author: Darrell Hickman, Justice. John A. Fogleman, Justice, Conley Byrd, Justice,

text:
    WARD SCHOOL BUS MANUFACTURING, Inc. et al v. Carthel FOWLER
    76-150
    547 S.W. 2d 394
    Opinion delivered February 22, 1977
    (In Banc)

      Wright, Lindsey & Jennings, for appellants.

      Youngdahh Larrison & Agee, for appellee.
   Darrell Hickman, Justice.

This is a direct appeal of a case from the Workmen’s Compensation Commission under Act 1227, 1975, of the General Assembly. Section 15 of that act provides for an appeal directly to the Supreme Court of Arkansas rather than to the circuit court.

The first consideration of this court is the constitutionality of Act 1227.

The Arkansas Constitution, Art- 7, § '4, sets forth the jurisdiction and powers of the Supreme Court of Arkansas.

The Supreme Court, except in eases otherwise provided by this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the State, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and, other remedial writs, and to hear and determine the same. Its judges shall be conservators of the peace throughout the State, and shall severally have power to issue any of the aforesaid writs.

Section 4, in essence, provides that the Supreme Court of .Arkansas, with certain exceptions, shall have appellate jurisdiction only. Appellate jurisdiction means the review of an order or decree of an inferior court. Ex Parte Levy, 204 Ark. 657, 163 S.W. 2d 529 (1942).

Therefore, one of the questions presented by Act 1227 is whether or not the Workmen’s Compensation Commission is a court. The Workmen’s Compensation Commission is an administrative agency which exercises some quasi-jurisdiction functions and makes awards which are considered judgments. Andrews v. Gross & Janes Tie Company, 214 Ark. 210, 216 S.W. 2d 386 (1948). The Commission cannot enforce its own orders. According to Ark. Stat. Ann. §81-1325 (c) (Repl. 1976), the circuit clerk has to file the order or judgment and thereafter the enforcement is in accordance with the procedures used by circuit courts. It can, of course, be argued that the Commission is a court and, therefore. Act 1227 simply provides for an appeal to the Supreme Court. But the General Assembly does not have the power to create courts. Art. 7, § 1, Constitution of the State of Arkansas, 1874. Also, Jansen v. Blissenbach, 214 Ark. 755, 217 S.W. 2d 849 (1949).

Another question to be resolved is an interpretation of Amendment 26 to the Arkansas Constitution which authorized the General Assembly to provide for Workmen’s Compensation benefits. Amendment 26 provides:

Art. V., Sec. 32. The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made. It shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same. Provided, that otherwise no law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property; and in case of death from such injuries the right of action shall survive, and the General Assembly shall prescribe for whose benefit such action shall be prosecuted.

The question that must be resolved regarding Amendment 26 is: Does Amendment 26 amend Article 7 of the Constitution and thereby permit a direct appeal to the Supreme Court of Arkansas? There is no language in Amendment 26 which explicitly provides for such an appeal. The critical sentence in Amendment 26 which must be considered provides :

It [the General Assembly] shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same.

Means refers to the agency or instrument to attain an end. Method is the way, manner or procedure for doing anything. Forum is, of course, a court or tribunal. There is nothing beyond this language, express or implied, which indicates that the system of courts in Arkansas, as provided for in the Arkansas Constitution, will be changed.

We are sure that the legislative intent for Act 1227 is for a good purpose, and is apparently to provide for a speed-up in processing Workmen’s Compensation cases. But this assumes that all cases must be appealed. Wherever the fault lies in the system, with claims, legislation, the commission, or the courts, the problem cannot be resolved constitutionally by Section 15 of Act 1227. We find that Section 15 of Act 1227, 1975, is unconstitutional and void.

Remanded to the Workmen’s Compensation Commission in order that it may transmit the record to the circuit court of Faulkner County.

Fogleman, J., concurs.

Byrd, J., dissents.

John A. Fogleman, Justice,

concurring.

I thoroughly agree with the majority opinion, but I feel constrained to point out that there is a very definite reason why the dissenting judge’s construction of Amendment 26 is both wrong and unacceptable.

The author of that opinion takes one definition of the word “forum,” incorporates it into the Amendment, and thereby makes of the Workmen’s Compensation Commission something that it is not, i.e., a court, entirely overlooking the fact that “forum” has a different meaning, i.e., a tribunal, a place where a remedy is sought. A court or judicial tribunal is a forum, but a forum is not necessarily a judicial tribunal. Fvcry court is a tribunal but a tribunal is not necessarily a court. Alabam's Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658 (1926). We have many tribunals, forums or places where remedies are sought in Arkansas other than the Workmen’s Compensation Commission which are not courts, even though they “adjudicate claims” or exercise quasi-judicial functions: For example:

State Medical Board. See Brockman v. Arkansas State Medical Board, 229 Ark. 143, 313 S.W. 2d 826.

Public Service Commission. See Southwestern Gas & Electric Co. v. Town of Hatfield, 219 Ark. 515, 243 S.W. 2d 378.

Employment Security Division. See Hickenbottom v. McCain, 207 Ark. 485, 181 S.W. 2d 226, cert. den. 323 U.S. 777, reh. den. 323 U.S. 817.

There are dozens of others, but these serve to point up the flaw in the dissenter’s reasoning that a forum for adjudicating claims is a court. In rejecting just such an argument and holding that New Jersey’s Division of Workmen’s Compensation was not a court, and thus its Supreme Court was without jurisdiction to grant an appeal from the division’s “judgment” on certification to the division, that court said:

The failure to comprehend that administrative adjudication is not judicial springs from the erroneous notion that all adjudication is judicial. * * *

Certainly it cannot seriously be argued that such a board, commission or agency is in any sense of the word a court or judicial tribunal.

The powers of the General Assembly are set out in Amendment 26, which amended Art. 5 § 32. Under this amendment, it shall have the power to provide the means, method and forum for adjudicating claims. It is significant that the singular “the forum” is used. Not “the forums.” It is also significant that the power is to provide, not designate. So the power of the General Assembly is to “provide the forum.” And we have said that when it created an administrative tribunal, which acts in a quasi-judicial capacity, it did what it was empowered to do (and all it was empowered to do). In J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S.W. 2d 82, we said:

* * * It thus appears that the lawmaking powers of this state, after great deliberation, have provided the commission as the forum for trying all questions of fact arising in connection with claims under this act and have made its findings conclusive and binding, in the absence of fraud, if there be sufficient competent evidence to warrant the making of the finding. It is also expressly enacted that there be no review in court except on questions of law.

Putting aside for a moment the meaning of the word forum in Amendment 26, when we look at what the General Assembly did in the exercise of its power “to provide the forum for adjudicating claims arising under . . . laws” prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made,” we see very clearly that it did not create a court. We have clearly held that the Workmen’s Compensation Commission is an administrative agency, not a court, even though it exercises quasi-judicial functions and its awards are in the nature of judgments. Andrews v. Gross & Janes Tie Co., 214 Ark. 210, 216 S.W. 2d 386; Davis v. Arkansas Best Freight System, Inc., 239 Ark. 632, 393 S.W. 2d 237, 17 ALR 3d 986; DuraCraft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W. 2d 562.

Not only is the commission not a court, it really could not be. One of the indicia in determining whether or not a tribunal, or forum, for that matter, is a court, is its power to enforce its own orders. See South Atlantic S.S. Co. of Delaware v. Tutson. 139 Fla. 405, 190 S. 675 (1939); State v. Cannon, 206 Wis. 374, 240 N.W. 441 (1932).

As pointed out in the majority opinion the Workmen’s Compensation Commission does not have this power. Ark. Stat. Ann. § 81-1325 (c) (Repl. 1976) provides:

Enforcement of order or award. If any employer fails to comply with a final compensation order or award, any beneficiary of such order or award, or the Commission, may file a certified copy of the said order or award in the office of the circuit clerk of any county in this State where any property of the employer may be found, whereupon the circuit clerk shall enter the said order or award in the judgment record of said county and the said order or award so recorded shall be a judgment and lien as are judgments of the circuit court, and enforceable as such.

In Cannon, it was pointed out that a court, in the constitutional sense, is a government institution known to the common law which possesses inherent powers, characterizing it as a court and distinguishing it from all other institutions. Among the powers mentioned was the power to enforce its own orders.

'f’he Workmen’s Compensation Commission has no inherent powers, those attributes so essential to a “court.” Parker v. Industrial Commission of Utah, 66 Utah 256, 241 P. 362 (1925). See also, Michelson v. Industrial Commission, 375 Ill. 462, 31 N.E. 2d 940 (1941). In Arkansas, the commission’s powers and jurisdiction are determined by and derived from the Workmen’s Compensation Law. Maxcy v. John F. Beasley Construction Co., 228 Ark. 253, 306 S.W. 2d 849.

For other holdings that a Workmen’s Compensation Commission, such as that created by our act, is an administrative agency, not a court, and that it is not vested with judicial power in a constitutional sense, see: Kelly v. Howard, 233 Mo. App. 474, 123 S.W. 2d 584 (1938); DeMay v. Liberty Foundry Co., 327 Mo. 495, 37 S.W. 2d 640 (1931); Carnahan Oil & Refining Co. v. Miller, 232 Ky. 78, 22 S.W. 2d 430 (1929); National Biscuit Company v. Martin, 225 Ga. 198, 167 S.E. 2d 140 (1969); Ahmed's Case, 278 Mass. 180, 179 N.E. 684, 79 ALR 669 (1932); Carroll Shershun’s Case, 286 Mass. 379, 190 N.E. 595 (1934); Liquid Carbonic Co. v. Industrial Commission, 352 Ill. 405, 186 N.E. 140, 87 ALR 770 (1933); Borgnis v. Falk Co., 147 Wis. 327, 133 N.W. 209, 37 LRA (ns 489) (1911); Alabam's Freight Co. v. Hunt, 29 Ariz. 419, 242 P. 658 (1926); Schivartz v. Mount Vernon-Woodberry Mills, 206 S.C. 227, 33 S.E. 2d 517 (1945); Heavener v. Town of Lincolnton, 202 N.C. 400, 162 S.E. 909, app. dism. 287 U.S. 672, 53 S. Ct. 4, 77 L. Ed. 579 (1932); Hunter v. Colfax Consol. Coal Co., 175 Iowa 245, 154 N.W. 1037 (1915); Traders & General Insurance Co. v. Lincecum. Tex. Civ. App., 126 S.W. 2d 692 (1939); Commercial Casualty Insurance Co. v. Hilton, 126 Tex. 497, 87 S.W. 2d 1081 (1935); Russell v. Johnson, 220 Ind. 649, 46 N.E. 2d 219 (1943); Warren v. Indiana Telephone Co., 217 Ind. 93, 26 N.E. 2d 399 (1940).

But the real reason that the dissenter’s construction of Amendment 26 is both unacceptable and wrong, is that the (ieneral Assembly does not have the power to create a court; and no power to create a court for adjudicating workmen’s compensation claims exists under our constitution unless it is given by Amendment 26. As previously pointed out, the (ieneral Assembly was, significantly, given the power to provide the forum, not designate it, or choose it. As pointed out in the majority opinion and hereinabove the power of the (ieneral Assembly to create courts is strictly limited. See also, Marley v. Fifty Cases of Whiskey, 216 Ark. 528, 226 S.W. 2d 344; Ex parte King, 141 Ark. 213, 217 S.W. 465. Amendment 26 docs not give the power unless the word “forum” is read to mean “court.” But to do this all rules of constitutional construction must be cast to the winds.

The judicial power is limited by Art. 7 § 1 of the Arkansas Constitution:

Judicial power vested in courts. — The judicial power of the State shall be vested in one Supreme Court, in circuit courts, in county and probate courts, and in justices of the peace. The General Assembly may also vest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and when deemed expedient, may establish separate courts of chancery.

Before the General Assembly could make the commission a court. Amendment 26 must be read to have amended or repealed this section. It certainly does not do so expressly. It purported to be an amendment of Art. 5, § 32 only. It has only been held to have amended that section and § 7 of Art. 2, which secures the right of trial by jury. Young v. Tarlton, 204 Ark. 283, 162 S.W. 2d 477. A change in Art. 7 § 1 which was not under consideration when Amendment 26 was enacted cannot be found unless the terms of the amendment are so inconsistent. that the two cannot stand together. Rankin v. Jones, 224 Ark. 1001, 278 S.W. 2d 646.

The same rules of construction and interpretation governing repeals and amendments of statutes apply with at least equal force to repeals and amendments of constitutional provisions. See McDonald v. Bowen, 250 Ark. 1049, 468 S.W. 2d 765; Shepherd v. City of Little Rock, 183 Ark. 244, 35 S.W. 2d 361; Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279; State v. Jones, 242 Ark. 168, 412 S.W. 2d 284; Faubus v. Kinney, 239 Ark. 443, 389 S.W. 2d 887; Rankin v. Jones, 224 Ark. 1001, 278 S.W. 2d 646; Ferrell v. Keel, 105 Ark. 380, 151 S.W. 269. Repeals by implication are not favored and there is a legal presumption against a repeal. Faubus v. Miles, 237 Ark. 957, 377 S.W. 2d 601.

Amendments of a constitution by implication are no more favored than are repeals. Rankin v. Jones, supra. An implied amendment cannot arise from a supposed legitimate intent in no way expressed, however necessary or proper it may seem to be, and an amendment by implication can occur only when the terms of the later provisions are so repugnant with the earlier one that they cannot stand together. Rankin v. Jones, supra.

It is to be presumed that language has been employed with sufficient precision to convey the intent of the people in adopting an amendment. Carter v. Cain, 179 Ark. 79, 14 S.W. 2d 250.

The courts cannot read words into a constitutional amendment which substantially add to, or take from, it, as it is framed. Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656.

It is the duty of this court to construe constitutional sections so that the instrument as a whole is harmonious if it is possible to do so. Ex parte King, 141 Ark. 213, 217 S.W. 465; Chesshir v. Copeland, 182 Ark. 425, 32 S.W. 2d 301; Carter v. Cain, 179 Ark. 79, 14 S.W. 2d 250. Amendment 26 became a part of the whole constitution for the purpose of uniform construction. See Parkin Printing & Stationery Co. v. Arkansas Printing & Lithographing Co., 234 Ark. 697, 354 S.W. 2d 560.

The constitution must be considered as a whole and to interpret any part of it, we must read it in the light of other provisions relating to the subject. Chesshir v. Copeland, 182 Ark. 425, 32 S.W. 2d 301. In construing an amendment to the constitution, it must be harmonized with all the existing provisions of the constitution, if it is possible to do so. Carter v. Cain, supra. Such construction should be given a constitutional amendment as will, if possible, leave all the other provisions in the constitution unimpaired and in full force. Ferrell v. Keel, 105 Ark. 380, 151 S.W. 269; State v. Donaghey, 106 Ark. 56, 152 S.W. 746; State v. Scott, 9 Ark. 270. An amendment displaces only such provisions of the existing constitution as are found to be inconsistent with it. Hodges v. Dawdy, supra.

An amendment will prevail over an earlier constitutional provision only to the extent to which the latter is necessarily repugnant to the former and there is irreconcilable conflict between the two. Chesshir v. Copeland, 182 Ark. 425, 32 S.W. 2d 301; Townsend v. McDonald, 184 Ark. 273, 42 S.W. 2d 410; Rankin v. Jones, supra; Carter v. Cain, 179 Ark. 79, 14 S.W. 2d 250; Ferrell v. Keel, 105 Ark. 380, 151 S.W. 269; State v. Donaghey, 106 Ark. 56, 152 S.W. 746; Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656. No interpretation of a constitutional amendment should be allowed which would conflict with any other provision of the constitution unless it is absolutely necessary to give effect to the amendment. State v. Donaghey, supra; Ferrell v. Keel, supra; State v. Scott, supra. The purpose of the amendment must be apparent on its face and gathered only from its terms. Rankin v. Jones, 224 Ark. 1001, 278 S.W. 2d 646. See also, Carter v. Cain, 179 Ark. 79, 14 S.W. 2d 250. The meaning of the framers must be gathered from the language used. Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656; State v. Scott, 9 Ark. 270. In determining the intent in framing a constitutional amendment, the court must keep in view the constitution before it was amended, the evil to be remedied by the amendment and the terms of the amendment. Carter v. Cain, supra; Ferrell v. Keel, supra; Jackson v. Madison County, 175 Ark. 826, 300 S.W. 924; State v. Scott, 9 Ark. 270.

The words “ [The General Assembly] shall have power to provide the means, methods, and forum for adjudicating claims arising under said laws, and for securing payment of same” are neither inconsistent with nor repugnant to any of the words of Art. 7, § 1 quoted above. There is no irreconcilable conflict. To the contrary, the two provisions can, and must, be harmonized. Creation of a court was not a matter directly connected with the evils to be remedied by Amendment 26. It would be more accurate to say that it was dissatisfaction with judicial remedies available in and administered by courts that caused the adoption of Amendment 26. See 81 Am. Jur. 2d 699, Workmen’s Compensation § 2; 99 CJS 37, Workmen^ Compensation, § 5; 1 Larson p. 25, et seq. §§ 4.30, 4.40, 4.50, 5.20. In Odom v. Arkansas Pipe and Scrap Material Co., 208 Ark. 678, 187 S.W. 2d 320, we said:

*** Its purpose and effect was to substitute, as to employment embraced within its terms, the liability created by it for any and all liability of the master arising from the death or injury of his servant. “The remedies provided by Act No. 319 of 1939 (Workmen’s Compensation Law) are, unless the employer fails to secure the payment of compensation as required by the Act, exclusive.” Headnote 2, Young v. G.L. Tarlton, supra.

Clearly, creation of a court for adjudication of claims was not a matter directly connected with the evils to be remedied by Amendment 26. Its basic purpose has been considered many times. In International Paper Co. v. Tidwell, 250 Ark. 623, 466 S.W. 2d 488, we spoke to the matter, saying:

Recognized purposes of the act are to improve employer-employee relationships, to insure the security of employees following covered employment by substituting awards for losses sustained by reason of such employment which are more nearly proportionate to the loss and more certain and more satisfactory than former remedies in tort, to ameliorate the condition of disabled workers by shifting a part of the burden of accidents in covered employment to the public in general and to charge to the ultimate consumers, a part of the loss from risks of such employment. ***

When Amendment 26 is harmonized with Art. 7 § 1 of the constitution, “a forum for adjudicating claims” means something other than a court of justice or judicial tribunal, and it does not become a part of the judicial system and is not vested with judicial powers.

Passing now to the assertion that § 15 of Act 1227 of 1975 did no more than confer “appellate jurisdiction only” under Art. 7 § 4, what I have heretofore said about the status of the Workmen’s Compensation Commission applies with equal force. We should have to read no further than Amendment 26 to declare that the General Assembly did not have the power to change the nature of the jurisdiction of the Supreme Court in Arkansas. It had no power to do anything except to provide the forum for adjudicating claims.

When we view the meaning of the words “appellate jurisdiction only” in Art. 7 § 4, the flaw in the reasoning that § 15 of Act 1227 was within the power of the legislature becomes apparent.

Essentially the same problem was presented to the Supreme Court of Kansas as early as 1870. Auditor of State v. A.T.& S.F. Railroad Co., 6 Kan. 500, 7 Am. Rep. 575. A Kansas act provided for an appeal to that court from an appraisal assessment of railroad property by a Board of Appraisers and Assessors. The statute was held unconstitutional because the legislature had no power to confer original jurisdiction on the Supreme Court under constitutional provisions similar to Art. 7, § 4 and Art. 7, § 14 of our constitution, except that the Kansas constitution stated that the Supreme Court should have such appellate jurisdiction as may be provided by law. But the Kansas Supreme Court held that its appellate jurisdiction could only be conferred upon it when the appeal was taken from a decision by a “court” clothed with judicial authority and acting in a judicial capacity. The Kansas court relied heavily upon Judge Story’s Commentaries on the Constitution reciting that appellate jurisdiction necessarily implies that the subject matter has already been instituted and acted upon by some other court whose judgment or proceedings are to be revised, and that the decision from which the appeal is taken must have been made by one clothed with judicial authority and acting in a judicial capacity.

Our constitution seems more restrictive than was that of Kansas. We have construed Art. 7 § 4 to have the same effect and the words in question to have a definite meaning.

The constitution must be construed according to the sense of the terms used and the intention of its authors. State v. Scott, 9 Ark. 270. Since this is the case, we should turn first to the “sense” of the term “appellate jurisdiction.” This is necessary, because, as I have pointed out, this provision must stand unimpaired, unless the terms of Amendment 26 are necessarily repugnant to or in irreconcilable conflict with it and Amendment 26 must, if possible, be harmonized with Art. 7 § 4.

Appellate jurisdiction in the constitution means the review by a superior court of the judgment, order or decree of some inferior court. This was the accepted definition when the constitution was adopted. Ex parte Levy, 204 Ark. 657, 163 S.W. 2d 529. It is not even permissible for the Supreme Court to review the action of a judge as distinguished from a court. Mallett v. Hampton, 94 Ark. 119, 126 S.W. 92. Appellate jurisdiction cannot create a cause. It must be first created and adjudicated by another judicial tribunal. Ft. Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S.W. 481.

The appellate jurisdiction of the Supreme Court of this state does not, nor can it be made to, extend to the proceedings or decision of any officer or tribunal whatever, other than the judicial proceedings or determinations óf some court vested with some portion of the judicial power by or under the authority of the constitution itself. Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54, where this court speaking of the restriction of the Supreme Court’s jurisdiction said:

*** This fundamental law, so far as it relates to the present question, does not, in any respect, differ materially from that clause in the Constitution of the United States, which declares that “the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make;” in commenting upon which, and defining the meaning of the terms “appellate jurisdiction,” as there used, Judge Story in the third volume of his Commentaries on the Constitution, page 626, says “the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted, and does not create that cause in reference to judicial tribunals: an appellate jurisdiction, therefore, necessarily implies that the subject matter has been already instituted in, and acted upon, by some other court. whose judgment or proceedings are to be revised. ***
To operate at all then, under the Constitution of the United States, it is not sufficient that there has been a decision by some officer or department of the United States. It must be by one clothed with judicial authority and acting in a judicial capacity. ***
And, in our opinion, the same language, as it is used in that clause of the Constitution of this State, now under consideration, must receive the same construction, and have the like application given to it as has been given thereto, and used in the Constitution of the States; for they are used in reference to the same object, that is, to define in part the jurisdiction of the Supreme Court, and were adopted by those who framed the Constitution of this State, with a full understanding of their application, as ascertained and defined by the adjudications and commentaries aforesaid; and, therefore, it is reasonable to presume that they were not designed to include any thing more than they are understood and held to embrace by the construction which they had previously received; and it is, therefore, to our minds, manifest that the appellate jurisdiction of this court does not, and under the Constitution can never be made to extend to the proceedings or decision of any officer or tribunal whatever, other than the judicial proceedings or determinations of some court or Justice of the Peace vested with some portion of judicial power by or under the authority of the Constitution itself; *** [Emphasis mine.]

The fact that this case was decided under the Constitution of 1836 is of no consequence. § 4 of Art. 7 to the Constitution of 1874 was taken from § 2 of Art. VI of the Constitution of 1836, in which the jurisdiction of the Supreme Court was defined in language substantially identical with § 4 of our present constitution. Ex parte Levy, 204 Ark. 604, 163 S.W. 2d 82.

State v. Jones, 22 Ark. 331, cited in one of the briefs, is not contrary to this holding. The full sentence in that opinion relating to the identical provision in the Constitution of 1836, is:

*** And what we understand by appellate jurisdiction, is, the right to determine questions raised in an actual case, in its pendency before an inferior tribunal, that the errors of that tribunal may be rectified by such adjudication being made here as should have been made below, or by remanding the case for further proceedings in the court below, with provisions that the party against whom error has been committed, shall be relieved from the consequence of such error, and shall have the benefit of a new trial, or of a legal judgment. [Emphasis mine.]

The 1874 Constitution established a detailed and comprehensive system for the trial and appeal of all cases. See Art, 7. The structure remains the same today, except for appeals from probate courts, as it was then, unless it is changed by § 15 of Act 1227. It is quite clear that prior to the adoption of that act that the jurisdiction of this court was confined to appeals from circuit, chancery and probate courts. Art. 7, §§ 4, 35 (as amended by Amendment 24); Featherstone v. Folbre, 75 Ark. 510, 88 S.W. 554; Amendment 24. It is equally clear that, under our judicial system, appeals from all tribunals inferior to the circuit courts go to the circuit courts and from the circuit courts to this court. Art. 7, § 14, 33, 42, 52; Featherstone v. Folbre, supra.

We have said that this court has no original jurisdiction except that expressly conferred by the constitution and that this jurisdiction cannot be enlarged by the legislature. American Party of Arkansas v. Brandon, 253 Ark. 123, 484 S.W. 2d 881. Of course, it has been expressly held that the extraordinary writs of mandamus, prohibition, certiorari, habeas corpus, etc. may be issued by the Supreme Court only in aid of its appellate jurisdiction. See Featherstone v. Folbre, IS Ark. 510, 88 S.W. 554. Attempts to enlarge upon such use have been rebuffed.

Of course, original jurisdiction is expressly conferred upon this court in certain cases connected with statewide initiative and referendum.

It is crystal clear that the jurisdiction of this court is appellate only and that the constitution even after the adoption of Amendment 26 did not expressly confer original jurisdiction to review the quasi-judicial actions of administrative boards, commissions, agencies or tribunals. The only question is whether Amendment 26 gave this power to the General Assembly.

In approaching this question, we must first consider the nature of judicial review of the action of such an administrative agency.

It can be, and has been, argued that if the General Assembly had not provided for court review then the courts could not have considered workmen’s compensation cases at all, except for questions of due process under the Federal Gonstitution. J. L. Williams and Sons, Inc. v. Smith, 205 Ark. 604, 170 S.W. 2d 82. This argument is probably untenable, unless the exception is a recognition of the type of judicial review always permitted in Arkansas. It has been made quite clear, by our own decisions that the proceedings of a state administrative hoard or tribunal are subject to review on certiorari or other extraordinary writ in the circuit court, a court of general original jurisdiction, when that board acts in a quasi-judicial capacity, even in the absence of a statutory authorization. Hall v. Bledsoe, 126 Ark. 125, 189 S.W. 1041; Howell v. Todhunter, 181 Ark. 250, 25 S.W. 2d 21; Pine Bluff Water & Light Co. v. City of Pine Bluff, 62 Ark. 196, 35 S.W. 227; State v. Railroad Comm., 109 Ark. 100, 158 S.W. 1076. See Parker, Administrative Law in Arkanaas, 4 Ark. Law Rev. 107, 120; Davis, Mandamus to Review Administrative Action in Arkansas, 11 Ark. Law Rev. 351, 352; Bryant, Certiorari in Arkansas, 17 Ark. Law Rev. 163, 169, 172. See also, South Atlantic S.S. Co. of Delaware v. Tutson, 139 Fla. 405, 190 S. 675 (1939) (appellate review of workmen’s compensation cases has since been changed in Florida by constitutional amendment); Warren v. Indiana Telephone Co., 217 Ind. 93, 26 N.E. 2d 399 (1940); U.S. Steel Corp. v. Douglas, 125 Ind. App. 212, 123 N.E. 2d 899 (1955).

It may well be that this court, in stating that there was no right to judicial review of compensation cases absent statutory authorization by the General Assembly in J. L. Williams & Sons, Inc. v. Smith, supra, did not overlook the effect of decisions approving the right of review by mandamus, certiorari, or other extraordinary writ, (see cases cited, supra) but considered that type of review to come within the due process exception. According to Prof. Larson, there is an inherent right to judicial review of questions of law, the destruction of which would be unconstitutional. 3 Larson, Workmen’s Compensation Law 15-339, § 80; see also, Dation v. Ford Motor Co., 314 Mich. 152, 22 N.W. 2d 252 (1946); Russell v. Johnson, 220 Ind. 649, 46 N.E. 2d 219 (1943).

Administrative boards such as a Workmen’s Compensation Commission are subject to the judicial power of the state as provided by the constitution and by statutes that do not violate the constitution, or by mandamus, certiorari or other such procedure. South Atlantic S.S. Co. of Delaware v. Tutson, supra. At any rate, the actions of the Workmen’s Compensation Commission would have been subject to judicial review in the circuit court by utilization of the writs which had been used for that purpose throughout the history of this state.

The power of the General Assembly to provide for “Appeals” from quasi-judicial administrative decisions rests initially upon the power of the courts to issue the extraordinary writs traditionally utilized. Authority for this statement is found in Civil Service Commission of Van Buren v. Matlock, 205 Ark. 286, 168 S.W. 2d 424. Of course, the use of these writs in such situations was based upon the constitutional powers of the circuit courts as the reservoir of all jurisdiction not vested in other courts. Art. 7, § 11; Civil Service Commission of Van Buren v. Matlock, supra. There we said:

*** But the remedy provided by the legislature for one aggrieved, as the appellee was, by an order of the civil service commission after all is simply an opportunity to obtain restoration to his office by a judicial proceeding. Unquestionably the remedies afforded by writ of quo warranto or of certiorari, either of which might have been pursued in the absence of a statutory remedy, are judicial proceedings. The legislature might have provided for the bringing of an original suit in the circuit court in order to afford the aggrieved party judicial redress from an unjust decision of the civil service commission, and the fact that the legislature saw fit to authorize such proceeding by way of appeal from the order of the civil service commission does not make such proceeding any the less a judicial one. Under oür constitution, Article VII, § 11, the circuit court is made the reservoir of all judicial powers not vested elsewhere. The legislature had the right, in authorizing a civil service commission, to vest in the circuit court the power to review judicially, either by way of original proceeding or by way of appeal, the action of the commissiori. ***

Thus, the statute providing for “appeal” from the Workmen’s Compensation Commission is nothing more than a recognition of the right to judicial review in the exercise of the power of the courts to issue these writs. This holding is consistent with the widely accepted rule of law, as will presently be shown.

The appeal provided is a creature of the statute and the use of the word “appeal” does not transform the commission into a judicial tribunal or make the appeal to be one from one judicial tribunal to another; to the contrary it merely denotes review of commission action by a judicial tribunal. Plummer v. Johnson, 61 N.M. 423, 301 P. 2d 529 (1956); Tice v. State Industrial Accident Comm., 183 Or. 593, 195 P. 2d 188 (1948).

It is widely held and recognized that the word “appeal” is a misnomer when used in a statute providing for and governing applications for judicial review of the quasi-judicial actions of administrative boards, commissions and agencies. Appeal of Bridgeport Malleable Iron Co., 86 Conn. 378, 85 A. 580; U.S. Steel Corp. v. Douglas, 125 Ind. App. 212, 123 N.E. 2d 899, and cases cited infra. The use of this word has been said to be misleading. Such an “appeal” has been referred to as a “so-called” appeal, “Amorphous” appeal, etc. See cases cited supra and infra. In no case have I found where the word in this context has been given the meaning technically and properly ascribed to it, i.e., an appeal fron one judicial tribunal to another.

The meaning of the word “appeal,” in the United States, depends upon the particular statute creating it and to determine its precise meaning and effect resort must be had to the general policy of the law and to reasons drawn from the practical consequences of applying one interpretation or another. Vaill v. McPhail, 34 R.I. 361, 83 A. 1075 (1912), 39 LRA 794. The judicial review of the Workmen’s Compensation Commission actions is not an “appeal” at all, even though that terminology is used in the statute, because it is review of the action of an administrative tribunal or agency which performs quasi-judicial functions. See, Parker, Administrative Law in Arkansas, 4 Ark. Law Rev, 107, 122; Davis, Mandamus to Review Administration Action in Arkansas, 11 Ark. Law Rev. 351, 352.

Wherever the question has arisen, the first judicial review of a Workmen’s Compensation Commission, or a like tribunal has been considered as the exercise of original jurisdiction. See cases cited infra. An “appeal” to a court under an act such as ours, is not a judicial case until it is brought to the courts, so it is an original action then, just as it would be if brought by certiorari, injunction or other such writ. South Atlantic S.S. Co. of Delaware v. Tutson, 139 Fla. 405, 190 S. 675 (1939); Stansell v. Marlin, 153 Fla. 421, 14 S. 2d 892 (1943). When an “appeal” from such a tribunal is taken to a court, the case is regarded as originating in that court, insofar as the judicial branch of the government is concerned. South Atlantic S.S. Co. of Delaware v. Tutson, supra. It is an original application of the exercise of its appropriate judicial power. Leszczymski v. Andrew Radel Oyster Co., 102 Conn. 511, 129 A. 539 (1925). Even when such an “appeal” goes to an intermediate appellate court which may constitutionally be invested with original and appellate jurisdiction, it is held that the intermediate court is a court of original jurisdiction insofar as that “appeal” is concerned. Graver Tank & Mfg. Co., Inc. v. Mahar, 238 Ind. 226, 150 N.E. 2d 254; Warren v. Indiana Telephone Co., 217 Ind. 93, 26 N.E. 2d 399 (1940). It has also been held that the Supreme Court, in such a situation cannot take jurisdiction until after there has been a decision in the intermediate appellate court, as the original jurisdiction. Graver Tank & Mfg. Co., Inc. v. Mahar, supra, Warren v. Indiana Telephone Co., supra. Even where the “appeal” in a Workmen’s Compensation case goes to the Supreme Court, it has been held to be an original proceeding and the review is the exercise of original jurisdiction. DeConstantin v. Public Ser vice Commission, 75 W. Va. 32, 83 S.E. 88, LRA 1916 A 329 (1914). In West Virginia, the original jurisdiction in the Supreme Court in Workmen’s Compensation cases is based upon that court’s original jurisdiction in mandamus or prohibition. Poccardi v. Public Service Comm., 75 W. Va. 542, 84 S.E. 242, LRA 1916 C 329 (1915); Saunders v. State Compensation Com’r., 112 W. Va. 212, 164 S.E. 39 (1932).

As noted above, it is quite clear that the same rules of construction applicable to statutes ordinarily apply with equal force to constitutions. Hodge v. Dawdy, 104 Ark. 583, 149 S.W. 656. A well-settled rule of construction, which has been applied to constitutional provisions is that where general terms in one part are inconsistent with more specific or particular provisions in another, the more particular provisions will be given effect as clearer and more definite expressions of the legislative will. Hodges v. Dawdy, supra.

The term “provide the means, methods and forum for adjudicating claims” is general. The term “appellate jurisdiction only” is a very specific and particular provision with a well-defined meaning. If there is any conflict, (and I insist there is none), the general provision must give way to the specific and particular one.

The words of these sections of the constitution are not inconsistent with or repugnant to each other. There is no irreconcilable conflict; the two provisions are readily reconcilable, and must be harmonized. When this is done the provision as to appellate jurisdiction remains in the constitution unaffected. This is only logical when appellate jurisdiction is only by appeal from a court or judicial tribunal and when the nature of judicial review of the Workmen’s Compensation Commission is recognized for all that it can ever be, i.e., an original action in the court which has superintending control of all inferior tribunals and is the reservoir of all jurisdiction not assigned to other courts.

Judicial review of the adjudication of claims for compensation was not a matter directly connected with the evils to be remedied by Amendment 26.

It is worthy of note that the Court of Appeals of Georgia, an intermediate appellate court, held that an act of the General Assembly of that state providing for a direct appeal to that court from an order or award of the Workmen’s Compensation Board was unconstitutional as an attempt to enlarge the jurisdiction of that court. An important consideration in reaching that result was that the State Board of Workmen’s Compensation was not a court but was an administrative agency with only those powers and duties given it by statute. Baggett Transportation Co. v. Barnes, 108 Ga. App. 68, 132 S.E. 2d 229 (1963). As previously noted, the same result was reached for essentially the same reasons in Mulhearn v. Federal Shipbuilding in Dry Dock Co., 2 N.J. 356, 66 A. 2d 726.

The powers of the General Assembly to alter the structure of the judicial system is very limited. It can vest such jurisdiction as deemed necessary in courts of common pleas and municipal corporation courts, and when deemed expedient, establish courts of chancery. Art. 7, § 1. It may provide for the consolidation of chancery and probate courts. Art. 7, § 34 (as amended by Amendment 24).

The Legislature cannot add to or take from the jurisdiction vested in the Supreme Court by the Constitution. Harding v. State, 94 Ark. 65, 126 S.W. 2d 90; Ft. Smith Light and Traction Co. v. Bourland, 160 Ark. 1, 254 S.W. 481.

It cannot confer original jurisdiction on this court. Ft. Smith Light and Traction Co. v. Bourland, supra.

It cannot enlarge the original jurisdiction. American Party of Arkansas v. Brandon, 253 Ark. 123, 484 S.W. 2d 881. If it can require initiation of judicial review in this court, it could under Amendment 26 provide for the filing of claims in this court originally. This is an absurdity that might never come to pass. But who, in 1938, when Amendment 26 was adopted would have dreamed that a direct appeal from the Workmen’s Compensation Commission to the Supreme Court of Arkansas would ever have been suggested.

In his argument that the commission is a court the dissenter observed that federal court judgments do not rise to the status of a judgment lien until filed with the circuit clerk in the county where the property is located. Federal court judgments are judgment liens in every jurisdiction excepting those which authorize federal court judgments to be filed, recorded, etc. in the same manner as state court judgments in jurisdictions in which state court judgments must be filed, recorded, etc. 28 U.S.C. § 1962. The federal courts, after their judgments are rendered do not abdicate control of their judgments to the state courts but proceed, by their own powers, to direct execution. 28 U.S.C. § 2001 et seq. But the Workmen’s Compensation Commission cannot do this.

A court, under the common law enforced its judgments by execution without the detailed procedures and systems that have been created by statute. Executions, such as fieri facias, levari facias, extendi facias, venditioni exposas and others were used by justices to enforce their judgments. See Kelley’s Justice Treatise, Fifth Ed., § 153, which states, “The issuing of an execution by the justice is regarded as a judicial act, and involves only that degree of responsibility attending the acts of all judicial officers ...” There is no true parallel between Workmen’s Compensation Commission awards and federal court judgments, because the commission has no power, either inherently or by statute, to enforce its awards.

The Workmen’s Compensation Commission is the forum for adjudicating claims arising under the laws passed pursuant to Amendment 26. It is not a court, but is an administrative agency with quasi-judicial powers, whose actions are subject to limited judicial review, which is not truly an appeal, but is the exercise of original judicial jurisdiction. Attempt to place that jurisdiction in this court is an unconstitutional attempt to confer original jurisdiction on this court. When harmonized with Art. 7 § 4, Amendment 26 does not authorize the General Assembly to enlarge or change the jurisdiction of this court.

I certainly share the dissemer’s concern about delays in judicial review of commission decisions. I do not say that there are no means available to the General Assembly to relieve from “onerous” delays or to expedite the process of judicial review. If the judicial department is unnecessarily contributing to that delay then it behooves the courts and judges to take affirmative steps to minimize the time required for review. Until the passage of Act 1227, appeals in these cases from the circuit court took precedence in this court over all other civil cases, except election contests. See Ark. Stat. Ann. § 81-1325 (b) (Supp. 1975). Such priority should be continued. Perhaps the time for filing transcripts should be shortened. Perhaps the Indiana system of channelling these appeals from the commission to an intermediate court should be adopted, but this would require a constitutional amendment to authorize the creation of such a court.

Still, this court has a duty to uphold the constitution (and cases interpreting it) and the doctrine of separation powers as well. Art. 19, § 20, and Art. 4, Constitution of Arkansas; Sloan v. Sears, Roebuck & Co., 228 Ark. 464, 308 S.W. 2d 802; Moncrief v. Hall, 222 Ark. 570, 262 S.W. 2d 92. It also has a duty to determine whether it has jurisdiction of a case, Arkansas Savings & Loan Board v. Corning Savings & Loan Ass'n., 252 Ark. 264, 478 S.W. 2d 431. These are our first and primary duties. Even though they sometimes weigh heavily, we can neither shirk nor avoid them.

I am authorized to state that the Chief Justice and Madam Justice Roy join in this opinion.

Conley Byrd, Justice,

dissenting.

As I read the majority opinion, it must stand or fall upon the majority’s assertion that “The Workmen’s Compensation Commission is an administrative agency which exercises some quasi-judicial functions and makes awards which are considered judgments.” Since I do not understand how this statement can stand under what I consider to be the clear language of Amendment No. 26, I am setting forth the pertinent language of the Amendment with my emphasis as follows:

“The General Assembly shall have power ... to provide the means, methods, and FORUM FOR ADJUDICATING CLAIMS arising under said laws, and for securing payment of same. . . .”

Now if we ignore for the moment the positional phrase “FOR ADJUDICATING CLAIMS ARISING UNDER SAID LAWS” and concentrate on the word “FORUM” we find it defined by all of the authorities as

follows:

Ballentine’s Law Dictionary 2d Ed.:
“A Court; a tribunal; a jurisdiction; a place where justice is administered; the place of jurisdiction.”
Black’s Law Dictionary, 3rd Ed.:
“A court of justice; or judicial tribunal; a place of jurisdiction; a place where a remedy is sought; a place of litigation.”

Webster’s New International Dictionary, 2d Ed. (Unabridged):

“Tribunal; court; a judicial body or assembly.”

Thus we see that whether we consult legal dictionaries or dictionaries used by just plain ordinary people, the noun “FORUM” is defined as “A court of justice.”

When we look at the prepositional phrase “FOR ADJUDICATING CLAIMS” we note that it is used as an adjective to modify the noun “FORUM” to denote a quality — i.e. to denote that the “FORUM” is to adjudicate the claims arising under the Workmen’s Compensation laws that the General Assembly is empowered to enact. To give emphasis to the pertinent language of Amendment No. 26 which we are here construing, I again quote fromAmendment No. 26 as follows:

“The General Assembly shall have power ... to provide the . . . FORUM FOR ADJUDICATING CLAIMS arising under said laws, and for securing payment of same. ...”

By substituting the definition of the word “FORUM” taken from the dictionaries, supra, we find that Amendment No. 26 would then read:

“The General Assembly shall have power ... to provide the . . . [COURT OF JUSTICE] FOR ADJUDICATING CLAIMS arising under said laws

Now, since l am unable to see the position of the majority, and if they are still of the view that my construction of Amendment No. 26 is overly simple and wrong, I trust that the majority will take the time to demonstrate to the citizens of this State, not as simple as I, why my construction of the Amendment is not acceptable. It must be remembered that a number of ordinary people like myself voted for the adoption of Amendment No. 26.

Under the Arkansas Constitution Art. 7 § 4, it is provided: “The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only . . . under such restrictions as may from time to time be prescribed by law. . . .” The review which is provided for in Ark. Acts 1975, No. 1227, here involved, does not substantially differ from the appellate review that we have already been applying to Workmen’s Compensation cases. Neither do I interpret the majority opinion as holding that the Act, supra, requires us to exercise anything other than appellate jurisdiction.

An example of the restrictive type of construction which the majority is giving to the term “FORUM FOR ADJUDICATING CLAIMS’” can be seen by its reasoning “The Commission cannot enforce its own orders.” I have only to point out that the General Assembly was given plenary power to provide for the payment of said claims — i.e. “The General Assembly shall have power ... to provide the means, methods ... for securing payment of same. ” From that Constitutional authority the General Assembly could have provided that an order of the Workmen’s Compensation Commission would have constituted a judgment lien against the property of the employer. Fortunately for the security of financial transactions, the General Assembly only provided that such an order would only become a lien when it was filed in the circuit clerk’s office — otherwise every abstractor in the state would have been required to keep a complete list of the more than 65,000 claims disposed of by the Commission each year._

Why do I challenge the majority to explain that my sin-pie approach to the construction of Amendment No. 26 is wrong? The reason is that under the appellate procedure adopted for appeals from the Commission prior to Act 1227, an injured workman whose claim is denied by the Commission and the dependents of the workman must languish on welfare while his appeal makes its way through the courts to a final determination. Likewise, when the Commission awards the claimant compensation, the awards are held in abeyance while the employer takes his appeal through the courts. Now, obviously, it would be unjust to deny a right of appeal or to force an employer to make payments while his appeal is pending — consequently, some delay in the appellate process is inevitable. However, the public became aware that some of the Workmen’s Compensation appeals were being unduly delayed in the circuit courts — in some cases for periods in excess of two years. To avoid this unnecessary delay, the General Assembly by Act 501 of 1967 provided that when an appeal from the Commission was held by the circuit court for a period in excess of 60 days “the order or award of the Commission shall be deemed to be affirmed by law and the [circuit] court shall enter its order to that effect.” In Sands v. Albert Pike Motor Hotel, 245 Ark. 755, 434 S.W. 2d 288 (1968), we held Act 501 of 1967 unconstitutional as a legislative encroachment upon the powers of the judiciary. Notwithstanding some rather strong language in the Sands case stressing that due diligence should be given to the handling of Workmen’s Compensation appeals, the General Assembly has again by Act 1227, supra, thought it necessary to expedite the final determination of appeals in Workmen’s Compensation cases. I sincerely suggest that it is to those injured workmen and their dependents who must settle for welfare handouts and mortgage their homes to pay accruing medical bills while their appeals are stalled in the circuit courts, that the majority owe an explanation of why their representatives in the General Assembly cannot give them any relief from such onerous delays.

To take the concurring view, the second sentence of Amendment No. 26 must be treated as complete surplusage. If the Workmen’s Compensation Commission is only an administrative tribunal on the same level of the “State Medical Board,” “Public Service Commission” or the “Employment Security Division,” then those who drafted Amendment No. 26 should have quit after providing:

“The General Assembly shall have power to enact laws prescribing the amount of compensation to be paid by employers for injuries to or death of employees, and to whom said payment shall be made.”

However, the people did not stop at that point with the powers given the General Assembly, but went further and provided:

“It [The General Assembly] shall have power to provide the means, methods, and FORUM for adjudicating claims arising under said laws, and for securing payment of same.”

The Constitution does not even mention the “State Medical Board,” the “Employment Security Division” or the “Public Service Commission,” all of which are set up under the general powers delegated to the General Assembly. Even Art. 17 § 10, with respect to railroads, only provides:

“7’he General Assembly . . . shall provide for the creation of such offices and commissions and VES7' in them such authority as shall be necessary to carry into effect the powers hereby conferred.”

It no where uses the language found in Amendment No. 26, supra.

In reading the concurring views, one would believe that all of the authorities are contrary to my views. However, the cases of Baggett Transportation Co. v. Barnes, 108 Ga. App. 68, 132 S.E. 2d 229 (1963) and Mulhearn v. Federal Shipbuilding in Dry Dock Co., 2 N.J. 356, 66 A. 2d 726 (1949), do not involve a constitutional provision containing language anything like Amendment No. 26.

It looks to me that the majority in construing Amendment No. 26 has approached it in much the same manner that Naaman, the leper, in seeking relief from his malady approached the prophet Elisha, II Kings, Ch. 5 — i.e. they were looking for something prestigious and complicated.

For the reasons stated, I respectfully dissent.

       See State v. Sams, 81 Ark. 39, 98 S.W. 955; McConnell v. Bourland, 175 Ark. 253, 299 S.W. 44; Ex parte Dame, 162 Ark. 382, 259 S.W. 754, where art effort was made to obtain review of action of county court on petition for writ of habeas corpus, bypassing review in the circuit court.

       A similar problem arose with judgments in the Federal Courts and by Federal and State Law those judgments only become a lien when tiled in the office of the clerk of the Circuit Court. See 28 U.S.C. § 1962 and Ark. Stat. Ann. § 29-130 (Repl. 1962).


source: Caselaw Access Project

author: Darrell Hickman, Justice.

license: Public Domain

text:
    Charles A. CHRISTY et ux v. NABHOLZ SUPPLY COMPANY, Inc. et al
    76-265
    546 S.W. 2d 425
    Opinion delivered Feburary 22, 1977
    (Division II)

      Clark, McNeil & Watson, for appellants.

      Brazil & Roberts, for appellees.
   Darrell Hickman, Justice.

The Chancery Court of Faulkner County found that Nabholz Supply Company, Inc. was entitled to a labor and materialmen’s lien judgment for S3,435.98 against a house and property owned by Charles A. Christy and his wife. The general contractor, Jack Harmon Construction Company, Inc., subsequently adjudged bankrupt, authorized the labor and material furnished by Nabholz and did not pay the account in full. Another contractor, Johnie Mode, an excavation contractor, was allowed a lien against the Christy property for S320.00.

Christy appeals and alleges five errors: (1) Nabholz should not have been allowed a lien for labor charges; (2) Nabholz did not prove the amount charged for labor; (3) The chancellor failed to recognize the “electrical contract” and the remainder of an open account, maintained by Nabholz, as two separate claims; (4) The improper finding by the chancellor that the electrical contract and the open account were a continuing charge extended the time for filing liens; and (5) The lower court improperly allowed the Mode lien claim.

All of these allegations of error, except the first one, are without merit because they involve a question of fact. We will not disturb the Findings of a chancellor on appeal regarding a fact question unless the findings are against the preponderance of the evidence. Porter v. Ark. Western Gas, 252 Ark. 958, 482 S.W. 2d 598 (1972). The chancellor’s findings were not against the preponderance of the evidence on these issues.

We disagree with the finding of the trial court allowing Nabholz, a supplier of material, to have a lien for labor. Nabholz did:-not have a fixed^su^i oontraet fiar any part of this job. It supplied materials to the job, and from time to time sent its laborers to the job to perform construction work. There were no liens filed by Nabholz’ laborers. The Arkansas lien statute is strictly construed because it is an extraordinary remedy not available to every merchant or worker. Ark. Stat. Ann. § 51-601 (Repl. 1971). Scott v. LeGrande, 225 Ark. 1022, 287 S.W. 2d 456 (1956). We have held that a laborer can assign his right to a lien, but there was no assignment in this case. Wyatt Lumber & Supply Co. v. Hansen, 201 Ark. 534, 147 S.W. 2d 366 (1940). Nabholz is not without a remedy, because it has a right to proceed against the company or individual who authorized the charges, in this case Harmon Construction Company. The fact that Harmon is bankrupt is, of course, irrelevant to the application of the materialmen and laborers lien law.

It cannot be exactly determined from the record what portion of the judgment granted to Nabholz is labor and labor-related employer expenses, such as social security payments. Therefore, on remand the trial court will determine what the labor and labor-related expenses are and deduct them from the lien judgment granted in this case. In other respects, the Nabholz judgment is affirmed.

We affirm the trial court’s judgment for Johnie Mode. The issue was credibility of the parties and the chancellor found for Mode.

Affirmed in part. Reversed and remanded in part.

We agree. Harris, C.J., and Fogi.eman and Roy, JJ.


text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. George F. CATES
    76-278
    546 S.W. 2d 423
    Opinion delivered February 22, 1977
    (Division I)

      Richard H. Mays, for appellant.

      Brown, Compton & Prewett, by: William /. Prewett, for appellee.
   Darrell Hickman, Justice.

This is an appeal by State Farm Insurance Company from a judgment against it for $5,-000.00 obtained by its insured, George F. Cates. The judgment was for damages covered by the uninsured motorist provision of a State Farm policy.

State Farm alleges four errors on appeal. However, the main issue is an interpretation of the uninsured motorist clause and its application to the facts in this case.

Cates was injured when his vehicle was struck in the rear by a gravel truck driven by Thomas L. Dorathy, an employee of J. T. Allen. Cates suffered damages of at least $20,000.00. Cates, in a separate case, sued Dorathy and Allen, and Allen’s insurance company paid the limits of its policy, $5,-000.00. Louisiana Industries, Inc., who paid Allen for hauling gravel, was joined in the suit. Its insurance company paid Cates $7,500.00, but in the settlement agreement denied that it was the employer of Allen or Dorathy and recited that the settlement was a compromise of a doubtful and disputed claim.

Cates’ insurance with State Farm provided for a maximum of $10,000.00 coverage for personal injury damages resulting from an accident caused by an uninsured vehicle. When State Farm refused to pay Cates, this suit was filed. Cates asked for $5,000.00 plus a penalty and attorney’s fee.

The lower court asked the jury to determine fault, fix damages, and decide if Dorathy, the gravel truck driver, was working as an employee or agent of Louisiana Industries at the time of the accident. The jury found Dorathy at fault, fixed damages at $20,000.00, and found Dorathy was not working as an employee or agent of Louisiana Industries at the time of the accident. The court, based on these findings, granted Cates judgment against State Farm for $5,000.00, plus 12% penalty and $1,500.00 attorney’s fee.

The court properly instructed the jury on the law and the findings of the jury and the court will be affirmed.

State Farm argues on appeal the gravel truck was insured and if not, the payment of $7,500.00 by Louisiana Industries should reduce its liability to zero.

The State Farm policy describes an uninsured vehicle as one not insured to the limits of the Financial Responsibility Law, $10,000.00; or a vehicle which has no insurance “. . . applicable at the time of the accident with respect to any person or organization legally responsible for the use of such vehicle. ...” Obviously there was $5,000.00 insurance on the vehicle, which left $5,000.00 “uninsured” according to Arkansas law. Ark. Stat. Ann. § 66-4003 (Repl. 1966). Therefore, the question is, did Louisiana Industries’ insurance cover the gravel truck? If it did, the truck would be insured. If not, the truck would be uninsured. Since the jury found that Dorathy was not an agent or employee of Louisiana Industries, it follows that Louisiana Industries was not legally responsible for the use of the vehicle. Therefore, the truck was uninsured.

State Farm argues that the jury should have been asked to determine the relationship of J. T. Allen to Louisiana Industries, rather than Dorathy’s relationship. This argument is without merit because Dorathy was using the truck and caused the accident, not J. T. Allen.

State Farm also argues that even if the vehicle was uninsured, the $7,500.00 settlement paid to Cates by Louisiana Industries should reduce State Farm’s liability to zero. The State Farm policy does provide for a reduction of liability. The policy reads that any payment by “. . . any other person or organization jointly or severally liable together with such owner or operator for such bodily injury. ...” will reduce State Farm’s liability. The key word here is “liable.” The jury made a finding that Dorathy, the gravel truck driver, was not working for Louisiana Industries and, therefore, Louisiana Industries was not legally responsible or liable for Dorathv’s actions. See Courson v. Maryland Casualty Company, 475 F. 2d 1030 (8th Cir. 1973).

Finally, State Farm argues the court erred in overruling a motion for summary judgment and preventing the introduction of certain evidence. There was obviously a dispute of a material fact and the motion for summary judgment was properly denied. Southland Ins. v. Northwestern Nat’l. Inc., 255 Ark. 802, 502 S.W. 2d 474 (1973). State Farm offered into evidence some pleadings in the case of Cates v. Allen and Louisiana Industries, and the settlement agreement between Cates and Louisiana Industries. The court ruled in chambers that these pleadings and the settlement agreement should not be before the jury. The court was correct, because the jury needed to decide, without prejudice, the legal relationship between Louisiana Industries and Dorathy.

In summary, Cates received, through his legal efforts, a $7,500.00 settlement from Louisiana Industries’ insurance company. It was determined by a jury that Louisiana Industries was not liable or legally responsible for Dorathy’s actions. Gates should not be penalized for his successful legal efforts, nor should State Farm be absolved of its legal responsibilities under their contract. An additional $500.00 attorney’s fee will be awarded.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Holt, JJ.


author: Carleton Harris, Chief Justice.

text:
    VERSON ALLSTEEL PRESS CO. v. Barbara GARNER and James GARNER
    76-213
    547 S.W. 2d 411
    Opinion delivered February 28, 1977
    (In Banc)
    [Rehearing denied April 4, 1977.]

      Wright, Lindsey & Jennings, for appellant.

      Laser, Sharp, Haley, Toung & Boswell, P.A., for appellees.
   Carleton Harris, Chief Justice.

On July 28, 1972, Barbara Garner, appellee herein, while employed by Ward Supply Division of National Aluminum Corporation in Little Rock, suffered injuries to her left hand, consisting of a loss of her third finger and a loss of use of the fourth and fifth fingers, when the hand was caught between the dies of a “press brake” which she and a co-employee were operating. Suit was instituted against Verson Allsteel Press Company of Dallas, Texas, manufacturer of the press brake, asserting several grounds of negligence, including allegations of failure to install or have installed in the aforementioned press an electrical control system having anti-repeat, interlocking, self-checking, and fail-safe features. After the filing of an Answer by Verson denying liability and the filing of various motions, request for admissions, interrogatories, motions, and other pleadings, the case proceeded to trial, and at the conclusion of appellee’s case, appellant moved for directed verdict, said motion being denied. Evidence was then offered by appellant, and at the conclusion of all the evidence, Verson again moved for a directed verdict, which again was denied. Following the giving of instructions, the jury retired and returned a 9 to 3 verdict for Mrs. Garner in the amount of $50,781.96 and for her husband, for loss of consortium, the sum of $2,000.00. Thereafter, motion for judgment notwithstanding the verdict, and in the alternative, a motion for a new trial was filed by appellant, and was denied by the court. From the judgment in accordance with the jury verdict, appellant brings this appeal. For reversal one point is relied upon:

“THE COURT ERRED IN NOT GRANTING THE APPELLANT’S MOTION FOR A DIRECTED VERDICT IN ITS FAVOR BECAUSE:
A. NO ACT OR OMISSION OR CONDUCT ON THE PART OF THIS APPELLANT WAS A PROXIMATE CAUSE OF ANY DAMAGES SUSTAINED BY THE APPELLEE, AND
B. THERE IS NO EVIDENCE TO ESTABLISH THAT VERSON WAS GUILTY OF NEGLIGENCE.”

It might be well to first examine the manner in which the press brake was operated. As originally manufactured by Verson, the machine was a general purpose press brake, designed to be operated by one person. The machine when shipped was equipped with a foot pedal, connected by mechanical linkage to the clutch and brake. The operator was able to control both speed and tonnage of the ram. To depress the pedal, the operator’s foot had to be lifted 6 1 /2" off the floor. With depression, the clutch was engaged and the brake disengaged. The pedal depressed 2 1 /2-3" caused the ram to operate at full force and speed.

This was not, however, the manner in which the machine was operated at the time of the accident, for it had been drastically altered. Two electrical foot switches and a pneumatic cylinder were installed, with the result that upon depression of both of the foot switches, air was allowed through a valve to a cylinder and automatically caused the press to run at full tonnage and speed. Two operators were required. Accordingly, the machine could hardly be characterized as the same machine which had been sold eight years earlier by appellant to Toll Manufacturing Company. First, the machine had been altered from a general purpose machine to a special purpose machine, and required two operators instead of one. This change meant that the concurrent operation of each station being used was required to place the ram in motion.

A most important change was the installation by National (or Ward) of the two electrical foot switches instead of the mechanical foot pedal. The operation could no longer be controlled by one person (as the machine had been designed), and the ability to vary the speed and pressure of the stroke was completely lost. Nonetheless, it is the view of appellee that Verson was negligent in originally designing, and selling, the machine without a safety device, and that this failure on appellant’s part was a proximate cause of the accident. To substantiate this argument, appellant relies upon the testimony of Mr. Marvin Salzenstein of Chicago, an engineer. Mr. Salzenstein was accepted as an expert in the field of power press and press brake accidents. The witness conducted an investigation of Mrs. Garner’s accident on April 14, 1975, which was, of course, nearly three years after the occurrence. At this time, however, the machine was not in the same condition, nor operated in the same manner, as at the time of the accident, i.e., an electric eye had been installed across the point of operation from one end to the other where the dies would be located. Three hand buttons, any two of which would operate the ram, had been placed on the machine in lieu of the electrical foot switches. The electric eye was a safety device, it appearing that when the beam of light was interrupted, the brake came to a stop. However, Mr. Salzenstein did not consider that this change was made in accordance with established safety engineering practices, because it was adjusted too high. Salzenstein was of the view that appellant should have placed a safety device at the point of operation and that the failure to do so constituted negligence. However, on cross-examination, Salzenstein admitted that at the time the machine was manufactured in 1964, it was not customary in the industry for the manufacturer to equip it with point of operation safeguards. There was no specific safety standard for press brakes either in 1964 when the machine was built, or in 1972 when the accident happened.

The witness was questioned at length relative to standards set forth by the National Safety Council. Though a member of the National Safety Council, Salzenstein did not agree with many of its recommendations (1968). For instance, a quote from Data Sheet 419, Revision A, Press Brakes, provided:

“A foot operated machine should always be used as a single operator machine.”

Salzenstein stated that if there were only one pedal, he would agree; if more than one pedal, then the statement was incorrect. He agreed that the National Safety Council Publication provided:

“Only shop supervisors who have knowledge of the piece parts to be made and the dies to be used can determine what auxiliary handling and safety devices should be used.”

Salzenstein disagreed, stating that the manufacturer of the press could likewise make such a determination, it being his view that the manufacturer of the press knows generally what the press is going to be used for and can provide a general purpose safety device. In general, the witness disagreed with the standards which provided that the responsibility was on the employer to determine the safety device to be used. Salzenstein was asked about a pamphlet entitled “Before It’s Too Late” published by Dries and Crump Manufacturing Company, which he had sent to appellee’s counsel. Salzenstein said that he did not agree with a statement at the top of page 18 in big caps which provided:

“Providing safe and proper working conditions and point of operation devices consistent with the use and operation of the machine are determinations to be made by and the sole responsibility of the user of the machine.”

Nor did he agree with another paragraph which stated:

“The determination as to whether to use mechanical or other safety devices must be made by the user.”

Also called to the attention of the witness was pamphlet No. 11 prepared by Electrodynamics and Telecon Limited in Chicago, which provides:

“The provision of safe and proper working conditions and devices appropriate for the use and operation of the machine and protection of the operator and others are determinations to be made by and are the sole responsibility of the user of the machine.”

Salzenstein did not agree, nor did he agree entirely with .American National Standards institute B-11.1, which provides:

“It shall be the responsibility of the employer to provide and insure the usage of either a point of operation guard or-a properly applied and adjusted point of operation device on every operation performed on a mechanically powered press.”

The witness insisted that it was the responsibility of the manufacturer to provide a protective device for the point of operation. However, we find an interesting statement by Salzenstein. When asked on direct examination to list devices which could be employed on a press brake to prevent an operator’s hand from getting into the point of operation, he mentioned three, describing one as follows:

“One guard would be what we call a pull back device and pull backs operate really from the ram of the press brake, when the ram goes down, there is a cable attached to the ram that goes back overhead and behind the operator and that cable attached to a set of cables to his wrist so everytime the ram goes down the cable pulls back, when the ram goes up, he is then free to put his hand back to the point of operation to remove a part or place a part for production. That is such a device and that would work for one operator.”

He then mentioned two or three other safety devices, but when asked which would be the “safety device of choice with a manual pedal,” replied:

“With a manual pedal, the safety device would be the pull backs because those would automatically work as long as the ram comes down it would tend to pull the operator’s hand out of the point of operation.”

Let it be remembered that the press brake was originally manufactured and distributed with a manual pedal. Subsequently, when asked what would be the “safety device of choice if the press had been manufactured and sold with the retrofitted electrical system,” the witness replied:

“I would then choose the two hand push button control as being the general type of safety device that you can install on a press brake.”

In other words, according to the witness, the preferred safety device for the machine as manufactured by Verson, and the preferred safety device for the machine as changed by National (or Ward) were entirely different.

Most of the cross-examination related to the safety standards heretofore mentioned, and while we consider this evidence entirely pertinent and relative to the determination reached, such evidence is not controlling, i.e., customary methods, or accepted standards, are not at all conclusive and negligence may exist notwithstanding the fact that the method adopted was in accordance with customary procedures. However, industry adopted practices do carry weight in defining a standard of care. For instance, allegations of negligence based on improper design have not been upheld where the device is one in common and extensive use, conforming to the usual pattern. Realization after an accident that a machine might have been manufactured in a different way to possibly eliminate the accident should not bear on the determination of negligence. Poyas v. RKO Keith Orpheum, 221 N.Y.S. 2d 31.

In Getty Oil Co. v. Mills, 204 F. Supp. 179, an oil company brought an action to recover for losses sustained when a pipe inspected by an engineering company proved unsatisfactory because of leaks. The court refused to find that the losses incurred by the oil company as a result of leakage were attributable to negligence of engineering company inspection, recognizing that visual inspection within the industry was not shown to be other than the standard industrial practice. And the court held that custom or practice in a particular business is an important factor in determining the standard of due care.

Of course, usage cannot make a practice which is inherently dangerous reasonably safe. We do not consider this machine, as manufactured, inherently dangerous. Black’s Law Dictionary, p. 921 (4th Ed.), defines inherently dangerous as follows:

“Danger inhering in instrumentality or condition itself at all times, so as to require special precautions to prevent injury, not danger arising from mere casual or collateral negligence of others with respect thereto under particular circumstances.”

Be that as it may, we have reached the conclusion that there was no negligence on the part of appellant which rendered it liable to appellee. As earlier pointed out, the machine manufactured by Verson was a general purpose press brake, being equipped with a mechanical foot pedal and designed to be operated by one person; however, at the time of the accident the machine was operated by two electrical foot switches and two persons, and the operator no longer had the ability to vary the speed or the pressure applied and, in the sense of operation, the machine was no longer the same machine that Verson had manufactured. Of course, one is negligent when he does something that a person of ordinary prudence would not have done in the same or similar circumstances (or fails to do something that such a person would have done), but in addition, it must develop that the negligence was a proximate cause of the injury, and that injury was foreseeable. Appellee stated that she did not know how the accident happened, nor did any other witness know. Of course, both persons had to activate the switches before the ram would descend — and it would descend immediately! In other words, to accidentally commence the operation, it was not necessary to lift a foot 6 1/2 inches off the floor (as with the mechanical foot pedal), and furthermore, it was not necessary to depress same for 2 1/2 to 3 inches to cause the ram to operate at full force and speed. Could Verson have reasonably foreseen, eight years earlier, that its mechanical, one-foot pedal machine to be operated by one person would be changed to an operation involving two people, together with a change to operation by electrical switches? Of course, the machine was originally a general purpose press brake, but after the changes made, it became a special purpose machine. Appellee relies on the federal case of Rhoads v. Service Machine Co., 329 F. Supp. 367 (E.D. Ark. 1971), but there a special purpose machine was being operated, a 25 ton punch press. Here, however, the evidence reflects that the machine could be equipped to perform any number of tasks, including bending, creasing, punching, flaring (spreading outward), and others. So, in Rhoads the manufacturing company knew exactly what the machine would be used for — here, the machine was only a general purpose machine.

What we are saying is that the changes were drastic and the machine, the operation of which occasioned the injury, was not the same instrument which Verson manufactured.

In the case of Hanlon v. Cyril Bath Co., 541 F. 2d 343 (3rd Cir.), almost identical circumstances were present. The statement of the case presented the following facts:

“Appeal has been taken from a judgment entered upon a jury verdict that absolved Cyril Bath Co. from strict liability for an accidental injury suffered by the then 18 years old plaintiff, Robert Samuel Hanlon. He had been injured while operating a press brake that Cyril Bath had manufactured and sold some 17 years before the accident.
A press brake is a machine used to bend, form or punch metal. Essential force is supplied by a powered ram that moves vertically. At the time of this accident the activating component of the press brake in suit was a movable foot switch connected with the main structure by a long flexible cable.
During his summer vacation from school, young Hanlon was employed by the Wayne Iron Works. Newly assigned to operate the press brake, he attempted with his left hand to remove a piece of metal that had lodged in the machine. While so engaged, he accidentally moved his foot so that it pressed down upon the electrical foot switch lying on the floor. This activated the ram and caused it to descend upon and sever his fingers.
It is the theory of the complaint that the press brake, as manufactured and sold by appellee, Cyril Bath Co., was defective in that it lacked any safety device that would preclude activation while the operator’s hand was under the ram. This inadequacy of design is alleged to have been the proximate cause of the accident in suit. * * * Evidence that stands undisputed in the present record shows that the electrical starting device used by Hanlon had been substituted by the purchaser, Hanlon’s employer, for the very different starting mechanism that Cyril Bath had sold as a component of this press brake some 17 years before the accident. The original starter was a treadle attached to the front of the machine at a point some 8 inches above the floor. It was not an electrical switch. Indeed, it required an operator first to lift his foot a considerable distance and then to exert some 65 pounds of downward pressure on the treadle to release or activate the ram. In contrast the substituted starting device was a small portable electrical switch, connected with the press brake by a flexible cable. Hanlon described it as similar to a dictaphone pedal. It could conveniently be laid on the floor and no great pressure had to be exerted upon it to activate the ram. * * *

The court stated that this substitution of a significantly different and much more sensitive starting mechanism was a “substantial change in the condition in which the press brake was sold,” and then stated:

“Clearly, the substitution of the easily depressed mobile electrical foot simtch for the original fixed elevated mechanical treadle that was responsive only to some 65 pounds of downward pressure removed a safeguard against accidental activation that had been incorporated in the original structural design and would have been adequate to prevent this accident.” [Our emphasis.]

The court held that a verdict should have been directed for Cyril Bath Company, and it might be added that this case (Pa.) was one of strict liability, while in the case before us it is necessary that negligence be established.

In accord with what has been said, we hold that the Pulaski County Circuit Court should have granted the motion for a directed verdict.

Reversed and dismissed.

George Rose Smith and Hickman, JJ., dissent.

       This press brake was shipped to Toll Manufacturing Corporation, Inc., on March 12, 1964. At the time of the purchase, the Toll Company did fabricating work for Ward Supply as an independent contractor. Later, Ward Supply purchased the press brake, together with other equipment, from Toll. The Ward Company merged into National Aluminum Corporatcon on December 29, 1969, thereafter operating as National Aluminum Corporation, Ward Supply Division.

       The machine was described as being about 12 feet from right to left at bed and rim level and approximately 126 inches tall. From the floor to the top of the machine was approximately 10'6”, front to back close to 4 feet, and it was equipped to accept dies “that almost anybody could make.”

       According to Salzenstein, the “point of operation” is the area between the dies where the work is being performed. The term is further defined by .American National Standards Institute as “the point of operation is the area of the tooling or dies where material is actually positioned and work is being performed.”

       Whether foreseeability be considered in relation to proximate cause or in its relationship to negligence appears to be largely a matter of semantics. In Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S.W. 2d 117, we pointed out that the facts in a case did not show that injuries sustained were proximately caused by negligence on the part of the defendant, and further stated that we reached that conclusion whether we devoted our attention primarily to the question of negligence or to that of proximate cause.


author: Georoe Rose Smith, Justice.

text:
    Jo Anne FRANCO, Administratrix, et al v. Marion A. BUNYARD et al
    76-176
    547 S.W. 2d 91
    Opinion delivered February 28, 1977
    (In Banc)
    |Rehearing denied March 28, 1977.]

      McMalh, Leatkerman & Woods and John Lisle, for appellants.

      Putman, Davis & Bassett; Kelley & Luffman; and Wayne Harris, of Warner and Smith, for appellees.
   Georoe Rose Smith, Justice.

Early in June, 1971, Daniel Lon Graham, serving a life sentence for kidnaping, escaped from the state penitentiary. Late in the afternoon of June 17 he bought a secondhand pistol at Bunyard Supply Company, Inc., in the city of Rogers. The seller assertedly violated a federal statute and federal regulations in making the sale. On the next day Graham robbed a grocery store in Springdale, taking three young employees as hostages. In a nearby wooded area Graham used the gun to murder two of the young men and wound the third.

This action for the wrongful deaths and personal injuries was brought by the appellants against Bunyard Supply, against Marion A. Bunyard, its president, manager, and principal stockholder, and against the company’s national affiliate, Western Auto Supply Company. Upon the basis of extensive discovery depositions and similar proof, the defendants moved for summary judgment on the ground that there was no genuine issue as to any material fact. This appeal is from a judgment granting the motion. The trial judge reasoned that Graham’s criminal use of the gun was an intervening efficient cause not forseeable by the seller.

The federal gun control law and regulations were examined by the Supreme Court in Huddleston v. United States, 415 U.S. 814 (1974). As stated in that opinion, Congress was concerned with the widespread traffic in firearms and the ease with which they could be obtained by criminals and others not legally entitled to possess them. The court noted that the principal agent in the scheme of federal enforcement of the law is the licensed dealer. He is required to keep records of [acquisition and] disposition and is criminally liable for disposing of a weapon contrary to the Act. Information drawn from the records kept by licensed dealers is a prime guarantee of the Act’s effectiveness in keeping lethal weapons out of the hands of criminals.

The regulations issued under the Act are, in our opinion, the real key to its enforcement. The regulations require the licensed dealer, prior to making an over-the-counter delivery of a firearm to a purchaser, to complete Form 4473, the Firearms Transaction Record. That record must show the buyer’s name, address, date and place of birth, height, weight, and race, and must include his signed certification that he has not been convicted of a crime punishable by imprisonment for more than one year and that he is not a fugitive from justice. The seller, before transferring the gun, must require the buyer to identify himself in any manner customarily used in commercial transactions, as by a driver’s license. Form 4473 requires the number on the identification, such as the driver’s license number, to be entered on the form.

According to the proof as a whole, and especially the affidavit of Howard McDaniel, the Bunyard clerk who made the sale, there was not even a token compliance with the law. Graham entered the store an hour ór so before its 5:30 closing time. He first negotiated for the. purchase of a clothes washer and drier (to be delivered the next morning, to a fictitious address), evidently as a ruse for obtaining a pistol. He then inquired about buying a used gun, to protect his chickens against dogs. He had no wallet, no money, no driver’s license, no identification of any kind. Even so, after giving a worthless check for more than $400 for the washer-drier and the gun, he was allowed to leave the store with the pistol without even signing Form 4473, as required by the regulations. According to McDaniel, that form was not filled out until the next day, after it was learned that the store had been duped. There were, of course, omissions in the form as filled out, such as Graham’s driver’s license number. Again according to McDaniel, he forged the name that Graham had given (Bill Shaw). Marion Bunyard signed the required certification that “it is my belief that it is not unlawful for me to sell . . . the firearm” to the purchaser.

We have no doubt that upon the issue raised by the motion for summary judgment and argued here, the proof presents questions of fact as to the liability of Bunyard Supply. (The separate liability of Marion Bunyard is not argued.) The violation of a statute or valid regulation is ordinarily evidence of negligence. Bussell v. Missouri Pac. R.R., 237 Ark. 812, 376 S.W. 2d 545 (1964); AMI Civil 2d, 601 (1974). On the issue of proximate cause, it is enough to point out that the tragedies could not have occurred as they did if the federal rules had been obeyed. That is, Graham had no means of identification — an essential prequisite to the purchase of a gun. This is not, as the appellees argue, a mere matter of record keeping. Form 4473 required the seller to obtain and record Graham’s identification before handing over the gun. Graham had no identification. Thus, had the law been obeyed, he could not have obtained possession of the gun and could not have used it to shoot innocent men the next day. On the issue of foreseeability, we need say only that the very purpose of the law is to keep pistols out of the hands of such persons as Graham, who was both a convicted criminal and a fugitive from justice. It certainly cannot be said that his use of the gun in such a way as to injure others was not foreseeable. Of course it is not required that the precise sequence of events leading to the injury be foreseeable. Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S.W. 473 (1912).

There is, however, no proof of liability on the part of Western Auto Supply Company. It is a national concern having company-owned and home-owned stores throughout the country. Bunyard Supply did business as Western Auto Supply, but it was home-owned and so identified to the public. In the franchise contract Bunyard Supply reserved to itself the “ownership, management, and control” of the store. The national chain agreed to sell its various brands of merchandise to the local store, but the vital power of control remained with Bunyard. And, specifically, the federal license to sell guns was issued to Bunyard Supply, not to Western Auto Supply Company. There was certainly no partnership between the two companies; so, in the absence of any power on the part of Western Auto Supply Company to control the actions of Bunyard Supply, there is no basis for a finding of liability on the theory of agency or joint venture. Hinson v. Culberson-Stowers Chevrolet, 244 Ark. 853, 427 S.W. 2d 539 (1968); Bennett v. Gundolf, 238 Ark. 582, 383 S.W. 2d 289 (1964).

As to Western Auto Supply Company, the judgment is affirmed; as to Bunyard Supply Company and Marion Bunyard, the judgment is reversed and the cause remanded.