author: Ed. F. McFaddin, Associate Justice. Carleton Harris, Chief Justice

text:
    United States v. Pioneer American Ins. Co.
    5-2732
    357 S. W. 2d 653
    Opinion delivered June 4, 1962.

      Louis F. Oberdorfer, Asst. Attorney General, Lee A. Jackson, Joseph Kovner, and David I. Granter, Dept, of Justice, Washington, and Charles M. Conway, U. S. Atty., for appellant.

      Bethell & Pearce and Donald P. Callaway, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal challenges a decree which held that an attorney’s fee in the mortgage foreclosure suit was superior to the federal tax lien. Events and dates are as follows:

1. On May 24, 1956, The Development Company, Inc., for value received, executed a note for $20,000.00 secured by a mortgage on real estate in Sebastian County, Arkansas. The mortgage was duly filed and recorded on June 7, 1956; and, before maturity, the said indebtedness, together with the mortgage, was transferred to the appellee, Pioneer American Insurance Company of Dallas, Texas (hereinafter called “Pioneer”). The note bound the maker, “. . . in the event of default herein and of the placing of this note in the hands of an attorney for collection, or this note is collected through any court proceedings, to pay a reasonable attorney’s fee.” The mortgage securing the note provided that if the grantor should fail to pay any interest or installment of principal when due, then, at the option of the holder, all of the indebtedness secured by the said mortgage should become due for all purposes and there could be foreclosure in a court of competent jurisdiction.

2. By deed recorded March 18, 1958, The Development Company, Inc. sold the mortgaged real estate to Ocie A. Rogers and Florence W. Rogers, his wife, who assumed the mortgage and indebtedness held by Pioneer.

3. The Rogers failed to make the monthly payment in October, 1960, and all subsequent payments; and on March 24, 1961, Pioneer filed foreclosure for the balance due on the debt and interest, and also for a reasonable attorney’s fee. The United States of America was made a defendant in the foreclosure suit because of the federal tax liens that had been filed against Ocie A. Rogers and Florence W. Rogers, the said liens having been filed on the dates and in amounts as follows:

November 29,1960 $1,776.65
January 30, 1961 1,567.14
April 14, 1961 1,288.96
July 17, 1961 1,606.87
October 3, 1961 1,148.69

4. The United States Government, by answer admitted its lien to be subordinate to the mortgage and interest, but claimed its tax lien to be superior to the attorney fee.

On November 11, 1961, the Chancery Court entered a decree of foreclosure which determined priority as between Pioneer and the United States Government, as follows:

“The lien of United States of America is therefore found to be subordinate to the lien of plaintiff, Pioneer American Insurance Company, for all amounts it secures, including principal of the note and interest thereon; . . . and- attorney’s fees fixed by the court; . . .”

The decree in the Chancery Court also contains these statements which are submitted by appellant on this appeal:

“The United States of America has in open court conceded that its lien is subordinate to the lien of plaintiff, Pioneer American Insurance Company, insofar as principal and interest of said plaintiff’s note are concerned, . . . The United States of America claims, however, that its lien is prior to the lien of plaintiff, Pioneer American Insurance Company, so far as same secures . . . attorney’s fee . . •

So much for dates and background information. The United States Government (hereinafter .sometimes called “Appellant”) has appealed from so much of the Chancery decree as adjudged the attorney’s fee allowed Pioneer in the sum of $1,250.00 to be superior to the United States ’ tax lien claims; and the appellant relies on U. S. Code Annotated, Title 26, § 6321 et seq.; and also, inter alia , the following cases: U. S. v. New Britain, 347 U. S. 81, 98 L. Ed. 520, 74 S. Ct. 367; U. S. v. Security Trust & Savings Bank, 340 U. S. 47, 95 L. Ed. 53, 71 S. Ct. 111; U. S. v. Bond (4th Cir.), 279 F. 2d 837 (certiorari denied by U. S. Supreme Court, 364 U. S. 895, 5 L. Ed. 2d 189, 81 S. Ct. 220); U. S. v. Christensen (9th Cir.), 269 F. 2d 624; and In Re New Haven Clock & Watch Co., (2d Cir.), 253 F. 2d 577.

We recognize the power of the United States Government to legislate as to the rights to be accorded its tax liens; and we recognize the power of the United States Supreme Court to be the final arbiter in such cases as this. Nevertheless, we do not consider any of the cases relied on by the appellant as completely decisive of the case at bar because of the matters that we now mention:

(A) Section 68-102 Ark. Stats., which is a part of the Negotiable Instruments Law, states: “The sum payable is a sum certain . . . although it is to be paid: . . . (5) With costs of collection or an attorney’s fee in case payment shall not be made at maturity.”

(B) The Arkansas Statute on attorneys’ fees is Act No. 350 of 1951 (now found in § 68-910 Ark. Stats.), and reads: “A provision in a promissory note for the payment of reasonable attorneys ’ fees, not to exceed ten per cent (10%) of the amount of principal due, plus accrued interest, for services actually rendered in accordance with its terms is enforceable as a contract of indemnity.” (Emphasis supplied.)

(C) The United States Government conceded, in open court below, and conceded in its brief filed in this Court, that its tax lien is subordinate to the mortgage and interest in full to date of payment. In accordance with the foreclosure decree, the mortgaged property was sold, and with the consent of the United States Government, Pioneer received the balance of its principal and all interest due to the date of such payment; and a further sum is now held in the Court to await the result of this litigation.

(D) The default in the payment of the note and mortgage held by Pioneer occurred in October 1960; and it was not until November 1960 that the first tax lien of the United States Government was filed in this case.

We regard Paragraphs (A) to (D) above as, together, being sufficient to distinguish the case at bar from those relied on by the United States Government, as heretofore listed. In the New Britain case, the United States Supreme Court spoke of the requirement that the lien must be “choate”. The recording of the mortgage in 1956 put the world on notice that if there should be a default in payment of the note an attorney’s fee would be added. There was such a default in October 1960 and the holder of the note, immediately upon such default, became entitled to enforce the contract of indemnity; and all of this was prior to any lien filed by the United States Government. So we are definitely of the opinion that the right for attorney’s fee became choate before the United States Government filed its lien claim.

We have carefully studied the case of U. S. v. Bond, and also the Virginia statutes and cases regarding attorneys’ fees in foreclosure of mortgages since the case arose in Virginia; and we fail to find any statute in Virginia that is comparable to our Act. No. 350 of 1951 which says that the contract to pay attorneys’ fee is a contract of indemnity. Such a statute in this State makes a difference between the Bond case and the case at bar.

In the case at bar the United States has conceded all the time that Pioneer is entitled to its full debt and interest to date of payment. Unless Pioneer gets its attorney’s fee, it will not receive its full debt and interest, because the attorney’s fee will have to be paid by Pioneer out of its debt and interest. So when the United States Government concedes — as it must under the adjudicated cases — that the prior mortgage is entitled to payment in full, it cannot expect the mortgagee to leave its attorney unpaid in the face of a statute which says that the attorney’s fee is a contract of indemnity. In 27 Am. Jur. 471, “Indemnity” § 22, in discussing a contract of indemnity against liability, the text quotes the holdings: “In all actions on bonds of indemnity it must appear that the condition of the bond was broken, but, such fact appearing, the obligee is not obliged to wait until he is compelled to discharge the debt; he may bring an action for a full recovery the moment the first breach happens in failing to perform the condition of the bond. (Emphasis supplied.) •

There is another point that favors Pioneer’s claim for attorney fees and which was not discussed in any of the cases cited and relied on by the United States Government in the.case at bar; and that is the matter of unjust enrichment. We find no holding directly in point, but we do find tbe general rules discussed in American Law Institute’s Bestatement of tbe Law, “Bestitution” § 103 et seq. on the topic on “Protection of Property”. Pioneer employed attorneys, foreclosed tbe mortgage, caused a sale of tbe property and its conversion into money. Tbe United States Government seeks to receive tbe money before tbe payment of tbe fee due tbe attorneys, whose efforts brought tbe money into Court. To allow such would violate tbe rules against unjust enrichment. "While attorneys love their work, they do not work entirely for love. Someone must pay tbe fee: Pioneer employed attorneys after a default which bad occurred before tbe United States ever filed a tax lien; and Pioneer proceeded to reduce tbe mortgaged property to cash. Under such facts tbe United States Government should not be allowed to assert a claim superior to tbe payment of tbe fee that Pioneer has paid to cause tbe mortgaged property to be reduced to cash and tbe proceeds readied for distribution, as they now are.

We are firmly of tbe opinion that in a court of equity Pioneer was entitled to prevail for its attorney’s fee; and we therefore affirm tbe decree of tbe Sebastian Chancery Court.

Harris, C. J., dissents.

Carleton Harris, Chief Justice

(Dissenting). I cannot agree with tbe Majority opinion, for I am unable to distinguish the facts in tbe case at bar from those in U. S. v. Bond, 279 F. 2d 837 (C. A. 4th), and In re New Haven Clock & Watch Co., 253 F. 2d 577 (C. A. 2nd). I do not consider that discussion of those cases is necessary, for brief quotations from tbe opinions will suffice to explain my views. In Bond, tbe court said:

“For tbe same reasons, we must subordinate to priority of tbe federal tax liens tbe claim for an attorney fee paid by Perpetual in protection of tbe lien of its mortgage. Tbe fee was incurred long after tbe atatacbment of tbe federal tax lien; and at the time of tbe execution of the mortgage and tbe creation of tbe debt secured thereby, the future existence or amount of such attorney fee, was, at best, speculative and uncertain.”

In New Haven, that court said:

“The Bank sought an order in the District Court including an award of reasonable attorney’s fees because the Clock Company, in the assignment contract, agreed ‘to reimburse the Bank for any and all legal and other expenses incurred in and about the checking, handling and collection of the accounts hereby assigned to the Bank and the preparation and enforcement of any agreement relating thereto.’ The Government, in its oral argument before this Court and in its brief, opposed this claim on the ground that the United States, acting pursuant to Sections 3670 and 3671 of the Internal Revenue Code of 1939, and Sections 6321 and 6322 of the Internal Revenue Code of 1954, 26 U. S. C. §§ 6321, 6322, had a tax lien on the proceeds of the assigned accounts which was prior to the ‘inchoate’ lien of the Bank. Since the amount of the Bank’s lien for attorney’s fees was unknown at the time of the Clock Company’s petition for reorganization, this lien was ‘inchoate’ in the sense used to determine its priority as against a United States tax lien. United States v. City of New Britain, 347 U. S. 81, 84, 74 S. Ct. 367, 98 L. Ed. 520. Thus, the Government’s lien is superior to the claim for attorney’s fees if the United States has complied with the aforementioned provisions of the Internal Revenue Codes and in addition has filed the notice of the lien as required * * Here, there is no dispute that the lien was properly filed and recorded.

The Majority apparently depend in large measure upon the fact that our statute provides that a reasonable attorney’s fee is enforceable as a contract of indemnity. In my view, this provision lends no weight to the position taken by the Majority. The sole question here is when the insurance company’s lien for attorneys’ fees came into existence, i.e., did the attorneys’ fee become choate before the Government filed its lien claim? There was a default on the note in October, 1960, and the Majority state:

“. . . the holder of the note, immediately upon such default, became entitled to enforce the contract of indemnity; and all of this was prior to any lien filed by the United States Government. So we are definitely of the opinion that the right for attorney’s fee became choate before the United States Government filed its lien claim.”

The question, in my view, is not when the company became entitled to enforce the provision for an attorney’s fee, but rather, when it actually did enforce it. I emphatically disagree with the statement of the Majority, for I cannot see that the company was due to add the attorney’s fee immediately upon default. Debtors frequently are a few days late in making payments, but no one would contend that this permits a note holder to add an attorney’s fee. The default in payments on this note occurred in October, but I daresay that if Rogers had subsequently made the October payment, and the other payments, no foreclosure suit would have been filed. Certainly, if delinquent payments had been made and accepted by the company, it would not be contended that Pioneer should be permitted to add an attorney’s fee. In such event, there would have been no occasion to enforce any contract for indemnity, for there would have been no loss.

"While the default occurred in October, 1960, the foreclosure suit was not filed until March, 24, 1961. The claim for attorney’s fee can only be enforced by court action, and though I am primarily of the opinion that an attorney’s fee would not have priority over the Government’s tax liens until it had been definitely fixed by the court, (prior to the recording of the liens) still, if that be error, then certainly I can see no possible priority for the attorney’s fee until a suit is filed asking for the fee. Both the filing of the complaint, and the order fixing the fee, occurred after the recording of the federal tax liens. The note provides:

“The undersigned also agree(s) that in the event of default herein and of the placing of this note in the hands of an attorney for collection, or this note is collected through any court proceedings, to pay a reasonable attorney’s fee.”

Our statute, quoted by the Majority, also provides that the attorney’s fee is enforceable “for services actually rendered.” Therefore, under the language of both the note and the statute, a default in payment is not sufficient to enable the note holder to add an attorney’s fee; services actually rendered by an attorney (generally the filing of a suit) are necessary. But, if it be said that an attorney could render service in trying to collect payments on the nóte before actually instituting any suit, I point out that this record is silent as to when this matter was placed in the hands of the attorneys for Pioneer. There is no evidence that appellee’s attorneys rendered any service relative to collection of the note prior to the filing of the foreclosure complaint.

The Majority state that to allow the Government to recover the amount sought would “violate the rules against unjust enrichment.” I personally find no merit in this contention. The Government has its attorneys, and I am quite sure, wolud have been only too glad to have brought its own proceeding for sale of the property to satisfy the tax liens if such action would have given it priority over appellee.

While I have commented to some extent relative to statements in the Majority opinion, this dissent is primarily based on the holdings in the Bond and New Haven cases, a reading of which persuades me that the lien for attorneys’ fee did not become choate until a definite, fixed amount was allowed by the court. As previously stated, this, of course, was long after the recording of the federal tax liens.

I accordingly feel that the Government should preváil in its contention, and respectfully dissent.

       There were other parties in the foreclosure suit and other lien claims involved; but there is no occasion to give details as to these matters because the only issue on this appeal by the United States Government is, as stated in its brief: “Federal tax liens take priority over a mortgagee’s lien for an attorney’s fee incurred in a foreclosure proceeding, where the federal liens were recorded prior to the time the lien for an attorney’s fee became choate.”

       Both sides have favored us with briefs containing scores of cases, all of which have been studied by us; but we list here those which are most strongly relied on by the appellant, and which have factual situations most similar to the case at bar.

       By Act No. 185 of 1961 Arkansas adopted the Uniform Commercial Code, effective January 1, 1962; and § 85-3-106 Ark. Stats, contains the provision of the Uniform Commercial Code similar to § 68-102 Ark. Stats, above quoted.

        U.S. v. New Britain, 347 U.S. 81, 98 L. Ed. 520, 74 S. Ct. 367.

        U. S. v. Bond (4th Cir.), 279 F. 2d 837.

       Among others, there are: Colley v. Summers, 119 Va. 439, 89 S. E. 906; and Cox v. Hagan, 125 Va. 656, 100 S. E. 666.

       Attorneys for Pioneer have quoted to us the language of the U. S. Supreme Court in the case of Security Mtg. Co. v. Powers, 278 U.S. 149, 49 S. Ct. 84, 73 L. Ed. 236, as regards when a lien becomes choate: “The lien was not inchoate at the time of the adjudication. It had already become perfect when the principal note and the loan deed securing it were given . . . When by the happening of the event the contingent liability becomes absolute, the lien becomes enforceable, though this occurs after the adjudication.”

       The first two federal tax liens were recorded in November, 1960, and January of 1961.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Ark. State Hwy. Comm. v. Ark. P. & L. Co.
    5-2763
    359 S. W. 2d 441
    Opinion delivered June 4, 1962.
    [Rehearing denied September 10, 1962.]

      Dowell Anders and H. Glay Robinson, for appellant.

      House, Holmes, Butler $ Jewell, for appellee.
   George Rose Smith, J.

Pursuant to a franchise granted by the city of North Little Rock in 1944 the appellee Power Company has been paying the city $6,000 a year for the privilege of maintaining its poles, wires, and other equipment in and along the city streets. The State Highway Commission is now engaged in the construction of a superhighway, to be known as a Freeway, that will be about a city block in width and will cross a section of the city’s business district.

Portions of East Second Street and East Third Street will he crossed by the Freeway right of way. A segment of Second Street about a block in length will be obliterated by the new highway, and a similar segment of Third Street will be converted into an underpass.

The Highway Commission requested the Power Company to remove its poles, at its own expense, from those parts of Second and Third Streets that lie in the path of the Freeway. It is contemplated that the company’s wires will cross the new right of way at an elevation of about sixty feet and will be supported on each side of the Freeway by tall poles placed in portions of Second and Third Streets not being taken by the new construction. When the company insisted that the expense of relocating the poles and lines should be borne by the Highway Commission the present action for a declaratory judgment in the matter was filed by the commission. This is an appeal from a judgment holding that the cost of relocation should be paid by the commission.

With respect to the commission’s principal argument the case is indistinguishable from, and is governed by, our decision in a case having the same style as this one, Ark. State Highway Comm. v. Ark. Power & Light Co., 231 Ark. 307, 330 S. W. 2d 77. There the commission was building a controlled access highway near El Dorado and demanded that the Power Company remove its poles from streets and county roads to be crossed and obliterated by the new facility. We held that under its franchise the company had a property right in the maintenance of its equipment in the city streets, so that it was entitled to be compensated for its expense in removing its poles from the new highway right of way.

In seeking to distinguish the earlier case the commission stresses this language in that opinion: “Hence if the city or county should change the right of way of a public street or road, or widen it, or relocate it, the Company could be required to change its poles and wires without compensation so as not to ‘unnecessarily and unreasonably impair or obstruct’ the street. But here it is not a question of requiring the Power Company to relocate its poles so as not to unnecessarily or unreasonably impair or obstruct the traffic. The Commission has demanded that the Company remove its facilities entirely from the right of way.”

The appellant seizes upon the last quoted sentence and insists that here the Power Company is not being required to “remove its facilities entirely from the right of way,” since the new tall poles will be erected upon portions of Second and Third Streets that abut the Freeway. Hence, the agrument goes, there is merely a relocation within the city streets rather than a complete exclusion of the utility company from the public easement.

The fallacy in this contention lies in its assumption that our reference to “the right of way” was intended to mean the existing easement for the city streets (and county roads). It is plain from a study of the opinion as a whole that we were in fact referring to the new right of way for the controlled access highway. The Power Company was being ousted from its occupancy of that right of way, and its right to compensation stemmed from its property right in the streets and roads which were being destroyed by the new facility. In like manner the Company is being excluded in the case at bar from its right to occupy those portions of Second and Third Streets that stand in the path of the Freeway. We cannot sustain the commission’s present contention without overruling the earlier case, which we decline to do.

It is also argued that Ark. Stats. 1947, § 35-301, requires the appellee to remove the poles at its own expense. This statute permits an electric utility company to place its poles and wires (a) along the public highways, (&), along city streets if the permission of the municipal authorities be obtained, and (c) upon private property if the just damages be paid, with a general proviso that none of these installations be made if the ordinary use of the highways, streets, or other facilities would be obstructed. Tbe appellant insists that this statute is broad enough to permit tbe State to require tbe appellee to bear tbe expense that is involved in tbis litigation.

Tbis argument might have merit if tbe Power Company bad erected its poles upon a State highway under clause (a) of tbe statute and was merely being requested to relocate them in connection with a widening or other renovation of tbe highway. See Ark. State Highway Comm. v. Ark. Power & Light Co., supra. That, however, is not the situation. Here tbe company placed its poles along tbe city streets under clause (b) and paid a substantial annual fee for tbe privilege. Under tbe case cited tbe company acquired a property right which could not be taken by tbe State Highway Commission without compensation, any more than would have been tbe case if tbe lines bad been situated upon private property rather than upon tbe city streets. We must therefore conclude that tbe trial court was right in imposing tbe expenses in question upon tbe appellant.

Affirmed.

Bohlinger, J., not participating.

Ward, J., dissents.


author: Paul Ward, Associate Justice.

text:
    Helmerich v. Lowrance.
    5-2593
    359 S. W. 2d 447
    Opinion delivered June 4, 1962.
    [Rehearing denied September 10, 1962.]

      William B. Horkey, Tulsa, Okla., and Jeff Duty, for appellant.

      Little & Enfield, for appellee.
   Paul Ward, Associate Justice.

On June 7,1960 appellees, Dan Simpson and Ed M. Lowrance, filed a suit in chancery court against appellant, Mrs. Cadijah C. Helmerich, to require her to execute to them a deed conveying 940 acres of land in Benton County known as the “River Bend Ranch”. On June 29, 1961, after a lengthy hearing, a decree was entered in favor of appellees wherein the trial court ordered appellant to deliver a deed to appellees upon their paying the required amount within 20 days. (For more details see Helmerich v. Butt, Chancellor, decided September 11, 1961, 233 Ark. 795, 348 S. W. 2d 878.) In appealing from the above decree appellant relies on only one point for a reversal, viz: “The trial court erred in decreeing the right of appellees to redeem . . .”

In order to better understand the reasons which prompted the chancellor’s decision and also the basis of appellant’s contentions of error, it should be helpful to summarize the several transactions and agreements between the parties which culminated in the present litigation, the non-essential facts being omitted.

On January 13, 1954 appellant contracted to sell and appellees agreed to buy the said land for the price of $62,442.40. Appellees paid $6,942.40 in cash and were to pay the balance in yearly installments of $5,000 each, beginning in one year, with interest at-5%. Appellees were placed in possession, and the deed and abstracts were to be held in escrow. Apparently appellees failed or were unable to make the 1955 payment on time and appellant promptly filed suit to foreclose appellees’ equity , in the contract.

Only a few days after the above mentioned suit was filed it appears, that the parties entered into an agreement, or at least expressed a desire,, that they could proceed under the original contract, and appellees agreed, within 6 months, to construct on the land a dairy barn at a cost of about $1,000, to pay back taxes, insurance premiums, and to continue regular payments. However, notwithstanding this agreement, there was a commissioner’s, sale and appellant bought the. property for $30,100. It is, appellee’s testimony that they talked- with appellant, a few days, before, the commissioner’s, sale; that, they asked her to hold up or postpqne the sale; that she refused to- do sq„ but that she agreed to let them pay off the balance djie on the. land over an extended period provided they (.appellees) would pay $5,000 down and, give her a, mortgage on certain cattle.

Following the above, on May 1, 1956, appellant and appellees entered into a lengthy written agreement relative to appellees’ rights to pay the balance due on the land. This written agreement was supplemented by other written agreements and memorándums later. We think it would serve no useful purpose to set out the details of these agreements because we are convinced they all amount to an agreement on the part of appellant to convey the lands in- question to appellees provided they paid the balance due under the original agreement of January 13, 1951 together with accrued costs, taxes, insurance, and accumulated interest. The fact is that appellant does not here challenge the above, or that, appellees did offer to make full payment of the balance of the purchase price. It is, however, as previously stated, appellant’s sole contention that appellees had no right of redemption, but that their-right of redemption was extinguished by the foreclosure- suit brought by appellant in 1955 and later by the commissioner’s sale. We think appellant’s contention is untenable and must be rejected.

A contention similar to the one here made by appellant was rejected in the case of Baugh v. Taylor, 184 Ark. 545, 42 S. W. 2d 992, where the issue arose out of facts similar to the facts in this case. In that case there had also been a foreclosure by the mortgagee (Taylor) and a commissioner’s deed to him. There, also, appellant and appellee entered into an agreement whereby appellant could repurchase the land. The trial court denied appellant the right to redeem under the terms of the agreement. In reversing the trial court, this Court, among other things, said:

“. . . we are convinced that the option contract was in effect a new mortgage. It. had practically all the characteristics of a mortgage. It carried the same indebtedness and bore the same rate of. interest as the old indebtedness and costs of the foreclosure and appellee’s attorney’s fees. * * * The relationship of mortgagor and mortgagee between appellant and appellee Taylor concerning the property in question was created by the option contract, which necessarily let in the equity of redemption after default in payment.”

In the case under consideration the several agreements clearly show the relationship of mortgagor and mortgagee existed between appellant and appellees.

Much the same issue presented here was considered in the case of Jackson v. First National Bank of El Dorado, 195 Ark. 648, 113 S. W. 2d 714, where the mortgagee had foreclosed and then agreed to let the mortgagor repurchase. In upholding the mortgagor’s right to redeem under the agreement this Court quoted with approval from Jones on Mortgages the following:

“ ‘Redemption may be had after foreclosure if the mortgagee or other holder of the title recognizes the mortgage as a continuing obligation. . . . Where the mortgagee either directly or indirectly receives a part of the mortgage debt after the time for redemption has expired, the mortgagor may redeem upon payment of the balance due.’ ”

Following the above, the Court in the Jackson ease made a statement which seems to indicate the basic reason for the conclusion reached, and we think it is partially applicable to the case under consideration. It said:

“In the instant case appellants might have resisted the foreclosure or might have objected to the confirmation, or might have secured other persons to bid.”

In this case it is certainly reasonable to assume, if appellees had not relied upon the several agreements heretofore mentioned, that they would have tried to procure someone besides appellant to bid at the commissioner’s sale, that they would not have erected a dairy barn on the land, and that they would not have sold their cattle in an effort to pay the balance of the purchase price.

It is therefore our conclusion that the trial court’s decree accords with both the law and equity and it is hereby affirmed.

Affirmed.


author: Sam Robinson, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Edens v. State.
    5025
    357 S. W. 2d 641
    Opinion delivered June 4, 1962.

      Gus Gamp, for appellant.

      Frank Holt, Atty. General, by Sam H. Boyce and Dennis W. Horton, Asst. Attys. General, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Edens, was charged with the crime of “overdrafting” by executing and delivering to Raymond Recker a check in the sum of $11,000.00 with the felonious intent to defraud the said Recker, Edens not having sufficient money in the bank to pay the check. He was convicted of the charge, sentenced to six years in the penitentiary, and has appealed. It is important to keep in mind that appellant was not charged with obtaining money by false pretense in violation of Ark. Stats. 41-1901.

Recker is a successful businessman and has dealt in transactions amounting to hundreds of thousands of dollars. He claims that he cannot read or write, but that he can sign his name. His signature shows extraordinarily good penmanship. It is hard to understand how a person could write such a good hand and not be able to read or write anything except his name.

Recker has had many business transactions with Edens. They have been having business dealings with each other over a period of several years. In 1958 Recker borrowed $3,000.00 from Edens and has not repaid it. On January 15, 1960, Recker gave Edens two checks totaling $11,000.00; one for $4,000.00 and the other for $7,000.00. The money was to be used by Edens to purchase a piece of land for Recker. When the $7,000.00 check was presented to the bank by Edens, payment was refused because Recker did not have sufficient funds in the bank to cover the check. It is significant that Recker was not charged with overdrafting. Later, the check was returned to the bank and honored. Edens failed to purchase the real estate.

On May 20,1960, four months later, Recker called on Edens for payment of the $11,000.00 debt that Edens owed him. Edens issued and delivered his check to Recker for the $11,000.00, but because of insufficient funds, the check was not honored by the bank. As a result of giving that check, on October 31, 1960, Edens was charged .with overdrafting.

Subsequent to the giving of the first $11,000.00 check, Edens issued to Recker other $11,000.00 checks for the same purpose, but none of those checks were good. However, on June 24,1960, Edens gave Recker a check in the sum of $4,500.00 as part payment on the debt, and that check was honored and paid.

On October 25, 1960, Edens’ father gave Recker a check for $400.00 as payment of the interest on the debt owed by appellant. The check was not honored, but later the father paid the $400.00 in cash. Just six days after Edens ’ father paid the $400.00 interest on the debt, the felony information was filed charging Edens with overdrafting.

Ark. Stats. 67-720 makes it unlawful to give a bad check in payment of a debt with the intent to defraud. Ark. Stats, 67-722 provides that if the check is dishonored by the bank or drawee, such fact shall be prima facie evidence of the intent to defraud.

The effect of the statute providing that refusal of payment by the drawee of a check or draft is prima facie evidence of the intent to defraud is to cast upon the defendant the burden of going forward with the case. In the case at bar, the refusal of payment by the bank was prima facie evidence of the intent to defraud, but such evidence was not sufficient to take the case to the jury in the face of other evidence in the case. All of the evidence shows that Edens defrauded Recker of nothing by the issuance of the $11,000.00 check. There was no possibility of Edens defrauding Recker of anything by giving the check, and Edens could have had no intention of committing a fraud by giving the check. Prima facie evidence alone is not sufficient to support a verdict where it is contradicted by other evidence explaining the transaction.

In 20 Am. Jnr. 1102, it is said: “While a presumption may relieve a party of the duty of presenting evidence, a prima facie case made in favor of the plaintiff, by a presumption of law, does not need to be overcome by a preponderance of the evidence, or evidence of greater weight, but needs only to be balanced to defeat the plaintiff’s case and require him again to go forward with the proof. . . . After testimony is adduced tending to overcome a presumption, it ceases to have probative force.”

Perhaps in some circumstances one could be guilty of perpetrating a fraud by giving a bad cheek in payment of a debt, but here the evidence shows conclusively that Pecker was not defrauded by Edens giving him a check for $11,000.00. Pecker did not part with one dime at the time of receiving the check or at any time thereafter as a result of having received the check. There is not a scintilla of evidence that Edens intended to defraud Pecker by giving him the check. Edens had become indebted to Pecker in the sum of $11,000.00 several months before the check was issued. There was no possibility that the check could cause Pecker to lose anything except the time it might take to present the worthless check to the bank for payment. Certainly such a small inconvenience is not sufficient to base a six year sentence to the penitentiary.

Surely a verdict of guilty would not be sustained in every instance of a check being dishonored because of insufficient funds. In the case at bar, for instance, would a verdict of guilty be sustained against Pecker because his $7,000.00 check, which he later made good, was dishonored because of insufficient funds when it was first presented to the bank, or would a conviction of appellant’s father be sustained because the $400.00 check he gave Pecker for interest was no good, and later the $400.00 was paid in cash? Of course a verdict of guilty would not be sustained in a case of that kind.

If there was substantial evidence of the intent to defraud other than the mere giving of a bad check, such evidence could be sufficient to sustain a conviction, but here there is absolutely no evidence of the intent to defraud except the giving of the bad check and the presumption raised by such act is completely rebutted by the proven facts.

In St. Louis-San Francisco Railway Co. v. Spencer, 231 Ark. 221, 328 S. W. 2d 858, this Court said: “In the case of Kansas City Southern Railway Co. v. Shane, 225 Ark. 80, 279 S. W. 2d 284, 287, this statement was made: ‘In construing § 73-1002 above our rule appears to be well settled where an injury is caused by the operation of a railway train a prima facie case of negligence is made against the company operating such train and the burden rests on the company to show that it was not guilty of negligence ’. In that case it was stated that the statute in question creates a presumption or inference of negligence on the part of the railroad company. In the same case, however, the court approved what now appears to be the settled rule of this court to the effect that ‘ The only legal effect of this inference is to cast upon the railway company the duty of producing some evidence to the contrary. When that is done, the inference is at an end, and the question of negligence is one for the jury upon all the evidence.’ ”

In the Spencer case a judgment against the railroad company was reversed and the cause dismissed because there was no evidence of negligence except the statutory presumption. The Court held that the presumption was not sufficient to take the case to the jury in the face of other evidence showing there was no negligence. The same rule applies in the case at bar.

The judgment is reversed, and since the cause appears to have been fully developed, it is dismissed.

McF addin, J., dissents.

Ed. F. McFaddin, Associate Justice,

(Dissenting). I agree that the judgment in this case should be reversed; but I dissent as to the dismissal of the case.

The judgment should he reversed because of Assignment No. 18 in the motion for new trial, which relates to statements made by the Prosecuting Attorney in the final argument to the jury; and some cases holding such statements to require reversal are: Paul v. State, 99 Ark. 558, 139 S. W. 287; Thomas v. State, 107 Ark. 469, 155 S. W. 1165.

However, I am firmly of the opinion that there was a case made for the jury, and the cause should be remanded for a new trial. Even if the Majority considers the evidence offered by the State to be weak (which I do not), nevertheless there was some evidence of guilt offered, and it may be strengthened on a new trial; so the case should be remanded according to such cases as: Reed v. State, 97 Ark. 156, 133 S. W. 604; Johnson v. State, 210 Ark. 881, 197 S. W. 2d 936; Grigson v. State, 221 Ark. 14, 251 S. W. 2d 1021; Anderson v. State, 226 Ark. 498, 290 S. W. 2d 846; and Poole v. State, 234 Ark. (adv. opn.) 593, 353 S. W. 2d 359. Each of these cases involved violation of the criminal laws, and is ruling here. "With due deference to my associates on the 'Court, I must nevertheless state that the Majority Opinion seems to me to indicate that this Court is acting as an appellate jury in this case and bringing in a verdict of “Not Guilty”; whereas I contend this Court should remand the case for a new trial, as was done in each of the five cases just cited above.

Now, I desire to go further and discuss (I) the statute under which the appellant was prosecuted; and (II) some of the evidence presented by the State.

I. The Law Under Which Appellant Was Prosecuted. Appellant was tried and convicted of violating the “Arkansas Hot Check Law,” which is Act No. 241 of 1959. Even though the law may have been changed, the appellant is tried under the law applicable at the time of the offense, the date of which is stated to be May 20, 1960. The germane portion of Section 2 of the Act 241 reads:

“It shall be unlawful for any person ... to make payment of any pre-existing debt or other obligation of whatsoever form or nature, or for any other purpose, to make or draw or utter or deliver, with intent to defraud, any check, draft or order, for the payment of money, upon any bank, . . . knowing at the time of such making, drawing, uttering or delivering, that the maker, or drawer, has not sufficient funds in, or on deposit with, such bank . . . for the payment of such check . . . and all other checks . . . upon such funds then outstanding.”

The germane portion of Section 4 of the Act No. 241 of 1959 reads:

“As against the maker, or drawer thereof, the making, drawing, uttering or delivering of a check, draft or order, payment of which is refused by the drawee, shall be prima facie evidence of intent to defraud . . .” Thus, the giving of a “hot” check to pay a previous indebtedness is an offense; and when the bank refuses payment on the check, such fact is “prima facie evidence of intent to defraud.” That is what the statute says; and the Majority Opinion does not even intimate that such statute is unconstitutional.

II. The Evidence Against Appellant. With the law stated as above, I turn now to the evidence: Arnold Edens was an officer in a corporation called “United Enterprises, Inc.” in Paragould, Arkansas; and Raymond Recker was an individual who lived in Walnut Ridge, in Lawrence County, Arkansas. Edens was the “moving spirit,” or general manager of the United Enterprises, Inc.; and Edens and Recker had been acquainted for several years. In January 1960 Recker approached Edens to see if United Enterprises could purchase for Recker a particular 160 acres of land; and Edens required Recker to deposit with United Enterprises the sum of $11,000.00 as the proposed purchase price of said lands which United would seek to purchase for Recker. A receipt of $11,000.00 was issued to Raymond C. Recker, which stated: “For deposit in full, 160 A Bovine Land, subject to approval of R. C. Recker.” This receipt on the United Enterprises’ form, was signed by Arnold Edens, dated January 15, 1960, and was introduced in evidence.

United Enterprises did not acquire the land for Recker and he demanded the return of his money; but the United Enterprises had used Recker’s money for some other purpose not disclosed; and, finally, on May 20, 1960, Arnold Edens, appellant here, issued his personal check to Raymond Recker for $11,000.00, drawn on The Security Bank & Trust Company of Paragould, Arkansas. It was clearly established that Edens never had over $1,000.00 in his account in The Security Bank & Trust Company of Paragould at any time. When the bank refused to pay the $11,000.00 check, Edens, attempted to give Recker other checks and to delay matters as long as possible.

Did Edens intend to defraud Recker? Edens and his company received $11,000.00 of Recker’s money on January 15, 1960; then Edens toyed along with Recker for months by giving’ him a check on May 20, 1960 for $11,000.00 and by issuing other checks to further delay matters. Surely the evidence outlined above is sufficient to take the case to the jury and fair-minded men should have an opportunity to decide whether Edens was guilty of an attempt to defraud Recker. Regardless of all that the Majority Opinion said about overcoming presumptions — which I will subsequently mention — I still contend that a case was made for the jury under the proof here offered.

The Majority says, however, that this statutory provision in Section 4 — about the failure of the bank to pay the check being prima facie evidence of intent to defraud — was entirely dissipated by other testimony. Whose testimony? It was the testimony of Edens. He was the witness who tried to explain away the entire transaction and say that he was only doing Becker a favor to give him the check. The law is well established that the testimony of an interested person is never undisputed as a matter of law. Stovall v. Stovall, 228 Ark. 1077, 312 S. W. 2d 337; Lewis v. Lewis, 222 Ark. 743, 262 S. W. 2d 456; Phelps v. Partee, 208 Ark. 212, 185 S. W. 2d 705; and Business Men v. Sanderson, 144 Ark. 271, 222 S. W. 51. So Edens’ testimony stands disputed by the law and the presumption of intent to defraud takes the case to the jury.

Section 4 of the Act No. 241 uses the words, “prima facie evidence.” In 23 C. J. S. 534 “Criminal Law” § 900, the text reads:

“ ‘Prima facie evidence’ is evidence, direct or circumstantial, which indicates to a reasonable person such strong probability of guilt that accused’s denial or explanation is called for, and which standing alone is sufficient to convict him of the offense with which he is charged; but such evidence is not necessarily conclusive and may be rebutted not only by contradictory evidence, but also by evidence so explaining the conditions and circumstances under which the alleged offense was committed as to convince the jury that the person charged is not guilty.” (Emphasis supplied.)

The above quotation says that the prima facie evidence takes the case to the jury; and that is exactly what I believe. The Majority Opinion cites some railroad cases construing a statute on burden of proof. These cases are not in point. There are “disappearing presumptions”, and there are “continuing presumptions”; and I maintain that in the case at bar the Legislature has made the dishonoring of a check prima facie evidence, sufficient to take the case to the jury. But, even if it should be a “disappearing presumption,” still it would require uncontradicted evidence to dissipate the presumption; and the evidence offered by Edens was his own testimony, which certainly is contradicted as a matter of law.

In short, I see no escape from the conclusion that this case should be reversed and remanded for a new trial. Certainly it should not be dismissed.

       The Act No. 241 of 1959 may now be found in §§ 67-719 et seq. Ark. Stats.

       On this matter of “Presumptions” here are some annotations in American Law Reports, for the benefit of any who desire to read them: “Constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another,” 51 A.L.R. 1139, 86 A.L.R. 179, and 162 A.L.R. 495; “Res ipsa loquitur — Burden of proof or evidence,” 59 A.L.R. 486, and 92 A.L.R. 653; “Presumption as Evidence,” 95 A.L.R. 878; “Presumption of innocence as evidence,” 94 A.L.R. 1042, and 34 A.L.R. 938; “Presumption against suicide as evidence,” 103 A.L.R. 185, and 114 A.L.R. 1226; “Directing verdict where based on testimony of party,” 72 A.L.R. 27. See also McCormick on Evidence §'310 et seq.


author: Sam Robinson, Associate Justice.

text:
    Waddell v. State.
    5-2666
    357 S. W. 2d 651
    Opinion delivered June 4, 1962.

      Paul K. Lewis, Jr., for appellant.

      Frank Holt, Atty. General by Dennis W. Horton, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

This action was filed in the County Court of Randolph County alleging that Eula Ray Meeks was pregnant by appellant, Cleo Waddell, Jr. The case was tried, the child having been born in the meantime, and it was the judgment of the Court that appellant is the father. Appellant appealed to the Circuit Court, and there filed a motion that the cause be tried before a jury. The motion was overruled, the case was tried before the Court without a jury, and there was a finding that appellant is the father of the child. A judgment was entered accordingly, and Waddell has appealed.

There is only one issue raised on appeal, and that is whether the Circuit Court erred in denying the appellant a trial by jury. Prior to the year 1955, the Statutes of Arkansas provided for jury trials in bastardy proceedings in the County Court, when requested. Ark. Stats. 34-705. But, by Act 374 of 1955 (Ark. Stats. 34-705, as amended) the right of a jury trial in the County Court was abolished. We now have no statute specifically providing for jury trials in bastardy proceedings in any court.

At common law there was no provision to affiliate a bastard child, but the common law in that respect has been changed by statute. Ark. Stats. 34-702. In 31 Am. Jur. 19, it is said: “Generally, no one has a constitutional right to a trial by jury of any action not so triable when the Constitution was adopted. . . . However, the right exists not only in cases in which it existed at common law and at the time of the adoption of the constitutional provisions preserving it, but it exists in cases substantially similar thereto, in which it would have existed had they been known to the common law.”

The weight of authority is that a party is entitled to a jury trial in a bastardy proceeding when the request for such a trial is made. 7 C. J. 997. Trawick v. Davis, 4 Ala. 328; Stone v. State, ex rel, Milhorn, 33 Ind. 538; Anderson v. State, 42 Okla. 151.

Whether the one charged is the father of the illegitimate child is a question of fact. Ark. Stats. 27-1704 provides: “Issues of law must be tried by the Court. Issues of fact, arising in action by proceedings at law for the recovery of money, or of specific real or personal property, shall be tried by a jury unless a jury trial is waived.” Bastardy is a subject of civil proceedings. State v. Blackburn, 61 Ark. 407, 33 S. W. 529.

This is essentially an action at law for the recovery of money. The appellant is entitled to a jury trial on the issues of fact.

Eeversed and remanded for new trial.


author: Jim Johnson, Associate Justice. George Rose Smith, J.,

text:
    Kaiser v. Price-Fewell, Inc.
    5-2671
    359 S. W. 2d 449
    Opinion delivered June 4, 1962.
    [Rehearing denied September 10, 1962.]

      Warren d Bullion, for appellant.

      Mehaffy, Smith d Williams, by William H. Sutton and B. S. Clark, for appellee.
   Jim Johnson, Associate Justice.

This appeal questions the validity of an injunction against picketing in a labor dispute in North Little Bock. Appellants urge that members of the International Brotherhood of Electrical Workers, Local 295, have been denied their right of peaceful picketing pursuant to a strike directed against appellee. The Chancellor granted the injunction on the ground that the union was picketing for unlawful objectives, first, to obtain a contract with appellee which contains a hiring hall arrangement, and second, for a closed shop. Both of these objectives were found to violate Amendment 34 to the Arkansas Constitution and Act 101 of the Acts of 1947, which is the enabling act for enforcement of Amendment 34.

Suit for injunction was brought by appellee, PriceFewell, Inc., against Paul Kaiser, individually and as Bepresentative of International Brotherhood of Electrical Workers, Local 295, and B. L. Webb who is the International Bepresentative of the Electrical Workers.

In September 1961, representatives of the union served notice on appellee that they represented a majority of its employees and requested that appellee negotiate a collective bargaining agreement with the union. Appellee refused and thereafter 14 of its employees went out on strike. The parties then commenced negotiations and several conferences were held. At one of the conferences the union presented appellee with a proposed basic contract, part of which was a contract termed “Inside Agreement”. This agreement was executed by this union and members of the Ark. Chapter, National Electrical Contractors Association. Article V thereof sets forth a job referral procedure as follows:,

“In the interest of maintaining an efficient system of production in the industry providing for an orderly procedure of referral of applicants for employment, preserving the legitimate interests of the employees in their employment status within the area and eliminating discrimination in employment because of membership or non-membership in the Union, the parties hereto agree to the following system of referral of applicants for employment.
‘ ‘ 1. The Union shall be the sole and exclusive source of referrals of applicants for employment.
“2. The Employer shall have the right to reject any applicant for employment.
‘ ‘ 3. The Union shall select and refer applicants for employment without discrimination against such applicants by reason of membership or non-membership in the Union and such selection and referral shall not be affected in any way by rules, regulations, by-laws, constitutional provisions or any other aspects of obligation of union membership policies or requirements. All such selections and referral shall be in accordance with the following procedure.
“4. The Union shall maintain a register of applicants for employment established on the basis of the groups listed below. Each applicant for employment shall be registered in the highest priority group for which he qualifies.
“GROUP 1: All applicants for employment who have four (4) or more years experience in the trade, are residents of the geographical area constituting the normal construction labor market, have passed a journeyman’s examination given by a duly constituted Local Union of the I. B. E. W. and who have been employed for a period of at least one (1) year in the last four (4) years under a collective bargaining agreement between the parties to this Agreement.
“GROUP II: All applicants for employment who have four (4) or more years’ experience in the trade and who have passed a journeyman’s examination.given by a duly constituted Local Union of the I. B. E. W.
“GROUP III: All applicants for employment who have two (2) or more years’ experience in the trade, are residents of the geographical area constituting the normal construction labor market and who have been employed for at least six (6) months in the last three (3) years in the trade under a collective bargaining agreement between the parties to this Agreement.
“GROUP IV: All applicants for employment who have worked at the trade for more than one (1) year.
“If the registration list is exhausted and the Union is unable to refer applicants for employment to the Employer within forty-eight (48) hours from the time of receiving the Employer’s request, Saturdays, Sundays and Holidays excepted, the Employer shall be free to secure applicants without using the referral procedure, but such applicants if hired, shall have the status of ‘temporary employees’. The Employer shall notify the Business Manager promptly of the names and Social Security numbers of such ‘temporary employees’, and shall replace such ‘temporary employees’ as soon as registered applicants for employment are available under the referral procedure.”

Appellants contend there was no insistence on the part of union negotiators that the referral procedure be incorporated in the basic contract offered appellee. Also, that in any event appellee did not refuse to sign the proposed contract because of the referral procedure, but rather because appellee performed work for non-union general contractors and union organization would prevent appellee from doing business with such contractors. Although the evidence is conflicting on these issues, Mr. E. L. Webb, International Eepresentative of the union, did testify that the referral procedure was a part of the basic contract presented to appellee. As previously pointed out, this same contract has been executed by the Arkansas Chapter of National Electrical Contractors Association and Article III, Section 7-b thereof prevents this union from granting other contractors more favorable terms than those granted to Association members. Section 7-b reads as follows:

“The union agrees that if, during the life of this Agreement, it grants to any Employer in the Electrical Contracting Industry any better terms or conditions than those set forth in this Agreement, such better terms or conditions shall be made available to the Employers under this agreement and the Union shall notify in writing, the Employer of any such concessions * S *

Section 81-203 Ark. Stats, of 1947, Annotated (Section 3 of Act 101 of 1947) the enabling act for enforcement of Amendment 34 provides as follows:

“81-203. Certain Contracts prohibited. — No person, group of persons, firm, corporation, association, or labor organization shall enter into any contract to exclude from employment (1) persons who are members of, or affiliated with, a labor union; (2) persons who are not members of, or who fail or refuse to join or affiliate with, a labor union; and (3) persons who, having joined a labor union, have resigned their membership therein or have been discharged, expelled, or excluded therefrom.”

If an objective of the picketing was to force appellee to execute a contract which has the effect of excluding employees from employment or excluding applicants for such employment because of their refusal to join or affiliate with a labor union, then such picketing violates Amendment 34. On the other hand, if the picket line was established in furtherance of a lawful strike, certainly no objections could be raised because employees in the exercise of free speech had the right to advise the public of their dispute with appellee. Traditionally, one of the objectives of union organization is to obtain higher wages and better working conditions. However, it is the duty of the Court to construe the contract in the light of the evidence adduced and since the voters of Arkansas have seen fit to adopt Amendment 34 and the Legislature enacted Act 101 of 1947 allegedly to prevent discrimination because of failure to join or affiliate with a labor organization, the Court has no alternative but to apply these measures in accordance with the intention thereof.

The Chancellor interpreted the statute as applying not only to persons who are not members of a labor union but also-persons who fail or refuse to affiliate with a labor union. We cannot disagree with this interpretation. The statute reads in part: “* * * or who fail or refuse to Join, or affiliate with a labor union, * * *.” The word “affiliate” apparently is not used here in the same sense as the word “join”. This is made even-more plain by the wording in the statute immediately prior to the above language, which is: “(1) persons who are members of, or affiliated with a “labor union.” In the absence of a showing that a union apprentice or the like is any less a union member than a union journeyman, it clearly appears that the General Assembly did not intend that the word affiliate should have the same meaning as join or to become a member of, otherwise the two words would not have been used in the same sentence. It is a well known principle of statutory construction that words must be construed according to their usually accepted meaning in common language, “for this is the sense in which they must be supposed to have been used by the Legislature.” Hancock v. State, 97 Ark. 38. Consequently, if the referral procedure has the effect of excluding persons from employment who fail or refuse to affiliate with a labor union, then' Amendment 34 and Act 101 are violated.

Applying this reasoning to Article Y of the proposed agreement, we find that Paragraph 1 makes the union the sole and exclusive source of referrals and Paragraph 4 requires that a register of applicants be maintained at the union hall. This means that before a person can be employed by appellee, such person would have to go to the union hall and place his name upon the register. In doing so he is to this extent affiliating himself -with the union because the union is the only source to look to for employment. This affiliation goes even further because such persons must also meet the. conditions set forth in the various groupings before they can be considered for referral. One condition is that before a person can get into Group II he must have passed a journeyman’s examination given by a duly constituted local union of the International Union. Certainly he would have to further affiliate with the union in order to take this examination.

It is common knowledge that in the construction industry a contractor’s work is intermittent. He moves from job to job and between jobs must lay off experienced personnel, many of whom may have worked for him for years as faithful and efficient employees. When a new job is started, this hiring hall arrangement would prevent the contractor from calling these employees directly and requesting them to come back to work. He would be required to call the union hall instead and these faithful employees would be forced to take their place on this referral list along with all the other applicants. They may or may not be referred back to the job with their old employer. In this manner the referral procedure would destroy the very thing that employees traditionally have sought and this is job security. Job security, seniority with an employer, tenure of employment, or by whatever other terminology described or defined, it must be conceded that Amendment No. 34 and Act 101 of 1947, guarantee to the individual worker the opportunity to firmly establish himself in a job without submitting to any form of control outside the normal relationship of employee and employer. This an employee could not do under the proposed contract here questioned. This right of an employee is, or at least should be, just as sacred to a union member as it is to a non-member. Under the proposed contract, union members’ lawful rights (as here outlined) would suffer the same disruption and destruction as would be inflicted upon the non-members. The arrangement here in question therefore appears to be nothing more than an intricate web set up whereby the union can control employment. This control would be exclusive except for the employer’s privilege of rejection. The employer would be subjected to work stoppage based upon breach of contract if he should permanently hire his brother without first referring him through the union hiring hall. No longer could public or private employment agencies or, for that matter, competing unions refer persons directly to an employer for employment. Surely, as argued by appellants, hiring halls maintained by building and construction trade unions could and, no doubt do, serve a beneficial purpose not only for their trades but for the entire industry, and, certainly, they have a perfect right to offer this service, however, to demand by the use of the most powerful weapon at their command (i.e. strike and picket), the right, in effect, to control employment to the exclusion of all others, including the employer, is a service some employees and employers might not be inclined to cherish.

It is well settled in this jurisdiction that picketing to obtain an unlawful objective is grounds for an injunction. In International Association of Machinists, A. F. L. Local 924 v. Goff-McNair Motor Co., 223 Ark. 30, this Court said:

“On the other hand this court has held that the demand by a union that a collective bargaining agreement contain a provision in violation of Amendment . 34 to the Constitution and Act 101 of 1947, coupled with picketing in an attempt to enforce such demand, is grounds for the issuance of an injunction prohibiting such picketing. Self v. Taylor, 217 Ark. 953, 235 S. W. 2d 45; Local No. 802 v. Asimos, 216 Ark. 694, 227 S. W. 2d 154; Lion Oil Co. v. Marsh, 220 Ark. 678, 249 S. W. 2d 569. See also Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 69 S. Ct. 694, 93 L. Ed. 834.”

In Self v. Taylor, 217 Ark. 953, this Court had occasion to deal with an agreement that was found to violate Amendment 34 due to the Union’s announced intention to cancel the contract under a sixty-day notice clause if the employer hired non-union men. The Court then said:

“It was the object of the defendants, in submitting this contract, to compel the plaintiff to operate a closed shop business. He could not afford to sign such a contract, under the laws of the State of Arkansas, because if he permitted union men to work for him he would have to violate the law and dismiss employees because they were not members of the union. It is an ingenious scheme, but it did not work.”

The same principle is applicable here. If appellee had signed the contract, any person thereafter seeking employment with the appellee would either have to join the union or become affiliated with it. The proposed agreement clearly would allow appellants to do by indirection exactly that which they are prohibited by law from doing directly.

It follows, therefore, that under Amendment 34 to the Constitution which was adopted by the electors of Arkansas in 1944, under the enabling statute for this amendment (Act 101 of 1947, Sec. 81-201, et seq., Ark. Stats. 1947) and the decisions of this Court construing these measures, we have no choice but to affirm the Chancellor’s finding that the hiring hall arrangement sought by the union is prohibited by the Constitution and laws of this State. To hold otherwise would substitute our will, by Court decree, for the expressed will of the legislature and the people and render nugatory a portion of our Constitution without authority. Having so determined, we find it unnecessary to reach the issues pertaining to a closed shop.

Accordingly, the injunction granted by the Chancellor herein is affirmed insofar as it prohibits the appellants and those cooperating with them from picketing for the purpose of obtaining a contract containing the matters found objectionable in this opinion. See Youngdahl v. Rainfair, 355 U. S. 131, 2 L. Ed. 2d 151, 78 S. Ct. 206.

Harris, C.J., and George Rose Smith and Ward, JJ., dissent.

George Rose Smith, J.,

dissenting. In the construction industry a contractor must utilize the skills of maiiy specialized craftsmen, such as bricklayers, concrete finisliers, plumbers, electricians, painters, roofers, etc., but most of them work upon a particular job for only a few days or even a few hours. It is plain enough that a small contractor cannot maintain upon his payroll, as full-time employees, all these specialists. Hence it is desirable that some central labor pool be maintained, so that each contractor can call for the various skilled workmen as he needs them. Such an arrangement is not only advantageous to the contractors; it also affords the workmen access to whatever jobs are available in their field. Hence the hiring hall fills a definite need in the building industry. According to this record, the electrical workers ’ union maintains the only existing hiring hall in this craft in Pulaski county. No other agency, public or private, has undertaken to perform this necessary function in the construction business.

The union sought to include in its labor contract a provision for the recognition and continued existence of this hiring hall. The contract was fair on its face, in that it permitted the employer to reject any applicant for employment. Certainly the proposed contract met the standards suggested for such agreements in National Labor Rel. Board v. Mountain Pac. Chap. of Assoc. Gen. Contractors, 9th Cir., 270 F. 2d 425.

It is obviously possible that the hiring hall might be conducted with discrimination, so that non-union electricians would not be given equal opportunities for employment.. But this record contains not a sentence, not a word, not a syllable, of testimony to show that this •hiring hall is to be used as an instrument of discrimination. I am very much afraid that the effect of the majority opinion is to outlaw the hiring hall, a useful device, in all instances, even though the terms of the proposed contract appear to be wholly fair and nondiscriminatory. For these reasons I would reverse the decree.


author: Jim Johnson, Associate Justice.

text:
    Mitchell v. Mitchell.
    5-2688
    357 S. W. 2d 646
    Opinion delivered June 4, 1962.

      Bernard Whetstone, for appellant.

      Spencer & Spencer, for appellee.
   Jim Johnson, Associate Justice.

This is an application by the appellee, Stanley Gr. Mitchell, for a decrease in the amount of alimony which was awarded his former wife in a divorce decree rendered July 21, 1950. From an order suspending future alimony payments conditioned as follows: “Until further orders of. this court; said payments being by this Decree suspended indefinitely and until conditions change to the extent that payments can be resumed,” appellant, Mary Myrtle Mitchell, prosecutes this appeal, arguing only that the court erred in modifying the decree.

In the original divorce decree appellant was awarded alimony in the sum of $50.00 per month, together with $5,500.00 in cash as a settlement of her rights in the property of appellee.

Appellee filed this action to modify the provisions of the decree relating to alimony on April 19, 1961, and contends that there has been such change in conditions since the time of the original decree as to justify the granting of the relief sought.

The original decree recited the grounds for divorce to be three years’ separation and the cause of the separation to be the wrongful conduct of the appellee.

The parties were in their fifties and the parents of two grown children at the time of the divorce. Appellant was unemployed and had no income of any kind from any source; appellee was living in a building which housed a box and crate manufacturing company which he owned; he was single and had minimum living expenses. His income was $3,200.00 per year.

Since the divorce appellant has never remarried and lives alone. She took a business course and after about two years was able to obtain a job. At first she made $150.00 per month, she has had raises since then and for the past two years she has earned a gross of $235.00 per month, with take-home pay of $185.00 to $188.00 per month. Her $5,500.00 settlement has dwindled to $3,022.00. She lives in a rented house and owns no automobile. She is 63 years of age and suffers from arthritis in her hands, which are vital to her employment. Even though there was some evidence to the contrary, appellant testified that her income was insufficient to pay all her living expenses.

Within about a year following the divorce appellee remarried. His living expenses at the time of the hearing on the petition to modify were around $250.00 per month. He admitted to reporting for the year 1960 (last year preceding modification) taxable income in the amount of $3,276.76. He owned, among other things, a $30,000.00 apartment house; a partnership in some stripper oil wells and a vending machine which produced $725.00 per year.

To minimize this rather substantial financial picture, appellee introduced some evidence indicating that his prospects for future income were less favorable than they had been in the past and that he was at the time of the trial suffering financial difficulties. Because of the nature and extent of these difficulties we agree with the Chancellor that appellee is entitled to some relief. However, in weighing the equities of the whole case before us on trial de novo, we find that the proof of changed conditions is insufficient to warrant a suspension of the full alimony payments. In our view, a $25.00 per month reduction in the alimony payments is the most than can be justified by appellee’s proof of changed conditions. The Chancellor’s order will accordingly he modified to fix appellant’s monthly alimony at $25.00, with appellee to pay the cost. See Haney v. Haney, 235 Ark. 60, 357 S. W. 2d 19.


text:
    Buckner v. Prairie County Bank.
    5-2715
    359 S. W. 2d 443
    Opinion delivered June 4, 1962.
    [Rehearing denied September 10, 1962.]

      Chas. A. Walls, Jr., for appellant.

      John D. Thweatt and Moses, McClellan, Arnold,. Owen <& McDermott, by Wayne W. Owen, for appellee..
   Jim Johnson, Associate Justice.

This appeal involves two cases. Actions were brought by the Prairie County Bank upon two separate notes in the Circuit Court of Prairie County. Both actions were transferred to Chancery Court where they were tried as one.

In the first case, appellee, Prairie County Bank, filed suit on the 15th day of September, 1959, against Conley E. House to recover upon a note. The note, dated December 28, 1957, was in the sum of $4,000.00. House, in his answer, alleged by cross-complaint that he was not the real party in interest and that the note was a means used by BucTon Construction Company, a. partnership composed of Charles Buckner and Jerry J. Screeton, to pay obligations of the partnership. That he was not the real party and that Jerry J. Screeton and Charles Buckner, the partnership, was the real party to the note and that the note should be reformed to show them as the makers. Jerry J. Screeton, in answering the cross-complaint, denied that it was a partnership debt and alleged that it was a debt incurred by Buckner and that the loan was to Charles Buckner and not to the partnership. Charles Buckner, in his pleading, admitted that the money was borrowed by House for the use and benefit of the partnership, BucTon Construction Company, and alleged that Jerry J. Screeton assumed this liability along with all other obligations of BucTon Construction Company when he purchased Buckner’s interest in the partnership.

In the second case, appellee, Prairie County Bank, filed suit against Charles S. Buckner and Margaret Ann Buckner on the 24th day of March, 1960, upon a note alleged to be due in the amount of $20,000.00. This note was dated the 16th day of December, 1958. The Buckners answered admitting signing the note but denied signing the note as individuals, contending in effect and inter alia that the $20,000.00 loan was an accommodation loan for the sole benefit of the true obligor, BucTon Construction 'Company.

The Buckners filed a cross-complaint with their answer, in which they set out that this was an obligation which had been assumed by Jerry J. Screeton when the partnership was dissolved.

The issues involved in the Prairie County Bank v. House part of the litigation were whether the note signed by House constituted a debt of House or a debt of BucTon Construction Company, with the further issue being if the debt were a partnership debt, then had Jerry J. Screeton assumed this obligation upon the dissolution of the partnership. Another issue raised was one involving a deed given by Buckner to House to hold as security in the event that BucTon Construction Company became insolvent.

The issue in the Prairie County Bank v. Buckner part of the litigation was whether the obligation was one of the partnership or was an obligation for a capital investment in the patnerrship.

After hearing the evidence, the Court found that House was obligated to pay the note to the Prairie County Bank but that the $4,000.00 borrowed was loaned to BucTon Construction Company, a partnership at that time composed of 'Charles S. Buckner and Jerry J. Screeton. The Court further found that Charles S. Buckner and his wife gave to Conley E. House their deed to secure the payment of this obligation and found further that Jerry J. Screeton was primarily liable to the Bank, but that the lands conveyed by the Buckners to House were to be conveyed by House to Screeton and further found that Charles S. Buckner and Margaret Ann Buckner were liable to the Bank on their promissory note in the sum of $20,000.00, and dismissed the cross-complaint of Charles S. Buckner and Margaret Ann Buckner against Jerry J. Screeton, from which judgment Charles S. Buckner and Margaret Ann Buckner have appealed.

The partnership dissolution agreement was preprepared by Jerry J. Screeton and is as follows:

“KNOW ALL MEN BY THESE PRESENTS:
That we, Charles S. Buckner and Margaret Ann Buckner, his wife for and in consideration of the agreement of Jerry J. Screeton to hold us and each of us harmless from all indebtedness of BucTon Construction Company, and East Arkansas Materials Company, and for the further consideration of the sum of One Dollar, cash in hand paid to us by Jerry J. Screeton, receipt of which is hereby acknowledged, do hereby assign, sell, transfer and convey unto the said Jerry J. Screeton all of the right, title, claim and interest we have, or either of us has, in BucTon Construction Company and East Arkansas Materials Company and in all of the assets of said BucTon Construction Company and East Arkansas Materials Company, and I, Charles S. Buckner retire from said BucTon Construction Company and East Arkansas Materials Company.
WITNESS OUR HANDS AND SEALS This 26th day of March, 1959.”

The facts in regard to the House loan as developed at the trial are basically not in dispute. House, a Lion Oil Distributor in Hazen, was servicing an account with BucTon Construction Company. BucTon owed Lion Oil Company about $4,000.00 and Lion Oil was threatening to cancel their credit. This was a large account and Mr. House did not desire to have it cancelled. He went to Mr. Buckner, who was then a partner in BucTon Construction Company, and explained the situation to him. Mr. Buckner then made arrangements with Prairie County Bank for a loan for Mr. House, who was in turn advised to go to the bank and sign a note for $4,000.00. The understanding being that BucTon would make the interest payments and would pay the principal sum when it was due. Mr. Hartlieb,- Vice-President of the bank, prepared the note and Mr; House signed it. The money was deposited in House Oil Distributor account and then Mr. House made a check to BucTon Construction Company for $4,000.00 and marked the check loan. Upon receipt of this loan from Mr. House, BucTon Construction Company immediately used the money to pay its debt to Lion Oil Company.

It is clear from the record that Mr. Buckner in arranging this transaction was acting for the partnership under the authority of Section 65-109, Ark. Stats. 1947.

Some 21 months following this transaction Mr. House, in the course of his business as distributor for Lion Oil Company, was called upon by his company to furnish them a financial statement. Mr. House advised Mr. Buckner of his fears that this $4,000.00 indebtedness would adversely affect his financial statement and requested that the note to the bank be paid. It appears that BucTon Construction Company was still suffering financial difficulties and rather than have the partnership at that time attempt to pay the debt, Charles Buckner and his wife, On October 31, 1958, executed to Conley House their deed to a 200 foot lot which they individually owned. The lot is located in Hurt’s Addition to the Town of Hazen. The deed was given for the purpose of offsetting the note on House’s financial statement and for him to hold in the event that BucTon Construction Company became insolvent. The deed was not to be recorded and had not at the time of trial bepn recorded.

On the 26th day of March, 1959, the agreement set forth above was entered into between the Buckners and Sereeton in which, as stated therein, the Buckners transferred to Sereeton all their interest in BucTon Construction Company for the consideration of Sereeton holding them harmless from all indebtedness of the partnership.

The original note was executed on January 21, 1957. BucTon paid the interest on this note on June 3, 1957, and September 13, 1957. Then on December 28, 1957, at the request of Mr. Hartlieb, Mr. House executed the note that is in question to this litigation. The purpose of this note was to renew the old note of January 21, 1957. The interest was paid on this note by BncTon on July 30,1958, December 1,1958, and on April 1,1959. The last payment being made after Mr. Screeton had purchased all of Buckner’s interest in the partnership.

Prom these and other facts disclosed in the record, the trial court properly found the $4,000.00 to be a partnership indebtedness. Jacks v. Greenhaw, 105 Ark. 615, 152 S. W. 160. This being true, the learned chancellor further properly found that the indebtedness was assumed by Screeton under the terms of the partnership dissolution agreement. However, on trial de novo we cannot, from the record, agree that the equitable title to the land deeded by the Buckners to House was ever in BucTon, nor that this land should be deeded to Screeton (the now sole owner of BucTon) upon his payment of the $4,000.00 partnership indebtedness. As we view the matter, the land belonged to Buckner personally. Buckner paid the taxes and had possession of the land. Nowhere in the record is there any evidence that this land was not Buckner’s individually and there is a complete absence of any evidence that BucTon ever had any interest in the land. In fact, Mr. Screeton acknowledged that this land was Mr. Buckner’s individually when he testified that he had tried to buy the land from Mr. Buckner prior to the dissolution of the partnership.

The state of the record being thus, we are, on this phase of the case, impelled to the conclusion that the proof was clear, decisive and convincing that the deed from Buckner to House was, in fact, an equitable mortgage with the equitable title remaining in Buckner. Watkins v. Demby, 192 Ark. 1178, 91 S. W. 2d 251. When Screeton pays the Prairie County Bank the judgment on the $4,000.00 note, as he is obligated to do, then House will convey the lot to the Buckners, as owners.

The facts as developed at the trial relative to the Buckner loan were not nearly so involved as those pertaining to the House loan.

The $20,000.00 note executed by Charles S. Buckner and Margaret Ann Buckner to the Prairie County Bank on December 16, 1958, was, according to the undisputed testimony of all persons, used by the makers to raise $20,000.00 which was placed into the assets of the BucTon Construction Company.

It appears that on December 16, 1958, the BucTon Construction Company was in need of funds in its account in the Prairie County Bank to the extent of approximately $30,000.00 to cover checks which were then in the bank and which could not be paid for lack of funds. Consequently, on that date the sum of $40,000.00 was deposited in the BucTon account.

It is undisputed that appellee Jerry J. Screeton went to the Prairie County Bank and executed a note on this date signing the note in his own personal capacity in the sum of $20,000.00 and deposited this $20,000.00 to the BucTon Construction Company account. Likewise, on the same date, the appellants Buckner went to the Prairie County Bank and executed a note in the sum of $20,000.00 which they deposited in the account of the BucTon Construction Company. It is clear from the evidence that the two notes were made each by the individual in his individual capacity and contemporaneously with the deposit in the BucTon Construction Company account in the Prairie County Bank, each of the partners was given credit in his capital investment account to the extent of $20,000.00 on the partnership books. Buckner claims that the $20,000.00 was a loan to the partnership, rather than an advancement toward capital assets. Prom these and other facts set forth in the record, the trial court found that the $20,000.00 loan was contributed to BucTon Construction Company as a capital asset and was not to be paid by appellee Screeton in furtherance of his partnership dissolution.

It is not only the general rule, but it is well settled in this jurisdiction, that money borrowed on the personal note of one of the partners for a contribution to, or advancement toward, his share of the capital assets of a partnership is not an obligation of the partnership. See Garner v. Hallum, 169 Ark. 295, 273 S. W. 1025; Dixie Cotton Oil Company v. Morris, 79 Ark. 113, 94 S. W. 933; Vol. 40, Am. Jur., § 160 p. 243.

Applying this rule to facts appearing in the record, we cannot, on trial de novo, say that the chancellor’s findings, on this phase of the case, are against the weight of the evidence.

It follows, therefore, on the whole case before us, the decree is reversed only to the extent indicated and the cause is remanded for further proceedings consistent with this opinion.


author: Neill Bohlinger, Associate Justice.

text:
    Ark.-Best Freight System v. Shinn.
    5-2703
    357 S. W. 2d 661
    Opinion delivered June 4, 1962.

      Harper, Harper, Young & Burden, for appellant.

      Tom Gentry, for appellee.
   Neill Bohlinger, Associate Justice.

This is an appeal from a judgment of the Washington Circuit Court affirming an award by the Workmen’s Compensation Commission to William Boyd Shinn, the appellee herein, in connection with a disabling heart attack which the appellee suffered on July 1, 1960, at Fayetteville.

The appellee was an employee of the Arkansas-Best Freight System, Inc., appellant herein, by whom he had been employed for some time as a road driver. The record before us discloses that two days preceding the heart attack of which the appellee complains he had left Fort Smith for Dallas, Texas by way of Muskogee, Oklahoma. He left Fort Smith about 10 o’clock P. M. on June 28th stopped briefly in Muskogee, went to Dallas and left Dallas at 8 P. M. the following day for Little Bock where he rested and slept and then left Little Bock at 7:45 on June 30th for Fayetteville where he arrived about 1 o ’clock A. M. The appellee testified that he did not feel well when he arrived at Fayetteville but he started preparing to leave Fayetteville. It was necessary for him to change trailers and to do so necessitated his disconnecting the fifth wheel and letting down dollies on the trailer.

It appears that the dollies were let down with a hand crank which, on occasion, was hard to crank down, requiring strenuous effort with both hands. After letting down the dollies, he parked the tractor and walked to the terminal because of a pain in his chest. He told a fellow employee of his trouble and sat down for a while and when he began to feel some better he got up and Walked to a drinking fountain whereupon he felt a severe pain in his chest. His distress was apparent to his co-workers who called a doctor and summoned an ambulance and he was taken to the hospital in Fayetteville where he was treated by Dr. LeMon Clark for a week and was then moved to Fort Smith by ambulance where he was treated and is still being treated by a Doctor George Allen.

It further appears that the appellant had suffered a heart attack previously in September, 1959, at which time he was treated by Dr. Allen but he had recovered from that attack and had returned to work in December, 1959, and had no recurrence of the trouble until the attack on July 1, 1960.

Dr. Clark diagnosed Shinn’s condition as myocardial infarction brought about by a coronary occlusion. The appellee filed his claim with the Workmen’s Compensation Commission where it was allowed and the appellant herein appealed that finding to the Washington Circuit Court which affirmed the finding of the Commission and entered judgment in conformity with the finding of the Workmen’s Compensation Commission. On this appeal ■the appellant contends that there was not sufficient competent evidence in the record to warrant making the award and that the award is contrary to the only substantial medical evidence in the record.

We have long held in an unbroken line of cases that the finding of the Workmen’s Compensation Commission have the same binding force and effect as the verdict of a jury or a court sitting as a jury and when supported by substantial evidence such findings will not be disturbed.

This is well set out in the case of Pearson v. Faulkner Radio Service Company, 220 Ark. 368, 247 S. W. 2d 964:

“We have consistently held in a long line of cases that ‘The rule has been clearly established that the binding of the Commission shall have the same binding force and effect as the verdict of a jury, or of a circuit court sitting as a jury, and when supported by substantial evidence, such findings will not be disturbed by the circuit court on appeal to that court or on appeal to this court. ’ * * * The Commission had the right, , just as a jury would have had, to believe or disbelieve the testimony of any witness. See, also, Harris Motor Company v. Pitts, 212 Ark. 145, 205 S. W. 2d 21, and Mechanics Lumber Co. v. Roark, 216 Ark. 242, 224 S. W. 2d 806.”

The medical testimony which must form a large part of the evidence on which the Commission predicated its finding is not long. There were three doctors who testified. Dr. LeMon Clark, who treated the appellee at the hospital in Fayetteville, testified:

“It is my opinion that the effort involved in cranking the dollie undoubtedly contributed to the onset of Mr. Shinn’s heart attack.”

Dr. George Allen, a specialist in internal medicine who had previously treated the appellee, gave the following answers to questions at the hearing.

“Q. My question is, Doctor, is it your opinion that there is a definite relationship between the degree of stress and strain and the occurrence of his condition?
A. Yes.
Q. And is there a definite relationship between his occupation and the occurrence of his condition?
A. As related to this particular incident, yes.
Q. And is it your opinion that there is a causal relationship between Mr. Shinn’s occupation and his present condition
A. Yes.”

Dr. C. T. Chamberlain, called by appellant, testified as follows:

‘ ‘ Since it is well established that such a complication of arteriosclerotic heart disease, namely, acute coronary occlusion or coronary thrombosis, can as readily occur and does occur with the patient at complete rest or even when asleep, I feel that no one specific act of physical exertion can in itself be responsible for the production of a thrombus in a coronary artery except in rare and exceptional instances.”

While Dr. Chamberlain testified that no one specific act of physical exertion can alone be responsible for a thrombosis in a coronary artery, except in rare or exceptional cases, the other two doctors state positively that there was a causative relationship between Mr. Shinn’s occupation and work and his heart attack.

It is now well settled in Arkansas that when an injury or disability is caused by exertion arising from the employment, whether that exertion is normal or extraordinary, the injury is compensable, or in the words of the court in Bryant Stave & Heading Co. v. White, 227 Ark. 147, 296 S. W. 2d 436:

“* * *, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, that an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary.”

Thus the Commission did not have to decide if the exertion of Shinn was unusual or extraordinary, nor did it have to decide if the prior heart attack of Shinn’s was a contributing cause of the injury. The sole question for the Commission was whether Shinn’s actions in undertaking to fulfill his employment duties on July 1, 1960, were the cause or contributing cause of the disabling heart attack. There is ample proof in the testimony of the doctors for the Commission to answer this question in favor of the appellee.

Appellant, in its brief, has made reference to the fact that Doctor Allen, in filling out an insurance form concerning Mr. Shinn, had answered “no” to the following question:

“Was the disability due to any injury or sickness arising out of and during the course of your patient’s occupation or employment?”

This answer is at variance with his sworn testimony and at most it goes to the credibility of Doctor Allen. The Commission might well have elected to give more credence to the testimony of the witness on a witness stand under oath than to an answer that appears upon a questionnaire.

There is ample testimony in the record to support the finding of the Commission and this cause and the judgment thereon in the Washington Circuit Court we do not disturb. We affirm the case.