v. State, 229 Ark. 335, 315 S. W. 2d 907. The issue of the voluntariness of the confessions was submitted to the jury under instructions not here claimed to be erroneous. The question of whether the arrests were made by the State Police Officer, who could make arrests in Faulkner County, or by Sheriff Minton of Lonoke County, who could not make arrests in Faulkner County, was a fact issue; and no error is claimed as to the instruction on this matter.

III. Appellants Claim A Violation Of Their Constitutional Rights Against Unreasonable Search .and Seizure. This point is most vigorously urged; and this is the most difficult question in the case. In advance of the jury trial the appellants presented their motion to suppress all evidence obtained by search and seizure and claimed that there were no valid search warrants. We recognize the holding of the Supreme Court of the United States in Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684, 84 A.L.R. 2d 933. Under that case, evidence illegally obtained is not admissible in the State courts, regardless of the previous holding of the State courts on the point. The question here is whether the the facts in this case bring it within the holding of Mapp v. Ohio.

The testimony of Officer Caldwell detailed the course of events. The officers first arrested Holeman about 10 P.M. February 18th, and then arrested Stripling about thirty minutes later. When Holeman was arrested the officers started to search his house, but Mrs. Hole-man refused them entrance until a search warrant could be shown her. The officers relayed the information hack to Conway and claimed that they obtained a search warrant from the Municipal Court in Conway. We are convinced from the evidence that the said search warrant so obtained was entirely void and worthless in every respect. It would serve no useful purpose to detail all of the evidence that impels ns to such conclusion. The fact is that we proceed is this case as though there had been no search warrant of any kind.

As aforesaid, Mrs. Holeman refused to allow a search of the house without a warrant. Armed with the said warrant the officers searched the Holeman house, but they found nothing; so such search, though illegal, obtained no evidence; and thus the search of the Hole-man house passes out of the case. If any evidence had been obtained in the Holeman house wre would promptly hold that such was illegally obtained.

There was the white Ford pick-up truck parked in front of Holeman’s house; and in the truck the officers found a hand drill, some tools, and other miscellaneous articles, all of which wTere later identified by Nelson as having been stolen from him. Were these articles obtained from the truck in violation of the appellants’ constitutional rights against unreasonable search and seizure? There was no entry into a house, building, or dwelling, in order to see these articles in the truck parked out in the open. In 79 C.J.S. p 831, “Searches and Seizures” § 66, cases from various jurisdictions are cited to sustain this text: “The constitutional provisions against unreasonable searches and seizures do not prohibit a search without a search warrant that does not constitute a trespass. Hence the obtaining of information by the eye, where it is not aided by a trespass, does not constitute an unlawful search, since no search is involved, and the use of a flashlight or searchlight in aid of vision does not render it illegal. The constitutional guaranty does not prohibit a seizure without a search vrarrant where the articles sought are disclosed to any one of the senses . . .” Thus the articles in the truck, parked out in the open, wmre seen by the officers and taken; and the constitutional provisions against unreasonable search and seizure afford the appellants no shield against the articles that were in the truck and so seized.

After the confessions of Stripling and Holeman, as heretofore mentioned, warrants were obtained for the arrest of Williams and Turney; and in the early morning of February 19th they were arrested. According to the State’s evidence, Turney told the officers that the stolen property was stored in a trailer near the settlement of Greenbrier in Faulkner County, several miles from Conway. Turney and Williams accompanied the officers to Greenbrier and pointed out the house trailer, and Turney unlocked the door to the trailer; and nearly all of the stolen property was found in the said house trailer. Turney and Williams assisted the officers in taking the articles out of the trailer and loading them into a truck so the articles could be returned to Nelson, the owner. Were the appellants’ constitutional protections against unreasonable search and seizure violated by the officers thus obtaining the articles from the trailer and detailing the evidence concerning same1? Here, there was evidence, not only of waiver and consent, but also of active participation in the search; so there is no merit to the contention of the defendants that their rights against unreasonable search and seizure were violated insofar as concerns the articles in the trailer. In 79 C.J.S. p. 816 et seq., “Searches and Seizures” § 62, there is a discussion of waiver and consent; and the holdings from the various jurisdictions—including the United States Supreme Court—are summarized:

“The constitutional immunity from unreasonable searches and seizures may be waived, as by a voluntary invitation or consent to a search or seizure. Thus individuals may waive their immunity to illegal searches of their persons, possessions, or dwelling houses, as well as to the illegal search of their premises, places of business, and searches and seizures of books, papers, or records. Hence, one who has thus consented to a search cannot thereafter complain of irregularities in the search warrant, or question its sufficiency or the manner of its issuance, since an invitation or consent to the search dispenses with the necessity of a search warrant altogether.

The State’s evidence further showed that after the articles from the house trailer had been recovered, as above mentioned, the officers asked Turney if there were any more stolen articles; and Turney said there was a hot water tank and sink at the home of his father-in-law a short distance away from the house trailer. The party of Turney, Williams, and the officers, proceeded to that house. Turney and Williams went inside and brought out the hot water tank and sink, which were placed in the truck to be returned to Nelson. The officers asked Turney if any other stolen property was in the house; and Turney turned on the light and told the officers they were welcome to look. They went in and found nothing except the connection to the sink, which was returned to Nelson with the other property.

Were the appellants’ constitutional protections against unreasonable search and seizure violated by the entrance into the home of the father-in-law and the obtaining of the hot water tank and sink and connection to the sink”? According to the State’s evidence, Turney and AANlliams voluntarily brought the hot water tank and sink from the house before the officers entered the house, so as to these articles there was no entry of the building by the officers. It is only as regards the connection to the sink that the officers entered the house of the father-in-law, who was not shown to have been present or anywhere in the vicinity or in any wise connected with any part of the case. Only the appellants are objecting to the actions of the officers. What we have said in regard to waiver and consent in the search of the trailer applies with equal force to the articles found in the house of Turney’s father-in-law; so the defendants’ constitutional rights against unreasonable search and seizure were not violated.

IV. Refusal To Exclude Sheriff Minton From The Court Room. The motions for new trial contain these two assignments:

“2. A motion to suppress all evidence illegally obtained, and motion to quash information based on said illegally obtained evidence, was filed by the defendants herein. A hearing on said motion was had preceding the trial. The hearing was on an afternoon the trial began the next morning. At the hearing the Rule was asked for, but the Court permitted the Sheriff of Lonoke County to stay in the Court Room and hear all of the defendants testify as to their illegal arrests, and the unlawful and illegal search and seizure of their premises. The Sheriff was also permitted to remain in the Courtroom the next morning, after both the State and the Defense had asked for the Rule. He remained there until-the Jury was selected and during the opening statements of the Prosecuting Attorney and defense counsel, and the Court excluded him from the room at that point. This was error and in violation of Arkansas law which requires the exclusion of witnesses, when the rule is asked for.

“4. The trial court erred in refusing to exclude a witness for the State, Sheriff Warren Minton, upon the hearing of the motions to suppress evidence, after the rule was asked by defendants, and then permitting Sheriff Warren Minton to testify in the trial of these cases.”

These assignments relate to a ruling at the preliminary hearing on the motion to suppress the evidence, as well as to a ruling made at the time of the jury trial. We find no merit in these assignments. The hearing before the Court on the motion to suppress the evidence was on a day in advance of the jury trial, and, of course, before the jury was selecte.d At the said hearing to suppress the appellants asked for “the rule”; and this occurred :

“THE COURT: I will let you have the rule. What witness do you want to call? The sheriff will have to remain to wait on the court, so what witness do you want to call.

“MR. JONES: We object to any witness remaining in the court room.

“THE COURT: I will permit the sheriff to remain.

“MR. JONES: Note our exceptions to the presence of any witness that will testify.

“THE COURT: All witnesses that are going to testify please stand and raise your right hand and be sworn in. The rule has been asked for so you will have to retire from the court room. Who is your first witness, Mr. Jones?”

Sheriff Minton was not called as a witness by the State or the appellants at the said hearing on the motion to suppress the evidence, so he was not a witness at that hearing, and thus the appellants were not deprived of any of their rights by the fact that the Sheriff waited on the Court at the hearing on the motion to suppress the evidence.

The Court denied the motion to suppress, and the next day the case came for trial. A jury ivas selected, and the following occurred at the beginning of the trial:

“MR. JONES: Let the record show that the state has asked for the rule and witnesses for the State and the defendants are to retire to the witness rooms and Sheriff Minton will be a material witness in this cause and he is to remain in the court room after the rule has been asked for and let the record now reflect at this time we enter our objections on behalf of the defendants for the witness, Sheriff Minton to remain in the court room.

THE COURT: Lonoke County has only one sheriff and this court has got to have a sheriff to wait, on it, to wait on the Court in the calling of witnesses and to keep order in the Court and your motion will he overruled and you may save your exceptions.

“MR. JONES: Note our exceptions.

“MR. DONOVAN: Note the defendants’ exceptions. ’ ’

Then when Sheriff Minton was called as a witness the defendants objected to the Court allowing him to testify, and the following occurred:

“THE COURT: Let the record show I first overruled the motion because the Court stated that it needed some officer to wait on the court, but before any testimony was taken I changed that ruling and Mr. Minton was excluded from the Court room and he heard no testimony from any of the witnesses and the other testimony that he did hear was before the court in the absence of the jury and the jury did not hear any of that testimony as it was before the Court. I will overrule your motion.

“MR. DONOVAN: Note our exceptions.”

The appellants insist that under Act No. 243 of 1955 they had an absolute right to have Sheriff Minton excluded from the trial. Said Act reads:

“AN ACT to Amend Arkansas Statute (1947) § 28-702 Authorizing the Exclusion of Witnesses in Criminal Actions.

“Be It Enacted by the General Assembly of the State of Arkansas:

“SECTION 1. If the accused or his attorney requests it, the judge shall exclude from the court room any witness, including but not limited to the officers of the court, officers of the law and experts not at the time under examination, so that they may not hear the testimony of other witnesses.”

It is fairly evident from the statement made by the Trial Judge, as last quoted above, that shortly after the ruling that Sheriff Minton could remain in the court room the attention of the Court was called to the said Act No. 243 of 1955, and the Court then immediately excluded Sheriff Minton from the court room so that the Sheriff heard none of the testimony. We therefore see that the Sheriff was excluded and heard none of the testimony, and so no error was committed prejudicial to the appellants.

V. Other Rulings Claimed As Error. The appellants assigned as error a number of other rulings of the Trial Court, such as: alleged prejudicial remarks of the Prosecuting Attorney in the argument; refusal to exclude testimony of the witness Bryant; allowing certain officials to testify; remarks of the Trial Judge; and other rulings. To list and discuss all of these assignments would unduly extend this Opinion and serve no useful purpose. It is sufficient to say that we have examined each and all of the assignments and find no reversible error shown in the record.

Affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice

(dissenting). I do not agree with the majority opinion. In my view the majority has, this day effectively emasculated Act 243 of 1955 [Ark. Stat. Ann. § 43-2021 (Supp. 1963)].

From the time of the adoption of the Civil Code until the year 1955, the applicable law on invoking the “Rule” to exclude witnesses from the court room in criminal cases was found in § 658 of the Civil Code [Ark. Stat. Ann. § 28-702 (Repl. 1962)], which reads as follows :

“If cither party requires it, the judge may exclude from the courtroom any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of the other witness.” [Emphasis ours.] ■ Under § 658 of the Civil Code, this court held on numerous occasions that the matter of putting any witness under the “Rule” addressed itself to the sound discretion of the trial court. These decisions were sound, in that the statute in question employed the word “may”, and certainly the employment of “may” clearly left the matter to the sound discretion of the trial judge. Under the cited section of the Civil Code, this court also held that it was not an abuse of discretion to refuse to place officers of the law under the “Rule”. Again, because of the peculiar terminology of the statute in'question, those decisions were sound.

However, in 1955, with the enactment of Act 243, the Legislature radically changed the law with reference to the exclusion of witnesses under the “Rule” in criminal eases. Section 1 of that Act reads as follows:

“If the accused or his attorney requests it, the judge shall exclude from the court room any witness, including lmt not limited to the officers of the court, officers of the km and experts not at the time under examination, so that they may not hear the testimony of other witnesses. [Emphasis ours.]

By the use of the word “shall” in the quoted statute, the Legislature unmistakably declared that the matter of whether witnesses would or would not be excluded from the court room no longer was left to the discretion of the trial court, but that upon demand of the defendant or his counsel, such exclusion became mandatory.

At the beginning of the trial of this case, the appellant sought to suppress certain evidence on the grounds (a) that some of the evidence was obtained by illegal search and seizure, and (b) that certain confessions had been obtained in violation of the defendants’ constitutional rights. A lengthy hearing was held on this motion, and at the beginning of this hearing the appellants unequivocally demanded that Sheriff Minton be excluded from the hearing. They duly saved their exceptions to the court’s refusal to honor their demand. In the course of that hearing there was testimony from a number of witnesses, including the testimony of some of the appellants. Their testimony was concerned with the circumstances under which certain searches were conducted and seizures made, as well as the circumstances under which certain alleged confessions were obtained. While the State called no witnesses in this hearing, a large part of the State’s case in chief, as well as that of the defendants, was concerned with whether any evidence had been obtained as the result of illegal searches and seizures, or any' confession obtained by compulsion. Thus, the sheriff, who was to be a principal State witness, was enabled to learn in great detail the contentions of the defendants with reference to those two vital issues.

The basic error in refusing to exclude Sheriff Min-ton and allowing him to hear the testimony in question is because it was in direct violation of Act 243 of 1955. This Act was undoubtedly passed to prevent perjury and, more importantly, the opportunity to commit perjury. The policy of the law is to remove the opportunity for perjury and thereby to completely eliminate any question as to whether any witness altered his testimony to meet that of any other witness. There is no satisfactory way to, determine what any particular individual may do when armed with knowledge of what other witnesses say. The primary purpose of the “Rule” is to prevent collusive testimony and to elicit the truth from each witness by preventing his being influenced by the testimony of others.

It is not the province of this court or of the trial court to determine questions of policy upon which the Legislature has spoken in such unmistakable terms when there is a valid ground for the exercise of legislative power. This court has not attempted to say that the statute in question is unconstitutional. Obviously, such is not the case. It is impossible to say whether the trial court’s action in allowing the officer of the law to hear the testimony did the appellants any actual damage. However, a substantial right of the appellants was violated. It will not do to speculate as to whether they were or were not prejudiced thereby. If it be said that the sheriff in this case was an honorable man who would not stoop to perjury, my reply is that given by this court on several previous occasions: The answer is, “twill be recorded for a precedent and many an error by the same example will rush into the state. It cannot be.”

The efficacy of the “Rule” as an instrumentality designed to ferret out truth was first demonstrated in the Apocryphal Scriptures in the story of Susanna and the Elders, where Daniel was impelled by the Lord to separate the lustful elders as they testified in pursuit of their iniquitous desire to besmirch the honor and take the life of a virtuous woman. The result was the complete exoneration of Susanna. From that day until this, the “Rule” has been one of the brightest stars in the crown of justice. I could never vote for its abrogation. For the reason stated, I respectfully dissent.

       The Fourth Amendment to the United States Constitution provides :
      “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but uppn probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
      Art. 2, § 15 of the Arkansas Constitution provides:
      “The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.”

       There are many annotations and law review articles concerning Mapp v. Ohio, which was decided June 19, 1961. We list only a few: “Federal constitution as affecting admissibility of evidence obtained by illegal search and seizure,” in 84 A.L.R. 2d 959; “Constitutional Law, Searches and Seizures,” 15 Ark. Law Rev. 445; “Search and Seizure— The Exclusionary Rule and the Question of Standing,” in 17 Ark. Law Rev. 176; “Mapp v. Ohio: Pandora’s Problems for the Prosecutor,” in 111 U. of Pa. Law Rev. 4; “Midnight Welfare Searches and the Social Security Act,” in 72 Yale Law Journal 1347. Distinct from the Mapp case there are a number of other pertinent and informative articles, some of which are: “Propriety or lawfulness of seizure, not incident to arrest, of papers, documents, letters, books and records not described in search warrant,” in 79 A.L.R. 2d 1005; “Lawfulness of nonconsensual search and seizure without warrant prior to arrest,” in 89 A.LR. 2d 715; and “Search and Seizure: a No-Man’s Land in the Criminal Law,” in 49 Cal. Law Rev. 474. Some of our more recent cases involving search and seizure are: Clubb v. State, 203 Ark. 688, 326 S. W. 2d 816; Stewart v. State, 233 Ark. 230, 343 S. W. 2d 568; Burke v. State, 235 Ark. 882, 362 S. W. 2d 695; and Gerard v. State, 237 Ark. 287, 372 S. W. 2d 635 (Opinion delivered November 26, 1963).

       To the same general effect see 47 Am. Jur. p. 547, “Searches and Seizures” § 71.

         To complete the narrative it is proper to add that all of the stolen property was returned to Nelson on February 19th and he identified and inventoried it and receipted the officers for it. Nelson also testified as to admissions in the nature of confessions that some of the appellants made to him; but it is unnecessary to detail all such testimony.

       Since we have not heretofore discussed Act No. 243 of 1955, it is proper to point out:
      (a) That the Act is carried into Ark. Stats, as 5 43-2021 (Supp. 1963).
      (b) The Act does not purport to amend Ark. Stat. Ann. § 43-615 (1947) which relates to exclusion of witnesses at preliminary hearings.
      (c) The caption of the Act No. 243 purports to apply only to criminal trials.
      (d) Even though Ark. Stat. Ann. § 28-702 (Repl. 1962) is a part of the Code of Civil Procedure, nevertheless Ark. Stat. Ann. § 43-2004 (1947) provides that the rules of civil procedure apply generally in trial of criminal cases.
      (e) Whether the language in Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, was a comment on the effect of Act No. 243 of 1955 is not necessary for decision here.
      (f) Generally, see 8 Ark. Law Review 506 and 9 Ark. Law Review 402.


author: George Rose Smith, J.

text:
    Reynolds v. Texarkana Construction Co.
    5-3144
    374 S. W. 2d 818
    Opinion delivered January 27, 1964.
    [Rehearing denied Feb. 24, 1964.]

      Sexton & Morgan, for appellant.

      Shaw, Jones é Slum, for appellee.
   George Rose Smith, J.

This is an action for breach of contract brought by the appellee, Texarkana Construction Company, Inc., a general contractor. Texarkana was the successful bidder upon a school construction job at Fort Smith. Before bidding for the job Texarkana had first obtained bids from several electrical contractors for the electrical work involved. The appellant Reynolds was the low bidder for the electrical subcontract. Texarkana relied upon Reynolds’ figures in computing its own bid for the principal contract.

Before the principal bids were opened Reynolds discovered that he had made a serious error in bidding for the subcontract, in' that he had overlooked the cost of the fixtures that were required. There is some dispute in the testimony, but the circuit court, sitting without a jury, was justified in finding that the Reynolds bid was not so low as to put Texarkana on notice that a mistake had been made, that Reynolds failed to withdraw his offer until two days after the principal bids were opened, and that after the bids were opened it was too late for Texarkana to avoid entering into the principal contract upon the terms stated in its own low bid. See Bailey v. Carter, 211 Ark. 369, 200 S. W. 2d 313.

Upon Reynolds’ refusal to perform the subcontract Texarkana was compelled to employ another electrical contractor at a figure that was $4,997.20 in excess of the Reynolds bid. This appeal is from a judgment awarding Texarkana damages in the sum just stated.

Reynolds contends that he was not bound by his offer to undertake the subcontract, for the reason that he received no consideration for the offer and in fact withdrew it before having been notified of Texarkana’s acceptance.

In this situation, despite the absence of a formal acceptance, the offer by Reynolds became binding under the principle of promissory estoppel. “A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” Rest., Contracts, § 90. We approved this doctrine in Peoples Nat. Bk. of Little Rock v. Linebarger Const. Co., 219 Ark. 11, 240 S. W. 2d 12, noted in 7 Ark. L. Rev. 61. We pointed out that the promise giving rise to the estoppel may be without consideration.

Upon facts similar to those before us the better rule is that the subcontractor is bound to perform upon the terms of his bid. Drennan v. Star Paving Co., Calif., 333 P. 2d 757; Northwestern Engineering Co. v. Ellerman, 69 S. D. 397, 10 N. W. 2d 879. As the court observed in the Ellerman case, the contrary view, adopted in James Baird Co. v. Gimbel Bros., 2d Cir., 64 F. 344, has been rather severely criticized. Justice demands that the loss resulting from the subcontractor’s carelessness should fall upon him who was guilty of the error rather than upon the principal contractor who relied in good faith upon the offer that he received.

As a secondary argument Reynolds contends that his offer was revoked by a counteroffer made by Texarkana. The exact terms of the proposed subcontract had not been discussed by the parties when Reynolds submitted his bid. Later on, after Texarkana had obtained the principal contract, Texarkana sent Reynolds a mimeographed subcontract. Reynolds now says that the proffered agreement contained several clauses, such as a performance bond requirement and daily liquidated damages for delay, that he would never have agreed to. Hence, he insists, the proposal amounted to a counteroffer that constituted a rejection of his bid. Smith v. School Dist. No. 89, 187 Ark. 405, 59 S. W. 2d 1022.

The trial court may well have doubted whether Reynolds would actually have refused the subcontract if it had contained a price sufficient to assure him of a profit. In any event, however, we think the present contention to bo mi afterthought that comes too late. Reynolds rejected the proposed subcontract upon the sole ground that he could not do the work for the price that was offered. His conduct in that respect constituted a waiver of the objections that are now leveled against Texarkana’s proposal.

Affirmed.

Johnson, J., dissents.